Certain Luxury Vinyl Tile and Components Thereof; Commission Determination To Review in Part and, on Review, To Affirm an Initial Determination Granting Summary Determination of Violation by Defaulting Respondents; Request for Written Submissions on Remedy, the Public Interest, and Bonding, 40683-40685 [2020-14500]
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Federal Register / Vol. 85, No. 130 / Tuesday, July 7, 2020 / Notices
the presiding administrative law judge
(‘‘ALJ’’) granting complainants’
unopposed motion to terminate the
investigation in its entirety based on
withdrawal of the complaint. The
investigation is terminated.
FOR FURTHER INFORMATION CONTACT:
Michael Liberman, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–2392. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.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.
On March
12, 2020, the Commission instituted Inv.
No. 337–TA–1192, Certain Nicotine
Pouches and Components Thereof and
Methods of Making the Same, under
section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337 (‘‘section
337’’), based on a complaint filed by
NYZ AB of Stockholm, Sweden;
Swedish Match North America, LLC of
Richmond, Virginia; Pinkerton Tobacco
Co., LP of Owensboro, Kentucky; and
wm17 holding GmbH of Switzerland
(collectively, ‘‘Complainants’’). 85 FR
14505–06 (Mar. 12, 2020). A
supplement to the complaint was filed
on February 21, 2020. The complaint
alleges a violation of section 337 based
upon the importation into the United
States, the sale for importation, and the
sale within the United States after
importation of certain nicotine pouches
and components thereof and methods of
making the same by reason of
infringement of certain claims of U.S.
Patent No. 9,161,908 (‘‘the ’908 patent’’).
Id. at 14505. The Commission’s notice
of investigation names as respondents
The Art Factory AB of Helsingborg,
Sweden; Kretek International, Inc. of
Moorpark, California; and DRYFT
Sciences, LLC of Moorpark, California
(collectively, ‘‘Respondents’’). Id. at
14506. The Commission’s Office of
Unfair Import Investigations also was
named as a party. Id. Subsequently, the
investigation was terminated as to
claims 18 and 20 of the ’908 patent.
Order No. 7 (May 15, 2020), nonreviewed in relevant part by
Commission Notice (June 15, 2020).
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SUPPLEMENTARY INFORMATION:
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On May 29, 2020, Complainants filed
an unopposed motion seeking to
terminate this investigation in its
entirety based on withdrawal of the
complaint.
On June 11, 2020, the presiding ALJ
issued the subject ID granting
Complainants’ motion. The ALJ found
that the motion complies with the
Commission Rules, and that there are no
extraordinary circumstances that
warrant denying the motion. No party
petitioned for review of the ID.
The Commission has determined not
to review the subject ID. The
investigation is terminated.
The Commission vote for this
determination took place on June 30,
2020.
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 Part
210 of the Commission’s Rules of
Practice and Procedure (19 CFR part
210).
By order of the Commission.
Issued: June 30, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–14467 Filed 7–6–20; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1155]
Certain Luxury Vinyl Tile and
Components Thereof; Commission
Determination To Review in Part and,
on Review, To Affirm an Initial
Determination Granting Summary
Determination of Violation by
Defaulting Respondents; Request for
Written Submissions on Remedy, the
Public Interest, and Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘Commission’’) has
determined to review in part and, on
review, to affirm an initial
determination (‘‘ID’’) of the presiding
administrative law judge (‘‘ALJ’’)
granting summary determination of
violation of section 337 by certain
defaulting respondents. The
Commission requests written
submissions from the parties, interested
government agencies, and interested
persons on the issues of remedy, the
public interest, and bonding, under the
schedule set forth below.
