30434 Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Notices

INTERNATIONAL TRADE

COMMISSION

Summary of Commission Practice

Relating to Administrative Protective

Orders

AGENCY: U.S. International Trade

Commission.

ACTION: Summary of Commission

practice relating to administrative

protective orders.

SUMMARY: Since February 1991, the U.S.

International Trade Commission

(‘‘Commission’’) has issued an annual

report on the status of its practice with

respect to violations of its

administrative protective orders

(‘‘APOs’’) in investigations under Title

VII of the Tariff Act of 1930 in response

to a direction contained in the

Conference Report to the Customs and

Trade Act of 1990. Over time, the

Commission has added to its report

discussions of APO breaches in

Commission proceedings other than

Title VII and violations of the

Commission’s rule on bracketing

business proprietary information

(‘‘BPI’’) (the ‘‘24-hour rule’’), 19 CFR

207.3(c). This notice provides a

summary of investigations of breaches

in Title VII investigations for the period

ending December 31, 1999. There were

no investigations of breaches for other

Commission proceedings or for 24-hour

rule violations during that period. The

Commission intends that this report

educate representatives of parties to

Commission proceedings as to some

specific types of APO breaches

encountered by the Commission and the

corresponding types of actions the

Commission has taken.

FOR FURTHER INFORMATION CONTACT:

Carol McCue Verratti, Esq., Office of the

General Counsel, U.S. International

Trade Commission, telephone (202)

205–3088. 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 can also be

obtained by accessing its Internet server

(http://www.usitc.gov).

SUPPLEMENTARY INFORMATION:

Representatives of parties to

investigations conducted under Title VII

of the Tariff Act of 1930 may enter into

APOs that permit them, under strict

conditions, to obtain access to BPI of

other parties. See 19 U.S.C. 1677f; 19

CFR 207.7. The discussion below

describes APO breach investigations

that the Commission has completed,

including a description of actions taken

in response to breaches. The discussion

covers breach investigations completed

during calendar year 1999.

Since 1991, the Commission has

published annually a summary of its

actions in response to violations of

Commission APOs and the 24-hour rule.

See 56 FR 4846 (Feb. 6, 1991); 57 FR

12,335 (Apr. 9, 1992); 58 FR 21,991

(Apr. 26, 1993); 59 FR 16,834 (Apr. 8,

1994); 60 FR 24,880 (May 10, 1995); 61

FR 21,203 (May 9, 1996); 62 FR 13,164

(March 19, 1997); 63 FR 25064 (May 6,

1998); 64 FR 23355 (April 30, 1999).

This report does not provide an

exclusive list of conduct that will be

deemed to be a breach of the

Commission’s APOs. APO breach

inquiries are considered on a case-bycase basis.

As part of the effort to educate

practitioners about the Commission’s

current APO practice, the Commission

Secretary issued in April 1996 a revised

edition of An Introduction to

Administrative Protective Order Practice

in Antidumping and Countervailing

Duty Investigations (Pub. No. 2961).

This document is available upon request

from the Office of the Secretary, U.S.

International Trade Commission, 500 E

Street, SW, Washington, DC 20436, tel.

(202) 205–2000.

I. In General

The current APO form for

antidumping and countervailing duty

investigations, which the Commission

has used since March 1995, requires the

applicant to swear that he or she will:

(1) Not divulge any of the BPI

obtained under the APO and not

otherwise available to him, to any

person other than—

(i) personnel of the Commission

concerned with the investigation,

(ii) the person or agency from whom

the BPI was obtained,

(iii) a person whose application for

disclosure of BPI under this APO has

been granted by the Secretary, and

(iv) other persons, such as paralegals

and clerical staff, who (a) are employed

or supervised by and under the

direction and control of the authorized

applicant or another authorized

applicant in the same firm whose

application has been granted; (b) have a

need thereof in connection with the

investigation; (c) are not involved in

competitive decisionmaking for the

interested party which is a party to the

investigation; and (d) have submitted to

the Secretary a signed Acknowledgment

for Clerical Personnel in the form

attached hereto (the authorized

applicant shall sign such

acknowledgment and will be deemed

responsible for such persons’

compliance with the APO);

(2) Use such BPI solely for the

purposes of the Commission

investigation [or for binational panel

review of such Commission

investigation or until superceded by a

judicial protective order in a judicial

review of the proceeding];

(3) Not consult with any person not

described in paragraph (1) concerning

BPI disclosed under this APO without

first having received the written consent

of the Secretary and the party or the

representative of the party from whom

such BPI was obtained;

(4) Whenever materials (e.g.,

documents, computer disks, etc.)

containing such BPI are not being used,

store such material in a locked file

cabinet, vault, safe, or other suitable

container (N.B.: storage of BPI on socalled hard disk computer media is to

be avoided, because mere erasure of

data from such media may not

irrecoverably destroy the BPI and may

result in violation of paragraph C of the

APO);

(5) Serve all materials containing BPI

disclosed under this APO as directed by

the Secretary and pursuant to section

207.7(f) of the Commission’s rules;

(6) Transmit such document

containing BPI disclosed under this

APO:

(i) with a cover sheet identifying the

document as containing BPI,

(ii) with all BPI enclosed in brackets

and each page warning that the

document contains BPI,

(iii) if the document is to be filed by

a deadline, with each page marked

‘‘Bracketing of BPI not final for one

business day after date of filing,’’ and

(iv) if by mail, within two envelopes,

the inner one sealed and marked

‘‘Business Proprietary Information—To

be opened only by [name of recipient]’’,

and the outer one sealed and not

marked as containing BPI;

(7) Comply with the provision of this

APO and section 207.7 of the

Commission’s rules;

(8) Make true and accurate

representations in the authorized

applicant’s application and promptly

notify the Secretary of any changes that

occur after the submission of the

application and that affect the

representations made in the application

(e.g., change in personnel assigned to

the investigation);

(9) Report promptly and confirm in

writing to the Secretary any possible

breach of the APO; and

(10) Acknowledge that breach of the

APO may subject the authorized

applicant and other persons to such

sanctions or other actions as the

Commission deems appropriate

including the administrative sanctions

Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Notices 30435

and actions set out in this APO. The

APO further provides that breach of

protective order may subject an

applicant 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, such person or the party

he represents; 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.

Commission employees are not

signatories to the Commission’s APOs

and do not obtain access to BPI through

APO procedures. Consequently, they are

not subject to the requirements of the

APO with respect to the handling of

BPI. However, Commission employees

are subject to strict statutory and

regulatory constraints concerning BPI,

and face potentially severe penalties for

noncompliance. See 18 U.S.C. 1905;

Title 5, U.S. Code; and Commission

personnel policies implementing the

statutes. Although the Privacy Act (5

U.S.C. 552a) limits the Commission’s

authority to disclose any personnel

action against agency employees, this

should not lead the public to conclude

that no such actions have been taken.

An important provision of the

Commission’s rules relating to BPI is the

‘‘24-hour’’ rule. This rule provides that

parties have one business day after the

deadline for filing documents

containing BPI to file a public version

of the document. The rule also permits

changes to the bracketing of information

in the proprietary version within this

one-day period. No changes— other

than changes in bracketing—may be

made to the proprietary version. The

rule was intended to reduce the

incidence of APO breaches caused by

inadequate bracketing and improper

placement of BPI. The Commission

urges parties to make use of the rule. If

a party wishes to make changes to a

document other than bracketing, such as

typographical changes or other

corrections, the party must ask for an

extension of time to file an amendment

document pursuant to section

201.14(b)(2) of the Commission’s rules.

II. Investigations of Alleged APO

Breaches

Upon finding evidence of a breach or

receiving information that there is a

reason to believe one has occurred, the

Commission Secretary notifies relevant

offices in the agency that an APO breach

investigation file has been opened.

Upon receiving notification from the

Secretary, the Office of General Counsel

(OGC) begins to investigate the matter.

