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`UNITED STATES INTERNATIONAL TRADE COMMISSION
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`Washington, D.C.
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`INV. NO. 337-TA-1381
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`In the Matter of
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`CERTAIN DISPOSABLE VAPORIZER
`DEVICES AND COMPONENTS AND
`PACKAGING THEREOF
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`ORDER NO. 1:
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`PROTECTIVE ORDER
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`(December 20, 2023)
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`WHEREAS, documents and information may be sought, produced or exhibited by and
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`among the parties to the above captioned proceeding, which materials relate to trade secrets or
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`other confidential research, development or commercial information, as such terms are used in the
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`Commission’s Rules, 19 C.F.R. § 210.5;
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`IT IS HEREBY ORDERED THAT:
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`1.
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`Confidential business information is information which concerns or relates to the
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`trade secrets, processes, operations, style of work, or apparatus, or to the production, sales,
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`shipments, purchases, transfers, identification of customers, inventories, amount or source of any
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`income, profits, losses, or expenditures of any person, firm, partnership, corporation, or other
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`organization, or other information of commercial value, the disclosure of which is likely to have
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`the effect of either (i) impairing the Commission’s ability to obtain such information as is
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`necessary to perform its statutory functions; or (ii) causing substantial harm to the competitive
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`position of the person, firm, partnership, corporation, or other organization from which the
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`information was obtained, unless the Commission is required by law to disclose such information.
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`The term “confidential business information” includes “proprietary information” within the
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`meaning of section 777(b) of the Tariff Act of 1930 (19 U.S.C. § 1677f(b)).
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`2(a). Any information submitted, in pre-hearing discovery or in a pleading, motion, or
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`response to a motion either voluntarily or pursuant to order, in this investigation, which is asserted
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`by a supplier to contain or constitute confidential business information shall be so designated by
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`such supplier in writing, or orally at a deposition, conference or hearing, and shall be segregated
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`from other information being submitted. Documents shall be clearly and prominently marked on
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`their face with the legend: “CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO
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`PROTECTIVE ORDER,” or a comparable notice. Such information, whether submitted in writing
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`or in oral testimony, shall be treated in accordance with the terms of this protective order.
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`2(b). The Administrative Law Judge or the Commission may determine that information
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`alleged to be confidential is not confidential, or that its disclosure is necessary for the proper
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`disposition of the proceeding, before, during or after the close of a hearing herein. If such a
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`determination is made by the Administrative Law Judge or the Commission, opportunity shall be
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`provided to the supplier of such information to argue its confidentiality prior to the time of such
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`ruling.
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`3.
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`In the absence of written permission from the supplier or an order by the
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`Commission or the Administrative Law Judge, any confidential documents or business
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`information submitted in accordance with the provisions of paragraph 2 above shall not be
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`disclosed to any person other than: (i) outside counsel for parties to this investigation, including
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`necessary secretarial and support personnel assisting such counsel; (ii) qualified persons taking
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`testimony involving such documents or information and necessary stenographic and clerical
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`personnel thereof; (iii) technical experts and their staff who are employed for the purposes of this
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`litigation (unless they are otherwise employed by, consultants to, or otherwise affiliated with a
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`non-governmental party, or are employees of any domestic or foreign manufacturer, wholesaler,
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`retailer, or distributor of the products, devices or component parts which are the subject of this
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`investigation); (iv) the Commission, the Administrative Law Judge, the Commission staff, and
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`personnel of any governmental agency as authorized by the Commission; (v) the Commission, its
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`employees and Offices, and contract personnel (a) for developing or maintaining the records of
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`this investigation or related proceedings, or (b) in internal investigations, audits, reviews,
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`evaluations relating to the programs, personnel, and operations of the Commission including under
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`to 5 U.S.C. Appendix 3; and (vi) U.S. government employees and contract personnel, solely for
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`cybersecurity purposes.1
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`4.
