go back one page    

ADMINISTRATIVE PROTECTIVE ORDER HANDBOOK

UNITED STATES DEPARTMENT OF COMMERCE
INTERNATIONAL TRADE ADMINISTRATION


This handbook is intended to assist authorized representatives in protecting business proprietary information submitted in the Department's antidumping duty ("AD") and countervailing duty ("CVD") proceedings. The handbook summarizes the requirements contained in the Department's regulations (351.103 and 351.305 - .306) , and suggests procedures firms can employ internally to protect business proprietary information they receive under an administrative protective order ("APO") in the course of a proceeding. The statutory basis for these regulations is section 777(c)(1)(A) of the Tariff Act of 1930,(19 U.S.C. 1677f(c)(1)(A)), as amended. The Department's revised regulations allow representatives' firms the flexibility to protect business proprietary information in a manner best suited to their practice. The suggestions in this handbook are intended to assist firms in this process. We recognize that not all of the suggestions will be applicable to all firms.


Table of Contents


  1.  Types of Information to Which APO Procedures Apply

  2.  The APO

  3.  The APO Application - Form ITA-367 (5.98)

  4.  The APO Service List

  5.  Firm's Procedures For Protecting Business Proprietary Information

  6.  Written Procedures

  7.  Receiving Business Proprietary Information

  8.  Tracking Business Proprietary Information Material

  9.  Storage of Business Proprietary Information

10.  Labeling Business Proprietary Information

11.  Who May Pick up APO Information Released by the Department

12.  Electronic Business Proprietary Information

13.  Facsimile Transmission

14.  Procedures to Minimize APO Violations

15.  Certification Requirements and Destruction of Business Proprietary Information

16.  Acknowledgement for Support Staff (Sample Format)


Types of Information to Which APO Procedures Apply


APO procedures apply to the vast quantities of business proprietary information submitted to or obtained by the Department in the course of its AD and CVD proceedings from both companies and foreign governments as well as the U.S. domestic industry and other sources. Business proprietary information is defined
in 19 C.F.R. 351.104. Some examples are.

  1. documents identified as proprietary for which proprietary treatment has been claimed by the submitter and proprietary treatment has been granted by the Department. If the status of information claimed as proprietary is in question, the information is treated as proprietary until the Department decides it is public and the submitter has had the opportunity to resubmit or withdraw it. Failure to treat information as business proprietary information where there is a dispute over whether it is public can result in an APO violation.
  2. documents generated by the Department identified as containing business proprietary information;
  3. documents generated by the recipient of APO protected information that contain business proprietary information of another party;
  4. drafts of documents and working notes, charts or graphs that contain APO protected information;
  5. any electronic computer media, such as tape, disk, diskette, Bernoulli cartridge, removable disk pack, etc., and information resident in computer memory that contains APO protected information;
  6. oral communications that involve the discussion of APO protected information.

The APO

The Department may disclose business proprietary information it receives in the course of its proceedings to representatives of interested parties authorized to receive such information by the Department under an APO. The Department places an APO on the record of a proceeding two days after a petition is filed in the case of an investigation, and five days after initiation of any other proceeding. Anyone wanting access to business proprietary information as a representative of an interested party to the proceeding must file an APO application, Form ITA-367 (5.98) with the Department, as discussed below. No applicant should handle business proprietary information until the Department has approved the application and placed the authorized representative on the APO Service List for the proceeding.

By applying for APO access, applicants are agreeing to be bound by the terms of the APO. Therefore, applicants should review the Department's APO to ensure that they are familiar with the requirements for protecting and using the business proprietary information released to them under APO. While it is the intent of the Department to issue a "Standard APO" in each case, it is possible that there may be slight variations in particular APOs. Additionally, each APO will authorize the use of the APO information for that particular segment of the proceeding as well as in certain other segments as authorized by the regulations. It is the responsibility of the applicant to be fully aware of the requirements of the APO in a segment of a proceeding.

In addition, some staffing issues a firm should consider before filing APO applications are as follows:

  • who determines which professionals will apply to the Department for access to business proprietary information under APO or which support staff will be needed to handle or work with documents containing business proprietary information;
  • who ensures that professional and support staff have been properly briefed on the APO requirements and the firm's APO procedures;
  • who reviews the Department's APO Service List to ensure that each of the applicants are listed;
  • who ensures that support staff have signed the required "Acknowledgment For Support Staff"; and
  • who determines the appropriate staff member or contract employee to deliver and pick up business proprietary documents to/from the Department and serve parties subject to an APO.

