Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Notices 54071 

(Dec. 29, 2008) (NSK II). Accordingly, 

on February 6, 2009, the Commission 

published a notice that it was resuming 

its remand proceeding. The Commission 

provided parties with an opportunity to 

file comments on the Court’s remand 

instructions and the evidence obtained 

on remand, and directed that they be 

filed by March 23, 2009. 74 FR 6174. 

The Commission also prepared a 

supplemental staff report regarding nonsubject producer questionnaire 

information gathered in the remand 

proceeding. On March 23, 2009, 

comments on the remand were filed by 

petitioner The Timken Company, and 

the Japanese and United Kingdom 

respondents JTEKT Corp., Koyo Corp. of 

U.S.A., NSK Corporation, NSK Ltd., and 

NSK Europe Ltd. On May 4, 2009, the 

Commission issued its remand 

determinations in Ball Bearings from 

Japan and the United Kingdom, 731– 

TA–394A & 399A, (Second Review) 

(Remand), USITC Pub. 4082 (May 2009). 

By unanimous vote, the Commission 

again determined that revocation of the 

antidumping duty orders on ball 

bearings from France, Germany, Italy, 

Japan, and the United Kingdom would 

likely result in continuation or 

recurrence of material injury within a 

reasonably foreseeable time. 

On August 31, 2009, the CIT issued an 

opinion in NSK Corp. et al. v. United 

States, Slip Op. 09–91 (NSK III), again 

remanding the Commission’s affirmative 

determinations in Certain Bearings and 

Parts Thereof from Japan and the 

United Kingdom, Inv. Nos. 731–TA– 

394–A & 399–A (Second Review) 

(Remand), USITC Pub. 4082 (May 2009). 

In NSK III, the Court has remanded the 

same three issues which it previously 

remanded for further explanation in 

NSK I and NSK II. First, the Court 

remanded the Commission’s analysis of 

non-subject imports, with instructions 

to ‘‘to determine whether, in light of the 

significant presence of non-subject 

imports, the subject imports are more 

than a mere minimal or tangential factor 

in the material injury to the domestic 

industry that is likely to continue or 

recur in the absence of the antidumping 

duty order.’’ NSK III at 29. Second, the 

Court directed the Commission to 

‘‘provide a more careful and reasoned 

explanation of (1) the large scale 

restructuring within the ball bearing 

industry and (2) the significant rise in 

non-subject imports in the U.S. market’’ 

as part of its cumulation analysis of the 

subject imports from the United 

Kingdom. Id. Third, the Court directed 

the Commission to ‘‘revisit its 

determination on the vulnerability of 

the domestic market and the likely 

impact of subject imports on the 

domestic market.’’ Id. at 30. 

The Court has ordered the 

Commission to file its remand 

determination with the Court by January 

5, 2010. 

Participation in the proceeding.— 

Only those persons who were interested 

parties to the reviews (i.e., persons 

listed on the Commission Secretary’s 

service list) and parties to the appeal 

may participate in the remand 

proceeding. Such persons need not 

make any additional filings with the 

Commission to participate in the 

remand proceeding, unless they are 

adding new individuals to the list of 

persons entitled to receive business 

proprietary information under 

administrative protective order. 

Business proprietary information 

(‘‘BPI’’) referred to during the remand 

proceeding will be governed, as 

appropriate, by the administrative 

protective order issued in the reviews. 

Written submissions.—The 

Commission is not re-opening the 

record in this remand proceeding. The 

Commission will permit the parties to 

file comments pertaining to the specific 

issues that are the subject of the Court’s 

remand instructions and, in this regard, 

may comment on the new information 

obtained on remand. Comments should 

be limited to no more than fifteen (15) 

double-spaced and single-sided pages of 

textual material. No appendices or other 

attachments are allowed. The parties 

may not themselves submit any new 

factual information in their comments 

and may not address any issue other 

than those that are the subject of the 

Court’s remand instructions. Any such 

comments must be filed with the 

Commission no later than October 23, 

2009. 

All written submissions must conform 

with the provisions of section 201.8 of 

the Commission’s rules; any 

submissions that contain BPI must also 

conform with the requirements of 

sections 201.6, 207.3, and 207.7 of the 

Commission’s rules. The Commission’s 

rules do not authorize filing of 

submissions with the Secretary by 

facsimile or electronic means, except to 

the extent permitted by section 201.8 of 

the Commission’s rules, as amended, 67 

FR 68036 (Nov. 8, 2002). 

