What is an advisory opinion?
An advisory opinion provides non-binding guidance with respect to the legal implications of a particular situation that is not the subject of an actual case or controversy. Federal courts are precluded from providing advisory opinions by Article III of the Constitution. However, unlike federal courts, the ITC, as an executive agency, can issue advisory opinions in certain circumstances. The ITC is specifically authorized to issue advisory opinions as to whether a proposed course of conduct (e.g. the importation of a new or redesigned product) would violate an existing exclusion, cease and desist, or consent order. 19 C.F.R. § 210.79.
Who can seek an advisory opinion at the ITC?
Any would-be importer can seek an advisory opinion at the ITC—the requestor need not have been a party to the proceeding that resulted in the order at issue. When deciding whether to issue such an opinion, the ITC must consider: (1) whether the opinion would facilitate Section 337 enforcement; (2) whether it would be in the public interest; (3) whether it would benefit U.S. consumers and competition; and (4) whether the requester has fully and accurately articulated a compelling business need for the advice.
Why seek an advisory opinion?
Companies that are seeking to import new or redesigned products into the United States can ensure that those products do not violate an existing ITC remedial order before investing large sums on manufacturing and distribution. An advisory opinion can also stave off costly ITC enforcement actions and provide a level of business certainty.
How long do advisory proceedings take?
In the past, advisory opinion proceedings were long (and costly) affairs that amounted to a mini-investigation before an ALJ. Advisory proceedings usually included an evidentiary hearing and took about a full year to complete.
The ITC has recently instituted a pilot program that significantly shortens the advisory proceeding process such that in most circumstances a final decision is made in about 180 days or less. Upon the filing of a petition for an advisory opinion, the Commission evaluates whether the proceeding will involve pure questions of law, minimal fact finding, or extensive fact finding.
- For proceedings 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 proceedings involving minimal fact finding, 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 proceedings that require extensive fact finding, 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 example, the Commission recently instituted advisory proceedings in Certain Foam Footwear, Inv. No. 337-TA-567, and assigned the case to the Office of Unfair Import Investigation (OUII) instead of an ALJ. Certain Foam Footwear, Inv. No. 337-TA-567 (Advisory Proceedings), Order ( August 11, 2016). The Commission directed OUII to provide a written report within 90 days. The Commission will provide the advisory opinion within 45 days of receiving OUII’s written report. Thus, the petitioner should have guidance with respect to the importation of its products within about 170 days of filing the petition (including the month it took the ITC to institute the proceedings).
Are Commission determinations in advisory proceedings appealable?
No. In Allied Corp. v. U.S. International Trade Commission, the Federal Circuit held that it lacked jurisdiction to review ITC advisory opinions. 850 F.2d 1573, 1578 (Fed. Cir. 1988).
Are there alternatives to advisory proceedings?
A would-be importer can also obtain an advisory opinion from Customs and Border Protection (CBP) under 19 C.F.R. § 177 (Part 177). One advantage of the Part 177 process is that proceedings before CBP are ex parte while an advisory proceeding before the ITC will also include the complainant from the underlying investigation. However, this might not be the case for much longer. The Advisory Committee on Commercial Operations of Customs And Border Protection issued a proposal to amend Part 177 to provide for an inter partes proceeding that involves both parties to the dispute as to whether an article is excluded from entry under an ITC exclusion order. Time used to be a significant advantage for Part 177 proceedings—an importer could usually get quicker guidance from CBP under Part 177 than in an ITC advisory proceeding. But that is no longer true in light of the pilot program noted above. The largest disadvantage of relying on an advisory opinion from CBP is that such rulings are not binding on the ITC in an enforcement proceeding. Therefore, a ruling from CBP provides less certainty to a business than an advisory opinion from the ITC.