[Federal Register Volume 63, Number 87 (Wednesday, May 6, 1998)]
[Notices]
[Pages 25064-25068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-12010]


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INTERNATIONAL TRADE COMMISSION


Summary of Commission Practice Relating to Administrative 
Protective Orders

AGENCY: U.S. International Trade Commission.

ACTION: Summary of Commission practice relating to administrative 
protective orders.

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SUMMARY: Since February 1991, the U.S. International Trade Commission 
(``Commission'') has issued an annual report on the status of its 
practice with respect to violations of its administrative protective 
orders (``APOs'') in investigations under Title VII of the Tariff Act 
of 1930 in response to a direction contained in the Conference Report 
to the Customs and Trade Act of 1990. Over time, the Commission has 
added to its report discussions of APO breaches in Commission 
proceedings other than Title VII and violations of the Commission's 
rule on bracketing business proprietary information (``BPI'') (the 
``24-hour rule''), 19 CFR 207.3(c). This notice provides a summary of 
investigations of breaches and violations of the 24-hour rule for the 
period ending in 1997. The Commission intends that this report educate 
representatives of parties to Commission proceedings as to some 
specific types of APO breaches and 24-hour rule violations encountered 
by the Commission and the corresponding types of actions the Commission 
has taken.

FOR FURTHER INFORMATION CONTACT: Carol McCue Verratti, Esq., Office of 
the General Counsel, U.S. International Trade Commission, telephone 
(202) 205-3088. Hearing impaired individuals are advised that 
information on this matter can be obtained by contacting the 
Commission's TDD terminal at (202) 205-1810. General information 
concerning the Commission can also be obtained by accessing its 
Internet server (http://www.usitc.gov).

SUPPLEMENTARY INFORMATION: Representatives of parties to investigations 
conducted under Title VII of the Tariff Act of 1930 may enter into APOs 
that permit them, under strict conditions, to obtain access to BPI of 
other parties. See 19 U.S.C. 1677f; 19 CFR 207.7. The discussion below 
describes APO breach investigations that the Commission has completed 
including a description of actions taken in response to breaches. The 
discussion covers breach investigations completed during calendar year 
1997.
    Since 1993, the report has also included a summary of the 
Commission's investigations involving violations of the 24-hour rule, 
which provides that during the 24-hour period after a Commission 
deadline for a party submission in an antidumping or countervailing 
duty proceeding, changes are permitted to the proprietary version to 
correct the bracketing of BPI; no other changes are permitted under 
that rule. See 19 CFR 207.3(c). The discussion below covers 
investigations of violations of this rule completed during 1997.
    In recent years, the Commission has expanded the report to include 
APO breaches in other types of proceedings as well. In 1997, no APO 
investigations were completed in proceedings other than Title VII 
investigations.
    Since 1991, the Commission has published annually a summary of its 
actions in response to violations of Commission APOs and the ``24-
hour'' rule. See 56 FR 4846 (Feb. 6, 1991); 57 FR 12,335 (Apr. 9, 
1992); 58 FR 21,991 (Apr. 26, 1993); 59 FR 16,834 (Apr. 8, 1994); 60 FR 
24,880 (May 10, 1995); 61 FR 21,203 (May 9, 1996), and 62 FR 13,164 
(March 19, 1997). This report does not provide an exclusive list of 
conduct that will be deemed to be a breach of the Commission's APOs. 
APO breach inquiries are considered on a case-by-case basis.
    As part of the effort to educate practitioners about the 
Commission's current APO practice, the Commission Secretary issued in 
April 1996 a revised edition of An Introduction to Administrative 
Protective Order Practice in Antidumping and Countervailing Duty 
Investigations (Pub. No. 2961). This document is available upon request 
from the Office of the Secretary, U.S. International Trade Commission, 
500 E Street, SW, Washington, DC 20436, telephone (202) 205-2000.

