Rules of General Application, Adjudication and Enforcement, 21140-21164 [2018-09268]

Download as PDF 21140 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations INTERNATIONAL TRADE COMMISSION 19 CFR Parts 201 and 210 Rules of General Application, Adjudication and Enforcement International Trade Commission. ACTION: Final rule. AGENCY: 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. The intended effect of the proposed amendments is to facilitate compliance with the Commission’s Rules and improve the administration of agency proceedings. DATES: Effective June 7, 2018. The rule amendments as stated herein shall apply to investigations instituted subsequent to the aforementioned date. FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the General Counsel, United States International Trade Commission, telephone 202–708–2301. Hearingimpaired 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 http://www.usitc.gov. SUPPLEMENTARY INFORMATION: sradovich on DSK3GMQ082PROD with RULES2 SUMMARY: Background This rulemaking is an effort to improve provisions of the Commission’s existing Rules of Practice and Procedure. The Commission proposed amendments to its rules covering investigations under section 337 of the Tariff Act of 1930 (19 U.S.C. 1337), as amended (‘‘section 337’’), in order to increase the efficiency of its section 337 investigations and reduce the burdens and costs on the parties and the agency. The Commission published a notice of proposed rulemaking (‘‘NPRM’’) in the Federal Register at 80 FR 57553–64 (Sept. 24, 2015), proposing to amend the Commission’s Rules of Practice and Procedure concerning rules of general application, adjudication, and enforcement to make certain technical corrections, to clarify certain provisions, to harmonize different parts of the VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 Commission’s rules, and to address concerns that have arisen in Commission practice. Consistent with its ordinary practice, the Commission invited the public to comment on all the proposed rules amendments. This practice entails the following steps: (1) Publication of an NPRM; (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. The NPRM requested public comment on the proposed rules within 60 days of publication of the NPRM, i.e., by November 23, 2015. The Commission received six sets of comments from organizations or law firms, including one each from the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘‘CCCME’’); the ITC Trial Lawyers Association (‘‘ITCTLA’’); the Intellectual Property Owners Association (‘‘IPOA’’); the ITC Working Group (‘‘ITCWG’’); the Law Office of T. Spence Chubb (‘‘Mr. Chubb’’); and the law firm of Adduci, Mastriani, & Schaumberg LLP (‘‘Adduci’’). The ITCWG consists of industry participants, including Apple, Avaya, Broadcom, Cisco, Google, Hewlett Packard, Intel, and Oracle among others. The Commission has 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 of the commentators in preparing their submissions. Regulatory Analysis of Amendments to the Commission’s Rules The Commission has determined that these rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, October 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 proposed rulemaking is required under 5 U.S.C. 553(b) or any other statute. Although the Commission chose to publish a notice of proposed rulemaking, these regulations are ‘‘agency rules of procedure and practice,’’ and thus are exempt from the notice requirement imposed by 5 U.S.C. 553(b). Moreover, these regulatory amendments are certified as not having a significant economic impact on a substantial number of small entities. These rules do not contain federalism implications warranting the preparation PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999). No actions are necessary under title II of the Unfunded Mandates Reform Act of 1995, Public Law 104–4 (2 U.S.C. 1531–1538) because the rules will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year (adjusted annually for inflation), and will not significantly or uniquely affect small governments. These rules are not ‘‘major rules’’ as defined by section 251 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 that Act because they contain rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. These rules do not contain any information collection requirements subject to the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Overview of the Amendments to the Regulations The final regulations contain eleven (11) changes from the proposals in the NPRM. These changes are summarized here. First, with regard to rule 201.16(f), relating to electronic service by parties, the Commission has determined that the rule should clarify that the administrative law judge may indicate by order what means are acceptable to ensure the document to be served is securely stored and transmitted by the serving party in a manner that prevents unauthorized access and/or receipt by individuals or organizations not authorized to view the specified confidential business information. Second, the Commission has determined to amend proposed rule 210.10(a)(6) to remove the stated criteria by which the Commission may determine to institute multiple investigations from a single complaint and substitute the single consideration of efficient adjudication. Third, the Commission has determined to amend proposed rule 210.10(b)(1) to clarify that the notice of investigation will define the scope of the investigation in plain language so as to make explicit what accused products or category of accused products will be the subject of the investigation in accordance with rule 210.12(a)(12), which governs the contents of the complaint. E:\FR\FM\08MYR2.SGM 08MYR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations Fourth, the Commission has determined to amend proposed rule 210.10(b)(3) to clarify that an initial determination ruling on a potentially dispositive issue in a 100-day proceeding is due within 100 days of institution of an investigation so designated. The rule is also amended to clarify that the presiding administrative law judge is authorized, in accordance with section 210.36, to hold expedited hearings on any such designated issue and will also have discretion to stay discovery of any remaining issues during the pendency of the 100-day proceeding. Fifth, the Commission has determined to amend proposed rule 210.14(h) to clarify that an administrative law judge may determine to sever an investigation into two or more investigations at any time prior to or upon thirty days from institution of the investigation. The rule will also clarify that severance may be based upon a motion from any party. The administrative law judge’s decision to sever will be in the form of an order. The newly severed investigation(s) shall remain with the same presiding administrative law judge unless the severed investigation is reassigned at the discretion of the chief administrative law judge. The new severed investigation(s) will be designated with a new investigation number. The final rule also removes limiting criteria for an administrative law judge to sever an investigation beyond the consideration of efficient adjudication. Sixth, with regard to proposed rule 210.14(i), the Commission has determined that administrative law judges will not be able to designate potentially dispositive issues for inclusion in a 100-day proceeding following institution of an investigation. Therefore, proposed rule 210.14(i) will not appear in the final rules. Seventh, the Commission has determined to amend proposed rule 210.15 to clarify that the rule is intended to prohibit the filing of any motions before the Commission during preinstitution proceedings except with respect to motions for temporary relief filed under rule 210.53. Eighth, regarding proposed rule 210.22, the Commission has determined that administrative law judges will not be able to designate potentially dispositive issues for inclusion in a 100day proceeding following institution of an investigation. Therefore, proposed rule 210.22, which allows parties for file a request for such designation by motion, will not appear in the final rules. VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 Ninth, regarding proposed rule 210.32(d)(1), the Commission has determined to amend the proposed rule to clarify that a party may serve subpoena objections within the later of 10 days after receipt of the subpoena or within such time as the administrative law judge may allow. In addition, the proposed rule is amended to clarify that, if an objection is made, the party that requested the subpoena may move for a request for judicial enforcement upon reasonable notice to other parties or as otherwise provided by the administrative law judge who issued the subpoena. Similarly, the Commission has determined to amend proposed rule 210.32(d)(2) to clarify that a party may file a motion to quash a subpoena within the later of 10 days after receipt of the subpoena or within such time as the administrative law judge may allow. Tenth, regarding proposed rule 210.42(a)(3), because the Commission has determined not to implement proposed rule 210.14(i) allowing administrative law judges to designate potentially dispositive issues, the Commission has determined to remove all references to proposed rule 210.14(i) in the final version of rule. In addition, because the administrative law judges may sever investigations by order, the Commission has determined not to adopt proposed rule 210.42(c)(3). The Commission has also determined to add rule 210.42(h)(7) to specify that an initial determination issued pursuant to proposed rule 210.42(a)(3) will become the Commission’s final determination 30 days after issuance, absent review. Eleventh, regarding the proposed amendments to rule 210.43, the Commission has determined to amend proposed rule 210.43(a)(1) to clarify that petitions for review of an initial determination ruling on a potentially dispositive issue must be filed within five business days after service of the initial determination. The Commission has also determined to amend proposed rule 210.43(c) to clarify that the time for filing responses to petitions for review is five business days. A comprehensive explanation of the rule changes is provided in the sectionby-section analysis below. The sectionby-section analysis includes a discussion of all modifications suggested by the commentators. As a result of some of the comments, the Commission has determined to modify several of the proposed amendments, including deleting certain sections in the final rule as summarized above. The section-by-section analysis will refer to the rules as they appeared in the NPRM. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 21141 Section-by-Section Analysis 19 CFR Part 201 Subpart B—Initiation and Conduct of Investigations Section 201.16 Section 201.16 provides the general provisions for service of process and other documents. Section 201.16(a)(1) through (3) address allowed methods of service by the Commission and § 201.16(a)(4) addresses when such service is complete. In consideration of the Commission’s development of the capability to perfect electronic service, the NPRM proposed amending § 201.16(a)(1) and (4) to provide that the Commission may effect service through electronic means. Under the proposed rule, electronic service would be complete upon transmission of a notification from the Commission that the document has been placed in an appropriate secure repository for retrieval by the person, organization representative, or attorney being served, unless the Commission is notified that the notification was not received by the party served. In addition, § 201.16(f) authorizes parties to serve documents by electronic means. The NPRM proposed amending § 201.16(f) to require parties serving documents by electronic means to ensure that any such document containing confidential business information subject to an administrative protective order be securely transmitted, in addition to being securely stored, to prevent unauthorized access and/or receipt by individuals or organizations not authorized to view the specified confidential business information. All documents must currently be filed electronically by way of the Commission’s Electronic Document Information System pursuant to § 201.8(d). 201.16(a)(1) and (4) Comments Adduci generally supports the Commission’s efforts to effect electronic service. Adduci cautions, however, that allowing electronic service of process or documents on unrepresented parties may lead to notification issues, particularly with respect to service of complaints on named respondents, and result in due process challenges. Adduci proposes accordingly that the Commission delay electronic service until after the entity being served is represented by an attorney. Specifically, Adduci proposes the following language for § 201.16(a)(1): E:\FR\FM\08MYR2.SGM 08MYR2 21142 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations By mailing or delivering a copy of the document to the person to be served, to a member of the partnership to be served, to the president, secretary, other executive 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 before the Commission, by mailing, delivering, or serving by electronic means a copy to such attorney. . . . accommodate private party requests for specific service destinations unique to that party. 201.16(f) Comments The CCCME expresses concern with the statement in the proposed amendments to § 201.16(a)(4) that electronic service by the Commission is completed upon transmission of a notification from the Commission that the service document has been placed in an appropriate secure repository for retrieval by the appropriate party being served. The CCCME requests that § 201.16(a)(4) be worded to state explicitly that electronic service shall be made to the destination designated by the person, organization, representative or attorney being served rather than being placed in an unspecified repository for retrieval. sradovich on DSK3GMQ082PROD with RULES2 Commission Response The Commission considers Adduci’s concerns to be adequately addressed by the proposed amendment of § 201.16(a)(1) as stated in the NPRM. The proposed rule indicates that service is to be by mailing, delivery, or electronic service as appropriate. If the Commission is unable to effect electronic service because it lacks a viable email address or other electronic contact information for the intended recipient, then service would be by mailing or delivery. Before an investigation is instituted, the Commission typically does not have electronic contact information for proposed respondents or their representatives. Moreover, proposed respondents usually retain counsel before filing answers to the complaint and providing relevant contact information. As such, electronic service on a party before it retains counsel would be rare. If a party is in default, and thus never provides electronic contact information, the Commission would be unable to effect electronic service on that party. Regarding the CCCME’s comments concerning proposed rule 201.16(a)(4), the language requiring that any electronically served documents be placed in an appropriate repository for retrieval is purposely broad to encompass any secure service option, such as two-factor identification for a drop box. In order to avoid confusion and being overwhelmed with individual requests, the Commission declines to VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 The ITCTLA generally supports the proposed amendments to § 201.16, but expresses concern regarding the clarity of the proposed amendment to § 201.16(f). Specifically, the ITCTLA questions the vagueness of the requirement that service documents ‘‘be securely stored and transmitted by the serving party in a manner that prevents unauthorized access and/or receipt by individuals or organizations not authorized to view the specified confidential business information.’’ The ITCTLA notes that the administrative protective order and stipulations between the parties often describe the manner in which to secure and transmit electronic service of documents, and that administrative law judges and parties can continue to designate the manner of such transmission. The ITCTLA does, however, state that it ‘‘expects that the proposed language though vague provides sufficient flexibility for the parties and administrative law judges to delineate what it means to ‘be securely stored and transmitted.’ ’’ The IPOA expresses similar concerns that the proposed language of § 201.16(f) lacks detail sufficient to inform parties how to comply with the requirement that service documents be securely stored and transmitted. The IPOA suggests that the proposed rule could be improved by clarifying whether stipulations among the parties describing a manner of service satisfactory to all parties will satisfy the requirements of proposed rule 201.16(f). The ITCWG generally supports the proposed amendments to § 201.16, but expresses concern that the provision in § 201.16(f) stating that parties ‘‘may serve documents by electronic means in all matters before the Commission’’ could be construed to improperly include service of third-party subpoenas. The ITCWG asserts that service of third-party subpoenas should continue to adhere to current Commission practice to better ensure actual notification to the subpoenaed party in a timely manner. The CCCME also expresses concern regarding the meaning of ‘‘securely transmitted’’ in proposed rule 201.16(f). Mr. Chubb questions the need for the additional language in proposed rule 201.16(f) requiring secure transmission and storage when parties are effecting electronic service of confidential PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 documents. Mr. Chubb notes that § 201.16(f) has permitted parties to serve documents, including confidential documents, electronically since 2002 apparently without significant problems. Mr. Chubb suggests the Commission identify the problem with the current rule and address the details by which it expects parties to comply with the new procedures, as well as any additional burdens the new procedures will place on parties beyond those currently experienced. Mr. Chubb further suggests that, in the alternative, the Commission forgo any change to § 201.16(f) in favor of current practice. Commission Response Regarding the ITCTLA’s and IPOA’s concerns about the vagueness of the language in proposed rule 201.16(f), the ITCTLA is correct that the language is intended to encompass future improvements in technology. However, the Commission agrees that the proposed rule would benefit by specifying that the administrative law judge may indicate by order what means are acceptable. Regarding the ability of parties to stipulate as to the means of secure transmission or storage, any such stipulation would require approval by the administrative law judge, as the parties may suggest means that are not sufficiently secure. Furthermore, as to the CCCME’s comment, the requirement that documents be ‘‘securely transmitted’’ is intended to require parties to ensure transmitted documents are properly encrypted or otherwise formatted to prevent unauthorized access. The Commission does not consider further clarification necessary. Parties are reminded that, if they fail to properly safeguard confidential business information or business proprietary information, they may be subjected to investigations concerning the disclosure of any such information and that sanctions may be imposed for a breach of the administrative protective order. Concerning the ITCWG’s comments, the Commission agrees that service of third-party subpoenas may not be effected by electronic means. Service of third-party subpoenas may only be effected by mail or delivery. Lastly, regarding Mr. Chubb’s comments, the proposed amendments are intended to capture the realities of continuing improvements in processes and technology for transmitting information. The Commission is making efforts to continually safeguard confidential business information and business proprietary information, and the rules should reflect this intent while ensuring that parties using new technology are cognizant of the E:\FR\FM\08MYR2.SGM 08MYR2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations Commission’s concerns regarding the safekeeping of confidential information. Participants in Commission proceedings are reminded of their obligations to comply with Administrative Protective Orders (APOs) and that breaches of APOs are subject to serious sanctions. See 19 CFR 210.34; 82 FR 29322 (June 28, 2017). 19 CFR Part 210 sradovich on DSK3GMQ082PROD with RULES2 Subpart C—Adjudication and Enforcement Section 210.10 Section 337(b)(1) states that the ‘‘Commission shall investigate any alleged violation of this section on complaint under oath or upon its initiative.’’ 19 U.S.C. 1337(b)(1). Accordingly, § 210.10 provides for institution of section 337 investigations by the Commission based upon a properly filed complaint. See 19 CFR 210.10(a). The NPRM proposed adding § 210.10(a)(6) to clarify that the Commission may institute multiple investigations based on a single complaint where necessary to limit the number of technologies and/or unrelated patents asserted in a single investigation. In addition, § 210.10(b) provides that, when instituting an investigation, the Commission shall issue a notice defining the scope of the investigation, including whether the Commission has ordered the presiding administrative law judge to take evidence and to issue a recommended determination concerning the public interest. The NPRM proposed adding § 210.10(b)(1) to provide that the notice of investigation will specify in plain language the accused products that will be within the scope of the investigation in order to avoid disputes between the parties concerning the scope of the investigation. New § 210.10(b)(2) contains the existing language in § 210.10(b), which provides that the Commission may order the presiding administrative law judge to take evidence concerning the public interest. The Commission has established a ‘‘100-day’’ proceeding to provide for the disposition of potentially dispositive issues within a specified time frame following institution of an investigation. The NPRM proposed adding § 210.10(b)(3) to authorize the Commission to direct the presiding administrative law judge to issue an initial determination pursuant to new § 210.42(a)(3), as described below, on a potentially dispositive issue as set forth in the notice of investigation. The specified time frame for issuance of the initial determination is subject to an VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 extension of time for good cause shown. As set forth in the pilot program, the presiding administrative law judge will have discretion to stay discovery of all other issues during the pendency of the 100-day proceeding. The Commission notes that the 100day proceeding differs from a summary determination in that the administrative law judge’s ruling pursuant to this section is made following an evidentiary hearing. These changes are intended to provide a procedure for the early disposition of potentially dispositive issues identified by the Commission at institution of an investigation. This procedure is not intended to affect summary determination practice under section 210.18 whereby the administrative law judge may dispose of one or more issues in the investigation when there is no genuine issue as to material facts and the moving party is entitled to summary determination as a matter of law. Section 210.10(a)(6) Comments ITCTLA supports the Commission’s ability to institute multiple investigations based on a single complaint where necessary to limit the number of unrelated technologies and/ or unrelated patents asserted in a single investigation. ITCTLA notes, however, that where the same parties, same or similar accused products, same or similar domestic industry products, or same or similar defenses are presented or implicated by a single complaint, the scope of discovery, relevant issues and administration of the case may so overlap that instituting multiple investigations may lead to increased costs on the parties and use of Commission resources, or create inconsistencies or conflict between investigations, even notwithstanding technically different asserted patent families. The ITCTLA further notes that the circumstance is rare where a single complaint presents such different technologies and issues that institution of multiple investigations or severance of an investigation is in the best interest of the timely and efficient investigation of the complaint. ITCTLA proposed the following amended language for § 210.10(a)(6): The Commission may determine to institute multiple investigations based on a single complaint where necessary to allow efficient adjudication and limit the number of unrelated technologies and products and/or unrelated patents asserted in a single investigation. The IPOA comments that the proposed amendments addressing the PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 21143 Commission’s ability to institute multiple investigations from a single complaint are unnecessary given the existing, inherent power of administrative law judges to manage their dockets and limit the issues to be decided. The IPOA cautions that this power, including for example, requiring parties to present their cases within an allotted time, limiting the number of pages for witness statements, and limiting the amount of time allowed for live direct testimony, could be compromised by a requirement to split any complaint that fails to satisfy certain, currently unarticulated criteria. The IPOA does, however, propose that clear, enumerated factors governing multiple institutions should be indicated in the rule in order to provide notice to potential parties. The IPOA also suggests that the rules clarify whether a decision to institute multiple investigations can be appealed. The CCCME suggests that the rules be amended to allow respondents to submit a request for severance of an investigation and to object when the Commission determines to sever an investigation. The CCCME also proposes that the Commission provide detailed requirements for severing investigations (or instituting multiple investigations from a single complaint) to avoid abuse of the provision. Adduci expresses some skepticism about the need for proposed rule 210.10(a)(6), noting that administrative law judges are already adept at handling multiple-technology, multi-patent investigations and that issues are typically streamlined by the time the evidentiary hearing is held though discovery and other mechanisms, such as Markman proceedings. Adduci, however, recommends that the Commission provide the criteria it will consider in evaluating whether to institute multiple investigations based on a single complaint, noting that without such guidance, complainants will face difficulty in determining which technologies and patents to assert in a complaint. Adduci also notes that the proposed amendment provides no procedure to allow a complainant to avoid institution of multiple investigations under the proposed rule. Adduci contends this failure is potentially problematic as a complainant may not have the resources to litigate simultaneous investigations or may prefer to focus its efforts on a single investigation. Adduci notes that, even if a complainant were to withdraw and/or modify its complaint, there is no procedure through which it may learn what changes are necessary to avoid institution of simultaneous E:\FR\FM\08MYR2.SGM 08MYR2 21144 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 investigations. Adduci therefore proposes including a provision through which the Commission would notify the complainant of the specific bases that, unless modified, may result in institution of multiple investigations. Adduci further recommends modifying the proposed rule to provide the complainant an opportunity, prior to institution, to either withdraw and refile its complaint or to modify its complaint to avoid institution of multiple investigations. Adduci recommends that the Commission provide two weeks’ notice to a complainant that it intends to institute multiple investigations and identify how the patents and/or technologies would be split. Adduci recommends that the Office of Unfair Import Investigations could then be consulted and could advise the complainant on how to best modify its complaint to avoid institution of multiple investigations. Mr. Chubb generally supports the Commission having the authority to institute multiple investigations based on a single complaint. He also suggests the Commission consider whether § 210.10(a) should additionally be amended to authorize the Commission to institute consolidated investigations. Mr. Chubb notes that existing § 210.10(g) provides for post-institution consolidation, but that the rules do not provide for pre-institution consolidation. Mr. Chubb asserts that, as with situations involving the institution of multiple investigations from a single complaint, pre-institution consolidation would likely be rare. Mr. Chubb notes, however, that the Commission has experienced situations where there have been two pending complaints by a single complainant, and situations where there were two pending complaints by cross-parties. Mr. Chubb also notes that there have been newly filed complaints for which consolidation with an already instituted investigation would be appropriate. Mr. Chubb requests that if his proposed consolidation scheme cannot be considered in this rulemaking that his suggestions be considered for future rulemaking efforts. Commission Response Several commentators question the necessity of the proposed amendment to rule 210.10(a)(6), arguing that even where cases are complex, overlapping issues may require a single investigation. Several of the commentators further assert that the administrative law judges already have the ability to handle complex investigations without the need for the Commission preemptively determining VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 to institute multiple investigations from a single complaint. Assuming the Commission decides to adopt this provision, the commentators are nearly unanimous in stating that the proposed rule should state the criteria by which the Commission will determine to institute multiple investigations pursuant to the proposed rule. Only the ITCTLA proposed any language suggesting any such criteria, i.e., that the Commission will institute multiple investigations ‘‘where necessary to allow efficient adjudication and limit the number of unrelated technologies and products and/or unrelated patents in a single investigation.’’ Other commentators appear to prefer more precise enumerated criteria, rather than the more open-ended formulation the ITCTLA suggests. The Commission has determined to implement rule 210.10(a)(6) with the clarification that the Commission may determine to institute multiple investigations based on a single complaint for efficient adjudication. The Commission considers that providing specific criteria for applying the rule would be unduly restrictive and hamper the Commission’s flexibility with respect to managing investigations. The Commission, however, notes that instituting multiple investigations based on a single complaint would likely occur where the complaint alleges a significant number of unrelated technologies, diverse products, unrelated patents, and/or unfair methods of competition or unfair acts such that the resulting investigation, if implemented as one case, may be unduly unwieldy or lengthy. Several commentators also suggest that the Commission provide complainant(s) with notice when the Commission intends to institute multiple investigations and to allow complainant(s) to withdraw and refile a modified complaint to avoid multiple investigations. Requiring such notice, however, would hinder the Commission’s ability to institute investigations within 30 days as stated in rule 210.10(a)(1). Furthermore, rule 210.14(g) allows the Commission to consolidate investigations, providing a procedural mechanism to reunify investigations instituted based on a single complaint under appropriate circumstances. The Commission expects, however, that the Office of Unfair Import Investigations (‘‘OUII’’) will raise the issue of possible multiple investigations with complainants as part of the preinstitution draft complaint review process when these concerns are PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 apparent from the draft complaint. OUII may also suggest modification of the draft complaint during any pre-filing communications to avoid the institution of multiple investigations. While the Commission anticipates the issue may arise during the pre-institution complaint review process, the Commission will independently determine sua sponte whether multiple investigations are appropriate. IPOA requests that the proposed rule be clarified to indicate whether parties can appeal or object to the Commission’s decision to institute multiple investigations based on a single complaint. Assuming IPOA believes that the decision should be appealable to the U.S. Court of Appeals for the Federal Circuit (‘‘Federal Circuit’’), under section 337(c), the Commission notes that any decision to institute multiple investigations based on a single complaint is not a final determination on violation, making immediate appeal to the Federal Circuit unavailable. If the complainant objects to the Commission’s decision to institute multiple investigations, there are procedural mechanisms available to the complainant, such as a motion to terminate one or more of the multiple investigations or claims. Concerning Mr. Chubb’s comment that the Commission should allow preinstitution consolidation of investigations, consideration of such a rule is best tabled until the Commission undertakes a future rulemaking effort. Section 210.10(b)(1) Comments ITCTLA generally supports the Commission’s effort to provide notice and avoid disputes regarding the scope of the investigation. ITCTLA, however, cautions that the language of the proposed rule, i.e. ‘‘such plain language as to make explicit what accused products will be subject of the investigation,’’ is unclear. Specifically, ITCTLA asserts that it is unclear whether the phrase ‘‘plain language’’ relates to the requirement in current § 210.12(a)(12) of a ‘‘clear statement in plain English of the category of products accused . . . such as mobile devices, tablets, or computers,’’ or ‘‘explicit . . . accused products’’ refers more specifically to, for example, specific model names or numbers. ITCTLA proposes the following amended language for § 210.10(b)(1) to address the potential confusion: An investigation shall be instituted by the publication of a notice in the Federal Register. The notice will define the scope of the investigation in such plain language as to E:\FR\FM\08MYR2.SGM 08MYR2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations make explicit what accused products or category of accused products provided in accordance with § 210.12(a)(12) will be the subject of the investigation, and may be amended as provided in § 210.14(b) and (c). The IPOA supports proposed rule 210.10(b)(1) to the extent it narrows the variety of products potentially falling within the caption of an investigation to more readily identifiable categories of products, including downstream products. The IPOA, however, questions the meaning of the phrase ‘‘such plain language as to make explicit what accused products will be the subject of the investigation.’’ Similar to the ITCTLA, the IPOA suggests replacing this phrase in proposed rule 210.10(b)(1) with language borrowed from § 210.12(a)(12) concerning the requirement that a complaint ‘‘contain a clear statement in plain English of the category of product accused’’ to avoid potential inconsistencies. The IPOA specifically notes that it does not support interpreting the ‘‘plain language’’ phrase as requiring model numbers, which it asserts would be inconsistent with the scope of relief afforded under the trade laws and with longstanding Commission practice. The IPOA also suggests that to the extent the proposed rule is intended to narrow the scope of the notice of investigation in order to narrow discovery, administrative law judges should be permitted to extend discovery beyond the scope of the notice of investigation for good cause shown. Accordingly, the IPOA suggests the following amendments to the proposed rule: sradovich on DSK3GMQ082PROD with RULES2 An investigation shall be instituted by the publication of a notice in the Federal Register. The notice will define the scope of the investigation in such plain language, consistent with the requirement to provide in the Complaint a clear statement in plain English of the category of products accused pursuant to 19 CFR 210.12(a)(12), as to make explicit what one or more accused categories of products will be the subject of the investigation, and may be amended as provided in 210.14(b) and (c). Discovery beyond the scope of the investigation will be by leave of the administrative law judge for good cause shown. The ITCWG supports the proposed rule of § 210.10(b)(1) concerning specifying the scope of the investigation in plain language, noting that currently, complainants often seek improper discovery on product types that have not been formally accused. The ITCWG suggests, however, that the Commission may wish to consider modifying the proposed language to provide that the ‘‘type of accused products’’ be specified in the notice and, in particular, requiring that when software is accused, VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 the notice of investigation should enumerate the specific software at issue (e.g., Marshmallow) rather than merely defining the investigation in terms of devices (e.g., smartphones). The CCCME proposes that the description of the scope of an investigation includes the product code of the named respondents’ alleged infringing product to avoid ambiguity. Adduci recommends amending the proposed rule to clarify that the Federal Register notice should identify the categories of accused products rather than specific accused products. Adduci asserts that its proposed amendment would bring proposed rule 210.10(b)(1) in line with existing rule 210.12(a)(12), which requires that a complaint ‘‘[c]ontain a clear statement in plain English of the category of products accused.’’ See 19 CFR 210.1012(a)(12). Adduci suggests, in order to avoid inconsistencies between the complaint and the Federal Register notice of institution, that the notice use the same plain language as used in the complaint to define the categories of accused products. Adduci suggests the following amendments to proposed rule 210.10(b)(1): An investigation shall be instituted by the publication of a notice in the Federal Register. The notice will define the scope of the investigation in such plain language as to make explicit what categories of accused products will be the subject of the investigation, and may be amended as provided in § 210.14(b) and (c). Mr. Chubb discourages implementation of proposed rule 210.10(b)(1), asserting that the rule change would merely add a layer of regulatory complexity to what he calls a straightforward and routine process. Mr. Chubb contends that imposing a formulaic plain language requirement will not prevent disputes from arising as to what the scope of an investigation might be or the burden on the administrative law judge to resolve such disputes. Mr. Chubb cautions that the proposed rule is likely to create confusion by raising questions as to whether the language of the complaint itself continues to play a role in such determinations, especially in view of existing rule 210.12(a)(12), which requires a complainant to describe the accused products in the complaint with ‘‘a clear statement in plain English of the category of products accused.’’ See 19 CFR 210.12(a)(12). Mr. Chubb asserts that nothing in the current rules constrains the Commission’s ability to describe the accused products in whatever language it determines is the most appropriate, including ‘‘plain PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 21145 language’’ that makes explicit what the accused products are. Commission Response The majority of the commentators support adding the requirement to rule 210.10(b)(1) that the notice of investigation specify the scope of the investigation in plain language. Moreover, most of the commentators suggest that the proposed rule align with the current requirements in rule 210.12(a)(12), which requires the complaint to ‘‘[c]ontain a clear statement in plain English of the category of products accused.’’ 19 CFR 210.12(a)(12). In order to align the scope of the investigation stated in the notice of investigation with the statement concerning the scope as stated in the complaint, the Commission has determined to amend proposed rule 210.10(b)(1) to explicitly specify the correlation between that rule and 210.12(a)(12). The Commission rejects IPOA’s suggestion that discovery ‘‘beyond the scope of the investigation be permitted for good cause’’ as it is not clear what IPOA means by ‘‘beyond the scope of the investigation.’’ The Commission has considered ITCWG’s suggestion to require that the notice of investigation indicate specific types of software, and the CCCME’s suggestion that the notice indicate specific product codes. Requiring the notice of investigation to indicate accused products by specific names or model numbers does not comport with Commission practice. In particular, the Commission has long held that its remedies apply to any infringing product, not simply the products specifically adjudicated during an investigation. See, e.g., Certain Ground Fault Circuit Interrupters and Products Containing the Same, Inv. No. 337–TA– 615, Comm’n Op. (Pub. Version) at 27 (Mar. 26, 2009), rev’d on other grounds, General Protecht Group, Inc. v. Int’l Trade Comm’n, 619 F.3d 1303 (Fed. Cir. 2010). Identifying accused products with such specificity invites the risk of unduly restricting the scope, not only of an investigation, but also of any potential remedy the Commission may issue at the conclusion of that investigation. 210.10(b)(3) Comments The IPOA indicates that it generally supports the proposed rule changes involving the 100-day proceeding and that it does not support limiting by example the types of issues that may be designated as potentially dispositive. E:\FR\FM\08MYR2.SGM 08MYR2 21146 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations With respect to the statement in the NPRM concerning proposed § 210.10(b)(3) which provides that administrative law judges will have discretion to stay discovery during the pendency of a 100-day proceeding, the IPOA asserts that it is critical that the rules provide for a mandatory stay during the pendency of the proceeding and during any subsequent Commission review. Otherwise, the IPOA cautions, a party subject to a 100-day proceeding faces both a fast-track discovery/hearing on the potentially dispositive issue as well as the normal requirements of Commission discovery on other issues. The IPOA suggests the following amended language for proposed § 210.10(b)(3): sradovich on DSK3GMQ082PROD with RULES2 The Commission may order the administrative law judge to issue an initial determination as provided in § 210.42(a)(3)(i) and (ii) ruling on a potentially dispositive issue as set forth in the notice of investigation. The presiding administrative law judge is authorized, in accordance with section 210.36, to hold expedited hearings on any such designated issue and will also have discretion to stay discovery during the pendency of the 100-day proceeding. The Commission notes that, although the IPOA argues for a mandatory stay of the remainder of the investigation, the language it proposes leaves the decision to stay within the administrative law judge’s discretion. The ITCWG generally supports implementation of the 100-day proceeding in the rules and urges that the procedure be used in a greater number of cases. The ITCWG does not provide any specific comments concerning the proposed language of § 210.10(b)(3). The ITCWG does, however, note that the proposed rules do not require a stay of discovery on non-designated issues during pendency of a 100-day proceeding or during Commission review of the administrative law judge’s initial determination on the designated issue. Although the ITCWG acknowledges the comment in the NPRM that the administrative law judge has discretion to stay discovery during the pendency of a 100-day proceeding and subsequent Commission review, the ITCWG contends that any final rule should provide for a mandatory stay. The ITCWG cautions that otherwise, a party subject to a 100-day proceeding faces both fast-track discovery and a hearing on the 100-day issue, as well as the task of conducting normal discovery on the remaining issues, thus increasing the burden and expense of the investigation. The ITCTLA cautions that many of the provisions associated with the proposed 100-day proceeding present VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 significant problems and invite abuse. The ITCTLA asserts that administrative law judges already have sufficient discretion to consider potentially dispositive or otherwise significant issues on an expedited basis at their discretion and that the proposed amendments may unintentionally invite abuse or hamstring, rather than enlarge, the discretion of the administrative law judges on these issues. The ITCTLA notes the use of Markman hearings, during which judges may, at their discretion, take evidence, and where the schedule is set in the judge’s discretion, taking into account the particulars of the investigation. The ITCTLA also notes former Chief Judge Luckern’s practice of requesting written submissions by the parties on issues of particular concern prior to the evidentiary hearing. The ITCTLA further notes that Judge Lord has issued an order to show cause regarding domestic industry in a situation where the issue was potentially dispositive. The ITCTLA notes that instituting a specific single mechanism for the resolution of potentially dispositive issues may lead to the perception that administrative law judges lack the discretion to address dispositive issues at their own discretion and timeline. The ITCTLA also asserts that the occasions where a 100-day proceeding would be needed to dispose of an investigation early would be very rare, the potential for abuse in the majority of investigations would be great, and such proceedings would impose an increased burden on administrative law judges at the beginning of most investigations. Moreover, the ITCTLA asserts, were it to become increasingly common to address such issues as domestic industry or validity at the preliminary stages of an investigation, the increased number of hearings and the multi-stage discovery, as well as the resultant delay in proceeding with the investigation should the designated issue not dispose of the investigation, creates a strong potential for increased burden on the resources of the Commission and the parties, likely requiring the extension of target dates. The ITCTLA also notes that the Commission has not identified what constitutes a ‘‘potentially dispositive issue’’ and that it is unclear whether the issue must be capable of disposing of an entire investigation or whether, for example, lack of domestic industry on a subset of asserted patents would qualify. The ITCTLA also notes the Commission’s statement that the proposed 100-day proceeding differs from summary determination in that the ruling is made following an evidentiary PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 hearing, but cautions that this procedure would increase the number of evidentiary hearings, necessarily duplicating the efforts of the parties and resources of the Commission, while delaying the progress of the investigation. The ITCTLA concludes that it does not support the addition of a specific mechanism, apart from that set forth in proposed rule 210.10(b)(3) and currently permitted through motions for summary determination and the inherent discretion of the administrative law judges, for the resolution of potentially dispositive issues. Rather, the ITCTLA recommends, administrative law judges should be permitted to continue to exercise their discretion in the timing and conduct of proceedings to address such issues, including any additional hearings. While providing no direct comment on the wording of proposed rule 210.10(b)(3), the ITCTLA urges the Commission to reserve the 100-day proceeding for issues and investigations where it is apparent that the abbreviated proceeding is likely to dispose of the investigation. The ITCTLA cautions that extensive use of the procedure would otherwise delay discovery and proceeding to the merits of investigations for three months, which would also have the effect of extending target dates. Commission Response As summarized above, the IPOA and ITCWG generally support the Commission’s effort to codify its 100day program, but request that the rules provide for a mandatory stay of the remainder of the case during pendency of the 100-day proceeding rather than leaving a stay to the discretion of the administrative law judge. The ITCTLA, on the other hand, argues that the 100day program is unnecessary since administrative law judges already have ability to consider potentially dispositive issues on an expedited basis, for example, through the use of Markman proceedings or summary determinations. The ITCTLA asserts that use of the proposed 100-day proceeding could lead to the perception that the administrative law judges lack the authority to address dispositive issues at their own discretion and timeline. However, a purpose of the new rule is to provide the administrative law judges with an additional tool to efficiently adjudicate investigations. Administrative law judges will continue to have all the means currently at their disposal to adjudicate investigations as appropriate. The Commission notes the ITCTLA’s concern regarding the administrative E:\FR\FM\08MYR2.SGM 08MYR2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 burden on the administrative law judges, Commission, and parties with respect to additional discovery, hearings, and delay. However, the 100day proceeding is intended to adjudicate only issues which would entirely dispose of an investigation rather than to decide subsidiary issues, which are best addressed under other available procedures, such as the current summary determination procedure. As such, the types of issues appropriate for the 100-day proceeding are limited. However, identifying in the rules every potential issue that may be appropriate for a 100-day proceeding would unduly restrict the Commission’s ability to designate any issue it deems suitable and appropriate. Accordingly, the final rule specifies that a potentially dispositive issue is one that would dispose of the entire investigation without enumerating specific issues that would qualify. Regarding whether the Commission should impose a mandatory stay of the remainder of the investigation during pendency of a 100-day proceeding, the Commission has decided to leave any stays within the discretion of the administrative law judges. As such, the Commission declines to impose a mandatory stay as requested by the IPOA and ITCWG. Section 210.11 Section 210.11—in particular, § 210.11(a)—provides that the Commission will, upon institution of an investigation, serve copies of the nonconfidential version of the complaint and the notice of investigation upon the respondent(s), the embassy in Washington, DC of the country in which each respondent is located, and various government agencies. Section 210.11(a)(2) concerns service by the Commission when it has instituted temporary relief proceedings. The NPRM proposed amending § 210.11(a)(2)(i) to clarify that the Commission will serve on each respondent a copy of the nonconfidential version of the motion for temporary relief, in addition to the nonconfidential version of the complaint and the notice of investigation. No comments concerning the proposed amendments to rule 210.11 were received. The Commission has therefore determined to adopt proposed rule 210.11(a)(2)(i) as stated in the NPRM with a typographical correction. Section 210.12 Section 210.12 specifies the information that must be included in a complaint requesting institution of an VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 investigation under part 210. In particular, § 210.12(a)(9) details the information a complaint is required to include when alleging a violation of section 337 with respect to the infringement of a valid and enforceable U.S. patent. The NPRM proposed amending § 210.12(a)(9) by adding the requirement that complaints include the expiration date of each asserted patent. No comments concerning the proposed amendments to rule 210.12 were received. The Commission has therefore determined to adopt proposed rule 210.12(a)(9) as stated in the NPRM. Section 210.14 Section 210.14 provides for various pre- and post-institution actions, including amending the complaint and notice of investigation, making supplemental submissions, introducing counterclaims, providing submissions on the public interest, and consolidating investigations. The NPRM proposed amending section 210.14 to add paragraph (h), allowing the administrative law judge to sever an investigation into two or more investigations at any time prior to or upon issuance of the procedural schedule, based upon either a motion or upon the administrative law judge’s judgment that severance is necessary to allow efficient adjudication. The Commission sought in particular comments regarding whether the administrative law judge’s decision to sever should be in the form of an initial determination pursuant to new § 210.42(c)(3) or an order. The NPRM also proposed adding § 210.14(i), which would authorize the administrative law judge to issue an order designating a potentially dispositive issue for an early ruling under the 100-day procedure. The proposed rule would also provide authority for the presiding administrative law judge to hold expedited hearings on such dispositive issues in accordance with § 210.36. Section 210.14(h) Comments The IPOA notes several potential ‘‘unintended consequences’’ of the proposed severance rule, including: increased motions practice; motions for severance filed for the purpose of administrative law judge shopping; potential inconsistencies or conflicts in the results of severed investigations; inefficiency due to assigning severed cases to different administrative law judges with differing procedural schedules; and increased cost. The IPOA also notes that severance, PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 21147 presumably by an administrative law judge after institution, ‘‘would not only require a change to the notice of investigation, but also would warrant continuing the practice of Commission review.’’ Moreover, the IPOA proposes that clear, enumerated factors governing severance should be indicated in the rule in order to provide notice to potential parties. The IPOA also suggests that the rule should not tie the ability of a party to file a motion to sever an investigation pursuant to proposed rule 210.14(h) with issuance of the procedural schedule. The IPOA cautions that doing so could delay issuance of the procedural schedule for a considerable time while the severance motion is briefed and considered by the administrative law judge. The IPOA notes that the rule should also clarify whether severance begins with the administrative law judge’s order or after the Commission affirms, and how any severed investigations will be identified (e.g., with new numbers or by adding a, b, c, etc. to the end of the original investigation number). In addition, the IPOA contends that, consistent with current practice, motions impacting the notice of investigation be rendered by initial determination, an administrative law judge’s decision to sever an investigation should be issued as an initial determination pursuant to current § 210.42(c)(1). The ITCTLA supports allowing administrative law judges to sever an investigation where necessary to allow efficient adjudication. The ITCTLA cautions, however, that where parties, accused products, asserted domestic industry products, and asserted defenses presented in a complaint are similar, even notwithstanding technically different asserted patent families or different technologies, the scope of discovery, issues, and administration of the case may so overlap that severing an investigation into multiple investigations may lead to increased costs to the parties, more use of Commission resources, and/or create inconsistencies between investigations. The ITCTLA states that only in rare circumstances would a single complaint present such different technologies and issues that severance of an investigation would best serve the timely and efficient investigation of the complaint. As such, the ITCTLA cautions that the proposed rule may unintentionally encourage motions to sever, creating additional workload on administrative law judges at the onset of investigations. In addition, the ITCTLA expresses concern that an administrative law judge presiding over severed E:\FR\FM\08MYR2.SGM 08MYR2 21148 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations investigations would presumably create procedural schedules that either unduly push one investigation forward more quickly or else delays the second investigation. The ITCTLA also cautions that the need for multiple hearings, subpoenas, and motions where the parties are otherwise the same will likely create inefficiencies and possibly extend target dates. ITCTLA posits that, where issues are so dissimilar as to warrant multiple investigations, the complainant will likely itself limit or separate complaints or the Commission can address severance pre-institution. The ITCTLA also suggests the Commission provide guidelines or identify factors supporting severance in the commentary accompanying the final rule. Regarding the Commission’s request for comments addressing whether the administrative law judge’s decision to sever should be in the form of an initial determination or an order, the ITCTLA recommends that an order would be most appropriate so as to eliminate the time it takes to petition for review in the interest of expediting the investigation. The ITCTLA recommends the following amendment to proposed rule 210.14(h): sradovich on DSK3GMQ082PROD with RULES2 The administrative law judge may determine to sever an investigation into two or more investigations at any time prior to or upon thirty days from institution, based upon either a motion or upon the administrative law judge’s own judgment that severance is necessary to allow efficient adjudication and limit the number of unrelated technologies and products and/or unrelated patents asserted in a single investigation. The administrative law judge’s decision will be in the form of an [initial determination] order [pursuant to 210.41(c)(3)]. The ITCWG insists that proposed rule 210.14(h) is unnecessary as the Commission and administrative law judges have had no difficulties severing and consolidating investigations where appropriate. The ITCWG cautions that the proposed rule may have several unintended consequences, for example, inviting motions for severance and, thus, leading to increased motions practice. The ITCWG notes that the potential increase could be exacerbated by the proposed rule’s silence as to whether severed cases stay with the originally assigned administrative law judge, and that, if not, the rule could invite motions for severance that are actually attempts at ‘‘administrative law judge shopping.’’ The ITCWG suggests certain changes to proposed rule 210.14(h). Specifically, the ITCWG notes the proposed rule requires that the presiding administrative law judge make decisions on severance prior to issuance VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 of the procedural schedule. The ITCWG argues this requirement could delay issuance of the procedural schedule for a considerable time while a severance motion is briefed and considered by the administrative law judge. Furthermore, the ITCWG asserts, it is unclear whether severance would begin with issuance of the administrative law judge’s initial determination or after the Commission has affirmed the judge’s ruling. The ITCWG also notes that the proposed rule leaves unclear what standard would apply in determining whether patents and technology are sufficiently related. The ITCWG states that reference to the Federal Rules of Civil Procedure may provide guidance, but neglects to identify any specific rules the Commission should consider. Lastly, the ITCWG notes that the Commission should indicate how severed cases would be designated, such as with a new investigation number or with a suffix to the existing investigation number (e.g. by adding a, b, c, etc. to the end of the original investigation number). The CCCME requests that proposed rule 210.14(h) be amended to explicitly allow a respondent to file a motion to sever an investigation. The CCCME also suggests that the proposed rule should state clearly whether, after severance, the investigations will be presided over by the same administrative law judge. The CCCME further suggests the Commission provide detailed requirements for severance to avoid abuse of this procedure. Although Mr. Chubb generally supports implementation of proposed rule 210.14(h), he cautions that the procedure laid out in the proposed rule (and presumably proposed rule 210.22) would open up the early stages of many investigations to an influx of motions to sever with corresponding uncertainty, which could potentially disrupt the orderly initiation of the discovery process and other aspects of early case development. Mr. Chubb does note, however, that the same concern could be applied to the judge’s authority to consolidate cases under existing § 210.14(g), which has not in fact proven to be problematic. Specifically, Mr. Chubb points out that § 210.14(g) authorizes administrative law judges to consolidate investigations only where both investigations are already before the same judge, making cases where it might have applicability quite rare. Mr. Chubb asserts that this limitation would not be relevant in cases of severance, arguably making the applicability of severance more prevalent. With respect to whether the administrative law judge’s decision to PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 sever should be in the form of an order or an initial determination, Mr. Chubb suggests the decision should be by initial determination since severance significantly impacts the fundamental scope of one or more investigations, as well as the number of investigations the Commission undertakes. Mr. Chubb asserts that these are matters on which the Commission should automatically have a say. Lastly, Mr. Chubb suggests that instead of the currently proposed requirement that an administrative law judge determine whether to sever an investigation ‘‘at any time prior to or upon issuance of the procedural schedule,’’ that the proposed rule set a deadline of 30 days after publication of the notice of investigation. Mr. Chubb notes that the issuance of a procedural schedule is completely within a judge’s discretion and influenced by numerous factors which affect the timing of when such orders are issued and may vary widely from investigation to investigation. Commission Response The majority of the commenters agree that the administrative law judges should be able to sever investigations where a large number of technologies or unrelated patents are at issue. However, the commenters do note that the proposed rule could lead to increased motions practice and resultant delay. Several commenters request that the Commission provide criteria for severance under the rule, presumably suggesting any such criteria be consistent with proposed rule 210.10(a)(6). A majority of the commenters disagree with tying severance to issuance of the procedural schedule, with Mr. Chubb suggesting the Commission require the administrative law judge to act within of 30 days after publication of the notice of investigation. Lastly, the commenters express no consensus regarding whether the administrative law judge’s decision to sever should be in the form of an order or an initial determination. As with proposed rule 210.10(a)(6), the Commission declines to impose any rigid criteria for when an administrative law judge might determine that severing an investigation is appropriate. Rather, the Commission notes that severance may be appropriate where, for example, the complaint alleges a significant number of unrelated technologies, diverse products, unrelated patents, and/or unfair methods of competition and unfair acts such that the resulting investigation, if it proceeds as a single case, would be unduly unwieldy or lengthy. E:\FR\FM\08MYR2.SGM 08MYR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations Regarding whether the administrative law judge should issue a severance decision by order or initial determination, the ITCTLA suggests the administrative law judge should issue an order, while Mr. Chubb recommends the administrative law judge issue an initial determination. The ITCWG does not explicitly state a preference, but its response seems to assume that the administrative law judge would issue an initial determination. While the Commission agrees with Mr. Chubb’s point that severance of an investigation is a significant event, the Commission disagrees that it fundamentally impacts the scope of an investigation since no part of the complaint would be limited or broadened. Rather, only the administrative aspect of the investigation would be affected, which should not require Commission approval beyond the Commission’s initial decision to institute an investigation based on the complaint. The Commission has therefore amended proposed rule 210.14(h) to allow the presiding administrative law judge to sever an investigation by order. Mr. Chubb suggests a requirement that an administrative law judge decide whether to sever an investigation within 30 days after publication of the notice of investigation, noting that the timing for issuance of a procedural schedule varies with each investigation. The Commission agrees that the timing of the administrative law judge’s decision to sever should be predictable. The final rule provides that an administrative law judge may determine to sever an investigation at any time prior to or upon thirty days from institution of the investigation. Lastly, the ITCWG and CCCME request clarification regarding whether newly severed investigations will be assigned to new administrative law judges and how severed investigations will be designated. Regarding the first point, the final rule provides that the ‘‘new’’ investigation(s) will be assigned to the same administrative law judge unless the severed case is reassigned at the discretion of the chief administrative law judge. Moreover, if the Commission has delegated public interest fact finding to the administrative law judge in an investigation, the delegation shall continue to be in effect for any ‘‘new’’ investigations resulting from severance. In addition, the newly severed investigation(s) will be designated with a new investigation number. VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 Section 210.14(i) Comments The IPOA argues against adoption of a rule providing that a 100-day proceeding may be designated postinstitution sua sponte by the administrative law judge. The IPOA cautions that the administrative law judge is unlikely to be in a better position than the Commission to make an assessment concerning which issue(s) are appropriate for early disposition 30 days into an investigation. The IPOA further notes a conflict between proposed rules 210.14(i) and 210.22 in that the former allows an administrative law judge 30 days after institution to designate a potentially dispositive issue for early determination, while the latter allows parties to bring a motion for such designation within 30 days of institution. The IPOA suggest that it would be better if the rules stated that parties may bring a motion to designate, or the judge may designate sua sponte, within 30 days of institution, and to add a second deadline by which the judge must rule after a motion is fully briefed. The ITCWG notes a potential conflict between proposed rules 210.14(i) and 210.22 in that, since proposed rule 210.14(i) allows the administrative law judge 30 days after institution to designate an issue for early disposition it could arguably prevent the administrative law judge from ruling on a motion pursuant to proposed rule 210.22 after 30 days. The ITCWG suggests that, if the rules are implemented, the Commission should import 210.14(i) into 210.22, noting that parties may bring a motion to designate, or the judge may designate sua sponte, within 30 days. The ITCTLA argues that the circumstance where a dispositive issue is not raised before the Commission prior to institution, thus enabling the Commission to designate the issue preinstitution pursuant to proposed rule 210.10(b)(3), would suggest that the issue is not amenable to early identification and resolution. As such, the ITCTLA implies that administrative law judges should not be able to designate an issue post-institution, as enabled by proposed rule 210.14(i). The ITCTLA also suggests clarifying the interaction between proposed rules 210.14(i) and 210.22. Adduci cautions that it is unclear whether proposed rules 210.14(i) and 210.22 can coexist in the present form. Adduci suggests that, if the parties are permitted a certain period of time during which they may move for an order designating a potentially PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 21149 dispositive issue for an early ruling, the administrative law judge’s authority to issue such an order needs to exist for some time period thereafter. Adduci notes, however, that there should be a reasonable deadline for any such order, whether requested by the parties or issued sua sponte. To address the inconsistency, Adduci recommends that the Commission extend the administrative law judge’s authority beyond the current proposal of 30 days, for example, allowing the judge 45 days to issue an order designating an issue for early disposition, which would allow the judge 15 days to rule on a motion filed on the last day of the 30day window. Alternatively, Adduci suggests the deadline for parties to file a motion could be shortened, providing parties up to 21 days to file a motion under proposed rule 210.22 and setting a 14-day deadline (from the date of filing) for the administrative law judge to rule on the motion. Adduci notes this would allow parties up to three weeks to prepare and file a motion, while allowing the administrative law judge two full weeks to set a briefing schedule, consider the motion, and issue an order. Adduci suggests that the Commission should retain the 30-day limit allowing an administrative law judge to designate an issue for early disposition sua sponte pursuant to proposed rule 210.14. Adduci notes, however, that it is unclear whether the Commission actually intended to give the administrative law judge authority to issue an order designating a potentially dispositive issue for an early ruling sua sponte, or whether such an order would need to be in response to a party’s motion under proposed rule 210.22 (discussed below). Adduci requests that the Commission amend proposed rule 210.14(i) to explicitly clarify its intent. Mr. Chubb recommends that the Commission decline to enact proposed rule 210.14(i) until it has more experience with 100-day proceedings. Mr. Chubb asserts that providing administrative law judges with the authority to designate an issue for early disposition is likely to trigger disruptive motions practice with negative consequences, similar to his comments below with respect to proposed rule 210.22. Mr. Chubb cautions that this disruption may outweigh the marginal utility of providing administrative law judges with the authority to designate, sua sponte, potentially dispositive issues for early determination. Mr. Chubb notes that judges retain the authority to grant summary determination motions and the discretion to hold claim construction E:\FR\FM\08MYR2.SGM 08MYR2 21150 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations hearings and to make claim construction rulings prior to any final evidentiary hearing. Commission Response Of the three comments submitted regarding proposed rule 210.14(i), two caution against implementation of the rule, although for slightly different reasons. After further consideration and in view of the concerns expressed by the commentators, the Commission has determined not to implement proposed rule 210.14(i) at this time. Section 210.15 Section 210.15 provides the procedure and requirements for motions during the pendency of an investigation and related proceedings, whether before an administrative law judge or before the Commission. The proposed rule would amend § 210.15(a)(2) to clarify that this provision does not allow for motions, other than motions for temporary relief, to be filed with the Commission prior to institution of an investigation. sradovich on DSK3GMQ082PROD with RULES2 Comments Mr. Chubb states that the proposed amendment to § 210.15(a)(2) fails to clarify that rule 210.15 is not intended to allow pre-institution motions other than those for temporary relief. Rather, Mr. Chubb states that the proposed language leaves the rule ambiguous as to whether the proposed parties or others are permitted to file motions prior to institution. Mr. Chubb also asserts that the proposed rule mistakenly cites to current rule 210.52, which concerns motions for temporary relief filed with a complaint, and should instead cite to rule 210.53, which concerns motions for temporary relief filed after a complaint is filed but before the Commission determines to institute an investigation based on the complaint. Mr. Chubb suggests proposed rule 210.15(a)(2) be reworded as follows to directly state that motions are not permitted prior to institution, except for motions for temporary relief: When an investigation or related proceeding is before the Commission, all motions shall be addressed to the Chairman of the Commission. All motions shall be filed with the Secretary and shall be served upon each party. Motions may not be filed during a preinstitution proceeding except for motions for temporary relief as prescribed by § 210.53. Mr. Chubb also suggests that, in a future rulemaking, the Commission rescind Commission rule 210.53 noting that the rule is seldom if ever invoked because situations where circumstances warranting temporary relief arise only VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 between the filing of the complaint and institution 30 days later are almost inconceivable. Mr. Chubb further asserts that the rule runs contrary to the Commission’s goal of providing maximum notice and disclosure to proposed respondents and the public that temporary relief is being sought by a complainant. Commission Response The Commission agrees with Mr. Chubb that the current wording of proposed rule 210.15(a)(2) should be clarified to indicate that the rule is intended to prohibit the filing of any motions before the Commission during preinstitution proceedings except with respect to motions for temporary relief filed under 210.53. The Commission has determined to amend proposed rule 210.15(a)(2) accordingly. Section 210.19 Section 210.19 provides for intervention in an investigation or related proceeding. The NPRM proposed amending § 210.19 to clarify that motions to intervene may be filed only after institution of an investigation or a related proceeding. No comments concerning the proposed amendments to rule 210.19 were received. The Commission has therefore determined to adopt proposed rule 210.19 as stated in the NPRM. Section 210.21 Section 210.21(b)(2) and (c)(2) authorize the presiding administrative law judge to grant by initial determination motions to terminate an investigation due to settlement or consent order, respectively. The paragraphs further provide that the Commission shall notify certain government agencies of the initial determination and the settlement agreement or consent order. Those agencies include the U.S. Department of Health and Human Services, the U.S. Department of Justice, the Federal Trade Commission, the U.S. Customs Service (now U.S. Customs and Border Protection), and such other departments and agencies as the Commission deems appropriate. Currently, the Commission effects such notice through various electronic means, including posting a public version of the initial determination and public versions of any related settlement agreements or consent orders on its website. The proposed rule would amend § 210.21(b)(2) and (c)(2) to clarify that the Commission need not otherwise specifically notify the listed agencies regarding any such initial determination and related settlement agreements or PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 consent orders. This change is intended to conserve Commission resources and does not relieve the Commission of its obligation under section 337(b)(2) to consult with and seek advice and information from the indicated agencies as the Commission considers appropriate during the course of a section 337 investigation. The Commission has consulted with the agencies in question and they have not requested that the Commission provide direct notice beyond its current practice. In addition, § 210.21(c)(3) sets out the required contents of a consent order stipulation while § 210.21(c)(4) sets out the required contents of the consent order. The proposed rule would amend § 210.21(c)(3)(ii)(A) to conform to § 210.21(c)(4)(x), which requires that the consent order stipulation and consent order contain a statement that a consent order shall not apply to any intellectual property right that has been held invalid or unenforceable or to any adjudicated article found not to infringe the asserted right or found no longer in violation by the Commission or a court or agency of competent jurisdiction in a final, nonreviewable decision. The proposed rule would also amend § 210.21(c)(4)(viii) to add the phrase ‘‘any asserted patent claims,’’ delete the phrase ‘‘the claims of the asserted patent,’’ delete the second occurrence of the word ‘‘claims,’’ and add the word ‘‘claim’’ after ‘‘unfair trade practice’’ in the phrase ‘‘validity or enforceability of the claims of the asserted patent claims . . . unfair trade practice in any administrative or judicial proceeding to enforce the Consent Order[.]’’ The proposed rule would further amend § 210.21(c)(4)(x) to add the word ‘‘asserted’’ before ‘‘claim of the patent. . .’’ and to add the word ‘‘claim’’ after ‘‘or unfair trade practice . . .’’ The proposed rule also would add new § 210.21(c)(4)(xi) to require in the consent order an admission of all jurisdictional facts, similar to the provision requiring such a statement in the consent order stipulation (210.21(c)(3)(i)(A)). Comments Adduci notes that, while having no specific comments on or issues with the proposed amendments to § 210.21, it has some concerns with the rule which are not addressed by the proposed amendments. In particular, Adduci notes that § 210.21(c)(4) states that the ‘‘Commission will not issue consent orders with terms beyond those provided for in this section, and will not issue consent orders that are inconsistent with this section.’’ Adduci asserts that the language of the rule E:\FR\FM\08MYR2.SGM 08MYR2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 suggests that the Commission may issue consent orders that use language different from what is included in the rule so long as the proposed consent order does not contain any additional ‘‘terms’’ and is not inconsistent with the rule. Adduci states that the word ‘‘terms’’ could be interpreted either to mean the specific words used in the rule or to mean the general provisions of a consent order outlined in § 210.21(c)(3). Adduci notes that, in recent practice, the administrative law judges and the Commission have interpreted rule 210.21(c)(4) to mean that the language of a proposed consent order must mirror the exact language of the Commission rule (except where otherwise specifically permitted). Adduci cautions that, while this is a reasonable interpretation of the rule, some parties may not be aware of this practice, and extensive public and private resources are sometimes wasted negotiating and reviewing proposed consent orders that differ from the rules and are ultimately deemed noncompliant. Adduci recommends the Commission consider amending the language of rule 210.21(c)(4) to clarify its intent, stating, for example, that the ‘‘Commission will not issue consent orders with language that differs from that provided for in this section, except where specifically permitted.’’ Adduci further suggests the Commission clarify which portions of the consent order can differ from the prescribed language of the rule, such as when addressing disposition of existing inventory. Additionally, Adduci suggests the Commission remove the language stating that it will not issue consent orders that are inconsistent with the rules, arguing that such language is unnecessary since, under the recommended amendments, the rules would already limit the consent order to the prescribed language. Adduci recommends that, in lieu of its suggested amendments, to the extent the Commission will permit deviation from the specific language of rule 210.21(c)(3), the Commission should make clear in which sub-paragraphs it will permit alternate language. Commission Response The wording of proposed rule 210.21 is clear that the language of the consent order must be consistent with the language of the consent order stipulation except where otherwise specifically permitted. Because the amendments Adduci suggests were not part of the current rulemaking effort, the Commission has determined to reserve them for future consideration. No comments were received concerning the currently proposed amendments to rule VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 210.21. The Commission has therefore determined to adopt proposed rule 210.21 substantially as stated in the NPRM. Section 210.22 The proposed rule would add new § 210.22 to allow parties to file a motion within 30 days of institution of the investigation requesting the presiding administrative law judge to issue an order designating a potentially dispositive issue for an early ruling. The proposed rule would also provide authority for the presiding administrative law judge to hold expedited hearings on such issues in accordance with § 210.36. Comments The IPOA argues against adoption of a rule providing that a 100-day proceeding may be designated postinstitution by motion. The IPOA cautions that parties are unlikely to be in a better position than the Commission to make an assessment concerning which issue(s) are appropriate for early disposition 30 days into an investigation. The IPOA also asserts that the potential flood of unnecessary motions will take significant administrative law judge and attorney time and could contribute to overall delay. As discussed above, the IPOA further notes a conflict between proposed rules 210.14(i) and 210.22 in that the former allows an administrative law judge 30 days after institution to designate a potentially dispositive issue for early determination, while the latter allows parties to bring a motion for such designation within 30 days of institution. The IPOA suggest that it would be better if the rules stated that parties may bring a motion to designate, or the judge may designate sua sponte, within 30 days of institution, and to add a second deadline by which the judge must rule after a motion is fully briefed. The ITCWG expresses concern that proposed rule 210.22 may invite motions practice that will have no meaningful benefit. Specifically, the ITCWG cautions that it is unlikely that parties or the administrative law judge will be in a better position in the first 30 days of an investigation to assess whether an issue is suitable for early disposition than the Commission will be during its pre-institution review. The ITCWG notes, for example, that even if the parties were to serve discovery on potentially dispositive issues immediately upon institution, responses would not be due until after the expiration of the 30-day period. The ITCWG also notes that the proposed 30day period for filing a motion to PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 21151 designate an issue for early disposition would effectively foreclose the ability of intervenors to move for assignment in the program given the time a motion for intervention takes to be adjudicated. As discussed above, The ITCWG further notes a potential conflict between proposed rules 210.14(i) and 210.22 in that, since proposed rule 210.14(i) allows the administrative law judge 30 days after institution to designate an issue for early disposition it would likely prevent the administrative law judge from ruling on a motion filed 30 days after institution pursuant to proposed rule 210.22. The ITCWG suggests that, if the rules are implemented, the Commission should import § 210.14(i) into § 210.22, noting that parties may bring a motion to designate, or the judge may designate sua sponte, within 30 days. The ITCTLA cautions that, under proposed rule 210.22, many parties will move for the designation of a potentially dispositive issue, even where the issue is likely to be fact-intensive and has historically been examined in the regular course of an investigation. The ITCTLA further warns that such motions create the risk of burdening the administrative law judge with significant motion practice at the onset of many, if not most, investigations. As noted above, The ITCTLA also suggests clarifying the interaction between proposed rules 210.14(i) and 210.22. The ITCTLA states that, if the administrative law judge must rule on a motion pursuant to proposed rule 210.22 within the 30-day time limit of proposed rule 210.14(i), the deadline for filing such a motion should be sufficiently early to allow the other party to respond and the judge to rule within that timeframe. The ITCTLA notes that, if the administrative law judge is not bound by the time limit indicated in proposed rule 210.14(i), then there appears to be no time limit for ruling on a motion under proposed rule 210.22. In that case, the ITCTLA suggests that proposed rule 210.22 be changed to require the motion to be filed early enough to provide the opposing party an opportunity to respond and to give the administrative law judge an opportunity to rule on the motion in a similar timeframe as set forth in proposed rule 210.14(i). Accordingly, the ITCTLA suggests that proposed rule 210.22 require a moving party to file its request within 14 days of institution of an investigation and that the opposing party be given seven days to respond, allowing the administrative law judge to issue an order within the 30-day time limit set forth in proposed rule 210.14(i). E:\FR\FM\08MYR2.SGM 08MYR2 sradovich on DSK3GMQ082PROD with RULES2 21152 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations As noted above, Adduci also cautions that it is unclear whether proposed rules 210.14(i) and 210.22 can coexist in the present form. Adduci suggests that, if the parties are permitted a certain period of time during which they may move for an order designating a potentially dispositive issue for an early ruling, the administrative law judge’s authority to issue such an order needs to exist for some time period thereafter. Adduci notes, however, that there should be a reasonable deadline for any such order, whether requested by the parties or issued sua sponte. To address the inconsistency, Adduci recommends that the Commission extend the administrative law judge’s authority beyond the current proposal of 30 days, for example, allowing the judge 45 days to issue an order designating an issue for early disposition, which would allow the judge 15 days to rule on a motion filed on the last day of the 30day window. Alternatively, Adduci suggests the deadline for parties to file a motion could be shortened. Adduci cautions, however, that the Commission should be mindful that immediately following institution, many respondents are locating and evaluating counsel and have little time to assess the merits of the case, including whether there is a potentially dispositive issue appropriate for an early ruling. As such, Adduci notes that the Commission should exercise caution in shortening the time during which a party may file a motion under proposed rule 210.22 for an order designating an issue for early disposition. As a way to balance the concerns of allowing parties sufficient time to retain counsel and determine potentially dispositive issues with ensuring that the administrative law judge has sufficient time to set a briefing schedule and rule on such a motion, Adduci suggests providing parties up to 21 days to file a motion under proposed rule 210.22 and setting a 14-day deadline (from the date of filing) for the administrative law judge to rule on the motion. Adduci notes this would allow parties up to three weeks to prepare and file a motion, while allowing the administrative law judge two full weeks to set a briefing schedule, consider the motion, and issue an order. Mr. Chubb recommends the Commission decline to enact proposed rule 210.22 until the Commission and administrative law judges have more experience with 100-day proceedings. Mr. Chubb expresses concern that the Commission and administrative law judges will face significant difficulties if the Commission permits parties to file motions for 100-day proceedings and VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 the judges are given authority to initiate such proceedings upon motion after institution of an investigation. Mr. Chubb cautions that respondents will likely file such motions in many, if not a majority of cases, resulting in disruptive and expensive motions practice from the very beginning of an investigation. Mr. Chubb notes that respondents will have little to lose if their motion is denied, but if their motion is granted, there is the likely prospect of the target date being extended if early disposition proves unsuccessful. Mr. Chubb suggests that, should the Commission decide to adopt proposed rule 210.22, the Commission shorten the time for parties to file a motion for a 100-day proceeding to 15 days, arguing that allowing any additional time would impede the administrative law judge’s ability to rule on such a motion within the 30 days allocated in proposed rule 210.14(i). Mr. Chubb states that, together, proposed rules 210.14(i) and 210.22 would shorten the amount of productive time available in which to conduct a 100-day proceeding and thereby jeopardize the parties’ ability to prepare for and effectively participate in the proceeding. Commission Response The majority of the commenters recommend that the Commission not permit parties to request designation of potentially dispositive issues by motion, citing potential motions practice abuse, delay, and burden to the parties and the administrative law judge. After further consideration and in view of the concerns expressed by the commentators, the Commission has determined not to implement proposed rule 210.22 at this time. Section 210.25 Section 210.25 provides for the process by which a party may request, and the presiding administrative law judge or the Commission may grant, sanctions. In particular, § 210.25(a)(1) states the grounds for which a party may file a motion for sanctions. The NPRM proposed amending § 210.25(a)(1) to clarify that a motion for sanctions may be filed for abuse of discovery under § 210.27(g)(3). In addition, § 210.25(a)(2) provides that a presiding administrative law judge or the Commission may raise sanctions issues as appropriate. The NPRM proposed amending § 210.25(a)(2) to clarify paragraph (a)(2) regarding sanctions for abuse of discovery is § 210.27(g)(3). No comments concerning the proposed amendments to rule 210.25 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 were received. The Commission has therefore determined to adopt proposed rules 210. 25(a)(1) and (2) as stated in the NPRM. Section 210.27 Section 210.27 contains the general provisions governing discovery during a section 337 investigation or related proceeding. The NPRM proposed adding § 210.27(e)(5) to be consistent with Federal Rule of Civil Procedure 26 concerning the preservation of privilege between counsel and expert witnesses. In particular, the proposed rule specifies that privilege applies to communications between a party’s counsel and any expert witness retained on behalf of that party and to any draft reports or disclosures that the expert prepares at counsel’s behest. Section 210.27(g) details the requirements of providing appropriate signatures with every discovery request, response, and objection, and the consequences for failing to do so. The NPRM proposed amending § 210.27(g)(3) to clarify that a presiding administrative law judge or the Commission may impose sanctions if, without substantial justification, a party certifies a discovery request, response, or objection in violation of § 210.27(g)(2). No comments concerning the proposed amendments to rule 210.27 were received. The Commission has therefore determined to adopt proposed rules 210.27(e)(5) and (g)(3) as stated in the NPRM. Section 210.28 Section 210.28 provides for the taking, admissibility, and use of party and witness depositions. In particular, § 210.28(h)(3) provides that the deposition of a witness, whether or not a party, may be used for any purpose if the presiding administrative law judge finds certain circumstances exist. The NPRM proposed adding § 210.28(h)(3)(vi) to allow, within the discretion of the presiding administrative law judge, the use of agreed-upon designated deposition testimony in lieu of live witness testimony absent the circumstances enumerated in § 210.28(h)(3). No comments concerning the proposed amendments to rule 210.28 were received except for Mr. Chubb’s, expressing his approval and noting that allowing designated deposition testimony in lieu of live witness testimony at hearings would eliminate much disagreement and confusion regarding the propriety of this common practice. The Commission has therefore E:\FR\FM\08MYR2.SGM 08MYR2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations determined to adopt proposed rule 210.28(h)(3)(vi) as stated in the NPRM. sradovich on DSK3GMQ082PROD with RULES2 Section 210.32 Section 210.32 provides for the use of subpoenas during the discovery phase of a section 337 investigation. In particular, § 210.32(d) provides for the filing of motions to quash a subpoena that the presiding administrative law judge has issued. The NPRM proposed amending § 210.32(d) to clarify that a party upon which a subpoena has been served may file an objection to the subpoena within ten days of receipt of the subpoena, with the possibility of requesting an extension of time for filing objections for good cause shown. The NPRM also proposed amending § 210.32(d) to clarify that any motion to quash must be filed within ten days of receipt of the subpoena, with the possibility of requesting an extension of time for good cause shown. The proposed amendment is intended to bring the Commission’s subpoena practice into closer conformity with the Federal Rules of Civil Procedure. The Commission requested in particular comments concerning any potential conflicts that may arise from copending objections and motions to quash. In addition, § 210.32(f) authorizes the payment of fees to deponents or witnesses subject to a subpoena. The NPRM proposed amending § 210.32(f)(1) to clarify that such deponents and witnesses are entitled to receive both fees and mileage in conformance with Federal Rule of Civil Procedure 45(b)(1) and to correct the antecedent basis for ‘‘fees and mileage’’ as recited in § 210.32(f)(2). Comments The IPOA supports the proposed amendment to § 210.32(d) permitting service of objections to subpoenas. The IPOA does, however, express concern that having objections and motions to quash due within the same short tenday period will not provide adequate opportunity for parties to negotiate subpoena-related issues before a motion to quash must be filed. Accordingly, the IPOA recommends allowing 20 days to move to quash, which would permit parties some time to meet and confer regarding subpoena objections and possibly avoid motions practice without unduly delaying the investigation. The IPOA questions whether the removal of ‘‘motions to limit’’ from the proposed rule was intentional and intended to be subsumed into the new objections process. The IPOA also argues that the requirement for parties to show good cause for an extension of time to serve objections or to file motions to question VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 unduly restricts an administrative law judge’s ability to allow parties additional time or to permit parties to jointly agree on extensions. The IPOA suggests the following amendment to proposed rule 210.32(d)(1): Any objection to a subpoena shall be served in writing on the party or attorney designated in the subpoena within the later of 10 days after receipt of the subpoena or within such other time as the administrative law judge may allow or the party serving the subpoena may permit. [The administrative law judge may, for good cause shown, extend the time in which objections may be filed.] and proposed rule 210.32(d)(2): Any motion to quash a subpoena shall be filed within [10] the later of 20 days after receipt of the subpoena or within such other time as the administrative law judge may allow. [The administrative law judge may, for good cause shown, extend the time in which motions to quash may be filed.] The ITCTLA states that it appreciates the Commission’s efforts to bring its subpoena practice into closer conformity with the Federal Rules of Civil Procedure. The ITCTLA, however, expresses several concerns with the effect and clarity of proposed rule 210.32(d) and, in particular, the respective roles of objections and motions to quash. In particular, the ITCTLA notes that it supports the addition of a mechanism, like in Federal District Court, that permits a third party subject to a subpoena to serve objections to the subpoena. Specifically, the ITCTLA notes that proposed rule 210.32(d)(1) does not indicate the effect of filing such objections, whereas Fed. R. Civ. P. 45(d)(2)(B) provides that, if an objection is made, the party serving the subpoena may move for an order compelling compliance. The ITCTLA asserts that the proposed rule is unclear as to whether upon service of objections, the party has discharged its obligations with respect to the subpoena (thus shifting the burden to the party that requested the subpoena to move for a request for judicial enforcement) or whether the party subject to the subpoena must now simultaneously file both objections and a motion to quash if it seeks to limit a subpoena. The ITCTLA suggests that, if the intent of the proposed rule is the former, which would be more in keeping with the federal rules, the Commission amend the proposed rule as indicated below. The ITCTLA also questions the removal of the ‘‘motion to limit’’ language, noting that if the intent is to permit the option of filing objections if a party objects in part to a subpoena and to file a motion to quash if the subpoenaed party objects in full, such is not clear from the proposed rules or the PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 21153 NPRM. Lastly, the ITCTLA expresses concern over the requirement of good cause shown for any extension of time beyond ten days to serve objections or file a motion to quash. The ITCTLA asserts that the proposed rule unduly limits the ability of administrative law judges to permit additional time in their ground rules or to permit parties to jointly agree on extensions for objections without the need for a motion. In view of its comments, the ITCTLA suggests the following amendments to proposed rule 210.32(d)(1): Any objection to a subpoena shall be served in writing on the party or attorney designated in the subpoena within the later of 10 days after receipt of the subpoena or within such time as the administrative law judge may allow or the party or attorney designated in the subpoena may permit. [The administrative law judge may, for good cause shown, extend the time in which objections may be filed.] If an objection is made, the party that requested the subpoena may move for a request for judicial enforcement. and proposed rule 210.32(d)(2): Any motion to quash a subpoena shall be filed within the later of 10 days after receipt of the subpoena or within such time as the administrative law judge may allow. [The administrative law judge may, for good cause shown, extend the time in which motions to quash may be filed.] Adduci expresses concern that the 10day deadline in proposed rule 210.32(d)(2) for filing motions to quash, particularly in light of the proposed 10day deadline for objections under proposed rule 210.32(d)(1), will result in unnecessary motions to quash and waste private and public resources. Adduci states that, in practice, a party served with a subpoena should first serve its objections (as proposed in rule 210.32(d)(1)), and should thereafter have an opportunity to meet and confer with the requesting party on those objections before being required to file a motion to quash. Adduci notes that parties are often able to resolve disputes over a subpoena without the need for a motion to quash. Accordingly, Adduci recommends the Commission modify the language of proposed rule 210.32(d)(2) to require that any motion to quash be filed within twenty days of receipt of the subpoena. Furthermore, Adduci suggests the rule make clear that a motion to quash may be filed only if the movant: (1) Timely served objections pursuant to proposed rule 210.32(d)(1), and (2) met and conferred with the requesting party to make a good faith effort to resolve any issues that it has with the subpoena. Adduci states that offsetting the deadlines for objections and motions to quash would E:\FR\FM\08MYR2.SGM 08MYR2 21154 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations provide notice of the receiving party’s objections and allow sufficient time for the parties to attempt to resolve those issues without resorting to motions practice. Mr. Chubb notes that, in practice, motions to quash subpoenas are rarely filed within 10 days, since the parties will generally discuss the breadth of the subpoena before reaching an impasse that necessitates a motion to quash. Mr. Chubb suggests that, since it appears the Commission’s intent is that the time for motions to quash ultimately be determined by the administrative law judge, proposed rule 210.32(d)(2) should state so directly by expressly giving the judge the ability to set the time for filing motions to quash in the first instance, rather than the current proposal which is directed to extension of time for such motions. Mr. Chubb suggests the following language for proposed rule 210.32(d)(2): Any motion to quash a subpoena shall be filed within 10 days after receipt of the subpoena or within a period of time set by the administrative law judge. The administrative law judge may, for good cause shown, extend the time in which motions to quash may be filed. sradovich on DSK3GMQ082PROD with RULES2 Commission Response The Commission notes that the commenters seem to be conflating objections and motions to quash. As stated in Rule 45 of the Federal Rules of Civil Procedure, motions to quash are generally allowed only in specific circumstances. See FRCP 45(d)(3). The Federal Rules do not apply such strictures on the filing of objections to a subpoena. Rather, when a subpoenaed entity files an objection, the burden shifts to the requesting party, requiring the requester to file a motion to compel after notifying the subpoenaed entity. See FRCP 45(d)(2)(B). It is this precise burden shifting the Commission intended to capture with the proposed rule. Objections and motions to quash are generally intended to be mutually exclusive procedures though there may occasionally be overlap in how they are utilized. The Commission therefore disagrees with Adduci’s assumption that motions to quash may be filed only after the failure of negotiations following an objection pursuant to proposed rule 210.32(d)(1). The IPOA’s assumption that motions to limit were intended to be subsumed into the new objections process is partially correct. The Commission’s purpose is to align the Commission’s practice to Rule 45, which requires the requesting party to prove that information it seeks from the VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 subpoenaed party is relevant and not burdensome. In keeping with the Federal rules, the Commission has determined to clarify proposed rule 210.32(d)(2) to require, akin to current rule 210.33(a), which addresses motions to compel, that after an objection is made and negotiations fail, the requesting party must provide notice before seeking judicial enforcement. With respect to the requirement that administrative law judges can extend the time for filing objections or motions to quash only for good cause, the Commission accepts the solution proposed by the commenters to allow the judges to otherwise set the time. Based on the above discussion, the Commission has determined to adopt the amendments to rule 210.32(d) proposed by the ITCTLA, with the addition of the notice language from rule 210.33. That language indicates that the requesting party may also move for a request for judicial enforcement upon reasonable notice or as provided by the administrative law judge. For example, the administrative law judge may require that the parties meet and confer prior to the filing of the request for judicial enforcement. The Commission does not, however, accept the ITCTLA’s suggestion that the party or attorney designated in the subpoena may agree on the timing of responses without the input and approval of the administrative law judge. No comments were received concerning proposed rule 210.32(f). The Commission therefore adopts proposed rule 210. 32(f) as stated in the NPRM with a typographical correction. Section 210.34 Section 210.34 provides for the issuance of protective orders and for the remedies and sanctions the Commission may impose in the event of a breach of a Commission-issued administrative protective order. Section 210.34(c)(1) provides that the Commission shall treat the identity of any alleged breacher as confidential business information unless the Commission determines to issue a public sanction. Section 210.34(c)(1) also requires the Commission and the administrative law judge to allow parties to make submissions concerning these matters. The NPRM proposed amending § 210.34(c)(1) to remove the provision requiring the Commission or the administrative law judge to allow the parties to make written submissions or present oral arguments bearing on the issue of violation of a protective order and the appropriate sanctions therefor. The Commission and the administrative PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 law judge continue to have discretion to permit written submissions or oral argument bearing on administrative protective order violations and sanctions therefor. In the interest of preserving the confidentiality of the process, the Commission has decided that notification of all parties in an investigation regarding breach of a protective order may be inappropriate in many cases. Submissions from relevant persons will be requested as necessary and appropriate. Comments The IPOA supports the Commission and the administrative law judge having the discretion to permit parties to make written submissions or present oral arguments concerning administrative protective order violations. The IPOA contends, however, that it is unclear whether the proposed changes will affect the notice of an alleged or actual breach provided under current rule 210.34. The IPOA therefore recommends leaving current rule 210.34(c)(1) unchanged. The ITCWG cautions against implementation of proposed rule 210.34(c), arguing that the rule and the accompanying comment in the NPRM appear inconsistent. Specifically, ITCWG notes, the comment states that ‘‘notification of all parties in an investigation regarding breach of a protective order may be inappropriate in many cases,’’ while the proposed rule refers to the initiation of a sanctions inquiry by party motion, which presumably must be served on all parties to the investigation and filed on EDIS. The ITCWG states that the Commission’s comment that notice of an alleged administrative protective order breach will be provided at its discretion is at odds with the goal stated in the Strategic Plan that the Commission wishes to promote transparency and understanding in investigative proceedings. The ITCWG contends that the proposed rule appears to allow no notice to parties who are not directly involved in the alleged breach even though, the ITCWG insists, such knowledge could prove valuable in helping better secure the aggrieved party’s confidential business information going forward. The ITCWG argues that the Commission’s comment appears to suggest the Commission need not notify a party whose confidential business information may have been disclosed, presumably if it wasn’t that party who brought the potential breach to the Commission’s attention. The ITCWG cautions that, under the proposed rule, there is too much uncertainty regarding how much notice E:\FR\FM\08MYR2.SGM 08MYR2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES2 will be provided and how the process will operate, which could make parties reluctant to produce confidential business information in an investigation. Mr. Chubb states that he agrees with the Commission’s proposal to remove the mandatory provision from § 210.34(c)(1) that currently requires the Commission or the administrative law judge to allow all parties to make written submissions or present oral arguments on alleged protective order violations and sanctions, regardless of whether they are the alleged breacher or compromised party. Mr. Chubb notes that the proposed rule provides the Commission with the flexibility to accommodate the interest other parties may have in a protective order violation dispute and permit participation to an appropriate extent. Commission Response The comments from IPOA and the ITCWG reflect some basic differences between administrative protective order breach investigations that occur before administrative law judges and those that occur before the Commission. Breach investigations before administrative law judges may be more adversarial in nature, with notice being provided to the parties and parties having the opportunity to file submissions. Proceedings before the Commission, however, are more limited, with information concerning potential breaches provided on a need-to-know basis. The comments appear to be relevant primarily to proceedings before administrative law judges. As the preamble to the rule in the NPRM states, the proposed rule recognizes that notification of all parties regarding a breach investigation may not be appropriate in many cases, in particular, those initiated before the Commission. The proposed amendment, which removes the provision requiring the Commission or the administrative law judge to allow the parties to make written submissions or present oral arguments bearing on the issue of violation of a protective order and the appropriate sanctions, does not affect the ability of administrative law judges, or the Commission when deemed appropriate, to request such briefing. ITCWG raises the concern that the proposed rule suggests the Commission need not notify a party whose confidential business information may have been breached if that party did not notify the Commission of the potential breach. The Commission is concerned with preserving the confidentiality of the alleged breacher when an investigation into a potential breach of VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 an administrative protective order is initiated before the Commission. The Commission does not currently notify parties not directly involved in the alleged breach. However, in most situations, it is the owner of the confidential information who brings the need for an investigation to the Commission’s attention. Moreover, under § 210.34(b), which remains unchanged, the alleged breacher is required to notify the submitter of the confidential information. The Commission has therefore determined to adopt proposed rule 210.34 as stated in the NPRM. Section 210.42 Section 210.42 provides for the issuance of initial determinations by the presiding administrative law judge concerning specific issues, including violation of section 337 under § 210.42(a)(1)(i), on motions to declassify information under § 210.42(a)(2), on issues concerning temporary relief or forfeiture of temporary relief bonds under § 210.42(b), or on other matters as specified in § 210.42(c). The NPRM proposed adding § 210.42(a)(3), authorizing the presiding administrative law judge to issue an initial determination ruling on a potentially dispositive issue in accordance with a Commission order under new § 210.10(b)(3). In addition, the proposed rule would require the administrative law judge to certify the record to the Commission and issue the initial determination within 100 days of institution pursuant to 210.10(b)(3). The 100-day period may be extended for good cause shown. These changes are intended to provide a procedure for the early disposition of potentially dispositive issues identified by the Commission at institution of an investigation. This procedure is not intended to affect summary determination practice under § 210.18 whereby the administrative law judge may dispose of one or more issues in the investigation when there is no genuine issue as to material facts and the moving party is entitled to summary determination as a matter of law. Rather, this procedure differs from a summary determination proceeding in that the administrative law judge’s ruling pursuant to this section is made following an evidentiary hearing. The NPRM also proposed adding § 210.42(c)(3), authorizing the presiding administrative law judge to issue an initial determination severing an investigation into two or more investigations pursuant to new § 210.14(h). PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 21155 In addition, § 210.42(e) provides that the Commission shall notify certain agencies of each initial determination granting a motion for termination of an investigation in whole or part on the basis of a consent order or settlement, licensing, or other agreement pursuant to § 210.21, and notice of such other initial determinations as the Commission may order. Those agencies include the U.S. Department of Health and Human Services, the U.S. Department of Justice, the Federal Trade Commission, the U.S. Customs Service (now U.S. Customs and Border Protection), and such other departments and agencies as the Commission deems appropriate. The rule further states that the indicated agencies have 10 days after service of any such initial determinations to submit comments. Currently, the Commission effects such notice through various electronic means, including