SUMMARY:
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40683
FOR FURTHER INFORMATION CONTACT:
Lynde Herzbach, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–3228. Copies of non-confidential
documents filed in connection with this
investigation may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.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: On May
16, 2019, the Commission instituted this
investigation based on a complaint filed
by Mohawk Industries, Inc. of Calhoun,
Georgia; Flooring Industries Ltd. Sarl of
Bertrange, Luxembourg; and IVC US Inc.
of Dalton, Georgia (collectively,
‘‘Complainants’’). 84 FR 22161 (May 16,
2019). The complaint, as supplemented,
alleges a violation of section 337 of the
Tariff Act of 1930, as amended, 19
U.S.C. 1337 (‘‘section 337’’) in the
importation into the United States, the
sale for importation, or the sale within
the United States after importation of
certain luxury vinyl tiles by reason of
infringement of certain claims of U.S.
Patent Nos. 9,200,460 (‘‘the ’460
patent’’); 10,208,490 (‘‘the ’490 patent’’);
and 10,233,655 (‘‘the ’655 patent’’)
(collectively, ‘‘the Asserted Patents’’).
Id. The complaint further alleges that a
domestic industry exists. Id. The
Commission’s notice of investigation
names forty-five respondents, including:
ABK Trading Corp. of Katy, Texas
(‘‘ABK’’); Aurora Flooring LLC of
Kennesaw, Georgia (‘‘Aurora’’);
Changzhou Runchang Wood Co., Ltd. of
Jiangsu, China (‘‘Runchang’’); Go-Higher
Trading (Jiangsu) Co., Ltd. of Jiangsu,
China (‘‘Go-Higher’’); Jiangsu Divine
Building Technology Development Co.,
Ltd. Jiangsu, China (‘‘Divine’’); Jiangsu
Lejia Plastic Co. Ltd. of Jiangsu, China
(‘‘Lejia’’); JiangSu Licheer Wood Co.,
Ltd. of Jiangsu, China (‘‘Licheer’’);
Maxwell Flooring Distribution LLC of
Houston, Texas (‘‘Maxwell Flooring’’);
Mr. Hardwood Inc. of Acworth, Georgia
(‘‘Mr. Hardwood’’); and Sam Houston
Hardwood Inc. of Houston, Texas (‘‘Sam
Houston’’) (collectively, ‘‘Defaulting
Respondents’’). Id. The Office of Unfair
Import Investigations (‘‘OUII’’) is also
participating in the investigation. Id.
The Commission previously
terminated the investigation as to thirty-
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40684
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five respondents based on settlement,
consent order, or partial withdrawal of
the complaint. See Order No. 14 (Sept.
26, 2019), not rev’d, Notice (Oct. 17,
2019); Order Nos. 15–21 (Sept. 27, 2019
for all), not rev’d, Notice (Oct. 17, 2019);
Order Nos. 23–25 (Oct. 2, 2019 for all),
not rev’d, Notice (Oct. 23, 2019); Order
No. 27 (Oct. 9, 2019), not rev’d, Notice
(Nov. 6, 2019); Order No. 26 (Oct. 9,
2019)), not rev’d, Notice (Nov. 8, 2019);
Order No. 30 (Oct. 25, 2019), not rev’d,
Notice (Nov. 21, 2019); Order No. 34
(Nov. 7, 2019), not rev’d, Notice (Dec.
11, 2019); Order No. 35 (Jan. 24, 2020),
not rev’d, Notice (Feb. 25, 2020).
On November 21, 2019, the
Commission found respondent GoHigher in default. See Order No. 31
(Oct. 25, 2019), not rev’d, Notice (Nov.
21, 2019). On November 22, 2019, the
Commission found an additional eight
respondents in default: ABK; Aurora;
Divine; Lejia; Licheer; Maxwell
Flooring; Mr. Hardwood; and Sam
Houston. See Order No. 32 (Oct. 30,
2019), not rev’d, Notice (Nov. 22, 2019).
On November 25, 2019, the Commission
found respondent Runchang in default.
See Order No. 33 (Oct. 30, 2019), not
rev’d, Notice (Nov. 25, 2019).
On January 15, 2020, Complainants
filed a motion for summary
determination of domestic industry and
violation of section 337 by the
Defaulting Respondents. Complainants
filed supplements to their summary
determination motion on January 23,
2020, February 11, 2020, and February
19, 2020.
