[Federal Register Volume 60, Number 27 (Thursday, February 9, 1995)]
[Proposed Rules]
[Pages 7723-7728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3140]
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INTERNATIONAL TRADE COMMISSION
19 CFR Part 210
Notice of Proposed Rulemaking Concerning Post-Investigation
Retention and Use of Confidential Business Information From
Investigations on Unfair Practices in Import Trade
AGENCY: International Trade Commission.
ACTION: Notice of proposed rulemaking and request for comments.
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SUMMARY: The Commission proposes to amend two of its final rules for
investigations and related proceedings under section 337 of the Tariff
Act of 1930 (19 U.S.C. 1337) to codify a proposed new policy of
allowing counsel who are signatories to an administrative protective
order (APO) to retain certain categories of confidential business
information (CBI) from an investigation for prescribed periods and to
use that CBI during the retention period for certain limited
purposes.\1\
\1\Commissioners Rohr and Newquist dissent from the Commission
majority's decision to consider revising the final rules as
described in this notice. See infra n.9.
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The Commission hereby solicits written comments from interested
persons to aid the Commission in determining whether to adopt the
proposed rules set forth in this notice.
DATES: Comments will be considered if received on or before April 10,
1995.
ADDRESSES: A signed original and 18 copies of each set of comments,
along with a cover letter stating the nature of the commenter's
interest in the proposed rulemaking, should be submitted to Donna R.
Koehnke, Secretary, U.S. International Trade Commission, 500 E Street,
SW., Room 112, Washington, DC 20436.
FOR FURTHER INFORMATION CONTACT: P.N. Smithey, Esq., Office of the
General Counsel, U.S. International Trade Commission, telephone
202-205-3061. Hearing-impaired individuals can obtain information
concerning the proposed rulemaking by contacting the Commission's
TDD terminal at 202-205-1810.
SUPPLEMENTARY INFORMATION:
Background
On August 1, 1994, the Commission published final rules for 19 CFR
part 210 eventually to replace the interim rules currently found in 19
CFR parts 210 and 211.\2\ The interim rules in 19 CFR parts 210 and 211
(1994) apply to all pending investigations and related proceedings that
were instituted before September 1, 1994. The final rules, which went
into effect on August 31, 1994, and will be codified in 19 CFR part 210
in 1995, apply to all investigations and related proceedings instituted
on or after September 1, 1994.\3\ On January 1, 1995, certain final
rules were amended on an interim basis to implement the amendments to
section 337 contained in the Uruguay Round Agreements Act, Pub. L. No.
103-465, 108 Stat. 4809 (1994) (URAA).\4\
\2\See 59 FR 39020, Part II (Aug. 1, 1994).
\3\Id.
\4\See 59 FR 67622 (Dec. 30, 1994).
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Neither the interim nor the final Commission rules contain
provisions governing the retention of CBI by counsel who are
signatories to a section 337 APO. The Commission's traditional policy,
however, has been to issue [[Page 7724]] section 337 APOs which (1)
order the signatories to refrain from using CBI covered by the APO for
any purpose other than the investigation, and (2) require signatories
to destroy all CBI or return it to the suppliers after final
termination of the investigation, (i.e., exhaustion of the appellate
process), absent written consent from the suppliers to allow other uses
of the CBI or to retain the CBI for a longer period). More recently,
the Commission has allowed its administrative law judges (ALJs) to
issue, after prior input from the parties, APOs which deviated from
standard Commission practice by permitting outside counsel for the
parties to retain certain CBI beyond the exhaustion of any appeals.\5\
\5\See, e.g., Inv. No. 337-TA-334, Certain Condensers, Parts
Thereof, and Products Containing Same, Including Air Conditioners
for Automobiles, 58 FR 47286 (Sept. 8, 1993); Inv. No. 337-TA-331,
Certain Microcomputer Memory Controllers, Components Thereof, and
Products Containing Same, 58 FR 47284 (Sept. 8, 1993). The
Condensers APO permitted outside counsel for the complainant and the
respondents to retain the evidentiary record--including materials
containing CBI--until the expiration of any remedial order issued by
the Commission. The Memory Controllers APO permitted counsel to
retain all materials containing CBI until the expiration of any
remedial order issued in that case. Both APOs also allowed counsel
to retain for an indefinite period documents (including briefs and
working papers) that contained CBI and were created by the
Commission, the ALJ, or counsel.
