[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31511]
[Federal Register: December 28, 1994]
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INTERNATIONAL TRADE COMMISSION
19 CFR Parts 201 and 207
Rules of General Application; Investigations of Whether Injury to
Domestic Industries Results From Imports Sold at Less Than Fair Value
or From Subsidized Exports to the United States
AGENCY: U.S. International Trade Commission.
ACTION: Notice of final rulemaking.
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SUMMARY: The Commission is amending the rules to address concerns which
have arisen relating to Commission practice. The amendments provide, in
particular, for changes relating to sanctions and other actions in
response to administrative protective order (APO) breaches, the
procedures for conducting APO breach investigations, the filing of
prehearing briefs, closed sessions of Commission hearings in title VII
and other investigations, and the procedures for considering requests
for exemption from disclosure under APO of business proprietary
information in title VII investigations.
EFFECTIVE DATE: January 27, 1995.
FOR FURTHER INFORMATION CONTACT:
Paul R. Bardos, Esq., Office of the General Counsel, U.S. International
Trade Commission, telephone 202-205-3102. Hearing-impaired persons are
advised that information on the matter can be obtained by contacting
the Commission's TDD terminal on 202-225-1810.
SUPPLEMENTARY INFORMATION: Section 335 of the Tariff Act of 1930 (19
U.S.C. 1335) authorizes the Commission to adopt such reasonable
procedures and rules and regulations as it deems necessary to carry out
its functions and duties.
Commission rules ordinarily are promulgated in accordance with the
rulemaking provisions of section 553 of the Administrative Procedure
Act (5 U.S.C. 551 et seq.) (APA), which entails the following steps:
(1) publication of a notice of proposed rulemaking; (2) solicitation of
public comment on the proposed rules; (3) Commission review of such
comments prior to developing final rules; and (4) publication of the
final rules thirty days prior to their effective date. See 5 U.S.C.
553. Notice of proposed rulemaking was published in the Federal
Register of April 15, 1993 (58 Fed. Reg. 19,638) and interested persons
were given until May 17, 1993, to submit comments. Comments were
received from the Customs and International Trade Bar Association
(CITBA); Adduci, Mastriani, Schaumberg & Schill (AMS&S); Grunfeld,
Desiderio, Lebowitz & Silverman (GDL&B); Stewart & Stewart (S&S); and
Columbia Impex Corp.
On April 21, 1994, the Commission published an advance notice of
proposed rulemaking (59 FR 18982) concerning Parts 201 and 207. The
rulemaking proceeding of which the present notice is a part is distinct
from that effort.
The Commission has determined that these rules amendments do not
meet the criteria described in section 3(f) of Executive Order 12866,
Sep. 30, 1993 (58 F.R. 51735 (Oct. 4, 1993)) and do not constitute a
significant regulatory action for the purposes of the EO. Moreover, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 601 note), the
Commission hereby certifies pursuant to 5 U.S.C. 605(b) that the
amendments set forth in this notice are not likely to have a
significant economic impact on a substantial number of small business
entities. This is because the rules amendments constitute merely
clarifications and streamlining of the procedures of the Commission.
Explanation of the Amendments to 19 CFR Parts 201 and 207
Section 201.13 and 207.23
Sections 201.13 and 207.23 are amended as described in the notice
of proposed rulemaking to modify the procedure for closing to the
public a portion of Commission hearings to permit the discussion of
confidential or proprietary information.
CITBA commented that it understood that the closed sessions are
also intended to apply to the conduct of staff conferences, since
section 207.15, governing those conferences, incorporates by reference
the procedures in section 201.13. CITBA suggested that the Commission
consider shortening the period for requesting a closed session in a
preliminary conference, in view of the short time period in preliminary
title VII investigations. CITBA suggested that three days would be
appropriate. CITBA also suggested that, as a cosmetic change to improve
clarity, the Commission should make the provisions governing closed
sessions of hearings separate subsections, rather than including them
within subsection (a) of rules 201.13 and 207.23. S&S expressed general
support for the closed session amendment, but stated a concern that
increasingly large closed portions would make hearings less
understandable to clients and reduce their opportunity to respond.
