The US International Trade Commission issued a Federal Register notice of proposed rulemaking related to 19 C.F.R. Parts 201, 205, 207 and 210, which govern the Commission’s Rules of Practice and Procedure. The Commission seeks feedback by May 20, 2024. Proposed Rules, 89 Fed. Reg. 61, 22012-39 (Mar. 28, 2024).
The notice specifies that the “amendments are necessary to make certain technical corrections, to clarify certain provisions, to harmonize different parts of the Commission’s rules, and to address concerns that have arisen in Commission practice.” The proposed amendments are intended to “facilitate compliance with the Commission’s Rules and improve the administration of agency proceedings.”
Proposed global updates to the rules include the replacement of gender-specific language with gender-neutral terminology. The Commission’s proposals also include permanent adoption of the rules related to filing electronic (in lieu of paper) copies of documents, which were put in place as a temporary measure during the COVID-19 pandemic.
In addition to the global measures, the Commission proposes specific changes to the procedures associated with commencement of investigations and the discovery process during an investigation. With respect to commencement of investigations, the Commission proposes the following changes:
- Amending 210.8(c) to allow members of the public, interested government agencies or proposed respondents to file comments that address not only the public interest but also other issues in response to a complaint filed with the Commission
- Amending 210.12(a)(8)(i) to require alleging specific facts that show the existence of each element of the cause of action underlying complaints based on an unfair act or method of competition under § 337(a)(1)(A)
- Adding a new mechanism to 210.14(g) that allows the Chief Administrative Llaw Judge to consolidate investigations that are before different administrative law judges
The notice also proposes updates to the discovery process that are largely designed to conform the Commission’s rules to those found in the Federal Rules of Civil Procedure. Such changes include:
- Aligning the scope of discovery found in 210.27 with that of Fed. R. Civ. Pro. 26. In particular, the proposed changes include deleting the reference to information that “appears reasonably calculated to lead to the discovery of admissible evidence” and inserting language emphasizing that discovery must be proportional to the needs of the investigation.
- Updating 210.28, which governs the procedures and limits associated with depositions. Proposed updates include adding language that clarifies that third-party depositions count toward a party group’s overall deposition limit, changing the number of depositions a complainant may take from five fact depositions per respondent to 20 total fact depositions, and limiting deposition time to one day of seven hours per witness (which may be altered upon agreement of the parties or order of the presiding administrative law judge).
- Adding a clarification to 210.30, which governs the production of documents, to conform with Fed. R. Civ. Pro. 34 by requiring that if a party is withholding documents based on an objection, it must affirmatively state that it is doing so.
- Codifying 210.32 to provide that the administrative law judge, in rare situations, may seek foreign judicial assistance on the Commission’s own authority rather than through a US district court when seeking to enforce a subpoena on a foreign entity.
Interested parties may submit feedback regarding the proposed amendments at the Federal eRulemaking Portal or directly via the Commission’s website. Written comments must be received no later than 5:15 pm EDT on May 20, 2024.
