[Federal Register Volume 63, Number 85 (Monday, May 4, 1998)]
[Rules and Regulations]
[Pages 24391-24415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11802]



[[Page 24391]]

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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Parts 351 and 354

[Docket No. 960123011-8040-02]
RIN 0625-AA43


Antidumping and Countervailing Duty Proceedings: Administrative 
Protective Order Procedures; Procedures for Imposing Sanctions for 
Violation of a Protective Order

AGENCY: International Trade Administration, Commerce.

ACTION: Final rule.

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SUMMARY: The Department of Commerce (``the Department'') is amending 
its regulations on administrative protective order (``APO'') procedures 
in antidumping and countervailing duty proceedings to simplify and 
streamline the APO administrative process and reduce the administrative 
burdens on the Department and trade practitioners. The Department is 
also amending the regulations to simplify the procedures for 
investigating alleged violations of APOs and the imposition of 
sanctions. These changes are made in response to and in cooperation 
with the trade practitioners that are subject to these rules.

EFFECTIVE DATE: The effective date of this final rule is June 3, 1998. 
This final rule will apply to all investigations initiated on the basis 
of petitions filed on or after June 3, 1998, and other segments of 
proceedings initiated after this date.

FOR FURTHER INFORMATION CONTACT: For further information contact Joan 
L. MacKenzie or Mark A. Barnett, Office of Chief Counsel for Import 
Administration, (202) 482-1310 or (202) 482-2866, respectively.

SUPPLEMENTARY INFORMATION:

General Background

APO Procedures

    On February 8, 1996, the Department published proposed rules 
governing procedures for providing access to business proprietary 
information submitted to the Department by other parties in U.S. 
antidumping (``AD'') and countervailing duty (``CVD'') proceedings. 
Proposed Rule and Request for Comment (Antidumping and Countervailing 
Duty Proceedings; Administrative Protective Order Procedures; 
Procedures for Imposing Sanctions for Violations of a Protective 
Order), 61 FR 4826 (``February Notice''). See also, Proposed Changes to 
Administrative Protective Order Procedures in Antidumping and 
Countervailing Duty Proceedings, APO Application Form and Standard APO, 
59 FR 51559 (October 12, 1994) (``October Notice'').
    The Department proposed these changes in APO procedures in 
consultation with trade practitioners, who are the ones most directly 
affected by these procedures. Specifically, Department staff consulted 
with representatives of the International Law Section of the District 
of Columbia Bar, the International Trade Committee of the Section of 
International Law and Practice of the American Bar Association, the ITC 
Trial Lawyers Association, and the Customs and International Trade Bar 
Association. As a result of the consultations, the Department proposed 
changes in the APO process to improve the process, to simplify and 
streamline the process for all concerned, including the Department, and 
at the same time to continue to ensure protection of business 
proprietary information from unauthorized disclosure.
    After analyzing and carefully considering all of the comments that 
the Department received in response to the February Notice and after 
further review of the provisions of the proposed rule, the Department 
is publishing final regulations. These regulations improve, simplify, 
and streamline the APO process significantly and, at the same time, 
protect business proprietary information from unauthorized disclosure.
Effective Date
    The new APO procedures, including the use of the revised 
application for APO, form ITA-367 (5.98), will become effective June 3, 
1998. They will apply to all investigations initiated on the basis of 
petitions filed on or after June 3, 1998, and other segments of 
proceedings initiated after this date. Segments of proceedings to which 
these regulations do not apply will continue to be governed by the 
regulations in effect on the date the petitions were filed or other 
segments were initiated, to the extent that those regulations were not 
invalidated by the URAA or replaced by the interim final regulations 
published on May 11, 1995 (60 FR 25130 (1995)) and Sec. 351.105 of the 
AD/CVD procedural regulations that the Department published separately 
on May 19, 1997 (62 FR 27296), (hereinafter referred to as the May 19 
Regulations). In these segments of proceedings, the Department will 
require that parties use the old APO application form ITA-367 (3.89) 
for all requests to amend their existing APOs. If all parties in these 
segments of proceedings mutually agree to be bound by the new APO 
regulations and procedures, the parties must file a joint agreement and 
new applications for APO.

APO Sanctions

    The Department is also amending its regulations concerning 
sanctions for violations of APOs. The regulations governing the 
imposition of sanctions for APO violations are set forth at 19 CFR Part 
354. In the nine years since Part 354 was introduced, the Department 
has investigated and resolved numerous allegations of violations of 
APOs. Most charges have been settled, and none has resulted in a 
hearing before a presiding official or a decision by the APO Sanctions 
Board. Experience also has proven that, even if an individual has 
technically violated the terms of an APO, it is not always appropriate 
to impose a sanction. Rather, a warning may be appropriate in many 
instances. The Department also has found that situations arise in which 
the investigation can be shortened without limiting procedural rights. 
Additionally, under current regulations, it is unduly cumbersome to 
withdraw charges when the Department determines that they are not 
warranted. Finally, the Department recognizes that an individual with 
prior violations deserves to have his or her record cleared after a 
period of time without further violations. Therefore, the Department is 
amending Part 354 of its regulations to articulate a standard for 
issuance of a warning of an APO violation and to address the other 
situations described above.
    The Department is amending the regulations to simplify the 
procedures for investigating alleged violations and the imposition of 
sanctions, establish criteria for abbreviating the investigation of an 
alleged violation, include private letters of reprimand among the 
sanctions available, and set a policy for determining when the 
Department issues warnings instead of sanctions. Further, the 
Department is revising the provisions dealing with settlement to make 
them consistent with practice. The Department also is simplifying the 
procedures for withdrawing charging letters. Finally, the amendments 
add a sunset provision that codifies existing practice regarding the 
rescission of charging letters.

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Explanation of Particular Provisions

APO Procedures
    The Department's AD regulations were contained in 19 CFR Part 353 
and its CVD regulations were contained in 19 CFR Part 355. Parts 353 
and 355 each contained separate provisions dealing with the treatment 
of business proprietary information and APO procedures. The Department 
consolidated the AD and CVD regulations and repealed existing Parts 353 
and 355. See Antidumping Duties; Countervailing Duties; Final rule, 62 
FR 27295 (May 19, 1997). We have drafted the regulations dealing with 
APO procedures in light of this consolidation. Accordingly, these 
regulations will be contained in 19 CFR Part 351, subpart C. More 
specifically, with the exception of the definitional provisions of 
Sec. 351.102, the APO procedures will be contained in 19 CFR 351.304, 
305, and 306. The procedures for imposing sanctions for violation of a 
protective order are contained in 19 CFR 354.
Definitions
    Section 351.102 is a definitional section, based on previous 19 CFR 
353.2 and 355.2. It was published separately with the May 19 
regulations. Insofar as APO procedures are concerned, we added 
definitions of two new terms, now contained in the administrative 
protective order. Because these definitions apply to APO procedures, we 
are discussing them here.
    The first term, applicant, is defined as an individual 
representative of an interested party that has applied for access to 
business proprietary information under an APO. The second term, 
``authorized applicant,'' is defined as an applicant that the Secretary 
has authorized to receive business proprietary information under an 
APO, and is a term borrowed from the practice of the U.S. International 
Trade Commission (``ITC'').
    One commenter noted that the definition of ``applicant'' contained 
in the Proposed AD/CVD Procedural Regulations was inconsistent with the 
description of that definition in the preamble to the February Notice. 
This commenter also suggested that a definition of ``representative'' 
be added to the regulations.
    We revised the definition of ``applicant'' to make it consistent 
with the description of that term provided above. The term 
``representative'' was defined in the model APO published with the 
February Notice. We have revised that definition to refer to an 
individual, enterprise or entity acting on behalf of an interested 
party.
Administrative Protective Order Unit and Central Records Unit
    Section 351.103 defines the responsibilities of the Central Records 
Unit and the Administrative Protective Order Unit, both of which play a 
role protecting business proprietary information. The APO Unit was 
established with the reorganization of the Department that became 
effective July 1, 1996. Under the reorganization, the APO function is 
consolidated under the Director for Policy and Analysis, and is managed 
by a Senior APO Specialist who leads the APO Unit. The Senior APO 
Specialist is responsible for directing the Department's handling of 
business proprietary information.
    The Administrative Protective Order Unit and the Dockets Center of 
the Central Records Unit have recently been relocated to shared space 
in room 1870. Because of the proximity of the two offices, business 
proprietary information released by the APO Unit to authorized 
representatives is conducted through the Dockets Center. Because the 
relocation of the Dockets Center occurred after the publication of the 
AD/CVD procedural regulations, we are taking this opportunity to amend 
Sec. 351.103 to reflect these changes. Pursuant to Presidential order, 
security has been increased in Federal office buildings and delivery 
couriers are no longer permitted access to the Herbert C. Hoover 
Building (HCHB). Consequently, Import Administration has created the 
Dockets Center in Room 1870. The Dockets Center is accessible directly 
from the 15th Street courier's entrance to HCHB. Prior to being allowed 
in the building at this entrance all packages are scanned by 
Departmental security personnel. APO materials are picked up at this 
entrance from the APO Unit.
Section 351.304 Establishing Business Proprietary Treatment of 
Information.
    Section 351.304 sets forth rules concerning the treatment of 
business proprietary information in general, and provides persons with 
the right to request that certain information be considered business 
proprietary or be exempt from disclosure under APO.
Customer Names
    One commenter noted that section 777(c)(1)(A) of the Tariff Act of 
1930, as amended, (``Act'') protects customer names from disclosure 
under APO in an investigation only until an order is published or the 
investigation is suspended or terminated, and suggested that the 
regulation should be revised to reflect this. We have not revised the 
regulation. The statute does not require the Department to disclose 
customer names under APO following publication of an order or following 
suspension or termination of the investigation. If the Department's 
final determination is challenged, parties may obtain access to 
customer names under the terms of a judicial protective order. Absent 
such litigation, we do not believe it necessary or appropriate to 
require parties to disclose additional information under protective 
order after an investigation has been completed, suspended or 
terminated.
Identification of Business Proprietary Information
    Paragraph (b) of Sec. 351.304 addresses the identification and 
marking of business proprietary information in submissions to the 
Department.
    One commenter argued that the Department should clarify how the 
requirement to mark business proprietary information applies to 
materials in exhibits such as printouts, drawings, photographs, 
excerpts from brochures and other similar materials. The commenter 
pointed out that such materials are not always clearly identified as 
business proprietary, leaving the recipient to refer to the public 
version to determine whether any particular data are in fact claimed to 
be confidential.
    The Department agrees that all business proprietary information 
should be marked in accordance with the regulations. This includes all 
verification exhibits. It is in the interest of all parties to prevent 
inadvertent APO violations that can occur when marking is incomplete or 
inaccurate. We recognize that marking printouts and voluminous exhibits 
presents challenges. Printouts may consist almost entirely of business 
proprietary information, with public information limited to certain 
headings or fields. In such cases, it may be easier for an authorized 
applicant to distinguish between public and proprietary information by 
reviewing the public version rather than searching for brackets in a 
document that contains nearly all business proprietary information. 
Moreover, because bracketing may be revised by a party within one day 
of the date of filing (see below), authorized applicants are encouraged 
to confirm their identification of public information by comparison to 
the public version source in order to avoid an inadvertent release of 
business proprietary information.
    If a party objects to the submitting person's claim for business 
proprietary

