[Federal Register Volume 75, Number 207 (Wednesday, October 27, 2010)]
[Notices]
[Pages 66127-66131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27172]
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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'') in investigations 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 investigations completed
during calendar year 2009 of breaches in proceedings under title VII
and section 337 of the Tariff Act of 1930. In addition, there is a
summary of rules violation investigations completed in 2009. The
Commission intends that this report inform representatives of parties
to Commission proceedings as to some specific types of APO breaches and
rules violations 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, sections 202 and 204 of the Trade Act of 1974, section 421 of the
Trade Act of 1974, section 337 of the Tariff Act of 1930, and North
American Free Trade Agreement (NAFTA) Article 1904.13, 19 U.S.C.
1516a(g)(7)(A), may enter into APOs that permit them, under strict
conditions, to obtain access to BPI (title VII) or confidential
business information (``CBI'') (section 421, sections 201-204, and
section 337) of other parties. See 19 U.S.C. 1677f; 19 CFR 207.7; 19
CFR 207.100, et seq.; 19 U.S.C. 2252(i); 19 U.S.C. 2451a(b)(3); 19 CFR
206.17; 19 U.S.C. 1337(n); 19 CFR 210.5, 210.34. The discussion below
describes APO breach investigations and rules violation investigations
that the Commission has completed during calendar year 2009, including
a description of actions taken in response to these breaches and rules
violations.
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); and 74 FR 54071 (October
21, 2009). 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:
(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;
[[Page 66128]]
(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.
An important provision of the Commission's title VII and safeguard
rules relating to BPI/CBI is the ``24-hour'' rule. This rule provides
that parties have one business day after the deadline for filing
documents containing BPI/CBI to file a public version of the document.
The rule also permits changes to the bracketing of information in the
proprietary version within this one-day period. No changes--other than
changes in bracketing--may be made to the proprietary version. The rule
was intended to reduce the incidence of APO breaches caused by
inadequate bracketing and improper placement of BPI/CBI. The Commission
urges parties to make use of the rule. If a party wishes to make
changes to a document other than bracketing, such as typographical
changes or other corrections, the party must ask for an extension of
time to file an amended document pursuant to section 201.14(b)(2) of
the Commission's rules.
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
[[Page 66129]]
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 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 are not publicly available
and are exempt from disclosure under the Freedom of Information Act, 5
U.S.C. 552, and section 135(b) of the Customs and Trade Act of 1990, 19
U.S.C. 1677f(g). See also 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.
In the past several years, the Commission completed APOB
investigations that involved 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 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.
The Commission's Secretary has provided clarification to counsel
representing parties in investigations relating to global safeguard
actions, section 202(b) of the Trade Act of 1974; investigations for
relief from market disruption, section 421(b) or (o) of the Trade Act
of 1974; and investigations for action in response to trade diversion,
section 422(b) of the Trade Act of 1974; and investigations concerning
dumping and subsidies under section 516A and title VII of the Tariff
Act of 1930 (19 U.S.C. 1303, 1516A and 1671-1677n). The clarification
concerns the requirement to return or destroy CBI/BPI that was obtained
under a Commission APO.
Counsel have been cautioned to be certain that each authorized
applicant files within 60 days of the completion of an 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. This same information is
also being added to notifications sent to new APO applicants.
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: The Commission found that an attorney for the complainant
in a section 337 investigation had violated the APO when he provided
copies of partially redacted confidential versions of post-hearing
briefs of three parties to the section 337 investigation to an attorney
with another law firm who was not a signatory to the APO. This attorney
in turn provided the briefs to the U.S. Patent and Trademark Office
(``PTO''), and, pursuant to PTO service rules, served a copy on another
non-signatory attorney. One of the briefs was viewable through the PTO
database for approximately two weeks.
The respondent in the section 337 investigation filed a motion
requesting that five sanctions be imposed on complainant and
complainant's counsel. The Commission denied this motion in its
entirety, but issued a private letter of reprimand to the breaching
attorney and sent a letter to the General Counsel of the PTO requesting
assistance in the destruction or return of documents containing the
CBI.
There were several mitigating factors. The breach was inadvertent,
as the attorney believed he was submitting the public versions of the
parties' briefs. The attorney had requested the public version of the
briefs from one paralegal, who asked a paralegal in another of the
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firm's offices to retrieve the briefs. That paralegal provided
partially redacted versions. However, because the paralegal providing
the briefs to the attorney believed they were public versions, she
changed the marking from confidential to public without informing the
attorney. Consequently, the attorney submitted the partially redacted
confidential versions, at least in part, due to a paralegal error. The
attorney's firm subsequently provided training and instruction on the
proper handling of CBI.
This was also the attorney's first APO breach. Upon learning of his
breach, he promptly reported it and initiated corrective action.
