19 C.F.R. § 210.79

Advisory opinions

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(a) Advisory opinions. Upon request of any person, the Commission may, upon such investigation as it deems necessary, issue an advisory opinion as to whether any person's proposed course of action or conduct would violate a Commission exclusion order, cease and desist order, or consent order. Any responses to a request for an advisory opinion shall be filed within 10 days of service of the request. The Commission will consider whether the issuance of such an advisory opinion would facilitate the enforcement of section 337 of the Tariff Act of 1930, would be in the public interest, and would benefit consumers and competitive conditions in the United States, and whether the person has a compelling business need for the advice and has framed his request as fully and accurately as possible. Advisory opinion proceedings are not subject to sections 554, 555, 556, 557, and 702 of title 5 of the United States Code.

(1) The determination of whether to issue and advisory opinion shall be made within 30 days after the petition is filed, unless—

(i) Exceptional circumstances preclude adherence to a 30-day deadline;

(ii) The requester asks the Commission to postpone the determination on whether to institute an advisory proceeding; or

(iii) The petitioner withdraws the request.

(2) If exceptional circumstances preclude Commission adherence to the 30-day deadline for determining whether to institute an advisory proceeding on the basis of the request, the determination will be made as soon after that deadline as possible.

(3) If the requester desires that the Commission postpone making a determination on whether to institute an advisory proceeding in response to its request, the requester must file a written request with the Secretary. If the request is granted, the determination will be rescheduled for whatever date is appropriate in light of the facts.

(4) The requester may withdraw the request as a matter of right at any time before the Commission votes on whether to institute an advisory proceeding. To effect such withdrawal, the requester must file a written notice with the Commission.

(5) The Commission shall institute an advisory proceeding by publication of a notice in the Federal Register. The notice will define the scope of the advisory opinion and may be amended by leave of the Commission.

(b) Revocation. The Commission may at any time reconsider any advice given under this section and, where the public interest requires, revoke its prior advice. In such event the person will be given notice of the Commission's intent to revoke as well as an opportunity to submit its views to the Commission. The Commission will not proceed against a person for violation of an exclusion order, cease and desist order, or consent order with respect to any action that was taken in good faith reliance upon the Commission's advice under this section, if all relevant facts were accurately presented to the Commission and such action was promptly discontinued upon notification of revocation of the Commission's advice.

[59 FR 39039, Aug. 1, 1994, as amended at 73 FR 38327, July 7, 2008; 83 FR 21164, May 8, 2018]

Notes of Decisions

Cited in 4 cases, 2005–2020 · leading case: Ninestar Tech. Co. v. Int'l Trade Comm'n, 667 F.3d 1373 (Fed. Cir. 2012).

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Ninestar Tech. Co. v. Int'l Trade Comm'n, 667 F.3d 1373 (Fed. Cir. 2012). “The Commission directs attention to its procedure for obtaining an “advisory opinion” if an order is unclear or if a product is changed: 19 C.F.R. § 210.79 . Upon request of any person, the Commission may .”

Mems Tech. Berhard v. Int'l Trade Comm'n, 447 F. App'x 142 (Fed. Cir. 2011). “At oral argument, counsel for Knowles contended that the proper mechanism for determining whether MemsTech’s chamber-chip products are within the scope of the Commission's limited exclusion order is to seek an advisory opinion under 19 C.F.R. § 210.79 or a modification of the…”

Wirtgen Am., Inc. v. United States, 2020 CIT 70 (Ct. Intl. Trade 2020). “(citing 19 C.F.R. § 210.79 ; 19 C.F.R. pt. 177). The U.”

Eaton Corp. v. United States, 395 F. Supp. 2d 1314 (Ct. Intl. Trade 2005). “79, 19 C.F.R. § 210.79 , as to whether their new FreedomLine transmission system falls within the scope of the limited exclusion order.”

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