Rules of General Application and Adjudication and Enforcement, 38316-38328 [E8-14872]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 73, Number 130 (Monday, July 7, 2008)]
[Rules and Regulations]
[Pages 38316-38328]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-14872]



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 INTERNATIONAL TRADE COMMISSION

19 CFR Parts 201 and 210

[Docket No. MISC-022]


Rules of General Application and Adjudication and Enforcement

AGENCY: International Trade Commission.

ACTION: Final rule.

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SUMMARY: The United States International Trade Commission 
(``Commission'') amends its 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.

DATES: This regulation is effective August 6, 2008.

FOR FURTHER INFORMATION CONTACT: James Worth, Office of the General 
Counsel, United States International Trade Commission, telephone 202-
205-3065. 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:

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 This rulemaking seeks to update certain outdated provisions and 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 is amending 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. The Commission published a notice of 
proposed rulemaking (NOPR) in the Federal Register at 72 FR 72280 (Dec. 
20, 2007), proposing to amend the Commission's Rules of Practice and 
Procedure to make certain changes to rules of general application, 
adjudication, and enforcement.
    Although the Commission considers these rules to be procedural 
rules which are excepted from notice-and-comment under 5 U.S.C. 
553(b)(3)(A), the Commission invited the public to comment on all the 
proposed rules amendments.The NOPR requested public comment on the 
proposed rules within 60 days of publication of the NOPR. Subsequently, 
the Commission extended the deadline for submitting comments by six 
weeks. 73 FR 8836 (Feb. 15, 2008). Further, in response to a request 
from the Embassy of the People's Republic of China, the Chairman 
granted an extension by letter of March 20, 2008, to the Chinese 
government and relative Chinese enterprises to submit comments until 
April 30, 2008. The Commission received a total of five sets of 
comments, one each from the ITC Trial Lawyer's Association (ITCTLA), 
the Intellectual Property Owners Association (IPO), the American 
Intellectual Property Law Association (AIPLA), the law firm of Adduci, 
Mastriani & Schaumberg LLP (AMS), and the Ministry of Commerce of the 
People's Republic of China (MOFCOM).
    The Commission carefully considered all comments that it received. 
The Commission's response is provided below in a section-by-section 
analysis. The Commission appreciates the time and effort the 
commentators devoted to the task.
    As required by the Regulatory Flexibility Act, the Commission 
certifies that these regulatory amendments will not have a significant 
impact on small business entities.

Overview of the Amendments to the Regulations

    The final regulations contain four changes from those proposed in 
the NOPR. These changes are summarized here.
    First, with regard to Sec.  210.11(b), relating to the service of 
the complaint, the Commission has substituted the word ``complainant'' 
for ``party''. Second, with regard to Sec.  210.12(a)(9)(viii), the 
Commission has determined to require that complainants provide claim 
charts with the filing of the complaint to specify the allegations of 
infringement with regard to each independent patent claim asserted, 
rather than just one exemplary claim per patent.
    Third, with regard to Sec.  210.39, the Commission adopted the 
commentators' suggestion to require the parties to notify the 
Commission of the issuance or dissolution of a stay of a parallel 
district court proceeding only if the issuance or dissolution actually 
occurs, and to provide ten days for the parties to notify the 
Commission.
    Fourth, the Commission has withdrawn its proposal to eliminate 
reference to the position of chief administrative law judge in 
Sec. Sec.  210.15, 210.20, 210.58, and 210.75.
    A comprehensive explanation of the rule changes is provided in the 
section-by-section analysis below. The section-by-section analysis 
includes a discussion of all eleven modifications suggested by the 
commentators. Many positive comments were received for the majority of 
the 50 specific proposals in the NOPR. The proposals for which only 
positive comments were received are unchanged.

Section-by-Section Analysis

19 CFR Part 201

Subpart B--Initiation and Conduct of Investigations
Section 201.16 (Service by Overnight Delivery)
    The NOPR proposed to amend Sec.  201.16 to allow all parties one 
extra day to respond to documents served by overnight delivery, and to 
conform Sec.  201.16 to Sec. Sec.  210.6 and 210.7. AMS supports the 
proposed revision. MOFCOM suggests that the Commission amend 19 CFR 
201.16 to clarify whether or not all the parties should be served via 
the same method. MOFCOM suggests that persons located in a foreign 
country continue to be afforded ten additional calendar days to respond 
under 19 CFR 201.16, as the rule currently allows. The current rule, 
however, allows ten extra days to persons located in a foreign country 
when service is by first-class mail, and the proposed amendment does 
not affect this provision. Therefore, the rule is unchanged from the 
proposed rule.

19 CFR Part 210

Subpart A--Rules of General Applicability
Section 210.7(b)
    The NOPR proposed to amend Sec.  210.7 to require that each party 
designate one attorney or agent to receive service of process. The 
ITCTLA proposes that a party designate a single attorney to receive 
service from the Commission and from the Office of Unfair Import 
Investigations (``OUII'') of hard copies of all papers, but that the 
private parties also be authorized to agree to serve several co-counsel 
for the same parties using either electronic or hard copy means. The 
Commission has not adopted this proposal because the parties currently 
may agree to serve extra copies on each other by electronic or hard 
copy means; this practice would not be disturbed by the Commission

[[Page 38317]]

