[Federal Register Volume 78, Number 74 (Wednesday, April 17, 2013)]
[Rules and Regulations]
[Pages 22773-22777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-09041]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
RIN 0625-AA92
[Docket No.: 120613168-2175-02]
Regulation Strengthening Accountability of Attorneys and Non-
Attorney Representatives Appearing Before the Department
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Final rule.
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SUMMARY: The Department of Commerce (the Department) is amending its
regulations to add a subsection that strengthens the accountability of
attorneys and non-attorney
[[Page 22774]]
representatives who appear in proceedings before the Import
Administration (IA). The rule provides that both attorneys and non-
attorney representatives will be subject to disciplinary action for
misconduct based upon good cause. The rule will assist the Department
in maintaining the integrity of its proceedings by deterring misconduct
by those who appear before it in antidumping duty (AD) and
countervailing duty (CVD) proceedings.
DATES: Effective Date: May 17, 2013. Applicability Date: This rule will
apply to all submissions made on or after the effective date.
FOR FURTHER INFORMATION CONTACT: Michele Lynch, Senior Counsel, Office
of the General Counsel, Office of Chief Counsel for Import
Administration, or Eric Greynolds, International Trade Program Manager,
Office 3, Import Administration, U.S. Department of Commerce, 1401
Constitution Avenue NW., Washington, DC 20230, 202-482-2879 or 202-482-
6071, respectively.
SUPPLEMENTARY INFORMATION:
Background
On June 26, 2012, the Department published a proposed rule entitled
``Regulation Strengthening Accountability of Attorneys and Non-Attorney
Representatives Appearing Before the Department'' that would amend its
regulations to add a subsection to strengthen the accountability of
attorneys and non-attorney representatives who appear in proceedings
before IA. (77 FR 38017). The proposed rule detailed amendments to the
Department's regulations that provide, when good cause is found, that
both attorneys and non-attorney representatives will be subject to
disciplinary action for misconduct.
The Department received a number of comments on its proposed rule,
which can be accessed using the Federal eRulemaking portal at http://www.regulations.gov under Docket Number ITA-2012-003.
After analyzing and considering all of the comments that the
Department received in response to the proposed rule, the Department is
adopting the rule without changes and is amending its regulations to
add a new subsection.
Explanation of Changes to 19 CFR Part 351
To implement this rule, the Department is amending 19 CFR part 351
to add to subpart C Sec. 351.313.
Response to Comments on the Proposed Rule
Below is a summary of the comments, grouped by issue category,
followed by the Department's response.
Comment 1--Necessity for Proposed Rule
Most commenters support the Department's goal of strengthening the
accountability of attorneys and non-attorney representatives who engage
in misconduct during agency proceedings. One commenter observed that
the proposed rule ``reasonably makes clear the Department's intentions
and practice so that attorneys and other representatives will be on
notice of the consequences of any misconduct.'' Another commenter
stated that the Department's efforts in promulgating the proposed rule
are laudable and are ``crucial to upholding the rule of law and
integrity'' of the Department's administrative proceedings. Other
commenters summarized examples of misconduct that have occurred before
the Department, noting that such incidents have been increasing in
recent years. Some commenters, however, question the purpose of the
proposed rule. One commenter, for example, expressed concern that,
however well-intentioned the proposed rule is, it subjects
practitioners to potentially punitive sanctions ``at the whim of
government officials'' without clear guidelines or safeguards. While
acknowledging the need for the Department to regulate non-attorney
representatives, another commenter suggested that there is no separate
need for the Department to discipline attorneys because appropriate Bar
counsel and associations are responsible for such discipline.
Response: As discussed previously in the Notice of Proposed
Rulemaking (77 FR 38017), the Department believes that promulgation of
this rule will assist the Department in its efforts to continue to
maintain the integrity of its proceedings by deterring misconduct by
attorneys and non-attorney representatives appearing before it in
antidumping and countervailing duty proceedings. Set forth below are
our responses with respect to specific issues.
