[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31511]


[Federal Register: December 28, 1994]


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INTERNATIONAL TRADE COMMISSION

19 CFR Parts 201 and 207


Rules of General Application; Investigations of Whether Injury to 
Domestic Industries Results From Imports Sold at Less Than Fair Value 
or From Subsidized Exports to the United States

AGENCY: U.S. International Trade Commission.

ACTION: Notice of final rulemaking.

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SUMMARY: The Commission is amending the rules to address concerns which 
have arisen relating to Commission practice. The amendments provide, in 
particular, for changes relating to sanctions and other actions in 
response to administrative protective order (APO) breaches, the 
procedures for conducting APO breach investigations, the filing of 
prehearing briefs, closed sessions of Commission hearings in title VII 
and other investigations, and the procedures for considering requests 
for exemption from disclosure under APO of business proprietary 
information in title VII investigations.

EFFECTIVE DATE: January 27, 1995.

FOR FURTHER INFORMATION CONTACT:
Paul R. Bardos, Esq., Office of the General Counsel, U.S. International 
Trade Commission, telephone 202-205-3102. Hearing-impaired persons are 
advised that information on the matter can be obtained by contacting 
the Commission's TDD terminal on 202-225-1810.

SUPPLEMENTARY INFORMATION: Section 335 of the Tariff Act of 1930 (19 
U.S.C. 1335) authorizes the Commission to adopt such reasonable 
procedures and rules and regulations as it deems necessary to carry out 
its functions and duties.
    Commission rules ordinarily are promulgated in accordance with the 
rulemaking provisions of section 553 of the Administrative Procedure 
Act (5 U.S.C. 551 et seq.) (APA), which entails the following steps: 
(1) publication of a notice of proposed rulemaking; (2) solicitation of 
public comment on the proposed rules; (3) Commission review of such 
comments prior to developing final rules; and (4) publication of the 
final rules thirty days prior to their effective date. See 5 U.S.C. 
553. Notice of proposed rulemaking was published in the Federal 
Register of April 15, 1993 (58 Fed. Reg. 19,638) and interested persons 
were given until May 17, 1993, to submit comments. Comments were 
received from the Customs and International Trade Bar Association 
(CITBA); Adduci, Mastriani, Schaumberg & Schill (AMS&S); Grunfeld, 
Desiderio, Lebowitz & Silverman (GDL&B); Stewart & Stewart (S&S); and 
Columbia Impex Corp.
    On April 21, 1994, the Commission published an advance notice of 
proposed rulemaking (59 FR 18982) concerning Parts 201 and 207. The 
rulemaking proceeding of which the present notice is a part is distinct 
from that effort.
    The Commission has determined that these rules amendments do not 
meet the criteria described in section 3(f) of Executive Order 12866, 
Sep. 30, 1993 (58 F.R. 51735 (Oct. 4, 1993)) and do not constitute a 
significant regulatory action for the purposes of the EO. Moreover, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 601 note), the 
Commission hereby certifies pursuant to 5 U.S.C. 605(b) that the 
amendments set forth in this notice are not likely to have a 
significant economic impact on a substantial number of small business 
entities. This is because the rules amendments constitute merely 
clarifications and streamlining of the procedures of the Commission.

