Federal Register /Vol. 63, No. 85/Monday, May 4, 1998 ... · Federal Register/Vol. 63, No....

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

DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Parts 351 and 354

[Docket No. 960123011–8040–02]

RIN 0625–AA43

Antidumping and Countervailing DutyProceedings: Administrative ProtectiveOrder Procedures; Procedures forImposing Sanctions for Violation of aProtective Order

AGENCY: International TradeAdministration, Commerce.ACTION: Final rule.

SUMMARY: The Department of Commerce(‘‘the Department’’) is amending itsregulations on administrative protectiveorder (‘‘APO’’) procedures inantidumping and countervailing dutyproceedings to simplify and streamlinethe APO administrative process andreduce the administrative burdens onthe Department and trade practitioners.The Department is also amending theregulations to simplify the proceduresfor investigating alleged violations ofAPOs and the imposition of sanctions.These changes are made in response toand in cooperation with the tradepractitioners that are subject to theserules.EFFECTIVE DATE: The effective date ofthis final rule is June 3, 1998. This finalrule will apply to all investigationsinitiated on the basis of petitions filedon or after June 3, 1998, and othersegments of proceedings initiated afterthis date.FOR FURTHER INFORMATION CONTACT: Forfurther information contact Joan L.MacKenzie or Mark A. Barnett, Office ofChief Counsel for ImportAdministration, (202) 482–1310 or (202)482–2866, respectively.SUPPLEMENTARY INFORMATION:

General Background

APO Procedures

On February 8, 1996, the Departmentpublished proposed rules governingprocedures for providing access tobusiness proprietary informationsubmitted to the Department by otherparties in U.S. antidumping (‘‘AD’’) andcountervailing duty (‘‘CVD’’)proceedings. Proposed Rule and Requestfor Comment (Antidumping andCountervailing Duty Proceedings;Administrative Protective OrderProcedures; Procedures for ImposingSanctions for Violations of a ProtectiveOrder), 61 FR 4826 (‘‘February Notice’’).See also, Proposed Changes to

Administrative Protective OrderProcedures in Antidumping andCountervailing Duty Proceedings, APOApplication Form and Standard APO,59 FR 51559 (October 12, 1994)(‘‘October Notice’’).

The Department proposed thesechanges in APO procedures inconsultation with trade practitioners,who are the ones most directly affectedby these procedures. Specifically,Department staff consulted withrepresentatives of the International LawSection of the District of Columbia Bar,the International Trade Committee ofthe Section of International Law andPractice of the American BarAssociation, the ITC Trial LawyersAssociation, and the Customs andInternational Trade Bar Association. Asa result of the consultations, theDepartment proposed changes in theAPO process to improve the process, tosimplify and streamline the process forall concerned, including theDepartment, and at the same time tocontinue to ensure protection ofbusiness proprietary information fromunauthorized disclosure.

After analyzing and carefullyconsidering all of the comments that theDepartment received in response to theFebruary Notice and after further reviewof the provisions of the proposed rule,the Department is publishing finalregulations. These regulations improve,simplify, and streamline the APOprocess significantly and, at the sametime, protect business proprietaryinformation from unauthorizeddisclosure.

Effective DateThe new APO procedures, including

the use of the revised application forAPO, form ITA–367 (5.98), will becomeeffective June 3, 1998. They will applyto all investigations initiated on thebasis of petitions filed on or after June3, 1998, and other segments ofproceedings initiated after this date.Segments of proceedings to which theseregulations do not apply will continueto be governed by the regulations ineffect on the date the petitions werefiled or other segments were initiated, tothe extent that those regulations werenot invalidated by the URAA orreplaced by the interim final regulationspublished on May 11, 1995 (60 FR25130 (1995)) and § 351.105 of the AD/CVD procedural regulations that theDepartment published separately onMay 19, 1997 (62 FR 27296),(hereinafter referred to as the May 19Regulations). In these segments ofproceedings, the Department willrequire that parties use the old APOapplication form ITA–367 (3.89) for all

requests to amend their existing APOs.If all parties in these segments ofproceedings mutually agree to be boundby the new APO regulations andprocedures, the parties must file a jointagreement and new applications forAPO.

APO Sanctions

The Department is also amending itsregulations concerning sanctions forviolations of APOs. The regulationsgoverning the imposition of sanctionsfor APO violations are set forth at 19CFR Part 354. In the nine years sincePart 354 was introduced, theDepartment has investigated andresolved numerous allegations ofviolations of APOs. Most charges havebeen settled, and none has resulted ina hearing before a presiding official ora decision by the APO Sanctions Board.Experience also has proven that, even ifan individual has technically violatedthe terms of an APO, it is not alwaysappropriate to impose a sanction.Rather, a warning may be appropriate inmany instances. The Department alsohas found that situations arise in whichthe investigation can be shortenedwithout limiting procedural rights.Additionally, under current regulations,it is unduly cumbersome to withdrawcharges when the Departmentdetermines that they are not warranted.Finally, the Department recognizes thatan individual with prior violationsdeserves to have his or her recordcleared after a period of time withoutfurther violations. Therefore, theDepartment is amending Part 354 of itsregulations to articulate a standard forissuance of a warning of an APOviolation and to address the othersituations described above.

The Department is amending theregulations to simplify the proceduresfor investigating alleged violations andthe imposition of sanctions, establishcriteria for abbreviating theinvestigation of an alleged violation,include private letters of reprimandamong the sanctions available, and seta policy for determining when theDepartment issues warnings instead ofsanctions. Further, the Department isrevising the provisions dealing withsettlement to make them consistent withpractice. The Department also issimplifying the procedures forwithdrawing charging letters. Finally,the amendments add a sunset provisionthat codifies existing practice regardingthe 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 regulationswere contained in 19 CFR Part 353 andits CVD regulations were contained in19 CFR Part 355. Parts 353 and 355 eachcontained separate provisions dealingwith the treatment of businessproprietary information and APOprocedures. The Departmentconsolidated the AD and CVDregulations and repealed existing Parts353 and 355. See Antidumping Duties;Countervailing Duties; Final rule, 62 FR27295 (May 19, 1997). We have draftedthe regulations dealing with APOprocedures in light of thisconsolidation. Accordingly, theseregulations will be contained in 19 CFRPart 351, subpart C. More specifically,with the exception of the definitionalprovisions of § 351.102, the APOprocedures will be contained in 19 CFR351.304, 305, and 306. The proceduresfor imposing sanctions for violation of aprotective order are contained in 19 CFR354.

Definitions

Section 351.102 is a definitionalsection, based on previous 19 CFR 353.2and 355.2. It was published separatelywith the May 19 regulations. Insofar asAPO procedures are concerned, weadded definitions of two new terms,now contained in the administrativeprotective order. Because thesedefinitions apply to APO procedures,we are discussing them here.

The first term, applicant, is defined asan individual representative of aninterested party that has applied foraccess to business proprietaryinformation under an APO. The secondterm, ‘‘authorized applicant,’’ is definedas an applicant that the Secretary hasauthorized to receive businessproprietary information under an APO,and is a term borrowed from thepractice of the U.S. International TradeCommission (‘‘ITC’’).

One commenter noted that thedefinition of ‘‘applicant’’ contained inthe Proposed AD/CVD ProceduralRegulations was inconsistent with thedescription of that definition in thepreamble to the February Notice. Thiscommenter also suggested that adefinition of ‘‘representative’’ be addedto the regulations.

We revised the definition of‘‘applicant’’ to make it consistent withthe description of that term providedabove. The term ‘‘representative’’ wasdefined in the model APO publishedwith the February Notice. We haverevised that definition to refer to an

individual, enterprise or entity acting onbehalf of an interested party.

Administrative Protective Order Unitand Central Records Unit

Section 351.103 defines theresponsibilities of the Central RecordsUnit and the Administrative ProtectiveOrder Unit, both of which play a roleprotecting business proprietaryinformation. The APO Unit wasestablished with the reorganization ofthe Department that became effectiveJuly 1, 1996. Under the reorganization,the APO function is consolidated underthe Director for Policy and Analysis,and is managed by a Senior APOSpecialist who leads the APO Unit. TheSenior APO Specialist is responsible fordirecting the Department’s handling ofbusiness proprietary information.

The Administrative Protective OrderUnit and the Dockets Center of theCentral Records Unit have recently beenrelocated to shared space in room 1870.Because of the proximity of the twooffices, business proprietary informationreleased by the APO Unit to authorizedrepresentatives is conducted throughthe Dockets Center. Because therelocation of the Dockets Centeroccurred after the publication of theAD/CVD procedural regulations, we aretaking this opportunity to amend§ 351.103 to reflect these changes.Pursuant to Presidential order, securityhas been increased in Federal officebuildings and delivery couriers are nolonger permitted access to the Herbert C.Hoover Building (HCHB). Consequently,Import Administration has created theDockets Center in Room 1870. TheDockets Center is accessible directlyfrom the 15th Street courier’s entranceto HCHB. Prior to being allowed in thebuilding at this entrance all packagesare scanned by Departmental securitypersonnel. APO materials are picked upat this entrance from the APO Unit.

Section 351.304 Establishing BusinessProprietary Treatment of Information.

Section 351.304 sets forth rulesconcerning the treatment of businessproprietary information in general, andprovides persons with the right torequest that certain information beconsidered business proprietary or beexempt from disclosure under APO.

Customer NamesOne commenter noted that section

777(c)(1)(A) of the Tariff Act of 1930, asamended, (‘‘Act’’) protects customernames from disclosure under APO in aninvestigation only until an order ispublished or the investigation issuspended or terminated, and suggestedthat the regulation should be revised to

reflect this. We have not revised theregulation. The statute does not requirethe Department to disclose customernames under APO following publicationof an order or following suspension ortermination of the investigation. If theDepartment’s final determination ischallenged, parties may obtain access tocustomer names under the terms of ajudicial protective order. Absent suchlitigation, we do not believe it necessaryor appropriate to require parties todisclose additional information underprotective order after an investigationhas been completed, suspended orterminated.

Identification of Business ProprietaryInformation

Paragraph (b) of § 351.304 addressesthe identification and marking ofbusiness proprietary information insubmissions to the Department.

