19 C.F.R. Subpart C—Information and Argument
Title 19 - Customs Duties
(a) Introduction. The Department obtains most of its factual information in antidumping and countervailing duty proceedings from submissions made by interested parties during the course of the proceeding. This section sets forth the time limits for submitting such factual information, including information in questionnaire responses, publicly available information to value factors in nonmarket economy cases, allegations concerning market viability, allegations of sales at prices below the cost of production, countervailable subsidy allegations, and upstream subsidy allegations. Section 351.302 sets forth the procedures for requesting an extension of such time limits. Section 351.303 contains the procedural rules regarding filing, format, translation, service, and certification of documents. (b) Time limits in general. Except as provided in paragraphs (c) and (d) of this section and §351.302, a submission of factual information is due no later than: (1) For a final determination in a countervailing duty investigation or an antidumping investigation, seven days before the date on which the verification of any person is scheduled to commence, except that factual information requested by the verifying officials from a person normally will be due no later than seven days after the date on which the verification of that person is completed; (2) For the final results of an administrative review, 140 days after the last day of the anniversary month, except that factual information requested by the verifying officials from a person normally will be due no later than seven days after the date on which the verification of that person is completed; (3) For the final results of a changed circumstances review, sunset review, or section 762 review, 140 days after the date of publication of notice of initiation of the review, except that factual information requested by the verifying officials from a person normally will be due no later than seven days after the date on which the verification of that person is completed; (4) For the final results of a new shipper review, 100 days after the date of publication of notice of initiation of the review, except that factual information requested by the verifying officials from a person normally will be due no later than seven days after the date on which the verification of that person is completed; and (5) For the final results of an expedited antidumping review, Article 8 violation review, Article 4/Article 7 review, or section 753 review, a date specified by the Secretary. (c) Time limits for certain submissions—(1) Rebuttal, clarification, or correction of factual information. Any interested party may submit factual information to rebut, clarify, or correct factual information submitted by any other interested party at any time prior to the deadline provided in this section for submission of such factual information. If factual information is submitted less than 10 days before, on, or after (normally only with the Department's permission) the applicable deadline for submission of such factual information, an interested party may submit factual information to rebut, clarify, or correct the factual information no later than 10 days after the date such factual information is served on the interested party or, if appropriate, made available under APO to the authorized applicant. (2) Questionnaire responses and other submissions on request. (i) Notwithstanding paragraph (b) of this section, the Secretary may request any person to submit factual information at any time during a proceeding. (ii) In the Secretary's written request to an interested party for a response to a questionnaire or for other factual information, the Secretary will specify the following: the time limit for the response; the information to be provided; the form and manner in which the interested party must submit the information; and that failure to submit requested information in the requested form and manner by the date specified may result in use of the facts available under section 776 of the Act and §351.308. (iii) Interested parties will have at least 30 days from the date of receipt to respond to the full initial questionnaire. The time limit for response to individual sections of the questionnaire, if the Secretary requests a separate response to such sections, may be less than the 30 days allotted for response to the full questionnaire. The date of receipt will be seven days from the date on which the initial questionnaire was transmitted. (iv) A notification by an interested party, under section 782(c)(1) of the Act, of difficulties in submitting information in response to a questionnaire issued by the Secretary is to be submitted in writing within 14 days after the date of receipt of the initial questionnaire. (v) A respondent interested party may request in writing that the Secretary conduct a questionnaire presentation. The Secretary may conduct a questionnaire presentation if the Secretary notifies the government of the affected country and that government does not object. (3) Submission of publicly available information to value factors under §351.408(c). Notwithstanding paragraph (b) of this section, interested parties may submit publicly available information to value factors under §351.408(c) within: (i) For a final determination in an antidumping investigation, 40 days after the date of publication of the preliminary determination; (ii) For the final results of an administrative review, new shipper review, or changed circumstances review, 20 days after the date of publication of the preliminary results of review; and (iii) For the final results of an expedited antidumping review, a date specified by the Secretary. (d) Time limits for certain allegations—(1) Market viability and the basis for determining a price-based normal value. In an antidumping investigation or administrative review, allegations regarding market viability, including the exceptions in §351.404(c)(2), are due, with all supporting factual information, within 40 days after the date on which the initial questionnaire was transmitted, unless the Secretary alters this time limit. (2) Sales at prices below the cost of production. An allegation of sales at prices below the cost of production made by the petitioner or other domestic interested party is due within: (i) In an antidumping investigation, (A) On a country-wide