19 U.S.C. § 1337 : US Code - Section 1337: Unfair practices in import trade

Search 19 U.S.C. § 1337 : US Code - Section 1337: Unfair practices in import trade

(a) Unlawful activities; covered industries; definitions
(1) Subject to paragraph (2), the following are unlawful, and
when found by the Commission to exist shall be dealt with, in
addition to any other provision of law, as provided in this
section:
(A) Unfair methods of competition and unfair acts in the
importation of articles (other than articles provided for in
subparagraphs (B), (C), (D), and (E)) into the United States, or
in the sale of such articles by the owner, importer, or
consignee, the threat or effect of which is -
(i) to destroy or substantially injure an industry in the
United States;
(ii) to prevent the establishment of such an industry; or
(iii) to restrain or monopolize trade and commerce in the
United States.
(B) The importation into the United States, the sale for
importation, or the sale within the United States after
importation by the owner, importer, or consignee, of articles
that -
(i) infringe a valid and enforceable United States patent or
a valid and enforceable United States copyright registered
under title 17; or
(ii) are made, produced, processed, or mined under, or by
means of, a process covered by the claims of a valid and
enforceable United States patent.
(C) The importation into the United States, the sale for
importation, or the sale within the United States after
importation by the owner, importer, or consignee, of articles
that infringe a valid and enforceable United States trademark
registered under the Trademark Act of 1946 [15 U.S.C. 1051 et
seq.].
(D) The importation into the United States, the sale for
importation, or the sale within the United States after
importation by the owner, importer, or consignee, of a
semiconductor chip product in a manner that constitutes
infringement of a mask work registered under chapter 9 of title
17.
(E) The importation into the United States, the sale for
importation, or the sale within the United States after
importation by the owner, importer, or consigner, of an article
that constitutes infringement of the exclusive rights in a design
protected under chapter 13 of title 17.
(2) Subparagraphs (B), (C), (D), and (E) of paragraph (1) apply
only if an industry in the United States, relating to the articles
protected by the patent, copyright, trademark, mask work, or design
concerned, exists or is in the process of being established.
(3) For purposes of paragraph (2), an industry in the United
States shall be considered to exist if there is in the United
States, with respect to the articles protected by the patent,
copyright, trademark, mask work, or design concerned -
(A) significant investment in plant and equipment;
(B) significant employment of labor or capital; or
(C) substantial investment in its exploitation, including
engineering, research and development, or licensing.
(4) For the purposes of this section, the phrase "owner,
importer, or consignee" includes any agent of the owner, importer,
or consignee.
(b) Investigation of violations by Commission
(1) The Commission shall investigate any alleged violation of
this section on complaint under oath or upon its initiative. Upon
commencing any such investigation, the Commission shall publish
notice thereof in the Federal Register. The Commission shall
conclude any such investigation and make its determination under
this section at the earliest practicable time after the date of
publication of notice of such investigation. To promote expeditious
adjudication, the Commission shall, within 45 days after an
investigation is initiated, establish a target date for its final
determination.
(2) During the course of each investigation under this section,
the Commission shall consult with, and seek advice and information
from, the Department of Health and Human Services, the Department
of Justice, the Federal Trade Commission, and such other
departments and agencies as it considers appropriate.
(3) Whenever, in the course of an investigation under this
section, the Commission has reason to believe, based on information
before it, that a matter, in whole or in part, may come within the
purview of part II of subtitle IV of this chapter, it shall
promptly notify the Secretary of Commerce so that such action may
be taken as is otherwise authorized by such part II. If the
Commission has reason to believe that the matter before it (A) is
based solely on alleged acts and effects which are within the
purview of section 1671 or 1673 of this title, or (B) relates to an
alleged copyright infringement with respect to which action is
prohibited by section 1008 of title 17, the Commission shall
terminate, or not institute, any investigation into the matter. If
the Commission has reason to believe the matter before it is based
in part on alleged acts and effects which are within the purview of
section 1671 or 1673 of this title, and in part on alleged acts and
effects which may, independently from or in conjunction with those
within the purview of such section, establish a basis for relief
under this section, then it may institute or continue an
investigation into the matter. If the Commission notifies the
Secretary or the administering authority (as defined in section
1677(1) of this title) with respect to a matter under this
paragraph, the Commission may suspend its investigation during the
time the matter is before the Secretary or administering authority
for final decision. Any final decision by the administering
authority under section 1671 or 1673 of this title with respect to
the matter within such section 1671 or 1673 of this title of which
the Commission has notified the Secretary or administering
authority shall be conclusive upon the Commission with respect to
the issue of less-than-fair-value sales or subsidization and the
matters necessary for such decision.