One commenter argued that theDepartment should clarify how therequirement to mark businessproprietary information applies tomaterials in exhibits such as printouts,drawings, photographs, excerpts frombrochures and other similar materials.The commenter pointed out that suchmaterials are not always clearlyidentified as business proprietary,leaving the recipient to refer to thepublic version to determine whetherany particular data are in fact claimedto be confidential.

The Department agrees that allbusiness proprietary information shouldbe marked in accordance with theregulations. This includes allverification exhibits. It is in the interestof all parties to prevent inadvertent APOviolations that can occur when markingis incomplete or inaccurate. Werecognize that marking printouts andvoluminous exhibits presentschallenges. Printouts may consist almostentirely of business proprietaryinformation, with public informationlimited to certain headings or fields. Insuch cases, it may be easier for anauthorized applicant to distinguishbetween public and proprietaryinformation by reviewing the publicversion rather than searching forbrackets in a document that containsnearly all business proprietaryinformation. Moreover, becausebracketing may be revised by a partywithin one day of the date of filing (seebelow), authorized applicants areencouraged to confirm theiridentification of public information bycomparison to the public version sourcein order to avoid an inadvertent releaseof business proprietary information.

If a party objects to the submittingperson’s claim for business proprietary


treatment, the objection must besubmitted in writing. The APO Unit isthe point of contact for examining andresolving the issue whether informationthat is claimed as proprietary meets thestandards in § 351.105 of the AD/CVDprocedural regulations that theDepartment published separately onMay 19, 1997.

Public VersionsParagraph (c) of § 351.304 concerns

the public version of a businessproprietary submission, provides for aone-day lag rule (see also§ 351.303(c)(2)), and addressescorrections to errors in bracketingbusiness proprietary information. Wereiterate that the Secretary will enforcevigorously the requirement for publicsummaries, and will grant claims thatsummarization is impossible only inexceptional circumstances. To assist inensuring consistent enforcement of theDepartment’s requirements for publicsummarization of numerical data andnarrative portions of submissions, theAPO Unit is the point of contact forexamining and resolving complaintsabout inadequate public summaries.

One-Day Lag RuleThe one-day lag rule follows existing

practice by permitting parties to file apublic version of a document containingbusiness proprietary information onebusiness day after the due date of thebusiness proprietary version of thedocument. This practice is known as the‘‘one-day lag’’ rule. Under currentpractice, submitting persons may correctthe bracketing of information in thebusiness proprietary version up to thedeadline for submission of the publicversion (i.e., they have one day in whichto correct bracketing). The Departmentproposed to slightly modify the one-daylag rule to require a party to file the finalbusiness proprietary version of thedocument at the same time as thesubmitting party files the public versionof the document. The specific filingrequirements are contained in § 351.303of the AD/CVD Procedural Regulationsthat the Department publishedseparately on May 19, 1997. Commentson this provision were addressed inthose regulations.

One commenter expressed concernregarding improper disclosure of APOprotected information and theDepartment’s statement that non-bracketed information will be treated aspublic information once bracketing hasbecome final. We believe, however, thatthe commenter misunderstood theDepartment’s statement. The statementonly pertains to a party’s own businessproprietary information contained in a

document it has submitted. TheDepartment will always take and requireimmediate corrective action wheninformation subject to an APO has beenimproperly disclosed and discovered ina reasonable amount of time.

Summarization of Numerical DataOne commenter argued that public

summarization of numerical data shouldnot be required, because the ITC doesnot require it. Other commentersrequested that specific guidelines forsummarization of numerical data beincluded in the regulation. Somecommenters requested greater flexibilityin ranging numbers that are very largeor very small.

As one commenter recognized, apublic summary, which is addressed inparagraph (c)(1), is required by section777(b)(1)(B) of the Act and Article 6.5.1of the Agreement on Implementation ofArticle VI of the General Agreement onTariffs and Trade 1994 (‘‘ADAgreement’’). Public summarization ofnumerical data is crucial to the abilityof parties to participate in theDepartment’s proceedings. Withoutadequate public summarization,interested parties without APO accesswill not be able to participatemeaningfully in the Department’sproceedings. The Department, therefore,will continue to require summarizationof numerical data.

While there may be some benefits toconsistent treatment of businessproprietary information between theDepartment and the ITC, there aredifferences in each agency’s missionthat justify individual practices.Summarization of company-specificnumerical information at the ITC ismore difficult because the informationconcerns a company’s performanceusing ‘‘macro’’ numbers and projecteddata. Moreover, in most cases, the ITCprovides aggregate data where suchinformation would not reveal anindividual company’s businessproprietary information. It is thisaggregate data, which is often availableto the public, which is most relevant tothe ITC’s analysis and determinations.Information in the Department’sproceedings, on the other hand, is oftentransaction-specific, ‘‘micro’’information. Such information would bedifficult to aggregate across companiesand such aggregate data would be ofalmost no relevance to the Department’sanalysis and the public’s understandingof that analysis. Therefore, it ispreferable to continue to require thatsuch information be ranged or indexed.

Omission of specific criteria forpublic summarization of numerical datapreviously contained in §§ 353.32(b)(1)

and 355.32(b)(1) was an oversight. Weare including the criteria for adequatesummarization in § 351.304(c)(1) ofthese regulations. The Department hasalways allowed an exception to thepublic summarization requirementwhen it does not protect businessproprietary information from disclosure,such as with very small or very largenumbers. We will continue to permitsuch exceptions on a case-by-case basisin accordance with the requirements of§ 351.304(c)(1).

Summarization of Narrative Portions ofSubmissions

One commenter argued that requiringa public summary of the narrativeportion of a submission is a change inpolicy not required by the UruguayRound Agreements Act (URAA) and istoo burdensome. The commenterasserted that the proposed regulationwill add hundreds of hours andthousands of dollars to the costs ofparticipating in these cases. Finally, thecommenter stated that the proposedregulation appears to create apresumption that all businessproprietary information is public unlessproven otherwise, which reversesagency practice designed to protectbusiness proprietary information againstdisclosure.

The commenter is mistaken that theDepartment’s regulation constitutes achange in practice. The Department hasconsistently required a public summaryof the narrative portion of a submissioncontaining business proprietaryinformation.

Laws affecting disclosure ofinformation by the federal governmentgenerally are pro-disclosure. The UnitedStates has the most transparentantidumping and countervailing dutyprocedures in the world. Protection ofbusiness proprietary information is anarrow exception to the requirement fordisclosure and the preference fortransparency. For these reasons, theregulations require parties todemonstrate that business proprietaryinformation should be withheld fromdisclosure, rather than the reverse.There is a presumption that businessproprietary information can be publiclysummarized to permit meaningfulparticipation by a party that does nothave access to business proprietaryinformation under APO.

Summarization of Business ProprietaryInformation of Other Parties

Three commenters raised concernswhether § 351.304(c)(1) requiresauthorized applicants to create publicsummaries of business proprietaryinformation submitted by other parties.


It does not. The Department has neverrequired authorized applicants topublicly summarize the businessproprietary information of another partyand the Department does not intend tochange that practice. In fact, § 351.304(c)(1) states that a submitter should notcreate a public summary of businessproprietary information of anotherperson.

Nonconforming SubmissionsParagraph (d) of § 351.304 deals with

nonconforming submissions, i.e.,submissions that do not conform to therequirements of section 777(b) of theAct and paragraphs (a), (b), and (c) of§ 351.304.

One commenter expressed concernthat this provision might be abused byparties making unwarranted claims of aclear and compelling need to withholdbusiness proprietary information fromdisclosure under APO merely to delayrelease of that information and therebyimperil the ability of other parties toparticipate in the proceeding in a timelyfashion. Although we appreciate theconcerns of the commenter, we do notbelieve that revision of the regulation isnecessary. In most cases, theDepartment has been able to makedeterminations as to the status ofinformation in much less than 30 days,and we expect that to continue to be thecase. As written, the regulation providesgreater flexibility for thosedeterminations which may require moretime for decision.

The Department does not believe thatthe regulation, as drafted, will lead tosignificant abuse. The Department’scurrent experience has involved fewsituations of abuse. To the extent thatbaseless claims for non-release ofinformation do occur, the Departmentretains the authority to deal with themexpeditiously.

Another commenter proposed that theDepartment amend this regulation topermit the Secretary to return any partof a submission that does not meet therequirements of the regulations. We donot agree. For the same reasons theDepartment revised the one-day lag ruleto require a new complete submission ofa document that required correction, wealso will require a complete newsubmission of any document returnedbecause parts of it are defective.

Section 351.305 Access to BusinessProprietary Information

Section 351.305 establishesprocedures for obtaining businessproprietary information under APO,including a new procedure based on theuse of a single APO for each segment ofa proceeding.

The Revised APO

Paragraph (a) of § 351.305 sets forth anew procedure in which the Secretarywill place a single APO on the recordfor each segment of an AD or CVDproceeding, within two days after apetition is filed, or an investigation isself-initiated, or five days after theinitiation of any other segment.(‘‘Segment of the proceeding’’ is definedin § 351.102 as a portion of theproceeding that is reviewable undersection 516A of the Act.) All authorizedapplicants will be subject to the termsof this single APO. This new procedurewill streamline the APO processdramatically, and will expedite theissuance of APOs and the disclosure ofinformation to authorized applicants.Commenters strongly endorsed this newprocedure, and agree it will streamlinethe APO process and expedite theissuance of APOs and the disclosure ofinformation to authorized applicants.

APO Requirements

Paragraph (a) of § 351.305 also setsforth the requirements that are to beincluded in the APO and to which allauthorized applicants must adhere. TheDepartment proposed to eliminate fromthe APO detailed internal proceduresthat firms were required to follow toprotect APO information fromunauthorized disclosure. In paragraph(a)(1), the Department proposed topermit each applicant to establish itsown internal procedures. Allcommenters agreed with this proposal,and we have adopted it in these finalregulations.

