Summary of Commission Practice Relating to Administrative Protective Orders, 71916-71920 [2021-27413]

Download as PDF 71916 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Notices opportunities for Indian students. Similarly, each Tribally Controlled College or University that receives financial assistance is required by Sec.107(c)(1) of the Act and 25 CFR 41 to provide a report on the use of funds received. Title of Collection: Bureau of Indian Education Tribal Colleges and Universities; Application for Grants and Annual Report Form. OMB Control Number: 1076–0018. Form Number: BIE–62107, BIE–6259, BIE Form 22, and the Third Week Monitoring Form. Type of Review: Extension of a currently approved collection. Respondents/Affected Public: Tribal college and university administrators. Total Estimated Number of Annual Respondents: 29 per year, on average. Total Estimated Number of Annual Responses: 174 per year, on average. Estimated Completion Time per Response: Varies from 1 hour to 11 hours. Total Estimated Number of Annual Burden Hours: 870 hours. Respondent’s Obligation: Required to Obtain a Benefit. Frequency of Collection: Annually. Total Estimated Annual Nonhour Burden Cost: $0. An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq). Steven Mullen, Information Collection Clearance Officer, Office of Regulatory Affairs and Collaborative Action—Indian Affairs. [FR Doc. 2021–27403 Filed 12–17–21; 8:45 am] BILLING CODE 4337–15–P INTERNATIONAL TRADE COMMISSION [Investigation No. 731–TA–1105 (Second Review)] Notice of Commission Determination To Conduct a Full Five-Year Review; Lemon Juice From Argentina United States International Trade Commission. ACTION: Notice. khammond on DSKJM1Z7X2PROD with NOTICES AGENCY: The Commission hereby gives notice that it will proceed with a full review pursuant to the Tariff Act of 1930 to determine whether termination of the suspended antidumping duty investigation on lemon juice from SUMMARY: VerDate Sep<11>2014 19:34 Dec 17, 2021 Jkt 256001 Argentina would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. A schedule for the review will be established and announced at a later date. DATES: FOR FURTHER INFORMATION CONTACT: Tyler Berard (202–205–3354), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearingimpaired persons can obtain information on this matter by contacting the Commission’s TDD terminal on 202– 205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its internet server (https:// www.usitc.gov). The public record for this review may be viewed on the Commission’s electronic docket (EDIS) at https://edis.usitc.gov . For further information concerning the conduct of this review and rules of general application, consult the Commission’s Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207). On December 6, 2021, the Commission determined that it should proceed to a full review in the subject five-year review pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. 1675(c)). The Commission found that both the domestic and respondent interested party group responses to its notice of institution (86 FR 49054, September 1, 2021) were adequate. A record of the Commissioners’ votes will be available from the Office of the Secretary and at the Commission’s website. Authority: This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to § 207.62 of the Commission’s rules. SUPPLEMENTARY INFORMATION: By order of the Commission. Issued: December 15, 2021. Lisa Barton, Secretary to the Commission. [FR Doc. 2021–27502 Filed 12–17–21; 8:45 am] PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 Summary of Commission Practice Relating to Administrative Protective Orders U.S. International Trade Commission. ACTION: Summary of Commission practice relating to administrative protective orders. AGENCY: December 6, 2021. BILLING CODE 7020–02–P INTERNATIONAL TRADE COMMISSION 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 breaches 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 (the ‘‘24-hour rule’’). This notice provides a summary of APO breach investigations completed during fiscal years 2020 and 2021. This summary addresses APO breach investigations related to proceedings under both title VII and section 337 of the Tariff Act of 1930. The Commission intends for this summary to inform representatives of parties to Commission proceedings of the specific types of APO breaches before the Commission and the corresponding types of actions that the Commission has taken. FOR FURTHER INFORMATION CONTACT: Ryan Glanzer, Office of the General Counsel, U.S. International Trade Commission, telephone (202) 708–2508. Hearing-impaired individuals may obtain information on this matter by contacting the Commission’s TDD terminal at 202–205–1810. General information concerning the Commission may also be obtained by accessing its website at https://www.usitc.gov. SUPPLEMENTARY INFORMATION: Statutory authorities for Commission investigations provide for the release of business proprietary information (‘‘BPI’’) or confidential business information (‘‘CBI’’) to certain authorized representatives in accordance with requirements set forth in Commission regulations. Such statutory and regulatory authorities include: 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. 