Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Notices 51843 

By order of the Commission. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. E8–20532 Filed 9–4–08; 8:45 am] 

BILLING CODE 7020–02–P 

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 

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 2007 of 

breaches in proceedings under Title VII 

and section 337 of the Tariff Act of 

1930, the only proceedings in which 

investigations of breaches were 

completed during the year. The 

Commission intends that this report 

inform representatives of parties to 

Commission proceedings as to some 

specific types of APO breaches 

encountered by the Commission and the 

corresponding types of actions the 

Commission has taken. 

FOR FURTHER INFORMATION CONTACT: 

Carol McCue Verratti, Esq., Office of the 

General Counsel, U.S. International 

Trade Commission, telephone (202) 

205–3088. Hearing impaired individuals 

are advised that information on this 

matter can be obtained by contacting the 

Commission’s TDD terminal at (202) 

205–1810. General information 

concerning the Commission can also be 

obtained by accessing its Internet server 

(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 

that the Commission has completed 

during calendar year 2007, including a 

description of actions taken in response 

to these breaches. 

Since 1991, the Commission has 

published annually a summary of its 

actions in response to violations of 

Commission APOs and the 24-hour rule. 

See 56 FR 4846 (Feb. 6, 1991); 57 FR 

12335 (Apr. 9, 1992); 58 FR 21991 (Apr. 

26, 1993); 59 FR 16834 (Apr. 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); and 72 FR 50119 (August 30, 

2007). 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-bycase 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 decisionmaking for an 

interested party which is a party to the 

investigation; and (d) have signed the 

acknowledgment for clerical personnel 

in the form attached hereto (the 

authorized applicant shall also sign 

such acknowledgment and will be 

deemed responsible for such persons’

compliance with this APO); 

(2) Use such BPI solely for the 

purposes of the above-captioned 

Commission investigation or for judicial 

or binational panel review of such 

Commission investigation; 

(3) Not consult with any person not 

described in paragraph (1) concerning 

BPI disclosed under this APO or 

otherwise obtained in this investigation 

without first having received the written 

consent of the Secretary and the party 

or the representative of the party from 

whom such BPI was obtained; 

(4) Whenever materials e.g., 

documents, computer disks, etc. 

containing such BPI are not being used, 

store such material in a locked file 

cabinet, vault, safe, or other suitable 

container (N.B.: Storage of BPI on 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 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 

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51844 Federal Register / Vol. 73, No. 173 / Friday, September 5, 2008 / Notices 

1Procedures 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. 

(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 7 

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 1-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. 

Sanctions for APO violations serve 

two basic interests: (a) Preserving the 

confidence of submitters of BPI that the 

Commission is 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, ‘‘[T]he effective enforcement 

of limited disclosure under 

administrative protective order depends 

in part on the extent to which private 

parties have confidence that there are 

effective sanctions against violation.’’

H.R. Conf. Rep. No. 576, 100th Cong., 

1st Sess. 623 (1988). 

The Commission has worked to 

develop consistent jurisprudence, not 

only in determining whether a breach 

has occurred, but also in selecting an 

appropriate response. In determining 

the appropriate response, the 

Commission generally considers 

mitigating factors such as the 

unintentional nature of the breach, the 

lack of prior breaches committed by the 

breaching party, the corrective measures 

taken by the breaching party, and the 

promptness with which the breaching 

party reported the violation to the 

Commission. The Commission also 

considers aggravating circumstances, 

especially whether persons not under 

the APO actually read the BPI. The 

Commission considers whether there 

are 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 

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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 usually occurs as 

the result of failure to delete BPI 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-legal 

personnel 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 nonsignatory, 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 nonsignatory 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 where they did not 

technically breach the APO but where 

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. 

A letter was sent to all counsel on 

active service lists in mid-March 2007. 