rule. MOFCOM objects to the proposed amendment on the basis that it 
would take extra time for the attorney or agent who is served a 
document to share that documents with the rest of the party's team. AMS 
supports the proposed revision. The Commission believes that the saving 
of paper, time, and labor for the Commission and the parties by 
designating one attorney or agent to receive service of process is 
beneficial and would not prejudice parties receiving documents. 
Therefore, the rule is unchanged from the proposed rule.
Subpart B--Commencement of Preinstitution Proceedings and 
Investigations
Section 210.11(b)
    The NOPR proposed to amend Sec.  210.11(b) relating to service of 
the complaint. The proposed amendment does not alter the existing 
regulatory language which describes the ability of a party to effect 
personal service: ``With leave from the presiding administrative law 
judge, a party may attempt to effect personal service of the complaint 
and notice of investigation upon a respondent, if the Secretary's 
efforts to serve the respondent have been unsuccessful. If the party 
succeeds in serving the respondent by personal service, the party must 
notify the administrative law judge and file proof of such service with 
the Secretary.'' The term ``party'' is defined in Sec.  201.2 as ``any 
person who has filed a complaint or petition on the basis of which an 
investigation has been instituted, or any person whose entry of 
appearance has been accepted pursuant to Sec.  201.11(a) or (c).'' 
Given this definition, MOFCOM states that it is unclear what ``a 
party'' refers to in Sec.  210.11(b). In light of this comment, the 
word ``complainant'' is substituted for the term ``party'' in order to 
clarify the persons affected.
Subpart C--Pleadings
Section 210.12(a)(9)(iv), (a)(10)(i), (a)(10)(ii) (Submission of 
License Agreements)
    The NOPR further proposed amending Sec.  210.12 by adding new 
paragraphs (a)(9)(iv) and (a)(10)(i) and (a)(10)(ii) to reduce the 
number of copies of license agreements that complainants must file, and 
by amending paragraphs (c)(1), (d), (f), and (g), such 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, and 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, and that 
all licensees of the asserted rights would also have to be identified 
in the complaint. The ITCTLA states that it supports the amendment of 
section 210.12(c)(1); the ITCTLA did not submit any comments with 
regard to sections 210.12(d), (f), and (g). AMS supports the proposed 
revisions. MOFCOM objects to the proposed amendment, arguing that 
respondents will typically ask for license agreements during discovery 
anyway. Because the license agreements may contain business information 
which is not essential to the allegations made against the respondents, 
the Commission has determined that the balance of interests favors 
waiting until identified respondents designate specific representatives 
to sign the administrative protective order before serving license 
agreements which are not essential to the understanding of the 
allegations made against them. Because the respondents will still 
receive the license agreements in discovery in a timely fashion, the 
Commission has determined to issue the rule unchanged from the proposed 
rule.
Section 210.12(a)(9)(viii)
    The NOPR proposed to revise Sec.  210.12(a) to require claim charts 
to be filed with the complaint to specify both allegations of 
infringement by any respondents and satisfaction of the domestic injury 
requirement by the complainant. The ITCTLA states that it supports the 
Commission's clarification that there should be a separate requirement 
for domestic industry claim charts and infringement claim charts. AMS 
supports the proposed revision. MOFCOM suggests that the Commission 
investigative attorney and the administrative law judges should ``pre-
review'' complaints to make a ``preliminary assessment of the scope of 
the claims'' and to determine whether there is prima facie evidence of 
violation.
    The Commission agrees that clarification of the scope of the claims 
at an early stage of the investigation will foster earlier resolution 
of disputes. Therefore, the Commission has determined to require a 
separate claim chart to demonstrate the allegations of infringement by 
respondents with regard to each independent claim, rather than just one 
exemplary claim per asserted patent. The Commission believes that the 
rule would not add to the burden that the complainant must already 
undertake in order to fulfill its obligations to file a non-frivolous 
complaint under existing Commission Rules 210.4(c)-(d), 19 CFR 
210.4(c)-(d), which are modeled in part on Rule 11 of the Federal Rules 
of Civil Procedure. See, e.g., 59 FR 39023-25 (August 1, 1994). In 
addition, the Commission believes that this rule would help identify 
the issues at an early stage for all parties concerned, and foster 
early settlement or disposition of disputes.
Subpart D--Motions
Subpart H--Temporary Relief
Subpart I--Enforcement Procedures and Advisory Opinions
Sections 210.15, 210.20, 210.58, and 210.75 (The Position of Chief 
Administrative Law Judge)
    The NOPR proposed to amend Sec. Sec.  210.15, 210.20(a), 210.58, 
and 210.75(b)(3) by eliminating reference to the chief administrative 
law judge. AMS does not support the proposed revision. The ITCTLA notes 
that, although there is not at present a chief administrative law 
judge, there may be a need or desire to designate a chief 
administrative law judge as the number of administrative law judges 
increases, and therefore the Commission may wish to retain this 
reference. The AIPLA has the same concerns as AMS and the ITCTLA, and 
notes that, in view of the growing caseload, the Commission has 
advertised a position for a fifth administrative law judge. The AIPLA 
observes that a chief administrative law judge could coordinate a reply 
from the administrative law judges to any suggestion posed to them. IPO 
suggests that a chief administrative law judge could increase the 
efficiency of the Commission and could aid in the training of new 
administrative law judges, could aid in consistent application of the 
Commission's rules, and could speak on behalf of the administrative law 
judges on matters such as requests for resources. AMS submits that the 
references to a chief administrative law judge do not cause harm or 
confusion even though there currently is no chief administrative law 
judge, and suggests that the rule should be maintained in order to 
provide the Commission flexibility to appoint a chief administrative 
law judge in the future. AMS notes that the Commission might find a 
chief administrative law judge to be a helpful representative for the 
administrative law judges to speak on their behalf on particular 
matters, receive suggestions or concerns, and possibly coordinate 
responsibility for certain matters relating to administrative law 
judges.

