In the Matter of Certain R-134a Coolant (Otherwise Known As 1,1,1,2-Tetrafluoroethane); Notice of Commission Determination To Review the Final Initial Determination in Part and To Remand the Investigation; Schedule for Written Submissions on Remand Determination and on Remedy, the Public Interest, and Bonding, 6172-6173 [E9-2426]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 74, Number 23 (Thursday, February 5, 2009)]
[Notices]
[Pages 6172-6173]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2426]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-623]


In the Matter of Certain R-134a Coolant (Otherwise Known As 
1,1,1,2-Tetrafluoroethane); Notice of Commission Determination To 
Review the Final Initial Determination in Part and To Remand the 
Investigation; Schedule for Written Submissions on Remand Determination 
and on Remedy, the Public Interest, and Bonding

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 to review a portion of the final initial 
determination (``ID'') issued by the presiding administrative law judge 
(``ALJ'') on December 1, 2008, in the above-captioned investigation and 
to remand the investigation to the ALJ.

FOR FURTHER INFORMATION CONTACT: Michelle Walters, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 708-5468. Copies of non-
confidential 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 at 
https://www.usitc.gov. The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at https://
edis.usitc.gov. Hearing-impaired persons are advised that information 
on this matter can be obtained by contacting the Commission's TDD 
terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on December 31, 2007, based on a complaint filed by INEOS Fluor 
Holdings Ltd., INEOS Fluor Ltd., and INEOS Fluor Americas LLC. The 
complaint alleged violations of section 337 of the Tariff Act of 1930 
(19 U.S.C. 1337) in the importation into the United States, the sale 
for importation, and the sale within the United States after 
importation of certain R-134a coolant (otherwise known as 1,1,1,2-
tetrafluoroethane) by reason of infringement of various claims of 
United States Patent No. 5,744,658. Complainants subsequently added 
allegations of infringement with regard to United States Patent Nos. 
5,382,722 and 5,559,276 (``the `276 patent''), but only claim 1 of the 
`276 patent remains at issue in this investigation. The complaint named 
two respondents, Sinochem Modern Environmental Protection Chemicals 
(Xi'an) Co., Ltd. and Sinochem Ningbo Ltd. Two additional respondents 
were subsequently added: Sinochem Environmental Protection Chemicals 
(Taicang) Co., Ltd. and Sinochem (U.S.A.) Inc. All four respondents are 
collectively referred to as ``Sinochem.''
    On December 1, 2008, the ALJ issued his final ID, finding that 
Sinochem violated section 337. He concluded that respondents' ``new'' 
process infringed claim 1 of the `276 patent and that the domestic 
industry requirement had been met. He also found that claim 1 was not 
invalid and that it was not unenforceable. The ALJ recommended that the 
Commission issue a limited exclusion order prohibiting the importation 
into the United States of products made by the infringing process, but 
did not recommend issuing a cease and desist order. The ALJ also 
recommended that the bond to permit importation during the Presidential 
review period be set at 100% of the entered value of the products 
concerned.
    On December 15, 2008, Sinochem filed a petition for review, 
challenging the findings of the ALJ's final ID. On December 23, 2008, 
complainants and the Commission investigative attorney (``IA'') each 
filed a response to respondents' petition for review of the

[[Page 6173]]

final ID. On January 5, 2009, respondents filed a motion for leave to 
file a reply in support of their petition for review of the final ID. 
On January 9, 2009, complainants filed an opposition to respondents' 
motion. On January 15, 2009, the IA also filed an opposition to 
respondents' motion.
    Having examined the record of this investigation, including the 
ALJ's ID and the submissions of the parties, the Commission has 
determined to review the ALJ's determination regarding the effective 
filing date of claim 1 of the `276 patent and to affirm his 
determination with additional reasoning. In addition, the Commission 
has determined to review the ALJ's ID with regard to whether claim 1 of 
the `276 patent is invalid for anticipation or obviousness with respect 
to certain references and to issue an order remanding the investigation 
to the ALJ for further proceedings related to anticipation and 
obviousness with respect to those references. The Commission has 
determined not to review any other determination in the ALJ's ID.
    To accommodate the remand proceedings, the Commission has extended 
the target date of the above-captioned investigation to June 1, 2009, 
and instructed the ALJ to make his determination on remand by April 1, 
2009. The parties are invited to file written submissions on the ALJ's 
remand determination within fourteen days after service of the ALJ's 
determination and to file responses to the written submissions within 
seven days after service of the written submissions. The parties should 
also address remedy, the public interest, and bonding in their 
submissions. Finally, the Commission has determined to deny 
respondents' motion for leave to file a reply in support of their 
petition for review of the final ID.
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
issue one or more cease and desist orders that could result in the 
respondent being required to cease and desist from engaging in unfair 
acts in the importation and sale of such articles. 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 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).
    If 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 U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action. See Presidential Memorandum of 
July 21, 2005, 70 FR 43251 (July 26, 2005). 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 if a remedy is ordered.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issues identified in this notice. 
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. Such 
submissions should address the recommended determination by the ALJ on 
remedy and bonding. Complainants and the Commission investigative 
attorney are also requested to submit proposed remedial orders for the 
Commission's consideration. Complainants are also requested to state 
the dates that the patents expire and the HTSUS numbers under which the 
accused products are imported. The written submissions and proposed 
remedial orders must be filed no later than the close of business 
fourteen days after service of the ALJ's remand determination. Reply 
submissions must be filed no later than the close of business seven 
days after service of the written submissions. The written submissions 
may be no longer than 50 pages and the reply submissions may be no 
longer than 25 pages. 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 
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 19 CFR 210.6. Documents 
for which confidential treatment by the Commission is sought will be 
treated accordingly. All nonconfidential 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 sections 210.42-46 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.42-46).

    Issued: January 30, 2009.

    By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-2426 Filed 2-4-09; 8:45 am]
BILLING CODE 7020-02-P