Rule2024-31242
Practice and Procedure: Rules of General Application, Safeguards, Antidumping and Countervailing Duty Investigations, and Section 337 Adjudication and Enforcement
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 3, 2025
Effective
February 3, 2025
Issuing agencies
International Trade Commission
Abstract
The United States International Trade Commission ("Commission") amends its Rules of Practice and Procedure concerning rules of general application, safeguards, antidumping and countervailing duty investigations, and section 337 adjudication and enforcement. The amendments are necessary to make certain technical corrections, to clarify certain provisions, to harmonize different parts of the Commission's rules, and to address concerns that have arisen in Commission practice. The intended effect of the proposed amendments is to facilitate compliance with the Commission's Rules and improve the administration of agency proceedings.
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 2 (Friday, January 3, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 2 (Friday, January 3, 2025)]
[Rules and Regulations]
[Pages 225-248]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31242]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
19 CFR Parts 201, 206, 207, and 210
Practice and Procedure: Rules of General Application, Safeguards,
Antidumping and Countervailing Duty Investigations, and Section 337
Adjudication and Enforcement
AGENCY: International Trade Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The United States International Trade Commission
(``Commission'') amends its Rules of Practice and Procedure concerning
rules of general application, safeguards, antidumping and
countervailing duty investigations, and section 337 adjudication and
enforcement. The amendments are necessary to make certain technical
corrections, to clarify certain provisions, to harmonize different
parts of the Commission's rules, and to address concerns that have
arisen in Commission practice. The intended effect of the proposed
amendments is to facilitate compliance with the Commission's Rules and
improve the administration of agency proceedings.
DATES: Effective February 3, 2025. The rule amendments as stated herein
shall apply to investigations and proceedings instituted subsequent to
the aforementioned date.
FOR FURTHER INFORMATION CONTACT: Cathy Chen, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2392. 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 may also be obtained by accessing
its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>.
SUPPLEMENTARY INFORMATION:
Background
Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes
the Commission to adopt such reasonable procedures, rules, and
regulations as it deems necessary to carry out its functions and
duties. This rulemaking seeks to improve provisions of the Commission's
existing Rules of Practice and Procedure, including increasing the
efficiency of its proceedings and reducing the burdens and costs on the
parties and the agency. The Commission proposed amendments to its rules
governing proceedings conducted under section 337 of the Tariff Act of
1930 (19 U.S.C. 1337), as well as Title VII of the Tariff Act of 1930,
which comprises 19 U.S.C. 1671-1677n, sections 201-202, 204, and 406 of
the Trade Act of 1974 (19 U.S.C. 2251-2252, 2254, and 2436), and
sections 301-302 of the United States-Mexico-Canada Implementation Act
(19 U.S.C. 4551-4552).
This rulemaking was undertaken to make certain technical
corrections, to clarify certain provisions, to harmonize different
parts of the Commission's rules, and to address concerns that have
arisen in Commission practice. The intended effect of the amendments is
to facilitate compliance with the Commission's Rules and improve the
administration of agency proceedings. The Commission is concurrently
considering additional amendments to its rules to be reflected in
future Notices of Proposed Rulemaking.
The current rulemaking is consistent with the Commission's plan to
ensure that the Commission's rules are effective, as detailed in the
Commission's Plan for Retrospective Analysis of Existing Rules,
published February 14, 2012, and found at 77 FR 8114. This plan was
issued in response to Executive Order 13579 of July 11, 2011, and
established a process under which the Commission will periodically
review its significant regulations to determine whether any such
regulations should be modified, streamlined, expanded, or repealed so
as to make the agency's regulatory program more effective or less
burdensome in achieving regulatory objectives. This process includes a
general review of existing regulations in 19 CFR parts 201, 206, 207,
and 210.
Although the Commission considers these rules to be procedural
rules which are excepted from notice-and-comment under 5 U.S.C.
553(b)(3)(A), the Commission invited the public to comment on all the
proposed rules amendments consistent with its ordinary practice. This
practice entails the following steps: (1) publication of a notice of
proposed rulemaking (``NPRM''); (2) solicitation of public comments on
the proposed amendments; (3) Commission review of public comments on
the proposed amendments; and (4) publication of final amendments at
least thirty (30) days prior to their effective date. The Commission
published a NPRM in the Federal Register at 89 FR 22012-39 (Mar. 28,
2024), proposing to amend the Commission's Rules of Practice and
Procedure concerning rules of general application, safeguards,
antidumping and countervailing duty investigations, and section 337
adjudication and enforcement.
The NPRM requested public comment on the proposed rules within
sixty (60) days of publication of the NPRM, i.e., by May 20, 2024. The
Commission received four sets of comments from organizations or law
firms, including one each from the ITC Trial Lawyers Association
(``ITCTLA''); the Customs and International Bar Association
(``CITBA''); the ITC Modernization Alliance (``IMA''); and the law firm
of Sterne, Kessler, Goldstein & Fox P.L.L.C (``Sterne Kessler''). The
IMA is a coalition of companies in the technology, telecom, and
automotive industries that have participated in section 337
investigations, including Amazon, Apple, Comcast, Google, HP, Intel,
Microsoft, and Samsung, among others.
The Commission has carefully considered all comments that it
received. The Commission's response is provided below in a section-by-
section analysis. The Commission appreciates
[[Page 226]]
the time and effort of the commentators in preparing their submissions.
Regulatory Analysis of Proposed Amendments to the Commission's Rules
The Commission has determined that these rules do not meet the
criteria described in section 3(f) of Executive Order 12866 (58 FR
51735, Oct. 4, 1993) and thus do not constitute a significant
regulatory action for purposes of the Executive Order.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is
inapplicable to this rulemaking because it is not one for which a
notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any
other statute. Although the Commission chose to publish a notice of
proposed rulemaking, these regulations are ``agency rules of procedure
and practice,'' and thus are exempt from the notice requirement imposed
by 5 U.S.C. 553(b).
These rules do not contain federalism implications warranting the
preparation of a federalism summary impact statement pursuant to
Executive Order 13132 (64 FR 43255, Aug. 4, 1999).
No actions are necessary under the Unfunded Mandates Reform Act of
1995 (2 U.S.C. 1501 et seq.) because the rules will not result in
expenditure in the aggregate by State, local, and Tribal governments,
or by the private sector, of $100,000,000 or more in any one year, and
will not significantly or uniquely affect small governments, as defined
in 5 U.S.C. 601(5).
The rules are not major rules as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
801 et seq.). Moreover, they are exempt from the reporting requirements
of the Contract With America Advancement Act of 1996 (Pub. L. 104-121)
because they concern rules of agency organization, procedure, or
practice that do not substantially affect the rights or obligations of
non-agency parties.
The amendments are not subject to section 3504(h) of the Paperwork
Reduction Act (44 U.S.C. 3504(h)).
Overview of the Amendments to the Regulations
Many of the final rules set forth in this notice are identical to
the correspondingly numbered proposed rules published in the NPRM on
March 28, 2024. 89 FR 22012-39 (Mar. 28, 2024). For many of the
proposed rules, only positive comments were received or no comment was
received. Specifically, the commentators generally support replacing
gender-specific language with gender-neutral language in the rules.
These rules are: Sec. Sec. 201.3a, 201.8, 201.15, 201.20, 201.32,
207.10, 207.15, 210.4, 210.12, 210.14, 210.15, 210.20, 210.25, 210.28,
210.31, 210.32, 210.34, 210.37, 210.49, 210.65, and 210.67. The
commentators also generally support the elimination of paper copies and
the permanent implementation of e-filing requirements. These rules are:
Sec. Sec. 201.8, 201.12, 201.14, 206.2, 206.8, 207.10, 207.15, 207.23,
207.25, 207.28, 207.30, 207.61, 207.62, 207.65, 207.67, 207.68, 210.4,
210.8, 210.14, and 210.75. The Commission has therefore determined to
adopt the proposed gender-neutral language and e-filing requirements in
the rules as stated in the NPRM. The Commission finds no reason to
change those proposed rules on its own (except for certain technical,
non-substantive changes) before adopting them as final rules. Thus, the
preamble to those unchanged proposed rules is as set forth in the
section-by-section analysis of the proposed rules found in the NPRM 89
FR at 22012-39.
The section-by-section analysis below includes a discussion of all
modifications suggested by the commentators. As a result of some of the
comments, the Commission has determined to modify one (1) of the
proposed amendments from the proposals in the NPRM. Regarding the
provisions of Sec. 210.12 that govern the content, sufficiency, and
submission of a complaint alleging a violation of section 337, the
Commission has determined to remove the language ``of each element''
from paragraph (a)(8)(i) to address the ITCTLA's concern that different
jurisdictions may apply different legal standards for unfair acts
alleged under section 337(a)(1)(A). The Commission agrees with the
ITCTLA that section 337(a)(1)(A) broadly prohibits ``[u]nfair methods
of competition and unfair acts,'' and thus the proposed amendments to
paragraph (a)(8)(i) should be applied in a manner that balances the
Commission's goals of making clear that bare assertions of unfair acts
or methods of competition are insufficient with the need to allege
sufficient information to enable the Commission to determine whether a
cause of action exists. The Commission has also determined to make four
(4) additional changes for consistency or to address its recent
precedent. Regarding the provisions of Sec. 207.10 governing filing of
petitions with the Commission, the Commission has determined to
substitute the language ``he or she'' from paragraph (b)(1)(i) with
``the Secretary.'' Regarding the provisions of Sec. 210.14 governing
consolidation of investigations, the Commission has determined to
substitute the language ``he or she'' from paragraph (g) with ``the
administrative law judge.'' The Commission has also determined to
substitute the language ``its standing to'' in Sec. 210.12 (g)(9)(iv)
and (g)(10)(ii) to ``establish that it can bring pursuant to Sec.
210.12(a)(7).'' The Commission has recently clarified that Sec.
210.12(a)(7) informs who may bring a complaint.
The analysis below refers to the rules as they appeared in the
NPRM. The commentary in the NPRM published on March 28, 2024, is
considered part of the preamble to the final rules to the extent that
such commentary is not inconsistent with the discussion below. See 89
FR at 22012-39.
Section-by-Section Analysis
Part 201--Rules of General Application
Subpart B--Initiation and Conduct of Investigations
Section 201.15
Section 201.15 provides general provisions for attorneys and others
practicing and appearing before the Commission. The Commission proposed
in the NPRM to revise paragraph (a) to indicate that no separate
application for admission to practice before the Commission is
required. It also proposed revising the paragraph to provide that
attorneys practicing or desiring to practice before the Commission must
maintain a bar membership in good standing in any State of the United
States or the District of Columbia and must report any change in status
including, but not limited to, disbarment or suspension by any bar
association, court, or agency. The Commission welcomed comments on
whether these requirements should be mandatory or permissive and how
the Commission should use this information. The Commission further
proposed that non-attorneys desiring to appear before the Commission
may be required to show that they are acceptable in the capacity in
which they seek to appear.
The Commission also proposed to revise paragraph (b) to clarify
that the restrictions on a former officer or employee of the Commission
from practicing or appearing before the Commission in connection with a
matter which was pending in any manner or form in the Commission during
that person's employment applies to both former attorney and non-
attorney employees of the Commission.
Additionally, for the reasons noted above regarding gender neutral
language amendments, under Sec. 201.3a(c), the Commission proposed to
change certain
[[Page 227]]
gender-specific language in Sec. 201.15(a) and (b) to remove several
references to ``he,'' ``him,'' and ``his.'' No substantive changes are
intended.
Comments
The CITBA supports requiring all attorneys appearing before the
Commission to maintain good standing and active bar membership in at
least one U.S. state or the District of Columbia. It also supports
mandatory reporting of any change in that status by the attorney to the
Commission and by the Commission to such bars, including but not
limited to disbarment or suspension by any bar association, court, or
agency. The CITBA submits that ``the Commission has a need to know and
an obligation to report such information to authorities in a position
to take appropriate actions beyond restricting the attorneys'
appearance in Commission proceedings.''
As discussed above in the Overview of the Amendments to the
Regulations, the commentators generally support these changes as well
as replacing gender-specific language with gender-neutral language in
the rules.
Commission Response
No commentator opposes the proposed changes to Sec. 201.15. The
Commission has therefore determined to adopt the proposed rule as
stated in the NPRM. The Commission does not include in the rule a
requirement that the Commission report the status or any change in
status of an attorney to any bar association, court, or agency, though
retains the discretion to do so in appropriate circumstances. It is not
clear that CITBA is advocating for such a rule and in any event has not
stated the basis for its assertion that the Commission has an
obligation to report such information nor is the Commission aware of
such an obligation.
Part 207--Investigations of Whether Injury to Domestic Industries
Results From Imports Sold at Less Than Fair Value or From Subsidized
Exports to the United States
Subpart B--Preliminary Determinations
Section 207.15
Section 207.15 provides for written briefs and a conference in
preliminary phase antidumping and countervailing duty investigations.
Consistent with the proposed amendments to Sec. 201.8, the Commission
proposed to eliminate the requirement for submission of paper copies of
briefs. The Commission proposed to only require submission of paper
copies of written witness testimony when it is provided on the day of
the conference, but not when it is filed electronically prior to the
date of the conference. For the reasons noted in its explanation for
the proposed change under Sec. 201.3a(c), the Commission proposed to
change certain gender-specific language to remove a reference to
``he.'' The Commission also proposed to remove language related to
electronic filing since that requirement is in Sec. 201.8 and to
replace the term ``Director'' with ``presiding official'' for
consistency.
Comments
CITBA comments that permitting parties to either file witness
testimony electronically the day before a conference or submit paper
copies of written witness testimony the day of the conference would
create a perverse incentive for parties to only submit paper copies the
day of the conference, to avoid revealing their testimony to opposing
parties prior to the conference. CITBA urges the Commission to adopt a
requirement that written witness testimony must be filed by a deadline
of 4 p.m. the day before a conference for the submission.
Commission Response
The proposed amendments to Sec. 207.15 would give parties, who
desire to submit written testimony, the option of submitting their
written witness testimony electronically either before the date of the
conference, unaccompanied by paper copies, or on the day of the
conference, but with the added requirement that nine (9) paper copies
of the witness testimony also be filed. This is a change from the
current rule which allows for the submission of written testimony but
only through the provision of paper copies the day of the conference.
The purpose of this change is to provide parties greater flexibility
and eliminate the requirement for paper copies for those parties who
wish to submit written testimony but find providing paper copies
burdensome. The proposed amendments to Sec. 207.15, however, would not
alter the current rule that a party may provide written witness
testimony in connection with its presentation at the conference but is
not required to do so. The Commission recognizes that some witnesses
may choose to submit paper copies the day of the conference, or not to
file written testimony at all, to avoid revealing their testimony in
advance. The Commission, however, encourages parties where possible to
file witness testimony electronically no later than the day before the
conference. Filing witness testimony before the conference is helpful
to Commission staff, because having an advanced opportunity to review
the testimony facilitates staff's understanding of the issues to be
addressed during the conference. Written witness testimony is also
helpful to Commission staff as they may follow along as testimony is
presented and note areas for questions. The Commission, however, has
chosen not to impose a requirement that witness testimony be filed the
day before the conference and instead to adopt a rule that provides
flexibility for parties to choose to file testimony either
electronically no later than the day before the conference, or the same
day with paper copies.
Subpart C--Final Determinations, Short Life Cycle Products
Section 207.24
Section 207.24 provides procedures for hearings. The Commission
proposed to only require submission of paper copies of written witness
testimony when it is provided on the day of the hearing, but not when
it is filed electronically prior to the date of the hearing. The
Commission proposed to delete the reference to Sec. 201.13(f),
consistent with the clarifications proposed for that section.
Comments
CITBA comments that permitting parties to either file witness
testimony electronically the day before a hearing or submit paper
copies of written witness testimony the day of the hearing would create
a perverse incentive for parties to only submit paper copies the day of
the hearing, to avoid revealing their testimony to opposing parties
prior to the conference. CITBA urges the Commission to adopt a
requirement that written witness testimony must be filed by a deadline
of 4 p.m. the day before a hearing for the submission of all witness
testimony.
Commission Response
The proposed amendments to Sec. 207.24 would give parties the
option of submitting written witness testimony electronically either
before the date of the hearing, unaccompanied by paper copies, or on
the day of the hearing, but with the added requirement that nine paper
copies of the witness testimony also be filed. This is a change from
the current rule which allows for the submission of written testimony
but only through the provision of paper copies the day of the hearing.