In accordance with sections 201.16(c) 

and 207.3 of the Commission’s rules, 

each document filed by a party to the 

investigation must be served on all other 

parties to the investigation (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. 

Parties are also advised to consult 

with the Commission’s Rules of Practice 

and Procedure, part 201, subparts A 

through E (19 CFR part 201), and part 

207, subpart A (19 CFR part 207) for 

provisions of general applicability 

concerning written submissions to the 

Commission. 

Issued: October 14, 2009. 

By order of the Commission. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. E9–25244 Filed 10–20–09; 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 2008 of 

breaches in proceedings under Title VII, 

section 337 of the Tariff Act of 1930 and 

section 421 of the Trade Act of 1974. In 

addition, there is a summary of rules 

violation investigations completed in 

2008. 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 


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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 

and rules violation investigations that 

the Commission has completed during 

calendar year 2008, 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 (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); 72 FR 50119 (August 30, 2007); 

and 73 FR 51843 (Sept. 5, 2008). 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 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 

(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 


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11Procedures 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. 

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.11 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 

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 

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 

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-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 


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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 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 determined 

that an attorney breached an APO when 

he served pleadings containing CBI 

upon Department of Justice (‘‘DOJ’’) 

attorneys during an appeal in the Court 

of International Trade of actions taken 

by U.S. Customs and Border Protection 

(‘‘Customs’’) to enforce the 

Commission’s exclusion order issued in 

a section 337 investigation. The attorney 

erroneously assumed that because 

Customs officials who were directly 

involved in administering a section 337 

exclusion order were permitted access 

to CBI by statute, he could provide CBI 

to the Customs officials’ DOJ attorneys 

and the court officials in this appeal of 

Customs’ actions. When the attorney 

was informed by the opposing counsel 

that his pleadings violated the APO, he 

informed the Commission of the 

possible violation. The DOJ attorneys 

were not able to return the documents 

containing CBI, because they were lost 

or destroyed, but the CIT successfully 

returned the pleadings containing CBI. 

The mitigating factor noted by the 

Commission was that the attorney had 

not committed an APO breach in the 

past two years. The Commission also 

noted as a partially mitigating factor the 

fact that the attorney promptly notified 

an assistant general counsel at the 

Commission of the breach, although he 

failed to notify the Secretary of the 

breach until one week after it occurred. 

The aggravating factors that the 

Commission took into account were the 

fact that the attorney failed to seek 

guidance from the Commission as to 

whether his actions would constitute a 

breach of the APO, the fact that sixteen 

months passed between the time when 

the potential breach was identified and 

the time when the attorney took steps to 

retrieve the documents containing CBI, 

and the fact that it took the attorney 

almost four years to cure the breach, 

which made it likely that unauthorized 

persons saw the CBI. The Commission 

issued a private letter of reprimand to 

the attorney. 

Case 2: The Commission determined 

that a lead attorney and a computer 

trade analyst violated an APO, by 

causing a computer disk containing CBI 

from a Commission investigation to be 

transmitted to a coordinator at a training 

seminar and seminar attendees. The 

information was put on the disk by the 

trade analyst at the direction of the lead 

attorney and it was transmitted to the 

coordinator of the seminar by a 

secretary at the attorney’s firm. The 

secretary was not found to have 

breached the APO. The breach was 

discovered by an attorney attending the 

seminar, a non-signatory of the APO. 

The lead attorney made immediate 

efforts to cure the breach and retrieve 

the CBI but not all the documents 

containing the CBI were retrieved. The 

Commission considered the lead 

attorney and trade analyst’s lack of prior 

breaches, the fact that the breach was 

unintentional, and the prompt and 

strenuous efforts made by the firm to 

cure the breach as mitigating factors. 

The Commission declined to view the 

absence of claims of injury by the 

parties whose CBI was disclosed as a 

mitigating factor, stating that it 

considers the viewing of APO material 

by unauthorized persons to be an 

aggravating factor, regardless of whether 

evidence proves that a firm was injured 

by such a breach of the APO. The 

Commission also rejected the lead 

attorney’s argument that his reliance on 

the trade analyst was reasonable 

because the trade analyst had significant 

experience. The Commission noted that 

the trade analyst lacked significant 

experience in Commission practice, 

having come from another type of work 

approximately one year before the 

breach. 

