[Title 19 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2009 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          19


          Part 200 to End

                         Revised as of April 1, 2009


          Customs Duties
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2009
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 19:
          Chapter II--United States International Trade 
          Commission                                                 3
          Chapter III--International Trade Administration, 
          Department of Commerce                                   197
          Chapter IV--Bureau of Immigration and Customs 
          Enforcement, Department of Homeland Security 
          [Reserved]
  Finding Aids:
      Table of CFR Titles and Chapters........................     351
      Alphabetical List of Agencies Appearing in the CFR......     371
      List of CFR Sections Affected...........................     381

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  19 CFR 200.735-101 
                       refers to title 19, part 
                       200, section 735-101.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
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parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
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LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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[[Page vi]]

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[[Page vii]]



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    Office of the Federal Register.
    April 1, 2009.







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                               THIS TITLE

    Title 19--Customs Duties is composed of three volumes. The first two 
volumes, parts 0 to 140 and parts 141 to 199 contain the regulations in 
Chapter I--Bureau of Customs and Border Protection, Department of 
Homeland Security; Department of the Treasury. The third volume, part 
200 to end, contains the regulations in Chapter II--United States 
International Trade Commission; Chapter III--International Trade 
Administration, Department of Commerce; and Chapter IV--Bureau of 
Immigration and Customs Enforcement, Department of Homeland Security. 
The contents of these volumes represent all current regulations issued 
under this title of the CFR as of April 1, 2009.

    A Subject Index to Chapter I--Bureau of Customs and Border 
Protection, Department of Homeland Security; Department of the Treasury 
appears in the Finding Aids section of the first two volumes.

    For this volume, Robert J. Sheehan, III was Chief Editor. The Code 
of Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


[[Page 1]]



                        TITLE 19--CUSTOMS DUTIES




                  (This book contains part 200 to End)

  --------------------------------------------------------------------
                                                                    Part

chapter ii--United States International Trade Commission....         200

chapter iii--International Trade Administration, Department 
  of Commerce...............................................         351
chapter iv--Bureau of Immigration and Customs Enforcement, Department of 
  Homeland Security [Reserved]

[[Page 3]]



        CHAPTER II--UNITED STATES INTERNATIONAL TRADE COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
200             Employee responsibilities and conduct.......           5
                          SUBCHAPTER A--GENERAL
201             Rules of general application................          16
              SUBCHAPTER B--NONADJUDICATIVE INVESTIGATIONS
202             Investigations of costs of production.......          67
204             Investigations of effects of imports on 
                    agricultural programs...................          68
205             Investigations to determine the probable 
                    economic effect on the economy of the 
                    United States of proposed modifications 
                    of duties or of any barrier to (or other 
                    distortion of) international trade or of 
                    taking retaliatory actions to obtain the 
                    elimination of unjustifiable or 
                    unreasonable foreign acts or policies 
                    which restrict U.S. commerce............          69
206             Investigations relating to global and 
                    bilateral safeguard actions, market 
                    disruption, trade diversion, and review 
                    of relief actions.......................          71
207             Investigations of whether injury to domestic 
                    industries results from imports sold at 
                    less than fair value or from subsidized 
                    exports to the United States............          94
208             Investigations with respect to commercial 
                    availability of textile fabric and yarn 
                    in Sub-Saharan African countries........         127
    SUBCHAPTER C--INVESTIGATIONS OF UNFAIR PRACTICES IN IMPORT TRADE
210             Adjudication and enforcement................         132
212             Implementation of the Equal Access to 
                    Justice Act.............................         188
213             Trade remedy assistance.....................         193

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PART 200_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




                      Subpart A_General Provisions

Sec.
200.735-101 Purpose.
200.735-102 Definitions.
200.735-103 Counseling service.
200.735-104 Disciplinary and other remedial action.

      Subpart B_Provisions Governing Ethical and Other Conduct and 
                      Responsibilities of Employees

200.735-104a Proscribed actions.
200.735-105 Gifts, entertainment, and favors.
200.735-106 Outside employment and other activities.
200.735-107 Financial interests.
200.735-108 Use of Government property.
200.735-109 Misuse of information.
200.735-110 Indebtedness.
200.735-111 Gambling, betting, and lotteries.
200.735-112 General conduct prejudicial to the Government.
200.735-113 Miscellaneous statutory provisions.

 Subpart C_Provisions Governing Statements of Employment and Financial 
                                Interests

200.735-114 Employees required to submit statements.
200.735-114a Employees not required to submit statements.
200.735-114b Employee complaints on filing requirements.
200.735-114c Voluntary submission by employees.
200.735-115 Forms--Interests not to be reported.
200.735-116 Time and place for submission of employees' statements.
200.735-117 Supplementary statements.
200.735-118 Interests of employees' relatives.
200.735-119 Information not known by employees.
200.735-120 Information prohibited.
200.735-121 Confidentiality of employees' statements.
200.735-122 Special Government employees.
200.735-123 Effect of employees' and special Government employees' 
          statements on other requirements.

 Subpart D_Provisions for Administrative Enforcement of Postemployment 
                    Conflict of Interest Restrictions

200.735-124 General.
200.735-125 Exemption from restrictions.
200.735-126 Administrative enforcement proceedings.

    Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965 Supp.; 5 CFR 735.101 
et seq., 5 CFR 2638.101 et seq., unless otherwise noted.

    Source: 31 FR 2593, Feb. 10, 1966, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 200.735-101  Purpose.

    The purpose of the regulations in this part is to maintain the 
highest standards of honesty, integrity, impartiality, and conduct on 
the part of all employees of the U.S. International Trade Commission and 
to maintain public confidence that the business of the Commission is 
being conducted in accordance with such standards.

[31 FR 2593, Feb. 10, 1966, as amended at 46 FR 17542, Mar. 19, 1981]



Sec. 200.735-102  Definitions.

    In this part:
    (a) Commission means the U.S. International Trade Commission.
    (b) Commissioner means a Commissioner of the U.S. International 
Trade Commission.
    (c) Employee means a Commissioner, employee, or special Government 
employee of the Commission.
    (d) Executive order means Executive Order 11222 of May 8, 1965.
    (e) Person means an individual, a corporation, a company, an 
association, a firm, a partnership, a society, a joint stock company, or 
any other organization or institution.
    (f) Special Government employee means a ``special Government 
employee'' as defined in section 202 of Title 18 of the United States 
Code who is employed by the Commission.

[31 FR 2593, Feb. 10, 1966, as amended at 44 FR 23823, Apr. 23, 1979; 46 
FR 17542, Mar. 19, 1981; 56 FR 36726, Aug. 1, 1991]



Sec. 200.735-103  Counseling service.

    (a) The Chairman shall appoint a Designated Agency Ethics Official 
(DAEO) who serves as liaison to the Office of Government Ethics and who 
is responsible for carrying out the Commission's ethics program. The 
program shall be designed to implement titles II, IV, and V of the 
Ethics in Government Act of 1978, Executive Order No. 11222, the 
regulations in this part, and

[[Page 6]]

other statutes and regulations applicable to agency ethics matters. The 
DAEO will be a senior Commission employee with experience demonstrating 
the ability to review financial disclosure reports and counsel employees 
with regard to resolving conflicts of interest, review the financial 
disclosures of Presidential nominees to the Commission prior to 
confirmation hearings, counsel employees with regard to ethics 
standards, assist supervisors in implementing the Commission's ethics 
program, and periodically evaluate the ethics program.
    (b) The Chairman shall select an Alternate Agency Ethics Official 
who will serve as Deputy DAEO to whom any of the DAEO's statutory and 
regulatory duties may be delegated.
    (c) The DAEO shall coordinate and manage the agency's ethics 
program. The DAEO duties shall consist of:
    (1) Liaison with the Office of Government Ethics;
    (2) Review of financial disclosure reports, including reports filed 
by Presidential nominees to the Commission;
    (3) Initiation and maintenance of ethics education and training 
programs;
    (4) Monitoring administrative actions and sanctions; and
    (5) Implementation of the specific program elements listed in Office 
of Government Ethics regulations, 5 CFR 738.203(b).

[46 FR 17542, Mar. 19, 1981, as amended at 56 FR 36726, Aug. 1, 1991]



Sec. 200.735-104  Disciplinary and other remedial action.

    (a) An employee who violates any of the regulations in this part may 
be disciplined. The disciplinary action may be in addition to any other 
penalty prescribed by law for the violation. In addition to, or in lieu 
of, disciplinary action, remedial action to end conflicts or appearance 
of conflicts of interest may include, but is not limited to:
    (1) Changes in assigned duties;
    (2) Divestment by the employee of his conflicting interest; or
    (3) Disqualification for a particular assignment.
    (b) Remedial action, whether disciplinary or otherwise, shall be 
effected in accordance with any applicable laws, Executive orders, and 
regulations.



      Subpart B_Provisions Governing Ethical and Other Conduct and 
                      Responsibilities of Employees



Sec. 200.735-104a  Proscribed actions.

    An employee shall avoid any action, whether or not specifically 
prohibited by this subpart, which might result in, or create the 
appearance of:
    (a) Using public office for private gain;
    (b) Giving preferential treatment to any person;
    (c) Impeding Government efficiency or economy;
    (d) Losing complete independence or impartiality;
    (e) Making a Government decision outside official channels; or
    (f) Affecting adversely the confidence of the public in the 
integrity of the Government.

[32 FR 16210, Nov. 28, 1967]



Sec. 200.735-105  Gifts, entertainment, and favors.

    (a) Except as provided in paragraph (b) of this section, no employee 
may solicit or accept, directly or indirectly, any gift, gratuity, 
favor, entertainment, loan, or any other thing of monetary value from 
any person who:
    (1) Has, or is seeking to obtain, contractual or other business or 
financial relations with the Commission;
    (2) Conducts operations or activities that are being investigated by 
the Commission; or
    (3) Has interests that may be substantially affected by the 
performance or nonperformance of the employee's official duty.
    (b) The prohibitions set forth under paragraph (a) of this section 
shall not apply to:
    (1) Solicitations or acceptances based on obvious family or personal 
relationships (such as those between parents, children, or spouse of the 
employee and the employee) when the circumstances make it clear that it 
is those relationships rather than the business of the persons concerned 
which are the motivating factors;
    (2) The acceptance of food and refreshments of nominal value on 
infrequent occasions in the ordinary course

[[Page 7]]

of a luncheon or dinner meeting or other meeting or on a field trip, and 
of ground transportation of nominal value in the course of a field trip, 
where an employee may properly be in attendance.
    (3) The acceptance of loans from banks or other financial 
institutions on customary terms to finance proper and usual activities 
of employees, such as home mortgage loans; and
    (4) The acceptance of unsolicited advertising or promotional 
material, such as pens, pencils, note pads, calendars, and other items 
of nominal value.
    (c) An employee shall not solicit a contribution from another 
employee for a gift to an official superior, make a donation as a gift 
to an official superior, or accept a gift from an employee receiving 
less pay than himself (5 U.S.C. 7351). However, this paragraph does not 
prohibit a voluntary gift of nominal value or donation in a nominal 
amount made on a special occasion such as marriage, illness, or 
retirement.
    (d) An employee shall not accept a gift, present, decoration, or 
other thing from a foreign government unless authorized by Congress as 
provided by the Constitution and in 5 U.S.C. 7342.
    (e) Neither this section nor Sec. 200.735-106 precludes an employee 
from receipt of bona fide reimbursement, unless prohibited by law, for 
expenses of travel and such other necessary subsistence as is compatible 
with this part for which no Government payment or reimbursement is made. 
However, this paragraph does not allow an employee to be reimbursed, or 
payment to be made on his behalf, for excessive personal living 
expenses, gifts, entertainment or other personal benefits, nor does it 
allow an employee to be reimbursed by a person for travel on official 
business under agency orders when reimbursement is proscribed by 
Decision B-128527 of the Comptroller General dated March 7, 1967.

[32 FR 16210, Nov. 28, 1967, as amended at 46 FR 41036, Aug. 14, 1981]



Sec. 200.735-106  Outside employment and other activities.

    (a) An employee may engage in outside employment or other outside 
activity not incompatible with the full and proper discharge of the 
duties and responsibilities of his Government employment: Provided, That 
no Commissioner shall actively engage in any other business, vocation, 
or employment than that of serving as a Commissioner (19 U.S.C. 
1330(c)). Incompatible activities include but are not limited to:
    (1) Acceptance of a fee, compensation, gift, payment of expense, or 
any other thing of monetary value in circumstances in which acceptance 
may result in, or create the appearance of, conflicts of interest; or
    (2) Outside employment tending to impair the employee's capacity to 
perform his Government duties and responsibilities in an acceptable 
manner.
    (b) An employee (except a special Government employee) shall not 
receive any salary or anything of monetary value from a private source 
as compensation for his services to the Government (18 U.S.C. 209).
    (c) Employees are encouraged to engage in teaching, lecturing, and 
writing that is not prohibited by law, the Executive order, or this 
part. However, an employee shall not, either for or without 
compensation, engage in teaching, lecturing, or writing, including 
teaching, lecturing, or writing for the purpose of the special 
preparation of a person or class of persons for an examination of the 
Civil Service Commission or Board of Examiners for the Foreign Service, 
that is dependent on information obtained as a result of his Government 
employment, except when that information has been made available to the 
general public or will be made available on request, or when the 
Commission gives authorization for the use of nonpublic information 
(other than information received in confidence) on the basis that the 
use is in the public interest and would not be in violation of law. In 
addition, Commissioners shall not receive compensation or anything of 
monetary value for any consultation, lecture, discussion, writing, or 
appearance the subject matter of which is devoted substantially to the 
responsibilities, programs, or operations of the Commission, or which 
draws substantially on official data or

[[Page 8]]

ideas which have not become part of the body of public information.
    (d) This section does not preclude an employee from:
    (1) Participation in the activities of national or State political 
parties not proscribed by law.
    (2) Participation in the affairs of, or acceptance of, an award for 
a meritorious public contribution or achievement given by a charitable, 
religious, professional, social, fraternal, nonprofit educational and 
recreational, public service, or civic organization.

[33 FR 8447, June 7, 1968]



Sec. 200.735-107  Financial interests.

    (a) An employee shall not:
    (1) Have a direct or indirect financial interest that conflicts 
substantially, or appears to conflict substantially, with his Government 
duties or responsibilities; or
    (2) Engage in, directly or indirectly, a financial transaction as a 
result of, or primarily relying on, information obtained through his 
Government employment.
    (b) This section does not preclude an employee from having a 
financial interest or engaging in financial transactions to the same 
extent as a private citizen not employed by the Government so long as it 
is not prohibited by law, the Executive order, or this part.
    (c) Pursuant to the authority contained in 18 U.S.C. 208(b), the 
following types of financial interests are considered too remote or 
inconsequential to affect a Commission employee's integrity or services 
and do not constitute a conflict of interest under 18 U.S.C. 208(a):
    (1) In widely-held, diversified mutual funds or regulated investment 
companies, regardless of their value; and
    (2) In state or local government bonds, or other noncorporate bonds, 
regardless of their value.

[31 FR 2593, Feb. 10, 1966, as amended at 44 FR 23823, Apr. 23, 1979]



Sec. 200.735-108  Use of Government property.

    An employee shall not directly or indirectly use, or allow the use 
of, Government property of any kind, including property leased to the 
Government, for other than officially approved activities. An employee 
has a positive duty to protect and conserve Government property, 
including equipment, supplies, and other property issued to him.



Sec. 200.735-109  Misuse of information.

    For the purpose of furthering a private interest, an employee shall 
not, except as provided in Sec. 200.735-106(c), directly or indirectly 
use, or allow the use of, official information obtained through or in 
connection with his Government employment which has not been made 
available to the general public.



Sec. 200.735-110  Indebtedness.

    An employee shall pay each just financial obligation in a proper and 
timely manner, especially one imposed by law such as Federal, State or 
local taxes. For the purpose of this section a just financial obligation 
means one acknowledged by the employee or reduced to judgment by a 
court, and in a proper and timely manner means in a manner which the 
Commission determines does not, under the circumstances, reflect 
adversely on the Government as his employer. In the event of a dispute 
between an employee and an alleged creditor, the Commission shall make 
no determination of the validity or amount of the disputed debt.



Sec. 200.735-111  Gambling, betting, and lotteries.

    An employee shall not participate, while on Government-owned or 
leased property or while on duty for the Government, in any gambling 
activity including the operation of a gambling device, in conducting a 
lottery or pool, in a game for money or property, or in selling or 
purchasing a numbers slip or ticket. However, this section does not 
preclude activities:
    (a) Necessitated by an employee's law enforcement duties; or
    (b) Under section 3 of Executive Order 10927 and similar Commission-
approved activities.

[[Page 9]]



Sec. 200.735-112  General conduct prejudicial to the Government.

    An employee shall not engage in criminal, infamous, dishonest, 
immoral, or notoriously disgraceful conduct, or other conduct 
prejudicial to the Government.



Sec. 200.735-113  Miscellaneous statutory provisions.

    Each employee shall familiarize himself with each statute that 
relates to his ethical and other conduct as a Government employee, 
including the following statutes:
    (a) House Concurrent Resolution 175, 85th Congress, 2d Session, 72 
Stat. B12, the ``Code of Ethics for Government Service.''
    (b) Chapter 11 of Title 18, United States Code, relating to bribery, 
graft, and conflicts of interest.
    (c) The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913).
    (d) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 
18 U.S.C. 1918).
    (e) The prohibition against the employment of a member of a 
Communist organization (50 U.S.C. 784).
    (f) The prohibitions against (1) the disclosure of classified 
information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of 
confidential information (18 U.S.C. 1905).
    (g) The provision relating to the habitual use of intoxicants to 
excess (5 U.S.C. 7352).
    (h) The prohibition against the misuse of a Government vehicle (31 
U.S.C. 638a(c)).
    (i) The prohibition against the misuse of the franking privilege (18 
U.S.C. 1719).
    (j) The prohibition against the use of deceit in an examination or 
personnel action in connection with Government employment (18 U.S.C. 
1917).
    (k) The prohibition against fraud or false statements in a 
Government matter (18 U.S.C. 1001).
    (l) The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071).
    (m) The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508).
    (n) The prohibitions against (1) embezzlement of Government money or 
property (18 U.S.C. 641); (2) failing to account for public money (18 
U.S.C. 643); and (3) embezzlement of the money or property of another 
person in the possession of an employee by reason of his employment (18 
U.S.C. 654).
    (o) The prohibition against unauthorized use of documents relating 
to claims from or by the Government (18 U.S.C. 285).
    (p) The prohibitions against political activities in subchapter III 
of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603, 
607, and 608.
    (q) The prohibition against an employee acting as an agent of a 
foreign principal registered under the Foreign Agents Registration Act 
(18 U.S.C. 219).

[31 FR 2593, Feb. 10, 1966, as amended at 32 FR 16210, Nov. 28, 1967]



 Subpart C_Provisions Governing Statements of Employment and Financial 
                                Interests



Sec. 200.735-114  Employees required to submit statements.

    Except as provided in Sec. 200.735-114a, the following employees 
shall submit confidential statements of employment and financial 
interests:
    (a)(1) Employees in grade GS-13 or above under section 5332 of title 
5, United States Code, or in comparable or higher positions not subject 
to that section, other than those employees who are required to file 
public financial disclosure reports by title II of the Ethics in 
Government Act of 1978.
    (2) The Director of Personnel shall list all such positions, shall 
include the listing in the chapter of the Commission's Policy Manual 
pertaining to the filing of confidential statements of employment and 
financial interests, and shall furnish copies thereof to the Deputy DAEO 
and to affected employees.
    (3) The Director of Personnel shall update the listing required by 
paragraph (a)(2) of this section and shall take all other steps required 
by paragraph (a)(2) as of January 1 and July 1 of each year.
    (b)(1) Employees classified below GS-13 under section 5332 of title 
5, United States Code, or at a comparable pay

[[Page 10]]

level under other authority, other than those employees who are required 
to file public financial disclosure reports by title II of the Ethics in 
Government Act of 1978, who are: (i) Responsible for making a decision 
or taking an action in regard to Commission contracting or procurement, 
(ii) responsible for conducting investigative and research activities 
where the decision to be made or action to be taken could have an 
economic impact on any non-Federal enterprise, or (iii) responsible for 
exercising the authority of any supervisory or investigative employee in 
the absence of such employee.
    (2) The Director of Personnel, upon obtaining the advice of the 
General Counsel, shall be responsible for determining which positions 
below GS-13 meet the criteria of paragraph (b)(1) of this section. The 
Director of Personnel shall justify his or her determination in writing 
and shall submit it to the Office of Personnel Management for its 
approval. Upon obtaining the approval of the Office of Personnel 
Management, the Director of Personnel shall include the listing of these 
positions in the chapter of the Commission's Policy Manual pertaining to 
the filing of confidential statements of employment and financial 
interests and shall furnish copies thereof to the Deputy DAEO and to 
affected employees.
    (3) The Director of Personnel shall evaluate the determination under 
paragraph (b)(2) of this section as of January 1 and July 1 of each 
year. When organizational changes or personnel actions indicate that 
positions should be either added to or taken from the list of positions 
which the Director of Personnel has determined meet the criteria of 
paragraph (b)(1) of this section, the Director of Personnel shall make a 
new determination under paragraph (b)(2) of this section and shall take 
all other steps required by paragraph (b)(2) immediately upon the 
implementation of said organizational changes or personnel actions.

[46 FR 17543, Mar. 19, 1981, as amended at 56 FR 36726, Aug. 1, 1991]



Sec. 200.735-114a  Employees not required to submit statements.

    (a) Employees in positions that meet the criteria in paragraphs 
(b)(1) or (c)(1) of Sec. 200.735-114 of this subpart may be exempted 
from the reporting requirement of Sec. 200.735-114 if the Director of 
Personnel, upon obtaining the advice of the General Counsel, determines 
that:
    (1) The duties of a position are such that the likelihood of the 
incumbent's involvement in a conflict-of-interest situation is remote;
    (2) The duties of a position are at such a level of responsibility 
that the submission of a statement of employment and financial interests 
is not necessary because of the degree of supervision and review over 
the incumbent or the inconsequential effect on the integrity of the 
Government.
    (b) All determinations made pursuant to paragraph (a) shall be 
documented in a writing which shall be annexed to the listings required 
by paragraphs (b)(2) and (c)(2) of Sec. 200.735-114 of this subpart. 
The factual bases and reasons for determinations under paragraphs (a)(1) 
and (a)(2) of this section shall be specified by the Director of 
Personnel in said writing. Said writing shall refer to the position only 
and shall not include the name, or other identifying particular, of the 
incumbent occupying the position.
    (c) A statement of employment and financial interests from 
commissioners is not required by this subpart. Such employees are 
subject to separate reporting requirements under section 401 of 
Executive Order 11222 (3 CFR 306 (1964-1965 Comp.)).

[42 FR 59958, Nov. 23, 1977]



Sec. 200.735-114b  Employee complaints on filing requirements.

    Any employee who believes that his position has been improperly 
included under the reporting requirements of Sec. 200.735-114 may 
obtain a review thereof through the Commission's grievance procedures.

[42 FR 59958, Nov. 23, 1977]



Sec. 200.735-114c  Voluntary submission by employees.

    Any employee not required to submit a statement of employment and 
financial interests under the criteria established by Sec. 200.735-114 
may submit such a statement to the Deputy Counselor

[[Page 11]]

in the manner specified in Sec. 200.735-116 if he or she so desires.

[42 FR 59958, Nov. 23, 1977]



Sec. 200.735-115  Forms--Interests not to be reported.

    (a) Statements required to be submitted by the provisions of this 
subpart shall be prepared on forms (the format of which is prescribed by 
the Office of Government Ethics, Office of Personnel Management) 
available from the Deputy DAEO.
    (b) Employees, GS-15 and below, who are required to file a statement 
of employment and financial interests under Sec. 200.735-114 of this 
part, need not report to the Deputy DAEO those financial interests 
specified in Sec. Sec. 200.735-107(c) (1) and (2) of this part. 
Commissioners and Commission employees, GS-16 and above, are required to 
report the financial interests specified in Sec. Sec. 200.735-107(c) 
(1) and (2) of this part under section 202(a) of the Ethics in 
Government Act of 1978.

[44 FR 23823, Apr. 23, 1979, as amended at 56 FR 36726, Aug. 1, 1991]



Sec. 200.735-116  Time and place for submission of employees' statements.

    (a) An employee required to submit such a statement shall submit it 
not later than:
    (1) Ninety days after the effective date of the regulations in this 
part, if employed on or before that effective date; or
    (2) Thirty days after his entrance on duty, but not earlier than 
ninety days after the effective date, if appointed after the effective 
date.
    (b) Each such statement shall be submitted to the Office of the 
General Counsel of the Commission and shall be marked ``Submitted in 
Confidence to the Deputy DAEO.'': Provided, That the statement of the 
Deputy DAEO shall be submitted directly to the DAEO.

[31 FR 2593, Feb. 10, 1966, as amended at 56 FR 36726, Aug. 1, 1991]



Sec. 200.735-117  Supplementary statements.

    Changes in, or additions to, the information contained in an 
employee's statement of employment and financial interests shall be 
reported in a supplementary statement as of June 30 each year. If no 
changes or additions occur, a negative report is required. 
Notwithstanding the filing of the annual report under this section, each 
employee shall at all times avoid acquiring a financial interest that 
could result, or taking an action that would result, in a violation of 
the conflicts of interest provisions of section 208 of title 18, United 
States Code, or the regulations in this part.

[32 FR 16211, Nov. 28, 1967]



Sec. 200.735-118  Interests of employees' relatives.

    The interest of a spouse, minor child or other member of an 
employee's immediate household is considered to be an interest of the 
employee. For the purpose of this section, member of an employee's 
immediate household means those blood relations who are residents of the 
employee's household.



Sec. 200.735-119  Information not known by employees.

    If any information required to be included in a statement of 
employment and financial interests or supplementary statement, including 
holdings placed in trust, is not known to the employee but is known to 
another person, the employee shall request that other person to submit 
information on his behalf.



Sec. 200.735-120  Information prohibited.

    An employee is not required to submit in a statement of employment 
and financial interests or supplementary statement any information 
relating to the employee's connection with, or interest in, a 
professional society or a charitable, religious, social, fraternal, 
recreational, public service, civic, or political organization or 
similar organization not conducted as a business enterprise. For the 
purpose of this section, educational and other institutions doing 
research and development or related work involving grants of money from, 
or contracts with, the Government are deemed business enterprises and 
are required to be included in an employee's statement of employment and 
financial interests.

[[Page 12]]



Sec. 200.735-121  Confidentiality of employees' statements.

    Each statement of employment and financial interests, and each 
supplementary statement, shall be held in confidence. To ensure this 
confidentiality, the Deputy DAEO is authorized to review and retain the 
statements. He shall be responsible for maintaining the statements in 
confidence and shall not allow access to, or allow information to be 
disclosed from, a statement except to carry out the purpose of this 
part. The Deputy DAEO may not disclose information from the statement 
except as the Civil Service Commission or the Chairman of the Tariff 
Commission may determine for good cause shown.

[32 FR 16211, Nov. 28, 1967, as amended at 56 FR 36726, Aug. 1, 1991]



Sec. 200.735-122  Special Government employees.

    (a) Except as provided in paragraph (b) of this section, each 
special Government employee shall submit a statement of employment and 
financial interests which reports:
    (1) All of his employment; and
    (2) The financial interests of the special Government employee which 
the Commission determines are relevant in the light of the duties he is 
to perform.
    (b) The Commission may waive the requirement in paragraph (a) of 
this section for the submission of a statement of employment and 
financial interests in the case of a special Government employee who is 
not a consultant or an expert when the Commission finds that the duties 
of the position held by that special Government employee are of a nature 
and at such a level of responsibility that the submission of the 
statement by the incumbent is not necessary to protect the integrity of 
the Government. For the purpose of this paragraph, consultant and expert 
have the meanings given those terms by Chapter 304 of the Federal 
Personnel Manual.
    (c) A statement of employment and financial interests required to be 
submitted under this section shall be submitted as provided for 
employees in Sec. 200.735-116. Each special Government employee shall 
keep his statement current throughout his employment with the Commission 
by the submission of supplementary statements.

[31 FR 2593, Feb. 10, 1966, as amended at 32 FR 16211, Nov. 28, 1967]



Sec. 200.735-123  Effect of employees' and special Government employees' 

statements on other requirements.

    The statements of employment and financial interests and 
supplementary statements required of employees and special Government 
employees are in addition to, and not in substitution for, or in 
derogation of, any similar requirement imposed by law, order, or 
regulation. The submission of a statement or supplementary statement by 
an employee or special Government employee does not permit him or any 
other person to participate in a matter which his or the other person's 
participation in is prohibited by law, order, or regulation.



 Subpart D_Provisions for Administrative Enforcement of Postemployment 
                    Conflict of Interest Restrictions

    Authority: Ethics in Government Act of 1978, Pub. L. 95-521, 92 
Stat. 1864 (18 U.S.C. 207), as amended by Pub. L. 96-28, 93 Stat. 76 
(1979); 45 FR 7402, (1979) (5 CFR part 737).

    Source: 45 FR 31988, May 15, 1980, unless otherwise noted.



Sec. 200.735-124  General.

    The procedures in this subpart are established pursuant to 
subsection 207(j) of title 18, United States Code, for the 
administrative enforcement of the restrictions on postemployment 
activities in Title V of the Ethics in Government Act of 1978 (18 U.S.C. 
207 (a), (b), and (c)) and implementing regulations published by the 
Office of Government Ethics (5 CFR part 737). Subsections 207 (a), (b), 
and (c) of Title 18, United States Code, prohibit certain forms of 
representational activity or communications by former Commission 
employees.

[[Page 13]]



Sec. 200.735-125  Exemption from restrictions.

    (a) Scientific and technological information solicited by the 
Commission. Communications of a former Commission employee solely for 
the purpose of furnishing scientific or technological information 
solicited by the Commission in the course of its statutory 
investigations are exempted from the restrictions on postemployment 
practices.
    (b) Exemption for persons with special qualifications in a technical 
discipline--(1) Applicability. A former Commission employee may be 
exempted from the restrictions on postemployment practices if the 
Chairman, in consultation with the Director, Office of Government Ethics 
(the Director), executes a certification published in the Federal 
Register that the former Commission employee has outstanding 
qualifications in a scientific, technological, or other technical 
discipline; that the former Commission employee is acting with respect 
to a particular matter which requires such qualifications; and that the 
national interest would be served by the former Commission employee's 
participation.
    (2) Certification authority. Certification shall be by the Chairman, 
or in the absence thereof, by the acting head of the Commission. 
Consultation with the Director shall precede any certification. The 
exemption is effective upon the execution of the certification. The 
Secretary shall immediately transmit the certification to the Federal 
Register for publication.
    (c) Testimony and statement under oath are subject to penalty of 
perjury--(1) Applicability. A former Commission employee may testify 
before any court, board, commission, or legislative body with respect to 
matters of fact within the personal knowledge of the former Commission 
employee. This provision does not, however, allow a former Commission 
employee, otherwise barred under 18 U.S.C. 207 (a), (b), or (c), to 
testify on behalf of another as an expert witness except (i) to the 
extent that the former employee may testify from personal knowledge as 
to occurrences which are relevant to the issues in the proceeding, 
including those in which the Commission employee participated, utilizing 
his or her expertise, or (ii) in any proceeding where it is determined 
that another expert in the field cannot practically be obtained, that it 
is impracticable for the facts or opinions on the same subject to be 
obtained by other means, and that the former Commission employee's 
testimony is required in the interest of justice.
    (2) Statements under penalty of perjury. A former Commission 
employee may make any statements required to be made under penalty of 
perjury, such as those required in registration statements for 
securities, tax returns, or security clearances. The exception does not, 
however, permit a former employee to submit pleadings, applications, or 
other documents in a representational capacity on behalf of another 
merely because the attorney or other representative must sign the 
documents under oath or penalty of perjury.



Sec. 200.735-126  Administrative enforcement proceedings.

    The following are basic guidelines for administrative enforcement of 
restrictions on postemployment activities:
    (a) Initiation of administrative disciplinary hearing. (1) On 
receipt of information regarding a possible violation of 18 U.S.C. 207, 
and after determining that such information does not appear to be 
frivolous, the Chairman shall expeditiously provide such information, 
along with any comments or agency regulations, to the Director and to 
the Criminal Division, Department of Justice. Any investigation or 
administrative action will be coordinated with the Department of Justice 
to avoid prejudicing criminal proceedings, unless the Department of 
Justice informs the Commission that it does not intend to initiate 
criminal prosecution.
    (2) Whenever the Chairman has determined after appropriate review 
that there is reasonable cause to believe that a former Commission 
employee has violated 18 U.S.C. 207 (a), (b), or (c) or implementing 
regulations of the Office of Government Ethics (5 CFR part 737), he or 
she shall initiate an administrative disciplinary proceeding by 
providing the former Commission employee with notice as defined in 
paragraph (b).

[[Page 14]]

    (3) The Chairman shall take all necessary steps to protect the 
privacy of former employees prior to a determination of sufficient cause 
to initiate an administrative disciplinary hearing.
    (b) Notice. (1) The Chairman shall provide the former Commission 
employee with notice of an administrative disciplinary proceeding and an 
opportunity for a hearing.
    (2) Notice to the former Commission employee must include--
    (i) A statement of allegations and the basis thereof in detail 
sufficient to enable the former Commission employee to prepare an 
adequate defense;
    (ii) Notification of the right to a hearing;
    (iii) An explanation of the method by which a hearing may be 
requested; and
    (iv) A copy of this subpart.
    (c) Examiner. (1) The presiding official at proceedings under this 
subpart shall be an individual to whom the Chairman has delegated 
authority to make a recommended determination (hereinafter referred to 
as examiner).
    (2) An examiner shall be an experienced government attorney of high 
moral character and sound judgment.
    (3) An examiner shall be impartial. No individual who has 
participated in any manner in the decision to initiate the proceedings 
may serve as an examiner in those proceedings.
    (d) Scheduling of hearing. In setting a hearing date, the examiner 
shall give due regard to the former Commission employee's need for--
    (1) Adequate time to prepare a defense properly, and
    (2) An expeditious resolution of allegations that may be damaging to 
his or her reputation.
    (e) Hearing rights. A hearing shall include, at a minimum, the 
following rights:
    (1) To be represented by counsel,
    (2) To introduce and examine witnesses and to submit physical 
evidence,
    (3) To confront and cross-examine adverse witnesses,
    (4) To present oral argument; and
    (5) To obtain a transcript or recording of the proceeding on 
request.
    (f) Burden of proof. In any hearing under this subpart the 
Commission has the burden of proof and must establish a violation by 
clear and convincing evidence. The case of the Commission shall be 
presented by the Office of the General Counsel.
    (g) Recommended determination. (1) The examiner shall make a 
recommended determination exclusively on matters of record in the 
proceeding and shall set forth therein all findings of fact and 
conclusions of law relevant to the matters at issue. The recommended 
determination shall be delivered to the parties.
    (2) Within ten (10) days of the date of receipt of the recommended 
determination either party may submit to the Chairman exceptions to the 
recommended determination and alternative findings of fact and 
conclusions of law.
    (h) Final administrative decision. (1) Within forty (40) days of the 
date of the recommended determination, the Chairman shall make a final 
administrative decision based solely on the record of the proceedings.
    (2) In the event that no hearing is requested, the Chairman shall 
make a final administrative decision within forty (40) days of the date 
notice is provided to the former employee and the record of the 
proceedings shall consist of the statement of allegations as defined in 
paragraph (b)(2)(i) and whatever written response the former employee 
shall provide.
    (3) The Chairman shall specify in the final administrative decision 
the findings of fact and conclusions of law that differ from the 
recommended determination of the hearing examiner.
    (i) Administrative sanctions. The Chairman may take appropriate 
action in the case of any individual who is found in violation of 18 
U.S.C. 207(a), (b), or (c) or implementing regulations of the Office of 
Government Ethics (5 CFR part 737) after a final administrative decision 
by--
    (1) Prohibiting the individual from making, on behalf of any other 
person (except the United States), any formal or informal appearance 
before, or, with the intent to influence, any oral or written 
communication to, the Commission on any matter of business for a period 
not to exceed five (5) years. This prohibition may be enforced by 
directing Commission employees to refuse to

[[Page 15]]

participate in any such appearance or to accept any such communication;
    (2) Taking other appropriate disciplinary action.
    (j) Judicial review. Any person found to have participated in a 
violation of 18 U.S.C. 207(a), (b), or (c) or these regulations may seek 
judicial review of the administrative determination. Review shall be 
before the appropriate United States district court.

[[Page 16]]



                          SUBCHAPTER A_GENERAL



PART 201_RULES OF GENERAL APPLICATION--Table of Contents




Sec.
201.0 Seal.
201.1 Applicability of part.

                         Subpart A_Miscellaneous

201.2 Definitions.
201.3 Commission offices, mailing address, and hours.
201.3a Missing children information.
201.4 Performance of functions.
201.5 Attendance fees and mileage.
201.6 Confidential business information.

           Subpart B_Initiation and Conduct of Investigations

201.7 Investigative authority and initiation of investigations.
201.8 Filing of documents.
201.9 Methods employed in obtaining information.
201.10 Public notices.
201.11 Appearance in an investigation as a party.
201.12 Requests.
201.13 Conduct of nonadjudicative hearings.
201.14 Computation of time, additional hearings, postponements, 
          continuances, and extensions of time.
201.15 Attorneys or agents.
201.16 Service of process and other documents.

Subpart C_Availability of Information to the Public Pursuant to 5 U.S.C. 
                                   552

201.17 Procedures for requesting access to records.
201.18 Denial of requests, appeals from denial.
201.19 Notification regarding requests for confidential business 
          information.
201.20 Fees.
201.21 Availability of specific records.

   Subpart D_Safeguarding Individual Privacy Pursuant to 5 U.S.C. 552a

201.22 Purpose and scope.
201.23 Definitions.
201.24 Procedures for requests pertaining to individual records in a 
          records system.
201.25 Times, places, and requirements for identification of individuals 
          making requests.
201.26 Disclosure of requested information to individuals.
201.27 Special procedures: Medical records.
201.28 Requests for correction or amendment of records.
201.29 Commission disclosure of individual records, accounting of record 
          disclosures, and requests for accounting of record 
          disclosures.
201.30 Commission review of requests for access to records, for 
          correction or amendment to records, and for accounting of 
          record disclosures.
201.31 Fees and employee conduct.
201.32 Specific exemptions.

Subpart E_Opening Commission Meetings to Public Observation Pursuant to 
                              5 U.S.C. 552b

201.33 Purpose and scope.
201.34 Definitions.
201.35 Notices to the public.
201.36 Closing a portion or portions of a meeting or a series of 
          meetings.
201.37 Changing the time, place, subject matter, or determination to 
          open or close a meeting following a public notice.
201.38 Requests by interested persons that the Commission close a 
          portion of a Commission meeting.
201.39 General Counsel's certification of Commission action in closing a 
          meeting or a series of meetings.
201.40 Records-retention requirements.
201.41 Public inspection and copying of records; applicable fees.

                 Subpart F_National Security Information

201.42 Purpose and scope.
201.43 Program.
201.44 Procedures.

 Subpart G_Enforcement of Nondiscrimination on the Basis of Handicap in 
    Programs or Activities Conducted by the U.S. International Trade 
                               Commission

201.101 Purpose.
201.102 Application.
201.103 Definitions.
201.104-201.109 [Reserved]
201.110 Self-evaluation.
201.111 Notice.
201.112-201.129 [Reserved]
201.130 General prohibitions against discrimination.
201.131-201.139 [Reserved]
201.140 Employment.
201.141-201.148 [Reserved]
201.149 Program accessibility: Discrimination prohibited.
201.150 Program accessibility: Existing facilities.

[[Page 17]]

201.151 Program accessibility: New construction and alterations.
201.152-201.159 [Reserved]
201.160 Communications.
201.161-201.169 [Reserved]
201.170 Compliance procedures.
201.171-201.999 [Reserved]

                        Subpart H_Debt Collection

201.201 Definitions.
201.202 Purpose and scope of salary and administrative offset rules.
201.203 Delegation of authority.
201.204 Salary offset.
201.205 Salary adjustments.
201.206 Administrative offset.
201.207 Administrative offset against amounts payable from Civil Service 
          Retirement and Disability Fund.
201.208 Tax refund offset.

    Authority: Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335), and 
sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless otherwise 
noted.

    Source: 27 FR 12118, Dec. 7, 1962, unless otherwise noted.



Sec. 201.0  Seal.

    (a) Pursuant to section 331(g) of the Tariff Act of 1930, as amended 
(19 U.S.C. 1331(g)), the United States International Trade Commission 
has adopted an official seal, the depiction of which follows:
[GRAPHIC] [TIFF OMITTED] TC05OC91.026

    (b) Custody and certification obligations. The Secretary shall have 
custody of the seal of the United States International Trade Commission 
and he, or the Acting Secretary, may execute under seal any 
certification required to authenticate any books, records, papers, or 
other documents as true copies of official records of the United States 
International Trade Commission.

(Sec. 331(g), Tariff Act of 1930, as amended (19 U.S.C. 1331(g)))

[40 FR 53384, Nov. 18, 1975; 40 FR 55838, Dec. 2, 1975]



Sec. 201.1  Applicability of part.

    This part relates generally to functions and activities of the 
Commission under various statutes and other legal authority. Rules 
having special application appear separately in parts 202 through 207, 
inclusive, and parts 210, 212 and 213, of this chapter. In case of 
inconsistency between a rule of general application and a rule of 
special application, the latter is controlling.

[68 FR 32973, June 3, 2003]



                         Subpart A_Miscellaneous



Sec. 201.2  Definitions.

    As used in this chapter--
    (a) Commission means the United States International Trade 
Commission;
    (b) Inspector General means the Inspector General of the Commission;
    (c) Tariff Act means the Tariff Act of 1930, 19 U.S.C. 1202-1677j, 
1677m-n;
    (d) Trade Expansion Act means the Trade Expansion Act of 1962, 19 
U.S.C. 1801-1991;
    (e) Trade Act means the Trade Act of 1974, 19 U.S.C. 2101-2487;
    (f) Trade Agreements Act means the Trade Agreements Act of 1979, 
Public Law 96-39, 93 Stat. 144;
    (g) Rule means a section of the Commission Rules of Practice and 
Procedure (19 CFR chapter II);
    (h) Secretary means the Secretary of the Commission.
    (i) Except for adjudicative investigations under subchapter C of 
this chapter, party means any person who has filed a complaint or 
petition on the basis of which an investigation has been instituted, or 
any person whose entry of appearance has been accepted pursuant to Sec. 
201.11 (a) or (c). Mere participation in an investigation without an 
accepted entry of appearance does not confer party status.
    (j) Person means an individual, partnership, corporation, 
association, or public or private organization.

[56 FR 11922, Mar. 21, 1991, as amended at 60 FR 37336, July 20, 1995; 
68 FR 32973, June 3, 2003]

[[Page 18]]



Sec. 201.3  Commission offices, mailing address, and hours.

    (a) Offices. The Commission's offices are located in the United 
States International Trade Commission Building on 500 E Street SW., 
Washington, DC.
    (b) Mailing address. All communications to the Commission should be 
addressed to the ``Secretary, U.S. International Trade Commission, 500 E 
Street SW., Washington, DC 20436.''
    (c) Hours. The business hours of the Commission are from 8:45 a.m. 
to 5:15 p.m., eastern standard or daylight savings time, whichever is in 
effect in Washington, DC. Any document filed with the Secretary of the 
Commission after 5:15 p.m. will be considered filed the next business 
day. If filing on that day would be untimely, the filing may not be 
accepted unless a request is made for acceptance of a late filing for 
good cause shown pursuant to 201.14(b)(2).

[45 FR 80276, Dec. 4, 1980, as amended at 68 FR 32973, June 3, 2003]



Sec. 201.3a  Missing children information.

    (a) Pursuant to 39 U.S.C. 3220, penalty mail sent by the Commission 
may be used to assist in the location and recovery of missing children. 
This section establishes procedures for such use and is applicable on a 
Commission-wide basis. The Commission's Office of Facilities Management, 
telephone 202-205-2741, shall be the point of contact for matters 
related to the implementation of this section.
    (b) Missing children information shall be inserted in or affixed to 
such mailings of Commission monthly calendars, notices, press releases, 
and other documents as the Commission may direct. Such missing children 
information shall be obtained exclusively from the National Center for 
Missing and Exploited Children.
    (c) The procedure established in subsection (b) above will result in 
missing childern information being inserted in an estimated 25 percent 
of the Commission's penalty mail and will cost an estimated $1,500 for 
the first year of implementation. The Director of Administration shall 
make such changes in the procedure as he deems appropriate to maximize 
the use of missing children information in the Commission's mail.

[51 FR 25195, July 11, 1986, as amended at 68 FR 32974, June 3, 2003]



Sec. 201.4  Performance of functions.

    (a) Conduct of business. A majority of the members of the Commission 
constitutes a quorum. The Commission may meet and exercise its powers at 
any place, and may, by one or more of its members, or by such agents as 
it may designate, prosecute any inquiry necessary to its duties in any 
part of the United States or in any foreign country.
    (b) Alteration or waiver of rules. Rules in this chapter may be 
amended, waived, suspended, or revoked by the Commission only. A rule 
may be waived or suspended only when in the judgment of the Commission 
there is good and sufficient reason therefor, provided the rule is not a 
matter of procedure required by law.
    (c) Authority to make decisions. Authority to interpret the 
Commission's rules and the laws applying to the Commission, and to make 
findings, determinations, or other decisions not relating to matters of 
internal management, is retained in the Commission itself and is not 
delegated.
    (d) Presentation of matter that may come within the purview of other 
laws. Whenever any party or person, including the Commission staff, has 
reason to believe that (1) a matter under investigation pursuant to 
section 337 of the Tariff Act of 1930, or (2) a matter under an 
investigation pursuant to section 202 of the Trade Act of 1974 (19 
U.S.C. 2252), which is causing increased imports may come within the 
purview of another remedial provision of law not the basis of such 
investigation, including but not limited to the antidumping provisions 
(19 U.S.C. 1673 et seq.) or the countervailing duty provisions (19 
U.S.C. 1671 et seq.) of the Tariff Act of 1930, then the party or person 
may file a suggestion of notification with the Commission that the 
appropriate agency be notified of such matter or circumstances, together 
with such information as the party or person has available. The 
Secretary shall promptly thereafter publish notice of the filing of such 
suggestion and information,

[[Page 19]]

and make them available for inspection and copying to the extent 
permitted by law. Any person may comment on the suggestion within 10 
days after the publication of said notice. Thereafter, the Commission 
shall determine whether notification is appropriate under the law and, 
if so, shall notify the appropriate agency of such matters or 
circumstances. The Commission may at any time make such notification in 
the absence of a suggestion under this rule when the Commission has 
reason to believe, on the basis of information before it, that 
notification is appropriate under law.

[27 FR 12118, Dec. 7, 1962, as amended at 45 FR 80276, Dec. 4, 1980; 68 
FR 32974, June 3, 2003]



Sec. 201.5  Attendance fees and mileage.

    (a) Deponents and witnesses. Any person compelled to appear in 
person to depose or testify in response to a subpoena shall be paid the 
same fees and mileage as are paid witnesses in the courts of the United 
States: Provided, that salaried employees of the United States summoned 
to depose or testify as to matters related to their public employment, 
irrespective of at whose instance they are summoned, shall be paid in 
accordance with applicable Government regulations.
    (b) Responsibility. The fees and mileage referred to in this section 
shall be paid by the party at whose instance deponents or witnesses 
appear: Provided, that when it is the Commission, one or more 
Commissioners, or one of its employees at whose instance deponents or 
witnesses appear, such fees and mileage shall be paid by the Commission.

[41 FR 17710, Apr. 27, 1976]



Sec. 201.6  Confidential business information.

    (a) Definitions. (1) Confidential business information is 
information which concerns or relates to the trade secrets, processes, 
operations, style of works, or apparatus, or to the production, sales, 
shipments, purchases, transfers, identification of customers, 
inventories, or amount or source of any income, profits, losses, or 
expenditures of any person, firm, partnership, corporation, or other 
organization, or other information of commercial value, the disclosure 
of which is likely to have the effect of either impairing the 
Commission's ability to obtain such information as is necessary to 
perform its statutory functions, or causing substantial harm to the 
competitive position of the person, firm, partnership, corporation, or 
other organization from which the information was obtained, unless the 
Commission is required by law to disclose such information. The term 
``confidential business information'' includes ``proprietary 
information'' within the meaning of section 777(b) of the Tariff Act of 
1930 (19 U.S.C. 1677f(b)). Nonnumerical characterizations of numerical 
confidential business information (e.g., discussion of trends) will be 
treated as confidential business information only at the request of the 
submitter for good cause shown.
    (2) Nondisclosable confidential business information is privileged 
information, classified information, or specific information (e.g., 
trade secrets) of a type for which there is a clear and compelling need 
to withhold from disclosure. Special rules for the handling of such 
information are set out in Sec. 206.17 and Sec. 207.7 of this chapter.
    (b) Procedure for submitting business information in confidence. (1) 
A request for confidential treatment of business information shall be 
addressed to the Secretary, United States International Trade 
Commission, 500 E Street SW., Washington, DC 20436, and shall indicate 
clearly on the envelope that it is a request for confidential treatment.
    (2) In the absence of good cause shown, any request relating to 
material to be submitted during the course of a hearing shall be 
submitted at least three (3) working days prior to the commencement of 
such hearing.
    (3) With each submission of, or offer to submit, business 
information which a submitter desires to be treated as confidential 
business information, under paragraph (a) of this section, the submitter 
shall provide the following, which may be disclosed to the public:
    (i) A written description of the nature of the subject information;
    (ii) A justification for the request for its confidential treatment;

[[Page 20]]

    (iii) A certification in writing under oath that substantially 
identical information is not available to the public;
    (iv) A copy of the document
    (A) Clearly marked on its cover as to the pages on which 
confidential information can be found;
    (B) With information for which confidential treatment is requested 
clearly identified by means of brackets; and
    (C) With information for which nondisclosable confidential treatment 
is requested clearly identified by means of triple brackets (except when 
submission of such document is withheld in accord with paragraph (b)(4) 
of this section); and
    (v) A nonconfidential copy of the documents as required by Sec. 
201.8(d).
    (4) The submission of the documents itemized in paragraph (b)(3) of 
this section will provide the basis for rulings on the confidentiality 
of submissions, including rulings on the confidentiality of submissions 
offered to the Commission which have not yet been placed under the 
possession, control, or custody of the Commission. The submitter has the 
option of providing the business information for which confidential 
treatment is sought at the time the documents itemized in paragraph 
(b)(3) of this section are provided or of withholding them until a 
ruling on their confidentiality has been issued.
    (c) Identification of business information submitted in confidence. 
Business information which a submitter desires to be treated as 
confidential shall be clearly labeled ``confidential business 
information'' when submitted, and shall be segregated from other 
material being submitted.
    (d) Approval or denial of requests for confidential treatment. 
Approval or denial of requests shall be made only by the Secretary or 
Acting Secretary. An approval or a denial of a request for confidential 
treatment shall be in writing. A denial shall specify the reason 
therefor, and shall advise the submitter of the right to appeal to the 
Commission.
    (e) Appeals from denial of confidential treatment. (1) For good 
cause shown, the Commission may grant an appeal from a denial by the 
Secretary of a request for confidential treatment of a submission. Any 
appeal filed shall be addressed to the Chairman, United States 
International Trade Commission, 500 E Street SW., Washington, DC 20436, 
and shall clearly indicate that it is a confidential submission appeal. 
An appeal may be made within twenty (20) days of a denial or whenever 
the approval or denial has not been forthcoming within ten (10) days 
(excepting Saturdays, Sundays, and Federal legal holidays) of the 
receipt of a confidential treatment request, unless an extension notice 
in writing with the reasons therefor has been provided the person 
requesting confidential treatment.
    (2) An appeal will be decided within twenty (20) days of its receipt 
(excepting Saturdays, Sundays, and Federal legal holidays) unless an 
extension notice in writing with the reasons therefor, has been provided 
the person making the appeal.
    (3) The justification submitted to the Commission in connection with 
an appeal shall be limited to that presented to the Secretary with the 
original or amended request. When the Secretary or Acting Secretary has 
denied a request on the ground that the submitter failed to provide 
adequate justification, any such additional justification shall be 
submitted to the Secretary for consideration as part of an amended 
request. For purposes of paragraph (e)(1) of this section, the twenty 
(20) day period for filing an appeal shall be tolled on the filing of an 
amended request and a new twenty (20) day period shall begin once the 
Secretary or Acting Secretary has denied the amended request, or the 
approval or denial has not been forthcoming within ten (10) days of the 
filing of the amended request. A denial of a request by the Secretary on 
the ground of inadequate justification shall not obligate a requester to 
furnish additional justification and shall not preclude a requester from 
filing an appeal with the Commission based on the justification earlier 
submitted to the Secretary.
    (f) Appeals from approval of confidential treatment. (1) For good 
cause shown, the Commission may grant an appeal from an approval by the 
Secretary of a request for confidential treatment of a submission. Any 
appeal filed shall be addressed to the Chairman, United

[[Page 21]]

States International Trade Commission, 500 E Street, S.W., Washington, 
DC 20436, shall show that a copy thereof has been served upon the 
submitter, and shall clearly indicate that it is a confidential 
submission appeal. An appeal may be made within twenty (20) days of the 
approval by the Secretary of a request for confidential treatment or 
whenever the approval or denial has not been forthcoming within ten (10) 
days (excepting Saturdays, Sundays, and Federal legal holidays) of the 
receipt of a confidential treatment request, unless an extension notice 
in writing with the reasons therefor has been provided the person 
requesting confidential treatment.
    (2) An appeal will be decided within twenty (20) days of its receipt 
(excepting Saturdays, Sundays, and Federal legal holidays) unless an 
extension notice, in writing with the reasons therefor, has been 
provided the person making the appeal.
    (g) Granting confidential status to business information. Any 
business information submitted in confidence and determined to be 
entitled to confidential treatment shall be maintained in confidence by 
the Commission and not disclosed except as required by law. In the event 
that any business information submitted to the Commission is not 
entitled to confidential treatment, the submitter will be permitted to 
withdraw the tender within five days of its denial of confidential 
treatment unless it is the subject of a request under the Freedom of 
Information Act or of judicial discovery proceedings. After such five 
day period, the business information deemed not entitled to confidential 
treatment, and not withdrawn, will be treated as public information.
    (h) Scope of provisions. The provisions of Sec. Sec. 201.6(b) and 
201.6 (d) through (g) shall not apply to adjudicative investigations 
under Subchapter C, Part 210, of the Commission's rules of practice and 
procedure.

[41 FR 28951, July 14, 1976, as amended at 49 FR 32571, Aug. 15, 1984; 
54 FR 13678, Apr. 5, 1989; 61 FR 37827, July 22, 1996; 68 FR 32974, June 
3, 2003]



           Subpart B_Initiation and Conduct of Investigations



Sec. 201.7  Investigative authority and initiation of investigations.

    (a) Investigative authority. In order to expedite the performance of 
its functions, the Commission may engage in investigative activities 
preliminary to and in aid of any authorized investigation, consolidate 
proceedings before it, and determine the scope and manner of its 
proceedings;
    (b) Initiation of investigations. Investigations may be initiated by 
the Commission on the Commission's own motion, upon request of the 
President or the United States Trade Representative, upon resolution of 
the Committee on Ways and Means of the House of Representatives or the 
Committee of Finance of the Senate, upon resolution of either branch of 
Congress, or upon application, petition, complaint, or request of 
private parties, as required or provided for in the pertinent statute, 
Presidential proclamation, Executive Order, or in this chapter.

[44 FR 76476, Dec. 26, 1979, as amended at 63 FR 29351, May 29, 1998]



Sec. 201.8  Filing of documents.

    (a) Where to file; date of filing. Documents shall be filed at the 
office of the Secretary of the Commission in Washington, DC. Such 
documents, if properly filed within the hours of operation specified in 
Sec. 201.3(c), will be deemed to be filed on the date on which they are 
actually received in the Commission.
    (b) Conformity with rules. Each document filed with the Commission 
for the purpose of initiating any investigation shall be considered 
properly filed if it conforms with the pertinent rules prescribed in 
this chapter. Substantial compliance with the pertinent rules may be 
accepted by the Commission provided good and sufficient reason is stated 
in the document for inability to comply fully with the pertinent rules.
    (c) Specifications for documents. Each document filed under this 
chapter shall be double-spaced, clear and legible, except that a 
document of two pages or less in length need not be double-spaced.

[[Page 22]]

    (d) Number of copies. A signed original (or a copy designated as an 
original) and fourteen (14) copies of each document shall be filed. All 
submissions shall be on letter-sized paper (8\1/2\ inches by 11 inches), 
except copies of documents prepared for another agency or a court (e.g. 
patent file wrappers or pleadings papers). The original and at least one 
copy of all submissions shall be printed on one side only and shall be 
unbound (although they may be stapled or held together by means of a 
clip). In the event that confidential treatment of the document is 
requested under Sec. 201.6, at least four (4) additional copies shall be 
filed, in which the confidential business information shall have been 
deleted and which shall have been conspicuously marked 
``nonconfidential'' or ``public inspection.'' In the event that 
confidential treatment is not requested, the document shall be 
conspicuously marked ``No confidential version filed.'' The name of the 
person signing the original shall be typewritten or otherwise reproduced 
on each copy.
    (e) Identification of party filing document. Each document filed 
with the Commission for the purpose of initiating any investigation 
shall show on the first page thereof the name, address, and telephone 
number of the party or parties by whom or on whose behalf the document 
is filed and shall be signed by the party filing the document or by a 
duly authorized officer, attorney, or agent of such party. (Also, any 
attorney or agent filing the document shall give his address and 
telephone number.) The signature of the person signing such a document 
constitutes a certification that he had read the document, that to the 
best of his knowledge and belief the statements contained therein are 
true, and that the person signing the document was duly authorized to 
sign it.
    (f) Electronic filing. Notwithstanding the relevant provisions of 
Sec. Sec. 201.8, 201.12, 201.13, 201.16, 206.8, 207.3, 207.10, 207.15, 
207.25, 207.30, 207.62, 207.67, 207.68, 207.93, 210.4, and 210.8 of the 
Commission's rules of practice and procedure (19 CFR 201.8, 201.12, 
201.13, 201.16, 206.8, 207.25, 207.3, 207.10, 207.15, 207.30, 207.62, 
207.67, 207.68, 207.93, 210.4, and 210.8) governing the filing of 
documents in paper form with the Commission, a person may instead or in 
addition choose to file electronically certain documents at http://
edis.usitc.gov. A person so choosing shall comply with the procedures 
set forth in the Commission's Handbook on Electronic Filing Procedures, 
which is available at the Office of the Secretary and at http://
edis.usitc.gov. The Commission's Handbook on Electronic Filing 
Procedures will include a description of documents that are permitted to 
be filed with the Commission in electronic form.
    (g) Cover Sheet. When making a paper filing, parties must complete 
the cover sheet on-line at http://edis.usitc.gov and print out the cover 
sheet for submission to the Office of the Secretary with the paper 
filing. For documents that are filed electronically, parties must 
complete the cover sheet for such filing on-line at http://
edis.usitc.gov at the time of the electronic filing. The party 
submitting the cover sheet is responsible for the accuracy of all 
information contained in the cover sheet, including, but not limited to, 
the security status and the investigation number, and must comply with 
applicable limitations on disclosure of business proprietary information 
or confidential information under Sec. 201.6 and Sec. Sec. 206.8, 
206.17, 207.3, and 207.7 of this chapter.

[41 FR 17710, Apr. 27, 1976, as amended at 49 FR 32571, Aug. 15, 1984; 
56 FR 11922, Mar. 21, 1991; 67 FR 68037, Nov. 8, 2002; 68 FR 32974, June 
3, 2003]



Sec. 201.9  Methods employed in obtaining information.

    In obtaining information necessary to carry out its functions and 
duties, the Commission may employ any means authorized by law. In 
general, the Commission obtains pertinent information from its own 
files, from other agencies of the Government, through questionnaires and 
correspondence, through field work by members of the Commission's staff, 
and from testimony and other information presented at the hearings.

[27 FR 12118, Dec. 7, 1962, as amended at 44 FR 76476, Dec. 26, 1979]

[[Page 23]]



Sec. 201.10  Public notices.

    As appropriate, notice of the receipt of documents properly filed, 
of the institution of investigations, of public hearings, and of other 
formal actions of the Commission will be given by publication in the 
Federal Register. In addition to such publication, a copy of each notice 
will be posted at the Office of the Secretary to the Commission in 
Washington, DC, and, as appropriate, copies will be sent to press 
associations, trade and similar organizations of producers and 
importers, and others known to have an interest in the subject matter.

[63 FR 29347, May 29, 1998]



Sec. 201.11  Appearance in an investigation as a party.

    (a) Who may appear as a party. Any person may apply to appear in an 
investigation as a party, either in person or by representative, by 
filing an entry of appearance with the Secretary. Each entry of 
appearance shall state briefly the nature of the person's reason for 
participating in the investigation and state the person's intent to file 
briefs with the Commission regarding the subject matter of the 
investigation. The Secretary shall promptly determine whether the person 
submitting the entry of appearance has a proper reason for participating 
in the investigation. In any investigation conducted under part 207 of 
this chapter, industrial users, and if the merchandise under 
investigation is sold at the retail level, representative consumer 
organizations, will be deemed to have a proper reason for participating 
in the investigation. If it is found that a person does not have a 
proper reason for participating in the investigation, that person shall 
be so notified by the Secretary and shall not be entitled to appear in 
the investigation as a party. A person found to have a proper reason for 
participating in the investigation shall be permitted to appear in the 
investigation as a party, and acceptance of such person's entry of 
appearance shall be signified by the Secretary's inclusion of such 
person on the service list established pursuant to paragraph (d) of this 
section.
    (b) Time for filing. (1) Except in the case of investigations 
conducted under part 207 of this chapter, each entry of appearance shall 
be filed with the Secretary not later than twenty-one (21) days after 
publication of the Commission's notice of investigation in the Federal 
Register.
    (2) In the case of investigations conducted under subpart B of part 
207 of this chapter, each entry of appearance shall be filed with the 
Secretary not later than seven (7) days after publication of the 
Commission's notice of investigation in the Federal Register. A party 
that files a notice of appearance during such time need not file an 
additional notice of appearance during the portion of the investigation 
conducted under subpart C of part 207 of this chapter.
    (3) Notwithstanding paragraph (b)(2) of this section, a party may 
file an entry of appearance during the final phase of an investigation 
conducted under part 207 of this chapter no later than twenty-one (21) 
days prior to the hearing date listed in the Federal Register notice 
published pursuant to Sec. 207.24(b) of this chapter.
    (4) In the case of reviews conducted under subpart F of part 207 of 
this chapter, each entry of appearance shall be filed with the Secretary 
not later than twenty-one (21) days after publication in the Federal 
Register of the notice of institution described in Sec. 207.60(d) of 
this chapter.
    (5) Notwithstanding paragraph (b)(4) of this section, a party may 
file an entry of appearance in a review conducted under subpart F of 
part 207 of this chapter within the period specified in the notice 
issued under Sec. 207.62(c) of this chapter. This period shall be at 
least 45 days.
    (c) Late filing. Any entry of appearance filed with the Secretary 
after the filing date established in paragraph (b) of this section shall 
be referred to the Chairman, or other person designated to conduct the 
investigation, who shall promptly determine whether to accept such entry 
for good cause shown by the person desiring to file the notice. The 
Secretary shall promptly notify the submitter of a decision to deny the

[[Page 24]]

entry, or if the entry is accepted, include such person on the service 
list established pursuant to paragraph (d) of this section.
    (d) Service list. Upon the expiration of the time for filing notices 
of appearance established in paragraph (b) of this section, the 
Secretary shall prepare a service list. The service list shall contain 
the names and addresses of all persons, or their representatives, who 
are parties to the investigation pursuant to Sec. 201.2(h) and 
paragraph (a) of this section. Upon the acceptance of a late entry of 
appearance pursuant to paragraph (c) of this section, the Secretary 
shall amend the service list to include the name and address of the 
person whose notice has been accepted and shall promptly forward such 
notice to all parties to the investigation.

[56 FR 11922, Mar. 21, 1991, as amended at 61 FR 37828, July 22, 1996; 
63 FR 30607, June 5, 1998]



Sec. 201.12  Requests.

    Any party to a nonadjudicative investigation may request the 
Commission to take particular action with respect to that investigation. 
Such requests shall be by letter adressed to the Secretary, shall be 
placed by him in the record, and shall be served on all other parties. 
The Commission shall take such action or make such response as it deems 
appropriate.

[47 FR 6189, Feb. 10, 1982]



Sec. 201.13  Conduct of nonadjudicative hearings.

    (a) In general. Public hearings are held by the Commission when 
required by law or, if not required by law, when in the judgment of the 
Commission there is good and sufficient reason therefor. Public hearings 
will be held at the time and place specified in notices issued under 
Sec. 201.10. Public hearings are ordinarily held in the Hearing Room of 
the International Trade Commission Building, in Washington, DC, but may 
be held elsewhere at the Commission's discretion.
    (b) Presiding officials--(1) Who presides. Public hearings or 
conferences in nonadjudicative investigations will be conducted by the 
Commission or by one or more Commissioners. When the Commission deems it 
necessary, such hearings will be conducted by one or more designated 
employees. In all cases the transcript of the testimony at a hearing 
will be presented for the consideration of the Commission.
    (2) Powers and duties. The Commission, one or more of the 
Commissioners, or one or more designated employees shall have all the 
powers to conduct fair and impartial hearings, to take necessary action 
to avoid delay in the disposition of proceedings, including the 
prescription of time allocated to testimony, argument, and questioning, 
to regulate the course of hearings and the conduct of the parties and 
their counsel therein, and to maintain order.
    (c) Participation in a hearing--(1) Who may participate. A party may 
participate in the hearing, either in person or by representative. A 
nonparty who has testimony or arguments that may aid the Commission's 
deliberations may also participate, under such conditions as may be 
established by the presiding officials at the hearing.
    (2) Notices of participation. Notices of participation in a hearing 
shall be filed with the Secretary at least three (3) days in advance of 
the date set for the hearing or two (2) days in advance of the date set 
in the notice of investigation for a prehearing conference, whichever 
shall first occur, except that the presiding officials may waive this 
requirement for good cause. Witnesses on behalf of persons filing 
notices of participation need not file separate notices.
    (d) Witness list. Each person who files a notice of participation 
pursuant to paragraph (c) of this section shall simultaneously file with 
the Secretary a list of the witnesses he intends to call at the hearing.
    (e) Order of the testimony. Unless otherwise ordered by the 
presiding officials, witnesses will give testimony in the order 
designated by the Secretary to the Commission. Each witness, after being 
duly sworn, will be permitted to proceed with his or her testimony 
without interruption except by presiding officials.
    (f) Supplementary material. A party to the investigation may file 
with the Secretary supplementary material,

[[Page 25]]

other than remarks read into the record, for acceptance into the record. 
The party shall file any such material with the Secretary at the 
hearing. Supplementary materials must be marked with the name of the 
organization submitting it. As used herein, the term supplementary 
material refers to (1) additional graphic material such as charts and 
diagrams used to illuminate an argument or clarify a position and (2) 
information not available to a party at the time its prehearing brief 
was filed.
    (g) Questioning of witnesses. After completing testimony, a witness 
may be questioned by any member of the Commission or by its staff. Any 
participant may, with the permission of the presiding officials, direct 
questions to the witness, but only for the purpose of assisting the 
Commission in obtaining relevant and material facts with respect to the 
subject matter of the investigation.
    (h) Oral argument. When, in the opinion of the presiding officials, 
time permits and the nature of the proceedings and the complexity or 
importance of the questions of fact or law involved warrant, the 
presiding officials may allow oral argument after conclusion of the 
testimony in a hearing. The presiding officials will determine in each 
instance the time to be allowed for argument and the allocation thereof.
    (i) Briefs--(1) Parties. Briefs of the information produced at the 
hearing and arguments thereon may be presented to the Commission by 
parties to the investigation. Time to be allowed for submission of 
briefs will be set after conclusion of testimony and oral argument, if 
any.
    (2) Nonparties. Any person who is not a party to an investigation 
may submit a short statement for the record regarding the subject matter 
of an investigation.
    (j) Verification of testimony. Oral or written information submitted 
at hearings will, upon order of the Commission, be subject to 
verification from books, papers, and records of the persons submitting 
the information and from any other available sources.
    (k) Hearing transcripts. A verbatim transcript of all hearings will 
be taken. The Commission does not distribute transcripts of the records 
of such hearings. Any person may inspect the transcript of a hearing at 
the Commission's office in Washington, DC, or purchase it from the 
official reporter.
    (l) To facilitate the conduct of hearings, parties intending to use 
easels, audio visual, and similar equipment in the course of hearing 
presentations should advise the Secretary of their intent to use such 
equipment at least three (3) working days before the hearing.
    (m) Closed sessions. (1) Upon a request filed by a party to the 
investigation no later than seven (7) days prior to the date of the 
hearing (or three (3) days prior to the date of a conference conducted 
under Sec. 207.15 of this chapter) that
    (i) Identifies the subjects to be discussed;
    (ii) Specifies the amount of time requested; and
    (iii) Justifies the need for a closed session with respect to each 
subject to be discussed, the Commission (or the Director, as defined in 
Sec. 207.2(c) of this chapter, for a conference under Sec. 207.15 of 
this chapter) may close a portion of a hearing (or conference under 
Sec. 207.15 of this chapter) held in any investigation in order to 
allow such party to address confidential business information, as 
defined in Sec. 201.6, during the course of its presentation.
    (2) In addition, during each hearing held in an investigation 
conducted under section 202 of the Trade Act, as amended, or in an 
investigation under title VII of the Tariff Act as provided in Sec. 
207.24 of this chapter, following the public presentation of the 
petitioner(s) and that of each panel of respondents, the Commission 
will, if it deems it appropriate, close the hearing in order to allow 
Commissioners to question parties and/or their representatives 
concerning matters involving confidential business information.

[47 FR 6189, Feb. 10, 1982, as amended at 47 FR 33682, Aug. 4, 1982; 54 
FR 13678, Apr. 5, 1989; 59 FR 66722, Dec. 28, 1994; 61 FR 37829, July 
22, 1996; 68 FR 32975, June 3, 2003]

[[Page 26]]



Sec. 201.14  Computation of time, additional hearings, postponements, 

continuances, and extensions of time.

    (a) Computation of time. Computation of any period of time 
prescribed or allowed by the rules in this chapter, by order of the 
Commission, or by order of the presiding officer under part 210 of this 
chapter shall begin with the first business day following the day on 
which the act or event initiating such period of time shall have 
occurred. The last day of the period so computed is to be included, 
unless it is a Saturday, Sunday, or Federal legal holiday, in which 
event the period runs until the end of the next business day. When the 
period of time prescribed or allowed is less than 7 days, intermediate 
Saturdays, Sundays, and Federal legal holidays shall be excluded from 
the computation. As used in this rule, a Federal legal holiday refers to 
any full calendar day designated as a legal holiday by the President or 
the Congress of the United States. In the event of an early or all-day 
closing of the Commission on a business day, the Secretary is authorized 
to accept on the next full business day filings due the day of the early 
or all-day closing, without requiring the granting of an extension of 
time by the Chairman of the Commission, or such other person designated 
to conduct the investigation.
    (b) Additional hearings, postponements, continuances, and extensions 
of time. (1) Prior to its final determination in any investigation, the 
Commission may in its discretion for good cause shown grant additional 
hearings, postponements, or continuances of hearings.
    (2) The Chairman of the Commission or such other person as is 
designated to conduct the investigation shall determine whether to grant 
for good cause shown extensions of time for performing any act required 
by or pursuant to the rules contained in this chapter.
    (3) A request that the Commission take any of the actions described 
in this section shall be filed with the Secretary and served on all 
parties to the investigation.

[41 FR 17710, Apr. 27, 1976, as amended at 56 FR 11923, Mar. 21, 1991; 
68 FR 32975, June 3, 2003]



Sec. 201.15  Attorneys or agents.

    (a) In general. No register of attorneys or agents who may practice 
before the Commission is maintained. No application for admission to 
practice is required. Any person desiring to appear as attorney or agent 
before the Commission may be required to show to the satisfaction of the 
Commission his acceptability in that capacity. Any attorney or agent 
practicing before the Commission, or desiring so to practice, may for 
good cause shown be suspended or barred from practicing before the 
Commission, or have imposed on him such lesser sanctions as the 
Commission deems appropriate, but only after he has been accorded an 
opportunity to present his views in the matter.
    (b) Former officers or employees. No former officer or employee of 
the Commission who personally and substantially participated in a matter 
which was pending in any manner or form in the Commission during his 
employment shall be eligible to appear before the Commission as attorney 
or agent in connection with such matter. No former officer or employee 
of the Commission shall be eligible to appear as attorney or agent 
before the Commission in connection with any matter which was pending in 
any manner or form in the Commission during his employment, unless he 
first obtains written consent from the Commission.

[27 FR 12118, Dec. 7, 1962, as amended at 56 FR 11923, Mar. 21, 1991]



Sec. 201.16  Service of process and other documents.

    (a) By the Commission. Except when service by another method shall 
be specifically ordered by the Commission, the service of a process or 
other document of the Commission shall be served by anyone duly 
authorized by the Commission and be effected--
    (1) By mailing or delivering a copy of the document to the person to 
be served, to a member of the partnership to be served, to the 
president, secretary, other executive officer, or member of the board of 
directors of the corporation, association, or other organization to be 
served, or, if an attorney represents any of the above before the

[[Page 27]]

Commission, by mailing or delivering a copy to such attorney; or
    (2) By leaving a copy thereof at the principal office of such 
person, partnership, corporation, association, or other organization, 
or, if an attorney represents any of the above before the Commission, by 
leaving a copy at the office of such attorney.
    (b) By a party other than the Commission. Except when service by 
another method shall be specifically ordered by the Commission, the 
service of a document of a party shall be effected:
    (1) By mailing or delivering copies of the document to the Secretary 
to the Commission (the number of copies being as provided for in Sec. 
201.8(d) of this part) and a nonconfidential version thereof to each 
other party, or, if the party is represented by an attorney before the 
Commission, by mailing or delivering a nonconfidential version thereof 
to such attorney; or
    (2) By leaving copies thereof at the office of the Secretary of the 
Commission (the number of copies being as provided for in Sec. 201.8(d) 
of this part) and at the principal office of each other party, or, if a 
party is represented by an attorney before the Commission, by leaving 
copies at the office of such attorney.
    (3) When service is by mail, it is complete upon mailing of the 
document.
    (4) When service is by mail, it shall be by first class mail, 
postage prepaid. In the event the addressee is outside the United 
States, service shall be by first class airmail, postage prepaid.
    (c) Proof of service; certificate. (1) Each document filed with the 
Secretary to the Commission by a party in the course of an investigation 
(as provided in Sec. 201.8 of this part) shall be served on each other 
party to the investigation.
    (2) Each document served by a party shall include a certificate of 
service, setting forth the manner and date of such service. The 
certificate of service shall be deemed proof of service of the document. 
In the event a document is not accompanied by a certificate of service, 
the Secretary shall not accept such document for filing and shall 
promptly notify the submitter.
    (d) Additional time after service by mail. Whenever a party or 
Federal agency or department has the right or is required to perform 
some act or take some action within a prescribed period after the 
service of a document upon it and the document is served upon it by 
mail, three (3) calendar days shall be added to the prescribed period, 
except that when mailing is to a person located in a foreign country, 
ten (10) calendar days shall be added to the prescribed period.
    (e) Additional time after service by overnight delivery. Whenever a 
party or Federal Agency or department has the right or is required to 
perform some act or take some action within a prescribed period after 
the service of a document upon it and the document is served by 
overnight delivery, one (1) day shall be added to the prescribed period. 
``Overnight delivery'' is defined as delivery by the next business day.
    (f) Electronic Service. With the prior consent of the Secretary, 
parties may serve documents by electronic means in all matters before 
the Commission, except for proceedings conducted under section 337 of 
the Tariff Act of 1930 that are before an administrative law judge. In 
the case of proceedings under section 337 of the Tariff Act of 1930, 
parties may serve documents by electronic means with the prior consent 
of the presiding administrative law judge while the proceeding is before 
an administrative law judge. Parties may only effect electronic service 
on recipients who have provided written consent thereto to the Secretary 
or the presiding administrative law judge. If electronic service is 
permitted, paragraphs (a), (b) and (d) of this section shall not apply. 
However, any dispute that arises among parties regarding electronic 
service must be resolved by the parties themselves, without the 
Commission's involvement.
    A party may, upon notice to all parties, withdraw its consent to 
electronic service and require service under paragraphs (a) and (b) of 
this section.

(19 U.S.C. 1335 and the Administrative Procedure Act, 5 U.S.C. 551, et 
seq.)

[41 FR 17711, Apr. 27, 1976, as amended at 47 FR 6190, Feb. 10, 1982; 47 
FR 33682, Aug. 4, 1982; 49 FR 32571, Aug. 15, 1984; 67 FR 68037, Nov. 8, 
2002; 73 FR 38320, July 7, 2008]

[[Page 28]]



Subpart C_Availability of Information to the Public Pursuant to 5 U.S.C. 
                                   552

    Authority: 19 U.S.C. 1335, 5 U.S.C. 552.

    Source: 40 FR 8328, Feb. 27, 1975, unless otherwise noted.



Sec. 201.17  Procedures for requesting access to records.

    (a) Requests for records. (1) A request for any information or 
record shall be addressed to the Secretary, United States International 
Trade Commission, 500 E Street SW., Washington, DC 20436 and shall 
indicate clearly in the request, and if the request is in paper form on 
the envelope, that it is a ``Freedom of Information Act Request.'' A 
written request may be made either (1) in paper form, or (2) 
electronically by contacting the Commission at http://www.usitc.gov/
foia.htm.
    (2) Any request shall reasonably describe the requested record to 
facilitate location of the record. If the request pertains to a record 
that is part of the Commission's file in an investigation, the request 
should identify the investigation by number and name. A clear 
description of the requested record(s) should reduce the time required 
by the Commission to locate and disclose releasable responsive record(s) 
and minimize any applicable search and copying charges.
    (3) Except as provided in paragraph (b) of this section, requests 
will be processed in the order in which they are filed.
    (4) Requests for transcripts of hearings should be addressed to the 
official hearing reporter, the name and address of which can be obtained 
from the Secretary. A copy of such request shall at the same time be 
forwarded to the Secretary.
    (5) Copies of public Commission reports and other publications can 
be requested by calling or writing the Publications Office in the Office 
of the Secretary. Generally, such publications can be obtained more 
quickly from this office. Certain Commission publications are sold by 
the Superintendent of Documents, U.S. Government Printing Office, and 
are available from that agency at the price set by that agency.
    (6) A day-to-day, composite record will be kept by the Secretary of 
each request with the disposition thereof.
    (b) Expedited processing. (1) Requests for records under paragraph 
(a)(1) of this section will be taken out of order and given expedited 
treatment whenever it is determined that they involve:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exist possible questions about the government's integrity which 
affect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requester within paragraph 
(b)(1)(ii) of this section, if not a full-time member of the news media, 
must establish that he or she is a person whose main professional 
activity or occupation is information dissemination, though it need not 
be his or her sole occupation. A requester within paragraph (b)(1)(ii) 
of this section also must establish a particular urgency to inform the 
public about the government activity involved in the request, beyond the 
public's right to know about government activity generally. The 
formality of certification may be waived as a matter of administrative 
discretion.
    (4) Within ten calendar days of receipt of a request for expedited 
processing, the Secretary will decide whether to grant it and will 
notify the requester of the decision. If a request for expedited 
treatment is granted, the request will be given priority and will

[[Page 29]]

be processed as soon as practicable. If a request for expedited 
processing is denied, any appeal of that decision will be acted on 
expeditiously.
    (c) Public reading room. The Commission maintains a public reading 
room in the Office of the Secretary for access to the records that the 
FOIA requires to be made regularly available for public inspection and 
copying. Reading room records created by the Commission on or after 
November 1, 1996, are available electronically. This includes a current 
subject-matter index of reading room records, which will indicate which 
records are available electronically.

[63 FR 29347, May 29, 1998, as amended at 68 FR 32975, June 3, 2003]



Sec. 201.18  Denial of requests, appeals from denial.

    (a) Written requests for inspection or copying of records shall be 
denied only by the Secretary or Acting Secretary, or, for records 
maintained by the Office of Inspector General, the Inspector General. 
Denials of written requests shall be in writing, shall specify the 
reason therefor, and shall advise the person requesting of the right to 
appeal to the Commission. Oral requests may be dealt with orally, but if 
the requester is dissatisfied he shall be asked to put the request in 
writing.
    (b) An appeal from a denial of a request must be received within 
sixty days of the date of the letter of denial and shall be made to the 
Commission and addressed to the Chairman, United States International 
Trade Commission, 500 E Street SW., Washington, DC 20436. Any such 
appeal shall be in writing, and shall indicate clearly in the appeal, 
and if the appeal is in paper form on the envelope, that it is a 
``Freedom of Information Act Appeal.'' An appeal may be made either in 
paper form, or electronically by contacting the Commission at http://
www.usitc.gov/foia.htm.
    (c) Except when expedited treatment is requested and granted, 
appeals will be decided in the order in which they are filed, but in any 
case within twenty days (excepting Saturdays, Sundays, and legal 
holidays) unless an extension, noticed in writing with the reasons 
therefor, has been provided to the person making the request. Notice of 
the decision on appeal and the reasons therefor will be made promptly 
after a decision. Requests for expedited treatment should conform with 
the requirements in Sec. 201.17(c) of this part.
    (d) The extensions of time mentioned in paragraph (c) of this 
section shall be made only for one or more of the following reasons:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are requested 
in a single communication; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having a substantial subject-matter interest therein.
    (e) The extensions of time mentioned in paragraph (c) of this 
section shall not exceed ten working days in the aggregate.

[40 FR 8328, Feb. 27, 1975, as amended at 54 FR 13678, Apr. 5, 1989; 60 
FR 37336, July 20, 1995; 63 FR 29348, May 29, 1998; 68 FR 32975, June 3, 
2003]



Sec. 201.19  Notification regarding requests for confidential business 

information.

    (a) In general. Business information provided to the Commission by a 
business submitter which the Commission has designated as ``confidential 
business information'' will not be disclosed pursuant to a Freedom of 
Information Act (FOIA) request except in accordance with this section.
    (b) Definitions. The following definitions are to be used in 
reference to this section:
    Confidential business information means commercial or financial 
information that has been designated as confidential business 
information by the Commission under Sec. 201.6 of this part.

[[Page 30]]

    Submitter means any person or entity who provides confidential 
business information, directly or indirectly, to the Commission. The 
term includes, but is not limited to, corporations, producers, 
importers, and state and federal governments, as well as others who have 
an administrative relationship with the Commission such as contractors, 
bidders and vendors.
    (c) Notice to submitters. Except as provided for in paragraph (e) of 
this section, the Commission will, to the extent permitted by law, 
provide a submitter with prompt written notice of a FOIA request or 
administrative appeal encompassing its confidential business information 
whenever required under paragraph (d) of this section, in order to 
afford the submitter an opportunity to object to disclosure pursuant to 
paragraph (f) of this section. Such written notice will describe the 
nature of the confidential business information requested. The requester 
will also be notified that notice and opportunity to object to are being 
provided to a submitter.
    (d) When notice is required. Notice will be given to a submitter in 
writing at submitter's last known address whenever:
    (1) The information the subject of the FOIA request or appeal has 
been designated by the Commission as confidential business information; 
and
    (2) The Commission has reason to believe that the information may 
not be protected from disclosure under FOIA Exemptions 3 or 4.
    (e) Exceptions to notice requirment. The notice requirements of 
paragraph (c) of this section will not apply if:
    (1) The Commission determines that the information should not be 
disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public; or
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).
    (f) Opportunity to object to disclosure. In general, the Commision 
has 10 working days in which to respond to a FOIA request. Through the 
notice described in paragraph (c) of this section, the Commission will 
afford a submitter an opportunity, within the period afforded to the 
Commission to make its decision in response to the FOIA request, to 
provide the Commission with a detailed written statement of any 
objection to disclosure. Such statement shall be filed at least one 
working day before the Commission is required to respond to the FOIA 
request, and it shall specify all grounds for withholding any of the 
information under any exemption of FOIA. In the case of FOIA Exemptions 
3 or 4, it shall demonstrate why the information should continue to be 
considered confidential business information within the meaning of Sec. 
201.6 of this part and should not be disclosed. The submitter's claim of 
continued confidentiality should be supported by a certification by an 
officer or authorized representative of the submitter. Information 
provided by a submitter pursuant to this paragraph may itself be subject 
to disclosure under FOIA.
    (g) Notice of intent to disclose. The Commission will consider 
carefully a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose the information. 
Whenever the Commission decides to disclose such information over the 
objection of a submitter, the Commission will forward to the submitter a 
written notice which will include:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (2) A description of the information to be disclosed; and
    (3) A specified disclosure date.

Such notice of intent to disclose will be forwarded to the submitter a 
reasonable number of days prior to the specified disclosure date and the 
requester will be notified likewise.
    (h) Notice of FOIA lawsuit. Whenever a requester brings suit seeking 
to compel disclosure of information that the Commission has designated 
as confidential business information, the Commission will promptly 
notify the submitter at its last known address. For the purpose of this 
paragraph, the Secretary may assume such address to be that given on the 
submission.

[54 FR 13678, Apr. 5, 1989, as amended at 68 FR 32975, June 3, 2003]

[[Page 31]]



Sec. 201.20  Fees.

    (a) In general. Fees pursuant to 5 U.S.C. 552 shall be assessed 
according to the schedule contained in paragraph (b) of this section for 
services rendered by agency personnel in responding to and processing 
requests for records under this subpart. All fees so assessed shall be 
charged to the requester, except where the charging of fees is limited 
under paragraph (c) of this section or where a waiver or reduction of 
fees is granted under paragraph (d) of this section. The Secretary will 
collect all applicable fees. Requesters shall pay fees by check or money 
order made payable to the Treasury of the United States.
    (b) Charges. In responding to requests under this subpart, the 
following fees shall be assessed, unless a waiver or reduction of fees 
has been granted pursuant to paragraph (d) of this section:
    (1) Search. (i) No search fee shall be assessed with respect to 
requests by educational institutions, noncommercial scientific 
institutions, and representatives of the news media as defined in 
paragraphs (j) (6), (7), and (8) of this section, respectively. Search 
fees shall be assessed with respect to all other requests, subject to 
the limitations of paragraph (c) of this section. The secretary may 
assess fees for time spent searching even if agency personnel fail to 
locate any respective record or where records located are subsequently 
determined to be entirely exempt from disclosure.
    (ii) For each quarter hour spent by agency personnel in salary 
grades GS-2 through GS-10 in searching for and retrieving a requested 
record, the fee shall be $4.00. When the time of agency personnel in 
salary grades GS-11 and above is required, the fee shall be $6.50 for 
each quarter hour of search and retrieval time spent by such personnel.
    (iii) For computer searches of records, which may be undertaken 
through the use of existing programming, requester shall be charged the 
actual direct costs of conducting the search, although certain 
requesters (as defined in paragraph (c)(2) of this section) shall be 
entitled to the cost equivalent of two hours of manual search time 
without charge. These direct costs shall include the cost of operating a 
central processing unit for that portion of operating time that is 
directly attributable to searching for records responsive to a request, 
as well as the costs of operator/programmer salary apportionable to the 
search (at no more than $6.50 per quarter hour of time so spent).
    (2) Duplication. Duplication fees shall be assessed with respect to 
all requesters, subject to the limitations of paragraph (c) of this 
section. For a paper photocopy of a record (no more than one copy of 
which need be supplied), the fee shall be $0.10 per page. For copies 
produced by computer, such as tapes or printouts, the Secretary shall 
charge the actual direct costs, including operator time, of producing 
the copy. For other methods of duplication, the Secretary shall charge 
the actual direct costs of duplicating a record.
    (3) Review. (i) Review fees shall be assessed with respect to only 
those requesters who seek records for a commercial use, as defined in 
paragraph (j)(5) of this section. For each quarter hour spent by agency 
personnel in reviewing a requested record for possible disclosure, the 
fee shall be $6.50.
    (ii) Review fees shall be assessed only for the initial record 
review, i.e., all of the review undertaken when a component analyzes the 
applicability of a particular exemption to a particular record or record 
portion at the initial request level. No charge shall be assessed for 
review at the administrative appeal level of an exemption already 
applied. However, records or record portions withheld pursuant to an 
exemption that is subsequently determined not to apply may be reviewed 
again to determine the applicability of other exemptions not previously 
considered. The costs of such a subsequent review are properly 
assessable, particularly where that review is made necessary by a change 
of circumstances.
    (c) Limitations on charging fees. (1) No search or review fee shall 
be charged for a quarter-hour period unless more than half of that 
period is required for search or review.

[[Page 32]]

    (2) Except for requesters seeking records for a commercial use (as 
defined in paragraph (j)(5) of this section), the Secretary shall 
provide without charge--
    (i) The first 100 pages of duplication (or its cost equivalent), and
    (ii) The first two hours of search (or its cost equivalent).
    (3) Whenever a total fee calculated under paragraph (b) of this 
section is $25.00 or less, no fee shall be charged.
    (4) The provisions of paragraphs (c)(2) and (3) of this section work 
together. For requesters other than those seeking records for a 
commercial use, no fee shall be charged unless the cost of search is in 
excess of two hours plus the cost of duplication in excess of 100 pages 
exceeds $25.00.
    (d) Waiver or reduction of fees. (1) Records responsive to a request 
under 5 U.S.C. 552 shall be furnished without charge or at a charge 
reduced below that established under paragraph (b) of this section where 
the Secretary determines, based upon information provided by a requester 
in support of a fee waiver request or otherwise made known to the 
Secretary that disclosure of the requested information is in the public 
interest, because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government and is 
not primarily in the commercial interest of the requester. Requests for 
a waiver or reduction of fees shall be considered on a case-by-case 
basis.
    (2) In order to determine whether the first fee waiver requirement 
is met--i.e., that disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government--
the Secretary shall consider the following four factors in sequence:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government.'' The 
subject matter of the requested records, in the context of the request, 
must specifically concern identifiable operations or activities of the 
federal government--with a connection that is direct and clear, not 
remote or attenuated. Furthermore, the records must be sought for their 
informative value with respect to those government operations or 
activities; a request for access to records for their intrinsic 
informational content alone will not satisfy this threshold 
consideration.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative on specific 
government operations or activities in order to hold potential for 
contributing to increased public understanding of those operations and 
activities. The disclosure of information that already is in the public 
domain, in either a duplicative or a substantially identical form, would 
not be likely to contribute to such understanding, as nothing new would 
be added to the public record.
    (iii) The contribution of an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of the public at large, 
as opposed to the individual understanding of the requester or a narrow 
segment of interested persons. A requester's identity and 
qualifications--e.g., expertise in the subject area and ability and 
intention to effectively convey information to the general public--shall 
be considered. It will be presumed that a representative of the news 
media (as defined in paragraph (j)(8) of this section) who has access to 
the means of public dissemination readily will be able to satisfy this 
consideration. Requests from libraries or other record repositories (or 
requesters who intend merely to disseminate information to such 
institutions) shall be analyzed, like those of other requesters, to 
identify a particular person who represents that he actually will use 
the requested information in scholarly or other analytic work and then 
disseminate it to the general public.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject

[[Page 33]]

matter in question, as compared to the level of public understanding 
existing prior to the disclosure, must be likely to be enhanced by the 
disclosure to a significant extent. The Secretary shall not make 
separate judgments as to whether information, even though it in fact 
would contribute significantly to public understanding of the operations 
or activities of the government, is ``important'' enough to be made 
public.
    (3) In order to determine whether the second fee waiver requirement 
is met--i.e., that disclosure of the requested information is not 
primarily in the commercial interest of the requester--the Secretary 
shall consider the following two factors in sequence:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. The Secretary shall consider all commercial 
interests of the requester (with reference to the definition of 
commercial use in paragraph (j)(5) of this section), or any person on 
whose behalf the requester may be acting, but shall consider only those 
interests which would be furthered by the requested disclosure. In 
assessing the magnitude of identified commercial interests, 
consideration shall be given to the role that such FOIA-disclosed 
information plays with respect to those commercial interests, as well as 
to the extent to which FOIA disclosures serve those interests overall. 
Requesters shall be given a reasonable opportunity in the administrative 
process to provide information bearing upon this consideration.
    (ii) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requester.'' 
A fee waiver or reduction is warranted only where, once the ``public 
interest'' standard set out in paragraph (d)(2) of this section is 
satisfied, that public interest can fairly be regarded as greater in 
magnitude than that of the requester's commercial interest in 
disclosure. The Secretary shall ordinarily presume that, where a news 
media requester has satisfied the ``public interest'' standard, that 
will be the interest primarily served by disclosure to that requester. 
Disclosure to data brokers or others who compile and market government 
information for direct economic return shall not be presumed to 
primarily serve the ``public interest.''
    (4) Where only a portion of the requested records satisfies both of 
the requirements for a waiver or reduction of fees under this paragraph, 
a waiver or reduction shall be granted only as to that portion.
    (5) Requests for the waiver or reduction of fees shall address each 
of the factors listed in paragraphs (d) (2) and (3) of this section, as 
they apply to each record request.
    (e) Notice of anticipated fees in excess of $25.00. Where the 
Secretary determines or estimates that the fees to be assessed under 
this section may amount to more than $25.00, he shall notify the 
requester as soon as practicable of the actual or estimated amount of 
the fees, unless the requester has indicated in advance his willingness 
to pay fees as high as those anticipated. (If only a portion of the fee 
can be estimated readily, the Secretary shall advise the requester that 
the estimated fee may be only a portion of the total fee.) In cases 
where a requester has been notified that actual or estimated fees may 
amount to more than $25.00, the request will be deemed not to have been 
received until the requester has agreed to pay the anticipated total 
fee. A notice of the requester pursuant to this paragraph shall offer 
him the opportunity to confer with agency personnel in order to 
reformulate his request to meet his needs at a lower cost.
    (f) Aggregating requests. Where the Secretary reasonably believes 
that a requester or a group of requesters acting in concert is 
attempting to divide a request into a series of requests for the purpose 
of evading the assessment of fees, the Secretary may aggregate any such 
requests and charge accordingly. The Secretary may presume that multiple 
requests of such type made within a 30-day period have been made in 
order to evade fees. Where requests are separated by a longer period, 
the Secretary shall aggregate them only where

[[Page 34]]

there exists a reasonable basis for determining that said aggregation is 
warranted, e.g., where the requests involve clearly related matters. 
Multiple requests involving unrelated matters shall not be aggregated
    (g) Advance payments. (1) Where the Secretary estimates that a total 
fee to be assessed under this section is likely to exceed $250.00, the 
Secretary may require the requester to make an advance payment of an 
amount up to the entire estimated fee before beginning to process the 
request, except where the Secretary receives a satisfactory assurance of 
full payment from a requester with a history of prompt payment.
    (2) Where a requester has previously failed to pay a records access 
fee within 30 days of the date of billing, the Secretary may require the 
requester to pay the full amount owed, plus any applicable interest (as 
provided for in paragraph (h) of this section), and to make an advance 
payment of the full amount of any estimated fee before he begins to 
process a new request or continues to process a pending request from 
that requester.
    (3) For requests other than those described in paragraphs (g) (1) 
and (2) of this section, the Secretary shall not require the requester 
to make an advance payment, i.e., a payment made before work is 
commenced or continued on a request. Payment owed on work already 
completed is not an advance payment.
    (4) Where the Secretary acts under paragraph (g) (1) or (2) of this 
section, the administrative time limits described in subsection (a)(6) 
of the FOIA for the processing of an initial request or an appeal, plus 
permissible extensions of these time limits, shall be deemed not to 
begin to run until the Secretary has received payment of the assessed 
fee.
    (h) Charging interest. The Secretary may assess interest charges on 
an unpaid bill starting on the 31st day following the day on which the 
bill was sent to the requester. Once a fee payment has been received by 
the Secretary, even if not processed, the accrual of interest shall be 
stayed. Interest charges shall be assessed at the rate prescribed in 
section 3717 of title 31 U.S.C. and shall accrue from the date of the 
billing. The Secretary shall follow the provisions of the Debt 
Collection Act of 1982, Pub. L. 97-265 (Oct. 25, 1982), and its 
implementing procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (i) Other statutes specifically providing for fees. (1) The fee 
schedule of this section does not apply with respect to the charging of 
fees under a statute specifically providing for setting the level of 
fees for particular types of records--i.e., any statute that 
specifically requires a government entity such as the Government 
Printing Office or the National Technical Information Service, to set 
and collect fees for particular types of records--in order to:
    (i) Serve both the general public and private sector organizations 
by conveniently making available government information;
    (ii) Ensure that groups and individuals pay the cost of publications 
and other services that are for their special use so that these costs 
are not borne by the general taxpaying public;
    (iii) Operate an information-dissemination activity on a self-
sustaining basis to the maximum extent possible; or
    (iv) Return revenue to the Treasury for defraying, wholly or in 
part, appropriate funds used to pay the costs of disseminating 
government information.
    (2) Where records responsive to requests are maintained for 
distribution by agencies operating statutorily based fee schedule 
programs, the Secretary shall inform requesters of the steps necessary 
to obtain records from those sources.
    (j) Definitions. For the purpose of this section:
    (1) The term direct costs means those expenditures which the agency 
actually incurs in searching for and duplicating (and, in the case of 
commercial use requesters, reviewing) records to respond to a FOIA 
request. Direct costs include, for example the salary of the employee 
performing the work (the basic rate of pay for the employee plus 16 
percent of that rate to cover benefits) and the cost of operating 
duplicating machinery. Not included in direct costs are overhead 
expenses such

[[Page 35]]

as costs of space and heating or lighting of the facility in which the 
records are stored.
    (2) The term search includes all time spent looking for material 
that is responsive to a request, including page-by-page or line-by-line 
identification of material within documents. The Secretary shall ensure, 
however, that searches are undertaken in the most efficient and least 
expensive manner reasonably possible; thus, for example, the Secretary 
shall not engage in line-by-line search where merely duplicating an 
entire document would be quicker and less expensive.
    (3) The term duplication refers to the process of making a copy of a 
record necessary to respond to a FOIA request. Such copies can take the 
form of paper copy, microform, audio-visual materials, or machine-
readable documentation (e.g., magnetic tape or disk), among others. The 
copy provided shall be in a form that is reasonably usable by 
requesters.
    (4) The term review refers to the process of examining a record 
located in response to a request in order to determine whether any 
portion of it is permitted to be withheld. It also includes processing 
any record for disclosure, e.g., doing all that is necessary to excise 
it and otherwise prepare it for release, although review costs shall be 
recoverable even where there ultimately is no disclosure of a record. 
Review time does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (5) The term commercial use in the context of a request refers to a 
request from or on behalf of one who seeks information for a use or 
purpose that furthers the commercial, trade, or profit interests of the 
requester or the person on whose behalf the request is made, which can 
include furthering those interests through litigation. The Secretary 
shall determine, as well as reasonably possible, the use to which a 
requester will put the records requested. Where the circumstances of a 
request suggest that the requester will put the records sought to a 
commercial use, either because of the nature of the request itself or 
because the Secretary otherwise has reasonable cause to doubt a 
requester's stated use, the Secretary shall provide the requester a 
reasonable opportunity to submit further clarification.
    (6) The term educational institution refers to a preschool, a public 
or private elementary or secondary school, an institution of 
undergraduate higher education, an institution of graduate higher 
education, an institution of professional education, and an institution 
of vocational education, which operates a program or programs of 
scholarly research. To be eligible for inclusion in this category, a 
requester must show that the request is being made as authorized by and 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use but are sought in furtherance of 
scholarly research.
    (7) The term noncommercial scientific institution refers to an 
institution that is not operated on a ``commercial'' basis as that term 
is referenced in paragraph (j)(5) of this section, and which is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry. To 
be eligible for inclusion in this category, a requester must show that 
the request is being made as authorized by and under the auspices of a 
qualifying institution and that the records are not sought for a 
commercial use but are sought in furtherance of scientific research.
    (8) The term representative of the news media refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large and publishers of 
periodicals (but only in those instances where they can qualify as 
disseminators of ``news'') who make their products available for 
purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they must 
demonstrate a clear basis for expecting publication through that 
organization; a publication contract would

[[Page 36]]

be the clearest proof, but the Secretary shall also look to the past 
publication record of a requester in making this determination. To be 
eligible for inclusion in this category, a requester also must not be 
seeking the requested records for a commercial use. In this regard, a 
request for records supporting the news dissemination function of the 
requester shall not be considered to be for a commercial use.
    (k) Charges for other services and materials. Apart from the other 
provisions of this section, where the Secretary elects, as a matter of 
administrative discretion, to comply with a request for a special 
service or materials, such as certifying that records are true copies or 
sending them other than by ordinary mail, the actual direct costs of 
providing the service or materials shall be charged.

[54 FR 13673, Apr. 5, 1989, as amended at 63 FR 29348, May 29, 1998]



Sec. 201.21  Availability of specific records.

    (a) Records available. The following information, on request to the 
Secretary of the Commission, is available for public inspection and 
copying: (1) final opinions, including concurring and dissenting 
opinions, as well as orders, made in the adjudication of cases; (2) 
those statements of policy and interpretations which have been adopted 
by the agency; and (3) administrative staff manuals and instructions to 
staff that affect a member of the public. Available information 
includes, but is not limited to: (i) Applications, petitions, and other 
formal documents filed with the Commission, (ii) notices to the public 
concerning Commission matters, (iii) transcripts of testimony taken and 
exhibits submitted at hearings, (iv) reports to the President, to either 
or both Houses of Congress, or to Committees of Congress, release of 
which has been authorized by the President or the legislative body 
concerned, (v) reports and other documents issued for general 
distribution. Much of the information described above also is available 
on the Commission's World Wide Web site. The Commission's home page is 
at http://www.usitc.gov. The Web site also includes information subject 
to repeated Freedom of Information Act requests. Persons accessing the 
Web site can find instructions on how to locate Commission information 
by following the ``Freedom of Information Act'' link on the home page.
    (b) Records not available. Information specifically exempted from 
disclosure by 5 U.S.C. 552(b), including reports to the President, to 
either or both Houses of Congress, or to Committees of Congress, the 
release of which has not been authorized by the President or the 
legislative body concerned, and confidential business data as defined in 
18 U.S.C. 1905 and 19 CFR 201.06 are not available to the public.
    (c) Information requested in cases or matters to which the 
Commission is not a party. (1) The procedure specified in this section 
will apply to all demands directed to Commission employees for the 
production of documents or for testimony that relates in any way to the 
employees' official duties. These procedures will also apply to demands 
directed to former employees if the demands seek nonpublic materials or 
information acquired during Commission employment. The provisions of 
paragraph (c)(2) of this section will also apply to demands directed to 
the agency. For purposes of this section, the term demand means any 
request, order or subpoena for testimony or production of documents; the 
term subpoena means any compulsory process in a case or matter to which 
the Commission is not a party; the term nonpublic includes any material 
or information which, under Sec. 201.21(b), is exempt from availability 
for public inspection and copying; the term employee means any current 
or former officer or employee of the Commission; the term documents 
means all records, papers or official files, including without 
limitation, official letters, telegrams, memoranda, reports, studies, 
calendar and diary entries, graphs, notes, charts, tabulations, data 
analysis, statistical or information accumulations, records of meetings 
and conversations, film impressions, magnetic tapes, and sound or 
mechanical reproductions; the term case or matter means any civil 
proceeding before a court of law, administrative board, hearing officer, 
or other

[[Page 37]]

body conducting a legal or administrative proceeding in which the 
Commission is not a named party.
    (2) Prior to or simultaneously with a demand to a Commission 
employee for the production of documents or for testimony concerning 
matters relating to official duties, the party seeking such production 
or testimony must serve upon the General Counsel of the Commission an 
affidavit, or if that is not feasible, then a statement which sets forth 
the title of the case, the forum, the party's interest in the case, the 
reasons for the request, and a showing that the desired testimony or 
documents are not reasonably available from any other source. Where 
testimony is sought, the party must also provide a summary of the 
testimony desired, the intended use of the testimony, and show that 
Commission records could not be provided and used instead of the 
requested testimony. A subpoena for testimony from a Commission employee 
concerning official matters or for the production of documents shall be 
served in accordance with Rule 45 of the Federal Rules of Civil 
Procedure and a copy of the subpoena shall be sent to the General 
Counsel.
    (3) Any employee or former employee who is served with a subpoena or 
other demand shall promptly advise the General Counsel of the service of 
the subpoena or other demand, the nature of the documents or information 
sought, and all relevant facts and circumstances.
    (4) Absent written authorization from the Chairman of the Commission 
(``Chairman''), the employee shall respectfully decline to produce the 
requested documents, to testify, or to otherwise disclose requested 
information. If a court rules that the demand must be complied with 
despite the absence of such written authorization, the employee upon 
whom the demand is made shall respectfully refuse to comply based upon 
these regulations and Touhy v. Ragan, 340 U.S. 462 (1951).
    (5) The Chairman will consider and act upon subpoenas under this 
section with due regard for statutory restrictions, the Commission's 
rules and the public interest, taking into account such factors as the 
need to conserve employees' time for conducting official business, the 
need to prevent the expenditure of the United States government's time 
and money for private purposes, the need to maintain impartiality 
between private litigants in cases where no substantial governmental 
interest is involved, and the relevant legal standards for determining 
whether justification exists for the disclosure of nonpublic information 
and documents. If the Chairman determines that the subpoenaed documents 
or information are protected by a privilege or that the Commission has a 
duty in law or equity to protect such documents or information from 
disclosure, the General Counsel shall move the court to quash the 
subpoena or for other appropriate action.
    (6) The General Counsel may consult or negotiate with counsel or the 
party seeking testimony or documents to refine and limit the demand so 
that compliance is less burdensome, or obtain information necessary to 
make the determination described in paragraph (c)(5) of this section. 
Failure of the counsel or party seeking the testimony or documents to 
cooperate in good faith to enable the General Counsel to make an 
informed recommendation to the Chairman under paragraph (c)(5) of this 
section may serve as the basis for a determination not to comply with 
the demand.
    (7) Permission to testify will, in all cases, be limited to the 
information set forth in the affidavit as described in paragraph (c)(2) 
of this section, or to such portions thereof as the Chairman deems 
proper.
    (8) If the Chairman authorizes the testimony of an employee, then 
the General Counsel shall arrange for the taking of the testimony by 
methods that are least disruptive of the official duties of the 
employee. Testimony may, for example, be provided by affidavits, answers 
to interrogatories, written depositions, or depositions transcribed, 
recorded, or preserved by any other means allowable by law. Costs of 
providing testimony, including transcripts, will be borne by the party 
requesting the testimony. Such costs shall also include reimbursing the 
Commission for the usual and ordinary

[[Page 38]]

expenses attendant upon the employee's absence from his or her official 
duties in connection with the case or matter, including the employee's 
salary and applicable overhead charges and any necessary travel 
expenses.
    (9) The Secretary in consultation with the General Counsel is 
further authorized to charge reasonable fees to parties demanding 
documents or information. Such fees, calculated to reimburse the 
government for the expense of responding to such demand, may include the 
costs of time expended by Commission employees to process and respond to 
the demand, attorney time for reviewing the demand and for related legal 
work in connection with the demand, and expenses generated by equipment 
used to search for, produce and copy the responsive information. In 
general, such fees will be assessed at the rates and in the manner 
specified in Sec. 201.20 of this part.
    (10) This section does not affect the rights and procedures 
governing the public access to official documents pursuant to the 
Freedom of Information Act or the Privacy Act.
    (11) This section is intended to provide instructions to Commission 
employees and does not create any right or benefit, substantive or 
procedural, enforceable by any party against the Commission.

[40 FR 8328, Feb. 27, 1975, as amended at 54 FR 13676, Apr. 5, 1989; 68 
FR 32975, June 3, 2003]



   Subpart D_Safeguarding Individual Privacy Pursuant to 5 U.S.C. 552a

    Source: 63 FR 29348, May 29, 1998, unless otherwise noted.



Sec. 201.22  Purpose and scope.

    This subpart contains the rules that the Commission follows under 
the Privacy Act of 1974, 5 U.S.C. 552a. The rules in this subpart apply 
to all records in systems of records maintained by the Commission that 
are retrieved by an individual's name or other personal identifier. They 
describe the procedures by which individuals may request access to 
records about themselves, request amendment or correction of those 
records, and request an accounting of disclosures of those records by 
the Commission.



Sec. 201.23  Definitions.

    For the purpose of these regulations:
    (a) The term individual means a citizen of the United States or an 
alien lawfully admitted for permanent residence;
    (b) The term maintain includes maintain, collect, use, or 
disseminate;
    (c) The term record means any item, collection, or grouping of 
information about an individual that is maintained by the Commission, 
including, but not limited to, his or her education, financial 
transactions, medical history, and criminal or employment history and 
that contains his or her name, or the identifying number, symbol, or 
other identifying particular assigned to the individual;
    (d) The term system of records means a group of any records under 
the control of the Commission from which information is retrieved by the 
name of the individual or by some identifying particular assigned to the 
individual;
    (e) The term Privacy Act Officer refers to the Director, Office of 
Administration, United States International Trade Commission, 500 E 
Street SW., Washington, DC 20436, or his or her designee.



Sec. 201.24  Procedures for requests pertaining to individual records in a 

records system.

    (a) A request by an individual to gain access to his or her 
record(s) or to any information pertaining to him or her which is 
contained in a system of records maintained by the Commission shall be 
addressed to the Privacy Act Officer, United States International Trade 
Commission, 500 E Street SW., Washington, DC 20436, and shall indicate 
clearly both on the envelope and in the letter that it is a Privacy Act 
request.
    (b) In order to facilitate location of requested records, whenever 
possible, the request of the individual shall name the system(s) of 
records maintained by the Commission which he or she believes contain 
records pertaining to him or her, shall reasonably describe the 
requested records, and identify the

[[Page 39]]

time period in which the records were compiled.
    (c) The Privacy Act Officer shall acknowledge receipt of a request 
within ten days (excluding Saturdays, Sundays, and legal public 
holidays), and wherever practicable, indicate whether or not access can 
be granted. If access is not to be granted, the requestor shall be 
notified of the reason in writing.
    (d) The Privacy Act Officer, or, the Inspector General, if such 
records are maintained by the Inspector General, shall ascertain whether 
the systems of records maintained by the Commission contain records 
pertaining to the individual, and whether access will be granted. 
Thereupon the Privacy Act Officer shall:
    (1) Notify the individual whether or not the requested record is 
contained in any system of records maintained by the Commission; and
    (2) Notify the individual of the procedures as prescribed in Secs. 
201.25 and 201.26 of this part by which the individual may gain access 
to those records maintained by the Commission which pertain to him or 
her. Access to the records will be provided within 30 days (excluding 
Saturdays, Sundays, and legal public holidays).



Sec. 201.25  Times, places, and requirements for identification of individuals 

making requests.

    (a) If an individual wishes to examine his or her records in person, 
it shall be the responsibility of the individual requester to arrange an 
appointment with the Privacy Act Officer for the purpose of inspecting 
individual records. The time of inspection shall be during the regular 
office hours of the Commission, 8:45 a.m. to 5:15 p.m., Monday through 
Friday. The time arranged should be mutually convenient to the requester 
and to the Commission.
    (b) The place where an individual may gain access to records 
maintained by the Commission which pertain to him or her shall be at the 
United States International Trade Commission Building, 500 E Street SW., 
Washington, DC 20436. The Privacy Act Officer shall inform the 
individual requester of the specific room wherein inspection will take 
place.
    (c) An individual may also request the Privacy Act Officer to 
provide the individual with a copy of his or her records by certified 
mail.
    (d) An individual who requests to gain access to those records 
maintained by the Commission which pertain to him or her shall not be 
granted access to those records without first presenting adequate 
identification to the Privacy Act Officer. Adequate identification may 
include, but is not limited to, a government identification card, a 
driver's license, Medicare card, a birth certificate, or a passport. If 
requesting records by mail, an individual must provide full name, 
current address, and date and place of birth. The request must be signed 
and either notarized or submitted under 28 U.S.C. 1746, which permits 
statements to be made under penalty of perjury as a substitute for 
notarization. In order to help the identification and location of 
requested records, a requestor may also, at his or her option, include 
the individual's social security number.



Sec. 201.26  Disclosure of requested information to individuals.

    (a) Once the Privacy Act Officer has made a determination to grant a 
request for access to individual records, in whole or in part, the 
Privacy Act Officer shall inform the requesting individual in writing 
and permit the individual to review the pertinent records and to have a 
copy made of all or any portion of them. Where redactions due to 
exemptions pursuant to Sec. 201.32 would render such records or 
portions thereof incomprehensible, the Privacy Act Officer shall furnish 
an abstract in addition to an actual copy.
    (b) An individual has the right to have a person of his or her own 
choosing accompany him or her to review his or her records. The Privacy 
Act Officer shall permit a person of the individual requester's choosing 
to accompany the individual during inspection.
    (c) When the individual requests the Privacy Act Officer to permit a 
person of the individual's choosing to accompany him or her during the 
inspection of his or her records, the Privacy Act

[[Page 40]]

Officer shall require the individual requester to furnish a written 
statement authorizing discussion of the records in the accompanying 
person's presence.
    (d) The Privacy Act Officer shall take all necessary steps to insure 
that individual privacy is protected while the individual requester is 
inspecting his or her records or while those records are being 
discussed. Only the Privacy Act Officer shall accompany the individual 
as representative of the Commission during the inspection of the 
individual's records. The Privacy Act Officer shall be authorized to 
discuss the pertinent records with the individual.



Sec. 201.27  Special procedures: Medical records.

    (a) While an individual has an unqualified right of access to the 
records in systems of records maintained by the Commission which pertain 
to him or her, medical and psychological records merit special treatment 
because of the possibility that disclosure will have an adverse physical 
or psychological effect upon the requesting individual. Accordingly, in 
those instances where an individual is requesting the medical and/or 
psychological records which pertain to him or her, he or she shall, in 
his or her Privacy Act request to the Privacy Act Officer as called for 
in Sec. 201.24(a) of this part, specify a physician to whom the medical 
and/or psychological records may be released.
    (b) It shall be the responsibility of the individual requesting 
medical or psychological records to specify a physician to whom the 
requested records may be released. If an individual refuses to name a 
physician and insists on inspecting his or her medical or psychological 
records in the absence of a doctor's discussion and advice, the 
individual shall so state in his or her Privacy Act request to the 
Privacy Act Officer as called for in Sec. 201.24(a) of this part and 
the Privacy Act Officer shall provide access to or transmit such records 
directly to the individual.



Sec. 201.28  Requests for correction or amendment of records.

    (a) If, upon viewing his or her records, an individual disagrees 
with a portion thereof or feels sections thereof to be erroneous, the 
individual may request amendment[s] of the records pertaining to him or 
her. The individual should request such an amendment in writing and 
should identify each particular record in question, the system[s] of 
records wherein the records are located, specify the amendment 
requested, and specify the reasons why the records are not correct, 
relevant timely or complete. The individual may submit any documentation 
that would be helpful. The request for amendment of records shall be 
addressed to the Privacy Act Officer, United States International Trade 
Commission, 500 E Street SW., Washington, DC 20436, and shall clearly 
indicate both on the envelope and in the letter that it is a Privacy Act 
request for amendment of records.
    (b) Not later than 10 days (excluding Saturdays, Sundays and legal 
public holidays) after the date of receipt of a Privacy Act request for 
amendment of records, the Privacy Act Officer shall acknowledge such 
receipt in writing. Such a request for amendment will be granted or 
denied by the Privacy Act Officer or, for records maintained by the 
Inspector General. If the request is granted, the Privacy Act Officer, 
or the Inspector General for records maintained by the Inspector 
General, shall promptly make any correction of any portion of the record 
which the individual believes is not accurate, relevant, timely, or 
complete. If, however, the request is denied, the Privacy Act Officer 
shall inform the individual of the refusal to amend the record in 
accordance with the individual's request and give the reason(s) for the 
refusal. In cases where the Privacy Act Officer or the Inspector General 
has refused to amend in accordance with an individual's request, he or 
she also shall advise the individual of the procedures under Sec. 
201.30 of this part for the individual to request a review of that 
refusal by the full Commission or by an officer designated by the 
Commission.



Sec. 201.29  Commission disclosure of individual records, accounting of record 

disclosures, and requests for accounting of record disclosures.

    (a) It is the policy of the Commission not to disclose, except as 
permitted

[[Page 41]]

under 5 U.S.C. 552a(b), any record which is contained in any system of 
records maintained by the Commission to any person, or to another 
agency, except pursuant to a written request by, or with the prior 
written consent of, the individual to whom the record pertains.
    (b) Except for disclosures either to officers and employees of the 
Commission, or to contractor employees who, in the Inspector General's 
or the Privacy Act Officer's judgment, as appropriate, are acting as 
federal employees, who have a need for the record in the performance of 
their duties, and any disclosure required by 5 U.S.C. 552, the Privacy 
Act Officer shall keep an accurate accounting of:
    (1) The date, nature, and purpose of each disclosure of a record to 
any person or to another agency under paragraph (a) of this section; and
    (2) The name or address of the person or agency to whom the 
disclosure is made.
    (c) The Privacy Act Officer shall retain the accounting required by 
paragraph (b) of this section for at least five years or the life of the 
record, whichever is longer, after such disclosure.
    (d) Except for disclosures made to other agencies for civil or 
criminal law enforcement purposes pursuant to 5 U.S.C. 552a(b)(7), the 
Privacy Act Officer shall make any accounting made under paragraph (b) 
of this section available to the individual named in the record at the 
individual's request.
    (e) An individual requesting an accounting of disclosure of his or 
her records should make the request in writing to the Privacy Act 
Officer, United States International Trade Commission, 500 E Street SW., 
Washington, DC 20436. The request should identify each particular record 
in question and, whenever possible, the system[s] of records wherein the 
requested records are located, and clearly indicate both on the envelope 
and in the letter that it is a Privacy Act request for an accounting of 
disclosure of records.
    (f) Where the Commission has provided any person or other agency 
with an individual record and such accounting as required by paragraph 
(b) of this section has been made, the Privacy Act Officer shall inform 
all such persons or other agencies of any correction, amendment, or 
notation of dispute concerning said record.



Sec. 201.30  Commission review of requests for access to records, for 

correction or amendment to records, and for accounting of record disclosures.

    (a) The individual who disagrees with the refusal of the Privacy Act 
Officer or the Inspector General for access to a record, to amend a 
record, or to obtain an accounting of any record disclosure, may request 
a review of such refusal by the Commission within 60 days of receipt of 
the denial of his or her request. A request for review of such a refusal 
should be addressed to the Chairman, United States International Trade 
Commission, 500 E Street, SW., Washington, DC 20436, and shall clearly 
indicate both on the envelope and in the letter that it is a Privacy Act 
review request.
    (b) Not later than 30 days (excluding Saturdays, Sundays, and legal 
public holidays) from the date on which the Commission receives a 
request for review of the Privacy Act Officer's or the Inspector 
General's refusal to grant access to a record, to amend a record, or to 
provide an accounting of a record disclosure, the Commission shall 
complete such a review and make a final determination thereof unless, 
for good cause shown, the Commission extends the 30-day period.
    (c) After the individual's request has been reviewed by the 
Commission, if the Commission agrees with the Privacy Act Officer's or 
the Inspector General's refusal to grant access to a record, to amend a 
record, or to provide an accounting of a record disclosure, in 
accordance with the individual's request, the Commission shall:
    (1) Notify the individual in writing of the Commission's decision;
    (2) For requests to amend or correct records, advise the individual 
that he or she has the right to file a concise statement of disagreement 
with the Commission which sets forth his or her reasons for disagreement 
with the refusal of the Commission to grant the individual's request; 
and

[[Page 42]]

    (3) Notify the individual of his or her legal right, if any, to 
judicial review of the Commission's final determination.
    (d) In any disclosure, containing information about which the 
individual has filed a statement of disagreement regarding an amendment 
of an individual's record, the Privacy Act Officer, or, for records 
maintained by the Inspector General, the Inspector General, shall 
clearly note any portion of the record which is disputed and shall 
provide copies of the statement and, if the Commission deems it 
appropriate, copies of a concise statement of the reasons of the 
Commission for not making the amendments requested, to persons or other 
agencies to whom the disputed record has been disclosed.



Sec. 201.31  Fees and employee conduct.

    (a) The Commission shall not charge any fee for the cost of 
searching for and reviewing an individual's records.
    (b) Reproduction, duplication or copying of records by the 
Commission shall be at the rate of $0.10 per page. There shall be no 
charge, however, when the total amount does not exceed $25.00.
    (c) The Privacy Act Officer shall establish rules of conduct for 
persons involved in the design, development, operation, or maintenance 
of any system of records, or in maintaining any record, and periodically 
instruct each such person with respect to such rules and the 
requirements of the Privacy Act including the penalties for 
noncompliance.

[63 FR 29348, May 29, 1998, as amended at 68 FR 32975, June 3, 2003]



Sec. 201.32  Specific exemptions.

    (a) Pursuant to 5 U.S.C. 552a(k)(2), and in order to protect the 
effectiveness of Inspector General investigations by preventing 
individuals who may be the subject of an investigation from obtaining 
access to the records and thus obtaining the opportunity to conceal or 
destroy evidence or to intimidate witnesses, records contained in the 
system titled Office of Inspector General Investigative Files (General), 
insofar as they include investigatory material compiled for law 
enforcement purposes, shall be exempt from this subpart and from 
subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of the 
Privacy Act. However, if any individual is denied any right, privilege, 
or benefit to which he is otherwise entitled to under Federal law due to 
the maintenance of this material, such material shall be provided to 
such individual except to the extent that the disclosure of such 
material would reveal the identity of a source who furnished information 
to government investigators under an express promise that the identity 
of the source would be held in confidence.
    (b) Pursuant to 5 U.S.C. 552a(j)(2), and in order to protect the 
confidentiality and integrity of Inspector General investigations by 
preventing individuals who may be the subject of an investigation from 
obtaining access to the records and thus obtaining the opportunity to 
conceal or destroy evidence or to intimidate witnesses, records 
maintained in the Office of Inspector General Investigative Files 
(Criminal), insofar as they contain information pertaining to the 
enforcement of criminal laws, shall be exempt from this subpart and from 
the Privacy Act, except that subsections (b), (c)(1) and (2), (e)(4)(A) 
through (F), (e)(6), (7), (9), (10), and (11) and (i) shall still apply 
to these records.
    (c) Pursuant to 5 U.S.C. 552a(k)(1), (5) and (6), records contained 
in the system entitled ``Personnel Security Investigative Files'' have 
been exempted from subsections (c)(3), (d), (e)(1), (e)(1)(G) through 
(I) and (f) of the Privacy Act. Pursuant to section 552a(k)(1) of the 
Privacy Act, the Commission exempts records that contain properly 
classified information that pertains to national defense or foreign 
policy and is obtained from other systems of records or another Federal 
agency. Application of exemption (k)(1) may be necessary to preclude the 
data subject's access to and amendment of such classified information 
under 5 U.S.C. 552a(d). All information about individuals in these 
records that meets the criteria stated in 5 U.S.C. 552a(k)(5) is also 
exempted because this system contains investigatory material compiled 
solely for determining suitability, eligibility, and qualifications for 
Federal civilian employment, Federal contracts or access to classified

[[Page 43]]

information. To the extent that the disclosure of such material would 
reveal the identity of a source who furnished information to the 
Government under an express promise that the identity of the source 
would be held in confidence, or, prior to September 27, 1975, under an 
implied promise that the identity of the source would be held in 
confidence, the application of exemption (k)(5) will be required to 
honor such a promise should an individual request access to the 
accounting of disclosure, or access to or amendment of the record, that 
would reveal the identity of a confidential source. All information in 
these records that meets the criteria stated in 5 U.S.C. 552a(k)(6) is 
also exempt because portions of a case file record may relate to testing 
and examining material used solely to determine individual 
qualifications for appointment or promotion in the Federal service. 
Access to or amendment of this information by the data subject would 
compromise the objectivity and fairness of the testing or examining 
process.



Subpart E_Opening Commission Meetings to Public Observation Pursuant to 
                              5 U.S.C. 552b

    Authority: 5 U.S.C. 552b; 19 U.S.C. 1335.

    Source: 42 FR 11243, Feb. 28, 1977, unless otherwise noted.



Sec. 201.33  Purpose and scope.

    (a) Consistent with the principle that the public is entitled to the 
fullest practicable information regarding the decisionmaking processes 
of the Federal Government, it is the purpose of this subpart to open the 
meetings of the United States International Trade Commission to public 
observation while protecting the rights of individuals and the ability 
of the Commission to carry out its statutory functions and 
responsibilities. These regulations are promulgated pursuant to the 
directive of section (g) of the Government in the Sunshine Act (5 U.S.C. 
552b(g)), and specifically implement sections (b) through (f) of said 
act (5 U.S.C. 552(b) through (f)).
    (b) Public access to documents being considered at Commission 
meetings may be obtained by access to the public files of the Commission 
or, where documents are not in said public files, shall be obtained in 
the manner set forth in subpart C of this part (Sec. Sec. 201.17 
through 201.21).
    (c) Unless otherwise provided by the public notices as described in 
Sec. 201.35 of this subpart, public observation of Commission meetings 
does not encompass public participation in the deliberations at such 
meetings.



Sec. 201.34  Definitions.

    For the purpose of this subpart:
    (a)(1) Except as hereinafter provided, the term meeting means the 
deliberations of at least the number of individual Commissioners 
required to take action on behalf of the Commission where such 
deliberations determine or result in the joint conduct or disposition of 
official Commission business.
    (2) The consideration by individual Commissioners of business which 
is circulated sequentially in writing (circulation by ``action jacket'') 
is not considered a meeting under paragraph (a)(1) of this section 
because circulation by action jacket does not determine or result in the 
joint conduct or disposition of Commission business until ratification 
thereof by formal vote of the Commissioners in a meeting as defined by 
paragraph (a)(1) of this section, although action proposed by action 
jacket may be taken before or after formal ratification thereof by vote 
at a Commission meeting.
    (3) Conference telephone calls among the Commissioners are 
considered meetings as defined by paragraph (a)(1) of this section if 
they involve the number of Commissioners requisite for Commission 
action.
    (4) Deliberations of a majority of the entire membership of the 
Commission with the sole purpose of determining whether or not to call a 
meeting at a date earlier than the requisite public notice period as 
specified in Sec. 201.35 of this subpart are not considered to 
constitute a meeting or portion of a meeting as defined by paragraph 
(a)(1) of this section.
    (5) Deliberations of a majority of the entire membership of the 
Commission

[[Page 44]]

with the sole purpose of determining whether or not to close a portion 
or portions of a meeting or series of meetings pursuant to Sec. 201.36 
of this subpart are not considered to constitute a meeting or portion of 
a meeting within the meaning of paragraph (a)(1) of this section.
    (6) Deliberations of a majority of the entire membership of the 
Commission with the sole purpose of determining whether or not to change 
the subject matter of a publicly announced meeting, or to change the 
determination of the Commission to open or close a meeting, or portion 
thereof, to the public, following a public notice, as permitted under 
Sec. 201.37(b) of this subpart, are not considered to constitute a 
meeting or portion of a meeting under paragraph (a)(1) of this section.
    (b) The terms Secretary and General Counsel mean the Secretary and 
General Counsel of the Commission and their respective designees within 
their respective offices.



Sec. 201.35  Notices to the public.

    (a) At least seven (7) days before each Commission meeting the 
Commission shall issue a public notice which:
    (1) States the time and place of the meeting;
    (2) Lists the subjects or agenda items to be discussed at the 
meeting;
    (3) States whether the meeting or portion thereof is to be open or 
closed to public observation; and
    (4) Gives the name and business phone number of the Secretary to the 
Commission.
    (b) When the Commission has voted to close any portion of any 
meeting in accordance with Sec. 201.36 of this subpart, the notice 
referred to in paragraph (a) of this section shall also include, or be 
amended to include, if already issued, (1) A list of the persons 
reasonably expected to be present at such closed portion or portions of 
the meeting, (2) A corresponding list of the affiliations of those 
persons reasonably expected to be present, (3) A written copy of the 
vote of each Commissioner on whether or not the portion or portions of 
the meeting or series of meetings should be closed to public 
observation, (4) A full, written explanation of the Commission's action 
in closing the portion or portions of the meeting or series of meetings, 
and (5) A copy of the certification of the General Counsel, called for 
by Sec. 201.39 of this subpart, that such portion or portions of the 
meeting or series of meetings were properly closed to the public by the 
Commission. When a vote to close a portion or portions of a meeting in 
accordance with Sec. 201.36 of this subpart or a vote to change the 
subject matter of a meeting or to change a determination to open or 
close a meeting, or portion thereof, to the public in accordance with 
Sec. 201.37(b) of this subpart fails for lack of a majority of the 
entire membership of the Commission, the vote shall also be published as 
part of the notice required by paragraph (a) of this section.
    (c)(1) The 7-day period for public notice provided for in paragraph 
(a) of this section shall not apply when a majority of the entire 
membership of the Commission determines by recorded vote that Commission 
business requires that a particular meeting be called with less than 7 
days' notice and that no earlier announcement of such meeting was 
possible.
    (2) When the Commission has voted in conformity with paragraph 
(c)(1) of this section to shorten the 7-day period for public notice 
provided for by paragraph (a) of this section with respect to a 
particular meeting, the Commission shall issue the public notice 
required by paragraph (a) of this section at the earliest practicable 
time.
    (3) When the Commission not only has voted in conformity with 
paragraph (c)(1) of this section to shorten the 7-day period for public 
notice provided for in paragraph (a) of this section with respect to a 
particular meeting, but also has voted to close a portion or portions of 
such meeting in accordance with Sec. 201.36 of this subpart, the public 
notice required by paragraph (c)(2) of this section shall also include, 
or be amended to include, if already issued, those items specified in 
paragraph (b) of this section.
    (d)(1) When the Commission has changed the time or place of a 
publicly announced meeting by acting under Sec. 201.37(a) of this 
subpart, the public notice required by paragraph (a) or (c)(2) of this 
section shall be amended to reflect such changed time or place.

[[Page 45]]

    (2) When the Commission has changed the subject matter of a meeting 
or its determination to open or close a meeting, or portion thereof, to 
the public following a public notice by acting under Sec. 201.37(b) of 
this subpart, the public notice required by paragraph (a) or (c)(2) of 
this section shall be amended to (i) Include a statement affirming that 
Commission business required the change in subject matter and that no 
earlier announcement of such change was possible and (ii) Indicate the 
change in subject matter and the vote of each Commissioner upon such 
change.
    (e)(1) The Secretary shall issue the public notices required by this 
section and such amendments thereto as are appropriate to the specific 
meeting to which they pertain.
    (2) The Secretary (i) Shall promptly post the public notices 
referred to in paragraph (e)(1) of this section on bulletin boards 
outside the Office of the Secretary to the Commission, (ii) Shall make 
copies thereof available to interested members of the public, including 
mailing copies thereof through a mailing list of those persons desiring 
to receive such notices and distributing copies to the press, whether of 
specialized or general readership, and (iii) Shall immediately submit 
said public notices to the Federal Register for publication.
    (3) The Office of the Secretary shall respond to all questions from 
the public concerning the agendas of Commission meetings. Persons 
desiring to receive copies of notices of Commission meetings should 
contact the Office of the Secretary and request to be placed on the 
mailing list.

[42 FR 11243, Feb. 28, 1977, as amended at 58 FR 64121, Dec. 6, 1993]



Sec. 201.36  Closing a portion or portions of a meeting or a series of 

meetings.

    (a) Every meeting of the Commission shall be open to public 
observation except when the Commission properly determines in the manner 
specified in paragraph (d) of this section that a portion or portions of 
a Commission meeting shall be closed to the public for the specific 
reasons enumerated in paragraph (b) of this section.
    (b) The Commission may close a portion or portions of a Commission 
meeting only when it determines that public disclosure of information to 
be discussed at such meeting is likely to:
    (1) Disclose matters that are
    (i) Specifically authorized under criteria established by Executive 
order to be kept secret in the interests of national defense or foreign 
policy and
    (ii) In fact properly classified pursuant to such Executive order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than the Freedom of Information Act), provided that such 
statute
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    (4) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (5) Involve accusing any person of a crime, or formally censuring 
any person;
    (6) Disclose information of a personal nature when disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory records compiled for law-enforcement 
purposes, or information which, if written, would be contained in such 
records, but only to the extent that the production of such records or 
information would: (i) Interfere with enforcement proceedings, (ii) 
deprive a person of a right to a fair trial or to an impartial 
adjudication, (iii) constitute an unwarranted invasion of personal 
privacy, or (iv) disclose the identity of a confidential source, and, in 
the case of a record compiled by a criminal law-enforcement authority in 
the course of a criminal investigation or by an agency conducting a 
lawful national-security intelligence investigation, confidential 
information furnished only by the confidential source;
    (8)(i) Disclose information the premature disclosure of which would, 
in

[[Page 46]]

those instances where the Commission regulates commodities, be likely to 
lead to significant financial speculation in such commodities;
    (ii) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed 
Commission action except
    (A) When the Commission has already disclosed to the public the 
content or nature of its proposed action or
    (B) when the Commission is required by law to make such disclosure 
on its own initiative prior to taking final Commission action on such 
proposal; or
    (9) Specifically concern:
    (i) The Commission's issuance of a subpoena,
    (ii) The Commission's participation in a civil action or proceeding, 
or
    (iii) The initiation, conduct, or disposition by the Commission of a 
particular case of formal Commission adjudication under 19 U.S.C. 1337 
pursuant to the procedures of 5 U.S.C. 554 or otherwise involving a 
determination on the record after opportunity for a hearing.
    (c)(1) When the Commission has determined that one or more of the 
specific reasons enumerated in paragraph (b) of this section for closing 
a portion or portions of a Commission meeting is applicable to the 
subject matter or matters to be discussed, the Commission shall consider 
whether or not the public interest requires that such portion or 
portions of the meeting be open to public observation.
    (2) In making the public-interest determination under paragraph 
(c)(1) of this section, the Commission shall consider whether public 
disclosure would (i) Interfere with the Commission's carrying out its 
statutory responsibilities, (ii) Conflict with the individual right of 
privacy under the Privacy Act of 1974 (5 U.S.C. 552a), or (iii) Place 
the Commission in violation of any other applicable provision of law, in 
addition to any other factors which it deems to be relevant to the 
particular meeting in question.
    (d)(1) Action by the Commission to close a portion or portions of a 
meeting for one or more of the specific reasons enumerated in paragraphs 
(b) (1) through (9) of this section shall be taken only when a majority 
of the entire membership of the Commission has voted to take such 
action.
    (2) A single recorded vote of the Commission shall be taken with 
respect to:
    (i) Each Commission meeting of which the Commission proposes to 
close a portion or portions to the public for one or more of the 
specific reasons enumerated in paragraphs (b) (1) through (9) of this 
section, or
    (ii) any information which the Commission proposes to withhold from 
the public for one or more of the specific reasons enumerated in 
paragraphs (b) (1) through (9) of this section. No proxy votes are 
permissible.
    (e)(1) Action by the Commission to close a series of meetings of 
which the Commission proposes to close a portion or portions to the 
public for one or more of the specific reasons enumerated in paragraphs 
(b) (1) through (9) of this section may be taken by a single recorded 
vote of the Commission to close such portion or portions of the series. 
No proxy votes are permissible.
    (2) A series of meetings may be closed pursuant to paragraph (e)(1) 
of this section so long as each meeting in such series: (i) Involves the 
same particular matters and (ii) is scheduled to be held no more than 30 
days after the initial meeting in such series.
    (f) When the Commission (i) Has voted to close a portion or portions 
of a meeting in accordance with paragraph (d) of this section or (ii) 
has voted to close a portion or portions of a series of meetings in 
accordance with paragraph (e) of this section, the public notices 
referred to in paragraph (a) or (c)(2) of Sec. 201.35 shall be issued 
or amended in accordance with paragraph (b) or (c)(3) of Sec. 201.35 at 
the earliest practicable time, but no later than one (1) working day 
following such vote.



Sec. 201.37  Changing the time, place, subject matter, or determination to 

open or close a meeting following a public notice.

    (a) The time or place of a Commission meeting may be changed 
following a public announcement required by Sec. 201.35 only if the 
Commission publicly announces such change or changes at the earliest 
practicable time by issuing

[[Page 47]]

an appropriate amendment to the public notice as required by Sec. 
201.35.
    (b) The subject matter or matters of a Commission meeting or the 
determination of the Commission to open or close a meeting, or portion 
of a meeting, to the public may be changed following a public 
announcement required by Sec. 201.35 only if:
    (i) A majority of the entire membership of the Commission determines 
by recorded vote that Commission business so requires and that no 
earlier announcement of the change was possible and
    (ii) The Commission publicly announces such change in subject matter 
or such change in the determination of the Commission to open or close a 
meeting, or a portion of a meeting, to the public and the vote of each 
Commissioner upon such change or changes in a subsequent amendment of 
the public notice required by Sec. 201.35.



Sec. 201.38  Requests by interested persons that the Commission close a 

portion of a Commission meeting.

    (a) Whenever any person whose interests may be directly affected by 
a portion of a Commission meeting requests that the Commission close 
such portion to the public for any of the specific reasons enumerated in 
paragraphs (b) (5), (6), or (7) of Sec. 201.36, the Commission, upon 
the request of any one of the Commissioners, shall take a vote in the 
manner specified in Sec. 201.36 of this subpart on whether or not to 
close such portion of the meeting.
    (b) When the Commission votes on a request to close a portion of a 
meeting under paragraph (a) of this section in the manner specified in 
Sec. 201.36(d), a public notice as required by paragraphs (a) and (b) 
of Sec. 201.35 shall be issued.



Sec. 201.39  General Counsel's certification of Commission action in closing a 

meeting or a series of meetings.

    Before a Commission meeting may be closed for the specific reasons 
enumerated in paragraphs (b) (1) through (9) of Sec. 201.36, the 
General Counsel
    (i) Shall, in the related public notice, certify that in his or her 
opinion the meeting may be closed to the public and
    (ii) Shall state each applicable exemptive provision of paragraphs 
(b) (1) through (9) of Sec. 201.36.



Sec. 201.40  Records-retention requirements.

    (a) The Secretary shall maintain a copy of the certification by the 
General Counsel required by Sec. 201.39 for each Commission meeting of 
which a portion or portions are closed to the public pursuant to a vote 
under Sec. 201.36(d).
    (b) The Secretary shall also maintain a copy of a statement from the 
presiding officer of each Commission meeting or portion thereof which 
was closed to the public for the specific reasons enumerated in 
paragraphs (b) (1) through (9) of Sec. 201.36(b) setting forth (i) The 
time and place of the closed meeting, or portion thereof, and (ii) A 
list of the persons present thereat.
    (c) The Secretary shall also maintain a complete transcript or 
electronic recording of the proceedings of each Commission meeting or 
portion of a meeting, whether open to public observation or closed to 
the public. The Secretary shall also maintain a complete transcript or 
electronic recording of all deliberations conducted under paragraphs (a) 
(4), (5), and (6) of Sec. 201.34 of this subpart.
    (d) Where portions of a Commission meeting are closed for the 
reasons contained in paragraphs (b) (8)(A) or (9) of Sec. 201.36, the 
Commission preserves the option to maintain detailed minutes of such 
portions. Such detailed minutes shall fully and clearly describe all 
matters discussed and shall provide a full and accurate summary of any 
actions taken, and the reasons therefor, including a description of each 
of the views expressed on any item and the record of any rollcall vote 
(reflecting the vote of each member on the question). All documents 
considered in connection with any action shall be identified in such 
minutes.
    (e) The retention period for the records required by paragraphs (a), 
(b), (c), and (d) of this section shall be for a period of at least two 
(2) years after the particular Commission meeting, or until one (1) year 
after the conclusion of any Commission proceeding with respect to which 
the meeting or portion

[[Page 48]]

thereof was held, whichever occurs later.
    (f) The requirements of paragraphs (c) and (d) of this section shall 
not affect or supplant the existing duty of the Secretary to maintain 
permanent minutes of each Commission meeting. The Secretary shall also 
maintain permanent minutes of all deliberations conducted under 
paragraphs (a) (4), (5), and (6) of Sec. 201.34 of this subpart.



Sec. 201.41  Public inspection and copying of records; applicable fees.

    (a) The Secretary shall promptly make available to interested 
members of the public the transcript or electronic recording of the 
discussion of any item on the agenda of a Commission meeting or of any 
item of the testimony of any witness received at the meeting, except for 
such item or items of such discussion or testimony as the Secretary 
determines to contain information which may be withheld for reasons 
specified in paragraphs (b) (1) through (9) of Sec. 201.36. The 
determination of the Secretary shall be in conformity with a prior vote 
of the Commission under Sec. 201.36(d) to close a portion or portions 
of a meeting.
    (b) Public inspection of electronic recordings, transcripts, or 
minutes of Commission meetings shall take place at the United States 
International Trade Commission, 500 E Street SW., Washington, DC 20436. 
A room is designated by the Office of the Secretary and tape recorders 
with earphones are provided by the Commission for public-inspection 
purposes when proceedings are recorded on tape.
    (c)(1) The Secretary shall provide any person with copies of 
transcripts, minutes of Commission meetings, or transcriptions of 
electronic recordings of Commission meetings, which disclose the 
identity of each speaker, at the actual cost of transcription or 
duplication.
    (2) The Secretary shall not include items of discussion or testimony 
determined by the Secretary to contain information which may be withheld 
from the public for the reasons specified in paragraphs (b) (1) through 
(9) of Sec. 201.36 in the copies furnished to the public in accordance 
with paragraph (c)(1) of this section. The determination of the 
Secretary shall be in conformity with a prior vote of the Commission 
under Sec. 201.36(d) to close a portion or portions of a meeting.



                 Subpart F_National Security Information

    Authority: Sec. 335, 72 Stat. 680, sec. 401, 76 Stat. 902; 19 U.S.C. 
1335, 1802; E.O. 12356.

    Source: 48 FR 5898, Feb. 9, 1983, unless otherwise noted.



Sec. 201.42  Purpose and scope.

    The following regulation supplements Executive Order 12356, National 
Security Information, April 2, 1982, as it applies to the Commission.



Sec. 201.43  Program.

    The Director of Administration is designated as the official of the 
Commission who is responsible for implementation and oversight of 
information security programs and procedures, including ensuring 
conformity with the provisions of Executive Order No. 12356. He shall 
chair a committee, composed of himself and representatives of the 
offices of the Secretary, General Counsel, Executive Liaison and Special 
Adviser for Trade Agreements, and Operations, that will act on all 
suggestions and complaints with respect to the Commission's 
administration of the program. All questions, suggestions, and 
complaints regarding all elements of the information security program 
shall be directed to the Director of Administration.



Sec. 201.44  Procedures.

    (a) Mandatory declassification review. (1) Requests for 
declassification and release of national security information in the 
custody of the Commission shall be directed to the Secretary. Requests 
must reasonably describe the information that is desired to be 
declassified. All requests for declassification submitted pursuant to 
the Freedom of Information Act shall be processed in accordance with the 
provisions of that act and the applicable regulations of the Commission 
(19 CFR 201.17 through 201.21).
    (2) Because the Commission does not have original classification 
authority

[[Page 49]]

and national security information in its custody has been classified by 
another Federal agency, the Secretary shall refer all requests for 
mandatory declassification review of classified information to the 
originating Federal agency along with his recommendations. Following 
consultation with the originating agency, the Secretary will notify the 
requestor of the referral.
    (b) Safeguarding. All classified materials shall be delivered to the 
addressee or his designee immediately upon receipt at the Commission. In 
the event that the addressee or his designee is not available to receive 
the materials, they shall be delivered to the Secretary and secured, 
unopened, in a combination safe located in his office until the 
addressee or his designee is available. Under no circumstances shall 
classified materials that cannot be delivered to the addressee or his 
designee be stored other than in a GSA approved safe. Access to 
classified materials at the Commission shall be limited to officers and 
employees of the Commission on the basis of a favorable determination of 
trustworthiness on the basis of appropriate personnel security 
investigations and a need for access in the performance of official 
duties.
    (c) Reproduction. ``Top Secret'' documents may not be reproduced 
without the consent of the originating agency unless otherwise marked by 
that agency. Documents that have been classified ``Secret'' or 
``Confidential'' with special dissemination orders may not be reproduced 
without the permission of the Executive Liaison and Special Adviser for 
Trade Agreements, and are subject to any limitations imposed by the 
originator. Reproduced copies shall be subject to the same controls as 
the original document. The Executive Liaison and Special Adviser for 
Trade Agreements shall establish a system of recording the number and 
distribution of copies reproduced from the original documents. 
Reproduction for the purposes of mandatory review shall not be 
restricted.
    (d) Storage. All classified material shall be stored in GSA-approved 
combination safes located at the Commission. The combinations shall be 
changed as required by section 2001.43(b) of Information Security 
Oversight Office Directive No. 1. The combinations shall be known only 
by those employees possessing an appropriate security clearance who have 
need for access in the performance of official duties.
    (e) Employee education. The Director of Administration shall 
establish for all employees who have been granted a security clearance 
an information security education program that will advise them of the 
handling, reproduction, and storage procedures for these materials. The 
education program will also enable employees to familiarize themselves 
with the Order and applicable directives of the Information Security 
Oversight Office. New employees will be instructed in these procedures 
as they enter employment with the Commission.
    (f) Agency terminology. The use of the terms ``Top Secret'', 
``Secret'', and ``Confidential'' shall be limited to material classified 
for national security purposes.



 Subpart G_Enforcement of Nondiscrimination on the Basis of Handicap in 

    Programs or Activities Conducted by the U.S. International Trade 

                               Commission

    Authority: 29 U.S.C. 794.

    Source: 51 FR 4575, 4579, Feb. 5, 1986, unless otherwise noted.



Sec. 201.101  Purpose.

    This part effectuates section 119 of the Rehabilitation, 
Comprehensive Services, and Developmental Disabilities Amendments of 
1978, which amended section 504 of the Rehabilitation Act of 1973 to 
prohibit discrimination on the basis of handicap in programs or 
activities conducted by Executive agencies or the United States Postal 
Service.



Sec. 201.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 201.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil

[[Page 50]]

Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addition and 
alcholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Qualified handicapped person means--
    (1) With respect to any agency program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (2) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity.
    (3) Qualified handicapped person is defined for purposes of 
employment in 29

[[Page 51]]

CFR 1613.702(f), which is made applicable to this part by Sec. 201.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.

[51 FR 4575, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. Sec. 201.104-201.109  [Reserved]



Sec. 201.110  Self-evaluation.

    (a) The agency shall, by April 9, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspections:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 201.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Sec. Sec. 201.112-201.129  [Reserved]



Sec. 201.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.

[[Page 52]]

    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 201.131-201.139  [Reserved]



Sec. 201.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements, and procedures 
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Sec. Sec. 201.141-201.148  [Reserved]



Sec. 201.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 201.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 201.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons; or
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 201.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that

[[Page 53]]

handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
handicapped persons. The agency is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with this section. The agency, in making 
alterations to existing buildings, shall meet accessibility requirements 
to the extent compelled by the Architectural Barriers Act of 1968, as 
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In 
choosing among available methods for meeting the requirements of this 
section, the agency shall give priority to those methods that offer 
programs and activities to qualified handicapped persons in the most 
integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by June 6, 1986, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by April 7, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by October 7, 1986, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.

[51 FR 4575, 4579, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. 201.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 
CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 201.152-201.159  [Reserved]



Sec. 201.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices

[[Page 54]]

for deaf persons (TDD's) or equally effective telecommunication systems 
shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 201.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 201.161-201.169  [Reserved]



Sec. 201.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director, Office of Equal Employment Opportunity, shall be 
responsible for coordinating implementation of this section. Complaints 
may be sent to the Director, Office of Equal Employment Opportunity, 
United States International Trade Commission, 500 E Street SW., 
Washington, DC 20436.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found;
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 201.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.

[[Page 55]]

    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[51 FR 4575, 4579, Feb. 5, 1986, as amended at 51 FR 4576, Feb. 5, 1986; 
68 FR 32975, June 3, 2003]



Sec. Sec. 201.171-201.999  [Reserved]



                        Subpart H_Debt Collection

    Authority: 19 U.S.C. 1335; 5 U.S.C. 5514(b)(1); 31 U.S.C. 3716(b); 
31 U.S.C. 3720A(b)(4); 31 CFR chapter IX; 26 CFR 301.6402-6(b).

    Source: 62 FR 38019, July 16, 1997, unless otherwise noted.



Sec. 201.201  Definitions.

    Except where the context clearly indicates otherwise or where the 
term is defined elsewhere in this section, the following definitions 
shall apply to this subpart.
    (a) Agency means a department, agency, court, court administrative 
office, or instrumentality in the executive, judicial, or legislative 
branch of Government, including government corporations.
    (b) Certification means a written statement received by a paying 
agency from a creditor agency that requests the paying agency to offset 
the salary of an employee and specifies that required procedural 
protections have been afforded the employee.
    (c) Chairman means the Chairman of the Commission.
    (d) Compromise means the settlement or forgiveness of a debt.
    (e) Creditor agency means an agency of the Federal government to 
which the debt is owed.
    (f) Director means the Director, Office of Finance of the Commission 
or an official designated to act on the Director's behalf.
    (g) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, and, in the case of an 
employee not entitled to basic pay, other authorized pay, remaining for 
each pay period after the deduction of any amount required by law to be 
withheld. The Commission shall allow the following deductions in 
determining the amount of disposable pay that is subject to salary 
offset:
    (1) Federal employment taxes;
    (2) Amounts mandatorily withheld for the United States Soldiers' and 
Airmen's Home;
    (3) Fines and forfeiture ordered by a court-martial or by a 
commanding officer;
    (4) Amounts deducted for Medicare;
    (5) Federal, state, or local income taxes to the extent authorized 
or required by law, but no greater than would be the case if the 
employee claimed all dependents to which he or she is entitled and such 
additional amounts for which the employee presents evidence of a tax 
obligation supporting the additional withholding;
    (6) Health insurance premiums;
    (7) Normal retirement contributions, including employee 
contributions to the Thrift Savings Plan;
    (8) Normal life insurance premiums (e.g., Serviceman's Group Life 
Insurance and ``Basic Life'' Federal Employee's Group Life Insurance 
premiums), not including amounts deducted for supplementary coverage.
    (h) Employee means a current employee of the Commission or other 
agency, including a current member of the Armed Forces or a Reserve of 
the Armed Forces of the United States.
    (i) Federal Claims Collection Standards (FCCS) means standards 
published at 31 CFR chapter IX.
    (j) Hearing official means an individual responsible for conducting 
any hearing with respect to the existence or amount of a debt claimed 
and for rendering a decision on the basis of such hearing. A hearing 
official may

[[Page 56]]

not be under the supervision or control of the Chairman when the 
Commission is the creditor agency but may be an administrative law 
judge.
    (k) Notice of Intent to Offset or Notice of Intent means a written 
notice from a creditor agency to an employee, organization, or entity 
stating that the debtor is indebted to the creditor agency and apprising 
the debtor of certain procedural rights.
    (l) Notice of Salary Offset means a written notice from the paying 
agency to an employee after a certification has been issued by a 
creditor agency, informing the employee that salary offset will begin at 
the next officially established pay interval.
    (m) Office of Finance means the Office of Finance of the Commission.
    (n) Paying agency means the agency of the Federal government that 
employs the individual who owes a debt to an agency of the Federal 
government. In some cases, the Commission may be both the creditor 
agency and the paying agency.

[62 FR 38019, July 16, 1997, as amended at 68 FR 32976, June 3, 2003]



Sec. 201.202  Purpose and scope of salary and administrative offset rules.

    (a) Purpose. The purpose of sections 201.201 through 201.207 is to 
implement 5 U.S.C. 5514, 31 U.S.C. 3716, and 31 U.S.C. 3720A which 
authorize the collection by salary offset, administrative offset, or tax 
refund offset of debts owed by persons, organizations, or entities to 
the Federal government. Generally, however, a debt may not be collected 
by such means if it has been outstanding for more than ten years after 
the agency's right to collect the debt first accrued. These proposed 
regulations are consistent with the Office of Personnel Management 
regulations on salary offset, codified at 5 CFR part 550, subpart K, and 
with regulations on administrative offset codified at 31 CFR part 901.
    (b) Scope. (1) Sections 201.201 through 201.207 establish agency 
procedures for the collection of certain debts owed the Government.
    (2) Sections 201.201 through 201.207 apply to collections by the 
Commission from:
    (i) Federal employees who are indebted to the Commission;
    (ii) Employees of the Commission who are indebted to other agencies; 
and
    (iii) Other persons, organizations, or entities that are indebted to 
the Commission.
    (3) Sections 201.201 through 201.207 do not apply:
    (i) To debts or claims arising under the Internal Revenue Code of 
1986 (26 U.S.C. et seq.), the Social Security Act (42 U.S.C. 301 et 
seq.), or the tariff laws of the United States;
    (ii) To a situation to which the Contract Disputes Act (41 U.S.C. 
601 et seq.) applies; or
    (iii) In any case where collection of a debt is explicitly provided 
for or prohibited by another statute (e.g., travel advances in 5 U.S.C. 
4108).
    (4) Nothing in Sections 201.201 through 201.207 precludes the 
compromise, suspension, or termination of collection actions where 
appropriate under the standards implementing the Federal Claims 
Collection Act (31 U.S.C. 3711 et seq.), namely, 31 CFR chapter IX.

[62 FR 38019, July 16, 1997, as amended at 68 FR 32976, June 3, 2003]



Sec. 201.203  Delegation of authority.

    Authority to conduct the following activities is hereby delegated to 
the Director:
    (a) Initiate and effectuate the administrative collection process;
    (b) Accept or reject compromise offers and suspend or terminate 
collection actions where the claim does not exceed $100,000 or such 
higher amount as the Chairman may from time to time prescribe, exclusive 
of interest, administrative costs, and penalties as provided herein, as 
set forth in 31 U.S.C. 3711(a)(2);
    (c) Report to consumer reporting agencies certain data pertaining to 
delinquent debts;
    (d) Use offset procedures to effectuate collection; and
    (e) Take any other action necessary to facilitate and augment 
collection in accordance with the policies contained herein and as 
otherwise provided by law.

[[Page 57]]



Sec. 201.204  Salary offset.

    (a) Notice requirements before offset where the Commission is the 
creditor agency. Deductions under the authority of 5 U.S.C. 5514 will 
not be made unless the Commission provides the employee with a written 
Notice of Intent to Offset a minimum of 30 calendar days before salary 
offset is initiated. The Notice of Intent shall state:
    (1) That the Director has reviewed the records relating to the claim 
and has determined that a debt is owed;
    (2) The Director's intention to collect the debt by means of 
deduction from the employee's current disposable pay account until the 
debt and all accumulated interest is paid in full;
    (3) The amount of the debt and the facts giving rise to the debt;
    (4) A repayment schedule that includes the amount, frequency, 
proposed beginning date, and duration of the intended deductions;
    (5) The opportunity for the employee to propose an alternative 
written schedule for the voluntary repayment of the debt, in lieu of 
offset, on terms acceptable to the Commission. The employee shall 
include a justification in the request for the alternative schedule. The 
schedule shall be agreed to and signed by both the employee and the 
Director;
    (6) An explanation of the Commission's policy concerning interest, 
penalties, and administrative costs, including a statement that such 
assessments must be made unless excused in accordance with the Federal 
Claims Collection Standards;
    (7) The employee's right to inspect and copy all records of the 
Commission not exempt from disclosure pertaining to the debt claimed or 
to receive copies of such records if the debtor is unable personally to 
inspect the records, due to geographical or other constraints;
    (8) The name, address, and telephone number of the Director to whom 
requests for access to records relating to the debt must be sent;
    (9) The employee's right to a hearing conducted by an impartial 
hearing official (an administrative law judge or other hearing official 
not under the supervision or control of the Chairman) with respect to 
the existence and amount of the debt claimed or the repayment schedule 
(i.e., the percentage of disposable pay to be deducted each pay period), 
so long as a request is filed by the employee as prescribed in paragraph 
(c)(1) of this section;
    (10) The name, address, and telephone number of the Director to whom 
a proposal for voluntary repayment must be sent and who may be contacted 
concerning procedures for requesting a hearing;
    (11) The method and deadline for requesting a hearing;
    (12) That the timely filing of a request for a hearing on or before 
the 15th calendar day following receipt of the Notice of Intent will 
stay the commencement of collection proceedings;
    (13) The name and address of the office to which the request should 
be sent;
    (14) That the Commission will initiate certification procedures to 
implement a salary offset not less than 30 days from the date of receipt 
of the Notice of Intent to Offset, unless the employee files a timely 
request for a hearing;
    (15) That a final decision on whether a hearing will be held (if one 
is requested) will be issued at the earliest practical date;
    (16) That any knowingly false or frivolous statements, 
representations, or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under 5 U.S.C. Chapter 75, 5 
CFR part 752, or any other applicable statutes or regulations;
    (ii) Penalties under the False Claims Act, 31 U.S.C. 3729-3733, or 
under any other applicable statutory authority; or
    (iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or 
under any other applicable statutory authority;
    (17) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made;
    (18) That unless there are applicable contractual or statutory 
provisions to the contrary, amounts paid on or deducted from debts that 
are later waived or found not to be owed to the United States will be 
promptly refunded to the employee; and

[[Page 58]]

    (19) That proceedings with respect to such debt are governed by 5 
U.S.C. 5514.
    (b) Review of Commission records related to the debt. (1) An 
employee who desires to inspect or copy Commission records related to a 
debt owed to the Commission must send a letter to the Director as 
designated in the Notice of Intent requesting access to the relevant 
records. The letter must be received in the office of the Director 
within 15 calendar days after the employee's receipt of the Notice of 
Intent.
    (2) In response to a timely request submitted by the debtor, the 
Director will notify the employee of the location and time when the 
employee may inspect and copy records related to the debt.
    (3) If the employee is unable personally to inspect the records, due 
to geographical or other constraints, the Director shall arrange to send 
copies of such records to the employee.
    (c) Opportunity for a hearing where the Commission is the creditor 
agency--(1) Request for a hearing. (i) An employee who requests a 
hearing on the existence or amount of the debt held by the Commission or 
on the offset schedule proposed by the Commission must send such request 
to the Director. The request for a hearing must be received by the 
Director on or before the 15th calendar day following receipt by the 
employee of the notice.
    (ii) The employee must specify whether an oral hearing is requested. 
If an oral hearing is desired, the request should explain why the matter 
cannot be resolved by review of the documentary evidence alone. The 
request must be signed by the employee and must fully identify and 
explain with reasonable specificity all the facts, evidence, and 
witnesses, if any, that the employee believes support his or her 
position.
    (2) Failure to timely submit. If the employee files a request for 
hearing after the expiration of the 15-calendar-day period provided for 
in paragraph (c)(1) of this section, the Director may accept the request 
if the employee can show that the delay was the result of circumstances 
beyond his or her control or that he or she failed to receive actual 
notice of the filing deadline.
    (3) Obtaining the services of a hearing official. (i) When the 
debtor is not a Commission employee and the Commission cannot provide a 
prompt and appropriate hearing before an administrative law judge or 
other hearing official, the Commission may request a hearing official 
from an agent of the paying agency, as designated in 5 CFR part 581, 
appendix A, or as otherwise designated by the paying agency.
    (ii) When the debtor is a Commission employee, the Commission may 
contact any agent of another agency, as designated in 5 CFR part 581, 
appendix A, or as otherwise designated by the agency, to request a 
hearing official.
    (4) Procedure--(i) Notice. After the employee requests a hearing, 
the hearing official shall notify the employee of the form of the 
hearing to be provided. If the hearing will be oral, the notice shall 
set forth the date, time, and location of the hearing, which must occur 
no more than 30 calendar days after the request is received, unless the 
employee requests that the hearing be delayed. If the hearing will be 
conducted by examination of documents, the employee shall be notified 
within 30 calendar days that he or she should submit evidence and 
arguments in writing to the hearing official.
    (ii) Oral hearing. An employee who requests an oral hearing shall be 
provided an oral hearing if the hearing official determines that the 
matter cannot be resolved by review of documentary evidence alone (e.g., 
when an issue of credibility or veracity is involved). The hearing need 
not be an adversarial adjudication, and rules of evidence need not 
apply. Witnesses who testify in oral hearings shall do so under oath or 
affirmation. Oral hearings may take the form of, but are not limited to:
    (A) Informal conferences with the hearing official in which the 
employee and agency representative are given full opportunity to present 
evidence, witnesses, and argument;
    (B) Informal meetings in which the hearing examiner interviews the 
employee; or
    (C) Formal written submissions followed by an opportunity for oral 
presentation.
    (iii) Documentary hearing. If the hearing official determines that 
an oral

[[Page 59]]

hearing is not necessary, he or she shall make the determination based 
upon a review of the written record.
    (iv) Record. The hearing official shall maintain a summary record of 
any hearing conducted under this section.
    (5) Date of decision. The hearing official shall issue a written 
opinion stating his or her decision, based upon all evidence and 
information developed at the hearing, as soon as practicable after the 
hearing, but not later than 60 calendar days after the date on which the 
request was received by the Commission, unless the hearing was delayed 
at the request of the employee, in which case the 60 day decision period 
shall be extended by the number of days by which the hearing was 
postponed. The decision of the hearing official shall be final.
    (6) Content of decision. The written decision shall include:
    (i) A summary of the facts concerning the origin, nature, and amount 
of the debt;
    (ii) The hearing official's findings, analysis, and conclusions; and
    (iii) The terms of any repayment schedules, if applicable.
    (7) Failure to appear. If, in the absence of good cause shown (e.g., 
illness), the employee or the representative of the Commission fails to 
appear, the hearing official shall proceed with the hearing as 
scheduled, and make his or her determination based upon the oral 
testimony presented and the documentation submitted by both parties. At 
the request of both parties, the hearing official may schedule a new 
hearing date. Both parties shall be given reasonable notice of the time 
and place of this new hearing.
    (d) Certification where the Commission is the creditor agency. (1) 
The Director shall issue a certification in all cases where:
    (i) The hearing official determines that a debt exists; or
    (ii) The employee admits the existence and amount of the debt, for 
example, by failing to request a hearing.
    (2) The certification must be in writing and must state:
    (i) That the employee owes the debt;
    (ii) The amount and basis of the debt;
    (iii) The date the Government's right to collect the debt first 
accrued;
    (iv) That the Commission's regulations have been approved by OPM 
pursuant to 5 CFR part 550, subpart K;
    (v) If the collection is to be made by lump-sum payment, the amount 
and date such payment will be collected;
    (vi) If the collection is to be made in installments, the number of 
installments to be collected, the amount of each installment, and the 
date of the first installment, if a date other than the next officially 
established pay period; and
    (vii) The date the employee was notified of the debt, the action(s) 
taken pursuant to the Commission's regulations, and the dates such 
actions were taken.
    (e) Voluntary repayment agreements as alternative to salary offset 
where the Commission is the creditor agency. (1) In response to a Notice 
of Intent, an employee may propose to repay the debt in accordance with 
scheduled installment payments. Any employee who wishes to repay a debt 
without salary offset shall submit in writing a proposed agreement to 
repay the debt. The proposal shall set forth a proposed repayment 
schedule. Any proposal under paragraph (e) of this section must be 
received by the Director within 15 calendar days after receipt of the 
Notice of Intent.
    (2) In response to a timely proposal by the debtor, the Director 
shall notify the employee whether the employee's proposed written 
agreement for repayment is acceptable. It is within the discretion of 
the Director to accept, reject, or propose to the debtor a modification 
of the proposed repayment agreement.
    (3) If the Director decides that the proposed repayment agreement is 
unacceptable, the employee shall have 15 calendar days from the date he 
or she received notice of the decision in which to file a request for a 
hearing.
    (4) If the Director decides that the proposed repayment agreement is 
acceptable or the debtor agrees to a modification proposed by the 
Director, the agreement shall be put in writing and signed by both the 
employee and the Director.
    (f) Special review where the Commission is the creditor agency. (1) 
An employee subject to salary offset or a voluntary

[[Page 60]]

repayment agreement may, at any time, request a special review by the 
Director of the amount of the salary offset or voluntary payment, based 
on materially changed circumstances, including, but not limited to, 
catastrophic illness, divorce, death, or disability.
    (2) In determining whether, as a result of materially changed 
circumstances, an offset would prevent the employee from meeting 
essential subsistence expenses (costs incurred for food, housing, 
clothing, transportation, and medical care), the employee shall submit 
to the Director a detailed statement and supporting documents for the 
employee, his or her spouse, and dependents indicating:
    (i) Income from all sources;
    (ii) Assets;
    (iii) Liabilities;
    (iv) Number of dependents;
    (v) Expenses for food, housing, clothing, and transportation;
    (vi) Medical expenses; and
    (vii) Exceptional expenses, if any.
    (3) If the employee requests a special review under paragraph (f) of 
this section, the employee shall file an alternative proposed offset or 
payment schedule and a statement, with supporting documents, showing why 
the current salary offset or payments result in extreme financial 
hardship to the employee.
    (4) The Director shall evaluate the statement and supporting 
documents and determine whether the original offset or repayment 
schedule imposes extreme financial hardship on the employee. The 
Director shall notify the employee in writing within 30 calendar days of 
such determination, including, if appropriate, his or her acceptance of 
a revised offset or payment schedule.
    (5) If the special review results in a revised offset or repayment 
schedule, the Director shall provide a new certification to the paying 
agency.
    (g) Notice of salary offset where the Commission is the paying 
agency. (1) Upon issuance of a proper certification by the Director (for 
debts owed to the Commission) or upon receipt of a proper certification 
from another creditor agency, the Office of Finance shall send the 
employee a written notice of salary offset. Such notice shall advise the 
employee:
    (i) Of the certification that has been issued by the Director or 
received from another creditor agency;
    (ii) Of the amount of the debt and of the deductions to be made; and
    (iii) Of the initiation of salary offset at the next officially 
established pay interval or as otherwise provided for in the 
certification.
    (2) The Office of Finance shall provide a copy of the notice to the 
creditor agency and advise such agency of the dollar amount to be offset 
and the pay period when the offset will begin.
    (h) Procedures for salary offset where the Commission is the paying 
agency--(1) Generally. (i) The Director shall coordinate salary 
deductions under this section.
    (ii) The Director shall determine the amount of an employee's 
disposable pay and the amount of the salary offset subject to the 
requirements in this paragraph.
    (iii) Deductions shall begin the pay period following the issuance 
of the certification by the Director or the receipt by the Office of 
Finance of the certification from another agency or as soon thereafter 
as possible.
    (2) Types of collection--(i) Lump-sum payment. If the amount of the 
debt is equal to or less than 15 percent of the employee's disposable 
pay, such debt ordinarily will be collected in one lump-sum payment.
    (ii) Installment deductions. Installment deductions will be made 
over a period not greater than the anticipated period of employment. The 
size and frequency of installment deductions will bear a reasonable 
relation to the size of the debt and the employee's ability to pay. 
However, the amount deducted for any pay period will not exceed 15 
percent of the disposable pay from which the deduction is made unless 
the employee has agreed in writing to the deduction of a greater amount. 
The installment payment should normally be sufficient in size and 
frequency to liquidate the debt in no more than three years. Installment 
payments of less than $50 should be accepted only in the most unusual 
circumstances.
    (iii) Lump-sum deductions from final check. In order to liquidate a 
debt, a

[[Page 61]]

lump-sum deduction exceeding 15 percent of disposable pay may be made 
pursuant to 31 U.S.C. 3716 and 5 U.S.C. 5514(a)(1) from any final salary 
payment due a former employee, whether the former employee was separated 
voluntarily or involuntarily.
    (iv) Lump-sum deductions from other sources. Whenever an employee 
subject to salary offset is separated from the Commission, and the 
balance of the debt cannot be liquidated by offset of the final salary 
check, the Commission, pursuant to 31 U.S.C. 3716, may offset any later 
payments of any kind to the former employee to collect the balance of 
the debt.
    (3) Multiple debts. Where two or more creditor agencies are seeking 
salary offset, or where two or more debts are owed to a single creditor 
agency, the Office of Finance may, at its discretion, determine whether 
one or more debts should be offset simultaneously within the 15 percent 
limitation.
    (4) Order of precedence for recovery of debts owed the Government. 
(i) For Commission employees, subject to paragraph (h)(3) of this 
section and (paragraph (h)(4)(ii) of this section, offsets to recover 
debts owed the United States Government shall be made from disposable 
pay in the following order of precedence:
    (A) Indebtedness due the Commission;
    (B) Indebtedness due other agencies.
    (ii) In the event that a debt to the Commission is certified while 
an employee is subject to salary offset to repay another agency, the 
Office of Finance may, at its discretion, determine whether the debt to 
the Commission should be repaid before the debt to the other agency, 
repaid simultaneously, or repaid after the debt to the other agency.
    (iii) A levy pursuant to the Internal Revenue Code of 1986 shall 
take precedence over other deductions under this section, as provided in 
5 U.S.C. 5514(d).
    (i) Coordinating salary offset with other agencies--(1) 
Responsibility of the Commission as the creditor agency. (i) The 
Director shall be responsible for:
    (A) Arranging for a hearing upon proper request by a Federal 
employee;
    (B) Preparing the Notice of Intent to Offset consistent with the 
requirements of paragraph (a) of this section;
    (C) Obtaining hearing officials from other agencies pursuant to 
paragraph (c)(3) of this section; and
    (D) Ensuring that each certification of debt is sent to a paying 
agency pursuant to paragraph (d)(2) of this section.
    (ii) Upon completion of the procedures established in paragraphs (a) 
through (f) of this section, the Director shall submit a certified debt 
claim and an installment agreement or other instruction on the payment 
schedule, if applicable, to the employee's paying agency.
    (iii) If the employee is in the process of separating from 
Government employment, the Commission shall submit its debt claim to the 
employee's paying agency for collection by lump-sum deduction from the 
employee's final check. The paying agency shall certify the total amount 
of its collection and furnish a copy of the certification to the 
Commission and to the employee.
    (iv) If the employee is already separated and all payments due from 
his or her former paying agency have been paid, the Commission may, 
unless otherwise prohibited, request that money due and payable to the 
employee from the Federal Government be administratively offset to 
collect the debt.
    (v) When an employee transfers to another paying agency, the 
Commission shall not repeat the procedures described in paragraphs (a) 
through (f) of this section in order to resume collecting the debt. 
Instead, the Commission shall review the debt upon receiving the former 
paying agency's notice of the employee's transfer and shall ensure that 
collection is resumed by the new paying agency.
    (2) Responsibility of the Commission as the paying agency--(i) 
Complete claim. When the Commission receives a certified claim from a 
creditor agency, the employee shall be given written notice of the 
certification, the date salary offset will begin, and the amount of the 
periodic deductions. Deductions shall be scheduled to begin at the next 
officially established pay interval or as

[[Page 62]]

otherwise provided for in the certification.
    (ii) Incomplete claim. When the Commission receives an incomplete 
certification of debt from a creditor agency, the Commission shall 
return the debt claim with notice that procedures under 5 U.S.C. 5514 
and 5 CFR 550.1104 must be followed and that a properly certified debt 
claim must be received before action will be taken to collect from the 
employee's current pay account.
    (iii) Review. The Commission is not authorized to review the merits 
of the creditor agency's determination with respect to the amount or 
validity of the debt certified by the creditor agency.
    (iv) Employees who transfer from one paying agency to another 
agency. If, after the creditor agency has submitted the debt claim to 
the Commission, the employee transfers to an agency outside the 
Commission before the debt is collected in full, the Commission must 
certify the total amount collected on the debt. One copy of the 
certification shall be furnished to the employee and one copy shall be 
sent to the creditor agency along with notice of the employee's 
transfer. If the Commission is aware that the employee is entitled to 
payments from the Civil Service Retirement and Disability Fund, or other 
similar payments, it must provide written notification to the agency 
responsible for making such payments that the debtor owes a debt 
(including the amount) and that the requirements set forth herein and in 
the Office of Personnel Management's regulation (5 CFR part 550) have 
been fully met.
    (j) Interest, Penalties, and Administrative Costs. Where the 
Commission is the creditor agency, it shall assess interest, penalties, 
and administrative costs pursuant to 31 U.S.C. 3717 and 31 CFR 901.9.
    (k) Refunds. (1) Where the Commission is the creditor agency, it 
shall promptly refund any amount deducted under the authority of 5 
U.S.C. 5514 when:
    (i) The debt is compromised or otherwise found not to be owing to 
the United States; or
    (ii) An administrative or judicial order directs the Commission to 
make a refund.
    (2) Unless required by law or contract, refunds under this paragraph 
(k) shall not bear interest.
    (l) Request from a creditor agency for the services of a hearing 
official. (1) The Commission may provide a hearing official upon request 
of the creditor agency when the debtor is employed by the Commission and 
the creditor agency cannot provide a prompt and appropriate hearing 
before a hearing official furnished pursuant to another lawful 
arrangement.
    (2) The Commission may provide a hearing official upon request of a 
creditor agency when the debtor works for the creditor agency and that 
agency cannot arrange for a hearing official.
    (3) The Director shall arrange for qualified personnel to serve as 
hearing officials.
    (4) Services rendered under this paragraph (l) shall be provided on 
a fully reimbursable basis pursuant to 31 U.S.C. 1535.
    (m) Non-waiver of rights by payments. A debtor's payment, whether 
voluntary or involuntary, of all or any portion of a debt being 
collected pursuant to this section shall not be construed as a waiver of 
any rights that the debtor may have under any statute, regulation, or 
contract except as otherwise provided by law or contract.
    (n) Exception to due process procedures. The procedures set forth in 
this section shall not apply to adjustments described in 5 U.S.C. 
5514(a)(3) and 5 CFR 550.1104(c).

[62 FR 38019, July 16, 1997, as amended at 68 FR 32976, June 3, 2003]



Sec. 201.205  Salary adjustments.

    Any negative adjustment to pay arising out of an employee's election 
of coverage, or a change in coverage, under a Federal benefits program 
requiring periodic deductions from pay shall not be considered 
collection of a ``debt'' for the purposes of this section if the amount 
to be recovered was accumulated over four pay periods or less. In such 
cases, the Commission need not comply with Sec. 201.204, but it

[[Page 63]]

will provide a clear and concise statement in the employee's earnings 
statement advising the employee of the previous overpayment at the time 
the adjustment is made.



Sec. 201.206  Administrative offset.

    (a) Collection. The Director may collect a claim pursuant to 31 
U.S.C. 3716 from a person, organization, or entity other than an agency 
of the United States Government by administrative offset of monies 
payable by the Government. Collection by administrative offset shall be 
undertaken where the claim is certain in amount, where offset is 
feasible and desirable and not otherwise prohibited, where the 
applicable statute of limitations has not expired, and where the offset 
is in the best interest of the United States.
    (b) Offset prior to completion of procedures. Prior to the 
completion of the procedures described in paragraph (c) of this section, 
the Commission may effect offset if:
    (1) Failure to offset would substantially prejudice the Commission's 
ability to collect the debt; and
    (2) The time before the payment is to be made does not reasonably 
permit completion of the procedures described in paragraph (c) of this 
section. Such prior offsetting shall be followed promptly by the 
completion of the procedures described in paragraph (c) of this section.
    (c) Debtor's rights. (1) Unless the procedures described in 
paragraph (b) of this section are used, prior to collecting any claim by 
administrative offset or referring such claim to another agency for 
collection through administrative offset, the Director shall provide the 
debtor with the following:
    (i) Written notification of the nature and amount of the claim, the 
intention of the Director to collect the claim through administrative 
offset, and a statement of the rights of the debtor under this 
paragraph;
    (ii) An opportunity to inspect and copy the records of the 
Commission not exempt from disclosure with respect to the claim;
    (iii) An opportunity to have the Commission's determination of 
indebtedness reviewed by the Director. Any request for review by the 
debtor shall be in writing and be submitted to the Commission within 30 
calendar days of the date of the notice of the offset. The Director may 
waive the time limit for requesting review for good cause shown by the 
debtor. The Commission shall provide the debtor with a reasonable 
opportunity for an oral hearing when:
    (A) An applicable statute authorizes or requires the Commission to 
consider waiver of the indebtedness involved, the debtor requests waiver 
of the indebtedness, and the waiver determination turns on an issue of 
credibility or veracity; or
    (B) The debtor requests reconsideration of the debt and the 
Commission determines that the question of the indebtedness cannot be 
resolved by review of the documentary evidence, for example, when the 
validity of the debt turns on an issue of credibility or veracity. 
Unless otherwise required by law, an oral hearing under this section is 
not required to be a formal evidentiary hearing, although the Commission 
shall document all significant matters discussed at the hearing. In 
those cases where an oral hearing is not required by this section, the 
Commission shall nevertheless accord the debtor a ``paper hearing,'' 
(i.e., the Commission will make its determination on the request for 
waiver or reconsideration based upon a review of the written record); 
and
    (iv) An opportunity to enter into a written agreement for the 
repayment of the amount of the claim at the discretion of the 
Commission.
    (2) If the procedures described in paragraph (b) of this section are 
employed, the procedures described in this paragraph shall be effected 
after offset.
    (d) Interest. Pursuant to 31 U.S.C. 3717 and 31 CFR 901.9, the 
Commission shall assess interest, penalties and administrative costs on 
debts owed to the United States. The Commission is authorized to assess 
interest and related charges on debts that are not subject to 31 U.S.C. 
3717 to the extent authorized under the common law or other applicable 
statutory authority.
    (e) Refunds. Amounts recovered by offset but later found not to be 
owed to the Government shall be promptly refunded.

[[Page 64]]

    (f) Requests for offset to other Federal agencies. The Director may 
request that a debt owed to the Commission be administratively offset 
against funds due and payable to a debtor by another Federal agency. In 
requesting administrative offset, the Commission, as creditor, will 
certify in writing to the Federal agency holding funds of the debtor:
    (1) That the debtor owes the debt;
    (2) The amount and basis of the debt; and
    (3) That the Commission has complied with the requirements of its 
own administrative offset regulations and the applicable provisions of 
31 CFR part 901 with respect to providing the debtor with due process.
    (g) Requests for offset from other Federal agencies. Any Federal 
agency may request that funds due and payable to its debtor by the 
Commission be administratively offset in order to collect a debt owed to 
such Federal agency by the debtor. The Commission shall initiate the 
requested offset only upon:
    (1) Receipt of written certification from the creditor agency:
    (i) That the debtor owes the debt;
    (ii) The amount and basis of the debt;
    (iii) That the agency has prescribed regulations for the exercise of 
administrative offset; and
    (iv) That the agency has complied with its own administrative offset 
regulations and with the applicable provisions of 31 CFR part 901, 
including providing any required hearing or review.
    (2) A determination by the Commission that collection by offset 
against funds payable by the Commission would be in the best interest of 
the United States as determined by the facts and circumstances of the 
particular case and that such offset would not otherwise be contrary to 
law.

[62 FR 38019, July 16, 1997, as amended at 68 FR 32976, June 3, 2003]



Sec. 201.207  Administrative offset against amounts payable from Civil Service 

Retirement and Disability Fund

    (a) Unless otherwise prohibited by law, the Commission may request 
that moneys which are due and payable to a debtor from the Civil Service 
Retirement and Disability Fund be administratively offset in reasonable 
amounts in order to collect in one full payment or a minimal number of 
payments debt owed to the Commission by the debtor. Such requests shall 
be made to the appropriate officials of the Office of Personnel 
Management in accordance with such regulations as may be prescribed by 
the Director of that Office.
    (b) When making a request for administrative offset under paragraph 
(a) of this section, the Commission shall include a written 
certification that:
    (1) The debtor owes the Commission a debt, including the amount of 
the debt;
    (2) The Commission has complied with the applicable statutes, 
regulations, and procedures of the Office of Personnel Management; and
    (3) The Commission has complied with the requirements of 31 CFR 
901.3, including any required hearing or review.
    (c) Once the Commission decides to request administrative offset 
under paragraph (a) of this section, it shall make the request as soon 
as practical after completion of the applicable procedures. This will 
satisfy any requirement that offset be initiated prior to expiration of 
the applicable statute of limitations. At such time as the debtor makes 
a claim for payments from the Fund, if at least a year has elapsed since 
the offset request was originally made, the debtor shall be permitted to 
offer a satisfactory repayment plan in lieu of offset upon establishing 
that changed financial circumstances would render the offset unjust.
    (d) If the Commission collects part or all of the debt by other 
means before deductions are made or completed pursuant to paragraph (a) 
of this section, the Commission shall act promptly to modify or 
terminate its request for offset under paragraph (a) of this section.

[62 FR 38019, July 16, 1997, as amended at 68 FR 32976, June 3, 2003]



Sec. 201.208  Tax refund offset.

    (a) Scope. The provisions of 26 U.S.C. 6402(d) and 31 U.S.C. 3720A 
authorize the Secretary of the Treasury to offset a delinquent debt owed 
to the United States Government from the tax refund due a taxpayer when 
other collection efforts have failed to recover the amount due.

[[Page 65]]

    (b) Definitions--(1) Debt. Debt means money owed by an individual, 
organization or entity from sources which include loans insured or 
guaranteed by the United States and all other amounts due the United 
States from fees, leases, services, overpayments, civil and criminal 
penalties, damages, interest, fines, administrative costs, and all other 
similar sources. A debt becomes eligible for tax refund offset 
procedures if:
    (i) It cannot currently be collected pursuant to the salary offset 
procedures of 5 U.S.C. 5514(a)(1);
    (ii) The debt is ineligible for administrative offset under 31 
U.S.C. 3716(a) by reason of 31 U.S.C. 3716(c)(2) or cannot currently be 
collected by administrative offset under 31 U.S.C. 3716(a); and
    (iii) The requirements of this section are otherwise satisfied.
    (2) Dispute. A dispute is a written statement supported by 
documentation or other evidence that all or part of an alleged debt is 
not past due or legally enforceable, that the amount is not the amount 
currently owed, that the outstanding debt has been satisfied, or, in the 
case of a debt reduced to judgment, that the judgment has been satisfied 
or stayed.
    (3) Notice. Notice means the information sent to the debtor pursuant 
to Sec. 201.208(d). The date of the notice is the date shown on the 
notice letter as its date of issuance.
    (4) Past due. All judgment debts are past due for purposes of this 
section. Such debts remain past due until paid in full.
    (c) The Commission may refer any past due, legally enforceable non-
judgment debt of an individual, organization or entity to Treasury for 
offset if the Commission's or the referring agency's rights of action 
accrued more than three months but less than ten years before the offset 
is made. Debts reduced to judgment may be referred at any time. Debts in 
amounts lower than $25.00 are not subject to referral.
    (d) The Commission will provide the debtor with written notice of 
its intent to offset before initiating the offset. Notice will be mailed 
to the debtor at the current address of the debtor, as determined from 
information obtained from the IRS pursuant to 26 U.S.C. 6103(m)(2), (4), 
(5) or from information regarding the debt maintained by the Commission. 
The notice sent to the debtor will state the amount of the debt and 
inform the debtor that:
    (1) The debt is past due;
    (2) The Commission intends to refer the debt to Treasury for offset 
from tax refunds that may be due to the taxpayer;
    (3) The Commission intends to provide information concerning the 
delinquent debt exceeding $100 to a consumer reporting bureau unless 
such debt has already been disclosed; and
    (4) The debtor has 65 calendar days from the date of notice in which 
to present evidence that all or part of the debt is not past due, that 
the amount is not the amount currently owed, that the outstanding debt 
has been satisfied, or, if a judgment debt, that the debt has been 
satisfied, or stayed, before the debt is reported to a consumer 
reporting agency, if applicable, and referred to Treasury for offset 
from tax refunds.
    (e) If the debtor neither pays the amount due nor presents evidence 
that the amount is not past due or is satisfied or stayed, the 
Commission will report the debt to a consumer reporting agency at the 
end of the notice period, if applicable, and refer the debt to Treasury 
for offset from the taxpayer's federal tax refund. The Commission shall 
certify to Treasury that reasonable efforts have been made by the 
Commission to obtain payment of such debt.
    (f) A debtor may request a review by the Commission if the debtor 
believes that all or part of the debt is not past due or is not legally 
enforceable, or, in the case of a judgment debt, that the debt has been 
stayed or the amount satisfied, as follows:
    (1) The debtor must send a written request for review to the 
Director at the address provided in the notice.
    (2) The request must state the amount disputed and the reasons why 
the debtor believes that the debt is not past due, is not legally 
enforceable, has been satisfied, or, if a judgment debt, has been 
satisfied or stayed.
    (3) The request must include any documents that the debtor wishes to 
be

[[Page 66]]

considered or state that additional information will be submitted within 
the time permitted.
    (4) If the debtor wishes to inspect records establishing the nature 
and amount of the debt, the debtor must make a written request to the 
Director for an opportunity for such an inspection. The office holding 
the relevant records not exempt from disclosure shall make them 
available for inspection during normal business hours within one week 
from the date of receipt of the request.
    (5) The request for review and any additional information submitted 
pursuant to the request must be received by the Director at the address 
stated in the notice within 65 calendar days of the date of issuance of 
the notice.
    (6) The Commission will review disputes and shall consider its 
records and any documentation and arguments submitted by the debtor. The 
Commission's decision to refer to Treasury any disputed portion of the 
debt shall be made by the Chairman. The Commission shall send a written 
notice of its decision to the debtor. There is no administrative appeal 
of this decision.
    (7) If the evidence presented by the debtor is considered by a non-
Commission agent or other entities or persons acting on the Commission's 
behalf, the debtor will be accorded at least 30 calendar days from the 
date the agent or other entity or person determines that all or part of 
the debt is past-due and legally enforceable to request review by an 
officer or employee of the Commission of any unresolved dispute.
    (8) Any debt that previously has been reviewed pursuant to this 
section or any other section of this subpart, or that has been reduced 
to a judgment, may not be disputed except on the grounds of payments 
made or events occurring subsequent to the previous review or judgment.
    (g) The Commission will notify Treasury of any change in the amount 
due promptly after receipt of payments or notice of other reductions.
    (h) In the event that more than one debt is owed, the tax refund 
offset procedure will be applied in the order in which the debts became 
past due.

[[Page 67]]



               SUBCHAPTER B_NONADJUDICATIVE INVESTIGATIONS



PART 202_INVESTIGATIONS OF COSTS OF PRODUCTION--Table of Contents




Sec.
202.1 Applicability of part.
202.2 Applications.
202.3 Preliminary inquiry.
202.4 Public hearing.
202.5 Type of information to be developed at hearing.
202.6 Reports.

    Authority: Sec. 335, 72 Stat. 680; 19 U.S.C. 1335.

    Source: 27 FR 12120, Dec. 7, 1962, unless otherwise noted.



Sec. 202.1  Applicability of part.

    This part 202 applies specifically to investigations under section 
366 of the Tariff Act (19 U.S.C. 1336). \1\ For other applicable rules 
see part 201 of this chapter.
---------------------------------------------------------------------------

    \1\ Section 336(a) of the Tariff Act provides in part that ``(1) 
upon request of the President, or (2) upon resolution of either or both 
Houses of Congress, or (3) upon its own motion, or (4) when in the 
judgment of the Commission there is good and sufficient reason therefor, 
upon application of any interested party, [the commission] shall 
investigate the differences in the costs of production of any domestic 
article and of any like or similar foreign article''. (19 U.S.C. 1336.) 
The provisions of section 336 of the Tariff Act may not be applied to 
any article with respect to the importation of which into the United 
States a foreign trade agreement has been concluded under the Trade 
Agreements Act of 1934, as amended, or the Trade Expansion Act. (19 
U.S.C. 1352(a)).
---------------------------------------------------------------------------



Sec. 202.2  Applications.

    (a) Who may file. Applications for an investigation to which this 
part 202 relates may be filed by any firm, association of firms, or 
corporation engaged in the production of a domestic article, or by any 
duly authorized representative of the foregoing.
    (b) Requirements for applications. In addition to conforming with 
the requirements of Sec. 201.8 of this chapter, applications under this 
part 202 shall include the following: (1) A clear statement that they 
are requests for investigations for the purposes of section 336; (2) the 
name or description of the article concerning which an investigation is 
sought; (3) a reference to the tariff provision or provisions applicable 
to such article; and (4) a statement indicating whether an increase or a 
decrease in the rate of duty is sought.
    (c) Supporting information. The applicant must file with his 
application such supporting information as may be in his possession. As 
far as practicable, information of the following character should be 
furnished:
    (1) Comparability of the domestic and foreign articles and the 
degree of competition between them.
    (2) Trend in recent years of (i) domestic production, (ii) domestic 
sales, (iii) imports, (iv) costs of production, and (v) prices.
    (3) Evidence of difference between domestic and foreign costs of 
production of the articles involved.
    (4) Areas of greatest competition between the imported and domestic 
products and the principal market or markets in the United States.
    (5) Other relevant factors that constitute, in the opinion of the 
applicant, an advantage or disadvantage in competition, and any other 
information which the applicant believes the Commission should consider.



Sec. 202.3  Preliminary inquiry.

    Upon the receipt of an application properly filed, the Commission 
will make a preliminary inquiry for the purpose of determining whether 
there is good and sufficient reason for a full investigation. If such 
determination is in the affirmative, a full investigation will be 
instituted.



Sec. 202.4  Public hearing.

    A public hearing will be held in connection with each full 
investigation to which this part 202 relates.



Sec. 202.5  Type of information to be developed at hearing.

    Without excluding other factors, but with a view to assisting 
parties interested to present information necessary for the formulation 
of findings required

[[Page 68]]

by the statute, the Commission will expect attention in the hearing to 
be concentrated upon facts relating to:
    (a) The degree of competition between the foreign and domestic 
articles in the markets of the United States.
    (b) The degree of likeness or similarity between grades, classes, 
and price groups of the American product and the imported article.
    (c) Costs of production and importation. Statements of average cost 
of production, domestic and, so far as known, foreign, may be submitted 
subject to verification and review in the Commission's investigation. 
Such statements should include not only the direct costs for materials 
and labor, commonly termed prime cost, but also indirect costs such as 
indirect labor, overhead factory expenses, fixed charges, the portion of 
general and administrative expense chargeable to manufacture, imputed 
interest on investment equity, and transportation to markets. For the 
foreign product the expenses (other than duties) incident to importation 
are also important. Any information which may be available bearing on 
the general levels of domestic and foreign costs of production, the 
differentials between particular elements of domestic and foreign costs, 
and the extent to which invoice or wholesale prices are reliable 
evidence of foreign costs, will be pertinent.
    (d) Other significant advantages or disadvantages in competition.



Sec. 202.6  Reports.

    After the completion of its investigation, the Commission will 
incorporate its findings in a report, and the report will be transmitted 
to the President.



PART 204_INVESTIGATIONS OF EFFECTS OF IMPORTS ON AGRICULTURAL PROGRAMS--Table 

of Contents




Sec.
204.1 Applicability of part.
204.2 Investigations.
204.3 Public hearings.
204.4 Supplemental investigations.
204.5 Reports.

    Authority: 19 U.S.C. 1335.

    Source: 27 FR 12121, Dec. 7, 1962, unless otherwise noted.



Sec. 204.1  Applicability of part.

    This part 204 applies specifically to investigations under section 
22 of the Agricultural Adjustment Act, as amended (7 U.S.C. 624). \1\ 
For other applicable rules see part 201 of this chapter.
---------------------------------------------------------------------------

    \1\ Section 22 provides in part as follows:
    ``(a) Whenever the Secretary of Agriculture has reason to believe 
that any article or articles are being or are practically certain to be 
imported into the United States under such conditions and in such 
quantities as to render or tend to render ineffective, or materially 
interfere with * * * any loan, purchase, or other program or operation 
undertaken by the Department of Agriculture, or any agency operating 
under its direction, with respect to any agricultural commodity or 
product thereof, or to reduce substantially the amount of any product 
processed in the United States from any agricultural commodity or 
product thereof with respect to which any such program or operation is 
being undertaken he shall so advise the President, and, if the President 
agrees that there is reason for such belief, the President shall cause 
an immediate investigation to be made by the United States Tariff 
Commission, which shall give precedence to investigations under this 
section to determine such facts. Such investigation shall be made after 
due notice and opportunity for hearing to interested parties, and shall 
be conducted subject to such regulations as the President shall specify.
     * * * * *
    ``(d) After investigation, report, finding and declaration in the 
manner provided in the case of a proclamation issued pursuant to 
subsection (b) of this section, any proclamation or provision of such 
proclamation may be suspended or terminated by the President whenever he 
finds and proclaims that the circumstances requiring the proclamation or 
provision thereof no longer exist or may be modified by the President 
whenever he finds and proclaims that changed circumstances require such 
modification to carry out the purposes of this section.'' (7 U.S.C. 
624.)
    Regulations of the President are set forth in Executive Order 7233 
of November 23, 1935.

[27 FR 12121, Dec. 7, 1962, as amended at 68 FR 32977, June 3, 2003]



Sec. 204.2  Investigations.

    The Commission will make an investigation for the purposes of 
section 22(a) of the Agricultural Adjustment

[[Page 69]]

Act, as amended, only upon request of the President. \2\
---------------------------------------------------------------------------

    \2\ Applications for investigations for the purposes of section 22 
of this Agricultural Adjustment Act, as amended, must be filed with the 
Secretary of Agriculture (Executive Order 7233).

[27 FR 12121, Dec. 7, 1962, as amended at 68 FR 32977, June 3, 2003]



Sec. 204.3  Public hearings.

    A public hearing will be held in connection with each investigation 
to which this part 204 relates. The Foreign Agricultural Service of the 
U.S. Department of Agriculture may have a representative or 
representatives at each hearing who shall have the privilege of 
examining witnesses.



Sec. 204.4  Supplemental investigations.