The Commission agrees with CITBA that the provisions for closing
hearing should be applied to conferences in preliminary title VII
investigations, with a shorter time period as suggested by CITBA. The
final version of rule 201.13 incorporates that change. The Commission
has also adopted CITBA's proposed cosmetic change. The final version of
the rules establishes separate subsections of rules 201.13 and 207.23
providing for closed sessions.
Section 207.7(a)(3)(ii)
Rule 207.7(a)(3)(ii) is amended to clarify the definition of
``competitive decisionmaking.'' CITBA and AMS&S recommended including
examples or additional guidelines on the factual circumstances
constituting ``competitive decision making.'' AMS&S also suggested that
the Commission clarify whether ``involvement'' includes past, present,
or future continuing relationships. The Commission has adopted the
suggestion of AMS&S. The Commission finds it inappropriate to put
examples or guidelines in the rules, in order to avoid limiting the
Commission's flexibility in assessing specific factual situations to
determine whether access to BPI by in-house counsel is appropriate.
However, the Commission is willing to give parties additional guidance
on this issue by providing the following examples in this preamble.
In A Hirsh, Inc. v. United States, 11 CIT 208, 657 F. Supp. 1297
(1987), during judicial review of a Commission title VII determination,
the U.S. Court of International Trade (CIT) denied the request of an
in-house counsel for access to the BPI in the Commission's
investigation record. During the Commission's investigation, this
individual, the petitioner's general counsel and chief legal officer,
had not had access to BPI, and the petitioner had been represented by
outside counsel. The CIT concluded that the interest in guaranteeing a
high degree of confidentiality in the information outweighed the
individual's need for access, particularly since petitioner was
represented by outside counsel. The court noted, among other
circumstances, that petitioner was a family-owned and -operated
company, and that the individual himself had been empowered to act as
president in the absence or disability of the company president, his
father. The court also noted that the individual was an officer of the
company, and had familial ties with the company's operating officers,
who included his father and brother, suggesting a lack of isolation
from the commercial activities of the company. Although the case did
not directly involve a Commission decision on whether to grant access
to BPI to in-house counsel, it illustrates the sort of factors that
might prompt denial of access to BPI.
With respect to a Commission determination on the status of in-
house counsel in a title VII investigation, the U.S. Court of Appeals
for the Federal Circuit affirmed the Commission's decision to grant
access to BPI to an in-house counsel. The Commission had granted access
based on the individual's certification that, in his position as
general counsel for the respondent company, he was not involved in
competitive decision-making. The individual had provided the Commission
with a description of his duties as general counsel, senior vice
president, and secretary. Those duties included supervising the
company's legal staff, instituting and defending lawsuits on behalf of
the company, preparing contracts, and handling securities and labor
matters. He stated that he was not involved in decisions of pricing and
the technical design of products. In a further submission to the
Commission, he stated that he reviewed securities filings, employee
benefit plans and stock purchase plans, kept the minutes of the Board
of Directors, attended staff meetings where the results of the
company's operations and financial reports were reviewed, attended
meetings where the current state of affairs of retail outlets was
examined, but that at none of these meetings were issues of pricing or
product design discussed. Petitioners in the investigation sought an
injunction against the grant of access. The CIT granted an injunction
denying the individual access, finding that his responsibilities
constituted involvement in competitive decisionmaking, but the Federal
Circuit reversed. Matsushita Electric Industrial Co., Ltd. v. United
States, 14 CIT 674, 746 F. Supp. 1103, 1106 (1990), rev'd,, 929 F.2d
1577 (1990).
Section 207.7(b)(10) and (d)
Paragraphs (b)(10) and (d) of section 207.7 are amended to specify
that the Commission may take actions other than sanctions in response
to APO breaches. AMS&S recommended that the Commission provide examples
of ``other actions'' that would fall within the scope of the provision.
The final version of the rule specifies that a ``warning letter'' is
one of the possible actions the Commission may take. The rule also
makes clear, however, that the one example is not exclusive. The
Commission may take other actions as it determines to be appropriate
even if they are not listed in the rule. Paragraph (d) of section 207.7
is further amended to reflect Commission practice by specifying that
available sanctions include public and private letters of reprimand.
