COVID-19’s Influence on Part 337 Investigations on the U.S. Worldwide Commerce Fee (Replace)

COVID-19’s Impact on Section 337 Investigations at the U.S. International Trade Commission (Update)

Like many other federal agencies and district courts, the United States' International Trade Commission ("ITC") was open to business during the COVID-19 crisis, but to a limited extent. On June 22, 2020, the ITC announced plans for a wider reopening.

At the beginning of a gradual reopening of the District of Columbia and surrounding areas, the ITC has developed a three-phase plan to restore business operations in the ITC building, based on the Office of Management and Budget (OMB) and the Office guidelines for Human Resource Management (OPM), adapted to federal agencies as well as to the Centers for Disease Control and Prevention (CDC) and other relevant bodies related to COVID-19. The three-phase plan remains in effect until further notice.

The ITC is currently in phase 1 and the chair will use the OMB, OPM and CDC guidelines and gating criteria to judge when to proceed with each phase. The relevant guidelines recommend, among other things, a 14-day downward movement in benchmark metrics in COVID-19 cases in the region before each phase can begin and again each time before moving on to the next phase of the phase plan. There is no set schedule for entering a particular phase.

Phase one and phase two

If the Chairman determines that the gating criteria are met and the operational requirements of the ITC justify further development in view of all external and internal factors, the ITC will go through the first and second phases. During the first and second phases, ITC operations will hardly change compared to the current status. For example in both phases:

  • The USITC COVID-19 Action Plan remains in effect, as stated in our previous blogs here and here.
  • The USITC building remains closed to the public and is only accessible to employees.
  • The activities of the personal commission will remain suspended.
  • The temporary change to certain Commission business and procedural rules remains in force.

Phase three

If the Chairman determines that the gating criteria have been met for the third time and the operational requirements of the ITC justify further development given all external and internal factors, the ITC will proceed to the third phase. Changes effective in phase three include:

  • Normal business operations on site are resumed in the ITC building.
  • The ITC building is once again open to the public.
  • All personal activities in the ITC building can be resumed and all suspensions are lifted.
  • Before entering the third phase, the ITC may indicate any procedures and protocols introduced during the first and second phases that may change or remain in effect during the third phase.
  • The ITC will introduce new visitor access procedures. Visitors must check in at the ground floor guard station (regardless of the access point – front entrance or garage) before moving to another location in the building. The guards check all visitors according to normal procedures, including asking them to enter their name and phone number in the visitor log. Visitors must certify to themselves that they have no COVID-19 symptoms and have not knowingly been in contact with someone who has or is suspected of having COVID-19 recently.

The future of investigations according to § 337

Although the COVID-19 crisis has affected the conduct of Section 337 investigations, the parties are coping with the changes, including new registration / service procedures, flexibility in detection, alternative approaches to deposits and Markman hearings, and delays Evidence Hearings. In addition, the complainants continue to recognize the benefits and importance of the ITC Section 337 investigation, as evidenced by the fact that the number of complaints made during the COVID 19 crisis is consistent with historical data.