The OGC prepares a letter of inquiry to

be sent to the alleged breacher over the

Secretary’s signature to ascertain the

alleged breacher’s views on whether a

breach has occurred. If, after reviewing

the response and other relevant

information, the Commission

determines that a breach has occurred,

the Commission often issues a second

letter asking the breacher to address the

questions of mitigating or aggravating

circumstances and possible sanctions or

other actions. The Commission then

determines what action to take in

response to the breach. In some cases,

the Commission has determined that

although a breach has occurred,

sanctions are not warranted, and

therefore has found it unnecessary to

issue a second letter concerning what

sanctions might be appropriate. Instead,

it issues a warning letter to the

individual. The Commission retains sole

authority to determine whether a breach

has occurred and, if so, the appropriate

action to be taken.

The records of Commission

investigations of alleged APO breaches

in antidumping and countervailing duty

cases are not publicly available and are

exempt from disclosure under the

Freedom of Information Act, 5 U.S.C.

552, section 135(b) of the Customs and

Trade Act of 1990, and 19 U.S.C.

1677f(g).

The breach most frequently

investigated by the Commission

involves the APO’s prohibition on the

dissemination of BPI to unauthorized

persons. Such dissemination usually

occurs as the result of failure to delete

BPI from public versions of documents

filed with the Commission or

transmission of proprietary versions of

documents to unauthorized recipients.

Other breaches have included: the

failure to bracket properly BPI in

proprietary documents filed with the

Commission; the failure to report

immediately known violations of an

APO; and the failure to supervise

adequately non-legal personnel in the

handling of BPI.

Counsel participating in Title VII

investigations have recently reported to

the Commission two potential breaches

involving the electronic transmission of

public versions of documents. In both

cases, the document transmitted appears

to be a public document with BPI

omitted from brackets. However, the BPI

is actually retrievable by manipulating

codes in the computer software

programs. The Commission is currently

conducting investigations of these

potential breaches and has not made

any determination at this time.

The Commission advised in the

preamble to the notice of proposed

rulemaking in 1990 that it will permit

authorized applicants a certain amount

of discretion in choosing the most

appropriate method of safeguarding the

confidentiality of the information.

However, the Commission cautioned

authorized applicants that they would

be held responsible for safeguarding the

confidentiality of all BPI to which they

are granted access and warned

applicants about the potential hazards

of storage on hard disk. The caution in

that preamble is restated here:

[T]he Commission suggests that certain

safeguards would seem to be particularly

useful. When storing business proprietary

information on computer disks, for example,

storage on floppy disks rather than hard disks

is recommended, because deletion of

information from a hard disk does not

necessarily erase the information, which can

often be retrieved using a utilities program.

Further, use of business proprietary

information on a computer with the

capability to communicate with users outside

the authorized applicant’s office incurs the

risk of unauthorized access to the

information through such communication. If

a computer malfunctions, all business

proprietary information should be erased

from the machine before it is removed from

the authorized applicant’s office for repair.

While no safeguard program will insulate an

authorized applicant from sanctions in the

event of a breach of the administrative

protective order, such a program may be a

mitigating factor. Preamble to notice of

proposed rulemaking, 55 Fed. Reg. 24,100,

21,103 (June 14, 1990).

Sanctions for APO violations serve

two basic interests: (a) preserving the

confidence of submitters of BPI in the

Commission as a reliable protector of

BPI; and (b) disciplining breachers and

deterring future violations. As the

Conference Report to the Omnibus

Trade and Competitiveness Act of 1988

observed, ‘‘the effective enforcement of

limited disclosure under administrative

protective order depends in part on the

extent to which private parties have

30436 Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Notices

confidence that there are effective

sanctions against violation.’’ H.R. Conf.

Rep. No. 576, 100th Cong., 1st Sess. 623

(1988).

The Commission has worked to

develop consistent jurisprudence, not

only in determining whether a breach

has occurred, but also in selecting an

appropriate response. In determining

the appropriate response, the

Commission generally considers

mitigating factors such as the

unintentional nature of the breach, the

lack of prior breaches committed by the

breaching party, the corrective measures

taken by the breaching party, and the

promptness with which the breaching

party reported the violation to the

Commission. The Commission also

considers aggravating circumstances,

especially whether persons not under

the APO actually read the BPI. The

Commission considers whether there

are prior breaches by the same person or

persons in other investigations and

multiple breaches by the same person or

persons in the same investigation.

