3634 Federal Register / Vol. 73, No. 14 / Tuesday, January 22, 2008 / Rules and Regulations 

State County (Fee/acre/yr) 

SNOHOMISH 

THURSTON 

WAHKIAKUM 

WHATCOM 

WEST VIRGINIA ................................................... ALL COUNTIES ........................................................................................... 30.11 

WISCONSIN ......................................................... ALL COUNTIES ........................................................................................... 22.58 

WYOMING ............................................................ ALBANY ....................................................................................................... 7.51 

CAMPBELL 

CARBON 

CONVERSE 

GOSHEN 

HOT SPRINGS 

JOHNSON 

LARAMIE 

LINCOLN 

NATRONA 

NIOBRARA 

PLATTE 

SHERIDAN 

SWEETWATER 

FREMONT 

SUBLETTE 

UINTA 

WASHAKIE 

BIG HORN ................................................................................................... 22.58 

CROOK 

PARK 

TETON 

WESTON 

ALL OTHER ZONES ............................................ ...................................................................................................................... 5.74 

[FR Doc. E8–884 Filed 1–18–08; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF COMMERCE 

International Trade Administration 

19 CFR Part 351 

[Docket No. 0612243018–8043–01] 

RIN 0625–AA73 

Antidumping and Countervailing Duty 

Proceedings: Documents Submission 

Procedures; APO Procedures 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

ACTION: Final rule. 

SUMMARY: The Department of Commerce 

(‘‘the Department’’) is amending its 

regulations in antidumping (‘‘AD’’) and 

countervailing duty (‘‘CVD’’) 

proceedings governing information 

submitted to the Department and 

administrative protective orders in order 

to improve the Department’s procedures 

and provide clarification to some 

aspects of the Department’s regulations. 

Specifically, the Department is 

amending its regulations as follows: To 

reflect a transfer in the function of 

receiving submissions filed in AD/CVD 

proceedings from the Central Records 

Unit to the Administrative Protective 

Order (‘‘APO’’) Unit, and to change the 

name of the APO Unit to APO/Dockets 

Unit; to reflect the fact that the Central 

Records Unit has moved to Room 1117 

of the Herbert C. Hoover Building; to 

reflect a transfer in the function of 

maintaining public service lists from the 

Central Records Unit to the APO/ 

Dockets Unit; to update the definition of 

‘‘Customs Service’’ to reflect the 

reorganization of the Executive Branch; 

to clarify that documents filed with the 

Department will only be time stamped 

when appropriate, for example, when an 

interested party submits a request for 

treatment as a voluntary respondent; to 

clarify when an APO will be placed on 

the record with respect to new shipper 

reviews, applications for scope rulings 

and changed circumstances reviews; to 

clarify when a party must serve business 

proprietary information already on the 

administrative record to new authorized 

applicants to the APO; to require parties 

to file a formal letter of appearance to 

request placement on the public service 

list of any segment of an AD/CVD 

proceeding, either as a cover letter to the 

APO application or as a separate 

document; and to clarify when a party 

is to be considered an ‘‘interested party’’

for the purposes of the APO. Finally, the 

Department is amending its short form 

application for access under an APO 

(Form ITA–367). 

DATES: Effective Date: The effective date 

of this final rule is February 21, 2008. 

The amended regulations will apply to 

all investigations initiated on the basis 

of petitions filed on or after February 21, 

2008, and other segments of proceedings 

requested or initiated after this date. 

The amended APO application form 

will be effective for all ongoing 

segments pending before the 

Department as of the effective date or 

initiated on or after the effective date, 

except those segments initiated before 

June 3, 1998. 

FOR FURTHER INFORMATION CONTACT: Ann 

Sebastian at (202) 482–3354, William 

Kovatch at (202) 482–5052 or Carrie 

Owens at (202) 482–1353. 

SUPPLEMENTARY INFORMATION: 

Background 

Pursuant to section 777(c)(1)(A) of the 

Tariff Act of 1930, as amended (‘‘the 

Act’’) (19 U.S.C. 1677f(c)(1)(A)), the 

Department must make available to 

interested parties, under an APO, 

business proprietary information 

submitted to it during the course of an 

antidumping or countervailing duty 

proceeding. Section 777(c)(1)(B) of the 

Act authorizes the Department to issue 

regulations governing the APO process. 

The Department’s current regulations 

are codified at 19 CFR part 351. 

On January 8, 2007, the Department 

published proposed amendments to the 

rules governing procedures for 

providing access to business proprietary 

information submitted to the 


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Federal Register / Vol. 73, No. 14 / Tuesday, January 22, 2008 / Rules and Regulations 3635 

Department by other parties in U.S. 

antidumping (‘‘AD’’) and countervailing 

duty (‘‘CVD’’) proceedings, and 

requested comments from the public. 

Antidumping and Countervailing Duty 

Proceedings: Documents Submission 

Procedures; APO Procedures; Proposed 

Rule, 72 FR 680 (‘‘January Notice’’). 

After analyzing and carefully 

considering all of the comments that the 

Department received in response to the 

January Notice and after further review 

of the provisions of the proposed rule, 

the Department is publishing final 

regulations. In an effort to continue to 

protect business proprietary information 

from unauthorized disclosure while 

permitting authorized applicants access 

to needed information, these regulations 

improve the Department’s APO process, 

and clarify some prior regulatory 

provisions as they relate to that process. 

Effective Date 

The new APO procedures, including 

the use of the revised application for an 

APO, form ITA–367 (2.08), will become 

effective February 21, 2008. The 

amended regulations will apply to all 

investigations initiated on the basis of 

petitions filed on or after February 21, 

2008, and other segments of proceedings 

requested or initiated after this same 

date. Segments of proceedings to which 

these regulations do not apply will 

continue to be governed by the 

regulations in effect on the date the 

petitions were filed or other segments 

were initiated. The amended Form ITA–

367 will apply to all ongoing segments 

pending before the Department as of the 

effective date and all segments initiated 

on or after the effective date, unless the 

segment was initiated before June 3, 

1998. 

Explanation of Particular Provisions 

Section 351.102(b). Definitions. 

Definition of ‘‘Customs Service’’ and 

‘‘Interested Party’’ 

Section 351.102(b) is definitional. 

Substantively, most of the definitions in 

this section remain unchanged from the 

prior regulation. The prior regulation, 

however, listed the terms in 

alphabetical order, without sequentially 

numbering the terms. The new 

regulation sets forth the terms defined 

in section 351.102(b) in sequentially 

numbered paragraphs, which will allow 

the Department to administer the APO 

function in a more precise manner. 

The Department has changed the 

definition of one of the terms listed in 

section 351.102(b), and added another. 

Specifically, in light of the recent 

reorganization of the Executive Branch, 

the Department has changed the 

definition of the term ‘‘Customs 

Service’’ to mean United States Customs 

and Border Protection of the United 

States Department of Homeland 

Security. 

The Department has also added a 

definition of the term ‘‘interested party’’

to section 351.105(b) for the purpose of 

submitting an APO application. Under 

the prior regulation, ‘‘interested party’’

was not defined, which created some 

confusion and difficulty in processing 

APO applications. Specifically, under 

section 351.305(b)(2), only the 

representatives of interested parties who 

are parties to the proceeding may apply 

for APO access. The Department takes 

seriously its responsibility to ensure 

that only persons authorized to have 

access to the business proprietary 

information submitted in any segment 

of a proceeding are granted such access 

under the APO. The APO application 

was designed to permit the Department 

to determine whether the applicant does 

indeed represent an interested party, 

and thus qualifies for access under the 

APO. To that end, Form ITA–367 

requires the applicant to identify the 

interested party status of the party 

represented by checking ‘‘petitioner,’’

‘‘respondent,’’ or ‘‘other.’’ If the 

applicant checks ‘‘other,’’ the form 

requires the applicant to identify the 

section of the Department’s regulations 

that defines the party’s interested party 

status. Under the prior regulations, this 

was not possible because the regulations 

did not provide a definition of the term 

‘‘interested party.’’

