Notice2023-26806
Summary of Commission Practice Relating to Administrative Protective Orders
Primary source
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Published
December 7, 2023
Issuing agencies
International Trade Commission
Abstract
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") under title 19 of the Code of Federal Regulations. This notice provides a summary of APO breach investigations completed during fiscal year 2023. 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.
Full Text
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<title>Federal Register, Volume 88 Issue 234 (Thursday, December 7, 2023)</title>
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[Federal Register Volume 88, Number 234 (Thursday, December 7, 2023)]
[Notices]
[Pages 85303-85310]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-26806]
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INTERNATIONAL TRADE COMMISSION
Summary of Commission Practice Relating to Administrative
Protective Orders
AGENCY: 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'') under title 19 of the Code of Federal Regulations.
This notice provides a summary of APO breach investigations completed
during fiscal year 2023. 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: David Goldfine, Office of the General
[[Page 85304]]
Counsel, U.S. International Trade Commission, telephone (202) 708-5452.
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 is available on its website at
<a href="https://www.usitc.gov">https://www.usitc.gov</a>.
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 the Commission's Rules of Practice and Procedure. 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 207.100-207.120. The discussion below describes APO breach
investigations that the Commission completed during fiscal year 2023,
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 87 FR 69331 (Nov. 18, 2022); 86 FR 71916 (Dec. 20,
2021); 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 efforts to educate practitioners about
the Commission's current APO practice, the Secretary to the Commission
(``Secretary'') issued in January 2022 a sixth edition of An
Introduction to Administrative Protective Order Practice in Import
Injury Investigations (Pub. No. 5280). This document is available on
the Commission's website at <a href="http://www.usitc.gov">http://www.usitc.gov</a>.
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.:
[S]torage 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
[[Page 85305]]
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 (``USMCA'') 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, for example, outside counsel for parties to
the investigation 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). Upon final termination of an investigation, the APO requires
all signatories to the APO to either return to the suppliers or, with
the written consent of the CBI supplier, destroy the originals and all
copies of the CBI obtained during the investigation.
The Commission's regulations provide for the imposition of certain
sanctions if a person subject to the APO violates its restrictions. The
Commission keeps the names of the persons being investigated for
violating an APO 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 they 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 for 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 North American Free Trade Agreement or USMCA panel
or committee proceedings are set out in 19 CFR 207.100-207.120. The
Commission's Office of Unfair Import Investigations conducts the
initial inquiry in these proceedings.
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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 Commission
then notifies the alleged breaching parties of the alleged breach and
provides them with the voluntary option to proceed under a one- or two-
step investigatory process. Under the two-step process, which was the
Commission's historic practice, the Commission determines first 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
[[Page 85306]]
determines that no breach occurred and issues a letter so stating; or
(2) the Commission finds that a breach occurred but concludes that no
further action is warranted and issues a warning letter. If the
Commission determines that a breach occurred that warrants further
action, the Commission will then determine what sanction, if any, to
impose. Before making this determination, the Commission provides the
breaching parties with 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 recognizes 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 offers alleged breaching
parties 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. Under either process, the
alleged breaching party has the opportunity to submit affidavits
reciting the facts concerning the alleged breach and mitigating factors
pertaining to the appropriate response if a breach is found.
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 authorized
under the APO had access to and viewed the BPI/CBI. The Commission
considers whether there have been prior breaches by the same person or
persons in other investigations and whether there have been 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, or for retaining BPI/CBI without consent of the submitter
after the termination of an investigation. This is so even though the
Commission may also hold the attorney exercising direction or control
over the economist or consultant responsible for the APO breach. 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 or
exposure 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 appeared regularly before the Commission, was aware
of the requirements and limitations related to APO access, and should
have verified their 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.
The Commission has held routinely that the disclosure of BPI/CBI
through
[[Page 85307]]
recoverable metadata or hidden text constitutes a breach of the APO
even when the BPI/CBI is not immediately visible without further
manipulation of the document. In such cases, breaching parties have
transmitted documents that appear to be public documents in which the
parties have removed or redacted all BPI/CBI. However, further
inspection of the document reveals that confidential information is
actually retrievable by manipulating codes in software or through the
recovery of hidden text or metadata. In such instances, the Commission
has found that the electronic transmission of a public document with
BPI/CBI in a recoverable form was a breach of the APO.
The Commission has cautioned counsel to ensure 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 the signatory's 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 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 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
Case 1. The Commission determined that an attorney breached the APO
issued in a section 337 investigation when the attorney prepared, filed
in EDIS, and served a public version of a confidential document that
contained unredacted CBI.
After filing the public version in EDIS and serving it on opposing
counsel, the attorney received notification from opposing counsel that
the document contained unredacted CBI. The attorney immediately
contacted the Commission, and the Office of the Secretary removed the
document from public view five hours after it had been posted. The
attorney filed a corrected public version that redacted all CBI, but
unauthorized individuals had accessed the public version with
unredacted CBI while it was posted publicly. Although the attorney
argued to the Commission that the information at issue was not CBI, the
Commission found that the attorney had not provided evidence sufficient
to demonstrate that the CBI was available publicly at the time of the
breach.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) the breach
was unintentional and inadvertent; (2) after being notified of the
breach, the attorney took prompt action to remedy the breach and
prevent further dissemination of CBI; (3) the attorney self-reported
the breach to the Commission; (4) the attorney's law firm implemented
new procedures to prevent similar breaches in the future; and (5) the
attorney had not previously breached an APO in the two-year period
preceding the date of this breach. The Commission also considered the
following aggravating factors: (1) the attorney did not discover the
breach; and (2) unauthorized individuals had access to and presumably
viewed the CBI.
The Commission determined to issue a private letter of reprimand to
the attorney.
Case 2. The Commission determined that an attorney breached the APO
issued in a section 337 investigation when the attorney prepared and
filed in EDIS a public version of a confidential document that
contained unredacted CBI.
The public version that the attorney filed contained no redactions.
Eleven days after the public version was posted publicly to EDIS,
opposing counsel reported to the Commission that the document contained
CBI. The Secretary immediately removed the document from public view,
and the attorney filed a corrected public version that redacted all
CBI. However, multiple unauthorized individuals had accessed the public
version with unredacted CBI while it was posted publicly. Although the
attorney argued to the Commission that the information at issue was not
CBI, the Commission found that the attorney had not provided evidence
sufficient to demonstrate that the CBI was available publicly at the
time of the breach.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) the breach
was unintentional and inadvertent; and (2) the attorney had not
previously breached an APO in the two-year period preceding the date of
this breach. The Commission also considered the following aggravating
factors: (1) the attorney did not discover the breach; (2) the public
version was posted publicly to EDIS for twelve days; and (3)
unauthorized individuals had access to and presumably viewed the CBI.
The Commission determined to issue a private letter of reprimand to
the attorney.
Case 3. The Commission determined that a law firm breached the APO
issued in a section 337 investigation when it improperly retained
documents containing CBI past the investigation's termination date. The
Commission also determined that a second breach occurred when a non-
APO-signatory attorney at the law firm accessed an improperly retained
document containing CBI, used that document as a template in an
unrelated section 337 investigation, and in doing so inadvertently
disclosed CBI to counsel in the unrelated investigation.
The law firm discovered both the improper retention and the
unauthorized use approximately a year and a half after the underlying
section 337 investigation had terminated. The law firm immediately
reported the events to the then-presiding administrative law judge in
the underlying section 337 investigation, and it then confirmed both
destruction of the document by the unauthorized recipient in the
unrelated section 337 investigation and that it did not possess any
other CBI from the terminated underlying section 337 investigation.
