[Federal Register Volume 67, Number 110 (Friday, June 7, 2002)]
[Notices]
[Pages 39425-39438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-14386]


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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 in Title VII, sections 202 and 204 of the 
Trade Act of 1974, as amended, and section 337 of the Tariff Act of 
1930, as amended, completed during calendar year 2001. There were no 
completed investigations of 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

[[Page 39426]]

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, sections 202 and 
204 of the Trade Act of 1974, and section 337 of the Tariff Act of 
1930, as amended, 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; 19 U.S.C. 2252(i); 19 CFR 206.17; 19 U.S.C. 
1337(n); 19 CFR 210.5, 210.34. 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 2001.
    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); 66 FR 27685 (May 18, 2001). 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 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 
BPI 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

[[Page 39427]]

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 amended 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 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. A 
warning letter is not considered to be a sanction.
    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.
    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 completed two investigations of this 
type of breach in 2001 (Cases 10 and 16), and in both cases 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

[[Page 39428]]

information from a hard disk does not necessarily erase the 
information, which can often be retrieved using a utilities program. 
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 24100, 
21103 (June 14, 1990).

    In 2001, the Commission completed 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 (Cases 3, 5, 7, and 11). 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 determined in all four 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. 
Action could be taken against these persons, however, under Commission 
rule 201.15 (19 CFR 201.15) for good cause shown. In all four 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 obtaining access to and using the BPI. In all four 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.
    Also in 2001, the Commission found the lead attorney to be 
responsible for breaches in at least six cases where he or she failed 
to provide adequate supervision over the handling of BPI. (Cases 1, 3, 
6, 20, 22, and 32). Lead attorneys should be aware that their 
responsibilities for overall supervision of an investigation, when a 
breach has been caused by the actions of someone else in the 
investigation, may lead to a finding that the lead attorney has also 
violated the APO. In at least three of the investigations completed in 
2001, the lead attorney was found not to have violated the APO because 
his delegation of authority was reasonable (Cases 8, 34, and 35).
    In one investigation in 2001, a lead attorney was sanctioned with a 
private letter of reprimand under circumstances in which the Commission 
usually issues a warning letter. In that case the lead attorney made a 
conscious decision not to conform to the 60-day rule covering the 
return or destruction of BPI and certification to its destruction or 
return because he interpreted the APO to allow him to retain the 
materials for possible but not yet ripe appeals of the Commission's 
determination. The Commission found that this was not an inadvertent 
violation of the APO.
    In 2001, the Commission issued two public letters of reprimand 
(Cases 2, 19, 20, and 21). See 66 FR 57110 (Nov. 14, 2001) and 66 FR 
19516 (April 16, 2001).

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 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: An economic consultant prepared, filed, and served a public 
version of a postconference brief that contained BPI. The consultant 
inadvertently left a page from the confidential version of the brief in 
the public version. The consultant filed and served the public version 
of the brief on all parties to the investigation, and notified the lead 
attorney that filing and service had been completed. All the firms on 
the public certificate of service that received the improperly redacted 
brief were also on the APO certificate of service.
    A question arose as to the status of the attorney who discovered 
the breach because the attorney was not an original signatory to the 
APO, nor was he listed on the APO certificate of service. Prior to the 
time of discovery of the breach, however, he applied and was granted 
access to BPI. The Secretary determined that the attorney was a 
signatory to the APO because an attorney is deemed a signatory to the 
APO at the time of approval by the Secretary, and thus the breach was 
discovered by a signatory to the APO, although the attorney was not 
listed on the certificate of service.
    Immediately after discovery of the breach, the lead attorney 
notified the Commission and arranged for the return or destruction of 
the offending page. The Commission found that the consultant breached 
the APO by failing to redact BPI from the public version of the brief. 
The Commission also found that the lead attorney breached the APO by 
allowing the public version of the brief containing BPI to be filed and 
by failing to provide adequate supervision over the handling of BPI. 
The Commission determined that another attorney at the law firm did not 
breach the APO because she was not responsible for the preparation, 
service, or filing of the brief, or for overseeing the acts of the 
consultant. As mitigating circumstances, the Commission considered the 
unintentional nature of the breach, the prompt measures taken to 
rectify the situation, the increased security measures implemented at 
the firm to safeguard BPI in the future, and the discovery of the 
breach by a signatory to the APO. The Commission issued a private 
letter of reprimand to the consultant because it was his second APO 
breach within the time period normally considered by the Commission in 
determining sanctions, and issued a warning letter to the supervising 
partner.
    Case 2: Two attorneys prepared, filed, and served a public version 
of a prehearing brief which on one page contained BPI, which was 
neither bracketed in the confidential version nor redacted from the 
public version. A third attorney at the law firm reviewed both versions 
of the brief for APO compliance prior to filing. After notification by 
the Commission that a breach may have occurred, the attorneys took 
immediate steps to effect the return or destruction of the page 
containing BPI.
    The attorneys argued that the BPI at issue was not subject to the 
requirements of the APO because it could have been found in the public 
domain. The Commission ultimately determined that a breach occurred 
because the statement at issue was based in part on BPI. The Commission 
found that the exact statement at issue was not publicly available and 
the two attorneys failed to exercise due care with regard to BPI. The 
Commission noted that the attorneys involved, as experienced trade 
lawyers, should have been aware that the type of information at issue 
is often treated as BPI. The two attorneys who prepared the brief were 
issued a public letter of reprimand since it was the third breach by 
one attorney and the fourth breach by the other attorney within a short 
period of time. The Commission also found that the third attorney 
breached the APO

[[Page 39429]]