I. In General

    The current APO form for antidumping and countervailing duty 
investigations, which the Commission has used since March 1995, 
requires the applicant to swear that he or she will:
    (1) Not divulge any of the BPI obtained under the APO and not 
otherwise available to him, to any person other than--
    (i) Personnel of the Commission concerned with the investigation,
    (ii) The person or agency from whom the BPI was obtained,
    (iii) A person whose application for disclosure of BPI under this 
APO has been granted by the Secretary, and
    (iv) Other persons, such as paralegals and clerical staff, who (a) 
are employed or supervised by and under the

[[Page 25065]]

direction and control of the authorized applicant or another authorized 
applicant in the same firm whose application has been granted; (b) have 
a need thereof in connection with the investigation; (c) are not 
involved in competitive decisionmaking for the interested party which 
is a party to the investigation; and (d) have submitted to the 
Secretary a signed Acknowledgment for Clerical Personnel in the form 
attached hereto (the authorized applicant shall sign such 
acknowledgment and will be deemed responsible for such persons' 
compliance with the APO);
    (2) Use such BPI solely for the purposes of the Commission 
investigation [or for binational panel review of such Commission 
investigation or until superceded by a judicial protective order in a 
judicial review of the proceeding];
    (3) Not consult with any person not described in paragraph (1) 
concerning BPI disclosed under this APO without first having received 
the written consent of the Secretary and the party or the 
representative of the party from whom such BPI was obtained;
    (4) Whenever materials (e.g., documents, computer disks, etc.) 
containing such BPI are not being used, store such material in a locked 
file cabinet, vault, safe, or other suitable container (N.B.: storage 
of BPI on so-called hard disk computer media is to be avoided, because 
mere erasure of data from such media may not irrecoverably destroy the 
BPI and may result in violation of paragraph C of the APO);
    (5) Serve all materials containing BPI disclosed under this APO as 
directed by the Secretary and pursuant to section 207.7(f) of the 
Commission's rules;
    (6) Transmit such document containing BPI disclosed under this APO:
    (i) with a cover sheet identifying the document as containing BPI,
    (ii) with all BPI enclosed in brackets and each page warning that 
the document contains BPI,
    (iii) if the document is to be filed by a deadline, with each page 
marked ``Bracketing of BPI not final for one business day after date of 
filing,'' and
    (iv) if by mail, within two envelopes, the inner one sealed and 
marked ``Business Proprietary Information--To be opened only by [name 
of recipient]'', and the outer one sealed and not marked as containing 
BPI;
    (7) Comply with the provision of this APO and section 207.7 of the 
Commission's rules;
    (8) Make true and accurate representations in the authorized 
applicant's application and promptly notify the Secretary of any 
changes that occur after the submission of the application and that 
affect the representations made in the application (e.g., change in 
personnel assigned to the investigation);
    (9) Report promptly and confirm in writing to the Secretary any 
possible breach of the APO; and
    (10) Acknowledge that breach of the APO may subject the authorized 
applicant and other persons to such sanctions or other actions as the 
Commission deems appropriate including the administrative sanctions and 
actions set out in this APO.
    The APO further provides that breach of protective order may 
subject an applicant 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, such person or the party he represents; 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.
    Commission employees are not signatories to the Commission's APOs 
and do not obtain access to BPI through APO procedure. Consequently, 
they are not subject to the requirements of the APO with respect to the 
handling of BPI. However, Commission employees are subject to strict 
statutory and regulatory constraints concerning BPI, and face 
potentially severe penalties for noncompliance. See 18 U.S.C. 1905; 
Title 5, U.S. Code; and Commission personnel policies implementing the 
statutes. Although the Privacy Act (5 U.S.C. 552a) limits the 
Commission's authority to disclose any personnel action against agency 
employees, this should not lead the public to conclude that no such 
actions have been taken.
    An important provision of the Commission's rules relating to BPI is 
the ``24-hour'' rule. This rule provides that parties have one business 
day after the deadline for filing documents containing BPI to file a 
public version of the document. The rule also permits changes to the 
bracketing of information in the proprietary version within this one-
day period. No changes-- other than changes in bracketing--may be made 
to the proprietary version. The rule was intended to reduce the 
incidence of APO breaches caused by inadequate bracketing and improper 
placement of BPI. The Commission urges parties to make use of the rule. 
If a party wishes to make changes to a document other than bracketing, 
such as typographical changes or other corrections, the party must ask 
for an extension of time to file an amendment document pursuant to Rule 
201.14(b)(2).

