[Federal Register Volume 59, Number 250 (Friday, December 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32125]
[[Page Unknown]]
[Federal Register: December 30, 1994]
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INTERNATIONAL TRADE COMMISSION
19 CFR Part 210
Procedures for Investigations and Related Proceedings Concerning
Unfair Practices in Import Trade
AGENCY: U.S. International Trade Commission.
ACTION: Interim rules and request for comment.
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SUMMARY: The Commission is amending certain rules of practice and
procedure to implement amendments to section 337 of the Tariff Act of
1930 enacted by Congress as part of the Uruguay Round Agreements Act.
By implementing the law, the rules bring U.S. procedures into
conformity with national treatment obligations under GATT, while
providing for the effective enforcement of intellectual property rights
at the border.
DATES: The effective date of the interim rules is January 1, 1995, the
date on which the World Trade Organization (WTO) Agreement enters into
force with respect to the United States, unless the United States Trade
Representative announces prior to that date that the WTO Agreement will
not enter into force on that date. Should the effective date not be
January 1, 1995, the Commission will publish notice to such effect in
the Federal Register.
These interim rules apply to section 337 complaints filed on or
after the effective date.
Comments on these interim rules will be considered if received by
March 30, 1995.
ADDRESSES: A signed original and 14 copies of each set of comments,
along with a cover letter addressed to Donna R. Koehnke, Secretary,
should be sent to the U.S. International Trade Commission, Office of
the Secretary, room 112, 500 E Street SW., Washington, DC 20436.
FOR FURTHER INFORMATION CONTACT: Paul A. Newhouse, Esq., Office of the
Administrative Law Judges, U.S. International Trade Commission,
telephone 202-205-2699. Hearing-impaired individuals can obtain
information on the final rules by contacting the Commission's TDD
terminal at 202-205-1810.
SUPPLEMENTARY INFORMATION:
Background
In 1989, the General Agreement on Tariffs and Trade (GATT) adopted
a report finding that USITC procedures in investigations under section
337 of the Tariff Act of 1930 violated GATT ``national treatment''
rules. The report listed several ways in which imported goods are
treated less favorably in Commission investigations than domestic goods
are treated in district court infringement cases. In the Uruguay Round
Agreements Act, Congress amended section 337 to bring USITC procedures
into compliance with the GATT ``national treatment'' rules. See H. Rep.
No. 103-826, 103d Cong., 2d Sess. 140-142 (1994). The amendments, and
the interim rule revisions that follow, focus on changes in four areas
that respond to GATT criticisms:
time limits for concluding an investigation have been eliminated
and a procedure for establishing a ``target date'' for completion
has been adopted instead;
respondents are given the opportunity to stay parallel actions
in district court while a Commission investigation is proceeding;
the Commission's record may be used subsequently in the district
court;
limitations are placed on the Commission's ability to issue
``general'' exclusion orders; and
respondents are permitted to file counterclaims at the
Commission; these claims will be heard by a district court, but the
same subject matter may be considered as part of an affirmative
defense at the Commission.
Other amendments bring Commission practice into closer conformity
with district court practice with respect to bonding requirements and
the deference accorded to arbitration agreements.
The Procedure for Adopting Interim Rules
The URAA was enacted on December 8, 1994. This legislation contains
provisions which, inter alia, amend section 337 of the Tariff Act of
1930 (19 U.S.C. 1337). The Commission's rules concerning Section 337
practice and procedure need to be amended to conform to the new
legislation.
Commission rules to implement new legislation ordinarily are
promulgated in accordance with the rulemaking provisions of section 553
of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.), which
entails the following steps: (1) Publication of a notice of proposed
rulemaking; (2) solicitation of public comment on the proposed rules;
(3) Commission review of such comments prior to developing final rules;
and (4) publication of the final rules thirty days prior to their
effective date. See 5 U.S.C. 553. That procedure could not be utilized
in this instance because the new legislation was enacted on December 8,
1994, and will become effective, with respect to the amendments to
section 337 of the Act, on January 1, 1995, the date on which the WTO
Agreement enters into force with respect to the United States, unless
the United States Trade Representative announces prior to that date
that the WTO Agreement will not enter into force on that date. These
interim rules apply to section 337 complaints filed on or after the
effective date. It was consequently not possible to complete the
section 553 rulemaking procedure prior to the effective date of the new
legislation.
The Commission thus determined to adopt interim rules that will go
into effect when the provisions of the URAA amending section 337 become
effective and will remain in effect until the Commission can adopt
final rules promulgated in accordance with the usual notice, comment,
and advance publication procedure.
The Commission's authority to adopt interim rules without following
all steps listed in section 553 of the APA is derived from three
sources: (1) Section 335 of the Act (19 U.S.C. 1335); (2) section 103
of the URAA and the Statement of Administrative Action approved by the
URAA; and (3) provisions of section 553 of the APA which allow an
agency to dispense with various steps in the prescribed rulemaking
procedure under certain circumstances.
