[Federal Register Volume 59, Number 248 (Wednesday, December 28, 1994)] [Unknown Section] [Page ] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-31511] [Federal Register: December 28, 1994] ======================================================================= ----------------------------------------------------------------------- INTERNATIONAL TRADE COMMISSION 19 CFR Parts 201 and 207 Rules of General Application; Investigations of Whether Injury to Domestic Industries Results From Imports Sold at Less Than Fair Value or From Subsidized Exports to the United States AGENCY: U.S. International Trade Commission. ACTION: Notice of final rulemaking. ----------------------------------------------------------------------- SUMMARY: The Commission is amending the rules to address concerns which have arisen relating to Commission practice. The amendments provide, in particular, for changes relating to sanctions and other actions in response to administrative protective order (APO) breaches, the procedures for conducting APO breach investigations, the filing of prehearing briefs, closed sessions of Commission hearings in title VII and other investigations, and the procedures for considering requests for exemption from disclosure under APO of business proprietary information in title VII investigations. EFFECTIVE DATE: January 27, 1995. FOR FURTHER INFORMATION CONTACT: Paul R. Bardos, Esq., Office of the General Counsel, U.S. International Trade Commission, telephone 202-205-3102. Hearing-impaired persons are advised that information on the matter can be obtained by contacting the Commission's TDD terminal on 202-225-1810. SUPPLEMENTARY INFORMATION: Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures and rules and regulations as it deems necessary to carry out its functions and duties. Commission rules ordinarily are promulgated in accordance with the rulemaking provisions of section 553 of the Administrative Procedure Act (5 U.S.C. 551 et seq.) (APA), which entails the following steps: (1) publication of a notice of proposed rulemaking; (2) solicitation of public comment on the proposed rules; (3) Commission review of such comments prior to developing final rules; and (4) publication of the final rules thirty days prior to their effective date. See 5 U.S.C. 553. Notice of proposed rulemaking was published in the Federal Register of April 15, 1993 (58 Fed. Reg. 19,638) and interested persons were given until May 17, 1993, to submit comments. Comments were received from the Customs and International Trade Bar Association (CITBA); Adduci, Mastriani, Schaumberg & Schill (AMS&S); Grunfeld, Desiderio, Lebowitz & Silverman (GDL&B); Stewart & Stewart (S&S); and Columbia Impex Corp. On April 21, 1994, the Commission published an advance notice of proposed rulemaking (59 FR 18982) concerning Parts 201 and 207. The rulemaking proceeding of which the present notice is a part is distinct from that effort. The Commission has determined that these rules amendments do not meet the criteria described in section 3(f) of Executive Order 12866, Sep. 30, 1993 (58 F.R. 51735 (Oct. 4, 1993)) and do not constitute a significant regulatory action for the purposes of the EO. Moreover, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601 note), the Commission hereby certifies pursuant to 5 U.S.C. 605(b) that the amendments set forth in this notice are not likely to have a significant economic impact on a substantial number of small business entities. This is because the rules amendments constitute merely clarifications and streamlining of the procedures of the Commission. Explanation of the Amendments to 19 CFR Parts 201 and 207 Section 201.13 and 207.23 Sections 201.13 and 207.23 are amended as described in the notice of proposed rulemaking to modify the procedure for closing to the public a portion of Commission hearings to permit the discussion of confidential or proprietary information. CITBA commented that it understood that the closed sessions are also intended to apply to the conduct of staff conferences, since section 207.15, governing those conferences, incorporates by reference the procedures in section 201.13. CITBA suggested that the Commission consider shortening the period for requesting a closed session in a preliminary conference, in view of the short time period in preliminary title VII investigations. CITBA suggested that three days would be appropriate. CITBA also suggested that, as a cosmetic change to improve clarity, the Commission should make the provisions governing closed sessions of hearings separate subsections, rather than including them within subsection (a) of rules 201.13 and 207.23. S&S expressed general support for the closed session amendment, but stated a concern that increasingly large closed portions would make hearings less understandable to clients and reduce their opportunity to respond. The Commission agrees with CITBA that the provisions for closing hearing should be applied to conferences in preliminary title VII investigations, with a shorter time period as suggested by CITBA. The final version of rule 201.13 