Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24391

DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Parts 351 and 354

[Docket No. 960123011–8040–02]

RIN 0625–AA43

Antidumping and Countervailing Duty

Proceedings: Administrative Protective

Order Procedures; Procedures for

Imposing Sanctions for Violation of a

Protective Order

AGENCY: International Trade

Administration, Commerce.

ACTION: Final rule.

SUMMARY: The Department of Commerce

(‘‘the Department’’) is amending its

regulations on administrative protective

order (‘‘APO’’) procedures in

antidumping and countervailing duty

proceedings to simplify and streamline

the APO administrative process and

reduce the administrative burdens on

the Department and trade practitioners.

The Department is also amending the

regulations to simplify the procedures

for investigating alleged violations of

APOs and the imposition of sanctions.

These changes are made in response to

and in cooperation with the trade

practitioners that are subject to these

rules.

EFFECTIVE DATE: The effective date of

this final rule is June 3, 1998. This final

rule will apply to all investigations

initiated on the basis of petitions filed

on or after June 3, 1998, and other

segments of proceedings initiated after

this date.

FOR FURTHER INFORMATION CONTACT: For

further information contact Joan L.

MacKenzie or Mark A. Barnett, Office of

Chief Counsel for Import

Administration, (202) 482–1310 or (202)

482–2866, respectively.

SUPPLEMENTARY INFORMATION:

General Background

APO Procedures

On February 8, 1996, the Department

published proposed rules governing

procedures for providing access to

business proprietary information

submitted to the Department by other

parties in U.S. antidumping (‘‘AD’’) and

countervailing duty (‘‘CVD’’)

proceedings. Proposed Rule and Request

for Comment (Antidumping and

Countervailing Duty Proceedings;

Administrative Protective Order

Procedures; Procedures for Imposing

Sanctions for Violations of a Protective

Order), 61 FR 4826 (‘‘February Notice’’).

See also, Proposed Changes to

Administrative Protective Order

Procedures in Antidumping and

Countervailing Duty Proceedings, APO

Application Form and Standard APO,

59 FR 51559 (October 12, 1994)

(‘‘October Notice’’).

The Department proposed these

changes in APO procedures in

consultation with trade practitioners,

who are the ones most directly affected

by these procedures. Specifically,

Department staff consulted with

representatives of the International Law

Section of the District of Columbia Bar,

the International Trade Committee of

the Section of International Law and

Practice of the American Bar

Association, the ITC Trial Lawyers

Association, and the Customs and

International Trade Bar Association. As

a result of the consultations, the

Department proposed changes in the

APO process to improve the process, to

simplify and streamline the process for

all concerned, including the

Department, and at the same time to

continue to ensure protection of

business proprietary information from

unauthorized disclosure.

After analyzing and carefully

considering all of the comments that the

Department received in response to the

February Notice and after further review

of the provisions of the proposed rule,

the Department is publishing final

regulations. These regulations improve,

simplify, and streamline the APO

process significantly and, at the same

time, protect business proprietary

information from unauthorized

disclosure.

Effective Date

The new APO procedures, including

the use of the revised application for

APO, form ITA–367 (5.98), will become

effective June 3, 1998. They will apply

to all investigations initiated on the

basis of petitions filed on or after June

3, 1998, and other segments of

proceedings initiated after this date.

Segments of proceedings to which these

regulations do not apply will continue

to be governed by the regulations in

effect on the date the petitions were

filed or other segments were initiated, to

the extent that those regulations were

not invalidated by the URAA or

replaced by the interim final regulations

published on May 11, 1995 (60 FR

25130 (1995)) and § 351.105 of the AD/

CVD procedural regulations that the

Department published separately on

May 19, 1997 (62 FR 27296),

(hereinafter referred to as the May 19

Regulations). In these segments of

proceedings, the Department will

require that parties use the old APO

application form ITA–367 (3.89) for all

requests to amend their existing APOs.

If all parties in these segments of

proceedings mutually agree to be bound

by the new APO regulations and

procedures, the parties must file a joint

agreement and new applications for

APO.

APO Sanctions

The Department is also amending its

regulations concerning sanctions for

violations of APOs. The regulations

governing the imposition of sanctions

for APO violations are set forth at 19

CFR Part 354. In the nine years since

Part 354 was introduced, the

Department has investigated and

resolved numerous allegations of

violations of APOs. Most charges have

been settled, and none has resulted in

a hearing before a presiding official or

a decision by the APO Sanctions Board.

Experience also has proven that, even if

an individual has technically violated

the terms of an APO, it is not always

appropriate to impose a sanction.

Rather, a warning may be appropriate in

many instances. The Department also

has found that situations arise in which

the investigation can be shortened

without limiting procedural rights.

Additionally, under current regulations,

it is unduly cumbersome to withdraw

charges when the Department

determines that they are not warranted.

Finally, the Department recognizes that

an individual with prior violations

deserves to have his or her record

cleared after a period of time without

further violations. Therefore, the

Department is amending Part 354 of its

regulations to articulate a standard for

issuance of a warning of an APO

violation and to address the other

situations described above.

The Department is amending the

regulations to simplify the procedures

for investigating alleged violations and

the imposition of sanctions, establish

criteria for abbreviating the

investigation of an alleged violation,

include private letters of reprimand

among the sanctions available, and set

a policy for determining when the

Department issues warnings instead of

sanctions. Further, the Department is

revising the provisions dealing with

settlement to make them consistent with

practice. The Department also is

simplifying the procedures for

withdrawing charging letters. Finally,

the amendments add a sunset provision

that codifies existing practice regarding

the rescission of charging letters.
24392 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

Explanation of Particular Provisions

APO Procedures

The Department’s AD regulations

were contained in 19 CFR Part 353 and

its CVD regulations were contained in

19 CFR Part 355. Parts 353 and 355 each

contained separate provisions dealing

with the treatment of business

proprietary information and APO

procedures. The Department

consolidated the AD and CVD

regulations and repealed existing Parts

353 and 355. See Antidumping Duties;

Countervailing Duties; Final rule, 62 FR

27295 (May 19, 1997). We have drafted

the regulations dealing with APO

procedures in light of this

consolidation. Accordingly, these

regulations will be contained in 19 CFR

Part 351, subpart C. More specifically,

with the exception of the definitional

provisions of § 351.102, the APO

procedures will be contained in 19 CFR

351.304, 305, and 306. The procedures

for imposing sanctions for violation of a

protective order are contained in 19 CFR

354.

Definitions

Section 351.102 is a definitional

section, based on previous 19 CFR 353.2

and 355.2. It was published separately

with the May 19 regulations. Insofar as

APO procedures are concerned, we

added definitions of two new terms,

now contained in the administrative

protective order. Because these

definitions apply to APO procedures,

we are discussing them here.

The first term, applicant, is defined as

an individual representative of an

interested party that has applied for

access to business proprietary

information under an APO. The second

term, ‘‘authorized applicant,’’ is defined

as an applicant that the Secretary has

authorized to receive business

proprietary information under an APO,

and is a term borrowed from the

practice of the U.S. International Trade

Commission (‘‘ITC’’).

One commenter noted that the

definition of ‘‘applicant’’ contained in

the Proposed AD/CVD Procedural

Regulations was inconsistent with the

description of that definition in the

preamble to the February Notice. This

commenter also suggested that a

definition of ‘‘representative’’ be added

to the regulations.

We revised the definition of

‘‘applicant’’ to make it consistent with

the description of that term provided

above. The term ‘‘representative’’ was

defined in the model APO published

with the February Notice. We have

revised that definition to refer to an

individual, enterprise or entity acting on

behalf of an interested party.

Administrative Protective Order Unit

and Central Records Unit

Section 351.103 defines the

responsibilities of the Central Records

Unit and the Administrative Protective

Order Unit, both of which play a role

protecting business proprietary

information. The APO Unit was

established with the reorganization of

the Department that became effective

July 1, 1996. Under the reorganization,

the APO function is consolidated under

the Director for Policy and Analysis,

and is managed by a Senior APO

Specialist who leads the APO Unit. The

Senior APO Specialist is responsible for

directing the Department’s handling of

business proprietary information.

The Administrative Protective Order

Unit and the Dockets Center of the

Central Records Unit have recently been

relocated to shared space in room 1870.

Because of the proximity of the two

offices, business proprietary information

released by the APO Unit to authorized

representatives is conducted through

the Dockets Center. Because the

relocation of the Dockets Center

occurred after the publication of the

AD/CVD procedural regulations, we are

taking this opportunity to amend

§ 351.103 to reflect these changes.

Pursuant to Presidential order, security

has been increased in Federal office

buildings and delivery couriers are no

longer permitted access to the Herbert C.

Hoover Building (HCHB). Consequently,

Import Administration has created the

Dockets Center in Room 1870. The

Dockets Center is accessible directly

from the 15th Street courier’s entrance

to HCHB. Prior to being allowed in the

building at this entrance all packages

are scanned by Departmental security

personnel. APO materials are picked up

at this entrance from the APO Unit.

Section 351.304 Establishing Business

Proprietary Treatment of Information.

Section 351.304 sets forth rules

concerning the treatment of business

proprietary information in general, and

provides persons with the right to

request that certain information be

considered business proprietary or be

exempt from disclosure under APO.

Customer Names

One commenter noted that section

777(c)(1)(A) of the Tariff Act of 1930, as

amended, (‘‘Act’’) protects customer

names from disclosure under APO in an

investigation only until an order is

published or the investigation is

suspended or terminated, and suggested

that the regulation should be revised to

reflect this. We have not revised the

regulation. The statute does not require

the Department to disclose customer

names under APO following publication

of an order or following suspension or

termination of the investigation. If the

Department’s final determination is

challenged, parties may obtain access to

customer names under the terms of a

judicial protective order. Absent such

litigation, we do not believe it necessary

or appropriate to require parties to

disclose additional information under

protective order after an investigation

has been completed, suspended or

terminated.

Identification of Business Proprietary

Information

Paragraph (b) of § 351.304 addresses

the identification and marking of

business proprietary information in

submissions to the Department.

One commenter argued that the

Department should clarify how the

requirement to mark business

proprietary information applies to

materials in exhibits such as printouts,

drawings, photographs, excerpts from

brochures and other similar materials.