4572(f); 19 CFR 208.22; 19 U.S.C. 1516a(g)(7)(A); and 19 CFR 207.100– SUMMARY: E:\FR\FM\20DEN1.SGM 20DEN1 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Notices 207.120. The discussion below describes APO breach investigations that the Commission completed during fiscal years 2020 and 2021, including descriptions of actions taken in response to any breaches. Since 1991, the Commission has published annually a summary of its actions in response to violations of Commission APOs and rule violations. See 85 FR 7589 (Feb. 10, 2020); 83 FR 42140 (Aug. 20, 2018); 83 FR 17843 (Apr. 24, 2018); 82 FR 29322 (June 28, 2017); 81 FR 17200 (Mar. 28, 2016); 80 FR 1664 (Jan. 13, 2015); 78 FR 79481 (Dec. 30, 2013); 77 FR 76518 (Dec. 28, 2012); 76 FR 78945 (Dec. 20, 2011); 75 FR 66127 (Oct. 27, 2010); 74 FR 54071 (Oct. 21, 2009); 73 FR 51843 (Sept. 5, 2008); 72 FR 50119 (Aug. 30, 2007); 71 FR 39355 (July 12, 2006); 70 FR 42382 (July 22, 2005); 69 FR 29972 (May 26, 2004); 68 FR 28256 (May 23, 2003); 67 FR 39425 (June 7, 2002); 66 FR 27685 (May 18, 2001); 65 FR 30434 (May 11, 2000); 64 FR 23355 (Apr. 30, 1999); 63 FR 25064 (May 6, 1998); 62 FR 13164 (Mar. 19, 1997); 61 FR 21203 (May 9, 1996); 60 FR 24880 (May 10, 1995); 59 FR 16834 (Apr. 8, 1994); 58 FR 21991 (Apr. 26, 1993); 57 FR 12335 (Apr. 9, 1992); and 56 FR 4846 (Feb. 6, 1991). This report does not provide an exhaustive list of conduct that will be deemed to be a breach of the Commission’s APOs. The Commission considers APO breach investigations on a case-by-case basis. As part of the Commission’s effort to educate practitioners about the Commission’s current APO practice, the Secretary to the Commission (‘‘Secretary’’) issued in April 2020 a fifth edition of An Introduction to Administrative Protective Order Practice in Import Injury Investigations (Pub. No. 5052). This document is available on the Commission’s website at https:// www.usitc.gov. I. In General khammond on DSKJM1Z7X2PROD with NOTICES A. Antidumping and Countervailing Duty Investigations The current APO application form for antidumping and countervailing duty investigations, which the Commission revised in May 2020, requires an APO applicant to agree to: (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 VerDate Sep<11>2014 19:34 Dec 17, 2021 Jkt 256001 (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 U.S. judicial or review pursuant to the North American Free Trade Agreement the determination resulting from such investigation 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 or similar media) 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 or similar 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) 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 (i) 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), (ii) Report promptly and confirm in writing to the Secretary any possible breach of this APO, and (iii) Acknowledge that breach of this APO may subject the authorized applicant and PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 71917 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 issued in cross-border long-haul trucking (‘‘LHT’’) investigations, conducted under the United StatesMexico-Canada Agreement Implementation Act, 19 U.S.C. 4571– 4574 (19 U.S.C. 4501 note), and safeguard investigations, conducted under the statutory authorities listed in 19 CFR 206.1 and 206.31, contain similar (though not identical) provisions. B. Section 337 Investigations APOs in section 337 investigations differ from those in title VII investigations: There is no set form like the title VII APO application, and provisions of individual APOs may differ depending on the investigation and the presiding administrative law judge. However, in practice, the provisions are often similar in scope and applied quite similarly. Any person seeking access to CBI during a section 337 investigation (including outside counsel for parties to the investigation, secretarial and support personnel E:\FR\FM\20DEN1.SGM 20DEN1 khammond on DSKJM1Z7X2PROD with NOTICES 71918 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Notices assisting such counsel, and technical experts and their staff who are employed for the purposes of the investigation) is required to read the APO, file a letter with the Secretary indicating agreement to be bound by the terms of the APO, agree not to reveal CBI to anyone other than another person permitted access by the APO, 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 may have access to 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 seek 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. Under Commission practice, if the underlying investigation is before the Commission at the time of the alleged breach or if the underlying investigation has been terminated, a person who discloses CBI, other than in a manner authorized by the APO, should report the disclosure to the Secretary. See 19 CFR 210.25, 210.34(c). The APO requires all signatories 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. VerDate Sep<11>2014 19:34 Dec 17, 2021 Jkt 256001 (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 BPI and CBI. 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 The Commission conducts APO breach investigations for potential breaches that occur in title VII, safeguard, and LHT investigations, as well as potential breaches in section 337 investigations that are before the Commission or have been terminated.1 Administrative law judges handle potential APO breaches in section 337 investigations when the breach occurred and is discovered while the underlying investigation is before the administrative law judge. The Commission may review any decision that the administrative law judge makes on sanctions in accordance with Commission regulations. See 19 CFR 210.25, 210.34(c). For Commission APO breach investigations, upon finding evidence of an APO breach or receiving information that there is reason to believe that one has occurred, the Secretary notifies relevant Commission offices that the Secretary has opened an APO breach file and that the Commission has commenced an APO breach 1 Procedures for investigations 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 a NAFTA panel or committee proceedings are set out in 19 CFR 207.100–207.120. The Commission’s Office of Unfair Import Investigations conducts those investigations initially. PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 investigation. The procedure for investigating alleged breaches of APOs has historically had two steps. First, the Commission determines whether a breach has occurred and, if so, who is responsible for it. This is done after the alleged breaching parties have been provided an opportunity to present their views on the matter. The breach investigation