[Federal Register Volume 59, Number 146 (Monday, August 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17643]


[[Page Unknown]]

[Federal Register: August 1, 1994]


_______________________________________________________________________

Part II





International Trade Commission





_______________________________________________________________________



19 CFR Parts 210 and 211



Unfair Practices in Import Trade; Final Rule
INTERNATIONAL TRADE COMMISSION

19 CFR Parts 210 and 211

 

Final Rules for Investigations and Related Proceedings Concerning 
Unfair Practices in Import Trade

AGENCY: U.S. International Trade Commission.

ACTION: Final rules.

-----------------------------------------------------------------------

SUMMARY: The Commission has adopted final rules of practice and 
procedure for investigations and related proceedings under section 337 
of the Tariff Act of 1930 (19 U.S.C. 1337).1 These rules were 
adopted in response to public comments requesting changes in the 
interim rules, the need to revise certain interim rules to more 
accurately reflect actual Commission practice, and the need for 
Commission rules concerning matters that are not currently provided for 
in the interim rules. In addition, some provisions of the final rules 
were adopted in response to public comments on the proposed rules that 
were published on November 5, 1992.

    \1\The term ``related proceeding'' is defined in final rule 
210.3, which appears elsewhere in this notice.
---------------------------------------------------------------------------

    The final rules will be codified in 19 CFR part 210 and will 
replace the interim rules that currently appear in 19 CFR parts 210 and 
211. Part 211 will be removed from title 19 of the Code of Federal 
Regulations.
EFFECTIVE DATE: August 31, 1994. The final rules will be applicable to 
all investigations and related proceedings under section 337 of the 
Tariff Act that are instituted after August 31, 1994. These rules will 
also be applicable to the following kinds of written submissions that 
are filed after August 31, 1994: complaints requesting the institution 
of a section 337 investigation; motions for temporary relief; and 
motions, complaints, or petitions requesting the institution of related 
proceedings.

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 on the 
final rules by contacting the Commission's TDD terminal at 202-205-
1810.

SUPPLEMENTARY INFORMATION:

Rulemaking Analysis

    Like the interim rules that they are replacing, the final rules are 
not major rules for purposes of Executive Order 12291 of February 17, 
1981. As required by the Regulatory Flexibility Act, the Commission 
also certifies that the final rules will not have a significant adverse 
impact on small business entities.

Background

    The current rules in parts 210 and 211 were adopted on an interim 
basis in 1988 to implement the amendments to section 337 of the Tariff 
Act of 1930 (Tariff Act) (19 U.S.C. Sec. 1337) that were effected by 
the Omnibus Trade and Competitiveness Act of 1988, Public Law No. 100-
418, 102 Stat. 1107 (1988) (Omnibus Trade Act).2 The interim rules 
in part 210 contain procedures for adjudicative investigations under 
section 337 of the Tariff Act. The interim rules in part 211 establish 
procedures for advisory opinions and the enforcement, modification, or 
revocation of remedial or consent orders issued under section 337.
---------------------------------------------------------------------------

    \2\See 53 FR 33043 (Aug. 29, 1988) and 53 FR 49118 (Dec. 6, 
1988).
---------------------------------------------------------------------------

    The final rules were promulgated in accordance with the 
Administrative Procedure Act (APA).3 A notice soliciting public 
comment on proposed final rules was published in the Federal Register 
on November 5, 1992.4 The Commission received only one set of 
comments, from the International Trade Commission Trial Lawyers 
Association (ITCTLA). The Commission took those comments into account 
before promulgating the final rules. (The ITCTLA's comments on the 
proposed rules are summarized and the Commission's responses are 
provided in the section-by-section analysis of the final rules, which 
appears elsewhere in this notice.5)
---------------------------------------------------------------------------

    \3\ 5 U.S.C. Sec. 553.
    \4\ 57 FR 52830 (Nov. 5, 1992).
    \5\ The ITCTLA's comments included (1) suggestions for revising 
various proposed rules, (2) expressions of the ITCTLA's approval of 
certain proposed rules, (3) identification of typing errors in 
certain proposed rules, and (4) suggestions for nonsubstantive 
editing. All ITCTLA comments were duly considered by the Commission 
before it decided on the content of the final rules. For the most 
part, however, the section-by-section analysis of the final rules in 
this notice focuses on ITCTLA comments which advocated revision of 
particular proposed rules.
---------------------------------------------------------------------------

    Interested persons will note that each final Commission rule based 
on Rule 11, 26, or 37 of the Federal Rules of Civil Procedure (FRCP) 
differs from the correspondingly numbered proposed Commission rule that 
was published on November 5, 1992. The FRCP were amended on December 1, 
1993.6 The amendments covered FRCP provisions that the Commission 
is required by law to follow (such as FRCP 11 and 37), as well as some 
that the Commission has chosen to follow (FRCP 26(e) and (g)). The 
Commission accordingly revised the relevant proposed rules to 
correspond to the FRCP amendments, before adopting the proposed rules 
as final rules.
---------------------------------------------------------------------------

    \6\146 Federal Rules Decisions 401-728 (1993).
---------------------------------------------------------------------------

    The Commission noted that the APA does not require that the exact 
text of a proposed rule be published for comment before the proposed 
rule is adopted as a final rule. A description of the subject and 
issues involved in the rule is sufficient.7 The Commission 
concluded that the notice of proposed final rulemaking published on 
November 5, 1992, contained a description of the subjects and issues 
involved that was sufficient to cover the revised provisions.89
---------------------------------------------------------------------------

    \7\The APA states that a notice of proposed rulemaking shall 
include ``either the terms or substance of the proposed rule or a 
description of the subjects and issues involved.'' 5 U.S.C. 
Sec. 553(b)(3) [emphasis added].
    \8\In that notice, the preamble to each of the proposed rules at 
issue--namely, proposed rule 210.4(b), 210.25, 210.27(c) and (d), 
210.33(c), and 210.70(c)--provided a description of the subject 
matter and the issues involved. See 57 FR at 52831-52832, 52840, 
52843, and 52861.
    For example, the preamble to proposed rule 210.25 indicated that 
the text of that rule was based on the content of proposed final 
rules 210.4(b), 210.27(d), 210.33(c), and 210.34(c). Id. at 52840. 
The preamble to proposed rules 210.70(c) indicated that the text of 
that rule was based in part on the content of proposed final rule 
210.4(b). Id. at 52861.
    The preamble to proposed rules 210.4(b), 210.27(d), and 
210.33(c) alerted interested persons that those rules had been 
specifically drafted to correspond to the FRCP 11, 26(g), and 37, 
respectively. See 57 FR at 52831-52832, 52840, 52842-52843. 
Similarly, the preamble to proposed final 210.70(c) advised the 
public that the Commission intended for that rule to incorporate (by 
reference) the standard of conduct imposed by FRCP 11. Id. at 52860-
52861.
    The preamble to proposed rule 210.27(c) noted that rule was 
based on FRCP 26(e). 57 FR at 52840. (Proposed rule 210.27(c) is the 
same as interim rule 210.30(d) and its predecessor, 19 CFR 210.30(d) 
(1988).) The text of proposed rule 210.27(c) (and its predecessors) 
came directly from FRCP 26(e), as it read prior to December 1, 1993.
    In the case of proposed rules 210.4(b) and 210.33(c), the 
preamble also noted that 19 U.S.C. Sec. 1337(h) requires the 
Commission to follow FRCP 11 and 37 in the promulgation of 
Commission rules governing sanctions for abuse of process or ``abuse 
of discovery'' (i.e., failure to make or cooperate in discovery, as 
described in FRCP 37). 57 FR at 52831-52832 and 52842-52843.
    \9\The discussion in the present notice focuses on the 
differences between the proposed rules and the final rules. For the 
most part, this notice does not discuss the substance of--or the 
reasons for--the FRCP amendments. Persons who are interested in the 
FRCP amendments and the reasons therefor should consult 146 Federal 
Rules Decisions 401-728 (1993) and the 1993 Committee Notes to the 
FRCP.
---------------------------------------------------------------------------

Overview of the Final Rules

    Interested persons will note first that the organization of the 
final rules differs from that of the interim rules. To enable readers 
to readily determine which final rule is replacing a particular interim 
rule or which interim rule is the basis, in whole or part, for a 
particular final rule, the Commission has provided distribution and 
derivation tables elsewhere in this notice.
    The final rules also differ substantively from the interim rules in 
many respects. New and noteworthy aspects of the final rules are 
summarized below, according to the subpart in which they appear.
    Subpart A--Rules of General Applicability. Provisions based on 
amended FRCP 11 permit the Commission to impose monetary sanctions for 
abuse of process. Also included are new specifications for written 
submissions and prescribed deadlines for filing nonconfidential copies 
of certain confidential submissions.
    Subpart B--Commencement of Preinstitution Proceedings and 
Investigations. Parties may be allowed to assist the Commission in 
obtaining personal jurisdiction over a nonparticipating respondent. If 
the Commission Secretary is unable to obtain proof that copies of the 
complaint and notice of investigation were served on a particular 
respondent by certified mail, a party who wishes the Commission to have 
personal jurisdiction over that respondent may attempt to make personal 
service on that respondent, with leave from the presiding 
administrative law judge (ALJ), and may file proof of such service with 
the Commission Secretary (if the attempt is successful).
    Subpart C--Pleadings. The complainant has a duty to supplement the 
complaint if a change in a material pleaded fact or law occurs after 
the complaint is filed and before the investigation is instituted.
    Subpart D--Motions. Default will be limited to the statutory 
grounds: (1) a respondent's failure to properly respond to the 
complaint and notice of investigation or failure to otherwise appear to 
answer the complaint and notice;10 or (2) a finding of default as 
a sanction for abuse of process or failure to make or cooperate in 
discovery.11 Failures to act other than the statutory forms of 
default may result in adverse inferences and the issuance of findings 
of fact, conclusions of law, determinations, and orders adverse to the 
party who failed to act. This applies to complainants as well as 
respondents, and can ultimately result in adverse determinations on 
violation of section 337 and the issuance of remedial orders.
---------------------------------------------------------------------------

    \1\0See 19 U.S.C. Sec. 1337(g)(1).
    \1\1See 19 U.S.C. Sec. 1337(h).
---------------------------------------------------------------------------

    The final rules in subpart D also provide that the permanent relief 
phase of an investigation may be designated ``more complicated'' by 
order of the presiding ALJ or the Commission. The ALJ's order is final, 
but aggrieved party may appeal to the Commission. The timing of the 
order determines the procedure for appeal.
    Subpart E--Discovery and Compulsory Process. Most of the final 
rules in subpart E do not provide deadlines for various discovery 
activities. Such deadlines are to be set by the presiding ALJ. The 
final rules in subpart E also correspond more closely to the relevant 
FRCP than the interim rules did.
    A signature and certification requirement based on FRCP 26(g) is 
imposed for all discovery requests, responses, and objections. Monetary 
sanctions may be imposed for violation of that requirement. Monetary 
sanctions comparable to those available under certain provisions of 
FRCP 37 may be imposed for failure to make or cooperate in discovery.
    There also is a new reporting requirement concerning requests for 
disclosure of confidential information covered by an administrative 
protective order (APO) issued by the Commission or the presiding ALJ. 
Persons who receive such information under an APO must notify the 
Commission immediately upon learning that the information is the 
subject of a subpoena, a judicial or administrative order (other than 
an order of a court reviewing a Commission decision), a discovery 
request, or an agreement requiring disclosure of the information to 
persons who may not be entitled to see it under the Commission's APO or 
the Commission's rules. A failure to report may result in a sanction or 
other action by the Commission.
    Subpart F--Prehearing Conferences and Hearings. The final rules in 
subpart F are essentially the same as the interim rules. However, the 
final rule defining the record codifies longstanding Commission 
practice by including all briefs as part of the administrative record 
of an investigation or a related proceeding.
    Subpart G--Determinations and Actions Taken. The ALJ must issue a 
recommended determination (RD) on remedy and bonding by the 
respondents, within 14 days after issuing an initial determination (ID) 
on violation of section 337. (This means that the parties will address 
remedy and bonding while the investigation is before the ALJ, as well 
as after the investigation returns to the Commission. The ALJ 
accordingly may order discovery on those issues.) The Commission will 
consider the RD (as well as submissions from the parties, other 
agencies, and the public) in making final determinations on remedy and 
bonding by the respondents.
    The proposed rules published on November 5, 1992, contained a new 
procedure for processing IDs on violation of section 337. That 
procedure has not been incorporated into the final rules. IDs on 
violation will be processed in the same manner that they were processed 
under the interim rules, although the Commission may decide to 
implement the new procedure at a future date. IDs on matters other than 
violation of section 337 (or temporary relief) will also be processed 
in the manner that they were processed under the interim rules.
    Subpart H--Temporary Relief. There is a new method of calculating 
the amount of a complainant's temporary relief bond. The interim rules 
provided that the bond was likely to be an amount within 10 to 100 
percent of the sales revenues and licensing royalties from the domestic 
product at issue. The final rules use a tiered schedule of fixed bond 
amounts based on complainant's sales revenues and licensing royalties 
from the intellectual property right at issue.
    The grounds for modifying, reversing, or setting aside a temporary 
relief ID in whole or part are no longer limited to errors of law or 
policy reasons. Such action also may be taken on the basis of errors of 
material fact in the ID.
    Temporary relief bond forfeiture proceedings will no longer be 
initiated automatically whenever the Commission makes a negative final 
determination in whole or part on the complaint of a complainant who 
was granted temporary relief. Instead, forfeiture proceedings will be 
initiated only upon the Commission's own initiative or upon the filing 
of a motion by a respondent or a Commission investigative attorney (IA) 
within 30 days after service of the Commission's negative determination 
on violation. The standard of conduct the Commission will use in 
determining whether the complainant's bond should be forfeited will be 
the amended FRCP 11 standard which is codified in final rule 210.4(c).
    If the complainant prevails upon appeal of the Commission's 
determination on violation of section 337, the appropriate amount of 
any temporary bond that was forfeited by the complainant will be 
forthcoming as a matter of procedure. The complainant thus will not 
have to file a motion or petition to obtain the refund.
    Subpart I--Enforcement Procedures and Advisory Opinions. Reporting 
requirements may be imposed for exclusion orders as well as cease and 
desist orders. Moreover, formal proceedings for the enforcement of a 
remedial or consent order may be instituted on the Commission's own 
initiative or in response to the filing of a complaint by the 
complainant in the original investigation, the complainant's successor 
in interest (if any), or the Commission's Office of Unfair Import 
Investigations (OUII). An ALJ's decision in a formal enforcement 
proceeding must be an ID instead of an RD. The ID will become the 
determination of the Commission in 90 days if the Commission does not 
order a review or extend the period for determining whether to order a 
review.
    The final rules in subpart I also clarify that the Commission has 
the authority to seek judicial enforcement of sanctions orders, and 
that the Commission need not give notice to any person when it seeks 
judicial enforcement of an exclusion order, a cease and desist order, a 
consent order, or a sanctions order--except as required by the court in 
which the civil action is initiated.
    Finally, the final rules governing advisory opinions codify 
Commission practice by: (1) affording all persons (instead of just 
respondents) the right to seek such opinions; (2) limiting such 
opinions to whether a course of action would violate a particular 
remedial order (rather than whether it would violate section 337); (3) 
requiring the party requesting an advisory opinion to fully state its 
request in its first submission to the Commission, since the Commission 
does not wish to issue seriatim advisory opinions to the same requester 
on the same subject; and (4) stating positively that advisory opinion 
proceedings are not subject to the APA.

Section-By-Section Analysis of the Final Rules

    Many of the final rules set forth in this notice are identical--or 
virtually identical12--to the correspondingly numbered proposed 
rules published on November 5, 1992. Those final rules are listed 
below.

    \1\2 Nonsubstantive editorial changes account for minor 
differences between some of the final rules and the correspondingly 
numbered proposed rules.
---------------------------------------------------------------------------

210.1-210.3
210.5-210.9
210.10(b) and (c)
210.11-210.15
210.16(a), (b), and (c)(2)
210.17-210.20
210.21(a)-(c)(3) and (d)
210.22(a) and (c)
210.23
210.24(a)(1), (a)(3), (b)(1), (b)(3), and (c)
210.26
210.27(a)
210.28 and 210.29
210.30(a) and (c)
210.31
210.32(a)-(d), (f), and (g)
210.34
210.35(a)-(c)
210.36(a)-(c) and (e)
210.37(a), (c), (d), (f) and (g)
210.38(b)-(d)
210.39-210.41
210.42(a)(2), (b), (c), (e)-(g), (h)(3)-(h)(5), and (i)
210.43(a), (c), and (d)
210.46(b)
210.47-210.49
210.50(b)(1) and (2)
210.51
210.52(b)-(d) and (f)
210.53 and 210.54
210.55(a)
210.56-210.57
210.59-210.69
210.70(a), (b) and (e)
210.71(b)-(d)
210.72 and 210.73
210.74(b)
210.75(a) and (b)
210.76-79

    The ITCTLA did not make substantive comments on the proposed 
version of each of the aforesaid rules, and the Commission found no 
reason to change the proposed version on its own initiative before 
adopting it as a final rule. The commentary that preceded the proposed 
version of the aforesaid rules accordingly constitutes the preamble to 
the final version of those rules.13
---------------------------------------------------------------------------

    \1\3 See the section-by-section analysis of the proposed rules, 
which appeared in 57 FR at 52830-52864.
---------------------------------------------------------------------------

    Most of the final rules that are discussed below were the subject 
of a comment by the ITCTLA. The substance of some of those rules also 
differs substantively from the text of the relevant proposed rule. The 
changes were made in response to an ITCTLA comment or on the 
Commission's own initiative after reconsideration of the proposed rule.
    The commentary in the notice published on November 5, 1992, which 
preceded the proposed version of the rules discussed below, constitutes 
part of the preamble to the final version of these rules (along with 
the discussion below), to the extent that such commentary is not 
inconsistent with the discussion below.14
---------------------------------------------------------------------------

    \1\4Id.
---------------------------------------------------------------------------

Subpart A--Rules of General Applicability

Section 210.4
    Final rule 210.4 governs written submissions filed by parties or 
proposed parties in connection with a section 337 investigation or a 
related proceeding under part 210.
    Paragraph (a). Paragraph (a) of proposed rule 210.4 listed the 
required information that must appear on the front of written 
submissions filed in connection with a section 337 investigation. The 
ITCTLA commented that the final rule should also provide that the front 
page of a complaint must contain the name of the complainant. The 
Commission noted that Commission rule 201.8(e) already imposes such a 
requirement.15 The Commission has repeated that requirement, 
however, in paragraph (a)(1) of final rule 210.4.
---------------------------------------------------------------------------

    \1\5See 19 CFR 201.8(e) (1993).
---------------------------------------------------------------------------

    Paragraph (b). Section 337(h) of the Tariff Act authorizes the 
Commission to issue sanctions for abuse of process in section 337 
proceedings to the extent provided in FRCP 11.16 Proposed rule 
210.4(b) was the Commission analog to FRCP 11, and was based on FRCP 
11(a) as it read prior to December 1, 1993.
---------------------------------------------------------------------------

    \1\619 U.S.C. Sec. 1337(h).
---------------------------------------------------------------------------

    On December 1, 1993, FRCP 11 was amended for the following 
purposes:

     to broaden the scope of the obligation that attorneys 
and pro se litigants have to refrain from conduct that frustrates 
the aims of FRCP 11 as amended (i.e., to secure the just, speedy, 
and inexpensive determination of every action);
     to place greater restraints on the imposition of 
sanctions and thus reduce the number of motions for sanctions; and
     to remove from the ambit of FRCP 11 all discovery 
requests, responses, objections, and motions that are subject to the 
provisions of FRCP 26-37.17

    \1\7See 146 F.R.D. 583, 584, and 405.
---------------------------------------------------------------------------

    Paragraph (b) of final rule 210.4, is based on amended FRCP 11(a), 
and imposes a signature requirement for every written submission filed 
by a party or a proposed party to an investigation or a related 
proceeding under part 210. This paragraph replaces the signature 
requirement in paragraph (b)(1) of proposed rule 210.4, which was based 
on FRCP 11(a) as it read prior to December 1, 1993. Unlike the proposed 
rule, the final rule makes the signature requirement applicable to 
``every pleading, written motion, and other paper of a party or 
proposed party.'' [Emphasis added.]
    The ITCTLA commented that paragraph (b) of the final rule should 
also provide that the telephone number of the attorney or party who 
signs each submission must be included on the document. The Commission 
agreed. Such a requirement appears in amended FRCP 11(a), and thus 
appears in paragraph (b) of final rule 210.4.
    Paragraph (c). Paragraph (c) of final rule 210.4 is based on 
amended FRCP 11(b). Paragraph (c) states that by presenting a pleading, 
written motion, or other paper to the presiding ALJ or the Commission, 
an attorney or unrepresented party or proposed party is certifying the 
truth, veracity, and good faith of the submission. This paragraph 
replaces the certification provision in paragraph (b)(1) of proposed 
rule 210.4, which was based on FRCP 11 as it read prior to December 1, 
1993. The final rule differs from the proposed rule in several 
important respects.
    First, the certification is not made solely by signing a pleading, 
written motion, or other paper. In the final rule, the certification 
occurs in the presentation of a pleading, written motion, or other 
paper to the presiding ALJ or the Commission, whether that presentation 
is by signing, filing, submitting, or later advocating the document to 
the ALJ or the Commission.
    Second, the certification provisions are more explicit in the final 
rule. Separate standards are provided for legal arguments, for 
``allegations and other factual contentions,'' and for ``denials of 
factual contentions.''
    Third, the certification provisions of the final rule do not apply 
to discovery requests, responses, objections, or motions that are 
subject to provisions of final rules 210.27 through 210.34 (i.e., 
Subpart E--Discovery and Compulsory Process).18
---------------------------------------------------------------------------

    \1\8The certification requirement in amended FRCP 11(c) also 
does not apply to the ``disclosures'' mandated by amended FRCP 26. 
Final rule 210.27--which is the Commission analog to amended FRCP 
26--does not currently contain provisions on mandatory disclosures. 
See the discussion in this notice concerning final rule 210.27.
---------------------------------------------------------------------------

    Paragraph (d). Paragraph (d) of final rule 210.4 provides sanctions 
for violation of the certification requirement, and is based on amended 
FRCP 11(c). This paragraph replaces paragraphs (b)(1) through (b)(4) of 
proposed rule 210.4, which were based on FRCP 11(a) as it read prior to 
December 1, 1993.
    Paragraph (d) of final rule 210.4 is similar to paragraph (b)(2) of 
proposed rule 210.4, since paragraph (d) provides that a representation 
need not be frivolous in its entirety in order for an ALJ or the 
Commission to determine that the certification provision has been 
violated. If any portion of a representation is found to be false, 
frivolous, misleading, or otherwise in violation of paragraph (b), a 
sanction may be imposed. In determining whether paragraph (b), has been 
violated, the ALJ or the Commission will consider whether the 
representation or disputed portion thereof was objectively reasonable 
under the circumstances.
    Paragraph (d)(1)(i) of final rule 210.4 contains new prerequisites 
to the filing of a motion for sanctions. The movant must first serve 
the motion on the nonmoving parties. The party or person against whom 
sanctions are being sought then has seven days (or such other period as 
the ALJ or the Commission may prescribe) to withdraw or correct the 
challenged paper, claim, defense, contention, allegation, or 
denial.\19\ If withdrawal or correction does not occur within the 
prescribed period, the movant is then free to file the motion for 
sanctions. The motion must be filed separately, however, from the 
party's other motions (if any).
---------------------------------------------------------------------------

    \19\Amended FRCP 11(c)(1)(A) allows 21 days for such withdrawals 
or corrections. The Commission concluded, however, that 21 days is 
too lengthy a period for investigations and related proceedings 
under part 210, in light of the statutory and/or administrative time 
constraints.
---------------------------------------------------------------------------

    Paragraph (d)(1)(ii) of final rule 210.4 provides that an ALJ or 
the Commission may initiate a sanctions inquiry sua sponte, by issuing 
an order describing the specific conduct that appears to violate the 
certification provisions and directing an attorney, law firm, or party 
to show cause why it has not violated the relevant provisions.
    The final rule also contains new provisions governing the 
imposition of sanctions. The stated purpose of the FRCP 11 sanctions 
authority is to deter, rather than to compensate.\20\ That policy is 
recited in paragraph (d)(2) of final Commission rule 210.4, since 
section 337(h) of the Tariff Act states that the Commission may impose 
sanctions for abuse of process to the extent authorized in FRCP 11. 
Paragraph (d)(2) of final rule 210.4 thus provides that each sanction 
must be limited to ``what is sufficient to deter repetition of such 
conduct or comparable conduct by others similarly situated.'' Sanctions 
may be imposed upon the attorneys, law firms, or parties that have 
violated the certification provisions of paragraph (b) or are 
responsible for the violation. (Paragraph (d)(1)(i) of final rule 210.4 
provides that in the absence of exceptional circumstances, a law firm 
is jointly responsible for violations committed by its partners, 
associates, and employees.)
---------------------------------------------------------------------------

    \20\FRCP 11(c)(2), as amended; 146 F.R.D. at 422-423. See also 
146 F.R.D. at 587-588.
---------------------------------------------------------------------------

    Paragraph (d)(2) of the final rule also imposes certain limitations 
on the kinds of sanctions that may be imposed. Appropriate sanctions 
may consist of or include ``directives of a nonmonetary nature.''\21\ 
The preferred monetary sanction is the payment of a penalty to the 
Commission, rather than costs and attorney's fees. Cost and fee 
sanctions may be ordered, however, ``if imposed on motion and warranted 
for effective deterrence.'' Paragraph (d)(2) also indicates that a cost 
and fee award may consist of ``some or all'' of the reasonable 
attorney's fees and other expenses incurred as a direct result of a 
violation of the certification provisions.\22\
---------------------------------------------------------------------------

    \21\The Committee Notes to FRCP 11 as amended cite the following 
examples: ``striking the offending paper; issuing an admonition, 
reprimand, or censure; requiring participation in seminars or other 
educational programs; * * * referring the matter to disciplinary 
authorities (or, in the case of government attorneys, to the 
Attorney General, Inspector General, or agency head), etc.'' See 146 
F.R.D. at 587.
    \22\That provision is based on amended FRCP 11(c)(2), 146 F.R.D. 
at 423. See also 146 F.R.D. at 587-589. The Commission notes that 
the relevant provisions of FRCP 11(c)(2) specifically state that 
costs and attorney's fees are to be awarded ``to the movant.'' FRCP 
11(c)(1)(A) and the Committee Notes indicate, however, that such 
awards can be made to the party who prevails on the motion for 
sanctions--regardless of whether that party is the movant or the 
target of the motion. 146 F.R.D. at 422 and 591.
---------------------------------------------------------------------------

    There are additional limitations on the Commission's ability to 
impose monetary sanctions. Paragraph (d)(2)(ii) of final rule 210.4 
states that monetary sanctions cannot be imposed on a party for 
violation of the certification provisions concerning the truth, 
veracity, and good faith of legal arguments presented to the ALJ or the 
Commission. (The party's attorneys are to be monetarily responsible for 
violations of that sort.) Paragraph (d)(2)(iii) provides that monetary 
sanctions also cannot be ordered on the Commission's own initiative, 
unless--

    1. a show cause order was issued before the investigation or 
related proceeding is terminated, in whole or relevant part, as to 
the party or proposed party which is, or whose attorneys are, to be 
sanctioned; and
    2. such termination is the result of (a) a motion to withdraw 
the complaint, motion, or petition that was the basis for the 
investigation or related proceeding, (b) a settlement agreement, or 
(c) a consent order agreement.\23\

    \23\This provision is based on amended FRCP 11(c)(2)(B), which 
provides that monetary sanctions may not be awarded on the court's 
initiative unless the court issues its order to show cause before a 
voluntary dismissal or settlement of the claim made by or against 
the party which is, or whose attorneys are, to be sanctioned. The 
Committee Notes explain that--Parties settling a case should not be 
subsequently faced with an unexpected order from the court leading 
to monetary sanctions that might have affected their willingness to 
settle or voluntarily dismiss a case. Since show cause orders will 
ordinarily be issued only in situations that are akin to a contempt 
of court, this rule does not provide a `safe harbor' to a litigant 
for withdrawing a claim, defense, etc., after a show cause order has 
been issued on the court's own initiative. Such corrective action, 
however, should be taken into account in deciding what if any 
sanction to impose if, after consideration of the litigant's 
response, the court concludes that a violation has occurred. 146 
F.R.D. at 592.
---------------------------------------------------------------------------

    Furthermore, the sanctions in such a case must be limited to a 
penalty payable to the Commission.\24\
---------------------------------------------------------------------------

    \24\Although this provision authorizes the Commission or the ALJ 
to issue an order requiring payment of a monetary penalty, the 
Commission may collect the money but cannot keep it. In the absence 
of a statute providing otherwise, an official or agent of the United 
States Government having custody or possession of ``public money'' 
that is not for current expenditure must promptly deposit it into 
the Treasury or a depository designated by the Secretary of the 
Treasury without deduction for any charge or claim. 31 U.S.C. 
Sec. 3302. The term ``public money'' is not defined in that statute. 
The regulations implementing that provision specifically refer, 
however, to a federal agency's processes for the collection of 
``monies owed to or received by'' the agency and for the expeditious 
crediting and availability of such monies to the Treasury. See 31 
CFR 206.4(a) (1993). These regulations would appear to cover a 
monetary penalty payable to the Commission pursuant to a sanction 
order issued under paragraph (d)(1)(A) of final rule 210.4.
---------------------------------------------------------------------------

    Paragraph (d)(2)(i) of final rule 210.4 states that the United 
States, the Commission, and IAs are exempt from monetary sanctions for 
signing and filing a written submission in violation of the 
certification provision of paragraph (b).
     Paragraph (d)(2)(iv) provides that monetary sanctions imposed to 
compensate the Commission for expenses incurred by an IA or OUII will 
include reimbursement for some or all costs reasonably incurred as a 
direct result of the violation, but will not include attorneys' fees. 
Paragraph (d)(2)(iv) thus covers cases in which OUII is awarded 
monetary sanctions on the basis of a motion by OUII, as well as cases 
in which OUII is found to be entitled to monetary sanctions because it 
successfully defended against another party's motion for nonmonetary 
sanctions.
    The ITCTLA noted that an IA is a party to a section 337 
investigation, that he or she is subject to the same professional and 
ethical standards as members of the private bar, and that there is no 
basis to assume, as proposed rule 210.4(b)(3) does, that IAs are less 
likely to engage in unethical conduct than are members of the private 
bar. The ITCTLA argued further that since the Commission has the 
authority to self-initiate section 337 investigations, exempting IAs 
from monetary sanctions for abuse of process would deny respondents in 
such investigations the rights that would be available to respondents 
in investigations initiated in response to the complaint of a private 
party.
    The ITCTLA added that it is fundamentally unfair to exempt IAs from 
cost and fee sanctions for violations of rule 210.4(b)1(1), but allow 
them to recover costs for violations by other parties. The ITCTLA urged 
the Commission either to subject IAs to liability for monetary 
sanctions or to draft the final rules to prohibit IAs from receiving 
monetary compensation for violations by other parties.
    The Commission disagrees with the ITCTLA's arguments. The 
Commission notes first that any monetary sanction constituting 
reimbursement for costs incurred by an IA as a result of another 
party's abuse of process would be paid to the Commission--not to the IA 
or OUII. (Similarly, if the Commission were to abandon the rule 
exempting IAs from liability for monetary sanctions, any such sanction 
imposed against an IA for an action taken within the scope of his or 
her employment would probably be paid by the Commission.)
    Furthermore, the amount that the Commission would collect on an 
IA's behalf as a sanction for abuse of process by another party is not 
likely to be substantial. Paragraph (d) of final rule 210.4 indicates 
that a sanction imposed for violation of this section shall be limited 
to what is sufficient to deter repetition of such conduct or comparable 
conduct by others similarly situated, and that a penalty rather than 
costs and attorney's fees is the preferred monetary sanction. Moreover, 
paragraph (d)(2)(iv) provides that monetary sanctions awarded on motion 
by an IA or OUII will include reimbursement for some or all costs 
reasonably incurred by the movant as a direct result of the violation, 
but will not include attorneys' fees (i.e., OUII's personnel costs). 
The Commission is thus not likely to recover substantial sums (on an 
IA's or OUII's behalf) in the application of final rule 210.4.
    The Commission also believes that a rule permitting monetary 
sanctions to be levied against IAs is unnecessary. As amended FRCP 11 
and the Committee Notes indicate, the sanction authority is to deter 
abuses of process, rather than to compensate persons aggrieved by such 
abuses.\25\ IAs are subject to adverse personnel action for malfeasance 
or misconduct involving abuse of process in the performance of their 
duties. The Commission believes that the threat of such action is an 
effective and sufficient deterrent.
---------------------------------------------------------------------------

    \25\Amended FRCP 11(c)(2); 146 F.R.D. at 422-423. See also 146 
F.R.D. at 587-588. See also the Committee Notes to the 1983 
Amendment, which indicate that the imposition of sanctions under 
FRCP 11 is to ``discourage dilatory or abusive tactics and help to 
streamline the litigation process by lessening frivolous claims and 
defenses.'' The Commission notes further that one of the reasons 
that FRCP 11 was amended on December 1, 1993, was to place greater 
restraints on the imposition of sanctions and thus reduce number of 
motions for sanctions. See 146 F.R.D. 583, 584, and 405.
---------------------------------------------------------------------------

    The Commission also notes that subjecting IAs to monetary sanctions 
could have serious programmatic implications. The threat of monetary 
sanctions for actions taken in the course of an IA's ordinary duties 
would affect his or her ability to serve as a neutral and impartial 
advocate of the public interest. IAs take positions on the substantive 
issues in an investigation. An IA's position in a given investigation 
may be adverse to one or more of the private parties (i.e., the 
complainant(s), the respondent(s), and/or any non-government 
intervenor(s)). The actual or potential threat of a motion for monetary 
sanctions during the course of an investigation or related proceeding 
could be used as a means to intimidate IAs and to pressure them into 
taking a position favorable to a particular party.
    The Commission notes further that the resources that IAs can devote 
to a particular investigation or related proceeding are limited. If IAs 
are forced to deal with motions for monetary sanctions against them, 
their ability to deal with the substantive issues in the case would be 
impaired.
    The Commission notes finally that adopting a final rule which does 
not exempt IAs (and other Commission employees) to liability for 
monetary sanctions would create certain ethical and practical problems 
for the Commission. For example, Commission determinations on whether 
to assess monetary penalties against a Commission employee would raise 
a number of conflict of interest issues. If an ALJ were to issue an 
order or an RD granting a motion for monetary sanctions, that decision 
would be subject to review by the Commission, even though the 
Commission itself might ultimately be responsible for paying the amount 
awarded.\26\ Thereafter, if the Commission did not indemnify the IA or 
otherwise pay the amount awarded, the Commission might have to bring an 
enforcement action in U.S. district court against one of its own 
employees in order to collect the award.\27\
---------------------------------------------------------------------------

    \26\See final rule 210.25 regarding the processing of motions 
for monetary sanctions for abuse of process.
    \27\It is also possible that the IA might be entitled to 
independent legal representation at the Commission's expense.
---------------------------------------------------------------------------

    In view of the aforesaid legal and policy arguments against 
subjecting the Commission and its attorneys from liability for monetary 
sanctions for abuse of process, the Commission has drafted paragraph 
(d)(2)(i) of final rule 210.4 to exempt the Commission, its employees, 
and the United States from liability for such sanctions.
    Paragraph (d)(3) of final rule 210.4 is based on amended FRCP 
11(c)(3). Paragraph (d) thus provides that when sanctions are imposed, 
the Commission or the ALJ must describe the conduct determined to 
constitute a violation of 210.4(b) certification provision and must 
explain the basis for the sanction imposed.
    Paragraph (e). Paragraph (e) of final rule 210.4 is based on 
amended FRCP 11(d). Paragraph (e) provides that paragraphs (b) through 
(d) of final rule 210.4 do not apply to discovery requests, responses, 
objections, or motions that are subject to provisions of sections 
210.27 through 210.34.\28\ (Certification standards and sanctions that 
apply to discovery requests, responses, objections, or motions are 
found in final rule 210.27(d).)
---------------------------------------------------------------------------

    \28\Amended FRCP 11(d) also states that amended FRCP 11 does not 
apply to ``disclosures'' covered by amended FRCP 26 and 37. Final 
rules 210.27 and 210.33--which are the Commission analogs to amended 
FRCP 26 and 37--do not currently contain provisions on mandatory 
disclosures. See the discussion in this notice concerning final 
rules 210.27 and 210.33.
---------------------------------------------------------------------------

    Paragraph (f). Paragraph (f) of final rule 210.4 is based on 
paragraph (c) of proposed rule 210.4, which imposed specifications and 
other requirements for written submissions in section 337 
investigations.
    Paragraph (f)(1)(i) of proposed rule 210.4 is based on paragraph 
(c)(1)(i) of proposed rule 210.4, which contained spacing and print-
size requirements for written submissions that are addressed to the 
Commission in a section 337 investigation or a related proceeding. As 
the preamble to the proposed rule explained,29 the Commission is 
of the view that spacing and print-size requirements are necessary and 
appropriate to prevent evasion of the intended effect of the page 
limitations in proposed rules 210.66 (c) and (e)(2) by utilizing 
unusually small spacing in submissions.30 The specific 
requirements imposed in paragraph (c)(1)(i) of proposed rule 210.4 were 
identical to those applied to briefs filed in the U.S. Court of Appeals 
for the Federal Circuit (Federal Circuit) in appeals from Commission 
determinations under section 337.31,32
---------------------------------------------------------------------------