Counsel were 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 representing 

clients in section 337 investigations 

should send a notice to the Commission 

if they are no longer participating in a 

section 337 investigation or the 

subsequent appeal of the Commission’s 

determination. In Case 10 of the 

summaries of completed 2005 APOB 

investigations published in the Federal 

Register on July 12, 2006 (71 FR 39361), 

the Commission found that a lead 

attorney, who left a law firm which 

represented a respondent in a 

Commission investigation after the 

investigation was completed but before 

the appeal of the Commission’s 

determination had ended, breached the 

APO by not informing the Commission 

of his departure and that he should no 

longer be a signatory to the APO. In 

addition, the Commission found that he 

had also breached the APO by failing to 

ensure that his former firm complied 

with the APO requirements for 

returning and destroying the 

confidential materials obtained under 

the APO. Thus, individual counsel in 

section 337 investigations should take 

care to inform the Commission of their 

departure from a position for which 

they are a signatory to a Commission 

APO and to inform the Commission 

about their disposition of CBI obtained 

under the APO that is 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 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 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 of 

such facts 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: The Commission determined 

that three attorneys and two legal 

assistants breached an APO by failing to 

redact unbracketed BPI in the public 

version of a posthearing brief and 

serving it on attorneys named on the 

public service list. The Commission also 

found that two of the attorneys 

responsible for this first breach, along 

with a fourth attorney, committed a 

second breach by using the BPI obtained 

under APO on behalf of one client in a 

submission to a World Trade 

Organization (WTO) dispute resolution 

panel on behalf of another client. 

The Commission issued a private 

letter of reprimand to three of the 

attorneys for the first breach. In reaching 

its decision concerning those attorneys, 

the Commission considered the facts 

that (1) the breach was discovered by 

the Commission Secretary; (2) a long 

period of time, approximately eight 

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months, elapsed between the filing of 

the brief and the discovery of the 

breach; (3) the firm could not provide a 

definitive response as to whether the 

brief containing BPI was read by nonsignatories; and (4) while the lawyers 

responded quickly with regard to parties 

other than their clients, they delayed 

contacting their own clients until two 

days after notification of the breach. The 

Commission did note that mitigating 

circumstances existed because the 

breach was inadvertent, the attorneys 

had no prior APO breaches within the 

two-year period normally considered by 

the Commission for sanctions purposes, 

the firm took immediate steps to correct 

the breach, and the firm strengthened its 

internal procedures to require that a 

third attorney review the public version 

of documents to ensure that all 

redactions have been implemented. The 

Commission issued a warning letter to 

the legal assistants finding that they 

were acting under the supervision of the 

attorneys at the time of the breach. 

With respect to the second breach, the 

Commission considered the mitigating 

circumstance that, although the 

submissions to the WTO dispute 

resolution panel contained statements 

that could not have been made without 

knowledge of the confidential record, no 

BPI was disclosed to unauthorized 

persons. As was stated above, two of the 

attorneys responsible for this second 

breach were issued private letters of 

reprimand which included the 

Commission’s consideration of this 

second breach. The third attorney who 

was responsible for only the second 

breach was issued a warning letter. The 

Commission decided to issue a warning 

letter because, although the breach was 

not discovered by his firm, no BPI was 

disclosed to unauthorized persons, he 

had not breached an APO in the past 

two years, and the breach was 

unintentional. 

Case 2: The Commission determined 

that several attorneys and one paralegal 

breached an APO by failing to return or 

destroy certain materials at the 

conclusion of a Commission section 337 

investigation. The Commission also 

found that one of the attorneys and the 

paralegal committed a second breach by 

permitting the disclosure of CBI subject 

to an APO to unauthorized persons at 

their firm. 

Upon conclusion of this section 337 

investigation, the parties to the 

investigation agreed that, 

notwithstanding the APO, they would 

retain an archival copy of certain 

documents produced by each other. 

