[Federal Register Volume 71, Number 181 (Tuesday, September 19, 2006)]
[Notices]
[Pages 54795-54796]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15552]


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DEPARTMENT OF COMMERCE

International Trade Administration


Status of Investigation Into Charges of Violations of 
Administrative Protective Orders in Antidumping and Countervailing Duty 
Proceedings

AGENCY: International Trade Administration, Department of Commerce.

ACTION: Notice.

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EFFECTIVE DATE: September 19, 2006.
SUMMARY: In recent months, the International Trade Administration has 
completed a number of investigations into charges that the terms of 
administrative protective orders issued in connection with antidumping 
and countervailing duty proceedings have been violated. The results of 
these investigations are summarized below.

FOR FURTHER INFORMATION CONTACT: John McInerney, Chief Counsel for 
Import Administration, (202) 482-1434.

SUPPLEMENTARY INFORMATION: The International Trade Administration of 
the Department of Commerce (ITA) wishes to remind those members of the 
bar who appear before it in antidumping or countervailing duty 
proceedings of the extreme importance of protecting the confidentiality 
of business proprietary information obtained pursuant to an 
administrative protective order (APO) during the course of those 
proceedings. In order that the gravity with which ITA views violations 
of its APOs might be better appreciated, ITA is publishing the 
following report on fifteen recent findings that the provisions of ITA 
APOs have been violated. ITA is also publishing the following report of 
two recent findings that there was no reasonable cause to believe that 
the terms of an APO had been violated.
    With respect to the investigations where ITA determined that the 
terms of an APO had been violated, five of the investigations consisted 
of cases where counsel filed a public version of a document and failed 
to redact business proprietary information originally submitted by 
another party.
    In four of the investigations, documents containing business 
proprietary information were erroneously served on law firms not 
subject to the respective APOs. The

[[Page 54796]]

documents were either returned or destroyed without being reviewed.
    In one investigation, an employee of a law firm directed another 
employee to fax a document containing the business proprietary 
information of a party to the proceeding to the law firm's client, who 
was not subject to the APO. Upon receiving the faxed document, the 
client recognized the error, called the law firm, and destroyed the 
document before reviewing it.
    In two investigations involving the same set of facts, a law firm 
withdrew from representing a party, and transferred its files from that 
proceeding to another law firm. When the second law firm opened the 
files, it found two proprietary documents from two unrelated 
proceedings. The second law firm was not subject to the APO of either 
of those two proceedings, and returned the documents without copying 
them or further disseminating them.
    In one investigation, one law firm inadvertently attached two pages 
containing proprietary information to a public letter, and served that 
letter on another law firm. The first law firm discovered its mistake, 
and informed ITA before the letter could be placed in the public files. 
The second law firm returned the letter without copying it or further 
disseminating it.
    One investigation involved a law firm that had access to a document 
due to its involvement in ongoing litigation concerning an 
administrative review completed several years earlier. The terms of the 
APO in that review permitted an authorized applicant to use information 
submitted in that review in two successive segments of the same 
proceeding. An administrative review of the same proceeding was 
currently pending before ITA; however, it was beyond the two successive 
segments as specified in the APO. An attorney from that law firm called 
the attention of ITA officials to the document from the earlier review, 
and urged those officials to place the document on the record of the 
current administrative review. ITA concluded that although the attorney 
did not place the document on the record of the current review, by 
calling the attention of ITA officials to this document, the attorney 
had improperly used the document, in violation of the terms of the APO.
    In the final investigation, an authorized applicant had access to 
the financial statement of a company due to its involvement in an 
administrative review in one proceeding. Due to a request by the 
submitting company, ITA conferred on this document business proprietary 
treatment. The authorized applicant, however, urged ITA officials to 
place this financial statement on the record of an administrative 
review of a second, separate proceeding involving the same company. 
Although the financial statement itself was a public document, because 
ITA agreed to treat it as business proprietary information, all 
authorized applicants were obligated likewise to treat it as business 
proprietary information until ITA had decided proprietary treatment was 
unwarranted. ITA concluded that referring to a document in one 
proceeding to which the authorized applicant had access due to its 
involvement in another proceeding was a violation of the APO because 
ITA was treating that document as proprietary in the second proceeding.
    In all of the cases, ITA found that the APO violations were 
inadvertent and that no significant harm was caused to the submitter of 
the information.
    In each of these cases, the individuals involved were cautioned to 
observe the terms of the APO and the Department's regulations, and 
warned that any future violations could be treated more severely.
    ITA has also determined in two investigations that reasonable cause 
did not exist to believe that the terms of an APO had been violated. In 
one case, a law firm alleged that another law firm had released 
business proprietary information when the second law firm submitted a 
document making a legal argument. ITA has concluded that based on the 
facts of this case, the second law firm did not disclose any business 
proprietary information in making its legal argument.
    In the second investigation, an attorney filed an application for 
APO access in both an antidumping duty and a countervailing duty 
investigation involving the same product from the same country. On the 
APO applications, the attorney represented that the client was an 
interested party because it was an importer of subject merchandise. It 
was later discovered that the importer did import subject merchandise, 
but not from the country subject to the two investigations. The 
attorney then withdrew, and certified to the destruction of all APO 
materials received in the two investigations.
    A party to the two investigations alleged that making a false 
statement on the APO application was a violation of the APO. ITA 
investigated this allegation, and concluded that while the attorney 
confirmed that the client imported subject merchandise, the attorney 
did not think to confirm that the client imported that merchandise from 
the particular country in question, as the attorney represented the 
same client in three other investigations involving the same 
merchandise, but from different countries. Although the statements in 
the two APO applications at issue that the client was an interested 
party were false, the attorney made these statement out of mere 
inadvertence, and not due to a reckless disregard for the truth, or an 
intention to deceive. Based on the facts of this case the required 
mental state did not exist to justify sanctions. ITA further concluded 
that the investigation did not reveal any evidence that any of the 
information obtained by the attorney under the APOs had been improperly 
disclosed.
    Serious harm can result from inadvertent or other disclosure of 
proprietary information obtained under APO. ITA will continue to 
investigate vigorously allegations that the provisions of APOs have not 
faithfully been observed, and is prepared to impose sanctions 
commensurate with the nature of the violations, including letters of 
reprimand, denial of access to proprietary information, or debarment 
from practice before the ITA.
    This notice is published pursuant to 19 CFR 354.18 (2004).

    Dated: August 7, 2006.
John D. McInerney,
Chief Counsel, Import Administration.
[FR Doc. E6-15552 Filed 9-18-06; 8:45 am]
BILLING CODE 3510-DS-S