Despite the law firm's confirmation that it had destroyed all of the
improperly retained CBI, the law firm discovered about five years later
that it still retained documents from the underlying section 337
investigation in a misnamed and archived electronic folder that was
inaccessible absent special circumstances. The law firm quarantined the
folder to prevent further access by law firm personnel, notified the
Commission accordingly, and implemented new safeguards to prevent
future inadvertent retention of CBI.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) both
breaches were inadvertent and unintentional; (2) the
[[Page 85308]]
law firm discovered its own breaches; and (3) after discovering the
breaches, the law firm took prompt corrective action to investigate the
breaches and prevent further dissemination of CBI; (4) the law firm
promptly self-reported the unauthorized retention, access, and use of
CBI; (5) for the breach involving the improper retention of CBI, the
CBI remained otherwise protected by being stored on an internal archive
that was inaccessible absent special circumstances; and (6) the law
firm implemented new safeguarding procedures to prevent against similar
breaches in the future. The Commission also considered the following
aggravating factors: (1) one breach resulted in unauthorized
individuals accessing and viewing the CBI; (2) the law firm violated
the APO in two different ways, by improperly retaining CBI and by
exposing CBI to an unauthorized party; and (3) the law firm committed
multiple breaches during the relevant two-year time period, including a
breach in another APO breach investigation. The Commission also noted
that the law firm had failed to properly dispose of the CBI for several
years after discovering the first breach.
The Commission issued a private letter of reprimand to the law firm
for the two breaches because none of the individuals responsible for
the breaches remained at the law firm at the time the Commission issued
the sanction. The Commission further required the remaining APO
signatories at the law firm to submit affidavits confirming the
destruction of all CBI from the underlying investigation and confirming
that the law firm had not improperly retained CBI from any other
section 337 investigation.
Case 4. The Commission determined that two attorneys from different
law firms that were co-counsel for a party in a section 337
investigation each separately breached the APO by emailing drafts of a
brief that contained CBI acquired under the APO to an unauthorized
recipient, who then shared the CBI with additional unauthorized
individuals.
The first breach occurred when an attorney from one of the two law
firms emailed a draft brief containing unredacted CBI to a group that
included an APO non-signatory. The second breach occurred shortly
thereafter that same day when an attorney from the other law firm sent
a reply email to the same group copied on the first email with another
draft that also contained unredacted CBI. Both breaching emails
included among the recipients the attorney who was not authorized to
receive the CBI and five attorneys from both co-counsel law firms that
were signatories to the APO. The non-APO signatory attorney then
forwarded the drafts to additional attorneys that were not APO
signatories. One of the law firms discovered the breaches 20 days after
the breaching emails were sent to the unauthorized recipients. The
breaching parties sought to confirm destruction of the documents at
issue the morning after discovering the CBI disclosure, and they
reported the breaches to the Commission two days later.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) the breach
was inadvertent and unintentional; (2) one of the breaching parties
discovered the breach; (3) after discovering the breach, the breaching
parties took prompt action to remedy the breach and prevent further
dissemination of CBI; (4) the breaching parties promptly self-reported
the breach to the Commission; and (5) the attorneys involved had not
previously breached an APO in the two-year period preceding the dates
of these breaches. The Commission also considered the following
aggravating factors: (1) unauthorized individuals had access to and
viewed the BPI; and (2) the breaching parties violated the APO on two
occasions.
The Commission issued private letters of reprimand to both
attorneys who emailed the documents containing unredacted CBI. The
Commission also issued warning letters to the five APO signatories who
were copied on the breaching emails but failed to identify the
breaches. As APO signatories and recipients of the email transmitting
unredacted CBI, they had an opportunity to immediately discover that
one of the recipients on the group email with the draft brief
containing unredacted CBI was not an APO signatory and to prevent the
second breach from occurring. The Commission found that warning letters
for these five attorneys were appropriate because early detection of
the first breach could have prevented the second breach, and it would
have prevented the unauthorized recipient from further disseminating
CBI to additional unauthorized individuals.
Case 5. The Commission determined that four attorneys at a law firm
breached the APO issued in a section 337 investigation when the law
firm publicly filed in EDIS and served on its clients a document that
contained unredacted CBI.
