Federal Register / Vol. 60, No. 27 / Thursday, February 9, 1995 / Proposed Rules 7723

1Commissioners Rohr and Newquist dissent from

the Commission majority’s decision to consider

revising the final rules as described in this notice.

See infra n.9.

2See 59 FR 39020, Part II (Aug. 1, 1994).

3 Id.

4See 59 FR 67622 (Dec. 30, 1994).

23, 80a–29, 80a–37, 80b–3, 80b–4, and 80b–

11, unless otherwise noted.

* * * * *

2. By amending § 240.12f–1 by

revising the section heading and

introductory text of paragraph (a),

redesignating paragraphs (a)(5) and

(a)(6) as (a)6) and (a)(7), adding

paragraph (a)(5), and revising newly

designated (a)(6), to read as follows:

§ 240.12f–1 Applications for permission to

reinstate unlisted trading privileges.

(a) An application to reinstate

unlisted trading privileges may be made

to the Commission by any national

securities exchange for the extension of

unlisted trading privileges to any

security for which such unlisted trading

privileges have been suspended by the

Commission, pursuant to section

12(f)(2)(A). One copy of such

application, executed by a duly

authorized officer of the exchange, shall

be filed and shall set forth:

(1) * * *

(5) The date of the Commission’s

suspension of unlisted trading

privileges in the security on the

exchange;

(6) Any other information which is

deemed pertinent to the question of

whether the reinstatement of unlisted

trading privileges in such security is

consistent with the maintenance of fair

and orderly markets and the protection

of investors; and

* * * * *

3. By revising § 240.12f–2 to read as

follows:

§ 240.12f–2 Extending Unlisted Trading

Privileges to a Security that is the Subject

of an Initial Public Offering.

(a) General provision—A national

securities exchange may extend unlisted

trading privileges to a subject security

when at least one transaction in the

subject security has been effected on the

national securities exchange upon

which the security is listed and the

transaction has been reported pursuant

to an effective transaction reporting plan

as defined in § 240.11Aa3–1.

(b) The extension of unlisted trading

privileges pursuant to this section shall

be subject to all the provisions set forth

in Section 12(f) of the Act (15 U.S.C.

78l(f)), as amended, and any rule or

regulation promulgated thereunder, or

which may be promulgated thereunder

while the extension is in effect.

(c) Definition. For purposes of this

section, the term subject security shall

mean a security that is the subject of an

initial public offering, as that term is

defined in section 12(f)(1)(G) of the Act

(15 U.S.C. 78l(f)(1)(G)).

4. By amending § 240.12f–3 by

revising paragraph (b) to read as follows:

§ 240.12f–3 Termination or suspension of

unlisted trading privileges.

(a) * * *

(b) Unlisted trading privileges in any

security on any national securities

exchange may be suspended or

terminated by such exchange in

accordance with its rules.

5. By adding § 240.12f–5, to read as

follows:

§ 240.12f–5 Exchange Rules for Securities

to which Unlisted Trading Privileges are

Extended.

A national securities exchange shall

not extend unlisted trading privileges to

any security unless the national

securities exchange has in effect a rule

or rules providing for transactions in the

class or type of security to which the

exchange extends unlisted trading

privileges.

§ 240.12f–6 [Removed]

6. By removing and reserving

§ 240.12f–6.

PART 249—FORMS, SECURITIES

EXCHANGE ACT OF 1934

7. The authority citation for Part 249

continues to read in part as follows:

Authority: 15 U.S.C. 78a, et seq., unless

otherwise noted.

§ 249.27 and 249.28 [Removed]

8. By removing § 249.27 and § 249.28.

By the Commission.

Dated: February 2, 1995.

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 95–3175 Filed 2–8–95; 8:45 am]

BILLING CODE 8010–01–P

INTERNATIONAL TRADE

COMMISSION

19 CFR Part 210

Notice of Proposed Rulemaking

Concerning Post-Investigation

Retention and Use of Confidential

Business Information From

Investigations on Unfair Practices in

Import Trade

AGENCY: International Trade

Commission.

ACTION: Notice of proposed rulemaking

and request for comments.

SUMMARY: The Commission proposes to

amend two of its final rules for

investigations and related proceedings

under section 337 of the Tariff Act of

1930 (19 U.S.C. 1337) to codify a

proposed new policy of allowing

counsel who are signatories to an

administrative protective order (APO) to

retain certain categories of confidential

business information (CBI) from an

investigation for prescribed periods and

to use that CBI during the retention

period for certain limited purposes.1

The Commission hereby solicits

written comments from interested

persons to aid the Commission in

determining whether to adopt the

proposed rules set forth in this notice.

DATES: Comments will be considered if

received on or before April 10, 1995.

