[Title 19 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2000 Edition]
[From the U.S. Government Printing Office]
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19
Part 200 to end
Revised as of April 1, 2000
Customs Duties
Containing a Codification of documents of general
applicability and future effect
As of April 1, 2000
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
As a Special Edition of the Federal Register
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U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2000
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 19:
Chapter II--United States International Trade
Commission.......................................... 3
Chapter III--International Trade Administration,
Department of Commerce.............................. 183
Finding Aids:
Table of CFR Titles and Chapters........................ 327
Alphabetical List of Agencies Appearing in the CFR...... 345
List of CFR Sections Affected........................... 355
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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
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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
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
April 1, 2000.
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THIS TITLE
Title 19--Customs Duties is composed of three volumes. The first two
volumes, parts 1 to 140 and parts 141 to 199 contain the regulations in
Chapter I--United States Customs Service, Department of the Treasury.
The third volume, part 200 to end contains the regulations in Chapter
II--United States International Trade Commission and Chapter III--
International Trade Administration, Department of Commerce. The contents
of these volumes represent all current regulations issued under this
title of the CFR as of April 1, 2000.
Redesignation Tables and a Subject Index to Chapter I--U.S. Customs
Service appear in the Finding Aids section of the first two volumes.
For this volume, Jonn V. Lilyea was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
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TITLE 19--CUSTOMS DUTIES
(This book contains part 200 to End)
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Part
Chapter II--United States International Trade Commission.... 200
Chapter III--International Trade Administration, Department
of Commerce............................................... 351
Cross References: Regulations of the Department of Agriculture: See
Titles 7 and 9.
Internal Revenue Service, Department of the Treasury: See Internal
Revenue Service, 26 CFR Chapter I.
Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury:
27 CFR Chapter I.
Drug Enforcement Administration, Department of Justice: See Food and
Drugs, 21 CFR Chapter II.
Coast Guard, Department of Transportation: See 33 CFR Chapter I and 46
CFR Chapter I.
Department of Defense procurement: See Federal Acquisition Regulations
System, 48 CFR Chapter 2.
Department of State: See Foreign Relations, 22 CFR Chapter I.
Export clearance and destination control: See Commerce and Foreign
Trade, 15 CFR part 386.
Food and Drug Administration, Department of Health and Human Services:
See Food and Drugs, 21 CFR Chapter I.
Foreign excess property: See Commerce and Foreign Trade, 15 CFR part
302.
Foreign trade statistics: See Commerce and Foreign Trade, 15 CFR part
30.
Foreign-Trade Zones Board: See Commerce and Foreign Trade, 15 CFR
Chapter IV.
Immigration and Naturalization Service, Department of Justice: See
Aliens and Nationality, 8 CFR Chapter I.
Importation of wildlife and plants: See Wildlife and Fisheries, 50 CFR
Chapter I, Subchapter B.
Postal Service (International Mail): See United States Postal Service,
39 CFR Chapter I, Subchapter B.
Public Health Service, Department of Health and Human Services: See
Public Health, 42 CFR Chapter I.
Other regulations issued by the Department of the Treasury appear in
12 CFR Chapter I; and Title 31.
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CHAPTER II--UNITED STATES INTERNATIONAL TRADE COMMISSION
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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....... 66
204 Investigations of effects of imports on
agricultural programs................... 67
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............ 68
206 Investigations relating to global and
bilateral safeguard actions, market
disruption, and review of relief actions 70
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............ 87
SUBCHAPTER C--INVESTIGATIONS OF UNFAIR PRACTICES IN IMPORT TRADE
210 Adjudication and enforcement................ 121
212 Implementation of the Equal Access to
Justice Act............................. 173
213 Trade remedy assistance..................... 178
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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
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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 Secs. 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 Secs. 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.
201.32 Specific exemptions.
201.33 Employee conduct.
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, of this chapter. In case of inconsistency between a rule of
general application and a rule of special application, the latter is
controlling.
[27 FR 12118, Dec. 7, 1962, as amended at 44 FR 76476, Dec. 26, 1979]
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;
(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]
[[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 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.
[45 FR 80276, Dec. 4, 1980]
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 Program and Planning Branch, Office of
Management Services, 202-724-1234, 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]
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 201 of the Trade Act of 1974 (19
U.S.C. 2251), 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) or the countervailing duty provisions (19 U.S.C. 1303,
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
Commission Secretary shall promptly thereafter publish notice of the
filing of such suggestion and information, 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
[[Page 19]]
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]
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. 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;
(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
[[Page 20]]
(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. A denial shall be in writing, 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 his 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 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,
[[Page 21]]
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 unless it is the subject of a request under the
Freedom of Information Act or of judicial discovery proceedings.
(h) Scope of provisions. The provisions of Secs. 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]
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, 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 clear and legible.
(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.'' 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
[[Page 22]]
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.
[41 FR 17710, Apr. 27, 1976, as amended at 49 FR 32571, Aug. 15, 1984;
56 FR 11922, Mar. 21, 1991]
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]
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
[[Page 23]]
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
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.