[[Page 24393]]

treatment, the objection must be submitted in writing. The APO Unit is 
the point of contact for examining and resolving the issue whether 
information that is claimed as proprietary meets the standards in 
Sec. 351.105 of the AD/CVD procedural regulations that the Department 
published separately on May 19, 1997.
Public Versions
    Paragraph (c) of Sec. 351.304 concerns the public version of a 
business proprietary submission, provides for a one-day lag rule (see 
also Sec. 351.303(c)(2)), and addresses corrections to errors in 
bracketing business proprietary information. We reiterate that the 
Secretary will enforce vigorously the requirement for public summaries, 
and will grant claims that summarization is impossible only in 
exceptional circumstances. To assist in ensuring consistent enforcement 
of the Department's requirements for public summarization of numerical 
data and narrative portions of submissions, the APO Unit is the point 
of contact for examining and resolving complaints about inadequate 
public summaries.
One-Day Lag Rule
    The one-day lag rule follows existing practice by permitting 
parties to file a public version of a document containing business 
proprietary information one business day after the due date of the 
business proprietary version of the document. This practice is known as 
the ``one-day lag'' rule. Under current practice, submitting persons 
may correct the bracketing of information in the business proprietary 
version up to the deadline for submission of the public version (i.e., 
they have one day in which to correct bracketing). The Department 
proposed to slightly modify the one-day lag rule to require a party to 
file the final business proprietary version of the document at the same 
time as the submitting party files the public version of the document. 
The specific filing requirements are contained in Sec. 351.303 of the 
AD/CVD Procedural Regulations that the Department published separately 
on May 19, 1997. Comments on this provision were addressed in those 
regulations.
    One commenter expressed concern regarding improper disclosure of 
APO protected information and the Department's statement that non-
bracketed information will be treated as public information once 
bracketing has become final. We believe, however, that the commenter 
misunderstood the Department's statement. The statement only pertains 
to a party's own business proprietary information contained in a 
document it has submitted. The Department will always take and require 
immediate corrective action when information subject to an APO has been 
improperly disclosed and discovered in a reasonable amount of time.
Summarization of Numerical Data
    One commenter argued that public summarization of numerical data 
should not be required, because the ITC does not require it. Other 
commenters requested that specific guidelines for summarization of 
numerical data be included in the regulation. Some commenters requested 
greater flexibility in ranging numbers that are very large or very 
small.
    As one commenter recognized, a public summary, which is addressed 
in paragraph (c)(1), is required by section 777(b)(1)(B) of the Act and 
Article 6.5.1 of the Agreement on Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994 (``AD Agreement''). Public 
summarization of numerical data is crucial to the ability of parties to 
participate in the Department's proceedings. Without adequate public 
summarization, interested parties without APO access will not be able 
to participate meaningfully in the Department's proceedings. The 
Department, therefore, will continue to require summarization of 
numerical data.
    While there may be some benefits to consistent treatment of 
business proprietary information between the Department and the ITC, 
there are differences in each agency's mission that justify individual 
practices. Summarization of company-specific numerical information at 
the ITC is more difficult because the information concerns a company's 
performance using ``macro'' numbers and projected data. Moreover, in 
most cases, the ITC provides aggregate data where such information 
would not reveal an individual company's business proprietary 
information. It is this aggregate data, which is often available to the 
public, which is most relevant to the ITC's analysis and 
determinations. Information in the Department's proceedings, on the 
other hand, is often transaction-specific, ``micro'' information. Such 
information would be difficult to aggregate across companies and such 
aggregate data would be of almost no relevance to the Department's 
analysis and the public's understanding of that analysis. Therefore, it 
is preferable to continue to require that such information be ranged or 
indexed.
    Omission of specific criteria for public summarization of numerical 
data previously contained in Secs. 353.32(b)(1) and 355.32(b)(1) was an 
oversight. We are including the criteria for adequate summarization in 
Sec. 351.304(c)(1) of these regulations. The Department has always 
allowed an exception to the public summarization requirement when it 
does not protect business proprietary information from disclosure, such 
as with very small or very large numbers. We will continue to permit 
such exceptions on a case-by-case basis in accordance with the 
requirements of Sec. 351.304(c)(1).
Summarization of Narrative Portions of Submissions
    One commenter argued that requiring a public summary of the 
narrative portion of a submission is a change in policy not required by 
the Uruguay Round Agreements Act (URAA) and is too burdensome. The 
commenter asserted that the proposed regulation will add hundreds of 
hours and thousands of dollars to the costs of participating in these 
cases. Finally, the commenter stated that the proposed regulation 
appears to create a presumption that all business proprietary 
information is public unless proven otherwise, which reverses agency 
practice designed to protect business proprietary information against 
disclosure.
    The commenter is mistaken that the Department's regulation 
constitutes a change in practice. The Department has consistently 
required a public summary of the narrative portion of a submission 
containing business proprietary information.
    Laws affecting disclosure of information by the federal government 
generally are pro-disclosure. The United States has the most 
transparent antidumping and countervailing duty procedures in the 
world. Protection of business proprietary information is a narrow 
exception to the requirement for disclosure and the preference for 
transparency. For these reasons, the regulations require parties to 
demonstrate that business proprietary information should be withheld 
from disclosure, rather than the reverse. There is a presumption that 
business proprietary information can be publicly summarized to permit 
meaningful participation by a party that does not have access to 
business proprietary information under APO.
Summarization of Business Proprietary Information of Other Parties
    Three commenters raised concerns whether Sec. 351.304(c)(1) 
requires authorized applicants to create public summaries of business 
proprietary information submitted by other parties.

[[Page 24394]]

It does not. The Department has never required authorized applicants to 
publicly summarize the business proprietary information of another 
party and the Department does not intend to change that practice. In 
fact, Sec. 351.304 (c)(1) states that a submitter should not create a 
public summary of business proprietary information of another person.
Nonconforming Submissions
    Paragraph (d) of Sec. 351.304 deals with nonconforming submissions, 
i.e., submissions that do not conform to the requirements of section 
777(b) of the Act and paragraphs (a), (b), and (c) of Sec. 351.304.
    One commenter expressed concern that this provision might be abused 
by parties making unwarranted claims of a clear and compelling need to 
withhold business proprietary information from disclosure under APO 
merely to delay release of that information and thereby imperil the 
ability of other parties to participate in the proceeding in a timely 
fashion. Although we appreciate the concerns of the commenter, we do 
not believe that revision of the regulation is necessary. In most 
cases, the Department has been able to make determinations as to the 
status of information in much less than 30 days, and we expect that to 
continue to be the case. As written, the regulation provides greater 
flexibility for those determinations which may require more time for 
decision.
    The Department does not believe that the regulation, as drafted, 
will lead to significant abuse. The Department's current experience has 
involved few situations of abuse. To the extent that baseless claims 
for non-release of information do occur, the Department retains the 
authority to deal with them expeditiously.
    Another commenter proposed that the Department amend this 
regulation to permit the Secretary to return any part of a submission 
that does not meet the requirements of the regulations. We do not 
agree. For the same reasons the Department revised the one-day lag rule 
to require a new complete submission of a document that required 
correction, we also will require a complete new submission of any 
document returned because parts of it are defective.
Section 351.305  Access to Business Proprietary Information
    Section 351.305 establishes procedures for obtaining business 
proprietary information under APO, including a new procedure based on 
the use of a single APO for each segment of a proceeding.
The Revised APO
    Paragraph (a) of Sec. 351.305 sets forth a new procedure in which 
the Secretary will place a single APO on the record for each segment of 
an AD or CVD proceeding, within two days after a petition is filed, or 
an investigation is self-initiated, or five days after the initiation 
of any other segment. (``Segment of the proceeding'' is defined in 
Sec. 351.102 as a portion of the proceeding that is reviewable under 
section 516A of the Act.) All authorized applicants will be subject to 
the terms of this single APO. This new procedure will streamline the 
APO process dramatically, and will expedite the issuance of APOs and 
the disclosure of information to authorized applicants. Commenters 
strongly endorsed this new procedure, and agree it will streamline the 
APO process and expedite the issuance of APOs and the disclosure of 
information to authorized applicants.
APO Requirements
    Paragraph (a) of Sec. 351.305 also sets forth the requirements that 
are to be included in the APO and to which all authorized applicants 
must adhere. The Department proposed to eliminate from the APO detailed 
internal procedures that firms were required to follow to protect APO 
information from unauthorized disclosure. In paragraph (a)(1), the 
Department proposed to permit each applicant to establish its own 
internal procedures. All commenters agreed with this proposal, and we 
have adopted it in these final regulations.
Notification of Change of Facts
    Paragraph (a)(2) of Sec. 351.305 requires an authorized applicant 
to notify the Secretary of any changes in the facts asserted by the 
authorized applicant in its APO application. Paragraph (a)(2) does not 
require certification of these facts. Paragraph 6 of the proposed APO, 
however, would have required the authorized applicant to provide, at 
the conclusion of a segment of the proceeding, upon the departure of an 
authorized applicant from a firm, or when an individual no longer will 
have access to APO information, a certification that attests to the 
individual's compliance with the terms under which such access is 
granted. Two commenters questioned the necessity for such individual 
certifications. They argued that the thrust of the Department's new 
rules is to permit firms to develop their own internal procedures to 
protect business proprietary information, rather than for the 
Department to ``micro-manage'' APO issues. Thus, they asserted, firms 
will have internal procedures to ensure that persons leaving a firm, 
for example, destroy or return any documents containing business 
proprietary information. They point out that under the procedure 
proposed by the Department, applicants already sign an APO application 
individually, and the additional certification is therefore 
superfluous. Moreover, commenters argued, the Court of International 
Trade's (CIT) judicial protective orders permit a single certification, 
and there is no reason to follow two different procedures for appellate 
and administrative proceedings.
    The Department agrees. Paragraph (a)(2) continues to require a 
party to notify the Department of any changes in the facts asserted by 
an authorized applicant in its application, but we have deleted the 
requirement for certification at the end of the proceeding segment in 
paragraph 6 of the APO. Authorized applicants are required to notify 
the Department of any possible violation of the APO; the additional 
certification is redundant. The Department presumes all authorized 
applicants are complying with the terms of the APO until we determine 
through an investigation under Part 354 that a violation of an APO has 
occurred. Thus we have retained the requirement that parties notify the 
Department and other parties of changes, but have removed from 
paragraph 6 of the APO the requirement that every individual certify 
its compliance with the regulations at the close of the person's 
participation under the APO.
Notification of Destruction of Business Proprietary Information
    Paragraph (a)(4), now renumbered as paragraph (a)(3), of 
Sec. 351.305 requires the destruction of business proprietary 
information when a party is no longer entitled to it, normally at the 
close of a segment of a proceeding. Paragraph 7 of the APO also 
required an individual certification from each authorized applicant 
that it complied with the terms of the APO. For the reasons stated 
above, we agree this certification is unnecessary. We presume that an 
authorized applicant will comply with the terms of the APO requiring 
destruction of business proprietary information at a designated time.
    We will continue to require, however, notification to the 
Department of destruction of business proprietary information. Parties 
will be able to keep certain business proprietary information for more 
than one segment of a proceeding, and discipline in tracking and 
destroying information is more

