Regulation Strengthening Accountability of Attorneys and Non-Attorney Representatives Appearing Before the Department, 22773-22777 [2013-09041]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 78, Number 74 (Wednesday, April 17, 2013)]
[Rules and Regulations]
[Pages 22773-22777]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-09041]


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DEPARTMENT OF COMMERCE

International Trade Administration

19 CFR Part 351

RIN 0625-AA92
[Docket No.: 120613168-2175-02]


Regulation Strengthening Accountability of Attorneys and Non-
Attorney Representatives Appearing Before the Department

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Final rule.

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SUMMARY: The Department of Commerce (the Department) is amending its 
regulations to add a subsection that strengthens the accountability of 
attorneys and non-attorney

[[Page 22774]]

representatives who appear in proceedings before the Import 
Administration (IA). The rule provides that both attorneys and non-
attorney representatives will be subject to disciplinary action for 
misconduct based upon good cause. The 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.

DATES: Effective Date: May 17, 2013. Applicability Date: This rule will 
apply to all submissions made on or after the effective date.

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: 

Background

    On June 26, 2012, the Department published a proposed rule entitled 
``Regulation Strengthening Accountability of Attorneys and Non-Attorney 
Representatives Appearing Before the Department'' that would amend its 
regulations to add a subsection to strengthen the accountability of 
attorneys and non-attorney representatives who appear in proceedings 
before IA. (77 FR 38017). The proposed rule detailed amendments to the 
Department's regulations that provide, when good cause is found, that 
both attorneys and non-attorney representatives will be subject to 
disciplinary action for misconduct.
    The Department received a number of comments on its proposed rule, 
which can be accessed using the Federal eRulemaking portal at https://www.regulations.gov under Docket Number ITA-2012-003.
    After analyzing and considering all of the comments that the 
Department received in response to the proposed rule, the Department is 
adopting the rule without changes and is amending its regulations to 
add a new subsection.

Explanation of Changes to 19 CFR Part 351

    To implement this rule, the Department is amending 19 CFR part 351 
to add to subpart C Sec.  351.313.

Response to Comments on the Proposed Rule

    Below is a summary of the comments, grouped by issue category, 
followed by the Department's response.

Comment 1--Necessity for Proposed Rule

    Most commenters support the Department's goal of strengthening the 
accountability of attorneys and non-attorney representatives who engage 
in misconduct during agency proceedings. One commenter observed that 
the proposed rule ``reasonably makes clear the Department's intentions 
and practice so that attorneys and other representatives will be on 
notice of the consequences of any misconduct.'' Another commenter 
stated that the Department's efforts in promulgating the proposed rule 
are laudable and are ``crucial to upholding the rule of law and 
integrity'' of the Department's administrative proceedings. Other 
commenters summarized examples of misconduct that have occurred before 
the Department, noting that such incidents have been increasing in 
recent years. Some commenters, however, question the purpose of the 
proposed rule. One commenter, for example, expressed concern that, 
however well-intentioned the proposed rule is, it subjects 
practitioners to potentially punitive sanctions ``at the whim of 
government officials'' without clear guidelines or safeguards. While 
acknowledging the need for the Department to regulate non-attorney 
representatives, another commenter suggested that there is no separate 
need for the Department to discipline attorneys because appropriate Bar 
counsel and associations are responsible for such discipline.
    Response: As discussed previously in the Notice of Proposed 
Rulemaking (77 FR 38017), the Department believes that promulgation of 
this rule will assist the Department in its efforts to continue to 
maintain the integrity of its proceedings by deterring misconduct by 
attorneys and non-attorney representatives appearing before it in 
antidumping and countervailing duty proceedings. Set forth below are 
our responses with respect to specific issues.

