2010-24563. Rules of Adjudication and Enforcement

AGENCY:

International Trade Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The United States International Trade Commission (“Commission”) proposes to amend its Rules of Practice and Procedure concerning rules of general application, adjudication, and enforcement. The amendments are necessary to gather more information on public interest issues arising from complaints filed with the Commission requesting institution of an investigation under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337. The intended effect of the proposed amendments is to aid the Commission in identifying investigations that require further development of public interest issues in the record, and to identify and develop information regarding the public interest at each stage of the investigation.

DATES:

To be assured of consideration, written comments must be received by 5:15 p.m. on November 30, 2010.

ADDRESSES:

You may submit comments, identified by docket number MISC-032, by any of the following methods:

—Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

—Agency Web Site: http://www.usitc.gov. Follow the instructions for submitting comments on the web site at http://www.usitc.gov/​secretary/​edis.htm.

—E-mail: [e-mail]. Include docket number MISC-032 in the subject line of the message.

—Mail: For paper submission. U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436.

—Hand Delivery/Courier: U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436. From the hours of 8:45 a.m. to 5:15 p.m.

Instructions: All submissions received must include the agency name and docket number (MISC-032), along with a cover letter stating the nature of the commenter's interest in the proposed rulemaking. All comments received will be posted without change to http://www.usitc.gov,, including any personal information provided. For paper copies, a signed original and 14 copies of each set of comments should be submitted to Marilyn R. Abbott, Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436.

Docket: For access to the docket to read background documents or comments received, go to http://www.usitc.gov and/or the U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436.

FOR FURTHER INFORMATION CONTACT:

James Worth, telephone [phone], or Megan Valentine, telephone, 202-708-2301, Office of the General Counsel, United States International Trade Commission. 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 http://www.usitc.gov.

SUPPLEMENTARY INFORMATION:

The preamble below is designed to assist readers in understanding these proposed amendments to the Commission Rules. This preamble provides background information, a regulatory analysis of the proposed amendments, a section-by-section explanation of the proposed amendments to part 210, and a description of the proposed amendments to the rules. The Commission encourages members of the public to comment, in addition to any other comments they wish to make on the proposed amendments, on whether the language of the proposed amendments is sufficiently clear for users to understand.

If the Commission decides to proceed with this rulemaking after reviewing the comments filed in response to this notice, the proposed rule revisions will be promulgated in accordance with the applicable requirements of the Administrative Procedure Act (“APA”) (5 U.S.C. 553), and will be codified in 19 CFR part 210.

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. The Commission proposes amendments to its rules covering investigations under section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) (“section 337”) in order to increase the efficiency of its section 337 investigations.

This rulemaking effort began in 2010, as part of an effort to gather information on the public interest at an earlier stage in the investigation, and to aid the Commission in determining when to delegate part of the development of the record on the public interest to the administrative law judge. The Commission invites the public to comment on all of these proposed rules amendments. In any comments, please consider addressing whether the language of the proposed amendments is sufficiently clear for users to understand. In addition please consider addressing how the proposed rules amendments could be improved, and/or offering specific constructive alternatives where appropriate.

Consistent with its ordinary practice, the Commission is issuing these proposed amendments in accordance with the applicable requirements of section 553 of the APA. This procedure entails the following steps: (1) Publication of a notice of proposed rulemaking; (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 days prior to their effective date.

Regulatory Analysis of Proposed Amendments to the Commission's Rules

The Commission has determined that the final 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 final rulemaking is required under 5 U.S.C. 553(b) or any other statute. Although the Commission has chosen to publish a notice of proposed rulemaking, these proposed 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 proposed 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 proposed rules will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments.

The proposed 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. 3501 et seq.), because it is part of an administrative action or investigation against specific individuals or entities. 44 U.S.C. 3518(c)(1)(B)(ii).

Subpart C—Pleadings

Sections 210.12 and 210.13

Section 210.12 generally provides the requirements for a complaint, and § 210.13 generally provides requirements for responses to the complaint. To obtain information from the complainant on the existence and nature of any public interest issues raised by the complaint at the time of its filing, the Commission proposes adding a paragraph (a)(12) to § 210.12 to require that the complainant provide in the complaint specific information regarding any public interest issues arising from the complaint. The complaint should address how issuance of an 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. In particular, the complaint should:

• Explain how the articles potentially subject to the orders are used in the United States;
• Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;
• Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
• Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.

The Commission further proposes adding a paragraph (k) to § 210.12 to provide that, when a complaint is filed, the Secretary to the Commission will publish a notice in the Federal Register soliciting comments from the public and/or the proposed respondents on any public interest issues arising from the complaint.

Similarly, to obtain information from respondents on the existence and nature of any public interest issues arising from the complaint at the time of the response to the complaint, the Commission proposes adding a new paragraph (b)(4) to § 210.13(b) to require the respondents to respond to the public interest issues raised by the complaint. Respondents may also address any comments received from the public with respect to the public interest.

