[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: 19CFR207.7]

[Page 95-99]
 
                        TITLE 19--CUSTOMS DUTIES
 
                 CHAPTER II--UNITED STATES INTERNATIONAL
                            TRADE COMMISSION
 
  PART 207--INVESTIGATIONS OF WHETHER INJURY TO DOMESTIC INDUSTRIES 
RESULTS FROM IMPORTS SOLD AT LESS THAN FAIR VALUE OR FROM SUBSIDIZED 
EXPORTS TO THE UNITED STATES--Table of Contents
 
                      Subpart A--General Provisions
 
Sec. 207.7  Limited disclosure of certain business proprietary information under administrative protective order.

    (a)(1) Disclosure. Upon receipt of a timely application filed by an 
authorized applicant, as defined in paragraph (a)(3) of this section, 
which describes in general terms the information requested, and sets 
forth the reasons for the request (e.g., all business proprietary 
information properly disclosed pursuant to this section for the purpose 
of representing an interested party in investigations pending before the 
Commission), the Secretary shall make available all business proprietary 
information contained in Commission memoranda and reports and in written 
submissions filed with the Commission at any time during the 
investigation (except nondisclosable confidential business information) 
to the authorized applicant under an administrative protective order 
described in paragraph (b) of this section. The term ``business 
proprietary information'' has the same meaning as the term 
``confidential business information'' as defined in Sec. 201.6 of this 
chapter.
    (2) Application. An application under paragraph (a)(1) of this 
section must be made by an authorized applicant on a form adopted by the 
Secretary or a photocopy thereof. An application on behalf of a 
petitioner, a respondent, or another party must be made no later than 
the time that entries of appearance are due pursuant to Sec. 201.11 of 
this chapter. In the event that two or more authorized applicants 
represent one interested party who is a party to the investigation, the 
authorized applicants must select one of their number to be lead 
authorized applicant. The lead authorized applicant's application must 
be filed no later than the time that entries of appearance are due. 
Provided that the application is accepted, the lead authorized applicant 
shall be served with business proprietary information pursuant to 
paragraph (f) of this section. The other authorized applicants 
representing the same party may file their applications after the 
deadline for entries of appearance but at least five (5) days before the 
deadline for filing posthearing briefs in the investigation, or the 
deadline for filing briefs in the preliminary phase of an investigation, 
and shall not be served with business proprietary 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;

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    (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.).
    (4) Forms and determinations. (i) The Secretary may adopt, from time 
to time, forms for submitting requests for disclosure pursuant to an 
administrative protective order incorporating the terms of this rule. 
The Secretary shall determine whether the requirements for release of 
information under this rule have been satisfied. This determination 
shall be made concerning specific business proprietary information as 
expeditiously as possible but in no event later than fourteen (14) days 
from the filing of the information, or seven (7) days in the preliminary 
phase of an investigation, except if the submitter of the information 
objects to its release or the information is unusually voluminous or 
complex, in which case the determination shall be made within thirty 
(30) days from the filing of the information, or ten (10) days in the 
preliminary phase of an investigation. The Secretary shall establish a 
list of parties whose applications have been granted. The Secretary's 
determination shall be final for purposes of review by the U.S. Court of 
International Trade under section 777(c)(2) of the Act.
    (ii) Should the Secretary determine pursuant to this section that 
materials sought to be protected from public disclosure by a person do 
not constitute business proprietary information or were not required to 
be served under paragraph (f) of this section, then the Secretary shall, 
upon request, issue an order on behalf of the Commission requiring the 
return of all copies of such materials served in accordance with 
paragraph (f) of this section.
    (iii) The Secretary shall release business proprietary information 
only to an authorized applicant whose application has been accepted and 
who presents the application along with adequate personal 
identification; or a person 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.
    (iv) An authorized applicant granted access to business proprietary 
information in the preliminary phase of an investigation may, subject to 
paragraph (c) of this section, retain such business proprietary 
information during any final phase of that investigation, provided that 
the authorized applicant has not lost his authorized applicant status 
(e.g., by terminating his representation of an interested party who is a 
party). When retaining business proprietary information pursuant to this 
paragraph, the authorized applicant need not file a new application in 
the final phase of the investigation.
    (b) Administrative protective order. The administrative protective 
order under which information is made available to the authorized 
applicant shall require him to submit to the Secretary a personal sworn 
statement that, in addition to such other conditions as the Secretary 
may require, he shall:
    (1) Not divulge any of the business proprietary information obtained 
under the administrative protective order and not otherwise available to 
him, to any person other than
    (i) Personnel of the Commission concerned with the investigation,
    (ii) The person or agency from whom the business proprietary 
information was obtained,
    (iii) A person whose application for access to business proprietary 
information under the administrative protective order has been granted 
by the Secretary, and
    (iv) Other persons, such as paralegals and clerical staff, who are 
employed or supervised by the authorized applicant;

