[Federal Register Volume 73, Number 87 (Monday, May 5, 2008)]
[Notices]
[Pages 24609-24610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9760]



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INTERNATIONAL TRADE COMMISSION


Notice of Change in Post Employment Restrictions for Former 
Employees Seeking To Appear in Five-Year Reviews

AGENCY: United States International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given of a change in agency practice. Former 
employees of the U.S. International Trade Commission (``Commission'') 
may now represent a party in a five-year review conducted under title 
VII of the Tariff Act of 1930 even if they participated personally and 
substantially in the corresponding underlying original title VII 
investigation while a Commission employee. The five-year review is not 
the same particular matter as the underlying original investigation for 
the purpose of applying post employment restrictions. In addition, 
former employees seeking to appear in a five-year review will no longer 
be required to seek approval to appear from the Commission, pursuant to 
Commission rule 201.15(b) (19 CFR 201.15(b)), even if the underlying 
original investigation had been pending when they were employed by the 
Commission.

FOR FURTHER INFORMATION CONTACT: Carol McCue Verratti, Esq., Deputy 
Agency Ethics Official, Office of the General Counsel, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436, telephone (202) 205-3088. Hearing-impaired individuals are 
advised that information on this matter can be obtained by contacting 
the Commission's TDD terminal at (202) 205-1810. General information 
concerning the Commission can also be obtained by accessing its 
Internet server (http://www.usitc.gov).

SUPPLEMENTARY INFORMATION: The Commission's authority to issue this 
notice is based on 19 U.S.C. 1335 and 5 CFR part 2638.
    Under Title VII of the Tariff Act of 1930, as amended, U.S. 
industries may petition the U.S. Department of Commerce (``Commerce'') 
and the U.S. International Trade Commission (``Commission'') for relief 
from imports that are sold in the United States at less than fair value 
(``dumped'') or that benefit from countervailable subsidies provided 
through foreign government programs. If Commerce and the Commission 
make final affirmative determinations that dumped and/or subsidized 
imports are injuring or threaten to injure a domestic industry in the 
United States an antidumping duty or countervailing duty order will be 
issued. For the purposes of this notice, such investigations are 
considered to be ``underlying original investigations.''
    In 1994, Congress passed the Uruguay Round Agreements Act, which 
added the requirement to Title VII of the Tariff Act of 1930 (19 U.S.C. 
1671 et seq. and 1673 et seq.) that five years after the date of 
publication of a countervailing duty order, an antidumping order, or a 
notice of suspension of an investigation, the Department of Commerce 
(``Commerce'') and the Commission shall conduct a review to determine, 
in accordance with 19 U.S.C. 1675(c), whether revocation of the 
countervailing or antidumping duty order or termination of the 
investigation suspended under 19 U.S.C. 1671c or 1673c would likely 
lead to continuation or recurrence of dumping or a countervailable 
subsidy and material injury. The statute, 19 U.S.C. 1675a, mandates 
that certain information and factors be considered by Commerce and the 
Commission respectively in reaching their review determinations. 19 
U.S.C. 1675a(a)(1)(A) requires the Commission to take into account, 
among other factors, ``its prior injury determinations, including the 
volume, price effect, and impact of imports of the subject merchandise 
on the industry before the order was issued or the suspension agreement 
was accepted.'' In compliance with this provision, the Commission adds 
to the record of the review the Commission's published opinion and the 
Commission's staff report from the final phase of each original 
investigation.
    Beginning in 1996, when questions were first raised about the 
effect of post employment laws and regulations on former employees 
seeking to represent parties in five-year reviews, the Commission's 
Designated Agency Ethics Official (``DAEO'') advised former employees, 
after consideration of the relevant post employment and title VII 
statutes and regulations and consultation with the Office of Government 
Ethics (``OGE''), that the five-year review would be considered the 
``same particular matter'' as the underlying original investigation for 
the application of the post-employment law, 18 U.S.C. 207, and 
Commission rule 201.15(b) (19 CFR 201.15(b)). Thus, a former employee 
who had worked personally and substantially on an underlying original 
investigation while a Commission employee could not represent a party 
in the corresponding five-year review after leaving the Commission. In 
addition, because the underlying investigation and the review were 
considered to be the same matter under 19 CFR 201.15(b), former 
employees who worked at the Commission while the underlying 
investigation was pending, even if they did not work on that 
investigation, were required to seek Commission approval to appear in 
such review.
    As a result of the Commission's experience gained in administering 
the five-year review provisions of the law, and more specifically the 
experience in the second set of five-year reviews, which commenced in 
2004, the Commission's DAEO has reassessed the previous advice given to 
former employees and has determined that an underlying original 
investigation should no longer be considered to be the same particular 
matter as any five-year review of the corresponding order.
    As part of this reassessment, the Commission's DAEO sought an 
opinion from the Office of Government Ethics (``OGE''). On March 27, 
2008, OGE issued an informal advisory letter (``2008 Opinion'') 
concluding that ``first, second and subsequent reviews are not the same 
particular matter involving specific parties as the underlying original 
investigation leading to the original order.''

