Scheme Nickname: 
ITC- 337

This Type A adjudication scheme covers proceedings mostly under section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337), which gives a private right of action to remedy alleged unfair acts in importation that either threaten a U.S. industry or infringe enforceable U.S. intellectual property (IP) rights (specifically patents, copyrights, trademarks, mask works, and boat hull designs). This is a formal scheme under the APA, and also includes cases covering violations of protective orders in NAFTA proceedings.

An ALJ hears the case to determine whether there were any section 337 violations (or whether a charged party has committed a prohibited act regarding a NAFTA protective order), and issues an "initial determination" (or terminates the investigation). The ALJ also issues "recommended determinations" about proposed remedies, bond amounts, and enumerated "public interest" considerations. ALJ determinations automatically become ITC determinations in 60 days (or 45 days in existing order enforcement or NAFTA protective order violation cases), unless the Commission grants review, orders review, or changes the date. See 19 C.F.R. §§ 210.42(h)(2); 207.114)(d). Parties can petition for review of the ALJ's decision.

The Commission, in its discretion, may grant review, or review on its own motion if one Commissioner votes to do so. The Commission may affirm, reverse, modify, or set aside the ALJ's initial determination.

The final level of adjudication lies with the President of the United States. If the President approves the Commission's determination or does nothing within 60 days, the Commission's action stands. If the President vetoes the agency's action, the President's decision is final. Through a 2005 Presidential Memorandum, this authority was delegated to the U.S. Trade Representative (USTR). See 70 Fed. Reg. 43,251. There appears to be some opportunity for interested parties to raise arguments at the USTR level. See < (Oct. 2013) (subject of ITC exclusion order "raised concerns" during USTR's review, and USTR "carefully weighed policy considerations, including ... information from interested parties").

Verified by Agency: