82 FR 29322 - Summary of Commission Practice Relating to Administrative Protective Orders
INTERNATIONAL TRADE COMMISSION Federal Register Volume 82, Issue 123 (June 28, 2017)
Federal Register Volume 82, Issue 123 (June 28, 2017)
| Page Range | 29322-29327 | |
| FR Document | 2017-13486 |
[Federal Register Volume 82, Number 123 (Wednesday, June 28, 2017)] [Notices] [Pages 29322-29327] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-13486] ======================================================================= ----------------------------------------------------------------------- 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 published in the Federal Register reports 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 [[Page 29323]] rule''). This notice provides a summary of breach investigations (APOB investigations) completed during calendar year 2015. This summary addresses one APOB investigation related to a proceeding under title VII of the Tariff Act of 1930 and four APOB investigations related to proceedings under section 337 of the Tariff Act of 1930, two of which were related to the same proceedings and were combined. The Commission investigated rules violations as part of one of the APOB investigations. 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: Ron Traud, 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 section 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 non-parties. 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; 19 U.S.C. 1516a(g)(7)(A); and 19 CFR 207.100, et. seq. The discussion below describes APO breach investigations that the Commission has completed during calendar year 2015, including a description of actions taken in response to these breaches. Since 1991, the Commission has regularly published a summary of its actions in response to violations of Commission APOs and rule violations. 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), 78 FR 79481 (December 30, 2013), 80 FR 1664 (January 13, 2015) and 81 FR 17200 (March 28, 2016). 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 so-called 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 [[Page 29324]] 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 form for antidumping and countervailing duty investigations also provides for the return or destruction of the BPI obtained under the APO on the order of the Secretary, at the conclusion of the investigation, or at the completion of Judicial Review. The BPI disclosed to an authorized applicant under an APO during the preliminary phase of the investigation generally may remain in the applicant's possession during the final phase of the investigation. 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 or she 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 or CBI 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 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. --------------------------------------------------------------------------- \1\ Procedures 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. --------------------------------------------------------------------------- Sanctions for APO violations serve three basic interests: (a) Preserving the [[Page 29325]] 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 non-signatory, 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 non-signatory 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. Attorneys who are signatories to the APO representing clients in a section 337 investigation should inform the administrative law judge and the Commission's secretary if there are any changes to the information that was provided in the application for access to the CBI. This is similar to the requirement to update an applicant's information in title VII investigations. 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 APO Breach Investigations Case 1. A lead attorney and and the attorney' partner, both subject to the [[Page 29326]] APO, directed their executive assistant, also subject to the APO, to electronically file the public version of their clients' post- conference brief in a Title VII investigation. Although BPI had been redacted from the brief, the BPI could be restored in the electronic version of the brief. The brief was filed with the Commission and was placed on the Commission's Electronic Document Information System (``EDIS'') as a public document. The lead attorney then emailed electronic copies of the brief to his clients and a trade publication, which posted a downloadable copy of the brief on its Web site. None of these recipients were authorized to access the BPI. Five days after the brief was filed with the Commission, an attorney in the law firm, who was subject to the APO, discovered the breach and brought it to the attention of another attorney who was also subject to the APO. That attorney immediately telephoned the Commission and the trade publication to ask that the brief be removed from public view. The executive assistant then refiled a corrected version of the brief with the Commission and emailed the corrected version to the trade publication. At the same time, the lead attorney emailed each of his clients asking them to delete his previous email, and subsequently asked them to execute a certification that all copies of the brief had been destroyed and that no BPI had been viewed. Less than a week later, the lead attorney filed a letter with the Commission detailing the circumstances of the possible APO breach and the remedial steps taken. The Commission determined to sanction the lead