basis, 20 days after the date on which the initial questionnaire was transmitted to any person, unless the Secretary alters this time limit; or (B) On a company-specific basis, 20 days after a respondent interested party files the response to the relevant section of the questionnaire, unless the relevant questionnaire response is, in the Secretary's view, incomplete, in which case the Secretary will determine the time limit; (ii) In an administrative review, new shipper review, or changed circumstances review, on a company-specific basis, 20 days after a respondent interested party files the response to the relevant section of the questionnaire, unless the relevant questionnaire response is, in the Secretary's view, incomplete, in which case the Secretary will determine the time limit; or (iii) In an expedited antidumping review, on a company-specific basis, 10 days after the date of publication of the notice of initiation of the review. (3) Purchases of major inputs from an affiliated party at prices below the affiliated party's cost of production. An allegation of purchases of major inputs from an affiliated party at prices below the affiliated party's cost of production made by the petitioner or other domestic interested party is due within 20 days after a respondent interested party files the response to the relevant section of the questionnaire, unless the relevant questionnaire response is, in the Secretary's view, incomplete, in which case the Secretary will determine the time limits. (4) Countervailable subsidy; upstream subsidy—(i) In general. A countervailable subsidy allegation made by the petitioner or other domestic interested party is due no later than: (A) In a countervailing duty investigation, 40 days before the scheduled date of the preliminary determination; or (B) In an administrative review, new shipper review, or changed circumstances review, 20 days after all responses to the initial questionnaire are filed with the Department, unless the Secretary alters this time limit. (ii) Exception for upstream subsidy allegation in an investigation. In a countervailing duty investigation, an allegation of upstream subsidies made by the petitioner or other domestic interested party is due no later than: (A) 10 days before the scheduled date of the preliminary determination; or (B) 15 days before the scheduled date of the final determination. (5) Targeted dumping. In an antidumping investigation, an allegation of targeted dumping made by the petitioner or other domestic interested party under §351.414(f)(3) is due no later than 30 days before the scheduled date of the preliminary determination. (6) Green light and Green box claims. (i) In general. A claim that a particular subsidy or subsidy program should be accorded non-countervailable status under section 771(5B),(C), or (D) of the Act (“green light subsidies”) or under section 771(5B)(F) of the Act (“green box subsidies” must be made by the competent government with the full participation of the government authority responsible for funding and/or administering the program. Such claims are due no later than: (i) In a countervailing duty investigation, 40 days before the scheduled date of the preliminary determination, or (ii) In an administrative review, new shipper review, or changed circumstance review, 20 days afer all responses to the initial questionnaires are filed with the Department, unless the Secretary alters this time limit. (7) Investigation of notified subsidies. If the Secretary determines that there is insufficient evidence to demonstrate that an alleged subsidy or subsidy program has been notified under Article 8.3 of the WTO Subsidies and Countervailing Measures Agreement, the alleged subsidy or subsidy program will be included in the countervailing duty investigation or administrative, new shipper, or changed circumstance review. If the government authority claiming green light status establishes to the Secretary's satisfaction that the alleged subsidy or subsidy program has been notified, the Secretary will terminate the investigation of the notified subsidy. [62 FR 27379, May 19, 1997, as amended at 63 FR 65417, Nov. 25, 1998] (a) Introduction. This section sets forth the procedures for requesting an extension of a time limit. In addition, this section explains that certain untimely filed or unsolicited material will be returned to the submitter together with an explanation of the reasons for the return of such material. (b) Extension of time limits. Unless expressly precluded by statute, the Secretary may, for good cause, extend any time limit established by this part. (c) Requests for extension of specific time limit. Before the applicable time limit specified under §351.301 expires, a party may request an extension pursuant to paragraph (b) of this section. The request must be in writing and state the reasons for the request. An extension granted to a party must be approved in writing. (d) Return of untimely filed or unsolicited material. (1) Unless the Secretary extends a time limit under paragraph (b) of this section, the Secretary will not consider or retain in the official record of the proceeding: (i) Untimely filed factual information, written argument, or other material that the Secretary returns to the submitter, except as provided under §351.104(a)(2); or (ii) Unsolicited questionnaire responses, except as provided under §351.204(d)(2). (2) The Secretary will return such information, argument, or other material, or unsolicited questionnaire response with, to the extent practicable, written notice stating the reasons for return. (a) Introduction. This section contains the procedural rules regarding filing, format, service, translation, and certification of documents and applies to all persons submitting documents to the Department for consideration in an antidumping or countervailing duty proceeding. (b) Where to file; time of filing. Persons must address and submit all documents to the Secretary of Commerce, Attention: Import Administration, Central Records Unit, Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, between the hours of 8:30 a.m. and 5:00 p.m. on business days (see §351.103(b)). If the applicable time limit expires on a non-business day, the Secretary will accept documents that are filed on the next business day. (c) Number of copies; filing of business proprietary and public versions under the one-day lag rule; information in double brackets—(1) In general. Except