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who have a need thereof in connection with the investigation; who are 
not involved in competitive decisionmaking for an interested party which 
is a party to the investigation; and who 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 business proprietary information solely for the 
purposes of the Commission investigation then in progress or for 
judicial or other review of such Commission investigation;
    (3) Not consult with any person not described in paragraph (b)(1) of 
this section concerning such business proprietary information without 
first having received the written consent of the Secretary and the party 
or the attorney of the party from whom such business proprietary 
information was obtained;
    (4) Whenever materials (e.g., documents, computer disks, etc.) 
containing such business proprietary information are not being used, 
store such material in a locked file cabinet, vault, safe, or other 
suitable container;
    (5) Serve all materials containing business proprietary information 
as directed by the Secretary and pursuant to paragraph (f) of this 
section;
    (6) Transmit all materials containing business proprietary 
information with a cover sheet identifying the materials as containing 
business proprietary information;
    (7) Comply with the provisions of this section;
    (8) Make true and accurate representations in the authorized 
applicant's application and promptly notify the Secretary of any changes 
that occur after the submission of the application and that affect the 
representations made in the application (e.g., change in personnel 
assigned to the investigation);
    (9) 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 business 
proprietary information, such as charts or notes based on any such 
information received under administrative protective order, and file 
with the Secretary a certificate attesting to his personal, good faith 
belief that all copies of such material have been returned or destroyed 
and no copies of such material have been made available to any person to 
whom disclosure was not specifically authorized.
    (d) 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 business proprietary 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

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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 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 the completion of an investigation 
conducted under subpart B or C of this part, 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 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, 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 
business proprietary information to the Commission during an 
investigation shall at the same time serve complete copies of such 
submissions upon all authorized applicants specified on the list 
established by the Secretary pursuant to paragraph (a)(4) of this 
section, and, except as provided in Sec. 207.3, a nonbusiness 
proprietary version on all other parties. All such submissions must be 
accompanied by a certificate attesting that complete copies of the 
submission have been properly served. In the event that a submission is 
filed before the Secretary's list is established, the document need not 
be accompanied by a certificate of service, but the submission shall be 
served within two (2) days of the establishment of the list and a 
certificate of service shall then be filed.
    (2) If a party's request under paragraph (g) of this section is 
granted, the Secretary shall accept the nondisclosable confidential 
business information into the record. The party shall serve the 
submission containing such information in accordance with the 
requirements of Sec. 207.3(b) and paragraph (f)(1) of this section, with 
the information redacted from the copies served.
    (3) The Secretary shall not accept for filing into the record of an 
investigation submissions filed without a proper certificate of service. 
Failure to comply with paragraph (f) of this section may result in 
denial of party status and such sanctions as the Commission deems 
appropriate. Business proprietary information in submissions must be 
dealt with as required by Sec. 207.3(c).
    (g) Exemption from disclosure--(1) In general. Any person may 
request exemption from the disclosure of business proprietary 
information under administrative protective order, whether the person 
desires to include such information in a petition filed under 
Sec. 207.10, or

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any other submission to the Commission during the course of an 
investigation. Such a request shall only be granted if the Secretary 
finds that such information is nondisclosable confidential business 
information as defined in Sec. 201.6(a)(2) of this chapter. The request 
will be granted or denied not later than thirty (30) days (ten (10) days 
in a preliminary phase investigation) after the date on which the 
request is filed.
    (2) Request for exemption. A request for exemption from disclosure 
must be filed with the Secretary in writing with the reasons therefor. 
At the same time as the request is filed, one copy of the business 
proprietary information in question must be lodged with the Secretary 
solely for the purpose of obtaining a determination as to the request. 
The business proprietary information for which exemption from disclosure 
is sought shall remain the property of the requester, and shall not 
become or be incorporated into any agency record until such time as the 
request is granted. A request should, when possible, be filed two 
business days prior to the deadline, if any, for filing the document in 
which the information for which exemption from disclosure is sought is 
proposed to be included. If the request is denied, the copy of the 
information lodged with the Secretary shall promptly be returned to the 
requester. Such a request shall only be granted if the Secretary finds 
that such information is privileged information, classified information, 
or specific information of a type for which there is a clear and 
compelling need to withhold from disclosure. The Secretary shall 
promptly notify the requester as to whether the request has been 
approved or denied.
    (3) Procedure if request is approved. If the request is approved, 
the person shall file three versions of the submission containing the 
nondisclosable confidential business information in question. One 
version shall contain all business proprietary information, bracketed in 
accordance with Sec. 201.6 of this chapter and Sec. 207.3. The other two 
versions shall conform to and be filed in accordance with the 
requirements of Sec. 201.6 of this chapter and Sec. 207.3, except that 
the specific information as to which exemption from disclosure was 
granted shall be redacted from the submission.
    (4) Procedure if request is denied. If the request is denied, the 
copy of the information lodged with the Secretary shall promptly be 
returned to the requester. The requester may file the submission in 
question without that information, in accordance with the requirements 
of Sec. 207.3.

[44 FR 76468, Dec. 26, 1979, as amended at 59 FR 66723, Dec. 28, 1994; 
61 FR 37829, July 22, 1996]