E6-15552. Status of Investigation Into Charges of Violations of Administrative Protective Orders in Antidumping and Countervailing Duty Proceedings

AGENCY:

International Trade Administration, Department of Commerce.

ACTION:

Notice.

EFFECTIVE DATE:

September 19, 2006.

SUMMARY:

In recent months, the International Trade Administration has completed a number of investigations into charges that the terms of administrative protective orders issued in connection with antidumping and countervailing duty proceedings have been violated. The results of these investigations are summarized below.

FOR FURTHER INFORMATION CONTACT:

John McInerney, Chief Counsel for Import Administration, [phone].

SUPPLEMENTARY INFORMATION:

The International Trade Administration of the Department of Commerce (ITA) wishes to remind those members of the bar who appear before it in antidumping or countervailing duty proceedings of the extreme importance of protecting the confidentiality of business proprietary information obtained pursuant to an administrative protective order (APO) during the course of those proceedings. In order that the gravity with which ITA views violations of its APOs might be better appreciated, ITA is publishing the following report on fifteen recent findings that the provisions of ITA APOs have been violated. ITA is also publishing the following report of two recent findings that there was no reasonable cause to believe that the terms of an APO had been violated.

With respect to the investigations where ITA determined that the terms of an APO had been violated, five of the investigations consisted of cases where counsel filed a public version of a document and failed to redact business proprietary information originally submitted by another party.

In four of the investigations, documents containing business proprietary information were erroneously served on law firms not subject to the respective APOs. The documents were either returned or destroyed without being reviewed.

In one investigation, an employee of a law firm directed another employee to fax a document containing the business proprietary information of a party to the proceeding to the law firm's client, who was not subject to the APO. Upon receiving the faxed document, the client recognized the error, called the law firm, and destroyed the document before reviewing it.

In two investigations involving the same set of facts, a law firm withdrew from representing a party, and transferred its files from that proceeding to another law firm. When the second law firm opened the files, it found two proprietary documents from two unrelated proceedings. The second law firm was not subject to the APO of either of those two proceedings, and returned the documents without copying them or further disseminating them.

In one investigation, one law firm inadvertently attached two pages containing proprietary information to a public letter, and served that letter on another law firm. The first law firm discovered its mistake, and informed ITA before the letter could be placed in the public files. The second law firm returned the letter without copying it or further disseminating it.

One investigation involved a law firm that had access to a document due to its involvement in ongoing litigation concerning an administrative review completed several years earlier. The terms of the APO in that review permitted an authorized applicant to use information submitted in that review in two successive segments of the same proceeding. An administrative review of the same proceeding was currently pending before ITA; however, it was beyond the two successive segments as specified in the APO. An attorney from that law firm called the attention of ITA officials to the document from the earlier review, and urged those officials to place the document on the record of the current administrative review. ITA concluded that although the attorney did not place the document on the record of the current review, by calling the attention of ITA officials to this document, the attorney had improperly used the document, in violation of the terms of the APO.

In the final investigation, an authorized applicant had access to the financial statement of a company due to its involvement in an administrative review in one proceeding. Due to a request by the submitting company, ITA conferred on this document business proprietary treatment. The authorized applicant, however, urged ITA officials to place this financial statement on the record of an administrative review of a second, separate proceeding involving the same company. Although the financial statement itself was a public document, because ITA agreed to treat it as business proprietary information, all authorized applicants were obligated likewise to treat it as business proprietary information until ITA had decided proprietary treatment was unwarranted. ITA concluded that referring to a document in one proceeding to which the authorized applicant had access due to its involvement in another proceeding was a violation of the APO because ITA was treating that document as proprietary in the second proceeding.

In all of the cases, ITA found that the APO violations were inadvertent and that no significant harm was caused to the submitter of the information.

In each of these cases, the individuals involved were cautioned to observe the terms of the APO and the Department's regulations, and warned that any future violations could be treated more severely.

ITA has also determined in two investigations that reasonable cause did not exist to believe that the terms of an APO had been violated. In one case, a law firm alleged that another law firm had released business proprietary information when the second law firm submitted a document making a legal argument. ITA has concluded that based on the facts of this case, the second law firm did not disclose any business proprietary information in making its legal argument.

In the second investigation, an attorney filed an application for APO access in both an antidumping duty and a countervailing duty investigation involving the same product from the same country. On the APO applications, the attorney represented that the client was an interested party because it was an importer of subject merchandise. It was later discovered that the importer did import subject merchandise, but not from the country subject to the two investigations. The attorney then withdrew, and certified to the destruction of all APO materials received in the two investigations.

A party to the two investigations alleged that making a false statement on the APO application was a violation of the APO. ITA investigated this allegation, and concluded that while the attorney confirmed that the client imported subject merchandise, the attorney did not think to confirm that the client imported that merchandise from the particular country in question, as the attorney represented the same client in three other investigations involving the same merchandise, but from different countries. Although the statements in the two APO applications at issue that the client was an interested party were false, the attorney made these statement out of mere inadvertence, and not due to a reckless disregard for the truth, or an intention to deceive. Based on the facts of this case the required mental state did not exist to justify sanctions. ITA further concluded that the investigation did not reveal any evidence that any of the information obtained by the attorney under the APOs had been improperly disclosed.

Serious harm can result from inadvertent or other disclosure of proprietary information obtained under APO. ITA will continue to investigate vigorously allegations that the provisions of APOs have not faithfully been observed, and is prepared to impose sanctions commensurate with the nature of the violations, including letters of reprimand, denial of access to proprietary information, or debarment from practice before the ITA.

This notice is published pursuant to 19 CFR 354.18 (2004).

Dated: August 7, 2006.

John D. McInerney,

Chief Counsel, Import Administration.