[Federal Register Volume 77, Number 123 (Tuesday, June 26, 2012)]
[Proposed Rules]
[Pages 38017-38019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15381]
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DEPARTMENT OF COMMERCE
International Trade Administration
19 CFR Part 351
[Docket No. 120613168-2168-01]
RIN 0625-AA92
Regulation Strengthening Accountability of Attorneys and Non-
Attorney Representatives Appearing Before the Department
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of proposed rulemaking and request for comments.
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SUMMARY: The Department of Commerce (the Department) proposes to amend
its regulations to add a subsection that strengthens the accountability
of attorneys and non-attorney representatives who appear in proceedings
before the Import Administration (IA). If this proposed rule is
implemented, the Department will continue its long-standing practice of
permitting attorneys and non-attorney representatives to appear before
IA. The proposed rule provides that both attorneys and non-attorney
representatives will be subject to disciplinary action for misconduct
based upon good cause. The proposed rule will assist the Department in
maintaining the integrity of its proceedings by deterring misconduct by
those who appear before it in antidumping duty (AD) and countervailing
duty (CVD) proceedings. The Department is requesting comments on the
proposed rule as discussed in more detail below.
DATES: The Department is requesting public comment on this proposed
rule. To be assured consideration, all comments must be received no
later than August 10, 2012. All comments should refer to RIN 0625-AA92.
ADDRESSES: To ensure the timely receipt and consideration of comments,
the Department requires all comments to be submitted on-line through
the Federal eRulemaking portal at www.regulations.gov, unless they do
not have access to the Internet. Comments to this notice should be
submitted under docket number ITA-2012-0003. To find this docket, enter
the docket number in the ``Enter Keyword or ID'' window at the
www.regulations.gov home page and click ``Search.'' The site will
provide a search-results page listing all documents associated with
that docket number. Find a reference to the proposed rule notice by
selecting ``Rule'' under ``Document Type'' on the search-results page,
and click on the link entitled ``Submit a Comment.'' The
www.regulations.gov Web site provides the option of making submissions
by filling in a comments field, or by attaching a document. The
International Trade Administration (ITA) prefers submissions to be
provided in an attached document. (For further information on using the
www.regulations.gov Web site, please consult the resources provided on
the Web site by clicking on the ``Help'' tab.)
Commenters who do not have access to the Internet may submit the
original and two copies of each set of comments by mail or hand
delivery/courier. All comments should be addressed to Paul Piquado,
Assistant Secretary for Import Administration, Room 1870, Department of
Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.
The Department will consider all relevant comments regarding the
proposed rule that are received before the close of the comment period.
The Department will not accept comments accompanied by a request that
part or all of the material be treated confidentially because of its
business proprietary nature or for any other reason. All comments
responding to this notice will be a matter of public record and will be
available for inspection at IA's Central Records Unit (Room 7046 of the
Herbert C. Hoover Building) or on the Federal eRulemaking Portal at
www.regulations.gov.
Any questions concerning file formatting, document conversion,
access to the Internet, or other electronic filing issues should be
addressed to Andrew Lee Beller, Import Administration Webmaster, at
(202) 482-0866, email address: [email protected].
FOR FURTHER INFORMATION CONTACT: Michele Lynch, Senior Counsel, Office
of the General Counsel, Office of Chief Counsel for Import
Administration, or Eric Greynolds, International Trade Program Manager,
Office 3, Import Administration, U.S. Department of Commerce, 1401
Constitution Avenue NW., Washington, DC 20230, 202-482-2879 or 202-482-
6071, respectively.
SUPPLEMENTARY INFORMATION: In August 2010, in support of the National
Export Initiative (NEI), the Department announced a number of proposals
to strengthen the administration of the U.S. AD and CVD laws. One
proposal addressed strengthening the accountability of attorneys and
non-attorneys who practice before the Department. This proposal
advances the purpose of the NEI by continuing rigorous enforcement of
U.S. trade laws.