    An investigation for the purposes of section 22(d) of the 
Agricultural Adjustment Act, as amended, will be made upon request of 
the President, or upon the Commission's own motion when in its judgment 
there is good and sufficient reason therefor. A public hearing will be 
held in connection with each such supplemental investigation.



Sec. 204.5  Reports.

    After completion of its investigation, the Commission will transmit 
to the President a report of the results thereof, including its findings 
and recommendations based thereon, and a statement of the steps taken in 
the investigation, together with a transcript of the evidence submitted 
at the hearing. A copy of such report will be transmitted to the 
Secretary of Agriculture.

[49 FR 32571, Aug. 15, 1984]



 PART 205_INVESTIGATIONS TO DETERMINE THE PROBABLE ECONOMIC EFFECT ON THE 

ECONOMY OF THE UNITED STATES OF PROPOSED MODIFICATIONS OF DUTIES OR OF ANY 

BARRIER TO (OR OTHER DISTORTION OF) INTERNATIONAL TRADE OR OF TAKING 

RETALIATORY ACTIONS TO OBTAIN THE ELIMINATION OF UNJUSTIFIABLE OR UNREASONABLE 

FOREIGN ACTS OR POLICIES WHICH RESTRICT U.S. COMMERCE--Table of Contents




Sec.
205.1 Applicability of part.

 Subpart A_Investigations To Determine the Probable Economic Effect of 
  Modifications of United States Duties or of Any Barrier to (or Other 
    Distortion of) International Trade on Domestic Industries and on 
                                Consumers

205.2 Applicability of subpart.
205.3 Investigations under sections 131 and 503 of the Trade Act of 
          1974.
205.4 [Reserved]

 Subpart B_Investigations Concerning the Probable Impact on the Economy 
  of the United States of the President's Taking Retaliatory Action To 
Obtain the Elimination of Unjustifiable or Unreasonable Foreign Acts or 
                  Policies Which Restrict U.S. Commerce

205.5 Applicability of subpart.
205.6 Investigations under section 301(e)(3) of the Trade Act of 1974.

    Authority: Sec. 335, Tariff Act of 1930 (72 Stat. 680; 19 U.S.C. 
1335); sec. 603, Trade Act of 1974 (88 Stat. 2073); (19 U.S.C. 2482).

    Source: 42 FR 40426, Aug. 10, 1977, unless otherwise noted.



Sec. 205.1  Applicability of part.

    This part 205 applies to functions and duties of the Commission 
under sections 131, 301(e)(3), and 503(a) of the Trade Act of 1974. For 
other applicable rules, see part 201 of this chapter.

[[Page 70]]



 Subpart A_Investigations To Determine the Probable Economic Effect of 
  Modifications of United States Duties or of Any Barrier to (or Other 
    Distortion of) International Trade on Domestic Industries and on 
                                Consumers



Sec. 205.2  Applicability of subpart.

    This subpart A of part 205 applies to investigations for the 
purposes of section 131(a)-(b), 131(c), and 503 of the Trade Act of 
1974. For other applicable rules, see part 201 of this chapter.



Sec. 205.3  Investigations under sections 131 and 503 of the Trade Act of 

1974.

    (a) Purpose of investigations--(1) Sections 131(a)-(b) and 503(a). 
Upon the receipt of a list of articles from the President or from the 
United States Trade Representative as provided in section 131(a) or 
503(a), and in Executive Order No. 11846, as amended, which may be 
considered for modification of United States duties, or as eligible 
articles for duty-free treatment under the generalized system of 
preferences, respectively, the Commission shall initiate an 
investigation to obtain information pertinent to the fomulation of its 
advice to the President under section 131(b) with respect to such 
articles to assist him in making an informed judgment as to the impact 
which might be caused by such duty modifications or duty-free treatment 
on U.S. manufacturing, agriculture, mining, fishing, labor, and 
consumers, including whether any reductions in rates of duty should take 
place over a period longer than the minimum periods provided by section 
109(a) of the Trade Act of 1974 (88 Stat. 1985; 19 U.S.C. 2119).
    (2) Section 131(c). Upon the receipt of a request from the President 
or from the United States Trade Representative as provided in section 
131(c) and in Executive Order No. 11846, as amended, to assist him in 
his determination of whether to enter into any trade agreement under 
section 102, the Commission shall institute an investigation to obtain 
information pertinent to the formulation of its views with respect to 
the probable economic effects of modifications of any barrier to (or 
other distortion of) international trade on domestic industries and 
purchasers and on prices and quantities of articles in the United 
States.
    (b) Institution and notice of investigation. An investigation to 
which this subpart A relates will be instituted promptly after the 
receipt from the President or the United States Trade Representative of 
(1) a list of articles which may be considered for duty modifications or 
duty-free treatment, or (2) a request for an investigation and report 
concerning the probable economic effects of modifications of any barrier 
to (or other distortion of) international trade.
    (c) Hearings. Public hearings will be held in connection with every 
investigation to which this subpart A relates. For other applicable 
rules, see Sec. 201.11 of this chapter.
    (d) Report to the President. After the completion of its 
investigation, the Commission will incorporate its advice or views in a 
report which together with hearing transcripts, briefs and other 
information will be transmitted to the President through the United 
States Trade Representative.

[42 FR 40426, Aug. 10, 1977, as amended at 63 FR 29351, May 29, 1998]



Sec. 205.4  [Reserved]



 Subpart B_Investigations Concerning the Probable Impact on the Economy 

  of the United States of the President's Taking Retaliatory Action To 

Obtain the Elimination of Unjustifiable or Unreasonable Foreign Acts or 

                  Policies Which Restrict U.S. Commerce



Sec. 205.5  Applicability of subpart.

    This subpart B of part 205 applies to investigations for the purpose 
of section 301(e)(3) of the Trade Act of 1974. For other applicable 
rules, see part 201 of this chapter.



Sec. 205.6  Investigations under section 301(e)(3) of the Trade Act of 1974.

    (a) Purpose of investigation. The purpose of an investigation by the 
Commission is to provide the President

[[Page 71]]

with its views pursuant to section 301(e)(3) as to the probable impact 
on the economy of the United States of imposing retaliatory restrictions 
on imports into the United States from countries or foreign 
instrumentalities which maintain restrictions against U.S. exports.
    (b) Institution and notice of investigation. An investigation to 
which this subpart B relates will be instituted promptly after the 
receipt from the President of a request for the views of the Commission 
with regard to the matters indicated in paragraph (a) of this section.
    (c) Public hearings. If, in the judgment of the Commission, there is 
good and sufficient reason therefor, the Commission, in the course of 
its investigation, will hold a public hearing and afford interested 
parties opportunity to appear and be heard at such hearing. If no notice 
of public hearing issues concurrently with a notice of investigation, 
any interested party who believes that a public hearing should be held 
may, within thirty (30) days after the date of publication in the 
Federal Register of the notice of investigation, submit a request in 
writing to the Secretary of the Commission that a public hearing be 
held, stating the reasons for such request.
    (d) Written statements. Any interested party may submit to the 
Commission a written statement of information pertinent to the subject 
matter of such investigation not later than thirty (30) days after a 
notice of investigation under paragraph (b) of this section is published 
in the Federal Register. If a public hearing is held in the 
investigation, a statement may be received in lieu of or in addition to 
appearance at the hearing. Statements shall conform with the 
requirements for documents set forth in Sec. Sec. 201.6 and 201.8 of 
this chapter.
    (e) Report to the President. After the completion of its 
investigation, the Commission will incorporate its views in a report 
which will be transmitted promptly to the President.



PART 206_INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD ACTIONS, 

MARKET DISRUPTION, TRADE DIVERSION, AND REVIEW OF RELIEF ACTIONS--Table of 

Contents




Sec.
206.1 Applicability of part.

                            Subpart A_General

206.2 Identification of type of petition or request.
206.3 Institution of investigations; publication of notice; and 
          availability for public inspection.
206.4 Notification of other agencies.
206.5 Public hearing.
206.6 Report to the President.
206.7 Confidential business information; furnishing of nonconfidential 
          summaries thereof.
206.8 Service, filing, and certification of documents.

      Subpart B_Investigations Relating to Global Safeguard Actions

206.11 Applicability of subpart.
206.12 Definitions applicable to subpart B of this part.
206.13 Who may file a petition.
206.14 Contents of petition.
206.15 Institution of investigation.
206.16 Industry adjustment plan and commitments.
206.17 Limited disclosure of certain confidential business information 
          under administrative protective order.
206.18 Time for determinations, reporting.
206.19 Public report.

  Subpart C_Investigations Relating to a Surge in Imports From a NAFTA 
                                 Country

206.21 Applicability of subpart.
206.22 Definition applicable to subpart C.
206.23 Who may file a request.
206.24 Contents of request.
206.25 Time for reporting.
206.26 Public report.

    Subpart D_Investigations Relating to Bilateral Safeguard Actions

206.31 Applicability of subpart.
206.32 Definitions applicable to subpart D.
206.33 Who may file a petition.
206.34 Contents of petition.
206.35 Time for determinations, reporting.
206.36 Public report.

[[Page 72]]

       Subpart E_Investigations for Relief From Market Disruption

206.41 Applicability of subpart.
206.42 Who may file a petition.
206.43 Contents of a petition under section 406(a) of the Trade Act.
206.44 Contents of a petition under section 421(b) or (o) of the Trade 
          Act.
206.44a Special rules for conducting investigations under section 421(b) 
          of the Trade Act.
206.45 Time for reporting.
206.46 Public report.
206.47 Limited disclosure of certain confidential business information 
          under administrative protective order.

   Subpart F_Monitoring; Advice As to Effect of Extension, Reduction, 
              Modification, or Termination of Relief Action

206.51 Applicability of subpart.
206.52 Monitoring.
206.53 Investigations to advise the President as to the probable 
          economic effect of reduction, modification, or termination of 
          action.
206.54 Investigations with respect to extension of action.
206.55 Investigations to evaluate the effectiveness of relief.

  Subpart G_Investigations For Action in Response to Trade Diversion; 
                         Reviews of Action Taken

206.61 Applicability of subpart.
206.62 Who may file a petition.
206.63 Contents of petition.
206.64 Institution of investigation or review; publication of notice; 
          and availability for public inspection.
206.65 Public hearing.
206.66 Limited disclosure of certain confidential business information 
          under administrative protective order.
206.67 Time for determination and report.
206.68 Public report.

    Authority: 19 U.S.C. 1335, 2251-2254, 2451-2451a, 3351-3382; secs. 
103, 301-302, Pub. L. 103-465, 108 Stat. 4809.

    Source: 59 FR 5091, Feb. 3, 1994, unless otherwise noted.



Sec. 206.1  Applicability of part.

    This part 206 applies specifically to functions and duties of the 
Commission under sections 201-202, 204, 406, and 421-422 of the Trade 
Act of 1974, as amended (19 U.S.C. 2251, 2252, 2254, 2436, 2451-2451a) 
(hereinafter Trade Act), and sections 301-318 of the North American Free 
Trade Agreement Implementation Act (19 U.S.C. 3351 et seq.) (hereinafter 
NAFTA Implementation Act). Subpart A of this part sets forth rules 
generally applicable to investigations conducted under these provisions; 
for other rules of general application, see part 201 of this chapter. 
Subpart B of this part sets forth rules specifically applicable to 
petitions and investigations under section 202 of the Trade Act; subpart 
C sets forth rules specifically applicable to requests and 
investigations under section 312(c) of the NAFTA Implementation Act; 
subpart D sets forth rules specifically applicable to petitions and 
investigations under section 302 of the NAFTA Implementation Act; and 
subpart E sets forth rules specifically applicable to petitions and 
investigations under section 406 or 421 of the Trade Act. Subpart F of 
this part sets forth rules applicable to functions and duties under 
section 204 of the Trade Act. Subpart G sets forth rules applicable to 
functions and duties under section 422 of the Trade Act.

[67 FR 8190, Feb. 22, 2002]



                            Subpart A_General

    Source: 60 FR 10, Jan. 3, 1995, unless otherwise noted.



Sec. 206.2  Identification of type of petition or request.

    An investigation under this part 206 may be commenced on the basis 
of a petition, request, resolution, or motion as provided in section 
202(a)(1), 204(c)(1), 406(a)(1), 421(b) or (o), or 422(b) of the Trade 
Act of 1974 or section 302(a)(1) or 312(c)(1) of the North American Free 
Trade Agreement Implementation Act. Each petition or request, as the 
case may be, filed by an entity representative of a domestic industry 
under this part 206 shall state clearly on the first page thereof ``This 
is a [petition or request] under section [202, 204(c), 406, 421(b) or 
(o), or 422(b) of the Trade Act of 1974, or section 302 or 312(c) of the 
North American Free Trade Agreement Implementation Act] and Subpart [B, 
C, D, E, F, or G] of part 206 of the rules of practice and procedure of 
the United States International Trade Commission.''

[67 FR 8190, Feb. 22, 2002]

[[Page 73]]



Sec. 206.3  Institution of investigations; publication of notice; and 

availability for public inspection.

    (a) Institution of investigation and publication of notice. Except 
as provided in Sec. 206.15(b), the Commission, after receipt of a 
petition or request under Part 206, properly filed, will promptly 
institute an appropriate investigation and publish notice thereof in the 
Federal Register. The Commission also will institute an investigation 
and publish a notice following receipt of a resolution or on the 
Commission's own motion under part 206.
    (b) Contents of notice. The notice will identify the petitioner or 
other requestor, the imported article that is the subject of the 
investigation and its tariff subheading, the nature and timing of the 
determination to be made, the time and place of any public hearing, 
dates of deadlines for filing briefs, statements, and other documents, 
limits on page lengths for posthearing briefs, the place at which the 
petition or request and any other documents filed in the course of the 
investigation may be inspected, and the name, address, and telephone 
number of the office that may be contacted for more information. The 
Commission will provide the same sort of information in its notice when 
the investigation was instituted following receipt of a resolution or on 
the Commission's own motion.
    (c) Availability for public inspection. The Commission will promptly 
make each petition, request, resolution, or Commission motion available 
for public inspection (with the exception of confidential business 
information).

[60 FR 10, Jan. 3, 1995, as amended at 67 FR 8190, Feb. 22, 2002; 68 FR 
32977, June 3, 2003]



Sec. 206.4  Notification of other agencies.

    For each investigation subject to provisions of part 206, the 
Commission will transmit copies of the petition, request, resolution, or 
Commission motion as required by the relevant statute, along with a copy 
of the notice of investigation.

[67 FR 8190, Feb. 22, 2002]



Sec. 206.5  Public hearing.

    (a) Investigations under subpart B of this part. A public hearing on 
the question of injury and a second public hearing on remedy (if 
necessary) will be held in connection with each investigation instituted 
under Subpart B of this Part after reasonable notice thereof has been 
caused to be published in the Federal Register. A hearing on remedy is 
not necessary if the Commission has made a negative determination on the 
question of injury.
    (b) Investigations under subpart C, D, E, or G of this part. A 
public hearing on the subject of injury and remedy will be held in 
connection with each investigation instituted under subpart C or D of 
this part or section 406(a) of the Trade Act and subpart E of this part, 
after reasonable notice thereof has been published in the Federal 
Register. The Commission also will conduct a public hearing in each 
investigation instituted under section 421(b) or (o) of the Trade Act 
and subpart E of this part or section 422(b) of the Act and subpart G. 
The Federal Register notice announcing the institution of such an 
investigation will list the date, time, and location of the hearing, the 
subjects to be addressed, and the procedures to be followed.
    (c) Investigations under subpart F of this part. A public hearing on 
the subject of whether an action taken under section 203 of the Trade 
Act of 1974 should be extended will be held in connection with each 
investigation instituted under subpart F of this part after reasonable 
notice thereof has been published in the Federal Register.
    (d) Opportunity to appear and to cross-question. All interested 
parties and consumers, including any association representing the 
interests of consumers, will be afforded an opportunity to be present, 
to present evidence, to comment on the adjustment plan, if any, 
submitted in the case of an investigation under section 202(b) of the 
Trade Act of 1974, and to be heard at such hearings. All interested 
parties and consumers, including any association representing the 
interests of consumers, will be afforded an opportunity

[[Page 74]]

to cross-question interested parties making presentations at the 
hearing.

[60 FR 10, Jan. 3, 1995, as amended at 67 FR 8190, Feb. 22, 2002]



Sec. 206.6  Report to the President.

    (a) In general. The Commission will include in its report to the 
President the following:
    (1) The determination made and an explanation of the basis for the 
determination;
    (2) If the determination is affirmative--or in the case of an 
investigation under section 421(b) or 422(b) of the Trade Act, if the 
President or the United States Trade Representative may consider the 
Commission's determination to be affirmative under section 421(e) or 
(i)(1) or section 422(e)(1) of the Act--to the extent appropriate, the 
recommendations for action and an explanation of the basis for each 
recommendation;
    (3) Any dissenting or separate views by members of the Commission 
regarding the determination and any recommendations;
    (b) Additional findings and information. (1) In the case of a 
determination made under section 202(b) of the Trade Act, the Commission 
will also include in its report the following:
    (i) The findings with respect to the results of an examination of 
the factors other than imports which may be a cause of serious injury or 
threat thereof to the domestic industry;
    (ii) A copy of the adjustment plan, if any, submitted by the 
petitioner;
    (iii) Commitments submitted and information obtained by the 
Commission regarding steps that firms and workers in the domestic 
industry are taking, or plan to take, to facilitate positive adjustment 
to import competition;
    (iv) A description of the short- and long-term effects that 
implementation of the action recommended is likely to have on the 
petitioning domestic industry, other domestic industries, and consumers; 
and
    (v) A description of the short- and long-term effects of not taking 
the recommended action on the petitioning domestic industry, its workers 
and communities where production facilities of such industry are 
located, and other domestic industries.
    (2) In the case of a determination made under section 302(b) of the 
NAFTA Implementation Act, the Commission will also include in its report 
the findings with respect to the results of an examination of the 
factors other than imports which may be a cause of serious injury or 
threat thereof to the domestic industry.
    (3) In the case of a determination made under section 421(b) or 
422(b) of the Trade Act, the Commission will also include in its report 
a description of--
    (i) The short- and long-term effects that implementation of the 
action recommended is likely to have on the petitioning domestic 
industry, on other domestic industries, and on consumers; and
    (ii) The short- and long-term effects of not taking the recommended 
action on the petitioning domestic industry, its workers, and the 
communities where production facilities of such industry are located, 
and on other domestic industries.

[60 FR 10, Jan. 3, 1995, as amended at 67 FR 8190, Feb. 22, 2002]



Sec. 206.7  Confidential business information; furnishing of nonconfidential 

summaries thereof.

    (a) Nonrelease of information. Except as provided for in Sec. 
206.17, in the case of an investigation under subpart B, C, D, F, or G 
of this part or an investigation under section 422 of the Trade Act and 
subpart E of this part, the Commission will not release information 
which the Commission considers to be confidential business information 
within the meaning of Sec. 201.6 of this chapter unless the party 
submitting the confidential business information had notice, at the time 
of submission, that such information would be released by the 
Commission, or such party subsequently consents to the release of the 
information. When appropriate, the Commission will include confidential 
business information in reports transmitted to the President and the 
Trade Representative; such reports will be marked as containing 
confidential business information, and a nonconfidential version of such 
report will be made available to the public.

[[Page 75]]

    (b) Nonconfidential summaries. Except as the Commission may 
otherwise provide, a party submitting confidential business information 
shall also submit to the Commission, at the time it submits such 
information, a nonconfidential summary of the information. If a party 
indicates that the confidential business information cannot be 
summarized, it shall state in writing the reasons why a summary cannot 
be provided. If the Commission finds that a request for confidentiality 
is not warranted and if the party concerned is either unwilling to make 
the information public or to authorize its disclosure in generalized or 
summarized form, the Commission may disregard the submission.

[60 FR 10, Jan. 3, 1995, as amended at 67 FR 8190, Feb. 22, 2002]



Sec. 206.8  Service, filing, and certification of documents.

    (a) Certification. Any person submitting factual information on 
behalf of the petitioner or any other interested party for the 
consideration of the Commission in the course of an investigation to 
which this part pertains, and any person submitting a response to a 
Commission questionnaire issued in connection with an investigation to 
which this part pertains, must certify that such information is accurate 
and complete to the best of the submitter's knowledge.
    (b) Service. Any party submitting a document for the consideration 
of the Commission in the course of an investigation to which this part 
pertains shall, in addition to complying with Sec. 201.8 of this 
chapter, serve a copy of the public version of such document on all 
other parties to the investigation in the manner prescribed in Sec. 
201.16 of this chapter, and, when appropriate, serve a copy of the 
confidential version of such document in the manner provided for in 
Sec. 206.17(f). The Secretary shall promptly notify a petitioner when, 
before the establishment of a service list under Sec. 206.17(a)(4), an 
application under Sec. 206.17(a) is approved. When practicable, this 
notification shall be made by facsimile transmission. A copy of the 
petition including all confidential business information shall then be 
served by petitioner on those approved applicants in accordance with 
this section within two (2) calendar days of the time notification is 
made by the Secretary. If a document is filed before the Secretary's 
issuance of the service list provided for in Sec. 201.11 of this 
chapter or the administrative protective order list provided for in 
Sec. 206.17, the document need not be accompanied by a certificate of 
service, but the document shall be served on all appropriate parties 
within two (2) days of the issuance of the service list or the 
administrative protective order list and a certificate of service shall 
then be filed. Notwithstanding Sec. 201.16 of this chapter, petitions, 
briefs, and testimony filed by parties shall be served by hand or, if 
served by mail, by overnight mail or its equivalent. Failure to comply 
with the requirements of this rule may result in removal from status as 
a party to the investigation. The Commission shall make available, upon 
request, to all parties to the investigation a copy of each document, 
except transcripts of hearings, confidential business information, 
privileged information, and information required to be served under this 
section, placed in the docket file of the investigation by the 
Commission.
    (c) Filing. Documents to be filed with the Commission must comply 
with applicable rules, including Sec. 201.8 of this chapter. If the 
Commission establishes a deadline for the filing of a document, and the 
submitter includes confidential business information in the document, 
the submitter is to file and, if the submitter is a party, serve the 
confidential version of the document on the deadline and may file and 
serve the nonconfidential version of the document no later than one 
business day after the deadline for filing the document. The 
confidential version shall enclose all confidential business information 
in brackets and have the following warning marked on every page: 
``Bracketing of CBI not final for one business day after date of 
filing.'' The bracketing becomes final one business day after the date 
of filing of the document, i.e., at the same time as the nonconfidential 
version of the document is due to be filed. Until the bracketing becomes 
final, recipients of the document

[[Page 76]]

may not divulge any part of the contents of the document to anyone not 
subject to the administrative protective order issued in the 
investigation. If the submitter discovers it has failed to bracket 
correctly, the submitter may file a corrected version or portion of the 
confidential document at the same time as the nonconfidential version is 
filed. No changes to the document other than bracketing and deletion of 
confidential business information are permitted after the deadline. 
Failure to comply with this paragraph may result in the striking of all 
or a portion of a submitter's document.

[59 FR 5091, Feb. 3, 1994, as amended at 68 FR 32977, June 3, 2003]



      Subpart B_Investigations Relating to Global Safeguard Actions

    Source: 60 FR 12, Jan. 3, 1995, unless otherwise noted.



Sec. 206.11  Applicability of subpart.

    This subpart B applies specifically to investigations under section 
202(b) of the Trade Act. For other applicable rules, see subpart A of 
this part and part 201 of this chapter.



Sec. 206.12  Definitions applicable to subpart B of this part.

    For the purposes of this subpart, the following terms have the 
meanings hereby assigned to them:
    (a) Adjustment plan means a plan to facilitate positive adjustment 
to import competition submitted by a petitioner to the Commission and 
USTR either with the petition or at any time within 120 days after the 
date of filing of the petition.
    (b) Commitment means commitments that a firm in the domestic 
industry, a certified or recognized union or group of workers in the 
domestic industry, a local community, a trade association representing 
the domestic industry, or any other person or group of persons submits 
to the Commission regarding actions such persons and entities intend to 
take to facilitate positive adjustment to import competition.



Sec. 206.13  Who may file a petition.

    A petition under this subpart B may be filed by an entity, including 
a trade association, firm, certified or recognized union, or group of 
workers, that is representative of a domestic industry producing an 
article like or directly competitive with a foreign article that is 
allegedly being imported into the United States in such increased 
quantities as to be a substantial cause of serious injury, or the threat 
thereof, to such domestic industry.



Sec. 206.14  Contents of petition.

    A petition under this subpart B shall include specific information 
in support of the claim that an article is being imported into the 
United States in such increased quantities as to be a substantial cause 
of serious injury, or the threat thereof, to the domestic industry 
producing an article like or directly competitive with the imported 
article. Such petition shall state whether provisional relief is sought 
because critical circumstances exist or because the imported article is 
a perishable agricultural product. In addition, such petition shall 
include the following information, to the extent that such information 
is available from governmental or other sources, or best estimates and 
the basis therefor if such information is not available:
    (a) Product description. The name and description of the imported 
article concerned, specifying the United States tariff provision under 
which such article is classified and the current tariff treatment 
thereof, and the name and description of the like or directly 
competitive domestic article concerned;
    (b) Representativeness. (1) The names and addresses of the firms 
represented in the petition and/or the firms employing or previously 
employing the workers represented in the petition and the locations of 
their establishments in which the domestic article is produced;
    (2) The percentage of domestic production of the like or directly 
competitive domestic article that such represented firms and/or workers 
account for and the basis for claiming that such firms and/or workers 
are representative of an industry; and

[[Page 77]]

    (3) The names and locations of all other producers of the domestic 
article known to the petitioner;
    (c) Import data. Import data for at least each of the most recent 5 
full years which form the basis of the claim that the article concerned 
is being imported in increased quantities, either actual or relative to 
domestic production;
    (d) Domestic production data. Data on total U.S. production of the 
domestic article for each full year for which data are provided pursuant 
to paragraph (c) of this section;
    (e) Data showing injury. Quantitative data indicating the nature and 
extent of injury to the domestic industry concerned:
    (1) With respect to serious injury, data indicating:
    (i) A significant idling of production facilities in the industry, 
including data indicating plant closings or the underutilization of 
production capacity;
    (ii) The inability of a significant number of firms to carry out 
domestic production operations at a reasonable level of profit; and
    (iii) Significant unemployment or underemployment within the 
industry; and/or
    (2) With respect to the threat of serious injury, data relating to:
    (i) A decline in sales or market share, a higher and growing 
inventory (whether maintained by domestic producers, importers, 
wholesalers, or retailers), and a downward trend in production, profits, 
wages, productivity, or employment (or increasing underemployment);
    (ii) The extent to which firms in the industry are unable to 
generate adequate capital to finance the modernization of their domestic 
plants and equipment, or are unable to maintain existing levels of 
expenditures for research and development;
    (iii) The extent to which the U.S. market is the focal point for the 
diversion of exports of the article concerned by reason of restraints on 
exports of such article to, or on imports of such article into, third 
country markets; and
    (3) Changes in the level of prices, production, and productivity.
    (f) Cause of injury. An enumeration and description of the causes 
believed to be resulting in the injury, or threat thereof, described 
under paragraph (e) of this section, and a statement regarding the 
extent to which increased imports, either actual or relative to domestic 
production, of the imported article are believed to be such a cause, 
supported by pertinent data;
    (g) Relief sought and purpose thereof. A statement describing the 
import relief sought, including the type, amount, and duration, and the 
specific purposes therefor, which may include facilitating the orderly 
transfer of resources to more productive pursuits, enhancing 
competitiveness, or other means of adjustment to new conditions of 
competition;
    (h) Efforts to compete. A statement on the efforts being taken, or 
planned to be taken, or both, by firms and workers in the industry to 
make a positive adjustment to import competition.
    (i) Imports from NAFTA countries. Quantitative data indicating the 
share of imports accounted for by imports from each NAFTA country 
(Canada and Mexico), and petitioner's view on the extent to which 
imports from such NAFTA country or countries are contributing 
importantly to the serious injury, or threat thereof, caused by total 
imports of such article.
    (j) Critical circumstances. If the petition alleges the existence of 
critical circumstances, a statement setting forth the basis for the 
belief that there is clear evidence that increased imports (either 
actual or relative to domestic production) of the article are a 
substantial cause of serious injury, or the threat thereof, to the 
domestic industry, and that delay in taking action would cause damage to 
that industry that would be difficult to repair, and a statement 
concerning the provisional relief requested and the basis therefor.



Sec. 206.15  Institution of investigation.

    (a) In general. Except as provided in paragraph (b) of this section, 
the Commission, after receipt of a petition under this Subpart B, 
properly filed, will promptly institute an appropriate investigation and 
will cause a notice thereof to be published in the Federal Register.

[[Page 78]]

    (b) Exceptions--(1) Reinvestigation within one (1) year. Except for 
good cause determined by the Commission to exist, no new investigation 
will be made under section 202 of the Trade Act with respect to the same 
subject matter as a previous investigation under section 202 unless one 
(1) year has elapsed since the Commission made its report to the 
President of the results of such previous investigation.
    (2) Articles subject to prior action. No new investigation will be 
made under section 202 of the Trade Act with respect to an article that 
is or has been the subject of an action under section 203(a) (3)(A), 
(B), (C), or (E) of the Trade Act if the last day on which the President 
could take action under section 203 of the Trade Act in the new 
investigation is a date earlier than that permitted under section 
203(e)(7) of the Trade Act.
    (3) Articles subject to the Textiles Agreement. No investigation 
will be made under section 202 of the Trade Act with respect to an 
article that is the subject of the WTO Agreement on Textiles and 
Clothing unless the United States has integrated the article into GATT 
1994 and the Secretary of Commerce has published notice to such effect 
in the Federal Register.
    (4) Perishable agricultural product. An entity of the type described 
in Sec. 206.13 that represents a domestic industry producing a 
perishable agricultural product may petition for provisional relief with 
respect to such product only if such product has been subject to 
monitoring by the Commission for not less than 90 days as of the date 
the allegation of injury is included in the petition.



Sec. 206.16  Industry adjustment plan and commitments.

    (a) Adjustment plan. A petitioner may submit to the Commission, 
either with the petition or at any time within 120 days after the date 
of filing of the petition, a plan to facilitate positive adjustment to 
import competition.
    (b) Commitments. If the Commission makes an affirmative injury 
determination, any firm in the domestic industry, certified or 
recognized union or group of workers in the domestic industry, local 
community, trade association representing the domestic industry, or any 
other person or group of persons may, individually, submit to the 
Commission commitments regarding actions such persons and entities 
intend to take to facilitate positive adjustment to import competition.



Sec. 206.17  Limited disclosure of certain confidential business information 

under administrative protective order.

    (a)(1) Disclosure. Upon receipt of a timely application filed by an 
authorized applicant, as defined in paragraph (a)(3) of this section, 
which describes in general terms the information requested, and sets 
forth the reasons for the request (e.g., all confidential business 
information properly disclosed pursuant to this section for the purpose 
of representing an interested party in investigations pending before the 
Commission), the Secretary shall make available all confidential 
business information contained in Commission memoranda and reports and 
in written submissions filed with the Commission at any time during the 
investigation (except privileged information, classified information, 
and specific information of a type which there is a clear and compelling 
need to withhold from disclosure, e.g., trade secrets) to the authorized 
applicant under an administrative protective order described in 
paragraph (b) of this section. The term ``confidential business 
information'' is defined in Sec. 201.6 of this chapter.
    (2) Application. An application under paragraph (a)(1) of this 
section must be made by an authorized applicant on a form adopted by the 
Secretary or a photocopy thereof. A signed application and five (5) 
copies thereof shall be filed. An application on behalf of an authorized 
applicant must be made no later than the time that entries of appearance 
are due pursuant to Sec. 201.11 of this chapter. In the event that two 
or more authorized applicants represent one interested party who is a 
party to the investigation, the authorized applicants must select one of 
their number to be lead authorized applicant. The lead authorized 
applicant's application must be filed no later than the time that 
entries of appearance are due.

[[Page 79]]

Provided that the application is accepted, the lead authorized applicant 
shall be served with confidential business information pursuant to 
paragraph (f) of this section. The other authorized applicants 
representing the same party may file their applications after the 
deadline for entries of appearance but at least five days before the 
deadline for filing posthearing briefs in the investigation, and shall 
not be served with confidential business information.
    (3) Authorized applicant. (i) Only an authorized applicant may file 
an application under this subsection. An authorized applicant is:
    (A) An attorney for an interested party which is a party to the 
investigation;
    (B) A consultant or expert under the direction and control of a 
person under paragraph (a)(3)(i)(A) of this section;
    (C) A consultant or expert who appears regularly before the 
Commission and who represents an interested party which is a party to 
the investigation; or
    (D) A representative of an interested party which is a party to the 
investigation, if such interested party is not represented by counsel.
    (ii) In addition, an authorized applicant must not be involved in 
competitive decisionmaking for an interested party which is a party to 
the investigation. Involvement in ``competitive decisionmaking'' 
includes past, present, or likely future activities, associations, and 
relationships with an interested party which is a party to the 
investigation that involve the prospective authorized applicant's advice 
or participation in any of such party's decisions made in light of 
similar or corresponding information about a competitor (pricing, 
product design, etc.).
    (iii) For purposes of this Sec. 206.17, the term interested party 
means:
    (A) A foreign manufacturer, producer, or exporter, or the United 
States importer, of an article which is the subject of an investigation 
under this section or a trade or business association a majority of the 
members of which are producers, exporters, or importers of such article;
    (B) The government of a country in which such article is produced or 
manufactured;
    (C) A manufacturer, producer, or wholesaler in the United States of 
a like or directly competitive article;
    (D) A certified union or recognized union or group of workers which 
is representative of an industry engaged in the manufacture, production, 
or wholesale of a like or directly competitive article in the United 
States;
    (E) A trade or business association a majority of whose members 
manufacture, produce, or wholesale a like or directly competitive 
article in the United States; and
    (F) An association, a majority of whose members is composed of 
interested parties described in paragraphs (a)(3)(iii) (C), (D), or (E) 
of this section with respect to a like or directly competitive article.
    (4) Forms and determinations. (i) The Secretary may adopt, from time 
to time, forms for submitting requests for disclosure pursuant to an 
administrative protective order incorporating the terms of this rule. 
The Secretary shall determine whether the requirements for release of 
information under this rule have been satisfied. This determination 
shall be made concerning specific confidential business information as 
expeditiously as possible but in no event later than fourteen (14) days 
from the filing of the information, except if the submitter of the 
information objects to its release or the information is unusually 
voluminous or complex, in which case the determination shall be made 
within thirty (30) days from the filing of the information. The 
Secretary shall establish a list of parties whose applications have been 
granted. The Secretary's determination shall be final.
    (ii) Should the Secretary determine pursuant to this section that 
materials sought to be protected from public disclosure by a person do 
not constitute confidential business information or were not required to 
be served under paragraph (f) of this section, then the Secretary shall, 
upon request, issue an order on behalf of the Commission requiring the 
return of all copies of such materials served in accordance with 
paragraph (f) of this section.

[[Page 80]]

    (iii) The Secretary shall release confidential business information 
only to an authorized applicant whose application has been accepted and 
who presents the application along with adequate personal 
identification; or a person described in paragraph (b)(1)(iv) of this 
section who presents a copy of the statement referred to in that 
paragraph along with adequate personal identification.
    (b) Administrative protective order. The administrative protective 
order under which information is made available to the authorized 
applicant shall require the applicant to submit to the Secretary a 
personal sworn statement that, in addition to such other conditions as 
the Secretary may require, the applicant shall:
    (1) Not divulge any of the confidential business information 
obtained under the administrative protective order and not otherwise 
available to the applicant, to any person other than
    (i) Personnel of the Commission concerned with the investigation,
    (ii) The person or agency from whom the confidential business 
information was obtained,
    (iii) A person whose application for access to confidential business 
information under the administrative protective order has been granted 
by the Secretary, and
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by an authorized applicant; who have a need 
thereof in connection with the investigation; who are not involved in 
competitive decisionmaking on behalf of an interested party which is a 
party to the investigation; and who have signed a statement in a form 
approved by the Secretary that they agree to be bound by the 
administrative protective order (the authorized applicant shall be 
responsible for retention and accuracy of such forms and shall be deemed 
responsible for such persons' compliance with the administrative 
protective order);
    (2) Use such confidential business information solely for the 
purposes of representing an interested party in the Commission 
investigation then in progress;
    (3) Not consult with any person not described in paragraph (b)(1) of 
this section concerning such confidential business information without 
first having received the written consent of the Secretary and the party 
or the attorney of the party from whom such confidential business 
information was obtained;
    (4) Whenever materials (e.g., documents, computer disks, etc.) 
containing such confidential business information are not being used, 
store such material in a locked file cabinet, vault, safe, or other 
suitable container;
    (5) Serve all materials containing confidential business information 
as directed by the Secretary and pursuant to paragraph (f) of this 
section;
    (6) Transmit all materials containing confidential business 
information with a cover sheet identifying the materials as containing 
confidential business information;
    (7) Comply with the provisions of this section;
    (8) Make true and accurate representations in the authorized 
applicant's application and promptly notify the Secretary of any changes 
that occur after the submission of the application and that affect the 
representations made in the application (e.g., change in personnel 
assigned to the investigation);
    (9) Report promptly and confirm in writing to the Secretary any 
breach of the administrative protective order; and
    (10) Acknowledge that breach of the administrative protective order 
may subject the authorized applicant to such sanctions or other actions 
as the Commission deems appropriate.
    (c) Final disposition of material released under administrative 
protective order. At such date as the Secretary may determine 
appropriate for particular data, each authorized applicant shall return 
or destroy all copies of materials released to authorized applicants 
pursuant to this section and all other materials containing confidential 
business information, such as charts or notes based on any such 
information received under administrative protective order, and file 
with the Secretary a certificate attesting to his personal, good faith 
belief that all copies of such material have been returned or destroyed 
and no copies of such material have

[[Page 81]]

been made available to any person to whom disclosure was not 
specifically authorized.
    (d) Commission responses to a breach of administrative protective 
order. A breach of an administrative protective order may subject an 
offender to:
    (1) Disbarment from practice in any capacity before the Commission 
along with such person's partners, associates, employer, and employees, 
for up to seven years following publication of a determination that the 
order has been breached;
    (2) Referral to the United States Attorney;
    (3) In the case of an attorney, accountant, or other professional, 
referral to the ethics panel of the appropriate professional 
association;
    (4) Such other administrative sanctions as the Commission determines 
to be appropriate, including public release of or striking from the 
record any information or briefs submitted by, or on behalf of, the 
offender or the party represented by the offender, denial of further 
access to confidential business information in the current or any future 
investigations before the Commission, and issuance of a public or 
private letter of reprimand; and
    (5) Such other actions, including but not limited to, a warning 
letter, as the Commission determines to be appropriate.
    (e) Breach investigation procedure. (1) The Commission shall 
determine whether any person has violated an administrative protective 
order, and may impose sanctions or other actions in accordance with 
paragraph (d) of this section. At any time within sixty (60) days of the 
later of
    (i) The date on which the alleged violation occurred or, as 
determined by the Commission, could have been discovered through the 
exercise of reasonable and ordinary care; or
    (ii) The completion of an investigation conducted under this 
subpart, the Commission may commence an investigation of any breach of 
an administrative protective order alleged to have occurred at any time 
during the pendency of the investigation, including all appeals, 
remands, and subsequent appeals. Whenever the Commission has reason to 
believe that a person may have breached an administrative protective 
order issued pursuant to this section, the Secretary shall issue a 
letter informing such person that the Commission has reason to believe a 
breach has occurred and that the person has a reasonable opportunity to 
present his views on whether a breach has occurred. If subsequently the 
Commission determines that a breach has occurred and that further 
investigation is warranted, then the Secretary shall issue a letter 
informing such person of that determination and that the person has a 
reasonable opportunity to present his views on whether mitigating 
circumstances exist and on the appropriate sanction to be imposed, but 
no longer on whether a breach has occurred. Once such person has been 
afforded a reasonable opportunity to present his views, the Commission 
shall determine what sanction if any to impose.
    (2) Where the sanction imposed is a private letter of reprimand, the 
Secretary shall expunge the sanction from the recipient's record two (2) 
years from the date of issuance of the sanction, provided that
    (i) The recipient has not received another unexpunged sanction 
pursuant to this section at any time prior to the end of the two year 
period, and
    (ii) The recipient is not the subject of an investigation for 
possible breach of administrative protective order under this section at 
the end of the two year period. Upon the completion of such a pending 
breach investigation without the issuance of a sanction, the original 
sanction shall be expunged. The Secretary shall notify a sanction 
recipient in the event that the sanction is expunged.
    (f) Service. (1) Any party filing written submissions which include 
confidential business information to the Commission during an 
investigation shall at the same time serve complete copies of such 
submissions upon all authorized applicants specified on the list 
established by the Secretary pursuant to paragraph (a)(4) of this 
section, and, except as provided in Sec. 206.8(c), a nonconfidential 
version on all other parties. All such submissions must be accompanied 
by a certificate attesting that complete copies of the submission

[[Page 82]]

have been properly served. In the event that a submission is filed 
before the Secretary's list is established, the document need not be 
accompanied by a certificate of service, but the submission shall be 
served within two (2) days of the establishment of the list and a 
certificate of service shall then be filed.
    (2) A party may seek an exemption from the service requirement of 
paragraph (f)(1) of this section for particular confidential business 
information by filing a request for exemption from disclosure in 
accordance with paragraph (g) of this section. The Secretary shall 
promptly respond to the request. If a request is granted, the Secretary 
shall accept the information. The party shall file three versions of the 
submission containing the information in accordance with paragraph (g) 
of this section, and serve the submission in accordance with the 
requirements of Sec. 206.8(b) and paragraph (f)(1) of this section, 
with the specific information as to which exemption from disclosure 
under administrative protective order has been granted redacted from the 
copies served. If a request is denied, the copy of the information 
lodged with the Secretary shall promptly be returned to the requester.
    (3) The Secretary shall not accept for filing into the record of an 
investigation submissions filed without a proper certificate of service. 
Failure to comply with paragraph (f) of this section may result in 
denial of party status and such sanctions as the Commission deems 
appropriate. Confidential business information in submissions must be 
clearly marked as such when submitted, and must be segregated from other 
material being submitted.
    (g) Exemption from disclosure--(1) In general. Any person may 
request exemption from the disclosure of confidential business 
information under administrative protective order, whether the person 
desires to include such information in a petition filed under this 
Subpart B, or any other submission to the Commission during the course 
of an investigation. Such a request shall only be granted if the 
Secretary finds that such information is nondisclosable confidential 
business information. As defined in Sec. 201.6(a)(2) of this chapter, 
nondisclosable confidential business information is privileged 
information, classified information, or specific information (e.g., 
trade secrets) of a type for which there is a clear and compelling need 
to withhold from disclosure.
    (2) Request for exemption. A request for exemption from disclosure 
must be filed with the Secretary in writing with the reasons therefor. 
At the same time as the request is filed, one copy of the confidential 
business information in question must be lodged with the Secretary 
solely for the purpose of obtaining a determination as to the request. 
The confidential business information for which exemption from 
disclosure is sought shall remain the property of the requester, and 
shall not become or be incorporated into any agency record until such 
time as the request is granted. A request should, when possible, be 
filed two business days prior to the deadline, if any, for filing the 
document in which the information for which exemption from disclosure is 
sought is proposed to be included. The Secretary shall promptly notify 
the requester as to whether the request has been approved or denied.
    (3) Procedure if request is approved. If the request is approved, 
the person shall file three versions of the submission containing the 
nondisclosable confidential business information in question. One 
version shall contain all confidential business information, bracketed 
in accordance with Sec. 201.6 of this chapter and Sec. 206.8(c), with 
the specific information as to which exemption from disclosure was 
granted enclosed in triple brackets. This version shall have the 
following warning marked on every page: ``CBI exempted from disclosure 
under APO enclosed in triple brackets.'' The other two versions shall 
conform to and be filed in accordance with the requirements of Sec. 
201.6 of this chapter and Sec. 206.8(c), except that the specific 
information as to which exemption from disclosure was granted shall be 
redacted from those versions of the submission.

[[Page 83]]

    (4) Procedure if request is denied. If the request is denied, the 
copy of the information lodged with the Secretary shall promptly be 
returned to the requester.

[60 FR 12, Jan. 3, 1995, as amended at 68 FR 32977, June 3, 2003; 70 FR 
8511, Feb. 22, 2005]



Sec. 206.18  Time for determinations, reporting.

    (a) In general. The Commission will make its determination with 
respect to injury within 120 days after the date on which the petition 
is filed, the request or resolution is received, or the motion is 
adopted, as the case may be, except that--
    (1) If the Commission determines before the 100th day that the 
investigation is extraordinarily complicated, the Commission will make 
its determination within 150 days; or
    (2) If critical circumstances are alleged, the Commission will make 
its determination within 120 days after completion of its investigation 
with respect to critical circumstances. The Commission will make its 
report to the President at the earliest practicable time, but not later 
than 180 days (240 days if critical circumstances are alleged) after the 
date on which the petition is filed, the request or resolution is 
received, or the motion is adopted, as the case may be.
    (b) Perishable agricultural product. In the case of a request in a 
petition for provisional relief with respect to a perishable 
agricultural product that has been the subject of monitoring by the 
Commission, the Commission will report its determination and any finding 
to the President not later than 21 days after the date on which the 
request for provisional relief is received.
    (c) Critical circumstances. If petitioner alleges the existence of 
critical circumstances in the petition, the Commission will report its 
determination regarding such allegation and any finding on or before the 
60th day after such filing date.



Sec. 206.19  Public report.

    Upon making a report to the President of the results of an 
investigation to which this subpart B relates, the Commission will make 
such report public (with the exception of information which the 
Commission determines to be confidential) and cause a summary thereof to 
be published in the Federal Register.



  Subpart C_Investigations Relating to a Surge in Imports From a NAFTA 
                                 Country



Sec. 206.21  Applicability of subpart.

    This subpart C applies specifically to investigations under section 
312(c) of the NAFTA Implementation Act. For other applicable rules, see 
subpart A of this part and part 201 of this chapter.



Sec. 206.22  Definition applicable to subpart C.

    For the purposes of this subpart, the term surge means a significant 
increase in imports over the trend for a recent representative base 
period.



Sec. 206.23  Who may file a request.

    If the President, under section 312(b) of the NAFTA Implementation 
Act, has excluded imports from a NAFTA country or countries from an 
action under chapter 1 of title II of the Trade Act of 1974, any entity 
that is representative of an industry for which such action is being 
taken may request the Commission to conduct an investigation to 
determine whether a surge in such imports undermines the effectiveness 
of the action.



Sec. 206.24  Contents of request.

    The request for an investigation shall include the following 
information:
    (a) The identity of the entity submitting the request; a description 
of the relief action the effectiveness of which is allegedly being 
undermined; and a description of the imported article, identifying the 
United States tariff provision under which it is classified, and the 
name of the country or countries from which the surge in imports is 
alleged to be coming;
    (b) The information required in Sec. 206.14(b) of this subpart 
concerning representativeness of the entity filing the request;
    (c) Data concerning imports from the NAFTA country or countries that 
form the basis of requestor's claim that a surge in imports has 
occurred;

[[Page 84]]

    (d) Information supporting the claim that such surge in imports 
undermines the effectiveness of the relief action.



Sec. 206.25  Time for reporting.

    The Commission will submit the findings of its investigation to the 
President no later than 30 days after the request is received.



Sec. 206.26  Public report.

    Upon making a report to the President of the results of an 
investigation to which this subpart C relates, the Commission will make 
such report public (with the exception of any confidential business 
information) and cause a summary thereof to be published in the Federal 
Register.



    Subpart D_Investigations Relating to Bilateral Safeguard Actions



Sec. 206.31  Applicability of subpart.

    This subpart D applies specifically to investigations under section 
302(b) of the NAFTA Implementation Act. For other applicable rules, see 
subpart A of this part and part 201 of this chapter.



Sec. 206.32  Definitions applicable to subpart D.

    For the purposes of this subpart, the following terms have the 
meanings hereby assigned to them:
    (a) Critical circumstances mean such circumstances as are described 
in section 202(b)(3)(B) of the Trade Act;
    (b) Perishable agricultural product means any agricultural article 
or citrus product, including livestock, which is the subject of 
monitoring pursuant to section 202(d) of the Trade Act.



Sec. 206.33  Who may file a petition.

    (a) In general. A petition under this subpart D may be filed by an 
entity, including a trade association, firm, certified or recognized 
union, or group of workers, that is representative of a domestic 
industry producing an article that is like or directly competitive with 
a Canadian or Mexican article that is allegedly, as a result of the 
reduction or elimination of a duty provided for under the North American 
Free Trade Agreement, being imported into the United States in such 
increased quantities (in absolute terms) and under such conditions so 
that imports of the article alone constitute a substantial cause of 
serious injury, or (except in the case of a Canadian article) a threat 
of serious injury, to such domestic industry.
    (b) Perishable agricultural product. An entity of the type described 
in paragraph (a) of this section that represents a domestic industry 
producing a perishable agricultural product may petition for provisional 
relief with respect to imports of such product from Canada or Mexico 
only if such product has been subject to monitoring by the Commission 
for not less than 90 days as of the date the allegation of injury is 
included in the petition.
    (c) The President is authorized to provide import relief with 
respect to an article from Canada or Mexico during the period provided 
for in section 305(a) of the NAFTA Implementation Act; the President may 
provide relief after the expiration of this period, but only if the 
Government of Canada or Mexico, as the case may be, consents to such 
provision (see section 305(b) of the NAFTA Implementation Act).



Sec. 206.34  Contents of petition.

    A petition under this Subpart D shall include specific information 
in support of the claim that, as a result of the reduction or 
elimination of a duty provided for under the North American Free Trade 
Agreement, a Canadian or Mexican article, as the case may be, is being 
imported into the United States in such increased quantities (in 
absolute terms) and under such conditions so that imports of the 
article, alone, constitute a substantial cause of serious injury, or 
(except in the case of a Canadian article) a threat of serious injury, 
to the domestic industry producing an article that is like or directly 
competitive with the imported article. Such petition shall state whether 
provisional relief is sought because critical circumstances exist or 
because the imported article is a perishable agricultural product. In 
addition, such petition shall include the following information, to the 
extent that such information is publicly available from governmental or 
other sources, or

[[Page 85]]

best estimates and the basis therefor if such information is not 
available:
    (a) Product description. The name and description of the imported 
article concerned, specifying the United States tariff provision under 
which such article is classified and the current tariff treatment 
thereof, and the name and description of the like or directly 
competitive domestic article concerned;
    (b) Representativeness. (1) The names and addresses of the firms 
represented in the petition and/or the firms employing or previously 
employing the workers represented in the petition and the locations of 
their establishments in which the domestic article is produced;
    (2) The percentage of domestic production of the like or directly 
competitive domestic article that such represented firms and/or workers 
account for and the basis for claiming that such firms and/or workers 
are representative of an industry; and
    (3) The names and locations of all other producers of the domestic 
article known to the petitioner;
    (c) Import data. Import data for at least each of the most recent 5 
full years that form the basis of the claim that the Canadian or Mexican 
article concerned is being imported in increased quantities in absolute 
terms;
    (d) Domestic production data. Data on total U.S. production of the 
domestic article for each full year for which data are provided pursuant 
to paragraph (c) of this section;
    (e) Data showing injury. Quantitative data indicating the nature and 
extent of injury to the domestic industry concerned:
    (1) With respect to serious injury, data indicating:
    (i) A significant idling of production facilities in the industry, 
including data indicating plant closings or the underutilization of 
production capacity;
    (ii) The inability of a significant number of firms to carry out 
domestic production operations at a reasonable level of profit; and
    (iii) Significant unemployment or underemployment within the 
industry; and/or
    (2) With respect to the threat of serious injury, data relating to:
    (i) A decline in sales or market share, a higher and growing 
inventory (whether maintained by domestic producers, importers, 
wholesalers, or retailers), and a downward trend in production, profits, 
wages, productivity, or employment (or increasing underemployment);
    (ii) The extent to which firms in the industry are unable to 
generate adequate capital to finance the modernization of their domestic 
plants and equipment, or are unable to maintain existing levels of 
expenditures for research and development;
    (iii) The extent to which the U.S. market is the focal point for the 
diversion of exports of the article concerned by reason of restraints on 
exports of such article to, or on imports of such article into, third 
country markets; and
    (3) Changes in the level of prices, production, and productivity.
    (f) Cause of injury. An enumeration and description of the causes 
believed to be resulting in the injury, or threat thereof, described 
under paragraph (e) of this section, and a statement regarding the 
extent to which increased imports of the Canadian or Mexican article are 
believed to be such a cause, supported by pertinent data;
    (g) Relief sought and purpose thereof. A statement describing the 
import relief sought, including the type, amount, and duration, and the 
specific purposes therefor, which may include facilitating the orderly 
transfer of resources to more productive pursuits, enhancing 
competitiveness, or other means of adjustment to new conditions of 
competition;
    (h) Efforts to compete. A statement on the efforts being taken, or 
planned to be taken, or both, by firms and workers in the industry to 
make a positive adjustment to import competition.
    (i) Critical circumstances. If the petition alleges the existence of 
critical circumstances, a statement setting forth the basis for the 
belief that there is clear evidence that increased imports (either 
actual or relative to domestic production) of the article are a 
substantial cause of serious injury, or the threat thereof, to the 
domestic industry, and that delay in taking action would cause damage to 
that industry

[[Page 86]]

that would be difficult to repair, and a statement concerning the 
provisional relief requested and the basis therefor.

[60 FR 16, Jan. 3, 1995]



Sec. 206.35  Time for determinations, reporting.

    (a) In general. The Commission will make its determination with 
respect to injury within 120 days after the date on which the 
investigation is initiated. The Commission will make its report to the 
President no later than 30 days after the date on which its 
determination is made.
    (b) Perishable agricultural product. In the case of a request in a 
petition for provisional relief with respect to a perishable 
agricultural product that has been the subject of monitoring by the 
Commission, the Commission will report its determination and any finding 
to the President not later than 21 days after the date on which the 
request for provisional relief is received.
    (c) Critical circumstances. If petitioner alleges the existence of 
critical circumstances in the petition, the Commission will report its 
determination regarding such allegation and any finding on or before the 
60th day after such filing date.

[60 FR 17, Jan. 3, 1995]



Sec. 206.36  Public report.

    Upon making a report to the President of the results of an 
investigation to which this subpart D relates, the Commission will make 
such report public (with the exception of information which the 
Commission determines to be confidential) and cause a summary thereof to 
be published in the Federal Register.



       Subpart E_Investigations for Relief From Market Disruption



Sec. 206.41  Applicability of subpart.

    This subpart E applies specifically to investigations under section 
406(a) or 421(b) or (o) of the Trade Act. For other applicable rules, 
see subpart A of this part and part 201 of this chapter.

[59 FR 5091, Feb. 3, 1994, as amended at 67 FR 8190, Feb. 22, 2002]



Sec. 206.42  Who may file a petition.

    (a) A petition under section 406(a) of the Trade Act may be filed by 
an entity, including a trade association, firm, certified or recognized 
union, or group of workers, that is representative of a domestic 
industry producing an article with respect to which there are imports of 
a like or directly competitive article which is the product of a 
Communist country, which imports, allegedly, are increasing rapidly, 
either absolutely or relative to domestic production, so as to be a 
significant cause of material injury, or the threat thereof, to such 
domestic industry.
    (b) A petition under section 421(b) or (o) of the Trade Act may be 
filed by an entity, including a trade association, firm, certified or 
recognized union, or group of workers, which is representative of an 
industry.

[67 FR 8191, Feb. 22, 2002]



Sec. 206.43  Contents of a petition under section 406(a) of the Trade Act.

    A petition for relief under section 406(a) of the Trade Act shall 
include specific information in support of the claim that imports of an 
article that are the product of a Communist country which are like or 
directly competitive with an article produced by a domestic industry, 
are increasing rapidly, either absolutely or relative to domestic 
production, so as to be a significant cause of material injury, or the 
threat thereof, to such domestic industry. In addition, such petition 
shall, to the extent practicable, include the following information:
    (a) Product description. The name and description of the imported 
article concerned, specifying the United States tariff provision under 
which such article is classified and the current tariff treatment 
thereof, and the name and description of the like or directly 
competitive domestic article concerned;
    (b) Representativeness. (1) The names and addresses of the firms 
represented in the petition and/or the firms employing or previously 
employing the workers represented in the petition and the locations of 
their establishments in which the domestic article is produced; (2) the 
percentage of domestic production of the like or directly competitive

[[Page 87]]

domestic article that such represented firms and/or workers account for 
and the basis for asserting that petitioner is representative of an 
industry; and (3) the names and locations of all other producers of the 
domestic article known to the petitioner;
    (c) Import data. Import data for at least each of the most recent 5 
full years which form the basis of the claim that imports from a 
Communist country of an article like or directly competitive with the 
article produced by the domestic industry concerned are increasing 
rapidly, either absolutely or relative to domestic production;
    (d) Domestic production data. Data on total U.S. production of the 
domestic article for each full year for which data are provided pursuant 
to paragraph (c) of this section;
    (e) Data showing injury. Quantitative data indicating the nature and 
extent of injury to the domestic industry concerned:
    (1) With respect to material injury, data indicating:
    (i) An idling of production facilities in the industry, including 
data indicating plant closings or the underutilization of production 
capacity;
    (ii) The inability of a number of firms to carry out domestic 
production operations at a reasonable level of profit; and
    (iii) Unemployment or underemployment within the industry; and/or
    (2) With respect to the threat of material injury, data relating to:
    (i) A decline in sales or market share, a higher and growing 
inventory (whether maintained by domestic producers, importers, 
wholesalers, or retailers), and a downward trend in production, profits, 
wages, or employment (or increasing underemployment);
    (ii) The extent to which firms in the industry are unable to 
generate adequate capital to finance the modernization of their domestic 
plants and equipment, or are unable to maintain existing levels of 
expenditures for research and development; and
    (iii) The extent to which the U.S. market is the focal point for the 
diversion of exports of the article concerned by reason of restraints on 
exports of such article to, or on imports of such article into, third 
country markets;
    (f) Cause of injury. An enumeration and description of the causes 
believed to be resulting in the material injury, or threat thereof, 
described in paragraph (e) of this section; information relating to the 
effect of imports of the subject merchandise on prices in the United 
States for like or directly competitive articles; evidence of disruptive 
pricing practices, or other efforts to unfairly manage trade patterns; 
and a statement regarding the extent to which increased imports, either 
actual or relative to domestic production, of the imported article are 
believed to be such a cause, supported by pertinent data;
    (g) Relief sought and purpose thereof. A statement describing the 
import relief sought.

[59 FR 5091, Feb. 3, 1994, as amended at 67 FR 8191, Feb. 22, 2002]



Sec. 206.44  Contents of a petition under section 421(b) or (o) of the Trade 

Act.

    (a) Petitions under section 421(b). (1) A petition for relief under 
section 421(b) of the Trade Act shall provide specific information in 
support of the claim that products of the People's Republic of China are 
being imported into the United States in such increased quantities or 
under such conditions as to cause or threaten to cause market disruption 
to the domestic producers of like or directly competitive products. In 
addition, such petition shall include the information described in 
paragraphs (b) through (j) of this section. The petition shall provide 
the information required by this paragraph and paragraphs (b) through 
(j) of this section to the extent that such information is reasonably 
available to the petitioner with due diligence.
    (2) If the petition fails to provide any item of information 
specified in paragraphs (b) through (j) of this section, the petition 
shall include a certification that such information was not reasonably 
available to the petitioner.
    (b) Product description. Each petition shall include the name and 
description of the imported product concerned, specifying the United 
States tariff provision under which such product is

[[Page 88]]

classified and the current tariff treatment thereof, and the name and 
description of the like or directly competitive domestic product 
concerned.
    (c) Representativeness. Each petition shall include:
    (1) The names and street addresses of the firms represented in the 
petition and/or the firms employing or previously employing the workers 
represented in the petition, the locations of the establishments in 
which each such firm produces the domestic product, and the telephone 
number and contact person(s) for each such firm;
    (2) The percentage of domestic production of the like or directly 
competitive domestic product that such represented firms and/or workers 
account for and the basis for asserting that petitioner is 
representative of an industry; and
    (3) The names and street addresses of all other producers of the 
domestic product known to the petitioner, and the telephone number and 
contact person(s) for each such producer.
    (d) Import data. Each petition shall include import data for at 
least each of the most recent 5 full years which form the basis of the 
claim that imports from the People's Republic of China of a product like 
or directly competitive with the product produced by the domestic 
industry concerned are increasing rapidly, either absolutely or 
relatively.
    (e) Domestic production data. Each petition shall include data on 
total U.S. production of the domestic product for each full year for 
which data are provided pursuant to paragraph (d) of this section.
    (f) Data showing injury and/or threat of injury. Each petition shall 
include the following quantitative data indicating the nature and extent 
of injury to the domestic industry concerned:
    (1) With respect to material injury, information, including data on 
production, capacity, capacity utilization, shipments, net sales, 
profits, employment, productivity, inventories, and expenditures on 
capital and research and development, indicating:
    (i) An idling of production facilities in the industry, including 
data indicating plant closings or the underutilization of production 
capacity;
    (ii) The inability of a number of firms to carry out domestic 
production operations at a reasonable level of profit; and
    (iii) Unemployment or underemployment within the industry; and/or
    (2) With respect to the threat of material injury, data relating to:
    (i) Declines in sales or market share, increases in inventory 
(whether maintained by domestic producers, importers, wholesalers, 
retailers, or producers or exporters in the People's Republic of China), 
and/or a downward trend in production, profits, wages, or employment (or 
increasing underemployment);
    (ii) The extent to which firms in the industry are unable to 
generate adequate capital to finance the modernization of their domestic 
plants and equipment, or are unable to maintain existing levels of 
expenditures for research and development;
    (iii) The extent to which the U.S. market is the focal point for the 
diversion of exports of the article concerned by reason of restraints on 
exports of such article to, or on imports of such article into, third 
country markets; and
    (iv) Data regarding productive capacity in the People's Republic of 
China, any unused productive capacity, and any potential for product 
shifting in the People's Republic of China.
    (g) Cause of injury. Each petition shall enumerate and describe the 
causes believed to be resulting in the material injury, or threat 
thereof, described in paragraph (f) of this section. The petition shall 
provide information relating to the effect of imports of the subject 
merchandise on prices in the United States for like or directly 
competitive articles. The petition shall also include a statement 
regarding the extent to which increased imports, either actual or 
relative, of the imported product are believed to be such a cause, 
supported by pertinent data.
    (h) Critical circumstances. If the petition alleges that critical 
circumstances exist within the meaning of section 421(i)(1) of the Trade 
Act, the petition shall provide detailed information supporting that 
claim as well as detailed information demonstrating that delay in taking 
action under section 421 of

[[Page 89]]

the Act would cause damage to the relevant domestic industry that would 
be difficult to repair.
    (i) Relief sought and purpose thereof. The petition shall include a 
statement describing the import relief sought under section 421(i)(4) 
and/or section 421(a) of the Trade Act and the purpose thereof.
    (j) Additional information. The petition shall include:
    (1) The names of all U.S. importers and all producers in China of 
the subject merchandise known to petitioner, and the street address, 
telephone and fax number, and primary contact person(s) for each such 
importer and producer in China;
    (2) A detailed description of each product for which the petitioner 
requests the Commission to seek pricing information in its 
questionnaires, and an explanation of why the petitioner believes the 
Commission should collect pricing information for each such product;
    (3) For each domestic producer represented by petitioner, the 
company names of its 10 largest purchasers, and the street address, 
telephone number, and primary contact person(s) for each such purchaser;
    (4) For each allegation of lost sales and/or lost revenues, 
supporting information with regard to each such alleged loss, including 
the name of the company represented by petitioner that lost the sale or 
revenue, the name of the company that captured the sale or whose 
competition resulted in lost revenue (including company street address, 
company contact person, and telephone and fax numbers for each contact 
person), the date and total value of the lost sale or lost revenue, and 
the total quantity of product involved (by weight or number of units).
    (k) Petitions under section 421(o). A petition under section 421(o) 
of the Trade Act shall include evidence of representativeness, as 
described in paragraph (b) of this section, as well as specific 
information in support of the claim that action under section 421 of the 
Act continues to be necessary to prevent or remedy market disruption. 
The information provided in support of that claim should take into 
account factors such as those specified in paragraphs (c) through (g) of 
this section. To comply with this paragraph, the petition should contain 
all relevant information that is reasonably available to the petitioner 
with due diligence.

[67 FR 8191, Feb. 22, 2002, as amended at 68 FR 65167, Nov. 19, 2003]



Sec. 206.44a  Special rules for conducting investigations under section 421(b) 

of the Trade Act.

    (a) Service of the petition. (1)(i) The Secretary shall promptly 
notify a petitioner when, before the establishment of a service list 
under Sec. 206.17(a)(4) of this part, he or she approves an application 
under Sec. 206.17(a)(2) of this part pursuant to Sec. 206.47. When 
practicable, this notification shall be made by facsimile transmission. 
The petitioner shall then serve a copy of the petition, including all 
confidential business information, on the approved lead authorized 
applicants in accord with Sec. 206.17(f) within 2 calendar days of the 
time notification is made by the Secretary.
    (ii) Upon establishment and issuance of the service list, the 
petitioner shall serve the lead authorized applicants enumerated on the 
list established by the Secretary pursuant to Sec. 206.17(a)(4) that 
have not been served pursuant to paragraph (a)(1)(i) of this section 
within 2 calendar days of the establishment and issuance of the 
Secretary's list.
    (2) As the Secretary adds new authorized applicants to the service 
list described in paragraph (a)(1) of this section, the Secretary shall 
notify the petitioner and issue an amended list, and the petitioner 
shall serve new lead authorized applicants with a copy of the petition 
in the same manner as under paragraph (a)(1)(i) of this section.
    (3) The petitioner shall serve a copy of the non-confidential 
version of the petition on those persons enumerated on the list 
established by the Secretary pursuant to Sec. 201.11(d) of this chapter 
within 2 calendar days of the establishment and issuance of the 
Secretary's list, and on any additional persons within 2 calendar days 
of receiving notification from the Secretary of an amended list.
    (4) The petitioner shall attest service of the petition by filing a 
certificate of service with the Commission.

[[Page 90]]

    (b) Comment on information. The parties shall have an opportunity to 
file comments on any information disclosed to them after they have filed 
their posthearing brief. Comments shall concern only such information, 
and shall not exceed 15 pages of textual material, double-spaced and on 
single-sided stationery measuring 8\1/2\x11 inches. A comment may 
address the accuracy, reliability, or probative value of such 
information by reference to information elsewhere in the record, in 
which case the comment shall identify where in the record such 
information is found. New factual information and arguments based on 
that information shall be disregarded. The date on which such comments 
must be filed will be specified by the Commission when it specifies the 
time that information will be disclosed. The record shall close on the 
date such comments are due, except with respect to changes in bracketing 
of confidential business information permitted by Sec. 206.8(c) of this 
part.

[68 FR 65168, Nov. 19, 2003]



Sec. 206.45  Time for reporting.

    (a) In an investigation under section 406(a) of the Trade Act, the 
Commission will make its report to the President at the earliest 
practical time, but not later than 3 months after the date on which the 
petition is filed, the request or resolution is received, or the motion 
is adopted, as the case may be.
    (b) In an investigation under section 421(b) of the Trade Act, the 
Commission will transmit to the President and the United States Trade 
Representative its determination at the earliest practicable time, but 
in no case later than 60 days (or 90 days in the case of a petition 
requesting provisional relief under section 421(i) of the Act) after the 
date on which the petition is filed, the request or resolution is 
received, or the motion is adopted. The Commission will transmit its 
report to the President and the Trade Representative no later than 20 
days after the transmittal of the determination.
    (c) In an investigation under section 421(b) of the Trade Act in 
which the petition requests provisional relief under section 421(i) of 
the Act, the Commission will transmit to the President and the Trade 
Representative its determination and report with respect to section 
421(i) of the Act no later than 45 days after the petition is filed.
    (d) In an investigation under section 421(o) of the Trade Act, the 
Commission shall transmit to the President a report on its investigation 
and determination not later than 60 days before the action under section 
421(m) of the Trade Act is to terminate.
    (e) Date of filing. Any petition under this subpart E that is filed 
after 12:00 noon shall be deemed to be filed on the next business day.

[67 FR 8192, Feb. 22, 2002, as amended at 70 FR 8511, Feb. 22, 2005]



Sec. 206.46  Public report.

    Upon making a report to the President of the results of an 
investigation to which this subpart E relates, the Commission will make 
such report public (with the exception of information which the 
Commission determines to be confidential) and cause a summary thereof to 
be published in the Federal Register.

[59 FR 5091, Feb. 3, 1994. Redesignated at 67 FR 8191, Feb. 22, 2002]



Sec. 206.47  Limited disclosure of certain confidential business information 

under administrative protective order.

    In an investigation under section 421(b) or (o) of the Trade Act, 
the Secretary shall make confidential business information available to 
authorized applicants, subject to the provisions of Sec. 206.17.

[67 FR 8192, Feb. 22, 2002]



   Subpart F_Monitoring; Advice As to Effect of Extension, Reduction, 

              Modification, or Termination of Relief Action

    Source: 60 FR 10, Jan. 3, 1995, unless otherwise noted.



Sec. 206.51  Applicability of subpart.

    This subpart F applies specifically to investigations under section 
204 of the Trade Act. For other applicable rules, see subpart A of this 
part and part 201 of this chapter.

[[Page 91]]



Sec. 206.52  Monitoring.

    (a) In general. As long as any import relief imposed by the 
President pursuant to section 203 of the Trade Act remains in effect, 
the Commission will monitor developments with respect to the domestic 
industry, including the progress and specific efforts made by workers 
and firms in the industry to make a positive adjustment to import 
competition.
    (b) Reports. Whenever the initial period of import relief, or any 
extension thereof, exceeds three (3) years, the Commission will submit a 
report on the results of such monitoring to the President and the 
Congress. Such report will be submitted not later than the date which is 
the mid-point of the initial period of import relief, or any extension 
thereof. In the course of preparing each such report, the Commission 
will hold a hearing at which interested persons will be given a 
reasonable opportunity to be present, to produce evidence, and to be 
heard.
    (c) Limited disclosure of certain confidential business information 
under administrative protective order. Upon receipt of a timely 
application filed by an authorized applicant, the Secretary shall make 
available to an authorized applicant under administrative protective 
order all confidential business information contained in Commission 
memoranda and reports and in written submissions filed with the 
Commission at any time during an investigation under this section with 
respect to an article that was the subject of an affirmative Commission 
determination under section 202 of the Trade Act (except privileged 
information, classified information, and specific information of a type 
which there is a clear and compelling need to withhold from disclosure). 
Such disclosure shall be made in the manner provided for and in 
accordance with the procedures set forth in Sec. 206.17. The provisions 
in paragraphs (d) and (e) of Sec. 206.17 relating to Commission 
responses to a breach of an administrative protective order and breach 
procedure shall apply with respect to orders issued under this 
paragraph.

[60 FR 10, Jan. 3, 1995, as amended at 66 FR 32218, June 14, 2001]



Sec. 206.53  Investigations to advise the President as to the probable 

economic effect of reduction, modification, or termination of action.

    Upon the request of the President, the Commission will conduct an 
investigation for the purpose of gathering information in order that it 
might advise the President of its judgment as to the probable economic 
effect on the industry concerned of any reduction, modification, or 
termination of the action taken under section 203 of the Trade Act which 
is under consideration.



Sec. 206.54  Investigations with respect to extension of action.

    (a) Institution of investigations. Upon the request of the 
President, or upon petition on behalf of the industry concerned, the 
Commission will investigate to determine whether an action taken under 
section 203 of the Trade Act continues to be necessary to prevent or 
remedy serious injury and whether there is evidence that the industry is 
making a positive adjustment to import competition.
    (b) Who may file a petition. A petition under this Sec. 206.54 may 
be filed by an entity, including a trade association, firm, certified or 
recognized union, or group of workers, which is representative of the 
industry producing the domestic article concerned in the investigation 
of the Commission which resulted in the imposition by the President of 
the import relief action.
    (c) Time for filing. Any petition filed on behalf of an industry for 
a determination under this Sec. 206.54 must be filed with the 
Commission not earlier than the date which is 9 months, and not later 
than the date which is 6 months, before the date any action taken under 
section 203 of the Trade Act is to terminate.
    (d) Contents of petition. A petition under this Sec. 206.54 shall 
include the following information, to the extent that such information 
is publicly available from governmental or other sources, or best 
estimates and the basis therefor if such information is not available:
    (1) Identification of relief action. An identification of the action 
under section 203, or portion of such action, for

[[Page 92]]

which a determination under this Sec. 206.54 is sought;
    (2) Representativeness. (i) The names and addresses of the firms 
represented in the petition and/or the firms employing or previously 
employing the workers represented in the petition and the locations of 
their establishments in which the domestic article is produced;
    (ii) The percentage of domestic production of the like or directly 
competitive domestic article that such represented firms and/or workers 
account for and the basis for claiming that such firms and/or workers 
are representative of an industry; and
    (iii) The names and locations of all other producers of the domestic 
article known to the petitioner;
    (3) Import data. Import data on the foreign article concerned for 
each full year since action was taken under section 203 of the Trade 
Act, starting with the year in which action was taken;
    (4) Domestic production data. Data on total U.S. production of the 
domestic article concerned for each year for which data are provided 
pursuant to paragraph (d)(3) of this section;
    (5) Efforts to adjust. Specific information in support of the claim 
that action under section 203 of the Trade Act continues to be necessary 
to prevent or remedy serious injury and that there is evidence that the 
industry is making a positive adjustment to import competition.
    (e) Limited disclosure of certain confidential business information 
under administrative protective order. Upon receipt of a timely 
application filed by an authorized applicant, the Secretary shall make 
available to an authorized applicant under administrative protective 
order all confidential business information contained in Commission 
memoranda and reports and in written submissions filed with the 
Commission at any time during an investigation under this section with 
respect to an article that was the subject of an affirmative Commission 
determination under section 202 of the Trade Act (except privileged 
information, classified information, and specific information of a type 
which there is a clear and compelling need to withhold from disclosure). 
Such disclosure shall be made in the manner provided for and in 
accordance with the procedures set forth in Sec. 206.17. The provisions 
in paragraphs (d) and (e) of Sec. 206.17 relating to Commission 
responses to a breach of an administrative protective order and breach 
procedure shall apply with respect to orders issued under this 
paragraph.
    (f) Time for reporting. The Commission will make its report to the 
President at the earliest practical time, but not later than 60 days 
before the action under section 203 of the Trade Act is to terminate, 
unless the President specifies a different date.
    (g) Public report. Upon making a report to the President of the 
results of an investigation to which this Sec. 206.54 relates, the 
Commission will make such report public (with the exception of 
information which the Commission determines to be confidential) and 
cause a summary thereof to be published in the Federal Register.



Sec. 206.55  Investigations to evaluate the effectiveness of relief.

    (a) Investigation. After any action taken under section 203 has 
terminated, the Commission will conduct an investigation for the purpose 
of evaluating the effectiveness of the relief action in facilitating 
positive adjustment by the domestic industry to import competition, 
consistent with the reasons set out by the President in the report 
submitted to the Congress under section 203(b) of the Trade Act.
    (b) Hearing. In the course of such investigation, the Commission 
will hold a hearing at which interested persons will be given an 
opportunity to be present, to produce evidence, and to be heard.
    (c) Time for reporting. The Commission will submit its report to the 
President and to the Congress by no later than the 180th day after the 
day on which the action terminated.



  Subpart G_Investigations For Action in Response to Trade Diversion; 
                         Reviews of Action Taken

    Source: 67 FR 8192, Feb. 22, 2002, unless otherwise noted.

[[Page 93]]



Sec. 206.61  Applicability of subpart.

    The provisions of this subpart G apply to investigations under 
section 422(b) and/or reviews under section 422(j) of the Trade Act. For 
other applicable rules, see subpart A of this part and part 201 of this 
chapter.



Sec. 206.62  Who may file a petition.

    A petition for an investigation under section 422(b) of the Trade 
Act may be filed by an entity, including a trade association, firm, 
certified or recognized union, or group of workers, which is 
representative of an industry.



Sec. 206.63  Contents of petition.

    A petition under section 422(b) of the Trade Act shall include 
specific information in support of the claim that an action described in 
section 422(c) of the Trade Act has caused, or threatens to cause, a 
significant diversion of trade into the domestic market of the United 
States. To comply with that requirement and the requirements in 
paragraphs (a) through (f) of this section, the petition shall include 
all relevant information that is reasonably available to the petitioner 
with due diligence. The petition shall include the following 
information:
    (a) Product description. The name and description of the imported 
product concerned, specifying the United States tariff provision under 
which such article is classified and the current tariff treatment 
thereof, and the name and description of the domestic product concerned;
    (b) Representativeness. (1) The names and addresses of the firms 
represented in the petition and/or the firms employing or previously 
employing the workers represented in the petition and the locations of 
their establishments in which the domestic product is produced;
    (2) The percentage of domestic production of the domestic product 
that such represented firms and/or workers account for and the basis for 
asserting that petitioner is representative of an industry; and
    (3) The names and locations of all other producers of the domestic 
product known to the petitioner;
    (c) Description of the action. A description of the action or 
actions, as defined in section 422(c) of the Trade Act, that allegedly 
has caused or threatens to cause a significant diversion of trade into 
the domestic market of the United States;
    (d) Trade diversion data. (1) The actual or imminent increase in 
United States market share held by such imports from the People's 
Republic of China;
    (2) The actual or imminent increase in volume of such imports into 
the United States;
    (3) The nature and extent of the action taken or proposed by the WTO 
member concerned;
    (4) The extent of exports from the People's Republic of China to 
that WTO member and to the United States;
    (5) The actual or imminent changes in exports to that WTO member due 
to the action taken or proposed;
    (6) The actual or imminent diversion of exports from the People's 
Republic of China to countries other than the United States;
    (7) Cyclical or seasonal trends in import volumes into the United 
States of the products at issue; and
    (8) Conditions of demand and supply in the United States market for 
the products at issue;
    (e) Import data. Any import data available to the petitioner that 
will aid the Commission in examining, pursuant to section 422(d)(2) of 
the Trade Act, the changes in imports into the United States from the 
People's Republic of China since the time that the WTO member commenced 
the investigation that led to a request for consultations described in 
section 422(a) of the Act; and
    (f) Relief sought and purpose thereof. A statement describing the 
import relief sought under section 422(h) of the Trade Act and the 
purpose thereof.



Sec. 206.64  Institution of investigation or review; publication of notice; 

and availability for public inspection.

    (a) Paragraphs (a) and (b) in Sec. 206.3 govern the institution of 
an investigation under section 422(b) of the Act and the publication of 
a Federal Register notice concerning the investigation. Following 
receipt of notification that the WTO member or members involved have 
notified the Committee on Safeguards of the WTO of a modification in

[[Page 94]]

the action taken by them against the People's Republic of China pursuant 
to consultation referred to in section 422(a) of the Act, the Commission 
will promptly conduct a review under section 422(j) of the Act regarding 
the continued need for action taken under section 422(h) of the Act. The 
Commission also will publish notice of the review in the Federal 
Register.
    (b) The Commission will make available for public inspection the 
notification document that prompted a review under paragraph (a) of this 
section, excluding any confidential business information in the 
document. Paragraph (c) in Sec. 206.3 governs the availability for 
public inspection of a petition, request, resolution, or motion that 
prompted the Commission to institute an investigation under section 
422(b) of the Act.



Sec. 206.65  Public hearing.

    Public hearings in investigations under section 422(b) of the Act 
are provided for in Sec. 206.5(b).



Sec. 206.66  Limited disclosure of certain confidential business information 

under administrative protective order.

    In an investigation under section 422(b) of the Trade Act, the 
Secretary shall make confidential business information available to 
authorized applicants, subject to the provisions of Sec. 206.17.



Sec. 206.67  Time for determination and report.

    (a) In an investigation under section 422(b) of the Trade Act, the 
Commission will transmit its determination under that section of the Act 
to the President and the Trade Representative at the earliest practical 
time, but not later than 45 days after the date on which the petition is 
filed, the request or resolution is received, or the motion is adopted, 
as the case may be. The Commission shall issue and transmit its report 
on the determination not later than 10 days after the determination is 
issued.
    (b) In a review under section 422(j) of the Trade Act, the 
Commission will report its determination to the President not later than 
60 days after the notification described in that section of the Act.



Sec. 206.68  Public report.

    Upon making a report to the President of the results of an 
investigation under section 422(b) or a review under section 422(j) of 
the Trade Act, the Commission will make such report public (with the 
exception of information which the Commission determines to be 
confidential) and cause a summary thereof to be published in the Federal 
Register.



  PART 207_INVESTIGATIONS OF WHETHER INJURY TO DOMESTIC INDUSTRIES RESULTS 

FROM IMPORTS SOLD AT LESS THAN FAIR VALUE OR FROM SUBSIDIZED EXPORTS TO THE 

UNITED STATES--Table of Contents




Sec.
207.1 Applicability of part.

                      Subpart A_General Provisions

207.2 Definitions applicable to part 207.
207.3 Service, filing, and certification of documents.
207.4 The record.
207.5 Ex parte meetings.
207.6 [Reserved]
207.7 Limited disclosure of certain business proprietary information 
          under administrative protective order.
207.8 Questionnaires to have the force of subpoenas; subpoena 
          enforcement.

                  Subpart B_Preliminary Determinations

207.10 Filing of petition with the Commission.
207.11 Contents of petition.
207.12 Notice of preliminary phase of investigation.
207.13 Cooperation with administering authority; preliminary phase of 
          investigation.
207.14 Negative petition determination.
207.15 Written briefs and conference.
207.16 [Reserved]
207.17 Staff report.
207.18 Notice of preliminary determination.

        Subpart C_Final Determinations, Short Life Cycle Products

207.20 Investigative activity following preliminary determination.
207.21 Final phase notice of scheduling.
207.22 Prehearing and final staff reports.
207.23 Prehearing brief.
207.24 Hearing.

[[Page 95]]

207.25 Posthearing briefs.
207.26 Statements by nonparties.
207.27 Short life cycle products.
207.28 Anticircumvention.
207.29 Publication of notice of determination.
207.30 Comment on information.

     Subpart D_Terminated, Suspended, and Continued Investigations, 
 Investigations to Review Negotiated Agreements, and Investigations To 
                    Review Outstanding Determinations

207.40 Termination and suspension of investigation.
207.41 Commission review of agreements to eliminate the injurious effect 
          of subsidized imports or imports sold at less than fair value.
207.42 Investigation continued upon request.
207.43 [Reserved]
207.44 Consolidation of investigations.
207.45 Investigation to review outstanding determination.
207.46 Investigations concerning certain countervailing duty orders.

                        Subpart E_Judicial Review

207.50 Judicial review.
207.51 Judicial review of denial of application for disclosure of 
          certain business proprietary information under administrative 
          protective order.

                       Subpart F_Five-Year Reviews

207.60 Definitions.
207.61 Responses to notice of institution.
207.62 Rulings on adequacy and nature of Commission review.
207.63 Circulation of draft questionnaires.
207.64 Staff reports.
207.65 Prehearing briefs.
207.66 Hearing.
207.67 Posthearing briefs and statements.
207.68 Final comments on information.
207.69 Publication of determinations.

  Subpart G_Implementing Regulations for the North American Free Trade 
                                Agreement

207.90 Scope.
207.91 Definitions.
207.92 Procedures for commencing review of final determinations.
207.93 Protection of proprietary information during panel and committee 
          proceedings.
207.94 Protection of privileged information during panel and committee 
          proceedings.

 Procedures for Imposing Sanctions for Violation of the Provisions of a 
     Protective Order Issued During Panel and Committee Proceedings

207.100 Sanctions.
207.101 Reporting of prohibited act and commencement of investigation.
207.102 Initiation of proceedings.
207.103 Charging letter.
207.104 Response to charging letter.
207.105 Confidentiality.
207.106 Interim measures.
207.107 Motions.
207.108 Preliminary conference.
207.109 Discovery.
207.110 Subpoenas.
207.111 Prehearing conference.
207.112 Hearings.
207.113 The record.
207.114 Initial determination.
207.115 Petition for review.
207.116 Commission review on its own motion.
207.117 Review by Commission.
207.118 Role of the General Counsel in advising the Commission.
207.119 Reconsideration.
207.120 Public notice of sanctions.

    Authority: 19 U.S.C. 1336, 1671-1677n, 2482, 3513.

    Source: 44 FR 76468, Dec. 26, 1979, unless otherwise noted.



Sec. 207.1  Applicability of part.

    Part 207 applies to proceedings of the Commission under section 516A 
and title VII of the Tariff Act of 1930 (19 U.S.C. 1303, 1516A and 1671-
1677n) (the Act), other than investigations under section 783 (19 U.S.C. 
1677n), which will be conducted pursuant to procedures specified by the 
Office of the United States Trade Representative.

[61 FR 37829, July 22, 1996]



                      Subpart A_General Provisions

    Source: 56 FR 11923, Mar. 21, 1991, unless otherwise noted.



Sec. 207.2  Definitions applicable to part 207.

    For the purposes of this part, the following terms have the meanings 
hereby assigned to them:
    (a) The term the Act means: The Tariff Act of 1930, as amended.
    (b) The term administering authority means: The Secretary of 
Commerce, or any other officer of the United States to whom the 
responsibility for carrying out the duties of the administering 
authority under section 303 or title VII of the Act is transferred by 
law.

[[Page 96]]

    (c) The term Director means: The incumbent Commission Director or 
Acting Director, Office of Operations, or, in the absence of either, a 
person designated by the Director.
    (d) The term ex parte meeting means: Any communication between
    (1) Any interested party or other person providing factual 
information in connection with an investigation, and
    (2) Any Commissioner, or member of a Commissioner's staff, in which 
less than all parties participate, and which is not a hearing or 
conference for which an opportunity to participate is given to the 
parties.
    (e) The term injury means: Material injury or threat of material 
injury to an industry in the United States, or material retardation of 
the establishment of an industry in the United States, by reason of 
imports into the United States of subject merchandise which is found by 
the administering authority to be subsidized, or sold, or likely to be 
sold, at less than its fair value.
    (f) The term record means:
    (1) All information presented to or obtained by the Commission 
during the course of an investigation, including completed 
questionnaires, any information obtained from the administering 
authority, written communications from any person filed with the 
Secretary, staff reports, all governmental memoranda pertaining to the 
case, and the record of ex parte meetings required to be kept pursuant 
to section 777(a)(3) of the Act; and
    (2) A copy of all Commission orders and determinations, all 
transcripts or records of conferences or hearings, and all notices 
published in the Federal Register concerning the investigation.
    (g) The term coalition or trade association as used in an 
investigation referred to in section 771(9)(G) of the Act means a 
coalition or trade association which is representative of domestic 
processors, domestic processors and producers, or domestic processors 
and growers.

[44 FR 76468, Dec. 26, 1979, as amended at 60 FR 21, Jan. 3, 1995]



Sec. 207.3  Service, filing, and certification of documents.

    (a) Certification. Any person submitting factual information on 
behalf of the petitioner or any other interested party for inclusion in 
the record, and any person submitting a response to a Commission 
questionnaire, must certify that such information is accurate and 
complete to the best of the submitter's knowledge.
    (b) Service. Any party submitting a document for inclusion in the 
record of the investigation shall, in addition to complying with Sec. 
201.8 of this chapter, serve a copy of each such document on all other 
parties to the investigation in the manner prescribed in Sec. 201.16 of 
this chapter. If a document is filed before the Secretary's issuance of 
the service list provided for in Sec. 201.11 of this chapter or the 
administrative protective order list provided for in Sec. 207.7, the 
document need not be accompanied by a certificate of service, but the 
document shall be served on all appropriate parties within two (2) days 
of the issuance of the service list or the administrative protective 
order list and a certificate of service shall then be filed. 
Notwithstanding Sec. 201.16 of this chapter, petitions, briefs, 
requests to close a portion of the hearing, comments on requests to 
close a portion of the hearing, and testimony filed by parties pursuant 
to Sec. Sec. 207.10, 207.15, 207.23, 207.24, 207.25, 207.65, 207.66, 
and 207.67, shall be served by hand or, if served by mail, by overnight 
mail or its equivalent. Failure to comply with the requirements of this 
rule may result in removal from status as a party to the investigation. 
The Commission shall make available to all parties to the investigation 
a copy of each document, except transcripts of conferences and hearings, 
business proprietary information, privileged information, and 
information required to be served under this section, placed in the 
record of the investigation by the Commission.
    (c) Filing. Documents to be filed with the Commission must comply 
with applicable rules, including Sec. 201.8 of this chapter. If the 
Commission establishes a deadline for the filing of a document, and the 
submitter includes business

[[Page 97]]

proprietary information in the document, the submitter is to file and, 
if the submitter is a party, serve the business proprietary version of 
the document on the deadline and may file and serve the nonbusiness 
proprietary version of the document no later than one business day after 
the deadline for filing the document. The business proprietary version 
shall enclose all business proprietary information in brackets and have 
the following warning marked on every page: ``Bracketing of BPI not 
final for one business day after date of filing.'' The bracketing 
becomes final one business day after the date of filing of the document, 
i.e., at the same time as the nonbusiness proprietary version of the 
document is due to be filed. Until the bracketing becomes final, 
recipients of the document may not divulge any part of the contents of 
the document to anyone not subject to the administrative protective 
order issued in the investigation. If the submitter discovers it has 
failed to bracket correctly, the submitter may file a corrected version 
or portion of the business proprietary document at the same time as the 
nonbusiness proprietary version is filed. No changes, including 
typographical changes, to the document other than bracketing and 
deletion of business proprietary information are permitted after the 
deadline unless an extension of time is granted to file an amended 
document pursuant to Sec. 201.14(b)(2) of this chapter. Failure to 
comply with this paragraph may result in the striking from the record of 
all or a portion of a submitter's document.

[44 FR 76468, Dec. 26, 1979, as amended at 61 FR 37829, July 22, 1996; 
63 FR 30607, June 5, 1998; 70 FR 8511, Feb. 22, 2005]



Sec. 207.4  The record.

    (a) Maintenance of the record. The Secretary shall maintain the 
record of each investigation conducted by the Commission pursuant to 
title VII of the Act. The record shall be maintained contemporaneously 
with each actual filing in the record. It shall be divided into public 
and nonpublic sections. The Secretary shall also maintain a 
contemporaneous index of all materials filed in the record. All material 
properly filed with the Secretary shall be placed in the record. The 
Commission need not consider in its determinations or include in the 
record any material that is not filed with the Secretary. All material 
which is placed in the record shall be maintained in the public record, 
with the exception of material which is privileged, or which is business 
proprietary information submitted in accordance with Sec. 201.6 of this 
chapter. Privileged and business proprietary material shall be 
maintained in the nonpublic record.
    (b) Audits. The Commission may in its discretion verify information 
received in the course of an investigation. To the extent a verification 
results in new or different information, the Commission shall place such 
information on the record.
    (c) Materials provided by the administering authority. Materials 
received by the Commission from the administering authority shall be 
placed on the Commission's record and shall be designated by the 
Commission as public or nonpublic in conformity with the applicable 
designation of the administering authority. Any requests to the 
Commission either to permit access to such materials or to release such 
materials shall be referred to the administering authority for its 
advice.

[44 FR 76468, Dec. 26, 1979, as amended at 61 FR 37829, July 22, 1996]



Sec. 207.5  Ex parte meetings.

    There shall be included in the record of each investigation a record 
of ex parte meetings as required by section 777(a)(3) of the Act. The 
record of each ex parte meeting shall include the identity of the 
persons present at the meeting, the date, time, and place of the 
meeting, and a summary of the matters discussed or submitted.



Sec. 207.6  [Reserved]



Sec. 207.7  Limited disclosure of certain business proprietary information 

under administrative protective order.

