ITC pilot program announced

On June 24, 2013, the U.S. International Trade Commission announced a pilot program to test whether certain Section 337 investigations are amenable to early disposition. The stated purpose of the program is to identify, at institution, investigations that have a potentially dispositive issue and direct the presiding judge to rule on that issue early in the investigation, i.e., within 100 days from institution. Early resolution of investigations would offer a substantial savings to both the Commission and private parties' resources.

In making this announcement, the Commission has signaled that it is prepared to repeat its earlier actions in Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, Inv. No. 337-TA-874. Apparently concerned with whether the complainant could satisfy the domestic industry requirement of Section 337, the Commission ordered at the very commencement of the Laminated Packaging investigation that "the presiding Administrative Law Judge shall hold an early evidentiary hearing, find facts, and issue an early decision" with respect to the economic prong of the domestic industry requirement. 78 Fed. Reg. 19007, 19008 (March 28, 2013). Several other procedures were put in place to expedite the proceedings and possibly realize savings:

  • Regardless of whether his decision was positive or negative, the judge was to issue the decision as an initial determination, subject to review by the Commission;
  • Petitions for review of this ID would be due in 5 days of service
  • Response to any petitions for review would be due in 3 days;
  • The Commission stated it expected the ID in 100 days from institution, but the ALJ "may grant a limited extension for good cause shown." Id.

In addition, the Commission ordered that issuance of an early initial determination finding no domestic industry "shall stay the investigation unless the Commission orders otherwise." Any other decision shall not stay the investigation. Id.

This new procedure is a more aggressive approach than the Commission has followed in the past. In previous investigations, the Commission, in its notice of investigation, noted the presence of certain issues the presiding ALJ may wish to consider at an early date, and that his decision would be treated as an initial determination. Examples are Certain Drill Bits and Products Containing Same, Inv. No. 337-TA-844 (importation) and Certain Rubber Antidegradants, Antidegradant Intermediates And Products Containing The Same, Inv. No., 337-TA-652 (preclusion). By contrast, under the new procedure the Commission orders the judge to consider the issue, and to do so within a very short time frame. Moreover, the previously-used procedure did not provide for staying the investigation should the judge rule against the complainant.

An important practice point is: a named respondent who believes that a threshold issue, such as domestic industry, importation or standing, may be readily disputed should advise the Commission of that fact shortly after the complaint is filed. Although the ITC did not set a deadline for such a submission, a request for expedited consideration should likely be submitted no later than the deadline for public interest filings pursuant to Rule 210.8(c) (19 C.F.R. 210.8(c)). An early request affords the Commission adequate time to consider whether to include instructions for an expedited proceeding in its notice of investigation.