By Eric Schweibenz
On May 2, 2011, the International Trade Commission (the “Commission”) issued a notice in the Federal Register stating that the Commission is adopting a rule amendment whereby the Office of Unfair Import Investigations (the “Commission Investigative Staff” or “OUII”) will be reducing its role in Section 337 actions.  In particular, the notice states that, going forward, OUII will not participate in a subset of Section 337 cases and will only participate selectively in another subset of cases.  By way of background, see our June 17, 2010 post for more details on the origins and historical role of OUII.

The May 2 notice follows the issuance of the Commission’s Supplement to the Strategic Human Capital Plan 2009-2013 (the “Report”) on January 18, 2011, which called for a reduction in OUII’s role in view of budget constraints.  The Report states that, going forward, “OUII will give the highest priority to certain functions that draw upon its particular expertise while eliminating or reducing efforts devoted to other functions.”  To that end, OUII will continue to review draft complaints prior to filing and advise the Commission on whether to institute investigations.  However, after an investigation is instituted, the Report requests that “OUII place the highest priority on issues unique to section 337 and continue its efforts:  a) to ensure that the investigation is fully developed, b) to resolve procedural disputes without the need to resort to the presiding ALJ, and c) to facilitate settlement.”

Accordingly, the Report states that “in certain investigations, OUII will participate in a selective manner on those issues on which it is able to provide the greatest added value and expertise.”  Additionally, “OUII will cease to be a party altogether in a subset of section 337 cases, which are less likely to draw upon its expertise.”

The Report states that these changes are “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.”

In view of the above, the Report states that the Commission will allow a vacant OUII supervisory attorney slot to be filled, and two OUII staff attorneys that were brought on pursuant to over-hire authority, to remain.  However, the number of OUII staff attorneys will be allowed to fall from the current 17 (which includes the two over-hires) to 15 through attrition.

The new rule took effect as of May 2, the date of the notice.  According to the notice, “[t]he new rule will have no substantive effect on Commission practice in conducting Section 337 investigations” but “will allow OUII the flexibility to reassign attorneys to cases as necessary without having to publish notices announcing the change in the Federal Register.”