[Federal Register: September 15, 2008 (Volume 73, Number 179)]
[Notices]
[Page 53200-53206]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se08-48]
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COMMITTEE FOR THE IMPLEMENTATION OF TEXTILE AGREEMENTS
Modifications to Procedures for Considering Requests Under the
Commercial Availability Provision of the Dominican Republic-Central
America-United States Free Trade Agreement
AGENCY: Committee for the Implementation of Textile Agreements
(``CITA'').
ACTION: Modifications to the CAFTA-DR Commercial Availability Final
Procedures; Notice of Modified Procedures.
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SUMMARY: This notice presents the modifications to CITA's Final
Procedures under the CAFTA-DR Commercial Availability Provisions.
DATES: Effective Date: September 15, 2008.
FOR FURTHER INFORMATION CONTACT: Maria Dybczak, Office of Textiles and
Apparel, U.S. Department of Commerce, (202) 482-3400.
SUPPLEMENTARY INFORMATION:
Authority: Section 203(o)(4) of the CAFTA-DR Implementation Act;
the Statement of Administrative Action (``SAA''), accompanying the
CAFTA-DR, at 16-20.
Background
Annex 3.25 of the Dominican Republic-Central America-United States
Free Trade Agreement (``Agreement'') provides a list of fabrics, yarns,
and fibers that the Parties to the Agreement have determined are not
available in commercial quantities in a timely manner from suppliers in
the United States or other CAFTA-DR countries. A textile and apparel
good containing fabrics, yarns, or fibers that is included in Annex
3.25 of the Agreement may be treated as if it is an originating good
for purposes of the specific rules of origin in Annex 4.1 of the
Agreement, regardless of the actual origin of those inputs, provided
that all other fabrics, yarns, or fibers of the component that
determines the classification of the good meet the specific rules of
origin in Annex 4.1 of the Agreement. The CAFTA-DR Implementation Act
provides that the President will establish procedures governing the
submission of requests and may determine whether additional fabrics,
yarns, or fibers are not available in commercial quantities in a timely
manner in the United States or the other CAFTA-DR countries. In
addition, the CAFTA-DR Implementation Act establishes that the
President may remove a fabric, yarn, or fiber from the list, if it has
been added to the list in an unrestricted quantity pursuant to section
203(o), if he determines that the fabric, yarn, or fiber has become
available in commercial quantities in a timely manner.
The SAA provides that the President will delegate to CITA his
authority under section 203(o)(4) of the Agreement, known as the
Commercial Availability Provision, to establish procedures for
modifying the list of fabrics, yarns, or fibers not available in
commercial quantities in a timely manner for Agreement countries, as
set out in Annex 3.25 of the Agreement.
The CAFTA-DR Commercial Availability Final Procedures
(``procedures'') are not subject to the requirement to provide prior
notice and opportunity for public comment, pursuant to 5 U.S.C.
553(b)(A) (Administrative Procedures Act). These procedures may be
modified in the future to address concerns that may arise as CITA gains
experience in implementing them. CITA possesses inherent authority to
reconsider, and/or subsequently amend, commercial availability
determinations that may have been procured by error, fraud, or similar
faults. Should CITA undertake to review a determination under such
circumstances, CITA will provide notice to the public, through the
email and website notification processes described in the procedures,
and provide opportunity for interested entities to submit comments and
information for CITA's consideration.
CITA's Request for Public Comment on the Due Diligence Requirement
Under the CAFTA-DR Commercial Availability Procedures
On December 3, 2007, CITA issued a Federal Register notice
requesting public comment and proposals on the
[[Page 53201]]
operation of the due diligence requirement under CITA's procedures
implementing the CAFTA-DR Commercial Availability Provision. See
Request for Public Comment on the Due Diligence Requirement Under the
Commercial Availability Procedures of the Dominican Republic-Central
America-United States Free Trade Agreement (CAFTA-DR), 72 Fed. Reg.
67916 (December 3, 2007). In its notice, CITA explained that, based on
its experience in implementing those procedures, it was concerned that
due diligence efforts have fallen short of those expected when the
procedures were drafted; that product descriptions may not meet
recognized standards; that potential suppliers may not be adequately
substantiating their claims that they are to be able to supply
requested products; and that CITA is not receiving complete information
from interested entities regarding meaningful contact between
requesters and potential suppliers necessary for CITA to make informed
determinations. CITA requested comment on several areas involved in the
commercial availability process, including: communications between
requesters and potential suppliers; identification of potential
suppliers; content of communications between requesters and potential
suppliers; substitutability of products; commercial availability of a
production input vs. downstream product; and potential suppliers'
responses to requester's inquiry. As a result of its review and
consideration of submitted comments and proposals, CITA has modified
its existing procedures.