    (a)(1) Disclosure. Upon receipt of a timely application filed by an 
authorized applicant, as defined in paragraph (a)(3) of this section, 
which describes in general terms the information requested, and sets 
forth the reasons for

[[Page 98]]

the request (e.g., all business proprietary information properly 
disclosed pursuant to this section for the purpose of representing an 
interested party in investigations pending before the Commission), the 
Secretary shall make available all business proprietary information 
contained in Commission memoranda and reports and in written submissions 
filed with the Commission at any time during the investigation (except 
nondisclosable confidential business information) to the authorized 
applicant under an administrative protective order described in 
paragraph (b) of this section. The term ``business proprietary 
information'' has the same meaning as the term ``confidential business 
information'' as defined in Sec. 201.6 of this chapter.
    (2) Application. An application under paragraph (a)(1) of this 
section must be made by an authorized applicant on a form adopted by the 
Secretary or a photocopy thereof. A signed application and five (5) 
copies thereof shall be filed. An application on behalf of a petitioner, 
a respondent, or another party must be made no later than the time that 
entries of appearance are due pursuant to Sec. 201.11 of this chapter. 
In the event that two or more authorized applicants represent one 
interested party who is a party to the investigation, the authorized 
applicants must select one of their number to be lead authorized 
applicant. The lead authorized applicant's application must be filed no 
later than the time that entries of appearance are due. Provided that 
the application is accepted, the lead authorized applicant shall be 
served with business proprietary information pursuant to paragraph (f) 
of this section. The other authorized applicants representing the same 
party may file their applications after the deadline for entries of 
appearance but at least five days before the deadline for filing 
posthearing briefs in the investigation, or the deadline for filing 
briefs in the preliminary phase of an investigation, or the deadline for 
filing submissions in a remanded investigation, and shall not be served 
with business proprietary information.
    (3) Authorized applicant. (i) Only an authorized applicant may file 
an application under this subsection. An authorized applicant is:
    (A) An attorney for an interested party which is a party to the 
investigation;
    (B) A consultant or expert under the direction and control of a 
person under paragraph (a)(3)(i)(A) of this section;
    (C) A consultant or expert who appears regularly before the 
Commission and who represents an interested party which is a party to 
the investigation; or
    (D) A representative of an interested party which is a party to the 
investigation, if such interested party is not represented by counsel.
    (ii) In addition, an authorized applicant must not be involved in 
competitive decisionmaking for an interested party which is a party to 
the investigation. Involvement in ``competitive decisionmaking'' 
includes past, present, or likely future activities, associations, and 
relationships with an interested party which is a party to the 
investigation that involve the prospective authorized applicant's advice 
or participation in any of such party's decisions made in light of 
similar or corresponding information about a competitor (pricing, 
product design, etc.).
    (4) Forms and determinations. (i) The Secretary may adopt, from time 
to time, forms for submitting requests for disclosure pursuant to an 
administrative protective order incorporating the terms of this rule. 
The Secretary shall determine whether the requirements for release of 
information under this rule have been satisfied. This determination 
shall be made concerning specific business proprietary information as 
expeditiously as possible but in no event later than fourteen (14) days 
from the filing of the information, or seven (7) days in the preliminary 
phase of an investigation, except if the submitter of the information 
objects to its release or the information is unusually voluminous or 
complex, in which case the determination shall be made within thirty 
(30) days from the filing of the information, or ten (10) days in the 
preliminary phase of an investigation. The Secretary shall establish a 
list of parties whose applications have been

[[Page 99]]

granted. The Secretary's determination shall be final for purposes of 
review by the U.S. Court of International Trade under section 777(c)(2) 
of the Act.
    (ii) Should the Secretary determine pursuant to this section that 
materials sought to be protected from public disclosure by a person do 
not constitute business proprietary information or were not required to 
be served under paragraph (f) of this section, then the Secretary shall, 
upon request, issue an order on behalf of the Commission requiring the 
return of all copies of such materials served in accordance with 
paragraph (f) of this section.
    (iii) The Secretary shall release business proprietary information 
only to an authorized applicant whose application has been accepted and 
who presents the application along with adequate personal 
identification; or a person described in paragraph (b)(1)(iv) of this 
section who presents a copy of the statement referred to in that 
paragraph along with adequate personal identification.
    (iv) An authorized applicant granted access to business proprietary 
information in the preliminary phase of an investigation may, subject to 
paragraph (c) of this section, retain such business proprietary 
information during any final phase of that investigation, provided that 
the authorized applicant has not lost his authorized applicant status 
(e.g., by terminating his representation of an interested party who is a 
party). When retaining business proprietary information pursuant to this 
paragraph, the authorized applicant need not file a new application in 
the final phase of the investigation.
    (b) Administrative protective order. The administrative protective 
order under which information is made available to the authorized 
applicant shall require the applicant to submit to the Secretary a 
personal sworn statement that, in addition to such other conditions as 
the Secretary may require, the applicant shall:
    (1) Not divulge any of the business proprietary information obtained 
under the administrative protective order and not otherwise available to 
the applicant, to any person other than
    (i) Personnel of the Commission concerned with the investigation,
    (ii) The person or agency from whom the business proprietary 
information was obtained,
    (iii) A person whose application for access to business proprietary 
information under the administrative protective order has been granted 
by the Secretary, and
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by the authorized applicant; who have a need 
thereof in connection with the investigation; who are not involved in 
competitive decision making for an interested party which is a party to 
the investigation; and who have signed a statement in a form approved by 
the Secretary that they agree to be bound by the administrative 
protective order (the authorized applicant shall be responsible for 
retention and accuracy of such forms and shall be deemed responsible for 
such persons' compliance with the administrative protective order);
    (2) Use such business proprietary information solely for the 
purposes of representing an interested party in the Commission 
investigation then in progress or during judicial or other review of 
such Commission investigation;
    (3) Not consult with any person not described in paragraph (b)(1) of 
this section concerning such business proprietary information without 
first having received the written consent of the Secretary and the party 
or the attorney of the party from whom such business proprietary 
information was obtained;
    (4) Whenever materials (e.g., documents, computer disks, etc.) 
containing such business proprietary information are not being used, 
store such material in a locked file cabinet, vault, safe, or other 
suitable container;
    (5) Serve all materials containing business proprietary information 
as directed by the Secretary and pursuant to paragraph (f) of this 
section;
    (6) Transmit all materials containing business proprietary 
information with a cover sheet identifying the materials as containing 
business proprietary information;
    (7) Comply with the provisions of this section;
    (8) Make true and accurate representations in the authorized 
applicant's

[[Page 100]]

application and promptly notify the Secretary of any changes that occur 
after the submission of the application and that affect the 
representations made in the application (e.g., change in personnel 
assigned to the investigation);
    (9) Report promptly and confirm in writing to the Secretary any 
breach of the administrative protective order; and
    (10) Acknowledge that breach of the administrative protective order 
may subject the authorized applicant to such sanctions or other actions 
as the Commission deems appropriate.
    (c) Final disposition of material released under administrative 
protective order. At such date as the Secretary may determine 
appropriate for particular data, each authorized applicant shall return 
or destroy all copies of materials released to authorized applicants 
pursuant to this section and all other materials containing business 
proprietary information, such as charts or notes based on any such 
information received under administrative protective order, and file 
with the Secretary a certificate attesting to his personal, good faith 
belief that all copies of such material have been returned or destroyed 
and no copies of such material have been made available to any person to 
whom disclosure was not specifically authorized.
    (d) Commission responses to a breach of administrative protective 
order. A breach of an administrative protective order may subject an 
offender to:
    (1) Disbarment from practice in any capacity before the Commission 
along with such person's partners, associates, employer, and employees, 
for up to seven years following publication of a determination that the 
order has been breached;
    (2) Referral to the United States Attorney;
    (3) In the case of an attorney, accountant, or other professional, 
referral to the ethics panel of the appropriate professional 
association;
    (4) Such other administrative sanctions as the Commission determines 
to be appropriate, including public release of or striking from the 
record any information or briefs submitted by, or on behalf of, the 
offender or the party represented by the offender, denial of further 
access to business proprietary information in the current or any future 
investigations before the Commission, and issuance of a public or 
private letter of reprimand; and
    (5) Such other actions, including but not limited to, a warning 
letter, as the Commission determines to be appropriate.
    (e) Breach investigation procedure. (1) The Commission shall 
determine whether any person has violated an administrative protective 
order, and may impose sanctions or other actions in accordance with 
paragraph (d) of this section. At any time within sixty (60) days of the 
later of the date on which the alleged violation occurred or, as 
determined by the Commission, could have been discovered through the 
exercise of reasonable and ordinary care, or the completion of an 
investigation conducted under subpart B or C of this part, the 
Commission may commence an investigation of any breach of an 
administrative protective order alleged to have occurred at any time 
during the pendency of the investigation, including all appeals, 
remands, and subsequent appeals. Whenever the Commission has reason to 
believe that a person may have breached an administrative protective 
order issued pursuant to this section, the Secretary shall issue a 
letter informing such person that the Commission has reason to believe a 
breach has occurred and that the person has a reasonable opportunity to 
present his views on whether a breach has occurred. If subsequently the 
Commission determines that a breach has occurred and that further 
investigation is warranted, the Secretary shall issue a letter informing 
such person of that determination and that the person has a reasonable 
opportunity to present his views on whether mitigating circumstances 
exist and on the appropriate sanction to be imposed, but no longer on 
whether a breach has occurred. Once such person has been afforded a 
reasonable opportunity to present his views, the Commission shall 
determine what sanction if any to impose.
    (2) Where the sanction imposed is a private letter of reprimand, the 
Secretary shall expunge the sanction from

[[Page 101]]

the recipient's record two (2) years from the date of issuance of the 
sanction, provided that
    (i) The recipient has not received another unexpunged sanction 
pursuant to this section at any time prior to the end of the two year 
period, and
    (ii) The recipient is not the subject of an investigation for 
possible breach of administrative protective order under this section at 
the end of the two year period. Upon the completion of such a pending 
breach investigation without the issuance of a sanction, the original 
sanction shall be expunged. The Secretary shall notify a sanction 
recipient in the event that the sanction is expunged.
    (f) Service. (1) Any party filing written submissions which include 
business proprietary information to the Commission during an 
investigation shall at the same time serve complete copies of such 
submissions upon all authorized applicants specified on the list 
established by the Secretary pursuant to paragraph (a)(4) of this 
section, and, except as provided in Sec. 207.3, a nonbusiness 
proprietary version on all other parties. All such submissions must be 
accompanied by a certificate attesting that complete copies of the 
submission have been properly served. In the event that a submission is 
filed before the Secretary's list is established, the document need not 
be accompanied by a certificate of service, but the submission shall be 
served within two (2) days of the establishment of the list and a 
certificate of service shall then be filed.
    (2) If a party's request under paragraph (g) of this section is 
granted, the Secretary shall accept the nondisclosable confidential 
business information into the record. The party shall serve the 
submission containing such information in accordance with the 
requirements of Sec. 207.3(b) and paragraph (f)(1) of this section, 
with the information redacted from the copies served.
    (3) The Secretary shall not accept for filing into the record of an 
investigation submissions filed without a proper certificate of service. 
Failure to comply with paragraph (f) of this section may result in 
denial of party status and such sanctions as the Commission deems 
appropriate. Business proprietary information in submissions must be 
dealt with as required by Sec. 207.3(c).
    (g) Exemption from disclosure--(1) In general. Any person may 
request exemption from the disclosure of business proprietary 
information under administrative protective order, whether the person 
desires to include such information in a petition filed under Sec. 
207.10, or any other submission to the Commission during the course of 
an investigation. Such a request shall only be granted if the Secretary 
finds that such information is nondisclosable confidential business 
information. As defined in Sec. 201.6(a)(2) of this chapter, 
nondisclosable confidential business information is privileged 
information, classified information, or specific information (e.g., 
trade secrets) of a type for which there is a clear and compelling need 
to withhold from disclosure. The request will be granted or denied not 
later than thirty (30) days (ten (10) days in a preliminary phase 
investigation) after the date on which the request is filed.
    (2) Request for exemption. A request for exemption from disclosure 
must be filed with the Secretary in writing with the reasons therefor. 
At the same time as the request is filed, one copy of the business 
proprietary information in question must be lodged with the Secretary 
solely for the purpose of obtaining a determination as to the request. 
The business proprietary information for which exemption from disclosure 
is sought shall remain the property of the requester, and shall not 
become or be incorporated into any agency record until such time as the 
request is granted. A request should, when possible, be filed two 
business days prior to the deadline, if any, for filing the document in 
which the information for which exemption from disclosure is sought is 
proposed to be included. If the request is denied, the copy of the 
information lodged with the Secretary shall promptly be returned to the 
requester. Such a request shall only be granted if the Secretary finds 
that such information is privileged information, classified information, 
or specific information of a type for which there is a clear and 
compelling need to withhold from disclosure. The Secretary

[[Page 102]]

shall promptly notify the requester as to whether the request has been 
approved or denied.
    (3) Procedure if request is approved. If the request is approved, 
the person shall file three versions of the submission containing the 
nondisclosable confidential business information in question. One 
version shall contain all business proprietary information, bracketed in 
accordance with Sec. 201.6 of this chapter and Sec. 207.3. The other 
two versions shall conform to and be filed in accordance with the 
requirements of Sec. 201.6 of this chapter and Sec. 207.3, except that 
the specific information as to which exemption from disclosure was 
granted shall be redacted from the submission.
    (4) Procedure if request is denied. If the request is denied, the 
copy of the information lodged with the Secretary shall promptly be 
returned to the requester. The requester may file the submission in 
question without that information, in accordance with the requirements 
of Sec. 207.3.

[44 FR 76468, Dec. 26, 1979, as amended at 59 FR 66723, Dec. 28, 1994; 
61 FR 37829, July 22, 1996; 68 FR 32978, June 3, 2003; 70 FR 8512, Feb. 
22, 2005]



Sec. 207.8  Questionnaires to have the force of subpoenas; subpoena 

enforcement.

    Any questionnaire issued by the Commission in connection with any 
investigation under title VII of the Act may be issued as a subpoena and 
subscribed by a Commissioner, after which it shall have the force and 
effect of a subpoena authorized by the Commission. Whenever any party or 
any other person fails to respond adequately to such a subpoena or 
whenever a party or any other person refuses or is unable to produce 
information requested in a timely manner and in the form required, or 
otherwise significantly impedes an investigation, the Commission may:
    (a) Use the facts otherwise available in making its determination;
    (b) Seek judicial enforcement of the subpoena pursuant to 19 U.S.C. 
1333;
    (c) Make inferences adverse to such person's position, if such 
person is an interested party that has failed to cooperate by not acting 
to the best of its ability to comply with a request for information; and
    (d) Take such other actions as necessary to obtain needed 
information.

[61 FR 37831, July 22, 1996]



                  Subpart B_Preliminary Determinations

    Source: 56 FR 11927, Mar. 21, 1991, unless otherwise noted.



Sec. 207.10  Filing of petition with the Commission.

    (a) Filing of the petition. Any interested party who files a 
petition with the administering authority pursuant to section 702(b) or 
section 732(b) of the Act in a case in which a Commission determination 
under title VII of the Act is required, shall file copies of the 
petition, including all exhibits, appendices, and attachments thereto, 
pursuant to Sec. 201.8 of this chapter, with the Secretary on the same 
day the petition is filed with the administering authority. If the 
petition complies with the provisions of Sec. 207.11, it shall be 
deemed to be properly filed on the date on which the requisite number of 
copies of the petition is received by the Secretary, provided that, if 
the petition is filed with the Secretary after 12:00 noon, the petition 
shall be deemed filed on the next business day. The Secretary shall 
notify the administering authority of that date. Notwithstanding Sec. 
201.11 of this chapter, a petitioner need not file an entry of 
appearance in the investigation instituted upon the filing of its 
petition, which shall be deemed an entry of appearance.
    (b) Service of the petition. (1)(i) The Secretary shall promptly 
notify a petitioner when, before the establishment of a service list 
under Sec. 207.7(a)(4), he or she approves an application under Sec. 
207.7(a). When practicable, this notification shall be made by facsimile 
transmission. A copy of the petition including all business proprietary 
information shall then be served by petitioner on those approved 
applicants in accord with Sec. 207.3(b) within two (2) calendar days of 
the time notification is made by the Secretary.

[[Page 103]]

    (ii) The petitioner shall serve persons enumerated on the list 
established by the Secretary pursuant to Sec. 207.7(a)(4) that have not 
been served pursuant to paragraph (b)(1)(i) of this section within two 
(2) calendar days of the establishment of the Secretary's list.
    (2) A copy of the petition omitting business proprietary information 
shall be served by petitioner on those persons enumerated on the list 
established by the Secretary pursuant to Sec. 201.11(d) of this chapter 
within two (2) calendar days of the establishment of the Secretary's 
list.
    (3) Service of the petition shall be attested by filing a 
certificate of service with the Commission.
    (c) Amendments and withdrawals; critical circumstances. (1) Any 
amendment or withdrawal of a petition shall be filed on the same day 
with both the Secretary and the administering authority, without regard 
to whether the requester seeks action only by one agency.
    (2) When not made in the petition, any allegations of critical 
circumstances under section 703 or section 733 of the Act shall be made 
in an amendment to the petition and shall be filed as early as possible. 
Critical circumstances allegations, whether made in the petition or in 
an amendment thereto, shall contain information reasonably available to 
petitioner concerning the factors enumerated in sections 705(b)(4)(A) 
and 735(b)(4)(A) of the Act.

[61 FR 37831, July 22, 1996, as amended at 70 FR 8512, Feb. 22, 2005]



Sec. 207.11  Contents of petition.

    (a) The petition shall be signed by the petitioner or its duly 
authorized officer, attorney, or agent, and shall set forth the name, 
address, and telephone number of the petitioner and any such officer, 
attorney, or agent, and the names of all representatives of petitioner 
who will appear in the investigation.
    (b)(1) The petition shall allege the elements necessary for the 
imposition of a duty under section 701(a) or section 731(a) of the Act 
and contain information reasonably available to the petitioner 
supporting the allegations.
    (2) The petition shall also include the following specific 
information, to the extent reasonably available to the petitioner:
    (i) Identification of the domestic like product(s) proposed by 
petitioner;
    (ii) A listing of all U.S. producers of the proposed domestic like 
product(s), including a street address, phone number, and contact 
person(s) for each producer;
    (iii) A listing of all U.S. importers of the subject merchandise, 
including street addresses and phone numbers for each importer;
    (iv) Identification of each product on which the petitioner requests 
the Commission to seek pricing information in its questionnaires; and
    (v) A listing of all sales or revenues lost by each petitioning firm 
by reason of the subject merchandise during the three years preceding 
filing of the petition.
    (3) The petition shall contain a certification that each item of 
information specified in paragraph (b)(2) of this section that the 
petition does not include was not reasonably available to the 
petitioner.
    (4) Petitioners are also advised to refer to the administering 
authority's regulations concerning the contents of petitions.

[61 FR 37831, July 22, 1996]



Sec. 207.12  Notice of preliminary phase of investigation.

    Upon receipt by the Commission of a petition under Sec. 207.10 or 
receipt of notice that the administering authority has commenced an 
investigation under section 702(a) or section 732(a) of the Act, the 
Director shall, as soon as practicable after consultation with the 
administering authority, institute an investigation and commence the 
preliminary phase of the investigation under section 703(a) or section 
733(a) of the Act and shall publish a notice to that effect in the 
Federal Register.

[61 FR 37832, July 22, 1996]



Sec. 207.13  Cooperation with administering authority; preliminary phase of 

investigation.

    Subsequent to institution of an investigation pursuant to section 
207.12,

[[Page 104]]

the Director shall conduct such investigation as the Director deems 
appropriate. Information adduced in the investigation shall be placed on 
the record. The Director shall cooperate with the administering 
authority in its determination of the sufficiency of a petition and in 
its decision whether to permit any proposed amendment to a petition. 
Notwithstanding Sec. Sec. 201.11(c) and 201.14(b) of this chapter, late 
filings in the preliminary phase of an investigation shall be referred 
to the Director, who shall determine whether to accept such filing for 
good cause shown by the person making the filing.

[61 FR 37832, July 22, 1996]



Sec. 207.14  Negative petition determination.

    Upon receipt by the Commission of notice from the administering 
authority under section 702(d) or section 732(d) of the Act that the 
administering authority has made a negative petition determination under 
section 702(c)(3) or section 732(c)(3) of the Act, the investigation 
begun pursuant to Sec. 207.12 shall terminate. All persons who have 
received requests for information from the Director shall be notified of 
the termination.

[61 FR 37832, July 22, 1996]



Sec. 207.15  Written briefs and conference.

    Each party may submit to the Commission on or before a date 
specified in the notice of investigation issued pursuant to Sec. 207.12 
a written brief containing information and arguments pertinent to the 
subject matter of the investigation. Briefs shall be signed, shall 
include a table of contents, and shall contain no more than fifty (50) 
double spaced and single sided pages of textual material, on stationery 
measuring 8\1/2\x11 inches. Any person not a party may submit a brief 
written statement of information pertinent to the investigation within 
the time specified for the filing of briefs. In addition, the presiding 
official may permit persons to file within a specified time answers to 
questions or requests made by the Commission's staff. If he deems it 
appropriate, the Director shall hold a conference. The conference, if 
any, shall be held in accordance with the procedures in Sec. 201.13 of 
this chapter, except that in connection with its presentation a party 
may file witness testimony with the Secretary no later than three (3) 
days before the conference. The Director may request the appearance of 
witnesses, take testimony, and administer oaths.



Sec. 207.16  [Reserved]



Sec. 207.17  Staff report.

    Prior to the Commission's preliminary determination, the Director 
shall submit to the Commission a staff report. A public version of the 
staff report shall be made available to the public after the 
Commission's preliminary determination and a business proprietary 
version shall also be made available to persons authorized to receive 
business proprietary information under Sec. 207.7.



Sec. 207.18  Notice of preliminary determination.

    Whenever the Commission makes a preliminary determination, the 
Secretary shall serve copies of the determination and a public version 
of the staff report on the petitioner, other parties to the 
investigation, and the administering authority. The Secretary shall 
publish a notice of such determination in the Federal Register. If the 
Commission's determination is negative, or that imports are negligible, 
the investigation shall be terminated. If the Commission's determination 
is affirmative, the notice shall announce commencement of the final 
phase of the investigation.

[61 FR 37832, July 22, 1996]



        Subpart C_Final Determinations, Short Life Cycle Products

    Source: 56 FR 11928, Mar. 21, 1991, unless otherwise noted.



Sec. 207.20  Investigative activity following preliminary determination.

    (a) If the Commission's preliminary determination is affirmative, 
the Director shall continue investigative activities pending notice by 
the administering authority of its preliminary

[[Page 105]]

determination under section 703(b) or section 733(b) of the Act.
    (b) The Director shall circulate draft questionnaires for the final 
phase of an investigation to parties to the investigation for comment. 
Any party desiring to comment on draft questionnaires shall submit such 
comments in writing to the Commission within a time specified by the 
Director.

[61 FR 37832, July 22, 1996]



Sec. 207.21  Final phase notice of scheduling.

    (a) Notice from the administering authority of an affirmative 
preliminary determination under section 703(b) or section 733(b) of the 
Act and notice from the administering authority of an affirmative final 
determination under section 705(a) or section 735(a) of the Act shall be 
deemed to occur on the date on which the transmittal letter of such 
determination is received by the Secretary from the administering 
authority or the date on which notice of such determination is published 
in the Federal Register, whichever shall first occur.
    (b) Upon receipt of notice from the administering authority of an 
affirmative preliminary determination under section 703(b) or section 
733(b) of the Act or, if the administering authority's preliminary 
determination is negative, notice of an affirmative final determination 
under section 705(a) or section 735(a) of the Act, the Commission shall 
publish in the Federal Register a Final Phase Notice of Scheduling.
    (c) If the administering authority's preliminary determination is 
negative, the Director shall continue such investigative activities as 
the Director deems appropriate pending a final determination by the 
administering authority under section 705(a) or section 735(a) of the 
Act.
    (d) Upon receipt by the Commission of notice from the administering 
authority of its final negative determination under section 705(a) or 
section 735(a) of the Act, the corresponding Commission investigation 
shall be terminated.

[61 FR 37832, July 22, 1996]



Sec. 207.22  Prehearing and final staff reports.

    (a) Prehearing staff report. The Director shall prepare and place in 
the record, prior to the hearing, a prehearing staff report containing 
information concerning the subject matter of the investigation. A 
version of the staff report containing business proprietary information 
shall be placed in the nonpublic record and made available to persons 
authorized to receive business proprietary information under Sec. 
207.7, and a nonbusiness proprietary version of the staff report shall 
be placed in the public record.
    (b) Final staff report. After the hearing, the Director shall revise 
the prehearing staff report and submit to the Commission, prior to the 
Commission's final determination, a final version of the staff report. 
The final staff report is intended to supplement and correct the 
information contained in the prehearing staff report. A public version 
of the final staff report shall be made available to the public and a 
business proprietary version shall also be made available to persons 
authorized to receive business proprietary information under section 
207.7.

[56 FR 11927, Mar. 21, 1991, as amended at 60 FR 22, Jan. 3, 1995. 
Redesignated at 61 FR 37832, July 22, 1996]



Sec. 207.23  Prehearing brief.

    Each party who is an interested party shall submit to the 
Commission, no later than five (5) business days prior to the date of 
the hearing specified in the notice of scheduling, a prehearing brief. 
Prehearing briefs shall be signed and shall include a table of contents. 
The prehearing brief should present a party's case concisely and shall, 
to the extent possible, refer to the record and include information and 
arguments which the party believes relevant to the subject matter of the 
Commission's determination under section 705(b) or section 735(b) of the 
Act. Any person not an interested party may submit a brief written 
statement of information pertinent to the investigation within the time 
specified for filing of prehearing briefs.

[70 FR 8512, Feb. 22, 2005]

[[Page 106]]



Sec. 207.24  Hearing.

    (a) In general. The Commission shall hold a hearing concerning an 
investigation before making a final determination under section 705(b) 
or section 735(b) of the Act.
    (b) Procedures. Any hearing shall be conducted after notice 
published in the Federal Register. The hearing shall not be subject to 
the provisions of 5 U.S.C. subchapter II, chapter 5, or to 5 U.S.C. 702. 
Each party shall limit its presentation at the hearing to a summary of 
the information and arguments contained in its prehearing brief, an 
analysis of the information and arguments contained in the prehearing 
briefs described in Sec. 207.23, and information not available at the 
time its prehearing brief was filed. Unless a portion of the hearing is 
closed, presentations at the hearing shall not include business 
proprietary information. Notwithstanding Sec. 201.13(f) of this 
chapter, in connection with its presentation a party may file witness 
testimony with the Secretary no later than three (3) business days 
before the hearing. In the case of testimony to be presented at a closed 
session held in response to a request under Sec. 207.24(d), 
confidential and non-confidential versions shall be filed in accordance 
with Sec. 207.3. Any person not a party may make a brief oral statement 
of information pertinent to the investigation.
    (c) Hearing transcripts--(1) In general. A verbatim transcript shall 
be made of all hearings or conferences held in connection with 
Commission investigations conducted under this part.
    (2) Revision of transcripts. Within ten (10) days of the completion 
of a hearing, but in any event at least one (1) day prior to the date 
for disclosure of information set pursuant to Sec. 207.30(a), any 
person who testified at the hearing may submit proposed revisions to the 
transcript of his or her testimony to the Secretary. No substantive 
revisions shall be permitted. If in the judgment of the Secretary a 
proposed revision does not alter the substance of the testimony in 
question, the Secretary shall incorporate the revision into a revised 
transcript.
    (d) Closed sessions. Upon a request filed by a party to the 
investigation no later than seven (7) business days prior to the date of 
the hearing that identifies the subjects to be discussed, specifies the 
amount of time requested, and justifies the need for a closed session 
with respect to each subject to be discussed, the Commission may close a 
portion of a hearing to persons not authorized under Sec. 207.7 to have 
access to business proprietary information in order to allow such party 
to address business proprietary information during the course of its 
presentation. If any party wishes to comment on the request to close a 
portion of the hearing, such comments must be filed within two (2) 
business days after the filing of the request. In addition, during each 
hearing held in an investigation conducted under section 705(b) or 
section 735(b) of the Act, following the public presentation of the 
petitioner(s) and that of each panel of respondents, the Commission 
will, if it deems it appropriate, close the hearing to persons not 
authorized under Sec. 207.7 to have access to business proprietary 
information in order to allow Commissioners to question parties and/ or 
their representatives concerning matters involving business proprietary 
information.

[61 FR 37832, July 22, 1996, as amended at 70 FR 8512, Feb. 22, 2005]



Sec. 207.25  Posthearing briefs.

    Any party may file a posthearing brief concerning the information 
adduced at or after the hearing with the Secretary within a time 
specified in the notice of scheduling or by the presiding official at 
the hearing. No such posthearing brief shall exceed fifteen (15) pages 
of textual material, double spaced and single sided, on stationery 
measuring 8\1/2\ x 11 inches. In addition, the presiding official may 
permit persons to file answers to questions or requests made by the 
Commission at the hearing within a specified time. The Secretary shall 
not accept for filing posthearing briefs or answers which do not comply 
with this section.

[61 FR 37833, July 22, 1996]

[[Page 107]]



Sec. 207.26  Statements by nonparties.

    Any person other than a party may submit a brief written statement 
of information pertinent to the investigation within the time specified 
for the filing of posthearing briefs.

[56 FR 11928, Mar. 21, 1991. Redesignated at 61 FR 37832, July 22, 1996]



Sec. 207.27  Short life cycle products.

    (a) An eligible domestic entity may file a petition to establish a 
product category for short life cycle merchandise which has been the 
subject of two or more affirmative dumping determinations. The 
Commission shall within thirty (30) days of the filing of the petition 
determine its sufficiency. If the petition is found to be sufficient, 
the Commission shall institute a proceeding to establish a product 
category and publish a notice of institution in the Federal Register. 
Upon request of an interested person filed within fifteen (15) days 
after publication of the notice of institution, the Commission shall 
conduct a hearing which shall be transcribed. The Commission's 
determination concerning the scope of the product category into which to 
classify the short life cycle merchandise identified by the petition 
shall be issued no later than ninety (90) days after the filing of the 
petition.
    (b) The Commission may on its own initiative and at any time modify 
the scope of a product category established in a proceeding pursuant to 
paragraph (a) of this section. Ninety (90) days prior to such 
modification, the Commission shall publish a notice of proposed 
modification in the Federal Register. Upon request of an interested 
party filed within fifteen (15) days after publication of the notice of 
proposed modification, the Commission shall conduct a hearing which 
shall be transcribed. Written submissions concerning the proposed 
modification shall be accepted if filed no later than sixty (60) days 
after publication of the notice of proposed modification.

[56 FR 11928, Mar. 21, 1991. Redesignated at 61 FR 37832, July 22, 1996]



Sec. 207.28  Anticircumvention.

    Prior to providing advice to the administering authority pursuant to 
section 781(e)(3) of the Act, the Commission shall publish in the 
Federal Register a notice that such advice is contemplated. Any person 
may file one written submission concerning the matter described in the 
notice no later than fourteen (14) days after publication of the notice. 
Such a statement shall contain no more than fifty (50) double spaced and 
single sided pages of textual material, on stationery measuring 8\1/2\ x 
11 inches. The Commission shall by notice provide for additional 
statements as it deems necessary.

[56 FR 11928, Mar. 21, 1991. Redesignated at 61 FR 37832, July 22, 1996]



Sec. 207.29  Publication of notice of determination.

    Whenever the Commission makes a final determination, the Secretary 
shall serve copies of the determination and the nonbusiness proprietary 
version of the final staff report on the petitioner, other parties to 
the investigation, and the administering authority. The Secretary shall 
publish notice of such determination in the Federal Register.

[61 FR 37833, July 22, 1996]



Sec. 207.30  Comment on information.

    (a) In any final phase of an investigation under section 705 or 
section 735 of the Act, the Commission shall specify a date on which it 
will disclose to all parties to the investigation all information it has 
obtained on which the parties have not previously had an opportunity to 
comment. Any such information that is business proprietary information 
will be released to persons authorized to obtain such information 
pursuant to Sec. 207.7. The date on which disclosure is made will occur 
after the filing of posthearing briefs pursuant to Sec. 207.25.
    (b) The parties shall have an opportunity to file comments on any 
information disclosed to them after they have filed their posthearing 
brief pursuant to Sec. 207.25. Comments shall only concern such 
information, and shall not exceed 15 pages of textual material, double 
spaced and single-sided, on stationery measuring 8\1/2\ x 11 inches. A 
comment may address the accuracy, reliability, or probative value of 
such

[[Page 108]]

information by reference to information elsewhere in the record, in 
which case the comment shall identify where in the record such 
information is found. Comments containing new factual information shall 
be disregarded. The date on which such comments must be filed will be 
specified by the Commission when it specifies the time that information 
will be disclosed pursuant to paragraph (a) of this section. The record 
shall close on the date such comments are due, except with respect to 
investigations subject to the provisions of section 771(7)(G)(iii) of 
the Act, and with respect to changes in bracketing of business 
proprietary information in the comments permitted by Sec. 207.3(c).

[61 FR 37833, July 22, 1996]



     Subpart D_Terminated, Suspended, and Continued Investigations, 

 Investigations to Review Negotiated Agreements, and Investigations To 

                    Review Outstanding Determinations

    Source: 56 FR 11929, Mar. 21, 1991, unless otherwise noted.



Sec. 207.40  Termination and suspension of investigation.

    (a) An investigation under title VII may be terminated by the 
Commission by giving notice in the Federal Register to all parties to 
the investigation, upon withdrawal of the petition by the petitioner, or 
upon issuance of a final negative determination or termination of its 
investigation by the administering authority under section 303, 705 or 
735 of the Act. The Commission may not terminate an investigation upon 
withdrawal of the petition by the petitioner, however, before a 
determination is made by the administering authority under section 
702(c), 703(b), 732(c) or 733(b) of the Act.
    (b) Upon receipt of notice of suspension of an investigation by the 
administering authority under section 704 (b) or (c) or 734(b), (c), or 
(1), of the Act, the Secretary shall issue a notice of suspension of the 
Commission investigation. Such suspension shall not prevent the Director 
from conducting such other investigative activities as he deems 
appropriate with respect to the subject matter of the suspended 
investigation.
    (c) Resumption of suspended investigation--(1) Purpose. If the 
administering authority determines pursuant to section 704(i) or 734(i) 
of the Act to resume a suspended investigation and so notifies the 
Commission of its determination, and in the event that the suspended 
investigation was not terminated, the Commission shall resume the 
investigation.
    (2) Procedures. The procedures set forth in subpart C shall apply to 
all investigations instituted under this section.

[56 FR 11927, Mar. 21, 1991, as amended at 60 FR 22, Jan. 3, 1995]



Sec. 207.41  Commission review of agreements to eliminate the injurious effect 

of subsidized imports or imports sold at less than fair value.

    If the administering authority determines to suspend an 
investigation upon acceptance of an agreement to eliminate the injurious 
effect of subsidized imports or imports sold at less than fair value, 
the Commission shall, upon petition, initiate an investigation to 
determine whether the injurious effect of imports of the merchandise 
which was the subject of the suspended investigation is eliminated 
completely by the agreement. Petitions may be filed by a party to the 
investigation which is an interested party described in paragraph (C), 
(D), (E), (F), or (G) of section 771(9) of the Act. Investigations under 
this section shall be completed within seventy five (75) days of their 
initiation.



Sec. 207.42  Investigation continued upon request.

    Upon receipt of advice from the administering authority that it has 
received a request for the continuation of a suspended investigation 
pursuant to section 704(g) or 734(g) of the Act, the Commission shall 
continue the investigation. The procedures set forth in subparts B and C 
of this part, including applicable time limitations, shall apply to all 
continued investigations within this rule.

[[Page 109]]



Sec. 207.43  [Reserved]



Sec. 207.44  Consolidation of investigations.

    The Commission may, when appropriate, consolidate continued 
investigations under section 704(g) or section 734(g) of the Act with 
investigations to review agreements for the elimination of injury under 
section 704(h) or section 734(h) of the Act.



Sec. 207.45  Investigation to review outstanding determination.

    (a) Request for review. Any person may file with the Commission a 
request for the institution of a review investigation under section 
751(b) of the Act. The person making the request shall also promptly 
serve copies of the request on the parties to the original investigation 
upon which the review is to be based. All requests shall set forth a 
description of changed circumstances sufficient to warrant the 
institution of a review investigation by the Commission.
    (b) Notice of receipt of a request. Upon the receipt of a properly 
filed and sufficient request for a review investigation, the Secretary 
shall publish a notice of having received such a request in the Federal 
Register inviting public comment on the question of whether the 
Commission should institute a review investigation. Persons shall have 
at least thirty (30) days from the date of publication in the Federal 
Register within which to submit comments to the Commission.
    (c) Institution of an investigation. Within thirty (30) days after 
the close of the period for public comments following publication of the 
receipt of a request, the Commission shall determine whether the request 
shows changed circumstances sufficient to warrant a review and, if so, 
shall institute a review investigation. The Commission may also 
institute a review investigation on its own initiative. The review 
investigation shall be instituted by notice published in the Federal 
Register and shall be completed within one hundred twenty (120) days of 
the date of such publication. If the Commission determines that a 
request does not show changed circumstances sufficient to warrant a 
review, the request shall be dismissed and a notice of the dismissal 
published in the Federal Register stating the reasons therefor.
    (d) Conduct of review investigation. The procedures set forth in 
subpart C of part 207 shall apply to all investigations instituted under 
this section.

[56 FR 11929, Mar. 21, 1991, as amended at 63 FR 30607, June 5, 1998]



Sec. 207.46  Investigations concerning certain countervailing duty orders.

    (a) Definitions. For purposes of this section:
    (1) Requesting party means an interested party described in section 
771(9) (C), (D), (E), (F), or (G) of the Act.
    (2) Order means a countervailing duty order issued under section 303 
of the Act as to which the requirement of an affirmative determination 
of material injury under section 303(a)(2) of the Act was not applicable 
at the time such order was issued.
    (3) WTO Agreement means the Agreement Establishing the World Trade 
Organization entered into on April 15, 1994.
    (b) Request for review. A requesting party may file with the 
Commission a request for an investigation under section 753 of the Act 
within the time period established by section 753(a)(3) of the Act. The 
request should contain the following information:
    (1) A description and identification of the relevant domestic like 
product, the industry in the United States producing that product that 
is likely to be materially injured by reason of imports of the subject 
merchandise if the Order is revoked, and each individual member of that 
industry.
    (2) Information reasonably available to the requesting party 
concerning the names and addresses of all known enterprises believed to 
be manufacturing, producing, exporting, or importing the subject 
merchandise;
    (3) Information reasonably available to the requesting party 
documenting that the industry described in paragraph (b)(1) of this 
section is likely to be materially injured by reason of subject imports 
if the Order is revoked, including:
    (i) Information concerning the capacity, production, sales, market 
share,

[[Page 110]]

inventories, employment, wages, productivity, profits, ability to raise 
capital, and development and production efforts of the industry 
described in paragraph (b)(1) of this section.
    (ii) Information concerning current and projected production 
capacity in the exporting country of the subject merchandise, 
inventories of the subject merchandise, and the existence of barriers to 
the importation of such merchandise into countries other than the United 
States.
    (4) Information concerning any scope and anticircumvention rulings 
issued by the administering authority with respect to the Order.
    (c) Initiation of Investigation. (1) Upon the receipt of a timely 
filed request for a section 753 investigation satisfying the 
requirements of paragraph (b) of this section, the Secretary shall 
publish a notice of initiation of such investigation in the Federal 
Register.
    (2) Subject to paragraph (c)(3) of this section, a section 753 
investigation shall be completed within one year of the date of 
publication of the notice of initiation of such investigation in the 
Federal Register.
    (3) The Commission may take more than one year to complete section 
753 investigations for which requests for investigations are received 
within one year after the date on which the WTO Agreement enters into 
force with respect to the United States. All such investigations must be 
completed within four years of that date, however. In determining 
whether to extend the completion date for a section 753 investigation, 
the Commission shall consult with the administering authority. Grounds 
for extending completion include, but are not limited to, the desire to 
conduct investigations involving the same or similar domestic industries 
and domestic like products on a simultaneous basis, and the desire to 
efficiently manage the Commission's caseload.
    (d) Conduct of Investigations. The procedures set forth in subparts 
A and C of this part shall apply to all investigations initiated under 
this section.
    (e) When No Request for Review Is Filed. When there has been no 
properly filed and sufficient request for a section 753 investigation of 
an Order, the Commission shall notify the administering authority that a 
negative determination has been made under section 753(a) of the Act 
with respect to that Order.
    (f) Pending and Suspended Section 303 Investigations. If, on the 
data on which a country becomes a signatory to the Agreement on 
Subsidies and Countervailing Measures referred to in section 101(d)(12) 
of the Uruguay Round Agreements Act, there is a section 303 
countervailing duty investigation in progress or suspended with respect 
to that country's merchandise for which the requirement of a material 
injury determination under section 303(a)(2) of the Act was not 
applicable at the time the investigation was initiated, the Commission 
shall commence an investigation pursuant to the provisions of section 
753(c) of the Act with respect to pending investigations and suspended 
investigations to which section 704(i)(1)(B) of the Act applies.
    (g) Request for simultaneous section 751(c) review. (1) A requesting 
party who requests a section 753 review may at the same time request 
from the Commission and the administering authority a review under 
section 751(c) of the Act of a countervailing or antidumping duty order 
involving the same or comparable subject merchandise.
    (2) Should the administering authority, after consulting with the 
Commission, determine to initiate a section 751(c) review, the 
Commission shall conduct a consolidated review under sections 751(c) and 
753 of the Act of the orders involving the same or comparable subject 
merchandise. Any such consolidated review shall be conducted under the 
applicable procedures set forth in subparts A and F of this part.
    (3) Should the administering authority, after consulting with the 
Commission, determine not to initiate a section 751(c) review, the 
Commission will consider the request for a section 753 review pursuant 
to the procedures established in this section.

[60 FR 23, Jan. 3, 1995, as amended at 63 FR 30607, June 5, 1998]



                        Subpart E_Judicial Review

    Source: 56 FR 11930, Mar. 21, 1991, unless otherwise noted.

[[Page 111]]



Sec. 207.50  Judicial review.

    (a) In general. Persons entitled to judicial review under section 
516A of the Act may seek review in the U.S. Court of International 
Trade.
    (b) Transmittal of record. In the event a Commission determination 
is appealed to the U.S. Court of International Trade under section 516A, 
a copy of the record in the investigation before the Commission, as such 
record is defined in Sec. 207.2(f), or a certified list of all items 
therein, shall be transmitted to the court by the Secretary in 
accordance with the rules of the court.
    (c) Service of process. The Commission's General Counsel shall be 
the Commission's agent for service of process in cases arising under 
section 516A of the Act.



Sec. 207.51  Judicial review of denial of application for disclosure of 

certain business proprietary information under administrative protective 

order.

    (a) In general. Persons entitled to judicial review under section 
777(c)(2) of the Commission determination not to disclose business 
proprietary information may apply to the U.S. Court of International 
Trade for an order directing the Commission to make the information 
involved available.
    (b) Transmittal of record. In the event a court order is sought 
under section 777(c)(2) requiring the Commission to disclose business 
proprietary information, the Secretary shall within 20 days after 
service of a summons and complaint upon the Commission transmit to the 
court under seal the business proprietary information involved along 
with pertinent parts of the record.
    (c) Pertinent parts of the record. The pertinent parts of the record 
shall consist of:
    (1) The application for Commission disclosure together with any 
documents filed in support thereof or in opposition thereto.
    (2) Any Government memoranda relating to the Commission's 
determination, and
    (3) The Commission's action on the application.
    (d) Service of process. The Commission's General Counsel shall be 
the Commission's agent for service of process in cases under section 
777(c)(2) of the Act.



                       Subpart F_Five-Year Reviews

    Source: 63 FR 30608, June 5, 1998, unless otherwise noted.



Sec. 207.60  Definitions.

    For purposes of this subpart:
    (a) The term five-year review means a five-year review conducted 
pursuant to section 751(c) of the Act. The provisions of part 201 of 
this chapter and subpart A of this part pertaining to ``investigations'' 
are generally applicable to five-year reviews, unless superseded by a 
provision in this subpart of more specific application.
    (b) The term expedited review means a five-year review conducted by 
the Commission pursuant to section 751(c)(3)(B) of the Act.
    (c) The term full review means a five-year review that has not been 
expedited by the Commission or terminated pursuant to section 751(c)(3) 
of the Act.
    (d) The term notice of institution shall refer to the notice of 
institution of five-year review that the Commission shall publish in the 
Federal Register requesting that interested parties provide information 
to the Commission upon initiation of a five-year review.



Sec. 207.61  Responses to notice of institution.

    (a) When information must be filed. Responses to the notice of 
institution shall be submitted to the Commission no later than 30 days 
after its publication in the Federal Register.
    (b) Information to be filed with the Secretary. The notice of 
institution shall direct each interested party to make a filing pursuant 
to Sec. Sec. 201.6, 201.8 and 207.3 of this chapter containing the 
following:
    (1) A statement expressing its willingness to participate in the 
review by providing information requested by the Commission;
    (2) A statement regarding the likely effects of revocation of the 
order(s) or termination of the suspended investigation(s) under review;
    (3) Such information or industry data as the Commission may specify 
in the notice of institution.

[[Page 112]]

    (c) When requested information cannot be supplied. Any interested 
party that cannot furnish the information requested by the notice of 
institution in the requested form and manner shall, promptly after 
issuance of the notice, notify the Commission, provide a full 
explanation of why it cannot furnish the requested information, and 
indicate alternative forms in which it can provide equivalent 
information. The Commission may modify its requests to the extent 
necessary to avoid posing an unreasonable burden on that party.
    (d) Submissions by persons other than interested parties. Any person 
who is not an interested party may submit to the Commission, in a filing 
satisfying the requirements of Sec. 201.8 of this chapter, information 
relevant to the Commission's review no later than 50 days after 
publication of the notice of institution in the Federal Register.

[44 FR 76468, Dec. 26, 1979, as amended at 74 FR 2849, Jan. 16, 2009]



Sec. 207.62  Rulings on adequacy and nature of Commission review.

    (a) Basis for rulings on adequacy. The Commission will assess the 
adequacy of aggregate interested party responses to the notice of 
institution with respect to each order or suspension agreement under 
review and, where the underlying affirmative Commission determination 
found multiple domestic like products, on the basis of each domestic 
like product.
    (b) Comments to the Commission. (1) Comments to the Commission 
concerning whether the Commission should conduct an expedited review may 
be submitted by:
    (i) Any interested party that is a party to the five-year review and 
that has responded to the notice of institution; and
    (ii) Any party, other than an interested party, that is a party to 
the five-year review.
    (2) Comments shall be submitted within the time specified in the 
notice of institution. In a grouped review, only one set of comments 
shall be filed per party. Comments shall not exceed fifteen (15) pages 
of textual material, double spaced and single sided, on stationery 
measuring 8\1/2\x11 inches. Comments containing new factual information 
shall be disregarded.
    (c) Notice of scheduling of full review. If the Commission concludes 
that interested parties' responses to the notice of institution are 
adequate, or otherwise determines that a full review should proceed, 
investigative activities pertaining to that review will continue. The 
Commission will publish in the Federal Register a notice of scheduling 
pertaining to subsequent procedures in the review.
    (d) Procedures for expedited reviews. (1) If the Commission 
concludes that interested parties' responses to the notice of 
institution are inadequate, it may decide to conduct an expedited 
review. In that event, the Commission shall direct the Secretary to 
issue a notice stating that the Commission has decided to conduct an 
expedited review and inviting those parties to the review described in 
paragraph (d)(2) of this section to file written comments with the 
Secretary on what determination the Commission should reach in the 
review. The date on which such comments must be filed will be specified 
in the notice to be issued by the Secretary. Comments containing new 
factual information shall be disregarded.
    (2) The following parties may file the comments described in 
paragraph (d)(1) of this section:
    (i) Any interested party that is a party to the five-year review and 
that has filed an adequate response to the notice of institution; and
    (ii) Any party, other than an interested party, that is a party to 
the five-year review.
    (3) Any person that is neither a party to the five-year review nor 
an interested party may submit a brief written statement (which shall 
not contain any new factual information) pertinent to the review within 
the time specified for the filing of written comments.
    (4) The Director shall prepare and place in the record, prior to the 
date on which the comments described in paragraph (d)(1) of this section 
must be filed, a staff report containing information concerning the 
subject matter of the review. A version of the staff report containing 
business proprietary information shall be placed in the nonpublic record 
and made available to persons

[[Page 113]]

authorized to receive business proprietary information under Sec. 
207.7, and a nonbusiness proprietary version of the staff report shall 
be placed in the public record.
    (e) Use of facts available. The Commission's determination in an 
expedited review will be based on the facts available, in accordance 
with section 776 of the Act.

[63 FR 30608, June 5, 1998, as amended at 68 FR 32978, June 3, 2003]



Sec. 207.63  Circulation of draft questionnaires.

    (a) The Director shall circulate draft questionnaires to the parties 
for comment in each full review.
    (b) Any party desiring to comment on the draft questionnaires shall 
submit such comments in writing to the Commission within a time 
specified by the Director. All requests for collecting new information 
should be presented at this time. The Commission will disregard 
subsequent requests for collection of new information absent a showing 
that there is a compelling need for the information and that the 
information could not have been requested in the comments on the draft 
questionnaires.



Sec. 207.64  Staff reports.

    (a) Prehearing staff report. The Director shall prepare and place in 
the record, prior to the hearing, a prehearing staff report containing 
information concerning the subject matter of the five-year review. A 
version of the staff report containing business proprietary information 
shall be placed in the nonpublic record and made available to persons 
authorized to receive business proprietary information under Sec. 
207.7, and a nonbusiness proprietary version of the staff report shall 
be placed in the public record.
    (b) Final staff report. After the hearing, the Director shall revise 
the prehearing staff report and submit to the Commission, prior to the 
Commission's determination, a final version of the staff report. The 
final staff report is intended to supplement and correct the information 
contained in the prehearing staff report. The Director shall place the 
final staff report in the record. A public version of the final staff 
report shall be made available to the public and a business proprietary 
version shall also be made available to persons authorized to receive 
business proprietary information under Sec. 207.7.

[63 FR 30608, June 5, 1998, as amended at 68 FR 32978, June 3, 2003]



Sec. 207.65  Prehearing briefs.

    Each party to a five-year review may submit a prehearing brief to 
the Commission on the date specified in the scheduling notice. A 
prehearing brief shall be signed and shall include a table of contents. 
The prehearing brief should present a party's case concisely and shall, 
to the extent possible, refer to the record and include information and 
arguments which the party believes relevant to the subject matter of the 
Commission's determination.



Sec. 207.66  Hearing.

    (a) In general. The Commission shall hold a hearing in each full 
review. The date of the hearing shall be specified in the scheduling 
notice.
    (b) Procedures. Hearing procedures in five-year reviews will conform 
to those for final phase antidumping and countervailing duty 
investigations set forth in Sec. 207.24.



Sec. 207.67  Posthearing briefs and statements.

    (a) Briefs from parties. Any party to a five-year review may file 
with the Secretary a posthearing brief concerning the information 
adduced at or after the hearing within a time specified in the 
scheduling notice or by the presiding official at the hearing. No such 
posthearing brief shall exceed fifteen (15) pages of textual material, 
double spaced and single sided, on stationery measuring 8\1/2\x11 
inches. In addition, the presiding official may permit persons to file 
answers to questions or requests made by the Commission at the hearing 
within a specified time. The Secretary shall not accept for filing 
posthearing briefs or answers which do not comply with this section.
    (b) Statements from nonparties. Any person other than a party may 
submit a brief written statement of information pertinent to the review 
within the time specified for the filing of posthearing briefs.

[[Page 114]]



Sec. 207.68  Final comments on information.

    (a) The Commission shall specify a date after the filing of 
posthearing briefs on which it will disclose to all parties to the five-
year review all information it has obtained on which the parties have 
not previously had an opportunity to comment. Any such information that 
is business proprietary information will be released to persons 
authorized to obtain such information pursuant to Sec. 207.7.
    (b) The parties shall have an opportunity to file comments on any 
information disclosed to them after they have filed their posthearing 
brief pursuant to Sec. 207.67. Comments shall only concern such 
information, and shall not exceed 15 pages of textual material, double 
spaced and single-sided, on stationery measuring 8\1/2\x11 inches. A 
comment may address the accuracy, reliability, or probative value of 
such information by reference to information elsewhere in the record, in 
which case the comment shall identify where in the record such 
information is found. Comments containing new factual information shall 
be disregarded. The date on which such comments must be filed will be 
specified by the Commission when it specifies the time that information 
will be disclosed pursuant to paragraph (a) of this section. The record 
shall close on the date such comments are due, except with respect to 
changes in bracketing of business proprietary information in the 
comments permitted by Sec. 207.3(c).



Sec. 207.69  Publication of determinations.

    Whenever the Commission makes a determination concluding a five-year 
review, the Secretary shall serve copies of the determination and, when 
applicable, the nonbusiness proprietary version of the final staff 
report on all parties to the review, and on the administering authority. 
The Secretary shall publish notice of such determination in the Federal 
Register.



  Subpart G_Implementing Regulations for the North American Free Trade 
                                Agreement

    Authority: Sec. 777(d) of the Tariff Act of 1930 (19 U.S.C. 1677f 
(d); secs. 402(g), 405 of the North American Free Trade Agreement 
Implementation Act (107 Stat. 2057, Pub. L. 103-182, Dec. 8, 1993).

    Source: 59 FR 5097, Feb. 3, 1994, unless otherwise noted.



Sec. 207.90  Scope.

    This subpart sets forth the procedures and regulations for 
implementation of Article 1904 of the North American Free Trade 
Agreement under the Tariff Act of 1930, as amended by title IV of the 
North American Free Trade Agreement Implementation Act (19 U.S.C. 1516a 
and 1677f). These regulations are authorized by section 402(g) of the 
North American Free Trade Agreement Implementation Act and 19 U.S.C. 
1335.



Sec. 207.91  Definitions.

    As used in this subpart--
    Administrative Law Judge means the United States Government employee 
appointed under section 310(f) of title 5 of the United States Code to 
conduct proceedings under this part in accordance with section 554 of 
title 5 of the United States Code;
    Agreement means the North American Free Trade Agreement entered into 
among Canada, the United States of America and the United Mexican States 
(``Mexico''); or, with respect to binational panel proceedings between 
Canada and the United States underway as of the date of enactment of the 
Agreement, or any binational panel proceedings that may proceed between 
the United States and Canada following any withdrawal from the Agreement 
by the United States or Canada, the United States-Canada Free Trade 
Agreement entered into between the Government of Canada and the 
Government of the United States of America, effective as of January 1, 
1989;
    Article 1904 Rules means the Rules of Procedure for Article 1904 
Binational Panel Reviews adopted by the United States of America, Canada 
and Mexico pursuant to the Agreement, or where applicable under the 
Agreement, the

[[Page 115]]

Rules of Procedure for Article 1904 Binational Panel Reviews adopted by 
the United States of America and Canada pursuant to the United States-
Canada Free Trade Agreement, as amended;
    Canadian Secretary means the Secretary of the Canadian section of 
the Secretariat and includes any person authorized to act on the 
Secretary's behalf;
    Charged party means a person who is charged by the Commission with 
committing a prohibited act under 19 U.S.C. 1677f(f)(3);
    Clerical person means a person such as a paralegal, secretary, or 
law clerk who is employed or retained by and under the direction and 
control of an authorized applicant;
    Commission means the United States International Trade Commission;
    Commission Secretary means the Secretary to the Commission;
    Complaint means the complaint referred to in the Article 1904 Rules;
    Counsel means persons described in the definition of counsel of 
record in Rule 3 of the Article 1904 Rules or the ECC Rules, and counsel 
for an interested person who plans to file a timely complaint or notice 
of appearance in the panel review.
    Date of Service means the day a document is deposited in the mail or 
delivered in person;
    Days means calendar days, but if a deadline falls on a weekend or 
United States federal holiday, it shall be extended to the next working 
day;
    Extraordinary challenge committee means the committee established 
pursuant to Annex 1904.13 of the Agreement to review decisions of a 
panel or conduct of a panelist;
    ECC Rules means the Rules of Procedure for Article 1904 
Extraordinary Challenge Committees adopted by the United States of 
America, Canada and Mexico, or where applicable, the Rules of Procedure 
for Article 1904 Extraordinary Challenge Committees adopted by the 
United States of America and Canada pursuant to the United States-Canada 
Free Trade Agreement, as amended;
    Final determination, means ``final determination'' under Article 
1911 of the Agreement;
    Free Trade Area Country means the ``free trade area country'' as 
defined in 19 U.S.C. 1516a(f)(10);
    Investigative attorney means an attorney designated by the Office of 
Unfair Import Investigations to engage in inquiries and proceedings 
under 19 CFR 207.100 et seq.
    Mexican Secretary means the Secretary of the Mexican section of the 
Secretariat and includes any persons authorized to act on the 
Secretary's behalf;
    NAFTA Act means the North American Free Trade Agreement 
Implementation Act, Pub. L. 103-182 (December 8, 1993);
    Notice of Appearance means the notice of appearance provided for by 
Article 1904 Rules or by the ECC Rules;
    Panel review means review of a final determination pursuant to 
chapter 19 of the Agreement, including review by an extraordinary 
challenge committee;
    Party means, for the purposes of 19 CFR 207.100 through 207.120, 
either the investigative attorney(ies) or the charged party(ies);
    Person means, for the purposes of 19 CFR 207.100 through 207.120, an 
individual, partnership, corporation, association, organization, or 
other entity;
    Privileged information means all information covered by the 
provisions of the second sentence of 19 U.S.C. 1677f(f)(1)(A);
    Professional means an accountant, economist, engineer, or other non-
legal specialist who is employed by, or under the direction and control, 
of a counsel;
    Prohibited act means the violation of a protective order, the 
inducement of a violation of a protective order, or the knowing receipt 
of information the receipt of which constitutes a violation of a 
protective order;
    Proprietary information means confidential business information as 
defined in 19 CFR 201.6(a);
    Protective Order means an administrative protective order issued by 
the Commission;
    Relevant FTA Secretary means the Secretary referred to in Article 
1908 of the Agreement;
    Secretariat means the Secretariat established pursuant to Article 
2002 of

[[Page 116]]

the Agreement and includes the Secretariat sections located in Canada, 
the United States, and Mexico;
    Service address means the facsimile number, if any, and address of 
the counsel of record for a person or, where a person is not represented 
by counsel, the facsimile number, if any, and address set out by a 
person in a Request for Panel Review, Complaint or Notice of Appearance 
as the address at which the person may be served or, where a Change of 
Service Address has been filed by a person, the facsimile number, if 
any, and address set out as the service address in that form;
    Service list means the list maintained by the Commission Secretary 
under 19 CFR 201.11(d) of persons in the administrative proceeding 
leading to the final determination under panel review;
    United States Secretary means the Secretary of the United States 
section of the Secretariat and includes any person authorized to act on 
the Secretary's behalf;
    Except as otherwise provided in this subpart, the definitions set 
forth in the Article 1904 Rules and the ECC Rules are applicable to this 
subpart and to any protective orders issued pursuant to this subpart.



Sec. 207.92  Procedures for commencing review of final determinations.

    (a) Notice of Intent to Commence Judicial Review. A Notice of Intent 
to Commence Judicial Review shall contain such information, and be in 
such form, manner, and style, including service requirements, as 
prescribed by the Department of Commerce in its regulations at 19 CFR 
part 356.
    (b) Request for Panel Review. A Request for Panel Review shall 
contain such information, and be in such form, manner, and style, 
including service requirements, as prescribed by the Department of 
Commerce in its regulations at 19 CFR part 356.



Sec. 207.93  Protection of proprietary information during panel and committee 

proceedings.

    (a) Requests for protective orders. A request for access to 
proprietary information pursuant to 19 U.S.C. 1677f(f)(1) shall be made 
to the Secretary of the Commission.
    (b) Persons authorized to receive proprietary information under 
protective order. The following persons may be authorized by the 
Commission to receive access to proprietary information if they comply 
with these regulations and such other conditions imposed upon them by 
the Commission:
    (1) The members of a binational panel or an extraordinary challenge 
committee, any assistant to a member, court reporters and translators;
    (2) Counsel and professionals, provided that the counsel or 
professional does not participate in competitive decision-making, as 
defined in US Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 
1984), for the person represented or for any person that would gain a 
competitive advantage through knowledge of the proprietary information 
sought;
    (3) Clerical persons who are employed or retained by and under the 
direction and control of a person described in paragraph (b) (1), (2), 
(5) or (6) of this section who has been issued a protective order, if 
such clerical persons:
    (i) Are not involved in the competitive decision-making, or the 
support functions for the competitive decision-making, of a participant 
to the proceeding or of any person that would gain a competitive 
advantage through knowledge of the proprietary information sought, and
    (ii) Have agreed to be bound by the terms set forth in the 
application for protective order of the person who retains or employs 
him or her;
    (4) The Secretaries of the United States, Canadian and Mexican 
sections of the Secretariat and members of their staffs;
    (5) Any officer or employee of the United States Government who the 
United States Trade Representative informs the Commission Secretary 
needs access to proprietary information to make recommendations 
regarding the convening of extraordinary challenge committees; and
    (6) Any officer or employee of the Government of Canada or the 
Government of Mexico who the Canadian Minister of Trade or the Mexican 
Secretary of Economia, as the case may be, informs the Commission 
Secretary needs access to proprietary information to

[[Page 117]]

make recommendations regarding the convening of extraordinary challenge 
committees; and
    (7) Counsel representing, and other staff providing support to, the 
investigating authority, the Commission.
    (c) Procedures for obtaining access to proprietary information under 
protective order--(1) Persons who must file an application for release 
under protective order. To be permitted access to proprietary 
information in the administrative record of a determination under panel 
review, all persons described in paragraphs (b)(1), (2), (4), (5), (6), 
or (c)(5)(i) of this section shall file an application for a protective 
order.
    (2) Contents of applications for release under protective order. (i) 
The Commission Secretary shall adopt from time to time forms for 
submitting requests for release pursuant to protective order that 
incorporate the terms of this rule. The Commission Secretary shall 
supply the United States Secretary with copies of the forms for persons 
described in paragraphs (b) (1), (4), (5) and (6) of this section. Other 
applicants may obtain the forms at the Commission Secretary's office at 
500 E Street SW., Washington, DC 20436.
    (ii) Such forms shall require the applicant to submit a personal 
sworn statement that, in addition to such other conditions as the 
Commission Secretary may require, the applicant will:
    (A) Not disclose any proprietary information obtained under 
protective order and not otherwise available to any person other than:
    (1) Personnel of the Commission involved in the particular panel 
review in which the proprietary information is part of the 
administrative record,
    (2) The person from whom the information was obtained,
    (3) A person who is authorized to have access to the same 
proprietary information pursuant to a Commission protective order, and
    (4) A clerical person retained or employed by and under the 
direction and control of a person described in paragraph (b)(1), (2), 
(5), or (6) of this section who has been issued a protective order, if 
such clerical person has signed and dated an agreement, provided to the 
Commission Secretary upon request, to be bound by the terms set forth in 
the application for a protective order of the person who retains or 
employs him or her (the authorized applicant shall be responsible for 
retention and accuracy of such forms and shall be deemed responsible for 
such persons' compliance with the administrative protective order);
    (B) Not use any of the proprietary information released under 
protective order and not otherwise available for purposes other than the 
particular proceedings under Article 1904 of the Agreement;
    (C) Upon completion of panel review, or at such other date as may be 
determined by the Commission Secretary, return to the Commission, or 
certify to the Commission Secretary the destruction of, all documents 
released under the protective order and all other material (such as 
briefs, notes, or charts), containing the proprietary information 
released under the protective order, except that those described in 
paragraph (b)(1) of this section may return such documents and other 
materials to the United States Secretary. The United States Secretary 
may retain a single file copy of each document for the official file.
    (D) Update information in the application for protective order as 
required by the protective order; and
    (E) Acknowledge that the person becomes subject to the provisions of 
19 U.S.C. 1677f(f) and to this subpart, as well as corresponding 
provisions of Canadian and Mexican law on disclosure undertakings 
concerning proprietary information.
    (3) Timing of applications. An application for any person described 
in paragraph (b)(1) or (b)(2) of this section may be filed after a 
notice of request for panel review has been filed with the Secretariat. 
A person described in paragraph (b)(4) of this section shall file an 
application immediately upon assuming official responsibilities in the 
United States, Canadian or Mexican Secretariat. An application for any 
person described in paragraph (b)(5) or (b)(6) of this section may be 
filed at any time after the United States Trade Representative, the 
Canadian Minister of Trade, or the Mexican Secretary of

[[Page 118]]

Economia, as the case may be, has notified the Commission Secretary that 
such person requires access.
    (4) Filing and service of applications--(i) Applications of persons 
described in paragraph (b)(1) of this section. A person described in 
paragraph (b)(1) of this section shall submit the completed original of 
the form to the United States Secretary, NAFTA Secretariat, room 2061, 
U.S. Department of Commerce, Pennsylvania Avenue and 14th Street, NW., 
Washington, DC 20230. The United States Secretary, in turn, shall file 
the original plus three (3) copies of the application with the 
Commission Secretary.
    (ii) Applications of persons described in paragraph (b)(2) of this 
section--(A) Filing. A person described in paragraph (b)(2) of this 
section, concurrent with the filing of a complaint or notice of 
appearance in the panel review on behalf of the participant represented 
by such person, shall file the completed original of the form (NAFTA APO 
Form C) and three (3) copies with the Commission Secretary, and four (4) 
copies with the United States Secretary.
    (B) Service. If an applicant files before the deadline for filing 
notices of appearance for the panel review, the applicant shall 
concurrently serve each person on the service list with a copy of the 
application. If the applicant files after the deadline for filing 
notices of appearance for the panel review, the applicant shall serve 
each participant in the panel review in accordance with the applicable 
Article 1904 Rules and ECC Rules. Service on a person may be effected by 
delivering a copy to the person's service address; by sending a copy to 
the person's service address by facsimile transmission, expedited 
courier service, expedited mail service; or by personal service.
    (iii) Applications of persons described in paragraph (b)(4) of this 
section. A person described in paragraph (b)(4) of this section shall 
file the original and three (3) copies of the protective order 
application with the Commission Secretary.
    (iv) Applications of persons described in paragraph (b)(5) of this 
section. A person described in paragraph (b)(5) of this section shall 
file the original and three (3) copies with the Commission Secretary and 
four (4) copies with the United States Secretary.
    (v) Applications of persons described in paragraph (b)(6) of this 
section. A person described in paragraph (b)(6) of this section shall 
submit the completed original of the protective order application to the 
relevant FTA Secretary. The relevant FTA Secretary in turn, shall file 
the original and three (3) copies with the Commission Secretary.
    (5) Persons who retain access to proprietary information under a 
protective order issued during the administrative proceedings. (i) If 
counsel or a professional has been granted access in an administrative 
proceeding to proprietary information under a protective order that 
contains a provision governing continued access to that information 
during panel review, and that counsel or professional retains the 
proprietary information more than fifteen (15) days after a First 
Request for Panel Review is filed with the Secretariat, that counsel or 
professional, and such clerical persons with access on or after that 
date, become immediately subject to the terms and conditions of NAFTA 
APO Form C maintained by the Commission Secretary on that date including 
provisions regarding sanctions for violations thereof.
    (ii) Any person described in paragraph (c)(5)(i) of this section, 
concurrent with the filing of a complaint or notice of appearance in the 
panel review on behalf of the participant represented by such person, 
shall:
    (A) File the completed original of the form (NAFTA APO Form C) and 
three (3) copies with the Commission Secretary; and
    (B) File four (4) copies of the completed NAFTA APO Form C with the 
United States Secretary.
    (iii) Any person described in paragraph (c)(5)(i) of this section 
must submit a new application for a protective order at the commencement 
of a panel review.
    (d) Issuance of protective orders--(1) Applicants described in 
paragraphs (b) (1), (4), (5) and (6) of this section. Upon approval of 
an application of persons described in paragraphs (b)(1), (4), (5), or 
(6) of this section, the Commission Secretary shall issue a protective 
order

[[Page 119]]

permitting release of proprietary information. Any member of a 
binational panel proceeding initiated under the United States-Canada 
Free Trade Agreement to whom the Commission Secretary issues a 
protective order must countersign it and return one copy of the 
countersigned order to the United States Secretary. Any other applicant 
under paragraph (b)(1) of this section must file a copy of the order 
with the United States Secretary.
    (2) Applicants described in paragraph (b)(2) of this section. (i) 
The Commission shall not rule on an application filed by a person 
described in paragraph (b)(2) until ten (10) days after the request is 
filed unless there is a compelling need to rule more expeditiously. Any 
person may file an objection to the application within seven (7) days of 
the application's filing date, stating the specific reasons why the 
Commission should not grant the application. One (1) copy of the 
objection shall be served on the applicant and on all persons who were 
served with the application. Any reply to an objection will be 
considered if it is filed and served before the Commission Secretary 
renders a decision. Service of objections and replies shall be made in 
accordance with paragraph (c)(4)(ii)(B) of this section.
    (ii) Denial of application. The Commission's Secretary may deny an 
application by serving a letter notifying the applicant of the decision 
and the reasons therefor within fourteen (14) days of the receipt of the 
application. The letter shall advise the applicant of the right to 
appeal to the Commission. Any appeal must be made within five (5) days 
of the service of the Commission Secretary's letter.
    (iii) Appeal from denial of an application. An appeal from a denial 
of a request must be addressed to the Chairman, United States 
International Trade Commission, 500 E Street, SW., Washington, DC 20436. 
Such appeal must be served in accordance with paragraph (c)(4)(ii)(B) of 
this section. The Commission shall make a final decision granting or 
denying the appeal within thirty (30) days from the day on which the 
application was filed with the Commission Secretary.
    (iv) Approval of the application. If the Commission Secretary does 
not deny an application pursuant to paragraph (d)(2)(ii) of this 
section, the Commission shall, by the fifteenth day following the 
receipt of the application, issue a protective order permitting the 
release of proprietary information to the applicant.
    (v) Filing of protective orders. If a protective order is issued to 
a person described in paragraph (b)(2) of this section, the person shall 
immediately file one (1) copy of the protective order with the United 
States Secretary.
    (e) Retention of protective orders; service list. The Commission 
Secretary shall retain, in a public file, copies of applications 
granted, including any updates thereto, and protective orders issued 
under this section, including protective orders filed in accordance with 
paragraph (b)(6)(ii) of this section. The Secretary shall establish a 
list of persons authorized to receive proprietary information in a 
review, including parties whose applications have been granted.
    (f) Filing of amendments to granted applications. Any person who has 
been issued a protective order under this section shall:
    (1) If a person described in paragraph (b)(1) of this section, 
submit any amendments to the application for a protective order to the 
United States Secretary, who shall file the original and three (3) 
copies with the Commission Secretary;
    (2) If a person described in paragraph (b)(2) of this section, file 
the original and three (3) copies of any amendments to the application 
with the Commission Secretary and four (4) copies with the United States 
Secretary; or
    (3) If any other person, file the original and three (3) copies of 
any amendments to the application with the Commission Secretary.
    (g) Modification or revocation of protective orders. (1) Any person 
may file with the Commission Secretary a request that a protective order 
issued under this section be modified or revoked because of changed 
conditions of fact or law, or on grounds of the public interest. The 
request shall state the changes desired and include any supporting 
materials and arguments. The person filing the request shall serve a 
copy of

[[Page 120]]

the request upon the person to whom the protective order was issued.
    (2) Any person may file a response to the request within twenty (20) 
days after it is filed, unless the Commission issues a notice indicating 
otherwise. After consideration of the request and any responses thereto, 
the Commission shall take such action as it deems appropriate.
    (3) If a request filed under this paragraph alleges that a person is 
violating the terms of a protective order, the Commission may treat the 
request as a report of violation under Sec. 207.101 of this subpart.
    (4) The Commission may also modify or revoke a protective order on 
its own initiative.
    (5) If the Commission revokes, amends or modifies a person's 
protective order, it shall provide to the person, the United States 
Secretary and all participants a copy of the Notice of Revocation, 
amendment or modification.

[59 FR 5097, Feb. 3, 1994, as amended at 70 FR 8512, Feb. 22, 2005]



Sec. 207.94  Protection of privileged information during panel and committee 

proceedings.

    When and if a panel or extraordinary challenge committee decides 
that the Commission is required, pursuant to the United States law, to 
grant access pursuant to protective order to information for which the 
Commission has claimed a privilege, any individual to whom a panel or 
extraordinary challenge committee has directed the Commission release 
information and who is otherwise within the category of individuals 
eligible to receive proprietary information pursuant to 19 CFR 
207.93(b), may file an application for a protective order with the 
Commission. Upon receipt of such application, the Commission Secretary 
shall certify to the Commission that a panel or extraordinary challenge 
committee has required the Commission to release such information to 
specified persons, pursuant to 19 U.S.C. 1677f(f)(1). Twenty-four hours 
following such certification, the Commission Secretary shall issue a 
protective order releasing such information to any authorized applicant 
subject to terms and conditions equivalent to those described in 19 CFR 
207.93(c)(2).

 Procedures for Imposing Sanctions for Violation of the Provisions of a 
     Protective Order Issued During Panel and Committee Proceedings



Sec. 207.100  Sanctions.

    (a) A person, other than a person exempted from this regulation by 
the provisions of 19 U.S.C. 1677f(f)(4), who is determined under this 
subpart to have committed a prohibited act, may be subject to one or 
more of the following sanctions:
    (1) A civil penalty not to exceed $100,000 for each violation, each 
day of a continuing violation constituting a separate violation;
    (2) Debarment from practice in any capacity before the Commission, 
which disbarment may, in appropriate circumstances, include such 
person's partners, associates, employers and employees, for a designated 
time period following publication of a determination that the protective 
order has been breached;
    (3) Denial of further access to proprietary or privileged 
information covered by the breached protective order or to proprietary 
information in future Commission proceedings;
    (4) An official reprimand by the Commission;
    (5) In the case of an attorney, accountant, or other professional, 
referral of the facts underlying the prohibited act to the ethics panel 
or other disciplinary body of the appropriate professional association 
or licensing authority;
    (6) When appropriate, referral of the facts underlying the violation 
to the United States Trade Representative or his or her designees, or to 
another government agency; and
    (7) Any other administrative sanctions as the Commission determines 
to be appropriate.
    (b) Each partner, associate, employer, and employee described in 
paragraph (a)(2) of this section is entitled to all the administrative 
rights set forth in this subpart.
    (c) For the purposes of this subpart, the knowing receipt of 
information the receipt of which constitutes a violation

[[Page 121]]

of a protective order includes, but is not limited to, the reading or 
unauthorized dissemination of the information covered by a protective 
order by a person who knows or should reasonably believe that he or she 
is not authorized to read or disseminate such information.



Sec. 207.101  Reporting of prohibited act and commencement of investigation.

    (a) Any person who has information indicating that a prohibited act 
has been committed shall immediately report all pertinent facts relating 
thereto to the Commission Secretary.
    (b) Upon receipt, the Commission Secretary shall record the 
information, assign an investigation number, and forward all information 
he or she received to the Office of Unfair Import Investigations.
    (c) As expeditiously as possible, the Office of Unfair Import 
Investigations shall conduct an inquiry to determine whether there is 
reasonable cause to believe that a person or persons have committed a 
prohibited act. At any time, the Office of Unfair Import Investigations 
may request that the Commission assign an administrative law judge to 
oversee the inquiry.
    (d) At the conclusion of the inquiry, the Office of Unfair Import 
Investigations shall assess whether the available information is 
sufficient to provide reasonable cause to believe that a person or 
persons have committed a prohibited act.



Sec. 207.102  Initiation of proceedings.

    (a) Upon completion of the inquiry,
    (1) If the Office of Unfair Import Investigations concludes that 
there is not reasonable cause to believe that a person or persons have 
committed a prohibited act, the Office of Unfair Import Investigations 
shall:
    (i) Submit a report to the Commission; and
    (ii) Unless the Commission directs otherwise, the file shall be 
closed and returned to the Commission Secretary.
    (2) If the Office of Unfair Import Investigations concludes that 
there is reasonable cause to believe that a person or persons have 
committed a prohibited act, the Office of Unfair Import Investigations 
shall:
    (i) Make a recommendation to the Commission regarding whether and to 
what extent it is appropriate to notify the person whose proprietary 
information may have been compromised; and
    (ii) Submit a report and recommendation to the Commission regarding 
whether to initiate sanctions proceedings or to take other appropriate 
action.
    (b) The Commission may make any appropriate determination regarding 
the initiation of sanctions proceedings, including rejecting, approving, 
or approving and amending any recommendation made by the Office of 
Unfair Import Investigations.
    (c) If the Commission determines that it is appropriate to issue a 
charging letter, the Commission shall appoint an administrative law 
judge to oversee the proceeding and the Commission Secretary shall 
initiate a proceeding under this subpart by issuing a charging letter as 
set forth in 19 CFR 207.103.
    (d) If the Commission determines that it is appropriate to initiate 
proceedings, but that the party to be charged is beyond the jurisdiction 
of the Commission and within the jurisdiction of another Free Trade Area 
country, or that for other reasons an authorized agency of another Free 
Trade Area country would be the more appropriate forum for initiation of 
a proceeding, the Commission shall take the necessary steps for issuance 
of a letter requesting the authorized agency of another Free Trade Area 
country to initiate proceedings under applicable law on the basis of an 
alleged prohibited act.
    (e) The Commission may make any determination regarding notification 
about the alleged prohibited act and the relevant underlying facts to 
the persons who submitted the proprietary information that allegedly has 
been disclosed. A determination by the Commission on this subject does 
not foreclose the administrative law judge from redetermining at any 
time during the hearing whether notification to the compromised party is 
appropriate.
    (f) If the Commission determines that it is not appropriate to issue 
a

[[Page 122]]

charging letter or to refer the facts to the authorized agency of 
another Free Trade Area country, the file shall be closed and returned 
to the Commission Secretary, unless the Commission directs otherwise.
    (g) All aspects of the inquiry shall remain confidential, except as 
deemed reasonably necessary to the Office of Unfair Import 
Investigations to gather relevant information and to protect the 
interests of the person who submitted the proprietary information, or 
except as otherwise ordered by the Commission. Except as the Commission 
may otherwise order, the Commission Secretary shall maintain all closed 
investigatory files in confidence to the extent permitted by law, and 
shall destroy any documentary evidence containing allegations of a 
prohibited act for which no proceeding is initiated one year after the 
file is closed.



Sec. 207.103  Charging letter.

    (a) Contents of charging letter. Each charged party shall be served 
by the Commission with a copy of a charging letter and any accompanying 
motion for interim measures, as provided for in 19 CFR 207.106. The 
charging letter shall include:
    (1) Allegations concerning a prohibited act;
    (2) A citation to Sec. 207.100 of this subpart, for a listing of 
sanctions that may be imposed for a prohibited act;
    (3) A statement that a proceeding has been initiated and that an APA 
hearing will be held before an administrative law judge;
    (4) A statement that the charged party or his or her attorney may 
request the issuance of an appropriate administrative protective order 
to obtain access to the information upon which the charge is based;
    (5) A statement that the charged party has a right to retain an 
attorney at the charged party's own expense for purposes of 
representation; and
    (6) A statement that the charged party has the right to request in 
the response described in Sec. 207.104 of this subpart that the 
proceedings remain confidential to the extent practicable.
    (b) Service of charging letter. (1) The charging letter shall be 
served in a double envelope. The inner envelope shall indicate that it 
is to be opened only by the addressee. Service of a charging letter 
shall be made by one of the following methods:
    (i) Mailing a copy by registered or certified mail addressed to the 
charged party at the party's last known permanent address; or
    (ii) Personal service; or
    (iii) Any other method acceptable under Rule 4 of the Federal Rules 
of Civil Procedure.
    (2) Service shall be evidenced by a certificate of service signed by 
the person making such service.
    (c) Confidentiality of charging letter. Prior to entry of an order 
by the administrative law judge under Sec. 207.105 of this subpart, the 
charging letter will be confidential and disclosed only to necessary 
Commission staff and the charged parties.
    (d) Amendment of charging letter. (1) At any time after proceedings 
have been initiated, the investigative attorney may move for leave to 
amend or withdraw the charging letter.
    (2) If the administrative law judge determines that the charging 
letter should be amended to include additional parties, the judge shall 
issue a recommended determination to that effect. The Commission shall 
review the recommended determination, and issue a determination granting 
or denying the motion to amend the charging letter to include additional 
parties.
    (3) Upon motion, the administrative law judge may grant leave to 
amend the charging letter for good cause shown upon such conditions as 
are necessary to avoid prejudicing the public interest and the rights of 
the parties already charged.
    (4) Any amended charging letter shall be served upon all charged 
parties in the form and manner set forth in paragraphs (a) and (b) of 
this section.



Sec. 207.104  Response to charging letter.

    (a) Time for filing. A charged party shall have twenty (20) days 
from the date of service of the charging letter within which to file a 
written response to the allegations made in the charging letter unless 
otherwise ordered by the administrative law judge.

[[Page 123]]

    (b) Form and content. Each response shall be under oath and signed 
by the charged party or its duly authorized officer, attorney, or agent, 
with the name, address, and telephone number of the same. Each charged 
party shall respond to each allegation in the charging letter, and may 
set forth a concise statement of the facts constituting each ground of 
defense. There shall be a specific admission or denial of each fact 
alleged in the charging letter, or if the charged party is without 
knowledge of any such fact, a statement to that effect.
    (c) Request for confidentiality. The response shall contain a 
statement as to whether the charged party seeks an order to maintain the 
confidentiality of all or part of the proceedings to the extent 
practicable, pursuant to Sec. 207.105 of this subpart.



Sec. 207.105  Confidentiality.

    (a) Protection of proprietary and privileged information. As the 
administrative law judge deems reasonably necessary for the preparation 
of the defense of a charged party, the attorney for the charged party 
may be granted access in these proceedings to proprietary information or 
to the privileged information, the disclosure of which is the subject of 
the proceedings. Any such access shall be under protective order 
consistent with the provisions of this subpart.
    (b) Confidentiality of proceedings. Upon the request of any charged 
party pursuant to Sec. 207.106 of this subpart, the administrative law 
judge will issue an appropriate confidentiality order. This order will 
provide for the confidentiality, to the extent practicable and permitted 
by law, of information relating to allegations concerning the commitment 
of a prohibited act, consistent with public policy considerations and 
the needs of the parties in conducting the sanctions proceedings. The 
order will provide that all proceedings under this provision shall be 
kept confidential within the terms of the order, except to the extent 
that a discussion of such proceedings is incorporated into a published 
final decision of the Commission. Any confidential information not 
disclosed in such decision will remain protected.



Sec. 207.106  Interim measures.

    (a) At any time after proceedings are initiated, the administrative 
law judge, upon motion, or on his or her own initiative, may issue a 
recommended determination to revoke the allegedly-violated protective 
order, to disclose information about the proceedings that would 
otherwise be kept confidential, or to take other appropriate interim 
measures.
    (b) Before issuing a determination recommending interim sanctions, 
the administrative law judge shall afford a party against whom such 
measures are proposed the opportunity to oppose them. The administrative 
law judge shall ordinarily decide any motion under this section no more 
than twenty (20) days after it is filed.
    (c) The Commission shall review any recommended determination 
regarding the imposition of interim measures within twenty (20) days 
from its issuance or such other time as it may order. The Commission may 
impose any appropriate interim sanctions.
    (d) The administrative law judge may recommend to the Commission 
that interim measures be modified or revoked. The Commission shall rule 
on such recommendation within ten (10) days after its issuance or such 
other time as it may order.
    (e) The Commission Secretary shall immediately notify the 
Secretariat of any interim measures that revoke or modify an outstanding 
protective order in an ongoing panel review. The Commission Secretary 
shall also immediately notify the Secretariat of any revocation or 
modification of an interim measure.



Sec. 207.107  Motions.

    (a) Presentation and disposition. (1) After issuance of the charging 
letter and while part of the proceeding is pending before the 
administrative law judge, all motions relating to that part of the 
proceeding shall be addressed to the administrative law judge.
    (2) While part of a proceeding is pending before the Commission, all 
motions relating to that part of the proceeding shall be addressed to 
the Chairman of the Commission. All written motions shall be filed with 
the Commission Secretary and served upon all parties.

[[Page 124]]

    (b) Content. All written motions shall state the particular order, 
ruling, or action desired and the grounds therefor.
    (c) Responses. Any response to a motion shall be filed within ten 
(10) days after service of the motions, or within such longer or shorter 
time as may be designated by the administrative law judge or the 
Commission. The moving party shall have no right to reply, except as 
permitted by the administrative law judge or the Commission.
    (d) Service. All motions, responses, replies, briefs, petitions, and 
other documents filed in sanctions proceedings under this subpart shall 
be served by the party filing the document upon each other party. 
Service shall be made upon the attorney for the party unless the 
administrative law judge or the Commission orders otherwise.



Sec. 207.108  Preliminary conference.

    As soon as practicable after the response to the charging letter is 
filed, the administrative law judge shall direct counsel or other 
representatives for the parties to meet with him or her at a preliminary 
conference, unless the administrative law judge determines that such a 
conference is not necessary. At the conference, the administrative law 
judge shall consider the issuance of such orders as the administrative 
law judge deems necessary for the conduct of the proceedings. Such 
orders may include, as appropriate under these regulations, the 
establishment of a discovery schedule or the issuance of an order, if 
requested, to provide for maintaining the confidentiality of the 
proceedings pursuant to Sec. 207.105(b) of this subpart.



Sec. 207.109  Discovery.

    (a) Discovery methods. All parties may obtain discovery under such 
terms and limitations as the administrative law judge may order. 
Discovery may be by one or more of the following methods:
    (1) Depositions upon oral examination or written questions;
    (2) Written interrogatories;
    (3) Production of documents or things for inspection and other 
purposes; and
    (4) Requests for admissions.
    (b) Sanctions. If a party or an officer or agent of a party fails to 
comply with a discovery order, the administrative law judge may take 
such action as he deems reasonable and appropriate, including the 
issuance of evidentiary sanctions or deeming the respondent to be in 
default.
    (c) Depositions of nonparty officers or employees of the United 
States or another Free Trade Area country government--(1) Depositions of 
Commission officers or employees. A party desiring to take the 
deposition of an officer or employee of the Commission (other than a 
member of the Office of Unfair Import Investigations or of the Office of 
the Administrative Law Judges), or to obtain nonprivileged documents or 
other physical exhibits in the custody, control, and possession of such 
officer or employee, shall file a written motion requesting the 
administrative law judge to recommend that the Commission direct that 
officer or employee to testify or produce the requested materials.
    (2) Depositions of officers or employees of other United States 
agencies, or of the government of another Free Trade Area country. A 
party desiring to take the deposition of an officer or employee of 
another agency, or of the government of another Free Trade Area country, 
or to obtain nonprivileged documents or other physical exhibits in the 
custody, control, and possession of such officer or employee, shall file 
a written motion requesting the administrative law judge to recommend 
that the Commission seek the testimony or production of requested 
material from the officer or employee.



Sec. 207.110  Subpoenas.

    (a) Application for issuance of a subpoena. Except as provided in 
Sec. 207.109(c) of this subpart, an application for issuance of a 
subpoena requiring a person to appear and depose or testify at the 
taking of a deposition or at a hearing shall be made to the 
administrative law judge. The application shall be made in writing, and 
shall specify the material to be produced as precisely as possible, 
showing the relevancy of the material and the reasonableness of the 
scope of the subpoena. The application

[[Page 125]]

shall be ruled upon by the administrative law judge.
    (b) Enforcement of a subpoena. A motion for enforcement of a 
subpoena shall be made to the administrative law judge. Upon 
consideration of the motion and any response thereto, the administrative 
law judge shall recommend to the Commission in favor of or against 
enforcement. The administrative law judge's recommendation shall provide 
the basis therefor, and shall address each of the criteria necessary for 
enforcement of an administrative subpoena. After consideration of the 
administrative law judge's recommendation, the Commission shall 
determine whether initiation of enforcement proceedings is appropriate.
    (c) Application for subpoena grounded upon the Freedom of 
Information Act. No application for a subpoena for production of 
documents grounded upon the Freedom of Information Act (5 U.S.C. 552) 
shall be entertained by the administrative law judge or the Commission.



Sec. 207.111  Prehearing conference.

    The administrative law judge may direct the attorney or other 
representatives for the parties to meet with him or her to consider any 
or all of the following:
    (a) Simplification and clarification of the issues;
    (b) Scope of the hearing;
    (c) Stipulations and admissions of either fact or the content and 
authenticity of documents;
    (d) Disclosure of the names of witnesses and the exchange of 
documents or other physical evidence that will be introduced in the 
course of the hearing; and
    (e) Such other matters as may aid in the orderly and expeditious 
disposition of the proceedings.



Sec. 207.112  Hearings.

    (a) Purpose of and scheduling of hearings. An opportunity for a 
hearing before an administrative law judge shall be provided for each 
action initiated under Sec. 207.102 of this subpart. The purpose of 
such hearing shall be to receive evidence and hear argument in order to 
determine whether a charged party has committed a prohibited act and if 
so, what sanctions are appropriate. Hearings shall proceed with all 
reasonable expedition, and, insofar as practicable, shall be held at one 
place, continuing until completed, unless otherwise ordered by the 
administrative law judge.
    (b) Joinder or consolidation. The administrative law judge may order 
such joinder or consolidation of proceedings initiated under Sec. 
207.102 of this subpart at the administrative law judge's discretion.
    (c) Compliance with Administrative Procedure Act. The administrative 
law judge shall conduct a hearing that complies with the requirements of 
section 554 of title 5 of the United States Code.



Sec. 207.113  The record.

    (a) Definition of the record. The record shall consist of--
    (1) The charging letter and response, motions and responses, and 
other documents and exhibits properly filed with the Commission 
Secretary;
    (2) All orders, notices, and the recommended or initial 
determinations of the administrative law judge;
    (3) Orders, notices, and any final determination of the Commission;
    (4) Hearing transcripts, and evidence admitted at the hearing; and
    (5) Any other items certified into the record by the administrative 
law judge.
    (b) Certification of the record. The record shall be certified to 
the Commission by the administrative law judge upon his or her filing of 
the initial determination.



Sec. 207.114  Initial determination.

    (a) Time for filing of initial determination. (1) Except as may 
otherwise be ordered by the Commission, within ninety (90) days of the 
date of issuance of the charging letter, the administrative law judge 
shall certify the record to the Commission and shall file with the 
Commission an initial determination as to whether each charged party has 
committed a prohibited act, and as to appropriate sanctions.
    (2) The administrative law judge may request the Commission to 
extend the time period for issuance of the initial determination for 
good cause shown.
    (b) Contents of the initial determination. The initial determination 
shall include the following:

[[Page 126]]

    (1) An opinion making all necessary findings of fact and conclusions 
of law and the reasons therefor, and
    (2) A statement that the initial determination shall become the 
determination of the Commission unless a party files a petition for 
review of the determination pursuant to Sec. 207.115 or the Commission 
pursuant to Sec. 207.116 of this subpart, orders on its own motion a 
review of the initial determination or certain issues therein.
    (c) Burden of proof. A finding that a charged party committed a 
prohibited act shall be supported by clear and convincing evidence.
    (d) Effect of initial determination. The initial determination shall 
become the determination of the Commission forty-five (45) days after 
the date of service of the initial determination, unless the Commission 
within such time orders review of the initial determination or certain 
issues therein pursuant to Sec. 207.115 or 207.116 of this subpart or 
by order shall have changed the effective date of the initial 
determination. In the event an initial determination becomes the 
determination of the Commission, the parties shall be notified thereof 
by the Commission Secretary.



Sec. 207.115  Petition for review.

    (a) The petition and responses. (1) Any party may request a review 
by the Commission of the initial determination by filing with the 
Commission Secretary a petition for review, except that a party who has 
defaulted may not petition for review of any issue regarding which the 
party is in default.
    (2) Any person who wishes to obtain judicial review pursuant to 19 
U.S.C. 1677f(f)(5) must first seek review by the Commission in 
accordance with the procedures set forth in this regulation governing 
petitions for review.
    (3) Any petition for review must be filed within fourteen (14) days 
after service of the initial determination on the charged party. The 
petition shall:
    (i) Identify the party seeking review;
    (ii) Specify the issues upon which review is sought, including a 
statement as to whether review is sought of the initial determination 
regarding the commitment of a prohibited act, or of the initial 
determination regarding sanctions;
    (iii) Set forth a concise statement of the relevant law or material 
facts necessary for consideration of the stated issues; and
    (iv) Present a concise argument setting forth the reasons why review 
is necessary or appropriate.
    (4) Any issue not raised in the petition for review filed under this 
section will be deemed to have been abandoned and may be disregarded by 
the Commission.
    (5) Any party may file a response to the petition within seven (7) 
days after service of the petition, except that a party who has 
defaulted may not file a response to any issue regarding which the party 
is in default.
    (b) Grant or denial of review. (1) The Commission shall decide 
whether to grant a petition for review, in whole or in part, within 
forty-five (45) days of the service of the initial determination on the 
parties, or by such other time as the Commission may order.
    (2) The Commission shall base its decision whether to grant a 
petition for review upon the petition and response thereto, without oral 
argument or further written submissions, unless the Commission shall 
order otherwise.
    (3) The Commission shall grant a petition for review of an initial 
determination or certain issues therein when at least one of the 
participating Commissioners votes for ordering review. In its notice, 
the Commission shall establish the scope of the review and the issues 
that will be considered and make provisions for the filing of briefs and 
oral argument if deemed appropriate by the Commission. The notice that 
the Commission has granted the petition shall be served by the 
Commission Secretary on all parties.



Sec. 207.116  Commission review on its own motion.

    Within forty-five (45) days of the date of service of the initial 
determination, the Commission on its own initiative shall order review 
of an initial determination or certain issues therein upon request of 
any Commissioner.

[[Page 127]]



Sec. 207.117  Review by Commission.

    On review, the parties may not present argument on any issue that is 
not set forth in the notice of review; and the Commission may affirm, 
reverse, modify, set aside or remand for further proceedings, in whole 
or in part, the initial determination of the administrative law judge. 
The Commission may make any findings or conclusions that in its judgment 
are proper based on the record in the proceeding.



Sec. 207.118  Role of the General Counsel in advising the Commission.

    The Assistant General Counsel for Section 337 Investigations shall 
serve as Acting General Counsel for the purpose of advising the 
Commission on proceedings brought under this subpart if the prohibited 
act described in the charging letter involves a protective order issued 
in connection with a panel review that was pending when the letter was 
issued, and the General Counsel participated in the panel review. No 
other Commission attorney shall advise the Commission on proceedings 
under this subpart concerning a protective order issued during a panel 
review in which the attorney participated.



Sec. 207.119  Reconsideration.

    (a) Motion for reconsideration. Within fourteen (14) days after 
service of a Commission determination, any party may file with the 
Commission a motion for reconsideration, setting forth the relief 
desired and the grounds in support thereof. Any motion filed under this 
section must be confined to new questions raised by the determination or 
action ordered to be taken thereunder and upon which the moving party 
had no opportunity to submit arguments.
    (b) Disposition of motion for reconsideration. The Commission shall 
grant or deny the motion for reconsideration. No response to a motion 
for reconsideration will be received unless requested by the Commission, 
but a motion for reconsideration will not be granted in the absence of 
such a request. If the motion to reconsider is granted, the Commission 
may affirm, set aside, or modify its determination, including any action 
ordered by it to be taken thereunder. When appropriate, the Commission 
may order the administrative law judge to take additional evidence.



Sec. 207.120  Public notice of sanctions.

    If the final Commission decision is that there has been a prohibited 
act, and that public sanctions are to be imposed, notice of the decision 
will be published in the Federal Register and forwarded to the 
Secretariat. Such publication will occur no sooner than fourteen (14) 
days after issuance of a final decision or after any motion for 
reconsideration has been denied. The Commission Secretary shall also 
serve notice of the Commission decision upon such departments and 
agencies of the United States, Canadian and Mexican governments as the 
Commission deems appropriate.



PART 208_INVESTIGATIONS WITH RESPECT TO COMMERCIAL AVAILABILITY OF TEXTILE 

FABRIC AND YARN IN SUB-SAHARAN AFRICAN COUNTRIES--Table of Contents




Sec.
208.1 Applicability of part.
208.2 Definitions applicable to this part.
208.3 Petitions.
208.4 Institution of investigations; publication of notice; and 
          availability of petition for public inspection.
208.5 Public hearing.
208.6 Service, filing, and certification of documents.
208.7 Determinations and reports.
208.8 Confidential business information; furnishing of nonconfidential 
          summaries thereof.

    Authority: 19 U.S.C. 1335; 19 U.S.C. 3721(c).

    Source: 72 FR 8626, Feb. 27, 2007, unless otherwise noted.



Sec. 208.1  Applicability of part.

    This part 208 applies to proceedings of the Commission under section 
112(c) of the African Growth and Opportunity Act, as amended (19 U.S.C. 
3721(c)).



Sec. 208.2  Definitions applicable to this part.

    (a) Beneficiary sub-Saharan African country. The term ``beneficiary 
sub-Saharan African country'' means those countries so designated by the 
President under 19 U.S.C. 2466a.

[[Page 128]]

    (b) Lesser developed beneficiary sub-Saharan African country. The 
term ``lesser developed beneficiary sub-Saharan African country'' means 
a beneficiary sub-Saharan African country that had a per capita gross 
national product of less than $1,500 in 1998, as measured by the 
International Bank for Reconstruction and Development; Botswana; and 
Namibia.
    (c) Applicable 1-year period. The term ``applicable 1-year period'' 
means the 12-month period beginning on October 1 and ending on September 
30 of the following year.



Sec. 208.3  Petitions.

    (a) Who may file. A petition under this part may be filed with the 
Commission by an interested party, including a producer of fabric or 
yarn in a beneficiary sub-Saharan African country, a producer of apparel 
in a lesser developed beneficiary sub-Saharan African country, or any 
other person who demonstrates to the satisfaction of the Commission a 
proper interest in filing a petition.
    (b) Contents of petition. The Commission will consider only 
petitions that address a single yarn or single fabric. The term ``a 
single yarn or single fabric'' means a single product, which may be 
classified in more than one heading of the HTS or may be only part of a 
heading. A petition shall include the following information in support 
of a request for a Commission investigation and determination under this 
part, to the extent that such information is available from governmental 
or other sources. To the extent information is not available from such 
sources, the petition may be based on best estimates, including an 
explanation of the basis therefor. If the petition does not include the 
required information and/or estimates and explanation, the petition will 
not be accepted, and it will instead be returned to the submitter. All 
quantities must be expressed in the unit of quantity used in the 
Harmonized Tariff Schedule of the United States, showing any conversion 
factors used (for example, most woven fabrics are reported in square 
meters, and most apparel are reported in numbers of units).
    (1) Product description. The name and description of the fabric or 
yarn concerned, including fiber content, yarn size, fabric construction, 
and finishing processes, specifying the United States tariff provision 
under which such article is classified (to the 8-digit level if 
possible) and the beneficiary sub-Saharan African country or countries 
in which the fabric or yarn is produced.
    (2) Statement of interest. The names and addresses of the interested 
party or parties filing the petition or represented in the petition, the 
location and nature of their establishments, a description of the 
fabrics, yarns, and apparel that they produce, import, and/or sell, for 
each party filing or represented (including but not limited to the 
fabric or yarn that is a subject of the petition), and the basis for 
asserting that such person or entity is an interested party eligible to 
file a petition under this part.
    (3) Basis for certain statements. The basis for asserting that the 
subject fabric or yarn produced in a beneficiary sub-Saharan African 
country is available in ``commercial quantities'' and for ``use'' in a 
lesser developed beneficiary sub-Saharan African country or countries. 
In support of a claim that such fabric or yarn is available in 
``commercial quantities,'' provide evidence for the 3 most recent full 
years for which information is available, and partial year data for the 
most recent year (if less than a full year), that such fabric or yarn is 
available for sale to third parties and the quantities offered, and any 
evidence of such sales to third parties. Include advertisements or other 
documentation in support of such claim. In support of a claim that such 
fabric or yarn is available for ``use'' in a lesser developed 
beneficiary sub-Saharan African country or countries, provide evidence 
for the 3 most recent full years for which information is available, and 
partial year data for the most recent year (if less than a full year), 
of any offers, orders, or contracts or other supporting documentation. 
For orders already delivered, indicate the quantity involved and the 
time and location of the deliveries to the apparel producer. For orders 
for which deliveries have not yet been made, indicate the time or likely 
time

[[Page 129]]

of the receipt by an apparel producer in all countries where the fabric 
or yarn has been sold or offered for sale, including lesser developed 
sub-Saharan African country or countries.
    (4) Data concerning fabric and yarn. With respect to the subject 
fabric or yarn:
    (i) Data on production, sales, inventories, and capacity, that is 
supportable through documentation that can be made available to the 
Commission, for each firm known or believed to be producing the subject 
fabric or yarn in a beneficiary sub-Saharan African country, for each of 
the 3 most recent full years for which data are available, and partial 
year data for the most recent year (if less than a full year);
    (ii) The name, address (house number, street, city, country, postal 
mailing number), telephone number, e-mail address, and contact person 
for each producer known or believed to be producing such fabric or yarn 
in a beneficiary sub-Saharan African country.
    (5) Orders from apparel producers and other users. Data on orders 
from apparel producers and other users in all countries where the fabric 
or yarn has been sold or offered for sale, including lesser developed 
beneficiary sub-Saharan African countries, by country, for the most 
recent full year and partial year (if less than a full year), and 
projected orders for the 1-year period (October 1-September 30) 
beginning after the Commission's determination. The information 
furnished shall include the full fabric or yarn specification in the 
order, including, but not limited to, the fiber content, yarn size, 
fabric construction, finishing processes, quantities, projected delivery 
time for the fabric or yarn to the customer identified in the order, and 
any other information that the interested party submitting the petition 
believes is relevant. It shall also include the name, address (house 
number, street, city, country, postal mailing number), telephone number, 
e-mail address, and contact person (i) for each beneficiary sub-Saharan 
African fabric or yarn producer identified in each reported order, and 
(ii) for each lesser developed beneficiary sub-Saharan African apparel 
producer or other user identified in each reported order.
    (6) Estimated quantity available in next 1-year period. Estimated 
production of the subject fabric or yarn, by firm, for the 1-year period 
(October 1-September 30) beginning after the Commission's determination, 
and an estimate of the quantity of such production of fabric or yarn, by 
firm, that will be available in lesser developed beneficiary sub-Saharan 
African countries in that 1-year period, and basis for that estimate, 
including orders and other supporting documents.



