Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures; Proposed Rule, 680-693 [06-9969]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 72, Number 4 (Monday, January 8, 2007)]
[Proposed Rules]
[Pages 680-693]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9969]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

[Docket No. 061121303-6301-01]
RIN 0625-AA73


Antidumping and Countervailing Duty Proceedings: Documents 
Submission Procedures; APO Procedures; Proposed Rule

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Proposed Rule; request for Comments.

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SUMMARY: The Department of Commerce (``the Department'') proposes to 
amend its regulations in antidumping (``AD'') and countervailing duty 
(``CVD'') proceedings governing information submitted to the Department 
and administrative protective orders in order to improve the 
Department's procedures and provide clarification to some aspects of 
the Department's regulations. Specifically, the Department proposes to 
amend its regulations as follows: To reflect a transfer in the function 
of receiving submissions filed in AD/CVD proceedings from the Central 
Records Unit to the Administrative Protective Order (``APO'') Unit, and 
to change the name of the APO Unit to APO/Dockets Unit; to reflect a 
transfer in the function of maintaining public service lists from the 
Central Records Unit to the APO/Dockets Unit; to update the definition 
of ``Customs Service'' to reflect the reorganization of the Executive 
Branch; to clarify that documents filed with the Department will only 
be time stamped when appropriate, for example, when an interested party 
submits a request for treatment as a voluntary respondent; to clarify 
when an APO will be placed on the record with respect to new shipper 
reviews, applications for scope rulings and changed circumstances 
reviews; to clarify when a party must serve business proprietary 
information already on the administrative record to new authorized 
applicants to the APO; to require a formal letter of appearance to 
request placement on the service list of any segment of an AD/CVD 
proceeding; and to clarify when a party is to be considered an 
``interested party'' for the purposes of the APO. Finally, the 
Department proposes amending its short form application for an APO 
(Form ITA-367).

DATES: To be assured of consideration, written comments must be 
received no later than February 28, 2007.

ADDRESSES: Submit comments to David M. Spooner, Assistant Secretary for 
Import Administration, U.S. Department of Commerce, Central Records 
Unit, Room 1870, Pennsylvania Avenue and 14th Street, NW., Washington, 
DC 20230; Attention: APO Regulations.

FOR FURTHER INFORMATION CONTACT: Ann Sebastian at (202) 482-3354 or 
William Kovatch at (202) 482-5052.

SUPPLEMENTARY INFORMATION:

Background

    Pursuant to section 777(c)(1)(A) of the Tariff Act of 1930, as 
amended (``the Act'') (19 U.S.C. 1677f(c)(1)(A)), the Department must 
make available to interested parties, under an APO, all business 
proprietary information submitted to it during the course of an 
antidumping or countervailing duty proceeding. Section 777(c)(1)(B) of 
the Act authorizes the Department to issue regulations governing the 
APO process. The Department's current regulations are codified at 19 
CFR Part 351.
    The Department last amended its APO regulations in 1998 (see 63 FR 
24391). The Department is always interested in reviewing its APO 
procedures and improving them through its regulations. Since the 
adoption of regulations in

[[Page 681]]

1998, the Department has gained insight into how its APO procedures 
work in practice. The Department believes that it is appropriate to 
propose improvements to those procedures and provide clarification to 
them where necessary. Such clarifications include not only amendments 
to the regulations, but also amendments to the short form application 
for APO access (Form ITA-367).
    In addition, since the publication of the 1998 APO regulations, the 
Department has transferred the function of receiving submissions from 
parties in antidumping and countervailing duty proceedings from Import 
Administration's Central Records Unit to the APO Unit. The Department 
therefore is amending the regulations to reflect this change.

Explanation of Particular Provisions

Section 351.102(b). Definitions. Definition of ``Customs Service'' and 
``Interested party.''

    Section 351.102(b) defines terms that appear in the Act but are not 
defined in the Act, defines terms that appear in the Department's 
regulations but do not appear in the Act, and elaborates on the meaning 
of certain terms that are defined in the Act. Currently, this section 
of the regulations contains a list of terms in alphabetical order. The 
terms themselves are not sequentially numbered. For administrative 
purposes, the Department proposes setting forth the terms defined in 
section 351.102(b) in sequentially numbered paragraphs. Specifically, 
as discussed below, numbering the terms will allow the Department to 
administer the APO function in a more precise manner. Sequentially 
numbering the terms defined in section 351.102(b) creates no additional 
requirements on parties appearing before the Department.
    Section 351.102(b) currently defines ``Customs Service'' as ``the 
United States Customs Service of the United States Department of the 
Treasury.'' Since the publication of the regulations, the Customs 
Service has been transferred to the U.S. Department of Homeland 
Security and renamed U.S. Customs and Border Protection. The Department 
therefore proposes amending this definition of ``Customs Service'' to 
reflect this change.
    Section 351.102(b) currently does not contain a definition for the 
term ``interested party.'' This has created some confusion and 
difficulty in processing APO applications. Form ITA-367, the APO 
application, requires the applicant to disclose the interested party 
status of the party the applicant represents. The current version of 
the form allows the applicant to check ``petitioner,'' ``respondent,'' 
or ``other.'' If the applicant checks ``other,'' the form requires the 
applicant to identify the section of the Department's regulations that 
defines the party's interested party status.
    The Department's experience with this version of Form ITA-367 is 
that the provision of the broad category ``other'' has led to some 
confusion. First, as stated above, the term ``interested party'' is not 
currently defined by the regulations. In addition, the Department, and 
other parties to the proceeding, have had difficulty in determining 
whether a party identifying itself as ``other'' qualifies as an 
importer of subject merchandise or one of the other categories of 
interested parties as defined by statute. This has led to difficulties 
in confirming the status of a party as an interested party as defined 
by the Act.
    The Department proposes amending section 351.102(b), by including 
the definition of ``interested party.'' This definition does not differ 
from the definition of ``interested party'' as stated in section 771(9) 
of the Act, except that an importer of subject merchandise is defined 
in a different subparagraph from a manufacturer, producer and exporter 
of the subject merchandise. Defining ``importer'' in its own 
subparagraph is necessary to permit Department officials to readily 
identify when an applicant for APO access is an importer. Should this 
amendment be adopted, applicants would be required to indicate on Form 
ITA-367 the precise subparagraph of section 351.102(b) that applies to 
the party the applicant represents.

