Summary of Commission Practice Relating to Administrative Protective Orders, 66127-66131 [2010-27172]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 75, Number 207 (Wednesday, October 27, 2010)]
[Notices]
[Pages 66127-66131]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27172]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 2009 of breaches in proceedings under title VII 
and section 337 of the Tariff Act of 1930. In addition, there is a 
summary of rules violation investigations completed in 2009. The 
Commission intends that this report inform representatives of parties 
to Commission proceedings as to some specific types of APO breaches and 
rules violations 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 Web 
site (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 North 
American Free Trade Agreement (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 and rules violation investigations 
that the Commission has completed during calendar year 2009, including 
a description of actions taken in response to these breaches and rules 
violations.
    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 (February 6, 1991); 57 FR 12335 (April 9, 1992); 
58 FR 21991 (April 26, 1993); 59 FR 16834 (April 8, 1994); 60 FR 24880 
(May 10, 1995); 61 FR 21203 (May 9, 1996); 62 FR 13164 (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); 72 FR 50119 (August 
30, 2007); 73 FR 51843 (September 5, 2008); and 74 FR 54071 (October 
21, 2009). 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 disclosed 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 this 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 or the representative of the party from whom 
such BPI was obtained;

[[Page 66128]]

    (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 this 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 this APO; and
    (10) Acknowledge that breach of this 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/CBI 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/CBI. 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    Sanctions for APO violations serve two basic interests: (a) 
Preserving the confidence of submitters of BPI/CBI that the Commission 
is a reliable protector of BPI/CBI; 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 66129]]

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/CBI. The Commission 
considers whether there have been 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, and section 135(b) of the Customs and Trade Act of 1990, 19 
U.S.C. 1677f(g). See also 19 U.S.C. 1333(h).
    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/CBI usually occurs 
as the result of failure to delete BPI/CBI 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-lawyers in the handling of BPI/CBI.
    In the past several years, the Commission completed APOB 
investigations that 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 in which they did not technically breach the APO, 
but when 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 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.
    Counsel have been 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 who are signatories to the APO representing 
clients in a section 337 investigation should send a notice to the 
Commission if they stop participating in the investigation or the 
subsequent appeal of the Commission's determination. The notice should 
inform the Commission about the disposition of CBI obtained under the 
APO that was 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

APO Breach Investigations

    Case 1: The Commission found that an attorney for the complainant 
in a section 337 investigation had violated the APO when he provided 
copies of partially redacted confidential versions of post-hearing 
briefs of three parties to the section 337 investigation to an attorney 
with another law firm who was not a signatory to the APO. This attorney 
in turn provided the briefs to the U.S. Patent and Trademark Office 
(``PTO''), and, pursuant to PTO service rules, served a copy on another 
non-signatory attorney. One of the briefs was viewable through the PTO 
database for approximately two weeks.
    The respondent in the section 337 investigation filed a motion 
requesting that five sanctions be imposed on complainant and 
complainant's counsel. The Commission denied this motion in its 
entirety, but issued a private letter of reprimand to the breaching 
attorney and sent a letter to the General Counsel of the PTO requesting 
assistance in the destruction or return of documents containing the 
CBI.
    There were several mitigating factors. The breach was inadvertent, 
as the attorney believed he was submitting the public versions of the 
parties' briefs. The attorney had requested the public version of the 
briefs from one paralegal, who asked a paralegal in another of the

[[Page 66130]]

firm's offices to retrieve the briefs. That paralegal provided 
partially redacted versions. However, because the paralegal providing 
the briefs to the attorney believed they were public versions, she 
changed the marking from confidential to public without informing the 
attorney. Consequently, the attorney submitted the partially redacted 
confidential versions, at least in part, due to a paralegal error. The 
attorney's firm subsequently provided training and instruction on the 
proper handling of CBI.
    This was also the attorney's first APO breach. Upon learning of his 
breach, he promptly reported it and initiated corrective action. 
However, the Commission questioned the sufficiency of the attorney's 
follow-up attempts to cure the breach. The petition to expunge the 
briefs from the PTO database was filed 17 months before the public 
versions of the three briefs were submitted in their place.
    The attorney contended that there was no evidence that non-
signatories to the APO actually viewed the partially redacted briefs. 
The Commission found, however, that the briefs were provided to the PTO 
and PTO personnel are not APO signatories; the briefs were not 
recovered until more than two years after they were filed with the PTO; 
and at least one of the briefs could be viewed for two weeks on the PTO 
Patent Application Informal Retrieval Database, which is connected to 
the Internet. The Commission therefore presumed the CBI was reviewed by 
a non-signatory, and found that to be an aggravating factor.
    Case 2: A lead attorney and an associate attorney breached the APO 
when they failed to redact BPI from the public version of an appendix 
to a brief filed in the Court of International Trade (``CIT''). The law 
firm informed the CIT and the Commission of the error once it became 
aware that the appendix contained BPI. The Commission issued a warning 
letter to the lead attorney and a private letter of reprimand to the 
associate.
    There were several mitigating factors. The breach was inadvertent, 
and the law firm took relatively prompt action to remedy the breach. In 
addition, although the appendix was publicly available at the CIT, a 
CIT investigation showed that only signatories to the Commission APO 
and law clerks to the CIT judge had accessed the appendix. Thus, no 
unauthorized person had read the BPI. In addition, the lead attorney 
did not have a prior breach within the previous two years generally 
examined by the Commission for purposes of determining sanctions.
    With respect to aggravating factors, the associate was found to 
have breached the APO in another Commission investigation within the 
previous two years, and was therefore, given a private letter of 
reprimand in spite of the mitigating circumstances. The Commission 
found that the lead attorney failed to supervise the associate 
adequately in the task of preparing the appendix for filing.
    Case 3: The Commission found that an associate attorney and an 
international trade specialist breached the APO when they filed a 
public version of a prehearing brief that erroneously contained BPI in 
a title VII five-year review. Both individuals received private letters 
of reprimand.
    The BPI consisted of cumulative data concerning nonsubject imports 
and combined export numbers for the domestic industry. The release of 
this information, when combined with other publicly available 
information on the record, made it possible to calculate the volume of 
nonsubject imports and estimate two domestic producers' exports during 
the original title VII investigation.
    There were two mitigating factors. The breach was inadvertent, and 
the individuals involved had not been sanctioned for an APO breach 
within the past two years.
    The parties argued that the Commission itself was partly 
responsible for the dissemination of the BPI because it distributed the 
confidential staff prehearing report containing unbracketed BPI to 
party representatives who were under the APO. However, the Commission 
found that this was not a mitigating factor because the cover page of 
the prehearing staff report clearly indicated that only the public 
version of the report should be used as a guide for confidentiality. 
The law firm received the public version of the staff report nine days 
before it filed the public version of its prehearing brief, and had 
ample time to refer to it and prevent the breach. The Commission also 
declined to accept the argument of the associate and international 
trade specialist that the ``tight'' time frame of sunset reviews 
justified their failure to properly rely on the public version.
    There were also aggravating factors. The Commission staff, and not 
the law firm, discovered the possible breach. Without information to 
the contrary presented by the breaching individuals, the Commission 
presumed that the BPI was read by unauthorized personnel because it had 
been in the possession of unauthorized parties for over two months.
    Case 4: The Commission found that a paralegal breached the APO when 
he prepared and filed a public version of a brief containing BPI in a 
title VII investigation without informing any attorneys in his firm. 
The paralegal was instructed by the supervisory attorney to prepare the 
confidential version of the brief for filing. The paralegal had 
extensive experience in Commission investigations and in preparing 
documents containing confidential information. While the paralegal was 
preparing the confidential brief, he misread the Commission's rules and 
believed the public version was also due for filing that day. Because 
it was late in the day, he immediately prepared the public version and 
filed it with the confidential version. In so doing, he failed to 
follow the firm's procedures for handling and filing documents 
containing BPI and failed to remove all BPI from the public version of 
the brief. The Commission issued a warning letter to the paralegal. The 
Commission found that the supervising attorney, whom the paralegal did 
not inform of his action, was not responsible for the breach.
    There were several mitigating factors. The breach was 
unintentional, the BPI was not read by any person not subject to the 
APO, the firm moved to remedy the breach expeditiously after being 
informed of it by the Commission staff, and this was the paralegal's 
only breach in the prior two years generally examined by the Commission 
for the purpose of determining sanctions.
    There were also aggravating factors. Commission staff, rather than 
the firm, discovered the breach, and the paralegal failed to follow the 
firm's procedures requiring attorney review of any filing for BPI.
    Case 5: The Commission found that a secretary in a law firm 
breached the APO by mistakenly sending the confidential version of a 
title VII brief to an attorney who was opposing the law firm in a 
different investigation and who was not a signatory to the title VII 
investigation's APO. The Commission concluded that the firm's attorneys 
did not breach the APO. The secretary had been given a purely 
ministerial task of preparing a mailing envelope and, acting on her 
own, had inadvertently placed the title VII brief in the wrong mailing 
envelope. The Commission issued a warning letter to the secretary.
    There were several mitigating factors. The secretary had no prior 
breaches within the prior two years generally examined by the 
Commission for purposes of determining sanctions; the breach was 
unintentional; relatively prompt action was taken to remedy the breach; 
and the record in this APOB