Section 335 of the Act authorizes the Commission ``to adopt such
reasonable procedures and rules and regulations as it deems necessary
to carry out its functions and duties.'' 19 U.S.C. 1335. Similarly,
section 103(a) of the URAA authorizes federal agencies to ``issue such
regulations as may be necessary to ensure that any provision of this
Act, or amendment made by this Act, that takes effect on the date [of]
any of the Uruguay Round Agreements entered into force with respect to
the United States is appropriately implemented on such date,'' and
section 103(b) of the URAA directs that ``[a]ny interim regulations
necessary or appropriate to carry out any action proposed in the
statement of administrative action approved under section 101 [of the
URAA] to implement an agreement described in section 101(d) (7), (12),
or (13) [of the URAA] be issued not later than 1 year after the date on
which the agreement enters into force with respect to the United
States.''
The Commission determined that the need for interim rules is clear
in this instance. The Commission noted that the new legislation alters
section 337 practice and procedure and that the existing Commission
rules do not encompass certain procedures required by the new
legislation. The Commission found that rulemaking was essential for the
orderly administration of section 337 as amended by the new
legislation. Furthermore, since the legislation was to become effective
very shortly after enactment, the Commission concluded that it was
imperative that implementing rules be in place on the effective date of
the new statute.
The Commission noted that an agency may dispense with publication
of a notice of proposed rulemaking when the following circumstances
exist: (1) The proposed rules are interpretive rules, general
statements of policy, or rules of agency organization, procedure or
practice; or (2) the agency for good cause finds that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the
public interest, and that finding (and the reasons therefor) are
incorporated into the rules adopted by the agency. 5 U.S.C. 553(b). An
agency may also dispense with the publication of a notice of final
rules thirty days prior to their effective date if (1) the rules are
interpretive rules of statements of policy or (2) the agency finds that
``good cause'' exists for not meeting the advance publication
requirement and that finding is published along with the rule 5 U.S.C.
553(d)(3).
In this instance, the Commission determined that the requisite
circumstances existed for dispensing with the notice, comment, and
advance publication procedure that ordinarily precedes the adoption of
Commission rules. For purposes of invoking the section 553(b) exemption
from publishing a notice of proposed rulemaking which solicits public
comment, the Commission found that (1) the interim rules are ``agency
rules of procedure or practice''; and (2) since the new legislation is
projected to become effective very shortly after enactment, and the
time or fact of enactment could not be predicted in advance, it clearly
would be ``impracticable'' for the Commission to comply with the usual
notice, comment, and advance publication procedure. For the purpose of
invoking the section 553(d)(3) exemption from publishing advance notice
of the interim rules thirty days prior to their effective date, the
Commission found that the fact that the new legislation is expected to
become effective very shortly after enactment made such advance
publication impossible and constituted ``good cause'' for the
Commission not to comply with that requirement.
The Commission recognizes that interim regulations should not
respond to anything more than the exigencies created by the new
legislation. Having been promulgated in response to exigencies created
by the new legislation, each interim rule accordingly comes under one
or more of the following categories: (1) Revision of a pre-existing
rule that conflicted with the new legislation; (2) a technical
amendment to make a pre-existing rule conform to the language of the
new legislation; (3) rewording of a pre-existing rule to avoid
confusion about how the rule is to be applied in light of the new
legislation; or (4) a new rule covering a matter provided for in the
new legislation but not covered by a pre-existing rule. More
comprehensive final rules will be issued at a later date in accordance
with the usual notice, public comment, and advance publication
procedure.
Because the interim regulations merely respond to exigencies
created by the new legislation, the Commission has further determined
that they 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 EO. In
accordance with the Regulatory Flexibility Act (5 U.S.C. 601 note), the
Commission hereby certifies pursuant to 5 U.S.C. 605(b) that the rules
set forth in this notice are not likely to have a significant impact on
a substantial number of small business entities. In any event, the
Regulatory Flexibility Act is inapplicable to this rulemaking because
it is not one in which a notice of proposed rulemaking is required
under 5 U.S.C. 553(b).
Section-By-Section Analysis of the Interim Rules
Subpart A--Rules of General Applicability
Section 210.3
The definition of ``investigation'' is revised to eliminate a
reference to designating the permanent relief phase of an investigation
``more complicated.'' See discussion of Sec. 210.22 below.
Section 210.4
Paragraph (d)(2)(iii)(B) has been revised to indicate that a
termination based on an arbitration agreement joins terminations based
on settlement agreements and consent order agreements in a category of
cases in which monetary sanctions may be imposed on the initiative of
the administrative law judge or the Commission.
Section 210.5
Paragraph (b) is revised to conform to amended 19 U.S.C.