The Commission’s rules permit

economists or consultants to obtain

access to BPI under the APO if the

economist or consultant is under the

direction and control of an attorney

under the APO, or if the economist or

consultant appears regularly before the

Commission and represents an

interested party who is a party to the

investigation. 19 CFR 207.7(a)(3)(B) and

(C). Economists and consultants who

obtain access to BPI under the APO

under the direction and control of an

attorney nonetheless remain

individually responsible for complying

with the APO. In appropriate

circumstances, for example, an

economist under the direction and

control of an attorney may be held

responsible for a breach of the APO by

failing to redact APO information from

a document that is subsequently filed

with the Commission and served as a

public document. This is so even

though the attorney exercising direction

or control over the economist or

consultant may also be held responsible

for the breach of the APO.

III. Specific Investigations in Which

Breaches Were Found

The Commission presents the

following case studies to educate users

about the types of APO breaches found

by the Commission. The case studies

provide the factual background, the

actions taken by the Commission, and

the factors considered by the

Commission in determining the

appropriate actions. The Commission

has not included some of the specific

facts in the descriptions of

investigations where disclosure of such

facts could reveal the identity of a

particular breacher. Thus, in some

cases, apparent inconsistencies in the

facts set forth in this notice result from

the Commission’s inability to disclose

particular facts more fully.

Case 1. At the direction of the lead

attorney in an investigation, a law firm

secretary sent copies of a hearing

transcript to three of the law firm’s

clients who were nonsignatories to the

APO. The lead attorney became aware of

a potential breach of the APO when one

of the clients advised him that he had

received the in camera version of the

hearing transcript. The attorney made

arrangements to have one transcript

returned without being reviewed and a

second returned without the envelope

being opened. The attorney had Federal

Express intercept the third copy before

it was delivered; it was returned

unopened. The attorney informed the

Commission’s Secretary ten days after

becoming aware of the potential breach.

The Commission determined that the

lead attorney and a secretary had

breached the APO by transmitting the in

camera transcript of the Commission

hearing to persons who were not

signatories of the APO. In reaching its

decision to issue warning letters to the

attorney and the secretary, the

Commission considered that this was

the only breach in which they had been

involved, the breach was unintentional,

prompt action was taken to remedy the

breach, and there was no information

available to suggest that the BPI

disclosed was actually reviewed by

persons not already on the APO. In

addition, the Commission noted in the

warning letter to the secretary that she

had been acting under the direction of

an attorney. The 10-day delay in

advising the Commission of the breach

was mitigated by the fact that the

attorney had been out of the country

and prompt action had been taken to

retrieve the documents. Noting that the

breach arose from a systematic omission

of procedures at the law firm for

checking Commission documents for

BPI, the Commission recommended that

the attorney and the firm review their

practices for handling Commission

documents under the Commission’s

administrative protective order

procedures in order to prevent a

recurrence of this type of incident. The

Commission determined that the other

attorney in the law firm who was a

signatory of the APO did not breach the

APO.

Case 2. An attorney for a party to a

Commission investigation informed the

Commission by letter that a lead

attorney representing another party to

the investigation failed to comply with

the return or destruction requirements

of the APO. Specifically, the lead

attorney failed to destroy the APO

documents within 60 days after

completion of the investigation; he

failed to provide certification of

destruction from all attorneys in his

firm on the APO; and he provided a

certificate for an attorney who was not

on the APO. The lead attorney did file

a certificate of destruction more than

two years later than required by the

APO.

In responding to the Commission’s

letter of inquiry, the attorney admitted

that there had been a technical violation

of the APO, but he explained that the

material had been mistakenly retained

during the period that the Department of

Commerce investigation was under

appeal. During that time the material

had been secured in a locked file

cabinet, no unauthorized persons

viewed the material, and it was

destroyed promptly at the conclusion of

the Commerce appeal process. He also

explained that one attorney had left the

firm and was unavailable to provide a

certificate of destruction. The non-APO

attorney who had signed a certificate of

destruction actually had no access to the

APO materials.