Sections 351.103(a), 351.103(b), 351.103(c), 351.103(d), and 
351.303(b). Location and Functions of the Central Records Unit and the 
APO Unit, Filing Documents, and Service Lists

    Sections 351.103(a), 351.103(b), 351.103(c), and 351.103(d) discuss 
the functions of Import Administration's Central Records Unit and APO 
Unit. Since the publication of the regulations, the Department has 
transferred the function of receiving submissions in antidumping and 
countervailing duty proceedings (i.e., the docket function) from the 
Central Record Unit to the APO Unit. The Department proposes amending 
these sections to reflect this change, and to change the name of the 
APO Unit to the APO/Dockets Unit.
    Currently, section 351.103(b) provides that a document is not 
considered to be officially received by the Department unless it is 
stamped with the date and time of receipt. Upon review, the Department 
no longer believes that it is necessary to time-stamp every document 
submitted. In most instances, to be considered filed in a timely 
manner, a document need only be submitted by the close of business on 
the due date. Date stamping a document in such instance would be 
sufficient to establish that the document was submitted in a timely 
fashion. There are, however, a few instances where it is necessary to 
time-stamp a document to establish timeliness. In some instances, the 
Department may establish a time other than the close of business as the 
deadline for the submission. In other instances, such as when the 
Department exercises its discretion to accept voluntary respondents, it 
is necessary to establish the order in which the Department receives 
requests to be treated as a voluntary respondent. The Department 
proposes amending the regulations to remove the general requirement 
that all documents be time-stamped, and clarify that a document will 
only be time-stamped where necessary. Department officials and the APO/
Dockets Unit will continue to coordinate with each other to determine 
whether it is necessary for a document to be time-stamped, and to 
communicate such necessity with interested parties. This proposed 
changed will not affect the filing requirements on outside parties, and 
only addresses internal Department procedure.
    The Department also proposes amending the regulations to require an 
interested party to file a letter of appearance to request placement on 
the service lists of any segment of a proceeding. The letter of 
appearance should be a filing, separate from other filings, identifying 
the name of the interested party, how that party qualifies as an 
interested party, and the name of the firm representing that interested 
party if appropriate. If the interested party is a coalition or 
association as defined in sections 771(9)(A), (E), (F) or (G) of the 
Act, the letter of appearance must identify all members of the 
coalition or association. Because the letter of appearance includes 
factual information (i.e., the name of the interested party, how the 
party qualifies as an interested party), the certification requirements 
of section 351.303(g) would apply. Requiring the letter of appearance 
to be a separate document will help ensure that Department officials 
update the public service list when a party begins participating in an 
administrative proceeding. Currently, many parties already file a 
letter of appearance when

[[Page 682]]

they are participating in an administrative proceeding before the 
Department. Therefore, the burden on the public would be minimal.
    Section 351.303(b) of the Department's regulations provide 
instructions on how to address and submit documents to the Secretary 
for consideration in an antidumping or countervailing duty proceeding. 
Currently, the regulations require that submissions be addressed to the 
Central Records Unit and provides the room number. As stated above, the 
function of receiving submissions has been transferred to the APO/
Dockets Unit. Accordingly, the Department proposes amending section 
351.303(b) to reflect the transfer in function to the APO/Dockets Unit.

Section 351.204(d). Requests for Treatment as a Voluntary Respondent

    As provided in section 351.204(d) of the Department's regulations, 
if the Department limits the number of exporters or producers 
individually examined under section 777A(c)(2) or section 777A(e)(2)(A) 
of the Act, the Department will examine voluntary respondents in 
accordance with section 782(a) of the Act. In order to be able to 
clearly identify voluntary respondents, and discern the order in which 
requests for voluntary respondent treatment have been submitted, the 
Department proposes to require an interested party seeking voluntary 
respondent treatment to indicate its request clearly on the first page 
of the first submission. This will alert the APO/Dockets Unit to the 
fact that the submission should be time stamped.
    This requirement of placing the words ``Request for Voluntary 
Respondent Treatment'' in the title of the first page of the first 
submission will not create any undue burden on interested parties.