Comment 2--Practitioners May Have To Demonstrate Acceptability To 
Practice

    Certain commenters are concerned with the ``acceptability'' 
language contained in the proposed rule and have asserted that the term 
is impermissibly vague. One has suggested that the Department create a 
standard of acceptability where ``technical competence and ethical 
integrity'' must be satisfied. According to this commenter, attorneys 
would automatically satisfy the standard while non-attorney 
representatives should be required to adhere to a code of conduct and, 
for technical competence, to meet standards modeled after other 
agencies such as the Bureau of Alcohol, Tobacco, Firearms and 
Explosives (ATF). The commenter states that the ATF requires 
practitioners to satisfy minimum standards such as 5 years of 
employment with the agency or 5 years of employment in the regulated 
industry, or prior experience representing parties before the Internal 
Revenue Service or ATF.
    Response: The ``acceptability'' language in the rule mirrors 
language that appears in the International Trade Commission (ITC's) 
regulation governing the appearance of attorneys and agents before the 
Commission (19 CFR 201.15): ``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.'' The 
Department is not aware that this requirement has caused the ITC any 
difficulty in administering its regulation. Without having applied the 
rule, the Department is not in a position to identify every conceivable 
instance in which this provision may need to be invoked, but the 
Department does not agree that it is impermissibly vague. We note that 
an attorney, who is eligible to practice pursuant to the rules of the 
bar of the highest court of any State, possession, territory, or 
Commonwealth of the United States, or of the District of Columbia, who 
is not currently under suspension or disbarment, may practice as an 
attorney before the Department. The possibility exists that a person 
who is not an attorney in good standing as set forth above might 
identify himself or herself as an attorney or ``legal representative'' 
in an administrative proceeding. If that happens, the Department may 
find that the mischaracterization of that person's status renders that 
person not acceptable in the capacity presented.
    Additionally, suspension or disbarment of an attorney or non-
attorney representative by another agency or disciplinary tribunal 
might render such a person ineligible to appear before the Department. 
As discussed further below, this would be especially true if the 
suspension or disbarment were based upon fraud, misrepresentation, 
bribery or perjury. The Department agrees with the commenter who noted 
that attorneys

[[Page 22775]]

and non-attorney representatives should have sufficient knowledge of 
and competence in the subject area and should comply with the highest 
professional and ethical standards. However, unlike the ATF, the 
Department does not administer a regulated industry and is not 
instituting any technical ``tests'' that practitioners must satisfy 
except for the obvious standard that attorneys practicing before the 
Department must be in good standing before a U.S. Bar as noted above.

Comment 3--Good Cause Standard for the Application of Sanctions for 
Misconduct

    Certain commenters assert that the ``good cause'' standard 
contained in the proposed rule is vague and undefined, and that this 
lack of definition could create uncertainty for practitioners. Another 
commenter recommends that the Department review allegations of 
misconduct prior to beginning a proceeding to ensure that a plausible 
basis exists for imposing sanctions.
    Response: The Department does not agree that a ``good cause'' 
standard is too vague. Many administrative agencies, including the 
Department, are frequently required to exercise discretion based upon a 
standard of ``good cause.'' Indeed, this standard already appears in 
the Department's regulations in several other contexts, so the agency 
and practitioners are familiar with it and the agency has significant 
experience applying such a standard. See 19 CFR 351.216(c), 
351.218(d)(3)(iv), 351.218(e)(1)(iii), 351.302(b), 351.307(b)(1)(iv). 
Allegations of misconduct by an attorney or non-attorney representative 
in an administrative proceeding will be reviewed to ensure that there 
are adequate or substantial grounds supporting the allegation and the 
affected party will have an opportunity to present his or her views 
before any sanction is imposed.

Comment 4--What Is ``Improper Conduct''