On February 12, 2020, OUII filed a
response to Complainants’ motion. On
May 14, 2020, OUII filed a supplemental
response.
On May 15, 2020, the ALJ issued the
subject ID (Order No. 36) granting the
motion for summary determination and
finding a violation of section 337 by the
Defaulting Respondents. The ALJ
recommended that the Commission
issue a GEO and CDOs against the five
domestic respondents: ABK, Aurora,
Maxwell Flooring, Mr. Hardwood, and
Sam Houston. The ALJ also
recommended setting a bond of $0.08
per square foot of luxury vinyl tile
product and components thereof
imported during the period of
Presidential review. Id. No party
petitioned for review of the subject ID.
Having reviewed the record of the
investigation, the Commission has
determined to review the subject ID in
part, and on review, to affirm the ID’s
finding of violation. Specifically, the
Commission has determined to review
and, on review, to take no position on
the ID’s findings regarding the economic
prong under subsection 337(a)(3)(B)
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with respect to the ’460 patent. The
Commission has also determined to
review the ID’s findings regarding a
domestic industry ‘‘in the process of
being established’’ with respect to the
’490 and ’655 patents and affirms those
findings but with the following
clarifications: The ID addresses the
issue of domestic industry for the ’490
and ’655 patents under the theory of
whether the industry is ‘‘in the process
of being established’’ since that is the
theory advanced by Complainants. In
affirming the ID’s findings, the
Commission does not intend to imply
that the investments already made with
respect to the ’490 and ’655 patents are
not substantial or could not be used to
show the existence of a domestic
industry under section 337(a)(3).
Further, although the ‘‘IVC Foamed
Rigid LVT’’ product asserted by the
Complainants is not yet commercially
manufactured, under Commission
precedent there is no requirement that
there be a commercial domestic
industry product in order to establish an
existing domestic industry. See Certain
Thermoplastic-Encapsulated Electric
Motors, Components Thereof, and
Products and Vehicles Containing Same
II, Inv. No. 337–TA–1073, Comm’n Op.
at 9 (Aug. 12, 2019) (public version).
The Commission has also determined to
review the ID’s findings with respect to
the two products from non-parties, the
Quickstyle and Uniflor Aqua products.
The Commission has determined not
to review the remainder of the ID,
including the findings that
Complainants have satisfied the
domestic industry requirement under
subsection 337(a)(3)(A) with respect to
the ’460 patent. Accordingly, the
Commission affirms the ID’s finding of
a violation of section 337 by the
Defaulting Respondents’ importation of
luxury vinyl tiles and components
thereof that infringe one or more of
claims 7–8, 13, 15–17, 20–23, and 30 of
the ’460 patent, claims 1–6, 8, 10–11,
13–16, and 18 of the ’490 patent, and
claims 1–4, 6–16, 18, and 20–26 of the
’655 patent.
In connection with the final
disposition of this investigation, the
statute authorizes issuance of, inter alia,
(1) an exclusion order that could result
in the exclusion of the subject articles
from entry into the United States and/
or (2) cease and desist orders that could
result in the respondents 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
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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 Certain Devices for
Connecting Computers via Telephone
Lines, Inv. No. 337–TA–360, USITC
Pub. No. 2843, Comm’n Op. at 7–10
(Dec. 1994). In addition, if a party seeks
issuance of any cease and desist orders,
the written submissions should address
that request in the context of recent
Commission opinions, including those
in Certain Arrowheads with Deploying
Blades and Components Thereof and
Packaging Therefor, Inv. No. 337–TA–
977, Comm’n Op. (Apr. 28, 2017) and
Certain Electric Skin Care Devices,
Brushes and Chargers Therefor, and Kits
Containing the Same, Inv. No. 337–TA–
959, Comm’n Op. (Feb. 13, 2017).