incorporates that change. The Commission has also adopted CITBA's proposed cosmetic change. The final version of the rules establishes separate subsections of rules 201.13 and 207.23 providing for closed sessions. Section 207.7(a)(3)(ii) Rule 207.7(a)(3)(ii) is amended to clarify the definition of ``competitive decisionmaking.'' CITBA and AMS&S recommended including examples or additional guidelines on the factual circumstances constituting ``competitive decision making.'' AMS&S also suggested that the Commission clarify whether ``involvement'' includes past, present, or future continuing relationships. The Commission has adopted the suggestion of AMS&S. The Commission finds it inappropriate to put examples or guidelines in the rules, in order to avoid limiting the Commission's flexibility in assessing specific factual situations to determine whether access to BPI by in-house counsel is appropriate. However, the Commission is willing to give parties additional guidance on this issue by providing the following examples in this preamble. In A Hirsh, Inc. v. United States, 11 CIT 208, 657 F. Supp. 1297 (1987), during judicial review of a Commission title VII determination, the U.S. Court of International Trade (CIT) denied the request of an in-house counsel for access to the BPI in the Commission's investigation record. During the Commission's investigation, this individual, the petitioner's general counsel and chief legal officer, had not had access to BPI, and the petitioner had been represented by outside counsel. The CIT concluded that the interest in guaranteeing a high degree of confidentiality in the information outweighed the individual's need for access, particularly since petitioner was represented by outside counsel. The court noted, among other circumstances, that petitioner was a family-owned and -operated company, and that the individual himself had been empowered to act as president in the absence or disability of the company president, his father. The court also noted that the individual was an officer of the company, and had familial ties with the company's operating officers, who included his father and brother, suggesting a lack of isolation from the commercial activities of the company. Although the case did not directly involve a Commission decision on whether to grant access to BPI to in-house counsel, it illustrates the sort of factors that might prompt denial of access to BPI. With respect to a Commission determination on the status of in- house counsel in a title VII investigation, the U.S. Court of Appeals for the Federal Circuit affirmed the Commission's decision to grant access to BPI to an in-house counsel. The Commission had granted access based on the individual's certification that, in his position as general counsel for the respondent company, he was not involved in competitive decision-making. The individual had provided the Commission with a description of his duties as general counsel, senior vice president, and secretary. Those duties included supervising the company's legal staff, instituting and defending lawsuits on behalf of the company, preparing contracts, and handling securities and labor matters. He stated that he was not involved in decisions of pricing and the technical design of products. In a further submission to the Commission, he stated that he reviewed securities filings, employee benefit plans and stock purchase plans, kept the minutes of the Board of Directors, attended staff meetings where the results of the company's operations and financial reports were reviewed, attended meetings where the current state of affairs of retail outlets was examined, but that at none of these meetings were issues of pricing or product design discussed. Petitioners in the investigation sought an injunction against the grant of access. The CIT granted an injunction denying the individual access, finding that his responsibilities constituted involvement in competitive decisionmaking, but the Federal Circuit reversed. Matsushita Electric Industrial Co., Ltd. v. United States, 14 CIT 674, 746 F. Supp. 1103, 1106 (1990), rev'd,, 929 F.2d 1577 (1990). Section 207.7(b)(10) and (d) Paragraphs (b)(10) and (d) of section 207.7 are amended to specify that the Commission may take actions other than sanctions in response to APO breaches. AMS&S recommended that the Commission provide examples of ``other actions'' that would fall within the scope of the provision. The final version of the rule specifies that a ``warning letter'' is one of the possible actions the Commission may take. The rule also makes clear, however, that the one example is not exclusive. The Commission may take other actions as it determines to be appropriate even if they are not listed in the rule. Paragraph (d) of section 207.7 is further amended to reflect Commission practice by specifying that available sanctions include public and private letters of reprimand. Section 207.7(e) Section 207.7(e) is amended to establish a deadline for commencing APO breach investigations. Further, it had been proposed to amend section 207.7(e) to streamline