[Federal Register Volume 69, Number 214 (Friday, November 5, 2004)]
[Proposed Rules]
[Pages 64541-64546]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24704]


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INTERNATIONAL TRADE COMMISSION

19 CFR Parts 206 and 207


Investigations Relating to Global and Bilateral Safeguard 
Actions, Market Disruption, Trade Diversion and Review of Relief 
Actions; and 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: International Trade Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: On December 4, 2002, the United States International Trade 
Commission invited the public to provide input on specific ways in 
which it could improve its conduct of antidumping duty (AD) and 
countervailing duty (CVD) investigations (67 FR 72221, December 4, 
2002). After consideration of the comments that were received, the 
Commission has decided to propose certain amendments to its Rules of 
Practice and Procedure.

DATES: Comment Date: To be assured of consideration, written comments 
must be received by 5:15 p.m. on January 4, 2005.

ADDRESSES: A signed original and 14 copies of each set of comments on 
these proposed amendments, along with a cover letter, should be 
submitted by mail or hand delivery to Marilyn R. Abbott, Secretary, 
United States International Trade Commission, 500 E Street, SW., Room 
112, Washington, DC 20436. Comments may be submitted electronically to 
the extent provided by section 201.8 of the Commission's rules, as 
amended at 67 FR 68063 (November 8, 2002) and 68 FR 32971 (June 3, 
2003).

FOR FURTHER INFORMATION CONTACT: Marilyn R. Abbott, Secretary, United 
States International Trade Commission, telephone 202-205-2000. Hearing-
impaired individuals are advised that information on this matter can be 
obtained by contacting the Commission's TDD terminal at 202-205-1810. 
General information concerning the Commission may also be obtained by 
accessing its Internet server (http://www.usitc.gov).

SUPPLEMENTARY INFORMATION: The preamble below is designed to assist 
readers in understanding these proposed amendments to the Commission's 
Rules. The preamble begins with a discussion of the background leading 
up to these proposed amendments, a regulatory analysis addressing 
government-wide statutes and issuances on rulemaking, and a description 
of the proposed amendments to the rules. The Commission encourages 
members of the public to comment--in addition to any other comments 
they wish to make on the proposed amendments--on whether the proposed 
language is sufficiently clear for users of the rules to understand. In 
addition to these proposed amendments, the Commission has made some 
changes to its internal procedures not requiring amendment to its 
rules, which are contained in a Notice that has been published 
elsewhere in today's Federal Register.

Background

    On December 4, 2002, the United States International Trade 
Commission published a notice in the Federal Register (67 FR 72221) 
inviting the public to provide input on specific ways in which it could 
improve its conduct of AD and CVD investigations under 19

[[Page 64542]]

U.S.C. 1671 et seq. The notice requested that such comments be filed 
within 90 days of publication of that notice in the Federal Register. 
Nine sets of comments were received, which suggested a number of 
changes to Commission rules, questionnaires, opinions, hearings and 
other practices.
    The Commission appreciates the time and effort those who provided 
comments took to present their views, and believes that the comments 
have contributed to improving Commission procedures. The comments 
stimulated an internal review of the Commission's rules and practices 
in AD and CVD proceedings. That internal review has in turn resulted in 
a decision to propose certain changes to the Commission's rules. Some 
of the changes were not specifically suggested by any comment. A few 
are parallel amendments to comparable rules in Part 206 of the 
Commission's rules dealing with certain safeguard and market disruption 
proceedings. As is its normal practice, the Commission will continue to 
evaluate its procedures on an ongoing basis and will consider modifying 
them as is appropriate. Although the December 4, 2002 Notice noted that 
a hearing on these proposals might be held, after reviewing the 
comments, the Commission decided that such a hearing would not be 
necessary.

Regulatory Analysis of Proposed Amendments to the Commission's Rules

    The Commission has determined that the proposed rules do not meet 
the criteria described in Section 3(f) of Executive Order 12866 (58 FR 
51735, Oct. 4, 1993) and thus do not constitute a significant 
regulatory action for purposes of the Executive Order.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is 
inapplicable to this rulemaking because it is not one for which a 
notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any 
other statute. Although the Commission has chosen to publish a notice 
of proposed rulemaking, these proposed regulations are ``agency rules 
of procedure and practice,'' and thus are exempt from the notice 
requirement imposed by 5 U.S.C. 553(b).
    These proposed rules do not contain federalism implications 
warranting the preparation of a federalism summary impact statement 
pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).
    No actions are necessary under the Unfunded Mandates Reform Act of 
1995 (2 U.S.C. 1501 et seq.) because the proposed rules will not result 
in the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more in any one 
year, and will not significantly or uniquely affect small governments.
    The proposed rules are not major rules as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996 (5 
U.S.C. 801 et seq.). Moreover, they are exempt from the reporting 
requirements of the Contract With America Advancement Act of 1996 (Pub. 
L. 104-121) because they concern rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties.
    The amendments are not subject to section 3504(h) of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.), since they do not contain any 
new information collection requirements.