Specifically, if Complainants seek a
cease and desist order against a
respondent, the written submissions
should respond to the following
requests:
1. Please identify with citations to the
record any information regarding
commercially significant inventory in
the United States as to each respondent
against whom a cease and desist order
is sought. If Complainants also rely on
other significant domestic operations
that could undercut the remedy
provided by an exclusion order, please
identify with citations to the record
such information as to each respondent
against whom a cease and desist order
is sought.
2. In relation to the infringing
products, please identify any
information in the record, including
allegations in the pleadings, that
addresses the existence of any domestic
inventory, any domestic operations, or
any sales-related activity directed at the
United States for each respondent
against whom a cease and desist order
is sought.
3. Please discuss any other basis upon
which the Commission could enter a
cease and desist order.
4. To the extent Complainants seek a
cease and desist order against defaulting
respondent Runchang, please address
whether the requirements of section
337(g)(1)(A)–(E) are satisfied with
respect to Runchang.
The statute requires the Commission
to consider the effects of that remedy
upon the public interest. The public
interest factors the Commission will
consider include the effect that an
exclusion order would have on: (1) The
public health and welfare, (2)
competitive conditions in the U.S.
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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,
disapprove, or take no action on the
Commission’s determination. 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: 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.
In their initial submission,
Complainants are also requested to
identify the remedy sought and
Complainants and OUII are requested to
submit proposed remedial orders for the
Commission’s consideration.
Complainants are further requested to
state the dates that the Asserted Patents
expire, the HTSUS subheadings under
which the accused products are
imported, and to supply the
identification information for all known
importers of the products at issue in this
investigation. The initial written
submissions and proposed remedial
orders must be filed no later than close
of business on July 15, 2020. Reply
submissions must be filed no later than
the close of business on July 22, 2020.
No further submissions on these issues
will be permitted unless otherwise
ordered by the Commission.
Persons filing written submissions
must file the original document
electronically on or before the deadlines
stated above. The Commission’s paper
filing requirements in 19 CFR 210.4(f)
are currently waived. 85 FR 15798
(March 19, 2020). Submissions should
refer to the investigation number (Inv.
No. 337–TA–1155) in a prominent place
on the cover page and/or the first page.
(See Handbook for Electronic Filing
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16:59 Jul 06, 2020
Jkt 250001
Procedures, https://www.usitc.gov/
documents/handbook_on_filing_
procedures.pdf). Persons with questions
regarding filing should contact the
Secretary, (202) 205–2000.
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment. All such requests should be
directed to the Secretary to the
Commission and must include a full
statement of the reasons why the
Commission should grant such
treatment. See 19 CFR 201.6. Documents
for which confidential treatment by the
Commission is properly sought will be
treated accordingly. A redacted nonconfidential version of the document
must also be filed simultaneously with
any confidential filing. All information,
including confidential business
information and documents for which
confidential treatment is properly
sought, submitted to the Commission for
purposes of this investigation may be
disclosed to and used: (i) By the
Commission, its employees and Offices,
and contract personnel (a) for
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
and evaluations relating to the
programs, personnel, and operations of
the Commission including under 5
U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract
personnel, solely for cybersecurity
purposes. All contract personnel will
sign appropriate nondisclosure
agreements. All nonconfidential written
submissions will be available for public
inspection on EDIS.
The Commission vote for this
determination took place on June 30,
2020.
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 part
210 of the Commission’s Rules of
Practice and Procedure (19 CFR part
210).
By order of the Commission.
Issued: June 30, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–14500 Filed 7–6–20; 8:45 am]
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1204]
Certain Chemical Mechanical
Planarization Slurries and Components
Thereof: Institution of Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that a
complaint was filed with the U.S.
International Trade Commission on June
1, 2020, under section 337 of the Tariff
Act of 1930, as amended, on behalf of
Cabot Microelectronics Corporation of
Aurora, Illinois. The complaint alleges
violations of section 337 based upon the
importation into the United States, the
sale for importation, and the sale within
the United States after importation of
certain chemical mechanical
planarization (‘‘CMP’’) slurries and
components thereof by reason of
infringement of U.S. Patent No.
