[Federal Register Volume 59, Number 250 (Friday, December 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-32125]


[[Page Unknown]]

[Federal Register: December 30, 1994]


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INTERNATIONAL TRADE COMMISSION

19 CFR Part 210

 

Procedures for Investigations and Related Proceedings Concerning 
Unfair Practices in Import Trade

AGENCY: U.S. International Trade Commission.

ACTION: Interim rules and request for comment.

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SUMMARY: The Commission is amending certain rules of practice and 
procedure to implement amendments to section 337 of the Tariff Act of 
1930 enacted by Congress as part of the Uruguay Round Agreements Act. 
By implementing the law, the rules bring U.S. procedures into 
conformity with national treatment obligations under GATT, while 
providing for the effective enforcement of intellectual property rights 
at the border.

DATES: The effective date of the interim rules is January 1, 1995, the 
date on which the World Trade Organization (WTO) Agreement enters into 
force with respect to the United States, unless the United States Trade 
Representative announces prior to that date that the WTO Agreement will 
not enter into force on that date. Should the effective date not be 
January 1, 1995, the Commission will publish notice to such effect in 
the Federal Register.
    These interim rules apply to section 337 complaints filed on or 
after the effective date.
    Comments on these interim rules will be considered if received by 
March 30, 1995.

ADDRESSES: A signed original and 14 copies of each set of comments, 
along with a cover letter addressed to Donna R. Koehnke, Secretary, 
should be sent to the U.S. International Trade Commission, Office of 
the Secretary, room 112, 500 E Street SW., Washington, DC 20436.

FOR FURTHER INFORMATION CONTACT: Paul A. Newhouse, Esq., Office of the 
Administrative Law Judges, U.S. International Trade Commission, 
telephone 202-205-2699. Hearing-impaired individuals can obtain 
information on the final rules by contacting the Commission's TDD 
terminal at 202-205-1810.

SUPPLEMENTARY INFORMATION:

Background

    In 1989, the General Agreement on Tariffs and Trade (GATT) adopted 
a report finding that USITC procedures in investigations under section 
337 of the Tariff Act of 1930 violated GATT ``national treatment'' 
rules. The report listed several ways in which imported goods are 
treated less favorably in Commission investigations than domestic goods 
are treated in district court infringement cases. In the Uruguay Round 
Agreements Act, Congress amended section 337 to bring USITC procedures 
into compliance with the GATT ``national treatment'' rules. See H. Rep. 
No. 103-826, 103d Cong., 2d Sess. 140-142 (1994). The amendments, and 
the interim rule revisions that follow, focus on changes in four areas 
that respond to GATT criticisms:

    time limits for concluding an investigation have been eliminated 
and a procedure for establishing a ``target date'' for completion 
has been adopted instead;
    respondents are given the opportunity to stay parallel actions 
in district court while a Commission investigation is proceeding; 
the Commission's record may be used subsequently in the district 
court;
    limitations are placed on the Commission's ability to issue 
``general'' exclusion orders; and
    respondents are permitted to file counterclaims at the 
Commission; these claims will be heard by a district court, but the 
same subject matter may be considered as part of an affirmative 
defense at the Commission.

    Other amendments bring Commission practice into closer conformity 
with district court practice with respect to bonding requirements and 
the deference accorded to arbitration agreements.

