[Federal Register Volume 81, Number 98 (Friday, May 20, 2016)]
[Proposed Rules]
[Pages 31875-31877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11864]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 160506400-6400-01]
RIN 0625-AB05
Modification of Regulation Regarding Written Argument:
Establishing Word Limits for Case and Rebuttal Briefs in Antidumping
and Countervailing Duty Proceedings
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
ACTION: Proposed rule and request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Commerce (``the Department'') proposes to
modify the regulation pertaining to written argument in antidumping and
countervailing duty proceedings and is seeking comments from parties.
This modification, if adopted, is intended to establish word limits for
submission of case and rebuttal briefs. This action is necessary to
streamline the process contained in the current regulation, to better
align with current Department practices and to reduce the strain on
resources.
DATES: To be assured of consideration, written comments must be
received no later than June 20, 2016.
ADDRESSES: All comments must be submitted through the Federal
eRulemaking Portal at http://www.regulations.gov, Docket No. ITA-2016-
0001, unless the commenter does not have access to the Internet.
Commenters that do not have access to the internet may submit the
original and one electronic copy of each set of comments by mail or
hand delivery/courier. All comments should be addressed to Paul
Piquado, Assistant Secretary for Enforcement & Compliance, Room 1870,
Department of Commerce, 14th Street and Constitution Ave. NW.,
Washington, DC 20230. Comments submitted to the Department will be
uploaded to the eRulemaking Portal at www.Regulations.gov.
The Department will consider all comments received before the close
of the comment period. All comments responding to this notice will be a
matter of public record and will be available on the Federal
eRulemaking Portal at www.Regulations.gov. 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.
Any questions concerning file formatting, document conversion,
access on the Internet, or other electronic filing issues should be
addressed to Moustapha Sylla, Enforcement and Compliance Webmaster, at
(202) 482-4685, email address: [email protected].
FOR FURTHER INFORMATION CONTACT: Myrna Lobo at (202) 482-2371 or
Michele Lynch at (202) 482-2879.
SUPPLEMENTARY INFORMATION:
Background
Section 351.309 of the Department's regulations sets forth limits
for the submission of case and rebuttal briefs and provides guidance on
what should be contained in these documents. However, unlike other
Federal Agencies (e.g., the International Trade Commission, Department
of Labor, or the Internal Revenue Service Tax Court),\1\ the Department
does not currently limit the length of such briefs. As a result,
submissions may contain lengthy or duplicative arguments in antidumping
and countervailing duty proceedings. The review and summarization of
these lengthy submissions consumes considerable resources. To reduce
the strain on limited resources and streamline the process, the
Department proposes amending 19 CFR 351.309 to impose word limits on
case and rebuttal briefs.
---------------------------------------------------------------------------
\1\ The United States Court of International Trade and the
United States Court of Appeals for the Federal Circuit also impose
word limits on briefs.
---------------------------------------------------------------------------
The proposed revision would set forth a limit of 25,000 words in
total for each party's case and rebuttal briefs. A party may decide on
the number of words it chooses to allocate among its case brief and
rebuttal brief, but the combined total between the two shall not exceed
25,000 words. Each case brief must contain a certification by the
filing party or its representative, indicating the number of words used
in the brief, and the number of unused words remaining for the rebuttal
brief. Each rebuttal brief must contain a certification by the filing
party or its representative indicating the number of words used and
that the total combined word limit of 25,000 words has not been
exceeded. The word limit will include all attachments, headings,
footnotes, endnotes, and quotations used in the document; it will not
include the table of contents, table of statutes, regulations and cases
cited, and summary of arguments that preface the arguments in the
brief, referenced in paragraphs (c)(2) and (d)(2) of the revised
regulation below. In determining the word count, a party may rely on
the software program used to prepare the brief. Briefs in excess of the
word count shall be rejected and shall be considered untimely.
If an interested party challenges a party's word count, such a
filing must be made within 48 hours of the filing of the final version
of the case or reply brief in ACCESS.\2\ While parties may not be able
to view another party's business proprietary case brief in ACCESS and
may have to rely on being served the brief by the filing party, we note
that 19 CFR 351.303(f)(3)(i) contains specific rules for service of
briefs. Case briefs must be served on persons on the service list \3\
the same day that they are filed with the Department by personal
service or by overnight mail or courier the next day
[[Page 31876]]
which we find provides adequate time for a party's challenge to be
filed within the 48-hour window. \4\ The Department will evaluate
challenges received and determine the proper course of action.