9,499,721 (‘‘the ’721 patent’’). The
complaint further alleges that an
industry in the United States exists as
required by the applicable Federal
Statute. The complainant requests that
the Commission institute an
investigation and, after the
investigation, issue a limited exclusion
order and cease and desist orders.
ADDRESSES: The complaint, except for
any confidential information contained
therein, may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. Hearing impaired
individuals are advised that information
on this matter can be obtained by
contacting the Commission’s TDD
terminal on (202) 205–1810. Persons
with mobility impairments who will
need special assistance in gaining access
to the Commission should contact the
Office of the Secretary at (202) 205–
2000. General information concerning
the Commission may also be obtained
by accessing its internet server at
https://www.usitc.gov.
FOR FURTHER INFORMATION CONTACT:
Pathenia M. Proctor, The Office of
Unfair Import Investigations, U.S.
International Trade Commission,
telephone (202) 205–2560.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Authority: The authority for institution of
this investigation is contained in section 337
of the Tariff Act of 1930, as amended, 19
U.S.C. 1337, and in section 210.10 of the
Commission’s Rules of Practice and
Procedure, 19 CFR 210.10 (2020).
BILLING CODE 7020–02–P
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Scope of Investigation: Having
considered the complaint, the U.S.
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]]>Agencies
[Federal Register Volume 85, Number 130 (Tuesday, July 7, 2020)]
[Notices]
[Pages 40683-40685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14500]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1155]
Certain Luxury Vinyl Tile and Components Thereof; Commission
Determination To Review in Part and, on Review, To Affirm an Initial
Determination Granting Summary Determination of Violation by Defaulting
Respondents; Request for Written Submissions on Remedy, the Public
Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to review in part and, on
review, to affirm an initial determination (``ID'') of the presiding
administrative law judge (``ALJ'') granting summary determination of
violation of section 337 by certain defaulting respondents. The
Commission requests written submissions from the parties, interested
government agencies, and interested persons on the issues of remedy,
the public interest, and bonding, under the schedule set forth below.
FOR FURTHER INFORMATION CONTACT: Lynde Herzbach, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3228. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
[email protected]. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.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: On May 16, 2019, the Commission instituted
this investigation based on a complaint filed by Mohawk Industries,
Inc. of Calhoun, Georgia; Flooring Industries Ltd. Sarl of Bertrange,
Luxembourg; and IVC US Inc. of Dalton, Georgia (collectively,
``Complainants''). 84 FR 22161 (May 16, 2019). The complaint, as
supplemented, alleges a violation of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337 (``section 337'') in the importation
into the United States, the sale for importation, or the sale within
the United States after importation of certain luxury vinyl tiles by
reason of infringement of certain claims of U.S. Patent Nos. 9,200,460
(``the '460 patent''); 10,208,490 (``the '490 patent''); and 10,233,655
(``the '655 patent'') (collectively, ``the Asserted Patents''). Id. The
complaint further alleges that a domestic industry exists. Id. The
Commission's notice of investigation names forty-five respondents,
including: ABK Trading Corp. of Katy, Texas (``ABK''); Aurora Flooring
LLC of Kennesaw, Georgia (``Aurora''); Changzhou Runchang Wood Co.,
Ltd. of Jiangsu, China (``Runchang''); Go-Higher Trading (Jiangsu) Co.,
Ltd. of Jiangsu, China (``Go-Higher''); Jiangsu Divine Building
Technology Development Co., Ltd. Jiangsu, China (``Divine''); Jiangsu
Lejia Plastic Co. Ltd. of Jiangsu, China (``Lejia''); JiangSu Licheer
Wood Co., Ltd. of Jiangsu, China (``Licheer''); Maxwell Flooring
Distribution LLC of Houston, Texas (``Maxwell Flooring''); Mr. Hardwood
Inc. of Acworth, Georgia (``Mr. Hardwood''); and Sam Houston Hardwood
Inc. of Houston, Texas (``Sam Houston'') (collectively, ``Defaulting
Respondents''). Id. The Office of Unfair Import Investigations
(``OUII'') is also participating in the investigation. Id.
