[Federal Register Volume 63, Number 85 (Monday, May 4, 1998)]
[Rules and Regulations]
[Pages 24391-24415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11802]
[[Page 24391]]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Parts 351 and 354
[Docket No. 960123011-8040-02]
RIN 0625-AA43
Antidumping and Countervailing Duty Proceedings: Administrative
Protective Order Procedures; Procedures for Imposing Sanctions for
Violation of a Protective Order
AGENCY: International Trade Administration, Commerce.
ACTION: Final rule.
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SUMMARY: The Department of Commerce (``the Department'') is amending
its regulations on administrative protective order (``APO'') procedures
in antidumping and countervailing duty proceedings to simplify and
streamline the APO administrative process and reduce the administrative
burdens on the Department and trade practitioners. The Department is
also amending the regulations to simplify the procedures for
investigating alleged violations of APOs and the imposition of
sanctions. These changes are made in response to and in cooperation
with the trade practitioners that are subject to these rules.
EFFECTIVE DATE: The effective date of this final rule is June 3, 1998.
This final rule will apply to all investigations initiated on the basis
of petitions filed on or after June 3, 1998, and other segments of
proceedings initiated after this date.
FOR FURTHER INFORMATION CONTACT: For further information contact Joan
L. MacKenzie or Mark A. Barnett, Office of Chief Counsel for Import
Administration, (202) 482-1310 or (202) 482-2866, respectively.
SUPPLEMENTARY INFORMATION:
General Background
APO Procedures
On February 8, 1996, the Department published proposed rules
governing procedures for providing access to business proprietary
information submitted to the Department by other parties in U.S.
antidumping (``AD'') and countervailing duty (``CVD'') proceedings.
Proposed Rule and Request for Comment (Antidumping and Countervailing
Duty Proceedings; Administrative Protective Order Procedures;
Procedures for Imposing Sanctions for Violations of a Protective
Order), 61 FR 4826 (``February Notice''). See also, Proposed Changes to
Administrative Protective Order Procedures in Antidumping and
Countervailing Duty Proceedings, APO Application Form and Standard APO,
59 FR 51559 (October 12, 1994) (``October Notice'').
The Department proposed these changes in APO procedures in
consultation with trade practitioners, who are the ones most directly
affected by these procedures. Specifically, Department staff consulted
with representatives of the International Law Section of the District
of Columbia Bar, the International Trade Committee of the Section of
International Law and Practice of the American Bar Association, the ITC
Trial Lawyers Association, and the Customs and International Trade Bar
Association. As a result of the consultations, the Department proposed
changes in the APO process to improve the process, to simplify and
streamline the process for all concerned, including the Department, and
at the same time to continue to ensure protection of business
proprietary information from unauthorized disclosure.
After analyzing and carefully considering all of the comments that
the Department received in response to the February Notice and after
further review of the provisions of the proposed rule, the Department
is publishing final regulations. These regulations improve, simplify,
and streamline the APO process significantly and, at the same time,
protect business proprietary information from unauthorized disclosure.
Effective Date
The new APO procedures, including the use of the revised
application for APO, form ITA-367 (5.98), will become effective June 3,
1998. They will apply to all investigations initiated on the basis of
petitions filed on or after June 3, 1998, and other segments of
proceedings initiated after this date. Segments of proceedings to which
these regulations do not apply will continue to be governed by the
regulations in effect on the date the petitions were filed or other
segments were initiated, to the extent that those regulations were not
invalidated by the URAA or replaced by the interim final regulations
published on May 11, 1995 (60 FR 25130 (1995)) and Sec. 351.105 of the
AD/CVD procedural regulations that the Department published separately
on May 19, 1997 (62 FR 27296), (hereinafter referred to as the May 19
Regulations). In these segments of proceedings, the Department will
require that parties use the old APO application form ITA-367 (3.89)
for all requests to amend their existing APOs. If all parties in these
segments of proceedings mutually agree to be bound by the new APO
regulations and procedures, the parties must file a joint agreement and
new applications for APO.
APO Sanctions
The Department is also amending its regulations concerning
sanctions for violations of APOs. The regulations governing the
imposition of sanctions for APO violations are set forth at 19 CFR Part
354. In the nine years since Part 354 was introduced, the Department
has investigated and resolved numerous allegations of violations of
APOs. Most charges have been settled, and none has resulted in a
hearing before a presiding official or a decision by the APO Sanctions
Board. Experience also has proven that, even if an individual has
technically violated the terms of an APO, it is not always appropriate
to impose a sanction. Rather, a warning may be appropriate in many
instances. The Department also has found that situations arise in which
the investigation can be shortened without limiting procedural rights.
Additionally, under current regulations, it is unduly cumbersome to
withdraw charges when the Department determines that they are not
warranted. Finally, the Department recognizes that an individual with
prior violations deserves to have his or her record cleared after a
period of time without further violations. Therefore, the Department is
amending Part 354 of its regulations to articulate a standard for
issuance of a warning of an APO violation and to address the other
situations described above.
The Department is amending the regulations to simplify the
procedures for investigating alleged violations and the imposition of
sanctions, establish criteria for abbreviating the investigation of an
alleged violation, include private letters of reprimand among the
sanctions available, and set a policy for determining when the
Department issues warnings instead of sanctions. Further, the
Department is revising the provisions dealing with settlement to make
them consistent with practice. The Department also is simplifying the
procedures for withdrawing charging letters. Finally, the amendments
add a sunset provision that codifies existing practice regarding the
rescission of charging letters.
[[Page 24392]]
Explanation of Particular Provisions
APO Procedures
The Department's AD regulations were contained in 19 CFR Part 353
and its CVD regulations were contained in 19 CFR Part 355. Parts 353
and 355 each contained separate provisions dealing with the treatment
of business proprietary information and APO procedures. The Department
consolidated the AD and CVD regulations and repealed existing Parts 353
and 355. See Antidumping Duties; Countervailing Duties; Final rule, 62
FR 27295 (May 19, 1997). We have drafted the regulations dealing with
APO procedures in light of this consolidation. Accordingly, these
regulations will be contained in 19 CFR Part 351, subpart C. More
specifically, with the exception of the definitional provisions of
Sec. 351.102, the APO procedures will be contained in 19 CFR 351.304,
305, and 306. The procedures for imposing sanctions for violation of a
protective order are contained in 19 CFR 354.
Definitions
Section 351.102 is a definitional section, based on previous 19 CFR
353.2 and 355.2. It was published separately with the May 19
regulations. Insofar as APO procedures are concerned, we added
definitions of two new terms, now contained in the administrative
protective order. Because these definitions apply to APO procedures, we
are discussing them here.
The first term, applicant, is defined as an individual
representative of an interested party that has applied for access to
business proprietary information under an APO. The second term,
``authorized applicant,'' is defined as an applicant that the Secretary
has authorized to receive business proprietary information under an
APO, and is a term borrowed from the practice of the U.S. International
Trade Commission (``ITC'').
One commenter noted that the definition of ``applicant'' contained
in the Proposed AD/CVD Procedural Regulations was inconsistent with the
description of that definition in the preamble to the February Notice.
This commenter also suggested that a definition of ``representative''
be added to the regulations.
We revised the definition of ``applicant'' to make it consistent
with the description of that term provided above. The term
``representative'' was defined in the model APO published with the
February Notice. We have revised that definition to refer to an
individual, enterprise or entity acting on behalf of an interested
party.
Administrative Protective Order Unit and Central Records Unit
Section 351.103 defines the responsibilities of the Central Records
Unit and the Administrative Protective Order Unit, both of which play a
role protecting business proprietary information. The APO Unit was
established with the reorganization of the Department that became
effective July 1, 1996. Under the reorganization, the APO function is
consolidated under the Director for Policy and Analysis, and is managed
by a Senior APO Specialist who leads the APO Unit. The Senior APO
Specialist is responsible for directing the Department's handling of
business proprietary information.
The Administrative Protective Order Unit and the Dockets Center of
the Central Records Unit have recently been relocated to shared space
in room 1870. Because of the proximity of the two offices, business
proprietary information released by the APO Unit to authorized
representatives is conducted through the Dockets Center. Because the
relocation of the Dockets Center occurred after the publication of the
AD/CVD procedural regulations, we are taking this opportunity to amend
Sec. 351.103 to reflect these changes. Pursuant to Presidential order,
security has been increased in Federal office buildings and delivery
couriers are no longer permitted access to the Herbert C. Hoover
Building (HCHB). Consequently, Import Administration has created the
Dockets Center in Room 1870. The Dockets Center is accessible directly
from the 15th Street courier's entrance to HCHB. Prior to being allowed
in the building at this entrance all packages are scanned by
Departmental security personnel. APO materials are picked up at this
entrance from the APO Unit.
