[Federal Register Volume 59, Number 77 (Thursday, April 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9632]
[[Page Unknown]]
[Federal Register: April 21, 1994]
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INTERNATIONAL TRADE COMMISSION
19 CFR Parts 201 and 207
Advance Notice of Proposed Rulemaking Concerning the Treatment of
Business Proprietary and Confidential Business Information
AGENCY: International Trade Commission.
ACTION: Advance notice of proposed rulemaking and request for comments.
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SUMMARY: The Commission is considering revision of its rules of general
application and its rules concerning antidumping and countervailing
duty investigations to change its procedures for defining business
proprietary information (BPI) and confidential business information
(CBI), disclosing such information under administrative protective
order (APO), responding to breaches of APO, and serving petitions.
The Commission hereby solicits written comments from interested
persons to aid the Commission in determining whether the subject
amendments should be made. For guidance on specific issues that the
Commission would like to have commenters address, see the Supplementary
Information section of this notice.
If the Commission decides to proceed with this rulemaking after
reviewing the comments filed in response to this notice, the revisions
will be promulgated in accordance with the Administrative Procedure Act
(APA) (5 U.S.C. Sec. 553), and will be codified in 19 CFR Parts 201 and
207.
DATES: Comments will be considered if received on or before June 20,
1994.
ADDRESSES: A signed original and 14 copies of each set of comments,
along with a cover letter stating the nature of the commenter's
interest in the proposed rulemaking, should be submitted to Donna R.
Koehnke, Secretary, U.S. International Trade Commission, 500 E Street,
SW., Room 112, Washington, DC 20436.
FOR FURTHER INFORMATION CONTACT: Paul R. Bardos, Esq., Office of the
General Counsel, U.S. International Trade Commission, telephone 202-
205-3102. Hearing-impaired individuals can obtain information
concerning the proposed rulemaking by contacting the Commission's TDD
terminal at 202-205-1810.
SUPPLEMENTARY INFORMATION: Section 335 of the Tariff Act of 1930 (19
U.S.C. 1335) authorizes the Commission to adopt such reasonable
procedure and rules and regulations as it deems necessary to carry out
its functions and duties. Part 201 of title 19 of the Code of Federal
Regulations currently sets forth procedures of general application to
nonadjudicative investigations, and in particular defines BPI and CBI
and establishes procedures for their handling. Part 207 of title 19
sets forth procedures for antidumping and countervailing duty
investigations, and in particular provides for the filing of petitions,
the handling of BPI, and the disclosure of BPI under APO.
The Commission has engaged in a number of meetings with
representatives of the international trade bar at which various
concerns about Commission practice were put forward. Some of those
concerns have been addressed by changes in internal policies. Others
cannot properly be addressed without changes to the Commission's rules.
Consequently, the Commission has determined to issue the present
advance notice of proposed rulemaking to acquaint the public with the
rules changes contemplated by the Commission and to seek public comment
on those proposed changes.
The Commission would like to have all commenters address the
following proposed revisions. Certain conventions have been used to
highlight the proposed revisions to the rules. New language is shown
inside bold-faced arrows, while language that would be deleted is set
off with bold-faced brackets.
1. Section 201.6 is proposed to be revised expressly to allow
parties and the Commission publicly to discuss confidential statistics
in nonquantitative characterizations unless the submitter provides good
cause for confidential treatment of such characterizations. In
particular, the revision would permit the discussion of trends in such
statistics, e.g., whether the difference between two confidential
figures shows an increase or a decrease. This revision would apply only
to CBI and BPI submitted in numerical form; textual CBI and BPI would
not be disclosed in any form. This revision would address a concern
expressed by practitioners that the Commission's definition of CBI and
BPI may overly restrict use of such information. The revision would
also define nondisclosable BPI as described in 19 U.S.C.
Sec. 1677f(c)(1)(A) and clarify the procedure for submitting such
information. Section 201.6 as revised would read as follows:
Sec. 201.6 Confidential business information.