    \2\957 FR at 52832.
    \3\0See, e.g., Inv. No. 337-TA-304, Certain Pressure 
Transmitters (Commission denied motion to strike respondent's 
abnormally-spaced written comments on the ID concerning temporary 
relief, as the interim rules did not impose spacing requirements).
    \3\1See Fed. Cir. R. 32(a) (1990).
    \3\2The specifications in paragraph (c)(1)(i) of proposed rule 
210.4 did not apply to written submissions that are addressed to an 
ALJ. Paragraph (c)(1)(ii) of proposed rule 210.4 allowed the ALJ to 
impose any specifications he deems appropriate for written 
submissions addressed to the ALJ.
---------------------------------------------------------------------------

    Paragraph (f)(1)(i) of the final rule contains an additional 
provision. The Federal Circuit rule in question now provides that 
``[t]ext and footnotes shall be in the same size type.''33 The 
Commission accordingly has inserted that requirement in paragraph 
(f)(1) of final rule 210.4. Requiring text and footnotes to be in the 
same size type will aid in preventing evasion of the intended effect of 
the page limitations in proposed rules 210.66 (c) and (e)(2) by 
utilizing unusually small spacing in footnotes.
---------------------------------------------------------------------------

    \3\3See Fed. Cir. R. 32(a) (effective June 1, 1993).
---------------------------------------------------------------------------

    Paragraph (f)(3) of final rule 210.4 is based on paragraph (c)(3) 
of proposed rule 210.4. The proposed rule provided that if certain 
specified types of submissions contain confidential business 
information, the submitter must file and serve nonconfidential copies 
of the submission within 10 business days after filing the confidential 
version of the submission.
    The ITCTLA commented that the prescribed filing period for 
nonconfidential copies should be shortened to five days. The ITCTLA 
explained that in order to obtain information and assistance in 
preparing responses to pleadings, motions, and other papers in a 
section 337 investigation, an attorney often needs to show the document 
in question to persons who are employed by the party the attorney 
represents but are not signatories to the Commission's APO. In the 
ITCTLA's opinion, a Commission rule imposing a 10-business day filing 
deadline for sanitized copies of confidential submissions would prevent 
the attorney from doing this, since the public version of the document 
in question would not be available until after a response is 
due.34 The ITCTLA thus believed that having a 10-day deadline for 
the submission of nonconfidential copies of confidential pleadings, 
motions, and other papers would seriously impair the party's ability to 
prepare an adequate response.
---------------------------------------------------------------------------

    \3\4Responses to motions, for example, are generally due within 
10 calendar days after service of the motion. See proposed rule 
210.15(c) and final rule 210.15(c).
---------------------------------------------------------------------------

    The Commission believes that several factors militate against 
reducing the prescribed filing period to five days. It may be 
particularly difficult, for example, for parties with limited resources 
to comply with a five-day deadline. Moreover, in a case where 
consultation with opposing parties or third parties is necessary in 
order to prepare the nonconfidential copies of particular confidential 
submissions, it may be difficult for any party to meet such a deadline, 
even if the party has substantial resources.
    While the ITCTLA's concerns about consultation with clients who can 
only see public versions has merit, the Commission also notes that 
there are many important submissions (such as petitions for review or 
responses to petitions for review) that must be filed within five days 
after service or issuance of a particular document. Thus, in many 
instances, the filing of a public version on the fifth day will not 
allow for consultation in advance of the preparation of the submission 
due on that date. Additionally, the Commission is concerned that the 
shorter the time afforded to create public versions, the more likely it 
will be that such public versions will be characterized by wholesale 
redactions that will not facilitate consultation with those who are not 
signatories to the APO, and that requests for extensions of time will 
be numerous.
    The Commission accordingly has not adopted a five-day filing period 
for mandatory nonconfidential copies of certain confidential 
submissions. Paragraph (f) of final rule 210.4 does provide, however, 
that the prescribed period for filing such copies is 10 calendar days 
(instead of 10 business days).
    The last aspect of proposed rule 210.4 that elicited comments from 
the ITCTLA was paragraph (c)(3), which listed the kinds of confidential 
submissions that are subject to the mandatory nonconfidential copy 
requirement. Item (iv) on that list was ``the evidentiary record,'' 
i.e., ``the exhibits offered by a party or a proposed party that are 
accepted as evidence of record.''
    The ITCTLA objected to item (iv). The ITCTLA noted that the 
evidentiary record in section 337 investigations is often quite 
voluminous. In such a case, the process of reviewing, redacting, and 
copying of the redacted parts of the record would be extremely 
expensive and burdensome, and may result in the production of documents 
that are virtually incomprehensible as a result of the redactions.
    The ITCTLA noted further that even though the proposed rule imposed 
the burden of preparing the public versions on the party submitting the 
evidence, exhibits frequently consist of confidential documents 
produced in discovery by opposing parties. Hence, the task of preparing 
public versions would most likely fall on the opposing party, i.e., the 
party which produced the document, instead of the party designating the 
document for use in evidence. In the ITCTLA's opinion, this would be 
quite burdensome and could lead to abuses intended to gain a tactical 
advantage over the opposing parties at the time of the evidentiary 
hearing, when time is of paramount importance.
    The ITCTLA accordingly argued that it would be preferable for the 
final rule to follow the current practice, which is to designate each 
separate exhibit confidential or nonconfidential in its entirety.
    The Commission agrees and has omitted item (iv) from the list in 
paragraph (f)(3) of final rule 210.4.
    Paragraph (g). Paragraph (g) of final rule 210.4 is the same as 
paragraph (d) of proposed rule 210.4, which discusses service of 
written submissions in investigations and related proceedings under 
part 210.

Subpart B--Commencement of Preinstitution Proceedings and 
Investigations

Section 210.10
    Paragraph (a). Paragraph (a)(5) of proposed rule 210.10 stated that 
a complainant has the right to withdraw its section 337 complaint at 
any time before the Commission votes on whether to institute an 
investigation in response to the complaint.
    In final rule 210.10, paragraph (a)(5) has been divided into 
paragraphs (a)(5)(i) and (a)(5)(ii).
    The new paragraph (a)(5)(i) states that the complainant may 
withdraw the complaint as a matter of right at any time before the 
Commission votes on whether to institute an investigation. It also 
provides, however, that if the complaint is being withdrawn pursuant to 
a settlement agreement, confidential and nonconfidential copies of the 
agreement must be filed with the Commission along with the notice of 
withdrawal.
    The new paragraph (a)(5)(ii) contains a provision from the proposed 
rule, which states that if a motion for temporary relief was filed in 
addition to the complaint, the motion must be withdrawn along with the 
complaint, and the complainant must serve copies of the notice of 
withdrawal on all proposed respondents and the embassies that were 
served with copies of the complaint and motion pursuant to final rule 
210.54.

Subpart D--Motions

Section 210.16
    Final rule 210.16 governs default in section 337 investigations, 
specifically, the forms of default provided for in sections 337 (g) and 
(h) of the Tariff Act--i.e., (1) failure to respond or to otherwise 
appear to answer the complaint and notice of investigation, and (2) a 
finding of default as a sanction for abuse of process under final rule 
210.4 (the Commission analog to FRCP 11) or failure to make or 
cooperate in discovery under final rule 210.33 (the Commission analog 
to FRCP 37).
    Paragraph (c)(1). Paragraph (c)(1) of proposed rule 210.16 
indicated that the Commission could issue a limited remedial order 
directed to a respondent, on the basis of that respondent's failure to 
respond to the complaint and notice of investigation in the manner 
required under the Commission rules or to otherwise fail to appear to 
answer the complaint and notice of investigation. The point at which 
such relief would be issued was not specified.
    The November 5, 1992, preamble to this rule explained that the 
Commission believed it necessary and appropriate to retain the 
flexibility to issue limited remedial orders immediately after the 
respondent is found to be in default, or after the Commission has 
adjudicated the violation issues, and that the choice would depend on 
the facts and circumstances involved. It was noted that in most cases, 
the Commission would be likely to defer decisions on issuing default 
relief pending the adjudication of any defenses by participating 
respondents that may have a bearing on the public interest factors. The 
preamble went on to say, however, that the Commission was particularly 
interested in receiving comment from interested persons on whether the 
final rule should specify the point at which a default remedy should be 
issued.35
---------------------------------------------------------------------------

    \3\5See 57 FR at 52837.
---------------------------------------------------------------------------

    The ITCTLA commented that the final rule should not specify a time 
at which a default remedy may be issued and that a decision on the 
point of issuance should be made on the basis of the facts.
    The preamble to proposed rule 210.16(c)(1) had noted that there may 
be cases in which time is of the essence and the complainant should not 
be forced to wait until the end of the investigation to obtain relief 
against defaulting respondents. The preamble also had noted that there 
may be cases in which the rapid issuance of limited relief is not 
critical and it would be more appropriate to wait until the end of the 
investigation.36 The ITCTLA concurred.
---------------------------------------------------------------------------

    \3\6Id.
---------------------------------------------------------------------------

    The ITCTLA suggested that immediate relief should be provided if 
the complainant is suffering substantial injury from increased 
importations of the merchandise of a defaulting respondent. The ITCTLA 
went on to say, however, that immediate relief should not be granted 
against a defaulting respondent that is a distributor or manufacturer 
of the foreign merchandise imported or sold by a participating 
respondent, since the distributor's violation of section 337 would 
depend on the finding with regard to the manufacturer.
    The Commission believes that the ITCTLA's second hypothetical is 
incorrect. No finding of violation, on the merits, would be required in 
order for the Commission to issue a limited remedial order against the 
defaulting distributor. If the distributing respondent defaulted in the 
manner described in the statute, the Commission would be required to 
``presume the facts alleged in the complaint to be true.''37 (It 
therefore would not matter whether a violation had--or had not been--
proven with respect to the participating respondent that manufactured 
the defaulting respondent's imported merchandise.) In such a case, the 
only justification the Commission could have, as a matter of law, for 
properly denying relief would be the likely adverse impact on one or 
more of the statutory public interest factors.38
---------------------------------------------------------------------------

    \3\7See 19 U.S.C.1337(g)(1).
    \3\8Section 337(g)(1) provides that ``[T]he Commission shall 
presume the facts alleged in the complaint to be true and shall, 
upon request, issue an exclusion from entry or a cease and desist 
order, or both, limited to that [respondent] unless, after 
considering the effect of such exclusion or order upon the public 
health and welfare, competitive conditions in the United States 
economy, the production of like or directly competitive articles in 
the United States, and United States consumers, the Commission finds 
that such exclusion or order should not be issued.'' [Emphasis 
added]. 19 U.S.C. 1337(g)(1).
---------------------------------------------------------------------------

    The Commission did not alter paragraph (c)(1) of proposed rule 
210.16 before adopting it as a final rule. The final rule thus does not 
specify the point at which the Commission may issue a limited remedial 
order directed to a respondent, on the basis of that respondent's 
failure to respond to the complaint and notice of investigation in the 
manner required under the Commission rules or to otherwise fail to 
appear to answer the complaint and notice of investigation.
Section 210.21
    Proposed rule 210.21 provided for termination of investigations on 
the basis of settlement agreements or consent orders.
    Paragraph (c)(3). Paragraph (c)(3) of proposed rule 210.21 recited 
the required content of a consent order stipulation. Before adopting 
paragraph (c)(3) as a provision of final rule 210.21, the Commission 
revised paragraph (c)(3)(i)(B) by adding a requirement that the consent 
order stipulation in an intellectual property-based investigation must 
state that each signatory to the stipulation who was respondent in the 
investigation will not seek to challenge the validity of the 
intellectual property right(s), in any administrative or judicial 
proceeding to enforce the consent order. The Commission made this 
change to be consistent with its ruling in Investigation No. 337-TA-
357, Certain Sport Sandals and Components Thereof.\39\
---------------------------------------------------------------------------

    \39\In that investigation, the presiding ALJ issued an ID 
granting a joint motion by the complainant and one respondent for 
termination of the investigation as to that respondent on the basis 
of a settlement agreement, consent order agreement, and proposed 
consent order. Although the motion was granted, the ID expressed 
concern that the proposed consent order might not prevent the 
respondent from challenging the validity of the patent in 
controversy in any future proceeding to enforce the consent order.
    The Commission reviewed the ID and remanded it to the ALJ for 
clarification of the parties' intent concerning their stipulation of 
patent validity. Specifically, the Commission noted that it would 
not approve the issuance of a consent order which permitted the 
possibility of a challenge to patent validity, by a respondent who 
had signed the order, in an agency or judicial proceeding concerning 
enforcement of the order. The Commission thus instructed the ALJ to 
``advise the parties that, if they wish to terminate the 
investigation on the basis of a consent order, the stipulated 
findings in the proposed consent order should make clear that the 
stipulation concerning the patent's validity will become void only 
if the patent is found to be invalid by a court or agency in a final 
decision that is no longer subject to appeal and is unrelated to 
enforcement of the consent order.'' [Emphasis in the original.] 
[Commission] Order at 1 (June 13, 1994).
---------------------------------------------------------------------------

Sections 210.22 and 210.24
    Proposed rule 210.22 established procedures for designating the 
permanent relief and/or the temporary relief phase of an investigation 
``more complicated.'' Paragraph (b) of proposed rule 210.22 provided 
that the permanent relief phase of an investigation could be designated 
``more complicated'' by order of the presiding ALJ or the Commission.
    Proposed rule 210.24 established the procedure for obtaining 
Commission review of various interlocutory orders issued by an ALJ 
(including orders declaring the permanent relief phase of an 
investigation ``more complicated''). Paragraph (a)(2) of proposed rule 
210.24(a)(2) stated that parties aggrieved by an ALJ's order 
designating the permanent relief phase of a ``more complicated'' could 
file an application for interlocutory review by the Commission, without 
first having to obtain leave from the ALJ.
    The ITCTLA commented that the aforesaid proposed rules are 
beneficial in light of ``the importance of timely adjudication in 
section 337 investigations and due to the purely injunctive nature of 
relief.''
    The Commission agrees. Paragraph (b) of proposed rule 210.22 and 
paragraph (a)(2) of proposed rule 210.24(a)(2) have been adopted as 
final rules without any substantive changes.
    Another aspect of proposed rule 210.24 concerning interlocutory 
appeals also drew comment from the ITCTLA. Paragraph (b)(2) of that 
rule provided that parties aggrieved by an ALJ's order granting or 
denying confidential treatment could file an application for 
interlocutory review with the Commission only if leave is granted by 
the ALJ.
    The ITCTLA commented that interlocutory appeals of confidentiality 
orders could be beneficial in certain circumstances in light of the 
importance of maintaining the confidentiality of information, and that 
paragraph (b)(2) of proposed rule 210.24 strikes the proper balance 
between the possible importance of determinations relating to 
confidential treatment and the unwieldiness of interlocutory appeals, 
by requiring the ALJ to grant leave to appeal the order. The ITCTLA 
also expressed the hope, however, that such leave would not be given as 
a matter of course.
    The Commission agrees with the ITCTLA that the authority to grant 
leave to seek interlocutory appeals of orders granting or denying 
confidential treatment under paragraph (b)(2) of the final rule should 
be used judiciously. Paragraph (b)(2) of final rule 210.24 is 
substantively the same as the proposed rule.
Section 210.25
    Proposed rule 210.25 addressed the filing and adjudication of 
motions for sanctions for abuse of process, abuse of discovery, failure 
to make or cooperate in discovery, or violation of an APO. Proposed 
rule 210.25 established several procedures for the adjudication of such 
motions, depending on when the motion was filed and whether it was 
addressed to the Commission or the ALJ.
    The Commission drafted final rule 210.4(b)-(f) to conform to the 
December 1, 1993, amendments to FRCP 11. The text of final rule 210.25 
has been drafted to be consistent with those provisions of final rule 
210.4. In paragraph (a) of final rule 210.25, a separate sentence has 
been inserted concerning the appropriate time to file a motion for 
sanctions, in view of the prerequisites that will apply to certain 
types of motions (e.g., prior service of the motion on the parties, or 
a good faith attempt to resolve the dispute before seeking action by 
the ALJ or the Commission).
    The Commission also made two other changes throughout final rule 
210.25. First, the wording reflects the fact that the Commission rules 
for part 210 apply to investigations and related proceedings and that 
sanctions may be requested in related proceedings as well as in 
investigations. Second, the rule discusses referring a sanctions motion 
to an ALJ (instead of the ALJ) because the identity of the presiding 
ALJ usually is not known when the Commission order making the 
assignment is issued.
    The wording of final rule 210.25 also incorporates suggestions made 
by the ITCTLA. For example, paragraph (f) of proposed rule 210.25 
pertained to motions that were filed with the ALJ, and permitted him to 
defer issuing a ruling on the motion until 90 days after the issuance 
of an ID on violation of section 337. The second sentence of that 
paragraph reads as follows:

    His [i.e., the ALJ's] ruling on the motion for sanctions must be 
in the form of a recommended determination and shall be issued no 
later than 90 days after issuance of the aforesaid initial 
determination on violation of section 337 or termination of the 
investigation.

    The ITCTLA commented that the foregoing sentence should be revised 
to read as follows:

    If the administrative law judge defers his adjudication in such 
a manner, his ruling on the motion for sanctions must be in the form 
of a recommended determination and shall be issued no later than 90 
days after his ID on violation of section 337 or termination of the 
investigation. [Emphasis added.]

    The Commission has made that change in paragraph (f) of the final 
rule 210.25. The changed language accurately states what the Commission 
actually intended for the proposed rule to provide.
    The ITCTLA also commented that allowing the ALJ 90 days from 
issuance of the ID on violation of section 337 to issue an RD on 
sanctions ``could be problematic in that it could lead to decisions on 
sanctions issuing simultaneously with the Commission's decision.''
    The Commission notes first that 90 days is the maximum time that 
the ALJ can take to issue the RD. If the circumstances allow it, the 
ALJ is free to issue the RD in fewer than 90 days. (The Commission 
encourages its ALJs to do so whenever possible).
    The Commission also does not foresee any problem with the 90 day 
deadline as long as the proposed sanction discussed in the motion and 
the RD is not one that, if granted, would have a bearing on the merits 
of the Commission determination on violation of section 337. The 
likelihood of that occurring is not high, since ALJs usually include 
affirmative sanction rulings of that sort in the ID on violation, or 
issue them prior to the ID but make reference to them in the ID. Even 
if there were a case in which the grounds for an evidentiary sanction 
do not become apparent until the ALJ adjudicates the sanction motion in 
an RD issued 90 days after the ID on violation, the final rules contain 
procedures that would address the difficulties. If the sanction is one 
that would have a bearing on the issues of violation, remedy, the 
public interest, and/or bonding by respondents, the Commission could 
designate the investigation ``more complicated,'' if that designation 
had not previously been applied, to give the Commission time to 
consider the RD in connection with its final determinations on those 
issues. If that were not an option, the Commission could make its final 
determinations on violation, remedy, the public interest, and bonding 
without taking the sanction RD into account. The Commission could then 
process the RD and reconsider the aforesaid determinations if 
necessary, sua sponte or in response to motions under final rules 
210.47 and 210.48 (``Petitions for Reconsideration'' and ``Disposition 
of Petitions for Reconsideration'') or final rule 210.76 
(``Modification or Rescission of Exclusion Orders, Cease and Desist 
Orders, and Consent Orders'').
    If the sanction RD concerns a sanction that would not have a 
bearing on the issue of violation, remedy, the public interest, or 
bonding (e.g., a monetary sanction for failure to make or cooperate in 
discovery), the Commission sees no problem with the issuance of the 
sanction RD coinciding with the Commission determinations on those 
issues.
    The ITCTLA's final comment concerning proposed rule 210.25 
pertained to the third sentence in paragraph (f), which read as 
follows:

    To aid the Commission in determining whether to adopt a 
recommended determination granting or denying cost or attorney's fee 
sanctions, any party may file written comments with the Commission 
14 days after service of the recommended determination.

    The ITCTLA commented that the foregoing sentence should be revised 
to read:

    To aid the Commission in determining whether to adopt a 
recommended determination, any party may file written comments with 
the Commission fourteen (14) days after service of the recommended 
determination.

    The ITCTLA explained that this change was necessary because the 
wording of the proposed rule improperly restricted a party's ability to 
appeal orders pertaining to sanctions other than costs or attorneys 
fees. The Commission agrees and has made the requested change in the 
final rule.

Subpart E--Discovery and Compulsory Process

Section 210.27
    Proposed rule 210.27 covered the permissible methods and subject 
matter of discovery, time constraints on discovery, and supplementation 
of responses to discovery requests.
    Paragraph (b). Paragraph (b) of proposed rule 210.27 addressed the 
permissible subject matter of discovery. It was based on portions of 
subdivision (b)(1) of FRCP 26 as it read prior to December 1, 1993.
    On December 1, 1993, subdivision (b) of FRCP 26 was amended to 
provide U.S. district courts with broader discretion to have greater 
control of and to impose additional restrictions on the scope and 
extent of discovery.\40\ A new paragraph (5) was also added to require 
a party to notify other parties if it is withholding materials 
otherwise subject to disclosure under FRCP 26 or pursuant to a 
discovery request because the party is asserting a claim of ``privilege 
or work product protection.''\41\
---------------------------------------------------------------------------

    \40\See 146 F.R.D. at 436-440 and 638-639.
    \41\See 146 F.R.D. at 639-640.
---------------------------------------------------------------------------

    The Commission decided against having paragraph (b) of final rule 
210.27 match amended subdivision (b) of FRCP 26. The Commission noted 
first that it is not required by law to follow FRCP 26 concerning the 
permissible scope and limits of discovery (as it is in the case of the 
Commission rules providing sanctions for abuse of process or discovery 
in accordance with FRCP 11 or 37). The Commission also was of the 
opinion that incorporating the amended FRCP provisions into the 
Commission rule was not necessary at this time, since proposed rule 
210.27 is--and the current practice of the ALJs are--largely consistent 
with the provisions of those amendments. The Commission also recognized 
that some aspects of the FRCP amendments could be problematic if 
applied in section 337 proceedings.\42\ The Commission thus concluded 
that wholesale adoption of the amended subdivision (b) of FRCP 26 would 
be ill-advised, while partial adoption of its provisions would be 
likely to delay the Commission's adoption of final rules.
---------------------------------------------------------------------------

    \42\For example, subdivision (b)(4)(C) of amended FRCP 26 would 
require the Commission to reimburse the private parties' experts for 
deposition testimony and other discovery requested by OUII. The 
Commission also noted that subdivision (b)(3) of amended FRCP 26 
provides that non-parties may obtain transcripts of their testimony, 
but does not indicate who would bear the costs of those additional 
transcripts (which usually cost about $800 per day of testimony).
---------------------------------------------------------------------------

    The Commission notes, however, that a presiding ALJ can issue his 
own ground rules to supplement the part 210 discovery rules, and that 
such ground rules may incorporate provisions of FRCP 26 or other 
Federal Rules, as the ALJ deems appropriate.
    In addition to considering whether to revise paragraph (b) of 
proposed rule 210.27 to be consistent with amended subdivision (b) of 
FRCP 26, the Commission also considered whether to revise paragraph (b) 
in response to a comment by the ITCTLA.
    Paragraph (b) of the proposed rule stated that the scope of 
discovery for the temporary relief phase of an investigation would be 
governed by proposed rule 210.61. Paragraph (b) also expressly allowed 
discovery on the issues of remedy and bonding by the respondents in 
connection with the permanent relief phase of an investigation.
    The ITCTLA commented that because the public interest is an issue, 
the final rule should specifically provide for discovery on the public 
interest in certain circumstances. The ITCTLA went on to say that to 
avoid overbreadth, the ALJ should be given discretion not only to 
determine whether such discovery should be taken, but also to limit the 
discovery in whatever manner is appropriate.
    The Commission does not think it necessary to make the changes the 
ITCTLA advocated. As the preamble to proposed rule 210.27 explained, 
serious questions as to whether the granting of permanent relief would 
have an adverse impact on the public interest arise relatively 
infrequently. Moreover, the scope of evidence and information that 
conceivably could be categorized as relevant to the public interest is 
potentially so vast as to make discovery and findings by the ALJ 
concerning the public interest impracticable. For those reasons, 
paragraph (b) of proposed rule 210.27 did not require ALJs to allow 
discovery, to take evidence, or to make findings or recommendations to 
the Commission concerning the public interest in connection with the 
grant or denial of permanent relief. The Commission notes, however, 
that it has the option to order an ALJ to take evidence and make 
findings on the public interest in appropriate cases. 40
---------------------------------------------------------------------------

    \4\0See 19 CFR 201.4(b) (1993) regarding waiver of Commission 
rules and final rule 210.50(b) concerning the ALJ's ability to take 
evidence, hear argument, and make findings concerning the public 
interest.
---------------------------------------------------------------------------

    Paragraph (b) of final rule 210.27 does not differ substantively 
from the corresponding paragraph of the proposed rule. The final rules 
maintain the practice employed under the interim rules--i.e., of 
generally prohibiting the ALJ from addressing the public interest, in 
the absence of an express order from the Commission directing the ALJ 
to order discovery on the public interest in a particular 
investigation. See final rule 210.50(b)(1).
    Paragraph (c). Paragraph (c) of proposed rule 210.27 pertained to 
the supplementation of a response to a discovery request, and 
corresponded to subdivision (e) of FRCP 26 as it read prior to December 
1, 1993.
    On December 1, 1993, subdivision (e) of FRCP 26 was amended to 
provide that the duty to supplement applies to disclosures required by 
the amended subdivision (a) of FRCP 26. The amended subdivision (e) 
also clarifies that the obligation to supplement formal discovery 
requests applies to interrogatories, requests for production, and 
requests for admissions, but not generally to deposition 
testimony.41
---------------------------------------------------------------------------

    \4\1See 146 F.R.D. at 442-443 and 641.
---------------------------------------------------------------------------

    Because the Commission did not draft paragraph (a) of final rule 
210.27 to incorporate the amended subdivision (a) of FRCP 26 concerning 
mandatory disclosures, the Commission also did not draft paragraph (c) 
of final rule 210.27 to cover such disclosures.
    The ITCTLA commented that paragraph (c) of final rule 210.27 should 
be drafted to broaden the duty to supplement discovery responses. The 
ITCTLA explained that--

    On a fast track, as parties develop their cases and muster their 
evidence, it is likely that relevant material is later discovered 
which was within an earlier discovery request but not found 
previously despite a diligent search. Thus, the duty to supplement 
should be imposed on the party in possession of the information. At 
a minimum, the rule should require parties to supplement their 
responses prior to hearing, without exception.

    The Commission decided that paragraph (c) of final rule 210.27 
should match subdivision (e) of FRCP 26 by clarifying that the 
obligation to supplement formal discovery requests applies to 
interrogatories, requests for production, and requests for admissions, 
but not generally to deposition testimony. Paragraph (c)(1) of final 
rule 210.27 specifically provides that a party who has responded to a 
request for discovery with a response is under a duty to supplement or 
correct the response to include information thereafter acquired if 
ordered by the ALJ or in the circumstances outlined in the rule. The 
presiding ALJ can therefore issue ground rules to either supplement or 
replace the requirements set forth in the rule.
    Paragraph (d). Paragraph (d) of proposed rule 210.27 was based on 
subdivision (g) of FRCP 26 as it read prior to December 1, 1993. 
Paragraph (d) thus imposed signature and certification requirements for 
discovery requests, responses, and objections. Those requirements were 
similar to the signature and certification requirements imposed by FRCP 
11 as it read prior to December 1, 1993, and in paragraph (b) of 
proposed Commission rule 210.4. Paragraph (d) of proposed rule 210.27 
also provided for cost and fee sanctions like those authorized in FRCP 
37 prior to December 1, 1993, and in paragraph (c) of proposed 
Commission rule 210.33.
    As the 1992 preamble to proposed rule 210.27 explained, FRCP 26 was 
not cited in section 337(h) as one of the Federal Rules that the 
Commission is to use as a standard for imposing cost and fee sanctions 
in section 337 investigations. Section 337(h) does state, however, that 
the Commission may by rule prescribe sanctions for abuse of discovery 
to the extent authorized by FRCP 37,42 and FRCP 26 is derived from 
FRCP 37. The Commission decided that it was appropriate for the 
proposed rules to include a provision based on paragraph (g) of FRCP 
26, as the Commission has the authority to adopt any rules it deems 
necessary to carry out its functions and duties,43 and the ALJs 
had advised the Commission that there was a need for a Commission rule 
based on paragraph (g) of FRCP 26.
---------------------------------------------------------------------------

    \4\219 U.S.C. Sec. 1337(h).
    \4\3See 19 U.S.C. Sec. 1335.
---------------------------------------------------------------------------

    On December 1, 1993, subdivision (g) of FRCP 26 was amended to make 
the signature, certification, and sanction provisions applicable to 
disclosures required by subdivision (a) as amended. The sanction 
provisions were also amended to be consistent with provisions of FRCP 
37.44
---------------------------------------------------------------------------

    \4\4See 146 F.R.D. at 444-447 and at 644. The Committee Notes 
also point out that FRCP 11, as amended, does not apply to such 
violations. Id. at 644.
---------------------------------------------------------------------------

    Since the Commission did not draft paragraph (a) of final rule 
210.27 to cover disclosures, the Commission also did not draft 
paragraph (d) of that rule to make the signature, certification, and 
sanction provisions applicable to disclosures. The changes that the 
Commission did make in paragraph (d) of the proposed rule before 
adopting it as a final rule are described below.
    First, the Commission revised the wording of the certification 
requirement in paragraph (d) to correspond more closely to the wording 
and substance of subdivision (g) of FRCP 26, as amended. For example, 
the certification provision was revised so that it no longer states 
that the signature of the attorney or party constitutes a certification 
that the signer has read the request, response, or objection.
    The Commission also changed the cross-references in paragraph (d). 
The revised paragraph (d) provides that a discovery response, request, 
or objection must be consistent with rule 210.5 and other relevant 
rules. The revised paragraph does not refer to Commission rule 
201.8.45 The Commission also revised paragraph (d) to omit a 
reference to ``Sec. 210.4.''46 The Commission added a new 
paragraph (d)(1), however, containing provisions like those in 
paragraph (a) of proposed rule 210.4.47
---------------------------------------------------------------------------

    \4\5Rule 201.8 (19 CFR 201.8) imposes requirements for the 
filing of documents. Responses to discovery requests are not 
normally filed with the ALJ or the Commission.
    \4\6The signature, certification, and sanction provisions of 
rule 210.4 are based on FRCP 11, and FRCP 11 as amended no longer 
applies to disclosures and discovery requests, responses, 
objections, or motions covered by FRCP 26.
    \4\7Paragraph (a) of proposed rule 210.4 was not based on FRCP 
11, and simply stated that the front page of every written 
submission must contain a caption setting forth the name of the 
Commission, the title of the investigation or related proceeding, 
and the docket number or investigation number, if any, assigned to 
the investigation or related proceeding.
---------------------------------------------------------------------------

    The sanction provisions of paragraph (d) were modified as well. 
Among other things, paragraph (d) was revised to indicate that a 
violation occurs and a sanction may be imposed when a request, 
response, or objection is certified without substantial justification, 
which is the standard used in subdivision (g) of FRCP 26 as amended. 
The sanction provisions also do not include a reference to ``proposed 
parties.''48 Finally, the revised paragraph (d) also omits a 
reference to the possible imposition of a fine as a sanction for 
violation of the certification requirement.49
---------------------------------------------------------------------------

    \4\8Proposed parties do not usually participate in discovery. 
The inclusion of that reference in the proposed rule was an error.
    \4\9Unlike the amended FRCP 11, the amended paragraph (g) of 
FRCP 26 does not provide for the imposition of monetary penalties 
other than costs or attorney's fees.
---------------------------------------------------------------------------

Section 210.30
    Proposed rule 210.30 concerned requests for the production of 
documents and things and entry upon land.
    Paragraph (b). Paragraph (b) of proposed rule 210.30 outlined the 
procedure for making, serving, and responding to requests for the 
production of documents and things and entry upon land. Paragraph (b) 
also provided that the presiding ALJ would determine the deadline for 
responding.
    The ITCTLA commented that instead of leaving the response time to 
the discretion of the ALJ, there should be a minimum response period 
provided in the rule, which the ALJ has the authority to extend, but 
not diminish.
    The Commission notes that the proposed discovery rules contained no 
prescribed deadlines because the Commission had deferred to Chief ALJ 
Saxon's view that discovery deadlines in each investigation should be 
established by the presiding ALJ and not by Commission rule. The ITCTLA 
did not offer any justification for the Commission to insert a deadline 
in paragraph (b) of the final rule. The Commission thus has not made 
the change that the ITCTLA requested; paragraph (b) of final rule 
210.30 does not differ substantively from the corresponding paragraph 
of the proposed rule.
Section 210.32
    Proposed rule 210.32 governed the issuance of subpoenas.
    Paragraph (e). Paragraph (e) of proposed rule 210.32 was the same 
as the corresponding paragraph of interim rule 210.35 and discussed ex 
parte rulings on applications for subpoenas. Paragraph (e) provided 
that applications for the issuance of the subpoenas can be made ex 
parte, and, if so made, such applications and rulings thereon must 
remain ex parte unless otherwise ordered by the ALJ.
    The ITCTLA commented that it is not clear whether the ex parte 
applications are discoverable by any party or person who wishes to try 
to quash the subpoena. The ITCTLA believes that final rule 210.32 
should expressly provide that such applications are discoverable by any 
party or person seeking to quash the subpoena if it is actually issued.
    The Commission did not modify paragraph (e) in the manner the 
ITCTLA advocated. The Commission intends for paragraph (e) of final 
rule 210.32 to correspond to the FRCP 34 on the issuance of subpoenas. 
FRCP 34 does not contain a provision of the sort that the ITCTLA has 
requested. The issues of whether and when applications for subpoenas 
are discoverable by parties and subpoenaed persons accordingly will be 
left to the discretion of the presiding ALJ.
Section 210.33
    Proposed rule 210.33 was based on FRCP 37 as it read prior to 
December 1, 1993, which provided sanctions for failure to make or 
cooperate in discovery.
    Paragraph (a). Paragraph (a) of proposed rule 210.33 pertained to 
the filing of motions for orders compelling discovery. Paragraph (a) 
was based on the first sentence in subdivision (a) of FRCP 37, as it 
read prior to December 1, 1993.
    On December 1, 1993, subdivision (a) of FRCP 37 was amended to be 
consistent with amended subdivision (a) of FRCP 26 (which requires 
disclosures of certain matters without a discovery request). It was 
also amended to provide that--

     a party dissatisfied with the disclosures made by an 
opposing party may move for an order to compel disclosure;
     litigants must seek to resolve discovery disputes by 
informal means before filing a motion with the court;
     evasive or incomplete disclosures and responses to 
interrogatories and production requests will be treated as failures 
to disclose or respond; and
     monetary sanctions can be imposed if the disclosure or 
requested discovery is provided after the motion to compel is filed 
with the court but before a hearing is held on the motion (except 
that a party may not be awarded its expenses for filing a motion 
that could have been avoided by conferring with opposing 
counsel).50
---------------------------------------------------------------------------

    \5\0See 146 F.R.D. at 467-470 and 689-691.