However, documents not subject to that 

separate agreement and any CBI 

produced by third parties were to be 

returned or destroyed. The attorneys 

and the paralegal failed to return or 

destroy all of the materials containing 

CBI that were not covered by the 

agreement. 

The Commission issued warning 

letters to ten attorneys for the first 

breach. These attorneys had no prior 

APO breaches within the two-year 

period normally considered by the 

Commission for sanctions purposes, and 

the breach was unintentional. 

The Commission issued private letters 

of reprimand to the attorney and 

paralegal who had committed both the 

first and second breaches. In reaching 

its decision, the Commission considered 

the facts that (1) there were two 

breaches, (2) the CBI appeared to have 

been viewed by at least some 

unauthorized firm personnel before the 

CBI was discovered and secured, and (3) 

there was a significant delay in 

notifying the Commission of the second 

breach. The Commission did note that 

mitigating circumstances existed 

because both of the breaches appeared 

to have been inadvertent, neither the 

attorney nor the paralegal had 

committed breaches prior to the 

breaches in this instance, and the 

attorney was cooperative and took steps 

to protect the CBI and inform the 

Commission of the second breach. 

The Commission also found that four 

other attorneys and two paralegals did 

not breach the APO. These individuals 

were not in a position to arrange for the 

return or destruction of the CBI at issue. 

The Commission also considered 

whether there was a violation of 19 CFR 

210.34(d) by two attorneys for failing to 

report to the Commission immediately 

upon learning that CBI disclosed to 

them pursuant to the protective order 

was the subject of a discovery request. 

The Commission decided that there was 

no violation because the attorneys 

fulfilled their obligation by reporting to 

the Commission within four days of the 

discovery request. 

Case 3: The Commission determined 

that three attorneys breached an APO by 

their failure to redact certain BPI in the 

public version of a prehearing brief. In 

the brief, the attorneys provided import 

data from multiple countries for the 

subject merchandise. The text indicated 

that data from one named importer was 

not included. On the next page the brief 

contained a chart with import data that 

included the previously excluded 

importer, although that fact was not 

stated. 

The Commission found the lawyers’

argument that the information in the 

chart did not contain BPI was 

unpersuasive. The amount in the chart 

was larger than what had been 

discussed on the previous page where 

the one importer’s data was excluded. In 

addition, the data in the chart 

corresponded closely to BPI in the 

prehearing staff report. Although the 

lawyers had argued that the information 

was publicly available, the Commission 

noted that the submissions regarding 

this matter identified no public source 

for the information. 

The Commission issued warning 

letters to the three attorneys for this 

breach. The Commission noted that 

mitigating circumstances existed 

because the breach was inadvertent, the 

attorneys had no prior APO breaches, 

they took immediate steps to correct the 

breach, they promptly reported the 

breach to the Commission’s Secretary, 

and there was no evidence that any 

unauthorized individual viewed the 

BPI. 

Case 4: The Commission found that a 

lead attorney breached an APO by 

forwarding an e-mail from the 

Commission with an attachment 

containing BPI to executives of a client 

who were not subject to the APO. 

The attachment was a copy of the 

Commission’s confidential staff report 

sent by a Commission staff member. 

Although the e-mail did not identify the 

attachment as containing BPI, the name 

of the attachment ended in ‘‘BPI,’’ and, 

once opened, each of its pages were 

identified as confidential. 

The attorney forwarded the e-mail to 

three executives at his client’s firm 

without opening the attachment or 

realizing that it contained BPI. After 

forwarding the e-mail the attorney 

opened the attachment and immediately 

contacted the recipients and instructed 

them to delete the attachment without 

reading it. The attorney then informed 

the Commission of the breach. 

In his affidavit the attorney indicated 

that all recipients deleted the 

attachment without opening it. The 

attorney also stated that in his 

experience Commission staff did not 

distribute BPI material by e-mail. 

The Commission has consistently 

held that an APO breach occurs when 

a document containing BPI is 

distributed to unauthorized persons 

even if they do not view the BPI. 