(c) Determinations; review
The Commission shall determine, with respect to each
investigation conducted by it under this section, whether or not
there is a violation of this section, except that the Commission
may, by issuing a consent order or on the basis of an agreement
between the private parties to the investigation, including an
agreement to present the matter for arbitration, terminate any such
investigation, in whole or in part, without making such a
determination. Each determination under subsection (d) or (e) of
this section shall be made on the record after notice and
opportunity for a hearing in conformity with the provisions of
subchapter II of chapter 5 of title 5. All legal and equitable
defenses may be presented in all cases. A respondent may raise any
counterclaim in a manner prescribed by the Commission. Immediately
after a counterclaim is received by the Commission, the respondent
raising such counterclaim shall file a notice of removal with a
United States district court in which venue for any of the
counterclaims raised by the party would exist under section 1391 of
title 28. Any counterclaim raised pursuant to this section shall
relate back to the date of the original complaint in the proceeding
before the Commission. Action on such counterclaim shall not delay
or affect the proceeding under this section, including the legal
and equitable defenses that may be raised under this subsection.
Any person adversely affected by a final determination of the
Commission under subsection (d), (e), (f), or (g) of this section
may appeal such determination, within 60 days after the
determination becomes final, to the United States Court of Appeals
for the Federal Circuit for review in accordance with chapter 7 of
title 5. Notwithstanding the foregoing provisions of this
subsection, Commission determinations under subsections (d), (e),
(f), and (g) of this section with respect to its findings on the
public health and welfare, competitive conditions in the United
States economy, the production of like or directly competitive
articles in the United States, and United States consumers, the
amount and nature of bond, or the appropriate remedy shall be
reviewable in accordance with section 706 of title 5.
Determinations by the Commission under subsections (e), (f), and
(j) of this section with respect to forfeiture of bonds and under
subsection (h) of this section with respect to the imposition of
sanctions for abuse of discovery or abuse of process shall also be
reviewable in accordance with section 706 of title 5.
(d) Exclusion of articles from entry
(1) If the Commission determines, as a result of an investigation
under this section, that there is a violation of this section, it
shall direct that the articles concerned, imported by any person
violating the provision of this section, be excluded from entry
into the United States, unless, after considering the effect of
such exclusion upon the public health and welfare, competitive
conditions in the United States economy, the production of like or
directly competitive articles in the United States, and United
States consumers, it finds that such articles should not be
excluded from entry. The Commission shall notify the Secretary of
the Treasury of its action under this subsection directing such
exclusion from entry, and upon receipt of such notice, the
Secretary shall, through the proper officers, refuse such entry.
(2) The authority of the Commission to order an exclusion from
entry of articles shall be limited to persons determined by the
Commission to be violating this section unless the Commission
determines that -
(A) a general exclusion from entry of articles is necessary to
prevent circumvention of an exclusion order limited to products
of named persons; or
(B) there is a pattern of violation of this section and it is
difficult to identify the source of infringing products.
(e) Exclusion of articles from entry during investigation except
under bond; procedures applicable; preliminary relief
(1) If, during the course of an investigation under this section,
the Commission determines that there is reason to believe that
there is a violation of this section, it may direct that the
articles concerned, imported by any person with respect to whom
there is reason to believe that such person is violating this
section, be excluded from entry into the United States, unless,
after considering the effect of such exclusion upon the public
health and welfare, competitive conditions in the United States
economy, the production of like or directly competitive articles in
the United States, and United States consumers, it finds that such
articles should not be excluded from entry. The Commission shall
notify the Secretary of the Treasury of its action under this
subsection directing such exclusion from entry, and upon receipt of
such notice, the Secretary shall, through the proper officers,
refuse such entry, except that such articles shall be entitled to
entry under bond prescribed by the Secretary in an amount
determined by the Commission to be sufficient to protect the
complainant from any injury. If the Commission later determines
that the respondent has violated the provisions of this section,
the bond may be forfeited to the complainant.
(2) A complainant may petition the Commission for the issuance of
an order under this subsection. The Commission shall make a
determination with regard to such petition by no later than the
90th day after the date on which the Commission's notice of
investigation is published in the Federal Register. The Commission
may extend the 90-day period for an additional 60 days in a case it
designates as a more complicated case. The Commission shall publish
in the Federal Register its reasons why it designated the case as
being more complicated. The Commission may require the complainant
to post a bond as a prerequisite to the issuance of an order under
this subsection. If the Commission later determines that the
respondent has not violated the provisions of this section, the
bond may be forfeited to the respondent.
(3) The Commission may grant preliminary relief under this
subsection or subsection (f) of this section to the same extent as
preliminary injunctions and temporary restraining orders may be
granted under the Federal Rules of Civil Procedure.
(4) The Commission shall prescribe the terms and conditions under
which bonds may be forfeited under paragraphs (1) and (2).
