[Federal Register Volume 60, Number 27 (Thursday, February 9, 1995)]
[Proposed Rules]
[Pages 7723-7728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3140]



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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.

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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\

    \1\Commissioners 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.
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    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\

    \2\See 59 FR 39020, Part II (Aug. 1, 1994).
    \3\Id.
    \4\See 59 FR 67622 (Dec. 30, 1994).
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    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 [[Page 7724]] 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\

    \5\See, 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.
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    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.

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

    \7\The 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.
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    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 post-investigation 
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 
[[Page 7725]] 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.

    \8\See, 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).
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    The Commission also has decided against the establishment and 
operation of a Commission repository in lieu of or in addition to 
allowing post-investigation 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.<SUP>9

    \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 post-investigation use and retention of CBI shall be 
determined by agreement of the parties, any non-party suppliers, and 
the presiding ALJ in each investigation.
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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 five-year 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 [[Page 7726]] 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)<SUP>10 urged the Commission to approve retention of CBI by 
counsel for one or more of the uses and purposes enumerated below:

    \10\Condensers and Memory Controllers (See supra n.5.)
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    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,<SUP>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.<SUP>12

    \11\See 19 U.S.C. 1337(n)(1) and n.8 supra.
    \12\See 19 U.S.C. 1337(n)(2) (1988).
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    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.<SUP>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.<SUP>14 The URAA amendments thus 
do not address most of the civil action uses of CBI advocated by the 
commenters and other interested persons.

    \13\See sec. 321(a)(7) of the URAA.
    \14\Id. at sec. 321(b)(1)(A) regarding the new 28 U.S.C. 
1659(b).
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    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,<SUP>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.

    \15\As 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).
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    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 [[Page 7727]] 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 third-
party 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.<SUP>16

    \16\See, 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.
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    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 Sec. 210.5 by adding a new paragraph (f) which reads 
as follows:


Sec. 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 Sec. 210.34(a) of this part shall be 
retained, used, expurgated, returned to the supplier, or destroyed as 
provided in Sec. 210.34(e).
    3. For the reasons set forth in the preamble, the Commission 
proposes to amend Sec. 210.34 by adding paragraph (e) which reads as 
follows:


Sec. 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 
[[Page 7728]] 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 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 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 third-party 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