Summary of Commission Practice Relating to Administrative Protective Orders, 42140-42144 [2018-17848]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 83, Number 161 (Monday, August 20, 2018)]
[Notices]
[Pages 42140-42144]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17848]


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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 published in the Federal Register reports 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''). This notice provides a summary of breach 
investigations (APOB investigations) completed during calendar year 
2017. This summary addresses an APOB investigation related to a 
proceeding under title VII of the Tariff Act of 1930. 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: Ron Traud, Office of the General 
Counsel, U.S. International Trade Commission, telephone (202) 205-3427. 
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 website (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 or non-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; 19 U.S.C. 
1516a(g)(7)(A); and 19 CFR 207.100, et. seq. The discussion below 
describes an APO breach investigation that the Commission has completed 
during calendar year 2017, including a description of actions taken in 
response to this breach.
    Since 1991, the Commission has published annually a summary of its 
actions in response to violations of

[[Page 42141]]

Commission APOs and rule violations. 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 22, 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 66127 (October 27, 2010), 
76 FR 78945 (December 20, 2011), 77 FR 76518 (December 28, 2012), 78 FR 
79481 (December 30, 2013), 80 FR 1664 (January 13, 2015), 81 FR 17200 
(March 28, 2016), and 82 FR 29322 (June 28, 2017). 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 
website at https://www.usitc.gov.

I. In General

A. Antidumping and Countervailing Duty Investigations

    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;
    (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 form for antidumping and countervailing duty investigations 
also provides for the return or destruction of the BPI obtained under 
the APO on the order of the Secretary, at the conclusion of the 
investigation, or at the completion of Judicial Review. The BPI 
disclosed to an authorized applicant under an APO during the 
preliminary phase of the investigation generally may remain in the 
applicant's possession during the final phase of the investigation.
    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 safeguard investigations contain similar though not 
identical provisions.

B. Section 337 Investigations

    The APOs in section 337 investigations differ from those in title 
VII investigations as there is no set form and provisions may differ 
depending on the investigation and the presiding administrative law 
judge. However, in practice, the provisions are often quite similar. 
Any person seeking access to

[[Page 42142]]

CBI during a section 337 investigation (including outside counsel for 
parties to the investigation, secretarial and support personnel 
assisting such counsel, and technical experts and their staff who are 
employed for the purposes of the investigation) is required to read the 
APO, agree to its terms by letter filed with the Secretary of the 
Commission indicating that he or she agrees to be bound by the terms of 
the Order, agree not to reveal CBI to anyone other than another person 
permitted access by the Order, and agree to utilize the CBI solely for 
the purposes of that investigation.
    In general, an APO in a section 337 investigation will define what 
kind of information is CBI and direct how CBI is to be designated and 
protected. The APO will state which persons will have access to the CBI 
and which of those persons must sign onto the APO. The APO will provide 
instructions on how CBI is to be maintained and protected by labeling 
documents and filing transcripts under seal. It will provide 
protections for the suppliers of CBI by notifying them of a Freedom of 
Information Act request for the CBI and providing a procedure for the 
supplier to take action to prevent the release of the information. 
There are provisions for disputing the designation of CBI and a 
procedure for resolving such disputes. Under the APO, suppliers of CBI 
are given the opportunity to object to the release of the CBI to a 
proposed expert. The APO requires a person who discloses CBI, other 
than in a manner authorized by the APO, to provide all pertinent facts 
to the supplier of the CBI and to the administrative law judge and to 
make every effort to prevent further disclosure. The APO requires all 
parties to the APO to either return to the suppliers or destroy the 
originals and all copies of the CBI obtained during the investigation.
    The Commission's regulations provide for certain sanctions to be 
imposed if the APO is violated by a person subject to its restrictions. 
The names of the persons being investigated for violating an APO are 
kept confidential unless the sanction imposed is a public letter of 
reprimand. 19 CFR 210.34(c)(1). The possible sanctions are:
    (1) An official reprimand by the Commission.
    (2) Disqualification from or limitation of further participation in 
a pending investigation.
    (3) Temporary or permanent disqualification from practicing in any 
capacity before the Commission pursuant to 19 CFR 201.15(a).
    (4) Referral of the facts underlying the violation to the 
appropriate licensing authority in the jurisdiction in which the 
individual is licensed to practice.
    (5) Making adverse inferences and rulings against a party involved 
in the violation of the APO or such other action that may be 
appropriate. 19 CFR 210.34(c)(3).
    Commission employees are not signatories to the Commission's APOs 
and do not obtain access to BPI or CBI 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 facts and obtain 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. However, a warning letter is considered in 
a subsequent APO breach investigation.
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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 three basic interests: (a) 
Preserving the confidence of submitters of BPI/CBI that the Commission 
is a reliable protector of BPI/CBI; (b) disciplining breachers; and (c) 
deterring future violations. As the Conference Report to the Omnibus 
Trade and Competitiveness Act of 1988 observed, ``[T]he effective 
enforcement of limited disclosure under administrative protective order 
depends in part on the extent to which private parties have confidence 
that there are effective sanctions against violation.'' H.R. Conf. Rep. 
No. 576, 100th Cong., 1st Sess. 623 (1988).
    The Commission has worked to develop consistent jurisprudence, not 
only in determining whether a breach has occurred, but also in 
selecting an appropriate response. In determining the appropriate 
response, the Commission generally considers mitigating factors such as 
the unintentional nature of the breach, the lack of prior breaches 
committed by the breaching party, the corrective measures taken by the 
breaching party, and the promptness with which the breaching party 
reported the violation to the Commission. The Commission also considers 
aggravating circumstances, especially whether persons not under the APO 
actually read the BPI/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