Although all four attorneys worked on the document, only three of
the four attorneys reviewed the final version for CBI. After those
three attorneys reviewed the document and determined that it did not
contain CBI, one of the attorneys publicly filed the document in EDIS
and another served the document on the firm's clients, who were not
authorized under the APO to view CBI. Six days later, opposing counsel
notified one of the attorneys that the document contained unredacted
CBI. After receiving this notice, the attorney immediately contacted
the Commission to request that the document be removed from public
view, contacted the Office of Unfair Import Investigations to notify
them of the issue, and contacted the clients who had received the
document to request that they destroy it. In their submissions to the
Commission about this breach, the attorneys confirmed to the Commission
that they had received responses (and confirmations of destruction)
from all of the clients who had received the unredacted document.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) the breach
was inadvertent and unintentional; (2) after being notified of the
breach, the law firm took prompt action to remedy the breach and
prevent further dissemination of CBI; (3) the firm promptly self-
reported the breach to the Commission; and (4) the attorneys had not
previously breached an APO in the two-year period preceding the date of
this breach. The Commission also considered the following aggravating
factors: (1) the responsible attorneys did not discover the breach; and
(2) unauthorized individuals had access to and presumably viewed the
CBI.
The Commission determined to issue private letters of reprimand to
the three attorneys who reviewed the final version of the document. The
Commission determined to issue a warning letter to the fourth attorney
who worked on the document but did not review the final version before
it was filed or served. The Commission found that the fourth attorney
contributed to the breach but was not directly responsible for the
exposure of CBI to unauthorized individuals.
Case 6. The Commission determined that a law firm breached the APO
issued in a section 337 investigation when it filed on EDIS a public
version of a brief that contained unredacted CBI, including language
that a confidential Commission document treated as CBI.
Two supervisory attorneys and one associate attorney from the law
firm were each responsible for drafting, reviewing, and redacting the
public version of the brief. A fourth attorney,
[[Page 85309]]
who served as lead counsel in the underlying investigation, was
involved in drafting and reviewing the brief and signed the brief when
it was filed. The fourth attorney relied on both supervisory attorneys
and the associate attorney for redacting the brief for CBI. The law
firms representing the parties to the underlying section 337
investigation agreed to exchange briefs that they had each redacted for
their own clients' CBI. Following that procedure, the breaching law
firm reviewed the public version of its brief for only its own client's
CBI, despite knowing that it had included CBI obtained under the APO
that a confidential Commission document treated as CBI. The law firm
sought confirmation from opposing counsel that the draft did not
contain CBI from opposing counsel's client, and opposing counsel signed
off on the draft under the mistaken belief that it did not contain its
client's CBI. However, the brief, as filed on EDIS, did contain CBI
from opposing counsel's client that the law firm had obtained under the
APO. Although the law firm had relied on opposing counsel's
representation that the draft brief did not contain their clients' CBI,
the law firm ultimately was responsible for the breach by deciding to
include the unredacted CBI in the brief and for exposing it to
unauthorized persons by filing the public version of the brief on EDIS.
Opposing counsel discovered the breach and notified the law firm and
the Commission. The original public version of the brief was on EDIS
for two days before the breaching law firm filed a corrected public
version of the brief (which it did immediately upon being notified of
the breach).
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) the breach
was inadvertent and unintentional; (2) the law firm took prompt
corrective measures upon learning of the alleged breach by filing a
corrected public version of the brief; and (3) the parties involved had
not previously breached an APO in the two-year period preceding this
breach. The Commission also considered the following aggravating
factors: (1) the breach resulted in exposure of CBI to unauthorized
individuals; and (2) the law firm did not discover its own breach.
The Commission issued private letters of reprimand to the two
supervisory attorneys and the associate attorney for their role in the
breach. The Commission also issued a warning letter to the lead
counsel, who failed to provide proper protection of CBI, but who was
not directly responsible for the disclosure of the CBI.
Case 7. The Commission determined that two partners and one senior
counsel at a law firm breached the APO issued in a section 337
investigation in three different ways. First, the Commission determined
that they breached the APO when they accessed and used CBI from the
investigation in related federal district court litigation before
finalizing a cross-use agreement covering such use. Second, the
Commission determined that they breached the APO when, before
finalizing the cross-use agreement, they provided CBI to an associate
attorney who was not subscribed to the APO in the terminated section
337 investigation. Finally, the Commission determined that they
breached the APO by publicly filing a CBI exhibit from the terminated
section 337 investigation in the district court's electronic case-
filing system.
