[Federal Register Volume 69, Number 102 (Wednesday, May 26, 2004)]
[Notices]
[Pages 29972-29978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11862]


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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 those under 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 proceedings under Title VII, 
sections 202 and 204 of the Trade Act of 1974, as amended, section 421 
of the Trade Agreements Act of 1974, as amended, and section 337 of the 
Tariff Act of 1930, as amended, completed during calendar year 2003. 
There was one completed investigation of a 24-hour rule violation 
during that period. The Commission intends that this report educate 
representatives of parties to Commission proceedings as to some 
specific types of APO breaches

[[Page 29973]]

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, as amended, section 421 of the Trade 
Agreements Act of 1974, as amended, 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, section 421 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 2003.
    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); 
68 FR 28256 (May 23, 2003). 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;
    (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

[[Page 29974]]

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.
    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.
    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

[[Page 29975]]

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).
    The Commission has recently disposed of an APOB investigation 
concerning a section 337 investigation. In that case, to be summarized 
with other cases completed in 2004, attorneys failed to notify the 
Commission about their receipt of a subpoena from another government 
agency that would require the disclosure of BPI obtained under the APO. 
Counsel in section 337 investigations are reminded that Commission rule 
210.34(d)(1) requires that the Commission be notified in writing 
immediately by anyone receiving such a subpoena or court or 
administrative order, discovery request, agreement, or other written 
request seeking disclosure to persons who are not permitted access to 
the information under either a Commission protective order or 
Commission rule 210.5(b). Commission rule 210.34(d)(2) provides that 
the Commission may impose sanctions upon any person who willfully fails 
to comply with section 210.34(d)(1). Failure to comply with that rule 
may also be considered an aggravating circumstance in determining an 
appropriate sanction for a breach connected with compliance with the 
subpoena or order.

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: The Commission determined that two attorneys breached the 
APO when one of the attorneys failed to delete BPI from the public 
version of a prehearing brief. The attorney who was responsible for 
preparing the public version of the brief and who failed to delete the 
BPI was the lead attorney and the firm's APO Compliance Officer. 
However, this was his first title VII investigation before the 
Commission. The second attorney, a name partner and more senior 
attorney in the firm, participated substantially in the investigation 
and participated in the drafting of the confidential version of the 
brief. The Commission found that the senior attorney had also breached 
the APO because, despite the more junior attorney's inexperience and 
the lengthy series of APO breaches that had been caused by various 
members of his firm, he did not participate in the preparation of the 
public brief and/or supervise the junior attorney more closely to 
prevent a new breach.
    Because he was the lead attorney and the firm's APO Compliance 
Officer, the Commission determined that the junior attorney would 
receive a private letter of reprimand, even though it was his first 
breach, no non-signatories had read the BPI, he took immediate 
corrective measures to cure the breach, and his firm changed its APO 
procedures to avoid future breaches of this type. Although the attorney 
claimed that his inexperience with bracketing BPI may have played a 
part in the errors, the Commission determined that he should be held to 
a higher standard of care because the purpose of his position as APO 
Compliance Officer was to prevent breaches like the one he failed to 
prevent in this matter. The Commission also considered the fact that 
the attorney took the APO Compliance position with the knowledge that 
several members of his firm had been investigated over a relatively 
short period of time for prior APO breaches, and that aggressive review 
of his firm's submissions was therefore necessary.
    The Commission determined to sanction the senior attorney by 
publishing in the Federal Register a public letter of reprimand and to 
suspend him for a period of six months from access to APO information 
in any Commission investigation. In addition, the Commission ordered 
that at least two attorneys review all documents to be filed with the 
Commission by his law firm for APO compliance for a period of five 
years from the date of publication of the sanction in the Federal 
Register. The Commission decided to issue the public letter of 
reprimand and suspend the attorney because this was his fourth breach 
within a relatively short period of time. In addition, the attorney had 
been publicly sanctioned within the past two years, but not suspended. 
The Commission found that although none of the attorney's prior 
breaches was egregious enough to warrant a public reprimand when 
considered separately, the public reprimand was warranted for the 
series of breaches that demonstrated a disturbing and unacceptable 
pattern of overall failure to safeguard information released under APO.
    Case 2: The Commission issued a private letter of reprimand to an 
attorney for failing to redact CBI from the public version of a 
prehearing brief. The brief was a joint brief with another law firm, 
but the Commission found that the attorney from the other law firm and 
a consultant and a second attorney from the breaching attorney's law 
firm were not responsible for the final review of the brief. A private 
letter of reprimand was issued even though this was the attorney's 
first breach of a Commission APO, the breach was inadvertent, the 
attorney's firm changed its APO procedures to avoid future breaches of 
this type, and the attorney took immediate corrective measures to cure 
the breach once he was informed that there was a possible breach. The 
Commission decided to issue a private letter of reprimand because the 
Commission received no assurance from the attorney that non-signatories 
had not read the CBI. The Commission sent the attorney two letters of 
inquiry and a letter seeking his comments on possible sanctions and 
mitigating circumstances. All of the letters asked for his comments on 
whether a non-signatory had read the CBI. The attorney did not address 
the question in the first or third letters; in the second letter he 
merely stated that he could not confirm with the recipients of the CBI 
that only APO signatories had viewed the CBI. The attorney never 
explained why he could not confirm the facts. The Commission noted that 
more than one firm which was a recipient of the brief were non-
signatories of the APO. Thus, without sufficient followup or 
explanation from the attorney and because CBI was made available to 
several non-signatories, the Commission presumed that the CBI was 
viewed by a non-signatory of the APO.
    Case 3: An economic consultant prepared and distributed an exhibit 
at a Commission hearing. The exhibit contained CBI that was taken from 
tables that were bracketed as confidential APO information in the 
Prehearing Staff Report. During the hearing, the consultant was 
informed of the possible breach and he took immediate steps to retrieve 
the exhibit.

