83_FR_21229 83 FR 21140 - Rules of General Application, Adjudication and Enforcement

83 FR 21140 - Rules of General Application, Adjudication and Enforcement

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 83, Issue 89 (May 8, 2018)

Page Range21140-21164
FR Document2018-09268

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.

Federal Register, Volume 83 Issue 89 (Tuesday, May 8, 2018)
[Federal Register Volume 83, Number 89 (Tuesday, May 8, 2018)]
[Rules and Regulations]
[Pages 21140-21164]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09268]



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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

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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.

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    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):


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    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

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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



                                               21140                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

                                               INTERNATIONAL TRADE                                     Commission’s rules, and to address                    of a federalism summary impact
                                               COMMISSION                                              concerns that have arisen in                          statement pursuant to Executive Order
                                                                                                       Commission practice. Consistent with                  13132 (64 FR 43255, August 10, 1999).
                                               19 CFR Parts 201 and 210                                its ordinary practice, the Commission                   No actions are necessary under title II
                                                                                                       invited the public to comment on all the              of the Unfunded Mandates Reform Act
                                               Rules of General Application,                           proposed rules amendments. This                       of 1995, Public Law 104–4 (2 U.S.C.
                                               Adjudication and Enforcement                            practice entails the following steps: (1)             1531–1538) because the rules will not
                                               AGENCY:  International Trade                            Publication of an NPRM; (2) solicitation              result in the expenditure by state, local,
                                               Commission.                                             of public comments on the proposed                    and tribal governments, in the aggregate,
                                                                                                       amendments; (3) Commission review of                  or by the private sector, of $100,000,000
                                               ACTION: Final rule.
                                                                                                       public comments on the proposed                       or more in any one year (adjusted
                                               SUMMARY:    The United States                           amendments; and (4) publication of                    annually for inflation), and will not
                                               International Trade Commission                          final amendments at least thirty days                 significantly or uniquely affect small
                                               (‘‘Commission’’) amends its Rules of                    prior to their effective date.                        governments.
                                               Practice and Procedure concerning rules                    The NPRM requested public comment                    These rules are not ‘‘major rules’’ as
                                               of general application, adjudication, and               on the proposed rules within 60 days of               defined by section 251 of the Small
                                               enforcement. The amendments are                         publication of the NPRM, i.e., by                     Business Regulatory Enforcement
                                               necessary to make certain technical                     November 23, 2015. The Commission                     Fairness Act of 1996 (5 U.S.C. 801 et
                                               corrections, to clarify certain provisions,             received six sets of comments from                    seq.). Moreover, they are exempt from
                                               to harmonize different parts of the                     organizations or law firms, including                 the reporting requirements of that Act
                                               Commission’s rules, and to address                      one each from the China Chamber of                    because they contain rules of agency
                                               concerns that have arisen in                            Commerce for Import and Export of                     organization, procedure, or practice that
                                               Commission practice. The intended                       Machinery and Electronic Products                     do not substantially affect the rights or
                                               effect of the proposed amendments is to                 (‘‘CCCME’’); the ITC Trial Lawyers                    obligations of non-agency parties.
                                               facilitate compliance with the                          Association (‘‘ITCTLA’’); the Intellectual              These rules do not contain any
                                               Commission’s Rules and improve the                      Property Owners Association (‘‘IPOA’’);
                                                                                                                                                             information collection requirements
                                               administration of agency proceedings.                   the ITC Working Group (‘‘ITCWG’’); the
                                                                                                                                                             subject to the provisions of the
                                                                                                       Law Office of T. Spence Chubb (‘‘Mr.
                                               DATES: Effective June 7, 2018. The rule                                                                       Paperwork Reduction Act (44 U.S.C.
                                                                                                       Chubb’’); and the law firm of Adduci,
                                               amendments as stated herein shall                                                                             3501 et seq.).
                                                                                                       Mastriani, & Schaumberg LLP
                                               apply to investigations instituted
                                                                                                       (‘‘Adduci’’). The ITCWG consists of                   Overview of the Amendments to the
                                               subsequent to the aforementioned date.
                                                                                                       industry participants, including Apple,               Regulations
                                               FOR FURTHER INFORMATION CONTACT:                        Avaya, Broadcom, Cisco, Google,
                                               Megan M. Valentine, Office of the                                                                               The final regulations contain eleven
                                                                                                       Hewlett Packard, Intel, and Oracle                    (11) changes from the proposals in the
                                               General Counsel, United States                          among others.
                                               International Trade Commission,                                                                               NPRM. These changes are summarized
                                                                                                          The Commission has carefully
                                               telephone 202–708–2301. Hearing-                                                                              here.
                                                                                                       considered all comments that it
                                               impaired individuals are advised that                   received. The Commission’s response is                  First, with regard to rule 201.16(f),
                                               information on this matter can be                       provided below in a section-by-section                relating to electronic service by parties,
                                               obtained by contacting the                              analysis. The Commission appreciates                  the Commission has determined that the
                                               Commission’s TDD terminal at 202–                       the time and effort of the commentators               rule should clarify that the
                                               205–1810. General information                           in preparing their submissions.                       administrative law judge may indicate
                                               concerning the Commission may also be                                                                         by order what means are acceptable to
                                               obtained by accessing its internet server               Regulatory Analysis of Amendments to                  ensure the document to be served is
                                               at http://www.usitc.gov.                                the Commission’s Rules                                securely stored and transmitted by the
                                               SUPPLEMENTARY INFORMATION:                                 The Commission has determined that                 serving party in a manner that prevents
                                                                                                       these rules do not meet the criteria                  unauthorized access and/or receipt by
                                               Background                                              described in section 3(f) of Executive                individuals or organizations not
                                                 This rulemaking is an effort to                       Order 12866 (58 FR 51735, October 4,                  authorized to view the specified
                                               improve provisions of the Commission’s                  1993) and thus do not constitute a                    confidential business information.
                                               existing Rules of Practice and                          ‘‘significant regulatory action’’ for                   Second, the Commission has
                                               Procedure. The Commission proposed                      purposes of the Executive Order.                      determined to amend proposed rule
                                               amendments to its rules covering                           The Regulatory Flexibility Act (5                  210.10(a)(6) to remove the stated criteria
                                               investigations under section 337 of the                 U.S.C. 601 et seq.) is inapplicable to this           by which the Commission may
                                               Tariff Act of 1930 (19 U.S.C. 1337), as                 rulemaking because it is not one for                  determine to institute multiple
                                               amended (‘‘section 337’’), in order to                  which a notice of proposed rulemaking                 investigations from a single complaint
                                               increase the efficiency of its section 337              is required under 5 U.S.C. 553(b) or any              and substitute the single consideration
                                               investigations and reduce the burdens                   other statute. Although the Commission                of efficient adjudication.
                                               and costs on the parties and the agency.                chose to publish a notice of proposed                   Third, the Commission has
                                                 The Commission published a notice                     rulemaking, these regulations are                     determined to amend proposed rule
                                               of proposed rulemaking (‘‘NPRM’’) in                    ‘‘agency rules of procedure and                       210.10(b)(1) to clarify that the notice of
                                               the Federal Register at 80 FR 57553–64                  practice,’’ and thus are exempt from the              investigation will define the scope of
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                                               (Sept. 24, 2015), proposing to amend the                notice requirement imposed by 5 U.S.C.                the investigation in plain language so as
                                               Commission’s Rules of Practice and                      553(b). Moreover, these regulatory                    to make explicit what accused products
                                               Procedure concerning rules of general                   amendments are certified as not having                or category of accused products will be
                                               application, adjudication, and                          a significant economic impact on a                    the subject of the investigation in
                                               enforcement to make certain technical                   substantial number of small entities.                 accordance with rule 210.12(a)(12),
                                               corrections, to clarify certain provisions,                These rules do not contain federalism              which governs the contents of the
                                               to harmonize different parts of the                     implications warranting the preparation               complaint.


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                          21141

                                                  Fourth, the Commission has                              Ninth, regarding proposed rule                     Section-by-Section Analysis
                                               determined to amend proposed rule                       210.32(d)(1), the Commission has
                                                                                                                                                             19 CFR Part 201
                                               210.10(b)(3) to clarify that an initial                 determined to amend the proposed rule
                                               determination ruling on a potentially                   to clarify that a party may serve                     Subpart B—Initiation and Conduct of
                                               dispositive issue in a 100-day                          subpoena objections within the later of               Investigations
                                               proceeding is due within 100 days of                    10 days after receipt of the subpoena or              Section 201.16
                                               institution of an investigation so                      within such time as the administrative
                                               designated. The rule is also amended to                 law judge may allow. In addition, the                   Section 201.16 provides the general
                                               clarify that the presiding administrative               proposed rule is amended to clarify that,             provisions for service of process and
                                               law judge is authorized, in accordance                  if an objection is made, the party that               other documents. Section 201.16(a)(1)
                                               with section 210.36, to hold expedited                  requested the subpoena may move for a                 through (3) address allowed methods of
                                               hearings on any such designated issue                   request for judicial enforcement upon                 service by the Commission and
                                               and will also have discretion to stay                   reasonable notice to other parties or as              § 201.16(a)(4) addresses when such
                                               discovery of any remaining issues                       otherwise provided by the                             service is complete. In consideration of
                                               during the pendency of the 100-day                      administrative law judge who issued the               the Commission’s development of the
                                               proceeding.                                             subpoena. Similarly, the Commission                   capability to perfect electronic service,
                                                  Fifth, the Commission has determined                 has determined to amend proposed rule                 the NPRM proposed amending
                                               to amend proposed rule 210.14(h) to                     210.32(d)(2) to clarify that a party may              § 201.16(a)(1) and (4) to provide that the
                                               clarify that an administrative law judge                file a motion to quash a subpoena                     Commission may effect service through
                                               may determine to sever an investigation                 within the later of 10 days after receipt             electronic means. Under the proposed
                                               into two or more investigations at any                  of the subpoena or within such time as                rule, electronic service would be
                                               time prior to or upon thirty days from                  the administrative law judge may allow.               complete upon transmission of a
                                               institution of the investigation. The rule                                                                    notification from the Commission that
                                                                                                          Tenth, regarding proposed rule
                                               will also clarify that severance may be                                                                       the document has been placed in an
                                                                                                       210.42(a)(3), because the Commission
                                               based upon a motion from any party.                                                                           appropriate secure repository for
                                                                                                       has determined not to implement
                                               The administrative law judge’s decision                                                                       retrieval by the person, organization
                                                                                                       proposed rule 210.14(i) allowing
                                               to sever will be in the form of an order.                                                                     representative, or attorney being served,
                                                                                                       administrative law judges to designate
                                               The newly severed investigation(s) shall                                                                      unless the Commission is notified that
                                                                                                       potentially dispositive issues, the
                                               remain with the same presiding                                                                                the notification was not received by the
                                                                                                       Commission has determined to remove
                                               administrative law judge unless the                                                                           party served.
                                                                                                       all references to proposed rule 210.14(i)
                                               severed investigation is reassigned at
                                                                                                       in the final version of rule. In addition,              In addition, § 201.16(f) authorizes
                                               the discretion of the chief
                                                                                                       because the administrative law judges                 parties to serve documents by electronic
                                               administrative law judge. The new
                                                                                                       may sever investigations by order, the                means. The NPRM proposed amending
                                               severed investigation(s) will be
                                                                                                       Commission has determined not to                      § 201.16(f) to require parties serving
                                               designated with a new investigation
                                                                                                       adopt proposed rule 210.42(c)(3). The                 documents by electronic means to
                                               number. The final rule also removes
                                                                                                       Commission has also determined to add                 ensure that any such document
                                               limiting criteria for an administrative
                                                                                                       rule 210.42(h)(7) to specify that an                  containing confidential business
                                               law judge to sever an investigation
                                                                                                       initial determination issued pursuant to              information subject to an administrative
                                               beyond the consideration of efficient
                                                                                                       proposed rule 210.42(a)(3) will become                protective order be securely transmitted,
                                               adjudication.
                                                                                                       the Commission’s final determination                  in addition to being securely stored, to
                                                  Sixth, with regard to proposed rule                                                                        prevent unauthorized access and/or
                                                                                                       30 days after issuance, absent review.
                                               210.14(i), the Commission has                                                                                 receipt by individuals or organizations
                                               determined that administrative law                         Eleventh, regarding the proposed
                                                                                                       amendments to rule 210.43, the                        not authorized to view the specified
                                               judges will not be able to designate                                                                          confidential business information. All
                                               potentially dispositive issues for                      Commission has determined to amend
                                                                                                       proposed rule 210.43(a)(1) to clarify that            documents must currently be filed
                                               inclusion in a 100-day proceeding                                                                             electronically by way of the
                                               following institution of an investigation.              petitions for review of an initial
                                                                                                       determination ruling on a potentially                 Commission’s Electronic Document
                                               Therefore, proposed rule 210.14(i) will                                                                       Information System pursuant to
                                               not appear in the final rules.                          dispositive issue must be filed within
                                                                                                       five business days after service of the               § 201.8(d).
                                                  Seventh, the Commission has
                                               determined to amend proposed rule                       initial determination. The Commission                 201.16(a)(1) and (4)
                                               210.15 to clarify that the rule is                      has also determined to amend proposed
                                                                                                       rule 210.43(c) to clarify that the time for           Comments
                                               intended to prohibit the filing of any
                                               motions before the Commission during                    filing responses to petitions for review                 Adduci generally supports the
                                               preinstitution proceedings except with                  is five business days.                                Commission’s efforts to effect electronic
                                               respect to motions for temporary relief                    A comprehensive explanation of the                 service. Adduci cautions, however, that
                                               filed under rule 210.53.                                rule changes is provided in the section-              allowing electronic service of process or
                                                  Eighth, regarding proposed rule                      by-section analysis below. The section-               documents on unrepresented parties
                                               210.22, the Commission has determined                   by-section analysis includes a                        may lead to notification issues,
                                               that administrative law judges will not                 discussion of all modifications                       particularly with respect to service of
                                               be able to designate potentially                        suggested by the commentators. As a                   complaints on named respondents, and
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                                               dispositive issues for inclusion in a 100-              result of some of the comments, the                   result in due process challenges. Adduci
                                               day proceeding following institution of                 Commission has determined to modify                   proposes accordingly that the
                                               an investigation. Therefore, proposed                   several of the proposed amendments,                   Commission delay electronic service
                                               rule 210.22, which allows parties for file              including deleting certain sections in                until after the entity being served is
                                               a request for such designation by                       the final rule as summarized above. The               represented by an attorney. Specifically,
                                               motion, will not appear in the final                    section-by-section analysis will refer to             Adduci proposes the following language
                                               rules.                                                  the rules as they appeared in the NPRM.               for § 201.16(a)(1):