Explanation of the Proposed Amendments to 19 CFR Parts 206 and 207

    Section 207.3(b) provides that certain documents must be served by 
hand, or by overnight mail or its equivalent, upon other parties on the 
Commission's service lists. However, currently, requests to have a 
portion of the public hearing in final investigations held in camera 
are not explicitly mentioned as being subject to this requirement. In 
light of the proposed revision of rule 207.24 to allow responses to 
requests to have a portion of the public hearing in final 
investigations held in camera, and the short time provided for such 
comments, clarifying that hand or next-day service of those requests 
(and any comments on those requests) is required seems appropriate.
    Section 207.7(b) describes the terms of an Administrative 
Protective Order (APO) that will be issued in each investigation, 
including provisions pertaining to clerical or other staff who are 
employed or supervised by an applicant for the APO. Two of the comments 
suggested that such clerical or other staff no longer be required to 
file an APO application with the Commission, and the Commission 
proposes that the rule be amended accordingly. Such clerical or other 
staff would still need to sign a form approved by the Secretary whereby 
they would agree to be bound by the terms of the APO, but that form 
would not be filed with the Commission unless specifically requested by 
the Secretary. The authorized applicant would be responsible for 
retention and accuracy of such forms and would be deemed responsible 
for such clerical persons' compliance with the APO.
    A similar change is proposed for APOs issued under the comparable 
provisions of section 206.17 of the Commission's rules, which pertains 
to investigations relating to global and bilateral safeguard actions, 
market disruption, trade diversion, and review of relief actions, and 
to APOs issued in NAFTA panel and committee proceedings governed by 
section 207.93 of the Commission's rules.
    Section 207.10(a) provides that a petition shall be deemed to be 
properly filed on the date on which the requisite number of copies is 
received by the Secretary. Frequently, petitions are filed late in the 
day, very close to the close of business for the Commission. By the 
time the petition is processed by the Secretary and distributed to the 
Commission and all pertinent staff, it is usually the next business 
day, often after an intervening weekend. This hinders the Commission's 
ability to proceed expeditiously with its investigation, a matter of 
concern in light of the fact that the statute normally gives the 
Commission only 45 days to conduct its preliminary phase investigation 
and issue its preliminary determination. Accordingly, the Commission 
proposes to amend the rule to provide that if the proper number of 
copies of the petition is not filed until after 12 noon, the filing 
date will be deemed to be the next business day. The Commission has 
already recently clarified rule 201.3 to provide that documents filed 
after close of business are deemed filed the next business day. 68 FR 
32971 (June 3, 2003).
    While the statute requires that a copy of the petition must be 
filed with the Commission ``on the same day as it is filed with the 
administering authority,'' \1\ and while Commerce does not have an 
``after noon'' filing rule, we do not believe the proposed rule will 
adversely affect the filing of petitions or the conduct of 
investigations. The existing rules of the Commission clearly point out 
that a document that is not filed until after 5:15 p.m., when the 
Commission closes for business, will be deemed to have been filed the 
next business day.\2\ Further, the two agencies have slightly different 
hours of business (Commerce is open for filing ``between 8:30 a.m. and 
5 p.m. on business days,'' \3\ while the Commission is open for filing 
between 8:45 a.m. and 5:15 p.m.). There has already been at least one 
occasion when the date of filing of the petition at Commerce was on the 
business day before proper filing at the Commission. In that instance, 
the