as provided in paragraphs (c)(2) and (c)(3) of this section, a person must file six copies of each submission with the Department. (2) Application of the one-day lag rule—(i) Filing the business proprietary version. A person must file one copy of the business proprietary version of any document with the Department within the applicable time limit. Business proprietary version means the version of a document containing information for which a person claims business proprietary treatment under §351.304. (ii) Filing the final business proprietary version; bracketing corrections. By the close of business one business day after the date the business proprietary version is filed under paragraph (c)(2)(i) of this section, a person must file six copies of the final business proprietary version of the document with the Department. The final business proprietary version must be identical to the business proprietary version filed on the previous day except for any bracketing corrections. Although a person must file six copies of the complete final business proprietary version with the Department, the person may serve other persons with only those pages containing bracketing corrections. (iii) Filing the public version. Simultaneously with the filing of the final business proprietary version under paragraph (c)(2)(ii) of this section, a person also must file three copies of the public version of such document (see §351.304(c)) with the Department. (iv) Information in double brackets. If a person serves authorized applicants with a business proprietary version of a document that excludes information in double brackets pursuant to §351.304(b)(2), the person simultaneously must file with the Department one copy of those pages in which information in double brackets has been excluded. (3) Computer media and printouts. The Secretary may require submission of factual information on computer media unless the Secretary modifies such requirements under section 782(c) of the Act (see §351.301(c)(2)(iv)). The computer medium must be accompanied by the number of copies of any computer printout specified by the Secretary. All information on computer media must be releasable under APO (see §351.305). (d) Format of copies—(1) In general. Unless the Secretary alters the requirements of this section, documents filed with the Department must conform to the specification and marking requirements under paragraph (d)(2) of this section or the Secretary may refuse to accept such documents for the official record of the proceeding. (2) Specifications and markings. A person must submit documents on letter-size paper, single-sided and double-spaced, and must securely bind each copy as a single document with any letter of transmittal as the first page of the document. A submitter must mark the first page of each document in the upper right-hand corner with the following information in the following format: (i) On the first line, except for a petition, indicate the Department case number; (ii) On the second line, indicate the total number of pages in the document including cover pages, appendices, and any unnumbered pages; (iii) On the third line, indicate whether the document is for an investigation, scope inquiry, circumvention inquiry, downstream product monitoring application, or review and, if the latter, indicate the inclusive dates of the review, the type of review, and the section number of the Act corresponding to the type of review; (iv) On the fourth line, indicate the Department office conducting the proceeding; (v) On the fifth and subsequent lines, indicate whether any portion of the document contains business proprietary information and, if so, list the applicable page numbers and state either “Document May be Released Under APO” or “Document May Not be Released Under APO.” Indicate “Business Proprietary Treatment Requested” on the top of each page containing business proprietary information. In addition, include the warning “Bracketing of Business Proprietary Information is Not Final for One Business Day After Date of Filing” on the top of each page containing business proprietary information in the copy of the business proprietary version filed under §351.303(c)(2)(i) (one-day lag rule). Do not include this warning in the copies of the final business proprietary version filed on the next business day under §351.303(c)(2)(ii) (see §351.303(c)(2) and §351.304(c)); and (vi) For public versions of business proprietary documents required under §351.304(c), complete the marking as required in paragraphs (d)(2)(i)–(v) of this section for the business proprietary document, but conspicuously mark the first page “Public Version.” (e) Translation to English. A document submitted in a foreign language must be accompanied by an English translation of the entire document or of only pertinent portions, where appropriate, unless the Secretary waives this requirement for an individual document. A party must obtain the Department's approval for submission of an English translation of only portions of a document prior to submission to the Department. (f) Service of copies on other persons—(1)(i) In general. Except as provided in §351.202(c) (filing of petition), §351.207(f)(1) (submission of proposed suspension agreement), and paragraph (f)(3) of this section, a person filing a document with the Department simultaneously must serve a copy of the document on all other persons on the service list by personal service or first class mail. (ii) Service of public versions or a party's own business proprietary information. Notwithstanding paragraphs (f)(1)(i) and (f)(3) of this section, service of the public version of a document or of the business proprietary version of a document containing only the server's own business proprietary information, on persons on the service list, may be made by facsimile transmission or other electronic transmission process, with the consent of the person to be served. (2) Certificate of service. Each document filed with the Department must include a certificate of service listing each person served (including agents), the type of document served, and the date and method of service on each person. The Secretary may refuse to accept any document that is not accompanied by a certificate of service. (3) Service requirements for certain documents—(i) Briefs. In addition to the certificate of service requirements contained in paragraph (f)(2) of this section, a person filing a case or