[Federal Register Volume 77, Number 123 (Tuesday, June 26, 2012)]
[Proposed Rules]
[Pages 38017-38019]
From the Federal Register Online via the Government Printing 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: webmaster-support@ita.doc.gov.

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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