[[Page 64543]]

petition was filed at Commerce before its docket closed, in that case 
on Friday, March 29, 1996, but was not filed at the Commission until 
after close of business at the Commission on that date. In that case, 
Commerce, noting the requirement that petitions must be filed on the 
same day with both Commerce and the Commission, deemed the petition to 
be filed on the day the Commission deemed it filed, the next business 
day, Monday, April 1, 1996.\4\ We would anticipate that under the 
proposed rule, which would deem an after noon filing at the Commission 
to occur on the next business day, the result would be similar. We note 
that a similar problem could arise even under the existing rule if a 
petitioner did not file the correct number of copies of a petition, or 
otherwise did not comply with the filing rules of the Commission, the 
same day it properly filed the petition at Commerce. As a final point, 
we note that it is the petitioner who controls the time in which the 
petition is filed, and thus a petitioner can plan accordingly for the 
proposed filing deadline.
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    \1\ 19 U.S.C. 1671a(b)(2); 1673a(b)(2).
    \2\ 19 CFR 201.3 (c), as amended, 68 FR 32971, 32973 (June 3, 
2003).
    \3\ 19 CFR 351.103.
    \4\ See Initiation of Antidumping Duty Investigation; Fresh 
Tomatoes from Mexico, 61 FR 18377 (April 25, 1996) (``In this 
instance, the ITC does not consider the petition covering fresh 
tomatoes from Mexico to have been filed until April 1, 1996. As 
such, the Department considers the petition as having been filed in 
proper form on April 1, 1996, not March 29, 1996.'').
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    In theory, deeming a ``late'' petition to be filed on the next 
business day could have implications for the period of investigation 
for Commerce under its rules, if, as in Tomatoes, there is an attempt 
to file a petition on the last business day of a calendar quarter. 
Commerce's rules for antidumping investigations, for example, provide 
that it will normally consider the ``four most recently completed 
fiscal quarters * * * as of the month preceding the month in which the 
petition was filed * * *.'' \5\ However, Commerce's rules also 
specifies ``the Secretary may examine merchandise sold during any 
additional or alternate period that the Secretary concludes is 
appropriate.'' \6\ Therefore, as in Tomatoes, we would not anticipate 
that the proposed rule would effectively force Commerce to change its 
period of investigation.
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    \5\ 19 CFR 351.204(b).
    \6\ 19 CFR 351.204(b).
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    We invite comment on the effects of the proposed rule, particularly 
if there is any concern that it would, notwithstanding the discussion 
above, create problems in light of the ``simultaneous filing'' 
requirement of the statute.
    For similar reasons, an amendment is also proposed for rule 206.45, 
which would provide that the date on which a petition is filed would be 
deemed to be the next business day when a petition is filed after 12:00 
noon.
    Section 207.23 currently requires interested parties that are 
parties to the investigation to submit a prehearing brief no later than 
four (4) business days prior to the hearing. As noted above, it is 
proposed to make this deadline one business day earlier, so that 
prehearing briefs will be due five business days prior to the hearing, 
giving the Commission and staff some additional time to consider 
arguments and information presented in those prehearing briefs.
    Rule 207.24(d) provides that a party to the investigation may 
request that a portion of the public hearing be held in camera, but 
requires that the request be made no later than seven (7) calendar days 
prior to the hearing. However, parties frequently wait until that last 
day before making such requests. It normally takes several business 
days to process and consider such requests. Frequently other parties to 
the investigation respond to the request a day or two after the request 
is made, either to object or to note their concurrence with the 
request. Thus, generally it is not possible to reach a decision as to 
whether to grant or deny the request until shortly before the hearing, 
both making hearing preparation more difficult for parties (because 
they do not know whether or not the hearing will be public in its 
entirety) and taking time to prepare for the hearing away from the 
Commission and staff. Accordingly, it is proposed to amend rule 207.24 
to require that requests to close a portion of the hearing be made no 
later than seven (7) business (instead of calendar) days prior to the 
hearing and that any comments on that request be made within two (2) 
business days after the filing of the request. As always, the 
Commission would seek to act on such requests as expeditiously as 
possible, but a somewhat earlier deadline for submitting the request 
may result in an earlier decision than is currently possible.
    The rules currently provide that the Commission Secretary is 
responsible for the APO in a NAFTA appeal, pursuant to Commission rule 
207.93(a), 19 U.S.C. 1677f(f)(1), and NAFTA Rules 47(3) and 48. Parties 
to a NAFTA appeal that were covered by a Commission APO during the 
underlying investigation are bound to the terms of the NAFTA APO (Form 
C) 15 days after the first request for a panel, if they have not 
notified the Commission of return or destruction of documents. These 
parties to the NAFTA appeal are not required to file a new APO 
application in the NAFTA appeal, but are required, pursuant to 
Commission rule 207.93(c)(5), to file 4 copies with the NAFTA 
Secretariat and 3 copies with the Commission Secretary of the APO 
applications and other various updates in the underlying proceeding. 
The parties also must inform the Commission Secretary of any changes to 
both the Commission and NAFTA APOs. Individuals not covered in the 
original Commission APOs must file a NAFTA APO form C. Parties 
frequently have filed both copies of the original Commission APOs and 
the NAFTA APO form C when not required by the Commission or NAFTA 
rules.
    To streamline and clarify this process, the Commission proposes to 
change its rule so that all parties would file NAFTA APO applications. 
Parties covered under the Commission APO would still be bound on day 
15, but would be required to file new NAFTA APO applications rather 
than file the numerous copies of original Commission applications and 
updates. This would streamline the process for the Commission Secretary 
and parties as well as reduce the papers filed. The proposed change to 
Commission rule 207.93(e) would also set forth a requirement that the 
Commission Secretary compile a NAFTA APO list.
    A minor amendment is also proposed to change the references to the 
Mexican Secretary of Commerce and Industrial Development to the Mexican 
Secretary of Economia which we are informed by the NAFTA Secretariat is 
the more accurate term.

