1664 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Notices 

Authority: The authority for institution of 

this investigation is contained in section 337 

of the Tariff Act of 1930, as amended, and 

in section 210.10 of the Commission’s Rules 

of Practice and Procedure, 19 CFR 210.10 

(2014). 

By order of the Commission. 

Issued: January 8, 2015. 

Lisa R. Barton, 

Secretary to the Commission. 

[FR Doc. 2015–00325 Filed 1–12–15; 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’’) 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 breach 

investigations completed during 

calendar year 2013. This summary 

addresses four proceedings under 

section 337 of the Tariff Act of 1930. 

There were no breach investigations in 

title VII proceedings or rules violation 

investigations completed in 2013. 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 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, section 337 of the Tariff Act 

of 1930, the North American Free Trade 

Agreement (NAFTA) Article 1904.13, 

and safeguard-related provisions such as 

sections 202 of the Trade Act of 1974, 

may enter into APOs that permit them, 

under strict conditions, to obtain access 

to BPI (title VII) and confidential 

business information (‘‘CBI’’) 

(safeguard-related provisions and 

section 337) of other parties or nonparties. See, e.g., 19 U.S.C. 1677f; 19 

CFR 207.7; 19 U.S.C. 1337(n); 19 CFR 

210.5, 210.34; 19 U.S.C. 2252(i); 19 CFR 

206.17; and 19 U.S.C. 1516a(g)(7)(A); 19 

CFR 207.100, et. seq. The discussion 

below describes APO breach 

investigations that the Commission has 

completed during calendar year 2013, 

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 (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); 74 FR 

54071 (October 21, 2009); 75 FR 54071 

(October 27, 2010), 76 FR 78945 

(December 20, 2011), 77 FR 76518 

(December 28, 2012), and 78 FR 79481 

(December 30, 2013). 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 

A. Antidumping and Countervailing 

Duty Investigations 

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; 

(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 


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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 

Continued 

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 safeguard investigations 

contain similar though not identical 

provisions. 

B. Section 337 Investigations 

The APOs in section 337 

investigations differ from those in title 

VII investigations as there is no set form 

and provisions may differ depending on 

the investigation and the presiding 

administrative law judge. However, in 

practice, the provisions are often quite 

similar. Any person seeking access to 

CBI during a section 337 investigation 

including outside counsel for parties to 

the investigation, secretarial and 

support personnel assisting such 

counsel, and technical experts and their 

staff who are employed for the purposes 

of the investigation is required to read 

the APO, agree to its terms by letter filed 

with the Secretary of the Commission 

indicating that he agrees to be bound by 

the terms of the Order, agree not to 

reveal CBI to anyone other than another 

person permitted access by the Order, 

and agree to utilize the CBI solely for 

the purposes of that investigation. 

In general, an APO in a section 337 

investigation will define what kind of 

information is CBI and direct how CBI 

is to be designated and protected. The 

APO will state what persons will have 

access to the CBI and which of those 

persons must sign onto the APO. The 

APO will provide instructions on how 

CBI is to be maintained and protected 

by labeling documents and filing 

transcripts under seal. It will provide 

protections for the suppliers of CBI by 

notifying them of a Freedom of 

Information Act request for the CBI and 

providing a procedure for the supplier 

to take action to prevent the release of 

the information. There are provisions 

for disputing the designation of CBI and 

a procedure for resolving such disputes. 

Under the APO, suppliers of CBI are 

given the opportunity to object to the 

release of the CBI to a proposed expert. 

The APO requires a person who 

discloses CBI, other than in a manner 

authorized by the APO, to provide all 

pertinent facts to the supplier of the CBI 

and to the administrative law judge and 

to make every effort to prevent further 

disclosure. The APO requires all parties 

to the APO to either return to the 

suppliers or destroy the originals and all 

copies of the CBI obtained during the 

investigation. 

The Commission’s regulations 

provide for certain sanctions to be 

imposed if the APO is violated by a 

person subject to its restrictions. The 

names of the persons being investigated 

for violating an APO are kept 

confidential unless the sanction 

imposed is a public letter of reprimand. 

