Interim Procedures for Considering Requests Under the Commercial Availability Provision of the United States - Peru Trade Promotion Agreement Implementation Act and Estimate of Burden for Collection of Information, 41111-41119 [E9-19559]

Agencies

• Committee for the Implementation of Textile Agreements

[Federal Register Volume 74, Number 156 (Friday, August 14, 2009)]
[Notices]
[Pages 41111-41119]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-19559]


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COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS


Interim Procedures for Considering Requests Under the Commercial 
Availability Provision of the United States - Peru Trade Promotion 
Agreement Implementation Act and Estimate of Burden for Collection of 
Information

August 11, 2009.
AGENCY: Committee for the Implementation of Textile Agreements (CITA).

ACTION: Notice and Request for Comments.

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SUMMARY: This notice sets forth the interim procedures the Committee 
for the Implementation of Textile Agreements (``CITA'') will follow in 
implementing certain provisions of the United States - Peru Trade 
Promotion Agreement Implementation Act (``US-PERU TPA''), which 
implemented into U.S. law the United States - Peru Trade Promotion 
Agreement (``Agreement''). Section 203(o)(2) of the US-PERU TPA 
provides that the President shall establish procedures to govern the 
submission of requests to modify the list of fabrics, yarns, or fibers 
not available

[[Page 41112]]

in commercial quantities in a timely manner in either the United States 
or Peru as set out in Annex 3-B of the Agreement. The President has 
delegated to CITA the authority to determine whether fabrics, yarns, or 
fibers are not available in commercial quantities in a timely manner in 
either the United States or Peru 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 US-PERU TPA.

DATES: The interim procedures are effective as of August 14, 2009.
    CITA solicits public written comments on the Interim Procedures. 
Comments must be received no later than September 14, 2009 of this 
notice in either hard copy or electronically. If submitting comments in 
hard copy, an original, signed document must be submitted to the 
Chairman, Committee for the Implementation of Textile Agreements, Room 
3100, U.S. Department of Commerce, 14th Street and Constitution Avenue, 
N.W., Washington, D.C. 20230. If submitting comments electronically, an 
electronic copy, via electronic mail (``email'') must be submitted to 
OTEXA_PERU@ita.doc.gov. Additional instructions regarding the 
submission of comments may be found at the end of this notice.
    In accordance with the Paperwork Reduction Act, this notice further 
provides an estimate of the burden to the public to collect and submit 
information as required by Section 203(o) of the US-PERU TPA and CITA's 
Interim Procedures. CITA hereby gives notice of the estimated burden to 
the public, and provides the opportunity for the public to submit 
comments on those estimates. Written comments and recommendations for 
the estimate of the burden to the public should be sent to Wendy 
Liberante, OMB Desk Officer, via the Internet at Wendy_L._Liberante@omb.eop.gov or fax (202) 395-7285 by September 14, 2009.

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) of the US-PERU TPA and Proclamation 
No. 8341, 74 FR 4105 (Jan. 22, 2009).

Background:

    The US-PERU TPA provides a list in Annex 3-B for fabrics, yarns, 
and fibers that the Parties have determined are not available in 
commercial quantities in a timely manner from producers in the United 
States or Peru. A textile and apparel good containing fabrics, yarns, 
or fibers that are included in Annex 3-B of the US-PERU TPA will be 
treated as if it is an originating good for purposes of the specific 
rules of origin in Annex 4.1 of the US-PERU TPA, regardless of the 
actual origin of those inputs. However, all other fabrics, yarns, or 
fibers of the component that determine the classification of the good 
must satisfy the specific rules of origin in Annex 4.1 of the US-PERU 
TPA. The US-PERU TPA provides that the President will establish 
procedures governing the submission of requests under Section 203(o) 
(``the commercial availability provision'') set forth in the US-PERU 
TPA and may determine whether additional fabrics, yarns, or fibers are 
available or are not available in commercial quantities in a timely 
manner in the United States or Peru. In addition, the US-PERU TPA 
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 
or has had a restriction eliminated, if he determines that the fabric, 
yarn, or fiber has become available in commercial quantities in a 
timely manner.
    In Proclamation No. 8341, 74 FR 4105, 4107 (January 22, 2009), the 
President delegated to CITA his authority under 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, as set out in Annex 3-B of the US-PERU TPA. Set forth 
below are the Interim Procedures implementing the commercial 
availability provisions set forth in the US-PERU TPA.
INTERIM PROCEDURES:
1. Introduction
    The intent of these procedures is to foster the use of U.S. and 
Peruvian products by allowing such 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 
requests for commercial availability determinations 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'' or ``Request'' is a request for a commercial availability 
determination submitted by an interested entity requesting that CITA 
place a good on the Commercial Availability List in Annex 3-B of the 
Agreement because that fiber, yarn, or fabric is not available in 
commercial quantities in a timely manner from a US-PERU TPA supplier.
(b) Commercial Availability List. The Commercial Availability List is 
the list of products (fibers, yarns, and/or fabrics) in Annex 3-B of 
the US-PERU TPA that have been determined to be not commercially 
available from US-PERU TPA suppliers in commercial quantities in a 
timely manner.
(c) Fiber, Yarn, or Fabric. The terms ``fiber, yarn, or fabric'' mean 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.
(d) Interested Entity. An ``interested entity'' means the government of 
Peru, 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 US-PERU TPA.
(e) 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 either by sending an email to 
OTEXA_PERU@ita.doc.gov, or through the website dedicated to commercial 
availability proceedings under the US-PERU TPA (``US-PERU TPA 
commercial availability website'' or ``website''). The website is 
located on the U.S. Department of Commerce's Office of Textile and 
Apparel website, under ``Commercial Availability''/``Peru.''
(f) 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.
(g) Rebuttal Comment. A ``Rebuttal Comment'' (``Rebuttal'') is a 
submission from an interested entity providing information in response 
to evidence or

[[Page 41113]]

arguments raised in a Response. A Rebuttal must be limited to evidence 
and arguments provided in a Response.
(h) 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-B list in an 
unrestricted quantity pursuant to Section 203(o)(4) of the US-PERU TPA, 
requesting that CITA either remove a product or that a quantity 
restriction be introduced.
(i) Requestor. The ``Requestor'' refers to the interested entity that 
files a Request or a Request to Remove or Restrict, under the 
commercial availability provision of the US-PERU TPA, for CITA's 
consideration.
(j) Response with an Offer to Supply. A ``Response with an Offer to 
Supply'' (``Response'') is a submission from an interested entity to 
CITA objecting 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.
(k) U.S. Business Day. A ``U.S. business day'' is any calendar day 
other than a Saturday, Sunday, or a legal holiday observed by the 
Government of the United States. See section 203(o)(4)(B)(ii) of the 
US-PERU TPA.
(l) US-PERU TPA Supplier. A ``US-PERU TPA Supplier'' is a potential or 
actual supplier of a textile or apparel good of a producer. See section 
203(n)(16) of the US-PERU TPA (``The term `producer' means a person who 
engages in the production of a good in the territory of Peru or the 
United States.'').
3. Submissions for Participation in a US-PERU TPA Commercial 
Availability Proceeding.
(a) Filing a Submission. All submissions in a US-PERU TPA 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 complete translation must be 
provided. Each submission must be submitted to the Chairman of CITA, in 
care of 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 (``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_PERU@ita.doc.gov. The 
email version of the submission will be posted for public review on the 
US-PERU TPA commercial availability website. 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 and corresponding public summary, 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 an adequate public summary.
(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 US-PERU TPA 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. 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 also 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 
US-PERU TPA 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 US-PERU TPA 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 Requests, CITA will 
confirm to the requestor that both versions of the Request were 
received through an email confirmation. CITA's email 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 US-PERU TPA commercial 
availability website.
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 US-PERU TPA 
supplier.
(b) Contents of a Commercial Availability Request.
(1) Detailed Product Information. The Request must provide a detailed 
description of the subject product,

[[Page 41114]]

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 the American Society for Testing and Materials (``ASTM'') or 
the American Association of Textile Chemists and Colorists (``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 US-PERU TPA 
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 United States or Peru.
(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 United States or Peru. Due diligence for 
the requestor means it has made reasonable efforts to obtain the 
subject product from US-PERU TPA 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 US-PERU TPA suppliers: Requestors must make 
reasonable efforts to identify US-PERU TPA suppliers in the United 
States or Peru. Requestors should identify US-PERU TPA 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 United States or Peru may not constitute due 
diligence. Rather, reasonable efforts must be taken to identify US-PERU 
TPA suppliers who are generally known to produce the class or type of 
product at issue. Requestors must provide an explanation in their 
Request as to why their efforts to identify US-PERU TPA 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 US-PERU TPA 
suppliers. Third party communications are no substitutes for meaningful 
dialogue between appropriate officials. Once interest is expressed 
between requestors and US-PERU TPA suppliers, subsequent communications 
should be conducted by appropriate officials of the requestor and US-
PERU TPA 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 US-PERU TPA suppliers. The description must include 
reasonable product specifications, including, if applicable, fiber 
content, construction, yarn size, and may include a finishing process 
or operation, 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 US-PERU TPA 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 US-PERU TPA suppliers its 
standard business practice with respect to the provision of samples. 
While requestors may request a sample, a US-PERU TPA supplier is not 
required to provide a sample under CITA's procedures. However, CITA 
notes that US-PERU TPA 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 US-PERU TPA 
suppliers. In its inquiries to US-PERU TPA 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 US-PERU TPA 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

[[Page 41115]]

must be supported by measurable criteria. If, in the course of due 
diligence, a US-PERU TPA supplier proposes a substitutable product, the 
requestor must provide reasonable justifications to the US-PERU TPA 
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 US-PERU TPA 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 US-
PERU TPA 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 
US-PERU TPA 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 United States or 
Peru.
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 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 Responses and Rebuttals.
6. Submitting a Response with an Offer to Supply.
Responses 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.
(a) Response With an Offer to Supply Submission. An interested entity 
(a US-PERU TPA supplier) may file a Response 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 US-PERU TPA 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 US-PERU TPA 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 US-PERU TPA 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 US-PERU TPA 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

[[Page 41116]]

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 US-
PERU TPA supplier's rationale that other products that are supplied by 
the US-PERU TPA 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 
US-PERU TPA 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 US-PERU TPA supplier was not responsive, a US-PERU 
TPA 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 US-PERU TPA supplier to 
substantiate the ability to supply the subject product. If a US-PERU 
TPA 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 US-PERU TPA supplier has been responsive to a requestor in 
the undertaking of due diligence, the US-PERU TPA 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 US-PERU TPA supplier's claim to supply the 
subject product, or one substitutable, in commercial quantities in a 
timely manner.
    (ii) If a US-PERU TPA 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 US-PERU 
TPA 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 US-PERU 
TPA 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 US-PERU TPA 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 US-PERU TPA 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 
US-PERU TPA 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 US-PERU TPA supplier's rationale that 
other products that are supplied by the US-PERU TPA 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 US-PERU TPA 
supplier to provide business confidential or other commercially 
sensitive information to a requestor. However, a US-PERU TPA 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 US-PERU TPA supplier. The Response 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 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. 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 email 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 
United States or Peru 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-B 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 
United States or Peru. If a Request is denied, notice of the denial 
will be posted on the US-PERU TPA Commercial Availability Web site.
    (i) Denial of Requests for Downstream Products with Inputs Not 
Commercially Available: If, during

[[Page 41117]]

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.
    (ii) 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 United 
States or Peru 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-B 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-B of the Agreement with a 
specified restricted quantity. CITA may approve the Request in a 
restricted quantity if CITA determines that a US-PERU TPA 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 US-PERU TPA 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-B of the 
Agreement with a specified restricted quantity. The restricted quantity 
specifies the amount of the subject product that can be provided by a 
US-PERU TPA 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: Elimination of a 
restricted quantity: Not later than six months after adding a product 
to the Commercial Availability List in Annex 3-B 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 United States or Peru. See Section 
203(o)(4)(E) of the US-PERU TPA.
    (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 US-PERU TPA supplier(s). 
CITA will solicit comments and information from the US-PERU TPA 
supplier(s) and the requestor.
    (B) If the US-PERU TPA supplier(s) are still capable of providing 
the restricted quantity, the restriction will remain.
    (C) If the US-PERU TPA 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-B of 
the Agreement 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 US-PERU TPA 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 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 Web site for US-PERU 
TPA commercial availability proceedings.
    (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. 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. If CITA 
conducts a meeting, it will comply with requirements to conduct 
proceedings in an open manner.
    (ii) CITA also will consider evidence in support of claims that US-
PERU TPA 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 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-B 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

[[Page 41118]]

receipt of the Request that was determined to lack sufficient 
information pursuant to Section 8(c)(4) of these Procedures, the 
requested subject product shall be added to the Commercial Availability 
List in Annex 3-B, in an unrestricted quantity, in accordance with the 
requirements of section 203(o)(4)(D) of the US-PERU TPA. 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. Submitting a Request to Remove or Restrict
(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-B 
in an unrestricted quantity pursuant to Section 203(o)(4)(C)(iii) or 
(vi) of the US-PERU TPA, an interested entity may submit a request to 
CITA requesting that a product be either removed or that a quantity 
restriction be introduced. See Section 203(o)(4)(E)(i) of the US-PERU 
TPA.
(b) Content of a Request to Remove or Restrict. The Request to Remove 
or Restrict must provide the substantive information set forth in 
Section 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 from a US-PERU TPA supplier 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 United States or Peru, e.g., that 
a US-PERU TPA 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-B of the Agreement.
    (ii) If CITA determines that the product is available in restricted 
quantities in a timely manner in the United States or Peru, e.g., that 
a US-PERU TPA 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 of determination will state that 
textile and apparel articles containing the subject product are not to 
be treated as originating in either the United States or Peru if the 
subject product is obtained from sources outside the United States or 
Peru, 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. See Section 203(o)(4)(E)(iv) of the US-PERU TPA.
    (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. See Section 203(o)(4)(E)(iv) of the US-PERU TPA.
Request for Comment on the Interim procedures
    Comments on the above Interim Procedures must be received no later 
than September 14, 2009, and in the following format:
    (1) Comments must be in English.
    (2) Comments must be submitted electronically or in hard copy, with 
original signatures.
    (3) Comments submitted electronically, via an electronic mail 
(``email''), must be either in PDF, Word, or Word-Perfect format, and 
sent to the following email address: OTEXA_PERU@ita.doc.gov. The email 
version of the comments must include an original signature. Further, 
the comments must have a bolded heading stating ``Public Version'', and 
no business confidential information may be included. The email version 
of the comments will be posted for public review on the Web site 
dedicated to US-PERU TPA commercial availability proceedings.
    (4) Comments submitted in hard copy must include original 
signatures and must be mailed to the Chairman, Committee for the 
Implementation of Textile Agreements, Room 3100, U.S. Department of 
Commerce, 14th and Constitution Avenue N.W., Washington, D.C. 20230. 
All comments submitted in hard copy will be made available for public 
inspection at the Office of Textile and Apparel, Room 3100, U.S. 
Department of Commerce, 14th and Constitution Avenue N.W., Washington, 
D.C., between the hours of 8:30 a.m. and 5:00 p.m. on business days.
    (5) Any business confidential information upon which an interested 
person wishes to rely may only be included in a hard copy version of 
the comments. Brackets must be placed around all business confidential 
information. Comments 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''. The Committee will 
protect from disclosure any business confidential information that is 
marked ``Business Confidential Information'' to the full extent 
permitted by law.
Classification
Administrative Procedure Act
    These procedures are not subject to the requirement to provide 
prior notice and opportunity for public comment, pursuant to 5 U.S.C. 
553(a)(1) (``Administrative Procedures Act'').
Paperwork Reduction Act
    This document contains collection of information requirements 
subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
information collection has been approved by OMB under Control Number: 
0625-0265.
Estimate of Burden to the Public for Collection of Information and 
Request for Public Comment: In accordance with Section 203(o) of the 
US-PERU TPA and as reflected in the Interim Procedures for commercial 
availability proceedings, CITA must collect certain information about 
the technical specifications of a fabric, yarn, or fiber and the 
production capabilities of Peruvian and U.S. textile producers to 
determine whether certain fabrics, yarns, or fibers are available in

[[Page 41119]]

commercial quantities in a timely manner in the United States or Peru.
CITA submitted to the Office of Management and Budget (``OMB'') for 
Clearance its Interim Procedures requiring the collection of 
information under the emergency provisions of the Paperwork Reduction 
Act of 1995 (``PRA'') (44 U.S.C. Chapter 35). In accordance with the 
PRA, CITA has estimated the ``burden'' (in number of hours) on the 
public to submit information required by CITA under its Interim 
Procedures. In a Federal Register notice published on July 31, 2009, 
(74 FR 38169), CITA solicited public comment on its estimated burden. 
CITA hereby provides the public further opportunity to provide comment 
on its estimates of the burden on the public to submit information to 
CITA under the Interim Procedures.
Estimate of Burden as a Result of Information Collection: Based on 
estimates on the number of Requests, Rebuttals and Responses filed per 
year, and the average amount of time required to submit a Request, 
Rebuttal, and Response, CITA estimates that the total annual burden to 
the public is 89 hours. A further breakdown of its estimates for the 
number of hours to collect and provide information to CITA for 
Requests, Responses and Rebuttals is provided in detail below.
Requests: CITA estimates that 10 Requests will be filed per year under 
the US-PERU TPA commercial availability provision. Based on the 
following activities required to submit a Request, CITA estimates that 
the total time to collect and present information in a Request is 8 
hours, for a total of 80 hours per year.

 
 
 
Activity: Request                      Time Required
 
Due Diligence                          5 hours
Summarizing Due Diligence and          2 hours
 Preparing Request
Preparing Supporting Documentation     1 hour
Total Time per Request                 8 hours
Times 10 Requests per Year             80 hours
 


Responses: CITA estimates that 3 Requests will be filed per year under 
the US-PERU TPA commercial availability provision. Based on the 
following activities required to submit a Request, CITA estimates that 
the total time to collect and present information in a Response is 2 
hours, for a total of 6 hours per year.

 
 
 
Activity: Response                     Time Required
 
Preparing Response                     1 hours and 30 minutes
Preparing Supporting Documentation     30 minutes
Total Time per Response                2 hours
Times 3 Responses per Year             6 hours
 


Rebuttals: CITA estimates that 3 Rebuttals will be filed per year. The 
average amount of time required to prepare each Rebuttal is estimated 
at 1 hour, for a total annual burden for all Rebuttals of 3 hours.

 
 
 
Activity: Rebuttal                     Time Required
 
Preparing Rebuttal                     1 hour
Total Time per Response                1 hour
Times 3 Responses per Year             3 hours
 


    Combined, these three information collections represent an annual 
burden of 89 hours. CITA hereby requests public comment on its 
estimates for the burden to the public to collect and submit 
information in the course of a commercial availability proceeding under 
Section 203(o) of the US-PERU TPA and the Interim Procedures provided 
above. Copies of the above estimate can be obtained by calling or 
writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 
482-0266, Department of Commerce, Room 7845, 14th & Constitution 
Avenue, NW, Washington, DC 20230 or via the Internet at DHynek@doc.gov. 
Written comments and recommendations for the estimate of the burden to 
the public should be sent to Wendy Liberante, OMB Desk Officer, via the 
Internet at Wendy_L._Liberante@omb.eop.gov or fax (202) 395-7285 by 
September 14, 2009.
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the Paperwork 
Reduction Act unless that collection displays a currently valid OMB 
Control Number.

Janet E. Heinzen,
Acting Chairman, Committee for the Implementation of Textile 
Agreements.
[FR Doc. E9-19559 Filed 8-13-09; 8:45 am]
BILLING CODE 3510-DS