(a) Definitions. (1)
Confidential business information is information which concerns or
relates to the trade secrets, processes, operations, style of works, or
apparatus, or to the production, sales, shipments, purchases,
transfers, identification of customers, inventories, or amount or
source of any income, profits, losses, or expenditures of any person,
firm, partnership, corporation, or other organization, or other
information of commercial value, the disclosure of which is likely to
have the effect of either impairing the Commission's ability to obtain
such information as is necessary to perform its statutory functions, or
causing substantial harm to the competitive position of the person,
firm, partnership, corporation, or other organization from which the
information was obtained, unless the Commission is required by law to
disclose such information. The term ``confidential business
information'' includes ``proprietary information'' within the meaning
of section 777(b) of the Tariff Act of 1930 (19 U.S.C. 1677f(b)).
Nonnumerical characterizations of numerical confidential
business information (e.g. discussion of trends) will be treated as
confidential business information only at the request of the submitter
for good cause shown.
(2) Nondisclosable confidential business information is
confidential business information that is privileged, classified, or
specific information of a type for which there is a clear and
compelling need to withhold from disclosure. Special rules for the
handling of such information are set out in section 207.7 of this
chapter.
(b) Procedure for submitting business information in confidence.
(1) A request for confidential treatment of business information shall
be addressed to the Secretary, United States International Trade
Commission, 500 E Street SW., Washington, DC 20436, and shall indicate
clearly on the envelope that it is a request for confidential
treatment.
(2) In the absence of good cause shown, any request relating to
material to be submitted during the course of a hearing shall be
submitted at least three (3) working days prior to the commencement of
such hearing.
(3) With each submission of, or offer to submit, business
information which a submitter desires to be treated as confidential
business information, under paragraph (a)[(2)] of this section, the
submitter shall provide the following, which may be disclosed to the
public:
(i) A written description of the nature of the subject information;
(ii) A justification for the request for its confidential
treatment;
(iii) A certification in writing under oath that substantially
identical information is not available to the public;
(iv) A copy of the document (A) clearly marked on its cover as to
the pages on which confidential information can be found, [and] (B)
with information for which confidential treatment is requested clearly
identified by means of brackets; and (C) with information for
which nondisclosable confidential treatment is requested clearly
identified by means of double brackets (except when submission
of such document is withheld in accord with paragraph (b)(4) of this
section);
(v) A nonconfidential copy of the documents as required by
Sec. 201.8(d).
(4) The submission of the documents itemized in paragraph (b)(3) of
this section will provide the basis for rulings on the confidentiality
of submissions, including rulings on the confidentiality of submissions
offered to the Commission which have not yet been placed under the
possession, control, or custody of the Commission. The submitter has
the option of providing the business information for which confidential
treatment is sought at the time the documents itemized in paragraph
(b)(3) of this section are provided or of withholding them until a
ruling on their confidentiality has been issued.
(c) Identification of business information submitted in confidence.
Business information which a submitter desires to be treated as
confidential shall be clearly labeled ``confidential business
information'' when submitted, and shall be segregated from other
material being submitted.
(d) Approval or denial of requests for confidential treatment.
Approval or denial of requests shall be made only by the Secretary or
Acting Secretary. A denial shall be in writing, shall specify the
reason therefor, and shall advise the submitter of the right to appeal
to the Commission.
(e) Appeals from denial of confidential treatment. (1) For good
cause shown, the Commission may grant an appeal from a denial by the
Secretary of a request for confidential treatment of a submission. Any
appeal filed shall be addressed to the Chairman, United States
International Trade Commission, 500 E Street SW., Washington, DC 20436,
and shall clearly indicate that it is a confidential submission appeal.
An appeal may be made within twenty (20) days of a denial or whenever
the approval or denial has not been forthcoming within ten (10) days
(excepting Saturdays, Sundays, and Federal legal holidays) of the
receipt of a confidential treatment request, unless an extension notice
in writing with the reasons therefor has been provided the person
requesting confidential treatment.
(2) An appeal will be decided within twenty (20) days of its
receipt (excepting Saturdays, Sundays, and Federal legal holidays)
unless an extension, notice in writing with the reasons therefor, has
been provided the person making the appeal.
(3) The justification submitted to the Commission in connection
with an appeal shall be limited to that presented to the Secretary with
the original or amended request. When the Secretary or Acting Secretary
has denied a request on the ground that the submitter failed to provide
adequate justification, any such additional justification shall be
submitted to the Secretary for his consideration as part of an amended
request. For purposes of paragraph (e)(1) of this section, the twenty
(20) day period for filing an appeal shall be tolled on the filing of
an amended request and a new twenty (20) day period shall begin once
the Secretary or Acting Secretary has denied the amended request, or
the approval or denial has not been forthcoming within ten (10) days of
the filing of the amended request. A denial of a request by the
Secretary on the ground of inadequate justification shall not obligate
a requester to furnish additional justification and shall not preclude
a requester from filing an appeal with the Commission based on the
justification earlier submitted to the Secretary.
