[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Notices]
[Pages 79481-79484]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-31202]
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INTERNATIONAL TRADE COMMISSION
Summary of Commission Practice Relating to Administrative
Protective Orders
AGENCY: U.S. International Trade Commission.
ACTION: Summary of Commission practice relating to administrative
protective orders
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SUMMARY: Since February 1991, the U.S. International Trade Commission
(``Commission'') has issued an annual report on the status of its
practice with respect to violations of its administrative protective
orders (``APOs'') under title VII of the Tariff Act of 1930, in
response to a direction contained in the Conference Report to the
Customs and Trade Act of 1990. Over time, the Commission has added to
its report discussions of APO breaches in Commission proceedings other
than under title VII and violations of the Commission's rules including
the rule on bracketing business proprietary information (``BPI'') (the
``24-hour rule''), 19 CFR 207.3(c). This notice provides a summary of
breach investigations completed during calendar year 2012. This summary
addresses two proceedings under section 337 of the Tariff Act of 1930.
There were no breach investigations in title VII proceedings or rules
violation investigations completed in 2012. The Commission intends that
this report inform representatives of parties to Commission proceedings
as to some specific types of APO breaches encountered by the Commission
and the corresponding types of actions the Commission has taken.
FOR FURTHER INFORMATION CONTACT: Carol McCue Verratti, Esq., Office of
the General Counsel, U.S. International Trade Commission, telephone
(202) 205-3088. Hearing impaired individuals are advised that
information on this matter can be obtained by contacting the
Commission's TDD terminal at (202) 205-1810. General information
concerning the Commission can also be obtained by accessing its Web
site (http://www.usitc.gov).
SUPPLEMENTARY INFORMATION: Representatives of parties to investigations
or other proceedings conducted under title VII of the Tariff Act of
1930, section 337 of the Tariff Act of 1930, the North American Free
Trade Agreement (NAFTA) Article 1904.13, and safeguard-related
provisions such as section 202 of the Trade Act of 1974, may enter into
APOs that permit them, under strict conditions, to obtain access to BPI
(title VII) and confidential business information (``CBI'') (safeguard-
related provisions and section 337) of other parties. See, e.g., 19
U.S.C. 1677f; 19 CFR 207.7; 19 U.S.C. 1337(n); 19 CFR 210.5, 210.34; 19
U.S.C. 2252(i); 19 CFR 206.17; and 19 U.S.C. 1516a(g)(7)(A); 19 CFR
207.100, et seq. The discussion below describes APO breach
investigations that the Commission has completed during calendar year
2012, including a description of actions taken in response to these
breaches.
Since 1991, the Commission has published annually a summary of its
actions in response to violations of Commission APOs and the 24-hour
rule. See 56 FR 4846 (February 6, 1991); 57 FR 12335 (April 9, 1992);
58 FR 21991 (April 26, 1993); 59 FR 16834 (April 8, 1994); 60 FR 24880
(May 10, 1995); 61 FR 21203 (May 9, 1996); 62 FR 13164 (March 19,
1997); 63 FR 25064 (May 6, 1998); 64 FR 23355 (April 30, 1999); 65 FR
30434 (May 11, 2000); 66 FR 27685 (May 18, 2001); 67 FR 39425 (June 7,
2002); 68 FR 28256 (May 23, 2003); 69 FR 29972 (May 26, 2004); 70 FR
42382 (July 25, 2005); 71 FR 39355 (July 12, 2006); 72 FR 50119 (August
30, 2007); 73 FR 51843 (September 5, 2008); 74 FR 54071 (October 21,
2009); 75 FR 54071 (October 27, 2010), 76 FR 78945 (December 20, 2011),
and 77 FR 76518 (December 28, 2012). This report does not provide an
exhaustive list of conduct that will be deemed to be a breach of the
Commission's APOs. APO breach inquiries are considered on a case-by-
case basis. As part of the effort to educate practitioners about the
Commission's current APO practice, the Commission Secretary issued in
March 2005 a fourth edition of An Introduction to Administrative
Protective Order Practice in Import Injury Investigations (Pub. No.
3755). This document is available upon request from the Office of the
Secretary, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, tel. (202) 205-2000 and on the Commission's Web
site at http://www.usitc.gov.
