Advance Notice of Proposed Rulemaking Concerning the Treatment of Business Proprietary and Confidential Business Information

INTERNATIONAL TRADE COMMISSION

19 CFR Parts 201 and 207

Advance Notice of Proposed Rulemaking Concerning the Treatment of

Business Proprietary and Confidential Business Information

AGENCY: International Trade Commission.

ACTION: Advance notice of proposed rulemaking and request for comments.

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SUMMARY: The Commission is considering revision of its rules of general

application and its rules concerning antidumping and countervailing

duty investigations to change its procedures for defining business

proprietary information (BPI) and confidential business information

(CBI), disclosing such information under administrative protective

order (APO), responding to breaches of APO, and serving petitions.

The Commission hereby solicits written comments from interested

persons to aid the Commission in determining whether the subject

amendments should be made. For guidance on specific issues that the

Commission would like to have commenters address, see the Supplementary

Information section of this notice.

If the Commission decides to proceed with this rulemaking after

reviewing the comments filed in response to this notice, the revisions

will be promulgated in accordance with the Administrative Procedure Act

(APA) (5 U.S.C. Sec. 553), and will be codified in 19 CFR Parts 201 and

207.

DATES: Comments will be considered if received on or before June 20,

1994.

ADDRESSES: A signed original and 14 copies of each set of comments,

along with a cover letter stating the nature of the commenter's

interest in the proposed rulemaking, should be submitted to Donna R.

Koehnke, Secretary, U.S. International Trade Commission, 500 E Street,

SW., Room 112, Washington, DC 20436.

FOR FURTHER INFORMATION CONTACT: Paul R. Bardos, Esq., Office of the

General Counsel, U.S. International Trade Commission, telephone 202-

205-3102. Hearing-impaired individuals can obtain information

concerning the proposed rulemaking by contacting the Commission's TDD

terminal at 202-205-1810.

SUPPLEMENTARY INFORMATION: Section 335 of the Tariff Act of 1930 (19

U.S.C. 1335) authorizes the Commission to adopt such reasonable

procedure and rules and regulations as it deems necessary to carry out

its functions and duties. Part 201 of title 19 of the Code of Federal

Regulations currently sets forth procedures of general application to

nonadjudicative investigations, and in particular defines BPI and CBI

and establishes procedures for their handling. Part 207 of title 19

sets forth procedures for antidumping and countervailing duty

investigations, and in particular provides for the filing of petitions,

the handling of BPI, and the disclosure of BPI under APO.

The Commission has engaged in a number of meetings with

representatives of the international trade bar at which various

concerns about Commission practice were put forward. Some of those

concerns have been addressed by changes in internal policies. Others

cannot properly be addressed without changes to the Commission's rules.

Consequently, the Commission has determined to issue the present

advance notice of proposed rulemaking to acquaint the public with the

rules changes contemplated by the Commission and to seek public comment

on those proposed changes.

The Commission would like to have all commenters address the

following proposed revisions. Certain conventions have been used to

highlight the proposed revisions to the rules. New language is shown

inside bold-faced arrows, while language that would be deleted is set

off with bold-faced brackets.

1. Section 201.6 is proposed to be revised expressly to allow

parties and the Commission publicly to discuss confidential statistics

in nonquantitative characterizations unless the submitter provides good

cause for confidential treatment of such characterizations. In

particular, the revision would permit the discussion of trends in such

statistics, e.g., whether the difference between two confidential

figures shows an increase or a decrease. This revision would apply only

to CBI and BPI submitted in numerical form; textual CBI and BPI would

not be disclosed in any form. This revision would address a concern

expressed by practitioners that the Commission's definition of CBI and

BPI may overly restrict use of such information. The revision would

also define nondisclosable BPI as described in 19 U.S.C.

Sec. 1677f(c)(1)(A) and clarify the procedure for submitting such

information. Section 201.6 as revised would read as follows:

Sec. 201.6 Confidential business information.

