Rules of General Application, Adjudication, and Enforcement, 41120-41132 [2012-16603]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 77, Number 134 (Thursday, July 12, 2012)]
[Proposed Rules]
[Pages 41120-41132]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16603]


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INTERNATIONAL TRADE COMMISSION

19 CFR Parts 201 and 210


Rules of General Application, 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 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. on September 10, 2012.

ADDRESSES: You may submit comments, identified by docket number MISC-
040, 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.
--Email: james.worth@usitc.gov. Include docket number MISC-040 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-040), along with a cover letter stating the 
nature of the commenter's interest in the proposed 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 should 
be submitted to Lisa R. Barton, Acting 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: James Worth, telephone 202-205-3065, 
Office of the General Counsel, United States International Trade 
Commission. 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, a section-by-section explanation 
of the proposed amendments to parts 201 and 210, and a description of 
the proposed amendments to the rules. The Commission encourages members 
of the public to comment on whether the language of the proposed 
amendments is sufficiently clear for users to understand, in addition 
to any other comments they wish to make on the proposed amendments.
    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 applicable 
requirements of 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 improve 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 was undertaken 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.
    On February 14, 2012, at 77 FR 8114, the Commission published a 
Plan for Retrospective Analysis of Existing Rules. This plan was issued 
in response to Executive Order 13579 of July 11, 2011, and established 
a process under which the Commission will periodically review its 
significant regulations to determine whether any such regulations 
should be modified, streamlined, expanded, or repealed so as to make 
the agency's regulatory program more effective or less burdensome in 
achieving regulatory objectives. During the two years following the 
publication of the plan, the Commission expects to

[[Page 41121]]

review a number of aspects of its rules. This includes a general review 
of existing regulations in 19 CFR Parts 201, 207, and 210. The current 
notice of proposed rulemaking is consistent with the plan to ensure 
that the Commission's rules are effective, although it should be noted 
that many of the amendments proposed in this notice have been under 
consideration since before the plan was established.
    The Commission invites the public to comment on all of these 
proposed rules amendments. In any comments, please consider addressing 
whether the language of the proposed amendments is sufficiently clear 
for users to understand. In addition please consider addressing how the 
proposed rules amendments could be improved, and offering specific 
constructive alternatives where appropriate.
    Consistent with its ordinary practice, the Commission is issuing 
these proposed amendments in accordance with the applicable 
requirements of 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 proposed 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 proposed 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 proposed rules will not result 
in expenditure in the aggregate by State, local, and tribal 
governments, or by the private sector, of $100,000,000 or more in any 
one year, and will not significantly or uniquely affect small 
governments, as defined in 5 U.S.C. 601(5).
    The proposed 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 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. 3504(h)).

Part 201

Subpart B--Initiation and Conduct of Investigations

Section 201.16(a)
    Section 201.16(a) generally provides means to serve documents on 
parties. Section 201.16(b)(3) indicates that ``When service is by mail, 
it is complete upon mailing of the document'' for service by the 
parties. To eliminate confusion, the proposed rule would indicate that 
this is equally applicable to service by the Commission. Further, the 
proposed rule would clarify that overnight delivery is an option for 
service by the Commission. In this connection, the proposed rule would 
indicate that when service is by overnight delivery, it is complete 
upon placing/submitting the document in overnight delivery.
Section 201.16(c)
    Section 201.16(c) generally provides for a certificate of service. 
The Commission proposes to amend Sec.  201.16(c) to refer to other 
applicable requirements for service in Sec.  210.4(i), in addition to 
the current reference to Sec.  201.8.
Section 201.16(e)
    Section 201.16(e) generally provides for additional days to be 
added to the response times when service is by overnight delivery. For 
example, Sec.  201.16(e) provides ten additional days when service is 
by mail to a foreign country, but only provides one day for overnight 
delivery service regardless of when delivery occurs. The reality of 
overnight delivery service is that it often takes more than one day to 
reach certain foreign countries. The proposed rule would add five 
additional calendar days to the response time when overnight delivery 
service is to a foreign country.
Section 201.16(f)
    Section 201.16(f) generally provides for electronic service of 
documents in matters before the Commission with the appropriate prior 
consent. Section 201.16(e) provides additional time to be added to the 
response times when service is by mail or overnight mail. The proposed 
rule would clarify that no additional time is added to the response 
times when service is by electronic means. The Commission expects the 
parties or the judges to establish a time of day by which email will be 
sent.

Part 210

Subpart A--Rules of General Applicability

Section 210.3
    Section 210.3 provides definitions for certain terms used in Part 
210. The proposed rule would supply ``ancillary proceeding'' as a 
synonym for the term ``related proceeding,'' using the same definition.
Section 210.4
    Section 210.4 generally provides the requirements for written 
submissions. Section 210.4(f)(3) sets forth a list of submissions which 
must be filed electronically, with true paper copies filed by noon on 
the next business day. The proposed rule would amend Sec.  210.4(f)(3) 
by adding filings under Sec. Sec.  210.38, 210.66, and 210.70 to this 
list.
Section 210.5
    Section 210.5 generally provides for special treatment of 
confidential business information in section 337 investigations. Where 
the Commission or the administrative law judge issues a confidential 
version of an order, initial determination, opinion, or other document, 
the time to issuance of the public version may vary. The Commission 
proposes to provide that the Commission (or the presiding 
administrative law judge, if the administrative law judge has issued 
the document) will issue the public version of the document within 30 
days of issuance of the confidential version, unless good cause exists 
for extending this deadline. The administrative law judge or the 
Commission may extend this time by order.
Section 210.6
    Section 210.6 generally provides for the computation of time in 
section 337 investigations, and supplements Sec. Sec.  201.14 and 
201.16, which provide the

[[Page 41122]]

general rules for computation of time in proceedings before the 
Commission. The current rule mistakenly refers to Sec. Sec.  210.14 and 
210.16. The proposed rule revises Sec.  210.6 to refer to the 
appropriate subsections of Sec. Sec.  201.14 and 201.16. Further, the 
proposed rule would amend Sec.  210.6(c) to refer to the proposed rule 
for Sec.  201.16(e) to provide that the response time is enlarged by a 
total of 5 calendar days when service is by overnight delivery to a 
foreign country. In addition, the proposed rule would remove Sec.  
210.6(d) which is redundant in light of Sec.  201.16(e).
Section 210.7
    Section 210.7 generally provides for service of process and 
publication of notices. The current rule mistakenly refers to Sec.  
210.6 rather than Sec.  201.6, the rule on confidential business 
information. The proposed rule revises Sec.  210.7 to refer to Sec.  
201.6 instead of Sec.  210.6. In addition, the proposed rule puts 
``Sec.  201.6'' closer in the sentence to ``confidential business 
information'' to clarify that confidential business information is 
defined in Sec.  201.6. Further, the proposed rule provides for 
overnight service of cease and desist orders.
    The current rule also mistakenly refers to Sec.  210.7(b)(2) and 
(b)(1), which do not exist. The proposed rule refers instead to Sec.  
210.7(c)(2) and (c)(1), and to Sec.  201.10 which provide for 
publication of notices.
Section 210.8
    Section 210.8 generally provides for the filing of the complaint 
and for filings by the complainant, respondents, and members of the 
public on the public interest issues raised by the complaint. The 
Commission proposes to provide that if a complainant, proposed 
respondent, or member of the public files a confidential submission, it 
shall file a public version of the submission at the same time.

