[Federal Register Volume 78, Number 11 (Wednesday, January 16, 2013)]
[Proposed Rules]
[Pages 3367-3370]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00833]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 121231747-2747-01]
RIN 0625-AA94
Modification of Regulation Regarding the Extension of Time Limits
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: The Department of Commerce (the Department) proposes to modify
its regulation concerning the extension of time limits for submissions
in antidumping (AD) and countervailing duty (CVD) proceedings. The
modification, if adopted, will clarify that parties may request an
extension of time limits before any time limit established under this
part expires. This modification will also clarify under which
circumstances the Department will grant untimely- filed requests for
the extension of time limits.
DATES: To be assured of consideration, comments must be received no
later than March 18, 2013.
ADDRESSES: All comments must be submitted through the Federal
eRulemaking Portal at http://www.regulations.gov, Docket No. ITA-2012-
0006, unless the commenter does not have access to the Internet.
Commenters who do not have access to the Internet may submit the
original and two copies of each set of comments by mail or hand
delivery/courier. All
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comments should be addressed to Paul Piquado, Assistant Secretary for
Import Administration, Room 1870, Department of Commerce, 14th Street
and Constitution Ave. NW., Washington, DC 20230. The comments should
also be identified by Regulation Identifier Number (RIN) 0625-AA94.
The Department will consider all comments received before the close
of the comment period. The Department will not accept comments
accompanied by a request that part or all of the material be treated
confidentially because of its business proprietary nature or for any
other reason. All comments responding to this notice will be a matter
of public record and will be available for inspection at Import
Administration's Central Records Unit (Room 7046 of the Herbert C.
Hoover Building) and online at http://www.regulations.gov and on the
Department's Web site at http://www.trade.gov/ia/.
Any questions concerning file formatting, document conversion,
access on the Internet, or other electronic filing issues should be
addressed to Andrew Lee Beller, Import Administration Webmaster, at
(202) 482-0866, email address: webmaster-support@ita.doc.gov.
FOR FURTHER INFORMATION CONTACT: Joanna Theiss at (202) 482-5052.
SUPPLEMENTARY INFORMATION:
Background
The Department proposes to modify 19 CFR 351.302, which provides
for the extension of time limits for submissions in AD and CVD
proceedings, and the return of untimely-filed or unsolicited material.
Currently, 19 CFR 351.302(b) provides that, unless expressly precluded
by statute, the Secretary may, for good cause, extend any time limit
established by this part (i.e., Part 351, ``Antidumping and
Countervailing Duties''). Section 351.302(c) provides that, before the
applicable time limit specified under Sec. 351.301 expires, a party
may request an extension pursuant to paragraph (b). Such a request must
be in writing, filed in accordance with the relevant regulatory
provision, and state the reasons for the request. The extension must be
approved in writing. If the Secretary does not extend the time limit,
section 351.302(d) sets forth the procedures for the rejection of
untimely-filed or unsolicited material.
The Department proposes modifying section 351.302(c) to provide
additional certainty to parties participating in AD and CVD proceedings
in two important areas. First, the proposed rule will clarify that
parties may request an extension of any time limit established by this
part, rather than limiting extension requests to submissions under
section 351.301, because currently there is no provision in the
Department's regulations permitting parties to request extensions of
time limits for submissions other than for those established in section
351.301. Thus, this modification makes explicit that parties may
request extensions for any time limit established under Part 351. This
modification is also consistent with paragraph (b), which provides that
the Secretary may, for good cause, extend any time limit established
under this part.
Further, the Department proposes modifying section 351.302(c) to
clarify and confirm the specific circumstances under which the
Department will consider an untimely-filed extension request. The
current regulation does not account for extension requests filed after
the time limit; section 351.302(c) merely states that ``before the
applicable time limit expires * * * a party may request an extension.''
The current regulation also does not address a situation in which a
party files an extension request so close to the time limit that the
Department does not have the opportunity to respond to the request
before the time limit has expired. Untimely-filed extension requests
often result in confusion among the parties, difficulties in the
Department's organization of its work, and undue expenditure of
Departmental resources in addressing such requests. This can impede the
Department's ability to conduct AD and CVD proceedings in a timely and
orderly manner.
In the vast majority of situations, there should be no reason why a
party cannot request an extension prior to the expiration of the
applicable time limit, and with adequate opportunity for the Department
to consider the request before the time limit expires. It is the
Department's view that only in extraordinary circumstances would a
party not be able to submit the extension request in a timely manner.
Therefore, the Department proposes modifying 19 CFR 351.302(c) to
specify that an untimely-filed extension request will not be considered
unless the party demonstrates that extraordinary circumstances exist.
Only if the Department determines that the party has demonstrated that
extraordinary circumstances exist will the Department then consider
whether the party has demonstrated that good cause exists for allowing
an extension to the time limit pursuant to section 351.302(b).
