In addressing the issue of whether the 100-day domestic industry pilot program launched by the U.S. International Trade Commission (ITC) violates the Administrative Procedures Act (APA), the ITC ruled that the program is lawful and rebuffed dicta in an administrative law judge’s (ALJ’s) decision questioning the program’s legality.  Certain Products Having Laminated Packaging, Laminated Packaging, and Components Thereof, Inv. No. 337-TA-874, Comm’n Op. (Sept. 23, 2013).

The 874 investigation was the first investigation where, at institution, the ITC ordered the ALJ to determine, within 100 days of institution, whether the complainant met the domestic industry requirements of § 337. (See , Vol. 16, No. 7).

Subsequent to the finding by the ALJ that the complainant failed to meet the economic prong of the domestic industry requirement (a decision that terminated the investigation), the complainant filed a petition for review, challenging the ITC’s order to the ALJ to issue an initial determination (ID) within the first 100 days of the investigation to determine whether the complainant had met the domestic industry requirement.  The complainant argued that the ITC’s 100-day order to the ALJ violated its constitutional right to due process, as well as the notice and rulemaking provisions of the APA. 

In rejecting both arguments, the ITC explained that the complainant’s constitutional argument lacked both constitutional support and governing precedent.  The ITC explained that “none of the [initial determination’s] citations stand for the proposition that the Constitution requires more process than was provided here.”  The ITC also rebuffed the APA-based arguments, explaining that “a Commission ALJ lacks the authority to conduct such an inquiry so as to repudiate or nullify the Commission’s own application of its procedural rules.”  Further, the ITC concluded that there was no conflict with its existing rules, but noted that even if there was, the ITC is able to alter or waive procedural rules because the APA’s notice and rulemaking provisions do not apply to “procedural rules.”  Finally, the ITC explained that, regardless of its basis for instituting the 100-day program, there was no substantial prejudice to the complainant because the complainant was able to obtain information from its licensees and take third-party discovery, and could have moved to extend the proceedings if necessary.  Thus, there was no substantial prejudice to the complainant and no violation of the APA.