Notification of Change of Facts

Paragraph (a)(2) of § 351.305 requiresan authorized applicant to notify theSecretary of any changes in the factsasserted by the authorized applicant inits APO application. Paragraph (a)(2)does not require certification of thesefacts. Paragraph 6 of the proposed APO,however, would have required theauthorized applicant to provide, at theconclusion of a segment of theproceeding, upon the departure of anauthorized applicant from a firm, orwhen an individual no longer will haveaccess to APO information, acertification that attests to theindividual’s compliance with the termsunder which such access is granted.Two commenters questioned thenecessity for such individualcertifications. They argued that thethrust of the Department’s new rules isto permit firms to develop their owninternal procedures to protect businessproprietary information, rather than forthe Department to ‘‘micro-manage’’ APO

issues. Thus, they asserted, firms willhave internal procedures to ensure thatpersons leaving a firm, for example,destroy or return any documentscontaining business proprietaryinformation. They point out that underthe procedure proposed by theDepartment, applicants already sign anAPO application individually, and theadditional certification is thereforesuperfluous. Moreover, commentersargued, the Court of InternationalTrade’s (CIT) judicial protective orderspermit a single certification, and there isno reason to follow two differentprocedures for appellate andadministrative proceedings.

The Department agrees. Paragraph(a)(2) continues to require a party tonotify the Department of any changes inthe facts asserted by an authorizedapplicant in its application, but we havedeleted the requirement for certificationat the end of the proceeding segment inparagraph 6 of the APO. Authorizedapplicants are required to notify theDepartment of any possible violation ofthe APO; the additional certification isredundant. The Department presumesall authorized applicants are complyingwith the terms of the APO until wedetermine through an investigationunder Part 354 that a violation of anAPO has occurred. Thus we haveretained the requirement that partiesnotify the Department and other partiesof changes, but have removed fromparagraph 6 of the APO the requirementthat every individual certify itscompliance with the regulations at theclose of the person’s participation underthe APO.

Notification of Destruction of BusinessProprietary Information

Paragraph (a)(4), now renumbered asparagraph (a)(3), of § 351.305 requiresthe destruction of business proprietaryinformation when a party is no longerentitled to it, normally at the close of asegment of a proceeding. Paragraph 7 ofthe APO also required an individualcertification from each authorizedapplicant that it complied with theterms of the APO. For the reasons statedabove, we agree this certification isunnecessary. We presume that anauthorized applicant will comply withthe terms of the APO requiringdestruction of business proprietaryinformation at a designated time.

We will continue to require, however,notification to the Department ofdestruction of business proprietaryinformation. Parties will be able to keepcertain business proprietary informationfor more than one segment of aproceeding, and discipline in trackingand destroying information is more


important than ever. Therefore theDepartment will continue to holdparties accountable for timelydestruction of material when no longerauthorized by the APO to have it.

One commenter suggested that thefailure to return or destroy APO materialis a procedural issue and should not beviewed as constituting a violation of theAPO if not satisfied. We disagree. Untilbusiness proprietary information isdestroyed, there is a risk of disclosure.The destruction of business proprietaryinformation material is important toprevent unauthorized disclosure. It isone of the few specific requirements inthe regulations. While the failure toreturn or destroy may not result inactual disclosure of business proprietaryinformation, and in certaincircumstances may only result in awarning, it is clearly a violation of theregulations and the APO.

The Department proposed that anauthorized applicant be required todestroy business proprietaryinformation that the applicant is notauthorized to retain within a thirty-daytime period after the expiration of thetime for filing for a judicial or binationalpanel review of the last segment forwhich the authorized applicant mayretain the information. Thirty daysshould cover most contingencies, butthe Department will be willing to grantextensions for good cause shown.Commenters supported this proposaland we will incorporate it into eachAPO, which will set specific deadlineson a case-by-case basis.

Electronic DataParagraph 3 of the APO places one

restriction on the use of businessproprietary information contained inelectronic form; the information can notbe accessible by a modem. We arerestricting access to electronicinformation by modem, but notrequiring any specific technicalrestrictions, instead leaving the methodto be used to the individual authorizedapplicant. This proposal was supportedby commenters. Commenters suggesteda revision of the language of theparagraph to clarify this requirement,which we have incorporated intoparagraph 3 of the APO.

Independent ContractorsThe definition of ‘‘support staff’’

contained in the APO permits the use ofindependent contractors to performphotocopying and other productiontasks involving APO information,provided that the independentcontractors perform their work on thepremises of the authorized applicant(e.g., at the firm), and the independent

contractors work under the supervisionof an authorized applicant.

Commenters requested a clarificationthat the Department also will allowparties to use employees orsubcontracted individuals (e.g., courierservices) to pick up or deliver APOinformation released by the Department,and to deliver APO information to otherparties. One commenter also requesteda clarification that ‘‘independentcontractors’’ includes part-timeemployees. We agree that support staffand independent contractors can beused for all delivery functions and that‘‘independent contractors’’ includespart-time employees.

In order to guard against unauthorizeddisclosure, however, the Departmentwill continue its current practice ofreleasing APO information only if theemployee or independent contractorpresents a picture ID and a letter ofidentification from the firm of theauthorized applicant that authorizes theDepartment to release the APOinformation to that particularindividual.

Remand ProceedingsThe Department proposed that the

APO permit access to new businessproprietary information submitted inthe course of a remand during litigationinvolving the segment of the proceedingin which the initial APO was issued.Parties no longer will have to applyseparately for access under an APOduring a remand proceeding.Commenters supported this proposal.The APO issued in each proceeding willreflect this practice.

APO ApplicationsParagraph (b) of § 351.305 deals with

the APO application process itself,including permitting parties to use twoindependent representatives.

Multiple Authorized ApplicantsUnder current practice, the

Department generally allows only onerepresentative of a party to have accessto business proprietary informationunder an APO. In response to requestsfrom parties to proceedings, theDepartment proposed that twoindependent representatives of a partybe allowed APO access, with onerepresentative being designated as thelead representative. We also proposedgranting APOs separately to non-legalrepresentatives, who otherwise qualifyto receive an APO, only if they had asignificant practice before theDepartment. The purpose of thisproposal was to ensure that effectivesanctions could be imposed to deterAPO violations. The Department will

consider requests that more than twoindependent representatives bedesignated as authorized applicants ona case-by-case basis.

Commenters agreed with thisproposal, and requested that theDepartment clarify that the leadauthorized applicant will not be liablefor APO infractions committed by aseparately authorized applicant. Weagree. Authorized applicants areresponsible for violations committed byany person in the same firm, but not forviolations committed by an individualat another entity that applied for APOaccess separately. The leadrepresentative would not be responsiblefor APO violations committed by theseparately authorized applicant.

Application for an APO

Paragraph (b)(2) of § 351.305establishes a ‘‘short form’’ applicationthat applicants can generate from theirown word-processing equipment. Anapplicant must acknowledge that anydiscrepancies between the applicationand the Department’s APO placed onthe record will be interpreted in amanner consistent with theDepartment’s APO. Parties agreed withthis proposal and we have adopted it inparagraph (b)(2).

APO Application Coverage

Paragraph (b)(2) of § 351.305 alsoprovides that an applicant must apply toreceive all business proprietaryinformation on the record of theparticular segment of the proceeding inquestion. A party no longer may applyto receive only selected parties’ businessproprietary information. The purpose ofthis requirement is to eliminate the needfor parties to prepare separate APOversions of submissions for each of thedifferent parties involved in aproceeding and to reduce the number ofAPO violations that occur through theinadvertent service of a documentcontaining business proprietaryinformation to parties not authorized toreceive it. In order to avoid forcingparties to receive submissions in whichthey have no interest, however, a partymay waive service of businessproprietary information it does not wishto have served on it by another party.Thus, for example, Respondent A maywaive its right to be served with a copyof the business proprietary version ofRespondent B’s questionnaire response.Nonetheless, if Respondent A receivesany of respondent B’s proprietaryinformation from any party by mistake,no APO violation will have occurred.Commenters generally supported theproposal, because it eases the burden on


submitters and reduces the likelihood ofinadvertent APO violations.

One commenter strongly objected tothe proposal as inconsistent withsection 777 of the Act and burdensomeon respondents. The commenterasserted that substitution of a waiverprocedure for party-specificsubmissions is inadequate becauserespondents are nonetheless required toaccept submissions by petitioners thatcontain the business proprietaryinformation of several parties, includingbusiness proprietary information thatthe respondents may have had noreason to request. It asserted that byrequiring respondents’ representativesto accept from petitioners’representatives documents containingmulti-party business proprietaryinformation, the Department isunnecessarily shifting the burden andresponsibility of complying with APOprocedures from petitioners torespondents. Furthermore, wherecounsel is served a business proprietarydocument and then redacts only certainportions designated confidential by thefiling party before transmitting thedocument to his client, there is no checkon whether a proper redaction has beenmade. Neither the Department nor otherparties have access to, or evenknowledge of, the specially redactedversion, and this procedure willheighten the risk of inadvertentdisclosure of business proprietaryinformation. Instead, the commenterargues, if the public summariesprepared by parties meet Commerceguidelines, the information contained inany public version of a filed documentshould be sufficient to inform a partyalready knowledgeable of theproprietary data represented by thepublic summary.

The Department recognizes that theserules place a new burden on arepresentative to ensure that when itreceives a submission with businessproprietary information from multipleparties, it takes steps to ensure nobusiness proprietary information ofanother party is disclosed to its client.Each authorized applicant has pledgedto do this when he or she signs theapplication for access to businessproprietary information under an APO.The rules mitigate this additionalburden by requiring parties to clearlyidentify the person to whom each itemof business proprietary informationpertains. Although adequate publicsummaries are helpful, they are not asubstitute for a full discussion of aparty’s own business proprietaryinformation. Public summaries serve toassist a party’s participation where other

parties’ business proprietaryinformation is involved.

Nothing in the statute prohibits theseprocedures. Section 777 of the Actrequires the Department to ‘‘make allbusiness proprietary informationpresented to, or obtained by it, duringa proceeding * * * available tointerested parties who are parties to theproceeding under a protective order* * *.’’ On balance, we believe theprocedures adopted will spread theburden for protecting businessproprietary information and reduceinadvertent disclosure of businessproprietary information.

Deadline for Application for APOAccess

Paragraph (b)(3) of § 351.305 concernsthe deadline for applying for access tobusiness proprietary information underAPO. In deciding the question of APOapplication deadlines, the Departmentbalances the need to provide maximumaccess by parties to APO informationwith the need to minimize the burdenon the Department in processing APOapplications, as well as the burden onparties and the Department that have toserve late applicants with APOinformation placed on the record beforea late APO is granted. We proposed inparagraph (b)(3) to encourage parties tosubmit APO applications before the firstquestionnaire response is filed, but topermit parties to submit applications upto the date on which case briefs are due.