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`Confidential business information submitted in accordance with the provisions of
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`paragraph 2 above shall not be made available to any person designated in paragraph 3(i)2 and (iii)
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`unless he or she shall have first read this order and shall have agreed, by letter filed with the
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`Secretary of this Commission: (i) to be bound by the terms thereof; (ii) not to reveal such
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`confidential business information to anyone other than another person designated in paragraph 3;
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`and (iii) to utilize such confidential business information solely for purposes of this investigation.
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`The letter shall also include the following acknowledgement:
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`information
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`I, the undersigned, on behalf of
`submitted for purposes of this Investigation may be disclosed to and used:
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`(i)
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`by the Commission, its employees and Offices, and contract personnel (a)
`for developing or maintaining the records of this or a related proceeding, or
`(b) in internal investigations, audits, reviews, and evaluations relating to the
`programs, personnel, and operations of the Commission including under 5
`U.S.C. Appendix 3; or
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`1 See Commission Administrative Order 16-01 (Nov. 7, 2015).
`2 Necessary secretarial and support personnel assisting counsel need not sign onto the protective
`order themselves because they are covered by counsel’s signing onto the protective order.
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`(ii)
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`by U.S. government employees and contract personnel, solely for
`cybersecurity purposes. I understand that all contract personnel will sign
`appropriate nondisclosure agreements.
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`5.
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`If the Commission or the Administrative Law Judge orders, or if the supplier and
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`all parties to the investigation agree, that access to, or dissemination of information submitted as
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`confidential business information shall be made to persons not included in paragraph 3 above, such
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`matter shall only be accessible to, or disseminated to, such persons based upon the conditions
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`pertaining to, and obligations arising from this order, and such persons shall be considered subject
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`to it, unless the Commission or the Administrative Law Judge finds that the information is not
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`confidential business information as defined in paragraph 1 thereof.
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`6(a). Any confidential business information submitted to the Commission or the
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`Administrative Law Judge in connection with a motion or other proceeding within the purview of
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`this investigation shall be submitted under seal pursuant to paragraph 2 above. Any portion of a
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`transcript in connection with this investigation containing any confidential business information
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`submitted pursuant to paragraph 2 above shall be bound separately and filed under seal. When
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`any confidential business information submitted in accordance with paragraph 2 above is included
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`in an authorized transcript of a deposition or exhibits thereto, arrangements shall be made with the
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`court reporter taking the deposition to bind such confidential portions and separately label them
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`“CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER.”
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`Before a court reporter or translator receives any such information, he or she shall have first read
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`this order and shall have agreed in writing to be bound by the terms thereof. Alternatively, he or
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`she shall sign the agreement included as Attachment A hereto. Copies of each such signed
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`agreement shall be provided to the supplier of such confidential business information and the
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`Secretary of the Commission.
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`4
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`6(b). Submitters3 are strongly encouraged to encrypt nonpublic documents that are
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`electronically transmitted to the Commission to protect your sensitive information from
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`unauthorized disclosure. The USITC secure drop-box system and the Electronic Document
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`Information System (EDIS) use Federal Information Processing Standards (FIPS) 140-2
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`cryptographic algorithms to encrypt data in transit. Submitting your nonpublic documents by a
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`means that does not use these encryption algorithms (such as by email) may subject your firm’s
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`nonpublic information to unauthorized disclosure during transmission. If you choose a non-
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`encrypted method of electronic transmission, the Commission warns you that the risk of such
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`possible unauthorized disclosure is assumed by you and not by the Commission.
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`7.
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`The restrictions upon, and obligations accruing to, persons who become subject to
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`this order shall not apply to any information submitted in accordance with paragraph 2 above to
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`which the person asserting the confidential status thereof agrees in writing, or the Commission or
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`the Administrative Law Judge rules, after an opportunity for hearing, was publicly known at the
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`time it was supplied to the receiving party or has since become publicly known through no fault
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`of the receiving party.
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`8.
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`The Commission, the Administrative Law Judge, and the Commission investigative
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`attorney acknowledge that any document or information submitted as confidential business
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`information pursuant to paragraph 2 above is to be treated as such within the meaning of 5 U.S.C.