[[Page 29976]]

All but one or two copies were retrieved. The consultant had argued 
that the information was not CBI because later in the investigation it 
was determined that the data itself was erroneous and corrected data 
was included in the Posthearing Staff Report. The Commission determined 
that the information was CBI since it was taken from a Commission 
document that was clearly marked as containing CBI. The Commission 
sanctioned the consultant with a private letter of reprimand because 
the breach was intentional; the Commission presumed that a non-
signatory reviewed the CBI since one or two of the exhibits were not 
retrieved and non-signatories attended the hearing; and the consultant 
had previously been found to have breached an APO and was issued a 
warning letter within a reasonably short period before the occurrence 
of this breach. The Commission took into consideration the consultant's 
immediate attempts to retrieve the exhibit and the fact that his 
consulting firm modified its procedures to avoid similar breaches in 
the future.
    The Commission also investigated whether attorneys in two law firms 
had breached the APO in this matter. One of the law firms had included 
the consultant on its APO application and the lead attorney for that 
firm had agreed to exercise direction and control over the consultant's 
handling of the APO materials. Another law firm also had hired the 
consultant to assist in the same investigation, but on a different 
product than that of the first law firm. That second firm gave the 
consultant the information on this second product and it was for this 
product that the exhibit had been prepared and concerning which the 
Commission hearing was held. The consultant was not included on the APO 
application of the second law firm, but was entitled to have the 
information on any product in this multiproduct investigation as long 
as he was included on one APO application. The Commission found that 
none of the attorneys in the second firm breached the APO because none 
was responsible for preparation of the exhibit and they had not signed 
an APO application agreeing to exercise direction and control over the 
consultant's handling of APO materials. The Commission issued a no 
violation breach to the lead attorney in the second firm, but 
admonished him to be more attentive in preventing breaches in the 
future.
    The Commission determined that the lead attorney in the first law 
firm breached the APO by failing to provide adequate supervision over 
the handling of CBI and by permitting the release of CBI by an economic 
consultant under the attorney's direction and control, especially in 
light of the fact that the consultant in question previously had 
breached an APO in a prior case that also had involved the lead 
attorney and his firm. The Commission determined to issue the lead 
attorney in the first firm a warning letter, in spite of the 
aggravating circumstances that existed in this case, because of the 
unusual circumstances of the APO in this multiproduct investigation 
which permitted the consultant to receive CBI from another attorney and 
work separately from the attorneys in the first law firm.
    Case 4: The Commission determined that two attorneys breached the 
APO by failing to return or destroy all copies of the CBI disclosed 
under the APO within 60 days of completion of the Commission's 
investigation and by using the retained documents for a purpose other 
than the Commission's investigation.
    The attorneys represented a party in a section 201 investigation. 
They argued that the failure to return or destroy the documents on a 
timely basis was inadvertent as they were not sure when the Commission 
investigation had ended. They also argued that the documents, although 
retained by them, were not used for any other purpose than the 
Commission investigation.
    The Commission found conflicting statements in the submissions from 
the attorneys. Relying primarily on the initial statements regarding 
the breaches, the Commission found that the breach was not inadvertent, 
and that the attorneys had retained the documents so they could review 
them in preparing their client's product exclusion submission to USTR. 
In reaching its decision, the Commission did not equate mere retention 
with use, but found that something more had occurred.
    The Commission denied the attorneys' request for reconsideration of 
the finding that the documents were used for something other than the 
Commission's investigation because the arguments were made during the 
breach phase of the Commission's investigation or they could have been 
made.
    There were several mitigating circumstances in this matter, 
including the facts that it was the first APO breach for both 
attorneys, there was no evidence that unauthorized persons gained 
access to the CBI, and the attorneys' law firm has instituted a written 
policy of checking the Federal Register on a daily basis for Commission 
notices. There were also aggravating circumstances that led the 
Commission to issue a private letter of reprimand to both attorneys. 
The breach was not inadvertent; the attorneys interpreted the APO, 
without seeking Commission guidance, to allow them to retain APO 
documents beyond the date set by the APO for return or destruction of 
APO documents; and the attorneys committed a second breach in their use 
of the APO documents for a purpose other than the Commission's 
investigation.
    Case 5: The Commission found that an attorney and a legal assistant 
breached the APO by serving a document containing BPI upon individuals 
not authorized to view BPI. The Commission issued private letters of 
reprimand to both individuals.
    The document had been prepared for filing and service by the legal 
assistant and signed by the attorney. The legal assistant mistakenly 
used the public service list instead of the APO service list to serve 
the document. Consequently, two law firms ineligible to receive BPI 
were served with the document. A lawyer in one of those firms opened 
the envelope and read the document long enough to determine that it 
contained BPI that he was ineligible to receive. At that point, the 
lawyer stopped reading and notified the attorney who signed the 
document about the possible breach. Once notified, the attorney was 
able to retrieve the document from both ineligible law firms, including 
from the second ineligible law firm which had not opened the sealed 
envelope.
    The mitigating circumstances in this case included the fact that 
the breach was inadvertent, neither the attorney nor the legal 
assistant had any prior breaches within the recent past, they made 
prompt efforts to limit the possibility of disclosure to persons not on 
the APO, and they took steps to prevent breaches in the future. The 
aggravating circumstances that supported the issuance of private 
letters of reprimand were the facts that a person not subject to the 
APO viewed the BPI and that the breach was discovered by someone other 
than the attorney or legal assistant.
    Case 6: The Commission determined that one attorney breached the 
APO by failing to ensure, as lead counsel in a Commission 
investigation, that all of the law firm personnel who would be working 
with BPI contained in documents received under APO were signatories to 
the APO. One other attorney in the firm had access to and used BPI 
under the APO notwithstanding that he was not a signatory to the APO. 
The Commission