Sec. 208.4  Institution of investigations; publication of notice; and 

availability of petition for public inspection.

    (a) Institution of investigation and publication of notice. The 
Commission, after receipt of a petition under this part, properly filed, 
will institute an appropriate investigation not later than 10 days after 
receipt of the petition, and publish notice thereof in the Federal 
Register.
    (b) Contents of notice. The notice instituting the investigation 
will identify the petitioner, the fabric or yarn that is the subject of 
the investigation and its tariff subheading, the nature and timing of 
the determination to be made, the time and place of any public hearing, 
the deadlines for filing briefs, statements, and other documents, page 
limits (if any) on posthearing briefs and documents, the place at which 
the petition or request and any other documents filed in the course of 
the investigation may be inspected, and the name, address, and telephone 
number of the office that may be contacted for more information.
    (c) Availability for public inspection. The Commission will promptly 
make each petition available for public inspection (with the exception 
of confidential business information).



Sec. 208.5  Public hearing.

    (a) In general. The Commission may, in its discretion, hold a public 
hearing in connection with an investigation under this part. If the 
Commission holds a public hearing, it will do so only after having 
caused reasonable notice thereof to be published in the Federal 
Register.

[[Page 130]]

    (b) Opportunity to appear. All interested parties will be afforded 
an opportunity to be present, to present evidence, and to be heard at 
any such hearing.



Sec. 208.6  Service, filing, and certification of documents.

    (a) Filing. Documents to be filed with the Commission must comply 
with applicable rules, including Sec. 201.8 of this chapter. If the 
Commission establishes a deadline for the filing of a document, and the 
submitter includes confidential business information in the document, 
the submitter is to file the confidential version on or before the 
deadline date and may file the nonconfidential version no later than one 
business day after the deadline for filing the document. If the 
submitter is a party, the submitter is to serve the nonconfidential 
version of the document on other parties on the service list no later 
than one business day after the deadline for filing the document. The 
confidential version filed with the Commission shall enclose all 
confidential business information in brackets and have the following 
warning marked on every page: ``Bracketing of CBI not final for one 
business day after date of filing.'' The bracketing becomes final one 
business day after the date of filing of the document, i.e., at the same 
time as the nonconfidential version of the document is due to be filed. 
If the submitter discovers it has failed to bracket correctly, the 
submitter may file a corrected version or portion of the confidential 
document at the same time as the nonconfidential version is filed. No 
changes to the document other than bracketing and deletion of 
confidential business information are permitted after the deadline. 
Failure to comply with this paragraph may result in the striking of all 
or a portion of a submitter's document.
    (b) Service. Any party submitting a document for the consideration 
of the Commission in the course of an investigation to which this part 
pertains shall, in addition to complying with Sec. 201.8 of this 
chapter, serve a copy of the public version of such document on all 
other parties to the investigation in the manner prescribed in Sec. 
201.16 of this chapter. If a document is filed before the Secretary's 
issuance of the service list provided for in Sec. 201.11 of this 
chapter, the document need not be accompanied by a certificate of 
service, but the document shall be served on all appropriate parties 
within two (2) days of the issuance of the service list and a 
certificate of service shall then be filed. Notwithstanding Sec. 201.16 
of this chapter, petitions, briefs, and testimony filed by parties shall 
be served by hand or, if served by mail, by overnight mail or its 
equivalent. Failure to comply with the requirements of this rule may 
result in removal from status as a party to the investigation. The 
Commission shall make available, upon request, to all parties to the 
investigation a copy of each document, except transcripts of hearings, 
confidential business information, privileged information, and 
information required to be served under this section, placed in the 
docket file of the investigation by the Commission.
    (c) Certification. Any person submitting factual information on 
behalf of the petitioner or any other interested party for the 
consideration of the Commission in the course of an investigation to 
which this part pertains, and any person submitting a response to a 
Commission questionnaire issued in connection with an investigation to 
which this part pertains, must certify that such information is accurate 
and complete to the best of the submitter's knowledge.



Sec. 208.7  Determinations and reports.

    (a) Determinations. When relevant information is not available on 
the record or any party withholds information that has been requested by 
the Commission, the Commission will make its determination on the basis 
of the facts available. When the Commission relies on information 
submitted as facts available, it will, to the extent practicable, 
corroborate the information from independent sources that are reasonably 
available to the Commission.
    (b) Time for determinations and reports. The Commission will make 
its determinations under section 112(c)(2)(A) and (B)(i) of AGOA and 
transmit its reports to the President by September 25, 2007, with 
respect to petitions received

[[Page 131]]

on or before March 28 and accepted on or before April 11, 2007, and will 
make its determinations by August 1 of subsequent years with respect to 
petitions received on or before January 15 and accepted on or before 
February 1 of those years.
    (c) Contents of report. The Commission will include in its report to 
the President the following:
    (1) The determination made with respect to whether a fabric or yarn 
produced in beneficiary sub-Saharan African countries is available in 
commercial quantities for use in lesser developed beneficiary sub-
Saharan African countries, and an explanation of the basis for the 
determination;
    (2) If the determination in paragraph (c)(1) of this section is 
affirmative, a determination with respect to the quantity of the fabric 
or yarn that will be so available in lesser developed beneficiary sub-
Saharan African countries in the applicable 1-year period beginning 
after the determination is made;
    (3) Any dissenting or separate views by members of the Commission 
regarding such determinations.
    (d) Public version of report. Upon making its report to the 
President, the Commission will make such report public (with the 
exception of information which the Commission determines to be 
confidential), and publish a summary thereof in the Federal Register.

[72 FR 8626, Feb. 27, 2007, as amended at 72 FR 11287, Mar. 13, 2007]



Sec. 208.8  Confidential business information; furnishing of nonconfidential 

summaries thereof.

    (a) Nonrelease of information. In the case of an investigation under 
this part, the Commission will not release information which the 
Commission considers to be confidential business information within the 
meaning of Sec. 201.6 of this chapter unless the party submitting the 
confidential business information had notice, at the time of submission, 
that such information would be released by the Commission, or such party 
subsequently consents to the release of the information. When 
appropriate, the Commission will include confidential business 
information in reports transmitted to the President (and/or the United 
States Trade Representative); such reports will be marked as containing 
confidential business information, and a nonconfidential version of such 
report will be made available to the public.
    (b) Nonconfidential summaries. Except as the Commission may 
otherwise provide, a party submitting confidential business information 
shall also submit to the Commission, at the time it submits such 
information, a nonconfidential summary of the information. If a party 
indicates that the confidential business information cannot be 
summarized, it shall state in writing the reasons why a summary cannot 
be provided. If the Commission finds that a request for confidentiality 
is not warranted and if the party concerned is either unwilling to make 
the information public or to authorize its disclosure in generalized or 
summarized form, the Commission may disregard the submission.

[[Page 132]]



     SUBCHAPTER C_INVESTIGATIONS OF UNFAIR PRACTICES IN IMPORT TRADE



PART 210_ADJUDICATION AND ENFORCEMENT--Table of Contents




                Subpart A_Rules of General Applicability

Sec.
210.1 Applicability of part.
210.2 General policy.
210.3 Definitions.
210.4 Written submissions; representations; sanctions.
210.5 Confidential business information.
210.6 Computation of time, additional hearings, postponements, 
          continuances, and extensions of time.
210.7 Service of process and other documents; publication of notices.

 Subpart B_Commencement of Preinstitution Proceedings and Investigations

210.8 Commencement of preinstitution proceedings.
210.9 Action of Commission upon receipt of complaint.
210.10 Institution of investigation.
210.11 Service of complaint and notice of investigation.

                           Subpart C_Pleadings

210.12 The complaint.
210.13 The response.
210.14 Amendments to pleadings and notice; supplemental submissions; 
          counterclaims.

                            Subpart D_Motions

210.15 Motions.
210.16 Default.
210.17 Failures to act other than the statutory forms of default.
210.18 Summary determinations.
210.19 Intervention.
210.20 Declassification of confidential information.
210.21 Termination of investigations.
210.22 [Reserved]
210.23 Suspension of investigation.
210.24 Interlocutory appeals.
210.25 Sanctions.
210.26 Other motions.

               Subpart E_Discovery and Compulsory Process

210.27 General provisions governing discovery.
210.28 Depositions.
210.29 Interrogatories.
210.30 Requests for production of documents and things and entry upon 
          land.
210.31 Requests for admission.
210.32 Subpoenas.
210.33 Failure to make or cooperate in discovery; sanctions.
210.34 Protective orders; reporting requirement; sanctions and other 
          actions.

              Subpart F_Prehearing Conferences and Hearings

210.35 Prehearing conferences.
210.36 General provisions for hearings.
210.37 Evidence.
210.38 Record.
210.39 In camera treatment of confidential information.
210.40 Proposed findings and conclusions and briefs.

               Subpart G_Determinations and Actions Taken

210.41 Termination of investigation.
210.42 Initial determinations.
210.43 Petitions for review of initial determinations on matters other 
          than temporary relief.
210.44 Commission review on its own motion of initial determinations on 
          matters other than temporary relief.
210.45 Review of initial determinations on matters other than temporary 
          relief.
210.46 Petitions for and sua sponte review of initial determinations on 
          violation of section 337 or temporary relief.
210.47 Petitions for reconsideration.
210.48 Disposition of petitions for reconsideration.
210.49 Implementation of Commission action.
210.50 Commission action, the public interest, and bonding by 
          respondents.
210.51 Period for concluding investigation.

                       Subpart H_Temporary Relief

210.52 Motions for temporary relief.
210.53 Motion filed after complaint.
210.54 Service of motion by the complainant.
210.55 Content of service copies.
210.56 Notice accompanying service copies.
210.57 Amendment of the motion.
210.58 Provisional acceptance of the motion.
210.59 Responses to the motion and the complaint.
210.60 Designating an investigation ``more complicated'' for the purpose 
          of adjudicating a motion for temporary relief.
210.61 Discovery and compulsory process.

[[Page 133]]

210.62 Evidentiary hearing.
210.63 Proposed findings and conclusions and briefs.
210.64 Interlocutory appeals.
210.65 Certification of the record.
210.66 Initial determination concerning temporary relief; Commission 
          action thereon.
210.67 Remedy, the public interest, and bonding.
210.68 Complainant's temporary relief bond.
210.69 Approval of complainant's temporary relief bond.
210.70 Forfeiture or return of complainant's temporary relief bond.

         Subpart I_Enforcement Procedures and Advisory Opinions

210.71 Information gathering.
210.72 Confidentiality of information.
210.73 Review of reports.
210.74 Modification of reporting requirements.
210.75 Proceedings to enforce exclusion orders, cease and desist orders, 
          consent orders, and other Commission orders.
210.76 Modification or rescission of exclusion orders, cease and desist 
          orders, and consent orders.
210.77 Temporary emergency action.
210.78 Notice of enforcement action to Government agencies.
210.79 Advisory opinions.

Appendix A--Adjudication and enforcement

    Authority: 19 U.S.C. 1333, 1335, and 1337.

    Source: 59 FR 39039, Aug. 1, 1994, unless otherwise noted.



                Subpart A_Rules of General Applicability



Sec. 210.1  Applicability of part.

    The rules in this part apply to investigations under section 337 of 
the Tariff Act of 1930 and related proceedings. These rules are 
authorized by sections 333, 335, or 337 of the Tariff Act of 1930 (19 
U.S.C. Sec. Sec. 1333, 1335, and 1337) and sections 2 and 1342(d)(1)(B) 
of the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-
418, 102 Stat. 1107 (1988).



Sec. 210.2  General policy.

    It is the policy of the Commission that, to the extent practicable 
and consistent with requirements of law, all investigations and related 
proceedings under this part shall be conducted expeditiously. The 
parties, their attorneys or other representatives, and the presiding 
administrative law judge shall make every effort at each stage of the 
investigation or related proceeding to avoid delay.



Sec. 210.3  Definitions.

    As used in this part--
    Administrative law judge means the person appointed under section 
3105 of title 5 of the United States Code who presides over the taking 
of evidence in an investigation under this part. If the Commission so 
orders or a section of this part so provides, an administrative law 
judge also may preside over stages of a related proceeding under this 
part.
    Commission investigative attorney means a Commission attorney 
designated to engage in investigatory activities in an investigation or 
a related proceeding under this part.
    Complainant means a person who has filed a complaint with the 
Commission under this part, alleging a violation of section 337 of the 
Tariff Act of 1930.
    Intervenor means a person who has been granted leave by the 
Commission to intervene as a party to an investigation or a related 
proceeding under this part.
    Investigation means a formal Commission inquiry instituted to 
determine whether there is a violation of section 337 of the Tariff Act 
of 1930. An investigation is instituted upon publication of a notice in 
the Federal Register. The investigation entails postinstitution 
adjudication of the complaint. An investigation can also involve the 
processing of one or more of the following: A motion to amend the 
complaint and notice of investigation; a motion for temporary relief; a 
motion to designate ``more complicated'' the temporary relief stage of 
the investigation; an interlocutory appeal of an administrative law 
judge's decision on a particular matter; a motion for sanctions for 
abuse of process, abuse of discovery, or failure to make or cooperate in 
discovery, which if granted, would have an impact on the adjudication of 
the merits of the complaint; a petition for reconsideration of a final 
Commission determination; a

[[Page 134]]

motion for termination of the investigation in whole or part; and 
procedures undertaken in response to a judgment or judicial order issued 
in an appeal of a Commission determination or remedial order issued 
under section 337 of the Tariff Act of 1930.
    Party means each complainant, respondent, intervenor, or Commission 
investigative attorney.
    Proposed intervenor means any person who has filed a motion to 
intervene in an investigation or a related proceeding under this part.
    Proposed respondent means any person named in a complaint filed 
under this part as allegedly violating section 337 of the Tariff Act of 
1930.
    Related proceeding means preinstitution proceedings, sanction 
proceedings (for the possible issuance of sanctions that would not have 
a bearing on the adjudication of the merits of a complaint or a motion 
under this part), bond forfeiture proceedings, proceedings to enforce, 
modify, or revoke a remedial or consent order, or advisory opinion 
proceedings.
    Respondent means any person named in a notice of investigation 
issued under this part as allegedly violating section 337 of the Tariff 
Act of 1930.
    U.S. Customs Service means U.S. Customs and Border Protection.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67626, Dec. 30, 1994; 73 
FR 38320, July 7, 2008]



Sec. 210.4  Written submissions; representations; sanctions.

    (a) Caption; names of parties. The front page of every written 
submission filed by a party or a proposed party to an investigation or a 
related proceeding under this part shall contain a caption setting forth 
the name of the Commission, the title of the investigation or related 
proceeding, the docket number or investigation number, if any, assigned 
to the investigation or related proceeding, and in the case of a 
complaint, the names of the complainant and all proposed respondents.
    (b) Signature. Every pleading, written motion, and other paper of a 
party or proposed party who is represented by an attorney in an 
investigation or a related proceeding under this part shall be signed by 
at least one attorney of record in the attorney's individual name. A 
party or proposed party who is not represented by an attorney shall 
sign, or his duly authorized officer or agent shall sign, the pleading, 
written motion, or other paper. Each paper shall state the signer's 
address and telephone number, if any. Pleadings, written motions, and 
other papers need not be under oath or accompanied by an affidavit, 
except as provided in Sec. Sec. 210.12(a)(1), 210.13(b), 210.18, 
210.52(d), 210.59(b), or another section of this part or by order of the 
administrative law judge or the Commission. If a pleading, motion, or 
other paper is not signed, it shall be stricken unless it is signed 
promptly after omission of the signature is called to the attention of 
the submitter.
    (c) Representations. By presenting to the presiding administrative 
law judge or the Commission (whether by signing, filing, submitting, or 
later advocating) a pleading, written motion, or other paper, an 
attorney or unrepresented party or proposed party is certifying that to 
the best of the person's knowledge, information, and belief, formed 
after an inquiry reasonable under the circumstances--
    (1) It is not being presented for any improper purpose, such as to 
harass or to cause unnecessary delay or needless increase in the cost of 
the investigation or related proceeding;
    (2) The claims, defenses, and other legal contentions therein are 
warranted by existing law or by a nonfrivolous argument for the 
extension, modification, or reversal of existing law or the 
establishment of new law;
    (3) The allegations and other factual contentions have evidentiary 
support or, if specifically so identified, are likely to have 
evidentiary support after a reasonable opportunity for further 
investigation or discovery; and
    (4) The denials of factual contentions are warranted on the evidence 
or, if specifically so identified, are reasonably based on a lack of 
information or belief.
    (d) Sanctions. If, after notice and a reasonable opportunity to 
respond (see paragraphs (d)(1) (i) and (ii) of this section and Sec. 
210.25), the presiding administrative law judge or the Commission 
determines that paragraph (c) of this

[[Page 135]]

section has been violated, the administrative law judge or the 
Commission may, subject to the conditions stated below and in Sec. 
210.25, impose an appropriate sanction upon the attorneys, law firms, or 
parties that have violated paragraph (c) or are responsible for the 
violation. A representation need not be frivolous in its entirety in 
order for the administrative law judge or the Commission to determine 
that paragraph (c) has been violated. If any portion of a representation 
is found to be false, frivolous, misleading, or otherwise in violation 
of paragraph (c), a sanction may be imposed. In determining whether 
paragraph (c) has been violated, the administrative law judge or the 
Commission will consider whether the representation or disputed portion 
thereof was objectively reasonable under the circumstances.
    (1) How initiated--(i) By motion. A motion for sanctions under this 
section shall be made separately from other motions or requests and 
shall describe the specific conduct alleged to violate paragraph (c). It 
shall be served as provided in paragraph (g) of this section, but shall 
not be filed with or presented to the presiding administrative law judge 
or the Commission unless, within seven days after service of the motion 
(or such other period as the administrative law judge or the Commission 
may prescribe), the challenged paper, claim, defense, contention, 
allegation, or denial is not withdrawn or appropriately corrected. See 
also Sec. 210.25 (a) through (c). If warranted, the administrative law 
judge or the Commission may award to the party or proposed party 
prevailing on the motion the reasonable expenses and attorney's fees 
incurred in presenting or opposing the motion. Absent exceptional 
circumstances, a law firm shall be held jointly responsible for 
violations committed by its partners, associates, and employees.
    (ii) On the administrative law judge's or the Commission's 
initiative. The administrative law judge or the Commission may enter an 
order sua sponte describing the specific conduct that appears to violate 
paragraph (c) of this section and directing an attorney, law firm, 
party, or proposed party to show cause why it has not violated paragraph 
(c) with respect thereto.
    (2) Nature of sanctions; limitations. A sanction imposed for 
violation of paragraph (c) of this section shall be limited to what is 
sufficient to deter repetition of such conduct or comparable conduct by 
others similarly situated. Subject to the limitations in paragraphs 
(d)(2) (i) through (iv) of this section, the sanction may consist of, or 
include, directives of a nonmonetary nature, an order to pay a penalty, 
or, if imposed on motion and warranted for effective deterrence, an 
order directing payment to the movant of some or all of the reasonable 
attorney's fees and other expenses incurred as a direct result of the 
violation.
    (i) Monetary sanctions shall not be imposed under this section 
against the United States, the Commission, or a Commission investigative 
attorney.
    (ii) Monetary sanctions may not be awarded against a represented 
party or proposed party for a violation of paragraph (c)(2) of this 
section.
    (iii) Monetary sanctions may not be imposed on the administrative 
law judge's or the Commission's initiative unless--
    (A) The Commission or the administrative law judge issues an order 
to show cause before the investigation or related proceeding is 
terminated, in whole or in relevant part, as to the party or proposed 
party which is, or whose attorneys are, to be sanctioned; and
    (B) Such termination is the result of--
    (1) A motion to withdraw the complaint, motion, or petition that was 
the basis for the investigation or related proceeding;
    (2) A settlement agreement;
    (3) A consent order agreement; or
    (4) An arbitration agreement.
    (iv) Monetary sanctions imposed to compensate the Commission for 
expenses incurred by a Commission investigative attorney or the 
Commission's Office of Unfair Import Investigations will include 
reimbursement for some or all costs reasonably incurred as a direct 
result of the violation, but will not include attorney's fees.
    (3) Order. When imposing sanctions, the administrative law judge or 
the

[[Page 136]]

Commission shall describe the conduct determined to constitute a 
violation of this rule and explain the basis for the sanction imposed. 
See also Sec. 210.25(d)--(f).
    (e) Inapplicability to discovery. Paragraphs (c) and (d) of this 
section do not apply to discovery requests, responses, objections, and 
motions that are subject to provisions of Sec. Sec. 210.27 through 
210.34.
    (f) Specifications; filing of documents. (1)(i) Written submissions 
that are addressed to the Commission during an investigation or a 
related proceeding shall comply with Sec. 201.8 of this chapter, except 
for the provisions regarding the number of copies to be submitted. The 
required number of copies shall be governed by paragraph (f)(2) of this 
section. Written submissions may be produced by any process which 
produces a clear black image on white paper. Typed matter shall not 
exceed 6\1/2\ by 9\1/2\ inches using 11-point or larger type and shall 
be double-spaced between each line of text using the standard of 6 lines 
of type per inch. Text and footnotes shall be in the same size type. 
Quotations more than two lines long in the text or footnotes may be 
indented and single-spaced. Headings and footnotes may be single-spaced.
    (ii) The administrative law judge may impose any specifications he 
deems appropriate for submissions that are addressed to the 
administrative law judge.
    (2) Unless the Commission or this part specifically states 
otherwise,
    (i) The original and 6 true copies of each submission shall be filed 
if the investigation or related proceeding is before an administrative 
law judge, and
    (ii) The original and 12 true copies of each submission shall be 
filed if the investigation or related proceeding is before the 
Commission, except that a submitter shall file the original and 6 copies 
of any exhibits filed with a request or petition for related 
proceedings.
    (3)(i) If a complaint, a supplement to a complaint, a motion for 
temporary relief, or the documentation supporting a motion for temporary 
relief contains confidential business information as defined in Sec. 
201.6(a) of this chapter, the complainant shall file nonconfidential 
copies of the complaint, the supplement to the complaint, the motion for 
temporary relief, or the documentation supporting the motion for 
temporary relief concurrently with the requisite confidential copies, as 
provided in Sec. 210.8(a) of this part.
    (ii) Persons who file the following submissions that contain 
confidential business information covered by an administrative 
protective order, or that are the subject of a request for confidential 
treatment, must file nonconfidential copies and serve them on the other 
parties to the investigation or related proceeding within 10 calendar 
days after filing the confidential version with the Commission:
    (A) A response to a complaint and all supplements and exhibits 
thereto;
    (B) All submissions relating to a motion to amend the complaint or 
notice of investigation; and
    (C) All submissions addressed to the Commission.

Other sections of this part may require, or the Commission or the 
administrative law judge may order, the filing and service of 
nonconfidential copies of other kinds of confidential submissions. If 
the submitter's ability to prepare a nonconfidential copy is dependent 
upon receipt of the nonconfidential version of an initial determination, 
or a Commission order or opinion, or a ruling by the administrative law 
judge or the Commission as to whether some or all of the information at 
issue is entitled to confidential treatment, the nonconfidential copies 
of the submission must be filed within 10 calendar days after service of 
the Commission or administrative law judge document in question. The 
time periods for filing specified in this paragraph apply unless the 
Commission, the administrative law judge, or another section of this 
part specifically provides otherwise.
    (g) Service. Unless the Commission, the administrative law judge, or 
another section of this part specifically provides otherwise, every 
written submission filed by a party or proposed

[[Page 137]]

party shall be served on all other parties in the manner specified in 
Sec. 201.16(b) of this chapter.

[59 FR 39039, Aug. 1, 1994; 59 FR 64286, Dec. 14, 1994, as amended at 59 
FR 67626, Dec. 30, 1994; 60 FR 32443, June 22, 1995; 68 FR 32978, June 
3, 2003; 73 FR 38320, July 7, 2008]



Sec. 210.5  Confidential business information.

    (a) Definition and submission. Confidential business information 
shall be defined and identified in accordance with Sec. 201.6 (a) and 
(c) of this chapter. Unless the Commission, the administrative law 
judge, or another section of this part states otherwise, confidential 
business information shall be submitted in accordance with Sec. 
201.6(b) of this chapter. In the case of a complaint, any supplement to 
the complaint, and a motion for temporary relief filed under this part, 
the number of nonconfidential copies shall be prescribed by Sec. 
210.8(a) of this part.
    (b) Restrictions on disclosure. Information submitted to the 
Commission or exchanged among the parties in connection with an 
investigation or a related proceeding under this part, which is properly 
designated confidential under paragraph (a) of this section and Sec. 
201.6(a) of this chapter, may not be disclosed to anyone other than the 
following persons without the consent of the submitter:
    (1) Persons who are granted access to confidential information under 
Sec. 210.39(a) or a protective order issued pursuant to Sec. 
210.34(a);
    (2) An officer or employee of the Commission who is directly 
concerned with--
    (i) Carrying out or maintaining the records of the investigation or 
related proceeding for which the information was submitted;
    (ii) The administration of a bond posted pursuant to subsection (e), 
(f), or (j) of section 337 of the Tariff Act of 1930;
    (iii) The administration or enforcement of an exclusion order issued 
pursuant to subsection (d), (e), or (g), a cease and desist order issued 
pursuant to subsection (f), or a consent order issued pursuant to 
subsection (c) of section 337 of the Tariff Act of 1930; or
    (iv) Proceedings for the modification or rescission of a temporary 
or permanent order issued under subsection (d), (e), (f), (g), or (i) of 
section 337 of the Tariff Act of 1930, or a consent order issued under 
section 337 of the Tariff Act of 1930;
    (3) An officer or employee of the United States Government who is 
directly involved in a review conducted pursuant to section 337(j) of 
the Tariff Act of 1930; or
    (4) An officer or employee of the United States Customs Service who 
is directly involved in administering an exclusion from entry under 
section 337 (d), (e), or (g) of the Tariff Act of 1930 resulting from 
the investigation or related proceeding in connection with which the 
information was submitted.
    (c) Transmission of certain records to district court. 
Notwithstanding paragraph (b) of this section, confidential business 
information may be transmitted to a district court and be admissible in 
a civil action, subject to such protective order as the district court 
determines necessary, pursuant to 28 U.S.C. 1659.
    (d) Confidentiality determinations in preinstitution proceedings. 
After a complaint is filed under section 337 of the Tariff Act of 1930 
and before an investigation is instituted by the Commission, 
confidential business information designated confidential by the 
supplier shall be submitted in accordance with Sec. 201.6(b) of this 
chapter. The Secretary shall decide, in accordance with Sec. 201.6(d) 
of this chapter, whether the information is entitled to confidential 
treatment. Appeals from the ruling of the Secretary shall be made to the 
Commission as set forth in Sec. 201.6(e) and (f) of this chapter.
    (e) Confidentiality determinations in investigations and other 
related proceedings. (1) If an investigation is instituted or if a 
related proceeding is assigned to an administrative law judge, the 
administrative law judge shall set the ground rules for the designation, 
submission, and handling of information designated confidential by the 
submitter. When requested to do so, the administrative law judge shall 
decide whether information in a document addressed to the administrative 
law judge, or to be exchanged among

[[Page 138]]

the parties while the administrative law judge is presiding, is entitled 
to confidential treatment. The administrative law judge shall also 
decide, with respect to all orders, initial determinations, or other 
documents issued by the administrative law judge, whether information 
designated confidential by the supplier is entitled to confidential 
treatment. The supplier of the information or the person seeking the 
information may, with leave of the administrative law judge, request an 
appeal to the Commission of the administrative law judge's unfavorable 
ruling on this issue, under Sec. 210.24(b)(2).
    (2) The Commission may continue protective orders issued by the 
administrative law judge, amend or revoke those orders, or issue new 
ones. All submissions addressed to the Commission that contain 
information covered by an existing protective order will be given 
confidential treatment. (See also Sec. 210.72.) New information that is 
submitted to the Commission, designated confidential by the supplier, 
and not covered by an existing protective order must be submitted to the 
Secretary with a request for confidential treatment in accordance with 
Sec. 201.6(b) and (c) of this chapter. The Secretary shall decide, in 
accordance with Sec. 201.6(d) of this chapter, whether the information 
is entitled to confidential treatment. Appeals from the ruling of the 
Secretary shall be made to the Commission as provided in Sec. 201.6(e) 
and (f) of this chapter. The Commission shall decide, with respect to 
all orders, notices, opinions, and other documents issued by or on 
behalf of the Commission, whether information designated confidential by 
the supplier is entitled to confidential treatment.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67626, Dec. 30, 1994; 60 
FR 32444, June 22, 1995]



Sec. 210.6  Computation of time, additional hearings, postponements, 

continuances, and extensions of time.

    (a) Unless the Commission, the administrative law judge, or this or 
another section of this part specifically provides otherwise, the 
computation of time and the granting of additional hearings, 
postponements, continuances, and extensions of time shall be in 
accordance with Sec. Sec. 210.14 and 210.16(d) of this chapter.
    (b) Whenever a party has the right or is required to perform some 
act or to take some action within a prescribed period after service of a 
document upon it, and the document was served by mail, the deadline 
shall be computed by adding to the end of the prescribed period the 
additional time allotted under Sec. 210.16(d), unless the Commission, 
the administrative law judge, or another section of this part 
specifically provides otherwise.
    (c) Whenever a party has the right or is required to perform some 
act or to take some action within a prescribed period after service of a 
Commission document upon it, and the document was served by overnight 
delivery, the deadline shall be computed by adding one day to the end of 
the prescribed period, unless the Commission, the administrative law 
judge, or another section of this part specifically provides otherwise.
    (d) ``Overnight delivery'' is defined as delivery by the next 
business day.

[72 FR 13689, Mar. 23, 2007]



Sec. 210.7  Service of process and other documents; publication of notices.

    (a) Manner of service. (1) The service of process and all documents 
issued by or on behalf of the Commission or the administrative law 
judge--and the service of all documents issued by parties under 
Sec. Sec. 210.27 through 210.34 of this part--shall be in accordance 
with Sec. 201.16 of this chapter, unless the Commission, the 
administrative law judge, or this or another section of this part 
specifically provides otherwise.
    (2) The service of all initial determinations as defined in Sec. 
210.42 and all documents containing confidential business information--
issued by or on behalf of the Commission or the administrative law 
judge--on a private party shall be effected by serving a copy of the 
document by overnight delivery--as defined in Sec. 210.6(d)--on the 
person to be served, on a member of the partnership to be served, on the 
president, secretary, other executive officer, or member of the board of 
directors of the corporation, association, or other organization to be 
served, or, if an attorney

[[Page 139]]

represents any of the above before the Commission, by serving a copy by 
overnight delivery on such attorney.
    (3) Whenever the Commission effects service of documents issued by 
or on behalf of the Commission or the administrative law judge upon the 
private parties by overnight delivery, service upon the Office of Unfair 
Import Investigations shall also be deemed to have occurred by overnight 
delivery.
    (b) Designation of a single attorney or representative for service 
of process. The service list prepared by the Secretary for each 
investigation will contain the name and address of no more than one 
attorney or other representative for each party to the investigation. In 
the event that two or more attorneys or other persons represent one 
party to the investigation, the party must select one of their number to 
be the lead attorney or representative for service of process. The lead 
attorney or representative for service of process shall state, at the 
time of the filing of its entry of appearance with the Secretary, that 
it has been so designated by the party it represents. (Only those 
persons authorized to receive confidential business information under a 
protective order issued pursuant to Sec. 210.34(a) are eligible to be 
included on the service list for documents containing confidential 
business information.)
    (c) Publication of notices. (1) Notice of action by the Commission 
or an administrative law judge will be published in the Federal Register 
only as specifically provided in paragraph (b)(2) of this section, by 
another section in this chapter, or by order of an administrative law 
judge or the Commission.
    (2) When an administrative law judge or the Commission determines to 
amend or supplement a notice published in accordance with paragraph 
(b)(1) of this section, notice of the amendment will be published in the 
Federal Register.

[60 FR 53119, Oct. 12, 1995, as amended at 72 FR 13960, Mar. 23, 2007; 
73 FR 38320, July 7, 2008]



 Subpart B_Commencement of Preinstitution Proceedings and Investigations



Sec. 210.8  Commencement of preinstitution proceedings.

    A preinstitution proceeding is commenced by filing with the 
Secretary a signed original complaint and the requisite number of true 
copies.
    (a)(1) Unless complainant requests temporary relief, the complainant 
shall file with the Secretary:
    (i) Twelve (12) copies of the nonconfidential version of the 
complaint along with 6 copies of the nonconfidential exhibits, and 6 
copies of the confidential exhibits;
    (ii) Twelve (12) copies of the confidential version of the 
complaint, if any;
    (iii) For each proposed respondent, one copy of the nonconfidential 
version of the complaint and one copy of the confidential version of the 
complaint, if any, along with one copy of the nonconfidential exhibits 
and one copy of the confidential exhibits, and
    (iv) For the government of the foreign country in which each 
proposed respondent is located as indicated in the Complaint, one copy 
of the nonconfidential version of the complaint.
    Note to paragraph (a)(1): The same requirements apply for the filing 
of a supplement to the complaint.
    (2) If the complainant is seeking temporary relief, the complainant 
shall file with the Secretary:
    (i) Twelve (12) copies of the nonconfidential version of the 
complaint along with 6 copies of the nonconfidential exhibits, and 6 
copies of the confidential exhibits;
    (ii) Twelve (12) copies of the confidential version of the 
complaint, if any;
    (iii) For each proposed respondent, one copy of the nonconfidential 
version of the complaint and one copy of the confidential version of the 
complaint, if any, along with one copy of the confidential exhibits;
    (iv) Twelve (12) copies of the nonconfidential version of the motion 
for temporary relief along with 6 copies of any nonconfidential exhibits 
filed with the motion and 6 copies of the confidential exhibits, if any, 
filed with the motion;

[[Page 140]]

    (v) Twelve (12) copies of the confidential version of the motion for 
temporary relief, if any; and
    (vi) For each proposed respondent, one copy of the confidential 
version of the motion along with one copy of the confidential exhibits 
filed with the motion.
    Note to paragraph (a)(2): The same requirements apply for the filing 
of a supplement to the complaint or a supplement to the motion for 
temporary relief.
    (b) Upon the initiative of the Commission. The Commission may upon 
its initiative commence a preinstitution proceeding based upon any 
alleged violation of section 337 of the Tariff Act of 1930.

[59 FR 39039, Aug. 1, 1994, as amended at 60 FR 32444, June 22, 1995; 68 
FR 32978, June 3, 2003; 73 FR 38320, July 7, 2008]



Sec. 210.9  Action of Commission upon receipt of complaint.

    Upon receipt of a complaint alleging violation of section 337 of the 
Tariff Act of 1930, the Commission shall take the following actions:
    (a) Examination of complaint. The Commission shall examine the 
complaint for sufficiency and compliance with the applicable sections of 
this chapter.
    (b) Informal investigatory activity. The Commission shall identify 
sources of relevant information, assure itself of the availability 
thereof, and, if deemed necessary, prepare subpoenas therefore, and give 
attention to other preliminary matters.



Sec. 210.10  Institution of investigation.

    (a)(1) The Commission shall determine whether the complaint is 
properly filed and whether an investigation should be instituted on the 
basis of the complaint. That determination shall be made within 30 days 
after the complaint is filed, unless--
    (i) Exceptional circumstances preclude adherence to a 30-day 
deadline;
    (ii) Additional time is allotted under other sections of this part 
in connection with the preinstitution processing of a motion by the 
complainant for temporary relief;
    (iii) The complainant requests that the Commission postpone the 
determination on whether to institute an investigation; or
    (iv) The complainant withdraws the complaint.
    (2) If exceptional circumstances preclude Commission adherence to 
the 30-day deadline for determining whether to institute an 
investigation on the basis of the complaint, the determination will be 
made as soon after that deadline as possible.
    (3) If additional time is allotted in connection with the 
preinstitution processing of a motion by the complainant for temporary 
relief, the Commission will determine whether to institute an 
investigation and provisionally accept the motion within 35 days after 
the filing of the complaint or by a subsequent deadline computed in 
accordance with Sec. 210.53(a), Sec. 210.54, Sec. 210.55(b), Sec. 
210.57, or Sec. 210.58 as applicable.
    (4) If the complainant desires to have the Commission postpone 
making a determination on whether to institute an investigation in 
response to the complaint, the complainant must file a written request 
with the Secretary. If the request is granted, the determination will be 
rescheduled for whatever date is appropriate in light of the facts.
    (5)(i) The complainant may withdraw the complaint as a matter of 
right at any time before the Commission votes on whether to institute an 
investigation. To effect such withdrawal, the complainant must file a 
written notice with the Commission.
    (ii) If a motion for temporary relief was filed in addition to the 
complaint, the motion must be withdrawn along with the complaint, and 
the complainant must serve copies of the notice of withdrawal on all 
proposed respondents and on the embassies that were served with copies 
of the complaint and motion pursuant to Sec. 210.54.
    (b) An investigation shall be instituted by the publication of a 
notice in the Federal Register. The notice will define the scope of the 
investigation and may be amended as provided in Sec. 210.14 (b) and 
(c).
    (c) If the Commission determines not to institute an investigation 
on the basis of the complaint, the complaint shall be dismissed, and the 
complainant and all proposed respondents will

[[Page 141]]

receive written notice of the Commission's action and the reason(s) 
therefor.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38321, July 7, 2008]



Sec. 210.11  Service of complaint and notice of investigation.

    (a)(1) Unless the Commission institutes temporary relief 
proceedings, upon institution of an investigation, the Commission shall 
serve:
    (i) Copies of the nonconfidential version of the complaint, the 
nonconfidential exhibits, and the notice of investigation upon each 
respondent; and
    (ii) Copies of the nonconfidential version of the complaint and the 
notice of investigation upon the embassy in Washington, DC of the 
country in which each proposed respondent is located as indicated in the 
Complaint.
    (2) If the Commission institutes temporary relief proceedings, upon 
institution of an investigation, the Commission shall serve:
    (i) Copies of the nonconfidential version of the complaint and the 
notice of investigation upon each respondent; and
    (ii) A copy of the notice of investigation upon the embassy in 
Washington, DC of the country in which each proposed respondent is 
located as indicated in the Complaint.
    (3) All respondents named after an investigation has been instituted 
and the governments of the foreign countries in which they are located 
as indicated in the complaint shall be served as soon as possible after 
the respondents are named.
    (4) The Commission shall serve copies of the notice of investigation 
upon the U.S. Department of Health and Human Services, the U.S. 
Department of Justice, the Federal Trade Commission, the U.S. Customs 
Service, and such other agencies and departments as the Commission 
considers appropriate.
    (b) With leave from the presiding administrative law judge, a 
complainant may attempt to effect personal service of the complaint and 
notice of investigation upon a respondent, if the Secretary's efforts to 
serve the respondent have been unsuccessful. If the complainant succeeds 
in serving the respondent by personal service, the complainant must 
notify the administrative law judge and file proof of such service with 
the Secretary.

[73 FR 38321, July 7, 2008]



                           Subpart C_Pleadings



Sec. 210.12  The complaint.

    (a) Contents of the complaint. In addition to conforming with the 
requirements of Sec. 201.8 of this chapter and Sec. Sec. 210.4 and 
210.5 of this part, the complaint shall--
    (1) Be under oath and signed by the complainant or his duly 
authorized officer, attorney, or agent, with the name, address, and 
telephone number of the complainant and any such officer, attorney, or 
agent given on the first page of the complaint, and include a statement 
attesting to the representations in Sec. 210.4(c)(1) through (3);
    (2) Include a statement of the facts constituting the alleged unfair 
methods of competition and unfair acts;
    (3) Describe specific instances of alleged unlawful importations or 
sales, and shall provide the Tariff Schedules of the United States item 
number(s) for importations occurring prior to January 1, 1989, and the 
Harmonized Tariff Schedule of the United States item number(s) for 
importations occurring on or after January 1, 1989;
    (4) State the name, address, and nature of the business (when such 
nature is known) of each person alleged to be violating section 337 of 
the Tariff Act of 1930;
    (5) Include a statement as to whether the alleged unfair methods of 
competition and unfair acts, or the subject matter thereof, are or have 
been the subject of any court or agency litigation, and, if so, include 
a brief summary of such litigation;
    (6)(i) If the complaint alleges a violation of section 337 based on 
infringement of a U.S. patent, or a federally registered copyright, 
trademark, mask work, or vessel hull design, under section 337(a)(1) 
(B), (C), (D), or (E) of the Tariff Act of 1930, include a description 
of the relevant domestic industry as defined in section 337(a)(3) that 
allegedly exists or is in the process of being

[[Page 142]]

established, including the relevant operations of any licensees. 
Relevant information includes but is not limited to:
    (A) Significant investment in plant and equipment;
    (B) Significant employment of labor or capital; or
    (C) Substantial investment in the exploitation of the subject 
patent, copyright, trademark, mask work, or vessel hull design, 
including engineering, research and development, or licensing; or
    (ii) If the complaint alleges a violation of section 337 of the 
Tariff Act of 1930 based on unfair methods of competition and unfair 
acts that have the threat or effect of destroying or substantially 
injuring an industry in the United States or preventing the 
establishment of such an industry under section 337(a)(1)(A) (i) or 
(ii), include a description of the domestic industry affected, including 
the relevant operations of any licensees; or
    (iii) If the complaint alleges a violation of section 337 of the 
Tariff Act of 1930 based on unfair methods of competition or unfair acts 
that have the threat or effect of restraining or monopolizing trade and 
commerce in the United States under section 337(a)(1)(A)(iii), include a 
description of the trade and commerce affected.
    (7) Include a description of the complainant's business and its 
interests in the relevant domestic industry or the relevant trade and 
commerce. For every intellectual property based complaint (regardless of 
the type of intellectual property right involved), include a showing 
that at least one complainant is the owner or exclusive licensee of the 
subject intellectual property; and
    (8) If the alleged violation involves an unfair method of 
competition or an unfair act other than those listed in paragraph 
(a)(6)(i) of this section, state a specific theory and provide 
corroborating data to support the allegation(s) in the complaint 
concerning the existence of a threat or effect to destroy or 
substantially injure a domestic industry, to prevent the establishment 
of a domestic industry, or to restrain or monopolize trade and commerce 
in the United States. The information that should ordinarily be provided 
includes the volume and trend of production, sales, and inventories of 
the involved domestic article; a description of the facilities and 
number and type of workers employed in the production of the involved 
domestic article; profit-and-loss information covering overall 
operations and operations concerning the involved domestic article; 
pricing information with respect to the involved domestic article; when 
available, volume and sales of imports; and other pertinent data.
    (9) Include, when a complaint is based upon the infringement of a 
valid and enforceable U.S. patent--
    (i) The identification of each U.S. patent and a certified copy 
thereof (a legible copy of each such patent will suffice for each 
required copy of the complaint);
    (ii) The identification of the ownership of each involved U.S. 
patent and a certified copy of each assignment of each such patent (a 
legible copy thereof will suffice for each required copy of the 
complaint);
    (iii) The identification of each licensee under each involved U.S. 
patent;
    (iv) A copy of each license agreement (if any) for each involved 
U.S. patent that complainant relies upon to establish its standing to 
bring the complaint or to support its contention that a domestic 
industry as defined in section 337(a)(3) exists or is in the process of 
being established as a result of the domestic activities of one or more 
licensees;
    (v) When known, a list of each foreign patent, each foreign patent 
application (not already issued as a patent) and each foreign patent 
application that has been denied, abandoned or withdrawn corresponding 
to each involved U.S. patent, with an indication of the prosecution 
status of each such patent application;
    (vi) A nontechnical description of the invention of each involved 
U.S. patent;
    (vii) A reference to the specific claims in each involved U.S. 
patent that allegedly cover the article imported or sold by each person 
named as violating section 337 of the Tariff Act of 1930, or the process 
under which such article was produced;

[[Page 143]]

    (viii) A showing that each person named as violating section 337 of 
the Tariff Act of 1930 is importing or selling the article covered by, 
or produced under the involved process covered by, the above specific 
claims of each involved U.S. patent. The complainant shall make such 
showing by appropriate allegations, and when practicable, by a chart 
that applies each asserted independent claim of each involved U.S. 
patent to a representative involved article of each person named as 
violating section 337 of the Tariff Act or to the process under which 
such article was produced;
    (ix) A showing that an industry in the United States, relating to 
the articles protected by the patent exists or is in the process of 
being established. The complainant shall make such showing by 
appropriate allegations, and when practicable, by a chart that applies 
an exemplary claim of each involved U.S. patent to a representative 
involved domestic article or to the process under which such article was 
produced; and
    (x) Drawings, photographs, or other visual representations of both 
the involved domestic article or process and the involved article of 
each person named as violating section 337 of the Tariff Act of 1930, or 
of the process utilized in producing the imported article, and, when a 
chart is furnished under paragraphs (a)(9)(viii) and (a)(9)(ix) of this 
section, the parts of such drawings, photographs, or other visual 
representations should be labeled so that they can be read in 
conjunction with such chart; and
    (10) Include, when a complaint is based upon the infringement of a 
federally registered copyright, trademark, mask work, or vessel hull 
design--
    (i) The identification of each licensee under each involved 
copyright, trademark, mask work, and vessel hull design;
    (ii) A copy of each license agreement (if any) that complainant 
relies upon to establish its standing to bring the complaint or to 
support its contention that a domestic industry as defined in section 
337(a)(3) exists or is in the process of being established as a result 
of the domestic activities of one or more licensees.
    (11) Contain a request for relief, and if temporary relief is 
requested under section 337 (e) and/or (f) of the Tariff Act of 1930, a 
motion for such relief shall accompany the complaint as provided in 
Sec. 210.52(a) or may follow the complaint as provided in Sec. 
210.53(a).
    (b) Submissions of articles as exhibits. At the time the complaint 
is filed, if practicable, the complainant shall submit both the domestic 
article and all imported articles that are the subject of the complaint.
    (c) Additional material to accompany each patent-based complaint. 
There shall accompany the submission of the original of each complaint 
based upon the alleged unauthorized importation or sale of an article 
covered by, or produced under a process covered by, the claims of a 
valid U.S. patent the following:
    (1) One certified copy of the U.S. Patent and Trademark Office 
prosecution history for each involved U.S. patent, plus three additional 
copies thereof; and
    (2) Four copies of each patent and applicable pages of each 
technical reference mentioned in the prosecution history of each 
involved U.S. patent.
    (d) Additional material to accompany each registered trademark-based 
complaint. There shall accompany the submission of the original of each 
complaint based upon the alleged unauthorized importation or sale of an 
article covered by a federally registered trademark, one certified copy 
of the Federal registration and three additional copies, and one 
certified copy of the prosecution history for each federally registered 
trademark.
    (e) Additional material to accompany each complaint based on a non-
Federally registered trademark. There shall accompany the submission of 
the original of each complaint based upon the alleged unauthorized 
importation or sale of an article covered by a non-Federally registered 
trademark the following:
    (1) A detailed and specific description of the alleged trademark;
    (2) Information concerning prior attempts to register the alleged 
trademark; and
    (3) Information on the status of current attempts to register the 
alleged trademark.

[[Page 144]]

    (f) Additional material to accompany each copyright-based complaint. 
There shall accompany the submission of the original of each complaint 
based upon the alleged unauthorized importation or sale of an article 
covered by a copyright one certified copy of the Federal registration 
and three additional copies;
    (g) Additional material to accompany each registered mask work-based 
complaint. There shall accompany the submission of the original of each 
complaint based upon the alleged unauthorized importation or sale of a 
semiconductor chip in a manner that constitutes infringement of a 
Federally registered mask work, one certified copy of the Federal 
registration and three additional copies;
    (h) Additional material to accompany each vessel hull design-based 
complaint. There shall accompany the submission of the original of each 
complaint based upon the alleged unauthorized importation or sale of an 
article covered by a vessel hull design, one certified copy of the 
Federal registration (including all deposited drawings, photographs, or 
other pictorial representations of the design), and three additional 
copies;
    (i) Initial disclosures. Complainant shall serve on each respondent 
represented by counsel who has agreed to be bound by the terms of the 
protective order one copy of each document submitted with the complaint 
pursuant to Sec. 210.12(c) through (h) within five days of service of a 
notice of appearance and agreement to be bound by the terms of the 
protective order; and
    (j) Duty to supplement complaint. Complainant shall supplement the 
complaint prior to institution of an investigation if complainant 
obtains information upon the basis of which he knows or reasonably 
should know that a material legal or factual assertion in the complaint 
is false or misleading.

[59 FR 39039, Aug. 1, 1994; 59 FR 64286, Dec. 14, 1994; 73 FR 38321, 
July 7, 2008]



Sec. 210.13  The response.

    (a) Time for response. Except as provided in Sec. 210.59(a) and 
unless otherwise ordered in the notice of investigation or by the 
administrative law judge, respondents shall have 20 days from the date 
of service of the complaint and notice of investigation, by the 
Commission under Sec. 210.11(a) or by a party under Sec. 210.11(b), 
within which to file a written response to the complaint and the notice 
of investigation. When the investigation involves a motion for temporary 
relief and has not been declared ``more complicated,'' the response to 
the complaint and notice of investigation must be filed along with the 
response to the motion for temporary relief--i.e., within 10 days after 
service of the complaint, notice of investigation, and the motion for 
temporary relief by the Commission under Sec. 210.11(a) or by a party 
under Sec. 210.11(b). (See Sec. 210.59.)
    (b) Content of the response. In addition to conforming to the 
requirements of Sec. 201.8 of this chapter and Sec. Sec. 210.4 and 
210.5 of this part, each response shall be under oath and signed by 
respondent or his duly authorized officer, attorney, or agent with the 
name, address, and telephone number of the respondent and any such 
officer, attorney, or agent given on the first page of the response. 
Each respondent shall respond to each allegation in the complaint and in 
the notice of investigation, and shall set forth a concise statement of 
the facts constituting each ground of defense. There shall be a specific 
admission, denial, or explanation of each fact alleged in the complaint 
and notice, or if the respondent is without knowledge of any such fact, 
a statement to that effect. Allegations of a complaint and notice not 
thus answered may be deemed to have been admitted. Each response shall 
include, when available, statistical data on the quantity and value of 
imports of the involved article. Respondents who are importers must also 
provide the Harmonized Tariff Schedule item number(s) for importations 
of the accused imports occurring on or after January 1, 1989, and the 
Tariff Schedules of the United States item number(s) for importations 
occurring before January 1, 1989. Each response shall also include a 
statement concerning the respondent's capacity to produce the subject 
article and the relative significance of the United States market to its 
operations. Respondents who are not manufacturing their accused imports 
shall state the name and address of the supplier(s) of

[[Page 145]]

those imports. Affirmative defenses shall be pleaded with as much 
specificity as possible in the response. When the alleged unfair methods 
of competition and unfair acts are based upon the claims of a valid U.S. 
patent, the respondent is encouraged to make the following showing when 
appropriate:
    (1) If it is asserted in defense that the article imported or sold 
by respondents is not covered by, or produced under a process covered 
by, the claims of each involved U.S. patent, a showing of such 
noncoverage for each involved claim in each U.S. patent in question 
shall be made, which showing may be made by appropriate allegations and, 
when practicable, by a chart that applies the involved claims of each 
U.S. patent in question to a representative involved imported article of 
the respondent or to the process under which such article was produced;
    (2) Drawings, photographs, or other visual representations of the 
involved imported article of respondent or the process utilized in 
producing such article, and, when a chart is furnished under paragraph 
(b)(1) of this section, the parts of such drawings, photographs, or 
other visual representations, should be labeled so that they can be read 
in conjunction with such chart; and
    (3) If the claims of any involved U.S. patent are asserted to be 
invalid or unenforceable, the basis for such assertion, including, when 
prior art is relied on, a showing of how the prior art renders each 
claim invalid or unenforceable and a copy of such prior art. For good 
cause, the presiding administrative law judge may waive any of the 
substantive requirements imposed under this paragraph or may impose 
additional requirements.
    (c) Submission of article as exhibit. At the time the response is 
filed, if practicable, the respondent shall submit the accused article 
imported or sold by that respondent, unless the article has already been 
submitted by the complainant.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38322, July 7, 2008]



Sec. 210.14  Amendments to pleadings and notice; supplemental submissions; 

counterclaims.

    (a) Preinstitution amendments. The complaint may be amended at any 
time prior to the institution of the investigation.
    (b) Postinstitution amendments generally. (1) After an investigation 
has been instituted, the complaint or notice of investigation may be 
amended only by leave of the Commission for good cause shown and upon 
such conditions as are necessary to avoid prejudicing the public 
interest and the rights of the parties to the investigation. A motion 
for amendment must be made to the presiding administrative law judge. If 
the proposed amendment of the complaint would require amending the 
notice of investigation, the presiding administrative law judge may 
grant the motion only by filing with the Commission an initial 
determination. All other dispositions of such motions shall be by order.
    (2) If disposition of the issues in an investigation on the merits 
will be facilitated, or for other good cause shown, the presiding 
administrative law judge may allow appropriate amendments to pleadings 
other than complaints upon such conditions as are necessary to avoid 
prejudicing the public interest and the rights of the parties to the 
investigation.
    (c) Postinstitution amendments to conform to evidence. When issues 
not raised by the pleadings or notice of investigation, but reasonably 
within the scope of the pleadings and notice, are considered during the 
taking of evidence by express or implied consent of the parties, they 
shall be treated in all respects as if they had been raised in the 
pleadings and notice. Such amendments of the pleadings and notice as may 
be necessary to make them conform to the evidence and to raise such 
issues shall be allowed at any time, and shall be effective with respect 
to all parties who have expressly or impliedly consented.
    (d) Supplemental submissions. The administrative law judge may, upon 
reasonable notice and on such terms as are just, permit service of a 
supplemental submission setting forth transactions, occurrences, or 
events that

[[Page 146]]

have taken place since the date of the submission sought to be 
supplemented and that are relevant to any of the issues involved.
    (e) Counterclaims. At any time after institution of the 
investigation, but not later than ten business days before the 
commencement of the evidentiary hearing, a respondent may file a 
counterclaim at the Commission in accordance with section 337(c) of the 
Tariff Act of 1930. Counterclaims shall be filed in a separate document. 
A respondent who files such a counterclaim shall immediately file a 
notice of removal with a United States district court in which venue for 
any of the counterclaims raised by the respondent would exist under 28 
U.S.C. 1391.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994]



                            Subpart D_Motions



Sec. 210.15  Motions.

    (a) Presentation and disposition. (1) During the period between the 
institution of an investigation and the assignment of the investigation 
to a presiding administrative law judge, all motions shall be addressed 
to the chief administrative law judge. During the time that an 
investigation or related proceeding is before an administrative law 
judge, all motions therein shall be addressed to the administrative law 
judge.
    (2) When an investigation or related proceeding is before the 
Commission, all motions shall be addressed to the Chairman of the 
Commission. A motion to amend the complaint and notice of investigation 
to name an additional respondent after institution shall be served on 
the proposed respondent. All motions shall be filed with the Secretary 
and shall be served upon each party.
    (b) Content. All written motions shall state the particular order, 
ruling, or action desired and the grounds therefor.
    (c) Responses to motions. Within 10 days after service of any 
written motions, or within such longer or shorter time as may be 
designated by the administrative law judge or the Commission, a 
nonmoving party, or in the instance of a motion to amend the complaint 
or notice of investigation to name an additional respondent after 
institution, the proposed respondent, shall respond or he may be deemed 
to have consented to the granting of the relief asked for in the motion. 
The moving party shall have no right to reply, except as permitted by 
the administrative law judge or the Commission.
    (d) Motions for extensions. As a matter of discretion, the 
administrative law judge or the Commission may waive the requirements of 
this section as to motions for extension of time, and may rule upon such 
motions ex parte.



Sec. 210.16  Default.

    (a) Definition of default. (1) A party shall be found in default if 
it fails to respond to the complaint and notice of investigation in the 
manner prescribed in Sec. 210.13 or Sec. 210.59(c), or otherwise fails 
to answer the complaint and notice, and fails to show cause why it 
should not be found in default.
    (2) A party may be found in default as a sanction for abuse of 
process, under Sec. 210.4(c), or failure to make or cooperate in 
discovery, under Sec. 210.33(b).
    (b) Procedure for determining default. (1) If a respondent has 
failed to respond or appear in the manner described in paragraph (a)(1) 
of this section, a party may file a motion for, or the administrative 
law judge may issue upon his own initiative, an order directing that 
respondent to show cause why it should not be found in default. If the 
respondent fails to make the necessary showing, the administrative law 
judge shall issue an initial determination finding the respondent in 
default. An administrative law judge's decision denying a motion for a 
finding of default under paragraph (a)(1) of this section shall be in 
the form of an order.
    (2) Any party may file a motion for issuance of, or the 
administrative law judge may issue on his own initiative, an initial 
determination finding a party in default for abuse of process under 
Sec. 210.4(c) or failure to make or cooperate in discovery. A motion 
for a finding of default as a sanction for abuse of process or failure 
to make or cooperate in discovery shall be granted

[[Page 147]]

by initial determination or denied by order.
    (3) A party found in default shall be deemed to have waived its 
right to appear, to be served with documents, and to contest the 
allegations at issue in the investigation.
    (c) Relief against a respondent in default. (1) After a respondent 
has been found in default by the Commission, the complainant may file 
with the Commission a declaration that it is seeking immediate entry of 
relief against the respondent in default. The facts alleged in the 
complaint will be presumed to be true with respect to the defaulting 
respondent. The Commission may issue an exclusion order, a cease and 
desist order, or both, affecting the defaulting respondent only after 
considering the effect of such order(s) upon the public health and 
welfare, competitive conditions in the U.S. economy, the production of 
like or directly competitive articles in the United States, and U.S. 
consumers, and concluding that the order(s) should still be issued in 
light of the aforementioned public interest factors.
    (2) In any motion requesting the entry of default or the termination 
of the investigation with respect to the last remaining respondent in 
the investigation, the complainant shall declare whether it is seeking a 
general exclusion order. The Commission may issue a general exclusion 
order pursuant to section 337(g)(2) of the Tariff Act of 1930, 
regardless of the source or importer of the articles concerned, provided 
that a violation of section 337 of the Tariff Act of 1930 is established 
by substantial, reliable, and probative evidence, and only after 
considering the aforementioned public interest factors and the 
requirements of Sec. 210.50(c).

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994]



Sec. 210.17  Failures to act other than the statutory forms of default.

    Failures to act other than the defaults listed in Sec. 210.16 may 
provide a basis for the presiding administrative law judge or the 
Commission to draw adverse inferences and to issue findings of fact, 
conclusions of law, determinations (including a determination on 
violation of section 337 of the Tariff Act of 1930), and orders that are 
adverse to the party who fails to act. Such failures include, but are 
not limited to:
    (a) Failure to respond to a motion that materially alters the scope 
of the investigation or a related proceeding;
    (b) Failure to respond to a motion for temporary relief pursuant to 
Sec. 210.59;
    (c) Failure to respond to a motion for summary determination under 
Sec. 210.18;
    (d) Failure to appear at a hearing before the administrative law 
judge after filing a written response to the complaint or motion for 
temporary relief, or failure to appear at a hearing before the 
Commission;
    (e) Failure to file a brief or other written submission requested by 
the administrative law judge or the Commission during an investigation 
or a related proceeding;
    (f) Failure to respond to a petition for review of an initial 
determination, a petition for reconsideration of an initial 
determination, or an application for interlocutory review of an 
administrative law judge's order;
    (g) Failure to file a brief or other written submission requested by 
the administrative law judge or the Commission; and
    (h) Failure to participate in temporary relief bond forfeiture 
proceedings under Sec. 210.70.

The presiding administrative law judge or the Commission may take action 
under this rule sua sponte or in response to the motion of a party.



Sec. 210.18  Summary determinations.

    (a) Motions for summary determinations. Any party may move with any 
necessary supporting affidavits for a summary determination in its favor 
upon all or any part of the issues to be determined in the 
investigation. Counsel or other representatives in support of the 
complaint may so move at any time after 20 days following the date of 
service of the complaint and notice instituting the investigation. Any 
other party or a respondent may so move at any time after the date of 
publication of the notice of investigation in the Federal Register. Any 
such motion by any party in connection with the issue of permanent 
relief, however, must be filed at least 60 days before the

[[Page 148]]

date fixed for any hearing provided for in Sec. 210.36(a)(1). 
Notwithstanding any other rule, the deadline for filing summary 
determinations shall be computed by counting backward at least 60 days 
including the first calendar day prior to the date the hearing is 
scheduled to commence. If the end of the 60 day period falls on a 
weekend or holiday, the period extends until the end of the next 
business day. Under exceptional circumstances and upon motion, the 
presiding administrative law judge may determine that good cause exists 
to permit a summary determination motion to be filed out of time.
    (b) Opposing affidavits; oral argument; time and basis for 
determination. Any nonmoving party may file opposing affidavits within 
10 days after service of the motion for summary determination. The 
administrative law judge may, in his discretion or at the request of any 
party, set the matter for oral argument and call for the submission of 
briefs or memoranda. The determination sought by the moving party shall 
be rendered if pleadings and any depositions, answers to 
interrogatories, and admissions on file, together with the affidavits, 
if any, show that there is no genuine issue as to any material fact and 
that the moving party is entitled to a summary determination as a matter 
of law.
    (c) Affidavits. Supporting and opposing affidavits shall be made on 
personal knowledge, shall set forth such facts as would be admissible in 
evidence, and shall show affirmatively that the affiant is competent to 
testify to the matters stated therein. Sworn or certified copies of all 
papers or parts thereof referred to in an affidavit shall be attached 
thereto or served therewith. The administrative law judge may permit 
affidavits to be supplemented or opposed by depositions, answers to 
interrogatories, or further affidavits. When a motion for summary 
determination is made and supported as provided in this section, a party 
opposing the motion may not rest upon the mere allegations or denials of 
the opposing party's pleading, but the opposing party's response, by 
affidavits, answers to interrogatories, or as otherwise provided in this 
section, must set forth specific facts showing that there is a genuine 
issue of fact for the evidentiary hearing under Sec. 210.36(a)(1) or 
(2). If the opposing party does not so respond, a summary determination, 
if appropriate, shall be rendered against the opposing party.
    (d) Refusal of application for summary determination; continuances 
and other orders. Should it appear from the affidavits of a party 
opposing the motion that the party cannot, for reasons stated, present 
by affidavit facts essential to justify the party's opposition, the 
administrative law judge may refuse the application for summary 
determination, or may order a continuance to permit affidavits to be 
obtained or depositions to be taken or discovery to be had or may make 
such other order as is appropriate, and a ruling to that effect shall be 
made a matter of record.
    (e) Order establishing facts. If on motion under this section a 
summary determination is not rendered upon the whole case or for all the 
relief asked and a hearing is necessary, the administrative law judge, 
by examining the pleadings and the evidence and by interrogating counsel 
if necessary, shall if practicable ascertain what material facts exist 
without substantial controversy and what material facts are actually and 
in good faith controverted. The administrative law judge shall thereupon 
make an order specifying the facts that appear without substantial 
controversy and directing such further proceedings in the investigation 
as are warranted. The facts so specified shall be deemed established.
    (f) Order of summary determination. An order of summary 
determination shall constitute an initial determination of the 
administrative law judge.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38322, July 7, 2008]



Sec. 210.19  Intervention.

    Any person desiring to intervene in an investigation or a related 
proceeding under this part shall make a written motion. The motion shall 
have attached to it a certificate showing that the motion has been 
served upon each party to the investigation or related proceeding in the 
manner described in Sec. 201.16(b) of this chapter. Any party may file 
a response to the

[[Page 149]]

motion in accordance with Sec. 210.15(c) of this part, provided that 
the response is accompanied by a certificate confirming that the 
response was served on the proposed intervenor and all other parties. 
The Commission, or the administrative law judge by initial 
determination, may grant the motion to the extent and upon such terms as 
may be proper under the circumstances.



Sec. 210.20  Declassification of confidential information.

    (a) Any party may move to declassify documents (or portions thereof) 
that have been designated confidential by the submitter but that do not 
satisfy the confidentiality criteria set forth in Sec. 201.6(a) of this 
chapter. All such motions, whether brought at any time during the 
investigation or after conclusion of the investigation shall be 
addressed to and ruled upon by the presiding administrative law judge, 
or if the investigation is not before a presiding administrative law 
judge, by the chief administrative law judge or such administrative law 
judge as he may designate.
    (b) Following issuance of a public version of the initial 
determination on whether there is a violation of section 337 of the 
Tariff Act of 1930 or an initial determination that would otherwise 
terminate the investigation (if adopted by the Commission), the granting 
of a motion, in whole or part, to declassify information designated 
confidential shall constitute an initial determination, except as to 
that information for which no submissions in opposition to 
declassification have been filed.



Sec. 210.21  Termination of investigations.

    (a) Motions for termination. (1) Any party may move at any time 
prior to the issuance of an initial determination on violation of 
section 337 of the Tariff Act of 1930 to terminate an investigation in 
whole or in part as to any or all respondents, on the basis of 
withdrawal of the complaint or certain allegations contained therein, or 
for good cause other than the grounds listed in paragraph (a)(2) of this 
section. A motion for termination of an investigation based on 
withdrawal of the complaint shall contain a statement that there are no 
agreements, written or oral, express or implied between the parties 
concerning the subject matter of the investigation, or if there are any 
agreements concerning the subject matter of the investigation, all such 
agreements shall be identified, and if written, a copy shall be filed 
with the Commission along with the motion. If the agreement contains 
confidential business information within the meaning of Sec. 201.6(a) 
of this chapter, at least one copy of the agreement with such 
information deleted shall accompany the motion, in addition to a copy of 
the confidential version. The presiding administrative law judge may 
grant the motion in an initial determination upon such terms and 
conditions as he deems proper.
    (2) Any party may move at any time to terminate an investigation in 
whole or in part as to any or all respondents on the basis of a 
settlement, a licensing or other agreement, including an agreement to 
present the matter for arbitration, or a consent order, as provided in 
paragraphs (b), (c) and (d) of this section.
    (b) Termination by Settlement. (1) An investigation before the 
Commission may be terminated as to one or more respondents pursuant to 
section 337(c) of the Tariff Act of 1930 on the basis of a licensing or 
other settlement agreement. A motion for termination by settlement shall 
contain copies of the licensing or other settlement agreement, any 
supplemental agreements, and a statement that there are no other 
agreements, written or oral, express or implied between the parties 
concerning the subject matter of the investigation. If the licensing or 
other settlement agreement contains confidential business information 
within the meaning of Sec. 201.6(a) of this chapter, a copy of the 
agreement with such information deleted shall accompany the motion.
    (2) The motion and agreement(s) shall be certified by the 
administrative law judge to the Commission with an initial determination 
if the motion for termination is granted. If the licensing or other 
agreement or the initial determination contains confidential business 
information, copies of the agreement and initial determination with

[[Page 150]]

confidential business information deleted shall be certified to the 
Commission simultaneously with the confidential versions of such 
documents. Notice of the initial determination and the agreement shall 
be provided to the U.S. Department of Health and Human Services, the 
U.S. Department of Justice, the Federal Trade Commission, the U.S. 
Customs Service, and such other departments and agencies as the 
Commission deems appropriate. If the Commission's final disposition of 
the initial determination results in termination of the investigation in 
its entirety, a notice will be published in the Federal Register. 
Termination by settlement need not constitute a determination as to 
violation of section 337 of the Tariff Act of 1930.
    (c) Termination by entry of consent order. An investigation before 
the Commission may be terminated pursuant to section 337(c) of the 
Tariff Act of 1930 on the basis of a consent order. Termination by 
consent order need not constitute a determination as to violation of 
section 337.
    (1) Opportunity to submit proposed consent order--(i) Prior to 
institution of an investigation. Where time, the nature of the 
proceeding, and the public interest permit, any person being 
investigated pursuant to section 603 of the Trade Act of 1974 (19 U.S.C. 
Sec. 2482) shall be afforded the opportunity to submit to the 
Commission a proposal for disposition of the matter under investigation 
in the form of a consent order stipulation that incorporates a proposed 
consent order executed by or on behalf of such person and that complies 
with the requirements of paragraph (c)(3) of this section.
    (ii) Subsequent to institution of an investigation. In 
investigations under section 337 of the Tariff Act of 1930, a proposal 
to terminate by consent order shall be submitted as a motion to the 
administrative law judge with a stipulation that incorporates a proposed 
consent order. If the stipulation contains confidential business 
information within the meaning of Sec. 201.6(a) of this chapter, a copy 
of the stipulation with such information deleted shall accompany the 
motion. The stipulation shall comply with the requirements of paragraph 
(c)(3)(i) of this section. At any time prior to commencement of the 
hearing, the motion may be filed by one or more respondents, and may be 
filed jointly with other parties to the investigation. Upon request and 
for good cause shown, the administrative law judge may consider such a 
motion during or after a hearing. The filing of the motion shall not 
stay proceedings before the administrative law judge unless the 
administrative law judge so orders. The administrative law judge shall 
promptly file with the Commission an initial determination regarding the 
motion for termination if the motion is granted. If the initial 
determination contains confidential business information, a copy of the 
initial determination with such information deleted shall be filed with 
the Commission simultaneously with the filing of the confidential 
version of the initial determination. Pending disposition by the 
Commission of a consent order stipulation, a party may not, absent good 
cause shown, withdraw from the stipulation once it has been submitted 
pursuant to this section.
    (2) Commission disposition of consent order. (i) If an initial 
determination granting the motion for termination based on a consent 
order stipulation is filed with the Commission, notice of the initial 
determination and the consent order stipulation shall be provided to the 
U.S. Department of Health and Human Services, the U.S. Department of 
Justice, the Federal Trade Commission, the U.S. Customs Service, and 
such other departments and agencies as the Commission deems appropriate.
    (ii) The Commission, after considering the effect of the settlement 
by consent order upon the public health and welfare, competitive 
conditions in the U.S. economy, the production of like or directly 
competitive articles in the United States, and U.S. consumers, shall 
dispose of the initial determination according to the procedures of 
Sec. Sec. 210.42 through 210.45. If the Commission's final disposition 
of the initial determination results in termination of the investigation 
in its entirety, a notice will be published in the Federal Register. 
Termination by consent order need not constitute a determination as to 
violation of section 337.

[[Page 151]]

Should the Commission reverse the initial determination, the parties are 
in no way bound by their proposal in later actions before the 
Commission.
    (3) Contents of consent order stipulation--(i) Contents. (A) Every 
consent order stipulation shall contain, in addition to the proposed 
consent order, the following:
    (1) An admission of all jurisdictional facts;
    (2) An express waiver of all rights to seek judicial review or 
otherwise challenge or contest the validity of the consent order;
    (3) A statement that the signatories to the consent order 
stipulation will cooperate with and will not seek to impede by 
litigation or other means the Commission's efforts to gather information 
under subpart I of this part; and
    (4) A statement that the enforcement, modification, and revocation 
of the consent order will be carried out pursuant to subpart I of this 
part, incorporating by reference the Commission's Rules of Practice and 
Procedure.
    (B) In the case of an intellectual property-based investigation, the 
consent order stipulation shall also contain--
    (1) A statement that the consent order shall not apply with respect 
to any claim of any intellectual property right that has expired or been 
found or adjudicated invalid or unenforceable by the Commission or a 
court or agency of competent jurisdiction, provided that such finding or 
judgment has become final and nonreviewable; and
    (2) A statement that each signatory to the stipulation who was a 
respondent in the investigation will not seek to challenge the validity 
of the intellectual property right(s), in any administrative or judicial 
proceeding to enforce the consent order.
    (C) The consent order stipulation may contain a statement that the 
signing thereof is for settlement purposes only and does not constitute 
admission by any respondent that an unfair act has been committed.
    (ii) Effect, interpretation, and reporting. The consent order shall 
have the same force and effect and may be enforced, modified, or revoked 
in the same manner as is provided in section 337 of the Tariff Act of 
1930 and this part for other Commission actions. The Commission may 
require periodic compliance reports pursuant to subpart I of this part 
to be submitted by the person entering into the consent order 
stipulation.
    (d) Termination based upon arbitration agreement. Upon filing of a 
motion for termination with the administrative law judge or the 
Commission, a section 337 investigation may be terminated as to one or 
more respondents pursuant to section 337(c) of the Tariff Act of 1930 on 
the basis of an agreement between complainant and one or more of the 
respondents to present the matter for arbitration. The motion and a copy 
of the arbitration agreement shall be certified by the administrative 
law judge to the Commission with an initial determination if the motion 
for termination is granted. If the agreement or the initial 
determination contains confidential business information, copies of the 
agreement and initial determination with confidential business 
information deleted shall be certified to the Commission with the 
confidential versions of such documents. A notice will be published in 
the Federal Register if the Commission's final disposition of the 
initial determination results in termination of the investigation in its 
entirety. Termination based on an arbitration agreement does not 
constitute a determination as to violation of section 337 of the Tariff 
Act of 1930.
    (e) Effect of termination. Termination issued by the administrative 
law judge shall constitute an initial determination.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994; 60 
FR 53120, Oct. 12, 1995; 73 FR 38322, July 7, 2008]



Sec. 210.22  [Reserved]



Sec. 210.23  Suspension of investigation.

    Any party may move to suspend an investigation under this part, 
because of the pendency of proceedings before the Secretary of Commerce 
or the administering authority pursuant to section 337(b)(3) of the 
Tariff Act of 1930. The administrative law judge or the Commission also 
may raise the issue sua sponte. An administrative law

[[Page 152]]

judge's decision granting a motion for suspension shall be in the form 
of an initial determination.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994]



Sec. 210.24  Interlocutory appeals.

    Rulings by the administrative law judge on motions may not be 
appealed to the Commission prior to the administrative law judge's 
issuance of an initial determination, except in the following 
circumstances:
    (a) Appeals without leave of the administrative law judge. The 
Commission may in its discretion entertain interlocutory appeals, except 
as provided in Sec. 210.64, when a ruling of the administrative law 
judge:
    (1) Requires the disclosure of Commission records or requires the 
appearance of Government officials pursuant to Sec. 210.32(c)(2); or
    (2) Denies an application for intervention under Sec. 210.19. 
Appeals from such rulings may be sought by filing an application for 
review, not to exceed 15 pages, with the Commission within five days 
after service of the administrative law judge's ruling. An answer to the 
application for review may be filed within five days after service of 
the application. The application for review should specify the person or 
party taking the appeal, designate the ruling or part thereof from which 
appeal is being taken, and specify the reasons and present arguments as 
to why review is being sought. The Commission may, upon its own motion, 
enter an order staying the return date of an order issued by the 
administrative law judge pursuant to Sec. 210.32(c)(2) or may enter an 
order placing the matter on the Commission's docket for review. Any 
order placing the matter on the Commission's docket for review will set 
forth the scope of the review and the issues that will be considered and 
will make provision for the filing of briefs if deemed appropriate by 
the Commission.
    (b) Appeals with leave of the administrative law judge. (1) Except 
as otherwise provided in paragraph (a) of this section, Sec. 210.64, 
and paragraph (b)(2) of this section, applications for review of a 
ruling by an administrative law judge may be allowed only upon request 
made to the administrative law judge and upon determination by the 
administrative law judge in writing, with justification in support 
thereof, that the ruling involves a controlling question of law or 
policy as to which there is substantial ground for difference of 
opinion, and that either an immediate appeal from the ruling may 
materially advance the ultimate completion of the investigation or 
subsequent review will be an inadequate remedy.
    (2) Applications for review of a ruling by an administrative law 
judge under Sec. 210.5(e)(1) as to whether information designated 
confidential by the supplier is entitled to confidential treatment under 
Sec. 210.5(b) may be allowed only upon request made to the 
administrative law judge and upon determination by the administrative 
law judge in writing, with justification in support thereof.
    (3) A written application for review under paragraph (b)(1) or 
(b)(2) of this section shall not exceed 15 pages and may be filed within 
five days after service of the administrative law judge's determination. 
An answer to the application for review may be filed within five days 
after service of the application for review. Thereupon, the Commission 
may, in its discretion, permit an appeal. Unless otherwise ordered by 
the Commission, Commission review, if permitted, shall be confined to 
the application for review and answer thereto, without oral argument or 
further briefs.
    (c) Investigation not stayed. Application for review under this 
section shall not stay the investigation before the administrative law 
judge unless the administrative law judge or the Commission shall so 
order.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994]



Sec. 210.25  Sanctions.

    (a)(1) Any party may file a motion for sanctions for abuse of 
process under Sec. 210.4(d)(1), abuse of discovery under Sec. 
210.27(d)(3), failure to make or cooperate in discovery under Sec. 
210.33 (b) or (c), or violation of a protective order under Sec. 
210.34(c). A motion alleging abuse of process should be filed promptly 
after the requirements of Sec. 210.4(d)(1)(i) have been satisfied. A 
motion alleging abuse

[[Page 153]]

of discovery, failure to make or cooperate in discovery, or violation of 
a protective order should be filed promptly after the allegedly 
sanctionable conduct is discovered.
    (2) The administrative law judge (when the investigation or related 
proceeding is before him) or the Commission (when the investigation or 
related proceeding is before it) also may raise the sanction issue sua 
sponte. (See also Sec. Sec. 210.4(d)(1)(ii), 210.27(d)(3), 210.33(c), 
and 210.34(c).)
    (b) A motion for sanctions shall be addressed to the presiding 
administrative law judge, if the allegedly sanctionable conduct occurred 
and is discovered while the administrative law judge is presiding in an 
investigation or in a related proceeding. During an investigation, the 
administrative law judge's ruling on the motion shall be in the form of 
an order, if it is issued before or concurrently with the initial 
determination concerning violation of section 337 of the Tariff Act of 
1930 or termination of the investigation. In a related proceeding, the 
administrative law judge's ruling shall be in the form of an order, 
regardless of the point in time at which the order is issued.
    (c) A motion for sanctions shall be addressed to the Commission, if 
the allegedly sanctionable conduct occurred while the Commission is 
presiding or is filed after the subject investigation or related 
proceeding is terminated. The Commission may assign the motion to an 
administrative law judge for issuance of a recommended determination. 
The deadlines and procedures that will be followed in processing the 
recommended determination will be set forth in the Commission order 
assigning the motion to an administrative law judge.
    (d) If an administrative law judge's order concerning sanctions is 
issued before the initial determination concerning violation of section 
337 of the Tariff Act of 1930 or termination of the investigation, it 
may be appealed under Sec. 210.24(b)(1) with leave from the 
administrative law judge, if the requirements of that section are 
satisfied. If the order is issued concurrently with the initial 
determination, the order may be appealed by filing a petition meeting 
the requirements of Sec. 210.43(b). The periods for filing such 
petitions and responding to the petitions will be specified in the 
Commission notice issued pursuant to Sec. 210.42(i), if the initial 
determination has granted a motion for termination of the investigation, 
or in the Commission notice issued pursuant to Sec. 210.46(a), if the 
initial determination concerns violation of section 337. The Commission 
will determine whether to adopt the order after disposition of the 
initial determination concerning violation of section 337 or termination 
of the investigation.
    (e) If the administrative law judge's ruling on the motion for 
sanctions is in the form of a recommended determination pursuant to 
paragraph (c) of this section, the deadlines and procedures for parties 
to contest the recommended determination will be set forth in the 
Commission order assigning the motion to an administrative law judge.
    (f) If a motion for sanctions is filed with the administrative law 
judge during an investigation, he may defer his adjudication of the 
motion until after he has issued a final initial determination 
concerning violation of section 337 of the Tariff Act of 1930 or 
termination of investigation. If the administrative law judge defers his 
adjudication in such a manner, his ruling on the motion for sanctions 
must be in the form of a recommended determination and shall be issued 
no later than 30 days after issuance of the Commission's final 
determination on violation of section 337 or termination of the 
investigation. To aid the Commission in determining whether to adopt a 
recommended determination, any party may file written comments with the 
Commission 14 days after service of the recommended determination. 
Replies to such comments may be filed within seven days after service of 
the comments. The Commission will determine whether to adopt the 
recommended determination after reviewing the parties' arguments and 
taking any other steps the Commission deems appropriate.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38323, July 7, 2008]

[[Page 154]]



Sec. 210.26  Other motions.

    Motions pertaining to discovery shall be filed in accordance with 
Sec. 210.15 and the pertinent provisions of subpart E of this part 
(Sec. Sec. 210.27 through 210.34). Motions pertaining to evidentiary 
hearings and prehearing conferences shall be filed in accordance with 
Sec. 210.15 and the pertinent provisions of subpart F of this part 
(Sec. Sec. 210.35 through 210.40). Motions for temporary relief shall 
be filed as provided in subpart H of this part (see Sec. Sec. 210.52 
through 210.57).



               Subpart E_Discovery and Compulsory Process



Sec. 210.27  General provisions governing discovery.

    (a) Discovery methods. The parties to an investigation may obtain 
discovery by one or more of the following methods: depositions upon oral 
examination or written questions; written interrogatories; production of 
documents or things or permission to enter upon land or other property 
for inspection or other purposes; and requests for admissions.
    (b) Scope of discovery. Regarding the scope of discovery for the 
temporary relief phase of an investigation, see Sec. 210.61. For the 
permanent relief phase of an investigation, unless otherwise ordered by 
the administrative law judge, a party may obtain discovery regarding any 
matter, not privileged, that is relevant to the following:
    (1) The claim or defense of the party seeking discovery or to the 
claim or defense of any other party, including the existence, 
description, nature, custody, condition, and location of any books, 
documents, or other tangible things;
    (2) The identity and location of persons having knowledge of any 
discoverable matter;
    (3) The appropriate remedy for a violation of section 337 of the 
Tariff Act of 1930 (see Sec. 210.42(a)(1)(ii)(A)); or
    (4) The appropriate bond for the respondents, under section 
337(j)(3) of the Tariff Act of 1930, during Presidential review of the 
remedial order (if any) issued by the Commission (see Sec. 
210.42(a)(1)(ii)(B)).

It is not grounds for objection that the information sought will be 
inadmissible at the hearing if the information sought appears reasonably 
calculated to lead to the discovery of admissible evidence.
    (c) Supplementation of Responses. (1) A party who has responded to a 
request for discovery with a response is under a duty to supplement or 
correct the response to include information thereafter acquired if 
ordered by the administrative law judge or the Commission or in the 
following circumstances: A party is under a duty seasonably to amend a 
prior response to an interrogatory, request for production, or request 
for admission if the party learns that the response is in some material 
respect incomplete or incorrect and if the additional or corrective 
information has not otherwise been made known to the other parties 
during the discovery process or in writing.
    (2) A duty to supplement responses also may be imposed by agreement 
of the parties, or at any time prior to a hearing through new requests 
for supplementation of prior responses.
    (d) Signing of Discovery Requests, Responses, and Objections. (1) 
The front page of every request for discovery or response or objection 
thereto shall contain a caption setting forth the name of the 
Commission, the title of the investigation or related proceeding, and 
the docket number or investigation number, if any, assigned to the 
investigation or related proceeding.
    (2) Every request for discovery or response or objection thereto 
made by a party represented by an attorney shall be signed by at least 
one attorney of record in the attorney's individual name, whose address 
shall be stated. A party who is not represented by an attorney shall 
sign the request, response, or objection and shall state the party's 
address. The signature of the attorney or party constitutes a 
certification that to the best of the signer's knowledge, information, 
and belief formed after a reasonable inquiry, the request, objection, or 
response is:
    (i) Consistent with Sec. 210.5(a) (if applicable) and other 
relevant provisions of this chapter, and warranted by existing law or a 
good faith argument for the

[[Page 155]]

extension, modification, or reversal of existing law;
    (ii) Not interposed for any improper purpose, such as to harass or 
to cause unnecessary delay or needless increase in the cost of 
litigation; and
    (iii) Not unreasonable or unduly burdensome or expensive, given the 
needs of the case, the discovery already had in the case, and the 
importance of the issues at stake in the litigation.


If a request, response, or objection is not signed, it shall be stricken 
unless it is signed promptly after the omission is called to the 
attention of the party making the request, response, or objection, and a 
party shall not be obligated to take any action with respect to it until 
it is signed.
    (3) If without substantial justification a request, response, or 
objection is certified in violation of paragraph (d)(2) of this section, 
the administrative law judge or the Commission, upon motion or sua 
sponte under Sec. 210.25 of this part, may impose an appropriate 
sanction upon the person who made the certification, the party on whose 
behalf the request, response, or objection was made, or both.
    (4) An appropriate sanction may include an order to pay to the other 
parties the amount of reasonable expenses incurred because of the 
violation, including a reasonable attorney's fee, to the extent 
authorized by Rule 26(g) of the Federal Rules of Civil Procedure. 
Monetary sanctions shall not be imposed under this section against the 
United States, the Commission, or a Commission investigative attorney.
    (5) Monetary sanctions may be imposed under this section to 
reimburse the Commission for expenses incurred by a Commission 
investigative attorney or the Commission's Office of Unfair Import 
Investigations. Monetary sanctions will not be imposed under this 
section to reimburse the Commission for attorney's fees.



Sec. 210.28  Depositions.

    (a) When depositions may be taken. Following publication in the 
Federal Register of a Commission notice instituting the investigation, 
any party may take the testimony of any person, including a party, by 
deposition upon oral examination or written questions. The presiding 
administrative law judge will determine the permissible dates or 
deadlines for taking such depositions.
    (b) Persons before whom depositions may be taken. Depositions may be 
taken before a person having power to administer oaths by the laws of 
the United States or of the place where the examination is held.
    (c) Notice of examination. A party desiring to take the deposition 
of a person shall give notice in writing to every other party to the 
investigation. The administrative law judge shall determine the 
appropriate period for providing such notice. The notice shall state the 
time and place for taking the deposition and the name and address of 
each person to be examined, if known, and, if the name is not known, a 
general description sufficient to identify him or the particular class 
or group to which he belongs. A notice may provide for the taking of 
testimony by telephone, but the administrative law judge may, on motion 
of any party, require that the deposition be taken in the presence of 
the deponent. The parties may stipulate in writing, or the 
administrative law judge may upon motion order, that the testimony at a 
deposition be recorded by other than stenographic means. If a subpoena 
duces tecum is to be served on the person to be examined, the 
designation of the materials to be produced as set forth in the subpoena 
shall be attached to or included in the notice.
    (d) Taking of deposition. Each deponent shall be duly sworn, and any 
adverse party shall have the right to cross-examine. Objections to 
questions or documents shall be in short form, stating the grounds of 
objections relied upon. Evidence objected to shall be taken subject to 
the objections, except that privileged communications and subject matter 
need not be disclosed. The questions propounded and the answers thereto, 
together with all objections made, shall be reduced to writing, after 
which the deposition shall be subscribed by the deponent (unless the 
parties by stipulation waive signing or the deponent is ill or cannot be 
found or refuses to sign) and certified by the person before whom the 
deposition was

[[Page 156]]

taken. If the deposition is not subscribed by the deponent, the person 
administering the oath shall state on the record such fact and the 
reason therefor. When a deposition is recorded by stenographic means, 
the stenographer shall certify on the transcript that the witness was 
sworn in the stenographer's presence and that the transcript is a true 
record of the testimony of the witness. When a deposition is recorded by 
other than stenographic means and is thereafter transcribed, the person 
transcribing it shall certify that the person heard the witness sworn on 
the recording and that the transcript is a correct writing of the 
recording. Thereafter, upon payment of reasonable charges therefor, that 
person shall furnish a copy of the transcript or other recording of the 
deposition to any party or to the deponent. See paragraph (i) of this 
section concerning the effect of errors and irregularities in 
depositions.
    (e) Depositions of nonparty officers or employees of the Commission 
or of other Government agencies. A party desiring to take the deposition 
of an officer or employee of the Commission other than the Commission 
investigative attorney, or of an officer or employee of another 
Government agency, or to obtain documents or other physical exhibits in 
the custody, control, and possession of such officer or employee, shall 
proceed by written motion to the administrative law judge for leave to 
apply for a subpoena under Sec. 210.32(c). Such a motion shall be 
granted only upon a showing that the information expected to be obtained 
thereby is within the scope of discovery permitted by Sec. 210.27(b) or 
Sec. 210.61 and cannot be obtained without undue hardship by 
alternative means.
    (f) Service of deposition transcripts on the Commission staff. The 
party taking the deposition shall promptly serve one copy of the 
deposition transcript on the Commission investigative attorney.
    (g) Admissibility of depositions. The fact that a deposition is 
taken and served upon the Commission investigative attorney as provided 
in this section does not constitute a determination that it is 
admissible in evidence or that it may be used in the investigation. Only 
such part of a deposition as is received in evidence at a hearing shall 
constitute a part of the record in such investigation upon which a 
determination may be based. Objections may be made at the hearing to 
receiving in evidence any deposition or part thereof for any reason that 
would require exclusion of the evidence if the witness were then present 
and testifying.
    (h) Use of depositions. A deposition may be used as evidence against 
any party who was present or represented at the taking of the deposition 
or who had reasonable notice thereof, in accordance with any of the 
following provisions:
    (1) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of a deponent as a witness;
    (2) The deposition of a party may be used by an adverse party for 
any purpose;
    (3) The deposition of a witness, whether or not a party, may be used 
by any party for any purposes if the administrative law judge finds--
    (i) That the witness is dead; or
    (ii) That the witness is out of the United States, unless it appears 
that the absence of the witness was procured by the party offering the 
deposition; or
    (iii) That the witness is unable to attend or testify because of 
age, illness, infirmity, or imprisonment; or
    (iv) That the party offering the deposition has been unable to 
procure the attendance of the witness by subpoena; or
    (v) Upon application and notice, that such exceptional circumstances 
exist as to make it desirable in the interest of justice and with due 
regard to the importance of presenting the oral testimony of witnesses 
at a hearing, to allow the deposition to be used.
    (4) If only part of a deposition is offered in evidence by a party, 
an adverse party may require him to introduce any other part that ought 
in fairness to be considered with the part introduced, and any party may 
introduce any other parts.
    (i) Effect of errors and irregularities in depositions--(1) As to 
notice. All errors

[[Page 157]]

and irregularities in the notice for taking a deposition are waived 
unless written objection is promptly served upon the party giving 
notice.
    (2) As to disqualification of person before whom the deposition is 
to be taken. Objection to taking a deposition because of 
disqualification of the person before whom it is to be taken is waived 
unless made before the taking of the deposition begins or as soon 
thereafter as the disqualification becomes known or could be discovered 
with reasonable diligence.
    (3) As to taking of depositions. (i) Objections to the competency of 
a witness or the competency, relevancy, or materiality of testimony are 
not waived by failure to make them before or during the deposition, 
unless the ground of the objection is one which might have been obviated 
or removed if presented at that time.
    (ii) Errors and irregularities occurring at the oral examination in 
the manner of taking the deposition, in the form of the questions or 
answers, in the oath or affirmation, or in the conduct of parties, and 
errors of any kind which might be obviated, removed, or cured if 
promptly presented, are waived unless seasonable objection thereto is 
made at the taking of the deposition.
    (iii) Objections to the form of written questions submitted under 
this section are waived unless served in writing upon the party 
propounding them. The presiding administrative law judge shall set the 
deadline for service of such objections.
    (4) As to completion and return of deposition. Errors and 
irregularities in the manner in which the testimony is transcribed or 
the deposition is prepared, signed, certified, sealed, indorsed, 
transmitted, served, or otherwise dealt with by the person before whom 
it is taken are waived unless a motion to suppress the deposition or 
some part thereof is made with reasonable promptness after such defect 
is, or with due diligence might have been, ascertained.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38323, July 7, 2008]



Sec. 210.29  Interrogatories.

    (a) Scope; use at hearing. Any party may serve upon any other party 
written interrogatories to be answered by the party served. 
Interrogatories may relate to any matters that can be inquired into 
under Sec. 210.27(b) or Sec. 210.61, and the answers may be used to 
the extent permitted by the rules of evidence.
    (b) Procedure. (1) Interrogatories may be served upon any party 
after the date of publication in the Federal Register of the notice of 
investigation.
    (2) Parties answering interrogatories shall repeat the 
interrogatories being answered immediately preceding the answers. Each 
interrogatory shall be answered separately and fully in writing under 
oath, unless it is objected to, in which event the reasons for objection 
shall be stated in lieu of an answer. The answers are to be signed by 
the person making them, and the objections are to be signed by the 
attorney making them. The party upon whom the interrogatories have been 
served shall serve a copy of the answers and objections, if any, within 
ten days of service of the interrogatories or within the time specified 
by the administrative law judge. The party submitting the 
interrogatories may move for an order under Sec. 210.33(a) with respect 
to any objection to or other failure to answer an interrogatory.
    (3) An interrogatory otherwise proper is not necessarily 
objectionable merely because an answer to the interrogatory involves an 
opinion or contention that relates to fact or the application of law to 
fact, but the administrative law judge may order that such an 
interrogatory need not be answered until after designated discovery has 
been completed or until a prehearing conference or a later time.
    (c) Option to produce records. When the answer to an interrogatory 
may be derived or ascertained from the records of the party upon whom 
the interrogatory has been served or from an examination, audit, or 
inspection of such records, or from a compilation, abstract, or summary 
based thereon, and the burden of deriving or ascertaining the answer is 
substantially the same for the party serving the interrogatory as for 
the party served, it is a sufficient answer to such interrogatory to 
specify the records from which the answer may be derived or ascertained 
and

[[Page 158]]

to afford to the party serving the interrogatory reasonable opportunity 
to examine, audit, or inspect such records and to make copies, 
compilations, abstracts, or summaries. The specifications provided shall 
include sufficient detail to permit the interrogating party to locate 
and to identify, as readily as can the party served, the documents from 
which the answer may be ascertained.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38323, July 7, 2008]



Sec. 210.30  Requests for production of documents and things and entry upon 

land.

    (a) Scope. Any party may serve on any other party a request:
    (1) To produce and permit the party making the request, or someone 
acting on his behalf, to inspect and copy any designated documents 
(including writings, drawings, graphs, charts, photographs, and other 
data compilations from which information can be obtained), or to inspect 
and copy, test, or sample any tangible things that are in the 
possession, custody, or control of the party upon whom the request is 
served; or
    (2) To permit entry upon designated land or other property in the 
possession or control of the party upon whom the request is served for 
the purpose of inspecting and measuring, surveying, photographing, 
testing, or sampling the property or any designated object or operation 
thereon, within the scope of Sec. 210.27(b).
    (b) Procedure. (1) The request may be served upon any party after 
the date of publication in the Federal Register of the notice of 
investigation. The request shall set forth the items to be inspected, 
either by individual item or by category, and describe each item and 
category with reasonable particularity. The request shall specify a 
reasonable time, place, and manner of making the inspection and 
performing the related acts.
    (2) The party upon whom the request is served shall serve a written 
response within 10 days or the time specified by the administrative law 
judge. The response shall state, with respect to each item or category, 
that inspection and related activities will be permitted as requested, 
unless the request is objected to, in which event the reasons for 
objection shall be stated. If objection is made to part of any item or 
category, the part shall be specified. The party submitting the request 
may move for an order under Sec. 210.33(a) with respect to any 
objection to or other failure to respond to the request or any part 
thereof, or any failure to permit inspection as requested. A party who 
produces documents for inspection shall produce them as they are kept in 
the usual course of business or shall organize and label them to 
correspond to the categories in the request.
    (c) Persons not parties. This section does not preclude issuance of 
an order against a person not a party to permit entry upon land.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38323, July 7, 2008]



Sec. 210.31  Requests for admission.

    (a) Form, content, and service of request for admission. Any party 
may serve on any other party a written request for admission of the 
truth of any matters relevant to the investigation and set forth in the 
request that relate to statements or opinions of fact or of the 
application of law to fact, including the genuineness of any documents 
described in the request. Copies of documents shall be served with the 
request unless they have been otherwise furnished or are known to be, 
and in the request are stated as being, in the possession of the other 
party. Each matter as to which an admission is requested shall be 
separately set forth. The request may be served upon a party whose 
complaint is the basis for the investigation after the date of 
publication in the Federal Register of the notice of investigation. The 
administrative law judge will determine the period within which a party 
may serve a request upon other parties.
    (b) Answers and objections to requests for admissions. A party 
answering a request for admission shall repeat the request for admission 
immediately preceding his answer. The matter may be deemed admitted 
unless, within 10 days or the period specified by the administrative law 
judge, the party to whom the request is directed serves upon the party 
requesting the admission a sworn

[[Page 159]]

written answer or objection addressed to the matter. If objection is 
made, the reason therefor shall be stated. The answer shall specifically 
deny the matter or set forth in detail the reasons why the answering 
party cannot truthfully admit or deny the matter. A denial shall fairly 
meet the substance of the requested admission, and when good faith 
requires that a party qualify his answer or deny only a part of the 
matter as to which an admission is requested, he shall specify so much 
of it as is true and qualify or deny the remainder. An answering party 
may not give lack of information or knowledge as a reason for failure to 
admit or deny unless he states that he has made reasonable inquiry and 
that the information known to or readily obtainable by him is 
insufficient to enable him to admit or deny. A party who considers that 
a matter as to which an admission has been requested presents a genuine 
issue for a hearing may not object to the request on that ground alone; 
he may deny the matter or set forth reasons why he cannot admit or deny 
it.
    (c) Sufficiency of answers. The party who has requested the 
admissions may move to determine the sufficiency of the answers or 
objections. Unless the objecting party sustains his burden of showing 
that the objection is justified, the administrative law judge shall 
order that an answer be served. If the administrative law judge 
determines that an answer does not comply with the requirements of this 
section, he may order either that the matter is admitted or that an 
amended answer be served. The administrative law judge may, in lieu of 
these orders, determine that final disposition of the request be made at 
a prehearing conference or at a designated time prior to a hearing under 
this part.
    (d) Effect of admissions; withdrawal or amendment of admission. Any 
matter admitted under this section may be conclusively established 
unless the administrative law judge on motion permits withdrawal or 
amendment of the admission. The administrative law judge may permit 
withdrawal or amendment when the presentation of the issues of the 
investigation will be subserved thereby and the party who obtained the 
admission fails to satisfy the administrative law judge that withdrawal 
or amendment will prejudice him in maintaining his position on the issue 
of the investigation. Any admission made by a party under this section 
is for the purpose of the pending investigation and any related 
proceeding as defined in Sec. 210.3 of this chapter.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38323, July 7, 2008]



Sec. 210.32  Subpoenas.

