Summary of Commission Practice Relating to Administrative Protective Orders, 50119-50124 [E7-17188]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 72, Number 168 (Thursday, August 30, 2007)]
[Notices]
[Pages 50119-50124]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-17188]


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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 under Title VII and violations of the 
Commission's rules including the rule on bracketing business 
proprietary information (``BPI'') (the ``24-hour rule''), 19 CFR 
207.3(c). This notice provides a summary of investigations completed 
during calendar year 2006 of breaches in proceedings under Title VII. 
In 2006, there were no completed investigations of breaches in 
proceedings other than Title VII. The Commission intends that this 
report inform 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 (https://www.usitc.gov).

SUPPLEMENTARY INFORMATION: Representatives of parties to investigations 
or other proceedings conducted under Title VII of the Tariff Act of 
1930, sections 202 and 204 of the Trade Act of 1974, section 421 of the 
Trade Act of 1974, section 337 of the Tariff Act of 1930, and NAFTA 
Article 1904.13, 19 U.S.C. 1516a(g)(7)(A) may enter into APOs that 
permit them, under strict conditions, to obtain access to BPI (Title 
VII) or confidential business information (``CBI'') (section 421, 
sections 201-204, and section 337) of other parties. See 19 U.S.C. 
1677f; 19 CFR 207.7; 19 CFR 207.100, et. seq.; 19 U.S.C. 2252(i); 19 
U.S.C. 2451a(b)(3); 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 during calendar year 2006, including a 
description of actions taken in response to these breaches.
    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); 69 FR 29972 (May 26, 2004); 70 FR 42382 
(July 25, 2005); 71 FR 39355 (July 12, 2006). 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 2005 a fourth edition of An Introduction to Administrative 
Protective Order Practice in Import Injury Investigations (Pub. No. 
3755). 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 and on the Commission's Web 
site at https://www.usitc.gov.

I. In General

    The current APO form for antidumping and countervailing duty 
investigations, which was revised in March 2005, requires the applicant 
to swear that he or she will:
    (1) Not divulge any of the BPI obtained under this APO or otherwise 
obtained in this investigation and not otherwise available to him or 
her, 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 
decision making for an interested party which is a party to the 
investigation; and (d) have signed the 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 above-captioned 
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 or otherwise obtained in this 
investigation without first having received the written consent of the 
Secretary and the party

[[Page 50120]]

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 
business proprietary information in the current or any future 
investigations before the Commission, and issuance of a public or 
private letter of reprimand; and
    (5) Such other actions, including but not limited to, a warning 
letter, as the Commission determines to be appropriate.
    APOs in investigations other than those under Title VII contain 
similar, though not identical, provisions.
    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 CBI and BPI. However, Commission employees are subject to 
strict statutory and regulatory constraints concerning BPI and CBI, 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 Title VII and safeguard 
rules relating to BPI/CBI 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 has commenced and that an APO breach investigation file 
has been opened. Upon receiving notification from the Secretary, the 
Office of the General Counsel (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.\1\ 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 finds 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.
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    \1\ Procedures for inquiries to determine whether a prohibited 
act such as a breach has occurred and for imposing sanctions for 
violation of the provisions of a protective order issued during 
NAFTA panel or committee proceedings are set out in 19 CFR 207.100--
207.120. Those investigations are initially conducted by the 
Commission's Office of Unfair Import Investigations.
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    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

[[Page 50121]]

