[Federal Register Volume 60, Number 60 (Wednesday, March 29, 1995)]
[Proposed Rules]
[Pages 16082-16087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7567]
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INTERNATIONAL TRADE COMMISSION
19 CFR Part 210
Notice of Proposed Rulemaking Concerning Federal Register Notices
and Service of Documents on Other Agencies
AGENCY: International Trade Commission.
ACTION: Notice of proposed rulemaking and request for comments.
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SUMMARY: The Commission proposes to amend certain final rules for
investigations and related proceedings under section 337 of the Tariff
Act of 1930 (19 U.S.C. 1337) to do the following: eliminate the Federal
Register publication requirement for [[Page 16083]] certain notices
that are not required by law; and reduce the number of documents that
are served on other Federal agencies pursuant to section 337(b)(2).
DATES: Comments on the proposed amendments to the final rules will be
considered if received on or before May 30, 1995.
ADDRESSES: A signed original and 18 copies of each set of comments,
along with a cover letter stating the nature of the commenter's
interest in the proposed rulemaking, should be submitted to Donna R.
Koehnke, Secretary, U.S. International Trade Commission, 500 E Street,
SW., Room 112, Washington, DC 20436.
FOR FURTHER INFORMATION CONTACT: P.N. Smithey, Esq., Office of the
General Counsel, U.S. International Trade Commission, telephone 202-
205-3061. Hearing-impaired individuals can obtain information
concerning the proposed rulemaking by contacting the Commission's TDD
terminal at 202-205-1810.
SUPPLEMENTARY INFORMATION:
Background
On August 1, 1994, the Commission published final rules for 19 CFR
part 210 to eventually replace the interim rules currently found in 19
CFR parts 210 and 211.1 The interim rules in 19 CFR Parts 210 and
211 (1994) apply to all pending investigations and related proceedings
that were instituted before September 1, 1994. The final rules, which
went into effect on Aug. 31, 1994, and will be codified in 19 CFR Part
210 in 1995, apply to all investigations and related proceedings
instituted on or after September 1, 1994.2
\1\See 59 FR 39020, Part II (Aug. 1, 1994) as corrected by 59 FR
64286 (Dec. 14, 1994).
\2\Interim amendments to the final rules were published at 59 FR
67622 (Dec. 30, 1994). Those amendments apply to all section 337
complaints filed on or after January 1, 1995.
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The interim and final Commission rules governing investigations and
related proceedings under section 337 require the Commission to serve
various documents on other Federal agencies and to publish a notice in
the Federal Register when certain events occur. The Commission
Inspector General's (IG's) Audit Report No. IG-03-94, Review of Ways to
Increase the Economy and Efficiency of the Process for Conducting
Section 337 Investigations (Aug. 19, 1994), criticized those practices.
The IG recommended that the Commission cease publication of Federal
Register notices that are not required by law. She suggested that the
following factors supported such action: (1) The publication fees are
not nominal; (2) significant amounts of staff time and resources are
consumed in the preparation of notices for publication; (3) the parties
to an investigation are served with copies of all notices issued in the
investigation and thus do not have to rely on the Federal Register; and
(4) interested persons who are not parties can obtain copies of
Commission notices from sources other than the Federal Register. The
Commission agreed that it should cease the publication of some, but not
all, Federal Register notices that are not required by law.
The IG also recommended that the Commission cease the current
practice of routinely serving various section 337 documents on other
agencies, which practice was initiated in order to comply with the
section 337(b)(2) provision requiring the Commission to consult with
and to seek advice and information from other agencies. The IG noted
that other agencies rarely commented and often did not review the
section 337 documents that were served.
The Commission agreed with the IG's conclusion that the Commission
rules should be amended to eliminate the requirement that various
documents be served on other agencies and that the Commission's present
system of complying with the statutory mandate to consult with such
agencies needs improvement.
On behalf of the Commission, the Chairman issued administrative
orders implementing the proposed changes by suspending the relevant
interim and final rules on an interim basis. See Administrative Orders
95-09 (Mar 1, 1995), 95-10 (Mar. 1, 1995), 95-11 (Mar. 21, 1995), and
95-12 (Mar. 21, 1995).
The Commission also decided to publish proposed amendments to the
final rules to eliminate the Federal Register publication requirement
for some, but not all, notices that are not required by statute. The
specific amendments that the Commission is contemplating are discussed
below.
