Final Procedures for Considering Requests Under the Commercial Availability Provision of the Dominican Republic-Central America-United States Free Trade Agreement, 13256-13264 [E7-5102]

Agencies

• Committee for the Implementation of Textile Agreements

[Federal Register Volume 72, Number 54 (Wednesday, March 21, 2007)]
[Notices]
[Pages 13256-13264]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-5102]


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COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS


Final Procedures for Considering Requests Under the Commercial 
Availability Provision of the Dominican Republic-Central America-United 
States Free Trade Agreement

March 15, 2007.
AGENCY: Committee for the Implementation of Textile Agreements (CITA).

ACTION: Summary and response to comments concerning the CAFTA-DR 
commercial availability interim procedures; notice of final procedures.

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SUMMARY: This notice summarizes the comments received concerning the 
Interim Procedures and provides responses to those comments. See 
Interim Procedures for Considering Requests Under the Commercial 
Availability Provision to the Dominican Republic-Central America-United 
States Free Trade Agreement, 71 FR 9315 (February 23, 2006).

EFFECTIVE DATE: The date of entry into force of the Dominican-Central 
America-United States Free Trade Agreement.

FOR FURTHER INFORMATION CONTACT: Richard Stetson, Office of Textiles 
and Apparel, U.S. Department of Commerce, (202) 482-3400.

SUPPLEMENTARY INFORMATION:

    Authority: Section 203(o)(4) of the Dominican Republic-Central 
America-United States Free Trade Agreement Implementation Act 
(``CAFTA-DR''); the Statement of Administrative Action (``SAA''), 
accompanying the CAFTA-DR, at 16-20.

Comments and Responses Concerning the Interim Procedures
    On February 21, 2006, the Committee for the Implementation of 
Textile Agreements (``CITA'') issued a Federal Register notice advising 
interested parties of Interim Procedures that CITA would follow in 
implementing certain provisions of the Dominican Republic-Central 
America-United States Free Trade Agreement Implementation Act (``CAFTA-
DR Implementation Act''), namely the procedures for modification of the 
list of fabrics, yarns or fibers not available in commercial quantities 
in a timely manner in the countries that are Parties to the CAFTA-DR 
Agreement (``CAFTA-DR'' or ``Agreement''), as set out in Annex 3.25 of 
the CAFTA-DR. CITA has reviewed and considered all submitted comments, 
and below is a summary of and response to those comments.
    Standards For Submissions: One commentator noted that the interim 
procedures did not provide a factual standard for determining the 
substitutability of other products for the product subject to the 
commercial availability request. See, e.g., sections 4(b)(4) and 
6(b)(2)(iv) of the Interim Procedures. CITA has not adopted this 
suggestion. A wide range of products may be the subject of a commercial 
availability request. As each commercial availability request is 
evaluated on the basis of the facts contained therein, it would be 
impracticable to set forth a uniform standard for substitutability;

[[Page 13257]]

rather, CITA will examine each request and any subsequent responses on 
a case-by-case basis.
    The same commentator suggested that an offer made in response to a 
request must contain an explicit commitment by the potential CAFTA-DR 
supplier to immediately deliver the product in question or one 
determined to be substitutable. CITA has not adopted this suggestion. 
Section 203(o)(4)(C) of the CAFTA-DR Implementation Act sets forth the 
standard that the subject product be delivered ``in a timely manner.'' 
What is ``timely'' in any given situation can only be determined on a 
case-by-case basis.
    One commentator asked that CITA clarify that in addition to 
accepting responses that object to a request, CITA will also accept 
submissions in support of a request. Section 203(o)(4)(C)(iii)(II) of 
the CAFTA-DR Implementation Act provides for a determination as to 
whether any ``interested entity has objected to the request.'' Section 
6 of the Interim Procedures required that an objection to the request 
contain an offer to supply, and that both offers to supply and rebuttal 
submissions provide information to substantiate the claims contained in 
the respective submissions. This requirement is maintained in section 6 
of the Final Procedures. Thus, CITA will not consider submissions in 
support of a request in making commercial availability determinations.
    Removal From Annex 3.25 List: One commentator noted that the 
procedures should contain an explicit statement that all products 
already approved under Trade Preference Programs (Caribbean Basin Trade 
partnership Act (``CBTPA''), African Growth and Opportunity Act 
(``AGOA''), and the Andean Trade Promotion and Drug Eradication Act 
(``ATPDEA'') and added to the list in Annex 3.25 of CAFTA-DR cannot be 
removed from Annex 3.25. A different commentator asked that CITA 
confirm that products added to the list in Annex 3.25 since the date 
that the CAFTA-DR was signed cannot be removed from that list. Article 
3.25.5(a) of the CAFTA-DR and section 203(o)(4)(E)(I) of the CAFTA-DR 
Implementation Act provide that fabrics, yarns, or fibers added to the 
list in Annex 3.25 since the date the CAFTA-DR was signed are subject 
to removal. Section 9 of Final Procedures accurately reflects these 
statutory requirements.
    Public Notice: One commentator asserted that the procedures' 
reliance on Internet notification and electronic mail (``email'') 
correspondence will result in delays or failures to distribute the 
information fully, especially for small companies relying on outside 
consultants. Moreover, the commentator stated that forbearing the use 
of a Federal Register notification results in greater risk for parties 
to be uninformed of developments in these proceedings. Another 
commentator alleges that as these procedures are a federal 
administrative process, publication in the Federal Register is required 
so that all parties may be assured of notification. Given the 
abbreviated timeline for these proceedings, Internet and email 
communications provide more timely notification than publication in the 
Federal Register and allow all parties equal opportunity for 
notification. This is particularly relevant for parties outside of the 
United States. Further, given the abbreviated timeline for such 
proceedings, Internet and email communications provide interested 
entities with more time to allocate to reviewing information and 
providing submissions than Federal Register publication would allow. 
Moreover, although a notice published in the Federal Register does 
constitute ``public notice,'' it is not the only means by which to 
notify the public. CITA has widely publicized that any interested party 
may receive its email notifications and that all public documents will 
be posted on its website. This system provides broad access and 
accessibility to interested parties inside and outside of the United 
States.
    Another commentator noted that CITA's requirement to submit hard 
copies of submissions via express courier is too inflexible, and 
requests that CITA accept hand-delivered submissions accompanied by an 
appropriate receipt that allows confirmation of delivery. CITA has not 
adopted this suggestion. In light of the abbreviated timeline for such 
proceedings, delivery by express courier permits tracking of 
submissions and avoids the possibility of documents being lost or 
misplaced.
    One commentator asked that CITA accept submissions of electronic 
information in PDF format. CITA has adopted this suggestion and 
clarified this point in the Final Procedures.
    Other commentators asked that CITA advise interested parties of all 
deadlines, extensions, availability of samples for public inspection, 
and the posting of responses on the website in its email notifications. 
Additional commentators requested that the procedures clarify that 
information on determinations, including ``Deemed Approvals'' and 
removal of restrictions will be provided through email notifications, 
website postings, and publication in the Federal Register. CITA has 
adopted this suggestion and clarified these points in its Final 
Procedures.
    Contents of Requests and Responses: A commentator suggested that 
requests should include ``offers to buy,'' as responses are required to 
contain ``offers to supply,'' to prevent speculative and spurious 
requests by potential buyers. CITA has not adopted this suggestion. 
CITA has no authority to obligate or compel requesters to purchase 
products, and therefore, cannot require requesters to include an 
``offer to buy.'' However, should a subject or substitutable product be 
available from a CAFTA-DR supplier, articles containing such products 
from third-country sources would not qualify for preferential trade 
benefits.
    Another commentator suggested that denials, approvals in restricted 
quantities, or removals contain contact information of the potential 
CAFTA-DR supplier(s) of the subject product(s). This information would 
already be contained in any response with an offer to supply or 
rebuttal submission. Moreover, as this information is posted on the 
Internet, there is no need to duplicate such information in CITA's 
determination notice.
    The same commentators suggested that responses with an offer to 
supply should contain a sample of the petitioned or allegedly 
substitutable product. CITA is not adopting this suggestion. CITA notes 
that given the abbreviated timeline to conduct these proceedings and 
depending on the nature of the requested product, it may not be 
possible for an interested entity to provide a sample in all 
situations. Samples may be submitted with requests or offers to supply, 
but this is not required. CITA notes that in the event that the 14-day 
extension is invoked, interested entities are provided with additional 
time to provide a sample product to substantiate their claims should 
they choose to do so.
    A commentator asked that CITA allow discretion regarding treatment 
of business confidential information in special circumstances, such as 
when a potential supplier wants to keep its name confidential for fear 
of retaliation. CITA has not adopted this suggestion. In order to 
conduct this procedure in an open and fair manner, CITA finds it is 
necessary for all participants to know: (1) the names of potential 
suppliers that have been contacted by petitioners, and (2) those 
interested entities who object to the request. However, specific 
proprietary information may be treated as business confidential 
information. See section 3 of the Final Procedures.