This situation caused a problem for 

the Department in identifying and 

verifying the interested party status of 

the party represented by the applicant, 

when the applicant did not represent a 

petitioner or a respondent. Specifically, 

the Department has experienced some 

problems in verifying when a party who 

is participating independently from any 

other party is an importer, as defined by 

the Act. For this reason, the Department 

has amended section 351.105(b) to 

include the definition of ‘‘interested 

party,’’ and require applicants to 

indicate the specific section of the 

regulations that is the basis of the 

party’s status as an interested party. 

This definition does not differ from 

the definition of ‘‘interested party’’

provided in section 771(9) of the Act, 

except that an importer of subject 

merchandise is defined in a different 

subparagraph from a manufacturer, 

producer and exporter of the subject 

merchandise. Defining ‘‘importer’’ in its 

own subparagraph is necessary to 

permit Department officials to readily 

identify when an applicant for APO 

access represents an importer. 

One commentor has expressed 

concerns that requiring a party to be 

more precise in identifying its status as 

an interested party may prove 

problematic. Specifically, the 

commentor considered that such a 

requirement could lead to the filing of 

a separate APO application for all of a 

respondent’s affiliates who are 

interested parties. Often a respondent 

and its affiliated importer or importers 

are represented by the same firm, 

because their interests are aligned. In 

the commentor’s view, requiring 

separate APO applications for each of 

the interested parties in such a situation 

could become unwieldy and 

burdensome. This commentor notes that 

the purpose of the APO application is to 

permit the representative of an 

interested party to see the business 

proprietary information of other parties 

to the proceeding in order to adequately 

represent the client’s interest. When one 

firm already has access to the 

information under APO, no additional 

purpose is served by filing an additional 

APO application for each of the 

respondent’s affiliates. 

In response to this commentor’s 

concerns, it is not the Department’s 

intention to alter its practice with 

respect to the APO application of a 

respondent and its affiliates who are all 

represented by the same firm. The 

commentor is correct that one purpose 

of the APO application is to permit the 

representative of a party to the 

proceeding to see the business 

proprietary information on the record of 

that segment of the proceeding to 

advocate for that party’s interests. 

Another purpose of the application is to 

allow the parties submitting business 

proprietary information to the 

Department to know who is applying for 

access to that information, and what 

parties they represent. Where the same 

firm represents an interested party and 

the interested party’s affiliates, there is 

no need to file separate APO 

applications for each of the affiliates. An 

applicant who represents an interested 

party and the interested party’s affiliates 

may still file a single APO application, 

however, the applicant must identify in 

the application each of the affiliates he 

or she is representing. If an applicant 

represents multiple non-affiliated 

interested parties, the applicant may 

also include all of the interested parties 

on the same application. Any necessary 

clarifications with respect to the 

interested parties should be provided in 

the cover letter to the application, or as 

an attachment to the application. 

This amendment to the regulations is 

aimed at identifying when an applicant 

represents an importer participating 


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3636 Federal Register / Vol. 73, No. 14 / Tuesday, January 22, 2008 / Rules and Regulations 

independently from any other 

respondent. When the representative of 

such an importer has applied for APO 

access, the Department has experienced 

some difficulty in confirming that the 

importer imports the subject 

merchandise from the county that is 

covered by the specific proceeding in 

question. Identifying when such an 

importer is participating in a segment of 

a proceeding is the first step needed to 

ensure that there is sufficient evidence 

to demonstrate that the importer is 

indeed an interested party, and its 

representative entitled to access to other 

parties’ business proprietary 

information under APO. This is 

necessary for the Department to ensure 

that it is protecting the business 

proprietary information submitted to it 

during any segment from disclosure to 

any person not authorized to see the 

information. 

Sections 351.103(a), 351.103(b), 

351.103(c), 351.103(d) and 351.303(b). 

Location and Functions of the Central 

Records Unit and the APO Unit, Filing 

Documents, and Service Lists 

The Department is amending section 

351.103(a) to reflect that fact that the 

Central Records Unit has moved to a 

new location within the Herbert C. 

Hoover Building. The Central Records 

Unit is now located in Room 1117. 

The Department is further amending 

sections 351.103(a), 351.103(b), 

351.103(c), and 351.103(d) of the 

regulations to reflect the transfer of the 

function of receiving submissions in 

antidumping and countervailing duty 

proceedings (i.e. the docket function) 

from the Central Records Unit to the 

APO Unit, and to change the name of 

the APO Unit formally to the APO/ 

Dockets Unit. 

The Department is also amending 

section 351.103(c) to provide that a 

document will only be required to be 

stamped with the time of receipt in 

order to be considered timely filed, 

where necessary. Documents submitted 

to the Department will still be required 

to be stamped with the date of receipt. 

However, the Department no longer 

believes that it is necessary to time 

stamp every document submitted. 

There are a few instances where it 

will continue to be necessary to time 

stamp a document to establish 

timeliness. These instances include 

when the Department establishes a time 

other than the close of business as the 

deadline for the submission, and when 

the Department exercises its discretion 

to accept voluntary respondents. With 

respect to requests to be treated as a 

voluntary respondent, the time stamp is 

necessary to establish the order in 

which the Department receives such 

requests. Department officials and the 

APO/Dockets Unit will continue to 

coordinate with each other to determine 

whether it is necessary for a document 

to be time stamped, and to communicate 

such necessity with interested parties. 

The Department is amending section 

351.103(d) to require interested parties 

who wish to be placed on the public 

service list to file a letter of appearance 

to make its request. The letter of 

appearance should identify the name of 

the interested party, how that party 

qualifies as an interested party, and the 

name of the firm representing that 

interested party, if appropriate. If an 

interested party is participating in 

conjunction with affiliated parties, the 

letter of appearance must list all of the 

affiliates. If a single firm is representing 

multiple interested parties, affiliated or 

unaffiliated, a single letter of 

appearance may be filed to cover all of 

the parties so represented. If the 

interested party is a coalition or 

association as defined in sections 

771(9)(A), (E), (F) or (G) of the Act, the 

letter of appearance must identify all 

members of the coalition or association. 

Because the letter of appearance 

includes factual information (i.e. the 

name of the interested party, how the 

party qualifies as an interested party), 

the certification requirements of section 

351.303(g) apply. 

One commentor expressed its support 

of this requirement. However, the 

commentor stated that the Department 

should clarify that this requirement 

does not apply to petitioners. The 

commentor contends that the petition 

already contains the information that 

would appear on the letter of 

appearance, which would make the 

additional formal letter of appearance 

unnecessary. 

Another commentor stated that while 

it has no objection to formalizing the 

requirement that a party file an entry of 

appearance, the Department should not 

require that this be a separate filing. The 

commentor contended that this 

requirement of a separate filing would 

be inefficient and burdensome on the 

parties. Specifically, the commentor 

noted that many parties file their APO 

applications with a cover letter which 

also serves as an entry of appearance on 

behalf of the interested party. Requiring 

two separate filings would waste 

resources and increase administrative 

burdens on the parties unnecessarily. 

This commentor suggested that the 

requirement of a separate filing would 

be more appropriately aimed at parties 

who do not seek access to business 

proprietary information under the APO, 

but who wish to monitor the 

proceedings. 

This commentor noted that under the 

Department’s amended regulations and 

the revised Form ITA–367, interested 

parties will be required to categorize 

how they qualify as interested parties in 

the APO application without the 

requirement of a certification. Requiring 

a separate entry of appearance, with a 

certification from the party, would treat 

identical information inconsistently. It 

would also be burdensome to require 

parties to make multiple filings of 

similar information. Accordingly, this 

commentor suggested that the 

Department should simply require 

parties to file an entry of appearance 

and APO application together with a 

single certification of the entire 

submission. 

In response to these comments, the 

Department’s purpose in proposing a 

requirement to file a letter of appearance 

as a separate document was to ensure 

that Department officials update the 

public service list when a party begins 

participating in an administrative 

proceeding. It is also the Department’s 

desire, where possible, to minimize the 

burden on the parties when submitting 

documents during any proceeding. 

The Department agrees with the point 

made by both commentors that 

sometimes it is not necessary to require 

the letter of appearance to be an entirely 

new and separate submission. For 

example, in an investigation, the 

Department’s regulations already 

require the petition to contain detailed 

information concerning the petitioner 

and the domestic industry. See 19 CFR 

351.202(b). This information in the 

petition is already subject to 

certification requirements. See 19 CFR 

351.202(c). 

Similarly, when applying for APO 

access, Form ITA–367 requires the 

representatives of an interested party to 

disclose how the party qualifies as an 

interested party, and the contact 

information of the firm representing the 

interested party. Currently, the APO 

application requires a certification from 

the applicant, but not from the party 

itself. Nonetheless, as one commentor 

noted, many parties currently do file an 

entry of appearance as the cover letter 

to the APO application. 

In this regard, the Department agrees 

with the commentor that it is sufficient 

to require a party requesting APO access 

to submit a letter of appearance as a 

cover letter to the APO application, and 

thus the Department has revised section 

351.305(b)(2) to provide for this 

clarification. The interested party would 

be required to certify as to the accuracy 


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Federal Register / Vol. 73, No. 14 / Tuesday, January 22, 2008 / Rules and Regulations 3637 

1Under the Department’s regulations, an 

interested party may not apply for access under 

APO if that party only intends to ‘‘monitor’’ the 

proceeding. Rather, only a representative of a party 

to the proceeding can apply for APO access. 19 CFR 

351.305(b)(2). The regulations define a party to the 

proceeding as ‘‘any interested party that actively 

participates through written submissions of factual 

information or written argument, in a segment of a 

proceeding.’’ 19 CFR 351.102. 

of the information contained in the 

letter of appearance. 

It should be noted, however, that the 

APO application is not a submission 

made by the party itself. Rather it is a 

submission made by the representative 

of the party to request access to the 

business proprietary information 

submitted in that segment. Accordingly, 

the Department does not believe that it 

is necessary for the party to certify to 

the contents of the APO application. 

Rather, it is sufficient for the 

representative applying for access under 

APO to certify to the accuracy of the 

information contained in the APO 

application. Such certification is already 

included in Form ITA–367. 

Nonetheless, interested parties are not 

required to apply for APO access in 

order to participate in a segment before 

the Department. Many parties choose 

not to apply for access to the business 

proprietary information submitted by 

other parties, yet still participate by 

submitting factual information or 

written argument.1 The Department 

considers that it is appropriate to 

require these parties to submit a 

separate letter of appearance as a 

request to be placed on the public 

service list of the particular segment in 

which it is participating, and thus the 

Department has revised section 

351.103(d)(1) to include language for 

this provision. 

Section 351.204(d). Requests for 

Treatment as a Voluntary Respondent 

As provided in section 351.204(d) of 

the Department’s regulations, if the 

Department limits the number of 

exporters or producers individually 

examined under section 777A(c)(2) or 

section 777A(e)(2)(A) of the Act, the 

Department will examine voluntary 

respondents in accordance with section 

782(a) of the Act. In order to be able to 

clearly identify voluntary respondents, 

and discern the order in which requests 

for voluntary respondent treatment have 

been submitted, the Department is 

amending section 351.204(d) to require 

an interested party seeking voluntary 

respondent treatment to indicate its 

request clearly on the first page of the 

first submission. This will alert the 

APO/Dockets Unit to the fact that the 

submission should be time stamped. 

This amendment is made in conjunction 

with the amendment to section 

351.103(c) of the regulations. The 

Department received no comments on 

this amendment. 

Section 351.305(a). Placing APOs on the 

Record in New Shipper Reviews, 

Applications for Scope Rulings, and 

Changed Circumstances Reviews 

The Department is amending section 

351.305(a) of the regulations to place an 

APO on the record within five business 

days of the filing of a request for new 

shipper review, an application for a 

scope ruling, a request for a changed 

circumstances review or the selfinitiation of a changed circumstances 

review by the Department. The 

Department is also clarifying that the 

reference to ‘‘days’’ in this section of the 

regulations refers to business days. 

Under the prior regulations, the 

Department would place an APO on the 

record within two days of the filing of 

a petition, or five days of initiating any 

other segment of a proceeding. At times, 

however, when determining whether to 

initiate a new shipper review, a scope 

inquiry or a changed circumstances 

review, the Department is required to 

consider business proprietary 

information. Accordingly, the 

Department finds it appropriate to 

permit representatives of interested 

parties to have access under APO to any 

business proprietary information 

submitted to the Department initiates 

these segments. 

One commentor expressed support for 

this change, noting that the change 

recognizes the problem created when 

the Department denies access to 

business proprietary information before 

these segments are initiated, and 

attempts to address it. 

Section 351.305(b). Service Requirement 

of Documents Already on the 

Administrative Record to New 

Authorized Applicants 

The Department is amending section 

351.305(b) of its regulations to require 

the service of all business proprietary 

information on the record on the 

representative of a party filing a timely 

application for APO access within two 

business days of the approval of the 

application. A timely application is one 

filed before the first questionnaire 

response has been submitted. 

When an application is filed after the 

day on which the first questionnaire 

response is submitted, the parties will 

have five business days from the 

approval of the application to serve all 

business proprietary information on the 

record to the new authorized applicant. 

When the representative of a party files 

an application after the submission of 

the first questionnaire response, that 

representative is liable for costs 

associated with the additional 

production and service of business 

proprietary information already on the 

record. 

One commentor proposed that the 

five day period should continue to 

apply in all circumstances. According to 

this commentor, the five day period has 

not caused any undue delays. Moreover, 

this commentor noted that imposing a 

more demanding requirement before 

responses have been filed would 

disproportionately affect petitioners. 

This commentor contends that the twoday requirement is intended to conform 

with the International Trade 

Commission’s requirement that the 

petition be served within two days of 

the establishment of the Commission’s 

APO service list. However, the 

commentor noted that the Commission 

issues its preliminary determination 

within 45 days of the filing of the 

petition, whereas the Department issues 

its preliminary determination 140 days 

after initiation of the investigation. 

We have not adopted the commentor’s 

suggestion. The requirement to serve all 

business proprietary information on the 

record within two days of the approval 

of a timely APO application existed 

prior to the adoption of the 1998 

regulations. This requirement was 

inadvertently deleted from the 

regulations adopted in 1998. 

As the commentor noted, the 

Commission’s regulations already 

require the petitioner to serve the 

petition on all parties who apply for 

APO access within two days of 

receiving notification of the 

Commission’s approval of an APO 

application. 19 CFR 207.10(b)(1)(i). 

Thus, adopting a two-day requirement 

in the Department’s regulations will not 

be unduly burdensome. 

Section 351.305(d). Additional 

Documentation Required for Importers 

The Department is adding section 

351.305(d) to its regulations, requiring 

the representatives of importers to 

provide documentary evidence 

confirming the interested party’s status 

as an importer of the subject 

merchandise from the country subject to 

the proceeding. This requirement is 

necessary to permit the Department to 

ensure that only those who are 

authorized to receive access to the 

business proprietary information 

submitted to the record (that is, the 

representatives of interested parties who 

are also parties to the proceeding) gain 

access to that information. 

One commentor objected to this new 

requirement. This commentor contends 


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2Some alternatives exist to calculating individual 

margins and subsidization rates for each known 

exporter or producer. They include using 

statistically valid samples and limiting the number 

of exporters or producers examined due to 

practicality. See sections 777A(a)(1), 777A(c)(2) and 

777A(e)(2). 

that there can be no justification for 

imposing this burden on importers, 

which it argues is discriminatory. The 

commentor argues that the statute 

makes no distinctions among the 

interested parties when it comes to 

granting access to business proprietary 

information. Accordingly, all interested 

parties must be treated the same way. 

The commentor argues that the 

Government may not discriminate 

against similarly situated persons 

without a rational basis for the 

differential treatment. The commentor 

does not believe that the Department 

has given sufficient justification for 

imposing this new burden on importers 

alone. Rather, the commentor contends 

that the Department could just as easily 

have a concern with whether a party 

claiming to be a domestic manufacturer, 

a union or an association is a bona fide 

interested party. The commentor urges 

the Department to drop its proposal. 

We disagree that importers are in a 

similar situation as other interested 

parties and that there is no rational 

reason for this requirement. Therefore, 

we have not adopted the commentor’s 

suggestion. Specifically, as a matter of 

evidence, it is often easier for the 

Department to confirm whether a party 

claiming to be a domestic interested 

party or a respondent is in fact an 

interested party than it is to confirm 

whether a party is an importer of subject 

merchandise. That is, evidence 

demonstrating the interested party 

status of the domestic interested parties 

and the respondent is often already on 

the record in AD and CVD proceedings 

when such parties apply for APO 

access. By contrast, when an importer is 

participating independently from an 

exporter or manufacturer of subject 

merchandise, the Department requires 

evidence to confirm that the party is 

indeed an importer of subject 

merchandise before granting APO 

access. 

Given the serious task that has been 

assigned to the Department, namely the 

protection of business proprietary 

information submitted to it during an 

AD or CVD proceeding (see section 

777(b)(1)(A) of the Act), the Department 

must proceed carefully to ensure that 

the parties whose representatives are 

applying for APO access do indeed 

qualify for such access. That is, the 

Department must be sure that the 

business proprietary information is not 

disclosed to those who are not 

authorized to see it. 

Such evidentiary problems generally 

do not exist in identifying when the 

representative seeking APO access 

represents a petitioner or other domestic 

producer or a union or an association of 

domestic producers. In an investigation, 

the petitioner must submit its petition, 

and include detailed information 

regarding itself and the domestic 

industry. See 19 CFR 351.202(b). This 

includes the names, addresses and 

telephone numbers of all known 

persons in the industry. 19 CFR 

351.202(b)(2). In this regard, section 

732(c)(4) of the Act charges the 

Department with determining whether 

the petition has sufficient support from 

the domestic industry. To do this, the 

Department must be apprised of the 

identity of those who are members of 

the domestic industry and examine 

production data for those members 

identified. Because this information is 

placed on the administrative record 

before the initiation of any AD or CVD 

investigation, the Department normally 

does not require additional information 

to confirm the identity of petitioners in 

an investigation. 

Similarly, in an AD investigation, the 

petition must identify the names and 

addresses of all of the persons whom the 

petitioner believes are selling the 

subject merchandise at less than fair 

value. 19 CFR 351.202(b)(7)(i)(A). In a 

CVD investigation, the petitioner must 

identify the names and addresses of all 

of the persons whom the petitioner 

believes are benefitting from a 

countervailable subsidy and are 

exporting to the United States. 19 CFR 

351.202(b)(7)(ii)(A). Indeed, as a general 

rule, the Department calculates an 

individual weighted-average dumping 

margin or an individual countervailable 

subsidy rate for each known exporter or 

producer. See sections 777a(c)(1) and 

777A(e)(1) of the Act; 19 CFR 

351.204(b).2 Thus, as a general matter, 

AD and CVD investigations are specific 

to identified exporters and producers. 

For the Department to accomplish its 

task, it must have on the administrative 

record information identifying who the 

exporters or producers are. Indeed, the 

Department generally only receives APO 

applications from representatives of 

foreign producers and exporters who are 

asked to provide information pertaining 

to their sales and production of subject 

merchandise, or who wish to become 

voluntary respondents and thus 

likewise provide the Department with 

their sales and production information. 

That information confirms the status of 

such foreign producers and exporters as 

interested parties. Thus, when the 

representative of a foreign producer or 

exporter applies for APO access, 

generally the evidence confirming that 

the respondent is an interested party is 

already on the administrative record. 

While it is true that the petition must 

also contain information regarding the 

known importers or likely importers of 

the subject merchandise (see 19 CFR 

351.202(b)(9)), the Department may not 

have the same amount of evidence on 

the administrative record identifying all 

of the importers of the subject 

merchandise. Moreover, it is possible 

that there are other importers, who are 

not known to the petitioner, who import 

the subject merchandise and desire to 

participate as a party to the proceeding. 

Moreover, as evidenced by section 

351.213(b) of the Act, when the 

Department conducts an administrative 

review of an AD or CVD order, as a 

general matter the Department will 

review specific exporters or producers. 

The Department generally only receives 

APO applications from representatives 

of foreign producers or exporters in 

administrative reviews when those 

parties have requested a review for 

themselves, or have otherwise been 

identified in a request for review as 

producers or exporters of the subject 

merchandise. Thus, again, the identity 

of the exporter or producer of the 

subject merchandise in an 

administrative review is often not in 

question. 

With regard to coalitions or 

associations as defined in subparagraph 

(A), (E), (F) or (G) of section 771(9) of 

the Act, section 351.103(d)(1) of these 

amended regulations clearly require that 

the letter of appearance identify all of 

the members of the coalition or 

association. This is meant to permit the 

Department to confirm that the coalition 

or association qualifies as an interested 

party under the Act, and thus qualifies 

to be a party to the proceeding. 

When it is appropriate, such as when 

there is a new party to the proceeding 

that has not participated in the 

investigation, the Department’s practice 

is to request further information from 

the party to confirm that the party is in 

fact an interested party. This practice 

applies not only with respect to 

coalitions and associations, but also 

with respect to trade unions and other 

parties claiming to be domestic 

interested parties who have not 

previously participated in any segment 

of the proceeding. 

By contrast, the Department does not 

always have on the administrative 

record evidence identifying all of the 

importers of the subject merchandise 

when the representatives of such 

importers apply for access under the 


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Federal Register / Vol. 73, No. 14 / Tuesday, January 22, 2008 / Rules and Regulations 3639 

APO. One context in which this 

problem often arises is where there are 

companion AD or CVD investigations 

involving the same merchandise, but 

exported from different countries. 

Sometimes, an importer will import the 

subject merchandise from one of the 

countries which are the subject of the 

investigations, but not others. The 

requirement to provide documentary 

evidence of the importer’s interested 

party status is meant to ensure that the 

representatives of such importers are 

applying for APO access only in those 

particular proceedings in which the 

importer qualifies as an interested party. 

The burden that the Department is 

placing on the importer is not great. In 

most instances, a copy of Customs 

Forms 7501 will suffice. Indeed, the 

Department prefers that the Custom 

Form 7501 serve as the documentary 

evidence. This is a document that is 

likely already in the possession of the 

importer, and not difficult to produce 

when the representative is applying for 

APO access. In other instances, the 

interested party may be able to satisfy 

the requirement by submitting any other 

credible documentary evidence 

demonstrating that it either imports or 

intends to import the subject 

merchandise. When it is not practical 

for an importer to submit a copy of 

Customs Form 7501, the Department 

will work with the importer to 

determine if other documentary 

evidence exists that will be sufficient to 

confirm the importer’s status as an 

interested party. 