[[Page 24]]
(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. Up to five double-spaced pages of
supplementary material, other than remarks read into the record, will be
accepted for the record. Supplementary material exceeding five pages may
be accepted upon a showing of such cause as may be deemed sufficient by
the presiding officials. 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. Unless otherwise ordered, fourteen (14)
clear copies shall be filed with the Secretary to the Commission. 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
[[Page 25]]
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]
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.
(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]
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
[[Page 26]]
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
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.
(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]
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
[[Page 27]]
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 ``Freedom of Information Act Request.''
(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 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]
[[Page 28]]
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 clearly indicate both on the
envelope and in the letter that it is a ``Freedom of Information Act
Appeal.''
(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 paragraphs (a) and (b) 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 paragraphs (a) and (b) 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]
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.
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 foreign governments.
(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
[[Page 29]]
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]
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
[[Page 30]]
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.
(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
[[Page 31]]
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 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
[[Page 32]]
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 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
[[Page 33]]
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 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.
[[Page 34]]
(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 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]
[[Page 35]]
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.
(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 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,
[[Page 36]]
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 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]
[[Page 37]]
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 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).
[[Page 38]]
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 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,
[[Page 39]]
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 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
[[Page 40]]
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
(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.
(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.
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
[[Page 41]]
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
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.
Sec. 201.33 Employee conduct.
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.
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.
[[Page 42]]
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 (Secs. 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 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;
[[Page 43]]
(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.
(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
[[Page 44]]
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 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
[[Page 45]]
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 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.
[[Page 46]]
(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 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.
[[Page 47]]
(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 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
[[Page 48]]
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 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
[[Page 49]]
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 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]
Secs. 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:
[[Page 50]]
(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.
Secs. 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.
(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.
[[Page 51]]
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.
Secs. 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.
Secs. 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
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
[[Page 52]]
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.
Secs. 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 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
[[Page 53]]
burdens but would nevertheless ensure that, to the maximum extent
possible, handicapped persons receive the benefits and services of the
program or activity.
Secs. 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) EEO Director, Office of Operations, Office of Data Systems,
Library Division shall be responsible for coordinating implementation of
this section. Complaints may be sent to Handicap Coordinator, Office of
Operations, Office of Investigations, 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.
(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]
Secs. 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); 4 CFR 102.3(b)(1); 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,
[[Page 54]]
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 and Budget 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 4 CFR chapter II.
(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 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 and Budget means the Office of Finance and
Budget 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.
Sec. 201.202 Purpose and scope of salary and administrative offset rules.
(a) Purpose. The purpose of Secs. 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
[[Page 55]]
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 4 CFR part 102.
(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 Secs. 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, 4 CFR chapter II.
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.
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;
[[Page 56]]
(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. 3729-3731, 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
(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,
[[Page 57]]
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 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
[[Page 58]]
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 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.
[[Page 59]]
(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 and Budget 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 and Budget 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 and Budget 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 lump-sum deduction exceeding 15 percent of disposable pay may be
made pursuant to 31 U.S.C. 3716 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 and Budget 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 and Budget may, at its discretion, determine whether
the debt to
[[Page 60]]
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 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
[[Page 61]]
creditor agency, it shall assess interest, penalties, and administrative
costs pursuant to 31 U.S.C. 3717 and 4 CFR 102.13.
(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).
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 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;
[[Page 62]]
(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 4 CFR 102.3, 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.
(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 4
CFR part 102 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 4 CFR part 102,
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.
[[Page 63]]
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 4 CFR
102.3, 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.
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.
(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.
[[Page 64]]
(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 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.
[[Page 65]]
(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 66]]
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 67]]
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: Sec. 335, 72 Stat. 680; 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).5 For other applicable rules see part 201 of this
chapter.
---------------------------------------------------------------------------
\5\ 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.
---------------------------------------------------------------------------
Sec. 204.2 Investigations.
The Commission will make an investigation for the purposes of
section 22(a) of the Agricultural Adjustment Act, as amended, only upon
request of the President.6
---------------------------------------------------------------------------
\6\ 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).
---------------------------------------------------------------------------
[[Page 68]]
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.
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
[[Page 69]]
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 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
[[Page 70]]
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 Secs. 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, 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;
availability of petition 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.
Subpart E--Investigations for Relief From Market Disruption
206.41 Applicability of subpart.
206.42 Who may file a petition.
206.43 Contents of petition.
206.44 Time for reporting.
206.45 Public report.
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.
Authority: 19 U.S.C. 1335, 2251-2254, 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, and 406 of
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the Trade Act of 1974, as amended (19 U.S.C. 2251, 2252, 2254, 2436)
(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 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 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 described in section
202(a)(1), 204(c)(1), or 406(a)(1) 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), or 406 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, or F] of part 206 of the
rules of practice and procedure of the United States International Trade
Commission''.
Sec. 206.3 Institution of investigations; publication of notice; availability of petition 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.
(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,
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 such petition or request available for public inspection (with the
exception of confidential business information).