the process of investigating alleged breaches of APOs by replacing with a one-step procedure the existing two-step process, whereby an alleged breacher is first asked for views on whether a breach occurred and is only asked for views on mitigating circumstances and the appropriate sanction after a finding of breach has been made. CITBA expressed concern at the proposed single-step procedure. CITBA commented that the proposed procedure may, in some cases, significantly diminish a party's right to have a reasonable opportunity to present its arguments on the three issues of whether a breach occurred, whether mitigating circumstances exist, and what sanction if any is appropriate. CITBA suggested that where there are serious factual questions concerning whether the alleged breach actually occurred, a party may not be in a position to present the strongest possible case on mitigation and sanctions in the same response that addresses the alleged breach. Moreover, CITBA commented that where it can be established that the breach did not occur, it would be an unnecessary burden to require submission of comments on mitigation and sanctions. CITBA proposed that the single-step procedure should be available as an alternative, at the option of the accused party, to the existing procedure. CITBA also proposed that the Commission establish time limits for the phases of a breach investigation, paralleling existing Commerce procedures. CITBA commented that the two year period (following all appeals, remands, and subsequent appeals) allowed for commencement of a breach investigation may be too long in some cases, prejudicing a party's ability to mitigate harm and defend him- or herself. On the other hand, CITBA suggested that two years may be insufficient in cases of intentional breach, where discovery of the breach is difficult. CITBA suggested that the Commission should adopt time limits similar to those employed by Commerce, limiting the period for commencing a breach investigation to 30 days after the alleged violation occurred, or could have been discovered through the exercise of reasonable and ordinary care, as determined by the Commission. CITBA also suggested that the Commission adopt a time limit for issuance of a charging letter, as Commerce has done. Finally, CITBA proposed that it would be useful for the Commission to identify deadlines for the various stages of a breach investigation. CITBA suggested Commerce's procedures as examples for consideration. AMS&S expressed concern with the two year time limit, noting that appeals of Commission determinations can take several years to reach a final conclusion, during which time a party's memory of actions involving an alleged breach dims, making defense against a charge of alleged breach of an APO an onerous burden. AMS&S noted that the Commission's rules require return or destruction of material released under APO within 60 days of publication of a final determination, unless judicial review is commenced. If the determination is appealed, a judicial protective order (JPO) is usually entered, which may contain different provisions from the Commission's APO. AMS&S suggested that actions allowed under the JPO may be alleged to violate the APO. AMS&S noted that it may be argued that once a JPO issues, the Commission no longer has jurisdiction over the parties to consider and sanction breaches of the APO occurring during the appellate process. AMS&S also expressed concern over the one-step procedure investigation proposed in the rules. AMS&S suggested that this procedure could deny a party a reasonable opportunity to present views about whether the alleged breach actually occurred, requiring submission of potentially contradictory arguments concerning whether the breach occurred, mitigating circumstances, and appropriate sanctions, prior to a determination that there was a breach. AMS&S suggested that a two-step procedure addressing the questions of breach and sanctions separately would be preferable. S&S expressed concern over the proposed two year time limit for investigating breaches. S&S commented that such a long period is prejudicial to the accused party's ability to defend him- or herself, creates uncertainty, and is unnecessary to protect the confidentiality of information. S&S suggested that the Commission conform its practice to Commerce practice, as discussed above under CITBA's comments. Moreover, S&S took issue with the one-step inquiry, opining that the new procedure would jeopardize the accused person's defense, and proposed that the new procedure be made available as an option that the accused could choose. S&S also noted that the proposed language suggests that the Commission may investigate breaches occurring during the pendency of judicial review. S&S assumed this was unintentional, noting that JPOs generally cover BPI during the appellate process. S&S suggested that the Commission may wish to clarify that it does not view its authority as extending to sanctioning breaches of JPOs, or allow a period for comment on this issue. CITBA and S&S both suggested that the Commission