[Federal Register Volume 60, Number 197 (Thursday, October 12, 1995)]
[Rules and Regulations]
[Pages 53117-53121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25268]
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INTERNATIONAL TRADE COMMISSION
19 CFR Part 210
Final Rulemaking Concerning Federal Register Notices and Service
of Documents on Other Agencies
AGENCY: International Trade Commission.
ACTION: Final rulemaking.
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SUMMARY: The Commission hereby revises certain final rules for
investigations and related proceedings under section 337 of the Tariff
Act of 1930 (19 U.S.C. 1337). The revisions are intended to increase
the economy and efficiency of the section 337 process by eliminating
the Federal Register publication requirement for certain notices that
are not required by law and reducing the number of documents served on
other agencies pursuant to section 337(b)(2).
DATES: In accordance with the 30-day advance publication requirement
imposed by 5 U.S.C. 553(d), the effective date of these revised rules
is November 13, 1995.
FOR FURTHER INFORMATION CONTACT: P.N. Smithey, Esq., Office of the
General Counsel, U.S. International Trade Commission, telephone 202-
205-3061. Hearing-impaired individuals can obtain information
concerning the proposed rulemaking by contacting the Commission's TDD
terminal at 202-205-1810.
SUPPLEMENTARY INFORMATION:
Background
In Audit Report No. IG-03-94, Review of Ways to Increase the
Economy and Efficiency of the Process for Conducting Section 337
Investigations (Aug. 19, 1994), the Inspector General (IG) recommended
that the Commission cease publication of section 337 Federal Register
notices that are not required by law. The IG also recommended that the
Commission cease routinely serving various section 337 documents on
other Federal agencies.
The Commission subsequently made a policy decision to halt
publication of many, but not all, notices that are not required by law.
The Commission also decided that fewer documents should be served on
other agencies.
To implement the proposed changes on an interim basis, Chairman
Peter S. Watson issued administrative orders suspending the relevant
Commission interim and final rules. See Administrative Orders 95-11 and
95-12 (Mar. 21, 1995). The Chairman also sent letters announcing the
interim and proposed permanent publication and distribution changes to
interested Federal agencies. To obtain comments from the public, the
Commission published a notice of proposed rulemaking in the Federal
Register.1 60 FR 16082 (Mar. 29, 1995) (the March 29, 1995
Notice).
\1\See the Commission's March 25, 1995 notice for a complete
discussion of the purpose and effect of the rulemaking changes
adopted herein.
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The Comments
The Commission received comments from the U.S. Department of
Justice and the International Trade Commission Trial Lawyers
Association (ITCTLA). The Justice Department expressed approval of the
Commission's plan for reducing the number of documents served on other
agencies. Justice also endorsed having section 337 documents available
through the Internet.
The ITCTLA commented that having section 337 notices and other
section 337 documents available on the
[[Page 53118]]
Internet, LEXIS, and/or WESTLAW was not an acceptable alternative to
publishing notices in the Federal Register. The ITCTLA also commented
that the Commission should continue to publish a Federal Register
notice whenever it takes the following actions:
1. Determines whether to review an initial determination (ID) on a
matter other than temporary relief, regardless of whether that
determination results in termination of the investigation in its
entirety;
2. Determines to deny a motion for temporary relief; or
3. Institutes proceedings to modify or rescind final Commission
action.
The ITCTLA argued that the Commission should continue to publish
notice of its decisions on whether to review IDs on matters other than
temporary relief, because such decisions (1) Often contain valuable
information regarding Commission policy and practice on specific legal
issues, (2) may have substantial precedential value, and (3) may be
dispositive of certain aspects of the investigation. The ITCTLA urged
the Commission to continue publishing notice of Commission decisions to
deny temporary relief because (1) Such decisions have precedential
value, and (2) the Federal Register is the source most likely to be
relied upon by nonparties with an interest in the goods and/or the
legal questions at issue. Finally, the ITCTLA advocated publication of
notices of the institution of proceedings to modify or rescind final
Commission action, because (1) The Commission's final action in such
proceedings could disturb the status quo, (2) nonparties with an
interest in the goods should therefore have prompt notice of the
proceedings, and (3) nonparties are more likely to review the Federal
Register than they are to monitor the Commission's docket or to be on
the Commission's mailing list.
The Commission's Decisions
After considering the foregoing comments, the Commission has
unanimously decided to permanently adopt the plan for reducing the
number of section 337 documents served on other agencies, as described
in the proposed rules published on March 29, 1995, Administrative Order
95-11, and the Chairman's letters to other agencies.