because he served as APO manager for the firm and failed to discover 
the breach. The third attorney was issued a private letter of reprimand 
rather than a warning letter. He was the firm's APO compliance manager 
yet failed to discover the breach, he was on notice of the need to 
review the documents with great care because of prior APO breaches by 
members of his firm, and, at the time of this decision, he was under 
investigation for two more possible APO breaches.
    Case 3: An attorney utilized BPI obtained from his law firm when 
drafting posthearing and prehearing briefs, based on a mistaken 
assumption that he was a signatory to the APO. The attorney later 
realized that he was not a signatory. After further review, it was 
discovered that the APO coordinator of the firm never included the 
attorney in its APO application to the Commission.
    The Commission determined that two attorneys in the firm breached 
the APO. The lead attorney breached the APO because he failed to 
provide adequate supervision over the handling of BPI. The second 
attorney was found responsible for the breach because he was the APO 
compliance attorney within the firm. The Commission issued warning 
letters to the attorneys because the breach was unintentional, the non-
signatory attorney safeguarded the BPI as if he was a signatory to the 
APO, immediate corrective actions were taken once the breach was 
discovered, and increased safeguard measures were implemented at the 
firm to prevent future breaches. In addition, in deciding to issue 
warning letters instead of private letters of reprimand, the Commission 
distinguished this situation from others in which BPI is mistakenly 
sent to other parties or is released to clients or the public, and a 
non-signatory subsequently reads the BPI.
    Although the Commission found that the non-signatory attorney had 
not breached the APO because he was not a signatory, his use of the BPI 
was actionable under rule 201.15 for his failure to verify that he was 
a signatory to the APO. He was issued a warning letter. Although the 
attorney used the BPI on multiple occasions and was previously warned 
as a result of another APO breach to take better care when handling APO 
matter, the Commission noted that this was the first time he was 
subject to a possible sanction under rule 201.15. As mitigating 
factors, the Commission considered the unintentional nature of the 
breach and the attorney's adherence to the APO as though he was a 
signatory.
    Case 4: Counsel submitted a public version of a posthearing brief 
containing unredacted BPI, which was discovered by the Secretary during 
a routine review of the submission. The firm argued that the 
information was not BPI because it was public information that could be 
found elsewhere in the record of the investigation. While reviewing the 
public version of the brief as a result of the Secretary's 
notification, the firm discovered another possible breach on a 
different page of the public brief involving the failure to redact BPI. 
The firm retrieved a copy of the offending submission from the single 
non-APO signatory upon which it had been served, and provided the 
Commission and all signatories on the proprietary and public service 
lists with replacement pages.
    The Commission determined that an APO breach did not occur as to 
the first breach because the information in question was revealed at a 
prior public hearing and entered into the record. The Commission 
determined that a breach did occur as to the failure to redact 
information on the other page of the brief because that information was 
BPI. The Commission issued warning letters to the attorney and legal 
assistant responsible for the preparation, filing, and service of the 
public version of the brief. In the case of two other attorneys whose 
names were on the posthearing brief, the Commission found that they did 
not breach the APO because they possessed no firsthand knowledge of the 
preparation and filing of the public version of the brief. In deciding 
to issue warning letters, the Commission considered the unintentional 
nature of the breach, the promptness with which the firm rectified the 
breach, the existence and subsequent reinforcement of the law firm's 
internal procedures to protect BPI, and the absence of any prior 
violations by the attorneys involved in this investigation.
    Case 5: A law firm provided personnel at an outside economic 
consulting firm, who were non-signatories to the APO, with various 
documents received under an APO. After discussion about the BPI 
contained in such documents was conducted between the law firm and 
consulting firm, an attorney at the law firm discovered that the 
personnel at the consulting firm had not signed the APO application. 
After confirming this fact, the law firm promptly retrieved all APO 
materials from the consulting firm.
    The Commission determined that two attorneys at the law firm were 
responsible for the breach. The lead attorney breached the APO because 
he was responsible for the overall conduct of the case, and nonetheless 
disseminated and discussed BPI with non-signatories. The other attorney 
was found responsible because he was the firm's APO compliance 
attorney, and he also disseminated and discussed BPI with non-
signatories. The Commission issued warning letters to the attorneys. In 
determining the appropriate action, the Commission considered the 
absence of any violations in the two years prior to the investigation, 
the promptness with which the attorneys remedied the problem, and the 
existence of internal procedures within the economic consulting firm in 
safeguarding BPI. Although the attorneys released BPI to non-
signatories of the APO, the Commission determined that the consultants' 
treatment of the information as if they were under the APO was 
sufficient to warrant issuance of a warning letter rather than a 
private letter of reprimand.
    The Commission found the actions of three consultants, who viewed 
and discussed the BPI, actionable under rule 201.15 because the 
consultants regularly appeared before the Commission and were fully 
aware that BPI should be handled only after ensuring they were on the 
APO. The Commission issued a warning letter to the consultants because 
this was the first time their actions were actionable under rule 
201.15.
    Case 6: An economist at a law firm, who was a signatory to the APO, 
transmitted a posthearing brief containing BPI to an attorney who 
represented a party in the investigation but who was not a signatory to 
the APO. Upon receipt of the package containing the brief and without 
opening it, the non-signatory attorney immediately contacted the lead 
attorney responsible for the preparation of the brief and returned it 
to him. Upon notification to the Secretary, the Commission conducted an 
investigation and determined that both the economist and lead attorney 
breached the APO because the economist made BPI available to a non-
signatory to the APO and the lead attorney failed to adequately 
supervise the economist in the use and release of BPI. The Commission 
issued private letters of reprimand instead of warning letters to both 
individuals because it was the second APO violation for each.
    Case 7: An attorney provided BPI to an outside economic consultant 
under the mistaken belief that the consultant was a signatory to the 
APO. Personnel at the law firm discovered the error and informed the 
Secretary. After an investigation was initiated, the attorney notified 
the Secretary that he had also mistakenly provided BPI to his legal 
secretary two days before the secretary was authorized to view it under 
the

[[Page 39430]]

APO. Both the consultant and legal secretary believed they were 
signatories to the APO at the time of breach and acted in accordance 
with the APO's requirements.
    The Commission found that the attorney breached the APO by 
providing BPI to unauthorized persons. The Commission issued a warning 
letter to the attorney instead of a private letter of reprimand because 
it considered the case a single breach, although the breach involved 
two individuals who were non-signatories to the APO. The Commission 
also took into account the unintentional nature of the breach, the 
immediate actions taken to remedy the breach and to include on the APO 
the non-signatories who had prior unauthorized access to BPI, the 
implementation at the law firm of new procedures to avoid future 
breaches, and the use of the BPI by the non-signatories as though they 
were signatories to the APO.
    The Commission issued a warning letter to the consultant pursuant 
to rule 201.15 because of his failure to verify whether he was a 
signatory to the APO. The Commission also considered as aggravating 
factors the full use of BPI by the consultant, and his awareness of APO 
obligations as a former employee of the Commission and a frequent 
participant in Commission proceedings. The legal secretary was not 
sanctioned pursuant to rule 201.15 because clerical employees do not 
sign individual APO applications and thus have less independent 
responsibility to determine their status under APOs.
    Case 8: An attorney filed and served a public version of a 
prehearing brief that contained unredacted BPI. The attorney notified 
the Commission and relevant parties the next morning and retrieved each 
copy of the brief. Although the briefs were served on non-signatories 
to the APO, the briefs were not, to the best of counsel's knowledge, 
read by any of them. Upon investigation, the Commission determined that 
the attorney, as the attorney who was in charge of preparing the brief, 
breached the APO. The Commission issued a warning letter because the 
breach was unintentional and this was the first APO violation for both 
the attorney and firm. In addition, the firm implemented new procedures 
to prevent future breaches. The lead attorney in the case was not found 
to have committed an APO breach because he was not involved in the 
preparation of the brief, and his reliance on the senior attorney who 
was in charge of preparing the brief was reasonable.
    Case 9: Three attorneys sent a letter to the Secretary containing 
BPI. A public version of the letter containing BPI was subsequently 
filed with the Commission and served on a non-signatory to the APO. 
Upon discovery, the attorneys immediately retrieved the letter before 
it was read by the non-signatory. The Commission found that the 
attorney supervising the preparation of the public version of the 
letter breached the APO by failing to redact BPI and by making it 
available to a non-signatory to the APO. A warning letter was issued in 
light of the unintentional nature of the breach, the absence of any 
prior APO breaches by the attorney, the immediate notification and 
corrective actions taken once the breach was discovered, and the 
implementation at the law firm of strengthened procedures to prevent 
future breaches.
    Case 10: An attorney authorized a legal secretary to transmit, via 
e-mail, a public version of a prehearing brief to an attorney who was 
not a signatory to the APO. The electronic version of the brief 
contained BPI that was masked but not deleted. As a result, the BPI 
could have been retrieved by someone who was able to alter the software 
print codes. The possible breach was discovered by the transmitting 
firm's APO administrator.
    The Commission determined that the attorney and legal secretary 
breached the APO by making BPI available to a non-signatory to the APO. 
Warning letters were sent to both individuals. As mitigating factors, 
the Commission took into account the unintentional nature of the 
breach, the discovery of the violation by the breachers, the prompt 
measures taken by the breachers to remedy the breach, and the 
destruction of the BPI prior to being viewed by a non-signatory.
    Case 11: Three attorneys at a firm, non-signatories to an APO, 
reviewed and utilized BPI. One of the attorneys reviewed BPI contained 
in documents under the APO and utilized it in the preparation of 
prehearing briefs. The two other attorneys reviewed BPI when they 
proofread the briefs at the instruction of the attorney preparing the 
brief.
    The Commission found two other attorneys at the firm, signatories 
to the APO, in breach of the APO for failing to ascertain that the 
three non-signatory attorneys were not on the APO list. Although the 
Commission found that the non-signatory attorney who prepared the brief 
did not breach the APO because he had not signed it, his use of the BPI 
was actionable under rule 201.15. The Commission issued each of the 
three attorneys a warning letter in light of the unintentional nature 
of the breach, the discovery of the breach by the law firm, and the 
prompt action taken to remedy the breach. In the case of the non-
signatory attorney who prepared the brief, the Commission considered 
the fact that he treated the BPI as if he was on the APO.
    The two attorneys who proofread the brief were not found to have 
breached the APO because they were not signatories to the APO and their 
actions were not sufficient to demonstrate good cause for action under 
rule 201.15.
    Case 12: Attorneys filed and served a public version of a 
prehearing brief that contained BPI. BPI that was bracketed in an 
attachment to the confidential version of the brief was not redacted in 
the public version. The Secretary discovered the error during a routine 
review of the submission and alerted the firm. The firm immediately 
retrieved the briefs from all parties and received confirmation from 
them that the BPI was not seen by anyone not subject to the APO. One of 
the attorneys involved in the breach asserted that White-out tape 
covering the BPI at issue fell off during the photocopying process, 
resulting in the breach.
    The Commission found that the two attorneys responsible for the 
preparation, filing, and service of the brief breached the APO by 
making BPI available to unauthorized persons, and issued warning 
letters to them. In deciding to issue warning letters, the Commission 
considered the inadvertent nature of the breach, the prompt steps taken 
to rectify the situation, the retrieval of the BPI prior to its review 
by anyone, and the absence of any prior violations by the attorneys.
    Case 13: An attorney prepared, filed, and served a prehearing brief 
containing BPI that was neither bracketed in the confidential version 
nor redacted in the public version. Before discovery of the breach, the 
attorney failed to serve the brief by hand or overnight delivery as 
required by Commission rule 207.3. After learning of the service error, 
the Secretary rejected the prehearing brief as improperly served. The 
attorney refiled the brief with the Secretary and the Commission 
accepted the late filing after the attorney sought leave to file the 
brief out of time.
    An attorney representing another party in the case noticed the 
breach upon receiving the brief by first class mail and notified the 
attorney and Commission. The attorney who filed the brief immediately 
contacted all other counsel and asked them to retrieve and return all 
copies of the prehearing brief. The briefs were returned, but counsel 
for one of the parties stated that the brief had already been forwarded 
to his client. Counsel for each party asserted