Final Rule 210.7
Final rule 210.7 is currently entitled ``Service of process and
other documents.'' The Commission proposes to amend that rule by
retitling it ``Service of process and other documents; publication of
notices'' and by adding provisions concerning the publication of
Federal Register notices. The Commission thought it best to add the new
publication provisions to an existing rule rather than creating a new
rule, in order to avoid having to renumber the existing rules.
The Commission proposes to amend the text of final rule 210.7 by
designating the current text as paragraph (a) of the amended rule and
then adding a new paragraph (b) which provides that notices will be
published in the Federal Register only when such publication is
required--
1. By a rule in 19 CFR Chapter II of the Commission's rules of
Practice and Procedure (which includes the rules of general
application in Part 201 as well as the rules in Part 210); or
2. By order of an ALJ or the Commission (notwithstanding the
absence of a rule specifically authorizing publication of the notice
in question); or
3. Because an ALJ or the Commission has determined to amend or
supplement a previously published notice.
Section 337 notices are available for public inspection in the
Office of the Secretary. They will also be made available on WESTLAW
and LEXIS. The Commission also is exploring the possibility of making
its section 337 notices available on the Internet.
Final Rule 210.11
Paragraph (a) of final rule 210.11 governs service of documents by
the Commission Secretary when the Commission institutes a section 337
investigation. Paragraph (a) currently requires the Secretary to serve
nonconfidential copies of the following documents on other Federal
agencies:
(1) The complaint; (2) the notice of investigation; and (3) the
motion for temporary relief (if any).
The Commission proposes to amend paragraph (a) to eliminate the
requirement that copies of the complaint and motion for temporary
relief must be served on other agencies. Copies of those submissions
will be made available to the other agencies upon request. The amended
paragraph (a) will be will designated paragraph (a)(1) of the amended
rule 210.11 and will contain no reference to service of documents on
other agencies. The Commission proposes to create a new paragraph
(a)(2) stating that the Commission will serve copies of the notice of
investigation on other Federal agencies.
Final Rule 210.21
Paragraph (b)(2) of final rule 210.21 discusses the action to be
taken when an administrative law judge (ALJ) certifies to the
Commission an initial determination (ID) granting a motion for
termination of an investigation in whole or part on the basis of a
licensing, settlement, or other agreement. The Commission proposes to
amend this rule by eliminating the requirement that [[Page 16084]] a
notice soliciting public comments on the ID is to be published in the
Federal Register. Paragraph (b)(2) will also be amended to provide that
if the Commission's final disposition of the ID results in termination
of the investigation in its entirety, a notice will be published in the
Federal Register.
Finally, paragraph (b)(2) will be amended to state that notice of
the ID will be given to the other Federal agencies and departments. The
cover letter accompanying the notice will:
1. Identify the parties and products involved (to the extent
that information does not appear in the notice);
2. Offer to provide the nonconfidential version of the ID upon
request; and
3. List an appropriate person to contact for further
information.
If the Commission ultimately determines to make its IDs and other
section 337 documents available on the Internet, all cover letters also
will explain how the ID and other documents can be accessed on the
Internet.
Paragraph (c)(2) of final rule 210.21 discusses the final
disposition of an ID granting a motion for termination of an
investigation in whole or part on the basis of a consent order.
Paragraph (c)(2)(i) of that rule will be amended to omit the
requirement that copies of an ID are to be served on other Federal
agencies. The amended paragraph will provide that notice of the ID will
be given to the other agencies. (The notice will be accompanied by a
cover letter of the sort described above in connection with notice of
an ID granting termination on the basis of a settlement, licensing, or
other agreement.)
The Commission proposes to amend paragraph (c)(2)(ii) by
eliminating the requirement that notice of the Commission's final
disposition of the ID granting a motion for termination on the basis of
a consent order is to be published in the Federal Register. Instead,
the amended rule will state that a notice will be published only if the
final disposition of the ID results in termination of the investigation
in its entirety. A Federal Register notice will not be published if the
disposition terminates the investigation only in part (i.e., as to one
or more, but not all, respondents).
Paragraph (d) of final rule 210.21 was added by the December 30,
1994, interim amendments to Part 210 to implement the Uruguay Round
Agreements Act. Paragraph (d) discusses the final disposition of an ID
granting a motion for termination of an investigation in whole or part
on the basis of an arbitration agreement. The Commission proposes to
amend paragraph (d) by eliminating the requirement that notice of the
Commission's final disposition of the ID granting a motion for
termination on the basis of an arbitration agreement is to be published
in the Federal Register. Instead, the amended rule will state that a
notice will be published only if the final disposition of the ID
results in termination of the investigation in its entirety.