(f) Appeals from approval of confidential treatment. An appeal from
an approval of a request for confidential treatment of a submission
shall be made to the Secretary, United States International Trade
Commission, 500 E Street SW., Washington, D.C. 20436, shall comply with
Sec. 201.17 through Sec. 201.19 of the Commission's rules of practice
and procedure implementing the Freedom of Information Act, and shall
show that a copy thereof has been served upon the submitter.
(g) Granting confidential status to business information. Any
business information submitted in confidence and determined to be
entitled to confidential treatment shall be maintained in confidence by
the Commission and not disclosed except as required by law. In the
event that any business information submitted to the Commission is not
entitled to confidential treatment, the submitter will be permitted to
withdraw the tender unless it is the subject of a request under the
Freedom of Information Act or of judicial discovery proceedings.
(h) Scope of provisions. The provisions of Secs. 201.6(b) and 201.6
(d) through (g) shall not apply to adjudicative investigations under
Subchapter C, Part 210, of the Commission's rules of practice and
procedure.
2. Section 207.3 is proposed to be revised to require that notices
of petition (further dealt with in the proposed revisions to
Sec. 207.10 discussed below) and certain other documents be served, if
by mail, by overnight mail with Saturday delivery requested. This
revision, which recognizes the increasingly wide availability of
Saturday delivery, seeks to ensure that parties receive service of
important documents as rapidly as possible. Another revision would
clarify that recipients of confidential briefs must not rely on the
initial bracketing of such briefs in discussing the information
contained therein with persons not authorized to view business
proprietary information. Section 207.3 as revised would read as
follows:
Sec. 207.3 Service, filing, and certification of documents.
(a) Certification. Any person submitting factual information on
behalf of the petitioner or any other interested party for inclusion in
the record, and any person submitting a response to a Commission
questionnaire, must certify that such information is accurate and
complete to the best of the submitter's knowledge.
(b) Service. Any party submitting a document for inclusion in the
record of the investigation shall, in addition to complying with
Sec. 201.8 of this chapter, serve a copy of each such document on all
other parties to the investigation in the manner prescribed in
Sec. 201.16 of this chapter. If a document is filed before the
Secretary's issuance of the service list provided for in Sec. 201.11 of
this chapter or the administrative protective order list provided for
in Sec. 207.7, the document need not be accompanied by a certificate of
service, but the document shall be served on all appropriate parties
within two (2) days of the issuance of the service list or the
administrative protective order list and a certificate of service shall
then be filed. Notwithstanding section 201.16 of this chapter,
notices of petition, petitions, briefs, and testimony
filed by parties pursuant to Secs. 207.10, 207.15, 207.22, 207.23, and
207.24 shall be served by hand or, if served by mail, by overnight mail
(with Saturday delivery requested) or its equivalent.
Failure to comply with the requirements of this rule may result in
removal from status as a party to the investigation. The Commission
shall make available to all parties to the investigation a copy of each
document, except transcripts of conferences and hearings, business
proprietary information, privileged information, and information
required to be served under this section, placed in the record of the
investigation by the Commission.
(c) Filing. Documents to be filed with the Commission must comply
with applicable rules, including Sec. 201.8 of this chapter. If the
Commission establishes a deadline for the filing of a document, and the
submitter includes business proprietary information in the document,
the submitter is to file and, if the submitter is a party, serve the
business proprietary version of the document on the deadline and may
file and serve the nonbusiness proprietary version of the document no
later than one business day after the deadline for filing the document.
The business proprietary version shall enclose all business proprietary
information in brackets and have the following warning marked on every
page: ``Bracketing of BPI not final for one business day after date of
filing.'' The bracketing becomes final one business day after the date
of filing of the document, i.e., at the same time as the nonbusiness
proprietary version of the document is due to be filed. Until the
bracketing becomes final, recipients of the document may not
rely on it in discussing [divulge any part of] the
contents of the document to anyone not subject to the administrative
protective order issued in the investigation. If the submitter
discovers it has failed to bracket correctly, the submitter may file a
corrected version or portion of the business proprietary document at
the same time as the nonbusiness proprietary version is filed. No
changes to the document other than bracketing and deletion of business
proprietary information are permitted after the deadline. Failure to
comply with this paragraph may result in the striking from the record
of all or a portion of a submitter's document.