[[Page 13258]]

    Restricted Quantities: One commentator was strongly opposed to an 
automatic review of restricted quantities in a CITA determination, 
alleging that such reviews would burden parties and CITA with 
unnecessary processes. Moreover, this commentator claims that the 
automatic review is not required by the legislation. Section 
203(o)(4)(C)(vi) of the CAFTA-DR Implementation Act provides that the 
restriction may be eliminated not later than six months after the 
product is added to the list in Annex 3.25 of the Agreement in a 
restricted quantity. Therefore, CITA may review current circumstances 
to determine whether eliminating the restricted quantity is warranted. 
This section of the Final Procedures has been revised to provide 
clarity. See section 8(c)(3) of the Final Procedures.
    One commentator asked that CITA specify how it will determine a 
given quantity in determinations that involve restricted quantities. In 
the course of the proceeding, based on the information submitted , CITA 
will specify an amount that can be provided by the CAFTA-DR 
supplier(s). CITA will provide additional explanation in a Frequently 
Asked Questions (``FAQ'') document that will be made available on its 
website.
    Another commentator requests that in section 8(c)(2) of the Interim 
Procedures, regarding approvals in unrestricted quantities, the 
language be modified to read, ``... if CITA determines that no CAFTA-DR 
supplier(s) or manufacturer(s) could fulfill any amount of the 
request.'' CITA has determined to remove this sentence all together, as 
it is redundant to the previous sentence.
    The same commentator asked that CITA consider eliminating a 
quantity restriction only upon receipt of a request from an interested 
entity. CITA has not adopted this suggestion. Section 203(o)(4)(C)(vi) 
of the CAFTA-DR Implementation Act does not require that a request be 
submitted to CITA, but only that CITA may remove the restriction within 
six months after the product is added to the Annex 3.25 list in a 
restricted quantity.
    A commentator asked that CITA clarify that approvals in restricted 
quantities take effect 30 days after the official receipt of the 
request. CITA is required to make a determination, whether a denial, 
approval in an unrestricted quantity, or an approval in a restricted 
quantity, within the 30 U.S. business-day deadline, with the caveat 
that CITA may extend the deadline for an additional 14 U.S. business 
days should additional information be required. See Section 8(c) of the 
Interim and Final Procedures.
    Another commentator asked that CITA specify that the effective date 
of the elimination of a restriction will be six months after the date 
of publication of the notice. CITA has not adopted this suggestion. 
CITA notes that section 203(o)(4)(C)(vi) of the CAFTA-DR Implementation 
Act does not specify the effective date for removal of the restricted 
quantity should CITA make such a determination. CITA would publish in 
the Federal Register any modification to products on the Annex 3.25 
list, such as removal of a restriction, which in effect adds a product 
to the Annex 3.25 list in an unrestricted quantity. CITA notes that 
section 203(o)(4)(C)(v) of the CAFTA-DR Implementation Act specifies 
that the effective date for adding products to the Annex 3.25 list in 
an unrestricted or restricted quantity is the date of publication in 
the Federal Register.
    A commentator asked that CITA clarify that a review to determine 
whether to remove restricted quantities can take place later than six 
months after adding the product in a restricted quantity to the Annex 
3.25 list. CITA has not adopted this suggestion. The procedure in 
section 8(c)(3)(ii) of the Final Procedures implements Section 
203(o)(4)(C)(vi) of the CAFTA-DR Implementation Act which provides only 
for a review not later than six months after the product is added to 
the Annex 3.25 list in a restricted quantity.
    Changed Circumstances: Several commentators requested that CITA 
clarify a discrepancy in the timeframes provided for reconsideration of 
determinations in sections 8(c)(6) and 9(a) of the interim procedures. 
Another commenter requested that CITA strike section 8(c)(6).
    In section 8(c)(6) of the Interim Procedures, CITA proposed to 
allow for proceedings based upon changed circumstances. Several 
commentators expressed that CITA does not possess statutory authority 
to conduct changed circumstances proceedings. The Final Procedures 
clarify when it is appropriate for the agency to conduct a proceeding 
based upon changed circumstances. It is CITA's intention at this time 
to exercise its inherent authority to reconsider, and/or subsequently 
amend, commercial availability determinations that may have been 
procured by, e.g., error, fraud, or similar faults. See, e.g., Elkem 
Metals, et al. v. United States, 26 C.I.T. 234, 239, 193 F. Supp. 2d 
1314, 1319-20 (2002) (``It is indeed the general rule that 
administrative agencies in general...have the inherent authority to 
institute reconsideration proceedings so as to `vindicate the integrity 
of the administrative process.'''); Belville Min. Co. v. U.S., 999 F.2d 
989, 997 (6th Cir. 1993) (``Even where there is no express 
reconsideration authority for an agency...the general rule is that an 
agency has inherent authority to reconsider its decision, provided that 
reconsideration occurs within a reasonable time after the first 
decision.'')(citations and internal quotations omitted)); Bookman v. 
United States, 197 Ct. Cl. 108, 453 F.2d 1263, 1265 (1972) (explaining 
the general rule that ``every tribunal, judicial or administrative, has 
some power to correct its own errors or otherwise modify its judgment, 
decree, or order'' and that ``[courts] will sustain the reconsidered 
decision of an agency, as long as the administrative action is 
conducted within a short and reasonable time'') (citations and internal 
quotations omitted)); Gilmore Steel Corp. v. U.S., 7 C.I.T. 219, 223, 
585 F. Supp. 670, 674 (1984) (holding that the International Trade 
Administration had the authority to correct a manifest error that 
``taints the proceeding''); Gun South, Inc. v. Brady, 877 F.2d 858, 862 
(11th Cir. 1989) (concluding that the Bureau of Alcohol, Tobacco, and 
Firearms ``must necessarily retain the power to correct the erroneous 
approval of firearms import applications'' despite the absence of 
express statutory authority).
    Therefore, the proposed changed circumstances provision was not 
based on statutory changes made by the CAFTA-DR Implementation Act, but 
rather relied on the longstanding inherent authority that CITA has 
always possessed. See cases cited supra. Further, neither the CAFTA-DR 
Implementation Act nor case precedent prohibits the proposed 
proceeding. In the interest of fairness and transparency, however, it 
seems appropriate to clarify the agency's inherent authority to address 