However, the Commission questioned the sufficiency of the attorney's
follow-up attempts to cure the breach. The petition to expunge the
briefs from the PTO database was filed 17 months before the public
versions of the three briefs were submitted in their place.
The attorney contended that there was no evidence that non-
signatories to the APO actually viewed the partially redacted briefs.
The Commission found, however, that the briefs were provided to the PTO
and PTO personnel are not APO signatories; the briefs were not
recovered until more than two years after they were filed with the PTO;
and at least one of the briefs could be viewed for two weeks on the PTO
Patent Application Informal Retrieval Database, which is connected to
the Internet. The Commission therefore presumed the CBI was reviewed by
a non-signatory, and found that to be an aggravating factor.
Case 2: A lead attorney and an associate attorney breached the APO
when they failed to redact BPI from the public version of an appendix
to a brief filed in the Court of International Trade (``CIT''). The law
firm informed the CIT and the Commission of the error once it became
aware that the appendix contained BPI. The Commission issued a warning
letter to the lead attorney and a private letter of reprimand to the
associate.
There were several mitigating factors. The breach was inadvertent,
and the law firm took relatively prompt action to remedy the breach. In
addition, although the appendix was publicly available at the CIT, a
CIT investigation showed that only signatories to the Commission APO
and law clerks to the CIT judge had accessed the appendix. Thus, no
unauthorized person had read the BPI. In addition, the lead attorney
did not have a prior breach within the previous two years generally
examined by the Commission for purposes of determining sanctions.
With respect to aggravating factors, the associate was found to
have breached the APO in another Commission investigation within the
previous two years, and was therefore, given a private letter of
reprimand in spite of the mitigating circumstances. The Commission
found that the lead attorney failed to supervise the associate
adequately in the task of preparing the appendix for filing.
Case 3: The Commission found that an associate attorney and an
international trade specialist breached the APO when they filed a
public version of a prehearing brief that erroneously contained BPI in
a title VII five-year review. Both individuals received private letters
of reprimand.
The BPI consisted of cumulative data concerning nonsubject imports
and combined export numbers for the domestic industry. The release of
this information, when combined with other publicly available
information on the record, made it possible to calculate the volume of
nonsubject imports and estimate two domestic producers' exports during
the original title VII investigation.
There were two mitigating factors. The breach was inadvertent, and
the individuals involved had not been sanctioned for an APO breach
within the past two years.
The parties argued that the Commission itself was partly
responsible for the dissemination of the BPI because it distributed the
confidential staff prehearing report containing unbracketed BPI to
party representatives who were under the APO. However, the Commission
found that this was not a mitigating factor because the cover page of
the prehearing staff report clearly indicated that only the public
version of the report should be used as a guide for confidentiality.
The law firm received the public version of the staff report nine days
before it filed the public version of its prehearing brief, and had
ample time to refer to it and prevent the breach. The Commission also
declined to accept the argument of the associate and international
trade specialist that the ``tight'' time frame of sunset reviews
justified their failure to properly rely on the public version.
There were also aggravating factors. The Commission staff, and not
the law firm, discovered the possible breach. Without information to
the contrary presented by the breaching individuals, the Commission
presumed that the BPI was read by unauthorized personnel because it had
been in the possession of unauthorized parties for over two months.
Case 4: The Commission found that a paralegal breached the APO when
he prepared and filed a public version of a brief containing BPI in a
title VII investigation without informing any attorneys in his firm.
The paralegal was instructed by the supervisory attorney to prepare the
confidential version of the brief for filing. The paralegal had
extensive experience in Commission investigations and in preparing
documents containing confidential information. While the paralegal was
preparing the confidential brief, he misread the Commission's rules and
believed the public version was also due for filing that day. Because
it was late in the day, he immediately prepared the public version and
filed it with the confidential version. In so doing, he failed to
follow the firm's procedures for handling and filing documents
containing BPI and failed to remove all BPI from the public version of
the brief. The Commission issued a warning letter to the paralegal. The
Commission found that the supervising attorney, whom the paralegal did
not inform of his action, was not responsible for the breach.
There were several mitigating factors. The breach was
unintentional, the BPI was not read by any person not subject to the
APO, the firm moved to remedy the breach expeditiously after being
informed of it by the Commission staff, and this was the paralegal's
only breach in the prior two years generally examined by the Commission
for the purpose of determining sanctions.
There were also aggravating factors. Commission staff, rather than
the firm, discovered the breach, and the paralegal failed to follow the
firm's procedures requiring attorney review of any filing for BPI.
Case 5: The Commission found that a secretary in a law firm
breached the APO by mistakenly sending the confidential version of a
title VII brief to an attorney who was opposing the law firm in a
different investigation and who was not a signatory to the title VII
investigation's APO. The Commission concluded that the firm's attorneys
did not breach the APO. The secretary had been given a purely
ministerial task of preparing a mailing envelope and, acting on her
own, had inadvertently placed the title VII brief in the wrong mailing
envelope. The Commission issued a warning letter to the secretary.