may conclude after this first step if: (1) The Commission determines that no breach occurred and issues a letter so stating; or (2) the Commission finds that a breach occurred but that no further action is warranted and issues a warning letter. Second, if the Commission determines that a breach occurred and that further action is warranted, the Commission will then determine what sanction, if any, to impose. The breaching parties are provided an opportunity to present their views on the appropriate sanction and any mitigating circumstances. The Commission can decide as part of either the first or second step to issue a warning letter. A warning letter is not a sanction, but the Commission will consider a warning letter as part of a subsequent APO breach investigation. The Commission has found that the two-step process can result in duplicative work for the alleged breaching party and Commission staff in some APO breach investigations. For example, parties who self-report their own breach often address mitigating circumstances and sanctions in their initial response to the Commission’s letter of inquiry on the breach. But under the Commission’s two-step process, they must await a Commission decision on breach and then submit again their views on mitigating circumstances and sanctions. To streamline this process and accelerate processing times, the Commission has begun to offer alleged breaching parties in pending and new APO breach investigations the option to voluntarily elect a one-step APO breach investigation process. Under this process, the Commission will determine simultaneously whether a breach occurred and, if so, the appropriate sanction to impose, if any. 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 [APO] depends in part on the extent to which private parties have confidence that there are effective sanctions against E:\FR\FM\20DEN1.SGM 20DEN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Notices violation.’’ H.R. Conf. Rep. 100–576, at 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 authorized under the APO actually viewed 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, safeguard, or LHT 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. See 19 CFR 207.7(a)(3)(i)(B) and (C); 19 CFR 206.17(a)(3)(i)(B) and (C); and 19 CFR 208.22(a)(3)(i)(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 Commission may also hold the attorney exercising direction or control over the economist or consultant 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, safeguard investigations, and LHT investigations are not publicly available VerDate Sep<11>2014 19:34 Dec 17, 2021 Jkt 256001 and are exempt from disclosure under the Freedom of Information Act, 5 U.S.C. 552. See, e.g., 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: (1) The APO’s prohibition on the dissemination of BPI or CBI to unauthorized persons; and (2) the APO’s requirement that the materials received under the APO be returned or destroyed and that a certificate be filed with the Commission indicating what actions were 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 or suspected violations of an APO, and the failure to adequately supervise nonlawyers in the handling of BPI/CBI. Occasionally, the Commission conducts APO breach 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 has 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. However, under Commission rule 201.15 (19 CFR 201.15), the Commission may take action against these persons for good cause shown. In all cases in which the Commission has taken such action, it decided that the non-signatory was a person who appeared regularly before the Commission, who was aware of the requirements and limitations related to APO access, and who 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 their action or inaction did not demonstrate diligent care of the APO materials, even though they appeared regularly before the Commission and were aware of the importance that the Commission places on the proper care of APO materials. PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 71919 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/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/CBI in a recoverable form was a breach of the APO. The Commission has cautioned counsel to be certain that each authorized applicant files with the Commission 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 stating that, to his or her knowledge and belief, all copies of BPI/ CBI have been returned or destroyed, and no copies of such materials 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 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 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 the Commission could hold them responsible for any failure of their former firm to return or destroy the CBI in an appropriate manner. III. Specific APO Breach Investigations A. Fiscal Year 2020 Case 1. The Commission determined that a supervisory attorney at a law firm breached an APO in a title VII investigation when he directed legal support staff at his firm to distribute two APO releases containing BPI to consultants before the filing, and the Commission’s acceptance, of the E:\FR\FM\20DEN1.SGM 20DEN1 khammond on DSKJM1Z7X2PROD with NOTICES 71920 Federal Register / Vol. 86, No. 241 / Monday, December 20, 2021 / Notices consultants’ APO amendment application. The Commission issued a warning letter to the supervisory attorney but found that the supervisory attorney’s legal support staff and the consultants had not breached the APO. Before the first APO release at issue, the supervisory attorney, an APO signatory, directed his legal assistant to file an APO amendment application for the consultants. Due to technical issues, the legal assistant did not file the APO amendment application and did not inform anyone that she never completed the filing. The legal assistant stated that she was not aware of the time sensitivity of the APO amendment application. Without confirming whether the retained