attorney, the partner, and the executive assistant, by issuing private letters of reprimand. The Commission considered the mitigating factors that the breach was unintentional, no employee of the law firm in question has been found to have breached an APO in the past two years, the law firm took immediate corrective measures upon learning of the potential breach, and immediately reported the potential breach to the Commission. Additionally, the law firm has adopted new APO procedures intended to prevent the recurrence of a similar breach in the future. The Commission also considered the aggravating factors that BPI may have been viewed by unauthorized persons, as the document containing retrievable BPI was available to unauthorized persons for five days on EDIS and for up to two days on the trade publication's Web site, and was emailed or forwarded to 37 clients and witnesses, none of whom were on the APO. Case 2. The Commission determined that two attorneys breached an APO in an earlier section 337 investigation when they attached two documents containing CBI, but labelled public, to the complaint in a new section 337 investigation. In addition, the same materials were sent to the Patent and Trademark Office (PTO), along with additional CBI produced by two other respondents in the earlier investigation, as part of the prosecution history in the reexamination of a patent at issue in both the earlier and current section 337 investigations. These materials were made available to and were accessed by persons not subject to the APO in the earlier investigation. Access by non- signatories of the APO was confirmed by the audit trail for EDIS. In addition, the CBI was available on the PTO's public record for a short period of time. The Commission determined to sanction the two attorneys who breached the APO by issuing private letters of reprimand. The Commission considered the mitigating factors that the breach was unintentional, the two attorneys had not breached an APO within the last two years, the breach was properly reported to the Commission, and detailed protocols for handling CBI have since been implemented at the firm where the breach originated. The two attorneys also kept the Commission promptly informed of the status of their continuing efforts to mitigate the breach, including expunging the documents containing CBI that were released to the PTO, and securing confirmation from those who received the documents that their copies had been destroyed. The Commission also considered the significant aggravating circumstances that the CBI was seen by non-signatories to the APO, and the breaches resulted in two disclosures, through EDIS and the PTO. Additionally, the law firm where the breaches originated did not discover the breaches, but rather was informed by an attorney for a respondent in the earlier section 337 investigation about the CBI labeled as public attached to the complaint in the new investigation. Case 3. The Commission determined that an attorney at a law firm breached the APO issued in a section 337 investigation when the attorney inadvertently submitted to the U.S. Court of Appeals for the Federal Circuit (``CAFC'') a Commission opinion containing CBI. The opinion was attached to the filing of a non-confidential version of a motion. The Federal Circuit uploaded the document to the court's electronic filing system, and the CBI was publicly available for approximately thirteen weeks before the attorney discovered the disclosure. The attorney immediately reported the disclosure to the Commission and took steps to remedy the breach. The Commission determined to issue the attorney a private letter of reprimand for breaching the APO. The Commission considered the mitigating factors that the breach was unintentional and that it was discovered by the breaching party. In addition, the attorney promptly notified opposing counsel, the Commission, and the Court regarding the breach and immediately undertook steps to remedy the breach. Finally, the Commission had not found the attorney to be in breach of a Commission APO within the previous two years. The Commission also considered the aggravating factor that the CBI in question was publicly available on the Court's electronic filing system for an extended period of time and therefore was presumably viewed by unauthorized persons. Case 4. Two law firms in a section 337 investigation were responsible for three breaches of the APO. One firm self-reported that seven of its attorneys and two outside consultants had accessed CBI prior to filing protective order acknowledgements. Shortly thereafter another firm involved in the investigation self-reported that four of its attorneys had accessed CBI prior to filing protective order acknowledgements. The Commission determined to send warning letters to these attorneys and consultants pursuant to Commission rule 201.15(a), 19 CFR 201.15(a), due to their use of CBI in the investigation prior to filing a protective order acknowledgement. The Commission determined that the supervisory attorneys responsible for this section 337 investigation in the two firms violated the APO by failing to adequately supervise access to and the handling of CBI by firm attorneys and outside consultants, thereby contributing to or directly disclosing CBI to unauthorized persons. The Commission issued warning letters to the supervisory attorneys in both firms. The first of the two law firms also self-reported that it had filed a public brief with an attachment containing CBI with the CAFC. This