Certain Raised Garden Beds and Components Thereof; Notice of a Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions on Remedy, the Public Interest, and Bonding, 2645-2647 [2024-00649]
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Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Notices
(2) Pursuant to section 210.10(b)(1) of
the Commission’s Rules of Practice and
Procedure, 19 CFR 210.10(b)(1), the
plain language description of the
accused products or category of accused
products, which defines the scope of the
investigation, is ‘‘one-wheeled, selfbalancing electric skateboards that move
in response to a rider’s weight
distribution on the board’’;
(3) Pursuant to section 210.58 of the
Commission’s Rules of Practice and
Procedure, 19 CFR 210.58, the motion
for temporary relief under subsection (e)
of section 337 of the Tariff Act of 1930,
which was filed with the complaint, is
provisionally accepted and referred to
the presiding administrative law judge
for investigation;
(4) For the purpose of the
investigation so instituted, the following
are hereby named as parties upon which
this notice of investigation shall be
served:
(a) The complainant is:
Future Motion, Inc., 1201 Shaffer Road,
Santa Cruz, California 95060
(b) The respondents are the following
entities alleged to be in violation of
section 337, and are the parties upon
which the complaint is to be served:
Floatwheel, 5th Tech Rd Industry
Complex, Building 06 F27 15, Guilin
City, GuangXi Province 546008, China
Changzhou Smilo Motors Co., Ltd.,
Guzhuang, Benniu Town, Xinbei
District, Changzhou, Jiangsu Province,
China
Changzhou Gaea Technology Co., Ltd.,
Changxin Industrial Park, No. 218,
Taishan Road, Xinbei District,
Changzhou, Jiangsu, China
Shanghai Loyal Industry Co., Ltd., d/b/
a ‘‘SoverSky’’, Room 204–192, 500
Chuansha Road, Shanghai, China
(c) The Office of Unfair Import
Investigations, U.S. International Trade
Commission, 500 E Street SW, Suite
401, Washington, DC 20436; and
(5) For the investigation so instituted,
the Chief Administrative Law Judge,
U.S. International Trade Commission,
shall designate the presiding
Administrative Law Judge.
Responses to the complaint and the
notice of investigation must be
submitted by the named respondents in
accordance with section 210.13 of the
Commission’s Rules of Practice and
Procedure, 19 CFR 210.13. Pursuant to
19 CFR 201.16(e) and 210.13(a), as
amended in 85 FR 15798 (March 19,
2020), such responses will be
considered by the Commission if
received not later than 20 days after the
date of service by the complainant of the
complaint and the notice of
investigation. Extensions of time for
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submitting responses to the complaint
and the notice of investigation will not
be granted unless good cause therefor is
shown.
Failure of a respondent to file a timely
response to each allegation in the
complaint and in this notice may be
deemed to constitute a waiver of the
right to appear and contest the
allegations of the complaint and this
notice, and to authorize the
administrative law judge and the
Commission, without further notice to
the respondent, to find the facts to be as
alleged in the complaint and this notice
and to enter an initial determination
and a final determination containing
such findings, and may result in the
issuance of an exclusion order or a cease
and desist order or both directed against
the respondent.
By order of the Commission.
Issued: January 9, 2024.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2024–00614 Filed 1–12–24; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1334]
Certain Raised Garden Beds and
Components Thereof; Notice of a
Commission Determination To Review
in Part a Final Initial Determination
Finding a Violation of Section 337;
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 a final
initial determination on violation of
section 337 (the ‘‘Final ID’’) issued by
the presiding administrative law judge
(‘‘ALJ’’) finding a violation of section
337 by reason of misappropriation of
trade secrets and unfair competition
based on false advertising under the
Lanham Act. The Commission requests
written submissions from the parties,
interested government agencies, and
other interested persons on the issues of
remedy, the public interest, and
bonding, under the schedule set forth
below.
FOR FURTHER INFORMATION CONTACT:
Edward S. Jou, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
SUMMARY:
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Washington, DC 20436, telephone (202)
205–3316. 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 October 19, 2022, based on an
amended complaint (the ‘‘Complaint’’)
filed by Vego Garden, Inc. of Houston,
Texas (the ‘‘Complainant’’ or ‘‘Vego
Garden’’). 87 FR 63527–28 (Oct. 19,
2022). The Complaint alleges violations
of section 337 of the Tariff Act of 1930,
as amended, 19 U.S.C. 1337, based upon
the importation into the United States,
and in the sale of, certain raised garden
beds and components thereof by reason
of misappropriation of trade secrets and
unfair competition, the threat or effect
of which is to destroy or substantially
injure a domestic industry. Id. at 63527.
