[Code of Federal Regulations]
[Title 19, Volume 3]
[Revised as of April 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 19CFR206.17]

[Page 77-81]
 
                        TITLE 19--CUSTOMS DUTIES
 
                 CHAPTER II--UNITED STATES INTERNATIONAL
                            TRADE COMMISSION
 
PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD 
ACTIONS, MARKET DISRUPTION, TRADE DIVERSION, AND REVIEW OF RELIEF 
ACTIONS--Table of Contents
 
     Subpart B--Investigations Relating to Global Safeguard Actions
 
Sec. 206.17  Limited disclosure of certain confidential business information under administrative protective order.

    (a)(1) Disclosure. Upon receipt of a timely application filed by an 
authorized applicant, as defined in paragraph (a)(3) of this section, 
which describes in general terms the information requested, and sets 
forth the reasons for the request (e.g., all confidential business 
information properly disclosed pursuant to this section for the purpose 
of representing an interested party in investigations pending before the 
Commission), the Secretary shall make available all confidential 
business information contained in Commission memoranda and reports and 
in written submissions filed with the Commission at any time during the 
investigation (except privileged information, classified information, 
and specific information of a type which there is a clear and compelling 
need to withhold from disclosure, e.g., trade secrets) to the authorized 
applicant under an administrative protective order described in 
paragraph (b) of this section. The term ``confidential business 
information'' is defined in Sec. 201.6 of this chapter.
    (2) Application. An application under paragraph (a)(1) of this 
section must be made by an authorized applicant on a form adopted by the 
Secretary or a photocopy thereof. An application on behalf of an 
authorized applicant must be made no later than the time that entries of 
appearance are due pursuant to Sec. 201.11 of this chapter. In the event 
that two or more authorized applicants represent one interested party 
who is a party to the investigation, the authorized applicants must 
select one of their number to be lead authorized applicant. The lead 
authorized applicant's application must be filed no later than the time 
that entries of appearance are due. Provided that the application is 
accepted, the lead authorized applicant shall be served with 
confidential business information pursuant to paragraph (f) of this 
section. The other authorized applicants representing the same party may 
file their applications after the deadline for entries of appearance but 
at least five (5) days before the deadline for filing posthearing briefs 
in the investigation, and shall not be served with confidential business 
information.
    (3) Authorized applicant. (i) Only an authorized applicant may file 
an application under this subsection. An authorized applicant is:
    (A) An attorney for an interested party which is a party to the 
investigation;
    (B) A consultant or expert under the direction and control of a 
person under paragraph (a)(3)(i)(A) of this section;
    (C) A consultant or expert who appears regularly before the 
Commission and who represents an interested party which is a party to 
the investigation; or
    (D) A representative of an interested party which is a party to the 
investigation, if such interested party is not represented by counsel.
    (ii) In addition, an authorized applicant must not be involved in 
competitive decisionmaking for an interested party which is a party to 
the investigation. Involvement in ``competitive decisionmaking'' 
includes past, present, or likely future activities, associations, and 
relationships with an interested party which is a party to the 
investigation that involve the prospective authorized applicant's advice 
or participation in any of such party's decisions made in light of 
similar or corresponding information about a competitor (pricing, 
product design, etc.).
    (iii) For purposes of this Sec. 206.17, the term interested party 
means:
    (A) A foreign manufacturer, producer, or exporter, or the United 
States importer, of an article which is the

[[Page 78]]

