Antidumping and Countervailing Duty Proceedings: Administrative Protective Order Procedures; Procedures for Imposing Sanctions for Violation of a Protective Order

DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Parts 351 and 354

[Docket No. 960123011-8040-02]

RIN 0625-AA43

Antidumping and Countervailing Duty Proceedings: Administrative

Protective Order Procedures; Procedures for Imposing Sanctions for

Violation of a Protective Order

AGENCY: International Trade Administration, Commerce.

ACTION: Final rule.

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SUMMARY: The Department of Commerce (``the Department'') is amending

its regulations on administrative protective order (``APO'') procedures

in antidumping and countervailing duty proceedings to simplify and

streamline the APO administrative process and reduce the administrative

burdens on the Department and trade practitioners. The Department is

also amending the regulations to simplify the procedures for

investigating alleged violations of APOs and the imposition of

sanctions. These changes are made in response to and in cooperation

with the trade practitioners that are subject to these rules.

EFFECTIVE DATE: The effective date of this final rule is June 3, 1998.

This final rule will apply to all investigations initiated on the basis

of petitions filed on or after June 3, 1998, and other segments of

proceedings initiated after this date.

FOR FURTHER INFORMATION CONTACT: For further information contact Joan

L. MacKenzie or Mark A. Barnett, Office of Chief Counsel for Import

Administration, (202) 482-1310 or (202) 482-2866, respectively.

SUPPLEMENTARY INFORMATION:

General Background

APO Procedures

On February 8, 1996, the Department published proposed rules

governing procedures for providing access to business proprietary

information submitted to the Department by other parties in U.S.

antidumping (``AD'') and countervailing duty (``CVD'') proceedings.

Proposed Rule and Request for Comment (Antidumping and Countervailing

Duty Proceedings; Administrative Protective Order Procedures;

Procedures for Imposing Sanctions for Violations of a Protective

Order), 61 FR 4826 (``February Notice''). See also, Proposed Changes to

Administrative Protective Order Procedures in Antidumping and

Countervailing Duty Proceedings, APO Application Form and Standard APO,

59 FR 51559 (October 12, 1994) (``October Notice'').

The Department proposed these changes in APO procedures in

consultation with trade practitioners, who are the ones most directly

affected by these procedures. Specifically, Department staff consulted

with representatives of the International Law Section of the District

of Columbia Bar, the International Trade Committee of the Section of

International Law and Practice of the American Bar Association, the ITC

Trial Lawyers Association, and the Customs and International Trade Bar

Association. As a result of the consultations, the Department proposed

changes in the APO process to improve the process, to simplify and

streamline the process for all concerned, including the Department, and

at the same time to continue to ensure protection of business

proprietary information from unauthorized disclosure.

After analyzing and carefully considering all of the comments that

the Department received in response to the February Notice and after

further review of the provisions of the proposed rule, the Department

is publishing final regulations. These regulations improve, simplify,

and streamline the APO process significantly and, at the same time,

protect business proprietary information from unauthorized disclosure.

Effective Date

The new APO procedures, including the use of the revised

application for APO, form ITA-367 (5.98), will become effective June 3,

1998. They will apply to all investigations initiated on the basis of

petitions filed on or after June 3, 1998, and other segments of

proceedings initiated after this date. Segments of proceedings to which

these regulations do not apply will continue to be governed by the

regulations in effect on the date the petitions were filed or other

segments were initiated, to the extent that those regulations were not

invalidated by the URAA or replaced by the interim final regulations

published on May 11, 1995 (60 FR 25130 (1995)) and Sec. 351.105 of the

AD/CVD procedural regulations that the Department published separately

on May 19, 1997 (62 FR 27296), (hereinafter referred to as the May 19

Regulations). In these segments of proceedings, the Department will

require that parties use the old APO application form ITA-367 (3.89)

for all requests to amend their existing APOs. If all parties in these

segments of proceedings mutually agree to be bound by the new APO

regulations and procedures, the parties must file a joint agreement and

new applications for APO.

APO Sanctions

The Department is also amending its regulations concerning

sanctions for violations of APOs. The regulations governing the

imposition of sanctions for APO violations are set forth at 19 CFR Part

354. In the nine years since Part 354 was introduced, the Department

has investigated and resolved numerous allegations of violations of

APOs. Most charges have been settled, and none has resulted in a

hearing before a presiding official or a decision by the APO Sanctions

Board. Experience also has proven that, even if an individual has

technically violated the terms of an APO, it is not always appropriate

to impose a sanction. Rather, a warning may be appropriate in many

instances. The Department also has found that situations arise in which

the investigation can be shortened without limiting procedural rights.

Additionally, under current regulations, it is unduly cumbersome to

withdraw charges when the Department determines that they are not

warranted. Finally, the Department recognizes that an individual with

prior violations deserves to have his or her record cleared after a

period of time without further violations. Therefore, the Department is

amending Part 354 of its regulations to articulate a standard for

issuance of a warning of an APO violation and to address the other

situations described above.

The Department is amending the regulations to simplify the

procedures for investigating alleged violations and the imposition of

sanctions, establish criteria for abbreviating the investigation of an

alleged violation, include private letters of reprimand among the

sanctions available, and set a policy for determining when the

Department issues warnings instead of sanctions. Further, the

Department is revising the provisions dealing with settlement to make

them consistent with practice. The Department also is simplifying the

procedures for withdrawing charging letters. Finally, the amendments

add a sunset provision that codifies existing practice regarding the

rescission of charging letters.

[[Page 24392]]

Explanation of Particular Provisions

APO Procedures

The Department's AD regulations were contained in 19 CFR Part 353

and its CVD regulations were contained in 19 CFR Part 355. Parts 353

and 355 each contained separate provisions dealing with the treatment

of business proprietary information and APO procedures. The Department

consolidated the AD and CVD regulations and repealed existing Parts 353

and 355. See Antidumping Duties; Countervailing Duties; Final rule, 62

FR 27295 (May 19, 1997). We have drafted the regulations dealing with

APO procedures in light of this consolidation. Accordingly, these

regulations will be contained in 19 CFR Part 351, subpart C. More

specifically, with the exception of the definitional provisions of

Sec. 351.102, the APO procedures will be contained in 19 CFR 351.304,

305, and 306. The procedures for imposing sanctions for violation of a

protective order are contained in 19 CFR 354.

Definitions

Section 351.102 is a definitional section, based on previous 19 CFR

353.2 and 355.2. It was published separately with the May 19

regulations. Insofar as APO procedures are concerned, we added

definitions of two new terms, now contained in the administrative

protective order. Because these definitions apply to APO procedures, we

are discussing them here.

The first term, applicant, is defined as an individual

representative of an interested party that has applied for access to

business proprietary information under an APO. The second term,

``authorized applicant,'' is defined as an applicant that the Secretary

has authorized to receive business proprietary information under an

APO, and is a term borrowed from the practice of the U.S. International

Trade Commission (``ITC'').

One commenter noted that the definition of ``applicant'' contained

in the Proposed AD/CVD Procedural Regulations was inconsistent with the

description of that definition in the preamble to the February Notice.

This commenter also suggested that a definition of ``representative''

be added to the regulations.

We revised the definition of ``applicant'' to make it consistent

with the description of that term provided above. The term

``representative'' was defined in the model APO published with the

February Notice. We have revised that definition to refer to an

individual, enterprise or entity acting on behalf of an interested

party.

Administrative Protective Order Unit and Central Records Unit

Section 351.103 defines the responsibilities of the Central Records

Unit and the Administrative Protective Order Unit, both of which play a

role protecting business proprietary information. The APO Unit was

established with the reorganization of the Department that became

effective July 1, 1996. Under the reorganization, the APO function is

consolidated under the Director for Policy and Analysis, and is managed

by a Senior APO Specialist who leads the APO Unit. The Senior APO

Specialist is responsible for directing the Department's handling of

business proprietary information.

The Administrative Protective Order Unit and the Dockets Center of

the Central Records Unit have recently been relocated to shared space

in room 1870. Because of the proximity of the two offices, business

proprietary information released by the APO Unit to authorized

representatives is conducted through the Dockets Center. Because the

relocation of the Dockets Center occurred after the publication of the

AD/CVD procedural regulations, we are taking this opportunity to amend

Sec. 351.103 to reflect these changes. Pursuant to Presidential order,

security has been increased in Federal office buildings and delivery

couriers are no longer permitted access to the Herbert C. Hoover

Building (HCHB). Consequently, Import Administration has created the

Dockets Center in Room 1870. The Dockets Center is accessible directly

from the 15th Street courier's entrance to HCHB. Prior to being allowed

in the building at this entrance all packages are scanned by

Departmental security personnel. APO materials are picked up at this

entrance from the APO Unit.

Section 351.304 Establishing Business Proprietary Treatment of

Information.

Section 351.304 sets forth rules concerning the treatment of

business proprietary information in general, and provides persons with

the right to request that certain information be considered business

proprietary or be exempt from disclosure under APO.

Customer Names

One commenter noted that section 777(c)(1)(A) of the Tariff Act of

1930, as amended, (``Act'') protects customer names from disclosure

under APO in an investigation only until an order is published or the

investigation is suspended or terminated, and suggested that the

regulation should be revised to reflect this. We have not revised the

regulation. The statute does not require the Department to disclose

customer names under APO following publication of an order or following

suspension or termination of the investigation. If the Department's

final determination is challenged, parties may obtain access to

customer names under the terms of a judicial protective order. Absent

such litigation, we do not believe it necessary or appropriate to

require parties to disclose additional information under protective

order after an investigation has been completed, suspended or

terminated.

Identification of Business Proprietary Information

Paragraph (b) of Sec. 351.304 addresses the identification and

marking of business proprietary information in submissions to the

Department.