[[Page 24395]]

important than ever. Therefore the Department will continue to hold 
parties accountable for timely destruction of material when no longer 
authorized by the APO to have it.
    One commenter suggested that the failure to return or destroy APO 
material is a procedural issue and should not be viewed as constituting 
a violation of the APO if not satisfied. We disagree. Until business 
proprietary information is destroyed, there is a risk of disclosure. 
The destruction of business proprietary information material is 
important to prevent unauthorized disclosure. It is one of the few 
specific requirements in the regulations. While the failure to return 
or destroy may not result in actual disclosure of business proprietary 
information, and in certain circumstances may only result in a warning, 
it is clearly a violation of the regulations and the APO.
    The Department proposed that an authorized applicant be required to 
destroy business proprietary information that the applicant is not 
authorized to retain within a thirty-day time period after the 
expiration of the time for filing for a judicial or binational panel 
review of the last segment for which the authorized applicant may 
retain the information. Thirty days should cover most contingencies, 
but the Department will be willing to grant extensions for good cause 
shown. Commenters supported this proposal and we will incorporate it 
into each APO, which will set specific deadlines on a case-by-case 
basis.
Electronic Data
    Paragraph 3 of the APO places one restriction on the use of 
business proprietary information contained in electronic form; the 
information can not be accessible by a modem. We are restricting access 
to electronic information by modem, but not requiring any specific 
technical restrictions, instead leaving the method to be used to the 
individual authorized applicant. This proposal was supported by 
commenters. Commenters suggested a revision of the language of the 
paragraph to clarify this requirement, which we have incorporated into 
paragraph 3 of the APO.
Independent Contractors
    The definition of ``support staff'' contained in the APO permits 
the use of independent contractors to perform photocopying and other 
production tasks involving APO information, provided that the 
independent contractors perform their work on the premises of the 
authorized applicant (e.g., at the firm), and the independent 
contractors work under the supervision of an authorized applicant.
    Commenters requested a clarification that the Department also will 
allow parties to use employees or subcontracted individuals (e.g., 
courier services) to pick up or deliver APO information released by the 
Department, and to deliver APO information to other parties. One 
commenter also requested a clarification that ``independent 
contractors'' includes part-time employees. We agree that support staff 
and independent contractors can be used for all delivery functions and 
that ``independent contractors'' includes part-time employees.
    In order to guard against unauthorized disclosure, however, the 
Department will continue its current practice of releasing APO 
information only if the employee or independent contractor presents a 
picture ID and a letter of identification from the firm of the 
authorized applicant that authorizes the Department to release the APO 
information to that particular individual.
Remand Proceedings
    The Department proposed that the APO permit access to new business 
proprietary information submitted in the course of a remand during 
litigation involving the segment of the proceeding in which the initial 
APO was issued. Parties no longer will have to apply separately for 
access under an APO during a remand proceeding. Commenters supported 
this proposal. The APO issued in each proceeding will reflect this 
practice.
APO Applications
    Paragraph (b) of Sec. 351.305 deals with the APO application 
process itself, including permitting parties to use two independent 
representatives.
Multiple Authorized Applicants
    Under current practice, the Department generally allows only one 
representative of a party to have access to business proprietary 
information under an APO. In response to requests from parties to 
proceedings, the Department proposed that two independent 
representatives of a party be allowed APO access, with one 
representative being designated as the lead representative. We also 
proposed granting APOs separately to non-legal representatives, who 
otherwise qualify to receive an APO, only if they had a significant 
practice before the Department. The purpose of this proposal was to 
ensure that effective sanctions could be imposed to deter APO 
violations. The Department will consider requests that more than two 
independent representatives be designated as authorized applicants on a 
case-by-case basis.
    Commenters agreed with this proposal, and requested that the 
Department clarify that the lead authorized applicant will not be 
liable for APO infractions committed by a separately authorized 
applicant. We agree. Authorized applicants are responsible for 
violations committed by any person in the same firm, but not for 
violations committed by an individual at another entity that applied 
for APO access separately. The lead representative would not be 
responsible for APO violations committed by the separately authorized 
applicant.
Application for an APO
    Paragraph (b)(2) of Sec. 351.305 establishes a ``short form'' 
application that applicants can generate from their own word-processing 
equipment. An applicant must acknowledge that any discrepancies between 
the application and the Department's APO placed on the record will be 
interpreted in a manner consistent with the Department's APO. Parties 
agreed with this proposal and we have adopted it in paragraph (b)(2).
APO Application Coverage
    Paragraph (b)(2) of Sec. 351.305 also provides that an applicant 
must apply to receive all business proprietary information on the 
record of the particular segment of the proceeding in question. A party 
no longer may apply to receive only selected parties' business 
proprietary information. The purpose of this requirement is to 
eliminate the need for parties to prepare separate APO versions of 
submissions for each of the different parties involved in a proceeding 
and to reduce the number of APO violations that occur through the 
inadvertent service of a document containing business proprietary 
information to parties not authorized to receive it. In order to avoid 
forcing parties to receive submissions in which they have no interest, 
however, a party may waive service of business proprietary information 
it does not wish to have served on it by another party. Thus, for 
example, Respondent A may waive its right to be served with a copy of 
the business proprietary version of Respondent B's questionnaire 
response. Nonetheless, if Respondent A receives any of respondent B's 
proprietary information from any party by mistake, no APO violation 
will have occurred. Commenters generally supported the proposal, 
because it eases the burden on

[[Page 24396]]

submitters and reduces the likelihood of inadvertent APO violations.
    One commenter strongly objected to the proposal as inconsistent 
with section 777 of the Act and burdensome on respondents. The 
commenter asserted that substitution of a waiver procedure for party-
specific submissions is inadequate because respondents are nonetheless 
required to accept submissions by petitioners that contain the business 
proprietary information of several parties, including business 
proprietary information that the respondents may have had no reason to 
request. It asserted that by requiring respondents' representatives to 
accept from petitioners' representatives documents containing multi-
party business proprietary information, the Department is unnecessarily 
shifting the burden and responsibility of complying with APO procedures 
from petitioners to respondents. Furthermore, where counsel is served a 
business proprietary document and then redacts only certain portions 
designated confidential by the filing party before transmitting the 
document to his client, there is no check on whether a proper redaction 
has been made. Neither the Department nor other parties have access to, 
or even knowledge of, the specially redacted version, and this 
procedure will heighten the risk of inadvertent disclosure of business 
proprietary information. Instead, the commenter argues, if the public 
summaries prepared by parties meet Commerce guidelines, the information 
contained in any public version of a filed document should be 
sufficient to inform a party already knowledgeable of the proprietary 
data represented by the public summary.
    The Department recognizes that these rules place a new burden on a 
representative to ensure that when it receives a submission with 
business proprietary information from multiple parties, it takes steps 
to ensure no business proprietary information of another party is 
disclosed to its client. Each authorized applicant has pledged to do 
this when he or she signs the application for access to business 
proprietary information under an APO. The rules mitigate this 
additional burden by requiring parties to clearly identify the person 
to whom each item of business proprietary information pertains. 
Although adequate public summaries are helpful, they are not a 
substitute for a full discussion of a party's own business proprietary 
information. Public summaries serve to assist a party's participation 
where other parties' business proprietary information is involved.
    Nothing in the statute prohibits these procedures. Section 777 of 
the Act requires the Department to ``make all business proprietary 
information presented to, or obtained by it, during a proceeding * * * 
available to interested parties who are parties to the proceeding under 
a protective order * * *.'' On balance, we believe the procedures 
adopted will spread the burden for protecting business proprietary 
information and reduce inadvertent disclosure of business proprietary 
information.
Deadline for Application for APO Access
    Paragraph (b)(3) of Sec. 351.305 concerns the deadline for applying 
for access to business proprietary information under APO. In deciding 
the question of APO application deadlines, the Department balances the 
need to provide maximum access by parties to APO information with the 
need to minimize the burden on the Department in processing APO 
applications, as well as the burden on parties and the Department that 
have to serve late applicants with APO information placed on the record 
before a late APO is granted. We proposed in paragraph (b)(3) to 
encourage parties to submit APO applications before the first 
questionnaire response is filed, but to permit parties to submit 
applications up to the date on which case briefs are due.
    Two commenters requested that the Department have no deadline for 
APO applications. They did not provide any reason why a representative 
would need to have access to the entire record after the time case 
briefs are filed. Under Sec. 351.309(b), which was published separately 
with the May 19 regulations, written argument will not be accepted 
after case or rebuttal briefs are filed unless requested by the 
Secretary. A party can always provide a representative with the party's 
own data, and represent the party before the Department during 
disclosure of that party's calculations. Providing a new representative 
with a record after the close of comments would be unduly burdensome 
for the Department staff which has extremely tight deadlines for 
issuing the final determination. A representative can obtain the entire 
record under judicial protective order during litigation if necessary. 
Therefore, we have incorporated the proposed deadline, the day case 
briefs are due, into the regulations.
    We also have taken into account the burden imposed on parties by 
APO applications that are filed after major submissions have been made 
by other parties to the proceeding. Under current rules, parties have 
only two days in which to serve an authorized applicant that obtained 
its APO late in the proceeding with APO information that already has 
been placed on the record. Under the deadline set forth in paragraph 
(b)(3), the burden on parties may increase. We therefore proposed that 
parties have five days in which to serve late APO applicants. In 
addition, we required that late applicants be required to pay the costs 
associated with the additional production and service of business 
proprietary submissions that were served on other parties earlier in 
the proceeding. Commenters supported these proposals and they are 
incorporated into Sec. 351.301, which was published separately.
    The Department reemphasizes that it will not allow an APO 
application filed later in the proceeding to serve as the basis for 
extending any administrative deadline, such as a briefing or hearing 
schedule.
Approval of the APO Application and the APO Service List
    Paragraph (c) of Sec. 351.305 deals with the approval of an APO 
application. The Department proposed to approve an application within 
two days of its receipt in an investigation and within five days in 
other AD and CVD proceedings, unless there is a question concerning the 
eligibility of an applicant to receive access under APO. In that case, 
the Secretary will decide whether to approve the application within 30 
days of receipt of the application. We amended the regulation to 
provide for a single five-day deadline to provide parties a reasonable 
time to comment on applications in all instances.
    Commenters generally supported the Department's proposal because it 
will facilitate the timely completion of investigations and 
administrative reviews by providing expedited access to business 
proprietary information to all parties to a proceeding. They suggested 
that the Department's regulations also indicate that similarly 
expedited treatment will be provided to applications for amendments to 
APOs. The Department considers an application for an amendment to be 
subject to the same procedures as the original application.
    Some commenters expressed concern that approving APO applications 
so quickly may create problems. In many cases, the APO application will 
be served by mail on other interested parties, and commenters were 
concerned that the Department could approve the application before the

