Rules of General Application and Adjudication and Enforcement, 72280-72301 [E7-24591]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 72, Number 244 (Thursday, December 20, 2007)]
[Proposed Rules]
[Pages 72280-72301]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-24591]


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INTERNATIONAL TRADE COMMISSION

19 CFR Parts 201 and 210


Rules of General Application and Adjudication and Enforcement

AGENCY: International Trade Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States International Trade Commission 
(``Commission'') proposes to amend its

[[Page 72281]]

Rules of Practice and Procedure concerning rules of general 
application, adjudication, and enforcement. The amendments are 
necessary to make certain technical corrections, to clarify certain 
provisions, to harmonize different parts of the Commission's rules, and 
to address concerns that have arisen in Commission practice. The 
intended effect of the proposed amendments is to facilitate compliance 
with the Commission's Rules and improve the administration of agency 
proceedings.

DATES: To be assured of consideration, written comments must be 
received by 5:15 p.m. within 60 days after publication of this notice 
of proposed rulemaking.

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

--Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
--Agency Web Site: https://www.usitc.gov. Follow the instructions for 
submitting comments on the Web site at https://www.usitc.gov/secretary/
edis.htm.
--E-mail: eric.frahm@usitc.gov. Include docket number MISC-022 in the 
subject line of the message.
--Mail: For paper submission. U.S. International Trade Commission, 500 
E Street, SW., Room 112, Washington, DC 20436.
--Hand Delivery/Courier: U.S. International Trade Commission, 500 E 
Street, SW., Room 112, Washington, DC 20436. From the hours of 8:45 
a.m. to 5:15 p.m.

    Instructions: All submissions received must include the agency name 
and docket number (MISC-022 ) or Regulatory Information Number (RIN) 
for this rulemaking. All comments received will be posted without 
change to https://www.usitc.gov, including any personal information 
provided. For paper copies, a signed original and 14 copies of each set 
of comments, along with a cover letter stating the nature of the 
commenter's interest in the proposed rulemaking, should be submitted to 
Marilyn R. Abbott, Secretary, U.S. International Trade Commission, 500 
E Street, SW., Room 112, Washington, DC 20436.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.usitc.gov and/or the U.S. 
International Trade Commission, 500 E Street, SW., Room 112, 
Washington, DC 20436.

FOR FURTHER INFORMATION CONTACT: Eric Frahm, Office of the General 
Counsel, United States International Trade Commission, telephone 202-
205-3107. Hearing-impaired individuals are advised that information on 
this matter can be obtained by contacting the Commission's TDD terminal 
at 202-205-1810. General information concerning the Commission may also 
be obtained by accessing its Internet server at https://www.usitc.gov.

SUPPLEMENTARY INFORMATION: The preamble below is designed to assist 
readers in understanding these proposed amendments to the Commission 
Rules. This preamble provides background information, a regulatory 
analysis of the proposed amendments, an explanation of the proposed 
amendments to part 201, a section-by-section explanation of the 
proposed amendments to part 210, and a description of the proposed 
amendments to the rules. The Commission encourages members of the 
public to comment, in addition to any other comments they wish to make 
on the proposed amendments, on whether the proposed amendments are in 
language that is sufficiently clear for users to understand.
    If the Commission decides to proceed with this rulemaking after 
reviewing the comments filed in response to this notice, the proposed 
rule revisions will be promulgated in accordance with the 
Administrative Procedure Act (``APA'') (5 U.S.C. 553), and will be 
codified in 19 CFR parts 201 and 210.

Background

    Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes 
the Commission to adopt such reasonable procedures, rules, and 
regulations as it deems necessary to carry out its functions and 
duties. This rulemaking seeks to update certain outdated provisions and 
improve other provisions of the Commission's existing Rules of Practice 
and Procedure. The Commission proposes amendments to its rules covering 
investigations under section 337 of the Tariff Act of 1930 (19 U.S.C. 
1337) (``section 337'') in order to increase the efficiency of its 
section 337 investigations. This rulemaking effort began in 2003 when 
the ITC Trial Lawyers Association (``ITCTLA'') submitted a report to 
the Commission which suggested several rule changes that it believed 
would make the Commission rules more effective. In the course of 
considering the ITCTLA proposals, the Office of the General Counsel and 
the Office of Unfair Import Investigations (``OUII'') also suggested 
various rule changes. The Commission invites the public to comment on 
all of these proposed rules amendments. In any comments, please 
consider addressing whether the proposed amendments are in language 
that is clear and easy to understand. In addition, in any comments, 
please consider addressing how the proposed rules amendments could be 
improved, and/or offering specific constructive alternatives where 
appropriate.
    Consistent with its ordinary practice, the Commission is issuing 
these proposed amendments in accordance with the rulemaking procedure 
in section 553 of the APA. This procedure entails the following steps: 
(1) Publication of a notice of proposed rulemaking; (2) solicitation of 
public comments on the proposed amendments; (3) Commission review of 
public comments on the proposed amendments; and (4) publication of 
final amendments at least thirty days prior to their effective date.

Regulatory Analysis of Proposed Amendments to the Commission's Rules

    The Commission has determined that the final rules do not meet the 
criteria described in section 3(f) of Executive Order 12866 (58 FR 
51735, Oct. 4, 1993) and thus do not constitute a significant 
regulatory action for purposes of the Executive Order.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is 
inapplicable to this rulemaking because it is not one for which a 
notice of final rulemaking is required under 5 U.S.C. 553(b) or any 
other statute. Although the Commission has chosen to publish a notice 
of final rulemaking, these proposed regulations are ``agency rules of 
procedure and practice,'' and thus are exempt from the notice 
requirement imposed by 5 U.S.C. 553(b).
    These proposed rules do not contain federalism implications 
warranting the preparation of a federalism summary impact statement 
pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).
    No actions are necessary under the Unfunded Mandates Reform Act of 
1995 (2 U.S.C. 1501 et seq.) because the final rules will not result in 
the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more in any one 
year, and will not significantly or uniquely affect small governments.
    The final rules are not major rules as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996 (5 
U.S.C. 801 et seq.). Moreover, they are exempt from the reporting 
requirements of the Contract With America Advancement Act of 1996 (Pub. 
L. 104-121) because

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they concern rules of agency organization, procedure, or practice that 
do not substantially affect the rights or obligations of non-agency 
parties.
    The amendments are not subject to section 3504(h) of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.), since they do not contain any 
new information collection requirements.

Explanation of the Proposed Amendments to 19 CFR Part 201

    The Commission proposes to amend part 201, Rules of General 
Application, in the manner described below.