Section 207.7(e)
Section 207.7(e) is amended to establish a deadline for commencing
APO breach investigations. Further, it had been proposed to amend
section 207.7(e) to streamline the process of investigating alleged
breaches of APOs by replacing with a one-step procedure the existing
two-step process, whereby an alleged breacher is first asked for views
on whether a breach occurred and is only asked for views on mitigating
circumstances and the appropriate sanction after a finding of breach
has been made.
CITBA expressed concern at the proposed single-step procedure.
CITBA commented that the proposed procedure may, in some cases,
significantly diminish a party's right to have a reasonable opportunity
to present its arguments on the three issues of whether a breach
occurred, whether mitigating circumstances exist, and what sanction if
any is appropriate. CITBA suggested that where there are serious
factual questions concerning whether the alleged breach actually
occurred, a party may not be in a position to present the strongest
possible case on mitigation and sanctions in the same response that
addresses the alleged breach. Moreover, CITBA commented that where it
can be established that the breach did not occur, it would be an
unnecessary burden to require submission of comments on mitigation and
sanctions. CITBA proposed that the single-step procedure should be
available as an alternative, at the option of the accused party, to the
existing procedure.
CITBA also proposed that the Commission establish time limits for
the phases of a breach investigation, paralleling existing Commerce
procedures. CITBA commented that the two year period (following all
appeals, remands, and subsequent appeals) allowed for commencement of a
breach investigation may be too long in some cases, prejudicing a
party's ability to mitigate harm and defend him- or herself. On the
other hand, CITBA suggested that two years may be insufficient in cases
of intentional breach, where discovery of the breach is difficult.
CITBA suggested that the Commission should adopt time limits similar to
those employed by Commerce, limiting the period for commencing a breach
investigation to 30 days after the alleged violation occurred, or could
have been discovered through the exercise of reasonable and ordinary
care, as determined by the Commission.
CITBA also suggested that the Commission adopt a time limit for
issuance of a charging letter, as Commerce has done. Finally, CITBA
proposed that it would be useful for the Commission to identify
deadlines for the various stages of a breach investigation. CITBA
suggested Commerce's procedures as examples for consideration.
AMS&S expressed concern with the two year time limit, noting that
appeals of Commission determinations can take several years to reach a
final conclusion, during which time a party's memory of actions
involving an alleged breach dims, making defense against a charge of
alleged breach of an APO an onerous burden. AMS&S noted that the
Commission's rules require return or destruction of material released
under APO within 60 days of publication of a final determination,
unless judicial review is commenced. If the determination is appealed,
a judicial protective order (JPO) is usually entered, which may contain
different provisions from the Commission's APO. AMS&S suggested that
actions allowed under the JPO may be alleged to violate the APO. AMS&S
noted that it may be argued that once a JPO issues, the Commission no
longer has jurisdiction over the parties to consider and sanction
breaches of the APO occurring during the appellate process.
AMS&S also expressed concern over the one-step procedure
investigation proposed in the rules. AMS&S suggested that this
procedure could deny a party a reasonable opportunity to present views
about whether the alleged breach actually occurred, requiring
submission of potentially contradictory arguments concerning whether
the breach occurred, mitigating circumstances, and appropriate
sanctions, prior to a determination that there was a breach. AMS&S
suggested that a two-step procedure addressing the questions of breach
and sanctions separately would be preferable.
S&S expressed concern over the proposed two year time limit for
investigating breaches. S&S commented that such a long period is
prejudicial to the accused party's ability to defend him- or herself,
creates uncertainty, and is unnecessary to protect the confidentiality
of information. S&S suggested that the Commission conform its practice
to Commerce practice, as discussed above under CITBA's comments.
Moreover, S&S took issue with the one-step inquiry, opining that the
new procedure would jeopardize the accused person's defense, and
proposed that the new procedure be made available as an option that the
accused could choose.