One commenter argued that the Department should clarify how the

requirement to mark business proprietary information applies to

materials in exhibits such as printouts, drawings, photographs,

excerpts from brochures and other similar materials. The commenter

pointed out that such materials are not always clearly identified as

business proprietary, leaving the recipient to refer to the public

version to determine whether any particular data are in fact claimed to

be confidential.

The Department agrees that all business proprietary information

should be marked in accordance with the regulations. This includes all

verification exhibits. It is in the interest of all parties to prevent

inadvertent APO violations that can occur when marking is incomplete or

inaccurate. We recognize that marking printouts and voluminous exhibits

presents challenges. Printouts may consist almost entirely of business

proprietary information, with public information limited to certain

headings or fields. In such cases, it may be easier for an authorized

applicant to distinguish between public and proprietary information by

reviewing the public version rather than searching for brackets in a

document that contains nearly all business proprietary information.

Moreover, because bracketing may be revised by a party within one day

of the date of filing (see below), authorized applicants are encouraged

to confirm their identification of public information by comparison to

the public version source in order to avoid an inadvertent release of

business proprietary information.

If a party objects to the submitting person's claim for business

proprietary

[[Page 24393]]

treatment, the objection must be submitted in writing. The APO Unit is

the point of contact for examining and resolving the issue whether

information that is claimed as proprietary meets the standards in

Sec. 351.105 of the AD/CVD procedural regulations that the Department

published separately on May 19, 1997.

Public Versions

Paragraph (c) of Sec. 351.304 concerns the public version of a

business proprietary submission, provides for a one-day lag rule (see

also Sec. 351.303(c)(2)), and addresses corrections to errors in

bracketing business proprietary information. We reiterate that the

Secretary will enforce vigorously the requirement for public summaries,

and will grant claims that summarization is impossible only in

exceptional circumstances. To assist in ensuring consistent enforcement

of the Department's requirements for public summarization of numerical

data and narrative portions of submissions, the APO Unit is the point

of contact for examining and resolving complaints about inadequate

public summaries.

One-Day Lag Rule

The one-day lag rule follows existing practice by permitting

parties to file a public version of a document containing business

proprietary information one business day after the due date of the

business proprietary version of the document. This practice is known as

the ``one-day lag'' rule. Under current practice, submitting persons

may correct the bracketing of information in the business proprietary

version up to the deadline for submission of the public version (i.e.,

they have one day in which to correct bracketing). The Department

proposed to slightly modify the one-day lag rule to require a party to

file the final business proprietary version of the document at the same

time as the submitting party files the public version of the document.

The specific filing requirements are contained in Sec. 351.303 of the

AD/CVD Procedural Regulations that the Department published separately

on May 19, 1997. Comments on this provision were addressed in those

regulations.

One commenter expressed concern regarding improper disclosure of

APO protected information and the Department's statement that non-

bracketed information will be treated as public information once

bracketing has become final. We believe, however, that the commenter

misunderstood the Department's statement. The statement only pertains

to a party's own business proprietary information contained in a

document it has submitted. The Department will always take and require

immediate corrective action when information subject to an APO has been

improperly disclosed and discovered in a reasonable amount of time.

Summarization of Numerical Data

One commenter argued that public summarization of numerical data

should not be required, because the ITC does not require it. Other

commenters requested that specific guidelines for summarization of

numerical data be included in the regulation. Some commenters requested

greater flexibility in ranging numbers that are very large or very

small.

As one commenter recognized, a public summary, which is addressed

in paragraph (c)(1), is required by section 777(b)(1)(B) of the Act and

Article 6.5.1 of the Agreement on Implementation of Article VI of the

General Agreement on Tariffs and Trade 1994 (``AD Agreement''). Public

summarization of numerical data is crucial to the ability of parties to

participate in the Department's proceedings. Without adequate public

summarization, interested parties without APO access will not be able

to participate meaningfully in the Department's proceedings. The

Department, therefore, will continue to require summarization of

numerical data.

While there may be some benefits to consistent treatment of

business proprietary information between the Department and the ITC,

there are differences in each agency's mission that justify individual

practices. Summarization of company-specific numerical information at

the ITC is more difficult because the information concerns a company's

performance using ``macro'' numbers and projected data. Moreover, in

most cases, the ITC provides aggregate data where such information

would not reveal an individual company's business proprietary

information. It is this aggregate data, which is often available to the

public, which is most relevant to the ITC's analysis and

determinations. Information in the Department's proceedings, on the

other hand, is often transaction-specific, ``micro'' information. Such

information would be difficult to aggregate across companies and such

aggregate data would be of almost no relevance to the Department's

analysis and the public's understanding of that analysis. Therefore, it

is preferable to continue to require that such information be ranged or

indexed.

Omission of specific criteria for public summarization of numerical

data previously contained in Secs. 353.32(b)(1) and 355.32(b)(1) was an

oversight. We are including the criteria for adequate summarization in

Sec. 351.304(c)(1) of these regulations. The Department has always

allowed an exception to the public summarization requirement when it

does not protect business proprietary information from disclosure, such

as with very small or very large numbers. We will continue to permit

such exceptions on a case-by-case basis in accordance with the

requirements of Sec. 351.304(c)(1).

Summarization of Narrative Portions of Submissions

One commenter argued that requiring a public summary of the

narrative portion of a submission is a change in policy not required by

the Uruguay Round Agreements Act (URAA) and is too burdensome. The

commenter asserted that the proposed regulation will add hundreds of

hours and thousands of dollars to the costs of participating in these

cases. Finally, the commenter stated that the proposed regulation

appears to create a presumption that all business proprietary

information is public unless proven otherwise, which reverses agency

practice designed to protect business proprietary information against

disclosure.

The commenter is mistaken that the Department's regulation

constitutes a change in practice. The Department has consistently

required a public summary of the narrative portion of a submission

containing business proprietary information.

Laws affecting disclosure of information by the federal government

generally are pro-disclosure. The United States has the most

transparent antidumping and countervailing duty procedures in the

world. Protection of business proprietary information is a narrow

exception to the requirement for disclosure and the preference for

transparency. For these reasons, the regulations require parties to

demonstrate that business proprietary information should be withheld

from disclosure, rather than the reverse. There is a presumption that

business proprietary information can be publicly summarized to permit

meaningful participation by a party that does not have access to

business proprietary information under APO.

Summarization of Business Proprietary Information of Other Parties

Three commenters raised concerns whether Sec. 351.304(c)(1)

requires authorized applicants to create public summaries of business

proprietary information submitted by other parties.

[[Page 24394]]

It does not. The Department has never required authorized applicants to

publicly summarize the business proprietary information of another

party and the Department does not intend to change that practice. In

fact, Sec. 351.304 (c)(1) states that a submitter should not create a

public summary of business proprietary information of another person.

Nonconforming Submissions

Paragraph (d) of Sec. 351.304 deals with nonconforming submissions,

i.e., submissions that do not conform to the requirements of section

777(b) of the Act and paragraphs (a), (b), and (c) of Sec. 351.304.

One commenter expressed concern that this provision might be abused

by parties making unwarranted claims of a clear and compelling need to

withhold business proprietary information from disclosure under APO

merely to delay release of that information and thereby imperil the

ability of other parties to participate in the proceeding in a timely

fashion. Although we appreciate the concerns of the commenter, we do

not believe that revision of the regulation is necessary. In most

cases, the Department has been able to make determinations as to the

status of information in much less than 30 days, and we expect that to

continue to be the case. As written, the regulation provides greater

flexibility for those determinations which may require more time for

decision.

The Department does not believe that the regulation, as drafted,

will lead to significant abuse. The Department's current experience has

involved few situations of abuse. To the extent that baseless claims

for non-release of information do occur, the Department retains the

authority to deal with them expeditiously.

Another commenter proposed that the Department amend this

regulation to permit the Secretary to return any part of a submission

that does not meet the requirements of the regulations. We do not

agree. For the same reasons the Department revised the one-day lag rule

to require a new complete submission of a document that required

correction, we also will require a complete new submission of any

document returned because parts of it are defective.

Section 351.305 Access to Business Proprietary Information

Section 351.305 establishes procedures for obtaining business

proprietary information under APO, including a new procedure based on

the use of a single APO for each segment of a proceeding.

The Revised APO

Paragraph (a) of Sec. 351.305 sets forth a new procedure in which

the Secretary will place a single APO on the record for each segment of

an AD or CVD proceeding, within two days after a petition is filed, or

an investigation is self-initiated, or five days after the initiation

of any other segment. (``Segment of the proceeding'' is defined in

Sec. 351.102 as a portion of the proceeding that is reviewable under

section 516A of the Act.) All authorized applicants will be subject to

the terms of this single APO. This new procedure will streamline the

APO process dramatically, and will expedite the issuance of APOs and

the disclosure of information to authorized applicants. Commenters

strongly endorsed this new procedure, and agree it will streamline the

APO process and expedite the issuance of APOs and the disclosure of

information to authorized applicants.

APO Requirements

Paragraph (a) of Sec. 351.305 also sets forth the requirements that

are to be included in the APO and to which all authorized applicants

must adhere. The Department proposed to eliminate from the APO detailed

internal procedures that firms were required to follow to protect APO

information from unauthorized disclosure. In paragraph (a)(1), the

Department proposed to permit each applicant to establish its own

internal procedures. All commenters agreed with this proposal, and we

have adopted it in these final regulations.