APO violation was initially given a separate APOB investigation number and subsequently combined with the other breaches for the purposes of investigation. The brief was not made available to the public and was replaced with a version in which the CBI was removed. This brief had been transmitted to four clients of the firm who were not subject to the APO. They were contacted and were [[Page 29327]] able to delete the email transmitting the document before they had read the document with the CBI. For this breach the Commission issued warning letters to the two attorneys responsible for filing and transmitting the brief with the attachment containing CBI. The Commission issued a private letter of reprimand to the law firm. The Commission considered certain mitigating circumstances. These included that the breaches were unintentional, the breaching parties had no prior breaches within the previous two years, the breaching parties took corrective measures to prevent a breach in the future, and the breaches were promptly self-reported to the Commission. With regard to the private letter of reprimand sent to the law firm, the Commission considered the aggravating circumstance that the firm was involved in two violations of the APO issued in the same section 337 investigation. The Commission found that the firm failed to adequately control access to CBI in the investigation and the appeal of the investigation to the CAFC. Case 5. This APOB investigation was instituted regarding the filing at the CAFC of a public brief with CBI contained in an attachment. That investigation was combined with Case 4 and is discussed above. By order of the Commission. Issued: June 22, 2017. Lisa R. Barton, Secretary to the Commission. [FR Doc. 2017-13486 Filed 6-27-17; 8:45 am] BILLING CODE 7020-02-P
![29322 Federal Register / Vol. 82, No. 123 / Wednesday, June 28, 2017 / Notices
Authority: 60.13 of 36 CFR part 60. CALIFORNIA Portland Sanitarium Nurses’ Quarters, 6012
SE. Yamhill St., Portland, SG100001275
Dated: June 9, 2017. San Bernardino County
J. Paul Loether, Guapiabit—Serrano Homeland Tillamook County
Chief, National Register of Historic Places/ Archaeological District, Address Pine Grove Community House, 225 Laneda
National Historic Landmarks Program and Restricted, Hesperia vicinity, SG100001258 Ave., Manzanita, SG100001276
Keeper of the National Register. DELAWARE A request for removal has been made
[FR Doc. 2017–13485 Filed 6–27–17; 8:45 am] for the following resource(s):
Sussex County
BILLING CODE 4312–52–P
Dinker—Irvin House, 310 Garfield Pkwy. TENNESSEE
Extended, Bethany Beach, SG100001259 Hamblen County
DEPARTMENT OF THE INTERIOR MASSACHUSETTS Morristown College Historic District, 417 N.
James St., Morristown, OT83003036
National Park Service Worcester County
Worcester State Hospital Farmhouse, 361 The State Historic Preservation
[NPS–WASO–NRNHL–23506; Plantation St., Worcester, SG100001262 Officer reviewed the following
PPWOCRADI0, PCU00RP14.R50000] nomination and responded to the
NEW JERSEY
Federal Preservation Officer within 45
National Register of Historic Places; Burlington County days of receipt of the nomination and
Notification of Pending Nominations
Protestant Community Church of Medford supports listing the property in the
and Related Actions
Lakes, The 100 Stokes Rd., Medford Lakes National Register of Historic Places.
AGENCY: National Park Service, Interior. Borough, SG100001263 An additional documentation has
ACTION: Notice. Essex County been received for the following
resource(s):
Collins House, 108 Baldwin St., Bloomfield
SUMMARY: The National Park Service is Township, SG100001264 MAINE
soliciting comments on the significance
of properties nominated before May 20, NEW YORK Hancock County
2017, for listing or related actions in the Niagara County Schoodic Peninsula Historic District
National Register of Historic Places. (Additional Documentation), (Acadia
Niagara Power Project Historic District, 5777 National Park MPS), 1.5 mi. S of ME 186,
DATES: Comments should be submitted Lewiston Rd. (Power Vista), Lewiston, Winter Harbor vicinity, AD07000614
by July 13, 2017. SG100001265
Authority: 60.13 of 36 CFR part 60.
ADDRESSES: Comments may be sent via Rockland County
U.S. Postal Service and all other carriers Dated: June 2, 2017.
Tallman—Budke and Vanderbilt—Budke—
to the National Register of Historic Traphagen Houses, 131 Germonds Rd., J. Paul Loether,
Places, National Park Service, 1849 C St. Clarkstown, SG100001266 Chief, National Register of Historic Places/
NW., MS 7228, Washington, DC 20240. National Historic Landmarks Program.
OHIO
SUPPLEMENTARY INFORMATION: The [FR Doc. 2017–13483 Filed 6–27–17; 8:45 am]
properties listed in this notice are being Clark County BILLING CODE 4312–52–P
considered for listing or related actions Lagonda State Bank, 2 E. Main St.,
in the National Register of Historic Springfield, SG100001267
Places. Nominations for their Franklin County INTERNATIONAL TRADE
consideration were received by the Yuster Building, 150 E. Broad St., Columbus, COMMISSION
National Park Service before May 20, SG100001268
2017. Pursuant to section 60.13 of 36 Summary of Commission Practice
CFR part 60, written comments are Hamilton County Relating to Administrative Protective
being accepted concerning the Masonic Temple Price Hill Lodge, No. 524, Orders
significance of the nominated properties 3301 Price Ave., Cincinnati, SG100001269
Traction Company Building, 432 Walnut St., AGENCY: U.S. International Trade
under the National Register criteria for Commission.