[[Page 39431]]

that the brief was not reviewed by any non-signatories to the APO, 
including the attorney who had forwarded the brief to his client. Upon 
refiling and reservice, the attorney once again failed to bracket BPI 
that was unbracketed in the original filing. The attorney retrieved the 
page in question from all counsel and the Commission and provided a new 
page correcting the error.
    The attorney argued that a breach did not occur as to two items of 
information because one item was publicly disclosed in a prehearing 
staff report and the other item could be logically inferred from 
numerous public statements made by the industry. The Commission agreed 
but found that a breach occurred as to three other items that 
constituted BPI. Although the attorney made immediate efforts to 
rectify the situation and no evidence existed that BPI was viewed by 
non-signatories to the APO, the Commission issued a private letter of 
reprimand to the attorney due to several aggravating factors. First, 
the Commission did not view the breach as inadvertent, as the attorney 
stated that he had closely reviewed the information in question and 
made a conscious decision not to bracket it. Second, the attorney 
violated the Commission's rules when he failed to serve the brief by 
hand or overnight delivery. Finally, the attorney failed to correct all 
the problematic disclosures in the brief before filing it with the 
Commission a second time.
    Case 14: Two attorneys prepared, filed, and served a prehearing 
brief. One of the attorneys discovered that the public version of the 
brief contained BPI. He immediately notified the Secretary and 
retrieved the pages containing the BPI from the other parties and filed 
and served three replacement pages. After the replacement pages were 
filed and served, an attorney representing another party contacted the 
Secretary to inform her that there was additional BPI in the brief that 
had not been bracketed in the confidential version and had not been 
redacted from the public version of the brief. The Secretary instructed 
the breaching attorneys to file new amended pages for both the 
confidential version and the public version of the brief.
    The attorneys argued that the type of BPI discovered by the other 
attorney is often public and, therefore, the failure to redact was 
understandable. Upon investigation, the Commission found that the two 
attorneys responsible for the preparation and review of the brief had 
breached the APO. The Commission issued private letters of reprimand to 
the attorneys due to their filing of three defective versions of the 
brief (two of the public version and one of the confidential version) 
and their failure to exercise proper diligence to ensure that BPI was 
not revealed to the public. Some mitigating circumstances were present: 
the inadvertence of the breach involving the BPI discovered by the 
breacher, the prompt correction of the unauthorized disclosures, and 
the absence of any prior APO breaches for both attorneys.
    Case 15: Two attorneys prepared, filed, and served a prehearing 
brief containing BPI on one page that was neither bracketed in the 
confidential version nor redacted in the public version. The Secretary 
instructed the attorneys to retrieve the page in question from the 
Commission and parties. After filing a replacement page, they filed a 
letter with the Commission stating that neither the confidential nor 
the public version of the original prehearing brief had been disclosed 
to anyone not having access to BPI. The attorney having primary 
responsibility for preparing the brief stated that he overlooked the 
BPI in question because he was under the impression that the quoted 
information was publicly available. The second attorney, responsible 
for reviewing the brief for typographical and bracketing errors, stated 
that he inadvertently failed to consider that the domestic producer's 
questionnaire response was the source of the information.
    The Commission determined that both attorneys breached the APO by 
making BPI available to unauthorized persons. Despite the discovery of 
the breach by the Secretary, and not by the attorneys, Commission 
issued a warning letter because of the unintentional nature of the 
breach, the absence of any prior breaches by the attorneys, and the 
prompt action taken by the attorneys to mitigate the breach. A third 
attorney who was a signatory to the APO and signed the brief was found 
not to have breached the APO because he had no responsibility for the 
preparation or filing of the brief.
    Case 16: Counsel prepared and electronically forwarded a non-
confidential draft of a prehearing brief containing BPI to an attorney 
and an economist, both of whom were signatories to the APO. The draft 
was created using a software program that electronically suppressed all 
data within brackets. Although not visible when viewed on a computer 
screen or printed in hard copy, the BPI contained in the draft could 
have been restored by someone who was knowledgeable about the operation 
of the software. The attorney preparing the brief asserted that he was 
unaware that there was BPI in the draft at the time of transmission. At 
the direction of the attorney receiving the electronically transmitted 
brief, the draft was electronically forwarded by the economist to an 
official of the client corporation. Once received by the official, it 
was electronically forwarded to another official of the client 
corporation. Neither official was a signatory to the APO. At the time 
of receipt, neither official was aware that redacted BPI could be 
electronically restored in the draft brief.
    In the course of editing the brief, the attorney responsible for 
the preparation of the brief realized that BPI still existed in 
recoverable form. Recognizing that a possible APO breach may have 
occurred, the attorney contacted the Secretary. The attorney who had 
received the electronically transmitted brief contacted the economist 
and client-officials, and requested that they destroy the electronic 
version of the draft brief sent to them. A letter was filed with the 
Commission stating that no actual disclosure of BPI occurred.
    The Commission found that the attorney in charge of the preparation 
of the brief breached the APO by e-mailing a draft of the public 
prehearing brief that contained retrievable BPI. Although he did not 
know that the draft contained BPI, he had the responsibility to be 
fully aware of how the document was prepared because a legal assistant 
was preparing the document and non-signatories would ultimately see the 
brief. The Commission issued a warning letter to the attorney in light 
of the unintentional nature of the breach, the fact that the attorney 
discovered the breach, the promptness with which the breach was 
rectified, the certifications by the non-signatories that the brief was 
not read, and the implementation of a new policy within the law firm 
that documents under an APO will not be electronically transmitted.
    The economist and second attorney were found not to have breached 
the APO because they were unaware that the brief contained BPI and its 
preparation was not under their control or supervision. In the case of 
the second attorney, he took an additional precaution by visually 
checking the document to ensure that all BPI had been deleted before he 
arranged to have the document forwarded to his client.
    Case 17: Counsel prepared, filed, and served a public document that 
contained BPI. The Secretary discovered the breach and notified the 
attorney. The page containing BPI was retrieved from all those on the 
service list except for one firm. That firm stated that it never 
received the document. The