Final Rule 210.41
Final rule 210.41, as amended on December 30, 1994, currently
states that, except as provided in the rules governing terminations on
the basis of a consent order, settlement, licensing, arbitration or
other agreement, an order of termination issued by the Commission shall
constitute a determination of the Commission. The Commission proposes
to further amend final rule 210.41 by adding a sentence stating that
the Commission shall publish in the Federal Register notice of each
Commission order that terminates an investigation in its entirety.
Final Rule 210.42
Paragraph (e) of final rule 210.42 indicates that nonconfidential
copies of all IDs on matters other than temporary relief will be served
on other Federal agencies. The Commission proposes to amend paragraph
(e) to provide that notice of IDs granting motions for termination of
an investigation in whole or part on the basis of a consent order or a
licensing, settlement, or other agreement--and notice of such other IDs
as the Commission may order--will be provided to the customary Federal
agencies (in the manner described above in connection with paragraphs
(b)(2) and (c)(2)(i) of final rule 210.21 concerning notices of IDs
granting termination on the basis of a consent order or a licensing,
settlement, or other agreement).
Paragraph (i) of final rule 210.42 currently states that notice of
the Commission's decision to review an ID will be published in the
Federal Register. The Commission proposes to amend that paragraph by
deleting the publication requirement and replacing it with a statement
that if the Commission's decision terminates the investigation in its
entirety, a notice will be published in the Federal Register.
Final Rule 210.43
Paragraph (d)(3) of final rule 210.43 currently states that notice
of the Commission's decision to grant a petition for review of an ID on
a matter other than temporary relief will be served on other Federal
agencies. The Commission proposes to amend paragraph (d)(3) to state
that such a notice will be served on the other agencies only if the
notice also solicits written submissions from interested persons on the
issues of remedy, the public interest, and bonding by respondents.
Final Rule 210.45
Paragraph (c) of final rule 210.45 currently describes the action
that the Commission may take upon review of an ID on a matter other
than temporary relief. The Commission proposes to amend paragraph (c)
to provide that if the Commission's determination on review terminates
the investigation in its entirety, a notice will be published in the
Federal Register.
Final Rule 210.66
Paragraph (d) of final rule 210.66 states that copies of the
nonconfidential version of each ID on temporary relief will be served
on other Federal agencies. The Commission proposes to amend paragraph
(d) to state that notice of the ID will be provided to the other
agencies (in the manner described above in connection with final rule
210.21 concerning notice of IDs granting termination on the basis of a
consent order or a licensing, settlement, or other agreement).
Paragraph (f) of final rule 210.66 currently states that notice of
the Commission's final disposition of a temporary relief ID will be
published in the Federal Register. The Commission proposes to amend
paragraph (f) to state that notice of the determination will be
published in the Federal Register only if the Commission's disposition
of the ID 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. (Section 337(j)(1) requires that a notice be
published in those circumstances.)
Final Rule 210.74
Paragraph (b) of final rule 210.74 describes the procedure for
Commission modification of the reporting requirements of consent
orders. The Commission proposes to amend paragraph (b) to provide that
notice of any proposed change will be published in the Federal Register
only if the Commission determines to solicit public comment on the
proposed change.
Final Rule 210.75
Paragraph (b) of final rule 210.75 describes the Commission action
to be taken following receipt of a petition for modification or
rescission of a remedial order, a consent order, or another
[[Page 16085]] Commission order. The Commission proposes to amend
paragraph (b) by removing the requirement that notice of the
institution of such proceedings be published in the Federal Register.
If the Commission decides to proceed with this rulemaking after
reviewing the comments filed in response to this notice, the proposed
rule amendments will be promulgated in accordance with the
Administrative Procedure Act (5 U.S.C. 553), and will be codified in 19
CFR part 210. If and when the final rules are amended, the Commission
will also revoke appropriate provisions of the interim rules.
List of Subjects in 19 CFR Part 210
Administrative practice and procedure, Advisory opinions, Business
and industry, Customs duties and inspection, Imports, Investigations.
PART 210--ADJUDICATIVE PROCEDURES
1. The authority citation for part 210 will continue to read as
follows:
Authority: 19 U.S.C. 1333, 1335, and 1337.
2. For the reasons set forth in the preamble, the Commission
proposes to revise Sec. 210.7 to read as follows:
Sec. 210.7 Service of process and other documents; publication of
notices.
