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

Agencies

• INTERNATIONAL TRADE COMMISSION

[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