[[Page 39432]]

attorney was able to confirm that the document had not been copied or 
distributed by the other firms on the service list.
    According to the attorneys who signed the document and were 
signatories to the APO, the breach occurred because the attorney 
preparing the document failed to have it checked by a second attorney, 
as required by the law firm's APO procedures. Moreover, the attorneys 
argued that the information at issue was not BPI because it did not 
contain commercial information and the information was later revealed 
in a publicly available Commission staff report. The Commission 
determined that the information at issue was BPI at the time it was 
released and that a breach had occurred.
    The Commission held that the attorney responsible for the 
preparation of the brief committed a breach by allowing BPI to become 
publicly available. The Commission did not hold the other attorneys who 
signed the document responsible because, by not following the firm's 
APO procedures, the attorney who prepared the brief precluded another 
attorney from reviewing the document for potential APO violations. In 
addition, the attorney was a third year associate and had no prior 
breaches that would have alerted the other attorneys who signed the 
document that they needed to provide closer supervision of APO 
materials.
    The Commission considered the fact that one of the copies of the 
document was never found as an aggravating circumstance. Nonetheless, 
the Commission issued a warning letter in light of the unintentional 
nature of the breach, the prompt action taken to rectify the breach, 
the absence of any information suggesting that any non-signatory to the 
APO read the BPI, the implementation at the law firm of additional 
safeguards to prevent future breaches, and the absence of any prior 
breaches by the attorney.
    Case 18: Two attorneys prepared, filed, and served a public version 
of a posthearing brief that contained unredacted BPI. Immediately after 
being notified of this error by opposing counsel, the attorneys 
contacted the Secretary and the other parties, requesting that they 
destroy the page containing BPI and replace it with a corrected 
version.
    The attorneys, signatories to the APO, argued that because the 
error was corrected within the 24-hour deadline prescribed for the 
filing of a brief under rule 207.3(c), they did not breach the APO. 
However, the Commission held that rule 207.3 was not applicable because 
that rule applies only to bracketing changes made to confidential 
briefs and not to public briefs. Therefore, the Commission determined 
that the attorneys breached the APO by failing to redact BPI and making 
it available to non-signatories to the APO. The Commission issued 
warning letters to the attorneys because the breach was unintentional 
and immediately rectified. Moreover, the attorneys had no prior APO 
breaches.
    Case 19: Two attorneys and a consultant filed a prehearing brief 
with the Department of Commerce containing bracketed BPI obtained under 
the APO in the Commission investigation. In addition, the two attorneys 
and their secretary sent a copy of the confidential brief to a law firm 
that was not a signatory to the Commission's APO and was no longer a 
signatory to Commerce's APO. The secretary typed the brief, made 
copies, and prepared envelopes for service on other parties. In 
determining whom to serve, she used an old certificate of service list 
that had not been updated, even though one of the attorneys told her 
that the firm had received an updated service list. The Commission 
found that the attorneys and the secretary breached the Commission's 
APO in releasing the brief to DOC personnel. The Commission determined 
that some of the information contained in the brief was BPI and not 
publicly available because it came from Commission questionnaire 
responses, which were provided only to the parties to the Commission 
investigation under its APO. The two attorneys and the secretary failed 
adequately to explain their contention that the information in question 
was independently known to industry participants. The Commission 
decided that the consultant did not breach the Commission's APO, as she 
was not involved in preparing, filing, or serving the prehearing brief 
and had no personal knowledge of any circumstances surrounding the 
possible breach.
    The Commission issued a warning letter to the secretary. As 
mitigating factors, the Commission considered that this was the only 
breach in which the secretary was involved within the time period 
generally examined by the Commission for the purpose of determining 
sanctions, the breach was unintentional, prompt action was taken to 
minimize the effect of the breach, the non-signatory law firm did not 
view the BPI, and the secretary was under the direction and supervision 
of an attorney.
    In determining the proper sanctions for the two attorneys, the 
Commission decided to consider the APO breaches committed by one of the 
attorneys in this case at the same time it considered sanctions for the 
breach he committed in Case 20. The Commission determined the sanctions 
against the second attorney in concert with consideration of the 
sanctions against him in two other APO violations, Cases 20 and 21.
    Case 20: The lead attorney, a second attorney, and a consultant 
submitted a public version of their final comments to the Commission, 
but failed to redact BPI from two pages of the Comments. The Secretary 
noticed the errors a day after the comments were filed and notified one 
of the attorneys. That same day the attorney called all parties that 
had received copies of the comments and requested that they destroy the 
pages containing the BPI.
    The Commission found that the consultant, who was not a signatory 
to the APO, did not breach the APO because, although his name was on 
the Final Comments, he only had client contact responsibilities and 
never had access to the APO materials. The Commission determined that 
both attorneys breached the APO by failing to redact the BPI. In 
addition, the lead attorney also breached by failing to provide 
adequate supervision over the handling of BPI.
    The Commission determined the sanctions for the lead attorney in 
connection with Case 19, discussed above. The Commission decided to 
publicly reprimand the lead attorney in the Federal Register. 66 FR 
57110 (November 14, 2001). In reaching this decision, the Commission 
considered the fact that the breaches committed by the attorney were 
his second and third breaches within a short period of time. In 
addition, the Commission, in the public letter, required the law firm 
to have at least two attorneys review all documents for future filings 
with the Commission to ensure APO compliance. The two-attorney review 
requirement is in effect for the two-year period starting with the date 
the public reprimand was published in the Federal Register. The 
Commission decided the sanctions against the second attorney in concert 
with Cases 19 and 21.
    Case 21: Three attorneys filed and served a public version of their 
final comments that contained BPI. The lead attorney who had been the 
second attorney in Cases 19 and 20 prepared the documents and took sole 
responsibility for the breach. He argued that the information in 
question was publicly available. The Commission disagreed and found 
that the lead attorney breached the APO because he received the 
information from a

[[Page 39433]]