1337(n)(2), which clarifies the list of government officers and
employees who may have access to confidential business information.
A new paragraph (c) is added to alert the reader to the possibility
that confidential business information may be transmitted to a federal
district court, subject to such protective order as the district court
determines necessary. This result might occur in a limited class of
cases because of newly-enacted 28 U.S.C. 1659. Past Commission practice
has been to permit the transfer of confidential business information to
another court only with permission of the supplier of the information.
Particularly where the supplier is a third party who is involved in
neither the Commission investigation nor the district court case, it is
important that the supplier be made aware that treatment of
confidential information would be governed by the district court's
protective order and not that of the Commission following transmittal
of the record under this provision. It is expected that future
protective orders will refer to this rule and the similar provision in
Sec. 210.39(b) to assure that all suppliers of confidential business
information are aware of this possibility.
The remaining two paragraphs of this section are redesignated (d)
and (e).
Subpart C--Pleadings
Section 210.14
A new paragraph (e) is added to implement the amendment to 19
U.S.C. 1337(c) with regard to counterclaims. The rule requires that
counterclaims be filed not later than ten business days before the
commencement of the evidentiary hearing. This requirement should
provide a respondent adequate discovery time to identify potential
counterclaims while avoiding the distraction that might occur if
counterclaims could be filed during (or after) the evidentiary hearing.
For reasons of clarity, the rule requires counterclaims to be filed in
a separate document.
The statutory amendment makes clear that the new procedures with
respect to counterclaims do not affect the ability of a respondent to
present all legal or equitable defenses that may be available to it in
a section 337 investigation. Action on the counterclaim will not delay
or affect the Commission's proceeding. The Commission is not precluded
from considering judicial rulings on counterclaims as part of the
Commission's consideration of the effect of a remedial order on the
public interest. See H.R. Rep. No. 103-826, 103d Cong., 2d Sess. 141
(1994).
Subpart D--Motions
Section 210.16
Paragraph (c)(2) is revised to include by reference the
requirements added to Sec. 210.50(c) below with regard to criteria that
must be considered by the Commission before issuing a general exclusion
order.
Section 210.21
A new paragraph (d) is added to implement the amendment to 19
U.S.C. 1337(c) that permits the Commission to terminate an
investigation on the basis of an agreement between the private parties
to present the matter for arbitration, as well as the traditional
settlement agreement. The procedures to be followed with respect to a
motion to terminate on the basis of an arbitration agreement are
similar to those pertaining to settlement agreements under paragraph
(b) of this section.
Paragraph (a)(2) is revised to include a reference to the new
paragraph (d), and the previous paragraph (d) is redesignated (e).
Section 210.22
Amendments to 19 U.S.C. 1337(b) eliminated time limits for
concluding the permanent relief phase of an investigation under section
337. The provision for a ``more complicated'' designation resulting in
an 18-month deadline was eliminated. Instead, the Commission is
directed to establish a ``target date'' in each investigation. The
procedure for establishing a target date is discussed with respect to
Sec. 210.51 below.
This section is amended by deleting paragraph (b) with respect to a
``more complicated'' designation of the permanent relief phase of an
investigation. The previous paragraph (c) is redesignated (b) and is
otherwise unchanged. This paragraph deals with declaring the temporary
relief phase of an investigation ``more complicated,'' a procedure that
was unchanged by the statutory amendments.
Section 210.23
This section is revised to reflect amendments to 19 U.S.C.
1337(b)(1), which eliminate the authority of the Commission to suspend
an investigation ``because of proceedings in a court or agency of the
United States involving similar questions concerning the subject
matter'' of the investigation. The Commission retains the authority to
suspend an investigation pending review by the Department of Commerce
of possible antidumping or countervailing duty matters referred to the
Department of Commerce by the Commission pursuant to 19 U.S.C.
1337(b)(3), and the rule is revised to reflect this retained authority.
The need for an investigation to be suspended no longer exists
insofar as the statutory deadline for concluding the permanent relief
phase has been eliminated. Circumstances that would have warranted
suspension under the old rules may warrant an extension of the target
date for completing the investigation under these amendments. With
respect to the temporary relief phase of an investigation, however, the
elimination of authority to suspend is significant, because the strict
statutory deadlines for deciding petitions for temporary relief have
been retained. Temporary relief proceedings now must proceed to
completion regardless of concurrent parallel proceedings in other
courts or agencies (except for the rare proceeding at the Department of
Commerce, referred to in the preceding paragraph). If a complainant
pursues a motion for temporary relief under circumstances that would
have resulted in suspension under the Commission's prior practice,
there may be a basis for requiring a more substantial bond from the
complainant before temporary relief is ordered.
Section 210.24
Paragraph (a)(2) is deleted because ``more complicated''
designations have been eliminated with respect to permanent relief.
Paragraph (a)(3) is redesignated (a)(2).
Paragraph (b)(2) is revised to reflect the renumbering of the
paragraphs in Sec. 210.5.
Subpart F--Prehearing Conferences and Hearings
Section 210.39
A new paragraph (b) is added and the succeeding paragraphs are
redesignated. The addition outlines the circumstances in which the
Commission's record, including the in camera record, may be transmitted
to a federal district court, subject to such protective order as the
district court determines necessary. As in Sec. 210.5, discussed above,
this rule alerts the reader that treatment of confidential business
information would be governed by the district court's protective order
following transmittal of the Commission's record to the court.
Subpart G--Determinations and Actions Taken
Section 210.41
This section is revised to conform the cross-references to amended
Sec. 210.21.
Section 210.42
Paragraph (a)(1)(i) is revised to establish new time frames in
which the initial determination on violation must be filed. If the
target date for completing the permanent relief phase of the
investigation is set at 15 months or less, the initial determination is
to be filed three months before the target date. If the target date is
more than 15 months, the initial determination is to be filed four
months before the target date. (The procedure for establishing the
target date is found in Sec. 210.51, discussed below.)
Paragraphs (b) and (c) are revised to reflect the amendment of
Sec. 210.70 to include the return as well as possible forfeiture of a
complainant's temporary relief bond. Paragraph (c) is further revised
to include initial determinations that may be issued in two new
situations: in granting a motion for forfeiture or return of
respondents' bonds pursuant to Sec. 210.50(d) and in granting a motion
to set a target date exceeding 15 months from the date of institution
pursuant to Sec. 210.51(a).
Paragraph (h)(3) is revised to give initial determinations issued
pursuant to Sec. 210.50(d)(3) the same status as those issued pursuant
to Sec. 210.70(c). The effect of the exception expressed in this
paragraph is to give a 45-day effective date rather than a 30-day
effective date to initial determinations granting motions for
forfeiture or return of either complainants' or respondents' bonds.
Section 210.43
Paragraphs (a)(1) and (d) are revised to refer to initial
determinations issued under new Sec. 210.50(d) and to put these initial
determinations on the same footing as those issued under
Sec. 210.70(c).
Section 210.49
Paragraph (a) is revised to conform the cross-references to amended
Sec. 210.21.
Section 210.50
Paragraph (a)(3) is revised to implement the specific statutory
direction that the Commission determine the amount of a respondent's
bond ``sufficient to protect the complainant from any injury.'' 19
U.S.C. 1337(e) and (j)(3). The Commission expects to construe this
direction on a case-by-case basis. Language referring to past
Commission practice in determining the amount of a respondent's bond
has been deleted.
Paragraph (b)(2) is revised to conform the cross-references to
amended Sec. 210.21.
Paragraph (c) is new and implements the statutory limitations on
issuance of a general exclusion order found in 19 U.S.C. 1337(d)(2).
These limitations are consonant with past Commission practice as
articulated in Certain Airless Paint Spray Pumps and Components
Thereof, Inv. No. 337-TA-90 (USITC Pub. 1199, Nov. 1981) and cases
following it. The Commission expects the law in this area to continue
to develop on a case-by-case basis in view of the new statutory
language.
Paragraph (d) is new and implements the statutory requirement that
the Commission prescribe terms and conditions under which bonds may be
forfeited. 19 U.S.C. 1337(e)(4) and (j)(3). The terms of this rule are
essentially similar to those in Sec. 210.70 relating to the forfeiture
or return of a complainant's temporary relief bond. Both rules
implement the Congressional mandate that the Commission be guided by
practice under Rule 65 of the Federal Rules of Civil Procedure with
respect to forfeiture of a complainant's bond. H.R. Rep. No. 103-826,
103d Cong., 2d Sess. 142 (1994). Although Federal Rule 65 literally
applies to bonding by the proponent of temporary relief, its underlying
rationale is equally applicable to respondents' bonds in section 337
investigations. ``Practice under Rule 65'' includes all sources of
authority pertaining to Rule 65 that are generally relied on in the
practice of law, including (but not limited to) judicial decisions and
notes of the advisory committee on rules. Treatises and commentary also
may be considered.
Section 210.51
Congress amended 19 U.S.C. 1337(b) to eliminate the time limit for
completing an investigation, but directed that the Commission complete
an investigation and make its determination ``at the earliest
practicable time.'' Section 210.51(a) is revised to reflect this change
and to implement the requirement that the Commission, within 45 days
after an investigation is instituted, set a target date for completion
of the investigation. The rule allows the administrative law judge to
set (and modify) the target date in a final order not subject to review
as long as the target date does not exceed 15 months from the date of
institution. Target dates exceeding 15 months are set in initial
determinations, reviewable by the Commission. The Commission expects
that most investigations will be concluded within the traditional time
frame of 12 months or less. Deadlines for various activities pertaining
to section 337 investigations have been retained in the rules unless
specifically amended herein.