(f) Cease and desist orders; civil penalty for violation of orders
(1) In addition to, or in lieu of, taking action under subsection
(d) or (e) of this section, the Commission may issue and cause to
be served on any person violating this section, or believed to be
violating this section, as the case may be, an order directing such
person to cease and desist from engaging in the unfair methods or
acts involved, unless after considering the effect of such order
upon the public health and welfare, competitive conditions in the
United States economy, the production of like or directly
competitive articles in the United States, and United States
consumers, it finds that such order should not be issued. The
Commission may at any time, upon such notice and in such manner as
it deems proper, modify or revoke any such order, and, in the case
of a revocation, may take action under subsection (d) or (e) of
this section, as the case may be. If a temporary cease and desist
order is issued in addition to, or in lieu of, an exclusion order
under subsection (e) of this section, the Commission may require
the complainant to post a bond, in an amount determined by the
Commission to be sufficient to protect the respondent from any
injury, as a prerequisite to the issuance of an order under this
subsection. If the Commission later determines that the respondent
has not violated the provisions of this section, the bond may be
forfeited to the respondent. The Commission shall prescribe the
terms and conditions under which the bonds may be forfeited under
this paragraph.
(2) Any person who violates an order issued by the Commission
under paragraph (1) after it has become final shall forfeit and pay
to the United States a civil penalty for each day on which an
importation of articles, or their sale, occurs in violation of the
order of not more than the greater of $100,000 or twice the
domestic value of the articles entered or sold on such day in
violation of the order. Such penalty shall accrue to the United
States and may be recovered for the United States in a civil action
brought by the Commission in the Federal District Court for the
District of Columbia or for the district in which the violation
occurs. In such actions, the United States district courts may
issue mandatory injunctions incorporating the relief sought by the
Commission as they deem appropriate in the enforcement of such
final orders of the Commission.
(g) Exclusion from entry or cease and desist order; conditions and
procedures applicable
(1) If -
(A) a complaint is filed against a person under this section;
(B) the complaint and a notice of investigation are served on
the person;
(C) the person fails to respond to the complaint and notice or
otherwise fails to appear to answer the complaint and notice;
(D) the person fails to show good cause why the person should
not be found in default; and
(E) the complainant seeks relief limited solely to that person;
the Commission shall presume the facts alleged in the complaint to
be true and shall, upon request, issue an exclusion from entry or a
cease and desist order, or both, limited to that person unless,
after considering the effect of such exclusion or order upon the
public health and welfare, competitive conditions in the United
States economy, the production of like or directly competitive
articles in the United States, and United States consumers, the
Commission finds that such exclusion or order should not be issued.
(2) In addition to the authority of the Commission to issue a
general exclusion from entry of articles when a respondent appears
to contest an investigation concerning a violation of the
provisions of this section, a general exclusion from entry of
articles, regardless of the source or importer of the articles, may
be issued if -
(A) no person appears to contest an investigation concerning a
violation of the provisions of this section,
(B) such a violation is established by substantial, reliable,
and probative evidence, and
(C) the requirements of subsection (d)(2) of this section are
met.
(h) Sanctions for abuse of discovery and abuse of process
The Commission may by rule prescribe sanctions for abuse of
discovery and abuse of process to the extent authorized by Rule 11
and Rule 37 of the Federal Rules of Civil Procedure.
(i) Forfeiture
(1) In addition to taking action under subsection (d) of this
section, the Commission may issue an order providing that any
article imported in violation of the provisions of this section be
seized and forfeited to the United States if -
(A) the owner, importer, or consignee of the article previously
attempted to import the article into the United States;
(B) the article was previously denied entry into the United
States by reason of an order issued under subsection (d) of this
section; and
(C) upon such previous denial of entry, the Secretary of the
Treasury provided the owner, importer, or consignee of the
article written notice of -
(i) such order, and
(ii) the seizure and forfeiture that would result from any
further attempt to import the article into the United States.
(2) The Commission shall notify the Secretary of the Treasury of
any order issued under this subsection and, upon receipt of such
notice, the Secretary of the Treasury shall enforce such order in
accordance with the provisions of this section.
(3) Upon the attempted entry of articles subject to an order
issued under this subsection, the Secretary of the Treasury shall
immediately notify all ports of entry of the attempted importation
and shall identify the persons notified under paragraph (1)(C).
(4) The Secretary of the Treasury shall provide -
(A) the written notice described in paragraph (1)(C) to the
owner, importer, or consignee of any article that is denied entry
into the United States by reason of an order issued under
subsection (d) of this section; and
(B) a copy of such written notice to the Commission.
(j) Referral to President
(1) If the Commission determines that there is a violation of
this section, or that, for purposes of subsection (e) of this
section, there is reason to believe that there is such a violation,
it shall -
(A) publish such determination in the Federal Register, and
(B) transmit to the President a copy of such determination and
the action taken under subsection (d), (e), (f), (g), or (i) of
this section, with respect thereto, together with the record upon
which such determination is based.