(a) Definitions. (1)

Confidential business information is information which concerns or

relates to the trade secrets, processes, operations, style of works, or

apparatus, or to the production, sales, shipments, purchases,

transfers, identification of customers, inventories, or amount or

source of any income, profits, losses, or expenditures of any person,

firm, partnership, corporation, or other organization, or other

information of commercial value, the disclosure of which is likely to

have the effect of either impairing the Commission's ability to obtain

such information as is necessary to perform its statutory functions, or

causing substantial harm to the competitive position of the person,

firm, partnership, corporation, or other organization from which the

information was obtained, unless the Commission is required by law to

disclose such information. The term ``confidential business

information'' includes ``proprietary information'' within the meaning

of section 777(b) of the Tariff Act of 1930 (19 U.S.C. 1677f(b)).

Nonnumerical characterizations of numerical confidential

business information (e.g. discussion of trends) will be treated as

confidential business information only at the request of the submitter

for good cause shown.

(2) Nondisclosable confidential business information is

confidential business information that is privileged, classified, or

specific information of a type for which there is a clear and

compelling need to withhold from disclosure. Special rules for the

handling of such information are set out in section 207.7 of this

chapter.

(b) Procedure for submitting business information in confidence.

(1) A request for confidential treatment of business information shall

be addressed to the Secretary, United States International Trade

Commission, 500 E Street SW., Washington, DC 20436, and shall indicate

clearly on the envelope that it is a request for confidential

treatment.

(2) In the absence of good cause shown, any request relating to

material to be submitted during the course of a hearing shall be

submitted at least three (3) working days prior to the commencement of

such hearing.

(3) With each submission of, or offer to submit, business

information which a submitter desires to be treated as confidential

business information, under paragraph (a)[(2)] of this section, the

submitter shall provide the following, which may be disclosed to the

public:

(i) A written description of the nature of the subject information;

(ii) A justification for the request for its confidential

treatment;

(iii) A certification in writing under oath that substantially

identical information is not available to the public;

(iv) A copy of the document (A) clearly marked on its cover as to

the pages on which confidential information can be found, [and] (B)

with information for which confidential treatment is requested clearly

identified by means of brackets; and (C) with information for

which nondisclosable confidential treatment is requested clearly

identified by means of double brackets (except when submission

of such document is withheld in accord with paragraph (b)(4) of this

section);

(v) A nonconfidential copy of the documents as required by

Sec. 201.8(d).

(4) The submission of the documents itemized in paragraph (b)(3) of

this section will provide the basis for rulings on the confidentiality

of submissions, including rulings on the confidentiality of submissions

offered to the Commission which have not yet been placed under the

possession, control, or custody of the Commission. The submitter has

the option of providing the business information for which confidential

treatment is sought at the time the documents itemized in paragraph

(b)(3) of this section are provided or of withholding them until a

ruling on their confidentiality has been issued.

(c) Identification of business information submitted in confidence.

Business information which a submitter desires to be treated as

confidential shall be clearly labeled ``confidential business

information'' when submitted, and shall be segregated from other

material being submitted.

(d) Approval or denial of requests for confidential treatment.

Approval or denial of requests shall be made only by the Secretary or

Acting Secretary. A denial shall be in writing, shall specify the

reason therefor, and shall advise the submitter of the right to appeal

to the Commission.

(e) Appeals from denial of confidential treatment. (1) For good

cause shown, the Commission may grant an appeal from a denial by the

Secretary of a request for confidential treatment of a submission. Any

appeal filed shall be addressed to the Chairman, United States

International Trade Commission, 500 E Street SW., Washington, DC 20436,

and shall clearly indicate that it is a confidential submission appeal.

An appeal may be made within twenty (20) days of a denial or whenever

the approval or denial has not been forthcoming within ten (10) days

(excepting Saturdays, Sundays, and Federal legal holidays) of the

receipt of a confidential treatment request, unless an extension notice

in writing with the reasons therefor has been provided the person

requesting confidential treatment.

(2) An appeal will be decided within twenty (20) days of its

receipt (excepting Saturdays, Sundays, and Federal legal holidays)

unless an extension, notice in writing with the reasons therefor, has

been provided the person making the appeal.

(3) The justification submitted to the Commission in connection

with an appeal shall be limited to that presented to the Secretary with

the original or amended request. When the Secretary or Acting Secretary

has denied a request on the ground that the submitter failed to provide

adequate justification, any such additional justification shall be

submitted to the Secretary for his consideration as part of an amended

request. For purposes of paragraph (e)(1) of this section, the twenty

(20) day period for filing an appeal shall be tolled on the filing of

an amended request and a new twenty (20) day period shall begin once

the Secretary or Acting Secretary has denied the amended request, or

the approval or denial has not been forthcoming within ten (10) days of

the filing of the amended request. A denial of a request by the

Secretary on the ground of inadequate justification shall not obligate

a requester to furnish additional justification and shall not preclude

a requester from filing an appeal with the Commission based on the

justification earlier submitted to the Secretary.