Comment 2--Practitioners May Have To Demonstrate Acceptability To
Practice
Certain commenters are concerned with the ``acceptability''
language contained in the proposed rule and have asserted that the term
is impermissibly vague. One has suggested that the Department create a
standard of acceptability where ``technical competence and ethical
integrity'' must be satisfied. According to this commenter, attorneys
would automatically satisfy the standard while non-attorney
representatives should be required to adhere to a code of conduct and,
for technical competence, to meet standards modeled after other
agencies such as the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF). The commenter states that the ATF requires
practitioners to satisfy minimum standards such as 5 years of
employment with the agency or 5 years of employment in the regulated
industry, or prior experience representing parties before the Internal
Revenue Service or ATF.
Response: The ``acceptability'' language in the rule mirrors
language that appears in the International Trade Commission (ITC's)
regulation governing the appearance of attorneys and agents before the
Commission (19 CFR 201.15): ``Any person desiring to appear as attorney
or representative before the Department may be required to show to the
satisfaction of the Secretary his acceptability in that capacity.'' The
Department is not aware that this requirement has caused the ITC any
difficulty in administering its regulation. Without having applied the
rule, the Department is not in a position to identify every conceivable
instance in which this provision may need to be invoked, but the
Department does not agree that it is impermissibly vague. We note that
an attorney, who is eligible to practice pursuant to the rules of the
bar of the highest court of any State, possession, territory, or
Commonwealth of the United States, or of the District of Columbia, who
is not currently under suspension or disbarment, may practice as an
attorney before the Department. The possibility exists that a person
who is not an attorney in good standing as set forth above might
identify himself or herself as an attorney or ``legal representative''
in an administrative proceeding. If that happens, the Department may
find that the mischaracterization of that person's status renders that
person not acceptable in the capacity presented.
Additionally, suspension or disbarment of an attorney or non-
attorney representative by another agency or disciplinary tribunal
might render such a person ineligible to appear before the Department.
As discussed further below, this would be especially true if the
suspension or disbarment were based upon fraud, misrepresentation,
bribery or perjury. The Department agrees with the commenter who noted
that attorneys
[[Page 22775]]
and non-attorney representatives should have sufficient knowledge of
and competence in the subject area and should comply with the highest
professional and ethical standards. However, unlike the ATF, the
Department does not administer a regulated industry and is not
instituting any technical ``tests'' that practitioners must satisfy
except for the obvious standard that attorneys practicing before the
Department must be in good standing before a U.S. Bar as noted above.
Comment 3--Good Cause Standard for the Application of Sanctions for
Misconduct
Certain commenters assert that the ``good cause'' standard
contained in the proposed rule is vague and undefined, and that this
lack of definition could create uncertainty for practitioners. Another
commenter recommends that the Department review allegations of
misconduct prior to beginning a proceeding to ensure that a plausible
basis exists for imposing sanctions.
Response: The Department does not agree that a ``good cause''
standard is too vague. Many administrative agencies, including the
Department, are frequently required to exercise discretion based upon a
standard of ``good cause.'' Indeed, this standard already appears in
the Department's regulations in several other contexts, so the agency
and practitioners are familiar with it and the agency has significant
experience applying such a standard. See 19 CFR 351.216(c),
351.218(d)(3)(iv), 351.218(e)(1)(iii), 351.302(b), 351.307(b)(1)(iv).
Allegations of misconduct by an attorney or non-attorney representative
in an administrative proceeding will be reviewed to ensure that there
are adequate or substantial grounds supporting the allegation and the
affected party will have an opportunity to present his or her views
before any sanction is imposed.
Comment 4--What Is ``Improper Conduct''
Commenters have suggested that the Department further define
``improper conduct'' so that practitioners understand what conduct is
and is not acceptable. Included within one comment was an inquiry
concerning the possible effect of suspension or disbarment by another
agency.
Response: Because of the breadth and variety of proceedings
involving practitioners before the Department, we are not able to
define every possible act that may be encompassed by the term
``improper conduct.'' Indeed, there may be some types of ``improper
conduct'' in the future that we simply cannot contemplate at this time.