Paragraph (c) is revised to reflect the elimination of the
Commission's authority to suspend an investigation except as set forth
in Sec. 210.23.
Subpart H--Temporary Relief
Section 210.52
Paragraph (c) is revised to indicate that the Commission will be
guided by Rule 65 of the Federal Rules of Civil Procedure in
determining whether to require a bond as a prerequisite to the issuance
of temporary relief, as mandated by the legislative history of the
statutory amendments. H.R. Rep. No. 103-826, 103d Cong., 2d Sess. 142
(1994). The factors relied upon by the Commission in its past practice
are deleted from paragraphs (c) and (e), and paragraph (f) is
redesignated as (e).
Section 210.70
Paragraph (a) is revised to reflect the statutory change
authorizing forfeiture of the complainant's temporary relief bond to
the respondent and to authorize the complainant to file a motion for
the return of its bond when appropriate.
Paragraph (c) is revised to indicate that the Commission will be
guided by practice under Rule 65 of the Federal Rules of Civil
Procedure in determining whether to require a bond as a prerequisite to
the issuance of temporary relief, as mandated by the legislative
history of the statutory amendments. H.R. Rep. No. 103-826, 103d Cong.,
2d Sess. 142 (1994). ``Practice under Rule 65'' includes all sources of
authority pertaining to Rule 65 that are generally relied on in the
practice of law, including (but not limited to) judicial decisions and
notes of the advisory committee on rules. Treatises and commentary also
may be considered.
Because forfeiture of a bond posted by a complainant now will be to
the respondent rather than the government, the provision in the prior
rule allowing a motion for forfeiture to be made by the Commission
investigative attorney or by the Commission is deleted. Consistent with
practice under Rule 65 of the Federal Rules of Civil Procedure, a
respondent seeking forfeiture would be required to show the costs and
damages incurred as a result of the imposition of temporary relief. The
respondent itself is in the best position to make this showing and
should bear the responsibility of filing a motion for forfeiture of a
bond when appropriate.
The former provision precluding a stay of forfeiture proceedings
pending appeal of the Commission's determination on violation also is
deleted in view of the statutory change. A stay may or may not be
appropriate depending on the facts of each case, including the ability
of a respondent to repay an amount forfeited to it in the event of a
reversal on appeal.
List of Subjects in 19 CFR Part 210
Administrative practice and procedure, Business and industry,
Customs duties and inspection, Imports, Investigations.
For the reasons set forth in the preamble, 19 CFR Part 210 is
amended as set forth below.
PART 210--ADJUDICATION AND ENFORCEMENT
1. The authority citation for part 210 is revised to read as
follows:
Authority: 19 U.S.C. 1333, 1335, and 1337.
2. The definition of investigation in Sec. 210.3 is amended by
revising the fourth sentence to read as follows:
Sec. 210.3 Definitions.
* * * * *
Investigation * * * An investigation can also involve the
processing of one or more of the following: A motion to amend the
complaint and notice of investigation; a motion for temporary relief; a
motion to designate ``more complicated'' the temporary relief stage of
the investigation; an interlocutory appeal of an administrative law
judge's decision on a particular matter; a motion for sanctions for
abuse of process, abuse of discovery, or failure to make or cooperate
in discovery, which if granted, would have an impact on the
adjudication of the merits of the complaint; a petition for
reconsideration of a final Commission determination; a motion for
termination of the investigation in whole or part; and procedures
undertaken in response to a judgment or judicial order issued in an
appeal of a Commission determination or remedial order issued under
section 337 of the Tariff Act of 1930. * * *
* * * * *
3. Section 210.4(d)(2)(iii) is revised to read as follows:
Sec. 210.4 Written submissions; representations; sanctions.
* * * * *
(d) * * *
(2) * * *
(iii) Monetary sanctions may not be imposed on the administrative
law judge's or the Commission's initiative unless--
(A) The Commission or the administrative law judge issues an order
to show cause before the investigation or related proceeding is
terminated, in whole or in relevant part, as to the party or proposed
party which is, or whose attorneys are, to be sanctioned; and
(B) such termination is the result of--
(1) A motion to withdraw the complaint, motion, or petition that
was the basis for the investigation or related proceeding;
(2) A settlement agreement;
(3) A consent order agreement; or
(4) An arbitration agreement.
* * * * *
4. Section 210.5 is amended by redesignating paragraphs (c) and (d)
as paragraphs (d) and (e), revising paragraphs (b)(2) and (b)(4) and
adding new paragraph (c) to read as follows:
Sec. 210.5 Confidential business information.