Notification of Change of Facts

Paragraph (a)(2) of Sec. 351.305 requires an authorized applicant

to notify the Secretary of any changes in the facts asserted by the

authorized applicant in its APO application. Paragraph (a)(2) does not

require certification of these facts. Paragraph 6 of the proposed APO,

however, would have required the authorized applicant to provide, at

the conclusion of a segment of the proceeding, upon the departure of an

authorized applicant from a firm, or when an individual no longer will

have access to APO information, a certification that attests to the

individual's compliance with the terms under which such access is

granted. Two commenters questioned the necessity for such individual

certifications. They argued that the thrust of the Department's new

rules is to permit firms to develop their own internal procedures to

protect business proprietary information, rather than for the

Department to ``micro-manage'' APO issues. Thus, they asserted, firms

will have internal procedures to ensure that persons leaving a firm,

for example, destroy or return any documents containing business

proprietary information. They point out that under the procedure

proposed by the Department, applicants already sign an APO application

individually, and the additional certification is therefore

superfluous. Moreover, commenters argued, the Court of International

Trade's (CIT) judicial protective orders permit a single certification,

and there is no reason to follow two different procedures for appellate

and administrative proceedings.

The Department agrees. Paragraph (a)(2) continues to require a

party to notify the Department of any changes in the facts asserted by

an authorized applicant in its application, but we have deleted the

requirement for certification at the end of the proceeding segment in

paragraph 6 of the APO. Authorized applicants are required to notify

the Department of any possible violation of the APO; the additional

certification is redundant. The Department presumes all authorized

applicants are complying with the terms of the APO until we determine

through an investigation under Part 354 that a violation of an APO has

occurred. Thus we have retained the requirement that parties notify the

Department and other parties of changes, but have removed from

paragraph 6 of the APO the requirement that every individual certify

its compliance with the regulations at the close of the person's

participation under the APO.

Notification of Destruction of Business Proprietary Information

Paragraph (a)(4), now renumbered as paragraph (a)(3), of

Sec. 351.305 requires the destruction of business proprietary

information when a party is no longer entitled to it, normally at the

close of a segment of a proceeding. Paragraph 7 of the APO also

required an individual certification from each authorized applicant

that it complied with the terms of the APO. For the reasons stated

above, we agree this certification is unnecessary. We presume that an

authorized applicant will comply with the terms of the APO requiring

destruction of business proprietary information at a designated time.

We will continue to require, however, notification to the

Department of destruction of business proprietary information. Parties

will be able to keep certain business proprietary information for more

than one segment of a proceeding, and discipline in tracking and

destroying information is more

[[Page 24395]]

important than ever. Therefore the Department will continue to hold

parties accountable for timely destruction of material when no longer

authorized by the APO to have it.

One commenter suggested that the failure to return or destroy APO

material is a procedural issue and should not be viewed as constituting

a violation of the APO if not satisfied. We disagree. Until business

proprietary information is destroyed, there is a risk of disclosure.

The destruction of business proprietary information material is

important to prevent unauthorized disclosure. It is one of the few

specific requirements in the regulations. While the failure to return

or destroy may not result in actual disclosure of business proprietary

information, and in certain circumstances may only result in a warning,

it is clearly a violation of the regulations and the APO.

The Department proposed that an authorized applicant be required to

destroy business proprietary information that the applicant is not

authorized to retain within a thirty-day time period after the

expiration of the time for filing for a judicial or binational panel

review of the last segment for which the authorized applicant may

retain the information. Thirty days should cover most contingencies,

but the Department will be willing to grant extensions for good cause

shown. Commenters supported this proposal and we will incorporate it

into each APO, which will set specific deadlines on a case-by-case

basis.

Electronic Data

Paragraph 3 of the APO places one restriction on the use of

business proprietary information contained in electronic form; the

information can not be accessible by a modem. We are restricting access

to electronic information by modem, but not requiring any specific

technical restrictions, instead leaving the method to be used to the

individual authorized applicant. This proposal was supported by

commenters. Commenters suggested a revision of the language of the

paragraph to clarify this requirement, which we have incorporated into

paragraph 3 of the APO.

Independent Contractors

The definition of ``support staff'' contained in the APO permits

the use of independent contractors to perform photocopying and other

production tasks involving APO information, provided that the

independent contractors perform their work on the premises of the

authorized applicant (e.g., at the firm), and the independent

contractors work under the supervision of an authorized applicant.

Commenters requested a clarification that the Department also will

allow parties to use employees or subcontracted individuals (e.g.,

courier services) to pick up or deliver APO information released by the

Department, and to deliver APO information to other parties. One

commenter also requested a clarification that ``independent

contractors'' includes part-time employees. We agree that support staff

and independent contractors can be used for all delivery functions and

that ``independent contractors'' includes part-time employees.

In order to guard against unauthorized disclosure, however, the

Department will continue its current practice of releasing APO

information only if the employee or independent contractor presents a

picture ID and a letter of identification from the firm of the

authorized applicant that authorizes the Department to release the APO

information to that particular individual.

Remand Proceedings

The Department proposed that the APO permit access to new business

proprietary information submitted in the course of a remand during

litigation involving the segment of the proceeding in which the initial

APO was issued. Parties no longer will have to apply separately for

access under an APO during a remand proceeding. Commenters supported

this proposal. The APO issued in each proceeding will reflect this

practice.

APO Applications

Paragraph (b) of Sec. 351.305 deals with the APO application

process itself, including permitting parties to use two independent

representatives.

Multiple Authorized Applicants

Under current practice, the Department generally allows only one

representative of a party to have access to business proprietary

information under an APO. In response to requests from parties to

proceedings, the Department proposed that two independent

representatives of a party be allowed APO access, with one

representative being designated as the lead representative. We also

proposed granting APOs separately to non-legal representatives, who

otherwise qualify to receive an APO, only if they had a significant

practice before the Department. The purpose of this proposal was to

ensure that effective sanctions could be imposed to deter APO

violations. The Department will consider requests that more than two

independent representatives be designated as authorized applicants on a

case-by-case basis.

Commenters agreed with this proposal, and requested that the

Department clarify that the lead authorized applicant will not be

liable for APO infractions committed by a separately authorized

applicant. We agree. Authorized applicants are responsible for

violations committed by any person in the same firm, but not for

violations committed by an individual at another entity that applied

for APO access separately. The lead representative would not be

responsible for APO violations committed by the separately authorized

applicant.

Application for an APO

Paragraph (b)(2) of Sec. 351.305 establishes a ``short form''

application that applicants can generate from their own word-processing

equipment. An applicant must acknowledge that any discrepancies between

the application and the Department's APO placed on the record will be

interpreted in a manner consistent with the Department's APO. Parties

agreed with this proposal and we have adopted it in paragraph (b)(2).

APO Application Coverage

Paragraph (b)(2) of Sec. 351.305 also provides that an applicant

must apply to receive all business proprietary information on the

record of the particular segment of the proceeding in question. A party

no longer may apply to receive only selected parties' business

proprietary information. The purpose of this requirement is to

eliminate the need for parties to prepare separate APO versions of

submissions for each of the different parties involved in a proceeding

and to reduce the number of APO violations that occur through the

inadvertent service of a document containing business proprietary

information to parties not authorized to receive it. In order to avoid

forcing parties to receive submissions in which they have no interest,

however, a party may waive service of business proprietary information

it does not wish to have served on it by another party. Thus, for

example, Respondent A may waive its right to be served with a copy of

the business proprietary version of Respondent B's questionnaire

response. Nonetheless, if Respondent A receives any of respondent B's

proprietary information from any party by mistake, no APO violation

will have occurred. Commenters generally supported the proposal,

because it eases the burden on

[[Page 24396]]

submitters and reduces the likelihood of inadvertent APO violations.

One commenter strongly objected to the proposal as inconsistent

with section 777 of the Act and burdensome on respondents. The

commenter asserted that substitution of a waiver procedure for party-

specific submissions is inadequate because respondents are nonetheless

required to accept submissions by petitioners that contain the business

proprietary information of several parties, including business

proprietary information that the respondents may have had no reason to

request. It asserted that by requiring respondents' representatives to

accept from petitioners' representatives documents containing multi-

party business proprietary information, the Department is unnecessarily

shifting the burden and responsibility of complying with APO procedures

from petitioners to respondents. Furthermore, where counsel is served a

business proprietary document and then redacts only certain portions

designated confidential by the filing party before transmitting the

document to his client, there is no check on whether a proper redaction

has been made. Neither the Department nor other parties have access to,

or even knowledge of, the specially redacted version, and this

procedure will heighten the risk of inadvertent disclosure of business

proprietary information. Instead, the commenter argues, if the public

summaries prepared by parties meet Commerce guidelines, the information

contained in any public version of a filed document should be

sufficient to inform a party already knowledgeable of the proprietary

data represented by the public summary.

The Department recognizes that these rules place a new burden on a

representative to ensure that when it receives a submission with

business proprietary information from multiple parties, it takes steps

to ensure no business proprietary information of another party is

disclosed to its client. Each authorized applicant has pledged to do

this when he or she signs the application for access to business

proprietary information under an APO. The rules mitigate this

additional burden by requiring parties to clearly identify the person

to whom each item of business proprietary information pertains.

Although adequate public summaries are helpful, they are not a

substitute for a full discussion of a party's own business proprietary

information. Public summaries serve to assist a party's participation

where other parties' business proprietary information is involved.

Nothing in the statute prohibits these procedures. Section 777 of

the Act requires the Department to ``make all business proprietary

information presented to, or obtained by it, during a proceeding * * *

available to interested parties who are parties to the proceeding under

a protective order * * *.'' On balance, we believe the procedures

adopted will spread the burden for protecting business proprietary

information and reduce inadvertent disclosure of business proprietary

information.

Deadline for Application for APO Access

Paragraph (b)(3) of Sec. 351.305 concerns the deadline for applying

for access to business proprietary information under APO. In deciding

the question of APO application deadlines, the Department balances the

need to provide maximum access by parties to APO information with the

need to minimize the burden on the Department in processing APO

applications, as well as the burden on parties and the Department that

have to serve late applicants with APO information placed on the record

before a late APO is granted. We proposed in paragraph (b)(3) to

encourage parties to submit APO applications before the first

questionnaire response is filed, but to permit parties to submit

applications up to the date on which case briefs are due.