Two commenters requested that theDepartment have no deadline for APOapplications. They did not provide anyreason why a representative would needto have access to the entire record afterthe time case briefs are filed. Under§ 351.309(b), which was publishedseparately with the May 19 regulations,written argument will not be acceptedafter case or rebuttal briefs are filedunless requested by the Secretary. Aparty can always provide arepresentative with the party’s owndata, and represent the party before theDepartment during disclosure of thatparty’s calculations. Providing a newrepresentative with a record after theclose of comments would be undulyburdensome for the Department staffwhich has extremely tight deadlines forissuing the final determination. Arepresentative can obtain the entirerecord under judicial protective orderduring litigation if necessary. Therefore,we have incorporated the proposeddeadline, the day case briefs are due,into the regulations.

We also have taken into account theburden imposed on parties by APOapplications that are filed after majorsubmissions have been made by other

parties to the proceeding. Under currentrules, parties have only two days inwhich to serve an authorized applicantthat obtained its APO late in theproceeding with APO information thatalready has been placed on the record.Under the deadline set forth inparagraph (b)(3), the burden on partiesmay increase. We therefore proposedthat parties have five days in which toserve late APO applicants. In addition,we required that late applicants berequired to pay the costs associated withthe additional production and service ofbusiness proprietary submissions thatwere served on other parties earlier inthe proceeding. Commenters supportedthese proposals and they areincorporated into § 351.301, which waspublished separately.

The Department reemphasizes that itwill not allow an APO application filedlater in the proceeding to serve as thebasis for extending any administrativedeadline, such as a briefing or hearingschedule.

Approval of the APO Application andthe APO Service List

Paragraph (c) of § 351.305 deals withthe approval of an APO application. TheDepartment proposed to approve anapplication within two days of itsreceipt in an investigation and withinfive days in other AD and CVDproceedings, unless there is a questionconcerning the eligibility of anapplicant to receive access under APO.In that case, the Secretary will decidewhether to approve the applicationwithin 30 days of receipt of theapplication. We amended the regulationto provide for a single five-day deadlineto provide parties a reasonable time tocomment on applications in allinstances.

Commenters generally supported theDepartment’s proposal because it willfacilitate the timely completion ofinvestigations and administrativereviews by providing expedited accessto business proprietary information toall parties to a proceeding. Theysuggested that the Department’sregulations also indicate that similarlyexpedited treatment will be provided toapplications for amendments to APOs.The Department considers anapplication for an amendment to besubject to the same procedures as theoriginal application.

Some commenters expressed concernthat approving APO applications soquickly may create problems. In manycases, the APO application will beserved by mail on other interestedparties, and commenters wereconcerned that the Department couldapprove the application before the


parties have an opportunity to commenton it. When the APO material is alreadyin the hands of an approved applicantwho has filed for access for additionalindividuals, commenters asserted it isimperative that parties be informed ofthe existence of the amendedapplication, and be given time to react,before APO material is released to anyadditional individuals. The problem isof special concern to commenters if theapplication seeks to add in-housecounsel to the APO.

Although the Department agrees thatthe concerns raised by thesecommenters have merit, we mustbalance these concerns with the need ofapplicants to receive APO materialexpeditiously. We note that theDepartment rarely receives objections toapplications to amend APOs. However,in recognition of the concerns raised, weintend to approve applications to amendthe Department’s APO service list toinclude an additional authorizedapplicant at the end of the five-dayperiod. If a representative wishes tohave its amendment approved beforethe five-day deadline, it should submitits application with a statement that allother parties to the proceeding haveconsented to the application.

Commenters proposed that if the APOapplicant needs immediate access,service on the other parties could bemade by hand delivery or overnightmail, by facsimile, or by E-mail.Alternatively, the applicant could filethe application as a ‘‘consent motion’’.If there is no need for immediate access,commenters proposed that parties bepermitted to serve by mail and thatDepartment approval be held for fivedays to ensure that the other partieshave had an opportunity to respond.Commenters also proposed that theregulations also should state thatobjections to applications must be filedwithin two days of receipt of theapplication and served by hand on theapplicant.

One commenter, on the other hand,was concerned that parties to a caseshould not be able to delay release ofproprietary documents merely by theobjection, on whatever grounds, to theeligibility of an applicant to obtaininformation. Rather, the commenterproposed that the Department enunciatecertain grounds that might serve as theproper basis for an objection, such asaffiliation with the party in question,prior violations of protective orders orother ethical rules, or a potentialconflict of interest that exists based onwork done either within the governmentor at another firm involving the same ora similar matter. Commenters did notwant parties to have the opportunity to

delay approval of applications by minorobjections, such as an objection to thenumber of applicants.

The Department recognizes that thecurrent regulations permit a party tohand-serve an APO application (or anapplication for an amendment to theAPO service list) on the Department,while serving the parties by mail. TheDepartment could approve anapplication before parties even receivednotice that the application had beenfiled. We are therefore revising§ 351.305(b)(2) to require parties toserve an APO application (includingapplications for amendments) on theDepartment and on the parties in thesame manner, whether by hand or bymail. We are also extending thedeadline in § 351.305(c) for approvingan APO application (including anapplication to amend the APO servicelist) to five days from two for allsegments of proceedings. Theseprocedures should provide expeditedapproval of APO access whilepreserving the rights of parties tocomment on APO applications.Although the Department may approvean APO application on or before thefive-day deadline, a party objecting toan APO application may elect not toserve its business proprietaryinformation on the applicant to which itis objecting until the Department hasaddressed the objection and has made adecision whether to grant the applicantaccess to the objecting party’sproprietary information.

There are few bases on which a partycan legitimately object to granting anAPO so long as the applicant meets theconditions established in the APOapplication and APO. An objectionbased on the number of applicantswould generally be consideredfrivolous; the Department does notinterfere with a party’s choice ofrepresentation or staffing. The only areawhere Import Administration has theauthority to deny an individual the rightto practice before it involves a finding,pursuant to our very detailed APOviolation regulations, that a party hasviolated a protective order and that theviolation warrants the extreme sanctionof a ban from practice before ImportAdministration. An allegation in thisarea would require a detailedinvestigation. The restriction on practicebefore the Department because of anAPO violation would be imposedthrough the APO violation proceeding,not through an objection to an APOapplication.

Import Administration does not haveauthority to address the post-employment restrictions contained in 18U.S.C. 207. The authority to interpret

post-employment restriction resideswith the Assistant General Counsel forAdministration at the Department ofCommerce. Nor does the Departmenthave the authority to advise on theapplication of state professional conductrules to a party’s practice before theDepartment. Any allegations ofviolations of the rules of a particular barassociation must be raised with thatorganization.

Alternative Methods of APO ApprovalIn the October Notice, several

commenters suggested alternativemethods of approving APOs, such as thecreation of a pre-approved roster ofmembers of a representative’s firm, orpermitting a lead signatory in a firm togrant access to the other professionalswithin the firm. The Department did notadopt either alternative because theremay be facts peculiar to a particular ADor CVD proceeding or a segment of aproceeding that render an otherwiseeligible applicant ineligible, and theroster approach would preclude a partyfrom raising legitimate objections to theapproval of an APO application.Likewise, the lead signatory approachwould preclude parties from exercisingtheir right to object, for good cause, tothe disclosure of APO information to aparticular individual.

Two commenters continued tosupport the roster system. One pointedout that such a procedure would stillallow Commerce to review theindividual eligibility of each applicantand would allow far greater flexibilityon the part of the participating firm.These commenters did not address thepoints raised by the Department inopposing the proposal, such as noticeand certainty. As noted above,commenters expressed concern thatthey have an advance opportunity tocomment on an APO application beforeaccess is granted. They were concernedthat the Department might approve anAPO application before parties had hada chance to review it because of theshort two-day deadline the Departmentproposed for approving an application.We are therefore not adopting eitheralternative method of approving APOapplications. The maximum five-daydeadline for approving an applicationshould enable parties to addrepresentatives without undue delay.

Department Notification of APO ServiceList

If an application is approved, theSecretary will include the name of theauthorized applicant on an APO servicelist that the Department will maintainfor each segment of a proceeding.Paragraph (c) of § 351.305 provides that


the Secretary will use the mostexpeditious means available to provideparties with the APO service list on theday the list is issued or amended.

Commenters generally supported theproposal. While they supported aflexible approach with respect topromulgating and updating the APOservice list, they also expressed concernwith the lack of specificity as to theform of notice to anticipate.Commenters were particularlyconcerned with the use of the Internetto the extent the Department iscontemplating reliance on electronicmail, based on the uncertainty of thetimely receipt of information(particularly where the parties are out ofthe office) or even whether theinformation would be received at all. Tothe extent the Department elects to relyon any Internet or e-mail notification,commenters urged the Department toalso send a copy of the notification bymail to the parties to ensure that actualnotification was received.

Other commenters stated that thepreferred method is by facsimile. Theystated that most businesses, includinglaw firms practicing before theDepartment, have procedures to ensurethat incoming facsimiles rapidly cometo the attention of the indicatedrecipient. Commenters noted that theseprocedures are not necessarily in placewith respect to the Internet andtransmission by mail involves at leasttwo days of delay.

At this time, the Department will faxevery change in the APO service listdirectly to each party on the service listfor each proceeding. In addition, untilthe Department is assured that partiesare routinely receiving notification ofthe APO service list by fax, theDepartment will mail hard copies of theservice to the lead applicant. This willprovide certainty and consistencynecessary to effectively monitor APOservice lists. APO service lists will beavailable to the public on ImportAdministration’s home page on theInternet as a public service. TheDepartment will adapt these proceduresto advances in technology adopted bythe trade bar in the future to ensure itprovides notice as efficiently aspossible.

Section 351.306 Use of BusinessProprietary Information.

Section 351.306 sets forth rulesconcerning the use of businessproprietary information.