ADDRESSES: A signed original and 18

copies of each set of comments, along

with a cover letter stating the nature of

the commenter’s interest in the

proposed rulemaking, should be

submitted to Donna R. Koehnke,

Secretary, U.S. International Trade

Commission, 500 E Street, SW., Room

112, Washington, DC 20436.

FOR FURTHER INFORMATION CONTACT: P.N.

Smithey, Esq., Office of the General

Counsel, U.S. International Trade

Commission, telephone 202–205–3061.

Hearing-impaired individuals can

obtain information concerning the

proposed rulemaking by contacting the

Commission’s TDD terminal at 202–

205–1810.

SUPPLEMENTARY INFORMATION:

Background

On August 1, 1994, the Commission

published final rules for 19 CFR part

210 eventually to replace the interim

rules currently found in 19 CFR parts

210 and 211.2 The interim rules in 19

CFR parts 210 and 211 (1994) apply to

all pending investigations and related

proceedings that were instituted before

September 1, 1994. The final rules,

which went into effect on August 31,

1994, and will be codified in 19 CFR

part 210 in 1995, apply to all

investigations and related proceedings

instituted on or after September 1,

1994.3 On January 1, 1995, certain final

rules were amended on an interim basis

to implement the amendments to

section 337 contained in the Uruguay

Round Agreements Act, Pub. L. No.

103–465, 108 Stat. 4809 (1994)

(URAA).4

Neither the interim nor the final

Commission rules contain provisions

governing the retention of CBI by

counsel who are signatories to a section

337 APO. The Commission’s traditional

policy, however, has been to issue
7724 Federal Register / Vol. 60, No. 27 / Thursday, February 9, 1995 / Proposed Rules

5See, e.g., Inv. No. 337–TA–334, Certain

Condensers, Parts Thereof, and Products Containing

Same, Including Air Conditioners for Automobiles,

58 FR 47286 (Sept. 8, 1993); Inv. No. 337–TA–331,

Certain Microcomputer Memory Controllers,

Components Thereof, and Products Containing

Same, 58 FR 47284 (Sept. 8, 1993). The Condensers

APO permitted outside counsel for the complainant

and the respondents to retain the evidentiary

record—including materials containing CBI—until

the expiration of any remedial order issued by the

Commission. The Memory Controllers APO

permitted counsel to retain all materials containing

CBI until the expiration of any remedial order

issued in that case. Both APOs also allowed counsel

to retain for an indefinite period documents

(including briefs and working papers) that

contained CBI and were created by the Commission,

the ALJ, or counsel.

6 58 FR 64711 (Dec. 9, 1993).

7The ITCTLA originally proposed shorter

retention periods for certain items than the table in

this memorandum indicates. The ITCTLA

subsequently joined other bar groups in the filing

of a joint submission explicitly advocating longer

retention periods. The Commission thus assumes

that the joint submission reflects the ITCTLA’s

current position on the issues presented.

section 337 APOs which (1) order the

signatories to refrain from using CBI

covered by the APO for any purpose

other than the investigation, and (2)

require signatories to destroy all CBI or

return it to the suppliers after final

termination of the investigation, (i.e.,

exhaustion of the appellate process),

absent written consent from the

suppliers to allow other uses of the CBI

or to retain the CBI for a longer period).

More recently, the Commission has

allowed its administrative law judges

(ALJs) to issue, after prior input from

the parties, APOs which deviated from

standard Commission practice by

permitting outside counsel for the

parties to retain certain CBI beyond the

exhaustion of any appeals.5

As a result of the policy issues raised

by those cases, the Commission

published an advance notice of

proposed rulemaking for 19 CFR part

210, on December 9, 1993.6 The notice

stated that the Commission was

considering revising its rules for

investigations and related proceedings

under section 337 to address two

subjects: (1) A prescribed policy of

allowing counsel who are signatories to

an APO to retain CBI from a particular

investigation after that investigation has

been finally terminated; and (2) the

possible establishment and operation of

a Commission repository for CBI, which

would be accessible to counsel of record

who signed the APO, in lieu of or in

addition to permitting post-investigation

retention of CBI by such counsel.

Comments Filed in Response to the

Advance Notice of Proposed

Rulemaking

In response to the advance notice of

proposed rulemaking, the Commission

received comments from the following

organizations: (1) The ITC Trial Lawyers

Association (ITCTLA); (2) the Section

on International Law and Practice of the

American Bar Association (ABA/SLIP);

and (3) the U.S. Patent and Trademark

Office (PTO). The Commission also

received a joint submission from four

bar groups—(1) the International Law

Section of the District of Columbia Bar,

(2) the ABA/SLIP, (3) the ITCTLA, and

(4) the Customs and International Trade

Bar Association.

No commenters favored the

establishment and operation of a

Commission repository in addition to or

in lieu of permitting counsel to retain

CBI for a prescribed period. The

comments in opposition to a repository

cited such factors as the cost to the

taxpayers, the administrative burden to

the Commission, and the lack of

corresponding benefits to parties, the

Commission, or the public at large.

