[Federal Register Volume 66, Number 97 (Friday, May 18, 2001)]
[Notices]
[Pages 27685-27689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12496]


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INTERNATIONAL TRADE COMMISSION


Summary of Commission Practice Relating to Administrative 
Protective Orders

AGENCY: 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 in Title VII investigations completed during 
calendar year 2000. There were no completed investigations of breaches 
for other Commission proceedings or for 24-hour rule violations during 
that period. The Commission intends that this report educate 
representatives of parties to Commission proceedings as to some 
specific types of APO breaches 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 
2000.
    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); 62 FR 13,164 (March 19, 1997); 
63 FR 25064 (May 6, 1998); 64 FR 23355 (April 30, 1999); 65 FR 30434 
(May 11, 2000). This report does not provide an exhaustive 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 
March 2001 a third edition of An Introduction to Administrative 
Protective Order Practice in Import Injury Investigations (Pub. No. 
3403). This document is available upon request from the Office of the 
Secretary, U.S. International Trade Commission, 500 E Street, SW., 
Washington, DC 20436, tel. (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 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

[[Page 27686]]

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 a 
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 procedures. 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 
section 201.14(b)(2) of the Commission's rules.

II. Investigations of Alleged APO Breaches

    Upon finding evidence of a breach or receiving information that 
there is a reason to believe one has occurred, the Commission Secretary 
notifies relevant offices in the agency that an APO breach 
investigation file has been opened. Upon receiving notification from 
the Secretary, the Office of General Counsel (OGC) begins to 
investigate the matter. The OGC prepares a letter of inquiry to be sent 
to the possible breacher over the Secretary's signature to ascertain 
the possible 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 determines 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 occurs as the result of failure to 
delete BPI from public versions of documents filed with the Commission 
or transmission of proprietary versions of documents to unauthorized 
recipients. Other breaches have included: the failure to bracket 
properly BPI in proprietary documents filed with the Commission; the 
failure to report immediately known violations of an APO; and the 
failure to supervise adequately non-legal personnel in the handling of 
BPI.
    Counsel participating in Title VII investigations have reported to 
the Commission potential breaches involving the electronic transmission 
of public versions of documents. In these cases, the document 
transmitted appears to be a public document with BPI omitted from 
brackets. However, the BPI is actually retrievable by manipulating 
codes in software. The Commission has recently completed an 
investigation of such a breach that will be reported in the annual 
Federal Register notice for calendar year 2001. In that case, the 
Commission found that the electronic transmission of a public document 
containing BPI in a recoverable form was a breach of the APO.
    The Commission advised in the preamble to the notice of proposed 
rulemaking in 1990 that it will permit authorized applicants a certain 
amount of discretion in choosing the most appropriate method of 
safeguarding the confidentiality of the BPI. However, the Commission 
cautioned authorized applicants that they would be held responsible for 
safeguarding the confidentiality of all BPI to which they are granted 
access and warned applicants about the potential hazards of storage on 
hard disk. The caution in that preamble is restated here:

    [T]he Commission suggests that certain safeguards would seem to 
be particularly useful. When storing business proprietary 
information on computer disks, for example, storage on floppy disks 
rather than hard disks is recommended, because deletion of 
information from a hard disk does not necessarily erase the 
information, which can often be retrieved using a utilities program.

[[Page 27687]]

Further, use of business proprietary information on a computer with 
the capability to communicate with users outside the authorized 
applicant's office incurs the risk of unauthorized access to the 
information through such communication. If a computer malfunctions, 
all business proprietary information should be erased from the 
machine before it is removed from the authorized applicant's office 
for repair. While no safeguard program will insulate an authorized 
applicant from sanctions in the event of a breach of the 
administrative protective order, such a program may be a mitigating 
factor. Preamble to notice of proposed rulemaking, 55 FR 24,100, 
21,103 (June 14, 1990).