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                                               21142                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

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


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                           21143

                                               Commission’s concerns regarding the                     extension of time for good cause shown.               Commission’s ability to institute
                                               safekeeping of confidential information.                As set forth in the pilot program, the                multiple investigations from a single
                                               Participants in Commission proceedings                  presiding administrative law judge will               complaint are unnecessary given the
                                               are reminded of their obligations to                    have discretion to stay discovery of all              existing, inherent power of
                                               comply with Administrative Protective                   other issues during the pendency of the               administrative law judges to manage
                                               Orders (APOs) and that breaches of                      100-day proceeding.                                   their dockets and limit the issues to be
                                               APOs are subject to serious sanctions.                     The Commission notes that the 100-                 decided. The IPOA cautions that this
                                               See 19 CFR 210.34; 82 FR 29322 (June                    day proceeding differs from a summary                 power, including for example, requiring
                                               28, 2017).                                              determination in that the administrative              parties to present their cases within an
                                                                                                       law judge’s ruling pursuant to this                   allotted time, limiting the number of
                                               19 CFR Part 210
                                                                                                       section is made following an evidentiary              pages for witness statements, and
                                               Subpart C—Adjudication and                              hearing. These changes are intended to                limiting the amount of time allowed for
                                               Enforcement                                             provide a procedure for the early                     live direct testimony, could be
                                               Section 210.10                                          disposition of potentially dispositive                compromised by a requirement to split
                                                                                                       issues identified by the Commission at                any complaint that fails to satisfy
                                                  Section 337(b)(1) states that the                    institution of an investigation. This                 certain, currently unarticulated criteria.
                                               ‘‘Commission shall investigate any                      procedure is not intended to affect                   The IPOA does, however, propose that
                                               alleged violation of this section on                    summary determination practice under                  clear, enumerated factors governing
                                               complaint under oath or upon its                        section 210.18 whereby the                            multiple institutions should be
                                               initiative.’’ 19 U.S.C. 1337(b)(1).                     administrative law judge may dispose of               indicated in the rule in order to provide
                                               Accordingly, § 210.10 provides for                      one or more issues in the investigation               notice to potential parties. The IPOA
                                               institution of section 337 investigations                                                                     also suggests that the rules clarify
                                                                                                       when there is no genuine issue as to
                                               by the Commission based upon a                                                                                whether a decision to institute multiple
                                                                                                       material facts and the moving party is
                                               properly filed complaint. See 19 CFR                                                                          investigations can be appealed.
                                                                                                       entitled to summary determination as a
                                               210.10(a). The NPRM proposed adding                                                                              The CCCME suggests that the rules be
                                                                                                       matter of law.
                                               § 210.10(a)(6) to clarify that the                                                                            amended to allow respondents to
                                               Commission may institute multiple                       Section 210.10(a)(6)                                  submit a request for severance of an
                                               investigations based on a single                        Comments                                              investigation and to object when the
                                               complaint where necessary to limit the                                                                        Commission determines to sever an
                                               number of technologies and/or                             ITCTLA supports the Commission’s                    investigation. The CCCME also proposes
                                               unrelated patents asserted in a single                  ability to institute multiple                         that the Commission provide detailed
                                               investigation.                                          investigations based on a single                      requirements for severing investigations
                                                  In addition, § 210.10(b) provides that,              complaint where necessary to limit the                (or instituting multiple investigations
                                               when instituting an investigation, the                  number of unrelated technologies and/                 from a single complaint) to avoid abuse
                                               Commission shall issue a notice                         or unrelated patents asserted in a single             of the provision.
                                               defining the scope of the investigation,                investigation. ITCTLA notes, however,                    Adduci expresses some skepticism
                                               including whether the Commission has                    that where the same parties, same or                  about the need for proposed rule
                                               ordered the presiding administrative                    similar accused products, same or                     210.10(a)(6), noting that administrative
                                               law judge to take evidence and to issue                 similar domestic industry products, or                law judges are already adept at handling
                                               a recommended determination                             same or similar defenses are presented                multiple-technology, multi-patent
                                               concerning the public interest. The                     or implicated by a single complaint, the              investigations and that issues are
                                               NPRM proposed adding § 210.10(b)(1) to                  scope of discovery, relevant issues and               typically streamlined by the time the
                                               provide that the notice of investigation                administration of the case may so                     evidentiary hearing is held though
                                               will specify in plain language the                      overlap that instituting multiple                     discovery and other mechanisms, such
                                               accused products that will be within the                investigations may lead to increased                  as Markman proceedings. Adduci,
                                               scope of the investigation in order to                  costs on the parties and use of                       however, recommends that the
                                               avoid disputes between the parties                      Commission resources, or create                       Commission provide the criteria it will
                                               concerning the scope of the                             inconsistencies or conflict between                   consider in evaluating whether to
                                               investigation. New § 210.10(b)(2)                       investigations, even notwithstanding                  institute multiple investigations based
                                               contains the existing language in                       technically different asserted patent                 on a single complaint, noting that
                                               § 210.10(b), which provides that the                    families. The ITCTLA further notes that               without such guidance, complainants
                                               Commission may order the presiding                      the circumstance is rare where a single               will face difficulty in determining
                                               administrative law judge to take                        complaint presents such different                     which technologies and patents to assert
                                               evidence concerning the public interest.                technologies and issues that institution              in a complaint.
                                                  The Commission has established a                     of multiple investigations or severance                  Adduci also notes that the proposed
                                               ‘‘100-day’’ proceeding to provide for the               of an investigation is in the best interest           amendment provides no procedure to
                                               disposition of potentially dispositive                  of the timely and efficient investigation             allow a complainant to avoid institution
                                               issues within a specified time frame                    of the complaint. ITCTLA proposed the                 of multiple investigations under the
                                               following institution of an investigation.              following amended language for                        proposed rule. Adduci contends this
                                               The NPRM proposed adding                                § 210.10(a)(6):                                       failure is potentially problematic as a
                                               § 210.10(b)(3) to authorize the                           The Commission may determine to                     complainant may not have the resources
                                               Commission to direct the presiding                      institute multiple investigations based               to litigate simultaneous investigations or
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                                               administrative law judge to issue an                    on a single complaint where necessary                 may prefer to focus its efforts on a single
                                               initial determination pursuant to new                   to allow efficient adjudication and limit             investigation. Adduci notes that, even if
                                               § 210.42(a)(3), as described below, on a                the number of unrelated technologies                  a complainant were to withdraw and/or
                                               potentially dispositive issue as set forth              and products and/or unrelated patents                 modify its complaint, there is no
                                               in the notice of investigation. The                     asserted in a single investigation.                   procedure through which it may learn
                                               specified time frame for issuance of the                  The IPOA comments that the                          what changes are necessary to avoid
                                               initial determination is subject to an                  proposed amendments addressing the                    institution of simultaneous


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                                               21144                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

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



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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                          21145

                                               make explicit what accused products or                  the notice of investigation should                    language’’ that makes explicit what the
                                               category of accused products provided in                enumerate the specific software at issue              accused products are.
                                               accordance with § 210.12(a)(12) will be the             (e.g., Marshmallow) rather than merely
                                               subject of the investigation, and may be                                                                      Commission Response
                                                                                                       defining the investigation in terms of
                                               amended as provided in § 210.14(b) and (c).                                                                      The majority of the commentators
                                                                                                       devices (e.g., smartphones).
                                                  The IPOA supports proposed rule                         The CCCME proposes that the                        support adding the requirement to rule
                                               210.10(b)(1) to the extent it narrows the               description of the scope of an                        210.10(b)(1) that the notice of
                                               variety of products potentially falling                 investigation includes the product code               investigation specify the scope of the
                                               within the caption of an investigation to               of the named respondents’ alleged                     investigation in plain language.
                                               more readily identifiable categories of                 infringing product to avoid ambiguity.                Moreover, most of the commentators
                                               products, including downstream                             Adduci recommends amending the                     suggest that the proposed rule align
                                               products. The IPOA, however, questions                  proposed rule to clarify that the Federal             with the current requirements in rule
                                               the meaning of the phrase ‘‘such plain                  Register notice should identify the                   210.12(a)(12), which requires the
                                               language as to make explicit what                       categories of accused products rather                 complaint to ‘‘[c]ontain a clear
                                               accused products will be the subject of                 than specific accused products. Adduci                statement in plain English of the
                                               the investigation.’’ Similar to the                     asserts that its proposed amendment                   category of products accused.’’ 19 CFR
                                               ITCTLA, the IPOA suggests replacing                     would bring proposed rule 210.10(b)(1)                210.12(a)(12). In order to align the scope
                                               this phrase in proposed rule                            in line with existing rule 210.12(a)(12),             of the investigation stated in the notice
                                               210.10(b)(1) with language borrowed                     which requires that a complaint                       of investigation with the statement
                                               from § 210.12(a)(12) concerning the                     ‘‘[c]ontain a clear statement in plain                concerning the scope as stated in the
                                               requirement that a complaint ‘‘contain a                English of the category of products                   complaint, the Commission has
                                               clear statement in plain English of the                 accused.’’ See 19 CFR 210.1012(a)(12).                determined to amend proposed rule
                                               category of product accused’’ to avoid                  Adduci suggests, in order to avoid                    210.10(b)(1) to explicitly specify the
                                               potential inconsistencies.                              inconsistencies between the complaint                 correlation between that rule and
                                                  The IPOA specifically notes that it                  and the Federal Register notice of                    210.12(a)(12).
                                               does not support interpreting the ‘‘plain               institution, that the notice use the same                The Commission rejects IPOA’s
                                               language’’ phrase as requiring model                    plain language as used in the complaint               suggestion that discovery ‘‘beyond the
                                               numbers, which it asserts would be                      to define the categories of accused                   scope of the investigation be permitted
                                               inconsistent with the scope of relief                   products. Adduci suggests the following               for good cause’’ as it is not clear what
                                               afforded under the trade laws and with                  amendments to proposed rule                           IPOA means by ‘‘beyond the scope of
                                               longstanding Commission practice. The                   210.10(b)(1):                                         the investigation.’’
                                               IPOA also suggests that to the extent the                                                                        The Commission has considered
                                                                                                         An investigation shall be instituted by the
                                               proposed rule is intended to narrow the                 publication of a notice in the Federal
                                                                                                                                                             ITCWG’s suggestion to require that the
                                               scope of the notice of investigation in                 Register. The notice will define the scope of         notice of investigation indicate specific
                                               order to narrow discovery,                              the investigation in such plain language as to        types of software, and the CCCME’s
                                               administrative law judges should be                     make explicit what categories of accused              suggestion that the notice indicate
                                               permitted to extend discovery beyond                    products will be the subject of the                   specific product codes. Requiring the
                                               the scope of the notice of investigation                investigation, and may be amended as                  notice of investigation to indicate
                                               for good cause shown. Accordingly, the                  provided in § 210.14(b) and (c).                      accused products by specific names or
                                               IPOA suggests the following                                Mr. Chubb discourages                              model numbers does not comport with
                                               amendments to the proposed rule:                        implementation of proposed rule                       Commission practice. In particular, the
                                                 An investigation shall be instituted by the           210.10(b)(1), asserting that the rule                 Commission has long held that its
                                               publication of a notice in the Federal                  change would merely add a layer of                    remedies apply to any infringing
                                               Register. The notice will define the scope of           regulatory complexity to what he calls                product, not simply the products
                                               the investigation in such plain language,               a straightforward and routine process.                specifically adjudicated during an
                                               consistent with the requirement to provide in           Mr. Chubb contends that imposing a                    investigation. See, e.g., Certain Ground
                                               the Complaint a clear statement in plain                                                                      Fault Circuit Interrupters and Products
                                               English of the category of products accused
                                                                                                       formulaic plain language requirement
                                                                                                       will not prevent disputes from arising as             Containing the Same, Inv. No. 337–TA–
                                               pursuant to 19 CFR 210.12(a)(12), as to make                                                                  615, Comm’n Op. (Pub. Version) at 27
                                               explicit what one or more accused categories            to what the scope of an investigation
                                               of products will be the subject of the                  might be or the burden on the                         (Mar. 26, 2009), rev’d on other grounds,
                                               investigation, and may be amended as                    administrative law judge to resolve such              General Protecht Group, Inc. v. Int’l
                                               provided in 210.14(b) and (c). Discovery                disputes. Mr. Chubb cautions that the                 Trade Comm’n, 619 F.3d 1303 (Fed. Cir.
                                               beyond the scope of the investigation will be           proposed rule is likely to create                     2010). Identifying accused products
                                               by leave of the administrative law judge for            confusion by raising questions as to                  with such specificity invites the risk of
                                               good cause shown.                                       whether the language of the complaint                 unduly restricting the scope, not only of
                                                  The ITCWG supports the proposed                      itself continues to play a role in such               an investigation, but also of any
                                               rule of § 210.10(b)(1) concerning                       determinations, especially in view of                 potential remedy the Commission may
                                               specifying the scope of the investigation               existing rule 210.12(a)(12), which                    issue at the conclusion of that
                                               in plain language, noting that currently,               requires a complainant to describe the                investigation.
                                               complainants often seek improper                        accused products in the complaint with                210.10(b)(3)
                                               discovery on product types that have                    ‘‘a clear statement in plain English of
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                                               not been formally accused. The ITCWG                    the category of products accused.’’ See               Comments
                                               suggests, however, that the Commission                  19 CFR 210.12(a)(12). Mr. Chubb asserts                 The IPOA indicates that it generally
                                               may wish to consider modifying the                      that nothing in the current rules                     supports the proposed rule changes
                                               proposed language to provide that the                   constrains the Commission’s ability to                involving the 100-day proceeding and
                                               ‘‘type of accused products’’ be specified               describe the accused products in                      that it does not support limiting by
                                               in the notice and, in particular,                       whatever language it determines is the                example the types of issues that may be
                                               requiring that when software is accused,                most appropriate, including ‘‘plain                   designated as potentially dispositive.


