PART 354—PROCEDURES FOR IMPOSING SANCTIONS FOR VIOLATION OF AN ANTIDUMPING OR COUNTERVAILING DUTY ADMINISTRATIVE PROTECTIVE ORDER Authority: 5 U.S.C. 301, and 19 U.S.C. 1677. Source: 53 FR 47920, Nov. 28, 1988, unless otherwise noted. Editorial Note: Nomenclature changes to part 354 appear at 63 FR 24403, May 4, 1998, and at 78 FR 62418, Oct. 22, 2013. § 354.1 Scope. This part sets forth the procedures for imposing sanctions for violation of an administrative protective order issued under 19 CFR 351.306, or successor regulations, as authorized by 19 U.S.C. 1677f(c). [53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24403, May 4, 1998] § 354.2 Definitions. For purposes of this part: Administrative protective order (APO) Business proprietary information Charged party Chief Counsel Date of service Days Department Deputy Under Secretary Director Lesser included sanction Parties Presiding official Proprietary information Secretary 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 Under Secretary [63 FR 24403, May 4, 1998] § 354.3 Sanctions. (a) A person determined under this part to have violated an administrative protective order may be subjected to any or all of the following sanctions: (1) Barring such person from appearing before the International Trade Administration to represent another for a designated time period from the date of publication in the Federal Register (2) Denying the person access to business proprietary information for a designated time period from the date of publication in the Federal Register (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. (b)(1) The firm of which a person determined to have violated an administrative protective order is a partner, associate or employee; any partner, associate, employer, or employee of such person; and any person represented by such person may be barred from appearing before the International Trade Administration for a designated time period from the date of publication in the Federal Register (2) Each person against whom sanctions are proposed under paragraph (b)(1) of this section is entitled to all the administrative rights set forth in this part separately and apart from rights provided to a person subject to sanctions under paragraph (a) of this section, including the right to a charging letter, right to representation, and right to a hearing, but subject to joinder or consolidation by a presiding official under § 354.12(b). [53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24404, May 4, 1998] § 354.4 Suspension of rules. Upon request by the Deputy Under Secretary, a charged or affected party, or the APO Sanctions Board, a presiding official may modify or waive any rule in the part upon determining that no party will be unduly prejudiced and the ends of justice will thereby be served and upon notice to all parties. § 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) The following examples of actions that constitute violations of an administrative protective order shall serve as guidelines to each person subject to an administrative protective order. These examples do not represent an exhaustive list. Evidence that one of the acts described in the guidelines has been committed, however, shall be considered by the Deputy Under Secretary as reasonable cause to believe a person has violated an administrative protective order, within the meaning of § 354.6. (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. (3) Loss of business proprietary information. (4) Failure to return or destroy all copies of the original documents and all notes, memoranda, and submissions containing business proprietary information at the close of the proceeding for which the data were obtained by burning or shredding of the documents or by erasing electronic memory, computer disk, or tape memory, as set forth in the administrative protective order. (5) Failure to delete business proprietary information from the public version of a brief or other correspondence filed with the Department. (6) Disclosure of business proprietary information during a public hearing. (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. (8) Use of business proprietary information submitted for a countervailing duty investigation or administrative review during an antidumping duty investigation or administrative review, or vice versa. [53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24404, May 4, 1998] § 354.6 Initiation of proceedings. (a) In general. (b) Sanctions. (c) Warning. (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. [63 FR 24404, May 4, 1998] § 354.7 Charging letter. (a) Contents of Letter. (1) A statement of the allegation that an administrative protective order has been violated and the basis thereof; (2) A statement of the proposed sanctions; (3) A statement that the charged or affected party is entitled to review the documents or other physical evidence upon which the charge is based and the method for requesting access to, or copies of, such documents; (4) A statement that the charged or affected party is entitled to a hearing before a presiding official if requested within 30 days of the date of service of the charging letter and the procedure for requesting a hearing, including the name, address, and telephone number of the person to contact if there are further questions; (5) A statement that the charged or affected party has a right, if