Section 351.305(a). Placing APOs on the Record in New Shipper Reviews, 
Applications for Scope Rulings, and Changed Circumstances Reviews

    Under section 351.305(a) of the current regulations, the Department 
places an APO on the record of a segment of a proceeding within two 
days of the filing of a new petition or an initiation of an 
investigation on the Department's own initiative and within five days 
after the initiation of any segment other than an investigation. The 
Department proposes clarifying that the reference to ``days'' in this 
section of the regulations refers to business days.
    With respect to new shipper reviews, an exporter or producer must 
first submit a request with certain certifications and documentation 
detailed in section 351.214(b)(2) of the Department's regulations. The 
Department decides whether to initiate a new shipper review by 
evaluating the certifications and other documentation submitted along 
with the request. At times, this evaluation includes the analysis of 
business proprietary information. Interested parties may wish to 
comment on this information before the Department decides whether to 
initiate the new shipper review. However, interested parties may only 
gain access to the business proprietary information under an APO. Under 
the current regulations, the Department does not issue an APO until 
after the new shipper review has been initiated. Therefore, to allow 
interested parties to have access to business proprietary information 
relevant to the potential initiation of a new shipper review, the 
Department proposes to amend its regulations by indicating that an APO 
will be placed on the record within five business days of the filing of 
a request for a new shipper review.
    Similarly, section 351.225(c) of the Department's regulations 
permits an interested party to request a ruling as to whether a 
particular product is within the scope of an order or a suspended 
investigation. If the Secretary can make this determination based 
solely on the information contained in the application and the 
description of the merchandise contained in the original petition, the 
initial investigation, and the prior determinations of the Secretary 
and the International Trade Commission, then the Secretary will issue a 
final ruling without requesting further information. During this 
evaluation, the Secretary may be required to analyze business 
proprietary information submitted by the applicant, and interested 
parties may wish to comment on this information. However, like new 
shipper reviews, under the current regulations the Department issues 
the APO after the initiation of a scope inquiry. Under section 
351.225(e), the Secretary will only initiate a scope inquiry if more 
information is required than that submitted with the application. To 
permit parties to have access to business proprietary information and 
comment on that information before the initiation of a scope inquiry, 
the Department proposes to amend its regulations by indicating that an 
APO will be placed on the record within five business days of the 
filing of an application for a scope ruling.
    Finally, section 351.216(b) states that the Department will 
determine whether to initiate a changed circumstances review within 
forty-five days after the date on which a request is filed. The 
Department may also self-initiate a changed circumstances review. The 
request for the initiation of a changed circumstances review may 
contain business proprietary information. Under the current 
regulations, the Department issues an APO only after initiating a 
changed circumstances review. Because interested parties may wish to 
have access to the business proprietary information and to comment on 
this information before the initiation of a changed circumstances 
review, we propose amending section 351.305(a) to place an APO on the 
record within five business days of the filing of a changed 
circumstances request or the self-initiation of a changed circumstances 
review by the Department.

Section 351.305(b). Service Requirement of Documents Already on the 
Administrative Record to New Authorized Applicants

    Prior to the adoption of the current regulations in 1998, when a 
party had already submitted business proprietary information to the 
Department and a new party applied for access to business proprietary 
information subject to APO, the Department required the first party to 
serve that information on the new party within two days of the 
Secretary's granting of access. The Department inadvertently deleted 
this requirement from the regulations adopted in 1998. We propose 
amending section 351.305(b) to restore the requirement that business 
proprietary information already on the administrative record be served 
on a party filing a timely application for access to business 
proprietary information under the APO within two business days of the 
approval of that application. The Department does not anticipate that 
this proposed requirement will increase any burden or cause undue 
hardship. In practice, parties have been serving information on a new 
party within two business days of that party's approval as an 
authorized applicant despite the absence of any regulatory requirement.
    In addition, the current regulations state that in order to 
minimize any disruption caused by late applications, a party should 
file its APO application before the first response to a questionnaire 
has been submitted. Section 351.305(b)(3) of the current regulations 
indicates that all parties who have already submitted business 
proprietary information to the administrative record must serve that 
information on the new authorized applicant within five days of the 
approval of the application. This five-

[[Page 683]]

day time period was meant to apply when the application was filed after 
the submission of the first questionnaire response, as opposed to the 
two-day time period proposed above, which is meant to apply to parties 
who apply for APO access before the submission of the first 
questionnaire response. The Department proposes amending this 
regulation to clarify that the five-day time period only applies when 
the authorized applicant has filed its application for APO access after 
the submission of the first response to a questionnaire.
    As stated, many parties already adhere to this practice. The 
regulations already contain a service requirement. This proposal merely 
addresses the timing of that service.

Section 351.305(d). Additional Documentation Required for Importers

    As discussed above, the Department and other interested parties 
have had difficulty in identifying whether a party who identifies 
itself as ``other'' on Form ITA-367 is an importer of the subject 
merchandise. Given the sensitive nature of the business proprietary 
information submitted to the Department, it is imperative that the 
Department be able to confirm that a party applying for APO access is 
indeed an ``interested party'' as defined by the Act. The Department 
proposes to require parties claiming to be importers of the subject 
merchandise to submit documentary evidence confirming their status as 
importers. The Department's preferred evidence is a copy of the Customs 
Form 7501 demonstrating that the party imported subject merchandise 
during the relevant period of investigation or period of review.
    The Department recognizes that some segments do not necessarily 
involve a specific time period, such as a changed circumstances review 
or a scope inquiry. In such circumstances, where a representative of an 
importer of subject merchandise desires to apply for APO access, the 
importer need only show that it imported subject merchandise at some 
time since the beginning of the original period of investigation. Thus, 
the Department intends that in changed circumstances reviews and scope 
inquiries, it will only require that the importer submit documentary 
evidence, such as a Customs Form 7501, demonstrating that the party 
imported subject merchandise at any time since the beginning of the 
original period of investigation.
    In other instances, such as where a party requests a scope ruling 
on a particular product it intends to import, a Customs Form 7501 may 
not be available. In such circumstances, the interested party may 
satisfy the proposed requirement by submitting any other credible 
documentary evidence demonstrating its intention to import the product 
subject to the scope inquiry.

Form ITA-367, Short Form Application for APO

    Form ITA-367 requires the applicant to identify the specific 
segment of the proceeding covered by the APO. Applicants in a new 
shipper review currently check the box next to ``other,'' identifying 
the segment and citing the Federal Register notice wherein the 
Department initiated the proceeding. The Department can initiate 
separate new shipper reviews on the same day, however, covering the 
same merchandise and the same period of review but a different exporter 
or producer. For this reason, typically, new shipper reviews are 
identified based on the name of the exporter or producer being 
reviewed. In order to provide further clarity, the Department proposes 
amending Form ITA-367 to provide for an option to check ``new shipper 
review'' and specifically identify the name of the exporter/producer 
that is covered by the new shipper review.
    With respect to scope inquiries, there may be several scope 
inquiries during the existence of an order. Therefore, in order to 
provide further clarity, the Department proposes amending Form ITA-367 
to specifically identify the product that is covered by the scope 
review.
    In the case of changed circumstances reviews, such a review may not 
necessarily be tied to a specific period of review. Thus, in order to 
provide further clarity, the Department proposes amending Form ITA-367 
to provide for an option to check ``changed circumstances review'' and 
require the applicant to identify the date on which the request for a 
changed circumstances review was filed.
    To allow the Department to identify when an interested party 
applying for APO access is an importer, the Department proposes 
amending Form ITA-367 to require the applicant to identify the specific 
subsection of the Department's regulations that define its status as an 
interested party. This proposed amendment to Form ITA-367 correlates to 
the proposed changes to the regulations as set forth in this notice.
    Section 351.305(c) states that the Secretary will provide, by the 
most expeditious means available, the APO service list to parties to 
the proceeding on the day the service list is issued or amended. The 
application is also being expanded to identify the ``Lead Applicant,'' 
and to request an e-mail address for the receipt of service lists in 
order to ensure timely notice of the issuance or amendment of the 
service list.
    The Department would like to take this opportunity to remind those 
who practice before it, that the entire Form ITA-367 must be submitted 
to the Department in order to gain access to business proprietary 
information under the APO. If any portion of the form is not 
applicable, the applicant should so indicate on the form itself, and 
submit the entire application form to the Department. Form ITA-367 is 
available on the Department's Web site at https://ia.ita.doc.gov/apo/
index.html and may be reproduced using the applicant's word processor. 
The format of the application under items 8 and 9 must be exactly as 
provided in the printed form, with no deviation. The exact format under 
items 8 and 9 may be repeated to include additional applicants, as 
required (e.g., (2), (3), (4), etc.). Each applicant must sign and date 
the application in their own hand.
    The Department would also like to remind authorized applicants that 
an acknowledgment for support staff is a requirement under item 2 of 
the APO. Failure by a firm to maintain an acknowledgment for support 
staff for each segment of each proceeding when APO access has been 
granted would be a violation of the APOs. Support staff do not apply 
separately for APO access, but they are required to sign the 
acknowledgment maintained by the firm.

Comments--Deadline, Format, Number of Copies

    The deadline for the submission of comments is February 28, 2007. 
The Department will consider all comments received before the close of 
the comment period. Comments received after the end of the comment 
period will be considered, if possible, but their consideration cannot 
be assured.
    Parties wishing to comment should submit a signed original and two 
copies of each set of comments, including reasons for any 
recommendations. To help simplify the processing and distribution of 
comments, the Department requests that a submission in electronic form 
accompany the required paper copies. Comments filed in electronic form 
should be on CD-ROM in either WordPerfect format or a format that the 
WordPerfect program can convert into WordPerfect.
    The Department will not accept comments accompanied by a request

[[Page 684]]

that a part or all of the material be treated confidentially because of 
its business proprietary nature or for any other reason. The Department 
will return such comments and materials to the persons submitting the 
comments and will not consider them in connection with this request for 
comment.
    Comments received on CD-ROM will be made available to the public on 
the Web at the following address: https://ia.ita.doc.gov/. In addition, 
upon request, the Department will make comments filed in electronic 
form available to the public on CD-ROMs (at cost) with specific 
instructions for accessing compressed data (if necessary). Any 
questions concerning file formatting, document conversion, access on 
the Web, or other electronic filing issues should be addressed to 
Andrew Lee Beller, IA Webmaster, at (202) 482-0866 or via e-mail at 
webmaster-support@ita.doc.gov.

Classification

E.O. 12866

    It has been determined that this notice is not significant for 
purposes of E.O. 12866.