rebuttal brief with the Department simultaneously must serve a copy of that brief on all persons on the service list and on any U.S. Government agency that has submitted a case or rebuttal brief in the segment of the proceeding. If, under §351.103(c), a person has designated an agent to receive service that is located in the United States, service on that person must be either by personal service on the same day the brief is filed or by overnight mail or courier on the next day. If the person has designated an agent to receive service that is located outside the United States, service on that person must be by first class airmail. (ii) Request for review. In addition to the certificate of service requirements under paragraph (f)(2) of this section, an interested party that files with the Department a request for an expedited antidumping review, an administrative review, a new shipper review, or a changed circumstances review must serve a copy of the request by personal service or first class mail on each exporter or producer specified in the request and on the petitioner by the end of the anniversary month or within ten days of filing the request for review, whichever is later. If the interested party that files the request is unable to locate a particular exporter or producer, or the petitioner, the Secretary may accept the request for review if the Secretary is satisfied that the party made a reasonable attempt to serve a copy of the request on such person. (g) Certifications. A person must file with each submission containing factual information the certification in paragraph (g)(1) of this section and, in addition, if the person has legal counsel or another representative, the certification in paragraph (g)(2) of this section: (1) For the person's officially responsible for presentation of the factual information:
I, (name and title), currently employed by (person), 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 (person), 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. (a) Claim for business proprietary treatment. (1) Any person that submits factual information to the Secretary in connection with a proceeding may: (i) Request that the Secretary treat any part of the submission as business proprietary information that is subject to disclosure only under an administrative protective order, (ii) Claim that there is a clear and compelling need to withhold certain business proprietary information from disclosure under an administrative protective order, or (iii) In an investigation, identify customer names that are exempt from disclosure under administrative protective order under section 777(c)(1)(A) of the Act. (2) The Secretary will require that all business proprietary information presented to, or obtained or generated by, the Secretary during a segment of a proceeding be disclosed to authorized applicants, except for (i) Customer names submitted in an investigation, (ii) Information for which the Secretary finds that there is a clear and compelling need to withhold from disclosure, and (iii) Privileged or classified information. (b) Identification of business proprietary information—(1) In general. A person submitting information must identify the information for which it claims business proprietary treatment by enclosing the information within single brackets. The submitting person must provide with the information an explanation of why each item of bracketed information is entitled to business proprietary treatment. A person submitting a request for business proprietary treatment also must include an agreement to permit disclosure under an administrative protective order, unless the submitting party claims that there is a clear and compelling need to withhold the information from disclosure under an administrative protective order. (2) Information claimed to be exempt from disclosure under administrative protective order. (i) If the submitting person claims that there is a clear and compelling need to withhold certain information from disclosure under an administrative protective order (see paragraph (a)(1)(ii) of this section), the submitting person must identify the information by enclosing the information within double brackets, and must include a full explanation of the reasons for the claim. (ii) In an investigation, the submitting person may enclose business proprietary customer names within double brackets (see paragraph (a)(1)(iii) of this section). (iii) The submitting person may exclude the information in double brackets from the business proprietary information version of the submission served on authorized applicants. See §351.303 for filing and service requirements. (c) Public version. (1) A person filing a submission that contains information for which business proprietary treatment is claimed must file a public version of the submission. The public version must be filed on the first business day after the filing deadline for the business proprietary version of the submission (see §351.303(b)). The public version must contain a summary of the bracketed information in sufficient detail to permit a reasonable understanding of the substance of the information. If the submitting person claims that summarization is not possible, the claim must be accompanied by a full explanation of the reasons supporting that claim. Generally, numerical data will be considered adequately summarized if grouped or presented in terms of indices or figures within 10 percent of the actual figure. If an individual portion of the numerical data is voluminous, at least one percent representative of that portion must be summarized. A submitter should not create a public summary of business proprietary information of another person. (2) If a submitting party discovers that it has failed to bracket information correctly, the submitter may file a complete, corrected business proprietary version of the submission along with the public version (see §351.303(b)). At the close of business on the day on which the public version of a submission is due under paragraph (c)(2) of this section, however, the bracketing of business proprietary information in the original business proprietary version or, if a corrected version is timely filed, the corrected business proprietary version will become final. Once bracketing has become final, the Secretary will not accept any further corrections to the bracketing of information in a submission, and the Secretary will treat non-bracketed