Section 351.304 Establishing Business Proprietary Treatment of
Information.
Section 351.304 sets forth rules concerning the treatment of
business proprietary information in general, and provides persons with
the right to request that certain information be considered business
proprietary or be exempt from disclosure under APO.
Customer Names
One commenter noted that section 777(c)(1)(A) of the Tariff Act of
1930, as amended, (``Act'') protects customer names from disclosure
under APO in an investigation only until an order is published or the
investigation is suspended or terminated, and suggested that the
regulation should be revised to reflect this. We have not revised the
regulation. The statute does not require the Department to disclose
customer names under APO following publication of an order or following
suspension or termination of the investigation. If the Department's
final determination is challenged, parties may obtain access to
customer names under the terms of a judicial protective order. Absent
such litigation, we do not believe it necessary or appropriate to
require parties to disclose additional information under protective
order after an investigation has been completed, suspended or
terminated.
Identification of Business Proprietary Information
Paragraph (b) of Sec. 351.304 addresses the identification and
marking of business proprietary information in submissions to the
Department.
One commenter argued that the Department should clarify how the
requirement to mark business proprietary information applies to
materials in exhibits such as printouts, drawings, photographs,
excerpts from brochures and other similar materials. The commenter
pointed out that such materials are not always clearly identified as
business proprietary, leaving the recipient to refer to the public
version to determine whether any particular data are in fact claimed to
be confidential.
The Department agrees that all business proprietary information
should be marked in accordance with the regulations. This includes all
verification exhibits. It is in the interest of all parties to prevent
inadvertent APO violations that can occur when marking is incomplete or
inaccurate. We recognize that marking printouts and voluminous exhibits
presents challenges. Printouts may consist almost entirely of business
proprietary information, with public information limited to certain
headings or fields. In such cases, it may be easier for an authorized
applicant to distinguish between public and proprietary information by
reviewing the public version rather than searching for brackets in a
document that contains nearly all business proprietary information.
Moreover, because bracketing may be revised by a party within one day
of the date of filing (see below), authorized applicants are encouraged
to confirm their identification of public information by comparison to
the public version source in order to avoid an inadvertent release of
business proprietary information.
If a party objects to the submitting person's claim for business
proprietary
[[Page 24393]]
treatment, the objection must be submitted in writing. The APO Unit is
the point of contact for examining and resolving the issue whether
information that is claimed as proprietary meets the standards in
Sec. 351.105 of the AD/CVD procedural regulations that the Department
published separately on May 19, 1997.
Public Versions
Paragraph (c) of Sec. 351.304 concerns the public version of a
business proprietary submission, provides for a one-day lag rule (see
also Sec. 351.303(c)(2)), and addresses corrections to errors in
bracketing business proprietary information. We reiterate that the
Secretary will enforce vigorously the requirement for public summaries,
and will grant claims that summarization is impossible only in
exceptional circumstances. To assist in ensuring consistent enforcement
of the Department's requirements for public summarization of numerical
data and narrative portions of submissions, the APO Unit is the point
of contact for examining and resolving complaints about inadequate
public summaries.
One-Day Lag Rule
The one-day lag rule follows existing practice by permitting
parties to file a public version of a document containing business
proprietary information one business day after the due date of the
business proprietary version of the document. This practice is known as
the ``one-day lag'' rule. Under current practice, submitting persons
may correct the bracketing of information in the business proprietary
version up to the deadline for submission of the public version (i.e.,
they have one day in which to correct bracketing). The Department
proposed to slightly modify the one-day lag rule to require a party to
file the final business proprietary version of the document at the same
time as the submitting party files the public version of the document.
The specific filing requirements are contained in Sec. 351.303 of the
AD/CVD Procedural Regulations that the Department published separately
on May 19, 1997. Comments on this provision were addressed in those
regulations.
One commenter expressed concern regarding improper disclosure of
APO protected information and the Department's statement that non-
bracketed information will be treated as public information once
bracketing has become final. We believe, however, that the commenter
misunderstood the Department's statement. The statement only pertains
to a party's own business proprietary information contained in a
document it has submitted. The Department will always take and require
immediate corrective action when information subject to an APO has been
improperly disclosed and discovered in a reasonable amount of time.
Summarization of Numerical Data
One commenter argued that public summarization of numerical data
should not be required, because the ITC does not require it. Other
commenters requested that specific guidelines for summarization of
numerical data be included in the regulation. Some commenters requested
greater flexibility in ranging numbers that are very large or very
small.
As one commenter recognized, a public summary, which is addressed
in paragraph (c)(1), is required by section 777(b)(1)(B) of the Act and
Article 6.5.1 of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 (``AD Agreement''). Public
summarization of numerical data is crucial to the ability of parties to
participate in the Department's proceedings. Without adequate public
summarization, interested parties without APO access will not be able
to participate meaningfully in the Department's proceedings. The
Department, therefore, will continue to require summarization of
numerical data.
While there may be some benefits to consistent treatment of
business proprietary information between the Department and the ITC,
there are differences in each agency's mission that justify individual
practices. Summarization of company-specific numerical information at
the ITC is more difficult because the information concerns a company's
performance using ``macro'' numbers and projected data. Moreover, in
most cases, the ITC provides aggregate data where such information
would not reveal an individual company's business proprietary
information. It is this aggregate data, which is often available to the
public, which is most relevant to the ITC's analysis and
determinations. Information in the Department's proceedings, on the
other hand, is often transaction-specific, ``micro'' information. Such
information would be difficult to aggregate across companies and such
aggregate data would be of almost no relevance to the Department's
analysis and the public's understanding of that analysis. Therefore, it
is preferable to continue to require that such information be ranged or
indexed.
Omission of specific criteria for public summarization of numerical
data previously contained in Secs. 353.32(b)(1) and 355.32(b)(1) was an
oversight. We are including the criteria for adequate summarization in
Sec. 351.304(c)(1) of these regulations. The Department has always
allowed an exception to the public summarization requirement when it
does not protect business proprietary information from disclosure, such
as with very small or very large numbers. We will continue to permit
such exceptions on a case-by-case basis in accordance with the
requirements of Sec. 351.304(c)(1).
Summarization of Narrative Portions of Submissions
One commenter argued that requiring a public summary of the
narrative portion of a submission is a change in policy not required by
the Uruguay Round Agreements Act (URAA) and is too burdensome. The
commenter asserted that the proposed regulation will add hundreds of
hours and thousands of dollars to the costs of participating in these
cases. Finally, the commenter stated that the proposed regulation
appears to create a presumption that all business proprietary
information is public unless proven otherwise, which reverses agency
practice designed to protect business proprietary information against
disclosure.
The commenter is mistaken that the Department's regulation
constitutes a change in practice. The Department has consistently
required a public summary of the narrative portion of a submission
containing business proprietary information.
Laws affecting disclosure of information by the federal government
generally are pro-disclosure. The United States has the most
transparent antidumping and countervailing duty procedures in the
world. Protection of business proprietary information is a narrow
exception to the requirement for disclosure and the preference for
transparency. For these reasons, the regulations require parties to
demonstrate that business proprietary information should be withheld
from disclosure, rather than the reverse. There is a presumption that
business proprietary information can be publicly summarized to permit
meaningful participation by a party that does not have access to
business proprietary information under APO.
Summarization of Business Proprietary Information of Other Parties
Three commenters raised concerns whether Sec. 351.304(c)(1)
requires authorized applicants to create public summaries of business
proprietary information submitted by other parties.
[[Page 24394]]
It does not. The Department has never required authorized applicants to
publicly summarize the business proprietary information of another
party and the Department does not intend to change that practice. In
fact, Sec. 351.304 (c)(1) states that a submitter should not create a
public summary of business proprietary information of another person.
Nonconforming Submissions
Paragraph (d) of Sec. 351.304 deals with nonconforming submissions,
i.e., submissions that do not conform to the requirements of section
777(b) of the Act and paragraphs (a), (b), and (c) of Sec. 351.304.
One commenter expressed concern that this provision might be abused
by parties making unwarranted claims of a clear and compelling need to
withhold business proprietary information from disclosure under APO
merely to delay release of that information and thereby imperil the
ability of other parties to participate in the proceeding in a timely
fashion. Although we appreciate the concerns of the commenter, we do
not believe that revision of the regulation is necessary. In most
cases, the Department has been able to make determinations as to the
status of information in much less than 30 days, and we expect that to
continue to be the case. As written, the regulation provides greater
flexibility for those determinations which may require more time for
decision.