Subpart B--Initiation and Conduct of Investigations

Section 201.16

    Section 201.16 provides generally for service of process and other 
documents, and includes paragraph (d) which provides for additional 
time after service by mail. Recently amended sections 210.6 and 210.7 
allow one additional day for the parties to respond to Commission 
documents that are served by overnight delivery. See 72 FR 13689, March 
23, 2007. The Commission proposes adding new paragraph (e) of section 
201.16 to also provide one additional day for parties to respond to 
documents served on them by overnight delivery by other parties, and to 
conform section 201.16 to sections 210.6 and 210.7. The Commission also 
proposes redesignating existing paragraph (e) as new paragraph (f) to 
allow for this change.

Section-by-Section Explanation of the Proposed Amendments to 19 CFR 
Part 210

    The Commission proposes to amend part 210, Adjudication and 
Enforcement, in the manner described below.

Subpart A--Rules of General Applicability

Section 210.3

    This section provides definitions of words and phrases used in part 
210. The phrase ``U.S. Customs Service'' is used throughout part 210. 
Pursuant to the Homeland Security Act of 2002, the U.S. Customs Service 
merged into the Department of Homeland Security. The official name of 
this entity is now ``U.S. Customs and Border Protection.'' 72 FR 20131, 
April 23, 2007. Thus, the Commission proposes to amend section 210.3 to 
reflect the official name.

Section 210.4

    Paragraph (f)(1)(i) of section 210.4 sets forth the physical 
specifications for the filing of documents addressed to the Commission 
and was adopted when filings were frequently typeset by commercial 
printers. The Commission proposes revising section 210.4 to remove 
reference to any physical specifications related to typographic 
printing processes.

Section 210.7

Paragraph (a), Manner of Service
    Recently, sections 210.6 and 210.7 were amended to include 
provisions relating to the service of certain Commission documents by 
overnight delivery. See 72 FR 13689-90, March 23, 2007. Although these 
amendments were intended, inter alia, to streamline the service process 
and promote uniformity of service, the amendments regarding service by 
overnight delivery have created the prospect of differing response 
dates for the private parties and OUII. Thus, an unintended consequence 
of these amendments is that tracking of multiple service dates by the 
Commission will be necessary for various documents and/or numerous 
additional requests for extensions of time will be made to conform 
response dates for all parties.
    Under existing practice, the Commission normally grants requests 
for extensions of time which are made to ensure that the due date for 
responses is uniform as to all parties. Therefore, the Commission 
proposes to add a new paragraph (a)(3) to section 210.7 so that when 
the Commission effects service upon the private parties by overnight 
delivery, service upon OUII shall also be deemed to have been effected 
by overnight delivery. This amendment to paragraph (a) of section 210.7 
should eliminate multiple response dates for the same document by 
providing a uniform response date for all parties, thereby obviating 
the need for recurrent requests to conform response dates and 
minimizing administrative burdens on Commission personnel. Thus, the 
amendment is consistent with the aims of the recent overnight service 
provisions relating to Commission documents. See 72 FR 13689, March 23, 
2007.
New Paragraph (b), Designations for Service of Process
    Paragraph (a)(1) of section 210.7 generally provides service rules 
and requires that documents shall be served on all other parties. At 
present, any entity that files an entry of appearance on behalf of a 
named party is placed on the service list and is served with all 
documents. Service of documents containing confidential business 
information also requires signing onto the protective order for that 
investigation. This leads to the situation where multiple offices of 
the same law firm and multiple law firms are being served with 
documents on behalf of a single party. Redundancy in service is a 
substantial financial burden on both the private parties and the 
Commission in terms of copying and delivery costs.
    The Commission proposes that a lead attorney be designated to 
accept process for all other attorneys representing the same party in a 
section 337 investigation. Under this proposal, no limit would be 
placed on the number of attorneys of record for a party, but each named 
party would have to designate one attorney-for-service who agrees to 
accept all service on behalf of that party. The Commission proposes 
adding new paragraph (b) to provide designation of a single attorney, 
selected lead attorney, or representative for service of process. The 
Commission also proposes redesignating existing paragraph (b) of 
section 210.7 (which concerns the publication of notices) as paragraph 
(c) to accommodate the addition of new paragraph (b).

Subpart B--Commencement of Preinstitution Proceedings and 
Investigations

Sections 210.8 and 210.11

    Sections 210.8 and 210.11 generally concern commencement of 
preinstitution proceedings and service of a complaint and notice of 
investigation. To make sections 210.8 and 210.11 easier to read and 
understand, the Commission proposes completely revising each of these 
sections by distinctly setting out their respective requirements for: 
(1) Complaints not seeking temporary relief, and (2) complaints seeking 
temporary relief. Specifically, paragraphs (a)(1) of proposed sections 
210.8 and 210.11 relate to complaints not seeking temporary relief, and 
paragraphs (a)(2) of proposed sections 210.8 and 210.11 relate to 
complaints seeking temporary relief. Further detailed explanation of 
these revisions follows.
    Section 210.8 requires that the complainant provide the Secretary 
with sufficient copies of the complaint, any supplement to the 
complaint, any motion for temporary relief, and all exhibits to any of 
these papers so that it may serve them on the proposed respondents 
should the Commission institute an investigation. Thereafter, section 
210.11 requires the Secretary to serve a copy of the complaint, and 
notice of investigation (and any accompanying motion for temporary

