Summary of Commission Practice Relating to Administrative Protective Orders, 79481-79484 [2013-31202]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Notices]
[Pages 79481-79484]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31202]


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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'') 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 
breach investigations completed during calendar year 2012. This summary 
addresses two proceedings under section 337 of the Tariff Act of 1930. 
There were no breach investigations in title VII proceedings or rules 
violation investigations completed in 2012. 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 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, section 337 of the Tariff Act of 1930, the North American Free 
Trade Agreement (NAFTA) Article 1904.13, and safeguard-related 
provisions such as section 202 of the Trade Act of 1974, may enter into 
APOs that permit them, under strict conditions, to obtain access to BPI 
(title VII) and confidential business information (``CBI'') (safeguard-
related provisions and section 337) of other parties. See, e.g., 19 
U.S.C. 1677f; 19 CFR 207.7; 19 U.S.C. 1337(n); 19 CFR 210.5, 210.34; 19 
U.S.C. 2252(i); 19 CFR 206.17; and 19 U.S.C. 1516a(g)(7)(A); 19 CFR 
207.100, et seq. The discussion below describes APO breach 
investigations that the Commission has completed during calendar year 
2012, 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 (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); 74 FR 54071 (October 21, 
2009); 75 FR 54071 (October 27, 2010), 76 FR 78945 (December 20, 2011), 
and 77 FR 76518 (December 28, 2012). 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:


[[Page 79482]]


    (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;
    (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.

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/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 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

[[Page 79483]]

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, section 337 investigations, 
and safeguard investigations are not publicly available and are exempt 
from disclosure under the Freedom of Information Act, 5 U.S.C. 552. See 
19 U.S.C. 1677f(g), 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.
    Occasionally, the Commission conducts APOB investigations that 
involve 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 many of 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.
    Counsel participating in Commission 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 or CBI omitted 
from brackets. However, the confidential information is actually 
retrievable by manipulating codes in software. The Commission has found 
that the electronic transmission of a public document containing BPI or 
CBI in a recoverable form was a breach of the APO.
    Counsel have been cautioned to be certain that each authorized 
applicant files within 60 days of the completion of an import injury 
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.
    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: Two attorneys and a translator for a respondent breached 
the APO in a section 337 investigation when they discussed information 
with their client that included CBI belonging to the complainant. The 
discussions were based on draft rebuttal statements, drafted by the 
lead attorney from confidential witness statements, and used by the 
second attorney and the translator in their discussions with the 
client. The lead attorney received a private letter of reprimand; the 
second attorney and the translator received warning letters.
    In reaching its decision about sanctions, the Commission considered 
the mitigating factors that the lawyers and the translator had not been 
found to have violated a Commission APO in the past two years and that 
the breach had already been sanctioned by the presiding administrative 
law judge by removing the rebuttal statements from the record of the 
section 337 investigation.
    A private letter of reprimand was issued to the lead attorney 
because that attorney prepared the draft rebuttal statements which 
contained CBI and represented to the second attorney and the translator 
that all CBI had been redacted. The second attorney and the translator, 
relying on the representation of the lead attorney that all CBI had 
been redacted from the rebuttal statements, used the information in 
discussions with officials of their client, persons who were not 
authorized to have access to the CBI. Moreover, the lead attorney 
unilaterally determined that the CBI included in the rebuttal 
statements was not or should not have been labeled confidential. The 
Commission found this to be an aggravating factor since it circumvented

[[Page 79484]]

the appropriate procedure to challenge the redaction of public 
information.
    Warning letters were issued to the second attorney and to the 
translator. Although the Commission found that unauthorized persons had 
access to CBI, it found among other mitigating factors that this 
attorney and the translator had relied upon the representation of the 
first attorney that all CBI had been redacted from the draft rebuttal 
statements.
    Case 2: Two attorneys breached the APO in an appeal of the 
Commission's final determination in a section 337 investigation, before 
the U.S. Court of Appeals for the Federal Circuit, when they disclosed 
CBI in a publicly filed document. The attorneys each received warning 
letters.
    Several mitigating factors were present. The attorneys immediately 
remedied the breach of the APO, before any member of the public viewed 
the CBI. Neither attorney had previously committed an APO breach in the 
past two years.
    Although the Commission noted an aggravating factor in that the 
discovery of the breach was by a person other than the breacher, the 
Commission did not find any significant aggravating circumstances.

    Issued: December 24, 2013.

    By order of the Commission.
William R. Bishop,
Supervisory Hearing and Information Officer.
[FR Doc. 2013-31202 Filed 12-27-13; 8:45 am]
BILLING CODE 7020-02-P