    The Commission decided against incorporating provisions of 
subdivision (b) of amended FRCP 37 into paragraph (a) of final rule 
210.33 at this time. Paragraph (a) of final rule 210.33 is therefore 
the same as paragraph (a) of the proposed rule.
    The Commission notes, however, that a presiding ALJ can issue his 
or her own ground rules to supplement the part 210 discovery rules (and 
hence those ground rules may require that a movant must certify that 
there have been good faith efforts to resolve a discovery dispute by 
informal means prior to the filing of a motion to compel discovery). A 
presiding ALJ's ground rules also can provide that an evasive or 
incomplete disclosure, answer, or response will be treated as a failure 
to respond as provided in amended FRCP 37(a)(3).
    Paragraph (b). Section 337(h) gives the Commission express 
authorization to impose sanctions for ``abuse of discovery'' to the 
extent provided in FRCP 37.51 Paragraph (b) of proposed rule 
210.33 addressed non-monetary sanctions for failure to make or 
cooperate in discovery. Paragraph (b) was based on the non-monetary 
sanction provisions of FRCP 37(b) (as well as paragraph (b) of interim 
rule 210.36, which listed various kinds of sanctions that may be 
imposed if a party fails to comply with a discovery order).
---------------------------------------------------------------------------

    \5\119 U.S.C. Sec. 1337(h).
---------------------------------------------------------------------------

    The Federal Rule upon which paragraph (b) of proposed rule 210.33 
was based--subdivision (b) of FRCP 37--was not amended on December 1, 
1993. The Commission therefore did not consider making changes in 
paragraph (b) before adopting it as part of final rule 210.33.
    Paragraph (c). Paragraph (c) of proposed rule 210.33 discussed 
monetary sanctions for failure to make or cooperate in discovery. It 
was based in part on subdivision (b)(2) of FRCP 37, which was not 
amended on December 1, 1993.
    Subdivisions (c), (d), and (g) of amended FRCP 37 are also relevant 
to the question of monetary sanctions for failure to make or cooperate 
in discovery in section 337 investigations. Subdivision (c) authorizes 
cost and fee sanctions for failure to make the disclosures required by 
subdivision (a) of FRCP 26, as amended. Subdivision (c) also provides 
sanctions for false or misleading disclosures and refusals to 
admit.52 Subdivision (d) authorizes cost and fee sanctions for a 
party's failure to attend its own deposition or to serve answers to 
interrogatories or responses to requests for inspection. (Subdivision 
(d) also provides that when a party fails to file any response to 
interrogatories or a FRCP 34 request, the discovering party is required 
to try informally to obtain such responses before filing a motion for 
sanctions.)53 Subdivision (g) authorizes cost and fee sanctions if 
a party or a party's attorney fails to participate in good faith in the 
development and submission of a proposed discovery plan as required by 
amended subdivision (f) of FRCP 26.54
---------------------------------------------------------------------------

    \5\2See 146 F.R.D. at 470-472 and 691-692.
    \5\3See 146 F.R.D. at 472-473 and 691-692.
    \5\4See 146 F.R.D. at 473 and 692.
---------------------------------------------------------------------------

    The Commission has decided not to incorporate the provisions of 
subdivisions (a), (c), (d), and (g) of amended FRCP 37 into its final 
rules at this time. The only monetary sanctions available under 
paragraph (c) of final rule 210.33 will be those based on subdivision 
(b)(2) of amended FRCP 37 for failure to comply with an order to 
provide or permit discovery.
    The Commission made several substantive revisions to paragraph (c), 
however. First, paragraph (c)(1) was revised by changing the citation 
to ``Rule 37 of the Federal Rules of Civil Procedure'' to ``Rule 
37(b)(2) of the Federal Rules of Civil Procedure.'' In addition, the 
language of paragraph (c)(1) was altered to conform more closely to 
that of subdivision (b)(2) of amended FRCP 37. The Commission added 
language indicating that monetary sanctions may not be awarded if the 
ALJ or the Commission finds that the uncooperative party's failure to 
comply with the order to provide or permit discovery was substantially 
justified or that other circumstances make an award of expenses unjust.
    The Commission also deleted the references in paragraph (c)(1) to 
the imposition of an ``appropriate monetary sanction'' and the 
possibility of a fine being imposed in lieu of or in addition to cost 
and attorneys' fee sanctions. Unlike the sanction provisions of amended 
FRCP 11, the sanction provisions of amended FRCP 37 do not provide for 
monetary sanctions of any kind other than the payment of another 
party's costs and attorneys' fees.
    The Commission also made some minor editorial changes in paragraph 
(c)(2) before adopting it as part of final rule 210.33.

Subpart F--Prehearing Conferences and Hearings

Section 210.35
    Paragraph (d). Paragraph (d) of proposed rule 210.35 discussed 
prehearing orders, and stated that the ALJ's order shall control the 
subsequent course of the hearing, unless the ALJ modifies the order.
    The ITCTLA commented that this provision gives the presiding ALJ 
wide latitude to modify his prehearing order. The ITCTLA believes, 
however, that while ALJs should have broad powers to modify pretrial 
orders, some sort of limit should be imposed. The ITCTLA accordingly 
requested that the last sentence of final rule 210.35 be drafted to 
state that the ALJ can modify his pretrial order for ``good cause.'' 
The ITCTLA noted that ``good cause'' is the standard that Federal 
judges must apply in modifying scheduling orders under FRCP 16(b).
    The Commission does not see a need for the change the ITCTLA has 
advocated. The Commission assumes that the ALJs will not abuse their 
power to modify a pretrial order and will only make modifications when 
good cause exists for the change. That being the case, revising the 
last sentence to add the ``good cause'' proviso would seem to be 
unnecessary.
Section 210.36
    Paragraph (d). Paragraph (d) of proposed rule 210.36 described the 
rights of the parties at evidentiary hearings. It stated, among other 
things, that every party will have the right of adequate notice, cross-
examination, presentation of evidence, objection, motion, argument, and 
all other rights essential to a fair hearing.
    The ITCTLA commented that the reference to ``all other rights 
essential to a fair hearing'' is vague and unnecessary, and should be 
omitted from the final rule. The Commission does not agree and has 
retained that phrase in paragraph (d) of final rule 210.36.
Section 210.37
    Paragraph (b). Paragraph (b) of proposed rule 210.37 discussed the 
admissibility of evidence. It stated, in pertinent part, that 
immaterial or irrelevant parts of an admissible document will be 
segregated and excluded as far as practicable. The ITCTLA commented 
that in the final rule, this sentence should be written in the 
disjunctive, not in the conjunctive--i.e., the word ``or'' should be 
used in place of the word ``and.'' The Commission believes that change 
is appropriate and has made it in the final rule.
    Paragraph (e). Paragraph (e) of proposed rule 210.37 discussed 
objections to evidence, and stated that objections to evidence shall be 
made in timely fashion and shall briefly state the grounds relied upon.
    The ITCTLA commented that the word ``timely'' is too vague and, for 
that reason, the final rule should state that objections must be made 
when the evidence is offered.
    The Commission intends for the presiding ALJ in each case to decide 
at what point objections to evidence should be made. The Commission 
therefore has not drafted paragraph (e) of final rule 210.37 to include 
the provision that the ITCTLA requested.
Section 210.38
    Proposed rule 210.38 governed the reporting and transcription, 
correction, and certification of the administrative record of a section 
337 investigation or related proceeding.
    Paragraph (a). Paragraph (a) of the proposed rule identified the 
kinds of documents and materials that constitute such a record. Unlike 
paragraph (a) of the proposed rule, paragraph (a) of the final rule 
codifies longstanding Commission practice by indicating that all briefs 
and written statements are part of the record.

Subpart G--Determinations and Actions Taken

Section 210.42
    Proposed rule 210.42 was the general rule concerning IDs.
    Paragraph (a). Paragraph (a) of proposed rule 210.42 governed the 
issuance of an ID on ``permanent relief,'' i.e., violation of section 
337. The headings of the final rule differ from those in the proposed 
rule in the following manner:
    1. The heading of paragraph (a)(1)(i) has been changed from ``On 
issues concerning permanent relief'' to ``On issues concerning 
violation of section 337.'' This change was made because IDs issued 
pursuant to this paragraph pertain solely to violation of section 337 
of the Tariff Act and do not address the issue of permanent relief.
    2. Paragraph (a)(1)(ii) has been given the heading ``Recommended 
determination on issues concerning permanent relief and bonding,'' as 
this paragraph requires the ALJ to issue, within 14 days after issuance 
of the violation ID, an RD on the issues of remedy and bonding by 
respondents.
    The ITCTLA commented that apart from not detracting from the time 
allotted to the ALJ to adjudicate the question of a section 337 
violation, there does not seem to be any justification for treating an 
ALJ's remedy and bonding decision differently from his decision on 
violation. The ITCTLA also believes that the only advantage to having 
the ALJ issue his remedy and bonding decision separately from the 
decision on violation is that the public gets an opportunity to comment 
on the remedy and bonding issues. The ITCTLA maintains, however, that 
such comment would be possible without utilizing the RD mechanism.

    The ITCTLA accordingly suggested that--
    1. final rule 210.42(a)(1)(ii) should require the ALJ to issue 
an ID on permanent relief and bonding, instead of an RD, on the 14th 
day after issuance of the ID on violation of section 337;
    2. processing of the ID should entail provision for petitions 
for review by parties and a 30-day deadline for comments on the ID 
by interested members of the public; and
    3. the ID should have a 45-day effective date.

    The Commission has not drafted paragraph (a)(1)(ii) of final rule 
210.42 in the manner the ITCTLA has advocated. The Commission believes 
that having the ALJ issue an RD on remedy and bonding by respondents 
will give the Commission the greatest flexibility in reaching final 
determinations on those issues.\55\
---------------------------------------------------------------------------

    \55\A Commission decision on whether to accept or reject the 
recommendations in an RD is not governed by the same subject matter 
limitations and deadlines as a decision on whether to review an ID.
---------------------------------------------------------------------------

    The Commission did make one substantive change in paragraph 
(a)(1)(ii) of proposed rule 210.42 before adopting it as a final rule. 
That paragraph was revised to require an ALJ to issue an RD on remedy 
and bonding in every case (and not just those in which the ALJ has 
found a violation of section 337).
    Paragraph (d). Paragraph (d) of proposed rule 210.42 described the 
required content of an ID. It stated, among other things, that an ID 
would become the determination of the Commission unless a party filed a 
petition for review of the ID ``pursuant to Sec. 210.43(a) or 
Sec. 210.46(a) or the Commission, pursuant to Sec. 210.44 of 
Sec. 210.46(a)(6), orders on its own motion a review of the initial 
determination or certain issues therein.'' Since the Commission has 
determined not to adopt the procedure set forth in proposed rule 
210.46(a), the cross-references to that rule have been omitted from 
paragraph (d) of final rule 210.42.
    Paragraph (h). Paragraph (h) of proposed rule 210.42 listed the 
effective dates of various kinds of IDs.
    Paragraph (h)(1) provided that an ID under proposed rule 
210.42(a)(2) granting a motion to declassify confidential information 
would become the determination of the Commission within 45 days after 
service of the ID unless the Commission ordered a review. The ITCTLA 
commented that the final version of this rule should provide a 30-day 
effective date for the ID, because IDs on declassification of 
confidential information ``[seem] more like the type of decision which 
becomes effective within thirty (30) days (like amendment of the 
complaint, etc.). The ITCTLA also suggested that the 30-day period be 
measured from the date of issuance of the ID, and not the date of 
service, to be consistent with proposed rules 210.43 (``Petitions for 
Review of [IDs] on Matters Other Than Temporary or Permanent Relief'') 
and 210.46 (``Petitions for and Sua Sponte Review of [IDs] on Permanent 
or Temporary Relief'').
    The Commission notes that consistency in rules dealing with similar 
or related subject matter generally is desirable. In this case, 
however, the Commission does not think it necessary or desirable to 
revise the manner of measuring the effective date of an ID on 
declassification of confidential information. Calculating a prescribed 
period from the date of issuance of an ID (instead of the date of 
service) usually shortens the actual period. Expedited procedures are 
necessary, however, for IDs that must be processed before a statutory 
or regulatory deadline. Such urgency does not exist with respect to 
processing an ID concerning declassification of confidential 
information.
    Paragraph (h)(2) of proposed rule 210.42 concerning IDs on 
permanent relief (i.e., violation of section 337) did not give an 
effective date for such IDs because they were to be processed in 
accordance with paragraph (a) of proposed rule 210.46, instead of being 
processed by the customary bifurcated process. Instead, paragraph 
(h)(2) simply stated that IDs on violation of section 337 would be 
processed in accordance with proposed rule 210.46.
    Since the Commission has not adopted the procedure set forth in 
that proposed rule, paragraph (h)(2) of final rule 210.42 has been 
drafted to state that IDs on violation of section 337 have a 45-day 
effective date, unless the Commission orders otherwise or changes the 
deadline for determining whether to order a review. Paragraph (h)(2) 
also retains the provision from the corresponding paragraph of the 
proposed rule indicating that the findings and recommendations made by 
the ALJ in the RD on remedy and bonding by the respondents will be 
considered by the Commission in reaching determinations on those 
issues.
Section 210.43
    Paragraph (b). Paragraph (b) of proposed rule 210.43 articulated 
(1) the standard for review and the grounds that must be asserted in a 
petition for review as justification for seeking review of specific 
issues, and (2) the consequence of a party's failure to petition for 
review of an issue decided adversely to the party. Like interim rule 
210.54(b), upon which it was based, proposed rule 210.43(b) also stated 
that any issue not raised in the petition for review will be deemed to 
have been abandoned by the party and may be disregarded by the 
Commission in reviewing the ID.
    In the preamble to paragraph (b) of proposed rule 210.43, the 
Commission noted that the Federal Circuit has construed paragraph 
(a)(2) of interim rule 210.54 to mean that parties who petition the 
Commission for review waive their right to raise additional or 
different issues in a subsequent appeal to the Federal Circuit, while 
parties who do not file petitions for review may raise all issues on 
appeal.\56\ The Commission went on to say that while interim rule 
210.54(a)(2) and proposed rule 210.43(b) permit the parties to elect to 
bypass Commission review, and may thereby reduce the effectiveness of 
the Commission's review procedures, some persons may feel that the 
interim rule and proposed rule 210.43(b) effectively discourage the 
filing of petitions for review.\57\
---------------------------------------------------------------------------

    \56\See Warner Brothers, Inc. v. U.S. International Trade 
Commission, 787 F.2d 562, 564 (Fed. Cir. 1986). (The Federal Circuit 
rejected the Commission's argument that parties waive the right to 
challenge Commission determinations by failing to petition for 
review of adversely decided IDs.) See also Allied Corporation v. 
U.S. International Trade Commission, 850 F.2d 1573, 1580 (Fed. Cir. 
1988), cert. denied, 109 S.Ct. 791 (1989) (``Allied abandoned review 
of the claim construction in the ALJ's 1984 ID by failing to raise 
the issue in its petition for review of that ID'').
    \57\57 FR at 52846.
---------------------------------------------------------------------------

    For those reasons, the Commission specifically requested public 
comment on whether it should adopt an Alternative provision to that in 
proposed rule 210.43(b) stating that: (1) A party is required to file a 
petition for review of an ID in which issues had been decided adversely 
to that party, in order to preserve the party's right to judicial 
review of any final Commission determination based on some or all of 
the same grounds as the ID; and (2) a party's failure to file a 
petition for review would be deemed to be abandonment of all issues 
decided adversely to that party in the ID.\58\
---------------------------------------------------------------------------

    \58\Id.
---------------------------------------------------------------------------

    The ITCTLA commented that it does not favor the proposed rule as 
written--or the alternative provision discussed in the preamble. The 
ITCTLA explained that--

    The ITCTLA feels that the problem with the present arrangement 
is that it encourages overly comprehensive petitions, not that it 
discourages a party from filing at all. The ITCTLA doubts whether 
the decision to file a petition for review is influenced 
significantly by the fact that, to avoid any waiver, a party must 
petition for review of every issue lost before the ALJ. Parties that 
do not seek review most likely have other motivations (e.g., lack of 
interest in review of the issues lost, insufficient funds, etc.)
    Thus the only effect of the Commission's suggested alternative 
to the Proposed Rules would be to force parties which did not want 
to file a petition for review to do so or else waive their right to 
appeal to the Federal Circuit. It would not discourage overly 
comprehensive petitions, but instead would ensure that all petitions 
were indeed overly comprehensive.

    The ITCTLA suggested a second alternative--namely, elimination of 
the provision that issues not raised in a petition for review are 
waived. The ITCTLA believes that if the final rule were written in that 
manner, only legitimate issues would be raised in petitions for review. 
The ITCTLA also is of the opinion that such a rule would not deprive 
parties of fair notice of what might be raised on appeal, since the 
present arrangement in which parties routinely file ``kitchen sink'' 
petitions does not provide such notice anyway.
    The Commission has not drafted paragraph (b) of final rule 210.43 
in the manner that the ITCTLA advocated.
    Section 337 investigations are conducted--and determinations from 
such investigations are appealable--in accordance with the APA.\59\ The 
Supreme Court has held that Federal courts do not have the authority to 
require a plaintiff to exhaust administrative remedies before seeking 
judicial review under the APA when neither the relevant statute nor 
agency rules specifically mandate exhaustion as a prerequisite to 
judicial review. Darby v. Cisneros, 113 S.Ct. 2539 (1993).
---------------------------------------------------------------------------

    \59\See 19 U.S.C. Sec. 1337(c).
---------------------------------------------------------------------------

    The relevant provisions of section 337 do not mandate exhaustion as 
a prerequisite to judicial review.\60\ The interim Commission rules 
also do not require a complainant to exhaust the available 
administrative remedies before seeking judicial review.\61\ As the 
preamble to the proposed rules pointed out, the Federal Circuit 
previously decided that the Commission's interim rule 210.54(a)(2)--
which is the same as proposed rule 210.43(b) on the issue of waiver--
does not require an aggrieved party to file a petition for Commission 
review of an ID before seeking judicial review. See Warner Brothers, 
Inc. v. U.S. International Trade Commission, 787 F.2d 562, 564 (Fed. 
Cir. 1986).\62\
---------------------------------------------------------------------------

    \60\Id.
    \61\See 19 CFR 210.54(a), 210.53(h), 210.56(c), and 210.71 
(1993).
    \62\In reaching that decision, the Federal Circuit noted that 
interim rule 210.54(a)(2) does not address situations where the 
petitioner appeals an ID of an ALJ directly to the court, without 
first petitioning for review. ``As we read the current 
regulations'', the Federal Circuit stated, ``if a party does file a 
petition for review of the ID, any issue not raised therein `will be 
deemed to have been abandoned.''' ``There is no requirement'', the 
Federal Circuit continued, ``that a party file a petition for review 
or risk waiver of all adversely decided issues.'' 787 F.2d at 564.
---------------------------------------------------------------------------

    To ensure that the doctrine of exhaustion of administrative 
remedies can properly be applied to section 337 proceedings (in light 
of Warner Brothers and Darby), the Commission has drafted paragraph (b) 
of final rule 210.43 to provide that:

    (1) any issue not raised in a petition for review will be deemed 
to have been abandoned by the petitioning party and may be 
disregarded by the Commission in reviewing the initial determination 
(unless the Commission chooses to review the issue on its own 
initiative under final rule 210.44); and
    (2) a party's failure to file a petition for review of an ID 
shall constitute abandonment of all issues decided adversely to that 
party in the ID.

    The Commission notes that its goal under section 337 is to issue 
the best decision possible in the time available. That goal is 
furthered by encouraging all parties (prevailing as well as non-
prevailing) to petition for review of any and all errors they perceive 
in the ID on violation of section 337. The Commission believes that a 
Commission rule providing for a waiver will achieve the desired effects 
of (1) discouraging deliberate flouting of administrative processes, 
(2) protecting agency autonomy by affording the agency the first 
opportunity to apply its expertise, exercise its discretion, and 
correct its errors, (3) aiding judicial review by promoting the 
development of facts during the agency proceedings, and (4) promoting 
judicial economy by reducing duplication.

Contingent Petitions

    The ITCTLA suggested that the Commission consider whether to adopt 
a rule expressly providing for contingent petitions for review--i.e., 
petitions in which the petitioning party is satisfied with the ID, but 
would like to have the Commission review certain issues if the 
Commission decides to review issues raised by an opposing party. The 
ITCTLA claimed that permitting the filing of contingent petitions for 
review ``might spare the Commission significant work, and appears to 
have no down side.''
    The Commission notes that it occasionally receives contingent 
petitions for review of IDs. Owing to the administrative deadlines 
governing the ID/discretionary Commission review process, contingent 
petitions must be processed in the same time and manner as non-
contingent petitions. Paragraph (b) of final rule 210.43 accordingly 
clarifies this practice, by stating that any petition designated by the 
petitioner as a ``contingent'' petition for review shall be regarded as 
an ordinary (i.e., non-contingent) petition and shall be processed 
accordingly. The Commission thought that such clarification was 
necessary in light of the fact that a ``contingent petition'' is 
inconsistent with the requirement that all administrative remedies be 
exhausted before judicial review.
Section 210.44
    Proposed rule 210.44 covered sua sponte Commission review of IDs on 
matters other than permanent or temporary relief. It bore the heading 
``Commission review on its own motion of IDs on matters other than 
permanent or temporary relief.''
    In view of the Commission's decision to retain the current manner 
of processing IDs on violation of section 337 and not to adopt the 
procedure set forth in proposed rule 210.46 (as discussed below), the 
heading of final rule 210.44 has been changed to ``Commission review on 
its own motion of initial determinations on matters other than 
temporary relief.''
Sections 210.45 and 210.46
    Proposed rule 210.45 governed review of IDs on matters other than 
temporary or permanent relief. Paragraph (c) of proposed rule 210.45 
described Commission decisions on review of an ID concerning a matter 
other than temporary or permanent relief. Paragraph (a)(7) of proposed 
rule 210.46 similarly described Commission decisions on review of an ID 
concerning permanent relief (i.e., violation of section 337). Paragraph 
(c) of proposed rule 210.45 and paragraph (a)(7) of proposed rule 
210.46 were essentially the same as interim rule 210.56(c) 
(``Determination on Review'').\63\
---------------------------------------------------------------------------

    \63\Interim rule 210.56(c) provides as follows:
    (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 and may make any findings or conclusions 
that in its judgment are proper based on the record in the 
proceeding.
    19 CFR 210.56(c) (1993).
---------------------------------------------------------------------------

    The ITCTLA commented that paragraph (c) of proposed rule 210.45 and 
paragraph (a)(7) of proposed rule 210.46 should be amended to provide 
that the Commission's determination on review is made according to the 
same standard found in proposed rule 210.43(b), i.e., the standard by 
which the Commission determines whether to review an ID.\64\ The ITCTLA 
believes that the proposed change is warranted because the ALJs are 
highly experienced triers of fact and thus are entitled to have their 
opinions accorded the same deference called for under the standard set 
forth in proposed rule 210.43(b).
---------------------------------------------------------------------------

    \64\The standard set forth in proposed rule 210.43(b) was:
    1. that a finding or conclusion of material fact is clearly 
erroneous;
    2. that a legal conclusion is erroneous, without governing 
precedent, rule or law, or constitutes an abuse of discretion; or
    3. that the determination is one affecting Commission policy.
---------------------------------------------------------------------------

    The Commission views the ITCTLA's comment as an attempt to obtain 
reversal of the Commission opinion in Inv. No. 337-TA-324, Certain 
Acid-Washed Denim Garments and Accessories, which held that the 
standard which the Commission applies in reviewing an ID (as opposed to 
determining whether to review the ID) is a de novo standard.\65\ The 
Commission therefore declines to revise paragraph (c) of proposed rule 
210.45 and paragraph (a)(7) of proposed rule 210.46 in the manner that 
the ITCTLA suggested. (But see the discussion below concerning the 
Commission's decision not to adopt any part of proposed rule 210.46.)
---------------------------------------------------------------------------

    \65\The opinion stated in pertinent part as follows:
    In our view, the standard for review provided in interim rule 
210.56 is clear--the Commission may `make any findings or 
conclusions that in its judgment are proper based on the record in 
the proceedings.' Thus, once a sufficient basis for review has been 
shown and review has been ordered, the Commission examines for 
itself the record on the issues under review. It makes findings on 
those issues it believes are appropriate, unconstrained by the 
`clearly erroneous' standard of interim rule 210.54. Contrary to 
respondents' claim, there is in our view no basis for grafting the 
`clearly erroneous' standard from interim rule 210.54--which governs 
whether there is a basis for review--onto interim rule 210.56--which 
controls the Commission's decision upon review.
    Certain Acid-Washed Denim Garments and Accessories, Inv. No. 
337-TA-324, USITC Publication 2576, Opinion of the Commission at 4-5 
(Nov. 1992).
---------------------------------------------------------------------------

    In view of the Commission's decision to retain the current manner 
of processing IDs on violation of section 337 and not to adopt the 
procedure set forth in proposed rule 210.46 (as discussed below), the 
heading of final rule 210.45 has been worded to cover IDs on violation 
of section 337. The heading of proposed rule 210.45 was ``Commission 
review on its own motion of initial determinations on matters other 
than temporary or permanent relief.'' The heading of final rule 210.45 
is ``Commission review on its own motion of initial determinations on 
matters other than temporary relief.'' The Commission also made a 
similar change in paragraph (a) of the final rule.
Section 210.46
    Paragraph (a). Paragraph (a) of proposed rule 210.46 set forth a 
new procedure for the processing of an ID on permanent relief (i.e., 
violation of section 337) and the accompanying RD on remedy and bonding 
by the respondents. The ITCTLA suggested changing various aspects of 
the new process. The ITCTLA's comments will not be discussed here, as 
the Commission has determined not to adopt, at least at this time, the 
procedure set forth in paragraph (a) of proposed rule 210.46 for 
processing IDs on violation of section 337.\66\
---------------------------------------------------------------------------

    \66\The Commission has so far utilized the procedure set forth 
in paragraph (a) proposed rule 210.46 in one investigation, and will 
consider the experience gained in that case, when the Commission 
determines at a later date whether paragraph (a) of final rule 
210.46 should be modified to incorporate some or all of the 
procedures set forth in the proposed rule.
---------------------------------------------------------------------------

    Paragraph (a) of final rule 210.46 provides that IDs on violation 
of section 337 will be processed in the manner set forth in final rules 
210.43 through 210.45.
    The only provision that has been retained from paragraph (a) of 
proposed rule 210.46 is the one stating that the Commission will issue 
a notice setting deadlines for written submissions from the parties, 
other Federal agencies, and interested members of the public on the 
issues of remedy, the public interest, and bonding by the respondents. 
In those submissions, the parties may assert their arguments concerning 
the RD issued by the ALJ pursuant to final rule 210.42(a)(ii) on remedy 
and bonding by respondents.
    An additional issue raised by the ITCTLA concerned paragraph (a)(7) 
of proposed rule 210.46. That paragraph indicated that the Commission 
would issue a notice, on or before the statutory deadline in each 
investigation, setting forth its determinations on all issues, 
including whether the Commission had affirmed, modified, reversed, or 
set aside the ID in whole or in part.
    The ITCTLA commented that paragraph (a)(7) should be revised to 
include a provision dealing with review of motions for summary 
determination and motions to terminate an investigation. The ITCTLA 
noted that as the interim and proposed rules are currently written, an 
ALJ can issue an ID granting a motion for summary determination or a 
motion to terminate, but the only time limit that the Commission has is 
the deadline for concluding the investigation. The ITCTLA noted further 
that as a consequence of that omission and a deadlocked vote, the 
Commission did not rule on whether to reverse the ALJ's ID granting 
summary determination in Inv. No. 337-TA-334, Certain Condensers, Parts 
Thereof and Products Containing Same, Including Air Conditioners for 
Automobiles, until seven months after the ID was issued. The ITCTLA 
added that the Commission reversed the ALJ, and that the parties were 
left with very little time to prepare for a hearing even though the 
case was declared ``more complicated.''
    To ensure that this does not happen again, the ITCTLA suggested 
that the following text be added to the end of proposed rule 
210.46(a)(7):

    In cases in which the initial determination results from the 
granting of a motion for summary determination under Rule 210.18 or 
a motion to terminate under Rule 210.21, the Commission will issue a 
notice stating whether the Commission has affirmed, modified, 
reversed, or set aside the initial determination in whole or part on 
or before the sixtieth day after the issuance of the ID.

    The final rules do not contain a provision like that recommended by 
the ITCTLA. There has been no recurrence of delays of the sort that 
occurred in the Condensers investigation. The Commission thus does not 
believe it necessary for the final rules to impose a 60-day deadline 
for completing Commission review of IDs granting motions for summary 
determination or termination of an investigation in whole or part.

Rules Concerning Judicial Review

    Interim rule 210.71 states that any person adversely affected by a 
final determination under section 337 can appeal to the Federal 
Circuit. The Commission omitted a comparable provision from the final 
rules on the grounds that it merely repeated what was set forth in the 
statute.
    The ITCTLA commented that the final rules should contain provisions 
explaining when a determination is considered ``final'' and thus is 
ripe for appeal. The ITCTLA also wants the Commission to adopt rules 
stating that the period for filing an appeal begins to run for all 
issues at the same time. In the ITCTLA's opinion, such rules are needed 
in order to facilitate the Federal Circuit's consolidation of multiple 
appeals arising out of the same investigation, to prevent the parties 
from filing multiple notices of appeals because they are not certain 
how to calculate the deadline for filing, and to eliminate the need for 
the Federal Circuit ``to sort out the mess.''
    The Commission believes that its promulgation of such rules would 
be ultra vires, would encroach upon the jurisdiction of the Federal 
Circuit, and would not have the desired effect since the Federal 
Circuit would not be bound by them. The final rules for part 210 thus 
do not contain provisions of the sort the ITCTLA advocated.
Section 210.50
    Paragraph (a). Paragraph (a) of proposed rule 210.50 stated that 
when the Commission is considering whether to grant some form of 
permanent relief, the submissions from parties, other Federal agencies, 
and interested members of the public concerning the issues of remedy, 
the public interest, and bonding shall be filed by the deadlines 
specified in ``the Commission notice issued pursuant to 
Sec. 210.46(a)(5) of this part.'' Since the Commission has determined 
not to adopt paragraph (a)(5) of proposed rule 210.46, the appropriate 
cross-references is to paragraph (a) of that rule. A cross-reference to 
``Sec. 210.46(a)'' accordingly appears in paragraph (a) of final rule 
210.50.
    Paragraph (a) of proposed rule 210.50 also provided that any 
written submissions that the Commission receives from other Federal 
agencies or interested members of the public concerning remedy, the 
public interest, or bonding by respondents would be available for 
public inspection in the Commission Secretary's Office. Unlike the 
interim rule upon which it was based, paragraph (a) of proposed rule 
210.50 did not require that such submissions be served on the parties 
to the investigation.67 The preamble also noted that the parties 
could contact the Commission staff to learn whether any non-party 
submissions were expected or had been filed and that they could readily 
obtain copies of the submission from the Secretary's Office.68
---------------------------------------------------------------------------

    \6\7As the preamble to proposed rule 210.50(a) explained, the 
Commission thought it inappropriate to require another Federal 
agency to serve copies of its submission on the parties unless the 
agency also is a party to the proceeding (as, e.g., through 
intervention). The Commission also thought that the burden of 
serving parties should not be imposed on members of the public. See 
57 FR at 52885.
    \6\8See 57 FR at 52885.
---------------------------------------------------------------------------

    The ITCTLA commented that it is understandable that the Commission 
wishes to minimize the burden on nonparty submitters. The ITCTLA also 
speculated that eliminating the service requirement for such 
submissions might encourage more nonparties to file them. The ITCTLA 
also is of the opinion, however, that the Commission should be required 
to notify each party when a nonparty submission arrives, so that the 
parties will not be forced to unnecessarily monitor the Commission 
docket.
    The Commission notes that the ITCTLA's argument presupposes that 
the parties (and/or their attorneys) would be entitled to see every 
nonparty submission that is filed. That may not be the case, however. 
The Commission occasionally receives written submissions from other 
agencies (such as the U.S. Customs Service) which contain information 
that is not to be disclosed to anyone other than the Commission and 
Commission staff who are assigned to the investigation.69 The 
Commission also sometimes receives submissions from interested persons 
outside of the Federal government, who request that their submissions 
not be shown to the parties.
---------------------------------------------------------------------------

    \6\9The Commission has received, for example, submissions from 
the U.S. Customs Service, which Customs has explicitly requested not 
to be made available to anyone other than the Commission and the 
Commission staff (and personnel at other agencies who are involved 
in Presidential review of Commission remedial orders).
---------------------------------------------------------------------------

    In addition, it would unduly burden the Docket Section staff of the 
Secretary's Office if those persons were required to monitor all remedy 
submissions and telephone each party when a nonparty submission is 
received. 70
---------------------------------------------------------------------------

    \7\0Some section 337 investigations have large numbers of 
respondents. There were 112 respondents, for example, in Inv. No. 
337-TA-112, Certain Cube Puzzles (1983).
---------------------------------------------------------------------------

    Paragraph (a) of final rule 210.50 thus does not contain the 
notification requirement that the ITCTLA requested.

Subpart H--Temporary Relief

Section 210.52
    Proposed rule 210.52 concerned the filing and content of motions 
for temporary relief.
    Paragraph (a). Paragraph (a) of proposed rule 210.52 stated that a 
complaint requesting temporary relief must be accompanied by a motion 
for such relief containing information relevant to the four factors the 
Commission considers in determining whether to grant temporary relief. 
Paragraph (a) of proposed rule 210.52 also explained that in 
determining whether to grant temporary relief, the Commission would 
apply the standards the U.S. Court of Appeals for the Federal Circuit 
uses in determining whether to affirm lower court decisions granting 
preliminary injunctions and that the motion for temporary relief must 
contain a detailed statement of specific facts bearing on the factors 
the Federal Circuit would consider.
    The ITCTLA commented that the proposed rule did not accurately 
reflect what the test is, and that the final rule should indicate that 
the motion for temporary relief must contain a detailed statement of 
specific facts ``bearing on the factors that the Federal Circuit [has] 
stated that a district court must consider in granting a preliminary 
injunction.'' The Commission has made that change in paragraph (a) of 
final rule 210.52.
    The ITCTLA also commented that the Commission should rewrite the 
discussion in the preamble of the proposed rules which deals with 
articulation of the district court standards, because ambiguity is 
introduced concerning the burden of proof.
    The Commission sees no reason to rewrite the commentary in 
question. Instead, the Commission recommends that, for purposes of 
drafting or ascertaining the validity of arguments for motions for 
temporary relief or responses thereto, parties and other interested 
persons should examine the most recent Commission and Federal Circuit 
decisions rather than the commentary to the proposed rules.
    Paragraph (e). Paragraph (e) of proposed rule 210.52 described how 
the Commission would be likely to compute the amount of the 
complainant's bond (if one is required as a prerequisite to the 
issuance of a temporary exclusion order or a temporary cease and desist 
order. It provided a tiered bond schedule based on sales of the product 
at issue and licensing royalties from the intellectual property right 
at issue.
    The ITCTLA commented that it was unclear whether the $10,000 bond 
amount prescribed in the first tier of the schedule--i.e., for sales 
and licensing royalties of less than $1 million--would apply if the 
complainant has had no sales. The ITCTLA noted that this question could 
arise if the domestic industry is in the process of being established 
or if the complainant has been unable to build up sales because of the 
respondents' presence in the market. The ITCTLA thus suggested that 
``the scale should be modified to reflect the recognition that such 
circumstances may exist.''
    The Commission does not see the need to make the change the ITCTLA 
has suggested. Proposed rule 210.52(e) explicitly stated that the table 
was likely to be applied ``[i]n cases where a domestic industry exists 
and domestic sales of the product in question have commenced and have 
not been de minimis.'' This proviso precluded application of the 
schedule in situations of the sort that the ITCTLA has described.
    The Commission also sees no need to revise any other provision of 
paragraph (e) of proposed rule 210.52 ``to reflect recognition that 
[the circumstances the ITCTLA cited] may exist.'' That paragraph 
expressly provided that ``[i]n cases in which the aforesaid schedule 
would not be appropriate, the amount of the bond will be determined on 
a case-by-case basis.'' Paragraph (e) also indicated that in such 
cases, the motion for temporary relief should explain (1) why the 
prescribed schedule is not appropriate, and (2) the theory the 
complainant believes is appropriate for computing the amount of the 
bond.
    The Commission thus has adopted paragraph (e) of proposed rule 
210.52 as a final rule without making the changes the ITCTLA requested.
Section 210.55
    Proposed rule 210.55 discussed redaction of confidential business 
information from the copies of the complaint and motion for temporary 
relief which the complainant is required to serve on each proposed 
respondent and the appropriate embassies.
    Paragraph (b). Paragraph (b) of proposed rule 210.55 described the 
action that the Commission would take upon determining that the 
confidential designation had been abused in the preparation of 
sanitized service copies of the complaint and motion for temporary 
relief.
    The ITCTLA commented that it was not clear whether paragraph (b) of 
proposed rule 210.55 provides the complainant with the right of appeal 
afforded under Commission rules 201.6(e) and (f).71 The ITCTLA 
also expressed the opinion that the final rule should provide the 
standard that the Commission intends to apply to determine whether 
there have been over-designations.
---------------------------------------------------------------------------

    \7\1Commission rule 201.6(e) provides the procedure for 
discretionary appeals to the Commission from the Secretary's denial 
of confidential treatment for a submission or portion thereof, while 
Commission rule 201.6(f) governs appeals from the Secretary's 
granting of such treatment for a submission or portion thereof. See 
19 CFR 201.6(e) and (f) (1993).
---------------------------------------------------------------------------

    The Commission did not intend for paragraph (b) of proposed rule 
210.55 (or the corresponding paragraph of the final rule) to provide 
the complainant with the right of appeal afforded under Commission 
rules 201.6(e) and (f). The Commission does not think it necessary for 
the final rule to provide a standard for determining whether the 
confidential designation has been abused. Such determinations are more 
appropriately made on a case-by-case basis.
    Potential complainants should be aware that abuse of the 
confidential designation and the consequent over-redaction of 
confidential information from the service copies of a complaint and 
motion for temporary relief may be sanctionable under final rule 210.4 
depending on the facts.
Section 210.58
    Proposed rule 210.58 indicates that the Commission will determine 
whether to provisionally accept a motion for temporary relief and 
institute an investigation in response to the complaint by a prescribed 
deadline, unless exceptional circumstances preclude adherence to that 
deadline.
    The ITCTLA commented that it was not clear, under proposed rule 
210.58 or proposed rule 210.10, what ``exceptional circumstances'' are. 
The ITCTLA questioned whether a definition of that term is desirable.
    The Commission sees no need to add a definition of that term to the 
final rules. The fact that circumstances are ``exceptional'' strongly 
suggests that they are not susceptible to definition. Final rule 210.58 
thus does not differ substantively from the proposed rule.
Section 210.70
    Proposed rule 210.70 addressed the possible forfeiture of a 
complainant's temporary relief bond when the Commission determines, 
after issuing a temporary remedial order conditioned on a bond, that 
one or more respondents have not violated section 337.\72\
---------------------------------------------------------------------------

    \72\The forfeiture authority appears in the legislative history 
of the statute, but does not appear in the statute itself. See H.R. 
Rep. No. 576 at 635; 134 Cong. Rec. H2044 (Apr. 20, 1988); 133 Cong. 
Rec. S10365 (July 21, 1987).
---------------------------------------------------------------------------

    Paragraph (c). Paragraph (c) of proposed rule 210.70 enumerated the 
criteria that the presiding ALJ and the Commission will consider in 
determining whether to grant a motion for forfeiture of a complainant's 
temporary relief bond in whole or part. Paragraph (c)(2) indicated that 
in determining whether to grant the motion, the ALJ and the Commission 
will consider whether the complainant's filing of the motion for 
temporary relief was justified under the standard set forth in proposed 
rule 210.4(b).