S&S also noted that the proposed language suggests that the
Commission may investigate breaches occurring during the pendency of
judicial review. S&S assumed this was unintentional, noting that JPOs
generally cover BPI during the appellate process. S&S suggested that
the Commission may wish to clarify that it does not view its authority
as extending to sanctioning breaches of JPOs, or allow a period for
comment on this issue.
CITBA and S&S both suggested that the Commission address in a
future notice and request for comments the agency's APO practice in
general.
In view of the comments received on the point, the Commission has
determined not to institute the one-step process set out in the
proposed rules. However, as it has in the past and as reflected in the
amended version of the rule, the Commission may conclude a proceeding
in one step if it finds that a breach has occurred but that under the
circumstances no further investigation is warranted.
The Commission is sympathetic to the concerns expressed by the
commenters concerning the time limit for commencing investigations of
alleged APO breaches. Accordingly, that deadline is shortened from the
time limit set in the proposed rules. A breach investigation is to be
commenced no later than sixty days after the later of the occurrence of
the alleged breach (or the date on which the alleged breach could have
been discovered through the exercise of reasonable and ordinary care)
or the end of the underlying antidumping or countervailing duty
investigation. If a breach is alleged to occur during a preliminary or
final investigation, the time limit is sixty days after the end of that
investigation. If a breach is alleged to occur after such an
investigation, for example during remand proceedings, an investigation
into the alleged breach would need to be commenced sixty days after the
alleged breach occurred or could have been discovered.
The deadline is intended to provide the Commission sufficient time
to commence an investigation into an alleged breached while minimizing
any harm to the defense a person might mount in a breach inquiry begun
so long after the event that memories have dimmed. The time limit
allows for the completion of the underlying investigation so that the
Commission need not conduct both that investigation and a breach
investigation at the same time, and allows an additional sixty days for
the Commission to resolve any matters preliminary to the breach
investigation, such as the issue of whether the information in question
is business proprietary.
The Commission finds that it would be neither appropriate nor
necessary to establish time limits on the various phases of a breach
investigation by rule. Specific time limits in the rules could restrict
the Commission's ability to seek additional information concerning an
alleged breach if deemed necessary. Moreover, the press of other
Commission business may hamper compliance with such time limits,
necessitating Commission action to extend the deadlines. However, it
remains the Commission's intention to expeditiously process APO
violation investigations.
The Commission also finds that it would be inappropriate to state
that in all instances the Commission will not investigate an alleged
APO breach after a JPO has been entered. In some circumstances, the
Commission may need to take action even though a JPO is in place.
Section 207.7 (f) and (g)
Paragraphs (f)(2) and (g) of section 207.7 are amended to improve
the procedure for requesting exemption from disclosure of business
proprietary information under APO.
CITBA generally agreed with the proposed procedures for exemption
from disclosure under APO. CITBA expressed concern, however, that the
proposed rule does not adequately explain how the procedure for seeking
exemption from disclosure coordinates with time limits for filing
briefs. CITBA proposed that the rule expressly require that exemption
be sought sufficiently in advance that the request may be acted upon in
time for the party to prepare and file its brief in a timely manner.
CITBA also noted that the rule does not clarify how much time the
Secretary may need to act on the request, merely that she will
``promptly notify'' the requestor of the disposition of the request. As
a cosmetic change, CITBA also proposed an alternative arrangement of
section 207.7(g), with specific subsections dealing sequentially with
the procedure. AMS&S and S&S supported the Commission's proposed
procedure for requesting exemption from disclosure under APO and
service.
The Commission is sympathetic to CITBA's desire for clearer
guidelines on timing of requests for exemption prior to filing and the
Secretary's response time, but considers that a ``pre-clearance''
procedure would be unworkable in view of the already short time limits
for filing most party submissions in title VII investigations. To
shorten them even further by, in effect, requiring parties to file
early in order to obtain exemption from disclosure under APO would in
the Commission's view work a substantial hardship on the parties and
limit their ability to fully present their arguments. A provision is
being added to the final rules indicating that requests for exemption
from disclosure under APO should be filed two business days prior to
the deadline for filing the document in which the information is
proposed to be included, although no strict requirement to that effect
is imposed.