The Department considers that untimely-filed extension requests
encompass those requests that come in after the applicable time limit
expires, but the Department requests comment on whether the term
``untimely'' should also include extension requests that are made very
close to the applicable time limit. For example, an untimely-filed
extension request could be defined as one that is received less than 48
or 24 hours before the applicable time limit expires. The Department
also requests comment on whether there should be a separate standard
for extension requests for submissions which are due from multiple
parties simultaneously, such as case and rebuttal briefs, pursuant to
section 351.309. The Department requests comment on whether a separate
standard would be useful, to avoid a circumstance in which, for
instance, one party requests a last-minute extension to the time limit
to file its case brief, with the result that it may review other
parties' timely-filed briefs and thus obtain an advantage over the
other parties.
Classification
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
Initial Regulatory Flexibility Analysis (IRFA)
Pursuant to section 603 of the Regulatory Flexibility Act, the
Department has prepared the following IRFA to analyze the potential
impact that this proposed rule, if adopted, would have on small
entities.
Description of the Reasons Why Action Is Being Considered
The policy reasons for issuing this proposed rule are discussed in
the preamble of this document, and not repeated here.
Statement of the Objectives of, and Legal Basis for, the Proposed Rule;
Identification of all Relevant Federal Rules Which May Duplicate,
Overlap, or Conflict With the Proposed Rule
This proposed rule is intended to alter the Import Administration's
regulations for AD and CVD proceedings; specifically, to modify the
regulation concerning the extension of time limits. The proposed rule
would clarify that parties may request the extension of any time limit
established under this part, as opposed to the current rule, which only
addresses requests for the extension of time limits specified under
section 351.301. Further, the proposed rule would establish a standard
by which the
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Department would consider untimely-filed extension requests because the
current regulation only addresses extension requests that are filed
before the applicable time limit for the submission expires.
The legal basis for this rule is 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. No
other Federal rules duplicate, overlap, or conflict with this proposed
rule.
Number and Description of Small Entities Regulated by the Proposed
Action
The proposed rules will apply to any interested party, as defined
in section 771(9) of the Tariff Act of 1930, as amended, requesting
extension of time limits for the submissions in AD and CVD proceedings.
This could include any party participating in an AD or CVD proceeding,
including exporters and producers of merchandise subject to AD and CVD
proceedings and their affiliates, importers of such merchandise,
domestic producers of like products, and foreign governments. However,
it will only apply to those parties that request an extension of time
limits.
Exporters and producers of subject merchandise are rarely U.S.
companies. Some exporters and producers of subject merchandise do have
U.S. affiliates, some of which may be considered small entities under
the appropriate Small Business Administration (SBA) small business size
standard. The Department is not able to estimate the number of domestic
affiliates of foreign producers or exporters that may be considered
small entities, but anticipates, based on its experience in these
proceedings, that the number will not be substantial.
Importers may be U.S. or foreign companies, and some of these
entities may be considered small entities under the appropriate SBA
small business size standard. The Department does not anticipate that
the proposed rule will impact a substantial number of small importers
because importers of subject merchandise who are not also producers or
exporters (or their affiliates) rarely submit material in the course of
the Department's AD and CVD proceedings, and those that do tend to be
larger entities.
Some domestic producers of like products may be considered small
entities under the appropriate SBA small business size standard.
Although it is unable to estimate the number of producers that may be
considered small entities, the Department does not anticipate that the
number affected by the proposed rule will be substantial. Typically,
domestic producers that bring a petition or participate actively in an
AD or CVD proceeding account for a large amount of the domestic
production within an industry, so it is unlikely that many of these
domestic producers will be small entities.
In sum, while recognizing that U.S. affiliates of foreign producers
or exporters, importers, and domestic producers that submit material in
AD and CVD proceedings will likely include some small entities, the
Department, based on its experience with these proceedings and the
participating parties, does not anticipate that the proposed rule would
impact a substantial number of small entities.
Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Proposed Rule
The proposed rule will require a party submitting an untimely-filed
extension request to demonstrate that extraordinary circumstances
exist. This will not amount to a significant burden. Under normal
circumstances, a party should be able to submit its extension request
in a timely manner because an extension request is a straightforward
and usually concise document, identifying only the material to be
submitted, the current time limit, the requested extension of that time
limit, and the reason for the extension request. In other words, there
is no reason to submit extension requests in an untimely manner except
under extraordinary circumstances. Thus, if a party files its extension
request in an untimely manner, the extraordinary circumstances for
submitting the extension request in an untimely manner will be readily
available to the party making the untimely extension request.