    In final rule 210.70, paragraph (c)(2) incorporates--
    1. the standards of conduct articulated in paragraph (c) of 
final rule 210.4, and
    2. the guidelines in paragraph (d) of final rule 210.4 for 
determining whether those standards were violated.

    Hence, the approach that the ALJ and the Commission will take in 
bond forfeiture proceedings will be the following:

    1. The ALJ and the Commission will determine whether the 
complainant or its attorneys, by presenting the motion for temporary 
relief (or a disputed portion thereof) to the presiding ALJ and the 
Commission (by signing, filing, submitting, or later advocating it), 
wrongfully certified that to the best of their knowledge, 
information, and belief, formed after an inquiry reasonable under 
the circumstances--
    (a) the motion for temporary relief was not being presented for 
any improper purpose, such as to harass or to cause unnecessary 
delay or needless increase in the cost of the investigation;
    (b) the claims, defenses, and other legal contentions in the 
motion were warranted by existing law or by a nonfrivolous argument 
for the extension, modification, or reversal of existing law or the 
establishment of new law;
    (c) the allegations and other factual contentions had 
evidentiary support or, if specifically so identified, were likely 
to have evidentiary support after reasonable opportunity for further 
investigation or discovery; and
    (d) the denials of factual contentions were warranted on the 
evidence or, if specifically so identified, were reasonably based on 
a lack of information or belief.
    2. The ALJ and the Commission will keep in mind that the 
presentation of the motion for temporary relief (or the relevant 
portion thereof) by the complainant and its attorneys need not have 
been frivolous in its entirety in order for the ALJ or the 
Commission to determine that the standard of conduct articulated 
above was violated. If the ALJ or the Commission determines that any 
aspect of the presentation was false, frivolous, misleading, or 
otherwise in violation of the standards of conduct articulated 
above, the complainant may be ordered to forfeit its temporary 
relief bond, in whole or part.
    3. In determining whether any of the prescribed standards of 
conduct has been violated, the ALJ and the Commission will consider 
whether the presentation of the motion for temporary relief (or the 
disputed portion thereof) was objectively reasonable under the 
circumstances.\73\

    \73\Consideration 1 above incorporates the standards of conduct 
set forth in paragraph (c) of final rule 210.4. Considerations 2 and 
3 are based on the guidelines that appear in paragraph (d) of rule 
210.4 for determining whether the 210.4(c) standards have been 
violated.
---------------------------------------------------------------------------

    The Commission decided against drafting paragraph (c) of final rule 
210.70 to incorporate the final rule 210.4(d) prohibition against 
imposing monetary sanctions on a party by reason of misconduct by the 
party's attorney in the presentation of legal arguments. In reaching a 
decision not to incorporate that prohibition, the Commission notes that 
adherence to the entire FRCP 11/final rule 210.4 standard is not 
required.\74\
---------------------------------------------------------------------------

    \74\As interested persons may recall, the legislative history 
providing authorization for the forfeiture of complainants' 
temporary relief bonds did not direct the Commission to use a 
particular FRCP as a model. The legislative history simply stated 
that the forfeiture authority should operate in the same way that 
respondents' temporary relief bonds ``revert'' to the U.S. Treasury 
when the Commission determines that imported articles that were 
permitted to enter the United States under a bond violate section 
337. See H.R. Rep. No. 576 at 635; 134 Cong. Rec. H2044 (Apr. 20, 
1988); 133 Cong. Rec. S10365 (July 21, 1987).
    The Commission decided, on its own initiative, to use the FRCP 
11 standard of conduct required by proposed rule 210.4(b) in 
determining whether a complainant should be ordered to forfeit its 
temporary relief bond in whole or part. The Commission agreed with 
commenters on the interim rules who suggested that the adoption of a 
single standard of conduct would eliminate the need to rationalize 
the differences between the rule governing forfeiture of a 
complainant's temporary relief bond as a sanction for abusing the 
temporary relief process and the general rule concerning sanctions 
for abuse of process. See 57 FR at 52860-52861 (the preamble to 
proposed rule 210.70).
---------------------------------------------------------------------------

    The Commission notes further that forfeiture of a temporary relief 
bond, in whole or in part, is a monetary sanction imposed on the 
complainant--not its attorneys. If the amended FRCP 11/final rule 210.4 
provisions had been made applicable in their entirety to temporary 
relief bond forfeiture proceedings, the ALJ and the Commission would 
have to take into account the conduct of the complainant's lawyers, as 
well as that of the complainant, in determining whether the 
presentation of the motion for temporary relief (or the relevant 
portion thereof) violated any of the prescribed standards,\75\ and the 
complainant would be exempt from forfeitures based on misconduct by its 
attorneys in connection with the presentation of legal arguments.\76\
---------------------------------------------------------------------------

    \75\See amended FRCP 11(b) and final rule 210.4(c).
    \76\See amended FRCP 11(c)(2)(B) and final rule 210.4(d). Both 
provide that monetary sanctions may not be imposed against a 
represented party for a violation of the requirement that ``to the 
best of the person's knowledge, information, and belief, formed 
after an inquiry reasonable under the circumstances, * * * the 
claims, defenses, and other legal contentions therein are warranted 
by existing law or by a nonfrivolous argument for the extension, 
modification, or reversal of existing law or the establishment of 
new law.''
---------------------------------------------------------------------------

    The Commission believes that a decision as to whether a complainant 
must forfeit its temporary relief bond in whole or part should be made 
on a case-by-case basis.\77\ In a case in which the ALJ or the 
Commission finds misconduct by complainant's retained counsel, but 
decides that the misconduct should not be held against the complainant 
for purposes of bond forfeiture, separate proceedings can be initiated 
against such counsel.\78\
---------------------------------------------------------------------------

    \77\There may be cases in which the complainant's in-house 
counsel was equally--or primarily--responsible for the retained 
counsel's misconduct in the presentation of legal arguments 
concerning the motion for temporary relief. In such a case, it may 
be appropriate for the complainant to be penalized for its in-house 
counsel's actions, by having to forfeit all or a percentage of the 
temporary relief bond (depending on the degree of the in-house 
counsel's culpability and other relevant facts). On the other hand, 
if a forfeiture inquiry uncovers misconduct by complainant's 
retained counsel that did not involve the in-house counsel or any 
other officer or employee of the complainant, the complainant's lack 
of involvement may be a relevant equitable consideration under 
paragraph (c)(5) of final rule 210.70, and thus may be grounds for 
the Commission to either (a) decline to order forfeiture of the 
bond, or (b) order forfeiture of a smaller percentage than the 
Commission would have ordered if the complainant's in-house counsel 
(or other officers or employees) had been involved.
    \78\Specifically, the ALJ or the Commission can issue an order 
directing the retained counsel to show cause why his conduct was not 
an abuse of process warranting the payment of a penalty and/or a 
nonmonetary sanction under final rule 210.4. See paragraphs 
(d)(1)(B) and (d)(2) of final rule 210.4.
---------------------------------------------------------------------------

    Paragraph (d). Paragraph (d) of proposed rule 210.70 stated that 
motions to stay temporary relief bond forfeiture proceedings would not 
be granted.
    The ITCTLA commented that the final rule should provide for 
automatic stay of all bond forfeitures. The ITCTLA explained that--

    There are adequate safeguards throughout the rules to deter 
meritless section 337 temporary relief requests, making an absolute 
bar on staying forfeiture proceedings while an appeal is pending 
irrelevant to this concern. There is little inconvenience to 
respondents since they do not receive the bond amount, and the bond 
amount is of little significance to the U.S. Treasury. Complainants 
would prefer to keep the bond outstanding rather than paying the 
bond amount, especially since the bond may ultimately be returned. 
The current rule forces the complainant to incur additional legal 
expenses to recover the forfeited bond after winning on appeal. This 
is unnecessary and not an efficient allocation of the complainant's 
and the government's resources. Providing for an automatic stay of 
bond forfeiture would appear to better serve all parties.

    The ITCTLA went on to say that if the Commission does not favor 
automatic stays of bond forfeitures, final rule 210.70(d) should 
provide for stays of forfeiture proceedings or the effective date of a 
forfeiture order on a case-by-case basis. The ITCTLA believes that in a 
case, for example, in which the complainant has based its appeal on a 
legal issue over which the Federal Circuit has not ruled, it would be 
appropriate for the Commission to stay forfeiture of the bond until the 
Federal Circuit has ruled.
    The Commission notes that the legislative history of the bond 
forfeiture authority indicates that (1) the Commission's temporary 
relief bond forfeitures are to be effected in the same manner that the 
U.S. Customs Service collects liquidated damages on respondents' 
section 337 bonds, and (2) the implementing Customs regulations (19 CFR 
Part 172) do not provide for stays on the assessment of liquidated 
damages pending the outcome of judicial review of the relevant 
Commission determination. The Customs procedures have not changed in 
that regard. The Commission accordingly has not drafted paragraph (d) 
of final rule 210.70 to provide for stays of bond forfeitures.
    Paragraph (d) of proposed rule 210.70 also provided that if the 
complainant wins on appeal, the complainant can file a petition 
requesting a refund of the amount of the bond forfeited or that the 
Commission may determine to provide a refund sua sponte. The ITCTLA 
commented there is no reason for the Government to retain the forfeited 
bond amount and that a refund should be forthcoming as a matter of 
procedure, and should not be dependent upon the complainant filing for 
a refund or the Commission considering the issue sua sponte. The 
Commission agrees and has drafted paragraph (d) of the final rule to 
provide that if the complainant prevails on appeal, a refund will be 
forthcoming as a matter of procedure (so that the complainant will not 
have to file for a refund and the Commission will not have to consider 
the issue sua sponte).

Subpart I--Enforcement Procedures and Advisory Opinions

Section 210.71
    Proposed rule 210.71 discussed the gathering of information 
relevant to the enforcement of Commission orders.
    Paragraph (a). Paragraph (a) of proposed rule 210.71 authorized the 
Commission to require persons to report facts that will aid the 
Commission in determining whether a remedial or consent order is being 
complied with and whether conditions that led to the order have 
changed.
    The ITCTLA objected to this rule in part, apparently because it 
provided that the Commission can require information to aid the 
Commission in policing compliance with exclusion orders, even though it 
is the Customs Service and not the Commission that enforces such 
orders. The Commission has drafted paragraph (a) of the final rule in a 
manner which should not create the impression that exclusion orders are 
enforced by the Commission and not by the Customs Service.
    The ITCTLA also objected to paragraph (a) of the proposed rule on 
the grounds that it provides, in effect, that the Commission may 
require signatories to consent order agreements to make reports that 
were not part of their agreement. The ITCTLA explained that under 
proposed rule 210.21(c)(3), signatories to consent order agreements 
must agree not to impede or challenge in court any Commission effort to 
gather information pursuant to subpart I of part 210 (the proposed 
rules governing enforcement procedures and advisory opinions). Thus, a 
respondent who consents and stipulates to the entry of a consent order 
is also stipulating to permitting the Commission to request any 
information it deems pertinent to assisting it in determining whether 
and to what extent the respondent is complying with the consent order. 
The ITCTLA pointed out that a respondent could consent to a certain 
form of consent order, but the Commission could subsequently add 
reporting requirements to that form and issue the order in a form that 
the respondent does not consent to, and the respondent will essentially 
be without recourse, because it has waived the right to challenge the 
order in court.
    The ITCTLA did not specifically ask the Commission to revise the 
relevant aspects of proposed rule 210.71, and the Commission does not 
think that any change is warranted. The Commission expects parties who 
execute consent order settlements to have read and thought through the 
consequences and implications of final rules 210.21(c)(3) and 210.71(a) 
before signing the agreement and asking the Commission to terminate the 
investigation in whole or part on the basis of the agreed upon consent 
order. A settling respondent who consents and stipulates to the entry 
of a consent order thus should be aware that it is also stipulating to 
permitting the Commission to require any additional compliance reports 
the Commission deems necessary or appropriate to ascertain whether the 
respondent is complying with the consent order.
    The Commission notes also that because consent orders must be 
enforced, if necessary, by the Commission, it is not unreasonable for 
the Commission to impose its own reporting requirements so that it can 
know if the consent order is being complied with by the party to whom 
it is directed.
Section 210.74
    Proposed rule 210.74 concerned the modification of reporting 
requirements.
    Paragraph (a). Paragraph (a) of proposed rule 210.74 governed 
modification of reporting requirements for section 337 remedial orders.
    The ITCTLA commented that paragraph (a) contained the same kind of 
ambiguity that is present in proposed rule 210.71(a)--namely, it 
indicates that the Commission can modify reporting requirements of 
exclusion orders to aid the Commission in policing compliance with such 
orders, even though it is the U.S. Customs Service and not the 
Commission that enforces exclusion orders.
    The Commission has drafted paragraph (a) of the final rule in a 
manner which should not create the impression that exclusion orders are 
enforced by the Commission and not by the Customs Service.
Section 210.75
    Proposed rule 210.75 set out the procedure to be used in 
proceedings to enforce exclusion orders, cease and desist orders, and 
consent orders.
    Paragraph (c). Paragraph (c) of proposed rule 210.75 stated that 
the Commission need not give prior notice to any person before 
initiating civil action to enforce a remedial or consent order.
    The ITCTLA commented that the court in which the civil action is 
initiated determines the type, timing, and sufficiency of the notice. 
For that reason, the ITCTLA suggested that final rule be drafted to 
state that the Commission need not give notice of its seeking judicial 
enforcement of an order, except as required by the court in which the 
civil action is initiated. The Commission has drafted paragraph (c) of 
final rule 210.75 in that manner.

Distribution Table

    As stated above, the organization of the final rules differs 
significantly from that of the interim rules. To determine which final 
rule is replacing a particular interim rule, consult the following 
table.

------------------------------------------------------------------------
                 Interim rule                          Final rule       
------------------------------------------------------------------------
210.1.........................................  210.1                   
210.2.........................................  210.2                   
210.4.........................................  210.3                   
210.5(a)......................................  210.4(a)                
210.5(b)......................................  210.4(b)-(e)            
                                                (see also 210.25)       
210.5(c)......................................  210.4(f)                
210.5(d)......................................  210.4(g)                
210.6.........................................  210.5(a) and (b)        
                                                210.5(c)                
                                                210.5(d)                
210.7.........................................  210.6                   
210.8.........................................  210.7                   
210.10........................................  210.8                   
210.11........................................  210.9                   
210.12........................................  210.10                  
210.13........................................  210.11                  
210.20........................................  210.12(a)-(g)           
                                                210.12(h)               
210.21........................................  210.13                  
210.22........................................  210.14(a)-(c)           
210.23........................................  210.14(d)               
210.24(a)-(d).................................  210.15                  
210.24(e)(1)..................................  210.52                  
210.24(e)(2)..................................  210.53(a)               
210.24(e)(3)..................................  210.53(b)               
210.24(e)(4)..................................  210.54                  
210.24(e)(5)..................................  210.55                  
210.24(e)(6)..................................  210.56                  
210.24(e)(7)..................................  210.57                  
210.24(e)(8)..................................  210.58                  
210.24(e)(9)..................................  210.59                  
210.24(e)(10).................................  (see 210.58)            
210.24(e)(11).................................  210.60                  
210.24(e)(12).................................  210.61                  
210.24(e)(13).................................  210.62                  
210.24(e)(14).................................  210.63                  
210.24(e)(15).................................  210.64                  
210.24(e)(16).................................  210.65                  
210.24(e)(17).................................  210.66                  
210.24(e)(18).................................  210.67                  
210.25........................................  210.16 and 210.17       
210.26........................................  210.19                  
210.30 (a), (b), and (d)......................  210.27 (a), (b), and (c)
210.30(c).....................................  (see 210.61)            
                                                210.27(d)               
                                                (see also 210.25)       
210.31........................................  210.28(a)-(h)           
                                                210.28(i)               
210.32........................................  210.29                  
210.33........................................  210.30                  
210.34........................................  210.31                  
210.35........................................  210.32(a)-(e)           
                                                210.32(f)               
                                                210.32(g)               
210.36........................................  210.33 (a) and (b)      
                                                210.33(c)               
                                                (see also 210.25)       
210.37........................................  210.34(a)-(c)           
                                                (see also 210.25)       
                                                210.34(d)               
210.40........................................  210.35                  
210.41........................................  210.36                  
210.42........................................  210.37                  
210.43........................................  210.38                  
210.44(a)-(d).................................  210.39                  
210.44(e).....................................  210.20                  
                                                (see also 210.42(a)(2)) 
210.50........................................  210.18                  
210.51 (a) and (b)............................  210.21 (a) and (b)      
210.51(c)\79\.................................  210.21(c)               
210.51(d).....................................  210.21(d) and 210.41    
210.52........................................  210.40                  
210.53(a).....................................  210.42(a)(i)            
210.53(b).....................................  210.42(b)               
210.53(c)-(i).................................  210.42(c)-(i)           
210.53(j).....................................  210.42 (b) and          
                                                (c) and 210.70(c)       
2210.54.......................................  210.43 and 210.46(a)    
210.55........................................  210.44                  
210.56........................................  210.45                  
210.57........................................  210.49                  
210.58(a).....................................  210.50(a)               
210.58(b) (1) and (2).........................  210.50(b) (1) and (2)   
210.58(b)(3)..................................  210.68(a)               
210.58(b)(4)..................................  210.68(b)               
210.58(b)(5)..................................  210.68(c)               
210.58(b)(6)..................................  210.68(d)               
210.58(b)(7)..................................  210.69(a)-(c)           
210.58(b)(8)..................................  210.69(d)               
210.58(c)(1)..................................  210.70 (a) and (c)      
210.58(c)(2)..................................  210.70(b)               
210.58(c)(3)..................................  210.70(e)               
210.58(c)(4)..................................  210.70(c)               
210.58(c)(5)..................................  210.70(d)               
210.59(a).....................................  210.22 (a) and          
                                                (b), 210.23, and        
                                                210.51 (a) and (c)      
210.59(b).....................................  210.22(c),              
                                                210.23, and             
                                                210.51(b) and (c)       
210.60........................................  210.47                  
210.61........................................  210.48                  
210.70........................................  210.24                  
210.71........................................  ........................
211.01........................................  (\80\)                  
211.10........................................  ........................
211.20........................................  210.21(c)(1)            
211.21........................................  210.21(c)(2)            
211.22........................................  210.21(c)(3)            
211.50 (a) and (b)............................  (\81\)                  
211.50(c).....................................  ........................
211.51........................................  210.71                  
211.52........................................  210.72                  
211.53........................................  210.73                  
211.54........................................  210.79                  
211.55........................................  211.74                  
211.56........................................  210.75                  
211.57........................................  210.76                  
211.58........................................  210.77                  
211.59........................................  210.78                  
------------------------------------------------------------------------
\79\See also the entries for interim rules 211.20 through 211.22.       
\80\But see final rule 210.1 and the definition in final rule 210.3 of  
  the term ``related proceeding.''                                      
\81\Id.                                                                 

Derivation Table

    To determine which interim rule is the basis, in whole or part, for 
a particular final rule, consult the following table:

------------------------------------------------------------------------
                  Final rule                          Interim rule      
------------------------------------------------------------------------
210.1.........................................  210.1                   
210.2.........................................  210.2                   
210.3.........................................  210.4                   
210.4(a)......................................  210.5(a)                
210.4(b)-(e)..................................  210.5(b)                
210.4(f)......................................  210.5(c)                
210.4(g)......................................  210.5(d)                
210.5 (a) and (b).............................  210.6                   
210.5(c)......................................  ........................
210.5(d)......................................  ........................
210.6.........................................  210.7                   
210.7.........................................  210.8                   
210.8.........................................  210.10                  
210.9.........................................  210.11                  
210.10........................................  210.12                  
210.11........................................  210.13                  
210.12(a)-(g).................................  210.20                  
210.12(h).....................................  ........................
210.13........................................  210.21                  
210.14(a)-(c).................................  210.22                  
210.14(d).....................................  210.23                  
210.15........................................  210.24 (a)-(d)          
210.16........................................  210.25                  
210.17........................................  210.25                  
210.18........................................  210.50                  
210.19........................................  210.26                  
210.20........................................  210.44(e)               
210.21 (a) and (b)............................  210.51 (a) and (b)      
210.21(c).....................................  210.51(c)               
210.21(c)(1)..................................  211.20                  
210.21(c)(2)..................................  211.21                  
210.21(c)(3)..................................  211.22                  
210.21(d).....................................  210.51(d)               
210.22 (a) and (b)............................  210.59(a)               
210.22(c).....................................  210.59(b)               
210.23........................................  210.59 (a) and (b)      
210.24........................................  210.70                  
210.25........................................  ........................
210.26........................................  ........................
210.27 (a), (b), and (c)......................  210.30 (a),             
                                                (b), and (d)            
210.27(d).....................................  ........................
210.28(a)-(h).................................  210.31                  
210.28(i).....................................  ........................
210.29........................................  210.32                  
210.30........................................  210.33                  
210.31........................................  210.34                  
210.32(a)-(e).................................  210.35                  
210.32(f).....................................  ........................
210.32(g).....................................  ........................
210.33 (a) and (b)............................  210.36                  
210.33(c).....................................  ........................
210.34 (a)-(c)................................  210.37                  
210.34(d).....................................  ........................
210.35........................................  210.40                  
210.36........................................  210.41                  
210.37........................................  210.42                  
210.38........................................  210.43                  
210.39........................................  210.44 (a)-(d)          
210.40........................................  210.52                  
210.41........................................  210.51(d)               
210.42(a)(i)..................................  210.53(a)               
210.42(a)(ii).................................  ........................
210.42(a)(2)..................................  (but see 210.44(e))     
210.42(b).....................................  210.53 (b) and (j)      
210.42(c).....................................  210.53 (c) and (j)      
210.42 (d)-(i)................................  210.53 (d)-(i)          
210.43........................................  210.54                  
210.44........................................  210.55                  
210.45........................................  210.56                  
210.46........................................  210.54                  
210.47........................................  210.60                  
210.48........................................  210.61                  
210.49........................................  210.57                  
210.50(a).....................................  210.58(a)               
210.50(b).....................................  210.58(b) (1) and (2)   
210.51(a).....................................  210.210.59(a)           
210.51(b).....................................  210.210.59(b)           
210.51(c).....................................  210.59 (a) and (b)      
210.52........................................  210.24(e)(1)            
210.53(a).....................................  210.24(e)(2)            
210.53(b).....................................  210.24(e)(3)            
210.54........................................  210.24(e)(4)            
210.55........................................  210.24(e)(5)            
210.56........................................  210.24(e)(6)            
210.57........................................  210.24(e)(7)            
210.58........................................  210.24(e)(8)            
210.59........................................  210.24(e)(9)            
210.60........................................  210.24(e)(11)           
210.61........................................  210.24(e)(12)           
210.62........................................  210.24(e)(13)           
210.63........................................  210.24(e)(14)           
210.64........................................  210.24(e)(15)           
210.65........................................  210.24(e)(16)           
210.66........................................  210.24(e)(17)           
210.67........................................  210.24(e)(18)           
210.68(a).....................................  210.58(b)(3)            
210.68(b).....................................  210.58(b)(4)            
210.68(c).....................................  210.58(b)(5)            
210.68(d).....................................  210.58(b)(6)            
210.69 (a)-(c)................................  210.210.58(b)(7)        
210.69(d).....................................  210.58(b)(8)            
210.70(a).....................................  210.58(c)(1)            
210.70(b).....................................  210.58(c)(2)            
210.70(c).....................................  210.58(c) (1) and (4)   
210.70(d).....................................  210.58(c)(5)            
210.70(e).....................................  210.58(c)(3)            
210.71........................................  211.51                  
210.72........................................  211.52                  
210.73........................................  211.53                  
210.74........................................  211.55                  
210.75........................................  211.56                  
210.76........................................  211.57                  
210.77........................................  211.58                  
210.78........................................  211.59                  
210.79........................................  211.54                  
------------------------------------------------------------------------

List of Subjects

19 CFR Part 210

    Administrative practice and procedure, Advisory opinions, Business 
and industry, Customs duties and inspection, imports, and 
investigations, Enforcement, modification, or revocation of exclusion 
orders, cease and desist orders, or consent orders, Investigations of 
unfair acts and unfair methods of competition in U.S. import trade.

19 CFR Part 211

    Administrative practice and procedure, Enforcement.

    For the reasons set forth in the preamble, the U.S. International 
Trade Commission hereby removes Part 211 and revises Part 210 of Title 
19 of the Code of Federal Regulations to read as follows:
SUBCHAPTER C--INVESTIGATIONS OF UNFAIR PRACTICES IN IMPORT TRADE

PART 210--ADJUDICATION AND ENFORCEMENT

Subpart A--Rules of General Applicability

Sec.
210.1  Applicability of part.
210.2  General policy.
210.3  Definitions.
210.4  Written submissions; representations; sanctions.
210.5  Confidential business information.
210.6  Computation of time, additional hearings, postponements, 
continuances, and extensions of time.
210.7  Service of process and other documents.
Subpart B--Commencement of Preinstitution Proceedings and 
Investigations
210.8  Commencement of preinstitution proceedings.
210.9  Action of Commission upon receipt of complaint.
210.10  Institution of investigation.
210.11  Service of complaint and notice of investigation.

Subpart C--Pleadings

210.12  The complaint.
210.13  The response.
210.14  Amendments to pleadings and notice; supplemental 
submissions.

Subpart D--Motions

210.15  Motions.
210.16  Default.
210.17  Failures to act other than the statutory forms of default.
210.18  Summary determinations.
210.19  Intervention.
210.20  Declassification of confidential information.
210.21  Termination of investigations.
210.22  Designating an investigation ``more complicated.''
210.23  Suspension of investigation.
210.24  Interlocutory appeals.
210.25  Sanctions.
210.26  Other motions.

Subpart E--Discovery and Compulsory Process

210.27  General provisions governing discovery.
210.28  Depositions.
210.29  Interrogatories.
210.30  Requests for production of documents and things and entry 
upon land.
210.31  Requests for admission.
210.32  Subpoenas.
210.33  Failure to make or cooperate in discovery; sanctions.
210.34  Protective orders.

Subpart F--Prehearing Conferences and Hearings

210.35  Prehearing conferences.
210.36  General provisions for hearings.
210.37  Evidence.
210.38  Record.
210.39  In camera treatment of confidential information.
210.40  Proposed findings and conclusions and briefs.

Subpart G--Determinations and Actions Taken

210.41  Termination of investigation.
210.42  Initial determinations.
210.43  Petitions for review of initial determinations on matters 
other than temporary relief.
210.44  Commission review on its own motion of initial 
determinations on matters other than temporary relief.
210.45  Review of initial determinations on matters other than 
temporary relief.
210.46  Petitions for and sua sponte review of initial 
determinations on violation of section 337 or temporary relief.
210.47  Petitions for reconsideration.
210.48  Disposition of petitions for reconsideration.
210.49  Implementation of Commission action.
210.50  Commission action, the public interest, and bonding by 
respondents.
210.51  Period for concluding investigation.

Subpart H--Temporary Relief

210.52  Motions for temporary relief.
210.53  Motion filed after complaint.
210.54  Service of motion by the complainant.
210.55  Content of service copies.
210.56  Notice accompanying service copies.
210.57  Amendment of the motion.
210.58  Provisional acceptance of the motion.
210.59  Responses to the motion and the complaint.
210.60  Designating an investigation ``more complicated'' for the 
purpose of adjudicating a motion for temporary relief.
210.61  Discovery and compulsory process.
210.62  Evidentiary hearing.
210.63  Proposed findings and conclusions and briefs.
210.64  Interlocutory appeals.
210.65  Certification of the record.
210.66  Initial determination concerning temporary relief; 
Commission action thereon.
210.67  Remedy, the public interest, and bonding by respondents.
210.68  Complainant's temporary relief bond.
210.69  Approval of complainant's temporary relief bond.
210.70  Forfeiture of complainant's temporary relief bond.

Subpart I--Enforcement Procedures and Advisory Opinions

210.71  Information gathering.
210.72  Confidentiality of information.
210.73  Review of reports.
210.74  Modification of reporting requirements.
210.75  Proceedings to enforce exclusion orders, cease and desist 
orders, consent orders, and other Commission orders.
210.76  Modification or rescission of exclusion orders, cease and 
desist orders, and consent orders.
210.77  Temporary emergency action.
210.78  Notice of enforcement action to Government agencies.
210.79  Advisory opinions.

    Authority: 19 U.S.C. 1333, 1335, and 1337, and sections 2 and 
1342(d)(1)(B) of Pub. L. No. 100-418, 102 Stat. 1107.

Subpart A--Rules of General Applicability


Sec. 210.1  Applicability of part.

    The rules in this part apply to investigations under section 337 of 
the Tariff Act of 1930 and related proceedings. These rules are 
authorized by sections 333, 335, or 337 of the Tariff Act of 1930 (19 
U.S.C. Secs. 1333, 1335, and 1337) and sections 2 and 1342(d)(1)(B) of 
the Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100-418, 
102 Stat. 1107 (1988).


Sec. 210.2  General policy.

    It is the policy of the Commission that, to the extent practicable 
and consistent with requirements of law, all investigations and related 
proceedings under this part shall be conducted expeditiously. The 
parties, their attorneys or other representatives, and the presiding 
administrative law judge shall make every effort at each stage of the 
investigation or related proceeding to avoid delay.


Sec. 210.3  Definitions.

    As used in this part--
    Administrative law judge means the person appointed under section 
3105 of title 5 of the United States Code who presides over the taking 
of evidence in an investigation under this part. If the Commission so 
orders or a section of this part so provides, an administrative law 
judge also may preside over stages of a related proceeding under this 
part.
    Commission investigative attorney means a Commission attorney 
designated to engage in investigatory activities in an investigation or 
a related proceeding under this part.
    Complainant means a person who has filed a complaint with the 
Commission under this part, alleging a violation of section 337 of the 
Tariff Act of 1930.
    Intervenor means a person who has been granted leave by the 
Commission to intervene as a party to an investigation or a related 
proceeding under this part.
    Investigation means a formal Commission inquiry instituted to 
determine whether there is a violation of section 337 of the Tariff Act 
of 1930. An investigation is instituted upon publication of a notice in 
the Federal Register. The investigation entails postinstitution 
adjudication of the complaint. 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 or the permanent 
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. Final termination of an investigation occurs when the 
Commission issues a nonappealable determination, order, or notice that 
ends the investigation, when any administrative or judicial review 
relating to the final Commission action has ended, or when the time for 
seeking such review has expired.
    Party means each complainant, respondent, intervenor, or Commission 
investigative attorney.
    Proposed intervenor means any person who has filed a motion to 
intervene in an investigation or a related proceeding under this part.
    Proposed respondent means any person named in a complaint filed 
under this part as allegedly violating section 337 of the Tariff Act of 
1930.
    Related proceeding means preinstitution proceedings, sanction 
proceedings (for the possible issuance of sanctions that would not have 
a bearing on the adjudication of the merits of a complaint or a motion 
under this part), bond forfeiture proceedings, proceedings to enforce, 
modify, or revoke a remedial or consent order, or advisory opinion 
proceedings.
    Respondent means any person named in a notice of investigation 
issued under this part as allegedly violating section 337 of the Tariff 
Act of 1930.


Sec. 210.4  Written submissions; representations; sanctions.

    (a) Caption; names of parties. The front page of every written 
submission filed by a party or a proposed party to an investigation or 
a related proceeding under this part shall contain a caption setting 
forth the name of the Commission, the title of the investigation or 
related proceeding, the docket number or investigation number, if any, 
assigned to the investigation or related proceeding, and in the case of 
a complaint, the names of the complainant and all proposed respondents.
    (b) Signature. Every pleading, written motion, and other paper of a 
party or proposed party who is represented by an attorney in an 
investigation or a related proceeding under this part shall be signed 
by at least one attorney of record in the attorney's individual name. A 
party or proposed party who is not represented by an attorney shall 
sign, or his duly authorized officer or agent shall sign, the pleading, 
written motion, or other paper. Each paper shall state the signer's 
address and telephone number, if any. Pleadings, written motions, and 
other papers need not be under oath or accompanied by an affidavit, 
except as provided in Secs. 210.12(a)(1), 210.13(b), 210.18, 210.52(d), 
210.59(b), or another section of this part or by order of the 
administrative law judge or the Commission. If a pleading, motion, or 
other paper is not signed, it shall be stricken unless it is signed 
promptly after omission of the signature is called to the attention of 
the submitter.
    (c) Representations. By presenting to the presiding administrative 
law judge or the Commission (whether by signing, filing, submitting, or 
later advocating) a pleading, written motion, or other paper, an 
attorney or unrepresented party or proposed party is certifying that to 
the best of the person's knowledge, information, and belief, formed 
after an inquiry reasonable under the circumstances--
    (1) it is not being presented for any improper purpose, such as to 
harass or to cause unnecessary delay or needless increase in the cost 
of the investigation or related proceeding;
    (2) the claims, defenses, and other legal contentions therein are 
warranted by existing law or by a nonfrivolous argument for the 
extension, modification, or reversal of existing law or the 
establishment of new law;
    (3) the allegations and other factual contentions have evidentiary 
support or, if specifically so identified, are likely to have 
evidentiary support after a reasonable opportunity for further 
investigation or discovery; and
    (4) the denials of factual contentions are warranted on the 
evidence or, if specifically so identified, are reasonably based on a 
lack of information or belief.
    (d) Sanctions. If, after notice and a reasonable opportunity to 
respond (see paragraphs (d)(1) (i) and (ii) of this section and 
Sec. 210.25), the presiding administrative law judge or the Commission 
determines that paragraph (c) of this section has been violated, the 
administrative law judge or the Commission may, subject to the 
conditions stated below and in Sec. 210.25, impose an appropriate 
sanction upon the attorneys, law firms, or parties that have violated 
paragraph (c) or are responsible for the violation. A representation 
need not be frivolous in its entirety in order for the administrative 
law judge or the Commission to determine that paragraph (c) has been 
violated. If any portion of a representation is found to be false, 
frivolous, misleading, or otherwise in violation of paragraph (c), a 
sanction may be imposed. In determining whether paragraph (c) has been 
violated, the administrative law judge or the Commission will consider 
whether the representation or disputed portion thereof was objectively 
reasonable under the circumstances.
    (1) How initiated--(i) By motion. A motion for sanctions under this 
section shall be made separately from other motions or requests and 
shall describe the specific conduct alleged to violate paragraph (c). 
It shall be served as provided in paragraph (g) of this section, but 
shall not be filed with or presented to the presiding administrative 
law judge or the Commission unless, within seven days after service of 
the motion (or such other period as the administrative law judge or the 
Commission may prescribe), the challenged paper, claim, defense, 
contention, allegation, or denial is not withdrawn or appropriately 
corrected. See also Sec. 210.25 (a) through (c). If warranted, the 
administrative law judge or the Commission may award to the party or 
proposed party prevailing on the motion the reasonable expenses and 
attorney's fees incurred in presenting or opposing the motion. Absent 
exceptional circumstances, a law firm shall be held jointly responsible 
for violations committed by its partners, associates, and employees.
    (ii) On the administrative law judge's or the Commission's 
initiative. The administrative law judge or the Commission may enter an 
order sua sponte describing the specific conduct that appears to 
violate paragraph (c) of this section and directing an attorney, law 
firm, party, or proposed party to show cause why it has not violated 
paragraph (c) with respect thereto.
    (2) Nature of sanctions; limitations. A sanction imposed for 
violation of paragraph (c) of this section shall be limited to what is 
sufficient to deter repetition of such conduct or comparable conduct by 
others similarly situated. Subject to the limitations in paragraphs 
(d)(2) (i) through (iv) of this section, the sanction may consist of, 
or include, directives of a nonmonetary nature, an order to pay a 
penalty, or, if imposed on motion and warranted for effective 
deterrence, an order directing payment to the movant of some or all of 
the reasonable attorney's fees and other expenses incurred as a direct 
result of the violation.
    (i) Monetary sanctions shall not be imposed under this section 
against the United States, the Commission, or a Commission 
investigative attorney.
    (ii) Monetary sanctions may not be awarded against a represented 
party or proposed party for a violation of paragraph (c)(2) of this 
section.
    (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, or
    (3) A consent order agreement.
    (iv) Monetary sanctions imposed to compensate the Commission for 
expenses incurred by a Commission investigative attorney or the 
Commission's Office of Unfair Import Investigations will include 
reimbursement for some or all costs reasonably incurred as a direct 
result of the violation, but will not include attorney's fees.
    (3) Order. When imposing sanctions, the administrative law judge or 
the Commission shall describe the conduct determined to constitute a 
violation of this rule and explain the basis for the sanction imposed. 
See also Sec. 210.25 (d) and (f).
    (e) Inapplicability to discovery. Paragraphs (c) and (d) of this 
section do not apply to discovery requests, responses, objections, and 
motions that are subject to provisions of Secs. 210.27 through 210.34.
    (f) Specifications; filing of documents. (1) (i) Written 
submissions that are addressed to the Commission during an 
investigation or a related proceeding shall comply with Sec. 201.8 of 
this chapter, except for the provisions regarding the number of copies 
to be submitted. The required number of copies shall be governed by 
paragraph (f)(2) of this section. Written submissions may be produced 
by standard typographic printing or by a duplicating or copying process 
which produces a clear black image on white paper. If the submission is 
produced by other than the standard typographical process used by 
commercial printers, typed matter shall not exceed 6\1/2\ by 9\1/2\ 
inches using 10-pitch (pica) or larger pitch type or 5\1/2\ by 8\1/2\ 
inches using 11-point or larger proportional spacing type, and shall be 
double-spaced between each line of text using the standard of 6 lines 
of type per inch. Text and footnotes shall be in the same size type. 
Quotations more than two lines long in the text or footnotes may be 
indented and single-spaced. Headings and footnotes may be single-
spaced.
    (ii) The administrative law judge may impose any specifications he 
deems appropriate for submissions that are addressed to the 
administrative law judge.
    (2) Unless the Commission or another section of this part 
specifically states otherwise, the original and 6 true copies of each 
submission shall be filed if the investigation or related proceeding is 
before an administrative law judge, and the original and 14 true copies 
of each submission shall be filed if the investigation or related 
proceeding is before the Commission.
    (3) Persons who file the following submissions that contain 
confidential business information covered by an administrative 
protective order, or that are the subject of a request for confidential 
treatment, must file nonconfidential copies and serve them on the other 
parties to the investigation or related proceeding within 10 calendar 
days after filing the confidential version with the Commission:
    (i) A complaint and all supplements and exhibits thereto;
    (ii) A response to a complaint and all supplements and exhibits 
thereto;
    (iii) All submissions relating to a motion to amend the complaint 
or notice of investigation; and
    (iv) All submissions addressed to the Commission. Other sections of 
this part may require, or the Commission or the administrative law 
judge may order, the filing and service of nonconfidential copies of 
other kinds of confidential submissions. If the submitter's ability to 
prepare a nonconfidential copy is dependent upon receipt of the 
nonconfidential version of an initial determination, or a Commission 
order or opinion, or a ruling by the administrative law judge or the 
Commission as to whether some or all of the information at issue is 
entitled to confidential treatment, the nonconfidential copies of the 
submission must be filed within 10 calendar days after service of the 
Commission or administrative law judge document in question. The time 
periods for filing specified in this paragraph apply unless the 
Commission, the administrative law judge, or another section of this 
part specifically provides otherwise.
    (g) Service. Unless the Commission, the administrative law judge, 
or another section of this part specifically provides otherwise, every 
written submission filed by a party or proposed party shall be served 
on all other parties in the manner specified in Sec. 201.16(b) of this 
chapter.