II. Investigations of Alleged APO Breaches

    An investigation of an alleged APO breach in an antidumping or 
countervailing duty investigation commences when the Secretary, acting 
under delegated authority, issues to the alleged breacher a letter of 
inquiry to ascertain the alleged breacher's views on whether a breach 
has occurred. If, after reviewing the response and other relevant 
information, the Commission determines that a breach has occurred, the 
Commission often issues a second letter asking the breacher to address 
the questions of mitigating or aggravating circumstances and possible 
sanctions or other actions. The Commission then determines what action 
to take in response to the breach. In some cases, the Commission has 
determined that although a breach has occurred, sanctions are not 
warranted, and therefore has found it unnecessary to issue a second 
letter concerning what sanctions might be appropriate. Instead, it 
issues a warning letter to the individual. The Commission retains sole 
authority to determine whether a breach has occurred and, if so, the 
appropriate action to be taken.
    The records of Commission investigations of alleged APO breaches in 
antidumping and countervailing duty cases are not publicly available 
and are exempt from disclosure under the Freedom of Information Act, 5 
U.S.C. 552, Section 135(b) of the Customs and Trade Act of 1990, and 19 
U.S.C. 1677f(g).
    The breach most frequently investigated by the Commission involves 
the APO's prohibition on the dissemination of BPI to unauthorized 
persons. Such dissemination usually

[[Page 25066]]

occurs as the result of failure to delete BPI from public versions of 
documents filed with the Commission or of transmission of proprietary 
versions of documents to unauthorized recipients. Other breaches have 
included: the failure to properly bracket BPI in proprietary documents 
filed with the Commission; the failure to immediately report known 
violations of an APO; and the failure to adequately supervise non-legal 
personnel in the handling of BPI.
    Sanctions for APO violations serve two basic interests: (a) 
Preserving the confidence of submitters of BPI in the Commission as a 
reliable protector of BPI; and (b) disciplining breachers and deterring 
future violations. As the Conference Report to the Omnibus Trade and 
Competitiveness Act of 1988 observed, ``the effective enforcement of 
limited disclosure under administrative protective order depends in 
part on the extent to which private parties have confidence that there 
are effective sanctions against violation.'' H.R. Conf. Rep. No. 576, 
100th Cong., 1st Sess. 623 (1988).
    The Commission has worked to develop consistent jurisprudence, not 
only in determining whether a breach has occurred, but also in 
selecting an appropriate response. In determining the appropriate 
response, the Commission generally considers mitigating factors such as 
the unintentional nature of the breach, the lack of prior breaches 
committed by the breaching party, the corrective measures taken by the 
breaching party, and the promptness with which the breaching party 
reported the violation to the Commission. The Commission also considers 
aggravating circumstances, especially whether persons not under the APO 
actually read the BPI. The Commission considers whether there are prior 
breaches within the previous two-year period and multiple breaches by 
the same person or persons in the same investigation.
    The Commission's rules permit economists or consultants to obtain 
access to BPI under the APO if the economist or consultant is under the 
direction and control of an attorney under the APO, or if the economist 
or consultant appears regularly before the Commission and represents an 
interested party who is a party to the investigation. 19 CFR 
207.7(a)(3)(B) and (C). Economists and consultants who obtain access to 
BPI under the APO under the direction and control of an attorney 
nonetheless remain individually responsible for complying with the APO. 
In appropriate circumstances, for example, an economist under the 
direction and control of an attorney may be held responsible for a 
breach of the APO by failing to redact APO information from a document 
that is subsequently filed with the Commission and served as a public 
document. This is so even though the attorney exercising direction or 
control over the economist or consultant may also be held responsible 
for the breach of the APO.

