25064 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 / Notices

State and Federal agencies with

management and regulatory

responsibilities in the Bay-Delta system

are working together as CALFED to

provide policy direction and oversight

for the process.

One area of Bay-Delta management

includes the establishment of a joint

State-Federal process to develop longterm solutions to problems in the BayDelta system related to fish and wildlife,

water supply reliability, natural

disasters, and water quality. The intent

is to develop a comprehensive and

balanced plan which addresses all of the

resource problems. This effort, the

CALFED Bay-Delta Program (Program),

is being carried out under the policy

direction of CALFED. The Program is

exploring and developing a long-term

solution for a cooperative planning

process that will determine the most

appropriate strategy and actions

necessary to improve water quality,

restore health to the Bay-Delta

ecosystem, provide for a variety of

beneficial uses, and minimize Bay-Delta

system vulnerability. A group of citizen

advisors representing California’s

agricultural, environmental, urban,

business, fishing, and other interests

who have a stake in finding long-term

solutions for the problems affecting the

Bay-Delta system has been chartered

under the Federal Advisory Committee

Act (FACA) as the BDAC to advise

CALFED on the program mission,

problems to be addressed, and

objectives for the Program. BDAC

provides a forum to help ensure public

participation, and will review reports

and other materials prepared by

CALFED staff. BDAC has established a

subcommittee called the Ecosystem

Roundtable to provide input on annual

work plans to implement ecosystem

restoration projects and programs.

Minutes of the meeting will be

maintained by the CALFED Bay-Delta

Program, Suite 1155, 1416 Ninth Street,

Sacramento, CA 95814, and will be

available for public inspection during

regular business hours, Monday through

Friday within 30 days following the

meeting.

Dated: April 30, 1998.

Kirk Rodgers,

Deputy Regional Director, Mid-Pacific Region.

[FR Doc. 98–11969 Filed 5–5–98; 8:45 am]

BILLING CODE 4310–94–M

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.

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

Title VII and violations of the

Commission’s rule on bracketing

business proprietary information

(‘‘BPI’’) (the ‘‘24-hour rule’’), 19 CFR

207.3(c). This notice provides a

summary of investigations of breaches

and violations of the 24-hour rule for

the period ending in 1997. The

Commission intends that this report

educate representatives of parties to

Commission proceedings as to some

specific types of APO breaches and 24-

hour rule 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 Internet server

(http://www.usitc.gov).

SUPPLEMENTARY INFORMATION:

Representatives of parties to

investigations conducted under Title VII

of the Tariff Act of 1930 may enter into

APOs that permit them, under strict

conditions, to obtain access to BPI of

other parties. See 19 U.S.C. 1677f; 19

CFR 207.7. The discussion below

describes APO breach investigations

that the Commission has completed

including a description of actions taken

in response to breaches. The discussion

covers breach investigations completed

during calendar year 1997.

Since 1993, the report has also

included a summary of the

Commission’s investigations involving

violations of the 24-hour rule, which

provides that during the 24-hour period

after a Commission deadline for a party

submission in an antidumping or

countervailing duty proceeding, changes

are permitted to the proprietary version

to correct the bracketing of BPI; no other

changes are permitted under that rule.

See 19 CFR 207.3(c). The discussion

below covers investigations of violations

of this rule completed during 1997.

In recent years, the Commission has

expanded the report to include APO

breaches in other types of proceedings

as well. In 1997, no APO investigations

were completed in proceedings other

than Title VII investigations.

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 (Feb. 6, 1991); 57

FR 12,335 (Apr. 9, 1992); 58 FR 21,991

(Apr. 26, 1993); 59 FR 16,834 (Apr. 8,

1994); 60 FR 24,880 (May 10, 1995); 61

FR 21,203 (May 9, 1996), and 62 FR

13,164 (March 19, 1997). This report

does not provide an exclusive 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 April 1996 a revised

edition of An Introduction to

Administrative Protective Order Practice

in Antidumping and Countervailing

Duty Investigations (Pub. No. 2961).