For decades, consistent with IA's regulations, attorneys and non-
attorney representatives have practiced before IA without completing an
application or obtaining a license from the Department. The proposed
rule continues this long-standing practice and expressly identifies
persons who may appear before the agency, including both attorneys and
non-attorney representatives, and provides that such practitioners may
be required to demonstrate to the agency their acceptability to act as
practitioners. The proposed rule also (i) Establishes a good cause
standard for the application of sanctions for misconduct, (ii)
identifies possible sanctions for misconduct including suspension and
barring one from practice before the agency or a lesser sanction (that
may be public or private) at the Secretary's discretion, and (iii)
permits attorneys and representatives to have an opportunity to present
their views on the matter to the Department. If attorneys or
representatives are suspended or barred from practice before the
Department, the proposed rule provides that their names will appear on
a public register of suspended or barred attorneys and representatives.
[[Page 38018]]
The proposed rule is modeled after the U.S. International Trade
Commission's rule, 19 CFR 201.15, with some modifications. Certain of
the modifications are necessary to ensure that the proposed rule uses
the same terms already used by IA in its regulations or that two terms
have the same intended meaning. Another modification provides that the
Department will maintain a public registry of persons who are suspended
or barred from practice. The public nature of the registry will assist
the Department in its objective, i.e., maintaining the integrity of its
proceedings by deterring misconduct by attorneys and non-attorney
representatives who appear before it.
Related Rulemaking
In 2004, the Department published a notice of inquiry seeking
public comment about IA's certification requirements. See Certification
and Submission of False Statements to Import Administration During
Antidumping and Countervailing Duty Proceedings--Notice of Inquiry, 69
FR 3562 (January 26, 2004) (2004 Notice of Inquiry) and Certification
and Submission of False Statements to Import Administration During
Antidumping and Countervailing Duty Proceedings--Notice of Proposed
Rulemaking and Request for Comments, 69 FR 56738 (September 22, 2004).
In response, IA received public comment on whether it should strengthen
its certification process or promulgate regulations concerning those
who provide false statements or engage in fraudulent activity before
the Department. The certification process is currently the subject of a
separate rulemaking. See Certification of Factual Information to Import
Administration During Antidumping and Countervailing Duty Proceedings:
Interim Final Rule, 76 FR 7491 (February 10, 2011) (2011 Interim Final
Rule) and Certification of Factual Information to Import Administration
During Antidumping and Countervailing Duty Proceedings: Supplemental
Interim Final Rule, 76 FR 54697 (September 2, 2011). However, one of
the questions asked by the Department in 2004 was whether attorneys and
other professionals appearing before the Department should be subject
to regulation for misconduct before the Department. The Department
received comments in 2004 both supporting and opposing such regulation.
Those comments are not part of this proposed rulemaking and will not be
considered. As set forth above, the Department seeks public comment on
this 2012 proposed rule.
In promulgating the 2011 Interim Final Rule, the Department
included in the proposed revision to the certification regulation a
reference to 18 U.S.C. 1001, reminding individuals conducting business
with the Department and their representatives that U.S. law imposes
criminal sanctions upon parties who knowingly and willfully make
material false statements to the U.S. Government. In its response to
public comments, the Department stated that it intended to continue to
refer certification violations to offices better equipped to handle
such matters, such as the Department's Office of the Inspector General
(OIG). See 2011 Interim Final Rule, 76 FR at 2493-94. The promulgation
of this proposed rule strengthening the accountability of attorney and
non-attorney representatives is consistent with the 2011 Interim Final
Rule. The Department will refer instances of alleged certification
violations to the OIG. However, not every case of misconduct
constitutes a certification violation. Under this proposed rule, when
the Department either receives allegations that an attorney or non-
attorney representative appearing before it has engaged in misconduct
or inappropriate behavior, or is otherwise aware of such misconduct or
behavior, for good cause and to protect the integrity of its
proceedings, it will take disciplinary action against the offending
attorney or non-attorney representative. Attorneys and non-attorney
representatives who are found, after referral to the appropriate
office, to have engaged in a certification violation when appearing
before the Department will also be subject to disciplinary action under
this proposed rule. In all cases, disciplinary action may involve
reprimand (public or private), suspension or disbarment from appearing
before the Department.
