The public interest test in Section 337 cases historically has been of limited importance, playing a role in only a small number of cases. This may be about to change. On October 1, 2010, the United States International Trade Commission (the ITC) published a notice of proposed rulemaking (NPRM) in the Federal Register providing notice and an opportunity to comment on proposed new rules relating to public interest determinations in investigations under Section 337 of the Tariff Act of 1930. Currently, Section 337 requires the ITC to determine whether public interest factors preclude relief, but does not allow the Administrative Law Judge (ALJ), who takes evidence during the investigation, to address the public interest absent a Commission order to do so. The proposed new rules make several important changes in this regard:

  • The NPRM proposes to require new complaints to address how the issuance of the requested exclusion order would affect the public interest. The complaint would have to:
    • Explain how the articles potentially subject to the exclusion and cease and desist orders are used in the United States;
    • Identify any public health, safety or welfare conditions in the United States relating to the potential orders;
    • Indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the orders; and
    • Indicate whether the Commission, complainants’ licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to an exclusion order or cease and desist order within a commercially reasonable time.
  • The NPRM proposes that the answer to the complaint address these same issues and/or respond to the public interest allegations in the complaint.
  • The NPRM proposes to require the Commission to publish notice of each new complaint filed under section 337 and to solicit comments on the public interest impact of any exclusion order sought in the complaint. The Commission adopted this practice by means of a Federal Register notice on July 8, 2010; the NPRM proposes to codify this practice in the form of a rule.
  • The NPRM proposes to authorize the Commission to instruct the ALJ to take evidence on the public interest and address the public interest in its initial determination on violation and recommended determination on remedy (ID/RD). The ALJ would have the discretion to conduct discovery on the public interest. This is potentially a very significant change. The NPRM also proposes to require the parties to submit comments and information to the Commission on the public interest within 30 days after the ALJ’s ID/RD.

Comments on the proposed new rules are due by November 30, 2010. The NPRM is available at: