Submission and Consideration of Petitions for Duty Suspensions and Reductions, 44687-44693 [2019-18008]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 84, Number 166 (Tuesday, August 27, 2019)]
[Rules and Regulations]
[Pages 44687-44693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18008]


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INTERNATIONAL TRADE COMMISSION

19 CFR Part 220


Submission and Consideration of Petitions for Duty Suspensions 
and Reductions

AGENCY: United States International Trade Commission.

ACTION: Final rule.

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SUMMARY: The United States International Trade Commission (Commission) 
amends its Rules of Practice and Procedure governing the submission and 
consideration of petitions for duty suspensions and reductions under 
the American Manufacturing and Competitiveness Act of 2016. The 
amendments are necessary to clarify certain provisions and to address 
concerns that have arisen in Commission practice.

DATES: Effective September 26, 2019.

FOR FURTHER INFORMATION CONTACT: Lisa R. Barton, Secretary, United 
States International Trade Commission, telephone (202) 205-2000 or 
William Gearhart, Esquire, Office of the General Counsel, United States 
International Trade Commission, telephone (202) 205-3091. Hearing-
impaired individuals may obtain information on this matter by 
contacting the Commission's TDD terminal at 202-205-1810. General 
information concerning the Commission may also be obtained by accessing 
its website at https://www.usitc.gov.

SUPPLEMENTARY INFORMATION: The preamble below is designed to assist 
readers in understanding this final rule. This preamble provides 
background information and a regulatory analysis of the rule.
    These amendments to the rule are being promulgated in accordance 
with the Administrative Procedure Act (5 U.S.C. 553) (APA), and will be 
codified in 19 CFR part 220.

Background

    Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes 
the Commission to adopt such reasonable procedures, rules, and 
regulations as it deems necessary to carry out its functions and 
duties. In addition, section 3(b)(5) of the American Manufacturing 
Competitiveness Act of 2016 (19 U.S.C. 1332 note) (the Act) directs the 
Commission to prescribe and publish, in the Federal Register and on a 
publicly available internet website of the Commission, procedures to be 
complied with by members of the public in submitting petitions for duty

[[Page 44688]]

suspensions and reductions under section 3(b)(1)(A) of the Act.
    This rulemaking effort began when the Commission published a 
document in the Federal Register on December 26, 2018, making final the 
existing interim rule in part 220 of its Rules of Practice and 
Procedure governing the submission and consideration of petitions for 
duty suspensions and reductions under the Act. In that document the 
Commission stated that it might propose several amendments to the final 
rule in the near future in light of experience gained in applying the 
interim rule, with the intent that the amendments be in place before 
October 15, 2019. See document published in the Federal Register on 
December 26, 2018 (83 FR 66102), making final the interim rule 
published in the Federal Register on September 30, 2016 (81 FR 67144).
    The Commission published a notice of proposed amendments to part 
220 and a request for comments in the Federal Register on March 14, 
2019 (84 FR 9273). The amendments modify the text of Sec. Sec.  220.5, 
220.6, 220.7, 220.9, 220.10, and 220.11 of part 220. In addition, these 
amendments re-designate current Sec. Sec.  220.11, 220.12, 220.13, and 
220.14 as Sec. Sec.  220.12, 220.13, 220.14, and 220.15, respectively.
    The changes principally (1) require petitions and comments to 
include certain additional information to assist the Commission in 
evaluating a petition, (2) clarify and provide additional instruction 
with respect to information to be included in a petition and comment, 
and (3) revise the requirement regarding the time when a petition may 
be withdrawn. The changes also divide Sec.  220.11 into two sections, 
Sec. Sec.  220.11 and 220.12, and renumber current Sec. Sec.  220.12 
through 220.14.
    The document invited members of the public to file written comments 
on the proposed amendments no later than 30 days after the day of 
publication of the document, in this case, by April 15, 2019. The 
Commission received written comments from 13 interested parties: The 
American Association of Exporters and Importers (AAEI); the American 
Chemistry Council (ACC); the American Apparel & Footwear Association 
(AAFA); Ann, Inc. (Ann); Element Electronics (Element); W. L. Gore & 
Associates, Inc. (W. L. Gore); Mannington Mills, Inc. (Mannington); the 
Manufacturing Tariff Bill Coalition (MTB Coalition); the National 
Association of Manufacturers (NAM); Newell Brands, Inc. (Newell); 
Outdoor Industry Association (Outdoor); PetSmart, Inc. (Petsmart); and 
Simms Fishing Products, LLC (Simms).
    The Commission carefully considered all comments that it received. 
The Commission provides its response to comments in a section-by-
section analysis provided below. The Commission appreciates the time 
and effort of the commentators in preparing their submissions.
    As required by the Regulatory Flexibility Act, the Commission 
certifies that these amendments will not have a significant impact on 
small business entities.

