100-Day Pilot Program Proceedings Remain Rare
In two recent orders, the Commission denied respondents' requests for entry into its Early Disposition Pilot Program (100-day Pilot Program). It has now been over two years since the ITC issued its proposed rulemaking for the program, and such proceedings remain rare.
100-Day Pilot Program
The 100-Day Pilot Program is intended "to test whether earlier rulings on certain dispositive issues in some section 337 investigations could limit unnecessary litigation, saving time and costs for all parties involved."1 It is pending codification pursuant to a notice of proposed rulemaking issued in September 2015. Currently, the process is initiated by the Commission in the notice of investigation. The ITC proposed broadening the pilot program in its notice of proposed rulemaking by allowing administrative law judges to institute proceedings for early determination of dispositive issues. Pursuant to the Commission's notice of investigation, the ALJ issues a procedural schedule including expedited fact finding and an evidentiary hearing. Ordinarily, the hearing will result in an initial determination within 100 days of the institution of the investigation. Parties may then petition the Commission for review of the ID within five days of service of the ID.
Although the Commission has stated that the 100-Day Pilot Program is the "latest action in its ongoing efforts to improve its section 337 investigation procedures and meet its obligation to complete investigations expeditiously," its use remains somewhat rare. Of the approximately 200 Section 337 investigations since the 100-Day Pilot Program began, only six have been placed in the programtwo based on a respondent's request and four sua sponte. In most circumstances, the Commission denies entry into the pilot program because the issue is not dispositive of the entire investigation or is too complex to decide in 100 days. Two recent denials of entry into the program demonstrate the uphill battle a respondent has in getting such a proceeding instituted.
Certain Shaving Cartridges, Inv. No. 337-TA-1079
In Certain Shaving Cartridges, respondents requested that the 100-Day Pilot Program be instituted on the issue of importation. They contended that the information relied upon by...
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