[Federal Register Volume 79, Number 12 (Friday, January 17, 2014)]
[Notices]
[Pages 3246-3248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00801]


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INTERNATIONAL TRADE COMMISSION


Notice Regarding Post Employment Restrictions for Former 
Employees Seeking To Appear in Sequential Five-Year Reviews Stemming 
From the Same Underlying Original Title VII Investigation

AGENCY: United States International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given of a clarification in agency practice 
regarding appearances by former Commission employees in multiple five-
year reviews stemming from the same underlying Title VII investigation. 
Former employees of the U.S. International Trade Commission 
(``Commission'') may now represent a

[[Page 3247]]

party in a five-year review conducted under title VII of the Tariff Act 
of 1930 even if they participated personally and substantially in an 
earlier five-year review of the same 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 and a five-year review is not the same particular matter 
as an earlier review of the same underlying investigation for the 
purpose of applying post employment restrictions. In addition, former 
employees seeking to appear in a later five-year review will no longer 
be required to seek approval to appear before the Commission, pursuant 
to Commission rule 201.15(b) (19 CFR 201.15(b)), even if the underlying 
original investigation or an earlier review 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 (19 U.S.C. 
1671 et. seq. and 1673 et. seq.), U.S. industries may petition the U.S. 
Department of Commerce (``Commerce'') and the 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 that five 
years after the date of publication of a countervailing duty order, an 
antidumping order, or a notice of suspension of an investigation, 
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 also requires that reviews be 
conducted every five years unless the determination to revoke the duty 
order or terminate a suspended investigation has already been made. 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 U.S. 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)). This view that a 
five-year review and its original underlying investigation are the same 
particular matter was primarily based on the expectation that the 
records of the review and underlying original investigation would 
involve the same basic facts and the same confidential information, two 
of the factors listed in OGE's regulations to be considered when 
determining if two matters are the same. 5 CFR 2641.201(h)(5). 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 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 reassessed the previous advice given to 
former employees and 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. This 
conclusion was reached after consultation with the OGE which, on March 
27, 2008, 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.'' Subsequently, the 
Commission issued a Federal Register notice on May 5, 2008, 73 FR 
24609, stating the DAEO's conclusion that five year reviews are no 
longer considered the same particular matter as the underlying original 
investigation. The notice also indicated that former Commission 
employees would no longer need to seek permission to appear in a five-
year review from the Commission, pursuant to 19 CFR 201.15, even if the 
original underlying investigation had been pending during their 
employment with the Commission.
    After the question of whether five-year reviews were the same 
particular matters as the underlying original investigation was 
resolved in 2008, former Commission employees have raised the 
additional question as to whether sequential five-year reviews of the 
same underlying original investigation are the same particular matters 
as each other. For example, if a former employee, before leaving the 
Commission, participated in the first five-year review, would that 
former employee be able to participate in the second or third five-year 
review after leaving the Commission in light of the post-employment 
restrictions in 18 U.S.C. 207.
    The original view that a five-year review and its original 
underlying investigation are the same particular

[[Page 3248]]

matter was formed early in the conduct of the five-year reviews. By 
2008, however, the Commission had conducted more than 175 reviews. With 
regard to the factors outlined in OGE's regulations defining ``same 
particular matter,'' experience had shown that a review differs in 
important respects from the underlying original investigation. In 
particular significant changes often have occurred in the markets and 
industries during the lapse of time between the original investigation 
and the review.
    In five-year reviews, the Commission must take into account the 
volume, price effect, and impact of the subject imports on the industry 
before the order was in place. However, the Commission's experience has 
been that most of the key information for making the required forward-
looking determination is the most current information developed on the 
record as part of the five-year review process.
    When making his determination that five-year reviews of the same 
underlying original investigation are all different particular matters, 
the DAEO considered issues such as whether expedited and full reviews 
should be distinguished or whether the five-year reviews should all be 
considered the same particular matter. The DAEO's conclusion that 
neither five-year reviews nor the underlying original investigation are 
the same particular matter was based on a number of factors. First, 
those factors listed in OGE's regulations defining ``same particular 
matter'' support the finding. OGE's regulations provide that ``all 
relevant factors should be considered, including the extent to which 
the matters involve the same basic facts, the same or related parties, 
related issues, the same confidential information, and the amount of 
time elapsed.'' 5 CFR 2641.201(h)(5). The analysis used by the 
Commission in reviews relies primarily on the newly developed record to 
determine not what has happened in the past but rather what is likely 
to happen if the order under review is revoked. The focus in the 
reviews is generally not the information from the record of the 
original investigation or previous reviews, but rather new information 
developed for the record of the current five-year review. Five years 
elapse between each review, during which economic and marketplace 
developments can change the basic facts and confidential information 
considered by the Commission. In the five years between reviews, the 
identity of the relevant parties, such as domestic and foreign 
manufacturers and purchasers, could also change. The DAEO also 
considered the fact that each review of an underlying original 
investigation is treated as a different case upon judicial review.
    In accordance with the DAEO's interpretation of both the statute 
and the Commission's experience in five-year reviews, 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 either the underlying investigation or any other five-year review 
stemming from the same underlying original 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 therefore, for 
that provision, will not consider a review to be the same matter as the 
underlying original investigation or any other review based on that 
underlying investigation. Consequently, former employees no longer need 
to seek approval from the Commission to appear in a review even if the 
underlying original investigation or an earlier review of the 
underlying investigation had been pending while they were employees.

    Issued: January 13, 2014.

    By order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2014-00801 Filed 1-16-14; 8:45 am]
BILLING CODE 7020-02-P