19 CFR 210.34(c)(1). The possible 

sanctions are: 

1. An official reprimand by the 

Commission. 

2. Disqualification from or limitation 

of further participation in a pending 

investigation. 

3. Temporary or permanent 

disqualification from practicing in any 

capacity before the Commission 

pursuant to 19 CFR 201.15(a). 

4. Referral of the facts underlying the 

violation to the appropriate licensing 

authority in the jurisdiction in which 

the individual is licensed to practice. 

5. Making adverse inferences and 

rulings against a party involved in the 

violation of the APO or such other 

action that may be appropriate. 19 CFR 

210.34(c)(3). 

Commission employees are not 

signatories to the Commission’s APOs 

and do not obtain access to BPI 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. 

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 facts and obtain the 

possible breacher’s views on whether a 

breach has occurred.1 If, after reviewing 


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in 19 CFR 207.100—207.120. Those investigations 

are initially conducted by the Commission’s Office 

of Unfair Import Investigations. 

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. However, a 

warning letter is considered in a 

subsequent APO breach investigation. 

Sanctions for APO violations serve 

three basic interests: (a) Preserving the 

confidence of submitters of BPI/CBI that 

the Commission is a reliable protector of 

BPI/CBI; (b) disciplining breachers; and 

(c) deterring future violations. As the 

Conference Report to the Omnibus 

Trade and Competitiveness Act of 1988 

observed, ‘‘[T]he effective enforcement 

of limited disclosure under 

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/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. In section 337 investigations, 

technical experts and their staff who are 

employed for the purposes of the 

investigation are required to sign onto 

the APO and agree to comply with its 

provisions. 

The records of Commission 

investigations of alleged APO breaches 

in antidumping and countervailing duty 

cases, section 337 investigations, and 

safeguard investigations are not publicly 

available and are exempt from 

disclosure under the Freedom of 

Information Act, 5 U.S.C. 552. See 19 

U.S.C. 1677f(g), 19 U.S.C. 1333(h), 19 

CFR 210.34(c). 

The two types of breaches most 

frequently investigated by the 

Commission involve 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. 

Occasionally, the Commission 

conducts APOB investigations that 

involve members of a law firm or 

consultants working with a firm who 

were granted access to APO materials by 

the firm although they were not APO 

signatories. In many of these cases, the 

firm and the person using the BPI/CBI 

mistakenly believed an APO application 

had been filed for that person. The 

Commission 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/CBI. The Commission 

notes that section 201.15 may also be 

available to issue sanctions to attorneys 

or agents in different factual 

circumstances in which they did not 

technically breach the APO, but 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. 

Counsel participating in Commission 

investigations have reported to the 

Commission potential breaches 

involving the electronic transmission of 

public versions of documents. In these 

cases, the document transmitted appears 

to be a public document with BPI or CBI 

omitted from brackets. However, the 

confidential information is actually 

retrievable by manipulating codes in 

software. The Commission has found 

that the electronic transmission of a 

public document containing BPI or CBI 

in a recoverable form was a breach of 

the APO. 

Counsel have been cautioned to be 

certain that each authorized applicant 

files within 60 days of the completion 

of an import injury investigation or at 

the conclusion of judicial or binational 

review of the Commission’s 

determination a certificate 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. 

In addition, attorneys who are 

signatories to the APO representing 


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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 APO Breach Investigations 

Case 1: This case involved a draft 

complaint that inadvertently contained 

CBI from a previous Commission 

investigation. The draft complaint was 

generated by one law firm, transferred to 

a second firm, then transferred to a third 

firm, and then filed with the 

Commission as an actual complaint. 

One attorney at the first firm breached 

an APO when he transferred to other 

law firms a draft complaint which he 

believed contained only public 

information, but instead included 

attachments containing CBI from a 

previous Commission section 337 

investigation. Two attorneys at the firm 

to which the draft complaint had been 

first transferred also breached the APO. 