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                                               21146                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

                                               With respect to the statement in the                    significant problems and invite abuse.                hearing, but cautions that this procedure
                                               NPRM concerning proposed                                The ITCTLA asserts that administrative                would increase the number of
                                               § 210.10(b)(3) which provides that                      law judges already have sufficient                    evidentiary hearings, necessarily
                                               administrative law judges will have                     discretion to consider potentially                    duplicating the efforts of the parties and
                                               discretion to stay discovery during the                 dispositive or otherwise significant                  resources of the Commission, while
                                               pendency of a 100-day proceeding, the                   issues on an expedited basis at their                 delaying the progress of the
                                               IPOA asserts that it is critical that the               discretion and that the proposed                      investigation.
                                               rules provide for a mandatory stay                      amendments may unintentionally invite                   The ITCTLA concludes that it does
                                               during the pendency of the proceeding                   abuse or hamstring, rather than enlarge,              not support the addition of a specific
                                               and during any subsequent Commission                    the discretion of the administrative law              mechanism, apart from that set forth in
                                               review. Otherwise, the IPOA cautions, a                 judges on these issues. The ITCTLA                    proposed rule 210.10(b)(3) and currently
                                               party subject to a 100-day proceeding                   notes the use of Markman hearings,                    permitted through motions for summary
                                               faces both a fast-track discovery/hearing               during which judges may, at their                     determination and the inherent
                                               on the potentially dispositive issue as                 discretion, take evidence, and where the              discretion of the administrative law
                                               well as the normal requirements of                      schedule is set in the judge’s discretion,            judges, for the resolution of potentially
                                               Commission discovery on other issues.                   taking into account the particulars of the            dispositive issues. Rather, the ITCTLA
                                               The IPOA suggests the following                         investigation. The ITCTLA also notes                  recommends, administrative law judges
                                               amended language for proposed                           former Chief Judge Luckern’s practice of              should be permitted to continue to
                                               § 210.10(b)(3):                                         requesting written submissions by the                 exercise their discretion in the timing
                                                                                                       parties on issues of particular concern               and conduct of proceedings to address
                                                  The Commission may order the
                                               administrative law judge to issue an initial            prior to the evidentiary hearing. The                 such issues, including any additional
                                               determination as provided in § 210.42(a)(3)(i)          ITCTLA further notes that Judge Lord                  hearings. While providing no direct
                                               and (ii) ruling on a potentially dispositive            has issued an order to show cause                     comment on the wording of proposed
                                               issue as set forth in the notice of                     regarding domestic industry in a                      rule 210.10(b)(3), the ITCTLA urges the
                                               investigation. The presiding administrative             situation where the issue was                         Commission to reserve the 100-day
                                               law judge is authorized, in accordance with             potentially dispositive. The ITCTLA                   proceeding for issues and investigations
                                               section 210.36, to hold expedited hearings on           notes that instituting a specific single              where it is apparent that the abbreviated
                                               any such designated issue and will also have                                                                  proceeding is likely to dispose of the
                                               discretion to stay discovery during the
                                                                                                       mechanism for the resolution of
                                               pendency of the 100-day proceeding.                     potentially dispositive issues may lead               investigation. The ITCTLA cautions that
                                                                                                       to the perception that administrative                 extensive use of the procedure would
                                               The Commission notes that, although                     law judges lack the discretion to address             otherwise delay discovery and
                                               the IPOA argues for a mandatory stay of                 dispositive issues at their own                       proceeding to the merits of
                                               the remainder of the investigation, the                 discretion and timeline.                              investigations for three months, which
                                               language it proposes leaves the decision                   The ITCTLA also asserts that the                   would also have the effect of extending
                                               to stay within the administrative law                   occasions where a 100-day proceeding                  target dates.
                                               judge’s discretion.                                     would be needed to dispose of an
                                                 The ITCWG generally supports                                                                                Commission Response
                                                                                                       investigation early would be very rare,
                                               implementation of the 100-day                           the potential for abuse in the majority of              As summarized above, the IPOA and
                                               proceeding in the rules and urges that                  investigations would be great, and such               ITCWG generally support the
                                               the procedure be used in a greater                      proceedings would impose an increased                 Commission’s effort to codify its 100-
                                               number of cases. The ITCWG does not                     burden on administrative law judges at                day program, but request that the rules
                                               provide any specific comments                           the beginning of most investigations.                 provide for a mandatory stay of the
                                               concerning the proposed language of                     Moreover, the ITCTLA asserts, were it to              remainder of the case during pendency
                                               § 210.10(b)(3). The ITCWG does,                         become increasingly common to address                 of the 100-day proceeding rather than
                                               however, note that the proposed rules                   such issues as domestic industry or                   leaving a stay to the discretion of the
                                               do not require a stay of discovery on                   validity at the preliminary stages of an              administrative law judge. The ITCTLA,
                                               non-designated issues during pendency                   investigation, the increased number of                on the other hand, argues that the 100-
                                               of a 100-day proceeding or during                       hearings and the multi-stage discovery,               day program is unnecessary since
                                               Commission review of the                                as well as the resultant delay in                     administrative law judges already have
                                               administrative law judge’s initial                      proceeding with the investigation                     ability to consider potentially
                                               determination on the designated issue.                  should the designated issue not dispose               dispositive issues on an expedited basis,
                                               Although the ITCWG acknowledges the                     of the investigation, creates a strong                for example, through the use of
                                               comment in the NPRM that the                            potential for increased burden on the                 Markman proceedings or summary
                                               administrative law judge has discretion                 resources of the Commission and the                   determinations. The ITCTLA asserts that
                                               to stay discovery during the pendency                   parties, likely requiring the extension of            use of the proposed 100-day proceeding
                                               of a 100-day proceeding and subsequent                  target dates.                                         could lead to the perception that the
                                               Commission review, the ITCWG                               The ITCTLA also notes that the                     administrative law judges lack the
                                               contends that any final rule should                     Commission has not identified what                    authority to address dispositive issues at
                                               provide for a mandatory stay. The                       constitutes a ‘‘potentially dispositive               their own discretion and timeline.
                                               ITCWG cautions that otherwise, a party                  issue’’ and that it is unclear whether the            However, a purpose of the new rule is
                                               subject to a 100-day proceeding faces                   issue must be capable of disposing of an              to provide the administrative law judges
                                               both fast-track discovery and a hearing                 entire investigation or whether, for                  with an additional tool to efficiently
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                                               on the 100-day issue, as well as the task               example, lack of domestic industry on a               adjudicate investigations.
                                               of conducting normal discovery on the                   subset of asserted patents would qualify.             Administrative law judges will continue
                                               remaining issues, thus increasing the                   The ITCTLA also notes the                             to have all the means currently at their
                                               burden and expense of the investigation.                Commission’s statement that the                       disposal to adjudicate investigations as
                                                 The ITCTLA cautions that many of                      proposed 100-day proceeding differs                   appropriate.
                                               the provisions associated with the                      from summary determination in that the                  The Commission notes the ITCTLA’s
                                               proposed 100-day proceeding present                     ruling is made following an evidentiary               concern regarding the administrative


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                          21147

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


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                                               21148                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

                                               investigations would presumably create                  of the procedural schedule. The ITCWG                 sever should be in the form of an order
                                               procedural schedules that either unduly                 argues this requirement could delay                   or an initial determination, Mr. Chubb
                                               push one investigation forward more                     issuance of the procedural schedule for               suggests the decision should be by
                                               quickly or else delays the second                       a considerable time while a severance                 initial determination since severance
                                               investigation. The ITCTLA also cautions                 motion is briefed and considered by the               significantly impacts the fundamental
                                               that the need for multiple hearings,                    administrative law judge. Furthermore,                scope of one or more investigations, as
                                               subpoenas, and motions where the                        the ITCWG asserts, it is unclear whether              well as the number of investigations the
                                               parties are otherwise the same will                     severance would begin with issuance of                Commission undertakes. Mr. Chubb
                                               likely create inefficiencies and possibly               the administrative law judge’s initial                asserts that these are matters on which
                                               extend target dates. ITCTLA posits that,                determination or after the Commission                 the Commission should automatically
                                               where issues are so dissimilar as to                    has affirmed the judge’s ruling. The                  have a say. Lastly, Mr. Chubb suggests
                                               warrant multiple investigations, the                    ITCWG also notes that the proposed rule               that instead of the currently proposed
                                               complainant will likely itself limit or                 leaves unclear what standard would                    requirement that an administrative law
                                               separate complaints or the Commission                   apply in determining whether patents                  judge determine whether to sever an
                                               can address severance pre-institution.                  and technology are sufficiently related.              investigation ‘‘at any time prior to or
                                               The ITCTLA also suggests the                            The ITCWG states that reference to the                upon issuance of the procedural
                                               Commission provide guidelines or                        Federal Rules of Civil Procedure may                  schedule,’’ that the proposed rule set a
                                               identify factors supporting severance in                provide guidance, but neglects to                     deadline of 30 days after publication of
                                               the commentary accompanying the final                   identify any specific rules the                       the notice of investigation. Mr. Chubb
                                               rule.                                                   Commission should consider. Lastly,                   notes that the issuance of a procedural
                                                  Regarding the Commission’s request                   the ITCWG notes that the Commission                   schedule is completely within a judge’s
                                               for comments addressing whether the                     should indicate how severed cases                     discretion and influenced by numerous
                                               administrative law judge’s decision to                  would be designated, such as with a                   factors which affect the timing of when
                                               sever should be in the form of an initial               new investigation number or with a                    such orders are issued and may vary
                                               determination or an order, the ITCTLA                   suffix to the existing investigation                  widely from investigation to
                                               recommends that an order would be                       number (e.g. by adding a, b, c, etc. to the           investigation.
                                               most appropriate so as to eliminate the                 end of the original investigation
                                               time it takes to petition for review in the             number).                                              Commission Response
                                               interest of expediting the investigation.                  The CCCME requests that proposed                      The majority of the commenters agree
                                               The ITCTLA recommends the following                     rule 210.14(h) be amended to explicitly               that the administrative law judges
                                               amendment to proposed rule 210.14(h):                   allow a respondent to file a motion to                should be able to sever investigations
                                                                                                       sever an investigation. The CCCME also                where a large number of technologies or
                                                  The administrative law judge may                     suggests that the proposed rule should
                                               determine to sever an investigation into two                                                                  unrelated patents are at issue. However,
                                               or more investigations at any time prior to or          state clearly whether, after severance,               the commenters do note that the
                                               upon thirty days from institution, based upon           the investigations will be presided over
                                                                                                                                                             proposed rule could lead to increased
                                               either a motion or upon the administrative              by the same administrative law judge.
                                                                                                                                                             motions practice and resultant delay.
                                               law judge’s own judgment that severance is              The CCCME further suggests the
                                                                                                                                                             Several commenters request that the
                                               necessary to allow efficient adjudication and           Commission provide detailed
                                               limit the number of unrelated technologies
                                                                                                                                                             Commission provide criteria for
                                                                                                       requirements for severance to avoid
                                               and products and/or unrelated patents                                                                         severance under the rule, presumably
                                                                                                       abuse of this procedure.
                                               asserted in a single investigation. The                    Although Mr. Chubb generally                       suggesting any such criteria be
                                               administrative law judge’s decision will be in          supports implementation of proposed                   consistent with proposed rule
                                               the form of an [initial determination] order            rule 210.14(h), he cautions that the                  210.10(a)(6). A majority of the
                                               [pursuant to 210.41(c)(3)].                                                                                   commenters disagree with tying
                                                                                                       procedure laid out in the proposed rule
                                                 The ITCWG insists that proposed rule                  (and presumably proposed rule 210.22)                 severance to issuance of the procedural
                                               210.14(h) is unnecessary as the                         would open up the early stages of many                schedule, with Mr. Chubb suggesting
                                               Commission and administrative law                       investigations to an influx of motions to             the Commission require the
                                               judges have had no difficulties severing                sever with corresponding uncertainty,                 administrative law judge to act within of
                                               and consolidating investigations where                  which could potentially disrupt the                   30 days after publication of the notice
                                               appropriate. The ITCWG cautions that                    orderly initiation of the discovery                   of investigation. Lastly, the commenters
                                               the proposed rule may have several                      process and other aspects of early case               express no consensus regarding whether
                                               unintended consequences, for example,                   development. Mr. Chubb does note,                     the administrative law judge’s decision
                                               inviting motions for severance and,                     however, that the same concern could                  to sever should be in the form of an
                                               thus, leading to increased motions                      be applied to the judge’s authority to                order or an initial determination.
                                               practice. The ITCWG notes that the                      consolidate cases under existing                         As with proposed rule 210.10(a)(6),
                                               potential increase could be exacerbated                 § 210.14(g), which has not in fact proven             the Commission declines to impose any
                                               by the proposed rule’s silence as to                    to be problematic. Specifically, Mr.                  rigid criteria for when an administrative
                                               whether severed cases stay with the                     Chubb points out that § 210.14(g)                     law judge might determine that severing
                                               originally assigned administrative law                  authorizes administrative law judges to               an investigation is appropriate. Rather,
                                               judge, and that, if not, the rule could                 consolidate investigations only where                 the Commission notes that severance
                                               invite motions for severance that are                   both investigations are already before                may be appropriate where, for example,
                                               actually attempts at ‘‘administrative law               the same judge, making cases where it                 the complaint alleges a significant
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                                               judge shopping.’’                                       might have applicability quite rare. Mr.              number of unrelated technologies,
                                                 The ITCWG suggests certain changes                    Chubb asserts that this limitation would              diverse products, unrelated patents,
                                               to proposed rule 210.14(h). Specifically,               not be relevant in cases of severance,                and/or unfair methods of competition
                                               the ITCWG notes the proposed rule                       arguably making the applicability of                  and unfair acts such that the resulting
                                               requires that the presiding                             severance more prevalent.                             investigation, if it proceeds as a single
                                               administrative law judge make                              With respect to whether the                        case, would be unduly unwieldy or
                                               decisions on severance prior to issuance                administrative law judge’s decision to                lengthy.


