Certain Bone Cements, Components Thereof and Products Containing the Same; Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding, 43600-43602 [2020-15459]
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43600
Federal Register / Vol. 85, No. 138 / Friday, July 17, 2020 / Notices
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
[LLNV922000.L2642000.BH0000.
LXHMFAB20000.18X MO# 4500144069]
Notice of Proposed CERCLA
Settlement Agreement for Recovery of
Past Response Costs for the
Anaconda Copper Mine Site,
Yerington, Lyon County, Nevada
Bureau of Land Management,
Interior.
ACTION: Notice of proposed settlement;
request for public comment.
AGENCY:
In accordance with the
Comprehensive Environmental
Response, Compensation and Liability
Act of 1980, as amended (CERCLA),
notice is hereby given that the United
States Department of the Interior (DOI)
has entered into a proposed settlement,
embodied in a CERCLA Settlement
Agreement for Recovery of Past
Response Costs for the Anaconda
Copper Mine Site, Yerington, Lyon
County, Nevada (Settlement
Agreement), with Atlantic Richfield
Company (ARC). Under the proposed
settlement, ARC agrees to pay DOI
compromised past costs incurred by
DOI at the Anaconda Copper Mine Site.
DATES: Comments must be received on
or before August 17, 2020.
ADDRESSES: The Settlement Agreement
is available for public inspection at the
Bureau of Land Management, Nevada
State Office, 1340 Financial Boulevard,
Reno, Nevada 89502, phone: (775) 861–
6400. Comments should be addressed to
Nathalie Doherty, Attorney-Advisor,
Office of the Solicitor, U.S. Department
of the Interior, 601 SW 2nd Avenue,
Suite 1950, Portland, Oregon 97204;
Email: nathalie.doherty@sol.doi.gov;
and should reference the Anaconda
Copper Mine Site. The BLM’s response
to any comments received will be
available for public inspection at the
same address.
FOR FURTHER INFORMATION CONTACT:
Nathalie Doherty, Attorney-Advisor,
Office of the Solicitor, U.S. Department
of the Interior, 601 SW 2nd Avenue,
Suite 1950, Portland, Oregon 97204;
Email: nathalie.doherty@sol.doi.gov;
Phone: (503) 872–2784.
SUPPLEMENTARY INFORMATION: Notice of
this proposed Settlement Agreement is
made in accordance with the Section
122(i) of CERCLA. The Settlement
Agreement entered into under Section
122(h) of CERCLA concerns ARC’s
payment of compromised past costs
incurred by DOI in connection with
Anaconda Copper Mine Site, located
khammond on DSKJM1Z7X2PROD with NOTICES
SUMMARY:
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near Yerington, Lyon County, Nevada.
Parties to the Settlement Agreement
include the DOI and ARC. Under the
Settlement Agreement, ARC agrees to
pay DOI $700,000 in past response
costs. This represents a compromise
payment for past costs incurred by DOI.
In exchange, DOI covenants not to sue
or take administrative action against
ARC pursuant to Section 107(a) of
CERCLA, for DOI’s past response costs
as those costs are defined in the
Settlement Agreement. BLM will
consider all comments received on the
proposed Settlement Agreement in
accordance with the DATES and
ADDRESSES sections of this Notice, and
may modify or withhold its consent to
the proposed Settlement Agreement if
comments received disclose facts or
considerations that indicate that the
proposed Settlement Agreement is
inappropriate, improper, or inadequate.
Jon K. Raby,
State Director, Nevada State Office, Bureau
of Land Management.
[FR Doc. 2020–15471 Filed 7–16–20; 8:45 am]
BILLING CODE 4310–HC–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1153]
Certain Bone Cements, Components
Thereof and Products Containing the
Same; Commission Determination To
Review in Part a Final Initial
Determination Finding a Violation of
Section 337; Schedule for Filing
Written Submissions on the Issues
Under Review and 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 has determined to review
in part the final initial determination
(‘‘final ID’’) issued by the presiding
administrative law judge (‘‘ALJ’’) on
May 6, 2020, finding no violation of
section 337 of the Tariff Act of 1930, as
amended, in connection with the
alleged misappropriation of trade
secrets. The Commission requests
briefing from the parties on certain
issues under review, as indicated in this
notice. The Commission also requests
briefing from the parties, interested
government agencies, and interested
persons on the issues of remedy, the
public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Ron
Traud, Office of the General Counsel,
SUMMARY:
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U.S. International Trade Commission,
500 E Street SW, Washington, DC
20436, telephone (202) 205–3427.