Regulatory Flexibility Act

    The Chief Counsel for Regulation at the Department certified to the 
Chief Counsel for Advocacy, Small Business Administration that this 
rule, if promulgated, would not have a significant economic impact on a 
substantial number of small entities.
    The Department proposes to amend its regulations in antidumping 
(``AD'') and countervailing duty (``CVD'') proceedings governing 
information submitted to the Department and administrative protective 
orders in order to improve the Department's procedures and provide 
clarification to some aspects of the Department's regulations. 
Specifically, the Department proposes to amend its regulations as 
follows: (1) To reflect a transfer in the function of receiving 
submissions filed in AD/CVD proceedings from the Central Records Unit 
to the Administrative Protective Order (``APO'') Unit, and to change 
the name of the APO Unit to APO/Dockets Unit; (2) to reflect a transfer 
in the function of maintaining public service lists from the Central 
Records Unit to the APO/Dockets Unit; (3) to update the definition of 
``Customs Service'' to reflect the reorganization of the Executive 
Branch; (4) to clarify that documents filed with the Department will 
only be time stamped when appropriate, for example, when an interested 
party submits a request for treatment as a voluntary respondent; (5) to 
clarify when an APO will be placed on the record with respect to new 
shipper reviews, applications for scope rulings and changed 
circumstances reviews; (6) to clarify when a party must serve business 
proprietary information already on the administrative record to new 
authorized applicants to the APO; (7) to require a formal letter of 
appearance to request being placed on the service list of any segment 
of an AD/CVD proceeding; and (8) to clarify when a party is to be 
considered an ``interested party'' for the purposes of the APO. 
Finally, the Department proposes amending its short form application 
for an APO (Form ITA-367).
    The Department is unable to estimate the number of small entities 
that will be affected by this rule, as the Department does not collect 
this information. However, there is the possibility that this rule 
would impact some number of small entities. Although the number of 
small entities that may be impacted is unknown, this rule would not 
impose a significant economic impact.
    If implemented, this rule is not expected to impose a significant 
economic impact on the affected entities. Most of the amendments are 
procedural in nature and would not impose any new requirements or 
result in a significant compliance cost. The proposed requirement to 
submit a formal letter of appearance to request being placed on the 
service list of any segment of an AD/CVD proceeding; the proposed 
amendment to require an importer to submit documentary evidence of its 
status as an importer; and the proposed amendment to its short form 
application for an APO (Form ITA-367) may result in a slight increase 
in recordkeeping and reporting burden hours. ITA anticipates that these 
requirements would result in $80 or 4 additional burden hours per 
respondent. Although this proposed rule may impact a substantive number 
of small entities, the cost to these entities would be minimal. For 
this reason, the Chief Counsel for Regulation at the Department of 
Commerce certified that this rule would not have a significant economic 
impact on a substantial number of small entities.

Paperwork Reduction Act

    This rule does not contain a collection of information for purposes 
of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et 
seq.).

E.O. 12612

    This proposed rule does not contain federalism implications 
warranting the preparation of a Federalism Assessment.

List of Subjects in 19 CFR Part 351

    Administrative practice and procedure, Antidumping, Business and 
industry, Cheese, Confidential business information, Countervailing 
duties, Freedom of information, Investigations, Reporting and 
recordkeeping requirements.

    Dated: December 27, 2006.
Stephen J. Claeys,
Deputy Assistant Secretary, for Import Administration.
    For the reasons stated, it is proposed that 19 CFR Ch. III be 
amended as follows:

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

    1. The authority citation for part 351 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 
note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.
    2. Section 351.102 is revised as follows:


Sec.  351.102  Definitions.

    (a) Introduction. The Act contains many technical terms applicable 
to antidumping and countervailing duty proceedings. In the case of 
terms that are not defined in this section or other sections of this 
part, readers should refer to the relevant provisions of the Act. This 
section:
    (1) Defines terms that appear in the Act but are not defined in the 
Act;
    (2) Defines terms that appear in this Part but do not appear in the 
Act; and
    (3) Elaborates on the meaning of certain terms that are defined in 
the Act.
    (b) Definitions.
    (1) Act. ``Act'' means the Tariff Act of 1930, as amended.
    (2) Administrative review. ``Administrative review'' means a review 
under section 751(a)(1) of the Act.
    (3) Affiliated persons; affiliated parties. ``Affiliated persons'' 
and ``affiliated parties'' have the same meaning as in section 771(33) 
of the Act. In determining whether control over another person exists, 
within the meaning of section 771(33) of the Act, the Secretary will 
consider the following factors, among others: corporate or family 
groupings; franchise or joint venture agreements; debt financing; and 
close supplier relationships. The Secretary will not find that control 
exists on the basis of these factors unless the relationship has the 
potential to impact decisions concerning the production, pricing, or 
cost of the subject merchandise or foreign like product. The Secretary 
will