The Department does not believe that the regulation, as drafted,
will lead to significant abuse. The Department's current experience has
involved few situations of abuse. To the extent that baseless claims
for non-release of information do occur, the Department retains the
authority to deal with them expeditiously.
Another commenter proposed that the Department amend this
regulation to permit the Secretary to return any part of a submission
that does not meet the requirements of the regulations. We do not
agree. For the same reasons the Department revised the one-day lag rule
to require a new complete submission of a document that required
correction, we also will require a complete new submission of any
document returned because parts of it are defective.
Section 351.305 Access to Business Proprietary Information
Section 351.305 establishes procedures for obtaining business
proprietary information under APO, including a new procedure based on
the use of a single APO for each segment of a proceeding.
The Revised APO
Paragraph (a) of Sec. 351.305 sets forth a new procedure in which
the Secretary will place a single APO on the record for each segment of
an AD or CVD proceeding, within two days after a petition is filed, or
an investigation is self-initiated, or five days after the initiation
of any other segment. (``Segment of the proceeding'' is defined in
Sec. 351.102 as a portion of the proceeding that is reviewable under
section 516A of the Act.) All authorized applicants will be subject to
the terms of this single APO. This new procedure will streamline the
APO process dramatically, and will expedite the issuance of APOs and
the disclosure of information to authorized applicants. Commenters
strongly endorsed this new procedure, and agree it will streamline the
APO process and expedite the issuance of APOs and the disclosure of
information to authorized applicants.
APO Requirements
Paragraph (a) of Sec. 351.305 also sets forth the requirements that
are to be included in the APO and to which all authorized applicants
must adhere. The Department proposed to eliminate from the APO detailed
internal procedures that firms were required to follow to protect APO
information from unauthorized disclosure. In paragraph (a)(1), the
Department proposed to permit each applicant to establish its own
internal procedures. All commenters agreed with this proposal, and we
have adopted it in these final regulations.
Notification of Change of Facts
Paragraph (a)(2) of Sec. 351.305 requires an authorized applicant
to notify the Secretary of any changes in the facts asserted by the
authorized applicant in its APO application. Paragraph (a)(2) does not
require certification of these facts. Paragraph 6 of the proposed APO,
however, would have required the authorized applicant to provide, at
the conclusion of a segment of the proceeding, upon the departure of an
authorized applicant from a firm, or when an individual no longer will
have access to APO information, a certification that attests to the
individual's compliance with the terms under which such access is
granted. Two commenters questioned the necessity for such individual
certifications. They argued that the thrust of the Department's new
rules is to permit firms to develop their own internal procedures to
protect business proprietary information, rather than for the
Department to ``micro-manage'' APO issues. Thus, they asserted, firms
will have internal procedures to ensure that persons leaving a firm,
for example, destroy or return any documents containing business
proprietary information. They point out that under the procedure
proposed by the Department, applicants already sign an APO application
individually, and the additional certification is therefore
superfluous. Moreover, commenters argued, the Court of International
Trade's (CIT) judicial protective orders permit a single certification,
and there is no reason to follow two different procedures for appellate
and administrative proceedings.
The Department agrees. Paragraph (a)(2) continues to require a
party to notify the Department of any changes in the facts asserted by
an authorized applicant in its application, but we have deleted the
requirement for certification at the end of the proceeding segment in
paragraph 6 of the APO. Authorized applicants are required to notify
the Department of any possible violation of the APO; the additional
certification is redundant. The Department presumes all authorized
applicants are complying with the terms of the APO until we determine
through an investigation under Part 354 that a violation of an APO has
occurred. Thus we have retained the requirement that parties notify the
Department and other parties of changes, but have removed from
paragraph 6 of the APO the requirement that every individual certify
its compliance with the regulations at the close of the person's
participation under the APO.
Notification of Destruction of Business Proprietary Information
Paragraph (a)(4), now renumbered as paragraph (a)(3), of
Sec. 351.305 requires the destruction of business proprietary
information when a party is no longer entitled to it, normally at the
close of a segment of a proceeding. Paragraph 7 of the APO also
required an individual certification from each authorized applicant
that it complied with the terms of the APO. For the reasons stated
above, we agree this certification is unnecessary. We presume that an
authorized applicant will comply with the terms of the APO requiring
destruction of business proprietary information at a designated time.
We will continue to require, however, notification to the
Department of destruction of business proprietary information. Parties
will be able to keep certain business proprietary information for more
than one segment of a proceeding, and discipline in tracking and
destroying information is more
[[Page 24395]]
important than ever. Therefore the Department will continue to hold
parties accountable for timely destruction of material when no longer
authorized by the APO to have it.
One commenter suggested that the failure to return or destroy APO
material is a procedural issue and should not be viewed as constituting
a violation of the APO if not satisfied. We disagree. Until business
proprietary information is destroyed, there is a risk of disclosure.
The destruction of business proprietary information material is
important to prevent unauthorized disclosure. It is one of the few
specific requirements in the regulations. While the failure to return
or destroy may not result in actual disclosure of business proprietary
information, and in certain circumstances may only result in a warning,
it is clearly a violation of the regulations and the APO.
The Department proposed that an authorized applicant be required to
destroy business proprietary information that the applicant is not
authorized to retain within a thirty-day time period after the
expiration of the time for filing for a judicial or binational panel
review of the last segment for which the authorized applicant may
retain the information. Thirty days should cover most contingencies,
but the Department will be willing to grant extensions for good cause
shown. Commenters supported this proposal and we will incorporate it
into each APO, which will set specific deadlines on a case-by-case
basis.
Electronic Data
Paragraph 3 of the APO places one restriction on the use of
business proprietary information contained in electronic form; the
information can not be accessible by a modem. We are restricting access
to electronic information by modem, but not requiring any specific
technical restrictions, instead leaving the method to be used to the
individual authorized applicant. This proposal was supported by
commenters. Commenters suggested a revision of the language of the
paragraph to clarify this requirement, which we have incorporated into
paragraph 3 of the APO.
Independent Contractors
The definition of ``support staff'' contained in the APO permits
the use of independent contractors to perform photocopying and other
production tasks involving APO information, provided that the
independent contractors perform their work on the premises of the
authorized applicant (e.g., at the firm), and the independent
contractors work under the supervision of an authorized applicant.
Commenters requested a clarification that the Department also will
allow parties to use employees or subcontracted individuals (e.g.,
courier services) to pick up or deliver APO information released by the
Department, and to deliver APO information to other parties. One
commenter also requested a clarification that ``independent
contractors'' includes part-time employees. We agree that support staff
and independent contractors can be used for all delivery functions and
that ``independent contractors'' includes part-time employees.
In order to guard against unauthorized disclosure, however, the
Department will continue its current practice of releasing APO
information only if the employee or independent contractor presents a
picture ID and a letter of identification from the firm of the
authorized applicant that authorizes the Department to release the APO
information to that particular individual.
Remand Proceedings
The Department proposed that the APO permit access to new business
proprietary information submitted in the course of a remand during
litigation involving the segment of the proceeding in which the initial
APO was issued. Parties no longer will have to apply separately for
access under an APO during a remand proceeding. Commenters supported
this proposal. The APO issued in each proceeding will reflect this
practice.
APO Applications
Paragraph (b) of Sec. 351.305 deals with the APO application
process itself, including permitting parties to use two independent
representatives.
Multiple Authorized Applicants
Under current practice, the Department generally allows only one
representative of a party to have access to business proprietary
information under an APO. In response to requests from parties to
proceedings, the Department proposed that two independent
representatives of a party be allowed APO access, with one
representative being designated as the lead representative. We also
proposed granting APOs separately to non-legal representatives, who
otherwise qualify to receive an APO, only if they had a significant
practice before the Department. The purpose of this proposal was to
ensure that effective sanctions could be imposed to deter APO
violations. The Department will consider requests that more than two
independent representatives be designated as authorized applicants on a
case-by-case basis.
Commenters agreed with this proposal, and requested that the
Department clarify that the lead authorized applicant will not be
liable for APO infractions committed by a separately authorized
applicant. We agree. Authorized applicants are responsible for
violations committed by any person in the same firm, but not for
violations committed by an individual at another entity that applied
for APO access separately. The lead representative would not be
responsible for APO violations committed by the separately authorized
applicant.
Application for an APO
Paragraph (b)(2) of Sec. 351.305 establishes a ``short form''
application that applicants can generate from their own word-processing
equipment. An applicant must acknowledge that any discrepancies between
the application and the Department's APO placed on the record will be
interpreted in a manner consistent with the Department's APO. Parties
agreed with this proposal and we have adopted it in paragraph (b)(2).