Subpart C--Pleadings

Section 210.12(a)
    Section 210.12(a) generally provides the requirements for the 
contents of a complaint and references Sec.  201.8. Section 201.8, 
however, has been amended such that it does not apply to section 337 
investigations. The Commission proposes to eliminate reference to Sec.  
201.8.
    19 U.S.C. 1337(a)(1)(B)-(E) prohibit the importation, sale for 
importation, or sale after importation of articles covered by a valid 
and enforceable patent, copyright, trademark, mask work, or boat hull 
design related to an industry that exists or is in the process of being 
established within the meaning of 19 U.S.C. 1337(a)(2)-(3). 19 U.S.C. 
1337(a)(1)(A)(i)-(ii) prohibit unfair methods of competition, or unfair 
acts in the importation or sale of articles in the United States, the 
effect of which is to destroy or substantially injure an industry in 
the United States or prevent the establishment of such an industry. The 
Commission proposes to amend paragraphs (a)(6)(i) and (ii) to require 
the complainant to plead with particularity whether it alleges a 
domestic industry that exists or a domestic industry that is in the 
process of being established. The amendment is in keeping with the 
Commission's fact pleading requirements and serves to provide the 
Commission and the public with notice of the manner in which the 
complainant believes it satisfies the requirements of section 337.
    In addition, the Commission proposes to amend paragraph (11) to 
require the complainant to specify if it is requesting a general 
exclusion order, a limited exclusion order, and/or cease and desist 
orders under 19 U.S.C. 1337(d), (f), or (g). The Commission believes 
that this amendment serves a public notice function. The requested 
relief will be stated in the notice requesting public interest comments 
to facilitate public comment specific to the requested relief, and in 
the notice of investigation for public notice purposes. See 75 FR 60671 
(Oct. 1, 2010); 76 FR 64803 (Oct. 19, 2011).
    The Commission further proposes to add a paragraph (12) to require 
the complainant to identify the accused products with a clear statement 
in plain English in order to put the public on notice of the type of 
products involved. For example, the caption of the investigation might 
refer to ``certain electronic devices,'' but the complaint would 
provide a further statement to identify the type of products involved 
in plain English as mobile devices, tablets, or computers. The 
description of the accused product will be included in the Federal 
Register notice requesting public interest comments as well as the 
notice of investigation.
Section 210.13(b)
    Section 210.13(b) generally sets forth the requirements for the 
contents of the response to the complaint, and references Sec.  201.8. 
Section 201.8, however, has been amended such that it does not apply to 
section 337 investigations. The proposed rule would eliminate any 
reference to Sec.  201.8.
Section 210.14
    Section 210.14 generally provides for amendments to the pleadings 
and notice of investigation. The Commission proposes to make uniform 
and codify its practice concerning consolidating related 
investigations. The proposed rule would add a new paragraph (f) to 
provide that the Commission may consolidate investigations, that the 
presiding administrative law judge may consolidate the investigations 
if both investigations are before the same administrative law judge, 
and the chief administrative law judge may consolidate investigations 
if the investigations are before different administrative law judges 
and both administrative law judges agree that consolidation is 
appropriate. The caption and investigation number of the consolidated 
investigation would be a combination of the caption and numbers of the 
investigations being combined. The investigation number of the lead 
investigation would be the first investigation number named in the 
consolidated caption. For example, Investigation Nos. 337-TA-xxxx and 
337-TA-yyyy would be combined as 337-TA-xxxx/yyyy where xxxx is the 
lead investigation. The heading of Sec.  210.14 would be amended to 
include consolidation of investigations.
    The Commission further proposes to address the filing of 
substantial amendments to complaints during the pre-institution review 
period, a practice which has become increasingly common. Many of these 
amendments have attempted to significantly change the scope of the 
requested investigation either by naming additional proposed 
respondents or asserting infringement of additional patents or patent 
claims. Substantial amendments to complaints during the pre-institution 
review period complicate the Commission's ability to solicit and obtain 
comments concerning the public interest implications of the complaint 
in a timely manner, place additional demands on Commission resources to 
assess the amendments and/or process extensions before the conclusion 
of the original institution period, and can effectively reduce the 30-
day period that proposed respondents normally have to review the 
allegations against them. The proposed rule change, which would add a 
new sentence at the end of rule 210.14(a), would alleviate these 
concerns by providing that if a complainant significantly amends a 
complaint prior to institution, the amendment will restart the normal 
30-day process for determining whether to institute the investigation.

[[Page 41123]]

Sections 210.14(b)(1) and 210.15(a)(2)
    Section 210.14(b)(1) provides for motions to amend the complaint 
after an investigation has been instituted. Section 210.15 sets forth 
the general requirements for a motion, and Sec.  210.15(a)(2) contains 
the more specific requirement that a motion to amend the complaint and 
notice of investigation to add proposed respondents must be served on 
each proposed respondent. The proposed rule would move the requirement 
for service on proposed respondents from Sec.  210.15(a)(2) to Sec.  
210.14(b)(1).

Subpart D--Motions

Section 210.16(b)
    Section 210.16 generally provides for default in section 337 
proceedings. Section 210.16(b)(1) provides a two-step process for 
finding a respondent in default where the respondent has failed to 
appear. First, the complainant may move for an order to show cause why 
the respondent should not be found in default (or the administrative 
law judge may issue an order to show cause sua sponte). Second, if the 
respondent fails to make the necessary showing, the administrative law 
judge may issue an order finding the respondent in default. In certain 
recent investigations, the complainant has failed to observe the two-
part process outlined in Sec.  210.16(b), and has erroneously made a 
motion for a finding of default, skipping the motion for an order to 
show cause. In order to clarify the process, the Commission proposes to 
separate Sec.  210.16(b)(1) into two parts, Sec.  210.16(b)(1)(i) and 
Sec.  210.16(b)(1)(ii), directed to the show cause step and the default 
step, respectively.
Section 210.16(c)
    Section 210.16(c) generally provides the means of relief against a 
respondent in default. Where the complainant seeks a general exclusion 
order, Sec.  210.16(c)(2) requires the complainant to put notice in the 
motion for default or termination of the last remaining respondent that 
it is seeking a general exclusion order. In certain recent 
investigations, the complainant has failed to state at the time of 
requesting relief against the last remaining respondent that it was 
seeking a general exclusion order. In order to highlight this 
requirement, the Commission proposes to add headings to indicate that 
Sec.  210.16(c)(1) is directed to the type of relief available and 
Sec.  210.16(c)(2) is directed to general exclusion orders. The 
Commission further proposes to set forth the statutory requirements for 
a general exclusion order in a statutory default case in Sec.  
210.16(c)(2).
Section 210.17
    Section 210.17 generally addresses failures to act other than 
failure to appear to answer the complaint and notice of investigation 
pursuant to Sec.  210.16 and 19 U.S.C. 1337(g)(1)(C). Section 210.17 
provides that the administrative law judge or the Commission may draw 
adverse inferences for these other failures to act. The Commission 
proposes to provide that a respondent who appears but who later wishes 
to default may subsequently file a notice of its intention to default. 
This subsequent default will be treated the same as other failures to 
act in this section, and the administrative law judge or Commission may 
draw adverse inferences in the same manner. The Commission further 
proposes to retitle the section ``Other Failure to Act and Default.''
Section 210.21
    Section 210.21 generally provides for termination of the 
investigation prior to a finding of violation of section 337 by 
withdrawal of the complaint, settlement agreement, or consent order. 
Section 210.21(b) provides that a motion for termination by reason of a 
settlement agreement shall contain copies of the settlement agreement, 
any supplemental agreements, and a statement that there are no other 
agreements. In certain recent investigations, the complainant has 
failed to supply the Commission with all the documents referenced in 
the settlement agreements. In order to clarify this aspect of Sec.  
210.21(b), the Commission proposes to add that the parties must provide 
a copy of any documents referenced in the settlement agreements because 
these documents are considered part of the settlement agreement.
    With respect to Sec.  210.21(c) on termination by consent order, 
the Commission proposes to clarify Sec.  210.21(c)(3) by providing that 
consent order stipulations include a statement identifying the asserted 
intellectual property right or unfair trade practice that is the basis 
for the alleged violation of Section 337, and whether the stipulation 
calls for cessation of importation, distribution, sale, or other 
transfers (other than exportation) of subject articles in the United 
States and/or specific terms relating to the disposition of existing 
U.S. inventories of subject articles. The Commission proposes to 
replace the third sentence of paragraph (c)(1)(ii) to indicate that the 
consent order stipulation must comply with the requirements of 
paragraph (c)(3). The Commission further proposes to list the terms in 
a consent order in a new paragraph (c)(4). The Commission clarifies 
that, although the consent order stipulations may contain additional 
terms, the proposed consent order itself cannot add terms beyond what 
is provided for in this section, and that the Commission will not 
enforce any terms beyond those provided for in Sec.  210.21(c). In 
addition, the Commission proposes to require that a party moving to 
terminate an investigation by consent order must submit a copy of any 
agreements with any other party, i.e., a copy of any settlement or 
licensing agreements.