[[Page 29977]]

found that this attorney had violated 19 CFR 201.15.
    An attorney in the law firm discovered that one of the attorneys 
working on the investigation in the law firm was not on the APO service 
list after the investigation had been completed. He notified the 
Commission immediately about the possible breach. In determining that 
the lead attorney should receive a private letter of reprimand, the 
Commission considered the mitigating circumstances that the firm 
discovered the breach and notified the Commission immediately, the lead 
attorney voluntarily conducted classes for his firm concerning the 
handling of BPI, the breach was inadverent, and the non-signatory 
attorney handled the APO materials as if he were a signatory. However, 
the Commission also considered the aggravating circumstance that the 
lead attorney had received a warning letter in a previous breach 
investigation within the recent past.
    In determining to issue a warning letter to the non-signatory 
attorney, the Commission stated that it considers ``good cause'' for 
imposition of a warning letter pursuant to 19 CFR 201.15 to be the 
equivalent of a breach of an APO. However, it decided not to issue any 
sanction for the attorney's conduct because this was the only breach-
equivalent action in which he had been involved within the two-year 
period generally examined by the Commission for purposes of determining 
sanctions, his action was not willful, he treated BPI as if he had 
signed the APO, and he reported and remedied the objectionable conduct 
shortly after he had learned of it.
    Case 7: The Commission issued a warning letter to an economist 
after finding he breached the APO by transmitting exhibits containing 
BPI to a non-signatory copy vendor. The economist had substantial 
experience handling APO material in Commission title VII 
investigations. He was working on the investigation under the direction 
and control of an attorney in a law firm. Prior to the economist taking 
the exhibits to the copy vendor, the attorney supervising him had 
reviewed the documents to be sure there was no BPI in them. After the 
attorney's review, the economist decided to add another document to the 
exhibits that included BPI. Although from earlier discussions with the 
attorney the economist had reason to question whether the vendor was a 
signatory to the APO, he handed the documents directly to the copy 
vendor without determining whether the vendor was a signatory to the 
APO.
    The Commission considered whether the economist, the attorney, and 
the lead attorney on the investigation breached the APO. The Commission 
determined that the attorney did not breach the APO. Although he was, 
in general, responsible for the economist's actions, he could not 
reasonably have foreseen that the economist would have inserted an APO 
document into the exhibits. The attorney had approved the exhibits and 
did not anticipate any additions to them. The Commission determined 
that the lead attorney had not breached the APO because he had 
reasonably delegated his supervisory responsiblities over the economist 
to the attorney and that attorney was experienced and had no prior 
breaches that would have put the lead attorney on notice that more 
supervision was necessary.
    The law firm and the economist had argued that a breach did not 
occur because there was no BPI in the exhibits. They argued that the 
information that was considered BPI was publicly available. The 
Commission found that, although a small part of the BPI had been made 
public during the preliminary phase of the investigation, the remainder 
was BPI and included questionnaire responses or clarification to 
questionnaire responses.
    The Commission determined to issue a warning letter to the 