List of Subjects in CFR Parts 206 and 207

    Administrative practice and procedure, Investigations.

    For the reasons stated in the preamble, the Commission proposes to 
amend 19 CFR parts 206 and 207 as set forth below:

PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD 
ACTIONS, MARKET DISRUPTION, TRADE DIVERSION, AND REVIEW OF RELIEF 
ACTIONS

    1. The authority citation for part 206 continues to read as 
follows:

    Authority: 19 U.S.C. 1335, 2251-2254, 2451-2451a, 3351-3382, 
sections 103, 301-302, Pub. L. 103-465, 108 Stat. 4809.

    2. Amend Sec.  206.17 by revising paragraphs (b) introductory text, 
(b)(1) introductory text, and (b)(1)(iv) to read as follows:

[[Page 64544]]

Sec.  206.17  Limited disclosure of certain confidential business 
information under administrative protective order.

* * * * *
    (b) Administrative protective order. The administrative protective 
order under which information is made available to the authorized 
applicant shall require the applicant to submit to the Secretary a 
personal sworn statement that, in addition to such other conditions as 
the Secretary may require, the applicant shall:
    (1) Not divulge any of the business proprietary information 
obtained under the administrative protective order and not otherwise 
available to the applicant, to any person other than:
* * * * *
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by an authorized applicant; who have a need 
thereof in connection with the investigation; who are not involved in 
competitive decisionmaking on behalf of an interested party which is a 
party to the investigation; and who have signed a statement in a form 
approved by the Secretary that they agree to be bound by the 
administrative protective order (the authorized applicant shall be 
responsible for retention and accuracy of such forms and shall be 
deemed responsible for such persons' compliance with the administrative 
protective order);
* * * * *
    3. Amend Sec.  206.45 by adding paragraph (e) as follows:


Sec.  206.45  Time for reporting.

* * * * *
    (e) Date of filing. Any petition described in this rule that is 
filed after 12:00 noon shall be deemed to be filed on the next business 
day.

PART 207--INVESTIGATIONS OF WHETHER INJURY TO DOMESTIC INDUSTRIES 
RESULTS FROM IMPORTS SOLD AT LESS THAN FAIR VALUE OR FROM 
SUBSIDIZED EXPORTS TO THE UNITED STATES

    4. The authority citation for part 207 continues to read as 
follows:

    Authority: 19 U.S.C. 1336, 1671-1677n, 2482, 3513.

    5. Amend Sec.  207.3 by revising paragraph (b) as follows:


Sec.  207.3  Service, filing, and certification of documents.

* * * * *
    (b) Service. Any party submitting a document for inclusion in the 
record of the investigation shall, in addition to complying with Sec.  
201.8 of this chapter, serve a copy of each such document on all other 
parties to the investigation in the manner prescribed in Sec.  201.16 
of this chapter. If a document is filed before the Secretary's issuance 
of the service list provided for in Sec.  201.11 of this chapter or the 
administrative protective order list provided for in Sec.  207.7, the 
document need not be accompanied by a certificate of service, but the 
document shall be served on all appropriate parties within two (2) days 
of the issuance of the service list or the administrative protective 
order list and a certificate of service shall then be filed. 
Notwithstanding Sec.  201.16 of this chapter, petitions, briefs, 
requests to close a portion of the hearing, comments on requests to 
close a portion of the hearing, and testimony filed by parties pursuant 
to Sec. Sec.  207.10, 207.15, 207.23, 207.24, 207.25, 207.65, 207.66, 
and 207.67, shall be served by hand or, if served by mail, by overnight 
mail or its equivalent. Failure to comply with the requirements of this 
rule may result in removal from status as a party to the investigation. 
The Commission shall make available to all parties to the investigation 
a copy of each document, except transcripts of conferences and 
hearings, business proprietary information, privileged information, and 
information required to be served under this section, placed in the 
record of the investigation by the Commission.
* * * * *
    6. Amend Sec.  207.7(b) by revising paragraphs (b) introductory 
text, (b)(1) introductory text, and (b)(1)(iv) to read as follows:


Sec.  207.7  Limited disclosure of certain business proprietary 
information under administrative protective order.