The Procedure for Adopting Interim Rules

    The URAA was enacted on December 8, 1994. This legislation contains 
provisions which, inter alia, amend section 337 of the Tariff Act of 
1930 (19 U.S.C. 1337). The Commission's rules concerning Section 337 
practice and procedure need to be amended to conform to the new 
legislation.
    Commission rules to implement new legislation ordinarily are 
promulgated in accordance with the rulemaking provisions of section 553 
of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.), which 
entails the following steps: (1) Publication of a notice of proposed 
rulemaking; (2) solicitation of public comment on the proposed rules; 
(3) Commission review of such comments prior to developing final rules; 
and (4) publication of the final rules thirty days prior to their 
effective date. See 5 U.S.C. 553. That procedure could not be utilized 
in this instance because the new legislation was enacted on December 8, 
1994, and will become effective, with respect to the amendments to 
section 337 of the Act, on January 1, 1995, the date on which the WTO 
Agreement enters into force with respect to the United States, unless 
the United States Trade Representative announces prior to that date 
that the WTO Agreement will not enter into force on that date. These 
interim rules apply to section 337 complaints filed on or after the 
effective date. It was consequently not possible to complete the 
section 553 rulemaking procedure prior to the effective date of the new 
legislation.
    The Commission thus determined to adopt interim rules that will go 
into effect when the provisions of the URAA amending section 337 become 
effective and will remain in effect until the Commission can adopt 
final rules promulgated in accordance with the usual notice, comment, 
and advance publication procedure.
    The Commission's authority to adopt interim rules without following 
all steps listed in section 553 of the APA is derived from three 
sources: (1) Section 335 of the Act (19 U.S.C. 1335); (2) section 103 
of the URAA and the Statement of Administrative Action approved by the 
URAA; and (3) provisions of section 553 of the APA which allow an 
agency to dispense with various steps in the prescribed rulemaking 
procedure under certain circumstances.
    Section 335 of the Act authorizes the Commission ``to adopt such 
reasonable procedures and rules and regulations as it deems necessary 
to carry out its functions and duties.'' 19 U.S.C. 1335. Similarly, 
section 103(a) of the URAA authorizes federal agencies to ``issue such 
regulations as may be necessary to ensure that any provision of this 
Act, or amendment made by this Act, that takes effect on the date [of] 
any of the Uruguay Round Agreements entered into force with respect to 
the United States is appropriately implemented on such date,'' and 
section 103(b) of the URAA directs that ``[a]ny interim regulations 
necessary or appropriate to carry out any action proposed in the 
statement of administrative action approved under section 101 [of the 
URAA] to implement an agreement described in section 101(d) (7), (12), 
or (13) [of the URAA] be issued not later than 1 year after the date on 
which the agreement enters into force with respect to the United 
States.''
    The Commission determined that the need for interim rules is clear 
in this instance. The Commission noted that the new legislation alters 
section 337 practice and procedure and that the existing Commission 
rules do not encompass certain procedures required by the new 
legislation. The Commission found that rulemaking was essential for the 
orderly administration of section 337 as amended by the new 
legislation. Furthermore, since the legislation was to become effective 
very shortly after enactment, the Commission concluded that it was 
imperative that implementing rules be in place on the effective date of 
the new statute.
    The Commission noted that an agency may dispense with publication 
of a notice of proposed rulemaking when the following circumstances 
exist: (1) The proposed rules are interpretive rules, general 
statements of policy, or rules of agency organization, procedure or 
practice; or (2) the agency for good cause finds that notice and public 
procedure thereon are impracticable, unnecessary, or contrary to the 
public interest, and that finding (and the reasons therefor) are 
incorporated into the rules adopted by the agency. 5 U.S.C. 553(b). An 
agency may also dispense with the publication of a notice of final 
rules thirty days prior to their effective date if (1) the rules are 
interpretive rules of statements of policy or (2) the agency finds that 
``good cause'' exists for not meeting the advance publication 
requirement and that finding is published along with the rule 5 U.S.C. 
553(d)(3).
    In this instance, the Commission determined that the requisite 
circumstances existed for dispensing with the notice, comment, and 
advance publication procedure that ordinarily precedes the adoption of 
Commission rules. For purposes of invoking the section 553(b) exemption 
from publishing a notice of proposed rulemaking which solicits public 
comment, the Commission found that (1) the interim rules are ``agency 
rules of procedure or practice''; and (2) since the new legislation is 
projected to become effective very shortly after enactment, and the 
time or fact of enactment could not be predicted in advance, it clearly 
would be ``impracticable'' for the Commission to comply with the usual 
notice, comment, and advance publication procedure. For the purpose of 
invoking the section 553(d)(3) exemption from publishing advance notice 
of the interim rules thirty days prior to their effective date, the 
Commission found that the fact that the new legislation is expected to 
become effective very shortly after enactment made such advance 
publication impossible and constituted ``good cause'' for the 
Commission not to comply with that requirement.
    The Commission recognizes that interim regulations should not 
respond to anything more than the exigencies created by the new 
legislation. Having been promulgated in response to exigencies created 
by the new legislation, each interim rule accordingly comes under one 
or more of the following categories: (1) Revision of a pre-existing 
rule that conflicted with the new legislation; (2) a technical 
amendment to make a pre-existing rule conform to the language of the 
new legislation; (3) rewording of a pre-existing rule to avoid 
confusion about how the rule is to be applied in light of the new 
legislation; or (4) a new rule covering a matter provided for in the 
new legislation but not covered by a pre-existing rule. More 
comprehensive final rules will be issued at a later date in accordance 
with the usual notice, public comment, and advance publication 
procedure.
    Because the interim regulations merely respond to exigencies 
created by the new legislation, the Commission has further determined 
that they do not meet the criteria described in section 3(f) of 
Executive Order 12866 (58 FR 51735, Oct. 4, 1993), and thus do not 
constitute a significant regulatory action for purposes of the EO. In 
accordance with the Regulatory Flexibility Act (5 U.S.C. 601 note), the 
Commission hereby certifies pursuant to 5 U.S.C. 605(b) that the rules 
set forth in this notice are not likely to have a significant impact on 
a substantial number of small business entities. In any event, the 
Regulatory Flexibility Act is inapplicable to this rulemaking because 
it is not one in which a notice of proposed rulemaking is required 
under 5 U.S.C. 553(b).

Section-By-Section Analysis of the Interim Rules

Subpart A--Rules of General Applicability

Section 210.3

    The definition of ``investigation'' is revised to eliminate a 
reference to designating the permanent relief phase of an investigation 
``more complicated.'' See discussion of Sec. 210.22 below.

Section 210.4

    Paragraph (d)(2)(iii)(B) has been revised to indicate that a 
termination based on an arbitration agreement joins terminations based 
on settlement agreements and consent order agreements in a category of 
cases in which monetary sanctions may be imposed on the initiative of 
the administrative law judge or the Commission.