The lead attorney in this second law 

firm was responsible for the transfer of 

the draft complaint containing the CBI 

to a third law firm which was expected 

to use the document to draft a complaint 

in a new section 337 investigation. 

Upon learning that there might be CBI 

included in the draft complaint and its 

attachments, the lead attorney and 

another attorney in that firm assigned a 

non-signatory attorney to confirm 

whether documents were not redacted. 

The lead attorney at the third law firm 

to which the draft complaint was 

ultimately transferred and five other 

attorneys at that law firm were 

signatories to the complaint that was 

filed in the new section 337 

investigation which included the 

attachments containing CBI from the 

original section 337 investigation. 

The draft complaint was prepared by 

paralegals at the first law firm. They 

were expected to use only public 

information from the record of a 

previous Commission section 337 

investigation and from public 

information obtained from the USPTO. 

The paralegals mistakenly included 

documents from the previous 

investigation that contained CBI, 

although the pages were clearly marked 

as containing CBI. The attorney 

responsible for the draft complaint did 

not check to be sure all the information 

in the complaint was public. He 

supervised the preparation of two USB 

drives, on which the assembled 

documents were copied, to be given to 

attorneys in two other law firms for use 

in a public filing for a future section 337 

investigation. The Commission issued a 

warning letter to the attorney. In doing 

so, the Commission considered several 

mitigating circumstances, including the 

unintentional nature of the breach, that 

the attorney did not directly disclose the 

CBI to a non-signatory to the APO, that 

the attorney took immediate steps to 

investigate the situation that led to the 

inclusion of the CBI in the materials 

forwarded to the second firm, and that 

the attorney had not previously 

breached a Commission APO. The 

attorney received the warning letter for 

his breach because it was ultimately his 

responsibility to ensure that the draft 

complaint contained no CBI subject to 

the APO in the original section 337 

investigation. 

The Commission issued private letters 

of reprimand to two attorneys in the 

second law firm. The lead attorney was 

held responsible for the breach 

involving the transfer of the CBI to the 

non-signatories at the third law firm. 

The Commission found that the attorney 

was ultimately responsible for ensuring 

that the materials to be transferred to 

non-signatories for use in a matter 

unrelated to the original Commission 

investigation did not contain materials 

that were subject to the APO. The 

Commission considered certain 

mitigating circumstances; namely, the 

attorney was not responsible for the 

initial collection of the documents and 

was merely an intermediary in the chain 

of responsibility for passing the 

documents from one law firm to 

another, the firm took immediate steps 

to investigate its role in the breach, 

including locating and securing copies 

of the CBI at issue, and the attorney had 

not previously breached a Commission 

APO. 

The lead attorney and a second 

attorney in the law firm were both 

found responsible for involving a nonsignatory attorney in the investigation of 

the original APO breach. In reaching its 

decision to issue private letters of 

reprimand to both attorneys, the 

Commission considered the presence of 

aggravating circumstances. First, due to 

their actions, a non-signatory had access 

to and could have read the CBI. In 

addition, the breach was not inadvertent 

or unintentional and the Commission 

was not informed of this breach until 

the lead attorney responded to the 

Commission’s request for information 

regarding the original breach. Finally, 

the Commission found that by involving 

the non-signatory in the investigation of 

the APO breach, the attorneys were 

interpreting the APO without seeking 

Commission guidance. 

The Commission considered whether 

good cause existed, pursuant to 

Commission rule 201.15(a), to sanction 

the non-signatory attorney in the second 

firm who was assigned to investigate the 

initial APO breach. The Commission 

did not sanction the attorney but issued 

a warning letter. It considered the 

mitigating circumstances that the 

attorney exercised some caution by not 

actually reading the CBI documents and 

that he had not previously breached a 

Commission APO. The Commission 

noted that the attorney was aware that 

he was a non-signatory to the APO and 

noted that his actions directly 

contributed to the disclosure of CBI by 

agreeing to review the CBI documents as 

part of the investigation into the APO 

breach. 