[[Page 24397]]

parties have an opportunity to comment on it. When the APO material is 
already in the hands of an approved applicant who has filed for access 
for additional individuals, commenters asserted it is imperative that 
parties be informed of the existence of the amended application, and be 
given time to react, before APO material is released to any additional 
individuals. The problem is of special concern to commenters if the 
application seeks to add in-house counsel to the APO.
    Although the Department agrees that the concerns raised by these 
commenters have merit, we must balance these concerns with the need of 
applicants to receive APO material expeditiously. We note that the 
Department rarely receives objections to applications to amend APOs. 
However, in recognition of the concerns raised, we intend to approve 
applications to amend the Department's APO service list to include an 
additional authorized applicant at the end of the five-day period. If a 
representative wishes to have its amendment approved before the five-
day deadline, it should submit its application with a statement that 
all other parties to the proceeding have consented to the application.
    Commenters proposed that if the APO applicant needs immediate 
access, service on the other parties could be made by hand delivery or 
overnight mail, by facsimile, or by E-mail. Alternatively, the 
applicant could file the application as a ``consent motion''. If there 
is no need for immediate access, commenters proposed that parties be 
permitted to serve by mail and that Department approval be held for 
five days to ensure that the other parties have had an opportunity to 
respond. Commenters also proposed that the regulations also should 
state that objections to applications must be filed within two days of 
receipt of the application and served by hand on the applicant.
    One commenter, on the other hand, was concerned that parties to a 
case should not be able to delay release of proprietary documents 
merely by the objection, on whatever grounds, to the eligibility of an 
applicant to obtain information. Rather, the commenter proposed that 
the Department enunciate certain grounds that might serve as the proper 
basis for an objection, such as affiliation with the party in question, 
prior violations of protective orders or other ethical rules, or a 
potential conflict of interest that exists based on work done either 
within the government or at another firm involving the same or a 
similar matter. Commenters did not want parties to have the opportunity 
to delay approval of applications by minor objections, such as an 
objection to the number of applicants.
    The Department recognizes that the current regulations permit a 
party to hand-serve an APO application (or an application for an 
amendment to the APO service list) on the Department, while serving the 
parties by mail. The Department could approve an application before 
parties even received notice that the application had been filed. We 
are therefore revising Sec. 351.305(b)(2) to require parties to serve 
an APO application (including applications for amendments) on the 
Department and on the parties in the same manner, whether by hand or by 
mail. We are also extending the deadline in Sec. 351.305(c) for 
approving an APO application (including an application to amend the APO 
service list) to five days from two for all segments of proceedings. 
These procedures should provide expedited approval of APO access while 
preserving the rights of parties to comment on APO applications. 
Although the Department may approve an APO application on or before the 
five-day deadline, a party objecting to an APO application may elect 
not to serve its business proprietary information on the applicant to 
which it is objecting until the Department has addressed the objection 
and has made a decision whether to grant the applicant access to the 
objecting party's proprietary information.
    There are few bases on which a party can legitimately object to 
granting an APO so long as the applicant meets the conditions 
established in the APO application and APO. An objection based on the 
number of applicants would generally be considered frivolous; the 
Department does not interfere with a party's choice of representation 
or staffing. The only area where Import Administration has the 
authority to deny an individual the right to practice before it 
involves a finding, pursuant to our very detailed APO violation 
regulations, that a party has violated a protective order and that the 
violation warrants the extreme sanction of a ban from practice before 
Import Administration. An allegation in this area would require a 
detailed investigation. The restriction on practice before the 
Department because of an APO violation would be imposed through the APO 
violation proceeding, not through an objection to an APO application.
    Import Administration does not have authority to address the post-
employment restrictions contained in 18 U.S.C. 207. The authority to 
interpret post-employment restriction resides with the Assistant 
General Counsel for Administration at the Department of Commerce. Nor 
does the Department have the authority to advise on the application of 
state professional conduct rules to a party's practice before the 
Department. Any allegations of violations of the rules of a particular 
bar association must be raised with that organization.
Alternative Methods of APO Approval
    In the October Notice, several commenters suggested alternative 
methods of approving APOs, such as the creation of a pre-approved 
roster of members of a representative's firm, or permitting a lead 
signatory in a firm to grant access to the other professionals within 
the firm. The Department did not adopt either alternative because there 
may be facts peculiar to a particular AD or CVD proceeding or a segment 
of a proceeding that render an otherwise eligible applicant ineligible, 
and the roster approach would preclude a party from raising legitimate 
objections to the approval of an APO application. Likewise, the lead 
signatory approach would preclude parties from exercising their right 
to object, for good cause, to the disclosure of APO information to a 
particular individual.
    Two commenters continued to support the roster system. One pointed 
out that such a procedure would still allow Commerce to review the 
individual eligibility of each applicant and would allow far greater 
flexibility on the part of the participating firm. These commenters did 
not address the points raised by the Department in opposing the 
proposal, such as notice and certainty. As noted above, commenters 
expressed concern that they have an advance opportunity to comment on 
an APO application before access is granted. They were concerned that 
the Department might approve an APO application before parties had had 
a chance to review it because of the short two-day deadline the 
Department proposed for approving an application. We are therefore not 
adopting either alternative method of approving APO applications. The 
maximum five-day deadline for approving an application should enable 
parties to add representatives without undue delay.
Department Notification of APO Service List
    If an application is approved, the Secretary will include the name 
of the authorized applicant on an APO service list that the Department 
will maintain for each segment of a proceeding. Paragraph (c) of 
Sec. 351.305 provides that

[[Page 24398]]