posting a public version of the initial determination on its website so that paper service is unnecessary. The NPRM proposed amending § 210.42(e) to remove the explicit requirement that the Commission otherwise provide any specific notice of or directly serve any initial determinations concerning terminations under § 210.21 on the listed agencies. This change is intended to conserve Commission resources and does not relieve the Commission of its obligation under section 337(b)(2) to consult with and seek advice and information from the indicated agencies as the Commission considers appropriate during the course of a section 337 investigation. The Commission has consulted with the agencies in question and they have not requested that the Commission provide direct notice beyond its current practice. Section 210.42(a)(3) Comments The IPOA, in accordance with its recommendation not to implement proposed rules 210.14(i) or 210.22, suggests the following amended language for proposed § 210.42(a)(3): The administrative law judge shall issue an initial determination ruling on a potentially dispositive issue in accordance with a Commission order pursuant to § 210.10(b)(3) [or an administrative law judge’s order issued pursuant to § 210.14(i) or § 210.22]. The administrative law judge shall certify the record to the Commission and shall file an initial determination ruling on the potentially dispositive issue designated pursuant to § 210.42(a)(3)(i) within 100 days, or as extended for good cause shown, of when the issue is designated by the Commission pursuant to § 210.10(b)(3) [or by the administrative law judge pursuant to § 210.14(i) or § 210.22]. E:\FR\FM\08MYR2.SGM 08MYR2 21156 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations The IPOA also argues that the proposed rules provide no deadline for the Commission to determine whether to issue its own determination on a 100day proceeding or to determine whether to review the administrative law judge’s 100-day initial determination. The IPOA proposes to add a paragraph (h)(7) to § 210.42(h): version of rule 210.42(a)(3). As noted above, the Commission has also determined to add rule 210.42(h)(7) to specify that an initial determination issued pursuant to proposed rule 210.42(a)(3) will become the Commission’s final determination within 30 days after service of the initial determination, absent review. An initial determination filed pursuant to § 210.42(a)(3) shall become the determination of the Commission 30 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. Section 210.42(c)(3) With respect to proposed rule 210.14(h) regarding severance of investigations by administrative law judges, the ITCTLA recommends the Commission authorize judges to act by order rather than initial determination, rendering proposed rule 210.42(c)(3) unnecessary. Mr. Chubb, on the other hand, argues that a decision to sever should be in the form of an initial determination. As stated above, the Commission has determined to allow administrative law judges to sever investigations by order. Accordingly, the Commission has determined not to adopt proposed rule 210.42(c)(3). sradovich on DSK3GMQ082PROD with RULES2 Mr. Chubb notes the Commission’s statement in the NPRM that proposed rule 210.42(a)(3) is not intended to affect summary determination practice. Mr. Chubb suggests the Commission confirm that motions for summary determination on any potentially dispositive issue that is the subject of a 100-day proceeding are still permitted, but that such motions should not become a basis for extending such proceedings beyond the 100 days. Commission Response The Commission has determined that clarification is needed regarding when an initial determination pursuant to proposed rule 210.42(a)(3) would become the Commission’s final determination. Section 210.42(h) concerns the timing of when an initial determination shall become the determination of the Commission absent review. Proposed rule 210.43(d)(1) (as discussed below) states that the Commission has 30 days to determine whether to review an initial determination concerning a dispositive issue. As such, the Commission adopts the IPOA’s proposed addition of § 210.42(h)(7) to specify that an initial determination issued pursuant to proposed rule 210.42(a)(3) will become the Commission’s final determination within 30 days after service of the initial determination, absent review. Regarding Mr. Chubb’s comment, the Commission does not intend the 100day procedure to affect summary determination practice during the course of a regular investigation. Therefore there is no need to change the current procedure for summary determinations as provided in § 210.18. Because the Commission has determined not to implement proposed rule 210.14(i) allowing administrative law judges to designate potentially dispositive issues, the Commission has determined to remove all references to proposed rule 210.14(i) in the final VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 Section 210.42(e) No comments concerning the proposed amendments to rule 210.42(e) were received. The Commission has therefore determined to adopt proposed rule 210.42(e) as stated in the NPRM. Section 210.43 Section 210.43 provides for the process by which a party may request, and the Commission may consider, petitions for review of initial determinations on matters other than temporary relief. In particular, § 210.43(a)(1) specifies when parties must file petitions for review based on the nature of the initial determination, and § 210.43(c) specifies when parties must file responses to any petitions for review. The NPRM proposed amending § 210.43(a)(1) to specify when parties must file petitions for review of an initial determination ruling on a potentially dispositive issue pursuant to new § 210.42(a)(3). The NPRM further proposed amending § 210.43(c) to specify when the parties must file responses to any such petitions for review. Under the proposed rule, parties are required to file a petition for review within five calendar days after service of the initial determination and any responses to the petitions within three business days after service of a petition. Section 210.43(d)(1) provides for the length of time the Commission has after service of an initial determination to determine whether to review the initial determination. The NPRM proposed amending § 210.43(d)(1) to specify that PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 the Commission must determine whether to review initial determinations on potentially dispositive issues pursuant to new § 210.42(a)(3) within 30 days of service of the initial determination. In addition, § 210.43(d)(3) provides that, if the Commission determines to grant a petition for review, in whole or in part, and solicits written submissions on the issues of remedy, the public interest, and bonding, the Secretary of the Commission shall serve the notice of review on all parties, the U.S. Department of Health and Human Services, the U.S. Department of Justice, the Federal Trade Commission, the U.S. Customs Service (now U.S. Customs and Border Protection), and such other departments and agencies as the Commission deems appropriate. Currently, the Commission effects such notice through various electronic means, including posting a public version of the notice on its website such that paper service is unnecessary. The NPRM proposed amending § 210.43(d)(3) to remove the explicit requirement that the Commission provide by way of direct service any such notice to the indicated agencies, thus conserving Commission resources. This change is intended to conserve Commission resources and does not relieve the Commission of its obligation under section 337(b)(2) to consult with and seek advice and information from the indicated agencies as the Commission considers appropriate during the course of a section 337 investigation. Comments The CCCME cautions that the time limits for filing petitions for review and petition responses under the proposed rule are too short for foreign parties. The CCCME recommends allowing seven calendar days for petitions for review and five business days for petition responses. Adduci notes that § 201.14 states that, for any deadline less than seven days, intermediate Saturdays, Sundays, and Federal legal holidays are excluded, effectively transforming a five calendar day deadline into a five business day deadline. Adduci therefore suggests the Commission modify proposed rule 210.42(a)(3) to require parties to file petitions for review of initial determinations pursuant to proposed rule 210.42(a)(3) within five business days, rather than five calendar days, thus bringing the proposed rule into conformity with the requirements of § 201.14. The ITCWG states that it does not support the proposed changes to rule E:\FR\FM\08MYR2.SGM 08MYR2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations 210.43(d)(3) that would change the method by which the Commission is required to provide notice of a grant of petition for review to the designated agencies. The ITCWG states that it does not believe the conservation of Commission resources by foregoing actual service in lieu of merely posting notice of the grant on the Commission’s website outweighs the burden placed on other agencies to monitor the Commission’s website for relevant notices for which they may wish to provide comment. sradovich on DSK3GMQ082PROD with RULES2 Commission Response With respect to proposed rule 210.43(a)(1), Adduci suggests that the rule should require that petitions for review of an initial determination ruling on a potentially dispositive issue be filed within five business days after service of the initial determination. CCCME argues that the proposed time, i.e. five calendar days, is too short for foreign parties. Adduci’s suggestion increases the time for filing to include any subsumed weekends, thus addressing CCCME’s concern. The Commission therefore has determined to amend proposed rule 210.43(a)(1) in accordance with this suggestion. Concerning proposed rule 210.43(c), the CCCME again argues that the proposed time for responding to such a petition, i.e., three business days, is too short for foreign parties. The Commission agrees and has determined that responses to petitions for review of initial determinations issued under new rule 210.42(a)(3) are due within five (5) business days of service of such petitions. The Commission therefore has determined not to adopt the proposed amendments to § 210.43(c), as the current rule, which states that responses to petitions for review of initial determinations other than those issued under § 210.42(a)(1) are due within five(5) business days of service of such petition, is sufficient to capture this new deadline. No comments were received regarding the proposed amendments to § 210.43(d)(1). The Commission has therefore determined to adopt proposed rule 210.43(d)(1) as stated in the NPRM. Regarding proposed rule 210.43(d)(3), the Commission notes that this amendment is consistent with similar amendments discussed previously in this notice for which no comments were received. The Commission has consulted with the agencies in question and they have not requested that the Commission provide direct notice beyond its current practice. The Commission has therefore determined to VerDate Sep<11>2014 22:13 May 07, 2018 Jkt 244001 adopt proposed rule 210.43(d)(3) as stated in the NPRM. Section 210.47 Section 210.47 provides the procedure by which a party may petition the Commission for reconsideration of a Commission determination. The NPRM proposed amending § 210.47 to make explicit the Commission’s authority to reconsider a determination on its own initiative. No comments concerning the proposed amendments to rule 210.47 were received. The Commission has therefore determined to adopt proposed rule 210.47 as stated in the NPRM. Section 210.50 Section 210.50, and in particular § 210.50(a)(4), requires the Commission to receive submissions from the parties to an investigation, interested persons, and other Government agencies and departments considering remedy, bonding, and the public interest. Section 210.50(a)(4) further requests the parties to submit comments concerning the public interest within 30 days of issuance of the presiding administrative law judge’s recommended determination. It has come to the Commission’s attention that members of the public are confused as to whether § 210.50(a)(4) applies to them since the post-recommended determination provision is stated immediately after the provision requesting comments from ‘‘interested persons.’’ The NPRM proposed amending § 210.50(a)(4) to clarify that the rule concerns postrecommended determination submissions from the parties. Given the variability of the dates for issuance of the public version of the recommended determinations and the general public’s lack of familiarity with Commission rules, post-recommended determination submissions from the public are solicited via a notice published in the Federal Register specifying the due date for such public comments. No comments concerning the proposed amendments to rule 210.50 were received. The Commission has therefore determined to adopt proposed rule 210.50(a)(4) as stated in the NPRM. Section 210.75 Section 210.75 provides for the enforcement of remedial orders issued by the Commission, including exclusion orders, cease and desist orders, and consent orders. Section 210.75(a) provides for informal enforcement proceedings, which are not subject to the adjudication procedures described in § 210.75(b) for formal enforcement proceedings. In Vastfame Camera, Ltd. PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 21157 v. Int’l Trade Comm’n, 386 F.3d 1108, 1113 (Fed. Cir. 2004), the Federal Circuit stated that the Commission’s authority to conduct enforcement proceedings stems from its original investigative authority under subsection 337(b) and its authority to issue temporary relief arises under subsection 337(e). Both subsections require that the Commission afford the parties the ‘‘opportunity for a hearing in conformity with the provisions of subchapter II of chapter 5 of title 5.’’ Id. at 1114–15. Section 210.75(a), which provides for informal enforcement proceedings, is therefore not in accordance with the Federal Circuit’s holding in Vastfame. Accordingly, the NPRM proposed deleting § 210.75(a). Section 210.75(b) currently provides that the Commission may institute a formal enforcement proceeding upon the filing of a complaint setting forth alleged violations of any exclusion order, cease and desist order, or consent order. The NPRM proposed amending § 210.75(b)(1), redesignated as 210.75(a)(1), to provide that the Commission shall determine whether to institute the requested enforcement proceeding within 30 days of the filing of the enforcement complaint, similar to the provisions recited in § 210.10(a), barring exceptional circumstances, a request for postponement of institution, or withdrawal of the enforcement complaint. Moreover, when the Commission has found a violation of an exclusion order, the Commission has issued cease and desist orders as appropriate. The NPRM proposed amending § 210.75(b)(4), redesignated as 210.75(a)(4), to explicitly provide that the Commission may issue cease and desist orders pursuant to section 337(f) at the conclusion of a formal enforcement proceeding. The proposed rule would also amend § 210.75(b)(5), redesignated as 210.75(a)(5), to include issuance of new cease and desist orders pursuant to new § 210.75(a)(4). Current § 210.75(a) Comments Mr. Chubb questions the Commission’s apparent reading of Vastfame as prohibiting the Commission from investigating potential violations of its remedial orders without engaging in full-blown due process adjudications under the Administrative Procedure Act. Mr. Chubb argues that such a reading would defy common sense and cripple the Commission’s ability to carry out its functions. Mr. Chubb contends that if only formal enforcement proceedings E:\FR\FM\08MYR2.SGM 08MYR2 21158 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations under current § 210.75 were permitted, an unacceptably large proportion of potentially violative behavior would go unscrutinized, since formal enforcement proceedings would not be appropriate in every situation. Mr. Chubb suggests that the Commission could remedy any concerns that use of the term ‘‘enforcement proceeding’’ in current rule 210.75(a) invokes Vastfame by using a different term such as ‘‘preliminary investigative activity.’’ Mr. Chubb notes that the Commission is specifically authorized under Section 603 of the Trade Act of 1974, 19 U.S.C. 2482, to engage in such preliminary investigations. Mr. Chubb therefore recommends the Commission retain § 210.75(a) as a vehicle for informal investigative activity, but avoid any concerns about potential conflicts with Vastfame by adopting the following revised language: Informal investigative activities may be conducted by the Commission, including through the Office of Unfair Import Investigations, with respect to any act or omission by any person in possible violation of any provision of an exclusion order, cease and desist order, or consent order. Such matters may be handled by the Commission through correspondence or conference or in any other way that the Commission deems appropriate. The Commission may issue such orders as it deems appropriate to implement and insure compliance with the terms of an exclusion order, cease and desist order, or consent order, or any part thereof. Any matter not disposed of informally may be made the subject of a formal proceeding pursuant to this subpart. sradovich on DSK3GMQ082PROD with RULES2 Commission Response Current section 210.75(a) states that the Commission may issue orders as a result of the ‘‘informal enforcement proceedings’’ provided for in the rule. 19 CFR 210.75(a). However, under Vastfame, the Commission’s investigation of a violation of remedial orders must be considered the same as an investigation under subsection 337(b) of the statute. The Commission’s authority to issue a remedy for violation of remedial orders cannot be altered merely by changing the verbiage used to describe the Commission’s investigative activity. 19 U.S.C. 2482 confers authority for conducing preliminary investigations before determining whether to institute either an initial investigation or an enforcement proceeding. This section of the statute does not provide authority for the Commission to conduct investigations that may potentially result in the Commission issuing a remedy. Based on the above discussion, the Commission has determined to adopt VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 the proposed amendment indicated in the NPRM to delete current § 210.75(a). Redesignated § 210.75(a) (currently § 210.75(b)(1)) Comments Mr. Chubb notes that the NPRM proposes amending redesignated § 210.75(a)(1) to impose a 30-day deadline to institute formal enforcement proceedings after a complaint for enforcement is filed. Mr. Chubb questions the necessity of a rule providing a fixed deadline for instituting formal enforcement proceedings since, as he states, the Commission has its own incentives, through internal deadlines and its Strategic Plan, to expeditiously process enforcement complaints. Mr. Chubb notes that the rules do not specify requirements for enforcement complaints as comprehensively as they do for violation complaints. Accordingly, Mr. Chubb asserts, the Commission may need to conduct more of a pre-institution investigation in many cases and seek supplementation from the complainant, making a rigid 30-day period unworkable. Additionally, Mr. Chubb contends that under the proposed 30-day rule, the Commission’s ability to comply will likely be heavily dependent on the Office of Unfair Import Investigations’ informal review of draft complaints. Mr. Chubb cautions that it is unclear whether enforcement complainants will take advantage of the Office of Unfair Import Investigations’ ability to review draft complaints. Moreover, Mr. Chubb warns that the 30-day institution proposal for formal enforcement proceedings is unrealistic because it fails to take into account the right of an enforcement respondent to respond to an enforcement complaint within 15 days of service. Mr. Chubb notes that, in instituting violation investigations, the Commission does not have to address such responses, which is another factor to consider in setting a deadline for institution of enforcement complaints. Mr. Chubb therefore suggests that, if the Commission intends to impose a regulatory deadline for the institution of formal enforcement proceedings, it allow at least 45 or 60 days. Commission Response The Commission acknowledges Mr. Chubb’s concerns regarding the Commission’s ability to meet the 30-day institution goal for enforcement proceedings as indicated in proposed rule (as redesignated) 210.75(a)(1). The Commission, however, has committed PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 itself to abide by a 30-day deadline in instituting formal enforcement investigations. Moreover, the revised rule allows for extending the deadline in the case of exceptional circumstances. The Commission also notes that the Office of Unfair Import Investigations does not review enforcement complaints. Moreover, enforcement complaints are served after institution and so the Commission does not consider responses to the complaint during the pre-institution period. 19 CFR 210.75(a)(1) formerly 19 CFR 210.75(b)(1). No comments were received concerning proposed rules (as redesignated) 210.75(a)(4) and (5). The Commission has therefore determined to adopt proposed rule (as redesignated) 210.75(a) as stated in the NPRM. Section 210.76 Section 210.76 provides the method by which a party to a section 337 investigation may seek modification or rescission of exclusion orders, cease and desist orders, and consent orders issued by the Commission. The NPRM proposed amending § 210.76(a) to clarify that this section is in accordance with section 337(k)(1) and allows any person to request the Commission to make a determination that the conditions which led to the issuance of a remedial or consent order no longer exist. The NPRM also proposed adding § 210.76(a)(3) to require that, when the requested modification or rescission is due to a settlement agreement, the petition must include copies of the agreements, any supplemental agreements, any documents referenced in the petition or attached agreements, and a statement that there are no other agreements, consistent with rule 210.21(b)(1). In addition, § 210.76(b) specifies that the Commission may institute such a modification or rescission proceeding by issuing a notice. The NPRM proposed amending § 210.76(b) to provide that the Commission shall determine whether to institute the requested modification or rescission proceeding within 30 days of receiving the request, similar to the provisions recited in § 210.10(a), barring exceptional circumstances, a request for postponement of institution, or withdrawal of the petition for modification or rescission. The proposed rule would further clarify that the notice of commencement of the modification or rescission proceeding may be amended by leave of the Commission. Under some circumstances, such as when settlement between the parties is the basis for E:\FR\FM\08MYR2.SGM 08MYR2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations delete rule 210.77 and reserve it for future use as stated in the NPRM. rescission or modification of issued remedial orders, institution and disposition of the rescission or modification proceeding may be in a single notice. Section 210.79 Comments Mr. Chubb asserts the Commission’s proposal to adopt a 30-day deadline for the institution of modification or rescission proceedings suffers from the same infirmities as the Commission’s proposal to adopt a 30-day deadline for the institution of enforcement proceedings under proposed rule 210.75. Mr. Chubb suggests, consistent with his recommendations concerning proposed rule 210.75, that the Commission reject the proposed amendments to § 210.76 or, in the alternative, lengthen the proposed 30day period to a 45 or 60-day period. Commission Response No comments were received concerning proposed rule 210.76(a). With respect to Mr. Chubb’s comment, the Commission has committed itself to abide by a 30-day deadline in instituting modification or rescission proceedings, but the revised rule allows for extending the deadline in the case of exceptional circumstances. The Commission has therefore determined to adopt proposed rule 210.76 as stated in the NPRM. sradovich on DSK3GMQ082PROD with RULES2 Section 210.77 Section 210.77 provides for the Commission to take temporary emergency action pending a formal enforcement proceeding under § 210.75(b) by immediately and without hearing or notice modify or revoke the remedial order under review and, if revoked, to replace the order with an appropriate exclusion order. As noted above, the Federal Circuit held in Vastfame that an enforcement proceeding requires that the parties be afforded an opportunity for a hearing. 386 F.3d at 1114–15. The procedure set forth in § 210.77 for temporary emergency action pending a formal enforcement proceeding, therefore, is not in accordance with the Federal Circuit’s holding in Vastfame. The proposed rule would, accordingly, delete § 210.77. No comments concerning the proposed deletion of rule 210.77 were received except for Mr. Chubb’s, stating his approval of the proposal and noting that the provision for ‘‘temporary emergency action’’ has seldom if ever been used by the Commission and, as noted in the NPRM, is of questionable legality in view of Vastfame. The Commission has therefore determined to VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 Section 210.79 provides that the Commission will, upon request, issue advisory opinions concerning whether any person’s proposed course of action or conduct would violate a Commission remedial order, including an exclusion order, cease and desist order, or consent order. The NPRM proposed amending § 210.79(a) to provide that any responses to requests for advisory opinions shall be filed within 10 days of service. The NPRM also proposed amending § 210.79(a) to provide that the Commission shall institute the advisory proceeding by notice, which may be amended by leave of the Commission, and the Commission shall determine whether to institute an advisory opinion proceeding within 30 days of receiving the request barring exceptional circumstances, a request for postponement of institution, or withdrawal of the request for an advisory opinion. Comments Mr. Chubb asserts the Commission’s proposal to adopt a 30-day deadline for the institution of advisory opinion proceedings suffers from the same infirmities as the Commission’s proposal to adopt a 30-day deadline for the institution of enforcement proceedings under proposed rule 210.75. Mr. Chubb suggests, consistent with his recommendations concerning proposed rule 210.75, that the Commission reject the proposed amendments to § 210.79 or, in the alternative, lengthen the proposed 30day period to a 45 or 60-day period. Commission Response The Commission again notes that it has committed itself to abide by a 30day deadline in instituting advisory opinion proceedings, but the revised rule allows for extending the deadline in the case of exceptional circumstances. The Commission has therefore determined to adopt proposed rule 210.79 as stated in the NPRM. List of Subjects 19 CFR Part 201 Administration practice and procedure, Reporting and record keeping requirements. 19 CFR Part 210 Administration practice and procedure, Business and industry, Customs duties and inspection, Imports, Investigations. PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 21159 For the reasons stated in the preamble, the United States International Trade Commission amends 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 A—Miscellaneous 2. Amend § 201.16 by revising paragraphs (a)(1), (a)(4), and (f) to read as follows: ■ § 201.16 Service of process and other documents. (a) * * * (1) By mailing, delivering, or serving by electronic means a copy of the document to the person to be served, to a member of the partnership to be served, to the president, secretary, other executive 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 before the Commission, by mailing, delivering, or serving by electronic means a copy to such attorney; or * * * * * (4) When service is by mail, it is complete upon mailing of the document. When service is by an express service, service is complete upon submitting the document to the express delivery service or depositing it in the appropriate container for pick-up by the express delivery service. When service is by electronic means, service is complete upon transmission of a notification that the document has been placed in an appropriate repository for retrieval by the person, organization, representative, or attorney being served, unless the Commission is notified that the notification was not received by the party served. * * * * * (f) Electronic service by parties. Parties may serve documents by electronic means in all matters before the Commission. Parties may effect such service on any party, unless that party has, upon notice to the Secretary and to all parties, stated that it does not consent to electronic service. If electronic service is used, no additional time is added to the prescribed period. However, any dispute that arises among parties regarding electronic service must E:\FR\FM\08MYR2.SGM 08MYR2 21160 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations be resolved by the parties themselves, without the Commission’s involvement. When a document served by electronic means contains confidential business information or business proprietary information subject to an administrative protective order, the document must be securely stored and transmitted by the serving party in a manner, including by means ordered by the presiding administrative law judge, that prevents unauthorized access and/or receipt by individuals or organizations not authorized to view the specified confidential business information. * * * * * PART 210—ADJUDICATION AND ENFORCEMENT § 210.11 Service of complaint and notice of investigation. 3. The authority citation for part 210 continues to read as follows: ■ Authority: 19 U.S.C. 1333, 1335, and 1337. Subpart B—Commencement of Preinstitution Proceedings and Investigations 4. Amend § 210.10 by adding paragraph (a)(6) and revising paragraph (b) read as follows: ■ sradovich on DSK3GMQ082PROD with RULES2 § 210.10 (3) The Commission may order the administrative law judge to issue an initial determination within 100 days of institution of an investigation as provided in § 210.42(a)(3) ruling on a potentially dispositive issue as set forth in the notice of investigation. The presiding administrative law judge is authorized, in accordance with § 210.36, to hold expedited hearings on any such designated issue and also has discretion to stay discovery of any remaining issues during the pendency of the 100day proceeding. * * * * * ■ 5. Amend § 210.11 by revising paragraph (a)(2)(i) to read as follows: (a) * * * (2) * * * (i) Copies of the nonconfidential version of the motion for temporary relief, the nonconfidential version of the complaint, and the notice of investigation upon each respondent; and * * * * * Subpart C— Pleadings Institution of investigation. (a) * * * (6) The Commission may determine to institute multiple investigations based on a single complaint where necessary to allow efficient adjudication. (b)(1) An investigation shall be instituted by the publication of a notice in the Federal Register. The notice will define the scope of the investigation in such plain language as to make explicit what accused products or category of accused products provided in accordance with § 210.12(a)(12) will be the subject of the investigation, and may be amended as provided in § 210.14(b) and (c). (2) The Commission may order the administrative law judge to take evidence and to issue a recommended determination on the public interest based generally on the submissions of the parties and the public under § 210.8(b) and (c). If the Commission orders the administrative law judge to take evidence with respect to the public interest, the administrative law judge will limit public interest discovery appropriately, with particular consideration for third parties, and will ensure that such discovery will not delay the investigation or be used improperly. Public interest issues will not be within the scope of discovery unless the administrative law judge is specifically ordered by the Commission to take evidence on these issues. VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 6. Amend § 210.12 by adding paragraph (a)(9)(xi) to read as follows: ■ § 210.12 The complaint. (a) * * * (9) * * * (xi) The expiration date of each patent asserted. * * * * * ■ 7. Amend § 210.14 by adding paragraph (h) to read as follows: § 210.14 Amendments to pleadings and notice; supplemental submissions; counterclaims; consolidation of investigations; severance of investigations. * * * * * (h) Severance of investigation. The administrative law judge may determine to sever an investigation into two or more investigations at any time prior to or upon thirty days from institution, based upon either a motion by any party or upon the administrative law judge’s own judgment that severance is necessary to allow efficient adjudication. The administrative law judge’s decision will be in the form of an order. The newly severed investigation(s) shall remain with the same presiding administrative law judge unless reassigned at the discretion of the chief administrative law judge. The severed investigation(s) will be designated with new investigation numbers. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 Subpart D—Motions 8. Amend § 210.15 by revising paragraph (a)(2) to read as follows: ■ § 210.15 Motions. (a) * * * (2) When an investigation or related proceeding is before the Commission, all motions shall be addressed to the Chairman of the Commission. All such motions shall be filed with the Secretary and shall be served upon each party. Motions may not be filed with the Commission during preinstitution proceedings except for motions for temporary relief pursuant to § 210.53. * * * * * ■ 9. Amend § 210.19 by revising the first sentence to read as follows: § 210.19 Intervention. Any person desiring to intervene in an investigation or a related proceeding under this part shall make a written motion after institution of the investigation or related proceeding. * * * ■ 10. Amend section 210.21 by ■ a. Revising paragraph (b)(2); ■ b. Removing paragraph (c)(2)(i); ■ c. Redesignating paragraph (c)(2)(ii) as paragraph (c)(2) and revising it; ■ d. Revising paragraph (c)(3)(ii)(A); ■ e. Revising paragraph (c)(4)(viii); ■ f. Revising paragraph (c)(4)(x) ■ g. Redesignating paragraph (c)(4)(xi) as (c)(4)(xii); and ■ h. Adding a new paragraph (c)(4)(xi) The revisions and additions read as follows: § 210.21 Termination of investigations. * * * * * (b) * * * (2) The motion and agreement(s) shall be certified by the administrative law judge to the Commission with an initial determination if the motion for termination is granted. If the licensing or other agreement or the initial determination contains confidential business information, copies of the agreement and initial determination with confidential business information deleted shall be certified to the Commission simultaneously with the confidential versions of such documents. If the Commission’s final disposition of the initial determination results in termination of the investigation in its entirety, a notice will be published in the Federal Register. Termination by settlement need not constitute a determination as to violation of section 337 of the Tariff Act of 1930. (c) * * * (2) Commission disposition of consent order. The Commission, after E:\FR\FM\08MYR2.SGM 08MYR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations considering the effect of the settlement by consent order upon the public health and welfare, competitive conditions in the U.S. economy, the production of like or directly competitive articles in the United States, and U.S. consumers, shall dispose of the initial determination according to the procedures of §§ 210.42 through 210.45. If the Commission’s final disposition of the initial determination results in termination of the investigation in its entirety, a notice will be published in the Federal Register. Termination by consent order need not constitute a determination as to violation of section 337. Should the Commission reverse the initial determination, the parties are in no way bound by their proposal in later actions before the Commission. (3) * * * (ii) * * * (A) A statement that if any asserted patent claim, copyright, trademark, mask work, boat hull design, or unfair trade practice claim has expired or is held invalid or unenforceable by a court or agency of competent jurisdiction or if any article 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 expired, invalid, or unenforceable claim or as to any adjudicated article; * * * * * (4) * * * (viii) 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 any asserted patent claims, copyright, trademark, mask work, boat hull design, or unfair trade practice claim in any administrative or judicial proceeding to enforce the Consent Order; * * * * * (x) A statement that if any asserted patent claim, copyright, trademark, mask work, boat hull design, or unfair trade practice claim is held invalid or unenforceable by a court or agency of competent jurisdiction or if any article 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 or adjudicated article; (xi) An admission of all jurisdictional facts; and * * * * * ■ 11. Amend § 210.25 by revising the first sentence of paragraph (a)(1) and paragraph (a)(2) to read as follows: VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 § 210.25 Sanctions. (a)(1) Any party may file a motion for sanctions for abuse of process under 210.4(d)(1), abuse of discovery under § 210.27(g)(3), failure to make or cooperate in discovery under § 210.33(b) or (c), or violation of a protective order under § 210.34(c). * * * (2) The administrative law judge (when the investigation or related proceeding is before the administrative law judge) or the Commission (when the investigation or related proceeding is before it) also may raise the sanctions issue sua sponte. (See also §§ 210.4(d)(1)(ii), 210.27(g)(3), 210.33(c), and 210.34(c).) * * * * * Subpart E—Discovery and Compulsory Process 12. Amend § 210.27 by adding paragraph (e)(5) and in paragraph (g)(3), by removing the phrase ‘‘If without substantial justification a request, response, or objection is certified in violation of paragraph (d)(2) of this section’’ and adding in its place ‘‘If without substantial justification a request, response, or objection is certified in violation of paragraph (g)(2) of this section,’’. The addition reads as follows: ■ § 210.27 General provisions governing discovery. * * * * * (e) * * * (5)(i) The provisions of § 210.27(e)(1) through (4) protect drafts of expert reports, regardless of the form in which the draft is recorded. (ii) The provisions of § 210.27(e)(1) through (4) protect communications between the party’s attorney and expert witnesses concerning trial preparation, regardless of the form of the communications, except to the extent that the communications: (A) Relate to compensation for the expert’s study or testimony; (B) Identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) Identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed. * * * * * ■ 13. Amend § 210.28 by revising paragraph (h)(3)(v) and adding paragraph (h)(3)(vi) to read as follows: § 210.28 * Depositions. * * (h) * * * (3) * * * PO 00000 Frm 00023 * Fmt 4701 * Sfmt 4700 21161 (v) Upon application and notice, that such exceptional circumstances exist as to make it desirable in the interest of justice and with due regard to the importance of presenting the oral testimony of witnesses at a hearing, to allow the deposition to be used; or (vi) Upon agreement of the parties and within the administrative law judge’s discretion, the use of designated deposition testimony in lieu of live witness testimony absent the circumstances otherwise enumerated in this paragraph is permitted. * * * * * ■ 14. Amend § 210.32 by revising paragraphs (d) and (f)(1) to read as follows: § 210.32 Subpoenas. * * * * * (d) Objections and motions to quash. (1) Any objection to a subpoena shall be served in writing on the party or attorney designated in the subpoena within the later of 10 days after receipt of the subpoena or within such time as the administrative law judge may allow. If an objection is made, the party that requested the subpoena may move for a request for judicial enforcement upon reasonable notice to other parties or as otherwise provided by the administrative law judge who issued the subpoena. (2) Any motion to quash a subpoena shall be filed within the later of 10 days after receipt of the subpoena or within such time as the administrative law judge may allow. * * * * * (f) * * * (1) Deponents and witnesses. Any person compelled to appear in person to depose or testify in response to a subpoena shall be paid the same fees and mileage as are paid to witnesses with respect to proceedings in the courts of the United States; provided, that salaried employees of the United States summoned to depose or testify as to matters related to their public employment, irrespective of the party at whose instance they are summoned, shall be paid in accordance with the applicable Federal regulations. * * * * * ■ 15. Amend § 210.34 by revising paragraph (c)(1) to read as follows: § 210.34 Protective orders; reporting requirement; sanctions and other actions. * * * * * (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 E:\FR\FM\08MYR2.SGM 08MYR2 21162 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations Commission’s own initiative in accordance with § 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 and the administrative law judge may permit the parties to file written submissions or present oral argument on the issues of the alleged violation of the protective order and sanctions. * * * * * Subpart G—Determinations and Actions Taken 16. Amend § 210.42 by adding paragraph (a)(3), revising paragraph (e), and adding paragraph (h)(7) to read as follows: ■ sradovich on DSK3GMQ082PROD with RULES2 § 210.42 Initial determinations. (a) * * * (3) On potentially dispositive issues. The administrative law judge shall issue an initial determination ruling on a potentially dispositive issue in accordance with a Commission order pursuant to § 210.10(b)(3). The administrative law judge shall certify the record to the Commission and shall file an initial determination ruling on the potentially dispositive issue designated pursuant to § 210.10(b)(3) within 100 days of institution, or as extended for good cause shown. * * * * * (e) Notice to and advice from other departments and agencies. Notice of such initial determinations as the Commission may order shall be provided to the U.S. Department of Health and Human Services, the U.S. Department of Justice, the Federal Trade Commission, U.S. Customs and Border Protection, and such other departments and agencies as the Commission deems appropriate by posting of such notice on the Commission’s website. The Commission shall consider comments, limited to issues raised by the record, the initial determination, and the petitions for review, received from such agencies when deciding whether to initiate review or the scope of review. The Commission shall allow such agencies 10 days after the posting of such notice of an initial determination on the Commission’s website to submit their comments. * * * * * (h) * * * VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 (7) An initial determination filed pursuant to § 210.42(a)(3) shall become the determination of the Commission 30 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. * * * * * ■ 17. Amend § 210.43 by revising paragraphs (a)(1) and (d)(1) and (3) to read as follows: § 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 § 210.42(a)(1) or (c), § 210.50(d)(3), § 210.70(c), or § 210.75(b)(3) by filing a petition with the Secretary. A petition for review of an initial determination issued under § 210.42(a)(1) must be filed within 12 days after service of the initial determination. A petition for review of an initial determination issued under § 210.42(a)(3) must be filed within five (5) business days after service of the initial determination. A petition for review of an initial determination issued under § 210.42(c) that terminates the investigation in its entirety on summary determination, or an initial determination issued under § 210.50(d)(3), § 210.70(c), or § 210.75(b)(3), must be filed within 10 days after service of the initial determination. Petitions for review of all other initial determinations under § 210.42(c) must be filed within five (5) business days after service of the initial determination. A petition for review of an initial determination issued under § 210.50(d)(3) or § 210.70(c) must be filed within 10 days after service of the initial determination. (d) * * * (1) The Commission shall decide whether to grant, in whole or in part, a petition for review of an initial determination filed pursuant to § 210.42(a)(2) or § 210.42(c), which grants a motion for summary determination that would terminate the investigation in its entirety if it becomes the final determination of the Commission, § 210.50(d)(3), or § 210.70(c) within 45 days after the service of the initial determination on the parties, or by such other time as the Commission may order. The Commission shall decide whether to grant, in whole or in part, a petition for PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 review of an initial determination filed pursuant to § 210.42(a)(3) within 30 days after the service of the initial determination on the parties, or by such other time as the Commission may order. The Commission shall decide whether to grant, in whole or in part, a petition for review of an initial determination filed pursuant to § 210.42(c), except as noted above, within 30 days after the service of the initial determination on the parties, or by such other time as the Commission may order. * * * * * (3) The Commission shall grant a petition for review and order review of an initial determination or certain issues therein when at least one of the participating Commissioners votes for ordering review. In its notice, the Commission shall establish the scope of the review and the issues that will be considered and make provisions for filing of briefs and oral argument if deemed appropriate by the Commission. ■ 18. Amend § 210.47 by adding a sentence after the third sentence and revising the last sentence to read as follows: § 210.47 Petitions for reconsideration. * * * Any party desiring to oppose such a petition shall file an answer thereto within five days after service of the petition upon such party. The Commission on its own initiative may order reconsideration of a Commission determination or any action ordered to be taken thereunder. The filing of a petition for reconsideration shall not stay the effective date of the determination or action ordered to be taken thereunder or toll the running of any statutory time period affecting such determination or action ordered to be taken thereunder unless specifically so ordered by the Commission. ■ 19. Amend § 210.50 by: ■ a. Revising paragraph (a)(4) introductory text; ■ b. Redesignating paragraph (a)(4)(i) through (iv) as paragraphs (a)(4)(ii) through (v); and ■ c. Adding new paragraph (a)(4)(i). The revision and addition read as follows: § 210. 50 Commission action, the public interest, and bonding by respondents. * * * * * (a) * * * (4) Receive submissions from the parties, interested persons, and other Government agencies and departments with respect to the subject matter of paragraphs (a)(1) through (3) of this section. E:\FR\FM\08MYR2.SGM 08MYR2 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations (i) After a recommended determination on remedy is issued by the presiding administrative law judge, the parties may submit to the Commission, within 30 days from service of the recommended determination, information relating to the public interest, including any updates to the information supplied under §§ 210.8(b) and (c) and 210.14(f). Submissions by the parties in response to the recommended determination are limited to 5 pages, inclusive of attachments. This provision does not apply to the public. Dates for submissions from the public are announced in the Federal Register. * * * * * Subpart I—Enforcement Procedures and Advisory Opinions 20. Amend § 210.75 by: a. Removing paragraph (a); b. Redesignating paragraph (b) as paragraph (a) and: ■ i. Adding paragraphs (a)(1)(i) through (iv); ■ ii. Adding paragraph (a)(4)(iv); ■ iii. Revising newly redesignated paragraph (a)(5); and ■ c. Redesignating paragraph (c) as paragraph (b). The additions and revisions read as follows: ■ ■ ■ sradovich on DSK3GMQ082PROD with RULES2 § 210.75 Proceedings to enforce exclusion orders, cease and desist orders, consent orders, and other Commission orders. (a) * * * (1) * * * (i) The determination of whether to institute shall be made within 30 days after the complaint is filed, unless— (A) Exceptional circumstances preclude adherence to a 30-day deadline; (B) The filing party requests that the Commission postpone the determination on whether to institute an investigation; or (C) The filing party withdraws the complaint. (ii) If exceptional circumstances preclude Commission adherence to the 30-day deadline for determining whether to institute an investigation on the basis of the complaint, the determination will be made as soon after that deadline as possible. (iii) If the filing party desires to have the Commission postpone making a determination on whether to institute an investigation in response to the complaint, the filing party must file a written request with the Secretary. If the request is granted, the determination will be rescheduled for whatever date is appropriate in light of the facts. VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 (iv) The filing party may withdraw the complaint as a matter of right at any time before the Commission votes on whether to institute an enforcement proceeding. To effect such withdrawal, the filing party must file a written notice with the Commission. * * * * * (4) * * * (iv) Issue a new cease and desist order as necessary to prevent the unfair practices that were the basis for originally issuing the cease and desist order, consent order, and/or exclusion order subject to the enforcement proceeding. (5) Prior to effecting any issuance, modification, revocation, or exclusion under this section, the Commission shall consider the effect of such action upon the public health and welfare, competitive conditions in the U.S. economy, the production of like or directly competitive articles in the United States, and U.S. consumers. * * * * * ■ 21. Amend § 210.76 by: ■ a. Revising the section heading; ■ b. Revising paragraph (a)(1); ■ c. Adding paragraph (a)(3); and ■ d. Adding paragraphs (b)(1) through (5). The revisions and additions read as follows: § 210.76 Modification or rescission of exclusion orders, cease and desist orders, consent orders, and seizure and forfeiture orders. (a) Petitions for modification or rescission of exclusion orders, cease and desist orders, and consent orders. (1) Whenever any person believes that changed conditions of fact or law, or the public interest, require that an exclusion order, cease and desist order, or consent order be modified or set aside, in whole or in part, such person may request, pursuant to section 337(k)(1) of the Tariff Act of 1930, that the Commission make a determination that the conditions which led to the issuance of an exclusion order, cease and desist order, or consent order no longer exist. The Commission may also on its own initiative consider such action. The request shall state the changes desired and the changed circumstances or public interest warranting such action, shall include materials and argument in support thereof, and shall be served on all parties to the investigation in which the exclusion order, cease and desist order, or consent order was issued. Any person may file an opposition to the petition within 10 days of service of the petition. If the Commission makes such a determination, it shall notify the PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 21163 Secretary of the Treasury and U.S. Custom and Border Protection. * * * * * (3) If the petition requests modification or rescission of an order issued pursuant to section 337(d), (e), (f), (g), or (i) of the Tariff Act of 1930 on the basis of a licensing or other settlement agreement, the petition shall contain copies of the licensing or other settlement agreements, any supplemental agreements, any documents referenced in the petition or attached 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 § 201.6(a) of this chapter, a copy of the agreement with such information deleted shall accompany the motion. On motion for good cause shown, the administrative law judge or the Commission may limit the service of the agreements to the settling parties and the Commission investigative attorney. (b) * * * (1) The determination of whether to institute shall be made within 30 days after the petition is filed, unless— (i) Exceptional circumstances preclude adherence to a 30-day deadline; (ii) The petitioner requests that the Commission postpone the determination on whether to institute a modification or rescission proceeding; or (iii) The petitioner withdraws the petition. (2) If exceptional circumstances preclude Commission adherence to the 30-day deadline for determining whether to institute a modification or rescission proceeding on the basis of the petition, the determination will be made as soon after that deadline as possible. (3) If the petitioner desires to have the Commission postpone making a determination on whether to institute a modification or rescission proceeding in response to the petition, the petitioner must file a written request with the Secretary. If the request is granted, the determination will be rescheduled for a date that is appropriate in light of the facts. (4) The petitioner may withdraw the complaint as a matter of right at any time before the Commission votes on whether to institute a modification or rescission proceeding. To effect such withdrawal, the petitioner must file a written notice with the Commission. (5) The Commission shall institute a modification or rescission proceeding E:\FR\FM\08MYR2.SGM 08MYR2 21164 Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations by publication of a notice in the Federal Register. The notice will define the scope of the modification or rescission proceeding and may be amended by leave of the Commission. * * * * * § 210.77 [Removed and Reserved] 22. Remove and reserve § 210.77. ■ 23. Amend § 210.79 by revising paragraph (a) to read as follows: ■ § 210.79 Advisory opinions. sradovich on DSK3GMQ082PROD with RULES2 (a) Advisory opinions. Upon request of any person, the Commission may, upon such investigation as it deems necessary, issue an advisory opinion as to whether any person’s proposed course of action or conduct would violate a Commission exclusion order, cease and desist order, or consent order. Any responses to a request for an advisory opinion shall be filed within 10 days of service of the request. The Commission will consider whether the issuance of such an advisory opinion would facilitate the enforcement of section 337 of the Tariff Act of 1930, would be in the public interest, and would benefit consumers and VerDate Sep<11>2014 22:10 May 07, 2018 Jkt 244001 competitive conditions in the United States, and whether the person has a compelling business need for the advice and has framed his request as fully and accurately as possible. Advisory opinion proceedings are not subject to sections 554, 555, 556, 557, and 702 of title 5 of the United States Code. (1) The determination of whether to issue and advisory opinion shall be made within 30 days after the petition is filed, unless— (i) Exceptional circumstances preclude adherence to a 30-day deadline; (ii) The requester asks the Commission to postpone the determination on whether to institute an advisory proceeding; or (iii) The petitioner withdraws the request. (2) If exceptional circumstances preclude Commission adherence to the 30-day deadline for determining whether to institute an advisory proceeding on the basis of the request, the determination will be made as soon after that deadline as possible. (3) If the requester desires that the Commission postpone making a PO 00000 Frm 00026 Fmt 4701 Sfmt 9990 determination on whether to institute an advisory proceeding in response to its request, the requester must file a written request with the Secretary. If the request is granted, the determination will be rescheduled for whatever date is appropriate in light of the facts. (4) The requester may withdraw the request as a matter of right at any time before the Commission votes on whether to institute an advisory proceeding. To effect such withdrawal, the requester must file a written notice with the Commission. (5) The Commission shall institute an advisory proceeding by publication of a notice in the Federal Register. The notice will define the scope of the advisory opinion and may be amended by leave of the Commission. * * * * * By order of the Commission. Issued: April 26, 2018. Lisa Barton, Secretary to the Commission. [FR Doc. 2018–09268 Filed 5–3–18; 4:15 pm] BILLING CODE 7020–02–P E:\FR\FM\08MYR2.SGM 08MYR2