subject of an investigation under this section or a trade or business 
association a majority of the members of which are producers, exporters, 
or importers of such article;
    (B) The government of a country in which such article is produced or 
manufactured;
    (C) A manufacturer, producer, or wholesaler in the United States of 
a like or directly competitive article;
    (D) A certified union or recognized union or group of workers which 
is representative of an industry engaged in the manufacture, production, 
or wholesale of a like or directly competitive article in the United 
States;
    (E) A trade or business association a majority of whose members 
manufacture, produce, or wholesale a like or directly competitive 
article in the United States; and
    (F) An association, a majority of whose members is composed of 
interested parties described in paragraphs (a)(3)(iii) (C), (D), or (E) 
of this section with respect to a like or directly competitive article.
    (4) Forms and determinations. (i) The Secretary may adopt, from time 
to time, forms for submitting requests for disclosure pursuant to an 
administrative protective order incorporating the terms of this rule. 
The Secretary shall determine whether the requirements for release of 
information under this rule have been satisfied. This determination 
shall be made concerning specific confidential business information as 
expeditiously as possible but in no event later than fourteen (14) days 
from the filing of the information, except if the submitter of the 
information objects to its release or the information is unusually 
voluminous or complex, in which case the determination shall be made 
within thirty (30) days from the filing of the information. The 
Secretary shall establish a list of parties whose applications have been 
granted. The Secretary's determination shall be final.
    (ii) Should the Secretary determine pursuant to this section that 
materials sought to be protected from public disclosure by a person do 
not constitute confidential business information or were not required to 
be served under paragraph (f) of this section, then the Secretary shall, 
upon request, issue an order on behalf of the Commission requiring the 
return of all copies of such materials served in accordance with 
paragraph (f) of this section.
    (iii) The Secretary shall release confidential business information 
only to an authorized applicant whose application has been accepted and 
who presents the application along with adequate personal 
identification; or a person described in paragraph (b)(1)(iv) of this 
section who presents a copy of the statement referred to in that 
paragraph along with adequate personal identification.
    (b) Administrative protective order. The administrative protective 
order under which information is made available to the authorized 
applicant shall require him to submit to the Secretary a personal sworn 
statement that, in addition to such other conditions as the Secretary 
may require, he shall:
    (1) Not divulge any of the confidential business information 
obtained under the administrative protective order and not otherwise 
available to him, to any person other than
    (i) Personnel of the Commission concerned with the investigation,
    (ii) The person or agency from whom the confidential business 
information was obtained,
    (iii) A person whose application for access to confidential business 
information under the administrative protective order has been granted 
by the Secretary, and
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by an authorized applicant; who have a need 
thereof in connection with the investigation; who are not involved in 
competitive decisionmaking on behalf of an interested party which is a 
party to the investigation; and who have submitted to the Secretary a 
signed statement in a form approved by the Secretary that they agree to 
be bound by the administrative protective order (the authorized 
applicant shall be deemed responsible for such persons' compliance with 
the administrative protective order);
    (2) Use such confidential business information solely for the 
purposes of the Commission investigation then in progress;

[[Page 79]]

    (3) Not consult with any person not described in paragraph (b)(1) of 
this section concerning such confidential business information without 
first having received the written consent of the Secretary and the party 
or the attorney of the party from whom such confidential business 
information was obtained;
    (4) Whenever materials (e.g., documents, computer disks, etc.) 
containing such confidential business information are not being used, 
store such material in a locked file cabinet, vault, safe, or other 
suitable container;
    (5) Serve all materials containing confidential business information 
as directed by the Secretary and pursuant to paragraph (f) of this 
section;
    (6) Transmit all materials containing confidential business 
information with a cover sheet identifying the materials as containing 
confidential business information;
    (7) Comply with the provisions of this section;
    (8) Make true and accurate representations in the authorized 
applicant's application and promptly notify the Secretary of any changes 
that occur after the submission of the application and that affect the 
representations made in the application (e.g., change in personnel 
assigned to the investigation);
    (9) Report promptly and confirm in writing to the Secretary any 
breach of the administrative protective order; and
    (10) Acknowledge that breach of the administrative protective order 
may subject the authorized applicant to such sanctions or other actions 
as the Commission deems appropriate.
    (c) Final disposition of material released under administrative 
protective order. At such date as the Secretary may determine 
appropriate for particular data, each authorized applicant shall return 
or destroy all copies of materials released to authorized applicants 
pursuant to this section and all other materials containing confidential 
business information, such as charts or notes based on any such 
information received under administrative protective order, and file 
with the Secretary a certificate attesting to his personal, good faith 
belief that all copies of such material have been returned or destroyed 
and no copies of such material have been made available to any person to 
whom disclosure was not specifically authorized.
    (d) Commission responses to a breach of administrative protective 
order. A breach of an administrative protective order may subject an 
offender to:
    (1) Disbarment from practice in any capacity before the Commission 
along with such person's partners, associates, employer, and employees, 
for up to seven years following publication of a determination that the 
order has been breached;
    (2) Referral to the United States Attorney;
    (3) In the case of an attorney, accountant, or other professional, 
referral to the ethics panel of the appropriate professional 
association;
    (4) Such other administrative sanctions as the Commission determines 
to be appropriate, including public release of or striking from the 
record any information or briefs submitted by, or on behalf of, the 
offender or the party represented by the offender, denial of further 
access to confidential business information in the current or any future 
investigations before the Commission, and issuance of a public or 
private letter of reprimand; and
    (5) Such other actions, including but not limited to, a warning 
letter, as the Commission determines to be appropriate.
    (e) Breach investigation procedure. (1) The Commission shall 
determine whether any person has violated an administrative protective 
order, and may impose sanctions or other actions in accordance with 
paragraph (d) of this section. At any time within sixty (60) days of the 
later of
    (i) The date on which the alleged violation occurred or, as 
determined by the Commission, could have been discovered through the 
exercise of reasonable and ordinary care; or
    (ii) The completion of an investigation conducted under this 
subpart, the Commission may commence an investigation of any breach of 
an administrative protective order alleged to have occurred at any time 
during the pendency of the investigation, including all

