On February 24, 2015, the ITC announced a new pilot program to decide whether redesigns or new products are covered by ITC exclusion orders. The announced goal of the program is to test the use of expedited procedures for the Commission to evaluate and rule on new and redesigned products in modification and advisory proceedings. Under the new program, a party to an ITC investigation that resulted in an exclusion order or an importer can file a petition to determine whether a redesigned or new product should be “carved out” of an existing exclusion order.

Under the ITC’s Rules, a petitioner can seek a modification proceeding to revise a remedy order based on “changed conditions of fact or law.” 19 CFR § 210.76. The ITC’s Rules also provide for requests for an advisory opinion that a proposed course of conduct is outside the scope of a remedy order. 19 CFR § 210.79. In order to petition for a modification proceeding, the petition “should specify that the petitioner could not have brought evidence of the redesign to the Commission during the original investigation (for example, if the redesign was not completed at the time of the original hearing).” ITC Fact Sheet at 1. Provided that a petitioner can meet this standard, a modification proceeding is in many cases strategically preferable, because the determination in such a proceeding is appealable. By contrast, an advisory opinion is not appealable.