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: The
Commission instituted this investigation
on April 10, 2019, based on a complaint
filed by Heraeus Medical LLC of
Yardley, Pennsylvania, and Heraeus
Medical GmbH of Wehrheim, Germany
(collectively, ‘‘Heraeus’’). 84 FR 14394–
95 (Apr. 10, 2019). The complaint
alleges a violation of section 337 by
reason of misappropriation of trade
secrets, the threat or effect of which is
to destroy or substantially injure a
domestic industry in the United States
or to prevent the establishment of such
an industry. The complaint named the
following respondents: Zimmer Biomet
Holdings, Inc. of Warsaw, Indiana;
Biomet, Inc. of Warsaw, Indiana;
Zimmer Orthopaedic Surgical Products,
Inc. of Dover, Ohio; Zimmer Surgical,
Inc. of Dover, Ohio; Biomet France
S.A.R.L. of Valence, France; Biomet
Deutschland GmbH of Berlin, Germany;
Zimmer Biomet Deutschland GmbH of
Freiburg im Breisgau, Germany; Biomet
Europe B.V. of Dordrecht, Netherlands;
Biomet Global Supply Chain Center B.V.
of Dordrecht, Netherlands; Zimmer
Biomet Nederland B.V. of Dordrecht,
Netherlands; Biomet Orthopedics, LLC
of Warsaw, Indiana; and Biomet
Orthopaedics Switzerland GmbH of
Dietikon, Switzerland. The
Commission’s Office of Unfair Import
Investigations (‘‘OUII’’) also was named
as a party.
The investigation has terminated as to
respondents Zimmer Orthopaedic
Surgical Products, Inc. and Biomet
Europe B.V., Order No. 10 (May 23,
2019), not reviewed, Notice (June 14,
2019), and as to certain accused
products, Order No. 30 (Nov. 24, 2019),
not reviewed, Notice (Dec. 10, 2019).
Also, the first amended complaint and
notice of investigation were amended to
add three entities as respondents:
Zimmer US, Inc.; Zimmer, GmbH; and
Biomet Manufacturing, LLC. Order No.
18 (June 26, 2019), not reviewed, 84 FR
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35884–85 (July 25, 2019). The remaining
respondents are referred to collectively
herein as ‘‘Zimmer Biomet.’’
On May 6, 2020, the ALJ issued the
final ID, which finds that Zimmer
Biomet did not violate section 337.
More particularly, the final ID finds,
inter alia, that: (1) The Commission has
subject matter and personal jurisdiction;
(2) Zimmer Biomet sold for importation
into the United States, imported, or sold
after importation the Accused Products;
(3) a domestic industry exists with
respect to Heraeus’s education, training,
and research and development and
Heraeus owns the asserted trade secrets;
(4) trade secrets (‘‘TS’’) 1–35 are
protectable trade secrets, but TS 121–23,
130–34, and 145 are not protectable
trade secrets; (5) Zimmer Biomet
misappropriated TS 1–35; and (6)
Heraeus did not show a substantial
injury or threat of injury to its domestic
industry by Zimmer Biomet’s
misappropriation.
The final ID includes the ALJ’s
Recommended Determination on
Remedy and Bond (the ‘‘RD’’). The RD
recommends that, if the Commission
finds a violation of section 337, the
Commission should issue a limited
exclusion order directed to copolymer
trade secrets TS 1–35 for five years; a
limited exclusion order directed to the
other categories of asserted trade secrets
for two years or less; and cease and
desist orders directed to Zimmer
Biomet. The RD further recommends
imposing a bond of five percent during
the period of Presidential review.
On May 18, 2020, the parties filed
petitions for review of the final ID, and
on May 26, 2020, the parties filed
responses. Issues not raised in the
petitions for review are deemed to have
been abandoned. 19 CFR 210.43.
Having examined the record in this
investigation, including the final ID, the
petitions for review, and the responses
thereto, the Commission has determined
to review the final ID in part. In
particular, the Commission has
determined to review the following:
(1) The ALJ’s findings and
conclusions as to TS 1–35 and 121–23;
and
(2) The ALJ’s domestic industry
findings, including whether there has
been a substantial injury to the alleged
domestic industry.
The Commission has determined to
not review the remainder of the final ID.
The parties are requested to brief their
positions with reference to the
applicable law and the evidentiary
record regarding the questions provided
below:
(1) For purposes of determining
whether Heraeus has established the
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existence of a domestic industry, if the
final ID’s findings are modified to
exclude expenditures for the Reduce
Revisions initiative and contracting
costs for medical professionals, but to
include the contracting costs for FDA
Group: (A) What would be the dollar
amount of total qualifying investments,
and (B) what evidence and argument
was presented to the administrative law
judge regarding the nature and
significance of those investments?
