Summary of Commission Practice Relating to Administrative Protective Orders
| Published date | 10 February 2020 |
| Citation | 85 FR 7589 |
| Record Number | 2020-02534 |
| Section | Notices |
| Court | International Trade Commission |
Federal Register, Volume 85 Issue 27 (Monday, February 10, 2020)
[Federal Register Volume 85, Number 27 (Monday, February 10, 2020)]
[Notices]
[Pages 7589-7592]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02534]
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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 2018 and 2019. The
Commission intends for this report 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: Caitlin Stephens, Office of the
General Counsel, U.S. International Trade Commission, telephone (202)
205-2076. We advise hearing-impaired individuals that they may obtain
information on this matter by contacting the Commission's TDD terminal
at (202) 205-1810. General information concerning the Commission is
available by accessing its website (https://www.usitc.gov).
SUPPLEMENTARY INFORMATION: Statutory authorities for investigations
conducted by the Commission 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. 1516a(g)(7)(A); and 19 CFR 207.100-207.120. 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'') under 19 CFR 207.3(c).
The discussion below describes APO breach investigations that the
Commission completed during fiscal years 2018 and 2019, including
descriptions of actions taken in response to any breaches. This summary
addresses APO breach investigations related to proceedings under both
title VII and section 337 of the Tariff Act of 1930.
Since 1991, the Commission has published annually a summary of its
actions in response to violations of Commission APOs and rule
violations. See 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. 26, 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 its effort to educate practitioners about the
Commission's current APO practice, the Secretary to the Commission
issued An Introduction to Administrative Protective Order Practice in
Import Injury Investigations, 4th edition (Pub. No. 3755, March 2005).
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 form for antidumping and countervailing duty
investigations, which the Commission revised in March 2005, requires
the applicant to swear that he or she will:
(1) Not divulge any of the BPI disclosed under this APO or
otherwise obtained in this investigation and not otherwise available to
him or her, to any person other than--
(i) Personnel of the Commission concerned with the investigation,
(ii) The person or agency from whom the BPI was obtained,
(iii) A person whose application for disclosure of BPI under this
APO has been granted by the Secretary, and
[[Page 7590]]
(iv) Other persons, such as paralegals and clerical staff, who (a)
are employed or supervised by and under the direction and control of
the authorized applicant or another authorized applicant in the same
firm whose application has been granted; (b) have a need thereof in
connection with the investigation; (c) are not involved in competitive
decision making for an interested party which is a party to the
investigation; and (d) have signed the acknowledgment for clerical
personnel in the form attached hereto (the authorized applicant shall
also sign such acknowledgment and will be deemed responsible for such
persons' compliance with this APO);
(2) Use such BPI solely for the purposes of the above-captioned
Commission investigation or for judicial or binational panel review of
such Commission investigation;
(3) Not consult with any person not described in paragraph (1)
concerning BPI disclosed under this APO or otherwise obtained in this
investigation without first having received the written consent of the
Secretary and the party or the representative of the party from whom
such BPI was obtained;
(4) Whenever materials e.g., documents, computer disks, etc.
containing such BPI are not being used, store such material in a locked
file cabinet, vault, safe, or other suitable container (N.B.: Storage
of BPI on so-called hard disk computer media is to be avoided, because
mere erasure of data from such media may not irrecoverably destroy the
BPI and may result in violation of paragraph C of this APO);
(5) Serve all materials containing BPI disclosed under this APO as
directed by the Secretary and pursuant to section 207.7(f) of the
Commission's rules;
(6) Transmit each document containing BPI disclosed under this APO:
(i) With a cover sheet identifying the document as containing BPI,
(ii) with all BPI enclosed in brackets and each page warning that
the document contains BPI,
(iii) if the document is to be filed by a deadline, with each page
marked ``Bracketing of BPI not final for one business day after date of
filing,'' and
(iv) if by mail, within two envelopes, the inner one sealed and
marked ``Business Proprietary Information--To be opened only by [name
of recipient]'', and the outer one sealed and not marked as containing
BPI;
(7) Comply with the provision of this APO and section 207.7 of the
Commission's rules;
(8) Make true and accurate representations in the authorized
applicant's application and promptly notify the Secretary of any
changes that occur after the submission of the application and that
affect the representations made in the application (e.g., change in
personnel assigned to the investigation);
(9) Report promptly and confirm in writing to the Secretary any
possible breach of this APO; and
(10) Acknowledge that breach of this APO may subject the authorized
applicant and other persons to such sanctions or other actions as the
Commission deems appropriate, including the administrative sanctions
and actions set out in this APO.