The Commission previously terminated the investigation as to
thirty-
[[Page 40684]]
five respondents based on settlement, consent order, or partial
withdrawal of the complaint. See Order No. 14 (Sept. 26, 2019), not
rev'd, Notice (Oct. 17, 2019); Order Nos. 15-21 (Sept. 27, 2019 for
all), not rev'd, Notice (Oct. 17, 2019); Order Nos. 23-25 (Oct. 2, 2019
for all), not rev'd, Notice (Oct. 23, 2019); Order No. 27 (Oct. 9,
2019), not rev'd, Notice (Nov. 6, 2019); Order No. 26 (Oct. 9, 2019)),
not rev'd, Notice (Nov. 8, 2019); Order No. 30 (Oct. 25, 2019), not
rev'd, Notice (Nov. 21, 2019); Order No. 34 (Nov. 7, 2019), not rev'd,
Notice (Dec. 11, 2019); Order No. 35 (Jan. 24, 2020), not rev'd, Notice
(Feb. 25, 2020).
On November 21, 2019, the Commission found respondent Go-Higher in
default. See Order No. 31 (Oct. 25, 2019), not rev'd, Notice (Nov. 21,
2019). On November 22, 2019, the Commission found an additional eight
respondents in default: ABK; Aurora; Divine; Lejia; Licheer; Maxwell
Flooring; Mr. Hardwood; and Sam Houston. See Order No. 32 (Oct. 30,
2019), not rev'd, Notice (Nov. 22, 2019). On November 25, 2019, the
Commission found respondent Runchang in default. See Order No. 33 (Oct.
30, 2019), not rev'd, Notice (Nov. 25, 2019).
On January 15, 2020, Complainants filed a motion for summary
determination of domestic industry and violation of section 337 by the
Defaulting Respondents. Complainants filed supplements to their summary
determination motion on January 23, 2020, February 11, 2020, and
February 19, 2020.
On February 12, 2020, OUII filed a response to Complainants'
motion. On May 14, 2020, OUII filed a supplemental response.
On May 15, 2020, the ALJ issued the subject ID (Order No. 36)
granting the motion for summary determination and finding a violation
of section 337 by the Defaulting Respondents. The ALJ recommended that
the Commission issue a GEO and CDOs against the five domestic
respondents: ABK, Aurora, Maxwell Flooring, Mr. Hardwood, and Sam
Houston. The ALJ also recommended setting a bond of $0.08 per square
foot of luxury vinyl tile product and components thereof imported
during the period of Presidential review. Id. No party petitioned for
review of the subject ID.
Having reviewed the record of the investigation, the Commission has
determined to review the subject ID in part, and on review, to affirm
the ID's finding of violation. Specifically, the Commission has
determined to review and, on review, to take no position on the ID's
findings regarding the economic prong under subsection 337(a)(3)(B)
with respect to the '460 patent. The Commission has also determined to
review the ID's findings regarding a domestic industry ``in the process
of being established'' with respect to the '490 and '655 patents and
affirms those findings but with the following clarifications: The ID
addresses the issue of domestic industry for the '490 and '655 patents
under the theory of whether the industry is ``in the process of being
established'' since that is the theory advanced by Complainants. In
affirming the ID's findings, the Commission does not intend to imply
that the investments already made with respect to the '490 and '655
patents are not substantial or could not be used to show the existence
of a domestic industry under section 337(a)(3). Further, although the
``IVC Foamed Rigid LVT'' product asserted by the Complainants is not
yet commercially manufactured, under Commission precedent there is no
requirement that there be a commercial domestic industry product in
order to establish an existing domestic industry. See Certain
Thermoplastic-Encapsulated Electric Motors, Components Thereof, and
Products and Vehicles Containing Same II, Inv. No. 337-TA-1073, Comm'n
Op. at 9 (Aug. 12, 2019) (public version). The Commission has also
determined to review the ID's findings with respect to the two products
from non-parties, the Quickstyle and Uniflor Aqua products.