Use of Business Proprietary Informationby 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 thedisclosure 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 theenforcement of U.S. rights under theWorld Trade Organization Agreementon Subsidies and CountervailingMeasures. Also, although the regulationitself is little changed, we note that theURAA amended section 777(b)(1)(A)(i)of the Act to clarify that the Departmentmay use business proprietaryinformation for the duration of an entireproceeding (from initiation totermination or revocation), as opposedto merely the particular segment of aproceeding for which information wassubmitted.

Use of Business Proprietary Informationby Parties

Section 777 of the Act permits theDepartment to use business proprietaryinformation for the duration of an entireproceeding, from initiation totermination or revocation. Under thecurrent regulations, the Departmentlimits the record of a segment of aproceeding to information submittedduring that particular segment of theproceeding. 19 CFR 353.34(a). TheDepartment limits the use of businessproprietary information byrepresentatives of parties to the segmentof the proceeding in which theinformation was submitted. 19 CFR353.34(b)(3)(ii). Although theDepartment may have access to businessproprietary information from anothersegment of the proceeding, theDepartment may not base a decision onbusiness proprietary information that isnot on the record of the particularsegment of the proceeding.

The URAA identifies three specificinstances in which the Departmentwould be expected to use informationfrom different segments of proceedingsor different proceedings: (1) Informationfrom prior segments may be used in asunset or changed circumstances reviewof the same proceeding (section777(b)(1) of the Act); (2) businessproprietary information from a sunset orchanged circumstances review resultingin revocation may be used in aninvestigation on the same merchandisefrom the same country initiated withintwo years of revocation (section777(b)(3) of the Act); and (3)information from a terminatedinvestigation may be used in a newinvestigation on the subjectmerchandise from the same and anothercountry within three months oftermination of the prior investigation(sections 704 and 734 of the Act).

Paragraph (b) of § 351.306 deals withthe use of business proprietaryinformation by parties from one segmentof a proceeding to another. In theFebruary notice, the Departmentproposed to permit parties to retainbusiness proprietary informationreleased under APO for two segments ofthe proceeding subsequent to that inwhich the information was placed onthe record. Paragraph (b) provided thatnormally an authorized applicant mayuse such information only in theparticular segment of the proceeding inwhich the information was obtained. Anauthorized applicant could, weproposed, place business proprietaryinformation received in one segment ofa proceeding on the record of either oftwo subsequent consecutive segments(generally administrative reviews undersection 751(a)) if the information isrelevant to an issue in the subsequentsegments.

We have modified this paragraph togive the Department greater flexibility indetermining how business proprietaryinformation may be used. Our intentionat this time is to allow an authorizedapplicant to retain business proprietaryinformation obtained in one segment ofa proceeding for two subsequentconsecutive administrative reviews andto use such business proprietaryinformation in those administrativereviews or other segments of theproceeding initiated during that time.This use of business proprietaryinformation will be authorized by theterms of the APOs.

Four commenters wanted to expandthe policy by having essentiallyunlimited access to proprietaryinformation for the entire duration ofthe proceeding and, in some cases, evenacross proceedings. These commenterssuggested that any changes should beapplied to current APOs, as well asfuture APOs. They argued that suchbroad ability to use business proprietaryinformation was consistent with thestatute and would best enable them toidentify inconsistencies in submissionsfrom one segment of a proceeding toanother.

Four commenters supported theproposed policy with certainrestrictions. These commenters urgedthe Department to prohibit wholesaleincorporation of business proprietaryinformation from another segment of theproceeding and, instead, require thatany business proprietary informationsubmitted from another segment of theproceeding be relevant to the segment inwhich it is submitted. Additionally,some of these commenters indicatedthat a shorter period of time (one


segment) would be sufficient to achievethe Department’s goals.

Four commenters strongly opposedany change to current policy. Theyargued that the limited changes to thestatute cannot justify the significantchanges proposed in the regulations.This group argued that statutoryrequirements and prior CIT decisionsregarding the record for revieweffectively prohibit the changesproposed by the Department. This groupalso cited concerns that the broaderability to retain and use businessproprietary information would increasethe likelihood of disclosure of thatinformation and thereby discourageparties from participating inproceedings before the Department. Thegroup contended that these changes willalso impose additional burdens onparties (to monitor the use of theirbusiness proprietary information insubsequent segments and to whom theirbusiness proprietary information isreleased, and to maintain the ability tojustify all differences in their reportedinformation from one segment to thenext). The group contended that thispractice would also increase burdens onthe Department to document and verifythe bases for any differences acrosssegments of proceedings.

We have not broadened the proposalto permit unlimited use of businessproprietary information across allsegments of a proceeding, or across allproceedings other than those specifiedin the statute. There is no legal supportfor the request to utilize businessproprietary information acrossproceedings.

Nor do we agree with commenterstotally opposing use of businessproprietary information in more thanone segment. The statute and CITprecedent do not prohibit the proposedchanges. The proposed changes wouldprovide for inclusion of the informationfrom another segment on the record ofthe segment in question. The proposedchanges were not based on statutorychanges made by the URAA, but, rather,rely on authority which the Departmenthas always possessed. We agree thatthese changes will create someadditional burdens on all parties tomonitor subsequent segments ofproceedings to avoid release of theirbusiness proprietary information to aparty to whom they object. These arerare occurrences, and we haveattempted to minimize this burden and,thereby, minimize the likelihood thatthese changes will cause respondents torefuse to participate in the Department’sproceedings due to concerns about theirbusiness proprietary information. Anyadditional burden on the Department

will be minimized by the Department’sability to reject submissions ofirrelevant business proprietaryinformation from other segments.

We agree that wholesale incorporationof business proprietary informationfrom prior segments should be rejectedunless absolutely necessary. We alsoagree that the Department should rejectbusiness proprietary information fromanother segment which is not relevantto the ongoing segment. Such decisions,however, may be difficult to make andmay present additional bases for appealto the CIT. Therefore, the Departmentdoes not intend to make a decision onrelevancy every time a party submitsinformation from a prior segment intothe current segment, but it reserves theright to do so in appropriatecircumstances. At the same time, inorder to avoid imposing undue burdenson the Department, we intend toconsider such information only to theextent that is relevant to issues raised byinterested parties or that the Departmentotherwise deems appropriate.

The Department expects that therewill be a multitude of practicalproblems that will have to be workedout over time and with experienceunder these new procedures. Initiallywe will permit parties to retain businessproprietary information for twoadditional segments (generallyadministrative reviews) after thesegment in which the businessproprietary information was submitted.This is a reasonable compromisebetween the long-held desires ofpetitioners to be able to addressperceived inconsistencies betweensegments, and respondents’ concernsthat their business proprietaryinformation not be distributed amongrepresentatives and across segments forindeterminate periods. Once businessproprietary information is placed on therecord of a subsequent segment of theproceeding, it remains a permanentaddition to the later record, unless theDepartment rejects the information.

The Department believes that thisnew practice normally will be used tomove business proprietary informationfrom an investigation or administrativereview to two subsequent consecutiveadministrative reviews. The Departmentalso intends to authorize the use ofbusiness proprietary informationsubmitted in an investigation oradministrative review in othersegments, such as scope proceedings orchanged circumstances reviews,initiated during those twoadministrative reviews. If theDepartment determines, as it gainsexperience, that it is appropriate to

modify this practice, it will do so bychanging the terms of the APOs.

Identifying Parties Submitting BusinessProprietary Information

Paragraph (c) of § 351.306 addressesidentification of submitters of businessproprietary information in submissionscontaining business proprietaryinformation from multiple persons. TheDepartment is requiring that APOapplicants be required to request accessto all business proprietary informationsubmitted in a particular segment of aproceeding. In addition, we proposedthat in the case of submissions, such asbriefs, that include business proprietaryinformation of different parties, thesubmission must identify each piece ofbusiness proprietary informationincluded and the party to which theinformation pertains. (For example,Information Item #1 came fromRespondent A, Information Item #2came from Respondent B, etc.) Thepurpose of this proposal is to enableparties to submit a single businessproprietary version of a submission thatmay be served on all parties representedby authorized applicants, instead offorcing parties to submit and servedifferent APO versions for each of theparties involved in a proceeding. In thecase of a submission served on a partynot represented by an authorizedapplicant (a relatively rare event), thesubmitter still would have to prepareand serve a separate submissioncontaining only that party’s businessproprietary information.

Three commenters supported thisproposal. They agree it will reduce thepossibility of APO violations whendocuments contain business proprietaryinformation provided by more than oneparty. Commenters further suggestedthat, when all business proprietaryinformation in a submission is obtainedfrom a single party, the Department’sregulations permit the submitting partyto identify the original submitter of thebusiness proprietary information onlyonce, on the title page of thesubmission. We agree and haveincorporated this into § 351.306(c).

Commenters also suggested that theDepartment should clarify the proposedrule by stating that only businessproprietary information of another partyneeds to be specifically identified bysource. The commenter proposed thatany business proprietary informationthat is bracketed in the submissionshould be assumed to be businessproprietary information belonging to theparty submitting the document unlessotherwise identified as businessproprietary information of anotherparty. The commenter pointed out that


without this clarification, submissionsto the Department would becomecluttered with notations as to theoriginal submitter of the businessproprietary information and it maybecome very difficult to read thesubmission. We agree, and haveincorporated this suggestion into§ 351.306(c) of the regulations.

One commenter urged the Departmentto clarify what is meant by the term‘‘identify contiguously with each item’’so that parties can adapt theirprocedures accordingly. The commenternoted that particularly troublesomewould be documents containing multi-party information on a single line. Thecommenter requested that theDepartment should clarify whether theidentifying markings are also requiredin public versions.

The term ‘‘contiguous’’ was used torequire identification closely enoughwith the item of business proprietaryinformation so a party could clearly andquickly identify the original submitterof the business proprietary information.We do not want to be so specific thatparties lose flexibility to respond todifferent situations. Documents canvary, and readability must not besacrificed. In some situations, a notationnext to the item of business proprietarywill best serve everyone’s interests. In amore complicated document, footnotesmight be better. Since the public versionof a submission should be identical withthe business proprietary version exceptfor the deletion of the proprietaryinformation, the public submission willcontain the identity of the originalsubmitter of the proprietaryinformation.

Some commenters objected to theDepartment’s proposed exception(§ 351.306(c)(2)) to the single-versionbusiness proprietary informationdocument rule where a party does nothave a representative. They argued thatit undermined the benefits gained fromnot having to file respondent-specificsubmissions and that adequate publicsummaries would be adequate.