Agencies

[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Rules and Regulations]
[Pages 21140-21164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09268]



[[Page 21139]]

Vol. 83

Tuesday,

No. 89

May 8, 2018

Part VI





International Trade Commission





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19 CFR Parts 201 and 210





Rules of General Application, Adjudication and Enforcement; Final Rule

Federal Register / Vol. 83 , No. 89 / Tuesday, May 8, 2018 / Rules 
and Regulations

[[Page 21140]]


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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: 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. The intended effect of the proposed amendments is 
to facilitate compliance with the Commission's Rules and improve the 
administration of agency proceedings.

DATES: Effective June 7, 2018. The rule amendments as stated herein 
shall apply to investigations instituted subsequent to the 
aforementioned date.

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the 
General Counsel, United States International Trade Commission, 
telephone 202-708-2301. 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 http://www.usitc.gov.

SUPPLEMENTARY INFORMATION:

Background

    This rulemaking is an effort to improve provisions of the 
Commission's existing Rules of Practice and Procedure. The Commission 
proposed amendments to its rules covering investigations under section 
337 of the Tariff Act of 1930 (19 U.S.C. 1337), as amended (``section 
337''), in order to increase the efficiency of its section 337 
investigations and reduce the burdens and costs on the parties and the 
agency.
    The Commission published a notice of proposed rulemaking (``NPRM'') 
in the Federal Register at 80 FR 57553-64 (Sept. 24, 2015), proposing 
to amend the Commission's Rules of Practice and Procedure concerning 
rules of general application, adjudication, and enforcement 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. Consistent with its 
ordinary practice, the Commission invited the public to comment on all 
the proposed rules amendments. This practice entails the following 
steps: (1) Publication of an NPRM; (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.
    The NPRM requested public comment on the proposed rules within 60 
days of publication of the NPRM, i.e., by November 23, 2015. The 
Commission received six sets of comments from organizations or law 
firms, including one each from the China Chamber of Commerce for Import 
and Export of Machinery and Electronic Products (``CCCME''); the ITC 
Trial Lawyers Association (``ITCTLA''); the Intellectual Property 
Owners Association (``IPOA''); the ITC Working Group (``ITCWG''); the 
Law Office of T. Spence Chubb (``Mr. Chubb''); and the law firm of 
Adduci, Mastriani, & Schaumberg LLP (``Adduci''). The ITCWG consists of 
industry participants, including Apple, Avaya, Broadcom, Cisco, Google, 
Hewlett Packard, Intel, and Oracle among others.
    The Commission has 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 of the 
commentators in preparing their submissions.

Regulatory Analysis of Amendments to the Commission's Rules

    The Commission has determined that these rules do not meet the 
criteria described in section 3(f) of Executive Order 12866 (58 FR 
51735, October 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 proposed rulemaking is required under 5 U.S.C. 553(b) or any 
other statute. Although the Commission chose to publish a notice of 
proposed rulemaking, these regulations are ``agency rules of procedure 
and practice,'' and thus are exempt from the notice requirement imposed 
by 5 U.S.C. 553(b). Moreover, these regulatory amendments are certified 
as not having a significant economic impact on a substantial number of 
small entities.
    These rules do not contain federalism implications warranting the 
preparation of a federalism summary impact statement pursuant to 
Executive Order 13132 (64 FR 43255, August 10, 1999).
    No actions are necessary under title II of the Unfunded Mandates 
Reform Act of 1995, Public Law 104-4 (2 U.S.C. 1531-1538) because the 
rules will not result in the expenditure by state, local, and tribal 
governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year (adjusted annually for inflation), 
and will not significantly or uniquely affect small governments.
    These rules are not ``major rules'' as defined by section 251 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 that Act because they contain rules of agency 
organization, procedure, or practice that do not substantially affect 
the rights or obligations of non-agency parties.
    These rules do not contain any information collection requirements 
subject to the provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.).

Overview of the Amendments to the Regulations

    The final regulations contain eleven (11) changes from the 
proposals in the NPRM. These changes are summarized here.
    First, with regard to rule 201.16(f), relating to electronic 
service by parties, the Commission has determined that the rule should 
clarify that the administrative law judge may indicate by order what 
means are acceptable to ensure the document to be served is securely 
stored and transmitted by the serving party in a manner that prevents 
unauthorized access and/or receipt by individuals or organizations not 
authorized to view the specified confidential business information.
    Second, the Commission has determined to amend proposed rule 
210.10(a)(6) to remove the stated criteria by which the Commission may 
determine to institute multiple investigations from a single complaint 
and substitute the single consideration of efficient adjudication.
    Third, the Commission has determined to amend proposed rule 
210.10(b)(1) to clarify that the notice of investigation will define 
the scope of the investigation in plain language so as to make explicit 
what accused products or category of accused products will be the 
subject of the investigation in accordance with rule 210.12(a)(12), 
which governs the contents of the complaint.