information as public information. (d) Nonconforming submissions—(1) In general. The Secretary will return a submission that does not meet the requirements of section 777(b) of the Act and this section with a written explanation. The submitting person may take any of the following actions within two business days after receiving the Secretary's explanation: (i) Correct the problems and resubmit the information; (ii) If the Secretary denied a request for business proprietary treatment, agree to have the information in question treated as public information; (iii) If the Secretary granted business proprietary treatment but denied a claim that there was a clear and compelling need to withhold information under an administrative protective order, agree to the disclosure of the information in question under an administrative protective order; or (iv) Submit other material concerning the subject matter of the returned information. If the submitting person does not take any of these actions, the Secretary will not consider the returned submission. (2) Timing. The Secretary normally will determine the status of information within 30 days after the day on which the information was submitted. If the business proprietary status of information is in dispute, the Secretary will treat the relevant portion of the submission as business proprietary information until the Secretary decides the matter. [63 FR 24401, May 4, 1998] (a) The administrative protective order. The Secretary will place an administrative protective order on the record within two days after the day on which a petition is filed or an investigation is self-initiated, or five days after initiating any other segment of a proceeding. The administrative protective order will require the authorized applicant to: (1) Establish and follow procedures to ensure that no employee of the authorized applicant's firm releases business proprietary information to any person other than the submitting party, an authorized applicant, or an appropriate Department official identified in section 777(b) of the Act; (2) Notify the Secretary of any changes in the facts asserted by the authorized applicant in its administrative protective order application; (3) Destroy business proprietary information by the time required under the terms of the administrative protective order; (4) Immediately report to the Secretary any apparent violation of the administrative protective order; and (5) Acknowledge that any unauthorized disclosure may subject the authorized applicant, the firm of which the authorized applicant is a partner, associate, or employee, and any partner, associate, or employee of the authorized applicant's firm to sanctions listed in part 354 of this chapter (19 CFR part 354). (b) Application for access under administrative protective order. (1) Generally, no more than two independent representatives of a party to the proceeding may have access to business proprietary information under an administrative protective order. A party must designate a lead firm if the party has more than one independent authorized applicant firm. (2) A representative of a party to the proceeding may apply for access to business proprietary information under the administrative protective order by submitting Form ITA–367 to the Secretary. Form ITA–367 must identify the applicant and the segment of the proceeding involved, state the basis for eligibility of the applicant for access to business proprietary information, and state the agreement of the applicant to be bound by the administrative protective order. Form ITA–367 may be prepared on the applicant's own word-processing system, and must be accompanied by a certification that the application is consistent with Form ITA–367 and an acknowledgment that any discrepancies will be interpreted in a manner consistent with Form ITA–367. An applicant must apply to receive all business proprietary information on the record of the segment of a proceeding in question, but may waive service of business proprietary information it does not wish to receive from other parties to the proceeding. An applicant must serve an APO application on the other parties in the same manner and at the same time as it serves the application on the Department. (3) To minimize the disruption caused by late applications, an application should be filed before the first questionnaire response has been submitted. Where justified, however, applications may be filed up to the date on which the case briefs are due, but any applicant filing after the first questionnaire response is submitted will be liable for costs associated with the additional production and service of business proprietary information already on the record. Parties have five days to serve their business proprietary information already on the record to applicants authorized to receive such information after such information has been placed on the record. (c) Approval of access under administrative protective order; administrative protective order service list. The Secretary will grant access to a qualified applicant by including the name of the applicant on an administrative protective order service list. Access normally will be granted within five days of receipt of the application unless there is a question regarding the eligibility of the applicant to receive access. In that case, the Secretary will decide whether to grant the applicant access within 30 days of receipt of the application. The Secretary will provide by the most expeditious means available the administrative protective order service list to parties to the proceeding on the day the service list is issued or amended. [63 FR 24402, May 4, 1998] (a) By the Secretary. The Secretary may disclose business proprietary information submitted to the Secretary only to: (1) An authorized applicant; (2) An employee of the Department of Commerce or the International Trade Commission directly involved in the proceeding in which the information is submitted; (3) An employee of the Customs Service directly involved in conducting a fraud investigation relating to an antidumping or countervailing duty proceeding; (4) The U.S. Trade Representative as provided by 19 U.S.C. 3571(i); (5) Any person to whom the submitting person specifically authorizes disclosure in writing; and (6) A charged party or counsel for the charged party under 19 CFR part 354. (b) By an authorized applicant. An authorized applicant may retain business proprietary