The APO Application

FORM ITA-367 (5.98)

The APO application may be reproduced on the applicant's word processing system. Printed copies of the standard form, or a copy of the standard form on computer disk, may be obtained from the Central Records Unit's Dockets Center, Room 1870, U.S. Department of Commerce, Pennsylvania Avenue and 14th Street, NW, Washington, D.C. 20230. The standard form is also available on Import Administration's Home Page at:

http://www.ita.doc.gov./import_admin/records/

Applicants must submit the completed original and 5 copies of the entire APO application in accordance with the requirements set forth in 19 C.F.R . 351.303. The APO application also is subject to the service and other requirements of 19 C.F.R . 351.303

In an investigation, an application for access to business proprietary information under APO may be submitted after the filing of the petition, and in an administrative review, and other administrative proceedings, any time after the date of publication in the Federal Register of the notice of initiation under 19 C.F.R. 351.221 or 351.225. Representatives should file an APO application as soon in the proceeding as possible. Although applications for APO's may be submitted up to the date the case briefs are due where an interested party has decided to hire a representative later in the proceeding, these late requests should be rare. Requests for business proprietary information after major submissions have been filed are very burdensome on the parties, who must separately serve the new representative with all business proprietary information that has been submitted to date in the proceeding. Because of this additional burden, parties filing an APO application after major submissions have been made by other parties are 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 segment of the proceeding, if payment is requested. Parties generally have two days once the applicant is added to the APO Service List in which to serve an authorized applicant with its business proprietary submissions previously submitted to the Department. However, late APO applicants have five days in which to be served. We expect late APO applications to be the exception, not the rule.

Requests to amend the APO Service List may be filed at any time. If a party wishes to amend the APO Service List to add additional representatives or correct a deficient application, the applicant must submit the entire APO application. Individual sections of the application filed separately, such as the signature page, will not be accepted.

The APO Service List


Once a firm has filed an APO application, the Department must add the applicants to the APO Service List for the segment of the proceeding within five days, unless there is an objection from another interested party to the proceeding. The Department must resolve objections within 30 days. The APO Service List will be available on Import Administration's home page and will be faxed to each authorized applicant upon inclusion of his or her name on the list.

Applicants should review the APO Service List to ensure that all individuals who submitted an APO application are individually named on the APO Service List. An applicant should never assume that he or she has been authorized access by the Department because he or she has submitted an application. Individuals are not authorized applicants until their names are included on the APO Service List. Disclosing business proprietary information to an applicant before the applicant is approved is a violation of one's APO, and such violations, however inadvertent, have occurred. In some instances, a representative handed business proprietary information to a colleague in the same firm who had applied but not been approved for APO access. In other instances, a representative has served an applicant from another firm before the applicant had been approved. These kinds of violations should be minimized because the Department is quickly processing applications. Nevertheless, the burden is on the person disclosing business proprietary information to ensure that an applicant has been approved.

It may be helpful for authorized applicants to maintain an updated personal copy of the Department's APO Service List and APO for each case in which they are involved.

Firm's Procedures for Protecting Business Proprietary Information


Section 351.305(a) of the Department's regulations requires an authorized applicant to establish and follow procedures to ensure the protection of business proprietary information. The main requirement is that no employee of the authorized applicant's firm may release business proprietary information received under an APO to any person other than the submitting party, an authorized applicant, or the appropriate Department official directly involved in the proceeding. The Department is allowing the firms to decide what internal procedures are best for them to ensure that this requirement is met.

The following are issues a firm should consider in adopting internal procedures for protecting business proprietary information. The ideas presented in this Handbook are intended to assist trade practitioners in establishing their own internal procedures to protect business proprietary information . They are suggestions only and should not be interpreted as requirements. Nevertheless, if a firm is alleged to have violated an APO we may look at its internal procedures to determine whether the firm has adequate measures in place.

Written Procedures


The Department urges all firms to establish written APO procedures that are suitable to the operations of the firm. We recommend that all employees of the firm who may have access to business proprietary information released under APO in an AD or CVD proceeding, have personal copies of the firm's APO procedures for periodic review. Firms may also wish to brief orally all employees who are assigned to work with information subject to an APO on the firm's APO procedures to ensure that the procedures are understood. Periodic APO training covering topics of concern might also be helpful for all employees working with business proprietary information.