The purpose of this change is to provide parties greater flexibility
and eliminate the requirement for paper copies for those parties who
wish to submit
[[Page 228]]
written testimony but find providing paper copies burdensome. The
proposed amendments, however, would not alter the current rule that a
party may provide written witness testimony in connection with its
presentation at the hearing but is not required to do so. The
Commission recognizes that some witnesses may choose to submit paper
copies the day of the hearing, or not to file written testimony at all,
to avoid revealing their testimony in advance. The Commission, however,
encourages parties where possible to file witness testimony
electronically no later than the day before the hearing. Filing witness
testimony before the hearing is helpful to Commissioners and staff,
because having an advanced opportunity to review the testimony
facilitates Commissioners' and staff's understanding of the issues to
be addressed during the hearing. Witness testimony is also helpful to
Commissioners and staff as they may follow along as testimony is
presented and note areas for questions. The Commission, however, has
chosen not to impose a requirement that witness testimony be filed the
day before the hearing and instead to adopt a rule that provides
flexibility for parties to choose to file testimony either
electronically no later than the day before the hearing, or the same
day with paper copies.
Subchapter C--Investigations of Unfair Practices in Import Trade
(Section 337) Part 210--Adjudication and Enforcement
Subpart B--Commencement of Preinstitution Proceedings and
Investigations
Section 210.10
Section 210.10 provides the general provisions for institution of
an investigation. The Commission proposed in the NPRM to amend
paragraph (a)(1) of this section to add that the Commission will not
institute an investigation within thirty (30) days after the complaint
is filed if the Commission determines that the complaint or any
exhibits or attachments thereto contain excessive designations of
confidentiality that are not warranted under Sec. Sec. 201.6(a) and
210.5 of this chapter. Proposed paragraph (a)(7) explains that, under
such circumstances, the Commission may require the complainant to file
new nonconfidential versions of the aforesaid submissions in accordance
with Sec. 210.8 and may determine that the thirty (30)-day period for
deciding whether to institute an investigation shall begin to run anew
from the date that the new nonconfidential versions are filed with the
Commission. This is consistent with existing Sec. 210.55(b) of this
chapter, which contains similar provisions pertaining to complaints
accompanied by a motion for temporary relief, and was also proposed to
be added to Sec. 210.75, which concerns enforcement complaints.
Comments
The ITCTLA supports the proposed amendments to Sec. 210.10 and
recognizes that the proposed amendments ``put[ ] stakeholders on notice
of a specific mechanism the Commission may employ to curtail CBI
designation abuses.'' The ITCTLA noted that, although the term
``excessive'' is not ``clearly defined,'' it recognizes that the
suggested language ``is consistent with long-standing rules and
practice and can be interpreted in that context.'' The ITCTLA thus
views the proposed changes as ``codifying existing Commission practices
targeting excessive redactions and causing few, if any, delays to
institution of a complaint.''
Sterne Kessler proposes including an explicit statement that any
decision to not institute will occur only ``after appropriate notice to
correct the excessive designations'' has been provided to complainant.
The ITCTLA and Sterne Kessler offer the same comments regarding
confidentiality designations in Sec. 210.75.
Commission Response
The Commission agrees with the ITCTLA that the proposed amendments
to Sec. Sec. 210.10 and 210.75 implement existing Commission practice
regarding excessive designations of confidentiality as set forth under
Sec. Sec. 201.6(a) and 210.5 of this chapter. The Commission considers
Sterne Kessler's concern to be adequately addressed by the proposed
addition of paragraph (a)(7) in Sec. 210.10, which provides that the
Commission may require the complainant to file new nonconfidential
versions of the submissions determined to contain excessive
designations of confidentiality in accordance with Sec. 210.8, and
that the thirty (30)-day period for the Commission to decide whether to
institute an investigation may begin to run anew from the date that the
new nonconfidential versions are filed with the Commission. As the
ITCTLA recognizes, a complainant can seek guidance from the Office of
Unfair Import Investigations during the pre-filing period regarding
redactions to a complaint or any exhibits or attachments thereto. The
Commission has therefore determined to adopt the proposed rules for
Sec. Sec. 210.10 and 210.75 as stated in the NPRM.
Subpart C--Pleadings
Section 210.12
Section 210.12 contains the provisions governing the content,
sufficiency, and submission of a complaint alleging a violation of
section 337. The Commission proposed in the NPRM to make several
amendments to the existing rule. Specifically:
For the reasons discussed in the NPRM in connection with Sec.
201.8, the Commission proposed to replace ``agent'' in paragraph (a)(1)
with ``corporate representative'' and to amend certain gender-specific
language in paragraphs (a)(1) and (j). The Commission proposed in the
NPRM to amend Sec. 210.12(a)(1) to require a complaint to include
email addresses for the complainant and its duly authorized officer,
attorney, or corporate representative who has signed the complaint. The
proposed amendment to Sec. 210.12(a)(3) removes reference to the
Tariff Schedules of the United States that applied prior to January 1,
1989. The proposed amendment to Sec. 210.12(a)(5) expands the required
disclosure to include information about arbitrations concerning the
alleged unfair methods of competition and unfair acts, or the subject
matter thereof.
The Commission proposed in the NPRM to amend Sec. 210.12(a)(6)(i)
by reorganizing the rule to more clearly distinguish between the
information required to support a complaint based on an alleged
domestic industry that exists and the information required to support a
complaint based on an alleged domestic industry in the process of being
established for complaints that allege a violation based on
infringement of a U.S. patent, or a federally registered copyright,
trademark, mask work, or vessel hull design. The Commission also
proposed correcting typographical errors in spacing and punctuation in
paragraphs 210.12(a)(6)(ii) and 210.12(a)(6)(iii).
The Commission proposed amending Sec. 210.12(a)(7) by removing an
extraneous ``and'' at the end of paragraph (a)(7).
The Commission proposed amending Sec. 210.12(a)(8)(i) and (ii) to
clarify that, for complaints based on an unfair act or method of
competition under section 337(a)(1)(A), the complaint's statement of
facts should include factual allegations that would show the existence
of each element of the cause of action underlying the unfair act or
method of competition. The purpose of these amendments would be to make
[[Page 229]]
clear that bare assertions of unfair acts or methods of competition
without factual allegations supporting all elements of a cognizable
legal theory do not meet the requirements of Sec. 210.12(a)(2). For
example, a complaint based on trade secret misappropriation would have
to include factual allegations sufficient to establish every element of
a trade secret misappropriation claim. The Commission also proposed
correcting the terminal punctuation for Sec. 210.12(a)(8)(ii) and
requires that the complaint state the elements of the proposed legal
theory.
The Commission proposed amending Sec. 210.12(a)(9)(v) by adding a
requirement to disclose known domestic patent applications that
correspond to the patents asserted in the investigation in addition to
the existing required disclosure of foreign patent applications. The
Commission expressed interest in comments from the public regarding the
burden this amendment would place on complainants.
The Commission proposed correcting the terminal punctuation for
Sec. 210.12(a)(9)(xi) and adds an ``and'' at the end of Sec.
210.12(a)(10)(i) for grammatical purposes.
The Commission proposed amending Sec. 210.12(a)(11) by adding a
requirement that a complaint seeking a general exclusion order must
plead factual allegations sufficient to show that such an order is
available under the requirements of section 337(d)(2). The Commission
noted that this information has been voluntarily included in various
complaints filed under the current rules. This proposed amendment would
formalize the requirement to include such information in complaints
going forward. The Commission believes this amendment will lead to
greater efficiency in investigations where general exclusion orders are
requested. The proposed rule also adds an ``and'' at the end of Sec.
210.12(a)(11)(ii) for grammatical purposes.
The Commission proposed amending Sec. 210.12(b) to change the word
``all'' to ``exemplary,'' as the Commission recognizes that it might
not be feasible to submit physical samples of all imported articles.
The Commission proposed amending paragraphs 210.12(c)-(h) to remove
the reference to the ``original'' complaint because the rules propose
to remove paper filings. The Commission proposed amending Sec.
210.12(c)(2) by eliminating the requirement that the complaint be
accompanied by the applicable pages of each technical reference
mentioned in the prosecution history of each involved U.S. patent. The
Commission believes that this requirement is no longer necessary given
the availability of such materials online. The Commission also proposed
amending Sec. 210.12(c) by removing the requirement in subparagraph
(2) for four (4) copies of the patent, because it is duplicative of
Sec. 210.12(a)(9)(i), and by adding new subparagraph (2) requiring one
copy of each prosecution history of any priority applications for the
asserted patents to accompany a patent-based complaint.
Comments
Regarding the proposed amendments to paragraphs 210.12(a)(8)(i) and
(ii), the ITCTLA is concerned that potentially different legal
standards among different judicial circuits for what constitutes an
unfair act subject to section 337(a)(1)(A) may ``make it difficult for
a complainant to be certain that it is adequately including factual
allegations and legal theories that would show the existence of each
element of the cause of action,'' especially where the Commission has
not previously set out a standard for a violation of that cause of
action. The ITCTLA notes that, unlike patent infringement cases, which
are reviewed by a single appeals court, non-patent ``unfair acts are
reviewed by appellate courts throughout the United States resulting in
standards that can vary among circuits.'' As such, the ITCTLA is
``concerned that the proposed amendment could lead to non-institution
of claims for complaints that provide a good faith attempt to
articulate the factual and legal elements of a particular cause of
action.'' It also believes ``[t]his uncertainty could [ ] discourage
parties from bringing new or novel causes of action to the
Commission.'' Thus, while the ITCTLA ``supports efforts to require
specificity in pleading (a)(1)(A) claims,'' it urges the Commission to
apply the rule in a manner consistent with section 337(a)(1)(A)'s
``goal of broadly permitting parties to allege violations of Section
337 for unfair methods of competition and unfair acts.''
Sterne Kessler supports adding the requirement in paragraph
(a)(9)(v) to disclose known domestic patent applications that
correspond to the patents asserted in the investigation. It believes
this requirement is ``especially critical for non-public applications
filed within the eighteen-month publication window or for which a non-
publication request was filed.'' It notes that ``[a]ny such information
could be treated as Confidential Business Information and presumably is
available to complainants despite the additional burden associated with
its disclosure.'' Sterne Kessler also proposes amending Sec. Sec.
210.12(a)(9)(viii) and (ix), and 210.13(b)(1), to clarify that
respondents ``are required to disclose non-infringement and invalidity
claim charts with their Response.''
The IMA notes that, while having no specific comments on or issues
with the proposed amendments to Sec. 210.12, it has concerns which are
not addressed by the proposed amendments. In particular, the IMA
recommends amending Sec. Sec. 210.12(a)(9) and 210.13(b) to add a
requirement for parties to disclose the existence of third-party
litigation funding, which it asserts has been on the rise according to
data it presents regarding patent litigation in district courts. The
IMA believes disclosure of whether third-party litigation funding is
involved in a particular case, and the transparency it brings, are
important to allow the Commission to accurately assess conflicts,
ensure fairness to the parties in a dispute, and assess the effect of
an exclusion order on the public interest.
Commission Response
The ITCTLA's concerns about the potentially differing legal
standards applied by different judicial circuits for unfair acts
subject to section 337(a)(1)(A) appear to be limited to Sec.
210.12(a)(8)(i) and do not concern the proposed amendments to paragraph
(a)(8)(ii). The Commission agrees with the ITCTLA that section
337(a)(1)(A) generally prohibits ``[u]nfair methods of competition and
unfair acts,'' and thus the proposed amendments to paragraph (a)(8)(i)
should be applied in a manner that addresses the Commission's goals of
making clear that bare assertions of unfair acts or methods of
competition are insufficient and the need to allege sufficient
information to enable the Commission to determine whether a cause of
action is properly pled. Upon consideration of the proposed rule, the
Commission has determined to remove the language ``of each element''
from paragraph (a)(8)(i). The Commission believes this change addresses
the ITCTLA's concerns that different jurisdictions may articulate
different standards for certain causes of action.
No commentator opposes adding the requirement in paragraph
(a)(9)(v) to disclose known domestic patent applications that
correspond to the patents asserted in the investigation. The Commission
has therefore determined to adopt the remainder of proposed rule 210.12
as stated in the NPRM.
The Commission has determined not to consider at this time Sterne
Kessler's suggestion to require respondents to disclose non-
infringement and
[[Page 230]]
invalidity claim charts with their Response because it was not part of
the NPRM. The Commission notes the proposal and may consider it in
future rulemakings.
The IMA's proposal to require parties to disclose the existence of
third-party litigation funding in an investigation was not part of the
NPRM. The Commission notes the proposal and may consider it in future
rulemakings.
Section 210.14
Section 210.14 generally provides for amendments to the pleadings
and notice of investigation. Paragraph (a) provides for pre-institution
amendments to the complaint and notice of investigation, while
paragraph (b) provides for post-institution amendments.
The Commission proposed amending the heading of this section to
indicate the existing severance provision under paragraph (h). The
Commission further proposed to add the requirement that amended
complaints, exhibits, and supplements thereto, filed under this section
shall be filed electronically with the Secretary pursuant to Sec.
210.4.
The Commission further proposed to amend paragraphs (a) and (b)(1)
to clarify that any proposed amendment to the complaint and notice of
investigation that introduces an additional unfair act or an additional
respondent must comply with the content requirements of Sec.
210.12(a). See Certain Skin Rejuvenation Resurfacing Devices,
Components Thereof, and Products Containing the Same, Inv. No. 337-TA-
1262, Notice of Commission Decision to Review, and on Review, to Vacate
and Remand an Initial Determination Granting Complainants' Motion to
Amend the Complaint and Notice of Investigation (Sept. 22, 2021). For
example, an amendment to add a cause of action under section
337(a)(1)(A) to an investigation instituted under section 337(a)(1)(B)
of that Act would be required to contain all of the information
required in the relevant portions of Sec. 210.12(a) of the
Commission's Rules. The purpose of the amendment is to ensure that the
public, all affected parties, and/or new respondents have adequate
notice of the scope of any substantive amendment to the complaint and
notice of investigation.
For Sec. 210.14(b)(1), the requirement is also intended to provide
the presiding administrative law judge and the Commission with the
information needed to determine whether good cause exists to allow the
proposed amendment after institution. This section is also amended to
make clear that the complainant shall serve the motion to amend the
complaint and notice of investigation on any new proposed respondent
and on all current respondents. It also is amended to require the
Commission to serve the amended complaint and notice of investigation
on any new respondent and the embassies of the relevant foreign
countries after the Commission determines to affirm or not review an
initial determination granting the motion. Further, this section is
amended to require complainants to file service copies of the complaint
and exhibits, including paper service copies of the amended complaint,
for each new respondent and for the embassy of the country in which the
respondent is located by the close of the next business day after the
amended complaint is filed.
Section 210.14(b)(1) currently lacks any indication of whether and
when a response to an amended complaint and/or notice of investigations
is required. The absence of such guidance has led to inconsistent
practice across investigations. Accordingly, the Commission proposed to
amend Sec. 210.14(b)(1) by clarifying that responses from respondents
currently in the investigation are required, and that they shall be due
within ten (10) days of the service of the order (for amendments only
to the complaint), or of the Commission determination affirming or not
reviewing an initial determination (for amendments to the complaint and
notice of investigation), as applicable, that grants a motion to amend
the complaint and/or notice of investigation. The Commission intends
that any response to an amended complaint and/or notice of
investigation should conform to the same content requirements
applicable to a response to an initial complaint and notice of
investigation, as provided in Sec. 210.13(b). The Commission also
proposed specifying that if any additional respondents are added to the
investigation, they shall have twenty (20) days from the date of
service of the amended complaint and notice of investigation to file a
written response.
Section 210.14(g) currently allows two or more investigations to be
consolidated if: (1) the Commission consolidates the investigations; or
(2) the presiding administrative law judge consolidates investigations
before that judge. There is no mechanism under the current rule for
investigations before different administrative law judges to be
consolidated absent Commission intervention. The proposed amendment to
Sec. 210.14(g) would address this by providing that the Chief
Administrative Law Judge may consolidate investigations that are before
different presiding administrative law judges and assign an
administrative law judge to preside over the consolidated
investigations.
Comments
Sterne Kessler recommends requiring complainants to provide the
Commission (and, accordingly, all parties to the investigation, as well
as the public) with a redlined copy of any amended pleadings, in
addition to a clean copy of the amended pleadings under both paragraphs
(a) and (b).
Commission Response
The Commission does not adopt Sterne Kessler's recommendation to
require complainants to provide a redlined copy of the amended
pleadings. Because amended pleadings are filed electronically with the
Secretary, parties can easily generate a redlined copy of the amended
pleadings.
