On September 1, 1994, the Final Rules (Rules) of the U.S. International Trade Commission (ITC) went into effect. The Rules apply to all investigations and related proceedings under the Tariff Act of 1930 that are instituted after August 31, 1994. They will also apply to certain types of written submissions filed after August 31, 1994, such as motions for temporary relief and complaints requesting the institution of investigations or related proceedings.

The Rules were revised, in part, to conform with the Federal Rules of Civil Procedure (FRCP), as amended on December 1, 1993. Thus, for example, the Rules now contain provisions equivalent to FRCP Rules 11 and 37 which permit, inter alia, an award of sanctions where pleadings or discovery requests are not well-founded. In contrast to the FRCP, however, the new Rules do not include mandatory disclosure provisions, whereby all parties must initially disclose information concerning facts in contention. (See our Information Letter N.S. 182 for our report on amendments to the FRCP).

Other important Rule changes have been made in a variety of areas. For example, while under prior practice each party had 10 days to respond to discovery requests, the time now permitted to respond is set in each case by the presiding Administrative Law Judge (ALJ). There are new procedures requiring a party to report, prior to any disclosure, instances when it has been requested to disclose information deemed confidential under a Commission Administrative Protective Order. The ALJ's Initial Determination must now include recommended determinations on remedies and bonding, so that the parties must address these issues concurrently with the merits of the proceeding. The Rules also expand the ITC's role in enforcement proceedings, including a grant of authority to seek judicial enforcement of sanction orders.

Amendments to bring ITC proceedings under the Tariff Act into compliance with the General Agreement on Tariffs and Trade (GATT), proposed in part in response to the GATT Panel findings issued in In re Du Pont de Nemours/Akzo dispute on November 23, 1988, are being considered. (See the related discussion of U. S. legislation for implementation of GATT TRIPS Agreement in this Newsletter). In the meantime, it will be interesting to see how these new ITC Rules will affect ITC proceedings.