Description of Any Significant Alternatives to the Proposed Rule That
Accomplish the Stated Objectives of Applicable Statutes and That
Minimize any Significant Economic Impact of the Proposed Rule on Small
Entities
As required by 5 U.S.C. 603(c), the Department's analysis
considered significant alternatives. The alternatives which the
Department considered include: (1) The preferred alternative of
modifying the rule to establish that parties can request an extension
of any time limit established under this part, and that an untimely-
filed extension request will not be considered unless the party
demonstrates that extraordinary circumstances exist; (2) maintaining
the current rule which does not address extension requests for time
limits established in provisions other than 19 CFR 351.301 or untimely-
filed extension requests; (3) modifying the rule to establish that
parties can request an extension of any time limit established under
this part, and that untimely-filed extension request will not be
considered unless the party demonstrates that good cause exists; and
(4) modifying the rule to establish that parties can request an
extension of any time limit established under this part, and that
untimely-filed extension requests will not be considered.
The Department does not anticipate that the first, preferred
alternative will have a significant economic impact on small entities.
First, a clarification that parties may request an extension of any
time limit established under this part, as opposed to only time limits
established by section 351.301, will avoid confusion as to under which
provision a party may request an extension. Also, a standard under
which untimely-filed extension requests will be considered is not
provided under the current regulation, and so the inclusion of a
standard will provide clarity to parties appearing before the
Department. It does not change the type of material which may be
submitted to the Department, nor does it limit a party's ability to
request an extension to time limits.
Under alternative two, the Department determined that maintaining
the current rule and not addressing extension requests for time limits
other than those established under section 351.301, and not including a
standard concerning untimely-filed extension requests, will not serve
the objective of the proposed rule. If the Department maintained the
current rule, then there would be no standard under which the
Department would consider untimely-filed extension requests. This would
not provide certainty to parties participating in AD and CVD
proceedings, and would not address the administrative issues which the
Department has encountered. Thus, although this alternative was
considered, it was not proposed.
The Department also considered modifying the rule to clarify that a
party may request an extension of any time limit established under this
part and to establish that the Department will not consider an
untimely-filed extension request unless the party demonstrates that
good cause exists, described as alternative three. As discussed in the
consideration of its preferred alternative, the clarification that an
extension request may be of any time limit established by this part
serves the objectives of the proposed rule because it makes clear that
19 CFR 351.302(c) applies to extension requests for any
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time limit established by this part. The Department next considered a
``good cause'' standard for untimely-filed extension requests. As with
the Department's preferred alternative, this alternative establishes a
standard under which untimely-filed extension requests will be
considered, which is missing from the current rule. The disadvantage to
this alternative is that the ``good cause'' exists as the standard by
which the Department considers timely-filed extension requests under
the current rule. Therefore, a party would have no reason to submit its
extension request in a timely manner, because the same standard would
apply as if the extension request were filed in an untimely manner.
This will not serve the objective of the proposed rule to avoid
confusion, will perpetuate the current difficulties in the Department's
organization of its work, and will perpetuate the undue expenditure of
Departmental resources in addressing extension requests. Thus, it has
not been proposed.
The Department also considered modifying the rule to clarify that a
party may request an extension of any time limit established under this
part and to establish that the Department will not consider any
untimely-filed extension requests, described as alternative four. As
discussed in the consideration of its preferred alternative, the
clarification that an extension request may be of any time limit
established by this part serves the objectives of the proposed rule
because it makes clear that 19 CFR 351.302(c) applies to extension
requests for any time limit established by this part. This alternative
would also eliminate the confusion and current difficulties of
implementing the current rule by eliminating the source of these
issues. However, the Department does recognize that extraordinary,
extenuating circumstances can and do arise which may prevent a party
from submitting a timely-filed extension request, and, therefore, it
considers this alternative to be too inflexible to permit the
Department to effectively and fairly administer the unfair trade
statutes. Thus, it has not been proposed.
Paperwork Reduction Act
This rule does not require a collection of information for purposes
of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et
seq.).
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping, Business and
industry, Cheese, Confidential business information, Countervailing
duties, Freedom of information, Investigations, Reporting and
recordkeeping requirements.
Dated: January 9, 2013.
Paul Piquado,
Assistant Secretary for Import Administration.
For the reasons stated, 19 CFR Part 351 is proposed to be amended
as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
0
1. The authority citation for 19 CFR part 351 continues to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303
note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.
0
2. In Sec. 351.302, revise paragraph (c) as follows:
Sec. 351.302 Extension of time limits; return of untimely filed or
unsolicited material.
* * * * *
(c) Requests for extension of specific time limit.
Before the applicable time limit established under this part
expires, a party may request an extension pursuant to paragraph (b) of
this section. An untimely filed extension request will not be
considered unless the party demonstrates that extraordinary
circumstances exist. The request must be in writing, filed consistent
with Sec. 351.303, and state the reasons for the request. An extension
granted to a party must be approved in writing.
* * * * *
[FR Doc. 2013-00833 Filed 1-15-13; 8:45 am]
BILLING CODE 3510-DS-P