such faults in the conduct of the proceeding. In the Final Procedures, 
CITA has deleted section 8(c)(6) and provided a clarification in the 
``Background'' section.
    Deadlines: Several commentators noted that the deadlines set forth 
by the procedures do not allow for extensions for responses with offers 
to supply or rebuttal comments. The procedures do allow for CITA to 
extend the time limit for responses with offers to supply and rebuttal 
comments. However, even if an extension is provided, CITA is required 
to meet the statutory deadline for making a determination. See sections 
6 and 7of the Final Procedures; see also,

[[Page 13259]]

e.g., section 203(o)(4)(C)(iv) of the CAFTA-DR Implementation Act.
    Another commentator suggested that CITA begin the timeline for the 
proceeding from the date of publication of the commercial availability 
request rather than the date of its official receipt by CITA, which 
would allow for two additional days for submitting responses with 
offers to supply. CITA has not adopted this suggestion, as CITA needs 
sufficient time to review the completeness of commercial availability 
requests before notifying interested parties that a commercial 
availability request has been submitted and accepted. At the same time, 
the statute requires that the determination be made within a certain 
time period from the date of submission. Therefore, in order for CITA 
to make a commercial availability determination within the statutorily 
prescribed deadlines, CITA needs the two days in question to review the 
completeness of the commercial availability request before notifying 
interested parties that a request has been submitted and accepted. See 
section 203(o)(4)(C)(iv) of the CAFTA-DR Implementation Act.
    Another commentator suggested that when CITA seeks to meet with 
interested entities during an extended review period, the meeting 
should include all sides of the issue and be open to the public. Should 
CITA convene a meeting between the requester and interested entities 
providing offers to supply, such meetings will be public and conducted 
in an open manner.
    A commentator explained that the procedures should state that CITA 
may determine to extend the 30-day deadline for an additional 14 days 
to obtain additional information. Section 8 of the Final Procedures 
explains that CITA is permitted to extend the 30 U.S. business-day 
deadline for an additional 14 U.S. business days. This same section of 
the procedures clearly explains the purpose of the 14 U.S. business day 
extension. See also section 203(o)(4)(c)(iv) of the CAFTA-DR 
Implementation Act.
    Another commentator asked that CITA add in section 8(c)(3)(i) of 
the Interim Procedures the phrase, ``or not more than 44 U.S. business 
days where extension is provided...'' CITA has adopted this suggestion 
in its Final Procedures.
    A commentator requested that CITA clarify that if CITA provides an 
extension for submitting responses with offers to supply, CITA's 
determinations will still meet the statutory deadline. CITA has adopted 
this suggestion in its Final Procedures.
    One commentator asked that CITA acknowledge that in ``emergency 
circumstances'' CITA could make a decision prior to its 30 U.S. 
business-day deadline. CITA has not adopted this suggestion. CITA is 
required to make a determination ``within'' 30 U.S. business days of 
receipt of a commercial availability request, unless an extension is 
provided. See section 203(o)(4)(C)(iv) of the CAFTA-DR Implementation 
Act. Moreover, each proceeding must allow all interested entities 
sufficient time to respond with offers to supply and provide rebuttal 
comments in the course of the proceeding.
    Deemed Approval: One commentator objected to the provision 
regarding ``Deemed Approval,'' noting that such requirements set a 
negative precedent for future procedures. CITA has not adopted this 
suggestion. Section 203(o)(4)(D) of the CAFTA-DR Implementation Act 
provides expressly for the ``Deemed Approval'' procedure.
    Another commentator asked that the ``Deemed Approval'' provision 
apply to all determinations in these proceedings, not only to 
commercial availability requests to add a given product to Annex 3.25. 
Section 203(o)(4)(D) of the CAFTA-DR Implementation Act provides that 
the ``Deemed Approval'' process only applies to commercial availability 
requests and not to requests to remove or restrict.
    Interested Entities: One commentator claimed that CITA 
inadvertently limited participation in commercial availability 
proceedings by using the term ``interested entities'' to identify who 
may request to be included on the email notification list. The Final 
Procedures clarify that any interested party can be included on the 
mass email notification list.
    Another commentator asked that CITA clarify that trade associations 
are an ``interested entity.'' CITA has not adopted this suggestion. The 
term ``interested entity'' is defined in section 203(o)(4)(B)(i) of the 
CAFTA-DR Implementation Act, and this definition does not include trade 
associations. However, trade associations can participate in the 
process as an interested party.
    A commentator noted that the language of the procedures differs 
from the Agreement and the CAFTA-DR Implementation Act, using the 
standard for determining whether to add a product to the Annex 3.25 
list as ``are not available'' instead of ``are available'' in the 
CAFTA-DR countries. The language of the procedures is consistent with 
both the Agreement and the CAFTA-DR Implementation Act.
    One commentator asked that CITA clarify that non-essential 
character components are eligible for determinations. The CAFTA-DR 
Implementation Act provides for determinations whether ``fabrics, 
yarns, or fibers'' are to be added to the list in Annex 3.25 of the 
Agreement. See section 203(o)(4)(A). Further, Section Notes 2, 3, and 4 
to Section XI of Annex 4.1 of the Agreement provides for how the list 
of fabrics, yarns, and fibers in Annex 3.25 is taken into account in 
applying the Agreement's rules of origin. Nothing in the commercial 
availability process alters the rules of origin contained in the 
Agreement.
    Several commentators asked that CITA elaborate on several of the 
provisions included in the procedures, including ``Deemed Approval,'' 
approvals with restricted quantities, the contents of commercial 
availability requests, responses with offers to supply, and rebuttal 
comments. CITA has adopted this suggestion and will provide further 
explanations in a FAQ document to be made available on its website.
    Another commentator asked that CITA review its procedures after one 
year to determine if any modifications are necessary. The Final 
Procedures provide that the procedures may be modified at any time to 
address concerns that may arise. CITA notes that these are 
administrative procedures rather than regulations, and can be modified 
as needed.

Final Procedures

    This notice also sets forth the final procedures the Committee for 
the Implementation of Textile Agreements (``CITA'') will follow in 
implementing certain provisions of the Dominican Republic-Central 
America-United States Free Trade Agreement Implementation Act (``CAFTA-
DR Implementation Act''). Section 203(o)(4) of the CAFTA-DR 
Implementation Act establishes procedures for the President to modify 
the list of fabrics, yarns, or fibers not available in commercial 
quantities in a timely manner in the countries that are Parties to the 
CAFTA-DR, as set out in Annex 3.25 of the Agreement. The President has 
delegated to CITA the authority to determine whether a fabric, yarn, or 
fiber is not available in commercial quantities in a timely manner in 
CAFTA-DR countries and has directed CITA to establish procedures that 
govern the submission of a request and provide the opportunity for 
interested entities to submit comments and supporting evidence in any 
such determination pursuant to the CAFTA-DR Implementation Act. This 
notice

[[Page 13260]]

hereby gives notice to interested parties of the procedures CITA will 
follow in considering such requests.

Background:

    The CAFTA-DR provides a list in Annex 3.25 of the Agreement for 
fabrics, yarns, and fibers that the Parties to the Agreement have 
determined are not available in commercial quantities in a timely 
manner from suppliers in the United States or other CAFTA-DR countries. 
A textile and apparel good containing fabrics, yarns, or fibers that is 
included in Annex 3.25 of the Agreement may be treated as if it is an 
originating good for purposes of the specific rules of origin in Annex 
4.1 of the Agreement, regardless of the actual origin of those inputs, 
provided that all other fabrics, yarns, or fibers of the component that 
determines the classification of the good meet the specific rules of 
origin in Annex 4.1 of the Agreement. The CAFTA-DR Implementation Act 
provides that the President will establish procedures governing the 
submission of requests and may determine whether additional fabrics, 
yarns, or fibers are not available in commercial quantities in a timely 
manner in the United States or the other CAFTA-DR countries. In 
addition, the CAFTA-DR Implementation Act establishes that the 
President may remove a fabric, yarn, or fiber from the list, if it has 
been added to the list in an unrestricted quantity pursuant to section 
203(o), if he determines that the fabric, yarn, or fiber has become 
available in commercial quantities in a timely manner.
    The SAA provides that the President will delegate to CITA his 
authority under section 203(o)(4) of the Agreement (``Commercial 
Availability Provision''), to establish procedures for modifying the 
list of fabrics, yarns, or fibers not available in commercial 
quantities in a timely manner for Agreement countries, as set out in 
Annex 3.25 of the Agreement.
    These procedures are not subject to the requirement to provide 
prior notice and opportunity for public comment, pursuant to 5 U.S.C. 
553(b)(A) (Administrative Procedures Act). These procedures may be 
modified in the future to address concerns that may arise as CITA gains 
experience in implementing them. CITA possesses inherent authority to 
reconsider, and/or subsequently amend, commercial availability 
determinations that may have been procured by error, fraud, or similar 
faults. Should CITA undertake to review a determination under such 
circumstances, CITA will provide notice to the public, through the 
email and website notification processes described in the Final 
Procedures, and provide opportunity for interested entities to submit 
comments and information for CITA's consideration.
Procedures for Considering Requests
1. Introduction
    The intent of the CAFTA-DR Commercial Availability Procedures is to 
foster the use of U.S. and CAFTA-DR products by implementing procedures 
that allow products to be placed on or removed from a product list, on 
a timely basis, and in a manner that is consistent with normal business 
practice. To this end, these procedures are intended to facilitate the 
transmission, on a timely basis, of order requests and offers to supply 
such requests; have the market indicate the availability of the supply 
of products that are the subject of requests; make available promptly, 
to interested entities and parties, information regarding the requests 
for products and offers to supply received; ensure wide participation 
by interested entities and parties; provide careful scrutiny of 
information provided to substantiate order requests and response to 
supply offers; and provide timely public dissemination of information 
used by CITA in making commercial availability determinations.
2. Definitions

(a) Commercial Availability Request. A ``Commercial Availability 
Request'' is a submission from an interested entity requesting that 
CITA place a good on the list in Annex 3.25 because that fiber, yarn, 
or fabric is not available in commercial quantities in a timely manner 
from a supplier in the CAFTA-DR countries.
(b) Interested Entity. An ``interested entity'' means a government that 
is a Party to the Agreement, other than the United States; a potential 
or actual purchaser of a textile or apparel good; or a potential or 
actual supplier of a textile or apparel good. CITA recognizes that a 
legal or other representative may act on behalf of an `interested 
entity.' See section 203(o)(4)(B)(i) of the CAFTA-DR Implementation 
Act.
(c) Interested Party. An ``interested party'' means any interested 
person that requests to be included on the email notification list for 
Commercial Availability proceedings. Any interested person may become 
an interested party by contacting CITA. See Office of Textile and 
Apparel, U.S. Department of Commerce, website for details at https://
web.ita.doc.gov/tacgi/CABroadcast.nsf/Document?Openform or send an 
email to OTEXACAFTA@ita.doc.gov.
(d) Official Receipt. The ``official receipt'' is CITA's email 
confirmation that it has received both the email version and the 
original submission signed by the interested entity delivered via 
express courier.
(e) Request. A ``request'' refers to the Commercial Availability 
Request.
(f) Request to Remove or Restrict. A ``request to remove or restrict'' 
is a submission from an interested entity, made no sooner than six 
months after a product has been added to the Annex 3.25 list in an 
unrestricted quantity pursuant to Section 203(o) of the CAFTA-DR 
Implementation Act, requesting that CITA either remove a product or 
that a quantity restriction be introduced.
(g) Requestor. The ``requestor'' refers to the interested entity that 
files a request, either a Commercial Availability Request or a Request 
to Remove or Restrict, under the CAFTA-DR Commercial Availability 
provision, for CITA's consideration.
(h) CAFTA-DR Supplier. A ``CAFTA-DR supplier'' is a potential or actual 
supplier of a textile or apparel good in the territory of any Party.
(i) Response with an Offer. A ``response with an offer'' is a 
submission from an interested entity to CITA providing its objection to 
the request or asserting its ability to supply the subject product by 
providing an offer to supply the subject product described in the 
request.
(j) Rebuttal Comment. A ``rebuttal comment'' is a submission from an 
interested entity providing information in response to evidence or 
arguments raised in a response with an offer submission. Rebuttal 
comments must be limited to evidence and arguments provided in a 
response with an offer submission.
(k) Fiber, Yarn, or Fabric. The term ``fiber, yarn, or fabric'' means a 
single product or a range of products, which meet the same 
specifications provided in a submission, and which may be only part of 
a Harmonized Tariff Schedule of the United States (``HTSUS'') 
provision.
(l) U.S. Business Day. A ``U.S. business-day'' is any calendar day 
other than a Saturday, Sunday, or a legal holiday. See section 
203(o)(4)(B)(i) of the CAFTA-DR Implementation Act.

3. Submissions for Participation the CAFTA-DR Commercial Availability 
Proceeding.
(a) Filing a Submission.All submissions for a CAFTA-DR Commercial 
Availability proceeding (e.g., Commercial Availability Request, 
Response with an Offer, Rebuttal Comments, and Request to Remove or 
Restrict) must be in English. If any

[[Page 13261]]