The Commission viewed as 

aggravating the fact that the CBI was 

viewed by at least one unauthorized 

person and the breach was discovered 

by someone other than the lead attorney 

or a member of his firm. The 

Commission sent private letters of 

reprimand to the trade analyst and the 

lead attorney. 

Case 3: The Commission determined 

that an economic analyst breached an 

APO when she lost a package containing 

BPI. The analyst signed for the package 

when it arrived at her firm, although it 

was not addressed to her. When the 

attorney to whom the package was 

intended inquired about its location, the 

economic analyst was unable to find it. 

She thought it may have been destroyed 

with other materials containing BPI 

which were located in her office. The 


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package was never found and the law 

firm called the Secretary to report the 

breach nine days after the analyst 

realized that she had signed for the 

package but could not locate it. 

The Commission viewed as mitigating 

factors the fact that the breach was 

unintentional and that the analyst had 

not committed a breach in the past two 

years. The aggravating factors in this 

case were that the package was never 

found, and the fact that the firm failed 

to promptly notify the Commission 

Secretary of the breach as required by 

Commission rule 207.7(b)(9). The 

Commission sent a private letter of 

reprimand to the analyst. 

The Commission also sent a letter to 

two attorneys and a legal secretary from 

the firm informing them that the 

Commission determined that they were 

not responsible for the breach of the 

APO. However, the letter also stated that 

the Commission did not believe that the 

firm had taken adequate measures to 

prevent similar breaches and it 

requested that they review their firm’s 

procedures to ensure that a similar loss 

of BPI by firm personnel would not 

reoccur. 

Case 4: The Commission found that 

two attorneys and a paralegal breached 

an APO when the public version of the 

firm’s final comments, which contained 

BPI, was filed with the Commission. 

The BPI was contained on three pages 

that the paralegal inadvertently attached 

to the comments. The attorney primarily 

responsible for preparing the public 

version of the final comments for filing 

did not notice the addition of the BPI 

when he reviewed the submission and 

he gave it to the lead attorney for 

signing. The lead attorney signed on a 

page containing BPI. The document was 

then filed with the Commission. 

The Commission determined to hold 

the lead attorney responsible for the 

breach because he was aware or should 

have been aware of the other attorney’s 

previous breach of the APO. 

Consequently, the lead attorney should 

have engaged in at least a cursory 

review of the page he was signing. That 

page contained a conspicuous header 

stating that it contained BPI and there 

was unredacted BPI just two lines above 

the signature block. The Commission’s 

decision to send warning letters to the 

paralegal and the lead attorney took into 

account the mitigating factors that the 

breach was unintentional, no BPI was 

read by any person not subject to the 

APO, the breach was remedied 

expeditiously by the firm, and neither 

the paralegal nor the lead attorney had 

committed APO breaches in the past 

two years. 

In evaluating the filing attorney’s 

conduct, the Commission viewed as an 

aggravating factor the fact that this was 

his second APO breach in 13 months 

and that he had been issued a warning 

letter for his prior breach. The 

Commission noted that the breach was 

caused by the attorney’s carelessness in 

inadequately reviewing the comments 

before obtaining the lead attorney’s 

signature and filing them. The 

Commission viewed as mitigating 

factors the facts that the breach was 

unintentional, the attorney’s law firm 

acted expeditiously to remedy the 

breach, and the BPI was not read by any 

individuals who were not signatories to 

the APO. The Commission decided to 

send a private letter of reprimand to the 

attorney. 

Case 5: The Commission found that 

an attorney had breached an APO when, 

after the completion of a section 337 

investigation, he provided documents 

containing CBI to a non-signatory 

associate attorney at a law firm that was 

representing his client in an unrelated 

law suit. The associate attorney sought 

documents twice from the breaching 

attorney. For the first request the 

associate attorney provided a letter from 

an attorney for the party from which the 

CBI was originally obtained, and which 

was a respondent in the section 337 

investigation, permitting the release of 

the information to the associate 

attorney. A second request for the 

release of information was made, but 

that time the associate attorney did not 

provide a letter permitting the release. 

He merely made a verbal assertion that 

he had approval to receive the 

information just as he had for the first 

request. The breaching attorney 

accepted his statement and provided the 

second set of information containing 

CBI originally obtained from the same 

section 337 respondent. 

The breaching attorney learned from 

an attorney for the section 337 

respondent that the associate attorney 

was not authorized to receive the 

second set of information. The 

breaching attorney contacted a partner 

at the associate’s law firm about the 

matter and learned that the materials 

were destroyed and had never been 

copied, they had not been distributed to 

counsel or parties in the unrelated 

litigation, and no one at the firm 

including the associate attorney had 

substantively reviewed the materials 

prior to their destruction. 