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    The proposed amendments and revisions pertaining to eliminating the 
references to chief administrative law judge are withdrawn.
Subpart E--Discovery and Compulsory Process
Section 210.28
    The NOPR proposed to amend Sec.  210.28 to conform with the 
practice in the U.S. district courts under the Federal Rules of Civil 
Procedure whereby the stenographer is given the responsibility of 
serving copies of a deposition on all parties to the case. Under 
current Commission practice, the party taking the deposition is given 
this responsibility, and the only party currently required to be served 
with a copy is the Commission investigative attorney. AMS supports the 
proposed revision. MOFCOM comments that it is unclear under the 
proposed rule when a party will be notified that a transcript of a 
deposition is available, how a party can obtain a copy, and how much 
money the party should pay. No other specific comments were received. 
Because the rule charges the stenographic reporter with the 
distribution of the transcripts, and the concomitant responsibility of 
notifying the parties of the availability of the transcripts and their 
cost, the rule is unchanged.
Subpart F--Prehearing Conferences and Hearings
Section 210.39
    The NOPR proposed 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. The proposed amendment requires that a 
party file written notice with the Commission on the same day that it 
asks the district court to stay the civil proceeding. The purpose of 
the proposed amendment is to clarify current Commission rule 210.39(b) 
and to make the rule more consistent with 28 U.S.C. 1659(b).
    The ITCTLA agrees with clarifying Sec.  210.39(b) and making it 
consistent with 28 U.S.C. 1659(b), but suggests that a party be 
required to notify the Commission only if the district court issues a 
stay of its proceedings or dissolves such a stay, stating that it would 
not be necessary to notify the Commission of a motion for a stay 
because a motion could be withdrawn or superseded by other events. The 
ITCTLA suggests an amendment to require parties to notify the 
Commission within ten days of the issuance or dissolution of a stay by 
the district court. AMS supports the ITCTLA's proposed amendment.
    The ITCTLA suggestion would require the parties to notify the 
Commission only if there were an actual change in the status of the 
district court proceeding, and would clarify the time for parties to 
notify the Commission of the imposition of the stay or dissolution of 
the stay. Because the Commission finds this clarification to be 
beneficial, the commentator's suggestion is adopted in the rule.
Sections 210.42, 210.43, and 210.51 (Setting Target Dates)
    The NOPR proposed to amend Sec.  210.42(a)(1)(i) to provide that 
the administrative law judge would issue his final initial 
determination no later than four months before the target date for 
completion of the investigation, regardless of whether the target date 
has been set at over 15 months as the current rule provides. The NOPR 
proposed to amend Sec. Sec.  210.42(h)(2) and 210.43(d)(1) to provide 
that the Commission will have two months to determine whether to review 
a final initial determination and two months for final disposition of 
the investigation in all investigations. The NOPR further proposed to 
amend Sec.  210.51(a) by providing that if the target date set by order 
of the administrative law judge does not exceed 16 months from the date 
of institution, the order of the administrative law judge shall be 
final.
    The ITCTLA comments that it believes the proposed rule would create 
a default target date for completion of most investigations of 16 
months. The ITCTLA contends that the proposed rule would be counter to 
the legislative history of the current statutory guidance on time for 
completion of investigations. The ITCTLA cites a Federal Register 
notice from twelve years ago, well before the current surge in filings, 
in which the Commission stated that target dates for completion of 
section 337 investigations should rarely exceed 15 months. 61 FR 43432 
(Aug. 13, 1996). The ITCTLA comments that the role that the Commission 
has achieved in section 337 investigations as one of the key forums for 
protection of valuable U.S. intellectual property rights rests on the 
speed and high quality of its adjudicatory process. The ITCTLA suggests 
that rather than lengthening the target date for section 337 
investigations, the Commission instead devote additional resources to 
meet the current deadlines.
    IPO comments that it believes the current rules are adequate to 
provide efficient resolution of section 337 proceedings while at the 
same time allowing for extensions of time when necessary. IPO adds that 
its members place much value in the Commission's prompt and effective 
resolution of section 337 investigations ``particularly when compared 
to the pace of typical intellectual property disputes in the U.S. 
District Court system.'' IPO comments that the proposed rule would turn 
the exception into the rule, contrary to the stated goal of efficiency. 
IPO expresses concern that the proposed rule would also open the door 
to further expansion of time limits in future, and hence would 
``proceed down a slippery slope.'' IPO relies on section 337 and its 
legislative history. IPO suggests the hiring of additional 
administrative law judges and supports the filling of any vacant 
administrative law judge positions.
    AMS does not support the revision, contending that it would 
effectively lengthen the time for completion of these investigations by 
one month, and AMS believes the proposed revision runs counter to the 
goal expressed in section 337 and its legislative history to resolve 
investigations ``at the earliest practicable time.'' AMS understands 
that the increasing number and complexity of investigations have made 
it difficult to complete all investigations in 12 to 15 months but 
suggested that the Commission keep the current practice of granting 
itself additional time on a case-by-case basis. AIPLA's comments 
identify the same concerns as AMS, the ITCTLA, and IPO.
    The Commission believes that the proposal to allow the 
administrative law judge to set a target date of 16 months by order 
rather than by initial determination would not set 16 months as the 
default length for every case nor change the current length of 
investigations, but would merely allow the administrative law judge to 
set 16 months as a target date by order where necessary. The Commission 
acknowledges that there have been certain investigations recently which 
have exceeded 15 months due to such factors as stays pending other 
proceedings and reassignment of cases due to the retirement of an 
administrative law judge, as well as the resource constraints relative 
to the recent surge in caseload. The Commission has been working to 
hire additional administrative law judges and staff and intends to 
revisit this rule after additional personnel and resources have been 
made available to the Office of Administrative Law Judges, including

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the hiring of additional administrative law judges.
    The Commission notes that historically, the statute allowed 18 
months for ``more complicated'' cases. ``More complicated'' referred to 
investigations ``of an involved nature owing to the subject matter, 
difficulty in obtaining information, the large number of parties 
involved, or other significant factors.'' 19 CFR 210.59(a) (1993). 
Typically these were investigations that required greater discovery 
because they (1) included multiple patents (and claims), (2) involved 
complex technology, and/or (3) included multiple respondents. See, 
e.g., Certain Static Random Access Memories and Integrated Circuits 
Devices Containing Same, Processes for Making Same, Components Thereof, 
and Products Containing Same, Inv. No. 337-TA-325, Order No. 5, 1991 WL 
788641 (May 9, 1991) (``The ITC, however, must adjudicate all four 
patents and do so in a fraction of the time which will be available in 
the District Court in Texas. An additional six months is, therefore, 
not only advisable but clearly essential. In sum, as with other Section 
337 investigations involving semiconductors which have been designated 
as `complicated' by the Commission, this case should also be designated 
`more complicated' in order to develop an adequate record.''), 
unreviewed by Commission Notice, 56 FR 28173 (June 19, 1991).
    Historical practice shows that the ``more complicated'' designation 
was used only where necessary. See Certain Integrated Circuit 
Telecommunication Chips and Products Containing Same, Including Dialing 
Apparatus, Inv. No. 337-TA-337, Order No. 52, 1992 WL 811697 (Aug. 5, 
1992) (recognizing that the Commission would not designate every case 
``more complicated'') (``The `more complicated' designation should be 
used sparingly and only when clearly required.''), unreviewed by 
Commission Notice, 57 FR 40922 (Sept. 8, 1992). A majority of the cases 
filed today meet the criteria for ``more complicated'' case under 
former Commission rule Sec.  210.59(a) (1993). We also note the 
importance of administrative judges allowing sufficient time for 
discovery.
    The amendment to allow investigation target dates to be set at 16 
months by order was proposed in view of the proposed four-month period 
for the Commission to complete its review. However, nothing in the 
proposed rule mandates a 16-month target date in every case, and the 
Commission does not expect the judges to set a 16-month target date in 
every investigation. Moreover, the administrative law judges currently 
have authority to set target dates by initial determination longer than 
15 months. Therefore, we do not expect that this change will increase 
the number of investigations with target dates longer than 15 months. 
The rule change, however, will streamline Commission practice by making 
it less likely that the Commission will need to extend its ``whether to 
review'' deadline. Moreover, the parties will have a more predictable 
date for responding to Commission requests for any briefing on review 
when the Commission deadline for determining whether to review a final 
ID is 60 days in every investigation. Therefore, the rule is unchanged 
from the proposed rule.
Section 210.43(b)(1)
    The NOPR proposed to amend Sec.  210.43(b)(1) to require that any 
petition for review exceeding 50 pages in length be accompanied by a 
summary not to exceed ten pages, that responses to petitions should 
similarly contain such summaries, and that there be a 100-page limit 
exclusive of the summaries for the length of petitions for review of 
final initial determinations on a matter other than temporary relief. 
The ITCTLA opposes the proposed rule because initial determinations and 
their associated findings of fact may themselves be hundreds of pages 
and hence would be hard to address in a 100-page petition for review. 
In this connection, the ITCTLA notes that the technology itself may be 
complex and difficult to address in 100 pages, and that under current 
Sec.  210.43(b)(3), issues not addressed in a petition for review will 
be deemed waived. AIPLA makes similar observations and further notes 
that some investigations involve multiple parties, multiple patents, 
multiple claims and claim limitations, and contested issues of claim 
construction, validity, and infringement. AIPLA supports the proposal 
that a party must include a summary to provide an overview of longer 
petitions for review. AMS comments that it does not support the 
proposed rule because some complex investigations have initial 
determinations which would be too lengthy to address in a 100-page 
petition for review. AMS also notes that it would be necessary to 
address an issue to preserve it for an appeal to the Federal Circuit, 
as reflected in the proposed amendment to Sec.  210.43(b)(3). MOFCOM 
also comments that it believes 100 pages are insufficient.
    The commentators' main concern is the need for the parties to 
preserve issues for appeal before the Commission and the U.S. Court of 
Appeals for the Federal Circuit. Yet the Federal Rules of Appellate 
Procedure, which apply to the Federal Circuit, limit principal briefs 
to 30 pages, 14,000 words, or 1,300 lines of text if monospaced. Rule 
7(A), (B). Given the court's page limitations, the Commission believes 
it is reasonable to conclude that a 100-page petition for review could 
accommodate all issues which a party may wish to preserve for a 
possible appeal to the Federal Circuit. Moreover, the Commission 
believes that the page limits will increase the quality of analysis by 
encouraging the parties to focus on what they perceive to be reversible 
errors. Therefore, the rules are unchanged from the proposed rule.
Subpart I--Enforcement Procedures and Advisory Opinions
Section 210.71, 210.75, and 210.79
    The NOPR proposed to amend Sec.  210.71 and 210.79 and to further 
amend Sec.  210.75 to clarify the procedures for the analysis of 
changed conditions, for the filing of enforcement proceedings, and for 
requests for advisory opinions. Specifically, the NOPR proposed to 
amend Sec.  210.75 relating to enforcement of Commission orders to 
clarify that under section 337, the Commission may impose its own civil 
penalty which it may enforce in district court rather than having to 
have the district court impose the civil penalty in the first instance. 
MOFCOM comments that ``it is confusing that the ITC, as an 
administrative authority, is permitted to initiate a civil action based 
on an administrative order.'' Section 210.75 is based on the statutory 
authority granted by Congress to the Commission to bring civil actions 
in U.S. district court to enforce its orders and in aid of its 
jurisdiction under 19 U.S.C. 1333(c) and 1337(f)(2). The role of the 
courts in the enforcement of agency orders is important to agencies 
where necessary to ensure compliance with the administration of 
statutory schemes by agencies. AMS supports the revisions. No other 
comments were received. Therefore, the rules are unchanged.