To the extent possible, the firm's APO procedures should always be followed. Deviation from the procedures increases the risk of an APO violation.

Receiving Business Proprietary Information


Protection of business proprietary information should begin the minute the firm receives it. It is essential to have procedures to mark, track and store business proprietary information to ensure it is not lost or inadvertently served on a person not authorized to receive such information. Procedures should be adopted to ensure that when business proprietary information is first received an authorized applicant will be assigned to mark and distribute it in accordance with the terms of the APO.

Tracking Business Proprietary Information Material


In order to maintain control of business proprietary information in a proceeding, firms should establish a tracking system, so that a document received under an APO can be located at any time.

One system that has been effective for many firms is to establish an APO file for each segment of a proceeding in which the firm is an authorized applicant. Firms commonly create an index or log system prior to the receipt of business proprietary information. While an APO log is no longer a requirement of the Department's APO, an index or log system has been proven to be a useful internal tool in tracking business proprietary information.

Generally, additional copies of documents subject to an APO should not be made unless the copies are absolutely necessary. If additional copies are made, the number of copies should be noted or recorded somewhere, perhaps in an APO index or log if one is maintained. This will enable the firm to better track all documents subject to APO and to ensure that all such documents are destroyed in a timely fashion.

In addition to the business proprietary information itself, the case specific APO file might include the following:

  • an "APO Application" file folder in which to keep a copy of the applications signed by the attorney or non-attorney applicants;
  • an "Acknowledgment For Support Staff" file folder (sample "Acknowledgment" attached); and
  • a file folder for the Department's APO issued in the segment of the proceeding.

Storage of Business Proprietary Information


Internal procedures should account for the following issues:

  • Where will the business proprietary information be stored?
  • Is it necessary to control physical access to the room and/or containers in which business proprietary information is kept?
  • What are the systems for storing, labeling, and securing the business proprietary information, and for segregating materials in different cases?

Labeling Business Proprietary Information


Proper labeling of business proprietary information is crucial to avoid APO violations. Some of the issues a firm should consider in adopting procedures to protect business proprietary information include:

  • how is information subject to APO marked, bracketed, and deleted to create proper proprietary, public, and APO versions of internally generated documents (based on past experience, it appears that electronically deleting proprietary information from APO and public versions of proprietary documents is more effective than using magic-marker, white-out or tape);
  • what the firm procedures are for reviewing internally generated documents to insure they comply with APO requirements;
  • what the firm procedures are for coordinating the copying of documents containing information subject to APO;
  • how will the firm account for all copies of the proprietary and APO versions of documents and the destruction of any extra copies;
  • what procedures will the firm use to review the various versions of internally generated documents to ensure that they are correct prior to filing with the Department; and
  • how will the firm ensure that only public documents or documents containing the client's own business proprietary information are transmitted to the client.

Following is a summary of some regulatory requirements, and suggestions for procedures that have been found helpful in the past.

All business proprietary documents served on a firm subject to an APO or internally generated documents containing business proprietary information should be clearly marked with the notation "Business Proprietary Treatment Requested". Historically, this notation has been in red on the cover page and any pages on which business proprietary information appeared. Marking the notation in red is no longer a requirement; however, it may assist parties in identifying documents containing business proprietary information. Working notes or drafts of documents should also be properly marked as containing business proprietary information. Obsolete drafts should be quickly destroyed.

When referring to business proprietary information in writing, we strongly urge you to bracket all business proprietary information (i.e., text, charts, etc.) AS YOU WORK. Do not wait until the document is in final form. If you are unsure of the proprietary nature of certain information, either [bracket it] or don't use the questionable information. Waiting until the document is in final form significantly increases the risk of failing to identify information subject to APO. Failure to adequately bracket business proprietary information in proprietary submissions or to delete business proprietary information in public documents is the number one cause of APO violations.

The regulations require for the first time the identification of the source of the business proprietary information in submissions containing business proprietary information from multiple persons for the purpose of avoiding APO violations. Section 351.306(c) requires that in the case of submissions, such as briefs, that include business proprietary information of different parties, the submitting party 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 Department is not requiring that multiple source data be identified in any particular manner. We suggest however, that parties avoid the use of multiple brackets, such as triple "[[[ ]]]" or quadruple "[[[[ ]]]]" bracketing systems, as this type of marking could cause confusion and perhaps lead to an APO violation. Paragraph (b) of 351.304. specifically provides for the use of single brackets to identify business proprietary information and double brackets to identify business proprietary customer names in an investigation and other information for which the submitting person claims that there is a clear and compelling need to withhold from disclosure under APO.