The Commission determined that a

breach had occurred for failing to meet

the deadlines in the APO to return or

destroy and for failing to certify to the

destruction of the materials issued to

him under the APO. The Commission

noted that the deadlines in the APO are

clearly stated and the waiver of the 60-

day destruction or return deadline is

provided for only in the case of an

appeal of the Commission

determination, not for an appeal of a

Commerce determination. The

Commission issued a private letter of

reprimand to the attorney. The letter

dictated additional restrictions and

requirements with which the lead

attorney must comply until the record of

the breach is expunged, two years from

the date of the private letter of

reprimand. In reaching its decision on

the sanction, the Commission

considered that this was the third APO

breach by this attorney within a short

period of time and that this attorney

appears before the Commission on a

regular basis. Noting that the breach did

not appear to have involved willful

misbehavior or gross negligence, it was

decided that a public letter of reprimand

was not called for in that instance. The

attorney was warned, however, that if

he is found to have committed another

APO breach before his prior breaches

are expunged, the Commission would

consider a more public form of sanction.

Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Notices 30437

Case 3. Counsel in an investigation

filed the public version of a document

which contained BPI. The BPI had not

been bracketed in the confidential

version of the brief, and, therefore, was

not redacted from the public version of

the document. Once counsel became

aware of the potential breach, they

immediately contacted counsel

identified on both the public and APO

service lists and instructed them to

destroy the pages containing the

unredacted BPI. On the next business

day, counsel notified the Commission’s

Secretary of the possible breach and

filed corrected pages with the parties

and with the Commission.

The Commission determined that two

of the three attorneys who signed the

document breached the APO by failing

to redact BPI from a public version of

the document. In making its

determination to issue a private letter of

reprimand to the lead attorney, the

Commission considered that, although

the breaches appeared to have been

inadvertent and the attorney made

prompt efforts to limit the possibility of

disclosure to persons not already under

the APO, the attorney was involved in

multiple breaches over a relatively short

period.

In determining not to sanction the

second attorney, but instead to issue a

letter of warning to that attorney, the

Commission considered that this was

the only breach in which this attorney

had been involved, the breach was

unintentional, and that prompt action

was taken to remedy the breach.

The Commission determined that the

third attorney whose name appeared on

the document did not breach the APO

because he did not have any

responsibility in the preparation or

filing of the document.

Case 4. Counsel representing a party

to an investigation filed a public

document which contained a page from

which bracketed information had not

been redacted. Counsel discovered the

error, contacted the Commission’s

Office of the Secretary the morning after

the filing, and corrected the public

version of the document before it was

placed on file for public inspection.

Counsel stated in their affidavits that

the error was discovered and corrected

prior to service of the public version on

the other parties to the investigation, so

that no unauthorized person actually

saw business proprietary information. In

their response to the Commission

inquiry, counsel contended that no

breach occurred because, although the

information in question was bracketed

in the documents they cited, it was

publicly available from other sources.

The Commission determined that

three attorneys breached the APO. Two

of the attorneys failed to redact certain

bracketed information which contained

specific statements not publicly

available. They did not breach the APO

with regard to their failure to redact

information which was in the public

domain at the time they filed their

document with the Commission. The

Commission determined that the third

attorney, the lead attorney, breached the

APO by failing to provide adequate

supervision over the handling of BPI or

to delegate supervisory authority in a

reasonable manner. In determining to

issue private letters of reprimand to the

three attorneys, the Commission

considered that the one of the attorneys

was involved in three separate breaches

and two of the attorneys were involved

in two separate breaches of Commission

APOs within a short period of time.

Mitigating factors were that they

reported and corrected the breach

promptly and that the firm strengthened

its APO procedures subsequent to the

breaches. With regard to the lead

attorney, the Commission considered

that delegating final authority for APO

compliance to an attorney who had

committed two breaches over a short

period of time and a junior attorney who

had recently committed an APO breach

was not reasonable when there was

another experienced attorney available

who could have overseen their work.

Because one of the attorneys had been

involved in three separate breaches over

a short period of time and other

attorneys in his firm had also been

involved in multiple breaches during

the same period, the Commission

required that the attorney, prior to his

next appearance in a Commission

investigation, prepare and conduct an

APO compliance class for all firm

attorneys and staff, and submit to the

Commission any materials used in the

class and certifications that the class

occurred and that all such attorneys and

staff attended. The Commission

determined that an attorney and a law

clerk who were not involved in the

preparation of the document did not

breach the APO.

