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ITC Litigation

ITC Proposes New Rules Governing Section 337 Investigations

October 2, 2015

ITC Litigation

ITC Proposes New Rules Governing Section 337 Investigations

October 2, 2015

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Proposal codifies several existing practices and introduces some new ones

On September 25, the USITC published in the Federal Register[1] a notice of proposed rulemaking (“NOPR”) with respect to section 337 investigations.   Many of the proposed new rules, if adopted, will codify practices that the Commission and ALJ’s have already utilized, albeit sometimes in an ad hoc manner.  Others aim to improve the transparency and efficiency of section 337 investigations, hopefully leading to reduced motions practice.   This is the first in a series of blog posts addressing the proposed rules.

Formalizing the 100-day program – In March 2013, the ITC instituted the Laminated Packaging investigation[2] in which the Commissioners directed the presiding ALJ to conduct an early hearing and issue an early decision on the question of the economic prong of the domestic industry requirement.  Later that year, the Commission issued a notice that it was instituting a pilot program to test whether certain Section 337 investigations are amenable to early disposition under a procedure like that used inLaminated Packaging.  The Commission has conducted one other investigation[3] under what has been dubbed the “100-day” pilot program, and is now proposing to make it a formal part of the Commission’s rules of practice and procedure.  Under the “100-day” rules:

  • The Commission, through its notice of investigation, could order the presiding ALJ to conduct an expedited proceeding on a specified dispositive issue. Proposed rule 210.10(b)(3).  Additionally, the ALJ, within 30 days of institution of an investigation, may issue an order designating an issue for expedited consideration.  Proposed rule 210.14(i).  Within 30 days of institution, any party may move for an order designating an issue for expedited consideration.[4] Proposed rule 210.22.
  • According to the NOPR, the ALJ would have the discretion to stay discovery into other areas during the pendency of the 100 day proceeding.
  • The ALJ would file an initial determination on the issue within 100 days of its being so designated (a period which the Commission or ALJ may extend for good cause). Proposed rule 210.43(a)(3).  A petition for review of this ID would be due 5 calendar days after its service with responses due 3 days thereafter.  Proposed rules 210.43(a)(1) and 210.43(c).  The Commission would decide whether to review the ID within 30 days of its service.

It is clear that the Commission enjoys the flexibility provided by the availability of the 100-day procedure and that it would like the procedure to be a formal part of its rules of practice.  The proposed rule does not provide a mechanism whereby a respondent named in a complaint can suggest before institution that an issue be designated for the procedure.  However, presumably this can be done by letter to the Commission prior to the institution of the investigation.

[1] 80 Fed. Reg. 57553

[2] Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, Inv. No. 337-TA-874

[3] Certain Audio Processing Hardware and Software and Products Containing Same, Inv. No. 337-TA-949, 80 Fed. Reg. 14159 (March 18, 2015)

[4] Presumably, and notwithstanding the literal language of the proposed rule, the moving party would have to file its motion sufficiently in advance of the 30 day deadline in order to provide the ALJ sufficient time to issue his or her decision before the passing of the deadline.​

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Thomas "Monty" Fusco | Of Counsel

Thomas S. "Monty" Fusco is Of Counsel in the Washington, DC, office of Fish & Richardson, where his practice focuses on Section 337 matters at the International Trade Commission (ITC). Prior to joining the firm he worked at the ITC for 25 years, focusing for the...

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