(a) Manner of service. The service of process and all documents
issued by or on behalf of the Commission or the administrative law
judge--and the service of all documents issued by parties under
Secs. 210.27 through 210.34 of this part--shall be in accordance with
Sec. 201.16 of this chapter, unless the Commission, the administrative
law judge, or another section of this part specifically provides
otherwise.
(b) Publication of notices. (1) Notice of action by the Commission
or an administrative law judge will be published in the Federal
Register only as specifically provided in paragraph (b)(2) of this
section, by another section in this chapter, or by order of an
administrative law judge or the Commission.
(2) When an administrative law judge or the Commission determines
to amend or supplement a notice published in accordance with paragraph
(b)(1) of this section, notice of the amendment will be published in
the Federal Register.
3. For the reasons set forth in the preamble, the Commission
proposes to revise paragraph (a) of Sec. 210.11 to read as follows:
Sec. 210.11 Service of complaint and notice of investigation.
(a)(1) Notwithstanding the provisions of Sec. 210.54 requiring
service of the complaint by the complainant, the Commission, upon
institution of an investigation, shall serve copies of the complaint
and the notice of investigation (and any accompanying motion for
temporary relief) upon each respondent and the embassy in Washington,
DC of the government of each foreign country represented by each
respondent. All respondents named after an investigation has been
instituted and the governments of the foreign countries they represent
shall be served as soon as possible after the respondents are named.
(2) The Commission shall serve copies of the notice of
investigation upon the U.S. Department of Health and Human Services,
the U.S. Department of Justice, the Federal Trade Commission, the U.S.
Customs Service, and such other agencies and departments as the
Commission considers appropriate.
* * * * *
4. For the reasons set forth in the preamble, the Commission
proposes to revise paragraphs (b)(2), (c)(2)(i), (c)(2)(ii), and (d) of
Sec. 210.21 to read as follows:
Sec. 210.21 Termination of investigations.
* * * * *
(b) Termination by settlement. * * *
(2) The motion and agreement(s) shall be certified by the
administrative law judge to the Commission with an initial
determination if the motion for termination is granted. If the
licensing or other 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 simultaneously with the confidential
versions of such documents. Notice of the initial determination and the
agreement shall be provided to the U.S. Department of Health and Human
Services, the U.S. Department of Justice, the Federal Trade Commission,
the U.S. Customs Service, and such other departments and agencies as
the Commission deems appropriate. If the Commission's final disposition
of the initial determination results in termination of the
investigation in its entirety, a notice will be published in the
Federal Register. An order of termination by settlement need not
constitute a determination as to violation of section 337 of the Tariff
Act of 1930.
(c) Termination by entry of consent order. * * *
(2) Commission disposition of consent order. (i) If an initial
determination granting the motion for termination based on a consent
order stipulation is filed with the Commission, notice of the initial
determination and the consent order stipulation shall be provided to
the U.S. Department of Health and Human Services, the U.S. Department
of Justice, the Federal Trade Commission, the U.S. Customs Service, and
such other departments and agencies as the Commission deems
appropriate.
(ii) The Commission, after considering the effect of the settlement
by consent order upon the public health and welfare, competitive
conditions in the U.S. economy, the production of like or directly
competitive articles in the United States, and U.S. consumers, shall
dispose of the initial determination according to the procedures of
Secs. 210.42 through 210.45. If the Commission's final disposition of
the initial determination results in termination of the investigation
in its entirety, a notice will be published in the Federal Register. An
order of termination by consent order need not constitute a
determination as to violation of section 337. Should the Commission
reverse the initial determination, the parties are in no way bound by
their proposal in later actions before the Commission.
* * * * *
(d) Termination based upon arbitration agreement. Upon filing of a
motion for termination with 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. A notice
will be published in the Federal Register if the Commission's final
disposition of the initial determination results in termination of the
investigation in its entirety. 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.
* * * * * [[Page 16086]]
5. For the reasons set forth in the preamble, the Commission
proposes to revise Sec. 210.41 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). The Commission shall publish in
the Federal Register notice of each Commission order that terminates an
investigation in its entirety.
6. For the reasons set forth in the preamble, the Commission
proposes to amend paragraphs (e) and (i) of Sec. 210.42 to read as
follows:
Sec. 210.42 Initial determinations.
* * * * *
(e) Notice to and advice from other departments and agencies.