The Commission considered whether 

to sanction six attorneys at the third law 

firm because they were signatories to 

the public complaint which was filed in 

a new section 337 investigation, and 

which included the attachments 

containing CBI which were subject to an 

APO in an earlier investigation. Since 

none of the attorneys in the third firm 

were signatories to the APO in the 

original section 337 investigation the 

Commission did not find that they 

breached the APO but, instead, 

considered whether there was good 

cause to sanction them under 

Commission rule 201.15(a). The 

Commission determined that there was 

good cause to sanction the lead attorney 

and, thus, issued a private letter of 

reprimand to the lead attorney. The 

Commission noted that the attorney’s 

actions directly led to the disclosure of 

CBI, which was clearly marked as such, 

by including the CBI as public exhibits 

to a complaint in a Commission 

investigation unrelated to the original 

section 337 investigation. It was 

ultimately the lead attorney’s 

responsibility to ensure that the 

materials that were used in the filing of 

an unrelated complaint contained only 

materials that were not subject to the 

APO in the original investigation. The 

Commission noted certain mitigating 

circumstances; namely, the attorney was 

not responsible for the initial collection 

of the documents in question but was 

merely in the chain of receiving parties 

of the documents being transmitted 

from one law firm to another; the breach 

was unintentional; his law firm 

promptly investigated the circumstances 

of the breach and took immediate 

corrective measures to ensure that 

access to the CBI was restricted; he had 

not previously breached a Commission 

APO; and his firm assured the 


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Commission that it will take extra 

caution to prevent a similar occurrence 

in the future and will not rely on the 

representations of co-counsel regarding 

the confidential nature of documents. 

The Commission also issued warning 

letters to the remaining five attorneys at 

the third law firm who were not 

signatories to the original APO and who 

had signed the complaint in the new 

unrelated investigation. Two of the five 

attorneys participated in filing the 

complaint. The Commission stated that 

the actions of the two attorneys directly 

led to the disclosure of CBI, which was 

clearly marked as such, by including the 

CBI as public exhibits to a complaint in 

a Commission investigation unrelated to 

the original section 337 investigation. In 

issuing warning letters, the Commission 

noted the same mitigating factors 

mentioned above with regard to the lead 

attorney in the third firm who received 

a private letter of reprimand. 

Case 2: The Commission determined 

that two attorneys breached the APO by 

filing a confidential version of an initial 

determination (‘‘ID’’) containing CBI, as 

part of the public appendix to a brief in 

district court litigation. The filing was 

made through the district court’s 

electronic-case-filing (‘‘ECF’’) system. 

The confidential version of the ID was 

filed by a paralegal at the law firm 

under the supervision of the two 

attorneys, both of whom had subscribed 

to the APO. The law firm later 

discovered the disclosure and notified 

the opposing party. The CBI was 

publicly available for six weeks. The 

law firm requested the district court to 

restrict access to the electronic filing 

and the district court complied. The 

district court notified the law firm that 

the court did not track access to ECF 

documents and could not determine 

who, if anyone had accessed the ID 

electronically. The law firm conducted 

an inquiry into whether any of the 

employees of the party it represented in 

the district court litigation had accessed 

the ID. The opposing party also 

conducted an inquiry into whether any 

of its employees had accessed the ID. 

From these inquires, the law firm is not 

aware of any unauthorized access to the 

CBI. 

The Commission took into 

consideration the following mitigating 

factors: The breach was inadvertent; 

neither the attorneys at issue nor the 

law firm as a whole have breached a 

Commission APO in the past; the law 

firm discovered its own breach and took 

prompt steps to try to cure the breach; 

and the law firm implemented actions 

to improve internal procedures to make 

this type of breach less likely in the 

future. The Commission noted, 

however, that the law firm was not able 

to demonstrate whether anyone 

improperly accessed the CBI while it 

was publicly available so the 

Commission presumes public access to 

the confidential documents. Thus, in 

accordance with past Commission 

practice, the Commission issued private 

letters of reprimand to the two 

attorneys. 