A. Initial Conclusion

    The initial conclusion in 1996 that a first review was the same 
particular matter as the underlying original investigation was based on 
the definition of ``same particular matter'' found in OGE's 
regulations, 5 CFR part 2637, and in its published summary of post 
employment restrictions, which was issued in 1992. OGE's regulation 
interpreting the ``same particular matter'' (5 CFR 2637.201(c)(4)) 
states that ``[t]he same particular matter may continue in another form 
or in part.'' In determining whether two particular matters are the 
same, ``the agency should consider the extent to which the matters 
involved the same basic facts, related issues, the same or related 
parties, time elapsed, the same confidential information, and the 
continuing existence of an important Federal interest.'' Analyzing 
these factors in light of the statutory mandate that the Commission 
consider its prior injury determinations in reaching its determination 
in a five-year review, 19 U.S.C. 1675a(a)(1)(A), the Commission's DAEO 
at the time concluded and OGE confirmed in a 1999 informal advisory 
letter, OGE 99x14(2), that a review is the same particular matter as 
the underlying original investigation because the records of the 
original investigation and the review would contain much of the

[[Page 24610]]

same basic facts and the same confidential information.

B. The Commission's Experience Conducting Reviews

    The earlier view that the records of the review and underlying 
original investigation would largely involve the same basic facts and 
the same confidential information was necessarily formed without the 
benefit of the Commission's subsequent experience. Since 1999, when the 
earlier advisory opinion was issued by OGE, the Commission has 
conducted more than 175 reviews. With regard to the factors outlined in 
OGE's regulations defining ``same particular matter,'' this experience 
has shown that a review differs in important respects from the 
underlying original investigation. Developments in the markets and 
industries that occur during the lapse of time between the original 
investigation and the review are an especially significant factor.
    The Commission's experience with reviews has shown that although 
the volume, price effect, and impact of the imports on the industry 
before the order was in place must be taken into account, the key 
information frequently relied upon to reach the required forward-
looking determination in a five-year review regarding the likely 
volume, price effect, and impact of the imports on the domestic 
industry in the event of revocation is the most current information 
that is developed on the record as part of the five-year review 
process.

C. In Conclusion

    In accordance with the DAEO's interpretation of both the statute 
and the Commission's experience in five-year reviews, which was 
confirmed in OGE's 2008 Opinion (that a five-year review is not the 
same particular matter as the underlying original investigation), 
appearances of former employees in Commission five-year reviews will be 
treated under 18 U.S.C. 207 as appearances that are not in the same 
particular matter as the underlying investigation. In addition, the 
Commission has traditionally applied 19 U.S.C. 201.15(b) consistently 
with the application of 18 U.S.C. 207 and will do so in this situation. 
Therefore, a review will not be considered to be the same matter as the 
underlying original investigation pursuant to section 201.15(b). 
Consequently, former employees no longer need to seek approval from the 
Commission to appear in a review even if the underlying original 
investigation had been pending while they were employees.

    Issued: April 29, 2008.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E8-9760 Filed 5-2-08; 8:45 am]
BILLING CODE 7020-02-P