The Commission is not imposing a strict time limit for the
Secretary's decision on granting the request, but it is the
Commission's policy that such requests take precedence over other, more
routine matters, and should be expedited so as to be decided within two
business days.
The final version of section 207.7(g) largely reflects CITBA's
suggested cosmetic changes. Paragraph (f)(1) is amended to make a
technical correction to remove a discrepancy between section 207.7 and
207.3, and indicates no change in Commission practice.
Section 207.22
Section 207.22 is amended to require the filing of prehearing
briefs four business days prior to the hearing. CITBA suggested that
the clause ``The prehearing brief should present a party's case in
brief'' sounds tautological, and that the word ``concisely'' replace
the phrase ``in brief.'' The Commission has made that change in the
final version of the rules. The Commission has also determined to
require the filing of prehearing briefs only of interested parties who
are parties to the investigation, i.e., those parties with standing to
challenge Commission determinations in court. Other persons may but are
not required to file prehearing statements.
Section 207.23(b)
Section 207.23(b) was proposed to be amended to require the filing
of witness statements two business days prior to the hearing. GDL&S
expressed concern with the proposed change requiring, rather than
permitting, filing of witness statements. GDL&S commented that, given
the logistics of travel, and the need to prepare witness statements
face to face, rather than by long-distance communication, this
requirement will impose substantial hardships on foreign witnesses,
particularly from the Far East. GDL&S suggested that the requirement
will dissuade witnesses from testifying, will make participation much
more costly, and will tend to diminish, rather than enhance, the
quality of evidence presented. GDL&S urged the Commission to reconsider
this proposed change. The Commission has determined to leave the
existing rule on witness statements unchanged.
List of Subjects in 19 CFR Parts 201 and 207
Administrative practice and procedure, investigations, imports.
19 CFR Parts 201 and 207 are amended as follows:
PART 201--[AMENDED]
1. The authority citation for part 201 continues to read as
follows:
Authority: Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335),
and sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless
otherwise noted.
2. Paragraph (m) of section 201.13 is added to read as follows:
Sec. 201.13 Conduct of nonadjudicative hearings.
* * * * *
(m) Closed sessions. Upon a request filed by a party to the
investigation no later than seven (7) days prior to the date of the
hearing (or three (3) days prior to the date of a conference conducted
under Sec. 207.15 of this chapter) that identifies the subjects to be
discussed, specifies the amount of time requested, and justifies the
need for a closed session with respect to each subject to be discussed,
the Commission (or the Director, as defined in Sec. 207.2(c) of this
chapter, for a conference under Sec. 207.15 of this chapter) may close
a portion of a hearing (or conference under section 207.15 of this
chapter) held in any investigation in order to allow such party to
address confidential business information, as defined in Sec. 201.6,
during the course of its presentation. In addition, during each hearing
held in an investigation conducted under section 202 of the Trade Act ,
as amended, or in an investigation under title VII of the Tariff Act as
provided in Sec. 207.23 of this chapter, following the public
presentation of the petitioner(s) and that of each panel of
respondents, the Commission will, if it deems it appropriate, close the
hearing in order to allow Commissioners to question parties and/or
their representatives concerning matters involving confidential
business information.
PART 207--[AMENDED]
3. The authority citation for part 207 continues to read as
follows:
Authority: 19 U.S.C. 1303, 1335, 1671-1677k, and 2482, unless
otherwise noted.
4. Paragraphs (a)(3)(ii), (b)(10), (d), the heading for paragraph
(e), (e)(1), (f)(1), (f)(2), and (g) of Sec. 207.7 are revised to read
as follows:
Sec. 207.7 Limited disclosure of certain business proprietary
information under administrative protection order.
* * * * *
(a) * * *
(3) Authorized applicant.
* * * * *
(ii) In addition, an authorized applicant must not be involved in
competitive decisionmaking for an interested party which is a party to
the investigation. Involvement in ``competitive decisionmaking''
includes past, present, or likely future activities, associations, and
relationships with an interested party which is a party to the
investigation that involve the prospective authorized applicant's
advise or participation in any of such party's decisions made in light
of similar or corresponding information about a competitor (pricing,
product design, etc.).
* * * * *
(b) Administrative protection order.