Cincinnati, SG100001270
evaluation.
ACTION: Summary of Commission
Before including your address, phone Summit County
practice relating to administrative
number, email address, or other East Liberty School, District No. 11, 3492 S. protective orders.
personal identifying information in your Arlington St., Green, SG100001271
comment, you should be aware that OREGON SUMMARY: Since February 1991, the U.S.
your entire comment—including your International Trade Commission/
personal identifying information—may Deschutes County (‘‘Commission’’) has published in the
be made publicly available at any time. Troy Field, 690 NW. Bond St., Bend, Federal Register reports on the status of
While you can ask us in your comment SG100001272 its practice with respect to violations of
to withhold your personal identifying Lane County its administrative protective orders
information from public review, we (‘‘APOs’’) under title VII of the Tariff
Clearwater, Jacob, House, 1656 Clearwater
cannot guarantee that we will be able to Ln., Springfield, SG100001273 Act of 1930, in response to a direction
do so.
asabaliauskas on DSKBBXCHB2PROD with NOTICES
Triangle Lake Round Barn, 19941 OR 36, contained in the Conference Report to
Nominations submitted by State Blachly, SG100001274 the Customs and Trade Act of 1990.
Historic Preservation Officers: Over time, the Commission has added to
Multnomah County
its report discussions of APO breaches
ARKANSAS Eastmoreland Historic District, (Historic
Residential Suburbs in the United States,
in Commission proceedings other than
Searcy County 1830–1960 MPS), The district is generally under title VII and violations of the
Leslie Commercial Historic District, 319–424 bounded on the north by SE Woodstock Commission’s rules including the rule
Main and 205 Oak Sts., Leslie, Boulevard, to the west by Eastmoreland on bracketing business proprietary
SG100001257 Golf Course, Portland, MP100001256 information (‘‘BPI’’) (the ‘‘24-hour
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rule’’). This notice provides a summary 1998); 64 FR 23355 (April 30, 1999); 65 in the form attached hereto (the
of breach investigations (APOB FR 30434 (May 11, 2000); 66 FR 27685 authorized applicant shall also sign
investigations) completed during (May 18, 2001); 67 FR 39425 (June 7, such acknowledgment and will be
calendar year 2015. This summary 2002); 68 FR 28256 (May 23, 2003); 69 deemed responsible for such persons’
addresses one APOB investigation FR 29972 (May 26, 2004); 70 FR 42382 compliance with this APO);
related to a proceeding under title VII of (July 25, 2005); 71 FR 39355 (July 12, (2) Use such BPI solely for the
the Tariff Act of 1930 and four APOB 2006); 72 FR 50119 (August 30, 2007); purposes of the above-captioned
investigations related to proceedings 73 FR 51843 (September 5, 2008); 74 FR Commission investigation or for judicial
under section 337 of the Tariff Act of 54071 (October 21, 2009); 75 FR 54071 or binational panel review of such
1930, two of which were related to the (October 27, 2010), 76 FR 78945 Commission investigation;
same proceedings and were combined. (December 20, 2011), 77 FR 76518 (3) Not consult with any person not
The Commission investigated rules (December 28, 2012), 78 FR 79481 described in paragraph (1) concerning
violations as part of one of the APOB (December 30, 2013), 80 FR 1664 BPI disclosed under this APO or
investigations. The Commission intends (January 13, 2015) and 81 FR 17200 otherwise obtained in this investigation
that this report inform representatives of (March 28, 2016). This report does not without first having received the written
parties to Commission proceedings as to provide an exhaustive list of conduct consent of the Secretary and the party
some specific types of APO breaches that will be deemed to be a breach of the or the representative of the party from
encountered by the Commission and the Commission’s APOs. APO breach whom such BPI was obtained;
corresponding types of actions the inquiries are considered on a case-by- (4) Whenever materials e.g.,
Commission has taken. case basis. documents, computer disks, etc.