Sec. 210.5  Confidential business information.

    (a) Definition and submission. Confidential business information 
shall be defined and identified in accordance with Sec. 201.6(a) and 
(c) of this chapter. Unless otherwise ordered by the Commission or the 
administrative law judge, confidential business information shall be 
submitted in accordance with Sec. 201.6(c).
    (b) Restrictions on disclosure. Information submitted to the 
Commission or exchanged among the parties in connection with an 
investigation or a related proceeding under this part, which is 
properly designated confidential under paragraph (a) of this section 
and Sec. 201.6(a) of this chapter, may not be disclosed to anyone other 
than the following persons without the consent of the submitter:
    (1) Persons who are granted access to confidential information 
under Sec. 210.39(a) or a protective order issued pursuant to 
Sec. 210.34(a);
    (2) An officer or employee of the Commission who is directly 
concerned with carrying out or maintaining the records of the 
investigation or related proceeding for which the information was 
submitted;
    (3) An officer or employee of the United States Government who is 
directly involved in a review conducted pursuant to section 337(j) of 
the Tariff Act of 1930; or
    (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) or (g) of the Tariff Act or an entry under bond under 
section 337(e) of the Tariff Act resulting from the investigation in 
connection with which the information was submitted.
    (c) Confidentiality determinations in preinstitution proceedings. 
After a complaint is filed under section 337 of the Tariff Act of 1930 
and before an investigation is instituted by the Commission, 
confidential business information designated confidential by the 
supplier shall be submitted in accordance with Sec. 201.6(b) of this 
chapter. The Secretary shall decide, in accordance with Sec. 201.6(d) 
of this chapter, whether the information is entitled to confidential 
treatment. Appeals from the ruling of the Secretary shall be made to 
the Commission as set forth in Sec. 201.6(e) and (f) of this chapter.
    (d) Confidentiality determinations in investigations and other 
related proceedings. (1) If an investigation is instituted or if a 
related proceeding is assigned to an administrative law judge, the 
administrative law judge shall set the ground rules for the 
designation, submission, and handling of information designated 
confidential by the submitter. When requested to do so, the 
administrative law judge shall decide whether information in a document 
addressed to the administrative law judge, or to be exchanged among the 
parties while the administrative law judge is presiding, is entitled to 
confidential treatment. The administrative law judge shall also decide, 
with respect to all orders, initial determinations, or other documents 
issued by the administrative law judge, whether information designated 
confidential by the supplier is entitled to confidential treatment. The 
supplier of the information or the person seeking the information may, 
with leave of the administrative law judge, request an appeal to the 
Commission of the administrative law judge's unfavorable ruling on this 
issue, under Sec. 210.24(b)(2).
    (2) The Commission may continue protective orders issued by the 
administrative law judge, amend or revoke those orders, or issue new 
ones. All submissions addressed to the Commission that contain 
information covered by an existing protective order will be given 
confidential treatment. (See also Sec. 210.72.) New information that is 
submitted to the Commission, designated confidential by the supplier, 
and not covered by an existing protective order must be submitted to 
the Secretary with a request for confidential treatment in accordance 
with Sec. 201.6(b) and (c) of this chapter. The Secretary shall decide, 
in accordance with Sec. 201.6(d) of this chapter, whether the 
information is entitled to confidential treatment. Appeals from the 
ruling of the Secretary shall be made to the Commission as provided in 
Sec. 201.6(e) and (f) of this chapter. The Commission shall decide, 
with respect to all orders, notices, opinions, and other documents 
issued by or on behalf of the Commission, whether information 
designated confidential by the supplier is entitled to confidential 
treatment.


Sec. 210.6  Computation of time, additional hearings, postponements, 
continuances, and extensions of time.

    Unless the Commission, the administrative law judge, or another 
section of this part specifically provides otherwise, the computation 
of time and the granting of additional hearings, postponements, 
continuances, and extensions of time shall be in accordance with 
Secs. 201.14 and 201.16(d) of this chapter. Whenever a party has the 
right or is required to perform some act or to take some action within 
a prescribed period after service of a document upon it, and the 
document was served by mail, the deadline shall be computed by adding 
to the end of the prescribed period the additional time allotted under 
Sec. 201.16(d), unless the Commission, the administrative law judge, or 
another section of this part specifically provides otherwise.


Sec. 210.7  Service of process and other documents.

    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.

Subpart B--Commencement of Preinstitution Proceedings and 
Investigations


Sec. 210.8  Commencement of preinstitution proceedings.

    (a) Upon receipt of complaint. A preinstitution proceeding is 
commenced by filing with the Secretary the original and 14 true copies 
of a complaint, plus one copy for each person named in the complaint as 
violating section 337 of the Tariff Act of 1930 and one copy for the 
government of each foreign country of any person or persons so named. 
If the complainant is seeking temporary relief, one additional copy of 
the motion for such relief also must be filed for each proposed 
respondent and for the government of the foreign country of the 
proposed respondent. The additional copies of the complaint and motion 
for temporary relief for each proposed respondent and the appropriate 
foreign government are to be provided notwithstanding the procedures 
applicable to a motion for temporary relief, which require service of 
the complaint and motion for temporary relief by the complainant.
    (b) Upon the initiative of the Commission. The Commission may upon 
its initiative commence a preinstitution proceeding based upon any 
alleged violation of section 337 of the Tariff Act of 1930.


Sec. 210.9  Action of Commission upon receipt of complaint.

    Upon receipt of a complaint alleging violation of section 337 of 
the Tariff Act of 1930, the Commission shall take the following 
actions:
    (a) Examination of complaint. The Commission shall examine the 
complaint for sufficiency and compliance with the applicable sections 
of this chapter.
    (b) Informal investigatory activity. The Commission shall identify 
sources of relevant information, assure itself of the availability 
thereof, and, if deemed necessary, prepare subpoenas therefore, and 
give attention to other preliminary matters.


Sec. 210.10  Institution of investigation.

    (a)(1) The Commission shall determine whether the complaint is 
properly filed and whether an investigation should be instituted on the 
basis of the complaint. That determination shall be made within 30 days 
after the complaint is filed, unless--
    (i) Exceptional circumstances preclude adherence to a 30-day 
deadline;
    (ii) Additional time is allotted under other sections of this part 
in connection with the preinstitution processing of a motion by the 
complainant for temporary relief;
    (iii) The complainant requests that the Commission postpone the 
determination on whether to institute an investigation; or
    (iv) The complainant withdraws the complaint.
    (2) If exceptional circumstances preclude Commission adherence to 
the 30-day deadline for determining whether to institute an 
investigation on the basis of the complaint, the determination will be 
made as soon after that deadline as possible.
    (3) If additional time is allotted in connection with the 
preinstitution processing of a motion by the complainant for temporary 
relief, the Commission will determine whether to institute an 
investigation and provisionally accept the motion within 35 days after 
the filing of the complaint or by a subsequent deadline computed in 
accordance with Sec. 210.53(a), Sec. 210.54, Sec. 210.55(b), 
Sec. 210.57, or Sec. 210.58 as applicable.
    (4) If the complainant desires to have the Commission postpone 
making a determination on whether to institute an investigation in 
response to the complaint, the complainant must file a written request 
with the Secretary. If the request is granted, the determination will 
be rescheduled for whatever date is appropriate in light of the facts.
    (5)(i) The complainant may withdraw the complaint as a matter of 
right at any time before the Commission votes on whether to institute 
an investigation. To effect such withdrawal, the complainant must file 
a written notice with the Commission. If the complaint is being 
withdrawn pursuant to a settlement agreement, a copy of the agreement 
must be filed with the Commission along with the notice of withdrawal. 
If the agreement contains confidential business information within the 
meaning of Sec. 201.6(a) of this chapter, at least one copy of the 
agreement with such information deleted shall accompany the motion, in 
addition to a copy of the confidential version.
    (ii) If a motion for temporary relief was filed in addition to the 
complaint, the motion must be withdrawn along with the complaint, and 
the complainant must serve copies of the notice of withdrawal on all 
proposed respondents and on the embassies that were served with copies 
of the complaint and motion pursuant to Sec. 210.54.
    (b) An investigation shall be instituted by the publication of a 
notice in the Federal Register. The notice will define the scope of the 
investigation and may be amended as provided in Sec. 210.14 (b) and 
(c).
    (c) If the Commission determines not to institute an investigation 
on the basis of the complaint, the complaint shall be dismissed, and 
the complainant and all proposed respondents will receive written 
notice of the Commission's action and the reason(s) therefor.


Sec. 210.11  Service of complaint and notice of investigation.

    (a) 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 the following:
    (1) Each respondent;
    (2) 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; and
    (3) 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.
    (b) With leave from the presiding administrative law judge, a party 
may attempt to effect personal service of the complaint and notice of 
investigation upon a respondent, if the Secretary's efforts to serve 
the respondent by certified mail have been unsuccessful. If the party 
succeeds in serving the respondent by personal service, the party must 
notify the administrative law judge and file proof of such service with 
the Secretary.

Subpart C--Pleadings


Sec. 210.12  The complaint.

    (a) Contents of the complaint. In addition to conforming with the 
requirements of Sec. 201.8 of this chapter and Secs. 210.4 and 210.5 of 
this part, the complaint shall--
    (1) Be under oath and signed by the complainant or his duly 
authorized officer, attorney, or agent, with the name, address, and 
telephone number of the complainant and any such officer, attorney, or 
agent given on the first page of the complaint;
    (2) Include a statement of the facts constituting the alleged 
unfair methods of competition and unfair acts;
    (3) Describe specific instances of alleged unlawful importations or 
sales, and shall provide the Tariff Schedules of the United States item 
number(s) for importations occurring prior to January 1, 1989, and the 
Harmonized Tariff Schedule of the United States item number(s) for 
importations occurring on or after January 1, 1989;
    (4) State the name, address, and nature of the business (when such 
nature is known) of each person alleged to be violating section 337 of 
the Tariff Act of 1930;
    (5) Include a statement as to whether the alleged unfair methods of 
competition and unfair acts, or the subject matter thereof, are or have 
been the subject of any court or agency litigation, and, if so, include 
a brief summary of such litigation;
    (6)(i) If the complaint alleges a violation of section 337 based on 
infringement of a U.S. patent, or a federally registered copyright, 
trademark, or mask work, under section 337(a)(1) (B), (C), or (D) of 
the Tariff Act of 1930, include a description of the relevant domestic 
industry as defined in section 337(a)(3) that allegedly exists or is in 
the process of being established, including the relevant operations of 
any licensees. Relevant information includes but is not limited to:
    (A) Significant investment in plant and equipment;
    (B) Significant employment of labor or capital; or
    (C) Substantial investment in the exploitation of the subject 
patent, copyright, trademark, or mask work, including engineering, 
research and development, or licensing; or
    (ii) If the complaint alleges a violation of section 337 of the 
Tariff Act of 1930 based on unfair methods of competition and unfair 
acts that have the threat or effect of destroying or substantially 
injuring an industry in the United States or preventing the 
establishment of such an industry under section 337(a)(1)(A) (i) or 
(ii), include a description of the domestic industry affected, 
including the relevant operations of any licensees; or
    (iii) If the complaint alleges a violation of section 337 of the 
Tariff Act of 1930 based on unfair methods of competition or unfair 
acts that have the threat or effect of restraining or monopolizing 
trade and commerce in the United States under section 
337(a)(1)(A)(iii), include a description of the trade and commerce 
affected.
    (7) Include a description of the complainant's business and its 
interests in the relevant domestic industry or the relevant trade and 
commerce. For every intellectual property based complaint (regardless 
of the type of intellectual property right involved), include a showing 
that at least one complainant is the owner or exclusive licensee of the 
subject intellectual property; and
    (8) If the alleged violation involves an unfair method of 
competition or an unfair act other than those listed in paragraph 
(a)(6)(i) of this section, state a specific theory and provide 
corroborating data to support the allegation(s) in the complaint 
concerning the existence of a threat or effect to destroy or 
substantially injure a domestic industry, to prevent the establishment 
of a domestic industry, or to restrain or monopolize trade and commerce 
in the United States. The information that should ordinarily be 
provided includes the volume and trend of production, sales, and 
inventories of the involved domestic article; a description of the 
facilities and number and type of workers employed in the production of 
the involved domestic article; profit-and-loss information covering 
overall operations and operations concerning the involved domestic 
article; pricing information with respect to the involved domestic 
article; when available, volume and sales of imports; and other 
pertinent data.
    (9) Include, when a complaint is based upon the infringement of a 
valid and enforceable U.S. patent--
    (i) The identification of each U.S. letters patent and a certified 
copy thereof (a legible copy of each such patent will suffice for each 
required copy of the complainant);
    (ii) The identification of the ownership of each involved U.S. 
letters patent and a certified copy of each assignment of each such 
patent (a legible copy thereof will suffice for each required copy of 
the complaint);
    (iii) The identification of each licensee under each involved U.S. 
letters patent;
    (iv) When known, a list of each foreign patent, each foreign patent 
application (not already issued as a patent), and each foreign patent 
application that has been denied corresponding to each involved U.S. 
letters patent, with an indication of the prosecution status of each 
such foreign patent application;
    (v) A nontechnical description of the invention of each involved 
U.S. letters patent;
    (vi) A reference to the specific claims in each involved U.S. 
letters patent that allegedly cover the article imported or sold by 
each person named as violating section 337 of the Tariff Act of 1930, 
or the process under which such article was produced;
    (vii) A showing that each person named as violating section 337 of 
the Tariff Act of 1930 is importing or selling the article covered by, 
or produced under the involved process covered by, the above specific 
claims of each involved U.S. letters patent. The complainant shall make 
such showing by appropriate allegations, and when practicable, by a 
chart that applies an exemplary claim of each involved U.S. letters 
patent to a representative involved domestic article or process and to 
a representative involved article of each person named as violating 
section 337 of the Tariff Act or to the process under which such 
article was produced; and
    (viii) Drawings, photographs, or other visual representations of 
both the involved domestic article or process and the involved article 
of each person named as violating section 337 of the Tariff Act of 
1930, or of the process utilized in producing the imported article, 
and, when a chart is furnished under paragraph (a)(9)(vii) of this 
section, the parts of such drawings, photographs, or other visual 
representations should be labeled so that they can be read in 
conjunction with such chart; and
    (10) Contain a request for relief, and if temporary relief is 
requested under section 337 (e) and/or (f) of the Tariff Act of 1930, a 
motion for such relief shall accompany the complaint as provided in 
Sec. 210.52(a) or may follow the complaint as provided in 
Sec. 210.53(a).
    (b) Submissions of articles as exhibits. At the time the complaint 
is filed, if practicable, the complainant shall submit both the 
domestic article and all imported articles that are the subject of the 
complaint.
    (c) Additional material to accompany each patent-based complaint. 
There shall accompany the submission of the original of each complaint 
based upon the alleged unauthorized importation or sale of an article 
covered by, or produced under a process covered by, the claims of a 
valid U.S. letters patent the following:
    (1) Three copies of each license agreement arising out of each 
involved U.S. letters patent, except that, to the extent that a 
standard license agreement is used, three copies of the standard 
license agreement and a list of the licensees operating under such 
agreement will suffice;
    (2) One certified copy of the U.S. Patent and Trademark Office 
prosecution history for each involved U.S. letters patent, plus three 
additional copies thereof; and
    (3) Four copies of each patent and applicable pages of each 
technical reference mentioned in the prosecution history of each 
involved U.S. letters patent.
    (d) Additional material to accompany each registered trademark-
based complaint. There shall accompany the submission of the original 
of each complaint based upon the alleged unauthorized importation or 
sale of an article covered by a Federally registered trademark, one 
certified copy of the Federal registration and three additional copies, 
three copies of each license agreement (if any) concerning use of the 
trademark, except that if a standard license agreement is used, three 
copies of that agreement and a list of the licensees operating under it 
will suffice;
    (e) Additional material to accompany each complaint based on a non-
Federally registered trademark. There shall accompany the submission of 
the original of each complaint based upon the alleged unauthorized 
importation or sale of an article covered by a non-Federally registered 
trademark the following:
    (1) A detailed and specific description of the alleged trademark;
    (2) Information concerning prior attempts to register the alleged 
trademark; and
    (3) Information on the status of current attempts to register the 
alleged trademark.
    (f) Additional material to accompany each copyright-based 
complaint. There shall accompany the submission of the original of each 
complaint based upon the alleged unauthorized importation or sale of an 
article covered by a copyright one certified copy of the Federal 
registration and three additional copies, three copies of each license 
agreement (if any) concerning use of the copyright, except that if a 
standard license agreement is used, three copies of that agreement and 
a list of the licensees operating under it will suffice;
    (g) Additional material to accompany each registered mask work-
based complaint. There shall accompany the submission of the original 
of each complaint based upon the alleged unauthorized importation or 
sale of a semiconductor chip in a manner that constitutes infringement 
of a Federally registered mask work, one certified copy of the Federal 
registration and three additional copies, three copies of each license 
agreement (if any) concerning use of the mask work, except that if a 
standard license agreement is used, three copies of that agreement and 
a list of the licensees operating under it will suffice;
    (h) Duty to supplement complaint. Complainant shall supplement the 
complaint prior to institution of an investigation if complainant 
obtains information upon the basis of which he knows or reasonably 
should know that a material legal or factual assertion in the complaint 
is false or misleading.


Sec. 210.13  The response.

    (a) Time for response. Except as provided in Sec. 210.59(a) and 
unless otherwise ordered in the notice of investigation or by the 
administrative law judge, respondents shall have 20 days from the date 
of service of the complaint and notice of investigation, by the 
Commission under Sec. 210.11(a) or by a party under Sec. 210.11(b), 
within which to file a written response to the complaint and the notice 
of investigation. When the investigation involves a motion for 
temporary relief and has not been declared ``more complicated,'' the 
response to the complaint and notice of investigation must be filed 
along with the response to the motion for temporary relief--i.e., 
within 10 days after service of the complaint, notice of investigation, 
and the motion for temporary relief by the Commission under 
Sec. 210.11(a) or by a party under Sec. 210.11(b). (See Sec. 210.59.)
    (b) Content of the response. In addition to conforming to the 
requirements of Sec. 201.8 of this chapter and Secs. 210.4 and 210.5 of 
this part, each response shall be under oath and signed by respondent 
or his duly authorized officer, attorney, or agent with the name, 
address, and telephone number of the respondent and any such officer, 
attorney, or agent given on the first page of the response. Each 
respondent shall respond to each allegation in the complaint and in the 
notice of investigation, and shall set forth a concise statement of the 
facts constituting each ground of defense. There shall be a specific 
admission, denial, or explanation of each fact alleged in the complaint 
and notice, or if the respondent is without knowledge of any such fact, 
a statement to that effect. Allegations of a complaint and notice not 
thus answered may be deemed to have been admitted. Each response shall 
include, when available, statistical data on the quantity and value of 
imports of the involved article. Respondents who are importers must 
also provide the Harmonized Tariff Schedule item number(s) for 
importations of the accused imports occurring on or after January 1, 
1989, and the Tariff Schedules of the United States item number(s) for 
importations occurring before January 1, 1989. Each response shall also 
include a statement concerning the respondent's capacity to produce the 
subject article and the relative significance of the United States 
market to its operations. Respondents who are not manufacturing their 
accused imports shall state the name and address of the supplier(s) of 
those imports. Affirmative defenses shall be pleaded with as much 
specificity as possible in the response. When the alleged unfair 
methods of competition and unfair acts are based upon the claims of a 
valid U.S. letters patent, the respondent is encouraged to make the 
following showing when appropriate:
    (1) If it is asserted in defense that the article imported or sold 
by respondents is not covered by, or produced under a process covered 
by, the claims of each involved U.S. letters patent, a showing of such 
noncoverage for each involved claim in each U.S. letters patent in 
question shall be made, which showing may be made by appropriate 
allegations and, when practicable, by a chart that applies the involved 
claims of each U.S. letters patent in question to a representative 
involved imported article of the respondent or to the process under 
which such article was produced;
    (2) Drawings, photographs, or other visual representations of the 
involved imported article of respondent or the process utilized in 
producing such article, and, when a chart is furnished under paragraph 
(b)(1) of this section, the parts of such drawings, photographs, or 
other visual representations, should be labeled so that they can be 
read in conjunction with such chart; and
    (3) If the claims of any involved U.S. letters patent are asserted 
to be invalid or unenforceable, the basis for such assertion, 
including, when prior art is relied on, a showing of how the prior art 
renders each claim invalid or unenforceable and a copy of such prior 
art. For good cause, the presiding administrative law judge may waive 
any of the substantive requirements imposed under this paragraph or may 
impose additional requirements.
    (c) Submission of article as exhibit. At the time the response is 
filed, if practicable, the respondent shall submit the accused article 
imported or sold by that respondent, unless the article has already 
been submitted by the complainant.


Sec. 210.14  Amendments to pleadings and notice; supplemental 
submissions.

    (a) Preinstitution amendments. The complaint may be amended at any 
time prior to the institution of the investigation.
    (b) Postinstitution amendments generally. (1) After an 
investigation has been instituted, the complaint or notice of 
investigation may be amended only by leave of the Commission for good 
cause shown and upon such conditions as are necessary to avoid 
prejudicing the public interest and the rights of the parties to the 
investigation. A motion for amendment must be made to the presiding 
administrative law judge. If the proposed amendment of the complaint 
would require amending the notice of investigation, the presiding 
administrative law judge may grant the motion only by filing with the 
Commission an initial determination. All other dispositions of such 
motions shall be by order.
    (2) If disposition of the issues in an investigation on the merits 
will be facilitated, or for other good cause shown, the presiding 
administrative law judge may allow appropriate amendments to pleadings 
other than complaints upon such conditions as are necessary to avoid 
prejudicing the public interest and the rights of the parties to the 
investigation.
    (c) Postinstitution amendments to conform to evidence. When issues 
not raised by the pleadings or notice of investigation, but reasonably 
within the scope of the pleadings and notice, are considered during the 
taking of evidence by express or implied consent of the parties, they 
shall be treated in all respects as if they had been raised in the 
pleadings and notice. Such amendments of the pleadings and notice as 
may be necessary to make them conform to the evidence and to raise such 
issues shall be allowed at any time, and shall be effective with 
respect to all parties who have expressly or impliedly consented.
    (d) Supplemental submissions. The administrative law judge may, 
upon reasonable notice and on such terms as are just, permit service of 
a supplemental submission setting forth transactions, occurrences, or 
events that have taken place since the date of the submission sought to 
be supplemented and that are relevant to any of the issues involved.

Subpart D--Motions


Sec. 210.15  Motions.

    (a) Presentation and disposition. (1) During the period between the 
institution of an investigation and the assignment of the investigation 
to a presiding administrative law judge, all motions shall be addressed 
to the chief administrative law judge. During the time that an 
investigation or related proceeding is before an administrative law 
judge, all motions therein shall be addressed to the administrative law 
judge.
    (2) When an investigation or related proceeding is before the 
Commission, all motions shall be addressed to the Chairman of the 
Commission. A motion to amend the complaint and notice of investigation 
to name an additional respondent after institution shall be served on 
the proposed respondent. All motions shall be filed with the Secretary 
and shall be served upon each party.
    (b) Content. All written motions shall state the particular order, 
ruling, or action desired and the grounds therefor.
    (c) Responses to motions. Within 10 days after service of any 
written motions, or within such longer or shorter time as may be 
designated by the administrative law judge or the Commission, a 
nonmoving party, or in the instance of a motion to amend the complaint 
or notice of investigation to name an additional respondent after 
institution, the proposed respondent, shall respond or he may be deemed 
to have consented to the granting of the relief asked for in the 
motion. The moving party shall have no right to reply, except as 
permitted by the administrative law judge or the Commission.
    (d) Motions for extensions. As a matter of discretion, the 
administrative law judge or the Commission may waive the requirements 
of this section as to motions for extension of time, and may rule upon 
such motions ex parte.


Sec. 210.16  Default.

    (a) Definition of default. (1) A party shall be found in default if 
it fails to respond to the complaint and notice of investigation in the 
manner prescribed in Sec. 210.13 or Sec. 210.59(c), or otherwise fails 
to answer the complaint and notice, and fails to show cause why it 
should not be found in default.
    (2) A party may be found in default as a sanction for abuse of 
process, under Sec. 210.4(c), or failure to make or cooperate in 
discovery, under Sec. 210.33(b).
    (b) Procedure for determining default. (1) If a respondent has 
failed to respond or appear in the manner described in paragraph (a)(1) 
of this section, a party may file a motion for, or the administrative 
law judge may issue upon his own initiative, an order directing that 
respondent to show cause why it should not be found in default. If the 
respondent fails to make the necessary showing, the administrative law 
judge shall issue an initial determination finding the respondent in 
default. An administrative law judge's decision denying a motion for a 
finding of default under paragraph (a)(1) of this section shall be in 
the form of an order.
    (2) Any party may file a motion for issuance of, or the 
administrative law judge may issue on his own initiative, an initial 
determination finding a party in default for abuse of process under 
Sec. 210.4(c) or failure to make or cooperate in discovery. A motion 
for a finding of default as a sanction for abuse of process or failure 
to make or cooperate in discovery shall be granted by initial 
determination or denied by order.
    (3) A party found in default shall be deemed to have waived its 
right to appear, to be served with documents, and to contest the 
allegations at issue in the investigation.
    (c) Relief against a respondent in default. (1) After a respondent 
has been found in default by the Commission, the complainant may file 
with the Commission a declaration that it is seeking immediate entry of 
relief against the respondent in default. The facts alleged in the 
complaint will be presumed to be true with respect to the defaulting 
respondent. The Commission may issue an exclusion order, a cease and 
desist order, or both, affecting the defaulting respondent only after 
considering the effect of such order(s) 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, and concluding that the order(s) should still be issued in 
light of the aforementioned public interest factors.
    (2) In any motion requesting the entry of default or the 
termination of the investigation with respect to the last remaining 
respondent in the investigation, the complainant shall declare whether 
it is seeking a general exclusion order. 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 
is established by substantial, reliable, and probative evidence, and 
only after considering the aforementioned public interest factors.


Sec. 210.17  Failures to act other than the statutory forms of default.

    Failures to act other than the defaults listed in Sec. 210.16 may 
provide a basis for the presiding administrative law judge or the 
Commission to draw adverse inferences and to issue findings of fact, 
conclusions of law, determinations (including a determination on 
violation of section 337 of the Tariff Act of 1930), and orders that 
are adverse to the party who fails to act. Such failures include, but 
are not limited to:
    (a) Failure to respond to a motion that materially alters the scope 
of the investigation or a related proceeding;
    (b) Failure to respond to a motion for temporary relief pursuant to 
Sec. 210.59;
    (c) Failure to respond to a motion for summary determination under 
Sec. 210.18;
    (d) Failure to appear at a hearing before the administrative law 
judge after filing a written response to the complaint or motion for 
temporary relief, or failure to appear at a hearing before the 
Commission;
    (e) Failure to file a brief or other written submission requested 
by the administrative law judge or the Commission during an 
investigation or a related proceeding;
    (f) Failure to respond to a petition for review of an initial 
determination, a petition for reconsideration of an initial 
determination, or an application for interlocutory review of an 
administrative law judge's order;
    (g) Failure to file a brief or other written submission requested 
by the administrative law judge or the Commission; and
    (h) Failure to participate in temporary relief bond forfeiture 
proceedings under Sec. 210.70.

The presiding administrative law judge or the Commission may take 
action under this rule sua sponte or in response to the motion of a 
party.


Sec. 210.18  Summary determinations.

    (a) Motions for summary determinations. Any party may move with any 
necessary supporting affidavits for a summary determination in his 
favor upon all or any part of the issues to be determined in the 
investigation. Counsel or other representatives in support of the 
complaint may so move at any time after 20 days following the date of 
service of the complaint and notice instituting the investigation. Any 
other party or a respondent may so move at any time after the date of 
publication of the notice of investigation in the Federal Register. Any 
such motion by any party in connection with the issue of permanent 
relief, however, must be filed at least 30 days before the date fixed 
for any hearing provided for in Sec. 210.36(a)(1). Any motion for 
summary determination filed in connection with the temporary relief 
phase of an investigation must be filed on or before the deadline set 
by the presiding administrative law judge.
    (b) Opposing affidavits; oral argument; time and basis for 
determination. Any nonmoving party may file opposing affidavits within 
10 days after service of the motion for summary determination. The 
administrative law judge may, in his discretion or at the request of 
any party, set the matter for oral argument and call for the submission 
of briefs or memoranda. The determination sought by the moving party 
shall be rendered if pleadings and any depositions, answers to 
interrogatories, and admissions on file, together with the affidavits, 
if any, show that there is no genuine issue as to any material fact and 
that the moving party is entitled to a summary determination as a 
matter of law.
    (c) Affidavits. Supporting and opposing affidavits shall be made on 
personal knowledge, shall set forth such facts as would be admissible 
in evidence, and shall show affirmatively that the affiant is competent 
to testify to the matters stated therein. Sworn or certified copies of 
all papers or parts thereof referred to in an affidavit shall be 
attached thereto or served therewith. The administrative law judge may 
permit affidavits to be supplemented or opposed by depositions, answers 
to interrogatories, or further affidavits. When a motion for summary 
determination is made and supported as provided in this section, a 
party opposing the motion may not rest upon the mere allegations or 
denials of the opposing party's pleading, but the opposing party's 
response, by affidavits, answers to interrogatories, or as otherwise 
provided in this section, must set forth specific facts showing that 
there is a genuine issue of fact for the evidentiary hearing under 
Sec. 210.36(a)(1) or (2). If the opposing party does not so respond, a 
summary determination, if appropriate, shall be rendered against the 
opposing party.
    (d) Refusal of application for summary determination; continuances 
and other orders. Should it appear from the affidavits of a party 
opposing the motion that the party cannot, for reasons stated, present 
by affidavit facts essential to justify the party's opposition, the 
administrative law judge may refuse the application for summary 
determination, or may order a continuance to permit affidavits to be 
obtained or depositions to be taken or discovery to be had or may make 
such other order as is appropriate, and a ruling to that effect shall 
be made a matter of record.
    (e) Order establishing facts. If on motion under this section a 
summary determination is not rendered upon the whole case or for all 
the relief asked and a hearing is necessary, the administrative law 
judge, by examining the pleadings and the evidence and by interrogating 
counsel if necessary, shall if practicable ascertain what material 
facts exist without substantial controversy and what material facts are 
actually and in good faith controverted. The administrative law judge 
shall thereupon make an order specifying the facts that appear without 
substantial controversy and directing such further proceedings in the 
investigation as are warranted. The facts so specified shall be deemed 
established.
    (f) Order of summary determination. An order of summary 
determination shall constitute an initial determination of the 
administrative law judge.


Sec. 210.19  Intervention.

    Any person desiring to intervene in an investigation or a related 
proceeding under this part shall make a written motion. The motion 
shall have attached to it a certificate showing that the motion has 
been served upon each party to the investigation or related proceeding 
in the manner described in Sec. 201.16(b) of this chapter. Any party 
may file a response to the motion in accordance with Sec. 210.15(c) of 
this part, provided that the response is accompanied by a certificate 
confirming that the response was served on the proposed intervenor and 
all other parties. The Commission, or the administrative law judge by 
initial determination, may grant the motion to the extent and upon such 
terms as may be proper under the circumstances.


Sec. 210.20  Declassification of confidential information.

    (a) Any party may move to declassify documents (or portions 
thereof) that have been designated confidential by the submitter but 
that do not satisfy the confidentiality criteria set forth in 
Sec. 201.6(a) of this chapter. All such motions, whether brought at any 
time during the investigation or after conclusion of the investigation 
shall be addressed to and ruled upon by the presiding administrative 
law judge, or if the investigation is not before a presiding 
administrative law judge, by the chief administrative law judge or such 
administrative law judge as he may designate.
    (b) Following issuance of a public version of the initial 
determination on whether there is a violation of section 337 of the 
Tariff Act of 1930 or an initial determination that would otherwise 
terminate the investigation (if adopted by the Commission), the 
granting of a motion, in whole or part, to declassify information 
designated confidential shall constitute an initial determination, 
except as to that information for which no submissions in opposition to 
declassification have been filed.


Sec. 210.21  Termination of investigations.

    (a) Motions for termination. (1) Any party may move at any time 
prior to the issuance of an initial determination on violation of 
section 337 of the Tariff Act of 1930 for an order to terminate an 
investigation in whole or in part as to any or all respondents, on the 
basis of withdrawal of the complaint or certain allegations contained 
therein, or for good cause other than the grounds listed in paragraph 
(a)(2) of this section. The presiding administrative law judge may 
grant the motion in an initial determination upon such terms and 
conditions as he deems proper.
    (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, or a consent 
order, as provided in paragraphs (b) and (c) of this section.
    (b) Termination by Settlement. (1) An investigation before the 
Commission may be terminated as to one or more respondents pursuant to 
section 337(c) of the Tariff Act of 1930 on the basis of a licensing or 
other settlement agreement. A motion for termination by settlement 
shall contain copies of the licensing or other settlement agreement, 
any supplemental agreements, and a statement that there are no other 
agreements, written or oral, express or implied between the parties 
concerning the subject matter of the investigation. If the licensing or 
other settlement agreement contains confidential business information 
within the meaning of Sec. 201.6(a) of this chapter, a copy of the 
agreement with such information deleted shall accompany the motion.
    (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. The Commission shall promptly 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 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. An investigation before 
the Commission may be terminated pursuant to section 337(c) of the 
Tariff Act of 1930 on the basis of a consent order. An order of 
termination by consent order need not constitute a determination as to 
violation of section 337.
    (1) Opportunity to submit proposed consent order. (i) Prior to 
institution of an investigation. Where time, the nature of the 
proceeding, and the public interest permit, any person being 
investigated pursuant to section 603 of the Trade Act of 1974 (19 
U.S.C. Sec. 2482) shall be afforded the opportunity to submit to the 
Commission a proposal for disposition of the matter under investigation 
in the form of a consent order stipulation that incorporates a proposed 
consent order executed by or on behalf of such person and that complies 
with the requirements of paragraph (c)(3) of this section.
    (ii) Subsequent to institution of an investigation. In 
investigations under section 337 of the Tariff Act of 1930, a proposal 
to terminate by consent order shall be submitted as a motion to the 
administrative law judge with a stipulation that incorporates a 
proposed consent order. If the stipulation contains confidential 
business information within the meaning of Sec. 201.6(a) of this 
chapter, a copy of the stipulation with such information deleted shall 
accompany the motion. The stipulation shall comply with the 
requirements of paragraph (c)(3)(i) of this section. At any time prior 
to commencement of the hearing, the motion may be filed by one or more 
respondents, and may be filed jointly with other parties to the 
investigation. Upon request and for good cause shown, the 
administrative law judge may consider such a motion during or after a 
hearing. The filing of the motion shall not stay proceedings before the 
administrative law judge unless the administrative law judge so orders. 
The administrative law judge shall promptly file with the Commission an 
initial determination regarding the motion for termination if the 
motion is granted. If the initial determination contains confidential 
business information, a copy of the initial determination with such 
information deleted shall be filed with the Commission simultaneously 
with the filing of the confidential version of the initial 
determination. Pending disposition by the Commission of a consent order 
stipulation, a party may not, absent good cause shown, withdraw from 
the stipulation once it has been submitted pursuant to this section.
    (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, the Commission shall 
promptly serve copies of the nonconfidential version of the initial 
determination and the consent order stipulation on 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. An order of termination by consent order 
need not constitute a determination as to violation of section 337. The 
Commission shall publish in the Federal Register and serve on all 
parties notice of its action. Should the Commission reverse the initial 
determination, the parties are in no way bound by their proposal in 
later actions before the Commission.
    (3) Contents of consent order stipulation. (i) Contents.
    (A) Every consent order stipulation shall contain, in addition to 
the proposed consent order, the following:
    (1) An admission of all jurisdictional facts;
    (2) An express waiver of all rights to seek judicial review or 
otherwise challenge or contest the validity of the consent order;
    (3) A statement that the signatories to the consent order 
stipulation will cooperate with and will not seek to impede by 
litigation or other means the Commission's efforts to gather 
information under subpart I of this part; and
    (4) A statement that the enforcement, modification, and revocation 
of the consent order will be carried out pursuant to subpart I of this 
part, incorporating by reference the Commission's Rules of Practice and 
Procedure.
    (B) In the case of an intellectual property-based investigation, 
the consent order stipulation shall also contain--
    (1) a statement that the consent order shall not apply with respect 
to any claim of any intellectual property right that has expired or 
been found or adjudicated invalid or unenforceable by the Commission or 
a court or agency of competent jurisdiction, provided that such finding 
or judgment has become final and nonreviewable; and
    (2) a statement that each signatory to the stipulation who was a 
respondent in the investigation will not seek to challenge the validity 
of the intellectual property right(s), in any administrative or 
judicial proceeding to enforce the consent order.
    (C) The consent order stipulation may contain a statement that the 
signing thereof is for settlement purposes only and does not constitute 
admission by any respondent that an unfair act has been committed.
    (ii) Effect, interpretation, and reporting. The consent order shall 
have the same force and effect and may be enforced, modified, or 
revoked in the same manner as is provided in section 337 of the Tariff 
Act of 1930 and this part for other Commission actions. The Commission 
may require periodic compliance reports pursuant to subpart I of this 
part to be submitted by the person entering into the consent order 
stipulation.
    (d) Effect of termination. An order of termination issued by the 
administrative law judge shall constitute an initial determination.