economist because the breach was unintentional, this was his first 
breach, and the copy vendor merely copied the documents and did not 
review the BPI. In addition, once the economist realized that a breach 
might have occurred, he immediately notified the attorney, who took 
prompt and effective action to stop any further dissemination of the 
BPI. The Commission noted in its letters to the economist and attorney 
that the Commission was not notified of the possible breach for 30 days 
after it was discovered. The Commission stated that it will expect more 
prompt notification by them with regard to any possible APO breaches in 
the future, in compliance with the APO which requires signatories to 
``[r]eport promptly * * * any possible breach.''
    Case 8: The Commission issued warning letters to three attorneys 
and two international trade analysts in one firm for permitting a legal 
secretary to have access to CBI even though he had not signed the APO 
Acknowledgment for Clerical Personnel and, therefore, his name was not 
included on the Secretary's confidential certificate of service. The 
attorneys and international trade analysts were all signatories to the 
APO and had worked on the Commission's investigation. The Commission 
decided to issue a warning letter instead of sanctions because the 
breach was inadvertent, it was the attorneys' and analysts' first 
breach, they reported the breach promptly to the Commission, and they 
took corrective measures to prevent similar breaches in the future.
    The Commission did not issue a warning letter to the legal 
secretary, but cautioned him to ensure in future investigations that he 
has signed the Acknowledgement before accessing CBI.
    Case 9: The Commission found that an attorney breached the APO by 
electronically transmitting a prehearing brief that contained both 
masked and not redacted BPI and BPI that had been neither masked nor 
redacted to two non-signatories of the APO. The Commission issued a 
private letter of reprimand because at least one of the non-signatories 
read the BPI that had neither been masked nor redacted and there was a 
delay in the attorney's notification of the Commission about the 
possible breach. In reaching this decision, the Commission considered 
the mitigating circumstances that the attorney had no prior breaches, 
he notified the Commission of the breach, and he immediately took 
appropriate corrective measures.
    During the breach phase of the investigation, the attorney argued 
that the electronic ``whiting-out'' of the BPI was sufficient to 
protect it. In response, the Commission noted that it has consistently 
found that it is a breach of the APO to send an electronic document to 
persons not on the APO in which the BPI had been electronically masked 
or ``whited-out'' since the BPI can be retrieved by altering the 
software print codes. The Commission also dismissed the attorney's 
arguments that the BPI that had neither been masked nor redacted was 
not BPI. The Commission found that most of the data in question had 
been questionnaire responses that were bracketed as BPI in the 
prehearing report. Questionnaire responses are treated by the 
Commission as BPI in their entirety, unless the information is 
otherwise available from a public source, or is a non-numerical 
characterization of aggregate trends. The Commission considered certain 
public sources that the attorney claimed revealed the information, but 
found that the exact information was not publicly available.
    Case 10: The Commission determined that an attorney breached the 
APO in a section 337 investigation by transmitting a confidential 
version of a brief filed in the appeal of the Commission investigation 
to persons who were not signatories to the APO. The Commission stated 
in the warning letter to the attorney that this finding