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 an economist or consultant to obtain 
access to BPI/CBI under the APO in a Title VII or safeguard 
investigation 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); 19 CFR 206.17(a)(3)(B) and (C). Economists and consultants who 
obtain access to BPI/CBI 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, 19 
U.S.C. 1677f(g).
    The two types of breaches most frequently investigated by the 
Commission involve the APO's prohibition on the dissemination of BPI or 
CBI to unauthorized persons and the APO's requirement that the 
materials received under the APO be returned or destroyed and that a 
certificate be filed indicating which action was taken after the 
termination of the investigation or any subsequent appeals of the 
Commission's determination. The dissemination of BPI 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/CBI in proprietary documents filed with 
the Commission; the failure to report immediately known violations of 
an APO; and the failure to adequately supervise non-legal personnel in 
the handling of BPI/CBI.
    In the past several years, the Commission completed APOB 
investigations which involved members of a law firm or consultants 
working with a firm who were granted access to APO materials by the 
firm although they were not APO signatories. In 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 of 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 in which action was taken, 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. The Commission notes that section 201.15 may also be 
available to issue sanctions to attorneys or agents in different 
factual circumstances where they did not technically breach the APO but 
where their actions or inactions did not demonstrate diligent care of 
the APO materials even though they appeared regularly before the 
Commission and were aware of the importance the Commission placed on 
the care of APO materials.
    The Department of Commerce (``Commerce'') performs functions 
related to those of the Commission under title VII, including the 
issuance of APOs. The two agencies cooperate when necessary in the 
identification of possible APO breaches. In 2006, one APOB 
investigation was completed that involved a referral from Commerce 
about the possible release of BPI obtained under the Commission's APO 
during a meeting at the Department. No breach was found in that matter 
and it is summarized as Case 2 for the investigations in which no 
breach was found. Similarly, also in 2006, a concern arose that 
proprietary information obtained under Commerce's APO may have been 
released during a Commission hearing. Commerce was informed of the 
situation by Commission staff.
    The Commission's Secretary has provided clarification to counsel 
representing parties in investigations relating to global safeguard 
actions, section 202(b) of the Trade Act of 1974, investigations for 
relief from market disruption, section 421(b) or (o) of the Trade Act 
of 1974, and investigations for action in response to trade diversion, 
section 422(b) of the Trade Act of 1974, and investigations concerning 
dumping and subsidies under section 516A and title VII of the Tariff 
Act of 1930 (19 U.S.C. 1303, 1516A and 1671-1677n). The clarification 
concerns the requirement to return or destroy CBI/BPI that was obtained 
under a Commission APO.
    A letter was sent to all Counsel on active service lists in mid-
March 2007. Counsel were cautioned to be certain that each authorized 
applicant files within 60 days of the completion of an investigation or 
at the conclusion of judicial or binational review of the Commission's 
determination a certificate that to his or her knowledge and belief all 
copies of BPI/CBI have been returned or destroyed and no copies of such 
material have been made available to any person to whom disclosure was 
not specifically authorized. This requirement applies to each attorney, 
consultant, or expert in a firm who has been granted access to BPI/CBI. 
One firm-wide certificate is insufficient. This same information is 
also being added to notifications sent to new APO applicants.
    In addition, attorneys representing clients in section 337 
investigations should send a notice to the Commission if they are no 
longer participating in a section 337 investigation or the subsequent 
appeal of the Commission's determination. In Case 10 of the summaries 
of completed 2005 APOB investigations published in the Federal Register 
on July 12, 2006 (71 FR 39361), the Commission found that a lead 
attorney, who left a law firm which represented a respondent in a 
Commission investigation after the investigation was completed but 
before the appeal of the Commission's determination had ended, breached 
the APO by not informing the Commission of his departure and that he 
should no longer be a signatory to the APO. In addition, the Commission 
found that he had also breached the APO by failing to ensure that his 
former firm complied with the APO requirements for returning and 
destroying the confidential materials obtained under the APO. Thus, 
individual counsel in section 337 investigations should take care to 
inform the Commission of their departure from a position for which

[[Page 50122]]

they are a signatory to a Commission APO and to inform the Commission 
about their disposition of CBI obtained under the APO that is in their 
possession or they could be held responsible for any failure of their 
former firm to return or destroy the CBI in an appropriate manner.