Accordingly the Commission found that 

a breach occurred in this case. Further, 

the Commission found that a cursory 

inspection of the attachment would 

have indicated that it contained BPI, 

which suggests the attorney bore some 

responsibility for the breach. 

The Commission issued a warning 

letter rather than a private letter of 

reprimand because the breach was 

unintentional, the attorney had not 

committed a breach within the most 

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recent two-year period normally 

considered by the Commission for 

sanctions purposes, the attorney acted 

promptly to mitigate the breach by 

instructing the recipients of the e-mail 

to delete the attachment, and it 

appeared that BPI was not viewed by 

any unauthorized persons. 

Case 5: The Commission found that 

an attorney breached the APO by 

sending an e-mail with an attachment 

containing BPI to two employees of his 

client who were non-signatories to the 

APO. 

The Commission issued a warning 

letter to the attorney because there were 

several mitigating circumstances and no 

aggravating circumstances. The breach 

was unintentional and the attorney 

discovered the breach promptly. The 

attorney immediately notified the 

client’s employees not to read the 

attachment and to delete the e-mail with 

its attachment. Thus, it appeared that 

neither of the client’s employees viewed 

the attachment. In addition, this was the 

attorney’s only breach in which he had 

been involved in the previous two years. 

Case 6: The Commission found that 

an associate attorney breached an APO 

when he failed to redact BPI from the 

public version of a post-hearing brief. 

The Commission found that the lead 

attorney did not breach the APO 

because he did not participate in 

finalizing the brief and he reasonably 

relied on the associate attorney. 

The Commission notified the 

associate attorney that the public 

version of his firm’s brief contained BPI. 

The BPI was contained in an exhibit 

that escaped the firm’s review 

procedure because of a last-minute 

change. Upon being notified of the 

breach, the associate attorney asked 

each party on a public service list to 

confirm that the BPI was either not 

received by any unauthorized party or 

was recalled from any unauthorized 

party and destroyed. According to his 

affidavit, the associate attorney believed 

that no unauthorized party received the 

BPI. 

Because BPI was made available to 

unauthorized parties, the Commission 

found that the associate attorney 

breached the APO. The Commission 

issued a warning letter rather than a 

private letter of reprimand to the 

associate attorney even though the 

Commission rather than the associate 

attorney’s firm discovered the breach. 

The mitigating circumstances the 

Commission considered were that the 

breach was unintentional, the associate 

attorney acted immediately to cure the 

breach, no person involved in the 

investigation had committed previous 

violations of an APO, and the firm’s 

submissions supported a finding that no 

unauthorized parties viewed the BPI. 

Case 7: A law firm was involved in 

two breaches of an APO. Both breaches 

involved service on other law firms that 

were no longer on the confidential 

service lists. The Commission found 

that the first breach was the 

responsibility of a paralegal. She had 

been charged with preparing the 

confidential version of a document 

containing expert testimony for filing 

and service. Although it was office 

procedure to check the certificate of 

service against the Commission’s Web 

site, she failed to do so. As a result of 

this error and her use of an outdated 

service list, a law firm that was not 

entitled to receive BPI was served with 

the confidential version of the expert 

testimony. This first breach was not 

discovered until after discovery of the 

second breach. 

The second breach occurred two 

weeks later when two attorneys, a 

partner who was the lead attorney and 

an associate, finalized the firm’s 

posthearing brief for filing and service. 

They had been provided with the same 

outdated service list by the paralegal, 

who then left the office on a medical 

emergency; the two attorneys failed to 

check whether the certificate of service 

was current. As a result of the attorneys’

use of the outdated service list, two 

firms that were not entitled to receive 

BPI were served with the confidential 

version of the posthearing brief. 