Subpart E--Discovery and Compulsory Process

Section 210.28
    Section 210.28 generally provides for depositions in section 337 
investigations. Federal Rule of Civil Procedure 30(b)(6) provides that 
in its notice of deposition or subpoena, a party may name as the 
deponent a public or private corporation, partnership, association, 
government agency, or other entity and must describe with particularity 
the matters for examination. The organization must then designate one 
or more officers, directors, or managing agents or other persons who 
consent to testify on its behalf, and it may set out the matters on 
which each will testify. There is no Commission rule that requires a 
party to respond to a notice of deposition, e.g., of a corporate 
designee, within any particular period of time. This leads to last 
minute disputes among the parties about the scope of topics upon which 
the corporate designee will testify. By comparison, other discovery 
rules, such as Sec.  210.30(b)(2) regarding production of documents and 
things, Sec.  210.29(b)(2) regarding interrogatories, and Sec.  210.32, 
as well as the ALJ Ground Rules on subpoenas duces tecum, provide for a 
ten day period for parties to respond and submit objections. In this 
connection, the Commission proposes to create a ten-day period in which 
parties may respond to and make objections to a notice of deposition.
    In keeping with the Federal Rules of Civil Procedure, the 
Commission further proposes to place a limit on the number of 
depositions that the parties may take. Federal Rule of Civil Procedure 
30(a)(2)(A)(i) provides that a maximum of 10 depositions may be taken 
by the plaintiffs, or by the defendants, or by the third-party 
defendants unless the parties have stipulated otherwise. This is the 
general rule for civil cases. Because Commission investigations may

[[Page 41124]]

involve multiple parties and multiple patent claims, the Commission 
proposes to limit the number of fact depositions taken. Specifically, 
the Commission proposes to limit the complainants as a group to a 
maximum of five fact depositions per respondent or no more than 20 fact 
depositions, whichever is greater, to limit the respondents as a group 
to a maximum of 20 fact depositions total, and if the Commission 
investigative attorney is a party, to limit him or her to taking a 
maximum of 10 fact depositions and he or she is permitted to 
participate in all depositions taken by any parties in the 
investigation. The number of depositions may be increased on written 
motion to the presiding administrative law judge for good cause shown.
Section 210.29
    Section 210.29 generally provides for interrogatories in section 
337 investigations. In keeping with the ground rules of several of the 
administrative law judges, the Commission proposes to limit the number 
of interrogatories. Specifically, each party would be allowed to serve 
any other party with a maximum of 175 interrogatories, including 
subparts, absent stipulation by the parties or grant of a written 
motion by a party to the presiding administrative law judge for good 
cause shown.
Section 210.34(b) and (c)
    Section 210.34(b) generally provides the steps that a person must 
take if he finds that he has made an unauthorized disclosure of 
information. The Commission proposes to amend Sec.  210.34(b) to 
clarify that the rule also encompasses loss or theft of information.
    Section 210.34(c) generally provides for sanctions for violation of 
a protective order. When a determination on sanctions is pending before 
the Commission, it is currently unclear from the rules whether the 
Commission may consider only the recommended determination on sanctions 
from the administrative law judge or also the orders related to the 
recommended determination on sanctions. The Commission proposes to 
clarify that the Commission may consider both the recommended 
determination on sanctions and also any orders related thereto. To 
comply with the requirements of the Office of the Federal Register, the 
Commission would move the text of the Note to Paragraph (c) into the 
body of paragraph (c). The Commission would thus redesignate the text 
of the Note as paragraphs (c)(1) and (c)(2). The Commission would 
redesignate the current body of paragraph (c), which has subparagraphs 
(1)-(5), as paragraph (c)(3) with subparagraphs (i)-(v).

Subpart G--Determinations and Actions Taken

Section 210.42(a) and (c)
    Section 210.42 generally provides for initial determinations. Under 
Sec.  210.51, an administrative law judge may set a target date for 
completion of an original investigation at 16 months or less by order 
rather than by initial determination. 73 FR 38,322 (July 7, 2008). The 
Commission proposes to amend section 210.42(c) to conform to Sec.  
210.51. In addition, the Commission proposes to amend section 
210.42(a)(1)(i) to conform to the proposed amendment to Sec.  210.51, 
which divides Sec.  210.51(a) into subparagraphs (a)(1) and (a)(2).
    The Commission further proposes to amend section 210.42(c) by 
dividing it into a paragraph (c)(1) for motions which may be granted by 
initial determination and a paragraph (c)(2) for motions which may be 
granted or denied by initial determination. In this connection, the 
Commission proposes to provide that decisions by an administrative law 
judge on motions for forfeiture or return of respondents' bond pursuant 
to section 210.50(d) or for forfeiture or return of complainant's 
temporary relief bond pursuant to section 210.70 shall be made as an 
initial determination regardless of whether the motion is granted or 
denied.
Section 210.43
    Section 210.43 generally provides the timing and contents of a 
petition for review of an initial determination of the administrative 
law judge to the Commission. Section 210.43(a) provides that petitions 
for review of initial determinations issued under Sec.  210.42(c) that 
would terminate the investigation in its entirety on summary 
determination must be filed within 10 business days after service of 
the initial determination. The Commission proposes to correct a 
technical error. In this connection, the proposed rule would provide 10 
days (i.e., 10 calendar days) rather than 10 business days. (Under 
Sec.  201.14, 10 days means 10 calendar days, unless otherwise 
specified.)
    The Commission further proposes to include a reference in Sec.  
210.43(a) and (c) to Sec.  210.75(b)(3), in order to provide that 
petitions for review of enforcement initial determinations in formal 
enforcement proceedings are due 10 days after the service of the 
enforcement initial determination, and responses thereto are due 5 
business days after the service of the petitions for review. See Sec.  
210.75, infra.
    The Commission proposes a further amendment that relates to 
attempts by parties to evade the page limits for petitions for review 
and responses thereto. The Commission proposes to add an express 
statement prohibiting such attempts to evade the page limit through 
reference to previously filed pleadings. The Commission notes that this 
does not represent a change in the substance of the rule. As such, the 
Commission would reiterate that all arguments not contained within the 
petition for review, or response thereto, are waived. Even considering 
the fact that investigations often include multiple patent claims and 
multiple parties, the Commission considers its 100 page limit to be 
generous, especially considering that the U.S. Court of Appeals for the 
Federal Circuit limits opening briefs to 14,000 words or 1,300 lines of 
monospaced type (approximately 60 pages of 14-point type). Federal Rule 
of Appellate Procedure 32(a)(7)(B)(i).
Section 210.50
    Section 210.50 generally provides for the issuance of a limited 
exclusion order, a general exclusion order, and/or a cease and desist 
order, and the posting of a bond by the respondents in the case of the 
issuance of an exclusion order. Section 210.50(a)(4) provides that the 
Commission may receive submission from the parties, interested persons, 
and other government agencies regarding the possible issuance of a 
remedy. The Commission proposes to require that if a party, interested 
person, or agency files a confidential version of its submission, it 
shall file a public version of the submission at the same time. Section 
210.50(a)(4) also provides that the parties are requested to provide 
information relating to the statutory public interest factors within 30 
days of service of the administrative law judge's recommended 
determination on remedy and bonding. The Commission proposes to clarify 
that the limit of 5 pages applies only to submissions under this 
paragraph, in response to the recommended determination, rather than to 
all submissions under this section.
    Section 210.50(d) states that a motion for return or forfeiture of 
a bond may be made within 90 days of the expiration of the period of 
Presidential review. The Commission proposes to add that a motion for 
return or forfeiture of a bond may be made, if an appeal is taken from

[[Page 41125]]

the Commission determination, within 30 days of the resolution of the 
appeal. The Commission further proposes to amend the rule to provide 
that, if the administrative law judge is no longer employed by the 
Commission, the motion shall be addressed to the chief administrative 
law judge, rather than to the Commission.
Section 210.51
    Section 210.51 generally provides that the administrative law judge 
shall set a target date for completion of an investigation. The 
Commission proposes to separate paragraph (a) into paragraph (a)(1) 
pertaining to original investigations and paragraph (a)(2) pertaining 
to formal enforcement proceedings. With respect to formal enforcement 
proceedings, the Commission proposes to provide that an administrative 
law judge may set a target date of 12 months or less by order, and a 
target date greater than 12 months for completion of a formal 
enforcement proceeding by initial determination.