Notice of each initial determination granting a motion for termination
of an investigation in whole or part on the basis of a consent order or
a settlement, licensing, or other agreement pursuant to Sec. 210.21 of
this part, and notice of such other initial determinations as the
Commission may order, shall be provided to the U.S. Department of
Health and Human Services, the U.S. Department of Justice, the Federal
Trade Commission, the U.S. Customs Service, and such other departments
and agencies as the Commission deems appropriate. The Commission shall
consider comments, limited to issues raised by the record, the initial
determination, and the petitions for review, received from such
agencies when deciding whether to initiate review or the scope of
review. The Commission shall allow such agencies 10 days after the
service of an initial determination to submit their comments.
* * * * *
(i) Notice of determination. A notice stating the Commission's
decision on whether to review an initial determination will be issued
by the Secretary and served on the parties. Notice of the Commission's
decision will be published in the Federal Register if the decision
results in termination of the investigation in its entirety.
7. For the reasons set forth in the preamble, the Commission
proposes to revise paragraph (d)(3) of Sec. 210.43 to read as follows:
Sec. 210.43 Petitions for review of initial determinations on matters
other than temporary relief.
* * * * *
(d) * * *
(3) The Commission shall grant a petition for review and order
review of an initial determination or certain issues therein when at
least one of the participating Commissioners votes for ordering review.
In its notice, the Commission shall establish the scope of the review
and the issues that will be considered and make provisions for filing
of briefs and oral argument if deemed appropriate by the Commission. If
the notice solicits written submissions from interested persons on the
issues of remedy, the public interest, and bonding in addition to
announcing the Commission's decision to grant a petition for review of
the ID, the notice shall be served by the Secretary on all parties, the
U.S. Department of Health and Human Services, the U.S. Department of
Justice, the Federal Trade Commission, the U.S. Customs Service, and
such other departments and agencies as the Commission deems
appropriate.
8. For the reasons set forth in the preamble, the Commission
proposes to revise paragraph (c) of Sec. 210.45 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, set aside or remand for further proceedings, in whole
or in part, 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.
9. For the reasons set forth in the preamble, the Commission
proposes to revise paragraphs (d) and (f) of Sec. 210.66 to read as
follows:
Sec. 210.66 Initial determination concerning temporary relief;
Commission action thereon.
* * * * *
(d) Notice of the initial determination shall be served on the
other agencies listed in Sec. 210.50(a)(2). Those agencies will be
given 10 calendar days from the date of service of the notice to file
comments on the initial determination.
* * * * *
(f) If the Commission determines to modify, reverse, or set aside
the initial determination, the Commission will issue a notice and, if
appropriate, a Commission opinion. If the Commission does not modify,
reverse, or set aside 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 ID 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.
10. For the reasons set forth in the preamble, the Commission
proposes to revise paragraph (b) of Sec. 210.74 to read as follows:
Sec. 210.74 Modification of reporting requirements.
* * * * *
(b) Consent orders. Consistent with the standards set forth in
paragraph (a) of this section, the Commission may modify reporting
requirements of consent orders. The Commission shall serve notice of
any proposed change, together with the reporting requirements to be
modified and the reasons therefor, on each party subject to the consent
order. Such parties shall be given the opportunity to submit briefs to
the Commission, and the Commission may hold a hearing on the matter.
Notice of any proposed change in the reporting requirements will be
published in the Federal Register if the Commission determines to
solicit public comment on the proposed change.
11. For the reasons set forth in the preamble, the Commission
proposes to revise paragraph (b)(1) of Sec. 210.75 to read as follows:
Sec. 210.75 Proceedings to enforce exclusion orders, cease and desist
orders, consent orders, and other Commission orders.
* * * * *
(b) Formal enforcement proceedings. (1) The Commission may
institute an enforcement proceeding at the Commission level upon the
filing of a [[Page 16087]] complaint by the complainant in the original
investigation or his successor in interest, by the Office of Unfair
Import Investigations, or by the Commission setting forth alleged
violations of any exclusion order, cease and desist order, or consent
order. If a proceeding is instituted, the complaint shall be served
upon the alleged violator. Within 15 days after the date of service of
such a complaint, the named respondent shall file a response to it.
Responses shall fully advise the Commission as to the nature of any
defense and shall admit or deny each allegation of the complaint
specifically and in detail unless the respondent is without knowledge,
in which case its answer shall so state and the statement shall operate
as a denial. Allegations of fact not denied or controverted may be
deemed admitted. Matters alleged as affirmative defenses shall be
separately stated and numbered.
* * * * *
Issued: March 22, 1995.
By Order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 95-7567 Filed 3-28-95; 8:45 am]
BILLING CODE 7020-02-P