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relief) upon each respondent and their respective embassies in 
Washington, DC. Sections 210.8 and 210.11 acknowledge that, for 
investigations involving temporary relief, section 210.54 requires the 
complainant to serve nonconfidential copies of the complaint and motion 
for relief and nonconfidential copies of all attached materials on all 
proposed respondents and the embassy in Washington, DC. Furthermore, 
section 210.54 requires that the complainant submit to the Commission 
actual proof of service on each respondent and embassy within ten days 
after the filing of the complaint.
    Thus, sections 210.8 and 210.11 mandate duplicate service of the 
complaint and temporary relief motion together with all exhibits by the 
complainant and the Secretary in investigations involving temporary 
relief and needlessly increase the number of copies that must be 
supplied to the Secretary and served by the Secretary following the 
institution of an investigation. Duplicate service, especially of 
voluminous exhibits, imposes a serious financial burden on both the 
complainant and the Commission in terms of copying and mailing costs. 
During the 1988 rules revision, the Commission acknowledged that the 
rules required double service, but reasoned that service of the 
complaint by the Commission was necessary because the date of service 
by the Commission is the date used for computing the date for a 
response. See 53 FR 33046, August 29, 1988.
    The proposed amendment to this rule provides that in investigations 
involving temporary relief, the complainant be required to submit only 
the required number of service copies of any unserved confidential 
material provided in connection with the complaint or motion for 
temporary relief and the requisite number of copies of the public 
complaint (without exhibits) for service by the Secretary. The proposed 
amendment provides that the Secretary is required, upon institution of 
an investigation involving temporary relief, to serve only the Notice 
of Investigation and a copy of the complaint (without exhibits) on each 
respondent and embassy. The amendment further provides that the service 
of these documents by the Secretary serves as the operative service for 
calculating a response date. In the rare event that complainant does 
not serve a proposed respondent with the exhibits, the respondents may 
take up the matter with the presiding ALJ under section 210.4, or 
obtain the public exhibits from the Secretary's office or through the 
Commission's Electronic Document Information System (``EDIS'').
    Accordingly, the Commission proposes language to revise sections 
210.8 and 210.11 to provide that upon the institution of an 
investigation involving temporary relief, the Secretary will serve the 
Notice of Investigation and a copy of the complaint (without exhibits) 
on each respondent and embassy. In view of the proposed changes to 
Sec.  210.11(a)(1), the Commission also proposes to revise section 
210.54 and section 210.56 to eliminate references to subsequent service 
of the motion for temporary relief by the Commission.
    In reviewing the language of section 210.8 with a view toward 
proposing alternate language to eliminate double-service in temporary 
relief cases, it was noted that existing section 210.8 is itself rather 
confusing. Indeed, the Commission frequently receives inquiries from 
law firms representing prospective complainants that are confused about 
how many copies of the complaint and associated materials they are 
required to file to commence a section 337 proceeding. Thus, the 
Commission proposes revising section 210.8 to make it easier to 
determine how many copies are required when filing a permanent relief 
or a temporary relief complaint, and to make it possible for the 
Commission to eliminate unnecessary effort and expenses associated with 
the initial storage and subsequent re-service of materials required for 
complaints involving temporary relief requests. To achieve these ends, 
the Commission proposes breaking out the filing requirements in section 
210.8 into separate paragraphs (paragraph (a)(1) for permanent relief 
and paragraph (a)(2) for temporary relief proceedings), and setting out 
numbered lists (Sec. Sec.  210.8(a)(1)(i)-(iv) for permanent relief and 
Sec. Sec.  210.8(a)(2)(i)-(vi) for temporary relief proceedings) 
specifying the required number of copies of each item to be filed with 
the Secretary for each type of proceeding. Supplements to such filings 
are also specifically referenced in the proposed section 210.8.
    The Commission proposes similarly structured revisions to Sec.  
210.11(a)(1), which concerns Commission service of complaints and 
notices of investigation. The Commission also proposes revising section 
210.54 and Sec.  210.56(a) to reflect the aforementioned revisions to 
sections 210.8 and 210.11.

Section 210.10

    Paragraph (a)(5)(i) of section 210.10 allows a complainant to 
withdraw the complaint ``as a matter of right'' prior to the 
Commission's vote on institution of the investigation simply by filing 
a written notice with the Commission. If the complaint is being 
withdrawn pursuant to a settlement agreement, however, the rule 
requires that a copy of the settlement agreement be filed with the 
written notice. The requirement to submit a settlement agreement is 
consistent with Sec.  210.21(b) regarding termination of an on-going 
investigation based on a settlement agreement. However, prior to the 
institution of an investigation, the Commission may not have the 
knowledge necessary to assess the significance of the terms of any 
settlement agreement. Also, any review of a settlement agreement before 
institution contradicts the statement that a complainant may withdraw 
the complaint ``as a matter of right'' before institution. Thus, the 
Commission proposes revising paragraph (a)(5)(i) of section 210.10 to 
delete the requirement that any copies of the settlement agreement and/
or other documents be submitted when a complaint is withdrawn prior to 
institution.

Section 210.11

    Section 210.11 requires the Secretary to serve a copy of the 
complaint, and notice of investigation (and any accompanying motion for 
temporary relief) upon each respondent and their respective embassies 
in Washington, DC. The Commission proposes amending section 210.11 by 
substantially revising paragraphs (a) and (b) to make them easier to 
read and understand as discussed above in relation to section 210.8 and 
210.11.
    Paragraph (a) of section 210.11 generally provides for service of 
the complaint and notice of investigation as discussed above with 
regard to the proposed changes to sections 210.8 and 210.11. The 
Commission proposes revising paragraph (a) to eliminate double-service 
in temporary relief cases and to reduce the number of copies required 
when serving the complaint and temporary relief motion as previously 
discussed in relation to sections 210.8 and 210.11. The Commission also 
proposes adding paragraphs (a)(1)(ii) and (a)(2)(ii) to specifically 
provide for service of documents on ``upon the embassy in Washington, 
DC, of the country in which each proposed respondent is located as 
indicated in the Complaint.''
    Paragraph (b) of section 210.11 allows a complainant, with leave of 
the ALJ, to attempt personal service of a complaint after the 
Secretary's efforts to serve the respondent by certified mail have 
failed. The Commission proposes that the rule

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be amended to remove the reference to certified mail because the 
Commission now serves foreign addressees by overnight delivery.

Subpart C--Pleadings

Section 210.12 and 210.13

    Section 210.12 generally provides the requirements for a complaint, 
and section 210.13 generally provides for a response. The Commission 
proposes substituting the phrase ``U.S. patent'' where appropriate for 
the phrase ``U.S. letters patent'' throughout the 210 rules to reflect 
current usage. This change affects revised Sec. Sec.  210.12(a)(9), 
(a)(9)(i), (a)(9)(ii), (a)(9)(iii), (a)(9)(iv), (a)(9)(v), (a)(9)(vi), 
(a)(9)(vii) (two occurrences), and (a)(9)(viii); revised Sec. Sec.  
210.12(c), (c)(1), and (c)(2); and Sec. Sec.  210.13(b), (b)(1) (three 
occurrences), and (b)(3).