Explanation of the Amendments to 19 CFR Parts 201 and 207

Section 201.13 and 207.23

    Sections 201.13 and 207.23 are amended as described in the notice 
of proposed rulemaking to modify the procedure for closing to the 
public a portion of Commission hearings to permit the discussion of 
confidential or proprietary information.
    CITBA commented that it understood that the closed sessions are 
also intended to apply to the conduct of staff conferences, since 
section 207.15, governing those conferences, incorporates by reference 
the procedures in section 201.13. CITBA suggested that the Commission 
consider shortening the period for requesting a closed session in a 
preliminary conference, in view of the short time period in preliminary 
title VII investigations. CITBA suggested that three days would be 
appropriate. CITBA also suggested that, as a cosmetic change to improve 
clarity, the Commission should make the provisions governing closed 
sessions of hearings separate subsections, rather than including them 
within subsection (a) of rules 201.13 and 207.23. S&S expressed general 
support for the closed session amendment, but stated a concern that 
increasingly large closed portions would make hearings less 
understandable to clients and reduce their opportunity to respond.
    The Commission agrees with CITBA that the provisions for closing 
hearing should be applied to conferences in preliminary title VII 
investigations, with a shorter time period as suggested by CITBA. The 
final version of rule 201.13 incorporates that change. The Commission 
has also adopted CITBA's proposed cosmetic change. The final version of 
the rules establishes separate subsections of rules 201.13 and 207.23 
providing for closed sessions.

Section 207.7(a)(3)(ii)

    Rule 207.7(a)(3)(ii) is amended to clarify the definition of 
``competitive decisionmaking.'' CITBA and AMS&S recommended including 
examples or additional guidelines on the factual circumstances 
constituting ``competitive decision making.'' AMS&S also suggested that 
the Commission clarify whether ``involvement'' includes past, present, 
or future continuing relationships. The Commission has adopted the 
suggestion of AMS&S. The Commission finds it inappropriate to put 
examples or guidelines in the rules, in order to avoid limiting the 
Commission's flexibility in assessing specific factual situations to 
determine whether access to BPI by in-house counsel is appropriate. 
However, the Commission is willing to give parties additional guidance 
on this issue by providing the following examples in this preamble.
    In A Hirsh, Inc. v. United States, 11 CIT 208, 657 F. Supp. 1297 
(1987), during judicial review of a Commission title VII determination, 
the U.S. Court of International Trade (CIT) denied the request of an 
in-house counsel for access to the BPI in the Commission's 
investigation record. During the Commission's investigation, this 
individual, the petitioner's general counsel and chief legal officer, 
had not had access to BPI, and the petitioner had been represented by 
outside counsel. The CIT concluded that the interest in guaranteeing a 
high degree of confidentiality in the information outweighed the 
individual's need for access, particularly since petitioner was 
represented by outside counsel. The court noted, among other 
circumstances, that petitioner was a family-owned and -operated 
company, and that the individual himself had been empowered to act as 
president in the absence or disability of the company president, his 
father. The court also noted that the individual was an officer of the 
company, and had familial ties with the company's operating officers, 
who included his father and brother, suggesting a lack of isolation 
from the commercial activities of the company. Although the case did 
not directly involve a Commission decision on whether to grant access 
to BPI to in-house counsel, it illustrates the sort of factors that 
might prompt denial of access to BPI.
    With respect to a Commission determination on the status of in-
house counsel in a title VII investigation, the U.S. Court of Appeals 
for the Federal Circuit affirmed the Commission's decision to grant 
access to BPI to an in-house counsel. The Commission had granted access 
based on the individual's certification that, in his position as 
general counsel for the respondent company, he was not involved in 
competitive decision-making. The individual had provided the Commission 
with a description of his duties as general counsel, senior vice 
president, and secretary. Those duties included supervising the 
company's legal staff, instituting and defending lawsuits on behalf of 
the company, preparing contracts, and handling securities and labor 
matters. He stated that he was not involved in decisions of pricing and 
the technical design of products. In a further submission to the 
Commission, he stated that he reviewed securities filings, employee 
benefit plans and stock purchase plans, kept the minutes of the Board 
of Directors, attended staff meetings where the results of the 
company's operations and financial reports were reviewed, attended 
meetings where the current state of affairs of retail outlets was 
examined, but that at none of these meetings were issues of pricing or 
product design discussed. Petitioners in the investigation sought an 
injunction against the grant of access. The CIT granted an injunction 
denying the individual access, finding that his responsibilities 
constituted involvement in competitive decisionmaking, but the Federal 
Circuit reversed. Matsushita Electric Industrial Co., Ltd. v. United 
States, 14 CIT 674, 746 F. Supp. 1103, 1106 (1990), rev'd,, 929 F.2d 
1577 (1990).