consultants had been added to the APO, the supervisory attorney instructed legal support staff to provide APO release materials from two releases to the retained consultants. Legal support staff at the firm did not confirm whether the consultants had been added to the APO before transferring the APO release materials. The day after the second release, the firm’s staff discovered that the consultants’ APO amendment application had not been filed with the Commission, and staff filed the APO amendment application on the same day as this discovery. The Commission ultimately granted the application and placed the consultants on the APO. The Commission first became aware of this breach through opposing counsel. The supervisory attorney did not notify the Secretary of the potential breach until twelve days after his firm’s discovery. In determining whether to issue a sanction for the breach, the Commission considered mitigating factors, including that: (1) The breach was unintentional; (2) the supervisory attorney had not previously been found in breach of an APO; (3) he and his firm took immediate corrective action upon discovery of the breach; (4) his firm implemented new procedures to prevent similar breaches in the future; and (5) the retained consultants were eventually added to the APO, handled the BPI at all times as if they were subject to the APO, and did not disclose the BPI to unauthorized individuals. The Commission also considered the following aggravating factors: (1) The retained consultants were not authorized under the APO when they first received and viewed BPI; (2) opposing counsel, not the supervisory attorney or his firm, first notified the Commission of the breach; and (3) the supervisory attorney and his firm waited twelve days after discovering the breach to report it to the VerDate Sep<11>2014 19:34 Dec 17, 2021 Jkt 256001 Commission. Ultimately, the Commission determined that the mitigating factors outweighed the aggravating factors, and it issued a warning letter rather than a sanction. The consultants were the only nonsignatories to view the BPI, and they were eventually added to the APO. The Commission also considered whether to find the supervisory attorney’s legal support staff and the consultants in breach of the APO, and it determined not to do so. The Commission found that the supervisory attorney’s lack of oversight resulted in his staff’s failure to comply with APO procedures. He had not relayed the urgency of the APO amendment application filing, and he did not instruct his staff to ensure that the consultants were on the APO before transferring APO release materials to them. The Commission similarly determined not to find the consultants in breach because they did not know that they were not authorized under the APO to view the BPI when they received it. Further, the consultants handled the BPI at all times as if they were under the APO, and they did not share the APO materials with unauthorized individuals. B. Fiscal Year 2021 Frm 00055 Fmt 4703 By order of the Commission. Issued: December 14, 2021. Lisa Barton, Secretary to the Commission. [FR Doc. 2021–27413 Filed 12–17–21; 8:45 am] BILLING CODE 7020–02–P JUDICIAL CONFERENCE OF THE UNITED STATES Advisory Committee on Appellate Rules; Meeting of the Judicial Conference Judicial Conference of the United States. AGENCY: Case 1. The Commission determined that an attorney breached the APO in a section 337 investigation when he disclosed CBI in open court before the U.S. Court of Appeals for the Federal Circuit (‘‘CAFC’’). The Commission issued a private letter of reprimand. The attorney’s disclosure of CBI occurred during his rebuttal to opposing counsel’s opening oral argument. Opposing counsel objected to the disclosure and moved that the CAFC not post a transcript or recording. In response to opposing counsel’s objection, the attorney ended his rebuttal. A Commission attorney was present at the time of the disclosure and notified the Secretary of the breach. Following additional briefing from the parties on the disclosure, the CAFC ultimately granted opposing counsel’s motion to withhold the transcript and recording of the oral argument from its website, and no transcript or recording was ever posted. However, individuals not authorized to receive CBI under the APO were present at the CAFC oral argument at the time of the disclosure. In determining the appropriate sanction in response to the breach, the Commission considered mitigating factors, including: (1) The breach was inadvertent and unintentional; (2) the Commission was immediately aware of PO 00000 the breach due to its staff’s presence at the oral argument; and (3) the attorney took prompt corrective action to mitigate the effect of the breach. The Commission also considered the following aggravating factors: (1) Opposing counsel discovered the breach; and (2) the Commission presumed that non-signatories to the APO who were present at the CAFC oral argument heard the CBI, and the attorney did not present any evidence to the contrary. The Commission determined to issue a private letter of reprimand. Sfmt 4703 Advisory Committee on Appellate Rules; Notice of cancellation of open hearing. ACTION: The following virtual public hearing on proposed amendments to the Federal Rules of Appellate Procedure has been canceled: Appellate Rules Hearing on January 14, 2022. The announcement for this hearing was previously published in the Federal Register on August 11, 2021. SUMMARY: DATES: January 14, 2022. FOR FURTHER INFORMATION CONTACT: Bridget Healy, Esq., Acting Chief Counsel, Rules Committee Staff, Administrative Office of the U.S. Courts, Thurgood Marshall Federal Judiciary Building, One Columbus Circle NE, Suite 7–300, Washington, DC 20544, Phone (202) 502–1820, RulesCommittee_Secretary@ ao.uscourts.gov. (Authority: 28 U.S.C. 2073.) Dated: December 15, 2021. Shelly L. Cox, Management Analyst, Rules Committee Staff. [FR Doc. 2021–27468 Filed 12–17–21; 8:45 am] BILLING CODE 2210–55–P E:\FR\FM\20DEN1.SGM 20DEN1

Agencies

[Federal Register Volume 86, Number 241 (Monday, December 20, 2021)]
[Notices]
[Pages 71916-71920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27413]


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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 breaches 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 (the 
``24-hour rule''). This notice provides a summary of APO breach 
investigations completed during fiscal years 2020 and 2021. This 
summary addresses APO breach investigations related to proceedings 
under both title VII and section 337 of the Tariff Act of 1930. The 
Commission intends for this summary to inform representatives of 
parties to Commission proceedings of the specific types of APO breaches 
before the Commission and the corresponding types of actions that the 
Commission has taken.

FOR FURTHER INFORMATION CONTACT: Ryan Glanzer, Office of the General 
Counsel, U.S. International Trade Commission, telephone (202) 708-2508. 
Hearing-impaired individuals may obtain information on this matter by 
contacting the Commission's TDD terminal at 202-205-1810. General 
information concerning the Commission may also be obtained by accessing 
its website at https://www.usitc.gov.

SUPPLEMENTARY INFORMATION: Statutory authorities for Commission 
investigations provide for the release of business proprietary 
information (``BPI'') or confidential business information (``CBI'') to 
certain authorized representatives in accordance with requirements set 
forth in Commission regulations. Such statutory and regulatory 
authorities include: 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. 
4572(f); 19 CFR 208.22; 19 U.S.C. 1516a(g)(7)(A); and 19 CFR 207.100-

[[Page 71917]]