The Department is also correcting the 

language of section 351.305(d) as 

published in the January Notice 

concerning the required documentary 

evidence demonstrating that a party 

imports merchandise subject to the 

antidumping or countervailing duty 

proceeding. The correction is to clarify 

that this evidentiary requirement 

applies with respect to each segment of 

an antidumping or countervailing duty 

proceeding, and is not limited to certain 

specific segments of the proceeding. The 

language as published in the January 

Notice does not clearly state that this 

documentary evidence is required from 

importers in the investigation stage of a 

proceeding as well as in subsequent 

segments of the proceeding as was the 

Department’s intent. Thus the 

Department has revised section 

351.305(d) to require, from a party 

claiming to be an interested party by 

virtue of being an importer, 

documentary evidence demonstrating 

that the party imports merchandise 

either subject to the antidumping or 

countervailing duty proceeding, or 

subject to a scope inquiry. 

One commentor expressed confusion 

with the Department’s explanation of its 

proposed amendment, specifically as it 

applies to parties who intend to import 

a product that is subject to a scope 

inquiry. This commentor argues that the 

Department regularly declines to initiate 

scope inquiries where the product is yet 

to be imported, and that the Department 

should not alter this practice. 

In response to this comment, the 

Department’s practice is to issue a scope 

ruling or conduct a scope inquiry when 

the party requesting the ruling can show 

that the specific product in question is 

actually in production. The product 

need not be imported into the United 

States so long as the requestor can show 

evidence that the product is in 

production. The Department will not 

issue a scope ruling or conduct a scope 

inquiry on a purely hypothetical 

product. In line with this practice, the 

Department believes that it is 

appropriate to permit a party who is a 

potential importer of the product subject 

to the scope inquiry access to 

proprietary information under APO. 

The Department has clarified section 

351.305(d) to conform to its practice. 

Where the segment in question concerns 

a specific time period, such as an 

investigation or an administrative 

review, the party claiming to be an 

importer must show documentary 

evidence, preferably Customs Form 

7501, that it imported subject 

merchandise during the applicable 

period of investigation or period of 

review. For a scope inquiry, however, 

any interested party may participate in 

the scope inquiry. Thus, an importer 

may be given APO access during a scope 

inquiry, provided it can provide 

documentary evidence, again preferably 

a Customs Form 7501, that it imported 

subject merchandise. For those 

situations where the product subject to 

the scope inquiry is in production, but 

has not yet been imported into the 

United States, a potential importer of 

such product may be permitted to 

participate as a party to the proceeding, 

and be given access to the proprietary 

information under the APO, provided 

that the party can demonstrate that it 

has taken steps towards importing the 

merchandise in question. Such 

evidence, for example, can consist of 

preliminary communications 

concerning the product between the 

importer and the manufacturer or 

supplier. 

Form ITA–367, Short Form Application 

for APO 

The Department is amending Form 

ITA–367 to require APO applicants in 

new shipper reviews to specifically 

identify the name of the exporter(s)/ 

producer(s) that is/are covered by the 

new shipper review. This is necessary 

because the Department can initiate 

multiple new shipper reviews on the 

same date covering different 

manufacturers or exporters. While it is 

the Department’s practice to issue a 

single APO for multiple new shipper 

reviews involving the same subject 

merchandise if initiated on the same 

date, the periods of review in question 

may not always be congruent. That is, 

the Department at times may exercise its 

discretion to expand the period of 

review for one new shipper, but not for 

another, depending on the 

circumstances. To accurately identify 

the APO governing new shipper reviews 

and to help identify the APO and public 

service lists for these segments, it is the 

Department’s practice to individually 

name all of the parties being reviewed 

within the heading of these documents. 

Because the Department may conduct 

several scope inquiries during the 

existence of an AD or CVD order, to 

provide further clarity the Department is 

amending Form ITA–367 to specifically 

identify the product in question that is 

covered by the scope review. 

To identify with more clarity when an 

applicant is applying for APO access in 

a changed circumstances review, the 

Department is amending Form ITA–367 

to allow applicants to check ‘‘changed 

circumstances review’’ and identify the 

date on which the request for a changed 

circumstances review was filed. 

To ensure timely distribution of the 

APO service list and any amendments 

thereto, the Department is amending 

Form ITA–367 to require the 

identification of the ‘‘Lead Applicant,’’

and to request an email address for the 

receipt of service lists. 

The Department is issuing a 

clarification regarding the effective date 

of the amended Form ITA–367. The 

effective date for the amended Form 

ITA–367 is February 21, 2008. It is the 

Department’s intention to use only this 

new version of Form ITA–367, in all 

segments pending before the 

Department as of the effective date, 

except those initiated before June 3, 

1998. The Department will post this 

version of Form ITA–367 and remove 

any prior versions of the form from the 

Import Administration’s Web site. 

Parties who practice before the 

Department are advised to update any 

word processing file they may use to 

prepare Form ITA–367, to reflect the 

amendments made to the current 

version of the form. 

To ensure that parties who practice 

before the Department need not keep 

track of multiple versions of Form ITA–


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3640 Federal Register / Vol. 73, No. 14 / Tuesday, January 22, 2008 / Rules and Regulations 

367, the Department is amending 

section 351.305(b)(2) of its regulations, 

by inserting the words ‘‘the current 

version of’’ before the word ‘‘Form ITA–

367’’ in the first sentence of the 

regulation. By doing so, the Department 

is clarifying that should it amend Form 

ITA–367 again in the future, the new 

version of the form shall be used in all 

segments pending before the 

Department as of the effective date of 

the new form, and not only in those 

segments initiated on or after the 

effective date. 

There are currently a few segments of 

proceedings initiated before June 3, 

1998 still pending before the 

Department, all of which concern 

suspension agreements. Due to the fact 

that the rules concerning the authorized 

use of the business proprietary 

information submitted in those 

segments differ from segments initiated 

under the current version of the 

Department’s APO regulations, the 

Department believes that it is 

appropriate for parties who wish to 

apply for access under APO in segments 

concerning those suspension 

agreements to use the version of Form 

ITA–367 that was in effect before June 

3, 1998. However, the Department 

reserves the right to permit parties to 

use the current version of Form ITA–

367 by including express language in 

the terms of the suspension agreements, 

should it renegotiate those terms in the 

future. 

The Department would like to take 

this opportunity to remind those who 

practice before it that the entire Form 

ITA–367 (2.08) must be submitted to the 

Department in order to gain access to 

business proprietary information under 

the APO. If any portion of the form is 

not applicable, the applicant should so 

indicate on the form itself, and submit 

the entire application form to the 

Department. Form ITA–367 is available 

on the Department’s Web site at 

http://ia.ita.doc.gov/apo/index.html and 

may be reproduced using the applicant’s 

word processor. The format of the 

application must be exactly as provided 

in the printed form, with no deviation. 

With respect to item 5 of the APO 

application, when identifying nonattorney applicants, any clarification as 

to the identity of those applicants must 

be explained in the cover letter, or as an 

attachment to the application. Such 

clarifications should not be added into 

Form ITA–367 itself. 

With respect to items 8 and 9, the 

exact format may be repeated to include 

additional applicants, as required (e.g., 

(2), (3), (4), etc.). Each applicant must 

sign and date the application in their 

own hand. 

The Department would also like to 

remind authorized applicants that an 

acknowledgment for support staff is a 

requirement under item 2 of the APO. 