FOR FURTHER INFORMATION CONTACT: Ron As part of the effort to educate containing such BPI are not being used,
Traud, Esq., Office of the General practitioners about the Commission’s store such material in a locked file
Counsel, U.S. International Trade current APO practice, the Commission cabinet, vault, safe, or other suitable
Commission, telephone (202) 205–3088. Secretary issued in March 2005 a fourth container (N.B.: Storage of BPI on so-
Hearing impaired individuals are edition of An Introduction to called hard disk computer media is to
advised that information on this matter Administrative Protective Order Practice be avoided, because mere erasure of
can be obtained by contacting the in Import Injury Investigations (Pub. No. data from such media may not
Commission’s TDD terminal at (202) 3755). This document is available upon irrecoverably destroy the BPI and may
205–1810. request from the Office of the Secretary, result in violation of paragraph C of this
General information concerning the U.S. International Trade Commission, APO);
Commission can also be obtained by 500 E Street SW., Washington, DC (5) Serve all materials containing BPI
accessing its Web site (http:// 20436, tel. (202) 205–2000 and on the disclosed under this APO as directed by
www.usitc.gov). Commission’s Web site at http:// the Secretary and pursuant to section
www.usitc.gov. 207.7(f) of the Commission’s rules;
SUPPLEMENTARY INFORMATION:
(6) Transmit each document
Representatives of parties to I. In General containing BPI disclosed under this
investigations or other proceedings APO:
conducted under title VII of the Tariff A. Antidumping and Countervailing
Duty Investigations (i) With a cover sheet identifying the
Act of 1930, section 337 of the Tariff Act document as containing BPI,
of 1930, the North American Free Trade The current APO form for (ii) with all BPI enclosed in brackets
Agreement (NAFTA) Article 1904.13, antidumping and countervailing duty and each page warning that the
and safeguard-related provisions such as investigations, which was revised in document contains BPI,
section 202 of the Trade Act of 1974, March 2005, requires the applicant to (iii) if the document is to be filed by
may enter into APOs that permit them, swear that he or she will: a deadline, with each page marked
under strict conditions, to obtain access (1) Not divulge any of the BPI ‘‘Bracketing of BPI not final for one
to BPI (title VII) and confidential disclosed under this APO or otherwise business day after date of filing,’’ and
business information (‘‘CBI’’) obtained in this investigation and not (iv) if by mail, within two envelopes,
(safeguard-related provisions and otherwise available to him or her, to any the inner one sealed and marked
section 337) of other parties or non- person other than— ‘‘Business Proprietary Information—To
parties. See, e.g., 19 U.S.C. 1677f; 19 (i) Personnel of the Commission be opened only by [name of recipient]’’,
CFR 207.7; 19 U.S.C. 1337(n); 19 CFR concerned with the investigation, and the outer one sealed and not
210.5, 210.34; 19 U.S.C. 2252(i); 19 CFR (ii) The person or agency from whom marked as containing BPI;
206.17; 19 U.S.C. 1516a(g)(7)(A); and 19 the BPI was obtained, (7) Comply with the provision of this
CFR 207.100, et. seq. The discussion (iii) A person whose application for APO and section 207.7 of the
below describes APO breach disclosure of BPI under this APO has Commission’s rules;
investigations that the Commission has been granted by the Secretary, and (8) Make true and accurate
completed during calendar year 2015, (iv) Other persons, such as paralegals representations in the authorized
including a description of actions taken and clerical staff, who (a) are employed applicant’s application and promptly
in response to these breaches. or supervised by and under the notify the Secretary of any changes that
Since 1991, the Commission has direction and control of the authorized occur after the submission of the
asabaliauskas on DSKBBXCHB2PROD with NOTICES
regularly published a summary of its applicant or another authorized application and that affect the
actions in response to violations of applicant in the same firm whose representations made in the application
Commission APOs and rule violations. application has been granted; (b) have a (e.g., change in personnel assigned to
See 56 FR 4846 (February 6, 1991); 57 need thereof in connection with the the investigation);
FR 12335 (April 9, 1992); 58 FR 21991 investigation; (c) are not involved in (9) Report promptly and confirm in
(April 26, 1993); 59 FR 16834 (April 8, competitive decision making for an writing to the Secretary any possible
1994); 60 FR 24880 (May 10, 1995); 61 interested party which is a party to the breach of this APO; and
FR 21203 (May 9, 1996); 62 FR 13164 investigation; and (d) have signed the (10) Acknowledge that breach of this
(March 19, 1997); 63 FR 25064 (May 6, acknowledgment for clerical personnel APO may subject the authorized
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confidence of submitters of BPI/CBI that employed for the purposes of the circumstances in which they did not
the Commission is a reliable protector of investigation are required to sign onto technically breach the APO, but when
BPI/CBI; (b) disciplining breachers; and the APO and agree to comply with its their actions or inactions did not
(c) deterring future violations. As the provisions. demonstrate diligent care of the APO
Conference Report to the Omnibus The records of Commission materials even though they appeared
Trade and Competitiveness Act of 1988 investigations of alleged APO breaches regularly before the Commission and
observed, ‘‘[T]he effective enforcement in antidumping and countervailing duty were aware of the importance the
of limited disclosure under cases, section 337 investigations, and Commission placed on the care of APO
administrative protective order depends safeguard investigations are not publicly materials.