207.120. The discussion below describes APO breach investigations that 
the Commission completed during fiscal years 2020 and 2021, including 
descriptions of actions taken in response to any breaches.
    Since 1991, the Commission has published annually a summary of its 
actions in response to violations of Commission APOs and rule 
violations. See 85 FR 7589 (Feb. 10, 2020); 83 FR 42140 (Aug. 20, 
2018); 83 FR 17843 (Apr. 24, 2018); 82 FR 29322 (June 28, 2017); 81 FR 
17200 (Mar. 28, 2016); 80 FR 1664 (Jan. 13, 2015); 78 FR 79481 (Dec. 
30, 2013); 77 FR 76518 (Dec. 28, 2012); 76 FR 78945 (Dec. 20, 2011); 75 
FR 66127 (Oct. 27, 2010); 74 FR 54071 (Oct. 21, 2009); 73 FR 51843 
(Sept. 5, 2008); 72 FR 50119 (Aug. 30, 2007); 71 FR 39355 (July 12, 
2006); 70 FR 42382 (July 22, 2005); 69 FR 29972 (May 26, 2004); 68 FR 
28256 (May 23, 2003); 67 FR 39425 (June 7, 2002); 66 FR 27685 (May 18, 
2001); 65 FR 30434 (May 11, 2000); 64 FR 23355 (Apr. 30, 1999); 63 FR 
25064 (May 6, 1998); 62 FR 13164 (Mar. 19, 1997); 61 FR 21203 (May 9, 
1996); 60 FR 24880 (May 10, 1995); 59 FR 16834 (Apr. 8, 1994); 58 FR 
21991 (Apr. 26, 1993); 57 FR 12335 (Apr. 9, 1992); and 56 FR 4846 (Feb. 
6, 1991). This report does not provide an exhaustive list of conduct 
that will be deemed to be a breach of the Commission's APOs. The 
Commission considers APO breach investigations on a case-by-case basis.
    As part of the Commission's effort to educate practitioners about 
the Commission's current APO practice, the Secretary to the Commission 
(``Secretary'') issued in April 2020 a fifth edition of An Introduction 
to Administrative Protective Order Practice in Import Injury 
Investigations (Pub. No. 5052). This document is available on the 
Commission's website at https://www.usitc.gov.

I. In General

A. Antidumping and Countervailing Duty Investigations

    The current APO application form for antidumping and countervailing 
duty investigations, which the Commission revised in May 2020, requires 
an APO applicant to agree to:

    (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 U.S. judicial or review pursuant to 
the North American Free Trade Agreement the determination resulting 
from such investigation 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 or 
similar media) 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 or similar 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) 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
    (i) 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),
    (ii) Report promptly and confirm in writing to the Secretary any 
possible breach of this APO, and
    (iii) 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 issued in cross-border long-haul trucking (``LHT'') 
investigations, conducted under the United States-Mexico-Canada 
Agreement Implementation Act, 19 U.S.C. 4571-4574 (19 U.S.C. 4501 
note), and safeguard investigations, conducted under the statutory 
authorities listed in 19 CFR 206.1 and 206.31, contain similar (though 
not identical) provisions.

B. Section 337 Investigations

    APOs in section 337 investigations differ from those in title VII 
investigations: There is no set form like the title VII APO 
application, and provisions of individual APOs may differ depending on 
the investigation and the presiding administrative law judge. However, 
in practice, the provisions are often similar in scope and applied 
quite similarly. Any person seeking access to CBI during a section 337 
investigation (including outside counsel for parties to the 
investigation, secretarial and support personnel

[[Page 71918]]

assisting such counsel, and technical experts and their staff who are 
employed for the purposes of the investigation) is required to read the 
APO, file a letter with the Secretary indicating agreement to be bound 
by the terms of the APO, agree not to reveal CBI to anyone other than 
another person permitted access by the APO, 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 may have access to 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 seek 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. Under Commission practice, if the 
underlying investigation is before the Commission at the time of the 
alleged breach or if the underlying investigation has been terminated, 
a person who discloses CBI, other than in a manner authorized by the 
APO, should report the disclosure to the Secretary. See 19 CFR 210.25, 
210.34(c). The APO requires all signatories 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 BPI and CBI. 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