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As a result of the policy issues raised by those cases, the
Commission published an advance notice of proposed rulemaking for 19
CFR part 210, on December 9, 1993.\6\ The notice stated that the
Commission was considering revising its rules for investigations and
related proceedings under section 337 to address two subjects: (1) A
prescribed policy of allowing counsel who are signatories to an APO to
retain CBI from a particular investigation after that investigation has
been finally terminated; and (2) the possible establishment and
operation of a Commission repository for CBI, which would be accessible
to counsel of record who signed the APO, in lieu of or in addition to
permitting post-investigation retention of CBI by such counsel.
\6\58 FR 64711 (Dec. 9, 1993).
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Comments Filed in Response to the Advance Notice of Proposed
Rulemaking
In response to the advance notice of proposed rulemaking, the
Commission received comments from the following organizations: (1) The
ITC Trial Lawyers Association (ITCTLA); (2) the Section on
International Law and Practice of the American Bar Association (ABA/
SLIP); and (3) the U.S. Patent and Trademark Office (PTO). The
Commission also received a joint submission from four bar groups--(1)
the International Law Section of the District of Columbia Bar, (2) the
ABA/SLIP, (3) the ITCTLA, and (4) the Customs and International Trade
Bar Association.
No commenters favored the establishment and operation of a
Commission repository in addition to or in lieu of permitting counsel
to retain CBI for a prescribed period. The comments in opposition to a
repository cited such factors as the cost to the taxpayers, the
administrative burden to the Commission, and the lack of corresponding
benefits to parties, the Commission, or the public at large.
The bar group commenters said that the rules should establish a
fixed policy on post-investigation retention of CBI. They also
indicated that the Commission's policy should be to permit such
retention for various periods according to the nature of the document
containing the CBI and the status of the investigation (or related
proceeding) to which the document pertains. The bar group commenters
also expressed the view that counsel should be permitted to retain all
materials containing CBI at least until the date that all appeals are
exhausted, since the information might be needed during the appeals and
any Commission proceedings resulting from the appeals.
The joint recommendations of the bar group commenters concerning
the retention of various categories of CBI were as follows:\7\
\7\The ITCTLA originally proposed shorter retention periods for
certain items than the table in this memorandum indicates. The
ITCTLA subsequently joined other bar groups in the filing of a joint
submission explicitly advocating longer retention periods. The
Commission thus assumes that the joint submission reflects the
ITCTLA's current position on the issues presented.
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1. All discovery materials--Until two years after all appeals are
exhausted. Thereafter, the materials would be returned to the supplier
or destroyed, with written certification to each supplier and the
Commission.
2. All CBI in the possession of expert witnesses--Until all appeals
are exhausted. Thereafter, the materials would be returned to the
supplier or destroyed, with written certification to each supplier and
the Commission.
3. The evidentiary record--Until two years after all appeals are
exhausted or all remedial orders have expired, whichever is later.
Thereafter, the materials are to be returned to the supplier or
destroyed, with written certification to each supplier and the
Commission.
4. Pleadings--Indefinitely.
5. Copies of confidential notices, orders, recommendations, and
opinions issued by an ALJ or the Commission--Indefinitely.
6. Working papers, briefs, and other documents created by counsel
containing information subject to an APO--Indefinitely.
The bar group commenters' joint recommendations on post-
investigation retention of specific categories of CBI made no
distinction between CBI submitted by a third party and that submitted
by party to the investigation. Moreover, the ITCTLA specifically argued
against such a distinction, noting that elimination of the injury
requirement as an element of a section 337 violation in intellectual-
property based cases has diminished the role of third-party CBI for the
most part, except in cases involving motions for temporary relief. The
ITCTLA also argued against the promulgation of a separate rule to cover
cases in which a third party objects to counsel's post-investigation
retention of the third party's CBI. In such cases, the ITCTLA argued,
the third party should seek, by negotiation with the parties or through
the ALJ, modification of the APO under which such retention is to be
permitted.
The PTO's comments in response to the advance notice of proposed
rulemaking consisted of advice concerning the length of time that CBI
should be entitled to confidential treatment. Specifically, the PTO
suggested that materials covered by an APO should be declassified and
made available for public inspection according to a declassification
schedule set forth in the Commission rules. The PTO suggested that the
declassification schedule be based on the age of the CBI contained in
the material, instead of how recently the material was submitted.
The Commission's Responses
The Commission does not agree with the PTO's comment that materials
covered by an APO should be declassified and made available for public
inspection according to a declassification schedule set forth in the
Commission rules based on the age of the CBI contained in the material.
The Commission notes that the age of CBI is a factor which may have a
bearing on the continuing validity of its confidential designation. The
Commission also is cognizant, however, that age may not be the only
factor. Moreover, section 337(n) and its legislative history evince a
clear Congressional intent that if business information is properly
designated confidential by the supplier and is treated accordingly by
the Commission, the Commission is not at liberty to
[[Page 7725]] release that information at a later date absent the
submitter's consent.\8\ The Commission thus believes that it would be
inappropriate to make unilateral determinations on declassification of
CBI without consulting the suppliers or to adopt a Commission rule that
would mandate such declassification.
\8\See, e.g., H.R. Rep. No. 40, 100th Cong., 1st Sess. at 161-
162 (1987); S. Rep. No. 71, 100th Cong., 1st Sess. at 133 (1987).
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The Commission also has decided against the establishment and
operation of a Commission repository in lieu of or in addition to
allowing post-investigation retention of CBI by counsel. The Commission
shares the bar group commenters' view that little would be gained from
creating such a repository and that having a CBI access system based on
a repository would further entangle the Commission in enforcing APOs
and would increase the burdens of handling CBI.
The Commission is considering revising the final part 210 rules, as
suggested by the bar group commenters, to establish a policy of
permitting the post-investigation retention and use of CBI by counsel.
The Commission notes, however, that for some categories of CBI, the bar
group commenters suggested, without explanation, retention periods that
were two years beyond exhaustion of the appeals process or expiration
of the remedial orders. The Commission notes also that some of the uses
which the bar group commenters have jointly or individually proposed
for CBI during the prescribed retention periods encompass uses that
appear to be outside of the limitations imposed by law.
As discussed in the next section of this notice, the Commission has
drafted proposed rule provisions that incorporate a retention schedule
with shorter deadlines for certain kinds of CBI than the deadlines
listed in the bar group commenters' joint submission. The Commission
also has drafted proposed rule provisions that limit the uses to which
CBI may be put during the prescribed retention periods. The Commission,
however, specifically invites bar associations and other interested
persons who favor the bar group commenters' proposed schedule to file
comments with the Commission on the following issues:
1. The justification for the extended retention periods (i.e., the
additional two years) on the bar group commenters' proposed schedule
for certain materials containing CBI; and
2. The use(s) to which the CBI in those materials would be put
during the extended periods.9
\9\ Commissioner Rohr and Commissioner Newquist dissent from the
majority's decision to consider adopting the proposed rules set
forth in this notice.
Commissioner Rohr believes that the Commission should adhere to
the traditional practice of issuing section 337 APOs which (1) order
the signatories to refrain from using CBI covered by the APO for any
purpose other than the investigation, and (2) require signatories to
destroy all CBI or return it to the suppliers after final
termination of the investigation, (i.e., exhaustion of the appellate
process), absent written consent from the suppliers to allow other
uses or a longer period). Commissioner Rohr also believes that the
procedures contained in the proposed rules represent an unacceptable
risk of unauthorized disclosure of the subject CBI.