in part on the extent to which private available and are exempt from Counsel participating in Commission
parties have confidence that there are disclosure under the Freedom of investigations have reported to the
effective sanctions against violation.’’ Information Act, 5 U.S.C. 552. See 19 Commission potential breaches
H.R. Conf. Rep. No. 576, 100th Cong., U.S.C. 1677f(g), 19 U.S.C. 1333(h), 19 involving the electronic transmission of
1st Sess. 623 (1988). CFR 210.34(c). public versions of documents. In these
The Commission has worked to The two types of breaches most cases, the document transmitted appears
develop consistent jurisprudence, not frequently investigated by the to be a public document with BPI or CBI
only in determining whether a breach Commission involve the APO’s omitted from brackets. However, the
has occurred, but also in selecting an prohibition on the dissemination of BPI confidential information is actually
appropriate response. In determining or CBI to unauthorized persons and the retrievable by manipulating codes in
the appropriate response, the APO’s requirement that the materials software. The Commission has found
Commission generally considers received under the APO be returned or that the electronic transmission of a
mitigating factors such as the destroyed and that a certificate be filed public document containing BPI or CBI
unintentional nature of the breach, the indicating which action was taken after in a recoverable form was a breach of
lack of prior breaches committed by the the termination of the investigation or the APO.
breaching party, the corrective measures any subsequent appeals of the Counsel have been cautioned to be
taken by the breaching party, and the Commission’s determination. The certain that each authorized applicant
promptness with which the breaching dissemination of BPI/CBI usually occurs files within 60 days of the completion
party reported the violation to the as the result of failure to delete BPI/CBI of an import injury investigation or at
Commission. The Commission also from public versions of documents filed the conclusion of judicial or binational
considers aggravating circumstances, with the Commission or transmission of review of the Commission’s
especially whether persons not under proprietary versions of documents to determination a certificate that to his or
the APO actually read the BPI/CBI. The unauthorized recipients. Other breaches her knowledge and belief all copies of
Commission considers whether there have included the failure to bracket BPI/CBI have been returned or
have been prior breaches by the same properly BPI/CBI in proprietary destroyed and no copies of such
person or persons in other documents filed with the Commission, material have been made available to
investigations and multiple breaches by the failure to report immediately known any person to whom disclosure was not
the same person or persons in the same violations of an APO, and the failure to specifically authorized. This
investigation. adequately supervise non-lawyers in the requirement applies to each attorney,
The Commission’s rules permit an handling of BPI/CBI. consultant, or expert in a firm who has
economist or consultant to obtain access Occasionally, the Commission been granted access to BPI/CBI. One
to BPI/CBI under the APO in a title VII conducts APOB investigations that firm-wide certificate is insufficient.