Two commenters requested that the Department have no deadline for

APO applications. They did not provide any reason why a representative

would need to have access to the entire record after the time case

briefs are filed. Under Sec. 351.309(b), which was published separately

with the May 19 regulations, written argument will not be accepted

after case or rebuttal briefs are filed unless requested by the

Secretary. A party can always provide a representative with the party's

own data, and represent the party before the Department during

disclosure of that party's calculations. Providing a new representative

with a record after the close of comments would be unduly burdensome

for the Department staff which has extremely tight deadlines for

issuing the final determination. A representative can obtain the entire

record under judicial protective order during litigation if necessary.

Therefore, we have incorporated the proposed deadline, the day case

briefs are due, into the regulations.

We also have taken into account the burden imposed on parties by

APO applications that are filed after major submissions have been made

by other parties to the proceeding. Under current rules, parties have

only two days in which to serve an authorized applicant that obtained

its APO late in the proceeding with APO information that already has

been placed on the record. Under the deadline set forth in paragraph

(b)(3), the burden on parties may increase. We therefore proposed that

parties have five days in which to serve late APO applicants. In

addition, we required that late applicants be required to pay the costs

associated with the additional production and service of business

proprietary submissions that were served on other parties earlier in

the proceeding. Commenters supported these proposals and they are

incorporated into Sec. 351.301, which was published separately.

The Department reemphasizes that it will not allow an APO

application filed later in the proceeding to serve as the basis for

extending any administrative deadline, such as a briefing or hearing

schedule.

Approval of the APO Application and the APO Service List

Paragraph (c) of Sec. 351.305 deals with the approval of an APO

application. The Department proposed to approve an application within

two days of its receipt in an investigation and within five days in

other AD and CVD proceedings, unless there is a question concerning the

eligibility of an applicant to receive access under APO. In that case,

the Secretary will decide whether to approve the application within 30

days of receipt of the application. We amended the regulation to

provide for a single five-day deadline to provide parties a reasonable

time to comment on applications in all instances.

Commenters generally supported the Department's proposal because it

will facilitate the timely completion of investigations and

administrative reviews by providing expedited access to business

proprietary information to all parties to a proceeding. They suggested

that the Department's regulations also indicate that similarly

expedited treatment will be provided to applications for amendments to

APOs. The Department considers an application for an amendment to be

subject to the same procedures as the original application.

Some commenters expressed concern that approving APO applications

so quickly may create problems. In many cases, the APO application will

be served by mail on other interested parties, and commenters were

concerned that the Department could approve the application before the

[[Page 24397]]

parties have an opportunity to comment on it. When the APO material is

already in the hands of an approved applicant who has filed for access

for additional individuals, commenters asserted it is imperative that

parties be informed of the existence of the amended application, and be

given time to react, before APO material is released to any additional

individuals. The problem is of special concern to commenters if the

application seeks to add in-house counsel to the APO.

Although the Department agrees that the concerns raised by these

commenters have merit, we must balance these concerns with the need of

applicants to receive APO material expeditiously. We note that the

Department rarely receives objections to applications to amend APOs.

However, in recognition of the concerns raised, we intend to approve

applications to amend the Department's APO service list to include an

additional authorized applicant at the end of the five-day period. If a

representative wishes to have its amendment approved before the five-

day deadline, it should submit its application with a statement that

all other parties to the proceeding have consented to the application.

Commenters proposed that if the APO applicant needs immediate

access, service on the other parties could be made by hand delivery or

overnight mail, by facsimile, or by E-mail. Alternatively, the

applicant could file the application as a ``consent motion''. If there

is no need for immediate access, commenters proposed that parties be

permitted to serve by mail and that Department approval be held for

five days to ensure that the other parties have had an opportunity to

respond. Commenters also proposed that the regulations also should

state that objections to applications must be filed within two days of

receipt of the application and served by hand on the applicant.

One commenter, on the other hand, was concerned that parties to a

case should not be able to delay release of proprietary documents

merely by the objection, on whatever grounds, to the eligibility of an

applicant to obtain information. Rather, the commenter proposed that

the Department enunciate certain grounds that might serve as the proper

basis for an objection, such as affiliation with the party in question,

prior violations of protective orders or other ethical rules, or a

potential conflict of interest that exists based on work done either

within the government or at another firm involving the same or a

similar matter. Commenters did not want parties to have the opportunity

to delay approval of applications by minor objections, such as an

objection to the number of applicants.

The Department recognizes that the current regulations permit a

party to hand-serve an APO application (or an application for an

amendment to the APO service list) on the Department, while serving the

parties by mail. The Department could approve an application before

parties even received notice that the application had been filed. We

are therefore revising Sec. 351.305(b)(2) to require parties to serve

an APO application (including applications for amendments) on the

Department and on the parties in the same manner, whether by hand or by

mail. We are also extending the deadline in Sec. 351.305(c) for

approving an APO application (including an application to amend the APO

service list) to five days from two for all segments of proceedings.

These procedures should provide expedited approval of APO access while

preserving the rights of parties to comment on APO applications.

Although the Department may approve an APO application on or before the

five-day deadline, a party objecting to an APO application may elect

not to serve its business proprietary information on the applicant to

which it is objecting until the Department has addressed the objection

and has made a decision whether to grant the applicant access to the

objecting party's proprietary information.

There are few bases on which a party can legitimately object to

granting an APO so long as the applicant meets the conditions

established in the APO application and APO. An objection based on the

number of applicants would generally be considered frivolous; the

Department does not interfere with a party's choice of representation

or staffing. The only area where Import Administration has the

authority to deny an individual the right to practice before it

involves a finding, pursuant to our very detailed APO violation

regulations, that a party has violated a protective order and that the

violation warrants the extreme sanction of a ban from practice before

Import Administration. An allegation in this area would require a

detailed investigation. The restriction on practice before the

Department because of an APO violation would be imposed through the APO

violation proceeding, not through an objection to an APO application.

Import Administration does not have authority to address the post-

employment restrictions contained in 18 U.S.C. 207. The authority to

interpret post-employment restriction resides with the Assistant

General Counsel for Administration at the Department of Commerce. Nor

does the Department have the authority to advise on the application of

state professional conduct rules to a party's practice before the

Department. Any allegations of violations of the rules of a particular

bar association must be raised with that organization.

Alternative Methods of APO Approval

In the October Notice, several commenters suggested alternative

methods of approving APOs, such as the creation of a pre-approved

roster of members of a representative's firm, or permitting a lead

signatory in a firm to grant access to the other professionals within

the firm. The Department did not adopt either alternative because there

may be facts peculiar to a particular AD or CVD proceeding or a segment

of a proceeding that render an otherwise eligible applicant ineligible,

and the roster approach would preclude a party from raising legitimate

objections to the approval of an APO application. Likewise, the lead

signatory approach would preclude parties from exercising their right

to object, for good cause, to the disclosure of APO information to a

particular individual.

Two commenters continued to support the roster system. One pointed

out that such a procedure would still allow Commerce to review the

individual eligibility of each applicant and would allow far greater

flexibility on the part of the participating firm. These commenters did

not address the points raised by the Department in opposing the

proposal, such as notice and certainty. As noted above, commenters

expressed concern that they have an advance opportunity to comment on

an APO application before access is granted. They were concerned that

the Department might approve an APO application before parties had had

a chance to review it because of the short two-day deadline the

Department proposed for approving an application. We are therefore not

adopting either alternative method of approving APO applications. The

maximum five-day deadline for approving an application should enable

parties to add representatives without undue delay.

Department Notification of APO Service List

If an application is approved, the Secretary will include the name

of the authorized applicant on an APO service list that the Department

will maintain for each segment of a proceeding. Paragraph (c) of

Sec. 351.305 provides that

[[Page 24398]]

the Secretary will use the most expeditious means available to provide

parties with the APO service list on the day the list is issued or

amended.

Commenters generally supported the proposal. While they supported a

flexible approach with respect to promulgating and updating the APO

service list, they also expressed concern with the lack of specificity

as to the form of notice to anticipate. Commenters were particularly

concerned with the use of the Internet to the extent the Department is

contemplating reliance on electronic mail, based on the uncertainty of

the timely receipt of information (particularly where the parties are

out of the office) or even whether the information would be received at

all. To the extent the Department elects to rely on any Internet or e-

mail notification, commenters urged the Department to also send a copy

of the notification by mail to the parties to ensure that actual

notification was received.

Other commenters stated that the preferred method is by facsimile.

They stated that most businesses, including law firms practicing before

the Department, have procedures to ensure that incoming facsimiles

rapidly come to the attention of the indicated recipient. Commenters

noted that these procedures are not necessarily in place with respect

to the Internet and transmission by mail involves at least two days of

delay.

At this time, the Department will fax every change in the APO

service list directly to each party on the service list for each

proceeding. In addition, until the Department is assured that parties

are routinely receiving notification of the APO service list by fax,

the Department will mail hard copies of the service to the lead

applicant. This will provide certainty and consistency necessary to

effectively monitor APO service lists. APO service lists will be

available to the public on Import Administration's home page on the

Internet as a public service. The Department will adapt these

procedures to advances in technology adopted by the trade bar in the

future to ensure it provides notice as efficiently as possible.

Section 351.306 Use of Business Proprietary Information.

Section 351.306 sets forth rules concerning the use of business

proprietary information.

Use of Business Proprietary Information by the Secretary

Paragraph (a) is based on existing Secs. 353.32(f) and 355.32(f).

One change is the reference in paragraph (a)(4) to the disclosure of

information to the U.S. Trade Representative under 19 U.S.C. 3571(i).