This document is available upon request

from the Office of the Secretary, U.S.

International Trade Commission, 500 E

Street, SW, Washington, DC 20436,

telephone (202) 205–2000.

I. In General

The current APO form for

antidumping and countervailing duty

investigations, which the Commission

has used since March 1995, requires the

applicant to swear that he or she will:

(1) Not divulge any of the BPI

obtained under the APO and not

otherwise available to him, 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
Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 / Notices 25065

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 decisionmaking for the

interested party which is a party to the

investigation; and (d) have submitted to

the Secretary a signed Acknowledgment

for Clerical Personnel in the form

attached hereto (the authorized

applicant shall sign such

acknowledgment and will be deemed

responsible for such persons’

compliance with the APO);

(2) Use such BPI solely for the

purposes of the Commission

investigation [or for binational panel

review of such Commission

investigation or until superceded by a

judicial protective order in a judicial

review of the proceeding];

(3) Not consult with any person not

described in paragraph (1) concerning

BPI disclosed under this APO 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 socalled 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 the

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 such 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 the APO; and

(10) Acknowledge that breach of the

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 protective order 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.

Commission employees are not

signatories to the Commission’s APOs

and do not obtain access to BPI through

APO procedure. Consequently, they are

not subject to the requirements of the

APO with respect to the handling of

BPI. However, Commission employees

are subject to strict statutory and

regulatory constraints concerning BPI,

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 rules relating to BPI is the

‘‘24-hour’’ rule. This rule provides that

parties have one business day after the

deadline for filing documents

containing BPI 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. 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 amendment

document pursuant to Rule 201.14(b)(2).

II. Investigations of Alleged APO

Breaches

An investigation of an alleged APO

breach in an antidumping or

countervailing duty investigation

commences when the Secretary, acting

under delegated authority, issues to the

alleged breacher a letter of inquiry to

ascertain the alleged breacher’s views

on whether a breach has occurred. 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 or aggravating

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 has determined that

although a breach has occurred,

sanctions are not warranted, and

therefore has found it unnecessary to

issue a second letter concerning what

sanctions might be appropriate. Instead,

it issues a warning letter to the

individual. The Commission retains sole

authority to determine whether a breach

has occurred and, if so, the appropriate

action to be taken.

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, Section 135(b) of the Customs and

Trade Act of 1990, and 19 U.S.C.

1677f(g).

The breach most frequently

investigated by the Commission

involves the APO’s prohibition on the

dissemination of BPI to unauthorized

persons. Such dissemination usually
25066 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 / Notices

occurs as the result of failure to delete

BPI from public versions of documents

filed with the Commission or of

transmission of proprietary versions of

documents to unauthorized recipients.

Other breaches have included: the

failure to properly bracket BPI in

proprietary documents filed with the

Commission; the failure to immediately

report known violations of an APO; and

the failure to adequately supervise nonlegal personnel in the handling of BPI.

Sanctions for APO violations serve

two basic interests: (a) Preserving the

confidence of submitters of BPI in the

Commission as a reliable protector of

BPI; and (b) disciplining breachers and

deterring future violations. As the

Conference Report to the Omnibus

Trade and Competitiveness Act of 1988

observed, ‘‘the effective enforcement of

limited disclosure under administrative

protective order depends in part on the

extent to which private parties have

confidence that there are effective

sanctions against violation.’’ H.R. Conf.

Rep. No. 576, 100th Cong., 1st Sess. 623

(1988).

The Commission has worked to

develop consistent jurisprudence, not

only in determining whether a breach

has occurred, but also in selecting an

appropriate response. In determining

the appropriate response, the

Commission generally considers

mitigating factors such as the

unintentional nature of the breach, the

lack of prior breaches committed by the

breaching party, the corrective measures

taken by the breaching party, and the

promptness with which the breaching

party reported the violation to the

Commission. The Commission also

considers aggravating circumstances,

especially whether persons not under

the APO actually read the BPI. The

Commission considers whether there

are prior breaches within the previous

two-year period and multiple breaches

by the same person or persons in the

same investigation.