The Commission determined to issue 

a warning letter to the breaching 

attorney. It viewed as an aggravating 

factor that an unauthorized person 

briefly viewed the CBI, although no 

substantive review occurred. It also 

found several mitigating factors. The 

breach was unintentional and was based 

on an inaccurate representation by the 

associate attorney that he had the 

authority to receive the information 

containing CBI; the attorney 

expeditiously sought to remedy the 

breach and to notify the Commission of 

the breach, after being informed by 

respondent’s counsel; and this was the 

only breach in which the attorney had 

been involved in the two-year period 

generally examined by the Commission 

for the purpose of determining 

sanctions. 

The Commission also found that the 

attorney had not committed a second 

breach by retaining the information 

obtained under the APO after the 

Commission investigation had ended. 

The attorney and the lead counsel for 

respondents had agreed to retain the 

documents for purposes of a separate 

litigation. The attorney destroyed the 

documents containing CBI once the 

litigation terminated. 

Case 6: The Commission found that 

an attorney had breached an APO in a 

section 337 investigation when he 

transmitted an administrative law judgeissued order containing CBI to an 

unauthorized person. The breach was 

discovered by a non-signatory to the 

APO, counsel in a different section 337 

investigation, who alerted another nonsignatory counsel from whom he had 

obtained a copy of the order. That 

attorney then notified the breaching 

attorney. 

In deciding to sanction the attorney 

by issuing a private letter of reprimand, 

the Commission considered the 

mitigating circumstances that the breach 

was unintentional, that the attorney 

acted quickly to cure the breach, and 

that the attorney had not committed a 

breach in the past two years, the period 

generally examined by the Commission 

for the purpose of determining 

sanctions. The Commission also 

considered the aggravating 

circumstances that the CBI was viewed 

by at least one unauthorized person and 

that the breach was not discovered by 

the attorney or his firm. 

The Commission denied the 

attorney’s request that it consider an 

alleged lack of harm caused by the 

unauthorized disclosure of the CBI to be 

a mitigating circumstance. The 

Commission informed the breaching 

attorney that it has an established 

practice and policy of providing strong 

protection to CBI. Consistent with this, 

the Commission considers the viewing 

of APO material by unauthorized 

persons to be an aggravating factor, 

regardless of whether evidence proves 


jlentini on DSKJ8SOYB1PROD with NOTICES
54076 Federal Register / Vol. 74, No. 202 / Wednesday, October 21, 2009 / Notices 

that a firm was injured by such a breach 

of the APO. 

Case 7: The Commission found that 

an attorney breached an APO by failing 

to redact from the public version of his 

firm’s final comments the name of a 

subscription service and information 

obtained from the subscription service 

under the Commission’s APO. The 

Commission has consistently treated 

this type of information as BPI and the 

information had clearly been marked as 

BPI. A paralegal and a legal secretary 

who were involved in the matter were 

found not liable for the breach because 

they acted under the direction of the 

attorney. 

The Commission viewed as mitigating 

factors that the attorney had not been 

found liable for a breach within the 

previous two years, the time period the 

Commission usually considers for the 

purpose of sanctions, no non-signatory 

read the BPI, and prompt action was 

taken to remedy the breach once the 

attorney was notified of the breach. The 

Commission also considered two 

aggravating circumstances. First, the 

Commission staff, not the attorney, 

discovered the breach. Second, the 

breach was not inadvertent, but rather, 

the attorney substituted his own 

judgment for the Commission’s in 

treating the BPI in question as public 

information despite clear markings to 

the contrary. The Commission issued a 

private letter of reprimand to the 

breaching attorney. 

Rules Violation Investigations 

Case 1: The Commission found that 

two attorneys had violated Commission 

rule 207.3(b), 19 CFR 207.3(b), in a fiveyear review, when they served a brief, 

which was public because no BPI was 

used, by first class mail instead of by 

hand or overnight mail as required by 

the rules. The certificate of service, 

which stated that the brief would be 

sent by first class mail, was signed by 

the lead attorney after he had been 

reassured by the second attorney that, in 

the past, the firm had served public 

documents in Commission 

investigations by first class mail. The 

use of first class service resulted in a 

one day delay in receipt of the 

document. 

