CBP Working Toward Process for ITC Exclusion Order Rulings
CBP is drafting a rulemaking proposal that will create a process to request rulings from the agency on its interpretations of International Trade Commission exclusion orders, said King & Spalding's international trade practice (here). CBP officials from the agency's Intellectual Property Rights branch described the proposal during a presentation with the ITC Trial Lawyers Association, the law firm said. The agency officials said "CBP is moving towards an inter partes procedure under Part 177 of CBP’s regulations that would allow interested parties to seek rulings on interpretations of ITC exclusion orders, including redesigns or modifications to otherwise covered articles," King & Spalding said. Currently, the process is ex parte, allowing for only parties to an ITC section 337 investigation to take part, the firm said.
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The proposed rulemaking is still in draft form, is yet to be approved by CBP and has not been publicly released, the firm said. The ruling request procedure, as proposed, "would have built-in timelines; allow for briefs and oral argument before an IPR Branch official; provide for further review by the ITC; and require the publication of final ruling letters," it said "Issues still to be worked out include the handling of confidential business information, the role of the courts in the review process, and the timing of publication." CBP didn't immediately comment.