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 an associate attorney and a 
professional assistant breached the APO by failing to redact BPI from 
the public version of the prehearing brief filed by their law firm.
    The firm uses a macro for redaction of bracketed material. However, 
because the macro does not remove BPI from bracketing in charts and 
tables, the professional assistant was responsible for manually 
redacting the BPI. The associate attorney was the final attorney to 
review the brief and sign it for the firm. The breach was inadvertent, 
neither person sanctioned had previous APO breaches during the two-year 
period normally examined by the Commission for sanctions purposes, the 
firm took quick action to minimize the effect of the release of the 
BPI, and the firm improved its procedures to avoid a similar incident 
in the future. Nevertheless, the Commission decided to issue a private 
letter of reprimand to both the attorney and the professional assistant 
because a non-signatory of the APO read the BPI that had been released.
    Initially, the Commission had also found that the lead attorney, a 
partner, and the APO coordinator had both breached the APO because they 
failed to follow the procedures in place prior to the breach which 
required that either a partner or the APO coordinator review the brief 
before it is filed. During the sanctions phase of the APOB 
investigation the partner and the APO coordinator requested that the 
Commission reconsider its determination that they had breached the APO 
because the requirement that a partner or the APO coordinator review 
the brief was a new procedural requirement that became effective after 
the breach in question. The APO coordinator, in providing the 
Commission with the firm's new procedures, had inadvertently indicated 
that this requirement was in place prior to the breach. Because the 
partner was unaware of the error made by the APO coordinator concerning 
the new procedures, the argument that he was not responsible for the 
breach had not previously been available to him. The Commission 
considered the argument and determined that the partner and the APO 
coordinator had not breached the APO. Since the APO coordinator caused 
the confusion by not taking sufficient care in his communications 
regarding the procedures with the Commission, he was admonished in the 
Commission's letter to be more careful about his communications with 
the Commission and his awareness of the firm's APO procedures. The 
Commission also stated that he should have been on notice of the need 
for particular vigilance with respect to unauthorized disclosure of BPI 
because other personnel in his firm had previously breached the APO by 
disclosing BPI to an unauthorized person.
    Case 2. The Commission determined that a trade analyst at a law 
firm had breached the APO when he gave a document containing BPI to a 
clerical employee to proofread although the clerical employee was not 
subject to the APO.
    A partner at the law firm who was the supervising attorney in the 
Commission investigation had instructed the trade analyst to prepare a 
spreadsheet which would contain BPI. He also instructed the analyst to 
handle the material according to APO guidelines and assign work on the 
document to only those clerical employees who were included on the APO. 
Instead, the analyst gave the final proofreading responsibility to a 
clerical employee who was not listed on the APO.
    The Commission issued a warning letter to the trade analyst. The 
trade analyst had no prior APO breaches within the two-year period 
normally considered by the Commission for sanctions purposes. The only 
non-signatory who viewed the BPI was the clerical employee. The BPI was 
not divulged outside the law firm nor to any other non-signatory in the 
firm. The firm took immediate steps to change its procedures to be sure 
that no clerical person who was not on the APO would have access to BPI 
in future cases. The breach was discovered by the analyst, who reported 
it to the supervising attorney.
    The Commission found that the supervising attorney and the clerical 
employee did not breach the APO. The trade analyst had eight years of 
experience with Commission investigations and no prior breaches, thus 
making the delegation of responsibility for preparing the document in 
question reasonable. The clerical employee was not subject to the APO 
and had handled the BPI in a manner that would not place the 
information at risk of being further divulged.
    Case 3. The Commission found that an attorney breached the APO by 
providing a document containing BPI to an economic consultant who was 
not a signatory to the APO.
    An attorney in a law firm gave a copy of a document containing BPI 
to the economic consultant working with his firm on a Commission 
investigation. He provided this document under the mistaken belief that 
the law firm had filed an APO application that had been signed by the 
consultant and that the application had been approved. The consultant 
had been told by the attorney that the APO application had been filed 
and approved. Thus, the consultant, based on this information, accepted 
the document and retained it in his files for almost five months, until 
the breach was discovered by the attorney. At all times the consultant 
treated the BPI as if he were a signatory of the APO.
    The Commission decided to issue a warning letter to the attorney 
instead of a private letter of reprimand in light of several mitigating 
circumstances. The disclosure of the BPI was to a consultant 
practitioner who safeguarded the BPI under the terms of the APO. The 
breach was inadvertent; the attorney acted under the mistaken belief 
that the consultant was a signatory to the APO. The attorney had not 
had any previous APO violations within the two-year period normally 
considered by the Commission for sanctions purposes. Finally, the 
attorney took prompt action to remedy the breach once he discovered it.
    The Commission also considered whether there was good cause to 
sanction the consultant under Commission rule 201.15 (19 CFR 201.15) 
for accepting the document containing BPI while not being a signatory 
to the APO. The Commission decided that there was not good cause 
because the consultant reasonably relied on representations of counsel 
that his APO application had been filed and approved. However, the 
consultant was

[[Page 50123]]