Section 3571(i) (section 281(i) of the URAA) deals with the enforcement

of U.S. rights under the World Trade Organization Agreement on

Subsidies and Countervailing Measures. Also, although the regulation

itself is little changed, we note that the URAA amended section

777(b)(1)(A)(i) of the Act to clarify that the Department may use

business proprietary information for the duration of an entire

proceeding (from initiation to termination or revocation), as opposed

to merely the particular segment of a proceeding for which information

was submitted.

Use of Business Proprietary Information by Parties

Section 777 of the Act permits the Department to use business

proprietary information for the duration of an entire proceeding, from

initiation to termination or revocation. Under the current regulations,

the Department limits the record of a segment of a proceeding to

information submitted during that particular segment of the proceeding.

19 CFR 353.34(a). The Department limits the use of business proprietary

information by representatives of parties to the segment of the

proceeding in which the information was submitted. 19 CFR

353.34(b)(3)(ii). Although the Department may have access to business

proprietary information from another segment of the proceeding, the

Department may not base a decision on business proprietary information

that is not on the record of the particular segment of the proceeding.

The URAA identifies three specific instances in which the

Department would be expected to use information from different segments

of proceedings or different proceedings: (1) Information from prior

segments may be used in a sunset or changed circumstances review of the

same proceeding (section 777(b)(1) of the Act); (2) business

proprietary information from a sunset or changed circumstances review

resulting in revocation may be used in an investigation on the same

merchandise from the same country initiated within two years of

revocation (section 777(b)(3) of the Act); and (3) information from a

terminated investigation may be used in a new investigation on the

subject merchandise from the same and another country within three

months of termination of the prior investigation (sections 704 and 734

of the Act).

Paragraph (b) of Sec. 351.306 deals with the use of business

proprietary information by parties from one segment of a proceeding to

another. In the February notice, the Department proposed to permit

parties to retain business proprietary information released under APO

for two segments of the proceeding subsequent to that in which the

information was placed on the record. Paragraph (b) provided that

normally an authorized applicant may use such information only in the

particular segment of the proceeding in which the information was

obtained. An authorized applicant could, we proposed, place business

proprietary information received in one segment of a proceeding on the

record of either of two subsequent consecutive segments (generally

administrative reviews under section 751(a)) if the information is

relevant to an issue in the subsequent segments.

We have modified this paragraph to give the Department greater

flexibility in determining how business proprietary information may be

used. Our intention at this time is to allow an authorized applicant to

retain business proprietary information obtained in one segment of a

proceeding for two subsequent consecutive administrative reviews and to

use such business proprietary information in those administrative

reviews or other segments of the proceeding initiated during that time.

This use of business proprietary information will be authorized by the

terms of the APOs.

Four commenters wanted to expand the policy by having essentially

unlimited access to proprietary information for the entire duration of

the proceeding and, in some cases, even across proceedings. These

commenters suggested that any changes should be applied to current

APOs, as well as future APOs. They argued that such broad ability to

use business proprietary information was consistent with the statute

and would best enable them to identify inconsistencies in submissions

from one segment of a proceeding to another.

Four commenters supported the proposed policy with certain

restrictions. These commenters urged the Department to prohibit

wholesale incorporation of business proprietary information from

another segment of the proceeding and, instead, require that any

business proprietary information submitted from another segment of the

proceeding be relevant to the segment in which it is submitted.

Additionally, some of these commenters indicated that a shorter period

of time (one

[[Page 24399]]

segment) would be sufficient to achieve the Department's goals.

Four commenters strongly opposed any change to current policy. They

argued that the limited changes to the statute cannot justify the

significant changes proposed in the regulations. This group argued that

statutory requirements and prior CIT decisions regarding the record for

review effectively prohibit the changes proposed by the Department.

This group also cited concerns that the broader ability to retain and

use business proprietary information would increase the likelihood of

disclosure of that information and thereby discourage parties from

participating in proceedings before the Department. The group contended

that these changes will also impose additional burdens on parties (to

monitor the use of their business proprietary information in subsequent

segments and to whom their business proprietary information is

released, and to maintain the ability to justify all differences in

their reported information from one segment to the next). The group

contended that this practice would also increase burdens on the

Department to document and verify the bases for any differences across

segments of proceedings.

We have not broadened the proposal to permit unlimited use of

business proprietary information across all segments of a proceeding,

or across all proceedings other than those specified in the statute.

There is no legal support for the request to utilize business

proprietary information across proceedings.

Nor do we agree with commenters totally opposing use of business

proprietary information in more than one segment. The statute and CIT

precedent do not prohibit the proposed changes. The proposed changes

would provide for inclusion of the information from another segment on

the record of the segment in question. The proposed changes were not

based on statutory changes made by the URAA, but, rather, rely on

authority which the Department has always possessed. We agree that

these changes will create some additional burdens on all parties to

monitor subsequent segments of proceedings to avoid release of their

business proprietary information to a party to whom they object. These

are rare occurrences, and we have attempted to minimize this burden

and, thereby, minimize the likelihood that these changes will cause

respondents to refuse to participate in the Department's proceedings

due to concerns about their business proprietary information. Any

additional burden on the Department will be minimized by the

Department's ability to reject submissions of irrelevant business

proprietary information from other segments.

We agree that wholesale incorporation of business proprietary

information from prior segments should be rejected unless absolutely

necessary. We also agree that the Department should reject business

proprietary information from another segment which is not relevant to

the ongoing segment. Such decisions, however, may be difficult to make

and may present additional bases for appeal to the CIT. Therefore, the

Department does not intend to make a decision on relevancy every time a

party submits information from a prior segment into the current

segment, but it reserves the right to do so in appropriate

circumstances. At the same time, in order to avoid imposing undue

burdens on the Department, we intend to consider such information only

to the extent that is relevant to issues raised by interested parties

or that the Department otherwise deems appropriate.

The Department expects that there will be a multitude of practical

problems that will have to be worked out over time and with experience

under these new procedures. Initially we will permit parties to retain

business proprietary information for two additional segments (generally

administrative reviews) after the segment in which the business

proprietary information was submitted. This is a reasonable compromise

between the long-held desires of petitioners to be able to address

perceived inconsistencies between segments, and respondents' concerns

that their business proprietary information not be distributed among

representatives and across segments for indeterminate periods. Once

business proprietary information is placed on the record of a

subsequent segment of the proceeding, it remains a permanent addition

to the later record, unless the Department rejects the information.

The Department believes that this new practice normally will be

used to move business proprietary information from an investigation or

administrative review to two subsequent consecutive administrative

reviews. The Department also intends to authorize the use of business

proprietary information submitted in an investigation or administrative

review in other segments, such as scope proceedings or changed

circumstances reviews, initiated during those two administrative

reviews. If the Department determines, as it gains experience, that it

is appropriate to modify this practice, it will do so by changing the

terms of the APOs.

Identifying Parties Submitting Business Proprietary Information

Paragraph (c) of Sec. 351.306 addresses identification of

submitters of business proprietary information in submissions

containing business proprietary information from multiple persons. The

Department is requiring that APO applicants be required to request

access to all business proprietary information submitted in a

particular segment of a proceeding. In addition, we proposed that in

the case of submissions, such as briefs, that include business

proprietary information of different parties, the submission must

identify each piece of business proprietary information included and

the party to which the information pertains. (For example, Information

Item #1 came from Respondent A, Information Item #2 came from

Respondent B, etc.) The purpose of this proposal is to enable parties

to submit a single business proprietary version of a submission that

may be served on all parties represented by authorized applicants,

instead of forcing parties to submit and serve different APO versions

for each of the parties involved in a proceeding. In the case of a

submission served on a party not represented by an authorized applicant

(a relatively rare event), the submitter still would have to prepare

and serve a separate submission containing only that party's business

proprietary information.

Three commenters supported this proposal. They agree it will reduce

the possibility of APO violations when documents contain business

proprietary information provided by more than one party. Commenters

further suggested that, when all business proprietary information in a

submission is obtained from a single party, the Department's

regulations permit the submitting party to identify the original

submitter of the business proprietary information only once, on the

title page of the submission. We agree and have incorporated this into

Sec. 351.306(c).

Commenters also suggested that the Department should clarify the

proposed rule by stating that only business proprietary information of

another party needs to be specifically identified by source. The

commenter proposed that any business proprietary information that is

bracketed in the submission should be assumed to be business

proprietary information belonging to the party submitting the document

unless otherwise identified as business proprietary information of

another party. The commenter pointed out that

[[Page 24400]]

without this clarification, submissions to the Department would become

cluttered with notations as to the original submitter of the business

proprietary information and it may become very difficult to read the

submission. We agree, and have incorporated this suggestion into

Sec. 351.306(c) of the regulations.

One commenter urged the Department to clarify what is meant by the

term ``identify contiguously with each item'' so that parties can adapt

their procedures accordingly. The commenter noted that particularly

troublesome would be documents containing multi-party information on a

single line. The commenter requested that the Department should clarify

whether the identifying markings are also required in public versions.

The term ``contiguous'' was used to require identification closely

enough with the item of business proprietary information so a party

could clearly and quickly identify the original submitter of the

business proprietary information. We do not want to be so specific that

parties lose flexibility to respond to different situations. Documents

can vary, and readability must not be sacrificed. In some situations, a

notation next to the item of business proprietary will best serve

everyone's interests. In a more complicated document, footnotes might

be better. Since the public version of a submission should be identical

with the business proprietary version except for the deletion of the

proprietary information, the public submission will contain the

identity of the original submitter of the proprietary information.

Some commenters objected to the Department's proposed exception

(Sec. 351.306(c)(2)) to the single-version business proprietary

information document rule where a party does not have a representative.

They argued that it undermined the benefits gained from not having to

file respondent-specific submissions and that adequate public summaries

would be adequate.

The Department believes that this requirement is necessary. A party

needs disclosure of another party's arguments against it to adequately

defend itself. To fail to do so would not provide sufficient

transparency to the proceeding.