Modified Final Procedures
1. Introduction
The intent of the procedures is to foster the use of U.S. and
CAFTA-DR products by implementing procedures that allow products to be
placed on or removed from a product list, on a timely basis, and in a
manner that is consistent with normal business practice. To this end,
these procedures are intended to facilitate the transmission, on a
timely basis, of order requests and offers to supply such requests;
have the market indicate the availability of the supply of products
that are the subject of requests; make available promptly, to
interested entities and parties, information regarding the requests for
products and offers to supply received; ensure wide participation by
interested entities and parties; provide careful scrutiny of
information provided to substantiate order requests and response to
supply offers; and provide timely public dissemination of information
used by CITA in making commercial availability determinations.
2. Definitions
(a) Commercial Availability Request. A Commercial Availability
Request (``Request'') is a submission from an interested entity
requesting that CITA place a good on the list in Annex 3.25 because
that fiber, yarn, or fabric is not available in commercial quantities
in a timely manner from a supplier in the CAFTA-DR countries.
(b) Interested Entity. An ``interested entity'' means a government
that is a Party to the Agreement, other than the United States; a
potential or actual purchaser of a textile or apparel good; or a
potential or actual supplier of a textile or apparel good. CITA
recognizes that a legal or other representative may act on behalf of an
interested entity. See section 203(o)(4)(B)(i) of the CAFTA-DR
Implementation Act.
(c) Interested Party. An ``interested party'' means any interested
person that requests to be included on the email notification list for
commercial availability proceedings. Any interested person may become
an interested party by contacting CITA through the U.S. Department of
Commerce's Office of Textile and Apparel CAFTA-DR Commercial
Availability Web site or by sending an e-mail to OTEXA_
CAFTA@ita.doc.gov.
(d) Official Receipt. The ``official receipt'' is CITA's email
confirmation that it has received both the email version and the
original submission signed by the interested entity delivered via
express courier.
(e) Request. A ``Request'' refers to the Commercial Availability
Request.
(f) Request to Remove or Restrict. A ``Request to Remove or
Restrict'' is a submission from an interested entity, made no sooner
than six months after a product has been added to the Annex 3.25 list
in an unrestricted quantity pursuant to Section 203(o) of the CAFTA-DR
Implementation Act, requesting that CITA either remove a product or
that a quantity restriction be introduced.
(g) Requestor. The ``requestor'' refers to the interested entity
that files a Request, either a Request or a Request to Remove or
Restrict, under the CAFTA-DR Commercial Availability provision, for
CITA's consideration.
(h) CAFTA-DR Supplier. A ``CAFTA-DR supplier'' is a potential or
actual supplier of a textile or apparel good in the territory of any
Party.
(i) Response with an Offer to Supply. A ``Response with an Offer to
Supply'' (``Response'') is a submission from an interested entity to
CITA providing its objection to the Request and asserting its ability
to supply the subject product by providing an offer to supply the
subject product described in the Request.
(j) Rebuttal Comment. A ``Rebuttal Comment'' (``Rebuttal'') is a
submission from an interested entity providing information in response
to evidence or arguments raised in a Response. A Rebuttal must be
limited to evidence and arguments provided in a Response.
(k) Fiber, Yarn, or Fabric. The term ``fiber, yarn, or fabric''
means a single product or a range of products, which meet the same
specifications provided in a submission, and which may be only part of
a Harmonized Tariff Schedule of the United States (``HTSUS'')
provision.
(l) U.S. Business Day. A ``U.S. business-day'' is any calendar day
other than a Saturday, Sunday, or a legal holiday. See section
203(o)(4)(B)(i) of the CAFTA-DR Implementation Act.
3. Submissions for Participation in the CAFTA-DR Commercial
Availability Proceeding
(a) Filing a Submission. All submissions for a CAFTA-DR Commercial
Availability proceeding (e.g., Request, Response, Rebuttal, and Request
to Remove or Restrict) must be in English. If any attachments are in a
language other than English, then a translation must be provided. Each
submission must be submitted to the U.S. Department of Commerce's
Office of Textiles and Apparel (``OTEXA'') in two forms: electronic
mail and an original signed submission.
(1) An electronic mail (``e-mail'') version of the submission must
be either in PDF, Word, or Word-Perfect format and must contain an
adequate public summary of any business confidential information and
the due diligence certification, sent to OTEXA_CAFTA@ita.doc.gov. The
e-mail version of the submission will be posted for public review on
OTEXA's CAFTA-DR Commercial Availability Web site. No business
proprietary information should be submitted in the e-mail version of
any document.
(2) The original signed submission must be received via express
courier to--Chairman, Committee for the Implementation of Textile
Agreements, Room H3100, U.S. Department of Commerce, 14th and
Constitution Ave., NW., Washington, DC 20230. Any business confidential
information upon which an interested entity wishes to rely must be
included in the original signed submission only. Except for the
inclusion of business confidential information, the two versions of a
submission should be identical.
[[Page 53202]]
(3) Brackets must be placed around all business confidential
information contained in submissions. Documents containing business
confidential information must have a bolded heading stating
``Confidential Version.'' Attachments considered business confidential
information must have a heading stating ``Business Confidential
Information.'' Documents, including those submitted via ``e-mail,''
provided for public release, must have a bolded heading stating
``Public Version'' and all the business confidential information must
be deleted and substituted with asterisks.
(4) Generally, details such as quantities and lead times for
providing the subject product can be treated as business confidential
information. However, the names of CAFTA-DR suppliers who were
contacted, what was asked generally about the capability to manufacture
the subject product, and the responses thereto should be included in
public versions, which will be made available to the public.
(b) Due Diligence Certification. An interested entity must file a
certification of due diligence as described in subsection (b)(1) with
each submission, both e-mail and original signed versions, containing
factual information. If the interested entity has legal counsel or
other representative, the legal counsel or other representative must
file a certification of due diligence as described in subsection (b)(2)
with each submission, both e-mail and original signed versions,
containing factual information. Accurate representations of material
facts submitted to CITA for the CAFTA-DR Commercial Availability
proceeding are vital to the integrity of this process and are necessary
for CITA's effective administration of the statutory scheme. Each
submission containing factual information for CITA's consideration must
be accompanied by the appropriate certification regarding the accuracy
of the factual information. Any submission that lacks the applicable
certifications will be considered an incomplete submission that CITA
will reject and return to the submitter. CITA may verify any factual
information submitted by interested entities in a CAFTA-DR Commercial
Availability proceeding.
(1) For the person responsible for presentation of the factual
information: I, (name and title), currently employed by (interested
entity), certify that (1) I have read the attached submission, and (2)
the information contained in this submission is, to the best of my
knowledge, complete and accurate.
(2) For the person's legal counsel or other representative: I,
(name), of (law or other firm), counsel or representative to
(interested entity), certify that (1) I have read the attached
submission, and (2) based on the information made available to me by
(person), I have no reason to believe that this submission contains any
material misrepresentation or omission of fact.
(c) Official Receipt. A submission will be considered officially
submitted to CITA only when both the e-mail version and the original
signed submission have been received by CITA. For Requests, CITA will
confirm to the requestor that both versions of the Request were
received through an e-mail confirmation. CITA's e-mail confirmation
shall be considered the ``official receipt'' of the Request, and also
begins the statutory 30 U.S. business-day process for CITA
consideration of Requests. CITA will confirm official receipt of any
Response and Rebuttal by posting the submissions on the dedicated Web
site.
4. Submitting a Request for Consideration in a Commercial Availability
Proceeding
(a) Commercial Availability Request. An interested entity may
submit a Request to CITA alleging that a fiber, yarn, or fabric is not
available in commercial quantities in a timely manner from a producer
in the CAFTA-DR countries.
(b) Contents of a Commercial Availability Request.
(1) Detailed Product Information. The Request must provide a
detailed description of the subject product, including, if applicable,
fiber content, construction, yarn size, and finishing processes; and
the classification of the product under the HTSUS. All measurements in
the entire submission must be stated in metric units. If the English
count system is used in any part, then a conversion to metric units
must be provided. The description must include reasonable product
specifications, including, if applicable, fiber content, construction,
yarn size, and finishing processes, as well as timelines and
quantities. Reasonable product specifications include the use of
accepted terminology and standards, such as those used by ASTM
(``American Society for Testing and Materials'') or AATCC (``American
Association of Textile Chemists and Colorists'').
If any aspect of the Request is outside the normal course of
business (e.g., tight deadline, higher standards of performance,
requirements to match existing specifications), requestors must provide
CAFTA-DR suppliers with detailed explanations and measurable criteria
for the specification or term at issue. In the course of its review of
the Request, CITA will consider record evidence to determine whether
such specifications and terms are reasonable.
The requestor must clearly describe the unique characteristics of
the subject product that distinguishes it from other similar or
potentially substitutable products. In addition, the requestor must
also explain why such characteristics are required for the purposes of
the end-use of the product and cannot be substituted by another
product. However, all characteristics and specifications must be
supported by measurable criteria.