[[Page 685]]

consider the temporal aspect of a relationship in determining whether 
control exists; normally, temporary circumstances will not suffice as 
evidence of control.
    (4) Aggregate basis. ``Aggregate basis'' means the calculation of a 
country-wide subsidy rate based principally on information provided by 
the foreign government.
    (5) Anniversary month. ``Anniversary month'' means the calendar 
month in which the anniversary of the date of publication of an order 
or suspension of investigation occurs.
    (6) APO. ``APO'' means an administrative protective order described 
in section 777(c)(1) of the Act.
    (7) Applicant. ``Applicant'' means a representative of an 
interested party that has applied for access to business proprietary 
information under an administrative protective order.
    (8) Article 4/Article 7 review. ``Article 4/Article 7 review'' 
means a review under section 751(g)(2) of the Act.
    (9) Article 8 violation review. ``Article 8 violation review'' 
means a review under section 751(g)(1) of the Act.
    (10) Authorized applicant. ``Authorized applicant'' means an 
applicant that the Secretary has authorized to receive business 
proprietary information under an APO under section 777(c)(1) of the 
Act.
    (11) Changed circumstances review. ``Changed circumstances review'' 
means a review under section 751(b) of the Act.
    (12) Consumed in the production process. Inputs ``consumed in the 
production process'' are inputs physically incorporated, energy, fuels 
and oil used in the production process and catalysts which are consumed 
in the course of their use to obtain the product.
    (13) Cumulative indirect tax. ``Cumulative indirect tax'' means a 
multi-staged tax levied where there is no mechanism for subsequent 
crediting of the tax if the goods or services subject to tax at one 
stage of production are used in a succeeding stage of production.
    (14) Customs Service. ``Customs Service'' means the United States 
Customs and Border Protection of the United States Department of 
Homeland Security.
    (15) Department. ``Department'' means the United States Department 
of Commerce.
    (16) Direct tax. ``Direct tax'' means a tax on wages, profits, 
interests, rents, royalties, and all other forms of income, a tax on 
the ownership of real property, or a social welfare charge.
    (17) Domestic interested party. ``Domestic interested party'' means 
an interested party described in subparagraph (C), (D), (E), (F), or 
(G) of section 771(9) of the Act.
    (18) Expedited antidumping review. ``Expedited antidumping review'' 
means a review under section 736(c) of the Act.
    (19) Expedited sunset review. ``Expedited sunset review'' means an 
expedited sunset review conducted by the Department where respondent 
interested parties provide inadequate responses to a notice of 
initiation under section 751(c)(3)(B) of the Act and Sec.  
351.218(e)(1)(ii).
    (20) Export insurance. ``Export insurance'' includes, but is not 
limited to, insurance against increases in the cost of exported 
products, nonpayment by the customer, inflation, or exchange rate 
risks.
    (21) Factual information. ``Factual information'' means:
    (i) Initial and supplemental questionnaire responses;
    (ii) Data or statements of fact in support of allegations;
    (iii) Other data or statements of facts; and
    (iv) Documentary evidence.
    (22) Fair value. ``Fair value'' is a term used during an 
antidumping investigation, and is an estimate of normal value.
    (23) Firm. For purposes of subpart E (Identification and 
Measurement of Countervailable Subsidies), ``firm'' is used to refer to 
the recipient of an alleged countervailable subsidy, including any 
individual, company, partnership, corporation, joint venture, 
association, organization, or other entity.
    (24) Full sunset review. ``Full sunset review'' means a full sunset 
review conducted by the Department under section 751(c)(5) of the Act 
where both domestic interested parties and respondent interested 
parties provide adequate response to a notice of initiation under 
section 751(c)(3)(B) of the Act and Sec.  351.218(e)(1)(i) and 
351.218(e)(1)(ii).
    (25) Government-provided. ``Government-provided'' is a shorthand 
expression for an act or practice that is alleged to be a 
countervailable subsidy. The use of the term ``government-provided'' is 
not intended to preclude the possibility that a government may provide 
a countervailable subsidy indirectly in a manner described in section 
771(5)(B)(iii) of the Act (indirect financial contribution).
    (26) Import charge. ``Import charge'' means a tariff, duty, or 
other fiscal charge that is levied on imports, other than an indirect 
tax.
    (27) Importer. ``Importer'' means the person by whom, or for whose 
account, subject merchandise is imported.
    (28) Indirect tax. ``Indirect tax'' means a sales, excise, 
turnover, value added, franchise, stamp, transfer, inventory, or 
equipment tax, a border tax, or any other tax other than a direct tax 
or an import charge.
    (29) Interested party. For the purpose of submitting an application 
for APO access (Form ITA-367), ``Interested Party'' means:
    (i) A foreign manufacturer, producer, or exporter of subject 
merchandise,
    (ii) the United States importer of subject merchandise,
    (iii) a trade or business association a majority of the members of 
which are producers, exporters, or importers of subject merchandise,
    (iv) the government of a country in which subject merchandise is 
produced or manufactured or from which such merchandise is exported,
    (v) a manufacturer, producer, or wholesaler in the United States of 
a domestic like product,
    (vi) a certified union or recognized union or group of workers 
which is representative of an industry engaged in the manufacture, 
production, or wholesale in the United States of a domestic like 
product,
    (vii) a trade or business association a majority of whose members 
manufacture, produce, or wholesale a domestic like product in the 
United States,
    (viii) an association, a majority of whose members is composed of 
interested parties described in subparagraph (C), (D), or (E) of 
section 771(9) of the Act with respect to a domestic like product, and
    (ix) a coalition or trade association as described in section 
771(9)(G) of the Act.
    (30) Investigation. Under the Act and this Part, there is a 
distinction between an antidumping or countervailing duty investigation 
and a proceeding. An ``investigation'' is that segment of a proceeding 
that begins on the date of publication of notice of initiation of 
investigation and ends on the date of publication of the earliest of:
    (i) Notice of termination of investigation,
    (ii) Notice of rescission of investigation,
    (iii) Notice of a negative determination that has the effect of 
terminating the proceeding, or
    (iv) An order.
    (31) Loan. ``Loan'' means a loan or other form of debt financing, 
such as a bond.
    (32) Long-term loan. ``Long-term loan'' means a loan, the terms of