The commenter pointed out that such

materials are not always clearly

identified as business proprietary,

leaving the recipient to refer to the

public version to determine whether

any particular data are in fact claimed

to be confidential.

The Department agrees that all

business proprietary information should

be marked in accordance with the

regulations. This includes all

verification exhibits. It is in the interest

of all parties to prevent inadvertent APO

violations that can occur when marking

is incomplete or inaccurate. We

recognize that marking printouts and

voluminous exhibits presents

challenges. Printouts may consist almost

entirely of business proprietary

information, with public information

limited to certain headings or fields. In

such cases, it may be easier for an

authorized applicant to distinguish

between public and proprietary

information by reviewing the public

version rather than searching for

brackets in a document that contains

nearly all business proprietary

information. Moreover, because

bracketing may be revised by a party

within one day of the date of filing (see

below), authorized applicants are

encouraged to confirm their

identification of public information by

comparison to the public version source

in order to avoid an inadvertent release

of business proprietary information.

If a party objects to the submitting

person’s claim for business proprietary
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24393

treatment, the objection must be

submitted in writing. The APO Unit is

the point of contact for examining and

resolving the issue whether information

that is claimed as proprietary meets the

standards in § 351.105 of the AD/CVD

procedural regulations that the

Department published separately on

May 19, 1997.

Public Versions

Paragraph (c) of § 351.304 concerns

the public version of a business

proprietary submission, provides for a

one-day lag rule (see also

§ 351.303(c)(2)), and addresses

corrections to errors in bracketing

business proprietary information. We

reiterate that the Secretary will enforce

vigorously the requirement for public

summaries, and will grant claims that

summarization is impossible only in

exceptional circumstances. To assist in

ensuring consistent enforcement of the

Department’s requirements for public

summarization of numerical data and

narrative portions of submissions, the

APO Unit is the point of contact for

examining and resolving complaints

about inadequate public summaries.

One-Day Lag Rule

The one-day lag rule follows existing

practice by permitting parties to file a

public version of a document containing

business proprietary information one

business day after the due date of the

business proprietary version of the

document. This practice is known as the

‘‘one-day lag’’ rule. Under current

practice, submitting persons may correct

the bracketing of information in the

business proprietary version up to the

deadline for submission of the public

version (i.e., they have one day in which

to correct bracketing). The Department

proposed to slightly modify the one-day

lag rule to require a party to file the final

business proprietary version of the

document at the same time as the

submitting party files the public version

of the document. The specific filing

requirements are contained in § 351.303

of the AD/CVD Procedural Regulations

that the Department published

separately on May 19, 1997. Comments

on this provision were addressed in

those regulations.

One commenter expressed concern

regarding improper disclosure of APO

protected information and the

Department’s statement that nonbracketed information will be treated as

public information once bracketing has

become final. We believe, however, that

the commenter misunderstood the

Department’s statement. The statement

only pertains to a party’s own business

proprietary information contained in a

document it has submitted. The

Department will always take and require

immediate corrective action when

information subject to an APO has been

improperly disclosed and discovered in

a reasonable amount of time.

Summarization of Numerical Data

One commenter argued that public

summarization of numerical data should

not be required, because the ITC does

not require it. Other commenters

requested that specific guidelines for

summarization of numerical data be

included in the regulation. Some

commenters requested greater flexibility

in ranging numbers that are very large

or very small.

As one commenter recognized, a

public summary, which is addressed in

paragraph (c)(1), is required by section

777(b)(1)(B) of the Act and Article 6.5.1

of the Agreement on Implementation of

Article VI of the General Agreement on

Tariffs and Trade 1994 (‘‘AD

Agreement’’). Public summarization of

numerical data is crucial to the ability

of parties to participate in the

Department’s proceedings. Without

adequate public summarization,

interested parties without APO access

will not be able to participate

meaningfully in the Department’s

proceedings. The Department, therefore,

will continue to require summarization

of numerical data.

While there may be some benefits to

consistent treatment of business

proprietary information between the

Department and the ITC, there are

differences in each agency’s mission

that justify individual practices.

Summarization of company-specific

numerical information at the ITC is

more difficult because the information

concerns a company’s performance

using ‘‘macro’’ numbers and projected

data. Moreover, in most cases, the ITC

provides aggregate data where such

information would not reveal an

individual company’s business

proprietary information. It is this

aggregate data, which is often available

to the public, which is most relevant to

the ITC’s analysis and determinations.

Information in the Department’s

proceedings, on the other hand, is often

transaction-specific, ‘‘micro’’

information. Such information would be

difficult to aggregate across companies

and such aggregate data would be of

almost no relevance to the Department’s

analysis and the public’s understanding

of that analysis. Therefore, it is

preferable to continue to require that

such information be ranged or indexed.

Omission of specific criteria for

public summarization of numerical data

previously contained in §§ 353.32(b)(1)

and 355.32(b)(1) was an oversight. We

are including the criteria for adequate

summarization in § 351.304(c)(1) of

these regulations. The Department has

always allowed an exception to the

public summarization requirement

when it does not protect business

proprietary information from disclosure,

such as with very small or very large

numbers. We will continue to permit

such exceptions on a case-by-case basis

in accordance with the requirements of

§ 351.304(c)(1).

Summarization of Narrative Portions of

Submissions

One commenter argued that requiring

a public summary of the narrative

portion of a submission is a change in

policy not required by the Uruguay

Round Agreements Act (URAA) and is

too burdensome. The commenter

asserted that the proposed regulation

will add hundreds of hours and

thousands of dollars to the costs of

participating in these cases. Finally, the

commenter stated that the proposed

regulation appears to create a

presumption that all business

proprietary information is public unless

proven otherwise, which reverses

agency practice designed to protect

business proprietary information against

disclosure.

The commenter is mistaken that the

Department’s regulation constitutes a

change in practice. The Department has

consistently required a public summary

of the narrative portion of a submission

containing business proprietary

information.

Laws affecting disclosure of

information by the federal government

generally are pro-disclosure. The United

States has the most transparent

antidumping and countervailing duty

procedures in the world. Protection of

business proprietary information is a

narrow exception to the requirement for

disclosure and the preference for

transparency. For these reasons, the

regulations require parties to

demonstrate that business proprietary

information should be withheld from

disclosure, rather than the reverse.

There is a presumption that business

proprietary information can be publicly

summarized to permit meaningful

participation by a party that does not

have access to business proprietary

information under APO.

Summarization of Business Proprietary

Information of Other Parties

Three commenters raised concerns

whether § 351.304(c)(1) requires

authorized applicants to create public

summaries of business proprietary

information submitted by other parties.
24394 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

It does not. The Department has never

required authorized applicants to

publicly summarize the business

proprietary information of another party

and the Department does not intend to

change that practice. In fact, § 351.304

(c)(1) states that a submitter should not

create a public summary of business

proprietary information of another

person.

Nonconforming Submissions

Paragraph (d) of § 351.304 deals with

nonconforming submissions, i.e.,

submissions that do not conform to the

requirements of section 777(b) of the

Act and paragraphs (a), (b), and (c) of

§ 351.304.

One commenter expressed concern

that this provision might be abused by

parties making unwarranted claims of a

clear and compelling need to withhold

business proprietary information from

disclosure under APO merely to delay

release of that information and thereby

imperil the ability of other parties to

participate in the proceeding in a timely

fashion. Although we appreciate the

concerns of the commenter, we do not

believe that revision of the regulation is

necessary. In most cases, the

Department has been able to make

determinations as to the status of

information in much less than 30 days,

and we expect that to continue to be the

case. As written, the regulation provides

greater flexibility for those

determinations which may require more

time for decision.

The Department does not believe that

the regulation, as drafted, will lead to

significant abuse. The Department’s

current experience has involved few

situations of abuse. To the extent that

baseless claims for non-release of

information do occur, the Department

retains the authority to deal with them

expeditiously.

Another commenter proposed that the

Department amend this regulation to

permit the Secretary to return any part

of a submission that does not meet the

requirements of the regulations. We do

not agree. For the same reasons the

Department revised the one-day lag rule

to require a new complete submission of

a document that required correction, we

also will require a complete new

submission of any document returned

because parts of it are defective.

Section 351.305 Access to Business

Proprietary Information

Section 351.305 establishes

procedures for obtaining business

proprietary information under APO,

including a new procedure based on the

use of a single APO for each segment of

a proceeding.

The Revised APO

Paragraph (a) of § 351.305 sets forth a

new procedure in which the Secretary

will place a single APO on the record

for each segment of an AD or CVD

proceeding, within two days after a

petition is filed, or an investigation is

self-initiated, or five days after the

initiation of any other segment.

(‘‘Segment of the proceeding’’ is defined

in § 351.102 as a portion of the

proceeding that is reviewable under

section 516A of the Act.) All authorized

applicants will be subject to the terms

of this single APO. This new procedure

will streamline the APO process

dramatically, and will expedite the

issuance of APOs and the disclosure of

information to authorized applicants.

Commenters strongly endorsed this new

procedure, and agree it will streamline

the APO process and expedite the

issuance of APOs and the disclosure of

information to authorized applicants.

APO Requirements

Paragraph (a) of § 351.305 also sets

forth the requirements that are to be

included in the APO and to which all

authorized applicants must adhere. The

Department proposed to eliminate from

the APO detailed internal procedures

that firms were required to follow to

protect APO information from

unauthorized disclosure. In paragraph

(a)(1), the Department proposed to

permit each applicant to establish its

own internal procedures. All

commenters agreed with this proposal,

and we have adopted it in these final

regulations.

Notification of Change of Facts

Paragraph (a)(2) of § 351.305 requires

an authorized applicant to notify the

Secretary of any changes in the facts

asserted by the authorized applicant in

its APO application. Paragraph (a)(2)

does not require certification of these

facts. Paragraph 6 of the proposed APO,

however, would have required the

authorized applicant to provide, at the

conclusion of a segment of the

proceeding, upon the departure of an

authorized applicant from a firm, or

when an individual no longer will have

access to APO information, a

certification that attests to the

individual’s compliance with the terms

under which such access is granted.