3. Section 207.7 is proposed to be revised to permit party
representatives to apply for disclosure of business proprietary
information under APO between the end of a preliminary investigation
and the beginning of a final. The revision would also make it easier
for a party who is changing representatives to transfer the case file
from one representative to the other.
Section 207.7 would further be revised to provide that, for each
law firm or consulting firm representing a party, only one lead
signatory would apply for disclosure of BPI under APO, and assume
ultimate responsibility for handling BPI within the firm. Other
professionals and clericals would obtain access to BPI under the APO
upon their addition to a roster. This revision would clarify who is
responsible for breaches of APO and streamline the procedure for
disclosing BPI under APO to professionals and clericals other than the
lead signatory. Professionals would still be subject to sanctions for
breach, and the lead signatory would be liable for the breaches of
anyone (professional or clerical) who breached an APO while under his
supervision.
Another revision would delete a number of strictures on the
handling of BPI that currently appear in Commission APOs in Title VII
investigations. These deletions reflect a shift away from directing
firms in detail how to run their offices. The phrase ``competitive
decisionmaking'' would be more fully defined in terms used by the court
in the case cited in the current rules.
In addition, the revised rule would define a sanctionable breach.
Three alternative definitions are proposed: (1) Any breach would be
sanctionable; (2) only breaches resulting in actual disclosure of BPI
would be sanctionable; and (3) only breaches resulting in actual harm
to the submitter of the BPI would be sanctionable. The Commission seeks
comments on the advisability of each of the three alternatives. The
revision would also codify the Commission's existing practice of taking
actions, such as issuing warning letters, that do not constitute
sanctions. Section 207.7 as revised would read as follows:
Sec. 207.7 Limited disclosure of certain business proprietary
information under administrative protective order.
(a) (1) Disclosure. Upon receipt of a timely application filed by
an authorized applicant, as defined in paragraph (a)(3) of this
section, which (i) describes in general terms the information
requested, and (ii) sets forth the reasons for the request (e.g., all
business proprietary information properly disclosed pursuant to this
section for the purpose of representing an interested party in
investigations pending before the Commission), the Secretary shall make
available all business proprietary information contained in Commission
memoranda and reports and in written submissions filed with the
Commission at any time during the investigation (except
nondisclosable confidential business information
[privileged information, classified information, and specific
information of a type which there is a clear and compelling need to
withhold from disclosure, e.g., trade secrets]) to the authorized
applicant under an administrative protective order described in
paragraph (b) of this section. The term ``business proprietary
information'' has the same meaning as the term ``confidential business
information'' as defined in Sec. 201.6 of this chapter.
(2) Application. An application under paragraph (a)(1) of this
section must be made by an authorized applicant on a form adopted by
the Secretary or a photocopy thereof. An initial
application on behalf of a petitioner, a respondent, or another party
must be made no later than the time that entries of appearance are due
pursuant to Sec. 201.11 of this chapter. In the event that two or more
authorized applicants represent one interested party who is a party to
the investigation, the authorized applicants must select one of their
number to be lead authorized applicant. The lead authorized applicant's
application must be filed no later than the time that entries of
appearance are due. Provided that the application is accepted, the lead
authorized applicant shall be served with business proprietary
information pursuant to paragraph (f) of this section. The other
authorized applicants representing the same party may file their
applications after the deadline for entries of appearance and
before the date established by the Secretary under
Sec. 207.7(c). [but at least five (5) days before the deadline
for filing posthearing briefs in the investigation, or the deadline for
filing briefs in a preliminary investigation, and shall] They
need not be served with business proprietary
information, unless subsequently one becomes the lead
authorized applicant.
(3) Authorized applicant. (i) Only an authorized applicant may file
an application under this subsection. An authorized applicant is:
(I) An attorney for an interested party which is a party to the
investigation;
(II) A consultant or expert under the direction and control of a
person under paragraph (a)(3)(i)(I) of this section;
(III) A consultant or expert who appears regularly before the
Commission and who represents an interested party which is a party to
the investigation; or
(IV) A representative of an interested party which is a party to
the investigation, if such interested party is not represented by
counsel.
(ii) Only one authorized applicant at each firm or office
representing a party may file an application.
(iii) In addition, an authorized applicant must
not be involved in competitive decisionmaking[, as defined in U.S.
Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984),] for an
interested party which is a party to the investigation.
Involvement in ``competitive decisionmaking'' includes
activities, associations, and relationships with an interested party
which is a party to the investigation that involve the prospective
authorized applicant's advice or participation in any of such party's
decisions made in light of similar or corresponding information about a
competitor (pricing, product design, etc.).
(4) Forms and determinations. (i) The Secretary may adopt, from
time to time, forms for submitting requests for disclosure pursuant to
an administrative protective order incorporating the terms of this
rule. The Secretary shall determine whether the requirements for
release of information under this rule have been satisfied. This
determination shall be made concerning specific business proprietary
information as expeditiously as possible but in no event later than
fourteen (14) days from the filing of the information, or seven (7)
days in a preliminary investigation, except if the submitter of the
information objects to its release or the information is unusually
voluminous or complex, in which case the determination shall be made
within thirty (30) days from the filing of the information, or ten (10)
days in a preliminary investigation. The Secretary shall establish a
list of parties whose applications have been granted. The Secretary's
determination shall be final for purposes of review by the U.S. Court
of International Trade under section 777(c)(2) of the Act.
(ii) Should the Secretary determine pursuant to this section that
materials sought to be protected from public disclosure by a person do
not constitute business proprietary information or were not required to
be served under paragraph (f) of this section, then the Secretary
shall, upon request, issue an order on behalf of the Commission
requiring the return of all copies of such materials served in
accordance with paragraph (f).
(iii) The Secretary shall release business proprietary information
only to an authorized applicant whose application has been accepted and
who presents the application along with adequate personal
identification; or a person on a roster described in
paragraph (b)(1)(iv) of this section who presents a copy of the
roster [statement] referred to in that paragraph
along with adequate personal identification.
(iv) An authorized applicant granted access to business proprietary
information in a preliminary investigation may, subject to paragraph
(c) of this section, retain such business proprietary information
during any final investigation corresponding to that preliminary
investigation, provided that the authorized applicant has not lost his
authorized applicant status (e.g., by terminating his representation of
an interested party who is a party). When retaining business
proprietary information pursuant to this paragraph, the authorized
applicant need not file a new application in the final investigation[,
but shall list in his entry of appearance in the final investigation
the authorized applicants in the same firm and the persons employed or
supervised by the authorized applicant who continue to participate in
the investigation].
(b) Administrative protective order. The administrative protective
order under which information is made available to the authorized
applicant shall require him to submit to the Secretary a personal sworn
statement that, in addition to such other conditions as the Secretary
may require, he shall:
(1) Not divulge any of the business proprietary information
obtained under the administrative protective order and not otherwise
available to him, to any person other than
(i) Personnel of the Commission concerned with the investigation,
(ii) The person or agency from whom the business proprietary
information was obtained,
(iii) A person whose application for access to business proprietary
information under the administrative protective order has been granted
by the Secretary, and
(iv) Other persons within the lead authorized applicant's
firm or office [, such as paralegals and clerical staff,] who
are employed or supervised by the authorized applicant; who have a need
thereof in connection with the investigation; who are not involved in
competitive decisionmaking for an interested party which is a party to
the investigation; and who are on the lead authorized
applicant's administrative protective order roster. This roster shall
be a list of those within the lead authorized applicant's firm who will
have access to business proprietary information disclosed under the
administrative protective order. It shall list attorneys, consultants,
and experts separately from nonprofessional staff. All those listed
must sign an acknowledgment that they have read the lead authorized
applicant's administrative protective order application and understand
its terms before being given access to business proprietary
information. The signature of an attorney, consultant, or expert shall
constitute an acknowledgment of responsibility for any breach of the
administrative protective order he or she might commit. The authorized
applicant may add or delete names from the roster at any time, but must
notify the Commission in writing of any such change within two days of
the change. [have submitted to the Secretary a signed
statement in a form approved by the Secretary that they agree to be
bound by the administrative protective order (t]The
authorized applicant shall be deemed responsible for [such persons']
the compliance with the administrative protective
order of any person on his or her roster[)];
(2) Use such business proprietary information solely for the
purposes of the Commission investigation then in progress or for
judicial or other review of such Commission investigation;
[(3) Not consult with any person not described in paragraph (b)(1)
of this section concerning such business proprietary information
without first having received the written consent of the Secretary and
the party or the attorney of the party from whom such business
proprietary information was obtained;
(4) Whenever materials (e.g., documents, computer disks, etc.)