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                           21149

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


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                                               21150                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

                                               hearings and to make claim construction                 between the filing of the complaint and               consent orders. This change is intended
                                               rulings prior to any final evidentiary                  institution 30 days later are almost                  to conserve Commission resources and
                                               hearing.                                                inconceivable. Mr. Chubb further asserts              does not relieve the Commission of its
                                                                                                       that the rule runs contrary to the                    obligation under section 337(b)(2) to
                                               Commission Response
                                                                                                       Commission’s goal of providing                        consult with and seek advice and
                                                 Of the three comments submitted                       maximum notice and disclosure to                      information from the indicated agencies
                                               regarding proposed rule 210.14(i), two                  proposed respondents and the public                   as the Commission considers
                                               caution against implementation of the                   that temporary relief is being sought by              appropriate during the course of a
                                               rule, although for slightly different                   a complainant.                                        section 337 investigation. The
                                               reasons. After further consideration and                                                                      Commission has consulted with the
                                               in view of the concerns expressed by the                Commission Response
                                                                                                                                                             agencies in question and they have not
                                               commentators, the Commission has                           The Commission agrees with Mr.                     requested that the Commission provide
                                               determined not to implement proposed                    Chubb that the current wording of                     direct notice beyond its current practice.
                                               rule 210.14(i) at this time.                            proposed rule 210.15(a)(2) should be                     In addition, § 210.21(c)(3) sets out the
                                                                                                       clarified to indicate that the rule is                required contents of a consent order
                                               Section 210.15
                                                                                                       intended to prohibit the filing of any                stipulation while § 210.21(c)(4) sets out
                                                 Section 210.15 provides the                           motions before the Commission during                  the required contents of the consent
                                               procedure and requirements for motions                  preinstitution proceedings except with                order. The proposed rule would amend
                                               during the pendency of an investigation                 respect to motions for temporary relief               § 210.21(c)(3)(ii)(A) to conform to
                                               and related proceedings, whether before                 filed under 210.53. The Commission has                § 210.21(c)(4)(x), which requires that the
                                               an administrative law judge or before                   determined to amend proposed rule                     consent order stipulation and consent
                                               the Commission. The proposed rule                       210.15(a)(2) accordingly.                             order contain a statement that a consent
                                               would amend § 210.15(a)(2) to clarify                                                                         order shall not apply to any intellectual
                                               that this provision does not allow for                  Section 210.19
                                                                                                                                                             property right that has been held invalid
                                               motions, other than motions for                           Section 210.19 provides for                         or unenforceable or to any adjudicated
                                               temporary relief, to be filed with the                  intervention in an investigation or                   article found not to infringe the asserted
                                               Commission prior to institution of an                   related proceeding. The NPRM                          right or found no longer in violation by
                                               investigation.                                          proposed amending § 210.19 to clarify                 the Commission or a court or agency of
                                                                                                       that motions to intervene may be filed                competent jurisdiction in a final,
                                               Comments                                                only after institution of an investigation            nonreviewable decision. The proposed
                                                  Mr. Chubb states that the proposed                   or a related proceeding.                              rule would also amend
                                               amendment to § 210.15(a)(2) fails to                      No comments concerning the                          § 210.21(c)(4)(viii) to add the phrase
                                               clarify that rule 210.15 is not intended                proposed amendments to rule 210.19                    ‘‘any asserted patent claims,’’ delete the
                                               to allow pre-institution motions other                  were received. The Commission has                     phrase ‘‘the claims of the asserted
                                               than those for temporary relief. Rather,                therefore determined to adopt proposed                patent,’’ delete the second occurrence of
                                               Mr. Chubb states that the proposed                      rule 210.19 as stated in the NPRM.                    the word ‘‘claims,’’ and add the word
                                               language leaves the rule ambiguous as to                                                                      ‘‘claim’’ after ‘‘unfair trade practice’’ in
                                                                                                       Section 210.21
                                               whether the proposed parties or others                                                                        the phrase ‘‘validity or enforceability of
                                               are permitted to file motions prior to                    Section 210.21(b)(2) and (c)(2)                     the claims of the asserted patent claims
                                               institution. Mr. Chubb also asserts that                authorize the presiding administrative                . . . unfair trade practice in any
                                               the proposed rule mistakenly cites to                   law judge to grant by initial                         administrative or judicial proceeding to
                                               current rule 210.52, which concerns                     determination motions to terminate an                 enforce the Consent Order[.]’’ The
                                               motions for temporary relief filed with                 investigation due to settlement or                    proposed rule would further amend
                                               a complaint, and should instead cite to                 consent order, respectively. The                      § 210.21(c)(4)(x) to add the word
                                               rule 210.53, which concerns motions for                 paragraphs further provide that the                   ‘‘asserted’’ before ‘‘claim of the
                                               temporary relief filed after a complaint                Commission shall notify certain                       patent. . .’’ and to add the word
                                               is filed but before the Commission                      government agencies of the initial                    ‘‘claim’’ after ‘‘or unfair trade practice
                                               determines to institute an investigation                determination and the settlement                      . . .’’ The proposed rule also would add
                                               based on the complaint. Mr. Chubb                       agreement or consent order. Those                     new § 210.21(c)(4)(xi) to require in the
                                               suggests proposed rule 210.15(a)(2) be                  agencies include the U.S. Department of               consent order an admission of all
                                               reworded as follows to directly state                   Health and Human Services, the U.S.                   jurisdictional facts, similar to the
                                               that motions are not permitted prior to                 Department of Justice, the Federal Trade              provision requiring such a statement in
                                               institution, except for motions for                     Commission, the U.S. Customs Service                  the consent order stipulation
                                               temporary relief:                                       (now U.S. Customs and Border                          (210.21(c)(3)(i)(A)).
                                                  When an investigation or related
                                                                                                       Protection), and such other departments
                                                                                                       and agencies as the Commission deems                  Comments
                                               proceeding is before the Commission, all
                                               motions shall be addressed to the Chairman              appropriate.                                             Adduci notes that, while having no
                                               of the Commission. All motions shall be filed             Currently, the Commission effects                   specific comments on or issues with the
                                               with the Secretary and shall be served upon             such notice through various electronic                proposed amendments to § 210.21, it
                                               each party. Motions may not be filed during             means, including posting a public                     has some concerns with the rule which
                                               a preinstitution proceeding except for                  version of the initial determination and              are not addressed by the proposed
                                               motions for temporary relief as prescribed by           public versions of any related settlement             amendments. In particular, Adduci
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                                               § 210.53.                                               agreements or consent orders on its                   notes that § 210.21(c)(4) states that the
                                                 Mr. Chubb also suggests that, in a                    website. The proposed rule would                      ‘‘Commission will not issue consent
                                               future rulemaking, the Commission                       amend § 210.21(b)(2) and (c)(2) to clarify            orders with terms beyond those
                                               rescind Commission rule 210.53 noting                   that the Commission need not otherwise                provided for in this section, and will not
                                               that the rule is seldom if ever invoked                 specifically notify the listed agencies               issue consent orders that are
                                               because situations where circumstances                  regarding any such initial determination              inconsistent with this section.’’ Adduci
                                               warranting temporary relief arise only                  and related settlement agreements or                  asserts that the language of the rule


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                          21151

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


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                                               21152                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

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


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                              21153

                                               determined to adopt proposed rule                       unduly restricts an administrative law                NPRM. Lastly, the ITCTLA expresses
                                               210.28(h)(3)(vi) as stated in the NPRM.                 judge’s ability to allow parties                      concern over the requirement of good
                                                                                                       additional time or to permit parties to               cause shown for any extension of time
                                               Section 210.32
                                                                                                       jointly agree on extensions. The IPOA                 beyond ten days to serve objections or
                                                  Section 210.32 provides for the use of               suggests the following amendment to                   file a motion to quash. The ITCTLA
                                               subpoenas during the discovery phase                    proposed rule 210.32(d)(1):                           asserts that the proposed rule unduly
                                               of a section 337 investigation. In                                                                            limits the ability of administrative law
                                                                                                         Any objection to a subpoena shall be
                                               particular, § 210.32(d) provides for the                served in writing on the party or attorney            judges to permit additional time in their
                                               filing of motions to quash a subpoena                   designated in the subpoena within the later           ground rules or to permit parties to
                                               that the presiding administrative law                   of 10 days after receipt of the subpoena or           jointly agree on extensions for
                                               judge has issued. The NPRM proposed                     within such other time as the administrative          objections without the need for a
                                               amending § 210.32(d) to clarify that a                  law judge may allow or the party serving the          motion. In view of its comments, the
                                               party upon which a subpoena has been                    subpoena may permit. [The administrative
                                                                                                       law judge may, for good cause shown, extend           ITCTLA suggests the following
                                               served may file an objection to the                                                                           amendments to proposed rule
                                                                                                       the time in which objections may be filed.]
                                               subpoena within ten days of receipt of                                                                        210.32(d)(1):
                                               the subpoena, with the possibility of                     and proposed rule 210.32(d)(2):
                                               requesting an extension of time for filing                                                                      Any objection to a subpoena shall be
                                                                                                          Any motion to quash a subpoena shall be            served in writing on the party or attorney
                                               objections for good cause shown. The                    filed within [10] the later of 20 days after          designated in the subpoena within the later
                                               NPRM also proposed amending                             receipt of the subpoena or within such other          of 10 days after receipt of the subpoena or
                                               § 210.32(d) to clarify that any motion to               time as the administrative law judge may              within such time as the administrative law
                                               quash must be filed within ten days of                  allow. [The administrative law judge may, for         judge may allow or the party or attorney
                                               receipt of the subpoena, with the                       good cause shown, extend the time in which            designated in the subpoena may permit. [The
                                                                                                       motions to quash may be filed.]                       administrative law judge may, for good cause
                                               possibility of requesting an extension of
                                               time for good cause shown. The                             The ITCTLA states that it appreciates              shown, extend the time in which objections
                                               proposed amendment is intended to                       the Commission’s efforts to bring its                 may be filed.] If an objection is made, the
                                                                                                       subpoena practice into closer                         party that requested the subpoena may move
                                               bring the Commission’s subpoena                                                                               for a request for judicial enforcement.
                                               practice into closer conformity with the                conformity with the Federal Rules of
                                               Federal Rules of Civil Procedure. The                   Civil Procedure. The ITCTLA, however,                 and proposed rule 210.32(d)(2):
                                               Commission requested in particular                      expresses several concerns with the                      Any motion to quash a subpoena shall be
                                               comments concerning any potential                       effect and clarity of proposed rule                   filed within the later of 10 days after receipt
                                               conflicts that may arise from copending                 210.32(d) and, in particular, the                     of the subpoena or within such time as the
                                               objections and motions to quash.                        respective roles of objections and                    administrative law judge may allow. [The
                                                  In addition, § 210.32(f) authorizes the              motions to quash. In particular, the                  administrative law judge may, for good cause
                                                                                                       ITCTLA notes that it supports the                     shown, extend the time in which motions to
                                               payment of fees to deponents or                                                                               quash may be filed.]
                                               witnesses subject to a subpoena. The                    addition of a mechanism, like in Federal
                                               NPRM proposed amending § 210.32(f)(1)                   District Court, that permits a third party              Adduci expresses concern that the 10-
                                               to clarify that such deponents and                      subject to a subpoena to serve objections             day deadline in proposed rule
                                               witnesses are entitled to receive both                  to the subpoena. Specifically, the                    210.32(d)(2) for filing motions to quash,
                                               fees and mileage in conformance with                    ITCTLA notes that proposed rule                       particularly in light of the proposed 10-
                                               Federal Rule of Civil Procedure 45(b)(1)                210.32(d)(1) does not indicate the effect             day deadline for objections under
                                               and to correct the antecedent basis for                 of filing such objections, whereas Fed.               proposed rule 210.32(d)(1), will result
                                               ‘‘fees and mileage’’ as recited in                      R. Civ. P. 45(d)(2)(B) provides that, if an           in unnecessary motions to quash and
                                               § 210.32(f)(2).                                         objection is made, the party serving the              waste private and public resources.
                                                                                                       subpoena may move for an order                        Adduci states that, in practice, a party
                                               Comments                                                compelling compliance. The ITCTLA                     served with a subpoena should first
                                                 The IPOA supports the proposed                        asserts that the proposed rule is unclear             serve its objections (as proposed in rule
                                               amendment to § 210.32(d) permitting                     as to whether upon service of                         210.32(d)(1)), and should thereafter
                                               service of objections to subpoenas. The                 objections, the party has discharged its              have an opportunity to meet and confer
                                               IPOA does, however, express concern                     obligations with respect to the subpoena              with the requesting party on those
                                               that having objections and motions to                   (thus shifting the burden to the party                objections before being required to file
                                               quash due within the same short ten-                    that requested the subpoena to move for               a motion to quash. Adduci notes that
                                               day period will not provide adequate                    a request for judicial enforcement) or                parties are often able to resolve disputes
                                               opportunity for parties to negotiate                    whether the party subject to the                      over a subpoena without the need for a
                                               subpoena-related issues before a motion                 subpoena must now simultaneously file                 motion to quash. Accordingly, Adduci
                                               to quash must be filed. Accordingly, the                both objections and a motion to quash                 recommends the Commission modify
                                               IPOA recommends allowing 20 days to                     if it seeks to limit a subpoena. The                  the language of proposed rule
                                               move to quash, which would permit                       ITCTLA suggests that, if the intent of the            210.32(d)(2) to require that any motion
                                               parties some time to meet and confer                    proposed rule is the former, which                    to quash be filed within twenty days of
                                               regarding subpoena objections and                       would be more in keeping with the                     receipt of the subpoena. Furthermore,
                                               possibly avoid motions practice without                 federal rules, the Commission amend                   Adduci suggests the rule make clear that
                                               unduly delaying the investigation. The                  the proposed rule as indicated below.                 a motion to quash may be filed only if
                                               IPOA questions whether the removal of                      The ITCTLA also questions the                      the movant: (1) Timely served
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                                               ‘‘motions to limit’’ from the proposed                  removal of the ‘‘motion to limit’’                    objections pursuant to proposed rule
                                               rule was intentional and intended to be                 language, noting that if the intent is to             210.32(d)(1), and (2) met and conferred
                                               subsumed into the new objections                        permit the option of filing objections if             with the requesting party to make a
                                               process. The IPOA also argues that the                  a party objects in part to a subpoena and             good faith effort to resolve any issues
                                               requirement for parties to show good                    to file a motion to quash if the                      that it has with the subpoena. Adduci
                                               cause for an extension of time to serve                 subpoenaed party objects in full, such is             states that offsetting the deadlines for
                                               objections or to file motions to question               not clear from the proposed rules or the              objections and motions to quash would