Other Suggestions

    MOFCOM also suggests that the Commission establish a procedure to 
suspend Commission investigations at the request of a respondent when 
the USPTO has instituted a reexamination proceeding of a patent at 
issue. MOFCOM further suggests that the Commission analyze the effect 
of recent jurisprudence in eBay Inc v. MercExchange, L.L.C. on the 
general exclusion order procedure. In addition, AIPLA suggests that the 
Commission

[[Page 38320]]

promulgate a rule to govern the manner in which parties serve each 
other with documents electronically, whereas the Commission currently 
allows the parties to stipulate rules for electronic service among 
themselves. The Commission appreciates the suggestions for further 
areas of rulemaking. However, because these issues were not the subject 
of any proposed rule, they will not be addressed in this rulemaking.

List of Subjects

19 CFR Part 201

    Administration practice and procedure, Reporting and recordkeeping 
requirements.

19 CFR Part 210

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


0
For the reasons stated in the preamble, 19 CFR parts 201 and 210 are 
amended as set forth below:

PART 201--RULES OF GENERAL APPLICATION

0
1. The authority citation for part 201 continues to read as follows:

    Authority: Sec. 335 of the Tariff Act of 1930 (19 U.S.C. 1335), 
and sec. 603 of the Trade Act of 1974 (19 U.S.C. 2482), unless 
otherwise noted.


0
2. Amend Sec.  201.16 by redesignating paragraph (e) as paragraph (f) 
and adding new paragraph (e) to read as follows:


Sec.  201.16  Service of process and other documents.

* * * * *
    (e) Additional time after service by overnight delivery. Whenever a 
party or Federal Agency or department has the right or is required to 
perform some act or take some action within a prescribed period after 
the service of a document upon it and the document is served by 
overnight delivery, one (1) day shall be added to the prescribed 
period. ``Overnight delivery'' is defined as delivery by the next 
business day.
* * * * *

PART 210--ADJUDICATION AND ENFORCEMENT

0
1. The authority citation for part 210 continues to read as follows:

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

Subpart A--Rules of General Applicability

0
2. Amend Sec.  210.3 by adding a definition of ``U.S. Customs Service'' 
in alphabetical order to read as follows:


Sec.  210.3  Definitions.

* * * * *
    U.S. Customs Service means U.S. Customs and Border Protection.


0
3. Amend Sec.  210.4 by revising paragraph (f)(1)(i) to read as 
follows:


Sec.  210.4  Written submission; representations; sanctions.

* * * * *
    (f) Specifications; filing of documents. (1)(i) Written submissions 
that are addressed to the Commission during an investigation or a 
related proceeding shall comply with Sec.  201.8 of this chapter, 
except for the provisions regarding the number of copies to be 
submitted. The required number of copies shall be governed by paragraph 
(f)(2) of this section. Written submissions may be produced by any 
process which produces a clear black image on white paper. Typed matter 
shall not exceed 6\1/2\ by 9\1/2\ inches using 11-point or larger type 
and shall be double-spaced between each line of text using the standard 
of 6 lines of type per inch. Text and footnotes shall be in the same 
size type. Quotations more than two lines long in the text or footnotes 
may be indented and single-spaced. Headings and footnotes may be 
single-spaced.
* * * * *


0
4. Amend Sec.  210.7 by:
0
a. Redesignating paragraph (b) as paragraph (c); and
0
b. Adding paragraphs (a)(3) and (b).
    The additions and revisions read as follows:


Sec.  210.7  Service of process and other documents; publication of 
notices.