Section 210.5

    Paragraph (b) is revised to conform to amended 19 U.S.C. 
1337(n)(2), which clarifies the list of government officers and 
employees who may have access to confidential business information.
    A new paragraph (c) is added to alert the reader to the possibility 
that confidential business information may be transmitted to a federal 
district court, subject to such protective order as the district court 
determines necessary. This result might occur in a limited class of 
cases because of newly-enacted 28 U.S.C. 1659. Past Commission practice 
has been to permit the transfer of confidential business information to 
another court only with permission of the supplier of the information. 
Particularly where the supplier is a third party who is involved in 
neither the Commission investigation nor the district court case, it is 
important that the supplier be made aware that treatment of 
confidential information would be governed by the district court's 
protective order and not that of the Commission following transmittal 
of the record under this provision. It is expected that future 
protective orders will refer to this rule and the similar provision in 
Sec. 210.39(b) to assure that all suppliers of confidential business 
information are aware of this possibility.
    The remaining two paragraphs of this section are redesignated (d) 
and (e).

Subpart C--Pleadings

Section 210.14

    A new paragraph (e) is added to implement the amendment to 19 
U.S.C. 1337(c) with regard to counterclaims. The rule requires that 
counterclaims be filed not later than ten business days before the 
commencement of the evidentiary hearing. This requirement should 
provide a respondent adequate discovery time to identify potential 
counterclaims while avoiding the distraction that might occur if 
counterclaims could be filed during (or after) the evidentiary hearing. 
For reasons of clarity, the rule requires counterclaims to be filed in 
a separate document.
    The statutory amendment makes clear that the new procedures with 
respect to counterclaims do not affect the ability of a respondent to 
present all legal or equitable defenses that may be available to it in 
a section 337 investigation. Action on the counterclaim will not delay 
or affect the Commission's proceeding. The Commission is not precluded 
from considering judicial rulings on counterclaims as part of the 
Commission's consideration of the effect of a remedial order on the 
public interest. See H.R. Rep. No. 103-826, 103d Cong., 2d Sess. 141 
(1994).

Subpart D--Motions

Section 210.16

    Paragraph (c)(2) is revised to include by reference the 
requirements added to Sec. 210.50(c) below with regard to criteria that 
must be considered by the Commission before issuing a general exclusion 
order.

Section 210.21

    A new paragraph (d) is added to implement the amendment to 19 
U.S.C. 1337(c) that permits the Commission to terminate an 
investigation on the basis of an agreement between the private parties 
to present the matter for arbitration, as well as the traditional 
settlement agreement. The procedures to be followed with respect to a 
motion to terminate on the basis of an arbitration agreement are 
similar to those pertaining to settlement agreements under paragraph 
(b) of this section.
    Paragraph (a)(2) is revised to include a reference to the new 
paragraph (d), and the previous paragraph (d) is redesignated (e).

Section 210.22

    Amendments to 19 U.S.C. 1337(b) eliminated time limits for 
concluding the permanent relief phase of an investigation under section 
337. The provision for a ``more complicated'' designation resulting in 
an 18-month deadline was eliminated. Instead, the Commission is 
directed to establish a ``target date'' in each investigation. The 
procedure for establishing a target date is discussed with respect to 
Sec. 210.51 below.
    This section is amended by deleting paragraph (b) with respect to a 
``more complicated'' designation of the permanent relief phase of an 
investigation. The previous paragraph (c) is redesignated (b) and is 
otherwise unchanged. This paragraph deals with declaring the temporary 
relief phase of an investigation ``more complicated,'' a procedure that 
was unchanged by the statutory amendments.

Section 210.23

    This section is revised to reflect amendments to 19 U.S.C. 
1337(b)(1), which eliminate the authority of the Commission to suspend 
an investigation ``because of proceedings in a court or agency of the 
United States involving similar questions concerning the subject 
matter'' of the investigation. The Commission retains the authority to 
suspend an investigation pending review by the Department of Commerce 
of possible antidumping or countervailing duty matters referred to the 
Department of Commerce by the Commission pursuant to 19 U.S.C. 
1337(b)(3), and the rule is revised to reflect this retained authority.
    The need for an investigation to be suspended no longer exists 
insofar as the statutory deadline for concluding the permanent relief 
phase has been eliminated. Circumstances that would have warranted 
suspension under the old rules may warrant an extension of the target 
date for completing the investigation under these amendments. With 
respect to the temporary relief phase of an investigation, however, the 
elimination of authority to suspend is significant, because the strict 
statutory deadlines for deciding petitions for temporary relief have 
been retained. Temporary relief proceedings now must proceed to 
completion regardless of concurrent parallel proceedings in other 
courts or agencies (except for the rare proceeding at the Department of 
Commerce, referred to in the preceding paragraph). If a complainant 
pursues a motion for temporary relief under circumstances that would 
have resulted in suspension under the Commission's prior practice, 
there may be a basis for requiring a more substantial bond from the 
complainant before temporary relief is ordered.

Section 210.24

    Paragraph (a)(2) is deleted because ``more complicated'' 
designations have been eliminated with respect to permanent relief. 
Paragraph (a)(3) is redesignated (a)(2).
    Paragraph (b)(2) is revised to reflect the renumbering of the 
paragraphs in Sec. 210.5.