Following the termination of the underlying section 337
investigation, the law firm began discussions with opposing counsel to
formulate a cross-use agreement that would allow the parties to retain
and use certain CBI from the section 337 investigation in related
federal district court litigation. In its submissions to the Commission
on this matter, the law firm indicated that it had restricted internal
access to the CBI until the agreement was finalized with opposing
counsel. However, four months before the agreement was finalized, the
partners and senior counsel used CBI from the section 337 investigation
in preparing a filing for the district court litigation and attached a
confidential exhibit from the section 337 investigation to it. The
partners and senior counsel also provided CBI from the section 337
investigation to an associate attorney who had not worked on the
underlying section 337 investigation and was not authorized under the
APO to access or view CBI from it. The associate had no previous
experience with section 337 investigations or with Commission APO
practice.
Because the cross-use agreement was not yet in place at the time
that the law firm was preparing the filing at issue in this
investigation, the law firm sought approval from opposing counsel to
use the confidential exhibit and the CBI within it, but opposing
counsel denied this request. Following this denial, the senior counsel,
who was the primary drafter of the filing, reviewed the document to
remove all references to CBI and instructed the associate to remove the
confidential exhibit from it. One of the partners, who was lead counsel
for the district court litigation, reviewed the final version of the
revised filing and also instructed the associate to remove the exhibit
and correct the labeling of the remaining exhibits. The associate
instructed administrative staff to remove the confidential exhibit and
to replace the confidential exhibit on the exhibit list with a public
exhibit. When staff sent a revised exhibit list and revised set of
exhibits, the associate checked the exhibit list to confirm that staff
had made the required adjustments, but the associate did not check the
public or confidential sets of exhibits to ensure that the confidential
exhibit had been removed. The partner and senior counsel also did not
check the exhibits. The associate then instructed staff to submit the
filing and its exhibits to the district court's case-filing system,
which they did. After receiving notification of the filing, one of the
partners asked the associate to confirm that the firm had not filed any
of the confidential exhibits publicly. The associate confirmed that the
confidential exhibits were not accessible through the district court's
electronic case-filing system but did not check the public exhibits.
The morning after the law firm filed the document and exhibits,
opposing counsel notified the law firm that the filing included a
confidential exhibit that was available publicly on the district
court's electronic case-filing system. In this notification, opposing
counsel reiterated to the law firm that it did not approve of the law
firm's use of the confidential exhibit as part of the filing. The law
firm immediately contacted the district court to request that the court
remove the filing, which it did that same day. In its submissions to
the Commission on this matter, the law firm indicated that it put in
place stricter procedures for the retention and storage of CBI from
terminated investigations that are subject to potential cross-use
agreements to ensure that such agreements are finalized and in place
before anyone accesses or uses the CBI.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) the public
exposure of the CBI was inadvertent and unintentional; (2) after being
notified of the exposure, the law firm took prompt action to remedy the
breach and prevent further dissemination of CBI; (3) the firm self-
reported the use and exposure of CBI to the Commission; (4) the law
firm implemented new procedures to prevent against similar breaches in
the future; and (5) the attorneys had not previously breached an APO in
the two-year period
[[Page 85310]]
preceding the date of these breaches. The Commission also considered
the following aggravating factors: (1) the law firm's use of the CBI
and its provision to an associate were not inadvertent; (2)
unauthorized individuals had access to and presumably viewed the CBI;
(3) the law firm violated the APO in three different ways; (4) the law
firm did not discover the public exposure of the CBI; and (5) the law
firm failed to follow its own procedures by accessing and using CBI to
which the firm had restricted access pending the completion of the
cross-use agreement.
The Commission also considered the law firm's argument that its use
of the exhibit and its provision of CBI to the associate attorney was
consistent with 28 U.S.C. 1659(b), which provides for the transfer and
admissibility of the Commission record in federal district court
litigation under certain circumstances. However, the Commission
determined that the exhibit at issue was not a part of the Commission
record, as defined under 19 CFR 210.38(a), and thus, it was not within
the scope of section 1659(b). In addition, the Commission noted that
the application of section 1659(b) would not mitigate the public
exposure of the CBI.