The APO form for antidumping and countervailing duty investigations
also provides for the return or destruction of the BPI obtained under
the APO on the order of the Secretary, at the conclusion of the
investigation, or at the completion of Judicial Review. The BPI
disclosed to an authorized applicant under an APO during the
preliminary phase of the investigation generally may remain in the
applicant's possession during the final phase of the investigation.
The APO further provides that breach of an APO may subject an
applicant to:
(1) Disbarment from practice in any capacity before the Commission
along with such person's partners, associates, employer, and employees,
for up to seven years following publication of a determination that the
order has been breached;
(2) Referral to the United States Attorney;
(3) In the case of an attorney, accountant, or other professional,
referral to the ethics panel of the appropriate professional
association;
(4) Such other administrative sanctions as the Commission
determines to be appropriate, including public release of, or striking
from the record any information or briefs submitted by, or on behalf
of, such person or the party he represents; denial of further access to
business proprietary information in the current or any future
investigations before the Commission, and issuance of a public or
private letter of reprimand; and
(5) Such other actions, including but not limited to, a warning
letter, as the Commission determines to be appropriate.
APOs in safeguard investigations contain similar (though not
identical) provisions.
B. Section 337 Investigations
The APOs in section 337 investigations differ from those in title
VII investigations as there is no set form and provisions may differ
depending on the investigation and the presiding administrative law
judge. However, in practice, the provisions are often quite similar.
Any person seeking access to CBI during a section 337 investigation
(including outside counsel for parties to the investigation,
secretarial and support personnel assisting such counsel, and technical
experts and their staff who are employed for the purposes of the
investigation) is required to read the APO, agree to its terms by
letter filed with the Secretary of the Commission indicating that he or
she agrees to be bound by the terms of the Order, agree not to reveal
CBI to anyone other than another person permitted access by the Order,
and agree to utilize the CBI solely for the purposes of that
investigation.
In general, an APO in a section 337 investigation will define what
kind of information is CBI and direct how CBI is to be designated and
protected. The APO will state which persons will have access to the CBI
and which of those persons must sign onto the APO. The APO will provide
instructions on how CBI is to be maintained and protected by labeling
documents and filing transcripts under seal. It will provide
protections for the suppliers of CBI by notifying them of a Freedom of
Information Act request for the CBI and providing a procedure for the
supplier to 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. The APO requires all parties to the APO
to either return to the suppliers or destroy the originals and all
copies of the CBI obtained during the investigation.
The Commission's regulations provide for certain sanctions to be
imposed if the APO is violated by a person subject to its restrictions.
The names of the persons being investigated for violating an APO are
kept confidential unless the sanction imposed is a public letter of
reprimand. 19 CFR 210.34(c)(1). The possible sanctions are:
(1) An official reprimand by the Commission.
(2) Disqualification from or limitation of further participation in
a pending investigation.
[[Page 7591]]
(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
Upon finding evidence of an APO breach or receiving information
that there is a reason to believe one has occurred, the Secretary to
the Commission (``Secretary'') notifies relevant Commission offices
that the Secretary has opened an APO breach file, and the Commission
has commenced an APO breach investigation. Upon receiving notification
from the Secretary, the Office of the General Counsel (``OGC'')
prepares a letter of inquiry that the Commission sends to the possible
breacher under the Secretary's signature to ascertain the facts and
obtain the possible breacher's views on whether a breach has in fact
occurred.\1\ If, after reviewing the response and other relevant
information, the Commission determines that a breach has occurred, the
Commission often issues a second letter asking the breacher to address
the questions of mitigating circumstances and possible sanctions or
other actions. The Commission then determines what action to take in
response to the breach. In some cases, the Commission determines that,
although a breach has occurred, sanctions are not warranted, and
therefore finds it unnecessary to issue a second letter concerning what
sanctions might be appropriate. Instead, it issues a warning letter to
the individual. A warning letter is not considered to be a sanction.