APO Application Coverage
Paragraph (b)(2) of Sec. 351.305 also provides that an applicant
must apply to receive all business proprietary information on the
record of the particular segment of the proceeding in question. A party
no longer may apply to receive only selected parties' business
proprietary information. The purpose of this requirement is to
eliminate the need for parties to prepare separate APO versions of
submissions for each of the different parties involved in a proceeding
and to reduce the number of APO violations that occur through the
inadvertent service of a document containing business proprietary
information to parties not authorized to receive it. In order to avoid
forcing parties to receive submissions in which they have no interest,
however, a party may waive service of business proprietary information
it does not wish to have served on it by another party. Thus, for
example, Respondent A may waive its right to be served with a copy of
the business proprietary version of Respondent B's questionnaire
response. Nonetheless, if Respondent A receives any of respondent B's
proprietary information from any party by mistake, no APO violation
will have occurred. Commenters generally supported the proposal,
because it eases the burden on
[[Page 24396]]
submitters and reduces the likelihood of inadvertent APO violations.
One commenter strongly objected to the proposal as inconsistent
with section 777 of the Act and burdensome on respondents. The
commenter asserted that substitution of a waiver procedure for party-
specific submissions is inadequate because respondents are nonetheless
required to accept submissions by petitioners that contain the business
proprietary information of several parties, including business
proprietary information that the respondents may have had no reason to
request. It asserted that by requiring respondents' representatives to
accept from petitioners' representatives documents containing multi-
party business proprietary information, the Department is unnecessarily
shifting the burden and responsibility of complying with APO procedures
from petitioners to respondents. Furthermore, where counsel is served a
business proprietary document and then redacts only certain portions
designated confidential by the filing party before transmitting the
document to his client, there is no check on whether a proper redaction
has been made. Neither the Department nor other parties have access to,
or even knowledge of, the specially redacted version, and this
procedure will heighten the risk of inadvertent disclosure of business
proprietary information. Instead, the commenter argues, if the public
summaries prepared by parties meet Commerce guidelines, the information
contained in any public version of a filed document should be
sufficient to inform a party already knowledgeable of the proprietary
data represented by the public summary.
The Department recognizes that these rules place a new burden on a
representative to ensure that when it receives a submission with
business proprietary information from multiple parties, it takes steps
to ensure no business proprietary information of another party is
disclosed to its client. Each authorized applicant has pledged to do
this when he or she signs the application for access to business
proprietary information under an APO. The rules mitigate this
additional burden by requiring parties to clearly identify the person
to whom each item of business proprietary information pertains.
Although adequate public summaries are helpful, they are not a
substitute for a full discussion of a party's own business proprietary
information. Public summaries serve to assist a party's participation
where other parties' business proprietary information is involved.
Nothing in the statute prohibits these procedures. Section 777 of
the Act requires the Department to ``make all business proprietary
information presented to, or obtained by it, during a proceeding * * *
available to interested parties who are parties to the proceeding under
a protective order * * *.'' On balance, we believe the procedures
adopted will spread the burden for protecting business proprietary
information and reduce inadvertent disclosure of business proprietary
information.
Deadline for Application for APO Access
Paragraph (b)(3) of Sec. 351.305 concerns the deadline for applying
for access to business proprietary information under APO. In deciding
the question of APO application deadlines, the Department balances the
need to provide maximum access by parties to APO information with the
need to minimize the burden on the Department in processing APO
applications, as well as the burden on parties and the Department that
have to serve late applicants with APO information placed on the record
before a late APO is granted. We proposed in paragraph (b)(3) to
encourage parties to submit APO applications before the first
questionnaire response is filed, but to permit parties to submit
applications up to the date on which case briefs are due.
Two commenters requested that the Department have no deadline for
APO applications. They did not provide any reason why a representative
would need to have access to the entire record after the time case
briefs are filed. Under Sec. 351.309(b), which was published separately
with the May 19 regulations, written argument will not be accepted
after case or rebuttal briefs are filed unless requested by the
Secretary. A party can always provide a representative with the party's
own data, and represent the party before the Department during
disclosure of that party's calculations. Providing a new representative
with a record after the close of comments would be unduly burdensome
for the Department staff which has extremely tight deadlines for
issuing the final determination. A representative can obtain the entire
record under judicial protective order during litigation if necessary.
Therefore, we have incorporated the proposed deadline, the day case
briefs are due, into the regulations.
We also have taken into account the burden imposed on parties by
APO applications that are filed after major submissions have been made
by other parties to the proceeding. Under current rules, parties have
only two days in which to serve an authorized applicant that obtained
its APO late in the proceeding with APO information that already has
been placed on the record. Under the deadline set forth in paragraph
(b)(3), the burden on parties may increase. We therefore proposed that
parties have five days in which to serve late APO applicants. In
addition, we required that late applicants be required to pay the costs
associated with the additional production and service of business
proprietary submissions that were served on other parties earlier in
the proceeding. Commenters supported these proposals and they are
incorporated into Sec. 351.301, which was published separately.
The Department reemphasizes that it will not allow an APO
application filed later in the proceeding to serve as the basis for
extending any administrative deadline, such as a briefing or hearing
schedule.
Approval of the APO Application and the APO Service List
Paragraph (c) of Sec. 351.305 deals with the approval of an APO
application. The Department proposed to approve an application within
two days of its receipt in an investigation and within five days in
other AD and CVD proceedings, unless there is a question concerning the
eligibility of an applicant to receive access under APO. In that case,
the Secretary will decide whether to approve the application within 30
days of receipt of the application. We amended the regulation to
provide for a single five-day deadline to provide parties a reasonable
time to comment on applications in all instances.
Commenters generally supported the Department's proposal because it
will facilitate the timely completion of investigations and
administrative reviews by providing expedited access to business
proprietary information to all parties to a proceeding. They suggested
that the Department's regulations also indicate that similarly
expedited treatment will be provided to applications for amendments to
APOs. The Department considers an application for an amendment to be
subject to the same procedures as the original application.
Some commenters expressed concern that approving APO applications
so quickly may create problems. In many cases, the APO application will
be served by mail on other interested parties, and commenters were
concerned that the Department could approve the application before the
[[Page 24397]]
parties have an opportunity to comment on it. When the APO material is
already in the hands of an approved applicant who has filed for access
for additional individuals, commenters asserted it is imperative that
parties be informed of the existence of the amended application, and be
given time to react, before APO material is released to any additional
individuals. The problem is of special concern to commenters if the
application seeks to add in-house counsel to the APO.
Although the Department agrees that the concerns raised by these
commenters have merit, we must balance these concerns with the need of
applicants to receive APO material expeditiously. We note that the
Department rarely receives objections to applications to amend APOs.
However, in recognition of the concerns raised, we intend to approve
applications to amend the Department's APO service list to include an
additional authorized applicant at the end of the five-day period. If a
representative wishes to have its amendment approved before the five-
day deadline, it should submit its application with a statement that
all other parties to the proceeding have consented to the application.
Commenters proposed that if the APO applicant needs immediate
access, service on the other parties could be made by hand delivery or
overnight mail, by facsimile, or by E-mail. Alternatively, the
applicant could file the application as a ``consent motion''. If there
is no need for immediate access, commenters proposed that parties be
permitted to serve by mail and that Department approval be held for
five days to ensure that the other parties have had an opportunity to
respond. Commenters also proposed that the regulations also should
state that objections to applications must be filed within two days of
receipt of the application and served by hand on the applicant.
One commenter, on the other hand, was concerned that parties to a
case should not be able to delay release of proprietary documents
merely by the objection, on whatever grounds, to the eligibility of an
applicant to obtain information. Rather, the commenter proposed that
the Department enunciate certain grounds that might serve as the proper
basis for an objection, such as affiliation with the party in question,
prior violations of protective orders or other ethical rules, or a
potential conflict of interest that exists based on work done either
within the government or at another firm involving the same or a
similar matter. Commenters did not want parties to have the opportunity
to delay approval of applications by minor objections, such as an
objection to the number of applicants.
The Department recognizes that the current regulations permit a
party to hand-serve an APO application (or an application for an
amendment to the APO service list) on the Department, while serving the
parties by mail. The Department could approve an application before
parties even received notice that the application had been filed. We
are therefore revising Sec. 351.305(b)(2) to require parties to serve
an APO application (including applications for amendments) on the
Department and on the parties in the same manner, whether by hand or by
mail. We are also extending the deadline in Sec. 351.305(c) for
approving an APO application (including an application to amend the APO
service list) to five days from two for all segments of proceedings.
These procedures should provide expedited approval of APO access while
preserving the rights of parties to comment on APO applications.