containing such business proprietary information are not being used,
store such material in a locked file cabinet, vault, safe, or other
suitable container;
(5) Serve all materials containing business proprietary information
as directed by the Secretary and pursuant to paragraph (f) of this
section;
(6) Transmit all materials containing business proprietary
information with a cover sheet identifying the materials as containing
business proprietary information;
(7) Comply with the provisions of this section;
(8) Make true and accurate representations in the authorized
applicant's application and promptly notify the Secretary of any
changes that occur after the submission of the application and that
affect the representations made in the application (e.g., change in
personnel assigned to the investigation);
(9)] (3) Report promptly and confirm in writing
to the Secretary any breach of the administrative protective order; and
(4) [10)] Acknowledge that breach of the
administrative protective order may subject the authorized applicant to
such sanctions or other actions as the Commission
deems appropriate.
(c) Final disposition of material released under administrative
protective order. At such date as the Secretary may determine
appropriate for particular data, each authorized applicant shall return
or destroy all copies of materials released to authorized applicants
pursuant to this section and all other materials containing business
proprietary information, such as charts or notes [based on any such
information received under administrative protective order], and file
with the Secretary a certificate attesting to his personal, good faith
belief that all copies of such material have been returned or destroyed
and no copies of such material have been made available to any person
to whom disclosure was not specifically authorized.
(d) [Sanctions for b]Breaches
of administrative protective orders. (1)
Sanctionable breaches defined. A sanctionable breach is a breach of an
administrative protective order [that results in harm to the submitter
of the information] [the results in the actual disclosure of
confidential business information to an unauthorized person].
(2) Sanctions. A sanctionable
breach of an administrative protective order may subject an offender
to:
(i[1]) Disbarment from practice in any capacity
before the Commission along with such person's partners, associates,
employer, and employees, for up to seven years following publication of
a determination that the order has been breached;
(ii[2]) Referral to the United States Attorney;
(iii[3]) In the case of an attorney, accountant,
or other professional, referral to the ethics panel of the appropriate
professional association; and
(iv[4]) Such other administrative sanctions as
the Commission determines to be appropriate, including public release
of or striking from the record any information or briefs submitted by,
or on behalf of, the offender or the party represented by the offender,
and denial of further access to business proprietary information in the
current or any future investigations before the Commission.
(3) [For all other breaches,] the Commission may take such
other action (e.g., a warning letter), that it deems
appropriate.
(e) Sanction procedure. (1) The Commission shall determine whether
any person has violated an administrative protective order, and may
impose sanctions in accordance with paragraph (d) of this section.
Whenever the Commission has reason to believe that a person may have
breached an administrative protective order issued pursuant to this
section, the Secretary shall issue a letter informing such person that
the Commission has reason to believe a breach has occurred and that the
person has a reasonable opportunity to present his views on whether a
breach has occurred. If subsequently the Commission determines that a
breach has occurred, then the Secretary shall issue a letter informing
such person of that determination and that the person has a reasonable
opportunity to present his views on whether mitigating circumstances
exist and on the appropriate sanction to be imposed, but no longer on
whether a breach has occurred. Once such person has been afforded a
reasonable opportunity to present his views, the Commission shall
determine what sanction if any to impose.
(2) Where the sanction imposed is a private letter of reprimand,
the Secretary shall expunge the sanction from the recipient's record
two (2) years from the date of issuance of the sanction, provided that
(i) the recipient has not received another unexpunged sanction
pursuant to this section at any time prior to the end of the two year
period, and
(ii) the recipient is not the subject of an investigation for
possible breach of administrative protective order under this section
at the end of the two year period.
Upon the completion of such a pending breach investigation without the
issuance of a sanction, the original sanction shall be expunged. The
Secretary shall notify a sanction recipient in the event that the
sanction is expunged.