Section 210.12

Paragraph (a)(1), Verification of Complaint
    Paragraph (a)(1) of section 210.12 requires a complaint to be 
under oath and signed by the complainant or his authorized agent 
(verification of the complaint). To further clarify the meaning of 
this section, the Commission also proposes that this section be 
revised to include language that a complaint is to include a 
verification attesting to the matters in Sec. Sec.  210.4(c)(1)-(3).
Paragraphs (a)(6)(i) and (h), Domestic Industry
    Paragraphs (a)(6)(i) and (h) of section 210.12 relate to the 
requirement that complainants include a showing of domestic industry 
for certain intellectual property rights. Since the last rules 
revision, section 337 was amended to add 19 U.S.C. 1337(a)(1)(E), which 
concerns vessel hull designs, to the statute. The Commission proposes 
revising Sec.  210.12(a)(6)(i) and Sec.  210.12(a)(6)(i)(C) to include 
the appropriate references to 19 U.S.C. 1337(a)(1)(E). The Commission 
also proposes adding new Sec.  210.12(h) concerning vessel hull designs 
to bring section 210.12 into compliance with the statutory change. The 
current final paragraph (h) of section 210.12 would then be 
redesignated as paragraph (i).
Paragraph (a)(9), Content of Complaint
    Paragraph (a)(9) of section 210.12 relates to the content of a 
complaint based on infringement of a valid and enforceable U.S. 
patent. The Commission proposes substituting the phrase ``U.S. 
patent `` where appropriate for the phrase ``U.S. letters patent'' 
to reflect current usage. This change was discussed previously with 
respect to sections 210.12 and 210.13.
Paragraphs (a)(9)(iv), (a)(10), (c)(1), (d), (f), and (g); Copies of 
License Agreements
    The Commission proposes adding new Sec.  210.12(a)(9)(iv) and 
Sec. Sec.  210.12(a)(10)(i) and (a)(10)(ii) to reduce the number of 
copies of license agreements that complainants must file, and proposes 
revising Sec. Sec.  210.12(c)(1), (d), (f), and (g) to eliminate the 
language of these paragraphs regarding submission of license 
agreements.
    Section 210.12(c)(1) currently requires that a complainant submit 
the following ``additional material'' regarding licenses with a patent-
based section 337 complaint: Three copies of each license agreement 
related to each patent, or three copies of any applicable standard 
license agreement with a corresponding list of licensees operating 
under the agreement. Sections 210.12(d), (f), and (g) set forth the 
same requirement for complaints based upon federally registered 
trademarks, copyrights, and mask works, respectively. Newly proposed 
Sec.  210.12(h) concerning vessel hull designs does not call for three 
copies of license agreements.
    Because licenses are currently identified in the rules as 
``additional material to accompany'' the complaint, and only three 
copies of the licenses are required to be filed, licenses (which can be 
voluminous) are not normally filed as exhibits to the complaint. 
Rather, they are generally submitted as appendices to the complaint. 
Licenses are, therefore, not included in the service copies of the 
complaint that the Commission transmits to the respondents upon 
institution of an investigation. Also, since licenses are usually 
deemed to contain confidential business information (``CBI''), they are 
generally not available to the public via EDIS. Complainants have 
increasingly expressed concern during the pre-institution process about 
submitting copies of all or some of their license agreements with the 
complaint because of non-disclosure provisions in these agreements.

    While the submission of all license agreements regarding 
asserted patents and federally registered trademarks, copyrights and 
mask works is required under the current Rules, such agreements do 
not normally bear upon the decision to institute an investigation. 
Indeed, the present requirement burdens the complainant and Office 
of the Secretary with the reproduction and storage of documents that 
are not needed by Commission staff at the outset of an investigation 
and that can later be obtained by the parties through routine 
discovery requests. Accordingly, the Commission proposes that 
paragraphs (c)(1), (d), (f), and (g) of section 210.12 be amended so 
that the submission of license agreements would be required only in 
those instances where (i) the complainant relies upon its status as 
a licensee for purposes of standing or (ii) the complainant relies 
upon the domestic activities of a licensee in support of its 
domestic industry contentions. Moreover, the Commission proposes 
that in these instances, the license be submitted as an exhibit to 
the complaint (which would ultimately be served upon the 
respondents), rather than as an appendix item (which would remain in 
the Commission files and would not be served on respondents). In 
addition, under this proposal, all licensees of the asserted rights 
would also have to be identified in the complaint. Such 
identification is currently required for patent licensees under 
Sec.  210.12(a)(9)(iii), but not for licensees of registered 
trademarks, copyrights, or mask works. The Commission proposes 
adding new paragraph (10) in Sec.  210.12(a) to clearly set forth 
the requirements regarding licenses for non-patent-based complaints 
(i.e., complaints based on the infringement of a federally 
registered copyright, trademark, mask work, or vessel hull design). 
Thus, the Commission also proposes that existing paragraph (10) of 
Sec.  210.12(a) be redesignated as paragraph (11). Finally, as noted 
above, the Commission proposes that paragraphs (d), (f), and (g) of 
section 210.12 be revised to eliminate the language at the end of 
each subsection regarding the submission of licenses.
Paragraph (a)(9)(iv), Foreign Patent Applications
    Existing paragraph (a)(9)(iv) of section 210.12 relates to the 
requirement that a complainant provide a list of each pending foreign 
patent application and each foreign patent application that has been 
denied. As currently written, the rule does not require the 
identification of any foreign patent application that has been 
abandoned or withdrawn. In current practice, however, OUII has 
consistently requested that complainants provide this information 
during OUII's pre-institution investigatory review. The proposed change 
to current Sec.  210.12(a)(9)(iv) contains language which conforms this 
section of the rules to current practice. The Commission also proposes 
redesignating paragraph (a)(9)(iv) as paragraph (a)(9)(v) of this 
section to allow for the addition of new paragraph (a)(9)(iv) relating 
to the submission of copies of license agreements in certain 
circumstances, as discussed above.
Paragraphs (a)(9)(vii) and (a)(9)(viii), Infringement/Domestic Industry 
Charts
    Paragraphs (a)(9)(vii) and (a)(9)(viii) of section 210.12 require a 
complainant to supply infringement charts and domestic industry charts 
along with the complaint, respectively. As currently written, section 
210.12 is ambiguous because it begins by requiring a showing

[[Page 72285]]