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repayment for which are greater than one year.
    (33) New shipper review. ``New shipper review'' means a review 
under section 751(a)(2) of the Act.
    (34) Order. An ``order'' is an order issued by the Secretary under 
section 303, section 706, or section 736 of the Act or a finding under 
the Antidumping Act, 1921.
    (35) Ordinary course of trade. ``Ordinary course of trade'' has the 
same meaning as in section 771(15) of the Act. The Secretary may 
consider sales or transactions to be outside the ordinary course of 
trade if the Secretary determines, based on an evaluation of all of the 
circumstances particular to the sales in question, that such sales or 
transactions have characteristics that are extraordinary for the market 
in question. Examples of sales that the Secretary might consider as 
being outside the ordinary course of trade are sales or transactions 
involving off-quality merchandise or merchandise produced according to 
unusual product specifications, merchandise sold at aberrational prices 
or with abnormally high profits, merchandise sold pursuant to unusual 
terms of sale, or merchandise sold to an affiliated party at a non-
arm's length price.
    (36) Party to the proceeding. ``Party to the proceeding'' means any 
interested party that actively participates, through written 
submissions of factual information or written argument, in a segment of 
a proceeding. Participation in a prior segment of a proceeding will not 
confer on any interested party ``party to the proceeding'' status in a 
subsequent segment.
    (37) Person. ``Person'' includes any interested party as well as 
any other individual, enterprise, or entity, as appropriate.
    (38) Price adjustment. ``Price adjustment'' means any change in the 
price charged for subject merchandise or the foreign like product, such 
as discounts, rebates and post-sale price adjustments, that are 
reflected in the purchaser's net outlay.
    (39) Prior-stage indirect tax. ``Prior-stage indirect tax'' means 
an indirect tax levied on goods or services used directly or indirectly 
in making a product.
    (40) Proceeding. A ``proceeding'' begins on the date of the filing 
of a petition under section 702(b) or section 732(b) of the Act or the 
publication of a notice of initiation in a self-initiated investigation 
under section 702(a) or section 732(a) of the Act, and ends on the date 
of publication of the earliest notice of:
    (i) Dismissal of petition,
    (ii) Rescission of initiation,
    (iii) Termination of investigation,
    (iv) A negative determination that has the effect of terminating 
the proceeding,
    (v) Revocation of an order, or
    (vi) Termination of a suspended investigation.
    (41) Rates. ``Rates'' means the individual weighted-average dumping 
margins, the individual countervailable subsidy rates, the country-wide 
subsidy rate, or the all-others rate, as applicable.
    (42) Respondent interested party. ``Respondent interested party'' 
means an interested party described in subparagraph (A) or (B) of 
section 771(9) of the Act.
    (43) Sale. A ``sale'' includes a contract to sell and a lease that 
is equivalent to a sale.
    (44) Secretary. ``Secretary'' means the Secretary of Commerce or a 
designee. The Secretary has delegated to the Assistant Secretary for 
Import Administration the authority to make determinations under title 
VII of the Act and this Part.
    (45) Section 753 review. ``Section 753 review'' means a review 
under section 753 of the Act.
    (46) Section 762 review. ``Section 762 review'' means a review 
under section 762 of the Act.
    (47) Segment of proceeding.
    (i) In general. An antidumping or countervailing duty proceeding 
consists of one or more segments. ``Segment of a proceeding'' or 
``segment of the proceeding'' refers to a portion of the proceeding 
that is reviewable under section 516A of the Act.
    (ii) Examples. An antidumping or countervailing duty investigation 
or a review of an order or suspended investigation, or a scope inquiry 
under Sec.  351.225, each would constitute a segment of a proceeding.
    (48) Short-term loan. ``Short-term loan'' means a loan, the terms 
of repayment for which are one year or less.
    (49) Sunset review. ``Sunset review'' means a review under section 
751(c) of the Act.
    (50) Suspension of liquidation. ``Suspension of liquidation'' 
refers to a suspension of liquidation ordered by the Secretary under 
the authority of title VII of the Act, the provisions of this Part, or 
section 516a(g)(5)(C) of the Act, or by a court of the United States in 
a lawsuit involving action taken, or not taken, by the Secretary under 
title VII of the Act or the provisions of this Part.
    (51) Third country. For purposes of subpart D, ``third country'' 
means a country other than the exporting country and the United States. 
Under section 773(a) of the Act and subpart D, in certain circumstances 
the Secretary may determine normal value on the basis of sales to a 
third country.
    (52) URAA. ``URAA'' means the Uruguay Round Agreements Act.
    3. Section 351.103 is revised as follows:


Sec.  351.103  Central Records Unit and Administrative Protective Order 
and Dockets Unit.