Failure by a firm to maintain an 

acknowledgment for support staff for 

each segment of each proceeding when 

APO access has been granted would be 

a violation of the APO. Support staff do 

not apply separately for APO access, but 

they are required to sign the 

acknowledgment maintained by the 

firm. 

Classification 

E.O. 12866 

It has been determined that this notice 

is not significant for purposes of E.O. 

12866. 

Regulatory Flexibility Act 

The Chief Counsel for Regulation at 

the Department certified to the Chief 

Counsel for Advocacy, Small Business 

Administration that this rule, if 

promulgated, would not have a 

significant economic impact on a 

substantial number of small entities. 

The factual basis for this certification 

was published in the proposed rule and 

is not repeated here. No comments were 

received regarding the economic impact 

of this rule. As a result, no final 

regulatory flexibility analysis is required 

and none has been prepared. 

Paperwork Reduction Act 

This rule does not contain a collection 

of information for purposes of the 

Paperwork Reduction Act of 1980, as 

amended (44 U.S.C. 3501 et seq.). 

E.O. 12612 

This proposed rule does not contain 

federalism implications warranting the 

preparation of a Federalism Assessment. 

List of Subjects in 19 CFR Part 351 

Administrative practice and 

procedure, Antidumping, Business and 

industry, Cheese, Confidential business 

information, Countervailing duties, 

Freedom of information, Investigations, 

Reporting and recordkeeping 

requirements. 

Dated: January 14, 2008. 

David M. Spooner, 

Assistant Secretary for Import 

Administration. 

■ For the reasons stated, 19 CFR Ch. III 

is amended as follows: 

PART 351—ANTIDUMPING AND 

COUNTERVAILING DUTIES 

■ 1. The authority citation for part 351 

continues to read as follows: 

Authority: 5 U.S.C. 301; 19 U.S.C. 1202 

note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 et 

seq.; and 19 U.S.C. 3538. 

■ 2. Section 351.102 is revised as 

follows: 

§ 351.102 Definitions. 

(a) Introduction. The Act contains 

many technical terms applicable to 

antidumping and countervailing duty 

proceedings. In the case of terms that 

are not defined in this section or other 

sections of this part, readers should 

refer to the relevant provisions of the 

Act. This section: 

(1) Defines terms that appear in the 

Act but are not defined in the Act; 

(2) Defines terms that appear in this 

Part but do not appear in the Act; and 

(3) Elaborates on the meaning of 

certain terms that are defined in the Act. 

(b) Definitions. 

(1) Act. ‘‘Act’’ means the Tariff Act of 

1930, as amended. 

(2) Administrative review. 

‘‘Administrative review’’ means a 

review under section 751(a)(1) of the 

Act. 

(3) Affiliated persons; affiliated 

parties. ‘‘Affiliated persons’’ and 

‘‘affiliated parties’’ have the same 

meaning as in section 771(33) of the 

Act. In determining whether control 

over another person exists, within the 

meaning of section 771(33) of the Act, 

the Secretary will consider the 

following factors, among others: 

Corporate or family groupings; franchise 

or joint venture agreements; debt 

financing; and close supplier 

relationships. The Secretary will not 

find that control exists on the basis of 

these factors unless the relationship has 

the potential to impact decisions 

concerning the production, pricing, or 

cost of the subject merchandise or 

foreign like product. The Secretary will 

consider the temporal aspect of a 

relationship in determining whether 

control exists; normally, temporary 

circumstances will not suffice as 

evidence of control. 

(4) Aggregate basis. ‘‘Aggregate basis’’

means the calculation of a country-wide 

subsidy rate based principally on 

information provided by the foreign 

government. 

(5) Anniversary month. ‘‘Anniversary 

month’’ means the calendar month in 

which the anniversary of the date of 

publication of an order or suspension of 

investigation occurs. 

(6) APO. ‘‘APO’’ means an 

administrative protective order 

described in section 777(c)(1) of the Act. 

(7) Applicant. ‘‘Applicant’’ means a 

representative of an interested party that 

has applied for access to business 

proprietary information under an 

administrative protective order. 


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Federal Register / Vol. 73, No. 14 / Tuesday, January 22, 2008 / Rules and Regulations 3641 

(8) Article 4/Article 7 review. ‘‘Article 

4/Article 7 review’’ means a review 

under section 751(g)(2) of the Act. 

(9) Article 8 violation review. ‘‘Article 

8 violation review’’ means a review 

under section 751(g)(1) of the Act. 

(10) Authorized applicant. 

‘‘Authorized applicant’’ means an 

applicant that the Secretary has 

authorized to receive business 

proprietary information under an APO 

under section 777(c)(1) of the Act. 

(11) Changed circumstances review. 

‘‘Changed circumstances review’’ means 

a review under section 751(b) of the Act. 

(12) Consumed in the production 

process. Inputs ‘‘consumed in the 

production process’’ are inputs 

physically incorporated, energy, fuels 

and oil used in the production process 

and catalysts which are consumed in 

the course of their use to obtain the 

product. 

(13) Cumulative indirect tax. 

‘‘Cumulative indirect tax’’ means a 

multi-staged tax levied where there is 

no mechanism for subsequent crediting 

of the tax if the goods or services subject 

to tax at one stage of production are 

used in a succeeding stage of 

production. 

(14) Customs Service. ‘‘Customs 

Service’’ means United States Customs 

and Border Protection of the United 

States Department of Homeland 

Security. 

(15) Department. ‘‘Department’’

means the United States Department of 

Commerce. 

(16) Direct tax. ‘‘Direct tax’’ means a 

tax on wages, profits, interests, rents, 

royalties, and all other forms of income, 

a tax on the ownership of real property, 

or a social welfare charge. 

(17) Domestic interested party. 

‘‘Domestic interested party’’ means an 

interested party described in 

subparagraph (C), (D), (E), (F), or (G) of 

section 771(9) of the Act. 

(18) Expedited antidumping review. 

‘‘Expedited antidumping review’’ means 

a review under section 736(c) of the Act. 

(19) Expedited sunset review. 

‘‘Expedited sunset review’’ means an 

expedited sunset review conducted by 

the Department where respondent 

interested parties provide inadequate 

responses to a notice of initiation under 

section 751(c)(3)(B) of the Act and 

§ 351.218(e)(1)(ii). 

(20) Export insurance. ‘‘Export 

insurance’’ includes, but is not limited 

to, insurance against increases in the 

cost of exported products, nonpayment 

by the customer, inflation, or exchange 

rate risks. 

(21) Factual information. ‘‘Factual 

information’’ means: 

(i) Initial and supplemental 

questionnaire responses; 

(ii) Data or statements of fact in 

support of allegations; 

(iii) Other data or statements of facts; 

and 

(iv) Documentary evidence. 

(22) Fair value. ‘‘Fair value’’ is a term 

used during an antidumping 

investigation, and is an estimate of 

normal value. 

(23) Firm. For purposes of subpart E 

(Identification and Measurement of 

Countervailable Subsidies), ‘‘firm’’ is 

used to refer to the recipient of an 

alleged countervailable subsidy, 

including any individual, company, 

partnership, corporation, joint venture, 

association, organization, or other 

entity. 

(24) Full sunset review. ‘‘Full sunset 

review’’ means a full sunset review 

conducted by the Department under 

section 751(c)(5) of the Act where both 

domestic interested parties and 

respondent interested parties provide 

adequate response to a notice of 

initiation under section 751(c)(3)(B) of 

the Act and §§ 351.218(e)(1)(i) and 

351.218(e)(1)(ii). 

(25) Government-provided. 

‘‘Government-provided’’ is a shorthand 

expression for an act or practice that is 

alleged to be a countervailable subsidy. 