Subpart F--Prehearing Conferences and Hearings

Section 210.39

    A new paragraph (b) is added and the succeeding paragraphs are 
redesignated. The addition outlines the circumstances in which the 
Commission's record, including the in camera record, may be transmitted 
to a federal district court, subject to such protective order as the 
district court determines necessary. As in Sec. 210.5, discussed above, 
this rule alerts the reader that treatment of confidential business 
information would be governed by the district court's protective order 
following transmittal of the Commission's record to the court.

Subpart G--Determinations and Actions Taken

Section 210.41

    This section is revised to conform the cross-references to amended 
Sec. 210.21.

Section 210.42

    Paragraph (a)(1)(i) is revised to establish new time frames in 
which the initial determination on violation must be filed. If the 
target date for completing the permanent relief phase of the 
investigation is set at 15 months or less, the initial determination is 
to be filed three months before the target date. If the target date is 
more than 15 months, the initial determination is to be filed four 
months before the target date. (The procedure for establishing the 
target date is found in Sec. 210.51, discussed below.)
    Paragraphs (b) and (c) are revised to reflect the amendment of 
Sec. 210.70 to include the return as well as possible forfeiture of a 
complainant's temporary relief bond. Paragraph (c) is further revised 
to include initial determinations that may be issued in two new 
situations: in granting a motion for forfeiture or return of 
respondents' bonds pursuant to Sec. 210.50(d) and in granting a motion 
to set a target date exceeding 15 months from the date of institution 
pursuant to Sec. 210.51(a).
    Paragraph (h)(3) is revised to give initial determinations issued 
pursuant to Sec. 210.50(d)(3) the same status as those issued pursuant 
to Sec. 210.70(c). The effect of the exception expressed in this 
paragraph is to give a 45-day effective date rather than a 30-day 
effective date to initial determinations granting motions for 
forfeiture or return of either complainants' or respondents' bonds.

Section 210.43

    Paragraphs (a)(1) and (d) are revised to refer to initial 
determinations issued under new Sec. 210.50(d) and to put these initial 
determinations on the same footing as those issued under 
Sec. 210.70(c).

Section 210.49

    Paragraph (a) is revised to conform the cross-references to amended 
Sec. 210.21.

Section 210.50

    Paragraph (a)(3) is revised to implement the specific statutory 
direction that the Commission determine the amount of a respondent's 
bond ``sufficient to protect the complainant from any injury.'' 19 
U.S.C. 1337(e) and (j)(3). The Commission expects to construe this 
direction on a case-by-case basis. Language referring to past 
Commission practice in determining the amount of a respondent's bond 
has been deleted.
    Paragraph (b)(2) is revised to conform the cross-references to 
amended Sec. 210.21.
    Paragraph (c) is new and implements the statutory limitations on 
issuance of a general exclusion order found in 19 U.S.C. 1337(d)(2). 
These limitations are consonant with past Commission practice as 
articulated in Certain Airless Paint Spray Pumps and Components 
Thereof, Inv. No. 337-TA-90 (USITC Pub. 1199, Nov. 1981) and cases 
following it. The Commission expects the law in this area to continue 
to develop on a case-by-case basis in view of the new statutory 
language.
    Paragraph (d) is new and implements the statutory requirement that 
the Commission prescribe terms and conditions under which bonds may be 
forfeited. 19 U.S.C. 1337(e)(4) and (j)(3). The terms of this rule are 
essentially similar to those in Sec. 210.70 relating to the forfeiture 
or return of a complainant's temporary relief bond. Both rules 
implement the Congressional mandate that the Commission be guided by 
practice under Rule 65 of the Federal Rules of Civil Procedure with 
respect to forfeiture of a complainant's bond. H.R. Rep. No. 103-826, 
103d Cong., 2d Sess. 142 (1994). Although Federal Rule 65 literally 
applies to bonding by the proponent of temporary relief, its underlying 
rationale is equally applicable to respondents' bonds in section 337 
investigations. ``Practice under Rule 65'' includes all sources of 
authority pertaining to Rule 65 that are generally relied on in the 
practice of law, including (but not limited to) judicial decisions and 
notes of the advisory committee on rules. Treatises and commentary also 
may be considered.

Section 210.51

    Congress amended 19 U.S.C. 1337(b) to eliminate the time limit for 
completing an investigation, but directed that the Commission complete 
an investigation and make its determination ``at the earliest 
practicable time.'' Section 210.51(a) is revised to reflect this change 
and to implement the requirement that the Commission, within 45 days 
after an investigation is instituted, set a target date for completion 
of the investigation. The rule allows the administrative law judge to 
set (and modify) the target date in a final order not subject to review 
as long as the target date does not exceed 15 months from the date of 
institution. Target dates exceeding 15 months are set in initial 
determinations, reviewable by the Commission. The Commission expects 
that most investigations will be concluded within the traditional time 
frame of 12 months or less. Deadlines for various activities pertaining 
to section 337 investigations have been retained in the rules unless 
specifically amended herein.
    Paragraph (c) is revised to reflect the elimination of the 
Commission's authority to suspend an investigation except as set forth 
in Sec. 210.23.