(2) Quantity. The Request must provide the specific quantity of the
product needed by the requestor, in standard units of quantity for
production of the subject product in the CAFTA-DR countries.
(3) Due Diligence. The Request must provide a complete description
of the due diligence undertaken by the requestor to determine the
subject product's availability in the CAFTA-DR countries. Due diligence
for the requestor means it has made reasonable efforts to obtain the
subject product from CAFTA-DR suppliers.
(i) Generally: The requestor must provide the names and addresses
of suppliers contacted, who (by name and position) was specifically
contacted, the exact request that was made, the dates of those
contacts, whether a sample of the subject product was provided for
review, and the exact response given for the supplier's inability to
supply the subject product under the same conditions as contained in
the Request submitted to CITA, in addition to any other information the
requestor believes is relevant. The requestor must submit copies or
notes of relevant correspondence, both inquiries and responses, with
these suppliers. Relevant correspondence includes notes of telephone
conversations.
(ii) Identification of CAFTA-DR suppliers: Requestors must make
reasonable efforts to identify CAFTA-DR suppliers in the CAFTA-DR
countries. Requestors should identify CAFTA-DR suppliers through a
number of means, including the requestor's knowledge of the industry,
industry directories, and industry association memberships. However, an
email from a requestor with a general inquiry to all manufacturers in
the CAFTA-DR countries may not constitute due diligence. Rather,
reasonable efforts must be taken to identify CAFTA-DR suppliers who are
generally known to produce the class or type of product at issue.
Requestors must provide an
[[Page 53203]]
explanation in their Request as to why their efforts to identify CAFTA-
DR suppliers were reasonable given the product at issue.
(iii) Use of Third Parties and Business-to-Business Contact: Due
diligence includes substantive and direct contact, indicating a
legitimate intent to do business, between requestors and CAFTA-DR
suppliers. Third party communications are no substitutes for meaningful
dialogue between appropriate officials. Once interest is expressed
between requestors and CAFTA-DR suppliers, subsequent communications
should be conducted by appropriate officials of the requestor and
CAFTA-DR supplier based on normal business practice. A lack of
appropriate business-to-business contact may be deemed as insufficient
due diligence.
(iv) Description of the Subject Product: In undertaking due
diligence, requestors must provide a detailed description of the
product to CAFTA-DR suppliers. The description must include reasonable
product specifications, including, if applicable, fiber content,
construction, yarn size, and finishing processes, as well as timelines
and quantities. Reasonable product specifications include the use of
accepted terminology and standards, such as those used by ASTM or
AATCC. If any aspect of the Request is outside the normal course of
business (e.g., tight deadline, higher standards of performance,
requirements to match existing specifications), requestors must provide
CAFTA-DR suppliers with detailed explanations and measurable criteria
for the specification or term at issue that would render such aspects
as reasonable for the product in question. CITA will consider record
evidence to determine whether such specifications and terms are
reasonable.
(v) Provision of Samples: In undertaking its due diligence, a
requestor must clearly communicate to CAFTA-DR suppliers its standard
business practice with respect to the provision of samples. While
requestors may request a sample, a CAFTA-DR supplier is not required to
provide a sample under CITA's procedures. However, CITA notes that
CAFTA-DR suppliers must meet certain requirements with respect to the
provision of samples and/or information demonstrating their ability to
supply the subject product in commercial quantities in a timely manner.
See Section 6(b)(3) and Section 6(b)(4).
(vi) Substitutability of Products: In undertaking its due
diligence, a requestor must clearly communicate information regarding
the substitutability of the product in question to CAFTA-DR suppliers.
In its inquiries to CAFTA-DR suppliers, the requestor must clearly
describe the unique characteristics of the subject product that
distinguishes it from other similar or potentially substitutable
products. In addition, the requestor must provide CAFTA-DR suppliers
with information why such characteristics are required for the purposes
of the end-use of the product and cannot be substituted by another
product. However, all characteristics and specifications must be
supported by measurable criteria. If, in the course of due diligence, a
CAFTA-DR supplier proposes a substitutable product, the requestor must
provide reasonable justifications to the CAFTA-DR supplier for
rejecting potentially substitutable products.
(vii) Treatment of Business Confidential Information: Specific
details of correspondence with suppliers, such as quantities and lead
times for providing the subject product, can be treated as business
confidential information. However, the names of CAFTA-DR suppliers who
were contacted, what was asked generally about the capability to
manufacture the subject product, and the responses thereto should be
available for public review to ensure proper public participation in
the process. ``Lead times'' refers to supplying the subject product
within normal business time frames for the subject product once an
order is received. Specific delivery dates are not necessary. Required
delivery dates that fall within the time needed to complete the
Commercial Availability determination process are not acceptable.