    Commenters have suggested that the Department further define 
``improper conduct'' so that practitioners understand what conduct is 
and is not acceptable. Included within one comment was an inquiry 
concerning the possible effect of suspension or disbarment by another 
agency.
    Response: Because of the breadth and variety of proceedings 
involving practitioners before the Department, we are not able to 
define every possible act that may be encompassed by the term 
``improper conduct.'' Indeed, there may be some types of ``improper 
conduct'' in the future that we simply cannot contemplate at this time. 
Further, the Department is concerned that any attempt to specifically 
define ``improper conduct'' would be deemed by certain practitioners to 
be an exhaustive list. It is the Department's intent to maintain the 
integrity of its proceedings and the agency will proceed to review any 
allegations of misconduct that may arise on a case-by-case basis. The 
Department can identify, however, certain conduct by attorneys and non-
attorney representatives that directly affects the integrity of its 
proceedings and that would be considered improper. Clearly improper 
conduct includes, but is not limited to, knowingly providing incorrect 
information to the agency; knowingly making misrepresentations of fact 
or law; knowingly making false accusations in a proceeding; failing to 
engage in reasonable diligence including failure to exercise such 
diligence in the preparation and/or review of submissions; and 
assisting an attorney or non-attorney representative who has been 
suspended or disbarred from practicing before the Department during 
such disbarment or suspension to work on matters pending before the 
agency.
    The Department will have to examine on a case-by-case basis the 
circumstances surrounding an attorney's or non-attorney 
representative's suspension or disbarment by another federal agency. 
Certain circumstances surrounding a suspension or disbarment may call 
into question an attorney's or representative's ability to practice 
before the Department, such as if the practitioner were suspended or 
disbarred for perpetrating a fraud, misrepresentation, perjury, or 
bribery upon another agency.
    This rule is not intended to cover ethical conflicts uniquely 
within the province of local Bar authorities. For instance, the 
Department will not consider claims that a prior attorney refuses to 
provide a client's file to the current attorney or that a former law 
firm lawyer is representing a new client whose interest conflicts with 
the attorney's former clients. Additionally, parties should not file 
requests covering such matters with the Department believing that the 
Department will notify appropriate Bar counsel of the possible ethical 
conflict. The Department will not entertain such requests and will not 
refer such conflicts to Bar counsel. Instead, to the extent a law firm 
or individual attorney believes that an ethical breach is occurring or 
has occurred, they should follow the appropriate professional 
responsibility guidelines and ethical canons.

Comment 5--Procedural Safeguards

    Certain commenters express concern about what they deem to be a 
lack of procedural safeguards protecting attorneys and non-attorney 
representatives. Specifically, the commenters assert that the agency 
should provide more than just a mere opportunity to present views, and 
that affected parties should have the right to review and respond to 
evidence forming the basis of any potential disciplinary action. Other 
commenters suggest that agency personnel involved in a prospective 
disciplinary proceeding should be independent from the personnel 
conducting the underlying administrative proceeding, similar to the 
agency's Administrative Protective Order (APO) practice. One commenter 
has suggested that the Department designate a contact person or office 
to handle misconduct inquiries. Another commenter asserts that the 
Department is required to establish procedures to protect client 
confidences in the defense of a prospective disciplinary action and to 
permit reference to APO information in defense of an action. Another 
commenter appreciated the Department's intention to provide 
practitioners with the opportunity to provide their views to the agency 
before the imposition of sanctions indicating that adequate due process 
must be provided.
    Response: Before issuing this rule, the Department considered the 
process to be followed in the event that an allegation of misconduct is 
received or if the agency is otherwise aware of the misconduct. The 
Department believes that the existence of the regulation will serve to 
remind practitioners of their responsibilities such that the regulation 
may not be heavily used. The agency intends to develop specific 
procedures for handling misconduct allegations as it proceeds and 
expects to refine such procedures as it gains experience with 
misconduct claims. Although the Department may use the agency's APO 
regulations as guidance, the Department does not presently envision 
adopting the lengthy process contained in those regulations. For now, 
it is sufficient that the affected party will be afforded the 
opportunity to provide his or her views to the agency. The Department 
believes that this will permit potentially affected parties an 
opportunity to review and respond to the allegations and the evidence. 
It is not the Department's intention to require attorneys to breach 
client confidences. However, attorneys and non-attorney representatives 
are

[[Page 22776]]

reminded that a successful practice before the Department requires due 
diligence. With respect to misconduct involving information covered by 
an APO, the agency will have to address such a situation if it arises 
under this rule. The Department agrees with the suggestion that the 
personnel involved in administering the underlying administrative 
proceeding should not be involved in a misconduct investigation once an 
allegation is made or in determining the proper sanction for the 
misconduct. The Department has not yet determined whether a specific 
person or office will be responsible for reviewing misconduct inquiries 
but will continue to consider the matter as it gains experience 
administering this new regulation. For now, parties may direct such 
allegations to the Deputy Assistant Secretary for Import Administration 
at the filing address set forth in 19 CFR 351.303(b) of our 
regulations.