Subpart H--Temporary Relief

Section 210.52

    Paragraph (c) is revised to indicate that the Commission will be 
guided by Rule 65 of the Federal Rules of Civil Procedure in 
determining whether to require a bond as a prerequisite to the issuance 
of temporary relief, as mandated by the legislative history of the 
statutory amendments. H.R. Rep. No. 103-826, 103d Cong., 2d Sess. 142 
(1994). The factors relied upon by the Commission in its past practice 
are deleted from paragraphs (c) and (e), and paragraph (f) is 
redesignated as (e).

Section 210.70

    Paragraph (a) is revised to reflect the statutory change 
authorizing forfeiture of the complainant's temporary relief bond to 
the respondent and to authorize the complainant to file a motion for 
the return of its bond when appropriate.
    Paragraph (c) is revised to indicate that the Commission will be 
guided by practice under Rule 65 of the Federal Rules of Civil 
Procedure in determining whether to require a bond as a prerequisite to 
the issuance of temporary relief, as mandated by the legislative 
history of the statutory amendments. H.R. Rep. No. 103-826, 103d Cong., 
2d Sess. 142 (1994). ``Practice under Rule 65'' includes all sources of 
authority pertaining to Rule 65 that are generally relied on in the 
practice of law, including (but not limited to) judicial decisions and 
notes of the advisory committee on rules. Treatises and commentary also 
may be considered.
    Because forfeiture of a bond posted by a complainant now will be to 
the respondent rather than the government, the provision in the prior 
rule allowing a motion for forfeiture to be made by the Commission 
investigative attorney or by the Commission is deleted. Consistent with 
practice under Rule 65 of the Federal Rules of Civil Procedure, a 
respondent seeking forfeiture would be required to show the costs and 
damages incurred as a result of the imposition of temporary relief. The 
respondent itself is in the best position to make this showing and 
should bear the responsibility of filing a motion for forfeiture of a 
bond when appropriate.
    The former provision precluding a stay of forfeiture proceedings 
pending appeal of the Commission's determination on violation also is 
deleted in view of the statutory change. A stay may or may not be 
appropriate depending on the facts of each case, including the ability 
of a respondent to repay an amount forfeited to it in the event of a 
reversal on appeal.

List of Subjects in 19 CFR Part 210

    Administrative practice and procedure, Business and industry, 
Customs duties and inspection, Imports, Investigations.

    For the reasons set forth in the preamble, 19 CFR Part 210 is 
amended as set forth below.

PART 210--ADJUDICATION AND ENFORCEMENT

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

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

    2. The definition of investigation in Sec. 210.3 is amended by 
revising the fourth sentence to read as follows:


Sec. 210.3  Definitions.

* * * * *
    Investigation * * * An investigation can also involve the 
processing of one or more of the following: A motion to amend the 
complaint and notice of investigation; a motion for temporary relief; a 
motion to designate ``more complicated'' the temporary relief stage of 
the investigation; an interlocutory appeal of an administrative law 
judge's decision on a particular matter; a motion for sanctions for 
abuse of process, abuse of discovery, or failure to make or cooperate 
in discovery, which if granted, would have an impact on the 
adjudication of the merits of the complaint; a petition for 
reconsideration of a final Commission determination; a motion for 
termination of the investigation in whole or part; and procedures 
undertaken in response to a judgment or judicial order issued in an 
appeal of a Commission determination or remedial order issued under 
section 337 of the Tariff Act of 1930. * * *
* * * * *
    3. Section 210.4(d)(2)(iii) is revised to read as follows:


Sec. 210.4  Written submissions; representations; sanctions.

* * * * *
    (d) * * *
    (2) * * *
    (iii) Monetary sanctions may not be imposed on the administrative 
law judge's or the Commission's initiative unless--
    (A) The Commission or the administrative law judge issues an order 
to show cause before the investigation or related proceeding is 
terminated, in whole or in relevant part, as to the party or proposed 
party which is, or whose attorneys are, to be sanctioned; and
    (B) such termination is the result of--
    (1) A motion to withdraw the complaint, motion, or petition that 
was the basis for the investigation or related proceeding;
    (2) A settlement agreement;
    (3) A consent order agreement; or
    (4) An arbitration agreement.
* * * * *
    4. Section 210.5 is amended by redesignating paragraphs (c) and (d) 
as paragraphs (d) and (e), revising paragraphs (b)(2) and (b)(4) and 
adding new paragraph (c) to read as follows:


Sec. 210.5  Confidential business information.