The Department believes that thisrequirement is necessary. A party needsdisclosure of another party’s argumentsagainst it to adequately defend itself. Tofail to do so would not providesufficient transparency to theproceeding.

Concern was expressed regarding thepotential mismarking of businessproprietary information in a document,and the reliance thereafter on theinformation mismarked by anotherparty. The commenter urged that thelatter party’s reliance on the mismarkedinformation should not constitute abreach of the protective order. Another

commenter took the opposite view. Itsuggested that if a party mistakenlyindicates the wrong original submitterof business proprietary information in asubmission, the party should only berequired to correct the mistake, and themistake should not constitute an APOviolation in and of itself. Thecommenter further argued, however,that if, as a result of a mistake, a partywere to disclose business proprietaryinformation to another party notauthorized to receive it, that disclosurewould constitute an APO violationunder the existing APO rules.

Only the party creating thesubmission from multiple parties’business proprietary information knowswith certainty the person that originallysubmitted the business proprietaryinformation. Therefore the submittermust be responsible for the accuracy ofthe labeling. This is the purpose of theproposal. Unless an authorizedapplicant knows that an identification isincorrect, he or she should be entitledto rely on the identification. Otherwisethe requirement serves no purpose. Anunauthorized disclosure resulting frominaccurate labeling that leads to an APOviolation will be attributed to the personlabeling the original submitter of thebusiness proprietary information.

Another commenter opposed theproposal altogether, arguing that theproposal is an attempt to shift costs andresponsibility from petitioner torespondent, causing respondent to losetime reviewing petitioner’s case brief inthe five days that they have to preparerebuttal briefs under proposed§ 351.309(d). The commenter arguedthat while the number of inadvertentAPO violations will decrease forpetitioner’s counsel, they will increasefor respondent’s counsel, becauserespondent’s counsel must now makesure petitioner’s documents do notinclude APO material that should not bereleased.

These proposed procedures formalizewhat has been the Department’s practicesince 1992. Moreover, we believe thatthese proposals balance the differentinterests of petitioners and respondents.Although there are risks of inadvertentAPO violations associated with anyoption, we believe that the fact that allauthorized applicants will have accessto the business proprietary informationof all parties (whether or not service iswaived) should reduce significantly thenumber of inadvertent disclosures. Inthis regard, the inadvertent service onan authorized applicant of a submissioncontaining information of a party forwhich the applicant has waived servicewould not constitute an APO violation.

Administrative Protective OrderSanction Procedures

Five parties commented on theproposed amendments to the APOsanction procedures. All commenterssupported the proposed changes. Uponfurther reflection, the Department isamending its regulations consistent withthe proposed regulations. As explainedbelow, the Department also is makingclerical revisions to use terms‘‘administrative protective order’’ and‘‘business proprietary information’’consistently throughout this part, and toconform the regulations to changesmade in the organization of theDepartment on July 1, 1996.

Section 354.2 Definitions.

The definition section is revised to beconsistent with the definitionscontained in the Department’s proposedantidumping and countervailingprocedural regulations at 19 CFR351.102. The definitions of the terms‘‘administrative protective order’’,‘‘Secretary’’, ‘‘segment of theproceeding’’, and ‘‘Senior APOSpecialist’’ are added to Part 354 in§ 354.2.

The definition of ‘‘director’’ is revisedto reflect the reorganization of theDepartment that became effective July 1,1996. Under the reorganization, theAPO function is consolidated under theDirector for Policy and Analysis, and ismanaged by a Senior APO Specialist.The Senior APO Specialist isresponsible for directing theDepartment’s handling of businessproprietary information. The SeniorAPO Specialist assists withinvestigations of alleged APO violations,which streamlines the APO violationinvestigation process. A definition of‘‘Senior APO Specialist’’ is added in§ 354.2, and the definition of ‘‘director’’is revised to include the Senior APOSpecialist. The definition of director isalso amended to conform the regulationto the changes in office directorpositions made in the July 1, 1996reorganization.

Section 354.5 Report of violation andinvestigation.

Paragraph (a)(1) is amended to requirethat all allegations of APO violations bereported to either the Senior APOSpecialist or the Office of Chief Counselfor the Department. Under the currentpractice, alleged violations are reportedto the APO specialist in the Office ofInvestigations or Office of Compliance,depending on where the allegedviolation occurred. The amendmentconforms the regulation to the July 1,1996 reorganization of the Department.


Paragraphs (d) (7) and (8) arecombined and revised to reflect changesin the Act and Department practiceregarding the use of businessproprietary information in segments ofproceedings other than the one in whichthe information was originallysubmitted. These changes are discussedabove. The Department’s proceduralregulations will now allow use ofbusiness proprietary information inmore than one segment of a proceedingor another proceeding in limitedsituations. The segments of proceedingsin which business proprietaryinformation may be used will becontained in the administrativeprotective order. Paragraphs (d) (7) and(8) are combined and revised to reflectthese changes.

Classification

E.O. 12866

This rule has been determined to benot significant for purposes of ExecutiveOrder 12866.

Paperwork Reduction Act

This rule does not contain a collectionof information for purposes of thePaperwork Reduction Act of 1980, asamended (44 U.S.C. 3501 et seq.).

Regulatory Flexibility Act

The Assistant General Counsel forLegislation and Regulation of theDepartment of Commerce has certifiedto the Chief Counsel for Advocacy of theSmall Business Administration thatthese amendments would not have asignificant economic impact on asubstantial number of small businessentities because the rule that they wouldamend does not have such an impactand, furthermore, the amendmentswould tend to simplify the procedurespertaining to administration of APOsanctions. The Deputy Under Secretaryfor International Trade is responsible forregulations governing sanctions forviolations of APOs. The AssistantSecretary for Import Administration isresponsible for the regulationsgoverning issuance and use of APOs.

List of Subjects in 19 CFR Parts 351 and354

Business and industry, Foreign trade,Imports, Trade practices.

Dated: April 29, 1998.Timothy J. Hauser,Deputy Under Secretary for InternationalTrade.

Dated: April 29, 1998.Robert S. LaRussa,Assistant Secretary for ImportAdministration.

For the reasons stated, 19 CFR chapterIII is amended as follows:

PART 351—ANTIDUMPING ANDCOUNTERVAILING DUTIES

1. The authority citation for part 351continues to read as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 1202note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 etseq.; and 19 U.S.C. 3538.

2. Section 351.103 is revised asfollows:

§ 351.103 Central Records Unit andAdministrative Protective Order Unit.

(a) Import Administration’s CentralRecords Unit maintains a Public FileRoom in Room B–099 and a DocketsCenter in Room 1870, U.S. Departmentof Commerce, Pennsylvania Avenue and14th Street, NW., Washington, D.C.20230. The office hours of the PublicFile Room and Dockets Center arebetween 8:30 a.m. and 5:00 p.m. onbusiness days. Among other things, theCentral Records Unit is responsible formaintaining an official and publicrecord for each antidumping andcountervailing duty proceeding (see§ 351.104), the Subsidies Library (seesection 775(2) and section 777(a)(1) ofthe Act), and the service list for eachproceeding (see paragraph (c) of thissection).

(b) Filing of documents with theDepartment. While persons are free toprovide Department officials withcourtesy copies of documents, nodocument will be considered as havingbeen received by the Secretary unless itis submitted to the ImportAdministration Dockets Center in Room1870 and is stamped with the date andtime of receipt.

(c) Service list. The Central RecordsUnit will maintain and make availablea service list for each segment of aproceeding. Each interested party thatasks to be included on the service listfor a segment of a proceeding mustdesignate a person to receive service ofdocuments filed in that segment. Theservice list for an application for a scoperuling is described in § 351.225(n).

(d) Import Administration’sAdministrative 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 arebetween 8:30 a.m. and 5:00 p.m. onbusiness days. Among other things, theAPO Unit is responsible for issuingadministrative protective orders (APOs),maintaining the APO service list,releasing business proprietaryinformation under APO, and APOviolation investigations. The APO Unitalso is the contact point for questionsand concerns regarding claims forbusiness proprietary treatment ofinformation and proper public versionsof submissions under § 351.105 and§ 351.304.

3. Sections 351.304, 351.305 and351.306 are added to subpart C to readas follows:

§ 351.304 Establishing businessproprietary treatment of information.

(a) Claim for business proprietarytreatment. (1) Any person that submitsfactual information to the Secretary inconnection with a proceeding may:

(i) Request that the Secretary treat anypart of the submission as businessproprietary information that is subject todisclosure only under an administrativeprotective order,

(ii) Claim that there is a clear andcompelling need to withhold certainbusiness proprietary information fromdisclosure under an administrativeprotective order, or

(iii) In an investigation, identifycustomer names that are exempt fromdisclosure under administrativeprotective order under section777(c)(1)(A) of the Act.

(2) The Secretary will require that allbusiness proprietary informationpresented to, or obtained or generatedby, the Secretary during a segment of aproceeding be disclosed to authorizedapplicants, except for

(i) Customer names submitted in aninvestigation,

(ii) Information for which theSecretary finds that there is a clear andcompelling need to withhold fromdisclosure, and

(iii) Privileged or classifiedinformation.

(b) Identification of businessproprietary information. (1) In general.A person submitting information mustidentify the information for which itclaims business proprietary treatmentby enclosing the information withinsingle brackets. The submitting personmust provide with the information anexplanation of why each item ofbracketed information is entitled tobusiness proprietary treatment. Aperson submitting a request for businessproprietary treatment also must includean agreement to permit disclosure underan administrative protective order,


unless the submitting party claims thatthere is a clear and compelling need towithhold the information fromdisclosure under an administrativeprotective order.

(2) Information claimed to be exemptfrom disclosure under administrativeprotective order. (i) If the submittingperson claims that there is a clear andcompelling need to withhold certaininformation from disclosure under anadministrative protective order (seeparagraph (a)(1)(ii) of this section), thesubmitting person must identify theinformation by enclosing theinformation within double brackets, andmust include a full explanation of thereasons for the claim.

(ii) In an investigation, the submittingperson may enclose businessproprietary customer names withindouble brackets (see paragraph (a)(1)(iii)of this section).