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`§ 552(b)(4) and 18 U.S.C. § 1905, subject to a contrary ruling, after hearing, by the Commission
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`or its Freedom of Information Act Officer, or the Administrative Law Judge. When such
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`information is made part of a pleading or is offered into the evidentiary record, the data set forth
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`3 “Submitters” of confidential business information are the same as “suppliers” of confidential
`business information as that term is used in the context of this order. See Commission
`Administrative Order 16-01 (Nov. 7, 2015).
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`5
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`in 19 C.F.R. § 201.6 must be provided except during the time that the proceeding is pending before
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`the Administrative Law Judge. During that time, the party offering the confidential business
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`information must, upon request, provide a statement as to the claimed basis for its confidentiality.
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`9.
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`Unless a designation of confidentiality has been withdrawn, or a determination has
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`been made by the Commission or the Administrative Law Judge that information designated as
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`confidential, is no longer confidential, the Commission, the Administrative Law Judge, and the
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`Commission investigative attorney shall take all necessary and proper steps to preserve the
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`confidentiality of, and to protect each supplier's rights with respect to, any confidential business
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`information designated by the supplier in accordance with paragraph 2 above, including, without
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`limitation: (a) notifying the supplier promptly of (i) any inquiry or request by anyone for the
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`substance of or access to such confidential business information, other than those authorized
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`pursuant to this order, under the Freedom of Information Act, as amended (5 U.S.C. § 552) and
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`(ii) any proposal to redesignate or make public any such confidential business information; and (b)
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`providing the supplier at least seven days after receipt of such inquiry or request within which to
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`take action before the Commission, its Freedom of Information Act Officer, or the Administrative
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`Law Judge, or otherwise to preserve the confidentiality of and to protect its rights in, and to, such
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`confidential business information.
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`10.
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`If while an investigation is before the Administrative Law Judge, a party to this
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`order who is to be a recipient of any business information designated as confidential and submitted
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`in accordance with paragraph 2 disagrees with respect to such a designation, in full or in part, it
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`shall notify the supplier in writing, and they will thereupon confer as to the status of the subject
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`information proffered within the context of this order. If prior to, or at the time of such a
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`conference, the supplier withdraws its designation of such information as being subject to this
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`6
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`order, but nonetheless submits such information for purposes of the investigation; such supplier
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`shall express the withdrawal, in writing, and serve such withdrawal upon all parties and the
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`Administrative Law Judge. If the recipient and supplier are unable to concur upon the status of
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`the subject information submitted as confidential business information within ten days from the
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`date of notification of such disagreement, any party to this order may raise the issue of the
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`designation of such a status to the Administrative Law Judge who will rule upon the matter. The
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`Administrative Law Judge may sua sponte question the designation of the confidential status of
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`any information and, after opportunity for hearing, may remove the confidentiality designation.
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`11.
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`No less than 10 days (or any other period of time designated by the Administrative
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`Law Judge) prior to the initial disclosure to a proposed expert of any confidential information
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`submitted in accordance with paragraph 2, the party proposing to use such expert shall submit in
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`writing the name of such proposed expert and his or her educational and detailed employment
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`history to the supplier. If the supplier objects to the disclosure of such confidential business
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`information to such proposed expert as inconsistent with the language or intent of this order or on
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`other grounds, it shall notify the recipient in writing of its objection and the grounds therefore prior
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`to the initial disclosure. If the dispute is not resolved on an informal basis within ten days of
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`receipt of such notice of objections, the supplier shall submit immediately each objection to the
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`Administrative Law Judge for a ruling. If the investigation is before the Commission the matter
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`shall be submitted to the Commission for resolution. The submission of such confidential business
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`information to such proposed expert shall be withheld pending the ruling of the Commission or
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`the Administrative Law Judge. The terms of this paragraph shall be inapplicable to experts within
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`the Commission or to experts from other governmental agencies who are consulted with or used
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`by the Commission.
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`7
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`12.