The Commission’s notice of
investigation named five respondents,
see id., and the name of one of the
respondents was corrected pursuant to
an amended complaint. See 88 FR
2637–38 (Jan. 17, 2023) (amending
complaint and notice of investigation).
The five named respondents, as
amended, are: Huizhou Green Giant
Technology Co., Ltd. (‘‘Green Giant’’) of
Guangdong, China; Utopban
International Trading Co., Ltd. d/b/a
Vegega (‘‘Utopban International’’) of
Rosemead, California; Utopban Limited
(‘‘Utopban’’) of Hong Kong, China;
Forever Garden of El Monte, California;
and VegHerb, LLC d/b/a Frame It All
(‘‘VegHerb’’) of Cary, North Carolina.
See id. at 2638. The Office of Unfair
Import Investigations (‘‘OUII’’) is also a
party in this investigation. Id.
The investigation was terminated as
to Utopban International based on
withdrawal of the complaint’s
allegations. Order No. 9 (Jan. 30, 2023),
unreviewed by Comm’n Notice (Feb. 27,
2023). The investigation was terminated
as to Forever Garden and VegHerb based
on settlement agreements. Order No. 11
(Feb. 23, 2023) (VegHerb) and Order No.
12 (Feb. 23, 2023) (Forever Garden),
both unreviewed by Comm’n Notice
(Mar. 23, 2023).
An evidentiary hearing was held on
May 22–25, 2023, and the ALJ issued
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the Final ID on September 8, 2023,
finding violations of section 337 by
reason of misappropriation of trade
secrets and unfair competition based on
false advertising under the Lanham Act.
The ALJ also issued a recommended
determination (‘‘RD’’) on September 8,
2023. The RD recommended the
issuance of limited exclusion orders for
Green Giant and Utopban and a cease
and desist order for Utopban. The RD
further recommended that a 100% bond
be set during the Presidential review
period.
Respondents Green Giant and
Utopban filed a petition for review of
the Final ID on September 20, 2023.
Complainant Vego Garden filed a
response in opposition to the petition
on September 28, 2023. OUII filed a
response in opposition to the petition
on October 2, 2023.
Having reviewed the record of the
investigation, including the Final ID, the
parties’ submissions to the ALJ, the
petition for review and responses
thereto, the Commission has determined
to review the Final ID in part.
Specifically, the Commission has
determined to review the ID’s findings
with respect to: (1) the Commission’s
statutory authority to investigate unfair
acts under section 337(a)(1)(A)
involving extraterritorial conduct,
including the alleged trade secret
misappropriation and false advertising
under the Lanham Act; (2) the ID’s
findings of trade secret
misappropriation with respect to the
product development research trade
secret and the product manufacturing
trade secret; and (3) all of the ID’s
findings with respect to domestic
industry (i.e., the existence of a
domestic industry and injury to the
domestic industry) (ID at 103–136). The
Commission has determined not to
review the remaining findings in the ID.
In connection with its review, the
Commission requests responses to the
following questions. The parties are
requested to brief their positions with
reference to the applicable law and the
existing evidentiary record.
(1) Discuss and identify any record
evidence or arguments that were
presented to the ALJ describing or
documenting the customer feedback,
market research, and cost analysis that
was alleged to be part of the product
development research trade secret.
(2) Discuss and identify any record
evidence or arguments that were
presented to the ALJ showing
dissemination outside of Vego Garden of
the customer feedback, market research,
and cost analysis alleged to be part of
the product development research trade
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secret and the acquisition or use of such
information by Respondents.
(3) When was the product
development research trade secret
allegedly misappropriated? Discuss and
identify any record evidence or
arguments that were presented to the
ALJ describing or documenting the state
of Vego Garden’s customer feedback,
market research, and cost analysis
relating to its 8-inch product
development at the time of the alleged
misappropriation. See, e.g., Final ID 77–
78.
(4) Discuss and identify any record
evidence or arguments that were
presented to the ALJ showing whether
the product manufacturing trade secret
was developed, in whole or in part, in
the United States. In your response to
this question, please address the
claimed research and development costs
for this trade secret, Mr. Xiong’s
testimony regarding the development of
the bending machine, and the identity
and location of the named inventor on
the Chinese patent application that is
alleged to describe the bending
machine. See Final ID at 52–53 (citing
research and development costs for
bending machine); Tr. (Xiong) at 62:14–
21 (describing design of bending
machine); JX–0021 (Chinese patent
application).