Two commenters questioned the

necessity for such individual

certifications. They argued that the

thrust of the Department’s new rules is

to permit firms to develop their own

internal procedures to protect business

proprietary information, rather than for

the Department to ‘‘micro-manage’’ APO

issues. Thus, they asserted, firms will

have internal procedures to ensure that

persons leaving a firm, for example,

destroy or return any documents

containing business proprietary

information. They point out that under

the procedure proposed by the

Department, applicants already sign an

APO application individually, and the

additional certification is therefore

superfluous. Moreover, commenters

argued, the Court of International

Trade’s (CIT) judicial protective orders

permit a single certification, and there is

no reason to follow two different

procedures for appellate and

administrative proceedings.

The Department agrees. Paragraph

(a)(2) continues to require a party to

notify the Department of any changes in

the facts asserted by an authorized

applicant in its application, but we have

deleted the requirement for certification

at the end of the proceeding segment in

paragraph 6 of the APO. Authorized

applicants are required to notify the

Department of any possible violation of

the APO; the additional certification is

redundant. The Department presumes

all authorized applicants are complying

with the terms of the APO until we

determine through an investigation

under Part 354 that a violation of an

APO has occurred. Thus we have

retained the requirement that parties

notify the Department and other parties

of changes, but have removed from

paragraph 6 of the APO the requirement

that every individual certify its

compliance with the regulations at the

close of the person’s participation under

the APO.

Notification of Destruction of Business

Proprietary Information

Paragraph (a)(4), now renumbered as

paragraph (a)(3), of § 351.305 requires

the destruction of business proprietary

information when a party is no longer

entitled to it, normally at the close of a

segment of a proceeding. Paragraph 7 of

the APO also required an individual

certification from each authorized

applicant that it complied with the

terms of the APO. For the reasons stated

above, we agree this certification is

unnecessary. We presume that an

authorized applicant will comply with

the terms of the APO requiring

destruction of business proprietary

information at a designated time.

We will continue to require, however,

notification to the Department of

destruction of business proprietary

information. Parties will be able to keep

certain business proprietary information

for more than one segment of a

proceeding, and discipline in tracking

and destroying information is more
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24395

important than ever. Therefore the

Department will continue to hold

parties accountable for timely

destruction of material when no longer

authorized by the APO to have it.

One commenter suggested that the

failure to return or destroy APO material

is a procedural issue and should not be

viewed as constituting a violation of the

APO if not satisfied. We disagree. Until

business proprietary information is

destroyed, there is a risk of disclosure.

The destruction of business proprietary

information material is important to

prevent unauthorized disclosure. It is

one of the few specific requirements in

the regulations. While the failure to

return or destroy may not result in

actual disclosure of business proprietary

information, and in certain

circumstances may only result in a

warning, it is clearly a violation of the

regulations and the APO.

The Department proposed that an

authorized applicant be required to

destroy business proprietary

information that the applicant is not

authorized to retain within a thirty-day

time period after the expiration of the

time for filing for a judicial or binational

panel review of the last segment for

which the authorized applicant may

retain the information. Thirty days

should cover most contingencies, but

the Department will be willing to grant

extensions for good cause shown.

Commenters supported this proposal

and we will incorporate it into each

APO, which will set specific deadlines

on a case-by-case basis.

Electronic Data

Paragraph 3 of the APO places one

restriction on the use of business

proprietary information contained in

electronic form; the information can not

be accessible by a modem. We are

restricting access to electronic

information by modem, but not

requiring any specific technical

restrictions, instead leaving the method

to be used to the individual authorized

applicant. This proposal was supported

by commenters. Commenters suggested

a revision of the language of the

paragraph to clarify this requirement,

which we have incorporated into

paragraph 3 of the APO.

Independent Contractors

The definition of ‘‘support staff’’

contained in the APO permits the use of

independent contractors to perform

photocopying and other production

tasks involving APO information,

provided that the independent

contractors perform their work on the

premises of the authorized applicant

(e.g., at the firm), and the independent

contractors work under the supervision

of an authorized applicant.

Commenters requested a clarification

that the Department also will allow

parties to use employees or

subcontracted individuals (e.g., courier

services) to pick up or deliver APO

information released by the Department,

and to deliver APO information to other

parties. One commenter also requested

a clarification that ‘‘independent

contractors’’ includes part-time

employees. We agree that support staff

and independent contractors can be

used for all delivery functions and that

‘‘independent contractors’’ includes

part-time employees.

In order to guard against unauthorized

disclosure, however, the Department

will continue its current practice of

releasing APO information only if the

employee or independent contractor

presents a picture ID and a letter of

identification from the firm of the

authorized applicant that authorizes the

Department to release the APO

information to that particular

individual.

Remand Proceedings

The Department proposed that the

APO permit access to new business

proprietary information submitted in

the course of a remand during litigation

involving the segment of the proceeding

in which the initial APO was issued.

Parties no longer will have to apply

separately for access under an APO

during a remand proceeding.

Commenters supported this proposal.

The APO issued in each proceeding will

reflect this practice.

APO Applications

Paragraph (b) of § 351.305 deals with

the APO application process itself,

including permitting parties to use two

independent representatives.

Multiple Authorized Applicants

Under current practice, the

Department generally allows only one

representative of a party to have access

to business proprietary information

under an APO. In response to requests

from parties to proceedings, the

Department proposed that two

independent representatives of a party

be allowed APO access, with one

representative being designated as the

lead representative. We also proposed

granting APOs separately to non-legal

representatives, who otherwise qualify

to receive an APO, only if they had a

significant practice before the

Department. The purpose of this

proposal was to ensure that effective

sanctions could be imposed to deter

APO violations. The Department will

consider requests that more than two

independent representatives be

designated as authorized applicants on

a case-by-case basis.

Commenters agreed with this

proposal, and requested that the

Department clarify that the lead

authorized applicant will not be liable

for APO infractions committed by a

separately authorized applicant. We

agree. Authorized applicants are

responsible for violations committed by

any person in the same firm, but not for

violations committed by an individual

at another entity that applied for APO

access separately. The lead

representative would not be responsible

for APO violations committed by the

separately authorized applicant.

Application for an APO

Paragraph (b)(2) of § 351.305

establishes a ‘‘short form’’ application

that applicants can generate from their

own word-processing equipment. An

applicant must acknowledge that any

discrepancies between the application

and the Department’s APO placed on

the record will be interpreted in a

manner consistent with the

Department’s APO. Parties agreed with

this proposal and we have adopted it in

paragraph (b)(2).

APO Application Coverage

Paragraph (b)(2) of § 351.305 also

provides that an applicant must apply to

receive all business proprietary

information on the record of the

particular segment of the proceeding in

question. A party no longer may apply

to receive only selected parties’ business

proprietary information. The purpose of

this requirement is to eliminate the need

for parties to prepare separate APO

versions of submissions for each of the

different parties involved in a

proceeding and to reduce the number of

APO violations that occur through the

inadvertent service of a document

containing business proprietary

information to parties not authorized to

receive it. In order to avoid forcing

parties to receive submissions in which

they have no interest, however, a party

may waive service of business

proprietary information it does not wish

to have served on it by another party.

Thus, for example, Respondent A may

waive its right to be served with a copy

of the business proprietary version of

Respondent B’s questionnaire response.

Nonetheless, if Respondent A receives

any of respondent B’s proprietary

information from any party by mistake,

no APO violation will have occurred.

Commenters generally supported the

proposal, because it eases the burden on
24396 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

submitters and reduces the likelihood of

inadvertent APO violations.

One commenter strongly objected to

the proposal as inconsistent with

section 777 of the Act and burdensome

on respondents. The commenter

asserted that substitution of a waiver

procedure for party-specific

submissions is inadequate because

respondents are nonetheless required to

accept submissions by petitioners that

contain the business proprietary

information of several parties, including

business proprietary information that

the respondents may have had no

reason to request. It asserted that by

requiring respondents’ representatives

to accept from petitioners’

representatives documents containing

multi-party business proprietary

information, the Department is

unnecessarily shifting the burden and

responsibility of complying with APO

procedures from petitioners to

respondents. Furthermore, where

counsel is served a business proprietary

document and then redacts only certain

portions designated confidential by the

filing party before transmitting the

document to his client, there is no check

on whether a proper redaction has been

made. Neither the Department nor other

parties have access to, or even

knowledge of, the specially redacted

version, and this procedure will

heighten the risk of inadvertent

disclosure of business proprietary

information. Instead, the commenter

argues, if the public summaries

prepared by parties meet Commerce

guidelines, the information contained in

any public version of a filed document

should be sufficient to inform a party

already knowledgeable of the

proprietary data represented by the

public summary.

The Department recognizes that these

rules place a new burden on a

representative to ensure that when it

receives a submission with business

proprietary information from multiple

parties, it takes steps to ensure no

business proprietary information of

another party is disclosed to its client.

Each authorized applicant has pledged

to do this when he or she signs the

application for access to business

proprietary information under an APO.

The rules mitigate this additional

burden by requiring parties to clearly

identify the person to whom each item

of business proprietary information

pertains. Although adequate public

summaries are helpful, they are not a

substitute for a full discussion of a

party’s own business proprietary

information. Public summaries serve to

assist a party’s participation where other

parties’ business proprietary

information is involved.

Nothing in the statute prohibits these

procedures. Section 777 of the Act

requires the Department to ‘‘make all

business proprietary information

presented to, or obtained by it, during

a proceeding * * * available to

interested parties who are parties to the

proceeding under a protective order

* * *.’’ On balance, we believe the

procedures adopted will spread the

burden for protecting business

proprietary information and reduce

inadvertent disclosure of business

proprietary information.

Deadline for Application for APO

Access

Paragraph (b)(3) of § 351.305 concerns

the deadline for applying for access to

business proprietary information under

APO. In deciding the question of APO

application deadlines, the Department

balances the need to provide maximum

access by parties to APO information

with the need to minimize the burden

on the Department in processing APO

applications, as well as the burden on

parties and the Department that have to

serve late applicants with APO

information placed on the record before

a late APO is granted. We proposed in

paragraph (b)(3) to encourage parties to

submit APO applications before the first

questionnaire response is filed, but to

permit parties to submit applications up

to the date on which case briefs are due.

