[Federal Register Volume 68, Number 100 (Friday, May 23, 2003)]
[Notices]
[Pages 28256-28263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12935]


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INTERNATIONAL TRADE COMMISSION


Summary of Commission Practice Relating to Administrative 
Protective Orders

AGENCY: International Trade Commission.

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

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SUMMARY: Since February 1991, the U.S. International Trade Commission 
(``Commission'') has issued an annual report on the status of its 
practice with respect to violations of its administrative protective 
orders (``APOs'') in investigations under Title VII of the Tariff Act 
of 1930 in response to a direction contained in the Conference Report 
to the Customs and

[[Page 28257]]

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 2002. 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 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 (Title VII) or confidential 
business information (``CBI'') (sections 201-204 and section 337) 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 2002.
    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); 67 FR 39425 (June 7, 2002). 
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. L. 
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 2001, 
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 an 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 also 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 judicial or binational panel review of such 
Commission investigation;
    (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 each 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 an APO 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;

[[Page 28258]]

    (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 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 an APO 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, ``[T]he 
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 has found that the electronic 
transmission of a public document containing BPI in a recoverable form 
was a breach of the APO.

[[Page 28259]]

    The Commission advised in the preamble to the notice of proposed 
rulemaking in 1990 that it will permit authorized applicants a certain 
amount of discretion in choosing the most appropriate method of 
safeguarding the confidentiality of the BPI. However, the Commission 
cautioned authorized applicants that they would be held responsible for 
safeguarding the confidentiality of all BPI to which they are granted 
access and warned applicants about the potential hazards of storage on 
hard disk. The caution in that preamble is restated here:

[T]he Commission suggests that certain safeguards would seem to be 
particularly useful. When storing business proprietary information 
on computer disks, for example, storage on floppy disks rather than 
hard disks is recommended, because deletion of information from a 
hard disk does not necessarily erase the information, which can 
often be retrieved using a utilities program. 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, 24103 (June 14, 1990).

    In 2002, the Commission completed two 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 1 and 5). In these cases and four others in 2001, 
the firm and the person using the BPI mistakenly believed an APO 
application had been filed for that person. The Commission determined 
in all these 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 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 his or her APO status before obtaining access to and using the 
BPI. In all but one case, 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 2002, the Commission found the lead attorney to be 
responsible for breaches in at least four cases where he or she failed 
to provide adequate supervision over the handling of BPI. (Cases 1, 3, 
9, and 10). 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. The 
Commission has found that a lead attorney did not violate the APO in 
cases where his delegation of authority was reasonable.

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: Four attorneys were investigated for a breach involving the 
release of BPI to an attorney in the firm who was not a signatory to 
the APO. The attorneys who were involved in the Commission 
investigation assumed that they all had been included on the APO and 
shared the APO materials with each other. However, one of these 
attorneys, an associate, had not been included on the APO. The lead 
attorney was found to have breached the APO because he failed to 
provide adequate supervision over the handling of BPI and permitted the 
release of BPI to an associate in his firm who was not a signatory to 
the APO. The other attorneys were found to have breached because they 
provided the non-signatory with BPI to use in a Commission 
investigation. The fourth attorney did not breach the APO because he 
was a non-signatory, but the Commission determined that his actions 
were sufficient to demonstrate good cause for the imposition of 
sanctions under 19 CFR 201.15. He was not a signatory to the APO when 
he reviewed BPI contained in documents received under the APO and 
utilized the BPI in the preparation of a brief in the Commission 
investigation.
    The three attorneys who breached the APO were issued warning 
letters. This was their first breach of an APO involving a section 
201.15 violation. The attorney who was a non-signatory was issued a 
private letter of reprimand. Although this was his first violation 
under section 201.15, he had helped to cause a breach of the APO in a 
previous matter by failing to redact BPI from the public version of a 
brief filed in the Commission investigation. This breach had been 
previously investigated and reported. In that APOB investigation, the 
Commission found that there was sufficient information to suggest that 
a non-signatory outside the firm viewed the BPI.
    Case 2: The Commission determined that an attorney, an APO 
coordinator, and a legal secretary breached the APO. The APO 
coordinator, who was a senior legal secretary, gave another legal 
secretary an attorney's edits to a draft brief and provided 
instructions regarding redaction of the CBI from brackets and the 
subsequent faxing of the draft brief to clients. The legal secretary 
did not remove all the CBI from the brackets because she believed it 
was the clients' information. She also did not have an attorney review 
the document, as required by the firm's procedures, after she made the 
edits and before she faxed the document to the clients. In the 
affidavits provided by the firm in this APOB investigation, there was a 
dispute between the legal secretary and the rest of the firm as to 
whether the legal secretary had received adequate instructions from the 
APO coordinator regarding the handling of the CBI. One of the attorneys 
working on the brief also recalled instructing the legal secretary to 
remove all the CBI from the brackets because the information had been 
generated by multiple clients.
    In defending against the breach allegations, the firm raised issues 
about whether the information was CBI. The Commission considered each 
of the arguments and determined that CBI had been released.
    In spite of the dispute over instructions given to the legal 
secretary, the Commission determined that she had breached the APO. In 
addition, the Commission determined that the APO coordinator and the 
attorney who made the edits to the brief, and who was also the lead 
attorney and managing partner in the firm, breached the APO for failure 
to provide adequate supervision over the legal secretary.
    The Commission issued private letters of reprimand to all three 
persons, after considering that persons who were non-signatories to the 
APO actually read the