[[Page 21141]]

    Fourth, the Commission has determined to amend proposed rule 
210.10(b)(3) to clarify that an initial determination ruling on a 
potentially dispositive issue in a 100-day proceeding is due within 100 
days of institution of an investigation so designated. The rule is also 
amended to clarify that the presiding administrative law judge is 
authorized, in accordance with section 210.36, to hold expedited 
hearings on any such designated issue and will also have discretion to 
stay discovery of any remaining issues during the pendency of the 100-
day proceeding.
    Fifth, the Commission has determined to amend proposed rule 
210.14(h) to clarify that an administrative law judge may determine to 
sever an investigation into two or more investigations at any time 
prior to or upon thirty days from institution of the investigation. The 
rule will also clarify that severance may be based upon a motion from 
any party. The administrative law judge's decision to sever will be in 
the form of an order. The newly severed investigation(s) shall remain 
with the same presiding administrative law judge unless the severed 
investigation is reassigned at the discretion of the chief 
administrative law judge. The new severed investigation(s) will be 
designated with a new investigation number. The final rule also removes 
limiting criteria for an administrative law judge to sever an 
investigation beyond the consideration of efficient adjudication.
    Sixth, with regard to proposed rule 210.14(i), the Commission has 
determined that administrative law judges will not be able to designate 
potentially dispositive issues for inclusion in a 100-day proceeding 
following institution of an investigation. Therefore, proposed rule 
210.14(i) will not appear in the final rules.
    Seventh, the Commission has determined to amend proposed rule 
210.15 to clarify that the rule is intended to prohibit the filing of 
any motions before the Commission during preinstitution proceedings 
except with respect to motions for temporary relief filed under rule 
210.53.
    Eighth, regarding proposed rule 210.22, the Commission has 
determined that administrative law judges will not be able to designate 
potentially dispositive issues for inclusion in a 100-day proceeding 
following institution of an investigation. Therefore, proposed rule 
210.22, which allows parties for file a request for such designation by 
motion, will not appear in the final rules.
    Ninth, regarding proposed rule 210.32(d)(1), the Commission has 
determined to amend the proposed rule to clarify that a party may serve 
subpoena objections within the later of 10 days after receipt of the 
subpoena or within such time as the administrative law judge may allow. 
In addition, the proposed rule is amended to clarify that, if an 
objection is made, the party that requested the subpoena may move for a 
request for judicial enforcement upon reasonable notice to other 
parties or as otherwise provided by the administrative law judge who 
issued the subpoena. Similarly, the Commission has determined to amend 
proposed rule 210.32(d)(2) to clarify that a party may file a motion to 
quash a subpoena within the later of 10 days after receipt of the 
subpoena or within such time as the administrative law judge may allow.
    Tenth, regarding proposed rule 210.42(a)(3), because the Commission 
has determined not to implement proposed rule 210.14(i) allowing 
administrative law judges to designate potentially dispositive issues, 
the Commission has determined to remove all references to proposed rule 
210.14(i) in the final version of rule. In addition, because the 
administrative law judges may sever investigations by order, the 
Commission has determined not to adopt proposed rule 210.42(c)(3). The 
Commission has also determined to add rule 210.42(h)(7) to specify that 
an initial determination issued pursuant to proposed rule 210.42(a)(3) 
will become the Commission's final determination 30 days after 
issuance, absent review.
    Eleventh, regarding the proposed amendments to rule 210.43, the 
Commission has determined to amend proposed rule 210.43(a)(1) to 
clarify that petitions for review of an initial determination ruling on 
a potentially dispositive issue must be filed within five business days 
after service of the initial determination. The Commission has also 
determined to amend proposed rule 210.43(c) to clarify that the time 
for filing responses to petitions for review is five business days.
    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 modifications suggested by the 
commentators. As a result of some of the comments, the Commission has 
determined to modify several of the proposed amendments, including 
deleting certain sections in the final rule as summarized above. The 
section-by-section analysis will refer to the rules as they appeared in 
the NPRM.

Section-by-Section Analysis

19 CFR Part 201

Subpart B--Initiation and Conduct of Investigations
Section 201.16
    Section 201.16 provides the general provisions for service of 
process and other documents. Section 201.16(a)(1) through (3) address 
allowed methods of service by the Commission and Sec.  201.16(a)(4) 
addresses when such service is complete. In consideration of the 
Commission's development of the capability to perfect electronic 
service, the NPRM proposed amending Sec.  201.16(a)(1) and (4) to 
provide that the Commission may effect service through electronic 
means. Under the proposed rule, electronic service would be complete 
upon transmission of a notification from the Commission that the 
document has been placed in an appropriate secure repository for 
retrieval by the person, organization representative, or attorney being 
served, unless the Commission is notified that the notification was not 
received by the party served.
    In addition, Sec.  201.16(f) authorizes parties to serve documents 
by electronic means. The NPRM proposed amending Sec.  201.16(f) to 
require parties serving documents by electronic means to ensure that 
any such document containing confidential business information subject 
to an administrative protective order be securely transmitted, in 
addition to being securely stored, to prevent unauthorized access and/
or receipt by individuals or organizations not authorized to view the 
specified confidential business information. All documents must 
currently be filed electronically by way of the Commission's Electronic 
Document Information System pursuant to Sec.  201.8(d).
201.16(a)(1) and (4)
Comments
    Adduci generally supports the Commission's efforts to effect 
electronic service. Adduci cautions, however, that allowing electronic 
service of process or documents on unrepresented parties may lead to 
notification issues, particularly with respect to service of complaints 
on named respondents, and result in due process challenges. Adduci 
proposes accordingly that the Commission delay electronic service until 
after the entity being served is represented by an attorney. 
Specifically, Adduci proposes the following language for Sec.  
201.16(a)(1):


[[Page 21142]]


    By mailing or delivering a copy of the document to the person to 
be served, to a member of the partnership to be served, to the 
president, secretary, other executive 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 before the Commission, by mailing, delivering, or serving by 
electronic means a copy to such attorney. . . .

    The CCCME expresses concern with the statement in the proposed 
amendments to Sec.  201.16(a)(4) that electronic service by the 
Commission is completed upon transmission of a notification from the 
Commission that the service document has been placed in an appropriate 
secure repository for retrieval by the appropriate party being served. 
The CCCME requests that Sec.  201.16(a)(4) be worded to state 
explicitly that electronic service shall be made to the destination 
designated by the person, organization, representative or attorney 
being served rather than being placed in an unspecified repository for 
retrieval.
Commission Response
    The Commission considers Adduci's concerns to be adequately 
addressed by the proposed amendment of Sec.  201.16(a)(1) as stated in 
the NPRM. The proposed rule indicates that service is to be by mailing, 
delivery, or electronic service as appropriate. If the Commission is 
unable to effect electronic service because it lacks a viable email 
address or other electronic contact information for the intended 
recipient, then service would be by mailing or delivery. Before an 
investigation is instituted, the Commission typically does not have 
electronic contact information for proposed respondents or their 
representatives. Moreover, proposed respondents usually retain counsel 
before filing answers to the complaint and providing relevant contact 
information. As such, electronic service on a party before it retains 
counsel would be rare. If a party is in default, and thus never 
provides electronic contact information, the Commission would be unable 
to effect electronic service on that party.
    Regarding the CCCME's comments concerning proposed rule 
201.16(a)(4), the language requiring that any electronically served 
documents be placed in an appropriate repository for retrieval is 
purposely broad to encompass any secure service option, such as two-
factor identification for a drop box. In order to avoid confusion and 
being overwhelmed with individual requests, the Commission declines to 
accommodate private party requests for specific service destinations 
unique to that party.
201.16(f)
Comments
    The ITCTLA generally supports the proposed amendments to Sec.  
201.16, but expresses concern regarding the clarity of the proposed 
amendment to Sec.  201.16(f). Specifically, the ITCTLA questions the 
vagueness of the requirement that service documents ``be securely 
stored and transmitted by the serving party in a manner that prevents 
unauthorized access and/or receipt by individuals or organizations not 
authorized to view the specified confidential business information.'' 
The ITCTLA notes that the administrative protective order and 
stipulations between the parties often describe the manner in which to 
secure and transmit electronic service of documents, and that 
administrative law judges and parties can continue to designate the 
manner of such transmission. The ITCTLA does, however, state that it 
``expects that the proposed language though vague provides sufficient 
flexibility for the parties and administrative law judges to delineate 
what it means to `be securely stored and transmitted.' ''
    The IPOA expresses similar concerns that the proposed language of 
Sec.  201.16(f) lacks detail sufficient to inform parties how to comply 
with the requirement that service documents be securely stored and 
transmitted. The IPOA suggests that the proposed rule could be improved 
by clarifying whether stipulations among the parties describing a 
manner of service satisfactory to all parties will satisfy the 
requirements of proposed rule 201.16(f).
    The ITCWG generally supports the proposed amendments to Sec.  
201.16, but expresses concern that the provision in Sec.  201.16(f) 
stating that parties ``may serve documents by electronic means in all 
matters before the Commission'' could be construed to improperly 
include service of third-party subpoenas. The ITCWG asserts that 
service of third-party subpoenas should continue to adhere to current 
Commission practice to better ensure actual notification to the 
subpoenaed party in a timely manner.
    The CCCME also expresses concern regarding the meaning of 
``securely transmitted'' in proposed rule 201.16(f).
    Mr. Chubb questions the need for the additional language in 
proposed rule 201.16(f) requiring secure transmission and storage when 
parties are effecting electronic service of confidential documents. Mr. 
Chubb notes that Sec.  201.16(f) has permitted parties to serve 
documents, including confidential documents, electronically since 2002 
apparently without significant problems. Mr. Chubb suggests the 
Commission identify the problem with the current rule and address the 
details by which it expects parties to comply with the new procedures, 
as well as any additional burdens the new procedures will place on 
parties beyond those currently experienced. Mr. Chubb further suggests 
that, in the alternative, the Commission forgo any change to Sec.  
201.16(f) in favor of current practice.
Commission Response
    Regarding the ITCTLA's and IPOA's concerns about the vagueness of 
the language in proposed rule 201.16(f), the ITCTLA is correct that the 
language is intended to encompass future improvements in technology. 
However, the Commission agrees that the proposed rule would benefit by 
specifying that the administrative law judge may indicate by order what 
means are acceptable. Regarding the ability of parties to stipulate as 
to the means of secure transmission or storage, any such stipulation 
would require approval by the administrative law judge, as the parties 
may suggest means that are not sufficiently secure. Furthermore, as to 
the CCCME's comment, the requirement that documents be ``securely 
transmitted'' is intended to require parties to ensure transmitted 
documents are properly encrypted or otherwise formatted to prevent 
unauthorized access. The Commission does not consider further 
clarification necessary. Parties are reminded that, if they fail to 
properly safeguard confidential business information or business 
proprietary information, they may be subjected to investigations 
concerning the disclosure of any such information and that sanctions 
may be imposed for a breach of the administrative protective order.
    Concerning the ITCWG's comments, the Commission agrees that service 
of third-party subpoenas may not be effected by electronic means. 
Service of third-party subpoenas may only be effected by mail or 
delivery.
    Lastly, regarding Mr. Chubb's comments, the proposed amendments are 
intended to capture the realities of continuing improvements in 
processes and technology for transmitting information. The Commission 
is making efforts to continually safeguard confidential business 
information and business proprietary information, and the rules should 
reflect this intent while ensuring that parties using new technology 
are cognizant of the

[[Page 21143]]

Commission's concerns regarding the safekeeping of confidential 
information. Participants in Commission proceedings are reminded of 
their obligations to comply with Administrative Protective Orders 
(APOs) and that breaches of APOs are subject to serious sanctions. See 
19 CFR 210.34; 82 FR 29322 (June 28, 2017).

19 CFR Part 210

Subpart C--Adjudication and Enforcement
Section 210.10
    Section 337(b)(1) states that the ``Commission shall investigate 
any alleged violation of this section on complaint under oath or upon 
its initiative.'' 19 U.S.C. 1337(b)(1). Accordingly, Sec.  210.10 
provides for institution of section 337 investigations by the 
Commission based upon a properly filed complaint. See 19 CFR 210.10(a). 
The NPRM proposed adding Sec.  210.10(a)(6) to clarify that the 
Commission may institute multiple investigations based on a single 
complaint where necessary to limit the number of technologies and/or 
unrelated patents asserted in a single investigation.
    In addition, Sec.  210.10(b) provides that, when instituting an 
investigation, the Commission shall issue a notice defining the scope 
of the investigation, including whether the Commission has ordered the 
presiding administrative law judge to take evidence and to issue a 
recommended determination concerning the public interest. The NPRM 
proposed adding Sec.  210.10(b)(1) to provide that the notice of 
investigation will specify in plain language the accused products that 
will be within the scope of the investigation in order to avoid 
disputes between the parties concerning the scope of the investigation. 
New Sec.  210.10(b)(2) contains the existing language in Sec.  
210.10(b), which provides that the Commission may order the presiding 
administrative law judge to take evidence concerning the public 
interest.
    The Commission has established a ``100-day'' proceeding to provide 
for the disposition of potentially dispositive issues within a 
specified time frame following institution of an investigation. The 
NPRM proposed adding Sec.  210.10(b)(3) to authorize the Commission to 
direct the presiding administrative law judge to issue an initial 
determination pursuant to new Sec.  210.42(a)(3), as described below, 
on a potentially dispositive issue as set forth in the notice of 
investigation. The specified time frame for issuance of the initial 
determination is subject to an extension of time for good cause shown. 
As set forth in the pilot program, the presiding administrative law 
judge will have discretion to stay discovery of all other issues during 
the pendency of the 100-day proceeding.
    The Commission notes that the 100-day proceeding differs from a 
summary determination in that the administrative law judge's ruling 
pursuant to this section is made following an evidentiary hearing. 
These changes are intended to provide a procedure for the early 
disposition of potentially dispositive issues identified by the 
Commission at institution of an investigation. This procedure is not 
intended to affect summary determination practice under section 210.18 
whereby the administrative law judge may dispose of one or more issues 
in the investigation when there is no genuine issue as to material 
facts and the moving party is entitled to summary determination as a 
matter of law.
Section 210.10(a)(6)
Comments
    ITCTLA supports the Commission's ability to institute multiple 
investigations based on a single complaint where necessary to limit the 
number of unrelated technologies and/or unrelated patents asserted in a 
single investigation. ITCTLA notes, however, that where the same 
parties, same or similar accused products, same or similar domestic 
industry products, or same or similar defenses are presented or 
implicated by a single complaint, the scope of discovery, relevant 
issues and administration of the case may so overlap that instituting 
multiple investigations may lead to increased costs on the parties and 
use of Commission resources, or create inconsistencies or conflict 
between investigations, even notwithstanding technically different 
asserted patent families. The ITCTLA further notes that the 
circumstance is rare where a single complaint presents such different 
technologies and issues that institution of multiple investigations or 
severance of an investigation is in the best interest of the timely and 
efficient investigation of the complaint. ITCTLA proposed the following 
amended language for Sec.  210.10(a)(6):
    The Commission may determine to institute multiple investigations 
based on a single complaint where necessary to allow efficient 
adjudication and limit the number of unrelated technologies and 
products and/or unrelated patents asserted in a single investigation.
    The IPOA comments that the proposed amendments addressing the 
Commission's ability to institute multiple investigations from a single 
complaint are unnecessary given the existing, inherent power of 
administrative law judges to manage their dockets and limit the issues 
to be decided. The IPOA cautions that this power, including for 
example, requiring parties to present their cases within an allotted 
time, limiting the number of pages for witness statements, and limiting 
the amount of time allowed for live direct testimony, could be 
compromised by a requirement to split any complaint that fails to 
satisfy certain, currently unarticulated criteria. The IPOA does, 
however, propose that clear, enumerated factors governing multiple 
institutions should be indicated in the rule in order to provide notice 
to potential parties. The IPOA also suggests that the rules clarify 
whether a decision to institute multiple investigations can be 
appealed.
    The CCCME suggests that the rules be amended to allow respondents 
to submit a request for severance of an investigation and to object 
when the Commission determines to sever an investigation. The CCCME 
also proposes that the Commission provide detailed requirements for 
severing investigations (or instituting multiple investigations from a 
single complaint) to avoid abuse of the provision.
    Adduci expresses some skepticism about the need for proposed rule 
210.10(a)(6), noting that administrative law judges are already adept 
at handling multiple-technology, multi-patent investigations and that 
issues are typically streamlined by the time the evidentiary hearing is 
held though discovery and other mechanisms, such as Markman 
proceedings. Adduci, however, recommends that the Commission provide 
the criteria it will consider in evaluating whether to institute 
multiple investigations based on a single complaint, noting that 
without such guidance, complainants will face difficulty in determining 
which technologies and patents to assert in a complaint.
    Adduci also notes that the proposed amendment provides no procedure 
to allow a complainant to avoid institution of multiple investigations 
under the proposed rule. Adduci contends this failure is potentially 
problematic as a complainant may not have the resources to litigate 
simultaneous investigations or may prefer to focus its efforts on a 
single investigation. Adduci notes that, even if a complainant were to 
withdraw and/or modify its complaint, there is no procedure through 
which it may learn what changes are necessary to avoid institution of 
simultaneous

[[Page 21144]]

investigations. Adduci therefore proposes including a provision through 
which the Commission would notify the complainant of the specific bases 
that, unless modified, may result in institution of multiple 
investigations. Adduci further recommends modifying the proposed rule 
to provide the complainant an opportunity, prior to institution, to 
either withdraw and refile its complaint or to modify its complaint to 
avoid institution of multiple investigations. Adduci recommends that 
the Commission provide two weeks' notice to a complainant that it 
intends to institute multiple investigations and identify how the 
patents and/or technologies would be split. Adduci recommends that the 
Office of Unfair Import Investigations could then be consulted and 
could advise the complainant on how to best modify its complaint to 
avoid institution of multiple investigations.
    Mr. Chubb generally supports the Commission having the authority to 
institute multiple investigations based on a single complaint. He also 
suggests the Commission consider whether Sec.  210.10(a) should 
additionally be amended to authorize the Commission to institute 
consolidated investigations. Mr. Chubb notes that existing Sec.  
210.10(g) provides for post-institution consolidation, but that the 
rules do not provide for pre-institution consolidation. Mr. Chubb 
asserts that, as with situations involving the institution of multiple 
investigations from a single complaint, pre-institution consolidation 
would likely be rare. Mr. Chubb notes, however, that the Commission has 
experienced situations where there have been two pending complaints by 
a single complainant, and situations where there were two pending 
complaints by cross-parties. Mr. Chubb also notes that there have been 
newly filed complaints for which consolidation with an already 
instituted investigation would be appropriate. Mr. Chubb requests that 
if his proposed consolidation scheme cannot be considered in this 
rulemaking that his suggestions be considered for future rulemaking 
efforts.
Commission Response
    Several commentators question the necessity of the proposed 
amendment to rule 210.10(a)(6), arguing that even where cases are 
complex, overlapping issues may require a single investigation. Several 
of the commentators further assert that the administrative law judges 
already have the ability to handle complex investigations without the 
need for the Commission preemptively determining to institute multiple 
investigations from a single complaint. Assuming the Commission decides 
to adopt this provision, the commentators are nearly unanimous in 
stating that the proposed rule should state the criteria by which the 
Commission will determine to institute multiple investigations pursuant 
to the proposed rule.
    Only the ITCTLA proposed any language suggesting any such criteria, 
i.e., that the Commission will institute multiple investigations 
``where necessary to allow efficient adjudication and limit the number 
of unrelated technologies and products and/or unrelated patents in a 
single investigation.'' Other commentators appear to prefer more 
precise enumerated criteria, rather than the more open-ended 
formulation the ITCTLA suggests.
    The Commission has determined to implement rule 210.10(a)(6) with 
the clarification that the Commission may determine to institute 
multiple investigations based on a single complaint for efficient 
adjudication. The Commission considers that providing specific criteria 
for applying the rule would be unduly restrictive and hamper the 
Commission's flexibility with respect to managing investigations. The 
Commission, however, notes that instituting multiple investigations 
based on a single complaint would likely occur where the complaint 
alleges a significant number of unrelated technologies, diverse 
products, unrelated patents, and/or unfair methods of competition or 
unfair acts such that the resulting investigation, if implemented as 
one case, may be unduly unwieldy or lengthy.
    Several commentators also suggest that the Commission provide 
complainant(s) with notice when the Commission intends to institute 
multiple investigations and to allow complainant(s) to withdraw and 
refile a modified complaint to avoid multiple investigations. Requiring 
such notice, however, would hinder the Commission's ability to 
institute investigations within 30 days as stated in rule 210.10(a)(1). 
Furthermore, rule 210.14(g) allows the Commission to consolidate 
investigations, providing a procedural mechanism to reunify 
investigations instituted based on a single complaint under appropriate 
circumstances.
    The Commission expects, however, that the Office of Unfair Import 
Investigations (``OUII'') will raise the issue of possible multiple 
investigations with complainants as part of the pre-institution draft 
complaint review process when these concerns are apparent from the 
draft complaint. OUII may also suggest modification of the draft 
complaint during any pre-filing communications to avoid the institution 
of multiple investigations. While the Commission anticipates the issue 
may arise during the pre-institution complaint review process, the 
Commission will independently determine sua sponte whether multiple 
investigations are appropriate.
    IPOA requests that the proposed rule be clarified to indicate 
whether parties can appeal or object to the Commission's decision to 
institute multiple investigations based on a single complaint. Assuming 
IPOA believes that the decision should be appealable to the U.S. Court 
of Appeals for the Federal Circuit (``Federal Circuit''), under section 
337(c), the Commission notes that any decision to institute multiple 
investigations based on a single complaint is not a final determination 
on violation, making immediate appeal to the Federal Circuit 
unavailable. If the complainant objects to the Commission's decision to 
institute multiple investigations, there are procedural mechanisms 
available to the complainant, such as a motion to terminate one or more 
of the multiple investigations or claims.
    Concerning Mr. Chubb's comment that the Commission should allow 
pre-institution consolidation of investigations, consideration of such 
a rule is best tabled until the Commission undertakes a future 
rulemaking effort.
Section 210.10(b)(1)
Comments
    ITCTLA generally supports the Commission's effort to provide notice 
and avoid disputes regarding the scope of the investigation. ITCTLA, 
however, cautions that the language of the proposed rule, i.e. ``such 
plain language as to make explicit what accused products will be 
subject of the investigation,'' is unclear. Specifically, ITCTLA 
asserts that it is unclear whether the phrase ``plain language'' 
relates to the requirement in current Sec.  210.12(a)(12) of a ``clear 
statement in plain English of the category of products accused . . . 
such as mobile devices, tablets, or computers,'' or ``explicit . . . 
accused products'' refers more specifically to, for example, specific 
model names or numbers. ITCTLA proposes the following amended language 
for Sec.  210.10(b)(1) to address the potential confusion:

    An investigation shall be instituted by the publication of a 
notice in the Federal Register. The notice will define the scope of 
the investigation in such plain language as to

[[Page 21145]]

make explicit what accused products or category of accused products 
provided in accordance with Sec.  210.12(a)(12) will be the subject 
of the investigation, and may be amended as provided in Sec.  
210.14(b) and (c).

    The IPOA supports proposed rule 210.10(b)(1) to the extent it 
narrows the variety of products potentially falling within the caption 
of an investigation to more readily identifiable categories of 
products, including downstream products. The IPOA, however, questions 
the meaning of the phrase ``such plain language as to make explicit 
what accused products will be the subject of the investigation.'' 
Similar to the ITCTLA, the IPOA suggests replacing this phrase in 
proposed rule 210.10(b)(1) with language borrowed from Sec.  
210.12(a)(12) concerning the requirement that a complaint ``contain a 
clear statement in plain English of the category of product accused'' 
to avoid potential inconsistencies.
    The IPOA specifically notes that it does not support interpreting 
the ``plain language'' phrase as requiring model numbers, which it 
asserts would be inconsistent with the scope of relief afforded under 
the trade laws and with longstanding Commission practice. The IPOA also 
suggests that to the extent the proposed rule is intended to narrow the 
scope of the notice of investigation in order to narrow discovery, 
administrative law judges should be permitted to extend discovery 
beyond the scope of the notice of investigation for good cause shown. 
Accordingly, the IPOA suggests the following amendments to the proposed 
rule:

    An investigation shall be instituted by the publication of a 
notice in the Federal Register. The notice will define the scope of 
the investigation in such plain language, consistent with the 
requirement to provide in the Complaint a clear statement in plain 
English of the category of products accused pursuant to 19 CFR 
210.12(a)(12), as to make explicit what one or more accused 
categories of products will be the subject of the investigation, and 
may be amended as provided in 210.14(b) and (c). Discovery beyond 
the scope of the investigation will be by leave of the 
administrative law judge for good cause shown.

    The ITCWG supports the proposed rule of Sec.  210.10(b)(1) 
concerning specifying the scope of the investigation in plain language, 
noting that currently, complainants often seek improper discovery on 
product types that have not been formally accused. The ITCWG suggests, 
however, that the Commission may wish to consider modifying the 
proposed language to provide that the ``type of accused products'' be 
specified in the notice and, in particular, requiring that when 
software is accused, the notice of investigation should enumerate the 
specific software at issue (e.g., Marshmallow) rather than merely 
defining the investigation in terms of devices (e.g., smartphones).
    The CCCME proposes that the description of the scope of an 
investigation includes the product code of the named respondents' 
alleged infringing product to avoid ambiguity.
    Adduci recommends amending the proposed rule to clarify that the 
Federal Register notice should identify the categories of accused 
products rather than specific accused products. Adduci asserts that its 
proposed amendment would bring proposed rule 210.10(b)(1) in line with 
existing rule 210.12(a)(12), which requires that a complaint 
``[c]ontain a clear statement in plain English of the category of 
products accused.'' See 19 CFR 210.1012(a)(12). Adduci suggests, in 
order to avoid inconsistencies between the complaint and the Federal 
Register notice of institution, that the notice use the same plain 
language as used in the complaint to define the categories of accused 
products. Adduci suggests the following amendments to proposed rule 
210.10(b)(1):

    An investigation shall be instituted by the publication of a 
notice in the Federal Register. The notice will define the scope of 
the investigation in such plain language as to make explicit what 
categories of accused products will be the subject of the 
investigation, and may be amended as provided in Sec.  210.14(b) and 
(c).

    Mr. Chubb discourages implementation of proposed rule 210.10(b)(1), 
asserting that the rule change would merely add a layer of regulatory 
complexity to what he calls a straightforward and routine process. Mr. 
Chubb contends that imposing a formulaic plain language requirement 
will not prevent disputes from arising as to what the scope of an 
investigation might be or the burden on the administrative law judge to 
resolve such disputes. Mr. Chubb cautions that the proposed rule is 
likely to create confusion by raising questions as to whether the 
language of the complaint itself continues to play a role in such 
determinations, especially in view of existing rule 210.12(a)(12), 
which requires a complainant to describe the accused products in the 
complaint with ``a clear statement in plain English of the category of 
products accused.'' See 19 CFR 210.12(a)(12). Mr. Chubb asserts that 
nothing in the current rules constrains the Commission's ability to 
describe the accused products in whatever language it determines is the 
most appropriate, including ``plain language'' that makes explicit what 
the accused products are.
Commission Response
    The majority of the commentators support adding the requirement to 
rule 210.10(b)(1) that the notice of investigation specify the scope of 
the investigation in plain language. Moreover, most of the commentators 
suggest that the proposed rule align with the current requirements in 
rule 210.12(a)(12), which requires the complaint to ``[c]ontain a clear 
statement in plain English of the category of products accused.'' 19 
CFR 210.12(a)(12). In order to align the scope of the investigation 
stated in the notice of investigation with the statement concerning the 
scope as stated in the complaint, the Commission has determined to 
amend proposed rule 210.10(b)(1) to explicitly specify the correlation 
between that rule and 210.12(a)(12).
    The Commission rejects IPOA's suggestion that discovery ``beyond 
the scope of the investigation be permitted for good cause'' as it is 
not clear what IPOA means by ``beyond the scope of the investigation.''
    The Commission has considered ITCWG's suggestion to require that 
the notice of investigation indicate specific types of software, and 
the CCCME's suggestion that the notice indicate specific product codes. 
Requiring the notice of investigation to indicate accused products by 
specific names or model numbers does not comport with Commission 
practice. In particular, the Commission has long held that its remedies 
apply to any infringing product, not simply the products specifically 
adjudicated during an investigation. See, e.g., Certain Ground Fault 
Circuit Interrupters and Products Containing the Same, Inv. No. 337-TA-
615, Comm'n Op. (Pub. Version) at 27 (Mar. 26, 2009), rev'd on other 
grounds, General Protecht Group, Inc. v. Int'l Trade Comm'n, 619 F.3d 
1303 (Fed. Cir. 2010). Identifying accused products with such 
specificity invites the risk of unduly restricting the scope, not only 
of an investigation, but also of any potential remedy the Commission 
may issue at the conclusion of that investigation.
210.10(b)(3)
Comments
    The IPOA indicates that it generally supports the proposed rule 
changes involving the 100-day proceeding and that it does not support 
limiting by example the types of issues that may be designated as 
potentially dispositive.

[[Page 21146]]

With respect to the statement in the NPRM concerning proposed Sec.  
210.10(b)(3) which provides that administrative law judges will have 
discretion to stay discovery during the pendency of a 100-day 
proceeding, the IPOA asserts that it is critical that the rules provide 
for a mandatory stay during the pendency of the proceeding and during 
any subsequent Commission review. Otherwise, the IPOA cautions, a party 
subject to a 100-day proceeding faces both a fast-track discovery/
hearing on the potentially dispositive issue as well as the normal 
requirements of Commission discovery on other issues. The IPOA suggests 
the following amended language for proposed Sec.  210.10(b)(3):

    The Commission may order the administrative law judge to issue 
an initial determination as provided in Sec.  210.42(a)(3)(i) and 
(ii) ruling on a potentially dispositive issue as set forth in the 
notice of investigation. The presiding administrative law judge is 
authorized, in accordance with section 210.36, to hold expedited 
hearings on any such designated issue and will also have discretion 
to stay discovery during the pendency of the 100-day proceeding.