Concern was expressed regarding the potential mismarking of

business proprietary information in a document, and the reliance

thereafter on the information mismarked by another party. The commenter

urged that the latter party's reliance on the mismarked information

should not constitute a breach of the protective order. Another

commenter took the opposite view. It suggested that if a party

mistakenly indicates the wrong original submitter of business

proprietary information in a submission, the party should only be

required to correct the mistake, and the mistake should not constitute

an APO violation in and of itself. The commenter further argued,

however, that if, as a result of a mistake, a party were to disclose

business proprietary information to another party not authorized to

receive it, that disclosure would constitute an APO violation under the

existing APO rules.

Only the party creating the submission from multiple parties'

business proprietary information knows with certainty the person that

originally submitted the business proprietary information. Therefore

the submitter must be responsible for the accuracy of the labeling.

This is the purpose of the proposal. Unless an authorized applicant

knows that an identification is incorrect, he or she should be entitled

to rely on the identification. Otherwise the requirement serves no

purpose. An unauthorized disclosure resulting from inaccurate labeling

that leads to an APO violation will be attributed to the person

labeling the original submitter of the business proprietary

information.

Another commenter opposed the proposal altogether, arguing that the

proposal is an attempt to shift costs and responsibility from

petitioner to respondent, causing respondent to lose time reviewing

petitioner's case brief in the five days that they have to prepare

rebuttal briefs under proposed Sec. 351.309(d). The commenter argued

that while the number of inadvertent APO violations will decrease for

petitioner's counsel, they will increase for respondent's counsel,

because respondent's counsel must now make sure petitioner's documents

do not include APO material that should not be released.

These proposed procedures formalize what has been the Department's

practice since 1992. Moreover, we believe that these proposals balance

the different interests of petitioners and respondents. Although there

are risks of inadvertent APO violations associated with any option, we

believe that the fact that all authorized applicants will have access

to the business proprietary information of all parties (whether or not

service is waived) should reduce significantly the number of

inadvertent disclosures. In this regard, the inadvertent service on an

authorized applicant of a submission containing information of a party

for which the applicant has waived service would not constitute an APO

violation.

Administrative Protective Order Sanction Procedures

Five parties commented on the proposed amendments to the APO

sanction procedures. All commenters supported the proposed changes.

Upon further reflection, the Department is amending its regulations

consistent with the proposed regulations. As explained below, the

Department also is making clerical revisions to use terms

``administrative protective order'' and ``business proprietary

information'' consistently throughout this part, and to conform the

regulations to changes made in the organization of the Department on

July 1, 1996.

Section 354.2 Definitions.

The definition section is revised to be consistent with the

definitions contained in the Department's proposed antidumping and

countervailing procedural regulations at 19 CFR 351.102. The

definitions of the terms ``administrative protective order'',

``Secretary'', ``segment of the proceeding'', and ``Senior APO

Specialist'' are added to Part 354 in Sec. 354.2.

The definition of ``director'' is revised to reflect the

reorganization of the Department that became effective July 1, 1996.

Under the reorganization, the APO function is consolidated under the

Director for Policy and Analysis, and is managed by a Senior APO

Specialist. The Senior APO Specialist is responsible for directing the

Department's handling of business proprietary information. The Senior

APO Specialist assists with investigations of alleged APO violations,

which streamlines the APO violation investigation process. A definition

of ``Senior APO Specialist'' is added in Sec. 354.2, and the definition

of ``director'' is revised to include the Senior APO Specialist. The

definition of director is also amended to conform the regulation to the

changes in office director positions made in the July 1, 1996

reorganization.

Section 354.5 Report of violation and investigation.

Paragraph (a)(1) is amended to require that all allegations of APO

violations be reported to either the Senior APO Specialist or the

Office of Chief Counsel for the Department. Under the current practice,

alleged violations are reported to the APO specialist in the Office of

Investigations or Office of Compliance, depending on where the alleged

violation occurred. The amendment conforms the regulation to the July

1, 1996 reorganization of the Department.

[[Page 24401]]

Paragraphs (d) (7) and (8) are combined and revised to reflect

changes in the Act and Department practice regarding the use of

business proprietary information in segments of proceedings other than

the one in which the information was originally submitted. These

changes are discussed above. The Department's procedural regulations

will now allow use of business proprietary information in more than one

segment of a proceeding or another proceeding in limited situations.

The segments of proceedings in which business proprietary information

may be used will be contained in the administrative protective order.

Paragraphs (d) (7) and (8) are combined and revised to reflect these

changes.

Classification

E.O. 12866

This rule has been determined to be not significant for purposes of

Executive Order 12866.

Paperwork Reduction Act

This rule does not contain a collection of information for purposes

of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et

seq.).

Regulatory Flexibility Act

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce has certified to the Chief Counsel for Advocacy

of the Small Business Administration that these amendments would not

have a significant economic impact on a substantial number of small

business entities because the rule that they would amend does not have

such an impact and, furthermore, the amendments would tend to simplify

the procedures pertaining to administration of APO sanctions. The

Deputy Under Secretary for International Trade is responsible for

regulations governing sanctions for violations of APOs. The Assistant

Secretary for Import Administration is responsible for the regulations

governing issuance and use of APOs.

List of Subjects in 19 CFR Parts 351 and 354

Business and industry, Foreign trade, Imports, Trade practices.

Dated: April 29, 1998.

Timothy J. Hauser,

Deputy Under Secretary for International Trade.

Dated: April 29, 1998.

Robert S. LaRussa,

Assistant Secretary for Import Administration.

For the reasons stated, 19 CFR chapter III is amended as follows:

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

1. The authority citation for 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.

2. Section 351.103 is revised as follows:

Sec. 351.103 Central Records Unit and Administrative Protective Order

Unit.

(a) Import Administration's Central Records Unit maintains a Public

File Room in Room B-099 and a Dockets Center in Room 1870, U.S.

Department of Commerce, Pennsylvania Avenue and 14th Street, NW.,

Washington, D.C. 20230. The office hours of the Public File Room and

Dockets Center are between 8:30 a.m. and 5:00 p.m. on business days.

Among other things, the Central Records Unit is responsible for

maintaining an official and public record for each antidumping and

countervailing duty proceeding (see Sec. 351.104), the Subsidies

Library (see section 775(2) and section 777(a)(1) of the Act), and the

service list for each proceeding (see paragraph (c) of this section).

(b) Filing of documents with the Department. While persons are free

to provide Department officials with courtesy copies of documents, no

document will be considered as having been received by the Secretary

unless it is submitted to the Import Administration Dockets Center in

Room 1870 and is stamped with the date and time of receipt.

(c) Service list. The Central Records Unit will maintain and make

available a service list for each segment of a proceeding. Each

interested party that asks to be included on the service list for a

segment of a proceeding must designate a person to receive service of

documents filed in that segment. The service list for an application

for a scope ruling is described in Sec. 351.225(n).

(d) Import Administration's Administrative Protective Order Unit

(APO Unit) is located in Room 1870, U.S. Department of Commerce,

Pennsylvania Avenue and 14th Street, N.W., Washington, D.C. 20230. The

office hours of the APO Unit are between 8:30 a.m. and 5:00 p.m. on

business days. Among other things, the APO Unit is responsible for

issuing administrative protective orders (APOs), maintaining the APO

service list, releasing business proprietary information under APO, and

APO violation investigations. The APO Unit also is the contact point

for questions and concerns regarding claims for business proprietary

treatment of information and proper public versions of submissions

under Sec. 351.105 and Sec. 351.304.

3. Sections 351.304, 351.305 and 351.306 are added to subpart C to

read as follows:

Sec. 351.304 Establishing business proprietary treatment of

information.

(a) Claim for business proprietary treatment. (1) Any person that

submits factual information to the Secretary in connection with a

proceeding may:

(i) Request that the Secretary treat any part of the submission as

business proprietary information that is subject to disclosure only

under an administrative protective order,

(ii) Claim that there is a clear and compelling need to withhold

certain business proprietary information from disclosure under an

administrative protective order, or

(iii) In an investigation, identify customer names that are exempt

from disclosure under administrative protective order under section

777(c)(1)(A) of the Act.

(2) The Secretary will require that all business proprietary

information presented to, or obtained or generated by, the Secretary

during a segment of a proceeding be disclosed to authorized applicants,

except for

(i) Customer names submitted in an investigation,

(ii) Information for which the Secretary finds that there is a

clear and compelling need to withhold from disclosure, and

(iii) Privileged or classified information.

(b) Identification of business proprietary information. (1) In

general. A person submitting information must identify the information

for which it claims business proprietary treatment by enclosing the

information within single brackets. The submitting person must provide

with the information an explanation of why each item of bracketed

information is entitled to business proprietary treatment. A person

submitting a request for business proprietary treatment also must

include an agreement to permit disclosure under an administrative

protective order,

[[Page 24402]]

unless the submitting party claims that there is a clear and compelling

need to withhold the information from disclosure under an

administrative protective order.

(2) Information claimed to be exempt from disclosure under

administrative protective order. (i) If the submitting person claims

that there is a clear and compelling need to withhold certain

information from disclosure under an administrative protective order

(see paragraph (a)(1)(ii) of this section), the submitting person must

identify the information by enclosing the information within double

brackets, and must include a full explanation of the reasons for the

claim.

(ii) In an investigation, the submitting person may enclose

business proprietary customer names within double brackets (see

paragraph (a)(1)(iii) of this section).

(iii) The submitting person may exclude the information in double

brackets from the business proprietary information version of the

submission served on authorized applicants. See Sec. 351.303 for filing

and service requirements.

(c) Public version. (1) A person filing a submission that contains

information for which business proprietary treatment is claimed must

file a public version of the submission. The public version must be

filed on the first business day after the filing deadline for the

business proprietary version of the submission (see Sec. 351.303(b)).