III. Specific Investigations in Which Breaches Were Found

    The Commission presents the following case studies to educate users 
about the types of APO breaches found by the Commission. The case 
studies provide the factual background, the actions taken by the 
Commission, and the factors considered by the Commission in determining 
the appropriate actions. The Commission has not included some of the 
specific facts in the descriptions of investigations where disclosure 
could reveal the identity of a particular breacher. Thus, in some 
cases, apparent inconsistencies in the facts set forth in this notice 
result from the Commission's inability to disclose particular facts 
more fully.
    Case 1: Counsel for a party to a Commission investigation filed a 
submission with International Trade Administration, Department of 
Commerce (``Commerce'') in a Commerce investigation and served copies 
of the submission on the parties to the Commerce investigation. The 
submission contained BPI which counsel had obtained under a Commission 
APO. The Commission determined that one attorney did not breach the APO 
because he did not participate in the preparation or review of the 
Commerce submission and his name did not appear on the submission. The 
Commission determined that two attorneys who prepared and reviewed the 
submission filed with Commerce breached the APO. In reaching its 
decision to issue private letters of reprimand, the Commission 
considered that the BPI was viewed by an unauthorized person employed 
at Commerce. In addition, unauthorized persons may have viewed the BPI 
at the various law firms that were served copies of the submission. At 
least one person authorized to review BPI released under Commerce APOs 
was not authorized to review BPI released under the Commission's APO. 
The Commission noted that an even more important consideration was the 
admission by the attorneys that they were not aware of the explicit 
condition of the APO that information obtained under a Commission APO 
may not be used in any other investigation including the companion 
Commerce inquiry. This lack of awareness called into question the level 
of care that the attorneys exercised in regard to their obligations 
under the APO. In reaching its decision, the Commission also considered 
the mitigating factors that the two attorneys had not previously 
breached a Commission APO and that both reported and attempted to 
correct the breach promptly.
    Case 2: Counsel in an investigation submitted a public version of a 
document in which certain BPI contained in footnotes was not bracketed 
or redacted. The text to which the footnotes referred was bracketed. 
The BPI in question was contained in an attachment to a questionnaire 
response. The Commission staff discovered the possible breach, and the 
Secretary contacted counsel to inquire about the failure to bracket and 
redact the information in the footnote. Counsel responded immediately 
by submitting corrected pages to the Commission and persons on the 
service list, and instructing the recipients that the original pages be 
destroyed. In response to the Commission's inquiry about the possible 
breach, counsel argued that the information was available in the public 
domain because the information in question was not marked as 
confidential and was not bracketed. The Commission's consistent 
practice with regard to information submitted in connection with a 
questionnaire response is that it must be treated as confidential 
unless the party served with the response can establish that the 
material is elsewhere available in the public domain. Counsel failed to 
establish that the unbracketed and unredacted material was available in 
the public domain at the time that they filed the document in question. 
Thus, the Commission disagreed and determined that counsel breached the 
APO and issued warning letters. In reaching its decision, the 
Commission took into account that the attorneys had not previously 
breached an APO; there was no bad faith or willful conduct involved in 
connection with this breach; and they moved promptly to mitigate the 
breach once informed about it by the Secretary. It did not appear that 
any non-signatory to the APO had reviewed the BPI.
    Case 3: Two attorneys filed the public version of an in camera 
hearing submission with bracketed but unredacted BPI. They discovered 
the breach the following day, immediately reported it to the 
Commission, retrieved all copies from parties on the service list and 
the Commission, and obtained from each party a certification that no 
copies