or safeguard investigation if the involve members of a law firm or Attorneys who are signatories to the
economist or consultant is under the consultants working with a firm who APO representing clients in a section
direction and control of an attorney were granted access to APO materials by 337 investigation should inform the
under the APO, or if the economist or the firm although they were not APO administrative law judge and the
consultant appears regularly before the signatories. In many of these cases, the Commission’s secretary if there are any
Commission and represents an firm and the person using the BPI/CBI changes to the information that was
interested party who is a party to the mistakenly believed an APO application provided in the application for access to
investigation. 19 CFR 207.7(a)(3)(B) and had been filed for that person. The the CBI. This is similar to the
(C); 19 CFR 206.17(a)(3)(B) and (C). Commission determined in all of these requirement to update an applicant’s
Economists and consultants who obtain cases that the person who was a non- information in title VII investigations.
access to BPI/CBI under the APO under signatory, and therefore did not agree to In addition, attorneys who are
the direction and control of an attorney be bound by the APO, could not be signatories to the APO representing
nonetheless remain individually found to have breached the APO. Action clients in a section 337 investigation
responsible for complying with the could be taken against these persons, should send a notice to the Commission
APO. In appropriate circumstances, for however, under Commission rule 201.15 if they stop participating in the
example, an economist under the (19 CFR 201.15) for good cause shown. investigation or the subsequent appeal
direction and control of an attorney may In all cases in which action was taken, of the Commission’s determination. The
be held responsible for a breach of the the Commission decided that the non- notice should inform the Commission
APO by failing to redact APO signatory was a person who appeared about the disposition of CBI obtained
asabaliauskas on DSKBBXCHB2PROD with NOTICES
information from a document that is regularly before the Commission and under the APO that was in their
subsequently filed with the Commission was aware of the requirements and possession or they could be held
and served as a public document. This limitations related to APO access and responsible for any failure of their
is so even though the attorney should have verified his or her APO former firm to return or destroy the CBI
exercising direction or control over the status before obtaining access to and in an appropriate manner.
economist or consultant may also be using the BPI/CBI. The Commission
held responsible for the breach of the notes that section 201.15 may also be III. Specific APO Breach Investigations
APO. In section 337 investigations, available to issue sanctions to attorneys Case 1. A lead attorney and and the
technical experts and their staff who are or agents in different factual attorney’ partner, both subject to the
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able to delete the email transmitting the injury, or the establishment of an to the Commission, as provided in
document before they had read the industry in the United States is sections 201.11 and 207.10 of the
document with the CBI. For this breach materially retarded, by reason of Commission’s rules, not later than seven
the Commission issued warning letters imports of ripe olives from Spain, days after publication of this notice in
to the two attorneys responsible for provided for in subheadings 2005.70.02, the Federal Register. Industrial users
filing and transmitting the brief with the 2005.70.04, 2005.70.06, 2005.70.08, and (if the merchandise under
attachment containing CBI. 2005.70.12, 2005.70.16, 2005.70.18, investigation is sold at the retail level)
The Commission issued a private 2005.70.23, 2005.70.25, 2005.70.50, representative consumer organizations
letter of reprimand to the law firm. The 2005.70.60, 2005.70.70, 2005.70.75, have the right to appear as parties in
Commission considered certain 2005.70.91, 2005.70.93, and 2005.70.97 Commission antidumping duty and
mitigating circumstances. These of the Harmonized Tariff Schedule of countervailing duty investigations. The
included that the breaches were the United States, that are alleged to be Secretary will prepare a public service
unintentional, the breaching parties had sold in the United States at less than fair list containing the names and addresses
no prior breaches within the previous value and alleged to be subsidized by of all persons, or their representatives,
two years, the breaching parties took the Government of Spain. Unless the who are parties to these investigations
corrective measures to prevent a breach Department of Commerce extends the upon the expiration of the period for
in the future, and the breaches were time for initiation, the Commission filing entries of appearance.
promptly self-reported to the must reach a preliminary determination Limited disclosure of business
Commission. With regard to the private in antidumping and countervailing duty proprietary information (BPI) under an
letter of reprimand sent to the law firm, investigations in 45 days, or in this case administrative protective order (APO)
the Commission considered the by August 7, 2017. The Commission’s and BPI service list.—Pursuant to
aggravating circumstance that the firm views must be transmitted to Commerce section 207.7(a) of the Commission’s
was involved in two violations of the within five business days thereafter, or rules, the Secretary will make BPI
APO issued in the same section 337 by August 14, 2017. gathered in these investigations
investigation. The Commission found DATES: Effective Date: June 22, 2017.