[[Page 28260]]

CBI. The Commission considered the mitigating circumstances that the 
firm had reported the breach promptly, took immediate steps to minimize 
the effect of the breach, and strengthened procedures to prevent future 
breaches. In addition, none of the persons found to have breached had a 
record of prior breaches.
    Case 3: The Commission determined that two attorneys breached the 
APO when one of them sent copies of the Commission's confidential views 
to executives of the law firm's clients with an attached cover 
memorandum that had been drafted by one attorney and signed by the 
firm's lead attorney. In determining that the lead attorney breached 
the APO, the Commission considered the fact that the lead attorney had 
overall responsibility for APO matters. The Commission issued private 
letters of reprimand to both attorneys, even though it was both 
attorneys' first breach, because of the serious nature of the breach. 
The Commission noted that the confidential brief had been in the 
possession of the clients for seven days before the breach was 
discovered and that two of the clients read the BPI.
    Case 4: The Commission investigated whether two attorneys had 
breached the APO. The lead attorney had asked at the Commission hearing 
if the confidential record from a prior investigation could be 
incorporated into the confidential record of the subject investigation. 
The Commission had not yet determined whether to allow the prior record 
to be used when the attorney used the BPI from the previous 
investigation by referencing it to support arguments in his post-
hearing brief. The Commission determined that the lead attorney 
breached the APO by including arguments in his post-hearing brief that 
referenced and compared BPI in the previous investigation with BPI in 
the subject investigation. The Commission found a breach even though 
the BPI was not actually disclosed to non-signatories to the APO.
    The Commission noted that it had not found that the attorney 
breached the APO by making arguments using public information, by 
asking the Commission to include BPI from one investigation in the 
confidential record of another investigation, or by asking the 
Commission in the subject investigation to consider issues already 
discussed in the confidential prehearing staff report of the subject 
investigation.
    The Commission decided to issue a warning letter after considering 
that this was the only breach in which the attorney had been involved 
within the two year period prior to the breach, his prompt action to 
remedy the breach, and the fact there had been no disclosure of BPI to 
persons not already under the APO. The Commission also noted that the 
attorney might not have realized that comparing BPI from two different 
investigations, and referencing without disclosing BPI from a separate 
investigation, could trigger an APO violation.
    The Commission decided the second attorney did not breach the APO 
because the lead attorney had clearly stated that the decision to put 
the arguments in the post-hearing brief was his alone.
    Case 5: The Commission investigated a breach involving the use of 
CBI by one attorney in a firm who was not a signatory to the APO. The 
lead attorney for the firm in the Commission investigation assigned an 
associate to the investigation and gave him access to CBI. Both 
attorneys thought the associate was a signatory to the APO. The 
Commission found that the lead attorney breached the APO by assigning 
the associate to handle CBI when he was not a signatory to the APO. The 
Commission also found that the lead attorney failed adequately to 
supervise the handling of CBI. The Commission found that the associate 
did not breach the APO because he was not a signatory. However, the 
Commission found there was good cause to caution the associate pursuant 
to 19 CFR 201.15(a).
    The Commission issued warning letters to both attorneys. The 
mitigating circumstances considered by the Commission that led to 
warning letters included the facts that the breach was unintentional, 
that there were no prior breaches or allegations of violations under 
section 201.15 for either attorney within the prior two year period, 
that the attorneys immediately notified the Commission of the breach 
once they discovered it, that they took action to prevent further 
breaches, that the associate protected the CBI as if he had been a 
signatory, and that the firm immediately sought APO access to the CBI 
for the associate as soon as the breach was discovered.
    Case 6: The Commission determined that two attorneys and a records 
administrator in a law firm breached the APO for failing to return or 
destroy a document containing BPI within the time required by the APO 
and for falsely certifying that it had been destroyed. When searching 
in an archives file to retrieve documents for litigation purposes, one 
of the attorneys discovered a copy of a post-hearing brief that had not 
been returned or destroyed with the rest of the APO material obtained 
in a Commission investigation. The Commission found that both during 
and after the Commission investigation, that attorney and the records 
administrator failed to assure that the document in question was filed 
and stored in a manner and place that was inaccessible to persons 
unauthorized to review APO material, as required by 19 CFR 207.7(b)(1) 
and (4).
    The Commission found that the senior attorney in the firm committed 
a breach because a document containing BPI was not filed properly or 
destroyed at the conclusion of the Commission investigation. The 
Commission noted that as head of his firm the senior attorney was 
responsible for establishing adequate procedures to assure that 
documents containing BPI are handled, maintained, and destroyed in a 
manner consistent with the Commission's APO regulations.
    The Commission issued warning letters to the two attorneys and the 
records administrator. It considered the mitigating factors that the 
breach was unintentional, that prompt action was taken to report and 
remedy the breach, that no unauthorized person accessed the document, 
and, with regard to the first attorney and the records administrator, 
that this was their first breach. The senior attorney was found to have 
breached under similar circumstances in the previous year, but the 
Commission declined to issue a sanction because the current breach 
occurred prior to the one for which he had already received a warning 
letter and he had instituted new procedures at the firm to avoid future 
breaches as a result of the previous year's APOB investigation.
    Case 7: The Commission determined that three attorneys breached an 
APO by failing to redact BPI from one page of the public version of 
their prehearing brief. The three attorneys were mid-level associates 
and were solely responsible for preparing the public version of the 
brief. The brief was filed with the Commission and served on the 
parties on the public service list including a non-signatory. The brief 
was also sent to several clients who were not signatories.
    The Commission determined that three other attorneys whose names 
were on the brief did not breach. None of these attorneys participated 
in the preparation of the public version of the brief. In addition, the 
Commission found that the lead attorney did not breach because he had 
reasonably delegated the task of preparing the public version of the 
brief to three experienced associates. None of these associates had 
previously breached an APO.