(f) Appeals from approval of confidential treatment. An appeal from

an approval of a request for confidential treatment of a submission

shall be made to the Secretary, United States International Trade

Commission, 500 E Street SW., Washington, D.C. 20436, shall comply with

Sec. 201.17 through Sec. 201.19 of the Commission's rules of practice

and procedure implementing the Freedom of Information Act, and shall

show that a copy thereof has been served upon the submitter.

(g) Granting confidential status to business information. Any

business information submitted in confidence and determined to be

entitled to confidential treatment shall be maintained in confidence by

the Commission and not disclosed except as required by law. In the

event that any business information submitted to the Commission is not

entitled to confidential treatment, the submitter will be permitted to

withdraw the tender unless it is the subject of a request under the

Freedom of Information Act or of judicial discovery proceedings.

(h) Scope of provisions. The provisions of Secs. 201.6(b) and 201.6

(d) through (g) shall not apply to adjudicative investigations under

Subchapter C, Part 210, of the Commission's rules of practice and

procedure.

2. Section 207.3 is proposed to be revised to require that notices

of petition (further dealt with in the proposed revisions to

Sec. 207.10 discussed below) and certain other documents be served, if

by mail, by overnight mail with Saturday delivery requested. This

revision, which recognizes the increasingly wide availability of

Saturday delivery, seeks to ensure that parties receive service of

important documents as rapidly as possible. Another revision would

clarify that recipients of confidential briefs must not rely on the

initial bracketing of such briefs in discussing the information

contained therein with persons not authorized to view business

proprietary information. Section 207.3 as revised would read as

follows:

Sec. 207.3 Service, filing, and certification of documents.

(a) Certification. Any person submitting factual information on

behalf of the petitioner or any other interested party for inclusion in

the record, and any person submitting a response to a Commission

questionnaire, must certify that such information is accurate and

complete to the best of the submitter's knowledge.

(b) Service. Any party submitting a document for inclusion in the

record of the investigation shall, in addition to complying with

Sec. 201.8 of this chapter, serve a copy of each such document on all

other parties to the investigation in the manner prescribed in

Sec. 201.16 of this chapter. If a document is filed before the

Secretary's issuance of the service list provided for in Sec. 201.11 of

this chapter or the administrative protective order list provided for

in Sec. 207.7, the document need not be accompanied by a certificate of

service, but the document shall be served on all appropriate parties

within two (2) days of the issuance of the service list or the

administrative protective order list and a certificate of service shall

then be filed. Notwithstanding section 201.16 of this chapter,

notices of petition, petitions, briefs, and testimony

filed by parties pursuant to Secs. 207.10, 207.15, 207.22, 207.23, and

207.24 shall be served by hand or, if served by mail, by overnight mail

(with Saturday delivery requested) or its equivalent.

Failure to comply with the requirements of this rule may result in

removal from status as a party to the investigation. The Commission

shall make available to all parties to the investigation a copy of each

document, except transcripts of conferences and hearings, business

proprietary information, privileged information, and information

required to be served under this section, placed in the record of the

investigation by the Commission.

(c) Filing. Documents to be filed with the Commission must comply

with applicable rules, including Sec. 201.8 of this chapter. If the

Commission establishes a deadline for the filing of a document, and the

submitter includes business proprietary information in the document,

the submitter is to file and, if the submitter is a party, serve the

business proprietary version of the document on the deadline and may

file and serve the nonbusiness proprietary version of the document no

later than one business day after the deadline for filing the document.

The business proprietary version shall enclose all business proprietary

information in brackets and have the following warning marked on every

page: ``Bracketing of BPI not final for one business day after date of

filing.'' The bracketing becomes final one business day after the date

of filing of the document, i.e., at the same time as the nonbusiness

proprietary version of the document is due to be filed. Until the

bracketing becomes final, recipients of the document may not

rely on it in discussing [divulge any part of] the

contents of the document to anyone not subject to the administrative

protective order issued in the investigation. If the submitter

discovers it has failed to bracket correctly, the submitter may file a

corrected version or portion of the business proprietary document at

the same time as the nonbusiness proprietary version is filed. No

changes to the document other than bracketing and deletion of business

proprietary information are permitted after the deadline. Failure to

comply with this paragraph may result in the striking from the record

of all or a portion of a submitter's document.