the Secretary will use the most expeditious means available to provide 
parties with the APO service list on the day the list is issued or 
amended.
    Commenters generally supported the proposal. While they supported a 
flexible approach with respect to promulgating and updating the APO 
service list, they also expressed concern with the lack of specificity 
as to the form of notice to anticipate. Commenters were particularly 
concerned with the use of the Internet to the extent the Department is 
contemplating reliance on electronic mail, based on the uncertainty of 
the timely receipt of information (particularly where the parties are 
out of the office) or even whether the information would be received at 
all. To the extent the Department elects to rely on any Internet or e-
mail notification, commenters urged the Department to also send a copy 
of the notification by mail to the parties to ensure that actual 
notification was received.
    Other commenters stated that the preferred method is by facsimile. 
They stated that most businesses, including law firms practicing before 
the Department, have procedures to ensure that incoming facsimiles 
rapidly come to the attention of the indicated recipient. Commenters 
noted that these procedures are not necessarily in place with respect 
to the Internet and transmission by mail involves at least two days of 
delay.
    At this time, the Department will fax every change in the APO 
service list directly to each party on the service list for each 
proceeding. In addition, until the Department is assured that parties 
are routinely receiving notification of the APO service list by fax, 
the Department will mail hard copies of the service to the lead 
applicant. This will provide certainty and consistency necessary to 
effectively monitor APO service lists. APO service lists will be 
available to the public on Import Administration's home page on the 
Internet as a public service. The Department will adapt these 
procedures to advances in technology adopted by the trade bar in the 
future to ensure it provides notice as efficiently as possible.
Section 351.306 Use of Business Proprietary Information.
    Section 351.306 sets forth rules concerning the use of business 
proprietary information.
Use of Business Proprietary Information by the Secretary
    Paragraph (a) is based on existing Secs. 353.32(f) and 355.32(f). 
One change is the reference in paragraph (a)(4) to the disclosure of 
information to the U.S. Trade Representative under 19 U.S.C. 3571(i). 
Section 3571(i) (section 281(i) of the URAA) deals with the enforcement 
of U.S. rights under the World Trade Organization Agreement on 
Subsidies and Countervailing Measures. Also, although the regulation 
itself is little changed, we note that the URAA amended section 
777(b)(1)(A)(i) of the Act to clarify that the Department may use 
business proprietary information for the duration of an entire 
proceeding (from initiation to termination or revocation), as opposed 
to merely the particular segment of a proceeding for which information 
was submitted.
Use of Business Proprietary Information by Parties
    Section 777 of the Act permits the Department to use business 
proprietary information for the duration of an entire proceeding, from 
initiation to termination or revocation. Under the current regulations, 
the Department limits the record of a segment of a proceeding to 
information submitted during that particular segment of the proceeding. 
19 CFR 353.34(a). The Department limits the use of business proprietary 
information by representatives of parties to the segment of the 
proceeding in which the information was submitted. 19 CFR 
353.34(b)(3)(ii). Although the Department may have access to business 
proprietary information from another segment of the proceeding, the 
Department may not base a decision on business proprietary information 
that is not on the record of the particular segment of the proceeding.
    The URAA identifies three specific instances in which the 
Department would be expected to use information from different segments 
of proceedings or different proceedings: (1) Information from prior 
segments may be used in a sunset or changed circumstances review of the 
same proceeding (section 777(b)(1) of the Act); (2) business 
proprietary information from a sunset or changed circumstances review 
resulting in revocation may be used in an investigation on the same 
merchandise from the same country initiated within two years of 
revocation (section 777(b)(3) of the Act); and (3) information from a 
terminated investigation may be used in a new investigation on the 
subject merchandise from the same and another country within three 
months of termination of the prior investigation (sections 704 and 734 
of the Act).
    Paragraph (b) of Sec. 351.306 deals with the use of business 
proprietary information by parties from one segment of a proceeding to 
another. In the February notice, the Department proposed to permit 
parties to retain business proprietary information released under APO 
for two segments of the proceeding subsequent to that in which the 
information was placed on the record. Paragraph (b) provided that 
normally an authorized applicant may use such information only in the 
particular segment of the proceeding in which the information was 
obtained. An authorized applicant could, we proposed, place business 
proprietary information received in one segment of a proceeding on the 
record of either of two subsequent consecutive segments (generally 
administrative reviews under section 751(a)) if the information is 
relevant to an issue in the subsequent segments.
    We have modified this paragraph to give the Department greater 
flexibility in determining how business proprietary information may be 
used. Our intention at this time is to allow an authorized applicant to 
retain business proprietary information obtained in one segment of a 
proceeding for two subsequent consecutive administrative reviews and to 
use such business proprietary information in those administrative 
reviews or other segments of the proceeding initiated during that time. 
This use of business proprietary information will be authorized by the 
terms of the APOs.
    Four commenters wanted to expand the policy by having essentially 
unlimited access to proprietary information for the entire duration of 
the proceeding and, in some cases, even across proceedings. These 
commenters suggested that any changes should be applied to current 
APOs, as well as future APOs. They argued that such broad ability to 
use business proprietary information was consistent with the statute 
and would best enable them to identify inconsistencies in submissions 
from one segment of a proceeding to another.
    Four commenters supported the proposed policy with certain 
restrictions. These commenters urged the Department to prohibit 
wholesale incorporation of business proprietary information from 
another segment of the proceeding and, instead, require that any 
business proprietary information submitted from another segment of the 
proceeding be relevant to the segment in which it is submitted. 
Additionally, some of these commenters indicated that a shorter period 
of time (one

[[Page 24399]]

segment) would be sufficient to achieve the Department's goals.
    Four commenters strongly opposed any change to current policy. They 
argued that the limited changes to the statute cannot justify the 
significant changes proposed in the regulations. This group argued that 
statutory requirements and prior CIT decisions regarding the record for 
review effectively prohibit the changes proposed by the Department. 
This group also cited concerns that the broader ability to retain and 
use business proprietary information would increase the likelihood of 
disclosure of that information and thereby discourage parties from 
participating in proceedings before the Department. The group contended 
that these changes will also impose additional burdens on parties (to 
monitor the use of their business proprietary information in subsequent 
segments and to whom their business proprietary information is 
released, and to maintain the ability to justify all differences in 
their reported information from one segment to the next). The group 
contended that this practice would also increase burdens on the 
Department to document and verify the bases for any differences across 
segments of proceedings.
    We have not broadened the proposal to permit unlimited use of 
business proprietary information across all segments of a proceeding, 
or across all proceedings other than those specified in the statute. 
There is no legal support for the request to utilize business 
proprietary information across proceedings.
    Nor do we agree with commenters totally opposing use of business 
proprietary information in more than one segment. The statute and CIT 
precedent do not prohibit the proposed changes. The proposed changes 
would provide for inclusion of the information from another segment on 
the record of the segment in question. The proposed changes were not 
based on statutory changes made by the URAA, but, rather, rely on 
authority which the Department has always possessed. We agree that 
these changes will create some additional burdens on all parties to 
monitor subsequent segments of proceedings to avoid release of their 
business proprietary information to a party to whom they object. These 
are rare occurrences, and we have attempted to minimize this burden 
and, thereby, minimize the likelihood that these changes will cause 
respondents to refuse to participate in the Department's proceedings 
due to concerns about their business proprietary information. Any 
additional burden on the Department will be minimized by the 
Department's ability to reject submissions of irrelevant business 
proprietary information from other segments.
    We agree that wholesale incorporation of business proprietary 
information from prior segments should be rejected unless absolutely 
necessary. We also agree that the Department should reject business 
proprietary information from another segment which is not relevant to 
the ongoing segment. Such decisions, however, may be difficult to make 
and may present additional bases for appeal to the CIT. Therefore, the 
Department does not intend to make a decision on relevancy every time a 
party submits information from a prior segment into the current 
segment, but it reserves the right to do so in appropriate 
circumstances. At the same time, in order to avoid imposing undue 
burdens on the Department, we intend to consider such information only 
to the extent that is relevant to issues raised by interested parties 
or that the Department otherwise deems appropriate.
    The Department expects that there will be a multitude of practical 
problems that will have to be worked out over time and with experience 
under these new procedures. Initially we will permit parties to retain 
business proprietary information for two additional segments (generally 
administrative reviews) after the segment in which the business 
proprietary information was submitted. This is a reasonable compromise 
between the long-held desires of petitioners to be able to address 
perceived inconsistencies between segments, and respondents' concerns 
that their business proprietary information not be distributed among 
representatives and across segments for indeterminate periods. Once 
business proprietary information is placed on the record of a 
subsequent segment of the proceeding, it remains a permanent addition 
to the later record, unless the Department rejects the information.
    The Department believes that this new practice normally will be 
used to move business proprietary information from an investigation or 
administrative review to two subsequent consecutive administrative 
reviews. The Department also intends to authorize the use of business 
proprietary information submitted in an investigation or administrative 
review in other segments, such as scope proceedings or changed 
circumstances reviews, initiated during those two administrative 
reviews. If the Department determines, as it gains experience, that it 
is appropriate to modify this practice, it will do so by changing the 
terms of the APOs.
Identifying Parties Submitting Business Proprietary Information
    Paragraph (c) of Sec. 351.306 addresses identification of 
submitters of business proprietary information in submissions 
containing business proprietary information from multiple persons. The 
Department is requiring that APO applicants be required to request 
access to all business proprietary information submitted in a 
particular segment of a proceeding. In addition, we proposed that in 
the case of submissions, such as briefs, that include business 
proprietary information of different parties, the submission must 
identify each piece of business proprietary information included and 
the party to which the information pertains. (For example, Information 
Item #1 came from Respondent A, Information Item #2 came from 
Respondent B, etc.) The purpose of this proposal is to enable parties 
to submit a single business proprietary version of a submission that 
may be served on all parties represented by authorized applicants, 
instead of forcing parties to submit and serve different APO versions 
for each of the parties involved in a proceeding. In the case of a 
submission served on a party not represented by an authorized applicant 
(a relatively rare event), the submitter still would have to prepare 
and serve a separate submission containing only that party's business 
proprietary information.
    Three commenters supported this proposal. They agree it will reduce 
the possibility of APO violations when documents contain business 
proprietary information provided by more than one party. Commenters 
further suggested that, when all business proprietary information in a 
submission is obtained from a single party, the Department's 
regulations permit the submitting party to identify the original 
submitter of the business proprietary information only once, on the 
title page of the submission. We agree and have incorporated this into 
Sec. 351.306(c).
    Commenters also suggested that the Department should clarify the 
proposed rule by stating that only business proprietary information of 
another party needs to be specifically identified by source. The 
commenter proposed that any business proprietary information that is 
bracketed in the submission should be assumed to be business 
proprietary information belonging to the party submitting the document 
unless otherwise identified as business proprietary information of 
another party. The commenter pointed out that

[[Page 24400]]

