McDermott Will & Emery

The US International Trade Commission (ITC) amended its Rules of Practice and Procedure concerning investigations under § 337 of the Tariff Act (19 USC § 1337). While some amendments provide only technical corrections or clarifications, others may have a significant impact on § 337 investigations. The most notable changes include rules governing the severance of a complaint and the “100-day” program. The amendments became effective June 7, 2018, and apply only to investigations instituted after that date. 

One Complaint May Be Severed into Multiple Investigations

Under the amended rules, an administrative law judge (ALJ) or the ITC may sever a single complaint into multiple investigations. A party may also move to sever a complaint. The rules did not set forth specific factors to weigh in a severance analysis, but the ITC explained that severance may be appropriate if a 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 it proceeds as a single case, would be unduly unwieldy or lengthy.”

ALJs Must Rule on Dispositive Issues Within 100 Days

The amended rules codified the 100-day pilot program, which provides for an early determination of potentially dispositive issues. Under the program, the ITC identifies investigations that may present dispositive issues. The ALJ then conducts expedited fact-finding and holds an early hearing before issuing a decision. The amended rules require an ALJ to issue a ruling within 100 days of the institution of an investigation. The ITC also clarified that the ALJ may not select a dispositive issue to include in the 100-day proceeding.

Pre-Institution Proceedings Are Generally Prohibited

The ITC clarified that filing motions before the ITC during pre-institution proceedings is prohibited. The amended rules specified one exception: a party may file a motion for temporary relief pursuant to 19 CFR § 210.53 before an institution decision.

Rules on Subpoena Objections and Investigation Scope Are Aligned with Existing Rules

Consistent with Fed. R. Civ. P. 45, the amended rules provide that a party may move to quash a subpoena or file subpoena objections. The party must act within 10 days after receiving the subpoena. If an objection is made, the party requesting the subpoena may request judicial enforcement upon reasonable notice to other parties. The ITC explicitly correlated the requirements of proposed rule 210.10(b)(1) and current rule 19 CFR § 210.12(a)(12). The new rule now requires a notice of investigation to specify in “plain language” the accused products subject to investigation. This change aligns the scope of the investigation as stated in the notice with the scope as stated in the complaint under Rule 210.12(a)(12).

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