The Commission also has decided to permanently adopt the plan for
reducing the number of section 337 notices published in the March 29,
1995 Notice, with the exception of proposed rule 210.75(b) as discussed
below. Publication costs have increased significantly, while the
Commission's resources have decreased. The Commission also has not
received any indication that the reduction in the number of section 337
notices published already implemented by administrative order in March
has caused significant problems for parties, the Commission staff, or
the public. As noted below, section 337 notices are available through
alternative sources, including the Internet. If the plan as adopted
should cause problems in the future, the Commission will revisit its
publication practice as needed.
To implement the Commission's decision regarding the publication of
Federal Register notices and the service of documents on other
agencies, Chairman Watson has issued Administrative Orders 95-18 and
95-19 (Oct. 4, 1995). Chairman Watson has also sent letters announcing
the Commission's decisions to the Justice Department, the U.S. Customs
Service, the Federal Trade Commission, and the U.S. Department of
Health and Human Services.
Like the rule suspensions imposed by Administrative Orders 95-11
and 95-12, the suspensions imposed in Administrative Orders 95-18 and
95-19 apply to the 1994 interim section 337 rules2 as well as the
final rules.3 Administrative Orders 95-18 and 95-19 both state
that the suspension of each final rule terminates on the effective date
of an amended or revised rule eliminating the Federal Register notice
requirement or the document service requirement from the suspended
final rule.
\2\19 CFR parts 210 and 211 (1994).
\3\19 CFR part 210 (1995), as amended at 60 FR 32442 (June 22,
1995).
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Administrative Orders 95-18 and 95-19 also provide that the
Commission's suspension of the relevant 1994 interim rules is to remain
in effect permanently, unless the suspensions are rescinded by a future
administrative order. Permanent suspension is appropriate because it
was not practicable for the Commission to revise the subject interim
rules. Those rules were codified in the 1994 edition of 19 CFR parts
210 and 211. The rules currently codified in the 1995 edition of 19 CFR
part 210 are final rules which replaced the 1994 interim rules in parts
210 and 211.4 The 1994 interim rules remain in effect, however,
and apply to any pending investigation or related proceeding that was
instituted before September 1, 1994.5
\4\See 59 FR 39020, Part II (Aug. 1, 1994), as corrected by 59
FR 64286 (Dec. 14, 1994) and as amended by 59 FR 67622 (Dec. 30,
1994) and 60 FR 32442 (June 22, 1995).
\5\See 59 FR 39020.
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Availability of Section 337 Notices
Copies of section 337 notices may be reviewed in several locations
on the Commission's premises at 500 E Street, SW., Washington, DC
20436. For example, all notices (and other nonconfidential documents on
the records of section 337 investigations) may be inspected in the
Dockets Branch of the Office of the Secretary (Room 112-A). The notices
are located in the public inspection file for the investigation to
which the notice or document pertains. Copies may be ordered from the
Dockets Branch as well. For further information, contact Ruby J.
Dionne, Assistant Secretary and Dockets Branch Chief, telephone 202-
205-1802.
Copies of recently issued notices--and news releases concerning the
institution of section 337 investigations--also may be obtained from
bins along the wall outside of the Dockets Branch.
Section 337 notices that are published in the Federal Register can
be reviewed in the Commission's Law Library (Room 614) and the
Commission's National Library of International Trade (Room 300).6
In light of the Commission's decision to reduce the number of notices
published in the Federal Register, unpublished notices will be
available in the Law Library as well.
\6\The Law Library maintains paper copies of section 337 Federal
Register notices in binders. All notices issued in a particular
investigation are placed together in chronological order. The Law
Library also keeps paper copies of all issues of the Federal
Register for the current year. The National Library of International
Trade maintains paper copies of the Federal Register for the current
year and microfiche or microfilm copies of the issues for all
preceding years.
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Interested persons should also be aware that the Commission has
established an Internet site and that a web server and a file transfer
protocol (FTP) server are now available for public access. All section
337 notices are now being posted, but only for the duration of the
investigations or related proceedings in which the notices were issued.
To access the Commission web server, users should enter http://
www.usitc.gov. To access the Commission FTP server, users should enter
ftp://ftp.usitc.gov. Information available for downloading from the
Commission FTP server mirrors the web server.
The Commission notes finally that some section 337 notices also may
be available in the LEXIS and/or WESTLAW databases.