The Commission’s rules permit

economists or consultants to obtain

access to BPI under the APO 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). Economists and consultants who

obtain access to BPI 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.

III. Specific Investigations in Which

Breaches Were Found

The Commission presents the

following case studies to educate users

about the types of APO breaches found

by the Commission. The case studies

provide the factual background, the

actions taken by the Commission, and

the factors considered by the

Commission in determining the

appropriate actions. The Commission

has not included some of the specific

facts in the descriptions of

investigations where disclosure could

reveal the identity of a particular

breacher. Thus, in some cases, apparent

inconsistencies in the facts set forth in

this notice result from the Commission’s

inability to disclose particular facts

more fully.

Case 1: Counsel for a party to a

Commission investigation filed a

submission with International Trade

Administration, Department of

Commerce (‘‘Commerce’’) in a

Commerce investigation and served

copies of the submission on the parties

to the Commerce investigation. The

submission contained BPI which

counsel had obtained under a

Commission APO. The Commission

determined that one attorney did not

breach the APO because he did not

participate in the preparation or review

of the Commerce submission and his

name did not appear on the submission.

The Commission determined that two

attorneys who prepared and reviewed

the submission filed with Commerce

breached the APO. In reaching its

decision to issue private letters of

reprimand, the Commission considered

that the BPI was viewed by an

unauthorized person employed at

Commerce. In addition, unauthorized

persons may have viewed the BPI at the

various law firms that were served

copies of the submission. At least one

person authorized to review BPI

released under Commerce APOs was not

authorized to review BPI released under

the Commission’s APO. The

Commission noted that an even more

important consideration was the

admission by the attorneys that they

were not aware of the explicit condition

of the APO that information obtained

under a Commission APO may not be

used in any other investigation

including the companion Commerce

inquiry. This lack of awareness called

into question the level of care that the

attorneys exercised in regard to their

obligations under the APO. In reaching

its decision, the Commission also

considered the mitigating factors that

the two attorneys had not previously

breached a Commission APO and that

both reported and attempted to correct

the breach promptly.

Case 2: Counsel in an investigation

submitted a public version of a

document in which certain BPI

contained in footnotes was not

bracketed or redacted. The text to which

the footnotes referred was bracketed.

The BPI in question was contained in an

attachment to a questionnaire response.

The Commission staff discovered the

possible breach, and the Secretary

contacted counsel to inquire about the

failure to bracket and redact the

information in the footnote. Counsel

responded immediately by submitting

corrected pages to the Commission and

persons on the service list, and

instructing the recipients that the

original pages be destroyed. In response

to the Commission’s inquiry about the

possible breach, counsel argued that the

information was available in the public

domain because the information in

question was not marked as confidential

and was not bracketed. The

Commission’s consistent practice with

regard to information submitted in

connection with a questionnaire

response is that it must be treated as

confidential unless the party served

with the response can establish that the

material is elsewhere available in the

public domain. Counsel failed to

establish that the unbracketed and

unredacted material was available in the

public domain at the time that they filed

the document in question. Thus, the

Commission disagreed and determined

that counsel breached the APO and

issued warning letters. In reaching its

decision, the Commission took into

account that the attorneys had not

previously breached an APO; there was

no bad faith or willful conduct involved

in connection with this breach; and they

moved promptly to mitigate the breach

once informed about it by the Secretary.

It did not appear that any non-signatory

to the APO had reviewed the BPI.

Case 3: Two attorneys filed the public

version of an in camera hearing

submission with bracketed but

unredacted BPI. They discovered the

breach the following day, immediately

reported it to the Commission, retrieved

all copies from parties on the service list

and the Commission, and obtained from

each party a certification that no copies
Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 / Notices 25067

were reviewed by non-signatories to the

APO. The public version retrieved from

the Commission’s files had not been

reviewed by any member of the public.