The bar group commenters said that

the rules should establish a fixed policy

on post-investigation retention of CBI.

They also indicated that the

Commission’s policy should be to

permit such retention for various

periods according to the nature of the

document containing the CBI and the

status of the investigation (or related

proceeding) to which the document

pertains. The bar group commenters

also expressed the view that counsel

should be permitted to retain all

materials containing CBI at least until

the date that all appeals are exhausted,

since the information might be needed

during the appeals and any Commission

proceedings resulting from the appeals.

The joint recommendations of the bar

group commenters concerning the

retention of various categories of CBI

were as follows: 7

1. All discovery materials—Until two

years after all appeals are exhausted.

Thereafter, the materials would be

returned to the supplier or destroyed,

with written certification to each

supplier and the Commission.

2. All CBI in the possession of expert

witnesses—Until all appeals are

exhausted. Thereafter, the materials

would be returned to the supplier or

destroyed, with written certification to

each supplier and the Commission.

3. The evidentiary record—Until two

years after all appeals are exhausted or

all remedial orders have expired,

whichever is later. Thereafter, the

materials are to be returned to the

supplier or destroyed, with written

certification to each supplier and the

Commission.

4. Pleadings—Indefinitely.

5. Copies of confidential notices,

orders, recommendations, and opinions

issued by an ALJ or the Commission—

Indefinitely.

6. Working papers, briefs, and other

documents created by counsel

containing information subject to an

APO—Indefinitely.

The bar group commenters’ joint

recommendations on post-investigation

retention of specific categories of CBI

made no distinction between CBI

submitted by a third party and that

submitted by party to the investigation.

Moreover, the ITCTLA specifically

argued against such a distinction, noting

that elimination of the injury

requirement as an element of a section

337 violation in intellectual-property

based cases has diminished the role of

third-party CBI for the most part, except

in cases involving motions for

temporary relief. The ITCTLA also

argued against the promulgation of a

separate rule to cover cases in which a

third party objects to counsel’s postinvestigation retention of the third

party’s CBI. In such cases, the ITCTLA

argued, the third party should seek, by

negotiation with the parties or through

the ALJ, modification of the APO under

which such retention is to be permitted.

The PTO’s comments in response to

the advance notice of proposed

rulemaking consisted of advice

concerning the length of time that CBI

should be entitled to confidential

treatment. Specifically, the PTO

suggested that materials covered by an

APO should be declassified and made

available for public inspection

according to a declassification schedule

set forth in the Commission rules. The

PTO suggested that the declassification

schedule be based on the age of the CBI

contained in the material, instead of

how recently the material was

submitted.

The Commission’s Responses

The Commission does not agree with

the PTO’s comment that materials

covered by an APO should be

declassified and made available for

public inspection according to a

declassification schedule set forth in the

Commission rules based on the age of

the CBI contained in the material. The

Commission notes that the age of CBI is

a factor which may have a bearing on

the continuing validity of its

confidential designation. The

Commission also is cognizant, however,

that age may not be the only factor.

Moreover, section 337(n) and its

legislative history evince a clear

Congressional intent that if business

information is properly designated

confidential by the supplier and is

treated accordingly by the Commission,

the Commission is not at liberty to
Federal Register / Vol. 60, No. 27 / Thursday, February 9, 1995 / Proposed Rules 7725

8See, e.g., H.R. Rep. No. 40, 100th Cong., 1st Sess.

at 161–162 (1987); S. Rep. No. 71, 100th Cong., 1st

Sess. at 133 (1987).

9 Commissioner Rohr and Commissioner

Newquist dissent from the majority’s decision to

consider adopting the proposed rules set forth in

this notice.

Commissioner Rohr believes that the Commission

should adhere to the traditional practice of issuing

section 337 APOs which (1) order the signatories to

refrain from using CBI covered by the APO for any

purpose other than the investigation, and (2) require

signatories to destroy all CBI or return it to the

suppliers after final termination of the

investigation, (i.e., exhaustion of the appellate

process), absent written consent from the suppliers

to allow other uses or a longer period).

Commissioner Rohr also believes that the

procedures contained in the proposed rules

represent an unacceptable risk of unauthorized

disclosure of the subject CBI.

In Commissioner Newquist’s view, the

Commission’s rules should provide that postinvestigation use and retention of CBI shall be

determined by agreement of the parties, any nonparty suppliers, and the presiding ALJ in each

investigation.

release that information at a later date

absent the submitter’s consent.8 The

Commission thus believes that it would

be inappropriate to make unilateral

determinations on declassification of

CBI without consulting the suppliers or

to adopt a Commission rule that would

mandate such declassification.