(2) For purposes of determining
whether Heraeus has established the
existence of a domestic industry, if the
final ID’s findings are modified to
exclude expenditures for the Reduce
Revisions initiative and contracting
costs for medical professionals, and the
contracting costs for FDA Group were
excluded (as the ID did): (A) What
would be the dollar amount of total
qualifying investments, and (B) what
evidence and argument was presented
to the administrative law judge
regarding the nature and significance of
those investments?
(3) For the costs related to educationand-training-related investments (e.g.,
the Reduce Revisions initiative),
discuss: (A) How the Commission and
the Federal Circuit have considered
education-and-training-related
investments in prior investigations, e.g.,
Certain Sleep-Disordered Breathing
Treatment Systems and Components
Thereof, Inv. No. 337–TA–890, Init. Det.
at 168–70 (Aug. 21, 2014), not reviewed
in relevant part, Notice (Oct. 16, 2014),
and (B) how the facts of this
investigation should be assessed in light
of applicable precedent.
(4) For the Reduce Revisions initiative
costs: (A) Are these costs incorporated
into Heraeus’s general marketing
expenses? See Certain Gas Spring Nailer
Products and Components Thereof, Inv.
No. 337–TA–1082, Comm’n Op. at 83
n.20 (Apr. 28, 2020); (B) if the costs are
viewed as marketing expenses, is there
a basis for concluding the costs are
technical marketing costs; and (C) how
should technical marketing costs be
treated?
(5) For the alleged costs related to
FDA and other regulatory approvals and
compliance: (A) Which of those
regulatory efforts had to take place in
the United States (for either legal or
practical reasons), and which could
have been carried out in another
country; and (B) does the record permit
allocation of costs between those two
categories?
(6) Please analyze whether a
complainant bringing a claim under
section 337(a)(1)(A)(i) must demonstrate
that its industry in the United States is
‘‘significant’’ or ‘‘substantial.’’ Please
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43601
include a discussion of the relevant
statutory language, any relevant
legislative history, any relevant Federal
Circuit decisions and any relevant prior
Commission determinations.
In connection with the final
disposition of this investigation, the
statute authorizes issuance of: (1) An
exclusion order that could result in the
exclusion of the subject articles from
entry into the United States, and/or (2)
one or more 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 are 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).
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 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,
disapprove, or take no action on the
Commission’s action. See Presidential
Memorandum of July 21, 2005, 70 FR
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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 questions
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
initial written submissions should
include views on the RD that issued on
May 6, 2020.
In their initial written submission,
Complainants are also requested to
identify the form of the remedy sought,
and Complainants and OUII are
requested to submit proposed remedial
orders for the Commission’s
consideration. Complainants are also
requested to state the HTSUS
subheadings under which the accused
articles are imported, and to supply
identification information for all known
importers of the accused products.
Initial written submissions, including
proposed remedial orders must be filed
no later than the close of business on
July 27, 2020. Reply submissions must
be filed no later than the close of
business on August 3, 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–1153’’) 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 at (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
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18:12 Jul 16, 2020
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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. 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 non-confidential
written submissions will be available for
public inspection at the Office of the
Secretary and on EDIS.
The Commission vote for this
determination took place on July 13,
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: July 13, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–15459 Filed 7–16–20; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Inv. Nos. 701–TA–415 and 731–TA–933–934
(Third Review)]
Polyethylene Terephthalate (PET) Film
From India and Taiwan; Cancellation of
Hearing for Third Full Five-Year
Reviews
United States International
Trade Commission.
ACTION: Notice.
AGENCY:
DATES:
July 10, 2020.
Office of Investigations, U.S.
International Trade Commission, 500 E
Street SW, Washington, DC 20436.
Hearing-impaired persons can obtain
information on this matter 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 (https://
www.usitc.gov). The public record for
these reviews may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov.
SUPPLEMENTARY INFORMATION: Effective
March 18, 2020, the Commission
established a schedule for the conduct
of these reviews (85 FR 16957, March
25, 2020). Counsel for DuPont Teijin
Films, Mitsubishi Polyester Film, Inc.,
SKC, Inc., and Toray Plastics (America),
Inc. and counsel for Polyplex USA, LLC
filed requests to appear at the hearing.
Subsequently, counsel for the domestic
parties filed a joint request for
consideration of cancellation of the
hearing. Counsel indicated a willingness
to submit written responses to any
Commission questions in lieu of an
actual hearing. No other party has
entered an appearance in these reviews.