Further, the Department is concerned that any attempt to specifically
define ``improper conduct'' would be deemed by certain practitioners to
be an exhaustive list. It is the Department's intent to maintain the
integrity of its proceedings and the agency will proceed to review any
allegations of misconduct that may arise on a case-by-case basis. The
Department can identify, however, certain conduct by attorneys and non-
attorney representatives that directly affects the integrity of its
proceedings and that would be considered improper. Clearly improper
conduct includes, but is not limited to, knowingly providing incorrect
information to the agency; knowingly making misrepresentations of fact
or law; knowingly making false accusations in a proceeding; failing to
engage in reasonable diligence including failure to exercise such
diligence in the preparation and/or review of submissions; and
assisting an attorney or non-attorney representative who has been
suspended or disbarred from practicing before the Department during
such disbarment or suspension to work on matters pending before the
agency.
The Department will have to examine on a case-by-case basis the
circumstances surrounding an attorney's or non-attorney
representative's suspension or disbarment by another federal agency.
Certain circumstances surrounding a suspension or disbarment may call
into question an attorney's or representative's ability to practice
before the Department, such as if the practitioner were suspended or
disbarred for perpetrating a fraud, misrepresentation, perjury, or
bribery upon another agency.
This rule is not intended to cover ethical conflicts uniquely
within the province of local Bar authorities. For instance, the
Department will not consider claims that a prior attorney refuses to
provide a client's file to the current attorney or that a former law
firm lawyer is representing a new client whose interest conflicts with
the attorney's former clients. Additionally, parties should not file
requests covering such matters with the Department believing that the
Department will notify appropriate Bar counsel of the possible ethical
conflict. The Department will not entertain such requests and will not
refer such conflicts to Bar counsel. Instead, to the extent a law firm
or individual attorney believes that an ethical breach is occurring or
has occurred, they should follow the appropriate professional
responsibility guidelines and ethical canons.
Comment 5--Procedural Safeguards
Certain commenters express concern about what they deem to be a
lack of procedural safeguards protecting attorneys and non-attorney
representatives. Specifically, the commenters assert that the agency
should provide more than just a mere opportunity to present views, and
that affected parties should have the right to review and respond to
evidence forming the basis of any potential disciplinary action. Other
commenters suggest that agency personnel involved in a prospective
disciplinary proceeding should be independent from the personnel
conducting the underlying administrative proceeding, similar to the
agency's Administrative Protective Order (APO) practice. One commenter
has suggested that the Department designate a contact person or office
to handle misconduct inquiries. Another commenter asserts that the
Department is required to establish procedures to protect client
confidences in the defense of a prospective disciplinary action and to
permit reference to APO information in defense of an action. Another
commenter appreciated the Department's intention to provide
practitioners with the opportunity to provide their views to the agency
before the imposition of sanctions indicating that adequate due process
must be provided.
Response: Before issuing this rule, the Department considered the
process to be followed in the event that an allegation of misconduct is
received or if the agency is otherwise aware of the misconduct. The
Department believes that the existence of the regulation will serve to
remind practitioners of their responsibilities such that the regulation
may not be heavily used. The agency intends to develop specific
procedures for handling misconduct allegations as it proceeds and
expects to refine such procedures as it gains experience with
misconduct claims. Although the Department may use the agency's APO
regulations as guidance, the Department does not presently envision
adopting the lengthy process contained in those regulations. For now,
it is sufficient that the affected party will be afforded the
opportunity to provide his or her views to the agency. The Department
believes that this will permit potentially affected parties an
opportunity to review and respond to the allegations and the evidence.
It is not the Department's intention to require attorneys to breach
client confidences. However, attorneys and non-attorney representatives
are
[[Page 22776]]
reminded that a successful practice before the Department requires due
diligence. With respect to misconduct involving information covered by
an APO, the agency will have to address such a situation if it arises
under this rule. The Department agrees with the suggestion that the
personnel involved in administering the underlying administrative
proceeding should not be involved in a misconduct investigation once an
allegation is made or in determining the proper sanction for the
misconduct. The Department has not yet determined whether a specific
person or office will be responsible for reviewing misconduct inquiries
but will continue to consider the matter as it gains experience
administering this new regulation. For now, parties may direct such
allegations to the Deputy Assistant Secretary for Import Administration
at the filing address set forth in 19 CFR 351.303(b) of our
regulations.
