By Barry Herman
Following the issuance of an exclusion order by the Commission in a Section 337 investigation, any person seeking a determination that its redesigned products do not violate such exclusion order may seek (1) an advisory opinion under Commission Rule 210.79; and/or (2) an administrative ruling from U.S. Customs under 19 C.F.R. §177.

Under Commission Rule 210.79, any person may request an advisory opinion from the Commission to determine whether a proposed course of action or conduct would violate a Commission order.  The party requesting the advisory opinion must establish standing by showing that the proposed course of action is not hypothetical, that it has a compelling business need for the advice, and that the request was made as fully and as accurately as possible.  The Commission also takes into consideration whether an advisory opinion would facilitate the enforcement of Section 337, would be in the public interest, and would benefit consumers and competitive conditions in the United States.  Although the Commission’s rules do not require that an Administrative Law Judge (“ALJ”) issue an advisory opinion within a certain timeframe, the Commission can require that an ALJ set an abbreviated procedural schedule.  Typically, the Commission requires that the ALJ issue an initial advisory opinion within nine months of the publication date of the Commission’s Notice of Advisory Opinion Proceedings.  See, e.g., Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, Notice of Formal Enforcement and Advisory Opinion Proceedings and Accompanying Order (July 31, 2001) (9-months after notice publication).  Advisory Opinion proceedings are not subject to the requirements of the Administrative Procedures Act and thus the ALJ has discretion concerning the course of the advisory opinion proceeding, including taking evidence beyond what is already in the record, whether or not to hold an evidentiary hearing, and the scheduling for the proceeding.  Further, an advisory opinion by the Commission is not appealable as it does not represent a final determination.

Alternatively, persons who desire clarification about whether a redesigned product is covered by an exclusion order may request a ruling under 19 C.F.R. § 177 by sending a written request to U.S. Customs.  Requests are normally processed by U.S. Customs in the order received and as quickly as possible, usually within two to six months.  If U.S. Customs finds that the redesigned product falls outside the scope of the exclusion order, it will issue a ruling to that effect and permit the articles to enter the United States.  On the other hand, in the event that U.S. Customs denies entry of a redesigned product in light of an existing exclusion order, U.S. Customs will issue a ruling.  Such a ruling is subject to a right to appeal to the U.S. Court of International Trade (“CIT”).  Appeals from final decisions of the CIT may be taken to the U.S. Court of Appeals for the Federal Circuit and, ultimately, to the Supreme Court of the United States.