3. Section 207.7 is proposed to be revised to permit party

representatives to apply for disclosure of business proprietary

information under APO between the end of a preliminary investigation

and the beginning of a final. The revision would also make it easier

for a party who is changing representatives to transfer the case file

from one representative to the other.

Section 207.7 would further be revised to provide that, for each

law firm or consulting firm representing a party, only one lead

signatory would apply for disclosure of BPI under APO, and assume

ultimate responsibility for handling BPI within the firm. Other

professionals and clericals would obtain access to BPI under the APO

upon their addition to a roster. This revision would clarify who is

responsible for breaches of APO and streamline the procedure for

disclosing BPI under APO to professionals and clericals other than the

lead signatory. Professionals would still be subject to sanctions for

breach, and the lead signatory would be liable for the breaches of

anyone (professional or clerical) who breached an APO while under his

supervision.

Another revision would delete a number of strictures on the

handling of BPI that currently appear in Commission APOs in Title VII

investigations. These deletions reflect a shift away from directing

firms in detail how to run their offices. The phrase ``competitive

decisionmaking'' would be more fully defined in terms used by the court

in the case cited in the current rules.

In addition, the revised rule would define a sanctionable breach.

Three alternative definitions are proposed: (1) Any breach would be

sanctionable; (2) only breaches resulting in actual disclosure of BPI

would be sanctionable; and (3) only breaches resulting in actual harm

to the submitter of the BPI would be sanctionable. The Commission seeks

comments on the advisability of each of the three alternatives. The

revision would also codify the Commission's existing practice of taking

actions, such as issuing warning letters, that do not constitute

sanctions. Section 207.7 as revised would read as follows:

Sec. 207.7 Limited disclosure of certain business proprietary

information under administrative protective order.

(a) (1) Disclosure. Upon receipt of a timely application filed by

an authorized applicant, as defined in paragraph (a)(3) of this

section, which (i) describes in general terms the information

requested, and (ii) sets forth the reasons for the request (e.g., all

business proprietary information properly disclosed pursuant to this

section for the purpose of representing an interested party in

investigations pending before the Commission), the Secretary shall make

available all business proprietary information contained in Commission

memoranda and reports and in written submissions filed with the

Commission at any time during the investigation (except

nondisclosable confidential business information

[privileged information, classified information, and specific

information of a type which there is a clear and compelling need to

withhold from disclosure, e.g., trade secrets]) to the authorized

applicant under an administrative protective order described in

paragraph (b) of this section. The term ``business proprietary

information'' has the same meaning as the term ``confidential business

information'' as defined in Sec. 201.6 of this chapter.

(2) Application. An application under paragraph (a)(1) of this

section must be made by an authorized applicant on a form adopted by

the Secretary or a photocopy thereof. An initial

application on behalf of a petitioner, a respondent, or another party

must be made no later than the time that entries of appearance are due

pursuant to Sec. 201.11 of this chapter. In the event that two or more

authorized applicants represent one interested party who is a party to

the investigation, the authorized applicants must select one of their

number to be lead authorized applicant. The lead authorized applicant's

application must be filed no later than the time that entries of

appearance are due. Provided that the application is accepted, the lead

authorized applicant shall be served with business proprietary

information pursuant to paragraph (f) of this section. The other

authorized applicants representing the same party may file their

applications after the deadline for entries of appearance and

before the date established by the Secretary under

Sec. 207.7(c). [but at least five (5) days before the deadline

for filing posthearing briefs in the investigation, or the deadline for

filing briefs in a preliminary investigation, and shall] They

need not be served with business proprietary

information, unless subsequently one becomes the lead

authorized applicant.

(3) Authorized applicant. (i) Only an authorized applicant may file

an application under this subsection. An authorized applicant is:

(I) An attorney for an interested party which is a party to the

investigation;

(II) A consultant or expert under the direction and control of a

person under paragraph (a)(3)(i)(I) of this section;

(III) A consultant or expert who appears regularly before the

Commission and who represents an interested party which is a party to

the investigation; or

(IV) A representative of an interested party which is a party to

the investigation, if such interested party is not represented by

counsel.