The Commission also has decided

against the establishment and operation

of a Commission repository in lieu of or

in addition to allowing postinvestigation retention of CBI by

counsel. The Commission shares the bar

group commenters’ view that little

would be gained from creating such a

repository and that having a CBI access

system based on a repository would

further entangle the Commission in

enforcing APOs and would increase the

burdens of handling CBI.

The Commission is considering

revising the final part 210 rules, as

suggested by the bar group commenters,

to establish a policy of permitting the

post-investigation retention and use of

CBI by counsel. The Commission notes,

however, that for some categories of

CBI, the bar group commenters

suggested, without explanation,

retention periods that were two years

beyond exhaustion of the appeals

process or expiration of the remedial

orders. The Commission notes also that

some of the uses which the bar group

commenters have jointly or individually

proposed for CBI during the prescribed

retention periods encompass uses that

appear to be outside of the limitations

imposed by law.

As discussed in the next section of

this notice, the Commission has drafted

proposed rule provisions that

incorporate a retention schedule with

shorter deadlines for certain kinds of

CBI than the deadlines listed in the bar

group commenters’ joint submission.

The Commission also has drafted

proposed rule provisions that limit the

uses to which CBI may be put during

the prescribed retention periods. The

Commission, however, specifically

invites bar associations and other

interested persons who favor the bar

group commenters’ proposed schedule

to file comments with the Commission

on the following issues:

1. The justification for the extended

retention periods (i.e., the additional

two years) on the bar group

commenters’ proposed schedule for

certain materials containing CBI; and

2. The use(s) to which the CBI in

those materials would be put during the

extended periods.9

Proposed Rule Changes

To codify the retention schedule, use

restrictions, and other requirements

which the Commission proposes to

adopt, the Commission proposes to add

new provisions to final rules 210.5 and

210.34, rather than creating new rules.

That approach eliminates the need to

renumber the existing final rules in part

210. The new provisions which the

Commission proposes to add to final

rules 210.5 and 210.34 are described

below.

Final Rule 210.5

Final rule 210.5, entitled

‘‘Confidential business information,’’ is

the Commission’s general rule for CBI in

investigations and related proceedings

under section 337. The Commission

proposes to amend final rule 210.5 by

adding a new paragraph (f) which states

that materials containing CBI subject to

an APO issued under final rule

210.34(a) shall be retained, used,

expurgated, returned to the supplier, or

destroyed as provided in final rule

210.34(e).

Final Rule 210.34

Final rule 210.34 is the general rule

about APOs in section 337

investigations. The Commission

proposes to amend final rule 210.34 by

adding paragraph (e).

Paragraph (e)(1). Proposed paragraph

(e)(1) of final rule 210.34 incorporates

the following retention schedule:

1. All discovery materials. Until all

appeals are exhausted and thereupon

the materials would be subject to a

return or destroy rule.

2. All CBI in the possession of expert

witnesses. Same as for discovery

materials.

3. The evidentiary record. Until all

appeals are exhausted or all remedial

orders have expired, whichever is later,

and thereupon the materials would be

subject to a return or destroy rule.

4. Attorney work product.

Indefinitely, but see paragraph 7 below

regarding third-party CBI. The

Commission’s APO enforcement

responsibility would be subject to a fiveyear sunset rule, however. In general,

the Commission would no longer be

responsible for enforcing APOs five

years after the exhaustion of all appeals

or the expiration of all remedial orders,

whichever is later. If certain

information, such as trade secrets, is

still confidential, the supplier of the

information could request that the

Commission continue to enforce the

APO even though the five-year period

has expired. Such a request would have

to be made before the five-year period

expires.

5. Pleadings. Same retention period

and APO enforcement provisions as

attorney work product, but see

paragraph 7 below regarding third-party

CBI.

6. Orders, notices, initial

determinations, recommended

determinations, opinions, and other

documents issued by an ALJ or the

Commission containing CBI. Same

retention period and APO enforcement

provisions as attorney work product and

pleadings, but see paragraph 7 below

regarding third-party CBI.

7. Third-party CBI. Until all appeals

are exhausted or all remedial orders

have expired, whichever is later. The

third-party CBI would then be subject to

a return or destroy rule, even if the

information is contained in pleadings or

work product, if the third-party

suppliers so requested at the time that

they submit the information.

Proposed paragraph (e)(1) also

imposes—

1. 30-day deadlines for the return,

destruction, or expurgation of CBI when

the prescribed retention period expires,

and

2. A requirement that written

certification of such return, destruction,

or expurgation shall be provided to

suppliers and the Commission.

The Commission believes that these

requirements (and the custodian

requirement set forth in proposed

paragraph (e)(3) of final rule 210.34)

will help ensure that APO signatories

comply promptly with their obligations

to expurgate, return, or destroy CBI in

accordance with proposed paragraph

(e)(1).