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                                               21154                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

                                               provide notice of the receiving party’s                 subpoenaed party is relevant and not                  law judge continue to have discretion to
                                               objections and allow sufficient time for                burdensome.                                           permit written submissions or oral
                                               the parties to attempt to resolve those                    In keeping with the Federal rules, the             argument bearing on administrative
                                               issues without resorting to motions                     Commission has determined to clarify                  protective order violations and
                                               practice.                                               proposed rule 210.32(d)(2) to require,                sanctions therefor. In the interest of
                                                  Mr. Chubb notes that, in practice,                   akin to current rule 210.33(a), which                 preserving the confidentiality of the
                                               motions to quash subpoenas are rarely                   addresses motions to compel, that after               process, the Commission has decided
                                               filed within 10 days, since the parties                 an objection is made and negotiations                 that notification of all parties in an
                                               will generally discuss the breadth of the               fail, the requesting party must provide               investigation regarding breach of a
                                               subpoena before reaching an impasse                     notice before seeking judicial                        protective order may be inappropriate in
                                               that necessitates a motion to quash. Mr.                enforcement. With respect to the                      many cases. Submissions from relevant
                                               Chubb suggests that, since it appears the               requirement that administrative law                   persons will be requested as necessary
                                               Commission’s intent is that the time for                judges can extend the time for filing                 and appropriate.
                                               motions to quash ultimately be                          objections or motions to quash only for
                                                                                                       good cause, the Commission accepts the                Comments
                                               determined by the administrative law
                                               judge, proposed rule 210.32(d)(2)                       solution proposed by the commenters to                   The IPOA supports the Commission
                                               should state so directly by expressly                   allow the judges to otherwise set the                 and the administrative law judge having
                                               giving the judge the ability to set the                 time.                                                 the discretion to permit parties to make
                                               time for filing motions to quash in the                    Based on the above discussion, the                 written submissions or present oral
                                               first instance, rather than the current                 Commission has determined to adopt                    arguments concerning administrative
                                               proposal which is directed to extension                 the amendments to rule 210.32(d)                      protective order violations. The IPOA
                                                                                                       proposed by the ITCTLA, with the                      contends, however, that it is unclear
                                               of time for such motions. Mr. Chubb
                                                                                                       addition of the notice language from                  whether the proposed changes will
                                               suggests the following language for
                                                                                                       rule 210.33. That language indicates that             affect the notice of an alleged or actual
                                               proposed rule 210.32(d)(2):
                                                                                                       the requesting party may also move for                breach provided under current rule
                                                  Any motion to quash a subpoena shall be              a request for judicial enforcement upon               210.34. The IPOA therefore
                                               filed within 10 days after receipt of the               reasonable notice or as provided by the               recommends leaving current rule
                                               subpoena or within a period of time set by                                                                    210.34(c)(1) unchanged.
                                                                                                       administrative law judge. For example,
                                               the administrative law judge. The
                                                                                                       the administrative law judge may                         The ITCWG cautions against
                                               administrative law judge may, for good cause
                                               shown, extend the time in which motions to              require that the parties meet and confer              implementation of proposed rule
                                               quash may be filed.                                     prior to the filing of the request for                210.34(c), arguing that the rule and the
                                                                                                       judicial enforcement. The Commission                  accompanying comment in the NPRM
                                               Commission Response                                     does not, however, accept the ITCTLA’s                appear inconsistent. Specifically,
                                                                                                       suggestion that the party or attorney                 ITCWG notes, the comment states that
                                                  The Commission notes that the                        designated in the subpoena may agree                  ‘‘notification of all parties in an
                                               commenters seem to be conflating                        on the timing of responses without the                investigation regarding breach of a
                                               objections and motions to quash. As                     input and approval of the administrative              protective order may be inappropriate in
                                               stated in Rule 45 of the Federal Rules of               law judge.                                            many cases,’’ while the proposed rule
                                               Civil Procedure, motions to quash are                      No comments were received                          refers to the initiation of a sanctions
                                               generally allowed only in specific                      concerning proposed rule 210.32(f). The               inquiry by party motion, which
                                               circumstances. See FRCP 45(d)(3). The                   Commission therefore adopts proposed                  presumably must be served on all
                                               Federal Rules do not apply such                         rule 210. 32(f) as stated in the NPRM                 parties to the investigation and filed on
                                               strictures on the filing of objections to               with a typographical correction.                      EDIS. The ITCWG states that the
                                               a subpoena. Rather, when a subpoenaed                                                                         Commission’s comment that notice of
                                               entity files an objection, the burden                   Section 210.34                                        an alleged administrative protective
                                               shifts to the requesting party, requiring                  Section 210.34 provides for the                    order breach will be provided at its
                                               the requester to file a motion to compel                issuance of protective orders and for the             discretion is at odds with the goal stated
                                               after notifying the subpoenaed entity.                  remedies and sanctions the Commission                 in the Strategic Plan that the
                                               See FRCP 45(d)(2)(B). It is this precise                may impose in the event of a breach of                Commission wishes to promote
                                               burden shifting the Commission                          a Commission-issued administrative                    transparency and understanding in
                                               intended to capture with the proposed                   protective order. Section 210.34(c)(1)                investigative proceedings. The ITCWG
                                               rule. Objections and motions to quash                   provides that the Commission shall treat              contends that the proposed rule appears
                                               are generally intended to be mutually                   the identity of any alleged breacher as               to allow no notice to parties who are not
                                               exclusive procedures though there may                   confidential business information                     directly involved in the alleged breach
                                               occasionally be overlap in how they are                 unless the Commission determines to                   even though, the ITCWG insists, such
                                               utilized. The Commission therefore                      issue a public sanction. Section                      knowledge could prove valuable in
                                               disagrees with Adduci’s assumption                      210.34(c)(1) also requires the                        helping better secure the aggrieved
                                               that motions to quash may be filed only                 Commission and the administrative law                 party’s confidential business
                                               after the failure of negotiations                       judge to allow parties to make                        information going forward. The ITCWG
                                               following an objection pursuant to                      submissions concerning these matters.                 argues that the Commission’s comment
                                               proposed rule 210.32(d)(1).                             The NPRM proposed amending                            appears to suggest the Commission need
                                                  The IPOA’s assumption that motions                   § 210.34(c)(1) to remove the provision                not notify a party whose confidential
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                                               to limit were intended to be subsumed                   requiring the Commission or the                       business information may have been
                                               into the new objections process is                      administrative law judge to allow the                 disclosed, presumably if it wasn’t that
                                               partially correct. The Commission’s                     parties to make written submissions or                party who brought the potential breach
                                               purpose is to align the Commission’s                    present oral arguments bearing on the                 to the Commission’s attention. The
                                               practice to Rule 45, which requires the                 issue of violation of a protective order              ITCWG cautions that, under the
                                               requesting party to prove that                          and the appropriate sanctions therefor.               proposed rule, there is too much
                                               information it seeks from the                           The Commission and the administrative                 uncertainty regarding how much notice


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                             21155

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



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                                               21156                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

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


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                         21157

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


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                                               21158                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

                                               under current § 210.75 were permitted,                  the proposed amendment indicated in                   itself to abide by a 30-day deadline in
                                               an unacceptably large proportion of                     the NPRM to delete current § 210.75(a).               instituting formal enforcement
                                               potentially violative behavior would go                                                                       investigations. Moreover, the revised
                                                                                                       Redesignated § 210.75(a) (currently
                                               unscrutinized, since formal enforcement                                                                       rule allows for extending the deadline
                                                                                                       § 210.75(b)(1))
                                               proceedings would not be appropriate                                                                          in the case of exceptional
                                               in every situation.                                     Comments                                              circumstances. The Commission also
                                                 Mr. Chubb suggests that the                              Mr. Chubb notes that the NPRM                      notes that the Office of Unfair Import
                                               Commission could remedy any concerns                    proposes amending redesignated                        Investigations does not review
                                               that use of the term ‘‘enforcement                      § 210.75(a)(1) to impose a 30-day                     enforcement complaints. Moreover,
                                               proceeding’’ in current rule 210.75(a)                  deadline to institute formal enforcement              enforcement complaints are served after
                                               invokes Vastfame by using a different                   proceedings after a complaint for                     institution and so the Commission does
                                               term such as ‘‘preliminary investigative                enforcement is filed. Mr. Chubb                       not consider responses to the complaint
                                               activity.’’ Mr. Chubb notes that the                    questions the necessity of a rule                     during the pre-institution period. 19
                                               Commission is specifically authorized                   providing a fixed deadline for                        CFR 210.75(a)(1) formerly 19 CFR
                                               under Section 603 of the Trade Act of                   instituting formal enforcement                        210.75(b)(1).
                                               1974, 19 U.S.C. 2482, to engage in such                                                                          No comments were received
                                                                                                       proceedings since, as he states, the
                                               preliminary investigations. Mr. Chubb                                                                         concerning proposed rules (as
                                                                                                       Commission has its own incentives,
                                               therefore recommends the Commission                                                                           redesignated) 210.75(a)(4) and (5). The
                                                                                                       through internal deadlines and its                    Commission has therefore determined to
                                               retain § 210.75(a) as a vehicle for                     Strategic Plan, to expeditiously process
                                               informal investigative activity, but avoid                                                                    adopt proposed rule (as redesignated)
                                                                                                       enforcement complaints. Mr. Chubb                     210.75(a) as stated in the NPRM.
                                               any concerns about potential conflicts                  notes that the rules do not specify
                                               with Vastfame by adopting the                           requirements for enforcement                          Section 210.76
                                               following revised language:                             complaints as comprehensively as they                    Section 210.76 provides the method
                                                 Informal investigative activities may be              do for violation complaints.                          by which a party to a section 337
                                               conducted by the Commission, including                  Accordingly, Mr. Chubb asserts, the                   investigation may seek modification or
                                               through the Office of Unfair Import                     Commission may need to conduct more                   rescission of exclusion orders, cease and
                                               Investigations, with respect to any act or              of a pre-institution investigation in                 desist orders, and consent orders issued
                                               omission by any person in possible violation            many cases and seek supplementation
                                               of any provision of an exclusion order, cease
                                                                                                                                                             by the Commission. The NPRM
                                                                                                       from the complainant, making a rigid                  proposed amending § 210.76(a) to
                                               and desist order, or consent order. Such
                                               matters may be handled by the Commission
                                                                                                       30-day period unworkable.                             clarify that this section is in accordance
                                               through correspondence or conference or in              Additionally, Mr. Chubb contends that                 with section 337(k)(1) and allows any
                                               any other way that the Commission deems                 under the proposed 30-day rule, the                   person to request the Commission to
                                               appropriate. The Commission may issue such              Commission’s ability to comply will                   make a determination that the
                                               orders as it deems appropriate to implement             likely be heavily dependent on the                    conditions which led to the issuance of
                                               and insure compliance with the terms of an              Office of Unfair Import Investigations’               a remedial or consent order no longer
                                               exclusion order, cease and desist order, or             informal review of draft complaints. Mr.              exist. The NPRM also proposed adding
                                               consent order, or any part thereof. Any                 Chubb cautions that it is unclear                     § 210.76(a)(3) to require that, when the
                                               matter not disposed of informally may be                whether enforcement complainants will
                                               made the subject of a formal proceeding
                                                                                                                                                             requested modification or rescission is
                                               pursuant to this subpart.
                                                                                                       take advantage of the Office of Unfair                due to a settlement agreement, the
                                                                                                       Import Investigations’ ability to review              petition must include copies of the
                                               Commission Response                                     draft complaints.                                     agreements, any supplemental
                                                                                                          Moreover, Mr. Chubb warns that the                 agreements, any documents referenced
                                                 Current section 210.75(a) states that                 30-day institution proposal for formal                in the petition or attached agreements,
                                               the Commission may issue orders as a                    enforcement proceedings is unrealistic                and a statement that there are no other
                                               result of the ‘‘informal enforcement                    because it fails to take into account the             agreements, consistent with rule
                                               proceedings’’ provided for in the rule.                 right of an enforcement respondent to                 210.21(b)(1).
                                               19 CFR 210.75(a). However, under                        respond to an enforcement complaint                      In addition, § 210.76(b) specifies that
                                               Vastfame, the Commission’s                              within 15 days of service. Mr. Chubb                  the Commission may institute such a
                                               investigation of a violation of remedial                notes that, in instituting violation                  modification or rescission proceeding
                                               orders must be considered the same as                   investigations, the Commission does not               by issuing a notice. The NPRM
                                               an investigation under subsection 337(b)                have to address such responses, which                 proposed amending § 210.76(b) to
                                               of the statute. The Commission’s                        is another factor to consider in setting              provide that the Commission shall
                                               authority to issue a remedy for violation               a deadline for institution of enforcement             determine whether to institute the
                                               of remedial orders cannot be altered                    complaints. Mr. Chubb therefore                       requested modification or rescission
                                               merely by changing the verbiage used to                 suggests that, if the Commission intends              proceeding within 30 days of receiving
                                               describe the Commission’s investigative                 to impose a regulatory deadline for the               the request, similar to the provisions
                                               activity. 19 U.S.C. 2482 confers                        institution of formal enforcement                     recited in § 210.10(a), barring
                                               authority for conducing preliminary                     proceedings, it allow at least 45 or 60               exceptional circumstances, a request for
                                               investigations before determining                       days.                                                 postponement of institution, or
                                               whether to institute either an initial                                                                        withdrawal of the petition for
                                               investigation or an enforcement                         Commission Response                                   modification or rescission. The
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                                               proceeding. This section of the statute                   The Commission acknowledges Mr.                     proposed rule would further clarify that
                                               does not provide authority for the                      Chubb’s concerns regarding the                        the notice of commencement of the
                                               Commission to conduct investigations                    Commission’s ability to meet the 30-day               modification or rescission proceeding
                                               that may potentially result in the                      institution goal for enforcement                      may be amended by leave of the
                                               Commission issuing a remedy.                            proceedings as indicated in proposed                  Commission. Under some
                                                 Based on the above discussion, the                    rule (as redesignated) 210.75(a)(1). The              circumstances, such as when settlement
                                               Commission has determined to adopt                      Commission, however, has committed                    between the parties is the basis for