Commission investigator's report that relied on data given by a 
domestic producer's representative. The Commission found that the two 
other attorneys did not breach the APO because they did not prepare the 
final comments.
    In sanctioning the attorney who breached the APO, the Commission 
also considered the attorney's previous breaches in Cases 19 and 20. As 
an aggravating factor, the Commission found it significant that the 
attorney had committed four breaches within a short period of time. The 
Commission publicly reprimanded the attorney in the Federal Register. 
66 FR 57110 (November 14, 2001). The Commission also suspended the 
attorney's access to BPI for six months from the date the public 
reprimand was published in the Federal Register. Finally, as noted in 
Case 20, the Commission required the attorney's law firm to have at 
least two attorneys review all documents for future filings with the 
Commission to ensure APO compliance.
    Case 22: An associate attorney, his secretary, and the lead 
attorney breached the APO by transmitting BPI to four embassy officials 
who were non-signatories to the APO, but were on the public service 
list. Over a 17-day period, BPI was sent to the same four embassies on 
four separate occasions. In deciding that the associate attorney, his 
secretary, and the lead attorney breached the APO four times, the 
Commission considered the lack of attention paid to the certificates of 
service for both confidential and public documents. The Commission 
determined that either none of the parties noticed that the public 
certificate of service had been used for both confidential and public 
materials or the parties lacked awareness that the two service lists 
were different. In addition, the Commission found that the law firm did 
not provide adequate safeguards or supervision to protect BPI from 
delivery to unauthorized persons.
    The Commission sanctioned the associate attorney, his secretary, 
and the lead attorney by issuing private letters of reprimand to them. 
As mitigating factors, the Commission considered the unintentional 
nature of the breaches, the timely reporting of the breaches once 
discovered, the efforts to mitigate any harm caused by the breaches, 
the lack of previous APO breaches, and efforts by the firm to prevent 
future breaches. As aggravating factors, the Commission considered the 
large number of breaches in one investigation, the large volume of APO 
materials involved, and the significant amount of time during which the 
BPI was unprotected. The Commission determined that it could not be 
certain that no BPI was divulged to unauthorized persons.
    Case 23: A partner and an associate filed the public version of a 
prehearing brief, which had an annex that contained BPI. One of the law 
firm's clients notified the parties three days after filing of the 
possibility of a breach after two executives of the client corporation 
had read the annex containing the BPI. The associate notified the 
Commission the same day and both attorneys immediately contacted 
counsel for the other parties and provided substitute annexes.
    The Commission found that both attorneys breached the APO and 
issued them private letters of reprimand. As mitigating factors, the 
Commission considered that the breach was unintentional, the attorneys 
took immediate action to remedy the situation by notifying the 
Commission, contacting counsel for the other parties, and providing 
substitute annexes, this was the only breach in which the attorneys had 
been involved during the time period normally considered by the 
Commission, and the BPI in question was in a cover letter to a 
questionnaire response that was not clearly labeled as containing BPI. 
The Commission issued private letters of reprimand because of the 
aggravating circumstances that the attorneys' client discovered the 
breach and that the two executives who were not signatories to the APO 
actually read the BPI.
    Case 24: A law firm and a consulting firm failed to return or 
destroy BPI released under an APO and to file certificates of return or 
destruction within the 60-day time limit after the Commission published 
its final determination in the Federal Register. The Secretary noticed 
the breach when the lead attorney sent a certificate of return or 
destruction signed by an attorney who had left the firm. The 
Secretary's staff discovered that certificates of destruction or return 
had not been filed by most of the other signatories to the APO. The 
firm had only submitted certificates of return or destruction for 
people no longer with the firm.
    The lead attorney admitted that the firm had not returned or 
destroyed the APO materials. However, he argued that it was necessary 
to retain APO materials because the investigations were still subject 
to a judicial appeal of the Commission's final affirmative 
determination. He noted that the Department of Commerce had entered a 
suspension agreement with one of the firm's clients, which was being 
challenged at the Court of International Trade. He stated that if the 
Court reversed Commerce, Commerce would issue an antidumping order, and 
only at that point would the Commission's final determination be ripe 
for appeal.
    The Commission determined that the lead attorney breached the APO 
by failing to destroy or return BPI within 60 days after completion of 
the Commission investigations. In addition, the attorney failed to 
certify that to his knowledge and belief all copies of the BPI had been 
returned or destroyed and that no copies of the BPI had been made 
available to any person to whom disclosure was not specifically 
authorized. The Commission ordered the lead attorney and all other 
authorized applicants at the law firm and the consulting firm to comply 
with the APO within 14 days. The Commission did not find any other 
attorneys or members of the consulting firm to have breached the APO 
because they were complying with the lead attorney's decision to retain 
that APO materials.
    The Commission issued a private letter of reprimand to the lead 
attorney. As mitigating circumstances, the Commission considered that 
the lead attorney had no prior breaches and that he destroyed and 
certified the destruction of the APO materials once he received the 
Commission's instruction to destroy them. Furthermore, no unauthorized 
person gained access to the APO materials as a result of the breach. 
Finally, the lead attorney's law firm instituted a policy of seeking 
guidance in matters that attorneys find ambiguous instead of making a 
potentially incorrect independent decision regarding compliance with 
Commission APOs. As an aggravating factor, the Commission considered 
that the breach was not inadvertent. It was based on the lead 
attorney's decision to interpret the APO and decide how it should be 
applied in what he considered unique circumstances, without seeking 
guidance from the Commission.
    Case 25: A lead attorney filed a letter with the Commission 
Secretary challenging certain information contained in a respondent's 
revised questionnaire response and in the cover letter that accompanied 
the revised response. The respondent's cover letter was marked 
``PROPRIETARY DOCUMENT'' and in this letter the respondent's attorney 
requested proprietary treatment for that information and for the 
revised questionnaire response. No material in the respondent's cover 
letter or the response was bracketed. When the lead attorney filed his 
response, he sent a

[[Page 39434]]