information for the time authorized by the terms of the administrative protective order. An authorized applicant may use business proprietary information for purposes of the segment of a proceeding in which the information was submitted. If business proprietary information that was submitted in a segment of the proceeding is relevant to an issue in a different segment of the proceeding, an authorized applicant may place such information on the record of the subsequent segment as authorized by the APO. (c) Identifying parties submitting business proprietary information. (1) If a party submits a document containing business proprietary information of another person, the submitting party must identify, contiguously with each item of business proprietary information, the person that originally submitted the item (e.g., Petitioner, Respondent A, Respondent B). Business proprietary information not identified will be treated as information of the person making the submission. If the submission contains business proprietary information of only one person, it shall so state on the first page and identify the person that originally submitted the business proprietary information on the first page. (2) If a party to a proceeding is not represented by an authorized applicant, a party submitting a document containing the unrepresented party's business proprietary information must serve the unrepresented party with a version of the document that contains only the unrepresented party's business proprietary information. The document must not contain the business proprietary information of other parties. (d) Disclosure to parties not authorized to receive business proprietary information. No person, including an authorized applicant, may disclose the business proprietary information of another person to any other person except another authorized applicant or a Department official described in paragraph (a)(2) of this section. Any person that is not an authorized applicant and that is served with business proprietary information must return it to the sender immediately, to the extent possible without reading it, and must notify the Department. An allegation of an unauthorized disclosure will subject the person that made the alleged unauthorized disclosure to an investigation and possible sanctions under 19 CFR part 354. [63 FR 24403, May 4, 1998] (a) Introduction. Prior to making a final determination in an investigation or issuing final results of review, the Secretary may verify relevant factual information. This section clarifies when verification will occur, the contents of a verification report, and the procedures for verification. (b) In general. (1) Subject to paragraph (b)(4) of this section, the Secretary will verify factual information upon which the Secretary relies in: (i) A final determination in a continuation of a previously suspended countervailing duty investigation (section 704(g) of the Act), countervailing duty investigation, continuation of a previously suspended antidumping investigation (section 705(a) of the Act), or antidumping investigation; (ii) The final results of an expedited antidumping review; (iii) A revocation under section 751(d) of the Act; (iv) The final results of an administrative review, new shipper review, or changed circumstances review, if the Secretary decides that good cause for verification exists; and (v) The final results of an administrative review if: (A) A domestic interested party, not later than 100 days after the date of publication of the notice of initiation of review, submits a written request for verification; and (B) The Secretary conducted no verification under this paragraph during either of the two immediately preceding administrative reviews. (2) The Secretary may verify factual information upon which the Secretary relies in a proceeding or a segment of a proceeding not specifically provided for in paragraph (b)(1) of this section. (3) If the Secretary decides that, because of the large number of exporters or producers included in an investigation or administrative review, it is impractical to verify relevant factual information for each person, the Secretary may select and verify a sample. (4) The Secretary may conduct verification of a person if that person agrees to verification and the Secretary notifies the government of the affected country and that government does not object. If the person or the government objects to verification, the Secretary will not conduct verification and may disregard any or all information submitted by the person in favor of use of the facts available under section 776 of the Act and §351.308. (c) Verification report. The Secretary will report the methods, procedures, and results of a verification under this section prior to making a final determination in an investigation or issuing final results in a review. (d) Procedures for verification. The Secretary will notify the government of the affected country that employees of the Department will visit with the persons listed below in order to verify the accuracy and completeness of submitted factual information. The notification will, where practicable, identify any member of the verification team who is not an officer of the U.S. Government. As part of the verification, employees of the Department will request access to all files, records, and personnel which the Secretary considers relevant to factual information submitted of: (1) Producers, exporters, or importers; (2) Persons affiliated with the persons listed in paragraph (d)(1) of this section, where applicable; (3) Unaffiliated purchasers, or (4) The government of the affected country as part of verification in a countervailing duty proceeding. (a) Introduction. The Secretary may make determinations on the basis of the facts available whenever necessary information is not available on the record, an interested party or any other person withholds or fails to provide information requested in a timely manner and in the form required or significantly impedes a proceeding, or the Secretary is unable to verify submitted information. If the Secretary finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Secretary may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available. This section lists some of the sources of information upon which the Secretary may base an adverse inference and explains the actions the Secretary will take with respect to corroboration of information. (b) In general. The