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                             21159

                                               rescission or modification of issued                    delete rule 210.77 and reserve it for                   For the reasons stated in the
                                               remedial orders, institution and                        future use as stated in the NPRM.                     preamble, the United States
                                               disposition of the rescission or                                                                              International Trade Commission
                                                                                                       Section 210.79
                                               modification proceeding may be in a                                                                           amends 19 CFR parts 201 and 210 as
                                               single notice.                                            Section 210.79 provides that the                    follows:
                                                                                                       Commission will, upon request, issue
                                               Comments                                                advisory opinions concerning whether                  PART 201—RULES OF GENERAL
                                                  Mr. Chubb asserts the Commission’s                   any person’s proposed course of action                APPLICATION
                                               proposal to adopt a 30-day deadline for                 or conduct would violate a Commission
                                               the institution of modification or                      remedial order, including an exclusion                ■ 1. The authority citation for part 201
                                               rescission proceedings suffers from the                 order, cease and desist order, or consent             continues to read as follows:
                                               same infirmities as the Commission’s                    order. The NPRM proposed amending                       Authority: Sec. 335 of the Tariff Act of
                                               proposal to adopt a 30-day deadline for                 § 210.79(a) to provide that any                       1930 (19 U.S.C. 1335), and sec. 603 of the
                                               the institution of enforcement                          responses to requests for advisory                    Trade Act of 1974 (19 U.S.C. 2482), unless
                                                                                                       opinions shall be filed within 10 days                otherwise noted.
                                               proceedings under proposed rule
                                               210.75. Mr. Chubb suggests, consistent                  of service. The NPRM also proposed                    Subpart A—Miscellaneous
                                               with his recommendations concerning                     amending § 210.79(a) to provide that the
                                               proposed rule 210.75, that the                          Commission shall institute the advisory               ■ 2. Amend § 201.16 by revising
                                               Commission reject the proposed                          proceeding by notice, which may be                    paragraphs (a)(1), (a)(4), and (f) to read
                                               amendments to § 210.76 or, in the                       amended by leave of the Commission,                   as follows:
                                               alternative, lengthen the proposed 30-                  and the Commission shall determine
                                               day period to a 45 or 60-day period.                    whether to institute an advisory opinion              § 201.16 Service of process and other
                                                                                                       proceeding within 30 days of receiving                documents.
                                               Commission Response                                     the request barring exceptional                          (a) * * *
                                                 No comments were received                             circumstances, a request for                             (1) By mailing, delivering, or serving
                                               concerning proposed rule 210.76(a).                     postponement of institution, or                       by electronic means a copy of the
                                               With respect to Mr. Chubb’s comment,                    withdrawal of the request for an                      document to the person to be served, to
                                               the Commission has committed itself to                  advisory opinion.                                     a member of the partnership to be
                                               abide by a 30-day deadline in instituting                                                                     served, to the president, secretary, other
                                                                                                       Comments                                              executive officer, or member of the
                                               modification or rescission proceedings,
                                               but the revised rule allows for extending                  Mr. Chubb asserts the Commission’s                 board of directors of the corporation,
                                               the deadline in the case of exceptional                 proposal to adopt a 30-day deadline for               association, or other organization to be
                                               circumstances. The Commission has                       the institution of advisory opinion                   served, or, if an attorney represents any
                                               therefore determined to adopt proposed                  proceedings suffers from the same                     of the above before the Commission, by
                                               rule 210.76 as stated in the NPRM.                      infirmities as the Commission’s                       mailing, delivering, or serving by
                                                                                                       proposal to adopt a 30-day deadline for               electronic means a copy to such
                                               Section 210.77                                          the institution of enforcement                        attorney; or
                                                  Section 210.77 provides for the                      proceedings under proposed rule                       *      *     *     *     *
                                               Commission to take temporary                            210.75. Mr. Chubb suggests, consistent                   (4) When service is by mail, it is
                                               emergency action pending a formal                       with his recommendations concerning                   complete upon mailing of the
                                               enforcement proceeding under                            proposed rule 210.75, that the                        document. When service is by an
                                               § 210.75(b) by immediately and without                  Commission reject the proposed                        express service, service is complete
                                               hearing or notice modify or revoke the                  amendments to § 210.79 or, in the                     upon submitting the document to the
                                               remedial order under review and, if                     alternative, lengthen the proposed 30-                express delivery service or depositing it
                                               revoked, to replace the order with an                   day period to a 45 or 60-day period.                  in the appropriate container for pick-up
                                               appropriate exclusion order. As noted                   Commission Response                                   by the express delivery service. When
                                               above, the Federal Circuit held in                                                                            service is by electronic means, service is
                                               Vastfame that an enforcement                              The Commission again notes that it                  complete upon transmission of a
                                               proceeding requires that the parties be                 has committed itself to abide by a 30-                notification that the document has been
                                               afforded an opportunity for a hearing.                  day deadline in instituting advisory                  placed in an appropriate repository for
                                               386 F.3d at 1114–15. The procedure set                  opinion proceedings, but the revised                  retrieval by the person, organization,
                                               forth in § 210.77 for temporary                         rule allows for extending the deadline                representative, or attorney being served,
                                               emergency action pending a formal                       in the case of exceptional                            unless the Commission is notified that
                                               enforcement proceeding, therefore, is                   circumstances. The Commission has                     the notification was not received by the
                                               not in accordance with the Federal                      therefore determined to adopt proposed                party served.
                                               Circuit’s holding in Vastfame. The                      rule 210.79 as stated in the NPRM.                    *      *     *     *     *
                                               proposed rule would, accordingly,                       List of Subjects                                         (f) Electronic service by parties.
                                               delete § 210.77.                                                                                              Parties may serve documents by
                                                  No comments concerning the                           19 CFR Part 201                                       electronic means in all matters before
                                               proposed deletion of rule 210.77 were                     Administration practice and                         the Commission. Parties may effect such
                                               received except for Mr. Chubb’s, stating                procedure, Reporting and record                       service on any party, unless that party
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                                               his approval of the proposal and noting                 keeping requirements.                                 has, upon notice to the Secretary and to
                                               that the provision for ‘‘temporary                                                                            all parties, stated that it does not
                                               emergency action’’ has seldom if ever                   19 CFR Part 210                                       consent to electronic service. If
                                               been used by the Commission and, as                       Administration practice and                         electronic service is used, no additional
                                               noted in the NPRM, is of questionable                   procedure, Business and industry,                     time is added to the prescribed period.
                                               legality in view of Vastfame. The                       Customs duties and inspection, Imports,               However, any dispute that arises among
                                               Commission has therefore determined to                  Investigations.                                       parties regarding electronic service must


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                                               21160                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

                                               be resolved by the parties themselves,                     (3) The Commission may order the                   Subpart D—Motions
                                               without the Commission’s involvement.                   administrative law judge to issue an
                                               When a document served by electronic                    initial determination within 100 days of              ■ 8. Amend § 210.15 by revising
                                               means contains confidential business                    institution of an investigation as                    paragraph (a)(2) to read as follows:
                                               information or business proprietary                     provided in § 210.42(a)(3) ruling on a                § 210.15   Motions.
                                               information subject to an administrative                potentially dispositive issue as set forth
                                                                                                                                                                (a) * * *
                                               protective order, the document must be                  in the notice of investigation. The                      (2) When an investigation or related
                                               securely stored and transmitted by the                  presiding administrative law judge is                 proceeding is before the Commission,
                                               serving party in a manner, including by                 authorized, in accordance with § 210.36,              all motions shall be addressed to the
                                               means ordered by the presiding                          to hold expedited hearings on any such                Chairman of the Commission. All such
                                               administrative law judge, that prevents                 designated issue and also has discretion              motions shall be filed with the Secretary
                                               unauthorized access and/or receipt by                   to stay discovery of any remaining                    and shall be served upon each party.
                                               individuals or organizations not                        issues during the pendency of the 100-                Motions may not be filed with the
                                               authorized to view the specified                        day proceeding.                                       Commission during preinstitution
                                               confidential business information.                      *      *    *     *     *                             proceedings except for motions for
                                               *     *    *     *     *                                ■ 5. Amend § 210.11 by revising                       temporary relief pursuant to § 210.53.
                                                                                                       paragraph (a)(2)(i) to read as follows:               *      *    *    *     *
                                               PART 210—ADJUDICATION AND
                                               ENFORCEMENT                                                                                                   ■ 9. Amend § 210.19 by revising the first
                                                                                                       § 210.11 Service of complaint and notice
                                                                                                       of investigation.                                     sentence to read as follows:
                                               ■ 3. The authority citation for part 210
                                                                                                         (a) * * *                                           § 210.19   Intervention.
                                               continues to read as follows:
                                                                                                         (2) * * *                                             Any person desiring to intervene in
                                                   Authority: 19 U.S.C. 1333, 1335, and 1337.            (i) Copies of the nonconfidential                   an investigation or a related proceeding
                                                                                                       version of the motion for temporary                   under this part shall make a written
                                               Subpart B—Commencement of
                                                                                                       relief, the nonconfidential version of the            motion after institution of the
                                               Preinstitution Proceedings and
                                                                                                       complaint, and the notice of                          investigation or related proceeding.
                                               Investigations
                                                                                                       investigation upon each respondent;                   * * *
                                               ■ 4. Amend § 210.10 by adding                           and                                                   ■ 10. Amend section 210.21 by
                                               paragraph (a)(6) and revising paragraph                 *      *     *    *    *                              ■ a. Revising paragraph (b)(2);
                                               (b) read as follows:                                                                                          ■ b. Removing paragraph (c)(2)(i);
                                                                                                       Subpart C— Pleadings                                  ■ c. Redesignating paragraph (c)(2)(ii) as
                                               § 210.10    Institution of investigation.                                                                     paragraph (c)(2) and revising it;
                                                 (a) * * *                                             ■ 6. Amend § 210.12 by adding                         ■ d. Revising paragraph (c)(3)(ii)(A);
                                                 (6) The Commission may determine to                   paragraph (a)(9)(xi) to read as follows:              ■ e. Revising paragraph (c)(4)(viii);
                                               institute multiple investigations based                                                                       ■ f. Revising paragraph (c)(4)(x)
                                                                                                       § 210.12   The complaint.                             ■ g. Redesignating paragraph (c)(4)(xi)
                                               on a single complaint where necessary
                                               to allow efficient adjudication.                          (a) * * *                                           as (c)(4)(xii); and
                                                                                                         (9) * * *                                           ■ h. Adding a new paragraph (c)(4)(xi)
                                                 (b)(1) An investigation shall be
                                                                                                         (xi) The expiration date of each patent               The revisions and additions read as
                                               instituted by the publication of a notice
                                                                                                       asserted.                                             follows:
                                               in the Federal Register. The notice will
                                               define the scope of the investigation in                *     *    *     *     *                              § 210.21   Termination of investigations.
                                               such plain language as to make explicit                 ■ 7. Amend § 210.14 by adding                         *     *     *     *     *
                                               what accused products or category of                    paragraph (h) to read as follows:                       (b) * * *
                                               accused products provided in                                                                                    (2) The motion and agreement(s) shall
                                               accordance with § 210.12(a)(12) will be                 § 210.14 Amendments to pleadings and                  be certified by the administrative law
                                               the subject of the investigation, and may               notice; supplemental submissions;                     judge to the Commission with an initial
                                               be amended as provided in § 210.14(b)                   counterclaims; consolidation of                       determination if the motion for
                                               and (c).                                                investigations; severance of investigations.
                                                                                                                                                             termination is granted. If the licensing
                                                 (2) The Commission may order the                      *     *     *     *     *                             or other agreement or the initial
                                               administrative law judge to take                          (h) Severance of investigation. The                 determination contains confidential
                                               evidence and to issue a recommended                     administrative law judge may determine                business information, copies of the
                                               determination on the public interest                    to sever an investigation into two or                 agreement and initial determination
                                               based generally on the submissions of                   more investigations at any time prior to              with confidential business information
                                               the parties and the public under                        or upon thirty days from institution,                 deleted shall be certified to the
                                               § 210.8(b) and (c). If the Commission                   based upon either a motion by any party               Commission simultaneously with the
                                               orders the administrative law judge to                  or upon the administrative law judge’s                confidential versions of such
                                               take evidence with respect to the public                own judgment that severance is                        documents. If the Commission’s final
                                               interest, the administrative law judge                  necessary to allow efficient                          disposition of the initial determination
                                               will limit public interest discovery                    adjudication. The administrative law                  results in termination of the
                                               appropriately, with particular                          judge’s decision will be in the form of               investigation in its entirety, a notice will
                                               consideration for third parties, and will               an order. The newly severed                           be published in the Federal Register.
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                                               ensure that such discovery will not                     investigation(s) shall remain with the                Termination by settlement need not
                                               delay the investigation or be used                      same presiding administrative law judge               constitute a determination as to
                                               improperly. Public interest issues will                 unless reassigned at the discretion of the            violation of section 337 of the Tariff Act
                                               not be within the scope of discovery                    chief administrative law judge. The                   of 1930.
                                               unless the administrative law judge is                  severed investigation(s) will be                        (c) * * *
                                               specifically ordered by the Commission                  designated with new investigation                       (2) Commission disposition of consent
                                               to take evidence on these issues.                       numbers.                                              order. The Commission, after