The lead attorney discovered the 

second breach on the first business day 

after the filing of the posthearing brief 

and immediately contacted the nonsignatory recipients of the posthearing 

brief. Both firms indicated that the 

packages had not been opened and 

returned them with the seals on the 

internal envelopes intact. The first 

breach was then discovered when one of 

the firms receiving the posthearing brief 

also returned the confidential expert 

testimony and informed the associate 

attorney that the document had been 

stored for safekeeping and never 

examined. 

The Commission found the paralegal 

responsible for the first breach because 

she failed to check the certificate of 

service against the latest APO service 

list. She was issued a warning letter and 

was not sanctioned because she had not 

breached an APO within the previous 

two years, the breach was unintentional, 

no non-signatory read the BPI, prompt 

action was taken by the firm to remedy 

the breach, and the firm had taken 

measures to assure that this type of error 

would not occur in the future. 

The Commission found the partner 

and the associate responsible for the 

second breach. The partner received a 

warning letter, and the associate a 

private letter of reprimand. The 

Commission considered the mitigating 

circumstances that the breach was 

unintentional, the unauthorized 

recipients did not read the BPI, the 

breach was discovered promptly and 

immediate action was taken to remedy 

the breach, and, solely with regard to 

the partner, he had not breached an 

APO within the previous two years. The 

associate received a private letter of 

reprimand because he had been found 

liable for a breach of another APO 

within the previous two years. 

Case 8: The Commission found a lead 

attorney, an associate attorney, and a 

paralegal liable for the breach of an APO 

for failing to delete all of the bracketed 

information from the public version of 

a brief filed by their law firm. 

The associate attorney instructed the 

paralegal to prepare an initial public 

version of the brief by running a 

computer macro on the electronic 

document and manually redacting nonelectronic portions. The associate 

attorney reviewed the brief and tabbed 

a number of bracketing revisions. A 

second attorney, not found liable for the 

breach, reviewed the tabbed revisions 

and suggested more changes. The 

associate attorney then told the 

paralegal to make the changes. However, 

the associate attorney later found a new 

issue regarding conformity of the BPI 

and public versions that required a new 

public version. Citing time constraints 

and a busy filing day, the associate 

attorney chose to perform the final 

check of the brief himself instead of 

following firm procedure of asking a 

third attorney to review the public 

version. The revised BPI and public 

versions were then filed with the 

Commission. Later the same day, the 

second attorney called the associate 

attorney at home to say that the 

paralegal, while preparing service 

copies of the brief, had found text in the 

public version that was bracketed but 

not deleted. The associate attorney 

contacted the paralegal and told her not 

to serve the public versions of the brief 

that night because it was late and he 

needed to review the correction. The 

next morning, the associate attorney 

telephoned the Secretary’s Office to 

report the issue, and the paralegal 

arrived with replacement pages for the 

Commission copies. As the Commission 

copies had not been distributed, the 

paralegal was able to replace the pages 

and shred the incorrect pages. The 

paralegal then distributed the service 

copies to the parties. 

The Commission found the paralegal 

responsible for the breach because the 

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paralegal had the responsibility to run 

the computer macro on the brief to 

redact the bracketed information. 

However, the Commission determined 

that there were several mitigating factors 

because she discovered the breach 

herself, immediately reported the 

information to others in the firm, moved 

promptly to mitigate the effects of the 

breach, and had not been found to have 

violated the APO in the last two years; 

in addition, no unauthorized persons 

viewed the unredacted BPI. 

Consequently, the Commission decided 

to issue a warning letter to the paralegal. 

The Commission found the lead 

attorney responsible for the breach 

because he had failed to provide 

adequate supervision over the associate 

attorney in this matter although he had 

reason to know that the associate 

attorney had previously breached the 

APO in a separate and unrelated 

proceeding. The Commission decided to 

issue a warning letter to the lead 

attorney because the breach was 

unintentional, no unauthorized persons 

actually saw the unredacted BPI, the 

breach was discovered promptly and 

remedied expeditiously, and this was 

the only breach in which the lead 

attorney had been involved in the past 

two years. 

The Commission found the associate 

attorney responsible because he had 

final responsibility for reviewing the 

document and authorized the filing of 

the document. The Commission 

considered the mitigating factor that the 

attorney acted quickly to remedy the 

situation. Technically the attorney’s 

decision to delay serving the public 

version on the parties violated the 

Commission’s twenty-four hour rule, 

but the Commission determined that the 

violation of the rule did not lead to any 

prejudicial effect because hand 

delivering the brief the next day ensured 

the parties received the brief at the same 

time they would have received it via 

overnight mail. Because of the lack of 

prejudicial effect, the attorney’s method 

of mitigating the breach was not 

determined to be an aggravating factor. 

The associate’s prior breach, however, 

was found to be an aggravating 

circumstance. Although the breach 

occurred more than two years 

previously, the Commission issued a 

sanction for the prior breach within the 

two year period. An additional 

aggravating factor was that the internal 

firm procedure that the associate 

attorney overrode, by not having a third 

attorney review the brief, was the 

procedure established in response to the 

attorney’s first breach. 

Because the attorney had already 

received a private letter of reprimand for 

the first breach, the Commission in this 

case issued a private letter of reprimand 

containing an additional condition. The 

associate attorney was prohibited from 

being the final decision-maker at his law 

firm on any APO issues for a period of 

twelve months. For example, he cannot 

be the final decision-maker at his firm 

as to whether certain information is BPI, 

and he cannot be the final person to 

review the public version of a document 

before it is filed with the Commission or 

served on the relevant parties. 

Case 9: A law firm filed a public 

version of its final comments that 

contained unbracketed BPI. The 

Commission found that the two 

associate attorneys who were 

responsible for preparing the public 

version of the comments breached the 

APO. 

Shortly after the law firm submitted 

the public version to the Commission, 

counsel for one of the companies 

involved in the investigation contacted 

the law firm to request the bracketing of 

additional information in the law firm’s 

final comments. One of the attorneys of 

the filing firm promptly notified the 

Commission Secretary’s office, stopped 

service of the first public version of the 

final comments on the parties, and 

ensured that the Secretary did not place 

the first public version on the record. 

When the law firm submitted a revised 

public version of its final comments, 

counsel for the same company again 

contacted the law firm to request the 

bracketing of more information. That 

same day, the law firm prepared a 

second revised public version of the 

final comments, filed that version with 

the Commission, and served it on the 

parties. The law firm also contacted the 

parties who received the first revised 

version. One of the parties confirmed 

that the first revised version was 

destroyed unopened, while the other 

parties confirmed only destruction. 

The law firm argued that the 

information in question was not BPI 

because the type of information in 

question was general and normally not 

treated as BPI. However, the 

Commission found that the information 

was BPI and that it had been 

consistently bracketed by the 

Commission and other parties to protect 

the confidential information contained 

in the staff report and other briefs. The 

associate attorneys requested that the 

Commission reconsider its finding that 

a breach occurred on the basis that the 

information at issue was not BPI. The 

Commission denied their request 

because they did not provide any new 

arguments or evidence in support of a 

change in the finding about whether the 

information was BPI. 

The Commission determined that the 

lead attorney for the law firm was not 

responsible for the breach because his 

reliance on the associates for preparing 

the public version of his firm’s final 

comments was reasonable. The two 

associates had substantial experience 

preparing public versions of briefs and, 

at the time of his delegation to them, 

had no record of violating another APO 

within the previous two years. 

One of the associate attorneys 

received a warning letter for his breach. 