The public version must contain a summary of the bracketed information

in sufficient detail to permit a reasonable understanding of the

substance of the information. If the submitting person claims that

summarization is not possible, the claim must be accompanied by a full

explanation of the reasons supporting that claim. Generally, numerical

data will be considered adequately summarized if grouped or presented

in terms of indices or figures within 10 percent of the actual figure.

If an individual portion of the numerical data is voluminous, at least

one percent representative of that portion must be summarized. A

submitter should not create a public summary of business proprietary

information of another person.

(2) If a submitting party discovers that it has failed to bracket

information correctly, the submitter may file a complete, corrected

business proprietary version of the submission along with the public

version (see Sec. 351.303(b)). At the close of business on the day on

which the public version of a submission is due under paragraph (c)(2)

of this section, however, the bracketing of business proprietary

information in the original business proprietary version or, if a

corrected version is timely filed, the corrected business proprietary

version will become final. Once bracketing has become final, the

Secretary will not accept any further corrections to the bracketing of

information in a submission, and the Secretary will treat non-bracketed

information as public information.

(d) Nonconforming submissions. (1) In general. The Secretary will

return a submission that does not meet the requirements of section

777(b) of the Act and this section with a written explanation. The

submitting person may take any of the following actions within two

business days after receiving the Secretary's explanation:

(i) Correct the problems and resubmit the information;

(ii) If the Secretary denied a request for business proprietary

treatment, agree to have the information in question treated as public

information;

(iii) If the Secretary granted business proprietary treatment but

denied a claim that there was a clear and compelling need to withhold

information under an administrative protective order, agree to the

disclosure of the information in question under an administrative

protective order; or

(iv) Submit other material concerning the subject matter of the

returned information. If the submitting person does not take any of

these actions, the Secretary will not consider the returned submission.

(2) Timing. The Secretary normally will determine the status of

information within 30 days after the day on which the information was

submitted. If the business proprietary status of information is in

dispute, the Secretary will treat the relevant portion of the

submission as business proprietary information until the Secretary

decides the matter.

Sec. 351.305 Access to business proprietary information.

(a) The administrative protective order. The Secretary will place

an administrative protective order on the record within two days after

the day on which a petition is filed or an investigation is self-

initiated, or five days after initiating any other segment of a

proceeding. The administrative protective order will require the

authorized applicant to:

(1) Establish and follow procedures to ensure that no employee of

the authorized applicant's firm releases business proprietary

information to any person other than the submitting party, an

authorized applicant, or an appropriate Department official identified

in section 777(b) of the Act;

(2) Notify the Secretary of any changes in the facts asserted by

the authorized applicant in its administrative protective order

application;

(3) Destroy business proprietary information by the time required

under the terms of the administrative protective order;

(4) Immediately report to the Secretary any apparent violation of

the administrative protective order; and

(5) Acknowledge that any unauthorized disclosure may subject the

authorized applicant, the firm of which the authorized applicant is a

partner, associate, or employee, and any partner, associate, or

employee of the authorized applicant's firm to sanctions listed in part

354 of this chapter (19 CFR part 354).

(b) Application for access under administrative protective order.

(1) Generally, no more than two independent representatives of a party

to the proceeding may have access to business proprietary information

under an administrative protective order. A party must designate a lead

firm if the party has more than one independent authorized applicant

firm.

(2) A representative of a party to the proceeding may apply for

access to business proprietary information under the administrative

protective order by submitting Form ITA-367 to the Secretary. Form ITA-

367 must identify the applicant and the segment of the proceeding

involved, state the basis for eligibility of the applicant for access

to business proprietary information, and state the agreement of the

applicant to be bound by the administrative protective order. Form ITA-

367 may be prepared on the applicant's own word-processing system, and

must be accompanied by a certification that the application is

consistent with Form ITA-367 and an acknowledgment that any

discrepancies will be interpreted in a manner consistent with Form ITA-

367. An applicant must apply to receive all business proprietary

information on the record of the segment of a proceeding in question,

but may waive service of business proprietary information it does not

wish to receive from other parties to the proceeding. An applicant must

serve an APO application on the other parties in the same manner and at

the same time as it serves the application on the Department.

(3) To minimize the disruption caused by late applications, an

application should be filed before the first

[[Page 24403]]

questionnaire response has been submitted. Where justified, however,

applications may be filed up to the date on which the case briefs are

due, but any applicant filing after the first questionnaire response is

submitted will be liable for costs associated with the additional

production and service of business proprietary information already on

the record. Parties have five days to serve their business proprietary

information already on the record to applicants authorized to receive

such information after such information has been placed on the record.

(c) Approval of access under administrative protective order;

administrative protective order service list. The Secretary will grant

access to a qualified applicant by including the name of the applicant

on an administrative protective order service list. Access normally

will be granted within five days of receipt of the application unless

there is a question regarding the eligibility of the applicant to

receive access. In that case, the Secretary will decide whether to

grant the applicant access within 30 days of receipt of the

application. The Secretary will provide by the most expeditious means

available the administrative protective order service list to parties

to the proceeding on the day the service list is issued or amended.

Sec. 351.306 Use of business proprietary information.

(a) By the Secretary. The Secretary may disclose business

proprietary information submitted to the Secretary only to:

(1) An authorized applicant;

(2) An employee of the Department of Commerce or the International

Trade Commission directly involved in the proceeding in which the

information is submitted;

(3) An employee of the Customs Service directly involved in

conducting a fraud investigation relating to an antidumping or

countervailing duty proceeding;

(4) The U.S. Trade Representative as provided by 19 U.S.C. 3571(i);

(5) Any person to whom the submitting person specifically

authorizes disclosure in writing; and

(6) A charged party or counsel for the charged party under 19 CFR

part 354.

(b) By an authorized applicant. An authorized applicant may retain

business proprietary information for the time authorized by the terms

of the administrative protective order. An authorized applicant may use

business proprietary information for purposes of the segment of a

proceeding in which the information was submitted. If business

proprietary information that was submitted in a segment of the

proceeding is relevant to an issue in a different segment of the

proceeding, an authorized applicant may place such information on the

record of the subsequent segment as authorized by the APO.

(c) Identifying parties submitting business proprietary

information. (1) If a party submits a document containing business

proprietary information of another person, the submitting party must

identify, contiguously with each item of business proprietary

information, the person that originally submitted the item (e.g.,

Petitioner, Respondent A, Respondent B). Business proprietary

information not identified will be treated as information of the person

making the submission. If the submission contains business proprietary

information of only one person, it shall so state on the first page and

identify the person that originally submitted the business proprietary

information on the first page.

(2) If a party to a proceeding is not represented by an authorized

applicant, a party submitting a document containing the unrepresented

party's business proprietary information must serve the unrepresented

party with a version of the document that contains only the

unrepresented party's business proprietary information. The document

must not contain the business proprietary information of other parties.

(d) Disclosure to parties not authorized to receive business

proprietary information. No person, including an authorized applicant,

may disclose the business proprietary information of another person to

any other person except another authorized applicant or a Department

official described in paragraph (a)(2) of this section. Any person that

is not an authorized applicant and that is served with business

proprietary information must return it to the sender immediately, to

the extent possible without reading it, and must notify the Department.

An allegation of an unauthorized disclosure will subject the person

that made the alleged unauthorized disclosure to an investigation and

possible sanctions under 19 CFR part 354.

PART 354 [AMENDED]

4-5. The authority citation for part 354 is revised to read as

follows:

Authority: 5 U.S.C. 301, and 19 U.S.C. 1677.

6. All references in part 354 to ``protective order'' are revised

to read ``administrative protective order'', all references to

``proprietary information'' are revised to read ``business proprietary

information'', and all references to ``appropriate Director'' are

revised to read ``Director''.

Sec. 354. 1 [Amended]

7. Section 354.1 is amended by removing the citations ``19 CFR

353.30 and 355.20'' and replacing them with ``19 CFR 351.306''.

8. Section 354.2 is revised as follows:

Sec. 354.2 Definitions.

For purposes of this part:

Administrative protective order (APO) means an administrative

protective order described in section 777(c)(1) of the Tariff Act of

1930, as amended; APO Sanctions Board means the Administrative

Protective Order Sanctions Board.

Business proprietary information means information the disclosure

of which the Secretary has decided is limited under 19 CFR 351.105, or

successor regulations;

Charged party means a person who is charged by the Deputy Under

Secretary with violating a protective order;

Chief Counsel means the Chief Counsel for Import Administration or

a designee;

Date of service means the day a document is deposited in the mail

or delivered in person;

Days means calendar days, except that a deadline which falls on a

weekend or holiday shall be extended to the next working day;

Department means the United States Department of Commerce;

Deputy Under Secretary means the Deputy Under Secretary for

International Trade or a designee;

Director means the Senior APO Specialist or an office director

under a Deputy Assistant Secretary, International Trade Administration,

or a designee;

Lesser included sanction means a sanction of the same type but of

more limited scope than the proposed sanction; thus a one-year bar on

representations before the International Trade Administration is a

lesser included sanction of a proposed seven-year bar;

Parties means the Department and the charged party or affected

party in an action under this part;

Presiding official means the person authorized to conduct hearings

in administrative proceedings or to rule on any motion or make any

determination under this part, who may be an Administrative Law Judge,

a Hearing Commissioner, or such other person who is not under the

supervision or

[[Page 24404]]

control of the Assistant Secretary for Import Administration, the

Deputy Under Secretary for International Trade, the Chief Counsel for

Import Administration, or a member of the APO Sanctions Board;

Proprietary information means information the disclosure of which

the Secretary has decided is limited under 19 CFR part 351 including

business or trade secrets; production costs; distribution costs; terms

of sale; prices of individual sales, likely sales, or offers; names of

customers, distributors, or suppliers; exact amounts of the gross net

subsidies received and used by a person; names of particular persons

from whom proprietary information was obtained; and any other business

information the release of which to the public would cause substantial

harm to the competitive position of the submitter;

Secretary means the Secretary of Commerce or a designee;

Segment of the proceeding means a portion of an antidumping or

countervailing duty proceeding that is reviewable under section 516A of

the Tariff Act of 1930, as amended.