Sec. 210.22  Designating an investigation ``more complicated''.

    (a) Definition. A ``more complicated'' investigation is an 
investigation that is of an involved nature owing to the subject 
matter, difficulty in obtaining information, the large number of 
parties involved, or other significant factors.
    (b) Permanent relief. Upon motion or sua sponte, the administrative 
law judge or the Commission may issue an order designating an 
investigation ``more complicated'' in order to have up to six months of 
additional time to adjudicate a complainant's request for permanent 
relief under section 337 of the Tariff Act of 1930. See Sec. 210.51(a) 
of this part. The administrative law judge or the Commission shall 
publish a notice in the Federal Register announcing the designation and 
the reasons for it. If the designation is imposed by the administrative 
law judge prior to issuance of an initial determination on violation of 
section 337 of the Tariff Act, any party aggrieved by the designation 
may file an application for interlocutory review under 
Sec. 210.24(a)(2). If the designation is imposed by the administrative 
law judge in an order issued concurrently with the initial 
determination on violation of section 337, any party may contest the 
designation in a petition for review, as if the order were an initial 
determination issued under Sec. 210.42(c). The extended deadline for 
concluding the permanent relief phase of an investigation that has been 
designated ``more complicated'' under this paragraph shall be computed 
in the manner specified in Sec. 210.51(c).
    (c) Temporary relief. The Commission or the presiding 
administrative law judge, pursuant to Sec. 210.60, may declare an 
investigation ``more complicated'' in order to have up to 60 days of 
additional time to adjudicate a motion for temporary relief. See also 
Sec. 210.51(b). The Commission's or the administrative law judge's 
reasons for designating the investigation ``more complicated'' for that 
purpose shall be published in the Federal Register. The extended 
deadline for concluding an investigation that has been designated 
``more complicated'' under this paragraph shall be computed in the 
manner specified in Sec. 210.51(c).


Sec. 210.23  Suspension of investigation.

    Any party may move to suspend an investigation under this part, 
because of the pendency of proceedings in a court or agency of the 
United States involving questions concerning the subject matter of the 
investigation that are similar to the questions being adjudicated by 
the Commission. The administrative law judge or the Commission also may 
raise the issue sua sponte. An administrative law judge's decision 
granting a motion for suspension shall be in the form of an initial 
determination.


Sec. 210.24  Interlocutory appeals.

    Rulings by the administrative law judge on motions may not be 
appealed to the Commission prior to the administrative law judge's 
issuance of an initial determination, except in the following 
circumstances:
    (a) Appeals without leave of the administrative law judge. The 
Commission may in its discretion entertain interlocutory appeals, 
except as provided in Sec. 210.64, when a ruling of the administrative 
law judge:
    (1) Requires the disclosure of Commission records or requires the 
appearance of Government officials pursuant to Sec. 210.32(c)(2);
    (2) Designates the permanent relief phase of an investigation 
``more complicated'' pursuant to Sec. 210.22(b); or
    (3) Denies an application for intervention under Sec. 210.19. 
Appeals from such rulings may be sought by filing an application for 
review, not to exceed 15 pages, with the Commission within five days 
after service of the administrative law judge's ruling. An answer to 
the application for review may be filed within five days after service 
of the application. The application for review should specify the 
person or party taking the appeal, designate the ruling or part thereof 
from which appeal is being taken, and specify the reasons and present 
arguments as to why review is being sought. The Commission may, upon 
its own motion, enter an order staying the return date of an order 
issued by the administrative law judge pursuant to Sec. 210.32(c)(2) or 
may enter an order placing the matter on the Commission's docket for 
review. Any order placing the matter on the Commission's docket for 
review will set forth the scope of the review and the issues that will 
be considered and will make provision for the filing of briefs if 
deemed appropriate by the Commission.
    (b) Appeals with leave of the administrative law judge.
    (1) Except as otherwise provided in paragraph (a) of this section, 
Sec. 210.64, and paragraph (b)(2) of this section, applications for 
review of a ruling by an administrative law judge 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, that the ruling involves a 
controlling question of law or policy as to which there is substantial 
ground for difference of opinion, and that either an immediate appeal 
from the ruling may materially advance the ultimate completion of the 
investigation or subsequent review will be an inadequate remedy.
    (2) Applications for review of a ruling by an administrative law 
judge under Sec. 210.5(d)(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.
    (3) A written application for review under paragraph (b)(1) or 
(b)(2) of this section shall not exceed 15 pages and may be filed 
within five days after service of the administrative law judge's 
determination. An answer to the application for review may be filed 
within five days after service of the application for review. 
Thereupon, the Commission may, in its discretion, permit an appeal. 
Unless otherwise ordered by the Commission, Commission review, if 
permitted, shall be confined to the application for review and answer 
thereto, without oral argument or further briefs.
    (c) Investigation not stayed. Application for review under this 
section shall not stay the investigation before the administrative law 
judge unless the administrative law judge or the Commission shall so 
order.


Sec. 210.25  Sanctions.

    (a) (1) Any party may file a motion for sanctions for abuse of 
process under Sec. 210.4(d)(1), abuse of discovery under 
Sec. 210.27(d)(3), failure to make or cooperate in discovery under 
Sec. 210.33 (b) or (c), or violation of a protective order under 
Sec. 210.34(c). A motion alleging abuse of process should be filed 
promptly after the requirements of Sec. 210.4(d)(1)(i) have been 
satisfied. A motion alleging abuse of discovery, failure to make or 
cooperate in discovery, or violation of a protective order should be 
filed promptly after the allegedly sanctionable conduct is discovered.
    (2) The administrative law judge (when the investigation or related 
proceeding is before him) or the Commission (when the investigation or 
related proceeding is before it) also may raise the sanction issue sua 
sponte. (See also Secs. 210.4(d)(1)(ii), 210.27(d)(3), 210.33(c), and 
210.34(c).)
    (b) A motion for sanctions shall be addressed to the presiding 
administrative law judge, if the allegedly sanctionable conduct 
occurred and is discovered while the administrative law judge is 
presiding in an investigation or in a related proceeding. During an 
investigation, the administrative law judge's ruling on the motion 
shall be in the form of an order, if it is issued before or 
concurrently with the initial determination concerning violation of 
section 337 of the Tariff Act of 1930 or termination of the 
investigation. In a related proceeding, the administrative law judge's 
ruling shall be in the form of an order, regardless of the point in 
time at which the order is issued.
    (c) A motion for sanctions shall be addressed to the Commission, if 
the allegedly sanctionable conduct occurred while the Commission is 
presiding or is filed after the subject investigation or related 
proceeding is terminated. The Commission may assign the motion to an 
administrative law judge for issuance of a recommended determination. 
The deadlines and procedures that will be followed in processing the 
recommended determination will be set forth in the Commission order 
assigning the motion to an administrative law judge.
    (d) If an administrative law judge's order concerning sanctions is 
issued before the initial determination concerning violation of section 
337 of the Tariff Act of 1930 or termination of the investigation, it 
may be appealed under Sec. 210.24(b)(1) with leave from the 
administrative law judge, if the requirements of that section are 
satisfied. If the order is issued concurrently with the initial 
determination, the order may be appealed by filing a petition meeting 
the requirements of Sec. 210.43(b). The periods for filing such 
petitions and responding to the petitions will be specified in the 
Commission notice issued pursuant to Sec. 210.42(i), if the initial 
determination has granted a motion for termination of the 
investigation, or in the Commission notice issued pursuant to 
Sec. 210.46(a), if the initial determination concerns violation of 
section 337. The Commission will determine whether to adopt the order 
after disposition of the initial determination concerning violation of 
section 337 or termination of the investigation.
    (e) If the administrative law judge's ruling on the motion for 
sanctions is in the form of a recommended determination pursuant to 
paragraph (c) of this section, the deadlines and procedures for parties 
to contest the recommended determination will be set forth in the 
Commission order assigning the motion to an administrative law judge.
    (f) If a motion for sanctions is filed with the administrative law 
judge during an investigation, he may defer his adjudication of the 
motion until after he has issued a final initial determination 
concerning violation of section 337 of the Tariff Act of 1930 or 
termination of investigation. If the administrative law judge defers 
his adjudication in such a manner, his ruling on the motion for 
sanctions must be in the form of a recommended determination and shall 
be issued no later than 90 days after issuance of the aforesaid initial 
determination on violation of section 337 or termination of the 
investigation. To aid the Commission in determining whether to adopt a 
recommended determination, any party may file written comments with the 
Commission 14 days after service of the recommended determination. 
Replies to such comments may be filed within seven days after service 
of the comments. The Commission will determine whether to adopt the 
recommended determination after reviewing the parties' arguments and 
taking any other steps the Commission deems appropriate.


Sec. 210.26  Other motions.

    Motions pertaining to discovery shall be filed in accordance with 
Sec. 210.15 and the pertinent provisions of subpart E of this part 
(Secs. 210.27 through 210.34). Motions pertaining to evidentiary 
hearings and prehearing conferences shall be filed in accordance with 
Sec. 210.15 and the pertinent provisions of subpart F of this part 
(Secs. 210.35 through 210.40). Motions for temporary relief shall be 
filed as provided in subpart H of this part (see Secs. 210.52 through 
210.57).

Subpart E--Discovery and Compulsory Process


Sec. 210.27  General provisions governing discovery.

    (a) Discovery methods. The parties to an investigation may obtain 
discovery by one or more of the following methods: depositions upon 
oral examination or written questions; written interrogatories; 
production of documents or things or permission to enter upon land or 
other property for inspection or other purposes; and requests for 
admissions.
    (b) Scope of discovery. Regarding the scope of discovery for the 
temporary relief phase of an investigation, see Sec. 210.61. For the 
permanent relief phase of an investigation, unless otherwise ordered by 
the administrative law judge, a party may obtain discovery regarding 
any matter, not privileged, that is relevant to the following:
    (1) The claim or defense of the party seeking discovery or to the 
claim or defense of any other party, including the existence, 
description, nature, custody, condition, and location of any books, 
documents, or other tangible things;
    (2) The identity and location of persons having knowledge of any 
discoverable matter;
    (3) The appropriate remedy for a violation of section 337 of the 
Tariff Act of 1930 (see Sec. 210.42(a)(1)(ii)(A)); or
    (4) The appropriate bond for the respondents, under section 
337(j)(3) of the Tariff Act of 1930, during Presidential review of the 
remedial order (if any) issued by the Commission (see 
Sec. 210.42(a)(1)(ii)(B)).

It is not grounds for objection that the information sought will be 
inadmissible at the hearing if the information sought appears 
reasonably calculated to lead to the discovery of admissible evidence.
    (c) Supplementation of Responses. (1) A party who has responded to 
a request for discovery with a response is under a duty to supplement 
or correct the response to include information thereafter acquired if 
ordered by the administrative law judge or the Commission or in the 
following circumstances: A party is under a duty seasonably to amend a 
prior response to an interrogatory, request for production, or request 
for admission if the party learns that the response is in some material 
respect incomplete or incorrect and if the additional or corrective 
information has not otherwise been made known to the other parties 
during the discovery process or in writing.
    (2) A duty to supplement responses also may be imposed by agreement 
of the parties, or at any time prior to a hearing through new requests 
for supplementation of prior responses.
    (d) Signing of Discovery Requests, Responses, and Objections. (1) 
The front page of every request for discovery or response or objection 
thereto shall contain a caption setting forth the name of the 
Commission, the title of the investigation or related proceeding, and 
the docket number or investigation number, if any, assigned to the 
investigation or related proceeding.
    (2) Every request for discovery or response or objection thereto 
made by a party represented by an attorney shall be signed by at least 
one attorney of record in the attorney's individual name, whose address 
shall be stated. A party who is not represented by an attorney shall 
sign the request, response, or objection and shall state the party's 
address. The signature of the attorney or party constitutes a 
certification that to the best of the signer's knowledge, information, 
and belief formed after a reasonable inquiry, the request, objection, 
or response is:

    (i) Consistent with Sec. 210.5(a) (if applicable) and other 
relevant provisions of this chapter, and warranted by existing law 
or a good faith argument for the extension, modification, or 
reversal of existing law;
    (ii) Not interposed for any improper purpose, such as to harass 
or to cause unnecessary delay or needless increase in the cost of 
litigation; and
    (iii) Not unreasonable or unduly burdensome or expensive, given 
the needs of the case, the discovery already had in the case, and 
the importance of the issues at stake in the litigation.

If a request, response, or objection is not signed, it shall be 
stricken unless it is signed promptly after the omission is called to 
the attention of the party making the request, response, or objection, 
and a party shall not be obligated to take any action with respect to 
it until it is signed.
    (3) If without substantial justification a request, response, or 
objection is certified in violation of paragraph (d)(2) of this 
section, the administrative law judge or the Commission, upon motion or 
sua sponte under Sec. 210.25 of this part, may impose an appropriate 
sanction upon the person who made the certification, the party on whose 
behalf the request, response, or objection was made, or both.
    (4) An appropriate sanction may include an order to pay to the 
other parties the amount of reasonable expenses incurred because of the 
violation, including a reasonable attorney's fee, to the extent 
authorized by Rule 26(g) of the Federal Rules of Civil Procedure. 
Monetary sanctions shall not be imposed under this section against the 
United States, the Commission, or a Commission investigative attorney.
    (5) Monetary sanctions may be imposed under this section to 
reimburse the Commission for expenses incurred by a Commission 
investigative attorney or the Commission's Office of Unfair Import 
Investigations. Monetary sanctions will not be imposed under this 
section to reimburse the Commission for attorney's fees.


Sec. 210.28  Depositions.

    (a) When depositions may be taken. Following publication in the 
Federal Register of a Commission notice instituting the investigation, 
any party may take the testimony of any person, including a party, by 
deposition upon oral examination or written questions. The presiding 
administrative law judge will determine the permissible dates or 
deadlines for taking such depositions.
    (b) Persons before whom depositions may be taken. Depositions may 
be taken before a person having power to administer oaths by the laws 
of the United States or of the place where the examination is held.
    (c) Notice of examination. A party desiring to take the deposition 
of a person shall give notice in writing to every other party to the 
investigation. The administrative law judge shall determine the 
appropriate period for providing such notice. The notice shall state 
the time and place for taking the deposition and the name and address 
of each person to be examined, if known, and, if the name is not known, 
a general description sufficient to identify him or the particular 
class or group to which he belongs. A notice may provide for the taking 
of testimony by telephone, but the administrative law judge may, on 
motion of any party, require that the deposition be taken in the 
presence of the deponent. The parties may stipulate in writing, or the 
administrative law judge may upon motion order, that the testimony at a 
deposition be recorded by other than stenographic means. If a subpoena 
duces tecum is to be served on the person to be examined, the 
designation of the materials to be produced as set forth in the 
subpoena shall be attached to or included in the notice.
    (d) Taking of deposition. Each deponent shall be duly sworn, and 
any adverse party shall have the right to cross-examine. Objections to 
questions or documents shall be in short form, stating the grounds of 
objections relied upon. Evidence objected to shall be taken subject to 
the objections, except that privileged communications and subject 
matter need not be disclosed. The questions propounded and the answers 
thereto, together with all objections made, shall be reduced to 
writing, after which the deposition shall be subscribed by the deponent 
(unless the parties by stipulation waive signing or the deponent is ill 
or cannot be found or refuses to sign) and certified by the person 
before whom the deposition was taken. If the deposition is not 
subscribed by the deponent, the person administering the oath shall 
state on the record such fact and the reason therefor. When a 
deposition is recorded by stenographic means, the stenographer shall 
certify on the transcript that the witness was sworn in the 
stenographer's presence and that the transcript is a true record of the 
testimony of the witness. When a deposition is recorded by other than 
stenographic means and is thereafter transcribed, the person 
transcribing it shall certify that the person heard the witness sworn 
on the recording and that the transcript is a correct writing of the 
recording. Thereafter, that person shall forward one copy to each party 
who was present or represented at the taking of the deposition. See 
paragraph (i) of this section concerning the effect of errors and 
irregularities in depositions.
    (e) Depositions of nonparty officers or employees of the Commission 
or of other Government agencies. A party desiring to take the 
deposition of an officer or employee of the Commission other than the 
Commission investigative attorney, or of an officer or employee of 
another Government agency, or to obtain documents or other physical 
exhibits in the custody, control, and possession of such officer or 
employee, shall proceed by written motion to the administrative law 
judge for leave to apply for a subpoena under Sec. 210.32(c). Such a 
motion shall be granted only upon a showing that the information 
expected to be obtained thereby is within the scope of discovery 
permitted by Sec. 210.27(b) or Sec. 210.61 and cannot be obtained 
without undue hardship by alternative means.
    (f) Service of deposition transcripts on the Commission staff. The 
party taking the deposition shall promptly serve one copy of the 
deposition transcript on the Commission investigative attorney.
    (g) Admissibility of depositions. The fact that a deposition is 
taken and filed with the Commission investigative attorney as provided 
in this section does not constitute a determination that it is 
admissible in evidence or that it may be used in the investigation. 
Only such part of a deposition as is received in evidence at a hearing 
shall constitute a part of the record in such investigation upon which 
a determination may be based. Objections may be made at the hearing to 
receiving in evidence any deposition or part thereof for any reason 
that would require exclusion of the evidence if the witness were then 
present and testifying.
    (h) Use of depositions. A deposition may be used as evidence 
against any party who was present or represented at the taking of the 
deposition or who had reasonable notice thereof, in accordance with any 
of the following provisions:
    (1) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of a deponent as a witness;
    (2) The deposition of a party may be used by an adverse party for 
any purpose;
    (3) The deposition of a witness, whether or not a party, may be 
used by any party for any purposes if the administrative law judge 
finds--
    (i) That the witness is dead; or
    (ii) That the witness is out of the United States, unless it 
appears that the absence of the witness was procured by the party 
offering the deposition; or
    (iii) That the witness is unable to attend or testify because of 
age, illness, infirmity, or imprisonment; or
    (iv) That the party offering the deposition has been unable to 
procure the attendance of the witness by subpoena; or
    (v) Upon application and notice, that such exceptional 
circumstances exist as to make it desirable in the interest of justice 
and with due regard to the importance of presenting the oral testimony 
of witnesses at a hearing, to allow the deposition to be used.
    (4) If only part of a deposition is offered in evidence by a party, 
an adverse party may require him to introduce any other part that ought 
in fairness to be considered with the part introduced, and any party 
may introduce any other parts.
    (i) Effect of errors and irregularities in depositions. 
    (1) As to notice. All errors and irregularities in the notice for 
taking a deposition are waived unless written objection is promptly 
served upon the party giving notice.
    (2) As to disqualification of person before whom the deposition is 
to be taken. Objection to taking a deposition because of 
disqualification of the person before whom it is to be taken is waived 
unless made before the taking of the deposition begins or as soon 
thereafter as the disqualification becomes known or could be discovered 
with reasonable diligence.
    (3) As to taking of depositions. (i) Objections to the competency 
of a witness or the competency, relevancy, or materiality of testimony 
are not waived by failure to make them before or during the deposition, 
unless the ground of the objection is one which might have been 
obviated or removed if presented at that time.
    (ii) Errors and irregularities occurring at the oral examination in 
the manner of taking the deposition, in the form of the questions or 
answers, in the oath or affirmation, or in the conduct of parties, and 
errors of any kind which might be obviated, removed, or cured if 
promptly presented, are waived unless seasonable objection thereto is 
made at the taking of the deposition.
    (iii) Objections to the form of written questions submitted under 
this section are waived unless served in writing upon the party 
propounding them. The presiding administrative law judge shall set the 
deadline for service of such objections.
    (4) As to completion and return of deposition. Errors and 
irregularities in the manner in which the testimony is transcribed or 
the deposition is prepared, signed, certified, sealed, indorsed, 
transmitted, filed, or otherwise dealt with by the person before whom 
it is taken are waived unless a motion to suppress the deposition or 
some part thereof is made with reasonable promptness after such defect 
is, or with due diligence might have been, ascertained.


Sec. 210.29  Interrogatories.

    (a) Scope; use at hearing. Any party may serve upon any other party 
written interrogatories to be answered by the party served. 
Interrogatories may relate to any matters that can be inquired into 
under Sec. 210.27(b) or Sec. 210.61, and the answers may be used to the 
extent permitted by the rules of evidence.
    (b) Procedure. (1) Interrogatories may be served upon any party 
after the date of publication in the Federal Register of the notice of 
investigation.
    (2) Parties answering interrogatories shall repeat the 
interrogatories being answered immediately preceding the answers. Each 
interrogatory shall be answered separately and fully in writing under 
oath, unless it is objected to, in which event the reasons for 
objection shall be stated in lieu of an answer. The answers are to be 
signed by the person making them, and the objections are to be signed 
by the attorney making them. The party upon whom the interrogatories 
have been served shall serve a copy of the answers, and objections if 
any, within the time specified by the administrative law judge. The 
party submitting the interrogatories may move for an order under 
Sec. 210.33(a) with respect to any objection to or other failure to 
answer an interrogatory.
    (3) An interrogatory otherwise proper is not necessarily 
objectionable merely because an answer to the interrogatory involves an 
opinion or contention that relates to fact or the application of law to 
fact, but the administrative law judge may order that such an 
interrogatory need not be answered until after designated discovery has 
been completed or until a prehearing conference or a later time.
    (c) Option to produce records. When the answer to an interrogatory 
may be derived or ascertained from the records of the party upon whom 
the interrogatory has been served or from an examination, audit, or 
inspection of such records, or from a compilation, abstract, or summary 
based thereon, and the burden of deriving or ascertaining the answer is 
substantially the same for the party serving the interrogatory as for 
the party served, it is a sufficient answer to such interrogatory to 
specify the records from which the answer may be derived or ascertained 
and to afford to the party serving the interrogatory reasonable 
opportunity to examine, audit, or inspect such records and to make 
copies, compilations, abstracts, or summaries. The specifications 
provided shall include sufficient detail to permit the interrogating 
party to locate and to identify, as readily as can the party served, 
the documents from which the answer may be ascertained.


Sec. 210.30  Requests for production of documents and things and entry 
upon land.

    (a) Scope. Any party may serve on any other party a request:
    (1) To produce and permit the party making the request, or someone 
acting on his behalf, to inspect and copy any designated documents 
(including writings, drawings, graphs, charts, photographs, and other 
data compilations from which information can be obtained), or to 
inspect and copy, test, or sample any tangible things that are in the 
possession, custody, or control of the party upon whom the request is 
served; or
    (2) To permit entry upon designated land or other property in the 
possession or control of the party upon whom the request is served for 
the purpose of inspecting and measuring, surveying, photographing, 
testing, or sampling the property or any designated object or operation 
thereon, within the scope of Sec. 210.27(b).
    (b) Procedure. (1) The request may be served upon any party after 
the date of publication in the Federal Register of the notice of 
investigation. The request shall set forth the items to be inspected, 
either by individual item or by category, and describe each item and 
category with reasonable particularity. The request shall specify a 
reasonable time, place, and manner of making the inspection and 
performing the related acts.
    (2) The party upon whom the request is served shall serve a written 
response within the time specified by the administrative law judge. The 
response shall state, with respect to each item or category, that 
inspection and related activities will be permitted as requested, 
unless the request is objected to, in which event the reasons for 
objection shall be stated. If objection is made to part of any item or 
category, the part shall be specified. The party submitting the request 
may move for an order under Sec. 210.33(a) with respect to any 
objection to or other failure to respond to the request or any part 
thereof, or any failure to permit inspection as requested. A party who 
produces documents for inspection shall produce them as they are kept 
in the usual course of business or shall organize and label them to 
correspond to the categories in the request.
    (c) Persons not parties. This section does not preclude issuance of 
an order against a person not a party to permit entry upon land.


Sec. 210.31   Requests for admission.

    (a) Form, content, and service of request for admission. Any party 
may serve on any other party a written request for admission of the 
truth of any matters relevant to the investigation and set forth in the 
request that relate to statements or opinions of fact or of the 
application of law to fact, including the genuineness of any documents 
described in the request. Copies of documents shall be served with the 
request unless they have been otherwise furnished or are known to be, 
and in the request are stated as being, in the possession of the other 
party. Each matter as to which an admission is requested shall be 
separately set forth. The request may be served upon a party whose 
complaint is the basis for the investigation after the date of 
publication in the Federal Register of the notice of investigation. The 
administrative law judge will determine the period within which a party 
may serve a request upon other parties.
    (b) Answers and objections to requests for admissions. A party 
answering a request for admission shall repeat the request for 
admission immediately preceding his answer. The matter may be deemed 
admitted unless, within the period specified by the administrative law 
judge, the party to whom the request is directed serves upon the party 
requesting the admission a sworn written answer or objection addressed 
to the matter. If objection is made, the reason therefor shall be 
stated. The answer shall specifically deny the matter or set forth in 
detail the reasons why the answering party cannot truthfully admit or 
deny the matter. A denial shall fairly meet the substance of the 
requested admission, and when good faith requires that a party qualify 
his answer or deny only a part of the matter as to which an admission 
is requested, he shall specify so much of it as is true and qualify or 
deny the remainder. An answering party may not give lack of information 
or knowledge as a reason for failure to admit or deny unless he states 
that he has made reasonable inquiry and that the information known to 
or readily obtainable by him is insufficient to enable him to admit or 
deny. A party who considers that a matter as to which an admission has 
been requested presents a genuine issue for a hearing may not object to 
the request on that ground alone; he may deny the matter or set forth 
reasons why he cannot admit or deny it.
    (c) Sufficiency of answers. The party who has requested the 
admissions may move to determine the sufficiency of the answers or 
objections. Unless the objecting party sustains his burden of showing 
that the objection is justified, the administrative law judge shall 
order that an answer be served. If the administrative law judge 
determines that an answer does not comply with the requirements of this 
section, he may order either that the matter is admitted or that an 
amended answer be served. The administrative law judge may, in lieu of 
these orders, determine that final disposition of the request be made 
at a prehearing conference or at a designated time prior to a hearing 
under this part.
    (d) Effect of admissions; withdrawal or amendment of admission. Any 
matter admitted under this section may be conclusively established 
unless the administrative law judge on motion permits withdrawal or 
amendment of the admission. The administrative law judge may permit 
withdrawal or amendment when the presentation of the issues of the 
investigation will be subserved thereby and the party who obtained the 
admission fails to satisfy the administrative law judge that withdrawal 
or amendment will prejudice him in maintaining his position on the 
issue of the investigation. Any admission made by a party under this 
section is for the purpose of the pending investigation only and is not 
an admission by him for any other purpose, nor may it be used against 
him in any other proceeding.


Sec. 210.32  Subpoenas.

    (a) Application for issuance of a subpoena. (1) Subpoena ad 
testificandum. An application for issuance of a subpoena requiring a 
person to appear and depose or testify at the taking of a deposition or 
at a hearing shall be made to the administrative law judge.
    (2) Subpoena duces tecum. An application for issuance of a subpoena 
requiring a person to appear and depose or testify and to produce 
specified documents, papers, books, or other physical exhibits at the 
taking of a deposition, at a prehearing conference, at a hearing, or 
under any other circumstances, shall be made in writing to the 
administrative law judge and shall specify the material to be produced 
as precisely as possible, showing the general relevancy of the material 
and the reasonableness of the scope of the subpoena.
    (3) The administrative law judge shall rule on all applications 
filed under paragraph (a)(1) or (a)(2) of this section and may issue 
subpoenas when warranted.
    (b) Use of subpoena for discovery. Subpoenas may be used by any 
party for purposes of discovery or for obtaining documents, papers, 
books or other physical exhibits for use in evidence, or for both 
purposes. When used for discovery purposes, a subpoena may require a 
person to produce and permit the inspection and copying of 
nonprivileged documents, papers, books, or other physical exhibits that 
constitute or contain evidence relevant to the subject matter involved 
and that are in the possession, custody, or control of such person.
    (c) Application for subpoenas for nonparty Commission records or 
personnel or for records and personnel of other Government agencies. 
(1) Procedure. An application for issuance of a subpoena requiring the 
production of nonparty documents, papers, books, physical exhibits, or 
other material in the records of the Commission, or requiring the 
production of records or personnel of other Government agencies shall 
specify as precisely as possible the material to be produced, the 
nature of the information to be disclosed, or the expected testimony of 
the official or employee, and shall contain a statement showing the 
general relevancy of the material, information, or testimony and the 
reasonableness of the scope of the application, together with a showing 
that such material, information, or testimony or their substantial 
equivalent could not be obtained without undue hardship or by 
alternative means.
    (2) Ruling. Such applications shall be ruled upon by the 
administrative law judge, and he may issue such subpoenas when 
warranted. To the extent that the motion is granted, the administrative 
law judge shall provide such terms and conditions for the production of 
the material, the disclosure of the information, or the appearance of 
the official or employee as may appear necessary and appropriate for 
the protection of the public interest.
    (3) Application for subpoena grounded upon the Freedom of 
Information Act. No application for a subpoena for production of 
documents grounded upon the Freedom of Information Act (5 U.S.C. 
Sec. 552) shall be entertained by the administrative law judge.
    (d) Motion to limit or quash. Any motion to limit or quash a 
subpoena shall be filed within such time as the administrative law 
judge may allow.
    (e) Ex parte rulings on applications for subpoenas. Applications 
for the issuance of the subpoenas pursuant to the provisions of this 
section may be made ex parte, and, if so made, such applications and 
rulings thereon shall remain ex parte unless otherwise ordered by the 
administrative law judge.
    (f) Witness Fees. (1) Deponents and witnesses. Any person compelled 
to appear in person to depose or testify in response to a subpoena 
shall be paid the same mileage as are paid witnesses with respect to 
proceedings in the courts of the United States; provided, that salaried 
employees of the United States summoned to depose or testify as to 
matters related to their public employment, irrespective of the party 
at whose instance they are summoned, shall be paid in accordance with 
the applicable Federal regulations.
    (2) Responsibility. The fees and mileage referred to in paragraph 
(f)(1) of this section shall be paid by the party at whose instance 
deponents or witnesses appear. Fees due under this paragraph shall be 
tendered no later than the date for compliance with the subpoena issued 
under this section. Failure to timely tender fees under this paragraph 
shall not invalidate any subpoena issued under this section.
    (g) Obtaining judicial enforcement. In order to obtain judicial 
enforcement of a subpoena issued under paragraphs (a)(3) or (c)(2) of 
this section, the administrative law judge shall certify to the 
Commission, on motion or sua sponte, a request for such enforcement. 
The request shall be accompanied by copies of relevant papers and a 
written report from the administrative law judge concerning the 
purpose, relevance, and reasonableness of the subpoena. The Commission 
will subsequently issue a notice stating whether it has granted the 
request and authorized its Office of the General Counsel to seek such 
enforcement.


Sec. 210.33  Failure to make or cooperate in discovery; sanctions.

    (a) Motion for order compelling discovery. A party may apply to the 
administrative law judge for an order compelling discovery upon 
reasonable notice to other parties and all persons affected thereby.
    (b) Non-monetary sanctions for failure to comply with an order 
compelling discovery. If a party or an officer or agent of a party 
fails to comply with an order including, but not limited to, an order 
for the taking of a deposition or the production of documents, an order 
to answer interrogatories, an order issued pursuant to a request for 
admissions, or an order to comply with a subpoena, the administrative 
law judge, for the purpose of permitting resolution of relevant issues 
and disposition of the investigation without unnecessary delay despite 
the failure to comply, may take such action in regard thereto as is 
just, including, but not limited to the following:
    (1) Infer that the admission, testimony, documents, or other 
evidence would have been adverse to the party;
    (2) Rule that for the purposes of the investigation the matter or 
matters concerning the order or subpoena issued be taken as established 
adversely to the party;
    (3) Rule that the party may not introduce into evidence or 
otherwise rely upon testimony by the party, officer, or agent, or 
documents, or other material in support of his position in the 
investigation;
    (4) Rule that the party may not be heard to object to introduction 
and use of secondary evidence to show what the withheld admission, 
testimony, documents, or other evidence would have shown;
    (5) Rule that a motion or other submission by the party concerning 
the order or subpoena issued be stricken or rule by initial 
determination that a determination in the investigation be rendered 
against the party, or both; or
    (6) Order any other non-monetary sanction available under Rule 
37(b) of the Federal Rules of Civil Procedure. Any such action may be 
taken by written or oral order issued in the course of the 
investigation or by inclusion in the initial determination of the 
administrative law judge. It shall be the duty of the parties to seek, 
and that of the administrative law judge to grant, such of the 
foregoing means of relief or other appropriate relief as may be 
sufficient to compensate for the lack of withheld testimony, documents, 
or other evidence. If, in the administrative law judge's opinion such 
relief would not be sufficient, the administrative law judge shall 
certify to the Commission a request that court enforcement of the 
subpoena or other discovery order be sought.
    (c) Monetary sanctions for failure to make or cooperate in 
discovery. (1) If a party or an officer, director, or managing agent of 
the party or person designated to testify on behalf of a party fails to 
obey an order to provide or permit discovery, the administrative law 
judge or the Commission may make such orders in regard to the failure 
as are just. In lieu of or in addition to taking action listed in 
paragraph (b) of this section and to the extent provided in Rule 
37(b)(2) of the Federal Rules of Civil Procedure, the administrative 
law judge or the Commission, upon motion or sua sponte under 
Sec. 210.25, may require the party failing to obey the order or the 
attorney advising that party or both to pay reasonable expenses, 
including attorney's fees, caused by the failure, unless the 
administrative law judge or the Commission finds that the failure was 
substantially justified or that other circumstances make an award of 
expenses unjust. Monetary sanctions shall not be imposed under this 
section against the United States, the Commission, or a Commission 
investigative attorney.
    (2) Monetary sanctions may be imposed under this section to 
reimburse the Commission for expenses incurred by a Commission 
investigative attorney or the Commission's Office of Unfair Import 
Investigations. Monetary sanctions will not be imposed under this 
section to reimburse the Commission for attorney's fees.


Sec. 210.34  Protective orders.

    (a) Issuance of protective order. Upon motion by a party or by the 
person from whom discovery is sought or by the administrative law judge 
on his own initiative, and for good cause shown, the administrative law 
judge may make any order that may appear necessary and appropriate for 
the protection of the public interest or that justice requires to 
protect a party or person from annoyance, embarrassment, oppression, or 
undue burden or expense, including one or more of the following:
    (1) That discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That discovery may be had only by a method of discovery other 
than that selected by the party seeking discovery;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the administrative law judge;
    (6) That a deposition, after being sealed, be opened only by order 
of the Commission or the administrative law judge;
    (7) That a trade secret or other confidential research, 
development, or commercial information not be disclosed or be disclosed 
only in a designated way; and
    (8) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by 
the Commission or the administrative law judge. If the motion for a 
protective order is denied, in whole or in part, the Commission or the 
administrative law judge may, on such terms and conditions as are just, 
order that any party or person provide or permit discovery. The 
Commission also may, upon motion or sua sponte, issue protective orders 
or may continue or amend a protective order issued by the 
administrative law judge.
    (b) Unauthorized disclosure of information. If confidential 
business information submitted in accordance with the terms of a 
protective order is disclosed to any person other than in a manner 
authorized by the protective order, the party responsible for the 
disclosure must immediately bring all pertinent facts relating to such 
disclosure to the attention of the submitter of the information and the 
administrative law judge or the Commission, and, without prejudice to 
other rights and remedies of the submitter of the information, make 
every effort to prevent further disclosure of such information by the 
party or the recipient of such information.
    (c) Violation of protective order. Any individual who has agreed to 
be bound by the terms of a protective order issued pursuant to 
paragraph (a) of this section, and who is determined to have violated 
the terms of the protective order, may be subject to one or more of the 
following:
    (1) An official reprimand by the Commission;
    (2) Disqualification from or limitation of further participation in 
a pending investigation;
    (3) Temporary or permanent disqualification from practicing in any 
capacity before the Commission pursuant to Sec. 201.15(a) of this 
chapter;
    (4) Referral of the facts underlying the violation to the 
appropriate licensing authority in the jurisdiction in which the 
individual is licensed to practice;
    (5) Sanctions of the sort enumerated in Sec. 210.33(b), or such 
other action as may be appropriate.