Subpart H--Temporary Relief

Section 210.54
    Section 210.54 generally provides for service of information that 
supplements a complaint and pre-institution motions. The revision which 
became effective August 6, 2008, 73 FR 38,322 (July 7, 2008), omitted a 
specific reference to a motion for temporary relief, which would 
provide antecedent basis to the provision that the ``complainant must 
serve non-confidential copies of both documents * * *.'' The proposed 
rule contains an amendment to include a motion for temporary relief in 
that sentence in order to provide antecedent basis for the phrase 
``both documents.''
Section 210.56(a)
    Section 210.56(a) generally provides for the notice that is 
required to accompany service copies of complaints and motions for 
temporary relief, and references Sec.  201.8. Section 201.8, however, 
has been amended such that it does not apply to section 337 
investigations. In this connection, the proposed rule would eliminate 
reference to Sec.  201.8.
Section 210.58
    Section 210.58 generally provides for provisional acceptance of a 
motion for temporary relief filed with a complaint, and references 
Sec.  201.8. Section 201.8, however, has been amended such that it does 
not apply to section 337 investigations. In this connection, the 
proposed rule would eliminate reference to Sec.  201.8.
Section 210.59(b) and (c)
    Section 210.59(b) and (c) generally provide for a response to a 
motion for temporary relief, and reference Sec.  201.8. Section 201.8, 
however, has been amended such that it does not apply to section 337 
investigations. In this connection, the proposed rule would eliminate 
reference to Sec.  201.8.
Section 210.60
    Section 210.60 generally provides, with respect to investigations 
where temporary relief is sought, a designation of a more complicated 
temporary relief phase of the investigation. The Commission proposes to 
add a definition of ``more complicated,'' formerly codified at Sec.  
210.22, which had previously been deleted. The designation of ``more 
complicated'' no longer applies in most section 337 investigations, but 
may still be applicable where temporary relief is sought. The 
Commission further proposes to clarify that it is the temporary relief 
phase, and not the investigation, which is given the designation ``more 
complicated.''

Subpart I--Enforcement Proceedings and Advisory Opinions

Section 210.75(b)
    Section 210.75(b) generally provides for formal enforcement 
proceedings. In Vastfame Camera, Ltd. v. ITC, 386 F.3d 1108 (Fed. Cir. 
2004), the U.S. Court of Appeals for the Federal Circuit explained that 
enforcement proceedings are authorized under section 337(b) in the same 
manner as original investigations for violation of section 337. The 
Commission proposes to add a sentence to Sec.  210.75(b)(1), and to 
remove contrary language from Sec.  210.75(b)(3), to clarify that 
formal enforcement proceedings are conducted in accordance with the 
laws for original investigations as set forth in 19 U.S.C. 1337 and 5 
U.S.C. 554 et seq. and the rules of this Part. The Commission further 
proposes to provide that the administrative law judge shall issue an 
enforcement initial determination no later than three months before the 
target date for formal enforcement proceedings.
    There is a parallel proposal in Sec.  210.51 providing that a 
presiding administrative law judge may set a target date for completion 
of a formal enforcement proceeding of 12 months or less by order, or 
greater than 12 months by initial determination. In this connection, 
the Commission proposes to amend Sec.  210.75(b)(3) to change the 
length of time for the Commission to determine whether to review of 
enforcement initial determinations from 90 days to 45 days (from 
service of the enforcement initial determination). The Commission 
further proposes to include a reference to Sec.  210.43. There is a 
parallel proposal in Sec.  210.43, revising Sec.  210.43 to provide 
that petitions for review of enforcement initial determinations are due 
within 10 days of service of the enforcement initial determination, and 
responses thereto are due within 5 business days of service of 
petitions for review.
Section 210.76
    Section 210.76 provides for modification and rescission 
proceedings. The Commission proposes to codify the practice by which 
parties comment on the recommended determination of the administrative 
law judge. The Commission proposes that parties may submit comments 
within 10 days of service of the recommended determination, and may 
submit responses thereto within 5 business days from service of any 
comments.
Appendix A to Part 210--Adjudication and Enforcement
    The appendix provides a summary of the filing dates for petitions 
for review of an initial determination, the filing dates for responses 
thereto, and the Commission deadline for determining whether to review 
an initial determination. The Commission proposes to update the 
appendix pursuant to the proposed rules for this Part, i.e., the timing 
of petitions of enforcement initial determinations and responses 
thereto in formal enforcement proceedings, and the deadline for whether 
to review an enforcement initial determination. The Commission further 
proposes to organize the contents of the Appendix by the numerical 
order of the rules referred to.
Appendix B to Part 210--Adjudication and Enforcement
    The Commission proposes to add an Appendix B to summarize the 
deadlines for comments on recommended determinations for modification 
and rescission proceedings under Sec.  210.76, and responses thereto.

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.


[[Page 41126]]


    For the reasons stated in the preamble, the United States 
International Trade Commission proposes to amend 19 CFR parts 201 and 
210 as follows:

PART 201--RULES OF GENERAL APPLICATION

    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.

Subpart B--Initiation and Conduct of Investigations

    2. Amend Sec.  201.16 by:
    a. Adding paragraphs (a)(3) and (4);
    b. Revising paragraph (c)(1);
    c. Revising paragraph (e); and
    d. Revising the third sentence of paragraph (f).
    The additions and revisions read as follows:


Sec.  201.16  Service of process and other documents.

    (a) * * *
    (3) By using an overnight delivery service to send a copy of the 
document to the principal office of such person, partnership, 
corporation, association, or other organization, or, if an attorney 
represents any of the above before the Commission, by leaving a copy at 
the office of such attorney.
    (4) When service is by mail, it is complete upon mailing of the 
document. When service is by an overnight delivery service, service is 
complete upon submitting the document to the overnight delivery service 
or depositing it in the appropriate container for pick-up by the 
overnight delivery service.
* * * * *
    (c) * * *
    (1) Each document filed with the Secretary to the Commission by a 
party in the course of an investigation (as provided in Sec.  201.8 of 
this part) shall be served on each other party to the investigation (as 
provided in Sec.  210.4(i) of this chapter).
* * * * *
    (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 
if the service is to a destination in the United States, and five (5) 
days shall be added to the prescribed period if the service is to a 
destination outside the United States. ``Service by overnight 
delivery'' is defined as a method that would provide delivery by the 
next business day within the United States.
    (f) * * * If electronic service is used, no additional time is 
added to the prescribed period after the service of the document to 
respond or take action. * * *

PART 210--ADJUDICATION AND ENFORCEMENT

    3. 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

    4. Amend Sec.  210.3 adding a definition of Ancillary proceeding in 
alphabetical order to read as follows:


Sec.  210.3  Definitions.

* * * * *
    Ancillary proceeding has the same meaning as related proceeding.
* * * * *
    5. Amend Sec.  210.4 by revising paragraph (f)(3) to read as 
follows:


Sec.  210.4  Written submissions; representations; sanctions.

* * * * *
    (f) * * *
    (3) Responses to a complaint, briefs, comments and responses 
thereto, compliance reports, motions and responses or replies thereto, 
petitions and replies thereto, prehearing statements, and proposed 
findings of fact and conclusions of law and responses thereto provided 
for under Sec. Sec.  210.4(d), 210.13, 210.8, 210.14, 210.15, 210.16, 
210.17, 210.18, 210.19, 210.20, 210.21, 210.23, 210.24, 210.25, 210.26, 
210.33, 210.34, 210.35, 210.36, 210.38, 210.40, 210.43, 210.45, 210.46, 
210.47, 210.50, 210.52, 210.53, 210.57, 210.59, 210.66, 210.70, or 
210.71; and submissions filed with the Secretary pursuant to an order 
of the presiding administrative law judge shall be filed 
electronically, and true paper copies of such submissions shall be 
filed by 12 noon, eastern time, on the next business day.
* * * * *
    6. Amend Sec.  210.5 by adding paragraph (f) to read as follows:


Sec.  210.5  Confidential business information.

* * * * *
    (f) When the Commission or the administrative law judge issues a 
confidential version of an order, initial determination, opinion, or 
other document, the Commission, or the presiding administrative law 
judge if the administrative law judge has issued the confidential 
version, shall issue a public version of the document within 30 days, 
unless good cause exists to extend the deadline. An administrative law 
judge or the Commission may extend this time by order.
    7. Revise Sec.  210.6 to read as follows:


Sec.  210.6  Computation of time, additional hearings, postponements, 
continuances, and extensions of time.