* * * * *
(b) * * *
(2) An officer or employee of the Commission who is directly
concerned with--
(i) Carrying out or maintaining the records of the investigation or
related proceeding for which the information was submitted;
(ii) The administration of a bond posted pursuant to subsection
(e), (f), or (j) of section 337 of the Tariff Act of 1930;
(iii) The administration or enforcement of an exclusion order
issued pursuant to subsection (d), (e), or (g), a cease and desist
order issued pursuant to subsection (f), or a consent order issued
pursuant to subsection (c) of section 337 of the Tariff Act of 1930; or
(iv) Proceedings for the modification or rescission of a temporary
or permanent order issued under subsection (d), (e), (f), (g), or (i)
of section 337 of the Tariff Act of 1930, or a consent order issued
under section 337 of the Tariff Act of 1930;
* * * * *
(4) An officer or employee of the United States Customs Service who
is directly involved in administering an exclusion from entry under
section 337 (d), (e), or (g) of the Tariff Act of 1930 resulting from
the investigation or related proceeding in connection with which the
information was submitted.
(c) Transmission of certain records to district court.
Notwithstanding paragraph (b) of this section, confidential business
information may be transmitted to a district court and be admissible in
a civil action, subject to such protective order as the district court
determines necessary, pursuant to 28 U.S.C. 1659.
* * * * *
5. Section 210.14 is amended by revising the section heading and by
adding paragraph (e) to read as follows:
Sec. 210.14 Amendments to pleadings and notice; supplemental
submissions; counterclaims.
* * * * *
(e) Counterclaims. At any time after institution of the
investigation, but not later than ten business days before the
commencement of the evidentiary hearing, a respondent may file a
counterclaim at the Commission in accordance with section 337(c) of the
Tariff Act of 1930. Counterclaims shall be filed in a separate
document. A respondent who files such a counterclaim shall immediately
file a notice of removal with a United States district court in which
venue for any of the counterclaims raised by the respondent would exist
under 28 U.S.C. 1391.
6. Section 210.16(c)(2) is amended by revising the last sentence to
read as follows:
Sec. 210.16 Default.
* * * * *
(c) * * *
(2) * * * The Commission may issue a general exclusion order
pursuant to section 337(g)(2) of the Tariff Act of 1930, regardless of
the source or importer of the articles concerned, provided that a
violation of section 337 of the Tariff Act of 1930 is established by
substantial, reliable, and probative evidence, and only after
considering the aforementioned public interest factors and the
requirements of Sec. 210.50(c).
7. Section 210.21 is amended by redesignating paragraph (d) as
paragraph (e), by revising paragraph (a)(2) and by adding a new
paragraph (d), to read as follows:
Sec. 210.21 Termination of investigations.
(a) * * *
(2) Any party may move at any time for an order to terminate an
investigation in whole or in part as to any or all respondents on the
basis of a settlement, a licensing or other agreement, including an
agreement to present the matter for arbitration, or a consent order, as
provided in paragraphs (b), (c) and (d) of this section.
* * * * *
(d) Termination based upon arbitration agreement. Upon filing of a
motion for termination to the administrative law judge or the
Commission, a section 337 investigation may be terminated as to one or
more respondents pursuant to section 337(c) of the Tariff Act of 1930
on the basis of an agreement between complainant and one or more of the
respondents to present the matter for arbitration. The motion and a
copy of the arbitration agreement shall be certified by the
administrative law judge to the Commission with an initial
determination if the motion for termination is granted. If the
agreement or the initial determination contains confidential business
information, copies of the agreement and initial determination with
confidential business information deleted shall be certified to the
Commission with the confidential versions of such documents. The
Commission shall publish a notice in the Federal Register stating that
an initial determination has been received, that nonconfidential
versions of the initial determination and the agreement are available
for inspection in the Office of the Secretary, and that interested
persons may submit written comments concerning termination of the
respondents in question within 10 days of the date of publication of
the notice in the Federal Register. An order of termination based on an
arbitration agreement does not constitute a determination as to
violation of section 337 of the Tariff Act of 1930.
* * * * *
8. Section 210.22 is amended by removing paragraph (b) and
redesignating paragraph (c) as paragraph (b).
9. Section 210.23 is amended by revising the first sentence to read
as follows:
Sec. 210.23 Suspension of investigation.
Any party may move to suspend an investigation under this part,
because of the pendency of proceedings before the Secretary of Commerce
or the administering authority pursuant to section 337(b)(3) of the
Tariff Act of 1930. * * *
10. Section 210.24 is amended by removing paragraph (a)(2),
redesignating paragraph (a)(3) as (a)(2), and revising paragraphs
(a)(1) and (b)(2) to read as follows:
Sec. 210.24 Interlocutory appeals.