(f) Service. (1) Any party filing written submissions
(other than a petition) which include business
proprietary information to the Commission during an investigation shall
at the same time serve complete copies of such submissions upon all
authorized applicants specified on the list established by the
Secretary pursuant to paragraph (a)(4) of this section, and a
nonbusiness proprietary version on all other parties. All such
submissions must be accompanied by a certificate attesting that
complete copies of the submission have been properly served. In the
event that a submission is filed before the Secretary's list is
established, the document need not be accompanied by a certificate of
service, but the submission shall be served within two (2) days of the
establishment of the list and a certificate of service shall then be
filed.
(2) [A party may seek an exemption from the service requirement of
paragraph (f)(1) of this section for a particular submission by filing
a request for exemption with the reasons therefor along with the
submission. The Secretary shall not accept the submission into the
record but shall hold the submission until the request has been granted
or denied. The Secretary shall promptly respond to the request.] If a
party's request under paragraph (g) of this
section is granted, the Secretary shall accept the
[submission] information exempt from disclosure into
the record. [If a request is denied, the party shall serve the
submission within two (2) days of the denial and file a certificate of
service in the form described in paragraph (f)(1) of this section, and
the Secretary shall then accept the submission into the record. All
submissions which include business proprietary information must be
accompanied by a certificate attesting either that complete copies of
the submission have been properly served, or that a request for
exemption has been filed with the submission.] The party shall
serve the submission containing such information in accordance with the
requirements of Sec. 207.3(b) and paragraph (f)(1) of this section,
with the information redacted from the copies served.
(3) The Secretary shall not accept for filing into the record of an
investigation submissions filed without a proper certificate of
service. Failure to comply with paragraph (f) of this section may
result in denial of party status and such sanctions as the Commission
deems appropriate. Business proprietary information in submissions must
be dealt with as required by Sec. 207.3(c) [clearly
marked as such when submitted, and must be segregated from other
material being submitted].
(g) Exemption from disclosure. (1) In general.
Any person [submitting business proprietary information to the
Commission] may request exemption from the disclosure of [such]
business proprietary information under administrative
protective order, whether the person desires to include such
information in a petition filed under Sec. 207.10 of these rules, or
any other submission to the Commission during the course of an
investigation. [A request must be filed in writing with the
reasons therefor at the same time as the information being submitted is
filed.] Such a request shall only be granted if the Secretary finds
that such information is [privileged information, classified
information, or specific information of a type for which there is a
clear and compelling need to withhold from disclosure]
nondisclosable confidential business information as defined in
section 201.6 of this chapter. The request will be granted or denied
not later than thirty (30) days (ten (10) days in a preliminary
investigation) after the date on which the request is filed.
[In the case of a party, the request shall be treated as a request for
exemption from service under paragraph (f) of this section. In the case
of a nonparty, the Secretary shall promptly notify the submitter as to
whether the request has been approved or denied.]
(2) Request for exemption. A request for exemption from
disclosure must be filed with the Secretary in writing with the reasons
therefor. At the same time as the request is filed, one copy of the
business proprietary information in question must be lodged with the
Secretary solely for the purpose of obtaining a determination as to the
request. The business proprietary information for which exemption from
disclosure is sought shall remain the property of the requester, and
shall not become or be incorporated into any agency record until such
time as the request is granted. A request should, when possible, be
filed two business days prior to the deadline, if any, for filing the
document in which the information for which exemption from disclosure
is sought is proposed to be included. If the request is denied, the
copy of the information lodged with the Secretary shall promptly be
returned to the requester. Such a request shall only be granted if the
Secretary finds that such information is privileged information,
classified information, or specific information of a type for which
there is a clear and compelling need to withhold from disclosure. The
Secretary shall promptly notify the requester as to whether the request
has been approved or denied.
(3) Procedure if request is approved. If the request is approved,
the person shall file three versions of the submission containing the
nondisclosable confidential business information in question. One
version shall contain all business proprietary information, bracketed
in accordance with section 201.6 of this chapter and Sec. 207.3(c). The
other two versions shall conform to and be filed in accordance with the
requirements of section 201.6 of this chapter and Sec. 207.3, except
that the specific information as to which exemption from disclosure was
granted shall be redacted from the submission.