Although the Department may approve an APO application on or before the
five-day deadline, a party objecting to an APO application may elect
not to serve its business proprietary information on the applicant to
which it is objecting until the Department has addressed the objection
and has made a decision whether to grant the applicant access to the
objecting party's proprietary information.
There are few bases on which a party can legitimately object to
granting an APO so long as the applicant meets the conditions
established in the APO application and APO. An objection based on the
number of applicants would generally be considered frivolous; the
Department does not interfere with a party's choice of representation
or staffing. The only area where Import Administration has the
authority to deny an individual the right to practice before it
involves a finding, pursuant to our very detailed APO violation
regulations, that a party has violated a protective order and that the
violation warrants the extreme sanction of a ban from practice before
Import Administration. An allegation in this area would require a
detailed investigation. The restriction on practice before the
Department because of an APO violation would be imposed through the APO
violation proceeding, not through an objection to an APO application.
Import Administration does not have authority to address the post-
employment restrictions contained in 18 U.S.C. 207. The authority to
interpret post-employment restriction resides with the Assistant
General Counsel for Administration at the Department of Commerce. Nor
does the Department have the authority to advise on the application of
state professional conduct rules to a party's practice before the
Department. Any allegations of violations of the rules of a particular
bar association must be raised with that organization.
Alternative Methods of APO Approval
In the October Notice, several commenters suggested alternative
methods of approving APOs, such as the creation of a pre-approved
roster of members of a representative's firm, or permitting a lead
signatory in a firm to grant access to the other professionals within
the firm. The Department did not adopt either alternative because there
may be facts peculiar to a particular AD or CVD proceeding or a segment
of a proceeding that render an otherwise eligible applicant ineligible,
and the roster approach would preclude a party from raising legitimate
objections to the approval of an APO application. Likewise, the lead
signatory approach would preclude parties from exercising their right
to object, for good cause, to the disclosure of APO information to a
particular individual.
Two commenters continued to support the roster system. One pointed
out that such a procedure would still allow Commerce to review the
individual eligibility of each applicant and would allow far greater
flexibility on the part of the participating firm. These commenters did
not address the points raised by the Department in opposing the
proposal, such as notice and certainty. As noted above, commenters
expressed concern that they have an advance opportunity to comment on
an APO application before access is granted. They were concerned that
the Department might approve an APO application before parties had had
a chance to review it because of the short two-day deadline the
Department proposed for approving an application. We are therefore not
adopting either alternative method of approving APO applications. The
maximum five-day deadline for approving an application should enable
parties to add representatives without undue delay.
Department Notification of APO Service List
If an application is approved, the Secretary will include the name
of the authorized applicant on an APO service list that the Department
will maintain for each segment of a proceeding. Paragraph (c) of
Sec. 351.305 provides that
[[Page 24398]]
the Secretary will use the most expeditious means available to provide
parties with the APO service list on the day the list is issued or
amended.
Commenters generally supported the proposal. While they supported a
flexible approach with respect to promulgating and updating the APO
service list, they also expressed concern with the lack of specificity
as to the form of notice to anticipate. Commenters were particularly
concerned with the use of the Internet to the extent the Department is
contemplating reliance on electronic mail, based on the uncertainty of
the timely receipt of information (particularly where the parties are
out of the office) or even whether the information would be received at
all. To the extent the Department elects to rely on any Internet or e-
mail notification, commenters urged the Department to also send a copy
of the notification by mail to the parties to ensure that actual
notification was received.
Other commenters stated that the preferred method is by facsimile.
They stated that most businesses, including law firms practicing before
the Department, have procedures to ensure that incoming facsimiles
rapidly come to the attention of the indicated recipient. Commenters
noted that these procedures are not necessarily in place with respect
to the Internet and transmission by mail involves at least two days of
delay.
At this time, the Department will fax every change in the APO
service list directly to each party on the service list for each
proceeding. In addition, until the Department is assured that parties
are routinely receiving notification of the APO service list by fax,
the Department will mail hard copies of the service to the lead
applicant. This will provide certainty and consistency necessary to
effectively monitor APO service lists. APO service lists will be
available to the public on Import Administration's home page on the
Internet as a public service. The Department will adapt these
procedures to advances in technology adopted by the trade bar in the
future to ensure it provides notice as efficiently as possible.
Section 351.306 Use of Business Proprietary Information.
Section 351.306 sets forth rules concerning the use of business
proprietary information.
Use of Business Proprietary Information by the Secretary
Paragraph (a) is based on existing Secs. 353.32(f) and 355.32(f).
One change is the reference in paragraph (a)(4) to the disclosure of
information to the U.S. Trade Representative under 19 U.S.C. 3571(i).
Section 3571(i) (section 281(i) of the URAA) deals with the enforcement
of U.S. rights under the World Trade Organization Agreement on
Subsidies and Countervailing Measures. Also, although the regulation
itself is little changed, we note that the URAA amended section
777(b)(1)(A)(i) of the Act to clarify that the Department may use
business proprietary information for the duration of an entire
proceeding (from initiation to termination or revocation), as opposed
to merely the particular segment of a proceeding for which information
was submitted.
Use of Business Proprietary Information by Parties
Section 777 of the Act permits the Department to use business
proprietary information for the duration of an entire proceeding, from
initiation to termination or revocation. Under the current regulations,
the Department limits the record of a segment of a proceeding to
information submitted during that particular segment of the proceeding.
19 CFR 353.34(a). The Department limits the use of business proprietary
information by representatives of parties to the segment of the
proceeding in which the information was submitted. 19 CFR
353.34(b)(3)(ii). Although the Department may have access to business
proprietary information from another segment of the proceeding, the
Department may not base a decision on business proprietary information
that is not on the record of the particular segment of the proceeding.
The URAA identifies three specific instances in which the
Department would be expected to use information from different segments
of proceedings or different proceedings: (1) Information from prior
segments may be used in a sunset or changed circumstances review of the
same proceeding (section 777(b)(1) of the Act); (2) business
proprietary information from a sunset or changed circumstances review
resulting in revocation may be used in an investigation on the same
merchandise from the same country initiated within two years of
revocation (section 777(b)(3) of the Act); and (3) information from a
terminated investigation may be used in a new investigation on the
subject merchandise from the same and another country within three
months of termination of the prior investigation (sections 704 and 734
of the Act).
Paragraph (b) of Sec. 351.306 deals with the use of business
proprietary information by parties from one segment of a proceeding to
another. In the February notice, the Department proposed to permit
parties to retain business proprietary information released under APO
for two segments of the proceeding subsequent to that in which the
information was placed on the record. Paragraph (b) provided that
normally an authorized applicant may use such information only in the
particular segment of the proceeding in which the information was
obtained. An authorized applicant could, we proposed, place business
proprietary information received in one segment of a proceeding on the
record of either of two subsequent consecutive segments (generally
administrative reviews under section 751(a)) if the information is
relevant to an issue in the subsequent segments.
We have modified this paragraph to give the Department greater
flexibility in determining how business proprietary information may be
used. Our intention at this time is to allow an authorized applicant to
retain business proprietary information obtained in one segment of a
proceeding for two subsequent consecutive administrative reviews and to
use such business proprietary information in those administrative
reviews or other segments of the proceeding initiated during that time.
This use of business proprietary information will be authorized by the
terms of the APOs.
Four commenters wanted to expand the policy by having essentially
unlimited access to proprietary information for the entire duration of
the proceeding and, in some cases, even across proceedings. These
commenters suggested that any changes should be applied to current
APOs, as well as future APOs. They argued that such broad ability to
use business proprietary information was consistent with the statute
and would best enable them to identify inconsistencies in submissions
from one segment of a proceeding to another.
Four commenters supported the proposed policy with certain
restrictions. These commenters urged the Department to prohibit
wholesale incorporation of business proprietary information from
another segment of the proceeding and, instead, require that any
business proprietary information submitted from another segment of the
proceeding be relevant to the segment in which it is submitted.
Additionally, some of these commenters indicated that a shorter period
of time (one
[[Page 24399]]
segment) would be sufficient to achieve the Department's goals.
Four commenters strongly opposed any change to current policy. They
argued that the limited changes to the statute cannot justify the
significant changes proposed in the regulations. This group argued that
statutory requirements and prior CIT decisions regarding the record for
review effectively prohibit the changes proposed by the Department.
This group also cited concerns that the broader ability to retain and
use business proprietary information would increase the likelihood of
disclosure of that information and thereby discourage parties from
participating in proceedings before the Department. The group contended
that these changes will also impose additional burdens on parties (to
monitor the use of their business proprietary information in subsequent
segments and to whom their business proprietary information is
released, and to maintain the ability to justify all differences in
their reported information from one segment to the next). The group
contended that this practice would also increase burdens on the
Department to document and verify the bases for any differences across
segments of proceedings.