    (a) Unless the Commission, the administrative law judge, or this or 
another section of this part specifically provides otherwise, the 
computation of time and the granting of additional hearings, 
postponements, continuances, and extensions of time shall be in 
accordance with Sec. Sec.  201.14 and 201.16(d) and (e) of this 
chapter.
    (b) Whenever a party has the right or is required to perform some 
act or to take some action within a prescribed period after service of 
a document upon it, and the document was served by mail, the deadline 
shall be computed by adding to the end of the prescribed period the 
additional time allotted under Sec.  201.16(d), unless the Commission, 
the administrative law judge, or another section of this part 
specifically provides otherwise.
    (c) Whenever a party has the right or is required to perform some 
act or to take some action within a prescribed period after service of 
a Commission document upon it, and the document was served by overnight 
delivery, the deadline shall be computed by adding to the end of the 
prescribed period the additional time allotted under Sec.  201.16(e), 
unless the Commission, the administrative law judge, or another section 
of this part specifically provides otherwise.
    8. Amend Sec.  210.7 by:
    a. Revising paragraph (a)(2); and
    b. Revising paragraph (c).
    The revisions read as follows:


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

    (a) * * *
    (2) The service of all initial determinations as defined in Sec.  
210.42, all cease and desist orders as set forth in Sec.  210.50(a)(1), 
and all documents containing confidential business information as 
defined in Sec.  201.6(d), issued by or on behalf of the Commission or 
the administrative law judge on a private party, shall be effected by 
serving a copy of the document by overnight delivery on the person to 
be served, on a member of the partnership to be served, on the 
president, secretary, other executive

[[Page 41127]]

officer, or member of the board of directors of the corporation, 
association, or other organization to be served, or, if an attorney 
represents any of the above in connection with an investigation under 
this subtitle, by serving a copy by overnight delivery on such 
attorney.
* * * * *
    (c) Publication of notices. (1) Notice of action by the Commission 
or an administrative law judge will be published in the Federal 
Register only as specifically provided in Sec.  201.10, paragraph 
(c)(2) of this section, by another section in this chapter, or by order 
of an administrative law judge or the Commission.
    (2) When an administrative law judge or the Commission determines 
to amend or supplement a notice published in accordance with paragraph 
(c)(1) of this section, notice of the amendment will be published in 
the Federal Register.
    9. Amend Sec.  210.8 by:
    a. Adding a sentence after the second sentence of paragraph (b) 
introductory text;
    b. Adding a sentence after the fourth sentence of paragraph (c)(1) 
introductory text; and
    c. Adding a sentence after the first sentence of paragraph (c)(2).
    The additions read as follows:


Sec.  210.8  Commencement of preinstitution proceedings.

* * * * *
    (b) * * * If the complainant files a confidential version of its 
submission, it shall file a public version of the submission at the 
same time. * * *
* * * * *
    (c) * * * (1) * * * If a member of the public or proposed 
respondent files a confidential version of its submission, it shall 
file a public version of the submission at the same time. * * *
* * * * *
    (2) * * * If the complainant files a confidential version of its 
submission, it shall file a public version of the submission at the 
same time.
* * * * *

Subpart C--Pleadings

    10. Amend Sec.  210.12 by:
    a. Revising paragraph (a) introductory text;
    b. Revising the first sentence of paragraph (a)(6)(i);
    c. Revising paragraph (a)(6)(ii);
    d. Revising paragraph (a)(11); and
    e. Adding paragraph (a)(12).
    The revisions and addition read as follows:


Sec.  210.12  The complaint.

    (a) Contents of the complaint. In addition to conforming with the 
requirements of Sec. Sec.  210.4 and 210.5 of this part, the complaint 
shall--
* * * * *
    (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 
statement as to whether an alleged domestic industry exists or is in 
the process of being established as defined in section 337(a)(2), and 
include a detailed description of the relevant domestic industry as 
defined in section 337(a)(3) that allegedly exists or is in the process 
of being established (i.e., for the latter, facts showing complainant 
is actively engaged in the steps leading to the exploitation of its 
intellectual property rights, and that there is a significant 
likelihood that an industry will be established in the future), and 
including the relevant operations of any licensees. * * *
    (ii) If the complaint alleges a violation of section 337 of the 
Tariff Act of 1930 based on unfair methods of competition and unfair 
acts in the importation or sale of articles in the United States that 
have the threat or effect of destroying or substantially injuring an 
industry in the United States or preventing the establishment of such 
an industry under section 337(a)(1)(A) (i) or (ii), include a detailed 
statement as to whether an alleged domestic industry exists or is in 
the process of being established (i.e., for the latter, facts showing 
that there is a significant likelihood that an industry will be 
established in the future), and include a detailed description of the 
domestic industry affected, including the relevant operations of any 
licensees; or
* * * * *
    (11) Contain a request for relief, including a statement as to 
whether a limited exclusion order, general exclusion order, and/or 
cease and desist orders are being requested, and if temporary relief is 
requested under section 337 (e) and/or (f) of the Tariff Act of 1930, a 
motion for such relief shall accompany the complaint as provided in 
Sec.  210.52(a) or may follow the complaint as provided in Sec.  
210.53(a).
    (12) Contain a clear statement in plain English of the category of 
products accused. For example, the caption of the investigation might 
refer to ``certain electronic devices,'' but the complaint would 
provide a further statement to identify the type of products involved 
in plain English as mobile devices, tablets, or computers.
* * * * *
    11. Amend Sec.  210.13 by revising the first sentence of paragraph 
(b) to read as follows:


Sec.  210.13  The response.

* * * * *
    (b) * * * In addition to conforming to the requirements of 
Sec. Sec.  210.4 and 210.5 of this part, each response shall be under 
oath and signed by respondent or his duly authorized officer, attorney, 
or agent with the name, address, and telephone number of the respondent 
and any such officer, attorney, or agent given on the first page of the 
response. * * *
* * * * *
    12. Amend Sec.  210.14 by:
    a. Revising the section heading;
    b. Adding a sentence at the end of paragraph (a);
    c. Adding a sentence after the second sentence of paragraph (b)(1); 
and
    d. Adding paragraph (g).
    The revision and additions read as follows:


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

    (a) * * * If, prior to institution, the complainant seeks to amend 
a complaint to add a respondent or to assert an additional unfair act 
not in the original complaint, including asserting a new patent or 
patent claim, then the complaint shall be treated as if it had been 
filed on the date the amendment is filed for purposes of Sec. Sec.  
210.8(b) and (c), 210.9, and 210.10(a).
    (b) * * *
    (1) * * * A motion to amend the complaint and notice of 
investigation to name an additional respondent after institution shall 
be served on the proposed respondent. * * *
* * * * *
    (g) Consolidation of investigations. The Commission may consolidate 
two or more investigations. If the investigations are currently before 
the same presiding administrative law judge, he or she may consolidate 
the investigations. If the investigations are currently before 
different administrative law judges, the chief administrative law judge 
may consolidate the investigations if the administrative law judges to 
whom the cases are assigned agree that consolidation is appropriate. 
The investigation number in the caption of the consolidated 
investigation will include the investigation numbers of the 
investigations being consolidated. The investigation number in which 
the

[[Page 41128]]

matter will be proceeding (the lead investigation) will be the first 
investigation number named in the consolidated caption.

Subpart D--Motions


Sec.  210.15  [Amended]

    13. Amend Sec.  210.15 by removing the second sentence in paragraph 
(a)(2).
    14. Amend 210.16 by:
    a. Revising paragraph (b)(1);
    b. Adding italic headings at the beginning of paragraphs (c)(1) and 
(2); and
    c. Revising the last sentence of paragraph (c)(2).
    The additions and revisions read as follows:


Sec.  210.16  Default.

* * * * *
    (b) * * *
    (1)(i) If a respondent has failed to respond or appear in the 
manner described in paragraph (a)(1) of this section, a party may file 
a motion for, or the administrative law judge may issue upon his own 
initiative, an order directing respondent to show cause why it should 
not be found in default.
    (ii) If the respondent fails to make the necessary showing pursuant 
to paragraph (b)(1)(i) of this section, the administrative law judge 
shall issue an initial determination finding the respondent in default. 
An administrative law judge's decision denying a motion for a finding 
of default under paragraph (a)(1) of this section shall be in the form 
of an order.
* * * * *
    (c) * * *
    (1) Types of relief available. * * *
    (2) General exclusion orders. * * * The Commission may issue a 
general exclusion order pursuant to section 337(g)(2) of the Tariff Act 
of 1930, regardless of the source or importer of the articles 
concerned, provided that a violation of section 337 of the Tariff Act 
of 1930 is established by substantial, reliable, and probative evidence 
and that the other requirements of 19 U.S.C. 1337(d)(2), and only after 
considering the aforementioned public interest factors and the 
requirements of Sec.  210.50(c).
    15. Amend Sec.  210.17 by:
    a. Revising the section heading;
    b. Revising paragraph (f);
    c. Removing paragraph (g);
    d. Redesignating paragraph (h) as paragraph (g); and
    e. Adding paragraph (h).
    The revisions and addition read as follows:


Sec.  210.17  Other failure to act and default.