* * * * *
(10) Acknowledge that breach of the administrative protective order
may subject the authorized applicant to such sanctions or other actions
as the Commission deems appropriate.
* * * * *
(d) Commission responses to a breach of administrative protective
order. A breach of an administrative protective order may subject an
offender to:
(1) Disbarment from practice in any capacity before the Commission
along with such person's partners, associates, employer, and employees,
for up to seven years following publication of a determination that the
order has been breached;
(2) Referral to the United States Attorney;
(3) In the case of an attorney, accountant, or other professional,
referral to the ethics panel of the appropriate professional
association;
(4) Such other administrative sanctions as the Commission
determines to be appropriate, including public release of or striking
from the record any information or briefs submitted by, or on behalf
of, the offender or the party represented by the offender, denial of
further access to business proprietary information in the current or
any future investigations before the Commission, and issuance of a
public or private letter of reprimand; and
(5) Such other actions, including but not limited to, a warning
letter, as the Commission determines to be appropriate.
* * * * *
(e) Breach investigation procedure. (1) The Commission shall
determine whether any person has violated an administrative protective
order, and may impose sanctions or other actions in accordance with
paragraph (d) of this section. At any time within sixty (60) days of
the later of the date on which the alleged violation occurred or, as
determined by the Commission, could have been discovered through the
exercise of reasonable and ordinary care, or the completion of an
investigation conducted under subpart B or C of this part, the
Commission may commence an investigation of any breach of an
administrative protective order alleged to have occurred at any time
during the pendency of the investigation, including all appeals,
remands, and subsequent appeals. Whenever the Commission has reason to
believe that a person may have breached an administrative protective
order issued pursuant to this section, the Secretary shall issue a
letter informing such person that the Commission has reason to believe
a breach has occurred and that the person has a reasonable opportunity
to present his views on whether a breach has occurred. If subsequently
the Commission determines that a breach has occurred and that further
investigation is warranted, the Secretary shall issue a letter
informing such person of that determination and that the person has a
reasonable opportunity to present his views on whether mitigating
circumstances exist and on the appropriate sanction to be imposed, but
no longer on whether a breach has occurred. Once such person has been
afforded a reasonable opportunity to present his views, the Commission
shall determine what sanction if any to impose.
* * * * *
(f) Service. (1) Any party filing written submissions which include
business proprietary information to the Commission during an
investigation shall at the same time serve complete copies of such
submissions upon all authorized applicants specified on the list
established by the Secretary pursuant to paragraph (a)(4) of this
section, and, except as provided in Sec. 207.3, a nonbusiness
proprietary version on all other parties. All such submissions must be
accompanied by a certificate attesting that complete copies of the
submission have been properly served. In the event that a submission is
filed before the Secretary's list is established, the document need not
be accompanied by a certificate of service, but the submission shall be
served within two (2) days of the establishment of the list and a
certificate of service shall then be filed.
(2) A party may seek an exemption from the service requirement of
paragraph (f)(1) of this section for particular business proprietary
information by filing a request for exemption from disclosure in
accordance with paragraph (g) of this section. The Secretary shall
promptly respond to the request. If a request is granted, the Secretary
shall accept the information into the record. The party shall file
three versions of the submission containing the information in
accordance with paragraph (g) of this section, and serve the submission
in accordance with the requirements of Sec. 207.3(b) and paragraph
(f)(1) of this section, with the specific information as to which
exemption from disclosure under administrative protective order has
been granted redacted from the copies served. If a request is denied,
the copy of the information lodged with the Secretary shall promptly be
returned to the requester.
* * * * *
(g) Exemption from disclosure. (1) In general. Any person may
request exemption from the disclosure of business proprietary
information under administrative protective order, whether the person
desires to include such information in a petition filed under
Sec. 207.10, or any other submission to the Commission during the
course of an investigation. Such a request shall only be granted if the
Secretary finds that such information is privileged information,
classified information, or specific information of a type for which
there is a clear and compelling need to withhold from disclosure.
(2) Request for exemption. A request for exemption from disclosure
must be filed with the Secretary in writing with the reasons therefor.