(iii) The submitting person mayexclude the information in doublebrackets from the business proprietaryinformation version of the submissionserved on authorized applicants. See§ 351.303 for filing and servicerequirements.

(c) Public version. (1) A person filinga submission that contains informationfor which business proprietarytreatment is claimed must file a publicversion of the submission. The publicversion must be filed on the firstbusiness day after the filing deadline forthe business proprietary version of thesubmission (see § 351.303(b)). Thepublic version must contain a summaryof the bracketed information insufficient detail to permit a reasonableunderstanding of the substance of theinformation. If the submitting personclaims that summarization is notpossible, the claim must beaccompanied by a full explanation ofthe reasons supporting that claim.Generally, numerical data will beconsidered adequately summarized ifgrouped or presented in terms of indicesor figures within 10 percent of theactual figure. If an individual portion ofthe numerical data is voluminous, atleast one percent representative of thatportion must be summarized. Asubmitter should not create a publicsummary of business proprietaryinformation of another person.

(2) If a submitting party discovers thatit has failed to bracket informationcorrectly, the submitter may file acomplete, corrected businessproprietary version of the submissionalong with the public version (see§ 351.303(b)). At the close of businesson the day on which the public versionof a submission is due under paragraph(c)(2) of this section, however, the

bracketing of business proprietaryinformation in the original businessproprietary version or, if a correctedversion is timely filed, the correctedbusiness proprietary version willbecome final. Once bracketing hasbecome final, the Secretary will notaccept any further corrections to thebracketing of information in asubmission, and the Secretary will treatnon-bracketed information as publicinformation.

(d) Nonconforming submissions. (1) Ingeneral. The Secretary will return asubmission that does not meet therequirements of section 777(b) of theAct and this section with a writtenexplanation. The submitting person maytake any of the following actions withintwo business days after receiving theSecretary’s explanation:

(i) Correct the problems and resubmitthe information;

(ii) If the Secretary denied a requestfor business proprietary treatment, agreeto have the information in questiontreated as public information;

(iii) If the Secretary granted businessproprietary treatment but denied a claimthat there was a clear and compellingneed to withhold information under anadministrative protective order, agree tothe disclosure of the information inquestion under an administrativeprotective order; or

(iv) Submit other material concerningthe subject matter of the returnedinformation. If the submitting persondoes not take any of these actions, theSecretary will not consider the returnedsubmission.

(2) Timing. The Secretary normallywill determine the status of informationwithin 30 days after the day on whichthe information was submitted. If thebusiness proprietary status ofinformation is in dispute, the Secretarywill treat the relevant portion of thesubmission as business proprietaryinformation until the Secretary decidesthe matter.

§ 351.305 Access to business proprietaryinformation.

(a) The administrative protectiveorder. The Secretary will place anadministrative protective order on therecord within two days after the day onwhich a petition is filed or aninvestigation is self-initiated, or fivedays after initiating any other segmentof a proceeding. The administrativeprotective order will require theauthorized applicant to:

(1) Establish and follow procedures toensure that no employee of theauthorized applicant’s firm releasesbusiness proprietary information to anyperson other than the submitting party,

an authorized applicant, or anappropriate Department officialidentified in section 777(b) of the Act;

(2) Notify the Secretary of anychanges in the facts asserted by theauthorized applicant in itsadministrative protective orderapplication;

(3) Destroy business proprietaryinformation by the time required underthe terms of the administrativeprotective order;

(4) Immediately report to theSecretary any apparent violation of theadministrative protective order; and

(5) Acknowledge that anyunauthorized disclosure may subject theauthorized applicant, the firm of whichthe authorized applicant is a partner,associate, or employee, and any partner,associate, or employee of the authorizedapplicant’s firm to sanctions listed inpart 354 of this chapter (19 CFR part354).

(b) Application for access underadministrative protective order. (1)Generally, no more than twoindependent representatives of a partyto the proceeding may have access tobusiness proprietary information underan administrative protective order. Aparty must designate a lead firm if theparty has more than one independentauthorized applicant firm.

(2) A representative of a party to theproceeding may apply for access tobusiness proprietary information underthe administrative protective order bysubmitting Form ITA–367 to theSecretary. Form ITA–367 must identifythe applicant and the segment of theproceeding involved, state the basis foreligibility of the applicant for access tobusiness proprietary information, andstate the agreement of the applicant tobe bound by the administrativeprotective order. Form ITA–367 may beprepared on the applicant’s own word-processing system, and must beaccompanied by a certification that theapplication is consistent with FormITA–367 and an acknowledgment thatany discrepancies will be interpreted ina manner consistent with Form ITA–367. An applicant must apply to receiveall business proprietary information onthe record of the segment of aproceeding in question, but may waiveservice of business proprietaryinformation it does not wish to receivefrom other parties to the proceeding. Anapplicant must serve an APOapplication on the other parties in thesame manner and at the same time as itserves the application on theDepartment.

(3) To minimize the disruption causedby late applications, an applicationshould be filed before the first


questionnaire response has beensubmitted. Where justified, however,applications may be filed up to the dateon which the case briefs are due, butany applicant filing after the firstquestionnaire response is submitted willbe liable for costs associated with theadditional production and service ofbusiness proprietary informationalready on the record. Parties have fivedays to serve their business proprietaryinformation already on the record toapplicants authorized to receive suchinformation after such information hasbeen placed on the record.

(c) Approval of access underadministrative protective order;administrative protective order servicelist. The Secretary will grant access to aqualified applicant by including thename of the applicant on anadministrative protective order servicelist. Access normally will be grantedwithin five days of receipt of theapplication unless there is a questionregarding the eligibility of the applicantto receive access. In that case, theSecretary will decide whether to grantthe applicant access within 30 days ofreceipt of the application. The Secretarywill provide by the most expeditiousmeans available the administrativeprotective order service list to parties tothe proceeding on the day the servicelist is issued or amended.

§ 351.306 Use of business proprietaryinformation.

(a) By the Secretary. The Secretarymay disclose business proprietaryinformation submitted to the Secretaryonly to:

(1) An authorized applicant;(2) An employee of the Department of

Commerce or the International TradeCommission directly involved in theproceeding in which the information issubmitted;

(3) An employee of the CustomsService directly involved in conductinga fraud investigation relating to anantidumping or countervailing dutyproceeding;

(4) The U.S. Trade Representative asprovided by 19 U.S.C. 3571(i);

(5) Any person to whom thesubmitting person specificallyauthorizes disclosure in writing; and

(6) A charged party or counsel for thecharged party under 19 CFR part 354.

(b) By an authorized applicant. Anauthorized applicant may retainbusiness proprietary information for thetime authorized by the terms of theadministrative protective order. Anauthorized applicant may use businessproprietary information for purposes ofthe segment of a proceeding in whichthe information was submitted. If

business proprietary information thatwas submitted in a segment of theproceeding is relevant to an issue in adifferent segment of the proceeding, anauthorized applicant may place suchinformation on the record of thesubsequent segment as authorized bythe APO.

(c) Identifying parties submittingbusiness proprietary information. (1) Ifa party submits a document containingbusiness proprietary information ofanother person, the submitting partymust identify, contiguously with eachitem of business proprietaryinformation, the person that originallysubmitted the item (e.g., Petitioner,Respondent A, Respondent B). Businessproprietary information not identifiedwill be treated as information of theperson making the submission. If thesubmission contains businessproprietary information of only oneperson, it shall so state on the first pageand identify the person that originallysubmitted the business proprietaryinformation on the first page.

(2) If a party to a proceeding is notrepresented by an authorized applicant,a party submitting a documentcontaining the unrepresented party’sbusiness proprietary information mustserve the unrepresented party with aversion of the document that containsonly the unrepresented party’s businessproprietary information. The documentmust not contain the businessproprietary information of other parties.

(d) Disclosure to parties notauthorized to receive businessproprietary information. No person,including an authorized applicant, maydisclose the business proprietaryinformation of another person to anyother person except another authorizedapplicant or a Department officialdescribed in paragraph (a)(2) of thissection. Any person that is not anauthorized applicant and that is servedwith business proprietary informationmust return it to the senderimmediately, to the extent possiblewithout reading it, and must notify theDepartment. An allegation of anunauthorized disclosure will subject theperson that made the allegedunauthorized disclosure to aninvestigation and possible sanctionsunder 19 CFR part 354.

PART 354 [AMENDED]

4–5. The authority citation for part354 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 proprietaryinformation’’, and all references to‘‘appropriate Director’’ are revised toread ‘‘Director’’.

§ 354. 1 [Amended]7. Section 354.1 is amended by

removing the citations ‘‘19 CFR 353.30and 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 protectiveorder described in section 777(c)(1) ofthe Tariff Act of 1930, as amended; APOSanctions Board means theAdministrative Protective OrderSanctions Board.

Business proprietary informationmeans information the disclosure ofwhich the Secretary has decided islimited under 19 CFR 351.105, orsuccessor regulations;

Charged party means a person who ischarged by the Deputy Under Secretarywith violating a protective order;

Chief Counsel means the ChiefCounsel for Import Administration or adesignee;

Date of service means the day adocument is deposited in the mail ordelivered in person;

Days means calendar days, except thata deadline which falls on a weekend orholiday shall be extended to the nextworking day;

Department means the United StatesDepartment of Commerce;

Deputy Under Secretary means theDeputy Under Secretary forInternational Trade or a designee;

Director means the Senior APOSpecialist or an office director under aDeputy Assistant Secretary,International Trade Administration, or adesignee;

Lesser included sanction means asanction of the same type but of morelimited scope than the proposedsanction; thus a one-year bar onrepresentations before the InternationalTrade Administration is a lesserincluded sanction of a proposed seven-year bar;

Parties means the Department and thecharged party or affected party in anaction under this part;

Presiding official means the personauthorized to conduct hearings inadministrative proceedings or to rule onany motion or make any determinationunder this part, who may be anAdministrative Law Judge, a HearingCommissioner, or such other personwho is not under the supervision or


control of the Assistant Secretary forImport Administration, the DeputyUnder Secretary for International Trade,the Chief Counsel for ImportAdministration, or a member of the APOSanctions Board;

Proprietary information meansinformation the disclosure of which theSecretary has decided is limited under19 CFR part 351 including business ortrade secrets; production costs;distribution costs; terms of sale; pricesof individual sales, likely sales, oroffers; names of customers, distributors,or suppliers; exact amounts of the grossnet subsidies received and used by aperson; names of particular personsfrom whom proprietary information wasobtained; and any other businessinformation the release of which to thepublic would cause substantial harm tothe competitive position of thesubmitter;

Secretary means the Secretary ofCommerce or a designee;

Segment of the proceeding means aportion of an antidumping orcountervailing duty proceeding that isreviewable under section 516A of theTariff Act of 1930, as amended.