(4) Substitutable Products. The Request must provide information on
whether the requestor believes that other products supplied by the
CAFTA-DR supplier are not substitutable in commercial quantities in a
timely manner for the product(s) that is (are) the subject of the
Request for purposes of the intended use. Clearly describe the unique
characteristics of the subject product that distinguishes it from other
similar or potentially substitutable products. Describe why such
characteristics are required for the purposes of the end-use of the
product and cannot be substituted by another product available from a
CAFTA-DR supplier.
(5) Additional Information. The Request may provide any additional
evidence or information believed to be relevant for CITA to determine
whether a fiber, yarn, or fabric is not available in commercial
quantities in a timely manner from a producer in the CAFTA-DR
countries.
5. Consideration and Acceptance of a Request
In considering whether to accept a Request, CITA will consider and
determine whether it provides all the required information specified in
sections 3 and 4 of these procedures. CITA will determine whether to
accept the Request for consideration and investigation not later than
two U.S. business days after the official receipt of a Request.
(a) Request Rejected. If CITA determines that the Request does not
contain the required information, the requestor will be notified
promptly by email that the Request has not been accepted and the
reasons for the rejection. A Request may be resubmitted with additional
information for the subject product and CITA will reevaluate it as a
new Request.
(1) Requests for Downstream Products with Inputs Not Commercially
Available. If, in its initial review of a Request, CITA determines that
a subject product would be commercially available but for the
commercial unavailability of a certain input of the subject product,
CITA will reject the Request. The requestor may submit a Request for
the input in question rather than the downstream product.
(2) Requests for Products with Prohibited Inputs, Specifications,
and/or Processes. If, in its initial review of a Request, CITA
determines that the subject product requires inputs, specifications,
and/or processes that are prohibited under the laws and regulations of
the United States, CITA will reject the Request if there is a
substitute product that does not require such prohibited inputs,
specifications, or processes.
(b) Request Accepted. If CITA determines that the Request contains
the required information, CITA will notify interested parties by e-mail
that a Request has been accepted and filed and will assign a File
Number. CITA will post the accepted Request on its website for public
notice. The email notification and the website posting will indicate
the calendar date deadlines for submitting Responses and Rebuttals.
6. Submitting a Response With an Offer To Supply
Respondents must meet the requirements outlined in Section 3 of
these procedures. General comments in support of or opposition to a
Request do not meet the requirements of a Response. A Due Diligence
Certification must accompany a Response.
[[Page 53204]]
(a) Response With an Offer to Supply Submission. An interested
entity (a CAFTA-DR supplier) may file a submission to a Request CITA
accepted advising CITA of its objection to the Request and its ability
to supply the subject product by providing an offer to supply the
subject product as described in the Request. An interested entity will
have 10 U.S. business days after official receipt of a Request to
respond to a Request. If good cause is shown, CITA may extend this
deadline, but CITA will still meet the statutory deadline for making a
determination.
(b) Contents of a Response With an Offer to Supply.
(1) File Number. The Response must reference the CITA File Number
assigned to the particular Request being addressed.
(2) Quantity. The Response must supply the quantity of the subject
product that the respondent is capable of currently supplying, in
standard units of quantity. All measurements must be in metric units.
If the English count system is used in any part, then a conversion to
metric units must be provided.
(3) Production Capability/Demonstration of Ability to Supply. A
Response must contain information supporting the claim to supply the
subject product, or one substitutable, in commercial quantities in a
timely manner.
(i) The Response must report the quantity, in metric units, that
the CAFTA-DR supplier produced of the subject product, or a
substitutable product, in the preceding 24-month period.
(ii) For products that have experienced cyclical demand or are not
currently produced, the CAFTA-DR supplier must indicate the quantity
that has been supplied or offered commercially in the past, with an
explanation of the reasons it is not currently produced or offered.
(iii) If the subject product involves a new style, weight, or other
variation that is new to the market or new to the CAFTA-DR supplier,
then the supplier must provide detailed information on its current
ability to make the subject product in commercial quantities in a
timely manner. Such information could include current production
capacity, current loom availability, and standard timetables to
produce.
(iv) A CAFTA-DR supplier may support its claim to be able to
produce the subject product through provision of a sample meeting
exactly the specifications as presented in the Request. However, the
provision of a sample is not required. Regardless of whether a sample
is provided, a respondent must demonstrate its ability to produce the
subject product by providing sufficient relevant information regarding
their production capability. Such information could include past
production of similar products and/or descriptions of equipment and
identification of suppliers necessary to produce the subject product.
