By: Vishal Khatri and David Maiorana – The ITC recently issued a Seizure and Forfeiture Order in response to an attempted importation of “ink cartridges and components thereof” subject to a General Exclusion Order (“GEO”) issued May 26, 2016. Certain Ink Cartridges and Components Thereof, 337-TA-946, Seizure and Forfeiture Order (February 6, 2019).
Pursuant to 19 U.S.C. § 1337(i), the ITC is permitted to “issue an order providing that any article imported in violation of [Section 337] be seized and forfeited to the United States” if certain conditions are met. In this instance, Customs and Border Protection (“CBP”) met the necessary conditions when they informed the ITC of the attempted importation. In particular, CBP’s communication with the ITC indicated that (i) an entity, Swift Ink LLC, attempted to import articles subject to the May 26, 2016 GEO; (ii) CBP denied entry of the articles; and (iii) CBP provided Swift Ink with written notice of the GEO and notice that further attempts to import the articles would result in seizure and forfeiture. In response, the ITC issued the Seizure and Forfeiture Order indicating that “Ink Cartridges and Components Thereof that are imported in violation of the general exclusion order issued in the above-captioned investigation are to be seized and forfeited to the United States,” if imported by Swift Ink.
This Order provides an opportunity to review the complexities of enforcement of remedial orders at the ITC. The GEO in this investigation issued May 26, 2016. In response to the GEO, CBP likely developed internal guidelines for how to enforce the GEO – i.e., how to identify and exclude articles covered by the GEO at the various ports of entry. The internal guidelines were likely informed by the record from the investigation (which is communicated to CBP by the ITC) and by the parties to the investigation. In this case, it is likely that the complainant advised CBP of what articles were encompassed by the GEO, the likely importers of the covered articles, and how to more easily identify relevant articles. Such information was likely communicated to CBP in ex parte meetings with CBP before and after the issuance of the GEO.
Practically, identification of excluded articles is difficult and time consuming. Parties at the ITC are well advised to engage in ongoing communications with CBP to assist with enforcement of exclusion orders that may affect them. For example, if Respondents redesign relevant articles or begin importing new articles, they should consider whether to engage with CBP prior to importing such articles. Similarly, Complainants should consider the benefits of continually monitoring competitor imports and advising CBP when potentially excluded articles are imported.
Considerations concerning enforcement of ITC remedial orders should be investigated as early as possible during the underlying investigation so the necessary discovery can be obtained. For example, obtaining discovery regarding importers of the articles and/or plans for future products may help inform future enforcement efforts. While it is possible for CBP to enforce remedial orders on their own, complainants and respondents are likely to get better results when they assist CBP with their enforcement efforts.