    (a) * * *
    (3) Whenever the Commission effects service of documents issued by 
or on behalf of the Commission or the administrative law judge upon the 
private parties by overnight delivery, service upon the Office of 
Unfair Import Investigations shall also be deemed to have occurred by 
overnight delivery.
    (b) Designation of a single attorney or representative for service 
of process. The service list prepared by the Secretary for each 
investigation will contain the name and address of no more than one 
attorney or other representative for each party to the investigation. 
In the event that two or more attorneys or other persons represent one 
party to the investigation, the party must select one of their number 
to be the lead attorney or representative for service of process. The 
lead attorney or representative for service of process shall state, at 
the time of the filing of its entry of appearance with the Secretary, 
that it has been so designated by the party it represents. (Only those 
persons authorized to receive confidential business information under a 
protective order issued pursuant to Sec.  210.34(a) are eligible to be 
included on the service list for documents containing confidential 
business information.)
* * * * *

Subpart B--Initiation and Conduct of Investigations

0
5. Amend Sec.  210.8 by adding introductory text and revising paragraph 
(a) to read as follows:


Sec.  210.8  Commencement of preinstitution proceedings.

    A preinstitution proceeding is commenced by filing with the 
Secretary a signed original complaint and the requisite number of true 
copies.
    (a)(1) Unless complainant requests temporary relief, the 
complainant shall file with the Secretary:
    (i) Twelve (12) copies of the nonconfidential version of the 
complaint along with 6 copies of the nonconfidential exhibits, and 6 
copies of the confidential exhibits;
    (ii) Twelve (12) copies of the confidential version of the 
complaint, if any;
    (iii) For each proposed respondent, one copy of the nonconfidential 
version of the complaint and one copy of the confidential version of 
the complaint, if any, along with one copy of the nonconfidential 
exhibits and one copy of the confidential exhibits, and
    (iv) For the government of the foreign country in which each 
proposed respondent is located as indicated in the Complaint, one copy 
of the nonconfidential version of the complaint.

    Note to paragraph (a)(1): The same requirements apply for the 
filing of a supplement to the complaint.

    (2) If the complainant is seeking temporary relief, the complainant 
shall file with the Secretary:
    (i) Twelve (12) copies of the nonconfidential version of the 
complaint along with 6 copies of the nonconfidential exhibits, and 6 
copies of the confidential exhibits;
    (ii) Twelve (12) copies of the confidential version of the 
complaint, if any;

[[Page 38321]]

    (iii) For each proposed respondent, one copy of the nonconfidential 
version of the complaint and one copy of the confidential version of 
the complaint, if any, along with one copy of the confidential 
exhibits;
    (iv) Twelve (12) copies of the nonconfidential version of the 
motion for temporary relief along with 6 copies of any nonconfidential 
exhibits filed with the motion and 6 copies of the confidential 
exhibits, if any, filed with the motion;
    (v) Twelve (12) copies of the confidential version of the motion 
for temporary relief, if any; and
    (vi) For each proposed respondent, one copy of the confidential 
version of the motion along with one copy of the confidential exhibits 
filed with the motion.

    Note to paragraph (a)(2): The same requirements apply for the 
filing of a supplement to the complaint or a supplement to the 
motion for temporary relief.

* * * * *


Sec.  210.10  [Amended]

0
6. Amend Sec.  210.10 by removing the last two sentences of paragraph 
(a)(5)(i).

0
7. Revise Sec.  210.11 to read as follows:


Sec.  210.11  Service of complaint and notice of investigation.

    (a)(1) Unless the Commission institutes temporary relief 
proceedings, upon institution of an investigation, the Commission shall 
serve:
    (i) Copies of the nonconfidential version of the complaint, the 
nonconfidential exhibits, and the notice of investigation upon each 
respondent; and
    (ii) Copies of the nonconfidential version of the complaint and the 
notice of investigation upon the embassy in Washington, DC of the 
country in which each proposed respondent is located as indicated in 
the Complaint.
    (2) If the Commission institutes temporary relief proceedings, upon 
institution of an investigation, the Commission shall serve:
    (i) Copies of the nonconfidential version of the complaint and the 
notice of investigation upon each respondent; and
    (ii) A copy of the notice of investigation upon the embassy in 
Washington, DC of the country in which each proposed respondent is 
located as indicated in the Complaint.
    (3) All respondents named after an investigation has been 
instituted and the governments of the foreign countries in which they 
are located as indicated in the complaint shall be served as soon as 
possible after the respondents are named.
    (4) 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 agencies and departments as the 
Commission considers appropriate.
    (b) With leave from the presiding administrative law judge, a 
complainant may attempt to effect personal service of the complaint and 
notice of investigation upon a respondent, if the Secretary's efforts 
to serve the respondent have been unsuccessful. If the complainant 
succeeds in serving the respondent by personal service, the complainant 
must notify the administrative law judge and file proof of such service 
with the Secretary.

Subpart C--Pleadings

0
8. Amend Sec.  210.12 by:
0
a. Republishing the introductory text of paragraph (a);
0
b. Revising paragraphs (a)(1), (a)(6)(i) introductory text, 
(a)(6)(i)(C), and (a)(9);
0
c. Redesignating paragraph (a)(10) as paragraph (a)(11);
0
d. Adding new paragraph (a)(10);
0
e. Revising paragraph (c);
0
f. Revising the first sentence of paragraph (d);
0
g. Revising paragraphs (f), and (g);
0
h. Redesignating existing paragraph (h) as paragraph (j); and
0
i. Adding new paragraphs (h) and (i).
    The additions and revisions read as follows:


Sec.  210.12  The complaint.