Two commenters requested that the

Department have no deadline for APO

applications. They did not provide any

reason why a representative would need

to have access to the entire record after

the time case briefs are filed. Under

§ 351.309(b), which was published

separately with the May 19 regulations,

written argument will not be accepted

after case or rebuttal briefs are filed

unless requested by the Secretary. A

party can always provide a

representative with the party’s own

data, and represent the party before the

Department during disclosure of that

party’s calculations. Providing a new

representative with a record after the

close of comments would be unduly

burdensome for the Department staff

which has extremely tight deadlines for

issuing the final determination. A

representative can obtain the entire

record under judicial protective order

during litigation if necessary. Therefore,

we have incorporated the proposed

deadline, the day case briefs are due,

into the regulations.

We also have taken into account the

burden imposed on parties by APO

applications that are filed after major

submissions have been made by other

parties to the proceeding. Under current

rules, parties have only two days in

which to serve an authorized applicant

that obtained its APO late in the

proceeding with APO information that

already has been placed on the record.

Under the deadline set forth in

paragraph (b)(3), the burden on parties

may increase. We therefore proposed

that parties have five days in which to

serve late APO applicants. In addition,

we required that late applicants be

required to pay the costs associated with

the additional production and service of

business proprietary submissions that

were served on other parties earlier in

the proceeding. Commenters supported

these proposals and they are

incorporated into § 351.301, which was

published separately.

The Department reemphasizes that it

will not allow an APO application filed

later in the proceeding to serve as the

basis for extending any administrative

deadline, such as a briefing or hearing

schedule.

Approval of the APO Application and

the APO Service List

Paragraph (c) of § 351.305 deals with

the approval of an APO application. The

Department proposed to approve an

application within two days of its

receipt in an investigation and within

five days in other AD and CVD

proceedings, unless there is a question

concerning the eligibility of an

applicant to receive access under APO.

In that case, the Secretary will decide

whether to approve the application

within 30 days of receipt of the

application. We amended the regulation

to provide for a single five-day deadline

to provide parties a reasonable time to

comment on applications in all

instances.

Commenters generally supported the

Department’s proposal because it will

facilitate the timely completion of

investigations and administrative

reviews by providing expedited access

to business proprietary information to

all parties to a proceeding. They

suggested that the Department’s

regulations also indicate that similarly

expedited treatment will be provided to

applications for amendments to APOs.

The Department considers an

application for an amendment to be

subject to the same procedures as the

original application.

Some commenters expressed concern

that approving APO applications so

quickly may create problems. In many

cases, the APO application will be

served by mail on other interested

parties, and commenters were

concerned that the Department could

approve the application before the
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24397

parties have an opportunity to comment

on it. When the APO material is already

in the hands of an approved applicant

who has filed for access for additional

individuals, commenters asserted it is

imperative that parties be informed of

the existence of the amended

application, and be given time to react,

before APO material is released to any

additional individuals. The problem is

of special concern to commenters if the

application seeks to add in-house

counsel to the APO.

Although the Department agrees that

the concerns raised by these

commenters have merit, we must

balance these concerns with the need of

applicants to receive APO material

expeditiously. We note that the

Department rarely receives objections to

applications to amend APOs. However,

in recognition of the concerns raised, we

intend to approve applications to amend

the Department’s APO service list to

include an additional authorized

applicant at the end of the five-day

period. If a representative wishes to

have its amendment approved before

the five-day deadline, it should submit

its application with a statement that all

other parties to the proceeding have

consented to the application.

Commenters proposed that if the APO

applicant needs immediate access,

service on the other parties could be

made by hand delivery or overnight

mail, by facsimile, or by E-mail.

Alternatively, the applicant could file

the application as a ‘‘consent motion’’.

If there is no need for immediate access,

commenters proposed that parties be

permitted to serve by mail and that

Department approval be held for five

days to ensure that the other parties

have had an opportunity to respond.

Commenters also proposed that the

regulations also should state that

objections to applications must be filed

within two days of receipt of the

application and served by hand on the

applicant.

One commenter, on the other hand,

was concerned that parties to a case

should not be able to delay release of

proprietary documents merely by the

objection, on whatever grounds, to the

eligibility of an applicant to obtain

information. Rather, the commenter

proposed that the Department enunciate

certain grounds that might serve as the

proper basis for an objection, such as

affiliation with the party in question,

prior violations of protective orders or

other ethical rules, or a potential

conflict of interest that exists based on

work done either within the government

or at another firm involving the same or

a similar matter. Commenters did not

want parties to have the opportunity to

delay approval of applications by minor

objections, such as an objection to the

number of applicants.

The Department recognizes that the

current regulations permit a party to

hand-serve an APO application (or an

application for an amendment to the

APO service list) on the Department,

while serving the parties by mail. The

Department could approve an

application before parties even received

notice that the application had been

filed. We are therefore revising

§ 351.305(b)(2) to require parties to

serve an APO application (including

applications for amendments) on the

Department and on the parties in the

same manner, whether by hand or by

mail. We are also extending the

deadline in § 351.305(c) for approving

an APO application (including an

application to amend the APO service

list) to five days from two for all

segments of proceedings. These

procedures should provide expedited

approval of APO access while

preserving the rights of parties to

comment on APO applications.

Although the Department may approve

an APO application on or before the

five-day deadline, a party objecting to

an APO application may elect not to

serve its business proprietary

information on the applicant to which it

is objecting until the Department has

addressed the objection and has made a

decision whether to grant the applicant

access to the objecting party’s

proprietary information.

There are few bases on which a party

can legitimately object to granting an

APO so long as the applicant meets the

conditions established in the APO

application and APO. An objection

based on the number of applicants

would generally be considered

frivolous; the Department does not

interfere with a party’s choice of

representation or staffing. The only area

where Import Administration has the

authority to deny an individual the right

to practice before it involves a finding,

pursuant to our very detailed APO

violation regulations, that a party has

violated a protective order and that the

violation warrants the extreme sanction

of a ban from practice before Import

Administration. An allegation in this

area would require a detailed

investigation. The restriction on practice

before the Department because of an

APO violation would be imposed

through the APO violation proceeding,

not through an objection to an APO

application.

Import Administration does not have

authority to address the postemployment restrictions contained in 18

U.S.C. 207. The authority to interpret

post-employment restriction resides

with the Assistant General Counsel for

Administration at the Department of

Commerce. Nor does the Department

have the authority to advise on the

application of state professional conduct

rules to a party’s practice before the

Department. Any allegations of

violations of the rules of a particular bar

association must be raised with that

organization.

Alternative Methods of APO Approval

In the October Notice, several

commenters suggested alternative

methods of approving APOs, such as the

creation of a pre-approved roster of

members of a representative’s firm, or

permitting a lead signatory in a firm to

grant access to the other professionals

within the firm. The Department did not

adopt either alternative because there

may be facts peculiar to a particular AD

or CVD proceeding or a segment of a

proceeding that render an otherwise

eligible applicant ineligible, and the

roster approach would preclude a party

from raising legitimate objections to the

approval of an APO application.

Likewise, the lead signatory approach

would preclude parties from exercising

their right to object, for good cause, to

the disclosure of APO information to a

particular individual.

Two commenters continued to

support the roster system. One pointed

out that such a procedure would still

allow Commerce to review the

individual eligibility of each applicant

and would allow far greater flexibility

on the part of the participating firm.

These commenters did not address the

points raised by the Department in

opposing the proposal, such as notice

and certainty. As noted above,

commenters expressed concern that

they have an advance opportunity to

comment on an APO application before

access is granted. They were concerned

that the Department might approve an

APO application before parties had had

a chance to review it because of the

short two-day deadline the Department

proposed for approving an application.

We are therefore not adopting either

alternative method of approving APO

applications. The maximum five-day

deadline for approving an application

should enable parties to add

representatives without undue delay.

Department Notification of APO Service

List

If an application is approved, the

Secretary will include the name of the

authorized applicant on an APO service

list that the Department will maintain

for each segment of a proceeding.

Paragraph (c) of § 351.305 provides that
24398 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

the Secretary will use the most

expeditious means available to provide

parties with the APO service list on the

day the list is issued or amended.

Commenters generally supported the

proposal. While they supported a

flexible approach with respect to

promulgating and updating the APO

service list, they also expressed concern

with the lack of specificity as to the

form of notice to anticipate.

Commenters were particularly

concerned with the use of the Internet

to the extent the Department is

contemplating reliance on electronic

mail, based on the uncertainty of the

timely receipt of information

(particularly where the parties are out of

the office) or even whether the

information would be received at all. To

the extent the Department elects to rely

on any Internet or e-mail notification,

commenters urged the Department to

also send a copy of the notification by

mail to the parties to ensure that actual

notification was received.

Other commenters stated that the

preferred method is by facsimile. They

stated that most businesses, including

law firms practicing before the

Department, have procedures to ensure

that incoming facsimiles rapidly come

to the attention of the indicated

recipient. Commenters noted that these

procedures are not necessarily in place

with respect to the Internet and

transmission by mail involves at least

two days of delay.

At this time, the Department will fax

every change in the APO service list

directly to each party on the service list

for each proceeding. In addition, until

the Department is assured that parties

are routinely receiving notification of

the APO service list by fax, the

Department will mail hard copies of the

service to the lead applicant. This will

provide certainty and consistency

necessary to effectively monitor APO

service lists. APO service lists will be

available to the public on Import

Administration’s home page on the

Internet as a public service. The

Department will adapt these procedures

to advances in technology adopted by

the trade bar in the future to ensure it

provides notice as efficiently as

possible.

Section 351.306 Use of Business

Proprietary Information.

Section 351.306 sets forth rules

concerning the use of business

proprietary information.

Use of Business Proprietary Information

by the Secretary

Paragraph (a) is based on existing

§§ 353.32(f) and 355.32(f). One change is

the reference in paragraph (a)(4) to the

disclosure of information to the U.S.

Trade Representative under 19 U.S.C.

3571(i). Section 3571(i) (section 281(i)

of the URAA) deals with the

enforcement of U.S. rights under the

World Trade Organization Agreement

on Subsidies and Countervailing

Measures. Also, although the regulation

itself is little changed, we note that the

URAA amended section 777(b)(1)(A)(i)

of the Act to clarify that the Department

may use business proprietary

information for the duration of an entire

proceeding (from initiation to

termination or revocation), as opposed

to merely the particular segment of a

proceeding for which information was

submitted.