* * * * *
(a) * * *
(1) Requires the disclosure of Commission records or requires the
appearance of Government officials pursuant to Sec. 210.32(c)(2); or
* * * * *
(b) * * *
(2) Applications for review of a ruling by an administrative law
judge under Sec. 210.5(e)(1) as to whether information designated
confidential by the supplier is entitled to confidential treatment
under Sec. 210.5(b) may be allowed only upon request made to the
administrative law judge and upon determination by the administrative
law judge in writing, with justification in support thereof.
* * * * *
11. Section 210.39 is amended by redesignating paragraphs (b)
through (d) as paragraphs (c) through (e) and adding a new paragraph b
to read as follows:
Sec. 210.39 In camera treatment of confidential information.
* * * * *
(b) Transmission of certain Commission records to district court.
In a civil action involving parties that are also parties to a
proceeding before the Commission under section 337 of the Tariff Act of
1930, at the request of a party to the civil action that is also a
respondent in the proceeding before the Commission, the district court
may stay, until the determination of the Commission becomes final,
proceedings in the civil action with respect to any claim that involves
the same issues involved in the proceeding before the Commission under
certain conditions. If such a stay is in effect, after the
determination of the Commission becomes final, the Commission shall
certify to the district court such portions of the record of its
proceeding as the district court may request. Notwithstanding paragraph
(a) of this section, the in camera record may be transmitted to a
district court and be admissible in a civil action, subject to such
protective order as the district court determines necessary, pursuant
to 28 U.S.C. 1659.
* * * * *
12. Section 210.41 is revised to read as follows:
Sec. 210.41 Termination of investigation.
Except as provided in Sec. 210.21(b)(2), (c) and (d), an order of
termination issued by the Commission shall constitute a determination
of the Commission under Sec. 210.45(c).
13. Section 210.42 is amended by revising paragraphs (a)(1)(i),
(b), (c), and (h)(3) to read as follows:
Sec. 210.42 Initial determinations.
(a)(1)(i) On issues concerning violation of section 337. Unless
otherwise ordered by the Commission, the administrative law judge shall
certify the record to the Commission and shall file an initial
determination on whether there is a violation of section 337 of the
Tariff Act of 1930 no later than 3 months before the target date set
pursuant to Sec. 210.51(a) if the target date is 15 months or less from
the date of institution, and no later than 4 months before the target
date if the target date is more than 15 months from the date of
institution.
* * * * *
(b) On issues concerning temporary relief or forfeiture of
temporary relief bonds. Certification of the record and the disposition
of an initial determination concerning a motion for temporary relief
are governed by Secs. 210.65 and 210.66. The disposition of an initial
determination concerning possible forfeiture or return of a
complainant's temporary relief bond, in whole or in part, is governed
by Sec. 210.70.
(c) On other matters. 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. 210.16; 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; a motion for forfeiture or return of respondents' bonds
pursuant to Sec. 210.50(d); a motion to set a target date exceeding 15
months pursuant to Sec. 210.51(a); or a motion for forfeiture or return
of a complainant's temporary relief bond pursuant to Sec. 210.70.
* * * * *
(h) * * *
(3) An initial determination filed pursuant to Sec. 210.42(c) shall
become the determination of the Commission 30 days after the date of
service of the initial determination, except as provided in paragraph
(h)(5) of this section, Sec. 210.50(d)(3) and Sec. 210.70(c), unless
the Commission, within 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.
* * * * *
14. Section 210.43 is amended by revising the first and last
sentences of paragraph (a)(1) and the first sentence of paragraph
(d)(1) to read as follows:
Sec. 210.43 Petitions for review of initial determinations on matters
other than temporary relief.
(a) Filing of the petition. (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)(1) or (c), Sec. 210.50(d)(3) or Sec. 210.70(c) by filing
a petition with the Secretary. * * * A petition for review of an
initial determination issued under Sec. 210.50(d)(3) or Sec. 210.70(c)
must be filed within 10 days after issuance of the initial
determination.
* * * * *
(d) Grant or denial of review. (1) The Commission shall decide
whether to grant, in whole or in part, a petition for review of an
initial determination filed pursuant to Sec. 210.42(a)(1),
Sec. 210.50(d)(3) or Sec. 210.70(c) within 45 days of the service of
the initial determination on the parties, or by such other time as the
Commission may order. * * *
* * * * *
15. Section 210.49 is amended by revising paragraph (a) to read as
follows:
Sec. 210.49 Implementation of Commission action.
(a) Service of Commission determination upon the parties. A
Commission determination pursuant to Sec. 210.45(c) or a termination on
the basis of a licensing or other agreement, a consent order or an
arbitration agreement pursuant to Sec. 210.21(b), (c) or (d),
respectively, shall be served upon each party to the investigation.
* * * * *
16. Section 210.50 is amended by revising paragraph (a)(3) and the
first sentence of paragraph (b)(2), and by adding paragraphs (c) and
(d), to read as follows:
Sec. 210.50 Commission action, the public interest, and bonding by
respondents.