Subpart E--Discovery and Compulsory Process
Section 210.28
Section 210.28 concerns the procedures governing depositions taken
during Commission investigations. Current Sec. 210.28(a) limits the
number of fact depositions that each party, including the Commission
investigative attorney, may take in an investigation. The Commission is
aware that disputes have arisen over whether depositions of non-party
witnesses count towards the limits in Sec. 210.28(a). In response to
those disputes, the Commission proposed to amend the rule by adding a
sentence clarifying that party and non-party depositions, alike, count
toward the limits recited in paragraph (a). A notice for a corporation
to designate deponents, however, shall continue to count as only one
deposition and shall include all corporate representatives so
designated to respond.
The Commission further proposed to change the limit for
complainants as a group from five (5) fact depositions per respondent
to a total of twenty (20) fact depositions, regardless of the number of
respondents. This amendment effects a simplification of the current
rule, which permits a complainant group to take the greater of either
twenty depositions or five per respondent. It also provides for the
same number of fact depositions for complainants as a group and
respondents as a group. The amendment does not abrogate the presiding
administrative law judge's authority to increase the number of fact
depositions allowed on a showing of good cause by
[[Page 231]]
any party. Thus, the Commission does not anticipate that the proposed
amendment will foreclose a complainant group from taking additional
depositions if good cause to do so exists.
While current Sec. 210.28 limits the number of depositions that
may be taken, there is no provision specifying the maximum permissible
length of a deposition. By contrast, Federal Rule of Civil Procedure 30
presumptively limits depositions to one (1) day of seven (7) hours. The
Committee Notes to the 2000 Amendments to Federal Rule of Civil
Procedure 30(d) explain that the one-day limitation was designed to
restrain undue cost and delay that can result from overlong
depositions. Fed. R. Civ. P. 30(d) (2000 Advisory Committee Note). The
Committee Notes explain that the rule contemplates reasonable breaks
throughout the day and that only time occupied by the actual deposition
will be counted. They further explain that, for purposes of the
durational limit, the deposition of each person designated in response
to a deposition noticed under Federal Rule of Civil Procedure 30(b)(6)
should be considered a separate deposition. Id.
The Commission proposed to amend Sec. 210.28 by adding a new
paragraph (b), which includes a presumptive durational limitation of
one (1) day of seven (7) hours to depositions conducted under that
section consistent with Federal Rule of Civil Procedure 30. The
Commission intends for the limitation to control in the absence of an
agreement among the parties or an order of the presiding administrative
law judge otherwise. The amended rule requires the presiding
administrative law judge to grant additional time as needed, to the
extent consistent with the provisions of paragraphs 210.27(b) through
210.27(d), which govern the scope of and limitations on discovery,
respectively. The reference to those paragraphs is intended to ensure
that additional time is only granted in proportion to the needs of the
investigation. The Commission intends for the same computational rules
to apply as are laid out in the Committee Notes to the 2000 Amendments
to Federal Rule of Civil Procedure 30. Specifically, only time actually
spent conducting the deposition will count towards the seven (7) hour
limit, and for the purpose of the durational limit each individual
designated in response to a deposition notice directed to a party will
be considered a separate deponent. Nothing in this proposed rule should
be construed to alter the provision in paragraph (a) that specifies
that each notice of deposition to a party is counted as a single
deposition for purposes of calculating the total number of depositions
that may be taken by a party.
Due to the addition of new paragraph (b), the Commission proposed
to redesignate current paragraphs (b) through (i) as paragraphs (c)
through (j), respectively.
Current paragraph (f), which in the proposed rule would be
redesignated as paragraph (g), requires the party taking a deposition
to promptly serve a copy of the deposition transcript on the Commission
investigative attorney. As written, current paragraph (f) could be read
as not requiring service of exhibits marked during the deposition. In
order to remove that ambiguity, the Commission proposed amending
current paragraph (f), redesignated as paragraph (g), to make clear
that copies of the deposition exhibits must be included when the
transcript is served on the Commission investigative attorney.
For the reasons noted above under Sec. 210.4, the Commission also
proposed to amend certain gender-specific language in current
paragraphs (c) and (h)(4), redesignated as paragraphs (d) and (i)(4),
respectively, by replacing references to ``he'' and ``him.'' The
Commission also proposed to add that testimony may be taken by
``videoconference'' to current paragraph (c) (redesignated as (d)).
Comments
The ITCTLA cautions against clarifying that party and non-party
depositions, alike, count toward the limits recited in paragraph (a)
for two reasons. First, it believes including non-party depositions in
the twenty-deposition limit under paragraph (a) would ``impede the
development of a fulsome evidentiary record on a number of issues,
particularly those relating to the public interest,'' but also issues
relating to domestic industry, patent validity, and infringement. For
example, the ITCTLA explains that disputes over validity often require
the parties to obtain evidence from third parties regarding prior art
references and potential prior public uses. Moreover, it explains that
non-party discovery may be needed to fully understand the products
accused of infringement and the domestic industries of third parties
upon which a complainant relies, and the impact of the public interest
considerations on non-parties. The ITCTLA further believes that
applying a twenty-deposition limit to complainants as a group
regardless of the number of respondents could impede the ability to
obtain sufficient evidence against each respondent in investigations
involving more than four respondents. This is a particular concern ``in
cases involving widespread infringement, particularly general exclusion
order cases.''
Second, the ITCTLA states that requiring approval before exceeding
the deposition limit ``will either add to the motion practice before
the Administrative Law Judges or not be effective within the short
discovery period in ITC proceedings.'' In particular, it explains that
the need for non-party discovery often is not evident until some
discovery is completed, or initial contentions disclosed, at which
point there is little time remaining [in] the fact discovery period.''
The ITCTLA warns that the proposed rule could cause parties to
routinely file motions for increased depositions at the outset of each
case.
Concerning new paragraph (b), the ITCTLA recommends exempting
translated depositions from the presumptive seven-hour limit because
they ``commonly take longer (often 1.5 to 2 times normal deposition
lengths) to complete.'' Sterne Kessler recommends increasing the
presumptive durational limit for depositions to ten (10) hours if, for
example, an interpreter is required to translate the deposition.
Commission Response
The Commission declines to adopt the ITCTLA's suggestion to remove
the twenty-deposition limit under paragraph (a) or to exclude non-party
depositions from that limit. While the Commission agrees with the
ITCTLA that non-party discovery may be important to certain issues that
arise in section 337 investigations, this does not provide a basis to
distinguish depositions of party witnesses from a non-party witness for
purposes of this rule. The Commission notes that Rule 30(a)(2)(A)(i) of
Federal Rule of Civil Procedure also does not distinguish between party
and non-party witness depositions. In addition, the proposed change to
Sec. 210.28(a) allows twice as many depositions as Rule 30(a)(2)(A)(i)
of Federal Rule of Civil Procedure, which establishes a limitation of
ten (10) depositions being taken by a party unless leave of court is
obtained. As for the ITCTLA's concern that requiring approval from the
administrative law judge before exceeding the twenty-deposition limit
will ``not be effective within the short discovery period in ITC
proceedings,'' it is precisely because of that short period that a
clear limit on the number of depositions at the outset of an
investigation is necessary. Thus, the Commission believes that the
proposed rule provides an adequate number of
[[Page 232]]
depositions for most investigations and provides the administrative law
judge with appropriate flexibility in increasing the number of
depositions as appropriate. Therefore, the final rule is unchanged from
the proposed rule.
Regarding the ITCTLA's and Sterne Kessler's concerns about the need
for additional time if an interpreter is required to translate the
deposition, the Commission declines to exempt depositions using an
interpreter or impose a predetermined durational limit of ten (10)
hours for translated depositions. Rather, the proposed rule encourages
parties to agree to a reasonable length for translated depositions.
Absent an agreement and in keeping with the Federal rules, the
Commission notes that parties may seek additional time for depositions
beyond the default seven (7) hour limit by order of the presiding
administrative law judge. Indeed, the notes to Federal Rule of Civil
Procedure 30 indicate the need for an interpreter is one circumstance
justifying an order extending deposition time limits.
Section 210.30
Section 210.30 is similar to Federal Rule of Civil Procedure 34 and
provides procedures governing requests for production or inspection of
documents and things, as well as entry upon land, during discovery.
Section 210.30, like Federal Rule of Civil Procedure 34, includes
provisions permitting a party from whom information is requested to
object to the request. Current Sec. 210.30 differs from Federal Rule
of Civil Procedure 34, however, in that it does not require an
objecting party to state whether it is withholding any responsive
materials on the basis of its objection. As explained in the Committee
Notes to the 2015 amendments to Federal Rule of Civil Procedure 34,
which added the requirement, the purpose of the amendment was to ``end
the confusion that frequently arises when a producing party states
several objections and still produces information, leaving the
requesting party uncertain whether any relevant and responsive
information has been withheld on the basis of the objections.'' Fed. R.
Civ. P. 34 Advisory Committee Notes--2015 Amendment. For similar
reasons, the Commission proposed to amend Sec. 210.30(b)(2) to include
a requirement that any objection to a request to provide information
must state whether any responsive materials are being withheld on the
basis of that objection and that the party must permit inspection of
any other materials not being withheld.
For the reasons noted above under Sec. 210.4, the Commission
proposed to amend certain gender-specific language in paragraph (a)(1)
by replacing ``his behalf'' with ``that party's behalf.'' In paragraph
(b)(2) of Sec. 210.30, the Commission also proposed to change ``10
days'' to ``ten (10) days'' for clarity. No substantive change is
intended.
Comments
The ITCTLA supports aligning Sec. 210.30(b)(2) with the Federal
Rule of Civil Procedure 34. However, it believes the proposed rule
``may appear unnecessarily burdensome to the producing party without
further explanation by the Commission.'' In particular, the ITCTLA
recommends that the Commission include a reference to the full Advisory
Committee Note on FRCP 34(b)(2)(C), which clarifies that:
The producing party does not need to provide a detailed
description or log of all documents withheld, but does need to alert
other parties to the fact that documents have been withheld and
thereby facilitate an informed discussion of the objection. An
objection that states the limits that have controlled the search for
responsive and relevant materials qualifies as a statement that the
materials have been `withheld.'
The ITCTLA also recommends that the Commission state that federal
court decisions will be used to guide interpretation of the proposed
changes to Sec. 210.30(b)(2).
Commission Response
The Commission proposed amending Sec. 210.30(b)(2) to conform to
the 2015 amendments to FRCP 34(b)(2)(C). Accordingly, the Commission
agrees with the ITCTLA that the proposed rule should be interpreted in
view of the full 2015 Committee Notes, including the helpful guidance
about what the producing party's obligation does and does not require
in practice, and federal court decisions interpreting FRCP 34(b)(2)(C).
As the ITCTLA points out, that guidance provides that parties would not
be required to provide ``an `objection log'--similar to a privilege
log--that specifically listed all of the documents not being produced
as a result of the objection.'' Fed. R. Civ. P. 34 Advisory Committee
Notes--2015 Amendment. Moreover, the Committee Notes explain:
Rather, the rule is satisfied so long as the objecting party
does something to ``alert the other parties to the fact that
documents have been withheld and thereby facilitate an informed
discussion of the objection.'' To that end, the 2015 Committee Note
provides this very sensible solution: ``[a]n objection that states
the limits that have controlled the search for responsive and
relevant materials qualifies as a statement that the materials have
been `withheld.''' For example, if document request seeks materials
going back ten years, and a party thinks that time period is too
long, a response that objects to the length of the time period and
states that the party will search for and produce documents going
back three years sufficiently identifies the materials being
withheld on the basis of the objection.
Fed. R. Civ. P. 34 Advisory Committee Notes--2015 Amendment.
No other comments concerning the proposed amendments to Sec.
210.30 were received other than general support for the use of gender-
neutral language in the rules. The Commission has therefore determined
to adopt the proposed rule as stated in the NPRM with the above
clarifications proposed by the ITCTLA.
List of Subjects in 19 CFR Parts 201, 206, 207, and 210
Administration practice and procedure, Business and industry,
Customs duties and inspection, Imports, Investigations Reporting and
recordkeeping requirements.
For the reasons stated in the preamble, the United States
International Trade Commission proposes to amend 19 CFR parts 201, 206,
207, and 210 as follows:
PART 201--RULES OF GENERAL APPLICATION
0
1. The authority citation for part 201 is revised to read as follows:
Authority: 19 U.S.C. 1335; 19 U.S.C. 2482; the Administrative
Procedure Act (5 U.S.C. 551, et seq.), unless otherwise noted.
Subpart A--Miscellaneous
0
2. Amend Sec. 201.3a by revising paragraph (c) to read as follows:
Sec. 201.3a Missing children information.
* * * * *
(c) The procedure established in paragraph (b) of this section will
result in missing children information being inserted in an estimated
25 percent of the Commission's penalty mail and will cost an estimated
$1,500 for the first year of implementation. The Chief Administrative
Officer shall make such changes in the procedure as the Officer deems
appropriate to maximize the use of missing children information in the
Commission's mail.
Subpart B--Initiation and Conduct of Investigations
0
3. Amend Sec. 201.8 by revising paragraphs (a) and (c), revising and
republishing paragraph (d), and revising paragraphs (e) through (g) to
read as follows:
[[Page 233]]
Sec. 201.8 Filing of documents.
(a) Applicability; where to file; date of filing. This section
applies to all Commission proceedings except, notwithstanding any other
section of this chapter, those conducted under 19 U.S.C. 1337, which
are covered by requirements set out in part 210 of this chapter.
Documents shall be filed with the office of the Secretary through the
Commission's Electronic Document Information System (EDIS) website at
<a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. If a paper filing is required or authorized
under paragraphs (d)(2) and (3) of this section, documents shall be
filed at the office of the Secretary in Washington, DC. Such documents,
if properly filed within the hours of operation specified in Sec.
201.3(c), will be deemed to be filed on the date on which they are
actually received by the Commission.
* * * * *
(c) Specifications for documents. Each document filed under this
chapter shall be signed, double-spaced, clear and legible, except that
a document of two pages or less in length need not be double-spaced.
All submissions shall be in letter-sized format (8.5 x 11 inches),
except copies of documents prepared for another agency or a court
(e.g., pleadings papers). The name of the person signing the original
shall be typewritten or otherwise reproduced on each copy.
(d) Filing. (1) All documents filed with the Commission shall be
filed electronically. All filings shall comply with the procedures set
forth in the Commission's Electronic Document Information System
website at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. See also <a href="https://www.usitc.gov/press_room/edissupport.htm">https://www.usitc.gov/press_room/edissupport.htm</a>. Failure to comply with the requirements of
this chapter and the Handbook on Filing Procedures that apply to the
filing of a document may result in the rejection of the document as
improperly filed.
(2) Supplementary material and witness testimony provided for under
Sec. 201.13 or Sec. 207.15 or Sec. 207.24 of this chapter shall also
be filed in accordance with the provisions of the applicable section.
(3) The Secretary may provide for exceptions and modifications to
the filing requirements set out in this chapter. A person seeking an
exception should consult the Handbook on Filing Procedures.
(4) During any period in which the Commission is closed, deadlines
for filing documents electronically and by other means are extended so
that documents are due on the first business day after the end of the
closure.
(e) Identification of party filing document. Each document filed
with the Commission for the purpose of initiating any investigation
shall show on the first page thereof the name, address, and telephone
number of the party or parties by whom or on whose behalf the document
is filed and shall be signed by the party filing the document or by a
duly authorized officer, attorney, or corporate representative of such
party. Also, any attorney or corporate representative filing the
document shall give a current address, electronic mail address, and
telephone number. The signature of the person signing such a document
constitutes a certification that the person has read the document, that
to the best of that person's knowledge and belief the statements
contained therein are true, and that the person signing the document
was duly authorized to sign it.
(f) Nonconfidential copies. In the event that confidential
treatment of a document is requested under Sec. 201.6(b), a
nonconfidential version of the document shall be filed, in which the
confidential business information shall have been deleted and which
shall have been conspicuously marked ``nonconfidential'' or ``public
inspection.'' The nonconfidential version shall be filed
electronically. In the event that confidential treatment is not
requested for a document under Sec. 201.6(b), the document shall be
conspicuously marked ``No confidential version filed,'' and the
document shall be filed in accordance with paragraph (d) of this
section. The name of the person signing the original shall be
typewritten or otherwise reproduced on each copy.
(g) Cover sheet. For documents that are filed electronically,
parties must complete the cover sheet form for such filing online at
<a href="https://edis.usitc.gov">https://edis.usitc.gov</a> at the time of the electronic filing. When
making a paper filing, parties must complete the cover sheet form on-
line at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a> and print out the cover sheet for
submission to the Office of the Secretary with the paper filing. The
party submitting the cover sheet is responsible for the accuracy of all
information contained in the cover sheet, including, but not limited
to, the security status and the investigation number, and must comply
with applicable limitations on disclosure of business proprietary
information or confidential information under Sec. 201.6 and
Sec. Sec. 206.8, 206.17, 207.3, and 207.7 of this chapter.