[[Page 53119]]
Section-by-Section Analysis of the Revised Rules
The revised rules which the Commission has adopted in this notice
are the same as the proposed rules published in the March 29, 1995
Notice--with one difference: The Commission has not adopted proposed
rule 210.75(b). The preamble to the revised rules accordingly consists
of (1) The commentary in the present notice and (2) the commentary
preceding the proposed rules in the March 29, 1995 Notice, except for
the reference to proposed rule 210.75(b).
Proposed rule 210.75(b) was inadvertently included in the March 29,
1995 Notice. The Commission had decided to continue publishing notices
of enforcement proceedings, as stated in Administrative Order 95-12.
Administrative Order 95-18 provides that the Commission will continue
to publish such notices.
A proposal for revising final rule 210.76(b) to eliminate the
Federal Register notice requirement for the action to be taken upon
receipt of a petition for modification or rescission of a remedial
order or a consent order was inadvertently omitted from the March 29,
1995 Notice. That provision of rule 210.76(b) was suspended under
Administrative Order 95-12, however. It remains suspended under
Administrative Order 95-18. A proposed revision of rule 210.76(b) will
be published at a later date for public comment.
Regulatory Analysis
The revised rules adopted in this notice do not meet the criteria
enumerated in section 3(f) of Executive Order 12866,7 and
therefore do not constitute a significant regulatory action for
purposes of that Executive Order.
\7\58 FR 51735, Oct. 4, 1993.
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In accordance with the Regulatory Flexibility Act,\8\ the
Commission certifies\9\ that the revised rules pertaining to the
service of documents on other Federal agencies are not likely to have a
significant economic impact on a substantial number of small business
entities. The rules in question relate solely to the service of
documents by the Commission, not by parties or other interested persons
that may or may not be small business entities.
\8\5 U.S.C. 601 note.
\9\Pursuant to 5 U.S.C. 605(b).
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The Commission also certifies that the revised rules on the
publication of Federal Register notices are not likely to have a
significant economic impact on a substantial number of small business
entities. Small businesses (and other firms) that are parties to a
section 337 investigation or a related proceedings are served with
copies of all notices issued by the presiding administrative law judge
or the Commission, regardless of whether the notice will or will not be
published in the Federal Register.
Elimination of the Federal Register publication requirement for
certain kinds of notices also should not have a significant economic
impact on a substantial number of small business entities that are not
parties but have an interest in a particular investigation or related
proceeding. The Commission notes first that only certain investigations
or related proceedings are likely to be of interest to a nonparty firm.
Moreover, some of the Federal Register notices that are being
eliminated by the revised rules and suspended by Administrative Order
95-18 pertain to events that occur infrequently (e.g. a request for the
modification of consent order reporting requirements or the institution
of proceedings for the modification or rescission of a remedial order
or a consent order). If a nonparty small business entity is interested
in a particular investigation or in post-investigation developments
that result in the institution of a related proceeding,\10\ the firm
can obtain such information and copies of the relevant notice or other
document by calling or writing the Commission's staff or by visiting
the Commission's premises. Copies of such notices also may be
accessible through the Commission's Internet server, as described above
in this notice.
\10\The terms ``investigation'' and ``related proceedings'' are
defined in final rule 210.3 (19 CFR 210.3) (1995).
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In any event, the Commission maintains that the Regulatory
Flexibility Act is inapplicable to this rulemaking, because it is not
one for which a notice of proposed rulemaking was required under 5
U.S.C. 553(b) or another statute.\11\ Though the Commission chose to
publish such a notice on March 29, 1995, the revised rules are ``agency
rules of procedure or practice'' and thus were exempt from the notice
requirement imposed by 5 U.S.C. 553(b).
\11\See 5 U.S.C. 603(a).
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List of Subjects in 19 CFR Part 210
Administrative practice and procedure, Advisory opinions, Business
and industry, Customs duties and inspection, Imports, Investigations.
For the reasons set forth in the preamble, the U.S. International
Trade Commission hereby revises part 210 of title 19 of the Code of
Federal Regulations as follows:
PART 210--ADJUDICATIVE PROCEDURES
1. The authority citation for part 210 continues to read as
follows:
Authority: 19 U.S.C. 1333, 1335, and 1337.
2. Section 210.7 is revised to read as follows:
Sec. 210.7 Service of process and other documents; publication of
notices.
(a) Manner of service. The service of process and all documents
issued by or on behalf of the Commission or the administrative law
judge--and the service of all documents issued by parties under
Secs. 210.27 through 210.34 of this part--shall be in accordance with
Sec. 201.16 of this chapter, unless the Commission, the administrative
law judge, or another section of this part specifically provides
otherwise.