The Commission determined that the

two attorneys breached the APO and

issued warning letters to them. In

reaching its decision not to sanction the

attorneys, the Commission considered

that they had not been involved in prior

breaches and they took action

immediately after discovering the

breach to limit the possibility of

disclosure to unauthorized persons.

A second alleged breach occurred on

the same day when four attorneys from

the same firm filed the public version of

a brief which contained three items of

what appeared to be unredacted BPI.

The Commission Secretary’s office

notified counsel that the submission

appeared to contain unredacted BPI.

The law firm retrieved copies of the

pages in question and filed corrected

versions with the Commission, as

requested by the Secretary. The

Commission determined that two of the

attorneys committed a breach of the

APO when they failed to redact one

item of BPI from the brief. In deciding

to issue warning letters, the Commission

considered that the attorneys had not

been involved in prior breaches and

took appropriate action upon

discovering the breach. The

Commission also noted that the

information in question was disclosed

publicly by the submitter very shortly

after the breach.

The Commission determined that

disclosure of the other two items in

question was not a breach of the APO

because the information was not BPI.

One item was publicly available and the

other item was obtained directly from

the client and not under the APO. The

Commission determined that two of the

attorneys did not breach the APO

because they did not participate in the

final review of the public version of the

brief.

Case 4: Employees for an economic

consulting firm prepared and

distributed documents containing

bracketed but unredacted BPI at a public

hearing. A signatory of the APO, an

attorney for another party, noticed that

BPI had not been redacted from the

documents and immediately informed

the Secretary, the law firm, and the

consulting firm. All copies of the

handout were retrieved immediately

and all persons at the hearing who had

copies of the handout in their

possession, with the exception of the

attorney who first noticed the BPI,

stated that they did not review the BPI

contained in the handouts. The

Commission determined that two

consultants breached the APO and

issued private letters of reprimand. In

reaching the decision that the breach

had occurred, the Commission noted

that the actual receipt and review of BPI

by unauthorized persons is not a

precondition for a finding of a violation

of the APO. Failure to follow the rules

which are protective of the information

by leaving the information unprotected

and potentially releasable is sufficient to

constitute a breach of the APO. In

reaching its decision to issue private

letters of reprimand, the Commission

considered that this was the second

time in two years that the consultants

had breached an APO. In reaching its

decision, the Commission also

considered the mitigating factors that

the breach was inadvertent, the

Commission was promptly informed of

the breach, and the consultant took

immediate steps to mitigate any possible

damage from the breach.

The Commission found that two other

consultant firm employees, identified as

clerical personnel in the APO

applications, did not breach the APO

because their work in preparing the

documents was subject to review by the

senior consultants. Although the

consultants were under the direction

and control of the lead attorney at a law

firm, the Commission determined that

no attorney at the firm was responsible

for the breach because the consulting

firm employees revised the documents

after the attorneys had reviewed what

they thought were the final versions,

and no one advised the attorneys of the

revision or requested that the attorneys

review the revised documents.

Case 5: (See Case B of the 24-hour

rule.) Attorneys, signatories to the APO

in an investigation, failed to bracket and

redact BPI from a footnote in the public

version of a brief. The Commission sent

a letter of inquiry to three attorneys but

determined that one of them did not

breach the APO because he was not

involved in the drafting of the public

version of the brief or in any review or

appraisal of data included in the

submission. The Commission

determined that two attorneys breached

the APO and issued one attorney a letter

of reprimand and the other a warning

letter. In reaching its decision to issue

a private letter of reprimand to one of

the attorneys, the Commission took into

account the principal aggravating

circumstance that it was the second

time within a few months that this first

attorney had breached an APO by failing

to bracket and redact BPI from a

submission. The Commission also

considered that there was no evidence

of willful disregard of the APO.