Comment 6--Public Register of Sanctioned Attorneys and Representatives
Several commenters take issue with the Department's stated
intention of maintaining a public register of attorneys and
representatives who may be suspended or barred from practice before the
agency. Some suggest that the Department simply publish the offenders'
names in the Federal Register along with the periods for such
suspension or disbarment thereby obviating the need to maintain a
separate registry. Others believe that a public registry is not
warranted noting that the ITC's comparable rule has no such provision
and that consistency between the two regulations would be beneficial to
all parties. One commenter asserts that the maintenance of an internal,
non-public list should be sufficient to prevent such persons from
practicing while another is concerned that the registry might contain
names of attorneys, who through an inadvertent bracketing error, have
violated the Department's APO procedures and that such public release
would be overly harsh. Others state that, because the proposed
regulation, like the ITC's regulation, contemplates the issuance of
public reprimands, where appropriate, there is no need for a public
registry. One of those commenters also expressed concern that in
today's internet age, publicizing violators' names will survive long
after the temporary nature of any suspension.
Another commenter suggests that the Department delete any reference
to a private reprimand arguing that the rule will be less effective if
the public and trade community are not aware of reprimands and that the
possibility of private reprimands affects the transparency of the
proposed rule.
Response: The public nature of the registry is intended to serve as
a deterrent to prevent attorneys and non-attorney representatives from
engaging in improper conduct with respect to their practice before the
agency. Whether the deterrent is created by notification in the Federal
Register or through maintenance of a public registry is largely a
distinction without a difference. The Department recognizes in this
rule that there may be situations that do not necessitate sanctions or
disbarment from practicing before the agency--both of which would
result in public disclosure--and that a private reprimand would be
appropriate in the circumstances.
This rule is not intended to interfere or overlap with the APO
regulations located at 19 CFR 354.1 which have been in place for many
years. Consequently, Departmental action taken pursuant to this rule is
not intended to encompass behavior regulated by the APO regulations. If
misconduct is alleged involving information covered by an APO, the
Department will address the situation at that time. Inadvertent APO
bracketing alone should not result in an attorney's or non-attorney
representative's name being placed on the public registry maintained
for violations of this rule (although, the APO regulations do not
mandate that sanctions be private).
With respect to comments that publication is ``draconian'' or will
survive long-past the actual suspension in the internet age, we note
that at a minimum, attorneys are aware that publicizing names of those
found to have violated their professional responsibilities is
undertaken routinely by local disciplinary tribunals. For example, the
D.C. Office of Bar Counsel and Board on Professional Responsibility
publish the names of reprimanded, suspended and disbarred attorneys on
a monthly basis in the Washington Lawyer: The Official Journal of the
District of Columbia Bar, along with a description of the violation.
Disciplinary information is also available on the District of Columbia
Bar Web site www.dcbar.org. Publicizing names of those who violate this
rule is thus consistent with the practice of other disciplinary
tribunals.
Comment 7--Effect on Those Working With Sanctioned Attorney or Non-
attorney Representative
The Department received comments indicating that the proposed rule
does not address the effect that sanctioning an individual working in a
firm or with co-counsel might have upon the firm or co-counsel. The
same commenter also expressed concern that the proposed rule does not
address whether a ``lead attorney'' will be held responsible for
another person's misconduct.
Response: Depending upon the nature of the misconduct allegation,
the Department may be required to investigate more than one
practitioner at a firm and will consider all allegations on a case-by-
case basis. Practitioners whose names appear on submissions before the
agency, including certifications filed pursuant to 19 CFR 351.303, are
subject to disciplinary action pursuant to the rule. It is not the
Department's intent at this time to hold one practitioner responsible
for the conduct of others; however, if a submission contains multiple
names, all named practitioners may be responsible for any misconduct
associated with the submission. Consequently, if the Department
determines that a submission contains misrepresentations and, for
example, three practitioners are listed on the submission, then
depending upon the results of the Department's investigation, it may be
appropriate for all three practitioners to be sanctioned. In general,
the Department does not intend to sanction entire firms when a
particular representative is determined to have engaged in misconduct,
unless the facts and evidence support such a sanction. The Department
does, however, expect that firms will ensure that any sanctioned
individuals abide by the terms of any sanction and will not permit such
individuals to work on Department matters during the pendency of any
sanction. In fact, such action could itself be deemed to be improper
conduct and subject the firm to sanctions.