If some operations, such as finishing, will be completed by other
entities, the name of the facility and contact information must be
provided.
(v) The Response may provide, if relevant, the basis for the CAFTA-
DR supplier's rationale that other products that are supplied by the
CAFTA-DR supplier in commercial quantities in a timely manner are
substitutable for the subject product(s) for purposes of the intended
use, supported by measurable criteria.
(vi) In its review of a Response, CITA will consider whether the
CAFTA-DR supplier was responsive to the efforts employed by the
requestor to obtain the subject product in the course of due diligence.
In the event that a CAFTA-DR supplier was not responsive, a CAFTA-DR
supplier must provide a reasonable explanation in its Response as to
why it did not respond to earlier inquiries by the requestor in the
course of due diligence. CITA will reject a Response if it does not
include such explanation.
(4) Due Diligence. The Response must provide a complete description
of the due diligence undertaken by the CAFTA-DR supplier to
substantiate the ability to supply the subject product. If a CAFTA-DR
supplier has participated in the requestor's undertaking of due
diligence, the supplier must provide certain information in response to
the requestor's inquiries.
(i) If a CAFTA-DR supplier has been responsive to a requestor in
the undertaking of due diligence, the CAFTA-DR supplier must have
stated its ability to supply or not supply the subject product. If the
product can be supplied, the response to the inquiry must contain
information supporting the CAFTA-DR supplier's claim to supply the
subject product, or one substitutable, in commercial quantities in a
timely manner.
(ii) If a CAFTA-DR supplier offers to supply the subject product,
the supplier may support its offer by reporting the quantity, in metric
units, that it has produced of the subject product, or a substitutable
product, in the preceding 24-month period. If the CAFTA-DR supplier
does not provide such information, it must, subject to section
6(b)(4)(vii), explain why the information it has provided sufficiently
supports its offer to supply.
(iii) In response to a requestor's inquiry, for products that have
experienced cyclical demand or are not currently produced, the CAFTA-DR
supplier must provide the requestor the quantity that has been supplied
or offered commercially in the past, with an explanation of the reasons
it is not currently produced or offered.
(iv) If the subject product involves a new style, weight, or other
variation that is new to the market or new to the CAFTA-DR supplier,
then the supplier must provide detailed information on its current
ability to make the subject product in commercial quantities in a
timely manner. Such information could include current production
capacity, current loom availability, and standard timetables to produce
the subject product.
(v) A CAFTA-DR supplier may support its claim to be able to produce
the subject product through provision of a sample meeting the
specifications as presented in an inquiry. However, the provision of a
sample is not required. Regardless of whether a sample is provided, the
CAFTA-DR supplier must demonstrate its ability to produce the subject
product by providing sufficient relevant information regarding their
production capability. Such information could include past production
of similar products and/or descriptions of equipment and identification
of suppliers necessary to produce the subject product. If some
operations, such as finishing, will be completed by other entities, the
name of the facility and contact information must be provided.
(vi) A response to a requestor's inquiry must provide, as
applicable, the basis for the CAFTA-DR supplier's rationale that other
products that are supplied by the CAFTA-DR supplier in commercial
quantities in a timely manner are substitutable for the subject product
for purposes of the intended use, supported by measurable criteria.
(vii) Nothing in these procedures shall require any CAFTA-DR
supplier to provide business confidential or other commercially
sensitive information to a requestor. However, a CAFTA-DR supplier must
provide the requestor a reasonable explanation why such information was
not provided and why the information it has provided sufficiently
supports its offer to supply.
(5) Location of the CAFTA-DR supplier. The Response must provide
the name, address, phone number, and e-mail address of a contact person
at the
[[Page 53205]]
facility claimed to be able to supply the subject product.
7. Submitting a Rebuttal Comment
A Rebuttal must meet the requirements outlined in Section 3 of
these procedures. General comments in support of or opposition to a
Request or a Response do not meet the requirements of a Rebuttal. A Due
Diligence Certification must accompany a Rebuttal.
(a) Rebuttal Comment. Any interested entity may submit a Rebuttal
to a Response. An interested entity must submit its Rebuttal not later
than 4 U.S. business days after the deadline for Response. If good
cause is shown, CITA may extend the time limit, but CITA will still
meet the statutory deadline for making a determination.
(b) Contents of a Rebuttal. The Rebuttal Comment may respond only
to evidence or arguments raised in the Response and must identify the
Response, evidence and/or arguments to which it is responding. The
Rebuttal must reference the CITA File Number assigned to the particular
Request being addressed.
