On July 2, 2012, the International Trade Commission (“Commission”) published a Notice of proposed rulemaking, announcing amendments to its Rules of Practice and Procedure.  According to the Notice, the amendments are necessary to make certain technical corrections, to clarify certain provisions, to harmonize different parts of the Commission’s rules, and to address concerns that have arisen in Commission practice.

The notice states that the amendments are part of a Plan for Retrospective Analysis of Existing Rules published by the Commission on February 13, 2012, at 77 Fed. Reg., 8114, which in turn was in response to Executive Order 13579 of July 11, 2011, and established a process under which the Commission will periodically review, and if necessary, modify, streamline, expand, or repeal its regulations so as to make “them more effective or less burdensome in achieving regulatory objectives.” 

The Notice groups the proposed amendments by topic.  We do not address each of proposed amendments, but instead summarize the more significant proposals as follows:

Proposed Rules Of General Applicability

Section 210.5 is amended to standardize the time for an administrative law judge (ALJ) or the Commission to issue a public version of a confidential order, initial determination, opinion, or other document.  Presently, the time to do so varies, and the Commission proposes to amend section 210.5 such that the ALJ or Commission issues a public version of the confidential document within 30 days after issuing a confidential document.  The deadline can be extended for good cause by order.

Section 210.8 provides for the filing of the complaint and for filings by the complainant, respondents, and members of the public on public interest issues raised by the complaint. The Commission proposes amending this rule to require a complainant, proposed respondent, or member of the public to file a public version of a submission at the same time that it files a confidential submission.

Proposed Rules Regarding Pleadings

The Commission proposes to amend section 210.12, regarding the content of a complaint.  Specifically, it proposes amending 210.12(a)(6)(i)-(ii) to require the complainant to plead with particularity whether it alleges a domestic industry that exists or a domestic industry that is in the process of being established.  In addition, the Commission proposes to amend 210.12(a)(11) to require the complainant to specify if it is requesting a general exclusion order, a limited exclusion order, and/or cease and desist orders under 19 U.S.C. § 1337(d), (f) or (g).  The Commission further proposes adding a paragraph 210.12(a)(12) 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 type of products involved. As an example, the notice states that the caption of an investigation might refer to “certain electronic devices,” but the complaint would provide a further statement to identify the type of products involved as “mobile devices, tablets, or computers.”

The Commission also proposes amending Section 210.14, which generally provides for amendments to pleadings and the notice of investigation. More specifically, the Commission proposes to standardize its process for consolidating related investigations.  The proposed rule would add a new paragraph (f) to provide that (i) the Commission may consolidate investigations, (ii) the presiding ALJ may consolidate the investigations if the affected investigations are before the same ALJ, and (iii) the chief ALJ may consolidate investigations if the investigations are before different ALJs and the ALJs agree that consolidation is appropriate.

The Commission further proposes amending 210.14 to address the increasingly common practice of complainants filing substantial amendments to complaints during the pre-institution review period.  The notice states that substantial amendments to complaints (such as naming additional proposed respondents, additional patents or patent claims) during the pre-institution review period are problematic because they (i) complicate the Commission’s ability to solicit and obtain comments concerning the public interest implications of the complaint in a timely manner, (ii) place additional demands on Commission resources to assess the amendments and/or processing extensions before the conclusion of the original institution period, and (iii) effectively reduce the 30-day period proposed respondents normally have to review the allegations against them. The proposed rule adds a new sentence at the end of rule 210.14(a).  It provides that if a complainant significantly amends a complaint prior to institution, the amendment will restart the normal 30-day process for determining whether to institute the investigation.

Proposed Rules Regarding Motions

With regarding to motions for default, complainants have failed in certain investigations to follow the two step approach in section 210.16(b)(1) to first move for an order to show cause why the respondent should not be held in default.  Then, only if the respondent fails to make this showing, would the ALJ issue an order finding the respondent in default.  Accordingly, the Commission proposes to split section 210.16(b)(1) into two parts, Section 210.16(b)(1)(A) and Section 210.16(b)(1)(B), to emphasize these two separate steps.

With respect to parties failing to act other than by failing to appear and answer the complaint and notice of investigation, the Commission proposes amending Section 210.17 to provide that a respondent who initially appears but who later wishes to default may file a notice of its intention to default. This noticed default will be treated the same as other failures to act in this section, such that the ALJ or Commission may draw the same adverse inferences that can be traditionally drawn per this section of the statute.

Section 210.21(b) regards motions to terminate and investigation due to settlement, and the Commission proposes to amend this section to clarify that the parties must provide a copy of any documents referenced in the settlement agreements because these documents are considered part of the settlement agreement.  With regard to terminations by consent orders, the Commission proposes revising section 210.21(c) to clarify the terms to be included in the consent order, and that although consent order stipulations can contain additional terms, the consent order itself cannot add terms beyond those provided for in this section, and that the Commission will not enforce any such additional terms.  The Commission also proposes that parties filing motions to terminate by consent order must submit copies of any agreements with other parties, for example, any settlement or licensing agreements.

Proposed Rules Regarding Discovery

Section 210.28, regarding depositions contains two important proposed amendments.  With respect to deposition notices directed to parties (i.e., corporations), the present rule does not provide a deadline for the party to respond.  The Commission proposes applying the same ten-day deadline that presently applies to interrogatories and documents, such that a party will have ten days to respond and object to a corporate deposition notice. 

The Commission further proposes to limit the number of depositions taken as follows:

  • Complainants as a group can take the greater of five fact depositions per respondent, or no more than 20 fact depositions;
  • The respondents, as a group, can take no more than 20 fact depositions;
  • The Commission investigative attorney can take a maximum of 10 fact depositions, and can participate in all depositions noticed by the parties.

The ALJ, upon motion, may increase these deposition numbers for good cause.

With respect to interrogatories, the Commission proposes amending section 210.29 to follow the ground rules of several ALJs, and limit the number of interrogatories that can be served on any other party to 175, including subparts, absent stipulation or an order upon motion to the ALJ for good cause.

Proposed Rules Regarding Determinations And Actions Taken

Section 210.43 pertains to petitions for review of an initial determination of an ALJ to the Commission.  The Commission proposes to make more explicit that attempts to evade page limits though reference to previously filed pleadings will not be tolerated by reiterating that all arguments not contained within the petition or its response are waived.  Section 210.43(a) is also amended to correct a technical error, and state that the deadline for filing petitions to review an initial determination that terminates an investigation in its entirety on summary determination is ten calendar days, rather than ten business days.  The Commission further proposes to amend section 210.43(a) to provide that petitions for review of enforcement initial determinations in formal enforcement proceedings are due 10 days after the service of the enforcement initial determination, and responses thereto are due 5 business days after the service of the petitions for review.

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Practitioners should carefully review the entirety of these proposed rules.  To be assured of consideration, written comments to the proposed rules must be received by 5:15 p.m. within 60 days after publication of the notice of proposed rulemaking.