In Commissioner Newquist's view, the Commission's rules should
provide that post-investigation use and retention of CBI shall be
determined by agreement of the parties, any non-party suppliers, and
the presiding ALJ in each investigation.
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Proposed Rule Changes
To codify the retention schedule, use restrictions, and other
requirements which the Commission proposes to adopt, the Commission
proposes to add new provisions to final rules 210.5 and 210.34, rather
than creating new rules. That approach eliminates the need to renumber
the existing final rules in part 210. The new provisions which the
Commission proposes to add to final rules 210.5 and 210.34 are
described below.
Final Rule 210.5
Final rule 210.5, entitled ``Confidential business information,''
is the Commission's general rule for CBI in investigations and related
proceedings under section 337. The Commission proposes to amend final
rule 210.5 by adding a new paragraph (f) which states that materials
containing CBI subject to an APO issued under final rule 210.34(a)
shall be retained, used, expurgated, returned to the supplier, or
destroyed as provided in final rule 210.34(e).
Final Rule 210.34
Final rule 210.34 is the general rule about APOs in section 337
investigations. The Commission proposes to amend final rule 210.34 by
adding paragraph (e).
Paragraph (e)(1). Proposed paragraph (e)(1) of final rule 210.34
incorporates the following retention schedule:
1. All discovery materials. Until all appeals are exhausted and
thereupon the materials would be subject to a return or destroy rule.
2. All CBI in the possession of expert witnesses. Same as for
discovery materials.
3. The evidentiary record. Until all appeals are exhausted or all
remedial orders have expired, whichever is later, and thereupon the
materials would be subject to a return or destroy rule.
4. Attorney work product. Indefinitely, but see paragraph 7 below
regarding third-party CBI. The Commission's APO enforcement
responsibility would be subject to a five-year sunset rule, however. In
general, the Commission would no longer be responsible for enforcing
APOs five years after the exhaustion of all appeals or the expiration
of all remedial orders, whichever is later. If certain information,
such as trade secrets, is still confidential, the supplier of the
information could request that the Commission continue to enforce the
APO even though the five-year period has expired. Such a request would
have to be made before the five-year period expires.
5. Pleadings. Same retention period and APO enforcement provisions
as attorney work product, but see paragraph 7 below regarding third-
party CBI.
6. Orders, notices, initial determinations, recommended
determinations, opinions, and other documents issued by an ALJ or the
Commission containing CBI. Same retention period and APO enforcement
provisions as attorney work product and pleadings, but see paragraph 7
below regarding third-party CBI.
7. Third-party CBI. Until all appeals are exhausted or all remedial
orders have expired, whichever is later. The third-party CBI would then
be subject to a return or destroy rule, even if the information is
contained in pleadings or work product, if the third-party suppliers so
requested at the time that they submit the information.
Proposed paragraph (e)(1) also imposes--
1. 30-day deadlines for the return, destruction, or expurgation of
CBI when the prescribed retention period expires, and
2. A requirement that written certification of such return,
destruction, or expurgation shall be provided to suppliers and the
Commission.
The Commission believes that these requirements (and the custodian
requirement set forth in proposed paragraph (e)(3) of final rule
210.34) will help ensure that APO signatories comply promptly with
their obligations to expurgate, return, or destroy CBI in accordance
with proposed paragraph (e)(1).
Proposed paragraphs (e)(1)(iv)-(vi) of final rule 210.34 impose a
60-day deadline for motions to extend the [[Page 7726]] Commission's
five-year APO enforcement period (after the exhaustion of all appeals
or the expiration of all remedial orders, whichever is later) with
respect to pleadings, documents issued by an ALJ or the Commission, and
attorney work product documents containing CBI. Sixty days should be
sufficient (1) to allow nonmoving parties to respond to the motion and
(2) to allow the Commission to decide the motion on or before the
expiration of the five-year period.
