On July 2, 2012, the International Trade Commission (ITC) published a notice of proposed rulemaking in which it proposed to amend its Rules of Practice and Procedure in order to clarify and harmonize certain provisions and to address concerns that have arisen in ITC practice. 77 Fed. Reg. 41120-41132 (July 12, 2012). These rule changes were proposed in accordance the ITC’s “Plan for Retrospective Analysis of Existing Rules,” which established a process under which the ITC conducts a periodic review in order to determine whether any significant regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving regulatory objectives. The proposal includes changes to ITC procedure with respect to the initiation and conduct of Section 337 investigations, including rules of general applicability, as well as specific rules concerning pleadings, motions, discovery, initial determinations, petitions for review, temporary relief proceedings and enforcement proceedings. Highlighted below are some of the more significant proposed rule changes.
Changes to Pleading Requirements
The proposed rule changes include certain modifications to the pleading requirements for complaints filed with the ITC. In particular, the ITC proposes requiring the complainant to plead domestic industry allegations in the complaint with more particularity by providing a “detailed” description of the alleged domestic industry that exists or is in the process of being established. Additionally, the ITC has proposed a rule that would require the complainant to specify in the complaint whether it is requesting relief in the form of a general exclusion order, a limited exclusion order, and/or a cease and desist order. Furthermore, the ITC has proposed requiring the complainant to identify the accused products with a clear statement in “plain English” in order to put the public on notice of the specific types of products involved.
Changes to Process for Institution and Consolidation of Investigations
The ITC has also proposed to formalize the process for consolidation of Section 337 investigations, which would allow administrative law judges (ALJ) the discretion to consolidate investigations, if both investigations are before the same ALJ, and would allow the chief ALJ to consolidate investigations if the investigations are before different ALJs and both ALJs agree that consolidation is appropriate. In addition, the ITC has proposed a rule change that would allow the Commission to restart the normal 30-day period for determining whether to institute an investigation if the complainant makes substantial amendments to the complaint, such as naming additional proposed respondents or making additional infringement allegations, prior to institution.
Limitations on Discovery
The ITC has also proposed certain limitations on discovery in its notice of proposed rulemaking. Particularly, in accordance with the Federal Rules of Civil Procedure, the proposed rule changes would limit complainants as a group to a maximum of five fact depositions per respondent, or no more than 20 fact depositions, whichever is greater, and respondents as a group to a maximum of 20 fact depositions total. If the Commission investigative attorney is a party, he or she may take a maximum of 10 fact depositions and is permitted to participate in all depositions taken by any parties in the investigation. In addition, the ITC has proposed to limit the number of interrogatories that may be served by each party to a maximum of 175, which is consistent with the ground rules of several of the ALJs.
Practice Note: The ITC has requested that any written comments concerning these proposed rule changes be submitted by September 10, 2012.