(5) Discuss and identify any record
evidence or arguments that were
presented to the ALJ explaining the
relationship between the alleged
research and development costs for the
asserted product development research
and product manufacturing trade secrets
and the asserted domestic industry
expenditures. See Final ID at 35
(research and development costs for 8inch product), 52–53 (research and
development costs for bending
machine), 108–19 (asserted domestic
industry expenditures).
(6) Discuss and identify any record
evidence or arguments that were
presented to the ALJ supporting or
contradicting the ID’s determination to
allocate the entirety of Vego Garden’s
farm purchase and 2022 expenses to the
domestic industry. See Final ID at 114.
When responding to this issue, please
address Mr. Xiong’s testimony
describing different uses of the farm
property. See Tr. (Xiong) at 36:12–21
(research and development and
marketing), 41:19–25 (office space).
(7) Discuss and identify any record
evidence or arguments that were
presented to the ALJ regarding the
accuracy and reliability of the ID’s
allocations of rental expenses and ‘‘nonreal-estate, non-payroll R&D expenses’’
to the domestic industry. See Final ID
at 114–15.
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(8) Discuss and identify any record
evidence or arguments that were
presented to the ALJ regarding the
expenses that are reflected in the $7.3
million in expenses cited by Mr. Xiong
at the hearing. See Tr. (Xiong) at 41:1–
42:3; CDX–0003.
(9) Discuss and identify any record
evidence or arguments that were
presented to the ALJ regarding the
alleged injury to the domestic industry
that can be attributed to the alleged
misappropriation of the product
development research trade secret.
The parties are invited to brief only
the discrete issues requested above. The
parties are not to brief other issues on
review, which are adequately presented
in the parties’ existing filings.
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 respondent(s) 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).
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 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
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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: 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.
In its initial submission, Complainant
is also requested to identify the remedy
sought and Complainant and OUII are
requested to submit proposed remedial
orders for the Commission’s
consideration. Complainant is further
requested to provide 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 January 23,
2024. Reply submissions must be filed
no later than the close of business on
January 30, 2024. Opening submissions
are limited to 50 pages. Reply
submissions are limited to 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
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 (Mar.
19, 2020). Submissions should refer to
the investigation number (‘‘Inv. No.
337–TA–1334’’) 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 by marking each document
with a header indicating that the
document contains confidential
information. This marking will be
deemed to satisfy the request procedure
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set forth in Rules 201.6(b) and
210.5(e)(2) (19 CFR 201.6(b) &
210.5(e)(2)). Documents for which
confidential treatment by the
Commission is properly sought will be
treated accordingly. Any non-party
wishing to submit comments containing
confidential information must serve
those comments on the parties to the
investigation pursuant to the applicable
Administrative Protective Order. A
redacted non-confidential version of the
document must also be filed
simultaneously with any confidential
filing and must be served in accordance
with Commission Rule 210.4(f)(7)(ii)(A)
(19 CFR 210.4(f)(7)(ii)(A)). 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 January 9,
2024.
This action is taken under the
authority of 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: January 9, 2024.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2024–00649 Filed 1–12–24; 8:45 am]
BILLING CODE 7020–02–P
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DEPARTMENT OF LABOR
Occupational Safety and Health
Administration
[Docket No. OSHA–2009–0025]
UL LLC: Grant of Expansion of
Recognition and Modification to the
NRTL Program’s List of Appropriate
Test Standards
Occupational Safety and Health
Administration (OSHA), Labor.
ACTION: Notice.
AGENCY:
In this notice, OSHA
announces the final decision to expand
the scope of recognition for UL LLC, as
a Nationally Recognized Testing
Laboratory (NRTL). Additionally, OSHA
announces the final decision to add
thirteen test standards to the NRTL
Program’s List of Appropriate Test
Standards.
SUMMARY:
The expansion of the scope of
recognition becomes effective on
January 16, 2024.
FOR FURTHER INFORMATION CONTACT:
Information regarding this notice is
available from the following sources:
Press inquiries: Contact Mr. Frank
Meilinger, Director, OSHA Office of
Communications, U.S. Department of
Labor; telephone (202) 693–1999 or
email meilinger.francis2@dol.gov.