The use of the term ‘‘governmentprovided’’ is not intended to preclude 

the possibility that a government may 

provide a countervailable subsidy 

indirectly in a manner described in 

section 771(5)(B)(iii) of the Act (indirect 

financial contribution). 

(26) Import charge. ‘‘Import charge’’

means a tariff, duty, or other fiscal 

charge that is levied on imports, other 

than an indirect tax. 

(27) Importer. ‘‘Importer’’ means the 

person by whom, or for whose account, 

subject merchandise is imported. 

(28) Indirect tax. ‘‘Indirect tax’’ means 

a sales, excise, turnover, value added, 

franchise, stamp, transfer, inventory, or 

equipment tax, a border tax, or any 

other tax other than a direct tax or an 

import charge. 

(29) Interested party. For the purpose 

of submitting an application for APO 

access (Form ITA–367), ‘‘Interested 

Party’’ means: 

(i) A foreign manufacturer, producer, 

or exporter of subject merchandise, 

(ii) The United States importer of 

subject merchandise, 

(iii) A trade or business association a 

majority of the members of which are 

producers, exporters, or importers of 

subject merchandise, 

(iv) The government of a country in 

which subject merchandise is produced 

or manufactured or from which such 

merchandise is exported, 

(v) A manufacturer, producer, or 

wholesaler in the United States of a 

domestic like product, 

(vi) A certified union or recognized 

union or group of workers which is 

representative of an industry engaged in 

the manufacture, production, or 

wholesale in the United States of a 

domestic like product, 

(vii) A trade or business association a 

majority of whose members 

manufacture, produce, or wholesale a 

domestic like product in the United 

States, 

(viii) An association, a majority of 

whose members is composed of 

interested parties described in 

subparagraph (C), (D), or (E) of section 

771(9) of the Act with respect to a 

domestic like product, and 

(ix) A coalition or trade association as 

described in section 771(9)(G) of the 

Act. 

(30) Investigation. Under the Act and 

this Part, there is a distinction between 

an antidumping or countervailing duty 

investigation and a proceeding. An 

‘‘investigation’’ is that segment of a 

proceeding that begins on the date of 

publication of notice of initiation of 

investigation and ends on the date of 

publication of the earliest of: 

(i) Notice of termination of 

investigation, 

(ii) Notice of rescission of 

investigation, 

(iii) Notice of a negative 

determination that has the effect of 

terminating the proceeding, or 

(iv) An order. 

(31) Loan. ‘‘Loan’’ means a loan or 

other form of debt financing, such as a 

bond. 

(32) Long-term loan. ‘‘Long-term 

loan’’ means a loan, the terms of 

repayment for which are greater than 

one year. 

(33) New shipper review. ‘‘New 

shipper review’’ means a review under 

section 751(a)(2) of the Act. 

(34) Order. An ‘‘order’’ is an order 

issued by the Secretary under section 

303, section 706, or section 736 of the 

Act or a finding under the Antidumping 

Act, 1921. 

(35) Ordinary course of trade. 

‘‘Ordinary course of trade’’ has the same 

meaning as in section 771(15) of the 

Act. The Secretary may consider sales or 

transactions to be outside the ordinary 

course of trade if the Secretary 

determines, based on an evaluation of 

all of the circumstances particular to the 

sales in question, that such sales or 

transactions have characteristics that are 

extraordinary for the market in question. 

Examples of sales that the Secretary 


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3642 Federal Register / Vol. 73, No. 14 / Tuesday, January 22, 2008 / Rules and Regulations 

might consider as being outside the 

ordinary course of trade are sales or 

transactions involving off-quality 

merchandise or merchandise produced 

according to unusual product 

specifications, merchandise sold at 

aberrational prices or with abnormally 

high profits, merchandise sold pursuant 

to unusual terms of sale, or merchandise 

sold to an affiliated party at a non-arm’s 

length price. 

(36) Party to the proceeding. ‘‘Party to 

the proceeding’’ means any interested 

party that actively participates, through 

written submissions of factual 

information or written argument, in a 

segment of a proceeding. Participation 

in a prior segment of a proceeding will 

not confer on any interested party 

‘‘party to the proceeding’’ status in a 

subsequent segment. 

(37) Person. ‘‘Person’’ includes any 

interested party as well as any other 

individual, enterprise, or entity, as 

appropriate. 

(38) Price adjustment. ‘‘Price 

adjustment’’ means any change in the 

price charged for subject merchandise or 

the foreign like product, such as 

discounts, rebates and post-sale price 

adjustments, that are reflected in the 

purchaser’s net outlay. 

(39) Prior-stage indirect tax. ‘‘Priorstage indirect tax’’ means an indirect tax 

levied on goods or services used directly 

or indirectly in making a product. 

(40) Proceeding. A ‘‘proceeding’’

begins on the date of the filing of a 

petition under section 702(b) or section 

732(b) of the Act or the publication of 

a notice of initiation in a self-initiated 

investigation under section 702(a) or 

section 732(a) of the Act, and ends on 

the date of publication of the earliest 

notice of: 

(i) Dismissal of petition, 

(ii) Rescission of initiation, 

(iii) Termination of investigation, 

(iv) A negative determination that has 

the effect of terminating the proceeding, 

(v) Revocation of an order, or 

(vi) Termination of a suspended 

investigation. 

(41) Rates. ‘‘Rates’’ means the 

individual weighted-average dumping 

margins, the individual countervailable 

subsidy rates, the country-wide subsidy 

rate, or the all-others rate, as applicable. 

(42) Respondent interested party. 

‘‘Respondent interested party’’ means an 

interested party described in 

subparagraph (A) or (B) of section 771(9) 

of the Act. 

(43) Sale. A ‘‘sale’’ includes a contract 

to sell and a lease that is equivalent to 

a sale. 

(44) Secretary. ‘‘Secretary’’ means the 

Secretary of Commerce or a designee. 

The Secretary has delegated to the 

Assistant Secretary for Import 

Administration the authority to make 

determinations under title VII of the Act 

and this Part. 

(45) Section 753 review. ‘‘Section 753 

review’’ means a review under section 

753 of the Act. 

(46) Section 762 review. ‘‘Section 762 

review’’ means a review under section 

762 of the Act. 

(47) Segment of proceeding—(i) In 

general. An antidumping or 

countervailing duty proceeding consists 

of one or more segments. ‘‘Segment of 

a proceeding’’ or ‘‘segment of the 

proceeding’’ refers to a portion of the 

proceeding that is reviewable under 

section 516A of the Act. 

(ii) Examples. An antidumping or 

countervailing duty investigation or a 

review of an order or suspended 

investigation, or a scope inquiry under 

§ 351.225, each would constitute a 

segment of a proceeding. 

(48) Short-term loan. ‘‘Short-term 

loan’’ means a loan, the terms of 

repayment for which are one year or 

less. 

(49) Sunset review. ‘‘Sunset review’’

means a review under section 751(c) of 

the Act. 

(50) Suspension of liquidation. 

‘‘Suspension of liquidation’’ refers to a 

suspension of liquidation ordered by the 

Secretary under the authority of title VII 

of the Act, the provisions of this Part, or 

section 516a(g)(5)(C) of the Act, or by a 

court of the United States in a lawsuit 

involving action taken, or not taken, by 

the Secretary under title VII of the Act 

or the provisions of this Part. 

(51) Third country. For purposes of 

subpart D, ‘‘third country’’ means a 

country other than the exporting 

country and the United States. Under 

section 773(a) of the Act and subpart D, 

in certain circumstances the Secretary 

may determine normal value on the 

basis of sales to a third country. 

(52) URAA. ‘‘URAA’’ means the 

Uruguay Round Agreements Act. 