I. In General
The current APO form for antidumping and countervailing duty
investigations, which was revised in March 2005, requires the applicant
to swear that he or she will:
[[Page 79482]]
(1) Not divulge any of the BPI disclosed under this APO or
otherwise obtained in this investigation and not otherwise available
to him or her, to any person other than--
(i) Personnel of the Commission concerned with the
investigation,
(ii) The person or agency from whom the BPI was obtained,
(iii) A person whose application for disclosure of BPI under
this APO has been granted by the Secretary, and
(iv) Other persons, such as paralegals and clerical staff, who
(a) are employed or supervised by and under the direction and
control of the authorized applicant or another authorized applicant
in the same firm whose application has been granted; (b) have a need
thereof in connection with the investigation; (c) are not involved
in competitive decision making for an interested party which is a
party to the investigation; and (d) have signed the acknowledgment
for clerical personnel in the form attached hereto (the authorized
applicant shall also sign such acknowledgment and will be deemed
responsible for such persons' compliance with this APO);
(2) Use such BPI solely for the purposes of the above-captioned
Commission investigation or for judicial or binational panel review
of such Commission investigation;
(3) Not consult with any person not described in paragraph (1)
concerning BPI disclosed under this APO or otherwise obtained in
this investigation without first having received the written consent
of the Secretary and the party or the representative of the party
from whom such BPI was obtained;
(4) Whenever materials e.g., documents, computer disks, etc.
containing such BPI are not being used, store such material in a
locked file cabinet, vault, safe, or other suitable container (N.B.:
storage of BPI on so-called hard disk computer media is to be
avoided, because mere erasure of data from such media may not
irrecoverably destroy the BPI and may result in violation of
paragraph C of this APO);
(5) Serve all materials containing BPI disclosed under this APO
as directed by the Secretary and pursuant to section 207.7(f) of the
Commission's rules;
(6) Transmit each document containing BPI disclosed under this
APO:
(i) with a cover sheet identifying the document as containing
BPI,
(ii) with all BPI enclosed in brackets and each page warning
that the document contains BPI,
(iii) if the document is to be filed by a deadline, with each
page marked ``Bracketing of BPI not final for one business day after
date of filing,'' and
(iv) if by mail, within two envelopes, the inner one sealed and
marked ``Business Proprietary Information--To be opened only by
[name of recipient]'', and the outer one sealed and not marked as
containing BPI;
(7) Comply with the provision of this APO and section 207.7 of
the Commission's rules;
(8) Make true and accurate representations in the authorized
applicant's application and promptly notify the Secretary of any
changes that occur after the submission of the application and that
affect the representations made in the application (e.g., change in
personnel assigned to the investigation);
(9) Report promptly and confirm in writing to the Secretary any
possible breach of this APO; and
(10) Acknowledge that breach of this APO may subject the
authorized applicant and other persons to such sanctions or other
actions as the Commission deems appropriate, including the
administrative sanctions and actions set out in this APO.
The APO further provides that breach of an APO may subject an
applicant to:
(1) Disbarment from practice in any capacity before the
Commission along with such person's partners, associates, employer,
and employees, for up to seven years following publication of a
determination that the order has been breached;
(2) Referral to the United States Attorney;
(3) In the case of an attorney, accountant, or other
professional, referral to the ethics panel of the appropriate
professional association;
(4) Such other administrative sanctions as the Commission
determines to be appropriate, including public release of, or
striking from the record any information or briefs submitted by, or
on behalf of, such person or the party he represents; denial of
further access to business proprietary information in the current or
any future investigations before the Commission, and issuance of a
public or private letter of reprimand; and
(5) Such other actions, including but not limited to, a warning
letter, as the Commission determines to be appropriate.
APOs in investigations other than those under title VII contain
similar, though not identical, provisions.
Commission employees are not signatories to the Commission's APOs
and do not obtain access to BPI through APO procedures. Consequently,
they are not subject to the requirements of the APO with respect to the
handling of CBI and BPI. However, Commission employees are subject to
strict statutory and regulatory constraints concerning BPI and CBI, and
face potentially severe penalties for noncompliance. See 18 U.S.C.
1905; title 5, U.S. Code; and Commission personnel policies
implementing the statutes. Although the Privacy Act (5 U.S.C. 552a)
limits the Commission's authority to disclose any personnel action
against agency employees, this should not lead the public to conclude
that no such actions have been taken.