[[Page 28261]]

    The Commission issued private letters of reprimand to the three 
associates after considering the aggravating circumstances that the 
Secretary's Office and not the law firm discovered the breach; that the 
breach was not discovered until 19 days after the brief had been filed 
and served; and that the BPI may have been read by one or more non-
signatories to the APO. The Commission noted that, although the 
attorneys stated that no recipients of the brief informed their firm 
that they had read, copied, or transmitted the public version of the 
brief, it was not clear that non-signatories did not review the BPI.
    In reaching its decision to issue private letters of reprimand, the 
Commission also considered the mitigating circumstances that the breach 
was unintentional, that corrective measures were taken immediately 
after the breach was discovered, that there were internal APO 
procedures before the breach that were followed, and that these 
procedures were strengthened after the breach.
    Case 8: The Commission determined that two attorneys breached the 
APO by e-mailing an electronic version of a public prehearing brief, 
which contained electronically masked but recoverable CBI, to their 
clients and to parties that had agreed to that type of service. 
Although the brief appeared to be a public document with CBI omitted 
from within the brackets, the deleted CBI was retrievable 
electronically. Both attorneys believed that they were e-mailing a 
document from which CBI was deleted and not retrievable.
    The Commission, deciding not to sanction the attorneys, sent them 
warning letters. The Commission reached that decision after giving 
consideration to the facts that this was the only breach in which 
either attorney had been involved within the prior two year period 
considered by the Commission in determining sanctions, that the breach 
was unintentional, that the breach was discovered by the attorneys, 
that there was no indication that anyone not on the APO viewed the CBI, 
that prompt action was taken to remedy the breach, and that new 
procedures had been established by the firm to avoid a similar APO 
violation in the future.
    Case 9: The Commission determined that a lead attorney breached the 
APO by failing to provide adequate supervision over his firm's 
personnel regarding the care of CBI. Another law firm had been added to 
the public service list late in an investigation. The clerical 
personnel in charge of serving documents manually created mailing 
labels for the firm rather than creating computer generated labels that 
were segregated between public and APO lists. The secretary who typed 
the labels mistakenly typed them for service of APO materials. The 
newly added firm received APO materials for two days. The outer 
envelopes were opened but the inner envelopes remained sealed and were 
returned to the original law firm.
    Upon inquiry, the law firm was unable to provide the Commission 
with the name of the person responsible for the mislabeling. However, 
the Commission did determine that the lead attorney was responsible for 
the breach. He had signed the APO application for the clerical 
personnel indicating he was responsible for their compliance with APO 
requirements.
    The Commission issued a warning letter to the lead attorney after 
considering that the breach was unintentional, that his firm took 
immediate steps to reeducate its personnel regarding the proper 
handling of CBI, that non-signatories had not reviewed the BPI, and 
that the lead attorney had not breached an APO within a prior two year 
period considered by the Commission in determining an appropriate 
sanction.
    Case 10: The Commission considered whether two attorneys and one 
clerical employee breached the APO. The breach occurred when a clerical 
employee served a law firm with the BPI version of a post-conference 
brief although the firm was not a signatory to the Commission's APO. 
The recipient firm notified the law firm that the package was opened, 
but the brief was viewed only to the extent of determining that it was 
a document containing BPI covered by the Commission's APO, not 
Commerce's APO, to which the firm was a signatory. The Commission 
determined that, in addition to the clerical employee, the attorney 
supervising the clerical employees and the lead attorney in the 
investigation were both responsible for the breach.
    In a previous APOB investigation concerning the same Commission 
investigation, the Commission had found that five clerical employees, 
including the one responsible for this breach, and the same attorney 
who supervised the clerical employees in the investigations had 
breached the APO. Warning letters were issued at that time. The 
Commission did not find that the lead attorney had breached because he 
had reasonably delegated the responsibility of supervising the clerical 
employees to an experienced attorney who had no prior violations.
    In the current APOB investigation, the Commission determined that 
the lead attorney was responsible for the breach because he was aware 
that both the supervising attorney and the clerical employee had 
previously breached the APO. Since the lead attorney had recently 
received a private letter of reprimand in a different breach 
investigation, the Commission issued a private letter of reprimand to 
the lead attorney with a requirement that he update the firm's APO 
procedures and conduct a training session for attorneys and staff 
involved in APO practice in his firm. The supervising attorney and the 
clerical employee both received private letters of reprimand. The 
Commission considered the unintentional nature of the breach, the fact 
that corrective measures were immediately taken to retrieve the 
document from the non-signatory law firm and to remove the project 
assistant from the APO, the immediate reporting of the incident to the 
Commission, and that no non-signatory viewed the BPI as mitigating 
circumstances and the prior breaches of both attorneys and the clerical 
employee as an aggravating circumstance.
    Case 11: The Commission determined that two attorneys and a legal 
secretary breached the APO. An associate attorney and the secretary 
worked together to prepare the public version of a draft post-
conference brief. The attorney e-mailed the brief in an electronic form 
that masked the BPI. However, one footnote contained unredacted BPI. 
The Microsoft Word macro that was used to mask BPI in the brief did not 
mask BPI in the footnotes. The secretary missed the BPI in one of the 
footnotes when she did a manual review of the brief before the attorney 
e-mailed it to eight clients. The attorney did not check the brief to 
be sure all BPI was masked before he e-mailed the document. The 
information provided in the APOB investigation indicated that the 
persons involved in the breach did not know that the BPI was 
recoverable by the recipients of the e-mail.
    When the lead attorney who had been out of the office while the 
public brief was prepared and transmitted to the client returned, he 
reviewed the brief and discovered that one of the footnotes contained 
unmasked BPI. The associate attorney was directed to take immediate 
action to contact the Commission, to inform the recipients of the draft 
brief to destroy all paper and electronic versions of it, and to 
prepare a revised electronic brief with masked BPI and e-mail that to 
the same clients.
    The Commission found that the lead secretary breached the APO by 
failing to