* * * * *
    (f) Failure to respond to a petition for review of an initial 
determination, a petition for reconsideration of an initial 
determination, or an application for interlocutory review of an 
administrative law judge's order; and
* * * * *
    (h) Default by notice. A respondent may at any time before the 
filing of the final initial determination file a notice of intent to 
default with the presiding administrative law judge. Such default will 
be treated in the same manner as any failure to act under this section.
* * * * *
    16. Amend Sec.  210.21 by:
    a. Revising the second sentence of paragraph (b)(1);
    b. Adding three sentences to the end of paragraph (c) introductory 
text;
    c. Revising the third sentence of paragraph (c)(1)(ii);
    d Revising paragraph (c)(3); and
    e. Adding paragraphs (c)(4) and (5).
    The revisions and additions read as follows:


Sec.  210.21  Termination of investigations.

* * * * *
    (b) * * *
    (1) * * * The motion for termination by settlement shall contain 
copies of any documents referenced in the motion or attached 
agreements. * * *
* * * * *
    (c) * * * A motion for termination by consent order shall contain 
copies of the licensing or other settlement agreement, any supplemental 
agreements, and a statement that there are no other agreements, written 
or oral, express or implied between the parties concerning the subject 
matter of the investigation. If the licensing or other settlement 
agreement contains confidential business information within the meaning 
of Sec.  201.6(a) of this chapter, a copy of the agreement with such 
information deleted shall accompany the motion. If there are no 
additional agreements, the moving parties shall certify that there are 
no additional agreements.
    (1) * * *
    (ii) * * * The stipulation shall comply with the requirements of 
paragraph (c)(3) of this section. * * *
* * * * *
    (3) Contents of consent order stipulation--(i) Every consent order 
stipulation shall contain, in addition to the proposed consent order, 
the following:
    (A) An admission of all jurisdictional facts;
    (B) A statement identifying the asserted patent claims, copyright, 
trademark, mask work, boat hull design, or unfair trade practice, and 
whether the stipulation calls for cessation of importation, 
distribution, sale, or other transfers (other than exportation) of 
subject articles in the United States and/or specific terms relating to 
the disposition of existing U.S. inventories of subject articles.
    (C) An express waiver of all rights to seek judicial review or 
otherwise challenge or contest the validity of the consent order;
    (D) A statement that the signatories to the consent order 
stipulation will cooperate with and will not seek to impede by 
litigation or other means the Commission's efforts to gather 
information under subpart I of this part; and
    (E) A statement that the enforcement, modification, and revocation 
of the consent order will be carried out pursuant to subpart I of this 
part, incorporating by reference the Commission's Rules of Practice and 
Procedure.
    (ii) In the case of an intellectual property-based investigation, 
the consent order stipulation shall also contain--
    (A) A statement that the consent order shall not apply with respect 
to any claim of any intellectual property right that has expired or 
been found or adjudicated invalid or unenforceable by the Commission or 
a court or agency of competent jurisdiction, provided that such finding 
or judgment has become final and nonreviewable; and
    (B) A statement that each signatory to the stipulation who was a 
respondent in the investigation will not seek to challenge the validity 
of the intellectual property right(s), in any administrative or 
judicial proceeding to enforce the consent order.
    (C) The consent order stipulation may contain a statement that the 
signing thereof is for settlement purposes only and does not constitute 
admission by any respondent that an unfair act has been committed.
    (D) The consent order shall have the same force and effect and may 
be enforced, modified, or revoked in the same manner as is provided in 
section 337 of the Tariff Act of 1930 and this part for other 
Commission actions. The Commission may require periodic compliance 
reports pursuant to subpart I of this part to be submitted by the 
person entering into the consent order stipulation.
    (4) Contents of consent order. The Commission will not issue 
consent orders with terms beyond those provided for in this section, 
and will not issue consent orders that are

[[Page 41129]]

inconsistent with this section. The consent order shall contain:
    (i) A statement of the complainant, the respondent, the subject 
articles, and any allegation that the respondents sell for importation, 
import, or sell after importation the subject articles in violation of 
section 337 by reason of asserted patent claims, copyright, trademark, 
mask work, boat hull design, or unfair trade practice;
    (ii) A statement that the parties have executed a consent order 
stipulation (but the consent order shall not contain the terms of the 
stipulation);
    (iii) A statement that the respondent shall not sell for 
importation, import, or sell after importation the subject articles, 
directly or indirectly, and shall not aid, abet, encourage, participate 
in, or induce the sale for importation, the importation, or the sale 
after importation;
    (iv) A statement that respondent and its agents will not sell for 
importation, import, or sell after importation the subject articles 
except under consent, license from the complainant, or to the extent 
permitted by the settlement agreement between complainant and 
respondent;
    (v) A statement, if applicable, regarding the disposition of 
existing U.S. inventories of the subject articles.
    (vi) A statement, if applicable, whether the respondent would be 
ordered to cease and desist from importing and distributing articles 
covered by the asserted patent claims, copyright, trademark, mask work, 
boat hull design, or unfair trade practice;
    (vii) A statement that respondent shall be precluded from seeking 
judicial review or otherwise challenging or contesting the validity of 
the Consent Order;
    (viii) A statement that respondent shall cooperate with and shall 
not seek to impede by litigation or other means the Commission's 
efforts to gather information under subpart I of the Commission's Rules 
of Practice and Procedure, 19 CFR part 210;
    (ix) A statement that Respondent and its officers, directors, 
employees, agents, and any entity or individual acting on its behalf 
and with its authority shall not seek to challenge the validity or 
enforceability of the claims of the asserted patent claims, copyright, 
trademark, mask work, boat hull design, or unfair trade practice in any 
administrative or judicial proceeding to enforce the Consent Order;
    (x) A statement that when the patent, copyright, trademark, mask 
work, boat hull design, or unfair trade practice expires the Consent 
Order shall become null and void as to such;
    (xi) A statement that if any claim of the patent, copyright, 
trademark, mask work, boat hull design, or other unfair trade practice 
is held invalid or unenforceable by a court or agency of competent 
jurisdiction or as to any articles that has been found or adjudicated 
not to infringe the asserted right in a final decision, no longer 
subject to appeal, this Consent Order shall become null and void as to 
such invalid or unenforceable claim; and
    (xii) A statement that the investigation is hereby terminated with 
respect to the respondent; provided, however, that enforcement, 
modification, or revocation of the Consent Order shall be carried out 
pursuant to Subpart I of the Commission's Rules of Practice and 
Procedure, 19 CFR part 210.
    (5) Effect, interpretation, and reporting. The consent order shall 
have the same force and effect and may be enforced, modified, or 
revoked in the same manner as is provided in section 337 of the Tariff 
Act of 1930 and this part for other Commission actions. The Commission 
will not enforce consent order terms beyond those provided for in this 
section. The Commission may require periodic compliance reports 
pursuant to subpart I of this part to be submitted by the person 
entering into the consent order stipulation.
* * * * *

Subpart E--Discovery and Compulsory Process

    17. Amend Sec.  210.28 by:
    a. Adding two sentences at the end of paragraph (a); and
    b. Adding a sentence after the second sentence of paragraph (c).
    The additions read as follows:


Sec.  210.28  Depositions.

    (a) * * * Without stipulation of the parties, the complainants as a 
group may take a maximum of five fact depositions per respondent or no 
more than 20 fact depositions whichever is greater, the respondents as 
a group may take a maximum of 20 fact depositions total, and if the 
Commission investigative attorney is a party, he or she may take a 
maximum of 10 fact depositions and is permitted to participate in all 
depositions taken by any parties in the investigation. The presiding 
administrative law judge may increase the number of depositions on 
written motion for good cause shown.
* * * * *
    (c) * * * A party upon whom a notice of deposition is served may 
respond to and make objections to a notice of deposition within ten 
days of service of the notice of deposition. * * *
* * * * *
    18. Amend Sec.  210.29 by adding a sentence to the end of paragraph 
(a) to read as follows:


Sec.  210.29  Interrogatories.