Use of Business Proprietary Information

by Parties

Section 777 of the Act permits the

Department to use business proprietary

information for the duration of an entire

proceeding, from initiation to

termination or revocation. Under the

current regulations, the Department

limits the record of a segment of a

proceeding to information submitted

during that particular segment of the

proceeding. 19 CFR 353.34(a). The

Department limits the use of business

proprietary information by

representatives of parties to the segment

of the proceeding in which the

information was submitted. 19 CFR

353.34(b)(3)(ii). Although the

Department may have access to business

proprietary information from another

segment of the proceeding, the

Department may not base a decision on

business proprietary information that is

not on the record of the particular

segment of the proceeding.

The URAA identifies three specific

instances in which the Department

would be expected to use information

from different segments of proceedings

or different proceedings: (1) Information

from prior segments may be used in a

sunset or changed circumstances review

of the same proceeding (section

777(b)(1) of the Act); (2) business

proprietary information from a sunset or

changed circumstances review resulting

in revocation may be used in an

investigation on the same merchandise

from the same country initiated within

two years of revocation (section

777(b)(3) of the Act); and (3)

information from a terminated

investigation may be used in a new

investigation on the subject

merchandise from the same and another

country within three months of

termination of the prior investigation

(sections 704 and 734 of the Act).

Paragraph (b) of § 351.306 deals with

the use of business proprietary

information by parties from one segment

of a proceeding to another. In the

February notice, the Department

proposed to permit parties to retain

business proprietary information

released under APO for two segments of

the proceeding subsequent to that in

which the information was placed on

the record. Paragraph (b) provided that

normally an authorized applicant may

use such information only in the

particular segment of the proceeding in

which the information was obtained. An

authorized applicant could, we

proposed, place business proprietary

information received in one segment of

a proceeding on the record of either of

two subsequent consecutive segments

(generally administrative reviews under

section 751(a)) if the information is

relevant to an issue in the subsequent

segments.

We have modified this paragraph to

give the Department greater flexibility in

determining how business proprietary

information may be used. Our intention

at this time is to allow an authorized

applicant to retain business proprietary

information obtained in one segment of

a proceeding for two subsequent

consecutive administrative reviews and

to use such business proprietary

information in those administrative

reviews or other segments of the

proceeding initiated during that time.

This use of business proprietary

information will be authorized by the

terms of the APOs.

Four commenters wanted to expand

the policy by having essentially

unlimited access to proprietary

information for the entire duration of

the proceeding and, in some cases, even

across proceedings. These commenters

suggested that any changes should be

applied to current APOs, as well as

future APOs. They argued that such

broad ability to use business proprietary

information was consistent with the

statute and would best enable them to

identify inconsistencies in submissions

from one segment of a proceeding to

another.

Four commenters supported the

proposed policy with certain

restrictions. These commenters urged

the Department to prohibit wholesale

incorporation of business proprietary

information from another segment of the

proceeding and, instead, require that

any business proprietary information

submitted from another segment of the

proceeding be relevant to the segment in

which it is submitted. Additionally,

some of these commenters indicated

that a shorter period of time (one
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24399

segment) would be sufficient to achieve

the Department’s goals.

Four commenters strongly opposed

any change to current policy. They

argued that the limited changes to the

statute cannot justify the significant

changes proposed in the regulations.

This group argued that statutory

requirements and prior CIT decisions

regarding the record for review

effectively prohibit the changes

proposed by the Department. This group

also cited concerns that the broader

ability to retain and use business

proprietary information would increase

the likelihood of disclosure of that

information and thereby discourage

parties from participating in

proceedings before the Department. The

group contended that these changes will

also impose additional burdens on

parties (to monitor the use of their

business proprietary information in

subsequent segments and to whom their

business proprietary information is

released, and to maintain the ability to

justify all differences in their reported

information from one segment to the

next). The group contended that this

practice would also increase burdens on

the Department to document and verify

the bases for any differences across

segments of proceedings.

We have not broadened the proposal

to permit unlimited use of business

proprietary information across all

segments of a proceeding, or across all

proceedings other than those specified

in the statute. There is no legal support

for the request to utilize business

proprietary information across

proceedings.

Nor do we agree with commenters

totally opposing use of business

proprietary information in more than

one segment. The statute and CIT

precedent do not prohibit the proposed

changes. The proposed changes would

provide for inclusion of the information

from another segment on the record of

the segment in question. The proposed

changes were not based on statutory

changes made by the URAA, but, rather,

rely on authority which the Department

has always possessed. We agree that

these changes will create some

additional burdens on all parties to

monitor subsequent segments of

proceedings to avoid release of their

business proprietary information to a

party to whom they object. These are

rare occurrences, and we have

attempted to minimize this burden and,

thereby, minimize the likelihood that

these changes will cause respondents to

refuse to participate in the Department’s

proceedings due to concerns about their

business proprietary information. Any

additional burden on the Department

will be minimized by the Department’s

ability to reject submissions of

irrelevant business proprietary

information from other segments.

We agree that wholesale incorporation

of business proprietary information

from prior segments should be rejected

unless absolutely necessary. We also

agree that the Department should reject

business proprietary information from

another segment which is not relevant

to the ongoing segment. Such decisions,

however, may be difficult to make and

may present additional bases for appeal

to the CIT. Therefore, the Department

does not intend to make a decision on

relevancy every time a party submits

information from a prior segment into

the current segment, but it reserves the

right to do so in appropriate

circumstances. At the same time, in

order to avoid imposing undue burdens

on the Department, we intend to

consider such information only to the

extent that is relevant to issues raised by

interested parties or that the Department

otherwise deems appropriate.

The Department expects that there

will be a multitude of practical

problems that will have to be worked

out over time and with experience

under these new procedures. Initially

we will permit parties to retain business

proprietary information for two

additional segments (generally

administrative reviews) after the

segment in which the business

proprietary information was submitted.

This is a reasonable compromise

between the long-held desires of

petitioners to be able to address

perceived inconsistencies between

segments, and respondents’ concerns

that their business proprietary

information not be distributed among

representatives and across segments for

indeterminate periods. Once business

proprietary information is placed on the

record of a subsequent segment of the

proceeding, it remains a permanent

addition to the later record, unless the

Department rejects the information.

The Department believes that this

new practice normally will be used to

move business proprietary information

from an investigation or administrative

review to two subsequent consecutive

administrative reviews. The Department

also intends to authorize the use of

business proprietary information

submitted in an investigation or

administrative review in other

segments, such as scope proceedings or

changed circumstances reviews,

initiated during those two

administrative reviews. If the

Department determines, as it gains

experience, that it is appropriate to

modify this practice, it will do so by

changing the terms of the APOs.

Identifying Parties Submitting Business

Proprietary Information

Paragraph (c) of § 351.306 addresses

identification of submitters of business

proprietary information in submissions

containing business proprietary

information from multiple persons. The

Department is requiring that APO

applicants be required to request access

to all business proprietary information

submitted in a particular segment of a

proceeding. In addition, we proposed

that in the case of submissions, such as

briefs, that include business proprietary

information of different parties, the

submission must identify each piece of

business proprietary information

included and the party to which the

information pertains. (For example,

Information Item #1 came from

Respondent A, Information Item #2

came from Respondent B, etc.) The

purpose of this proposal is to enable

parties to submit a single business

proprietary version of a submission that

may be served on all parties represented

by authorized applicants, instead of

forcing parties to submit and serve

different APO versions for each of the

parties involved in a proceeding. In the

case of a submission served on a party

not represented by an authorized

applicant (a relatively rare event), the

submitter still would have to prepare

and serve a separate submission

containing only that party’s business

proprietary information.

Three commenters supported this

proposal. They agree it will reduce the

possibility of APO violations when

documents contain business proprietary

information provided by more than one

party. Commenters further suggested

that, when all business proprietary

information in a submission is obtained

from a single party, the Department’s

regulations permit the submitting party

to identify the original submitter of the

business proprietary information only

once, on the title page of the

submission. We agree and have

incorporated this into § 351.306(c).

Commenters also suggested that the

Department should clarify the proposed

rule by stating that only business

proprietary information of another party

needs to be specifically identified by

source. The commenter proposed that

any business proprietary information

that is bracketed in the submission

should be assumed to be business

proprietary information belonging to the

party submitting the document unless

otherwise identified as business

proprietary information of another

party. The commenter pointed out that
24400 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

without this clarification, submissions

to the Department would become

cluttered with notations as to the

original submitter of the business

proprietary information and it may

become very difficult to read the

submission. We agree, and have

incorporated this suggestion into

§ 351.306(c) of the regulations.

One commenter urged the Department

to clarify what is meant by the term

‘‘identify contiguously with each item’’

so that parties can adapt their

procedures accordingly. The commenter

noted that particularly troublesome

would be documents containing multiparty information on a single line. The

commenter requested that the

Department should clarify whether the

identifying markings are also required

in public versions.

The term ‘‘contiguous’’ was used to

require identification closely enough

with the item of business proprietary

information so a party could clearly and

quickly identify the original submitter

of the business proprietary information.

We do not want to be so specific that

parties lose flexibility to respond to

different situations. Documents can

vary, and readability must not be

sacrificed. In some situations, a notation

next to the item of business proprietary

will best serve everyone’s interests. In a

more complicated document, footnotes

might be better. Since the public version

of a submission should be identical with

the business proprietary version except

for the deletion of the proprietary

information, the public submission will

contain the identity of the original

submitter of the proprietary

information.

Some commenters objected to the

Department’s proposed exception

(§ 351.306(c)(2)) to the single-version

business proprietary information

document rule where a party does not

have a representative. They argued that

it undermined the benefits gained from

not having to file respondent-specific

submissions and that adequate public

summaries would be adequate.

The Department believes that this

requirement is necessary. A party needs

disclosure of another party’s arguments

against it to adequately defend itself. To

fail to do so would not provide

sufficient transparency to the

proceeding.