However, the breach was not the result

of an accident or inadvertence, but the

result of a conscious decision not to

bracket information which the attorney

continued to maintain was justified. The

Secretary’s office discovered the breach

and, once advised that there had been

a breach, the attorney moved promptly

to mitigate the breach by retrieving the

offending pages of the brief and

replacing them with corrected pages.

In reaching its decision to issue a

warning letter to the second attorney,

the Commission took into consideration

that he had no prior APO violations.

This attorney was involved in the

preparation of the documents, but did

not make bracketing decisions with

respect to the submission and was not

in a position to countermand the

attorney who made those decisions.

Case 6: Four attorneys were named as

possibly breaching the APO by filing a

submission before the Department of

Commerce (Commerce) containing BPI

obtained under the Commission APO

and by labeling the submission public

even though it contained BPI. The BPI

in question had been obtained from the

confidential version of the petition to

which counsel had access under the

Commission’s APO but had not yet

gained access to it under the Commerce

APO. The day after the submission of

the document to Commerce, the

attorneys informed the Commission in

writing of the potential breaches

stemming from the submission to

Commerce and took immediate steps to

retrieve the submission and prevent the

improper disclosure to unauthorized

individuals.

The Commission found that two of

the attorneys did not breach the APO

because they played no role in either the

preparation or filing of the submission.

The Commission determined that the

two other attorneys committed two

distinct breaches of the APO by

including Commission BPI in a

Commerce submission and by

incorrectly labeling that document as a

public document. The Commission

issued private letters of reprimand to

the two attorneys and reminded them

that information obtained under the

Commission’s APO is not to be used in

other agency proceedings without first

obtaining the written consent of the

Secretary of the Commission and the

party from whom the BPI was obtained.

The Commission considered as

mitigating factors the fact that the

attorneys had no previous breaches;

they reported and corrected the breach

promptly; and the firm strengthened its

APO procedures subsequent to the

breaches. Moreover, it appeared that the

mislabeling of the document was

unintentional and due to mistake or
25068 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 / Notices

oversight. In reaching its decision to

issue private letters of reprimand, the

Commission considered that there were

two separate breaches in the same

investigation and that the document was

placed in a public file at Commerce

where it may have been viewed by

unauthorized persons.

Case 7: Two attorneys, an economist,

and a secretary from a law firm

representing a party in an investigation

failed to certify within a Commission

deadline that APO documents in their

possession had been destroyed and to

attest to their good faith belief that there

was no unauthorized access by any

person to the APO materials. Pursuant

to the APO, counsel was required to

destroy the BPI documents and provide

certification to that effect within 60 days

of the termination of the investigation.

However, since counsel appealed the

Commission’s determination to the U.S.

Court of International Trade, the firm

was permitted to retain the documents

pending its application for a Judicial

Protective Order (JPO). If a JPO is not

sought, signatories to the APO in the

law firm are required to destroy the

documents and to provide certification

promptly after 150 days have elapsed

from the termination of the

investigation. Counsel did not apply for

a JPO and failed to provide the

certification promptly after the 150 days

had passed. In their response to the

Commission’s inquiry, counsel provided

the required certification indicating that

the documents had been destroyed

immediately after the termination of the

investigation. The Commission

determined that the two attorneys and

the economist breached the APO by not

providing the certification within the

required time period, and issued

warning letters. In reaching a decision

to issue warning letters, the Commission

considered that there was no access to

the APO documents by any

unauthorized person; the breach

appeared to have been unintentional;

the attorney and economist took prompt

action to remedy the breach; and they

had no prior APO breach violations

within the last two years. The

Commission concluded that the

secretary did not breach the APO as the

Commission generally has not held

clerical personnel responsible for

breaches unless they have played a

direct role in the circumstances

contributing to a breach.