[[Page 28262]]

redact BPI from the draft public brief which resulted in possession of 
the BPI by several non-signatories, including one who actually viewed 
the BPI. The Commission issued a warning letter to the secretary rather 
than a private letter of reprimand largely because she, as a clerical 
employee, was under the direct supervision of an attorney at the time 
of the breach. In addition, this was her first breach, the breach was 
unintentional, prompt action was taken to remedy the breach, and 
actions were taken by the firm to improve APO compliance procedures.
    The Commission found that the lead attorney breached the APO 
because the associate attorney had e-mailed two versions of the public 
draft brief with masked but recoverable BPI. The Commission noted that 
the information provided in this APOB investigation indicated that it 
was the law firm's practice to e-mail public versions of documents 
containing masked but recoverable BPI to its clients. Further, although 
the first electronic brief had been retrieved or destroyed, there was 
no indication in the record that anyone had attempted to retrieve or 
destroy the electronic copies of the revised draft brief sent to the 
eight non-signatory clients. Consequently, the masked BPI in those 
electronic copies had evidently remained unprotected for at least nine 
months, and at risk of disclosure to APO non-signatories. The 
Commission determined that the lead attorney was not responsible for 
the breach involving BPI remaining visible in the one footnote as his 
delegation of the preparation of the public version of a brief to a 
mid-level associate was reasonable. However, the Commission issued the 
lead attorney a private letter of reprimand because of the serious 
problem raised by e-mailing electronic documents containing masked but 
retrievable BPI. The lead attorney had no prior breaches.
    The associate attorney was also given a private letter of 
reprimand. The Commission reached its decision to sanction the 
associate after giving consideration to the existence of several 
mitigating factors with respect to the unredacted BPI, including the 
unintentional nature of the breach, the fact that corrective measures 
were immediately taken, the breach was reported to the Secretary's 
Office the following day, and certain procedures at the law firm were 
strengthened to prevent future breaches. The Commission noted that, 
with respect to the breach involving masked but recoverable BPI in both 
versions of the electronic brief, the breach was inadvertent. The 
Commission also considered the fact this was the associate's first 
breach. A sanction was warranted, however, because a non-signatory 
viewed the unredacted BPI in the footnote in the first draft brief. 
Moreover, the Commission and not the law firm identified the breach 
involving the masked but recoverable BPI. Finally, there was no 
information on the record suggesting that anyone in the law firm had 
attempted to prevent disclosure to unauthorized persons of recoverable 
BPI contained in the revised draft brief.
    Case 12: The Commission determined that three attorneys breached 
the APO. All three attorneys, who were from two different firms, had 
been responsible for preparing the public version of a joint brief in 
which not all BPI received under the APO had been redacted. After the 
public brief was completed, one of the firms sent copies to two of its 
clients where one office at each of the companies viewed the brief with 
the unredacted BPI. The Commission issued two of the attorneys private 
letters of reprimand and the third attorney received a private letter 
of reprimand with the additional requirement that he conduct an APO 
compliance seminar at his firm. This was the first breach for the first 
two attorneys, but the third attorney had breached another APO within 