Concern was expressed regarding the

potential mismarking of business

proprietary information in a document,

and the reliance thereafter on the

information mismarked by another

party. The commenter urged that the

latter party’s reliance on the mismarked

information should not constitute a

breach of the protective order. Another

commenter took the opposite view. It

suggested that if a party mistakenly

indicates the wrong original submitter

of business proprietary information in a

submission, the party should only be

required to correct the mistake, and the

mistake should not constitute an APO

violation in and of itself. The

commenter further argued, however,

that if, as a result of a mistake, a party

were to disclose business proprietary

information to another party not

authorized to receive it, that disclosure

would constitute an APO violation

under the existing APO rules.

Only the party creating the

submission from multiple parties’

business proprietary information knows

with certainty the person that originally

submitted the business proprietary

information. Therefore the submitter

must be responsible for the accuracy of

the labeling. This is the purpose of the

proposal. Unless an authorized

applicant knows that an identification is

incorrect, he or she should be entitled

to rely on the identification. Otherwise

the requirement serves no purpose. An

unauthorized disclosure resulting from

inaccurate labeling that leads to an APO

violation will be attributed to the person

labeling the original submitter of the

business proprietary information.

Another commenter opposed the

proposal altogether, arguing that the

proposal is an attempt to shift costs and

responsibility from petitioner to

respondent, causing respondent to lose

time reviewing petitioner’s case brief in

the five days that they have to prepare

rebuttal briefs under proposed

§ 351.309(d). The commenter argued

that while the number of inadvertent

APO violations will decrease for

petitioner’s counsel, they will increase

for respondent’s counsel, because

respondent’s counsel must now make

sure petitioner’s documents do not

include APO material that should not be

released.

These proposed procedures formalize

what has been the Department’s practice

since 1992. Moreover, we believe that

these proposals balance the different

interests of petitioners and respondents.

Although there are risks of inadvertent

APO violations associated with any

option, we believe that the fact that all

authorized applicants will have access

to the business proprietary information

of all parties (whether or not service is

waived) should reduce significantly the

number of inadvertent disclosures. In

this regard, the inadvertent service on

an authorized applicant of a submission

containing information of a party for

which the applicant has waived service

would not constitute an APO violation.

Administrative Protective Order

Sanction Procedures

Five parties commented on the

proposed amendments to the APO

sanction procedures. All commenters

supported the proposed changes. Upon

further reflection, the Department is

amending its regulations consistent with

the proposed regulations. As explained

below, the Department also is making

clerical revisions to use terms

‘‘administrative protective order’’ and

‘‘business proprietary information’’

consistently throughout this part, and to

conform the regulations to changes

made in the organization of the

Department on July 1, 1996.

Section 354.2 Definitions.

The definition section is revised to be

consistent with the definitions

contained in the Department’s proposed

antidumping and countervailing

procedural regulations at 19 CFR

351.102. The definitions of the terms

‘‘administrative protective order’’,

‘‘Secretary’’, ‘‘segment of the

proceeding’’, and ‘‘Senior APO

Specialist’’ are added to Part 354 in

§ 354.2.

The definition of ‘‘director’’ is revised

to reflect the reorganization of the

Department that became effective July 1,

1996. Under the reorganization, the

APO function is consolidated under the

Director for Policy and Analysis, and is

managed by a Senior APO Specialist.

The Senior APO Specialist is

responsible for directing the

Department’s handling of business

proprietary information. The Senior

APO Specialist assists with

investigations of alleged APO violations,

which streamlines the APO violation

investigation process. A definition of

‘‘Senior APO Specialist’’ is added in

§ 354.2, and the definition of ‘‘director’’

is revised to include the Senior APO

Specialist. The definition of director is

also amended to conform the regulation

to the changes in office director

positions made in the July 1, 1996

reorganization.

Section 354.5 Report of violation and

investigation.

Paragraph (a)(1) is amended to require

that all allegations of APO violations be

reported to either the Senior APO

Specialist or the Office of Chief Counsel

for the Department. Under the current

practice, alleged violations are reported

to the APO specialist in the Office of

Investigations or Office of Compliance,

depending on where the alleged

violation occurred. The amendment

conforms the regulation to the July 1,

1996 reorganization of the Department.
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24401

Paragraphs (d) (7) and (8) are

combined and revised to reflect changes

in the Act and Department practice

regarding the use of business

proprietary information in segments of

proceedings other than the one in which

the information was originally

submitted. These changes are discussed

above. The Department’s procedural

regulations will now allow use of

business proprietary information in

more than one segment of a proceeding

or another proceeding in limited

situations. The segments of proceedings

in which business proprietary

information may be used will be

contained in the administrative

protective order. Paragraphs (d) (7) and

(8) are combined and revised to reflect

these changes.

Classification

E.O. 12866

This rule has been determined to be

not significant for purposes of Executive

Order 12866.

Paperwork Reduction Act

This rule does not contain a collection

of information for purposes of the

Paperwork Reduction Act of 1980, as

amended (44 U.S.C. 3501 et seq.).

Regulatory Flexibility Act

The Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce has certified

to the Chief Counsel for Advocacy of the

Small Business Administration that

these amendments would not have a

significant economic impact on a

substantial number of small business

entities because the rule that they would

amend does not have such an impact

and, furthermore, the amendments

would tend to simplify the procedures

pertaining to administration of APO

sanctions. The Deputy Under Secretary

for International Trade is responsible for

regulations governing sanctions for

violations of APOs. The Assistant

Secretary for Import Administration is

responsible for the regulations

governing issuance and use of APOs.

List of Subjects in 19 CFR Parts 351 and

354

Business and industry, Foreign trade,

Imports, Trade practices.

Dated: April 29, 1998.

Timothy J. Hauser,

Deputy Under Secretary for International

Trade.

Dated: April 29, 1998.

Robert S. LaRussa,

Assistant Secretary for Import

Administration.

For the reasons stated, 19 CFR chapter

III is amended as follows:

PART 351—ANTIDUMPING AND

COUNTERVAILING DUTIES

1. The authority citation for part 351

continues to read as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 1202

note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 et

seq.; and 19 U.S.C. 3538.

2. Section 351.103 is revised as

follows:

§ 351.103 Central Records Unit and

Administrative Protective Order Unit.

(a) Import Administration’s Central

Records Unit maintains a Public File

Room in Room B–099 and a Dockets

Center in Room 1870, U.S. Department

of Commerce, Pennsylvania Avenue and

14th Street, NW., Washington, D.C.

20230. The office hours of the Public

File Room and Dockets Center are

between 8:30 a.m. and 5:00 p.m. on

business days. Among other things, the

Central Records Unit is responsible for

maintaining an official and public

record for each antidumping and

countervailing duty proceeding (see

§ 351.104), the Subsidies Library (see

section 775(2) and section 777(a)(1) of

the Act), and the service list for each

proceeding (see paragraph (c) of this

section).

(b) Filing of documents with the

Department. While persons are free to

provide Department officials with

courtesy copies of documents, no

document will be considered as having

been received by the Secretary unless it

is submitted to the Import

Administration Dockets Center in Room

1870 and is stamped with the date and

time of receipt.

(c) Service list. The Central Records

Unit will maintain and make available

a service list for each segment of a

proceeding. Each interested party that

asks to be included on the service list

for a segment of a proceeding must

designate a person to receive service of

documents filed in that segment. The

service list for an application for a scope

ruling is described in § 351.225(n).

(d) Import Administration’s

Administrative Protective Order Unit

(APO Unit) is located in Room 1870,

U.S. Department of Commerce,

Pennsylvania Avenue and 14th Street,

N.W., Washington, D.C. 20230. The

office hours of the APO Unit are

between 8:30 a.m. and 5:00 p.m. on

business days. Among other things, the

APO Unit is responsible for issuing

administrative protective orders (APOs),

maintaining the APO service list,

releasing business proprietary

information under APO, and APO

violation investigations. The APO Unit

also is the contact point for questions

and concerns regarding claims for

business proprietary treatment of

information and proper public versions

of submissions under § 351.105 and

§ 351.304.

3. Sections 351.304, 351.305 and

351.306 are added to subpart C to read

as follows:

§ 351.304 Establishing business

proprietary treatment of information.

(a) Claim for business proprietary

treatment. (1) Any person that submits

factual information to the Secretary in

connection with a proceeding may:

(i) Request that the Secretary treat any

part of the submission as business

proprietary information that is subject to

disclosure only under an administrative

protective order,

(ii) Claim that there is a clear and

compelling need to withhold certain

business proprietary information from

disclosure under an administrative

protective order, or

(iii) In an investigation, identify

customer names that are exempt from

disclosure under administrative

protective order under section

777(c)(1)(A) of the Act.

(2) The Secretary will require that all

business proprietary information

presented to, or obtained or generated

by, the Secretary during a segment of a

proceeding be disclosed to authorized

applicants, except for

(i) Customer names submitted in an

investigation,

(ii) Information for which the

Secretary finds that there is a clear and

compelling need to withhold from

disclosure, and

(iii) Privileged or classified

information.

(b) Identification of business

proprietary information. (1) In general.

A person submitting information must

identify the information for which it

claims business proprietary treatment

by enclosing the information within

single brackets. The submitting person

must provide with the information an

explanation of why each item of

bracketed information is entitled to

business proprietary treatment. A

person submitting a request for business

proprietary treatment also must include

an agreement to permit disclosure under

an administrative protective order,
24402 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

unless the submitting party claims that

there is a clear and compelling need to

withhold the information from

disclosure under an administrative

protective order.

(2) Information claimed to be exempt

from disclosure under administrative

protective order. (i) If the submitting

person claims that there is a clear and

compelling need to withhold certain

information from disclosure under an

administrative protective order (see

paragraph (a)(1)(ii) of this section), the

submitting person must identify the

information by enclosing the

information within double brackets, and

must include a full explanation of the

reasons for the claim.

(ii) In an investigation, the submitting

person may enclose business

proprietary customer names within

double brackets (see paragraph (a)(1)(iii)

of this section).

(iii) The submitting person may

exclude the information in double

brackets from the business proprietary

information version of the submission

served on authorized applicants. See

§ 351.303 for filing and service

requirements.

(c) Public version. (1) A person filing

a submission that contains information

for which business proprietary

treatment is claimed must file a public

version of the submission. The public

version must be filed on the first

business day after the filing deadline for

the business proprietary version of the

submission (see § 351.303(b)). The

public version must contain a summary

of the bracketed information in

sufficient detail to permit a reasonable

understanding of the substance of the

information. If the submitting person

claims that summarization is not

possible, the claim must be

accompanied by a full explanation of

the reasons supporting that claim.