available to authorized applicants
that the firm failed to adequately control representing interested parties (as
FOR FURTHER INFORMATION CONTACT:
access to CBI in the investigation and defined in 19 U.S.C. 1677(9)) who are
Jordan Harriman (202–205–2610), Office parties to the investigations under the
the appeal of the investigation to the of Investigations, U.S. International
CAFC. APO issued in the investigations,
Trade Commission, 500 E Street SW., provided that the application is made
Case 5. This APOB investigation was Washington, DC 20436. Hearing-
instituted regarding the filing at the not later than seven days after the
impaired persons can obtain publication of this notice in the Federal
CAFC of a public brief with CBI information on this matter by contacting
contained in an attachment. That Register. A separate service list will be
the Commission’s TDD terminal on 202– maintained by the Secretary for those
investigation was combined with Case 4 205–1810. Persons with mobility
and is discussed above. parties authorized to receive BPI under
impairments who will need special the APO.
By order of the Commission. assistance in gaining access to the Conference.—The Commission’s
Issued: June 22, 2017. Commission should contact the Office Director of Investigations has scheduled
Lisa R. Barton, of the Secretary at 202–205–2000. a conference in connection with these
Secretary to the Commission. General information concerning the investigations for 9:30 a.m. on
[FR Doc. 2017–13486 Filed 6–27–17; 8:45 am]
Commission may also be obtained by Wednesday, July 12, 2017, at the U.S.
accessing its internet server (https:// International Trade Commission
BILLING CODE 7020–02–P
www.usitc.gov). The public record for Building, 500 E Street SW., Washington,
this investigation may be viewed on the DC. Requests to appear at the conference
INTERNATIONAL TRADE Commission’s electronic docket (EDIS) should be emailed to William.bishop@
COMMISSION at https://edis.usitc.gov. usitc.gov and Sharon.bellamy@usitc.gov
SUPPLEMENTARY INFORMATION: (DO NOT FILE ON EDIS) on or before
[Investigation Nos. 701–TA–582 and 731– Background.—These investigations July 10, 2017. Parties in support of the
TA–1377 (Preliminary)] are being instituted, pursuant to imposition of countervailing and
Ripe Olives From Spain; Institution of sections 703(a) and 733(a) of the Tariff antidumping duties in these
Antidumping and Countervailing Duty Act of 1930 (19 U.S.C. 1671b(a) and investigations and parties in opposition
Investigations and Scheduling of 1673b(a)), in response to a petition to the imposition of such duties will
Preliminary Phase Investigations deemed filed on June 22, 2017, by the each be collectively allocated one hour
Coalition for Fair Trade in Ripe Olives, within which to make an oral
AGENCY: United States International consisting of Bell-Carter Foods, Walnut presentation at the conference. A
Trade Commission. Creek, CA, and Musco Family Olive nonparty who has testimony that may
ACTION: Notice. Company, Tracy, CA. aid the Commission’s deliberations may
For further information concerning request permission to present a short
SUMMARY: The Commission hereby gives the conduct of these investigations and statement at the conference.
notice of the institution of investigations rules of general application, consult the Written submissions.—As provided in
asabaliauskas on DSKBBXCHB2PROD with NOTICES
and commencement of preliminary Commission’s Rules of Practice and sections 201.8 and 207.15 of the
phase antidumping and countervailing Procedure, part 201, subparts A and B Commission’s rules, any person may
duty investigation Nos. 701–TA–582 (19 CFR part 201), and part 207, submit to the Commission on or before
and 731–TA–1377 (Preliminary) subparts A and B (19 CFR part 207). July 17, 2017, a written brief containing
pursuant to the Tariff Act of 1930 (‘‘the Participation in the investigations and information and arguments pertinent to
Act’’) to determine whether there is a public service list.—Persons (other than the subject matter of the investigations.
reasonable indication that an industry petitioners) wishing to participate in the Parties may file written testimony in
in the United States is materially investigations as parties must file an connection with their presentation at
injured or threatened with material entry of appearance with the Secretary the conference. All written submissions
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Document Created: 2017-06-28 01:10:20
Document Modified: 2017-06-28 01:10:20
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Summary of Commission practice relating to administrative protective orders. | |
| Contact | Ron Traud, 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. | |
| FR Citation | 82 FR 29322 |
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