The Commission determined to issue private letters of reprimand to
the partner who served as lead counsel and to the senior counsel. The
Commission determined that they were both part of the decisions to use
the CBI in the filing, to provide it to the associate attorney, and to
delegate the removal of the exhibit to the associate, who did not have
any previous experience with section 337 investigations and Commission
APO practice. The Commission determined to issue a warning letter to
the second partner, who worked on the filing and was aware of the
associate's access to the CBI, but was not involved with the
finalization of the document or the failed process to remove the
confidential exhibit.
The Commission found that good cause existed to issue a warning
letter to the associate under 19 CFR 201.15(a). The associate was not a
signatory to the APO in the underlying section 337 investigation and
did not have previous Commission APO experience, and thus the
Commission determined that the issuance of a sanction would be
inappropriate. However, the associate had several years of experience
as an attorney, was aware that the exhibit was confidential, and had
received specific instructions to remove the confidential exhibit from
the filing. The associate was also directly responsible for the public
exposure of CBI.
Case 8. The Commission determined that an attorney at a law firm
breached the APO issued in a section 337 investigation when the law
firm publicly filed in EDIS and served to its clients a confidential
document that the attorney had prepared.
Although the document contained unredacted CBI, the attorney did
not place confidential headers on the document when he was preparing it
to be filed. As a result, after the attorney finalized the document, a
paralegal filed the document publicly on EDIS, and the law firm's
client, who was not on the APO, was provided with a copy of the
document. After the document was posted to EDIS, opposing counsel
notified the attorney that the document contained CBI, and the
paralegal, at the attorney's direction, contacted the Office of the
Secretary to request that the document be removed from public view. In
addition, the attorney contacted the client who had received the
document and requested that the client destroy it. The attorney refiled
the document as confidential, but multiple unauthorized individuals had
accessed the document while it was available publicly on EDIS.
In determining whether to issue a sanction for the breach, the
Commission considered the following mitigating factors: (1) the breach
was unintentional and inadvertent; (2) the attorney self-reported the
breach to the Commission; (3) after being notified of the breach, the
attorney took prompt action to remedy the breach and prevent further
dissemination of CBI; and (4) the attorney had not previously breached
an APO in the two-year period preceding the date of this breach. The
Commission also considered the following aggravating factors: (1) the
attorney did not discover the breach; and (2) unauthorized individuals
had access to and presumably viewed the CBI.
The Commission determined to issue a private letter of reprimand to
the attorney. The Commission determined not to hold the paralegal who
filed the document or any other individuals at the law firm responsible
for the breach. The attorney was the only person involved in the
preparation of the document for filing, and the breach occurred because
the attorney failed to apply CBI headers.
Case 9. The Commission determined that an attorney breached the APO
in a section 337 investigation by transmitting to unauthorized
individuals a link to a document that contained unredacted CBI obtained
under the APO.
The attorney discovered the breach eight days after sending the
link when he received a question from one of the unauthorized
recipients who had gained unauthorized access. Upon learning of the
breach, the attorney immediately deactivated the link and confirmed
that unauthorized recipients had destroyed the document and would
refrain from using any CBI that they may have viewed. The attorney also
immediately reported the breach to the opposing counsel and, two days
later, reported the breach to the Commission.
In determining whether to issue a sanction for the breach, the
Commission considered mitigating factors, including that: (1) the
breach was inadvertent and unintentional; (2) the law firm discovered
its own breach; (3) the law firm promptly self-reported the breach; (4)
after discovering the breach, the law firm took prompt action to remedy
the breach and prevent further dissemination of CBI; (5) the law firm
implemented new procedures to prevent against similar breaches in the
future; and (6) the attorney had not previously breached an APO in the
two-year period preceding the date of this breach. The Commission also
considered the aggravating factor that unauthorized persons had access
to and presumably viewed CBI.
The Commission issued a private letter of reprimand to the
attorney.
By order of the Commission.
Issued: December 1, 2023.
Sharon Bellamy,
Supervisory Hearings and Information Officer.
[FR Doc. 2023-26806 Filed 12-6-23; 8:45 am]
BILLING CODE 7020-02-P
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</html>Indexed from Federal Register on December 7, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.