(b) Publication of notices. (1) Notice of action by the Commission
or an administrative law judge will be published in the Federal
Register only as specifically provided in paragraph (b)(2) of this
section, by another section in this chapter, or by order of an
administrative law judge or the Commission.
(2) When an administrative law judge or the Commission determines
to amend or supplement a notice published in accordance with paragraph
(b)(1) of this section, notice of the amendment will be published in
the Federal Register.
3. Paragraph (a) of Sec. 210.11 is revised to read as follows:
Sec. 210.11 Service of complaint and notice of investigation.
(a)(1) Notwithstanding the provisions of Sec. 210.54 requiring
service of the complaint by the complainant, the Commission, upon
institution of an investigation, shall serve copies of the complaint
and the notice of investigation (and any accompanying motion for
temporary relief) upon each respondent and the embassy in Washington,
DC of the government of each foreign country represented by each
respondent. All respondents named after an investigation has been
instituted and the governments of the foreign countries they represent
shall be served as soon as possible after the respondents are named.
(2) The Commission shall serve copies of the notice of
investigation upon the U.S. Department of Health and Human Services,
the U.S. Department of Justice, the Federal Trade Commission, the U.S.
Customs Service, and such other
[[Page 53120]]
agencies and departments as the Commission considers appropriate.
* * * * *
4. Paragraphs (b)(2), (c)(2)(i), (c)(2)(ii), and (d) of Sec. 210.21
are revised to read as follows:
Sec. 210.21 Termination of investigations.
* * * * *
(b) Termination by Settlement. * * *
(2) The motion and agreement(s) shall be certified by the
administrative law judge to the Commission with an initial
determination if the motion for termination is granted. If the
licensing or other agreement or the initial determination contains
confidential business information, copies of the agreement and initial
determination with confidential business information deleted shall be
certified to the Commission simultaneously with the confidential
versions of such documents. Notice of the initial determination and the
agreement shall be provided to the U.S. Department of Health and Human
Services, the U.S. Department of Justice, the Federal Trade Commission,
the U.S. Customs Service, and such other departments and agencies as
the Commission deems appropriate. If the Commission's final disposition
of the initial determination results in termination of the
investigation in its entirety, a notice will be published in the
Federal Register. An order of termination by settlement need not
constitute a determination as to violation of section 337 of the Tariff
Act of 1930.
(c) Termination by entry of consent order. * * *
(2) Commission disposition of consent order. (i) If an initial
determination granting the motion for termination based on a consent
order stipulation is filed with the Commission, notice of the initial
determination and the consent order stipulation shall be provided to
the U.S. Department of Health and Human Services, the U.S. Department
of Justice, the Federal Trade Commission, the U.S. Customs Service, and
such other departments and agencies as the Commission deems
appropriate.
(ii) The Commission, after considering the effect of the settlement
by consent order upon the public health and welfare, competitive
conditions in the U.S. economy, the production of like or directly
competitive articles in the United States, and U.S. consumers, shall
dispose of the initial determination according to the procedures of
Secs. 210.42 through 210.45. If the Commission's final disposition of
the initial determination results in termination of the investigation
in its entirety, a notice will be published in the Federal Register. An
order of termination by consent order need not constitute a
determination as to violation of section 337. Should the Commission
reverse the initial determination, the parties are in no way bound by
their proposal in later actions before the Commission.
* * * * *
(d) Termination based upon arbitration agreement. Upon filing of a
motion for termination with the administrative law judge or the
Commission, a section 337 investigation may be terminated as to one or
more respondents pursuant to section 337(c) of the Tariff Act of 1930
on the basis of an agreement between complainant and one or more of the
respondents to present the matter for arbitration. The motion and a
copy of the arbitration agreement shall be certified by the
administrative law judge to the Commission with an initial
determination if the motion for termination is granted. If the
agreement or the initial determination contains confidential business
information, copies of the agreement and initial determination with
confidential business information deleted shall be certified to the
Commission with the confidential versions of such documents. A notice
will be published in the Federal Register if the Commission's final
disposition of the initial determination results in termination of the
investigation in its entirety. An order of termination based on an
arbitration agreement does not constitute a determination as to
violation of section 337 of the Tariff Act of 1930.
* * * * *
5. 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). The Commission shall publish in
the Federal Register notice of each Commission order that terminates an
investigation in its entirety.
6. Paragraphs (e) and (i) of Sec. 210.42 are amended to read as
follows:
Sec. 210.42 Initial determinations.
* * * * *
(e) Notice to and advice from other departments and agencies.