0
4. Revise Sec. 201.12 to read as follows:
Sec. 201.12 Requests.
Any party to a nonadjudicative investigation may request the
Commission to take particular action with respect to that
investigation. Such requests shall be filed by letter addressed to the
Secretary, shall be placed by the Secretary in the record, and shall be
served on all other parties. The Commission shall take such action or
make such response as it deems appropriate.
0
5. Amend Sec. 201.13 by revising paragraphs (d) and (f) to read as
follows:
Sec. 201.13 Conduct of nonadjudicative hearings.
* * * * *
(d) Witness list. Each person who files a notice of participation
pursuant to paragraph (c) of this section shall simultaneously file
with the Secretary a list of the witnesses that person intends to call
at the hearing.
* * * * *
(f) Supplementary material. (1) A party to the investigation may
file with the Secretary supplementary material for acceptance into the
record. The party shall file any such material with the Secretary no
later than the day of the hearing. Supplementary materials must be
marked with the name of the organization submitting it. As used herein,
the term supplementary material refers to:
(i) Additional graphic material such as charts and diagrams used to
illuminate an argument or clarify a position; and
(ii) Information not available to a party at the time its
prehearing brief was filed.
(2) Supplementary material does not include witness statements
which are addressed in Sec. Sec. 207.15 and 207.24 of this chapter.
* * * * *
0
6. Amend Sec. 201.14 by revising paragraph (b)(3) to read as follows:
Sec. 201.14 Computation of time, additional hearings, postponements,
continuances, and extensions of time.
* * * * *
(b) * * *
(3) A request that the Commission take any of the actions described
in this section shall be filed with the Secretary and served on all
parties to the investigation.
0
7. Revise Sec. 201.15 to read as follows:
Sec. 201.15 Attorneys and others practicing or appearing before the
Commission.
(a) In general. No register of attorneys who may practice before
the Commission is maintained. No separate application for admission to
practice
[[Page 234]]
before the Commission is required. Attorneys practicing before the
Commission, or desiring to so practice, must maintain a bar membership
in good standing in any State of the United States or the District of
Columbia. Persons practicing before the Commission must report any
discipline or suspension by any bar association, court, or agency. Non-
attorneys desiring to appear before the Commission may be required to
show to the satisfaction of the Commission that they are acceptable in
the capacity in which they seek to appear. Any person practicing or
appearing before the Commission, or desiring to do so, may for good
cause shown be suspended or barred from practicing or appearing before
the Commission, or may be subject to such lesser sanctions as the
Commission deems appropriate, but only after having been afforded an
opportunity to present that person's views in the matter.
(b) Former officers or employees. No former officer or employee of
the Commission who personally and substantially participated in a
matter which was pending in any manner or form in the Commission during
that person's employment shall be eligible to practice or appear before
the Commission in connection with such matter. No former officer or
employee of the Commission shall be eligible to practice or appear
before the Commission in connection with any matter which was pending
in any manner or form in the Commission during that person's employment
without first obtaining written consent from the Commission.
0
8. Amend Sec. 201.16 by:
0
a. Revising paragraphs (d) and (e); and
0
b. Removing the parenthetical authority citation at the end of the
section.
The revisions read as follows:
Sec. 201.16 Service of process and other documents.
* * * * *
(d) Additional time after service by mail. Whenever a party or
Federal agency or department has the right or is required to perform
some act or take some action within a prescribed period after the
service of a document upon it and the document is served upon it by
mail, three (3) calendar days shall be added to the prescribed period,
except that when mailing is to a person located in a foreign country,
ten (10) calendar days shall be added to the prescribed period.
Computation of additional time for Commission proceedings conducted
under section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) is set out
in Sec. 210.6 of this chapter.
(e) Additional time after service by express delivery. Whenever a
party or Federal agency or department has the right or is required to
perform some act or take some action within a prescribed period after
the service of a document upon it and the document is served by express
delivery, one (1) calendar day shall be added to the prescribed period
if the service is to a destination in the United States, and five (5)
calendar days shall be added to the prescribed period if the service is
to a destination outside the United States. ``Service by express
delivery'' refers to a method that would provide delivery by the next
business day within the United States and refers to the equivalent
express delivery service when the delivery is to a foreign location.
Computation of additional time for Commission proceedings conducted
under section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) is set out
in Sec. 210.6 of this chapter.
* * * * *
Subpart C--Availability of Information to the Public Pursuant to 5
U.S.C. 552
0
9. Amend Sec. 201.20 by revising paragraphs (d)(2)(iii), (e), and
(g)(2) to read as follows:
Sec. 201.20 Fees.
* * * * *
(d) * * *
(2) * * *
(iii) The contribution of an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' The
disclosure must contribute to the understanding of the public at large,
as opposed to the individual understanding of the requester or a narrow
segment of interested persons. A requester's identity and
qualifications--e.g., expertise in the subject area and ability and
intention to effectively convey information to the general public--
shall be considered. It will be presumed that a representative of the
news media (as defined in paragraph (j)(8) of this section) who has
access to the means of public dissemination readily will be able to
satisfy this consideration. Requests from libraries or other record
repositories (or requesters who intend merely to disseminate
information to such institutions) shall be analyzed, like those of
other requesters, to identify a particular person who represents that
that person actually will use the requested information in scholarly or
other analytic work and then disseminate it to the general public.
* * * * *
(e) Notice of anticipated fees in excess of $25.00. Where the
Secretary determines or estimates that the fees to be assessed under
this section may amount to more than $25.00, the Secretary shall notify
the requester as soon as practicable of the actual or estimated amount
of the fees, unless the requester has indicated in advance a
willingness to pay fees as high as those anticipated. (If only a
portion of the fee can be estimated readily, the Secretary shall advise
the requester that the estimated fee may be only a portion of the total
fee.) In cases where a requester has been notified that actual or
estimated fees may amount to more than $25.00, the request will be
deemed not to have been received until the requester has agreed to pay
the anticipated total fee. A notice of the requester pursuant to this
paragraph (e) shall offer the opportunity to confer with agency
personnel in order to reformulate the request to meet the requester's
needs at a lower cost.
* * * * *
(g) * * *
(2) Where a requester has previously failed to pay a records access
fee within thirty (30) days of the date of billing, the Secretary may
require the requester to pay the full amount owed, plus any applicable
interest (as provided for in paragraph (h) of this section), and to
make an advance payment of the full amount of any estimated fee before
beginning to process a new request or continuing to process a pending
request from that requester.
* * * * *
Subpart D--Safeguarding Individual Privacy Pursuant to 5 U.S.C.
552a
0
10. Amend Sec. 201.32 by revising paragraph (b) to read as follows:
Sec. 201.32 Specific exemptions.
* * * * *
(b) Pursuant to 5 U.S.C. 552a(k)(1) and (2), records contained in
the system entitled ``Freedom of Information Act and Privacy Act
Records'' have been exempted from paragraphs (c)(3), (d), (e)(1),
(e)(4)(G) through (I) and (f) of the Privacy Act. Pursuant to section
552a(k)(1) of the Privacy Act, the Commission exempts records that
contain properly classified information pertaining to national defense
or foreign policy. Application of exemption (k)(1) may be necessary to
preclude individuals' access to or amendment of such classified
information under the Privacy Act. Pursuant to section 552a(k)(2) of
the Privacy Act, and in order to protect the effectiveness of Inspector
General investigations by
[[Page 235]]
preventing individuals who may be the subject of an investigation from
obtaining access to the records and thus obtaining the opportunity to
conceal or destroy evidence or to intimidate witnesses, the Commission
exempts records insofar as they include investigatory material compiled
for law enforcement purposes. However, if any individual is denied any
right, privilege, or benefit to which that individual is otherwise
entitled under Federal law due to the maintenance of this material,
such material shall be provided to such individual except to the extent
that the disclosure of such material would reveal the identity of a
source who furnished information to the Government under an express
promise that the identity of the source would be held in confidence.
PART 206--INVESTIGATIONS RELATING TO GLOBAL AND BILATERAL SAFEGUARD
ACTIONS, MARKET DISRUPTION, TRADE DIVERSION, AND REVIEW OF RELIEF
ACTION
0
11. The authority citation for part 206 continues to read as follows:
Authority: 19 U.S.C. 1335, 2112 note, 2251-2254, 2436, 3805
note, 4051-4065, 4101, and 4551-4552.
Subpart A--General
0
12. Revise Sec. 206.2 to read as follows:
Sec. 206.2 Identification of type of petition or request.
An investigation under this part may be commenced on the basis of a
petition, request, resolution, or motion as provided for in the
statutory provisions listed in Sec. Sec. 206.1 and 206.31. Each
petition or request, as the case may be, filed by an entity
representative of a domestic industry under this part shall state
clearly on the first page thereof ``This is a [petition or request]
under section [citing the statutory provision] and Subpart [B, C, D, E,
F, or G] of part 206 of the rules of practice and procedure of the
United States International Trade Commission.'' The petition or
request, along with all exhibits, appendices, and attachments, must be
filed in accordance with Sec. 201.8 of this chapter.
0
13. Amend Sec. 206.8 by revising paragraph (d) to read as follows:
Sec. 206.8 Service, filing, and certification of documents.
* * * * *
(d) Briefs. All briefs filed in proceedings subject to this part
shall be filed in accordance with Sec. 201.8 of this chapter.
PART 207--INVESTIGATIONS OF WHETHER INJURY TO DOMESTIC INDUSTRIES
RESULTS FROM IMPORTS SOLD AT LESS THAN FAIR VALUE OR FROM
SUBSIDIZED EXPORTS TO THE UNITED STATES
0
14. The authority citation for part 207 continues to read as follows:
Authority: 19 U.S.C. 1335, 1671-1677n, 2482, 3513, 4582.
Subpart B--Preliminary Determinations
0
15. Amend Sec. 207.10 by revising paragraphs (a) and (b)(1)(i) to read
as follows:
Sec. 207.10 Filing of petition with the Commission.
(a) Filing of the petition. Any interested party who files a
petition with the administering authority pursuant to section 702(b) or
section 732(b) of the Act in a case in which a Commission determination
under title VII of the Act is required, shall file copies of the
petition and all exhibits, appendices, and attachments thereto,
pursuant to Sec. 201.8 of this chapter, with the Secretary on the same
day the petition is filed with the administering authority. If the
petition complies with the provisions of Sec. 207.11, it shall be
deemed to be properly filed on the date on which the electronic filing
of the petition is received by the Secretary, provided that, if the
petition is filed with the Secretary after 12 noon, eastern time, the
petition shall be deemed filed on the next business day.
Notwithstanding Sec. 207.11, a petitioner need not file an entry of
appearance in the investigation instituted upon the filing of its
petition, which shall be deemed an entry of appearance.
(b) * * *
(1)(i) The Secretary shall promptly notify a petitioner when,
before the establishment of a service list under Sec. 207.7(a)(4), the
Secretary approves an application under Sec. 207.7(a). A copy of the
petition including all business proprietary information shall then be
served by petitioner on those approved applicants in accord with Sec.
207.3(b) within two (2) calendar days of the time notification is made
by the Secretary.
* * * * *
0
16. Revise Sec. 207.15 to read as follows:
Sec. 207.15 Written briefs and conference.
Each party may submit to the Commission on or before a date
specified in the notice of investigation issued pursuant to Sec.
207.12 a written brief containing information and arguments pertinent
to the subject matter of the investigation. Briefs shall be signed,
shall include a table of contents, and shall contain no more than fifty
(50) pages of textual material. Any person not a party may submit a
brief written statement of information pertinent to the investigation
within the time specified and the same manner specified for the filing
of briefs. In addition, the presiding official may permit persons to
file within a specified time answers to questions or requests made by
the Commission's staff. If the presiding official deems it appropriate,
the presiding official shall hold a conference. The conference, if any,
shall be held in accordance with the procedures in Sec. 201.13 of this
chapter, except that in connection with its presentation a party may
provide written witness testimony at the conference. The party shall
file the written testimony in accordance with Sec. 201.8(d) of this
chapter no later than the date of the conference. If the written
testimony is filed on the day of the conference, the party shall also
file with the Secretary on that day nine (9) true paper copies of any
such written testimony. The presiding official may request the
appearance of witnesses, take testimony, and administer oaths.
Subpart C--Final Determinations, Short Life Cycle Products
0
17. Amend Sec. 207.23 by revising the first and second sentences to
read as follows:
Sec. 207.23 Prehearing brief.
Each party who is an interested party shall submit to the
Commission, no later than five (5) business days prior to the date of
the hearing specified in the notice of scheduling, a prehearing brief.
Prehearing briefs shall be signed and shall include a table of
contents. * * *
0
18. Amend Sec. 207.24 by revising paragraph (b) to read as follows:
Sec. 207.24 Hearing.
* * * * *
(b) Procedures. Any hearing shall be conducted after notice
published in the Federal Register. The hearing shall not be subject to
the provisions of 5 U.S.C. subchapter II, chapter 5, or to 5 U.S.C.
702. Each party shall limit its presentation at the hearing to a
summary of the information and arguments contained in its prehearing
brief, an analysis of the information and arguments contained in the
prehearing briefs described in Sec. 207.23, and information not
available at the time its prehearing brief was filed. Unless a portion
of the hearing is closed, presentations at the hearing shall not
[[Page 236]]
include business proprietary information. In connection with its
presentation, a party may provide written witness testimony at the
hearing. The party shall file the written testimony in accordance with
Sec. 201.8(d) of this chapter no later than the date of the hearing.
If the written testimony is filed on the day of the hearing, the party
shall also file with the Secretary on that day nine (9) true paper
copies of any such written testimony. In the case of testimony to be
presented at a closed session held in response to a request under
paragraph (d) of this section, confidential and non-confidential
versions shall be filed in accordance with Sec. 207.3. Any person not
a party may make a brief oral statement of information pertinent to the
investigation.
* * * * *
0
19. Revise Sec. 207.25 to read as follows:
Sec. 207.25 Posthearing briefs.
Any party may file a posthearing brief concerning the information
adduced at or after the hearing with the Secretary within a time
specified in the notice of scheduling or by the presiding official at
the hearing. No such posthearing brief shall exceed fifteen (15) pages
of textual material. In addition, the presiding official may permit
persons to file answers to questions or requests made by the Commission
at the hearing within a specified time. The Secretary shall not accept
for filing posthearing briefs or answers which do not comply with this
section.
0
20. Revise Sec. 207.28 to read as follows:
Sec. 207.28 Anticircumvention.
Prior to providing advice to the administering authority pursuant
to section 781(e)(3) of the Act, the Commission shall publish in the
Federal Register a notice that such advice is contemplated. Any person
may file one written submission concerning the matter described in the
notice no later than fourteen (14) days after publication of the
notice. The submission shall contain no more than fifty (50) pages of
textual material. The Commission shall by notice provide for additional
submissions as it deems necessary.
0
21. Amend Sec. 207.30 by revising paragraph (b) to read as follows:
Sec. 207.30 Comment on information.
* * * * *
(b) The parties shall have an opportunity to file comments on any
information disclosed to them after they have filed their posthearing
brief pursuant to Sec. 207.25. Comments shall only concern such
information, and shall not exceed fifteen (15) pages of textual
material. A comment may address the accuracy, reliability, or probative
value of such information by reference to information elsewhere in the
record, in which case the comment shall identify where in the record
such information is found. Comments containing new factual information
shall be disregarded. The date on which such comments must be filed
will be specified by the Commission when it specifies the time that
information will be disclosed pursuant to paragraph (a) of this
section. The record shall close on the date such comments are due,
except with respect to investigations subject to the provisions of
section 771(7)(G)(iii) of the Act, and with respect to changes in
bracketing of business proprietary information in the comments
permitted by Sec. 207.3(c).
Subpart F--Five-Year Reviews
Sec. 207.61 [Amended]
0
22. Amend Sec. 207.61 by removing paragraph (e).
0
23. Amend Sec. 207.62 by revising paragraph (b)(2) to read as follows:
Sec. 207.62 Rulings on adequacy and nature of Commission review.
* * * * *
(b) * * *
(2) Comments shall be submitted within the time specified in the
notice of institution. In a grouped review, only one set of comments
shall be filed per party. Comments shall not exceed fifteen (15) pages
of textual material. Comments containing new factual information shall
be disregarded.
* * * * *
0
24. Amend Sec. 207.65 by revising the first and second sentences to
read as follows:
Sec. 207.65 Prehearing briefs.
Each party to a five-year review may submit a prehearing brief to
the Commission on the date specified in the scheduling notice. A
prehearing brief shall be signed and shall include a table of contents.
* * *
0
25. Amend Sec. 207.67 by revising paragraph (a) to read as follows:
Sec. 207.67 Posthearing briefs and statements.