    (a) Application for issuance of a subpoena--(1) Subpoena ad 
testificandum. An application for issuance of a subpoena requiring a 
person to appear and depose or testify at the taking of a deposition or 
at a hearing shall be made to the administrative law judge.
    (2) Subpoena duces tecum. An application for issuance of a subpoena 
requiring a person to appear and depose or testify and to produce 
specified documents, papers, books, or other physical exhibits at the 
taking of a deposition, at a prehearing conference, at a hearing, or 
under any other circumstances, shall be made in writing to the 
administrative law judge and shall specify the material to be produced 
as precisely as possible, showing the general relevancy of the material 
and the reasonableness of the scope of the subpoena.
    (3) The administrative law judge shall rule on all applications 
filed under paragraph (a)(1) or (a)(2) of this section and may issue 
subpoenas when warranted.
    (b) Use of subpoena for discovery. Subpoenas may be used by any 
party for purposes of discovery or for obtaining documents, papers, 
books or other physical exhibits for use in evidence, or for both 
purposes. When used for discovery purposes, a subpoena may require a 
person to produce and permit the inspection and copying of nonprivileged 
documents, papers, books, or other physical exhibits that constitute or 
contain evidence relevant to the subject matter involved and that are in 
the possession, custody, or control of such person.
    (c) Application for subpoenas for nonparty Commission records or 
personnel

[[Page 160]]

or for records and personnel of other Government agencies--(1) 
Procedure. An application for issuance of a subpoena requiring the 
production of nonparty documents, papers, books, physical exhibits, or 
other material in the records of the Commission, or requiring the 
production of records or personnel of other Government agencies shall 
specify as precisely as possible the material to be produced, the nature 
of the information to be disclosed, or the expected testimony of the 
official or employee, and shall contain a statement showing the general 
relevancy of the material, information, or testimony and the 
reasonableness of the scope of the application, together with a showing 
that such material, information, or testimony or their substantial 
equivalent could not be obtained without undue hardship or by 
alternative means.
    (2) Ruling. Such applications shall be ruled upon by the 
administrative law judge, and he may issue such subpoenas when 
warranted. To the extent that the motion is granted, the administrative 
law judge shall provide such terms and conditions for the production of 
the material, the disclosure of the information, or the appearance of 
the official or employee as may appear necessary and appropriate for the 
protection of the public interest.
    (3) Application for subpoena grounded upon the Freedom of 
Information Act. No application for a subpoena for production of 
documents grounded upon the Freedom of Information Act (5 U.S.C. Sec. 
552) shall be entertained by the administrative law judge.
    (d) Motion to limit or quash. Any motion to limit or quash a 
subpoena shall be filed within such time as the administrative law judge 
may allow.
    (e) Ex parte rulings on applications for subpoenas. Applications for 
the issuance of the subpoenas pursuant to the provisions of this section 
may be made ex parte, and, if so made, such applications and rulings 
thereon shall remain ex parte unless otherwise ordered by the 
administrative law judge.
    (f) Witness Fees--(1) Deponents and witnesses. Any person compelled 
to appear in person to depose or testify in response to a subpoena shall 
be paid the same mileage as are paid witnesses with respect to 
proceedings in the courts of the United States; provided, that salaried 
employees of the United States summoned to depose or testify as to 
matters related to their public employment, irrespective of the party at 
whose instance they are summoned, shall be paid in accordance with the 
applicable Federal regulations.
    (2) Responsibility. The fees and mileage referred to in paragraph 
(f)(1) of this section shall be paid by the party at whose instance 
deponents or witnesses appear. Fees due under this paragraph shall be 
tendered no later than the date for compliance with the subpoena issued 
under this section. Failure to timely tender fees under this paragraph 
shall not invalidate any subpoena issued under this section.
    (g) Obtaining judicial enforcement. In order to obtain judicial 
enforcement of a subpoena issued under paragraphs (a)(3) or (c)(2) of 
this section, the administrative law judge shall certify to the 
Commission, on motion or sua sponte, a request for such enforcement. The 
request shall be accompanied by copies of relevant papers and a written 
report from the administrative law judge concerning the purpose, 
relevance, and reasonableness of the subpoena. If the request, relevant 
papers, or written report contain confidential business information, the 
administrative law judge shall certify nonconfidential copies along with 
the confidential versions. The Commission will subsequently issue a 
notice stating whether it has granted the request and authorized its 
Office of the General Counsel to seek such enforcement.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38233, July 7, 2008]



Sec. 210.33  Failure to make or cooperate in discovery; sanctions.

    (a) Motion for order compelling discovery. A party may apply to the 
administrative law judge for an order compelling discovery upon 
reasonable notice to other parties and all persons affected thereby.
    (b) Non-monetary sanctions for failure to comply with an order 
compelling discovery. If a party or an officer or agent of a party fails 
to comply with an order including, but not limited to, an order for the 
taking of a deposition or the production of documents, an order to

[[Page 161]]

answer interrogatories, an order issued pursuant to a request for 
admissions, or an order to comply with a subpoena, the administrative 
law judge, for the purpose of permitting resolution of relevant issues 
and disposition of the investigation without unnecessary delay despite 
the failure to comply, may take such action in regard thereto as is 
just, including, but not limited to the following:
    (1) Infer that the admission, testimony, documents, or other 
evidence would have been adverse to the party;
    (2) Rule that for the purposes of the investigation the matter or 
matters concerning the order or subpoena issued be taken as established 
adversely to the party;
    (3) Rule that the party may not introduce into evidence or otherwise 
rely upon testimony by the party, officer, or agent, or documents, or 
other material in support of his position in the investigation;
    (4) Rule that the party may not be heard to object to introduction 
and use of secondary evidence to show what the withheld admission, 
testimony, documents, or other evidence would have shown;
    (5) Rule that a motion or other submission by the party concerning 
the order or subpoena issued be stricken or rule by initial 
determination that a determination in the investigation be rendered 
against the party, or both; or
    (6) Order any other non-monetary sanction available under Rule 37(b) 
of the Federal Rules of Civil Procedure. Any such action may be taken by 
written or oral order issued in the course of the investigation or by 
inclusion in the initial determination of the administrative law judge. 
It shall be the duty of the parties to seek, and that of the 
administrative law judge to grant, such of the foregoing means of relief 
or other appropriate relief as may be sufficient to compensate for the 
lack of withheld testimony, documents, or other evidence. If, in the 
administrative law judge's opinion such relief would not be sufficient, 
the administrative law judge shall certify to the Commission a request 
that court enforcement of the subpoena or other discovery order be 
sought.
    (c) Monetary sanctions for failure to make or cooperate in 
discovery. (1) If a party or an officer, director, or managing agent of 
the party or person designated to testify on behalf of a party fails to 
obey an order to provide or permit discovery, the administrative law 
judge or the Commission may make such orders in regard to the failure as 
are just. In lieu of or in addition to taking action listed in paragraph 
(b) of this section and to the extent provided in Rule 37(b)(2) of the 
Federal Rules of Civil Procedure, the administrative law judge or the 
Commission, upon motion or sua sponte under Sec. 210.25, may require 
the party failing to obey the order or the attorney advising that party 
or both to pay reasonable expenses, including attorney's fees, caused by 
the failure, unless the administrative law judge or the Commission finds 
that the failure was substantially justified or that other circumstances 
make an award of expenses unjust. Monetary sanctions shall not be 
imposed under this section against the United States, the Commission, or 
a Commission investigative attorney.
    (2) Monetary sanctions may be imposed under this section to 
reimburse the Commission for expenses incurred by a Commission 
investigative attorney or the Commission's Office of Unfair Import 
Investigations. Monetary sanctions will not be imposed under this 
section to reimburse the Commission for attorney's fees.



Sec. 210.34  Protective orders; reporting requirement; sanctions and other 

actions.

    (a) Issuance of protective order. Upon motion by a party or by the 
person from whom discovery is sought or by the administrative law judge 
on his own initiative, and for good cause shown, the administrative law 
judge may make any order that may appear necessary and appropriate for 
the protection of the public interest or that justice requires to 
protect a party or person from annoyance, embarrassment, oppression, or 
undue burden or expense, including one or more of the following:
    (1) That discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions,

[[Page 162]]

including a designation of the time or place;
    (3) That discovery may be had only by a method of discovery other 
than that selected by the party seeking discovery;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the administrative law judge;
    (6) That a deposition, after being sealed, be opened only by order 
of the Commission or the administrative law judge;
    (7) That a trade secret or other confidential research, development, 
or commercial information not be disclosed or be disclosed only in a 
designated way; and
    (8) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
Commission or the administrative law judge. If the motion for a 
protective order is denied, in whole or in part, the Commission or the 
administrative law judge may, on such terms and conditions as are just, 
order that any party or person provide or permit discovery. The 
Commission also may, upon motion or sua sponte, issue protective orders 
or may continue or amend a protective order issued by the administrative 
law judge.
    (b) Unauthorized disclosure of information. If confidential business 
information submitted in accordance with the terms of a protective order 
is disclosed to any person other than in a manner authorized by the 
protective order, the party responsible for the disclosure must 
immediately bring all pertinent facts relating to such disclosure to the 
attention of the submitter of the information and the administrative law 
judge or the Commission, and, without prejudice to other rights and 
remedies of the submitter of the information, make every effort to 
prevent further disclosure of such information by the party or the 
recipient of such information.
    (c) Violation of protective order. Any individual who has agreed to 
be bound by the terms of a protective order issued pursuant to paragraph 
(a) of this section, and who is determined to have violated the terms of 
the protective order, may be subject to one or more of the following:
    (1) An official reprimand by the Commission;
    (2) Disqualification from or limitation of further participation in 
a pending investigation;
    (3) Temporary or permanent disqualification from practicing in any 
capacity before the Commission pursuant to Sec. 201.15(a) of this 
chapter;
    (4) Referral of the facts underlying the violation to the 
appropriate licensing authority in the jurisdiction in which the 
individual is licensed to practice;
    (5) Sanctions of the sort enumerated in Sec. 210.33(b), or such 
other action as may be appropriate.

    Note to paragraph (c): The issue of whether sanctions should be 
imposed may be raised on a motion by a party, the administrative law 
judge's own motion, or the Commission's own initiative in accordance 
with Sec. 210.25(a)(2). Parties, including the party that identifies an 
alleged breach or makes a motion for sanctions, and the Commission shall 
treat the identity of the alleged breacher as confidential business 
information unless the Commission issues a public sanction. The identity 
of the alleged breacher means the name of any individual against whom 
allegations are made. The Commission or administrative law judge shall 
allow the parties to make written submissions and, if warranted, to 
present oral argument bearing on the issues of violation of a protective 
order and sanctions therefor. If before an administrative law judge, any 
determination on sanctions of the type enumerated in paragraphs (c)(1) 
through (4) of this section shall be in the form of a recommended 
determination. When the motion is addressed to the administrative law 
judge, he shall grant or deny a motion for sanctions under paragraph 
(c)(5) of this section by issuing an order.

    (d) Reporting requirement. Each person who is subject to a 
protective order issued pursuant to paragraph (a) of this section shall 
report in writing to the Commission immediately upon learning that 
confidential business information disclosed to him or her pursuant to 
the protective order is the subject of:
    (1) A subpoena;
    (2) A court or an administrative order (other than an order of a 
court reviewing a Commission decision);
    (3) A discovery request;

[[Page 163]]

    (4) An agreement; or
    (5) Any other written request, if the request or order seeks 
disclosure, by him or any other person, of the subject confidential 
business information to a person who is not, or may not be, permitted 
access to that information pursuant to either a Commission protective 
order or Sec. 210.5(b).

    Note to paragraph (d): This reporting requirement applies only to 
requests and orders for disclosure made for use of confidential business 
information in non-Commission proceedings.

    (e) Sanctions and other actions. After providing notice and an 
opportunity to comment, the Commission may impose a sanction upon any 
person who willfully fails to comply with paragraph (d) of this section, 
or it may take other action.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38323, July 7, 2008]



              Subpart F_Prehearing Conferences and Hearings



Sec. 210.35  Prehearing conferences.

    (a) When appropriate. The administrative law judge in any 
investigation may direct counsel or other representatives for all 
parties to meet with him for one or more conferences to consider any or 
all of the following:
    (1) Simplification and clarification of the issues;
    (2) Negotiation, compromise, or settlement of the case, in whole or 
in part;
    (3) Scope of the hearing;
    (4) Necessity or desirability of amendments to pleadings subject, 
however, to the provisions of Sec. 210.14 (b) and (c);
    (5) Stipulations and admissions of either fact or the content and 
authenticity of documents;
    (6) Expedition in the discovery and presentation of evidence 
including, but not limited to, restriction of the number of expert, 
economic, or technical witnesses; and
    (7) Such other matters as may aid in the orderly and expeditious 
disposition of the investigation including disclosure of the names of 
witnesses and the exchange of documents or other physical exhibits that 
will be introduced in evidence in the course of the hearing.
    (b) Subpoenas. Prehearing conferences may be convened for the 
purpose of accepting returns on subpoenas duces tecum issued pursuant to 
Sec. 210.32(a)(3).
    (c) Reporting. In the discretion of the administrative law judge, 
prehearing conferences may or may not be stenographically reported and 
may or may not be public.
    (d) Order. The administrative law judge may enter in the record an 
order that recites the results of the conference. Such order shall 
include the administrative law judge's rulings upon matters considered 
at the conference, together with appropriate direction to the parties. 
The administrative law judge's order shall control the subsequent course 
of the hearing, unless the administrative law judge modifies the order.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38324, July 7, 2008]



Sec. 210.36  General provisions for hearings.

    (a) Purpose of hearings. (1) An opportunity for a hearing shall be 
provided in each investigation under this part, in accordance with the 
Administrative Procedure Act. At the hearing, the presiding 
administrative law judge will take evidence and hear argument for the 
purpose of determining whether there is a violation of section 337 of 
the Tariff Act of 1930, and for the purpose of making findings and 
recommendations, as described in Sec. 210.42(a)(1)(ii), concerning the 
appropriate remedy and the amount of the bond to be posted by 
respondents during Presidential review of the Commission's action, under 
section 337(j) of the Tariff Act.
    (2) An opportunity for a hearing in accordance with the 
Administrative Procedure Act shall also be provided in connection with 
every motion for temporary relief filed under this part.
    (b) Public hearings. All hearings in investigations under this part 
shall be public unless otherwise ordered by the administrative law 
judge.
    (c) Expedition. Hearings shall proceed with all reasonable 
expedition, and, insofar as practicable, shall be held at one place, 
continuing until completed unless otherwise ordered by the 
administrative law judge.

[[Page 164]]

    (d) Rights of the parties. Every hearing under this section shall be 
conducted in accordance with the Administrative Procedure Act (i.e., 5 
U.S.C. Sec. Sec. 554 through 556). Hence, every party shall have the 
right of adequate notice, cross-examination, presentation of evidence, 
objection, motion, argument, and all other rights essential to a fair 
hearing.
    (e) Presiding official. An administrative law judge shall preside 
over each hearing unless the Commission shall otherwise order.



Sec. 210.37  Evidence.

    (a) Burden of proof. The proponent of any factual proposition shall 
be required to sustain the burden of proof with respect thereto.
    (b) Admissibility. Relevant, material, and reliable evidence shall 
be admitted. Irrelevant, immaterial, unreliable, or unduly repetitious 
evidence shall be excluded. Immaterial or irrelevant parts of an 
admissible document shall be segregated and excluded as far as 
practicable.
    (c) Information obtained in investigations. Any documents, papers, 
books, physical exhibits, or other materials or information obtained by 
the Commission under any of its powers may be disclosed by the 
Commission investigative attorney when necessary in connection with 
investigations and may be offered in evidence by the Commission 
investigative attorney.
    (d) Official notice. When any decision of the administrative law 
judge rests, in whole or in part, upon the taking of official notice of 
a material fact not appearing in evidence of record, opportunity to 
disprove such noticed fact shall be granted any party making timely 
motion therefor.
    (e) Objections. Objections to evidence shall be made in timely 
fashion and shall briefly state the grounds relied upon. Rulings on all 
objections shall appear on the record.
    (f) Exceptions. Formal exception to an adverse ruling is not 
required.
    (g) Excluded evidence. When an objection to a question propounded to 
a witness is sustained, the examining party may make a specific offer of 
what he expects to prove by the answer of the witness, or the 
administrative law judge may in his discretion receive and report the 
evidence in full. Rejected exhibits, adequately marked for 
identification, shall be retained with the record so as to be available 
for consideration by any reviewing authority.



Sec. 210.38  Record.

    (a) Definition of the record. The record shall consist of all 
pleadings, the notice of investigation, motions and responses, all 
briefs and written statements, and other documents and things properly 
filed with the Secretary, in addition to all orders, notices, and 
initial determinations of the administrative law judge, orders and 
notices of the Commission, hearing and conference transcripts, evidence 
admitted into the record (including physical exhibits), and any other 
items certified into the record by the administrative law judge or the 
Commission.
    (b) Reporting and transcription. Hearings shall be reported and 
transcribed by the official reporter of the Commission under the 
supervision of the administrative law judge, and the transcript shall be 
a part of the record.
    (c) Corrections. Changes in the official transcript may be made only 
when they involve errors affecting substance. A motion to correct a 
transcript shall be addressed to the administrative law judge, who may 
order that the transcript be changed to reflect such corrections as are 
warranted, after consideration of any objections that may be made. Such 
corrections shall be made by the official reporter by furnishing 
substitute typed pages, under the usual certificate of the reporter, for 
insertion in the transcript. The original uncorrected pages shall be 
retained in the files of the Commission.
    (d) Certification of record. The record, including all physical 
exhibits entered into evidence or such photographic reproductions 
thereof as the administrative law judge approves, shall be certified to 
the Commission by the administrative law judge upon his filing of an 
initial determination or at such earlier time as the Commission may 
order.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38324, July 7, 2008]

[[Page 165]]



Sec. 210.39  In camera treatment of confidential information.

    (a) Definition. Except as hereinafter provided and consistent with 
Sec. Sec. 210.5 and 210.34, confidential documents and testimony made 
subject to protective orders or orders granting in camera treatment are 
not made part of the public record and are kept confidential in an in 
camera record. Only the persons identified in a protective order, 
persons identified in Sec. 210.5(b), and court personnel concerned with 
judicial review shall have access to confidential information in the in 
camera record. The right of the administrative law judge and the 
Commission to disclose confidential data under a protective order 
(pursuant to Sec. 210.34) to the extent necessary for the proper 
disposition of each proceeding is specifically reserved.
    (b) Transmission of certain Commission records to district court. 
(1) In a civil action involving parties that are also parties to a 
proceeding before the Commission under section 337 of the Tariff Act of 
1930, at the request of a party to a civil action that is also a 
respondent in the proceeding before the Commission, the district court 
may stay, until the determination of the Commission becomes final, 
proceedings in the civil action with respect to any claim that involves 
the same issues involved in the proceeding before the Commission under 
certain conditions. If such a stay is ordered by the district court, 
after the determination of the Commission becomes final and the stay is 
dissolved, the Commission shall certify to the district court such 
portions of the record of its proceeding as the district court may 
request. Notwithstanding paragraph (a) of this section, the in camera 
record may be transmitted to a district court and be admissible in a 
civil action, subject to such protective order as the district court 
determines necessary, pursuant to 28 U.S.C. 1659.
    (2) To facilitate timely compliance with any court order requiring 
the Commission to transmit all or part of the record of its section 337 
proceedings to the court, as described in paragraph (b)(1) of this 
section, a party that requests the court to issue an order staying the 
civil action or an order dissolving the stay and directing the 
Commission to transmit all or part of the record to the court must file 
written notice of the issuance or dissolution of a stay with the 
Commission Secretary within 10 days of the issuance or dissolution of a 
stay by the district court.
    (c) In camera treatment of documents and testimony. The 
administrative law judge shall have authority to order documents or oral 
testimony offered in evidence, whether admitted or rejected, to be 
placed in camera.
    (d) Part of confidential record. In camera documents and testimony 
shall constitute a part of the confidential record of the Commission.
    (e) References to in camera information. In submitting proposed 
findings, briefs, or other papers, counsel for all parties shall make an 
attempt in good faith to refrain from disclosing the specific details of 
in camera documents and testimony. This shall not preclude references in 
such proposed findings, briefs, or other papers to such documents or 
testimony including generalized statements based on their contents. To 
the extent that counsel consider it necessary to include specific 
details of in camera data in their presentations, such data shall be 
incorporated in separate proposed findings, briefs, or other papers 
marked ``Business Confidential,'' which shall be placed in camera and 
become a part of the confidential record.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67627, Dec. 30, 1994; 73 
FR 38324, July 7, 2008]



Sec. 210.40  Proposed findings and conclusions and briefs.

    At the time a motion for summary determination under Sec. 210.18(a) 
or a motion for termination under Sec. 210.21(a) is made, or when it is 
found that a party is in default under Sec. 210.16, or at the close of 
the reception of evidence in any hearing held pursuant to this part 
(except as provided in Sec. 210.63), or within a reasonable time 
thereafter fixed by the administrative law judge, any party may file 
proposed findings of fact and conclusions of law, together with reasons 
therefor. When appropriate, briefs in support of the proposed findings 
of fact and conclusions of law may be filed with the administrative law

[[Page 166]]

judge for his consideration. Such proposals and briefs shall be in 
writing, shall be served upon all parties in accordance with Sec. 
210.4(g), and shall contain adequate references to the record and the 
authorities on which the submitter is relying.



               Subpart G_Determinations and Actions Taken



Sec. 210.41  Termination of investigation.

    Except as provided in Sec. 210.21 (b)(2), (c), and (d), an order of 
termination issued by the Commission shall constitute a determination of 
the Commission under Sec. 210.45(c). The Commission shall publish in 
the Federal Register notice of each Commission order that terminates an 
investigation in its entirety.

[60 FR 53120, Oct. 12, 1995]



Sec. 210.42  Initial determinations.

    (a)(1)(i) On issues concerning violation of section 337. Unless 
otherwise ordered by the Commission, the administrative law judge shall 
certify the record to the Commission and shall file an initial 
determination on whether there is a violation of section 337 of the 
Tariff Act of 1930 no later than four (4) months before the target date 
set pursuant to Sec. 210.51(a).
    (ii) Recommended determination on issues concerning permanent relief 
and bonding. Unless the Commission orders otherwise, within 14 days 
after issuance of the initial determination on violation of section 337 
of the Tariff Act of 1930, the administrative law judge shall issue a 
recommended determination containing findings of fact and 
recommendations concerning--
    (A) The appropriate remedy in the event that the Commission finds a 
violation of section 337, and
    (B) The amount of the bond to be posted by the respondents during 
Presidential review of Commission action under section 337(j) of the 
Tariff Act.
    (2) On certain motions to declassify information. The decision of 
the administrative law judge granting a motion to declassify 
information, in whole or in part, shall be in the form of an initial 
determination as provided in Sec. 210.20(b).
    (b) On issues concerning temporary relief or forfeiture of temporary 
relief bonds. Certification of the record and the disposition of an 
initial determination concerning a motion for temporary relief are 
governed by Sec. Sec. 210.65 and 210.66. The disposition of an initial 
determination concerning possible forfeiture or return of a 
complainant's temporary relief bond, in whole or in part, is governed by 
Sec. 210.70.
    (c) On other matters. The administrative law judge shall grant the 
following types of motions by issuing an initial determination or shall 
deny them by issuing an order: a motion to amend the complaint or notice 
of investigation pursuant to Sec. 210.14(b); a motion for a finding of 
default pursuant to Sec. 210.16; a motion for summary determination 
pursuant to Sec. 210.18; a motion for intervention pursuant to Sec. 
210.19; a motion for termination pursuant to Sec. 210.21; a motion to 
suspend an investigation pursuant to Sec. 210.23; a motion for 
forfeiture or return of respondents' bonds pursuant to Sec. 210.50(d); 
a motion to set a target date exceeding 15 months pursuant to Sec. 
210.51(a); or a motion for forfeiture or return of a complainant's 
temporary relief bond pursuant to Sec. 210.70.
    (d) Contents. The initial determination shall include: an opinion 
stating findings (with specific page references to principal supporting 
items of evidence in the record) and conclusions and the reasons or 
bases therefor necessary for the disposition of all material issues of 
fact, law, or discretion presented in the record; and a statement that, 
pursuant to Sec. 210.42(h), the initial determination shall become the 
determination of the Commission unless a party files a petition for 
review of the initial determination pursuant to Sec. 210.43(a) or the 
Commission, pursuant to Sec. 210.44, orders on its own motion a review 
of the initial determination or certain issues therein.
    (e) Notice to and advice from other departments and agencies. Notice 
of each initial determination granting a motion for termination of an 
investigation in whole or part on the basis of a consent order or a 
settlement, licensing, or other agreement pursuant to Sec. 210.21 of 
this part, and notice of such other initial determinations as the

[[Page 167]]

Commission may order, shall be provided to the U.S. Department of Health 
and Human Services, the U.S. Department of Justice, the Federal Trade 
Commission, the U.S. Customs Service, and such other departments and 
agencies as the Commission deems appropriate. The Commission shall 
consider comments, limited to issues raised by the record, the initial 
determination, and the petitions for review, received from such agencies 
when deciding whether to initiate review or the scope of review. The 
Commission shall allow such agencies 10 days after the service of an 
initial determination to submit their comments.
    (f) Initial determination made by the administrative law judge. An 
initial determination under this section shall be made and filed by the 
administrative law judge who presided over the investigation, except 
when that person is unavailable to the Commission and except as provided 
in Sec. 210.20(a).
    (g) Reopening of proceedings by the administrative law judge. At any 
time prior to the filing of the initial determination, the 
administrative law judge may reopen the proceedings for the reception of 
additional evidence.
    (h) Effect. (1) An initial determination filed pursuant to Sec. 
210.42(a)(2) shall become the determination of the Commission 45 days 
after the date of service of the initial determination, unless the 
Commission has ordered review of the initial determination or certain 
issues therein, or by order has changed the effective date of the 
initial determination.
    (2) An initial determination under Sec. 210.42(a)(1)(i) shall 
become the determination of the Commission 60 days after the date of 
service of the initial determination, unless the Commission within 60 
days after the date of such service shall have ordered review of the 
initial determination or certain issues therein or by order has changed 
the effective date of the initial determination. The findings and 
recommendations made by the administrative law judge in the recommended 
determination issued pursuant to Sec. 210.42(a)(1)(ii) will be 
considered by the Commission in reaching determinations on remedy and 
bonding by the respondents pursuant to Sec. 210.50(a).
    (3) An initial determination filed pursuant to Sec. 210.42(c) shall 
become the determination of the Commission 30 days after the date of 
service of the initial determination, except as provided for in 
paragraph (h)(5) and paragraph (h)(6) of this section, Sec. 
210.50(d)(3), and Sec. 210.70(c), unless the Commission, within 30 days 
after the date of such service shall have ordered review of the initial 
determination or certain issues therein or by order has changed the 
effective date of the initial determination.
    (4) The disposition of an initial determination granting or denying 
a motion for temporary relief is governed by Sec. 210.66.
    (5) The disposition of an initial determination concerning possible 
forfeiture of a complainant's temporary relief bond is governed by Sec. 
210.70(c).
    (6) The disposition of an initial determination filed pursuant to 
Sec. 210.42(c) which grants a motion for summary determination that 
would terminate the investigation in its entirety if it were to become 
the Commission's final determination, shall become the final 
determination of the Commission 45 days after the date of service of the 
initial determination, unless the Commission has ordered review of the 
initial determination or certain issues therein, or by order has changed 
the effective date of the initial determination.
    (i) Notice of determination. A notice stating that the Commission's 
decision on whether to review an initial determination will be issued by 
the Secretary and served on the parties. Notice of the Commission's 
decision will be published in the Federal Register if the decision 
results in termination of the investigation in its entirety, if the 
Commission deems publication of the notice to be appropriate under Sec. 
201.10 of subpart B of this part, or if publication of the notice is 
required under Sec. 210.49(b) of this subpart or Sec. 210.66(f) of 
subpart H of this part.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67628, Dec. 30, 1994; 60 
FR 53120, Oct. 12, 1995; 73 FR 38324, July 7, 2008]

[[Page 168]]



Sec. 210.43  Petitions for review of initial determinations on matters other 

than temporary relief.

    (a) Filing of the petition. (1) Except as provided in paragraph 
(a)(2) of this section, any party to an investigation may request 
Commission review of an initial determination issued under Sec. 
210.42(a)(1) or (c), Sec. 210.50(d)(3) or Sec. 210.70(c) by filing a 
petition with the Secretary. A petition for review of an initial 
determination issued under Sec. 210.42(a)(1) must be filed within 12 
days after service of the initial determination. A petition for review 
of an initial determination issued under Sec. 210.42(c) that terminates 
the investigation in its entirety on summary determination must be filed 
within 10 business days after service of the initial determination. 
Petitions for review of all other initial determinations under Sec. 
210.42(c) must be filed within five (5) business days after service of 
the initial determination. A petition for review of an initial 
determination issued under Sec. 210.50(d)(3) or Sec. 210.70(c) must be 
filed within 10 days after service of the initial determination.
    (2) A party may not petition for review of any issue as to which the 
party has been found to be in default. Similarly, a party or proposed 
respondent who did not file a response to the motion addressed in the 
initial determination may be deemed to have consented to the relief 
requested and may not petition for review of the issues raised in the 
motion.
    (b) Content of the petition. (1) A petition for review filed under 
this section shall identify the party seeking review and shall specify 
the issues upon which review of the initial determination is sought, and 
shall, with respect to each such issue, specify one or more of the 
following grounds upon which review is sought:
    (i) That a finding or conclusion of material fact is clearly 
erroneous;
    (ii) That a legal conclusion is erroneous, without governing 
precedent, rule or law, or constitutes an abuse of discretion; or
    (iii) That the determination is one affecting Commission policy.

    Note to paragraph (b)(1): The petition for review must set forth a 
concise statement of the facts material to the consideration of the 
stated issues, and must present a concise argument providing the reasons 
that review by the Commission is necessary or appropriate to resolve an 
important issue of fact, law, or policy. If a petition filed under this 
paragraph exceeds 50 pages in length, it must be accompanied by a 
summary of the petition not to exceed ten pages. Petitions for review 
may not exceed 100 pages in length, exclusive of the summary and any 
exhibits.

    (2) Any issue not raised in a petition for review will be deemed to 
have been abandoned by the petitioning party and may be disregarded by 
the Commission in reviewing the initial determination (unless the 
Commission chooses to review the issue on its own initiative under Sec. 
210.44).
    (3) Any petition designated by the petitioner as a ``contingent'' 
petition for review shall be deemed to be a petition under paragraph 
(a)(1) of this section and shall be processed accordingly. In order to 
preserve an issue for review by the Commission or the U.S. Court of 
Appeals for the Federal Circuit that was decided adversely to a party, 
the issue must be raised in a petition for review, whether or not the 
Commission's determination on the ultimate issue, such as a violation of 
section 337, was decided adversely to the party.
    (4) A party's failure to file a petition for review of an initial 
determination shall constitute abandonment of all issues decided 
adversely to that party in the initial determination.
    (5) Service of petition. All petitions for review of an initial 
determination shall be served on the other parties by messenger, 
overnight delivery, or equivalent means.
    (c) Responses to the petition. Any party may file a response within 
eight (8) days after service of a petition of a final initial 
determination under Sec. 210.42(a)(1), and within five (5) business 
days after service of all other types of petitions, except that a party 
who has been found to be in default may not file a response to any issue 
as to which the party has defaulted. If a response to a petition for 
review filed under this paragraph exceeds 50 pages in length, it must be 
accompanied by a summary of the response not to exceed ten pages. 
Responses to petitions for review may not exceed 100 pages in length, 
exclusive of the summary and any exhibits.

[[Page 169]]

    (d) Grant or denial of review. (1) The Commission shall decide 
whether to grant, in whole or in part, a petition for review of an 
initial determination filed pursuant to Sec. 210.42(a)(1) within 60 
days of the service of the initial determination on the parties, or by 
such other time as the Commission may order. The Commission shall decide 
whether to grant, in whole or in part, a petition for review of an 
initial determination filed pursuant to Sec. 210.42(a)(2) or Sec. 
210.42(c), which grants a motion for summary determination that would 
terminate the investigation in its entirety if it becomes the final 
determination of the Commission, Sec. 210.50(d)(3), or Sec. 210.70(c) 
within 45 days after the service of the initial determination on the 
parties, or by such other time as the Commission may order. The 
Commission shall decide whether to grant, in whole or in part, a 
petition for review of an initial determination filed pursuant to Sec. 
210.42(c), except as noted above, within 30 days after the service of 
the initial determination on the parties, or by such other time as the 
Commission may order.
    (2) The Commission shall decide whether to grant a petition for 
review, based upon the petition and response thereto, without oral 
argument or further written submissions unless the Commission shall 
order otherwise. A petition will be granted and review will be ordered 
if it appears that an error or abuse of the type described in paragraph 
(b)(1) of this section is present or if the petition raises a policy 
matter connected with the initial determination, which the Commission 
thinks it necessary or appropriate to address.
    (3) The Commission shall grant a petition for review and order 
review of an initial determination or certain issues therein when at 
least one of the participating Commissioners votes for ordering review. 
In its notice, the Commission shall establish the scope of the review 
and the issues that will be considered and make provisions for filing of 
briefs and oral argument if deemed appropriate by the Commission. If the 
notice solicits written submissions from interested persons on the 
issues of remedy, the public interest, and bonding in addition to 
announcing the Commission's decision to grant a petition for review of 
the initial determination, the notice shall be served by the Secretary 
on all parties, the U.S. Department of Health and Human Services, the 
U.S. Department of Justice, the Federal Trade Commission, the U.S. 
Customs Service, and such other departments and agencies as the 
Commission deems appropriate.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67628, Dec. 30, 1994; 60 
FR 53120, Oct. 12, 1995; 73 FR 38325, July 7, 2008]



Sec. 210.44  Commission review on its own motion of initial determinations on 

matters other than temporary relief.

    Within the time provided in Sec. 210.43(d)(1), the Commission on 
its own initiative may order review of an initial determination, or 
certain issues in the initial determination, when at least one of the 
participating Commissioners votes for ordering review. A self-initiated 
Commission review of an initial determination will be ordered if it 
appears that an error or abuse of the kind described in Sec. 
210.43(b)(1) is present or the initial determination raises a policy 
matter which the Commission thinks is necessary or appropriate to 
address.



Sec. 210.45  Review of initial determinations on matters other than temporary 

relief.

    (a) Briefs and oral argument. In the event the Commission orders 
review of an initial determination pertaining to issues other than 
temporary relief, the parties may be requested to file briefs on the 
issues under review at a time and of a size and nature specified in the 
notice of review. The parties, within the time provided for filing the 
review briefs, may submit a written request for a hearing to present 
oral argument before the Commission, which the Commission in its 
discretion may grant or deny. The Commission shall grant the request 
when at least one of the participating Commissioners votes in favor of 
granting the request.
    (b) Scope of review. Only the issues set forth in the notice of 
review, and all subsidiary issues therein, will be considered by the 
Commission.

[[Page 170]]

    (c) Determination on review. On review, the Commission may affirm, 
reverse, modify, set aside or remand for further proceedings, in whole 
or in part, the initial determination of the administrative law judge. 
In addition, the Commission may take no position on specific issues or 
portions of the initial determination of the administrative law judge. 
The Commission also may make any findings or conclusions that in its 
judgment are proper based on the record in the proceeding. If the 
Commission's determination on review terminates the investigation in its 
entirety, a notice will be published in the Federal Register.

[59 FR 39039, Aug. 1, 1994, as amended at 60 FR 53120, Oct. 12, 1995; 73 
FR 38235, July 7, 2008]



Sec. 210.46  Petitions for and sua sponte review of initial determinations on 

violation of section 337 or temporary relief.

    (a) Violation of section 337. An initial determination issued under 
Sec. 210.42(a)(1)(i) on whether respondents have violated section 337 
of the Tariff Act of 1930 will be processed as provided in Sec. 
210.42(e), (h)(2), and (i) and Sec. Sec. 210.43 through 210.45. The 
Commission will issue a notice setting deadlines for written submissions 
from the parties, other Federal agencies, and interested members of the 
public on the issues of remedy, the public interest, and bonding by the 
respondents. In those submissions, the parties may assert their 
arguments concerning the recommended determination issued by the 
administrative law judge pursuant to Sec. 210.42(a)(ii) on the issues 
of remedy and bonding by respondents.
    (b) Temporary relief. Commission action on an initial determination 
concerning temporary relief is governed by Sec. 210.66.



Sec. 210.47  Petitions for reconsideration.

    Within 14 days after service of a Commission determination, any 
party may file with the Commission a petition for reconsideration of 
such determination or any action ordered to be taken thereunder, setting 
forth the relief desired and the grounds in support thereof. Any 
petition filed under this section must be confined to new questions 
raised by the determination or action ordered to be taken thereunder and 
upon which the petitioner had no opportunity to submit arguments. Any 
party desiring to oppose such a petition shall file an answer thereto 
within five days after service of the petition upon such party. The 
filing of a petition for reconsideration shall not stay the effective 
date of the determination or action ordered to be taken thereunder or 
toll the running of any statutory time period affecting such 
determination or action ordered to be taken thereunder unless 
specifically so ordered by the Commission.



Sec. 210.48  Disposition of petitions for reconsideration.

    The Commission may affirm, set aside, or modify its determination, 
including any action ordered by it to be taken thereunder. When 
appropriate, the Commission may order the administrative law judge to 
take additional evidence.



Sec. 210.49  Implementation of Commission action.

    (a) Service of Commission determination upon the parties. A 
Commission determination pursuant to Sec. 210.45(c) or a termination on 
the basis of a licensing or other agreement, a consent order or an 
arbitration agreement pursuant to Sec. 210.21(b), (c) or (d), 
respectively, shall be served upon each party to the investigation.
    (b) Publication and transmittal to the President. A Commission 
determination that there is a violation of section 337 of the Tariff Act 
of 1930 or that there is reason to believe that there is a violation, 
together with the action taken relative to such determination under 
Sec. 210.50(a) or Sec. 210.50(d) of this part, or the modification or 
rescission in whole or in part of an action taken under Sec. 210.50(a), 
shall promptly be published in the Federal Register. It shall also be 
promptly transmitted to the President or an officer assigned the 
functions of the President under 19 U.S.C. 1337(j)(1)(B), 1337(j)(2), 
and 1337(j)(4), together with the record upon which the determination 
and the action are based.

[[Page 171]]

    (c) Enforceability of Commission action. Unless otherwise specified, 
any Commission action other than an exclusion order or an order 
directing seizure and forfeiture of articles imported in violation of an 
outstanding exclusion order shall be enforceable upon receipt by the 
affected party of notice of such action. Exclusion orders and seizure 
and forfeiture orders shall be enforceable upon receipt of notice 
thereof by the Secretary of the Treasury.
    (d) Finality of affirmative Commission action. If the President does 
not disapprove the Commission's action within a 60-day period beginning 
the day after a copy of the Commission's action is delivered to the 
President, or if the President notifies the Commission before the close 
of the 60-day period that he approves the Commission's action, such 
action shall become final the day after the close of the 60-day period 
or the day the President notifies the Commission of his approval, as the 
case may be.
    (e) Duration. Final Commission action shall remain in effect as 
provided in subpart I of this part.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67628, Dec. 30, 1994; 73 
FR 38325, July 7, 2008]



Sec. 210.50  Commission action, the public interest, and bonding by 

respondents.

    (a) During the course of each investigation under this part, the 
Commission shall--
    (1) Consider what action (general or limited exclusion of articles 
from entry or a cease and desist order, or exclusion of articles from 
entry under bond or a temporary cease and desist order), if any, it 
should take, and, when appropriate, take such action;
    (2) Consult with and seek advice and information from the U.S. 
Department of Health and Human Services, the U.S. Department of Justice, 
the Federal Trade Commission, the U.S. Customs Service, and such other 
departments and agencies as it considers appropriate, concerning the 
subject matter of the complaint and the effect its actions (general or 
limited exclusion of articles from entry or a cease and desist order, or 
exclusion of articles from entry under bond or a temporary cease and 
desist order) under section 337 of the Tariff Act of 1930 shall have 
upon the public health and welfare, competitive conditions in the U.S. 
economy, the production of like or directly competitive articles in the 
United States, and U.S. consumers;
    (3) Determine the amount of the bond to be posted by a respondent 
pursuant to section 337(j)(3) of the Tariff Act of 1930 following the 
issuance of temporary or permanent relief under section 337(d), (e), 
(f), or (g) of the Tariff Act of 1930, taking into account the 
requirement of section 337(e) and (j)(3) that the amount of the bond be 
sufficient to protect the complainant from any injury.
    (4) Receive submissions from the parties, interested persons, and 
other Government agencies and departments with respect to the subject 
matter of paragraphs (a)(1), (a)(2), and (a)(3), of this section.

When the matter under consideration pursuant to paragraph (a)(1) of this 
section is whether to grant some form of permanent relief, the 
submissions described in paragraph (a)(4) of this section shall be filed 
by the deadlines specified in the Commission notice issued pursuant to 
Sec. 210.46(a). When the matter under consideration is whether to grant 
some form of temporary relief, such submissions shall be filed by the 
deadlines specified in Sec. 210.67(b), unless the Commission orders 
otherwise. Any submission from a party shall be served upon the other 
parties in accordance with Sec. 210.4(g). The parties' submissions, as 
well as any filed by interested persons or other agencies shall be 
available for public inspection in the Office of the Secretary. The 
Commission will consider motions for oral argument or, when necessary, a 
hearing with respect to the subject matter of this section, except that 
no hearing or oral argument will be permitted in connection with a 
motion for temporary relief.
    (b)(1) With respect to an administrative law judge's ability to take 
evidence or other information and to hear arguments from the parties and 
other

[[Page 172]]

interested persons on the issues of appropriate Commission action, the 
public interest, and bonding by the respondents for purposes of an 
initial determination on temporary relief, see Sec. Sec. 210.61, 
210.62, and 210.66(a). For purposes of the recommended determination 
required by Sec. 210.42(a)(1)(ii), an administrative law judge shall 
take evidence or other information and hear arguments from the parties 
and other interested persons on the issues of appropriate Commission 
action and bonding by the respondents. Unless the Commission orders 
otherwise, and except as provided in paragraph (b)(2) of this section, 
an administrative law judge shall not address the issue of the public 
interest for purposes of an initial determination on violation of 
section 337 of the Tariff Act under Sec. 210.42(a)(1)(i).
    (2) Regarding terminations by settlement agreement, consent order, 
or arbitration agreement under Sec. 210.21 (b), (c) or (d), the parties 
may file statements regarding the impact of the proposed termination on 
the public interest, and the administrative law judge may hear argument, 
although no discovery may be compelled with respect to issues relating 
solely to the public interest. Thereafter, the administrative law judge 
shall consider and make appropriate findings in the initial 
determination regarding the effect of the proposed settlement on the 
public health and welfare, competitive conditions in the U.S. economy, 
the production of like or directly competitive articles in the United 
States, and U.S. consumers.
    (c) No general exclusion from entry of articles shall be ordered 
under paragraph (a)(1) of this section unless the Commission determines 
that--
    (1) Such exclusion is necessary to prevent circumvention of an 
exclusion order limited to products of named persons; or
    (2) There is a pattern of violation of section 337 of the Tariff Act 
of 1930 and it is difficult to identify the source of infringing 
products.
    (d) Forfeiture or return of respondents' bonds. (1)(i) If one or 
more respondents posts a bond pursuant to 19 U.S.C. 1337(e)(1) or 
1337(j)(3), proceedings to determine whether a respondent's bond should 
be forfeited to a complainant in whole or part may be initiated upon the 
filing of a motion, addressed to the administrative law judge who last 
presided over the investigation, by a complainant within 90 days after 
the expiration of the period of Presidential review under 19 U.S.C. 
1337(j). If that administrative law judge is no longer employed by the 
Commission, the motion shall be addressed to the Commission.
    (ii) A respondent may file a motion addressed to the administrative 
law judge who last presided over the investigation for the return of its 
bond within 90 days after the expiration of the Presidential review 
period under 19 U.S.C. 1337(j). If that administrative law judge is no 
longer employed by the Commission, the motion shall be addressed to the 
Commission.
    (2) Any nonmoving party may file a response to a motion filed under 
paragraph (d)(1) of this section within 15 days after filing of the 
motion, unless otherwise ordered by the administrative law judge.
    (3) A motion for forfeiture or return of a respondent's bond in 
whole or part will be adjudicated by the administrative law judge in an 
initial determination with a 45-day effective date, which shall be 
subject to review under the provisions of Sec. Sec. 210.42 through 
210.45. In determining whether to grant the motion, the administrative 
law judge and the Commission will be guided by practice under Rule 65 of 
the Federal Rules of Civil Procedure (taking into account that the roles 
of the parties are reversed in this instance).
    (4) If the Commission determines that a respondent's bond should be 
forfeited to a complainant, and if the bond is being held by the 
Secretary of the Treasury, the Commission Secretary shall promptly 
notify the Secretary of the Treasury of the Commission's determination.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67628, Dec. 30, 1994; 73 
FR 38326, July 7, 2008]



Sec. 210.51  Period for concluding investigation.

    (a) Permanent relief. Within 45 days after institution of the 
investigation, the administrative law judge shall issue an order setting 
a target date for

[[Page 173]]

completion of the investigation. If the target date does not exceed 16 
months from the date of institution of the investigation, the order of 
the administrative law judge shall be final and not subject to 
interlocutory review. If the target date exceeds 16 months, the order of 
the administrative law judge shall constitute an initial determination. 
After the target date has been set, it can be modified by the 
administrative law judge for good cause shown before the investigation 
is certified to the Commission or by the Commission after the 
investigation is certified to the Commission. Any extension of the 
target date beyond 16 months, before the investigation is certified to 
the Commission, shall be by initial determination.
    (b) Temporary relief. The temporary relief phase of an investigation 
shall be concluded and a final order issued no later than 90 days after 
publication of the notice of investigation in the Federal Register, 
unless the temporary relief phase of the investigation has been 
designated ``more complicated'' by the Commission or the presiding 
administrative law judge pursuant to Sec. 210.22(c) and Sec. 210.60. 
If that designation has been made, the temporary relief phase of the 
investigation shall be concluded and a final order issued no later than 
150 days after publication of the notice of investigation in the Federal 
Register.
    (c) Computation of time. In computing the deadlines imposed in 
paragraph (b) of this section, there shall be excluded any period during 
which the investigation is suspended pursuant to Sec. 210.23.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67629, Dec. 30, 1994; 61 
FR 43432, Aug. 23, 1996; 73 FR 38326, July 7, 2008]



                       Subpart H_Temporary Relief



Sec. 210.52  Motions for temporary relief.

    Requests for temporary relief under section 337 (e) or (f) of the 
Tariff Act of 1930 shall be made through a motion filed in accordance 
with the following provisions:
    (a) A complaint requesting temporary relief shall be accompanied by 
a motion setting forth the complainant's request for such relief. In 
determining whether to grant temporary relief, the Commission will apply 
the standards the U.S. Court of Appeals for the Federal Circuit uses in 
determining whether to affirm lower court decisions granting preliminary 
injunctions. The motion for temporary relief accordingly must contain a 
detailed statement of specific facts bearing on the factors the Federal 
Circuit has stated that a U.S. District Court must consider in granting 
a preliminary injunction.
    (b) The motion must also contain a detailed statement of facts 
bearing on:
    (1) Whether the complainant should be required to post a bond as a 
prerequisite to the issuance of temporary relief; and
    (2) The appropriate amount of the bond, if the Commission determines 
that a bond will be required.
    (c) In determining whether to require a bond as a prerequisite to 
the issuance of temporary relief, the Commission will be guided by 
practice under Rule 65 of the Federal Rules of Civil Procedure.
    (d) The following documents and information also shall be filed 
along with the motion for temporary relief:
    (1) A memorandum of points and authorities in support of the motion;
    (2) Affidavits executed by persons with knowledge of the facts 
asserted in the motion; and
    (3) All documents, information, and other evidence in complainant's 
possession that complainant intends to submit in support of the motion.
    (e) If the complaint, the motion for temporary relief, or the 
documentation supporting the motion for temporary relief contains 
confidential business information as defined in Sec. 201.6(a) of this 
chapter, the complainant must follow the procedure outlined in 
Sec. Sec. 210.4(a), 210.5(a), 201.6 (a) and (c), 210.8(a), and 210.55 
of this part.

[59 FR 39039, Aug. 1, 1994, as amended at 59 FR 67629, Dec. 30, 1994; 60 
FR 32444, June 22, 1995]



Sec. 210.53  Motion filed after complaint.

    (a) A motion for temporary relief may be filed after the complaint, 
but must be filed prior to the Commission determination under Sec. 
210.10 on whether to institute an investigation. A motion filed after 
the complaint shall contain

[[Page 174]]

the information, documents, and evidence described in Sec. 210.52 and 
must also make a showing that extraordinary circumstances exist that 
warrant temporary relief and that the moving party was not aware, and 
with due diligence could not have been aware, of those circumstances at 
the time the complaint was filed. When a motion for temporary relief is 
filed after the complaint but before the Commission has determined 
whether to institute an investigation based on the complaint, the 35-day 
period allotted under Sec. 210.58 for review of the complaint and 
informal investigatory activity will begin to run anew from the date on 
which the motion was filed.
    (b) A motion for temporary relief may not be filed after an 
investigation has been instituted.



Sec. 210.54  Service of motion by the complainant.

    Notwithstanding the provisions of Sec. 210.11 regarding service of 
the complaint by the Commission upon institution of an investigation, on 
the day the complainant files a complaint with the Commission (see Sec. 
210.8(a)(1) and Sec. 210.8(a)(2) of subpart B of this part), the 
complainant must serve non-confidential copies of both documents (as 
well as non-confidential copies of all materials or documents attached 
thereto) on all proposed respondents and on the embassy in Washington, 
DC of the country in which each proposed respondent is located as 
indicated in the Complaint. If a complainant files any supplemental 
information with the Commission prior to institution, nonconfidential 
copies of that supplemental information must be served on all proposed 
respondents and on the embassy in Washington, DC of the country in which 
each proposed respondent is located as indicated in the complaint. The 
complaint, motion, and supplemental information, if any, shall be served 
by messenger, overnight delivery, or equivalent means. A signed 
certificate of service must accompany the complaint and motion for 
temporary relief. If the certificate does not accompany the complaint 
and the motion, the Secretary shall not accept the complaint or the 
motion and shall promptly notify the submitter. Actual proof of service 
on each respondent and embassy (e.g., certified mail return receipts, 
messenger, or overnight delivery receipts, or other proof of delivery)--
or proof of a serious but unsuccessful effort to make such service--must 
be filed within 10 days after the filing of the complaint and motion. If 
the requirements of this section are not satisfied, the Commission may 
extend its 35-day deadline under Sec. 210.58 for determining whether to 
provisionally accept the motion for temporary relief and institute an 
investigation on the basis of the complaint.

[73 FR 38326, July 7, 2008]



Sec. 210.55  Content of service copies.

    (a) Any purported confidential business information that is deleted 
from the nonconfidential service copies of the complaint and motion for 
temporary relief must satisfy the requirements of Sec. 201.6(a) of this 
chapter (which defines confidential information for purposes of 
Commission proceedings). For attachments to the complaint or motion that 
are confidential in their entirety, the complainant must provide a 
nonconfidential summary of what each attachment contains. Despite the 
redaction of confidential material from the complaint and motion for 
temporary relief, the nonconfidential service copies must contain enough 
factual information about each element of the violation alleged in the 
complaint and the motion to enable each proposed respondent to 
comprehend the allegations against it.
    (b) If the Commission determines that the complaint, motion for 
temporary relief, or any exhibits or attachments thereto contain 
excessive designations of confidentiality that are not warranted under 
Sec. 201.6(a) of this chapter, the Commission may require the 
complainant to file and serve new non-confidential versions of the 
aforesaid submissions in accordance with Sec. 210.54 and may determine 
that the 35-day period under Sec. 210.58 for deciding whether to 
institute an investigation and to provisionally accept the motion for 
temporary relief for further processing shall begin to run anew from the 
date the new non-confidential versions are filed with the Commission and

[[Page 175]]

served on the proposed respondents in accordance with Sec. 210.54.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38326, July 7, 2008]



Sec. 210.56  Notice accompanying service copies.

    (a) Each service copy of the complaint and motion for temporary 
relief shall be accompanied by a notice containing the following text:

    Notice is hereby given that the attached complaint and motion for 
temporary relief will be filed with the U.S. International Trade 
Commission in Washington, DC on --------, 20--. The filing of the 
complaint and motion will not institute an investigation on that date, 
however, nor will it begin the period for filing responses to the 
complaint and motion pursuant to 19 CFR 210.13 and 210.59.
    Upon receipt of the complaint, the Commission will examine the 
complaint for sufficiency and compliance with 19 CFR 201.8, 210.4, 
210.5, 210.8, and 210.12. The Commission's Office of Unfair Import 
Investigations will conduct informal investigatory activity pursuant to 
19 CFR 210.9 to identify sources of relevant information and to assure 
itself of the availability thereof. The motion for temporary relief will 
be examined for sufficiency and compliance with 19 CFR 201.8, 210.4, 
210.5, 210.52, 210.53(a) (if applicable), 210.54, 210.55, and 210.56, 
and will be subject to the same type of preliminary investigative 
activity as the complaint.
    The Commission generally will determine whether to institute an 
investigation on the basis of the complaint and whether to provisionally 
accept the motion for temporary relief within 35 days after the 
complaint and motion are filed or, if the motion is filed after the 
complaint, within 35 days after the motion is filed--unless the 35-day 
deadline is extended pursuant to 19 CFR 210.53, 210.54, 210.55(b), 
210.57, or 210.58. If the Commission determines to institute an 
investigation and provisionally accept the motion, the motion will be 
assigned to a Commission administrative law judge for issuance of an 
initial determination in accordance with 19 CFR 210.66. See 19 CFR 
210.10 and 210.58.
    If the Commission determines to conduct an investigation of the 
complaint and motion for temporary relief, the investigation will be 
formally instituted on the date the Commission publishes a notice of 
investigation in the Federal Register pursuant to 19 CFR 210.10(b). If 
an investigation is instituted, copies of the complaint, the notice of 
investigation, and the Commission's Rules of Practice and Procedure (19 
CFR Part 210) will be served on each respondent by the Commission 
pursuant to 19 CFR 210.11(a). Responses to the complaint, the notice of 
investigation, and the motion for temporary relief must be filed within 
10 days after Commission service thereof, and must comply with 19 CFR 
201.8, 210.4, 210.5, 210.13, and 210.59. See also 19 CFR 201.14 and 
210.6 regarding computation of the 10-day response period.
    If, after reviewing the complaint and motion for temporary relief, 
the Commission determines not to institute an investigation, the 
complaint and motion will be dismissed and the Commission will provide 
written notice of that decision and the reasons therefor to the 
complainant and all proposed respondents pursuant to 19 CFR 210.10.
    For information concerning the filing and processing of the 
complaint and its treatment, and to ask general questions concerning 
section 337 practice and procedure, contact the Office of Unfair Import 
Investigations, U.S. International Trade Commission, 500 E Street SW., 
Room 401, Washington, DC 20436, telephone 202-205-2560. Such inquiries 
will be referred to the Commission investigative attorney assigned to 
the complaint. (See also the Commissions's Rules of Practice and 
Procedure set forth in 19 CFR Part 210.)
    To learn the date that the Commission will vote on whether to 
institute an investigation and the publication date of the notice of 
investigation (if the Commission decides to institute an investigation), 
contact the Office of the Secretary, U.S. International Trade 
Commission, 500 E Street SW., room 112, Washington, DC 20436, telephone 
202-205-2000.
    This notice is being provided pursuant to 19 CFR 210.56.

    (b) In the event that the complaint and motion for temporary relief 
are filed after the date specified in the above notice, the complainant 
must serve a supplementary notice to all proposed respondents and 
embassies stating the correct filing date. The supplementary notice 
shall be served by messenger, overnight delivery, or equivalent means. 
The complainant shall file a certificate of service and a copy of the 
supplementary notice with the Commission.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38326, July 7, 2008]



Sec. 210.57  Amendment of the motion.

    A motion for temporary relief may be amended at any time prior to 
the institution of an investigation. All material filed to amend the 
motion (or the complaint) must be served on all proposed respondents and 
on the embassies in

[[Page 176]]

Washington, DC, of the foreign governments that they represent, in 
accordance with Sec. 210.54. If the amendment expands the scope of the 
motion or changes the complainant's assertions on the issue of whether a 
bond is to be required as a prerequisite to the issuance of temporary 
relief or the appropriate amount of the bond, the 35-day period under 
Sec. 210.58 for determining whether to institute an investigation and 
provisionally accept the motion for temporary relief shall begin to run 
anew from the date the amendment is filed with the Commission. A motion 
for temporary relief may not be amended to expand the scope of the 
temporary relief inquiry after an investigation is instituted.



Sec. 210.58  Provisional acceptance of the motion.

    The Commission shall determine whether to accept a motion for 
temporary relief at the same time it determines whether to institute an 
investigation on the basis of the complaint. That determination shall be 
made within 35 days after the complaint and motion for temporary relief 
are filed, unless the 35-day period is restarted pursuant to Sec. 
210.53(a), 210.54, 210.55, or 210.57, or exceptional circumstances exist 
which preclude adherence to the prescribed deadline. (See Sec. 
210.10(a)(1).) Before the Commission determines whether to provisionally 
accept a motion for temporary relief, the motion will be examined for 
sufficiency and compliance with Sec. Sec. 210.52, 210.53(a) (if 
applicable), 210.54 through 210.56, as well as Sec. Sec. 201.8, 210.4, 
and 210.5. The motion will be subject to the same type of preliminary 
investigatory activity as the complaint. (See Sec. 210.9(b).) 
Acceptance of a motion pursuant to this paragraph constitutes 
provisional acceptance for referral of the motion to the chief 
administrative law judge, who will assign the motion to a presiding 
administrative law judge for issuance of an initial determination under 
Sec. 210.66(a). Commission rejection of an insufficient or improperly 
filed complaint will preclude acceptance of a motion for temporary 
relief. Commission rejection of a motion for temporary relief will not 
preclude institution of an investigation of the complaint.



Sec. 210.59  Responses to the motion and the complaint.

    (a) Any party may file a response to a motion for temporary relief. 
Unless otherwise ordered by the administrative law judge, a response to 
a motion for temporary relief in an ordinary investigation must be filed 
not later than 10 days after service of the motion by the Commission. In 
a ``more complicated'' investigation, the response shall be due within 
20 days after such service, unless otherwise ordered by the presiding 
administrative law judge.
    (b) The response must comply with the requirements of Sec. 201.8 of 
this chapter, as well as Sec. Sec. 210.4 and 210.5 of this part, and 
shall contain the following information:
    (1) A statement that sets forth with particularity any objection to 
the motion for temporary relief;
    (2) A statement of specific facts concerning the factors the U.S. 
Court of Appeals for the Federal Circuit would consider in determining 
whether to affirm lower court decisions granting or denying preliminary 
injunctions;
    (3) A memorandum of points and authorities in support of the 
respondent's response to the motion;
    (4) Affidavits, where possible, executed by persons with knowledge 
of the facts specified in the response. Each response to the motion must 
address, to the extent possible, the complainant's assertions regarding 
whether a bond should be required and the appropriate amount of the 
bond. Responses to the motion for temporary relief also may contain 
counter-proposals concerning the amount of the bond or the manner in 
which the bond amount should be calculated.
    (c) Each response to the motion for temporary relief must also be 
accompanied by a response to the complaint and notice of investigation. 
Responses to the complaint and notice of investigation must comply with 
Sec. 201.8 of this chapter, Sec. Sec. 210.4 and 210.5 of this part, 
and any protective order issued by the administrative law judge under 
Sec. 210.34 of this part.

[[Page 177]]



Sec. 210.60  Designating an investigation ``more complicated'' for the purpose 

of adjudicating a motion for temporary relief.

    At the time the Commission determines to institute an investigation 
and provisionally accepts a motion for temporary relief pursuant to 
Sec. 210.58, the Commission may designate the investigation ``more 
complicated'' pursuant to Sec. 210.22(c) for the purpose of obtaining 
up to 60 additional days to adjudicate the motion for temporary relief. 
In the alternative, after the motion for temporary relief is referred to 
the administrative law judge for an initial determination under Sec. 
210.66(a), the administrative law judge may issue an order, sua sponte 
or on motion, designating the investigation ``more complicated'' for the 
purpose of obtaining additional time to adjudicate the motion for 
temporary relief. Such order shall constitute a final determination of 
the Commission, and notice of the order shall be published in the 
Federal Register. As required by section 337(e)(2) of the Tariff Act of 
1930, the notice shall state the reasons that the temporary relief phase 
of the investigation was designated ``more complicated.'' The ``more 
complicated'' designation may be conferred by the Commission or the 
presiding administrative law judge pursuant to this paragraph on the 
basis of the complexity of the issues raised in the motion for temporary 
relief or the responses thereto, or for other good cause shown.



Sec. 210.61  Discovery and compulsory process.

    The presiding administrative law judge shall set all discovery 
deadlines. The administrative law judge's authority to compel discovery 
includes discovery relating to the following issues:
    (a) Any matter relevant to the motion for temporary relief and the 
responses thereto, including the issues of bonding by the complainant; 
and
    (b) The issues the Commission considers pursuant to sections 337 
(e)(1), (f)(1), and (j)(3) of the Tariff Act of 1930, viz.,
    (1) The appropriate form of relief (notwithstanding the form 
requested in the motion for temporary relief),
    (2) Whether the public interest precludes that form of relief, and
    (3) The amount of the bond to be posted by the respondents to secure 
importations or sales of the subject imported merchandise while the 
temporary relief order is in effect. The administrative law judge may, 
but is not required to, make findings on the issues specified in 
sections 337 (e)(1), (f)(1), or (j)(3) of the Tariff Act of 1930. 
Evidence and information obtained through discovery on those issues will 
be used by the parties and considered by the Commission in the context 
of the parties' written submissions on remedy, the public interest, and 
bonding by respondents, which are filed with the Commission pursuant to 
Sec. 210.67(b).



Sec. 210.62  Evidentiary hearing.

    An opportunity for a hearing in accordance with the Administrative 
Procedure Act and Sec. 210.36 of this part will be provided in 
connection with every motion for temporary relief. If a hearing is 
conducted, the presiding administrative law judge may, but is not 
required to, take evidence concerning the issues of remedy, the public 
interest, and bonding by respondents under section 337 (e)(1), (f)(1), 
and (j)(3) of the Tariff Act of 1930.



Sec. 210.63  Proposed findings and conclusions and briefs.

    The administrative law judge shall determine whether and, if so, to 
what extent the parties shall be permitted to file proposed findings of 
fact, proposed conclusions of law, or briefs under Sec. 210.40 
concerning the issues involved in adjudication of the motion for 
temporary relief.



Sec. 210.64  Interlocutory appeals.

    There will be no interlocutory appeals to the Commission under Sec. 
210.24 on any matter connected with a motion for temporary relief that 
is decided by an administrative law judge prior to the issuance of the 
initial determination on the motion for temporary relief.

[[Page 178]]



Sec. 210.65  Certification of the record.

    When the administrative law judge issues an initial determination 
concerning temporary relief pursuant to Sec. 210.66(a), he shall also 
certify to the Commission the record upon which the initial 
determination is based.



Sec. 210.66  Initial determination concerning temporary relief; Commission 

action thereon.

    (a) On or before the 70th day after publication of the notice of 
investigation in an ordinary investigation, or on or before the 120th 
day after such publication in a ``more complicated'' investigation, the 
administrative law judge will issue an initial determination concerning 
the issues listed in Sec. Sec. 210.52 and 210.59. If the 70th day or 
the 120th day is a Saturday, Sunday, or Federal holiday, the initial 
determination must be received in the Office of the Secretary no later 
than 12:00 noon on the first business day after the 70-day or 120-day 
deadline. The initial determination may, but is not required to, address 
the issues of remedy, the public interest, and bonding by the 
respondents pursuant under sections 337 (e)(1), (f)(1), and (j)(3) of 
the Tariff Act of 1930.
    (b) If the initial determination on temporary relief is issued on 
the 70-day or 120-day deadline imposed in paragraph (a) of this section, 
the initial determination will become the Commission's determination 20 
calendar days after issuance thereof in an ordinary case, and 30 
calendar days after issuance in a ``more complicated'' investigation, 
unless the Commission modifies, reverses, or sets aside the initial 
determination in whole or part within that period. If the initial 
determination on temporary relief is issued before the 70-day or 120-day 
deadline imposed in paragraph (a) of this section, the Commission will 
add the extra time to the 20-day or 30-day deadline to which it would 
otherwise have been held. In computing the deadlines imposed by this 
paragraph, intermediary Saturdays, Sundays, and Federal holidays shall 
be included. If the last day of the period is a Saturday, Sunday, or 
Federal holiday as defined in Sec. 201.14(a) of this chapter, the 
effective date of the initial determination shall be extended to the 
next business day.
    (c) The Commission will not modify, reverse, or set aside an initial 
determination concerning temporary relief unless the Commission finds 
that a finding of material fact is clearly erroneous, that the initial 
determination contains an error of law, or that there is a policy matter 
warranting discussion by the Commission. All parties may file written 
comments concerning any clear error of material fact, error of law, or 
policy matter warranting such action by the Commission. Such comments 
must be limited to 35 pages in an ordinary investigation and 45 pages in 
a ``more complicated'' investigation. The comments must be filed no 
later than seven calendar days after issuance of the initial 
determination in an ordinary case and 10 calendar days after issuance of 
the initial determination in a ``more complicated'' investigation. In 
computing the aforesaid 7-day and 10-day deadlines, intermediary 
Saturdays, Sundays, and Federal holidays shall be included. If the 
initial determination is issued on a Friday, however, the filing 
deadline for comments shall be measured from the first business day 
after issuance. If the last day of the filing period is a Saturday, 
Sunday, or Federal holiday as defined in Sec. 201.14(a) of this 
chapter, the filing deadline shall be extended to the next business day. 
The parties shall serve their comments on other parties by messenger, 
overnight delivery, or equivalent means.
    (d) Notice of the initial determination shall be served on the other 
agencies listed in Sec. 210.50(a)(2). Those agencies will be given 10 
calendar days from the date of service of the notice to file comments on 
the initial determination.
    (e)(1) Each party may file a response to each set of comments filed 
by another party. All such reply comments must be filed within 10 
calendar days after issuance of the initial determination in an ordinary 
case and within 14 calendar days after issuance of an initial 
determination in a ``more complicated'' investigation. The deadlines for 
filing reply comments shall be computed in the manner described in 
paragraph (c) of this section, except that in

[[Page 179]]

no case shall a party have fewer than two calendar days to file reply 
comments.
    (2) Each set of reply comments will be limited to 20 pages in an 
ordinary investigation and 30 pages in a ``more complicated'' case.
    (f) If the Commission determines to modify, reverse, or set aside 
the initial determination, the Commission will issue a notice and, if 
appropriate, a Commission opinion. If the Commission does not modify, 
reverse, or set aside the administrative law judge's initial 
determination within the time provided under paragraph (b) of this 
section, the initial determination will automatically become the 
determination of the Commission. Notice of the Commission's 
determination concerning the initial determination will be issued on the 
statutory deadline for determining whether to grant temporary relief, or 
as soon as possible thereafter, and will be served on the parties. 
Notice of the determination will be published in the Federal Register if 
the Commission's disposition of the initial determination has resulted 
in a determination that there is reason to believe that section 337 has 
been violated and a temporary remedial order is to be issued. If the 
Commission determines (either by reversing or modifying the 
administrative law judge's initial determination, or by adopting the 
initial determination) that the complainant must post a bond as a 
prerequisite to the issuance of temporary relief, the Commission may 
issue a supplemental notice setting forth conditions for the bond if any 
(in addition to those outlined in the initial determination) and the 
deadline for filing the bond with the Commission.

[59 FR 39039, Aug. 1, 1994, as amended at 60 FR 53121, Oct. 12, 1995; 73 
FR 38326, July 7, 2008]



Sec. 210.67  Remedy, the public interest, and bonding.

    The procedure for arriving at the Commission's determination of the 
issues of the appropriate form of temporary relief, whether the public 
interest factors enumerated in the statute preclude such relief, and the 
amount of the bond under which respondents' merchandise will be 
permitted to enter the United States during the pendency of any 
temporary relief order issued by the Commission, is as follows:
    (a) While the motion for temporary relief is before the 
administrative law judge, he may compel discovery on matters relating to 
remedy, the public interest and bonding (as provided in Sec. 210.61). 
The administrative law judge also is authorized to make findings 
pertaining to the public interest, as provided in Sec. 210.66(a). Such 
findings may be superseded, however, by Commission findings on that 
issue as provided in paragraph (c) of this section.
    (b) On the 65th day after institution in an ordinary case or on the 
110th day after institution in a ``more complicated'' investigation, all 
parties shall file written submissions with the Commission addressing 
those issues. The submissions shall refer to information and evidence 
already on the record, but additional information and evidence germane 
to the issues of appropriate relief, the statutory public interest 
factors, and bonding by respondents may be provided along with the 
parties' submissions. Pursuant to Sec. 210.50(a)(4), interested persons 
may also file written comments, on the aforesaid dates, concerning the 
issues of remedy, the public interest, and bonding by the respondents.
    (c) On or before the 90-day or 150-day statutory deadline for 
determining whether to order temporary relief under section 337 (e)(1) 
and/or (f)(1) of the Tariff Act of 1930, the Commission will determine 
what relief is appropriate in light of any violation that appears to 
exist, whether the public interest factors enumerated in the statute 
preclude the issuance of such relief, and the amount of the bond under 
which the respondents' merchandise will be permitted to enter the United 
States during the pendency of any temporary relief order issued by the 
Commission. In the event that Commission's findings on the public 
interest pursuant to this paragraph are inconsistent with findings made 
by the administrative law judge in the initial determination pursuant to 
Sec. 210.66(a), the Commission's findings are controlling.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38326, July 7, 2008]

[[Page 180]]



Sec. 210.68  Complainant's temporary relief bond.

    (a) In every investigation under this part involving a motion for 
temporary relief, the question of whether the complainant shall be 
required to post a bond as a prerequisite to the issuance of such relief 
shall be addressed by the parties, the presiding administrative law 
judge, and the Commission in the manner described in Sec. Sec. 210.52, 
210.59, 210.61, 210.62, and 210.66. If the Commission determines that a 
bond should be required, the bond may consist of one or more of the 
following:
    (1) The surety bond of a surety or guarantee corporation that is 
licensed to do business with the United States in accordance with 31 
U.S.C. 9304-9306 and 31 CFR parts 223 and 224;
    (2) The surety bond of an individual, a trust, an estate, or a 
partnership, or a corporation, whose solvency and financial 
responsibility will be investigated and verified by the Commission; or
    (3) A certified check, a bank draft, a post office money order, 
cash, a United States bond, a Treasury note, or other Government 
obligation within the meaning of 31 U.S.C. 9301 and 31 CFR part 225, 
which is owned by the complainant and tendered in lieu of a surety bond, 
pursuant to 31 U.S.C. 9303(c) and 31 CFR part 225.

The same restrictions and requirements applicable to individual and 
corporate sureties on Customs bonds, which are set forth in 19 CFR part 
113, shall apply with respect to sureties on bonds filed with the 
Commission by complainants as a prerequisite to a temporary relief under 
section 337 of the Tariff Act of 1930. If the surety is an individual, 
the individual must file an affidavit of the type shown in appendix A to 
Sec. 210.68. Unless otherwise ordered by the Commission, while the bond 
of the individual surety is in effect, an updated affidavit must be 
filed every four months (computed from the date on which the bond was 
approved by the Secretary or the Commission).
    (b) The bond and accompanying documentation must be submitted to the 
Commission within the time specified in the Commission notice, order, 
determination, or opinion requiring the posting of a bond, or within 
such other time as the Commission may order. If the bond is not 
submitted within the specified period (and an extension of time has not 
been granted), temporary relief will not be issued.
    (c) The corporate or individual surety on a bond or the person 
posting a certified check, a bank draft, a post office money order, 
cash, a United States bond, a Treasury note, or other Government 
obligation in lieu of a surety bond must provide the following 
information on the face of the bond or in the instrument authorizing the 
Government to collect or sell the bond, certified check, bank draft, 
post office money order, cash, United States bond, Treasury note, or 
other Government obligation in response to a Commission order requiring 
forfeiture of the bond pursuant to Sec. 210.70:
    (1) The investigation caption and docket number;
    (2) The names, addresses, and seals (if appropriate) of the 
principal, the surety, the obligee, as well as the ``attorney in fact'' 
and the registered process agent (if applicable) (see Customs Service 
regulations in 19 CFR part 113 and Treasury Department regulations in 31 
CFR parts 223, 224, and 225);
    (3) The terms and conditions of the bond obligation, including the 
reason the bond is being posted, the amount of the bond, the effective 
date and duration of the bond (as prescribed by the Commission order, 
notice, determination, or opinion requiring the complainant to post a 
bond); and
    (4) A section at the bottom of the bond or other instrument for the 
date and authorized signature of the Secretary to reflect Commission 
approval of the bond.
    (d) Complainants who wish to post a certified check, a bank draft, a 
post office money order, cash, a United States bond, a Treasury note, or 
other Government obligation in lieu of a surety bond must notify the 
Commission in writing immediately upon receipt of the Commission 
document requiring the posting of a bond, and must contact the Secretary 
to make arrangements for Commission receipt, handling, management, and 
deposit of the certified check, bank draft, post office money order, 
cash, United States bond, Treasury note, or other Government

[[Page 181]]

obligation tendered in lieu of a surety bond, in accordance with 31 
U.S.C. Sec. 9303, 31 CFR parts 202, 206, and 225 and other governing 
Treasury regulations and circular(s). If required by the governing 
Treasury regulations and circular, a certified check, a bank draft, a 
post office money order, cash, a United States bond, a Treasury note, or 
other government obligation tendered in lieu of a surety bond may have 
to be collateralized. See, e.g., 31 CFR 202.6 and the appropriate 
Treasury Circular.

       Appendix A to Sec. 210.68--Affidavit by Individual Surety

  United States International Trade Commission Affidavit by Individual 
                          Surety 19 CFR 210.68

________________________________________________________________________
State of
________________________________________________________________________
County

SS:_____________________________________________________________________
    I, the undersigned, being duly sworn, depose and say that I am a 
citizen of the United States, and of full age and legally competent; 
that I am not a partner in any business of the principal on the bond or 
bonds on which I appear as surety; and that the information herein below 
furnished is true and complete to the best of my knowledge. This 
affidavit is made to induce the United States International Trade 
Commission to accept me as surety on the bond(s) filed or to be filed 
with the United States International Trade Commission pursuant to 19 CFR 
210.68. I agree to notify the Commission of any transfer or change in 
any of the assets herein enumerated.
________________________________________________________________________
1. Name (First, Middle, Last)
________________________________________________________________________
2. Home Address
________________________________________________________________________
3. Type & Duration of Occupation
________________________________________________________________________
4. Name of Employer (If Self-Employed)
________________________________________________________________________
5. Business Address
________________________________________________________________________
6. Telephone No.

Home____________________________________________________________________

Business________________________________________________________________
    7. The following is a true representation of my assets, liabilities, 
and net worth and does not include any financial interest I have in the 
assets of the principal on the bond(s) on which I appear as surety.

a. Fair value of solely owned real estate *...................
b. All mortgages or other encumbrances on the real estate       ........
 included in Line a...........................................
c. Real estate equity (subtract Line b from Line a)...........  ........
d. Fair value of all solely owned property other than real      ........
 estate.......................................................
e. Total of the amounts on Lines c and d......................  ........
f. All other liabilities owing or incurred not included in      ........
 Line b.......................................................
g. Net worth (subtract Line f from Line e)....................  ........
 
*Do not include property exempt from execution and sale for any reason.
  Surety's interest in community property may be included if not so
  exempt.

________________________________________________________________________
8. LOCATION AND DESCRIPTION OF REAL ESTATE OF WHICH I AM SOLE OWNER, THE 
          VALUE OF WHICH IS IN LINE a, ITEM 7 ABOVE \1\
    Amount of assessed value of above real estate for taxation purposes:
________________________________________________________________________
9. DESCRIPTION OF PROPERTY INCLUDED IN LINE d, ITEM 7 ABOVE (List the 
          value of each category of property separately) \2\
________________________________________________________________________
10. ALL OTHER BONDS ON WHICH I AM SURETY (State character and amount of 
          each bond; if none, so state) \3\
________________________________________________________________________
11. SIGNATURE
________________________________________________________________________
12. BOND AND COMMISSION INVESTIGATION TO WHICH THIS AFFIDAVIT RELATES
    SUBSCRIBED AND SWORN TO BEFORE ME AS FOLLOWS:
DATE OATH ADMINISTERED
MONTH DAY YEAR

CITY____________________________________________________________________
STATE (Or Other Jurisdiction)___________________________________________

________________________________________________________________________
NAME & TITLE OF OFFICIAL
ADMINISTERING OATH______________________________________________________

SIGNATURE_______________________________________________________________

MY COMMISSION EXPIRES___________________________________________________

                              INSTRUCTIONS

    1. Here describe the property by giving the number of the lot and 
square or block, and addition or subdivision, if in a city, and, if in 
the country, after showing state, county, and township, locate the 
property by metes and bounds, or by part of section, township, and 
range, so that it may be identified.
    2. Here describe the property by name so that it can be identified--
for example ``Fifteen shares of the stock of the ``National Metropolitan 
Bank, New York City,'' or ``Am. T. & T. s. f.5's 60.''
    3. Here state what other bonds the affiant has already signed as 
surety, giving the

[[Page 182]]

name and address of the principal, the date, and the amount and 
character of the bond.

[59 FR 39039, Aug. 1, 1994; 59 FR 64286, Dec. 14, 1994]



Sec. 210.69  Approval of complainant's temporary relief bond.

    (a) In accordance with 31 U.S.C. Sec. 9304(b), all bonds posted by 
complainants must be approved by the Commission before the temporary 
relief sought by the complainant will be issued. See also 31 U.S.C. 
Sec. 9303(a) and 31 CFR 225.1 and 225.20. The Commission's bond 
approval officer for purposes of those provisions shall be the 
Secretary.
    (b) The bond approval process may entail investigation by the 
Secretary or the Commission's Office of Investigations to determine the 
veracity of all factual information set forth in the bond and the 
accompanying documentation (e.g., powers of attorney), as well as any 
additional verification required by 31 CFR parts 223, 224, or 225. The 
Secretary may reject a bond on one or more of the following grounds:
    (1) Failure to comply with the instructions in the Commission 
determination, order, or notice directing the complainant to post a 
bond;
    (2) Failure of the surety or the bond to provide information or 
supporting documentation required by the Commission, the Secretary, 
Sec. 210.68 of this part, 31 CFR parts 223 or 224, or other governing 
statutes, regulations, or Treasury circulars, or because of a limitation 
prescribed in a governing statute, regulation, or circular;
    (3) Failure of an individual surety to execute and file with the 
bond, an affidavit of the type shown in appendix A to Sec. 210.68, 
which sets forth information about the surety's assets, liabilities, net 
worth, real estate and other property of which the initial surety is the 
sole owner, other bonds on which the individual surety is a surety (and 
which must be updated at 4-month intervals while the bond is in effect, 
measured from the date on which the bond is approved by the Secretary on 
behalf of the Commission or by the Commission);
    (4) Any question about the solvency or financial responsibility of 
the surety, or any question of fraud, misrepresentation, or perjury 
which comes to light as a result of the verification inquiry during the 
bond approval process; and
    (5) Any other reason deemed appropriate by the Secretary.
    (c) If the complainant believes that the Secretary's rejection of 
the bond was erroneous as a matter of law, the complainant may appeal 
the Secretary's rejection of the bond by filing a petition with the 
Commission in the form of a letter to the Chairman, within 10 days after 
service of the rejection letter.
    (d) After the bond is approved and temporary relief is issued, if 
any question concerning the continued solvency of the individual or the 
legality or enforceability of the bond or undertaking develops, the 
Commission may take the following action(s), sua sponte or on motion;
    (1) Revoke the Commission approval of the bond and require 
complainant to post a new bond; or
    (2) Revoke or vacate the temporary remedial order for public 
interest reasons or changed conditions of law or fact (criteria that are 
the basis for modification or rescission of final Commission action 
pursuant to Sec. 210.76(a)(1) and (b)); or
    (3) Notify the Treasury Department if the problem involves a 
corporate surety licensed to do business with the United States under 31 
U.S.C. Sec. Sec. 9303-9306 and 31 CFR parts 223 and 224; or
    (4) Refer the matter to the U.S. Department of Justice if there is a 
suggestion of fraud, perjury, or related conduct.



Sec. 210.70  Forfeiture or return of complainant's temporary relief bond.

    (a)(1) If the Commission determines that one or more of the 
respondents whose merchandise was covered by the temporary relief order 
has not violated section 337 of the Tariff Act of 1930 to the extent 
alleged in the motion for temporary relief and provided for in the 
temporary relief order, proceedings to determine whether the 
complainant's bond should be forfeited to one or more respondents in 
whole or part may be initiated upon the filing of a motion by a 
respondent within 30 days after filing of the aforesaid Commission 
determination on violation.

[[Page 183]]

    (2) A complainant may file a motion for the return of its bond.
    (b) Any nonmoving party may file a response to a motion filed under 
paragraph (a) of this section within 15 days after filing of the motion, 
unless otherwise ordered by the administrative law judge.
    (c) A motion for forfeiture or return of a complainant's temporary 
relief bond in whole or part will be adjudicated by the administrative 
law judge in an initial determination with a 45-day effective date, 
which shall be subject to review under the provisions of Sec. Sec. 
210.42 through 210.45. In determining whether to grant the motion, the 
administrative law judge and the Commission will be guided by practice 
under Rule 65 of the Federal Rules of Civil Procedure.

[59 FR 67629, Dec. 30, 1994]



         Subpart I_Enforcement Procedures and Advisory Opinions



Sec. 210.71  Information gathering.

    (a) Power to require information. (1) Whenever the Commission issues 
an exclusion order, the Commission may require any person to report 
facts available to that person that will help the Commission assist the 
U.S. Customs Service in determining whether and to what extent there is 
compliance with the order. Similarly, whenever the Commission issues a 
cease and desist order or a consent order, it may require any person to 
report facts available to that person that will aid the Commission in 
determining whether and to what extent there is compliance with the 
order or whether and to what extent the conditions that led to the order 
are changed.
    (2) The Commission may also include provisions that exercise any 
other information-gathering power available to the Commission by law, 
regardless of whether the order at issue is an exclusion order, a cease 
and desist order, or a consent order. The Commission may at any time 
request the cooperation of any person or agency in supplying it with 
information that will aid the Commission or the U.S. Customs Service in 
making the determinations described in paragraph (a)(1) of this section.
    (b) Form and detail of reports. Reports under paragraph (a) of this 
section are to be in writing, under oath, and in such detail and in such 
form as the Commission prescribes.
    (c) Power to enforce informational requirements. Terms and 
conditions of exclusion orders, cease and desist orders, and consent 
orders for reporting and information gathering shall be enforceable by 
the Commission by a civil action under 19 U.S.C. Sec. 1333, or, at the 
Commission's discretion, in the same manner as any other provision of 
the exclusion order, cease and desist order, or consent order is 
enforced.
    (d) Term of reporting requirement. An exclusion order, cease and 
desist order, or consent order may provide for the frequency of 
reporting or information gathering and the date on which these 
activities are to terminate. If no date for termination is provided, 
reporting and information gathering shall terminate when the exclusion 
order, cease and desist order, or consent order or any amendment to it 
expires by its own terms or is terminated.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38327, July 7, 2008]



Sec. 210.72  Confidentiality of information.

    Confidential information (as defined in Sec. 201.6(a) of this 
chapter) that is provided to the Commission pursuant to exclusion order, 
cease and desist order, or consent order will be received by the 
Commission in confidence. Requests for confidential treatment shall 
comply with Sec. 201.6 of this chapter. The restrictions on disclosure 
and the procedures for handling such information (which are set out in 
Sec. Sec. 210.5 and 210.39) shall apply and, in a proceeding under 
Sec. Sec. 210.75 or 210.76, the Commission or the presiding 
administrative law judge may, upon motion or sua sponte, issue or 
continue appropriate protective orders.



Sec. 210.73  Review of reports.

    (a) Review to insure compliance. The Commission, through the Office 
of Unfair Import Investigations, will review reports submitted pursuant 
to any exclusion order, cease and desist order, or consent order and 
conduct such further

[[Page 184]]

investigation as it deems necessary to insure compliance with its 
orders.
    (b) Extension of time. The Director of the Office of Unfair Import 
Investigations may, for good cause shown, extend the time in which 
reports required by exclusion orders, cease and desist orders, and 
consent orders may be filed. An extension of time within which a report 
may be filed, or the filing of a report that does not evidence full 
compliance with the order, does not in any circumstances suspend or 
relieve a respondent from its obligation under the law with respect to 
compliance with such order.



Sec. 210.74  Modification of reporting requirements.

    (a) Exclusion and cease and desist orders. The Commission may modify 
reporting requirements of exclusion and cease and desist orders as 
necessary:
    (1) To help the Commission assist the U.S. Customs Service in 
ascertaining that there has been compliance with an outstanding 
exclusion order;
    (2) To help the Commission ascertain that there has been compliance 
with a cease and desist order;
    (3) To take account of changed circumstances; or
    (4) To minimize the burden of reporting or informational access.

An order to modify reporting requirements shall identify the reports 
involved and state the reason or reasons for modification. No reporting 
requirement will be suspended during the pendency of such a modification 
unless the Commission so orders. The Commission may, if the public 
interest warrants, announce that a modification of reporting is under 
consideration and ask for comment, but it may also modify any reporting 
requirement at any time without notice, consistent with the standards of 
this section.
    (b) Consent orders. Consistent with the standards set forth in 
paragraph (a) of this section, the Commission may modify reporting 
requirements of consent orders. The Commission shall serve notice of any 
proposed change, together with the reporting requirements to be modified 
and the reasons therefor, on each party subject to the consent order. 
Such parties shall be given the opportunity to submit briefs to the 
Commission, and the Commission may hold a hearing on the matter. Notice 
of any proposed change in the reporting requirements will be published 
in the Federal Register if the Commission determines to solicit public 
comment on the proposed change.

[59 FR 39039, Aug. 1, 1994, as amended at 60 FR 53121, Oct. 12, 1995]



Sec. 210.75  Proceedings to enforce exclusion orders, cease and desist orders, 

consent orders, and other Commission orders.

    (a) Informal enforcement proceedings. Informal enforcement 
proceedings may be conducted by the Commission, through the Office of 
Unfair Import Investigations, with respect to any act or omission by any 
person in possible violation of any provision of an exclusion order, 
cease and desist order, or consent order. Such matters may be handled by 
the Commission through correspondence or conference or in any other way 
that the Commission deems appropriate. The Commission may issue such 
orders as it deems appropriate to implement and insure compliance with 
the terms of an exclusion order, cease and desist order, or consent 
order, or any part thereof. Any matter not disposed of informally may be 
made the subject of a formal proceeding pursuant to this subpart.
    (b) Formal enforcement proceedings. (1) The Commission may institute 
an enforcement proceeding at the Commission level upon the filing by the 
complainant in the original investigation or his successor in interest, 
by the Office of Unfair Import Investigations, or by the Commission of a 
complaint setting forth alleged violations of any exclusion order, cease 
and desist order, or consent order. If a proceeding is instituted, the 
complaint shall be served upon the alleged violator and a notice of 
institution published in the Federal Register. Within 15 days after the 
date of service of such a complaint, the named respondent shall file a 
response to it. Responses shall fully advise the Commission as to the 
nature of any defense and shall admit or deny each allegation of the 
complaint specifically and in detail unless the respondent is without 
knowledge, in which case its

[[Page 185]]

answer shall so state and the statement shall operate as a denial. 
Allegations of fact not denied or controverted may be deemed admitted. 
Matters alleged as affirmative defenses shall be separately stated and 
numbered.
    (2) Upon the failure of a respondent to file and serve a response 
within the time and in the manner prescribed herein the Commission, in 
its discretion, may find the facts alleged in the complaint to be true 
and take such action as may be appropriate without notice or hearing, 
or, in its discretion, proceed without notice to take evidence on the 
allegations set forth in the complaint, provided that the Commission (or 
administrative law judge, if one is appointed) may permit late filings 
of an answer for good cause shown.
    (3) The Commission, in the course of a formal enforcement proceeding 
under this section may hold a public hearing and afford the parties to 
the enforcement proceeding the opportunity to appear and be heard. The 
hearing will not be subject to sections 554, 555, 556, 557, and 702 of 
title 5 of the United States Code. The Commission may delegate the 
hearing to the chief administrative law judge for designation of a 
presiding administrative law judge, who shall certify an initial 
determination to the Commission. That initial determination shall become 
the determination of the Commission 90 days after the date of service of 
the initial determination, unless the Commission, within 90 days after 
the date of such service shall have ordered review of the initial 
determination on certain issues therein, or by order shall have changed 
the effective date of the initial determination.
    (4) Upon conclusion of a formal enforcement proceeding under this 
section, the Commission may:
    (i) Modify a cease and desist order, consent order, and/or exclusion 
order in any manner necessary to prevent the unfair practices that were 
originally the basis for issuing such order;
    (ii) Bring civil actions in a United States district court pursuant 
to paragraph (c) of this section (and section 337(f)(2) of the Tariff 
Act of 1930) to recover for the United States the civil penalty accruing 
to the United States under that section for the breach of a cease and 
desist order or a consent order, and to obtain a mandatory injunction 
incorporating the relief the Commission deems appropriate for 
enforcement of the cease and desist order or consent order; or
    (iii) Revoke the cease and desist order or consent order and direct 
that the articles concerned be excluded from entry into the United 
States.
    (5) Prior to effecting any modification, revocation, or exclusion 
under this section, the Commission shall consider the effect of such 
action upon the public health and welfare, competitive conditions in the 
U.S. economy, the production of like or directly competitive articles in 
the United States, and U.S. consumers.
    (6) In lieu of or in addition to taking the action provided for in 
paragraph (b)(1) of this section, the Commission may issue, pursuant to 
section 337(i) of the Tariff Act of 1930, an order providing that any 
article imported in violation of the provisions of section 337 of the 
Tariff Act of 1930 and an outstanding final exclusion order issued 
pursuant to section 337(d) of the Tariff Act of 1930 be seized and 
forfeited to the United States, if the following conditions are 
satisfied:
    (i) The owner, importer, or consignee of the article (or the agent 
of such person) previously attempted to import the article into the 
United States;
    (ii) The article previously was denied entry into the United States 
by reason of a final exclusion order; and
    (iii) Upon such previous denial of entry, the Secretary of the 
Treasury provided the owner, importer, or consignee of the article (or 
the agent of such person) with written notice of the aforesaid exclusion 
order and the fact that seizure and forfeiture would result from any 
further attempt to import the article into the United States.
    (c) Court enforcement. To obtain judicial enforcement of an 
exclusion order, a cease and desist order, a consent order, or a 
sanctions order, the Commission may initiate a civil action in the U.S. 
district court. In a civil action under section 337(f)(2) of the Tariff 
Act of 1930, the Commission may seek to recover for the United States 
the civil penalty accruing to the United States under that section for 
the breach of a

[[Page 186]]

cease and desist order or a consent order, and may ask the court to 
issue a mandatory injunction incorporating the relief the Commission 
deems appropriate for enforcement of the cease and desist order or 
consent order. The Commission may initiate a proceeding to obtain 
judicial enforcement without any other type of proceeding otherwise 
available under section 337 or this subpart or without prior notice to 
any person, except as required by the court in which the civil action is 
initiated.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38327, July 7, 2008]



Sec. 210.76  Modification or rescission of exclusion orders, cease and desist 

orders, and consent orders.

    (a) Petitions for modification or rescission of exclusion orders, 
cease and desist orders, and consent orders. (1) Whenever any person 
believes that changed conditions of fact or law, or the public interest, 
require that an exclusion order, cease and desist order, or consent 
order be modified or set aside, in whole or in part, such person may 
file with the Commission a petition requesting such relief. The 
Commission may also on its own initiative consider such action. The 
petition shall state the changes desired and the changed circumstances 
warranting such action, shall include materials and argument in support 
thereof, and shall be served on all parties to the investigation in 
which the exclusion order, cease and desist order, or consent order was 
issued. Any person may file an opposition to the petition within 10 days 
of service of the petition.
    (2) If the petitioner previously has been found by the Commission to 
be in violation of section 337 of the Tariff Act of 1930 and if its 
petition requests a Commission determination that the petitioner is no 
longer in violation of that section or requests modification or 
rescission of an order issued pursuant to section 337 (d), (e), (f), 
(g), or (i) of the Tariff Act of 1930, the burden of proof in any 
proceeding initiated in response to the petition pursuant to paragraph 
(b) of this section shall be on the petitioner. In accordance with 
section 337(k)(2) of the Tariff Act, relief may be granted by the 
Commission with respect to such petition on the basis of new evidence or 
evidence that could not have been presented at the prior proceeding or 
on grounds that would permit relief from a judgment or order under the 
Federal Rules of Civil Procedure.
    (b) Commission action upon receipt of petition. The Commission may 
thereafter institute a proceeding to modify or rescind the exclusion 
order, cease and desist order, or consent order by issuing a notice. The 
Commission may hold a public hearing and afford interested persons the 
opportunity to appear and be heard. After consideration of the petition, 
any responses thereto, and any information placed on the record at a 
public hearing or otherwise, the Commission shall take such action as it 
deems appropriate. The Commission may delegate any hearing under this 
section to the chief administrative law judge for designation of a 
presiding administrative law judge, who shall certify a recommended 
determination to the Commission.

[59 FR 39039, Aug. 1, 1994, as amended at 61 FR 43433, Aug. 23, 1996]



Sec. 210.77  Temporary emergency action.

    (a) Whenever the Commission determines, pending a formal enforcement 
proceeding under Sec. 210.75(b), that without immediate action a 
violation of an exclusion order, cease and desist order, or consent 
order will occur and that subsequent action by the Commission would not 
adequately repair substantial harm caused by such violation, the 
Commission may immediately and without hearing or notice modify or 
revoke such order and, if it is revoked, replace the order with an 
appropriate exclusion order.
    (b) Prior to taking any action under this section, the Commission 
shall consider the effect of such action upon the public health and 
welfare, competitive conditions in the U.S. economy, the production of 
like or directly competitive articles in the United States, and U.S. 
consumers. The Commission shall, if it has not already done so, 
institute a formal enforcement proceeding under Sec. 210.75(b) at the 
time of taking action

[[Page 187]]

under this section or as soon as possible thereafter, in order to give 
the alleged violator and other interested parties a full opportunity to 
present information and views regarding the continuation, modification, 
or revocation of Commission action taken under this section.



Sec. 210.78  Notice of enforcement action to Government agencies.

    (a) Consultation. The Commission may consult with or seek 
information from any Government agency when taking any action under this 
subpart.
    (b) Notification of Treasury. The Commission shall notify the 
Secretary of the Treasury of any action under this subpart that results 
in a permanent or temporary exclusion of articles from entry, or the 
revocation of an order to such effect, or the issuance of an order 
compelling seizure and forfeiture of imported articles.



Sec. 210.79  Advisory opinions.

