[Federal Register Volume 73, Number 14 (Tuesday, January 22, 2008)]
[Rules and Regulations]
[Pages 3634-3648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-172]
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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.
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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
[[Page 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
[[Page 3636]]
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
[[Page 3637]]
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.
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\1\ Under 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.
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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 self-initiation 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 two-day 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
[[Page 3638]]
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.
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\2\ Some 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).
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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
[[Page 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-
[[Page 3640]]
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 non-attorney 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.
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For the reasons stated, 19 CFR Ch. III is amended as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
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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.
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2. Section 351.102 is revised as follows:
Sec. 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.
[[Page 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 Sec.
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 Sec. Sec. 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 ``government-provided'' 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
[[Page 3642]]
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. ``Prior-stage 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 Sec. 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.
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3. Section 351.103 is revised as follows:
Sec. 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 Sec. 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 Sec. 351.105 and Sec. 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
Sec. 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
[[Page 3643]]
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.
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4. Add paragraph (d)(4) of Sec. 351.204 to read as follows:
Sec. 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.''
* * * * *
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5. Revise paragraph (b) of Sec. 351.303 to read as follows:
Sec. 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
Sec. 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.
* * * * *
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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:
Sec. 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
Sec. 351.214 and Sec. 351.303 or an application for a scope ruling is
properly filed in accordance with Sec. 351.225 and Sec. 351.303,
within five business days after the day on which a request for a
changed circumstances review is properly filed in accordance with Sec.
351.216 and Sec. 351.303 or a changed circumstances review is self-
initiated, 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
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