Section 207.7(b)(10) and (d)

    Paragraphs (b)(10) and (d) of section 207.7 are amended to specify 
that the Commission may take actions other than sanctions in response 
to APO breaches. AMS&S recommended that the Commission provide examples 
of ``other actions'' that would fall within the scope of the provision. 
The final version of the rule specifies that a ``warning letter'' is 
one of the possible actions the Commission may take. The rule also 
makes clear, however, that the one example is not exclusive. The 
Commission may take other actions as it determines to be appropriate 
even if they are not listed in the rule. Paragraph (d) of section 207.7 
is further amended to reflect Commission practice by specifying that 
available sanctions include public and private letters of reprimand.

Section 207.7(e)

    Section 207.7(e) is amended to establish a deadline for commencing 
APO breach investigations. Further, it had been proposed to amend 
section 207.7(e) to streamline the process of investigating alleged 
breaches of APOs by replacing with a one-step procedure the existing 
two-step process, whereby an alleged breacher is first asked for views 
on whether a breach occurred and is only asked for views on mitigating 
circumstances and the appropriate sanction after a finding of breach 
has been made.
    CITBA expressed concern at the proposed single-step procedure. 
CITBA commented that the proposed procedure may, in some cases, 
significantly diminish a party's right to have a reasonable opportunity 
to present its arguments on the three issues of whether a breach 
occurred, whether mitigating circumstances exist, and what sanction if 
any is appropriate. CITBA suggested that where there are serious 
factual questions concerning whether the alleged breach actually 
occurred, a party may not be in a position to present the strongest 
possible case on mitigation and sanctions in the same response that 
addresses the alleged breach. Moreover, CITBA commented that where it 
can be established that the breach did not occur, it would be an 
unnecessary burden to require submission of comments on mitigation and 
sanctions. CITBA proposed that the single-step procedure should be 
available as an alternative, at the option of the accused party, to the 
existing procedure.
    CITBA also proposed that the Commission establish time limits for 
the phases of a breach investigation, paralleling existing Commerce 
procedures. CITBA commented that the two year period (following all 
appeals, remands, and subsequent appeals) allowed for commencement of a 
breach investigation may be too long in some cases, prejudicing a 
party's ability to mitigate harm and defend him- or herself. On the 
other hand, CITBA suggested that two years may be insufficient in cases 
of intentional breach, where discovery of the breach is difficult. 
CITBA suggested that the Commission should adopt time limits similar to 
those employed by Commerce, limiting the period for commencing a breach 
investigation to 30 days after the alleged violation occurred, or could 
have been discovered through the exercise of reasonable and ordinary 
care, as determined by the Commission.
    CITBA also suggested that the Commission adopt a time limit for 
issuance of a charging letter, as Commerce has done. Finally, CITBA 
proposed that it would be useful for the Commission to identify 
deadlines for the various stages of a breach investigation. CITBA 
suggested Commerce's procedures as examples for consideration.
    AMS&S expressed concern with the two year time limit, noting that 
appeals of Commission determinations can take several years to reach a 
final conclusion, during which time a party's memory of actions 
involving an alleged breach dims, making defense against a charge of 
alleged breach of an APO an onerous burden. AMS&S noted that the 
Commission's rules require return or destruction of material released 
under APO within 60 days of publication of a final determination, 
unless judicial review is commenced. If the determination is appealed, 
a judicial protective order (JPO) is usually entered, which may contain 
different provisions from the Commission's APO. AMS&S suggested that 
actions allowed under the JPO may be alleged to violate the APO. AMS&S 
noted that it may be argued that once a JPO issues, the Commission no 
longer has jurisdiction over the parties to consider and sanction 
breaches of the APO occurring during the appellate process.
    AMS&S also expressed concern over the one-step procedure 
investigation proposed in the rules. AMS&S suggested that this 