[[Page 25067]]

were reviewed by non-signatories to the APO. The public version 
retrieved from the Commission's files had not been reviewed by any 
member of the public. The Commission determined that the two attorneys 
breached the APO and issued warning letters to them. In reaching its 
decision not to sanction the attorneys, the Commission considered that 
they had not been involved in prior breaches and they took action 
immediately after discovering the breach to limit the possibility of 
disclosure to unauthorized persons.
    A second alleged breach occurred on the same day when four 
attorneys from the same firm filed the public version of a brief which 
contained three items of what appeared to be unredacted BPI. The 
Commission Secretary's office notified counsel that the submission 
appeared to contain unredacted BPI. The law firm retrieved copies of 
the pages in question and filed corrected versions with the Commission, 
as requested by the Secretary. The Commission determined that two of 
the attorneys committed a breach of the APO when they failed to redact 
one item of BPI from the brief. In deciding to issue warning letters, 
the Commission considered that the attorneys had not been involved in 
prior breaches and took appropriate action upon discovering the breach. 
The Commission also noted that the information in question was 
disclosed publicly by the submitter very shortly after the breach.
    The Commission determined that disclosure of the other two items in 
question was not a breach of the APO because the information was not 
BPI. One item was publicly available and the other item was obtained 
directly from the client and not under the APO. The Commission 
determined that two of the attorneys did not breach the APO because 
they did not participate in the final review of the public version of 
the brief.
    Case 4: Employees for an economic consulting firm prepared and 
distributed documents containing bracketed but unredacted BPI at a 
public hearing. A signatory of the APO, an attorney for another party, 
noticed that BPI had not been redacted from the documents and 
immediately informed the Secretary, the law firm, and the consulting 
firm. All copies of the handout were retrieved immediately and all 
persons at the hearing who had copies of the handout in their 
possession, with the exception of the attorney who first noticed the 
BPI, stated that they did not review the BPI contained in the handouts. 
The Commission determined that two consultants breached the APO and 
issued private letters of reprimand. In reaching the decision that the 
breach had occurred, the Commission noted that the actual receipt and 
review of BPI by unauthorized persons is not a precondition for a 
finding of a violation of the APO. Failure to follow the rules which 
are protective of the information by leaving the information 
unprotected and potentially releasable is sufficient to constitute a 
breach of the APO. In reaching its decision to issue private letters of 
reprimand, the Commission considered that this was the second time in 
two years that the consultants had breached an APO. In reaching its 
decision, the Commission also considered the mitigating factors that 
the breach was inadvertent, the Commission was promptly informed of the 
breach, and the consultant took immediate steps to mitigate any 
possible damage from the breach.
    The Commission found that two other consultant firm employees, 
identified as clerical personnel in the APO applications, did not 
breach the APO because their work in preparing the documents was 
subject to review by the senior consultants. Although the consultants 
were under the direction and control of the lead attorney at a law 
firm, the Commission determined that no attorney at the firm was 
responsible for the breach because the consulting firm employees 
revised the documents after the attorneys had reviewed what they 
thought were the final versions, and no one advised the attorneys of 
the revision or requested that the attorneys review the revised 
documents.
    Case 5: (See Case B of the 24-hour rule.) Attorneys, signatories to 
the APO in an investigation, failed to bracket and redact BPI from a 
footnote in the public version of a brief. The Commission sent a letter 
of inquiry to three attorneys but determined that one of them did not 
breach the APO because he was not involved in the drafting of the 
public version of the brief or in any review or appraisal of data 
included in the submission. The Commission determined that two 
attorneys breached the APO and issued one attorney a letter of 
reprimand and the other a warning letter. In reaching its decision to 
issue a private letter of reprimand to one of the attorneys, the 
Commission took into account the principal aggravating circumstance 
that it was the second time within a few months that this first 
attorney had breached an APO by failing to bracket and redact BPI from 
a submission. The Commission also considered that there was no evidence 
of willful disregard of the APO. However, the breach was not the result 
of an accident or inadvertence, but the result of a conscious decision 
not to bracket information which the attorney continued to maintain was 
justified. The Secretary's office discovered the breach and, once 
advised that there had been a breach, the attorney moved promptly to 
mitigate the breach by retrieving the offending pages of the brief and 
replacing them with corrected pages.
    In reaching its decision to issue a warning letter to the second 
attorney, the Commission took into consideration that he had no prior 
APO violations. This attorney was involved in the preparation of the 
documents, but did not make bracketing decisions with respect to the 
submission and was not in a position to countermand the attorney who 
made those decisions.
    Case 6: Four attorneys were named as possibly breaching the APO by 
filing a submission before the Department of Commerce (Commerce) 
containing BPI obtained under the Commission APO and by labeling the 
submission public even though it contained BPI. The BPI in question had 
been obtained from the confidential version of the petition to which 
counsel had access under the Commission's APO but had not yet gained 
access to it under the Commerce APO. The day after the submission of 
the document to Commerce, the attorneys informed the Commission in 
writing of the potential breaches stemming from the submission to 
Commerce and took immediate steps to retrieve the submission and 
prevent the improper disclosure to unauthorized individuals.
    The Commission found that two of the attorneys did not breach the 
APO because they played no role in either the preparation or filing of 
the submission. The Commission determined that the two other attorneys 
committed two distinct breaches of the APO by including Commission BPI 
in a Commerce submission and by incorrectly labeling that document as a 
public document. The Commission issued private letters of reprimand to 
the two attorneys and reminded them that information obtained under the 
Commission's APO is not to be used in other agency proceedings without 
first obtaining the written consent of the Secretary of the Commission 
and the party from whom the BPI was obtained. The Commission considered 
as mitigating factors the fact that the attorneys had no previous 
breaches; they reported and corrected the breach promptly; and the firm 
strengthened its APO procedures subsequent to the breaches. Moreover, 
it appeared that the mislabeling of the document was unintentional and 
due to mistake or