[[Page 29978]]

was consistent with prior determinations when the Commission determined 
that making CBI available to unauthorized persons constitutes a breach 
of the APO, regardless of whether the unauthorized persons actually 
viewed the CBI.
    The Commission determined to issue the warning letter to the 
attorney instead of a sanction because the breach was unintentional, he 
had no prior warnings or sanctions regarding APO breaches within the 
recent past, he took prompt action to remedy the breach, and no non-
signatory to the APO actually read the electronically transmitted 
brief.
    Rule Violation: The Commission issued a warning letter to an 
attorney for violating the Commission's 24-hour rule, 19 CFR 207.3. On 
the day following the filing of a confidential prehearing brief in a 
Commission investigation, the attorney filed a public version of the 
brief and a revised confidential version. Both versions contained 
additions to and deletions of text on several pages and there were 
several pages missing from an exhibit. The Commission found that this 
violated the 24-hour rule because that rule specficially precludes 
changes other than bracketing changes and the deletion of confidential 
information during the 24-hour period after the original filing. The 
Commission noted that the rule allowed attorneys to seek leave to make 
other changes but, in this case, the attorney did not.
    The Commission issued a warning letter instead of a sanction 
because the changes appeared to be inadvertent and the attorney had no 
record of a rule violation or APO breach within the recent past.

IV. Investigations in Which No Breach Was Found

    There were two APOB investigations in which the Commission 
determined that the APO had not been breached. One involved testimony 
at a hearing that might have disclosed BPI. Through its investigation 
the Commission determined that the information disclosed was not BPI 
because it was publicly available. In the other investigation, the 
Commission's staff determined that no BPI was served on a party that 
was not on the APO service list because the data belonged to the 
attorney's own client and was not other company data received under the 
APO.

    By order of the Commission.

    Issued: May 20, 2004.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 04-11862 Filed 5-25-04; 8:45 am]
BILLING CODE 7020-02-P