In the Matter of Certain Ear Protection Devices; Notice of a Commission Determination Not To Review an Initial Determination Terminating the Investigation With Respect to all Remaining Respondents; Issuance of Consent Orders; Request for Written Submissions on Remedy, the Public Interest, and Bonding with Respect to Respondents Found in Default, 21243-21244 [05-8165]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 70, Number 78 (Monday, April 25, 2005)]
[Notices]
[Pages 21243-21244]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-8165]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-518]


In the Matter of Certain Ear Protection Devices; Notice of a 
Commission Determination Not To Review an Initial Determination 
Terminating the Investigation With Respect to all Remaining 
Respondents; Issuance of Consent Orders; Request for Written 
Submissions on Remedy, the Public Interest, and Bonding with Respect to 
Respondents Found in Default

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined not to review an initial determination (ID) 
of the presiding administrative law judge (ALJ) in the above-captioned 
investigation terminating the investigation as to six respondents. The 
investigation was terminated as to two respondents based on settlement 
agreements and consent orders and as to four respondents based on 
consent orders alone. The Commission also is requesting briefing on 
remedy, public interest, and bonding with respect to three respondents 
previously found in default.

FOR FURTHER INFORMATION CONTACT: Michael K. Haldenstein, Esq., 
telephone 202-205-3041, Office of the General Counsel, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436. Copies of all nonconfidential documents filed in connection with 
this investigation are or will be available for inspection during 
official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the 
Secretary, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone 202-205-2000. General information 
concerning the Commission may also be obtained by accessing its 
Internet server (https://www.usitc.gov). The public record for this 
investigation may be viewed on the Commission's electronic docket 
(EDIS-ON-LINE) at https://edis.usitc.gov. Hearing-impaired persons are 
advised that information on the matter can be obtained by contacting 
the Commission's TDD terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on March 16, 2004, based on a complaint filed by 180s, Inc. and 180s, 
LLC of Baltimore, Maryland. Complainants filed an amended complaint on 
July 23, 2004. The amended complaint alleges violations of section 337 
in the importation into the United States, the sale for importation, 
and the sale within the United States after importation of certain ear 
protection devices by reason of infringement of claims 1, 3, 13, 17-19, 
and 21-22 of U.S. Patent No. 5,835,609 (the '609 patent). The complaint 
named nine respondents: Ningbo Electric and Consumer Goods, Import & 
Export Corp. (Ningbo) of China; Vollmacht Enterprise Co., Ltd. 
(Vollmacht) of Taiwan; March Trading of New York, NY; Alicia 
International, Inc., d/b/a Lincolnwood Merchandising of Niles, IL; 
Hebron Imports of Chicago, IL; Ross Sales of Commack, NY; Value Drugs 
Rock, Inc. of New York, NY; Song's Wholesaler (Song's) of Washington, 
DC; and Wang Da, Inc. Retail and Wholesales (Wang Da) of New York, NY. 
The complaint further alleged that an industry in the United States 
exists as required by subsection (a)(2) of section 337.
    On September 24, 2004, complainants filed a motion pursuant 
Commission rule 210.16 for an order to show cause and entry of a 
default judgment against three respondents: Ningbo, Vollmacht, and Wang 
Da. The Commission investigative attorney supported the motion. None of 
the respondents filed a response to the motion. The ALJ issued a show 
cause order (Order No. 4) on October 12, 2004. The order required

[[Page 21244]]

the three respondents to show cause why they should not be held in 
default, having not responded to the complaint or motion for a show 
cause order.
    The ALJ issued an ID on November 2, 2004 finding that respondents 
Ningbo, Vollmacht, and Wang Da did not respond to the complaint, notice 
of investigation, or the order to show cause. Consequently, the ALJ 
found the respondents in default, and pursuant to Commission Rule 
210.16(b)(3), to have waived their right to appear, be served with 
documents, or contest the allegations in the complaint. No petitions 
for review of the ID were filed. The Commission did not review the ID, 
and it thereby became the final determination of the Commission.
    On March 23, 2005, the complainants filed six motions for 
termination of the investigation with respect to the six remaining 
respondents. The motions for termination as to March Trading and Song's 
were based on settlement agreements and consent orders. The four 
remaining motions were based on consent orders alone. The Commission 
Investigative Attorney filed a response in support of the motions on 
March 25, 2005.
    The ALJ issued the subject ID on April 1, 2005, granting the 
motions for termination. No party petitioned for review of the ID 
pursuant to 19 CFR 210.43(a), and the Commission found no basis for 
ordering a review on its own initiative pursuant to 19 CFR 210.44.
    Section 337(g)(1), 19 U.S.C. 1337(g)(1), and Commission Rule 
210.16(c), 19 CFR 210.16(c), authorize the Commission to order limited 
relief against the respondents found in default unless, after 
consideration of public interest factors, it finds that such relief 
should not issue. The Commission may issue an order that could result 
in the exclusion of the defaulting respondents' products from entry 
into the United States, and/or issue one or more cease and desist 
orders that could result in the defaulting respondents being required 
to cease and desist from engaging in unfair acts in the importation and 
sale of their products. Accordingly, the Commission is interested in 
receiving written submissions that address the form of remedy, if any, 
that should be ordered. If a party seeks exclusion of an article from 
entry into the United States for purposes other than entry for 
consumption, the party should so indicate and provide information 
establishing that activities involving other types of entry either are 
adversely affecting it or are likely to do so. For background, see In 
the Matter of Certain Devices for Connecting Computers via Telephone 
Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December 1994) 
(Commission Opinion).
    When the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or cease and desist orders would have on (1) the 
public health and welfare, (2) competitive conditions in the U.S. 
economy, (3) U.S. production of articles that are like or directly 
competitive with those that are subject to investigation, and (4) U.S. 
consumers. The Commission is therefore interested in receiving written 
submissions that address the aforementioned public interest factors in 
the context of this investigation.
    If the Commission orders some form of remedy, the President has 60 
days to approve or disapprove the Commission's action. During this 
period, the subject articles would be entitled to enter the United 
States under bond, in an amount determined by the Commission and 
prescribed by the Secretary of the Treasury. The Commission is 
therefore interested in receiving submissions concerning the amount of 
the bond that should be imposed.
    Written Submissions: The parties to the investigation, interested 
government agencies, and any other interested parties are encouraged to 
file written submissions on the issues of remedy, the public interest, 
and bonding. Complainants and the Commission investigative attorney are 
also requested to submit proposed remedial orders for the Commission's 
consideration. Complainants are asked to provide the expiration date of 
the `609 patent and the HTSUS numbers under which the infringing goods 
are imported. The written submissions and proposed remedial orders must 
be filed no later than close of business on April 29, 2005. Reply 
submissions must be filed no later than the close of business on May 6, 
2005. No further submissions on these issues will be permitted unless 
otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. Any person desiring to submit a document 
(or portion thereof) to the Commission in confidence must request 
confidential treatment unless the information has already been granted 
such treatment during the proceedings. All such requests should be 
directed to the Secretary of the Commission and must include a full 
statement of the reasons why the Commission should grant such 
treatment. See Sec.  201.6 of the Commission's Rules of Practice and 
Procedure, 19 CFR 201.6. Documents for which confidential treatment by 
the Commission is sought will be treated accordingly. All non-
confidential written submissions will be available for public 
inspection at the Office of the Secretary.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in Sec. Sec.  210.16(c), 210.21(c), and 210.42(h) of the Commission's 
Rules of Practice and Procedure.

    Issued: April 19, 2005.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-8165 Filed 4-22-05; 8:45 am]
BILLING CODE 7020-02-P