    (a) Contents of the complaint. In addition to conforming with the 
requirements of Sec.  201.8 of this chapter and Sec. Sec.  210.4 and 
210.5 of this part, the complaint shall--
    (1) Be under oath and signed by the complainant or his duly 
authorized officer, attorney, or agent, with the name, address, and 
telephone number of the complainant and any such officer, attorney, or 
agent given on the first page of the complaint, and include a statement 
attesting to the representations in Sec.  210.4(c)(1) through (3);
* * * * *
    (6)(i) If the complaint alleges a violation of section 337 based on 
infringement of a U.S. patent, or a federally registered copyright, 
trademark, mask work, or vessel hull design, under section 337(a)(1) 
(B), (C), (D), or (E) of the Tariff Act of 1930, include a description 
of the relevant domestic industry as defined in section 337(a)(3) that 
allegedly exists or is in the process of being established, including 
the relevant operations of any licensees. Relevant information includes 
but is not limited to:
* * * * *
    (C) Substantial investment in the exploitation of the subject 
patent, copyright, trademark, mask work, or vessel hull design, 
including engineering, research and development, or licensing; or
* * * * *
    (9) Include, when a complaint is based upon the infringement of a 
valid and enforceable U.S. patent--
    (i) The identification of each U.S. patent and a certified copy 
thereof (a legible copy of each such patent will suffice for each 
required copy of the complaint);
    (ii) The identification of the ownership of each involved U.S. 
patent and a certified copy of each assignment of each such patent (a 
legible copy thereof will suffice for each required copy of the 
complaint);
    (iii) The identification of each licensee under each involved U.S. 
patent;
    (iv) A copy of each license agreement (if any) for each involved 
U.S. patent that complainant relies upon to establish its standing to 
bring the complaint or to support its contention that a domestic 
industry as defined in section 337(a)(3) exists or is in the process of 
being established as a result of the domestic activities of one or more 
licensees;
    (v) When known, a list of each foreign patent, each foreign patent 
application (not already issued as a patent) and each foreign patent 
application that has been denied, abandoned or withdrawn corresponding 
to each involved U.S. patent, with an indication of the prosecution 
status of each such patent application;
    (vi) A nontechnical description of the invention of each involved 
U.S. patent;
    (vii) A reference to the specific claims in each involved U.S. 
patent that allegedly cover the article imported or sold by each person 
named as violating section 337 of the Tariff Act of 1930, or the 
process under which such article was produced;
    (viii) A showing that each person named as violating section 337 of 
the Tariff Act of 1930 is importing or selling the article covered by, 
or produced under the involved process covered by, the above specific 
claims of each involved U.S. patent. The complainant shall make such 
showing by appropriate allegations, and when practicable, by a chart 
that applies each asserted independent claim of each involved U.S. 
patent to a representative involved

[[Page 38322]]

article of each person named as violating section 337 of the Tariff Act 
or to the process under which such article was produced;
    (ix) A showing that an industry in the United States, relating to 
the articles protected by the patent exists or is in the process of 
being established. The complainant shall make such showing by 
appropriate allegations, and when practicable, by a chart that applies 
an exemplary claim of each involved U.S. patent to a representative 
involved domestic article or to the process under which such article 
was produced; and
    (x) Drawings, photographs, or other visual representations of both 
the involved domestic article or process and the involved article of 
each person named as violating section 337 of the Tariff Act of 1930, 
or of the process utilized in producing the imported article, and, when 
a chart is furnished under paragraphs (a)(9)(viii) and (a)(9)(ix) of 
this section, the parts of such drawings, photographs, or other visual 
representations should be labeled so that they can be read in 
conjunction with such chart; and
    (10) Include, when a complaint is based upon the infringement of a 
federally registered copyright, trademark, mask work, or vessel hull 
design--
    (i) The identification of each licensee under each involved 
copyright, trademark, mask work, and vessel hull design;
    (ii) A copy of each license agreement (if any) that complainant 
relies upon to establish its standing to bring the complaint or to 
support its contention that a domestic industry as defined in section 
337(a)(3) exists or is in the process of being established as a result 
of the domestic activities of one or more licensees.
* * * * *
    (c) Additional material to accompany each patent-based complaint. 
There shall accompany the submission of the original of each complaint 
based upon the alleged unauthorized importation or sale of an article 
covered by, or produced under a process covered by, the claims of a 
valid U.S. patent the following:
    (1) One certified copy of the U.S. Patent and Trademark Office 
prosecution history for each involved U.S. patent, plus three 
additional copies thereof; and
    (2) Four copies of each patent and applicable pages of each 
technical reference mentioned in the prosecution history of each 
involved U.S. patent.
    (d) Additional material to accompany each registered trademark-
based complaint. There shall accompany the submission of the original 
of each complaint based upon the alleged unauthorized importation or 
sale of an article covered by a federally registered trademark, one 
certified copy of the Federal registration and three additional copies, 
and one certified copy of the prosecution history for each federally 
registered trademark. * * *
* * * * *
    (f) Additional material to accompany each copyright-based 
complaint. There shall accompany the submission of the original of each 
complaint based upon the alleged unauthorized importation or sale of an 
article covered by a copyright one certified copy of the Federal 
registration and three additional copies;
    (g) Additional material to accompany each registered mask work-
based complaint. There shall accompany the submission of the original 
of each complaint based upon the alleged unauthorized importation or 
sale of a semiconductor chip in a manner that constitutes infringement 
of a Federally registered mask work, one certified copy of the Federal 
registration and three additional copies;
    (h) Additional material to accompany each vessel hull design-based 
complaint. There shall accompany the submission of the original of each 
complaint based upon the alleged unauthorized importation or sale of an 
article covered by a vessel hull design, one certified copy of the 
Federal registration (including all deposited drawings, photographs, or 
other pictorial representations of the design), and three additional 
copies;
    (i) Initial disclosures. Complainant shall serve on each respondent 
represented by counsel who has agreed to be bound by the terms of the 
protective order one copy of each document submitted with the complaint 
pursuant to Sec.  210.12(c) through (h) within five days of service of 
a notice of appearance and agreement to be bound by the terms of the 
protective order; and
* * * * *


Sec.  210.13  [Amended]

0
9. Amend Sec.  210.13 by removing the words ``U.S. letters patent'' and 
adding in their place the words ``U.S. patent'' in the following 
locations:
0
a. Paragraph (b) introductory text,
0
b. Paragraph 210.13(b)(1) (three occurrences), and
0
c. Paragraph 210.13(b)(3).

Subpart D--Motions

0
10. Amend Sec.  210.18 by revising paragraph (a) to read as follows:


Sec.  210.18  Summary determinations.

    (a) Motions for summary determinations. Any party may move with any 
necessary supporting affidavits for a summary determination in its 
favor upon all or any part of the issues to be determined in the 
investigation. Counsel or other representatives in support of the 
complaint may so move at any time after 20 days following the date of 
service of the complaint and notice instituting the investigation. Any 
other party or a respondent may so move at any time after the date of 
publication of the notice of investigation in the Federal Register. Any 
such motion by any party in connection with the issue of permanent 
relief, however, must be filed at least 60 days before the date fixed 
for any hearing provided for in Sec.  210.36(a)(1). Notwithstanding any 
other rule, the deadline for filing summary determinations shall be 
computed by counting backward at least 60 days including the first 
calendar day prior to the date the hearing is scheduled to commence. If 
the end of the 60 day period falls on a weekend or holiday, the period 
extends until the end of the next business day. Under exceptional 
circumstances and upon motion, the presiding administrative law judge 
may determine that good cause exists to permit a summary determination 
motion to be filed out of time.
* * * * *

0
11. Amend Sec.  210.21 by revising:
0
a. Paragraph (a);
0
b. The last sentence of paragraphs (b)(2), (c) introductory text, and 
(d);
0
c. The third sentence of paragraph (c)(2)(ii); and
0
d. Paragraph (e).
    The revisions read as follows:


Sec.  210.21  Termination of investigations.