General and technical information:
Contact Mr. Kevin Robinson, Director,
Office of Technical Programs and
Coordination Activities, Directorate of
Technical Support and Emergency
Management, Occupational Safety and
Health Administration, U.S. Department
of Labor; telephone (202) 693–1911 or
email robinson.kevin@dol.gov.
SUPPLEMENTARY INFORMATION:
DATES:
I. Notice of Final Decision
OSHA hereby gives notice of the
expansion of the scope of recognition of
UL LLC, (UL) as a NRTL. UL’s
expansion covers the addition of thirtyfive test standards to the NRTL scope of
recognition.
OSHA recognition of a NRTL signifies
that the organization meets the
requirements specified in 29 CFR
1910.7. Recognition is an
acknowledgment that the organization
can perform independent safety testing
and certification of the specific products
covered within the scope of recognition.
Each NRTL’s scope of recognition
includes (1) the type of products the
NRTL may test, with each type specified
by the applicable test standard; and (2)
the recognized site(s) that has/have the
technical capability to perform the
product-testing and product-
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]]>Agencies
[Federal Register Volume 89, Number 10 (Tuesday, January 16, 2024)]
[Notices]
[Pages 2645-2647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00649]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1334]
Certain Raised Garden Beds and Components Thereof; Notice of a
Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; 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 a final
initial determination on violation of section 337 (the ``Final ID'')
issued by the presiding administrative law judge (``ALJ'') finding a
violation of section 337 by reason of misappropriation of trade secrets
and unfair competition based on false advertising under the Lanham Act.
The Commission requests written submissions from the parties,
interested government agencies, and other interested persons on the
issues of remedy, the public interest, and bonding, under the schedule
set forth below.
FOR FURTHER INFORMATION CONTACT: Edward S. Jou, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3316. 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 October 19, 2022, based on an amended complaint (the ``Complaint'')
filed by Vego Garden, Inc. of Houston, Texas (the ``Complainant'' or
``Vego Garden''). 87 FR 63527-28 (Oct. 19, 2022). The Complaint alleges
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337, based upon the importation into the United States, and in
the sale of, certain raised garden beds and components thereof by
reason of misappropriation of trade secrets and unfair competition, the
threat or effect of which is to destroy or substantially injure a
domestic industry. Id. at 63527.
The Commission's notice of investigation named five respondents,
see id., and the name of one of the respondents was corrected pursuant
to an amended complaint. See 88 FR 2637-38 (Jan. 17, 2023) (amending
complaint and notice of investigation). The five named respondents, as
amended, are: Huizhou Green Giant Technology Co., Ltd. (``Green
Giant'') of Guangdong, China; Utopban International Trading Co., Ltd.
d/b/a Vegega (``Utopban International'') of Rosemead, California;
Utopban Limited (``Utopban'') of Hong Kong, China; Forever Garden of El
Monte, California; and VegHerb, LLC d/b/a Frame It All (``VegHerb'') of
Cary, North Carolina. See id. at 2638. The Office of Unfair Import
Investigations (``OUII'') is also a party in this investigation. Id.
The investigation was terminated as to Utopban International based
on withdrawal of the complaint's allegations. Order No. 9 (Jan. 30,
2023), unreviewed by Comm'n Notice (Feb. 27, 2023). The investigation
was terminated as to Forever Garden and VegHerb based on settlement
agreements. Order No. 11 (Feb. 23, 2023) (VegHerb) and Order No. 12
(Feb. 23, 2023) (Forever Garden), both unreviewed by Comm'n Notice
(Mar. 23, 2023).
An evidentiary hearing was held on May 22-25, 2023, and the ALJ
issued
[[Page 2646]]
the Final ID on September 8, 2023, finding violations of section 337 by
reason of misappropriation of trade secrets and unfair competition
based on false advertising under the Lanham Act. The ALJ also issued a
recommended determination (``RD'') on September 8, 2023. The RD
recommended the issuance of limited exclusion orders for Green Giant
and Utopban and a cease and desist order for Utopban. The RD further
recommended that a 100% bond be set during the Presidential review
period.
Respondents Green Giant and Utopban filed a petition for review of
the Final ID on September 20, 2023. Complainant Vego Garden filed a
response in opposition to the petition on September 28, 2023. OUII
filed a response in opposition to the petition on October 2, 2023.