Generally, numerical data will be

considered adequately summarized if

grouped or presented in terms of indices

or figures within 10 percent of the

actual figure. If an individual portion of

the numerical data is voluminous, at

least one percent representative of that

portion must be summarized. A

submitter should not create a public

summary of business proprietary

information of another person.

(2) If a submitting party discovers that

it has failed to bracket information

correctly, the submitter may file a

complete, corrected business

proprietary version of the submission

along with the public version (see

§ 351.303(b)). At the close of business

on the day on which the public version

of a submission is due under paragraph

(c)(2) of this section, however, the

bracketing of business proprietary

information in the original business

proprietary version or, if a corrected

version is timely filed, the corrected

business proprietary version will

become final. Once bracketing has

become final, the Secretary will not

accept any further corrections to the

bracketing of information in a

submission, and the Secretary will treat

non-bracketed information as public

information.

(d) Nonconforming submissions. (1) In

general. The Secretary will return a

submission that does not meet the

requirements of section 777(b) of the

Act and this section with a written

explanation. The submitting person may

take any of the following actions within

two business days after receiving the

Secretary’s explanation:

(i) Correct the problems and resubmit

the information;

(ii) If the Secretary denied a request

for business proprietary treatment, agree

to have the information in question

treated as public information;

(iii) If the Secretary granted business

proprietary treatment but denied a claim

that there was a clear and compelling

need to withhold information under an

administrative protective order, agree to

the disclosure of the information in

question under an administrative

protective order; or

(iv) Submit other material concerning

the subject matter of the returned

information. If the submitting person

does not take any of these actions, the

Secretary will not consider the returned

submission.

(2) Timing. The Secretary normally

will determine the status of information

within 30 days after the day on which

the information was submitted. If the

business proprietary status of

information is in dispute, the Secretary

will treat the relevant portion of the

submission as business proprietary

information until the Secretary decides

the matter.

§ 351.305 Access to business proprietary

information.

(a) The administrative protective

order. The Secretary will place an

administrative protective order on the

record within two days after the day on

which a petition is filed or an

investigation is self-initiated, or five

days after initiating any other segment

of a proceeding. The administrative

protective order will require the

authorized applicant to:

(1) Establish and follow procedures to

ensure that no employee of the

authorized applicant’s firm releases

business proprietary information to any

person other than the submitting party,

an authorized applicant, or an

appropriate Department official

identified in section 777(b) of the Act;

(2) Notify the Secretary of any

changes in the facts asserted by the

authorized applicant in its

administrative protective order

application;

(3) Destroy business proprietary

information by the time required under

the terms of the administrative

protective order;

(4) Immediately report to the

Secretary any apparent violation of the

administrative protective order; and

(5) Acknowledge that any

unauthorized disclosure may subject the

authorized applicant, the firm of which

the authorized applicant is a partner,

associate, or employee, and any partner,

associate, or employee of the authorized

applicant’s firm to sanctions listed in

part 354 of this chapter (19 CFR part

354).

(b) Application for access under

administrative protective order. (1)

Generally, no more than two

independent representatives of a party

to the proceeding may have access to

business proprietary information under

an administrative protective order. A

party must designate a lead firm if the

party has more than one independent

authorized applicant firm.

(2) A representative of a party to the

proceeding may apply for access to

business proprietary information under

the administrative protective order by

submitting Form ITA–367 to the

Secretary. Form ITA–367 must identify

the applicant and the segment of the

proceeding involved, state the basis for

eligibility of the applicant for access to

business proprietary information, and

state the agreement of the applicant to

be bound by the administrative

protective order. Form ITA–367 may be

prepared on the applicant’s own wordprocessing system, and must be

accompanied by a certification that the

application is consistent with Form

ITA–367 and an acknowledgment that

any discrepancies will be interpreted in

a manner consistent with Form ITA–

367. An applicant must apply to receive

all business proprietary information on

the record of the segment of a

proceeding in question, but may waive

service of business proprietary

information it does not wish to receive

from other parties to the proceeding. An

applicant must serve an APO

application on the other parties in the

same manner and at the same time as it

serves the application on the

Department.

(3) To minimize the disruption caused

by late applications, an application

should be filed before the first
Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations 24403

questionnaire response has been

submitted. Where justified, however,

applications may be filed up to the date

on which the case briefs are due, but

any applicant filing after the first

questionnaire response is submitted will

be liable for costs associated with the

additional production and service of

business proprietary information

already on the record. Parties have five

days to serve their business proprietary

information already on the record to

applicants authorized to receive such

information after such information has

been placed on the record.

(c) Approval of access under

administrative protective order;

administrative protective order service

list. The Secretary will grant access to a

qualified applicant by including the

name of the applicant on an

administrative protective order service

list. Access normally will be granted

within five days of receipt of the

application unless there is a question

regarding the eligibility of the applicant

to receive access. In that case, the

Secretary will decide whether to grant

the applicant access within 30 days of

receipt of the application. The Secretary

will provide by the most expeditious

means available the administrative

protective order service list to parties to

the proceeding on the day the service

list is issued or amended.

§ 351.306 Use of business proprietary

information.

(a) By the Secretary. The Secretary

may disclose business proprietary

information submitted to the Secretary

only to:

(1) An authorized applicant;

(2) An employee of the Department of

Commerce or the International Trade

Commission directly involved in the

proceeding in which the information is

submitted;

(3) An employee of the Customs

Service directly involved in conducting

a fraud investigation relating to an

antidumping or countervailing duty

proceeding;

(4) The U.S. Trade Representative as

provided by 19 U.S.C. 3571(i);

(5) Any person to whom the

submitting person specifically

authorizes disclosure in writing; and

(6) A charged party or counsel for the

charged party under 19 CFR part 354.

(b) By an authorized applicant. An

authorized applicant may retain

business proprietary information for the

time authorized by the terms of the

administrative protective order. An

authorized applicant may use business

proprietary information for purposes of

the segment of a proceeding in which

the information was submitted. If

business proprietary information that

was submitted in a segment of the

proceeding is relevant to an issue in a

different segment of the proceeding, an

authorized applicant may place such

information on the record of the

subsequent segment as authorized by

the APO.

(c) Identifying parties submitting

business proprietary information. (1) If

a party submits a document containing

business proprietary information of

another person, the submitting party

must identify, contiguously with each

item of business proprietary

information, the person that originally

submitted the item (e.g., Petitioner,

Respondent A, Respondent B). Business

proprietary information not identified

will be treated as information of the

person making the submission. If the

submission contains business

proprietary information of only one

person, it shall so state on the first page

and identify the person that originally

submitted the business proprietary

information on the first page.

(2) If a party to a proceeding is not

represented by an authorized applicant,

a party submitting a document

containing the unrepresented party’s

business proprietary information must

serve the unrepresented party with a

version of the document that contains

only the unrepresented party’s business

proprietary information. The document

must not contain the business

proprietary information of other parties.

(d) Disclosure to parties not

authorized to receive business

proprietary information. No person,

including an authorized applicant, may

disclose the business proprietary

information of another person to any

other person except another authorized

applicant or a Department official

described in paragraph (a)(2) of this

section. Any person that is not an

authorized applicant and that is served

with business proprietary information

must return it to the sender

immediately, to the extent possible

without reading it, and must notify the

Department. An allegation of an

unauthorized disclosure will subject the

person that made the alleged

unauthorized disclosure to an

investigation and possible sanctions

under 19 CFR part 354.

PART 354 [AMENDED]

4–5. The authority citation for part

354 is revised to read as follows:

Authority: 5 U.S.C. 301, and 19 U.S.C.

1677.

6. All references in part 354 to

‘‘protective order’’ are revised to read

‘‘administrative protective order’’, all

references to ‘‘proprietary information’’

are revised to read ‘‘business proprietary

information’’, and all references to

‘‘appropriate Director’’ are revised to

read ‘‘Director’’.

§ 354. 1 [Amended]

7. Section 354.1 is amended by

removing the citations ‘‘19 CFR 353.30

and 355.20’’ and replacing them with

‘‘19 CFR 351.306’’.

8. Section 354.2 is revised as follows:

§ 354.2 Definitions.

For purposes of this part:

Administrative protective order (APO)

means an administrative protective

order described in section 777(c)(1) of

the Tariff Act of 1930, as amended; APO

Sanctions Board means the

Administrative Protective Order

Sanctions Board.

Business proprietary information

means information the disclosure of

which the Secretary has decided is

limited under 19 CFR 351.105, or

successor regulations;

Charged party means a person who is

charged by the Deputy Under Secretary

with violating a protective order;

Chief Counsel means the Chief

Counsel for Import Administration or a

designee;

Date of service means the day a

document is deposited in the mail or

delivered in person;

Days means calendar days, except that

a deadline which falls on a weekend or

holiday shall be extended to the next

working day;

Department means the United States

Department of Commerce;

Deputy Under Secretary means the

Deputy Under Secretary for

International Trade or a designee;

Director means the Senior APO

Specialist or an office director under a

Deputy Assistant Secretary,

International Trade Administration, or a

designee;

Lesser included sanction means a

sanction of the same type but of more

limited scope than the proposed

sanction; thus a one-year bar on

representations before the International

Trade Administration is a lesser

included sanction of a proposed sevenyear bar;

Parties means the Department and the

charged party or affected party in an

action under this part;

Presiding official means the person

authorized to conduct hearings in

administrative proceedings or to rule on

any motion or make any determination

under this part, who may be an

Administrative Law Judge, a Hearing

Commissioner, or such other person

who is not under the supervision or
24404 Federal Register / Vol. 63, No. 85 / Monday, May 4, 1998 /Rules and Regulations

control of the Assistant Secretary for

Import Administration, the Deputy

Under Secretary for International Trade,

the Chief Counsel for Import

Administration, or a member of the APO

Sanctions Board;

Proprietary information means

information the disclosure of which the

Secretary has decided is limited under

19 CFR part 351 including business or

trade secrets; production costs;

distribution costs; terms of sale; prices

of individual sales, likely sales, or

offers; names of customers, distributors,

or suppliers; exact amounts of the gross

net subsidies received and used by a

person; names of particular persons

from whom proprietary information was

obtained; and any other business

information the release of which to the

public would cause substantial harm to

the competitive position of the

submitter;

Secretary means the Secretary of

Commerce or a designee;

Segment of the proceeding means a

portion of an antidumping or

countervailing duty proceeding that is

reviewable under section 516A of the

Tariff Act of 1930, as amended.