    (a) * * * Any party may serve upon any other party written 
interrogatories not exceeding 175 in number including all discrete 
subparts, unless the parties stipulate otherwise or the presiding 
administrative law judge increases the number of interrogatories on 
written motion for good cause shown.
* * * * *
    19. Amend Sec.  210.34 by:
    a. Revising paragraph (b);
    b. Revising paragraph (c); and
    c. Removing the Note to Paragraph (c).
    The revisions read as follows:


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

* * * * *
    (b) Unauthorized disclosure, loss, or theft of information. If 
confidential business information submitted in accordance with the 
terms of a protective order is disclosed to any person other than in a 
manner authorized by the protective order, lost, or stolen, the party 
responsible for the disclosure, or subject to the loss or theft, must 
immediately bring all pertinent facts relating to such incident to the 
attention of the submitter of the information and the administrative 
law judge or the Commission, and, without prejudice to other rights and 
remedies of the submitter of the information, make every effort to 
prevent further mishandling of such information by the party or the 
recipient of such information.
    (c) Violation of protective order. (1) 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.

[[Page 41130]]

    (2) If the breach occurs while the investigation is before an 
administrative law judge, any determination on sanctions of the type 
enumerated in paragraphs (c)(3)(i) through (iv) of this section shall 
be in the form of a recommended determination. The Commission may then 
consider both the recommended determination and any related orders in 
making a determination on sanctions. When the motion is addressed to 
the administrative law judge for sanctions of the type enumerated in 
paragraph (c)(3)(v) of this section, he shall grant or deny a motion by 
issuing an order.
    (3) Any individual who has agreed to be bound by the terms of a 
protective order issued pursuant to paragraph (a) of this section, and 
who is determined to have violated the terms of the protective order, 
may be subject to one or more of the following:
    (i) An official reprimand by the Commission;
    (ii) Disqualification from or limitation of further participation 
in a pending investigation;
    (iii) Temporary or permanent disqualification from practicing in 
any capacity before the Commission pursuant to Sec.  201.15(a) of this 
chapter;
    (iv) Referral of the facts underlying the violation to the 
appropriate licensing authority in the jurisdiction in which the 
individual is licensed to practice;
    (v) Sanctions of the sort enumerated in Sec.  210.33(b), or such 
other action as may be appropriate.
* * * * *

Subpart G--Determinations and Actions Taken

    20. Amend Sec.  210.42 by:
    a. Revising the second sentence in paragraph (a)(1)(i); and
    b. Revising revising paragraph (c).
    The revisions read as follows:


Sec.  210.42  Initial determinations.

    (a)(1)(i) * * * 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 in an original investigation no 
later than 4 months before the target date set pursuant to Sec.  
210.51(a)(1).
* * * * *
    (c) On other matters. (1) The administrative law judge shall grant 
the following types of motions by issuing an initial determination or 
shall deny them by issuing an order: a motion to amend the complaint or 
notice of investigation pursuant to Sec.  210.14(b); a motion for a 
finding of default pursuant to Sec. Sec.  210.16 and 210.17; a motion 
for summary determination pursuant to Sec.  210.18; a motion for 
intervention pursuant to Sec.  210.19; a motion for termination 
pursuant to Sec.  210.21; a motion to suspend an investigation pursuant 
to Sec.  210.23; or a motion to set a target date for an original 
investigation exceeding 16 months pursuant to Sec.  210.51(a)(1); or a 
motion to set a target date for a formal enforcement proceeding 
exceeding 12 months pursuant to Sec.  210.51(a)(2).
    (2) The administrative law judge shall grant or deny the following 
types of motions by issuing an initial determination: a motion for 
forfeiture or return of respondents' bonds pursuant to Sec.  210.50(d) 
or a motion for forfeiture or return of a complainant's temporary 
relief bond pursuant to Sec.  210.70.
* * * * *
    21. Amend Sec.  210.43 by:
    a. Revising the first and third sentences of paragraph (a)(1);
    b. Removing the Note to Paragraph (b)(1);
    c. Revising paragraph (b)(2); and
    d. Revising paragraph (c).
    The revisions read as follows:


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

    (a) * * *
    (1) Except as provided in paragraph (a)(2) of this section, any 
party to an investigation may request Commission review of an initial 
determination issued under Sec.  210.42(a)(1) or (c), Sec.  
210.50(d)(3), Sec.  210.70(c), Sec.  210.75(b)(3) by filing a petition 
with the Secretary. * * * A petition for review of an initial 
determination issued under Sec.  210.42(c) that terminates the 
investigation in its entirety on summary determination, or an initial 
determination issued under Sec.  210.50(d)(3), Sec.  210.70(c) or Sec.  
210.75(b)(3), must be filed within 10 days after service of the initial 
determination.
* * * * *
    (b) * * *
    (2) The petition for review must set forth a concise statement of 
the facts material to the consideration of the stated issues, and must 
present a concise argument providing the reasons that review by the 
Commission is necessary or appropriate to resolve an important issue of 
fact, law, or policy. If a petition filed under this paragraph exceeds 
50 pages in length, it must be accompanied by a summary of the petition 
not to exceed ten pages. Petitions for review may not exceed 100 pages 
in length, exclusive of the summary and any exhibits. Petitions for 
review may not incorporate statements, issues, or arguments by 
reference. Any issue not raised in a petition for review will be deemed 
to have been abandoned by the petitioning party and may be disregarded 
by the Commission in reviewing the initial determination (unless the 
Commission chooses to review the issue on its own initiative under 
Sec.  210.44), and any argument not relied on in a petition for review 
will be deemed to have been abandoned and may be disregarded by the 
Commission.
* * * * *
    (c) Responses to the petition. Any party may file a response within 
eight (8) days after service of a petition of a final initial 
determination under Sec.  210.42(a)(1), and within five (5) business 
days after service of all other types of petitions, except that a party 
who has been found to be in default may not file a response to any 
issue as to which the party has defaulted. If a response to a petition 
for review filed under this paragraph exceeds 50 pages in length, it 
must be accompanied by a summary of the response not to exceed ten 
pages. Responses to petitions for review may not exceed 100 pages in 
length, exclusive of the summary and any exhibits. Responses to 
petitions for review may not incorporate statements, issues, or 
arguments by reference. Any argument not relied on in a response will 
be deemed to have been abandoned and may be disregarded by the 
Commission.
* * * * *
    22. Amend Sec.  210.50 by:
    a. Revising the third sentence of paragraph (a)(4) introductory 
text;
    b. Adding a sentence at the end of paragraph (a)(4)(iii);
    c. Revising the first and last sentences of paragraph (d)(1)(i); 
and
    d. Revising the first and last sentences of paragraph (d)(1)(ii).
    The revisions and addition read as follows:


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

* * * * *
    (a) * * *
    (4) * * * Submissions by the parties under this paragraph in 
response to the recommended determination are limited to 5 pages, 
inclusive of attachments.
* * * * *
    (iii) * * * If a party, interested person, or agency files a 
confidential version of its submission, it shall file a public version 
of the submission at the same time.
    (d) * * *
    (1)(i) If one or more respondents posts a bond pursuant to 19 
U.S.C. 1337(e)(1)

[[Page 41131]]

or 1337(j)(3), proceedings to determine whether a respondent's bond 
should be forfeited to a complainant in whole or part may be initiated 
upon the filing of a motion, addressed to the administrative law judge 
who last presided over the investigation, by a complainant within 90 
days after the expiration of the period of Presidential review under 19 
U.S.C. 1337(j), or if an appeal is taken from the determination of the 
Commission, within 30 days after the resolution of the appeal. * * * If 
that administrative law judge is no longer employed by the Commission, 
the motion shall be addressed to the chief administrative law judge.
    (ii) A respondent may file a motion addressed to the administrative 
law judge who last presided over the investigation for the return of 
its bond within 90 days after the expiration of the Presidential review 
period under 19 U.S.C. 1337(j), or if an appeal is taken from the 
determination of the Commission, within 30 days after the resolution of 
the appeal. * * * If that administrative law judge is no longer 
employed by the Commission, the motion shall be addressed to the chief 
administrative law judge.
* * * * *
    23. Amend Sec.  210.51 by revising paragraph (a) to read as 
follows:


Sec.  210.51  Period for concluding investigation.

