On October 14, 2016, the Commission issued an Opinion in Certain Stainless Steel Products, Certain Processes for Manufacturing or Relating to Same and Certain Products Containing Same, Inv. No. 337-TA-933 denying a request for an advisory opinion.

Advisory Opinions

Advisory opinions can provide companies that are seeking to import new or redesigned products a level of assurance that those products do not violate an ITC remedial order before investing large sums on manufacturing and distribution. Commission Rule 210.79 requires the Commission to consider various factors in determining whether to issue an advisory opinion including: (1) whether the issuance of such an advisory opinion would facilitate the enforcement of Section 337 of the Tariff Act of 1930; (2) whether the issuance of such an advisory opinion would be in the public interest; (3) whether the issuance of such an advisory opinion would benefit consumers and competitive conditions in the United States; and (4) whether the requestor has a compelling business need for the advice and has framed his request as fully and accurately as possible.

The Case

The Commission instituted the investigation on October 10, 2014, based on a complaint filed by Valbruna Slater Stainless, Inc., Valbruna Stainless Inc., and Acciaierie Valbruna S.p.A. (collectively, “Complainants”). The complaint alleged violations of Section 337 based on the importation of stainless steel products, manufactured utilizing Complainants’ misappropriated trade secrets. On December 8, 2015, the administrative law judge issued an initial determination (“ID”) finding Respondent Viraj Profiles Limited (“Viraj”) in default as a sanction for spoliation of evidence and ordering the disgorgement of Complainants’ operating practices in Viraj’s possession.

On May 25, 2016, the Commission modified the reasoning underlying the default finding in the ID, vacated the ID’s order of disgorgement, and terminated the investigation with a finding of violation of Section 337 as to Viraj. The Commission issued a limited exclusion order (“LEO”) prohibiting the unlicensed entry of certain stainless steel products, certain processes for manufacturing or relating to same, and certain products containing same manufactured or sold by Viraj using any of the misappropriated trade secrets identified in the complaint. The LEO includes a provision requiring that “[p ]rior to the importation of stainless steel product that may be subject to this Order, the importer or Respondent must seek a ruling from the Commission to determine whether the stainless steel product sought to be imported is covered by this Order.”

On June 22, 2016, Viraj filed a request pursuant to Commission Rule 210.79 seeking an advisory opinion that will declare that stainless steel billets and ingots that have been melted, refined, and cast by an unrelated third-party are products not covered by the Commission’s orders.

The Commission denied Viraj’s request for an advisory opinion reasoning that Viraj did not provide sufficient detail regarding its proposed course of action. In its Opinion that accompanied the LEO, the Commission stated that Viraj “will bear the burden of demonstrating, in ancillary proceedings before the Commission, that specific products that it seeks to import are not manufactured using any of the trade secrets identified in Valbruna’s complaint.” However, Viraj’s request for advisory opinion only identified a protocol for obtaining stainless steel billets and ingots from third parties and did not identify specific products that are allegedly outside the scope of the Commission’s Orders. The Commission also noted that Viraj’s request did not disclose any specific third-party manufacturers from whom it seeks to purchase steel billets or ingots thereby preventing the Commission from verifying that the manufacturers are actually unrelated third-parties.

Takeaway

It appears that the Commission denied the request for an advisory opinion because Viraj did not identify the specific products that it sought to import. While an identification of specific products is not an explicit requirement of Rule 210.79, Viraj was required to identify specific products in ancillary proceedings pursuant to the Commission’s sanctions for spoliation of evidence. Certainly, Viraj’s request for an advisory opinion was ultimately denied on case-specific facts, including the spoliation issues. Nonetheless, parties seeking an advisory opinion should endeavor to frame their request to specific products that can be traced to their origins.