two years of the occurrence of this breach. In issuing these sanctions, 
the Commission considered that BPI was viewed by non-signatories to the 
APO, and also considered the mitigating circumstances that the breach 
was unintentional; that corrective measures were taken immediately; 
that internal APO procedures existed before the breach and they had 
been followed; and that these procedures were strengthened.
    A fourth attorney initially was found by the Commission to have 
breached the APO. His involvement with the preparation of the public 
brief had been solely to check the adequacy of the bracketing in the 
confidential version. He had delegated preparation of the public 
version to an attorney in his firm who was an experienced trade lawyer. 
The fourth attorney had sent the public brief to his clients not 
knowing that it contained unredacted BPI. During the sanctions phase of 
the APOB investigation, the fourth attorney cited a Commission summary 
of an APOB investigation completed in 2001 which had not been published 
during the breach phase of the current APOB investigation. The attorney 
argued that, since the facts contained in the summary were very similar 
to his circumstances and, in that case, the supervising attorney was 
found not to have breached, the Commission should reconsider and 
reverse its decision that he had breached the APO. Based on these new 
arguments that had not been available to the attorney earlier, the 
Commission reconsidered and reversed its previous decision that he had 
breached.
    Case 13: The Commission determined that a lead economic consultant 
breached the APO by failing to return or destroy confidential documents 
and certify that the documents were returned or destroyed within 60 
days after the Commission's publication of its final remedy 
determination in the Federal Register. The Commission issued a warning 
letter to the lead consultant, while determining that other consultants 
in his firm were not responsible for the breach of the APO. The 
Commission, in reaching its determination, considered that this was the 
only breach in which the consultant had been involved within a two year 
period examined by the Commission for purposes of determining 
sanctions; that the consultant and other employees who were signatories 
to the APO executed and filed certificates of return or destruction of 
CBI materials less than one month after the deadline; that there was no 
indication in the record that any non-signatory had access to the CBI 
in question; and that the consultant's firm had implemented, pursuant 
to requirements imposed by litigation in which it was involved, a 
strict document retention policy which required various approvals 
before documents could be destroyed.
    Case 14: The Commission determined that one attorney breached the 
APO when he filed a public version of a prehearing brief containing 
BPI. The BPI, the name of a business that was the source of a lost 
revenue allegation, had been contained in the confidential staff report 
at an earlier phase of the investigation. That report bracketed the 
name of a business in all but one place. The name of the business was 
deleted from the public version of the report in all locations. The 
attorney argued that he didn't breach the APO because the information 
was publicly available, since it was not consistently bracketed in the 
staff report. In response, the Commission noted that the confidential 
staff report was distributed only to parties who were signatories to 
the APO and was not distributed to the public. The public version of 
the staff report was distributed to the public, but it did not reveal 
the identify of the source of the lost revenue allegation. The attorney 
also argued that the information in question theoretically could have 
been obtained from public sources, i.e., from information contained in 
public files for