(ii) Only one authorized applicant at each firm or office

representing a party may file an application.

(iii) In addition, an authorized applicant must

not be involved in competitive decisionmaking[, as defined in U.S.

Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984),] for an

interested party which is a party to the investigation.

Involvement in ``competitive decisionmaking'' includes

activities, associations, and relationships with an interested party

which is a party to the investigation that involve the prospective

authorized applicant's advice or participation in any of such party's

decisions made in light of similar or corresponding information about a

competitor (pricing, product design, etc.).

(4) Forms and determinations. (i) The Secretary may adopt, from

time to time, forms for submitting requests for disclosure pursuant to

an administrative protective order incorporating the terms of this

rule. The Secretary shall determine whether the requirements for

release of information under this rule have been satisfied. This

determination shall be made concerning specific business proprietary

information as expeditiously as possible but in no event later than

fourteen (14) days from the filing of the information, or seven (7)

days in a preliminary investigation, except if the submitter of the

information objects to its release or the information is unusually

voluminous or complex, in which case the determination shall be made

within thirty (30) days from the filing of the information, or ten (10)

days in a preliminary investigation. The Secretary shall establish a

list of parties whose applications have been granted. The Secretary's

determination shall be final for purposes of review by the U.S. Court

of International Trade under section 777(c)(2) of the Act.

(ii) Should the Secretary determine pursuant to this section that

materials sought to be protected from public disclosure by a person do

not constitute business proprietary information or were not required to

be served under paragraph (f) of this section, then the Secretary

shall, upon request, issue an order on behalf of the Commission

requiring the return of all copies of such materials served in

accordance with paragraph (f).

(iii) The Secretary shall release business proprietary information

only to an authorized applicant whose application has been accepted and

who presents the application along with adequate personal

identification; or a person on a roster described in

paragraph (b)(1)(iv) of this section who presents a copy of the

roster [statement] referred to in that paragraph

along with adequate personal identification.

(iv) An authorized applicant granted access to business proprietary

information in a preliminary investigation may, subject to paragraph

(c) of this section, retain such business proprietary information

during any final investigation corresponding to that preliminary

investigation, provided that the authorized applicant has not lost his

authorized applicant status (e.g., by terminating his representation of

an interested party who is a party). When retaining business

proprietary information pursuant to this paragraph, the authorized

applicant need not file a new application in the final investigation[,

but shall list in his entry of appearance in the final investigation

the authorized applicants in the same firm and the persons employed or

supervised by the authorized applicant who continue to participate in

the investigation].

(b) Administrative protective order. The administrative protective

order under which information is made available to the authorized

applicant shall require him to submit to the Secretary a personal sworn

statement that, in addition to such other conditions as the Secretary

may require, he shall:

(1) Not divulge any of the business proprietary information

obtained under the administrative protective order and not otherwise

available to him, to any person other than

(i) Personnel of the Commission concerned with the investigation,

(ii) The person or agency from whom the business proprietary

information was obtained,

(iii) A person whose application for access to business proprietary

information under the administrative protective order has been granted

by the Secretary, and

(iv) Other persons within the lead authorized applicant's

firm or office [, such as paralegals and clerical staff,] who

are employed or supervised by the authorized applicant; who have a need

thereof in connection with the investigation; who are not involved in

competitive decisionmaking for an interested party which is a party to

the investigation; and who are on the lead authorized

applicant's administrative protective order roster. This roster shall

be a list of those within the lead authorized applicant's firm who will

have access to business proprietary information disclosed under the

administrative protective order. It shall list attorneys, consultants,

and experts separately from nonprofessional staff. All those listed

must sign an acknowledgment that they have read the lead authorized

applicant's administrative protective order application and understand

its terms before being given access to business proprietary

information. The signature of an attorney, consultant, or expert shall

constitute an acknowledgment of responsibility for any breach of the

administrative protective order he or she might commit. The authorized

applicant may add or delete names from the roster at any time, but must

notify the Commission in writing of any such change within two days of

the change. [have submitted to the Secretary a signed

statement in a form approved by the Secretary that they agree to be

bound by the administrative protective order (t]The

authorized applicant shall be deemed responsible for [such persons']

the compliance with the administrative protective

order of any person on his or her roster[)];