* * * * *
    (b) * * *
    (2) An officer or employee of the Commission who is directly 
concerned with--
    (i) Carrying out or maintaining the records of the investigation or 
related proceeding for which the information was submitted;
    (ii) The administration of a bond posted pursuant to subsection 
(e), (f), or (j) of section 337 of the Tariff Act of 1930;
    (iii) The administration or enforcement of an exclusion order 
issued pursuant to subsection (d), (e), or (g), a cease and desist 
order issued pursuant to subsection (f), or a consent order issued 
pursuant to subsection (c) of section 337 of the Tariff Act of 1930; or
    (iv) Proceedings for the modification or rescission of a temporary 
or permanent order issued under subsection (d), (e), (f), (g), or (i) 
of section 337 of the Tariff Act of 1930, or a consent order issued 
under section 337 of the Tariff Act of 1930;
* * * * *
    (4) An officer or employee of the United States Customs Service who 
is directly involved in administering an exclusion from entry under 
section 337 (d), (e), or (g) of the Tariff Act of 1930 resulting from 
the investigation or related proceeding in connection with which the 
information was submitted.
    (c) Transmission of certain records to district court. 
Notwithstanding paragraph (b) of this section, confidential business 
information may be transmitted to a district court and be admissible in 
a civil action, subject to such protective order as the district court 
determines necessary, pursuant to 28 U.S.C. 1659.
* * * * *
    5. Section 210.14 is amended by revising the section heading and by 
adding paragraph (e) to read as follows:


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

* * * * *
    (e) Counterclaims. At any time after institution of the 
investigation, but not later than ten business days before the 
commencement of the evidentiary hearing, a respondent may file a 
counterclaim at the Commission in accordance with section 337(c) of the 
Tariff Act of 1930. Counterclaims shall be filed in a separate 
document. A respondent who files such a counterclaim shall immediately 
file a notice of removal with a United States district court in which 
venue for any of the counterclaims raised by the respondent would exist 
under 28 U.S.C. 1391.
    6. Section 210.16(c)(2) is amended by revising the last sentence to 
read as follows:


Sec. 210.16  Default.

* * * * *
    (c) * * *
    (2) * * * The Commission may issue a general exclusion order 
pursuant to section 337(g)(2) of the Tariff Act of 1930, regardless of 
the source or importer of the articles concerned, provided that a 
violation of section 337 of the Tariff Act of 1930 is established by 
substantial, reliable, and probative evidence, and only after 
considering the aforementioned public interest factors and the 
requirements of Sec. 210.50(c).
    7. Section 210.21 is amended by redesignating paragraph (d) as 
paragraph (e), by revising paragraph (a)(2) and by adding a new 
paragraph (d), to read as follows:


Sec. 210.21  Termination of investigations.

    (a) * * *
    (2) Any party may move at any time for an order to terminate an 
investigation in whole or in part as to any or all respondents on the 
basis of a settlement, a licensing or other agreement, including an 
agreement to present the matter for arbitration, or a consent order, as 
provided in paragraphs (b), (c) and (d) of this section.
* * * * *
    (d) Termination based upon arbitration agreement. Upon filing of a 
motion for termination to the administrative law judge or the 
Commission, a section 337 investigation may be terminated as to one or 
more respondents pursuant to section 337(c) of the Tariff Act of 1930 
on the basis of an agreement between complainant and one or more of the 
respondents to present the matter for arbitration. The motion and a 
copy of the arbitration agreement shall be certified by the 
administrative law judge to the Commission with an initial 
determination if the motion for termination is granted. If the 
agreement or the initial determination contains confidential business 
information, copies of the agreement and initial determination with 
confidential business information deleted shall be certified to the 
Commission with the confidential versions of such documents. The 
Commission shall publish a notice in the Federal Register stating that 
an initial determination has been received, that nonconfidential 
versions of the initial determination and the agreement are available 
for inspection in the Office of the Secretary, and that interested 
persons may submit written comments concerning termination of the 
respondents in question within 10 days of the date of publication of 
the notice in the Federal Register. An order of termination based on an 
arbitration agreement does not constitute a determination as to 
violation of section 337 of the Tariff Act of 1930.
* * * * *
    8. Section 210.22 is amended by removing paragraph (b) and 
redesignating paragraph (c) as paragraph (b).
    9. Section 210.23 is amended by revising the first sentence to read 
as follows:


Sec. 210.23  Suspension of investigation.

    Any party may move to suspend an investigation under this part, 
because of the pendency of proceedings before the Secretary of Commerce 
or the administering authority pursuant to section 337(b)(3) of the 
Tariff Act of 1930. * * *
    10. Section 210.24 is amended by removing paragraph (a)(2), 
redesignating paragraph (a)(3) as (a)(2), and revising paragraphs 
(a)(1) and (b)(2) to read as follows:


Sec. 210.24  Interlocutory appeals.

* * * * *
    (a) * * *
    (1) Requires the disclosure of Commission records or requires the 
appearance of Government officials pursuant to Sec. 210.32(c)(2); or
* * * * *
    (b) * * *
    (2) Applications for review of a ruling by an administrative law 
judge under Sec. 210.5(e)(1) as to whether information designated 
confidential by the supplier is entitled to confidential treatment 
under Sec. 210.5(b) may be allowed only upon request made to the 
administrative law judge and upon determination by the administrative 
law judge in writing, with justification in support thereof.
* * * * *
    11. Section 210.39 is amended by redesignating paragraphs (b) 
through (d) as paragraphs (c) through (e) and adding a new paragraph b 
to read as follows:


Sec. 210.39  In camera treatment of confidential information.