attachments are in a language other than English, then a translation 
must be provided. Each submission must be submitted to the U.S. 
Department of Commerce's Office of Textiles and Apparel (``OTEXA'') in 
two forms, electronic mail and original signed submission.
(1) An electronic mail (``email'') version of the submission must be 
either in PDF, Word, or Word-Perfect format and must contain an 
adequate public summary of any business confidential information and 
the due diligence certification, sent to OTEXA--CAFTA@ita.doc.gov. The 
``email'' version of the submission will be posted for public review on 
OTEXA's CAFTA-DR Commercial Availability website at 
http:otexa.ita.doc.gov. No business proprietary information should be 
submitted in the ``email'' version of any document.
(2) The original signed submission must be received via express courier 
to--Chairman, Committee for the Implementation of Textile Agreements, 
Room H3100, U.S. Department of Commerce, 14th and Constitution Ave., 
N.W., Washington, DC 20230. Any business confidential information upon 
which an interested entity wishes to rely must be included in the 
original signed submission only. Except for the inclusion of business 
confidential information, the two versions of a submission should be 
identical.
(3) Brackets must be placed around all business confidential 
information contained in submissions. Documents containing business 
confidential information must have a bolded heading stating 
``Confidential Version.'' Attachments considered business confidential 
information must have a heading stating ``Business Confidential 
Information.'' Documents, including those submitted via ``email,'' 
provided for public release, must have a bolded heading stating 
``Public Version'' and all the business confidential information must 
be deleted and substituted with asterisks.
(4) Generally, details, such as quantities and lead times for providing 
the subject product, can be treated as business confidential 
information. However, the names of suppliers who were contacted, what 
was asked generally about the capability to manufacture the subject 
product, and the responses thereto should be included in public 
versions, which will be made available to the public.
(b) Due Diligence Certification. An interested entity must file a 
certification of due diligence as described in subsection (b)(1) with 
each submission, both email and original signed versions, containing 
factual information. If the interested entity has legal counsel or 
other representative, the legal counsel or other representative must 
file a certification of due diligence as described in subsection (b)(2) 
with each submission, both email and original signed versions, 
containing factual information. Accurate representations of material 
facts submitted to CITA for the CAFTA-DR Commercial Availability 
proceeding are vital to the integrity of this process and are necessary 
for CITA's effective administration of the statutory scheme. Each 
submission containing factual information for CITA's consideration must 
be accompanied by the appropriate certification regarding the accuracy 
of the factual information. Any submission that lacks the applicable 
certifications will be considered an incomplete submission that CITA 
will reject and return to the submitter. CITA may verify any factual 
information submitted by interested entities in a CAFTA-DR Commercial 
Availability proceeding.
(1) For the person responsible for presentation of the factual 
information: I, (name and title), currently employed by (interested 
entity), certify that (1) I have read the attached submission, and (2) 
the information contained in this submission is, to the best of my 
knowledge, complete and accurate.
(2) For the person's legal counsel or other representative:I, (name), 
of (law or other firm), counsel or representative to (interested 
entity), certify that (1) I have read the attached submission, and (2) 
based on the information made available to me by (person), I have no 
reason to believe that this submission contains any material 
misrepresentation or omission of fact.
(c) Official Receipt. A submission will be considered officially 
submitted to CITA only when both the email version and the original 
signed submission have been received by CITA. For request submissions, 
CITA will confirm to the requestor that both versions of the request 
submission were received through an email confirmation. CITA's email 
confirmation shall be considered the ``official receipt'' of the 
request submission, and also begins the statutory 30 U.S. business-day 
process for CITA consideration of requests. CITA will confirm official 
receipt of response and rebuttal submissions by posting the response or 
rebuttal on the dedicated website at https://web.ita.doc.gov/tacgi/
CaftaReqTrack.nsf.
4. Submitting a Request for Consideration in a Commercial Availability 
Proceeding.
(a) Commercial Availability Request. An interested entity may submit a 
Commercial Availability request to CITA alleging that a fiber, yarn, or 
fabric is not available in commercial quantities in a timely manner 
from a producer in the CAFTA-DR countries.
(b) Contents of a Commercial Availability Request.
(1) Detailed Product Information. The Commercial Availability request 
must provide a detailed description of the product subject to the 
request, including, if applicable, fiber content, construction, yarn 
size, and finishing processes; and the classification of the product 
under the HTSUS. All measurements in the entire submission must be 
stated in metric units, or if the English count system is used in any 
part, then a conversion to metric units must be provided.
(2) Quantity. The Commercial Availability request must provide the 
specific quantity of the product needed by the requestor, in standard 
units of quantity for production of the subject product in the CAFTA-DR 
countries.
3) Due Diligence. The Commercial Availability request must provide a 
complete description of the due diligence undertaken by the requestor 
to determine the subject product's availability in the CAFTA-DR 
countries. Due diligence for the requestor means it has made reasonable 
efforts to obtain the subject product from CAFTA-DR suppliers. The 
requestor must provide the names and addresses of suppliers contacted, 
who was specifically contacted, the exact request that was made, the 
dates of those contacts, whether a sample of the subject product was 
provided for review, and the exact response given for the supplier's 
inability to supply the subject product under the same conditions as 
contained in the Commercial Availability request submitted to CITA, in 
addition to any other information the requestor believes is relevant. 
The requestor must submit copies or notes of relevant correspondence, 
both inquiries and responses, with these

[[Page 13262]]

suppliers. Relevant correspondence includes notes of telephone 
conversations. Specific details of correspondence with suppliers, such 
as quantities and lead times for providing the subject product, can be 
treated as business confidential information. However, the names of 
CAFTA-DR suppliers who were contacted, what was asked generally about 
the capability to manufacture the subject product, and the responses 
thereto should be available for public review to ensure proper public 
participation in the process. ``Lead times'' refers to supplying the 
subject product within normal business time frames for the subject 
product once an order is received. Specific delivery dates are not 
necessary. Required delivery dates that fall within the time needed to 
complete the Commercial Availability determination process are not 
acceptable.
(4) Substitutable Products. The Commercial Availability request must 
provide information on whether the requester believes that other 
products supplied by the CAFTA-DR supplier are not substitutable in 
commercial quantities in a timely manner for the product(s) that is 
(are) the subject of the request for purposes of the intended use. 
Clearly describe the unique characteristics of the subject product that 
distinguishes it from other similar or potentially substitutable 
products. Describe why such characteristics are required for the 
purposes of the end-use of the product and cannot be substituted by 
another product available from a CAFTA-DR supplier.
(5) Additional Information. The Commercial Availability request may 
provide any additional evidence or information believed to be relevant 
for CITA to determine whether a fiber, yarn, or fabric is not available 
in commercial quantities in a timely manner from a producer in the 
CAFTA-DR countries.
5. Consideration and Acceptance of a Request.
    In considering whether to accept a request, CITA will consider and 
determine whether it provides all the required information specified in 
sections 3 and 4 of these procedures. CITA will determine whether to 
accept the request for consideration and investigation not later than 
two U.S. business days after the official receipt of a request.
(a) Request Rejected. If CITA determines that the request does not 
contain the required information, the requestor will be notified 
promptly by email that the request has not been accepted and the 
reasons for the rejection. A request may be resubmitted with additional 
information for the subject product and CITA will reevaluate it as a 
new request.
(b) Request Accepted. If CITA determines that the request contains the 
required information, CITA will notify interested parties by email that 
a request has been accepted and filed and will assign a File Number. 
CITA will post the accepted request on its website for public notice. 
The email notification and the website posting will indicate the 
calendar date deadlines for submitting offers to supply and submitting 
rebuttal responses.
6. Submitting a Response with an Offer in a Commercial Availability 
Proceeding.
    Respondents must meet the requirements outlined in 3 of these 
procedures. General comments in support of or opposition to a 
commercial availability request do not meet the requirements of a 
Response with an Offer. A Due Diligence Certification must accompany a 
Response with an Offer.
(a) Response With an Offer Submission. An interested entity may file a 
response submission to a request CITA accepted advising CITA of its 
objection to the request and its ability to supply the subject product 
by providing an offer to supply the subject product as described in the 
request. An interested entity will have 10 U.S. business days after 
official receipt of a request to respond to a request. If good cause is 
shown, CITA may extend this deadline, but CITA will still meet the 
statutory deadline for making a determination.
(b) Contents of a Response with an Offer.
(1) File Number. The Response with an Offer needs to reference the CITA 
File Number assigned to the particular Commercial Availability Request 
being addressed.
(2) Quantity. The Response with an Offer must supply the quantity of 
the requested subject product that the CAFTA-DR supplier, is capable of 
currently supplying, in standard units of quantity. All measurements 
must be in metric units. If the English count system is used in any 
part, then a conversion to metric units must be provided.
(3) Production Capability. The Response with an Offer must report the 
quantity, in metric units, that the CAFTA-DR supplier produced of the 
subject product, or a substitutable product, in the preceding 24-month 
period.
    (i) For products that have experienced cyclical demand or are not 
currently produced, the CAFTA-DR supplier should indicate the quantity 
that has been supplied or offered commercially in the past, with an 
explanation of the reasons it is not currently produced or offered.
    (ii) If the requestor has requested a new style, weight, or other 
variation that is new to the market or new to the respondent, then the 
CAFTA-DR supplier(s) should provide detailed information on its current 
ability to make the subject product.
    (iii) If the CAFTA-DR supplier(s) are making a new product that has 
not yet been offered to the market, but could meet the requirements of 
the subject product, then the CAFTA-DR supplier(s) need(s) to provide 
detailed information regarding the product and their ability to meet a 
request.
    (iv) Substitutable Products. The Response with an Offer may 
provide, if relevant, the basis for the responder's belief that other 
products that are supplied by the CAFTA-DR supplier in commercial 
quantities in a timely manner are substitutable for the product(s) that 
are the subject of the request for purposes of the intended use.
(4) Due Diligence. The Response with an Offer must provide a complete 
description of the due diligence undertaken by the CAFTA-DR supplier to 
substantiate the ability to supply the subject product.
    (i) In the case of new variations of a product, the CAFTA-DR 
supplier must substantiate the ability to manufacture the subject 
product. The CAFTA-DR supplier must provide sufficient detail of the 
manufacturing capabilities of the facility that will supply the subject 
product, in addition to any other information the supplier believes is 
relevant.
    (ii) If some operations, such as finishing, will be completed by 
other entities, the name of the facility and contact information must 
be provided.
(5) Location of the CAFTA-DR supplier. The Response with an Offer must 
provide the name, address, phone number, and email address of a contact 
person at the facility claimed to be able to supply the subject 
product.
7. Submitting Rebuttal Comments.

[[Page 13263]]

    Rebuttal Comments must meet the requirements outlined in 3 of these 
procedures. General comments in support of or opposition to a Request 
or a Response with an Offer do not meet the requirements of a Rebuttal 
Comment. A Due Diligence Certification must accompany a Rebuttal 
Comment.
(a)  Rebuttal Comments. Any interested entity may submit a Rebuttal 
Comment to a Response with an Offer submission. An interested entity 
must submit its Rebuttal Comment not later than 4 U.S. business-days 
after the deadline for Response with an Offer submission. If good cause 
is shown, CITA may extend the time limit, but CITA will still meet the 
statutory deadline for making a determination.
(b) Contents of a Rebuttal Comment. The Rebuttal Comment may respond 
only to evidence or arguments raised in the Response with an Offer 
submission and must identify the Response with an Offer submission, 
evidence and/or arguments to which it is responding. The Rebuttal 
Comment needs to reference the CITA File Number assigned to the 
particular Commercial Availability Request being addressed.
8. Determination Process.
(a) Not later than 30 U.S. business days after official receipt of a 
request (or not later than 44 U.S. business days where an extension is 
provided), CITA will notify interested entities by email and interested 
parties and the public by a posting on its website whether the subject 
product is available in commercial quantities in a timely manner in the 
CAFTA-DR countries and whether an interested entity has objected to the 
request.
(b) CITA will notify the public of the determination by publication in 
the Federal Register when the determination results in a change to the 
Commercial Availability List in Annex 3.25 of the Agreement.
(c) Types of Determinations.
(1) Denial. A denial means that CITA has determined that the subject 
product is available in commercial quantities in a timely manner in the 
CAFTA-DR countries. If a request is denied, notice of the denial will 
be posted on the CAFTA-DR Commercial Availability website at https://
web.ita.doc.gov/tacgi/CABroadcast.nsf/Document?Openform.
(2) Approval in Unrestricted Quantity. An approval in unrestricted 
quantities means that CITA has determined that the subject product is 
not available in commercial quantities in a timely manner in the CAFTA-
DR countries or that no interested entity has objected to the request.
    (i) If a request is approved without restriction, a notice will be 
published in the U.S. Federal Register not later than 30 U.S. business 
days (or not more than 44 U.S. business days where an extension is 
provided ) after the official receipt of a request, adding the subject 
product to the Commercial Availability List in Annex 3.25 of the 
Agreement.
    (ii) The effective date of the determination is the date of 
publication of the notice in the U.S. Federal Register.
(3) Approval in a Restricted Quantity.
    (i) Approval in a Restricted Quantity. An Approval in a Restricted 
Quantity means that CITA has determined to add the subject product to 
the Commercial Availability List in Annex 3.25 of the Agreement with a 
specified restricted quantity. CITA may approve the request in a 
restricted quantity if CITA determines that a CAFTA-DR supplier(s) can 
partially fulfill the request for the subject product. The restricted 
quantity specifies the amount of the subject product that can be 
provided by a CAFTA-DR supplier(s).
    (A) If a request is approved in a restricted quantity, a notice 
will be published in the Federal Register not later than 30 U.S. 
business days (or not more the 44 U.S. business days where an extension 
is provided ) after official receipt of the request, adding the subject 
product to the Commercial Availability List in Annex 3.25 of the 
Agreement with a specified restricted quantity. The restricted quantity 
specifies the amount of the subject product that can be provided by a 
CAFTA-DR supplier(s).
    (B) The effective date of the determination will be the date of 
publication in the U.S. Federal Register.
    (ii) Elimination of a restricted quantity. Not later than six 
months after adding a product to the Commercial Availability List in 
Annex 3.25 of the Agreement in a restricted quantity, CITA may 
eliminate the restriction if it determines that the subject product is 
not available in commercial quantities in a timely manner in the CAFTA-
DR countries.
    (A) The determination that the subject product is not available in 
commercial quantities in a timely manner will be based upon whether the 
restricted quantity has been provided by a CAFTA-DR supplier(s). CITA 
will solicit comments and information from the CAFTA-DR supplier(s) and 
the requester.
    (B) If the CAFTA-DR supplier(s) are still capable of providing the 
restricted quantity, the restriction will remain.
    (C) If the CAFTA-DR supplier(s) are unable to provide the 
restricted quantity, CITA will eliminate the restricted quantity. CITA 
will publish a notice in the U.S. Federal Register, and post on the 
website, that the restricted quantity is eliminated and the subject 
product is added to the Commercial Availability List in Annex 3.25 in 
an unrestricted quantity. The effective date of the determination will 
be the date of publication in the U.S. Federal Register.
(4) Insufficient Information to Determine.CITA will extend its time 
period for consideration of the Commercial Availability Request by an 
additional 14 U.S. business days in the event that CITA determines, not 
later than 30 U.S. business days after official receipt of a Commercial 
Availability Request, that it has insufficient information to make a 
determination regarding the ability of a CAFTA-DR supplier to supply 
the subject products of the Commercial Availability Request based on 
the submitted information. CITA will normally determine that it does 
not have sufficient information to make a determination on a Commercial 
Availability Request when CITA finds there is inconsistency in material 
information contained in the Commercial Availability Request, one or 
more Offers to Supply the subject product, and/or the Rebuttal 
Comments. CITA will notify interested parties via email that it has 
extended the time period for CITA's consideration by 14 U.S. business-
days. CITA also will announce the extension on the website.
    (i) Process during Extension Period. During the extended time 
period, CITA will request that interested entities provide additional 
evidence to substantiate the information provided, and may initiate a 
meeting with interested entities. Should CITA elect to conduct a 
meeting, it will comply with