■ 3. Section 351.103 is revised as 

follows: 

§ 351.103 Central Records Unit and 

Administrative Protective Order and 

Dockets Unit. 

(a) Import Administration’s Central 

Records Unit maintains a Public File 

Room in Room 1117, U.S. Department of 

Commerce, Pennsylvania Avenue and 

14th Street, NW., Washington, DC 

20230. The office hours of the Public 

File Room are between 8:30 a.m. and 5 

p.m. on business days. Among other 

things, the Central Records Unit is 

responsible for maintaining an official 

and public record for each antidumping 

and countervailing duty proceeding (see 

§ 351.104), and the Subsidies Library 

(see section 775(2) and section 777(a)(1) 

of the Act). 

(b) Import Administration’s 

Administrative Protective Order and 

Dockets Unit (APO/Dockets Unit) is 

located in Room 1870, U.S. Department 

of Commerce, Pennsylvania Avenue and 

14th Street, NW., Washington, DC 

20230. The office hours of the APO/ 

Dockets Unit are between 8:30 a.m. and 

5 p.m. on business days. Among other 

things, the APO/Dockets Unit is 

responsible for receiving submissions 

from interested parties, issuing 

administrative protective orders (APOs), 

maintaining the APO service list and the 

public service list as provided for in 

paragraph (d) of this section, releasing 

business proprietary information under 

APO, and conducting APO violation 

investigations. The APO/Dockets Unit 

also is the contact point for questions 

and concerns regarding claims for 

business proprietary treatment of 

information and proper public versions 

of submissions under § 351.105 and 

§ 351.304. 

(c) Filing of documents with the 

Department. While persons are free to 

provide Department officials with 

courtesy copies of documents, no 

document will be considered as having 

been received by the Secretary unless it 

is submitted to the Import 

Administration’s APO/Dockets Unit in 

Room 1870 and is stamped with the 

date, and, where necessary, the time, of 

receipt. 

(d) Service list. The APO/Dockets Unit 

will maintain and make available a 

public service list for each segment of a 

proceeding. The service list for an 

application for a scope ruling is 

described in § 351.225(n). 

(1) With the exception of a petitioner 

filing a petition in an investigation, to 

be included on the public service list for 

a particular segment, each interested 

party must file a letter of appearance. 

The letter of appearance must identify 

the name of the interested party, how 

that party qualifies as an interested 

party, and the name of the firm, if any, 

representing the interested party in this 

segment of the proceeding. The letter of 

appearance may be filed as a cover letter 

to an application for APO access. If the 

representative of the party is not 

requesting access to business 

proprietary information under APO, the 

letter of appearance must be filed 

separately from any other document 

filed with the Department. If the 

interested party is a coalition or 

association as defined in subparagraph 

(A), (E), (F) or (G) of section 771(9) of 

the Act, the letter of appearance must 


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identify all of the members of the 

coalition or association. 

(2) Each interested party that asks to 

be included on the public service list for 

a segment of a proceeding must 

designate a person to receive service of 

documents filed in that segment. 

■ 4. Add paragraph (d)(4) of § 351.204 to 

read as follows: 

§ 351.204 Time periods and persons 

examined; voluntary respondents; 

exclusions. 

* * * * * 

(d) * * * 

(4) Requests for voluntary respondent 

treatment. An interested party seeking 

treatment as a voluntary respondent 

must so indicate by including as a title 

on the first page of the first submission, 

‘‘Request for Voluntary Respondent 

Treatment.’’

* * * * * 

■ 5. Revise paragraph (b) of § 351.303 to 

read as follows: 

§ 351.303 Filing, format, translation, 

service, and certification of documents. 

* * * * * 

(b) Where to file; time of filing. 

Persons must address and submit all 

documents to the Secretary of 

Commerce, Attention: Import 

Administration, APO/Dockets Unit, 

Room 1870, U.S. Department of 

Commerce, 14th Street and Constitution 

Avenue, NW., Washington, DC 20230, 

between the hours of 8:30 a.m. and 5 

p.m. on business days (see § 351.103(b)). 

If the applicable time limit expires on a 

non-business day, the Secretary will 

accept documents that are filed on the 

next business day. 

* * * * * 

■ 6. Section 351.305 is amended by 

revising paragraph (a) introductory text, 

paragraphs (b)(2) through (b)(4), and 

adding a new paragraph (d) to read as 

follows: 

§ 351.305 Access to business proprietary 

information. 

(a) The administrative protective 

order. The Secretary will place an 

administrative protective order on the 

record within two business days after 

the day on which a petition is filed or 

an investigation is self-initiated, within 

five business days after the day on 

which a request for a new shipper 

review is properly filed in accordance 

with § 351.214 and § 351.303 or an 

application for a scope ruling is 

properly filed in accordance with 

§ 351.225 and § 351.303, within five 

business days after the day on which a 

request for a changed circumstances 

review is properly filed in accordance 

with § 351.216 and § 351.303 or a 

changed circumstances review is selfinitiated, or five business days after 

initiating any other segment of a 

proceeding. The administrative 

protective order will require the 

authorized applicant to: 

* * * * * 

(b) * * * 

(2) A representative of a party to the 

proceeding may apply for access to 

business proprietary information under 

the administrative protective order by 

submitting the current version of Form 

ITA–367 to the Secretary. 

Form ITA–367 must identify the 

applicant and the segment of the 

proceeding involved, state the basis for 

eligibility of the applicant for access to 

business proprietary information, and 

state the agreement of the applicant to 

be bound by the administrative 

protective order. Form ITA–367 may be 

prepared on the applicant’s own 

wordprocessing system, and must be 

accompanied by a certification that the 

application is consistent with Form 

ITA–367 and an acknowledgment that 

any discrepancies will be interpreted in 

a manner consistent with Form ITA–

367. An applicant must apply to receive 

all business proprietary information on 

the record of the segment of a 

proceeding in question, but may waive 

service of business proprietary 

information it does not wish to receive 

from other parties to the proceeding. An 

applicant must serve an APO 

application on the other parties in the 

same manner and at the same time as it 

serves the application on the 

Department. 

(3) With respect to proprietary 

information submitted to the Secretary 

on or before the date on which the 

Secretary grants access to a qualified 

applicant, except as provided in 

paragraph (b)(4) of this section, within 

two business days the submitting party 

shall serve the party which has been 

granted access, in accordance with 

paragraph (c) of this section. 

(4) To minimize the disruption caused 

by late applications, an application 

should be filed before the first 

questionnaire response has been 

submitted. Where justified, however, 

applications may be filed up to the date 

on which the case briefs are due, but 

any applicant filing after the first 

questionnaire response is submitted will 

be liable for costs associated with the 

additional production and service of 

business proprietary information 

already on the record. Parties have five 

business days to serve their business 

proprietary information already on the 

record to a party who has filed an 

application after the submission of the 

first questionnaire response and is 

authorized to receive such information 

after such information has been placed 

on the record. 

* * * * * 

(d) Additional filing requirements for 

importers. If an applicant represents a 

party claiming to be an interested party 

by virtue of being an importer, then the 

applicant shall submit, along with the 

Form ITA–367, documentary evidence 

demonstrating that during the 

applicable period of investigation or 

period of review the party imported 

subject merchandise. For a scope 

inquiry, the applicant must present 

documentary evidence that it imported 

subject merchandise, or that it has taken 

steps towards importing the 

merchandise subject to the scope 

inquiry. 

Note: The following appendix will not 

appear in the Code of Federal Regulations: 

Application for Administrative Protective 

Order in Antidumping or Countervailing 

Duty Proceeding. 

Appendix—Application for 

Administrative Protective Order in 

Antidumping or Countervailing Duty 

Proceeding 

BILLING CODE 3510–05–P 


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