At the same time as the request is filed, one copy of the business
proprietary information in question must be lodged with the Secretary
solely for the purpose of obtaining a determination as to the request.
The business proprietary information for which exemption from
disclosure is sought shall remain the property of the requester, and
shall not become or be incorporated into any agency record until such
time as the request is granted. A request should, when possible, be
filed two business days prior to the deadline, if any, for filing the
document in which the information for which exemption from disclosure
is sought is proposed to be included. The Secretary shall promptly
notify the requester as to whether the request has been approved or
denied.
(3) Procedure if request is approved. If the request is approved,
the person shall file three versions of the submission containing the
business proprietary information in question. One version shall contain
all business proprietary information, bracketed in accordance with
Sec. 207.3(c), with the specific information as to which exemption from
disclosure was granted enclosed in double brackets. This version shall
have the following warning marked on every page: ``BPI exempted from
disclosure under APO enclosed in double brackets.'' The other two
versions shall conform to and be filed in accordance with the
requirements of Sec. 207.3, except that the specific information as to
which exemption from disclosure was granted shall be redacted from
those versions of the submission.
(4) Procedure if request is denied. If the request is denied, the
copy of the information lodged with the Secretary shall promptly be
returned to the requester.
5. Section 207.22 is revised to read as follows:
Sec. 207.22 Prehearing brief.
Each party who is an interested party shall submit to the
Commission, no later than four (4) business days prior to the date of
the hearings specified in the notice of investigation, a prehearing
brief. Prehearing briefs shall be signed and shall include a table of
contents. The prehearing brief should present a party's case concisely
and shall, to the extent possible, refer to the record and include
information and arguments which the party believes relevant to the
subject matter of the Commission's determination under section 303,
705(b) or 735(b) of the Act. Any person not an interested party may
submit a brief written statement of information pertinent to the
investigation within the time specified for filing of prehearing
briefs.
6. In Sec. 207.23, paragraphs (a) and (b) are revised and paragraph
(d) is added to read as follows:
Sec. 207.23 Hearing.
(a) In general. The Commission shall hold a hearing concerning an
investigation before making a final determination under section 303,
705(b) of 735(b) of the Act.
(b) Procedures. Any hearing shall be conducted after notice
published in the Federal Register. The hearing shall not be subject to
the provisions of 5 U.S.C. chapter 5, subchapter II, or to section 702
of that title. Each party shall limit its presentation at the hearing
to a summary of the information and arguments contained in its
prehearing brief, an analysis of the information and arguments
contained in the prehearing briefs described in Sec. 207.22, and
information not available at the time its prehearing brief was filed.
Unless a portion of the hearing is closed, presentations at the hearing
shall not include business proprietary information. Notwithstanding
Sec. 201.13(f) of this chapter, in connection with its presentation a
party may file witness testimony with the Secretary no later than three
(3) business days before the hearing. In the case of testimony to be
presented at a closed session held in response to a request under
Sec. 207.23(a), confidential and non-confidential versions shall be
filed in accordance with Sec. 207.3. Any person not a party may make a
brief oral statement of information pertinent to the investigation.
* * * * *
(d) Closed sessions. Upon a request filed by a party to the
investigation no later than seven (7) days prior to the date of the
hearing that identifies the subjects to be discussed, specifies the
amount of time requested, and justifies the need for a closed session
with respect to each subject to be discussed, the Commission may close
a portion of a hearing to persons not authorized under Sec. 207.7 to
have access to business proprietary information in order to allow such
party to address business proprietary information during the course of
its presentation. In addition, during each hearing held in an
investigation conducted under section 303, 705(b) or 735(b) of the Act,
following the public presentation of the petitioner(s) and that of each
panel of respondents, the Commission will, if it deems it appropriate,
close the hearing to persons not authorized under Sec. 207.7 to have
access to business proprietary information in order to allow
Commissioners to question parties and/or their representatives
concerning matters involving business proprietary information.
By order of the Commission.
Issued: December 19, 1994.
Donna R. Koehnke,
Secretary.
[FR Doc. 94-31511 Filed 12-27-94; 8:45 am]
BILLING CODE 7020-02-M