    (a) Import Administration's Central Records Unit maintains a Public 
File Room in Room B-099, U.S. Department of Commerce, Pennsylvania 
Avenue and 14th Street, NW., Washington, DC 20230. The office hours of 
the Public File Room are between 8:30 a.m. and 5 p.m. on business days. 
Among other things, the Central Records Unit is responsible for 
maintaining an official and public record for each antidumping and 
countervailing duty proceeding (see Sec.  351.104), and the Subsidies 
Library (see section 775(2) and section 777(a)(1) of the Act).
    (b) Import Administration's Administrative Protective Order and 
Dockets Unit (APO/Dockets Unit) is located in Room 1870, U.S. 
Department of Commerce, Pennsylvania Avenue and 14th Street, NW., 
Washington, DC 20230. The office hours of the APO/Dockets Unit are 
between 8:30 a.m. and 5 p.m. on business days. Among other things, the 
APO/Dockets Unit is responsible for receiving submissions from 
interested parties, issuing administrative protective orders (APOs), 
maintaining the APO service list and the public service list as 
provided for in paragraph (d) of this section, releasing business 
proprietary information under APO, and conducting APO violation 
investigations. The APO/Dockets Unit also is the contact point for 
questions and concerns regarding claims for business proprietary 
treatment of information and proper public versions of submissions 
under Sec.  351.105 and Sec.  351.304.
    (c) Filing of documents with the Department. While persons are free 
to provide Department officials with courtesy copies of documents, no 
document will be considered as having been received by the Secretary 
unless it is submitted to the Import Administration's APO/Dockets Unit 
in Room 1870 and is stamped with the date, and where necessary the 
time, of receipt.
    (d) Service list. The APO/Dockets Unit will maintain and make 
available a public service list for each segment of a proceeding. The 
service list for an application for a scope ruling is described in 
Sec.  351.225(n).
    (1) To be included on the public service list for a particular 
segment,

[[Page 687]]

each interested party must file a letter of appearance. The letter of 
appearance must identify the name of the interested party, how that 
party qualifies as an interested party, and the name of the firm, if 
any, representing the interested party in this segment of the 
proceeding. The letter of appearance must be filed separately from any 
other document filed with the Department. If the interested party is a 
coalition or association as defined in subparagraph (A), (E), (F) or 
(G) of section 771(9) of the Act, the letter of appearance must 
identify all of the members of the coalition or association.
    (2) Each interested party that asks to be included on the public 
service list for a segment of a proceeding must designate a person to 
receive service of documents filed in that segment.
    4. Amend Sec.  351.204 by adding paragraph (d)(4) to read as 
follows:


Sec.  351.204  Time periods and persons examined; voluntary 
respondents; exclusions.

* * * * *
    (d) * * *
    (4) Requests for voluntary respondent treatment. An interested 
party seeking treatment as a voluntary respondent must so indicate by 
including as a title on the first page of the first submission, 
``Request for Voluntary Respondent Treatment.''
* * * * *
    5. Revise paragraph (b) of section 351.303 as follows:


Sec.  351.303  Filing, format, translation, service, and certification 
of documents.

* * * * *
    (b) Where to file; time of filing. Persons must address and submit 
all documents to the Secretary of Commerce, Attention: Import 
Administration, APO/Dockets Unit, Room 1870, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230, between the hours of 8:30 a.m. and 5 p.m. on business days (see 
Sec.  351.103(b)). If the applicable time limit expires on a non-
business day, the Secretary will accept documents that are filed on the 
next business day.
* * * * *
    6. Section 351.305 is amended by revising paragraphs (a) 
introductory text and (b)(3) and by adding paragraphs (b)(4) and (d) to 
read as follows:


Sec.  351.305  Access to business proprietary information.

    (a) The administrative protective order. The Secretary will place 
an administrative protective order on the record within two business 
days after the day on which a petition is filed or an investigation is 
self-initiated, within five business days after the day on which a 
request for a new shipper review is properly filed in accordance with 
Sec.  351.214 and Sec.  351.303 or an application for a scope ruling is 
properly filed in accordance with Sec.  351.225 and Sec.  351.303, 
within five business days after the day on which a request for a 
changed circumstances review is properly filed in accordance with Sec.  
351.216 and Sec.  351.303 or a changed circumstances review is self-
initiated, or five business days after initiating any other segment of 
a proceeding. The administrative protective order will require the 
authorized applicant to:
* * * * *
    (b) * * *
    (3) With respect to proprietary information submitted to the 
Secretary on or before the date on which the Secretary grants access to 
a qualified applicant, except as provided in paragraph (b)(4) of this 
section, within two business days the submitting party shall serve the 
party which has been granted access, in accordance with paragraph (c) 
of this section.
    (4) To minimize the disruption caused by late applications, an 
application should be filed before the first questionnaire response has 
been submitted. Where justified, however, applications may be filed up 
to the date on which the case briefs are due, but any applicant filing 
after the first questionnaire response is submitted will be liable for 
costs associated with the additional production and service of business 
proprietary information already on the record. Parties have five 
business days to serve their business proprietary information already 
on the record to a party who has filed an application after the 
submission of the first questionnaire response and is authorized to 
receive such information after such information has been placed on the 
record.
* * * * *
    (d) Additional filing requirements for importers. If an applicant 
represents a party claiming to be an interested party by virtue of 
being an importer, then the applicant shall submit, along with the Form 
ITA-367, documentary evidence demonstrating that the party imports 
merchandise either subject to the antidumping or countervailing duty 
order, or subject to a scope inquiry.

    Note: The following form will not appear in the Code of Federal 
Regulations.

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