advised for future investigations to ensure independently that he and 
his staff are subject to the APO before accessing BPI.
    Case 4. The Commission found that a lead attorney and a legal 
assistant breached the APO by filing a public version of a prehearing 
brief containing BPI.
    After a law firm filed the confidential version of their client's 
prehearing brief, and the public version was reviewed by an associate 
attorney, the lead attorney decided to expand the bracketing on a 
particular page of the confidential brief. The lead attorney then asked 
a legal assistant to prepare a public version of the replacement page 
and substitute that page into the public version of the brief. The next 
morning, when the public brief was scheduled to be filed, the lead 
attorney asked the associate to oversee the production and filing of 
the brief. The brief was then filed by the legal assistant without 
further review by either attorney.
    The Commission issued warning letters to the lead attorney and the 
legal assistant for failing to redact BPI from the replacement page. 
The Commission noted that the lead attorney was the supervising 
attorney for the failed redaction process, allowing the unredacted page 
to be filed with the Commission without an attorney reviewing that 
page. The Commission decided to issue a warning letter instead of a 
private letter of reprimand because this was the only breach in which 
the lead attorney had been involved within the two-year period normally 
considered by the Commission for sanctions purposes, the breach was 
unintentional, prompt action was taken to remedy the breach, and the 
firm took measures to assure that this type of error would not occur in 
the future, specifically revising its APO procedures to ensure that an 
attorney will review and sign off that a redacted replacement page is 
ready for filing. No non-signatory to the APO gained access to the BPI.
    In determining that the legal assistant breached the APO, the 
Commission noted that the assistant was delegated the responsibility of 
redacting the BPI from the brief and that she was directly involved in 
the process and acknowledges that she forgot to redact all of the BPI. 
The Commission considered the same mitigating factors for the legal 
assistant as for the lead attorney in determining that she should 
receive a warning letter instead of a private letter of reprimand.
    The Commission found that the associate was not responsible for the 
breach because he did not prepare or review the replacement page and 
did not have first hand knowledge of the incident.
    A second breach was also alleged regarding this brief. An attorney 
from another firm informed the lead attorney that information that had 
been bracketed in an exhibit to the public version of the brief was not 
redacted. The Commission determined that this was not a breach because 
the information was not obtained through the APO and was otherwise 
available to the firm.
    Case 5. The Commission determined that an attorney and a paralegal 
breached the APO by failing to redact bracketed BPI from the public 
version of a pre-hearing brief.
    The attorney prepared the public version of the brief and attached 
several exhibits from the confidential version of the brief. He then 
instructed the paralegal to redact all bracketed information in the 
brief and attachments. After the paralegal removed the bracketed 
information the attorney reviewed the document and approved it for 
filing. The attorney's legal secretary then filed the public version of 
the pre-hearing brief together with the confidential version of the 
brief.
    Ten days later the attorney was informed by the Commission 
Secretary that one of the exhibits contained unredacted bracketed BPI. 
The attorney then took immediate action to cure the problem by alerting 
counsel for other parties and instructing them and his legal secretary 
to destroy all hard copies and electronic copies of the exhibit 
containing BPI. The attorney determined that no non-signatory had been 
provided with a copy of the brief. The law firm took immediate steps to 
change its procedures to avoid similar problems in the future.
    The Commission decided to issue warning letters instead of private 
letters of reprimand to the attorney and the paralegal because no non-
signatory read the BPI, the breach was inadvertent, neither person had 
been found to have breached an APO within the two-year period normally 
considered by the Commission for sanctions purposes, the firm took 
immediate steps to remedy the breach once the attorney was notified of 
the breach, and it changed its procedures to assure that this type of 
error would not occur in the future. The Commission also decided that 
the legal secretary did not breach the APO because she had only been 
instructed to file the brief and not check the document for 
confidential information.
    There were three investigations in which no breach was found:
    Case 1. The Commission determined that an attorney responsible for 
preparing the public version of a prehearing brief did not breach the 
APO even though he failed to redact all of the bracketed information 
from the brief. The Commission determined that the unredacted 
information was not BPI in that it consisted of general descriptions of 
trends of otherwise proprietary data and the trends were publicly 
available.
    Case 2. A question was raised by a Department of Commerce 
(``Commerce'') official concerning whether BPI from the Commission's 
investigation was used during a meeting regarding the Commerce side of 
the investigation. The lead attorney for a party commented at the 
meeting that Commerce officials should request certain questionnaire 
responses from the Commission's record to clarify issues in the 
Commerce investigation. The Commission noted in a letter to the lead 
attorney that this could be construed to suggest that the attorney was 
aware of the contents of the questionnaire responses and was using the 
confidential information obtained under the Commission's APO to respond 
to questions in the Commerce proceedings. This would normally be a 
breach in that signatories to an APO agree to use BPI obtained under 
that order solely for the purposes of the Commission investigation in 
question. The Commission determined that the attorney's statement was 
not a breach, however, because the Commission had discussed the 
specific issue in the public version of its views and had relied 
heavily on those questionnaire responses in its discussion.
    In addition to the lead attorney, another partner and a trade 
analyst for the law firm were at the meeting. The Commission found that 
the trade analyst did not breach the APO because he did not discuss the 
questionnaire responses from the Commission investigation and limited 
his discussion to specific methodologies and facts pertaining to 
information on the record at Commerce. The Commission found that good 
cause did not exist to sanction the partner, who was not an APO 
signatory, under Commission rule 201.15 (19 CFR 201.15) because, 
although he attended the meeting, he did not participate in the 
substantive discussions.
    Case 3. A law firm attached an exhibit list containing BPI to its 
post-hearing brief. The Commission determined that disclosure of the 
information in the exhibit list was not a breach of the APO. Part of 
the information was not BPI because it was on the public record at the 
time the brief was filed; the other information concerned was BPI

[[Page 50124]]

obtained from the law firm's clients and not obtained under the APO.

    By order of the Commission.

    Issued: August 27, 2007.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E7-17188 Filed 8-29-07; 8:45 am]
BILLING CODE 7020-02-P