The issue of whether sanctions should be imposed may be raised on a 
motion by a party, the administrative law judge's own motion, or the 
Commission's own initiative in accordance with Sec. 210.25(a)(2). The 
Commission or the administrative law judge shall allow the parties to 
make written submissions and, if warranted, to present oral argument 
bearing on the issues of violation of a protective order and sanctions 
therefor. When the motion is addressed to the administrative law judge, 
he shall grant or deny a motion for sanctions by issuing an order.
    (d) Reporting requests for confidential business information. (1) 
Reporting Requirement. Each person subject to protective order issued 
pursuant to paragraph (a) of this section shall report in writing to 
the Commission immediately upon learning that confidential business 
information disclosed to him or her pursuant to the protective order is 
the subject of a subpoena, court or administrative order (other than an 
order of a court reviewing a Commission decision), discovery request, 
agreement, or other written request seeking disclosure, by him or any 
other person, of that confidential business information to persons who 
are not, or may not be, permitted access to that information pursuant 
to either a Commission protective order or Sec. 210.5(b).
    (2) Sanctions and other actions. After providing notice and an 
opportunity to comment, the Commission may impose a sanction upon any 
person who willfully fails to comply with paragraph (d)(1) of this 
section, or it may take other action.

Subpart F--Prehearing Conferences and Hearings


Sec. 210.35  Prehearing conferences.

    (a) When appropriate. The administrative law judge in any 
investigation may direct counsel or other representatives for all 
parties to meet with him for one or more conferences to consider any or 
all of the following:
    (1) Simplification and clarification of the issues;
    (2) Scope of the hearing;
    (3) Necessity or desirability of amendments to pleadings subject, 
however, to the provisions of Sec. 210.14 (b) and (c);
    (4) Stipulations and admissions of either fact or the content and 
authenticity of documents;
    (5) Expedition in the discovery and presentation of evidence 
including, but not limited to, restriction of the number of expert, 
economic, or technical witnesses; and
    (6) Such other matters as may aid in the orderly and expeditious 
disposition of the investigation including disclosure of the names of 
witnesses and the exchange of documents or other physical exhibits that 
will be introduced in evidence in the course of the hearing.
    (b) Subpoenas. Prehearing conferences may be convened for the 
purpose of accepting returns on subpoenas duces tecum issued pursuant 
to Sec. 210.32(a)(3).
    (c) Reporting. In the discretion of the administrative law judge, 
prehearing conferences may or may not be stenographically reported and 
may or may not be public.
    (d) Order. The administrative law judge may enter in the record an 
order that recites the results of the conference. Such order shall 
include the administrative law judge's rulings upon matters considered 
at the conference, together with appropriate direction to the parties. 
The administrative law judge's order shall control the subsequent 
course of the hearing, unless the administrative law judge modifies the 
order.


Sec. 210.36  General provisions for hearings.

    (a) Purpose of hearings. (1) An opportunity for a hearing shall be 
provided in each investigation under this part, in accordance with the 
Administrative Procedure Act. At the hearing, the presiding 
administrative law judge will take evidence and hear argument for the 
purpose of determining whether there is a violation of section 337 of 
the Tariff Act of 1930, and for the purpose of making findings and 
recommendations, as described in Sec. 210.42(a)(1)(ii), concerning the 
appropriate remedy and the amount of the bond to be posted by 
respondents during Presidential review of the Commission's action, 
under section 337(j) of the Tariff Act.
    (2) An opportunity for a hearing in accordance with the 
Administrative Procedure Act shall also be provided in connection with 
every motion for temporary relief filed under this part.
    (b) Public hearings. All hearings in investigations under this part 
shall be public unless otherwise ordered by the administrative law 
judge.
    (c) Expedition. Hearings shall proceed with all reasonable 
expedition, and, insofar as practicable, shall be held at one place, 
continuing until completed unless otherwise ordered by the 
administrative law judge.
    (d) Rights of the parties. Every hearing under this section shall 
be conducted in accordance with the Administrative Procedure Act (i.e., 
5 U.S.C. Secs. 554 through 556). Hence, every party shall have the 
right of adequate notice, cross-examination, presentation of evidence, 
objection, motion, argument, and all other rights essential to a fair 
hearing.
    (e) Presiding official. An administrative law judge shall preside 
over each hearing unless the Commission shall otherwise order.


Sec. 210.37  Evidence.

    (a) Burden of proof. The proponent of any factual proposition shall 
be required to sustain the burden of proof with respect thereto.
    (b) Admissibility. Relevant, material, and reliable evidence shall 
be admitted. Irrelevant, immaterial, unreliable, or unduly repetitious 
evidence shall be excluded. Immaterial or irrelevant parts of an 
admissible document shall be segregated and excluded as far as 
practicable.
    (c) Information obtained in investigations. Any documents, papers, 
books, physical exhibits, or other materials or information obtained by 
the Commission under any of its powers may be disclosed by the 
Commission investigative attorney when necessary in connection with 
investigations and may be offered in evidence by the Commission 
investigative attorney.
    (d) Official notice. When any decision of the administrative law 
judge rests, in whole or in part, upon the taking of official notice of 
a material fact not appearing in evidence of record, opportunity to 
disprove such noticed fact shall be granted any party making timely 
motion therefor.
    (e) Objections. Objections to evidence shall be made in timely 
fashion and shall briefly state the grounds relied upon. Rulings on all 
objections shall appear on the record.
    (f) Exceptions. Formal exception to an adverse ruling is not 
required.
    (g) Excluded evidence. When an objection to a question propounded 
to a witness is sustained, the examining party may make a specific 
offer of what he expects to prove by the answer of the witness, or the 
administrative law judge may in his discretion receive and report the 
evidence in full. Rejected exhibits, adequately marked for 
identification, shall be retained with the record so as to be available 
for consideration by any reviewing authority.


Sec. 210.38  Record.

    (a) Definition of the record. The record shall consist of all 
pleadings, the notice of investigation, motions and responses, all 
briefs and written statements, and other documents and things properly 
filed with the Secretary, in addition to all orders, notices, and 
initial determinations of the administrative law judge, orders and 
notices of the Commission, hearing and conference transcripts, evidence 
admitted into the record, and any other items certified into the record 
by the administrative law judge or the Commission.
    (b) Reporting and transcription. Hearings shall be reported and 
transcribed by the official reporter of the Commission under the 
supervision of the administrative law judge, and the transcript shall 
be a part of the record.
    (c) Corrections. Changes in the official transcript may be made 
only when they involve errors affecting substance. A motion to correct 
a transcript shall be addressed to the administrative law judge, who 
may order that the transcript be changed to reflect such corrections as 
are warranted, after consideration of any objections that may be made. 
Such corrections shall be made by the official reporter by furnishing 
substitute typed pages, under the usual certificate of the reporter, 
for insertion in the transcript. The original uncorrected pages shall 
be retained in the files of the Commission.
    (d) Certification of record. The record shall be certified to the 
Commission by the administrative law judge upon his filing of an 
initial determination or at such earlier time as the Commission may 
order.


Sec. 210.39  In camera treatment of confidential information.

    (a) Definition. Except as hereinafter provided and consistent with 
Secs. 210.5 and 210.34, confidential documents and testimony made 
subject to protective orders or orders granting in camera treatment are 
not made part of the public record and are kept confidential in an in 
camera record. Only the persons identified in a protective order, 
persons identified in Sec. 210.5(b), and court personnel concerned with 
judicial review shall have access to confidential information in the in 
camera record. The right of the administrative law judge and the 
Commission to disclose confidential data under a protective order 
(pursuant to Sec. 210.34) to the extent necessary for the proper 
disposition of each proceeding is specifically reserved.
    (b) In camera treatment of documents and testimony. The 
administrative law judge shall have authority to order documents or 
oral testimony offered in evidence, whether admitted or rejected, to be 
placed in camera.
    (c) Part of confidential record. In camera documents and testimony 
shall constitute a part of the confidential record of the Commission.
    (d) References to in camera information. In submitting proposed 
findings, briefs, or other papers, counsel for all parties shall make 
an attempt in good faith to refrain from disclosing the specific 
details of in camera documents and testimony. This shall not preclude 
references in such proposed findings, briefs, or other papers to such 
documents or testimony including generalized statements based on their 
contents. To the extent that counsel consider it necessary to include 
specific details of in camera data in their presentations, such data 
shall be incorporated in separate proposed findings, briefs, or other 
papers marked ``Business Confidential,'' which shall be placed in 
camera and become a part of the confidential record.


Sec. 210.40  Proposed findings and conclusions and briefs.

    At the time a motion for summary determination under Sec. 210.18(a) 
or a motion for termination under Sec. 210.21(a) is made, or when it is 
found that a party is in default under Sec. 210.16, or at the close of 
the reception of evidence in any hearing held pursuant to this part 
(except as provided in Sec. 210.63), or within a reasonable time 
thereafter fixed by the administrative law judge, any party may file 
proposed findings of fact and conclusions of law, together with reasons 
therefor. When appropriate, briefs in support of the proposed findings 
of fact and conclusions of law may be filed with the administrative law 
judge for his consideration. Such proposals and briefs shall be in 
writing, shall be served upon all parties in accordance with 
Sec. 210.4(g), and shall contain adequate references to the record and 
the authorities on which the submitter is relying.

Subpart G--Determinations and Actions Taken


Sec. 210.41  Termination of investigation.

    Except as provided in Sec. 210.21(b)(2) and (c), an order of 
termination issued by the Commission shall constitute a determination 
of the Commission under Sec. 210.45(c).


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 within nine months after publication of the notice 
of investigation in an ordinary case or within 14 months after such 
publication in a ``more complicated'' case.
    (ii) Recommended determination on issues concerning permanent 
relief and bonding. Unless the Commission orders otherwise, within 14 
days after issuance of the initial determination on violation of 
section 337 of the Tariff Act of 1930, the administrative law judge 
shall issue a recommended determination containing findings of fact and 
recommendations concerning--
    (A) The appropriate remedy in the event that the Commission finds a 
violation of section 337, and
    (B) The amount of the bond to be posted by the respondents during 
Presidential review of Commission action under section 337(j) of the 
Tariff Act.
    (2) On certain motions to declassify information. Following 
issuance of the public version of an initial determination under 
paragraph (a)(1)(i) of this section, the decision of an administrative 
law judge granting a motion to declassify information, in whole or in 
part, shall be in the form of an initial determination as provided in 
Sec. 210.20(b).
    (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 of a complainant's 
temporary relief bond, in whole or in part, is governed by Sec. 210.70 
of this section.
    (c) On other matters. The administrative law judge shall grant by 
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; or a motion for forfeiture of a complainant's temporary 
relief bond pursuant to Sec. 210.70.
    (d) Contents. The initial determination shall include: an opinion 
stating findings (with specific page references to principal supporting 
items of evidence in the record) and conclusions and the reasons or 
bases therefor necessary for the disposition of all material issues of 
fact, law, or discretion presented in the record; and a statement that, 
pursuant to Sec. 210.42(h), the initial determination shall become the 
determination of the Commission unless a party files a petition for 
review of the initial determination pursuant to Sec. 210.43(a) or the 
Commission, pursuant to Sec. 210.44, orders on its own motion a review 
of the initial determination or certain issues therein.
    (e) Notice to and advice from other departments and agencies. 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 
shall be served with a copy of the initial determination. 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 20 days 
after the service of an initial determination filed pursuant to 
Sec. 210.42(a)(1)(i) or 10 days after the service of an initial 
determination filed pursuant to Sec. 210.42(c) or Sec. 210.66(a) to 
submit their comments.
    (f) Initial determination made by the administrative law judge. An 
initial determination under this section shall be made and filed by the 
administrative law judge who presided over the investigation, except 
when that person is unavailable to the Commission and except as 
provided in Sec. 210.20(a).
    (g) Reopening of proceedings by the administrative law judge. At 
any time prior to the filing of the initial determination, the 
administrative law judge may reopen the proceedings for the reception 
of additional evidence.
    (h) Effect. (1) An initial determination filed pursuant to 
Sec. 210.42(a)(2) shall become the determination of the Commission 45 
days after the date of service of the initial determination, unless the 
Commission has ordered review of the initial determination or certain 
issues therein, or by order has changed the effective date of the 
initial determination.
    (2) An initial determination under Sec. 210.42(a)(1)(i) shall 
become the determination of the Commission 45 days after the date of 
service of the initial determination, unless the Commission, within 45 
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. The findings and 
recommendations made by the administrative law judge in the recommended 
determination issued pursuant to Sec. 210.42(a)(1)(ii) will be 
considered by the Commission in reaching determinations on remedy and 
bonding by the respondents pursuant to Sec. 210.50(a).
    (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 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.
    (4) The disposition of an initial determination granting or denying 
a motion for temporary relief is governed by Sec. 210.66.
    (5) The disposition of an initial determination concerning possible 
forfeiture of a complainant's temporary relief bond is governed by 
Sec. 210.70(c).
    (i) Notice of determination. A notice stating the Commission's 
decision on whether to review an initial determination will be issued 
by the Secretary, served on the parties, and published in the Federal 
Register.


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) or Sec. 210.70(c) by filing a petition with the 
Secretary. A petition for review of an initial determination issued 
under Sec. 210.42(a)(1) must be filed within 10 days after service of 
the initial determination. A petition for review of an initial 
determination issued under Sec. 210.42(c) must be filed within five 
business days after issuance of the initial determination. A petition 
for review of an initial determination issued under Sec. 210.70(c) must 
be filed within 10 days after issuance of the initial determination.
    (2) A party may not petition for review of any issue as to which 
the party has been found to be in default. Similarly, a party or 
proposed respondent who did not file a response to the motion addressed 
in the initial determination may be deemed to have consented to the 
relief requested and may not petition for review of the issues raised 
in the motion.
    (b) Content of the petition. (1) A petition for review filed under 
this section shall identify the party seeking review and shall specify 
the issues upon which review of the initial determination is sought, 
and shall, with respect to each such issue, specify one or more of the 
following grounds upon which review is sought:
    (i) That a finding or conclusion of material fact is clearly 
erroneous;
    (ii) That a legal conclusion is erroneous, without governing 
precedent, rule or law, or constitutes an abuse of discretion; or
    (iii) That the determination is one affecting Commission policy.

The petition for review must set forth a concise statement of the facts 
material to the consideration of the stated issues, and must present a 
concise argument providing the reasons that review by the Commission is 
necessary or appropriate to resolve an important issue of fact, law, or 
policy.
    (2) Any issue not raised in a petition for review will be deemed to 
have been abandoned by the petitioning party and may be disregarded by 
the Commission in reviewing the initial determination (unless the 
Commission chooses to review the issue on its own initiative under 
Sec. 210.44).
    (3) Any petition designated by the petitioner as a ``contingent'' 
petition for review shall be deemed to be a petition under paragraph 
(a)(1) of this section and shall be processed accordingly.
    (4) A party's failure to file a petition for review of an initial 
determination shall constitute abandonment of all issues decided 
adversely to that party in the initial determination.
    (c) Responses to the petition. Any party may file a response to a 
petition for review within five business days after service of the 
petition, except that a party who has been found to be in default may 
not file a response to any issue as to which the party has defaulted.
    (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) 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. 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(c) within 30 days of the service of the initial 
determination on the parties, or by such other time as the Commission 
may order.
    (2) The Commission shall decide whether to grant a petition for 
review, based upon the petition and response thereto, without oral 
argument or further written submissions unless the Commission shall 
order otherwise. A petition will be granted and review will be ordered 
if it appears that an error or abuse of the type described in paragraph 
(b)(1) of this section is present or if the petition raises a policy 
matter connected with the initial determination, which the Commission 
thinks it necessary or appropriate to address.
    (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. 
The notice that the Commission has granted the petition for review 
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.


Sec. 210.44  Commission review on its own motion of initial 
determinations on matters other than temporary relief.

    Within the time provided in Sec. 210.43(d)(1), the Commission on 
its own initiative may order review of an initial determination, or 
certain issues in the initial determination, when at least one of the 
participating Commissioners votes for ordering review. A self-initiated 
Commission review of an initial determination will be ordered if it 
appears that an error or abuse of the kind described in 
Sec. 210.43(b)(1) is present or the initial determination raises a 
policy matter which the Commission thinks is necessary or appropriate 
to address.


Sec. 210.45  Review of initial determinations on matters other than 
temporary relief.

    (a) Briefs and oral argument. In the event the Commission orders 
review of an initial determination pertaining to issues other than 
temporary relief, the parties may be requested to file briefs on the 
issues under review at a time and of a size and nature specified in the 
notice of review. The parties, within the time provided for filing the 
review briefs, may submit a written request for a hearing to present 
oral argument before the Commission, which the Commission in its 
discretion may grant or deny. The Commission shall grant the request 
when at least one of the participating Commissioners votes in favor of 
granting the request.
    (b) Scope of review. Only the issues set forth in the notice of 
review, and all subsidiary issues therein, will be considered by the 
Commission.
    (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.


Sec. 210.46  Petitions for and sua sponte review of initial 
determinations on violation of section 337 or temporary relief.

    (a) Violation of section 337. An initial determination issued under 
Sec. 210.42(a)(1)(i) on whether respondents have violated section 337 
of the Tariff Act of 1930 will be processed as provided in 
Sec. 210.42(e), (h)(2), and (i) and Secs. 210.43 through 210.45. The 
Commission will issue a notice setting deadlines for written 
submissions from the parties, other Federal agencies, and interested 
members of the public on the issues of remedy, the public interest, and 
bonding by the respondents. In those submissions, the parties may 
assert their arguments concerning the recommended determination issued 
by the administrative law judge pursuant to Sec. 210.42(a)(ii) on the 
issues of remedy and bonding by respondents.
    (b) Temporary relief. Commission action on an initial determination 
concerning temporary relief is governed by Sec. 210.66.


Sec. 210.47  Petitions for reconsideration.

    Within 14 days after service of a Commission determination, any 
party may file with the Commission a petition for reconsideration of 
such determination or any action ordered to be taken thereunder, 
setting forth the relief desired and the grounds in support thereof. 
Any petition filed under this section must be confined to new questions 
raised by the determination or action ordered to be taken thereunder 
and upon which the petitioner had no opportunity to submit arguments. 
Any party desiring to oppose such a petition shall file an answer 
thereto within five days after service of the petition upon such party. 
The filing of a petition for reconsideration shall not stay the 
effective date of the determination or action ordered to be taken 
thereunder or toll the running of any statutory time period affecting 
such determination or action ordered to be taken thereunder unless 
specifically so ordered by the Commission.


Sec. 210.48  Disposition of petitions for reconsideration.

    The Commission may affirm, set aside, or modify its determination, 
including any action ordered by it to be taken thereunder. When 
appropriate, the Commission may order the administrative law judge to 
take additional evidence.


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 or a consent order pursuant 
to Sec. 210.21 (b) or (c), respectively, shall be served upon each 
party to the investigation.
    (b) Publication and transmittal to the President. A Commission 
determination that there is a violation of section 337 of the Tariff 
Act of 1930 or that there is reason to believe that there is such a 
violation, together with the action taken relative to such 
determination, or Commission action taken pursuant to subpart I of this 
part, shall promptly be published in the Federal Register and 
transmitted to the President, together with the record upon which the 
determination and the action are based.
    (c) Enforceability of Commission action. Unless otherwise 
specified, any Commission action other than an exclusion order or an 
order directing seizure and forfeiture of articles imported in 
violation of an outstanding exclusion order shall be enforceable upon 
receipt by the affected party of notice of such action. Exclusion 
orders and seizure and forfeiture orders shall be enforceable upon 
receipt of notice thereof by the Secretary of the Treasury.
    (d) Finality of affirmative Commission action. If the President 
does not disapprove the Commission's action within a 60-day period 
beginning the day after a copy of the Commission's action is delivered 
to the President, or if the President notifies the Commission before 
the close of the 60-day period that he approves the Commission's 
action, such action shall become final the day after the close of the 
60-day period or the day the President notifies the Commission of his 
approval, as the case may be.
    (e) Duration. Final Commission action shall remain in effect as 
provided in subpart I of this part.


Sec. 210.50  Commission action, the public interest, and bonding by 
respondents.

    (a) During the course of each investigation under this part, the 
Commission shall--
    (1) Consider what action (general or limited exclusion of articles 
from entry or a cease and desist order, or exclusion of articles from 
entry under bond or a temporary cease and desist order), if any, it 
should take, and, when appropriate, take such action;
    (2) Consult with and seek advice and information from 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 it considers appropriate, 
concerning the subject matter of the complaint and the effect its 
actions (general or limited exclusion of articles from entry or a cease 
and desist order, or exclusion of articles from entry under bond or a 
temporary cease and desist order) under section 337 of the Tariff Act 
of 1930 shall have 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;
    (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 taking into account, among other things, 
the amount that would offset any competitive advantage to the 
respondent resulting from its alleged unfair methods of competition and 
unfair acts in the importation or sale of the articles in question;
    (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.

When the matter under consideration pursuant to paragraph (a)(1) of 
this section is whether to grant some form of permanent relief, the 
submissions described in paragraph (a)(4) of this section shall be 
filed by the deadlines specified in the Commission notice issued 
pursuant to Sec. 210.46(a). When the matter under consideration is 
whether to grant some form of temporary relief, such submissions shall 
be filed by the deadlines specified in Sec. 210.67(b), unless the 
Commission orders otherwise. Any submission from a party shall be 
served upon the other parties in accordance with Sec. 210.4(g). The 
parties' submissions, as well as any filed by interested persons or 
other agencies shall be available for public inspection in the Office 
of the Secretary. The Commission will consider motions for oral 
argument or, when necessary, a hearing with respect to the subject 
matter of this section, except that no hearing or oral argument will be 
permitted in connection with a motion for temporary relief.
    (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 
Secs. 210.61, 210.62, and 210.66(a). For purposes of the recommended 
determination required by Sec. 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, and except as provided in paragraph (b)(2) of this 
section, an administrative law judge shall not address the issue of the 
public interest for purposes of an initial determination on violation 
of section 337 of the Tariff Act under Sec. 210.42(a)(1)(i).
    (2) Regarding settlements by agreement or consent order under 
Sec. 210.21 (b) or (c), the parties may file statements regarding the 
impact of the proposed settlement 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. Thereafter, the administrative law judge shall consider and 
make appropriate findings in the initial determination regarding the 
effect of the proposed settlement on 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.


Sec. 210.51  Period for concluding investigation.

    (a) Permanent relief. The permanent relief phase of each 
investigation instituted under this part shall be concluded and a final 
order issued no later than 12 months after the date of publication in 
the Federal Register of the notice instituting the investigation, 
unless the investigation has been designated ``more complicated'' 
pursuant to Sec. 210.22(b). If that designation has been made, the 
deadline for concluding the investigation is 18 months after the 
publication of the notice of investigation.
    (b) Temporary relief. The temporary relief phase of an 
investigation shall be concluded and a final order issued no later than 
90 days after publication of the notice of investigation in the Federal 
Register, unless the temporary relief phase of the investigation has 
been designated ``more complicated'' by the Commission or the presiding 
administrative law judge pursuant to Sec. 210.22(c) and Sec. 210.60. If 
that designation has been made, the temporary relief phase of the 
investigation shall be concluded and a final order issued no later than 
150 days after publication of the notice of investigation in the 
Federal Register.
    (c) Computation of time. In computing the deadlines imposed in 
paragraphs (a) and (b) of this section, there shall be excluded any 
period during which the investigation is suspended because of 
proceedings in a court or agency of the United States involving similar 
questions concerning the subject matter of such investigation.

Subpart H--Temporary Relief


Sec. 210.52  Motions for temporary relief.

    Requests for temporary relief under section 337 (e) or (f) of the 
Tariff Act of 1930 shall be made through a motion filed in accordance 
with the following provisions:
    (a) A complaint requesting temporary relief shall be accompanied by 
a motion setting forth the complainant's request for such relief. In 
determining whether to grant temporary relief, the Commission will 
apply the standards the U.S. Court of Appeals for the Federal Circuit 
uses in determining whether to affirm lower court decisions granting 
preliminary injunctions. The motion for temporary relief accordingly 
must contain a detailed statement of specific facts bearing on the 
factors the Federal Circuit has stated that a U.S. District Court must 
consider in granting a preliminary injunction.
    (b) The motion must also contain a detailed statement of facts 
bearing on:
    (1) Whether the complainant should be required to post a bond as a 
prerequisite to the issuance of temporary relief; and
    (2) The appropriate amount of the bond, if the Commission 
determines that a bond will be required.
    (c) The factors the Commission will consider in determining whether 
to require a bond as a prerequisite to the issuance of temporary relief 
include the following:
    (1) The strength of the complainant's case;
    (2) Whether posting a bond would impose an undue hardship on the 
complainant;
    (3) Whether the respondent has responded to the motion for 
temporary relief (in the time and manner specified in Sec. 210.59 or by 
order of the Commission or the administrative law judge);
    (4) Whether the respondent will be harmed by issuance of the 
temporary relief sought by the complainant;
    (5) Any other legal, equitable, or public interest consideration 
that is relevant to whether the complainant should be required to post 
a bond as a condition precedent to obtaining temporary relief, 
including whether the complainant is likely to use the temporary relief 
proceedings or the temporary relief order to harass the respondents or 
for some other improper purpose.
    No single factor will be determinative. The Commission's general 
policy is to favor the posting of a bond in every case. Therefore, a 
complainant who believes that a bond should not be required has the 
burden of persuading the Commission.
    (d) The following documents and information also shall be filed 
along with the motion for temporary relief:
    (1) A memorandum of points and authorities in support of the 
motion;
    (2) Affidavits executed by persons with knowledge of the facts 
asserted in the motion; and
    (3) All documents, information, and other evidence in complainant's 
possession that complainant intends to submit in support of the motion.
    (e) The complainant must also provide information and documents 
that will assist the presiding administrative law judge and the 
Commission in computing the amount of the bond, if a bond is to be 
required. (A complainant also may file, if it chooses, a draft of the 
bond it expects to submit if a bond is to be required.) In cases where 
a domestic industry exists and domestic sales of the product in 
question have commenced and have not been de minimis, the amount of the 
bond is likely to be the amount indicated on the following schedule 
based on the sales revenues from the domestic product at issue--and, if 
applicable, licensing royalties from the intellectual property right at 
issue--as reflected in the complainant's audited annual financial 
statements for the most recent fiscal year: 

------------------------------------------------------------------------
                                                                 Bond   
        Complainant's sales and licensing royalties             amount  
------------------------------------------------------------------------
Less than $1 million........................................     $10,000
Greater than $1 million but not more than $10 million.......     100,000
Greater than $10 million but not more than $50 million......     250,000
Greater than $50 million but not more than $100 million.....     500,000
Greater than $100 million...................................        \1\1
------------------------------------------------------------------------
\1\Million.                                                             

    In cases in which the foregoing schedule applies, the complainant 
must provide the following documents:
    (1) The audited financial statements (or the equivalent thereof, if 
audited statements do not exist) for the most recently completed fiscal 
year;
    (2) The back-up income statements, work sheets, or other documents 
showing revenues for the domestic product at issue in the 
investigation, which are tied to the aggregate revenue listed on the 
financial statements; and
    (3) A certification under oath by the complainant's chief financial 
officer indicating that the detail provided in the work sheets or other 
documents tied to the audited financial statements is correct.

The Commission retains the option to require bonds in higher or lower 
amounts than prescribed under the aforesaid schedule in exceptional 
cases. In cases in which the aforesaid schedule would not be 
appropriate, the amount of the bond will be determined on a case-by-
case basis. In such cases, the motion for temporary relief should state 
why the prescribed schedule is not appropriate (with supporting 
documentation where appropriate). The motion should also state the 
theory the complainant believes is appropriate for computing the amount 
of the bond (if the Commission determines to require a bond) and should 
provide supporting financial and economic data with certification under 
oath executed by the complainant's chief financial officer attesting to 
the veracity of the data provided. All complainants who are seeking 
temporary relief (including complainants who have provided the audited 
financial statements and back up data listed above) must be prepared to 
provide upon short notice any additional financial or economic data 
requested by the presiding administrative law judge in connection with 
the issue of bonding and the certification under oath by the 
complainant's chief financial officer that the information submitted is 
correct.
    (f) If the complaint, the motion for temporary relief, and the 
supporting documentation contain confidential business information as 
defined in Sec. 201.6(a) of this chapter, the complainant must follow 
the procedure outlined in Secs. 210.5(a), 201.6 (a) and (c), and 
210.55.


Sec. 210.53  Motion filed after complaint.

    (a) A motion for temporary relief may be filed after the complaint, 
but must be filed prior to the Commission determination under 
Sec. 210.10 on whether to institute an investigation. A motion filed 
after the complaint shall contain the information, documents, and 
evidence described in Sec. 210.52 and must also make a showing that 
extraordinary circumstances exist that warrant temporary relief and 
that the moving party was not aware, and with due diligence could not 
have been aware, of those circumstances at the time the complaint was 
filed. When a motion for temporary relief is filed after the complaint 
but before the Commission has determined whether to institute an 
investigation based on the complaint, the 35-day period allotted under 
Sec. 210.58 for review of the complaint and informal investigatory 
activity will begin to run anew from the date on which the motion was 
filed.
    (b) A motion for temporary relief may not be filed after an 
investigation has been instituted.


Sec. 210.54  Service of motion by the complainant.

    Notwithstanding the provisions of Sec. 210.11 regarding service of 
the complaint and motion for temporary relief by the Commission upon 
institution of an investigation, on the day the complainant files a 
complaint and motion for temporary relief with the Commission (see 
Sec. 201.8(a) of this chapter), the complainant must serve 
nonconfidential copies of both documents (as well as nonconfidential 
copies of all materials or documents attached thereto) on all proposed 
respondents and on the embassy in Washington, DC of each country from 
which the allegedly unfair imports come. The complaint and motion shall 
be served by messenger, courier, express mail, or equivalent means. A 
signed certificate of service must accompany the complaint and motion 
for temporary relief. If the certificate does not accompany the 
complaint and the motion, the Secretary shall not accept the complaint 
or the motion and shall promptly notify the submitter. Actual proof of 
service on each respondent and embassy (e.g., certified mail return 
receipts, courier or overnight delivery receipts, or other proof of 
delivery)--or proof of a serious but unsuccessful effort to make such 
service--must be filed within 10 days after the filing of the complaint 
and motion. If the requirements of this section are not satisfied, the 
Commission may extend its 35-day deadline under Sec. 210.58 for 
determining whether to provisionally accept the motion for temporary 
relief and institute an investigation on the basis of the complaint.


Sec. 210.55  Content of service copies.

    (a) Any purported confidential business information that is deleted 
from the nonconfidential service copies of the complaint and motion for 
temporary relief must satisfy the requirements of Sec. 201.6(a) of this 
chapter (which defines confidential information for purposes of 
Commission proceedings). For attachments to the complaint or motion 
that are confidential in their entirety, the complainant must provide a 
nonconfidential summary of what each attachment contains. Despite the 
redaction of confidential material from the complaint and motion for 
temporary relief, the nonconfidential service copies must contain 
enough factual information about each element of the violation alleged 
in the complaint and the motion to enable each proposed respondent to 
comprehend the allegations against it.
    (b) If the Commission determines that the complaint, motion for 
temporary relief, or any exhibits or attachments thereto contain 
excessive designations of confidentiality that are not warranted under 
Sec. 201.6(a) of this chapter, the Commission may require the 
complainant to file and serve new nonconfidential versions of the 
aforesaid submissions and may determine that the 35-day period under 
Sec. 210.58 for deciding whether to institute an investigation and to 
provisionally accept the motion for temporary relief for further 
processing shall begin to run anew from the date the new 
nonconfidential versions are filed with the Commission and served on 
the proposed respondents.


Sec. 210.56  Notice accompanying service copies.

    (a) Each service copy of the complaint and motion for temporary 
relief shall be accompanied by a notice containing the following text:

    Notice is hereby given that the attached complaint and motion 
for temporary relief will be filed with the U.S. International Trade 
Commission in Washington, DC on __________, 19__. The filing of the 
complaint and motion will not institute an investigation on that 
date, however, nor will it begin the period for filing responses to 
the complaint and motion pursuant to 19 CFR 210.13 and 210.59.
    Upon receipt of the complaint, the Commission will examine the 
complaint for sufficiency and compliance with 19 CFR 201.8, 210.4, 
210.5, 210.8, and 210.12. The Commission's Office of Unfair Import 
Investigations will conduct informal investigatory activity pursuant 
to 19 CFR 210.9 to identify sources of relevant information and to 
assure itself of the availability thereof. The motion for temporary 
relief will be examined for sufficiency and compliance with 19 CFR 
201.8, 210.4, 210.5, 210.52, 210.53(a) (if applicable), 210.54, 
210.55, and 210.56, and will be subject to the same type of 
preliminary investigative activity as the complaint.
    The Commission generally will determine whether to institute an 
investigation on the basis of the complaint and whether to 
provisionally accept the motion for temporary relief within 35 days 
after the complaint and motion are filed or, if the motion is filed 
after the complaint, within 35 days after the motion is filed--
unless the 35-day deadline is extended pursuant to 19 CFR 210.53, 
210.54, 210.55(b), 210.57, or 210.58. If the Commission determines 
to institute an investigation and provisionally accept the motion, 
the motion will be assigned to a Commission administrative law judge 
for issuance of an initial determination in accordance with 19 CFR 
210.66. See 19 CFR 210.10 and 210.58.
    If the Commission determines to conduct an investigation of the 
complaint and the motion for temporary relief, the investigation 
will be formally instituted on the date the Commission publishes a 
notice of investigation in the Federal Register pursuant to 19 CFR 
210.10(b). If an investigation is instituted, copies of the 
complaint, the notice of investigation, the motion for temporary 
relief, and the Commission's Rules of Practice and Procedure (19 CFR 
Part 210) will be served on each respondent by the Commission 
pursuant to 19 CFR 210.11(a). Responses to the complaint, the notice 
of investigation, and the motion for temporary relief must be filed 
within 10 days after Commission service thereof, and must comply 
with 19 CFR 201.8, 210.4, 210.5, 210.13, and 210.59. See also 19 CFR 
201.14 and 210.6 regarding computation of the 10-day response 
period.
    If, after reviewing the complaint and motion for temporary 
relief, the Commission determines not to institute an investigation, 
the complaint and motion will be dismissed and the Commission will 
provide written notice of that decision and the reasons therefor to 
the complainant and all proposed respondents pursuant to 19 CFR 
210.10.
    For information concerning the filing and processing of the 
complaint and its treatment, and to ask general questions concerning 
section 337 practice and procedure, contact the Office of Unfair 
Import Investigations, U.S. International Trade Commission, 500 E 
Street SW., Room 401, Washington, DC 20436, telephone 202-205-2560. 
Such inquiries will be referred to the Commission investigative 
attorney assigned to the complaint. (See also the Commissions's 
Rules of Practice and Procedure set forth in 19 CFR Part 210.)
    To learn the date that the Commission will vote on whether to 
institute an investigation and the publication date of the notice of 
investigation (if the Commission decides to institute an 
investigation), contact the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW., room 112, 
Washington, DC 20436, telephone 202-205-2000.
    This notice is being provided pursuant to 19 CFR 210.56.

    (b) In the event that the complaint and motion for temporary relief 
are filed after the date specified in the above notice, the complainant 
must serve a supplementary notice to all proposed respondents and 
embassies stating the correct filing date. The supplementary notice 
shall be served by messenger, courier, express mail, or equivalent 
means. The complainant shall file a certificate of service and a copy 
of the supplementary notice with the Commission.


Sec. 210.57  Amendment of the motion.

    A motion for temporary relief may be amended at any time prior to 
the institution of an investigation. All material filed to amend the 
motion (or the complaint) must be served on all proposed respondents 
and on the embassies in Washington, DC, of the foreign governments that 
they represent, in accordance with Sec. 210.54. If the amendment 
expands the scope of the motion or changes the complainant's assertions 
on the issue of whether a bond is to be required as a prerequisite to 
the issuance of temporary relief or the appropriate amount of the bond, 
the 35-day period under Sec. 210.58 for determining whether to 
institute an investigation and provisionally accept the motion for 
temporary relief shall begin to run anew from the date the amendment is 
filed with the Commission. A motion for temporary relief may not be 
amended to expand the scope of the temporary relief inquiry after an 
investigation is instituted.


Sec. 210.58  Provisional acceptance of the motion.