    In 2000, the Commission conducted four investigations of instances 
in which members of a law firm or consultants working with a firm were 
granted access to APO materials by the firm although they were not APO 
signatories. In all these cases, the firm and the person using the BPI 
mistakenly believed an APO application had been filed for that person. 
The Commission has completed three of these investigations to date and 
determined in all three cases that the person who was a non-signatory, 
and therefore did not agree to be bound by the APO, could not be found 
to have breached the APO. These persons could be sanctioned, however, 
under Commission rule 201.15 (19 CFR 201.15) for good cause shown. In 
all three cases, the Commission decided that the non-signatory was a 
person who appeared regularly before the Commission and was aware of 
the requirements and limitations related to APO access and should have 
verified their APO status before using the BPI. In all three cases the 
Commission issued warning letters because it was the first time the 
persons in question were subject to possible sanctions under section 
201.15 and there were no aggravating circumstances. These 
investigations will be individually summarized in the Federal Register 
notice summarizing cases completed in 2001.
    Sanctions for APO violations serve two basic interests: (a) 
preserving the confidence of submitters of BPI that the Commission is 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 by the same person or persons in other investigations 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 
of such facts 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: One associate attorney breached an APO by failing to redact 
BPI from the public version of his firm's Final Comments. Although the 
BPI was aggregate data, it had been bracketed in the Commission's staff 
report because it could be used with other publicly available data to 
determine the market share of one company. The BPI in the confidential 
version of the firm's Final Comments was properly bracketed.
    The Commission Secretary discovered the breach. Letters of inquiry 
were sent to three other attorneys in addition to the associate because 
their names were on the Final Comments. Responses to the letters showed 
that the associate had been responsible for the error and had been the 
only attorney to sign the public version of the Final Comments. 
Therefore, the Commission determined that the associate attorney had 
breached the APO and the three other attorneys had not. The Commission 
issued a private letter of reprimand to the associate because the 
record did not clearly show that the BPI had not been reviewed by a 
non-signatory.
    Three parties on the public service list, who were not signatories 
to the APO, received the Final Comments. One of these parties had 
forwarded the document to three client officials, one of whom had made 
copies. Although they destroyed all copies of the page with the BPI, 
their certifications did not state that they had not reviewed the 
document.
    In reaching its decision, the Commission also considered that the 
breach had been inadvertent and that the associate made prompt efforts 
to limit the possibility of disclosure to persons not already under the 
APO. This was the associate's first breach of an APO.
    Cases 2, 3, and 4: A law firm, new to Commission practice, became 
involved in a series of breaches in one investigation. Case 2 was a 
breach in which one of the partners had submitted BPI obtained under 
the Commission's APO to the Commerce Department. Before that 
information was retrieved, it had been read by individuals who were 
non-signatories to the Commission's APO. Case 3 involved two breaches. 
The first breach was caused by a junior associate attorney serving the 
BPI version of the prehearing brief on parties who were not APO 
signatories. In the second breach, the same associate served the public 
version of the post hearing brief while failing to redact one instance 
of BPI. Case 4 was a breach in which the law firm and the economic 
consulting firm working with the law

[[Page 27688]]

