On October 31, 2016, Judge Essex issued an Initial Determination in Certain Stainless Steel Products, Certain Processes for Manufacturing or Related to Same and Certain Products Containing Same denying Complainant Valbruna Slater Stainless, Inc., Valbruna Stainless Inc., and Valbruna S.p.A.’s (collectively, “Valbruna”) motion to initiate a bond forfeiture proceeding. Judge Essex held that a bond forfeiture proceeding cannot be instituted until after all appeals of the Commission’s violation decision have been exhausted.

The Case

On May 25, 2016, the Commission issued its determination which found Viraj Profiles Limited (“Viraj”) in violation of Section 337. Concurrently, the Commission issued a limited exclusion order and cease and desist order directed to Viraj’s accused products. The Presidential review period expired on July 24, 2016. On August 15, 2016, Viraj instituted an appeal of the Commission’s determination to the United States Court of Appeals for the Federal Circuit. No. 16-2482. Forty-five days later, Valbruna filed a motion requesting that the ALJ initiate bond forfeiture proceedings in accordance with l9 U.S.C. § l337(j)(3) and l9 C.F.R.§ 210.50(d). Rule 210.50(d) states in pertinent part:

If one or more respondents posts a bond pursuant to 19 U.S.C. 1337(e)(l) or 1337(j)(3), proceedings to determine whether a respondent’s bond should be forfeited to a complainant in whole or part may be initiated upon the filing of a motion, addressed to the administrative law judge who last presided over the investigation, by a complainant within 90 days after the expiration of the period of Presidential review under 19 U.S.C. l337(j), or if an appeal is taken from the determination of the Commission, within 30 days after the resolution of the appeal. If that administrative law judge is no longer employed by the Commission, the motion shall be addressed to the chief administrative law judge.

19 C.F.R. § 2l0.50(d)(l)(i). Rule 210.50(d) contemplates two scenarios following the Presidential review period. Under the first scenario, the complainant receives ninety days to file a motion to initiate forfeiture proceedings. Judge Essex explained that the rule was amended in 2008 to increase the number of days from thirty to ninety. According to the Commission’s comments during the rulemaking process, the additional sixty days would account for the time during which an appeal to the Federal Circuit could be filed. If, after sixty days, no appeal was filed, the complainant would then have thirty days remaining within which to move to initiate forfeiture proceedings.

Judge Essex further noted that, under the second scenario, the Commission’s determination is appealed to the Federal Circuit, in which case the complainant receives thirty days to move for initiation of forfeiture proceedings after the resolution of the appeal. Because Valbruna’s motion was filed during the pendency of Viraj’s appeal, Judge Essex held that Valbruna had “jumped the gun” and accordingly denied the motion.