    The Commission shall determine whether to accept a motion for 
temporary relief at the same time it determines whether to institute an 
investigation on the basis of the complaint. That determination shall 
be made within 35 days after the complaint and motion for temporary 
relief are filed, unless the 35-day period is restarted pursuant to 
Sec. 210.53(a), 210.54, 210.55, or 210.57, or exceptional circumstances 
exist which preclude adherence to the prescribed deadline. (See 
Sec. 210.10(a)(1).) Before the Commission determines whether to 
provisionally accept a motion for temporary relief, the motion will be 
examined for sufficiency and compliance with Secs. 210.52, 210.53(a) 
(if applicable), 210.54 through 210.56, as well as Secs. 201.8, 210.4, 
and 210.5. The motion will be subject to the same type of preliminary 
investigatory activity as the complaint. (See Sec. 210.9(b).) 
Acceptance of a motion pursuant to this paragraph constitutes 
provisional acceptance for referral of the motion to the chief 
administrative law judge, who will assign the motion to a presiding 
administrative law judge for issuance of an initial determination under 
Sec. 210.66(a). Commission rejection of an insufficient or improperly 
filed complaint will preclude acceptance of a motion for temporary 
relief. Commission rejection of a motion for temporary relief will not 
preclude institution of an investigation of the complaint.


Sec. 210.59  Responses to the motion and the complaint.

    (a) Any party may file a response to a motion for temporary relief. 
Unless otherwise ordered by the administrative law judge, a response to 
a motion for temporary relief in an ordinary investigation must be 
filed not later than 10 days after service of the motion by the 
Commission. In a ``more complicated'' investigation, the response shall 
be due within 20 days after such service, unless otherwise ordered by 
the presiding administrative law judge.
    (b) The response must comply with the requirements of Sec. 201.8 of 
this chapter, as well as Secs. 210.4 and 210.5 of this part, and shall 
contain the following information:
    (1) A statement that sets forth with particularity any objection to 
the motion for temporary relief;
    (2) A statement of specific facts concerning the factors the U.S. 
Court of Appeals for the Federal Circuit would consider in determining 
whether to affirm lower court decisions granting or denying preliminary 
injunctions;
    (3) A memorandum of points and authorities in support of the 
respondent's response to the motion;
    (4) Affidavits, where possible, executed by persons with knowledge 
of the facts specified in the response. Each response to the motion 
must address, to the extent possible, the complainant's assertions 
regarding whether a bond should be required and the appropriate amount 
of the bond. Responses to the motion for temporary relief also may 
contain counter-proposals concerning the amount of the bond or the 
manner in which the bond amount should be calculated.
    (c) Each response to the motion for temporary relief must also be 
accompanied by a response to the complaint and notice of investigation. 
Responses to the complaint and notice of investigation must comply with 
Sec. 201.8 of this chapter, Secs. 210.4 and 210.5 of this part, and any 
protective order issued by the administrative law judge under 
Sec. 210.34 of this part.


Sec. 210.60  Designating an investigation ``more complicated'' for the 
purpose of adjudicating a motion for temporary relief.

    At the time the Commission determines to institute an investigation 
and provisionally accepts a motion for temporary relief pursuant to 
Sec. 210.58, the Commission may designate the investigation ``more 
complicated'' pursuant to Sec. 210.22(c) for the purpose of obtaining 
up to 60 additional days to adjudicate the motion for temporary relief. 
In the alternative, after the motion for temporary relief is referred 
to the administrative law judge for an initial determination under 
Sec. 210.66(a), the administrative law judge may issue an order, sua 
sponte or on motion, designating the investigation ``more complicated'' 
for the purpose of obtaining additional time to adjudicate the motion 
for temporary relief. Such order shall constitute a final determination 
of the Commission, and notice of the order shall be published in the 
Federal Register. As required by section 337(e)(2) of the Tariff Act of 
1930, the notice shall state the reasons that the temporary relief 
phase of the investigation was designated ``more complicated.'' The 
``more complicated'' designation may be conferred by the Commission or 
the presiding administrative law judge pursuant to this paragraph on 
the basis of the complexity of the issues raised in the motion for 
temporary relief or the responses thereto, or for other good cause 
shown.


Sec. 210.61  Discovery and compulsory process.

    The presiding administrative law judge shall set all discovery 
deadlines. The administrative law judge's authority to compel discovery 
includes discovery relating to the following issues:
    (a) Any matter relevant to the motion for temporary relief and the 
responses thereto, including the issues of bonding by the complainant; 
and
    (b) The issues the Commission considers pursuant to sections 337 
(e)(1), (f)(1), and (j)(3) of the Tariff Act of 1930, viz.,
    (1) The appropriate form of relief (notwithstanding the form 
requested in the motion for temporary relief),
    (2) Whether the public interest precludes that form of relief, and
    (3) The amount of the bond to be posted by the respondents to 
secure importations or sales of the subject imported merchandise while 
the temporary relief order is in effect. The administrative law judge 
may, but is not required to, make findings on the issues specified in 
sections 337 (e)(1), (f)(1), or (j)(3) of the Tariff Act of 1930. 
Evidence and information obtained through discovery on those issues 
will be used by the parties and considered by the Commission in the 
context of the parties' written submissions on remedy, the public 
interest, and bonding by respondents, which are filed with the 
Commission pursuant to Sec. 210.67(b).


Sec. 210.62  Evidentiary hearing.

    An opportunity for a hearing in accordance with the Administrative 
Procedure Act and Sec. 210.36 of this part will be provided in 
connection with every motion for temporary relief. If a hearing is 
conducted, the presiding administrative law judge may, but is not 
required to, take evidence concerning the issues of remedy, the public 
interest, and bonding by respondents under section 337 (e)(1), (f)(1), 
and (j)(3) of the Tariff Act of 1930.


Sec. 210.63  Proposed findings and conclusions and briefs.

    The administrative law judge shall determine whether and, if so, to 
what extent the parties shall be permitted to file proposed findings of 
fact, proposed conclusions of law, or briefs under Sec. 210.40 
concerning the issues involved in adjudication of the motion for 
temporary relief.


Sec. 210.64  Interlocutory appeals.

    There will be no interlocutory appeals to the Commission under 
Sec. 210.24 on any matter connected with a motion for temporary relief 
that is decided by an administrative law judge prior to the issuance of 
the initial determination on the motion for temporary relief.


Sec. 210.65  Certification of the record.

    When the administrative law judge issues an initial determination 
concerning temporary relief pursuant to Sec. 210.66(a), he shall also 
certify to the Commission the record upon which the initial 
determination is based.


Sec. 210.66  Initial determination concerning temporary relief; 
Commission action thereon.

    (a) On or before the 70th day after publication of the notice of 
investigation in an ordinary investigation, or on or before the 120th 
day after such publication in a ``more complicated'' investigation, the 
administrative law judge will issue an initial determination concerning 
the issues listed in Secs. 210.52 and 210.59. If the 70th day or the 
120th day is a Saturday, Sunday, or Federal holiday, the initial 
determination must be received in the Office of the Secretary no later 
than 12:00 noon on the first business day after the 70-day or 120-day 
deadline. The initial determination may, but is not required to, 
address the issues of remedy, the public interest, and bonding by the 
respondents pursuant under sections 337 (e)(1), (f)(1), and (j)(3) of 
the Tariff Act of 1930.
    (b) If the initial determination on temporary relief is issued on 
the 70-day or 120-day deadline imposed in paragraph (a) of this 
section, the initial determination will become the Commission's 
determination 20 calendar days after issuance thereof in an ordinary 
case, and 30 calendar days after issuance in a ``more complicated'' 
investigation, unless the Commission modifies, reverses, or sets aside 
the initial determination in whole or part within that period. If the 
initial determination on temporary relief is issued before the 70-day 
or 120-day deadline imposed in paragraph (a) of this section, the 
Commission will add the extra time to the 20-day or 30-day deadline to 
which it would otherwise have been held. In computing the deadlines 
imposed by this paragraph, intermediary Saturdays, Sundays, and Federal 
holidays shall be included. If the last day of the period is a 
Saturday, Sunday, or Federal holiday as defined in Sec. 201.14(a) of 
this chapter, the effective date of the initial determination shall be 
extended to the next business day.
    (c) The Commission will not modify, reverse, or set aside an 
initial determination concerning temporary relief unless the Commission 
finds that a finding of material fact is clearly erroneous, that the 
initial determination contains an error of law, or that there is a 
policy matter warranting discussion by the Commission. All parties may 
file written comments concerning any clear error of material fact, 
error of law, or policy matter warranting such action by the 
Commission. Such comments must be limited to 35 pages in an ordinary 
investigation and 45 pages in a ``more complicated'' investigation. The 
comments must be filed no later than seven calendar days after issuance 
of the initial determination in an ordinary case and 10 calendar days 
after issuance of the initial determination in a ``more complicated'' 
investigation. In computing the aforesaid 7-day and 10-day deadlines, 
intermediary Saturdays, Sundays, and Federal holidays shall be 
included. If the initial determination is issued on a Friday, however, 
the filing deadline for comments shall be measured from the first 
business day after issuance. If the last day of the filing period is a 
Saturday, Sunday, or Federal holiday as defined in Sec. 201.14(a) of 
this chapter, the filing deadline shall be extended to the next 
business day. The parties shall serve their comments on other parties 
by messenger, courier, express mail, or equivalent means.
    (d) Nonconfidential copies of the initial determination also will 
be served on other agencies listed in Sec. 210.50(a)(2). Those agencies 
will be given 10 calendar days to file comments on the initial 
determination.
    (e) (1) Each party may file a response to each set of comments 
filed by another party. All such reply comments must be filed within 10 
calendar days after issuance of the initial determination in an 
ordinary case and within 14 calendar days after issuance of an initial 
determination in a ``more complicated'' investigation. The deadlines 
for filing reply comments shall be computed in the manner described in 
paragraph (c) of this section, except that in no case shall a party 
have fewer than two calendar days to file reply comments.
    (2) Each set of reply comments will be limited to 20 pages in an 
ordinary investigation and 30 pages in a ``more complicated'' case.
    (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, will be published in the 
Federal Register, and will be served on the parties. 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 a 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.


Sec. 210.67  Remedy, the public interest, and bonding by respondents.

    The procedure for arriving at the Commission's determination of the 
issues of the appropriate form of temporary relief, whether the public 
interest factors enumerated in the statute preclude such relief, and 
the amount of the bond under which respondents' merchandise will be 
permitted to enter the United States during the pendency of any 
temporary relief order issued by the Commission, is as follows:
    (a) While the motion for temporary relief is before the 
administrative law judge, he may compel discovery on matters relating 
to remedy, the public interest, and bonding by respondents (as provided 
in Sec. 210.61). The administrative law judge also is authorized to 
make findings pertaining to the public interest, as provided in 
Sec. 210.66(a). Such findings may be superseded, however, by Commission 
findings on that issue as provided in paragraph (c) of this section.
    (b) On the 65th day after institution in an ordinary case or on the 
110th day after institution in a ``more complicated'' investigation, 
all parties shall file written submissions with the Commission 
addressing those issues. The submissions shall refer to information and 
evidence already on the record, but additional information and evidence 
germane to the issues of appropriate relief, the statutory public 
interest factors, and bonding by respondents may be provided along with 
the parties' submissions. Pursuant to Sec. 210.50(a)(4), interested 
persons may also file written comments, on the aforesaid dates, 
concerning the issues of remedy, the public interest, and bonding by 
the respondents.
    (c) On or before the 90-day or 150-day statutory deadline for 
determining whether to order temporary relief under section 337 (e)(1) 
and/or (f)(1) of the Tariff Act of 1930, the Commission will determine 
what relief is appropriate in light of any violation that appears to 
exist, whether the public interest factors enumerated in the statute 
preclude the issuance of such relief, and the amount of the bond under 
which the respondents' merchandise will be permitted to enter the 
United States during the pendency of any temporary relief order issued 
by the Commission. In the event that Commission's findings on the 
public interest pursuant to this paragraph are inconsistent with 
findings made by the administrative law judge in the initial 
determination pursuant to Sec. 210.66(a), the Commission's findings are 
controlling.


Sec. 210.68  Complainant's temporary relief bond.

    (a) In every investigation under this part involving a motion for 
temporary relief, the question of whether the complainant shall be 
required to post a bond as a prerequisite to the issuance of such 
relief shall be addressed by the parties, the presiding administrative 
law judge, and the Commission in the manner described in Secs. 210.52, 
210.59, 210.61, 210.62, and 210.66. If the Commission determines that a 
bond should be required, the bond may consist of one or more of the 
following:
    (1) The surety bond of a surety or guarantee corporation that is 
licensed to do business with the United States in accordance with 31 
U.S.C. 9304-9306 and 31 CFR Parts 223 and 224;
    (2) The surety bond of an individual, a trust, an estate, or a 
partnership, or a corporation, whose solvency and financial 
responsibility will be investigated and verified by the Commission; or
    (3) A certified check, a bank draft, a post office money order, 
cash, a United States bond, a Treasury note, or other Government 
obligation within the meaning of 31 U.S.C. 9301 and 31 CFR Part 225, 
which is owned by the complainant and tendered in lieu of a surety 
bond, pursuant to 31 U.S.C. 9303(c) and 31 CFR Part 225.

The same restrictions and requirements applicable to individual and 
corporate sureties on Customs bonds, which are set forth in 19 CFR Part 
113, shall apply with respect to sureties on bonds filed with the 
Commission by complainants as a prerequisite to a temporary relief 
under section 337 of the Tariff Act of 1930. If the surety is an 
individual, the individual must file an affidavit of the type shown in 
Appendix A to Sec. 210.68. Unless otherwise ordered by the Commission, 
while the bond of the individual surety is in effect, an updated 
affidavit must be filed every four months (computed from the date on 
which the bond was approved by the Secretary or the Commission).
    (b) The bond and accompanying documentation must be submitted to 
the Commission within the time specified in the Commission notice, 
order, determination, or opinion requiring the posting of a bond, or 
within such other time as the Commission may order. If the bond is not 
submitted within the specified period (and an extension of time has not 
been granted), temporary relief will not be issued.
    (c) The corporate or individual surety on a bond or the person 
posting a certified check, a bank draft, a post office money order, 
cash, a United States bond, a Treasury note, or other Government 
obligation in lieu of a surety bond must provide the following 
information on the face of the bond or in the instrument authorizing 
the Government to collect or sell the bond, certified check, bank 
draft, post office money order, cash, United States bond, Treasury 
note, or other Government obligation in response to a Commission order 
requiring forfeiture of the bond pursuant to Sec. 210.70:
    (1) The investigation caption and docket number;
    (2) The names, addresses, and seals (if appropriate) of the 
principal, the surety, the obligee, as well as the ``attorney in fact'' 
and the registered process agent (if applicable) (see Customs Service 
regulations in 19 CFR Part 113 and Treasury Department regulations in 
31 CFR Parts 223, 224, and 225);
    (3) The terms and conditions of the bond obligation, including the 
reason the bond is being posted, the amount of the bond, the effective 
date and duration of the bond (as prescribed by the Commission order, 
notice, determination, or opinion requiring the complainant to post a 
bond); and
    (4) A section at the bottom of the bond or other instrument for the 
date and authorized signature of the Secretary to reflect Commission 
approval of the bond.
    (d) Complainants who wish to post a certified check, a bank draft, 
a post office money order, cash, a United States bond, a Treasury note, 
or other Government obligation in lieu of a surety bond must notify the 
Commission in writing immediately upon receipt of the Commission 
document requiring the posting of a bond, and must contact the 
Secretary to make arrangements for Commission receipt, handling, 
management, and deposit of the certified check, bank draft, post office 
money order, cash, United States bond, Treasury note, or other 
Government obligation tendered in lieu of a surety bond, in accordance 
with 31 U.S.C. Sec. 9303, 31 CFR Parts 202, 206, and 225 and other 
governing Treasury regulations and circular(s). If required by the 
governing Treasury regulations and circular, a certified check, a bank 
draft, a post office money order, cash, a United States bond, a 
Treasury note, or other government obligation tendered in lieu of a 
surety bond may have to be collateralized. See, e.g., 31 CFR 202.6 and 
the appropriate Treasury Circular.

Appendix A to Sec. 210.68 Affidavit by Individual Surety

United States International Trade Commission Affidavit by 
Individual Surety 19 CFR 210.68

----------------------------------------------------------------------
State of

----------------------------------------------------------------------
County

SS:--------------------------------------------------------------------

    I, the undersigned, being duly sworn, depose and say that I am a 
citizen of the United States, and of full age and legally competent; 
that I am not a partner in any business of the principal on the bond 
or bonds on which I appear as surety; and that the information 
herein below furnished is true and complete to the best of my 
knowledge. This affidavit is made to induce the United States 
International Trade Commission to accept me as surety on the bond(s) 
filed or to be filed with the United States International Trade 
Commission pursuant to 19 CFR 210.68. I agree to notify the 
Commission of any transfer or change in any of the assets herein 
enumerated.

----------------------------------------------------------------------
1. Name (First, Middle, Last)

----------------------------------------------------------------------
2. Home Address

----------------------------------------------------------------------
3. Type & Duration of Occupation

----------------------------------------------------------------------
4. Name of Employer (If Self-Employed)

----------------------------------------------------------------------
5. Business Address

----------------------------------------------------------------------
6. Telephone No.

Home-------------------------------------------------------------------

Business---------------------------------------------------------------

    7. The following is a true representation of my assets, 
liabilities, and net worth and does not include any financial 
interest I have in the assets of the principal on the bond(s) on 
which I appear as surety.


a. Fair value of solely owned real estate *...................  ........
b. All mortgages or other encumbrances on the real estate               
 included in Line a...........................................  ........
c. Real estate equity (subtract Line b from Line a)...........  ........
d. Fair value of all solely owned property other than real              
 estate.......................................................  ........
e. Total of the amounts on Lines c and d......................  ........
f. All other liabilities owing or incurred not included in              
 Line b.......................................................  ........
g. Net worth (subtract Line f from Line e)....................  ........
                                                                        


    *Do not include property exempt from execution and sale for any 
reason. Surety's interest in community property may be included if 
not so exempt.
----------------------------------------------------------------------
8. LOCATION AND DESCRIPTION OF REAL ESTATE OF WHICH I AM SOLE OWNER, 
THE VALUE OF WHICH IS IN LINE a, ITEM 7 ABOVE\1\

    Amount of assessed value of above real state for taxation 
purposes:

----------------------------------------------------------------------
9. DESCRIPTION OF PROPERTY INCLUDED IN LINE d, ITEM 7 ABOVE (List 
the value of each category of property separately)\2\

----------------------------------------------------------------------
10. ALL OTHER BONDS ON WHICH I AM SURETY (State character and amount 
of each bond; if none, so state)\3\

----------------------------------------------------------------------
11. SIGNATURE
----------------------------------------------------------------------
12. BOND AND COMMISSION INVESTIGATION TO WHICH THIS AFFIDAVIT 
RELATES

    SUBSCRIBED AND SWORN TO BEFORE ME AS FOLLOWS:
DATE OATH ADMINISTERED
MONTH        DAY        YEAR

CITY-------------------------------------------------------------------
STATE (Or Other Jurisdiction)------------------------------------------

----------------------------------------------------------------------
NAME & TITLE OF OFFICIAL
ADMINISTERING OATH-----------------------------------------------------

SIGNATURE--------------------------------------------------------------

MY COMMISSION EXPIRES--------------------------------------------------

INSTRUCTIONS

    1. Here describe the property by giving the number of the lot 
and square or block, and addition or subdivision, if in a city, and, 
if in the country, after showing state, county, and township, locate 
the property by metes and bounds, or by part of section, township, 
and range, so that it may be identified.
    2. Here describe the property by name so that it can be 
identified--for example ``Fifteen shares of the stock of the 
``National Metropolitan Bank, New York City,'' or ``Am. T. & T. s. 
f.5's 60.''
    3. Here state what other bonds the affiant has already signed as 
surety, giving the name and address of the principal, the date, and 
the amount and character of the bond.


Sec. 210.69  Approval of complainant's temporary relief bond.

    (a) In accordance with 31 U.S.C. Sec. 9304(b), all bonds posted by 
complainants must be approved by the Commission before the temporary 
relief sought by the complainant will be issued. See also 31 U.S.C. 
Sec. 9303(a) and 31 CFR 225.1 and 225.20. The Commission's bond 
approval officer for purposes of those provisions shall be the 
Secretary.
    (b) The bond approval process may entail investigation by the 
Secretary or the Commission's Office of Investigations to determine the 
veracity of all factual information set forth in the bond and the 
accompanying documentation (e.g., powers of attorney), as well as any 
additional verification required by 31 CFR Parts 223, 224, or 225. The 
Secretary may reject a bond on one or more of the following grounds:
    (1) Failure to comply with the instructions in the Commission 
determination, order, or notice directing the complainant to post a 
bond;
    (2) Failure of the surety or the bond to provide information or 
supporting documentation required by the Commission, the Secretary, 
Sec. 210.68 of this part, 31 CFR Parts 223 or 224, or other governing 
statutes, regulations, or Treasury circulars, or because of a 
limitation prescribed in a governing statute, regulation, or circular;
    (3) Failure of an individual surety to execute and file with the 
bond, an affidavit of the type shown in Appendix A to Sec. 210.68, 
which sets forth information about the surety's assets, liabilities, 
net worth, real estate and other property of which the initial surety 
is the sole owner, other bonds on which the individual surety is a 
surety (and which must be updated at 4-month intervals while the bond 
is in effect, measured from the date on which the bond is approved by 
the Secretary on behalf of the Commission or by the Commission);
    (4) Any question about the solvency or financial responsibility of 
the surety, or any question of fraud, misrepresentation, or perjury 
which comes to light as a result of the verification inquiry during the 
bond approval process; and
    (5) Any other reason deemed appropriate by the Secretary.
    (c) If the complainant believes that the Secretary's rejection of 
the bond was erroneous as a matter of law, the complainant may appeal 
the Secretary's rejection of the bond by filing a petition with the 
Commission in the form of a letter to the Chairman, within 10 days 
after service of the rejection letter.
    (d) After the bond is approved and temporary relief is issued, if 
any question concerning the continued solvency of the individual or the 
legality or enforceability of the bond or undertaking develops, the 
Commission may take the following action(s), sua sponte or on motion;
    (1) Revoke the Commission approval of the bond and require 
complainant to post a new bond; or
    (2) Revoke or vacate the temporary remedial order for public 
interest reasons or changed conditions of law or fact (criteria that 
are the basis for modification or rescission of final Commission action 
pursuant to Sec. 210.76(a)(1) and (b)); or
    (3) Notify the Treasury Department if the problem involves a 
corporate surety licensed to do business with the United States under 
31 U.S.C. Secs. 9303-9306 and 31 CFR Parts 223 and 224; or
    (4) Refer the matter to the U.S. Department of Justice if there is 
a suggestion of fraud, perjury, or related conduct.


Sec. 210.70  Forfeiture of complainant's temporary relief bond.

    (a) 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 in whole or part may be 
initiated upon the filing of a motion by a respondent or the Commission 
investigative attorney. Alternatively, such proceedings may be 
initiated by the Commission on its own initiative. A motion by a 
respondent or the Commission investigative attorney should be filed 
within 30 days after the service of the aforesaid Commission 
determination on violation.
    (b) The complainant and any nonmoving party may file a response to 
the motion within 15 days after service of the motion, unless otherwise 
ordered by the presiding administrative law judge.
    (c) A motion for forfeiture 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 consider the following factors:
    (1) The extent to which the Commission has determined that section 
337 of the Tariff Act of 1930 has not been violated;
    (2) Whether the presentation of the motion for temporary relief (or 
the portions thereof corresponding to the portions of the complaint 
that were not sustained on the merits) was justified under the 
standards of conduct articulated in Sec. 210.4(c) and the guidelines in 
Sec. 210.4(d) for determining whether those standards were violated;
    (3) Whether forfeiture would be consistent with the legislative 
intent of the forfeiture authority (which is to provide a 
``disincentive'' to the abuse of temporary relief by complainants);
    (4) Whether forfeiture would be in the public interest; and
    (5) Any other legal, equitable, or policy considerations that are 
relevant to the issue of forfeiture.
    (d) Motions to stay forfeiture proceedings or the effective date of 
a forfeiture order pending the outcome of judicial review of the 
violation determination will not be granted. If the negative violation 
determination supporting the forfeiture order is reversed on judicial 
review, the Secretary will refund the appropriate amount of the 
forfeited bond to the complainant as expeditiously as possible in 
accordance with the governing Treasury procedures and regulations.
    (e) If the investigation is terminated on the basis of a settlement 
agreement or a consent order with no concurrent determination 
concerning the violation of section 337 of the Tariff Act of 1930, 
forfeiture of the complainant's bond will not be ordered.

Subpart I--Enforcement Procedures and Advisory Opinions


Sec. 210.71  Information gathering.

    (a) Power to require information. (1) Whenever the Commission 
issues an exclusion order, the Commission may require any person to 
report facts available to that person that will help the Commission 
assist the U.S. Customs Service in determining whether and to what 
extent there is compliance with the order or whether and to what extent 
the conditions that led to the order are changed. Similarly, whenever 
the Commission issues a cease and desist order or a consent order, it 
may require any person to report facts available to that person that 
will aid the Commission in determining whether and to what extent there 
is compliance with the order or whether and to what extent the 
conditions that led to the order are changed.
    (2) The Commission may also include provisions that exercise any 
other information-gathering power available to the Commission by law, 
regardless of whether the order at issue is an exclusion order, a cease 
and desist order, or a consent order. The Commission may at any time 
request the cooperation of any person or agency in supplying it with 
information that will aid the Commission or the U.S. Customs Service in 
making the determinations described in paragraph (a)(1) of this 
section.
    (b) Form and detail of reports. Reports under paragraph (a) of this 
section are to be in writing, under oath, and in such detail and in 
such form as the Commission prescribes.
    (c) Power to enforce informational requirements. Terms and 
conditions of exclusion orders, cease and desist orders, and consent 
orders for reporting and information gathering shall be enforceable by 
the Commission by a civil action under 19 U.S.C. Sec. 1333, or, at the 
Commission's discretion, in the same manner as any other provision of 
the exclusion order, cease and desist order, or consent order is 
enforced.
    (d) Term of reporting requirement. An exclusion order, cease and 
desist order, or consent order may provide for the frequency of 
reporting or information gathering and the date on which these 
activities are to terminate. If no date for termination is provided, 
reporting and information gathering shall terminate when the exclusion 
order, cease and desist order, or consent order or any amendment to it 
expires by its own terms or is terminated.


Sec. 210.72  Confidentiality of information.

    Confidential information (as defined in Sec. 201.6(a) of this 
chapter) that is provided to the Commission pursuant to exclusion 
order, cease and desist order, or consent order will be received by the 
Commission in confidence. Requests for confidential treatment shall 
comply with Sec. 201.6 of this chapter. The restrictions on disclosure 
and the procedures for handling such information (which are set out in 
Secs. 210.5 and 210.39) shall apply and, in a proceeding under 
Secs. 210.75 or 210.76, the Commission or the presiding administrative 
law judge may, upon motion or sua sponte, issue or continue appropriate 
protective orders.


Sec. 210.73  Review of reports.

    (a) Review to insure compliance. The Commission, through the Office 
of Unfair Import Investigations, will review reports submitted pursuant 
to any exclusion order, cease and desist order, or consent order and 
conduct such further investigation as it deems necessary to insure 
compliance with its orders.
    (b) Extension of time. The Director of the Office of Unfair Import 
Investigations may, for good cause shown, extend the time in which 
reports required by exclusion orders, cease and desist orders, and 
consent orders may be filed. An extension of time within which a report 
may be filed, or the filing of a report that does not evidence full 
compliance with the order, does not in any circumstances suspend or 
relieve a respondent from its obligation under the law with respect to 
compliance with such order.


Sec. 210.74  Modification of reporting requirements.

    (a) Exclusion and cease and desist orders. The Commission may 
modify reporting requirements of exclusion and cease and desist orders 
as necessary:
    (1) To help the Commission assist the U.S. Customs Service in 
ascertaining that there has been compliance with an outstanding 
exclusion order;
    (2) To help the Commission ascertain that there has been compliance 
with a cease and desist order;
    (3) To take account of changed circumstances; or
    (4) To minimize the burden of reporting or informational access.

An order to modify reporting requirements shall identify the reports 
involved and state the reason or reasons for modification. No reporting 
requirement will be suspended during the pendency of such a 
modification unless the Commission so orders. The Commission may, if 
the public interest warrants, announce that a modification of reporting 
is under consideration and ask for comment, but it may also modify any 
reporting requirement at any time without notice, consistent with the 
standards of this section.
    (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 publish a notice 
of any proposed change in the Federal Register, together with the 
reporting requirements to be modified and the reasons therefor, and 
serve notice 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.


Sec. 210.75  Proceedings to enforce exclusion orders, cease and desist 
orders, consent orders, and other Commission orders.

    (a) Informal enforcement proceedings. Informal enforcement 
proceedings may be conducted by the Commission, through the Office of 
Unfair Import Investigations, with respect to any act or omission by 
any person in possible violation of any provision of an exclusion 
order, cease and desist order, or consent order. Such matters may be 
handled by the Commission through correspondence or conference or in 
any other way that the Commission deems appropriate. The Commission may 
issue such orders as it deems appropriate to implement and insure 
compliance with the terms of an exclusion order, cease and desist 
order, or consent order, or any part thereof. Any matter not disposed 
of informally may be made the subject of a formal proceeding pursuant 
to this subpart.
    (b) Formal enforcement proceedings. (1) The Commission may 
institute an enforcement proceeding at the Commission level upon the 
filing by the complainant in the original investigation or his 
successor in interest, by the Office of Unfair Import Investigations, 
or by the Commission of a complaint 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 and a notice of institution published in the Federal 
Register. 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.
    (2) Upon the failure of a respondent to file and serve a response 
within the time and in the manner prescribed herein the Commission, in 
its discretion, may find the facts alleged in the complaint to be true 
and take such action as may be appropriate without notice or hearing, 
or, in its discretion, proceed without notice to take evidence on the 
allegations set forth in the complaint, provided that the Commission 
(or administrative law judge, if one is appointed) may permit late 
filings of an answer for good cause shown.
    (3) The Commission, in the course of a formal enforcement 
proceeding under this section may hold a public hearing and afford the 
parties to the enforcement proceeding the opportunity to appear and be 
heard. The hearing will not be subject to sections 554, 555, 556, 557, 
and 702 of title 5 of the United States Code. The Commission may 
delegate the hearing to the chief administrative law judge for 
designation of a presiding administrative law judge, who shall certify 
an initial determination to the Commission. That initial determination 
shall become the determination of the Commission 90 days after the date 
of service of the initial determination, unless the Commission, within 
90 days after the date of such service shall have ordered review of the 
initial determination on certain issues therein, or by order shall have 
changed the effective date of the initial determination.
    (4) Upon conclusion of a formal enforcement proceeding under this 
section, the Commission may:
    (i) Modify a cease and desist order, consent order, and/or 
exclusion order in any manner necessary to prevent the unfair practices 
that were originally the basis for issuing such order;
    (ii) Bring civil actions in a United States district court pursuant 
to paragraph (c) of this section (and section 337(f)(2) of the Tariff 
Act of 1930) requesting the imposition of a civil penalty or the 
issuance of injunctions incorporating the relief sought by the 
Commission; or
    (iii) Revoke the cease and desist order or consent order and direct 
that the articles concerned be excluded from entry into the United 
States.
    (5) Prior to effecting any modification, revocation, or exclusion 
under this section, the Commission shall consider the effect of such 
action 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.
    (6) In lieu of or in addition to taking the action provided for in 
paragraph (b)(1) of this section, the Commission may issue, pursuant to 
section 337(i) of the Tariff Act of 1930, an order providing that any 
article imported in violation of the provisions of section 337 of the 
Tariff Act of 1930 and an outstanding final exclusion order issued 
pursuant to section 337(d) of the Tariff Act of 1930 be seized and 
forfeited to the United States, if the following conditions are 
satisfied:
    (i) The owner, importer, or consignee of the article (or the agent 
of such person) previously attempted to import the article into the 
United States;
    (ii) The article previously was denied entry into the United States 
by reason of a final exclusion order; and
    (iii) Upon such previous denial of entry, the Secretary of the 
Treasury provided the owner, importer, or consignee of the article (or 
the agent of such person) with written notice of the aforesaid 
exclusion order and the fact that seizure and forfeiture would result 
from any further attempt to import the article into the United States.
    (c) Court enforcement. To enforce an exclusion order, a cease and 
desist order, a consent order, or a sanctions order, the Commission may 
initiate a civil action in the U.S. district court pursuant to section 
337(f)(2) of the Tariff Act of 1930, requesting the imposition of such 
civil penalty or the issuance of such injunctions as the Commission 
deems necessary to enforce its orders and protect the public interest. 
The Commission may initiate a proceeding to obtain judicial enforcement 
without any other type of proceeding otherwise available under section 
337 or this subpart or without prior notice to any person, except as 
required by the court in which the civil action is initiated.


Sec. 210.76  Modification or rescission of exclusion orders, cease and 
desist orders, and consent orders.

    (a) Petitions for modification or rescission of exclusion orders, 
cease and desist orders, and consent orders. (1) Whenever any person 
believes that changed conditions of fact or law, or the public 
interest, require that an exclusion order, cease and desist order, or 
consent order be modified or set aside, in whole or in part, such 
person may file with the Commission a petition requesting such relief. 
The Commission may also on its own initiative consider such action. The 
petition shall state the changes desired and the changed circumstances 
warranting such action, shall include materials and argument in support 
thereof, and shall be served on all parties to the investigation in 
which the exclusion order, cease and desist order, or consent order was 
issued. Any person may file an opposition to the petition within 10 
days of service of the petition.
    (2) If the petitioner previously has been found by the Commission 
to be in violation of section 337 of the Tariff Act of 1930 and if its 
petition requests a Commission determination that the petitioner is no 
longer in violation of that section or requests modification or 
rescission of an order issued pursuant to section 337 (d), (e), (f), 
(g), or (i) of the Tariff Act of 1930, the burden of proof in any 
proceeding initiated in response to the petition pursuant to paragraph 
(b) of this section shall be on the petitioner. In accordance with 
section 337(k)(2) of the Tariff Act, relief may be granted by the 
Commission with respect to such petition on the basis of new evidence 
or evidence that could not have been presented at the prior proceeding 
or on grounds that would permit relief from a judgment or order under 
the Federal Rules of Civil Procedure.
    (b) Commission action upon receipt of petition. The Commission may 
thereafter institute a proceeding to modify or rescind the exclusion 
order, cease and desist order, or consent order by publishing a notice 
of the proceeding in the Federal Register. The Commission may hold a 
public hearing and afford interested persons the opportunity to appear 
and be heard. After consideration of the petition, any responses 
thereto, and any information placed on the record at a public hearing 
or otherwise, the Commission shall take such action as it deems 
appropriate. The Commission may delegate any hearing under this section 
to the chief administrative law judge for designation of a presiding 
administrative law judge, who shall certify a recommended determination 
to the Commission.


Sec. 210.77  Temporary emergency action.

    (a) Whenever the Commission determines, pending a formal 
enforcement proceeding under Sec. 210.75(b), that without immediate 
action a violation of an exclusion order, cease and desist order, or 
consent order will occur and that subsequent action by the Commission 
would not adequately repair substantial harm caused by such violation, 
the Commission may immediately and without hearing or notice modify or 
revoke such order and, if it is revoked, replace the order with an 
appropriate exclusion order.
    (b) Prior to taking any action under this section, the Commission 
shall consider the effect of such action 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. The Commission shall, if it has not already done so, 
institute a formal enforcement proceeding under Sec. 210.75(b) at the 
time of taking action under this section or as soon as possible 
thereafter, in order to give the alleged violator and other interested 
parties a full opportunity to present information and views regarding 
the continuation, modification, or revocation of Commission action 
taken under this section.


Sec. 210.78  Notice of enforcement action to Government agencies.

    (a) Consultation. The Commission may consult with or seek 
information from any Government agency when taking any action under 
this subpart.
    (b) Notification of Treasury. The Commission shall notify the 
Secretary of the Treasury of any action under this subpart that results 
in a permanent or temporary exclusion of articles from entry, or the 
revocation of an order to such effect, or the issuance of an order 
compelling seizure and forfeiture of imported articles.


Sec. 210.79  Advisory opinions.

    (a) Advisory opinions. Upon request of any person, the Commission 
may, upon such investigation as it deems necessary, issue an advisory 
opinion as to whether the person's proposed course of action or conduct 
would violate a Commission exclusion order, cease and desist order, or 
consent order. The Commission will consider whether the issuance of 
such an advisory opinion would facilitate the enforcement of section 
337 of the Tariff Act of 1930, would be in the public interest, and 
would benefit consumers and competitive conditions in the United 
States, and whether the person has a compelling business need for the 
advice and has framed his request as fully and accurately as possible. 
Advisory opinion proceedings are not subject to sections 554, 555, 556, 
557, and 702 of title 5 of the United States Code.
    (b) Revocation. The Commission may at any time reconsider any 
advice given under this section and, where the public interest 
requires, revoke its prior advice. In such event the person will be 
given notice of the Commission's intent to revoke as well as an 
opportunity to submit its views to the Commission. The Commission will 
not proceed against a person for violation of an exclusion order, cease 
and desist order, or consent order with respect to any action that was 
taken in good faith reliance upon the Commission's advice under this 
section, if all relevant facts were accurately presented to the 
Commission and such action was promptly discontinued upon notification 
of revocation of the Commission's advice.

PART 211--[REMOVED]

    Issued: July 14, 1994.

    By Order of The Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 94-17643 Filed 7-29-94; 8:45 am]
BILLING CODE 7020-02-P