    (a) Advisory opinions. Upon request of any person, the Commission 
may, upon such investigation as it deems necessary, issue an advisory 
opinion as to whether any person's proposed course of action or conduct 
would violate a Commission exclusion order, cease and desist order, or 
consent order. The Commission will consider whether the issuance of such 
an advisory opinion would facilitate the enforcement of section 337 of 
the Tariff Act of 1930, would be in the public interest, and would 
benefit consumers and competitive conditions in the United States, and 
whether the person has a compelling business need for the advice and has 
framed his request as fully and accurately as possible. Advisory opinion 
proceedings are not subject to sections 554, 555, 556, 557, and 702 of 
title 5 of the United States Code.
    (b) Revocation. The Commission may at any time reconsider any advice 
given under this section and, where the public interest requires, revoke 
its prior advice. In such event the person will be given notice of the 
Commission's intent to revoke as well as an opportunity to submit its 
views to the Commission. The Commission will not proceed against a 
person for violation of an exclusion order, cease and desist order, or 
consent order with respect to any action that was taken in good faith 
reliance upon the Commission's advice under this section, if all 
relevant facts were accurately presented to the Commission and such 
action was promptly discontinued upon notification of revocation of the 
Commission's advice.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38327, July 7, 2008]



        Sec. Appendix A to Part 210--Adjudication and Enforcement

----------------------------------------------------------------------------------------------------------------
                                                                                         Commission deadline for
                                         Petitions for review    Response to petitions    determining whether to
  Initial determination concerning:              due:                     due:              review the initial
                                                                                              determination:
----------------------------------------------------------------------------------------------------------------
1. Violation Sec.  210.42(a)(1).....  12 days from service of  8 days from service of   60 days from service of
                                        the initial              any petition.            the initial
                                        determination.                                    determination.
2. Forfeiture of respondent's bond     10 days from service of  5 business days from     45 days from service of
 Sec.  210.50(d)(3).                   the initial              service of any           the initial
                                        determination.           petition.                determination.
3. Forfeiture of complainant's         10 days from service of  5 business days from     45 days from service of
 temporary relief bond Sec.            the initial              service of any           the initial
 210.70(c).                             determination.           petition.                determination.
4. Summary initial determination that  10 days from service of  5 business days from     45 days from service of
 would terminate the investigation if   the initial              service of any           the initial
 it became the Commission's final       determination.           petition.                determination.
 determination Sec.  210.42(c).
5. Other matters Sec.  210.42(c)....  5 business days from     5 business days from     30 days from service of
                                        service of the initial   service of any           the initial
                                        determination.           petition.                determination on
                                                                                          private parties.
6. Formal enforcement proceedings      By order of the          By order of the          90 days from service of
 Sec.  210.75(b).                      Commission.              Commission.              the initial
                                                                                          determination on
                                                                                          private parties.
----------------------------------------------------------------------------------------------------------------


[[Page 188]]


[73 FR 38327, July 7, 2008]



PART 212_IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT--Table of Contents




                      Subpart A_General Provisions

Sec.
212.01 Purpose.
212.02 When the Act applies.
212.03 Proceedings covered.
212.04 Eligibility of applicants.
212.05 Standards for awards.
212.06 Allowable fees and expenses.
212.07 Rulemaking on maximum rates for attorney fees.

             Subpart B_Information Required From Applicants

212.10 Contents of application.
212.11 Net worth exhibit.
212.12 Documentation of fees and expenses.
212.13 When an application may be filed.

            Subpart C_Procedures for Considering Applications

212.20 Filing and service of documents.
212.21 Answer to application.
212.22 Reply.
212.23 Comments by other parties.
212.24 Settlement.
212.25 Further proceedings.
212.26 Determination.
212.27 Agency review.
212.28 Judicial review.
212.29 Payment of award.

    Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 
504(c)(1)).

    Source: 47 FR 9391, Mar. 5, 1982, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 212.01  Purpose.

    (a) The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the 
Act'' in this part), provides for the award of attorney fees and other 
expenses to eligible individuals and entities who are parties to certain 
administrative proceedings (called ``adversary adjudications'') before 
an agency. Under the Act an eligible party may receive an award when it 
prevails over an agency, unless the agency's position in the proceeding 
was substantially justified or special circumstances make an award 
unjust. The rules in this part describe the parties eligible for awards 
and the Commission proceedings that are covered. They also explain how 
to apply for awards, and the procedures and standards that the 
Commission will use to make them.



Sec. 212.02  When the Act applies.

    The Act applies to any adversary adjudication pending before the 
Commission at any time between October 1, 1981 and September 30, 1984. 
This includes proceedings begun before October 1, 1981 if final 
Commission action has not been taken before that date, and proceedings 
pending on September 30, 1984, regardless of when they were initiated or 
when final Commission action occurs.



Sec. 212.03  Proceedings covered.

    (a) The Act applies to adversary adjudications conducted by the 
Commission. These are adjudications under 5 U.S.C. 554 in which the 
position of the Commission is presented by an attorney or other 
representative who enters an appearance and participates in the 
proceeding. The Commission proceedings covered are those conducted under 
section 337 of the Tariff Act of 1930, 19 U.S.C. 1337. No award shall be 
made, however, for fees and expenses related to those portions of the 
proceedings conducted for the consideration of relief, the public 
interest, and bonding pursuant to subsections 337 (d), (e), and (f) of 
the Tariff Act of 1930 and 19 CFR 210.14.
    (b) An award may be made against the Commission only in connection 
with a proceeding brought by the Commission upon its own complaint.
    (c) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.



Sec. 212.04  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party to the adversary 
adjudication for which it seeks an award. The term party is defined in 5 
U.S.C. 551(3) and 19 CFR 210.04. The applicant must show that it meets 
all conditions of eligibility set out in this subpart and in subpart B.
    (b) The types of eligible applicants are as follows:

[[Page 189]]

    (1) An individual with a net worth of not more than $1 million;
    (2) The sole owner of an unincorporated business who has a net worth 
of not more than $5 million, including both personal and business 
interests, and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1144j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, or public or 
private organization with a net worth of not more than $5 million and 
not more than 500 employees.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
adversary adjudication was initiated.
    (d) An applicant who owns an unincorporated business will be 
considered to be an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis.
    (f) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant, or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
part, unless the presiding officer determines that such treatment would 
be unjust and contrary to the purposes of the Act in light of the actual 
relationship between the affiliated entities. In addition, the presiding 
officer may determine that financial relationships of the applicant 
other than those described in this paragraph constitute special 
circumstances that would make an award unjust.
    (g) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.



Sec. 212.05  Standards for awards.

    (a) The determination whether an applicant is a prevailing party 
shall be made on a case-by-case basis.
    (b) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with an adversary adjudication, or in a 
significant and discrete substantive portion of the adversary 
adjudication, unless the position of the Commission investigative 
attorney was substantially justified. The burden of proof that an award 
should not be made to an eligible prevailing applicant is on the 
Commission investigative attorney. An award may be avoided by showing 
that the position of the Commission was reasonable in law and fact.
    (c) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the adversary adjudication or if special 
circumstances make the award sought unjust. The burden of proof that an 
award should be reduced or denied for either of these reasons is on the 
Commission investigative attorney.



Sec. 212.06  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents and expert 
witnesses, even if the services were made available without charge or at 
a reduced rate to the applicant.
    (b) No award for the fee of an attorney or agent under these rules 
may exceed $75.00 per hour. No award to compensate an expert witness may 
exceed the highest rate at which the Commission pays expert witnesses. 
However, an award may include the reasonable expenses of the attorney, 
agent, or expert witness as a separate item if the

[[Page 190]]

attorney, agent or expert witness ordinarily charges clients separately 
for such expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent or expert witness, the presiding officer shall consider 
the following:
    (1) If the attorney, agent or expert witness is in private practice, 
his or her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the service;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent or expert witness ordinarily performs 
services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the adversary adjudication; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of a party may be 
awarded to the extent that the charge for the service does not exceed 
the prevailing rate for similar services and the study or other matter 
was necessary for preparation of the applicant's case.



Sec. 212.07  Rulemaking on maximum rates for attorney fees.

    (a) If warranted by an increase in the cost of living or by special 
circumstances (such as limited availability of attorneys qualified to 
handle certain types of proceedings), the Commission may adopt 
regulations providing that attorney fees may be awarded at a rate higher 
than $75 per hour in the proceedings covered by this part. The 
Commission will conduct any rulemaking proceedings for this purpose 
under the informal rulemaking procedures of the Administrative Procedure 
Act.
    (b) Any person may file with the Commission a petition for 
rulemaking to increase the maximum rate for attorney fees. The petition 
should identify the rate the petitioner believes the Commission should 
establish. It should also explain fully the reasons why the higher rate 
is warranted. The Commission will respond to the petition within 60 days 
after it is filed by initiating a rulemaking proceeding, denying the 
petition, or taking other appropriate action.



             Subpart B_Information Required From Applicants



Sec. 212.10  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the adversary adjudication for which an 
award is sought. The application shall show that the applicant has 
prevailed and identify the position of the Commission investigative 
attorney that the applicant alleges was not substantially justified. 
Unless the applicant is an individual, the application shall also state 
the number of employees of the applicant and describe briefly the type 
and purpose of its organization or business.
    (b) The application shall also include a statement that the 
applicant's net worth does not exceed $1 million (if an individual) or 
$5 million (for all other applicants, including their affiliates). 
However, an applicant may omit this statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a 
tax-exempt organization not required to obtain a ruling from the 
Internal Revenue Service on its exempt status, a statement that 
describes the basis for the applicant's belief that it qualifies under 
such section; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) The application shall state the amount of fees and expenses for 
which an award is sought.
    (d) The application may also include any other matters that the 
applicant wishes the Commission to consider in determining whether and 
in what amount an award should be made.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under oath or

[[Page 191]]

under penalty of perjury that the information provided in the 
application is true and correct.



Sec. 212.11  Net worth exhibit.

    (a) Each applicant except a qualified tax-exempt organization or 
cooperative association must provide with its application a detailed 
exhibit showing the net worth of the applicant and any affiliates (as 
defined in Sec. 212.04(f) of this part) when the proceeding was 
initiated. The exhibit may be in any form convenient to the applicant 
that provides full disclosure of the applicant's and its affiliates' 
assets and liabilities and is sufficient to determine whether the 
applicant qualifies under the standards in this part. The presiding 
officer may require an applicant to file additional information to 
determine its eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, an applicant that objects to public 
disclosure of information in any portion of the exhibit and believes 
there are legal grounds for withholding it from disclosure may submit 
that portion of the exhibit directly to the presiding officer in a 
sealed envelope labeled ``Confidential Financial Information,'' 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain in detail why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552(b)(1)-(9), why public disclosure of the 
information would adversely affect the applicant, and why disclosure is 
not required in the public interest. The material in question shall be 
served on the Commission investigative attorney or counsel representing 
another agency against which the applicant seeks an award, but need not 
be served on any other party to the proceeding. If the presiding officer 
finds that the information should not be withheld from disclosure, it 
shall be placed in the public record of the proceeding. Otherwise, any 
request to inspect or copy the exhibit shall be disposed of in 
accordance with the Commission's established procedures under the 
Freedom of Information Act, 19 CFR 201.17-201.21.



Sec. 212.12  Documentation of fees and expenses.

    The application shall be accompanied by full documentation of the 
fees and expenses, including the cost of any study, analysis, 
engineering report, test, project or similar matter, for which an award 
is sought. A separate itemized statement shall be submitted for each 
professional firm or individual whose services are covered by the 
application, showing the hours spent in connection with the proceeding 
by each individual, a description of the specific services performed, 
the rate at which each fee has been computed, any expenses for which 
reimbursement is sought, the total amount claimed, and the total amount 
paid or payable by the applicant or by any other person or entity for 
the services provided. The presiding officer may require the applicant 
to provide vouchers, receipts, or other substantiation for any expenses 
claimed.



Sec. 212.13  When an application may be filed.

    (a) An application may be filed whenever the applicant has prevailed 
in the adversary adjudication or in a significant and discrete 
substantive portion of the adversary adjudication, but in no case later 
than 30 days after the Commission's final disposition of the adversary 
adjudication.
    (b) If review or reconsideration is sought or taken of a 
determination as to which an applicant believes it has prevailed, 
proceedings for the award of fees shall be stayed pending final 
disposition of the underlying controversy.



            Subpart C_Procedures for Considering Applications



Sec. 212.20  Filing and service of documents.

    Any application for an award or other pleading or document related 
to an application shall be filed and served on all parties to the 
adversary adjudication in the same manner as other pleadings in the 
adversary adjudication, except as provided in Sec. 212.11(b) for 
confidential financial information.

[[Page 192]]



Sec. 212.21  Answer to application.

    (a) Within 30 days after service of an application, the Commission 
investigative attorney shall file an answer to the application.
    (b) If the applicant and the Commission investigative attorney 
believe that the issues in the fee application can be settled, they may 
jointly file a statement of their intent to negotiate a settlement. The 
filing of this statement shall extend the time for filing an answer for 
an additional 30 days, and further extensions may be granted by the 
presiding officer upon request by the applicant and the Commission 
investigative attorney.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on in support of the position of 
the Commission. If the answer is based on any alleged facts not already 
in the record of the adversary adjudication, the Commission 
investigative attorney shall include with the answer supporting 
affidavits or a request for further proceedings under Sec. 212.25.



Sec. 212.22  Reply.

    Within 15 days after service of an answer, the applicant may file a 
reply. If the reply is based on any alleged facts not already in the 
record of the adversary adjudication, the applicant shall include with 
the reply either supporting affidavits or a request for further 
proceedings under Sec. 212.25.



Sec. 212.23  Comments by other parties.

    Any party to the adversary adjudication other than the applicant and 
the Commission investigative attorney may file comments on an 
application within 30 days after it is served or on an answer within 15 
days after it is served. A commenting party may not participate further 
in proceedings on the application unless the presiding officer 
determines that the public interest requires such participation in order 
to permit full exploration of matters raised in the comments.



Sec. 212.24  Settlement.

    The applicant and the Commission may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying adversary adjudication, 
or after the underlying adversary adjudication has been concluded. If a 
prevailing party and the Commission investigative attorney agree on a 
proposed settlement of an award before an application has been filed, 
the application shall be filed with the proposed settlement.



Sec. 212.25  Further proceedings.

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the applicant 
or the Commission investigative attorney, or on his or her own 
initiative, the presiding officer may in his or her discretion order 
further proceedings, such as an informal conference, oral argument, 
additional written submissions or an evidentiary hearing. Such further 
proceedings shall be held only when necessary for full and fair 
resolution of the issues arising from the application, and shall be 
conducted as promptly as possible.
    (b) A request that the presiding officer order further proceedings 
under this section shall specifically identify the information sought or 
the disputed issues and shall explain why the additional proceedings are 
necessary to resolve the issues.



Sec. 212.26  Determination.

    The presiding officer shall issue a recommended determination on the 
application within 90 days after completion of proceedings on the 
application. The determination shall include written findings and 
conclusions on the applicant's eligibility and status as prevailing 
party, and an explanation of the reasons for any difference between the 
amount requested and the amount awarded. The determination shall also 
include, if at issue, findings on whether the position of the Commission 
investigative attorney was substantially justified, whether the 
applicant unduly protracted the proceedings, or whether special 
circumstances make an award unjust.



Sec. 212.27  Agency review.

    Except as otherwise authorized by the presiding officer, the parties 
shall

[[Page 193]]

be allowed ten (10) days from the date of service of the recommended 
determination to file exceptions to the recommended determination and 
alternative findings of fact and conclusions of law with the Commission. 
Upon receipt of the recommended determination, the Commission shall 
review the same and issue a final determination on the application or 
remand the application to the presiding officer for further proceedings.



Sec. 212.28  Judicial review.

    Judicial review of final Commission determinations on awards may be 
sought as provided in 5 U.S.C. 504(c)(2).



Sec. 212.29  Payment of award.

    An applicant seeking payment of an award shall submit to the Office 
of Finance of the Commission a copy of the Commission's final 
determination granting the award, accompanied by a statement that the 
applicant will not seek review of the decision in the United States 
courts. The address for submission to the Commission is: United States 
International Trade Commission, Office of Finance, 500 E Street SW., 
Washington, DC 20436. The Commission will pay the amount to the 
applicant within 60 days, unless judicial review of the award or of the 
underlying determination of the adversary adjudication has been sought 
by the applicant or any other party to the proceeding.

[68 FR 32979, June 3, 2003]



PART 213_TRADE REMEDY ASSISTANCE--Table of Contents




Sec.
213.1 Purpose and applicability of part.
213.2 Definitions.
213.3 Determination of small business eligibility.
213.4 Disclosure of receipt of technical assistance.
213.5 Access to Commission resources.
213.6 Information concerning assistance.

    Authority: Sec. 339 of the Tariff Act of 1930 (19 U.S.C. 1339), as 
added by sec. 221, Trade and Tariff Act of 1984 (Pub. L. 98-573, 
approved Oct. 30, 1984; 90 Stat. 2989), and as amended by sec. 1614, 
Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418, approved 
Aug. 23, 1988; 102 Stat. 110); sec. 335, Tariff Act of 1930 (72 Stat 
680; 19 U.S.C. 1335).

    Source: 54 FR 33883, Aug. 17, 1989, unless otherwise noted.



Sec. 213.1  Purpose and applicability of part.

    (a) Section 339 of the Tariff Act of 1930, as amended, establishes 
in the Commission an office known as the Trade Remedy Assistance Office 
and directs the Commission to provide general information to the public, 
upon request, and, to the extent feasible, assistance and advice to 
interested parties concerning the remedies and benefits available under 
the trade laws identified in Sec. 213.2(b) and the procedures to be 
followed and appropriate filing dates in investigations under the trade 
laws. In coordination with other agencies administering the trade laws, 
the Trade Remedy Assistance Office also shall provide technical 
assistance, as defined in Sec. 213.2(d), to eligible small businesses 
seeking to obtain the remedies and benefits available under the trade 
laws.
    (b) The rules in this part govern the establishment of the Trade 
Remedy Assistance Office, its function, small business eligibility for 
technical assistance and procedures for obtaining such assistance. 
Members of the public seeking general information from the Trade Remedy 
Assistance Office are not subject to the application procedures set 
forth in this part.



Sec. 213.2  Definitions.

    (a) Office. The Trade Remedy Assistance Office (hereinafter Office) 
provides general information to the public, upon request, and, to the 
extent feasible, assistance and advice to interested parties concerning 
the remedies and benefits available under the trade laws identified in 
Sec. 213.2(b) and the procedures to be followed and appropriate filing 
dates in investigations under those trade laws. In coordination with 
other agencies responsible for administering the trade laws listed in 
Sec. 213.2(b), the Office also provides technical assistance, as 
defined in Sec. 213.2(d) to eligible small businesses that seek to 
obtain remedies and benefits under the trade laws. The Office's address 
is Trade Remedy Assistance Office, U.S. International Trade Commission, 
500 E Street SW., Washington, DC 20436.

[[Page 194]]

    (b) Trade laws. The trade laws (with respect to which general 
information and technical assistance are available) are defined as:
    (1) Chapter 1 of title II of the Trade Act of 1974 (19 U.S.C. 2251 
et seq., relating to injury caused by import competition);
    (2) Chapters 2 and 3 of such title II (relating to adjustment 
assistance for workers and firms);
    (3) Chapter 1 of title III of the Trade Act of 1974 (19 U.S.C. 2411 
et seq., relating to relief from foreign import restrictions and export 
subsidies);
    (4) Title VII of the Tariff Act of 1930 (19 U.S.C. 1671 et seq., 
relating to the imposition of countervailing duties and antidumping 
duties);
    (5) Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. 1862, 
relating to the safeguarding of national security);
    (6) Section 337 of the Tariff Act of 1930 (19 U.S.C. 1337, relating 
to unfair practices in import trade); and
    (7) Section 406 of the Trade Act of 1974 (19 U.S.C. 2436, relating 
to market disruption).
    (c) Administering agencies. Administering agency refers to the 
agency or agencies responsible for administering a particular trade law. 
The trade laws relating to injury caused by import competition, unfair 
practices in import trade and market disruption are administered by the 
Commission. The trade laws relating to countervailing and antidumping 
duties are jointly administered by the Commission and the Department of 
Commerce. The trade laws relating to adjustment assistance for firms and 
safeguarding national security are administered by the Department of 
Commerce. The trade law relating to adjustment assistance for workers is 
administered by the Department of Labor. The trade law relating to 
relief from foreign import restrictions and export subsidies is 
administered by the United States Trade Representative.
    (d) Technical Assistance. Technical assistance is informal advice 
and assistance, including informal legal advice, intended to enable 
eligible small businesses to determine the appropriateness of pursuing 
particular trade remedies, to prepare petitions and complaints (other 
than those which are frivolous in the opinion of the agency) and to seek 
to obtain the remedies and benefits available under the trade laws 
identified in Sec. 213.2(b). Technical assistance is available to 
eligible small businesses at any time until the completion of 
administrative review or of an appeal to the administering agency 
regarding proceedings under the trade laws listed in Sec. 213.2(b). 
Technical assistance does not include legal representation of an 
eligible small business or advocacy on its behalf and receipt of 
technical assistance does not ensure that the recipient will prevail in 
any trade remedy proceeding. The Office provides such technical 
assistance independently of other Commission staff but may consult with 
other staff as appropriate.
    (e) Applicant. An applicant is an individual, partnership, 
corporation, joint venture, trade or other association, cooperative, 
group of workers, or certified or recognized union, or other entity that 
applies for techincal assistance under this part.
    (f) Eligible small business. An eligible small business is an 
applicant that the Office has determined to be entitled to technical 
assistance in accordance with the SBA size standards and the procedures 
set forth in this part.
    (g) SBA size standards. SBA size standards are the small business 
size standards of the Small Business Administration set forth in 13 CFR 
121.2. The SBA size standards categorize business concerns according to 
the Standard Industrial Classification (``SIC'') code of the Bureau of 
the Census and base the size determination upon the number of employees 
or annual receipts of the business concern in the appropriate SIC 
category.



Sec. 213.3  Determination of small business eligibility.

    (a) Application for technical assistance from small businesses. An 
applicant for technical assistance must certify that it qualifies as a 
small business under the appropriate size standard(s) and that it is an 
independently owned and operated company. An application for technical 
assistance is available from the Office. The application must be

[[Page 195]]

signed under oath by an officer or principal of the applicant. The 
completed application should be submitted to the Office at the address 
set forth in Sec. 213.2(a).
    (b) Application for technical assistance from joint applicants, 
trade associations and unions. If several businesses jointly or 
simultaneously from the same industry apply for technical assistance, 
each business must meet the appropriate SBA size standard(s) and so 
certify. If a trade association applies for technical assistance, an 
officer of the trade association must certify that eighty (80) percent 
of the trade association's members are companies that meet the 
appropriate size standard(s) and provide a listing of members of the 
association. If a union applies for technical assistance, an officer of 
the union must certify that the union has less than ten thousand 
(10,000) members within the industry for which trade relief is being 
sought. Applications for trade associations or for unions to request 
technical assistance are available from the Office. Applications must be 
signed under oath by an officer of the association or union and 
completed applications should be submitted to the Office as set forth in 
Sec. 213.2(a).
    (c) Determination of eligibility and notification of determination. 
The Office shall determine whether the applicant is eligible for 
technical assistance and notify the applicant of the determination 
within ten (10) days of receipt of a properly completed application. 
Pursuant to 19 U.S.C. 1339(c)(1), the Office's determination of 
eligibility is not reviewable by any other agency or by any court.
    (d) Notification to administering agencies. When an applicant seeks 
technical assistance on matters involving the trade laws, and the Office 
determines that the applicant is eligible for technical assistance, the 
Office shall:
    (1) Promptly notify the appropriate administering agency or agencies 
of the Office's determination that the applicant is eligible to receive 
technical assistance; and
    (2) Consult with the administering agency or agencies as to the 
provision of technical assistance to that applicant.



Sec. 213.4  Disclosure of receipt of technical assistance.

    An eligible small business that has received technical assistance 
from the Office must state that it has received technical assistance 
from the Trade Remedy Assistance Office in any resulting petition, 
complaint or application which is filed with the Commission or any other 
agency which administers the trade law under which remedies or benefits 
are sought.



Sec. 213.5  Access to Commission resources.

    Commission resources, in addition to the Office's resources, are 
available to an eligible small business to the same extent as those 
resources are available to members of the general public. No special 
rights of access to Commission resources shall be accorded to an 
eligible small business.



Sec. 213.6  Information concerning assistance.

    Any person may contact the Office with questions regarding 
eligibility for technical assistance. Summaries of the trade laws and 
the SBA size standards can be obtained by writing to the Trade Remedy 
Assistance Office, U.S. International Trade Commission, 500 E Street 
SW., Washington, DC 20436.

[[Page 197]]



 CHAPTER III--INTERNATIONAL TRADE ADMINISTRATION, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------
Part                                                                Page
351             Antidumping and countervailing duties.......         199
354             Procedures for imposing sanctions for 
                    violation of an antidumping or 
                    countervailing duty administrative 
                    protective order........................         303
356             Procedures and rules for implementing 
                    Article 1904 of the North American Free 
                    Trade Agreement.........................         312
357             Short supply procedures.....................         332
358             Supplies for use in emergency relief work...         337
360             Steel import monitoring and analysis system.         339
361             Mexican cement import licensing system......         342

[[Page 199]]



PART 351_ANTIDUMPING AND COUNTERVAILING DUTIES--Table of Contents




                     Subpart A_Scope and Definitions

Sec.
351.101 Scope.
351.102 Definitions.
351.103 Central Records Unit and Administrative Protective Order Unit.
351.104 Record of proceedings.
351.105 Public, business proprietary, privileged, and classified 
          information.
351.106 De minimis net countervailable subsidies and weighted-average 
          dumping margins disregarded.
351.107 Cash deposit rates for nonproducing exporters; rates in 
          antidumping proceedings involving a nonmarket economy country.

        Subpart B_Antidumping and Countervailing Duty Procedures

351.201 Self-initiation.
351.202 Petition requirements.
351.203 Determination of sufficiency of petition.
351.204 Time periods and persons examined; voluntary respondents; 
          exclusions.
351.205 Preliminary determination.
351.206 Critical circumstances.
351.207 Termination of investigation.
351.208 Suspension of investigation.
351.209 Violation of suspension agreement.
351.210 Final determination.
351.211 Antidumping order and countervailing duty order.
351.212 Assessment of antidumping and countervailing duties; provisional 
          measures deposit cap; interest on certain overpayments and 
          underpayments
351.213 Administrative review of orders and suspension agreements under 
          section 751(a)(1) of the Act.
351.214 New shipper reviews under section 751(a)(2)(B) of the Act.
351.215 Expedited antidumping review and security in lieu of estimated 
          duty under section 736(c) of the Act.
351.216 Changed circumstances review under section 751(b) of the Act.
351.217 Reviews to implement results of subsidies enforcement proceeding 
          under section 751(g) of the Act.
351.218 Sunset reviews under section 751(c) of the Act.
351.219 Reviews of countervailing duty orders in connection with an 
          investigation under section 753 of the Act.
351.220 Countervailing duty review at the direction of the President 
          under section 762 of the Act.
351.221 Review procedures.
351.222 Revocation of orders; termination of suspended investigations.
351.223 Procedures for initiation of downstream product monitoring.
351.224 Disclosure of calculations and procedures for the correction of 
          ministerial errors.
351.225 Scope rulings.

                   Subpart C_Information and Argument

351.301 Time limits for submission of factual information.
351.302 Extension of time limits; return of untimely filed or 
          unsolicited material.
351.303 Filing, format, translation, service, and certification of 
          documents.
351.304 Establishing business proprietary treatment of information.
351.305 Access to business proprietary information.
351.306 Use of business proprietary information.
351.307 Verification of information.
351.308 Determinations on the basis of the facts available.
351.309 Written argument.
351.310 Hearings.
351.311 Countervailable subsidy practice discovered during investigation 
          or review.
351.312 Industrial users and consumer organizations.

 Subpart D_Calculation of Export Price, Constructed Export Price, Fair 
                         Value, and Normal Value

351.401 In general.
351.402 Calculation of export price and constructed export price; 
          reimbursement of antidumping and countervailing duties.
351.403 Sales used in calculating normal value; transactions between 
          affiliated parties.
351.404 Selection of the market to be used as the basis for normal 
          value.
351.405 Calculation of normal value based on constructed value.
351.406 Calculation of normal value if sales are made at less than cost 
          of production.
351.407 Calculation of constructed value and cost of production.
351.408 Calculation of normal value of merchandise from nonmarket 
          economy countries.
351.409 Differences in quantities.
351.410 Differences in circumstances of sale.
351.411 Differences in physical characteristics.
351.412 Levels of trade; adjustment for difference in level of trade; 
          constructed export price offset.
351.413 Disregarding insignificant adjustments.
351.414 Comparison of normal value with export price (constructed export 
          price).
351.415 Conversion of currency.

[[Page 200]]

  Subpart E_Identification and Measurement of Countervailable Subsidies

351.501 Scope.
351.502 Specificity of domestic subsidies.
351.503 Benefit.
351.504 Grants.
351.505 Loans.
351.506 Loan guarantees.
351.507 Equity.
351.508 Debt forgiveness.
351.509 Direct taxes.
351.510 Indirect taxes and import charges (other than export programs).
351.511 Provision of goods or services.
351.512 Purchase of goods. [Reserved]
351.513 Worker-related subsidies.
351.514 Export subsidies.
351.515 Internal transport and freight charges for export shipments.
351.516 Price preferences for inputs used in the production of goods for 
          export.
351.517 Exemption or remission upon export of indirect taxes.
351.518 Exemption, remission, or deferral upon export of prior-stage 
          cumulative indirect taxes.
351.519 Remission or drawback of import charges upon export.
351.520 Export insurance.
351.521 Import substitution subsidies. [Reserved]
351.522 Green light and green box subsidies.
351.523 Upstream subsidies.
351.524 Allocation of benefit to a particular time period.
351.525 Calculation of ad valorem subsidy rate and attribution of 
          subsidy to a product.
351.526 Program-wide changes.
351.527 Transnational subsidies.

Subpart F_Subsidy Determinations Regarding Cheese Subject to an In-Quota 
                              Rate of Duty

351.601 Annual list and quarterly update of subsidies.
351.602 Determination upon request.
351.603 Complaint of price-undercutting by subsidized imports.
351.604 Access to information.

                      Subpart G_Applicability Dates

351.701 Applicability dates.
351.702 Applicability dates for countervailing duty regulations.

Annex I to Part 351--Deadlines for Parties in Countervailing 
          Investigations
Annex II to Part 351--Deadlines for Parties in Countervailing 
          Administrative Reviews
Annex III to Part 351--Deadlines for Parties in Antidumping 
          Investigations
Annex IV to Part 351--Deadlines for Parties in Antidumping 
          Administrative Reviews
Annex V to Part 351--Comparison of Prior and New Regulations
Annex VI to Part 351--Countervailing Investigations Timeline
Annex VII to Part 351--Antidumping Investigations Timeline
Annex VIII-A to Part 351--Schedule for 90-Day Sunset Reviews
Annex VIII-B to Part 351--Schedule for Expedited Sunset Reviews
Annex VIII-C to Part 351--Schedule for Full Sunset Reviews

    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.

    Source: 62 FR 27379, May 19, 1997, unless otherwise noted.



                     Subpart A_Scope and Definitions



Sec. 351.101  Scope.

    (a) In general. This part contains procedures and rules applicable 
to antidumping and countervailing duty proceedings under title VII of 
the Act (19 U.S.C. 1671 et seq.), and also determinations regarding 
cheese subject to an in-quota rate of duty under section 702 of the 
Trade Agreements Act of 1979 (19 U.S.C. 1202 note). This part reflects 
statutory amendments made by titles I, II, and IV of the Uruguay Round 
Agreements Act, Pub. L. 103-465, which, in turn, implement into United 
States law the provisions of the following agreements annexed to the 
Agreement Establishing the World Trade Organization: Agreement on 
Implementation of Article VI of the General Agreement on Tariffs and 
Trade 1994; Agreement on Subsidies and Countervailing Measures; and 
Agreement on Agriculture.
    (b) Countervailing duty investigations involving imports not 
entitled to a material injury determination. Under section 701(c) of the 
Act, certain provisions of the Act do not apply to countervailing duty 
proceedings involving imports from a country that is not a Subsidies 
Agreement country and is not entitled to a material injury determination 
by the Commission. Accordingly, certain provisions of this part 
referring to the Commission may not apply to such proceedings.
    (c) Application to governmental importations. To the extent 
authorized by

[[Page 201]]

section 771(20) of the Act, merchandise imported by, or for the use of, 
a department or agency of the United States Government is subject to the 
imposition of countervailing duties or antidumping duties under this 
part.



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.
    (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.

[[Page 202]]

    (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

[[Page 203]]

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 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.

[[Page 204]]

    (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.

[73 FR 3640, Jan. 22, 2008]



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

[[Page 205]]

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 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.

[73 FR 3642, Jan. 22, 2008]



Sec. 351.104  Record of proceedings.

    (a) Official record--(1) In general. The Secretary will maintain in 
the Central Records Unit an official record of each antidumping and 
countervailing duty proceeding. The Secretary will include in the 
official record all factual information, written argument, or other 
material developed by, presented to, or obtained by the Secretary during 
the course of a proceeding that pertains to the proceeding. The official 
record will include government memoranda pertaining to the proceeding, 
memoranda of ex parte meetings, determinations, notices published in the 
Federal Register, and transcripts of hearings. The official record will 
contain material that is public, business proprietary, privileged, and 
classified. For purposes of section 516A(b)(2) of the Act, the record is 
the official record of each segment of the proceeding.
    (2) Material returned. (i) The Secretary, in making any 
determination under this part, will not use factual information, written 
argument, or other material that the Secretary returns to the submitter.
    (ii) The official record will include a copy of a returned document, 
solely for purposes of establishing and documenting the basis for 
returning the document to the submitter, if the document was returned 
because:
    (A) The document, although otherwise timely, contains untimely filed 
new factual information (see Sec. 351.301(b));
    (B) The submitter made a nonconforming request for business 
proprietary treatment of factual information (see Sec. 351.304);
    (C) The Secretary denied a request for business proprietary 
treatment of factual information (see Sec. 351.304);
    (D) The submitter is unwilling to permit the disclosure of business 
proprietary information under APO (see Sec. 351.304).
    (iii) In no case will the official record include any document that 
the Secretary returns to the submitter as untimely filed, or any 
unsolicited questionnaire response unless the response is a voluntary 
response accepted under Sec. 351.204(d) (see Sec. 351.302(d)).
    (b) Public record. The Secretary will maintain in the Central 
Records Unit a public record of each proceeding. The record will consist 
of all material contained in the official record (see paragraph (a) of 
this section) that the Secretary decides is public information under 
Sec. 351.105(b), government memoranda or portions of memoranda that the 
Secretary decides may be disclosed to the general public, and public 
versions of all determinations, notices, and transcripts. The public 
record will be available to the public for inspection and copying in the 
Central Records Unit (see Sec. 351.103). The Secretary will charge an 
appropriate fee for providing copies of documents.
    (c) Protection of records. Unless ordered by the Secretary or 
required by law, no record or portion of a record will be removed from 
the Department.



Sec. 351.105  Public, business proprietary, privileged, and classified 

information.

    (a) Introduction. There are four categories of information in an 
antidumping or countervailing duty proceeding: public, business 
proprietary, privileged, and classified. In general, public information 
is information that may be made available to the public, whereas 
business proprietary information may be disclosed (if at all) only to 
authorized applicants under an APO. Privileged and classified 
information may not be disclosed at all, even under an APO. This section 
describes the four categories of information.

[[Page 206]]

    (b) Public information. The Secretary normally will consider the 
following to be public information:
    (1) Factual information of a type that has been published or 
otherwise made available to the public by the person submitting it;
    (2) Factual information that is not designated as business 
proprietary by the person submitting it;
    (3) Factual information that, although designated as business 
proprietary by the person submitting it, is in a form that cannot be 
associated with or otherwise used to identify activities of a particular 
person or that the Secretary determines is not properly designated as 
business proprietary;
    (4) Publicly available laws, regulations, decrees, orders, and other 
official documents of a country, including English translations; and
    (5) Written argument relating to the proceeding that is not 
designated as business proprietary.
    (c) Business proprietary information. The Secretary normally will 
consider the following factual information to be business proprietary 
information, if so designated by the submitter:
    (1) Business or trade secrets concerning the nature of a product or 
production process;
    (2) Production costs (but not the identity of the production 
components unless a particular component is a trade secret);
    (3) Distribution costs (but not channels of distribution);
    (4) Terms of sale (but not terms of sale offered to the public);
    (5) Prices of individual sales, likely sales, or other offers (but 
not components of prices, such as transportation, if based on published 
schedules, dates of sale, product descriptions (other than business or 
trade secrets described in paragraph (c)(1) of this section), or order 
numbers);
    (6) Names of particular customers, distributors, or suppliers (but 
not destination of sale or designation of type of customer, distributor, 
or supplier, unless the destination or designation would reveal the 
name);
    (7) In an antidumping proceeding, the exact amount of the dumping 
margin on individual sales;
    (8) In a countervailing duty proceeding, the exact amount of the 
benefit applied for or received by a person from each of the programs 
under investigation or review (but not descriptions of the operations of 
the programs, or the amount if included in official public statements or 
documents or publications, or the ad valorem countervailable subsidy 
rate calculated for each person under a program);
    (9) The names of particular persons from whom business proprietary 
information was obtained;
    (10) The position of a domestic producer or workers regarding a 
petition; and
    (11) Any other specific business information the release of which to 
the public would cause substantial harm to the competitive position of 
the submitter.
    (d) Privileged information. The Secretary will consider information 
privileged if, based on principles of law concerning privileged 
information, the Secretary decides that the information should not be 
released to the public or to parties to the proceeding. Privileged 
information is exempt from disclosure to the public or to 
representatives of interested parties.
    (e) Classified information. Classified information is information 
that is classified under Executive Order No. 12356 of April 2, 1982 (47 
FR 14874 and 15557, 3 CFR 1982 Comp. p. 166) or successor executive 
order, if applicable. Classified information is exempt from disclosure 
to the public or to representatives of interested parties.



Sec. 351.106  De minimis net countervailable subsidies and weighted-average 

dumping margins disregarded.

    (a) Introduction. Prior to the enactment of the URAA, the Department 
had a well-established and judicially sanctioned practice of 
disregarding net countervailable subsidies or weighted-average dumping 
margins that were de minimis. The URAA codified in the Act the 
particular de minimis standards to be used in antidumping and 
countervailing duty investigations. This section discussed the 
application of the de minimis standards in antidumping or countervailing 
duty proceedings.

[[Page 207]]

    (b) Investigations--(1) In general. In making a preliminary or final 
antidumping or countervailing duty determination in an investigation 
(see sections 703(b), 733(b), 705(a), and 735(a) of the Act), the 
Secretary will apply the de minimis standard set forth in section 
703(b)(4) or section 733(b)(3) of the Act (whichever is applicable).
    (2) Transition rule. (i) If:
    (A) The Secretary resumes an investigation that has been suspended 
(see section 704(i)(1)(B) or section 734(i)(1)(B) of the Act); and
    (B) The investigation was initiated before January 1, 1995, then
    (ii) The Secretary will apply the de minimis standard in effect at 
the time that the investigation was initiated.
    (c) Reviews and other determinations--(1) In general. In making any 
determination other than a preliminary or final antidumping or 
countervailing duty determination in an investigation (see paragraph (b) 
of this section), the Secretary will treat as de minimis any weighted-
average dumping margin or countervailable subsidy rate that is less than 
0.5 percent ad valorem, or the equivalent specific rate.
    (2) Assessment of antidumping duties. The Secretary will instruct 
the Customs Service to liquidate without regard to antidumping duties 
all entries of subject merchandise during the relevant period of review 
made by any person for which the Secretary calculates an assessment rate 
under Sec. 351.212(b)(1) that is less than 0.5 percent ad valorem, or 
the equivalent specific rate.



Sec. 351.107  Cash deposit rates for nonproducing exporters; rates in 

antidumping proceedings involving a nonmarket economy country.

    (a) Introduction. This section deals with the establishment of cash 
deposit rates in situations where the exporter is not the producer of 
subject merchandise, the selection of the appropriate cash deposit rate 
in situations where entry documents do not indicate the producer of 
subject merchandise, and the calculation of dumping margins in 
antidumping proceedings involving imports from a nonmarket economy 
country.
    (b) Cash deposit rates for nonproducing exporters--(1) Use of 
combination rates--(i) In general. In the case of subject merchandise 
that is exported to the United States by a company that is not the 
producer of the merchandise, the Secretary may establish a 
``combination'' cash deposit rate for each combination of the exporter 
and its supplying producer(s).
    (ii) Example. A nonproducing exporter (Exporter A) exports to the 
United States subject merchandise produced by Producers X, Y, and Z. In 
such a situation, the Secretary may establish cash deposit rates for 
Exporter A/Producer X, Exporter A/Producer Y, and Exporter A/Producer Z.
    (2) New supplier. In the case of subject merchandise that is 
exported to the United States by a company that is not the producer of 
the merchandise, if the Secretary has not established previously a 
combination cash deposit rate under paragraph (b)(1)(i) of this section 
for the exporter and producer in question or a noncombination rate for 
the exporter in question, the Secretary will apply the cash deposit rate 
established for the producer. If the Secretary has not previously 
established a cash deposit rate for the producer, the Secretary will 
apply the ``all-others rate'' described in section 705(c)(5) or section 
735(c)(5) of the Act, as the case may be.
    (c) Producer not identified--(1) In general. In situations where 
entry documents do not identify the producer of subject merchandise, if 
the Secretary has not established previously a noncombination rate for 
the exporter, the Secretary may instruct the Customs Service to apply as 
the cash deposit rate the higher of:
    (i) the highest of any combination cash deposit rate established for 
the exporter under paragraph (b)(1)(i) of this section;
    (ii) the highest cash deposit rate established for any producer 
other than a producer for which the Secretary established a combination 
rate involving the exporter in question under paragraph (b)(1)(i) of 
this section; or
    (iii) the ``all-others rate'' described in section 705(c)(5) or 
section 735(c)(5) of the Act, as the case may be.
    (2) [Reserved]

[[Page 208]]

    (d) Rates in antidumping proceedings involving nonmarket economy 
countries. In an antidumping proceeding involving imports from a 
nonmarket economy country, ``rates'' may consist of a single dumping 
margin applicable to all exporters and producers.



        Subpart B_Antidumping and Countervailing Duty Procedures



Sec. 351.201  Self-initiation.

    (a) Introduction. Antidumping and countervailing duty investigations 
may be initiated as the result of a petition filed by a domestic 
interested party or at the Secretary's own initiative. This section 
contains rules regarding the actions the Secretary will take when the 
Secretary self-initiates an investigation.
    (b) In general. When the Secretary self-initiates an investigation 
under section 702(a) or section 732(a) of the Act, the Secretary will 
publish in the Federal Register notice of ``Initiation of Antidumping 
(Countervailing Duty) Investigation.'' In addition, the Secretary will 
notify the Commission at the time of initiation of the investigation, 
and will make available to employees of the Commission directly involved 
in the proceeding the information upon which the Secretary based the 
initiation and which the Commission may consider relevant to its injury 
determination.
    (c) Persistent dumping monitoring. To the extent practicable, the 
Secretary will expedite any antidumping investigation initiated as the 
result of a monitoring program established under section 732(a)(2) of 
the Act.



Sec. 351.202  Petition requirements.

    (a) Introduction. The Secretary normally initiates antidumping and 
countervailing duty investigations based on petitions filed by a 
domestic interested party. This section contains rules concerning the 
contents of a petition, filing requirements, notification of foreign 
governments, pre-initiation communications with the Secretary, and 
assistance to small businesses in preparing petitions. Petitioners are 
also advised to refer to the Commission's regulations concerning the 
contents of petitions, currently 19 CFR 207.11.
    (b) Contents of petition. A petition requesting the imposition of 
antidumping or countervailing duties must contain the following, to the 
extent reasonably available to the petitioner:
    (1) The name, address, and telephone number of the petitioner and 
any person the petitioner represents;
    (2) The identity of the industry on behalf of which the petitioner 
is filing, including the names, addresses, and telephone numbers of all 
other known persons in the industry;
    (3) Information relating to the degree of industry support for the 
petition, including:
    (i) The total volume and value of U.S. production of the domestic 
like product; and
    (ii) The volume and value of the domestic like product produced by 
the petitioner and each domestic producer identified;
    (4) A statement indicating whether the petitioner has filed for 
relief from imports of the subject merchandise under section 337 of the 
Act (19 U.S.C. 1337, 1671a), sections 201 or 301 of the Trade Act of 
1974 (19 U.S.C. 2251 or 2411), or section 232 of the Trade Expansion Act 
of 1962 (19 U.S.C. 1862);
    (5) A detailed description of the subject merchandise that defines 
the requested scope of the investigation, including the technical 
characteristics and uses of the merchandise and its current U.S. tariff 
classification number;
    (6) The name of the country in which the subject merchandise is 
manufactured or produced and, if the merchandise is imported from a 
country other than the country of manufacture or production, the name of 
any intermediate country from which the merchandise is imported;
    (7) (i) In the case of an antidumping proceeding:
    (A) The names and addresses of each person the petitioner believes 
sells the subject merchandise at less than fair value and the proportion 
of total exports to the United States that each person accounted for 
during the most recent 12-month period (if numerous, provide information 
at least for persons that, based on publicly available information, 
individually accounted for two percent or more of the exports);

[[Page 209]]

    (B) All factual information (particularly documentary evidence) 
relevant to the calculation of the export price and the constructed 
export price of the subject merchandise and the normal value of the 
foreign like product (if unable to furnish information on foreign sales 
or costs, provide information on production costs in the United States, 
adjusted to reflect production costs in the country of production of the 
subject merchandise);
    (C) If the merchandise is from a country that the Secretary has 
found to be a nonmarket economy country, factual information relevant to 
the calculation of normal value, using a method described in Sec. 
351.408; or
    (ii) In the case of a countervailing duty proceeding:
    (A) The names and addresses of each person the petitioner believes 
benefits from a countervailable subsidy and exports the subject 
merchandise to the United States and the proportion of total exports to 
the United States that each person accounted for during the most recent 
12-month period (if numerous, provide information at least for persons 
that, based on publicly available information, individually accounted 
for two percent or more of the exports);
    (B) The alleged countervailable subsidy and factual information 
(particularly documentary evidence) relevant to the alleged 
countervailable subsidy, including any law, regulation, or decree under 
which it is provided, the manner in which it is paid, and the value of 
the subsidy to exporters or producers of the subject merchandise;
    (C) If the petitioner alleges an upstream subsidy under section 771A 
of the Act, factual information regarding:
    (1) Countervailable subsidies, other than an export subsidy, that an 
authority of the affected country provides to the upstream supplier;
    (2) The competitive benefit the countervailable subsidies bestow on 
the subject merchandise; and
    (3) The significant effect the countervailable subsidies have on the 
cost of producing the subject merchandise;
    (8) The volume and value of the subject merchandise imported during 
the most recent two-year period and any other recent period that the 
petitioner believes to be more representative or, if the subject 
merchandise was not imported during the two-year period, information as 
to the likelihood of its sale for importation;
    (9) The name, address, and telephone number of each person the 
petitioner believes imports or, if there were no importations, is likely 
to import the subject merchandise;
    (10) Factual information regarding material injury, threat of 
material injury, or material retardation, and causation;
    (11) If the petitioner alleges ``critical circumstances'' under 
section 703(e)(1) or section 733(e)(1) of the Act and Sec. 351.206, 
factual information regarding:
    (i) Whether imports of the subject merchandise are likely to 
undermine seriously the remedial effect of any order issued under 
section 706(a) or section 736(a) of the Act;
    (ii) Massive imports of the subject merchandise in a relatively 
short period; and
    (iii) (A) In an antidumping proceeding, either:
    (1) A history of dumping; or
    (2) The importer's knowledge that the exporter was selling the 
subject merchandise at less than its fair value, and that there would be 
material injury by reason of such sales; or
    (B) In a countervailing duty proceeding, whether the countervailable 
subsidy is inconsistent with the Subsidies Agreement; and
    (12) Any other factual information on which the petitioner relies.
    (c) Simultaneous filing and certification. The petitioner must file 
a copy of the petition with the Commission and the Secretary on the same 
day and so certify in submitting the petition to the Secretary. Factual 
information in the petition must be certified, as provided in Sec. 
351.303(g). Other filing requirements are set forth in Sec. 351.303.
    (d) Business proprietary status of information. The Secretary will 
treat as business proprietary any factual information for which the 
petitioner requests business proprietary treatment and which meets the 
requirements of Sec. 351.304.
    (e) Amendment of petition. The Secretary may allow timely amendment 
of

[[Page 210]]

the petition. The petitioner must file an amendment with the Commission 
and the Secretary on the same day and so certify in submitting the 
amendment to the Secretary. If the amendment consists of new 
allegations, the timeliness of the new allegations will be governed by 
Sec. 351.301.
    (f) Notification of representative of the exporting country. Upon 
receipt of a petition, the Secretary will deliver a public version of 
the petition (see Sec. 351.304(c)) to a representative in Washington, 
DC, of the government of any exporting country named in the petition.
    (g) Petition based upon derogation of an international undertaking 
on official export credits. In the case of a petition described in 
section 702(b)(3) of the Act, the petitioner must file a copy of the 
petition with the Secretary of the Treasury, as well as with the 
Secretary and the Commission, and must so certify in submitting the 
petition to the Secretary.
    (h) Assistance to small businesses; additional information. (1) The 
Secretary will provide technical assistance to eligible small 
businesses, as defined in section 339 of the Act, to enable them to 
prepare and file petitions. The Secretary may deny assistance if the 
Secretary concludes that the petition, if filed, could not satisfy the 
requirements of section 702(c)(1)(A) or section 732(c)(1)(A) of the Act 
(whichever is applicable) (see Sec. 351.203).
    (2) For additional information concerning petitions, contact the 
Director for Policy and Analysis, Import Administration, International 
Trade Administration, Room 3093, U.S. Department of Commerce, 
Pennsylvania Avenue and 14th Street, NW, Washington, DC 20230; (202) 
482-1768.
    (i) Pre-initiation communications--(1) In general. During the period 
before the Secretary's decision whether to initiate an investigation, 
the Secretary will not consider the filing of a notice of appearance to 
constitute a communication for purposes of section 702(b)(4)(B) or 
section 732(b)(3)(B) of the Act.
    (2) Consultations with foreign governments in countervailing duty 
proceedings. In a countervailing duty proceeding, the Secretary will 
invite the government of any exporting country named in the petition for 
consultations with respect to the petition. (The information collection 
requirements in paragraph (a) of this section have been approved by the 
Office of Management and Budget under control number 0625-0105.)



Sec. 351.203  Determination of sufficiency of petition.

    (a) Introduction. When a petition is filed under Sec. 351.202, the 
Secretary must determine that the petition satisfies the relevant 
statutory requirements before initiating an antidumping or 
countervailing duty investigation. This section sets forth rules 
regarding a determination as to the sufficiency of a petition (including 
the determination that a petition is supported by the domestic 
industry), the deadline for making the determination, and the actions to 
be taken once the Secretary has made the determination.
    (b) Determination of sufficiency--(1) In general. Normally, not 
later than 20 days after a petition is filed, the Secretary, on the 
basis of sources readily available to the Secretary, will examine the 
accuracy and adequacy of the evidence provided in the petition and 
determine whether to initiate an investigation under section 
702(c)(1)(A) or section 732(c)(1)(A) of the Act (whichever is 
applicable).
    (2) Extension where polling required. If the Secretary is required 
to poll or otherwise determine support for the petition under section 
702(c)(4)(D) or section 732(c)(4)(D) of the Act, the Secretary may, in 
exceptional circumstances, extend the 20-day period by the amount of 
time necessary to collect and analyze the required information. In no 
case will the period between the filing of a petition and the 
determination whether to initiate an investigation exceed 40 days.
    (c) Notice of initiation and distribution of petition--(1) Notice of 
initiation. If the initiation determination of the Secretary under 
section 702(c)(1)(A) or section 732(c)(1)(A) of the Act is affirmative, 
the Secretary will initiate an investigation and publish in the Federal 
Register notice of ``Initiation of Antidumping (Countervailing Duty) 
Investigation.'' The Secretary will notify

[[Page 211]]

the Commission at the time of initiation of the investigation and will 
make available to employees of the Commission directly involved in the 
proceeding the information upon which the Secretary based the initiation 
and which the Commission may consider relevant to its injury 
determinations.
    (2) Distribution of petition. As soon as practicable after 
initiation of an investigation, the Secretary will provide a public 
version of the petition to all known exporters (including producers who 
sell for export to the United States) of the subject merchandise. If the 
Secretary determines that there is a particularly large number of 
exporters involved, instead of providing the public version to all known 
exporters, the Secretary may provide the public version to a trade 
association of the exporters or, alternatively, may consider the 
requirement of the preceding sentence to have been satisfied by the 
delivery of a public version of the petition to the government of the 
exporting country under Sec. 351.202(f).
    (d) Insufficiency of petition. If an initiation determination of the 
Secretary under section 702(c)(1)(A) or section 732(c)(1)(A) of the Act 
is negative, the Secretary will dismiss the petition, terminate the 
proceeding, notify the petitioner in writing of the reasons for the 
determination, and publish in the Federal Register notice of ``Dismissal 
of Antidumping (Countervailing Duty) Petition.''
    (e) Determination of industry support. In determining industry 
support for a petition under section 702(c)(4) or section 732(c)(4) of 
the Act, the following rules will apply:
    (1) Measuring production. The Secretary normally will measure 
production over a twelve-month period specified by the Secretary, and 
may measure production based on either value or volume. Where a party to 
the proceeding establishes that production data for the relevant period, 
as specified by the Secretary, is unavailable, production levels may be 
established by reference to alternative data that the Secretary 
determines to be indicative of production levels.
    (2) Positions treated as business proprietary information. Upon 
request, the Secretary may treat the position of a domestic producer or 
workers regarding the petition and any production information supplied 
by the producer or workers as business proprietary information under 
Sec. 351.105(c)(10).
    (3) Positions expressed by workers. The Secretary will consider the 
positions of workers and management regarding the petition to be of 
equal weight. The Secretary will assign a single weight to the positions 
of both workers and management according to the production of the 
domestic like product of the firm in which the workers and management 
are employed. If the management of a firm expresses a position in direct 
opposition to the position of the workers in that firm, the Secretary 
will treat the production of that firm as representing neither support 
for, nor opposition to, the petition.
    (4) Certain positions disregarded. (i) The Secretary will disregard 
the position of a domestic producer that opposes the petition if such 
producer is related to a foreign producer or to a foreign exporter under 
section 771(4)(B)(ii) of the Act, unless such domestic producer 
demonstrates to the Secretary's satisfaction that its interests as a 
domestic producer would be adversely affected by the imposition of an 
antidumping order or a countervailing duty order, as the case may be; 
and
    (ii) The Secretary may disregard the position of a domestic producer 
that is an importer of the subject merchandise, or that is related to 
such an importer, under section 771(4)(B)(ii) of the Act.
    (5) Polling the industry. In conducting a poll of the industry under 
section 702(c)(4)(D)(i) or section 732(c)(4)(D)(i) of the Act, the 
Secretary will include unions, groups of workers, and trade or business 
associations described in paragraphs (9)(D) and (9)(E) of section 771 of 
the Act.
    (f) Time limits where petition involves same merchandise as that 
covered by an order that has been revoked. Under section 702(c)(1)(C) or 
section 732(c)(1)(C) of the Act, and in expediting an investigation 
involving subject merchandise for which a prior order was revoked or a 
suspended investigation was terminated, the Secretary will consider

[[Page 212]]

``section 751(d)'' as including a predecessor provision.



Sec. 351.204  Time periods and persons examined; voluntary respondents; 

exclusions.

    (a) Introduction. Because the Act does not specify the precise 
period of time that the Secretary should examine in an antidumping or 
countervailing duty investigation, this section sets forth rules 
regarding the period of investigation (``POI''). In addition, this 
section includes rules regarding the selection of persons to be 
examined, the treatment of voluntary respondents that are not selected 
for individual examination, and the exclusion of persons that the 
Secretary ultimately finds are not dumping or are not receiving 
countervailable subsidies.
    (b) Period of investigation--(1) Antidumping investigation. In an 
antidumping investigation, the Secretary normally will examine 
merchandise sold during the four most recently completed fiscal quarters 
(or, in an investigation involving merchandise imported from a nonmarket 
economy country, the two most recently completed fiscal quarters) as of 
the month preceding the month in which the petition was filed or in 
which the Secretary self-initiated an investigation. However, the 
Secretary may examine merchandise sold during any additional or 
alternate period that the Secretary concludes is appropriate.
    (2) Countervailing duty investigation. In a countervailing duty 
investigation, the Secretary normally will rely on information 
pertaining to the most recently completed fiscal year for the government 
and exporters or producers in question. If the exporters or producers 
have different fiscal years, the Secretary normally will rely on 
information pertaining to the most recently completed calendar year. If 
the investigation is conducted on an aggregate basis under section 
777A(e)(2)(B) of the Act, the Secretary normally will rely on 
information pertaining to the most recently completed fiscal year for 
the government in question. However, the Secretary may rely on 
information for any additional or alternate period that the Secretary 
concludes is appropriate.
    (c) Exporters and producers examined--(1) In general. In an 
investigation, the Secretary will attempt to determine an individual 
weighted-average dumping margin or individual countervailable subsidy 
rate for each known exporter or producer of the subject merchandise. 
However, the Secretary may decline to examine a particular exporter or 
producer if that exporter or producer and the petitioner agree.
    (2) Limited investigation. Notwithstanding paragraph (c)(1) of this 
section, the Secretary may limit the investigation by using a method 
described in subsection (a), (c), or (e) of section 777A of the Act.
    (d) Voluntary respondents--(1) In general. If the Secretary limits 
the number of exporters or producers to be individually examined under 
section 777A(c)(2) or section 777A(e)(2)(A) of the Act, the Secretary 
will examine voluntary respondents (exporters or producers, other than 
those initially selected for individual examination) in accordance with 
section 782(a) of the Act.
    (2) Acceptance of voluntary respondents. The Secretary will 
determine, as soon as practicable, whether to examine a voluntary 
respondent individually. A voluntary respondent accepted for individual 
examination under subparagraph (d)(1) of this section will be subject to 
the same requirements as an exporter or producer initially selected by 
the Secretary for individual examination under section 777A(c)(2) or 
section 777A(e)(2)(A) of the Act, including the requirements of section 
782(a) of the Act and, where applicable, the use of the facts available 
under section 776 of the Act and Sec. 351.308.
    (3) Exclusion of voluntary respondents' rates from all-others rate. 
In calculating an all-others rate under section 705(c)(5) or section 
735(c)(5) of the Act, the Secretary will exclude weighted-average 
dumping margins or countervailable subsidy rates calculated for 
voluntary respondents.
    (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.''

[[Page 213]]

    (e) Exclusions--(1) In general. The Secretary will exclude from an 
affirmative final determination under section 705(a) or section 735(a) 
of the Act or an order under section 706(a) or section 736(a) of the 
Act, any exporter or producer for which the Secretary determines an 
individual weighted-average dumping margin or individual net 
countervailable subsidy rate of zero or de minimis.
    (2) Preliminary determinations. In an affirmative preliminary 
determination under section 703(b) or section 733(b) of the Act, an 
exporter or producer for which the Secretary preliminarily determines an 
individual weighted-average dumping margin or individual net 
countervailable subsidy of zero or de minimis will not be excluded from 
the preliminary determination or the investigation. However, the 
exporter or producer will not be subject to provisional measures under 
section 703(d) or section 733(d) of the Act.
    (3) Exclusion of nonproducing exporter--(i) In general. In the case 
of an exporter that is not the producer of subject merchandise, the 
Secretary normally will limit an exclusion of the exporter to subject 
merchandise of those producers that supplied the exporter during the 
period of investigation.
    (ii) Example. During the period of investigation, Exporter A exports 
to the United States subject merchandise produced by Producer X. Based 
on an examination of Exporter A, the Secretary determines that the 
dumping margins with respect to these exports are de minimis, and the 
Secretary excludes Exporter A. Normally, the exclusion of Exporter A 
would be limited to subject merchandise produced by Producer X. If 
Exporter A began to export subject merchandise produced by Producer Y, 
this merchandise would be subject to the antidumping duty order, if any.
    (4) Countervailing duty investigations conducted on an aggregate 
basis and requests for exclusion from countervailing duty order. Where 
the Secretary conducts a countervailing duty investigation on an 
aggregate basis under section 777A(e)(2)(B) of the Act, the Secretary 
will consider and investigate requests for exclusion to the extent 
practicable. An exporter or producer that desires exclusion from an 
order must submit:
    (i) A certification by the exporter or producer that it received 
zero or de minimis net countervailable subsidies during the period of 
investigation;
    (ii) If the exporter or producer received a countervailable subsidy, 
calculations demonstrating that the amount of net countervailable 
subsidies received was de minimis during the period of investigation;
    (iii) If the exporter is not the producer of the subject 
merchandise, certifications from the suppliers and producers of the 
subject merchandise that those persons received zero or de minimis net 
countervailable subsidies during the period of the investigation; and
    (iv) A certification from the government of the affected country 
that the government did not provide the exporter (or the exporter's 
supplier) or producer with more than de minimis net countervailable 
subsidies during the period of investigation.

[62 FR 27379, May 19, 1997, as amended at 73 FR 3643, Jan. 22, 2008]



Sec. 351.205  Preliminary determination.

    (a) Introduction. A preliminary determination in an antidumping or 
countervailing duty investigation constitutes the first point at which 
the Secretary may provide a remedy if the Secretary preliminarily finds 
that dumping or countervailable subsidization has occurred. The remedy 
(sometimes referred to as ``provisional measures'') usually takes the 
form of a bonding requirement to ensure payment if antidumping or 
countervailing duties ultimately are imposed. Whether the Secretary's 
preliminary determination is affirmative or negative, the investigation 
continues. This section contains rules regarding deadlines for 
preliminary determinations, postponement of preliminary determinations, 
notices of preliminary determinations, and the effects of affirmative 
preliminary determinations.
    (b) Deadline for preliminary determination. The deadline for a 
preliminary determination under section 703(b) or section 733(b) of the 
Act will be:
    (1) Normally not later than 140 days in an antidumping investigation 
(65

[[Page 214]]

days in a countervailing duty investigation) after the date on which the 
Secretary initiated the investigation (see section 703(b)(1) or section 
733(b)(1)(A) of the Act);
    (2) Not later than 190 days in an antidumping investigation (130 
days in a countervailing duty investigation) after the date on which the 
Secretary initiated the investigation if the Secretary postpones the 
preliminary determination at petitioner's request or because the 
Secretary determines that the investigation is extraordinarily 
complicated (see section 703(c)(1) or section 733(c)(1) of the Act);
    (3) In a countervailing duty investigation, not later than 250 days 
after the date on which the proceeding began if the Secretary postpones 
the preliminary determination due to an upstream subsidy allegation (up 
to 310 days if the Secretary also postponed the preliminary 
determination at the request of the petitioner or because the Secretary 
determined that the investigation is extraordinarily complicated) (see 
section 703(c)(1) and section 703(g)(1) of the Act);
    (4) Within 90 days after initiation in an antidumping investigation, 
and on an expedited basis in a countervailing duty investigation, where 
verification has been waived (see section 703(b)(3) or section 733(b)(2) 
of the Act);
    (5) In a countervailing duty investigation, on an expedited basis 
and within 65 days after the date on which the Secretary initiated the 
investigation if the sole subsidy alleged in the petition was the 
derogation of an international undertaking on official export credits 
(see section 702(b)(3) and section 703(b)(2) of the Act);
    (6) In a countervailing duty investigation, not later than 60 days 
after the date on which the Secretary initiated the investigation if the 
only subsidy under investigation is a subsidy with respect to which the 
Secretary received notice from the United States Trade Representative of 
a violation of Article 8 of the Subsidies Agreement (see section 
703(b)(5) of the Act); and
    (7) In an antidumping investigation, within the deadlines set forth 
in section 733(b)(1)(B) of the Act if the investigation involves short 
life cycle merchandise (see section 733(b)(1)(B) and section 739 of the 
Act).
    (c) Contents of preliminary determination and publication of notice. 
A preliminary determination will include a preliminary finding on 
critical circumstances, if appropriate, under section 703(e)(1) or 
section 733(e)(1) of the Act (whichever is applicable). The Secretary 
will publish in the Federal Register notice of ``Affirmative (Negative) 
Preliminary Antidumping (Countervailing Duty) Determination,'' including 
the rates, if any, and an invitation for argument consistent with Sec. 
351.309.
    (d) Effect of affirmative preliminary determination. If the 
preliminary determination is affirmative, the Secretary will take the 
actions described in section 703(d) or section 733(d) of the Act 
(whichever is applicable). In making information available to the 
Commission under section 703(d)(3) or section 733(d)(3) of the Act, the 
Secretary will make available to the Commission and to employees of the 
Commission directly involved in the proceeding the information upon 
which the Secretary based the preliminary determination and which the 
Commission may consider relevant to its injury determination.
    (e) Postponement at the request of the petitioner. A petitioner must 
submit a request for postponement of the preliminary determination (see 
section 703(c)(1)(A) or section 733(c)(1)(A) of the Act) 25 days or more 
before the scheduled date of the preliminary determination, and must 
state the reasons for the request. The Secretary will grant the request, 
unless the Secretary finds compelling reasons to deny the request.
    (f) Notice of postponement. (1) If the Secretary decides to postpone 
the preliminary determination at the request of the petitioner or 
because the investigation is extraordinarily complicated, the Secretary 
will notify all parties to the proceeding not later than 20 days before 
the scheduled date of the preliminary determination, and will publish in 
the Federal Register notice of ``Postponement of Preliminary Antidumping 
(Countervailing

[[Page 215]]

Duty) Determination,'' stating the reasons for the postponement (see 
section 703(c)(2) or section 733(c)(2) of the Act).
    (2) If the Secretary decides to postpone the preliminary 
determination due to an allegation of upstream subsidies, the Secretary 
will notify all parties to the proceeding not later than the scheduled 
date of the preliminary determination and will publish in the Federal 
Register notice of ``Postponement of Preliminary Countervailing Duty 
Determination,'' stating the reasons for the postponement.



Sec. 351.206  Critical circumstances.

    (a) Introduction. Generally, antidumping or countervailing duties 
are imposed on entries of merchandise made on or after the date on which 
the Secretary first imposes provisional measures (most often the date on 
which notice of an affirmative preliminary determination is published in 
the Federal Register). However, if the Secretary finds that ``critical 
circumstances'' exist, duties may be imposed retroactively on 
merchandise entered up to 90 days before the imposition of provisional 
measures. This section contains procedural and substantive rules 
regarding allegations and findings of critical circumstances.
    (b) In general. If a petitioner submits to the Secretary a written 
allegation of critical circumstances, with reasonably available factual 
information supporting the allegation, 21 days or more before the 
scheduled date of the Secretary's final determination, or on the 
Secretary's own initiative in a self-initiated investigation, the 
Secretary will make a finding whether critical circumstances exist, as 
defined in section 705(a)(2) or section 735(a)(3) of the Act (whichever 
is applicable).
    (c) Preliminary finding. (1) If the petitioner submits an allegation 
of critical circumstances 30 days or more before the scheduled date of 
the Secretary's final determination, the Secretary, based on the 
available information, will make a preliminary finding whether there is 
a reasonable basis to believe or suspect that critical circumstances 
exist, as defined in section 703(e)(1) or section 733(e)(1) of the Act 
(whichever is applicable).
    (2) The Secretary will issue the preliminary finding:
    (i) Not later than the preliminary determination, if the allegation 
is submitted 20 days or more before the scheduled date of the 
preliminary determination; or
    (ii) Within 30 days after the petitioner submits the allegation, if 
the allegation is submitted later than 20 days before the scheduled date 
of the preliminary determination; or
    (iii) If, pursuant to paragraph (i) of this section, the period 
examined for purposes of determining whether critical circumstances 
exists is earlier than normal, the Secretary will issue the preliminary 
finding as early as possible after initiation of the investigation, but 
normally not less than 45 days after the petition was filed. The 
Secretary will notify the Commission and publish in the Federal Register 
notice of the preliminary finding.
    (d) Suspension of liquidation. If the Secretary makes an affirmative 
preliminary finding of critical circumstances, the provisions of section 
703(e)(2) or section 733(e)(2) of the Act (whichever is applicable) 
regarding the retroactive suspension of liquidation will apply.
    (e) Final finding. For any allegation of critical circumstances 
submitted 21 days or more before the scheduled date of the Secretary's 
final determination, the Secretary will make a final finding on critical 
circumstances, and will take appropriate action under section 705(c)(4) 
or section 735(c)(4) of the Act (whichever is applicable).
    (f) Findings in self-initiated investigations. In a self-initiated 
investigation, the Secretary will make preliminary and final findings on 
critical circumstances without regard to the time limits in paragraphs 
(c) and (e) of this section.
    (g) Information regarding critical circumstances. The Secretary may 
request the Commissioner of Customs to compile information on an 
expedited basis regarding entries of the subject merchandise if, at any 
time after the initiation of an investigation, the Secretary makes the 
findings described in section 702(e) or section 732(e) of the Act 
(whichever is applicable) regarding

[[Page 216]]

the possible existence of critical circumstances.
    (h) Massive imports. (1) In determining whether imports of the 
subject merchandise have been massive under section 705(a)(2)(B) or 
section 735(a)(3)(B) of the Act, the Secretary normally will examine:
    (i) The volume and value of the imports;
    (ii) Seasonal trends; and
    (iii) The share of domestic consumption accounted for by the 
imports.
    (2) In general, unless the imports during the ``relatively short 
period'' (see paragraph (i) of this section) have increased by at least 
15 percent over the imports during an immediately preceding period of 
comparable duration, the Secretary will not consider the imports 
massive.
    (i) Relatively short period. Under section 705(a)(2)(B) or section 
735(a)(3)(B) of the Act, the Secretary normally will consider a 
``relatively short period'' as the period beginning on the date the 
proceeding begins and ending at least three months later. However, if 
the Secretary finds that importers, or exporters or producers, had 
reason to believe, at some time prior to the beginning of the 
proceeding, that a proceeding was likely, then the Secretary may 
consider a period of not less than three months from that earlier time.

[62 FR 27379, May 19, 1997, as amended at 64 FR 48707, Sept. 8, 1999]



Sec. 351.207  Termination of investigation.

    (a) Introduction. ``Termination'' is a term of art that refers to 
the end of an antidumping or countervailing duty proceeding in which an 
order has not yet been issued. The Act establishes a variety of 
mechanisms by which an investigation may be terminated, most of which 
are dealt with in this section. For rules regarding the termination of a 
suspended investigation following a review under section 751 of the Act, 
see Sec. 351.222.
    (b) Withdrawal of petition; self-initiated investigations--(1) In 
general. The Secretary may terminate an investigation under section 
704(a)(1)(A) or section 734(a)(1)(A) (withdrawal of petition) or under 
section 704(k) or section 734(k) (self-initiated investigation) of the 
Act, provided that the Secretary concludes that termination is in the 
public interest. If the Secretary terminates an investigation, the 
Secretary will publish in the Federal Register notice of ``Termination 
of Antidumping (Countervailing Duty) Investigation,'' together with, 
when appropriate, a copy of any correspondence with the petitioner 
forming the basis of the withdrawal and the termination. (For the 
treatment in a subsequent investigation of records compiled in an 
investigation in which the petition was withdrawn, see section 
704(a)(1)(B) or section 734(a)(1)(B) of the Act.)
    (2) Withdrawal of petition based on acceptance of quantitative 
restriction agreements. In addition to the requirements of paragraph 
(b)(1) of this section, if a termination is based on the acceptance of 
an understanding or other kind of agreement to limit the volume of 
imports into the United States of the subject merchandise, the Secretary 
will apply the provisions of section 704(a)(2) or section 734(a)(2) of 
the Act (whichever is applicable) regarding public interest and 
consultations with consuming industries and producers and workers.
    (c) Lack of interest. The Secretary may terminate an investigation 
based upon lack of interest (see section 782(h)(1) of the Act). Where 
the Secretary terminates an investigation under this paragraph, the 
Secretary will publish the notice described in paragraph (b)(1) of this 
section.
    (d) Negative determination. An investigation terminates 
automatically upon publication in the Federal Register of the 
Secretary's negative final determination or the Commission's negative 
preliminary or final determination.
    (e) End of suspension of liquidation. When an investigation 
terminates, if the Secretary previously ordered suspension of 
liquidation, the Secretary will order the suspension ended on the date 
of publication of the notice of termination referred to in paragraph (b) 
of this section or on the date of publication of a negative 
determination referred to in paragraph (d) of this section, and will 
instruct the Customs Service to release any cash deposit or bond.

[[Page 217]]



Sec. 351.208  Suspension of investigation.

    (a) Introduction. In addition to the imposition of duties, the Act 
also permits the Secretary to suspend an antidumping or countervailing 
duty investigation by accepting a suspension agreement (referred to in 
the WTO Agreements as an ``undertaking''). Briefly, in a suspension 
agreement, the exporters and producers or the foreign government agree 
to modify their behavior so as to eliminate dumping or subsidization or 
the injury caused thereby. If the Secretary accepts a suspension 
agreement, the Secretary will ``suspend'' the investigation and 
thereafter will monitor compliance with the agreement. This section 
contains rules for entering into suspension agreements and procedures 
for suspending an investigation.
    (b) In general. The Secretary may suspend an investigation under 
section 704 or section 734 of the Act and this section.
    (c) Definition of ``substantially all.'' Under section 704 and 
section 734 of the Act, exporters that account for ``substantially all'' 
of the merchandise means exporters and producers that have accounted for 
not less than 85 percent by value or volume of the subject merchandise 
during the period for which the Secretary is measuring dumping or 
countervailable subsidization in the investigation or such other period 
that the Secretary considers representative.
    (d) Monitoring. In monitoring a suspension agreement under section 
704(c), section 734(c), or section 734(l) of the Act (agreements to 
eliminate injurious effects or to restrict the volume of imports), the 
Secretary will not be obliged to ascertain on a continuing basis the 
prices in the United States of the subject merchandise or of domestic 
like products.
    (e) Exports not to increase during interim period. The Secretary 
will not accept a suspension agreement under section 704(b)(2) or 
section 734(b)(1) of the Act (the cessation of exports) unless the 
agreement ensures that the quantity of the subject merchandise exported 
during the interim period set forth in the agreement does not exceed the 
quantity of the merchandise exported during a period of comparable 
duration that the Secretary considers representative.
    (f) Procedure for suspension of investigation--(1) Submission of 
proposed suspension agreement--(i) In general. As appropriate, the 
exporters and producers or, in an antidumping investigation involving a 
nonmarket economy country or a countervailing duty investigation, the 
government, must submit to the Secretary a proposed suspension agreement 
within:
    (A) In an antidumping investigation, 15 days after the date of 
issuance of the preliminary determination, or
    (B) In a countervailing duty investigation, 7 days after the date of 
issuance of the preliminary determination.
    (ii) Postponement of final determination. Where a proposed 
suspension agreement is submitted in an antidumping investigation, an 
exporter or producer or, in an investigation involving a nonmarket 
economy country, the government, may request postponement of the final 
determination under section 735(a)(2) of the Act (see Sec. 351.210(e)). 
Where the final determination in a countervailing duty investigation is 
postponed under section 703(g)(2) or section 705(a)(1) of the Act (see 
Sec. 351.210(b)(3) and Sec. 351.210(i)), the time limits in paragraphs 
(f)(1)(i), (f)(2)(i), (f)(3), and (g)(1) of this section applicable to 
countervailing duty investigations will be extended to coincide with the 
time limits in such paragraphs applicable to antidumping investigations.
    (iii) Special rule for regional industry determination. If the 
Commission makes a regional industry determination in its final 
affirmative determination under section 705(b) or section 735(b) of the 
Act but not in its preliminary affirmative determination under section 
703(a) or section 733(a) of the Act, the exporters and producers or, in 
an antidumping investigation involving a nonmarket economy country or a 
countervailing duty investigation, the government, must submit to the 
Secretary any proposed suspension agreement within 15 days of the 
publication in the Federal Register of the antidumping or countervailing 
duty order.
    (2) Notification and consultation. In fulfilling the requirements of 
section

[[Page 218]]

704 or section 734 of the Act (whichever is applicable), the Secretary 
will take the following actions:
    (i) In general. The Secretary will notify all parties to the 
proceeding of the proposed suspension of an investigation and provide to 
the petitioner a copy of the suspension agreement preliminarily accepted 
by the Secretary (the agreement must contain the procedures for 
monitoring compliance and a statement of the compatibility of the 
agreement with the requirements of section 704 or section 734 of the 
Act) within:
    (A) In an antidumping investigation, 30 days after the date of 
issuance of the preliminary determination, or
    (B) In a countervailing duty investigation, 15 days after the date 
of issuance of the preliminary determination; or
    (ii) Special rule for regional industry determination. If the 
Commission makes a regional industry determination in its final 
affirmative determination under section 705(b) or section 735(b) of the 
Act but not in its preliminary affirmative determination under section 
703(a) or section 733(a) of the Act, the Secretary, within 15 days of 
the submission of a proposed suspension agreement under paragraph 
(f)(1)(iii) of this section, will notify all parties to the proceeding 
of the proposed suspension agreement and provide to the petitioner a 
copy of the agreement preliminarily accepted by the Secretary (such 
agreement must contain the procedures for monitoring compliance and a 
statement of the compatibility of the agreement with the requirements of 
section 704 or section 734 of the Act); and
    (iii) Consultation. The Secretary will consult with the petitioner 
concerning the proposed suspension of the investigation.
    (3) Opportunity for comment. The Secretary will provide all 
interested parties, an industrial user of the subject merchandise or a 
representative consumer organization, as described in section 777(h) of 
the Act, and United States government agencies an opportunity to submit 
written argument and factual information concerning the proposed 
suspension of the investigation within:
    (i) In an antidumping investigation, 50 days after the date of 
issuance of the preliminary determination,
    (ii) In a countervailing duty investigation, 35 days after the date 
of issuance of the preliminary determination, or
    (iii) In a regional industry case described in paragraph (f)(1)(iii) 
of this section, 35 days after the date of issuance of an order.
    (g) Acceptance of suspension agreement. (1) The Secretary may accept 
an agreement to suspend an investigation within:
    (i) In an antidumping investigation, 60 days after the date of 
issuance of the preliminary determination,
    (ii) In a countervailing duty investigation, 45 days after the date 
of issuance of the preliminary determination, or
    (iii) In a regional industry case described in paragraph (f)(1)(iii) 
of this section, 45 days after the date of issuance of an order.
    (2) If the Secretary accepts an agreement to suspend an 
investigation, the Secretary will take the actions described in section 
704(f), section 704(m)(3), section 734(f), or section 734(l)(3) of the 
Act (whichever is applicable), and will publish in the Federal Register 
notice of ``Suspension of Antidumping (Countervailing Duty) 
Investigation,'' including the text of the agreement. If the Secretary 
has not already published notice of an affirmative preliminary 
determination, the Secretary will include that notice. In accepting an 
agreement, the Secretary may rely on factual or legal conclusions the 
Secretary reached in or after the affirmative preliminary determination.
    (h) Continuation of investigation. (1) A request to the Secretary 
under section 704(g) or section 734(g) of the Act for the continuation 
of the investigation must be made in writing. In addition, the request 
must be simultaneously filed with the Commission, and the requester must 
so certify in submitting the request to the Secretary.
    (2) If the Secretary and the Commission make affirmative final 
determinations in an investigation that has been continued, the 
suspension agreement will remain in effect in accordance

[[Page 219]]

with the factual and legal conclusions in the Secretary's final 
determination. If either the Secretary or the Commission makes a 
negative final determination, the agreement will have no force or 
effect.
    (i) Merchandise imported in excess of allowed quantity. (1) The 
Secretary may instruct the Customs Service not to accept entries, or 
withdrawals from warehouse, for consumption of subject merchandise in 
excess of any quantity allowed by a suspension agreement under section 
704 or section 734 of the Act, including any quantity allowed during the 
interim period (see paragraph (e) of this section).
    (2) Imports in excess of the quantity allowed by a suspension 
agreement, including any quantity allowed during the interim period (see 
paragraph (e) of this section), may be exported or destroyed under 
Customs Service supervision, except that if the agreement is under 
section 704(c)(3) or section 734(l) of the Act (restrictions on the 
volume of imports), the excess merchandise, with the approval of the 
Secretary, may be held for future opening under the agreement by placing 
it in a foreign trade zone or by entering it for warehouse.



Sec. 351.209  Violation of suspension agreement.

    (a) Introduction. A suspension agreement remains in effect until the 
underlying investigation is terminated (see Sec. Sec. 351.207 and 
351.222). However, if the Secretary finds that a suspension agreement 
has been violated or no longer meets the requirements of the Act, the 
Secretary may either cancel or revise the agreement. This section 
contains rules regarding cancellation and revision of suspension 
agreements.
    (b) Immediate determination. If the Secretary determines that a 
signatory has violated a suspension agreement, the Secretary, without 
providing interested parties an opportunity to comment, will:
    (1) Order the suspension of liquidation in accordance with section 
704(i)(1)(A) or section 734(i)(1)(A) of the Act (whichever is 
applicable) of all entries of the subject merchandise entered, or 
withdrawn from warehouse, for consumption on or after the later of:
    (i) 90 days before the date of publication of the notice of 
cancellation of the agreement; or
    (ii) The date of first entry, or withdrawal from warehouse, for 
consumption of the merchandise the sale or export of which was in 
violation of the agreement;
    (2) If the investigation was not completed under section 704(g) or 
section 734(g) of the Act, resume the investigation as if the Secretary 
had made an affirmative preliminary determination on the date of 
publication of the notice of cancellation and impose provisional 
measures by instructing the Customs Service to require for each entry of 
the subject merchandise suspended under paragraph (b)(1) of this section 
a cash deposit or bond at the rates determined in the affirmative 
preliminary determination;
    (3) If the investigation was completed under section 704(g) or 
section 734(g) of the Act, issue an antidumping order or countervailing 
duty order (whichever is applicable) and, for all entries subject to 
suspension of liquidation under paragraph (b)(1) of this section, 
instruct the Customs Service to require for each entry of the 
merchandise suspended under this paragraph a cash deposit at the rates 
determined in the affirmative final determination;
    (4) Notify all persons who are or were parties to the proceeding, 
the Commission, and, if the Secretary determines that the violation was 
intentional, the Commissioner of Customs; and
    (5) Publish in the Federal Register notice of ``Antidumping 
(Countervailing Duty) Order (Resumption of Antidumping (Countervailing 
Duty) Investigation); Cancellation of Suspension Agreement.''
    (c) Determination after notice and comment. (1) If the Secretary has 
reason to believe that a signatory has violated a suspension agreement, 
or that an agreement no longer meets the requirements of section 
704(d)(1) or section 734(d) of the Act, but the Secretary does not have 
sufficient information to determine that a signatory has violated the 
agreement (see paragraph (b) of this section), the Secretary will 
publish in the Federal Register notice of

[[Page 220]]

``Invitation for Comment on Antidumping (Countervailing Duty) Suspension 
Agreement.''
    (2) After publication of the notice inviting comment and after 
consideration of comments received the Secretary will:
    (i) Determine whether any signatory has violated the suspension 
agreement; or
    (ii) Determine whether the suspension agreement no longer meets the 
requirements of section 704(d)(1) or section 734(d) of the Act.
    (3) If the Secretary determines that a signatory has violated the 
suspension agreement, the Secretary will take appropriate action as 
described in paragraphs (b)(1) through (b)(5) of this section.
    (4) If the Secretary determines that a suspension agreement no 
longer meets the requirements of section 704(d)(1) or section 734(d) of 
the Act, the Secretary will:
    (i) Take appropriate action as described in paragraphs (b)(1) 
through (b)(5) of this section; except that, under paragraph (b)(1)(ii) 
of this section, the Secretary will order the suspension of liquidation 
of all entries of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the later of:
    (A) 90 days before the date of publication of the notice of 
suspension of liquidation; or
    (B) The date of first entry, or withdrawal from warehouse, for 
consumption of the merchandise the sale or export of which does not meet 
the requirements of section 704(d)(1) of the Act;
    (ii) Continue the suspension of investigation by accepting a revised 
suspension agreement under section 704(b) or section 734(b) of the Act 
(whether or not the Secretary accepted the original agreement under such 
section) that, at the time the Secretary accepts the revised agreement, 
meets the applicable requirements of section 704(d)(1) or section 734(d) 
of the Act, and publish in the Federal Register notice of ``Revision of 
Agreement Suspending Antidumping (Countervailing Duty) Investigation''; 
or
    (iii) Continue the suspension of investigation by accepting a 
revised suspension agreement under section 704(c), section 734(c), or 
section 734(l) of the Act (whether or not the Secretary accepted the 
original agreement under such section) that, at the time the Secretary 
accepts the revised agreement, meets the applicable requirements of 
section 704(d)(1) or section 734(d) of the Act, and publish in the 
Federal Register notice of ``Revision of Agreement Suspending 
Antidumping (Countervailing Duty) Investigation.'' If the Secretary 
continues to suspend an investigation based on a revised agreement 
accepted under section 704(c), section 734(c), or section 734(l) of the 
Act, the Secretary will order suspension of liquidation to begin. The 
suspension will not end until the Commission completes any requested 
review of the revised agreement under section 704(h) or section 734(h) 
of the Act. If the Commission receives no request for review within 20 
days after the date of publication of the notice of the revision, the 
Secretary will order the suspension of liquidation ended on the 21st day 
after the date of publication, and will instruct the Customs Service to 
release any cash deposit or bond. If the Commission undertakes a review 
under section 704(h) or section 734(h) of the Act, the provisions of 
sections 704(h)(2) and (3) and sections 734(h)(2) and (3) of the Act 
will apply.
    (5) If the Secretary decides neither to consider the suspension 
agreement violated nor to revise the agreement, the Secretary will 
publish in the Federal Register notice of the Secretary's decision under 
paragraph (c)(2) of this section, including a statement of the factual 
and legal conclusions on which the decision is based.
    (d) Additional signatories. If the Secretary decides that a 
suspension agreement no longer will completely eliminate the injurious 
effect of exports to the United States of subject merchandise under 
section 704(c)(1) or section 734(c)(1) of the Act, or that the signatory 
exporters no longer account for substantially all of the subject 
merchandise, the Secretary may revise the agreement to include 
additional signatory exporters.

[[Page 221]]

    (e) Definition of ``violation.'' Under this section, ``violation'' 
means noncompliance with the terms of a suspension agreement caused by 
an act or omission of a signatory, except, at the discretion of the 
Secretary, an act or omission which is inadvertent or inconsequential.



Sec. 351.210  Final determination.

    (a) Introduction. A ``final determination'' in an antidumping or 
countervailing duty investigation constitutes a final decision by the 
Secretary as to whether dumping or countervailable subsidization is 
occurring. If the Secretary's final determination is affirmative, in 
most instances the Commission will issue a final injury determination 
(except in certain countervailing duty investigations). Also, if the 
Secretary's preliminary determination was negative but the final 
determination is affirmative, the Secretary will impose provisional 
measures. If the Secretary's final determination is negative, the 
proceeding, including the injury investigation conducted by the 
Commission, terminates. This section contains rules regarding deadlines 
for, and postponement of, final determinations, contents of final 
determinations, and the effects of final determinations.
    (b) Deadline for final determination. The deadline for a final 
determination under section 705(a)(1) or section 735(a)(1) of the Act 
will be:
    (1) Normally, not later than 75 days after the date of the 
Secretary's preliminary determination (see section 705(a)(1) or section 
735(a)(1) of the Act);
    (2) In an antidumping investigation, not later than 135 days after 
the date of publication of the preliminary determination if the 
Secretary postpones the final determination at the request of:
    (i) The petitioner, if the preliminary determination was negative 
(see section 735(a)(2)(B) of the Act); or
    (ii) Exporters or producers who account for a significant proportion 
of exports of the subject merchandise, if the preliminary determination 
was affirmative (see section 735(a)(2)(A) of the Act);
    (3) In a countervailing duty investigation, not later than 165 days 
after the preliminary determination, if, after the preliminary 
determination, the Secretary decides to investigate an upstream subsidy 
allegation and concludes that additional time is needed to investigate 
the allegation (see section 703(g)(2) of the Act); or
    (4) In a countervailing duty investigation, the same date as the 
date of the final antidumping determination, if:
    (i) In a situation where the Secretary simultaneously initiated 
antidumping and countervailing duty investigations on the subject 
merchandise (from the same or other countries), the petitioner requests 
that the final countervailing duty determination be postponed to the 
date of the final antidumping determination; and
    (ii) If the final countervailing duty determination is not due on a 
later date because of postponement due to an allegation of upstream 
subsidies under section 703(g) of the Act (see section 705(a)(1) of the 
Act).
    (c) Contents of final determination and publication of notice. The 
final determination will include, if appropriate, a final finding on 
critical circumstances under section 705(a)(2) or section 735(a)(3) of 
the Act (whichever is applicable). The Secretary will publish in the 
Federal Register notice of ``Affirmative (Negative) Final Antidumping 
(Countervailing Duty) Determination,'' including the rates, if any.
    (d) Effect of affirmative final determination. If the final 
determination is affirmative, the Secretary will take the actions 
described in section 705(c)(1) or section 735(c)(1) of the Act 
(whichever is applicable). In addition, in the case of a countervailing 
duty investigation involving subject merchandise from a country that is 
not a Subsidies Agreement country, the Secretary will instruct the 
Customs Service to require a cash deposit, as provided in section 
706(a)(3) of the Act, for each entry of the subject merchandise entered, 
or withdrawn from warehouse, for consumption on or after the date of 
publication of the order under section 706(a) of the Act.
    (e) Request for postponement of final antidumping determination--(1) 
In general. A request to postpone a final antidumping determination 
under section 735(a)(2) of the Act (see paragraph (b)(2)

[[Page 222]]

of this section) must be submitted in writing within the scheduled date 
of the final determination. The Secretary may grant the request, unless 
the Secretary finds compelling reasons to deny the request.
    (2) Requests by exporters. In the case of a request submitted under 
paragraph (e)(1) of this section by exporters who account for a 
significant proportion of exports of subject merchandise (see section 
735(a)(2)(A) of the Act), the Secretary will not grant the request 
unless those exporters also submit a request described in the last 
sentence of section 733(d) of the Act (extension of provisional measures 
from a 4-month period to not more than 6 months).
    (f) Deferral of decision concerning upstream subsidization to 
review. Notwithstanding paragraph (b)(3) of this section, if the 
petitioner so requests in writing and the preliminary countervailing 
duty determination was affirmative, the Secretary, instead of postponing 
the final determination, may defer a decision concerning upstream 
subsidization until the conclusion of the first administrative review of 
a countervailing duty order, if any (see section 703(g)(2)(B)(i) of the 
Act).
    (g) Notification of postponement. If the Secretary postpones a final 
determination under paragraph (b)(2), (b)(3), or (b)(4) of this section, 
the Secretary will notify promptly all parties to the proceeding of the 
postponement, and will publish in the Federal Register notice of 
``Postponement of Final Antidumping (Countervailing Duty) 
Determination,'' stating the reasons for the postponement.
    (h) Termination of suspension of liquidation in a countervailing 
duty investigation. If the Secretary postpones a final countervailing 
duty determination, the Secretary will end any suspension of liquidation 
ordered in the preliminary determination not later than 120 days after 
the date of publication of the preliminary determination, and will not 
resume it unless and until the Secretary publishes a countervailing duty 
order.
    (i) Postponement of final countervailing duty determination for 
simultaneous investigations. A request by the petitioner to postpone a 
final countervailing duty determination to the date of the final 
antidumping determination must be submitted in writing within five days 
of the date of publication of the preliminary countervailing duty 
determination (see section 705(a)(1) and paragraph (b)(4) of this 
section).
    (j) Commission access to information. If the final determination is 
affirmative, the Secretary will make available to the Commission and to 
employees of the Commission directly involved in the proceeding the 
information upon which the Secretary based the final determination and 
that the Commission may consider relevant to its injury determination 
(see section 705(c)(1)(A) or section 735(c)(1)(A) of the Act).
    (k) Effect of negative final determination. An investigation 
terminates upon publication in the Federal Register of the Secretary's 
or the Commission's negative final determination, and the Secretary will 
take the relevant actions described in section 705(c)(2) or section 
735(c)(2) of the Act (whichever is applicable).



Sec. 351.211  Antidumping order and countervailing duty order.

    (a) Introduction. The Secretary issues an order when both the 
Secretary and the Commission (except in certain countervailing duty 
investigations) have made final affirmative determinations. The issuance 
of an order ends the investigative phase of a proceeding. Generally, 
upon the issuance of an order, importers no longer may post bonds as 
security for antidumping or countervailing duties, but instead must make 
a cash deposit of estimated duties. An order remains in effect until it 
is revoked. This section contains rules regarding the issuance of orders 
in general, as well as special rules for orders where the Commission has 
found a regional industry to exist.
    (b) In general. Not later than seven days after receipt of notice of 
an affirmative final injury determination by the Commission under 
section 705(b) or section 735(b) of the Act, or, in a countervailing 
duty proceeding involving subject merchandise from a country not 
entitled to an injury test (see Sec. 351.101(b)), simultaneously with 
publication of an affirmative final countervailing duty determination by 
the Secretary, the Secretary will publish in

[[Page 223]]

the Federal Register an ``Antidumping Order'' or ``Countervailing Duty 
Order'' that:
    (1) Instructs the Customs Service to assess antidumping duties or 
countervailing duties (whichever is applicable) on the subject 
merchandise, in accordance with the Secretary's instructions at the 
completion of each review requested under Sec. 351.213(b) 
(administrative review), Sec. 351.214(b) (new shipper review), or Sec. 
351.215(b) (expedited antidumping review), or if a review is not 
requested, in accordance with the Secretary's assessment instructions 
under Sec. 351.212(c);
    (2) Instructs the Customs Service to require a cash deposit of 
estimated antidumping or countervailing duties at the rates included in 
the Secretary's final determination; and
    (3) Orders the suspension of liquidation ended for all entries of 
the subject merchandise entered, or withdrawn from warehouse, for 
consumption before the date of publication of the Commission's final 
determination, and instructs the Customs Service to release the cash 
deposit or bond on those entries, if in its final determination, the 
Commission found a threat of material injury or material retardation of 
the establishment of an industry, unless the Commission in its final 
determination also found that, absent the suspension of liquidation 
ordered under section 703(d)(2) or section 733(d)(2) of the Act, it 
would have found material injury (see section 706(b) or section 736(b) 
of the Act).



Sec. 351.212  Assessment of antidumping and countervailing duties; provisional 

measures deposit cap; interest on certain overpayments and underpayments.

    (a) Introduction. Unlike the systems of some other countries, the 
United States uses a ``retrospective'' assessment system under which 
final liability for antidumping and countervailing duties is determined 
after merchandise is imported. Generally, the amount of duties to be 
assessed is determined in a review of the order covering a discrete 
period of time. If a review is not requested, duties are assessed at the 
rate established in the completed review covering the most recent prior 
period or, if no review has been completed, the cash deposit rate 
applicable at the time merchandise was entered. This section contains 
rules regarding the assessment of duties, the provisional measures 
deposit cap, and interest on over- or undercollections of estimated 
duties.
    (b) Assessment of antidumping and countervailing duties as the 
result of a review--(1) Antidumping duties. If the Secretary has 
conducted a review of an antidumping order under Sec. 351.213 
(administrative review), Sec. 351.214 (new shipper review), or Sec. 
351.215 (expedited antidumping review), the Secretary normally will 
calculate an assessment rate for each importer of subject merchandise 
covered by the review. The Secretary normally will calculate the 
assessment rate by dividing the dumping margin found on the subject 
merchandise examined by the entered value of such merchandise for normal 
customs duty purposes. The Secretary then will instruct the Customs 
Service to assess antidumping duties by applying the assessment rate to 
the entered value of the merchandise.
    (2) Countervailing duties. If the Secretary has conducted a review 
of a countervailing duty order under Sec. 351.213 (administrative 
review) or Sec. 351.214 (new shipper review), the Secretary normally 
will instruct the Customs Service to assess countervailing duties by 
applying the rates included in the final results of the review to the 
entered value of the merchandise.
    (c) Automatic assessment of antidumping and countervailing duties if 
no review is requested. (1) If the Secretary does not receive a timely 
request for an administrative review of an order (see paragraph (b)(1), 
(b)(2), or (b)(3) of Sec. 351.213), the Secretary, without additional 
notice, will instruct the Customs Service to:
    (i) Assess antidumping duties or countervailing duties, as the case 
may be, on the subject merchandise described in Sec. 351.213(e) at 
rates equal to the cash deposit of, or bond for, estimated antidumping 
duties or countervailing duties required on that merchandise at the time 
of entry, or withdrawal from warehouse, for consumption; and
    (ii) To continue to collect the cash deposits previously ordered.