The Commission considered the 

mitigating circumstances that the breach 

was inadvertent and that the attorneys 

took immediate steps to notify the 

Commission, retrieve the offending 

documents, and prepare corrected 

copies of the final comments. The 

attorney receiving the warning letter 

had committed no APO breaches in the 

previous two years. Although there was 

an aggravating circumstance—the 

likelihood that unauthorized persons 

had viewed the BPI—the Commission 

chose not to sanction the attorney in 

light of the mitigating circumstance that 

the nature of the BPI and the attorney’s 

contact with the submitter of the 

information may have left him uncertain 

as to the status of the information. The 

Commission did advise the attorney, 

however, that, in the future, he should 

consult with Commission staff if he is 

uncertain about whether particular 

information is BPI. 

The second associate attorney 

received a private letter of reprimand for 

his breach. The Commission considered 

all of the same mitigating circumstances 

for this attorney except with respect to 

prior breaches. After the Commission 

determined that the attorney had 

breached the APO in this investigation, 

he was found to have breached the APO 

in another investigation that occurred 

prior to the breach in this investigation. 

Therefore, the Commission found an 

additional aggravating circumstance that 

warranted a private letter of reprimand. 

Case 10: The Commission found that 

a lead attorney and her legal secretary 

breached the APO by serving the 

confidential version of the final 

comments prepared by their firm on a 

law firm that had been removed from 

the APO service list. 

The attorney’s legal secretary used an 

outdated version of the APO service list 

to serve the final comments. The law 

firm’s APO procedures required the 

legal secretary to consult the updated 

APO service list maintained on the ITC 

Web site, but the legal secretary 

neglected to follow this procedure. 

Although the attorney reviewed the 

submission, she did not notice the 

mistake because the service list was the 

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same as previous service lists. The 

attorney noticed the mistake when she 

reviewed the service lists of the other 

parties. She immediately telephoned the 

firm that mistakenly received the final 

comments to ask that they return or 

destroy the brief, then followed up to 

confirm that the firm had destroyed the 

brief before any unauthorized person 

reviewed it. 

The Commission determined that 

both the lead attorney and her legal 

secretary violated the terms of the APO 

because disclosure of BPI to 

unauthorized persons, regardless of 

whether those persons viewed the BPI, 

constitutes an APO breach. However, 

the Commission determined not to 

initiate the second phase of the APO 

breach investigation because of a variety 

of mitigating circumstances that made 

issuing a warning letter the most 

appropriate response to the breach. 

These mitigating circumstances 

included the attorney’s prompt remedial 

action, her curing of the breach before 

unauthorized persons viewed the BPI, 

and her prompt report of the incident to 

the Commission. Furthermore, the 

attorney’s breach was unintentional and 

was her first breach within the past two 

years. Finally, the firm adopted a new 

procedure where the lead attorney 

personally checks the service list against 

the most current service list on the 

Commission’s Web site to ensure that a 

similar breach does not occur in the 

future. 

There were three investigations in 

which no breach was found: 

Case 1: The Commission determined 

that two attorneys and an economic 

consultant did not breach the APO 

when, in their final comments, they 

failed to bracket certain information that 

had been identified by the Office of the 

Secretary as BPI. The Commission also 

found that the same individuals did not 

breach the APO when they failed to 

redact certain information contained in 

brackets in the public version of the 

final comments filed with the 

Commission. 

The Commission found that the two 

sets of information in question were 

publicly available and the failure to 

bracket and to redact did not constitute 

breaches. The information that was 

contained in brackets but was not 

redacted in the public version of the 

final comments was information that 

was derived from a subscription service 

report that was maintained as 

confidential in the Commission’s staff 

report. In this case, however, prior to 

the issuance of the staff report, the law 

firm in question and another party had 

filed the same subscription service 

report with the Commission. Thus, the 

information was publicly available and 

independently available to the law firm 

in question, and the information that 

was not bracketed in the confidential 

version of the final comments was made 

publicly available in the Commission’s 

final staff report. 

Case 2: The Commission determined 

that three attorneys did not breach the 

APO because unbracketed information 

in a prehearing brief, identified by 

Commission staff as confidential, was 

not BPI. 