without this clarification, submissions to the Department would become 
cluttered with notations as to the original submitter of the business 
proprietary information and it may become very difficult to read the 
submission. We agree, and have incorporated this suggestion into 
Sec. 351.306(c) of the regulations.
    One commenter urged the Department to clarify what is meant by the 
term ``identify contiguously with each item'' so that parties can adapt 
their procedures accordingly. The commenter noted that particularly 
troublesome would be documents containing multi-party information on a 
single line. The commenter requested that the Department should clarify 
whether the identifying markings are also required in public versions.
    The term ``contiguous'' was used to require identification closely 
enough with the item of business proprietary information so a party 
could clearly and quickly identify the original submitter of the 
business proprietary information. We do not want to be so specific that 
parties lose flexibility to respond to different situations. Documents 
can vary, and readability must not be sacrificed. In some situations, a 
notation next to the item of business proprietary will best serve 
everyone's interests. In a more complicated document, footnotes might 
be better. Since the public version of a submission should be identical 
with the business proprietary version except for the deletion of the 
proprietary information, the public submission will contain the 
identity of the original submitter of the proprietary information.
    Some commenters objected to the Department's proposed exception 
(Sec. 351.306(c)(2)) to the single-version business proprietary 
information document rule where a party does not have a representative. 
They argued that it undermined the benefits gained from not having to 
file respondent-specific submissions and that adequate public summaries 
would be adequate.
    The Department believes that this requirement is necessary. A party 
needs disclosure of another party's arguments against it to adequately 
defend itself. To fail to do so would not provide sufficient 
transparency to the proceeding.
    Concern was expressed regarding the potential mismarking of 
business proprietary information in a document, and the reliance 
thereafter on the information mismarked by another party. The commenter 
urged that the latter party's reliance on the mismarked information 
should not constitute a breach of the protective order. Another 
commenter took the opposite view. It suggested that if a party 
mistakenly indicates the wrong original submitter of business 
proprietary information in a submission, the party should only be 
required to correct the mistake, and the mistake should not constitute 
an APO violation in and of itself. The commenter further argued, 
however, that if, as a result of a mistake, a party were to disclose 
business proprietary information to another party not authorized to 
receive it, that disclosure would constitute an APO violation under the 
existing APO rules.
    Only the party creating the submission from multiple parties' 
business proprietary information knows with certainty the person that 
originally submitted the business proprietary information. Therefore 
the submitter must be responsible for the accuracy of the labeling. 
This is the purpose of the proposal. Unless an authorized applicant 
knows that an identification is incorrect, he or she should be entitled 
to rely on the identification. Otherwise the requirement serves no 
purpose. An unauthorized disclosure resulting from inaccurate labeling 
that leads to an APO violation will be attributed to the person 
labeling the original submitter of the business proprietary 
information.
    Another commenter opposed the proposal altogether, arguing that the 
proposal is an attempt to shift costs and responsibility from 
petitioner to respondent, causing respondent to lose time reviewing 
petitioner's case brief in the five days that they have to prepare 
rebuttal briefs under proposed Sec. 351.309(d). The commenter argued 
that while the number of inadvertent APO violations will decrease for 
petitioner's counsel, they will increase for respondent's counsel, 
because respondent's counsel must now make sure petitioner's documents 
do not include APO material that should not be released.
    These proposed procedures formalize what has been the Department's 
practice since 1992. Moreover, we believe that these proposals balance 
the different interests of petitioners and respondents. Although there 
are risks of inadvertent APO violations associated with any option, we 
believe that the fact that all authorized applicants will have access 
to the business proprietary information of all parties (whether or not 
service is waived) should reduce significantly the number of 
inadvertent disclosures. In this regard, the inadvertent service on an 
authorized applicant of a submission containing information of a party 
for which the applicant has waived service would not constitute an APO 
violation.

Administrative Protective Order Sanction Procedures

    Five parties commented on the proposed amendments to the APO 
sanction procedures. All commenters supported the proposed changes. 
Upon further reflection, the Department is amending its regulations 
consistent with the proposed regulations. As explained below, the 
Department also is making clerical revisions to use terms 
``administrative protective order'' and ``business proprietary 
information'' consistently throughout this part, and to conform the 
regulations to changes made in the organization of the Department on 
July 1, 1996.
Section 354.2 Definitions.
    The definition section is revised to be consistent with the 
definitions contained in the Department's proposed antidumping and 
countervailing procedural regulations at 19 CFR 351.102. The 
definitions of the terms ``administrative protective order'', 
``Secretary'', ``segment of the proceeding'', and ``Senior APO 
Specialist'' are added to Part 354 in Sec. 354.2.
    The definition of ``director'' is revised to reflect the 
reorganization of the Department that became effective July 1, 1996. 
Under the reorganization, the APO function is consolidated under the 
Director for Policy and Analysis, and is managed by a Senior APO 
Specialist. The Senior APO Specialist is responsible for directing the 
Department's handling of business proprietary information. The Senior 
APO Specialist assists with investigations of alleged APO violations, 
which streamlines the APO violation investigation process. A definition 
of ``Senior APO Specialist'' is added in Sec. 354.2, and the definition 
of ``director'' is revised to include the Senior APO Specialist. The 
definition of director is also amended to conform the regulation to the 
changes in office director positions made in the July 1, 1996 
reorganization.
Section 354.5 Report of violation and investigation.
    Paragraph (a)(1) is amended to require that all allegations of APO 
violations be reported to either the Senior APO Specialist or the 
Office of Chief Counsel for the Department. Under the current practice, 
alleged violations are reported to the APO specialist in the Office of 
Investigations or Office of Compliance, depending on where the alleged 
violation occurred. The amendment conforms the regulation to the July 
1, 1996 reorganization of the Department.

[[Page 24401]]

    Paragraphs (d) (7) and (8) are combined and revised to reflect 
changes in the Act and Department practice regarding the use of 
business proprietary information in segments of proceedings other than 
the one in which the information was originally submitted. These 
changes are discussed above. The Department's procedural regulations 
will now allow use of business proprietary information in more than one 
segment of a proceeding or another proceeding in limited situations. 
The segments of proceedings in which business proprietary information 
may be used will be contained in the administrative protective order. 
Paragraphs (d) (7) and (8) are combined and revised to reflect these 
changes.

Classification

E.O. 12866

    This rule has been determined to be not significant for purposes of 
Executive Order 12866.

Paperwork Reduction Act

    This rule does not contain a collection of information for purposes 
of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et 
seq.).

Regulatory Flexibility Act

    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce has certified to the Chief Counsel for Advocacy 
of the Small Business Administration that these amendments would not 
have a significant economic impact on a substantial number of small 
business entities because the rule that they would amend does not have 
such an impact and, furthermore, the amendments would tend to simplify 
the procedures pertaining to administration of APO sanctions. The 
Deputy Under Secretary for International Trade is responsible for 
regulations governing sanctions for violations of APOs. The Assistant 
Secretary for Import Administration is responsible for the regulations 
governing issuance and use of APOs.

List of Subjects in 19 CFR Parts 351 and 354

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

    Dated: April 29, 1998.
Timothy J. Hauser,
Deputy Under Secretary for International Trade.
    Dated: April 29, 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
    For the reasons stated, 19 CFR chapter III is amended as follows:

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

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

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

    2. Section 351.103 is revised as follows:


Sec. 351.103  Central Records Unit and Administrative Protective Order 
Unit.

    (a) Import Administration's Central Records Unit maintains a Public 
File Room in Room B-099 and a Dockets Center in Room 1870, U.S. 
Department of Commerce, Pennsylvania Avenue and 14th Street, NW., 
Washington, D.C. 20230. The office hours of the Public File Room and 
Dockets Center are between 8:30 a.m. and 5:00 p.m. on business days. 
Among other things, the Central Records Unit is responsible for 
maintaining an official and public record for each antidumping and 
countervailing duty proceeding (see Sec. 351.104), the Subsidies 
Library (see section 775(2) and section 777(a)(1) of the Act), and the 
service list for each proceeding (see paragraph (c) of this section).
    (b) Filing of documents with the Department. While persons are free 
to provide Department officials with courtesy copies of documents, no 
document will be considered as having been received by the Secretary 
unless it is submitted to the Import Administration Dockets Center in 
Room 1870 and is stamped with the date and time of receipt.
    (c) Service list. The Central Records Unit will maintain and make 
available a service list for each segment of a proceeding. Each 
interested party that asks to be included on the service list for a 
segment of a proceeding must designate a person to receive service of 
documents filed in that segment. The service list for an application 
for a scope ruling is described in Sec. 351.225(n).
    (d) Import Administration's Administrative Protective Order Unit 
(APO Unit) is located in Room 1870, U.S. Department of Commerce, 
Pennsylvania Avenue and 14th Street, N.W., Washington, D.C. 20230. The 
office hours of the APO Unit are between 8:30 a.m. and 5:00 p.m. on 
business days. Among other things, the APO Unit is responsible for 
issuing administrative protective orders (APOs), maintaining the APO 
service list, releasing business proprietary information under APO, and 
APO violation investigations. The APO Unit also is the contact point 
for questions and concerns regarding claims for business proprietary 
treatment of information and proper public versions of submissions 
under Sec. 351.105 and Sec. 351.304.
    3. Sections 351.304, 351.305 and 351.306 are added to subpart C to 
read as follows:


Sec. 351.304  Establishing business proprietary treatment of 
information.

    (a) Claim for business proprietary treatment. (1) Any person that 
submits factual information to the Secretary in connection with a 
proceeding may:
    (i) Request that the Secretary treat any part of the submission as 
business proprietary information that is subject to disclosure only 
under an administrative protective order,
    (ii) Claim that there is a clear and compelling need to withhold 
certain business proprietary information from disclosure under an 
administrative protective order, or
    (iii) In an investigation, identify customer names that are exempt 
from disclosure under administrative protective order under section 
777(c)(1)(A) of the Act.
    (2) The Secretary will require that all business proprietary 
information presented to, or obtained or generated by, the Secretary 
during a segment of a proceeding be disclosed to authorized applicants, 
except for
    (i) Customer names submitted in an investigation,
    (ii) Information for which the Secretary finds that there is a 
clear and compelling need to withhold from disclosure, and
    (iii) Privileged or classified information.
    (b) Identification of business proprietary information. (1) In 
general. A person submitting information must identify the information 
for which it claims business proprietary treatment by enclosing the 
information within single brackets. The submitting person must provide 
with the information an explanation of why each item of bracketed 
information is entitled to business proprietary treatment. A person 
submitting a request for business proprietary treatment also must 
include an agreement to permit disclosure under an administrative 
protective order,