Procedure for Adopting the Proposed Amendments

    Consistent with its ordinary practice, the Commission is making 
these amendments in accordance with the notice-and-comment rulemaking 
procedure in section 553 of the APA (5 U.S.C. 553). That procedure 
entails the following steps: (1) Publication of a notice of proposed 
rulemaking; (2) solicitation of public comments on the proposed 
amendments; (3) Commission review of public comments on the proposed 
amendments, and (4) publication of final amendments at least 30 days 
prior to their effective date.

Regulatory Analysis of Proposed Amendments to the Commission's Rules.

    The Commission has determined that the proposed amendments to the 
rules do not meet the criteria described in section 3(f) of Executive 
Order 12866 (58 FR 51735, October 4, 1993) and thus do not constitute a 
``significant regulatory action'' for purposes of the Executive Order.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is 
inapplicable to this rulemaking because it is not one for which a 
notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any 
other statute. Although the Commission has chosen to publish a notice 
of proposed rulemaking, the proposed regulations are ``agency rules of 
procedure and practice,'' and thus are exempt from the notice 
requirement imposed by the APA in 5 U.S.C. 553(b).
    The proposed rules do not contain federalism implications 
warranting the preparation of a federalism summary impact statement 
pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).
    No actions are necessary under title II of the Unfunded Mandates 
Reform Act of 1995, Public Law 104-4 (2 U.S.C. 1531-1538) because the 
proposed amendments to the rules will not result in the expenditure by 
state, local, and tribal governments, in the aggregate, or by the 
private sector, of $100,000,000 or more in any one year (adjusted 
annually for inflation), and will not significantly or uniquely affect 
small governments, as defined in 5 U.S.C. 601(5).
    The proposed rules are not ``major rules'' as defined by section 
251 of the Small Business Regulatory Enforcement Fairness Act of 1996 
(5 U.S.C. 801 et seq.). Moreover, they are exempt from the reporting 
requirements of that Act because they contain rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties.
    The Commission previously submitted an information collection 
request for its secure web portal for the Miscellaneous Tariff Bills 
Petition System to the Office of Management and Budget for Paperwork 
Reduction Act clearance. See 81 FR 58531 (Aug. 25, 2016). The 
Commission received the appropriate clearance. However, this clearance 
expires on September 30, 2019, and the Commission is seeking a new 
clearance. The Commission intends to process the information it 
collects consistent with these rules as amended, and the Commission 
intends to obtain the appropriate clearance required by the Paperwork 
Reduction Act before it begins its next information collection on 
October 15, 2019.

Overview of the Amendments to the Regulations

    The final regulations contain 3 (three) changes from those proposed 
in the notice of proposed rulemaking (NPRM). These changes are 
summarized here.
    First, with regard to Sec.  220.6(a)(4), the Commission has 
determined to retain, rather than delete, the wording in the current 
rule that requires the article description to be ``sufficiently clear 
as to be administrable by CBP.'' The Commission has determined not to 
adopt the proposed substitute wording.
    Second, with regard to Sec.  220.7(b)(2), the Commission has 
determined to retain, rather than delete, the word ``generally''.
    Third, with regard to Sec.  220.11(c)(4), the Commission has 
determined to revise the rule to read ``a statement as to whether such 
product is generally available for sale, and if not, an explanation of 
its lack of availability for sale''.

Section-by-Section Explanation of the Amendments, Comments Received, 
and Commission Response

Part 220--Process for Consideration of Petitions for Duty Suspensions 
and Reductions

Section 220.5
    Section 220.5 lists the types of information that must be set forth 
in a

[[Page 44689]]

petition. The proposed amendment would modify Sec.  220.5 in five 
respects. First, it amends Sec.  220.5(e)(1) to clarify that the U.S. 
Customs and Border Protection (CBP) ruling requested should be one that 
indicates CBP's classification of the article. Second, it divides Sec.  
220.5(h) into two parts. New paragraph (h)(1) requires petitions to 
include an estimate of both total value and, in addition, dutiable 
value in U.S. dollars for the next 5 calendar years, and new paragraph 
(h)(2) requires petitions to include an estimate of the share of total 
imports represented by the petitioner's imports of the subject article. 
Third, the amendment modifies Sec.  220.5(j) to require that the 
petition include ``[t]he names of any domestic producers of the 
article, if available.'' Fourth, it adds a new paragraph (n) that 
requires the petition to include a certification that the information 
supplied in the petition is complete and correct to the best of the 
petitioner's knowledge and belief and that the petitioner understands 
that the information submitted is subject to audit and verification by 
the Commission. Fifth, it re-designates existing paragraph (n) as 
paragraph (o).
Comments
    AAEI expressed concern that the amendment to paragraph (h) that 
requires petitioners to provide estimated total value and dutiable 
value data in U.S. dollars appears to apply to the specific petitioner, 
without allowing the petitioner to redact confidential information or 
provide it in an alternative form, such as in quantified or percentage 
values. AAEI also expressed concern that the new certification 
requirement in paragraph (n) would open petitioners to a ``quick 
response audit.''
    The ACC expressed similar concerns about the possible disclosure of 
data relating to an estimate of the share of total imports. It 
expressed concern that the change, in the absence of a Commission 
process for considering whether it needs the information for its 
review, would discourage companies from filing petitions. It 
recommended that the Commission provide a discrete confidential 
business information process if the Commission decides such information 
is necessary for its review of a petition.
    The MTB Coalition did not propose any changes to the proposed 
amendments to Sec.  220.5. It also did not oppose the new requirements. 
However, the MTB Coalition asked that the Commission be ``lenient'' 
when auditing estimates. The MTB Coalition said that petitioners may 
have only limited knowledge about imports by other importers, 
particularly when the imported article does not directly correspond to 
an 8- or 10-digit HTS number. The MTB Coalition also stated that a 
petitioner may not know the names of domestic producers of the article. 
If a company does list a domestic producer, the MTB Coalition expressed 
concern that a petition may be ``automatically denied.''
    NAM asked that the Commission treat estimates submitted by 
petitioners of their total share of imports as confidential business 
information when petitioners so request.
Commission Response
    The Commission is adopting as a final rule the amendments to Sec.  
220.5. The Commission considered AAEI's concern about requiring that a 
petition include an estimate of dutiable value data. The Commission 
notes that it required petitioners to submit such data as part of their 
2016 petitions, and thus this change simply incorporates prior 
Commission practice. The Commission did not encounter difficulties or 
concerns in collecting such data in 2016. The Commission is aware that 
disclosure of dutiable value data could help a competitor, in some 
instances and with the help of other data, gain insight into the 
dutiable value data reported by a petitioner. When a petitioner has 
reason to believe this may occur, the petitioner may request 
confidential treatment for the information it considers to qualify for 
such treatment.
    The Commission considered the concerns expressed by ACC and NAM 
about possible disclosure of a petitioner's data relating to an 
estimate of the share of total imports. As in the preceding paragraph, 
the Commission notes that a petitioner may seek confidential treatment 
for business information that it believes qualifies for such treatment. 
However, the Commission also notes that sections 3(b)(C) and (D) of the 
Act, which set out the content requirements for the Commission's 
preliminary and final reports to the Committees, require the Commission 
to provide an estimate of the amount of revenue loss to the United 
States if a duty suspension or reduction takes effect. For this and 
certain other information the Commission requires be included in a 
petition, the Commission has notified petitioners, in accordance with 
the confidential treatment provision in section 332(g) of the Tariff 
Act of 1930, that certain specific information provided may be 
disclosed in the reports it sends to the Committees.
    The Commission appreciates the concerns expressed by the MTB 
Coalition. The Commission notes it has already prefaced several of the 
petitioning requirements at issue in current Sec.  220.5 with the term 
``if available.'' The Commission also notes that it permits petitioners 
to provide additional explanation regarding any domestic production and 
considers all available information obtained with respect to each 
petition in preparing its final report and recommendation.
Section 220.6
    Section 220.6 describes the information that should be included in 
the description of the article for which a duty suspension or reduction 
is being sought. The amendment would delete wording in Sec.  
220.6(a)(4) that requires that the description be ``sufficiently clear 
as to be administrable by CBP.'' The Commission would substitute more 
specific wording that requires the petition (1) to describe the article 
based on the existing Harmonized Tariff Schedule (HTS) category's 
description (at the 8- or 10-digit level) in HTS chapters 1 through 97, 
or (2) to delineate an article representing a subset of the coverage of 
the applicable HTS category using terminology already included in the 
HTS or interpreted in pertinent CBP rulings.
Comments
    ACC opposed the change and said that the current ``administrable'' 
wording ``strikes the right balance.'' ACC indicated that the proposed 
wording would introduce ``unnecessary complexities,'' make the rules 
``too stringent,'' and might discourage the filing of petitions.
    Element opposed deletion of the wording ``sufficiently clear as to 
be administrable by CBP'' in the current rule and replacement with 
wording that would require a petitioner to describe the imported 
article in terms of existing 8-digit HTS subheadings or 10-digit HTS 
statistical reporting numbers. Element cited four reasons: (1) The 
terminology in the HTS is frequently out of date; (2) existing 8-digit 
and 10-digit HTS numbers often cover a range of products, and more 
detailed descriptions may be necessary to address potential concerns of 
or objections from producers of other similar products that fall within 
that tariff line; (3) ``other'' categories offer little in the way of 
description that could be used to narrow the scope of an MTB; and (4), 
even where HTS subheadings are further broken down into statistical 
reporting numbers that describe an article with some

[[Page 44690]]

specificity, such descriptions may still be too broad and require 
further narrowing. Element urged the Commission to amend the proposed 
rule change to make clear that petitioners should draft article 
descriptions using the existing terminology of the HTS, and allow 
petitioners to rely on examples of terminology found ``anywhere'' 
within the HTS.
    The MTB Coalition expressed the view that this change will be 
helpful in the drafting of article descriptions and expressed the hope 
it will lead to fewer CBP objections over administrability issues.
    NAM urged that the Commission continue to use the ``sufficiently 
clear'' wording in the current rule. NAM expressed the view that the 
proposed substitute wording ``is far too narrow and not required by the 
statutes.''
Commission Response
    After considering the comments submitted, the Commission has 
decided to withdraw this proposed change. The Commission did not 
encounter difficulties during the first round of petitions with the 
current wording. It proposed the revised wording in the expectation it 
would provide greater clarity and help petitioners in preparing their 
petitions.
Section 220.7
    Section 220.7 describes what constitutes a properly filed petition 
and describes how the Commission will treat identical and overlapping 
petitions filed by the same petitioner. The Commission proposes to make 
two changes to this section. First, it proposes to expand the title of 
the rule section to indicate that the rule also applies to identical 
and overlapping petitions filed by the same petitioner. Second, it 
proposes to amend Sec.  220.7(b)(2) to delete the word ``generally.'' 
Section 220.7(b)(2) currently states that when a petitioner has filed 
one or more identical or overlapping petitions, the Commission will 
``generally'' consider the earliest filed pending petition to be the 
petition of record, leaving open the possibility that the Commission 
might consider a different petition for another reason. In the few 
instances in which the Commission received a petition that fell into 
this category during the 2016 filing period, the Commission considered 
the earliest filed petition to be the petition of record. This change 
removes any uncertainty.
Comments
    ACC requested that the Commission retain the term ``generally'' in 
order to retain the flexibility to permit petitioners to correct 
improperly filed or overlapping petitions.
    AAFA said that the changes regarding overlapping petitions would 
make the current situation worse. It urged the Commission to provide 
petitioners with the opportunity to explain how multiple petitions 
might not be overlapping. It also asserted that the Commission, during 
the 2017 petition cycle, had applied the rule too narrowly and had 
rejected petitions that met the statutory requirements.
    NAM expressed the view that the proposed revisions regarding 
overlapping petitions filed by the same petitioner fail to address the 
concern raised by manufacturers during the 2016-2017 cycle that 
resulted in the rejection of petitions. NAM asserted that the 
Commission applied an overly narrow construction of its own rules in 
rejecting petitions, and it urged the Commission to revise Sec.  220.7 
``to establish an opportunity or procedure for petitioners to explain 
how multiple petitions submitted by the same petitioner may not, in 
fact, be overlapping petitions.''
Commission Response
    The Commission is adopting the first of the two proposed changes to 
this section, the change in the title of the section. However, in 
consideration of comments favoring retention of the term ``generally,'' 
the Commission is withdrawing that proposed change.
Section 220.9
    Section 220.9 addresses withdrawal of petitions, submission of new 
petitions, and amendments to petitions. The Commission proposes to 
amend Sec.  220.9(a), which currently states that a petitioner may 
withdraw a petition at any time prior to the time the Commission 
transmits its final report to Congress. The Commission proposes to 
revise this paragraph to state that a petitioner may withdraw a 
petition ``no later than 30 days after the Commission submits its 
preliminary report.''
Comments
    The MTB Coalition expressed the view that this change will help the 
consideration process to be more efficient.
Commission Response
    In the absence of any adverse comments, the Commission is adopting 
as a final rule the amendments to Sec.  220.9.
Section 220.10
    Current Sec.  220.10 addresses Commission publication and public 
availability of petitions and opportunity for the public to comment on 
such petitions. The Commission proposes to divide Sec.  220.10 into two 
separate sections, with Sec.  220.10 retitled ``Commission publication 
and public availability of petitions,'' and new Sec.  220.11 titled 
``Public comment period.'' Revised Sec.  220.10 tracks the text of 
current Sec.  220.10(a). The Commission proposes to delete the title of 
paragraph (a) of current Sec.  220.10 and incorporate it into the new 
title of Sec.  220.10.
Comments
    The Commission did not receive any comments.
Commission Response
    The Commission is adopting as a final rule the amendments to Sec.  
220.10.
Section 220.11
    New Sec.  220.11, titled as ``Public comment period,'' contains 
four paragraphs. New paragraph (a), ``Time for filing,'' largely tracks 
the wording in current Sec.  220.10(b). New paragraph (b) includes a 
list of information items that must be included in a comment, including 
certain information about the commenter; a statement about whether the 
comment supports, opposes, or takes no position on the petition; and a 
certification statement. It also refers commenters to the Commission's 
Handbook on MTB Filing Procedures for further information. New 
paragraph (c) sets out a list of requirements that apply to comments 
from domestic producers. Comments must include: (1) A description of 
the product alleged to be identical, like, or directly competitive with 
the product that is the subject of the petition; (2) the Chemical 
Abstracts Services registry number (if any); (3) certain information 
about production or likely production of an identical, like, or 
directly competitive article within the United States; (4) a statement 
as to whether such product is commercially available and, if not 
commercially available, an explanation of its lack of availability; (5) 
addresses for the locations of U.S. production facilities; and (6) 
evidence demonstrating the existence of domestic production and citing 
possible examples. Paragraph (d) states that the Commission may provide 
additional opportunity for public comment and, if it does so, will 
publish notice of that opportunity in the Federal Register.
Comments
    AAEI expressed support for the requirement that persons filing 
comments indicate whether they support, oppose, or take no position on

[[Page 44691]]

the petition. It also expressed concern that the required submission of 
additional information without the opportunity to redact may require 
persons filing comments to disclose confidential business information.
    AAFA expressed support for the inclusion of new paragraph (d) and, 
in addition, asked that the Commission establish a specific public 
comment period for the report of the U.S. Department of Commerce 
relating to whether there is domestic production of a like or directly 
competitive article and whether a domestic producer objects. AAFA 
expressed the view that the Commission rejected petitions during the 
prior cycle based on insufficient confidential opposition.
    Ann asked that the Commission amend proposed Sec.  220.11(c)(1) to 
require that domestic producers include more detailed information about 
the domestic article. Ann asked that the Commission require producers 
to include the HTS code for the article and, if the producer exports 
the article, the Schedule B code, and to include information regarding 
the intrinsic characteristics of the article, including materials from 
which made, appearance, size and weight, quality, texture, and use. Ann 
asked that the Commission modify proposed Sec.  220.11(c)(3) and (5) to 
include additional questions about the process at domestic facilities 
and for evidence of machinery and production capacity. With regard to 
Sec.  220.11(c)(4), Ann expressed concern that the term ``commercially 
available'' was undefined and asked that the Commission require 
domestic producers to provide additional details, including quantity 
produced, the names of purchasers and how the article is distributed, 
and the retail price.
    W.L. Gore, Outdoor, and PetSmart asked the Commission to make 
revisions to proposed Sec.  220.11(c) that are similar in scope to 
those requested by Ann.
    The MTB Coalition expressed the view that the new requirements will 
add more transparency to the process and encouraged the U.S. Department 
of Commerce to adopt a similar mechanism to increase transparency 
across all agencies reviewing petitions. With respect to new Sec.  
220.11(d), the MTB Coalition stated that it found the additional 
comment period to be helpful in the 2017 petition cycle, and it 
recommended incorporating the proposed change and opening it to 
comments on petitions falling in categories III, IV, V, and VI.
    NAM similarly expressed support for an additional public comment 
period. It also asked that a public comment period be established 
following the publication of the Commission's preliminary report, and 
that the public be permitted to comment during that period on petitions 
the Commission does not recommend for inclusion (Category VI 
petitions), including petitions opposed by the U.S. Department of 
Commerce. NAM also asked that the public also be able to comment on 
petitions that the Commission has determined do not contain required 
information or for which the Commission determined that the petition is 
not a likely beneficiary (Category V petitions).
    Newell Brands asked the Commission to make revisions to proposed 
Sec.  220.11(c) that are similar to those requested by Ann, W.L. Gore, 
Outdoor, and PetSmart. Newell also asked that the Commission eliminate, 
to the extent possible, the subjective analysis conducted by the 
Commission and Commerce for the evaluation of domestic availability and 
production of an identical, like or directly competitive product. 
Newell stated that the term ``domestic production'' is ambiguous, and 
that a good produced in a country with which the United States has a 
free trade agreement and which enters the United States duty-free 
should not be considered ``domestic production.'' Newell also said that 
repackaging and making minor modifications in the United States that 
result in a change in classification should not qualify as domestic 
production for purposes of the Act.
Commission Response
    After taking into consideration the comments received, the 
Commission is adopting as a final rule the amendments to Sec.  220.11, 
with one exception: The Commission has redrafted Sec.  220.11(c)(4). In 
the Commission's view, the amendments strike the right balance. First, 
they take into account the need to provide additional opportunity for 
public comment and at the same time allow the Commission to prepare and 
transmit its preliminary and final reports in the time allowed under 
the statute. Second, they help to address the need for some additional 
information from domestic producers without placing an undue additional 
burden on interested parties that are not petitioners or, in most 
cases, beneficiaries of duty suspensions and reductions sought.
    With regard to AAEI's concern about the opportunity to redact 
confidential business information in its written comments, the 
Commission notes that interested parties may seek confidential 
treatment of business information submitted in response to Sec.  
220.11(c)(6).
    To address Ann's concern regarding use of the term ``commercially 
available,'' the Commission has redrafted Sec.  220.11(c)(4) to read 
``a statement as to whether such product is generally available for 
sale and, if not, an explanation of its lack of availability for 
sale.'' The Commission is seeking this and other relevant information 
in determining whether there is domestic production of a product.
    The Commission also considered the comments submitted by the MTB 
Coalition and NAM in support of an additional public comment period and 
in support of providing opportunity to consider petitions that fall in 
other categories. The rules, as amended, allow for the possibility of 
an additional comment period. Should the Commission choose to provide 
an additional comment period, it will publish a notice in the Federal 
Register that sets out specific details and instructions.
    The Commission also considered Newell's view that the term 
``domestic production'' is ``ambiguous'' and Newell's view that the 
term might include goods produced in a free-trade-agreement partner or 
goods that are merely repackaged or slightly modified. In response, the 
Commission notes that the term ``domestic production'' is defined in 
both the statute (in section 7(5) of the Act) and Commission Sec.  
220.2(h) to mean the domestic production of an article that is 
identical to, or like or directly competitive with, an article to which 
a petition for a duty suspension or reduction would apply, for which a 
domestic producer has demonstrated production, or imminent production, 
in the United States. The Commission also defined the terms 
``identical,'' ``like'' and ``directly competitive'' in Sec.  220.2(h), 
and for the terms ``like'' and ``directly competitive'' used 
definitions in the legislative history of the Trade Act of 1974. The 
decision as to whether a good is an import or a domestically produced 
good ultimately depends on the facts, and the Commission considers all 
available information obtained with respect to each petition in 
preparing its final report and recommendation.
Section 220.12
    The Commission proposes to re-designate current Sec.  220.11 as 
Sec.  220.12. The section describes the contents of the Commission's 
preliminary report to the Committees. The Commission proposes only one 
change: It would delete the parenthetical in paragraph (b)(2) that 
relates to corrections of article descriptions.

[[Page 44692]]

Comments
    Ann proposed that the Commission amend renumbered Sec.  
220.12(a)(3) to require that the Commission take into account the joint 
report of the Secretary of Commerce and Customs and Border Protection. 
If the report provides no suggested changes and the description is 
found not administrable, Ann asked that petitioners be given an 
opportunity to work with CBP to make technical changes to the article 
description.
    W.L. Gore, Newell, Outdoor, PetSmart, and Simms, asked the 
Commission to make revisions to proposed Sec.  220.12(a)(3) that are 
similar in scope to those requested by Ann.
Commission Response
    In the absence of comments to the contrary, the Commission will 
delete the parenthetical in paragraph (b)(2) as proposed in its notice 
of proposed rulemaking. With regard to the modifications to Sec.  
220.12(a)(3) proposed by several interested parties, the Commission 
notes that it did not propose or provide notice to the public of such 
modifications. Accordingly, the Commission will not include the 
requested amendment. Moreover, the degree to which CBP chooses to work 
with petitioners is a matter for CBP to decide; the Commission has no 
authority to direct CBP to work with individual petitioners.
Sections 220.13, 220.14, 220.15
    The Commission is re-designating current Sec. Sec.  220.12, 220.13, 
and 220.14 as Sec. Sec.  220.13, 220.14, and 220.15, respectively, to 
reflect the division of Sec.  220.10 into two sections. The Commission 
received no comments on this renumbering. The Commission is not making 
any other changes to these sections, and is adopting the new numbering 
as proposed.
Additional Matters Raised in Comments
    Several persons submitting comments addressed matters that go 
beyond the proposed changes to part 220 and the Commission's notice of 
proposed rulemaking. For example, Mannington Mills, Inc., of Salem 
N.J., raised the matter of an earlier effort to persuade the Commission 
to include a limited number of reliquidations in its 2017 MTB report to 
the Committees. Mannington asserts that the Commission decided against 
this ``based on incorrect and, in our opinion, false, information 
provided to it by Customs.'' Mannington asked that this issue be 
remedied and addressed in the Commission's new rules.
    NAM expressed concern that the Commission's proposed revisions do 
not address other issues raised by petitioners during the 2016-2017 
cycle. NAM cited two examples: (1) ``unsubstantiated opposition'' to 
the petition, such as opposition from companies that do not produce 
articles classified in the same HTS heading as those produced by the 
petitioner, or general information on production of overly broad 
categories without evidence that domestic producers meet the technical 
requirements needed by petitioning companies; and (2) the inability of 
stakeholders to engage directly with U.S. Customs and Border Protection 
(CBP). The Association did not propose any specific amendments to the 
rules to address its concerns. The AAFA made similar points.
    Newell, Outdoor, and Simms proposed two modifications to Sec.  
220.14(b). The first would amend Sec.  220.14 by adding a new paragraph 
(b)(3) to require that the identity of domestic producers opposing 
petitions through the U.S. Department of Commerce process be provided 
to petitioners before the Commission makes its final conclusions and 
publishes its final report. The second would amend Sec.  220.14 to add 
a new paragraph (b)(4) to require that domestic producers who express 
opposition towards any petitions after publication of the final 
Commission report, and who did not participate in the public comment 
process, must provide all information required by Sec.  220.11(c) and 
be evaluated by the Commission and Commerce in order to be considered.