The Commission has determined not to review the remainder of the
ID, including the findings that Complainants have satisfied the
domestic industry requirement under subsection 337(a)(3)(A) with
respect to the '460 patent. Accordingly, the Commission affirms the
ID's finding of a violation of section 337 by the Defaulting
Respondents' importation of luxury vinyl tiles and components thereof
that infringe one or more of claims 7-8, 13, 15-17, 20-23, and 30 of
the '460 patent, claims 1-6, 8, 10-11, 13-16, and 18 of the '490
patent, and claims 1-4, 6-16, 18, and 20-26 of the '655 patent.
In connection with the final disposition of this investigation, the
statute authorizes issuance of, inter alia, (1) an exclusion order that
could result in the exclusion of the subject articles from entry into
the United States and/or (2) cease and desist orders that could result
in the respondents 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 Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op.
at 7-10 (Dec. 1994). In addition, if a party seeks issuance of any
cease and desist orders, the written submissions should address that
request in the context of recent Commission opinions, including those
in Certain Arrowheads with Deploying Blades and Components Thereof and
Packaging Therefor, Inv. No. 337-TA-977, Comm'n Op. (Apr. 28, 2017) and
Certain Electric Skin Care Devices, Brushes and Chargers Therefor, and
Kits Containing the Same, Inv. No. 337-TA-959, Comm'n Op. (Feb. 13,
2017). Specifically, if Complainants seek a cease and desist order
against a respondent, the written submissions should respond to the
following requests:
1. Please identify with citations to the record any information
regarding commercially significant inventory in the United States as to
each respondent against whom a cease and desist order is sought. If
Complainants also rely on other significant domestic operations that
could undercut the remedy provided by an exclusion order, please
identify with citations to the record such information as to each
respondent against whom a cease and desist order is sought.
2. In relation to the infringing products, please identify any
information in the record, including allegations in the pleadings, that
addresses the existence of any domestic inventory, any domestic
operations, or any sales-related activity directed at the United States
for each respondent against whom a cease and desist order is sought.
3. Please discuss any other basis upon which the Commission could
enter a cease and desist order.
4. To the extent Complainants seek a cease and desist order against
defaulting respondent Runchang, please address whether the requirements
of section 337(g)(1)(A)-(E) are satisfied with respect to Runchang.
The statute requires the Commission to consider the effects of that
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
would have on: (1) The public health and welfare, (2) competitive
conditions in the U.S.
[[Page 40685]]
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,
disapprove, or take no action on the Commission's determination. 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: 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.
In their initial submission, Complainants are also requested to
identify the remedy sought and Complainants and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainants are further requested to state the dates that the Asserted
Patents expire, the HTSUS subheadings under which the accused products
are imported, and to supply the identification information for all
known importers of the products at issue in this investigation. The
initial written submissions and proposed remedial orders must be filed
no later than close of business on July 15, 2020. Reply submissions
must be filed no later than the close of business on July 22, 2020. No
further submissions on these issues will be permitted unless otherwise
ordered by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1155) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding
filing should contact the Secretary, (202) 205-2000.
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. A
redacted non-confidential version of the document must also be filed
simultaneously with any confidential filing. All information, including
confidential business information and documents for which confidential
treatment is properly sought, submitted to the Commission for purposes
of this investigation may be disclosed to and used: (i) By the
Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel, solely for cybersecurity purposes.
All contract personnel will sign appropriate nondisclosure agreements.
All nonconfidential written submissions will be available for public
inspection on EDIS.
The Commission vote for this determination took place on June 30,
2020.
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 part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: June 30, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-14500 Filed 7-6-20; 8:45 am]
BILLING CODE 7020-02-P