[[Page 66131]]

investigation suggests that the BPI was not viewed by unauthorized 
persons.
    Case 6: The Commission found that two attorneys breached the APO 
when they submitted a postconference brief comparing the prices of 
various firms' imports. The attorneys deliberately declined to bracket 
a passage providing a description of the degree by which prices 
reported by one importer were lower than those reported by other 
importers, on the grounds that Commission Rule 201.6(a)(1) allows 
parties to make ``nonnumerical characterization'' of trends in public 
submissions. In the Federal Register notice of final rulemaking for 
section 201.6(a)(1), the preamble stated that any discussion of the 
degree or absolute level of a decline or increase was not a 
``nonnumerical characterization.'' The Commission concluded that, 
although the phrases were not literally numerical, they conveyed as 
much specificity as a strictly numerical characterization. Accordingly, 
the Commission found that the information in question was BPI and that 
it should have been bracketed. The attorneys argued that the BPI was 
information they acquired from their client and not from the 
questionnaire responses that had been cited in the brief. To support 
their argument, they cited exhibits that were included with the brief. 
The Commission found that these exhibits did not support their 
allegations that the information came from their client. The Commission 
issued private letters of reprimand to both attorneys.
    There were two mitigating factors. Neither attorney had been found 
to have breached an APO in the two years the Commission typically 
considers for determining sanctions. In addition, the record showed 
that the attorneys had responded promptly to the request by the 
Commission's staff to provide a replacement page for the page 
containing the unbracketed BPI, although the Commission's Dockets staff 
never actually received it.
    There were also several aggravating factors. First, the Commission 
found that the breach was not inadvertent. The attorneys were aware of 
Commission rule 201.6(a)(1), but they made either no effort or an 
inadequate effort to ascertain the Commission's published 
interpretation of the regulation, notwithstanding the fact that it was 
readily available, easily located, and expressly addressed the question 
of whether the information should be treated as BPI. Instead they 
adopted their own interpretation of the regulation without consulting 
the Commission's staff. Thus, they made a conscious decision not to 
bracket material that was BPI.
    Second, the Commission presumed that an individual not subject to 
the APO read the unbracketed BPI in the public version of the brief. 
The brief was sent to counsel for the opposing side, who was not 
subject to the APO. The replacement page was not sent to him until the 
next day. The attorneys did not address whether the counsel had viewed 
the BPI even after being specifically asked by the Commission's 
Secretary. In the absence of any contrary representation by the 
attorneys, the Commission presumed that opposing counsel read the 
brief, including the BPI, at the time he received it.
    Third, the breach was discovered by the Commission's staff. In 
addition, although the attorneys initially provided the replacement 
page promptly, they did not respond to the second request for a 
replacement page, which was necessitated by the fact that Dockets staff 
did not receive the original replacement page. The attorneys did 
respond to the third request.

APO Breach Investigation in Which No Breach Was Found

    Case 1: Counsel for respondents in a title VII investigation 
transmitted to their clients copies of a draft public version of a 
prehearing brief. The draft brief contained information that had been 
derived from information in the Commission's prehearing report. In the 
report, the information was treated as BPI and was bracketed. The 
Commission determined that counsel did not breach the APO because at 
the time the brief was prepared, the substance of the material in the 
draft prehearing brief was available in the public domain.

Rules Violations

    Case 1: The Commission found that an attorney violated 19 CFR 
207.3(b) by serving a postconference brief in a title VII investigation 
by first-class mail. The Commission issued a warning letter. There were 
two mitigating factors: (1) Rhis was the attorney's first rules 
violation within the prior two years generally examined by the 
Commission for purposes of determining sanctions, and (2) the violation 
was unintentional.

Investigation in Which No Rules Violation Was Found

    Case 1: An associate and lead attorney filed an in camera hearing 
request in a title VII five year review which did not meet the content 
requirements of 19 CFR 207.24(d), was not timely filed, and did not 
provide good cause for the untimeliness as required under 19 CFR 201.14 
and 207.24(d). It was also improperly served contrary to 19 CFR 
207.3(b). The attorneys filed a second letter seeking leave to file an 
untimely request and providing the subjects to be covered during the in 
camera session. This letter did not provide the time necessary to cover 
the subjects and was also improperly filed. Consequently, the 
Commission rejected the request for the in camera session as untimely. 
After consideration of the attorneys' responses in this rules violation 
investigation, the Commission determined that they failed to exercise 
due diligence in filing the two submissions, but decided not to 
sanction them. This decision was reached after giving consideration to 
the facts that their actions were not intentional and that no party was 
prejudiced by their actions. In addition, this was the associate's 
first appearance before the Commission.

    By order of the Commission.

    Issued: October 21, 2010.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2010-27172 Filed 10-26-10; 8:45 am]
BILLING CODE 7020-02-P