(2) Use such business proprietary information solely for the

purposes of the Commission investigation then in progress or for

judicial or other review of such Commission investigation;

[(3) Not consult with any person not described in paragraph (b)(1)

of this section concerning such business proprietary information

without first having received the written consent of the Secretary and

the party or the attorney of the party from whom such business

proprietary information was obtained;

(4) Whenever materials (e.g., documents, computer disks, etc.)

containing such business proprietary information are not being used,

store such material in a locked file cabinet, vault, safe, or other

suitable container;

(5) Serve all materials containing business proprietary information

as directed by the Secretary and pursuant to paragraph (f) of this

section;

(6) Transmit all materials containing business proprietary

information with a cover sheet identifying the materials as containing

business proprietary information;

(7) Comply with the provisions of this section;

(8) Make true and accurate representations in the authorized

applicant's application and promptly notify the Secretary of any

changes that occur after the submission of the application and that

affect the representations made in the application (e.g., change in

personnel assigned to the investigation);

(9)] (3) Report promptly and confirm in writing

to the Secretary any breach of the administrative protective order; and

(4) [10)] Acknowledge that breach of the

administrative protective order may subject the authorized applicant to

such sanctions or other actions as the Commission

deems appropriate.

(c) Final disposition of material released under administrative

protective order. At such date as the Secretary may determine

appropriate for particular data, each authorized applicant shall return

or destroy all copies of materials released to authorized applicants

pursuant to this section and all other materials containing business

proprietary information, such as charts or notes [based on any such

information received under administrative protective order], and file

with the Secretary a certificate attesting to his personal, good faith

belief that all copies of such material have been returned or destroyed

and no copies of such material have been made available to any person

to whom disclosure was not specifically authorized.

(d) [Sanctions for b]Breaches

of administrative protective orders. (1)

Sanctionable breaches defined. A sanctionable breach is a breach of an

administrative protective order [that results in harm to the submitter

of the information] [the results in the actual disclosure of

confidential business information to an unauthorized person].

(2) Sanctions. A sanctionable

breach of an administrative protective order may subject an offender

to:

(i[1]) Disbarment from practice in any capacity

before the Commission along with such person's partners, associates,

employer, and employees, for up to seven years following publication of

a determination that the order has been breached;

(ii[2]) Referral to the United States Attorney;

(iii[3]) In the case of an attorney, accountant,

or other professional, referral to the ethics panel of the appropriate

professional association; and

(iv[4]) Such other administrative sanctions as

the Commission determines to be appropriate, including public release

of or striking from the record any information or briefs submitted by,

or on behalf of, the offender or the party represented by the offender,

and denial of further access to business proprietary information in the

current or any future investigations before the Commission.

(3) [For all other breaches,] the Commission may take such

other action (e.g., a warning letter), that it deems

appropriate.

(e) Sanction procedure. (1) The Commission shall determine whether

any person has violated an administrative protective order, and may

impose sanctions in accordance with paragraph (d) of this section.

Whenever the Commission has reason to believe that a person may have

breached an administrative protective order issued pursuant to this

section, the Secretary shall issue a letter informing such person that

the Commission has reason to believe a breach has occurred and that the

person has a reasonable opportunity to present his views on whether a

breach has occurred. If subsequently the Commission determines that a

breach has occurred, then the Secretary shall issue a letter informing

such person of that determination and that the person has a reasonable

opportunity to present his views on whether mitigating circumstances

exist and on the appropriate sanction to be imposed, but no longer on

whether a breach has occurred. Once such person has been afforded a

reasonable opportunity to present his views, the Commission shall

determine what sanction if any to impose.

(2) Where the sanction imposed is a private letter of reprimand,

the Secretary shall expunge the sanction from the recipient's record

two (2) years from the date of issuance of the sanction, provided that

(i) the recipient has not received another unexpunged sanction

pursuant to this section at any time prior to the end of the two year

period, and

(ii) the recipient is not the subject of an investigation for

possible breach of administrative protective order under this section

at the end of the two year period.

Upon the completion of such a pending breach investigation without the

issuance of a sanction, the original sanction shall be expunged. The

Secretary shall notify a sanction recipient in the event that the

sanction is expunged.