* * * * *
    (b) Transmission of certain Commission records to district court. 
In a civil action involving parties that are also parties to a 
proceeding before the Commission under section 337 of the Tariff Act of 
1930, at the request of a party to the civil action that is also a 
respondent in the proceeding before the Commission, the district court 
may stay, until the determination of the Commission becomes final, 
proceedings in the civil action with respect to any claim that involves 
the same issues involved in the proceeding before the Commission under 
certain conditions. If such a stay is in effect, after the 
determination of the Commission becomes final, the Commission shall 
certify to the district court such portions of the record of its 
proceeding as the district court may request. Notwithstanding paragraph 
(a) of this section, the in camera record may be transmitted to a 
district court and be admissible in a civil action, subject to such 
protective order as the district court determines necessary, pursuant 
to 28 U.S.C. 1659.
* * * * *
    12. Section 210.41 is revised to read as follows:


Sec. 210.41  Termination of investigation.

    Except as provided in Sec. 210.21(b)(2), (c) and (d), an order of 
termination issued by the Commission shall constitute a determination 
of the Commission under Sec. 210.45(c).
    13. Section 210.42 is amended by revising paragraphs (a)(1)(i), 
(b), (c), and (h)(3) to read as follows:


Sec. 210.42  Initial determinations.

    (a)(1)(i) On issues concerning violation of section 337. Unless 
otherwise ordered by the Commission, the administrative law judge shall 
certify the record to the Commission and shall file an initial 
determination on whether there is a violation of section 337 of the 
Tariff Act of 1930 no later than 3 months before the target date set 
pursuant to Sec. 210.51(a) if the target date is 15 months or less from 
the date of institution, and no later than 4 months before the target 
date if the target date is more than 15 months from the date of 
institution.
* * * * *
    (b) On issues concerning temporary relief or forfeiture of 
temporary relief bonds. Certification of the record and the disposition 
of an initial determination concerning a motion for temporary relief 
are governed by Secs. 210.65 and 210.66. The disposition of an initial 
determination concerning possible forfeiture or return of a 
complainant's temporary relief bond, in whole or in part, is governed 
by Sec. 210.70.
    (c) On other matters. The administrative law judge shall grant the 
following types of motions by issuing an initial determination or shall 
deny them by issuing an order: a motion to amend the complaint or 
notice of investigation pursuant to Sec. 210.14(b); a motion for a 
finding of default pursuant to Sec. 210.16; a motion for summary 
determination pursuant to Sec. 210.18; a motion for intervention 
pursuant to Sec. 210.19; a motion for termination pursuant to 
Sec. 210.21; a motion to suspend an investigation pursuant to 
Sec. 210.23; a motion for forfeiture or return of respondents' bonds 
pursuant to Sec. 210.50(d); a motion to set a target date exceeding 15 
months pursuant to Sec. 210.51(a); or a motion for forfeiture or return 
of a complainant's temporary relief bond pursuant to Sec. 210.70.
* * * * *
    (h) * * *
    (3) An initial determination filed pursuant to Sec. 210.42(c) shall 
become the determination of the Commission 30 days after the date of 
service of the initial determination, except as provided in paragraph 
(h)(5) of this section, Sec. 210.50(d)(3) and Sec. 210.70(c), unless 
the Commission, within 30 days after the date of such service shall 
have ordered review of the initial determination or certain issues 
therein or by order has changed the effective date of the initial 
determination.
* * * * *
    14. Section 210.43 is amended by revising the first and last 
sentences of paragraph (a)(1) and the first sentence of paragraph 
(d)(1) to read as follows:


Sec. 210.43  Petitions for review of initial determinations on matters 
other than temporary relief.

    (a) Filing of the petition. (1) Except as provided in paragraph 
(a)(2) of this section, any party to an investigation may request 
Commission review of an initial determination issued under 
Sec. 210.42(a)(1) or (c), Sec. 210.50(d)(3) or Sec. 210.70(c) by filing 
a petition with the Secretary. * * * A petition for review of an 
initial determination issued under Sec. 210.50(d)(3) or Sec. 210.70(c) 
must be filed within 10 days after issuance of the initial 
determination.
* * * * *
    (d) Grant or denial of review. (1) The Commission shall decide 
whether to grant, in whole or in part, a petition for review of an 
initial determination filed pursuant to Sec. 210.42(a)(1), 
Sec. 210.50(d)(3) or Sec. 210.70(c) within 45 days of the service of 
the initial determination on the parties, or by such other time as the 
Commission may order. * * *
* * * * *
    15. Section 210.49 is amended by revising paragraph (a) to read as 
follows:


Sec. 210.49  Implementation of Commission action.