---------------------------------------------------------------------------
\2\ Enforcement and Compliance's Antidumping and Countervailing
Duty Centralized Electronic Service System (``ACCESS''). ACCESS is
available to registered users at https://access.trade.gov.
\3\ 19 CFR 103(d)(2).
\4\ For parties that have designated an agent to receive service
that is located outside the United States, and served case briefs by
first class airmail in accordance with 19 CFR 351.303(f)(3)(i), the
Department will consider on a case-by-case basis the time allowed to
that party to challenge another party's word count.
---------------------------------------------------------------------------
Where the Department finds that good cause exists, the word limit
may be revised by the Department if a party makes such a request. Such
requests must be received sufficiently in advance of the briefing
deadlines to be considered.
The Department is issuing this proposed rule to modify the
regulation at issue pursuant to Administrative Procedure Act (5 U.S.C.
553) notice and comment procedures; we invite comments from all
interested parties.
Proposed Modification
The Department proposes to modify 19 CFR 351.309, to include new
paragraph (e) on word limits, as indicated below and to make conforming
amendments to 19 CFR 351.309(a), (b), and (c). These modifications, if
adopted, are intended to establish word limits for case and rebuttal
briefs, as well as the accompanying requirements for imposing word
limits. This rulemaking would be effective for proceedings initiated on
or after 30 days following the date of publication of the final rule.
This proposed rule makes additional minor edits to Sec. 351.309: (1)
The words ``or countervailing duty'' are being added to Sec.
351.309(b)(1) and (c)(1)(iii) to be consistent with Sec. 351.214(k),
and (2) the Roman numerals (i) and (ii) in current Sec. 351.309(e),
which is proposed Sec. 351.309(f), have been amended to be Arabic
numbers (1) and (2) to be consistent with the other paragraphs of the
regulation.
The Department invites parties to comment on this proposed rule and
the proposed effective date. Further, any party may submit comments
expressing its disagreement with the Department's proposal and may
propose an alternative approach.
Classifications
Executive Order 12866
It has been determined that this proposed rule is not significant
for purposes of Executive Order 12866.
Paperwork Reduction Act
This proposed rule contains no new collection of information
subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
Executive Order 13132
This proposed rule does not contain policies with federalism
implications as that term is defined in section 1(a) of Executive Order
13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).
Regulatory Flexibility Act
The Chief Counsel for Regulation has certified to the Chief Counsel
for Advocacy of the Small Business Administration under the provisions
of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed
rule would not have a significant economic impact on a substantial
number of small business entities. A summary of the need for,
objectives of and legal basis for this rule is provided in the
preamble, and is not repeated here.
The entities upon which this rulemaking could have an impact
include foreign exporters and producers, some of whom are affiliated
with U.S. companies, and U.S. importers. Enforcement & Compliance
currently does not have information on the number of entities that
would be considered small under the Small Business Administration's
size standards for small businesses in the relevant industries.
However, some of these entities may be considered small entities under
the appropriate industry size standards. Although this proposed rule
may indirectly impact small entities that are parties to individual
antidumping or countervailing duty proceedings, it will not have a
significant economic impact on any entities.
The proposed action is merely to streamline the process contained
in the current Department regulations. If the proposed rule is
implemented, no entities would be required to undertake additional
compliance measures or expenditures. Rather, the regulation, in this
proposed rulemaking, is to reduce the burden placed on the Department
and interested parties when lengthy or duplicative arguments are made
in case briefs and then must be addressed. Because the proposed rule
imposes limits on the submissions of case and rebuttal briefs in an
antidumping or countervailing duty proceeding, it does not place a
burden on or directly impact any business entities. The proposed rule
merely strengthens the current regulations to better align with current
Departmental practices. Therefore, the proposed rule would not have a
significant economic impact on a substantial number of small business
entities. For this reason, an Initial Regulatory Flexibility Analysis
is not required and one has not been prepared.
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: May 12, 2016.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
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. Section 351.309 is revised to read as follows:
Sec. 351.309 Written argument.
(a) Introduction. Written argument may be submitted during the
course of an antidumping or countervailing duty proceeding. This
section sets forth the time and word limits for submission of case and
rebuttal briefs and provides guidance on what should be contained in
these documents.