8. Determination Process
(a) Not later than 30 U.S. business days after official receipt of
a Request (or not later than 44 U.S. business days where an extension
is provided), CITA will notify interested entities by e-mail and
interested parties and the public by a posting on its Web site whether
the subject product is available in commercial quantities in a timely
manner in the CAFTA-DR countries and whether an interested entity has
objected to the Request.
(b) CITA will notify the public of the determination by publication
in the Federal Register when the determination results in a change to
the Commercial Availability List in Annex 3.25 of the Agreement.
(c) Types of Determinations.
(1) Denial. A denial means that CITA has determined that the
subject product is available in commercial quantities in a timely
manner in the CAFTA-DR countries. If a Request is denied, notice of the
denial will be posted on the CAFTA-DR Commercial Availability Web site.
(i) Denial of Requests for Downstream Products with Inputs Not
Commercially Available: If, during the course of its review of a
Request, CITA determines that the subject product is commercially
available but for the commercial unavailability of a certain input of
the subject product, CITA will deny the Request. The requestor may
submit a Request for the input in question rather than the downstream
product.
(3) Denial of Requests for Products with Prohibited Inputs,
Specifications, and/or Processes: If, during the course of its review
of a Request, CITA determines that the subject product requires inputs,
specifications, and/or processes that are prohibited under the laws and
regulations of the United States, CITA will deny the Request if there
is a substitute product that does not require such prohibited inputs,
specifications, or processes.
(2) Approval in Unrestricted Quantity. An approval in unrestricted
quantities means that CITA has determined that the subject product is
not available in commercial quantities in a timely manner in the CAFTA-
DR countries or that no interested entity has objected to the Request.
If a Request is approved without restriction, a notice will be
published in the U.S. Federal Register not later than 30 U.S. business
days (or not more than 44 U.S. business days where an extension is
provided) after the official receipt of a Request, adding the subject
product to the Commercial Availability List in Annex 3.25 of the
Agreement. The effective date of the determination is the date of
publication of the notice in the U.S. Federal Register.
(3) Approval in a Restricted Quantity.
(i) Approval in a Restricted Quantity: An Approval in a Restricted
Quantity means that CITA has determined to add the subject product to
the Commercial Availability List in Annex 3.25 of the Agreement with a
specified restricted quantity. CITA may approve the Request in a
restricted quantity if CITA determines that a CAFTA-DR supplier(s) can
partially fulfill the Request for the subject product. The restricted
quantity specifies the amount of the subject product that can be
provided by a CAFTA-DR supplier(s).
(A) If a Request is approved in a restricted quantity, a notice
will be published in the Federal Register not later than 30 U.S.
business days (or not more the 44 U.S. business days where an extension
is provided) after official receipt of the Request, adding the subject
product to the Commercial Availability List in Annex 3.25 of the
Agreement with a specified restricted quantity. The restricted quantity
specifies the amount of the subject product that can be provided by a
CAFTA-DR supplier(s).
(B) The effective date of the determination will be the date of
publication in the U.S. Federal Register.
(ii) Elimination of a restricted quantity: Not later than six
months after adding a product to the Commercial Availability List in
Annex 3.25 of the Agreement in a restricted quantity, CITA may
eliminate the restriction if it determines that the subject product is
not available in commercial quantities in a timely manner in the CAFTA-
DR countries.
(A) The determination that the subject product is not available in
commercial quantities in a timely manner will be based upon whether the
restricted quantity has been provided by a CAFTA-DR supplier(s). CITA
will solicit comments and information from the CAFTA-DR supplier(s) and
the requestor.
(B) If the CAFTA-DR supplier(s) are still capable of providing the
restricted quantity, the restriction will remain.
(C) If the CAFTA-DR supplier(s) are unable to provide the
restricted quantity, CITA will eliminate the restricted quantity. CITA
will publish a notice in the U.S. Federal Register, and post on the Web
site, that the restricted quantity is eliminated and the subject
product is added to the Commercial Availability List in Annex 3.25 in
an unrestricted quantity. The effective date of the determination will
be the date of publication in the U.S. Federal Register.
(4) Insufficient Information to Determine. CITA will extend its
time period for consideration of the Request by an additional 14 U.S.
business days in the event that CITA determines, not later than 30 U.S.
business days after official receipt of a Request, that it has
insufficient information to make a determination regarding the ability
of a CAFTA-DR supplier to supply the subject products of the Request
based on the submitted information. CITA will normally determine that
it does not have sufficient information to make a determination on a
Request when CITA finds there is inconsistency in material information
contained in the Request, one or more Responses, and/or the
Rebuttal(s). CITA will notify interested parties via e-mail that it has
extended the time period for CITA's consideration by 14 U.S. business-
days. CITA also will announce the extension on the Web site.