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`If confidential business information submitted in accordance with paragraph 2 is
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`disclosed to any person other than in the manner authorized by this protective order, the party
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`responsible for the disclosure must immediately bring all pertinent facts relating to such disclosure
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`to the attention of the supplier and the Administrative Law Judge and, without prejudice to other
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`rights and remedies of the supplier, make every effort to prevent further disclosure by it or by the
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`person who was the recipient of such information.
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`13.
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`Nothing in this order shall abridge the right of any person to seek judicial review
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`or to pursue other appropriate judicial action with respect to any ruling made by the Commission,
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`its Freedom of Information Act Officer, or the Administrative Law Judge concerning the issue of
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`the status of confidential business information.
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`14.
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`Upon final termination of this investigation, each recipient of confidential business
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`information that is subject to this order shall assemble and return to the supplier all items
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`containing such information submitted in accordance with paragraph 2 above, including all copies
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`of such matter which may have been made. Alternatively, the parties subject to this order may,
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`with the written consent of the supplier, destroy all items containing confidential business
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`information and certify to the supplier (or his counsel) that such destruction has taken place. This
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`paragraph shall not apply to the Commission, including its investigative attorney, and the
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`Administrative Law Judge, which shall retain such material pursuant to statutory requirements and
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`for other recordkeeping purposes, but may destroy such material (including electronic media
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`containing such information) in its possession which it regards as surplusage.
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`Notwithstanding the above paragraph, confidential business information may be
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`transmitted to a district court pursuant to Commission Rule 210.5(c).
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`8
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`15.
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`If any confidential business information which is supplied in accordance with
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`paragraph 2 above is supplied by a nonparty to this investigation, such a nonparty shall be
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`considered a “supplier” as that term is used in the context of this order.
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`16.
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`Each nonparty supplier shall be provided a copy of this order by the party seeking
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`information from said supplier.
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`17.
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`The Secretary shall serve a copy of this order upon all parties.
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`SO ORDERED.
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`9
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`Attachment A
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`NONDISCLOSURE AGREEMENT FOR
`REPORTER/STENOGRAPHER/TRANSLATOR
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`, do solemnly swear or affirm that I will not divulge
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`I,
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`any information communicated to me in any confidential portion of the investigation or hearing in
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`the matter of Certain Disposable Vaporizer Devices and Components and Packaging Thereof, Inv.
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`No. 337-TA-1381, except as permitted in the protective order issued in this case. I will not directly
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`or indirectly use or allow the use of such information for any purpose other than that directly
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`associated with my official duties in this case.
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`Further, I will not by direct action, discussion, recommendation, or suggestion to any
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`person reveal the nature or content of any information communicated during any confidential
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`portion of the investigation or hearing in this case.
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`I also affirm that I do not hold any position or official relationship with any of the
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`participants in said investigation.
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`I am aware that the unauthorized use or conveyance of information as specified above is a
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`violation of the Federal Criminal Code and punishable by a fine of up to $10,000, imprisonment
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`of up to ten (10) years, or both.
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`Signed
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`Dated
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`Firm or affiliation
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
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`WASHINGTON, DC 20436
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`ADMINISTRATIVE ORDER: 16-01
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`DATE: November7, 2015
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`SUBJECT: Acknowledgementand Disclaimer Provisions Regarding Disclosure of Confidential
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`Business Information or Business Proprietary Information
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`1, PURPOSE: This order establishes procedures for Commission personnel to follow in using
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`acknowledgement and disclaimer provisions regarding the cybersecurity-related disclosure of
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`confidential business information (CBJ) or business proprietary information (BPI). The
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`statutes governing CBI and BPIgenerally prohibit the Commission from disclosing CBI and
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`BPI to personsoutside certain classes of individuals for certain purposes without the consent
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`of the information’s submitter. The acknowledgementprovision is designed to seek consent
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`to permit disclosure to certain otherclasses of persons for other specified purposes, including
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`cybersecurity purposes, while complying with statutory requirements. The disclaimer
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`provision is also designed to urge the submission of nonpublic documents using encrypted
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`methods and notify the submitter that it assumesthe risk of unauthorized disclosure if a non-
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`encrypted methodis used.