procedure could deny a party a reasonable opportunity to present views 
about whether the alleged breach actually occurred, requiring 
submission of potentially contradictory arguments concerning whether 
the breach occurred, mitigating circumstances, and appropriate 
sanctions, prior to a determination that there was a breach. AMS&S 
suggested that a two-step procedure addressing the questions of breach 
and sanctions separately would be preferable.
    S&S expressed concern over the proposed two year time limit for 
investigating breaches. S&S commented that such a long period is 
prejudicial to the accused party's ability to defend him- or herself, 
creates uncertainty, and is unnecessary to protect the confidentiality 
of information. S&S suggested that the Commission conform its practice 
to Commerce practice, as discussed above under CITBA's comments. 
Moreover, S&S took issue with the one-step inquiry, opining that the 
new procedure would jeopardize the accused person's defense, and 
proposed that the new procedure be made available as an option that the 
accused could choose.
    S&S also noted that the proposed language suggests that the 
Commission may investigate breaches occurring during the pendency of 
judicial review. S&S assumed this was unintentional, noting that JPOs 
generally cover BPI during the appellate process. S&S suggested that 
the Commission may wish to clarify that it does not view its authority 
as extending to sanctioning breaches of JPOs, or allow a period for 
comment on this issue.
    CITBA and S&S both suggested that the Commission address in a 
future notice and request for comments the agency's APO practice in 
general.
    In view of the comments received on the point, the Commission has 
determined not to institute the one-step process set out in the 
proposed rules. However, as it has in the past and as reflected in the 
amended version of the rule, the Commission may conclude a proceeding 
in one step if it finds that a breach has occurred but that under the 
circumstances no further investigation is warranted.
    The Commission is sympathetic to the concerns expressed by the 
commenters concerning the time limit for commencing investigations of 
alleged APO breaches. Accordingly, that deadline is shortened from the 
time limit set in the proposed rules. A breach investigation is to be 
commenced no later than sixty days after the later of the occurrence of 
the alleged breach (or the date on which the alleged breach could have 
been discovered through the exercise of reasonable and ordinary care) 
or the end of the underlying antidumping or countervailing duty 
investigation. If a breach is alleged to occur during a preliminary or 
final investigation, the time limit is sixty days after the end of that 
investigation. If a breach is alleged to occur after such an 
investigation, for example during remand proceedings, an investigation 
into the alleged breach would need to be commenced sixty days after the 
alleged breach occurred or could have been discovered.
    The deadline is intended to provide the Commission sufficient time 
to commence an investigation into an alleged breached while minimizing 
any harm to the defense a person might mount in a breach inquiry begun 
so long after the event that memories have dimmed. The time limit 
allows for the completion of the underlying investigation so that the 
Commission need not conduct both that investigation and a breach 
investigation at the same time, and allows an additional sixty days for 
the Commission to resolve any matters preliminary to the breach 
investigation, such as the issue of whether the information in question 
is business proprietary.
    The Commission finds that it would be neither appropriate nor 
necessary to establish time limits on the various phases of a breach 
investigation by rule. Specific time limits in the rules could restrict 
the Commission's ability to seek additional information concerning an 
alleged breach if deemed necessary. Moreover, the press of other 
Commission business may hamper compliance with such time limits, 
necessitating Commission action to extend the deadlines. However, it 
remains the Commission's intention to expeditiously process APO 
violation investigations.
    The Commission also finds that it would be inappropriate to state 
that in all instances the Commission will not investigate an alleged 
APO breach after a JPO has been entered. In some circumstances, the 
Commission may need to take action even though a JPO is in place.