Senior APO Specialist means the Department employee under the

Director for Policy and Analysis who leads the APO Unit and is

responsible for directing Import Administration's handling of business

proprietary information;

Under Secretary means the Under Secretary for International Trade

or a designee.

9. Section 354.3 is amended by revising paragraphs (a)(3), and

(a)(4), and by adding a new paragraph (a)(5), as follows:

Sec. 354.3 Sanctions.

(a) * * *

(3) Other appropriate administrative sanctions, including striking

from the record any information or argument submitted by, or on behalf

of, the violating party or the party represented by the violating

party; terminating any proceeding then in progress; or revoking any

order then in effect;

(4) Requiring the person to return material previously provided by

the Secretary and all other materials containing the business

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

such information received under an administrative protective order; and

(5) Issuing a private letter of reprimand.

* * * * *

10. Section 354.5 is amended by revising paragraphs (a), (b), (c)

and (d)(1), (d)(2), and (d)(7), and by removing paragraph (d)(8), and

redesignating paragraph (d)(9) as (d)(8), as follows:

Sec. 354.5 Report of violation and investigation.

(a) An employee of the Department who has information indicating

that the terms of an administrative protective order have been violated

will provide the information to the Senior APO Specialist or the Chief

Counsel.

(b) Upon receiving information which indicates that a person may

have violated the terms of an administrative protective order from an

employee of the Department or any other person, the director will

conduct an investigation concerning whether there was a violation of an

administrative protective order, and who was responsible for the

violation, if any. No director shall investigate an alleged violation

that arose out of a proceeding for which the director was responsible.

For the purposes of this part, the director will be supervised by the

Deputy Under Secretary for International Trade with guidance from the

Chief Counsel. The director will conduct an investigation only if the

information is received within 30 days after the alleged violation

occurred or, as determined by the director, could have been discovered

through the exercise of reasonable and ordinary care.

(c)(1) The director conducting the investigation will provide a

report of the investigation to the Deputy Under Secretary for

International Trade, after review by the Chief Counsel, no later than

90 days after receiving information concerning a violation if:

(i) The person alleged to have violated an administrative

protective order personally notified the Secretary and reported the

particulars surrounding the incident; and

(ii) The alleged violation did not result in any actual disclosure

of business proprietary information. Upon the director's request, and

if extraordinary circumstances exist, the Deputy Under Secretary for

International Trade may grant the director up to an additional 90 days

to conduct the investigation and submit the report.

(2) In all other cases, the director will provide a report of the

investigation to the Deputy Under Secretary for International Trade,

after review by the Chief Counsel, no later than 180 days after

receiving information concerning a violation. Upon the director's

request, and if extraordinary circumstances exist, the Deputy Under

Secretary for International Trade may grant the director up to an

additional 180 days to conduct the investigation and submit the report.

(d) * * *

(1) Disclosure of business proprietary information to any person

other than the submitting party, an authorized applicant, or an

appropriate Department official identified in section 777(b) of the

Tariff Act of 1930, including disclosure to an employee of any other

United States Government agency or a member of Congress.

(2) Failure to follow the terms and conditions outlined in the

administrative protective order for safeguarding business proprietary

information.

* * * * *

(7) Use of business proprietary information submitted in one

segment of a proceeding in another segment of the same proceeding or in

another proceeding, except as authorized by the Tariff Act of 1930 or

by an administrative protective order.

* * * * *

11. Section 354.6 is revised as follows:

Sec. 354.6 Initiation of proceedings.

(a) In general. After an investigation and report by the director

under Sec. 354.5(c) and consultation with the Chief Counsel, the Deputy

Under Secretary for International Trade will determine whether there is

reasonable cause to believe that a person has violated an

administrative protective order. If the Deputy Under Secretary for

International Trade determines that there is reasonable cause, the

Deputy Under Secretary for International Trade also will determine

whether sanctions under paragraph (b) or a warning under paragraph (c)

is appropriate for the violation.

(b) Sanctions. In determining under paragraph (a) of this section

whether sanctions are appropriate, and, if so, what sanctions to

impose, the Deputy Under Secretary for International Trade will

consider the nature of the violation, the resulting harm, and other

relevant circumstances of the case. If the Deputy Under Secretary for

International Trade determines that sanctions are appropriate, the

Deputy Under Secretary for International Trade will initiate a

proceeding under this part by issuing a charging letter under

Sec. 354.7. The Deputy Under Secretary for International Trade will

determine whether to initiate a proceeding no later than 60 days after

receiving a report of the investigation.

(c) Warning. If the Deputy Under Secretary for International Trade

determines under paragraph (a) of this

[[Page 24405]]

section that a warning is appropriate, the Deputy Under Secretary will

issue a warning letter to the person believed to have violated an

administrative protective order. Sanctions are not appropriate and a

warning is appropriate if:

(1) The person took due care;

(2) The Secretary has not previously charged the person with

violating an administrative protective order;

(3) The violation did not result in any disclosure of the business

proprietary information or the Secretary is otherwise able to determine

that the violation caused no harm to the submitter of the information;

and

(4) The person cooperated fully in the investigation.

12. Section 354.7 is amended by revising paragraph (b), as follows:

Sec. 354.7 Charging letter.

* * * * *

(b) Settlement and amending the charging letter. The Deputy Under

Secretary for International Trade and a charged or affected party may

settle a charge brought under this part by mutual agreement at any time

after service of the charging letter; approval of the presiding

official or the administrative protective order Sanctions Board is not

necessary. The charged or affected party may request a hearing but at

the same time request that a presiding official not be appointed

pending settlement discussions. Settlement agreements may include

sanctions for purposes of Sec. 354.18. The Deputy Under Secretary for

International Trade may amend, supplement, or withdraw the charging

letter as follows:

(1) If there has been no request for a hearing, or if supporting

information has not been submitted under Sec. 354.13, the withdrawal

will not preclude future actions on the same alleged violation.

(2) If a hearing has been requested but no presiding official has

been appointed, withdrawal of the charging letter will preclude the

Deputy Under Secretary for International Trade from seeking sanctions

at a later date for the same alleged violation.

(3) The Deputy Under Secretary for International Trade may amend,

supplement or withdraw the charging letter at any time after the

appointment of a presiding official, if the presiding official

determines that the interests of justice would thereby be served. If

the presiding official so determines, the presiding official will also

determine whether the withdrawal will preclude the Deputy Under

Secretary for International Trade from seeking sanctions at a later

date for the same alleged violation.

* * * * *

13. Section 354.9 is amended by revising paragraph (b), as follows:

Sec. 354. 9 Request for a hearing.

(a) * * *

(b) Upon timely receipt of a request for a hearing, and unless the

party requesting a hearing requests that the Under Secretary not

appoint a presiding official, the Under Secretary will appoint a

presiding official to conduct the hearing and render an initial

decision.

Sec. 354.15 [Amended]

14. Section 354.15 is amended by removing paragraph (e).

Sec. 354.17 [Amended]

15. Section 354.17(b) is amended by removing the citations ``19 CFR

353.30 and Sec. 355.20'' and replacing them with ``19 CFR 351.305(c)''.

16. Section 354.18 is added to part 354, to read as follows:

Sec. 354.18 Public notice of sanctions.

If there is a final decision under Sec. 354.15 to impose sanctions,

or if a charging letter is settled under Sec. 354.7(b), notice of the

Secretary's decision or of the existence of a settlement will be

published in the Federal Register. If a final decision is reached, such

publication will be no sooner than 30 days after issuance of a final

decision or after a motion to reconsider has been denied, if such a

motion was filed. In addition, whenever the Deputy Under Secretary for

International Trade subjects a charged or affected party to a sanction

under Sec. 354.3(a)(1), the Deputy Under Secretary for International

Trade also will provide such information to the ethics panel or other

disciplinary body of the appropriate bar associations or other

professional associations and to any Federal agency likely to have an

interest in the matter. The Deputy Under Secretary for International

Trade will cooperate in any disciplinary actions by any association or

agency. Whenever the Deputy Under Secretary for International Trade

subjects a charged or affected party to a private letter of reprimand

under Sec. 354.3(a)(5), the Secretary will not make public the identity

of the violator, nor will the Secretary make public the specifics of

the violation in a manner that would reveal indirectly the identity of

the violator.

17. Section 354.19 is added to part 354, to read as follows:

Sec. 354.19 Sunset.

(a) If, after a period of three years from the date of issuance of

a warning letter, a final decision or settlement in which sanctions

were imposed, the charged or affected party has fully complied with the

terms of the sanctions and has not been found to have violated another

administrative protective order, the party may request in writing that

the Deputy Under Secretary for International Trade rescind the charging

letter. A request for rescission must include:

(1) A description of the actions taken during the preceding three

years in compliance with the terms of the sanctions; and

(2) A letter certifying that: the charged or affected party

complied with the terms of the sanctions; the charged or affected party

has not received another administrative protective order sanction

during the three-year period; and the charged or affected party is not

the subject of another investigation for a possible violation of an

administrative protective order.

(b) Subject to the Chief Counsel's confirmation that the charged or

affected party has complied with the terms set forth in paragraph (a)

of this section, the Deputy Under Secretary for International Trade

will rescind the charging letter within 30 days after receiving the

written request.

Appendix to 19 CFR Part 351, Subpart C

Note: The following appendix will not appear in the Code of

Federal Regulations: Application for Administrative Protective Order

in Antidumping or Countervailing Duty Proceeding, and Administrative

Protective Order.

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