The Commission notes that, although the IPOA argues for a mandatory 
stay of the remainder of the investigation, the language it proposes 
leaves the decision to stay within the administrative law judge's 
discretion.
    The ITCWG generally supports implementation of the 100-day 
proceeding in the rules and urges that the procedure be used in a 
greater number of cases. The ITCWG does not provide any specific 
comments concerning the proposed language of Sec.  210.10(b)(3). The 
ITCWG does, however, note that the proposed rules do not require a stay 
of discovery on non-designated issues during pendency of a 100-day 
proceeding or during Commission review of the administrative law 
judge's initial determination on the designated issue. Although the 
ITCWG acknowledges the comment in the NPRM that the administrative law 
judge has discretion to stay discovery during the pendency of a 100-day 
proceeding and subsequent Commission review, the ITCWG contends that 
any final rule should provide for a mandatory stay. The ITCWG cautions 
that otherwise, a party subject to a 100-day proceeding faces both 
fast-track discovery and a hearing on the 100-day issue, as well as the 
task of conducting normal discovery on the remaining issues, thus 
increasing the burden and expense of the investigation.
    The ITCTLA cautions that many of the provisions associated with the 
proposed 100-day proceeding present significant problems and invite 
abuse. The ITCTLA asserts that administrative law judges already have 
sufficient discretion to consider potentially dispositive or otherwise 
significant issues on an expedited basis at their discretion and that 
the proposed amendments may unintentionally invite abuse or hamstring, 
rather than enlarge, the discretion of the administrative law judges on 
these issues. The ITCTLA notes the use of Markman hearings, during 
which judges may, at their discretion, take evidence, and where the 
schedule is set in the judge's discretion, taking into account the 
particulars of the investigation. The ITCTLA also notes former Chief 
Judge Luckern's practice of requesting written submissions by the 
parties on issues of particular concern prior to the evidentiary 
hearing. The ITCTLA further notes that Judge Lord has issued an order 
to show cause regarding domestic industry in a situation where the 
issue was potentially dispositive. The ITCTLA notes that instituting a 
specific single mechanism for the resolution of potentially dispositive 
issues may lead to the perception that administrative law judges lack 
the discretion to address dispositive issues at their own discretion 
and timeline.
    The ITCTLA also asserts that the occasions where a 100-day 
proceeding would be needed to dispose of an investigation early would 
be very rare, the potential for abuse in the majority of investigations 
would be great, and such proceedings would impose an increased burden 
on administrative law judges at the beginning of most investigations. 
Moreover, the ITCTLA asserts, were it to become increasingly common to 
address such issues as domestic industry or validity at the preliminary 
stages of an investigation, the increased number of hearings and the 
multi-stage discovery, as well as the resultant delay in proceeding 
with the investigation should the designated issue not dispose of the 
investigation, creates a strong potential for increased burden on the 
resources of the Commission and the parties, likely requiring the 
extension of target dates.
    The ITCTLA also notes that the Commission has not identified what 
constitutes a ``potentially dispositive issue'' and that it is unclear 
whether the issue must be capable of disposing of an entire 
investigation or whether, for example, lack of domestic industry on a 
subset of asserted patents would qualify. The ITCTLA also notes the 
Commission's statement that the proposed 100-day proceeding differs 
from summary determination in that the ruling is made following an 
evidentiary hearing, but cautions that this procedure would increase 
the number of evidentiary hearings, necessarily duplicating the efforts 
of the parties and resources of the Commission, while delaying the 
progress of the investigation.
    The ITCTLA concludes that it does not support the addition of a 
specific mechanism, apart from that set forth in proposed rule 
210.10(b)(3) and currently permitted through motions for summary 
determination and the inherent discretion of the administrative law 
judges, for the resolution of potentially dispositive issues. Rather, 
the ITCTLA recommends, administrative law judges should be permitted to 
continue to exercise their discretion in the timing and conduct of 
proceedings to address such issues, including any additional hearings. 
While providing no direct comment on the wording of proposed rule 
210.10(b)(3), the ITCTLA urges the Commission to reserve the 100-day 
proceeding for issues and investigations where it is apparent that the 
abbreviated proceeding is likely to dispose of the investigation. The 
ITCTLA cautions that extensive use of the procedure would otherwise 
delay discovery and proceeding to the merits of investigations for 
three months, which would also have the effect of extending target 
dates.
Commission Response
    As summarized above, the IPOA and ITCWG generally support the 
Commission's effort to codify its 100-day program, but request that the 
rules provide for a mandatory stay of the remainder of the case during 
pendency of the 100-day proceeding rather than leaving a stay to the 
discretion of the administrative law judge. The ITCTLA, on the other 
hand, argues that the 100-day program is unnecessary since 
administrative law judges already have ability to consider potentially 
dispositive issues on an expedited basis, for example, through the use 
of Markman proceedings or summary determinations. The ITCTLA asserts 
that use of the proposed 100-day proceeding could lead to the 
perception that the administrative law judges lack the authority to 
address dispositive issues at their own discretion and timeline. 
However, a purpose of the new rule is to provide the administrative law 
judges with an additional tool to efficiently adjudicate 
investigations. Administrative law judges will continue to have all the 
means currently at their disposal to adjudicate investigations as 
appropriate.
    The Commission notes the ITCTLA's concern regarding the 
administrative

[[Page 21147]]

burden on the administrative law judges, Commission, and parties with 
respect to additional discovery, hearings, and delay. However, the 100-
day proceeding is intended to adjudicate only issues which would 
entirely dispose of an investigation rather than to decide subsidiary 
issues, which are best addressed under other available procedures, such 
as the current summary determination procedure. As such, the types of 
issues appropriate for the 100-day proceeding are limited. However, 
identifying in the rules every potential issue that may be appropriate 
for a 100-day proceeding would unduly restrict the Commission's ability 
to designate any issue it deems suitable and appropriate. Accordingly, 
the final rule specifies that a potentially dispositive issue is one 
that would dispose of the entire investigation without enumerating 
specific issues that would qualify.
    Regarding whether the Commission should impose a mandatory stay of 
the remainder of the investigation during pendency of a 100-day 
proceeding, the Commission has decided to leave any stays within the 
discretion of the administrative law judges. As such, the Commission 
declines to impose a mandatory stay as requested by the IPOA and ITCWG.
Section 210.11
    Section 210.11--in particular, Sec.  210.11(a)--provides that the 
Commission will, upon institution of an investigation, serve copies of 
the nonconfidential version of the complaint and the notice of 
investigation upon the respondent(s), the embassy in Washington, DC of 
the country in which each respondent is located, and various government 
agencies. Section 210.11(a)(2) concerns service by the Commission when 
it has instituted temporary relief proceedings. The NPRM proposed 
amending Sec.  210.11(a)(2)(i) to clarify that the Commission will 
serve on each respondent a copy of the nonconfidential version of the 
motion for temporary relief, in addition to the nonconfidential version 
of the complaint and the notice of investigation.
    No comments concerning the proposed amendments to rule 210.11 were 
received. The Commission has therefore determined to adopt proposed 
rule 210.11(a)(2)(i) as stated in the NPRM with a typographical 
correction.
Section 210.12
    Section 210.12 specifies the information that must be included in a 
complaint requesting institution of an investigation under part 210. In 
particular, Sec.  210.12(a)(9) details the information a complaint is 
required to include when alleging a violation of section 337 with 
respect to the infringement of a valid and enforceable U.S. patent. The 
NPRM proposed amending Sec.  210.12(a)(9) by adding the requirement 
that complaints include the expiration date of each asserted patent.
    No comments concerning the proposed amendments to rule 210.12 were 
received. The Commission has therefore determined to adopt proposed 
rule 210.12(a)(9) as stated in the NPRM.
Section 210.14
    Section 210.14 provides for various pre- and post-institution 
actions, including amending the complaint and notice of investigation, 
making supplemental submissions, introducing counterclaims, providing 
submissions on the public interest, and consolidating investigations. 
The NPRM proposed amending section 210.14 to add paragraph (h), 
allowing the administrative law judge to sever an investigation into 
two or more investigations at any time prior to or upon issuance of the 
procedural schedule, based upon either a motion or upon the 
administrative law judge's judgment that severance is necessary to 
allow efficient adjudication. The Commission sought in particular 
comments regarding whether the administrative law judge's decision to 
sever should be in the form of an initial determination pursuant to new 
Sec.  210.42(c)(3) or an order.
    The NPRM also proposed adding Sec.  210.14(i), which would 
authorize the administrative law judge to issue an order designating a 
potentially dispositive issue for an early ruling under the 100-day 
procedure. The proposed rule would also provide authority for the 
presiding administrative law judge to hold expedited hearings on such 
dispositive issues in accordance with Sec.  210.36.
Section 210.14(h)
Comments
    The IPOA notes several potential ``unintended consequences'' of the 
proposed severance rule, including: increased motions practice; motions 
for severance filed for the purpose of administrative law judge 
shopping; potential inconsistencies or conflicts in the results of 
severed investigations; inefficiency due to assigning severed cases to 
different administrative law judges with differing procedural 
schedules; and increased cost. The IPOA also notes that severance, 
presumably by an administrative law judge after institution, ``would 
not only require a change to the notice of investigation, but also 
would warrant continuing the practice of Commission review.'' Moreover, 
the IPOA proposes that clear, enumerated factors governing severance 
should be indicated in the rule in order to provide notice to potential 
parties.
    The IPOA also suggests that the rule should not tie the ability of 
a party to file a motion to sever an investigation pursuant to proposed 
rule 210.14(h) with issuance of the procedural schedule. The IPOA 
cautions that doing so could delay issuance of the procedural schedule 
for a considerable time while the severance motion is briefed and 
considered by the administrative law judge. The IPOA notes that the 
rule should also clarify whether severance begins with the 
administrative law judge's order or after the Commission affirms, and 
how any severed investigations will be identified (e.g., with new 
numbers or by adding a, b, c, etc. to the end of the original 
investigation number). In addition, the IPOA contends that, consistent 
with current practice, motions impacting the notice of investigation be 
rendered by initial determination, an administrative law judge's 
decision to sever an investigation should be issued as an initial 
determination pursuant to current Sec.  210.42(c)(1).
    The ITCTLA supports allowing administrative law judges to sever an 
investigation where necessary to allow efficient adjudication. The 
ITCTLA cautions, however, that where parties, accused products, 
asserted domestic industry products, and asserted defenses presented in 
a complaint are similar, even notwithstanding technically different 
asserted patent families or different technologies, the scope of 
discovery, issues, and administration of the case may so overlap that 
severing an investigation into multiple investigations may lead to 
increased costs to the parties, more use of Commission resources, and/
or create inconsistencies between investigations. The ITCTLA states 
that only in rare circumstances would a single complaint present such 
different technologies and issues that severance of an investigation 
would best serve the timely and efficient investigation of the 
complaint.
    As such, the ITCTLA cautions that the proposed rule may 
unintentionally encourage motions to sever, creating additional 
workload on administrative law judges at the onset of investigations. 
In addition, the ITCTLA expresses concern that an administrative law 
judge presiding over severed

[[Page 21148]]

investigations would presumably create procedural schedules that either 
unduly push one investigation forward more quickly or else delays the 
second investigation. The ITCTLA also cautions that the need for 
multiple hearings, subpoenas, and motions where the parties are 
otherwise the same will likely create inefficiencies and possibly 
extend target dates. ITCTLA posits that, where issues are so dissimilar 
as to warrant multiple investigations, the complainant will likely 
itself limit or separate complaints or the Commission can address 
severance pre-institution. The ITCTLA also suggests the Commission 
provide guidelines or identify factors supporting severance in the 
commentary accompanying the final rule.
    Regarding the Commission's request for comments addressing whether 
the administrative law judge's decision to sever should be in the form 
of an initial determination or an order, the ITCTLA recommends that an 
order would be most appropriate so as to eliminate the time it takes to 
petition for review in the interest of expediting the investigation. 
The ITCTLA recommends the following amendment to proposed rule 
210.14(h):

    The administrative law judge may determine to sever an 
investigation into two or more investigations at any time prior to 
or upon thirty days from institution, based upon either a motion or 
upon the administrative law judge's own judgment that severance is 
necessary to allow efficient adjudication and limit the number of 
unrelated technologies and products and/or unrelated patents 
asserted in a single investigation. The administrative law judge's 
decision will be in the form of an [initial determination] order 
[pursuant to 210.41(c)(3)].

    The ITCWG insists that proposed rule 210.14(h) is unnecessary as 
the Commission and administrative law judges have had no difficulties 
severing and consolidating investigations where appropriate. The ITCWG 
cautions that the proposed rule may have several unintended 
consequences, for example, inviting motions for severance and, thus, 
leading to increased motions practice. The ITCWG notes that the 
potential increase could be exacerbated by the proposed rule's silence 
as to whether severed cases stay with the originally assigned 
administrative law judge, and that, if not, the rule could invite 
motions for severance that are actually attempts at ``administrative 
law judge shopping.''
    The ITCWG suggests certain changes to proposed rule 210.14(h). 
Specifically, the ITCWG notes the proposed rule requires that the 
presiding administrative law judge make decisions on severance prior to 
issuance of the procedural schedule. The ITCWG argues this requirement 
could delay issuance of the procedural schedule for a considerable time 
while a severance motion is briefed and considered by the 
administrative law judge. Furthermore, the ITCWG asserts, it is unclear 
whether severance would begin with issuance of the administrative law 
judge's initial determination or after the Commission has affirmed the 
judge's ruling. The ITCWG also notes that the proposed rule leaves 
unclear what standard would apply in determining whether patents and 
technology are sufficiently related. The ITCWG states that reference to 
the Federal Rules of Civil Procedure may provide guidance, but neglects 
to identify any specific rules the Commission should consider. Lastly, 
the ITCWG notes that the Commission should indicate how severed cases 
would be designated, such as with a new investigation number or with a 
suffix to the existing investigation number (e.g. by adding a, b, c, 
etc. to the end of the original investigation number).
    The CCCME requests that proposed rule 210.14(h) be amended to 
explicitly allow a respondent to file a motion to sever an 
investigation. The CCCME also suggests that the proposed rule should 
state clearly whether, after severance, the investigations will be 
presided over by the same administrative law judge. The CCCME further 
suggests the Commission provide detailed requirements for severance to 
avoid abuse of this procedure.
    Although Mr. Chubb generally supports implementation of proposed 
rule 210.14(h), he cautions that the procedure laid out in the proposed 
rule (and presumably proposed rule 210.22) would open up the early 
stages of many investigations to an influx of motions to sever with 
corresponding uncertainty, which could potentially disrupt the orderly 
initiation of the discovery process and other aspects of early case 
development. Mr. Chubb does note, however, that the same concern could 
be applied to the judge's authority to consolidate cases under existing 
Sec.  210.14(g), which has not in fact proven to be problematic. 
Specifically, Mr. Chubb points out that Sec.  210.14(g) authorizes 
administrative law judges to consolidate investigations only where both 
investigations are already before the same judge, making cases where it 
might have applicability quite rare. Mr. Chubb asserts that this 
limitation would not be relevant in cases of severance, arguably making 
the applicability of severance more prevalent.
    With respect to whether the administrative law judge's decision to 
sever should be in the form of an order or an initial determination, 
Mr. Chubb suggests the decision should be by initial determination 
since severance significantly impacts the fundamental scope of one or 
more investigations, as well as the number of investigations the 
Commission undertakes. Mr. Chubb asserts that these are matters on 
which the Commission should automatically have a say. Lastly, Mr. Chubb 
suggests that instead of the currently proposed requirement that an 
administrative law judge determine whether to sever an investigation 
``at any time prior to or upon issuance of the procedural schedule,'' 
that the proposed rule set a deadline of 30 days after publication of 
the notice of investigation. Mr. Chubb notes that the issuance of a 
procedural schedule is completely within a judge's discretion and 
influenced by numerous factors which affect the timing of when such 
orders are issued and may vary widely from investigation to 
investigation.
Commission Response
    The majority of the commenters agree that the administrative law 
judges should be able to sever investigations where a large number of 
technologies or unrelated patents are at issue. However, the commenters 
do note that the proposed rule could lead to increased motions practice 
and resultant delay. Several commenters request that the Commission 
provide criteria for severance under the rule, presumably suggesting 
any such criteria be consistent with proposed rule 210.10(a)(6). A 
majority of the commenters disagree with tying severance to issuance of 
the procedural schedule, with Mr. Chubb suggesting the Commission 
require the administrative law judge to act within of 30 days after 
publication of the notice of investigation. Lastly, the commenters 
express no consensus regarding whether the administrative law judge's 
decision to sever should be in the form of an order or an initial 
determination.
    As with proposed rule 210.10(a)(6), the Commission declines to 
impose any rigid criteria for when an administrative law judge might 
determine that severing an investigation is appropriate. Rather, the 
Commission notes that severance may be appropriate where, for example, 
the complaint alleges a significant number of unrelated technologies, 
diverse products, unrelated patents, and/or unfair methods of 
competition and unfair acts such that the resulting investigation, if 
it proceeds as a single case, would be unduly unwieldy or lengthy.

[[Page 21149]]

    Regarding whether the administrative law judge should issue a 
severance decision by order or initial determination, the ITCTLA 
suggests the administrative law judge should issue an order, while Mr. 
Chubb recommends the administrative law judge issue an initial 
determination. The ITCWG does not explicitly state a preference, but 
its response seems to assume that the administrative law judge would 
issue an initial determination. While the Commission agrees with Mr. 
Chubb's point that severance of an investigation is a significant 
event, the Commission disagrees that it fundamentally impacts the scope 
of an investigation since no part of the complaint would be limited or 
broadened. Rather, only the administrative aspect of the investigation 
would be affected, which should not require Commission approval beyond 
the Commission's initial decision to institute an investigation based 
on the complaint. The Commission has therefore amended proposed rule 
210.14(h) to allow the presiding administrative law judge to sever an 
investigation by order.
    Mr. Chubb suggests a requirement that an administrative law judge 
decide whether to sever an investigation within 30 days after 
publication of the notice of investigation, noting that the timing for 
issuance of a procedural schedule varies with each investigation. The 
Commission agrees that the timing of the administrative law judge's 
decision to sever should be predictable. The final rule provides that 
an administrative law judge may determine to sever an investigation at 
any time prior to or upon thirty days from institution of the 
investigation.
    Lastly, the ITCWG and CCCME request clarification regarding whether 
newly severed investigations will be assigned to new administrative law 
judges and how severed investigations will be designated. Regarding the 
first point, the final rule provides that the ``new'' investigation(s) 
will be assigned to the same administrative law judge unless the 
severed case is reassigned at the discretion of the chief 
administrative law judge. Moreover, if the Commission has delegated 
public interest fact finding to the administrative law judge in an 
investigation, the delegation shall continue to be in effect for any 
``new'' investigations resulting from severance. In addition, the newly 
severed investigation(s) will be designated with a new investigation 
number.
Section 210.14(i)
Comments
    The IPOA argues against adoption of a rule providing that a 100-day 
proceeding may be designated post-institution sua sponte by the 
administrative law judge. The IPOA cautions that the administrative law 
judge is unlikely to be in a better position than the Commission to 
make an assessment concerning which issue(s) are appropriate for early 
disposition 30 days into an investigation. The IPOA further notes a 
conflict between proposed rules 210.14(i) and 210.22 in that the former 
allows an administrative law judge 30 days after institution to 
designate a potentially dispositive issue for early determination, 
while the latter allows parties to bring a motion for such designation 
within 30 days of institution. The IPOA suggest that it would be better 
if the rules stated that parties may bring a motion to designate, or 
the judge may designate sua sponte, within 30 days of institution, and 
to add a second deadline by which the judge must rule after a motion is 
fully briefed.
    The ITCWG notes a potential conflict between proposed rules 
210.14(i) and 210.22 in that, since proposed rule 210.14(i) allows the 
administrative law judge 30 days after institution to designate an 
issue for early disposition it could arguably prevent the 
administrative law judge from ruling on a motion pursuant to proposed 
rule 210.22 after 30 days. The ITCWG suggests that, if the rules are 
implemented, the Commission should import 210.14(i) into 210.22, noting 
that parties may bring a motion to designate, or the judge may 
designate sua sponte, within 30 days.
    The ITCTLA argues that the circumstance where a dispositive issue 
is not raised before the Commission prior to institution, thus enabling 
the Commission to designate the issue pre-institution pursuant to 
proposed rule 210.10(b)(3), would suggest that the issue is not 
amenable to early identification and resolution. As such, the ITCTLA 
implies that administrative law judges should not be able to designate 
an issue post-institution, as enabled by proposed rule 210.14(i). The 
ITCTLA also suggests clarifying the interaction between proposed rules 
210.14(i) and 210.22.
    Adduci cautions that it is unclear whether proposed rules 210.14(i) 
and 210.22 can coexist in the present form. Adduci suggests that, if 
the parties are permitted a certain period of time during which they 
may move for an order designating a potentially dispositive issue for 
an early ruling, the administrative law judge's authority to issue such 
an order needs to exist for some time period thereafter. Adduci notes, 
however, that there should be a reasonable deadline for any such order, 
whether requested by the parties or issued sua sponte. To address the 
inconsistency, Adduci recommends that the Commission extend the 
administrative law judge's authority beyond the current proposal of 30 
days, for example, allowing the judge 45 days to issue an order 
designating an issue for early disposition, which would allow the judge 
15 days to rule on a motion filed on the last day of the 30-day window. 
Alternatively, Adduci suggests the deadline for parties to file a 
motion could be shortened, providing parties up to 21 days to file a 
motion under proposed rule 210.22 and setting a 14-day deadline (from 
the date of filing) for the administrative law judge to rule on the 
motion. Adduci notes this would allow parties up to three weeks to 
prepare and file a motion, while allowing the administrative law judge 
two full weeks to set a briefing schedule, consider the motion, and 
issue an order.
    Adduci suggests that the Commission should retain the 30-day limit 
allowing an administrative law judge to designate an issue for early 
disposition sua sponte pursuant to proposed rule 210.14. Adduci notes, 
however, that it is unclear whether the Commission actually intended to 
give the administrative law judge authority to issue an order 
designating a potentially dispositive issue for an early ruling sua 
sponte, or whether such an order would need to be in response to a 
party's motion under proposed rule 210.22 (discussed below). Adduci 
requests that the Commission amend proposed rule 210.14(i) to 
explicitly clarify its intent.
    Mr. Chubb recommends that the Commission decline to enact proposed 
rule 210.14(i) until it has more experience with 100-day proceedings. 
Mr. Chubb asserts that providing administrative law judges with the 
authority to designate an issue for early disposition is likely to 
trigger disruptive motions practice with negative consequences, similar 
to his comments below with respect to proposed rule 210.22. Mr. Chubb 
cautions that this disruption may outweigh the marginal utility of 
providing administrative law judges with the authority to designate, 
sua sponte, potentially dispositive issues for early determination. Mr. 
Chubb notes that judges retain the authority to grant summary 
determination motions and the discretion to hold claim construction

[[Page 21150]]

hearings and to make claim construction rulings prior to any final 
evidentiary hearing.
Commission Response
    Of the three comments submitted regarding proposed rule 210.14(i), 
two caution against implementation of the rule, although for slightly 
different reasons. After further consideration and in view of the 
concerns expressed by the commentators, the Commission has determined 
not to implement proposed rule 210.14(i) at this time.
Section 210.15
    Section 210.15 provides the procedure and requirements for motions 
during the pendency of an investigation and related proceedings, 
whether before an administrative law judge or before the Commission. 
The proposed rule would amend Sec.  210.15(a)(2) to clarify that this 
provision does not allow for motions, other than motions for temporary 
relief, to be filed with the Commission prior to institution of an 
investigation.
Comments
    Mr. Chubb states that the proposed amendment to Sec.  210.15(a)(2) 
fails to clarify that rule 210.15 is not intended to allow pre-
institution motions other than those for temporary relief. Rather, Mr. 
Chubb states that the proposed language leaves the rule ambiguous as to 
whether the proposed parties or others are permitted to file motions 
prior to institution. Mr. Chubb also asserts that the proposed rule 
mistakenly cites to current rule 210.52, which concerns motions for 
temporary relief filed with a complaint, and should instead cite to 
rule 210.53, which concerns motions for temporary relief filed after a 
complaint is filed but before the Commission determines to institute an 
investigation based on the complaint. Mr. Chubb suggests proposed rule 
210.15(a)(2) be reworded as follows to directly state that motions are 
not permitted prior to institution, except for motions for temporary 
relief:

    When an investigation or related proceeding is before the 
Commission, all motions shall be addressed to the Chairman of the 
Commission. All motions shall be filed with the Secretary and shall 
be served upon each party. Motions may not be filed during a 
preinstitution proceeding except for motions for temporary relief as 
prescribed by Sec.  210.53.

    Mr. Chubb also suggests that, in a future rulemaking, the 
Commission rescind Commission rule 210.53 noting that the rule is 
seldom if ever invoked because situations where circumstances 
warranting temporary relief arise only between the filing of the 
complaint and institution 30 days later are almost inconceivable. Mr. 
Chubb further asserts that the rule runs contrary to the Commission's 
goal of providing maximum notice and disclosure to proposed respondents 
and the public that temporary relief is being sought by a complainant.
Commission Response
    The Commission agrees with Mr. Chubb that the current wording of 
proposed rule 210.15(a)(2) should be clarified to indicate that the 
rule is intended to prohibit the filing of any motions before the 
Commission during preinstitution proceedings except with respect to 
motions for temporary relief filed under 210.53. The Commission has 
determined to amend proposed rule 210.15(a)(2) accordingly.
Section 210.19
    Section 210.19 provides for intervention in an investigation or 
related proceeding. The NPRM proposed amending Sec.  210.19 to clarify 
that motions to intervene may be filed only after institution of an 
investigation or a related proceeding.
    No comments concerning the proposed amendments to rule 210.19 were 
received. The Commission has therefore determined to adopt proposed 
rule 210.19 as stated in the NPRM.
Section 210.21
    Section 210.21(b)(2) and (c)(2) authorize the presiding 
administrative law judge to grant by initial determination motions to 
terminate an investigation due to settlement or consent order, 
respectively. The paragraphs further provide that the Commission shall 
notify certain government agencies of the initial determination and the 
settlement agreement or consent order. Those agencies include the U.S. 
Department of Health and Human Services, the U.S. Department of 
Justice, the Federal Trade Commission, the U.S. Customs Service (now 
U.S. Customs and Border Protection), and such other departments and 
agencies as the Commission deems appropriate.
    Currently, the Commission effects such notice through various 
electronic means, including posting a public version of the initial 
determination and public versions of any related settlement agreements 
or consent orders on its website. The proposed rule would amend Sec.  
210.21(b)(2) and (c)(2) to clarify that the Commission need not 
otherwise specifically notify the listed agencies regarding any such 
initial determination and related settlement agreements or consent 
orders. This change is intended to conserve Commission resources and 
does not relieve the Commission of its obligation under section 
337(b)(2) to consult with and seek advice and information from the 
indicated agencies as the Commission considers appropriate during the 
course of a section 337 investigation. The Commission has consulted 
with the agencies in question and they have not requested that the 
Commission provide direct notice beyond its current practice.
    In addition, Sec.  210.21(c)(3) sets out the required contents of a 
consent order stipulation while Sec.  210.21(c)(4) sets out the 
required contents of the consent order. The proposed rule would amend 
Sec.  210.21(c)(3)(ii)(A) to conform to Sec.  210.21(c)(4)(x), which 
requires that the consent order stipulation and consent order contain a 
statement that a consent order shall not apply to any intellectual 
property right that has been held invalid or unenforceable or to any 
adjudicated article found not to infringe the asserted right or found 
no longer in violation by the Commission or a court or agency of 
competent jurisdiction in a final, nonreviewable decision. The proposed 
rule would also amend Sec.  210.21(c)(4)(viii) to add the phrase ``any 
asserted patent claims,'' delete the phrase ``the claims of the 
asserted patent,'' delete the second occurrence of the word ``claims,'' 
and add the word ``claim'' after ``unfair trade practice'' in the 
phrase ``validity or enforceability of the claims of the asserted 
patent claims . . . unfair trade practice in any administrative or 
judicial proceeding to enforce the Consent Order[.]'' The proposed rule 
would further amend Sec.  210.21(c)(4)(x) to add the word ``asserted'' 
before ``claim of the patent. . .'' and to add the word ``claim'' after 
``or unfair trade practice . . .'' The proposed rule also would add new 
Sec.  210.21(c)(4)(xi) to require in the consent order an admission of 
all jurisdictional facts, similar to the provision requiring such a 
statement in the consent order stipulation (210.21(c)(3)(i)(A)).
Comments
    Adduci notes that, while having no specific comments on or issues 
with the proposed amendments to Sec.  210.21, it has some concerns with 
the rule which are not addressed by the proposed amendments. In 
particular, Adduci notes that Sec.  210.21(c)(4) states that the 
``Commission will not issue consent orders with terms beyond those 
provided for in this section, and will not issue consent orders that 
are inconsistent with this section.'' Adduci asserts that the language 
of the rule

[[Page 21151]]

suggests that the Commission may issue consent orders that use language 
different from what is included in the rule so long as the proposed 
consent order does not contain any additional ``terms'' and is not 
inconsistent with the rule. Adduci states that the word ``terms'' could 
be interpreted either to mean the specific words used in the rule or to 
mean the general provisions of a consent order outlined in Sec.  
210.21(c)(3).
    Adduci notes that, in recent practice, the administrative law 
judges and the Commission have interpreted rule 210.21(c)(4) to mean 
that the language of a proposed consent order must mirror the exact 
language of the Commission rule (except where otherwise specifically 
permitted). Adduci cautions that, while this is a reasonable 
interpretation of the rule, some parties may not be aware of this 
practice, and extensive public and private resources are sometimes 
wasted negotiating and reviewing proposed consent orders that differ 
from the rules and are ultimately deemed noncompliant. Adduci 
recommends the Commission consider amending the language of rule 
210.21(c)(4) to clarify its intent, stating, for example, that the 
``Commission will not issue consent orders with language that differs 
from that provided for in this section, except where specifically 
permitted.'' Adduci further suggests the Commission clarify which 
portions of the consent order can differ from the prescribed language 
of the rule, such as when addressing disposition of existing inventory. 
Additionally, Adduci suggests the Commission remove the language 
stating that it will not issue consent orders that are inconsistent 
with the rules, arguing that such language is unnecessary since, under 
the recommended amendments, the rules would already limit the consent 
order to the prescribed language. Adduci recommends that, in lieu of 
its suggested amendments, to the extent the Commission will permit 
deviation from the specific language of rule 210.21(c)(3), the 
Commission should make clear in which sub-paragraphs it will permit 
alternate language.
Commission Response
    The wording of proposed rule 210.21 is clear that the language of 
the consent order must be consistent with the language of the consent 
order stipulation except where otherwise specifically permitted. 
Because the amendments Adduci suggests were not part of the current 
rulemaking effort, the Commission has determined to reserve them for 
future consideration. No comments were received concerning the 
currently proposed amendments to rule 210.21. The Commission has 
therefore determined to adopt proposed rule 210.21 substantially as 
stated in the NPRM.
Section 210.22
    The proposed rule would add new Sec.  210.22 to allow parties to 
file a motion within 30 days of institution of the investigation 
requesting the presiding administrative law judge to issue an order 
designating a potentially dispositive issue for an early ruling. The 
proposed rule would also provide authority for the presiding 
administrative law judge to hold expedited hearings on such issues in 
accordance with Sec.  210.36.
Comments
    The IPOA argues against adoption of a rule providing that a 100-day 
proceeding may be designated post-institution by motion. The IPOA 
cautions that parties are unlikely to be in a better position than the 
Commission to make an assessment concerning which issue(s) are 
appropriate for early disposition 30 days into an investigation. The 
IPOA also asserts that the potential flood of unnecessary motions will 
take significant administrative law judge and attorney time and could 
contribute to overall delay. As discussed above, the IPOA further notes 
a conflict between proposed rules 210.14(i) and 210.22 in that the 
former allows an administrative law judge 30 days after institution to 
designate a potentially dispositive issue for early determination, 
while the latter allows parties to bring a motion for such designation 
within 30 days of institution. The IPOA suggest that it would be better 
if the rules stated that parties may bring a motion to designate, or 
the judge may designate sua sponte, within 30 days of institution, and 
to add a second deadline by which the judge must rule after a motion is 
fully briefed.
    The ITCWG expresses concern that proposed rule 210.22 may invite 
motions practice that will have no meaningful benefit. Specifically, 
the ITCWG cautions that it is unlikely that parties or the 
administrative law judge will be in a better position in the first 30 
days of an investigation to assess whether an issue is suitable for 
early disposition than the Commission will be during its pre-
institution review. The ITCWG notes, for example, that even if the 
parties were to serve discovery on potentially dispositive issues 
immediately upon institution, responses would not be due until after 
the expiration of the 30-day period. The ITCWG also notes that the 
proposed 30-day period for filing a motion to designate an issue for 
early disposition would effectively foreclose the ability of 
intervenors to move for assignment in the program given the time a 
motion for intervention takes to be adjudicated. As discussed above, 
The ITCWG further notes a potential conflict between proposed rules 
210.14(i) and 210.22 in that, since proposed rule 210.14(i) allows the 
administrative law judge 30 days after institution to designate an 
issue for early disposition it would likely prevent the administrative 
law judge from ruling on a motion filed 30 days after institution 
pursuant to proposed rule 210.22. The ITCWG suggests that, if the rules 
are implemented, the Commission should import Sec.  210.14(i) into 
Sec.  210.22, noting that parties may bring a motion to designate, or 
the judge may designate sua sponte, within 30 days.
    The ITCTLA cautions that, under proposed rule 210.22, many parties 
will move for the designation of a potentially dispositive issue, even 
where the issue is likely to be fact-intensive and has historically 
been examined in the regular course of an investigation. The ITCTLA 
further warns that such motions create the risk of burdening the 
administrative law judge with significant motion practice at the onset 
of many, if not most, investigations.
    As noted above, The ITCTLA also suggests clarifying the interaction 
between proposed rules 210.14(i) and 210.22. The ITCTLA states that, if 
the administrative law judge must rule on a motion pursuant to proposed 
rule 210.22 within the 30-day time limit of proposed rule 210.14(i), 
the deadline for filing such a motion should be sufficiently early to 
allow the other party to respond and the judge to rule within that 
timeframe. The ITCTLA notes that, if the administrative law judge is 
not bound by the time limit indicated in proposed rule 210.14(i), then 
there appears to be no time limit for ruling on a motion under proposed 
rule 210.22. In that case, the ITCTLA suggests that proposed rule 
210.22 be changed to require the motion to be filed early enough to 
provide the opposing party an opportunity to respond and to give the 
administrative law judge an opportunity to rule on the motion in a 
similar timeframe as set forth in proposed rule 210.14(i). Accordingly, 
the ITCTLA suggests that proposed rule 210.22 require a moving party to 
file its request within 14 days of institution of an investigation and 
that the opposing party be given seven days to respond, allowing the 
administrative law judge to issue an order within the 30-day time limit 
set forth in proposed rule 210.14(i).