[[Page 24402]]

unless the submitting party claims that there is a clear and compelling 
need to withhold the information from disclosure under an 
administrative protective order.
    (2) Information claimed to be exempt from disclosure under 
administrative protective order. (i) If the submitting person claims 
that there is a clear and compelling need to withhold certain 
information from disclosure under an administrative protective order 
(see paragraph (a)(1)(ii) of this section), the submitting person must 
identify the information by enclosing the information within double 
brackets, and must include a full explanation of the reasons for the 
claim.
    (ii) In an investigation, the submitting person may enclose 
business proprietary customer names within double brackets (see 
paragraph (a)(1)(iii) of this section).
    (iii) The submitting person may exclude the information in double 
brackets from the business proprietary information version of the 
submission served on authorized applicants. See Sec. 351.303 for filing 
and service requirements.
    (c) Public version. (1) A person filing a submission that contains 
information for which business proprietary treatment is claimed must 
file a public version of the submission. The public version must be 
filed on the first business day after the filing deadline for the 
business proprietary version of the submission (see Sec. 351.303(b)). 
The public version must contain a summary of the bracketed information 
in sufficient detail to permit a reasonable understanding of the 
substance of the information. If the submitting person claims that 
summarization is not possible, the claim must be accompanied by a full 
explanation of the reasons supporting that claim. Generally, numerical 
data will be considered adequately summarized if grouped or presented 
in terms of indices or figures within 10 percent of the actual figure. 
If an individual portion of the numerical data is voluminous, at least 
one percent representative of that portion must be summarized. A 
submitter should not create a public summary of business proprietary 
information of another person.
    (2) If a submitting party discovers that it has failed to bracket 
information correctly, the submitter may file a complete, corrected 
business proprietary version of the submission along with the public 
version (see Sec. 351.303(b)). At the close of business on the day on 
which the public version of a submission is due under paragraph (c)(2) 
of this section, however, the bracketing of business proprietary 
information in the original business proprietary version or, if a 
corrected version is timely filed, the corrected business proprietary 
version will become final. Once bracketing has become final, the 
Secretary will not accept any further corrections to the bracketing of 
information in a submission, and the Secretary will treat non-bracketed 
information as public information.
    (d) Nonconforming submissions. (1) In general. The Secretary will 
return a submission that does not meet the requirements of section 
777(b) of the Act and this section with a written explanation. The 
submitting person may take any of the following actions within two 
business days after receiving the Secretary's explanation:
    (i) Correct the problems and resubmit the information;
    (ii) If the Secretary denied a request for business proprietary 
treatment, agree to have the information in question treated as public 
information;
    (iii) If the Secretary granted business proprietary treatment but 
denied a claim that there was a clear and compelling need to withhold 
information under an administrative protective order, agree to the 
disclosure of the information in question under an administrative 
protective order; or
    (iv) Submit other material concerning the subject matter of the 
returned information. If the submitting person does not take any of 
these actions, the Secretary will not consider the returned submission.
    (2) Timing. The Secretary normally will determine the status of 
information within 30 days after the day on which the information was 
submitted. If the business proprietary status of information is in 
dispute, the Secretary will treat the relevant portion of the 
submission as business proprietary information until the Secretary 
decides the matter.


Sec. 351.305  Access to business proprietary information.

    (a) The administrative protective order. The Secretary will place 
an administrative protective order on the record within two days after 
the day on which a petition is filed or an investigation is self-
initiated, or five days after initiating any other segment of a 
proceeding. The administrative protective order will require the 
authorized applicant to:
    (1) Establish and follow procedures to ensure that no employee of 
the authorized applicant's firm releases business proprietary 
information to any person other than the submitting party, an 
authorized applicant, or an appropriate Department official identified 
in section 777(b) of the Act;
    (2) Notify the Secretary of any changes in the facts asserted by 
the authorized applicant in its administrative protective order 
application;
    (3) Destroy business proprietary information by the time required 
under the terms of the administrative protective order;
    (4) Immediately report to the Secretary any apparent violation of 
the administrative protective order; and
    (5) Acknowledge that any unauthorized disclosure may subject the 
authorized applicant, the firm of which the authorized applicant is a 
partner, associate, or employee, and any partner, associate, or 
employee of the authorized applicant's firm to sanctions listed in part 
354 of this chapter (19 CFR part 354).
    (b) Application for access under administrative protective order. 
(1) Generally, no more than two independent representatives of a party 
to the proceeding may have access to business proprietary information 
under an administrative protective order. A party must designate a lead 
firm if the party has more than one independent authorized applicant 
firm.
    (2) A representative of a party to the proceeding may apply for 
access to business proprietary information under the administrative 
protective order by submitting Form ITA-367 to the Secretary. Form ITA-
367 must identify the applicant and the segment of the proceeding 
involved, state the basis for eligibility of the applicant for access 
to business proprietary information, and state the agreement of the 
applicant to be bound by the administrative protective order. Form ITA-
367 may be prepared on the applicant's own word-processing system, and 
must be accompanied by a certification that the application is 
consistent with Form ITA-367 and an acknowledgment that any 
discrepancies will be interpreted in a manner consistent with Form ITA-
367. An applicant must apply to receive all business proprietary 
information on the record of the segment of a proceeding in question, 
but may waive service of business proprietary information it does not 
wish to receive from other parties to the proceeding. An applicant must 
serve an APO application on the other parties in the same manner and at 
the same time as it serves the application on the Department.
    (3) To minimize the disruption caused by late applications, an 
application should be filed before the first

[[Page 24403]]

questionnaire response has been submitted. Where justified, however, 
applications may be filed up to the date on which the case briefs are 
due, but any applicant filing after the first questionnaire response is 
submitted will be liable for costs associated with the additional 
production and service of business proprietary information already on 
the record. Parties have five days to serve their business proprietary 
information already on the record to applicants authorized to receive 
such information after such information has been placed on the record.
    (c) Approval of access under administrative protective order; 
administrative protective order service list. The Secretary will grant 
access to a qualified applicant by including the name of the applicant 
on an administrative protective order service list. Access normally 
will be granted within five days of receipt of the application unless 
there is a question regarding the eligibility of the applicant to 
receive access. In that case, the Secretary will decide whether to 
grant the applicant access within 30 days of receipt of the 
application. The Secretary will provide by the most expeditious means 
available the administrative protective order service list to parties 
to the proceeding on the day the service list is issued or amended.


Sec. 351.306  Use of business proprietary information.

    (a) By the Secretary. The Secretary may disclose business 
proprietary information submitted to the Secretary only to:
    (1) An authorized applicant;
    (2) An employee of the Department of Commerce or the International 
Trade Commission directly involved in the proceeding in which the 
information is submitted;
    (3) An employee of the Customs Service directly involved in 
conducting a fraud investigation relating to an antidumping or 
countervailing duty proceeding;
    (4) The U.S. Trade Representative as provided by 19 U.S.C. 3571(i);
    (5) Any person to whom the submitting person specifically 
authorizes disclosure in writing; and
    (6) A charged party or counsel for the charged party under 19 CFR 
part 354.
    (b) By an authorized applicant. An authorized applicant may retain 
business proprietary information for the time authorized by the terms 
of the administrative protective order. An authorized applicant may use 
business proprietary information for purposes of the segment of a 
proceeding in which the information was submitted. If business 
proprietary information that was submitted in a segment of the 
proceeding is relevant to an issue in a different segment of the 
proceeding, an authorized applicant may place such information on the 
record of the subsequent segment as authorized by the APO.
    (c) Identifying parties submitting business proprietary 
information. (1) If a party submits a document containing business 
proprietary information of another person, the submitting party must 
identify, contiguously with each item of business proprietary 
information, the person that originally submitted the item (e.g., 
Petitioner, Respondent A, Respondent B). Business proprietary 
information not identified will be treated as information of the person 
making the submission. If the submission contains business proprietary 
information of only one person, it shall so state on the first page and 
identify the person that originally submitted the business proprietary 
information on the first page.
    (2) If a party to a proceeding is not represented by an authorized 
applicant, a party submitting a document containing the unrepresented 
party's business proprietary information must serve the unrepresented 
party with a version of the document that contains only the 
unrepresented party's business proprietary information. The document 
must not contain the business proprietary information of other parties.
    (d) Disclosure to parties not authorized to receive business 
proprietary information. No person, including an authorized applicant, 
may disclose the business proprietary information of another person to 
any other person except another authorized applicant or a Department 
official described in paragraph (a)(2) of this section. Any person that 
is not an authorized applicant and that is served with business 
proprietary information must return it to the sender immediately, to 
the extent possible without reading it, and must notify the Department. 
An allegation of an unauthorized disclosure will subject the person 
that made the alleged unauthorized disclosure to an investigation and 
possible sanctions under 19 CFR part 354.

PART 354 [AMENDED]

    4-5. The authority citation for part 354 is revised to read as 
follows:

    Authority: 5 U.S.C. 301, and 19 U.S.C. 1677.

    6. All references in part 354 to ``protective order'' are revised 
to read ``administrative protective order'', all references to 
``proprietary information'' are revised to read ``business proprietary 
information'', and all references to ``appropriate Director'' are 
revised to read ``Director''.


Sec. 354. 1  [Amended]

    7. Section 354.1 is amended by removing the citations ``19 CFR 
353.30 and 355.20'' and replacing them with ``19 CFR 351.306''.
    8. Section 354.2 is revised as follows:


Sec. 354.2  Definitions.

    For purposes of this part:
    Administrative protective order (APO) means an administrative 
protective order described in section 777(c)(1) of the Tariff Act of 
1930, as amended; APO Sanctions Board means the Administrative 
Protective Order Sanctions Board.
    Business proprietary information means information the disclosure 
of which the Secretary has decided is limited under 19 CFR 351.105, or 
successor regulations;
    Charged party means a person who is charged by the Deputy Under 
Secretary with violating a protective order;
    Chief Counsel means the Chief Counsel for Import Administration or 
a designee;
    Date of service means the day a document is deposited in the mail 
or delivered in person;
    Days means calendar days, except that a deadline which falls on a 
weekend or holiday shall be extended to the next working day;
    Department means the United States Department of Commerce;
    Deputy Under Secretary means the Deputy Under Secretary for 
International Trade or a designee;
    Director means the Senior APO Specialist or an office director 
under a Deputy Assistant Secretary, International Trade Administration, 
or a designee;
    Lesser included sanction means a sanction of the same type but of 
more limited scope than the proposed sanction; thus a one-year bar on 
representations before the International Trade Administration is a 
lesser included sanction of a proposed seven-year bar;
    Parties means the Department and the charged party or affected 
party in an action under this part;
    Presiding official means the person authorized to conduct hearings 
in administrative proceedings or to rule on any motion or make any 
determination under this part, who may be an Administrative Law Judge, 
a Hearing Commissioner, or such other person who is not under the 
supervision or

[[Page 24404]]

control of the Assistant Secretary for Import Administration, the 
Deputy Under Secretary for International Trade, the Chief Counsel for 
Import Administration, or a member of the APO Sanctions Board;
    Proprietary information means information the disclosure of which 
the Secretary has decided is limited under 19 CFR part 351 including 
business or trade secrets; production costs; distribution costs; terms 
of sale; prices of individual sales, likely sales, or offers; names of 
customers, distributors, or suppliers; exact amounts of the gross net 
subsidies received and used by a person; names of particular persons 
from whom proprietary information was obtained; and any other business 
information the release of which to the public would cause substantial 
harm to the competitive position of the submitter;
    Secretary means the Secretary of Commerce or a designee;
    Segment of the proceeding means a portion of an antidumping or 
countervailing duty proceeding that is reviewable under section 516A of 
the Tariff Act of 1930, as amended.
    Senior APO Specialist means the Department employee under the 
Director for Policy and Analysis who leads the APO Unit and is 
responsible for directing Import Administration's handling of business 
proprietary information;
    Under Secretary means the Under Secretary for International Trade 
or a designee.
    9. Section 354.3 is amended by revising paragraphs (a)(3), and 
(a)(4), and by adding a new paragraph (a)(5), as follows:


Sec. 354.3  Sanctions.