Senior APO Specialist means the

Department employee under the

Director for Policy and Analysis who

leads the APO Unit and is responsible

for directing Import Administration’s

handling of business proprietary

information;

Under Secretary means the Under

Secretary for International Trade or a

designee.

9. Section 354.3 is amended by

revising paragraphs (a)(3), and (a)(4),

and by adding a new paragraph (a)(5),

as follows:

§ 354.3 Sanctions.

(a) * * *

(3) Other appropriate administrative

sanctions, including striking from the

record any information or argument

submitted by, or on behalf of, the

violating party or the party represented

by the violating party; terminating any

proceeding then in progress; or revoking

any order then in effect;

(4) Requiring the person to return

material previously provided by the

Secretary and all other materials

containing the business proprietary

information, such as briefs, notes, or

charts based on any such information

received under an administrative

protective order; and

(5) Issuing a private letter of

reprimand.

* * * * *

10. Section 354.5 is amended by

revising paragraphs (a), (b), (c) and

(d)(1), (d)(2), and (d)(7), and by

removing paragraph (d)(8), and

redesignating paragraph (d)(9) as (d)(8),

as follows:

§ 354.5 Report of violation and

investigation.

(a) An employee of the Department

who has information indicating that the

terms of an administrative protective

order have been violated will provide

the information to the Senior APO

Specialist or the Chief Counsel.

(b) Upon receiving information which

indicates that a person may have

violated the terms of an administrative

protective order from an employee of

the Department or any other person, the

director will conduct an investigation

concerning whether there was a

violation of an administrative protective

order, and who was responsible for the

violation, if any. No director shall

investigate an alleged violation that

arose out of a proceeding for which the

director was responsible. For the

purposes of this part, the director will

be supervised by the Deputy Under

Secretary for International Trade with

guidance from the Chief Counsel. The

director will conduct an investigation

only if the information is received

within 30 days after the alleged

violation occurred or, as determined by

the director, could have been discovered

through the exercise of reasonable and

ordinary care.

(c)(1) The director conducting the

investigation will provide a report of the

investigation to the Deputy Under

Secretary for International Trade, after

review by the Chief Counsel, no later

than 90 days after receiving information

concerning a violation if:

(i) The person alleged to have violated

an administrative protective order

personally notified the Secretary and

reported the particulars surrounding the

incident; and

(ii) The alleged violation did not

result in any actual disclosure of

business proprietary information. Upon

the director’s request, and if

extraordinary circumstances exist, the

Deputy Under Secretary for

International Trade may grant the

director up to an additional 90 days to

conduct the investigation and submit

the report.

(2) In all other cases, the director will

provide a report of the investigation to

the Deputy Under Secretary for

International Trade, after review by the

Chief Counsel, no later than 180 days

after receiving information concerning a

violation. Upon the director’s request,

and if extraordinary circumstances

exist, the Deputy Under Secretary for

International Trade may grant the

director up to an additional 180 days to

conduct the investigation and submit

the report.

(d) * * *

(1) Disclosure of business proprietary

information to any person other than the

submitting party, an authorized

applicant, or an appropriate Department

official identified in section 777(b) of

the Tariff Act of 1930, including

disclosure to an employee of any other

United States Government agency or a

member of Congress.

(2) Failure to follow the terms and

conditions outlined in the

administrative protective order for

safeguarding business proprietary

information.

* * * * *

(7) Use of business proprietary

information submitted in one segment

of a proceeding in another segment of

the same proceeding or in another

proceeding, except as authorized by the

Tariff Act of 1930 or by an

administrative protective order.

* * * * *

11. Section 354.6 is revised as

follows:

§ 354.6 Initiation of proceedings.

(a) In general. After an investigation

and report by the director under

§ 354.5(c) and consultation with the

Chief Counsel, the Deputy Under

Secretary for International Trade will

determine whether there is reasonable

cause to believe that a person has

violated an administrative protective

order. If the Deputy Under Secretary for

International Trade determines that

there is reasonable cause, the Deputy

Under Secretary for International Trade

also will determine whether sanctions

under paragraph (b) or a warning under

paragraph (c) is appropriate for the

violation.

(b) Sanctions. In determining under

paragraph (a) of this section whether

sanctions are appropriate, and, if so,

what sanctions to impose, the Deputy

Under Secretary for International Trade

will consider the nature of the violation,

the resulting harm, and other relevant

circumstances of the case. If the Deputy

Under Secretary for International Trade

determines that sanctions are

appropriate, the Deputy Under Secretary

for International Trade will initiate a

proceeding under this part by issuing a

charging letter under § 354.7. The

Deputy Under Secretary for

International Trade will determine

whether to initiate a proceeding no later

than 60 days after receiving a report of

the investigation.

(c) Warning. If the Deputy Under

Secretary for International Trade

determines under paragraph (a) of this
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section that a warning is appropriate,

the Deputy Under Secretary will issue a

warning letter to the person believed to

have violated an administrative

protective order. Sanctions are not

appropriate and a warning is

appropriate if:

(1) The person took due care;

(2) The Secretary has not previously

charged the person with violating an

administrative protective order;

(3) The violation did not result in any

disclosure of the business proprietary

information or the Secretary is

otherwise able to determine that the

violation caused no harm to the

submitter of the information; and

(4) The person cooperated fully in the

investigation.

12. Section 354.7 is amended by

revising paragraph (b), as follows:

§ 354.7 Charging letter.

* * * * *

(b) Settlement and amending the

charging letter. The Deputy Under

Secretary for International Trade and a

charged or affected party may settle a

charge brought under this part by

mutual agreement at any time after

service of the charging letter; approval

of the presiding official or the

administrative protective order

Sanctions Board is not necessary. The

charged or affected party may request a

hearing but at the same time request that

a presiding official not be appointed

pending settlement discussions.

Settlement agreements may include

sanctions for purposes of § 354.18. The

Deputy Under Secretary for

International Trade may amend,

supplement, or withdraw the charging

letter as follows:

(1) If there has been no request for a

hearing, or if supporting information

has not been submitted under § 354.13,

the withdrawal will not preclude future

actions on the same alleged violation.

(2) If a hearing has been requested but

no presiding official has been

appointed, withdrawal of the charging

letter will preclude the Deputy Under

Secretary for International Trade from

seeking sanctions at a later date for the

same alleged violation.

(3) The Deputy Under Secretary for

International Trade may amend,

supplement or withdraw the charging

letter at any time after the appointment

of a presiding official, if the presiding

official determines that the interests of

justice would thereby be served. If the

presiding official so determines, the

presiding official will also determine

whether the withdrawal will preclude

the Deputy Under Secretary for

International Trade from seeking

sanctions at a later date for the same

alleged violation.

* * * * *

13. Section 354.9 is amended by

revising paragraph (b), as follows:

§ 354. 9 Request for a hearing.

(a) * * *

(b) Upon timely receipt of a request

for a hearing, and unless the party

requesting a hearing requests that the

Under Secretary not appoint a presiding

official, the Under Secretary will

appoint a presiding official to conduct

the hearing and render an initial

decision.

§ 354.15 [Amended]

14. Section 354.15 is amended by

removing paragraph (e).

§ 354.17 [Amended]

15. Section 354.17(b) is amended by

removing the citations ‘‘19 CFR 353.30

and § 355.20’’ and replacing them with

‘‘19 CFR 351.305(c)’’.

16. Section 354.18 is added to part

354, to read as follows:

§ 354.18 Public notice of sanctions.

If there is a final decision under

§ 354.15 to impose sanctions, or if a

charging letter is settled under

§ 354.7(b), notice of the Secretary’s

decision or of the existence of a

settlement will be published in the

Federal Register. If a final decision is

reached, such publication will be no

sooner than 30 days after issuance of a

final decision or after a motion to

reconsider has been denied, if such a

motion was filed. In addition, whenever

the Deputy Under Secretary for

International Trade subjects a charged

or affected party to a sanction under

§ 354.3(a)(1), the Deputy Under

Secretary for International Trade also

will provide such information to the

ethics panel or other disciplinary body

of the appropriate bar associations or

other professional associations and to

any Federal agency likely to have an

interest in the matter. The Deputy

Under Secretary for International Trade

will cooperate in any disciplinary

actions by any association or agency.

Whenever the Deputy Under Secretary

for International Trade subjects a

charged or affected party to a private

letter of reprimand under § 354.3(a)(5),

the Secretary will not make public the

identity of the violator, nor will the

Secretary make public the specifics of

the violation in a manner that would

reveal indirectly the identity of the

violator.

17. Section 354.19 is added to part

354, to read as follows:

§ 354.19 Sunset.

(a) If, after a period of three years from

the date of issuance of a warning letter,

a final decision or settlement in which

sanctions were imposed, the charged or

affected party has fully complied with

the terms of the sanctions and has not

been found to have violated another

administrative protective order, the

party may request in writing that the

Deputy Under Secretary for

International Trade rescind the charging

letter. A request for rescission must

include:

(1) A description of the actions taken

during the preceding three years in

compliance with the terms of the

sanctions; and

(2) A letter certifying that: the charged

or affected party complied with the

terms of the sanctions; the charged or

affected party has not received another

administrative protective order sanction

during the three-year period; and the

charged or affected party is not the

subject of another investigation for a

possible violation of an administrative

protective order.

(b) Subject to the Chief Counsel’s

confirmation that the charged or

affected party has complied with the

terms set forth in paragraph (a) of this

section, the Deputy Under Secretary for

International Trade will rescind the

charging letter within 30 days after

receiving the written request.

Appendix to 19 CFR Part 351, Subpart C

Note: The following appendix will not

appear in the Code of Federal Regulations:

Application for Administrative Protective

Order in Antidumping or Countervailing

Duty Proceeding, and Administrative

Protective Order.

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[FR Doc. 98–11802 Filed 5–1–98; 8:45 am]

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