Sec. 206.4 Notification of other agencies.
The Commission will promptly transmit copies of petitions or
requests filed and notification of investigations instituted to the
Office of the United States Trade Representative (hereinafter USTR), the
Secretary of Commerce, the Secretary of Labor, and other Federal
agencies directly concerned.
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 subparts C, D, and E of this part. A public
hearing on the subject of injury and remedy will
[[Page 72]]
be held in connection with each investigation instituted under subparts
C, D, and E of this part after reasonable notice thereof has been
published in the Federal Register.
(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 to cross-
question interested parties making presentations at the hearing.
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, 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.
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, or F
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 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.
(b) Nonconfidential summaries. Except as the Commission may
otherwise provide, a party submitting confidential business information
shall also submit
[[Page 73]]
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.
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). 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 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.
[[Page 74]]
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
(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:
[[Page 75]]
(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.
(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
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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. 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. 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 (5) 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;
[[Page 77]]
(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.
(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 him to submit to the Secretary a personal sworn
statement that, in addition to such other conditions as the Secretary
may require, he shall:
(1) Not divulge any of the confidential business information
obtained
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under the administrative protective order and not otherwise available to
him, 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 submitted to the Secretary a
signed statement in a form approved by the Secretary that they agree to
be bound by the administrative protective order (the authorized
applicant shall be deemed responsible for such persons' compliance with
the administrative protective order);
(2) Use such confidential business information solely for the
purposes of 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 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
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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 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)
[[Page 80]]
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 privileged information,
classified information, or specific information of a type 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
confidential business information in question. One version shall contain
all confidential business information, bracketed in accordance with
Sec. 206.8(c), with the specific information as to which exemption from
disclosure was granted enclosed in double brackets. This version shall
have the following warning marked on every page: ``CBI exempted from
disclosure under APO enclosed in double brackets.'' The other two
versions shall conform to and be filed in accordance with the
requirements of Sec. 206.8, except that the specific information as to
which exemption from disclosure was granted shall be redacted from those
versions of 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.
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
[[Page 81]]
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;
(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:
[[Page 82]]
(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 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
[[Page 83]]
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 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]
[[Page 84]]
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) of the Trade Act. For other applicable rules, see subpart A of
this part and part 201 of this chapter.
Sec. 206.42 Who may file a petition.
A petition under this subpart E 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 a
material injury, or the threat thereof, to such domestic industry.
Sec. 206.43 Contents of petition.
A petition under this subpart E 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
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);
[[Page 85]]
(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.
Sec. 206.44 Time for reporting.
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.
Sec. 206.45 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.
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.
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.
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
[[Page 86]]
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 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
[[Page 87]]
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.
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 Reports of progress of investigation.
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.
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.
[[Page 88]]
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.
(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
[[Page 89]]
(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, and testimony filed by parties pursuant to Secs. 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 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]
[[Page 90]]
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 Reports of progress of investigation.
The Secretary shall upon the request of a party inform the parties
to an investigation of the progress of that investigation. No such
progress report, however, shall be issued by the Secretary less than
thirty (30) days after the date of publication of commencement of an
investigation by notice in the Federal Register, nor shall the Secretary
be required to issue a report on the progress of any investigation less
than thirty (30) days after the date of issuance of the previous such
report with respect to the same investigation. A report shall be limited
to a statement of what official actions the Commission has taken since
the previous such report, if any.
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 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. An application on
[[Page 91]]
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 (5) days before the deadline for filing posthearing briefs in the
investigation, or the deadline for filing briefs in the preliminary
phase of an 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 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
[[Page 92]]
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 him to submit to the Secretary a personal sworn
statement that, in addition to such other conditions as the Secretary
may require, he shall:
(1) Not divulge any of the business proprietary information obtained
under the administrative protective order and not otherwise available to
him, 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 decisionmaking for an interested party which is a party to
the investigation; and who have submitted to the Secretary a signed
statement in a form approved by the Secretary that they agree to be
bound by the administrative protective order (the authorized applicant
shall be deemed responsible for such persons' compliance with the
administrative protective order);
(2) Use such business proprietary information solely for the
purposes of the Commission investigation then in progress or for
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 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
[[Page 93]]
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 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
[[Page 94]]
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. 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 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]
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
[[Page 95]]
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. 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.
(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]
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
[[Page 96]]
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, 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 Secs. 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\ x 11 inches. Any person not a
[[Page 97]]
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 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,
[[Page 98]]
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 four (4) 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.
[61 FR 37832, July 22, 1996]
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)
[[Page 99]]
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) 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. 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 section 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]
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]
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]
[[Page 100]]
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 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
[[Page 101]]
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.
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
[[Page 102]]
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, 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.
[[Page 103]]
(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.
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
[[Page 104]]
(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 50 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 Secs. 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.
(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.
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 per group. Comments shall not exceed fifteen
(15) pages of textual
[[Page 105]]
material, double-spaced and single-sided, on stationery measuring 8\1/2\
x 11 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 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.