(a) Briefs from parties. Any party to a five-year review may file
with the Secretary a posthearing brief concerning the information
adduced at or after the hearing within a time specified in the
scheduling notice or by the presiding official at the hearing. No such
posthearing brief shall exceed fifteen (15) pages of textual material.
In addition, the presiding official may permit persons to file answers
to questions or requests made by the Commission at the hearing within a
specified time. The Secretary shall not accept for filing posthearing
briefs or answers which do not comply with this section.
* * * * *
0
26. Amend Sec. 207.68 by revising paragraph (b) to read as follows:
Sec. 207.68 Final comments on information.
* * * * *
(b) The parties shall have an opportunity to file comments on any
information disclosed to them after they have filed their posthearing
brief pursuant to Sec. 207.67. Comments shall only concern such
information, and shall not exceed fifteen (15) pages of textual
material. A comment may address the accuracy, reliability, or probative
value of such information by reference to information elsewhere in the
record, in which case the comment shall identify where in the record
such information is found. Comments containing new factual information
shall be disregarded. The date on which such comments must be filed
will be specified by the Commission when it specifies the time that
information will be disclosed pursuant to paragraph (a) of this
section. The record shall close on the date such comments are due,
except with respect to changes in bracketing of business proprietary
information in the comments permitted by Sec. 207.3(c).
PART 210--ADJUDICATION AND ENFORCEMENT
0
27. The authority citation for part 210 continues to read as follows:
Authority: 19 U.S.C. 1333, 1335, and 1337.
Subpart A--Rules of General Applicability
0
28. Amend Sec. 210.4 by revising paragraphs (b) and (d)(1)(i),
revising and republishing paragraph (f), and revising paragraphs (g)
and (h) to read as follows:
Sec. 210.4 Written submissions; representations; sanctions.
* * * * *
(b) Signature. Every pleading, written motion, and other paper of a
party or proposed party who is represented by an attorney in an
investigation or a related proceeding under this part shall be signed
by at least one attorney of record in the attorney's individual name. A
party or proposed party who is not represented by an attorney shall
sign, or a duly authorized officer or
[[Page 237]]
corporate representative of that party or proposed party shall sign,
the pleading, written motion, or other paper. Each paper shall state
the signer's address and telephone number, if any. Pleadings, written
motions, and other papers need not be under oath or accompanied by an
affidavit, except as provided in Sec. 210.12(a)(1), Sec. 210.13(b),
Sec. 210.18, Sec. 210.52(d), Sec. 210.59(b), or another section of
this part or by order of the administrative law judge or the
Commission. If a pleading, motion, or other paper is not signed, it
shall be stricken unless it is signed promptly after omission of the
signature is called to the attention of the submitter.
* * * * *
(d) * * *
(1) * * *
(i) By motion. A motion for sanctions under this section shall be
made separately from other motions or requests and shall describe the
specific conduct alleged to violate paragraph (c) of this section. It
shall be served as provided in paragraph (i) of this section, but shall
not be filed with or presented to the presiding administrative law
judge or the Commission unless, within seven (7) days after service of
the motion (or such other period as the administrative law judge or the
Commission may prescribe), the challenged paper, claim, defense,
contention, allegation, or denial is not withdrawn or appropriately
corrected. See also Sec. 210.25(a) through (c). If warranted, the
administrative law judge or the Commission may award to the party or
proposed party prevailing on the motion the reasonable expenses and
attorney's fees incurred in presenting or opposing the motion. Absent
exceptional circumstances, a law firm shall be held jointly responsible
for violations committed by its partners, associates, and employees.
* * * * *
(f) Filing of documents. (1) Written submissions that are addressed
to the Commission during an investigation or a related proceeding shall
comply with the Commission's Handbook on Filing Procedures, which is
issued by and available from the Secretary and posted on the
Commission's Electronic Document Information System website at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. Failure to comply with the requirements of this chapter
and the Handbook on Filing Procedures in the filing of a document may
result in the rejection of the document as improperly filed.
(2) All documents filed under this part shall be filed
electronically.
(3) Sections 210.8 and 210.12 set out additional requirements for a
complaint filed under Sec. 210.8. Additional requirements for a
complaint filed under Sec. 210.75 are set forth in Sec. 210.75.
(4)(i) If a complaint, a supplement or amendment to a complaint, a
motion for temporary relief, or the documentation supporting a motion
for temporary relief contains confidential business information as
defined in Sec. 201.6(a) of this chapter, the complainant shall file
nonconfidential copies of the complaint, the supplement or amendment to
the complaint, the motion for temporary relief, or the documentation
supporting the motion for temporary relief concurrently with the
requisite confidential copies, as provided in Sec. 210.8(a). A
nonconfidential copy of all exhibits, appendices, and attachments to
the document shall be filed in electronic form on one CD-ROM, DVD, or
other portable electronic media approved by the Secretary, separate
from the media used for the confidential version.
(ii)(A) Persons who file the following submissions that contain
confidential business information covered by an administrative
protective order, or that are the subject of a request for confidential
treatment, must file nonconfidential copies and serve them on the other
parties to the investigation or related proceeding within ten (10)
calendar days after filing the confidential version with the
Commission:
(1) A response to a complaint and all supplements and exhibits
thereto;
(2) All submissions relating to a motion to amend the complaint or
notice of investigation; and
(3) All submissions addressed to the Commission.
(B) Other sections of this part may require, or the Commission or
the administrative law judge may order, the filing and service of
nonconfidential copies of other kinds of confidential submissions. If
the submitter's ability to prepare a nonconfidential copy is dependent
upon receipt of the nonconfidential version of an initial
determination, or a Commission order or opinion, or a ruling by the
administrative law judge or the Commission as to whether some or all of
the information at issue is entitled to confidential treatment, the
nonconfidential copies of the submission must be filed within 10
calendar days after service of the Commission or administrative law
judge document in question. The time periods for filing specified in
this paragraph (f)(4)(ii)(B) apply unless the Commission, the
administrative law judge, or another section of this part specifically
provides otherwise.
(5) The Secretary may provide for exceptions and modifications to
the filing requirements set out in this chapter. A person seeking an
exception should consult the Handbook on Filing Procedures.
(6) Documents shall be filed with the Office of the Secretary
through the Commission's Electronic Document Information System (EDIS)
website at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. If a paper filing is required or
authorized under paragraph (f)(5) of this section, documents shall be
filed at the office of the Secretary in Washington, DC. Such documents,
if properly filed within the hours of operation specified in Sec.
201.3(c) of this chapter, will be deemed to be filed on the date on
which they are actually received by the Commission.
(7) Each document filed with the Commission for the purpose of
initiating any investigation shall be considered properly filed if it
conforms with the pertinent rules prescribed in this chapter.
Substantial compliance with the pertinent rules may be accepted by the
Commission provided good and sufficient reason is stated in the
document for inability to comply fully with the pertinent rules.
(8) During any period in which the Commission is closed, deadlines
for filing documents electronically and by other means are extended so
that documents are due on the first business day after the end of the
closure.
(g) Cover sheet. For documents that are filed electronically,
parties must complete the cover sheet form for such filing on-line at
<a href="https://edis.usitc.gov">https://edis.usitc.gov</a> at the time of the electronic filing. When
making a paper filing, parties must complete the cover sheet form
online at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a> and print out the cover sheet for
submission to the Office of the Secretary with the paper filing. The
party submitting the cover sheet is responsible for the accuracy of all
information contained in the cover sheet, including, but not limited
to, the security status and the investigation number, and must comply
with applicable limitations on disclosure of confidential information
under Sec. 210.5.
(h) Specifications. (1) Each document filed under this chapter
shall be double-spaced, clear and legible, except that a document of
two pages or less in length need not be double-spaced. All submissions
shall be in letter-sized format (8.5 x 11 inches), except copies of
documents prepared for another agency or a court (e.g., patent file
wrappers or pleadings papers). Typed matter shall not exceed 6.5 x 9.5
inches using 11-point or larger type and shall be double-spaced between
each line of text using the standard of 6 lines of type
[[Page 238]]
per inch. Text and footnotes shall be in the same size type. Quotations
more than two lines long in the text or footnotes may be indented and
single-spaced. Headings and footnotes may be single-spaced.
(2) The presiding administrative law judge may impose any
specifications the administrative law judge deems appropriate for
submissions that are addressed to the administrative law judge.
* * * * *
0
29. Amend Sec. 210.7 by revising paragraph (a)(2) to read as follows:
Sec. 210.7 Service of process and other documents; publication of
notices.
(a) * * *
(2) The service of all initial determinations as defined in Sec.
210.42, all cease and desist orders as set forth in Sec. 210.50(a)(1),
all show cause orders issued under Sec. 210.16(b)(1)(i), and all
documents containing confidential business information as defined in
Sec. 201.6(a) of this chapter, issued by or on behalf of the
Commission or the administrative law judge on a private party, shall be
effected by serving a copy of the document by express delivery, as
defined in Sec. 201.16(e) of this chapter, on the person to be served,
on a member of the partnership to be served, on the president,
secretary, other executive officer, or member of the board of directors
of the corporation, association, or other organization to be served,
or, if an attorney represents a person or entity to be served in
connection with an investigation under part 210, by serving a copy by
express delivery on such attorney.
* * * * *
Subpart B--Commencement of Preinstitution Proceedings and
Investigations
0
30. Amend Sec. 210.8 by revising the introductory text and paragraphs
(a), (b) introductory text, (c)(1) introductory text, and (c)(2) and
adding paragraph (c)(3) to read as follows:
Sec. 210.8 Commencement of preinstitution proceedings.
A preinstitution proceeding is commenced by filing with the
Secretary a signed complaint.
(a) Filing and service copies. (1)(i) A complaint, enforcement
complaint, supplement, or amendment under Sec. 210.14(a) thereto,
filed under this section shall be filed with the Secretary pursuant to
Sec. 210.4. By close of business the next business day following
official receipt of the complaint, complainant must deliver copies to
the Secretary for service by the Secretary as follows:
(A) For each proposed respondent, one (1) true paper copy of the
nonconfidential version of the complaint, one (1) true paper copy of
the confidential version of the complaint, if any, and one (1) true
paper copy of any supplements or amendments under Sec. 210.14(a),
along with one (1) true copy of the nonconfidential exhibits and one
(1) true copy of the confidential exhibits in electronic form on a CD
ROM, DVD, or other portable electronic media approved by the Secretary;
and
(B) For the government of the foreign country in which each
proposed respondent is located as indicated in the complaint, one (1)
true paper copy of the nonconfidential version of the complaint.
(ii) Failure to timely provide service copies may result in a delay
or denial of institution of an investigation under Sec. 210.10 for
failure to properly file the complaint.
(2) If the complaint, enforcement complaint, supplement, or
amendment under Sec. 210.14(a) thereto, is seeking temporary relief,
the complainant must also by close of business the next business day
following official receipt of the complaint, deliver copies to the
Secretary for service as follows: for each proposed respondent, one (1)
true paper copy of the nonconfidential version of the motion and one
(1) true paper copy of the confidential version of the motion along
with one (1) true copy of the nonconfidential exhibits and one (1) true
copy of the confidential exhibits filed with the motion in electronic
form on a CD ROM, DVD, or other portable electronic media approved by
the Secretary.
(b) Provide specific information regarding the public interest.
Complainant must file, concurrently with the complaint, a separate
statement of public interest, not to exceed five (5) pages, inclusive
of attachments, addressing how issuance of the requested relief, i.e.,
a general exclusion order, a limited exclusion order, and/or a cease
and desist order, in this investigation could affect the public health
and welfare in the United States, competitive conditions in the United
States economy, the production of like or directly competitive articles
in the United States, or United States consumers. If the complainant
files a confidential version of its submission on public interest, it
shall file a public version of the submission no later than one
business day after the deadline for filing the submission. In
particular, the submission should:
* * * * *
(c) * * *
(1) When a complaint is filed, the Secretary to the Commission will
publish a notice in the Federal Register inviting comments from the
public, interested government agencies, and proposed respondents on any
issues arising from the complaint and potential exclusion and/or cease
and desist orders. In response to the notice, members of the public,
interested government agencies, and proposed respondents may provide
specific information regarding the public interest and other issues in
a written submission not to exceed five (5) pages, inclusive of
attachments, to the Secretary to the Commission within eight (8)
calendar days of publication of notice of the filing of a complaint.
Members of the public, interested government agencies, and proposed
respondents may address how issuance of the requested exclusion order
and/or a cease and desist order in this investigation could affect the
public health and welfare in the United States, competitive conditions
in the United States economy, the production of like or directly
competitive articles in the United States, or United States consumers.
If a member of the public, interested government agency, or proposed
respondent files a confidential version of its submission, it shall
file a public version of the submission with the Secretary to the
Commission and provide a copy of the public version of the submission
to complainant no later than one (1) business day after the deadline
for filing the submission. Submissions addressing the public interest
should:
* * * * *
(2) Complainant may file a reply to any submissions received under
paragraph (c)(1) of this section not to exceed five (5) pages,
inclusive of attachments, to the Secretary to the Commission within
three (3) calendar days following the filing of the submissions.
Notwithstanding Sec. 201.14(a) of this chapter, computation of the
reply time period will begin with the first business day following the
day on which submissions under paragraph (c)(1) are due, but will
include subsequent Saturdays, Sundays, and Federal legal holidays. If
the complainant files a confidential version of its submission, it
shall file a public version of the submission no later than one (1)
business day after the deadline for filing the submission.
[[Page 239]]
(3) No further submissions will be accepted unless requested by the
Commission.
* * * * *
0
31. Amend Sec. 210.10 by revising paragraphs (a)(1)(iii) and (iv) and
adding paragraphs (a)(1)(v) and (a)(7) to read as follows:
Sec. 210.10 Institution of investigation.
(a)(1) * * *
(iii) The complainant requests that the Commission postpone the
determination on whether to institute an investigation;
(iv) The complainant withdraws the complaint; or
(v) The complaint or any exhibits or attachments thereto contain
excessive designations of confidentiality that are not warranted under
Sec. 201.6(a) of this chapter and Sec. 210.5.
* * * * *
(7) If the Commission determines that the complaint or any exhibits
or attachments thereto contain excessive designations of
confidentiality that are not warranted under Sec. 201.6(a) of this
chapter and Sec. 210.5, the Commission may require the complainant to
file new nonconfidential versions of the aforesaid submissions in
accordance with Sec. 210.4(f)(7)(i) and may determine that the thirty
(30) day period for deciding whether to institute an investigation
shall begin to run anew from the date the new nonconfidential versions
are filed with the Commission in accordance with Sec. 210.4(f)(7)(i).
* * * * *
0
32. Amend Sec. 210.11 by:
0
a. Revising paragraphs (a)(1) and (2);
0
b. Removing paragraph (a)(3); and
0
c. Redesignating paragraph (a)(4) as paragraph (a)(3).
The revisions read as follows:
Sec. 210.11 Service of complaint and notice of investigation upon
institution.
(a)(1) Upon institution of an investigation, the Commission shall
serve:
(i) Copies of the nonconfidential version of the complaint, the
nonconfidential exhibits, and the notice of investigation upon each
respondent; and
(ii) Copies of the nonconfidential version of the complaint and the
notice of investigation upon the embassy in Washington, DC, of the
country in which each proposed respondent is located as indicated in
the complaint.
(2) If the Commission institutes temporary relief proceedings, upon
institution of an investigation, the Commission shall also serve copies
of the nonconfidential version of the motion for temporary relief, the
nonconfidential version of the complaint, and the notice of
investigation upon each respondent.
* * * * *
Subpart C--Pleadings
0
33. Revise and republish Sec. 210.12 to read as follows:
Sec. 210.12 The complaint.
(a) Contents of the complaint. In addition to conforming with the
requirements of Sec. Sec. 210.4 and 210.5, the complaint shall--
(1) Be under oath and signed by the complainant or the
complainant's duly authorized officer, attorney, or corporate
representative, with the name, address, email address, and telephone
number of the complainant and any such officer, attorney, or corporate
representative given on the first page of the complaint, and include a
statement attesting to the representations in Sec. 210.4(c)(1) through
(3).
(2) Include a statement of the facts constituting the alleged
unfair methods of competition and unfair acts.
(3) Describe specific instances of alleged unlawful importations or
sales, and shall provide the Harmonized Tariff Schedule of the United
States item number(s) for such importations.
(4) State the name, address, and nature of the business (when such
nature is known) of each person alleged to be violating section 337 of
the Tariff Act of 1930.
(5) Include a statement as to whether the alleged unfair methods of
competition and unfair acts, or the subject matter thereof, are or have
been the subject of any court or agency litigation, or of any
arbitration, and, if so, include a brief summary of such proceeding.