[[Page 224]]

    (2) If the Secretary receives a timely request for an administrative 
review of an order (see paragraph (b)(1), (b)(2), or (b)(3) of Sec. 
351.213), the Secretary will instruct the Customs Service to assess 
antidumping duties or countervailing duties, and to continue to collect 
cash deposits, on the merchandise not covered by the request in 
accordance with paragraph (c)(1) of this section.
    (3) The automatic assessment provisions of paragraphs (c)(1) and 
(c)(2) of this section will not apply to subject merchandise that is the 
subject of a new shipper review (see Sec. 351.214) or an expedited 
antidumping review (see Sec. 351.215).
    (d) Provisional measures deposit cap. This paragraph applies to 
subject merchandise entered, or withdrawn from warehouse, for 
consumption before the date of publication of the Commission's notice of 
an affirmative final injury determination or, in a countervailing duty 
proceeding that involves merchandise from a country that is not entitled 
to an injury test, the date of the Secretary's notice of an affirmative 
final countervailing duty determination. If the amount of duties that 
would be assessed by applying the rates included in the Secretary's 
affirmative preliminary or affirmative final antidumping or 
countervailing duty determination (``provisional duties'') is different 
from the amount of duties that would be assessed by applying the 
assessment rate under paragraphs (b)(1) and (b)(2) of this section 
(``final duties''), the Secretary will instruct the Customs Service to 
disregard the difference to the extent that the provisional duties are 
less than the final duties, and to assess antidumping or countervailing 
duties at the assessment rate if the provisional duties exceed the final 
duties.
    (e) Interest on certain overpayments and underpayments. Under 
section 778 of the Act, the Secretary will instruct the Customs Service 
to calculate interest for each entry on or after the publication of the 
order from the date that a cash deposit is required to be deposited for 
the entry through the date of liquidation of the entry.
    (f) Special rule for regional industry cases--(1) In general. If the 
Commission, in its final injury determination, found a regional industry 
under section 771(4)(C) of the Act, the Secretary may direct that duties 
not be assessed on subject merchandise of a particular exporter or 
producer if the Secretary determines that:
    (i) The exporter or producer did not export subject merchandise for 
sale in the region concerned during or after the Department's period of 
investigation;
    (ii) The exporter or producer has certified that it will not export 
subject merchandise for sale in the region concerned in the future so 
long as the antidumping or countervailing duty order is in effect; and
    (iii) No subject merchandise of the exporter or producer was entered 
into the United States outside of the region and then sold into the 
region during or after the Department's period of investigation.
    (2) Procedures for obtaining an exception from the assessment of 
duties--(i) Request for exception. An exporter or producer seeking an 
exception from the assessment of duties under paragraph (f)(1) of this 
section must request, subject to the provisions of Sec. 351.213 or 
Sec. 351.214, an administrative review or a new shipper review to 
determine whether subject merchandise of the exporter or producer in 
question should be excepted from the assessment of duties under 
paragraph (f)(1) of this section. The exporter or producer making the 
request may request that the review be limited to a determination as to 
whether the requirements of paragraph (f)(1) of this section are 
satisfied. The request for a review must be accompanied by:
    (A) A certification by the exporter or producer that it did not 
export subject merchandise for sale in the region concerned during or 
after the Department's period of investigation, and that it will not do 
so in the future so long as the antidumping or countervailing duty order 
is in effect; and
    (B) A certification from each of the exporter's or producer's U.S. 
importers of the subject merchandise that no subject merchandise of that 
exporter or producer was entered into the United States outside such 
region and then sold into the region during or after the Department's 
period of investigation.

[[Page 225]]

    (ii) Limited review. If the Secretary initiates an administrative 
review or a new shipper review based on a request for review that 
includes a request for an exception from the assessment of duties under 
paragraph (f)(2)(i) of this section, the Secretary, if requested, may 
limit the review to a determination as to whether an exception from the 
assessment of duties should be granted under paragraph (f)(1) of this 
section.
    (3) Exception granted. If, in the final results of the 
administrative review or the new shipper review, the Secretary 
determines that the requirements of paragraph (f)(1) of this section are 
satisfied, the Secretary will instruct the Customs Service to liquidate, 
without regard to antidumping or countervailing duties (whichever is 
appropriate), entries of subject merchandise of the exporter or producer 
concerned.
    (4) Exception not granted. If, in the final results of the 
administrative review or the new shipper review, the Secretary 
determines that the requirements of paragraph (f)(1) are not satisfied, 
the Secretary:
    (i) Will issue assessment instructions to the Customs Service in 
accordance with paragraph (b) of this section; or
    (ii) If the review was limited to a determination as to whether an 
exception from the assessment of duties should be granted, the Secretary 
will instruct the Customs Service to assess duties in accordance with 
paragraph (f)(1) or (f)(2) of this section, whichever is appropriate 
(automatic assessment if no review is requested).



Sec. 351.213  Administrative review of orders and suspension agreements under 

section 751(a)(1) of the Act.

    (a) Introduction. As noted in Sec. 351.212(a), the United States 
has a ``retrospective'' assessment system under which final liability 
for antidumping and countervailing duties is determined after 
merchandise is imported. Although duty liability may be determined in 
the context of other types of reviews, the most frequently used 
procedure for determining final duty liability is the administrative 
review procedure under section 751(a)(1) of the Act. This section 
contains rules regarding requests for administrative reviews and the 
conduct of such reviews.
    (b) Request for administrative review. (1) Each year during the 
anniversary month of the publication of an antidumping or countervailing 
duty order, a domestic interested party or an interested party described 
in section 771(9)(B) of the Act (foreign government) may request in 
writing that the Secretary conduct an administrative review under 
section 751(a)(1) of the Act of specified individual exporters or 
producers covered by an order (except for a countervailing duty order in 
which the investigation or prior administrative review was conducted on 
an aggregate basis), if the requesting person states why the person 
desires the Secretary to review those particular exporters or producers.
    (2) During the same month, an exporter or producer covered by an 
order (except for a countervailing duty order in which the investigation 
or prior administrative review was conducted on an aggregate basis) may 
request in writing that the Secretary conduct an administrative review 
of only that person.
    (3) During the same month, an importer of the merchandise may 
request in writing that the Secretary conduct an administrative review 
of only an exporter or producer (except for a countervailing duty order 
in which the investigation or prior administrative review was conducted 
on an aggregate basis) of the subject merchandise imported by that 
importer.
    (4) Each year during the anniversary month of the publication of a 
suspension of investigation, an interested party may request in writing 
that the Secretary conduct an administrative review of all producers or 
exporters covered by an agreement on which the suspension of 
investigation was based.
    (c) Deferral of administrative review--(1) In general. The Secretary 
may defer the initiation of an administrative review, in whole or in 
part, for one year if:
    (i) The request for administrative review is accompanied by a 
request that the Secretary defer the review, in whole or in part; and
    (ii) None of the following persons objects to the deferral: the 
exporter or

[[Page 226]]

producer for which deferral is requested, an importer of subject 
merchandise of that exporter or producer, a domestic interested party 
and, in a countervailing duty proceeding, the foreign government.
    (2) Timeliness of objection to deferral. An objection to a deferral 
of the initiation of administrative review under paragraph (c)(1)(ii) of 
this section must be submitted within 15 days after the end of the 
anniversary month in which the administrative review is requested.
    (3) Procedures and deadlines. If the Secretary defers the initiation 
of an administrative review, the Secretary will publish notice of the 
deferral in the Federal Register. The Secretary will initiate the 
administrative review in the month immediately following the next 
anniversary month, and the deadline for issuing preliminary results of 
review (see paragraph (h)(1) of this section) and submitting factual 
information (see Sec. 351.302(b)(2)) will run from the last day of the 
next anniversary month.
    (d) Rescission of administrative review--(1) Withdrawal of request 
for review. The Secretary will rescind an administrative review under 
this section, in whole or in part, if a party that requested a review 
withdraws the request within 90 days of the date of publication of 
notice of initiation of the requested review. The Secretary may extend 
this time limit if the Secretary decides that it is reasonable to do so.
    (2) Self-initiated review. The Secretary may rescind an 
administrative review that was self-initiated by the Secretary.
    (3) No shipments. The Secretary may rescind an administrative 
review, in whole or only with respect to a particular exporter or 
producer, if the Secretary concludes that, during the period covered by 
the review, there were no entries, exports, or sales of the subject 
merchandise, as the case may be.
    (4) Notice of rescission. If the Secretary rescinds an 
administrative review (in whole or in part), the Secretary will publish 
in the Federal Register notice of ``Rescission of Antidumping 
(Countervailing Duty) Administrative Review'' or, if appropriate, 
``Partial Rescission of Antidumping (Countervailing Duty) Administrative 
Review.''
    (e) Period of review--(1) Antidumping proceedings. (i) Except as 
provided in paragraph (e)(1)(ii) of this section, an administrative 
review under this section normally will cover, as appropriate, entries, 
exports, or sales of the subject merchandise during the 12 months 
immediately preceding the most recent anniversary month.
    (ii) For requests received during the first anniversary month after 
publication of an order or suspension of investigation, an 
administrative review under this section will cover, as appropriate, 
entries, exports, or sales during the period from the date of suspension 
of liquidation under this part or suspension of investigation to the end 
of the month immediately preceding the first anniversary month.
    (2) Countervailing duty proceedings. (i) Except as provided in 
paragraph (e)(2)(ii) of this section, an administrative review under 
this section normally will cover entries or exports of the subject 
merchandise during the most recently completed calendar year. If the 
review is conducted on an aggregate basis, the Secretary normally will 
cover entries or exports of the subject merchandise during the most 
recently completed fiscal year for the government in question.
    (ii) For requests received during the first anniversary month after 
publication of an order or suspension of investigation, an 
administrative review under this section will cover entries or exports, 
as appropriate, during the period from the date of suspension of 
liquidation under this part or suspension of investigation to the end of 
the most recently completed calendar or fiscal year as described in 
paragraph (e)(2)(i) of this section.
    (f) Voluntary respondents. In an administrative review, the 
Secretary will examine voluntary respondents in accordance with section 
782(a) of the Act and Sec. 351.204(d).
    (g) Procedures. The Secretary will conduct an administrative review 
under this section in accordance with Sec. 351.221.

[[Page 227]]

    (h) Time limits--(1) In general. The Secretary will issue 
preliminary results of review (see Sec. 351.221(b)(4)) within 245 days 
after the last day of the anniversary month of the order or suspension 
agreement for which the administrative review was requested, and final 
results of review (see Sec. 351.221(b)(5)) within 120 days after the 
date on which notice of the preliminary results was published in the 
Federal Register.
    (2) Exception. If the Secretary determines that it is not 
practicable to complete the review within the time specified in 
paragraph (h)(1) of this section, the Secretary may extend the 245-day 
period to 365 days and may extend the 120-day period to 180 days. If the 
Secretary does not extend the time for issuing preliminary results, the 
Secretary may extend the time for issuing final results from 120 days to 
300 days.
    (i) Possible cancellation or revision of suspension agreement. If 
during an administrative review the Secretary determines or has reason 
to believe that a signatory has violated a suspension agreement or that 
the agreement no longer meets the requirements of section 704 or section 
734 of the Act (whichever is applicable), the Secretary will take 
appropriate action under section 704(i) or section 734(i) of the Act and 
Sec. 351.209. The Secretary may suspend the time limit in paragraph (h) 
of this section while taking action under Sec. 351.209.
    (j) Absorption of antidumping duties. (1) During any administrative 
review covering all or part of a period falling between the first and 
second or third and fourth anniversary of the publication of an 
antidumping order under Sec. 351.211, or a determination under Sec. 
351.218(d) (sunset review), the Secretary, if requested by a domestic 
interested party within 30 days of the date of publication of the notice 
of initiation of the review, will determine whether antidumping duties 
have been absorbed by an exporter or producer subject to the review if 
the subject merchandise is sold in the United States through an importer 
that is affiliated with such exporter or producer. The request must 
include the name(s) of the exporter or producer for which the inquiry is 
requested.
    (2) For transition orders defined in section 751(c)(6) of the Act, 
the Secretary will apply paragraph (j)(1) of this section to any 
administrative review initiated in 1996 or 1998.
    (3) In determining under paragraph (j)(1) of this section whether 
antidumping duties have been absorbed, the Secretary will examine the 
antidumping duties calculated in the administrative review in which the 
absorption inquiry is requested.
    (4) The Secretary will notify the Commission of the Secretary's 
determination if:
    (i) In the case of an administrative review other than one to which 
paragraph (j)(2) of this section applies, the administrative review 
covers all or part of a time period falling between the third and fourth 
anniversary month of an order; or
    (ii) In the case of an administrative review to which paragraph 
(j)(2) of this section applies, the Secretary initiated the 
administrative review in 1998.
    (k) Administrative reviews of countervailing duty orders conducted 
on an aggregate basis--(1) Request for zero rate. Where the Secretary 
conducts an administrative review of a countervailing duty on an 
aggregate basis under section 777A(e)(2)(B) of the Act, the Secretary 
will consider and review requests for individual assessment and cash 
deposit rates of zero to the extent practicable. An exporter or producer 
that desires a zero rate must submit:
    (i) A certification by the exporter or producer that it received 
zero or de minimis net countervailable subsidies during the period of 
review;
    (ii) If the exporter or producer received a countervailable subsidy, 
calculations demonstrating that the amount of net countervailable 
subsidies received was de minimis during the period of review;
    (iii) If the exporter is not the producer of the subject 
merchandise, certifications from the suppliers and producers of the 
subject merchandise that those persons received zero or de minimis net 
countervailable subsidies during the period of the review; and
    (iv) A certification from the government of the affected country 
that the government did not provide the exporter (or the exporter's 
supplier) or

[[Page 228]]

producer with more than de minimis net countervailable subsidies during 
the period of review.
    (2) Application of country-wide subsidy rate. With the exception of 
assessment and cash deposit rates of zero determined under paragraph 
(k)(1) of this section, if, in the final results of an administrative 
review under this section of a countervailing duty order, the Secretary 
calculates a single country-wide subsidy rate under section 
777A(e)(2)(B) of the Act, that rate will supersede, for cash deposit 
purposes, all rates previously determined in the countervailing duty 
proceeding in question.
    (l) Exception from assessment in regional industry cases. For 
procedures relating to a request for the exception from the assessment 
of antidumping or countervailing duties in a regional industry case, see 
Sec. 351.212(f).



Sec. 351.214  New shipper reviews under section 751(a)(2)(B) of the Act.

    (a) Introduction. The URAA established a new procedure by which so-
called ``new shippers'' can obtain their own individual dumping margin 
or countervailable subsidy rate on an expedited basis. In general, a new 
shipper is an exporter or producer that did not export, and is not 
affiliated with an exporter or producer that did export, to the United 
States during the period of investigation. This section contains rules 
regarding requests for new shipper reviews and procedures for conducting 
such reviews. In addition, this section contains rules regarding 
requests for expedited reviews by noninvestigated exporters in certain 
countervailing duty proceedings and procedures for conducting such 
reviews.
    (b) Request for new shipper review--(1) Requirement of sale or 
export. Subject to the requirements of section 751(a)(2)(B) of the Act 
and this section, an exporter or producer may request a new shipper 
review if it has exported, or sold for export, subject merchandise to 
the United States.
    (2) Contents of request. A request for a new shipper review must 
contain the following:
    (i) If the person requesting the review is both the exporter and 
producer of the merchandise, a certification that the person requesting 
the review did not export subject merchandise to the United States (or, 
in the case of a regional industry, did not export the subject 
merchandise for sale in the region concerned) during the period of 
investigation;
    (ii) If the person requesting the review is the exporter, but not 
the producer, of the subject merchandise:
    (A) The certification described in paragraph (b)(2)(i) of this 
section; and
    (B) A certification from the person that produced or supplied the 
subject merchandise to the person requesting the review that that 
producer or supplier did not export the subject merchandise to the 
United States (or, in the case of a regional industry, did not export 
the subject merchandise for sale in the region concerned) during the 
period of investigation;
    (iii)(A) A certification that, since the investigation was 
initiated, such exporter or producer has never been affiliated with any 
exporter or producer who exported the subject merchandise to the United 
States (or in the case of a regional industry, who exported the subject 
merchandise for sale in the region concerned) during the period of 
investigation, including those not individually examined during the 
investigation;
    (B) In an antidumping proceeding involving imports from a nonmarket 
economy country, a certification that the export activities of such 
exporter or producer are not controlled by the central government;
    (iv) Documentation establishing:
    (A) The date on which subject merchandise of the exporter or 
producer making the request was first entered, or withdrawn from 
warehouse, for consumption, or, if the exporter or producer cannot 
establish the date of first entry, the date on which the exporter or 
producer first shipped the subject merchandise for export to the United 
States;
    (B) The volume of that and subsequent shipments; and
    (C) The date of the first sale to an unaffiliated customer in the 
United States; and
    (v) In the case of a review of a countervailing duty order, a 
certification

[[Page 229]]

that the exporter or producer has informed the government of the 
exporting country that the government will be required to provide a full 
response to the Department's questionnaire.
    (c) Deadline for requesting review. An exporter or producer may 
request a new shipper review within one year of the date referred to in 
paragraph (b)(2)(iv)(A) of this section.
    (d) Time for new shipper review--(1) In general. The Secretary will 
initiate a new shipper review under this section in the calendar month 
immediately following the anniversary month or the semiannual 
anniversary month if the request for the review is made during the 6-
month period ending with the end of the anniversary month or the 
semiannual anniversary month (whichever is applicable).
    (2) Semiannual anniversary month. The semiannual anniversary month 
is the calendar month which is 6 months after the anniversary month.
    (3) Example. An order is published in January. The anniversary month 
would be January, and the semiannual anniversary month would be July. If 
the Secretary received a request for a new shipper review at any time 
during the period February-July, the Secretary would initiate a new 
shipper review in August. If the Secretary received a request for a new 
shipper review at any time during the period August-January, the 
Secretary would initiate a new shipper review in February.
    (e) Suspension of liquidation; posting bond or security. When the 
Secretary initiates a new shipper review under this section, the 
Secretary will direct the Customs Service to suspend liquidation of any 
unliquidated entries of the subject merchandise from the relevant 
exporter or producer, and to allow, at the option of the importer, the 
posting, until the completion of the review, of a bond or security in 
lieu of a cash deposit for each entry of the subject merchandise.
    (f) Rescission of new shipper review--(1) Withdrawal of request for 
review. The Secretary may rescind a new shipper review under this 
section, in whole or in part, if a party that requested a review 
withdraws its request not later than 60 days after the date of 
publication of notice of initiation of the requested review.
    (2) Absence of entry and sale to an unaffiliated customer. The 
Secretary may rescind a new shipper review, in whole or in part, if the 
Secretary concludes that:
    (i) As of the end of the normal period of review referred to in 
paragraph (g) of this section, there has not been an entry and sale to 
an unaffiliated customer in the United States of subject merchandise; 
and
    (ii) An expansion of the normal period of review to include an entry 
and sale to an unaffiliated customer in the United States of subject 
merchandise would be likely to prevent the completion of the review 
within the time limits set forth in paragraph (i) of this section.
    (3) Notice of Rescission. If the Secretary rescinds a new shipper 
review (in whole or in part), the Secretary will publish in the Federal 
Register notice of ``Rescission of Antidumping (Countervailing Duty) New 
Shipper Review'' or, if appropriate, ``Partial Rescission of Antidumping 
(Countervailing Duty) New Shipper Review.''
    (g) Period of review--(1) Antidumping proceeding--(i) In general. 
Except as provided in paragraph (g)(1)(ii) of this section, in an 
antidumping proceeding, a new shipper review under this section normally 
will cover, as appropriate, entries, exports, or sales during the 
following time periods:
    (A) If the new shipper review was initiated in the month immediately 
following the anniversary month, the twelve-month period immediately 
preceding the anniversary month; or
    (B) If the new shipper review was initiated in the month immediately 
following the semiannual anniversary month, the period of review will be 
the six-month period immediately preceding the semiannual anniversary 
month.
    (ii) Exceptions. (A) If the Secretary initiates a new shipper review 
under this section in the month immediately following the first 
anniversary month, the review normally will cover, as appropriate, 
entries, exports, or sales during the period from the date of suspension 
of liquidation under this part

[[Page 230]]

to the end of the month immediately preceding the first anniversary 
month.
    (B) If the Secretary initiates a new shipper review under this 
section in the month immediately following the first semiannual 
anniversary month, the review normally will cover, as appropriate, 
entries, exports, or sales during the period from the date of suspension 
of liquidation under this part to the end of the month immediately 
preceding the first semiannual anniversary month.
    (2) Countervailing duty proceeding. In a countervailing duty 
proceeding, the period of review for a new shipper review under this 
section will be the same period as that specified in Sec. 351.213(e)(2) 
for an administrative review.
    (h) Procedures. The Secretary will conduct a new shipper review 
under this section in accordance with Sec. 351.221.
    (i) Time limits--(1) In general. Unless the time limit is waived 
under paragraph (j)(3) of this section, the Secretary will issue 
preliminary results of review (see Sec. 351.221(b)(4)) within 180 days 
after the date on which the new shipper review was initiated, and final 
results of review (see Sec. 351.221(b)(5)) within 90 days after the 
date on which the preliminary results were issued.
    (2) Exception. If the Secretary concludes that a new shipper review 
is extraordinarily complicated, the Secretary may extend the 180-day 
period to 300 days, and may extend the 90-day period to 150 days.
    (j) Multiple reviews. Notwithstanding any other provision of this 
subpart, if a review (or a request for a review) under Sec. 351.213 
(administrative review), Sec. 351.214 (new shipper review), Sec. 
351.215 (expedited antidumping review), or Sec. 351.216 (changed 
circumstances review) covers merchandise of an exporter or producer 
subject to a review (or to a request for a review) under this section, 
the Secretary may, after consulting with the exporter or producer:
    (1) Rescind, in whole or in part, a review in progress under this 
subpart;
    (2) Decline to initiate, in whole or in part, a review under this 
subpart; or
    (3) Where the requesting party agrees in writing to waive the time 
limits of paragraph (i) of this section, conduct concurrent reviews, in 
which case all other provisions of this section will continue to apply 
with respect to the exporter or producer.
    (k) Expedited reviews in countervailing duty proceedings for 
noninvestigated exporters--(1) Request for review. If, in a 
countervailing duty investigation, the Secretary limited the number of 
exporters or producers to be individually examined under section 
777A(e)(2)(A) of the Act, an exporter that the Secretary did not select 
for individual examination or that the Secretary did not accept as a 
voluntary respondent (see Sec. 351.204(d)) may request a review under 
this paragraph (k). An exporter must submit a request for review within 
30 days of the date of publication in the Federal Register of the 
countervailing duty order. A request must be accompanied by a 
certification that:
    (i) The requester exported the subject merchandise to the United 
States during the period of investigation;
    (ii) The requester is not affiliated with an exporter or producer 
that the Secretary individually examined in the investigation; and
    (iii) The requester has informed the government of the exporting 
country that the government will be required to provide a full response 
to the Department's questionnaire.
    (2) Initiation of review--(i) In general. The Secretary will 
initiate a review in the month following the month in which a request 
for review is due under paragraph (k)(1) of this section.
    (ii) Example. The Secretary publishes a countervailing duty order on 
January 15. An exporter would have to submit a request for a review by 
February 14. The Secretary would initiate a review in March.
    (3) Conduct of review. The Secretary will conduct a review under 
this paragraph (k) in accordance with the provisions of this section 
applicable to new shipper reviews, subject to the following exceptions:
    (i) The period of review will be the period of investigation used by 
the Secretary in the investigation that resulted in the publication of 
the countervailing duty order (see Sec. 351.204(b)(2));
    (ii) The Secretary will not permit the posting of a bond or security 
in lieu of

[[Page 231]]

a cash deposit under paragraph (e) of this section;
    (iii) The final results of a review under this paragraph (k) will 
not be the basis for the assessment of countervailing duties; and
    (iv) The Secretary may exclude from the countervailing duty order in 
question any exporter for which the Secretary determines an individual 
net countervailable subsidy rate of zero or de minimis (see Sec. 
351.204(e)(1)), provided that the Secretary has verified the information 
on which the exclusion is based.
    (l) Exception from assessment in regional industry cases. For 
procedures relating to a request for the exception from the assessment 
of antidumping or countervailing duties in a regional industry case, see 
Sec. 351.212(f).



Sec. 351.215  Expedited antidumping review and security in lieu of estimated 

duty under section 736(c) of the Act.

    (a) Introduction. Exporters and producers individually examined in 
an investigation normally cannot obtain a review of entries until an 
administrative review is requested. In addition, when an antidumping 
order is published, importers normally must begin to make a cash deposit 
of estimated antidumping duties upon the entry of subject merchandise. 
Section 736(c), however, establishes a special procedure under which 
exporters or producers may request an expedited review, and bonds, 
rather than cash deposits, may continue to be posted for a limited 
period of time if several criteria are satisfied. This section contains 
rules regarding requests for expedited antidumping reviews and the 
procedures applicable to such reviews.
    (b) In general. If the Secretary determines that the criteria of 
section 736(c)(1) of the Act are satisfied, the Secretary:
    (1) May permit, for not more than 90 days after the date of 
publication of an antidumping order, the posting of a bond or other 
security instead of the deposit of estimated antidumping duties required 
under section 736(a)(3) of the Act; and
    (2) Will initiate an expedited antidumping review. Before making 
such a determination, the Secretary will make business proprietary 
information available, and will provide interested parties with an 
opportunity to file written comments, in accordance with section 
736(c)(4) of the Act.
    (c) Procedures. The Secretary will conduct an expedited antidumping 
review under this section in accordance with Sec. 351.221.



Sec. 351.216  Changed circumstances review under section 751(b) of the Act.

    (a) Introduction. Section 751(b) of the Act provides for what is 
known as a ``changed circumstances'' review. This section contains rules 
regarding requests for changed circumstances reviews and procedures for 
conducting such reviews.
    (b) Requests for changed circumstances review. At any time, an 
interested party may request a changed circumstances review, under 
section 751(b) of the Act, of an order or a suspended investigation. 
Within 45 days after the date on which a request is filed, the Secretary 
will determine whether to initiate a changed circumstances review.
    (c) Limitation on changed circumstances review. Unless the Secretary 
finds that good cause exists, the Secretary will not review a final 
determination in an investigation (see section 705(a) or section 735(a) 
of the Act) or a suspended investigation (see section 704 or section 734 
of the Act) less than 24 months after the date of publication of notice 
of the final determination or the suspension of the investigation.
    (d) Procedures. If the Secretary decides that changed circumstances 
sufficient to warrant a review exist, the Secretary will conduct a 
changed circumstances review in accordance with Sec. 351.221.
    (e) Time limits. The Secretary will issue final results of review 
(see Sec. 351.221(b)(5)) within 270 days after the date on which the 
changed circumstances review is initiated, or within 45 days if all 
parties to the proceeding agree to the outcome of the review.

[[Page 232]]



Sec. 351.217  Reviews to implement results of subsidies enforcement proceeding 

under section 751(g) of the Act.

    (a) Introduction. Section 751(g) provides a mechanism for 
incorporating into an ongoing countervailing duty proceeding the results 
of certain subsidy-related disputes under the WTO Subsidies Agreement. 
Where the United States, in the WTO, has successfully challenged the 
``nonactionable'' (e.g., noncountervailable) status of a foreign 
subsidy, or where the United States has successfully challenged a 
prohibited or actionable subsidy, the Secretary may conduct a review to 
determine the effect, if any, of the successful outcome on an existing 
countervailing duty order or suspended investigation. This section 
contains rules regarding the initiation and conduct of reviews under 
section 751(g).
    (b) Violations of Article 8 of the Subsidies Agreement. If:
    (1) The Secretary receives notice from the Trade Representative of a 
violation of Article 8 of the Subsidies Agreement;
    (2) The Secretary has reason to believe that merchandise subject to 
an existing countervailing duty order or suspended investigation is 
benefiting from the subsidy or subsidy program found to have been in 
violation of Article 8; and
    (3) No administrative review is in progress, the Secretary will 
initiate an Article 8 violation review of the order or suspended 
investigation to determine whether the subject merchandise benefits from 
the subsidy or subsidy program found to have been in violation of 
Article 8 of the Subsidies Agreement.
    (c) Withdrawal of subsidy or imposition of countermeasures. If the 
Trade Representative notifies the Secretary that, under Article 4 or 
Article 7 of the Subsidies Agreement:
    (1)(i)(A) The United States has imposed countermeasures; and
    (B) Such countermeasures are based on the effects in the United 
States of imports of merchandise that is the subject of a countervailing 
duty order; or
    (ii) A WTO member country has withdrawn a countervailable subsidy 
provided with respect to merchandise subject to a countervailing duty 
order, then
    (2) The Secretary will initiate an Article 4/Article 7 review of the 
order to determine if the amount of estimated duty to be deposited 
should be adjusted or the order should be revoked.
    (d) Procedures. The Secretary will conduct an Article 8 violation 
review or an Article 4/Article 7 review under this section in accordance 
with Sec. 351.221.
    (e) Expedited reviews. The Secretary will conduct reviews under this 
section on an expedited basis.



Sec. 351.218  Sunset reviews under section 751(c) of the Act.

    (a) Introduction. The URAA added a new procedure, commonly referred 
to as ``sunset reviews,'' in section 751(c) of the Act. In general, no 
later than once every five years, the Secretary must determine whether 
dumping or countervailable subsidies would be likely to continue or 
resume if an order were revoked or a suspended investigation were 
terminated. The Commission must conduct a similar review to determine 
whether injury would be likely to continue or resume in the absence of 
an order or suspended investigation. If the determinations under section 
751(c) of both the Secretary and the Commission are affirmative, the 
order (or suspended investigation) remains in place. If either 
determination is negative, the order will be revoked (or the suspended 
investigation will be terminated). This section contains rules regarding 
the procedures for sunset reviews.
    (b) In general. The Secretary will conduct a sunset review, under 
section 751(c) of the Act, of each antidumping and countervailing duty 
order and suspended investigation, and, under section 752(b) or section 
752(c) (whichever is applicable), will determine whether revocation of 
an antidumping or countervailing duty order or termination of a 
suspended investigation would be likely to lead to continuation or 
recurrence of dumping or a countervailable subsidy.
    (c) Notice of initiation of review; early initiation--(1) Initial 
sunset review. No later than 30 days before the fifth anniversary date 
of an order or suspension of an investigation (see section 751(c)(1)

[[Page 233]]

of the Act), the Secretary will publish a notice of initiation of a 
sunset review (see section 751(c)(2) of the Act).
    (2) Subsequent sunset reviews. In the case of an order or suspended 
investigation that is continued following a sunset review initiated 
under paragraph (c)(1) of this section, no later than 30 days before the 
fifth anniversary of the date of the last determination by the 
Commission to continue the order or suspended investigation, the 
Secretary will publish a notice of initiation of a sunset review (see 
section 751(c)(2) of the Act).
    (3) Early initiation. The Secretary may publish a notice of 
initiation at an earlier date than the dates described in paragraph (c) 
(1) and (2) of this section if a domestic interested party demonstrates 
to the Secretary's satisfaction that an early initiation would promote 
administrative efficiency. However, if the Secretary determines that the 
domestic interested party that requested early initiation is a related 
party or an importer under section 771(4)(B) of the Act and Sec. 
351.203(e)(4), the Secretary may decline the request for early 
initiation.
    (4) Transition orders. The Secretary will initiate sunset reviews of 
transition orders, as defined in section 751(c)(6)(C) of the Act, in 
accordance with section 751(c)(6) of the Act.
    (d) Participation in sunset review--(1) Domestic interested party 
notification of intent to participate--(i) Filing of notice of intent to 
participate. Where a domestic interested party intends to participate in 
a sunset review, the interested party must, not later than 15 days after 
the date of publication in the Federal Register of the notice of 
initiation, file a notice of intent to participate in a sunset review 
with the Secretary.
    (ii) Contents of notice of intent to participate. Every notice of 
intent to participate in a sunset review must include a statement 
expressing the domestic interested party's intent to participate in the 
sunset review and the following information:
    (A) The name, address, and phone number of the domestic interested 
party (and its members, if applicable) that intends to participate in 
the sunset review and the statutory basis (under section 771(9) of the 
Act) for interested party status;
    (B) A statement indicating whether the domestic producer:
    (1) Is related to a foreign producer or to a foreign exporter under 
section 771(4)(B) of the Act; or
    (2) Is an importer of the subject merchandise or is related to such 
an importer under section 771(4)(B) of the Act;
    (C) The name, address, and phone number of legal counsel or other 
representative, if any;
    (D) The subject merchandise and country subject to the sunset 
review; and
    (E) The citation and date of publication in the Federal Register of 
the notice of initiation.
    (iii) Failure of domestic interested party to file notice of intent 
to participate in the sunset review. (A) A domestic interested party 
that does not file a notice of Intent to participate in the sunset 
review will be considered not willing to participate in the review and 
the Secretary will not accept or consider any unsolicited submissions 
from that party during the course of the review.
    (B) If no domestic interested party files a notice of intent to 
participate in the sunset review, the Secretary will:
    (1) Conclude that no domestic interested party has responded to the 
notice of initiation under section 751(c)(3)(A) of the Act;
    (2) Notify the International Trade Commission in writing as such 
normally not later than 20 days after the date of publication in the 
Federal Register of the notice of initiation; and
    (3) Not later than 90 days after the date of publication in the 
Federal Register of the Notice of Initiation, issue a final 
determination revoking the order or terminating the suspended 
investigation (see Sec. Sec. 351.221(c)(5)(ii) and 351.222(i)).
    (2) Waiver of response by a respondent interested party to a notice 
of initiation--(i) Filing of statement of waiver. A respondent 
interested party may waive participation in a sunset review before the 
Department under section 751(c)(4) of the Act by filing a statement of 
waiver with the Department, not later

[[Page 234]]

than 30 days after the date of publication in the Federal Register of 
the notice of initiation. If a respondent interested party waives 
participation in a sunset review before the Department, the Secretary 
will not accept or consider any unsolicited submissions from that party 
during the course of the review. Waiving participation in a sunset 
review before the Department will not affect a party's opportunity to 
participate in the sunset review conducted by the International Trade 
Commission.
    (ii) Contents of statement of waiver. Every statement of waiver must 
include a statement indicating that the respondent interested party 
waives participation in the sunset review before the Department; a 
statement that the respondent interested party is likely to dump or 
benefit from a countervailable subsidy (as the case may be) if the order 
is revoked or the investigation is terminated; in the case of a foreign 
government in a CVD sunset review, a statement that the government is 
likely to provide a countervailable subsidy if the order is revoked or 
the investigation is terminated; and the following information:
    (A) The name, address, and phone number of the respondent interested 
party waiving participation in the sunset review before the Department;
    (B) The name, address, and phone number of legal counsel or other 
representative, if any;
    (C) The subject merchandise and country subject to the sunset 
review; and
    (D) The citation and date of publication in the Federal Register of 
the notice of initiation.
    (iii) [Reserved]
    (iv) Waiver of participation by a foreign government in a CVD sunset 
review. Where a foreign government waives participation in a CVD sunset 
review under paragraph (d)(2)(i) or (d)(2)(iii) of this section, the 
Secretary will:
    (A) Conclude that respondent interested parties have provided 
inadequate response to the notice of initiation under section 
751(c)(3)(B) of the Act;
    (B) Notify the International Trade Commission and conduct an 
expedited sunset review and issue final results of review in accordance 
with paragraph (e)(1)(ii)(C) of this section; and
    (C) Base the final results of review on the facts available in 
accordance with 351.308(f).
    (3) Substantive response to a notice of initiation--(i) Time limit 
for substantive response to a notice of initiation. A complete 
substantive response to a notice of initiation, filed under this 
section, must be submitted to the Department not later than 30 days 
after the date of publication in the Federal Register of the notice of 
initiation.
    (ii) Required information to be filed by all interested parties in 
substantive response to a notice of initiation. Except as provided in 
paragraph (d)(3)(v)(A) of this section, each interested party that 
intends to participate in a sunset review must file a submission with 
the Department containing the following:
    (A) The name, address, and phone number of the interested party (and 
its members, if applicable) that intends to participate in the sunset 
review and the statutory basis (under section 771(9) of the Act) for 
interested party status;
    (B) The name, address, and phone number of legal counsel or other 
representative, if any;
    (C) The subject merchandise and country subject to the sunset 
review;
    (D) The citation and date of publication in the Federal Register of 
the notice of initiation;
    (E) A statement expressing the interested party's willingness to 
participate in the review by providing information requested by the 
Department, which must include a summary of that party's historical 
participation in any segment of the proceeding before the Department 
related to the subject merchandise;
    (F) A statement regarding the likely effects of revocation of the 
order or termination of the suspended investigation under review, which 
must include any factual information, argument, and reason to support 
such statement;
    (G) Factual information, argument, and reason concerning the dumping 
margin or countervailing duty rate, as applicable, that is likely to 
prevail if the Secretary revokes the order or terminates the suspended 
investigation, that the Department should select for a particular 
interested party(s);

[[Page 235]]

    (H) A summary of the Department's findings regarding duty 
absorption, if any, including a citation to the Federal Register notice 
in which the Department's findings are set forth; and
    (I) A description of any relevant scope clarification or ruling, 
including a circumvention determination, or changed circumstances 
determination issued by the Department during the proceeding with 
respect to the subject merchandise.
    (iii) Additional required information to be filed by respondent 
interested parties in substantive response to a notice of initiation. 
Except as provided in paragraph (d)(3)(v)(A) of this section, the 
submission from each respondent interested party that intends to 
participate in a sunset review must also contain the following:
    (A) That party's individual weighted average dumping margin or 
countervailing duty rate, as applicable, from the investigation and each 
subsequent completed administrative review, including the final margin 
or rate, as applicable, where such margin or rate was changed as a 
result of a final and conclusive court order;
    (B) For each of the five calendar years (or fiscal years, if more 
appropriate) preceding the year of publication of the notice of 
initiation, that party's volume and value (normally on an FOB basis) of 
exports of subject merchandise to the United States;
    (C) As applicable, for the calendar year (or fiscal year, if more 
appropriate) preceding the year of initiation of the dumping 
investigation, that party's volume and value (normally on an FOB basis) 
of exports of subject merchandise to the United States;
    (D) For each of the five calendar years (or fiscal years, if more 
appropriate) preceding the year of publication of the notice of 
initiation, on a volume basis (or value basis, if more appropriate), 
that party's percentage of the total exports of subject merchandise 
(defined in section 771(25) of the Act) to the United States; and
    (E) For each of the three most recent years, including the year of 
publication of the notice of initiation, that party's volume and value 
(normally on an FOB basis) of exports of subject merchandise to the 
United States during the two fiscal quarters as of the month preceding 
the month in which the notice of initiation was published.
    (iv) Optional information to be filed by interested parties in 
substantive response to a notice of initiation--(A) Showing good cause. 
An interested party may submit information or evidence to show good 
cause for the Secretary to consider other factors under section 
752(b)(2) (CVD) or section 752(c)(2) (AD) of the Act and paragraph 
(e)(2)(ii) of this section. Such information or evidence must be 
submitted in the party's substantive response to the notice of 
initiation under paragraph (d)(3) of this section.
    (B) Other information. A substantive response from an interested 
party under paragraph (d)(3) of this section also may contain any other 
relevant information or argument that the party would like the Secretary 
to consider.
    (v) Required information to be filed by a foreign government in 
substantive response to the notice of initiation in a CVD sunset 
review--(A) In general. The foreign government of a country subject to a 
CVD sunset review (see section 771(9)(B) of the Act) that intends to 
participate in a CVD sunset review must file a submission with the 
Department under paragraph (d)(3)(i) of this section containing the 
information required under paragraphs (d)(3)(ii) (A) through (E) of this 
section.
    (B) Additional required information to be filed by a foreign 
government in a CVD sunset review involving an order where the 
investigation was conducted on an aggregate basis. The submission from 
the foreign government of a country subject to a CVD sunset review, 
involving an order where the investigation was conducted on an aggregate 
basis, must also contain:
    (1) The information required under paragraphs (d)(3)(ii)(F), 
(d)(3)(ii)(G), and (d)(3)(ii)(I) of this section;
    (2) The countervailing duty rate from the investigation and each 
subsequent completed administrative review, including the final rate 
where such rate was changed as a result of a final and conclusive court 
order; and
    (3) For each of the five calendar years (or fiscal years, if more 
appropriate) preceding the year of publication of the

[[Page 236]]

notice of initiation, the volume and value (normally on an FOB basis) of 
exports of subject merchandise to the United States.
    (vi) Substantive responses from industrial users and consumers. An 
industrial user of the subject merchandise or a representative consumer 
organization, as described in section 777(h) of the Act, that intends to 
participate in a sunset review must file a submission with the 
Department under paragraph (d)(3)(i) of this section containing the 
information required under paragraphs (d)(3)(ii) (A) through (D) of this 
section and may submit other relevant information under paragraphs 
(d)(3)(ii) and (d)(3)(iv) of this section.
    (4) Rebuttal to substantive response to a notice of initiation. Any 
interested party that files a substantive response to a notice of 
initiation under paragraph (d)(3) of this section may file a rebuttal to 
any other party's substantive response to a notice of initiation not 
later than five days after the date the substantive response is filed 
with the Department. Except as provided in Sec. 351.309(e), the 
Secretary normally will not accept or consider any additional 
information from a party after the time for filing rebuttals has 
expired, unless the Secretary requests additional information from 
parties after determining to proceed to a full sunset review under 
paragraph (e)(2) of this section.
    (e) Conduct of sunset review--(1) Adequacy of response to a notice 
of initiation--(i) Adequacy of response from domestic interested 
parties--(A) In general. The Secretary will make its determination of 
adequacy of response on a case-by-case basis; however, the Secretary 
normally will conclude that domestic interested parties have provided 
adequate response to a notice of initiation where it receives a complete 
substantive response under paragraph (d)(3) of this section from at 
least one domestic interested party.
    (B) Disregarding response from a domestic interested party. In 
making its determination concerning the adequacy of response from 
domestic interested parties under paragraph (e)(1)(i)(A) of this 
section, the Secretary may disregard a response from a domestic 
producer:
    (1) Related to a foreign producer or to a foreign exporter under 
section 771(4)(B) of the Act; or
    (2) That is an importer of the subject merchandise or is related to 
such an importer under section 771(4)(B) of the Act (see paragraph 
(d)(1)(ii)(B) of this section).
    (C) Inadequate response from domestic interested parts. Where the 
Secretary determines to disregard a response from a domestic interested 
party(s) under paragraph (e)(1)(i)(A) or (e)(1)(i)(B) of this section 
and no other domestic interested party has filed a complete substantive 
response to the notice of initiation under paragraph (d)(3) of this 
section, the Secretary will:
    (1) Conclude that no domestic interested party has responded to the 
notice of initiation under section 751(c)(3)(A) of the Act;
    (2) Notify the International Trade Commission in writing as such 
normally not later than 40 days after the date of publication in the 
Federal Register of the Notice of Initiation; and
    (3) Not later than 90 days after the date of publication in the 
Federal Register of the Notice of Initiation, issue a final 
determination revoking the order or terminating the suspended 
investigation (see Sec. Sec. 351.221(c)(5)(ii) and 351.222(i)).
    (ii) Adequacy of response from respondent interested parties--(A) In 
general. The Secretary will makes its determination of adequacy of 
response on a case-by-case basis; however, the Secretary normally will 
conclude that respondent interested parties have provided adequate 
response to a notice of initiation where it receives complete 
substantive responses under paragraph (d)(3) of this section from 
respondent interested parties accounting on average for more than 50 
percent, on a volume basis (or value basis, if appropriate), of the 
total exports of subject merchandise to the United States over the five 
calendar years preceding the year of publication of the notice of 
initiation.
    (B) Failure of a foreign government to file a substantive response 
to a notice of initiation in a CVD sunset review. If a

[[Page 237]]

foreign government fails to file a complete substantive response to a 
notice of initiation in a CVD sunset review under paragraph (d)(3)(v) of 
this section or waives participation in a CVD sunset review under 
paragraph (d)(2)(i) of this section, the Secretary will:
    (1) Conclude that respondent interested parties have provided 
inadequate response to the Notice of Initiation under section 
751(c)(3)(B) of the Act;
    (2) Notify the International Trade Commission and conduct an 
expedited sunset review and issue final results of review in accordance 
with paragraph (e)(1)(ii)(C) of this section; and
    (3) Base the final results of review on the facts available in 
accordance with 351.308(f).
    (C) Inadequate response from respondent interested parties. If the 
Secretary determines that respondent interested parties provided 
inadequate response to a notice of initiation under paragraph 
(d)(2)(iv), (e)(1)(ii)(A), or (e)(1)(ii)(B) of this section, the 
Secretary:
    (1) Will notify the International Trade Commission in writing as 
such normally not later than 50 days after the date of publication in 
the Federal Register of the Notice of Initiation; and
    (2) Normally will conduct an expedited sunset review and, not later 
than 120 days after the date of publication in the Federal Register of 
the notice of initiation, issue final results of review based on the 
facts available in accordance with Sec. 351.308(f) (see section 
751(c)(3)(B) of the Act and Sec. 351.221(c)(5)(ii)).
    (2) Full sunset review upon adequate response from domestic and 
respondent interested parties--(i) In general. Normally, only where the 
Department receives adequate response to the notice of initiation from 
domestic interested parties under paragraph (e)(1)(i)(A) of this section 
and from respondent interested parties under paragraph (e)(1)(ii)(A) of 
this section, will the Department conduct a full sunset review. Even 
where the Department conducts a full sunset review, only under the most 
extraordinary circumstances will the Secretary rely on a countervailing 
duty rate or a dumping margin other than those it calculated and 
published in its prior determinations, and in no case will the Secretary 
calculate a net countervailable subsidy or a dumping margin for a new 
shipper in the context of a sunset review.
    (ii) [Reserved]
    (iii) Consideration of other factors under section 752(b)(2) (CVD) 
or section 752(c)(2) (AD) of the Act. The Secretary will consider other 
factors under section 752(b)(2) (CVD) or section 752(c)(2) (AD) of the 
Act if the Secretary determines that good cause to consider such other 
factors exists. The Secretary normally will consider such other factors 
only where it conducts a full sunset review under paragraph (e)(2)(i) of 
this section.
    (f) Time limits--(1) Preliminary results of full sunset review. The 
Department normally will issue its preliminary results in a full sunset 
review not later than 110 days after the date of publication in the 
Federal Register of the notice of initiation.
    (2) Verification--(i) In general. The Department will verify factual 
information relied upon in making its final determination normally only 
in a full sunset review (see section 782(i)(2) of the Act and Sec. 
351.307(b)(1)(iii)) and only where needed. The Department will conduct 
verification normally only if, in its preliminary results, the 
Department determines that revocation of the order or termination of the 
suspended investigation, as applicable, is not likely to lead to 
continuation or recurrence of a countervailable subsidy or dumping (see 
section 752(b) and section 752(c) of the Act), as applicable, and the 
Department's preliminary results are not based on countervailing duty 
rates or dumping margins, as applicable, determined in the investigation 
or subsequent reviews.
    (ii) Timing of verification. The Department normally will conduct 
verification, under paragraph (f)(2)(i) of this section and Sec. 
351.307, approximately 120 days after the date of publication in the 
Federal Register of the notice of initiation.
    (3) Final results of full sunset review and notification to the 
International Trade Commission--(i) Timing of final results of review 
and notification to the International Trade Commission. The Department 
normally will issue its final

[[Page 238]]

results in a full sunset review and notify the International Trade 
Commission of its results of review not later than 240 days after the 
date of publication in the Federal Register of the notice of initiation 
(see section 751(c)(5)(A) of the Act).
    (ii) Extension of time limit. If the Secretary determines that a 
full sunset review is extraordinarily complicated under section 
751(c)(5)(C) of the Act, the Secretary may extend the period for issuing 
final results by not more than 90 days (see section 751(c)(5)(B) of the 
Act).
    (4) Notice of continuation of an order or suspended investigation; 
notice of revocation of an order or termination of a suspended 
investigation. Except as provided in paragraph (d)(1)(iii)(B)(3) of this 
section and Sec. 351.222(i)(1)(i), the Department normally will issue 
its determination to continue an order or suspended investigation, or to 
revoke an order or terminate a suspended investigation, as applicable, 
not later than seven days after the date of publication in the Federal 
Register of the International Trade Commission's determination 
concluding the sunset review. The Department immediately thereafter will 
publish notice of its determination in the Federal Register.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13520, Mar. 20, 1998; 70 
FR 62064, Oct. 28, 2005]



Sec. 351.219  Reviews of countervailing duty orders in connection with an 

investigation under section 753 of the Act.

    (a) Introduction. Section 753 of the Act is a transition provision 
for countervailing duty orders that were issued under section 303 of the 
Act without an injury determination by the Commission. Under the 
Subsidies Agreement, one country may not impose countervailing duties on 
imports from another WTO Member without first making a determination 
that such imports have caused injury to a domestic industry. Section 753 
provides a mechanism for providing an injury test with respect to those 
``no-injury'' orders under section 303 that apply to merchandise from 
WTO Members. This section contains rules regarding requests for section 
753 investigations by a domestic interested party; and the procedures 
that the Department will follow in reviewing a countervailing duty order 
and providing the Commission with advice regarding the amount and nature 
of a countervailable subsidy.
    (b) Notification of domestic interested parties. The Secretary will 
notify directly domestic interested parties as soon as possible after 
the opportunity arises for requesting an investigation by the Commission 
under section 753 of the Act.
    (c) Initiation and conduct of section 753 review. Where the 
Secretary deems it necessary in order to provide to the Commission 
information on the amount or nature of a countervailable subsidy (see 
section 753(b)(2) of the Act), the Secretary may initiate a section 753 
review of the countervailing duty order in question. The Secretary will 
conduct a section 753 review in accordance with Sec. 351.221.



Sec. 351.220  Countervailing duty review at the direction of the President 

under section 762 of the Act.

    At the direction of the President or a designee, the Secretary will 
conduct a review under section 762(a)(1) of the Act to determine if a 
countervailable subsidy is being provided with respect to merchandise 
subject to an understanding or other kind of quantitative restriction 
agreement accepted under section 704(a)(2) or section 704(c)(3) of the 
Act. The Secretary will conduct a review under this section in 
accordance with Sec. 351.221. If the Secretary's final results of 
review under this section and the Commission's final results of review 
under section 762(a)(2) of the Act are both affirmative, the Secretary 
will issue a countervailing duty order and order suspension of 
liquidation in accordance with section 762(b) of the Act.



Sec. 351.221  Review procedures.

    (a) Introduction. The procedures for reviews are similar to those 
followed in investigations. This section details the procedures 
applicable to reviews in general, as well as procedures that are unique 
to certain types of reviews.

[[Page 239]]

    (b) In general. After receipt of a timely request for a review, or 
on the Secretary's own initiative when appropriate, the Secretary will:
    (1) Promptly publish in the Federal Register notice of initiation of 
the review;
    (2) Before or after publication of notice of initiation of the 
review, send to appropriate interested parties or other persons (or, if 
appropriate, a sample of interested parties or other persons) 
questionnaires requesting factual information for the review;
    (3) Conduct, if appropriate, a verification under Sec. 351.307;
    (4) Issue preliminary results of review, based on the available 
information, and publish in the Federal Register notice of the 
preliminary results of review that include:
    (i) The rates determined, if the review involved the determination 
of rates; and
    (ii) An invitation for argument consistent with Sec. 351.309;
    (5) Issue final results of review and publish in the Federal 
Register notice of the final results of review that include the rates 
determined, if the review involved the determination of rates;
    (6) If the type of review in question involves a determination as to 
the amount of duties to be assessed, promptly after publication of the 
notice of final results instruct the Customs Service to assess 
antidumping duties or countervailing duties (whichever is applicable) on 
the subject merchandise covered by the review, except as otherwise 
provided in Sec. 351.106(c) with respect to de minimis duties; and
    (7) If the review involves a revision to the cash deposit rates for 
estimated antidumping duties or countervailing duties, instruct the 
Customs Service to collect cash deposits at the revised rates on future 
entries.
    (c) Special rules--(1) Administrative reviews and new shipper 
reviews. In an administrative review under section 751(a)(1) of the Act 
and Sec. 351.213 and a new shipper review under section 751(a)(2)(B) of 
the Act and Sec. 351.214 the Secretary:
    (i) Will publish the notice of initiation of the review no later 
than the last day of the month following the anniversary month or the 
semiannual anniversary month (as the case may be); and
    (ii) Normally will send questionnaires no later than 30 days after 
the date of publication of the notice of initiation.
    (2) Expedited antidumping review. In an expedited antidumping review 
under section 736(c) of the Act and Sec. 351.215, the Secretary:
    (i) Will include in the notice of initiation of the review an 
invitation for argument consistent with Sec. 351.309, and a statement 
that the Secretary is permitting the posting of a bond or other security 
instead of a cash deposit of estimated antidumping duties;
    (ii) Will instruct the Customs Service to accept, instead of the 
cash deposit of estimated antidumping duties under section 736(a)(3) of 
the Act, a bond for each entry of the subject merchandise entered, or 
withdrawn from warehouse, for consumption on or after the date of 
publication of the notice of initiation of the investigation and through 
the date not later than 90 days after the date of publication of the 
order; and
    (iii) Will not issue preliminary results of review.
    (3) Changed circumstances review. In a changed circumstances review 
under section 751(b) of the Act and Sec. 351.216, the Secretary:
    (i) Will include in the preliminary results of review and the final 
results of review a description of any action the Secretary proposed 
based on the preliminary or final results;
    (ii) May combine the notice of initiation of the review and the 
preliminary results of review in a single notice if the Secretary 
concludes that expedited action is warranted; and
    (iii) May refrain from issuing questionnaires under paragraph (b)(2) 
of this section.
    (4) Article 8 Violation review and Article 4/Article 7 review. In an 
Article 8 Violation review or an Article 4/Article 7 review under 
section 751(g) of the Act and Sec. 351.217, the Secretary:
    (i) Will include in the notice of initiation of the review an 
invitation for argument consistent with Sec. 351.309 and will notify 
all parties to the proceeding at the time the Secretary initiates the 
review;

[[Page 240]]

    (ii) Will not issue preliminary results of review; and
    (iii) In the final results of review will indicate the amount, if 
any, by which the estimated duty to be deposited should be adjusted, 
and, in an Article 4/Article 7 review, any action, including revocation, 
that the Secretary will take based on the final results.
    (5) Sunset review. In a sunset review under section 751(c) of the 
Act and Sec. 351.218:
    (i) The notice of initiation of a sunset review will contain a 
request for the information described in Sec. 351.218(d); and
    (ii) The Secretary, without issuing preliminary results of review, 
may issue final results of review under paragraphs (3) or (4) of 
subsection 751(c) of the Act if the conditions of those paragraphs are 
satisfied.
    (6) Section 753 review. In a section 753 review under section 753 of 
the Act and Sec. 351.219, the Secretary:
    (i) Will include in the notice of initiation of the review an 
invitation for argument consistent with Sec. 351.309, and will notify 
all parties to the proceeding at the time the Secretary initiates the 
review; and
    (ii) May decline to issue preliminary results of review.
    (7) Countervailing duty review at the direction of the President. In 
a countervailing duty review at the direction of the President under 
section 762 of the Act and Sec. 351.220, the Secretary will:
    (i) Include in the notice of initiation of the review a description 
of the merchandise, the period under review, and a summary of the 
available information which, if accurate, would support the imposition 
of countervailing duties;
    (ii) Notify the Commission of the initiation of the review and the 
preliminary results of review;
    (iii) Include in the preliminary results of review the 
countervailable subsidy, if any, during the period of review and a 
description of official changes in the subsidy programs made by the 
government of the affected country that affect the estimated 
countervailable subsidy; and
    (iv) Include in the final results of review the countervailable 
subsidy, if any, during the period of review and a description of 
official changes in the subsidy programs, made by the government of the 
affected country not later than the date of publication of the notice of 
preliminary results, that affect the estimated countervailable subsidy.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13525, Mar. 20, 1998]



Sec. 351.222  Revocation of orders; termination of suspended investigations.

    (a) Introduction. ``Revocation'' is a term of art that refers to the 
end of an antidumping or countervailing proceeding in which an order has 
been issued. ``Termination'' is the companion term for the end of a 
proceeding in which the investigation was suspended due to the 
acceptance of a suspension agreement. Generally, a revocation or 
termination may occur only after the Department or the Commission have 
conducted one or more reviews under section 751 of the Act. This section 
contains rules regarding requirements for a revocation or termination; 
and procedures that the Department will follow in determining whether to 
revoke an order or terminate a suspended investigation.
    (b) Revocation or termination based on absence of dumping. (1)(i) In 
determining whether to revoke an antidumping duty order or terminate a 
suspended antidumping investigation, the Secretary will consider:
    (A) Whether all exporters and producers covered at the time of 
revocation by the order or the suspension agreement have sold the 
subject merchandise at not less than normal value for a period of at 
least three consecutive years; and
    (B) Whether the continued application of the antidumping duty order 
is otherwise necessary to offset dumping.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (b)(1)(i)(A) and (B) of this section, that the antidumping 
duty order or suspension of the antidumping duty investigation is no 
longer warranted, the Secretary will revoke the order or terminate the 
investigation.
    (2)(i) In determining whether to revoke an antidumping duty order in 
part, the Secretary will consider:
    (A) Whether one or more exporters or producers covered by the order 
have

[[Page 241]]

sold the merchandise at not less than normal value for a period of at 
least three consecutive years;
    (B) Whether, for any exporter or producer that the Secretary 
previously has determined to have sold the subject merchandise at less 
than normal value, the exporter or producer agrees in writing to its 
immediate reinstatement in the order, as long as any exporter or 
producer is subject to the order, if the Secretary concludes that the 
exporter or producer, subsequent to the revocation, sold the subject 
merchandise at less than normal value; and
    (C) Whether the continued application of the antidumping duty order 
is otherwise necessary to offset dumping.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (b)(2)(i)(A) through (C) of this section, that the 
antidumping duty order as to those producers or exporters is no longer 
warranted, the Secretary will revoke the order as to those producers or 
exporters.
    (3) Revocation of nonproducing exporter. In the case of an exporter 
that is not the producer of subject merchandise, the Secretary normally 
will revoke an order in part under paragraph (b)(2) of this section only 
with respect to subject merchandise produced or supplied by those 
companies that supplied the exporter during the time period that formed 
the basis for the revocation.
    (c) Revocation or termination based on absence of countervailable 
subsidy. (1)(i) In determining whether to revoke a countervailing duty 
order or terminate a suspended countervailing duty investigation, the 
Secretary will consider:
    (A) Whether the government of the affected country has eliminated 
all countervailable subsidies on the subject merchandise by abolishing 
for the subject merchandise, for a period of at least three consecutive 
years, all programs that the Secretary has found countervailable;
    (B) Whether exporters and producers of the subject merchandise are 
continuing to receive any net countervailable subsidy from an abolished 
program referred to in paragraph (c)(1)(i)(A) of this section; and
    (C) Whether the continued application of the countervailing duty 
order or suspension of countervailing duty investigation is otherwise 
necessary to offset subsidization.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (c)(1)(i)(A) through (C) of this section, that the 
countervailing duty order or suspension of the countervailing duty 
investigation is no longer warranted, the Secretary will revoke the 
order or terminate the suspended investigation.
    (2)(i) In determining whether to revoke a countervailing duty order 
or terminate a suspended countervailing duty investigation, the 
Secretary will consider:
    (A) Whether all exporters and producers covered at the time of 
revocation by the order or the suspension agreement have not applied for 
or received any net countervailable subsidy on the subject merchandise 
for a period of at least five consecutive years; and
    (B) Whether the continued application of the countervailing duty 
order or suspension of the countervailing duty investigation is 
otherwise necessary to offset subsidization.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (c)(2)(i)(A) and (B) of this section, that the countervailing 
duty order or the suspension of the countervailing duty investigation is 
no longer warranted, the Secretary will revoke the order or terminate 
the suspended investigation.
    (3)(i) In determining whether to revoke a countervailing duty order 
in part, the Secretary will consider:
    (A) Whether one or more exporters or producers covered by the order 
have not applied for or received any net countervailable subsidy on the 
subject merchandise for a period of at least five consecutive years;
    (B) Whether, for any exporter or producer that the Secretary 
previously has determined to have received any net countervailable 
subsidy on the subject merchandise, the exporter or producer agrees in 
writing to their immediate reinstatement in the order, as long as any 
exporter or producer is subject to the order, if the Secretary concludes 
that the exporter or producer, subsequent to the revocation, has 
received any net countervailable subsidy on the subject merchandise; and

[[Page 242]]

    (C) Whether the continued application of the countervailing duty 
order is otherwise necessary to offset subsidization.
    (ii) If the Secretary determines, based upon the criteria in 
paragraphs (c)(3)(i)(A) through (C) of this section, that the 
countervailing duty order as to those exporters or producers is no 
longer warranted, the Secretary will revoke the order as to those 
exporters or producers.
    (4) Revocation of nonproducing exporter. In the case of an exporter 
that is not the producer of subject merchandise, the Secretary normally 
will revoke an order in part under paragraph (c)(3) of this section only 
with respect to subject merchandise produced or supplied by those 
companies that supplied the exporter during the time period that formed 
the basis for the revocation.
    (d) Treatment of unreviewed intervening years--(1) In general. The 
Secretary will not revoke an order or terminate a suspended 
investigation under paragraphs (b) or (c) of this section unless the 
Secretary has conducted a review under this subpart of the first and 
third (or fifth) years of the three-and five-year consecutive time 
periods referred to in those paragraphs. The Secretary need not have 
conducted a review of an intervening year (see paragraph (d)(2) of this 
section). However, except in the case of a revocation or termination 
under paragraph (c)(1) of this section (government abolition of 
countervailable subsidy programs), before revoking an order or 
terminating a suspended investigation, the Secretary must be satisfied 
that, during each of the three (or five) years, there were exports to 
the United States in commercial quantities of the subject merchandise to 
which a revocation or termination will apply.
    (2) Intervening year. ``Intervening year'' means any year between 
the first and final year of the consecutive period on which revocation 
or termination is conditioned.
    (e) Request for revocation or termination--(1) Antidumping 
proceeding. During the third and subsequent annual anniversary months of 
the publication of an antidumping order or suspension of an antidumping 
investigation, an exporter or producer may request in writing that the 
Secretary revoke an order or terminate a suspended investigation under 
paragraph (b) of this section with regard to that person if the person 
submits with the request:
    (i) The person's certification that the person sold the subject 
merchandise at not less than normal value during the period of review 
described in Sec. 351.213(e)(1), and that in the future the person will 
not sell the merchandise at less than normal value;
    (ii) The person's certification that, during each of the consecutive 
years referred to in paragraph (b) of this section, the person sold the 
subject merchandise to the United States in commercial quantities; and
    (iii) If applicable, the agreement regarding reinstatement in the 
order or suspended investigation described in paragraph (b)(2)(iii) of 
this section.
    (2) Countervailing duty proceeding. (i) During the third and 
subsequent annual anniversary months of the publication of a 
countervailing duty order or suspension of a countervailing duty 
investigation, the government of the affected country may request in 
writing that the Secretary revoke an order or terminate a suspended 
investigation under paragraph (c)(1) of this section if the government 
submits with the request its certification that it has satisfied, during 
the period of review described in Sec. 351.213(e)(2), the requirements 
of paragraph (c)(1)(i) of this section regarding the abolition of 
countervailable subsidy programs, and that it will not reinstate for the 
subject merchandise those programs or substitute other countervailable 
subsidy programs;
    (ii) During the fifth and subsequent annual anniversary months of 
the publication of a countervailing duty order or suspended 
countervailing duty investigation, the government of the affected 
country may request in writing that the Secretary revoke an order or 
terminate a suspended investigation under paragraph (c)(2) of this 
section if the government submits with the request:
    (A) Certifications for all exporters and producers covered by the 
order or suspension agreement that they have not applied for or received 
any net

[[Page 243]]

countervailable subsidy on the subject merchandise for a period of at 
least five consecutive years (see paragraph (c)(2)(i) of this section);
    (B) Those exporters' and producers' certifications that they will 
not apply for or receive any net countervailable subsidy on the subject 
merchandise from any program the Secretary has found countervailable in 
any proceeding involving the affected country or from other 
countervailable programs (see paragraph (c)(2)(ii) of this section); and
    (C) A certification from each exporter or producer that, during each 
of the consecutive years referred to in paragraph (c)(2) of this 
section, that person sold the subject merchandise to the United States 
in commercial quantities; or
    (iii) During the fifth and subsequent annual anniversary months of 
the publication of a countervailing duty order, an exporter or producer 
may request in writing that the Secretary revoke the order with regard 
to that person if the person submits with the request:
    (A) A certification that the person has not applied for or received 
any net countervailable subsidy on the subject merchandise for a period 
of at least five consecutive years (see paragraph (c)(3)(i) of this 
section), including calculations demonstrating the basis for the 
conclusion that the person received zero or de minimis net 
countervailable subsidies during the review period of the administrative 
review in connection with which the person has submitted the request for 
revocation;
    (B) A certification that the person will not apply for or receive 
any net countervailable subsidy on the subject merchandise from any 
program the Secretary has found countervailable in any proceeding 
involving the affected country or from other countervailable programs 
(see paragraph (c)(3)(ii) of this section);
    (C) The person's certification that, during each of the consecutive 
years referred to in paragraph (c)(3) of this section, the person sold 
the subject merchandise to the United States in commercial quantities; 
and
    (D) The agreement described in paragraph (c)(3)(iii) of this section 
(reinstatement in order).
    (f) Procedures. (1) Upon receipt of a timely request for revocation 
or termination under paragraph (e) of this section, the Secretary will 
consider the request as including a request for an administrative review 
and will initiate and conduct a review under Sec. 351.213.
    (2) In addition to the requirements of Sec. 351.221 regarding the 
conduct of an administrative review, the Secretary will:
    (i) Publish with the notice of initiation under Sec. 351.221(b)(1), 
notice of ``Request for Revocation of Order (in part)'' or ``Request for 
Termination of Suspended Investigation'' (whichever is applicable);
    (ii) Conduct a verification under Sec. 351.307;
    (iii) Include in the preliminary results of review under Sec. 
351.221(b)(4) the Secretary's decision whether there is a reasonable 
basis to believe that the requirements for revocation or termination are 
met;
    (iv) If the Secretary decides that there is a reasonable basis to 
believe that the requirements for revocation or termination are met, 
publish with the notice of preliminary results of review under Sec. 
351.221(b)(4) notice of ``Intent to Revoke Order (in Part)'' or ``Intent 
to Terminate Suspended Investigation'' (whichever is applicable);
    (v) Include in the final results of review under Sec. 351.221(b)(5) 
the Secretary's final decision whether the requirements for revocation 
or termination are met; and
    (vi) If the Secretary determines that the requirements for 
revocation or termination are met, publish with the notice of final 
results of review under Sec. 351.221(b)(5) notice of ``Revocation of 
Order (in Part)'' or ``Termination of Suspended Investigation'' 
(whichever is applicable).
    (3) If the Secretary revokes an order in whole or in part, the 
Secretary will order the suspension of liquidation terminated for the 
merchandise covered by the revocation on the first day after the period 
under review, and will instruct the Customs Service to release any cash 
deposit or bond.
    (g) Revocation or termination based on changed circumstances. (1) 
The Secretary may revoke an order, in whole

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or in part, or terminate a suspended investigation if the Secretary 
concludes that:
    (i) Producers accounting for substantially all of the production of 
the domestic like product to which the order (or the part of the order 
to be revoked) or suspended investigation pertains have expressed a lack 
of interest in the order, in whole or in part, or suspended 
investigation (see section 782(h) of the Act); or
    (ii) Other changed circumstances sufficient to warrant revocation or 
termination exist.
    (2) If at any time the Secretary concludes from the available 
information that changed circumstances sufficient to warrant revocation 
or termination may exist, the Secretary will conduct a changed 
circumstances review under Sec. 351.216.
    (3) In addition to the requirements of Sec. 351.221, the Secretary 
will:
    (i) Publish with the notice of initiation (see Sec. 353.221(b)(1), 
notice of ``Consideration of Revocation of Order (in Part)'' or 
``Consideration of Termination of Suspended Investigation'' (whichever 
is applicable);
    (ii) If the Secretary's conclusion regarding the possible existence 
of changed circumstances (see paragraph (g)(2) of this section), is not 
based on a request, the Secretary, not later than the date of 
publication of the notice of ``Consideration of Revocation of Order (in 
Part)'' or ``Consideration of Termination of Suspended Investigation'' 
(whichever is applicable) (see paragraph (g)(3)(i) of this section), 
will serve written notice of the consideration of revocation or 
termination on each interested party listed on the Department's service 
list and on any other person that the Secretary has reason to believe is 
a domestic interested party;
    (iii) Conduct a verification, if appropriate, under Sec. 351.307;
    (iv) Include in the preliminary results of review, under Sec. 
351.221(b)(4), the Secretary's decision whether there is a reasonable 
basis to believe that changed circumstances warrant revocation or 
termination;
    (v) If the Secretary's preliminary decision is that changed 
circumstances warrant revocation or termination, publish with the notice 
of preliminary results of review, under Sec. 351.221(b)(4), notice of 
``Intent to Revoke Order (in Part)'' or ``Intent to Terminate Suspended 
Investigation'' (whichever is applicable);
    (vi) Include in the final results of review, under Sec. 
351.221(b)(5), the Secretary's final decision whether changed 
circumstances warrant revocation or termination; and
    (vii) If the Secretary's determines that changed circumstances 
warrant revocation or termination, publish with the notice of final 
results of review, under Sec. 351.221(b)(5), notice of ``Revocation of 
Order (in Part)'' or ``Termination of Suspended Investigation'' 
(whichever is applicable).
    (4) If the Secretary revokes an order, in whole or in part, under 
paragraph (g) of this section, the Secretary will order the suspension 
of liquidation ended for the merchandise covered by the revocation on 
the effective date of the notice of revocation, and will instruct the 
Customs Service to release any cash deposit or bond.
    (h) Revocation or termination based on injury reconsideration. If 
the Commission determines in a changed circumstances review under 
section 751(b)(2) of the Act that the revocation of an order or 
termination of a suspended investigation is not likely to lead to 
continuation or recurrence of material injury, the Secretary will 
revoke, in whole or in part, the order or terminate the suspended 
investigation, and will publish in the Federal Register notice of 
``Revocation of Order (in Part)'' or ``Termination of Suspended 
Investigation'' (whichever is applicable).
    (i) Revocation or termination based on sunset review--(1) 
Circumstances under which the Secretary will revoke an order or 
terminate a suspended investigation. In the case of a sunset review 
under Sec. 351.218, the Secretary will revoke an order or terminate a 
suspended investigation:
    (i) Under section 751(c)(3)(A) of the Act, where no domestic 
interested party files a Notice of Intent to Participate in the sunset 
review under Sec. 351.218(d)(1), or where the Secretary determines 
under Sec. 351.218(e)(1)(i)(C) that domestic interested parties have 
provided inadequate response to the

[[Page 245]]

Notice of Initiation, not later than 90 days after the date of 
publication in the Federal Register of the notice of initiation;
    (ii) Under section 751(d)(2) of the Act, where the Secretary 
determines that revocation or termination is not likely to lead to 
continuation or recurrence of a countervailable subsidy or dumping (see 
section 752(b) and section 752(c) of the Act), as applicable, not later 
than 240 days (or 330 days where a full sunset review is fully extended) 
after the date of publication in the Federal Register of the notice of 
initiation; or
    (iii) Under section 751(d)(2) of the Act, where the International 
Trade Commission makes a determination, under section 752(a) of the Act, 
that revocation or termination is not likely to lead to continuation or 
recurrence of material injury, not later than seven days after the date 
of publication in the Federal Register of the International Trade 
Commission's determination concluding the sunset review.
    (2) Effective date of revocation--(i) In general. Except as provided 
in paragraph (i)(2)(ii) of this section, where the Secretary revokes an 
order or terminates a suspended investigation, pursuant to section 
751(c)(3)(A) or section 751(d)(2) of the Act (see paragraph (i)(1) of 
this section), the revocation or termination will be effective on the 
fifth anniversary of the date of publication in the Federal Register of 
the order or suspended investigation, as applicable. This paragraph also 
applies to subsequent sunset reviews of transition orders (see paragraph 
(i)(2)(ii) of this section and section 751(c)(6)(A)(iii) of the Act).
    (ii) Transition orders. Where the Secretary revokes a transition 
order (defined in section 751(c)(6)(C) of the Act) pursuant to section 
751(c)(3)(A) or section 751(d)(2) of the Act (see paragraph (i)(1) of 
this section), the revocation or termination will be effective on 
January 1, 2000. This paragraph does not apply to subsequent sunset 
reviews of transition orders (see section 751(c)(6)(A)(iii) of the Act).
    (j) Revocation of countervailing duty order based on Commission 
negative determination under section 753 of the Act. The Secretary will 
revoke a countervailing duty order, and will order the refund, with 
interest, of any estimated countervailing duties collected during the 
period liquidation was suspended under section 753(a)(4) of the Act upon 
being notified by the Commission that:
    (1) The Commission has determined that an industry in the United 
States is not likely to be materially injured if the countervailing duty 
order in question is revoked (see section 753(a)(1) of the Act); or
    (2) A domestic interested party did not make a timely request for an 
investigation under section 753(a) of the Act (see section 753(a)(3) of 
the Act).
    (k) Revocation based on Article 4/Article 7 review--(1) In general. 
The Secretary may revoke a countervailing duty order, in whole or in 
part, following an Article 4/Article 7 review under Sec. 351.217(c), 
due to the imposition of countermeasures by the United States or the 
withdrawal of a countervailable subsidy by a WTO member country (see 
section 751(g)(2) of the Act).
    (2) Additional Requirements. In addition to the requirements of 
Sec. 351.221, if the Secretary determines to revoke an order as the 
result of an Article 4/Article 7 review, the Secretary will:
    (i) Conduct a verification, if appropriate, under Sec. 351.307;
    (ii) Include in the final results of review, under Sec. 
351.221(b)(5), the Secretary's final decision whether the order should 
be revoked;
    (iii) If the Secretary's final decision is that the order should be 
revoked:
    (A) Determine the effective date of the revocation;
    (B) Publish with the notice of final results of review, under Sec. 
351.221(b)(5), a notice of ``Revocation of Order (in Part),'' that will 
include the effective date of the revocation; and
    (C) Order any suspension of liquidation ended for merchandise 
covered by the revocation that was entered on or after the effective 
date of the revocation, and instruct the Customs Service to release any 
cash deposit or bond.
    (l) Revocation under section 129. The Secretary may revoke an order 
under section 129 of the URAA (implementation of WTO dispute 
settlement).
    (m) Transition rule. In the case of time periods that, under section 
291(a)(2) of the URAA, are subject to review under the provisions of the 
Act

[[Page 246]]

prior to its amendment by the URAA, and for purposes of determining 
whether the three-or five-year requirements of paragraphs (b) and (c) of 
this section are satisfied, the following rules will apply:
    (1) Antidumping proceedings. The Secretary will consider sales at 
not less than foreign market value to be equivalent to sales at not less 
than normal value.
    (2) Countervailing duty proceedings. The Secretary will consider the 
absence of a subsidy, as defined in section 771(5) of the Act prior to 
its amendment by the URAA, to be equivalent to the absence of a 
countervailable subsidy, as defined in section 771(5) of the Act, as 
amended by the URAA.
    (n) Cross-reference. For the treatment in a subsequent investigation 
of business proprietary information submitted to the Secretary in 
connection with a changed circumstances review under Sec. 351.216 or a 
sunset review under Sec. 351.218 that results in the revocation of an 
order (or termination of a suspended investigation), see section 
777(b)(3) of the Act.

[62 FR 27379, May 19, 1997, as amended at 63 FR 13523, Mar. 20, 1998; 64 
FR 51240, Sept. 22, 1999]



Sec. 351.223  Procedures for initiation of downstream product monitoring.

    (a) Introduction. Section 780 of the Act establishes a mechanism for 
monitoring imports of ``downstream products.'' In general, section 780 
is aimed at situations where, following the issuance of an antidumping 
or countervailing duty order on a product that is used as a component in 
another product, exports to the United States of that other (or 
``downstream'') product increase. Although the Department is responsible 
for determining whether trade in the downstream product should be 
monitored, the Commission is responsible for conducting the actual 
monitoring. The Commission must report the results of its monitoring to 
the Department, and the Department must consider the reports in 
determining whether to self-initiate an antidumping or countervailing 
duty investigation on the downstream product. This section contains 
rules regarding applications for the initiation of downstream product 
monitoring and decisions regarding such applications.
    (b) Contents of application. An application to designate a 
downstream product for monitoring under section 780 of the Act must 
contain the following information, to the extent reasonably available to 
the applicant:
    (1) The name and address of the person requesting the monitoring and 
a description of the article it produces which is the basis for filing 
its application;
    (2) A detailed description of the downstream product in question;
    (3) A detailed description of the component product that is 
incorporated into the downstream product, including the value of the 
component part in relation to the value of the downstream product, and 
the extent to which the component part has been substantially 
transformed as a result of its incorporation into the downstream 
product;
    (4) The name of the country of production of both the downstream and 
component products and the name of any intermediate country from which 
the merchandise is imported;
    (5) The name and address of all known producers of component parts 
and downstream products in the relevant countries and a detailed 
description of any relationship between such producers;
    (6) Whether the component part is already subject to monitoring to 
aid in the enforcement of a bilateral arrangement within the meaning of 
section 804 of the Trade and Tariff Act of 1984;
    (7) A list of all antidumping or countervailing duty investigations 
that have been suspended, or antidumping or countervailing duty orders 
that have been issued, on merchandise that is related to the component 
part and that is manufactured in the same foreign country in which the 
component part is manufactured;
    (8) A list of all antidumping or countervailing duty investigations 
that have been suspended, or antidumping or countervailing duty orders 
that have been issued, on merchandise that is manufactured or exported 
by the

[[Page 247]]

manufacturer or exporter of the component part and that is similar in 
description and use to the component part; and
    (9) The reasons for suspecting that the imposition of antidumping or 
countervailing duties has resulted in a diversion of exports of the 
component part into increased production and exportation to the United 
States of the downstream product.
    (c) Determination of sufficiency of application. Within 14 days 
after an application is filed under paragraph (b) of this section, the 
Secretary will rule on the sufficiency of the application by making the 
determinations described in section 780(a)(2) of the Act.
    (d) Notice of Determination. The Secretary will publish in the 
Federal Register notice of each affirmative or negative ``monitoring'' 
determination made under section 780(a)(2) of the Act, and if the 
determination under section 780(a)(2)(A) of the Act and a determination 
made under any clause of section 780(a)(2)(B) of the Act are 
affirmative, will transmit to the Commission a copy of the determination 
and the application. The Secretary will make available to the 
Commission, and to its employees directly involved in the monitoring, 
the information upon which the Secretary based the initiation.



Sec. 351.224  Disclosure of calculations and procedures for the correction of 

ministerial errors.

    (a) Introduction. In the interests of transparency, the Department 
has long had a practice of providing parties with the details of its 
antidumping and countervailing duty calculations. This practice has come 
to be referred to as a ``disclosure.'' This section contains rules 
relating to requests for disclosure and procedures for correcting 
ministerial errors.
    (b) Disclosure. The Secretary will disclose to a party to the 
proceeding calculations performed, if any, in connection with a 
preliminary determination under section 703(b) or section 733(b) of the 
Act, a final determination under section 705(a) or section 735(a) of the 
Act, and a final results of a review under section 736(c), section 751, 
or section 753 of the Act, normally within five days after the date of 
any public announcement or, if there is no public announcement of, 
within five days after the date of publication of, the preliminary 
determination, final determination, or final results of review 
(whichever is applicable). The Secretary will disclose to a party to the 
proceeding calculations performed, if any, in connection with a 
preliminary results of review under section 751 or section 753 of the 
Act, normally not later than ten days after the date of the public 
announcement of, or, if there is no public announcement, within five 
days after the date of publication of, the preliminary results of 
review.
    (c) Comments regarding ministerial errors--(1) In general. A party 
to the proceeding to whom the Secretary has disclosed calculations 
performed in connection with a preliminary determination may submit 
comments concerning a significant ministerial error in such 
calculations. A party to the proceeding to whom the Secretary has 
disclosed calculations performed in connection with a final 
determination or the final results of a review may submit comments 
concerning any ministerial error in such calculations. Comments 
concerning ministerial errors made in the preliminary results of a 
review should be included in a party's case brief.
    (2) Time limits for submitting comments. A party to the proceeding 
must file comments concerning ministerial errors within five days after 
the earlier of:
    (i) The date on which the Secretary released disclosure documents to 
that party; or
    (ii) The date on which the Secretary held a disclosure meeting with 
that party.
    (3) Replies to comments. Replies to comments submitted under 
paragraph (c)(1) of this section must be filed within five days after 
the date on which the comments were filed with the Secretary. The 
Secretary will not consider replies to comments submitted in connection 
with a preliminary determination.
    (4) Extensions. A party to the proceeding may request an extension 
of the time limit for filing comments concerning a ministerial error in 
a final

[[Page 248]]

determination or final results of review under Sec. 351.302(c) within 
three days after the date of any public announcement, or, if there is no 
public announcement, within five days after the date of publication of 
the final determination or final results of review, as applicable. The 
Secretary will not extend the time limit for filing comments concerning 
a significant ministerial error in a preliminary determination.
    (d) Contents of comments and replies. Comments filed under paragraph 
(c)(1) of this section must explain the alleged ministerial error by 
reference to applicable evidence in the official record, and must 
present what, in the party's view, is the appropriate correction. In 
addition, comments concerning a preliminary determination must 
demonstrate how the alleged ministerial error is significant (see 
paragraph (g) of this section) by illustrating the effect on individual 
weighted-average dumping margin or countervailable subsidy rate, the 
all-others rate, or the country-wide subsidy rate (whichever is 
applicable). Replies to any comments must be limited to issues raised in 
such comments.
    (e) Corrections. The Secretary will analyze any comments received 
and, if appropriate, correct any significant ministerial error by 
amending the preliminary determination, or correct any ministerial error 
by amending the final determination or the final results of review 
(whichever is applicable). Where practicable, the Secretary will 
announce publicly the issuance of a correction notice, and normally will 
do so within 30 days after the date of public announcement, or, if there 
is no public announcement, within 30 days after the date of publication, 
of the preliminary determination, final determination, or final results 
of review (whichever is applicable). In addition, the Secretary will 
publish notice of such corrections in the Federal Register. A correction 
notice will not alter the anniversary month of an order or suspended 
investigation for purposes of requesting an administrative review (see 
Sec. 351.213) or a new shipper review (see Sec. 351.214) or initiating 
a sunset review (see Sec. 351.218).
    (f) Definition of ``ministerial error.'' Under this section, 
ministerial error means an error in addition, subtraction, or other 
arithmetic function, clerical error resulting from inaccurate copying, 
duplication, or the like, and any other similar type of unintentional 
error which the Secretary considers ministerial.
    (g) Definition of ``significant ministerial error.'' Under this 
section, significant ministerial error means a ministerial error (see 
paragraph (f) of this section), the correction of which, either singly 
or in combination with other errors:
    (1) Would result in a change of at least five absolute percentage 
points in, but not less than 25 percent of, the weighted-average dumping 
margin or the countervailable subsidy rate (whichever is applicable) 
calculated in the original (erroneous) preliminary determination; or
    (2) Would result in a difference between a weighted-average dumping 
margin or countervailable subsidy rate (whichever is applicable) of zero 
(or de minimis) and a weighted-average dumping margin or countervailable 
subsidy rate of greater than de minimis, or vice versa.



Sec. 351.225  Scope rulings.

    (a) Introduction. Issues arise as to whether a particular product is 
included within the scope of an antidumping or countervailing duty order 
or a suspended investigation. Such issues can arise because the 
descriptions of subject merchandise contained in the Department's 
determinations must be written in general terms. At other times, a 
domestic interested party may allege that changes to an imported product 
or the place where the imported product is assembled constitutes 
circumvention under section 781 of the Act. When such issues arise, the 
Department issues ``scope rulings'' that clarify the scope of an order 
or suspended investigation with respect to particular products. This 
section contains rules regarding scope rulings, requests for scope 
rulings, procedures for scope inquiries, and standards used in 
determining whether a product is within the scope of an order or 
suspended investigation.
    (b) Self-initiation. If the Secretary determines from available 
information

[[Page 249]]

that an inquiry is warranted to determine whether a product is included 
within the scope of an antidumping or countervailing duty order or a 
suspended investigation, the Secretary will initiate an inquiry, and 
will notify all parties on the Department's scope service list of its 
initiation of a scope inquiry.
    (c) By application--(1) Contents and service of application. Any 
interested party may apply for a ruling as to whether a particular 
product is within the scope of an order or a suspended investigation. 
The application must be served upon all parties on the scope service 
list described in paragraph (n) of this section, and must contain the 
following, to the extent reasonably available to the interested party:
    (i) A detailed description of the product, including its technical 
characteristics and uses, and its current U.S. Tariff Classification 
number;
    (ii) A statement of the interested party's position as to whether 
the product is within the scope of an order or a suspended 
investigation, including:
    (A) A summary of the reasons for this conclusion,
    (B) Citations to any applicable statutory authority, and
    (C) Any factual information supporting this position, including 
excerpts from portions of the Secretary's or the Commission's 
investigation, and relevant prior scope rulings.
    (2) Deadline for action on application. Within 45 days of the date 
of receipt of an application for a scope ruling, the Secretary will 
issue a final ruling under paragraph (d) of this section or will 
initiate a scope inquiry under paragraph (e) of this section.
    (d) Ruling based upon the application. If the Secretary can 
determine, based solely upon the application and the descriptions of the 
merchandise referred to in paragraph (k)(1) of this section, whether a 
product is included within the scope of an order or a suspended 
investigation, the Secretary will issue a final ruling as to whether the 
product is included within the order or suspended investigation. The 
Secretary will notify all persons on the Department's scope service list 
(see paragraph (n) of this section) of the final ruling.
    (e) Ruling where further inquiry is warranted. If the Secretary 
finds that the issue of whether a product is included within the scope 
of an order or a suspended investigation cannot be determined based 
solely upon the application and the descriptions of the merchandise 
referred to in paragraph (k)(1) of this section, the Secretary will 
notify by mail all parties on the Department's scope service list of the 
initiation of a scope inquiry.
    (f) Notice and procedure. (1) Notice of the initiation of a scope 
inquiry issued under paragraph (b) or (e) of this section will include:
    (i) A description of the product that is the subject of the scope 
inquiry; and
    (ii) An explanation of the reasons for the Secretary's decision to 
initiate a scope inquiry;
    (iii) A schedule for submission of comments that normally will allow 
interested parties 20 days in which to provide comments on, and 
supporting factual information relating to, the inquiry, and 10 days in 
which to provide any rebuttal to such comments.
    (2) The Secretary may issue questionnaires and verify submissions 
received, where appropriate.
    (3) Whenever the Secretary finds that a scope inquiry presents an 
issue of significant difficulty, the Secretary will issue a preliminary 
scope ruling, based upon the available information at the time, as to 
whether there is a reasonable basis to believe or suspect that the 
product subject to a scope inquiry is included within the order or 
suspended investigation. The Secretary will notify all parties on the 
Department's scope service list (see paragraph (n) of this section) of 
the preliminary scope ruling, and will invite comment. Unless otherwise 
specified, interested parties will have within twenty days from the date 
of receipt of the notification in which to submit comments, and ten days 
thereafter in which to submit rebuttal comments.
    (4) The Secretary will issue a final ruling as to whether the 
product which is the subject of the scope inquiry is included within the 
order or suspended investigation, including an explanation of the 
factual and legal conclusions on which the final ruling is based. The 
Secretary will notify all parties on the

[[Page 250]]

Department's scope service list (see paragraph (n) of this section) of 
the final scope ruling.
    (5) The Secretary will issue a final ruling under paragraph (k) of 
this section (other scope rulings) normally within 120 days of the 
initiation of the inquiry under this section. The Secretary will issue a 
final ruling under paragraph (g), (h), (i), or (j) of this section 
(circumvention rulings under section 781 of the Act) normally within 300 
days from the date of the initiation of the scope inquiry.
    (6) When an administrative review under Sec. 351.213, a new shipper 
review under Sec. 351.214, or an expedited antidumping review under 
Sec. 351.215 is in progress at the time the Secretary provides notice 
of the initiation of a scope inquiry (see paragraph (e)(1) of this 
section), the Secretary may conduct the scope inquiry in conjunction 
with that review.
    (7)(i) The Secretary will notify the Commission in writing of the 
proposed inclusion of products in an order prior to issuing a final 
ruling under paragraph (f)(4) of this section based on a determination 
under:
    (A) Section 781(a) of the Act with respect to merchandise completed 
or assembled in the United States (other than minor completion or 
assembly);
    (B) Section 781(b) of the Act with respect to merchandise completed 
or assembled in other foreign countries; or
    (C) Section 781(d) of the Act with respect to later-developed 
products which incorporate a significant technological advance or 
significant alteration of an earlier product.
    (ii) If the Secretary notifies the Commission under paragraph 
(f)(7)(i) of this section, upon the written request of the Commission, 
the Secretary will consult with the Commission regarding the proposed 
inclusion, and any such consultation will be completed within 15 days 
after the date of such request. If, after consultation, the Commission 
believes that a significant injury issue is presented by the proposed 
inclusion of a product within an order, the Commission may provide 
written advice to the Secretary as to whether the inclusion would be 
inconsistent with the affirmative injury determination of the Commission 
on which the order is based.
    (g) Products completed or assembled in the United States. Under 
section 781(a) of the Act, the Secretary may include within the scope of 
an antidumping or countervailing duty order imported parts or components 
referred to in section 781(a)(1)(B) of the Act that are used in the 
completion or assembly of the merchandise in the United States at any 
time such order is in effect. In making this determination, the 
Secretary will not consider any single factor of section 781(a)(2) of 
the Act to be controlling. In determining the value of parts or 
components purchased from an affiliated person under section 
781(a)(1)(D) of the Act, or of processing performed by an affiliated 
person under section 781(a)(2)(E) of the Act, the Secretary may 
determine the value of the part or component on the basis of the cost of 
producing the part or component under section 773(f)(3) of the Act.
    (h) Products completed or assembled in other foreign countries. 
Under section 781(b) of the Act, the Secretary may include within the 
scope of an antidumping or countervailing duty order, at any time such 
order is in effect, imported merchandise completed or assembled in a 
foreign country other than the country to which the order applies. In 
making this determination, the Secretary will not consider any single 
factor of section 781(b)(2) of the Act to be controlling. In determining 
the value of parts or components purchased from an affiliated person 
under section 781(b)(1)(D) of the Act, or of processing performed by an 
affiliated person under section 781(b)(2)(E) of the Act, the Secretary 
may determine the value of the part or component on the basis of the 
cost of producing the part or component under section 773(f)(3) of the 
Act.
    (i) Minor alterations of merchandise. Under section 781(c) of the 
Act, the Secretary may include within the scope of an antidumping or 
countervailing duty order articles altered in form or appearance in 
minor respects.
    (j) Later-developed merchandise. In determining whether later-
developed merchandise is within the scope of an antidumping or 
countervailing duty

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order, the Secretary will apply section 781(d) of the Act.
    (k) Other scope determinations. With respect to those scope 
determinations that are not covered under paragraphs (g) through (j) of 
this section, in considering whether a particular product is included 
within the scope of an order or a suspended investigation, the Secretary 
will take into account the following:
    (1) The descriptions of the merchandise contained in the petition, 
the initial investigation, and the determinations of the Secretary 
(including prior scope determinations) and the Commission.
    (2) When the above criteria are not dispositive, the Secretary will 
further consider:
    (i) The physical characteristics of the product;
    (ii) The expectations of the ultimate purchasers;
    (iii) The ultimate use of the product;
    (iv) The channels of trade in which the product is sold; and
    (v) The manner in which the product is advertised and displayed.
    (l) Suspension of liquidation. (1) When the Secretary conducts a 
scope inquiry under paragraph (b) or (e) of this section, and the 
product in question is already subject to suspension of liquidation, 
that suspension of liquidation will be continued, pending a preliminary 
or a final scope ruling, at the cash deposit rate that would apply if 
the product were ruled to be included within the scope of the order.
    (2) If the Secretary issues a preliminary scope ruling under 
paragraph (f)(3) of this section to the effect that the product in 
question is included within the scope of the order, any suspension of 
liquidation described in paragraph (l)(1) of this section will continue. 
If liquidation has not been suspended, the Secretary will instruct the 
Customs Service to suspend liquidation and to require a cash deposit of 
estimated duties, at the applicable rate, for each unliquidated entry of 
the product entered, or withdrawn from warehouse, for consumption on or 
after the date of initiation of the scope inquiry. If the Secretary 
issues a preliminary scope ruling to the effect that the product in 
question is not included within the scope of the order, the Secretary 
will order any suspension of liquidation on the product ended, and will 
instruct the Customs Service to refund any cash deposits or release any 
bonds relating to that product.
    (3) If the Secretary issues a final scope ruling, under either 
paragraph (d) or (f)(4) of this section, to the effect that the product 
in question is included within the scope of the order, any suspension of 
liquidation under paragraph (l)(1) or (l)(2) of this section will 
continue. Where there has been no suspension of liquidation, the 
Secretary will instruct the Customs Service to suspend liquidation and 
to require a cash deposit of estimated duties, at the applicable rate, 
for each unliquidated entry of the product entered, or withdrawn from 
warehouse, for consumption on or after the date of initiation of the 
scope inquiry. If the Secretary's final scope ruling is to the effect 
that the product in question is not included within the scope of the 
order, the Secretary will order any suspension of liquidation on the 
subject product ended and will instruct the Customs Service to refund 
any cash deposits or release any bonds relating to this product.
    (4) If, within 90 days of the initiation of a review of an order or 
a suspended investigation under this subpart, the Secretary issues a 
final ruling that a product is included within the scope of the order or 
suspended investigation that is the subject of the review, the 
Secretary, where practicable, will include sales of that product for 
purposes of the review and will seek information regarding such sales. 
If the Secretary issues a final ruling after 90 days of the initiation 
of the review, the Secretary may consider sales of the product for 
purposes of the review on the basis of non-adverse facts available. 
However, notwithstanding the pendency of a scope inquiry, if the 
Secretary considers it appropriate, the Secretary may request 
information concerning the product that is the subject of the scope 
inquiry for purposes of a review under this subpart.
    (m) Orders covering identical products. Except for a scope inquiry 
and a scope ruling that involves section 781(a) or section 781(b) of the 
Act (assembly of

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parts or components in the United States or in a third country), if more 
than one order or suspended investigation cover the same subject 
merchandise, and if the Secretary considers it appropriate, the 
Secretary may conduct a single inquiry and issue a single scope ruling 
that applies to all such orders or suspended investigations.
    (n) Service of applications; scope service list. The requirements of 
Sec. 351.303(f) apply to this section, except that an application for a 
scope ruling must be served on all persons on the Department's scope 
service list. For purposes of this section, the ``scope service list'' 
will include all persons that have participated in any segment of the 
proceeding. If an application for a scope ruling in one proceeding 
results in a single inquiry that will apply to another proceeding (see 
paragraph (m) of this section), the Secretary will notify persons on the 
scope service list of the other proceeding of the application for a 
scope ruling.
    (o) Publication of list of scope rulings. On a quarterly basis, the 
Secretary will publish in the Federal Register a list of scope rulings 
issued within the last three months. This list will include the case 
name, reference number, and a brief description of the ruling.



                   Subpart C_Information and Argument



Sec. 351.301  Time limits for submission of factual information.

    (a) Introduction. The Department obtains most of its factual 
information in antidumping and countervailing duty proceedings from 
submissions made by interested parties during the course of the 
proceeding. This section sets forth the time limits for submitting such 
factual information, including information in questionnaire responses, 
publicly available information to value factors in nonmarket economy 
cases, allegations concerning market viability, allegations of sales at 
prices below the cost of production, countervailable subsidy 
allegations, and upstream subsidy allegations. Section 351.302 sets 
forth the procedures for requesting an extension of such time limits. 
Section 351.303 contains the procedural rules regarding filing, format, 
translation, service, and certification of documents.
    (b) Time limits in general. Except as provided in paragraphs (c) and 
(d) of this section and Sec. 351.302, a submission of factual 
information is due no later than:
    (1) For a final determination in a countervailing duty investigation 
or an antidumping investigation, seven days before the date on which the 
verification of any person is scheduled to commence, except that factual 
information requested by the verifying officials from a person normally 
will be due no later than seven days after the date on which the 
verification of that person is completed;
    (2) For the final results of an administrative review, 140 days 
after the last day of the anniversary month, except that factual 
information requested by the verifying officials from a person normally 
will be due no later than seven days after the date on which the 
verification of that person is completed;
    (3) For the final results of a changed circumstances review, sunset 
review, or section 762 review, 140 days after the date of publication of 
notice of initiation of the review, except that factual information 
requested by the verifying officials from a person normally will be due 
no later than seven days after the date on which the verification of 
that person is completed;
    (4) For the final results of a new shipper review, 100 days after 
the date of publication of notice of initiation of the review, except 
that factual information requested by the verifying officials from a 
person normally will be due no later than seven days after the date on 
which the verification of that person is completed; and
    (5) For the final results of an expedited antidumping review, 
Article 8 violation review, Article 4/Article 7 review, or section 753 
review, a date specified by the Secretary.
    (c) Time limits for certain submissions--(1) Rebuttal, 
clarification, or correction of factual information. Any interested 
party may submit factual information to rebut, clarify, or correct 
factual information submitted by any other interested party at any time 
prior to the deadline provided in this