(a) * * *
(3) Determine the amount of the bond to be posted by a respondent
pursuant to section 337(j)(3) of the Tariff Act of 1930 following the
issuance of temporary or permanent relief under section 337(d), (e),
(f), or (g) of the Tariff Act of 1930, taking into account the
requirement of section 337(e) and (j)(3) that the amount of the bond be
sufficient to protect the complainant from any injury.
* * *
(b)* * *
(2) Regarding terminations by settlement agreement, consent order,
or arbitration agreement under Sec. 210.21 (b), (c) or (d), the parties
may file statements regarding the impact of the proposed termination on
the public interest, and the administrative law judge may hear
argument, although no discovery may be compelled with respect to issues
relating solely to the public interest. * * *
(c) No general exclusion from entry of articles shall be ordered
under paragraph (a)(1) of this section unless the Commission determines
that--
(1) Such exclusion is necessary to prevent circumvention of an
exclusion order limited to products of named persons; or
(2) There is a pattern of violation of section 337 of the Tariff
Act of 1930 and it is difficult to identify the source of infringing
products.
(d) Forfeiture or return of respondents' bonds. (1)(i) If one or
more respondents posts a bond pursuant to 19 U.S.C. 1337(e)(1) or
1337(j)(3), proceedings to determine whether a respondent's bond should
be forfeited to a complainant in whole or part may be initiated upon
the filing of a motion by a complainant within 30 days after expiration
of the Presidential review period under 19 U.S.C. 1337(j).
(ii) A respondent may file a motion for the return of its bond.
(2) Any nonmoving party may file a response to a motion filed under
paragraph (d)(1) of this section within 15 days after filing of the
motion, unless otherwise ordered by the administrative law judge.
(3) A motion for forfeiture or return of a respondent's bond in
whole or part will be adjudicated by the administrative law judge in an
initial determination with a 45-day effective date, which shall be
subject to review under the provisions of Secs. 210.42 through 210.45.
In determining whether to grant the motion, the administrative law
judge and the Commission will be guided by practice under Rule 65 of
the Federal Rules of Civil Procedure (taking into account that the
roles of the parties are reversed in this instance).
(4) If the Commission determines that a respondent's bond should be
forfeited to a complainant, and if the bond is being held by the
Secretary of the Treasury, the Commission Secretary shall promptly
notify the Secretary of the Treasury of the Commission's determination.
17. Section 210.51 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 210.51 Period for concluding investigation.
(a) Permanent relief. Within 45 days after institution of the
investigation, the administrative law judge shall issue an order
setting a target date for completion of the investigation. If the
target date does not exceed 15 months from the date of institution of
the investigation, the order of the administrative law judge shall be
final and not subject to interlocutory review. If the target date
exceeds 15 months, the order of the administrative law judge shall
constitute an initial determination. After the target date has been
set, it can be modified by the administrative law judge for good cause
shown before the case is certified to the Commission or by the
Commission after the case is certified to the Commission.
* * * * *
(c) Computation of time. In computing the deadlines imposed in
paragraph (b) of this section, there shall be excluded any period
during which the investigation is suspended pursuant to Sec. 210.23.
18. Section 210.52 is amended by removing paragraph (e),
redesignating paragraph (f) as paragraph (e), and revising paragraph
(c) to read as follows:
Sec. 210.52 Motions for temporary relief.
* * * * *
(c) In determining whether to require a bond as a prerequisite to
the issuance of temporary relief, the Commission will be guided by
practice under Rule 65 of the Federal Rules of Civil Procedure.
* * * * * *
19. Section 210.70 is revised to read as follows:
Sec. 210.70 Forfeiture or return of complainant's temporary relief
bond.
(a)(1) If the Commission determines that one or more of the
respondents whose merchandise was covered by the temporary relief order
has not violated section 337 of the Tariff Act of 1930 to the extent
alleged in the motion for temporary relief and provided for in the
temporary relief order, proceedings to determine whether the
complainant's bond should be forfeited to one or more respondents in
whole or part may be initiated upon the filing of a motion by a
respondent within 30 days after filing of the aforesaid Commission
determination on violation.
(2) A complainant may file a motion for the return of its bond.
(b) Any nonmoving party may file a response to a motion filed under
paragraph (a) of this section within 15 days after filing of the
motion, unless otherwise ordered by the administrative law judge.
(c) A motion for forfeiture or return of a complainant's temporary
relief bond in whole or part will be adjudicated by the administrative
law judge in an initial determination with a 45-day effective date,
which shall be subject to review under the provisions of Secs. 210.42
through 210.45. In determining whether to grant the motion, the
administrative law judge and the Commission will be guided by practice
under Rule 65 of the Federal Rules of Civil Procedure.
Issued: December 23, 1994.
By Order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 94-32125 Filed 12-29-94; 8:45 am]
BILLING CODE 7020-02-P