    (a) * * *
    (3) Other appropriate administrative sanctions, including striking 
from the record any information or argument submitted by, or on behalf 
of, the violating party or the party represented by the violating 
party; terminating any proceeding then in progress; or revoking any 
order then in effect;
    (4) Requiring the person to return material previously provided by 
the Secretary and all other materials containing the business 
proprietary information, such as briefs, notes, or charts based on any 
such information received under an administrative protective order; and
    (5) Issuing a private letter of reprimand.
* * * * *
    10. Section 354.5 is amended by revising paragraphs (a), (b), (c) 
and (d)(1), (d)(2), and (d)(7), and by removing paragraph (d)(8), and 
redesignating paragraph (d)(9) as (d)(8), as follows:


Sec. 354.5  Report of violation and investigation.

    (a) An employee of the Department who has information indicating 
that the terms of an administrative protective order have been violated 
will provide the information to the Senior APO Specialist or the Chief 
Counsel.
    (b) Upon receiving information which indicates that a person may 
have violated the terms of an administrative protective order from an 
employee of the Department or any other person, the director will 
conduct an investigation concerning whether there was a violation of an 
administrative protective order, and who was responsible for the 
violation, if any. No director shall investigate an alleged violation 
that arose out of a proceeding for which the director was responsible. 
For the purposes of this part, the director will be supervised by the 
Deputy Under Secretary for International Trade with guidance from the 
Chief Counsel. The director will conduct an investigation only if the 
information is received within 30 days after the alleged violation 
occurred or, as determined by the director, could have been discovered 
through the exercise of reasonable and ordinary care.
    (c)(1) The director conducting the investigation will provide a 
report of the investigation to the Deputy Under Secretary for 
International Trade, after review by the Chief Counsel, no later than 
90 days after receiving information concerning a violation if:
    (i) The person alleged to have violated an administrative 
protective order personally notified the Secretary and reported the 
particulars surrounding the incident; and
    (ii) The alleged violation did not result in any actual disclosure 
of business proprietary information. Upon the director's request, and 
if extraordinary circumstances exist, the Deputy Under Secretary for 
International Trade may grant the director up to an additional 90 days 
to conduct the investigation and submit the report.
    (2) In all other cases, the director will provide a report of the 
investigation to the Deputy Under Secretary for International Trade, 
after review by the Chief Counsel, no later than 180 days after 
receiving information concerning a violation. Upon the director's 
request, and if extraordinary circumstances exist, the Deputy Under 
Secretary for International Trade may grant the director up to an 
additional 180 days to conduct the investigation and submit the report.
    (d) * * *
    (1) Disclosure of business proprietary information to any person 
other than the submitting party, an authorized applicant, or an 
appropriate Department official identified in section 777(b) of the 
Tariff Act of 1930, including disclosure to an employee of any other 
United States Government agency or a member of Congress.
    (2) Failure to follow the terms and conditions outlined in the 
administrative protective order for safeguarding business proprietary 
information.
* * * * *
    (7) Use of business proprietary information submitted in one 
segment of a proceeding in another segment of the same proceeding or in 
another proceeding, except as authorized by the Tariff Act of 1930 or 
by an administrative protective order.
* * * * *
    11. Section 354.6 is revised as follows:


Sec. 354.6  Initiation of proceedings.

    (a) In general. After an investigation and report by the director 
under Sec. 354.5(c) and consultation with the Chief Counsel, the Deputy 
Under Secretary for International Trade will determine whether there is 
reasonable cause to believe that a person has violated an 
administrative protective order. If the Deputy Under Secretary for 
International Trade determines that there is reasonable cause, the 
Deputy Under Secretary for International Trade also will determine 
whether sanctions under paragraph (b) or a warning under paragraph (c) 
is appropriate for the violation.
    (b) Sanctions. In determining under paragraph (a) of this section 
whether sanctions are appropriate, and, if so, what sanctions to 
impose, the Deputy Under Secretary for International Trade will 
consider the nature of the violation, the resulting harm, and other 
relevant circumstances of the case. If the Deputy Under Secretary for 
International Trade determines that sanctions are appropriate, the 
Deputy Under Secretary for International Trade will initiate a 
proceeding under this part by issuing a charging letter under 
Sec. 354.7. The Deputy Under Secretary for International Trade will 
determine whether to initiate a proceeding no later than 60 days after 
receiving a report of the investigation.
    (c) Warning. If the Deputy Under Secretary for International Trade 
determines under paragraph (a) of this

[[Page 24405]]

section that a warning is appropriate, the Deputy Under Secretary will 
issue a warning letter to the person believed to have violated an 
administrative protective order. Sanctions are not appropriate and a 
warning is appropriate if:
    (1) The person took due care;
    (2) The Secretary has not previously charged the person with 
violating an administrative protective order;
    (3) The violation did not result in any disclosure of the business 
proprietary information or the Secretary is otherwise able to determine 
that the violation caused no harm to the submitter of the information; 
and
    (4) The person cooperated fully in the investigation.
    12. Section 354.7 is amended by revising paragraph (b), as follows:


Sec. 354.7  Charging letter.

* * * * *
    (b) Settlement and amending the charging letter. The Deputy Under 
Secretary for International Trade and a charged or affected party may 
settle a charge brought under this part by mutual agreement at any time 
after service of the charging letter; approval of the presiding 
official or the administrative protective order Sanctions Board is not 
necessary. The charged or affected party may request a hearing but at 
the same time request that a presiding official not be appointed 
pending settlement discussions. Settlement agreements may include 
sanctions for purposes of Sec. 354.18. The Deputy Under Secretary for 
International Trade may amend, supplement, or withdraw the charging 
letter as follows:
    (1) If there has been no request for a hearing, or if supporting 
information has not been submitted under Sec. 354.13, the withdrawal 
will not preclude future actions on the same alleged violation.
    (2) If a hearing has been requested but no presiding official has 
been appointed, withdrawal of the charging letter will preclude the 
Deputy Under Secretary for International Trade from seeking sanctions 
at a later date for the same alleged violation.
    (3) The Deputy Under Secretary for International Trade may amend, 
supplement or withdraw the charging letter at any time after the 
appointment of a presiding official, if the presiding official 
determines that the interests of justice would thereby be served. If 
the presiding official so determines, the presiding official will also 
determine whether the withdrawal will preclude the Deputy Under 
Secretary for International Trade from seeking sanctions at a later 
date for the same alleged violation.
* * * * *
    13. Section 354.9 is amended by revising paragraph (b), as follows:


Sec. 354. 9  Request for a hearing.

    (a) * * *
    (b) Upon timely receipt of a request for a hearing, and unless the 
party requesting a hearing requests that the Under Secretary not 
appoint a presiding official, the Under Secretary will appoint a 
presiding official to conduct the hearing and render an initial 
decision.


Sec. 354.15  [Amended]

    14. Section 354.15 is amended by removing paragraph (e).


Sec. 354.17  [Amended]

    15. Section 354.17(b) is amended by removing the citations ``19 CFR 
353.30 and Sec. 355.20'' and replacing them with ``19 CFR 351.305(c)''.
    16. Section 354.18 is added to part 354, to read as follows:


Sec. 354.18  Public notice of sanctions.

    If there is a final decision under Sec. 354.15 to impose sanctions, 
or if a charging letter is settled under Sec. 354.7(b), notice of the 
Secretary's decision or of the existence of a settlement will be 
published in the Federal Register. If a final decision is reached, such 
publication will be no sooner than 30 days after issuance of a final 
decision or after a motion to reconsider has been denied, if such a 
motion was filed. In addition, whenever the Deputy Under Secretary for 
International Trade subjects a charged or affected party to a sanction 
under Sec. 354.3(a)(1), the Deputy Under Secretary for International 
Trade also will provide such information to the ethics panel or other 
disciplinary body of the appropriate bar associations or other 
professional associations and to any Federal agency likely to have an 
interest in the matter. The Deputy Under Secretary for International 
Trade will cooperate in any disciplinary actions by any association or 
agency. Whenever the Deputy Under Secretary for International Trade 
subjects a charged or affected party to a private letter of reprimand 
under Sec. 354.3(a)(5), the Secretary will not make public the identity 
of the violator, nor will the Secretary make public the specifics of 
the violation in a manner that would reveal indirectly the identity of 
the violator.
    17. Section 354.19 is added to part 354, to read as follows:


Sec. 354.19  Sunset.

    (a) If, after a period of three years from the date of issuance of 
a warning letter, a final decision or settlement in which sanctions 
were imposed, the charged or affected party has fully complied with the 
terms of the sanctions and has not been found to have violated another 
administrative protective order, the party may request in writing that 
the Deputy Under Secretary for International Trade rescind the charging 
letter. A request for rescission must include:
    (1) A description of the actions taken during the preceding three 
years in compliance with the terms of the sanctions; and
    (2) A letter certifying that: the charged or affected party 
complied with the terms of the sanctions; the charged or affected party 
has not received another administrative protective order sanction 
during the three-year period; and the charged or affected party is not 
the subject of another investigation for a possible violation of an 
administrative protective order.
    (b) Subject to the Chief Counsel's confirmation that the charged or 
affected party has complied with the terms set forth in paragraph (a) 
of this section, the Deputy Under Secretary for International Trade 
will rescind the charging letter within 30 days after receiving the 
written request.

Appendix to 19 CFR Part 351, Subpart C

    Note: The following appendix will not appear in the Code of 
Federal Regulations: Application for Administrative Protective Order 
in Antidumping or Countervailing Duty Proceeding, and Administrative 
Protective Order.

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