a hearing is not requested, to submit documentary evidence to the Deputy Under Secretary and an explanation of the method for submitting evidence and the date by which it must be received; and (6) A statement that the charged or affected party has a right to retain counsel at the party's own expense for purposes of representation. (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 § 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 § 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. (c) Service of charging letter on a resident of the United States. (i) Mailing a copy by registered or certified mail addressed to the charged or affected party at the party's last known address; (ii) Leaving a copy with the charged or affected party or with an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service for the party; or (iii) Leaving a copy with a person of suitable age and discretion who resides at the party's last known dwelling. (2) Service made in the manner described in paragraph (c) (ii) or (iii) of this section shall be evidenced by a certificate of service signed by the person making such service, stating the method of service and the identity of the person with whom the charging letter was left. (d) Service of charging letter on a non-resident. [53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24405, May 4, 1998] § 354.8 Interim sanctions. (a) If the Deputy Under Secretary concludes, after issuing a charging letter under § 354.7 and before a final decision is rendered, that interim sanctions are necessary to protect the interests of the Department or others, including the protection of business proprietary information, the Deputy Under Secretary may petition a presiding official to impose such sanctions. (b) The presiding official may impose interim sanctions against a person upon determining that: (1) There is probable cause to believe that there was a violation of an administrative protective order and the Department is likely to prevail in obtaining sanctions under this part, (2) The Department or others are likely to suffer irreparable harm if the interim sanctions are not imposed, and (3) The interim sanctions are a reasonable means for protecting the rights of the Department or others while preserving to the greatest extent possible the rights of the person against whom the interim sanctions are proposed. (c) Interim sanctions which may be imposed include any sanctions that are necessary to protect the rights of the Department or others, including, but not limited to: (1) Denying a person further access to business proprietary information. (2) Barring a person from representing another person before the International Trade Administration. (3) Barring a person from appearing before the International Trade Administration, and (4) Requiring the person to return material previously provided by the Department 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. (d) The Deputy Under Secretary will notify the person against whom interim sanctions are sought of the request for interim sanctions and provide to that person the material submitted to the presiding official to support the request. The notice will include a reference to the procedures of this section. (e) A person against whom interim sanctions are proposed has a right to oppose the request through submission of material to the presiding official. The presiding official has discretion to permit oral presentations and to allow further submissions. (f) The presiding official will notify the parties of the decision on interim sanctions and the basis therefor within five days of the conclusion of oral presentations or the date of final written submissions. (g) If interim sanctions have been imposed, the investigation and any proceedings under this part will be conducted on an expedited basis. (h) An order imposing interim sanctions may be revoked at any time by the presiding official and expires automatically upon the issuance of a final order. (i) The presiding official may reconsider imposition of interim sanctions on the basis of new and material evidence or other good cause shown. The Deputy Under Secretary or a person against whom interim sanctions have been imposed may appeal a decision on interim sanctions to the APO Sanctions Board, if such an appeal is certified by the presiding official as necessary to prevent undue harm to the Department, a person against whom interim sanctions have been imposed or others, or is otherwise in the interests of justice. Interim sanctions which have been imposed remain in effect while an appeal is pending, unless the presiding official determines otherwise. (j) The Deputy Under Secretary may request a presiding official to impose emergency interim sanctions to preserve the status quo. Emergency interim sanctions may last no longer than 48 hours, excluding weekends and holidays. The person against whom such emergency interim sanctions are proposed need not be given prior notice or an opportunity to oppose the request for sanctions. The presiding official may impose emergency interim sanctions upon determining that the Department is, or others are, likely to suffer irreparable harm if such sanctions are not imposed and that the interests of justice would thereby be served. The presiding official will promptly notify a person against whom emergency sanctions have been imposed of the sanctions