Comment 6--Public Register of Sanctioned Attorneys and Representatives

    Several commenters take issue with the Department's stated 
intention of maintaining a public register of attorneys and 
representatives who may be suspended or barred from practice before the 
agency. Some suggest that the Department simply publish the offenders' 
names in the Federal Register along with the periods for such 
suspension or disbarment thereby obviating the need to maintain a 
separate registry. Others believe that a public registry is not 
warranted noting that the ITC's comparable rule has no such provision 
and that consistency between the two regulations would be beneficial to 
all parties. One commenter asserts that the maintenance of an internal, 
non-public list should be sufficient to prevent such persons from 
practicing while another is concerned that the registry might contain 
names of attorneys, who through an inadvertent bracketing error, have 
violated the Department's APO procedures and that such public release 
would be overly harsh. Others state that, because the proposed 
regulation, like the ITC's regulation, contemplates the issuance of 
public reprimands, where appropriate, there is no need for a public 
registry. One of those commenters also expressed concern that in 
today's internet age, publicizing violators' names will survive long 
after the temporary nature of any suspension.
    Another commenter suggests that the Department delete any reference 
to a private reprimand arguing that the rule will be less effective if 
the public and trade community are not aware of reprimands and that the 
possibility of private reprimands affects the transparency of the 
proposed rule.
    Response: The public nature of the registry is intended to serve as 
a deterrent to prevent attorneys and non-attorney representatives from 
engaging in improper conduct with respect to their practice before the 
agency. Whether the deterrent is created by notification in the Federal 
Register or through maintenance of a public registry is largely a 
distinction without a difference. The Department recognizes in this 
rule that there may be situations that do not necessitate sanctions or 
disbarment from practicing before the agency--both of which would 
result in public disclosure--and that a private reprimand would be 
appropriate in the circumstances.
    This rule is not intended to interfere or overlap with the APO 
regulations located at 19 CFR 354.1 which have been in place for many 
years. Consequently, Departmental action taken pursuant to this rule is 
not intended to encompass behavior regulated by the APO regulations. If 
misconduct is alleged involving information covered by an APO, the 
Department will address the situation at that time. Inadvertent APO 
bracketing alone should not result in an attorney's or non-attorney 
representative's name being placed on the public registry maintained 
for violations of this rule (although, the APO regulations do not 
mandate that sanctions be private).
    With respect to comments that publication is ``draconian'' or will 
survive long-past the actual suspension in the internet age, we note 
that at a minimum, attorneys are aware that publicizing names of those 
found to have violated their professional responsibilities is 
undertaken routinely by local disciplinary tribunals. For example, the 
D.C. Office of Bar Counsel and Board on Professional Responsibility 
publish the names of reprimanded, suspended and disbarred attorneys on 
a monthly basis in the Washington Lawyer: The Official Journal of the 
District of Columbia Bar, along with a description of the violation. 
Disciplinary information is also available on the District of Columbia 
Bar Web site www.dcbar.org. Publicizing names of those who violate this 
rule is thus consistent with the practice of other disciplinary 
tribunals.

Comment 7--Effect on Those Working With Sanctioned Attorney or Non-
attorney Representative

    The Department received comments indicating that the proposed rule 
does not address the effect that sanctioning an individual working in a 
firm or with co-counsel might have upon the firm or co-counsel. The 
same commenter also expressed concern that the proposed rule does not 
address whether a ``lead attorney'' will be held responsible for 
another person's misconduct.
    Response: Depending upon the nature of the misconduct allegation, 
the Department may be required to investigate more than one 
practitioner at a firm and will consider all allegations on a case-by-
case basis. Practitioners whose names appear on submissions before the 
agency, including certifications filed pursuant to 19 CFR 351.303, are 
subject to disciplinary action pursuant to the rule. It is not the 
Department's intent at this time to hold one practitioner responsible 
for the conduct of others; however, if a submission contains multiple 
names, all named practitioners may be responsible for any misconduct 
associated with the submission. Consequently, if the Department 
determines that a submission contains misrepresentations and, for 
example, three practitioners are listed on the submission, then 
depending upon the results of the Department's investigation, it may be 
appropriate for all three practitioners to be sanctioned. In general, 
the Department does not intend to sanction entire firms when a 
particular representative is determined to have engaged in misconduct, 
unless the facts and evidence support such a sanction. The Department 
does, however, expect that firms will ensure that any sanctioned 
individuals abide by the terms of any sanction and will not permit such 
individuals to work on Department matters during the pendency of any 
sanction. In fact, such action could itself be deemed to be improper 
conduct and subject the firm to sanctions.