Proposed paragraphs (e)(1)(iv)–(vi) of

final rule 210.34 impose a 60-day

deadline for motions to extend the
7726 Federal Register / Vol. 60, No. 27 / Thursday, February 9, 1995 / Proposed Rules

10Condensers and Memory Controllers (See supra

n.5.)

11See 19 U.S.C. 1337(n)(1) and n.8 supra.

12See 19 U.S.C. 1337(n)(2) (1988).

13See sec. 321(a)(7) of the URAA.

14 Id. at sec. 321(b)(1)(A) regarding the new 28

U.S.C. 1659(b).

15As noted in final rule 210.3, the term ‘‘related

proceedings’’ includes sanction proceedings for the

possible issuance of sanctions that would not have

a bearing on the adjudication of the merits of a

complaint or a motion under 19 CFR part 210, bond

forfeiture proceedings, proceedings to enforce,

modify, or revoke a remedial or consent order, or

advisory opinion proceedings. See 59 FR 39040–

39041 (Aug. 1, 1994), as amended at 59 FR 67626

(Dec. 30, 1994) (to be codified at 19 CFR 210.3).

Commission’s five-year APO

enforcement period (after the

exhaustion of all appeals or the

expiration of all remedial orders,

whichever is later) with respect to

pleadings, documents issued by an ALJ

or the Commission, and attorney work

product documents containing CBI.

Sixty days should be sufficient (1) to

allow nonmoving parties to respond to

the motion and (2) to allow the

Commission to decide the motion on or

before the expiration of the five-year

period.

The Commission notes one potential

problem with respect to applying the

aforesaid sunset provisions to attorney

work product. Submitters of CBI who

want the Commission to extend its

enforcement of the APO beyond the

five-year period are not likely to know

what CBI is contained in attorney work

product such as a law firm’s internal

legal memoranda concerning the

investigation. The Commission also

thinks it understandable, however, that

attorneys may want to retain their work

product from an investigation for future

reference in matters involving similar

issues. The Commission therefore

solicits comments on possible solutions

to this potential problem.

Paragraph (e)(2). Proposed paragraph

(e)(2) of final rule 210.34 restricts the

uses to which CBI may be put during

the prescribed retention periods. The

bar groups who commented in response

to the Commission’s advance notice of

proposed rulemaking (and the

participants and commenters in the

investigations that prompted this

rulemaking) 10 urged the Commission to

approve retention of CBI by counsel for

one or more of the uses and purposes

enumerated below:

1. To provide legal advice and other

legal services to clients in connection

with the following matters:

To comply with a remedial or other

Commission order issued in connection

with the investigation or related

proceeding;

To initiate—or to defend against—

administrative or judicial proceedings

concerning enforcement, modification,

or revocation of such orders or advisory

opinion proceedings; or

To enforce or avoid infringement of

an intellectual property right asserted in

the investigation.

2. To reduce costs, save time,

minimize duplication of effort, and

facilitate participation in the following

kinds of proceedings:

Commission proceedings to enforce,

modify, or revoke a remedial order, a

consent order, or other Commission

order;

Commission advisory opinion

proceedings;

U.S. Customs Service proceedings to

enforce or monitor compliance with an

exclusion order;

Commission or Customs proceedings

for the forfeiture of a bond posted by a

complainant or a respondent;

Civil actions involving some or all of

the same parties and subject matter as

the investigation (with a view toward

asserting res judicata or collateral

estoppel in some kinds of cases);

Civil actions against a section 337

complainant for the filing of

unwarranted section complaint; or

Civil actions for attorney malpractice

in an investigation or a related

proceeding.

3. To have unrestricted use of legal

research and nonconfidential

information in working papers, briefs,

and other documents created by counsel

which contain CBI.

Although section 337(n)(1) and its

1987 legislative history explicitly

discuss the ‘‘disclosure’’ or ‘‘release’’ of

CBI, 11 there is an implicit restriction on

the use of CBI (in the absence of consent

from the submitter(s)), which appears to

bar some uses that the current

commenters and other interested

persons have suggested—namely, use of

CBI in civil actions. In the absence of

consent from the submitter, section 337

(n)(1) prohibits disclosure of CBI to

anyone other than (1) persons granted

access under a Commission APO and (2)

certain categories of Government

employees listed in section 337(n)(2).

The categories in section 337(n)(2)

previously were limited to Commission,

Customs Service, and other U.S.

Government personnel who are

involved in the subject investigation,

Presidential review of a remedial order

issued in that investigation, or the

administration or enforcement of an

exclusion order issued in the case.12

Amendments to section 337(n)(1) and

title 28 of the United States Code were

promulgated in the URAA. Section

337(n) was amended to broaden the

categories of Government employees

who may have access to CBI.13 Title 28

of the United States Code was amended

to include a new section requiring the

Commission to forward the

administrative records of section 337

investigations to district courts for use

in some, but not all, civil actions

involving the same parties and subject

matter as the subject investigations.14

The URAA amendments thus do not

address most of the civil action uses of

CBI advocated by the commenters and

other interested persons.

