By Eric Schweibenz and Sasha Rao
For purposes of assessing the ongoing impact of the Commission’s 2011 plan to reduce the role of the Office of Unfair Import Investigations (“OUII”) in Section 337 investigations, we reviewed OUII’s participation rate in newly-instituted Section 337 actions over approximately the last three years.

By way of background, OUII serves, inter alia, as an independent third party representing the public interest in Section 337 actions. One of OUII’s tasks is to help create a complete record on all contested issues so that the Commission can properly enforce the provisions of Section 337. This is important because, unlike with district court litigation, a Section 337 action “is not purely private litigation ‘between the parties’ but rather is an ‘investigation’ by the Government into unfair methods of competition or unfair acts in the importation of articles into the United States.” Young Eng’rs, Inc. v. U.S. Int’l Trade Comm’n, 721 F.2d 1305, 1315 (Fed. Cir. 1983).

On May 2, 2011, the Commission issued a notice adopting a rule amendment whereby OUII would be reducing its role in certain Section 337 actions. The notice followed the issuance of the Commission’s Supplement to the Strategic Human Capital Plan 2009-2013 on January 18, 2011, which called for a reduction in OUII’s role in view of budget constraints. The Report stated that the reduction in OUII’s role was “in no way an adverse reflection on the quality or importance of OUII’s past contributions, but rather an effort by the Commission to take a balanced approach to adequately funding the ITC’s statutory missions and meeting government-wide obligations in a prudent, fiscally responsible manner.”

Based on our review, between 2013 and today, the Commission has instituted approximately 171 new Section 337 investigations (Inv. Nos. 337-TA-862 through 337-TA-1032). The Notices of Investigation for these 171 investigations indicate that OUII has not participated as a party in 39 instances. Thus, the OUII has participated as a party in 132 of the 171 investigations which translates into an OUII participation rate of roughly 77% over that approximate three-year time period.

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