By Eric Schweibenz
On October 19, 2011, the International Trade Commission (the “Commission”) published a Notice of Final Rulemaking (“Notice”) to amend rules “to aid the Commission in identifying investigations that require further development of public interest issues in the record, and to identify and develop information regarding the public interest at each stage of the investigation.”  These amended rules take effect November 18, 2011.

The Notice stated that these amendments do not change “the Commission’s substantive practice with respect to its consideration of the public interest factors in its determinations relating to the appropriate remedy.”  Rather, the Notice stated that the rules are amended to “increase the efficiency of its Section 337 investigations,” and “improve[e] the Commission’s procedures and ensur[e] the completeness of the record with respect to the required analysis concerning the public interest under Sections 337(d)(1) and (f)(1).”

New rule 210.8(b) provides that a complainant must file concurrently with its complaint a separate statement of public interest, not exceeding five pages (including attachments), addressing how the requested relief (i.e., general or limited exclusion order, and/or cease and desist orders) could affect the public health and welfare of the U.S.  In particular, the complainant’s submission is to:
(1) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(2) Identify any public health, safety, or welfare concerns relating to the requested remedial orders;
(3) Identify like or directly competitive articles that complainant, its licensees, or third parties make which could replace the subject articles if they were to be excluded;
(4) Indicate whether the complainant, its licensees, and/or third parties have the capacity to replace the volume of articles subject to the requested remedial orders in a commercially reasonable time in the United States; and
(5) State how the requested remedial orders would impact consumers.

New rule 210.8(c)(1) provides that upon the complaint’s filing, the Commission will publish a notice in the Federal Register inviting comments from the public and proposed respondents on any public interest issues.  The public and proposed respondents may respond within eight calendar days of the notice’s publication, and the submission is again five or fewer pages (including attachments) and should address the same five subjects identified above from §210.8(b).  §210.8(c)(2) provides the complainant with an opportunity to reply within three calendar days to any responses submitted by the public or proposed respondents under new rule 210.8(c)(1).

Based at least on the above information submitted by the complainant, and any submissions by  the public or proposed respondents under rule 210.8(c)(1), the Commission, when instituting the investigation and publishing a notice thereof in the Federal Register under §210.10(b), can “order the administrative law judge to take evidence and to issue a recommended determination on the public interest based generally on the submissions of the parties and the public under § 210.8(b) and (c).” §210.10(b) also provides that if the Commission orders the administrative law judge to take evidence with respect to the public interest, discovery is to be appropriately limited, particularly as to third parties, and ensured not to delay the investigation or be used improperly.  If the Commission does not specifically order an ALJ to take evidence on these public interest issues, they will not be within the scope of discovery.

§210.14(f) is added and provides that if the Commission orders an administrative law judge to take evidence with respect to the public interest under § 210.50(b)(1), respondents must submit a statement concerning the public interest, including any response to the issues raised by the complainant pursuant to § 210.8(b) and (c)(2), at the same time that their response to the complaint is due.

Amended § 210.42(a)(1)(ii)(C) clarifies that when ordered to take evidence on the public interest, an ALJ shall include analysis of the public interest in their recommended determination (“RD”).

The Commission’s comments within the Notice and the text of final rule 210.50(a)(4) indicate that the Commission will maintain its current practice of requesting party comments on the public interest within thirty (30) days after the RD issues, and solicitation of these comments is not limited to cases in which the Commission delegated the public interest issue to the ALJ.  Final rule 210.50(a)(4) has been amended to clarify that the parties are requested, but not required, to file comments under this provision (again limited to five pages, including attachments).  While this final rule does not allow members of the public to submit similar comments, the Commission will issue a Federal Register notice soliciting comments from the public after an RD issues.