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`2. REFERENCES
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`a, Statutes imposing restrictions on the disclosure of CBJ and BPI, including 18 U.S.C. §
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`1905; 19 U.S.C. §§ 1332(g), 1337(n), 1677f(b)(1)(A).
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`b. Section 201.6 of the Commission’s Rules of Practice and Procedures (19 C.F.R. § 201.6).
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`3. ACKNOWLEDGEMENT AND DISCLAIMER PROVISIONS
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`a. The acknowledgementprovision reads as follows:
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`I, the undersigned, acknowledge that information submitted in response to this request for
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`information and throughout this investigation or other proceeding maybe disclosed to
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`(i) by the Commission, its employees and Offices, and contract personnel (a) for
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`developing or maintaining the records of this or a related proceeding, or(b) in internal
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`investigations, audits, reviews, and evaluationsrelating to the programs, personnel, and
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`operations of the Commission including under 5 U.S.C. Appendix 3; or
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`(ii) by U.S. government employees and contract personnel, solely for cybersecurity
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`purposes. I understandthat all contract personnel will sign appropriate nondisclosure
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`agreements.
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`The disclaimerprovision reads as follows:
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`Submitters are strongly encouraged to encrypt nonpublic documentsthat are
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`electronically transmitted to the Commission to protect your sensitive information from
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`unauthorized disclosure. The USITC secure drop-box system and the Electronic
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`Document Information System (EDIS) use Federal Information Processing Standards
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`(FIPS) 140-2 cryptographic algorithms to encrypt data in transit. Submitting your
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`nonpublic documents by a meansthat does not use these encryption algorithms (such as
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`by email) may subject your firm’s nonpublic information to unauthorized disclosure
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`during transmission. If you choose a non-encrypted method of electronic transmission,
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`the Commission warns youthat the risk of such possible unauthorized disclosureis
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`assumed by youand not by the Commission.
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`The acknowledgement and disclaimer provisions must be includedinall protective orders
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`issued in section 337 proceedings and in all Commission requests for CBI or BPI,
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`including:
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`1.
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`in questionnaires and instruction booklets, as appropriate, in import injury
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`investigations and reviews and in industry and economic analysis
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`proceedings; and
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`in protective orders issued in section 337 proceedings, and in any other
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`appropriate mechanisms for submission of CBI to be determined by the
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`Commission’s Administrative Law Judges.
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`In the acknowledgementprovision, the phrase “internal investigations, audits, reviews,
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`and evaluationsrelating to the programs, personnel, and operations of the Commission”
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`does not include statutory Commission proceedings (viz., proceedings underour statutory
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`authorities, such as 19 U.S.C. §§ 1332, 1337, 2252, and Title VII of the Tariff Act of
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`1930 (19 U.S.C. §§ 1303, 1516A, 1671-1677n)).
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`The acknowledgement provision does not permit CBI or BPI submitted in a statutory
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`Commission proceeding to be disclosed or used in any other proceeding, with two
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`exceptions. In the case of proceedings under Title VII of the Tariff Act of 1930, the
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`Commission andits investigative staff may use BPI in other proceedings involving the
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`same or similar merchandise pursuant to the authorization in the questionnaire form. In
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`the case of proceedings undersection 337 of the Tariff Act of 1930, use of CBI or BPI is
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`permitted in related proceedings as defined in Commission Rule 210.3.
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`e.
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`Inthe acknowledgement provision, the phrase “cybersecurity purposes” means “detecting,
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`preventing, analyzing, investigating, responding to, and reporting on cyber vulnerabilities,
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`misconfigurations or inappropriate permissions on networks, or known or suspected
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`malicious cyberactivity.”
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`f. Protective orders in section 337 proceedings also must include a statementthat third party
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`suppliers of CBI should be given a copy of the protective order.
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`This order supersedes Administrative Order 97-06 and remainsin effect until superseded or
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`By orderof the Chairman:
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`WrenWA.Breodlbnt
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`Meredith M. Broadbent
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