The Commission notes one potential problem with respect to applying
the aforesaid sunset provisions to attorney work product. Submitters of
CBI who want the Commission to extend its enforcement of the APO beyond
the five-year period are not likely to know what CBI is contained in
attorney work product such as a law firm's internal legal memoranda
concerning the investigation. The Commission also thinks it
understandable, however, that attorneys may want to retain their work
product from an investigation for future reference in matters involving
similar issues. The Commission therefore solicits comments on possible
solutions to this potential problem.
Paragraph (e)(2). Proposed paragraph (e)(2) of final rule 210.34
restricts the uses to which CBI may be put during the prescribed
retention periods. The bar groups who commented in response to the
Commission's advance notice of proposed rulemaking (and the
participants and commenters in the investigations that prompted this
rulemaking)10 urged the Commission to approve retention of CBI by
counsel for one or more of the uses and purposes enumerated below:
\10\Condensers and Memory Controllers (See supra n.5.)
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1. To provide legal advice and other legal services to clients in
connection with the following matters:
To comply with a remedial or other Commission order issued in
connection with the investigation or related proceeding;
To initiate--or to defend against--administrative or judicial
proceedings concerning enforcement, modification, or revocation of such
orders or advisory opinion proceedings; or
To enforce or avoid infringement of an intellectual property right
asserted in the investigation.
2. To reduce costs, save time, minimize duplication of effort, and
facilitate participation in the following kinds of proceedings:
Commission proceedings to enforce, modify, or revoke a remedial
order, a consent order, or other Commission order;
Commission advisory opinion proceedings;
U.S. Customs Service proceedings to enforce or monitor compliance
with an exclusion order;
Commission or Customs proceedings for the forfeiture of a bond
posted by a complainant or a respondent;
Civil actions involving some or all of the same parties and subject
matter as the investigation (with a view toward asserting res judicata
or collateral estoppel in some kinds of cases);
Civil actions against a section 337 complainant for the filing of
unwarranted section complaint; or
Civil actions for attorney malpractice in an investigation or a
related proceeding.
3. To have unrestricted use of legal research and nonconfidential
information in working papers, briefs, and other documents created by
counsel which contain CBI.
Although section 337(n)(1) and its 1987 legislative history
explicitly discuss the ``disclosure'' or ``release'' of CBI,11
there is an implicit restriction on the use of CBI (in the absence of
consent from the submitter(s)), which appears to bar some uses that the
current commenters and other interested persons have suggested--namely,
use of CBI in civil actions. In the absence of consent from the
submitter, section 337 (n)(1) prohibits disclosure of CBI to anyone
other than (1) persons granted access under a Commission APO and (2)
certain categories of Government employees listed in section 337(n)(2).
The categories in section 337(n)(2) previously were limited to
Commission, Customs Service, and other U.S. Government personnel who
are involved in the subject investigation, Presidential review of a
remedial order issued in that investigation, or the administration or
enforcement of an exclusion order issued in the case.12
\11\See 19 U.S.C. 1337(n)(1) and n.8 supra.
\12\See 19 U.S.C. 1337(n)(2) (1988).
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Amendments to section 337(n)(1) and title 28 of the United States
Code were promulgated in the URAA. Section 337(n) was amended to
broaden the categories of Government employees who may have access to
CBI.13 Title 28 of the United States Code was amended to include a
new section requiring the Commission to forward the administrative
records of section 337 investigations to district courts for use in
some, but not all, civil actions involving the same parties and subject
matter as the subject investigations.14 The URAA amendments thus
do not address most of the civil action uses of CBI advocated by the
commenters and other interested persons.
\13\See sec. 321(a)(7) of the URAA.
\14\Id. at sec. 321(b)(1)(A) regarding the new 28 U.S.C.