Comment 8--Who May Appear Before the Department
Commenters have variously suggested that the Department require
licenses to appear before it, that non-attorney representatives may not
appear before the agency and that permitting them to do so violates
D.C. Bar rules, that the Department should only permit entities to be
represented by ``approved'' representatives subject to discipline, and
that foreign-based non-attorneys should not be permitted to appear
before the agency. Certain commenters have also suggested that the
Department preclude non-attorney representatives from raising legal
issues.
Response: The Department's regulations for many years have
permitted attorneys and non-attorney
[[Page 22777]]
representatives to appear before the agency in representative
capacities and have regulated their appearance without requiring an
application or a license to do so and without restricting the issues
covered by either type of representative. This rule does not change
that practice in any respect. The rule expressly identifies persons who
may appear before the agency, including both attorneys and non-attorney
representatives, and identifies possible sanctions for misconduct by
such representatives. Nothing presently precludes the Department from
disciplining any representatives including attorneys who appear before
it. Indeed, both attorneys and non-attorney representatives have been
subject to possible discipline for years for violation of the
Department's APO procedures. The Department recognizes that some
agencies require certain non-attorney practitioners to enroll to
practice before them (for instance, ATF). Trade remedies, however, is
not a regulated industry warranting such enrollment.
The Department shares the concern expressed by one commenter that
this rule may not remedy misconduct by all practitioners, specifically
those who do not operate in the United States. To the extent a foreign
non-attorney representative (a foreign attorney, not licensed in the
United States, a U.S. possession or territory, may not appear as an
attorney in Department proceedings and may only appear as a non-
attorney representative) is found to have violated the rule, he or she
will be subject to the same disciplinary sanctions by the Department as
U.S. non-attorney representatives. Depending upon the nature of the
misconduct, such an individual may thus receive a reprimand, a
suspension for a period of time or disbarment from appearing before the
agency and with respect to the latter two, would not be permitted to
appear before the Department or sign submissions filed with the
Department. To the extent a commenter is concerned that the suspended
or disbarred foreign non-attorney representative could then begin to
work for other companies behind the scenes, we agree that the
Department's ability to police such matters is limited; however, the
Department expects that any such cases would be exceptional and will
seek to address them consistent with their particular facts.
With respect to disciplining attorneys who appear before the
Department, many federal agencies undertake similar endeavors. We agree
that relevant Bar associations and Bar counsel are well able to
discipline attorneys and the Department expects to refer the names of
attorneys that the Department determines have engaged in misconduct to
the appropriate Bar counsel.
Classification
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 USC 601 et
seq., the Chief Counsel for Regulation at the Department of Commerce
certified to the Chief Counsel for Advocacy, Small Business
Administration, at the proposed rule stage that this action would not
have a significant economic impact on a substantial number of small
entities. No comments were received regarding the economic impact of
this rule. As a result, the conclusion in the proposed rule remains
unchanged and a final regulatory flexibility analysis is not required
and none has been prepared.
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping duties,
Countervailing duties.
Dated: April 11,2013.
Paul Piquado,
Assistant Secretary for Import Administration.
For the reasons stated above, the Department amends 19 CFR part 351
as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
0
1. The authority citation for 19 CFR 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.
0
2. Add Sec. 351.313 to subpart C to read as follows:
Sec. 351.313 Attorneys or representatives.
In general. No register of attorneys or representatives who may
practice before the Department is maintained. No application for
admission to practice is required. Any person desiring to appear as
attorney or representative before the Department may be required to
show to the satisfaction of the Secretary his acceptability in that
capacity. Any attorney or representative practicing before the
Department, or desiring so to practice, may for good cause shown be
suspended or barred from practicing before the Department, or have
imposed on him such lesser sanctions (e.g., public or private
reprimand) as the Secretary deems appropriate, but only after he has
been accorded an opportunity to present his views in the matter. The
Department will maintain a public register of attorneys and
representatives suspended or barred from practice. ``Attorney''
pursuant to this subpart and ``legal counsel'' in Sec. 351.303(g) have
the same meaning. ``Representative'' pursuant to this subpart and in
Sec. 351.303(g) has the same meaning.
[FR Doc. 2013-09041 Filed 4-16-13; 8:45 am]
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