address in a future notice and request for comments the agency's APO practice in general. In view of the comments received on the point, the Commission has determined not to institute the one-step process set out in the proposed rules. However, as it has in the past and as reflected in the amended version of the rule, the Commission may conclude a proceeding in one step if it finds that a breach has occurred but that under the circumstances no further investigation is warranted. The Commission is sympathetic to the concerns expressed by the commenters concerning the time limit for commencing investigations of alleged APO breaches. Accordingly, that deadline is shortened from the time limit set in the proposed rules. A breach investigation is to be commenced no later than sixty days after the later of the occurrence of the alleged breach (or the date on which the alleged breach could have been discovered through the exercise of reasonable and ordinary care) or the end of the underlying antidumping or countervailing duty investigation. If a breach is alleged to occur during a preliminary or final investigation, the time limit is sixty days after the end of that investigation. If a breach is alleged to occur after such an investigation, for example during remand proceedings, an investigation into the alleged breach would need to be commenced sixty days after the alleged breach occurred or could have been discovered. The deadline is intended to provide the Commission sufficient time to commence an investigation into an alleged breached while minimizing any harm to the defense a person might mount in a breach inquiry begun so long after the event that memories have dimmed. The time limit allows for the completion of the underlying investigation so that the Commission need not conduct both that investigation and a breach investigation at the same time, and allows an additional sixty days for the Commission to resolve any matters preliminary to the breach investigation, such as the issue of whether the information in question is business proprietary. The Commission finds that it would be neither appropriate nor necessary to establish time limits on the various phases of a breach investigation by rule. Specific time limits in the rules could restrict the Commission's ability to seek additional information concerning an alleged breach if deemed necessary. Moreover, the press of other Commission business may hamper compliance with such time limits, necessitating Commission action to extend the deadlines. However, it remains the Commission's intention to expeditiously process APO violation investigations. The Commission also finds that it would be inappropriate to state that in all instances the Commission will not investigate an alleged APO breach after a JPO has been entered. In some circumstances, the Commission may need to take action even though a JPO is in place. Section 207.7 (f) and (g) Paragraphs (f)(2) and (g) of section 207.7 are amended to improve the procedure for requesting exemption from disclosure of business proprietary information under APO. CITBA generally agreed with the proposed procedures for exemption from disclosure under APO. CITBA expressed concern, however, that the proposed rule does not adequately explain how the procedure for seeking exemption from disclosure coordinates with time limits for filing briefs. CITBA proposed that the rule expressly require that exemption be sought sufficiently in advance that the request may be acted upon in time for the party to prepare and file its brief in a timely manner. CITBA also noted that the rule does not clarify how much time the Secretary may need to act on the request, merely that she will ``promptly notify'' the requestor of the disposition of the request. As a cosmetic change, CITBA also proposed an alternative arrangement of section 207.7(g), with specific subsections dealing sequentially with the procedure. AMS&S and S&S supported the Commission's proposed procedure for requesting exemption from disclosure under APO and service. The Commission is sympathetic to CITBA's desire for clearer guidelines on timing of requests for exemption prior to filing and the Secretary's response time, but considers that a ``pre-clearance'' procedure would be unworkable in view of the already short time limits for filing most party submissions in title VII investigations. To shorten them even further by, in effect, requiring parties to file early in order to obtain exemption from disclosure under APO would in the Commission's view work a substantial hardship on the parties and limit their ability to fully present their arguments. A provision is being added to the final rules indicating that requests for exemption from disclosure under APO should be filed two business days prior to the deadline for filing the document in which the information is proposed to be included, although no strict requirement to that effect is imposed. The Commission is not imposing a strict time limit for the Secretary's decision on granting the request, but it is the Commission's policy that such requests