On May 12, 2021, the U.S. International Trade Commission (USITC) established a pilot program allowing its Administrative Law Judges (ALJs) to issue interim initial determinations (IDs).Under the program, presiding ALJs may hold an evidentiary hearing and receive briefings on one or more discrete issues prior to the main evidentiary hearing in order to fully develop the factual record to resolve discrete issues. The ALJ will then issue an interim ID on the discrete issues, which will be subject to petitions for review and response thereto as well as prompt Commission decisions on whether to review the interim ID and resolution of any review.

The pilot program as outlined by the USITC’s press release will operate under the following parameters:

  • Presiding ALJs will be able to put issues within the program as they deem appropriate. It will be within each ALJ’s discretion to allow parties to file motions to put particular issues within the program that they believe will resolve the investigation expeditiously or facilitate settlement.
  • The presiding ALJ will fully develop the factual record and arguments on the discrete issues within the program, including, as appropriate, through an evidentiary hearing and briefing on those issues.
  • Interim IDs will be based on a full evidentiary record and all applicable legal standards and burdens of proof, including the requirements of the Administrative Procedure Act (APA).
  • Interim IDs are to be issued no later than 45 days before the scheduled start of the main evidentiary hearing in the investigation.
  • The presiding ALJ may determine to stay discovery on other issues during the interim ID process, taking into account the Commission’s obligation to complete investigations expeditiously and with a view toward avoiding extension of the target date.
  • The presiding ALJ may also determine to place the remaining procedural schedule of an investigation on hold while an interim ID is before the Commission, again taking into account the need to complete investigations expeditiously and avoiding an extension of the target date.
  • Petitions for review of interim IDs will be due 8 calendar days after the interim ID issues; responses will be due 5 business days later.
  • The Commission will normally determine whether to review an interim ID within 45 days of issuance, and resolve any review within another 45 days, but can set a different time frame for good cause.

The Commission created the program in an effort to improve section 337 investigations—which relate to unfair practice in import trade, primarily patent infringement allegations as well as infringements of trademarks, copyrights, mask works, and other forms of intellectual property, misappropriation of trade secrets, and other unfair practices. The issuance of interim IDs is also expected to resolve significant issues in advance of the main evidentiary hearings and even resolve entire disputes between the parties.

Notably, the pilot program will apply to all investigations on or after May 21, 2021, as well as to prior investigations at the discretion of the presiding ALJ. After a two-year period, the USITC will review the program and will decide whether to permanently allow interim IDs.

The Press Release is available here.

For more information about 337 investigations please contact our team.