(2) If, before the close of the 60-day period beginning on the
day after the day on which he receives a copy of such
determination, the President, for policy reasons, disapproves such
determination and notifies the Commission of his disapproval, then,
effective on the date of such notice, such determination and the
action taken under subsection (d), (e), (f), (g), or (i) of this
section with respect thereto shall have no force or effect.
(3) Subject to the provisions of paragraph (2), such
determination shall, except for purposes of subsection (c) of this
section, be effective upon publication thereof in the Federal
Register, and the action taken under subsection (d), (e), (f), (g),
or (i) of this section, with respect thereto shall be effective as
provided in such subsections, except that articles directed to be
excluded from entry under subsection (d) of this section or subject
to a cease and desist order under subsection (f) of this section
shall, until such determination becomes final, be entitled to entry
under bond prescribed by the Secretary in an amount determined by
the Commission to be sufficient to protect the complainant from any
injury. If the determination becomes final, the bond may be
forfeited to the complainant. The Commission shall prescribe the
terms and conditions under which bonds may be forfeited under this
paragraph.
(4) If the President does not disapprove such determination
within such 60-day period, or if he notifies the Commission before
the close of such period that he approves such determination, then,
for purposes of paragraph (3) and subsection (c) of this section
such determination shall become final on the day after the close of
such period or the day on which the President notifies the
Commission of his approval, as the case may be.
(k) Period of effectiveness; termination of violation or
modification or rescission of exclusion or order
(1) Except as provided in subsections (f) and (j) of this
section, any exclusion from entry or order under this section shall
continue in effect until the Commission finds, and in the case of
exclusion from entry notifies the Secretary of the Treasury, that
the conditions which led to such exclusion from entry or order no
longer exist.
(2) If any person who has previously been found by the Commission
to be in violation of this section petitions the Commission for a
determination that the petitioner is no longer in violation of this
section or for a modification or rescission of an exclusion from
entry or order under subsection (d), (e), (f), (g), or (i) of this
section -
(A) the burden of proof in any proceeding before the Commission
regarding such petition shall be on the petitioner; and
(B) relief may be granted by the Commission with respect to
such petition -
(i) on the basis of new evidence or evidence that could not
have been presented at the prior proceeding, or
(ii) on grounds which would permit relief from a judgment or
order under the Federal Rules of Civil Procedure.
(l) Importation by or for United States
Any exclusion from entry or order under subsection (d), (e), (f),
(g), or (i) of this section, in cases based on a proceeding
involving a patent, copyright, mask work, or design under
subsection (a)(1) of this section, shall not apply to any articles
imported by and for the use of the United States, or imported for,
and to be used for, the United States with the authorization or
consent of the Government. Whenever any article would have been
excluded from entry or would not have been entered pursuant to the
provisions of such subsections but for the operation of this
subsection, an owner of the patent, copyright, mask work, or design
adversely affected shall be entitled to reasonable and entire
compensation in an action before the United States Court of Federal
Claims pursuant to the procedures of section 1498 of title 28.
(m) "United States" defined
For purposes of this section and sections 1338 and 1340 (!1) of
this title, the term "United States" means the customs territory of
the United States as defined in general note 2 of the Harmonized
Tariff Schedule of the United States.
(n) Disclosure of confidential information
(1) Information submitted to the Commission or exchanged among
the parties in connection with proceedings under this section which
is properly designated as confidential pursuant to Commission rules
may not be disclosed (except under a protective order issued under
regulations of the Commission which authorizes limited disclosure
of such information) to any person (other than a person described
in paragraph (2)) without the consent of the person submitting it.
(2) Notwithstanding the prohibition contained in paragraph (1),
information referred to in that paragraph may be disclosed to -
(A) an officer or employee of the Commission who is directly
concerned with -
(i) carrying out the investigation or related proceeding in
connection with which the information is submitted,
(ii) the administration of a bond posted pursuant to
subsection (e), (f), or (j) of this section,
(iii) the administration or enforcement of an exclusion order
issued pursuant to subsection (d), (e), or (g) of this section,
a cease and desist order issued pursuant to subsection (f) of
this section, or a consent order issued pursuant to subsection
(c) of this section,
(iv) proceedings for the modification or rescission of a
temporary or permanent order issued under subsection (d), (e),
(f), (g), or (i) of this section, or a consent order issued
under this section, or
(v) maintaining the administrative record of the
investigation or related proceeding,
(B) an officer or employee of the United States Government who
is directly involved in the review under subsection (j) of this
section, or
(C) an officer or employee of the United States Customs Service
who is directly involved in administering an exclusion from entry
under subsection (d), (e), or (g) of this section resulting from
the investigation or related proceeding in connection with which
the information is submitted.