[[Page 21152]]

    As noted above, Adduci also cautions that it is unclear whether 
proposed rules 210.14(i) and 210.22 can coexist in the present form. 
Adduci suggests that, if the parties are permitted a certain period of 
time during which they may move for an order designating a potentially 
dispositive issue for an early ruling, the administrative law judge's 
authority to issue such an order needs to exist for some time period 
thereafter. Adduci notes, however, that there should be a reasonable 
deadline for any such order, whether requested by the parties or issued 
sua sponte. To address the inconsistency, Adduci recommends that the 
Commission extend the administrative law judge's authority beyond the 
current proposal of 30 days, for example, allowing the judge 45 days to 
issue an order designating an issue for early disposition, which would 
allow the judge 15 days to rule on a motion filed on the last day of 
the 30-day window. Alternatively, Adduci suggests the deadline for 
parties to file a motion could be shortened. Adduci cautions, however, 
that the Commission should be mindful that immediately following 
institution, many respondents are locating and evaluating counsel and 
have little time to assess the merits of the case, including whether 
there is a potentially dispositive issue appropriate for an early 
ruling. As such, Adduci notes that the Commission should exercise 
caution in shortening the time during which a party may file a motion 
under proposed rule 210.22 for an order designating an issue for early 
disposition.
    As a way to balance the concerns of allowing parties sufficient 
time to retain counsel and determine potentially dispositive issues 
with ensuring that the administrative law judge has sufficient time to 
set a briefing schedule and rule on such a motion, Adduci suggests 
providing parties up to 21 days to file a motion under proposed rule 
210.22 and setting a 14-day deadline (from the date of filing) for the 
administrative law judge to rule on the motion. Adduci notes this would 
allow parties up to three weeks to prepare and file a motion, while 
allowing the administrative law judge two full weeks to set a briefing 
schedule, consider the motion, and issue an order.
    Mr. Chubb recommends the Commission decline to enact proposed rule 
210.22 until the Commission and administrative law judges have more 
experience with 100-day proceedings. Mr. Chubb expresses concern that 
the Commission and administrative law judges will face significant 
difficulties if the Commission permits parties to file motions for 100-
day proceedings and the judges are given authority to initiate such 
proceedings upon motion after institution of an investigation. Mr. 
Chubb cautions that respondents will likely file such motions in many, 
if not a majority of cases, resulting in disruptive and expensive 
motions practice from the very beginning of an investigation. Mr. Chubb 
notes that respondents will have little to lose if their motion is 
denied, but if their motion is granted, there is the likely prospect of 
the target date being extended if early disposition proves 
unsuccessful.
    Mr. Chubb suggests that, should the Commission decide to adopt 
proposed rule 210.22, the Commission shorten the time for parties to 
file a motion for a 100-day proceeding to 15 days, arguing that 
allowing any additional time would impede the administrative law 
judge's ability to rule on such a motion within the 30 days allocated 
in proposed rule 210.14(i). Mr. Chubb states that, together, proposed 
rules 210.14(i) and 210.22 would shorten the amount of productive time 
available in which to conduct a 100-day proceeding and thereby 
jeopardize the parties' ability to prepare for and effectively 
participate in the proceeding.
Commission Response
    The majority of the commenters recommend that the Commission not 
permit parties to request designation of potentially dispositive issues 
by motion, citing potential motions practice abuse, delay, and burden 
to the parties and the administrative law judge. After further 
consideration and in view of the concerns expressed by the 
commentators, the Commission has determined not to implement proposed 
rule 210.22 at this time.
Section 210.25
    Section 210.25 provides for the process by which a party may 
request, and the presiding administrative law judge or the Commission 
may grant, sanctions. In particular, Sec.  210.25(a)(1) states the 
grounds for which a party may file a motion for sanctions. The NPRM 
proposed amending Sec.  210.25(a)(1) to clarify that a motion for 
sanctions may be filed for abuse of discovery under Sec.  210.27(g)(3).
    In addition, Sec.  210.25(a)(2) provides that a presiding 
administrative law judge or the Commission may raise sanctions issues 
as appropriate. The NPRM proposed amending Sec.  210.25(a)(2) to 
clarify paragraph (a)(2) regarding sanctions for abuse of discovery is 
Sec.  210.27(g)(3).
    No comments concerning the proposed amendments to rule 210.25 were 
received. The Commission has therefore determined to adopt proposed 
rules 210. 25(a)(1) and (2) as stated in the NPRM.
Section 210.27
    Section 210.27 contains the general provisions governing discovery 
during a section 337 investigation or related proceeding. The NPRM 
proposed adding Sec.  210.27(e)(5) to be consistent with Federal Rule 
of Civil Procedure 26 concerning the preservation of privilege between 
counsel and expert witnesses. In particular, the proposed rule 
specifies that privilege applies to communications between a party's 
counsel and any expert witness retained on behalf of that party and to 
any draft reports or disclosures that the expert prepares at counsel's 
behest.
    Section 210.27(g) details the requirements of providing appropriate 
signatures with every discovery request, response, and objection, and 
the consequences for failing to do so. The NPRM proposed amending Sec.  
210.27(g)(3) to clarify that a presiding administrative law judge or 
the Commission may impose sanctions if, without substantial 
justification, a party certifies a discovery request, response, or 
objection in violation of Sec.  210.27(g)(2).
    No comments concerning the proposed amendments to rule 210.27 were 
received. The Commission has therefore determined to adopt proposed 
rules 210.27(e)(5) and (g)(3) as stated in the NPRM.
Section 210.28
    Section 210.28 provides for the taking, admissibility, and use of 
party and witness depositions. In particular, Sec.  210.28(h)(3) 
provides that the deposition of a witness, whether or not a party, may 
be used for any purpose if the presiding administrative law judge finds 
certain circumstances exist. The NPRM proposed adding Sec.  
210.28(h)(3)(vi) to allow, within the discretion of the presiding 
administrative law judge, the use of agreed-upon designated deposition 
testimony in lieu of live witness testimony absent the circumstances 
enumerated in Sec.  210.28(h)(3).
    No comments concerning the proposed amendments to rule 210.28 were 
received except for Mr. Chubb's, expressing his approval and noting 
that allowing designated deposition testimony in lieu of live witness 
testimony at hearings would eliminate much disagreement and confusion 
regarding the propriety of this common practice. The Commission has 
therefore

[[Page 21153]]

determined to adopt proposed rule 210.28(h)(3)(vi) as stated in the 
NPRM.
Section 210.32
    Section 210.32 provides for the use of subpoenas during the 
discovery phase of a section 337 investigation. In particular, Sec.  
210.32(d) provides for the filing of motions to quash a subpoena that 
the presiding administrative law judge has issued. The NPRM proposed 
amending Sec.  210.32(d) to clarify that a party upon which a subpoena 
has been served may file an objection to the subpoena within ten days 
of receipt of the subpoena, with the possibility of requesting an 
extension of time for filing objections for good cause shown. The NPRM 
also proposed amending Sec.  210.32(d) to clarify that any motion to 
quash must be filed within ten days of receipt of the subpoena, with 
the possibility of requesting an extension of time for good cause 
shown. The proposed amendment is intended to bring the Commission's 
subpoena practice into closer conformity with the Federal Rules of 
Civil Procedure. The Commission requested in particular comments 
concerning any potential conflicts that may arise from copending 
objections and motions to quash.
    In addition, Sec.  210.32(f) authorizes the payment of fees to 
deponents or witnesses subject to a subpoena. The NPRM proposed 
amending Sec.  210.32(f)(1) to clarify that such deponents and 
witnesses are entitled to receive both fees and mileage in conformance 
with Federal Rule of Civil Procedure 45(b)(1) and to correct the 
antecedent basis for ``fees and mileage'' as recited in Sec.  
210.32(f)(2).
Comments
    The IPOA supports the proposed amendment to Sec.  210.32(d) 
permitting service of objections to subpoenas. The IPOA does, however, 
express concern that having objections and motions to quash due within 
the same short ten-day period will not provide adequate opportunity for 
parties to negotiate subpoena-related issues before a motion to quash 
must be filed. Accordingly, the IPOA recommends allowing 20 days to 
move to quash, which would permit parties some time to meet and confer 
regarding subpoena objections and possibly avoid motions practice 
without unduly delaying the investigation. The IPOA questions whether 
the removal of ``motions to limit'' from the proposed rule was 
intentional and intended to be subsumed into the new objections 
process. The IPOA also argues that the requirement for parties to show 
good cause for an extension of time to serve objections or to file 
motions to question unduly restricts an administrative law judge's 
ability to allow parties additional time or to permit parties to 
jointly agree on extensions. The IPOA suggests the following amendment 
to proposed rule 210.32(d)(1):

    Any objection to a subpoena shall be served in writing on the 
party or attorney designated in the subpoena within the later of 10 
days after receipt of the subpoena or within such other time as the 
administrative law judge may allow or the party serving the subpoena 
may permit. [The administrative law judge may, for good cause shown, 
extend the time in which objections may be filed.]

    and proposed rule 210.32(d)(2):

    Any motion to quash a subpoena shall be filed within [10] the 
later of 20 days after receipt of the subpoena or within such other 
time as the administrative law judge may allow. [The administrative 
law judge may, for good cause shown, extend the time in which 
motions to quash may be filed.]

    The ITCTLA states that it appreciates the Commission's efforts to 
bring its subpoena practice into closer conformity with the Federal 
Rules of Civil Procedure. The ITCTLA, however, expresses several 
concerns with the effect and clarity of proposed rule 210.32(d) and, in 
particular, the respective roles of objections and motions to quash. In 
particular, the ITCTLA notes that it supports the addition of a 
mechanism, like in Federal District Court, that permits a third party 
subject to a subpoena to serve objections to the subpoena. 
Specifically, the ITCTLA notes that proposed rule 210.32(d)(1) does not 
indicate the effect of filing such objections, whereas Fed. R. Civ. P. 
45(d)(2)(B) provides that, if an objection is made, the party serving 
the subpoena may move for an order compelling compliance. The ITCTLA 
asserts that the proposed rule is unclear as to whether upon service of 
objections, the party has discharged its obligations with respect to 
the subpoena (thus shifting the burden to the party that requested the 
subpoena to move for a request for judicial enforcement) or whether the 
party subject to the subpoena must now simultaneously file both 
objections and a motion to quash if it seeks to limit a subpoena. The 
ITCTLA suggests that, if the intent of the proposed rule is the former, 
which would be more in keeping with the federal rules, the Commission 
amend the proposed rule as indicated below.
    The ITCTLA also questions the removal of the ``motion to limit'' 
language, noting that if the intent is to permit the option of filing 
objections if a party objects in part to a subpoena and to file a 
motion to quash if the subpoenaed party objects in full, such is not 
clear from the proposed rules or the NPRM. Lastly, the ITCTLA expresses 
concern over the requirement of good cause shown for any extension of 
time beyond ten days to serve objections or file a motion to quash. The 
ITCTLA asserts that the proposed rule unduly limits the ability of 
administrative law judges to permit additional time in their ground 
rules or to permit parties to jointly agree on extensions for 
objections without the need for a motion. In view of its comments, the 
ITCTLA suggests the following amendments to proposed rule 210.32(d)(1):

    Any objection to a subpoena shall be served in writing on the 
party or attorney designated in the subpoena within the later of 10 
days after receipt of the subpoena or within such time as the 
administrative law judge may allow or the party or attorney 
designated in the subpoena may permit. [The administrative law judge 
may, for good cause shown, extend the time in which objections may 
be filed.] If an objection is made, the party that requested the 
subpoena may move for a request for judicial enforcement.

and proposed rule 210.32(d)(2):

    Any motion to quash a subpoena shall be filed within the later 
of 10 days after receipt of the subpoena or within such time as the 
administrative law judge may allow. [The administrative law judge 
may, for good cause shown, extend the time in which motions to quash 
may be filed.]

    Adduci expresses concern that the 10-day deadline in proposed rule 
210.32(d)(2) for filing motions to quash, particularly in light of the 
proposed 10-day deadline for objections under proposed rule 
210.32(d)(1), will result in unnecessary motions to quash and waste 
private and public resources. Adduci states that, in practice, a party 
served with a subpoena should first serve its objections (as proposed 
in rule 210.32(d)(1)), and should thereafter have an opportunity to 
meet and confer with the requesting party on those objections before 
being required to file a motion to quash. Adduci notes that parties are 
often able to resolve disputes over a subpoena without the need for a 
motion to quash. Accordingly, Adduci recommends the Commission modify 
the language of proposed rule 210.32(d)(2) to require that any motion 
to quash be filed within twenty days of receipt of the subpoena. 
Furthermore, Adduci suggests the rule make clear that a motion to quash 
may be filed only if the movant: (1) Timely served objections pursuant 
to proposed rule 210.32(d)(1), and (2) met and conferred with the 
requesting party to make a good faith effort to resolve any issues that 
it has with the subpoena. Adduci states that offsetting the deadlines 
for objections and motions to quash would

[[Page 21154]]

provide notice of the receiving party's objections and allow sufficient 
time for the parties to attempt to resolve those issues without 
resorting to motions practice.
    Mr. Chubb notes that, in practice, motions to quash subpoenas are 
rarely filed within 10 days, since the parties will generally discuss 
the breadth of the subpoena before reaching an impasse that 
necessitates a motion to quash. Mr. Chubb suggests that, since it 
appears the Commission's intent is that the time for motions to quash 
ultimately be determined by the administrative law judge, proposed rule 
210.32(d)(2) should state so directly by expressly giving the judge the 
ability to set the time for filing motions to quash in the first 
instance, rather than the current proposal which is directed to 
extension of time for such motions. Mr. Chubb suggests the following 
language for proposed rule 210.32(d)(2):

    Any motion to quash a subpoena shall be filed within 10 days 
after receipt of the subpoena or within a period of time set by the 
administrative law judge. The administrative law judge may, for good 
cause shown, extend the time in which motions to quash may be filed.

Commission Response
    The Commission notes that the commenters seem to be conflating 
objections and motions to quash. As stated in Rule 45 of the Federal 
Rules of Civil Procedure, motions to quash are generally allowed only 
in specific circumstances. See FRCP 45(d)(3). The Federal Rules do not 
apply such strictures on the filing of objections to a subpoena. 
Rather, when a subpoenaed entity files an objection, the burden shifts 
to the requesting party, requiring the requester to file a motion to 
compel after notifying the subpoenaed entity. See FRCP 45(d)(2)(B). It 
is this precise burden shifting the Commission intended to capture with 
the proposed rule. Objections and motions to quash are generally 
intended to be mutually exclusive procedures though there may 
occasionally be overlap in how they are utilized. The Commission 
therefore disagrees with Adduci's assumption that motions to quash may 
be filed only after the failure of negotiations following an objection 
pursuant to proposed rule 210.32(d)(1).
    The IPOA's assumption that motions to limit were intended to be 
subsumed into the new objections process is partially correct. The 
Commission's purpose is to align the Commission's practice to Rule 45, 
which requires the requesting party to prove that information it seeks 
from the subpoenaed party is relevant and not burdensome.
    In keeping with the Federal rules, the Commission has determined to 
clarify proposed rule 210.32(d)(2) to require, akin to current rule 
210.33(a), which addresses motions to compel, that after an objection 
is made and negotiations fail, the requesting party must provide notice 
before seeking judicial enforcement. With respect to the requirement 
that administrative law judges can extend the time for filing 
objections or motions to quash only for good cause, the Commission 
accepts the solution proposed by the commenters to allow the judges to 
otherwise set the time.
    Based on the above discussion, the Commission has determined to 
adopt the amendments to rule 210.32(d) proposed by the ITCTLA, with the 
addition of the notice language from rule 210.33. That language 
indicates that the requesting party may also move for a request for 
judicial enforcement upon reasonable notice or as provided by the 
administrative law judge. For example, the administrative law judge may 
require that the parties meet and confer prior to the filing of the 
request for judicial enforcement. The Commission does not, however, 
accept the ITCTLA's suggestion that the party or attorney designated in 
the subpoena may agree on the timing of responses without the input and 
approval of the administrative law judge.
    No comments were received concerning proposed rule 210.32(f). The 
Commission therefore adopts proposed rule 210. 32(f) as stated in the 
NPRM with a typographical correction.
Section 210.34
    Section 210.34 provides for the issuance of protective orders and 
for the remedies and sanctions the Commission may impose in the event 
of a breach of a Commission-issued administrative protective order. 
Section 210.34(c)(1) provides that the Commission shall treat the 
identity of any alleged breacher as confidential business information 
unless the Commission determines to issue a public sanction. Section 
210.34(c)(1) also requires the Commission and the administrative law 
judge to allow parties to make submissions concerning these matters. 
The NPRM proposed amending Sec.  210.34(c)(1) to remove the provision 
requiring the Commission or the administrative law judge to allow the 
parties to make written submissions or present oral arguments bearing 
on the issue of violation of a protective order and the appropriate 
sanctions therefor. The Commission and the administrative law judge 
continue to have discretion to permit written submissions or oral 
argument bearing on administrative protective order violations and 
sanctions therefor. In the interest of preserving the confidentiality 
of the process, the Commission has decided that notification of all 
parties in an investigation regarding breach of a protective order may 
be inappropriate in many cases. Submissions from relevant persons will 
be requested as necessary and appropriate.
Comments
    The IPOA supports the Commission and the administrative law judge 
having the discretion to permit parties to make written submissions or 
present oral arguments concerning administrative protective order 
violations. The IPOA contends, however, that it is unclear whether the 
proposed changes will affect the notice of an alleged or actual breach 
provided under current rule 210.34. The IPOA therefore recommends 
leaving current rule 210.34(c)(1) unchanged.
    The ITCWG cautions against implementation of proposed rule 
210.34(c), arguing that the rule and the accompanying comment in the 
NPRM appear inconsistent. Specifically, ITCWG notes, the comment states 
that ``notification of all parties in an investigation regarding breach 
of a protective order may be inappropriate in many cases,'' while the 
proposed rule refers to the initiation of a sanctions inquiry by party 
motion, which presumably must be served on all parties to the 
investigation and filed on EDIS. The ITCWG states that the Commission's 
comment that notice of an alleged administrative protective order 
breach will be provided at its discretion is at odds with the goal 
stated in the Strategic Plan that the Commission wishes to promote 
transparency and understanding in investigative proceedings. The ITCWG 
contends that the proposed rule appears to allow no notice to parties 
who are not directly involved in the alleged breach even though, the 
ITCWG insists, such knowledge could prove valuable in helping better 
secure the aggrieved party's confidential business information going 
forward. The ITCWG argues that the Commission's comment appears to 
suggest the Commission need not notify a party whose confidential 
business information may have been disclosed, presumably if it wasn't 
that party who brought the potential breach to the Commission's 
attention. The ITCWG cautions that, under the proposed rule, there is 
too much uncertainty regarding how much notice

[[Page 21155]]

will be provided and how the process will operate, which could make 
parties reluctant to produce confidential business information in an 
investigation.
    Mr. Chubb states that he agrees with the Commission's proposal to 
remove the mandatory provision from Sec.  210.34(c)(1) that currently 
requires the Commission or the administrative law judge to allow all 
parties to make written submissions or present oral arguments on 
alleged protective order violations and sanctions, regardless of 
whether they are the alleged breacher or compromised party. Mr. Chubb 
notes that the proposed rule provides the Commission with the 
flexibility to accommodate the interest other parties may have in a 
protective order violation dispute and permit participation to an 
appropriate extent.
Commission Response
    The comments from IPOA and the ITCWG reflect some basic differences 
between administrative protective order breach investigations that 
occur before administrative law judges and those that occur before the 
Commission. Breach investigations before administrative law judges may 
be more adversarial in nature, with notice being provided to the 
parties and parties having the opportunity to file submissions. 
Proceedings before the Commission, however, are more limited, with 
information concerning potential breaches provided on a need-to-know 
basis. The comments appear to be relevant primarily to proceedings 
before administrative law judges.
    As the preamble to the rule in the NPRM states, the proposed rule 
recognizes that notification of all parties regarding a breach 
investigation may not be appropriate in many cases, in particular, 
those initiated before the Commission. The proposed amendment, which 
removes the provision requiring the Commission or the administrative 
law judge to allow the parties to make written submissions or present 
oral arguments bearing on the issue of violation of a protective order 
and the appropriate sanctions, does not affect the ability of 
administrative law judges, or the Commission when deemed appropriate, 
to request such briefing.
    ITCWG raises the concern that the proposed rule suggests the 
Commission need not notify a party whose confidential business 
information may have been breached if that party did not notify the 
Commission of the potential breach. The Commission is concerned with 
preserving the confidentiality of the alleged breacher when an 
investigation into a potential breach of an administrative protective 
order is initiated before the Commission. The Commission does not 
currently notify parties not directly involved in the alleged breach. 
However, in most situations, it is the owner of the confidential 
information who brings the need for an investigation to the 
Commission's attention. Moreover, under Sec.  210.34(b), which remains 
unchanged, the alleged breacher is required to notify the submitter of 
the confidential information.
    The Commission has therefore determined to adopt proposed rule 
210.34 as stated in the NPRM.
Section 210.42
    Section 210.42 provides for the issuance of initial determinations 
by the presiding administrative law judge concerning specific issues, 
including violation of section 337 under Sec.  210.42(a)(1)(i), on 
motions to declassify information under Sec.  210.42(a)(2), on issues 
concerning temporary relief or forfeiture of temporary relief bonds 
under Sec.  210.42(b), or on other matters as specified in Sec.  
210.42(c).
    The NPRM proposed adding Sec.  210.42(a)(3), authorizing the 
presiding administrative law judge to issue an initial determination 
ruling on a potentially dispositive issue in accordance with a 
Commission order under new Sec.  210.10(b)(3). In addition, the 
proposed rule would require the administrative law judge to certify the 
record to the Commission and issue the initial determination within 100 
days of institution pursuant to 210.10(b)(3). The 100-day period may be 
extended for good cause shown. These changes are intended to provide a 
procedure for the early disposition of potentially dispositive issues 
identified by the Commission at institution of an investigation. This 
procedure is not intended to affect summary determination practice 
under Sec.  210.18 whereby the administrative law judge may dispose of 
one or more issues in the investigation when there is no genuine issue 
as to material facts and the moving party is entitled to summary 
determination as a matter of law. Rather, this procedure differs from a 
summary determination proceeding in that the administrative law judge's 
ruling pursuant to this section is made following an evidentiary 
hearing.
    The NPRM also proposed adding Sec.  210.42(c)(3), authorizing the 
presiding administrative law judge to issue an initial determination 
severing an investigation into two or more investigations pursuant to 
new Sec.  210.14(h).
    In addition, Sec.  210.42(e) provides that the Commission shall 
notify certain agencies of each initial determination granting a motion 
for termination of an investigation in whole or part on the basis of a 
consent order or settlement, licensing, or other agreement pursuant to 
Sec.  210.21, and notice of such other initial determinations as the 
Commission may order. Those agencies include the U.S. Department of 
Health and Human Services, the U.S. Department of Justice, the Federal 
Trade Commission, the U.S. Customs Service (now U.S. Customs and Border 
Protection), and such other departments and agencies as the Commission 
deems appropriate. The rule further states that the indicated agencies 
have 10 days after service of any such initial determinations to submit 
comments. Currently, the Commission effects such notice through various 
electronic means, including posting a public version of the initial 
determination on its website so that paper service is unnecessary. The 
NPRM proposed amending Sec.  210.42(e) to remove the explicit 
requirement that the Commission otherwise provide any specific notice 
of or directly serve any initial determinations concerning terminations 
under Sec.  210.21 on the listed agencies. This change is intended to 
conserve Commission resources and does not relieve the Commission of 
its obligation under section 337(b)(2) to consult with and seek advice 
and information from the indicated agencies as the Commission considers 
appropriate during the course of a section 337 investigation. The 
Commission has consulted with the agencies in question and they have 
not requested that the Commission provide direct notice beyond its 
current practice.
Section 210.42(a)(3)
Comments
    The IPOA, in accordance with its recommendation not to implement 
proposed rules 210.14(i) or 210.22, suggests the following amended 
language for proposed Sec.  210.42(a)(3):

    The administrative law judge shall issue an initial 
determination ruling on a potentially dispositive issue in 
accordance with a Commission order pursuant to Sec.  210.10(b)(3) 
[or an administrative law judge's order issued pursuant to Sec.  
210.14(i) or Sec.  210.22]. The administrative law judge shall 
certify the record to the Commission and shall file an initial 
determination ruling on the potentially dispositive issue designated 
pursuant to Sec.  210.42(a)(3)(i) within 100 days, or as extended 
for good cause shown, of when the issue is designated by the 
Commission pursuant to Sec.  210.10(b)(3) [or by the administrative 
law judge pursuant to Sec.  210.14(i) or Sec.  210.22].


[[Page 21156]]


    The IPOA also argues that the proposed rules provide no deadline 
for the Commission to determine whether to issue its own determination 
on a 100-day proceeding or to determine whether to review the 
administrative law judge's 100-day initial determination. The IPOA 
proposes to add a paragraph (h)(7) to Sec.  210.42(h):

    An initial determination filed pursuant to Sec.  210.42(a)(3) 
shall become the determination of the Commission 30 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.

    Mr. Chubb notes the Commission's statement in the NPRM that 
proposed rule 210.42(a)(3) is not intended to affect summary 
determination practice. Mr. Chubb suggests the Commission confirm that 
motions for summary determination on any potentially dispositive issue 
that is the subject of a 100-day proceeding are still permitted, but 
that such motions should not become a basis for extending such 
proceedings beyond the 100 days.
Commission Response
    The Commission has determined that clarification is needed 
regarding when an initial determination pursuant to proposed rule 
210.42(a)(3) would become the Commission's final determination. Section 
210.42(h) concerns the timing of when an initial determination shall 
become the determination of the Commission absent review. Proposed rule 
210.43(d)(1) (as discussed below) states that the Commission has 30 
days to determine whether to review an initial determination concerning 
a dispositive issue. As such, the Commission adopts the IPOA's proposed 
addition of Sec.  210.42(h)(7) to specify that an initial determination 
issued pursuant to proposed rule 210.42(a)(3) will become the 
Commission's final determination within 30 days after service of the 
initial determination, absent review.
    Regarding Mr. Chubb's comment, the Commission does not intend the 
100-day procedure to affect summary determination practice during the 
course of a regular investigation. Therefore there is no need to change 
the current procedure for summary determinations as provided in Sec.  
210.18.
    Because the Commission has determined not to implement proposed 
rule 210.14(i) allowing administrative law judges to designate 
potentially dispositive issues, the Commission has determined to remove 
all references to proposed rule 210.14(i) in the final version of rule 
210.42(a)(3). As noted above, the Commission has also determined to add 
rule 210.42(h)(7) to specify that an initial determination issued 
pursuant to proposed rule 210.42(a)(3) will become the Commission's 
final determination within 30 days after service of the initial 
determination, absent review.
Section 210.42(c)(3)
    With respect to proposed rule 210.14(h) regarding severance of 
investigations by administrative law judges, the ITCTLA recommends the 
Commission authorize judges to act by order rather than initial 
determination, rendering proposed rule 210.42(c)(3) unnecessary. Mr. 
Chubb, on the other hand, argues that a decision to sever should be in 
the form of an initial determination.
    As stated above, the Commission has determined to allow 
administrative law judges to sever investigations by order. 
Accordingly, the Commission has determined not to adopt proposed rule 
210.42(c)(3).
Section 210.42(e)
    No comments concerning the proposed amendments to rule 210.42(e) 
were received. The Commission has therefore determined to adopt 
proposed rule 210.42(e) as stated in the NPRM.
Section 210.43
    Section 210.43 provides for the process by which a party may 
request, and the Commission may consider, petitions for review of 
initial determinations on matters other than temporary relief. In 
particular, Sec.  210.43(a)(1) specifies when parties must file 
petitions for review based on the nature of the initial determination, 
and Sec.  210.43(c) specifies when parties must file responses to any 
petitions for review. The NPRM proposed amending Sec.  210.43(a)(1) to 
specify when parties must file petitions for review of an initial 
determination ruling on a potentially dispositive issue pursuant to new 
Sec.  210.42(a)(3). The NPRM further proposed amending Sec.  210.43(c) 
to specify when the parties must file responses to any such petitions 
for review. Under the proposed rule, parties are required to file a 
petition for review within five calendar days after service of the 
initial determination and any responses to the petitions within three 
business days after service of a petition.
    Section 210.43(d)(1) provides for the length of time the Commission 
has after service of an initial determination to determine whether to 
review the initial determination. The NPRM proposed amending Sec.  
210.43(d)(1) to specify that the Commission must determine whether to 
review initial determinations on potentially dispositive issues 
pursuant to new Sec.  210.42(a)(3) within 30 days of service of the 
initial determination.
    In addition, Sec.  210.43(d)(3) provides that, if the Commission 
determines to grant a petition for review, in whole or in part, and 
solicits written submissions on the issues of remedy, the public 
interest, and bonding, the Secretary of the Commission shall serve the 
notice of review on all parties, the U.S. Department of Health and 
Human Services, the U.S. Department of Justice, the Federal Trade 
Commission, the U.S. Customs Service (now U.S. Customs and Border 
Protection), and such other departments and agencies as the Commission 
deems appropriate. Currently, the Commission effects such notice 
through various electronic means, including posting a public version of 
the notice on its website such that paper service is unnecessary. The 
NPRM proposed amending Sec.  210.43(d)(3) to remove the explicit 
requirement that the Commission provide by way of direct service any 
such notice to the indicated agencies, thus conserving Commission 
resources. This change is intended to conserve Commission resources and 
does not relieve the Commission of its obligation under section 
337(b)(2) to consult with and seek advice and information from the 
indicated agencies as the Commission considers appropriate during the 
course of a section 337 investigation.
Comments
    The CCCME cautions that the time limits for filing petitions for 
review and petition responses under the proposed rule are too short for 
foreign parties. The CCCME recommends allowing seven calendar days for 
petitions for review and five business days for petition responses.
    Adduci notes that Sec.  201.14 states that, for any deadline less 
than seven days, intermediate Saturdays, Sundays, and Federal legal 
holidays are excluded, effectively transforming a five calendar day 
deadline into a five business day deadline. Adduci therefore suggests 
the Commission modify proposed rule 210.42(a)(3) to require parties to 
file petitions for review of initial determinations pursuant to 
proposed rule 210.42(a)(3) within five business days, rather than five 
calendar days, thus bringing the proposed rule into conformity with the 
requirements of Sec.  201.14.
    The ITCWG states that it does not support the proposed changes to 
rule

[[Page 21157]]

210.43(d)(3) that would change the method by which the Commission is 
required to provide notice of a grant of petition for review to the 
designated agencies. The ITCWG states that it does not believe the 
conservation of Commission resources by foregoing actual service in 
lieu of merely posting notice of the grant on the Commission's website 
outweighs the burden placed on other agencies to monitor the 
Commission's website for relevant notices for which they may wish to 
provide comment.
Commission Response
    With respect to proposed rule 210.43(a)(1), Adduci suggests that 
the rule should require that petitions for review of an initial 
determination ruling on a potentially dispositive issue be filed within 
five business days after service of the initial determination. CCCME 
argues that the proposed time, i.e. five calendar days, is too short 
for foreign parties. Adduci's suggestion increases the time for filing 
to include any subsumed weekends, thus addressing CCCME's concern. The 
Commission therefore has determined to amend proposed rule 210.43(a)(1) 
in accordance with this suggestion.
    Concerning proposed rule 210.43(c), the CCCME again argues that the 
proposed time for responding to such a petition, i.e., three business 
days, is too short for foreign parties. The Commission agrees and has 
determined that responses to petitions for review of initial 
determinations issued under new rule 210.42(a)(3) are due within five 
(5) business days of service of such petitions. The Commission 
therefore has determined not to adopt the proposed amendments to Sec.  
210.43(c), as the current rule, which states that responses to 
petitions for review of initial determinations other than those issued 
under Sec.  210.42(a)(1) are due within five(5) business days of 
service of such petition, is sufficient to capture this new deadline.
    No comments were received regarding the proposed amendments to 
Sec.  210.43(d)(1). The Commission has therefore determined to adopt 
proposed rule 210.43(d)(1) as stated in the NPRM.
    Regarding proposed rule 210.43(d)(3), the Commission notes that 
this amendment is consistent with similar amendments discussed 
previously in this notice for which no comments were received. The 
Commission has consulted with the agencies in question and they have 
not requested that the Commission provide direct notice beyond its 
current practice. The Commission has therefore determined to adopt 
proposed rule 210.43(d)(3) as stated in the NPRM.
Section 210.47
    Section 210.47 provides the procedure by which a party may petition 
the Commission for reconsideration of a Commission determination. The 
NPRM proposed amending Sec.  210.47 to make explicit the Commission's 
authority to reconsider a determination on its own initiative.
    No comments concerning the proposed amendments to rule 210.47 were 
received. The Commission has therefore determined to adopt proposed 
rule 210.47 as stated in the NPRM.
Section 210.50
    Section 210.50, and in particular Sec.  210.50(a)(4), requires the 
Commission to receive submissions from the parties to an investigation, 
interested persons, and other Government agencies and departments 
considering remedy, bonding, and the public interest. Section 
210.50(a)(4) further requests the parties to submit comments concerning 
the public interest within 30 days of issuance of the presiding 
administrative law judge's recommended determination. It has come to 
the Commission's attention that members of the public are confused as 
to whether Sec.  210.50(a)(4) applies to them since the post-
recommended determination provision is stated immediately after the 
provision requesting comments from ``interested persons.'' The NPRM 
proposed amending Sec.  210.50(a)(4) to clarify that the rule concerns 
post-recommended determination submissions from the parties. Given the 
variability of the dates for issuance of the public version of the 
recommended determinations and the general public's lack of familiarity 
with Commission rules, post-recommended determination submissions from 
the public are solicited via a notice published in the Federal Register 
specifying the due date for such public comments.
    No comments concerning the proposed amendments to rule 210.50 were 
received. The Commission has therefore determined to adopt proposed 
rule 210.50(a)(4) as stated in the NPRM.
Section 210.75
    Section 210.75 provides for the enforcement of remedial orders 
issued by the Commission, including exclusion orders, cease and desist 
orders, and consent orders. Section 210.75(a) provides for informal 
enforcement proceedings, which are not subject to the adjudication 
procedures described in Sec.  210.75(b) for formal enforcement 
proceedings. In Vastfame Camera, Ltd. v. Int'l Trade Comm'n, 386 F.3d 
1108, 1113 (Fed. Cir. 2004), the Federal Circuit stated that the 
Commission's authority to conduct enforcement proceedings stems from 
its original investigative authority under subsection 337(b) and its 
authority to issue temporary relief arises under subsection 337(e). 
Both subsections require that the Commission afford the parties the 
``opportunity for a hearing in conformity with the provisions of 
subchapter II of chapter 5 of title 5.'' Id. at 1114-15. Section 
210.75(a), which provides for informal enforcement proceedings, is 
therefore not in accordance with the Federal Circuit's holding in 
Vastfame. Accordingly, the NPRM proposed deleting Sec.  210.75(a).
    Section 210.75(b) currently provides that the Commission may 
institute a formal enforcement proceeding upon the filing of a 
complaint setting forth alleged violations of any exclusion order, 
cease and desist order, or consent order. The NPRM proposed amending 
Sec.  210.75(b)(1), redesignated as 210.75(a)(1), to provide that the 
Commission shall determine whether to institute the requested 
enforcement proceeding within 30 days of the filing of the enforcement 
complaint, similar to the provisions recited in Sec.  210.10(a), 
barring exceptional circumstances, a request for postponement of 
institution, or withdrawal of the enforcement complaint.
    Moreover, when the Commission has found a violation of an exclusion 
order, the Commission has issued cease and desist orders as 
appropriate. The NPRM proposed amending Sec.  210.75(b)(4), 
redesignated as 210.75(a)(4), to explicitly provide that the Commission 
may issue cease and desist orders pursuant to section 337(f) at the 
conclusion of a formal enforcement proceeding. The proposed rule would 
also amend Sec.  210.75(b)(5), redesignated as 210.75(a)(5), to include 
issuance of new cease and desist orders pursuant to new Sec.  
210.75(a)(4).
Current Sec.  210.75(a)
Comments
    Mr. Chubb questions the Commission's apparent reading of Vastfame 
as prohibiting the Commission from investigating potential violations 
of its remedial orders without engaging in full-blown due process 
adjudications under the Administrative Procedure Act. Mr. Chubb argues 
that such a reading would defy common sense and cripple the 
Commission's ability to carry out its functions. Mr. Chubb contends 
that if only formal enforcement proceedings

[[Page 21158]]

under current Sec.  210.75 were permitted, an unacceptably large 
proportion of potentially violative behavior would go unscrutinized, 
since formal enforcement proceedings would not be appropriate in every 
situation.
    Mr. Chubb suggests that the Commission could remedy any concerns 
that use of the term ``enforcement proceeding'' in current rule 
210.75(a) invokes Vastfame by using a different term such as 
``preliminary investigative activity.'' Mr. Chubb notes that the 
Commission is specifically authorized under Section 603 of the Trade 
Act of 1974, 19 U.S.C. 2482, to engage in such preliminary 
investigations. Mr. Chubb therefore recommends the Commission retain 
Sec.  210.75(a) as a vehicle for informal investigative activity, but 
avoid any concerns about potential conflicts with Vastfame by adopting 
the following revised language:

    Informal investigative activities may be conducted by the 
Commission, including through the Office of Unfair Import 
Investigations, with respect to any act or omission by any person in 
possible violation of any provision of an exclusion order, cease and 
desist order, or consent order. Such matters may be handled by the 
Commission through correspondence or conference or in any other way 
that the Commission deems appropriate. The Commission may issue such 
orders as it deems appropriate to implement and insure compliance 
with the terms of an exclusion order, cease and desist order, or 
consent order, or any part thereof. Any matter not disposed of 
informally may be made the subject of a formal proceeding pursuant 
to this subpart.