Case 5. An attorney and an economic

consultant representing a party in a

Commission investigation filed a public

document which contained unbracketed

and undeleted BPI. The potential breach

was discovered by both the Commission

staff and the counsel on the day the

document was filed, and counsel took

immediate action to retrieve all of the

service copies of the unbracketed

document and destroy them. The error

was discovered and remedial action was

taken quickly enough that the document

filed with the Commission was not

made available to the public either as

hard copy or through the electronic

system.

The Commission determined that the

attorney and the economic consultant

employed by the law firm had breached

the APO by not protecting BPI. They

mislabeled the document containing BPI

as public; they failed to place a warning

on each page of the document that

contained BPI; and they failed to bracket

the BPI and remove it from a public

version of the document. In reaching its

breach determination, the Commission

considered that failure to follow the

APO rules and thereby leaving BPI

unprotected and potentially available to

be disclosed is sufficient to constitute a

breach.

The Commission did not issue a

sanction but instead issued warning

letters to the attorney and economic

consultant. In reaching its decision on

sanctions, the Commission considered

that the breach was unintentional,

neither the attorney nor the economist

had previously breached a Commission

APO, and the law firm acted quickly to

mitigate any harmful effects of the

breach. The Commission determined

that two attorneys, one of whom was the

lead attorney, did not breach the APO

because they were not involved in the

preparation, review, signing or filing of

the document. In its letter to the lead

attorney, the Commission acknowledged

his immediate action to mitigate the

effects of the errors which led to the

breach.

Case 6. An associate with a law firm

representing a party to an investigation

prepared an outline of testimony for a

client/witness who was a nonsignatory

to the APO and, although he had been

advised earlier in the day by the lead

attorney that the information was BPI,

he included the BPI covered under the

APO in the outline. The associate then

sent an e-mail message to the client with

the outline as an attachment. The

potential breach was discovered by the

lead attorney when he reviewed the

outline the next day, and he

immediately took steps to retrieve and

replace the outline containing the BPI

before it was read by the nonsignatory

and to inform the Commission Secretary

of the potential breach.

The Commission determined that the

associate attorney breached the APO by

transmitting to a client who was not a

signatory to the APO a document which

he prepared that contained BPI. In

reaching its decision to issue a warning

letter, the Commission considered that

this was the only breach in which the

attorney was involved, that the breach

30438 Federal Register / Vol. 65, No. 92 / Thursday, May 11, 2000 / Notices

was unintentional, that prompt action

was taken to remedy the breach, and

that neither the client nor any other

non-signatory of the APO actually read

the document. The Commission

determined that the other attorneys on

the APO, including the lead attorney,

did not breach the APO because they

did not participate in the breach.

IV. Investigations in Which No Breach

Was Found

During 1999, the Commission

completed two investigations in which

no breach was found.

Case 1. An attorney in an

investigation filed a public version of a

document which contained bracketed

but unredacted information. The

bracketed information consisted of

citations to submissions by two parties

to the investigation which were

contained in a footnote of the document.

The Commission determined that the

attorney did not breach the APO by

failing to redact the information because

the information revealed was publicly

available, and the only information

which could be inferred from the

citations was otherwise publicly

available.

Case 2. An attorney in an

investigation obtained under an APO

release of documents a copy of a

telephone note containing a summary of

a conversation between a Commission

employee and an employee of the

Department of Commerce (Commerce).

The attorney called the Commerce

employee and discussed the contents of

the note with him. The Commerce

employee advised the Commission

employee of his concern that the

attorney’s call involved a possible

breach of the APO. The Commission

determined that the attorney did not

breach the APO because the Commerce

employee was the person who provided

the BPI to the Commission, and an

attorney’s discussion of information

released under the APO with the person

or agency from whom the BPI was

obtained is permissible.

Issued: May 5, 2000.

By order of the Commission.

Donna R. Koehnke,

Secretary.