firm on the investigation failed to file certificates of destruction or 
return of the BPI obtained under the APO.
    The Commission found that all five of the attorneys in the law firm 
breached the APO. Two of the attorneys were given public letters of 
reprimand with six months suspension from access to BPI. Three of the 
attorneys, including the associate, were given private letters of 
reprimand. For the final breach, the economic consultants were issued 
warning letters.
    The Commission decided on the sanctions it imposed after 
considering the role of each of the attorneys in the preparation of the 
prehearing and posthearing briefs and the failure of the partners and 
senior attorneys to adequately supervise the junior associate and to 
develop procedures for the handling of BPI to avoid all of these 
breaches.
    The Commission found that the first breach, sending Commission BPI 
to Commerce, was the sole responsibility of one attorney who is a 
partner practicing for many years. The second and third breaches 
involving the pre hearing and post hearing briefs were the 
responsibility of the associate, the lead attorney, and a partner of 
the firm. The lead attorney prepared the briefs with the assistance of 
the associate and the partner reviewed the documents. The associate was 
given the sole responsibility for proofreading, cite checking, 
implementing final changes, filing, and serving the documents. Both the 
lead attorney and the partner were issued a public letter of reprimand 
and were suspended from access to BPI for six months because they 
delegated primary responsibility for APO compliance to a junior 
attorney and then failed to provide appropriate supervision of that 
attorney, which resulted in two APO breaches; they repeatedly failed to 
remedy obvious flaws in their firm's procedures for protecting BPI 
obtained under the APO; and they failed to certify to the return or 
destruction of the BPI obtained under the APO. The associate was issued 
a private letter of reprimand for serving a prehearing brief containing 
BPI on persons not covered by the APO, failing to redact BPI from the 
public version of the post-hearing brief, failing to remedy flaws in 
the firm's procedures for protecting BPI, and failing to certify to the 
return or destruction of the BPI obtained under the APO. The Commission 
noted that it reached its decision after considering that the associate 
was involved in multiple breaches over a short period of time and that 
the associate did not discover the breaches. In deciding on a private 
letter of reprimand, the Commission also considered that the breaches 
appear to have been inadvertent and that the associate made prompt 
efforts to minimize the public dissemination of BPI.
    The partner who transmitted Commission BPI to Commerce was issued a 
private letter of reprimand. The Commission noted that breach and found 
him also responsible for the third breach involving the post hearing 
brief because he failed to remedy flaws in his firm's procedures for 
protecting BPI. He also failed to certify to the return or destruction 
of the BPI obtained under the APO.
    The Commission issued a private letter of reprimand to the fifth 
attorney, also a partner. He was found responsible for the third breach 
for failing to remedy flaws in his firm's procedures for protecting BPI 
and by failing to certify to the return or destruction of the BPI 
obtained under the APO.
    In the letters to the partners and lead attorney the Commission 
explained that it recognized the firm's inexperience with Commission 
practice. Although such inexperience is a mitigating factor for the 
first breach, that breach put the firm on notice that the Commission's 
APO rules require a great deal of attention. Inexperience does not 
excuse the firm's subsequent lack of attention to APO compliance, 
particularly with regard to the delegation of unsupervised authority 
over APO matters to a junior attorney, and the continued reliance on 
that attorney after the attorney had committed one breach. Therefore, 
the Commission did not consider inexperience after the first breach to 
be a mitigating factor.
    Case 5: A law firm legal assistant provided the firm's clients, who 
were not signatories to the APO, with redacted copies of the 
confidential version of the pre-hearing brief, which contained BPI that 
had been left on two pages. The legal assistant had redacted the 
confidential version of the brief when the assistant was unable to 
locate the firm's public version of the pre-hearing brief.
    The Commission Secretary sent letters of inquiry to three attorneys 
who were named on the brief. One attorney responded with an affidavit 
that indicated he had no knowledge and was not involved in the breach. 
The Commission determined that he was not responsible for the breach. 
The lead attorney responded by taking responsibility for the breach and 
providing the Commission with information about the changed APO 
procedures in the law firm. The lead attorney was the attorney 
responsible for maintaining APO compliance by clerical employees, 
including legal assistants, since he signed the clerical 
acknowledgement as part of the firm's APO application. The third 
attorney was the attorney who had directed the legal assistant to 
provide the clients with copies of the public version of the pre-
hearing brief and was for that purpose the immediate supervisor of the 
legal assistant.
    The Commission found the lead attorney, the supervising attorney, 
and the legal assistant to be responsible for the breach and issued 
warning letters to all three. The clients who received the brief had 
not read it before the firm retrieved the brief. In determining to 
issue warning letters, the Commission also considered the facts that 
neither the attorneys nor the legal assistant had breached an APO in 
the previous several years, that the breach was unintentional, and that 
prompt action was taken to remedy the breach.
    Case 6: A lead attorney served the BPI version of a pre-hearing 
brief on a party that was not on the APO. When filing and serving the 
brief, the attorney had mistakenly printed from his computer and used 
the public service list. The attorney realized his mistake in the 
evening on the same day he served the briefs. He contacted the 
recipient law firm that was not a signatory to the APO the next 
morning. The law firm immediately returned the unopened envelope 
containing the brief.
    The Commission Secretary sent letters of inquiry to the lead 
attorney and another attorney whose name was also on the brief. Those 
attorneys and four other persons on the APO from the firm sent 
affidavits in response. The response also provided information on new 
procedures that were developed at the firm to prevent similar breaches 
in the future. The responses indicated that only the lead attorney 
participated in the serving of the brief. The Commission found that the 
lead attorney had breached the APO and issued a warning letter to him. 
The Commission informed the other attorney who had received a letter of 
inquiry of its decision that he did not breach the APO.
    In determining to issue a warning letter to the lead attorney, the 
Commission considered the facts that the breach was unintentional, he 
had no prior breaches, he took prompt action to remedy the breach, and 
no non-signatory of the APO actually read the document.
    Case 7: The Commission found two attorneys responsible for a breach 
in which they served the confidential version of their Final Comments 
on a firm that was not on the APO. The

[[Page 27689]]

