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Importers to Get Faster Response on Remedial Order Coverage of New and Redesigned Products

Friday, February 27, 2015
Sandler, Travis & Rosenberg Trade Report

The International Trade Commission has announced the launch of a pilot program to test the use of expedited procedures for evaluating and ruling on whether new and redesigned products are covered by remedial orders issued for patent infringement or other violations of Section 337 of the 1930 Tariff Act.

The ITC provides post-order procedures to help ensure proper enforcement of its exclusion, consent, and cease and desist orders, including modification proceedings and advisory opinion proceedings. Modification proceedings determine whether the scope of an existing remedial order should be modified (i.e., expanded or narrowed) based on changed circumstances of fact or law. Advisory opinion proceedings can be sought by any would-be importer and result in a determination as to whether the importation of a redesigned or new product would violate an existing exclusion, consent, or cease and desist order. U.S. Customs and Border Protection considers ITC advisory opinions as determinative of the scope of exclusion orders.

Under the pilot program, a modification proceeding may be commenced by filing with the ITC a petition 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 ITC will evaluate the petition and, if appropriate, modify the order to specifically exempt the redesigned or new product. Would-be importers concerned about whether their products may be covered by a general exclusion order can also take advantage of these modification proceedings.

In addition, any person may seek an advisory opinion as to whether the importation of a redesigned or new product will violate an existing exclusion, consent, or cease and desist order.

For requests involving purely legal questions, the ITC’s Office of General Counsel will conduct the proceeding, with a final decision normally issued within 60-90 days. For requests involving minimal fact-finding, the ITC’s Office of Unfair Import Investigations will conduct the proceeding, with a final decision normally issued within 90-180 days. For requests that require extensive fact-finding, the ITC will refer the matter to an administrative law judge for the development of a record and issuance of an initial determination, with a final decision due within six to nine months.

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