(6)(i) If the complaint alleges a violation of section 337 based on
infringement of a U.S. patent, or a federally registered copyright,
trademark, mask work, or vessel hull design, under section
337(a)(1)(B), (C), (D), or (E) of the Tariff Act of 1930, include a
statement as to whether an alleged domestic industry exists or is in
the process of being established as defined in section 337(a)(2).
Include the following information with the statement:
(A) For complaints alleging that a domestic industry exists, a
detailed description of the relevant domestic industry as defined in
section 337(a)(3) that allegedly exists including facts showing
significant/substantial investment and employment, and also including
the relevant operations of any licensees;
(B) For complaints alleging a domestic industry that is in the
process of being established, a detailed description of the relevant
domestic industry that is in the process of being established including
facts showing that complainant is actively engaged in the steps leading
to the exploitation of its intellectual property rights and that there
is a significant likelihood that an industry will be established in the
future, and also including the relevant operations of any licensees;
and
(C) Relevant information that should be included in the statements
pursuant to paragraphs (a)(6)(i)(A) and (B) of this section includes
but is not limited to:
(1) Significant investment in plant and equipment;
(2) Significant employment of labor or capital; or
(3) Substantial investment in the exploitation of the subject
patent, copyright, trademark, mask work, or vessel hull design,
including engineering, research and development, or licensing;
(ii) If the complaint alleges a violation of section 337 of the
Tariff Act of 1930 based on unfair methods of competition and unfair
acts in the importation or sale of articles in the United States that
have the threat or effect of destroying or substantially injuring an
industry in the United States or preventing the establishment of such
an industry under section 337(a)(1)(A)(i) or (ii), include a detailed
statement as to whether an alleged domestic industry exists or is in
the process of being established (i.e., for the latter, facts showing
that there is a significant likelihood that an industry will be
established in the future), and include a detailed description of the
domestic industry affected, including the relevant operations of any
licensees; or
(iii) If the complaint alleges a violation of section 337 of the
Tariff Act of 1930 based on unfair methods of competition or unfair
acts that have the threat or effect of restraining or monopolizing
trade and commerce in the United States under section
337(a)(1)(A)(iii), include a description of the trade and commerce
affected.
(7) Include a description of the complainant's business and its
interests in the relevant domestic industry or the relevant trade and
commerce. For every intellectual property based complaint (regardless
of the type of intellectual property right involved), include a showing
that at least one complainant is the owner or exclusive licensee of the
subject intellectual property.
[[Page 240]]
(8) If the alleged violation involves an unfair method of
competition or an unfair act other than those listed in paragraph
(a)(6)(i) of this section:
(i) Include in the statement of facts required by paragraph (a)(2)
of this section factual allegations that would show the existence of
the cause of action underlying the unfair act or method of competition;
and
(ii) State a specific theory, and elements thereof, and provide
supporting factual allegations concerning the existence of a threat or
effect to destroy or substantially injure a domestic industry, to
prevent the establishment of a domestic industry, or to restrain or
monopolize trade and commerce in the United States. The information
that should ordinarily be provided includes the volume and trend of
production, sales, and inventories of the involved domestic article; a
description of the facilities and number and type of workers employed
in the production of the involved domestic article; profit-and-loss
information covering overall operations and operations concerning the
involved domestic article; pricing information with respect to the
involved domestic article; when available, volume and sales of imports;
and other pertinent data.
(9) Include, when a complaint is based upon the infringement of a
valid and enforceable U.S. patent--
(i) The identification of each U.S. patent and a certified copy
thereof (a legible copy of each such patent will suffice for each
required copy of the complaint);
(ii) The identification of the ownership of each involved U.S.
patent and a certified copy of each assignment of each such patent (a
legible copy thereof will suffice for each required copy of the
complaint);
(iii) The identification of each licensee under each involved U.S.
patent;
(iv) A copy of each license agreement (if any) for each involved
U.S. patent that complainant relies upon to establish that it can bring
pursuant to paragraph (a)(7) of this section the complaint or to
support its contention that a domestic industry as defined in section
337(a)(3) exists or is in the process of being established as a result
of the domestic activities of one or more licensees;
(v) When known, a list of each foreign patent, each foreign or
domestic patent application (not already issued as a patent), and each
foreign or domestic patent application that has been denied, abandoned
or withdrawn, corresponding to each involved U.S. patent, with an
indication of the prosecution status of each such patent application;
(vi) A nontechnical description of the invention of each involved
U.S. patent;
(vii) A reference to the specific claims in each involved U.S.
patent that allegedly cover the article imported or sold by each person
named as violating section 337 of the Tariff Act of 1930, or the
process under which such article was produced;
(viii) A showing that each person named as violating section 337 of
the Tariff Act of 1930 is importing or selling the article covered by,
or produced under the involved process covered by, the specific,
asserted claims of each involved U.S. patent. The complainant shall
make such showing by appropriate allegations, and when practicable, by
a chart that applies each asserted independent claim of each involved
U.S. patent to a representative involved article of each person named
as violating section 337 of the Tariff Act or to the process under
which such article was produced;
(ix) A showing that an industry in the United States, relating to
the articles protected by the patent exists or is in the process of
being established. The complainant shall make such showing by
appropriate allegations, and when practicable, by a chart that applies
an exemplary claim of each involved U.S. patent to a representative
involved domestic article or to the process under which such article
was produced;
(x) Drawings, photographs, or other visual representations of both
the involved domestic article or process and the involved article of
each person named as violating section 337 of the Tariff Act of 1930,
or of the process utilized in producing the imported article, and, when
a chart is furnished under paragraphs (a)(9)(viii) and (ix) of this
section, the parts of such drawings, photographs, or other visual
representations should be labeled so that they can be read in
conjunction with such chart; and
(xi) The expiration date of each patent asserted.
(10) Include, when a complaint is based upon the infringement of a
federally registered copyright, trademark, mask work, or vessel hull
design--
(i) The identification of each licensee under each involved
copyright, trademark, mask work, and vessel hull design; and
(ii) A copy of each license agreement (if any) that complainant
relies upon to establish that it can bring pursuant to paragraph (a)(7)
of this section the complaint or to support its contention that a
domestic industry as defined in section 337(a)(3) exists or is in the
process of being established as a result of the domestic activities of
one or more licensees.
(11) Contain a request for relief, including a statement as to
whether a limited exclusion order, general exclusion order, and/or
cease and desist orders are being requested, and if temporary relief is
requested under section 337(e) and/or (f) of the Tariff Act of 1930, a
motion for such relief, which shall either accompany the complaint as
provided in Sec. 210.52(a) or follow the complaint as provided in
Sec. 210.53(a). Complaints requesting issuance of a general exclusion
order shall include a statement of factual allegations that would
satisfy the requirements of section 337(d)(2), including, for example:
(i) Factual allegations showing that a general exclusion order is
necessary to prevent circumvention of a limited exclusion order; or
(ii) Factual allegations showing a pattern of violation of section
337 and difficulty in identifying the source of infringing products.
(12) Contain a clear statement in plain English of the category of
products accused. For example, the caption of the investigation might
refer to ``certain electronic devices,'' but the complaint would
provide a further statement to identify the type of products involved
in plain English such as mobile devices, tablets, or computers.
(b) Submissions of articles as exhibits. At the time the complaint
is filed, if practicable, the complainant shall submit both the
domestic article and exemplary imported articles that are the subject
of the complaint.
(c) Additional material to accompany each patent-based complaint.
There shall accompany the submission of each complaint based upon the
alleged unauthorized importation or sale of an article covered by, or
produced under a process covered by, the claims of a valid U.S. patent
the following:
(1) One (1) certified copy of the U.S. Patent and Trademark Office
prosecution history for each involved U.S. patent, plus three
additional copies thereof; and
(2) One (1) copy of the prosecution histories of any priority
applications for each involved U.S. patent.
(d) Additional material to accompany each registered trademark-
based complaint. There shall accompany the submission of each complaint
based upon the alleged unauthorized importation or sale of an article
covered by a federally registered trademark, one certified copy of the
Federal registration
[[Page 241]]
and three additional copies, and one certified copy of the prosecution
history for each federally registered trademark.
(e) Additional material to accompany each complaint based on a non-
federally registered trademark. There shall accompany the submission of
each complaint based upon the alleged unauthorized importation or sale
of an article covered by a non-federally registered trademark the
following:
(1) A detailed and specific description of the alleged trademark;
(2) Information concerning prior attempts to register the alleged
trademark; and
(3) Information on the status of current attempts to register the
alleged trademark.
(f) Additional material to accompany each copyright-based
complaint. There shall accompany the submission of each complaint based
upon the alleged unauthorized importation or sale of an article covered
by a copyright one certified copy of the Federal registration and three
additional copies.
(g) Additional material to accompany each registered mask work-
based complaint. There shall accompany the submission of each complaint
based upon the alleged unauthorized importation or sale of a
semiconductor chip in a manner that constitutes infringement of a
federally registered mask work, one certified copy of the Federal
registration and three additional copies.
(h) Additional material to accompany each vessel hull design-based
complaint. There shall accompany the submission of each complaint based
upon the alleged unauthorized importation or sale of an article covered
by a vessel hull design, one certified copy of the Federal registration
(including all deposited drawings, photographs, or other pictorial
representations of the design), and three additional copies.
(i) Initial disclosures. Complainant shall serve on each respondent
represented by counsel who has agreed to be bound by the terms of the
protective order one copy of each document submitted with the complaint
pursuant to paragraphs (c) through (h) of this section within five days
of service of a notice of appearance and agreement to be bound by the
terms of the protective order.
(j) Duty to supplement complaint. Complainant shall supplement the
complaint prior to institution of an investigation if complainant
obtains information upon the basis of which complainant knows or
reasonably should know that a material legal or factual assertion in
the complaint is false or misleading.
0
34. Amend Sec. 210.13 by revising the first sentence of paragraph (b)
introductory text to read as follows:
Sec. 210.13 The response.
* * * * *
(b) * * * In addition to conforming to the requirements of
Sec. Sec. 210.4 and 210.5, each response shall be under oath and
signed by respondent or by respondent's duly authorized officer,
attorney, or corporate representative with the name, address, email
address, and telephone number of the respondent and any such officer,
attorney, or corporate representative given on the first page of the
response. * * *
* * * * *
0
35. Amend Sec. 210.14 by:
0
a. Revising the section heading;
0
b. Adding introductory text; and
0
c. Revising paragraphs (a), (b)(1), and (g).
The revisions and addition read as follows:
Sec. 210.14 Amendments to pleadings and notice; supplemental
submissions; counterclaims; severance and consolidation of
investigations.
Amended complaints, exhibits, and supplements thereto, filed under
this section shall be filed with the Secretary pursuant to Sec. 210.4.
(a) Preinstitution amendments. The complaint may be amended at any
time prior to the institution of the investigation. Any amendment that
introduces an additional unfair act or additional respondent shall be
in the form of an amended complaint that complies with the requirements
of Sec. 210.12(a). If, prior to institution, the complainant seeks to
amend a complaint to add a respondent or to assert an additional unfair
act not in the original complaint, including asserting a new patent or
patent claim, then the complaint shall be treated as if it had been
filed on the date the amendment is filed for purposes of Sec. Sec.
210.8(b) and (c), 210.9, and 210.10(a).
(b) * * *
(1) After an investigation has been instituted, the complaint or
notice of investigation may be amended only by leave of the Commission
for good cause shown and upon such conditions as are necessary to avoid
prejudicing the public interest and the rights of the parties to the
investigation. A motion for amendment must be made to the presiding
administrative law judge. Complainant shall serve one (1) copy of any
motion to amend the complaint and notice of investigation to name an
additional respondent after institution on the proposed respondent and
on all other respondents. If the proposed amendment of the complaint
would introduce an additional unfair act or an additional respondent,
the motion shall be accompanied by a proposed amended complaint that
complies with the requirements of Sec. 210.12(a). If the proposed
amendment of the complaint would require amending the notice of
investigation, the presiding administrative law judge may grant the
motion only by filing with the Commission an initial determination. All
other dispositions of such motions shall be by order. Respondents shall
have ten (10) calendar days from the date of service of an order
granting the motion or, in cases where the amendment requires amending
the notice of investigation, a Commission determination affirming or
not reviewing an initial determination granting the motion, to file a
written response to the amended complaint and/or notice of
investigation. The contents of such response shall be governed by Sec.
210.13(b).
(i) If the amended complaint and notice of investigation name an
additional respondent, the Commission shall serve one (1) copy of the
amended complaint and notice of investigation on the additional
respondent and the embassies of the relevant foreign countries, in the
manner specified in Sec. 201.16(b) of this chapter, after a Commission
determination affirming or not reviewing an initial determination
granting the motion.
(ii) By close of business the next business day following official
receipt of the amended complaint, Complainant must deliver copies to
the Secretary for service by the Secretary as follows:
(A) For each proposed additional respondent, one (1) true paper
copy of the nonconfidential version of the amended complaint and one
(1) true paper copy of the confidential version of the amended
complaint, if any, along with one (1) true copy of the nonconfidential
exhibits and one (1) true copy of the confidential exhibits in
electronic form on a CD ROM, DVD, or other portable electronic media
approved by the Secretary; and
(B) For the government of the foreign country in which each
proposed respondent is located as indicated in the amended complaint,
one (1) true paper copy of the nonconfidential version of the complaint
shall be filed.
(iii) Unless otherwise ordered in the notice of investigation or by
the presiding administrative law judge, an additional respondent named
in the amended complaint and notice of investigation shall have twenty
(20)
[[Page 242]]
days from the date of service of the amended complaint and notice of
investigation to file a written response in the manner specified in
Sec. 210.13.
* * * * *
(g) Consolidation of investigations. The Commission may consolidate
two or more investigations. If the investigations are currently before
the same presiding administrative law judge, the administrative law
judge may consolidate the investigations. If the investigations are not
currently before the same presiding administrative law judge, the chief
administrative law judge may consolidate the investigations and assign
an administrative law judge to preside over the consolidated
investigations. The investigation number in the caption of the
consolidated investigation will include the investigation numbers of
the investigations being consolidated. The investigation number in
which the matter will be proceeding (the lead investigation) will be
the first investigation number named in the consolidated caption.
* * * * *
Subpart D--Motions
0
36. Amend Sec. 210.15 by revising paragraphs (a)(2) and (c) to read as
follows:
Sec. 210.15 Motions.
(a) * * *
(2) When an investigation or related proceeding is before the
Commission, all motions shall be addressed to the Chair of the
Commission. All such motions shall be filed with the Secretary and
shall be served upon each party. Motions may not be filed with the
Commission during preinstitution proceedings except for motions for
temporary relief pursuant to Sec. 210.53.
* * * * *
(c) Responses to motions. Within ten (10) days after service of any
written motions, or within such longer or shorter time as may be
designated by the administrative law judge or the Commission, a
nonmoving party, or in the instance of a motion to amend the complaint
or notice of investigation to name an additional respondent after
institution, the proposed respondent, shall respond or may be deemed to
have consented to the granting of the relief asked for in the motion.
The moving party shall have no right to reply, except as permitted by
the administrative law judge or the Commission.
* * * * *
0
37. Amend Sec. 210.16 by revising paragraphs (b)(1)(i) and (b)(2) and
(3) to read as follows:
Sec. 210.16 Default.
* * * * *
(b) * * *
(1)(i) If a respondent has failed to respond or appear in the
manner described in paragraph (a)(1) of this section, a party may file
a motion for, or the administrative law judge may issue sua sponte, an
order directing the respondent to show cause why it should not be found
in default.
* * * * *
(2) Any party may file a motion for issuance of, or the
administrative law judge may issue sua sponte, an initial determination
finding a party in default for abuse of process under Sec. 210.4(c) or
failure to make or cooperate in discovery under Sec. 210.33. A motion
for a finding of default as a sanction for abuse of process or failure
to make or cooperate in discovery shall be granted by initial
determination or denied by order.
(3)(i) A proposed respondent may file a notice of intent to default
under this section with the administrative law judge at any time before
the issuance of the final initial determination.
(ii) Upon the filing of a notice of intent to default under
paragraph (b)(3)(i) of this section, the administrative law judge shall
issue an initial determination finding the respondent in default
without first issuing the show-cause order of paragraph (b)(1)(i) of
this section. Such default will be treated in the same manner as any
other default under this section.
* * * * *
Sec. 210.17 [Amended]
0
38. Amend Sec. 210.17 by removing paragraph (h) and designating the
undesignated paragraph at the end of the section as paragraph (h).
0
39. Amend Sec. 210.18 by revising paragraph (b) to read as follows:
Sec. 210.18 Summary determinations.