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                           21161

                                               considering the effect of the settlement                § 210.25   Sanctions.                                    (v) Upon application and notice, that
                                               by consent order upon the public health                    (a)(1) Any party may file a motion for             such exceptional circumstances exist as
                                               and welfare, competitive conditions in                  sanctions for abuse of process under                  to make it desirable in the interest of
                                               the U.S. economy, the production of like                210.4(d)(1), abuse of discovery under                 justice and with due regard to the
                                               or directly competitive articles in the                 § 210.27(g)(3), failure to make or                    importance of presenting the oral
                                               United States, and U.S. consumers, shall                cooperate in discovery under § 210.33(b)              testimony of witnesses at a hearing, to
                                               dispose of the initial determination                    or (c), or violation of a protective order            allow the deposition to be used; or
                                               according to the procedures of §§ 210.42                under § 210.34(c). * * *                                 (vi) Upon agreement of the parties and
                                               through 210.45. If the Commission’s                        (2) The administrative law judge                   within the administrative law judge’s
                                               final disposition of the initial                        (when the investigation or related                    discretion, the use of designated
                                               determination results in termination of                 proceeding is before the administrative               deposition testimony in lieu of live
                                               the investigation in its entirety, a notice             law judge) or the Commission (when the                witness testimony absent the
                                               will be published in the Federal                        investigation or related proceeding is                circumstances otherwise enumerated in
                                               Register. Termination by consent order                  before it) also may raise the sanctions               this paragraph is permitted.
                                               need not constitute a determination as                  issue sua sponte. (See also                           *      *    *    *     *
                                               to violation of section 337. Should the                 §§ 210.4(d)(1)(ii), 210.27(g)(3), 210.33(c),          ■ 14. Amend § 210.32 by revising
                                               Commission reverse the initial                          and 210.34(c).)                                       paragraphs (d) and (f)(1) to read as
                                               determination, the parties are in no way                *      *     *     *     *                            follows:
                                               bound by their proposal in later actions
                                               before the Commission.                                  Subpart E—Discovery and Compulsory                    § 210.32   Subpoenas.
                                                  (3) * * *                                            Process                                               *      *     *     *    *
                                                  (ii) * * *                                                                                                    (d) Objections and motions to quash.
                                                  (A) A statement that if any asserted                 ■ 12. Amend § 210.27 by adding                        (1) Any objection to a subpoena shall be
                                               patent claim, copyright, trademark,                     paragraph (e)(5) and in paragraph (g)(3),             served in writing on the party or
                                               mask work, boat hull design, or unfair                  by removing the phrase ‘‘If without                   attorney designated in the subpoena
                                               trade practice claim has expired or is                  substantial justification a request,                  within the later of 10 days after receipt
                                               held invalid or unenforceable by a court                response, or objection is certified in                of the subpoena or within such time as
                                               or agency of competent jurisdiction or if               violation of paragraph (d)(2) of this                 the administrative law judge may allow.
                                               any article has been found or                           section’’ and adding in its place ‘‘If                If an objection is made, the party that
                                               adjudicated not to infringe the asserted                without substantial justification a                   requested the subpoena may move for a
                                               right in a final decision, no longer                    request, response, or objection is                    request for judicial enforcement upon
                                               subject to appeal, this Consent Order                   certified in violation of paragraph (g)(2)            reasonable notice to other parties or as
                                               shall become null and void as to such                   of this section,’’.                                   otherwise provided by the
                                               expired, invalid, or unenforceable claim                  The addition reads as follows:                      administrative law judge who issued the
                                               or as to any adjudicated article;                                                                             subpoena.
                                                                                                       § 210.27 General provisions governing
                                               *       *    *    *     *                               discovery.                                               (2) Any motion to quash a subpoena
                                                  (4) * * *                                                                                                  shall be filed within the later of 10 days
                                                  (viii) A statement that Respondent                   *      *     *     *    *
                                                                                                         (e) * * *                                           after receipt of the subpoena or within
                                               and its officers, directors, employees,                                                                       such time as the administrative law
                                                                                                         (5)(i) The provisions of § 210.27(e)(1)
                                               agents, and any entity or individual                                                                          judge may allow.
                                                                                                       through (4) protect drafts of expert
                                               acting on its behalf and with its                                                                             *      *     *     *    *
                                                                                                       reports, regardless of the form in which
                                               authority shall not seek to challenge the                                                                        (f) * * *
                                                                                                       the draft is recorded.
                                               validity or enforceability of any asserted                (ii) The provisions of § 210.27(e)(1)                  (1) Deponents and witnesses. Any
                                               patent claims, copyright, trademark,                    through (4) protect communications                    person compelled to appear in person to
                                               mask work, boat hull design, or unfair                  between the party’s attorney and expert               depose or testify in response to a
                                               trade practice claim in any                             witnesses concerning trial preparation,               subpoena shall be paid the same fees
                                               administrative or judicial proceeding to                regardless of the form of the                         and mileage as are paid to witnesses
                                               enforce the Consent Order;                              communications, except to the extent                  with respect to proceedings in the
                                               *       *    *    *     *                               that the communications:                              courts of the United States; provided,
                                                  (x) A statement that if any asserted                   (A) Relate to compensation for the                  that salaried employees of the United
                                               patent claim, copyright, trademark,                     expert’s study or testimony;                          States summoned to depose or testify as
                                               mask work, boat hull design, or unfair                    (B) Identify facts or data that the                 to matters related to their public
                                               trade practice claim is held invalid or                 party’s attorney provided and that the                employment, irrespective of the party at
                                               unenforceable by a court or agency of                   expert considered in forming the                      whose instance they are summoned,
                                               competent jurisdiction or if any article                opinions to be expressed; or                          shall be paid in accordance with the
                                               has been found or adjudicated not to                      (iii) Identify assumptions that the                 applicable Federal regulations.
                                               infringe the asserted right in a final                  party’s attorney provided and that the                *      *     *     *    *
                                               decision, no longer subject to appeal,                  expert relied on in forming the opinions              ■ 15. Amend § 210.34 by revising
                                               this Consent Order shall become null                    to be expressed.
                                               and void as to such invalid or                                                                                paragraph (c)(1) to read as follows:
                                                                                                       *      *     *     *    *
                                               unenforceable claim or adjudicated                                                                            § 210.34 Protective orders; reporting
                                                                                                       ■ 13. Amend § 210.28 by revising
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                                               article;                                                                                                      requirement; sanctions and other actions.
                                                  (xi) An admission of all jurisdictional              paragraph (h)(3)(v) and adding
                                                                                                       paragraph (h)(3)(vi) to read as follows:              *     *     *    *     *
                                               facts; and                                                                                                      (c) Violation of protective order. (1)
                                               *       *    *    *     *                               § 210.28   Depositions.                               The issue of whether sanctions should
                                               ■ 11. Amend § 210.25 by revising the                    *       *    *       *       *                        be imposed may be raised on a motion
                                               first sentence of paragraph (a)(1) and                      (h) * * *                                         by a party, the administrative law
                                               paragraph (a)(2) to read as follows:                        (3) * * *                                         judge’s own motion, or the


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                                               21162                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

                                               Commission’s own initiative in                             (7) An initial determination filed                 review of an initial determination filed
                                               accordance with § 210.25(a)(2). Parties,                pursuant to § 210.42(a)(3) shall become               pursuant to § 210.42(a)(3) within 30
                                               including the party that identifies an                  the determination of the Commission 30                days after the service of the initial
                                               alleged breach or makes a motion for                    days after the date of service of the                 determination on the parties, or by such
                                               sanctions, and the Commission shall                     initial determination, unless the                     other time as the Commission may
                                               treat the identity of the alleged breacher              Commission has ordered review of the                  order. The Commission shall decide
                                               as confidential business information                    initial determination or certain issues               whether to grant, in whole or in part, a
                                               unless the Commission issues a public                   therein, or by order has changed the                  petition for review of an initial
                                               sanction. The identity of the alleged                   effective date of the initial                         determination filed pursuant to
                                               breacher means the name of any                          determination.                                        § 210.42(c), except as noted above,
                                               individual against whom allegations are                 *      *    *      *    *                             within 30 days after the service of the
                                               made. The Commission and the                            ■ 17. Amend § 210.43 by revising                      initial determination on the parties, or
                                               administrative law judge may permit the                 paragraphs (a)(1) and (d)(1) and (3) to               by such other time as the Commission
                                               parties to file written submissions or                  read as follows:                                      may order.
                                               present oral argument on the issues of                                                                        *      *     *     *    *
                                               the alleged violation of the protective                 § 210.43 Petitions for review of initial
                                                                                                                                                                (3) The Commission shall grant a
                                               order and sanctions.                                    determinations on matters other than
                                                                                                       temporary relief.                                     petition for review and order review of
                                               *      *     *    *     *                                                                                     an initial determination or certain issues
                                                                                                          (a) * * *
                                                                                                          (1) Except as provided in paragraph                therein when at least one of the
                                               Subpart G—Determinations and                                                                                  participating Commissioners votes for
                                               Actions Taken                                           (a)(2) of this section, any party to an
                                                                                                       investigation may request Commission                  ordering review. In its notice, the
                                                                                                       review of an initial determination                    Commission shall establish the scope of
                                               ■ 16. Amend § 210.42 by adding                                                                                the review and the issues that will be
                                               paragraph (a)(3), revising paragraph (e),               issued under § 210.42(a)(1) or (c),
                                                                                                       § 210.50(d)(3), § 210.70(c), or                       considered and make provisions for
                                               and adding paragraph (h)(7) to read as                                                                        filing of briefs and oral argument if
                                               follows:                                                § 210.75(b)(3) by filing a petition with
                                                                                                       the Secretary. A petition for review of               deemed appropriate by the Commission.
                                               § 210.42   Initial determinations.                      an initial determination issued under                 ■ 18. Amend § 210.47 by adding a
                                                  (a) * * *                                            § 210.42(a)(1) must be filed within 12                sentence after the third sentence and
                                                  (3) On potentially dispositive issues.               days after service of the initial                     revising the last sentence to read as
                                               The administrative law judge shall issue                determination. A petition for review of               follows:
                                               an initial determination ruling on a                    an initial determination issued under
                                                                                                                                                             § 210.47   Petitions for reconsideration.
                                               potentially dispositive issue in                        § 210.42(a)(3) must be filed within five
                                                                                                       (5) business days after service of the                  * * * Any party desiring to oppose
                                               accordance with a Commission order
                                                                                                       initial determination. A petition for                 such a petition shall file an answer
                                               pursuant to § 210.10(b)(3). The
                                                                                                       review of an initial determination                    thereto within five days after service of
                                               administrative law judge shall certify
                                                                                                       issued under § 210.42(c) that terminates              the petition upon such party. The
                                               the record to the Commission and shall
                                                                                                       the investigation in its entirety on                  Commission on its own initiative may
                                               file an initial determination ruling on
                                                                                                       summary determination, or an initial                  order reconsideration of a Commission
                                               the potentially dispositive issue
                                                                                                       determination issued under                            determination or any action ordered to
                                               designated pursuant to § 210.10(b)(3)
                                                                                                       § 210.50(d)(3), § 210.70(c), or                       be taken thereunder. The filing of a
                                               within 100 days of institution, or as
                                                                                                       § 210.75(b)(3), must be filed within 10               petition for reconsideration shall not
                                               extended for good cause shown.
                                                                                                       days after service of the initial                     stay the effective date of the
                                               *      *     *     *    *                               determination. Petitions for review of all            determination or action ordered to be
                                                  (e) Notice to and advice from other                  other initial determinations under                    taken thereunder or toll the running of
                                               departments and agencies. Notice of                     § 210.42(c) must be filed within five (5)             any statutory time period affecting such
                                               such initial determinations as the                      business days after service of the initial            determination or action ordered to be
                                               Commission may order shall be                           determination. A petition for review of               taken thereunder unless specifically so
                                               provided to the U.S. Department of                      an initial determination issued under                 ordered by the Commission.
                                               Health and Human Services, the U.S.                     § 210.50(d)(3) or § 210.70(c) must be                 ■ 19. Amend § 210.50 by:
                                               Department of Justice, the Federal Trade                filed within 10 days after service of the             ■ a. Revising paragraph (a)(4)
                                               Commission, U.S. Customs and Border                     initial determination.                                introductory text;
                                               Protection, and such other departments                     (d) * * *                                          ■ b. Redesignating paragraph (a)(4)(i)
                                               and agencies as the Commission deems                       (1) The Commission shall decide                    through (iv) as paragraphs (a)(4)(ii)
                                               appropriate by posting of such notice on                whether to grant, in whole or in part, a              through (v); and
                                               the Commission’s website. The                           petition for review of an initial                     ■ c. Adding new paragraph (a)(4)(i).
                                               Commission shall consider comments,                     determination filed pursuant to                         The revision and addition read as
                                               limited to issues raised by the record,                 § 210.42(a)(2) or § 210.42(c), which                  follows:
                                               the initial determination, and the                      grants a motion for summary
                                               petitions for review, received from such                determination that would terminate the                § 210. 50 Commission action, the public
                                               agencies when deciding whether to                       investigation in its entirety if it becomes           interest, and bonding by respondents.
                                               initiate review or the scope of review.                 the final determination of the                        *     *     *     *    *
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                                               The Commission shall allow such                         Commission, § 210.50(d)(3), or                          (a) * * *
                                               agencies 10 days after the posting of                   § 210.70(c) within 45 days after the                    (4) Receive submissions from the
                                               such notice of an initial determination                 service of the initial determination on               parties, interested persons, and other
                                               on the Commission’s website to submit                   the parties, or by such other time as the             Government agencies and departments
                                               their comments.                                         Commission may order. The                             with respect to the subject matter of
                                               *      *     *     *    *                               Commission shall decide whether to                    paragraphs (a)(1) through (3) of this
                                                  (h) * * *                                            grant, in whole or in part, a petition for            section.