Comment 8--Who May Appear Before the Department

    Commenters have variously suggested that the Department require 
licenses to appear before it, that non-attorney representatives may not 
appear before the agency and that permitting them to do so violates 
D.C. Bar rules, that the Department should only permit entities to be 
represented by ``approved'' representatives subject to discipline, and 
that foreign-based non-attorneys should not be permitted to appear 
before the agency. Certain commenters have also suggested that the 
Department preclude non-attorney representatives from raising legal 
issues.
    Response: The Department's regulations for many years have 
permitted attorneys and non-attorney

[[Page 22777]]

representatives to appear before the agency in representative 
capacities and have regulated their appearance without requiring an 
application or a license to do so and without restricting the issues 
covered by either type of representative. This rule does not change 
that practice in any respect. The rule expressly identifies persons who 
may appear before the agency, including both attorneys and non-attorney 
representatives, and identifies possible sanctions for misconduct by 
such representatives. Nothing presently precludes the Department from 
disciplining any representatives including attorneys who appear before 
it. Indeed, both attorneys and non-attorney representatives have been 
subject to possible discipline for years for violation of the 
Department's APO procedures. The Department recognizes that some 
agencies require certain non-attorney practitioners to enroll to 
practice before them (for instance, ATF). Trade remedies, however, is 
not a regulated industry warranting such enrollment.
    The Department shares the concern expressed by one commenter that 
this rule may not remedy misconduct by all practitioners, specifically 
those who do not operate in the United States. To the extent a foreign 
non-attorney representative (a foreign attorney, not licensed in the 
United States, a U.S. possession or territory, may not appear as an 
attorney in Department proceedings and may only appear as a non-
attorney representative) is found to have violated the rule, he or she 
will be subject to the same disciplinary sanctions by the Department as 
U.S. non-attorney representatives. Depending upon the nature of the 
misconduct, such an individual may thus receive a reprimand, a 
suspension for a period of time or disbarment from appearing before the 
agency and with respect to the latter two, would not be permitted to 
appear before the Department or sign submissions filed with the 
Department. To the extent a commenter is concerned that the suspended 
or disbarred foreign non-attorney representative could then begin to 
work for other companies behind the scenes, we agree that the 
Department's ability to police such matters is limited; however, the 
Department expects that any such cases would be exceptional and will 
seek to address them consistent with their particular facts.
    With respect to disciplining attorneys who appear before the 
Department, many federal agencies undertake similar endeavors. We agree 
that relevant Bar associations and Bar counsel are well able to 
discipline attorneys and the Department expects to refer the names of 
attorneys that the Department determines have engaged in misconduct to 
the appropriate Bar counsel.

Classification

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, 5 USC 601 et 
seq., the Chief Counsel for Regulation at the Department of Commerce 
certified to the Chief Counsel for Advocacy, Small Business 
Administration, at the proposed rule stage that this action would not 
have a significant economic impact on a substantial number of small 
entities. No comments were received regarding the economic impact of 
this rule. As a result, the conclusion in the proposed rule remains 
unchanged and a final regulatory flexibility analysis is not required 
and none has been prepared.

List of Subjects in 19 CFR Part 351

    Administrative practice and procedure, Antidumping duties, 
Countervailing duties.

    Dated: April 11,2013.
Paul Piquado,
Assistant Secretary for Import Administration.

    For the reasons stated above, the Department amends 19 CFR part 351 
as follows:

PART 351--ANTIDUMPING AND COUNTERVAILING DUTIES

0
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.


0
2. Add Sec.  351.313 to subpart C to read as follows:


Sec.  351.313  Attorneys or representatives.

    In general. 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. 2013-09041 Filed 4-16-13; 8:45 am]
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