Section 207.7 (f) and (g)

    Paragraphs (f)(2) and (g) of section 207.7 are amended to improve 
the procedure for requesting exemption from disclosure of business 
proprietary information under APO.
    CITBA generally agreed with the proposed procedures for exemption 
from disclosure under APO. CITBA expressed concern, however, that the 
proposed rule does not adequately explain how the procedure for seeking 
exemption from disclosure coordinates with time limits for filing 
briefs. CITBA proposed that the rule expressly require that exemption 
be sought sufficiently in advance that the request may be acted upon in 
time for the party to prepare and file its brief in a timely manner. 
CITBA also noted that the rule does not clarify how much time the 
Secretary may need to act on the request, merely that she will 
``promptly notify'' the requestor of the disposition of the request. As 
a cosmetic change, CITBA also proposed an alternative arrangement of 
section 207.7(g), with specific subsections dealing sequentially with 
the procedure. AMS&S and S&S supported the Commission's proposed 
procedure for requesting exemption from disclosure under APO and 
service.
    The Commission is sympathetic to CITBA's desire for clearer 
guidelines on timing of requests for exemption prior to filing and the 
Secretary's response time, but considers that a ``pre-clearance'' 
procedure would be unworkable in view of the already short time limits 
for filing most party submissions in title VII investigations. To 
shorten them even further by, in effect, requiring parties to file 
early in order to obtain exemption from disclosure under APO would in 
the Commission's view work a substantial hardship on the parties and 
limit their ability to fully present their arguments. A provision is 
being added to the final rules indicating that requests for exemption 
from disclosure under APO should be filed two business days prior to 
the deadline for filing the document in which the information is 
proposed to be included, although no strict requirement to that effect 
is imposed.
    The Commission is not imposing a strict time limit for the 
Secretary's decision on granting the request, but it is the 
Commission's policy that such requests take precedence over other, more 
routine matters, and should be expedited so as to be decided within two 
business days.
    The final version of section 207.7(g) largely reflects CITBA's 
suggested cosmetic changes. Paragraph (f)(1) is amended to make a 
technical correction to remove a discrepancy between section 207.7 and 
207.3, and indicates no change in Commission practice.

Section 207.22

    Section 207.22 is amended to require the filing of prehearing 
briefs four business days prior to the hearing. CITBA suggested that 
the clause ``The prehearing brief should present a party's case in 
brief'' sounds tautological, and that the word ``concisely'' replace 
the phrase ``in brief.'' The Commission has made that change in the 
final version of the rules. The Commission has also determined to 
require the filing of prehearing briefs only of interested parties who 
are parties to the investigation, i.e., those parties with standing to 
challenge Commission determinations in court. Other persons may but are 
not required to file prehearing statements.

Section 207.23(b)

    Section 207.23(b) was proposed to be amended to require the filing 
of witness statements two business days prior to the hearing. GDL&S 
expressed concern with the proposed change requiring, rather than 
permitting, filing of witness statements. GDL&S commented that, given 
the logistics of travel, and the need to prepare witness statements 
face to face, rather than by long-distance communication, this 
requirement will impose substantial hardships on foreign witnesses, 
particularly from the Far East. GDL&S suggested that the requirement 
will dissuade witnesses from testifying, will make participation much 
more costly, and will tend to diminish, rather than enhance, the 
quality of evidence presented. GDL&S urged the Commission to reconsider 
this proposed change. The Commission has determined to leave the 
existing rule on witness statements unchanged.

List of Subjects in 19 CFR Parts 201 and 207

    Administrative practice and procedure, investigations, imports.

    19 CFR Parts 201 and 207 are amended as follows:

PART 201--[AMENDED]

    1. The authority citation for part 201 continues to read as 
follows:

    Authority: Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335), 
and sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless 
otherwise noted.

    2. Paragraph (m) of section 201.13 is added to read as follows:


Sec. 201.13  Conduct of nonadjudicative hearings.