* * * * *
    (b) Administrative protective order. The administrative protective 
order under which information is made available to the authorized 
applicant shall require the applicant to submit to the Secretary a 
personal sworn statement that, in addition to such other conditions as 
the Secretary may require, the applicant shall:
    (1) Not divulge any of the business proprietary information 
obtained under the administrative protective order and not otherwise 
available to the applicant, to any person other than:
* * * * *
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by the authorized applicant; who have a need 
thereof in connection with the investigation; who are not involved in 
competitive decision making for an interested party which is a party to 
the investigation; and who have signed a statement in a form approved 
by the Secretary that they agree to be bound by the administrative 
protective order (the authorized applicant shall be responsible for 
retention and accuracy of such forms and shall be deemed responsible 
for such persons' compliance with the administrative protective order);
* * * * *
    7. Amend Sec.  207.10 by revising paragraph (a) as follows:


Sec.  207.10  Filing of petition with the Commission.

    (a) Filing of the petition. Any interested party who files a 
petition with the administering authority pursuant to section 702(b) or 
section 732(b) of the Act in a case in which a Commission determination 
under title VII of the Act is required, shall file copies of the 
petition, including all exhibits, appendices, and attachments thereto, 
pursuant to Sec.  201.8 of this chapter, with the Secretary on the same 
day the petition is filed with the administering authority. If the 
petition complies with the provisions of Sec.  207.11, it shall be 
deemed to be properly filed on the date on which the requisite number 
of copies of the petition is received by the Secretary, provided that, 
if the petition is filed with the Secretary after 12:00 noon, the 
petition shall be deemed filed on the next business day. The Secretary 
shall notify the administering authority of that date. Notwithstanding 
Sec.  201.11 of this chapter, a petitioner need not file an entry of 
appearance in the investigation instituted upon the filing of its 
petition, which shall be deemed an entry of appearance.
* * * * *
    8. Revise Sec.  207.23 as follows:


Sec.  207.23  Prehearing brief.

    Each party who is an interested party shall submit to the 
Commission, no later than five (5) business days prior to the date of 
the hearing specified in the notice of scheduling, 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 705(b) 
or section 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.
    9. Amend Sec.  207.24 by revising paragraph (d) as follows:

[[Page 64545]]

Sec.  207.24  Hearing.

* * * * *
    (d) Closed sessions. Upon a request filed by a party to the 
investigation no later than seven (7) business 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. If any party wishes to comment on the 
request to close a portion of the hearing, such comments must be filed 
within two (2) business days after the filing of the request. In 
addition, during each hearing held in an investigation conducted under 
section 705(b) or section 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.
    10. Amend Sec.  207.93 by revising paragraphs (b)(6), (c)(1), 
(c)(2)(ii), (c)(3), (c)(4)(ii)(A), (c)(5)(i), (c)(5)(ii), (c)(5)(iii), 
and (e); and by adding paragraph (b)(7) as follows:


Sec.  207.93  Protection of proprietary information during panel and 
committee proceedings.

