Federal Register / Vol. 75, No. 207 / Wednesday, October 27, 2010 / Notices 66127 

means, except to the extent permitted by 

section 201.8 of the Commission’s rules, 

as amended, 67 FR 68036 (November 8, 

2002). Even where electronic filing of a 

document is permitted, certain 

documents must also be filed in paper 

form, as specified in II (C) of the 

Commission’s Handbook on Electronic 

Filing Procedures, 67 FR 68168, 68173 

(November 8, 2002). 

In accordance with sections 201.16(c) 

and 207.3 of the rules, each document 

filed by a party to the investigations 

must be served on all other parties to 

the investigations (as identified by 

either the public or BPI service list), and 

a certificate of service must be timely 

filed. The Secretary will not accept a 

document for filing without a certificate 

of service. 

Authority: These investigations are being 

conducted under authority of title VII of the 

Tariff Act of 1930; this notice is published 

pursuant to section 207.12 of the 

Commission’s rules. 

By order of the Commission. 

Issued: October 21, 2010. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. 2010–27173 Filed 10–26–10; 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 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; 


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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. 

(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 

(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. 

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 


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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 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 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 nonsignatory 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 


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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 

DEPARTMENT OF JUSTICE 

[CPCLO Order No. 005–2010] 

Privacy Act of 1974; System of 

Records 

AGENCY: Federal Bureau of 

Investigation, Department of Justice. 

ACTION: Notice of a Modification of a 

System of Records. 

SUMMARY: Pursuant to the Privacy Act of 

1974 (5 U.S.C. 552a), the Federal Bureau 

of Investigation (FBI), Department of 

Justice, proposes to modify an existing 

system of records entitled ‘‘Data 

Integration and Visualization System,’’ 

JUSTICE/FBI–021, which describes the 

Data Integration and Visualization 

System (DIVS), to revise the System 

Location section to clarify locations 

where the records may be directly 

accessed and by whom the records may 

be directly accessed. A new sentence 

has been added at the end of the System 

Location section to reflect this 

information. This system notice was last 

published on August 31, 2010 (75 FR 

53342). 

DATES: In accordance with 5 U.S.C. 

552a(e)(4) and (11), the public is given 

a 30-day period in which to comment. 

Therefore, please submit any comments 

by November 26, 2010. 


srobinson on DSKHWCL6B1PROD with NOTICES