* * * * *
    (m) Closed sessions. Upon a request filed by a party to the 
investigation no later than seven (7) days prior to the date of the 
hearing (or three (3) days prior to the date of a conference conducted 
under Sec. 207.15 of this chapter) that identifies the subjects to be 
discussed, specifies the amount of time requested, and justifies the 
need for a closed session with respect to each subject to be discussed, 
the Commission (or the Director, as defined in Sec. 207.2(c) of this 
chapter, for a conference under Sec. 207.15 of this chapter) may close 
a portion of a hearing (or conference under section 207.15 of this 
chapter) held in any investigation in order to allow such party to 
address confidential business information, as defined in Sec. 201.6, 
during the course of its presentation. In addition, during each hearing 
held in an investigation conducted under section 202 of the Trade Act , 
as amended, or in an investigation under title VII of the Tariff Act as 
provided in Sec. 207.23 of this chapter, following the public 
presentation of the petitioner(s) and that of each panel of 
respondents, the Commission will, if it deems it appropriate, close the 
hearing in order to allow Commissioners to question parties and/or 
their representatives concerning matters involving confidential 
business information.

PART 207--[AMENDED]

    3. The authority citation for part 207 continues to read as 
follows:

    Authority: 19 U.S.C. 1303, 1335, 1671-1677k, and 2482, unless 
otherwise noted.

    4. Paragraphs (a)(3)(ii), (b)(10), (d), the heading for paragraph 
(e), (e)(1), (f)(1), (f)(2), and (g) of Sec. 207.7 are revised to read 
as follows:


Sec. 207.7  Limited disclosure of certain business proprietary 
information under administrative protection order.

* * * * *
    (a) * * *
    (3) Authorized applicant.
* * * * *
    (ii) In addition, an authorized applicant must not be involved in 
competitive decisionmaking for an interested party which is a party to 
the investigation. Involvement in ``competitive decisionmaking'' 
includes past, present, or likely future activities, associations, and 
relationships with an interested party which is a party to the 
investigation that involve the prospective authorized applicant's 
advise or participation in any of such party's decisions made in light 
of similar or corresponding information about a competitor (pricing, 
product design, etc.).
* * * * *
    (b) Administrative protection order.
* * * * *
    (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.
* * * * *
    (d) Commission responses to a breach of administrative protective 
order. A breach of an administrative protective order may subject an 
offender to:
    (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;
    (2) Referral to the United States Attorney;
    (3) In the case of an attorney, accountant, or other professional, 
referral to the ethics panel of the appropriate professional 
association;
    (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, denial of 
further access to business proprietary information in the current or 
any future investigations before the Commission, and issuance of a 
public or private letter of reprimand; and
    (5) Such other actions, including but not limited to, a warning 
letter, as the Commission determines to be appropriate.
* * * * *
    (e) Breach investigation procedure. (1) The Commission shall 
determine whether any person has violated an administrative protective 
order, and may impose sanctions or other actions in accordance with 
paragraph (d) of this section. At any time within sixty (60) days of 
the later of the date on which the alleged violation occurred or, as 
determined by the Commission, could have been discovered through the 
exercise of reasonable and ordinary care, or the completion of an 
investigation conducted under subpart B or C of this part, the 
Commission may commence an investigation of any breach of an 
administrative protective order alleged to have occurred at any time 
during the pendency of the investigation, including all appeals, 
remands, and subsequent appeals. 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 and that further 
investigation is warranted, 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.
* * * * *
    (f) Service. (1) Any party filing written submissions 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, except as provided in Sec. 207.3, 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 particular business proprietary 
information by filing a request for exemption from disclosure in 
accordance with paragraph (g) of this section. The Secretary shall 
promptly respond to the request. If a request is granted, the Secretary 
shall accept the information into the record. The party shall file 
three versions of the submission containing the information in 
accordance with paragraph (g) of this section, and serve the submission 
in accordance with the requirements of Sec. 207.3(b) and paragraph 
(f)(1) of this section, with the specific information as to which 
exemption from disclosure under administrative protective order has 
been granted redacted from the copies served. If a request is denied, 
the copy of the information lodged with the Secretary shall promptly be 
returned to the requester.
* * * * *
    (g) Exemption from disclosure. (1) In general. Any person may 
request exemption from the disclosure of business proprietary 
information under administrative protective order, whether the person 
desires to include such information in a petition filed under 
Sec. 207.10, or any other submission to the Commission during the 
course of an investigation. 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.
    (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. 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 
business proprietary information in question. One version shall contain 
all business proprietary information, bracketed in accordance with 
Sec. 207.3(c), with the specific information as to which exemption from 
disclosure was granted enclosed in double brackets. This version shall 
have the following warning marked on every page: ``BPI exempted from 
disclosure under APO enclosed in double brackets.'' The other two 
versions shall conform to and be filed in accordance with the 
requirements of Sec. 207.3, except that the specific information as to 
which exemption from disclosure was granted shall be redacted from 
those versions of 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.
    5. Section 207.22 is revised to read as follows:


Sec. 207.22  Prehearing brief.

    Each party who is an interested party shall submit to the 
Commission, no later than four (4) business days prior to the date of 
the hearings specified in the notice of investigation, a prehearing 
brief. Prehearing briefs shall be signed and shall include a table of 
contents. The prehearing brief should present a party's case concisely 
and shall, to the extent possible, refer to the record and include 
information and arguments which the party believes relevant to the 
subject matter of the Commission's determination under section 303, 
705(b) or 735(b) of the Act. Any person not an interested party may 
submit a brief written statement of information pertinent to the 
investigation within the time specified for filing of prehearing 
briefs.
    6. In Sec. 207.23, paragraphs (a) and (b) are revised and paragraph 
(d) is added to read as follows:


Sec. 207.23  Hearing.

    (a) In general. The Commission shall hold a hearing concerning an 
investigation before making a final determination under section 303, 
705(b) of 735(b) of the Act.
    (b) Procedures. Any hearing shall be conducted after notice 
published in the Federal Register. The hearing shall not be subject to 
the provisions of 5 U.S.C. chapter 5, subchapter II, or to section 702 
of that title. Each party shall limit its presentation at the hearing 
to a summary of the information and arguments contained in its 
prehearing brief, an analysis of the information and arguments 
contained in the prehearing briefs described in Sec. 207.22, and 
information not available at the time its prehearing brief was filed. 
Unless a portion of the hearing is closed, presentations at the hearing 
shall not include business proprietary information. Notwithstanding 
Sec. 201.13(f) of this chapter, in connection with its presentation a 
party may file witness testimony with the Secretary no later than three 
(3) business days before the hearing. In the case of testimony to be 
presented at a closed session held in response to a request under 
Sec. 207.23(a), confidential and non-confidential versions shall be 
filed in accordance with Sec. 207.3. Any person not a party may make a 
brief oral statement of information pertinent to the investigation.
* * * * *
    (d) Closed sessions. Upon a request filed by a party to the 
investigation no later than seven (7) days prior to the date of the 
hearing that identifies the subjects to be discussed, specifies the 
amount of time requested, and justifies the need for a closed session 
with respect to each subject to be discussed, the Commission may close 
a portion of a hearing to persons not authorized under Sec. 207.7 to 
have access to business proprietary information in order to allow such 
party to address business proprietary information during the course of 
its presentation. In addition, during each hearing held in an 
investigation conducted under section 303, 705(b) or 735(b) of the Act, 
following the public presentation of the petitioner(s) and that of each 
panel of respondents, the Commission will, if it deems it appropriate, 
close the hearing to persons not authorized under Sec. 207.7 to have 
access to business proprietary information in order to allow 
Commissioners to question parties and/or their representatives 
concerning matters involving business proprietary information.

    By order of the Commission.

    Issued: December 19, 1994.
Donna R. Koehnke,
Secretary.
[FR Doc. 94-31511 Filed 12-27-94; 8:45 am]
BILLING CODE 7020-02-M