confidential version of the letter to the Secretary and filed a public 
version. He also had the public version served on two non-signatories 
to the APO. One day after the lead attorney filed his letter, he 
realized that it might contain BPI. He notified the Secretary and filed 
and served revised copies of his letter.
    The Commission found that the lead attorney breached the APO 
because the ``public'' version of his letter contained BPI, he served 
the letter on two people who were not signatories to the APO, and he 
failed to bracket the same BPI in the confidential version of his 
letter. The Commission did not agree with his argument that if 
unbracketed BPI had appeared in his letter, it was the fault of the 
respondent and its attorneys because they did not bracket or otherwise 
identify the BPI in their cover letter and revised response. The 
Commission noted that a questionnaire response is not filed with the 
Secretary subject to requirements of rules 201.6(b)(3) and 207.3(c), 
which require among other things that BPI be bracketed. Furthermore, 
the instructions for responding to the questionnaire indicated that 
each response would be automatically treated as confidential, except to 
the extent that data in the response are publicly available or must be 
disclosed by law. The lead attorney did not establish the applicability 
of either of the exceptions. Therefore, the respondent was under no 
obligation specifically to mark or bracket BPI in the revised 
questionnaire response.
    The Commission issued a warning letter to the lead attorney. As 
mitigating factors, the Commission considered that the attorney did not 
act in bad faith, that this was the only breach in which he was 
involved within a period of time generally examined by the Commission 
for the purposes of determining sanctions, and that he took prompt 
action to correct the breach.
    Case 26: Three attorneys, a secretary, and a paralegal prepared a 
postconference brief on behalf of the petitioner. One day after the 
attorneys filed the confidential version of the brief, they filed 
replacement pages for the confidential brief, and pursuant to the 24-
hour rule, they filed the public version of the brief. The following 
workday, the Commission's Secretary notified the attorneys' law firm by 
telephone that several appendices in the public version of its brief 
contained unredacted BPI in brackets. The Secretary also noted that 
brackets had been removed from some of the petitioner's information in 
the replacement pages of the confidential brief, which was previously 
bracketed in the original pages of the confidential version of the 
brief and had been redacted from the public version of the brief.
    After the law firm received the Secretary's telephone call, it 
determined that some of the information that it failed to bracket in 
the replacement pages to the confidential brief belonged to its own 
client and could therefore be released as public information. The law 
firm also made revisions to the relevant pages of the public version of 
its brief and re-filed and re-served the revised pages. The law firm 
took several more steps to avoid dissemination of the unredacted 
information in the public version of the brief. It contacted lead 
counsel for each party to the investigation by telephone on the same 
day the Secretary called and requested that counsel retrieve the copies 
of the petitioner's postconference submissions. It prepared replacement 
pages that included additional bracketing on one page of its 
confidential brief, removed brackets from certain of its client's 
information in the confidential brief, and redacted bracketed 
information from the public version of its brief. The law firm also 
contacted the parties on the public service list to retrieve the pages 
that had contained unredacted BPI. The public service list in effect in 
these investigations at the time included only law firms that were 
approved for access to BPI under the APO. However, one of the law firms 
made copies of the public version of the brief and forwarded one copy 
to its client who was not a signatory to the APO. The information was 
not opened by the non-signatory and was returned to the law firm. The 
offending exhibit pages that were distributed to the other parties on 
the public service list were also returned to the law firm. The firm 
received assurances from the lead counsel of all of the parties on the 
public service list that no non-signatory had reviewed the BPI.
    The Commission found that, in two sections of the brief, the 
attorneys, the secretary, and the paralegal did not breach the APO in 
failing to bracket or redact BPI because the information at issue 
belonged to the parties that disclosed it. However, in another section, 
the Commission determined that the three attorneys breached the APO by 
failing to redact BPI from the public version that was filed with the 
Commission and served on parties on the public service list.
    The Commission issued warning letters to the three attorneys. As 
mitigating circumstances, the Commission considered that this was the 
only breach committed by the attorneys within the time period generally 
examined by the Commission for purposes of determining sanctions, that 
the breach was unintentional, that prompt action was taken to remedy 
the breach, and that the clients who were given the brief containing 
the BPI neither read nor made any copies of the BPI.
    The Commission decided to take no further action against the 
secretary or paralegal because they were responsible to and under the 
supervision of attorneys at all times.
    Case 27: One attorney and three legal assistants served a copy of 
corrections to a Commission staff report containing BPI as well as a 
prehearing brief containing BPI, on a law firm that had been removed 
from the APO service list. An attorney from another law firm who was a 
signatory to the APO notified the attorney serving the documents that 
one of the firms on the certificate of service attached to the 
prehearing brief had withdrawn from the APO. The next day, the attorney 
serving the documents contacted the law firm that was no longer on the 
APO list and retrieved the unopened pre-hearing brief. Later that day, 
the attorney noticed that the corrections, which were sent six days 
before the brief, had also been served to the law firm that had 
withdrawn from the APO. The attorney contacted the firm and learned 
that the corrections to the preliminary staff report had already been 
shredded without being opened. The attorney alerted the Secretary that 
day to what had transpired.
    One of the legal assistants prepared the service list that 
incorrectly included the law firm no longer on the APO service list for 
the corrections to the preliminary staff report. The legal assistant 
used the same service list for the prehearing brief. Both times he 
failed to check his list against the updated list available through the 
Commission's website. The same legal assistant arranged for the filing 
of the document with the Commission and for delivery of the service 
copies. The other two legal assistants simply served the documents on 
the recipients as instructed.
    The Commission issued a warning letter to the attorney for 
breaching the APO. The Commission has consistently taken the position 
that a breach of the APO occurs when BPI is made available to 
unauthorized persons, and that it is not necessary that those persons 
actually view the information. Specifically, the attorney breached the 
APO by providing a person whose law firm had been removed from the APO 
service list with copies of corrections to a Commission staff report 
containing BPI and with a pre-hearing brief

[[Page 39435]]

containing BPI. The Commission also noted that the attorney was 
responsible for supervising the activities of the legal assistants who 
prepared and delivered the briefs because she signed the APO 
acknowledgment for clerical personnel, which she filed with the 
Commission. As mitigating circumstances, the Commission considered that 
this was the only breach for the attorney within the period generally 
examined by the Commission, that the breach was unintentional, that 
prompt action was taken to remedy the breach, and that no unauthorized 
person opened the packages containing the BPI.
    The Commission determined that the legal assistant who prepared the 
erroneous service list had breached the APO and issued a warning letter 
to him. As mitigating circumstances, the Commission considered that 
this was the only breach for the legal assistant within the period 
generally examined by the Commission, that the breach was 
unintentional, that prompt action was taken to remedy the breach, and 
that no unauthorized person opened the packages containing the BPI.
    The Commission found that the two legal assistants who served the 
documents did not breach the APO.
    Case 28: Four attorneys filed the public version of a posthearing 
brief, which included an exhibit that contained BPI. The Commission 
found that one of the attorneys and her secretary breached the APO by 
failing to redact the BPI. The secretary ``whited-out'' the BPI 
electronically on her computer. She then reviewed the exhibits, both on 
the computer screen and as printed pages, to make sure she had redacted 
all BPI. Another attorney then reviewed the brief before the attorney 
who breached the APO made a final review and found all BPI had been 
redacted. Eleven days later one of the attorneys discovered the un-
redacted BPI in the exhibit and notified the Commission Secretary. The 
attorney then redacted the BPI from the exhibit and served a 
replacement page on all relevant parties.
    The Commission found that three of the attorneys did not breach the 
APO because they did not participate in the preparation or review of 
the exhibits in the public version of the brief. However, it initiated 
an additional investigation, which was still pending when this case was 
decided, after it discovered that another attorney who was not a 
signatory to the APO helped in the preparation and filing of the brief.
    The Commission issued a private letter of reprimand to one of the 
attorneys. As mitigating circumstances, the Commission considered that 
this was her first breach of an APO, that the breach was inadvertent, 
and that once she became aware of the breach she took prompt action to 
retrieve the pages containing the BPI. In deciding to issue a private 
letter of reprimand instead of a warning letter the Commission 
considered the aggravating circumstance that the non-redacted BPI was 
in the possession of a non-signatory for eleven days. Without evidence 
to the contrary, the Commission assumed that a non-signatory had 
reviewed the BPI because of the length of time it was in the non-
signatory's possession.
    The Commission issued a warning letter to the secretary. As 
mitigating circumstances, the Commission considered that this was the 
only breach of an APO in which she was involved within the period 
generally examined by the Commission, that the breach was 
unintentional, and that once her firm became aware of the breach it 
took prompt action to retrieve the pages containing the BPI. Although 
the Commission concluded that a non-signatory had reviewed the BPI, it 
recognized that she was under the direction and supervision of an 
attorney.
    Case 29: Three attorneys filed the public version of a 
postconference brief that contained bracketed but un-redacted BPI. A 
secretary assisted in the brief's preparation. The Secretary noticed 
the breach five days after it was filed and notified the firm. The firm 
took steps to retrieve the copies of the public version of the brief 
that it had served and distributed. The attorneys also filed a 
replacement page that no longer contained BPI. The Commission found 
that the attorney who had the primary responsibility for preparing the 
brief and the attorney who signed the brief breached the APO. The two 
attorneys reviewed the brief, but failed to redact the bracketed BPI. 
The Commission also determined that the secretary breached the APO 
because she failed to run properly the law firm's computer program that 
redacts bracketed information from a submission after the attorneys 
instructed her to redact the information. The Commission found that the 
third attorney did not breach the APO. She was not in the office on the 
day that the public version of the brief was filed, and she appeared to 
play no role in the preparation of the brief.
    The Commission issued warning letters to both attorneys. As 
mitigating factors, the Commission considered that the attorneys had no 
breaches within the time period generally examined by the Commission 
for the purpose of determining sanctions, that the breach was 
unintentional, that prompt action was taken to remedy the breach, and 
that no non-signatory of the APO actually read the document.
    The Commission issued a warning letter to the secretary who 
assisted in the brief's preparation at the instruction of her 
supervising attorneys. As mitigating factors, the Commission considered 
that the secretary had no prior breaches, that the breach was 
unintentional, that prompt action was taken to remedy the breach, and 
that no non-signatory of the APO actually read the document.
    Case 30: An economist, while under the supervision of an attorney, 
faxed the confidential version of a prehearing brief containing BPI to 
a client-association who was not a signatory to the APO. The client-
association subsequently faxed the confidential version to its 66 
members, who were also non-signatories, the following day. Two days 
after the fax was sent to the client, the attorney notified the 
Secretary and reported that he had contacted each of the persons to 
whom the brief had been distributed, informed them of the seriousness 
of the situation, and instructed them to destroy the brief. However, 
the attorney and economist did not account for several of the faxed 
copies.
    The Commission determined that both the attorney and the economist 
breached the APO by allowing unauthorized persons to view the BPI. The 
Commission sanctioned the attorney and the economist by issuing private 
letters of reprimand to both. As mitigating circumstances, the 
Commission considered that the breach was reported promptly after the 
attorney was advised that it had occurred, that prompt efforts were 
made to prevent further dissemination and to recall or destroy existing 
copies, that procedures were strengthened at the law firm to safeguard 
against future breaches, and that the attorney and the economist had no 
record of prior breaches. However, as aggravating circumstances the 
Commission considered that persons who were non-signatories to the APO 
actually read the BPI and that the attorney and economist did not 
account for all copies of the BPI that were sent by the client to its 
members.
    Case 31: Three attorneys failed to destroy BPI within the required 
60 days after the Commission made a final APO release. The lead 
attorney changed law firms and had the BPI covered under the APO 
transferred to his new law firm. The lead attorney's old law firm sent 
a letter to the Commission stating that they no longer represented the 
client, that the lead attorney continued to