(i) Process during Extension Period: During the extended time
period, CITA will request that interested entities provide additional
evidence to substantiate the information provided, and may initiate a
meeting with interested entities. Should CITA elect to conduct a
meeting, it will comply with requirements to conduct proceedings in an
open manner. Such evidence may include inter alia product samples, lab
tests, detailed descriptions of product facilities, and comparisons of
product performance in the intended end-use of the subject product. Any
samples, if
[[Page 53206]]
requested, of fibers, yarns, or fabrics, that are provided to CITA will
be made available for public inspection at the Office of Textiles and
Apparel, Room 3110, U.S. Department of Commerce, 14th St. and
Constitution Ave., NW., Washington, DC 20230. All written submissions
must follow instructions described in Section 3 of these procedures.
Samples should be identified with a cover sheet that describes the
specifications of the sample and be identical to the specifications of
the Request.
(ii) CITA also will consider evidence in support of claims that
CAFTA-DR supplier(s) can supply a substantially similar product to that
specified in the Request.
(ii) CITA will make a determination, not later than 44 U.S.
business days after the official receipt of a Request whether to
approve, approve with restriction, or deny the Request and will follow
the notification process accordingly.
(5) Deemed Approval. In the event that CITA does not make a
determination in response to a Request to add a product to Annex 3.25
of the Agreement within the statutory deadlines provided, not later
than 45 U.S. business-days after the official receipt of the Request or
not later than 60 U.S. business-days after the official receipt of the
Request that was determined to lack sufficient information pursuant to
subsection (c)(4), the requested subject product shall be added to the
Commercial Availability List in Annex 3.25, in an unrestricted
quantity, in accordance with the requirements of section 203(o)(4)(D)
of the CAFTA-DR Implementation Act. CITA will notify the public of the
deemed approval by publication in the U.S. Federal Register and posting
on OTEXA's Web site.
9. Six Month Procedures
(a) Request to Remove or Restrict. No earlier than six months after
a product has been added to the Commercial Availability List in Annex
3.25 in an unrestricted quantity pursuant to Sections 203(o)(2) and (4)
of the CAFTA-DR Implementation Act, an interested entity may submit a
request to CITA requesting that a product be either removed or that a
quantity restriction be introduced.
(b) Content of a Request to Remove or Restrict. The Request to
Remove or Restrict must provide the substantive information set forth
in subsection 6(b) (Contents of a Response with an Offer to Supply) of
these procedures.
(c) Procedures.
(1) In considering whether to accept a Request to Remove or
Restrict, CITA will follow procedures set forth in Section 5
(Consideration and Acceptance of a Request) of these procedures.
(2) If CITA determines to accept the Request to Remove or Restrict,
CITA and any responding interested entity shall follow applicable
procedures and contents set forth in subsection 6(a) (Response with an
Offer to Supply) and Section 7 (Submitting a Rebuttal Comment) of these
procedures.
(3) As set forth in subsections 8(a) and (b) (Determination
Process) of these procedures, CITA will determine whether the subject
product of the Request to Remove or Restrict is available in commercial
quantities in a timely manner in the CAFTA-DR countries not later than
30 U.S. business days after the official receipt of the Request to
Remove or Restrict.
(i) If CITA determines that the product is available in commercial
quantities in a timely manner in the CAFTA-DR countries, e.g., that a
CAFTA-DR supplier is capable to supply the entire subject product
requested originally, then that product will be removed from the
Commercial Availability List in Annex 3.25 of the Agreement.
(ii) If CITA determines that the product is available in restricted
quantities in a timely manner in the CAFTA-DR countries, e.g., that a
CAFTA-DR supplier is capable to supply part of the subject product
requested originally then a restricted quantity will be introduced for
that product.
(iii) If the Commercial Availability List changes as a result of
CITA's determination for the Request to Remove or Restrict, CITA will
notify interested parties by e-mail of its determination and will
publish a notice of its determination for the Request to Remove or
Restrict in the U.S. Federal Register.
(A) For removal, the notice of determination will state that
textile and apparel articles containing the subject product are not to
be treated as originating in a CAFTA-DR country if the subject product
is obtained from non-CAFTA-DR sources, effective for goods entered into
the United States on or after six months (i.e., 180 calendar days)
after the date of publication of the notice.
(B) For restriction, the notice of determination will specify the
restricted quantity for the subject product that is to be effective on
or after six months (i.e., 180 calendar days) after the publication
date of the notice.
R. Matthew Priest,
Chairman, Committee for the Implementation of Textile Agreements.
[FR Doc. E8-21478 Filed 9-12-08; 8:45 am]
BILLING CODE 3510-DS-P