[[Page 25068]]

oversight. In reaching its decision to issue private letters of 
reprimand, the Commission considered that there were two separate 
breaches in the same investigation and that the document was placed in 
a public file at Commerce where it may have been viewed by unauthorized 
persons.
    Case 7: Two attorneys, an economist, and a secretary from a law 
firm representing a party in an investigation failed to certify within 
a Commission deadline that APO documents in their possession had been 
destroyed and to attest to their good faith belief that there was no 
unauthorized access by any person to the APO materials. Pursuant to the 
APO, counsel was required to destroy the BPI documents and provide 
certification to that effect within 60 days of the termination of the 
investigation. However, since counsel appealed the Commission's 
determination to the U.S. Court of International Trade, the firm was 
permitted to retain the documents pending its application for a 
Judicial Protective Order (JPO). If a JPO is not sought, signatories to 
the APO in the law firm are required to destroy the documents and to 
provide certification promptly after 150 days have elapsed from the 
termination of the investigation. Counsel did not apply for a JPO and 
failed to provide the certification promptly after the 150 days had 
passed. In their response to the Commission's inquiry, counsel provided 
the required certification indicating that the documents had been 
destroyed immediately after the termination of the investigation. The 
Commission determined that the two attorneys and the economist breached 
the APO by not providing the certification within the required time 
period, and issued warning letters. In reaching a decision to issue 
warning letters, the Commission considered that there was no access to 
the APO documents by any unauthorized person; the breach appeared to 
have been unintentional; the attorney and economist took prompt action 
to remedy the breach; and they had no prior APO breach violations 
within the last two years. The Commission concluded that the secretary 
did not breach the APO as the Commission generally has not held 
clerical personnel responsible for breaches unless they have played a 
direct role in the circumstances contributing to a breach.
    Case 8: An attorney representing a party to a Commission 
investigation filed a letter with the Commission which was designated 
as public, although it contained bracketed but undeleted BPI. The 
Commission Secretary notified the attorney about the possible breach. 
In response, the attorney filed a revised letter and immediately took 
steps to retrieve the document from the other parties. Two weeks later 
the attorney filed a public version of a prehearing brief which 
contained BPI in one of the exhibits. Again, the Secretary notified the 
attorney who immediately took steps to retrieve the document from the 
other parties and prevent unauthorized disclosure. The Commission 
determined that breaches had occurred and issued a private letter of 
reprimand. In reaching its decision to issue a private letter of 
reprimand the Commission considered that, although the attorney had 
committed no prior breaches, the attorney had committed two separate 
breaches in the same investigation within weeks of each other. The 
Commission also considered the mitigating factors that, when informed 
of the breaches, the attorney took immediate steps to retrieve the 
information and prevent its unauthorized disclosure; the breaches were 
unintentional; and the law firm took action to prevent future 
violations of this nature.