* * * * *
(b) Opposing affidavits; oral argument; time and basis for
determination. Any nonmoving party may file opposing affidavits within
ten (10) days after service of the motion for summary determination. At
the discretion of the administrative law judge or at the request of any
party, the administrative law judge may set the matter for oral
argument and call for the submission of briefs or memoranda. The
determination sought by the moving party shall be rendered if pleadings
and any depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a summary determination as a matter of law.
* * * * *
0
40. Amend Sec. 210.20 by revising paragraph (a) to read as follows:
Sec. 210.20 Declassification of confidential information.
(a) Any party may move to declassify documents (or portions
thereof) that have been designated confidential by the submitter but
that do not satisfy the confidentiality criteria set forth in Sec.
201.6(a) of this chapter. All such motions, whether brought at any time
during the investigation or after conclusion of the investigation shall
be addressed to and ruled upon by the presiding administrative law
judge, or if the investigation is not before a presiding administrative
law judge, by the chief administrative law judge or such administrative
law judge as the chief administrative law judge may designate.
* * * * *
0
41. Amend Sec. 210.25 by revising paragraphs (d) and (f) to read as
follows:
Sec. 210.25 Sanctions.
* * * * *
(d) If an administrative law judge's order concerning sanctions is
issued before the initial determination concerning violation of section
337 of the Tariff Act of 1930 or termination of the investigation, it
may be appealed under Sec. 210.24(b)(1) with leave from the
administrative law judge, if the requirements of that section are
satisfied. If the order is issued concurrently with the initial
determination, or if the administrative law judge denies leave to
appeal a previously issued order under Sec. 210.24(b)(1), the order
may be appealed by filing a petition meeting the requirements of Sec.
210.43(b) within the same time period specified in Sec. 210.43(a) in
which a petition for review of the initial determination terminating
the investigation may be filed. The Commission will determine whether
to adopt the order after disposition of the initial determination
concerning violation of section 337 or termination of the
investigation.
* * * * *
(f) If a motion for sanctions is filed with the administrative law
judge during an investigation, the administrative law judge may defer
[[Page 243]]
adjudication of the motion until after the administrative law judge has
issued a final initial determination concerning violation of section
337 of the Tariff Act of 1930 or termination of investigation. If the
administrative law judge defers adjudication in such a manner, the
administrative law judge's ruling on the motion for sanctions must be
in the form of a recommended determination and shall be issued no later
than thirty (30) days after issuance of the Commission's final
determination on violation of section 337 or termination of the
investigation. Parties may submit comments on the recommended
determination within ten (10) days from the service of the recommended
determination. Parties may submit responses thereto within five (5)
business days from service of any comments.
Subpart E--Discovery and Compulsory Process
0
42. Amend Sec. 210.27 by:
0
a. Revising and republishing paragraph (b);
0
b. Revising paragraph (e)(2)(ii); and
0
c. Redesignating paragraph (e)(5)(iii) as paragraph (e)(5)(ii)(C).
The revisions read as follows:
Sec. 210.27 General provisions governing discovery.
* * * * *
(b) Scope of discovery. Regarding the scope of discovery for the
temporary relief phase of an investigation, see Sec. 210.61 and the
limitations of paragraph (d) of this section. For the permanent relief
phase of an investigation, unless otherwise ordered by the
administrative law judge, a party may obtain discovery, subject to the
limitations of paragraph (d) of this section, regarding any matter, not
privileged, that is proportional to the needs of the investigation and
relevant to the following:
(1) The claim or defense of the party seeking discovery or to the
claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any books,
documents, or other tangible things;
(2) The identity and location of persons having knowledge of any
discoverable matter;
(3) The appropriate remedy for a violation of section 337 of the
Tariff Act of 1930 (see Sec. 210.42(a)(1)(ii)(A)); or
(4) The appropriate bond for the respondents, under section
337(j)(3) of the Tariff Act of 1930, during Presidential review of the
remedial order (if any) issued by the Commission (see Sec.
210.42(a)(1)(ii)(B)).
* * * * *
(e) * * *
(2) * * *
(ii) If there exists a disagreement about the basis for the claim
of privilege or protection as attorney work product, within seven (7)
days of service of the notice, the claimant and the parties shall meet
and confer in good faith to resolve the claim of privilege or
protection. If, after meeting and conferring there continues to be a
disagreement, within five (5) days after the conference, a party may
file a motion to compel the production of the document and may, in the
motion to compel, use a description of the document from the notice
produced under this paragraph (e)(2). In connection with the motion to
compel, the party may submit the document in camera for consideration
by the administrative law judge. The person that produced the document
must preserve the document until the claim of privilege or protection
is resolved.
* * * * *
0
43. Amend Sec. 210.28 by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (b) through (i) as paragraphs (c) through
(j);
0
c. Adding new paragraph (b); and
0
d. Revising newly redesignated paragraph (d), the last sentence of
newly redesignated paragraph (e), and newly redesignated paragraphs (g)
and (i)(4).
The revisions and addition read as follows:
Sec. 210.28 Depositions.
(a) When depositions may be taken. Following publication in the
Federal Register of a Commission notice instituting the investigation,
any party may take the testimony of any person, including a party, by
deposition upon oral examination or written questions. The presiding
administrative law judge will determine the permissible dates or
deadlines for taking such depositions. Unless stipulated otherwise by
the parties, the complainants as a group and the respondents as a group
may each take a maximum of twenty (20) fact depositions. If the Office
of Unfair Import Investigations is a party, the Commission
investigative attorney may take a maximum of ten (10) fact depositions
and is permitted to participate in all depositions taken by any parties
in the investigation. The presiding administrative law judge may set
the maximum number of depositions permitted to be taken by an
intervenor. Depositions of party witnesses and non-party witnesses
alike shall count towards the limits on fact depositions. A notice for
a corporation to designate deponents shall count as only one deposition
and shall include all corporate representatives so designated to
respond. The presiding administrative law judge may increase or limit
the number of depositions on written motion for good cause shown.
(b) Duration. Unless otherwise ordered by the presiding
administrative law judge or stipulated by the parties, including, when
participating in the investigation, the Commission investigative
attorney, a deposition is limited to one (1) day of seven (7) hours.
The presiding administrative law judge must allow additional time, in a
manner consistent with Sec. 210.27(b) through (d), if needed to fairly
examine the deponent or if the deponent, another person, or any other
circumstance impedes or delays the examination.
* * * * *
(d) Notice of examination. A party desiring to take the deposition
of a person shall give notice in writing to every other party to the
investigation. The administrative law judge shall determine the
appropriate period for providing such notice. A party upon whom a
notice of deposition is served may make objections to a notice of
deposition and state the reasons therefor within ten (10) days of
service of the notice of deposition. The notice shall state the time
and place for taking the deposition and the name and address of each
person to be examined, if known, and, if the name is not known, a
general description sufficient to identify the person or the particular
class or group to which the person belongs. A notice may provide for
the taking of testimony by telephone or videoconference, but the
administrative law judge may, on motion of any party, require that the
deposition be taken in the presence of the deponent. The parties may
stipulate in writing, or the administrative law judge may upon motion
order, that the testimony at a deposition be recorded by other than
stenographic means. If a subpoena duces tecum is to be served on the
person to be examined, the designation of the materials to be produced
as set forth in the subpoena shall be attached to or included in the
notice.
(e) * * * See paragraph (j) of this section concerning the effect
of errors and irregularities in depositions.
* * * * *
(g) Service of deposition transcripts on the Commission staff. The
party taking the deposition shall promptly serve one copy of the
deposition transcript and exhibits on the Commission investigative
attorney.
* * * * *
(i) * * *
[[Page 244]]
(4) If only part of a deposition is offered in evidence by a party,
an adverse party may require the offering party to introduce any other
part that ought in fairness to be considered with the part introduced,
and any party may introduce any other parts.
* * * * *
0
44. Amend Sec. 210.30 by revising paragraphs (a)(1) and (b)(2) to read
as follows:
Sec. 210.30 Requests for production of documents and things and entry
upon land.
(a) * * *
(1) To produce and permit the party making the request, or someone
acting on that party's behalf, to inspect and copy any designated
documents (including writings, drawings, graphs, charts, photographs,
and other data compilations from which information can be obtained), or
to inspect and copy, test, or sample any tangible things that are in
the possession, custody, or control of the party upon whom the request
is served; or
* * * * *
(b) * * *
(2) The party upon whom the request is served shall serve a written
response within ten (10) days or the time specified by the
administrative law judge. The response shall state, with respect to
each item or category, that inspection and related activities will be
permitted as requested, unless the request is objected to, in which
event the reasons for objection shall be stated. An objection must
state whether any responsive materials are being withheld on the basis
of that objection. An objection to part of a request must specify the
part and permit inspection of the rest. The party submitting the
request may move for an order under Sec. 210.33(a) with respect to any
objection to or other failure to respond to the request or any part
thereof, or any failure to permit inspection as requested. A party who
produces documents for inspection shall produce them as they are kept
in the usual course of business or shall organize and label them to
correspond to the categories in the request.
* * * * *
0
45. Amend Sec. 210.31 by revising paragraphs (b) through (d) to read
as follows:
Sec. 210.31 Requests for admission.
* * * * *
(b) Answers and objections to requests for admissions. A party
answering a request for admission shall repeat the request for
admission immediately preceding the answer to the request. The matter
may be deemed admitted unless, within ten (10) days or the period
specified by the administrative law judge, the party to whom the
request is directed serves upon the party requesting the admission a
sworn written answer or objection addressed to the matter. If objection
is made, the reason therefor shall be stated. The answer shall
specifically deny the matter or set forth in detail the reasons why the
answering party cannot truthfully admit or deny the matter. A denial
shall fairly meet the substance of the requested admission, and when
good faith requires that a party qualify an answer or deny only a part
of the matter as to which an admission is requested, the party shall
specify so much of it as is true and qualify or deny the remainder. An
answering party may not give lack of information or knowledge as a
reason for failure to admit or deny unless the party has made
reasonable inquiry and states that the information known to or readily
obtainable by that party is insufficient to enable the party to admit
or deny. A party who considers that a matter as to which an admission
has been requested presents a genuine issue for a hearing may not
object to the request on that ground alone; the party may deny the
matter or set forth reasons why it cannot be admitted or denied.
(c) Sufficiency of answers. The party who has requested the
admissions may move to determine the sufficiency of the answers or
objections. Unless the objecting party sustains the burden of showing
that the objection is justified, the administrative law judge shall
order that an answer be served. If the administrative law judge
determines that an answer does not comply with the requirements of this
section, the administrative law judge may order either that the matter
is admitted or that an amended answer be served. The administrative law
judge may, in lieu of these orders, determine that final disposition of
the request be made at a prehearing conference or at a designated time
prior to a hearing under this part.
(d) Effect of admissions; withdrawal or amendment of admission. Any
matter admitted under this section may be conclusively established
unless the administrative law judge on motion permits withdrawal or
amendment of the admission. The administrative law judge may permit
withdrawal or amendment when the presentation of the issues of the
investigation will be subserved thereby and the party who obtained the
admission fails to satisfy the administrative law judge that withdrawal
or amendment will prejudice that party in maintaining its position on
the issue of the investigation. Any admission made by a party under
this section is for the purpose of the pending investigation and any
related proceeding as defined in Sec. 210.3.
0
46. Amend Sec. 210.32 by revising paragraphs (a)(3) and (c)(2) to read
as follows:
Sec. 210.32 Subpoenas.
(a) * * *
(3) The administrative law judge shall rule on all applications
filed under paragraph (a)(1) or (2) of this section and may issue
subpoenas when warranted. The administrative law judge shall also rule
on any motion seeking foreign judicial assistance to obtain testimony
or documents outside the United States.
* * * * *
(c) * * *
(2) Ruling. Such applications shall be ruled upon by the
administrative law judge, who may issue such subpoenas when warranted.
To the extent that the motion is granted, the administrative law judge
shall provide such terms and conditions for the production of the
material, the disclosure of the information, or the appearance of the
official or employee as may appear necessary and appropriate for the
protection of the public interest.
* * * * *
0
47. Amend Sec. 210.33 by revising paragraphs (b) introductory text and
(b)(3) and (6) to read as follows:
Sec. 210.33 Failure to make or cooperate in discovery; sanctions.
* * * * *
(b) Non-monetary sanctions for failure to comply with an order
compelling discovery. The administrative law judge may issue, based on
a party's motion or sua sponte, non-monetary sanctions for failure to
comply with an order compelling discovery. Such failure to comply may
include failure of a party, or an officer or corporate representative
of a party, to comply with an oral or written order including, but not
limited to, an order for the taking of a deposition or the production
of documents, an order to answer interrogatories, an order issued
pursuant to a request for admissions, or an order to comply with a
subpoena. Any such sanction may be ordered in the course of the
investigation or concurrently with the administrative law judge's final
initial determination on violation. The administrative law judge may
take such action in regard to a failure to comply with an order
compelling discovery as
[[Page 245]]
is just, including, but not limited to the following:
* * * * *
(3) Rule that the party may not introduce into evidence or
otherwise rely upon testimony by the party, officer, or corporate
representative, or documents, or other material in support of the
party's position in the investigation;
* * * * *
(6) Order any other non-monetary sanction available under Rule
37(b) of the Federal Rules of Civil Procedure.
* * * * *
0
48. Amend Sec. 210.34 by revising paragraphs (a) introductory text,
(c)(2), (d) introductory text, and (d)(5) and redesignating ``Note to
paragraph (d)'' as ``Note 1 to paragraph (d)''.
The revisions read as follows:
Sec. 210.34 Protective orders; reporting requirement; sanctions and
other actions.
(a) Issuance of protective order. Upon motion by a party or by the
person from whom discovery is sought or by the administrative law judge
sua sponte, and for good cause shown, the administrative law judge may
make any order that may appear necessary and appropriate for the
protection of the public interest or that justice requires to protect a
party or person from annoyance, embarrassment, oppression, or undue
burden or expense, including one or more of the following:
* * * * *
(c) * * *
(2) If the breach occurs while the investigation is before an
administrative law judge, any determination on sanctions of the type
enumerated in paragraphs (c)(3)(i) through (iv) of this section shall
be in the form of a recommended determination. The Commission may then
consider both the recommended determination and any related orders in
making a determination on sanctions. When the motion is addressed to
the administrative law judge for sanctions of the type enumerated in
paragraph (c)(3)(v) of this section, the administrative law judge shall
grant or deny a motion by issuing an order.
* * * * *
(d) Reporting requirement. Each person who is subject to a
protective order issued pursuant to paragraph (a) of this section shall
report in writing to the Commission immediately upon learning that
confidential business information disclosed to that person pursuant to
the protective order is the subject of:
* * * * *
(5) Any other written request, if the request or order seeks
disclosure, by that person or any other person, of the subject
confidential business information to a person who is not, or may not
be, permitted access to that information pursuant to either a
Commission protective order or Sec. 210.5(b).
* * * * *
Subpart F--Prehearing Conferences and Hearings
0
49. Amend Sec. 210.35 by revising paragraph (a) introductory text to
read as follows:
Sec. 210.35 Prehearing conferences.
(a) When appropriate. The administrative law judge in any
investigation may direct counsel or other representatives for all
parties to meet with the administrative law judge for one or more
conferences to consider any or all of the following:
* * * * *
0
50. Amend Sec. 210.37 by revising paragraph (g) to read as follows:
Sec. 210.37 Evidence.
* * * * *
(g) Excluded evidence. When an objection to a question propounded
to a witness is sustained, the examining party may make a specific
offer of what that party expects to prove by the answer of the witness,
or the administrative law judge may as a matter of discretion receive
and report the evidence in full. Rejected exhibits, adequately marked
for identification, shall be retained with the record so as to be
available for consideration by any reviewing authority.
0
51. Amend Sec. 210.38 by revising paragraph (d) to read as follows:
Sec. 210.38 Record.
* * * * *
(d) Certification of record. Any record created, including all
physical exhibits entered into evidence or such photographic
reproductions thereof as the administrative law judge approves, shall
be certified to the Commission by the administrative law judge at the
time the administrative law judge files an initial determination, or a
recommended determination, or at such earlier time as the Commission
may order.
0
52. Revise Sec. 210.40 to read as follows:
Sec. 210.40 Briefs and notices of supplemental authority.
(a) At the time a motion for summary determination under Sec.
210.18(a) or a motion for termination under Sec. 210.21(a) is made, or
when it is found that a party is in default under Sec. 210.16, or at
the close of the reception of evidence in any hearing held pursuant to
this part (except as provided in Sec. 210.63), or within a reasonable
time thereafter fixed by the administrative law judge, any party may
file briefs in support of that party's positions, in the form specified
by the administrative law judge, for the administrative law judge's
consideration. Such briefs shall be in writing, shall be served upon
all parties in accordance with Sec. 210.4(g), and shall contain
adequate references to the record and the authorities on which the
submitter is relying.
