U.S. International Trade Commission Proposes Amendments to its Rules of Practice and Procedure

On March 28, the U.S. International Trade Commission, an independent, quasi-judicial federal agency with broad authority in the area of import trade, published in the Federal Register a notice of proposed rules and amendments to the rules of practice and procedure governing proceedings before the ITC. These rules and amendments, if ultimately adopted, would represent the first amendments to the ITC’s rules in several years. The proposed changes range from minor correction of typographical errors and implementation of gender-neutral language to the permanent adoption of electronic filing standards implemented during the pandemic, as well as changes that would more align various aspects of the ITC’s Section 337 investigations with federal district court litigation.

This alert highlights some of the more notable proposed amendments and rule changes as they pertain to Section 337 unfair import investigations before the Commission.

E-Filing (19 C.F.R. § 201.8). Historically, most filings at the Commission have required paper copies even where the initial filing was done electronically. Early in the pandemic, the ITC implemented temporary e-filing rules suspending most requirements about the filing of paper copies and allowing electronic filing and service. The proposed rules would make most of these temporary rules permanent. However, those filing Section 337 complaints (as well as amendments or supplements thereto) would still be required to file paper copies with the ITC.

Clarifying Pre-Institution Comment Submission Requirements (19 C.F.R. § 210.8).

While the Commission historically gives notice to the public when it receives a Section 337 complaint, it typically has asked for comments from the public on “the public interest” only. The proposed rules would clarify that, under Rule 210.8(c), any member of the public, including private parties or government agencies, may file a pre-institution statement addressing any issues that the Commission should consider when deciding whether to institute a Section 337 investigation. Consequently, Rule 210.8(c)(2) allows a complainant to reply to any such submission within three calendar days. The proposed rules also aim to clarify and eliminate ambiguity surrounding the three-day deadline under Rule 210.8(c)(2): the three-day period includes Saturdays, Sundays, and federal legal holidays unless the last day falls on any of these days, and in that case, the period runs until the following business day.

Increased Transparency/Confidentiality Designations (19 C.F.R. § 210.10). In recent years, some litigants at the Commission have come under scrutiny for excessive redaction of material in filings—for example, in some cases complainants have redacted the identity of the entity or entities relied upon for purposes of the domestic industry requirement. The proposed rules would change Rule 210.10 to provide that the Commission will delay institution if it determines that there have been excessive designations of confidentiality in the complaint and/or supporting exhibits. In such a case, the Commission will require revised designations, and the 30-day period for deciding whether to institute an investigation will begin to run after the new, nonconfidential complaint and/or supporting exhibits are filed, as opposed to the filing of the original, over-designated documents.

Requiring Additional Information from Certain Complainants (19 C.F.R. § 210.12). Depending upon the underlying claim at issue in a given investigation, the proposed rules would require that a complainant include certain additional information in its complaint. For example, Rule 210.12(a)(6)(i) is reorganized to distinguish the requirements to support a complaint based on an existing domestic industry to one based on a domestic industry in the process of being established. The proposed rules also add specificity as to what must be included in a complaint for those raising claims of patent infringement or trade secret misappropriation, or when the complaint is seeking to obtain a broad general exclusion order.

Aligning ITC Discovery with District Court Practice. The ITC may adjudicate claims, such as patent infringement, that may also be brought in district court. However, the Federal Rules of Civil Procedure (Fed. R. Civ. P.) do not govern Section 337 proceedings. Several of the new proposed rules are designed to align ITC discovery practice with district court practices concerning requiring proportionality of discovery (Rule 210.27), limitations of number and duration of depositions (Rule 210.28), and written objections to document requests (Rule 210.30).

Specifically, the ITC proposes to eliminate from current Rule 210.27 the reference to information that “appears reasonably calculated to lead to the discovery of admissible evidence,” and is inserting language that emphasizes that the discovery sought must be proportional to the needs of the investigation. In the context of fast-paced Section 337 investigations and short fact discovery periods, this change may be welcomed by litigants and attorneys alike.

For depositions, the ITC proposes to amend Rule 210.28 and adopt a presumptive durational limit of a single, seven-hour deposition per deponent, which is similar to what is currently included in Fed. R. Civ. P. 30. These limitations would apply only to depositions of individuals; for purposes of the seven-hour limit, each individual designated in response to a notice of deposition of a party would count as a separate deponent. The ITC also proposed to change the limits on the number of depositions for complainants to a total of 20 fact depositions overall, regardless of the number of respondents, and to clarify that both party and non-party depositions count toward that limit.

Finally, the ITC proposes to amend Rule 210.30 regarding written objections to document requests to require that any objection to a document request must state whether any responsive materials are being withheld on the basis of the objections. This proposed amendment aligns Rule 210.30 with the 2015 amendments to Fed. R. Civ. P. 34, governing written objections to document requests in district court.

Sanctions. The proposed rules also add additional clarification on when and how sanctions may be imposed in Section 337 proceedings. The rule for the imposition of sanctions is dictated by Rule 210.25, which now aims to eliminate confusion regarding the period of filing for sanctions. The proposed rules also change sanctions for failure to cooperate in discovery (Rule 210.33) and make it more coextensive with Fed. R. Civ. P. 37.

The ITC is interested in receiving comments from interested parties on the proposed rules and amendments. Any comments must be received by 5:15 p.m. on May 20, 2024, and must be submitted via www.regulations.gov using the MISC-049 docket number. The complete proposed rule changes and amendments can be found here. If you are interested in submitting comments or learning more about the ITC’s proposed rules, please contact Ropes & Gray IP Litigation partner Matt Rizzolo.