Secretary may make a determination under the Act and this part based on the facts otherwise available in accordance with section 776(a) of the Act. (c) Adverse Inferences. For purposes of section 776(b) of the Act, an adverse inference may include reliance on: (1) Secondary information, such as information derived from: (i) The petition; (ii) A final determination in a countervailing duty investigation or an antidumping investigation; (iii) Any previous administrative review, new shipper review, expedited antidumping review, section 753 review, or section 762 review; or (2) Any other information placed on the record. (d) Corroboration of secondary information. Under section 776(c) of the Act, when the Secretary relies on secondary information, the Secretary will, to the extent practicable, corroborate that information from independent sources that are reasonably at the Secretary's disposal. Independent sources may include, but are not limited to, published price lists, official import statistics and customs data, and information obtained from interested parties during the instant investigation or review. Corroborate means that the Secretary will examine whether the secondary information to be used has probative value. The fact that corroboration may not be practicable in a given circumstance will not prevent the Secretary from applying an adverse inference as appropriate and using the secondary information in question. (e) Use of certain information. In reaching a determination under the Act and this part, the Secretary will not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable requirements established by the Secretary if the conditions listed under section 782(e) of the Act are met. (f) Use of facts available in a sunset review. Where the Secretary determines to issue final results of sunset review on the basis of facts available, the Secretary normally will rely on: (1) Calculated countervailing duty rates or dumping margins, as applicable, from prior Department determinations; and (2) Information contained in parties' substantive responses to the Notice of Initiation filed under §351.218(d)(3), consistent with section 752(b) or 752(c) of the Act, as applicable. [62 FR 27379, May 19, 1997, as amended at 63 FR 13524, Mar. 20, 1998] (a) Introduction. Written argument may be submitted during the course of an antidumping or countervailing duty proceeding. This section sets forth the time limits for submission of case and rebuttal briefs and provides guidance on what should be contained in these documents. (b) Written argument—(1) In general. In making the final determination in a countervailing duty investigation or antidumping investigation or the final results of an administrative review, new shipper review, expedited antidumping review, section 753 review, or section 762 review, the Secretary will consider written arguments in case or rebuttal briefs filed within the time limits in this section. (2) Written argument on request. Notwithstanding paragraph (b)(1) of this section, the Secretary may request written argument on any issue from any person or U.S. Government agency at any time during a proceeding. (c) Case brief. (1) Any interested party or U.S. Government agency may submit a “case brief” within: (i) For a final determination in a countervailing duty investigation or antidumping investigation, or for the final results of a full sunset review, 50 days after the date of publication of the preliminary determination or results of review, as applicable, unless the Secretary alters the time limit; (ii) For the final results of an administrative review, new shipper review, changed circumstances review, or section 762 review, 30 days after the date of publication of the preliminary results of review, unless the Secretary alters the time limit; or (iii) For the final results of an expedited sunset review, expedited antidumping review, Article 8 violation review, Article 4/Article 7 review, or section 753 review, a date specified by the Secretary. (2) The case brief must present all arguments that continue in the submitter's view to be relevant to the Secretary's final determination or final results, including any arguments presented before the date of publication of the preliminary determination or preliminary results. As part of the case brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. (d) Rebuttal brief. (1) Any interested party or U.S. Government agency may submit a “rebuttal brief” within five days after the time limit for filing the case brief, unless the Secretary alters this time limit. (2) The rebuttal brief may respond only to arguments raised in case briefs and should identify the arguments to which it is responding. As part of the rebuttal brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. (e) Comments on adequacy of response and appropriateness of expedited sunset review—(i) In general. Where the Secretary determines that respondent interested parties provided inadequate response to a Notice of Initiation (see §351.218(e)(1)(ii)) and has notified the International Trade Commission as such under §351.218(e)(1)(ii)(C), interested parties (and industrial users and consumer organizations) that submitted a complete substantive response to the Notice of Initiation under §351.218(d)(3) may file comments on whether an expedited sunset review under section 751(c)(3)(B) of the Act and §351.218(e)(1)(ii)(B) or 351.218(e)(1)(ii)(C) is appropriate based on the adequacy of responses to the notice of initiation. These comments may not include any new factual information or evidence (such as supplementation of a substantive response to the notice of initiation) and are limited to five pages. (ii) Time limit for filing comments. Comments on adequacy of response and appropriateness of expedited sunset review must be filed not later than 70 days after the date publication in the [62 FR 27379, May 19, 1997, as amended at 63 FR 13524, Mar. 20, 1998; 70 FR 62064, Oct. 28, 2005] (a) Introduction. This section sets forth the procedures for requesting a hearing, indicates that the Secretary may consolidate hearings, and explains when the Secretary may hold closed hearing sessions. (b) Pre-hearing conference. The Secretary may conduct a telephone pre-hearing conference with representatives of interested parties to facilitate the conduct of the hearing. (c) Request for hearing. Any interested party may request that the Secretary hold a public hearing on arguments