Further to our May 6, 2011 post concerning the ITC’s plan to reduce the role of the Office of Unfair Import Investigations (the “Commission Investigative Staff” or “OUII”) in Section 337 investigations, we have examined the issue further and provide an update on the rate at which OUII has been participating in newly-instituted Section 337 actions in the time since the Commission issued its May 2, 2011 notice. 

By way of background, OUII serves as an independent third party representing the public interest in Section 337 actions.  OUII’s principal task is to help create a complete record on all contested issues so that the Commission can properly enforce the provisions of Section 337.  This is necessary because, unlike with district court litigation, a Section 337 action “is not purely private litigation ‘between the parties’ but rather is an ‘investigation’ by the Government into unfair methods of competition or unfair acts in the importation of articles into the United States.”  Young Eng’rs, Inc. v. U.S. Int’l Trade Comm’n, 721 F.2d 1305, 1315 (Fed. Cir. 1983).  See our June 17, 2010 post for more details on the origins and historical role of OUII.

On May 2, 2011, the Commission issued a notice stating that the Commission was adopting a rule amendment whereby OUII would be reducing its role in certain Section 337 actions.  The notice followed the issuance of the Commission’s Supplement to the Strategic Human Capital Plan 2009-2013 (the “Report”) on January 18, 2011, which called for a reduction in OUII’s role in view of budget constraints.  The Report stated that the reduction in OUII’s role was “in no way an adverse reflection on the quality or importance of OUII’s past contributions, but rather an effort by the Commission to take a balanced approach to adequately funding the ITC’s statutory missions and meeting government-wide obligations in a prudent, fiscally responsible manner.”   

Based on our review, in the time since the rule amendment went into effect on May 2, 2011, the Commission has instituted seventy-seven (77) new Section 337 investigations (Inv. Nos. 337-TA-772 through 337-TA-848).  The Notices of Investigation (“NOI”) for these seventy-seven investigations indicate that OUII has not participated as a party in seventeen (17) of them:  Inv Nos. 337-TA-772, 337-TA-784, 337-TA-785, 337-TA-792, 337-TA-798, 337-TA-801, 337-TA-802, 337-TA-810, 337-TA-819, 337-TA-821, 337-TA-830, 337-TA-834, 337-TA-837, 337-TA-840, 337-TA-844, 337-TA-845, and 337-TA-847.  Further, it appears that in ten (10) additional investigations instituted after the rule amendment went into effect (Inv. Nos. 337-TA-774, 337-TA-778, 337-TA-782, 337-TA-783, 337-TA-793, 337-TA-807, 337-TA-818, 337-TA-820, 337-TA-825, and 337-TA-841), OUII issued a notice after the issuance of the NOI indicating that it would not participate or would cease participating in the investigation.  We note that OUII has also issued notices indicating that it would cease participating in certain investigations that were already pending as of May 2, 2011, but our analysis here is limited to new investigations instituted after the rule amendment went into effect. 

In view of the above, thus far, OUII appears to have participated as a party in 50 of the 77 investigations that have been instituted since the rule amendment went into effect on May 2, 2011.  This translates into a participation rate of roughly 65%.