Case 8: An attorney representing a

party to a Commission investigation

filed a letter with the Commission

which was designated as public,

although it contained bracketed but

undeleted BPI. The Commission

Secretary notified the attorney about the

possible breach. In response, the

attorney filed a revised letter and

immediately took steps to retrieve the

document from the other parties. Two

weeks later the attorney filed a public

version of a prehearing brief which

contained BPI in one of the exhibits.

Again, the Secretary notified the

attorney who immediately took steps to

retrieve the document from the other

parties and prevent unauthorized

disclosure. The Commission determined

that breaches had occurred and issued

a private letter of reprimand. In reaching

its decision to issue a private letter of

reprimand the Commission considered

that, although the attorney had

committed no prior breaches, the

attorney had committed two separate

breaches in the same investigation

within weeks of each other. The

Commission also considered the

mitigating factors that, when informed

of the breaches, the attorney took

immediate steps to retrieve the

information and prevent its

unauthorized disclosure; the breaches

were unintentional; and the law firm

took action to prevent future violations

of this nature.

IV. Investigations Involving the 24-

Hour Rule

Under Commission rule 207.3(c),

parties that submit a proprietary version

of a document with the Commission

pursuant to a Commission deadline

have one business day in which to

check and correct bracketing of BPI

before filing the nonproprietary version

of the document. The rule expressly

states however, that only bracketing

changes may be made without leave of

the Commission in the one business day

interval between the filing of the

confidential and the filing of the

nonconfidential document. A party

desiring to make any other changes,

including correction of typographical

errors, must request leave of the

Commission to do so.

Case A: Counsel to a party in an

investigation filed a public version of

the postconference brief which

contained text which was not present in

the confidential version of the brief.

Leave of the Commission was not

sought to make the non-bracketing

change, nor was any mention of the

additional material made when the

public version of the brief was filed. The

Commission determined that counsel

violated Commission Rule 207.3 and

issued a warning letter to each of the

four attorneys who were signatories on

the brief. In its letter, the Commission,

noting that counsel’s letter responding

to the Commission inquiry stated that

the change was made within one

business day, advised counsel that the

rule permits only bracketing changes

and deletion of confidential

information. Parties must request leave

of the Commission to make a late filing

to make any other changes to a

previously filed document.

In reaching its decision to issue

warning letters, the Commission

considered that the addition of text

appeared to be inadvertent and counsel

had no previous record of violating the

24-hour rule.

Case B: (See Case 5 of the APO

Breaches.) Two attorneys representing a

party to a Commission investigation

made changes to a submission that did

not involve bracketing of information

without receiving prior leave of the

Commission. The Commission

determined that the two attorneys had

violated the 24-hour rule by making the

non-bracketing changes to submissions

without seeking prior leave from the

Commission. The Commission also

found that the attorneys had breached

the APO in the same investigation, but

determined not to impose any

additional sanction upon the attorneys

for violation of rule 207.3, the 24-hour

rule. One attorney received a warning

letter for the APO breach and the 24-

hour rule violation. The Commission

issued a private letter of reprimand to

the second attorney for the APO breach

and the 24-hour rule violation because

it was his second breach violation

within several months.

The Commission determined not to

hold a third attorney at the firm

responsible for violation of the 24-hour

rule because he played no role in the

preparation of the brief.

Case C: Three attorneys submitted a

change to the filing of the public version

of their prehearing brief prior to being

granted leave to make the change. The

Commission determined that the

attorneys violated Commission Rule

207.3(c) and issued warning letters. In

determining to issue warning letters, the

Commission considered that the three

attorneys had no previous record of

having violated Rule 207.3(c). In

addition, since the attorneys had sought

to make the change in their BPI version

of the brief, filing the change to the

public version prior to approval of this

leave appeared to be an inadvertent

procedural error.

By order of the Commission.

Issued: April 29, 1998.

Donna R. Koehnke,

Secretary.

[FR Doc. 98–12010 Filed 5–5–98; 8:45 am]

BILLING CODE 7020–02–P