    The Commission conducts APO breach investigations for potential 
breaches that occur in title VII, safeguard, and LHT investigations, as 
well as potential breaches in section 337 investigations that are 
before the Commission or have been terminated.\1\ Administrative law 
judges handle potential APO breaches in section 337 investigations when 
the breach occurred and is discovered while the underlying 
investigation is before the administrative law judge. The Commission 
may review any decision that the administrative law judge makes on 
sanctions in accordance with Commission regulations. See 19 CFR 210.25, 
210.34(c).
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    \1\ Procedures for investigations 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 a NAFTA panel or committee proceedings are set out in 
19 CFR 207.100-207.120. The Commission's Office of Unfair Import 
Investigations conducts those investigations initially.
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    For Commission APO breach investigations, upon finding evidence of 
an APO breach or receiving information that there is reason to believe 
that one has occurred, the Secretary notifies relevant Commission 
offices that the Secretary has opened an APO breach file and that the 
Commission has commenced an APO breach investigation. The procedure for 
investigating alleged breaches of APOs has historically had two steps. 
First, the Commission determines whether a breach has occurred and, if 
so, who is responsible for it. This is done after the alleged breaching 
parties have been provided an opportunity to present their views on the 
matter. The breach investigation may conclude after this first step if: 
(1) The Commission determines that no breach occurred and issues a 
letter so stating; or (2) the Commission finds that a breach occurred 
but that no further action is warranted and issues a warning letter. 
Second, if the Commission determines that a breach occurred and that 
further action is warranted, the Commission will then determine what 
sanction, if any, to impose. The breaching parties are provided an 
opportunity to present their views on the appropriate sanction and any 
mitigating circumstances. The Commission can decide as part of either 
the first or second step to issue a warning letter. A warning letter is 
not a sanction, but the Commission will consider a warning letter as 
part of a subsequent APO breach investigation.
    The Commission has found that the two-step process can result in 
duplicative work for the alleged breaching party and Commission staff 
in some APO breach investigations. For example, parties who self-report 
their own breach often address mitigating circumstances and sanctions 
in their initial response to the Commission's letter of inquiry on the 
breach. But under the Commission's two-step process, they must await a 
Commission decision on breach and then submit again their views on 
mitigating circumstances and sanctions. To streamline this process and 
accelerate processing times, the Commission has begun to offer alleged 
breaching parties in pending and new APO breach investigations the 
option to voluntarily elect a one-step APO breach investigation 
process. Under this process, the Commission will determine 
simultaneously whether a breach occurred and, if so, the appropriate 
sanction to impose, if any.
    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 [APO] depends in part on the 
extent to which private parties have confidence that there are 
effective sanctions against

[[Page 71919]]

violation.'' H.R. Conf. Rep. 100-576, at 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 authorized 
under the APO actually viewed 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, safeguard, or LHT 
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. See 19 CFR 207.7(a)(3)(i)(B) 
and (C); 19 CFR 206.17(a)(3)(i)(B) and (C); and 19 CFR 
208.22(a)(3)(i)(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 Commission may also hold the 
attorney exercising direction or control over the economist or 
consultant 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, 
safeguard investigations, and LHT investigations are not publicly 
available and are exempt from disclosure under the Freedom of 
Information Act, 5 U.S.C. 552. See, e.g., 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: (1) The APO's prohibition on the dissemination of 
BPI or CBI to unauthorized persons; and (2) the APO's requirement that 
the materials received under the APO be returned or destroyed and that 
a certificate be filed with the Commission indicating what actions were 
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 or suspected violations of an APO, and the failure to 
adequately supervise non-lawyers in the handling of BPI/CBI.
    Occasionally, the Commission conducts APO breach 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 has 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. 
However, under Commission rule 201.15 (19 CFR 201.15), the Commission 
may take action against these persons for good cause shown. In all 
cases in which the Commission has taken such action, it decided that 
the non-signatory was a person who appeared regularly before the 
Commission, who was aware of the requirements and limitations related 
to APO access, and who 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 their action or inaction did 
not demonstrate diligent care of the APO materials, even though they 
appeared regularly before the Commission and were aware of the 
importance that the Commission places on the proper 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/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/CBI in a 
recoverable form was a breach of the APO.
    The Commission has cautioned counsel to be certain that each 
authorized applicant files with the Commission 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 stating that, to his or her knowledge and belief, all 
copies of BPI/CBI have been returned or destroyed, and no copies of 
such materials 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 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 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 the Commission could hold them 
responsible for any failure of their former firm to return or destroy 
the CBI in an appropriate manner.