Notice of each initial determination granting a motion for termination
of an investigation in whole or part on the basis of a consent order or
a settlement, licensing, or other agreement pursuant to Sec. 210.21 of
this part, and notice of such other initial determinations as the
Commission may order, shall be provided to the U.S. Department of
Health and Human Services, the U.S. Department of Justice, the Federal
Trade Commission, the U.S. Customs Service, and such other departments
and agencies as the Commission deems appropriate. The Commission shall
consider comments, limited to issues raised by the record, the initial
determination, and the petitions for review, received from such
agencies when deciding whether to initiate review or the scope of
review. The Commission shall allow such agencies 10 days after the
service of an initial determination to submit their comments.
* * * * *
(i) Notice of determination. A notice stating the Commission's
decision on whether to review an initial determination will be issued
by the Secretary and served on the parties. Notice of the Commission's
decision will be published in the Federal Register if the decision
results in termination of the investigation in its entirety.
7. Paragraph (d)(3) of Sec. 210.43 is revised to read as follows:
Sec. 210.43 Petitions for review of initial determinations on matters
other than temporary relief.
* * * * *
(d) * * *
(3) The Commission shall grant a petition for review and order
review of an initial determination or certain issues therein when at
least one of the participating Commissioners votes for ordering review.
In its notice, the Commission shall establish the scope of the review
and the issues that will be considered and make provisions for filing
of briefs and oral argument if deemed appropriate by the Commission. If
the notice solicits written submissions from interested persons on the
issues of remedy, the public interest, and bonding in addition to
announcing the Commission's decision to grant a petition for review of
the initial determination, the notice shall be served by the Secretary
on all parties, the U.S. Department of Health and Human Services, the
U.S. Department of Justice, the Federal Trade Commission, the U.S.
Customs Service, and such other departments and agencies as the
Commission deems appropriate.
8. Paragraph (c) of Sec. 210.45 is revised to read as follows:
Sec. 210.45 Review of initial determinations on matters other than
temporary relief.
* * * * *
[[Page 53121]]
(c) Determination on review. On review, the Commission may affirm,
reverse, modify, set aside or remand for further proceedings, in whole
or in part, the initial determination of the administrative law judge.
The Commission also may make any findings or conclusions that in its
judgment are proper based on the record in the proceeding. If the
Commission's determination on review terminates the investigation in
its entirety, a notice will be published in the Federal Register.
9. Paragraphs (d) and (f) of Sec. 210.66 are revised to read as
follows:
Sec. 210.66 Initial determination concerning temporary relief;
Commission action thereon.
* * * * *
(d) Notice of the initial determination shall be served on the
other agencies listed in Sec. 210.50(a)(2). Those agencies will be
given 10 calendar days from the date of service of the notice to file
comments on the initial determination.
* * * * *
(f) If the Commission determines to modify, reverse, or set aside
the initial determination, the Commission will issue a notice and, if
appropriate, a Commission opinion. If the Commission does not modify,
reverse, or set aside the administrative law judge's initial
determination within the time provided under paragraph (b) of this
section, the initial determination will automatically become the
determination of the Commission. Notice of the Commission's
determination concerning the initial determination will be issued on
the statutory deadline for determining whether to grant temporary
relief, or as soon as possible thereafter, and will be served on the
parties. Notice of the determination will be published in the Federal
Register if the Commission's disposition of the initial determination
has resulted in a determination that there is reason to believe that
section 337 has been violated and a temporary remedial order is to be
issued. If the Commission determines (either by reversing or modifying
the administrative law judge's initial determination, or by adopting
the initial determination) that the complainant must post a bond as a
prerequisite to the issuance of temporary relief, the Commission may
issue a supplemental notice setting forth conditions for the bond if
any (in addition to those outlined in the initial determination) and
the deadline for filing the bond with the Commission.
10. Paragraph (b) of Sec. 210.74 is revised to read as follows:
Sec. 210.74 Modification of reporting requirements.
* * * * *
(b) Consent orders. Consistent with the standards set forth in
paragraph (a) of this section, the Commission may modify reporting
requirements of consent orders. The Commission shall serve notice of
any proposed change, together with the reporting requirements to be
modified and the reasons therefor, on each party subject to the consent
order. Such parties shall be given the opportunity to submit briefs to
the Commission, and the Commission may hold a hearing on the matter.
Notice of any proposed change in the reporting requirements will be
published in the Federal Register if the Commission determines to
solicit public comment on the proposed change.
Issued: October 4, 1995.
By Order of the Commission.
Donna R. Koehnke,
Secretary .
[FR Doc. 95-25268 Filed 10-11-95; 8:45 am]
BILLING CODE 7020-02-P