(4) Procedure if request is denied. If the request is denied, the
copy of the information lodged with the Secretary shall promptly be
returned to the requester. The requester may file the submission in
question without that information, in accordance with the requirements
of Sec. 207.3.
4. Section 207.10 is proposed to be revised to require petitioners
to serve on potential respondents a notice of petition and to serve the
confidential version of the petition on a party representative as soon
as a petitioner is notified that that representative has had its APO
application granted. Trade practitioners have expressed the concern
that party representatives whose APO applications have already been
approved do not gain access to BPI, and especially the confidential
version of the petition, quickly enough in preliminary investigations
to prepare for the preliminary conference and the postconference
briefs. The revision would quickly apprise potential respondents of the
filing of a petition and obligate petitioner to serve the confidential
version of the petition more rapidly than is currently done. Section
207.10 as revised would read as follows:
Sec. 207.10 Filing of petition with the Commission.
(a) Filing of the petition. Any interested party who files a
petition with the administering authority pursuant to section 702(b) or
732(b) of the Act, or section 303 of the Act in a case in which a
Commission determination under Title VII of the Act is required, shall
file copies of the petition, pursuant to Sec. 201.8 of this chapter,
with the Secretary on the same day the petition is filed with the
administering authority. If the petition complies with the provisions
of Sec. 207.11, it shall be deemed to be properly filed on the date on
which the requisite number of copies of the petition is received by the
Secretary. The Secretary shall notify the administering authority of
that date. Notwithstanding Sec. 201.11 of this chapter, a petitioner
need not file an entry of appearance in the preliminary investigation
instituted upon the filing of its petition, which shall be deemed an
entry of appearance, although the petitioner must file an entry of
appearance in any final investigation corresponding to that preliminary
investigation.
(b) Notice of petition. On the same day the petitioner
files a petition with the Commission, it shall serve a notice of
petition on each interested party named in the petition. The notice
must state the name of the petitioner and give the address of the
Commission. The notice must be served in accord with Sec. 207.3(b). A
certificate of service must be filed with the petition.
(c) Service of the petition. (1) The Secretary
shall promptly notify a petitioner when, before the establishment of a
service list under Sec. 207.7(a)(4), he or she approves an application
under Sec. 207.7(a). When practicable, this notification shall be made
by facsimile transmission. [A copy of the petition, or a
version thereof omitting business proprietary information, shall be
served by petitioner on those persons enumerated on the list
established by the Secretary pursuant to Sec. 201.11(d) of this chapter
within two (2) days of the establishment of the Secretary's list.] A
copy of the petition including all business proprietary information
shall then be served by petitioner on those
approved applicants in accord with Sec. 207.3(b) within two
(2) calendar days. The petitioner shall serve persons
enumerated on the list established by the Secretary pursuant to
Sec. 207.7(a)(4) (not already served) within two (2)
calendar days of the establishment of the Secretary's
list. Service shall be attested by a certificate of service as required
in Sec. 201.16(c)(2) of this chapter.
(2) A copy of the petition omitting business proprietary
information shall be served by petitioner on those persons enumerated
on the list established by the Secretary pursuant to Sec. 201.11(d) of
this chapter within two (2) calendar days of the establishment of the
Secretary's list.
(c) Amendments and withdrawals; critical circumstances. (1) Any
amendment or withdrawal of a petition shall be filed on the same day
with both the Secretary and the administering authority, without regard
to whether the requester seeks action only by one agency.
(2) When not made in the petition, any allegations of critical
circumstances under section 303, 703 or 733 of the Act shall be made in
an amendment to the petition and shall be filed as early as possible.
Critical circumstances allegations, whether made in the petition or in
an amendment thereto, shall contain information reasonably available to
petitioner concerning the factors enumerated in sections 705(b)(4)(A)
and 735(b)(4)(A) of the Act.
(d) Section 303(a)(1) petitions. If during an investigation under
section 303(a)(1) of the Act a Commission determination under Title VII
of the Act becomes required, the Commission shall issue an order
instructing petitioner to provide all information reasonably available
to it concerning the determination that the Commission is to make in
the investigation.
By order of the Commission.
Issued: April 15, 1994.
Donna R. Koehnke,
Secretary.
[FR Doc. 94-9632 Filed 4-20-94; 8:45 am]
BILLING CODE 7020-02-P