Proposed paragraph (e)(2) of final rule

210.34 accordingly states that CBI

which is retained pursuant to paragraph

(e)(1) of final rule 210.34 shall not be

used during the prescribed retention

period for any purposes other than those

relating to the subject investigation or a

related proceeding under section 337,15

except for additional uses that are

permitted by law (e.g., the new section

of title 28) or provided for in a written

agreement with the supplier.

Paragraph (e)(3). Proposed paragraph

(e)(3) of final rule 210.34 states that each

law firm whose attorneys are signatories

to an APO in an investigation or a

related proceeding shall designate one

attorney signatory from the firm as the

custodian of the CBI and the person

responsible for ensuring that the

requirements of proposed paragraphs

(e)(1)–(e)(2) of final rule 210.34 are

satisfied. It is not uncommon for

attorneys to change firms and for

documents containing CBI to be shipped

around firms. The Commission’s

concern is not that the documents are

likely to be lost, but that the firms may

lose sight of the obligations imposed by

the APO. Requiring the firm to have a

custodian will reduce the likelihood of

that occurring.

The Commission is cognizant that

there may come a time during the

prescribed retention period(s) when a

law firm’s custodian is no longer willing

or able to serve in that capacity. If that

happens, the firm always has the option

of promptly returning or destroying the

CBI. However, if the firm wishes to

continue to retain the CBI but to change

custodians, the questions are whether a

change of custodianship should be

permitted and, if so, how the change

should be effected.

Proposed paragraph (e)(3) final rule

210.34 currently does not contain

provisions governing the changing of

custodians. The Commission is

considering whether to revise paragraph

(e)(3), however, to include such

provisions. One option would be to
Federal Register / Vol. 60, No. 27 / Thursday, February 9, 1995 / Proposed Rules 7727

16See, e.g., Inv. No. 337–TA–265, Certain Dental

Prophylaxis Methods, Equipment, and Components

Thereof, Initial Determination at 5–6 (Jan. 22, 1988),

unreviewed by the Commission, 53 FR 6709 (Mar.

2, 1988); Certain Doxorubicin and Preparations

Containing Same, Inv. No. 337–TA–300,

Commission Memorandum Opinion at 7–8, (May

31, 1991); Electric Power Tools, Battery Cartridges,

and Battery Chargers, Commission Memorandum

Opinion (July 2, 1991) at 3–4.

revise paragraph (e)(3) to provide as

follows:

1. If the firm wishes to continue to retain

the CBI but to change custodians, the

proposed new custodian must be a attorney

in the firm who is already a signatory to the

APO. The change is to be effected by serving

a notice on the parties, the appropriate thirdparty suppliers (if any), and the Secretary.

2. If there are no lawyers left in the firm

who are signatories to the APO and the firm

wishes to continue to retain the CBI but to

change custodians, the firm must file a

motion with the Commission and serve

copies on the parties and third-party

suppliers. The motion must request APO

signatory status for the proposed new

custodian as well as leave to designate that

attorney as the firm’s new custodian. The

motion will not be granted unless

information contained in the materials held

by the firm is still entitled to confidential

treatment and the Commission still has a

duty to enforce the governing APO with

respect to that information.

The Commission is particularly

interested in receiving comments on (1)

whether it should revise paragraph

(e)(3) of final rule 210.34 to codify a

procedure for changing custodians, and,

(2) if so, whether that procedure should

consist of the steps enumerated above or

should entail different steps.

Paragraph (e)(4). Although proposed

paragraph (e)(1) establishes prescribed

periods for post-investigation retention

of CBI, the Commission believes that

parties and third-party suppliers should

not be precluded from negotiating time

limits or other conditions that are more

strict than the maximums set by the

Commission. The Commission also

believes, however, that the proposed

rules should avoid imposing

unnecessary burdens on the

Commission for monitoring APO

compliance.

Proposed paragraph (e)(4) of final rule

210.34 accordingly states that parties

and third-party suppliers may agree to

retention periods, uses, custodial

arrangements, or other conditions which

differ from those imposed by proposed

paragraphs (e)(1)–(e)(3). Paragraph (e)(4)

goes on to say, however, that the

Commission will not be responsible for

policing the retention, uses, custodial

arrangements, and other conditions

relating to the subject CBI in accordance

with such an agreement. That policy is

consistent with Commission

precedent.16

Paragraph (e)(4) further provides that

when agreements are entered to

retention periods, uses, custodial

arrangements, or other conditions which

differ from those imposed by proposed

paragraphs (e)(1)–(e)(3), a copy of the

agreement must be filed with the

Commission or with the presiding ALJ

(as the case may be). One purpose of

this filing requirement is to give the

Commission or the ALJ notice as to

which of the APO provisions have been

superceded by the agreement. Another

purpose is to avoid placing the

Commission or the ALJ in the position

of having to adjudicate whether in fact

an agreement was entered, if a dispute

over that issue should arise at a later

date.