1659(b).
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Proposed paragraph (e)(2) of final rule 210.34 accordingly states
that CBI which is retained pursuant to paragraph (e)(1) of final rule
210.34 shall not be used during the prescribed retention period for any
purposes other than those relating to the subject investigation or a
related proceeding under section 337,15 except for additional uses
that are permitted by law (e.g., the new section of title 28) or
provided for in a written agreement with the supplier.
\15\As noted in final rule 210.3, the term ``related
proceedings'' includes sanction proceedings for the possible
issuance of sanctions that would not have a bearing on the
adjudication of the merits of a complaint or a motion under 19 CFR
part 210, bond forfeiture proceedings, proceedings to enforce,
modify, or revoke a remedial or consent order, or advisory opinion
proceedings. See 59 FR 39040-39041 (Aug. 1, 1994), as amended at 59
FR 67626 (Dec. 30, 1994) (to be codified at 19 CFR 210.3).
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Paragraph (e)(3). Proposed paragraph (e)(3) of final rule 210.34
states that each law firm whose attorneys are signatories to an APO in
an investigation or a related proceeding shall designate one attorney
signatory from the firm as the custodian of the CBI and the person
responsible for ensuring that the requirements of proposed paragraphs
(e)(1)-(e)(2) of final rule 210.34 are satisfied. It is not uncommon
for attorneys to change firms and for documents containing CBI to be
shipped around firms. The Commission's concern is not that the
documents are likely to be lost, but that the firms may lose sight of
the obligations imposed by the APO. Requiring the firm to have a
custodian will reduce the likelihood of that occurring.
The Commission is cognizant that there may come a time during the
prescribed retention period(s) when a law firm's custodian is no longer
willing or able to serve in that capacity. If that happens, the firm
always has the option of promptly returning or destroying the CBI.
However, if the firm wishes to continue to retain the CBI but to change
custodians, the questions are whether a change of custodianship should
be permitted and, if so, how the change should be effected.
Proposed paragraph (e)(3) final rule 210.34 currently does not
contain provisions governing the changing of custodians. The Commission
is considering whether to revise paragraph (e)(3), however, to include
such provisions. One option would be to [[Page 7727]] revise paragraph
(e)(3) to provide as follows:
1. If the firm wishes to continue to retain the CBI but to
change custodians, the proposed new custodian must be a attorney in
the firm who is already a signatory to the APO. The change is to be
effected by serving a notice on the parties, the appropriate third-
party suppliers (if any), and the Secretary.
2. If there are no lawyers left in the firm who are signatories
to the APO and the firm wishes to continue to retain the CBI but to
change custodians, the firm must file a motion with the Commission
and serve copies on the parties and third-party suppliers. The
motion must request APO signatory status for the proposed new
custodian as well as leave to designate that attorney as the firm's
new custodian. The motion will not be granted unless information
contained in the materials held by the firm is still entitled to
confidential treatment and the Commission still has a duty to
enforce the governing APO with respect to that information.
The Commission is particularly interested in receiving comments on
(1) whether it should revise paragraph (e)(3) of final rule 210.34 to
codify a procedure for changing custodians, and, (2) if so, whether
that procedure should consist of the steps enumerated above or should
entail different steps.
Paragraph (e)(4). Although proposed paragraph (e)(1) establishes
prescribed periods for post-investigation retention of CBI, the
Commission believes that parties and third-party suppliers should not
be precluded from negotiating time limits or other conditions that are
more strict than the maximums set by the Commission. The Commission
also believes, however, that the proposed rules should avoid imposing
unnecessary burdens on the Commission for monitoring APO compliance.