[[Page 28263]]

litigation to which his client was a party. The Commission determined 
that the ``theoretical'' availability of information through public 
sources cannot justify the use of BPI obtained through the APO. 
Finally, the attorney argued that counsel for the person who previously 
owned the company from which the information had been received did not 
object to disclosures of ``historical information'' about the firm. 
Nevertheless, the Commission noted that the company had not waived 
confidential treatment for the questionnaires it submitted to the 
Commission which contained the information in question.
    There were several aggravating factors in the investigation. The 
breach was discovered by the Commission, the attorney did not act 
promptly to cure the breach, and the brief had been distributed to a 
non-signatory who retained the document for almost three weeks. 
Nonetheless, the Commission issued a warning letter to the attorney. In 
deciding not to issue sanctions, the Commission considered the fact 
that this was the attorney's first breach and that he failed to redact 
the BPI is good faith after relying on the incomplete bracketing in the 
confidential staff report.
    Case 15: The Commission investigated whether two attorneys breached 
the APO in an investigation by serving on other counsel a document that 
indicated on its face it did not contain CBI but did in fact contain 
CBI. The Commission determined that the attorneys breached the APO and 
issued a warning letter to them. The Commission considered the 
mitigating factors that the release was inadvertent, that there was no 
actual dissemination of CBI to non-signatories to the APO, and that 
immediate steps were taken to remedy the situation once counsel became 
aware of the breach. In addition, the attorneys implemented new 
procedures regarding preparation of non-proprietary submissions in 
order to prevent future breaches.

IV. Investigations in Which No Breach Was Found

    During 2002, four additional APO breach investigations were 
initiated. In one investigation the Commission determined that no 
breach had occurred. In the other three, the investigations were closed 
administratively. The reasons that the investigations were closed or 
that there was a ``no breach'' determination included that: (1) The 
breach concerned a judicial protective order, not a Commission APO; (2) 
the information at issue that ordinarily would be entitled to treatment 
as BPI was not consistently treated as such in the public record 
including by persons entitled to claim it was BPI; (3) testimony at a 
hearing did not reveal BPI because the information in question had been 
previously revealed on the public record; and (4) while information 
that was revealed in an attachment to a document filed with the 
Commission might have been proprietary under the terms of an agreement 
connected with outside litigation, the information was not obtained 
under the APO and, therefore, its disclosure could not constitute a 
breach of the APO.

    By order of the Commission.

    Issued: May 19, 2003.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 03-12935 Filed 5-22-03; 8:45 am]
BILLING CODE 7020-02-P