of infringement by each respondent and then states that a complainant 
makes such a showing by providing a claim chart applying an exemplary 
patent claim to both a representative domestic product and an 
infringing product of each respondent so named. For clarity, the 
Commission proposes that there be a requirement for infringement claim 
charts and a separate requirement for a domestic industry claim chart. 
This proposal revises section 210.12 to require claim charts for both 
infringement and the domestic industry, and affects the following 
paragraphs of section 210.12: Paragraph (a)(9)(vii) is revised to 
delete the reference to a ``domestic article or process,'' new 
paragraph (a)(9)(ix) is added to specifically require domestic industry 
claim charts, and paragraphs (a)(9)(iv)-(a)(9)(viii) are redesignated 
as paragraphs (a)(9)(v)-(viii) and (a)(9)(x), respectively, to 
accomodate new paragraphs (a)(9)(iv) and (a)(9)(ix).
Paragraph (c), Material to Accompany Each Patent-based Complaint
    Paragraph (c) of section 210.12 relates to additional materials 
that must accompany each patent-based complaint. The Commission 
proposes revising paragraphs (c), (c)(1), and (c)(2) of section 210.12 
by substituting the phrase ``U.S. patent `` for the phrase ``U.S. 
letters patent'' to reflect current usage as discussed above with 
regard to sections 210.12 and 210.13.
Paragraph (d), Material to Accompany Registered Trademark-based 
Complaints
    Paragraph (d) of section 210.12 relates to additional materials 
that must accompany each registered trademark-based complaint. This 
paragraph currently requires a complaint to include one certified copy 
of the trademark's federal registration along with three additional 
copies. The Commission proposes revising this paragraph to add a 
requirement for one certified copy of the prosecution history for each 
involved U.S. registered trademark, plus three additional copies. Such 
information is currently required for patent-based complaints. See 
Sec.  210.12(c)(2). The Commission believes such information will often 
be useful in crafting an exclusion order of appropriate scope, 
particularly in cases where all the respondents have defaulted.
    Section 210.12(d) also currently requires that a complainant submit 
the following ``additional material'' regarding licenses with a 
registered trademark-based section 337 complaint: Three copies of each 
license agreement related to each trademark, or three copies of any 
applicable standard license agreement with a corresponding list of 
licensees operating under the agreement. The Commission proposes 
revising Sec.  210.12(d) to eliminate the language of this paragraph 
regarding submission of license agreements as discussed above with 
regard to paragraphs (a)(9)(iv), (a)(10), and (c)(1).
Paragraph (f), Material To Accompany Copyright-Based Complaints
    Section 210.12(f) currently requires that a complainant submit the 
following ``additional material'' regarding licenses with a copyright-
based section 337 complaint: Three copies of each license agreement 
related to each copyright, or three copies of any applicable standard 
license agreement with a corresponding list of licensees operating 
under the agreement. The Commission proposes revising Sec.  210.12(f) 
to eliminate the language of this paragraph regarding submission of 
license agreements as discussed above with regard to paragraphs 
(a)(9)(iv), (a)(10), (c)(1), and (d).
Paragraph (g), Material To Accompany Mask Work-Based Complaints
    Section 210.12(g) currently requires that a complainant submit the 
following ``additional material'' regarding licenses with a mask work-
based section 337 complaint: Three copies of each license agreement 
related to each mask work, or three copies of any applicable standard 
license agreement with a corresponding list of licensees operating 
under the agreement. The Commission proposes revising Sec.  210.12(g) 
to eliminate the language of this paragraph regarding submission of 
license agreements as discussed above with regard to paragraphs 
(a)(9)(iv), (a)(10), (c)(1), (d), and (f).
Paragraph (h), Material To Accompany Vessel Hull Design-Based 
Complaints
    The Commission proposes adding a new provision, paragraph (h), 
under section 210.12 relating to additional material to accompany a 
registered vessel hull design-based complaint. The Commission proposes 
that a complainant that bases its complaint on a vessel hull design 
registered under 17 U.S.C. 1301 et seq. should be required to provide 
the same materials as does a complainant bringing an action under other 
copyright provisions (Sec.  210.12(f)) or under a federally registered 
mask work (Sec.  210.12(g)). Specifically, the proposal requires that a 
complainant provide one certified copy and three additional copies of 
the certificate of registration, issued by the Registrar of Copyrights 
under 17 U.S.C. 1314, and identify any licensees under the registered 
vessel hull design. To accommodate the insertion of proposed new 
paragraph (h), and the insertion of proposed new paragraph (i) 
discussed below, the Commission also proposes redesignating existing 
Sec.  210.12(h), which concerns the duty to supplement the complaint, 
as Sec.  210.12(j).
Paragraph (i), Initial Disclosures
    The Commission proposes adding a new provision, paragraph (i) under 
section 210.12 which provides for the service upon counsel for 
respondent of each document submitted with the complaint within five 
(5) business days of service of a notice of appearance and agreement to 
be bound by the terms of the protective order. Under the current rule, 
much of the information required to accompany a complaint, such as 
prosecution histories and license agreements, is submitted as part of 
an appendix rather than as an exhibit. Consequently, respondents often 
need to seek copies of these documents through discovery. The addition 
of new paragraph (i) was proposed by the ITCTLA to expedite the 
production of these documents and to provide the respondents with a 
fuller understanding of the allegations in the complaint. Such early 
document production may be particularly beneficial in investigations in 
which the domestic industry is based on an allegation of domestic 
licensing activity. The proposed new rule protects the complainant's 
confidential information by requiring service only on counsel for 
respondents who have agreed to be bound by the terms of the protective 
order.

Subpart D--Motions

Section 210.15

    The Commission proposes to amend paragraph (a) of section 210.15 to 
eliminate reference to the Chief Administrative Law Judge. In current 
practice, the institution of an investigation and assignment of an 
administrative law judge occur simultaneously, and there is no Chief 
Administrative Law Judge. Similarly, the Commission also proposes 
revising paragraph (a) of section 210.20, section 210.58, and paragraph 
(b)(3) of section 210.75 to eliminate references to the Chief 
Administrative Law Judge. These revisions merely conform the rules to 
current practice.
Section 210.18
    The Commission proposes that paragraph (a) of section 210.18 be 
revised to require that motions for summary determination be filed 60 
days

[[Page 72286]]

prior to the start of any hearing provided for in Sec.  210.36(a)(1), 
instead of 30 days before the hearing as the rule currently provides. 
In its report to the Commission, the ITCTLA proposed such an amendment 
and noted that the filing of summary determination motions only 30 days 
before the hearing is burdensome on the administrative law judge and 
the parties who are attempting to prepare for trial at that time. The 
ITCTLA commented that such motions often appear to be used as a tactic 
at that late stage, because, in practice, it is difficult for the 
administrative law judges to resolve summary determination motions in 
30 days, and, in any event, initial determinations granting such 
motions are subject to review by the Commission for another 30-45 days. 
However, the ITCTLA also proposed that the administrative law judge be 
permitted to allow the filing of a summary determination motion out of 
time under ``exceptional circumstances.'' The Commission believes the 
ITCTLA's proposal to amend section 210.18 in these respects is well 
founded, and proposes to amend section 210.18 accordingly.
    The Commission also proposes that paragraph (a) of section 210.18 
be revised to provide that the 60 day period begin on the day prior to 
the scheduled hearing whether or not it is a weekend or holiday, and 
that if the 60th day is a weekend or holiday, the motion must be filed 
on the next business day. This proposal also includes that, upon a 
showing of exceptional circumstances, a motion for summary 
determination may be filed out of time.

Section 210.20

    The Commission proposes to amend paragraph (a) of section 210.20 to 
eliminate reference to the Chief Administrative Law Judge. This change 
is the same change previously discussed with respect to paragraph (a) 
of section 210.15. The Commission also proposes to amend paragraph (a) 
of section 210.20 to specify that if the administrative law judge is no 
longer employed by the Commission, the motion to declassify 
confidential documents under Sec.  210.20(a) shall be addressed to the 
Commission.

