ITA Finalizes Changes to Deadlines for Factual Information in AD/CVD Proceedings

The final rule is effective for all ITA proceedings that begin on or after May 10.

The rule finalizes a proposed rule issued by the agency on July 10, 2012 (see 12070928). In response to the proposal, commenters voiced concern about their ability to meet some of the deadlines (see 12092801). In this final rule, however, the ITA changed only one word from its proposal, clarifying that a provision on rebuttals and clarifications of factual information used to value factors of production or adequacy of remuneration applies to “publicly available information,” not “arguments” as was proposed.

“The Department continues to believe that time limits based on the type of factual information being submitted will result in increased certainty and more effective administration of the AD and CVD laws,” said the ITA, defending its decision to adopt specific deadlines for each type of factual information. Parties to AD/CVD proceedings submitting under the old regulations often submitted factual information when there wasn’t enough time for adequate comment, rebuttal, and analysis, the ITA said. This often resulted in parties not being able to see how the ITA used the information until after the final results or determination, the agency said.

“The modifications to the time limits enable the Department to efficiently determine the type of information being submitted and whether it is timely filed; they also ensure that the Department has sufficient opportunity to review submissions of factual information,” the ITA said.

New, More Specific Definition of 'Factual Information'

The final rule amends 19 CFR 351.102(b)(21) to more specifically define factual information. The old definition says “’Factual information’ means: (i) Initial and supplemental questionnaire responses; (ii) Data or statements of fact in support of allegations; (iii) Other data or statement of facts; and (iv) Documentary evidence.” The ITA’s rule amends that definition to specifically define the following five types of factual information:

(i) Evidence, including statements of fact, documents, and data submitted either in response to initial and supplemental questionnaires, or, to rebut, clarify, or correct such evidence submitted by any interested party;

(ii) Evidence, including statements of fact, documents, and data submitted either in support of allegations, or, to rebut, clarify, or correct such evidence submitted by any other interested party

(iii) Publicly available information submitted to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2), or, to rebut clarify or correct such publicly available information submitted by any other interested party

(iv) Evidence, including statements of fact, documents and data placed on the record by the ITA, or, evidence submitted by any interested party to rebut, clarify or correct such evidence placed on the record by the ITA

(v) Evidence, including statements of fact, documents, and data, other than factual information described in (i) -- (iv) of this section, in addition to evidence submitted by any other interested party to rebut, clarify, or correct such evidence.

The ITA said this definition does not change the types of information that can be submitted in a segment of a proceeding, but instead will allow for more accurate classification of factual information than the current definition.

New Time Limits Created, Others Modified

The final rule also amends 19 CFR 351.301 so that, rather than providing general time limits, there will be specific time limits based on the type of factual information being submitted, in accordance with the new definition. The amendments also (1) change some already established time limits for specific factual information; and (2) require any person, when submitting factual information, to specify under which subsection of the proposed definition of factual information the information is being submitted and, if the submission is intended to rebut, clarify, or correct factual information already on the record, to identify the information that the factual information seeks to rebut, clarify, or correct.

Highlights of changes include:

Elimination of general time limits. The general time limits provided for in Section 351.301(b) of the old regulations, such as seven days after verification, 140 days after last day of anniversary month in administrative reviews, 100 days after publication of initiation of new shipper review, etc., are eliminated.

Explanation of type of information. When submitting factual information, the party is now required to include a written explanation identifying the subsection of the definition (i.e., 351.201(b)(21)(i) -- (v)) under which the information is being submitted. If the party identifies the factual information under subsection (v) “other” category of the proposed definition, then it is now required to explain why the information does not fit in the other categories. Finally, if the factual information is being submitted to rebut, clarify, or correct factual information on the record, the submitter is now required to provide a written explanation identifying the information that it seeks to rebut, clarify, or correct.

Questionnaire responses. The final rule maintains the general 30-day deadline for initial questionnaire responses, the 14-day deadline for notification of difficulties in submitting the questionnaire etc. The rule sets a deadline of 14 days after the initial questionnaire response, and 10 days after a supplemental questionnaire response, for an interested party other than the original submitter to submit factual information seeking to rebut, clarify, or correct information contained in questionnaire response, and a deadline of 7 days after that filing for the original submitter to file its own rebuttal, clarification, or correction.

Factual information in support of allegations. The ITA’s final rule requires factual information submitted in support of allegations, as defined in proposed 19 CFR 351.102(b)(21)(ii), to be accompanied by a summary, of no longer than 5 pages, of the allegation and supporting data. Most new deadlines are the same as the old deadlines, but the final rule sets the deadline for an allegation of upstream subsidies at 60 days after the date of the preliminary determination (these allegations were due 10 days before the scheduled date of the preliminary determination, or 15 days before the scheduled date of the final determination).

Also, the final rule requires the ITA to provide an interested party with one opportunity to submit factual information to rebut, clarify, or correct the factual information submitted in support of allegations, due by 10 days after the original submission.

Factual info to value AD factors of production or CV adequate remuneration. The final rule sets the time limit for submission of information to value factors of production under 19 CFR 351.408(c) to 30 days before the preliminary determination (in an investigation) or results (in an administrative review) (the deadlines were 40 days and 20 days, respectively). The rule also sets the same deadline for submission of factual information to value adequate remuneration in CV cases.

ITA may place info on the record at any time. New 19 CFR 351.301(c)(4) specifically reserves the ability of the ITA to place factual information on the record at any time, and allows for one rebuttal per interested party due by a deadline determined by the ITA.