There were several mitigating factors. The secretary had no prior
breaches within the prior two years generally examined by the
Commission for purposes of determining sanctions; the breach was
unintentional; relatively prompt action was taken to remedy the breach;
and the record in this APOB
[[Page 66131]]
investigation suggests that the BPI was not viewed by unauthorized
persons.
Case 6: The Commission found that two attorneys breached the APO
when they submitted a postconference brief comparing the prices of
various firms' imports. The attorneys deliberately declined to bracket
a passage providing a description of the degree by which prices
reported by one importer were lower than those reported by other
importers, on the grounds that Commission Rule 201.6(a)(1) allows
parties to make ``nonnumerical characterization'' of trends in public
submissions. In the Federal Register notice of final rulemaking for
section 201.6(a)(1), the preamble stated that any discussion of the
degree or absolute level of a decline or increase was not a
``nonnumerical characterization.'' The Commission concluded that,
although the phrases were not literally numerical, they conveyed as
much specificity as a strictly numerical characterization. Accordingly,
the Commission found that the information in question was BPI and that
it should have been bracketed. The attorneys argued that the BPI was
information they acquired from their client and not from the
questionnaire responses that had been cited in the brief. To support
their argument, they cited exhibits that were included with the brief.
The Commission found that these exhibits did not support their
allegations that the information came from their client. The Commission
issued private letters of reprimand to both attorneys.
There were two mitigating factors. Neither attorney had been found
to have breached an APO in the two years the Commission typically
considers for determining sanctions. In addition, the record showed
that the attorneys had responded promptly to the request by the
Commission's staff to provide a replacement page for the page
containing the unbracketed BPI, although the Commission's Dockets staff
never actually received it.
There were also several aggravating factors. First, the Commission
found that the breach was not inadvertent. The attorneys were aware of
Commission rule 201.6(a)(1), but they made either no effort or an
inadequate effort to ascertain the Commission's published
interpretation of the regulation, notwithstanding the fact that it was
readily available, easily located, and expressly addressed the question
of whether the information should be treated as BPI. Instead they
adopted their own interpretation of the regulation without consulting
the Commission's staff. Thus, they made a conscious decision not to
bracket material that was BPI.
Second, the Commission presumed that an individual not subject to
the APO read the unbracketed BPI in the public version of the brief.
The brief was sent to counsel for the opposing side, who was not
subject to the APO. The replacement page was not sent to him until the
next day. The attorneys did not address whether the counsel had viewed
the BPI even after being specifically asked by the Commission's
Secretary. In the absence of any contrary representation by the
attorneys, the Commission presumed that opposing counsel read the
brief, including the BPI, at the time he received it.
Third, the breach was discovered by the Commission's staff. In
addition, although the attorneys initially provided the replacement
page promptly, they did not respond to the second request for a
replacement page, which was necessitated by the fact that Dockets staff
did not receive the original replacement page. The attorneys did
respond to the third request.
APO Breach Investigation in Which No Breach Was Found
Case 1: Counsel for respondents in a title VII investigation
transmitted to their clients copies of a draft public version of a
prehearing brief. The draft brief contained information that had been
derived from information in the Commission's prehearing report. In the
report, the information was treated as BPI and was bracketed. The
Commission determined that counsel did not breach the APO because at
the time the brief was prepared, the substance of the material in the
draft prehearing brief was available in the public domain.
Rules Violations
Case 1: The Commission found that an attorney violated 19 CFR
207.3(b) by serving a postconference brief in a title VII investigation
by first-class mail. The Commission issued a warning letter. There were
two mitigating factors: (1) Rhis was the attorney's first rules
violation within the prior two years generally examined by the
Commission for purposes of determining sanctions, and (2) the violation
was unintentional.
Investigation in Which No Rules Violation Was Found
Case 1: An associate and lead attorney filed an in camera hearing
request in a title VII five year review which did not meet the content
requirements of 19 CFR 207.24(d), was not timely filed, and did not
provide good cause for the untimeliness as required under 19 CFR 201.14
and 207.24(d). It was also improperly served contrary to 19 CFR
207.3(b). The attorneys filed a second letter seeking leave to file an
untimely request and providing the subjects to be covered during the in
camera session. This letter did not provide the time necessary to cover
the subjects and was also improperly filed. Consequently, the
Commission rejected the request for the in camera session as untimely.
After consideration of the attorneys' responses in this rules violation
investigation, the Commission determined that they failed to exercise
due diligence in filing the two submissions, but decided not to
sanction them. This decision was reached after giving consideration to
the facts that their actions were not intentional and that no party was
prejudiced by their actions. In addition, this was the associate's
first appearance before the Commission.
By order of the Commission.
Issued: October 21, 2010.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2010-27172 Filed 10-26-10; 8:45 am]
BILLING CODE 7020-02-P