We have not broadened the proposal to permit unlimited use of
business proprietary information across all segments of a proceeding,
or across all proceedings other than those specified in the statute.
There is no legal support for the request to utilize business
proprietary information across proceedings.
Nor do we agree with commenters totally opposing use of business
proprietary information in more than one segment. The statute and CIT
precedent do not prohibit the proposed changes. The proposed changes
would provide for inclusion of the information from another segment on
the record of the segment in question. The proposed changes were not
based on statutory changes made by the URAA, but, rather, rely on
authority which the Department has always possessed. We agree that
these changes will create some additional burdens on all parties to
monitor subsequent segments of proceedings to avoid release of their
business proprietary information to a party to whom they object. These
are rare occurrences, and we have attempted to minimize this burden
and, thereby, minimize the likelihood that these changes will cause
respondents to refuse to participate in the Department's proceedings
due to concerns about their business proprietary information. Any
additional burden on the Department will be minimized by the
Department's ability to reject submissions of irrelevant business
proprietary information from other segments.
We agree that wholesale incorporation of business proprietary
information from prior segments should be rejected unless absolutely
necessary. We also agree that the Department should reject business
proprietary information from another segment which is not relevant to
the ongoing segment. Such decisions, however, may be difficult to make
and may present additional bases for appeal to the CIT. Therefore, the
Department does not intend to make a decision on relevancy every time a
party submits information from a prior segment into the current
segment, but it reserves the right to do so in appropriate
circumstances. At the same time, in order to avoid imposing undue
burdens on the Department, we intend to consider such information only
to the extent that is relevant to issues raised by interested parties
or that the Department otherwise deems appropriate.
The Department expects that there will be a multitude of practical
problems that will have to be worked out over time and with experience
under these new procedures. Initially we will permit parties to retain
business proprietary information for two additional segments (generally
administrative reviews) after the segment in which the business
proprietary information was submitted. This is a reasonable compromise
between the long-held desires of petitioners to be able to address
perceived inconsistencies between segments, and respondents' concerns
that their business proprietary information not be distributed among
representatives and across segments for indeterminate periods. Once
business proprietary information is placed on the record of a
subsequent segment of the proceeding, it remains a permanent addition
to the later record, unless the Department rejects the information.
The Department believes that this new practice normally will be
used to move business proprietary information from an investigation or
administrative review to two subsequent consecutive administrative
reviews. The Department also intends to authorize the use of business
proprietary information submitted in an investigation or administrative
review in other segments, such as scope proceedings or changed
circumstances reviews, initiated during those two administrative
reviews. If the Department determines, as it gains experience, that it
is appropriate to modify this practice, it will do so by changing the
terms of the APOs.
Identifying Parties Submitting Business Proprietary Information
Paragraph (c) of Sec. 351.306 addresses identification of
submitters of business proprietary information in submissions
containing business proprietary information from multiple persons. The
Department is requiring that APO applicants be required to request
access to all business proprietary information submitted in a
particular segment of a proceeding. In addition, we proposed that in
the case of submissions, such as briefs, that include business
proprietary information of different parties, the submission must
identify each piece of business proprietary information included and
the party to which the information pertains. (For example, Information
Item #1 came from Respondent A, Information Item #2 came from
Respondent B, etc.) The purpose of this proposal is to enable parties
to submit a single business proprietary version of a submission that
may be served on all parties represented by authorized applicants,
instead of forcing parties to submit and serve different APO versions
for each of the parties involved in a proceeding. In the case of a
submission served on a party not represented by an authorized applicant
(a relatively rare event), the submitter still would have to prepare
and serve a separate submission containing only that party's business
proprietary information.
Three commenters supported this proposal. They agree it will reduce
the possibility of APO violations when documents contain business
proprietary information provided by more than one party. Commenters
further suggested that, when all business proprietary information in a
submission is obtained from a single party, the Department's
regulations permit the submitting party to identify the original
submitter of the business proprietary information only once, on the
title page of the submission. We agree and have incorporated this into
Sec. 351.306(c).
Commenters also suggested that the Department should clarify the
proposed rule by stating that only business proprietary information of
another party needs to be specifically identified by source. The
commenter proposed that any business proprietary information that is
bracketed in the submission should be assumed to be business
proprietary information belonging to the party submitting the document
unless otherwise identified as business proprietary information of
another party. The commenter pointed out that
[[Page 24400]]
without this clarification, submissions to the Department would become
cluttered with notations as to the original submitter of the business
proprietary information and it may become very difficult to read the
submission. We agree, and have incorporated this suggestion into
Sec. 351.306(c) of the regulations.
One commenter urged the Department to clarify what is meant by the
term ``identify contiguously with each item'' so that parties can adapt
their procedures accordingly. The commenter noted that particularly
troublesome would be documents containing multi-party information on a
single line. The commenter requested that the Department should clarify
whether the identifying markings are also required in public versions.
The term ``contiguous'' was used to require identification closely
enough with the item of business proprietary information so a party
could clearly and quickly identify the original submitter of the
business proprietary information. We do not want to be so specific that
parties lose flexibility to respond to different situations. Documents
can vary, and readability must not be sacrificed. In some situations, a
notation next to the item of business proprietary will best serve
everyone's interests. In a more complicated document, footnotes might
be better. Since the public version of a submission should be identical
with the business proprietary version except for the deletion of the
proprietary information, the public submission will contain the
identity of the original submitter of the proprietary information.
Some commenters objected to the Department's proposed exception
(Sec. 351.306(c)(2)) to the single-version business proprietary
information document rule where a party does not have a representative.
They argued that it undermined the benefits gained from not having to
file respondent-specific submissions and that adequate public summaries
would be adequate.
The Department believes that this requirement is necessary. A party
needs disclosure of another party's arguments against it to adequately
defend itself. To fail to do so would not provide sufficient
transparency to the proceeding.
Concern was expressed regarding the potential mismarking of
business proprietary information in a document, and the reliance
thereafter on the information mismarked by another party. The commenter
urged that the latter party's reliance on the mismarked information
should not constitute a breach of the protective order. Another
commenter took the opposite view. It suggested that if a party
mistakenly indicates the wrong original submitter of business
proprietary information in a submission, the party should only be
required to correct the mistake, and the mistake should not constitute
an APO violation in and of itself. The commenter further argued,
however, that if, as a result of a mistake, a party were to disclose
business proprietary information to another party not authorized to
receive it, that disclosure would constitute an APO violation under the
existing APO rules.
Only the party creating the submission from multiple parties'
business proprietary information knows with certainty the person that
originally submitted the business proprietary information. Therefore
the submitter must be responsible for the accuracy of the labeling.
This is the purpose of the proposal. Unless an authorized applicant
knows that an identification is incorrect, he or she should be entitled
to rely on the identification. Otherwise the requirement serves no
purpose. An unauthorized disclosure resulting from inaccurate labeling
that leads to an APO violation will be attributed to the person
labeling the original submitter of the business proprietary
information.
Another commenter opposed the proposal altogether, arguing that the
proposal is an attempt to shift costs and responsibility from
petitioner to respondent, causing respondent to lose time reviewing
petitioner's case brief in the five days that they have to prepare
rebuttal briefs under proposed Sec. 351.309(d). The commenter argued
that while the number of inadvertent APO violations will decrease for
petitioner's counsel, they will increase for respondent's counsel,
because respondent's counsel must now make sure petitioner's documents
do not include APO material that should not be released.
These proposed procedures formalize what has been the Department's
practice since 1992. Moreover, we believe that these proposals balance
the different interests of petitioners and respondents. Although there
are risks of inadvertent APO violations associated with any option, we
believe that the fact that all authorized applicants will have access
to the business proprietary information of all parties (whether or not
service is waived) should reduce significantly the number of
inadvertent disclosures. In this regard, the inadvertent service on an
authorized applicant of a submission containing information of a party
for which the applicant has waived service would not constitute an APO
violation.
Administrative Protective Order Sanction Procedures
Five parties commented on the proposed amendments to the APO
sanction procedures. All commenters supported the proposed changes.
Upon further reflection, the Department is amending its regulations
consistent with the proposed regulations. As explained below, the
Department also is making clerical revisions to use terms
``administrative protective order'' and ``business proprietary
information'' consistently throughout this part, and to conform the
regulations to changes made in the organization of the Department on
July 1, 1996.
Section 354.2 Definitions.
The definition section is revised to be consistent with the
definitions contained in the Department's proposed antidumping and
countervailing procedural regulations at 19 CFR 351.102. The
definitions of the terms ``administrative protective order'',
``Secretary'', ``segment of the proceeding'', and ``Senior APO
Specialist'' are added to Part 354 in Sec. 354.2.