[[Page 39436]]

represent the client, and that the APO material would remain with the 
lead attorney. Once at his new law firm, two other attorneys also 
signed the APO. Ten months after the Commission made a final APO 
release, the lead attorney stated that he learned that he should no 
longer possess the BPI after he spoke with an employee of the 
Commission about another matter. His client was appealing Department of 
Commerce findings and the lead attorney asserted that he believed that 
he was entitled to retain the BPI until the proceedings on the DOC 
appeal were completed. The other two attorneys never accessed the 
materials that had been released under the APO, but one of them 
reviewed a document drafted by the lead attorney, which contained BPI.
    The Commission determined that the three attorneys breached the APO 
by failing to destroy all copies of BPI disclosed under the APO within 
60 days of the completion of the Commission's investigation. The 
attorneys also failed to file a certificate attesting that to their 
knowledge and belief all copies of the BPI had been returned or 
destroyed, and that no copies of the BPI had been made available to any 
person to whom disclosure was not specifically authorized at the time 
they were required to return or destroy the BPI.
    The Commission issued warning letters to the three attorneys. As 
mitigating circumstances, the Commission considered that this was the 
only breach in which any of the attorneys had been involved within the 
period generally examined by the Commission for purposes of determining 
sanctions, that the breach was unintentional, and that prompt action 
was taken to remedy the breach once the Secretary advised them of a 
potential breach.
    Case 32: The Commission was notified by a lead attorney that an 
associate at his law firm had discovered the BPI version of a 
prehearing brief in a file not designated for APO materials and which 
was accessible by non-APO signatories. A second attorney at the law 
firm admitted to taking two copies of the prehearing brief, which 
contained BPI, into his possession, but could only account for having 
properly returned one of the copies to the law firm's APO filing room. 
No one at the firm knew how or when the document was placed in the non-
APO file or whether anyone not on the APO reviewed it. Immediately 
after the document was discovered, the attorneys had it numbered, 
stamped, and filed in the appropriate APO filing room.
    The Commission determined that both attorneys breached the APO. The 
Commission held the lead attorney responsible because he had the 
ultimate responsibility for the safe keeping of the APO materials 
entrusted to him. Despite that responsibility, he allowed a document 
containing BPI to be placed in a file accessible to persons not covered 
by the APO. The Commission also held the second attorney responsible 
because he lost track of a document containing BPI and possibly caused 
it to be placed in a file accessible to non-signatories of the APO.
    The Commission issued warning letters to both attorneys. As 
mitigating circumstances, it considered that both attorneys had no 
prior breaches in the period generally examined by the Commission for 
purposes of determining sanctions, that the breach was unintentional, 
and that prompt action was taken to remedy the breach in that the law 
firm changed its APO procedures and held a mandatory seminar for all 
personnel regarding APO materials. The Commission noted that, although 
it issued warning letters, issuance of a private letter of reprimand 
was possible if a non-signatory had actually read the BPI. However, the 
Commission considered it significant that the non-signatories that had 
access to the BPI were employees of the law firm and likely did not 
divulge the information to anyone outside the firm.
    Case 33: An attorney filed the public version of an opposition to a 
motion for modification of stay orders and a motion for sanctions with 
the U.S. Court of Appeals for the Federal Circuit (``CAFC''). The 
document contained confidential business information (``CBI'') obtained 
pursuant to a Commission APO. Seven days after the attorney filed the 
document, opposing counsel sent a letter to the attorney and other 
interested counsel informing them of the potential breach. The attorney 
immediately asked the CAFC to place the original opposition under seal 
and filed a revised public version of his opposition four days after 
the date of opposing counsel's notification letter. The Commission 
determined that the information in question was not publicly available, 
as argued by the attorney, and that the attorney had breached the APO.
    The Commission issued a warning letter to the attorney. As 
mitigating factors, the Commission considered that he had no prior APO 
breaches, that the breach was unintentional, that prompt action was 
taken to remedy the breach, and that no non-signatory to the APO 
actually read the document
    Case 34: A law firm served the first-day BPI verison of its post-
conference brief on another law firm that was not a signatory to the 
Commission's APO. The same day an attorney at the non-signatory firm 
called the law firm and stated that he had been improperly served with 
the BPI version of the brief. This attorney did not view the BPI and 
the first law firm retrieved the brief later in the day. Two days later 
the first law firm sent a letter to the Commission regarding the 
incident.
    Several attorneys and consultants were involved in preparation of 
the post-conference brief, but not all of them had direct involvement 
in filing and serving the brief. Five project assistants were 
responsible for the filing and service of the brief.
    The Commission determined that the APO had been breached because 
BPI was provided to unauthorized persons. The Commission found that all 
five project assistants, the attorney in charge of supervising the 
project assistants, and a consultant who signed the certificate of 
service breached the APO, but that the lead attorney did not breach the 
APO.
    The Commission found that the project assistants breached the APO 
because they improperly labeled one of the post-conference briefs, 
which was sent to a non-signatory of the APO. The attorney in charge of 
the project assistants breached the APO because he undertook in the APO 
application to supervise clerical employees, which he failed to do and 
this failure resulted in the service of BPI on a non-signatory to the 
APO. The consultant who signed the certificate of service breached the 
APO because, although the certificate he signed included only those 
firms that were entitled to receive BPI under the APO, he should have 
ensured that the copies to be served were labeled properly. Finally, 
the Commission found that the lead attorney did not breach the APO 
because in the APO application he delegated the responsibility of 
supervising clerical employees to another attorney, and the Commission 
found that this delegation was reasonable in light of the supervising 
attorney's regular practice before the Commission.
    The Commission issued warning letters to the five project 
assistants, the attorney in charge of supervising clerical personnel, 
and the consultant who signed the certificate of service. As mitigating 
circumstances the Commission considered that the breach was 
unintentional, that prompt action was taken to remedy the breach, that 
the non-signatory who received the brief containing BPI did not view 
the document, that there were no prior breaches within the period 
generally examined by the Commission for