Senior APO Specialist means theDepartment employee under theDirector for Policy and Analysis wholeads the APO Unit and is responsiblefor directing Import Administration’shandling of business proprietaryinformation;

Under Secretary means the UnderSecretary for International Trade or adesignee.

9. Section 354.3 is amended byrevising 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 therecord any information or argumentsubmitted by, or on behalf of, theviolating party or the party representedby the violating party; terminating anyproceeding then in progress; or revokingany order then in effect;

(4) Requiring the person to returnmaterial previously provided by theSecretary and all other materialscontaining the business proprietaryinformation, such as briefs, notes, orcharts based on any such informationreceived under an administrativeprotective order; and

(5) Issuing a private letter ofreprimand.* * * * *

10. Section 354.5 is amended byrevising paragraphs (a), (b), (c) and(d)(1), (d)(2), and (d)(7), and by

removing paragraph (d)(8), andredesignating paragraph (d)(9) as (d)(8),as follows:

§ 354.5 Report of violation andinvestigation.

(a) An employee of the Departmentwho has information indicating that theterms of an administrative protectiveorder have been violated will providethe information to the Senior APOSpecialist or the Chief Counsel.

(b) Upon receiving information whichindicates that a person may haveviolated the terms of an administrativeprotective order from an employee ofthe Department or any other person, thedirector will conduct an investigationconcerning whether there was aviolation of an administrative protectiveorder, and who was responsible for theviolation, if any. No director shallinvestigate an alleged violation thatarose out of a proceeding for which thedirector was responsible. For thepurposes of this part, the director willbe supervised by the Deputy UnderSecretary for International Trade withguidance from the Chief Counsel. Thedirector will conduct an investigationonly if the information is receivedwithin 30 days after the allegedviolation occurred or, as determined bythe director, could have been discoveredthrough the exercise of reasonable andordinary care.

(c)(1) The director conducting theinvestigation will provide a report of theinvestigation to the Deputy UnderSecretary for International Trade, afterreview by the Chief Counsel, no laterthan 90 days after receiving informationconcerning a violation if:

(i) The person alleged to have violatedan administrative protective orderpersonally notified the Secretary andreported the particulars surrounding theincident; and

(ii) The alleged violation did notresult in any actual disclosure ofbusiness proprietary information. Uponthe director’s request, and ifextraordinary circumstances exist, theDeputy Under Secretary forInternational Trade may grant thedirector up to an additional 90 days toconduct the investigation and submitthe report.

(2) In all other cases, the director willprovide a report of the investigation tothe Deputy Under Secretary forInternational Trade, after review by theChief Counsel, no later than 180 daysafter receiving information concerning aviolation. Upon the director’s request,and if extraordinary circumstancesexist, the Deputy Under Secretary forInternational Trade may grant thedirector up to an additional 180 days to

conduct the investigation and submitthe report.

(d) * * *(1) Disclosure of business proprietary

information to any person other than thesubmitting party, an authorizedapplicant, or an appropriate Departmentofficial identified in section 777(b) ofthe Tariff Act of 1930, includingdisclosure to an employee of any otherUnited States Government agency or amember of Congress.

(2) Failure to follow the terms andconditions outlined in theadministrative protective order forsafeguarding business proprietaryinformation.* * * * *

(7) Use of business proprietaryinformation submitted in one segmentof a proceeding in another segment ofthe same proceeding or in anotherproceeding, except as authorized by theTariff Act of 1930 or by anadministrative protective order.* * * * *

11. Section 354.6 is revised asfollows:

§ 354.6 Initiation of proceedings.

(a) In general. After an investigationand report by the director under§ 354.5(c) and consultation with theChief Counsel, the Deputy UnderSecretary for International Trade willdetermine whether there is reasonablecause to believe that a person hasviolated an administrative protectiveorder. If the Deputy Under Secretary forInternational Trade determines thatthere is reasonable cause, the DeputyUnder Secretary for International Tradealso will determine whether sanctionsunder paragraph (b) or a warning underparagraph (c) is appropriate for theviolation.

(b) Sanctions. In determining underparagraph (a) of this section whethersanctions are appropriate, and, if so,what sanctions to impose, the DeputyUnder Secretary for International Tradewill consider the nature of the violation,the resulting harm, and other relevantcircumstances of the case. If the DeputyUnder Secretary for International Tradedetermines that sanctions areappropriate, the Deputy Under Secretaryfor International Trade will initiate aproceeding under this part by issuing acharging letter under § 354.7. TheDeputy Under Secretary forInternational Trade will determinewhether to initiate a proceeding no laterthan 60 days after receiving a report ofthe investigation.

(c) Warning. If the Deputy UnderSecretary for International Tradedetermines under paragraph (a) of this


section that a warning is appropriate,the Deputy Under Secretary will issue awarning letter to the person believed tohave violated an administrativeprotective order. Sanctions are notappropriate and a warning isappropriate if:

(1) The person took due care;(2) The Secretary has not previously

charged the person with violating anadministrative protective order;

(3) The violation did not result in anydisclosure of the business proprietaryinformation or the Secretary isotherwise able to determine that theviolation caused no harm to thesubmitter of the information; and

(4) The person cooperated fully in theinvestigation.

12. Section 354.7 is amended byrevising paragraph (b), as follows:

§ 354.7 Charging letter.

* * * * *(b) Settlement and amending the

charging letter. The Deputy UnderSecretary for International Trade and acharged or affected party may settle acharge brought under this part bymutual agreement at any time afterservice of the charging letter; approvalof the presiding official or theadministrative protective orderSanctions Board is not necessary. Thecharged or affected party may request ahearing but at the same time request thata presiding official not be appointedpending settlement discussions.Settlement agreements may includesanctions for purposes of § 354.18. TheDeputy Under Secretary forInternational Trade may amend,supplement, or withdraw the chargingletter as follows:

(1) If there has been no request for ahearing, or if supporting informationhas not been submitted under § 354.13,the withdrawal will not preclude futureactions on the same alleged violation.

(2) If a hearing has been requested butno presiding official has beenappointed, withdrawal of the chargingletter will preclude the Deputy UnderSecretary for International Trade fromseeking sanctions at a later date for thesame alleged violation.

(3) The Deputy Under Secretary forInternational Trade may amend,supplement or withdraw the chargingletter at any time after the appointmentof a presiding official, if the presiding

official determines that the interests ofjustice would thereby be served. If thepresiding official so determines, thepresiding official will also determinewhether the withdrawal will precludethe Deputy Under Secretary forInternational Trade from seekingsanctions at a later date for the samealleged violation.* * * * *

13. Section 354.9 is amended byrevising paragraph (b), as follows:

§ 354. 9 Request for a hearing.

(a) * * *(b) Upon timely receipt of a request

for a hearing, and unless the partyrequesting a hearing requests that theUnder Secretary not appoint a presidingofficial, the Under Secretary willappoint a presiding official to conductthe hearing and render an initialdecision.

§ 354.15 [Amended]

14. Section 354.15 is amended byremoving paragraph (e).

§ 354.17 [Amended]

15. Section 354.17(b) is amended byremoving the citations ‘‘19 CFR 353.30and § 355.20’’ and replacing them with‘‘19 CFR 351.305(c)’’.

16. Section 354.18 is added to part354, to read as follows:

§ 354.18 Public notice of sanctions.

If there is a final decision under§ 354.15 to impose sanctions, or if acharging letter is settled under§ 354.7(b), notice of the Secretary’sdecision or of the existence of asettlement will be published in theFederal Register. If a final decision isreached, such publication will be nosooner than 30 days after issuance of afinal decision or after a motion toreconsider has been denied, if such amotion was filed. In addition, wheneverthe Deputy Under Secretary forInternational Trade subjects a chargedor affected party to a sanction under§ 354.3(a)(1), the Deputy UnderSecretary for International Trade alsowill provide such information to theethics panel or other disciplinary bodyof the appropriate bar associations orother professional associations and toany Federal agency likely to have aninterest in the matter. The DeputyUnder Secretary for International Trade

will cooperate in any disciplinaryactions by any association or agency.Whenever the Deputy Under Secretaryfor International Trade subjects acharged or affected party to a privateletter of reprimand under § 354.3(a)(5),the Secretary will not make public theidentity of the violator, nor will theSecretary make public the specifics ofthe violation in a manner that wouldreveal indirectly the identity of theviolator.

17. Section 354.19 is added to part354, to read as follows:

§ 354.19 Sunset.

(a) If, after a period of three years fromthe date of issuance of a warning letter,a final decision or settlement in whichsanctions were imposed, the charged oraffected party has fully complied withthe terms of the sanctions and has notbeen found to have violated anotheradministrative protective order, theparty may request in writing that theDeputy Under Secretary forInternational Trade rescind the chargingletter. A request for rescission mustinclude:

(1) A description of the actions takenduring the preceding three years incompliance with the terms of thesanctions; and

(2) A letter certifying that: the chargedor affected party complied with theterms of the sanctions; the charged oraffected party has not received anotheradministrative protective order sanctionduring the three-year period; and thecharged or affected party is not thesubject of another investigation for apossible violation of an administrativeprotective order.

(b) Subject to the Chief Counsel’sconfirmation that the charged oraffected party has complied with theterms set forth in paragraph (a) of thissection, the Deputy Under Secretary forInternational Trade will rescind thecharging letter within 30 days afterreceiving the written request.

Appendix to 19 CFR Part 351, Subpart C

Note: The following appendix will notappear in the Code of Federal Regulations:Application for Administrative ProtectiveOrder in Antidumping or CountervailingDuty Proceeding, and AdministrativeProtective Order.

BILLING CODE 3510–DS–P


[FR Doc. 98–11802 Filed 5–1–98; 8:45 am]BILLING CODE 3510–DS–C

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