[[Page 13264]]

requirements to conduct proceedings in an open manner. Such evidence 
may include inter alia product samples, lab tests, detailed 
descriptions of product facilities, and comparisons of product 
performance in the intended end-use of the subject product. Any 
samples, if requested, of fibers, yarns, or fabrics, that are provided 
to CITA will be made available for public inspection at the Office of 
Textiles and Apparel, Room 3110, U.S. Department of Commerce, 14th St. 
and Constitution Ave., N.W., Washington, DC 20230. All written 
submissions must follow instructions described in section 3 of these 
procedures. Samples should be identified with a cover sheet that 
describes the specifications of the sample and be identical to the 
specifications of the request.
    (ii) CITA also will consider evidence in support of claims that 
CAFTA-DR supplier(s) can supply a substantially similar product to that 
specified in the request.
    (iii) CITA will make a determination, not later than 44 U.S. 
business days after the official receipt of a Commercial Availability 
Request whether to Approve, Approve with Restriction, or Deny the 
Commercial Availability Request and will follow the notification 
process accordingly.
(5) Deemed Approval. In the event that CITA does not make a 
determination in response to a Commercial Availability Request to add a 
product to Annex 3.25 of the Agreement within the statutory deadlines 
provided, not later than 45 U.S. business-days after the official 
receipt of the commercial availability request or not later than 60 
U.S. business-days after the official receipt of the Commercial 
Availability Request that was determined to lack sufficient information 
pursuant to subsection (c)(4), the requested subject product shall be 
added to the Commercial Availability List in Annex 3.25 , in an 
unrestricted quantity, in accordance with the requirements of section 
203(o)(4)(D) of the CAFTA-DR Implementation Act. CITA will notify the 
public of the Deemed Approval by publication in the U.S. Federal 
Register and posting on OTEXA's website.
9. Six Month Procedures:
(a) Request to Remove or Restrict. No earlier than six months after a 
product has been added to the Commercial Availability List in Annex 
3.25 in an unrestricted quantity pursuant to sections 203(o)(2) and (4) 
of the CAFTA-DR Implementation Act, an interested entity may submit a 
request to CITA requesting that a product be either removed or that a 
quantity restriction be introduced.
(b) Content of a Request to Remove or Restrict. The Request to Remove 
or Restrict must provide the substantive information set forth in 
subsection 6(b) (Contents of a Response with an Offer) of these 
procedures.
(c) Procedures.
(1) In considering whether to accept a Request to Remove or Restrict, 
CITA will follow procedures set forth in section 5 (Consideration and 
Acceptance of a Request) of these procedures.
(2) If CITA determines to accept the Request to Remove or Restrict, 
CITA and any responding interested entity shall follow applicable 
procedures and contents set forth in subsections 6(a) (Response 
Submission) and section 7 (Submitting Rebuttal Evidence) of these 
procedures.
(3) As set forth in subsections 8(a) and (b) (Determination Process) of 
these procedures, CITA will determine whether the subject product of 
the Request to Remove or Restrict is available in commercial quantities 
in a timely manner in the DR-CAFTA countries not later than 30 U.S. 
business days after the official receipt of the request.
    (i) If CITA determines that the product is available in commercial 
quantities in a timely manner in the DR-CAFTA countries, e.g., that a 
CAFTA-DR supplier is capable to supply the entire subject product 
requested originally, then that product will be removed from the 
Commercial Availability List in Annex 3.25 of the Agreement.
    (ii) If CITA determines that the product is available in restricted 
quantities in a timely manner in the CAFTA-DR countries, e.g., that a 
CAFTA-DR supplier is capable to supply part of the subject product 
requested originally then a restricted quantity will be introduced for 
that product.
    (iii) If the Commercial Availability List changes as a result of 
CITA's determination for the Request to Remove or Restrict, CITA will 
notify interested parties by email of its determination and will 
publish a notice of its determination for the request to remove or 
restrict in the U.S. Federal Register.
    (A) For removal, the notice will state that textile and apparel 
articles containing the subject product are not to be treated as 
originating in a CAFTA-DR country if the subject product is obtained 
from non- CAFTA-DR sources, effective for goods entered into the United 
States on or after six months (i.e., 180 calendar days) after the date 
of publication of the notice.
    (B) For restriction, the notice will specify the restricted 
quantity for the subject product that is to be effective on or after 
six months (i.e., 180 calendar days) after the publication date of the 
notice.

R. Matthew Priest,
Chairman, Committee for the Implementation of Textile Agreements.
[FR Doc. E7-5102 Filed 3-20-07; 8:45 am]
BILLING CODE 3510-DS-S