[[Page 39437]]

purposes of determining sanctions, and that the law firm revised its 
procedures regarding APOs in light of the breaches.
    Case 35: Three attorneys and a legal assistant were involved in the 
preparation of the public version of a prehearing brief. Twelve days 
after the public version of the brief was filed and served, the 
Secretary notified the law firm that it had failed to redact one item 
of bracketed BPI from a footnote in one of the exhibits. The public 
version of the brief, which contained unredacted BPI, was served on and 
possibly viewed by several non-signatories to the APO. The law firm 
immediately contacted all parties who had received the public version 
of the brief to arrange for the destruction or return of the offending 
page. Two days later the law firm filed a replacement page.
    The Commission found that two of the attorneys (one of counsel and 
the other an associate) breached the APO because the lead attorney had 
delegated the responsibility of preparing the brief, properly 
bracketing BPI, and redacting BPI from the public version to the two 
attorneys. The Commission found that the lead attorney did not breach 
the APO because she reasonably delegated the responsibility of 
preparing and reviewing the public verison of the brief to not one, but 
two, experienced attorneys. Furthermore, it was reasonable for the lead 
attorney to rely on their representations that the brief was ready for 
dissemination to the public when she signed the public version and had 
additional copies disseminated to other non-signatories. The Commission 
also found that the legal assistant did not breach the APO because at 
all times she acted under the direction and supervision of the two 
attorneys responsible for the brief.
    The Commission sanctioned both the associate and of counsel 
attorneys with a private letter of reprimand. As mitigating factors, it 
considered that the breach was unintentional, that corrective measures 
were taken immediately, that the law firm followed its internal APO 
procedures that were in place before the breach, that these procedures 
were further strengthened after the breach, and that both attorneys 
voluntarily led a training session on the revised procedures for other 
attorneys and staff. The of counsel attorney also had no prior breaches 
in the period generally considered significant by the Commission for 
the purposes of determining sanctions. As aggravating circumstances, 
the Commission considered the fact that the Secretary and not the law 
firm found the unredacted BPI in the public version of the brief, that 
it appeared that the BPI was viewed by the non-signatories who received 
it, that the unredacted BPI revealed involved information from one of 
two importers when the Commission's staff report did not even reveal 
aggregate quantities for such importers because only two parties' 
information was involved. The associate attorney had one prior breach 
in the period generally examined by the Commission for the purposes of 
determining sanctions, which served as another aggravating factor for 
him. When the Commission sanctions someone in the associate's 
situation, it normally issues a private letter of reprimand, usually 
including additional requirements or prohibitions. However, the 
Commission issued only a private letter of reprimand to the associate 
because he voluntarily conducted a training session on the firm's APO 
procedures for other attorneys and staff.
    Case 36: A law firm prepared the APO version of a prehearing brief 
containing BPI to be filed and served, but in the process of serving 
the brief, one copy was lost for 11 days. The law firm waited seven 
days before notifying the Commission of the missing brief. On the day 
the brief was lost, an associate with the firm went through several 
steps to make sure that all 14 copies of the brief were properly 
labeled for service. After she completed this process with the 
assistance of others, she arranged for a clerical worker and a legal 
assistant, who were both signatories to the APO, to hand carry the 
briefs to the Commission together to ensure that they were properly 
filed before the clerical worker delivered the service copies. The two 
employees took a taxicab to the Commission. After they filed the 
appropriate number of copies with the Commission, the legal assistant 
noticed that one of the copies was missing. The two employees presumed 
that they left the missing copy in the taxicab, but after contacting 
the cab company, the D.C. Cab Commission, and offering a $500 reward, 
the missing brief did not reappear. Eleven days after the two employees 
lost the envelope, it arrived at the law firm specified on its address 
label. The envelope was unopened.
    The Commission determined that the clerical worker and the legal 
assistant breached the APO because the service copy of the APO version 
of the prehearing brief was missing for 11 days and was only eventually 
delivered to the correct APO recipient by an unknown person, possibly 
the cab driver who was a non-signatory to the APO. The Commission has 
consistently taken the position that it is a breach of an APO to make 
BPI available to an unauthorized person, and that it is not necessary 
for the non-signatory to view the BPI for a breach to occur. Generally, 
the Commission does not hold support staff responsible for breaches if 
they are under the direct supervision and control of another, but it 
found that the circumstances surrounding this incident warranted such a 
determination. The service copy was under their control when it 
disappeared, and the disappearance was directly related to their 
failure to safeguard all copies of the brief at all times.
    The Commission determined that the lead attorney in the 
investigations did not breach the APO. It found that he reasonably 
delegated the responsibility of filing and serving the APO version of 
the brief to the associate who had worked in the firm's international 
trade practice for approximately two years, who had no prior APO 
breaches, and who took a number of steps to ensure that the document 
containing BPI received under the APO was properly served.
    The Commission found that the associate did not breach the APO, 
notwithstanding the fact that she had been delegated the responsibility 
of filing and serving the APO version of the brief in compliance with 
the APO requirements. The associate was very involved in the 
preparation of the brief for filing and service and appeared to have 
been very diligent in checking and double-checking the number of 
copies, the packaging of the copies, and the potential recipients to 
ensure proper delivery and compliance with the APO. The associate 
arranged for two people to hand deliver the filings to the Commission, 
both of whom had made similar filings on many prior occasions and 
neither of whom had previously breached an APO. The Commission 
therefore found that the associate reasonably delegated the 
responsibility for physically delivering the filing and service copies. 
The Commission noted that the only way the associate might have 
prevented this breach would have been to deliver the filing and service 
copies herself, which would be unreasonable. The Commission added that 
in rare circumstances such as these, this incident should not be 
included in the associate's file or be held against her in any future 
cases.
    The Commission decided to issue warning letters to the clerical 
worker and the legal assistant. As mitigating factors, it considered 
that this was the only breach the two had committed within the period 
generally examined by the Commission for purposes of determining 
sanctions, that the breach was unintentional, that prompt action was 
taken to remedy the breach, and

[[Page 39438]]

that the unknown person who eventually delivered the service copy did 
not open the envelope and read the BPI. One aggravating factor was that 
the missing service copy was not reported to the Commission until seven 
days after it was missing.

IV. Investigations in Which No Breach Was Found

    During 2001, the Commission completed six additional investigations 
in which no breach was found. One investigation was not completed, but 
was withdrawn by the Office of General Counsel, because the revealed 
information was not treated as BPI by the Commission. The reasons for a 
finding by the Commission of no breach included:

    (1) The information disclosed at the hearing was sufficiently 
changed to make it no longer confidential;
    (2) The information revealed was publicly available;
    (3) The suppliers of the BPI had consented to the use of the 
information in U.S. District Court litigation and, therefore, 
providing BPI to the district court judge for in camera inspection 
was not a breach;
    (4) The information was not BPI because it was a general 
description of the channels of distribution;
    (5) The information revealed was hypothetical and therefore not 
BPI; and
    (6) The Commission did not treat the information as BPI in its 
staff report.


    Issued June 4, 2002.

    By order of the Commission.
Marilyn R. Abbott,
Secretary.
[FR Doc. 02-14386 Filed 6-6-02; 8:45 am]
BILLING CODE 7020-02-P