Subpart G—Determinations and Actions Taken

Sections 210.50

Section 210.50 provides that the Commission, in the event of a violation of section 337, shall consider the appropriateness of an exclusion order or a cease and desist order in light of the public interest factors; the Commission must also determine whether, and in what amount, bonding is appropriate. Thus, in the event of a violation of section 337, it is the responsibility of the Commission to make determinations regarding remedy, the public interest, and bonding. Section 210.50(a)(4) provides that the Commission may receive submissions from the parties and the public on these issues. Section 210.50(b)(1) provides that the administrative law judge shall take evidence with respect to the issues of remedy and bonding, but not with respect to the public interest unless the Commission orders otherwise. The Commission proposes to amended § 210.50(b)(1) to also provide that if the Commission orders the administrative law judge to take evidence on the public interest, the administrative judge shall address the public interest in the recommended determination under § 210.42(a)(1)(ii) and that the extent of the taking of discovery by the parties shall be at the discretion of the presiding administrative law judge. The Commission proposes to add language to § 210.50(a)(4) to provide that, after the service of the recommended determination on remedy by the presiding administrative law judge, the parties are instructed to submit to the Commission within 30 days any information relating to the public interest, including any updates to the information provided in the complaint and response as required by the proposed amendments to §§ 210.12 and 210.13.

List of Subjects in 19 CFR Part 210

• Administrative practice and procedure
• Business and industry
• Customs duties and inspection
• Imports
• Investigations

For the reasons stated in the preamble, the United States International Trade Commission proposes to amend 19 CFR part 210 as follows:

PART 210—ADJUDICATION AND ENFORCEMENT

1. The authority citation for part 210 continues to read as follows:

Authority: 19 U.S.C. 1333, 1335, and 1337.

Subpart C—Pleadings

2. Amend § 210.12 by adding paragraphs (a)(12) and (k) to read as follows:

§ 210.12

The complaint.

(a) * * *

(12) Provide specific information regarding the public interest. Address how issuance of an 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. In particular,

(i) Explain how the articles potentially subject to the orders are used in the United States;

(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;

(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and

(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.

* * * * *

Publication of notice of filing. When a complaint is filed, the Secretary to the Commission will publish a notice in the Federal Register soliciting comments from the public and/or proposed respondents on any public interest issues arising from the complaint and potential exclusion and/or cease and desist orders. Members of the public and proposed respondents may provide specific information regarding the public interest in a written submission not to exceed five pages to the Secretary to the Commission within five days of publication of notice of the filing of a complaint. Members of the public and proposed respondents may address how issuance of an 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. In particular, members of the public and proposed respondents may:

(i) Explain how the articles potentially subject to the orders are used in the United States;

(ii) Identify any public health, safety, or welfare concerns in the United States relating to the potential orders;

(iii) Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and

(iv) Indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order and a cease and desist order within a commercially reasonable time.

3. Amend § 210.13 by adding a paragraph (b)(4) to read as follows:

§ 210.13

The response.

* * * * *

(b) * * *

Provide additional information on the public interest, as well as respond to the issues raised by the complaint as set forth in § 210.12(a)(12). The response may also address any comments received from members of the public with respect to the public interest pursuant to § 210.12(k).

* * * * *

Subpart G—Determinations and Actions Taken

3. Amend § 210.50 by revising paragraphs (a)(4) and (b)(1) to read as follows:

§ 210.50

Commission action, the public interest, and bonding by respondents.

* * * * *

(a) * * *

(4) Receive submissions from the parties, interested persons, and other Government agencies and departments with respect to the subject matter of paragraphs (a)(1), (a)(2), and (a)(3) of this section. After a recommended determination on remedy is certified by the presiding administrative law judge, the parties are instructed to submit to the Commission, within 30 days from service of the recommended determination, any information relating to the public interest, including any updates to the information requested by §§ 210.12(a)(12) and 210.13(b)(4). Members of the public may also submit information with respect to the public interest.

(b) * * *

(1) With respect to an administrative law judge's ability to take evidence or other information and to hear arguments from the parties and other interested persons on the issues of appropriate Commission action, the public interest, and bonding by the respondents for purposes of an initial determination on temporary relief, see §§ 210.61, 210.62, and 210.66(a). For purposes of the recommended determination required by § 210.42(a)(1)(ii), an administrative law judge shall take evidence or other information and hear arguments from the parties and other interested persons on the issues of appropriate Commission action and bonding by the respondents. Unless the Commission orders otherwise, an administrative law judge shall not take evidence on the issue of the public interest for purposes of the recommended determination under § 210.42(a)(1)(ii). If the Commission orders the administrative law judge to take evidence with respect to the public interest, the extent of the taking of discovery by the parties shall be at the discretion of the presiding administrative law judge.

* * * * *

By order of the Commission.

Issued: September 27, 2010.

Marilyn R. Abbott,

Secretary to the Commission.