Public Interest At The ITC

• Published date: 17 March 2022
• Subject Matter: International Law, International Trade & Investment
• Law Firm: Morrison & Foerster LLP
• Author: Veronica Ascarrunz, Daniel Muino and Mary Prendergast

When weighing whether to issue its injunctive-type remedies'exclusion and cease-and-desist orders'the United States International Trade Commission ("Commission") is not required to apply the eBay four-factor test used by district courts for permanent injunctions.¹, ² Instead, the Commission must assess the effects its remedial orders would have on the statutory public interest factors:

1. the public health and welfare;
2. competitive conditions in the U.S. economy;
3. the production of like or directly competitive articles in the U.S.; and
4. U.S. consumers.

19 U.S.C. ' 1337(d)(1), (f)(1). The Commission must evaluate these factors in every case and typically does so at the end of an investigation.

Complainants are required to submit a public interest statement with the filing of a complaint. The information in that statement, along with responsive statements, is used by the Commission to determine if the issue of public interest should be delegated to the administrative law judge ("ALJ") for fact-finding during the course of the investigation. In approximately 20% of cases, the Commission delegates public interest to the ALJ to take evidence during the course of the investigation for fact finding and a recommended determination.

Denial of Relief Based on Public Interest

Congress intended for the public interest factors to be overriding considerations and paramount in Section 337 investigations.³ The Commission, however, rarely denies remedies based on the public interest factors, and has only done so on three occasions, and not since 1984:

• In Crankpin Grinders, the Commission found that it was not in the public interest to exclude crankpin grinders used in the manufacture of automobile engines because of an overriding national interest in the supply of fuel-efficient automobiles, where the domestic industry was unable to supply domestic demand within a commercially reasonable length of time.⁴
• In Inclined-Field Acceleration Tubes, the Commission denied remedies due to an overriding public interest in continuing basic atomic research using the high-quality accused products essential to nuclear research programs.⁵

• In Fluidized Supporting Apparatus, the Commission denied remedies because it was not in the public interest to exclude specialized hospital beds for burn patients where the domestic producer could not supply beds within a commercially reasonable time and where no therapeutically comparable substitute was available.⁶

In all three of these investigations...