Classification
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., the Chief Counsel for Regulation at the Department of Commerce
certified to the Chief Counsel for Advocacy, Small Business
Administration, that the proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities.
A description of the action, why it is being considered, and the legal
basis for this action are contained in the preamble to this proposed
rule. The factual basis for this certification is as follows.
The purpose of this rule is to strengthen the accountability of
attorneys and non-attorney representatives who appear before the
Department. The objective of the amendment is to implement measures
which continue to permit attorneys and non-attorneys to represent
persons appearing in proceedings before the Department while at the
same time providing that all such persons are subject to public
disciplinary action for misconduct before the Department.
The entities who would be impacted by this rule are attorneys and
non-attorney representatives who appear in proceedings before the
Import Administration. The Department cannot elaborate on how many of
the regulated entities would be considered small under the Small
Business Administration's size standards because it does not collect
such data. Although the Department does not collect data on attorneys
or non-attorney representatives appearing before it, historically,
firms have included major law firms in business in Washington, DC, New
York, and Chicago. We do not anticipate that a substantial number of
small entities would be impacted by this rule.
This proposed rule is expected to have very small economic impacts
to the regulated entities as it is procedural in nature. The rule
establishes a ``good cause'' standard to be applied to discipline
attorneys and non-attorney representatives appearing before the
Department, yet it does not alter the Department's long-standing
practice of allowing such representation. There is no application fee
to appear before the Department. There also are no monetary penalties
assessed if the Department determines that good cause exists for
sanctioning an attorney or non-attorney representative. The proposed
rule could be beneficial to small entities impacted by this rule
because it continues to allow parties to use non-attorney
representatives in Department proceedings, rather than requiring them
to retain an attorney, which might result in financial savings to the
small entities. However, if the Department suspends or disbars an
attorney or non-attorney representative as a result of this rule, it
may result in some economic impact, unquantifiable at this time, as
that person would not be able to practice before the Department. But,
the Department does not anticipate that a substantial number of small
entities would be impacted because it anticipates that attorneys and
non-attorney representatives appearing before it will conduct
themselves professionally and, historically, many of
[[Page 38019]]
the attorneys and non-attorney representatives who appear before the
Department are from larger firms. For these reasons, the Chief Counsel
for Regulation certified this rule would not result in a significant
economic impact to a substantial number of small entities.
Paperwork Reduction Act
It has been determined that this rulemaking does not contain an
information collection subject to the Paperwork Reduction Act.
Executive Order 12866
It has been determined that the proposed rulemaking is not
significant for purposes of Executive Order 12866.
Executive Order 13132
It has been determined that the proposed rulemaking does not
contain federalism implications warranting the preparation of a
federalism assessment.
List of Subjects in 19 CFR Part 351
Administrative practice and procedure, Antidumping duties,
Countervailing duties.
Dated: June 15, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
For the reasons stated above, the Department proposes to amend 19
CFR part 351 as follows:
PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES
1. The authority citation for 19 CFR 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. Add Sec. 351.313 to subpart C to read as follows:
Sec. 351.313 Attorneys or representatives.
No register of attorneys or representatives who may practice before
the Department is maintained. No application for admission to practice
is required. Any person desiring to appear as attorney or
representative before the Department may be required to show to the
satisfaction of the Secretary his acceptability in that capacity. Any
attorney or representative practicing before the Department, or
desiring so to practice, may for good cause shown be suspended or
barred from practicing before the Department, or have imposed on him
such lesser sanctions (e.g., public or private reprimand) as the
Secretary deems appropriate, but only after he has been accorded an
opportunity to present his views in the matter. The Department will
maintain a public register of attorneys and representatives suspended
or barred from practice. ``Attorney'' pursuant to this subpart and
``legal counsel'' in Sec. 351.303(g) have the same meaning.
``Representative'' pursuant to this subpart and in Sec. 351.303(g) has
the same meaning.
[FR Doc. 2012-15381 Filed 6-25-12; 8:45 am]
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