    (a) Permanent relief. Within 45 days after institution of an 
original investigation on whether there is a violation of section 337, 
or an investigation which is a formal enforcement proceeding, the 
administrative law judge shall issue an order setting a target date for 
completion of the investigation. After the target date has been set, it 
can be modified by the administrative law judge for good cause shown 
before the investigation is certified to the Commission or by the 
Commission after the investigation is certified to the Commission.
    (1) Original investigations. If the target date does not exceed 16 
months from the date of institution of an original investigation, the 
order of the administrative law judge shall be final and not subject to 
interlocutory review. If the target date exceeds 16 months, the order 
of the administrative law judge shall constitute an initial 
determination. Any extension of the target date beyond 16 months, 
before the investigation is certified to the Commission, shall be by 
initial determination.
    (2) Formal enforcement proceedings. If the target date does not 
exceed 12 months from the date of institution of the formal enforcement 
proceeding, the order of the administrative law judge shall be final 
and not subject to interlocutory review. If the target date exceeds 12 
months, the order of the administrative law judge shall constitute an 
initial determination. Any extension of the target date beyond 12 
months, before the formal enforcement proceeding is certified to the 
Commission, shall be by initial determination.
* * * * *

Subpart H--Temporary Relief

    24. Amend Sec.  210.54 by revising the first sentence to read as 
follows:


Sec.  210.54  Service of motion by the complainant.

    Notwithstanding the provisions of Sec.  210.11 regarding service of 
the complaint by the Commission upon institution of an investigation, 
on the day the complainant files a complaint and motion for temporary 
relief, if any, with the Commission (see Sec.  210.8(a)(1) and (a)(2) 
of subpart B of this part), the complainant must serve non-confidential 
copies of both documents (as well as non-confidential copies of all 
materials or documents attached thereto) on all proposed respondents 
and on the embassy in Washington, DC of the country in which each 
proposed respondent is located as indicated in the Complaint. * * *
    25. Amend Sec.  210.56 by revising the third sentence of paragraph 
(a) to read as follows:


Sec.  210.56  Notice accompanying service copies.

    (a) * * * Upon receipt of the complaint, the Commission will 
examine the complaint for sufficiency and compliance with 19 CFR 210.4, 
210.5, 210.8, and 210.12. * * *
* * * * *
    26. Amend Sec.  210.58 by revising the third sentence to read as 
follows:


Sec.  210.58  Provisional acceptance of the motion.

     * * * Before the Commission determines whether to provisionally 
accept a motion for temporary relief, the motion will be examined for 
sufficiency and compliance with Sec. Sec.  210.52, 210.53(a) (if 
applicable), 210.54 through 210.56, as well as Sec. Sec.  210.4, and 
210.5. * * *
    27. Amend Sec.  210.59 by:
    a. Revising the introductory text to paragraph (b); and
    b. Revising paragraph (c).
    The revisions read as follows:


Sec.  210.59  Response to the motion and the complaint.

* * * * *
    (b) The response must comply with the requirements of Sec. Sec.  
210.4 and 210.5 of this part, and shall contain the following 
information:
* * * * *
    (c) Each response to the motion for temporary relief must also be 
accompanied by a response to the complaint and notice of investigation. 
Responses to the complaint and notice of investigation must comply with 
Sec. Sec.  210.4 and 210.5 of this part, and any protective order 
issued by the administrative law judge under Sec.  210.34 of this part.
    28. Amend Sec.  210.60 by:
    a. Revising the section heading;
    b. Designating the existing text as paragraph (a) and revising its 
first two sentences; and
    c. Adding paragraph (b).
    The revision and addition read as follows:


Sec.  210.60  Designating the temporary relief phase of an 
investigation more complicated for the purpose of adjudicating a motion 
for temporary relief.

    (a) At the time the Commission determines to institute an 
investigation and provisionally accepts a motion for temporary relief 
pursuant to Sec.  210.58, or at any time thereafter, the Commission may 
designate the temporary relief phase of an investigation ``more 
complicated'' pursuant to Sec.  210.60(b) for the purpose of obtaining 
up to 60 additional days to adjudicate the motion for temporary relief. 
In the alternative, after the motion for temporary relief is referred 
to the administrative law judge for an initial determination under 
Sec.  210.66(a), the administrative law judge may issue an order, sua 
sponte or on motion, designating the temporary relief phase of the 
investigation ``more complicated'' for the purpose of obtaining 
additional time to adjudicate the motion for temporary relief. * * *
    (b) A temporary relief phase is designated more complicated owing 
to the subject matter, difficulty in obtaining information, the large 
number of parties involved, or other significant factors.

Subpart I--Enforcement Procedures and Advisory Opinions

    29. Amend Sec.  210.75 by:
    a. Adding a sentence at the end of paragraph (b)(1); and
    b. Revising paragraph (b)(3).
    The revisions read as follows:


Sec.  210.75  Proceedings to enforce exclusion orders, cease and desist 
orders, consent orders, and other Commission orders.

* * * * *
    (b) * * *

[[Page 41132]]

    (1) * * * These proceedings are authorized under section 337(b) as 
investigations on whether there is a violation of section 337 in the 
same manner as original investigations, and are conducted in accordance 
with the laws for original investigations as set forth in section 1337 
of title 19 and sections 554, 555, 556, 557, and 702 of title 5 of the 
United States Code and the rules of this part.
* * * * *
    (3) The Commission, in the course of a formal enforcement 
proceeding under this section, may hold a public hearing and afford the 
parties to the enforcement proceeding the opportunity to appear and be 
heard. The Commission may delegate the hearing to the chief 
administrative law judge for designation of a presiding administrative 
law judge, who shall certify an initial determination to the 
Commission. A presiding administrative law judge shall certify the 
record and issue the enforcement initial determination to the 
Commission no later than three months before the target date for 
completion of a formal enforcement proceeding. Parties may file 
petitions for review, and responses thereto, in accordance with Sec.  
210.43 of this part. The enforcement initial determination shall become 
the determination of the Commission 45 days after the date of service 
of the enforcement initial determination, unless the Commission, within 
45 days after the date of such service, shall have ordered review of 
the enforcement initial determination on certain issues therein, or by 
order shall have changed the effective date of the enforcement initial 
determination.
* * * * *
    30. Amend Sec.  210.76 by adding paragraph (c) to read as follows:


Sec.  210.76  Modification or rescission of exclusion orders, cease and 
desist orders, and consent orders.

* * * * *
    (c) Comments. Parties may submit comments on the recommended 
determination within 10 days from the service of the recommended 
determination. Parties may submit responses thereto within 5 business 
days from service of any comments.
    31. Revise appendix A to read as follows:

Appendix A to Part 210-Adjudication and Enforcement

----------------------------------------------------------------------------------------------------------------
                                                                                         Commission deadline for
                                         Petitions for review    Response to petitions    determining whether to
  Initial determination concerning:              due:                     due:              review the initial
                                                                                              determination:
----------------------------------------------------------------------------------------------------------------
1. Violation Sec.   210.42(a)(1).....  12 days from service of  8 days from service of   60 days from service of
                                        the initial              any petition.            the initial
                                        determination.                                    determination (on
                                                                                          private parties).
2. Summary initial determination that  10 days from service of  5 business days from     45 days from service of
 would terminate the investigation if   the initial              service of any           the initial
 it became the Commission's final       determination.           petition.                determination (on
 determination Sec.   210.42(c).                                                          private parties).
3. Other matters Sec.   210.42(c)....  5 business days from     5 business days from     30 days from service of
                                        service of the initial   service of any           the initial
                                        determination.           petition.                determination (on
                                                                                          private parties).
4. Forfeiture or return of             10 days from service of  5 business days from     45 days from service of
 respondents' bond Sec.                 the initial              service of any           the initial
 210.50(d)(3).                          determination.           petition.                determination (on
                                                                                          private parties).
5. Forfeiture or return of             10 days from service of  5 business days from     45 days from service of
 complainant's temporary relief bond    the initial              service of any           the initial
 Sec.   210.70(c).                      determination.           petition.                determination (on
                                                                                          private parties).
6. Formal enforcement proceedings      10 days from service of  5 business days from     45 days from service of
 Sec.   210.75(b).                      the enforcement          service of any           the enforcement
                                        initial determination.   petition.                initial determination
                                                                                          (on private parties).
----------------------------------------------------------------------------------------------------------------

    32. Add appendix B to read as follows:

Appendix B to Part 210--Adjudication and Enforcement

------------------------------------------------------------------------
  Recommended determination                         Response to comments
         concerning:              Comments due:             due:
------------------------------------------------------------------------
Modification or Rescission    10 days from service  5 business days from
 Sec.   210.76(a)(1).          of the recommended    service of any
                               determination.        comments.
------------------------------------------------------------------------


    Issued: July 2, 2012.

    By Order of the Commission.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-16603 Filed 7-11-12; 8:45 am]
BILLING CODE 7020-02-P