Case 3: The Commission determined 

that an attorney breached an APO by 

filing public versions of certain 

documents, which contained the CBI of 

the opposing party. 

Counsel for the opposing party 

contacted the Secretary to the 

Commission to notify the Secretary that 

public versions of certain documents, 

specifically the public versions of a 

response to a petition for review and 

summary of the response, filed by the 

attorney in question contained CBI. The 

Secretary’s office promptly removed the 

CBI documents from the public record. 

The attorney subsequently re-filed the 

public version documents without the 

CBI. An audit trail for the CBI 

documents showed that the documents 

were accessed by a non-party to the 

investigation. 

The Commission issued a private 

letter of reprimand to the attorney for 

the APO breach. The Commission noted 

as mitigating factors that once the 

attorney was notified that the public 

version of the documents contained CBI 

the attorney moved quickly to cure the 

disclosure, the disclosure of the CBI was 

inadvertent, the attorney has not been 

involved in any alleged APO breach in 

the past two years, and the attorney had 

the ALJ’s instruction not to over-redact 

in mind while preparing the public 

versions of the brief. However, the 

Commission points out that the 

aggravating factors were that the breach 

was discovered by opposing counsel 

and not the alleged breaching attorney, 

unauthorized persons accessed the CBI 

at issue, and the attorney acted 

unilaterally in deciding that certain 

information did not constitute CBI 

without seeking guidance from the 

Commission. 

Case 4: The Commission determined 

that the lead attorney and the lead 

attorney’s law firm did not breach the 

APO when documents containing CBI 

were stolen from the locked car trunk of 

a paralegal employed by the law firm. 

The law firm had internal practices 

and procedures regarding the protection 

of CBI governed by an APO including 

policies regarding the maintenance and 

transport of CBI. In some cases, the law 

firm did let its personnel perform work 

at home involving CBI as long as they 

used and kept the CBI in a locked 

facility, which could not be accessed by 

others. The paralegal had such an 

arrangement in his home. 

The provisions of the APO did not 

specifically prohibit the transport of 

documents containing CBI to a home 

office or require personal custody and 

maintenance of the CBI in a locked 

facility of the home office after such 

transport. The lead attorney promptly 

notified the proper authorities after 

learning of the theft. 

The Commission issued a letter to the 

lead attorney notifying the attorney that 

the Commission does not consider the 

law firm or lead attorney to have 

breached the APO, but the letter does 

recommend that the law firm review its 

procedures regarding the protection of 

CBI, and the law firm’s enforcement of 

such procedures. 

By order of the Commission. 

Issued: January 7, 2015. 

Lisa R. Barton, 

Secretary to the Commission. 

[FR Doc. 2015–00299 Filed 1–12–15; 8:45 am] 

BILLING CODE 7020–02–P 

DEPARTMENT OF JUSTICE 

[OMB Number 1103–0102] 

Agency Information Collection 

Activities; Proposed eCollection 

eComments Requested; Extension 

With Change, of a Previously 

Approved Collection COPS Office 

Progress Report 

AGENCY: Community Oriented Policing 

Services (COPS) Office, Department of 

Justice. 

ACTION: 30-Day notice. 

SUMMARY: The Department of Justice 

(DOJ), Community Oriented Policing 

Services (COPS) Office, will be 

submitting the following information 

collection request to the Office of 

Management and Budget (OMB) for 

review and approval in accordance with 

the Paperwork Reduction Act of 1995. 

This proposed information collection 

was previously published in the Federal 

Register at 79 FR 66405, November 7, 

2014, allowing for a 60 day comment 

period. 

DATES: Comments are encouraged and 

will be accepted for an additional days 

until February 12, 2015. 

FOR FURTHER INFORMATION CONTACT: If 

you have additional comments 

especially on the estimated public 

burden or associated response time, 

suggestions, or need a copy of the 

proposed information collection 

instrument with instructions or 


asabaliauskas on DSK5VPTVN1PROD with NOTICES