    (a) Motions for termination. (1) Any party may move at any time 
prior to the issuance of an initial determination on violation of 
section 337 of the Tariff Act of 1930 to terminate an investigation in 
whole or in part as to any or all respondents, on the basis of 
withdrawal of the complaint or certain allegations contained therein, 
or for good cause other than the grounds listed in paragraph (a)(2) of 
this section. A motion for termination of an investigation based on 
withdrawal of the complaint shall contain a statement that there are no 
agreements, written or oral, express or implied between the parties 
concerning the subject matter of the investigation, or if there are any 
agreements concerning the subject matter of the investigation, all such 
agreements shall be identified, and if

[[Page 38323]]

written, a copy shall be filed with the Commission along with the 
motion. If the agreement contains confidential business information 
within the meaning of Sec.  201.6(a) of this chapter, at least one copy 
of the agreement with such information deleted shall accompany the 
motion, in addition to a copy of the confidential version. The 
presiding administrative law judge may grant the motion in an initial 
determination upon such terms and conditions as he deems proper.
    (2) Any party may move at any time to terminate an investigation in 
whole or in part as to any or all respondents on the basis of a 
settlement, a licensing or other agreement, including an agreement to 
present the matter for arbitration, or a consent order, as provided in 
paragraphs (b), (c) and (d) of this section.
    (b) Termination by Settlement. * * *
    (2) * * * 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. * * * Termination by 
consent order need not constitute a determination as to violation of 
section 337.
    (2) * * *
    (ii) * * * Termination by consent order need not constitute a 
determination as to violation of section 337. * * *
* * * * *
    (d) Termination based upon arbitration agreement. * * * Termination 
based on an arbitration agreement does not constitute a determination 
as to violation of section 337 of the Tariff Act of 1930.
    (e) Effect of termination. Termination issued by the administrative 
law judge shall constitute an initial determination.


Sec.  210.22  [Removed and Reserved]

0
12. Remove and reserve Sec.  210.22.

0
13. Amend Sec.  210.25 by revising the second sentence of paragraph (f) 
to read as follows:


Sec.  210.25  Sanctions.

* * * * *
    (f) * * * If the administrative law judge defers his adjudication 
in such a manner, his ruling on the motion for sanctions must be in the 
form of a recommended determination and shall be issued no later than 
30 days after issuance of the Commission's final determination on 
violation of section 337 or termination of the investigation. * * *

Subpart E--Discovery and Compulsory Process

0
14. Amend Sec.  210.28 by revising the seventh and eighth sentences of 
paragraph (d), revising the first sentence of paragraph (g), and 
revising paragraph (i)(4) to read as follows:


Sec.  210.28  Depositions.

* * * * *
    (d) Taking of deposition. * * * When a deposition is recorded by 
other than stenographic means and is thereafter transcribed, the person 
transcribing it shall certify that the person heard the witness sworn 
on the recording and that the transcript is a correct writing of the 
recording. Thereafter, upon payment of reasonable charges therefor, 
that person shall furnish a copy of the transcript or other recording 
of the deposition to any party or to the deponent. * * *
* * * * *
    (g) Admissibility of depositions. The fact that a deposition is 
taken and served upon the Commission investigative attorney as provided 
in this section does not constitute a determination that it is 
admissible in evidence or that it may be used in the investigation. * * 
*
* * * * *
    (i) * * *
    (4) As to completion and return of deposition. Errors and 
irregularities in the manner in which the testimony is transcribed or 
the deposition is prepared, signed, certified, sealed, indorsed, 
transmitted, served, or otherwise dealt with by the person before whom 
it is taken are waived unless a motion to suppress the deposition or 
some part thereof is made with reasonable promptness after such defect 
is, or with due diligence might have been, ascertained.

0
15. Amend Sec.  210.29 by revising the fourth sentence of paragraph 
(b)(2) to read as follows:


Sec.  210.29  Interrogatories.

* * * * *
    (b) * * *
    (2) * * * The party upon whom the interrogatories have been served 
shall serve a copy of the answers and objections, if any, within ten 
days of service of the interrogatories or within the time specified by 
the administrative law judge. * * *
* * * * *

0
16. Amend Sec.  210.30 by revising the first sentence of paragraph 
(b)(2) to read as follows:


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

* * * * *
    (b) * * *
    (2) The party upon whom the request is served shall serve a written 
response within 10 days or the time specified by the administrative law 
judge. * * *
* * * * *

0
17. Amend Sec.  210.31 by revising the second sentence of paragraph (b) 
and the last sentence of paragraph (d) to read as follows:


Sec.  210.31  Requests for admission.

* * * * *
    (b) Answers and objections to requests for admission. * * * The 
matter may be deemed admitted unless, within 10 days or the period 
specified by the administrative law judge, the party to whom the 
request is directed serves upon the party requesting the admission a 
sworn written answer or objection addressed to the matter. * * *
* * * * *
    (d) Effect of admissions; withdrawal or amendment of admission. * * 
* Any admission made by a party under this section is for the purpose 
of the pending investigation and any related proceeding as defined in 
Sec.  210.3 of this chapter.

0
18. Amend Sec.  210.32 by revising paragraph (g) to read as follows:


Sec.  210.32  Subpoenas.

* * * * *
    (g) Obtaining judicial enforcement. In order to obtain judicial 
enforcement of a subpoena issued under paragraphs (a)(3) or (c)(2) of 
this section, the administrative law judge shall certify to the 
Commission, on motion or sua sponte, a request for such enforcement. 
The request shall be accompanied by copies of relevant papers and a 
written report from the administrative law judge concerning the 
purpose, relevance, and reasonableness of the subpoena. If the request, 
relevant papers, or written report contain confidential business 
information, the administrative law judge shall certify nonconfidential 
copies along with the confidential versions. The Commission will 
subsequently issue a notice stating whether it has granted the request 
and authorized its Office of the General Counsel to seek such 
enforcement.

0
19. Amend Sec.  210.34 by:
0
a. Revising the section heading of section 210.34;
0
b. Adding the designation ``Note to paragraph (c):'' to the 
undesignated text at the end of paragraph (c);
0
c. Revising the newly designated note to paragraph (c);
0
d. Revising paragraph (d); and
0
e. Adding new paragraph (e).
    The additions and revisions read as follows:

[[Page 38324]]

Sec.  210.34  Protective orders; reporting requirement; sanctions and 
other actions.