Proposed paragraph (e)(4) of final rule 210.34 accordingly states
that parties and third-party suppliers may agree to retention periods,
uses, custodial arrangements, or other conditions which differ from
those imposed by proposed paragraphs (e)(1)-(e)(3). Paragraph (e)(4)
goes on to say, however, that the Commission will not be responsible
for policing the retention, uses, custodial arrangements, and other
conditions relating to the subject CBI in accordance with such an
agreement. That policy is consistent with Commission precedent.16
\16\See, e.g., Inv. No. 337-TA-265, Certain Dental Prophylaxis
Methods, Equipment, and Components Thereof, Initial Determination at
5-6 (Jan. 22, 1988), unreviewed by the Commission, 53 FR 6709 (Mar.
2, 1988); Certain Doxorubicin and Preparations Containing Same, Inv.
No. 337-TA-300, Commission Memorandum Opinion at 7-8, (May 31,
1991); Electric Power Tools, Battery Cartridges, and Battery
Chargers, Commission Memorandum Opinion (July 2, 1991) at 3-4.
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Paragraph (e)(4) further provides that when agreements are entered
to retention periods, uses, custodial arrangements, or other conditions
which differ from those imposed by proposed paragraphs (e)(1)-(e)(3), a
copy of the agreement must be filed with the Commission or with the
presiding ALJ (as the case may be). One purpose of this filing
requirement is to give the Commission or the ALJ notice as to which of
the APO provisions have been superceded by the agreement. Another
purpose is to avoid placing the Commission or the ALJ in the position
of having to adjudicate whether in fact an agreement was entered, if a
dispute over that issue should arise at a later date.
PART 210--ADJUDICATIVE PROCEDURES
1. The authority citation for part 210 will continue to read as
follows:
Authority: 19 U.S.C. 1333, 1335, and 1337.
2. For the reasons set forth in the preamble, the Commission
proposes to amend Sec. 210.5 by adding a new paragraph (f) which reads
as follows:
Sec. 210.5 Confidential business information.
* * * * *
(f) Disposition of confidential business information. Materials
containing confidential business information that are subject to a
protective order issued under Sec. 210.34(a) of this part shall be
retained, used, expurgated, returned to the supplier, or destroyed as
provided in Sec. 210.34(e).
3. For the reasons set forth in the preamble, the Commission
proposes to amend Sec. 210.34 by adding paragraph (e) which reads as
follows:
Sec. 210.34 Protective orders.
* * * * *
(e) Disposition of confidential information. (1) Unless the
Commission or an administrative law judge orders or a written agreement
between parties and suppliers states otherwise, confidential
information acquired pursuant to a protective order issued under
paragraph (a) of this section shall be expurgated, returned to the
supplier, or destroyed as provided below.
(i) All discovery materials containing confidential information may
be retained until all appeals are exhausted. Within 30 days thereafter,
the materials shall be returned to the supplier or destroyed and
written certification of such return or destruction shall be provided
to each supplier and the Commission.
(ii) All materials in the possession of expert witnesses that
contain confidential information may be retained until all appeals are
exhausted. Within 30 days thereafter, the materials shall be returned
to the supplier or destroyed and written certification of such return
or destruction shall be provided to the supplier and the Commission.
(iii) All materials on the evidentiary record that contain
confidential information may be retained until all appeals are
exhausted or all remedial orders issued in the investigation or a
related proceeding have expired, whichever is later. Within 30 days
thereafter, the materials shall be returned to the supplier or
destroyed and written certification of such return or destruction shall
be provided to each supplier and the Commission.
(iv) Except as provided in paragraph (e)(1)(viii) of this section,
all pleadings containing confidential information may be retained
indefinitely. Notwithstanding such retention, the Commission shall not
be responsible for enforcing the governing protective order with
respect to the pleadings for more than five years after the exhaustion
of all appeals or the expiration of all remedial orders, whichever is
later. If information in the pleadings will still be confidential after
the five-year period has expired, the supplier of the information may
file a motion to have the Commission extend its enforcement of the
protective order with respect to the pleadings beyond the prescribed
five-year period. Such motions must be filed at least 60 days before
the five-year period expires.