take precedence over other, more routine matters, and should be expedited so as to be decided within two business days. The final version of section 207.7(g) largely reflects CITBA's suggested cosmetic changes. Paragraph (f)(1) is amended to make a technical correction to remove a discrepancy between section 207.7 and 207.3, and indicates no change in Commission practice. Section 207.22 Section 207.22 is amended to require the filing of prehearing briefs four business days prior to the hearing. CITBA suggested that the clause ``The prehearing brief should present a party's case in brief'' sounds tautological, and that the word ``concisely'' replace the phrase ``in brief.'' The Commission has made that change in the final version of the rules. The Commission has also determined to require the filing of prehearing briefs only of interested parties who are parties to the investigation, i.e., those parties with standing to challenge Commission determinations in court. Other persons may but are not required to file prehearing statements. Section 207.23(b) Section 207.23(b) was proposed to be amended to require the filing of witness statements two business days prior to the hearing. GDL&S expressed concern with the proposed change requiring, rather than permitting, filing of witness statements. GDL&S commented that, given the logistics of travel, and the need to prepare witness statements face to face, rather than by long-distance communication, this requirement will impose substantial hardships on foreign witnesses, particularly from the Far East. GDL&S suggested that the requirement will dissuade witnesses from testifying, will make participation much more costly, and will tend to diminish, rather than enhance, the quality of evidence presented. GDL&S urged the Commission to reconsider this proposed change. The Commission has determined to leave the existing rule on witness statements unchanged. List of Subjects in 19 CFR Parts 201 and 207 Administrative practice and procedure, investigations, imports. 19 CFR Parts 201 and 207 are amended as follows: PART 201--[AMENDED] 1. The authority citation for part 201 continues to read as follows: Authority: Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335), and sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless otherwise noted. 2. Paragraph (m) of section 201.13 is added to read as follows: Sec. 201.13 Conduct of nonadjudicative hearings. * * * * * (m) Closed sessions. Upon a request filed by a party to the investigation no later than seven (7) days prior to the date of the hearing (or three (3) days prior to the date of a conference conducted under Sec. 207.15 of this chapter) that identifies the subjects to be discussed, specifies the amount of time requested, and justifies the need for a closed session with respect to each subject to be discussed, the Commission (or the Director, as defined in Sec. 207.2(c) of this chapter, for a conference under Sec. 207.15 of this chapter) may close a portion of a hearing (or conference under section 207.15 of this chapter) held in any investigation in order to allow such party to address confidential business information, as defined in Sec. 201.6, during the course of its presentation. In addition, during each hearing held in an investigation conducted under section 202 of the Trade Act , as amended, or in an investigation under title VII of the Tariff Act as provided in Sec. 207.23 of this chapter, following the public presentation of the petitioner(s) and that of each panel of respondents, the Commission will, if it deems it appropriate, close the hearing in order to allow Commissioners to question parties and/or their representatives concerning matters involving confidential business information. PART 207--[AMENDED] 3. The authority citation for part 207 continues to read as follows: Authority: 19 U.S.C. 1303, 1335, 1671-1677k, and 2482, unless otherwise noted. 4. Paragraphs (a)(3)(ii), (b)(10), (d), the heading for paragraph (e), (e)(1), (f)(1), (f)(2), and (g) of Sec. 207.7 are revised to read as follows: Sec. 207.7 Limited disclosure of certain business proprietary information under administrative protection order. * * * * * (a) * * * (3) Authorized applicant. * * * * * (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 advise or participation in any of such party's decisions made in light of similar or corresponding information about a competitor (pricing, product design, etc.). * * * * * (b) Administrative protection order. * * * * * (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. * * * * * (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 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. * * * * * (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) A party may seek an exemption from the service requirement of paragraph (f)(1) of this section for particular business proprietary information by filing a request for exemption from disclosure in accordance with paragraph (g) of this section. The Secretary shall promptly respond to the request. If a request is granted, the Secretary shall accept the information