Section 210.21

    Section 210.21 relates to the termination of an investigation in 
whole or in part by withdrawal of the complaint. The Commission 
proposes that the rule be amended in two ways.
    First, as currently written, the rule states that a party may move 
before the administrative law judge ``for an order to terminate'' an 
investigation. However, under Sec.  210.42(c), the administrative law 
judge is required to grant such a motion by initial determination and 
deny such a motion by order. Therefore, the Commission proposes to 
delete the language ``for an order'' in paragraphs (a)(1) and (a)(2) of 
section 210.21. The Commission also proposes removing the language ``An 
order of'', which appears throughout section 210.21 in paragraphs 
(b)(2), (c), (c)(2)(ii), (d), and (e), for the same reason.
    Second, current Sec.  210.21(a)(1) allows the parties to keep a 
settlement agreement secret by having the complainant move to terminate 
the investigation based on withdrawal of the complaint under Sec.  
210.21(a)(1), in direct conflict with Sec.  210.21(b), which requires 
that motions to terminate investigations based on settlement agreements 
must include the settlement agreement. The current rule, Sec.  
210.21(a)(1), states that ``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. * * *'' Thus the current rule allows for the parties to 
reach a settlement agreement and then keep the agreement secret by 
having the complainant move to terminate the investigation based on 
withdrawal of the complaint. As currently written, Sec.  210.21(a)(1) 
does not require the complainant to acknowledge or provide the 
settlement agreement to the Commission. The Commission has a public 
policy interest in reviewing settlement agreements that form the basis 
for termination of an investigation. The Commission's consideration of 
the public interest should not be dependent upon a party's choice to 
designate the termination as one based on withdrawal of the complaint 
or as one based on a settlement agreement. Thus, the Commission 
proposes amending paragraph (a)(1) of section 210.21 to make clear that 
once an investigation has been instituted, any settlement agreement 
with respect to an investigation must be provided to the Commission 
even if the complainant is willing to terminate the investigation based 
on withdrawal of the complaint. In other words, the Commission proposes 
to amend Sec.  210.21(a) to provide that a complainant requesting 
withdrawal of all or part of the complaint must affirmatively state 
that there are no agreements between the parties concerning the subject 
matter of the investigation, or if there are any such agreements, they 
must be identified and provided to the Commission. This requirement 
would alleviate the potential problem discussed above, and would also 
be consistent with Sec.  210.21(b)(1) requiring such language to 
terminate an investigation based on a settlement agreement, and 
proposed Sec.  210.21(c) requiring such language to terminate an 
investigation based on a consent order.

Section 210.22

    Section 210.22 provides a mechanism for designating an 
investigation ``more complicated.'' This rule was necessary when 
section 337 provided that Commission investigations were to be 
completed in no more than one year (18 months in ``more complicated'' 
cases). In 1994, the Uruguay Round Agreement Amendments removed 
statutory deadlines for Commission investigations under section 337, 
and accordingly there is no longer a need for this provision. While the 
temporary relief phase is still subject to statutory deadlines, 
sections 210.51 and 210.60 set forth the procedure for designating the 
temporary relief phase ``more complicated.'' Current section 210.22 has 
no relevance to current practice, and the Commission proposes that this 
section be removed in its entirety. Deletion of this section does not 
affect any other sections.

Section 210.25

    Paragraph (f) of section 210.25 generally relates to sanctions 
motions before an administrative law judge and allows an administrative 
law judge to defer adjudication of a sanctions motion until ``no later 
than 90 days after issuance of the [final] initial determination of 
violation of section 337 or termination of the investigation.'' 
However, depending upon whether the Commission undertakes review or 
requires additional time to consider the final initial determination, 
the 90-day deadline for the administrative law judge's recommended 
determination may expire on or before the Commission's final initial 
determination is issued. Issuance of the recommended determination 
before the Commission issues its decision on the merits may be 
problematic because the Commission's violation decision may vitiate, or 
at least call into question, the underpinnings of the sanctions motion. 
The Commission proposes revising Sec.  210.25(f) to permit an 
administrative law judge to defer issuing an recommended determination 
on a sanctions motion until 30 days

[[Page 72287]]

after the issuance of the Commission's final determination.

Subpart E--Discovery and Compulsory Process

Section 210.28

Paragraph (d), Service of Deposition Transcripts on the Commission 
Staff
    Paragraph (d) of section 210.28 relates to the taking of 
depositions and states that the person transcribing the depositions 
``shall forward one copy of a deposition transcript to each party 
present or represented at the taking of the deposition.'' The mandatory 
language of this rule does not comport with current practice at the 
Commission or in the U.S. district courts, where stenographers 
transcribe the deposition and make copies available (for purchase) to 
all parties to the investigation regardless of whether that party 
appeared at the deposition. See Federal Rule of Civil Procedure 
30(f)(2). Also, under Sec.  210.28(f) of the current rules, the 
Commission investigative attorney is the only attorney that ``must'' be 
served with a copy of the deposition, and the burden of such service is 
placed on the party taking the deposition, not directly on the 
stenographer. Moreover, Federal Rule of Civil Procedure 30(f)(2) states 
that ``[u]pon payment of reasonable charges therefor, the officer shall 
furnish a copy of the transcript or other recording of the deposition 
to any party or to the deponent.''
    Therefore, the Commission proposes that Sec.  210.28(d) be amended 
to conform with the Federal Rules of Civil Procedure.
Paragraph (g), Admissibility of Depositions
    Paragraph (g) of section 210.28 relates to the admissibility of 
depositions into the record of the investigation. Section 210.28(g) 
refers to the ``filing'' of depositions with the Commission 
investigative attorney. Since ``filing'' generally refers to providing 
documents to the Office of the Secretary for inclusion in the official 
record of the investigation, the word appears to be inappropriate. 
Therefore the Commission proposes revising Sec.  210.28(g) to replace 
the phrase ``filed with the Commission investigative attorney'' with 
``served upon the Commission investigative attorney.''
Paragraph (i)(4), Completion and Return of Depositions
    Paragraph (i)(4) of section 210.28 relates to completion and return 
of depositions, and also refers to the ``filing'' of depositions. For 
the same reasons discussed above in connection with Sec.  210.28(g), 
the Commission proposes revising paragraph (i)(4) to refer to 
``service'' rather than ``filing'' of depositions.

Sections 210.29, 210.30, and 210.31

    Currently, the parties rely on administrative law judge ground 
rules for deadlines. The ITCTLA noted that waiting for the 
administrative law judge's ground rules to issue has resulted in delays 
in discovery in some investigations. Specifically, there have been 
delays concerning responses to interrogatories (paragraph (b)(2) of 
section 210.29), requests for documents and entry upon land (paragraph 
(b)(2) of section 210.30), and requests for admissions (paragraph (b) 
of section 210.31). Therefore, the Commission proposes to revise 
Sec. Sec.  210.29(b)(2), 210.30(b)(2), and 210.31(b), in accordance 
with the ITCTLA's suggestion, to add a default provision that would 
impose a ten day deadline for responding to, respectively, 
interrogatories (paragraph (b)(2) of section 210.29), requests for 
documents and entry upon land (paragraph (b)(2) of section 210.30), and 
requests for admissions (paragraph (b) of section 210.31). The 
Commission also proposes to revise these rules to provide that the ten 
day deadline may be modified by the administrative law judge's ground 
rules.

