[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