(f) Service. (1) Any party filing written submissions

(other than a petition) which include business

proprietary information to the Commission during an investigation shall

at the same time serve complete copies of such submissions upon all

authorized applicants specified on the list established by the

Secretary pursuant to paragraph (a)(4) of this section, and a

nonbusiness proprietary version on all other parties. All such

submissions must be accompanied by a certificate attesting that

complete copies of the submission have been properly served. In the

event that a submission is filed before the Secretary's list is

established, the document need not be accompanied by a certificate of

service, but the submission shall be served within two (2) days of the

establishment of the list and a certificate of service shall then be

filed.

(2) [A party may seek an exemption from the service requirement of

paragraph (f)(1) of this section for a particular submission by filing

a request for exemption with the reasons therefor along with the

submission. The Secretary shall not accept the submission into the

record but shall hold the submission until the request has been granted

or denied. The Secretary shall promptly respond to the request.] If a

party's request under paragraph (g) of this

section is granted, the Secretary shall accept the

[submission] information exempt from disclosure into

the record. [If a request is denied, the party shall serve the

submission within two (2) days of the denial and file a certificate of

service in the form described in paragraph (f)(1) of this section, and

the Secretary shall then accept the submission into the record. All

submissions which include business proprietary information must be

accompanied by a certificate attesting either that complete copies of

the submission have been properly served, or that a request for

exemption has been filed with the submission.] The party shall

serve the submission containing such information in accordance with the

requirements of Sec. 207.3(b) and paragraph (f)(1) of this section,

with the information redacted from the copies served.

(3) The Secretary shall not accept for filing into the record of an

investigation submissions filed without a proper certificate of

service. Failure to comply with paragraph (f) of this section may

result in denial of party status and such sanctions as the Commission

deems appropriate. Business proprietary information in submissions must

be dealt with as required by Sec. 207.3(c) [clearly

marked as such when submitted, and must be segregated from other

material being submitted].

(g) Exemption from disclosure. (1) In general.

Any person [submitting business proprietary information to the

Commission] may request exemption from the disclosure of [such]

business proprietary information under administrative

protective order, whether the person desires to include such

information in a petition filed under Sec. 207.10 of these rules, or

any other submission to the Commission during the course of an

investigation. [A request must be filed in writing with the

reasons therefor at the same time as the information being submitted is

filed.] Such a request shall only be granted if the Secretary finds

that such information is [privileged information, classified

information, or specific information of a type for which there is a

clear and compelling need to withhold from disclosure]

nondisclosable confidential business information as defined in

section 201.6 of this chapter. The request will be granted or denied

not later than thirty (30) days (ten (10) days in a preliminary

investigation) after the date on which the request is filed.

[In the case of a party, the request shall be treated as a request for

exemption from service under paragraph (f) of this section. In the case

of a nonparty, the Secretary shall promptly notify the submitter as to

whether the request has been approved or denied.]

(2) Request for exemption. A request for exemption from

disclosure must be filed with the Secretary in writing with the reasons

therefor. At the same time as the request is filed, one copy of the

business proprietary information in question must be lodged with the

Secretary solely for the purpose of obtaining a determination as to the

request. The business proprietary information for which exemption from

disclosure is sought shall remain the property of the requester, and

shall not become or be incorporated into any agency record until such

time as the request is granted. A request should, when possible, be

filed two business days prior to the deadline, if any, for filing the

document in which the information for which exemption from disclosure

is sought is proposed to be included. If the request is denied, the

copy of the information lodged with the Secretary shall promptly be

returned to the requester. Such a request shall only be granted if the

Secretary finds that such information is privileged information,

classified information, or specific information of a type for which

there is a clear and compelling need to withhold from disclosure. The

Secretary shall promptly notify the requester as to whether the request

has been approved or denied.

(3) Procedure if request is approved. If the request is approved,

the person shall file three versions of the submission containing the

nondisclosable confidential business information in question. One

version shall contain all business proprietary information, bracketed

in accordance with section 201.6 of this chapter and Sec. 207.3(c). The

other two versions shall conform to and be filed in accordance with the

requirements of section 201.6 of this chapter and Sec. 207.3, except

that the specific information as to which exemption from disclosure was

granted shall be redacted from the submission.