Having reviewed the record of the investigation, including the
Final ID, the parties' submissions to the ALJ, the petition for review
and responses thereto, the Commission has determined to review the
Final ID in part. Specifically, the Commission has determined to review
the ID's findings with respect to: (1) the Commission's statutory
authority to investigate unfair acts under section 337(a)(1)(A)
involving extraterritorial conduct, including the alleged trade secret
misappropriation and false advertising under the Lanham Act; (2) the
ID's findings of trade secret misappropriation with respect to the
product development research trade secret and the product manufacturing
trade secret; and (3) all of the ID's findings with respect to domestic
industry (i.e., the existence of a domestic industry and injury to the
domestic industry) (ID at 103-136). The Commission has determined not
to review the remaining findings in the ID.
In connection with its review, the Commission requests responses to
the following questions. The parties are requested to brief their
positions with reference to the applicable law and the existing
evidentiary record.
(1) Discuss and identify any record evidence or arguments that were
presented to the ALJ describing or documenting the customer feedback,
market research, and cost analysis that was alleged to be part of the
product development research trade secret.
(2) Discuss and identify any record evidence or arguments that were
presented to the ALJ showing dissemination outside of Vego Garden of
the customer feedback, market research, and cost analysis alleged to be
part of the product development research trade secret and the
acquisition or use of such information by Respondents.
(3) When was the product development research trade secret
allegedly misappropriated? Discuss and identify any record evidence or
arguments that were presented to the ALJ describing or documenting the
state of Vego Garden's customer feedback, market research, and cost
analysis relating to its 8-inch product development at the time of the
alleged misappropriation. See, e.g., Final ID 77-78.
(4) Discuss and identify any record evidence or arguments that were
presented to the ALJ showing whether the product manufacturing trade
secret was developed, in whole or in part, in the United States. In
your response to this question, please address the claimed research and
development costs for this trade secret, Mr. Xiong's testimony
regarding the development of the bending machine, and the identity and
location of the named inventor on the Chinese patent application that
is alleged to describe the bending machine. See Final ID at 52-53
(citing research and development costs for bending machine); Tr.
(Xiong) at 62:14-21 (describing design of bending machine); JX-0021
(Chinese patent application).
(5) Discuss and identify any record evidence or arguments that were
presented to the ALJ explaining the relationship between the alleged
research and development costs for the asserted product development
research and product manufacturing trade secrets and the asserted
domestic industry expenditures. See Final ID at 35 (research and
development costs for 8-inch product), 52-53 (research and development
costs for bending machine), 108-19 (asserted domestic industry
expenditures).
(6) Discuss and identify any record evidence or arguments that were
presented to the ALJ supporting or contradicting the ID's determination
to allocate the entirety of Vego Garden's farm purchase and 2022
expenses to the domestic industry. See Final ID at 114. When responding
to this issue, please address Mr. Xiong's testimony describing
different uses of the farm property. See Tr. (Xiong) at 36:12-21
(research and development and marketing), 41:19-25 (office space).
(7) Discuss and identify any record evidence or arguments that were
presented to the ALJ regarding the accuracy and reliability of the ID's
allocations of rental expenses and ``non-real-estate, non-payroll R&D
expenses'' to the domestic industry. See Final ID at 114-15.
(8) Discuss and identify any record evidence or arguments that were
presented to the ALJ regarding the expenses that are reflected in the
$7.3 million in expenses cited by Mr. Xiong at the hearing. See Tr.
(Xiong) at 41:1-42:3; CDX-0003.
(9) Discuss and identify any record evidence or arguments that were
presented to the ALJ regarding the alleged injury to the domestic
industry that can be attributed to the alleged misappropriation of the
product development research trade secret.
The parties are invited to brief only the discrete issues requested
above. The parties are not to brief other issues on review, which are
adequately presented in the parties' existing filings.
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 respondent(s) 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).
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
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
[[Page 2647]]
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: 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.
In its initial submission, Complainant is also requested to
identify the remedy sought and Complainant and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainant is further requested to provide 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 January 23, 2024. Reply submissions must be filed no later than the
close of business on January 30, 2024. Opening submissions are limited
to 50 pages. Reply submissions are limited to 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
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 (Mar. 19, 2020). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1334'') 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 by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. Any non-
party wishing to submit comments containing confidential information
must serve those comments on the parties to the investigation pursuant
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed simultaneously
with any confidential filing and must be served in accordance with
Commission Rule 210.4(f)(7)(ii)(A) (19 CFR 210.4(f)(7)(ii)(A)). 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 January 9,
2024.
This action is taken under the authority of 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: January 9, 2024.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2024-00649 Filed 1-12-24; 8:45 am]
BILLING CODE 7020-02-P