into the record. The party shall file three versions of the submission containing the information in accordance with paragraph (g) of this section, and serve the submission in accordance with the requirements of Sec. 207.3(b) and paragraph (f)(1) of this section, with the specific information as to which exemption from disclosure under administrative protective order has been granted redacted from the copies served. If a request is denied, the copy of the information lodged with the Secretary shall promptly be returned to the requester. * * * * * (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 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 privileged information, classified information, or specific information of a type for which there is a clear and compelling need to withhold from disclosure. (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. 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 business proprietary information in question. One version shall contain all business proprietary information, bracketed in accordance with Sec. 207.3(c), with the specific information as to which exemption from disclosure was granted enclosed in double brackets. This version shall have the following warning marked on every page: ``BPI exempted from disclosure under APO enclosed in double brackets.'' The other two versions shall conform to and be filed in accordance with the requirements of Sec. 207.3, except that the specific information as to which exemption from disclosure was granted shall be redacted from those versions of 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. 5. Section 207.22 is revised to read as follows: Sec. 207.22 Prehearing brief. Each party who is an interested party shall submit to the Commission, no later than four (4) business days prior to the date of the hearings specified in the notice of investigation, a prehearing brief. Prehearing briefs shall be signed and shall include a table of contents. The prehearing brief should present a party's case concisely and shall, to the extent possible, refer to the record and include information and arguments which the party believes relevant to the subject matter of the Commission's determination under section 303, 705(b) or 735(b) of the Act. Any person not an interested party may submit a brief written statement of information pertinent to the investigation within the time specified for filing of prehearing briefs. 6. In Sec. 207.23, paragraphs (a) and (b) are revised and paragraph (d) is added to read as follows: Sec. 207.23 Hearing. (a) In general. The Commission shall hold a hearing concerning an investigation before making a final determination under section 303, 705(b) of 735(b) of the Act. (b) Procedures. Any hearing shall be conducted after notice published in the Federal Register. The hearing shall not be subject to the provisions of 5 U.S.C. chapter 5, subchapter II, or to section 702 of that title. Each party shall limit its presentation at the hearing to a summary of the information and arguments contained in its prehearing brief, an analysis of the information and arguments contained in the prehearing briefs described in Sec. 207.22, and information not available at the time its prehearing brief was filed. Unless a portion of the hearing is closed, presentations at the hearing shall not include business proprietary information. Notwithstanding Sec. 201.13(f) of this chapter, in connection with its presentation a party may file witness testimony with the Secretary no later than three (3) business days before the hearing. In the case of testimony to be presented at a closed session held in response to a request under Sec. 207.23(a), confidential and non-confidential versions shall be filed in accordance with Sec. 207.3. Any person not a party may make a brief oral statement of information pertinent to the investigation. * * * * * (d) Closed sessions. Upon a request filed by a party to the investigation no later than seven (7) days prior to the date of the hearing that identifies the subjects to be discussed, specifies the amount of time requested, and justifies the need for a closed session with respect to each subject to be discussed, the Commission may close a portion of a hearing to persons not authorized under Sec. 207.7 to have access to business proprietary information in order to allow such party to address business proprietary information during the course of its presentation. In addition, during each hearing held in an investigation conducted under section 303, 705(b) or 735(b) of the Act, following the public presentation of the petitioner(s) and that of each panel of respondents, the Commission will, if it deems it appropriate, close the hearing to persons not authorized under Sec. 207.7 to have access to business proprietary information in order to allow Commissioners to question parties and/or their representatives concerning matters involving business proprietary information. By order of the Commission. Issued: December 19, 1994. Donna R. Koehnke, Secretary. [FR Doc. 94-31511 Filed 12-27-94; 8:45 am] BILLING CODE 7020-02-M