However, a warning letter is considered in a subsequent APO breach
investigation.
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\1\ Procedures for 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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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 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 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 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
Commission may 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,
and safeguard investigations are not publicly available and are exempt
from disclosure under the Freedom of Information Act, 5 U.S.C. 552. See
19 U.S.C. 1677f(g); 19 U.S.C. 1333(h); 19 CFR 210.34(c).
The two types of breaches most frequently investigated by the
Commission involve (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.
[[Page 7592]]
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
the Commission took 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 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/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 be 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 2018
Case 1. The Commission determined that an attorney representing a
party in a section 337 investigation breached an APO when the attorney
disclosed CBI to unauthorized persons. The attorney, an APO signatory,
prepared and directed an employee to file a public version of a
submission that contained unredacted CBI. The document was finalized
and filed on the public record by an employee supervised by the
attorney, but the attorney did not review the final version of the
document before it was filed. After being placed on the public record,
the CBI was viewed by at least one non-party to the investigation.
Approximately six days later, counsel for another party notified the
attorney that the public version of the filing on the Commission's
Electronic Document Information System (EDIS) contained unredacted CBI.
The attorney contacted the Commission that same day to have the filing
removed from EDIS.
The attorney, who is responsible for the subordinate employee's
compliance with the APO, breached the APO because CBI was made
available to unauthorized persons. In determining the appropriate
action in response to the breach, the Commission considered mitigating
factors, including that (1) the breach was inadvertent and
unintentional; (2) the attorney took immediate corrective measures by
contacting the Secretary's office once notified of the possible breach;
and (3) the attorney had not committed a breach in the previous two
years. The Commission also considered the following aggravating
factors: (1) Opposing counsel discovered the breach; and (2)
unauthorized persons accessed the CBI. The Commission issued a private
letter of reprimand to the attorney.
B. Fiscal Year 2019
Case 1. A law firm participating in a title VII investigation
notified the Secretary that it had filed a public version of its brief
that potentially contained BPI. The Secretary, in consultation with the
Office of the General Counsel, determined that no breach had actually
occurred. The law firm's public filing did not contain any information
released to the law firm under the APO. A letter to the firm advised
that, under the circumstances, the Commission has closed the
investigation.
Case 2. The Commission determined that an attorney representing a
party in a title VII investigation breached the APO when the attorney
failed to properly redact BPI from a public filing. The day after
filing the public document on EDIS, the attorney discovered that the
BPI was still present in the electronic version of the public document,
and the attorney immediately contacted the Secretary.
The attorney breached the APO because BPI was made available to
unauthorized persons. In determining the appropriate action in response
to the breach, the Commission considered mitigating factors, including
that (1) the breach was unintentional; (2) the attorney had never
previously breached an APO; (3) the attorney took immediate corrective
measures upon discovery of the breach; (4) the attorney promptly
reported the situation to the Secretary; (5) there was no evidence that
any non-signatory to the APO viewed the BPI, and (6) significant time
had passed since the breach occurred. The Commission did not find any
aggravating factors to be present, and it sent a letter to the attorney
advising that it would take no further action in the matter.
Case 3. Counsel representing respondents in a section 337
investigation notified the Secretary that another law firm may have
breached the APO in the prior investigation when it filed a new
complaint. The respondents' counsel alleged that the new complaint
contained information that could not have been known but for access to
the CBI from the prior investigation. Complainants' counsel was able to
point to evidence that adequately supported its claim that it relied on
publicly available information in drafting the complaint at issue.
Accordingly, the Commission determined that no breach occurred.
By order of the Commission.
Issued: February 4, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-02534 Filed 2-7-20; 8:45 am]
BILLING CODE 7020-02-P