[FR Doc. 00–11878 Filed 5–10–00; 8:45 am]

BILLING CODE 7020–02–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS No. 2065–00; AG Order No. 2302–2000]

RIN 1115–AE26

Extension of Designation of Honduras

Under Temporary Protected Status

Program

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Notice.

SUMMARY: This notice extends the

Attorney General’s designation of

Honduras under the Temporary

Protected Status (TPS) program until

July 5, 2001. Eligible nationals of

Honduras (or aliens having no

nationality who last habitually resided

in Honduras) may re-register for TPS

and an extension of employment

authorization. Re-registration is limited

to persons who registered during the

initial registration period, which ended

on August 20, 1999, or who registered

after the date under the late initial

registration provision. Persons who are

eligible for late initial registration may

register for TPS during this extension.

EFFECTIVE DATES: The extension of the

TPS designation for Honduras is

effective July 6, 2000, and will remain

in effect until July 5, 2001. The 30-day

re-registration period begins May 11,

2000 and will remain in effect until June

12, 2000.

FOR FURTHER INFORMATION CONTACT:

Michael Hardin, Residence and Status

Services Branch, Adjudications,

Immigration and Naturalization Service,

Room 3214, 425 I Street, NW.,

Washington, DC 20536, telephone (202)

514–4754.

SUPPLEMENTARY INFORMATION: 

What Authority Does the Attorney

General Have To Extend the

Designation of Honduras Under the TPS

Program?

Section 244(b)(3)(A) of the

Immigration and Nationality Act (Act)

states that at least 60 days before the

end of an extension or a designation, the

Attorney General must review

conditions in the designated foreign

state. 8 U.S.C. 1254a(b)(3)(A). If the

Attorney General determines that the

foreign state continues to meet the

conditions for designation, the period of

designation is extended, pursuant to

section 244(b)(3)(C) of the Act. 8 U.S.C.

1254a(b)(3)(C). Through such an

extension, TPS is available only to

persons who have been continuously

physically present since January 5,

1999, and have continuously resided in

the United States from December 30,

1998.

Why Did the Attorney General Decide

to Extend the TPS Designation for

Honduras?

On January 5, 1999, the Attorney

General initially designated Honduras

for TPS for a period of 18 months. 64

FR 524 (Jan. 5, 1999). The Departments

of State and Justice have recently

reviewed conditions within Honduras.

The review resulted in a consensus that

a 12-month extension is warranted. The

reasons for the extension are explained

in a State Department memorandum

that states: ‘‘The conditions which led

to the original designation are less

severe, but continue to cause substantial

disruption to living conditions in

Honduras.’’ The memorandum also

states that ‘‘[a]ccording to best

estimates, roughly half of the

destruction in Honduras remains

unaddressed, and 12,000 people remain

homeless while many more are in

temporary shelters.’’

The State Department memorandum

concludes that reconstruction efforts

should make significant progress during

the 2000 calendar year. An Immigration

and Naturalization Service

memorandum concurs with the State

Department, finding that Honduras has

made little progress in recovering from

Hurricane Mitch and that the minor

reconstruction that has taken place has

not sufficiently countered the

devastation to warrant the termination

of TPS. For example, the memorandum

reports that ‘‘[i]n many cases, survivors

of Mitch are in the same situation they

were in a year ago with estimates of

between 30,000 and 250,000 remaining

in temporary shelters surviving on

provisions from the World Food

Program.’’

Based on these recommendations, the

Attorney General finds the situation in

Honduras meets the conditions for

extension under section 244(b)(3)(C) of

the Act. 8 U.S.C. 1254a(b)(3)(C). There

continues to be a substantial, but

temporary, disruption of living

conditions in Honduras as a result of

environmental disaster, and Honduras

continues to be unable, temporarily, to

handle adequately the return of its

nationals. 8 U.S.C. 1254a(b)(1)(B)(i)–(ii).

Therefore, the review failed to show that

country conditions have improved to a

degree that supports termination. Even

in cases where conditions have

improved, the Act provides for

automatic extension in the absence of a

determination by the Attorney General

that country conditions no longer

support a TPS designation. Since the

Attorney General did not determine that