[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.
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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.
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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.
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\2\See 53 FR 33043 (Aug. 29, 1988) and 53 FR 49118 (Dec. 6,
1988).
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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)
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\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.
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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.
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\6\146 Federal Rules Decisions 401-728 (1993).
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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
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\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.
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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.
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\1\0See 19 U.S.C. Sec. 1337(g)(1).
\1\1See 19 U.S.C. Sec. 1337(h).
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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.
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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
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\1\3 See the section-by-section analysis of the proposed rules,
which appeared in 57 FR at 52830-52864.
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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
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\1\4Id.
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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.
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\1\5See 19 CFR 201.8(e) (1993).
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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.
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\1\619 U.S.C. Sec. 1337(h).
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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.
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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
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\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.
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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).
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\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.
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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.)
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\20\FRCP 11(c)(2), as amended; 146 F.R.D. at 422-423. See also
146 F.R.D. at 587-588.
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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\
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\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.
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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.
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Furthermore, the sanctions in such a case must be limited to a
penalty payable to the Commission.\24\
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\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.
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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.
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\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.
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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\
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\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.
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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).)
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\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.
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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
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\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.
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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
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\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).
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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\
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\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).
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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\
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\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.
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\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
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\4\1See 146 F.R.D. at 442-443 and 641.
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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.
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\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
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\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
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\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.
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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
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\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.
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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
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\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
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\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.
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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\
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\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\
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\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.
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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\
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\58\Id.
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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).
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\59\See 19 U.S.C. Sec. 1337(c).
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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\
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\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.
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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\
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\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).
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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).
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\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.
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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.)
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\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).
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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\
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\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.
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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
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\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.
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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.
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\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).
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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
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\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.
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\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).
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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\
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\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).
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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.
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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\
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\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).
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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