Section 210.31

    Paragraph (d) of section 210.31 states that admissions will be used 
only for the pending investigation and will not be used against the 
party ``in any other proceeding,'' and section 210.3 defines an 
investigation as the original investigation into a violation of 19 
U.S.C. 1337. In Certain Lens-Fitted Film Packages, Inv. 337-TA-406, an 
issue arose regarding the use of a stipulation in an underlying 
proceeding and whether that stipulation would be binding upon the party 
in the related enforcement and advisory opinion proceeding. In that 
case, the administrative law judge determined in an initial 
determination that a stipulation from the underlying investigation was 
binding on the parties in the related proceeding. The administrative 
law judge reasoned:

* * * complainant agreed to the stipulation in the underlying 
proceeding, which stipulation was binding in the underlying 
proceeding and was relied upon to resolve certain issues with the 
resultant issuance of the general exclusion order at issue in the 
current proceedings. Hence, since the current proceedings are 
ancillary proceedings to the underlying investigation and have been 
instituted to enforce the general exclusion order from the 
underlying proceeding, the stipulation should be binding on the 
parties. Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 
(Consolidated Enforcement and Advisory Opinion Proceedings), 
Enforcement Initial Determination at 40 (Public Version, August 14, 
2002).

Because the initial determination was not reviewed, this reasoning 
became part of the Commission's final determination. See Certain Lens-
Fitted Film Packages, Inv. No. 337-TA-406, Notice of Review-in-Part, 
Non-Review-in-Part, and Remand of Enforcement Initial Determination and 
Initial Advisory Opinion to the Presiding Administrative Law Judge at 1 
(August 7, 2002). The Commission believes that the same rationale 
should apply in all investigations and proposes that the rule be 
amended to allow the use of an admission against a party in related 
Commission proceedings, as defined in section 210.3, e.g., enforcement 
and advisory opinion proceedings.

Section 210.32

    Paragraph (g) of section 210.32 establishes the procedure for 
obtaining judicial enforcement of a subpoena issued by the presiding 
administrative law judge. The Commission proposes revising this rule to 
require the presiding administrative law judge to certify 
nonconfidential copies of the subpoena for which judicial enforcement 
is sought, together with nonconfidential copies of any attachment to 
the subpoena. Nonconfidential copies of these documents are needed for 
submission to the court in support of the Commission's request for 
enforcement of the subpoena.

Section 210.34

Paragraph (c), Violation of Protective Order
    Paragraph (c) of section 210.34 addresses violations of protective 
orders. For the following reasons, the Commission proposes to revise 
the undesignated text at the end of Sec.  210.34(c) to provide that the 
identity of a person who has or is alleged to have violated an 
administrative protective order (``APO'') is to be given the same 
treatment accorded to confidential business information (``CBI'').
    The Privacy Act, 5 U.S.C. 552a, requires that Federal agencies 
protect certain information in their possession concerning individuals. 
In particular, Sec.  552a(b) of the statute imposes specific limits on 
the disclosure of such information. In addition to any statutory 
requirements, the Commission's interest in keeping an APO breacher's 
identity confidential is also animated by an

[[Page 72288]]

acknowledgment that many infractions involve inadvertent and minor 
disclosures of information by attorneys who practice before the 
Commission. The Commission has sought to balance the need to sanction 
transgressions with the concern that the severity of the punishment 
should not exceed the magnitude of the offense. Disclosing to the 
public a finding, or even an allegation, of an APO breach can have an 
adverse effect on the attorney in question, over and above the effect 
of the sanction itself. Treating the identity of APO breachers as CBI 
conforms to Commission practice in cases under Title VII of the Tariff 
Act of 1930. See 19 CFR 207.7 (provision governing disclosure of CBI 
subject to an APO under Title VII).
    Investigations of alleged APO violations in section 337 cases 
currently involve participation by all parties in the underlying 
section 337 proceeding under Sec.  210.34(d)(5). To further this 
participation, the Commission proposes to permit the parties to an 
investigation to learn the identity of an alleged breacher. However, 
the Commission proposes to revise the undesignated text at the end of 
Sec.  210.34(c) to treat the identity of alleged APO breachers as 
confidential so that non-parties do not have access to such 
information.
    In addition, the undesignated text at the end of paragraph (c) of 
section 210.34 provides for the issuance of sanctions when a signatory 
to an APO violates the APO. It is unclear from the current rule whether 
ALJs may issue sanctions, and if so, whether they are to do so by 
order, initial determination, or recommended determination. 
Accordingly, the Commission also proposes to revise this rule to 
require ALJs to rule on certain sanctions in the form of a recommended 
determination. This revision also clarifies that certain sanctions may 
be imposed only by the Commission and that the Commission must make an 
affirmative determination that such sanctions are warranted before they 
take effect.
    The Commission also proposes to revise paragraph (c) of section 
210.34 by adding the designation ``Note to paragraph (c):'' at the 
beginning of the undesignated text at the end of paragraph (c). This 
change is made for formal purposes, and to provide for clarity in any 
future reference to the text at the end of the paragraph.
Paragraph (d), Reporting Requests for Confidential Business Information
    Paragraph (d) of section 210.34 imposes a reporting requirement for 
APO signatories concerning requests or orders requiring the signatory 
to disclose information (CBI) covered by the APO to a person not 
entitled to receive it under the APO or under Sec.  210.5(b) (which 
mirrors the provisions of 19 U.S.C. 1337(n) concerning persons who are 
authorized recipients of CBI submitted to the Commission or exchanged 
among the parties in investigations or related proceedings under 
section 337). Administrative protective order breach investigations in 
the section 337 area have made clear that many attorneys are unaware of 
the existence of this reporting requirement. To highlight the existence 
of the reporting requirement, the Commission proposes including the 
reporting requirement and sanctions in the title of the rule, and 
revising the text of section 210.34 to place the reporting requirement 
and applicable sanction in separate paragraphs (paragraph (d) and new 
paragraph (e), respectively). The Commission proposes redesignating 
Sec.  210.34(d)(1) as Sec.  210.34(d), redesignating Sec.  210.34(d)(2) 
as Sec.  210.34(e), and revising the heading of section 210.34 to 
reflect the importance of the reporting requirement and the applicable 
sanction. The Commission also proposes separating the text of revised 
Sec.  210.34(d) into new paragraphs Sec. Sec.  210.34(d)(1)-(5) for 
clarity, and adding a sentence at the end of section 210.34 to make it 
clear that the reporting requirement applies only to non-Commission 
requests for CBI.
    The Commission also proposes to revise paragraph (d) of section 
210.34 by adding the designation ``Note to paragraph (d):'' at the 
beginning of the undesignated text at the end of paragraph (d). This 
change is made for formal purposes, and to provide for clarity in any 
future reference to the text at the end of the paragraph.

Subpart F--Prehearing Conferences and Hearings

Section 210.35

    Existing section 210.35 provides generally for prehearing 
conferences. The Commission proposes revising section 210.35 to include 
new Sec.  210.35(a)(2) to expressly provide for prehearing settlement 
conferences. Accordingly, it is also proposed that existing Sec. Sec.  
210.35(a)(2)-(6) be renumbered as Sec. Sec.  210.35(a)(3)-(7).