IV. Investigations Involving the 24-Hour Rule

    Under Commission rule 207.3(c), parties that submit a proprietary 
version of a document with the Commission pursuant to a Commission 
deadline have one business day in which to check and correct bracketing 
of BPI before filing the nonproprietary version of the document. The 
rule expressly states however, that only bracketing changes may be made 
without leave of the Commission in the one business day interval 
between the filing of the confidential and the filing of the 
nonconfidential document. A party desiring to make any other changes, 
including correction of typographical errors, must request leave of the 
Commission to do so.
    Case A: Counsel to a party in an investigation filed a public 
version of the postconference brief which contained text which was not 
present in the confidential version of the brief. Leave of the 
Commission was not sought to make the non-bracketing change, nor was 
any mention of the additional material made when the public version of 
the brief was filed. The Commission determined that counsel violated 
Commission Rule 207.3 and issued a warning letter to each of the four 
attorneys who were signatories on the brief. In its letter, the 
Commission, noting that counsel's letter responding to the Commission 
inquiry stated that the change was made within one business day, 
advised counsel that the rule permits only bracketing changes and 
deletion of confidential information. Parties must request leave of the 
Commission to make a late filing to make any other changes to a 
previously filed document.
    In reaching its decision to issue warning letters, the Commission 
considered that the addition of text appeared to be inadvertent and 
counsel had no previous record of violating the 24-hour rule.
    Case B: (See Case 5 of the APO Breaches.) Two attorneys 
representing a party to a Commission investigation made changes to a 
submission that did not involve bracketing of information without 
receiving prior leave of the Commission. The Commission determined that 
the two attorneys had violated the 24-hour rule by making the non-
bracketing changes to submissions without seeking prior leave from the 
Commission. The Commission also found that the attorneys had breached 
the APO in the same investigation, but determined not to impose any 
additional sanction upon the attorneys for violation of rule 207.3, the 
24-hour rule. One attorney received a warning letter for the APO breach 
and the 24-hour rule violation. The Commission issued a private letter 
of reprimand to the second attorney for the APO breach and the 24-hour 
rule violation because it was his second breach violation within 
several months.
    The Commission determined not to hold a third attorney at the firm 
responsible for violation of the 24-hour rule because he played no role 
in the preparation of the brief.
    Case C: Three attorneys submitted a change to the filing of the 
public version of their prehearing brief prior to being granted leave 
to make the change. The Commission determined that the attorneys 
violated Commission Rule 207.3(c) and issued warning letters. In 
determining to issue warning letters, the Commission considered that 
the three attorneys had no previous record of having violated Rule 
207.3(c). In addition, since the attorneys had sought to make the 
change in their BPI version of the brief, filing the change to the 
public version prior to approval of this leave appeared to be an 
inadvertent procedural error.

    By order of the Commission.

    Issued: April 29, 1998.
Donna R. Koehnke,
Secretary.
[FR Doc. 98-12010 Filed 5-5-98; 8:45 am]
BILLING CODE 7020-02-P