(v) Except as provided in paragraph (e)(1)(viii) of this section,
all notices, orders, initial determinations, recommended
determinations, opinions, and other documents issued by an
administrative law judge or the Commission that contain confidential
information may be retained indefinitely. Notwithstanding such
retention, the Commission shall not be responsible for enforcing the
governing protective order with respect to the aforesaid materials for
more than five years after the exhaustion of all appeals or the
expiration of all remedial orders, whichever is later. If information
in the materials will still be confidential after the five-year period
has expired, the supplier of the information may file a motion to have
the Commission extend its enforcement of the protective order with
respect to the materials beyond the prescribed five-year period. Such
[[Page 7728]] motions must be filed at least 60 days before the five-
year period expires.
(vi) Except as provided in paragraph (e)(1)(viii) of this section,
all attorney work product containing confidential information may be
retained indefinitely. Notwithstanding such retention, the Commission
shall not be responsible for enforcing the governing protective order
with respect to the work product for more than five years after the
exhaustion of all appeals or the expiration of all remedial orders,
whichever is later. If information that may be contained in the work
product will still be confidential after the five-year period has
expired, the supplier of the information may file a motion to have the
Commission extend its enforcement of the protective order with respect
to the work product beyond the prescribed five-year period. Such
motions must be filed at least 60 days before the five-year period
expires.
(vii) All confidential information supplied by third parties may be
retained until all appeals are exhausted or all remedial orders have
expired, whichever is later. If the third party's information appears
in a document other than a pleading, a document issued by an
administrative law judge or the Commission, or a document constituting
attorney work product, the document shall be returned to the supplier
or destroyed, and written certification of such return or destruction
shall be provided to each supplier and the Commission within 30 days
after all appeals are exhausted or all remedial orders have expired,
whichever is later. If the third party's information appears in a
pleading, a document issued by an administrative law judge or the
Commission, or a document constituting attorney work product, the
document may be retained indefinitely in accordance with paragraph
(e)(1)(iv), (e)(1)(v), or (e)(1)(vi) of this section. However, the
third party may request that its information be expurgated from the
document pursuant to paragraph (e)(1)(viii).
(viii) If the third-party supplier so requests at the time that its
confidential information is supplied and if the third-party supplier's
confidential information is contained in pleadings, documents issued by
an administrative law judge or the Commission, or attorney work
product, within 30 days after all appeals are exhausted or all remedial
orders have expired, whichever is later, any law firm in possession of
such pleadings, documents, or work product shall expurgate the third-
party supplier's confidential information from the pleadings,
documents, or work product and provide written certification of the
expurgation to the third-party supplier and the Commission.
(2) Except as required by law or as provided in a written agreement
with the supplier, the confidential information contained in the
materials enumerated in paragraph (e)(1) of this section shall not be
used during the retention periods specified in paragraph (e)(1) of this
section for any purposes other than those relating to the subject
investigation or a related proceeding under this part.
(3) On or before the commencement of the retention periods
specified in paragraph (e)(1) of this section, each law firm whose
attorneys are signatories to a protective order in an investigation or
a related proceeding under this part shall designate one attorney
signatory from the firm as the custodian of the information and the
person responsible for ensuring that the requirements of paragraphs
(e)(1)-(e)(2) of this section are satisfied. Notice of the designation
shall be served on the parties, the appropriate third-party suppliers
(if any) and the Secretary.
(4) Parties and suppliers may agree to retention time limits, uses,
custodial arrangements, or other conditions that differ from those set
forth in paragraphs (e)(1)-(e)(3) of this section. When such an
agreement is reached, a copy must be filed with the Commission or the
presiding administrative law judge (as the case may be). Neither the
Commission nor the administrative law judge shall be responsible,
however, for policing the retention, uses, custodial arrangements, and
other conditions relating to the subject confidential information in
accordance with the agreement.
Issued: February 3, 1995.
By Order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 95-3140 Filed 2-8-95; 8:45 am]
BILLING CODE 7020-02-P