The definition of ``director'' is revised to reflect the
reorganization of the Department that became effective July 1, 1996.
Under the reorganization, the APO function is consolidated under the
Director for Policy and Analysis, and is managed by a Senior APO
Specialist. The Senior APO Specialist is responsible for directing the
Department's handling of business proprietary information. The Senior
APO Specialist assists with investigations of alleged APO violations,
which streamlines the APO violation investigation process. A definition
of ``Senior APO Specialist'' is added in Sec. 354.2, and the definition
of ``director'' is revised to include the Senior APO Specialist. The
definition of director is also amended to conform the regulation to the
changes in office director positions made in the July 1, 1996
reorganization.
Section 354.5 Report of violation and investigation.
Paragraph (a)(1) is amended to require that all allegations of APO
violations be reported to either the Senior APO Specialist or the
Office of Chief Counsel for the Department. Under the current practice,
alleged violations are reported to the APO specialist in the Office of
Investigations or Office of Compliance, depending on where the alleged
violation occurred. The amendment conforms the regulation to the July
1, 1996 reorganization of the Department.
[[Page 24401]]
Paragraphs (d) (7) and (8) are combined and revised to reflect
changes in the Act and Department practice regarding the use of
business proprietary information in segments of proceedings other than
the one in which the information was originally submitted. These
changes are discussed above. The Department's procedural regulations
will now allow use of business proprietary information in more than one
segment of a proceeding or another proceeding in limited situations.
The segments of proceedings in which business proprietary information
may be used will be contained in the administrative protective order.
Paragraphs (d) (7) and (8) are combined and revised to reflect these
changes.
Classification
E.O. 12866
This rule has been determined to be not significant for purposes of
Executive Order 12866.
Paperwork Reduction Act
This rule does not contain a collection of information for purposes
of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et
seq.).
Regulatory Flexibility Act
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce has certified to the Chief Counsel for Advocacy
of the Small Business Administration that these amendments would not
have a significant economic impact on a substantial number of small
business entities because the rule that they would amend does not have
such an impact and, furthermore, the amendments would tend to simplify
the procedures pertaining to administration of APO sanctions. The
Deputy Under Secretary for International Trade is responsible for
regulations governing sanctions for violations of APOs. The Assistant
Secretary for Import Administration is responsible for the regulations
governing issuance and use of APOs.
List of Subjects in 19 CFR Parts 351 and 354
Business and industry, Foreign trade, Imports, Trade practices.
Dated: April 29, 1998.
Timothy J. Hauser,
Deputy Under Secretary for International Trade.
Dated: April 29, 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
For the reasons stated, 19 CFR chapter III is amended as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
1. The authority citation for part 351 continues to read as
follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303
note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538.
2. Section 351.103 is revised as follows:
Sec. 351.103 Central Records Unit and Administrative Protective Order
Unit.
(a) Import Administration's Central Records Unit maintains a Public
File Room in Room B-099 and a Dockets Center in Room 1870, U.S.
Department of Commerce, Pennsylvania Avenue and 14th Street, NW.,
Washington, D.C. 20230. The office hours of the Public File Room and
Dockets Center are between 8:30 a.m. and 5:00 p.m. on business days.
Among other things, the Central Records Unit is responsible for
maintaining an official and public record for each antidumping and
countervailing duty proceeding (see Sec. 351.104), the Subsidies
Library (see section 775(2) and section 777(a)(1) of the Act), and the
service list for each proceeding (see paragraph (c) of this section).
(b) Filing of documents with the Department. While persons are free
to provide Department officials with courtesy copies of documents, no
document will be considered as having been received by the Secretary
unless it is submitted to the Import Administration Dockets Center in
Room 1870 and is stamped with the date and time of receipt.
(c) Service list. The Central Records Unit will maintain and make
available a service list for each segment of a proceeding. Each
interested party that asks to be included on the service list for a
segment of a proceeding must designate a person to receive service of
documents filed in that segment. The service list for an application
for a scope ruling is described in Sec. 351.225(n).
(d) Import Administration's Administrative Protective Order Unit
(APO Unit) is located in Room 1870, U.S. Department of Commerce,
Pennsylvania Avenue and 14th Street, N.W., Washington, D.C. 20230. The
office hours of the APO Unit are between 8:30 a.m. and 5:00 p.m. on
business days. Among other things, the APO Unit is responsible for
issuing administrative protective orders (APOs), maintaining the APO
service list, releasing business proprietary information under APO, and
APO violation investigations. The APO Unit also is the contact point
for questions and concerns regarding claims for business proprietary
treatment of information and proper public versions of submissions
under Sec. 351.105 and Sec. 351.304.
3. Sections 351.304, 351.305 and 351.306 are added to subpart C to
read as follows:
Sec. 351.304 Establishing business proprietary treatment of
information.
(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,
[[Page 24402]]
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 Sec. 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 Sec. 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 Sec. 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.
Sec. 351.305 Access to business proprietary information.
(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
[[Page 24403]]
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.
Sec. 351.306 Use of business proprietary information.
(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.
PART 354 [AMENDED]
4-5. The authority citation for part 354 is revised to read as
follows:
Authority: 5 U.S.C. 301, and 19 U.S.C. 1677.
6. All references in part 354 to ``protective order'' are revised
to read ``administrative protective order'', all references to
``proprietary information'' are revised to read ``business proprietary
information'', and all references to ``appropriate Director'' are
revised to read ``Director''.
Sec. 354. 1 [Amended]
7. Section 354.1 is amended by removing the citations ``19 CFR
353.30 and 355.20'' and replacing them with ``19 CFR 351.306''.
8. Section 354.2 is revised as follows:
Sec. 354.2 Definitions.
For purposes of this part:
Administrative protective order (APO) means an administrative
protective order described in section 777(c)(1) of the Tariff Act of
1930, as amended; APO Sanctions Board means the Administrative
Protective Order Sanctions Board.
Business proprietary information means information the disclosure
of which the Secretary has decided is limited under 19 CFR 351.105, or
successor regulations;
Charged party means a person who is charged by the Deputy Under
Secretary with violating a protective order;
Chief Counsel means the Chief Counsel for Import Administration or
a designee;
Date of service means the day a document is deposited in the mail
or delivered in person;
Days means calendar days, except that a deadline which falls on a
weekend or holiday shall be extended to the next working day;
Department means the United States Department of Commerce;
Deputy Under Secretary means the Deputy Under Secretary for
International Trade or a designee;
Director means the Senior APO Specialist or an office director
under a Deputy Assistant Secretary, International Trade Administration,
or a designee;
Lesser included sanction means a sanction of the same type but of
more limited scope than the proposed sanction; thus a one-year bar on
representations before the International Trade Administration is a
lesser included sanction of a proposed seven-year bar;
Parties means the Department and the charged party or affected
party in an action under this part;
Presiding official means the person authorized to conduct hearings
in administrative proceedings or to rule on any motion or make any
determination under this part, who may be an Administrative Law Judge,
a Hearing Commissioner, or such other person who is not under the
supervision or
[[Page 24404]]
control of the Assistant Secretary for Import Administration, the
Deputy Under Secretary for International Trade, the Chief Counsel for
Import Administration, or a member of the APO Sanctions Board;
Proprietary information means information the disclosure of which
the Secretary has decided is limited under 19 CFR part 351 including
business or trade secrets; production costs; distribution costs; terms
of sale; prices of individual sales, likely sales, or offers; names of
customers, distributors, or suppliers; exact amounts of the gross net
subsidies received and used by a person; names of particular persons
from whom proprietary information was obtained; and any other business
information the release of which to the public would cause substantial
harm to the competitive position of the submitter;
Secretary means the Secretary of Commerce or a designee;
Segment of the proceeding means a portion of an antidumping or
countervailing duty proceeding that is reviewable under section 516A of
the Tariff Act of 1930, as amended.
Senior APO Specialist means the Department employee under the
Director for Policy and Analysis who leads the APO Unit and is
responsible for directing Import Administration's handling of business
proprietary information;
Under Secretary means the Under Secretary for International Trade
or a designee.
9. Section 354.3 is amended by revising paragraphs (a)(3), and
(a)(4), and by adding a new paragraph (a)(5), as follows:
Sec. 354.3 Sanctions.
(a) * * *
(3) Other appropriate administrative sanctions, including striking
from the record any information or argument submitted by, or on behalf
of, the violating party or the party represented by the violating
party; terminating any proceeding then in progress; or revoking any
order then in effect;
(4) Requiring the person to return material previously provided by
the Secretary and all other materials containing the business
proprietary information, such as briefs, notes, or charts based on any
such information received under an administrative protective order; and
(5) Issuing a private letter of reprimand.