III. Specific APO Breach Investigations

A. Fiscal Year 2020

    Case 1. The Commission determined that a supervisory attorney at a 
law firm breached an APO in a title VII investigation when he directed 
legal support staff at his firm to distribute two APO releases 
containing BPI to consultants before the filing, and the Commission's 
acceptance, of the

[[Page 71920]]

consultants' APO amendment application. The Commission issued a warning 
letter to the supervisory attorney but found that the supervisory 
attorney's legal support staff and the consultants had not breached the 
APO.
    Before the first APO release at issue, the supervisory attorney, an 
APO signatory, directed his legal assistant to file an APO amendment 
application for the consultants. Due to technical issues, the legal 
assistant did not file the APO amendment application and did not inform 
anyone that she never completed the filing. The legal assistant stated 
that she was not aware of the time sensitivity of the APO amendment 
application. Without confirming whether the retained consultants had 
been added to the APO, the supervisory attorney instructed legal 
support staff to provide APO release materials from two releases to the 
retained consultants. Legal support staff at the firm did not confirm 
whether the consultants had been added to the APO before transferring 
the APO release materials. The day after the second release, the firm's 
staff discovered that the consultants' APO amendment application had 
not been filed with the Commission, and staff filed the APO amendment 
application on the same day as this discovery. The Commission 
ultimately granted the application and placed the consultants on the 
APO.
    The Commission first became aware of this breach through opposing 
counsel. The supervisory attorney did not notify the Secretary of the 
potential breach until twelve days after his firm's discovery.
    In determining whether to issue a sanction for the breach, the 
Commission considered mitigating factors, including that: (1) The 
breach was unintentional; (2) the supervisory attorney had not 
previously been found in breach of an APO; (3) he and his firm took 
immediate corrective action upon discovery of the breach; (4) his firm 
implemented new procedures to prevent similar breaches in the future; 
and (5) the retained consultants were eventually added to the APO, 
handled the BPI at all times as if they were subject to the APO, and 
did not disclose the BPI to unauthorized individuals. The Commission 
also considered the following aggravating factors: (1) The retained 
consultants were not authorized under the APO when they first received 
and viewed BPI; (2) opposing counsel, not the supervisory attorney or 
his firm, first notified the Commission of the breach; and (3) the 
supervisory attorney and his firm waited twelve days after discovering 
the breach to report it to the Commission. Ultimately, the Commission 
determined that the mitigating factors outweighed the aggravating 
factors, and it issued a warning letter rather than a sanction. The 
consultants were the only non-signatories to view the BPI, and they 
were eventually added to the APO.
    The Commission also considered whether to find the supervisory 
attorney's legal support staff and the consultants in breach of the 
APO, and it determined not to do so. The Commission found that the 
supervisory attorney's lack of oversight resulted in his staff's 
failure to comply with APO procedures. He had not relayed the urgency 
of the APO amendment application filing, and he did not instruct his 
staff to ensure that the consultants were on the APO before 
transferring APO release materials to them. The Commission similarly 
determined not to find the consultants in breach because they did not 
know that they were not authorized under the APO to view the BPI when 
they received it. Further, the consultants handled the BPI at all times 
as if they were under the APO, and they did not share the APO materials 
with unauthorized individuals.

B. Fiscal Year 2021

    Case 1. The Commission determined that an attorney breached the APO 
in a section 337 investigation when he disclosed CBI in open court 
before the U.S. Court of Appeals for the Federal Circuit (``CAFC''). 
The Commission issued a private letter of reprimand.
    The attorney's disclosure of CBI occurred during his rebuttal to 
opposing counsel's opening oral argument. Opposing counsel objected to 
the disclosure and moved that the CAFC not post a transcript or 
recording. In response to opposing counsel's objection, the attorney 
ended his rebuttal. A Commission attorney was present at the time of 
the disclosure and notified the Secretary of the breach. Following 
additional briefing from the parties on the disclosure, the CAFC 
ultimately granted opposing counsel's motion to withhold the transcript 
and recording of the oral argument from its website, and no transcript 
or recording was ever posted. However, individuals not authorized to 
receive CBI under the APO were present at the CAFC oral argument at the 
time of the disclosure.
    In determining the appropriate sanction in response to the breach, 
the Commission considered mitigating factors, including: (1) The breach 
was inadvertent and unintentional; (2) the Commission was immediately 
aware of the breach due to its staff's presence at the oral argument; 
and (3) the attorney took prompt corrective action to mitigate the 
effect of the breach. The Commission also considered the following 
aggravating factors: (1) Opposing counsel discovered the breach; and 
(2) the Commission presumed that non-signatories to the APO who were 
present at the CAFC oral argument heard the CBI, and the attorney did 
not present any evidence to the contrary. The Commission determined to 
issue a private letter of reprimand.

    By order of the Commission.

    Issued: December 14, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-27413 Filed 12-17-21; 8:45 am]
BILLING CODE 7020-02-P