Commission issued a warning letter to each of these attorneys.
    The more senior of the two attorneys directed the second attorney, 
a junior associate, to prepare a certificate of service for the BPI 
version of the final comments. The associate mistakenly retrieved a 
prior public certificate of service from his computer and changed 
pertinent dates and headings, but did not verify or modify the names on 
the list. He presented the certificate of service as the BPI version to 
the senior attorney who then directed others to copy the BPI version of 
the final comments and serve it on the parties on the certificate of 
service.
    The senior attorney discovered the mistake the following day when 
preparing to file the public version of the final comments. He 
immediately investigated the matter and took action to retrieve the 
document from the firm that had been served but was not on the APO. He 
was able to retrieve the document in the unopened, sealed envelope. The 
non-signatory who had received it declined to open the envelope because 
its markings showed it contained BPI. The senior attorney also 
immediately informed the Commission Secretary of the error.
    The Secretary sent letters of inquiry to the three attorneys whose 
names were on the Final Comments. After receiving the initial response 
to these letters, the Secretary sent a letter of inquiry to the junior 
associate who was involved. The Commission received affidavits from the 
four attorneys and seven other personnel subject to the APO. The 
responses indicated that the one senior attorney and the associate were 
the only ones involved in the service of the final comments. The 
responses also provided a description of new procedures that were being 
implemented to avoid a similar breach in the future.
    Based on the information provided, the Commission determined that 
the senior attorney and the associate were both responsible for the 
breach. The senior attorney admitted that the junior attorney was 
inexperienced and should have been supervised more closely. The 
Commission determined that the other two senior attorneys did not 
breach the APO because they were not involved in the service of the 
final comments. The Commission sent them letters informing them of that 
fact. In deciding to issue warning letters to the senior attorney and 
the associate, the Commission considered that neither attorney had 
prior breaches, the breach was unintentional, prompt action was taken 
to remedy the breach, and no non-signatory actually read the document.
    Case 8: In a five year review investigation, a law firm filed the 
public version of a prehearing brief that contained BPI which had been 
bracketed but not redacted. The BPI was contained in two footnotes in 
the text of the brief and in a chart in the economic analysis portion 
of the brief. The public version of the brief had been prepared by an 
attorney. A economic consultant working with the firm prepared the 
public version of the economic analysis. In addition, two other 
attorneys reviewed the brief and another economic consultant reviewed 
the economic analysis portion of the brief. The Commission determined 
that all three attorneys and the two consultants breached the APO and 
issued warning letters to each of them.
    One of the attorneys who had reviewed the brief discovered the 
breach the morning after it had been filed. He immediately contacted 
the economic consultants, opposing counsel, and the Commission 
Secretary. The opposing counsel had forwarded the document to three of 
his clients. However, he was able to retrieve the documents in unopened 
envelopes and then return the unredacted pages to the attorneys who had 
filed the brief. Thus, the three non-signatories to whom the brief was 
sent did not read the BPI.
    The Secretary initially sent letters of inquiry to the two 
attorneys whose names were on the brief and to a third attorney who had 
signed the certificate of service. The Secretary also sent a letter of 
inquiry to all of the economic consultants working for the firm who had 
signed the APO. The lead attorney responded to the letters of inquiry 
and enclosed affidavits from the APO signatories. The response 
indicated that the firm will continue its procedure of having two 
attorneys review a public document for BPI, but will make every effort 
to conduct the review the day before it is scheduled for filing so a 
more thorough review is possible.
    In deciding to issue warning letters to the three attorneys and the 
two consultants involved in this breach, the Commission considered the 
facts that this was the only breach in which they had been involved 
over the previous several year period, that the breach was 
unintentional, and that prompt action was taken to remedy the breach.

IV. Investigation in Which No Breach Was Found

    During 2000, the Commission completed one investigation in which no 
breach was found. A law firm filed the public version of the pre-
hearing brief and failed to redact bracketed information. One of the 
attorneys in the firm discovered the error, notified the Commission, 
and retrieved the document from the parties on whom it had been served. 
The information on the record does not indicate that any non-signatory 
read the unredacted information. The Commission Secretary sent letters 
of inquiry to three attorneys at the firm. Two of the attorneys 
responded in a letter and attached affidavits from the three attorneys 
and four other employees at the firm who had worked on the matter. The 
response presented the argument that the unredacted information was not 
BPI and the attorneys attached pages from the staff report and the 
Commission's report that contained public numbers the attorneys had 
used to derive the unredacted information. Based on the information 
provided by the firm and research that included discussions with the 
drafters of the two reports about what the information could reveal, 
the Commission determined that the information was aggregated data that 
would not reveal information about an individual company and, 
therefore, it was not BPI. The Commission therefore informed the 
involved persons that there was no breach of the APO.

    Issued: May 14, 2001.

    By order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 01-12496 Filed 5-17-01; 8:45 am]
BILLING CODE 7020-02-P