Avoid the use of business proprietary information in footnotes if at all possible. Business proprietary information in footnotes may often be overlooked in preparing APO and/or public versions of a submission, even when doing so electronically.

It is not prudent to summarize another party's business proprietary information in a public document, as the summarization may inadvertently divulge the other party's business proprietary information. Section 351.304(c)(1) of the APO regulations states that a submitter should not create a public summary of business proprietary information of another person.

Before filing and before serving any party on the service list, have a team review all versions of a document (proprietary, public, and APO versions). We recommend the team:

  • include the lead attorney subject to the APO;
  • double-check their service list against the APO Service List;
  • double-check the versions being served on parties on the APO Service List; and
  • triple check the version being sent to the client.

Who May pick up APO Information Released by the Department

Support staff who have signed the required "Acknowledgment for Support Staff," including subcontracted individuals (e.g., courier services) employed by the firm, are allowed to pick up business proprietary information released by the Department. The Department requires the firm employee to present (1) a letter of identification from the firm, on firm letterhead, authorizing the Department to release the business proprietary information to that individual, and (2) a picture ID. The Department will not release business proprietary information to the representative of an authorized applicant without the required identification.

Electronic Business Proprietary Information


In order to control access to electronic business proprietary information, parties may wish to ensure that their computer system restricts access to all computer files containing APO information by:

  • limiting access to APO-authorized personnel through the use of individual user-names and passwords and any other appropriate security-group designations; and
  • restricting access to the storage devices for computer files containing APO information to APO-authorized personnel.

We suggest that APO information not be stored on the hard disk drive of a computer processing system. Unless the entire hard disk drive is reformatted, it is unlikely that business proprietary information can be properly deleted at the conclusion of a case.

In order to prevent disclosure to persons not subject to an APO, no business proprietary information may be kept on a computer system which is accessible by a modem. See paragraph 3 of the Standard APO.

Facsimile Transmission


The Department no longer prohibits facsimile transmission of APO information. Authorized representatives should be present at both the point of transmission and the point of reception to avoid unauthorized disclosure. It may also be helpful to send a test page and obtain confirmation from the receiving point to guard against mis-dialing. Additional safeguards may be appropriate for the operations of individual firms.

Procedures to Minimize APO Violations


History tells us that most APO violations are inadvertent. Any potential damage from inadvertent disclosure can be minimized if a firm has procedures in place to immediately take action where such a violation has occurred. This includes assigning responsibility for notifying the Department's APO office and other parties, retrieving improperly served business proprietary information, determining how the violation occurred and taking steps to prevent a recurrence.

Certification Requirements and Destruction of Business Proprietary Information


The APO requires the authorized applicant to destroy business proprietary information received under APO at the end of the time authorized by the APO. The deadline is intended to give the parties the opportunity to file for a judicial protective order if the party is going to initiate litigation requiring the use of business proprietary information received in the relevant segment of the proceeding. It may be many years before the business proprietary information is required to be destroyed at the end of multiple layers of litigation. Following are issues firms should address:

  • what are the procedures for ensuring that all copies of documents and electronic media containing information subject to APO are destroyed at the end of the period allowed for access, and that the appropriate certification is filed with the Department;
  • what are the procedures for ensuring that the appropriate notification is filed with the Department if changed circumstances affect an authorized applicant's representation of an interested party (i.e., reassignment, departure from firm); and
  • what are the procedures for ensuring that a copy of the judicial protective order is provided to the Department if there is a challenge to the Department's determination in a segment of a proceeding.

SAMPLE FORMAT



________________________________________________
                                                )
The Matter of the                               )
Antidumping/Countervailing Duty (indicate one)	)
Proceeding on __________________________________)
         from __________________________________)
                          (Country)             )
________________________________________________)

ACKNOWLEDGMENT FOR SUPPORT STAFF

I have read the administrative protective order ("APO") issued by Import Administration in
the above captioned segment of the proceeding, and the application for APO filed by the
lead signatory of this firm. I agree to be bound by the terms and conditions stated in the
APO and application for APO, and to maintain the proprietary status of the information as
provided for under 19 C.F.R. 351.305 or 19 C.F.R. 354.


 
Name                     Signature                     Title                    DATE OF FIRST ACCESS