Section 210.38

    Paragraph (a) of section 210.38 lists the items that constitute the 
record of section 337 investigations. Paragraph (d) of section 210.38 
governs an administrative law judge's certification of the record to 
the Commission. Missing physical exhibits that the ALJ presumably had 
returned to the submitting parties were a problem in connection with 
the transmittal of the record of Certain Ammonium Octamolybdate 
Isomers, Inv. No. 337-TA-477, Comm'n Op. (Jan. 2004) to a U.S. District 
Court in Colorado pursuant to 28 U.S.C. 1659(b). The Commission 
proposes amending Sec. Sec.  210.38(a) and (d) to require the 
administrative law judge to certify all physical exhibits entered into 
evidence and amending Sec.  210.38(d) to indicate that the 
administrative law judge may use his/her discretion as to whether 
substitution of a photographic reproduction of a large demonstrative 
exhibit would be appropriate.

Section 210.39

    When civil litigation involving the parties to a section 337 
investigation is pending concurrently with the investigation, a section 
337 respondent who is a party to a civil action may move the court to 
stay the district court action, pursuant to 28 U.S.C. 1659(a), until 
the Commission's section 337 determination becomes final. After the 
stay is lifted, the Commission's section 337 record must be transmitted 
to the court and will be admissible in the civil action, pursuant to 28 
U.S.C. 1659(b).
    Section 210.39(b) provides for the transmission of a section 337 
record to a U.S. District Court in accordance with 28 U.S.C. 1659(b). 
To make Sec.  210.39(b) consistent with 28 U.S.C. 1659(b), the 
Commission proposes to revise the current wording of the rule to 
indicate that the Commission's record is to be transmitted to the court 
after the court dissolves the stay of the civil proceeding. To 
facilitate timely Commission compliance with a court order dissolving a 
stay of the civil action and requiring the Commission to transmit all 
or part of its section 337 record to the court pursuant to 28 U.S.C. 
1659(b), the Commission proposes to amend Sec.  210.39(b) to require 
the filing of written notice with the Secretary whenever (1) a section 
337 party/civil action litigant asks the court to issue an order 
staying the civil action, and (2) whenever the district court issues an 
order dissolving the stay and directing the Commission to transmit all 
or part of the record to the court.

Subpart G--Determinations and Actions Taken

Section 210.42

    Paragraph (a)(1) of section 210.42 generally relates to initial 
determinations on issues concerning violation of section 337. The 
Commission proposes changing paragraph (a)(1) for reasons explained

[[Page 72289]]

below with regard to sections 210.42 and 210.43.
    Paragraph (a)(2) of section 210.42 generally relates to 
declassification of information. Section 210.42(a)(2) currently does 
not conform to section 210.20 because it does not make clear that 
initial determinations on declassification may issue after any decision 
on termination, not just after the final initial determination issues. 
The Commission proposes to change Sec.  210.42(a)(2), which concerns 
initial determinations on declassification, to conform to section 
210.20, which also concerns motions for declassification.

Sections 210.42 and 210.43

Review of Final Initial Determinations
    Paragraphs (a) and (h) of section 210.42 and paragraph (d) of 
section 210.43 provide Commission deadlines for review of final initial 
determinations. The current rules concerning Commission review were 
promulgated in the 1970's when there were strict statutory deadlines 
for completion of Commission investigations, and final initial 
determinations, petitions, and responses were relatively short. Section 
337 investigations during that time period also generally concerned 
less complicated technologies.
    Final initial determinations, petitions, and responses to petitions 
have grown much lengthier over the last 30 years. At the same time, the 
number of section 337 complaints filed has grown tremendously, and the 
technology involved in the investigations has become steadily more 
complex. Recent experience indicates that these factors have combined 
to render insufficient the number of days allotted to the Commission to 
complete its investigations. Accordingly, the Commission proposes to 
amend Sec. Sec.  210.42(h)(2) and 210.43(d)(1) such that the Commission 
will have two months to determine whether to review a final initial 
determination and two additional months for final disposition of the 
investigation. In this connection, the Commission also proposes to 
amend Sec.  210.42(a)(1)(i) such that the administrative law judge 
would issue his final initial determination no later than four (4) 
months before the target date for completion of the investigation, 
regardless of whether the target date has been set at over 15 months. 
In order to accomplish these changes in Commission practice, the 
Commission proposes revisions to Sec. Sec.  210.42(a) and (h) and Sec.  
210.43(d)(1). In order to comport with the change to Sec.  
210.42(a)(1)(i) just discussed, the Commission also proposes to revise 
Sec.  210.50(a) by providing that if the target date does not exceed 16 
months from the date of institution the order of the administrative law 
judge shall be final.
    The proposed amendment to Sec.  210.43(d)(1), noted above, also 
includes a reference to the disposition of an initial determination 
under Sec.  210.42(a)(2) regarding the declassification of CBI. The 
rules currently do not expressly provide for filing a petition for 
review of initial determinations concerning declassification. Because 
such initial determinations are frequently the subject of petitions and 
responses, the Commission proposes to revise Sec.  210.42(h) to allow 
the Commission 45 days to determine whether to review initial 
determinations concerning declassification.
Review of Summary Initial Determinations
    Under the current deadlines in paragraph (h) of section 210.42 and 
paragraph (d) of section 210.43, the Commission often has insufficient 
time to act on initial determinations granting summary determination 
that could terminate the investigation on the merits if it becomes the 
final determination of the Commission. The Commission proposes to add 
new paragraph (h)(6), and amend Sec.  210.42(h)(3) to refer to new 
paragraph (h)(6), such that the Commission's time for determining 
whether to review these summary initial determinations would increase 
by 15 days, i.e., from 30 days to 45 days. As a result of the addition 
of Sec.  210.42(h)(6) and the change to Sec.  210.42(h)(3), the 
Commission also proposes to amend Sec.  210.43(d)(1), which concerns 
the grant or denial of a petition for review.

Section 210.42(i), Notice of Determination

    Paragraph (i) of section 210.42 discusses the issuance, service, 
and Federal Register publication of notices announcing the Commission's 
decision on whether it will review an initial determination. The last 
sentence of Sec.  210.42(i) indicates that the Commission will publish 
a notice in the Federal Register announcing whether the Commission has 
decided to review the initial determination only if that decision 
results in termination of the investigation in its entirety. Section 
201.10, however, states that notices will be published in the Federal 
Register, as appropriate. In fact, the Commission routinely publishes 
notices concerning its decision on whether to review a final initial 
determination because the notice usually requests submissions from the 
public on the issues of remedy, the public interest, and bonding. In 
addition, Sec.  210.49(b) (concerning publication of final 
determinations that result in the issuance of an order) and Sec.  
210.66(f) (concerning final disposition of an initial determination 
concerning temporary relief) require publication in the Federal 
Register. Accordingly, the Co