and their duration. (k) If a hearing has not been requested, the Deputy Under Secretary will ask the Under Secretary to appoint a presiding official for making determinations under this section. § 354.9 Request for a hearing. (a) Any party may request a hearing by submitted a written request to the Under Secretary within 30 days after the date of service of the charging letter. However, the Deputy Under Secretary may request a hearing only if the interests of justice would thereby be served. (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. [53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24405, May 4, 1998] § 354.10 Discovery. (a) Voluntary discovery. (b) Interrogatories and requests for admissions or production of documents. (c) Depositions. (d) Enforcement. (e) Role of the Under Secretary. § 354.11 Prehearing conference. (a)(1) If an administrative hearing has been requested, the presiding official will direct the parties to attend a prehearing conference to consider: (i) Simplification of issues; (ii) Obtaining stipulations of fact and of documents to avoid unnecessary proof; (iii) Settlement of the matter; (iv) Discovery; and (v) Such other matters as may expedite the disposition of the proceedings. (2) Any relevant and significant stipulations or admissions will be incorporated into the initial decision. (b) If a prehearing conference is impractical, the presiding official will direct the parties to correspond with each other or to confer by telephone or otherwise to achieve the purposes of such a conference. § 354.12 Hearing. (a) Scheduling of hearing. (b) Joinder or consolidation. (c) Hearing procedures. (d) Rights of parties. (1) Introduce and examine witnesses and submit physical evidence, (2) Confront and cross-examine adverse witnesses, (3) Present oral argument, and (4) Receive a transcript or recording of the proceedings, upon request, subject to the presiding official's orders regarding sealing the record. (e) Representation. (f) Ex parte communications. ex parte § 354.13 Proceeding without a hearing. If no party has requested a hearing, the Deputy Under Secretary, within 40 days after the date of service of a charging letter, will submit for inclusion into the record and provide each charged or affected party information supporting the allegations in the charging letter. Each charged or affected party has the right to file a written response to the information and supporting documentation within 30 days after the date of service of the information provided by the Deputy Under Secretary unless the Deputy Under Secretary alters the time period for good cause. The Deputy Under Secretary may allow the parties to submit further information and argument. § 354.14 Initial decision. (a) Initial decision. (b) Findings and conclusions. (c) Finality of decision. § 354.15 Final decision. (a) APO Sanctions Board. (b) Comments on initial decision. (c) Final decision by the APO Sanctions Board. (d) Contents of final decision. [53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24405, May 4, 1998] § 354.16 Reconsideration. Any party may file a motion for reconsideration with the APO Sanctions Board. The party must state with particularity the grounds for the motion, including any facts or points of law which the party claims the APO Sanctions Board has overlooked or misapplied. The party may file the motion within 30 days of the issuance of the final decision or the adoption of the initial decision as the final decision, except that if the motion is based on the discovery of new and material evidence which was not known, and could not reasonably have been discovered through due diligence prior to the close of the record, the party shall file the motion within 15 days of the discovery of the new and material evidence. The party shall provide a copy of the motion to all other parties. Opposing parties may file a response within 30 days of the date of service of the motion. The response shall be considered as part of the record. The parties have no right to an oral presentation on a motion for reconsideration, but the Board may permit oral argument at its discretion. If the motion to reconsider is granted, the Board will review the record and affirm, modify, or reverse the original decision or remand the matter for further consideration to a presiding official or the Deputy Under Secretary, as warranted. § 354.17 Confidentiality. (a) All proceedings involving allegations of a violation of an administrative protective order shall be kept confidential until such time as the Department makes a final decision under these regulations, no longer subject to reconsideration, imposing a sanction. (b) The charged party or counsel for the charged party will be granted access to business proprietary information in these proceedings, as necessary, under administrative protective order, consistent with the provisions of 19 CFR 351.305(c), or their successor regulations. [53 FR 47920, Nov. 28, 1988, as amended at 63 FR 24405, May 4, 1998] § 354.18 Public notice of sanctions. If there is a final decision under § 354.15 to impose sanctions, or if a charging letter is settled under § 354.7(b), notice of the Secretary's decision or of the existence of a settlement will be published in the Federal Register. [63 FR 24405, May 4, 1998] § 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. [63 FR 24405, May 4, 1998]