[[Page 80]]

appeals, remands, and subsequent appeals. Whenever the Commission has 
reason to believe that a person may have breached an administrative 
protective order issued pursuant to this section, the Secretary shall 
issue a letter informing such person that the Commission has reason to 
believe a breach has occurred and that the person has a reasonable 
opportunity to present his views on whether a breach has occurred. If 
subsequently the Commission determines that a breach has occurred and 
that further investigation is warranted, then the Secretary shall issue 
a letter informing such person of that determination and that the person 
has a reasonable opportunity to present his views on whether mitigating 
circumstances exist and on the appropriate sanction to be imposed, but 
no longer on whether a breach has occurred. Once such person has been 
afforded a reasonable opportunity to present his views, the Commission 
shall determine what sanction if any to impose.
    (2) Where the sanction imposed is a private letter of reprimand, the 
Secretary shall expunge the sanction from the recipient's record two (2) 
years from the date of issuance of the sanction, provided that
    (i) The recipient has not received another unexpunged sanction 
pursuant to this section at any time prior to the end of the two year 
period, and
    (ii) The recipient is not the subject of an investigation for 
possible breach of administrative protective order under this section at 
the end of the two year period. Upon the completion of such a pending 
breach investigation without the issuance of a sanction, the original 
sanction shall be expunged. The Secretary shall notify a sanction 
recipient in the event that the sanction is expunged.
    (f) Service. (1) Any party filing written submissions which include 
confidential business information to the Commission during an 
investigation shall at the same time serve complete copies of such 
submissions upon all authorized applicants specified on the list 
established by the Secretary pursuant to paragraph (a)(4) of this 
section, and, except as provided in Sec. 206.8(c), a nonconfidential 
version on all other parties. All such submissions must be accompanied 
by a certificate attesting that complete copies of the submission have 
been properly served. In the event that a submission is filed before the 
Secretary's list is established, the document need not be accompanied by 
a certificate of service, but the submission shall be served within two 
(2) days of the establishment of the list and a certificate of service 
shall then be filed.
    (2) A party may seek an exemption from the service requirement of 
paragraph (f)(1) of this section for particular confidential business 
information by filing a request for exemption from disclosure in 
accordance with paragraph (g) of this section. The Secretary shall 
promptly respond to the request. If a request is granted, the Secretary 
shall accept the information. The party shall file three versions of the 
submission containing the information in accordance with paragraph (g) 
of this section, and serve the submission in accordance with the 
requirements of Sec. 206.8(b) and paragraph (f)(1) of this section, with 
the specific information as to which exemption from disclosure under 
administrative protective order has been granted redacted from the 
copies served. If a request is denied, the copy of the information 
lodged with the Secretary shall promptly be returned to the requester.
    (3) The Secretary shall not accept for filing into the record of an 
investigation submissions filed without a proper certificate of service. 
Failure to comply with paragraph (f) of this section may result in 
denial of party status and such sanctions as the Commission deems 
appropriate. Confidential business information in submissions must be 
clearly marked as such when submitted, and must be segregated from other 
material being submitted.
    (g) Exemption from disclosure--(1) In general. Any person may 
request exemption from the disclosure of confidential business 
information under administrative protective order, whether the person 
desires to include such information in a petition filed under this 
Subpart B, or any other submission to the Commission during the

[[Page 81]]

course of an investigation. Such a request shall only be granted if the 
Secretary finds that such information is privileged information, 
classified information, or specific information of a type which there is 
a clear and compelling need to withhold from disclosure.
    (2) Request for exemption. A request for exemption from disclosure 
must be filed with the Secretary in writing with the reasons therefor. 
At the same time as the request is filed, one copy of the confidential 
business information in question must be lodged with the Secretary 
solely for the purpose of obtaining a determination as to the request. 
The confidential business information for which exemption from 
disclosure is sought shall remain the property of the requester, and 
shall not become or be incorporated into any agency record until such 
time as the request is granted. A request should, when possible, be 
filed two business days prior to the deadline, if any, for filing the 
document in which the information for which exemption from disclosure is 
sought is proposed to be included. The Secretary shall promptly notify 
the requester as to whether the request has been approved or denied.
    (3) Procedure if request is approved. If the request is approved, 
the person shall file three versions of the submission containing the 
confidential business information in question. One version shall contain 
all confidential business information, bracketed in accordance with 
Sec. 206.8(c), with the specific information as to which exemption from 
disclosure was granted enclosed in double brackets. This version shall 
have the following warning marked on every page: ``CBI exempted from 
disclosure under APO enclosed in double brackets.'' The other two 
versions shall conform to and be filed in accordance with the 
requirements of Sec. 206.8, except that the specific information as to 
which exemption from disclosure was granted shall be redacted from those 
versions of the submission.
    (4) Procedure if request is denied. If the request is denied, the 
copy of the information lodged with the Secretary shall promptly be 
returned to the requester.