* * * * *
    (b) * * *
    (6) Any officer or employee of the Government of Canada or the 
Government of Mexico who the Canadian Minister of Trade or the Mexican 
Secretary of Economia, as the case may be, informs the Commission 
Secretary needs access to proprietary information to make 
recommendations regarding the convening of extraordinary challenge 
committees; and
    (7) Counsel representing, and other staff providing support to, the 
investigating authority, the Commission.
    (c) Procedures for obtaining access to proprietary information 
under protective order--(1) Persons who must file an application for 
release under protective order. To be permitted access to proprietary 
information in the administrative record of a determination under panel 
review, all persons described in paragraphs (b) (1), (2), (4), (5), 
(6), or (c)(5)(i) of this section shall file an application for a 
protective order.
    (2) * * *
    (ii) Such forms shall require the applicant to submit a personal 
sworn statement that, in addition to such other conditions as the 
Commission Secretary may require, the applicant will:
    (A) Not disclose any proprietary information obtained under 
protective order and not otherwise available to any person other than:
    (1) Personnel of the Commission involved in the particular panel 
review in which the proprietary information is part of the 
administrative record,
    (2) The person from whom the information was obtained,
    (3) A person who is authorized to have access to the same 
proprietary information pursuant to a Commission protective order, and
    (4) A clerical person retained or employed by and under the 
direction and control of a person described in paragraph (b)(1), (2), 
(5), or (6) of this section who has been issued a protective order, if 
such clerical person has signed and dated an agreement, provided to the 
Commission Secretary upon request, to be bound by the terms set forth 
in the application for a protective order of the person who retains or 
employs him or her (the authorized applicant shall be responsible for 
retention and accuracy of such forms and shall be deemed responsible 
for such persons' compliance with the administrative protective order);
    (B) Not use any of the proprietary information released under 
protective order and not otherwise available for purposes other than 
the particular proceedings under Article 1904 of the Agreement;
    (C) Upon completion of panel review, or at such other date as may 
be determined by the Commission Secretary, return to the Commission, or 
certify to the Commission Secretary the destruction of, all documents 
released under the protective order and all other material (such as 
briefs, notes, or charts), containing the proprietary information 
released under the protective order, except that those described in 
paragraph (b)(1) of this section may return such documents and other 
materials to the United States Secretary. The United States Secretary 
may retain a single file copy of each document for the official file.
    (D) Update information in the application for protective order as 
required by the protective order; and
    (E) Acknowledge that the person becomes subject to the provisions 
of 19 U.S.C. 1677f(f) and to this subpart, as well as corresponding 
provisions of Canadian and Mexican law on disclosure undertakings 
concerning proprietary information.
    (3) Timing of applications. An application for any person described 
in paragraph (b)(1) or (b)(2) of this section may be filed after a 
notice of request for panel review has been filed with the Secretariat. 
A person described in paragraph (b)(4) of this section shall file an 
application immediately upon assuming official responsibilities in the 
United States, Canadian or Mexican Secretariat. An application for any 
person described in paragraph (b)(5) or (b)(6) of this section may be 
filed at any time after the United States Trade Representative, the 
Canadian Minister of Trade, or the Mexican Secretary of Economia, as 
the case may be, has notified the Commission Secretary that such person 
requires access.
    (4) * * *
    (ii) Applications of persons described in paragraph (b)(2) of this 
section---
    (A) Filing. A person described in paragraph (b)(2) of this section, 
concurrent with the filing of a complaint or notice of appearance in 
the panel review on behalf of the participant represented by such 
person, shall file the completed original of the form (NAFTA APO Form 
C) and three (3) copies with the Commission Secretary, and four (4) 
copies with the United States Secretary.
* * * * *
    (5) Persons who retain access to proprietary information under a 
protective order issued during the administrative proceedings.
    (i) If counsel or a professional has been granted access in an 
administrative proceeding to proprietary information under a protective 
order that contains a provision governing continued access to that 
information during panel review, and that counsel or professional 
retains the proprietary information more than fifteen (15) days after a 
First Request for Panel Review is filed with the Secretariat, that 
counsel or professional, and such clerical persons with access on or 
after that date, become immediately subject to the terms and conditions 
of NAFTA APO Form C maintained by the Commission Secretary on that date 
including provisions regarding sanctions for violations thereof.
    (ii) Any person described in paragraph (c)(5)(i) of this section, 
concurrent with the filing of a complaint or notice of appearance in 
the panel review on behalf of the participant represented by such 
person, shall:

[[Page 64546]]

    (A) File the completed original of the form (NAFTA APO Form C) and 
three (3) copies with the Commission Secretary; and
    (B) File four (4) copies of the completed NAFTA APO Form C with the 
United States Secretary.
    (iii) Any person described in paragraph (c)(5)(i) of this section 
must submit a new application for a protective order at the 
commencement of a panel review.
* * * * *
    (e) Retention of protective orders; service list. The Commission 
Secretary shall retain, in a public file, copies of applications 
granted, including any updates thereto, and protective orders issued 
under this section, including protective orders filed in accordance 
with paragraph (b)(6)(ii) of this section. The Secretary shall 
establish a list of persons authorized to receive proprietary 
information in a review, including parties whose applications have been 
granted.
* * * * *

    By Order of the Commission.

    Issued: November 1, 2004.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 04-24704 Filed 11-4-04; 8:45 am]
BILLING CODE 7020-02-P