The information in the prehearing 

brief that initially appeared to be BPI 

were two unbracketed unit values. The 

unbracketed information provided 

percentage changes in average unit 

values as opposed to actual unit values, 

which were not disclosed. The 

Commission determined that disclosure 

of the unbracketed numbers did not 

reveal the BPI of any specific company. 

The bracketed average unit values were 

calculated using the BPI for more than 

three companies, and the identity of 

specific respondents was not disclosed 

publicly. Furthermore, it was unclear 

precisely what data were used to 

calculate the unit values. Therefore, it 

was impossible to back out the actual 

numbers or information of any 

individual company. 

Case 3: The Commission determined 

that attorneys did not breach the APO 

by inadvertently serving a confidential 

version of a motion on counsel for a law 

firm not included in the APO. 

Although the motion was designated 

‘‘Confidential,’’ the motion did not 

contain CBI. The purportedly 

confidential material in the motion 

consisted of a series of quotes from the 

confidential version of the Commission 

opinion. At the time of the motion’s 

filing, no public version of the opinion 

was available, which led attorneys at the 

firm in question to designate the motion 

as ‘‘Confidential’’ out of an abundance 

of caution. However, a review of the 

confidential and public versions of the 

Commission opinion revealed that 

although the confidential version of the 

opinion did contain CBI, the material 

quoted in the motion did not include 

confidential information. The law firm 

in question also took prompt remedial 

measures to request the destruction of 

all copies of the motion and modified 

their policies for service in the 

investigation to ensure APO 

compliance. 

As no CBI was disclosed, the 

Commission found no breach of the 

APO, but did caution the attorneys 

involved to be more careful in handling 

material designated as confidential. 

By order of the Commission. 

Issued: August 29, 2008. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. E8–20540 Filed 9–4–08; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of Consent Decree 

Under the Comprehensive 

Environmental Response, 

Compensation, and Liability Act of 

1980 

Notice is hereby given that on August 

21, 2008, a Complaint was filed and a 

proposed Consent Decree was lodged 

with the United States District Court for 

the District of New Jersey in United 

States of America v. Air Products and 

Chemicals, Inc., Civil Action No. 2:08- 

cv-04216. 

In this action the United States seeks 

reimbursement of response costs 

incurred by EPA for response actions at 

the Chemsol, Inc. Superfund Site 

(‘‘Site’’) in Piscataway Township, 

Middlesex County, New Jersey, and 

performance of studies and response 

work at the Site consistent with the 

National Contingency Plan, 40 CFR Part 

300, pursuant to Sections 106 and 107 

of the Comprehensive Environmental, 

Response, Compensation, and Liability 

Act, 42 U.S.C. 9606 and 9607 

(‘‘CERCLA’’). The Consent Decree 

provides that the new settlors will 

financially contribute to and perform 

work at the Site together with a group 

of potentially responsible parties that 

resolved their liability to the United 

States in 2000 in a Consent Decree. The 

value of this settlement is estimated at 

approximately $3.1 million, of which 

$380.170.83 will be paid to EPA for 

unreimbursed response costs, and 

$95,747.14 will be paid to the State of 

New Jersey for the State’s Natural 

Resource Damages caused by the release 

of hazardous substances at the Site. 

The Department of Justice will receive 

for a period of thirty (30) days from the 

date of this publication comments 

relating to the Consent Decree. 

Comments should be addressed to the 

Assistant Attorney General, 

Environment and Natural Resources 

Division, and either e-mailed to 

pubcomment-ees.enrd@usdoj.gov or 

mailed to P.O. Box 7611, U.S. 

Department of Justice, Washington, DC 

20044–7611, and should refer to United 

States v. Air Products and Chemicals, et 

al., D.J. Ref. 90–11–3–06104/3. 

The Consent Decree may be examined 

at the Office of the United States 

Attorney, Federal Building, 7th Floor, 

970 Broad Street, Newark, New Jersey, 

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