Commission Response
    Current section 210.75(a) states that the Commission may issue 
orders as a result of the ``informal enforcement proceedings'' provided 
for in the rule. 19 CFR 210.75(a). However, under Vastfame, the 
Commission's investigation of a violation of remedial orders must be 
considered the same as an investigation under subsection 337(b) of the 
statute. The Commission's authority to issue a remedy for violation of 
remedial orders cannot be altered merely by changing the verbiage used 
to describe the Commission's investigative activity. 19 U.S.C. 2482 
confers authority for conducing preliminary investigations before 
determining whether to institute either an initial investigation or an 
enforcement proceeding. This section of the statute does not provide 
authority for the Commission to conduct investigations that may 
potentially result in the Commission issuing a remedy.
    Based on the above discussion, the Commission has determined to 
adopt the proposed amendment indicated in the NPRM to delete current 
Sec.  210.75(a).
Redesignated Sec.  210.75(a) (currently Sec.  210.75(b)(1))
Comments
    Mr. Chubb notes that the NPRM proposes amending redesignated Sec.  
210.75(a)(1) to impose a 30-day deadline to institute formal 
enforcement proceedings after a complaint for enforcement is filed. Mr. 
Chubb questions the necessity of a rule providing a fixed deadline for 
instituting formal enforcement proceedings since, as he states, the 
Commission has its own incentives, through internal deadlines and its 
Strategic Plan, to expeditiously process enforcement complaints. Mr. 
Chubb notes that the rules do not specify requirements for enforcement 
complaints as comprehensively as they do for violation complaints. 
Accordingly, Mr. Chubb asserts, the Commission may need to conduct more 
of a pre-institution investigation in many cases and seek 
supplementation from the complainant, making a rigid 30-day period 
unworkable. Additionally, Mr. Chubb contends that under the proposed 
30-day rule, the Commission's ability to comply will likely be heavily 
dependent on the Office of Unfair Import Investigations' informal 
review of draft complaints. Mr. Chubb cautions that it is unclear 
whether enforcement complainants will take advantage of the Office of 
Unfair Import Investigations' ability to review draft complaints.
    Moreover, Mr. Chubb warns that the 30-day institution proposal for 
formal enforcement proceedings is unrealistic because it fails to take 
into account the right of an enforcement respondent to respond to an 
enforcement complaint within 15 days of service. Mr. Chubb notes that, 
in instituting violation investigations, the Commission does not have 
to address such responses, which is another factor to consider in 
setting a deadline for institution of enforcement complaints. Mr. Chubb 
therefore suggests that, if the Commission intends to impose a 
regulatory deadline for the institution of formal enforcement 
proceedings, it allow at least 45 or 60 days.
Commission Response
    The Commission acknowledges Mr. Chubb's concerns regarding the 
Commission's ability to meet the 30-day institution goal for 
enforcement proceedings as indicated in proposed rule (as redesignated) 
210.75(a)(1). The Commission, however, has committed itself to abide by 
a 30-day deadline in instituting formal enforcement investigations. 
Moreover, the revised rule allows for extending the deadline in the 
case of exceptional circumstances. The Commission also notes that the 
Office of Unfair Import Investigations does not review enforcement 
complaints. Moreover, enforcement complaints are served after 
institution and so the Commission does not consider responses to the 
complaint during the pre-institution period. 19 CFR 210.75(a)(1) 
formerly 19 CFR 210.75(b)(1).
    No comments were received concerning proposed rules (as 
redesignated) 210.75(a)(4) and (5). The Commission has therefore 
determined to adopt proposed rule (as redesignated) 210.75(a) as stated 
in the NPRM.
Section 210.76
    Section 210.76 provides the method by which a party to a section 
337 investigation may seek modification or rescission of exclusion 
orders, cease and desist orders, and consent orders issued by the 
Commission. The NPRM proposed amending Sec.  210.76(a) to clarify that 
this section is in accordance with section 337(k)(1) and allows any 
person to request the Commission to make a determination that the 
conditions which led to the issuance of a remedial or consent order no 
longer exist. The NPRM also proposed adding Sec.  210.76(a)(3) to 
require that, when the requested modification or rescission is due to a 
settlement agreement, the petition must include copies of the 
agreements, any supplemental agreements, any documents referenced in 
the petition or attached agreements, and a statement that there are no 
other agreements, consistent with rule 210.21(b)(1).
    In addition, Sec.  210.76(b) specifies that the Commission may 
institute such a modification or rescission proceeding by issuing a 
notice. The NPRM proposed amending Sec.  210.76(b) to provide that the 
Commission shall determine whether to institute the requested 
modification or rescission proceeding within 30 days of receiving the 
request, similar to the provisions recited in Sec.  210.10(a), barring 
exceptional circumstances, a request for postponement of institution, 
or withdrawal of the petition for modification or rescission. The 
proposed rule would further clarify that the notice of commencement of 
the modification or rescission proceeding may be amended by leave of 
the Commission. Under some circumstances, such as when settlement 
between the parties is the basis for

[[Page 21159]]

rescission or modification of issued remedial orders, institution and 
disposition of the rescission or modification proceeding may be in a 
single notice.
Comments
    Mr. Chubb asserts the Commission's proposal to adopt a 30-day 
deadline for the institution of modification or rescission proceedings 
suffers from the same infirmities as the Commission's proposal to adopt 
a 30-day deadline for the institution of enforcement proceedings under 
proposed rule 210.75. Mr. Chubb suggests, consistent with his 
recommendations concerning proposed rule 210.75, that the Commission 
reject the proposed amendments to Sec.  210.76 or, in the alternative, 
lengthen the proposed 30-day period to a 45 or 60-day period.
Commission Response
    No comments were received concerning proposed rule 210.76(a). With 
respect to Mr. Chubb's comment, the Commission has committed itself to 
abide by a 30-day deadline in instituting modification or rescission 
proceedings, but the revised rule allows for extending the deadline in 
the case of exceptional circumstances. The Commission has therefore 
determined to adopt proposed rule 210.76 as stated in the NPRM.
Section 210.77
    Section 210.77 provides for the Commission to take temporary 
emergency action pending a formal enforcement proceeding under Sec.  
210.75(b) by immediately and without hearing or notice modify or revoke 
the remedial order under review and, if revoked, to replace the order 
with an appropriate exclusion order. As noted above, the Federal 
Circuit held in Vastfame that an enforcement proceeding requires that 
the parties be afforded an opportunity for a hearing. 386 F.3d at 1114-
15. The procedure set forth in Sec.  210.77 for temporary emergency 
action pending a formal enforcement proceeding, therefore, is not in 
accordance with the Federal Circuit's holding in Vastfame. The proposed 
rule would, accordingly, delete Sec.  210.77.
    No comments concerning the proposed deletion of rule 210.77 were 
received except for Mr. Chubb's, stating his approval of the proposal 
and noting that the provision for ``temporary emergency action'' has 
seldom if ever been used by the Commission and, as noted in the NPRM, 
is of questionable legality in view of Vastfame. The Commission has 
therefore determined to delete rule 210.77 and reserve it for future 
use as stated in the NPRM.
Section 210.79
    Section 210.79 provides that the Commission will, upon request, 
issue advisory opinions concerning whether any person's proposed course 
of action or conduct would violate a Commission remedial order, 
including an exclusion order, cease and desist order, or consent order. 
The NPRM proposed amending Sec.  210.79(a) to provide that any 
responses to requests for advisory opinions shall be filed within 10 
days of service. The NPRM also proposed amending Sec.  210.79(a) to 
provide that the Commission shall institute the advisory proceeding by 
notice, which may be amended by leave of the Commission, and the 
Commission shall determine whether to institute an advisory opinion 
proceeding within 30 days of receiving the request barring exceptional 
circumstances, a request for postponement of institution, or withdrawal 
of the request for an advisory opinion.
Comments
    Mr. Chubb asserts the Commission's proposal to adopt a 30-day 
deadline for the institution of advisory opinion proceedings suffers 
from the same infirmities as the Commission's proposal to adopt a 30-
day deadline for the institution of enforcement proceedings under 
proposed rule 210.75. Mr. Chubb suggests, consistent with his 
recommendations concerning proposed rule 210.75, that the Commission 
reject the proposed amendments to Sec.  210.79 or, in the alternative, 
lengthen the proposed 30-day period to a 45 or 60-day period.
Commission Response
    The Commission again notes that it has committed itself to abide by 
a 30-day deadline in instituting advisory opinion proceedings, but the 
revised rule allows for extending the deadline in the case of 
exceptional circumstances. The Commission has therefore determined to 
adopt proposed rule 210.79 as stated in the NPRM.

List of Subjects

19 CFR Part 201

    Administration practice and procedure, Reporting and record keeping 
requirements.

19 CFR Part 210

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

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

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.

Subpart A--Miscellaneous

0
2. Amend Sec.  201.16 by revising paragraphs (a)(1), (a)(4), and (f) to 
read as follows:


Sec.  201.16  Service of process and other documents.

    (a) * * *
    (1) By mailing, delivering, or serving by electronic means a copy 
of the document to the person to be served, to a member of the 
partnership to be served, to the president, secretary, other executive 
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 before the Commission, by mailing, 
delivering, or serving by electronic means a copy to such attorney; or
* * * * *
    (4) When service is by mail, it is complete upon mailing of the 
document. When service is by an express service, service is complete 
upon submitting the document to the express delivery service or 
depositing it in the appropriate container for pick-up by the express 
delivery service. When service is by electronic means, service is 
complete upon transmission of a notification that the document has been 
placed in an appropriate repository for retrieval by the person, 
organization, representative, or attorney being served, unless the 
Commission is notified that the notification was not received by the 
party served.
* * * * *
    (f) Electronic service by parties. Parties may serve documents by 
electronic means in all matters before the Commission. Parties may 
effect such service on any party, unless that party has, upon notice to 
the Secretary and to all parties, stated that it does not consent to 
electronic service. If electronic service is used, no additional time 
is added to the prescribed period. However, any dispute that arises 
among parties regarding electronic service must

[[Page 21160]]

be resolved by the parties themselves, without the Commission's 
involvement. When a document served by electronic means contains 
confidential business information or business proprietary information 
subject to an administrative protective order, the document must be 
securely stored and transmitted by the serving party in a manner, 
including by means ordered by the presiding administrative law judge, 
that prevents unauthorized access and/or receipt by individuals or 
organizations not authorized to view the specified confidential 
business information.
* * * * *

PART 210--ADJUDICATION AND ENFORCEMENT

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

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

Subpart B--Commencement of Preinstitution Proceedings and 
Investigations

0
4. Amend Sec.  210.10 by adding paragraph (a)(6) and revising paragraph 
(b) read as follows:


Sec.  210.10  Institution of investigation.

    (a) * * *
    (6) The Commission may determine to institute multiple 
investigations based on a single complaint where necessary to allow 
efficient adjudication.
    (b)(1) An investigation shall be instituted by the publication of a 
notice in the Federal Register. The notice will define the scope of the 
investigation in such plain language as to make explicit what accused 
products or category of accused products provided in accordance with 
Sec.  210.12(a)(12) will be the subject of the investigation, and may 
be amended as provided in Sec.  210.14(b) and (c).
    (2) The Commission may order the administrative law judge to take 
evidence and to issue a recommended determination on the public 
interest based generally on the submissions of the parties and the 
public under Sec.  210.8(b) and (c). If the Commission orders the 
administrative law judge to take evidence with respect to the public 
interest, the administrative law judge will limit public interest 
discovery appropriately, with particular consideration for third 
parties, and will ensure that such discovery will not delay the 
investigation or be used improperly. Public interest issues will not be 
within the scope of discovery unless the administrative law judge is 
specifically ordered by the Commission to take evidence on these 
issues.
    (3) The Commission may order the administrative law judge to issue 
an initial determination within 100 days of institution of an 
investigation as provided in Sec.  210.42(a)(3) ruling on a potentially 
dispositive issue as set forth in the notice of investigation. The 
presiding administrative law judge is authorized, in accordance with 
Sec.  210.36, to hold expedited hearings on any such designated issue 
and also has discretion to stay discovery of any remaining issues 
during the pendency of the 100-day proceeding.
* * * * *

0
5. Amend Sec.  210.11 by revising paragraph (a)(2)(i) to read as 
follows:


Sec.  210.11  Service of complaint and notice of investigation.

    (a) * * *
    (2) * * *
    (i) Copies of the nonconfidential version of the motion for 
temporary relief, the nonconfidential version of the complaint, and the 
notice of investigation upon each respondent; and
* * * * *

Subpart C-- Pleadings

0
6. Amend Sec.  210.12 by adding paragraph (a)(9)(xi) to read as 
follows:


Sec.  210.12  The complaint.

    (a) * * *
    (9) * * *
    (xi) The expiration date of each patent asserted.
* * * * *

0
7. Amend Sec.  210.14 by adding paragraph (h) to read as follows:


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

* * * * *
    (h) Severance of investigation. The administrative law judge may 
determine to sever an investigation into two or more investigations at 
any time prior to or upon thirty days from institution, based upon 
either a motion by any party or upon the administrative law judge's own 
judgment that severance is necessary to allow efficient adjudication. 
The administrative law judge's decision will be in the form of an 
order. The newly severed investigation(s) shall remain with the same 
presiding administrative law judge unless reassigned at the discretion 
of the chief administrative law judge. The severed investigation(s) 
will be designated with new investigation numbers.

Subpart D--Motions

0
8. Amend Sec.  210.15 by revising paragraph (a)(2) to read as follows:


Sec.  210.15  Motions.

    (a) * * *
    (2) When an investigation or related proceeding is before the 
Commission, all motions shall be addressed to the Chairman of the 
Commission. All such motions shall be filed with the Secretary and 
shall be served upon each party. Motions may not be filed with the 
Commission during preinstitution proceedings except for motions for 
temporary relief pursuant to Sec.  210.53.
* * * * *

0
9. Amend Sec.  210.19 by revising the first sentence to read as 
follows:


Sec.  210.19  Intervention.

    Any person desiring to intervene in an investigation or a related 
proceeding under this part shall make a written motion after 
institution of the investigation or related proceeding. * * *

0
10. Amend section 210.21 by
0
a. Revising paragraph (b)(2);
0
b. Removing paragraph (c)(2)(i);
0
c. Redesignating paragraph (c)(2)(ii) as paragraph (c)(2) and revising 
it;
0
d. Revising paragraph (c)(3)(ii)(A);
0
e. Revising paragraph (c)(4)(viii);
0
f. Revising paragraph (c)(4)(x)
0
g. Redesignating paragraph (c)(4)(xi) as (c)(4)(xii); and
0
h. Adding a new paragraph (c)(4)(xi)
    The revisions and additions read as follows:


Sec.  210.21  Termination of investigations.

* * * * *
    (b) * * *
    (2) The motion and agreement(s) shall be certified by the 
administrative law judge to the Commission with an initial 
determination if the motion for termination is granted. If the 
licensing or other agreement or the initial determination contains 
confidential business information, copies of the agreement and initial 
determination with confidential business information deleted shall be 
certified to the Commission simultaneously with the confidential 
versions of such documents. If the Commission's final disposition of 
the initial determination results in termination of the investigation 
in its entirety, a notice will be published in the Federal Register. 
Termination by settlement need not constitute a determination as to 
violation of section 337 of the Tariff Act of 1930.
    (c) * * *
    (2) Commission disposition of consent order. The Commission, after

[[Page 21161]]

considering the effect of the settlement by consent order upon the 
public health and welfare, competitive conditions in the U.S. economy, 
the production of like or directly competitive articles in the United 
States, and U.S. consumers, shall dispose of the initial determination 
according to the procedures of Sec. Sec.  210.42 through 210.45. If the 
Commission's final disposition of the initial determination results in 
termination of the investigation in its entirety, a notice will be 
published in the Federal Register. Termination by consent order need 
not constitute a determination as to violation of section 337. Should 
the Commission reverse the initial determination, the parties are in no 
way bound by their proposal in later actions before the Commission.
    (3) * * *
    (ii) * * *
    (A) A statement that if any asserted patent claim, copyright, 
trademark, mask work, boat hull design, or unfair trade practice claim 
has expired or is held invalid or unenforceable by a court or agency of 
competent jurisdiction or if any article 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 expired, invalid, or unenforceable claim or as to any adjudicated 
article;
* * * * *
    (4) * * *
    (viii) 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 any asserted patent claims, copyright, trademark, 
mask work, boat hull design, or unfair trade practice claim in any 
administrative or judicial proceeding to enforce the Consent Order;
* * * * *
    (x) A statement that if any asserted patent claim, copyright, 
trademark, mask work, boat hull design, or unfair trade practice claim 
is held invalid or unenforceable by a court or agency of competent 
jurisdiction or if any article 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 or adjudicated article;
    (xi) An admission of all jurisdictional facts; and
* * * * *

0
11. Amend Sec.  210.25 by revising the first sentence of paragraph 
(a)(1) and paragraph (a)(2) to read as follows:


Sec.  210.25  Sanctions.

    (a)(1) Any party may file a motion for sanctions for abuse of 
process under 210.4(d)(1), abuse of discovery under Sec.  210.27(g)(3), 
failure to make or cooperate in discovery under Sec.  210.33(b) or (c), 
or violation of a protective order under Sec.  210.34(c). * * *
    (2) The administrative law judge (when the investigation or related 
proceeding is before the administrative law judge) or the Commission 
(when the investigation or related proceeding is before it) also may 
raise the sanctions issue sua sponte. (See also Sec. Sec.  
210.4(d)(1)(ii), 210.27(g)(3), 210.33(c), and 210.34(c).)
* * * * *

Subpart E--Discovery and Compulsory Process

0
12. Amend Sec.  210.27 by adding paragraph (e)(5) and in paragraph 
(g)(3), by removing the phrase ``If without substantial justification a 
request, response, or objection is certified in violation of paragraph 
(d)(2) of this section'' and adding in its place ``If without 
substantial justification a request, response, or objection is 
certified in violation of paragraph (g)(2) of this section,''.
    The addition reads as follows:


Sec.  210.27  General provisions governing discovery.

* * * * *
    (e) * * *
    (5)(i) The provisions of Sec.  210.27(e)(1) through (4) protect 
drafts of expert reports, regardless of the form in which the draft is 
recorded.
    (ii) The provisions of Sec.  210.27(e)(1) through (4) protect 
communications between the party's attorney and expert witnesses 
concerning trial preparation, regardless of the form of the 
communications, except to the extent that the communications:
    (A) Relate to compensation for the expert's study or testimony;
    (B) Identify facts or data that the party's attorney provided and 
that the expert considered in forming the opinions to be expressed; or
    (iii) Identify assumptions that the party's attorney provided and 
that the expert relied on in forming the opinions to be expressed.
* * * * *

0
13. Amend Sec.  210.28 by revising paragraph (h)(3)(v) and adding 
paragraph (h)(3)(vi) to read as follows:


Sec.  210.28  Depositions.

* * * * *
    (h) * * *
    (3) * * *
    (v) Upon application and notice, that such exceptional 
circumstances exist as to make it desirable in the interest of justice 
and with due regard to the importance of presenting the oral testimony 
of witnesses at a hearing, to allow the deposition to be used; or
    (vi) Upon agreement of the parties and within the administrative 
law judge's discretion, the use of designated deposition testimony in 
lieu of live witness testimony absent the circumstances otherwise 
enumerated in this paragraph is permitted.
* * * * *

0
14. Amend Sec.  210.32 by revising paragraphs (d) and (f)(1) to read as 
follows:


Sec.  210.32  Subpoenas.

* * * * *
    (d) Objections and motions to quash. (1) Any objection to a 
subpoena shall be served in writing on the party or attorney designated 
in the subpoena within the later of 10 days after receipt of the 
subpoena or within such time as the administrative law judge may allow. 
If an objection is made, the party that requested the subpoena may move 
for a request for judicial enforcement upon reasonable notice to other 
parties or as otherwise provided by the administrative law judge who 
issued the subpoena.
    (2) Any motion to quash a subpoena shall be filed within the later 
of 10 days after receipt of the subpoena or within such time as the 
administrative law judge may allow.
* * * * *
    (f) * * *
    (1) Deponents and witnesses. Any person compelled to appear in 
person to depose or testify in response to a subpoena shall be paid the 
same fees and mileage as are paid to witnesses with respect to 
proceedings in the courts of the United States; provided, that salaried 
employees of the United States summoned to depose or testify as to 
matters related to their public employment, irrespective of the party 
at whose instance they are summoned, shall be paid in accordance with 
the applicable Federal regulations.
* * * * *

0
15. Amend Sec.  210.34 by revising paragraph (c)(1) to read as follows:


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

* * * * *
    (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

[[Page 21162]]

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 and the administrative law judge may permit the 
parties to file written submissions or present oral argument on the 
issues of the alleged violation of the protective order and sanctions.
* * * * *

Subpart G--Determinations and Actions Taken

0
16. Amend Sec.  210.42 by adding paragraph (a)(3), revising paragraph 
(e), and adding paragraph (h)(7) to read as follows:


Sec.  210.42  Initial determinations.

    (a) * * *
    (3) On potentially dispositive issues. The administrative law judge 
shall issue an initial determination ruling on a potentially 
dispositive issue in accordance with a Commission order pursuant to 
Sec.  210.10(b)(3). The administrative law judge shall certify the 
record to the Commission and shall file an initial determination ruling 
on the potentially dispositive issue designated pursuant to Sec.  
210.10(b)(3) within 100 days of institution, or as extended for good 
cause shown.
* * * * *
    (e) Notice to and advice from other departments and agencies. 
Notice of such initial determinations as the Commission may order shall 
be provided to the U.S. Department of Health and Human Services, the 
U.S. Department of Justice, the Federal Trade Commission, U.S. Customs 
and Border Protection, and such other departments and agencies as the 
Commission deems appropriate by posting of such notice on the 
Commission's website. The Commission shall consider comments, limited 
to issues raised by the record, the initial determination, and the 
petitions for review, received from such agencies when deciding whether 
to initiate review or the scope of review. The Commission shall allow 
such agencies 10 days after the posting of such notice of an initial 
determination on the Commission's website to submit their comments.
* * * * *
    (h) * * *
    (7) An initial determination filed pursuant to Sec.  210.42(a)(3) 
shall become the determination of the Commission 30 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.
* * * * *

0
17. Amend Sec.  210.43 by revising paragraphs (a)(1) and (d)(1) and (3) 
to 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), or 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(a)(1) must be filed within 12 
days after service of the initial determination. A petition for review 
of an initial determination issued under Sec.  210.42(a)(3) must be 
filed within five (5) business days after service of the initial 
determination. 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. 
Petitions for review of all other initial determinations under Sec.  
210.42(c) must be filed within five (5) business days after service of 
the initial determination. A petition for review of an initial 
determination issued under Sec.  210.50(d)(3) or Sec.  210.70(c) must 
be filed within 10 days after service of the initial determination.
    (d) * * *
    (1) The Commission shall decide whether to grant, in whole or in 
part, a petition for review of an initial determination filed pursuant 
to Sec.  210.42(a)(2) or Sec.  210.42(c), which grants a motion for 
summary determination that would terminate the investigation in its 
entirety if it becomes the final determination of the Commission, Sec.  
210.50(d)(3), or Sec.  210.70(c) within 45 days after the service of 
the initial determination on the parties, or by such other time as the 
Commission may order. The Commission shall decide whether to grant, in 
whole or in part, a petition for review of an initial determination 
filed pursuant to Sec.  210.42(a)(3) within 30 days after the service 
of the initial determination on the parties, or by such other time as 
the Commission may order. The Commission shall decide whether to grant, 
in whole or in part, a petition for review of an initial determination 
filed pursuant to Sec.  210.42(c), except as noted above, within 30 
days after the service of the initial determination on the parties, or 
by such other time as the Commission may order.
* * * * *
    (3) The Commission shall grant a petition for review and order 
review of an initial determination or certain issues therein when at 
least one of the participating Commissioners votes for ordering review. 
In its notice, the Commission shall establish the scope of the review 
and the issues that will be considered and make provisions for filing 
of briefs and oral argument if deemed appropriate by the Commission.

0
18. Amend Sec.  210.47 by adding a sentence after the third sentence 
and revising the last sentence to read as follows:


Sec.  210.47  Petitions for reconsideration.

    * * * Any party desiring to oppose such a petition shall file an 
answer thereto within five days after service of the petition upon such 
party. The Commission on its own initiative may order reconsideration 
of a Commission determination or any action ordered to be taken 
thereunder. The filing of a petition for reconsideration shall not stay 
the effective date of the determination or action ordered to be taken 
thereunder or toll the running of any statutory time period affecting 
such determination or action ordered to be taken thereunder unless 
specifically so ordered by the Commission.

0
19. Amend Sec.  210.50 by:
0
a. Revising paragraph (a)(4) introductory text;
0
b. Redesignating paragraph (a)(4)(i) through (iv) as paragraphs 
(a)(4)(ii) through (v); and
0
c. Adding new paragraph (a)(4)(i).
    The revision and addition read as follows:


Sec.  210. 50  Commission action, the public interest, and bonding by 
respondents.

* * * * *
    (a) * * *
    (4) Receive submissions from the parties, interested persons, and 
other Government agencies and departments with respect to the subject 
matter of paragraphs (a)(1) through (3) of this section.

[[Page 21163]]

    (i) After a recommended determination on remedy is issued by the 
presiding administrative law judge, the parties may submit to the 
Commission, within 30 days from service of the recommended 
determination, information relating to the public interest, including 
any updates to the information supplied under Sec. Sec.  210.8(b) and 
(c) and 210.14(f). Submissions by the parties in response to the 
recommended determination are limited to 5 pages, inclusive of 
attachments. This provision does not apply to the public. Dates for 
submissions from the public are announced in the Federal Register.
* * * * *

Subpart I--Enforcement Procedures and Advisory Opinions

0
20. Amend Sec.  210.75 by:
0
a. Removing paragraph (a);
0
b. Redesignating paragraph (b) as paragraph (a) and:
0
i. Adding paragraphs (a)(1)(i) through (iv);
0
ii. Adding paragraph (a)(4)(iv);
0
iii. Revising newly redesignated paragraph (a)(5); and
0
c. Redesignating paragraph (c) as paragraph (b).
    The additions and revisions read as follows:


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

    (a) * * *
    (1) * * *
    (i) The determination of whether to institute shall be made within 
30 days after the complaint is filed, unless--
    (A) Exceptional circumstances preclude adherence to a 30-day 
deadline;
    (B) The filing party requests that the Commission postpone the 
determination on whether to institute an investigation; or
    (C) The filing party withdraws the complaint.
    (ii) If exceptional circumstances preclude Commission adherence to 
the 30-day deadline for determining whether to institute an 
investigation on the basis of the complaint, the determination will be 
made as soon after that deadline as possible.
    (iii) If the filing party desires to have the Commission postpone 
making a determination on whether to institute an investigation in 
response to the complaint, the filing party must file a written request 
with the Secretary. If the request is granted, the determination will 
be rescheduled for whatever date is appropriate in light of the facts.
    (iv) The filing party may withdraw the complaint as a matter of 
right at any time before the Commission votes on whether to institute 
an enforcement proceeding. To effect such withdrawal, the filing party 
must file a written notice with the Commission.
* * * * *
    (4) * * *
    (iv) Issue a new cease and desist order as necessary to prevent the 
unfair practices that were the basis for originally issuing the cease 
and desist order, consent order, and/or exclusion order subject to the 
enforcement proceeding.
    (5) Prior to effecting any issuance, modification, revocation, or 
exclusion under this section, the Commission shall consider the effect 
of such action upon the public health and welfare, competitive 
conditions in the U.S. economy, the production of like or directly 
competitive articles in the United States, and U.S. consumers.
* * * * *

0
21. Amend Sec.  210.76 by:
0
a. Revising the section heading;
0
b. Revising paragraph (a)(1);
0
c. Adding paragraph (a)(3); and
0
d. Adding paragraphs (b)(1) through (5).
    The revisions and additions read as follows:


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

    (a) Petitions for modification or rescission of exclusion orders, 
cease and desist orders, and consent orders. (1) Whenever any person 
believes that changed conditions of fact or law, or the public 
interest, require that an exclusion order, cease and desist order, or 
consent order be modified or set aside, in whole or in part, such 
person may request, pursuant to section 337(k)(1) of the Tariff Act of 
1930, that the Commission make a determination that the conditions 
which led to the issuance of an exclusion order, cease and desist 
order, or consent order no longer exist. The Commission may also on its 
own initiative consider such action. The request shall state the 
changes desired and the changed circumstances or public interest 
warranting such action, shall include materials and argument in support 
thereof, and shall be served on all parties to the investigation in 
which the exclusion order, cease and desist order, or consent order was 
issued. Any person may file an opposition to the petition within 10 
days of service of the petition. If the Commission makes such a 
determination, it shall notify the Secretary of the Treasury and U.S. 
Custom and Border Protection.
* * * * *
    (3) If the petition requests modification or rescission of an order 
issued pursuant to section 337(d), (e), (f), (g), or (i) of the Tariff 
Act of 1930 on the basis of a licensing or other settlement agreement, 
the petition shall contain copies of the licensing or other settlement 
agreements, any supplemental agreements, any documents referenced in 
the petition or attached 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. On motion for good cause shown, the administrative law judge or 
the Commission may limit the service of the agreements to the settling 
parties and the Commission investigative attorney.
    (b) * * *
    (1) The determination of whether to institute shall be made within 
30 days after the petition is filed, unless--
    (i) Exceptional circumstances preclude adherence to a 30-day 
deadline;
    (ii) The petitioner requests that the Commission postpone the 
determination on whether to institute a modification or rescission 
proceeding; or
    (iii) The petitioner withdraws the petition.
    (2) If exceptional circumstances preclude Commission adherence to 
the 30-day deadline for determining whether to institute a modification 
or rescission proceeding on the basis of the petition, the 
determination will be made as soon after that deadline as possible.
    (3) If the petitioner desires to have the Commission postpone 
making a determination on whether to institute a modification or 
rescission proceeding in response to the petition, the petitioner must 
file a written request with the Secretary. If the request is granted, 
the determination will be rescheduled for a date that is appropriate in 
light of the facts.
    (4) The petitioner may withdraw the complaint as a matter of right 
at any time before the Commission votes on whether to institute a 
modification or rescission proceeding. To effect such withdrawal, the 
petitioner must file a written notice with the Commission.
    (5) The Commission shall institute a modification or rescission 
proceeding

[[Page 21164]]

by publication of a notice in the Federal Register. The notice will 
define the scope of the modification or rescission proceeding and may 
be amended by leave of the Commission.
* * * * *


Sec.  210.77   [Removed and Reserved]

0
22. Remove and reserve Sec.  210.77.

0
23. Amend Sec.  210.79 by revising paragraph (a) to read as follows:


Sec.  210.79  Advisory opinions.

    (a) Advisory opinions. Upon request of any person, the Commission 
may, upon such investigation as it deems necessary, issue an advisory 
opinion as to whether any person's proposed course of action or conduct 
would violate a Commission exclusion order, cease and desist order, or 
consent order. Any responses to a request for an advisory opinion shall 
be filed within 10 days of service of the request. The Commission will 
consider whether the issuance of such an advisory opinion would 
facilitate the enforcement of section 337 of the Tariff Act of 1930, 
would be in the public interest, and would benefit consumers and 
competitive conditions in the United States, and whether the person has 
a compelling business need for the advice and has framed his request as 
fully and accurately as possible. Advisory opinion proceedings are not 
subject to sections 554, 555, 556, 557, and 702 of title 5 of the 
United States Code.
    (1) The determination of whether to issue and advisory opinion 
shall be made within 30 days after the petition is filed, unless--
    (i) Exceptional circumstances preclude adherence to a 30-day 
deadline;
    (ii) The requester asks the Commission to postpone the 
determination on whether to institute an advisory proceeding; or
    (iii) The petitioner withdraws the request.
    (2) If exceptional circumstances preclude Commission adherence to 
the 30-day deadline for determining whether to institute an advisory 
proceeding on the basis of the request, the determination will be made 
as soon after that deadline as possible.
    (3) If the requester desires that the Commission postpone making a 
determination on whether to institute an advisory proceeding in 
response to its request, the requester must file a written request with 
the Secretary. If the request is granted, the determination will be 
rescheduled for whatever date is appropriate in light of the facts.
    (4) The requester may withdraw the request as a matter of right at 
any time before the Commission votes on whether to institute an 
advisory proceeding. To effect such withdrawal, the requester must file 
a written notice with the Commission.
    (5) The Commission shall institute an advisory proceeding by 
publication of a notice in the Federal Register. The notice will define 
the scope of the advisory opinion and may be amended by leave of the 
Commission.
* * * * *

    By order of the Commission.
    Issued: April 26, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-09268 Filed 5-3-18; 4:15 pm]
BILLING CODE 7020-02-P