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                                                                    Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations                                            21163

                                                  (i) After a recommended                                (iv) The filing party may withdraw the              Secretary of the Treasury and U.S.
                                               determination on remedy is issued by                    complaint as a matter of right at any                 Custom and Border Protection.
                                               the presiding administrative law judge,                 time before the Commission votes on                   *       *      *      *    *
                                               the parties may submit to the                           whether to institute an enforcement                      (3) If the petition requests
                                               Commission, within 30 days from                         proceeding. To effect such withdrawal,                modification or rescission of an order
                                               service of the recommended                              the filing party must file a written notice           issued pursuant to section 337(d), (e),
                                               determination, information relating to                  with the Commission.                                  (f), (g), or (i) of the Tariff Act of 1930
                                               the public interest, including any                      *     *     *     *     *                             on the basis of a licensing or other
                                               updates to the information supplied                       (4) * * *                                           settlement agreement, the petition shall
                                               under §§ 210.8(b) and (c) and 210.14(f).                  (iv) Issue a new cease and desist order             contain copies of the licensing or other
                                               Submissions by the parties in response                  as necessary to prevent the unfair                    settlement agreements, any
                                               to the recommended determination are                    practices that were the basis for                     supplemental agreements, any
                                               limited to 5 pages, inclusive of                        originally issuing the cease and desist               documents referenced in the petition or
                                               attachments. This provision does not                    order, consent order, and/or exclusion                attached agreements, and a statement
                                               apply to the public. Dates for                          order subject to the enforcement                      that there are no other agreements,
                                               submissions from the public are                         proceeding.                                           written or oral, express or implied
                                               announced in the Federal Register.                        (5) Prior to effecting any issuance,                between the parties concerning the
                                               *      *     *     *    *                               modification, revocation, or exclusion                subject matter of the investigation. If the
                                                                                                       under this section, the Commission                    licensing or other settlement agreement
                                               Subpart I—Enforcement Procedures                        shall consider the effect of such action              contains confidential business
                                               and Advisory Opinions                                   upon the public health and welfare,                   information within the meaning of
                                                                                                       competitive conditions in the U.S.                    § 201.6(a) of this chapter, a copy of the
                                               ■ 20. Amend § 210.75 by:                                economy, the production of like or                    agreement with such information
                                               ■ a. Removing paragraph (a);                                                                                  deleted shall accompany the motion. On
                                                                                                       directly competitive articles in the
                                               ■ b. Redesignating paragraph (b) as                                                                           motion for good cause shown, the
                                                                                                       United States, and U.S. consumers.
                                               paragraph (a) and:                                                                                            administrative law judge or the
                                               ■ i. Adding paragraphs (a)(1)(i) through                *     *     *     *     *
                                                                                                                                                             Commission may limit the service of the
                                               (iv);                                                   ■ 21. Amend § 210.76 by:                              agreements to the settling parties and
                                               ■ ii. Adding paragraph (a)(4)(iv);                      ■ a. Revising the section heading;                    the Commission investigative attorney.
                                               ■ iii. Revising newly redesignated                      ■ b. Revising paragraph (a)(1);                          (b) * * *
                                               paragraph (a)(5); and                                   ■ c. Adding paragraph (a)(3); and                        (1) The determination of whether to
                                               ■ c. Redesignating paragraph (c) as                     ■ d. Adding paragraphs (b)(1) through                 institute shall be made within 30 days
                                               paragraph (b).                                          (5).                                                  after the petition is filed, unless—
                                                  The additions and revisions read as                    The revisions and additions read as                    (i) Exceptional circumstances
                                               follows:                                                follows:                                              preclude adherence to a 30-day
                                                                                                                                                             deadline;
                                               § 210.75 Proceedings to enforce exclusion               § 210.76 Modification or rescission of                   (ii) The petitioner requests that the
                                               orders, cease and desist orders, consent                exclusion orders, cease and desist orders,
                                                                                                                                                             Commission postpone the
                                               orders, and other Commission orders.                    consent orders, and seizure and forfeiture
                                                                                                       orders.                                               determination on whether to institute a
                                                  (a) * * *                                                                                                  modification or rescission proceeding;
                                                  (1) * * *                                               (a) Petitions for modification or                  or
                                                  (i) The determination of whether to                  rescission of exclusion orders, cease and                (iii) The petitioner withdraws the
                                               institute shall be made within 30 days                  desist orders, and consent orders. (1)                petition.
                                               after the complaint is filed, unless—                   Whenever any person believes that                        (2) If exceptional circumstances
                                                  (A) Exceptional circumstances                        changed conditions of fact or law, or the             preclude Commission adherence to the
                                               preclude adherence to a 30-day                          public interest, require that an exclusion            30-day deadline for determining
                                               deadline;                                               order, cease and desist order, or consent             whether to institute a modification or
                                                  (B) The filing party requests that the               order be modified or set aside, in whole              rescission proceeding on the basis of the
                                               Commission postpone the                                 or in part, such person may request,                  petition, the determination will be made
                                               determination on whether to institute an                pursuant to section 337(k)(1) of the                  as soon after that deadline as possible.
                                               investigation; or                                       Tariff Act of 1930, that the Commission                  (3) If the petitioner desires to have the
                                                  (C) The filing party withdraws the                   make a determination that the                         Commission postpone making a
                                               complaint.                                              conditions which led to the issuance of               determination on whether to institute a
                                                  (ii) If exceptional circumstances                    an exclusion order, cease and desist                  modification or rescission proceeding in
                                               preclude Commission adherence to the                    order, or consent order no longer exist.              response to the petition, the petitioner
                                               30-day deadline for determining                         The Commission may also on its own                    must file a written request with the
                                               whether to institute an investigation on                initiative consider such action. The                  Secretary. If the request is granted, the
                                               the basis of the complaint, the                         request shall state the changes desired               determination will be rescheduled for a
                                               determination will be made as soon                      and the changed circumstances or                      date that is appropriate in light of the
                                               after that deadline as possible.                        public interest warranting such action,               facts.
                                                  (iii) If the filing party desires to have            shall include materials and argument in                  (4) The petitioner may withdraw the
                                               the Commission postpone making a                        support thereof, and shall be served on               complaint as a matter of right at any
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                                               determination on whether to institute an                all parties to the investigation in which             time before the Commission votes on
                                               investigation in response to the                        the exclusion order, cease and desist                 whether to institute a modification or
                                               complaint, the filing party must file a                 order, or consent order was issued. Any               rescission proceeding. To effect such
                                               written request with the Secretary. If the              person may file an opposition to the                  withdrawal, the petitioner must file a
                                               request is granted, the determination                   petition within 10 days of service of the             written notice with the Commission.
                                               will be rescheduled for whatever date is                petition. If the Commission makes such                   (5) The Commission shall institute a
                                               appropriate in light of the facts.                      a determination, it shall notify the                  modification or rescission proceeding


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                                               21164                Federal Register / Vol. 83, No. 89 / Tuesday, May 8, 2018 / Rules and Regulations

                                               by publication of a notice in the Federal               competitive conditions in the United                  determination on whether to institute an
                                               Register. The notice will define the                    States, and whether the person has a                  advisory proceeding in response to its
                                               scope of the modification or rescission                 compelling business need for the advice               request, the requester must file a written
                                               proceeding and may be amended by                        and has framed his request as fully and               request with the Secretary. If the request
                                               leave of the Commission.                                accurately as possible. Advisory opinion              is granted, the determination will be
                                               *     *     *   *     *                                 proceedings are not subject to sections               rescheduled for whatever date is
                                                                                                       554, 555, 556, 557, and 702 of title 5 of             appropriate in light of the facts.
                                               § 210.77   [Removed and Reserved]                       the United States Code.
                                                                                                          (1) The determination of whether to                   (4) The requester may withdraw the
                                               ■ 22. Remove and reserve § 210.77.
                                                                                                       issue and advisory opinion shall be                   request as a matter of right at any time
                                               ■ 23. Amend § 210.79 by revising
                                                                                                       made within 30 days after the petition                before the Commission votes on
                                               paragraph (a) to read as follows:
                                                                                                       is filed, unless—                                     whether to institute an advisory
                                               § 210.79   Advisory opinions.                              (i) Exceptional circumstances                      proceeding. To effect such withdrawal,
                                                  (a) Advisory opinions. Upon request                  preclude adherence to a 30-day                        the requester must file a written notice
                                               of any person, the Commission may,                      deadline;                                             with the Commission.
                                               upon such investigation as it deems                        (ii) The requester asks the                           (5) The Commission shall institute an
                                               necessary, issue an advisory opinion as                 Commission to postpone the                            advisory proceeding by publication of a
                                               to whether any person’s proposed                        determination on whether to institute an              notice in the Federal Register. The
                                               course of action or conduct would                       advisory proceeding; or                               notice will define the scope of the
                                               violate a Commission exclusion order,                      (iii) The petitioner withdraws the                 advisory opinion and may be amended
                                               cease and desist order, or consent order.               request.
                                               Any responses to a request for an                                                                             by leave of the Commission.
                                                                                                          (2) If exceptional circumstances
                                               advisory opinion shall be filed within                  preclude Commission adherence to the                  *      *    *    *     *
                                               10 days of service of the request. The                  30-day deadline for determining                         By order of the Commission.
                                               Commission will consider whether the                    whether to institute an advisory                        Issued: April 26, 2018.
                                               issuance of such an advisory opinion                    proceeding on the basis of the request,               Lisa Barton,
                                               would facilitate the enforcement of                     the determination will be made as soon
                                                                                                                                                             Secretary to the Commission.
                                               section 337 of the Tariff Act of 1930,                  after that deadline as possible.
                                               would be in the public interest, and                       (3) If the requester desires that the              [FR Doc. 2018–09268 Filed 5–3–18; 4:15 pm]
                                               would benefit consumers and                             Commission postpone making a                          BILLING CODE 7020–02–P
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Document Created: 2018-05-08 01:32:46
Document Modified: 2018-05-08 01:32:46
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective June 7, 2018. The rule amendments as stated herein shall apply to investigations instituted subsequent to the aforementioned date.
ContactMegan 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.
FR Citation83 FR 21140 
CFR Citation19 CFR 201
19 CFR 210
CFR AssociatedAdministration Practice and Procedure; Reporting and Record Keeping Requirements; Business and Industry; Customs Duties and Inspection; Imports and Investigations

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