2310-006A Exclusion Orders

Published CBP guidance; operative status and applicability must be assessed from the retained publisher edition.

Customs Directive No. 2310-006A
Date: December 16, 1999
Originating Office: OR&R
Supersedes: 2310-006 Nov 21,1989
Review Date: December 2001
EXCLUSION ORDERS
1. PURPOSE. To present information on Customs polici es and procedures
concerning Exclusion Orders issued by the International Trade Commission.
2. AUTHORITY. Title 19, United States Code, Section 1337; 19 CFR § 12.39.
3. BACKGROUND. Under Section 337 of the Tariff Act of 1930 (19 USC § 1337),
unfair methods of competition and unfair practices in the importation or sale of articles,
the effect or tendency of which is to destroy, substantially injure, or prevent the
establish ment of an efficiently and economically operated U.S. industry, or to restrain or
monopolize trade and commerce in the United States, are unlawful. Additionally,
Section 337 declares unlawful the importation into the United States of articles which
infringe a U.S. patent, registered trademark, copyright, or mask work. Subsequent to an
investigation of an alleged violation under Section 337, where the U.S. International
Trade Commission (ITC) determines that Section 337 has been violated, the
Commission may issue orders directing the Secretary of the Treasury to exclude the
subject goods from entry into the United States.
3.1 Under Section 337 of the Tariff Act of 1930, as amended, unfair methods of
competition and unfair practices in the importation or sale of articles, the effect or
tendency of which is to destroy, substantially injure, or prevent the establish ment of an
efficiently and economically operated U.S. industry, or to restrain or monopolize trade
and commerce in the United States, are unlawful.
3.2 Exclusion Orders issued by the ITC are sent to the President for review. During
the 60 day review period, if the order is not disapproved by the President or if the
President affirmatively approves the order during this period, the order becomes final.
Customs enforces Exclusion Orders both prior and subsequent to their becoming final.
In cases involving importations which occur within the 60 day Presidential review period,
the otherwise excludable articles may be entered under a single entry bond on Customs
Form 301, containing the bond conditions set forth in 19 CFR § 113.62 in an amount
determined by the ITC. After the Presidential review period, where the Exclusion Order
becomes final, the bond conditions no longer apply and the goods are subject to
exclusion.

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3.3 Exclusion Orders may be either “General” ( meaning all goods of a certain
description must be denied entry, with specified exceptions) or “Limited” (meaning all
goods of a certain description imported by a certain company or companies must be
denied entry). Limited exclusion orders are sometimes directed against goods
manufactured by or exported by a certain company or companies. The nature of the
Exclusion Order itself, and the parameters of enforcement, will be detailed in the
Exclusion Order Notice.
3.4 Seizure and Forfeiture Orders. In addition to issuing Exclusion Orders, the ITC
may also issue Seizure and Forfeiture Orders where the importer attempts, after
previously having had the same goods denied entry pursuant to an Exclusion Order,
and having been notified by Customs that seizure and forfeiture could result from future
attempted entries, a subsequent importation of similar goods which are the subject of
the Exclusion Order. Importations of articles in contravention of Seizure and Forfeiture
Orders should be seized and forfeited under 19 U.S.C. §1337(i), as implemented by
19 CFR §12.39(c) .
4. ENFORCEMENT. In general, Exclusion Orders issued by the ITC are
administered by the Office of Regulations & Rulings, IPR Branch, but are processed by
the Office of Field Operations. Upon receipt of orders from the ITC, an “Excl usion Order
Notice” is released to the field through the Office of Field Operations. Notices regarding
the enforcement of exclusion orders are to be transmitted to the field via the U.S.
Customs Bulletin Board (Trade Enforce ment, OTO1). Exclusion Order Notices will
provide details relative to the enforcement of a particular order. Exclusion Orders are
catalogued within the ACS/IPR module in the same manner as trademarks and
copyrights.
4.1 Procedures. The strategic operational analysis staff (SOAS) will update cargo
and/or summary selectivity criteria to include exclusion order i nformation.
4.1.1 Given the highly technical nature of articles which are the subject of most
Exclusion Orders, Customs officers should seek the advice of Customs laboratories,
which provide technical assistance in determining whether goods meet the parameters
of the subject patent. Field officers may contact the designated field laboratory
servici ng their geographic area or the Laboratories and Scientific Services at Customs
Headquarters for advice.
4.1.2 Where goods determined to be subject to an Exclusion Order are presented to
Customs, field officers must exclude the goods from entry into the United States and
permit export. Note that “in bond” movements of restricted merchandise subject to an
Exclusion Order, although transported through the United States, do not enter the
United States and are thereby considered excluded from the United States.

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4.1.3 Written notification of such exclusion must be provided to the importer. A sample
letter to be issued to the importer in such a case is attached to this Directive.
4.1.4 Copies of denial of entry letters sent pursuant to Exclusion Orders are to be sent
by the Port to:
4.1.4.1 U.S. Customs Service, Office of Regulations & Rulings, IPR Branch, Room 3.4A,
1300 Pennsylvania Ave., NW., Washington, D.C. 20229
4.1.4.2 U.S. International T rade Commission, Office of General Counsel
500 E Street, SW., Washington, D.C. 20436
5. RESPONSIBILITIES. Customs field officers are responsible for following this
Directive. Area/Port Directors, Assistant Port Directors (Trade Operations), supervisory
import specialists, and supervisory inspectors are responsible for ensuring that their
staffs are aware of the content of this Directive and adhere to the guidelines provided.
Signed
Commissioner of Customs
Attachment

Appendix
DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
(IMPORTER)

Sir/Madam:

This is to advise you that the following shipment is deemed excludable from entry into

the United States by Order of the U.S. International Trade Commission for v iolation of

337-TA-, an Exclusion Order:

Patent/Trademark/Copyright Registration Number:

U.S. International Trade Commission Case No: 337-TA-

Article Denied Entry:

Quantity:

Vessel/Airline:

Bill of Lading:

Date of Denial of Entry:

You have 30 days from the date of this letter to export the subject merchandise from the

United States. If the merchandise is not exported within 30 days, it will be disposed of

under Customs supervision pursuant to 19 CFR § 12.39(b)(3) and (c) (5).

A copy of this notice is being furnished to the U.S. International Trade Commission.

You are hereby notified that any future attempt to import such articles may result in the

articles being seized and forfeited.

Sincerely,
Area/Port Director
cc: U.S. International Trade Commission
U.S. Customs, Office of Regulations & Rulings