Pilot Program Will Test Expedited Procedures for USITC Modification and Advisory Opinion Proceedings

U.S. importers, would-be importers, and intellectual property rights holders have expressed concern in recent years about how to obtain timely, transparent, and binding decisions on whether new and redesigned products are covered by remedial orders issued by the USITC following a violation of section 337.

In an effort to clarify their options, and as part of its continuing efforts to improve its section 337 investigation processes, the USITC has launched a pilot program to test the use of expedited procedures for the Commission to evaluate and rule on new and redesigned products in modification and advisory opinion proceedings. 

While these proceedings have been available for years, the Commission is seeking to improve and expedite them to better meet the needs of those affected by remedial orders.

Background:  U.S. Customs and Border Protection (Customs) has the primary role in enforcing Commission exclusion orders (but not consent or cease and desist orders) at U.S. ports of entry.

The USITC also provides post-order procedures to help ensure proper enforcement of its exclusion, consent, and cease and desist orders.  These procedures include modification proceedings and advisory opinion proceedings.  (Enforcement proceedings are also available, but are not a subject of this pilot program.)

  • Modification proceedings:    Modification proceedings are instituted to determine whether an the scope of an existing remedial order should be modified based on changed circumstances of fact or law.  The Commission can determine whether a redesigned or new product is covered by an existing exclusion, consent, or cease and desist order and whether the order should provide a “carve-out” for the redesigned or new product.  Modification proceedings are transparent, allow  participation by all parties involved in the underlying investigation, and result in an evidence-based determination based on a record.  Modification proceeding decisions are appealable to the Federal Circuit.
  • Advisory opinions:  Advisory opinion proceedings result in an advisory opinion from the Commission as to whether importation of a redesigned or new product will violate an existing exclusion, consent, or cease and desist order.  Any would-be importer can seek an advisory opinion.  As with modifications, these proceedings are transparent, involve all parties involved in the underlying investigation, and result in an evidence-based determination based on a record.  However, advisory opinions are not appealable.

The Pilot Program:  The pilot will test an expedited administrative process in these proceedings. 

  • Under the pilot program, a modification proceeding may be commenced by filing a petition with the Commission alleging facts concerning whether a redesigned or new product is covered by an existing exclusion, consent, or cease and desist order and addressing whether the order should provide a “carve-out” for the redesigned or new product.

The Commission will evaluate the petition and, if appropriate, institute an investigation to determine whether to modify the order.  The Commission notes that would-be importers concerned about whether their products may be covered by a general exclusion order also can take advantage of the modification proceedings.

  • Any person may seek an advisory opinion from the Commission as to whether importation of a redesigned or new product will violate an existing exclusion, consent, or cease and desist order.
  • For modification proceedings or advisory opinions involving a pure question of law, the Commission’s Office of General Counsel will conduct the proceeding, with the Commission’s final decision normally issued within 60-90 days from the date that the Commission’s notice to conduct the proceeding is published in the Federal Register.
  • For modification proceedings or advisory opinions involving minimal factfinding, the Commission’s Office of Unfair Import Investigations will conduct the proceeding, with the Commission’s final decision normally issued within 90-180 days from the date that the Commission’s notice to conduct the proceeding is published in the Federal Register.
  • For modification proceedings or advisory opinions that require extensive factfinding, the Commission will refer the matter to an Administrative Law Judge for appropriate proceedings and issuance of an initial ruling.  The Commission final decision will issue within 6-9 months from the date that the Commission’s notice to conduct the proceeding is published in the Federal Register.

For more details on the pilot program, see this fact sheet [DOC].  Any questions about the pilot program should be addressed to the USITC’s Office of Unfair Import Investigations at 202-205-2560.