Commission Response
    The matter raised by Mannington goes beyond the scope of the 
Commission's notice of proposed rulemaking and beyond the Commission's 
authority under the statute. With regard to the comments of NAM, there 
is no requirement that a domestic article fall within the same HTS 
product description as an imported article in order to be like or 
directly competitive with the imported article. The purpose of the HTS 
subheadings is to classify articles for duty collection and statistical 
purposes as consistently as possible, not for determining whether 
domestic and imported articles are like or directly competitive with 
each other. However, as noted above, in its amendments to Sec.  220.11, 
the Commission is requiring domestic producers to provide additional 
information in their comments, especially when such producers raise an 
objection to any petition. With regard to the ability of stakeholders 
to engage directly with CBP, that is a matter for CBP, not the 
Commission.
    The proposals by Newell, Outdoor, and Simms to modify Sec.  
220.14(b) are not appropriate at this time. First, the Commission did 
not provide notice to the public that it is considering modifying this 
rule at this time. Second, the Commission has no authority to require 
the U.S. Department of Commerce to share information, including 
confidential business information, with petitioners or any other 
interested parties in this proceeding. Commerce determines how it will 
carry out its responsibilities under the statute and obtain the 
information required by law.

List of Subjects in 19 CFR Part 220

    Administrative practice and procedure, Miscellaneous tariff bills.

    For the reasons stated in the preamble, the United States 
International Trade Commission amends 19 CFR part 220 as follows:

PART 220--PROCESS FOR CONSIDERATION OF PETITIONS FOR DUTY 
SUSPENSIONS AND REDUCTIONS

0
1. The authority citation for part 220 continues to read as follows:

    Authority: 19 U.S.C. 1335; Pub. L. 114-159, 130 Stat. 396 (19 
U.S.C. 1332 note).


0
2. Amend Sec.  220.5 by revising paragraphs (e), (h), and (j), 
redesignating paragraph (n) as paragraph (o), and adding a new 
paragraph (n) to read as follows:


Sec.  220.5  Contents of petition.

* * * * *
    (e) To the extent available--
    (1) A classification ruling of U.S. Customs and Border Protection 
(CBP) that indicates CBP's classification of the article; and
    (2) A copy of other CBP documentation indicating where the article 
is classified in the HTS.
* * * * *
    (h) For each HTS number included in the article description:
    (1) An estimate of the total and dutiable value (in United States 
dollars) of imports of the article covered by the petition for the 
calendar year preceding the year in which the petition is filed, for 
the calendar year in which the petition is filed, and for each of the 5 
calendar years after the calendar year in which the petition is filed, 
including an estimate of the value of such imports by the person who 
submits the petition and by any other importers, if available.
    (2) An estimate of the share of total imports represented by the 
petitioner's

[[Page 44693]]

imports of the article that is the subject of the petition.
* * * * *
    (j) The names of any domestic producers of the article, if 
available.
* * * * *
    (n) A certification from the petitioner that the information 
supplied is complete and correct to the best of the petitioner's 
knowledge and belief, and an acknowledgement from the petitioner that 
the information submitted is subject to audit and verification by the 
Commission.
* * * * *

0
3. Amend Sec.  220.7 by revising the section heading to read as 
follows:


Sec.  220.7  Properly filed petition; identical and overlapping 
petitions from same petitioner.

* * * * *

0
4. Amend Sec.  220.9 by revising paragraph (a) to read as follows:


Sec.  220.9  Withdrawal of petitions, amendments to petitions.

    (a) Withdrawal of petitions. A petitioner may withdraw a petition 
for duty suspension or reduction filed under this part no later than 30 
days after the Commission submits its preliminary report, as described 
in Sec.  220.12. It shall do so by notifying the Commission through the 
Commission's designated secure web portal of its withdrawal and the 
notification shall include the name of the petitioner, the Commission 
identification number for the petition, and the HTS number for the 
article concerned.
* * * * *

0
5. Revise Sec.  220.10 to read as follows:


Sec.  220.10  Commission publication and public availability of 
petitions.

    Not later than 30 days after expiration of the 60-day period for 
filing petitions for duty suspensions and reductions, the Commission 
will publish on its website the petitions for duty suspensions and 
reductions submitted under Sec.  220.3 that were timely filed and 
contain the information required under Sec.  220.5. When circumstances 
allow, the Commission may post such petitions on its website earlier 
than 30 days after expiration of the 60-day period for filing 
petitions.


Sec.  Sec.  220.11 through 220.14  [Redesignated as Sec. Sec.  220.12 
through 220.15]

0
6. Redesignate Sec. Sec.  220.11 through 220.14 as Sec. Sec.  220.12 
through 220.15.

0
7. Add a new Sec.  220.11 to read as follows:


Sec.  220.11  Public comment period.

    (a) Time for filing. Not later than 30 days after expiration of the 
60-day period for filing petitions, the Commission will also publish in 
the Federal Register and on its website a notice requesting members of 
the public to submit comments on the petitions for duty suspensions and 
reductions. To be considered, such comments must be filed through the 
Commission's secure web portal during the 45-day period following 
publication of the Commission's notice requesting comments from members 
of the public. For purposes of this section, all petitions posted by 
the Commission on its website, whether or not posted early, shall be 
deemed to be officially published by the Commission on its website on 
the date of publication of the notice seeking written comments from 
members of the public on the petitions.
    (b) In general. The comment shall include the following 
information:
    (1) The name, telephone number, and postal and email address of the 
commenter, and if appropriate, its representative in the matter;
    (2) A statement as to whether the commenter is a U.S. producer, 
importer, government entity, trade association or group, or other;
    (3) A statement as to whether the comment supports the petition; 
objects to the petition; or takes no position with respect to the 
petitions/provides other comment;
    (4) If the commenter is an importer, a list of the leading source 
countries of the product;
    (5) A certification from the commenter that the information 
supplied is complete and correct to the best of the commenter's 
knowledge and belief, and an acknowledgement from the commenter that 
the information submitted is subject to audit and verification by the 
Commission; and
    (6) Comment formats may be constrained in size, length, 
attachments, file type, etc., by system limitations in the Commission's 
secure web portal. See the Commission's Handbook on MTB Filing 
Procedures as posted on the Commission's website for further 
information.
    (c) Comments from domestic producers. Comments from a firm claiming 
to be a domestic producer, as defined in Sec.  220.2(g), shall also 
include:
    (1) A description of the product alleged to be identical, like, or 
directly competitive with the product that is the subject of the 
petition;
    (2) The Chemical Abstracts Service registry number for the product 
(if applicable);
    (3) A statement as to whether an identical, like, or directly 
competitive product was produced in the current calendar year and, if 
not, the year in which the product was last produced or in which 
production is expected to begin within the United States;
    (4) A statement as to whether such product is generally available 
for sale, and if not, an explanation of its lack of availability for 
sale; and/or
    (5) The physical address(es) for the location(s) of the production 
facility(ies) producing the product within the United States; and
    (6) Evidence demonstrating the existence of domestic production 
(e.g., catalogs, press releases, marketing materials, specification 
sheets, copies of orders for the product).
    (d) Additional comment period. The Commission may provide 
additional opportunity for public comment and, if so, will announce 
that comment period in the Federal Register.

0
8. Amend newly redesignated Sec.  220.12 by revising paragraph (b)(2) 
to read as follows:


Sec.  220.12  Commission preliminary report.

* * * * *
    (b) * * *
    (2) A list of petitions for duty suspensions and reductions for 
which the Commission recommends technical corrections in order to meet 
the requirements of the Act, with the correction specified.
* * * * *

    By order of the Commission.

    Issued: August 16, 2019.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2019-18008 Filed 8-26-19; 8:45 am]
 BILLING CODE 7020-02-P