(b) Written argument--(1) In general. In making the final
determination in a countervailing duty investigation or antidumping
investigation, or the final results of an administrative review, new
shipper review, expedited antidumping or countervailing duty review,
section 753 review, or section 762 review, the Secretary will consider
written arguments in case or rebuttal briefs filed within the time and
word limits in this section.
(2) Written argument on request. Notwithstanding paragraph (b)(1)
of this section, the Secretary may request written argument on any
issue from any person or U.S. Government agency at any time during a
proceeding.
(c) Case brief. (1) Any interested party or U.S. Government agency
may submit a ``case brief'' within:
(i) For a final determination in a countervailing duty
investigation or antidumping investigation, or for the final results of
a full sunset review, 50 days after the date of publication of the
preliminary determination or results of review, as applicable, unless
the Secretary alters the time limit;
[[Page 31877]]
(ii) For the final results of an administrative review, new shipper
review, changed circumstances review, or section 762 review, 30 days
after the date of publication of the preliminary results of review,
unless the Secretary alters the time limit; or
(iii) For the final results of an expedited sunset review,
expedited antidumping or countervailing duty review, Article 8
violation review, Article 4/Article 7 review, or section 753 review, a
date specified by the Secretary.
(2) The case brief must present all arguments that continue in the
submitter's view to be relevant to the Secretary's final determination
or final results, including any arguments presented before the date of
publication of the preliminary determination or preliminary results. As
part of the case brief, parties are encouraged to provide a summary of
the arguments not to exceed five pages and a table of statutes,
regulations, and cases cited.
(d) Rebuttal brief. (1) Any interested party or U.S. Government
agency may submit a ``rebuttal brief'' within five days after the time
limit for filing the case brief, unless the Secretary alters this time
limit.
(2) The rebuttal brief may respond only to arguments raised in case
briefs and should identify the arguments to which it is responding. As
part of the rebuttal brief, parties are encouraged to provide a summary
of the arguments not to exceed five pages and a table of statutes,
regulations, and cases cited.
(e) Word limits. (1) Except with the consent of Enforcement &
Compliance for good cause, each party shall use no more than 25,000
words total between its case and rebuttal briefs. The allocation of the
25,000 words between case and rebuttal briefs is left to each party.
All attachments to such briefs, headings, footnotes, endnotes, and
quotations shall be included in the word limitation. The summary of
arguments and the table of statutes, regulations and cases cited
referenced in paragraphs (c)(2) and (d)(2) of this section shall not be
included in the word limitation.
(2) The case brief, if any, shall contain a certification by the
party or its representative indicating the number of words in the brief
and the number of words available for the rebuttal brief. The rebuttal
brief, if any, shall contain a certification by the party or its
representative indicating the number of words in the brief and
certifying that the total word limit of 25,000 has not been exceeded in
the party's combined case and rebuttal brief word limit. The party
filing the certification may rely on the word count of the software
program used to prepare the brief. Briefs in excess of the word
limitation shall be rejected and shall be considered untimely.
Challenges to opposing party's word count must be filed with the agency
within 48 hours of the filing of the case or reply brief and
accompanying certifications or the challenge will not be considered. If
a person has designated an agent to receive service that is located
outside the United States, and served briefs by first class airmail in
accordance with 19 CFR 351.303(f)(3)(i), the agency will consider on a
case-by-case basis the time allowed to that person to challenge a
party's word count.
(f) Comments on adequacy of response and appropriateness of
expedited sunset review--(1) In general. Where the Secretary determines
that respondent interested parties provided inadequate response to a
notice of initiation (see Sec. 351.218(e)(1)(ii)) and has notified the
International Trade Commission as such under Sec.
351.218(e)(1)(ii)(C), interested parties (and industrial users and
consumer organizations) that submitted a complete substantive response
to the notice of initiation under Sec. 351.218(d)(3) may file comments
on whether an expedited sunset review under section 751(c)(3)(B) of the
Act and Sec. 351.218(e)(1)(ii)(B) or (C) is appropriate based on the
adequacy of responses to the notice of initiation. These comments may
not include any new factual information or evidence (such as
supplementation of a substantive response to the notice of initiation)
and are limited to five pages.
(2) Time limit for filing comments. Comments on adequacy of
response and appropriateness of expedited sunset review must be filed
not later than 70 days after the date publication in the Federal
Register of the notice of initiation.
[FR Doc. 2016-11864 Filed 5-19-16; 8:45 am]
BILLING CODE 3510-DS-P