(4) Procedure if request is denied. If the request is denied, the

copy of the information lodged with the Secretary shall promptly be

returned to the requester. The requester may file the submission in

question without that information, in accordance with the requirements

of Sec. 207.3.

4. Section 207.10 is proposed to be revised to require petitioners

to serve on potential respondents a notice of petition and to serve the

confidential version of the petition on a party representative as soon

as a petitioner is notified that that representative has had its APO

application granted. Trade practitioners have expressed the concern

that party representatives whose APO applications have already been

approved do not gain access to BPI, and especially the confidential

version of the petition, quickly enough in preliminary investigations

to prepare for the preliminary conference and the postconference

briefs. The revision would quickly apprise potential respondents of the

filing of a petition and obligate petitioner to serve the confidential

version of the petition more rapidly than is currently done. Section

207.10 as revised would read as follows:

Sec. 207.10 Filing of petition with the Commission.

(a) Filing of the petition. Any interested party who files a

petition with the administering authority pursuant to section 702(b) or

732(b) of the Act, or section 303 of the Act in a case in which a

Commission determination under Title VII of the Act is required, shall

file copies of the petition, pursuant to Sec. 201.8 of this chapter,

with the Secretary on the same day the petition is filed with the

administering authority. If the petition complies with the provisions

of Sec. 207.11, it shall be deemed to be properly filed on the date on

which the requisite number of copies of the petition is received by the

Secretary. The Secretary shall notify the administering authority of

that date. Notwithstanding Sec. 201.11 of this chapter, a petitioner

need not file an entry of appearance in the preliminary investigation

instituted upon the filing of its petition, which shall be deemed an

entry of appearance, although the petitioner must file an entry of

appearance in any final investigation corresponding to that preliminary

investigation.

(b) Notice of petition. On the same day the petitioner

files a petition with the Commission, it shall serve a notice of

petition on each interested party named in the petition. The notice

must state the name of the petitioner and give the address of the

Commission. The notice must be served in accord with Sec. 207.3(b). A

certificate of service must be filed with the petition.

(c) Service of the petition. (1) The Secretary

shall promptly notify a petitioner when, before the establishment of a

service list under Sec. 207.7(a)(4), he or she approves an application

under Sec. 207.7(a). When practicable, this notification shall be made

by facsimile transmission. [A copy of the petition, or a

version thereof omitting business proprietary information, shall be

served by petitioner on those persons enumerated on the list

established by the Secretary pursuant to Sec. 201.11(d) of this chapter

within two (2) days of the establishment of the Secretary's list.] A

copy of the petition including all business proprietary information

shall then be served by petitioner on those

approved applicants in accord with Sec. 207.3(b) within two

(2) calendar days. The petitioner shall serve persons

enumerated on the list established by the Secretary pursuant to

Sec. 207.7(a)(4) (not already served) within two (2)

calendar days of the establishment of the Secretary's

list. Service shall be attested by a certificate of service as required

in Sec. 201.16(c)(2) of this chapter.

(2) A copy of the petition omitting business proprietary

information shall be served by petitioner on those persons enumerated

on the list established by the Secretary pursuant to Sec. 201.11(d) of

this chapter within two (2) calendar days of the establishment of the

Secretary's list.

(c) Amendments and withdrawals; critical circumstances. (1) Any

amendment or withdrawal of a petition shall be filed on the same day

with both the Secretary and the administering authority, without regard

to whether the requester seeks action only by one agency.

(2) When not made in the petition, any allegations of critical

circumstances under section 303, 703 or 733 of the Act shall be made in

an amendment to the petition and shall be filed as early as possible.

Critical circumstances allegations, whether made in the petition or in

an amendment thereto, shall contain information reasonably available to

petitioner concerning the factors enumerated in sections 705(b)(4)(A)

and 735(b)(4)(A) of the Act.

(d) Section 303(a)(1) petitions. If during an investigation under

section 303(a)(1) of the Act a Commission determination under Title VII

of the Act becomes required, the Commission shall issue an order

instructing petitioner to provide all information reasonably available

to it concerning the determination that the Commission is to make in

the investigation.

By order of the Commission.

Issued: April 15, 1994.

Donna R. Koehnke,

Secretary.

[FR Doc. 94-9632 Filed 4-20-94; 8:45 am]

BILLING CODE 7020-02-P