Modifications to Procedures for Considering Requests Under the Commercial Availability Provision of the Dominican Republic-Central America-United States Free Trade Agreement, 53200-53206 [E8-21478]

Agencies

• Committee for the Implementation of Textile Agreements

[Federal Register Volume 73, Number 179 (Monday, September 15, 2008)]
[Notices]
[Pages 53200-53206]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21478]


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COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS


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

AGENCY: Committee for the Implementation of Textile Agreements 
(``CITA'').

ACTION: Modifications to the CAFTA-DR Commercial Availability Final 
Procedures; Notice of Modified Procedures.

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SUMMARY: This notice presents the modifications to CITA's Final 
Procedures under the CAFTA-DR Commercial Availability Provisions.

DATES: Effective Date: September 15, 2008.

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

SUPPLEMENTARY INFORMATION: 

    Authority: Section 203(o)(4) of the CAFTA-DR Implementation Act; 
the Statement of Administrative Action (``SAA''), accompanying the 
CAFTA-DR, at 16-20.

Background

    Annex 3.25 of the Dominican Republic-Central America-United States 
Free Trade Agreement (``Agreement'') provides a list of 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, known as the 
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.
    The CAFTA-DR Commercial Availability Final Procedures 
(``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 procedures, 
and provide opportunity for interested entities to submit comments and 
information for CITA's consideration.

CITA's Request for Public Comment on the Due Diligence Requirement 
Under the CAFTA-DR Commercial Availability Procedures

    On December 3, 2007, CITA issued a Federal Register notice 
requesting public comment and proposals on the

[[Page 53201]]

operation of the due diligence requirement under CITA's procedures 
implementing the CAFTA-DR Commercial Availability Provision. See 
Request for Public Comment on the Due Diligence Requirement Under the 
Commercial Availability Procedures of the Dominican Republic-Central 
America-United States Free Trade Agreement (CAFTA-DR), 72 Fed. Reg. 
67916 (December 3, 2007). In its notice, CITA explained that, based on 
its experience in implementing those procedures, it was concerned that 
due diligence efforts have fallen short of those expected when the 
procedures were drafted; that product descriptions may not meet 
recognized standards; that potential suppliers may not be adequately 
substantiating their claims that they are to be able to supply 
requested products; and that CITA is not receiving complete information 
from interested entities regarding meaningful contact between 
requesters and potential suppliers necessary for CITA to make informed 
determinations. CITA requested comment on several areas involved in the 
commercial availability process, including: communications between 
requesters and potential suppliers; identification of potential 
suppliers; content of communications between requesters and potential 
suppliers; substitutability of products; commercial availability of a 
production input vs. downstream product; and potential suppliers' 
responses to requester's inquiry. As a result of its review and 
consideration of submitted comments and proposals, CITA has modified 
its existing procedures.

Modified Final Procedures

1. Introduction

    The intent of the 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 (``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 through the U.S. Department of 
Commerce's Office of Textile and Apparel CAFTA-DR Commercial 
Availability Web site or by sending an e-mail to OTEXA_
CAFTA@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 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 to Supply. A ``Response with an Offer to 
Supply'' (``Response'') is a submission from an interested entity to 
CITA providing its objection to the Request and 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'' (``Rebuttal'') is a 
submission from an interested entity providing information in response 
to evidence or arguments raised in a Response. A Rebuttal must be 
limited to evidence and arguments provided in a Response.
    (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 in the CAFTA-DR Commercial 
Availability Proceeding

    (a) Filing a Submission. All submissions for a CAFTA-DR Commercial 
Availability proceeding (e.g., Request, Response, Rebuttal, and Request 
to Remove or Restrict) must be in English. If any 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 an original signed submission.
    (1) An electronic mail (``e-mail'') 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 
e-mail version of the submission will be posted for public review on 
OTEXA's CAFTA-DR Commercial Availability Web site. No business 
proprietary information should be submitted in the e-mail 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., NW., 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.

[[Page 53202]]

    (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 ``e-mail,'' 
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 CAFTA-DR 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 e-mail 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 e-mail 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 e-mail version and the original 
signed submission have been received by CITA. For Requests, CITA will 
confirm to the requestor that both versions of the Request were 
received through an e-mail confirmation. CITA's e-mail confirmation 
shall be considered the ``official receipt'' of the Request, and also 
begins the statutory 30 U.S. business-day process for CITA 
consideration of Requests. CITA will confirm official receipt of any 
Response and Rebuttal by posting the submissions on the dedicated Web 
site.

4. Submitting a Request for Consideration in a Commercial Availability 
Proceeding

    (a) Commercial Availability Request. An interested entity may 
submit a 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 Request must provide a 
detailed description of the subject product, 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. If the English 
count system is used in any part, then a conversion to metric units 
must be provided. The description must include reasonable product 
specifications, including, if applicable, fiber content, construction, 
yarn size, and finishing processes, as well as timelines and 
quantities. Reasonable product specifications include the use of 
accepted terminology and standards, such as those used by ASTM 
(``American Society for Testing and Materials'') or AATCC (``American 
Association of Textile Chemists and Colorists'').
    If any aspect of the Request is outside the normal course of 
business (e.g., tight deadline, higher standards of performance, 
requirements to match existing specifications), requestors must provide 
CAFTA-DR suppliers with detailed explanations and measurable criteria 
for the specification or term at issue. In the course of its review of 
the Request, CITA will consider record evidence to determine whether 
such specifications and terms are reasonable.
    The requestor must clearly describe the unique characteristics of 
the subject product that distinguishes it from other similar or 
potentially substitutable products. In addition, the requestor must 
also explain why such characteristics are required for the purposes of 
the end-use of the product and cannot be substituted by another 
product. However, all characteristics and specifications must be 
supported by measurable criteria.
    (2) Quantity. The 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 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.
    (i) Generally: The requestor must provide the names and addresses 
of suppliers contacted, who (by name and position) 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 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 suppliers. Relevant correspondence includes notes of telephone 
conversations.
    (ii) Identification of CAFTA-DR suppliers: Requestors must make 
reasonable efforts to identify CAFTA-DR suppliers in the CAFTA-DR 
countries. Requestors should identify CAFTA-DR suppliers through a 
number of means, including the requestor's knowledge of the industry, 
industry directories, and industry association memberships. However, an 
email from a requestor with a general inquiry to all manufacturers in 
the CAFTA-DR countries may not constitute due diligence. Rather, 
reasonable efforts must be taken to identify CAFTA-DR suppliers who are 
generally known to produce the class or type of product at issue. 
Requestors must provide an

[[Page 53203]]

explanation in their Request as to why their efforts to identify CAFTA-
DR suppliers were reasonable given the product at issue.
    (iii) Use of Third Parties and Business-to-Business Contact: Due 
diligence includes substantive and direct contact, indicating a 
legitimate intent to do business, between requestors and CAFTA-DR 
suppliers. Third party communications are no substitutes for meaningful 
dialogue between appropriate officials. Once interest is expressed 
between requestors and CAFTA-DR suppliers, subsequent communications 
should be conducted by appropriate officials of the requestor and 
CAFTA-DR supplier based on normal business practice. A lack of 
appropriate business-to-business contact may be deemed as insufficient 
due diligence.
    (iv) Description of the Subject Product: In undertaking due 
diligence, requestors must provide a detailed description of the 
product to CAFTA-DR suppliers. The description must include reasonable 
product specifications, including, if applicable, fiber content, 
construction, yarn size, and finishing processes, as well as timelines 
and quantities. Reasonable product specifications include the use of 
accepted terminology and standards, such as those used by ASTM or 
AATCC. If any aspect of the Request is outside the normal course of 
business (e.g., tight deadline, higher standards of performance, 
requirements to match existing specifications), requestors must provide 
CAFTA-DR suppliers with detailed explanations and measurable criteria 
for the specification or term at issue that would render such aspects 
as reasonable for the product in question. CITA will consider record 
evidence to determine whether such specifications and terms are 
reasonable.
    (v) Provision of Samples: In undertaking its due diligence, a 
requestor must clearly communicate to CAFTA-DR suppliers its standard 
business practice with respect to the provision of samples. While 
requestors may request a sample, a CAFTA-DR supplier is not required to 
provide a sample under CITA's procedures. However, CITA notes that 
CAFTA-DR suppliers must meet certain requirements with respect to the 
provision of samples and/or information demonstrating their ability to 
supply the subject product in commercial quantities in a timely manner. 
See Section 6(b)(3) and Section 6(b)(4).
    (vi) Substitutability of Products: In undertaking its due 
diligence, a requestor must clearly communicate information regarding 
the substitutability of the product in question to CAFTA-DR suppliers. 
In its inquiries to CAFTA-DR suppliers, the requestor must clearly 
describe the unique characteristics of the subject product that 
distinguishes it from other similar or potentially substitutable 
products. In addition, the requestor must provide CAFTA-DR suppliers 
with information why such characteristics are required for the purposes 
of the end-use of the product and cannot be substituted by another 
product. However, all characteristics and specifications must be 
supported by measurable criteria. If, in the course of due diligence, a 
CAFTA-DR supplier proposes a substitutable product, the requestor must 
provide reasonable justifications to the CAFTA-DR supplier for 
rejecting potentially substitutable products.
    (vii) Treatment of Business Confidential Information: 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 Request must provide information on 
whether the requestor 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 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.
    (1) Requests for Downstream Products with Inputs Not Commercially 
Available. If, in its initial review of a Request, CITA determines that 
a subject product would be commercially available but for the 
commercial unavailability of a certain input of the subject product, 
CITA will reject the Request. The requestor may submit a Request for 
the input in question rather than the downstream product.
    (2) Requests for Products with Prohibited Inputs, Specifications, 
and/or Processes. If, in its initial review of a Request, CITA 
determines that the subject product requires inputs, specifications, 
and/or processes that are prohibited under the laws and regulations of 
the United States, CITA will reject the Request if there is a 
substitute product that does not require such prohibited inputs, 
specifications, or processes.
    (b) Request Accepted. If CITA determines that the Request contains 
the required information, CITA will notify interested parties by e-mail 
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 Responses and Rebuttals.

6. Submitting a Response With an Offer To Supply

    Respondents must meet the requirements outlined in Section 3 of 
these procedures. General comments in support of or opposition to a 
Request do not meet the requirements of a Response. A Due Diligence 
Certification must accompany a Response.

[[Page 53204]]

    (a) Response With an Offer to Supply Submission. An interested 
entity (a CAFTA-DR supplier) may file a 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 to Supply.
    (1) File Number. The Response must reference the CITA File Number 
assigned to the particular Request being addressed.
    (2) Quantity. The Response must supply the quantity of the subject 
product that the respondent 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/Demonstration of Ability to Supply. A 
Response must contain information supporting the claim to supply the 
subject product, or one substitutable, in commercial quantities in a 
timely manner.
    (i) The Response 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.
    (ii) For products that have experienced cyclical demand or are not 
currently produced, the CAFTA-DR supplier must 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.
    (iii) If the subject product involves a new style, weight, or other 
variation that is new to the market or new to the CAFTA-DR supplier, 
then the supplier must provide detailed information on its current 
ability to make the subject product in commercial quantities in a 
timely manner. Such information could include current production 
capacity, current loom availability, and standard timetables to 
produce.
    (iv) A CAFTA-DR supplier may support its claim to be able to 
produce the subject product through provision of a sample meeting 
exactly the specifications as presented in the Request. However, the 
provision of a sample is not required. Regardless of whether a sample 
is provided, a respondent must demonstrate its ability to produce the 
subject product by providing sufficient relevant information regarding 
their production capability. Such information could include past 
production of similar products and/or descriptions of equipment and 
identification of suppliers necessary to produce the subject product. 
If some operations, such as finishing, will be completed by other 
entities, the name of the facility and contact information must be 
provided.
    (v) The Response may provide, if relevant, the basis for the CAFTA-
DR supplier's rationale that other products that are supplied by the 
CAFTA-DR supplier in commercial quantities in a timely manner are 
substitutable for the subject product(s) for purposes of the intended 
use, supported by measurable criteria.
    (vi) In its review of a Response, CITA will consider whether the 
CAFTA-DR supplier was responsive to the efforts employed by the 
requestor to obtain the subject product in the course of due diligence. 
In the event that a CAFTA-DR supplier was not responsive, a CAFTA-DR 
supplier must provide a reasonable explanation in its Response as to 
why it did not respond to earlier inquiries by the requestor in the 
course of due diligence. CITA will reject a Response if it does not 
include such explanation.
    (4) Due Diligence. The Response must provide a complete description 
of the due diligence undertaken by the CAFTA-DR supplier to 
substantiate the ability to supply the subject product. If a CAFTA-DR 
supplier has participated in the requestor's undertaking of due 
diligence, the supplier must provide certain information in response to 
the requestor's inquiries.
    (i) If a CAFTA-DR supplier has been responsive to a requestor in 
the undertaking of due diligence, the CAFTA-DR supplier must have 
stated its ability to supply or not supply the subject product. If the 
product can be supplied, the response to the inquiry must contain 
information supporting the CAFTA-DR supplier's claim to supply the 
subject product, or one substitutable, in commercial quantities in a 
timely manner.
    (ii) If a CAFTA-DR supplier offers to supply the subject product, 
the supplier may support its offer by reporting the quantity, in metric 
units, that it has produced of the subject product, or a substitutable 
product, in the preceding 24-month period. If the CAFTA-DR supplier 
does not provide such information, it must, subject to section 
6(b)(4)(vii), explain why the information it has provided sufficiently 
supports its offer to supply.
    (iii) In response to a requestor's inquiry, for products that have 
experienced cyclical demand or are not currently produced, the CAFTA-DR 
supplier must provide the requestor 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.
    (iv) If the subject product involves a new style, weight, or other 
variation that is new to the market or new to the CAFTA-DR supplier, 
then the supplier must provide detailed information on its current 
ability to make the subject product in commercial quantities in a 
timely manner. Such information could include current production 
capacity, current loom availability, and standard timetables to produce 
the subject product.
    (v) A CAFTA-DR supplier may support its claim to be able to produce 
the subject product through provision of a sample meeting the 
specifications as presented in an inquiry. However, the provision of a 
sample is not required. Regardless of whether a sample is provided, the 
CAFTA-DR supplier must demonstrate its ability to produce the subject 
product by providing sufficient relevant information regarding their 
production capability. Such information could include past production 
of similar products and/or descriptions of equipment and identification 
of suppliers necessary to produce the subject product. If some 
operations, such as finishing, will be completed by other entities, the 
name of the facility and contact information must be provided.
    (vi) A response to a requestor's inquiry must provide, as 
applicable, the basis for the CAFTA-DR supplier's rationale that other 
products that are supplied by the CAFTA-DR supplier in commercial 
quantities in a timely manner are substitutable for the subject product 
for purposes of the intended use, supported by measurable criteria.
    (vii) Nothing in these procedures shall require any CAFTA-DR 
supplier to provide business confidential or other commercially 
sensitive information to a requestor. However, a CAFTA-DR supplier must 
provide the requestor a reasonable explanation why such information was 
not provided and why the information it has provided sufficiently 
supports its offer to supply.
    (5) Location of the CAFTA-DR supplier. The Response must provide 
the name, address, phone number, and e-mail address of a contact person 
at the

[[Page 53205]]

facility claimed to be able to supply the subject product.

7. Submitting a Rebuttal Comment

    A Rebuttal must meet the requirements outlined in Section 3 of 
these procedures. General comments in support of or opposition to a 
Request or a Response do not meet the requirements of a Rebuttal. A Due 
Diligence Certification must accompany a Rebuttal.
    (a) Rebuttal Comment. Any interested entity may submit a Rebuttal 
to a Response. An interested entity must submit its Rebuttal not later 
than 4 U.S. business days after the deadline for Response. 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. The Rebuttal Comment may respond only 
to evidence or arguments raised in the Response and must identify the 
Response, evidence and/or arguments to which it is responding. The 
Rebuttal must reference the CITA File Number assigned to the particular 
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 e-mail and 
interested parties and the public by a posting on its Web site 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 Web site.
    (i) Denial of Requests for Downstream Products with Inputs Not 
Commercially Available: If, during the course of its review of a 
Request, CITA determines that the subject product is commercially 
available but for the commercial unavailability of a certain input of 
the subject product, CITA will deny the Request. The requestor may 
submit a Request for the input in question rather than the downstream 
product.
    (3) Denial of Requests for Products with Prohibited Inputs, 
Specifications, and/or Processes: If, during the course of its review 
of a Request, CITA determines that the subject product requires inputs, 
specifications, and/or processes that are prohibited under the laws and 
regulations of the United States, CITA will deny the Request if there 
is a substitute product that does not require such prohibited inputs, 
specifications, or processes.
    (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.
    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. 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 requestor.
    (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 Web 
site, 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 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 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 Request 
based on the submitted information. CITA will normally determine that 
it does not have sufficient information to make a determination on a 
Request when CITA finds there is inconsistency in material information 
contained in the Request, one or more Responses, and/or the 
Rebuttal(s). CITA will notify interested parties via e-mail 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 Web site.
    (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 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

[[Page 53206]]

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., NW., 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.
    (ii) CITA will make a determination, not later than 44 U.S. 
business days after the official receipt of a Request whether to 
approve, approve with restriction, or deny the 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 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 Request or 
not later than 60 U.S. business-days after the official receipt of the 
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 Web site.

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 to Supply) 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 subsection 6(a) (Response with an 
Offer to Supply) and Section 7 (Submitting a Rebuttal Comment) 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 CAFTA-DR countries not later than 
30 U.S. business days after the official receipt of the Request to 
Remove or Restrict.
    (i) If CITA determines that the product is available in commercial 
quantities in a timely manner in the CAFTA-DR 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 e-mail 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 of determination 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 of determination 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. E8-21478 Filed 9-12-08; 8:45 am]
BILLING CODE 3510-DS-P