[[Page 42143]]

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. In section 337 
investigations, technical experts and their staff who are employed for 
the purposes of the investigation are required to sign onto the APO and 
agree to comply with its provisions.
    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), 19 CFR 210.34(c).
    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/CBI 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/CBI. 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.
    Attorneys who are signatories to the APO representing clients in a 
section 337 investigation should inform the administrative law judge 
and the Commission's secretary if there are any changes to the 
information that was provided in the application for access to the CBI. 
This is similar to the requirement to update an applicant's information 
in title VII investigations.
    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 APO Breach Investigations

    Case 1. The Commission determined that an attorney representing a 
party in a title VII investigation breached an APO when he failed to 
adequately supervise an employee who (1) made BPI available to 
unauthorized persons (both on CDs and on EDIS) and (2) failed to 
properly label CDs as containing BPI.
    The attorney, an APO signatory, represented a party in a title VII 
investigation. The attorney supervised an employee (who was not an APO 
signatory) in preparing, filing, and serving the public version of a 
prehearing brief, but did not instruct that employee regarding the 
format in which the public version of the brief was to be filed and 
served. The hard copy of the brief had been redacted of BPI. In 
preparing the electronic version of the public version of the brief, 
the employee separately prepared the narrative and exhibits portions of 
the brief and then then electronically combined those two portions. The 
exhibits portion was prepared by manually scanning the redacted hard 
copy of the exhibits. However, the narrative portion was prepared by 
using Microsoft Word functionality and then converting the redacted 
document to a .pdf format, a process that made BPI available in the 
metadata. After combining the two portions, the employee filed the 
document on EDIS and also saved the file to CDs, which were not labeled 
as containing BPI. The CDs were then served on the parties on the 
Commission's public service list for the investigation, which included 
six persons who were not authorized to receive BPI. Thereafter, the 
attorney was informed by counsel for another party that the public 
version of the brief contained BPI in the metadata of the electronic 
version of the document. Personnel at the firm immediately contacted 
the Commission's Secretary's office and each recipient of the public 
version of the prehearing brief, and asked them to destroy all 
electronic versions of that document. The brief was available on EDIS 
for approximately six days before its removal.
    The attorney, who is responsible for the employee's compliance with 
the APO, breached the APO because, (1) even though the filing and 
service of the public version of the prehearing brief may not have 
resulted in the actual disclosure of BPI to unauthorized persons, BPI 
was made available to unauthorized persons, and (2) the CDs that were 
served on the parties on the

[[Page 42144]]

Commission's public service list were not labeled as containing BPI.
    In determining the appropriate action in response to the breach, 
the Commission considered mitigating factors, including that (1) the 
breach was unintentional and due to a technical oversight; (2) the 
attorney had not been found to have breached an APO over the past two 
years; (3) the attorney took immediate corrective measures upon 
learning of the disclosure by immediately contacting the Secretary's 
Office and the recipients of the brief; and (4) the attorney promptly 
reported the violation to the Commission. The Commission determined 
that no aggravating factors were present. The Commission issued a 
private warning letter to the attorney.

    By order of the Commission.

    Issued: August 14, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-17848 Filed 8-17-18; 8:45 am]
 BILLING CODE 7020-02-P