PART 210—ADJUDICATIVE

PROCEDURES

1. The authority citation for part 210

will continue to read as follows:

Authority: 19 U.S.C. 1333, 1335, and 1337.

2. For the reasons set forth in the

preamble, the Commission proposes to

amend § 210.5 by adding a new

paragraph (f) which reads as follows:

§ 210.5 Confidential business information.

* * * * *

(f) Disposition of confidential

business information. Materials

containing confidential business

information that are subject to a

protective order issued under

§ 210.34(a) of this part shall be retained,

used, expurgated, returned to the

supplier, or destroyed as provided in

§ 210.34(e).

3. For the reasons set forth in the

preamble, the Commission proposes to

amend § 210.34 by adding paragraph (e)

which reads as follows:

§ 210.34 Protective orders.

* * * * *

(e) Disposition of confidential

information. (1) Unless the Commission

or an administrative law judge orders or

a written agreement between parties and

suppliers states otherwise, confidential

information acquired pursuant to a

protective order issued under paragraph

(a) of this section shall be expurgated,

returned to the supplier, or destroyed as

provided below.

(i) All discovery materials containing

confidential information may be

retained until all appeals are exhausted.

Within 30 days thereafter, the materials

shall be returned to the supplier or

destroyed and written certification of

such return or destruction shall be

provided to each supplier and the

Commission.

(ii) All materials in the possession of

expert witnesses that contain

confidential information may be

retained until all appeals are exhausted.

Within 30 days thereafter, the materials

shall be returned to the supplier or

destroyed and written certification of

such return or destruction shall be

provided to the supplier and the

Commission.

(iii) All materials on the evidentiary

record that contain confidential

information may be retained until all

appeals are exhausted or all remedial

orders issued in the investigation or a

related proceeding have expired,

whichever is later. Within 30 days

thereafter, the materials shall be

returned to the supplier or destroyed

and written certification of such return

or destruction shall be provided to each

supplier and the Commission.

(iv) Except as provided in paragraph

(e)(1)(viii) of this section, all pleadings

containing confidential information may

be retained indefinitely.

Notwithstanding such retention, the

Commission shall not be responsible for

enforcing the governing protective order

with respect to the pleadings for more

than five years after the exhaustion of

all appeals or the expiration of all

remedial orders, whichever is later. If

information in the pleadings will still be

confidential after the five-year period

has expired, the supplier of the

information may file a motion to have

the Commission extend its enforcement

of the protective order with respect to

the pleadings beyond the prescribed

five-year period. Such motions must be

filed at least 60 days before the five-year

period expires.

(v) Except as provided in paragraph

(e)(1)(viii) of this section, all notices,

orders, initial determinations,

recommended determinations, opinions,

and other documents issued by an

administrative law judge or the

Commission that contain confidential

information may be retained

indefinitely. Notwithstanding such

retention, the Commission shall not be

responsible for enforcing the governing

protective order with respect to the

aforesaid materials for more than five

years after the exhaustion of all appeals

or the expiration of all remedial orders,

whichever is later. If information in the

materials will still be confidential after

the five-year period has expired, the

supplier of the information may file a

motion to have the Commission extend

its enforcement of the protective order

with respect to the materials beyond the

prescribed five-year period. Such
7728 Federal Register / Vol. 60, No. 27 / Thursday, February 9, 1995 / Proposed Rules

motions must be filed at least 60 days

before the five-year period expires.

(vi) Except as provided in paragraph

(e)(1)(viii) of this section, all attorney

work product containing confidential

information may be retained

indefinitely. Notwithstanding such

retention, the Commission shall not be

responsible for enforcing the governing

protective order with respect to the

work product for more than five years

after the exhaustion of all appeals or the

expiration of all remedial orders,

whichever is later. If information that

may be contained in the work product

will still be confidential after the fiveyear period has expired, the supplier of

the information may file a motion to

have the Commission extend its

enforcement of the protective order with

respect to the work product beyond the

prescribed five-year period. Such

motions must be filed at least 60 days

before the five-year period expires.

(vii) All confidential information

supplied by third parties may be

retained until all appeals are exhausted

or all remedial orders have expired,

whichever is later. If the third party’s

information appears in a document

other than a pleading, a document

issued by an administrative law judge or

the Commission, or a document

constituting attorney work product, the

document shall be returned to the

supplier or destroyed, and written

certification of such return or

destruction shall be provided to each

supplier and the Commission within 30

days after all appeals are exhausted or

all remedial orders have expired,

whichever is later. If the third party’s

information appears in a pleading, a

document issued by an administrative

law judge or the Commission, or a

document constituting attorney work

product, the document may be retained

indefinitely in accordance with

paragraph (e)(1)(iv), (e)(1)(v), or

(e)(1)(vi) of this section. However, the

third party may request that its

information be expurgated from the

document pursuant to paragraph

(e)(1)(viii).