    (a) Service of Commission determination upon the parties. A 
Commission determination pursuant to Sec. 210.45(c) or a termination on 
the basis of a licensing or other agreement, a consent order or an 
arbitration agreement pursuant to Sec. 210.21(b), (c) or (d), 
respectively, shall be served upon each party to the investigation.
* * * * *
    16. Section 210.50 is amended by revising paragraph (a)(3) and the 
first sentence of paragraph (b)(2), and by adding paragraphs (c) and 
(d), to read as follows:


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

    (a) * * *
    (3) Determine the amount of the bond to be posted by a respondent 
pursuant to section 337(j)(3) of the Tariff Act of 1930 following the 
issuance of temporary or permanent relief under section 337(d), (e), 
(f), or (g) of the Tariff Act of 1930, taking into account the 
requirement of section 337(e) and (j)(3) that the amount of the bond be 
sufficient to protect the complainant from any injury.
* * *
    (b)* * *
    (2) Regarding terminations by settlement agreement, consent order, 
or arbitration agreement under Sec. 210.21 (b), (c) or (d), the parties 
may file statements regarding the impact of the proposed termination on 
the public interest, and the administrative law judge may hear 
argument, although no discovery may be compelled with respect to issues 
relating solely to the public interest. * * *
    (c) No general exclusion from entry of articles shall be ordered 
under paragraph (a)(1) of this section unless the Commission determines 
that--
    (1) Such exclusion is necessary to prevent circumvention of an 
exclusion order limited to products of named persons; or
    (2) There is a pattern of violation of section 337 of the Tariff 
Act of 1930 and it is difficult to identify the source of infringing 
products.
    (d) Forfeiture or return of respondents' bonds. (1)(i) If one or 
more respondents posts a bond pursuant to 19 U.S.C. 1337(e)(1) or 
1337(j)(3), proceedings to determine whether a respondent's bond should 
be forfeited to a complainant in whole or part may be initiated upon 
the filing of a motion by a complainant within 30 days after expiration 
of the Presidential review period under 19 U.S.C. 1337(j).
    (ii) A respondent may file a motion for the return of its bond.
    (2) Any nonmoving party may file a response to a motion filed under 
paragraph (d)(1) of this section within 15 days after filing of the 
motion, unless otherwise ordered by the administrative law judge.
    (3) A motion for forfeiture or return of a respondent's bond in 
whole or part will be adjudicated by the administrative law judge in an 
initial determination with a 45-day effective date, which shall be 
subject to review under the provisions of Secs. 210.42 through 210.45. 
In determining whether to grant the motion, the administrative law 
judge and the Commission will be guided by practice under Rule 65 of 
the Federal Rules of Civil Procedure (taking into account that the 
roles of the parties are reversed in this instance).
    (4) If the Commission determines that a respondent's bond should be 
forfeited to a complainant, and if the bond is being held by the 
Secretary of the Treasury, the Commission Secretary shall promptly 
notify the Secretary of the Treasury of the Commission's determination.
    17. Section 210.51 is amended by revising paragraphs (a) and (c) to 
read as follows:


Sec. 210.51  Period for concluding investigation.

    (a) Permanent relief. Within 45 days after institution of the 
investigation, the administrative law judge shall issue an order 
setting a target date for completion of the investigation. If the 
target date does not exceed 15 months from the date of institution of 
the investigation, the order of the administrative law judge shall be 
final and not subject to interlocutory review. If the target date 
exceeds 15 months, the order of the administrative law judge shall 
constitute an initial determination. After the target date has been 
set, it can be modified by the administrative law judge for good cause 
shown before the case is certified to the Commission or by the 
Commission after the case is certified to the Commission.
* * * * *
    (c) Computation of time. In computing the deadlines imposed in 
paragraph (b) of this section, there shall be excluded any period 
during which the investigation is suspended pursuant to Sec. 210.23.
    18. Section 210.52 is amended by removing paragraph (e), 
redesignating paragraph (f) as paragraph (e), and revising paragraph 
(c) to read as follows:


Sec. 210.52  Motions for temporary relief.

* * * * *
    (c) In determining whether to require a bond as a prerequisite to 
the issuance of temporary relief, the Commission will be guided by 
practice under Rule 65 of the Federal Rules of Civil Procedure.
* * * * * *
    19. Section 210.70 is revised to read as follows:


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

    (a)(1) If the Commission determines that one or more of the 
respondents whose merchandise was covered by the temporary relief order 
has not violated section 337 of the Tariff Act of 1930 to the extent 
alleged in the motion for temporary relief and provided for in the 
temporary relief order, proceedings to determine whether the 
complainant's bond should be forfeited to one or more respondents in 
whole or part may be initiated upon the filing of a motion by a 
respondent within 30 days after filing of the aforesaid Commission 
determination on violation.
    (2) A complainant may file a motion for the return of its bond.
    (b) Any nonmoving party may file a response to a motion filed under 
paragraph (a) of this section within 15 days after filing of the 
motion, unless otherwise ordered by the administrative law judge.
    (c) A motion for forfeiture or return of a complainant's temporary 
relief bond in whole or part will be adjudicated by the administrative 
law judge in an initial determination with a 45-day effective date, 
which shall be subject to review under the provisions of Secs. 210.42 
through 210.45. In determining whether to grant the motion, the 
administrative law judge and the Commission will be guided by practice 
under Rule 65 of the Federal Rules of Civil Procedure.

    Issued: December 23, 1994.

    By Order of the Commission.
Donna R. Koehnke,
Secretary.
[FR Doc. 94-32125 Filed 12-29-94; 8:45 am]
BILLING CODE 7020-02-P