* * * * *
10. Section 354.5 is amended by revising paragraphs (a), (b), (c)
and (d)(1), (d)(2), and (d)(7), and by removing paragraph (d)(8), and
redesignating paragraph (d)(9) as (d)(8), as follows:
Sec. 354.5 Report of violation and investigation.
(a) An employee of the Department who has information indicating
that the terms of an administrative protective order have been violated
will provide the information to the Senior APO Specialist or the Chief
Counsel.
(b) Upon receiving information which indicates that a person may
have violated the terms of an administrative protective order from an
employee of the Department or any other person, the director will
conduct an investigation concerning whether there was a violation of an
administrative protective order, and who was responsible for the
violation, if any. No director shall investigate an alleged violation
that arose out of a proceeding for which the director was responsible.
For the purposes of this part, the director will be supervised by the
Deputy Under Secretary for International Trade with guidance from the
Chief Counsel. The director will conduct an investigation only if the
information is received within 30 days after the alleged violation
occurred or, as determined by the director, could have been discovered
through the exercise of reasonable and ordinary care.
(c)(1) The director conducting the investigation will provide a
report of the investigation to the Deputy Under Secretary for
International Trade, after review by the Chief Counsel, no later than
90 days after receiving information concerning a violation if:
(i) The person alleged to have violated an administrative
protective order personally notified the Secretary and reported the
particulars surrounding the incident; and
(ii) The alleged violation did not result in any actual disclosure
of business proprietary information. Upon the director's request, and
if extraordinary circumstances exist, the Deputy Under Secretary for
International Trade may grant the director up to an additional 90 days
to conduct the investigation and submit the report.
(2) In all other cases, the director will provide a report of the
investigation to the Deputy Under Secretary for International Trade,
after review by the Chief Counsel, no later than 180 days after
receiving information concerning a violation. Upon the director's
request, and if extraordinary circumstances exist, the Deputy Under
Secretary for International Trade may grant the director up to an
additional 180 days to conduct the investigation and submit the report.
(d) * * *
(1) Disclosure of 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
Tariff Act of 1930, including disclosure to an employee of any other
United States Government agency or a member of Congress.
(2) Failure to follow the terms and conditions outlined in the
administrative protective order for safeguarding business proprietary
information.
* * * * *
(7) Use of business proprietary information submitted in one
segment of a proceeding in another segment of the same proceeding or in
another proceeding, except as authorized by the Tariff Act of 1930 or
by an administrative protective order.
* * * * *
11. Section 354.6 is revised as follows:
Sec. 354.6 Initiation of proceedings.
(a) In general. After an investigation and report by the director
under Sec. 354.5(c) and consultation with the Chief Counsel, the Deputy
Under Secretary for International Trade will determine whether there is
reasonable cause to believe that a person has violated an
administrative protective order. If the Deputy Under Secretary for
International Trade determines that there is reasonable cause, the
Deputy Under Secretary for International Trade also will determine
whether sanctions under paragraph (b) or a warning under paragraph (c)
is appropriate for the violation.
(b) Sanctions. In determining under paragraph (a) of this section
whether sanctions are appropriate, and, if so, what sanctions to
impose, the Deputy Under Secretary for International Trade will
consider the nature of the violation, the resulting harm, and other
relevant circumstances of the case. If the Deputy Under Secretary for
International Trade determines that sanctions are appropriate, the
Deputy Under Secretary for International Trade will initiate a
proceeding under this part by issuing a charging letter under
Sec. 354.7. The Deputy Under Secretary for International Trade will
determine whether to initiate a proceeding no later than 60 days after
receiving a report of the investigation.
(c) Warning. If the Deputy Under Secretary for International Trade
determines under paragraph (a) of this
[[Page 24405]]
section that a warning is appropriate, the Deputy Under Secretary will
issue a warning letter to the person believed to have violated an
administrative protective order. Sanctions are not appropriate and a
warning is appropriate if:
(1) The person took due care;
(2) The Secretary has not previously charged the person with
violating an administrative protective order;
(3) The violation did not result in any disclosure of the business
proprietary information or the Secretary is otherwise able to determine
that the violation caused no harm to the submitter of the information;
and
(4) The person cooperated fully in the investigation.
12. Section 354.7 is amended by revising paragraph (b), as follows:
Sec. 354.7 Charging letter.
* * * * *
(b) Settlement and amending the charging letter. The Deputy Under
Secretary for International Trade and a charged or affected party may
settle a charge brought under this part by mutual agreement at any time
after service of the charging letter; approval of the presiding
official or the administrative protective order Sanctions Board is not
necessary. The charged or affected party may request a hearing but at
the same time request that a presiding official not be appointed
pending settlement discussions. Settlement agreements may include
sanctions for purposes of Sec. 354.18. The Deputy Under Secretary for
International Trade may amend, supplement, or withdraw the charging
letter as follows:
(1) If there has been no request for a hearing, or if supporting
information has not been submitted under Sec. 354.13, the withdrawal
will not preclude future actions on the same alleged violation.
(2) If a hearing has been requested but no presiding official has
been appointed, withdrawal of the charging letter will preclude the
Deputy Under Secretary for International Trade from seeking sanctions
at a later date for the same alleged violation.
(3) The Deputy Under Secretary for International Trade may amend,
supplement or withdraw the charging letter at any time after the
appointment of a presiding official, if the presiding official
determines that the interests of justice would thereby be served. If
the presiding official so determines, the presiding official will also
determine whether the withdrawal will preclude the Deputy Under
Secretary for International Trade from seeking sanctions at a later
date for the same alleged violation.
* * * * *
13. Section 354.9 is amended by revising paragraph (b), as follows:
Sec. 354. 9 Request for a hearing.
(a) * * *
(b) Upon timely receipt of a request for a hearing, and unless the
party requesting a hearing requests that the Under Secretary not
appoint a presiding official, the Under Secretary will appoint a
presiding official to conduct the hearing and render an initial
decision.
Sec. 354.15 [Amended]
14. Section 354.15 is amended by removing paragraph (e).
Sec. 354.17 [Amended]
15. Section 354.17(b) is amended by removing the citations ``19 CFR
353.30 and Sec. 355.20'' and replacing them with ``19 CFR 351.305(c)''.
16. Section 354.18 is added to part 354, to read as follows:
Sec. 354.18 Public notice of sanctions.
If there is a final decision under Sec. 354.15 to impose sanctions,
or if a charging letter is settled under Sec. 354.7(b), notice of the
Secretary's decision or of the existence of a settlement will be
published in the Federal Register. If a final decision is reached, such
publication will be no sooner than 30 days after issuance of a final
decision or after a motion to reconsider has been denied, if such a
motion was filed. In addition, whenever the Deputy Under Secretary for
International Trade subjects a charged or affected party to a sanction
under Sec. 354.3(a)(1), the Deputy Under Secretary for International
Trade also will provide such information to the ethics panel or other
disciplinary body of the appropriate bar associations or other
professional associations and to any Federal agency likely to have an
interest in the matter. The Deputy Under Secretary for International
Trade will cooperate in any disciplinary actions by any association or
agency. Whenever the Deputy Under Secretary for International Trade
subjects a charged or affected party to a private letter of reprimand
under Sec. 354.3(a)(5), the Secretary will not make public the identity
of the violator, nor will the Secretary make public the specifics of
the violation in a manner that would reveal indirectly the identity of
the violator.
17. Section 354.19 is added to part 354, to read as follows:
Sec. 354.19 Sunset.
(a) If, after a period of three years from the date of issuance of
a warning letter, a final decision or settlement in which sanctions
were imposed, the charged or affected party has fully complied with the
terms of the sanctions and has not been found to have violated another
administrative protective order, the party may request in writing that
the Deputy Under Secretary for International Trade rescind the charging
letter. A request for rescission must include:
(1) A description of the actions taken during the preceding three
years in compliance with the terms of the sanctions; and
(2) A letter certifying that: the charged or affected party
complied with the terms of the sanctions; the charged or affected party
has not received another administrative protective order sanction
during the three-year period; and the charged or affected party is not
the subject of another investigation for a possible violation of an
administrative protective order.
(b) Subject to the Chief Counsel's confirmation that the charged or
affected party has complied with the terms set forth in paragraph (a)
of this section, the Deputy Under Secretary for International Trade
will rescind the charging letter within 30 days after receiving the
written request.
Appendix to 19 CFR Part 351, Subpart C
Note: The following appendix will not appear in the Code of
Federal Regulations: Application for Administrative Protective Order
in Antidumping or Countervailing Duty Proceeding, and Administrative
Protective Order.
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