(b) If pertinent and significant authorities come to a party's
attention after the party's brief has been filed but before the final
initial determination has issued, the party may promptly advise the
administrative law judge by filing a written notice of supplemental
authority, no more than two (2) double-spaced pages in length. The
notice must be served on all other parties and must describe the
relevance of the supplemental authority, with reference to specific
pages in either the party's briefs or the transcript of the evidentiary
hearing. Any other party may file a response of no more than two (2)
double-spaced pages within five (5) business days after the date of
service of the notice of supplemental authority.
Subpart G--Determinations and Actions Taken
0
53. Amend Sec. 210.42 by:
0
a. Revising paragraphs (c)(1) and (h)(3);
0
b. Removing paragraph (h)(5);
0
c. Redesignating paragraph (h)(6) as paragraph (h)(5) and revising it;
and
0
d. Adding new paragraph (h)(6).
The revisions and addition read as follows:
Sec. 210.42 Initial determinations.
* * * * *
(c) * * *
(1) The administrative law judge shall grant the following types of
motions by issuing an initial determination or shall deny them by
issuing an order: a motion to amend the complaint or notice of
investigation pursuant to Sec. 210.14(b); a motion for a finding of
default pursuant to Sec. Sec. 210.16 and 210.17; a motion for summary
determination pursuant to Sec. 210.18; a motion for intervention
pursuant to Sec. 210.19; a motion for termination pursuant to Sec.
210.21; a motion to suspend an investigation pursuant to Sec. 210.23;
or a motion to set a target date for an original investigation
exceeding 16 months pursuant to Sec. 210.51(a)(1); or a motion to set
a target
[[Page 246]]
date for an enforcement proceeding exceeding twelve (12) months
pursuant to Sec. 210.51(a)(2).
* * * * *
(h) * * *
(3) An initial determination filed pursuant to paragraph (c)(1) of
this section shall become the determination of the Commission thirty
(30) days after the date of service of the initial determination,
except as provided for in paragraph (h)(5) of this section, unless the
Commission, within thirty (30) days after the date of such service
shall have ordered review of the initial determination or certain
issues therein or by order has changed the effective date of the
initial determination.
* * * * *
(5) The disposition of an initial determination filed pursuant to
paragraph (c)(1) of this section which grants a motion for summary
determination pursuant to Sec. 210.18 that would terminate the
investigation in its entirety if it were to become the Commission's
final determination, shall become the final determination of the
Commission forty-five (45) days after the date of service of the
initial determination, unless the Commission has ordered review of the
initial determination or certain issues therein, or by order has
changed the effective date of the initial determination.
(6) The disposition of an initial determination filed pursuant to
paragraph (c)(2) of this section, concerning possible forfeiture or
return of a respondent's bonds as governed by Sec. 210.50(d) or
possible forfeiture or return of a complainant's temporary relief bond
as governed Sec. 210.70(c), shall become the final determination of
the Commission forty-five (45) days after the date of service of the
initial determination, unless the Commission has ordered review of the
initial determination or certain issues therein, or by order has
changed the effective date of the initial determination.
* * * * *
0
54. Amend Sec. 210.43 by revising paragraph (a)(1) to read as follows:
Sec. 210.43 Petitions for review of initial determinations on matters
other than temporary relief.
(a) * * *
(1) Except as provided in paragraph (a)(2) of this section, any
party to an investigation may request Commission review of an initial
determination issued under Sec. 210.42(a) or (c), Sec. 210.50(d)(3),
Sec. 210.70(c), or Sec. 210.75(a)(3) by filing a petition with the
Secretary. A petition for review of an initial determination issued
under Sec. 210.42(a)(1) and a petition for review of any sanctions
order issued under Sec. 210.25(d) must be filed within twelve (12)
days after service of the initial determination or order. A petition
for review of an initial determination issued under Sec. 210.42(a)(3)
must be filed within five (5) business days after service of the
initial determination. A petition for review of an initial
determination issued under Sec. 210.42(c) that terminates the
investigation in its entirety on summary determination, or an initial
determination issued under Sec. 210.42(a)(2), Sec. 210.50(d)(3),
Sec. 210.70(c), or Sec. 210.75(a)(3), must be filed within ten (10)
days after service of the initial determination. Petitions for review
of all other initial determinations under Sec. 210.42(c) must be filed
within five (5) business days after service of the initial
determination. A petition for review of an initial determination issued
under Sec. 210.50(d)(3) or Sec. 210.70(c) must be filed within ten
(10) days after service of the initial determination.
* * * * *
0
55. Amend Sec. 210.45 by revising paragraph (c) to read as follows:
Sec. 210.45 Review of initial determinations on matters other than
temporary relief.
* * * * *
(c) Determination on review. On review, the Commission may affirm,
reverse, modify, vacate, or remand for further proceedings, in whole or
in part, the initial determination of the administrative law judge. In
addition, the Commission may take no position on specific issues or
portions of the initial determination of the administrative law judge.
The Commission also may make any findings or conclusions that in its
judgment are proper based on the record in the proceeding. If the
Commission's determination on review terminates the investigation in
its entirety, a notice will be published in the Federal Register.
0
56. Revise Sec. 210.48 to read as follows:
Sec. 210.48 Disposition of petitions for reconsideration.
The Commission may affirm, reverse, modify, or vacate its
determination, in whole or part, including any action ordered by it to
be taken thereunder. When appropriate, the Commission may remand to the
administrative law judge via an order, specifying any necessary
additional findings, determinations, or recommendations.
0
57. Amend Sec. 210.49 by revising paragraph (d) to read as follows:
Sec. 210.49 Implementation of Commission action.
* * * * *
(d) Finality of affirmative Commission action. If the President
does not disapprove the Commission's action within a 60-day period
beginning the day after a copy of the Commission's action is delivered
to the President, or if the President notifies the Commission before
the close of the 60-day period that the President approves the
Commission's action, such action shall become final the day after the
close of the 60-day period or the day the President notifies the
Commission of the President's approval, as the case may be.
* * * * *
0
58. Amend Sec. 210.51 by revising paragraphs (a) introductory text and
(a)(2) to read as follows:
Sec. 210.51 Period for concluding investigation.
(a) Permanent relief. Within forty-five (45) days after institution
of an original investigation as to whether there is a violation of
section 337 or an investigation that is an enforcement proceeding, the
administrative law judge shall issue an order setting a target date for
completion of the investigation. After the target date has been set, it
can be modified by the administrative law judge for good cause shown
before the investigation is certified to the Commission or by the
Commission after the investigation is certified to the Commission.
* * * * *
(2) Enforcement proceedings. If the target date does not exceed
twelve (12) months from the date of institution of the enforcement
proceeding, the order of the administrative law judge shall be final
and not subject to interlocutory review. If the target date exceeds
twelve (12) months, the order of the administrative law judge shall
constitute an initial determination. Any extension of the target date
beyond twelve (12) months shall be by initial determination.
* * * * *
Subpart H--Temporary Relief
0
59. Revise Sec. 210.63 to read as follows:
Sec. 210.63 Briefs.
The administrative law judge shall determine whether and, if so, to
what extent the parties shall be permitted to file briefs under Sec.
210.40 concerning the issues involved in adjudication of the motion for
temporary relief.
0
60. Revise Sec. 210.65 to read as follows:
[[Page 247]]
Sec. 210.65 Certification of the record.
When the administrative law judge issues an initial determination
concerning temporary relief pursuant to Sec. 210.66(a), the
administrative law judge shall also certify to the Commission the
record upon which the initial determination is based.
0
61. Amend Sec. 210.66 by revising paragraphs (c) and (f) to read as
follows:
Sec. 210.66 Initial determination concerning temporary relief;
Commission action thereon.
* * * * *
(c) The Commission will not modify, reverse, or vacate an initial
determination concerning temporary relief unless the Commission finds
that a finding of material fact is clearly erroneous, that the initial
determination contains an error of law, or that there is a policy
matter warranting discussion by the Commission. All parties may file
written comments concerning any clear error of material fact, error of
law, or policy matter warranting such action by the Commission. Such
comments must be limited to thirty-five (35) pages in an ordinary
investigation and forty-five (45) pages in a ``more complicated''
investigation. The comments must be filed no later than seven (7)
calendar days after issuance of the initial determination in an
ordinary case and ten (10) calendar days after issuance of the initial
determination in a ``more complicated'' investigation. In computing the
aforesaid 7-day and 10-day deadlines, intermediary Saturdays, Sundays,
and Federal holidays shall be included. If the initial determination is
issued on a Friday, however, the filing deadline for comments shall be
measured from the first business day after issuance. If the last day of
the filing period is a Saturday, Sunday, or Federal holiday as defined
in Sec. 201.14(a) of this chapter, the filing deadline shall be
extended to the next business day. The parties shall serve their
comments on other parties by messenger, overnight delivery, or
equivalent means.
* * * * *
(f) If the Commission determines to modify, reverse, or vacate the
initial determination, the Commission will issue a notice and, if
appropriate, a Commission opinion. If the Commission does not modify,
reverse, or vacate the administrative law judge's initial determination
within the time provided under paragraph (b) of this section, the
initial determination will automatically become the determination of
the Commission. Notice of the Commission's determination concerning the
initial determination will be issued on the statutory deadline for
determining whether to grant temporary relief, or as soon as possible
thereafter, and will be served on the parties. Notice of the
determination will be published in the Federal Register if the
Commission's disposition of the initial determination has resulted in a
determination that there is reason to believe that section 337 has been
violated and a temporary remedial order is to be issued. If the
Commission determines (either by reversing or modifying the
administrative law judge's initial determination, or by adopting the
initial determination) that the complainant must post a bond as a
prerequisite to the issuance of temporary relief, the Commission may
issue a supplemental notice setting forth conditions for the bond if
any (in addition to those outlined in the initial determination) and
the deadline for filing the bond with the Commission.
0
62. Amend Sec. 210.67 by revising paragraph (a) to read as follows:
Sec. 210.67 Remedy, the public interest, and bonding.
* * * * *
(a) While the motion for temporary relief is before the
administrative law judge, the administrative law judge may compel
discovery on matters relating to remedy, the public interest and
bonding (as provided in Sec. 210.61). The administrative law judge
also is authorized to make findings pertaining to the public interest,
as provided in Sec. 210.66(a). Such findings may be superseded,
however, by Commission findings on that issue as provided in paragraph
(c) of this section.
* * * * *
Subpart I--Enforcement Procedures and Advisory Opinions
0
63. Amend Sec. 210.75 by revising paragraphs (a)(1) introductory text
and (a)(1)(i)(B) and (C) and adding paragraphs (a)(1)(i)(D) and
(a)(1)(v) to read as follows:
Sec. 210.75 Proceedings to enforce exclusion orders, cease and desist
orders, consent orders, and other Commission orders.
(a) * * *
(1) The Commission may institute an enforcement proceeding upon the
filing of an enforcement complaint pursuant to Sec. Sec. 210.4 and
210.8(a) by the complainant in the original investigation or the
complainant's successor in interest, by the Office of Unfair Import
Investigations, or by the Commission. Notwithstanding Sec.
210.8(a)(1)(ii), no paper copies of enforcement complaints or exhibits
thereto are required for the government of the foreign country in which
each alleged violator is located. If a proceeding is instituted, the
Commission shall publish in the Federal Register a notice of
institution and shall serve copies of the nonconfidential version the
enforcement complaint, the nonconfidential exhibits, and the notice of
investigation upon each alleged violator. Within fifteen (15) days
after the date of service of such a complaint, the named respondent
shall file a response to it.
(i) * * *
(B) The filing party requests that the Commission postpone the
determination on whether to institute an investigation;
(C) The filing party withdraws the complaint; or
(D) The complaint or any exhibits or attachments thereto contain
excessive designations of confidentiality that are not warranted under
Sec. 201.6(a) of this chapter and Sec. 210.5.
* * * * *
(v) If the Commission determines that the complaint or any exhibits
or attachments thereto contain excessive designations of
confidentiality that are not warranted under Sec. 201.6(a) of this
chapter and Sec. 210.5, the Commission may require the complainant to
file new nonconfidential versions of the aforesaid submissions in
accordance with Sec. 210.4(f)(7)(i) and may determine that the thirty
(30) day period for deciding whether to institute an investigation
shall begin to run anew from the date the new nonconfidential versions
are filed with the Commission in accordance with Sec. 210.4(f)(7)(i).
* * * * *
0
64. Amend Sec. 210.76 by revising the paragraph (a) heading and
paragraphs (a)(1) and (3) to read as follows:
Sec. 210.76 Modification or rescission of exclusion orders, cease and
desist orders, consent orders, and seizure and forfeiture orders.
(a) Petitions for modification or rescission of exclusion orders,
cease and desist orders, consent orders, and seizure and forfeiture
orders. (1) Whenever any person believes that changed conditions of
fact or law, or the public interest, require that an exclusion order,
cease and desist order, consent order, or seizure and forfeiture order
be modified or rescinded, in whole or in part, such person may file a
petition, pursuant to section 337(k)(1) of the Tariff Act of 1930,
requesting that the Commission make a determination that the conditions
which led to the issuance of an exclusion order, cease and desist
order, consent order, or seizure and
[[Page 248]]
forfeiture order no longer exist. The Commission may also on its own
initiative consider such action. The petition shall state the changes
desired and the changed circumstances or public interest warranting
such action, shall include materials and argument in support thereof,
and shall be served on all parties to the investigation in which the
exclusion order, cease and desist order, consent order, or seizure and
forfeiture order was issued. Any person may file a response to the
petition within ten (10) days of service of the petition. If the
Commission makes such a determination, it shall notify the Secretary of
the Treasury and U.S. Customs and Border Protection.
* * * * *
(3) If the petition requests modification or rescission of an order
issued pursuant to section 337(d), (e), (f), (g), or (i) of the Tariff
Act of 1930 on the basis of a licensing or other settlement agreement,
the petition shall contain copies of the licensing or other settlement
agreements, any supplemental agreements, any documents referenced in
the petition or attached agreements, and a statement that there are no
other agreements, written or oral, express or implied between the
parties concerning the subject matter of the investigation. If the
licensing or other settlement agreement contains confidential business
information within the meaning of Sec. 201.6(a) of this chapter, a
copy of the agreement with such information deleted shall accompany the
petition. On motion for good cause shown, the administrative law judge
or the Commission may limit the service of the agreements to the
settling parties and the Commission investigative attorney.
* * * * *
0
65. Revise appendix A to part 210 to read as follows:
Appendix A to Part 210--Adjudication and Enforcement
----------------------------------------------------------------------------------------------------------------
Commission deadline for
Petitions for review Response to petitions determining whether to
Initial determination concerning: due: due: review the initial
determination:
----------------------------------------------------------------------------------------------------------------
1. Violation Sec. 210.42(a)(1)..... 12 days from service of 8 days from service of 60 days from service of
the initial any petition. the initial
determination. determination (on
private parties).
2. Summary initial determination that 10 days from service of 5 business days from 45 days from service of
would terminate the investigation if the initial service of any the initial
it became the Commission's final determination. petition. determination (on
determination Sec. 210.42(c)(1). private parties).
3. Other matters Sec. 210.42(c)(1). 5 business days from 5 business days from 30 days from service of
service of the initial service of any the initial
determination. petition. determination (on
private parties).
4. Declassify information Sec. 10 days from service of 5 business days from 45 days from service of
210.42(a)(2). the initial service of any the initial
determination. petition. determination (on
private parties).
5. Potentially dispositive issues 5 business days from 5 business days from 30 days from service of
Sec. 210.42(a)(3). service of the initial service of any the initial
determination. petition. determination (on
private parties).
6. Forfeiture or return of 10 days from service of 5 business days from 45 days from service of
respondents' bond Sec. the initial service of any the initial
210.50(d)(3). determination. petition. determination (on
private parties).
7. Forfeiture or return of 10 days from service of 5 business days from 45 days from service of
complainant's temporary relief bond the initial service of any the initial
Sec. 210.70(c). determination. petition. determination (on
private parties).
8. Enforcement proceedings Sec. 10 days from service of 5 business days from 45 days from service of
210.75(a)(3). the enforcement service of any the enforcement
initial determination. petition. initial determination
(on private parties).
----------------------------------------------------------------------------------------------------------------
By order of the Commission.
Issued: December 20, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-31242 Filed 1-2-25; 8:45 am]
BILLING CODE 7020-02-P
</pre></body>
</html>Indexed from Federal Register on January 3, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.