Upon consideration of the request, the
Commission determined that, in lieu of
the public hearing in connection with
these reviews, scheduled to begin at
9:30 a.m. on Thursday, July 16, 2020,
interested parties who timely made a
request to appear at the hearing are
invited to respond to any written
questions posed by the Commission in
their posthearing briefs, which are due
to be filed on July 23, 2020.
For further information concerning
these reviews see the Commission’s
notice cited above and the
Commission’s Rules of Practice and
Procedure, part 201, subparts A through
E (19 CFR part 201), and part 207,
subparts A and C (19 CFR part 207).
Authority: These reviews are being
conducted under authority of title VII of the
Tariff Act of 1930; this notice is published
pursuant to section 207.62 of the
Commission’s rules.
By order of the Commission.
Issued: July 13, 2020.
Lisa Barton,
Secretary to the Commission.
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2020–15460 Filed 7–16–20; 8:45 am]
Charles Cummings ((202) 708–1666),
BILLING CODE 7020–02–P
PO 00000
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Agencies
[Federal Register Volume 85, Number 138 (Friday, July 17, 2020)]
[Notices]
[Pages 43600-43602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15459]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1153]
Certain Bone Cements, Components Thereof and Products Containing
the Same; Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Schedule for Filing
Written Submissions on the Issues Under Review and 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 has determined to review in part the final initial
determination (``final ID'') issued by the presiding administrative law
judge (``ALJ'') on May 6, 2020, finding no violation of section 337 of
the Tariff Act of 1930, as amended, in connection with the alleged
misappropriation of trade secrets. The Commission requests briefing
from the parties on certain issues under review, as indicated in this
notice. The Commission also requests briefing from the parties,
interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Ron Traud, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3427. 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: The Commission instituted this investigation
on April 10, 2019, based on a complaint filed by Heraeus Medical LLC of
Yardley, Pennsylvania, and Heraeus Medical GmbH of Wehrheim, Germany
(collectively, ``Heraeus''). 84 FR 14394-95 (Apr. 10, 2019). The
complaint alleges a violation of section 337 by reason of
misappropriation of trade secrets, the threat or effect of which is to
destroy or substantially injure a domestic industry in the United
States or to prevent the establishment of such an industry. The
complaint named the following respondents: Zimmer Biomet Holdings, Inc.
of Warsaw, Indiana; Biomet, Inc. of Warsaw, Indiana; Zimmer Orthopaedic
Surgical Products, Inc. of Dover, Ohio; Zimmer Surgical, Inc. of Dover,
Ohio; Biomet France S.A.R.L. of Valence, France; Biomet Deutschland
GmbH of Berlin, Germany; Zimmer Biomet Deutschland GmbH of Freiburg im
Breisgau, Germany; Biomet Europe B.V. of Dordrecht, Netherlands; Biomet
Global Supply Chain Center B.V. of Dordrecht, Netherlands; Zimmer
Biomet Nederland B.V. of Dordrecht, Netherlands; Biomet Orthopedics,
LLC of Warsaw, Indiana; and Biomet Orthopaedics Switzerland GmbH of
Dietikon, Switzerland. The Commission's Office of Unfair Import
Investigations (``OUII'') also was named as a party.
The investigation has terminated as to respondents Zimmer
Orthopaedic Surgical Products, Inc. and Biomet Europe B.V., Order No.
10 (May 23, 2019), not reviewed, Notice (June 14, 2019), and as to
certain accused products, Order No. 30 (Nov. 24, 2019), not reviewed,
Notice (Dec. 10, 2019). Also, the first amended complaint and notice of
investigation were amended to add three entities as respondents: Zimmer
US, Inc.; Zimmer, GmbH; and Biomet Manufacturing, LLC. Order No. 18
(June 26, 2019), not reviewed, 84 FR
[[Page 43601]]
35884-85 (July 25, 2019). The remaining respondents are referred to
collectively herein as ``Zimmer Biomet.''
On May 6, 2020, the ALJ issued the final ID, which finds that
Zimmer Biomet did not violate section 337. More particularly, the final
ID finds, inter alia, that: (1) The Commission has subject matter and
personal jurisdiction; (2) Zimmer Biomet sold for importation into the
United States, imported, or sold after importation the Accused
Products; (3) a domestic industry exists with respect to Heraeus's
education, training, and research and development and Heraeus owns the
asserted trade secrets; (4) trade secrets (``TS'') 1-35 are protectable
trade secrets, but TS 121-23, 130-34, and 145 are not protectable trade
secrets; (5) Zimmer Biomet misappropriated TS 1-35; and (6) Heraeus did
not show a substantial injury or threat of injury to its domestic
industry by Zimmer Biomet's misappropriation.