II. Investigations of Alleged APO Breaches
Upon finding evidence of an APO breach or receiving information
that there is a reason to believe one has occurred, the Commission
Secretary notifies relevant offices in the agency that an APO breach
investigation has commenced and that an APO breach investigation file
has been opened. Upon receiving notification from the Secretary, the
Office of the General Counsel (``OGC'') prepares a letter of inquiry to
be sent to the possible breacher over the Secretary's signature to
ascertain the possible breacher's views on whether a breach has
occurred.\1\ If, after reviewing the response and other relevant
information, the Commission determines that a breach has occurred, the
Commission often issues a second letter asking the breacher to address
the questions of mitigating circumstances and possible sanctions or
other actions. The Commission then determines what action to take in
response to the breach. In some cases, the Commission determines that,
although a breach has occurred, sanctions are not warranted, and
therefore finds it unnecessary to issue a second letter concerning what
sanctions might be appropriate. Instead, it issues a warning letter to
the individual. A warning letter is not considered to be a sanction.
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\1\ Procedures for inquiries to determine whether a prohibited
act such as a breach has occurred and for imposing sanctions for
violation of the provisions of a protective order issued during
NAFTA panel or committee proceedings are set out in 19 CFR 207.100-
207.120. Those investigations are initially conducted by the
Commission's Office of Unfair Import Investigations.
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Sanctions for APO violations serve two basic interests: (a)
Preserving the confidence of submitters of BPI/CBI that the Commission
is a reliable protector of BPI/CBI; and (b) disciplining breachers and
deterring future violations. As the Conference Report to the Omnibus
Trade and Competitiveness Act of 1988 observed, ``[T]he effective
enforcement of limited disclosure under administrative protective order
depends in part on the extent to which private parties have confidence
that there are effective sanctions against violation.'' H.R. Conf. Rep.
No. 576, 100th Cong., 1st Sess. 623 (1988).
The Commission has worked to develop consistent jurisprudence, not
only in determining whether a breach has occurred, but also in
selecting an appropriate response. In determining the appropriate
response, the Commission generally considers mitigating factors such as
the unintentional nature of the breach, the lack of prior breaches
committed by the breaching party, the corrective measures taken by the
breaching party, and the promptness with which the breaching party
reported the violation to the Commission. The Commission also considers
aggravating circumstances, especially whether persons not under
[[Page 79483]]
the APO actually read the BPI/CBI. The Commission considers whether
there have been prior breaches by the same person or persons in other
investigations and multiple breaches by the same person or persons in
the same investigation.
The Commission's rules permit an economist or consultant to obtain
access to BPI/CBI under the APO in a title VII or safeguard
investigation if the economist or consultant is under the direction and
control of an attorney under the APO, or if the economist or consultant
appears regularly before the Commission and represents an interested
party who is a party to the investigation. 19 CFR 207.7(a)(3)(B) and
(C); 19 CFR 206.17(a)(3)(B) and (C). Economists and consultants who
obtain access to BPI/CBI under the APO under the direction and control
of an attorney nonetheless remain individually responsible for
complying with the APO. In appropriate circumstances, for example, an
economist under the direction and control of an attorney may be held
responsible for a breach of the APO by failing to redact APO
information from a document that is subsequently filed with the
Commission and served as a public document. This is so even though the
attorney exercising direction or control over the economist or
consultant may also be held responsible for the breach of the APO.
The records of Commission investigations of alleged APO breaches in
antidumping and countervailing duty cases, section 337 investigations,
and safeguard investigations are not publicly available and are exempt
from disclosure under the Freedom of Information Act, 5 U.S.C. 552. See
19 U.S.C. 1677f(g), 19 U.S.C. 1333(h).
The two types of breaches most frequently investigated by the
Commission involve the APO's prohibition on the dissemination of BPI or
CBI to unauthorized persons and the APO's requirement that the
materials received under the APO be returned or destroyed and that a
certificate be filed indicating which action was taken after the
termination of the investigation or any subsequent appeals of the
Commission's determination. The dissemination of BPI/CBI usually occurs
as the result of failure to delete BPI/CBI from public versions of
documents filed with the Commission or transmission of proprietary
versions of documents to unauthorized recipients. Other breaches have
included the failure to bracket properly BPI/CBI in proprietary
documents filed with the Commission, the failure to report immediately
known violations of an APO, and the failure to adequately supervise
non-lawyers in the handling of BPI/CBI.