The Commission decided to issue a 

warning letter to the lead attorney who 

had signed the certificate of service, in 

view of the fact that he had no 

violations in the past two years, the 

violation was unintentional, and the 

firm took measures to make sure that 

this kind of violation would not occur 

again. 

The Commission issued to the second 

attorney a private letter of reprimand 

with two restrictions on his practice 

before the Commission. For a period of 

18 months he was not permitted to serve 

as the final decisionmaker in any matter 

relating to proceedings before the 

Commission and all Commission 

submissions prepared by the attorney 

must be reviewed by another attorney 

before filing with the Commission. In 

determining to sanction the attorney in 

this manner, the Commission 

considered the mitigating circumstances 

that the breach was unintentional and 

the fact that other parties were not 

unduly prejudiced as a result of the 

improper service. The Commission also 

considered the aggravating circumstance 

that he had received two previous 

sanctions, the most recent of which 

included a restriction on his practice, 

for breaches of the APO in other 

Commission investigations within two 

years of the violation of the service rule. 

The Commission did take into account 

that the first of the underlying APO 

breaches had occurred more than four 

years prior to the issuance of the 

sanction in this rules violation 

proceeding. 

There was one rules violation 

investigation in which no violation was 

found: 

Case 1: The Commission determined 

that sanctions were unwarranted but 

cautioned three attorneys to ensure that 

their guidance to employees and clients 

in the future respects the Commission’s 

need for accurate questionnaire 

responses to maintain the integrity of 

Commission investigations. A rules 

violation investigation had been 

conducted pursuant to Commission rule 

201.15(a), 19 CFR 201.15(a), when 

comments on their client’s completed 

questionnaire made it appear that the 

three attorneys had advised their clients 

to answer a question in a potentially 

misleading manner. In response to the 

letter of inquiry, the attorneys explained 

that the comments were inadvertently 

left on the questionnaire and were never 

transmitted to the client. They were, 

instead, intended for staff at the law 

firm to encourage them to seek more 

accurate information from the client. 

The firm’s staff to whom the comments 

were sent recognized them as 

encouragement to obtain additional 

accurate information from the client 

and, in response to the comments, 

initiated follow-up contacts with the 

client to obtain additional, accurate 

information. This was confirmed by 

e-mail communications between the 

attorneys and the staff demonstrating a 

recognition of the need for accurate 

reporting. 

Issued: October 15, 2009. 

By order of the Commission. 

Marilyn R. Abbott, 

Secretary to the Commission. 

[FR Doc. E9–25243 Filed 10–20–09; 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 

Consistent with Section 122 of the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act of 1980, as amended (‘‘CERCLA’’), 

42 U.S.C. 9622(d), and 28 CFR 50.7, 

notice is hereby given that on October 

9, 2009, the United States lodged a 

Consent Decree with the City of South 

Lake Tahoe, California (‘‘the City’’) in 

United States of America v. El Dorado 

County, California, et al., Civil No. S– 

01–1520 MCE GGH (E.D. Cal.), with 

respect to the Meyers Landfill Site, 

located in Meyers, El Dorado County, 

California (the ‘‘Site’’). 

On August 3, 2001, Plaintiff United 

States of America (‘‘United States’’), on 

behalf of the United States Department 

of Agriculture, Forest Service (‘‘Forest 

Service’’), filed a complaint in this 

matter pursuant to Section 107 of the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act (‘‘CERCLA’’), 42 U.S.C. 9607, 

against Defendants, El Dorado County, 

California (the ‘‘County’’) and the City. 

The complaint filed by the United States 

seeks recovery of environmental 

response costs incurred by the Forest 

Service related to the release or 

threatened release and/or disposal of 

hazardous substances at or from the 

Meyers Landfill Site, a former 

municipal waste disposal facility 

located on National Forest Service 

System lands administered by the Lake 

Tahoe Basin Management Unit of the 

Forest Service, with accrued interest, 

and a declaration of the County’s and 

the City’s liability for future response 

costs incurred by the United States 

related to the Site. The City filed 

counterclaims against the United States 

pursuant to CERCLA. The proposed 

Consent Decree resolves the United 

States’ CERCLA claims against the City 

and the City’s CERCLA claims against 

the United States. 

Under the proposed Consent Decree 

the City will pay $1.6 million, a portion 

of which will be deposited into a Forest 

Service Special account to fund future 

response actions at the Site and a 

portion of which will go to the Forest 

Service to fund response actions related 


jlentini on DSKJ8SOYB1PROD with NOTICES