The final ID includes the ALJ's Recommended Determination on Remedy
and Bond (the ``RD''). The RD recommends that, if the Commission finds
a violation of section 337, the Commission should issue a limited
exclusion order directed to copolymer trade secrets TS 1-35 for five
years; a limited exclusion order directed to the other categories of
asserted trade secrets for two years or less; and cease and desist
orders directed to Zimmer Biomet. The RD further recommends imposing a
bond of five percent during the period of Presidential review.
On May 18, 2020, the parties filed petitions for review of the
final ID, and on May 26, 2020, the parties filed responses. Issues not
raised in the petitions for review are deemed to have been abandoned.
19 CFR 210.43.
Having examined the record in this investigation, including the
final ID, the petitions for review, and the responses thereto, the
Commission has determined to review the final ID in part. In
particular, the Commission has determined to review the following:
(1) The ALJ's findings and conclusions as to TS 1-35 and 121-23;
and
(2) The ALJ's domestic industry findings, including whether there
has been a substantial injury to the alleged domestic industry.
The Commission has determined to not review the remainder of the
final ID.
The parties are requested to brief their positions with reference
to the applicable law and the evidentiary record regarding the
questions provided below:
(1) For purposes of determining whether Heraeus has established the
existence of a domestic industry, if the final ID's findings are
modified to exclude expenditures for the Reduce Revisions initiative
and contracting costs for medical professionals, but to include the
contracting costs for FDA Group: (A) What would be the dollar amount of
total qualifying investments, and (B) what evidence and argument was
presented to the administrative law judge regarding the nature and
significance of those investments?
(2) For purposes of determining whether Heraeus has established the
existence of a domestic industry, if the final ID's findings are
modified to exclude expenditures for the Reduce Revisions initiative
and contracting costs for medical professionals, and the contracting
costs for FDA Group were excluded (as the ID did): (A) What would be
the dollar amount of total qualifying investments, and (B) what
evidence and argument was presented to the administrative law judge
regarding the nature and significance of those investments?
(3) For the costs related to education-and-training-related
investments (e.g., the Reduce Revisions initiative), discuss: (A) How
the Commission and the Federal Circuit have considered education-and-
training-related investments in prior investigations, e.g., Certain
Sleep-Disordered Breathing Treatment Systems and Components Thereof,
Inv. No. 337-TA-890, Init. Det. at 168-70 (Aug. 21, 2014), not reviewed
in relevant part, Notice (Oct. 16, 2014), and (B) how the facts of this
investigation should be assessed in light of applicable precedent.
(4) For the Reduce Revisions initiative costs: (A) Are these costs
incorporated into Heraeus's general marketing expenses? See Certain Gas
Spring Nailer Products and Components Thereof, Inv. No. 337-TA-1082,
Comm'n Op. at 83 n.20 (Apr. 28, 2020); (B) if the costs are viewed as
marketing expenses, is there a basis for concluding the costs are
technical marketing costs; and (C) how should technical marketing costs
be treated?
(5) For the alleged costs related to FDA and other regulatory
approvals and compliance: (A) Which of those regulatory efforts had to
take place in the United States (for either legal or practical
reasons), and which could have been carried out in another country; and
(B) does the record permit allocation of costs between those two
categories?
(6) Please analyze whether a complainant bringing a claim under
section 337(a)(1)(A)(i) must demonstrate that its industry in the
United States is ``significant'' or ``substantial.'' Please include a
discussion of the relevant statutory language, any relevant legislative
history, any relevant Federal Circuit decisions and any relevant prior
Commission determinations.
In connection with the final disposition of this investigation, the
statute authorizes issuance of: (1) An exclusion order that could
result in the exclusion of the subject articles from entry into the
United States, and/or (2) one or more 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 are
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).
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
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,
disapprove, or take no action on the Commission's action. See
Presidential Memorandum of July 21, 2005, 70 FR
[[Page 43602]]
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 questions 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 initial
written submissions should include views on the RD that issued on May
6, 2020.
In their initial written submission, Complainants are also
requested to identify the form of the remedy sought, and Complainants
and OUII are requested to submit proposed remedial orders for the
Commission's consideration. Complainants are also requested to state
the HTSUS subheadings under which the accused articles are imported,
and to supply identification information for all known importers of the
accused products. Initial written submissions, including proposed
remedial orders must be filed no later than the close of business on
July 27, 2020. Reply submissions must be filed no later than the close
of business on August 3, 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-1153'') 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 at (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. 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 non-confidential written submissions will be available
for public inspection at the Office of the Secretary and on EDIS.
The Commission vote for this determination took place on July 13,
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: July 13, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-15459 Filed 7-16-20; 8:45 am]
BILLING CODE 7020-02-P