Occasionally, the Commission conducts APOB investigations that
involve members of a law firm or consultants working with a firm who
were granted access to APO materials by the firm although they were not
APO signatories. In many of these cases, the firm and the person using
the BPI mistakenly believed an APO application had been filed for that
person. The Commission determined in all of these cases that the person
who was a non-signatory, and therefore did not agree to be bound by the
APO, could not be found to have breached the APO. Action could be taken
against these persons, however, under Commission rule 201.15 (19 CFR
201.15) for good cause shown. In all cases in which action was taken,
the Commission decided that the non-signatory was a person who appeared
regularly before the Commission and was aware of the requirements and
limitations related to APO access and should have verified his or her
APO status before obtaining access to and using the BPI. The Commission
notes that section 201.15 may also be available to issue sanctions to
attorneys or agents in different factual circumstances in which they
did not technically breach the APO, but when their actions or inactions
did not demonstrate diligent care of the APO materials even though they
appeared regularly before the Commission and were aware of the
importance the Commission placed on the care of APO materials.
Counsel participating in Commission investigations have reported to
the Commission potential breaches involving the electronic transmission
of public versions of documents. In these cases, the document
transmitted appears to be a public document with BPI or CBI omitted
from brackets. However, the confidential information is actually
retrievable by manipulating codes in software. The Commission has found
that the electronic transmission of a public document containing BPI or
CBI in a recoverable form was a breach of the APO.
Counsel have been cautioned to be certain that each authorized
applicant files within 60 days of the completion of an import injury
investigation or at the conclusion of judicial or binational review of
the Commission's determination a certificate that to his or her
knowledge and belief all copies of BPI/CBI have been returned or
destroyed and no copies of such material have been made available to
any person to whom disclosure was not specifically authorized. This
requirement applies to each attorney, consultant, or expert in a firm
who has been granted access to BPI/CBI. One firm-wide certificate is
insufficient.
In addition, attorneys who are signatories to the APO representing
clients in a section 337 investigation should send a notice to the
Commission if they stop participating in the investigation or the
subsequent appeal of the Commission's determination. The notice should
inform the Commission about the disposition of CBI obtained under the
APO that was in their possession or they could be held responsible for
any failure of their former firm to return or destroy the CBI in an
appropriate manner.
III. Specific Investigations
APO Breach Investigations
Case 1: Two attorneys and a translator for a respondent breached
the APO in a section 337 investigation when they discussed information
with their client that included CBI belonging to the complainant. The
discussions were based on draft rebuttal statements, drafted by the
lead attorney from confidential witness statements, and used by the
second attorney and the translator in their discussions with the
client. The lead attorney received a private letter of reprimand; the
second attorney and the translator received warning letters.
In reaching its decision about sanctions, the Commission considered
the mitigating factors that the lawyers and the translator had not been
found to have violated a Commission APO in the past two years and that
the breach had already been sanctioned by the presiding administrative
law judge by removing the rebuttal statements from the record of the
section 337 investigation.
A private letter of reprimand was issued to the lead attorney
because that attorney prepared the draft rebuttal statements which
contained CBI and represented to the second attorney and the translator
that all CBI had been redacted. The second attorney and the translator,
relying on the representation of the lead attorney that all CBI had
been redacted from the rebuttal statements, used the information in
discussions with officials of their client, persons who were not
authorized to have access to the CBI. Moreover, the lead attorney
unilaterally determined that the CBI included in the rebuttal
statements was not or should not have been labeled confidential. The
Commission found this to be an aggravating factor since it circumvented
[[Page 79484]]
the appropriate procedure to challenge the redaction of public
information.
Warning letters were issued to the second attorney and to the
translator. Although the Commission found that unauthorized persons had
access to CBI, it found among other mitigating factors that this
attorney and the translator had relied upon the representation of the
first attorney that all CBI had been redacted from the draft rebuttal
statements.
Case 2: Two attorneys breached the APO in an appeal of the
Commission's final determination in a section 337 investigation, before
the U.S. Court of Appeals for the Federal Circuit, when they disclosed
CBI in a publicly filed document. The attorneys each received warning
letters.
Several mitigating factors were present. The attorneys immediately
remedied the breach of the APO, before any member of the public viewed
the CBI. Neither attorney had previously committed an APO breach in the
past two years.
Although the Commission noted an aggravating factor in that the
discovery of the breach was by a person other than the breacher, the
Commission did not find any significant aggravating circumstances.
Issued: December 24, 2013.
By order of the Commission.
William R. Bishop,
Supervisory Hearing and Information Officer.
[FR Doc. 2013-31202 Filed 12-27-13; 8:45 am]
BILLING CODE 7020-02-P