(viii) If the third-party supplier so

requests at the time that its confidential

information is supplied and if the thirdparty supplier’s confidential

information is contained in pleadings,

documents issued by an administrative

law judge or the Commission, or

attorney work product, within 30 days

after all appeals are exhausted or all

remedial orders have expired,

whichever is later, any law firm in

possession of such pleadings,

documents, or work product shall

expurgate the third-party supplier’s

confidential information from the

pleadings, documents, or work product

and provide written certification of the

expurgation to the third-party supplier

and the Commission.

(2) Except as required by law or as

provided in a written agreement with

the supplier, the confidential

information contained in the materials

enumerated in paragraph (e)(1) of this

section shall not be used during the

retention periods specified in paragraph

(e)(1) of this section for any purposes

other than those relating to the subject

investigation or a related proceeding

under this part.

(3) On or before the commencement of

the retention periods specified in

paragraph (e)(1) of this section, each law

firm whose attorneys are signatories to

a protective order in an investigation or

a related proceeding under this part

shall designate one attorney signatory

from the firm as the custodian of the

information and the person responsible

for ensuring that the requirements of

paragraphs (e)(1)–(e)(2) of this section

are satisfied. Notice of the designation

shall be served on the parties, the

appropriate third-party suppliers (if

any) and the Secretary.

(4) Parties and suppliers may agree to

retention time limits, uses, custodial

arrangements, or other conditions that

differ from those set forth in paragraphs

(e)(1)–(e)(3) of this section. When such

an agreement is reached, a copy must be

filed with the Commission or the

presiding administrative law judge (as

the case may be). Neither the

Commission nor the administrative law

judge shall be responsible, however, for

policing the retention, uses, custodial

arrangements, and other conditions

relating to the subject confidential

information in accordance with the

agreement.

Issued: February 3, 1995.

By Order of the Commission.

Donna R. Koehnke,

Secretary.

[FR Doc. 95–3140 Filed 2–8–95; 8:45 am]

BILLING CODE 7020–02–P

RAILROAD RETIREMENT BOARD

20 CFR Part 217

RIN 3220–AB08

Application for Annuity or Lump Sum

AGENCY: Railroad Retirement Board.

ACTION: Proposed rule.

SUMMARY: The Railroad Retirement

Board (Board) proposes to amend its

regulations to enable the Board to pay

the following benefits without requiring

additional applications therefor: (1) An

accrued annuity due at the death of a

spouse or former spouse to a railroad

employee receiving an annuity based on

the same earnings record; and (2) a fulltime student’s annuity if the student

was entitled to a child’s annuity in the

month before the month the child

attained age 18.

DATES: Comment shall be submitted on

or before March 13, 1995.

ADDRESSES: Secretary to the Board,

Railroad Retirement Board, 844 Rush

Street, Chicago, Illinois 60611.

FOR FURTHER INFORMATION CONTACT:

Michael C. Litt, Bureau of Law, Railroad

Retirement Board, 844 Rush Street,

Chicago, Illinois 60611, (312) 751–4929,

TDD (312) 751–4701.

SUPPLEMENTARY INFORMATION: Section

217.8 of the Board’s regulations

specifies a list of benefits paid by the

Board which may be paid based on a

previously-filed application (i.e., where

a new application is not required). The

proposed rule would add to that list the

cases where an accrued annuity is due

at the death of a spouse or former

spouse to a railroad employee receiving

an annuity based on the same earnings

record as the spouse or former spouse

and where a full-time student’s annuity

is payable if the student was entitled to

a child’s annuity in the month before

the month the child attained age 18. In

those cases there is no additional

information contained in the

applications and there is no utility to

the Board in requiring additional

applications. Using the earlier

application reduces paperwork and the

burden on persons claiming benefits.

The Board, in conjunction with the

Office of Management and Budget, has

determined that this is not a significant

regulatory action for purposes of

Executive Order 12866. Therefore, no

regulatory impact analysis is required.

There are no information collections

associated with this rule.

List of Subjects in 20 CFR Part 217

Railroad employees, Railroad

retirement.

For the reasons set out in the

preamble, title 20, chapter II, part 217 of

the Code of Federal Regulations is

proposed to be amended as follows:

PART 217—APPLICATION FOR

ANNUITY OR LUMP SUM

1. The authority citation for part 217

continues to read as follows:

Authority: 45 U.S.C. 231d and 45 U.S.C.

231f.