to be raised in case or rebuttal briefs within 30 days after the date of publication of the preliminary determination or preliminary results of review, unless the Secretary alters this time limit, or in a proceeding where the Secretary will not issue a preliminary determination, not later than a date specified by the Secretary. To the extent practicable, a party requesting a hearing must identify arguments to be raised at the hearing. At the hearing, an interested party may make an affirmative presentation only on arguments included in that party's case brief and may make a rebuttal presentation only on arguments included in that party's rebuttal brief. (d) Hearings in general. (1) If an interested party submits a request under paragraph (c) of this section, the Secretary will hold a public hearing on the date stated in the notice of the Secretary's preliminary determination or preliminary results of administrative review (or otherwise specified by the Secretary in an expedited antidumping review), unless the Secretary alters the date. Ordinarily, the hearing will be held two days after the scheduled date for submission of rebuttal briefs. (2) The hearing is not subject to 5 U.S.C. §§551–559, and §702 (Administrative Procedure Act). Witness testimony, if any, will not be under oath or subject to cross-examination by another interested party or witness. During the hearing, the chair may question any person or witness and may request persons to present additional written argument. (e) Consolidated hearings. At the Secretary's discretion, the Secretary may consolidate hearings in two or more cases. (f) Closed hearing sessions. An interested party may request a closed session of the hearing no later than the date the case briefs are due in order to address limited issues during the course of the hearing. The requesting party must identify the subjects to be discussed, specify the amount of time requested, and justify the need for a closed session with respect to each subject. If the Secretary approves the request for a closed session, only authorized applicants and other persons authorized by the regulations may be present for the closed session (see §351.305). (g) Transcript of hearing. The Secretary will place a verbatim transcript of the hearing in the public and official records of the proceeding and will announce at the hearing how interested parties may obtain copies of the transcript. (a) Introduction. During the course of a countervailing duty investigation or review, Department officials may discover or receive notice of a practice that appears to provide a countervailable subsidy. This section explains when the Secretary will examine such a practice. (b) Inclusion in proceeding. If during a countervailing duty investigation or a countervailing duty administrative review the Secretary discovers a practice that appears to provide a countervailable subsidy with respect to the subject merchandise and the practice was not alleged or examined in the proceeding, or if, pursuant to section 775 of the Act, the Secretary receives notice from the United States Trade Representative that a subsidy or subsidy program is in violation of Article 8 of the Subsidies Agreement, the Secretary will examine the practice, subsidy, or subsidy program if the Secretary concludes that sufficient time remains before the scheduled date for the final determination or final results of review. (c) Deferral of examination. If the Secretary concludes that insufficient time remains before the scheduled date for the final determination or final results of review to examine the practice, subsidy, or subsidy program described in paragraph (b) of this section, the Secretary will: (1) During an investigation, allow the petitioner to withdraw the petition without prejudice and resubmit it with an allegation with regard to the newly discovered practice, subsidy, or subsidy program; or (2) During an investigation or review, defer consideration of the newly discovered practice, subsidy, or subsidy program until a subsequent administrative review, if any. (d) Notice. The Secretary will notify the parties to the proceeding of any practice the Secretary discovers, or any subsidy or subsidy program with respect to which the Secretary receives notice from the United States Trade Representative, and whether or not it will be included in the then ongoing proceeding. (a) Introduction. The URAA provides for opportunity for comment by consumer organizations and industrial users on matters relevant to a particular determination of dumping, subsidization, or injury. This section indicates under what circumstances such persons may submit relevant information and argument. (b) Opportunity to submit relevant information and argument. In an antidumping or countervailing duty proceeding under title VII of the Act and this part, an industrial user of the subject merchandise or a representative consumer organization, as described in section 777(h) of the Act, may submit relevant factual information and written argument to the Department under paragraphs (d)(3)(ii), and (d)(3)(vi), and (d)(4) of §351.218, paragraphs (b), (c)(1), and (c)(3) of §351.301, and paragraphs (c), (d), and (e) of §351.309 concerning dumping or a countervailing subsidy. All such submissions must be filed in accordance with §351.303. (c) Business proprietary information. Persons described in paragraph (b) of this section may request business proprietary treatment of information under §351.304, but will not be granted access under §351.305 to business proprietary information submitted by other persons. [62 FR 27379, May 19, 1997, as amended at 63 FR 13524, Mar. 20, 1998]
Title 19: Customs Duties
PART 351—ANTIDUMPING AND COUNTERVAILING DUTIES
Subpart C—Information and Argument
§ 351.301 Time limits for submission of factual information.
§ 351.302 Extension of time limits; return of untimely filed or unsolicited material.
§ 351.303 Filing, format, translation, service, and certification of documents.
§ 351.304 Establishing business proprietary treatment of information.
§ 351.305 Access to business proprietary information.
§ 351.306 Use of business proprietary information.
§ 351.307 Verification of information.
§ 351.308 Determinations on the basis of the facts available.
§ 351.309 Written argument.
§ 351.310 Hearings.
§ 351.311 Countervailable subsidy practice discovered during investigation or review.
§ 351.312 Industrial users and consumer organizations.