* * * * *
    (c) * * *
    (5) * * *

    Note to paragraph (c): The issue of whether sanctions should be 
imposed may be raised on a motion by a party, the administrative law 
judge's own motion, or the Commission's own initiative in accordance 
with Sec.  210.25(a)(2). Parties, including the party that 
identifies an alleged breach or makes a motion for sanctions, and 
the Commission shall treat the identity of the alleged breacher as 
confidential business information unless the Commission issues a 
public sanction. The identity of the alleged breacher means the name 
of any individual against whom allegations are made. The Commission 
or administrative law judge shall allow the parties to make written 
submissions and, if warranted, to present oral argument bearing on 
the issues of violation of a protective order and sanctions 
therefor. If before an administrative law judge, any determination 
on sanctions of the type enumerated in paragraphs (c)(1) through (4) 
of this section shall be in the form of a recommended determination. 
When the motion is addressed to the administrative law judge, he 
shall grant or deny a motion for sanctions under paragraph (c)(5) of 
this section by issuing an order.

    (d) Reporting requirement. Each person who is subject to a 
protective order issued pursuant to paragraph (a) of this section shall 
report in writing to the Commission immediately upon learning that 
confidential business information disclosed to him or her pursuant to 
the protective order is the subject of:
    (1) A subpoena;
    (2) A court or an administrative order (other than an order of a 
court reviewing a Commission decision);
    (3) A discovery request;
    (4) An agreement; or
    (5) Any other written request, if the request or order seeks 
disclosure, by him or any other person, of the subject confidential 
business information to a person who is not, or may not be, permitted 
access to that information pursuant to either a Commission protective 
order or Sec.  210.5(b).

    Note to paragraph (d): This reporting requirement applies only 
to requests and orders for disclosure made for use of confidential 
business information in non-Commission proceedings.

    (e) Sanctions and other actions. After providing notice and an 
opportunity to comment, the Commission may impose a sanction upon any 
person who willfully fails to comply with paragraph (d) of this 
section, or it may take other action.

Subpart F--Prehearing Conferences and Hearings

0
20. Amend Sec.  210.35 by redesignating existing paragraphs (a)(2) 
through (6) as (a)(3) through (7), respectively; and adding new 
paragraph (a)(2) to read as follows:


Sec.  210.35  Prehearing conferences.

    (a) * * *
    (2) Negotiation, compromise, or settlement of the case, in whole or 
in part;
* * * * *

0
21. Amend Sec.  210.38 by revising paragraphs (a) and (d) to read as 
follows:


Sec.  210.38  Record.

    (a) Definition of the record. The record shall consist of all 
pleadings, the notice of investigation, motions and responses, all 
briefs and written statements, and other documents and things properly 
filed with the Secretary, in addition to all orders, notices, and 
initial determinations of the administrative law judge, orders and 
notices of the Commission, hearing and conference transcripts, evidence 
admitted into the record (including physical exhibits), and any other 
items certified into the record by the administrative law judge or the 
Commission.
* * * * *
    (d) Certification of record. The record, including all physical 
exhibits entered into evidence or such photographic reproductions 
thereof as the administrative law judge approves, shall be certified to 
the Commission by the administrative law judge upon his filing of an 
initial determination or at such earlier time as the Commission may 
order.

0
22. Amend Sec.  210.39 by revising paragraph (b) to read as follows:


Sec.  210.39  In camera treatment of confidential information.

* * * * *
    (b) Transmission of certain Commission records to district court. 
(1) In a civil action involving parties that are also parties to a 
proceeding before the Commission under section 337 of the Tariff Act of 
1930, at the request of a party to a civil action that is also a 
respondent in the proceeding before the Commission, the district court 
may stay, until the determination of the Commission becomes final, 
proceedings in the civil action with respect to any claim that involves 
the same issues involved in the proceeding before the Commission under 
certain conditions. If such a stay is ordered by the district court, 
after the determination of the Commission becomes final and the stay is 
dissolved, the Commission shall certify to the district court such 
portions of the record of its proceeding as the district court may 
request. Notwithstanding paragraph (a) of this section, the in camera 
record may be transmitted to a district court and be admissible in a 
civil action, subject to such protective order as the district court 
determines necessary, pursuant to 28 U.S.C. 1659.
    (2) To facilitate timely compliance with any court order requiring 
the Commission to transmit all or part of the record of its section 337 
proceedings to the court, as described in paragraph (b)(1) of this 
section, a party that requests the court to issue an order staying the 
civil action or an order dissolving the stay and directing the 
Commission to transmit all or part of the record to the court must file 
written notice of the issuance or dissolution of a stay with the 
Commission Secretary within 10 days of the issuance or dissolution of a 
stay by the district court.
* * * * *

Subpart G--Determinations and Actions Taken

0
23. Amend Sec.  210.42 by revising paragraphs (a)(1)(i), (a)(2), 
(h)(2), (h)(3), and (i), and adding paragraph (h)(6) to read as 
follows:


Sec.  210.42  Initial determinations.

    (a)(1)(i) On issues concerning violation of section 337. Unless 
otherwise ordered by the Commission, the administrative law judge shall 
certify the record to the Commission and shall file an initial 
determination on whether there is a violation of section 337 of the 
Tariff Act of 1930 no later than four (4) months before the target date 
set pursuant to Sec.  210.51(a).
* * * * *
    (2) On certain motions to declassify information. The decision of 
the administrative law judge granting a motion to declassify 
information, in whole or in part, shall be in the form of an initial 
determination as provided in Sec.  210.20(b).
* * * * *
    (h) * * *
    (2) An initial determination under Sec.  210.42(a)(1)(i) shall 
become the determination of the Commission 60 days after the date of 
service of the initial determination, unless the Commission within 60 
days after the date of such service shall have ordered review of the 
initial determination or certain issues therein or by order has changed 
the effective date of the initial

[[Page 38325]]

determination. The findings and recommendations made by the 
administrative law judge in the recommended determination issued 
pursuant to Sec.  210.42(a)(1)(ii) will be considered by the Commission 
in reaching determinations on remedy and bonding by the respondents 
pursuant to Sec.  210.50(a).
    (3) An initial determination filed pursuant to Sec.  210.42(c) 
shall become the determination of the Commission 30 days after the date 
of service of the initial determination, except as provided for in 
paragraph (h)(5) and paragraph (h)(6) of this section, Sec.  
210.50(d)(3), and Sec.  210.70(c), unless the Commission, within 30 
days after the date of such service shall have ordered review of the 
initial determination or certain issues therein or by order has changed 
the effective date of the initial determination.
* * * * *
    (6) The disposition of an initial determination filed pursuant to 
Sec.  210.42(c) which grants a motion for summary determination that 
would terminate the investigation in its entirety if it were to become 
the Commission's final determination, shall become the final 
determination of the Commission 45 days after the date of service of 
the initial determination, unless the Commission has ordered review of 
the initial determination or certain issues therein, or by order has 
changed the effective date of the initial determination.
    (i) Notice of determination. A notice stating that the Commission's 
decision on whether to review an initial det