[Federal Register Volume 70, Number 14 (Monday, January 24, 2005)]
[Notices]
[Pages 3385-3386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1201]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-406; Enforcement Proceedings (II)]


In the Matter of Certain Lens-Fitted Film Packages; Notice of 
Commission Determinations Concerning Enforcement Measures and 
Respondents' Request for a Stay of Any Order Levying Civil Penalties

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (the Commission) has determined to levy civil penalties 
against respondents Jazz Photo Corp. (Jazz), Jack Benun, and Anthony 
Cossentino, for the violation of the

[[Page 3386]]

Commission cease and desist order issued to Jazz in the original 
investigation. The Commission has further determined not to issue a new 
cease and desist order as requested by complainant Fuji Photo Film Co., 
Ltd., or to modify the existing cease and desist order or exclusion 
order. Finally, the Commission has deemed respondents' request for a 
stay moot in view of its decision to defer enforcement efforts until 
appeals of its civil penalty determinations are exhausted.

FOR FURTHER INFORMATION CONTACT: Mark B. Rees, Esq., telephone 202-205-
3106, Office of the General Counsel, U.S. International Trade 
Commission, 500 E Street, SW., Washington, DC 20436. Copies of all 
nonconfidential documents filed in connection with this investigation 
are or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436, telephone 202-205-2000. General information concerning the 
Commission may also be obtained by accessing its Internet server 
(http://www.usitc.gov). The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS-ON-LINE) at http://dockets.usitc.gov/eol.public. Hearing-impaired persons are advised that 
information on the matter can be obtained by contacting the 
Commission's TDD terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION: The Commission's original investigation in 
this matter was terminated on June 2, 1999, with a finding of violation 
of section 337 by 26 respondents by reason of importation or sales 
after importation of certain lens-fitted film packages (LFFPs) (i.e., 
disposable cameras) that were found to infringe one or more claims of 
15 patents held by complainant Fuji Photo Film Co. (Fuji). 64 FR 30541 
(June 8, 1999). The Commission issued a general exclusion order, 
prohibiting the importation of LFFPs that infringe any of the claims at 
issue, and issued cease and desist orders to twenty domestic 
respondents. Id. The Commission's orders were upheld by the U.S. Court 
of Appeals for the Federal Circuit. Jazz Photo Corp. v. Int'l Trade 
Comm'n, 264 F.3d 1094 (Fed. Cir. 2001), cert. denied, 536 U.S. 950 
(2002).
    On September 24, 2002, the Commission initiated enforcement 
proceedings under Commission rule 210.75(b) against Jazz and Messrs. 
Benun and Cossentino (enforcement respondents), at the request of 
complainant Fuji. The Commission referred the proceedings to the 
presiding Administrative Law Judge (ALJ) to determine whether 
enforcement respondents had violated the general exclusion order or 
cease and desist orders issued by the Commission on June 2, 1999, and 
to recommend appropriate enforcement measures if necessary. 67 FR 61152 
(September 27, 2002).
    On April 6, 2004, the ALJ issued his Enforcement Initial 
Determination (EID) in which he found a violation of the general 
exclusion order and cease and desist order by respondents. He 
ultimately recommended penalties of $13,675,000 against Jazz and Mr. 
Benun, jointly and severally, and $154,000 against Mr. Cossentino, for 
violation of the cease and desist order. He also declined Fuji's 
request to recommend modification of the existing orders or the 
issuance of new orders.
    Fuji, Jazz, Mr. Benun, and Mr. Cossentino timely filed petitions 
for review. All parties, including the investigative attorney (IA), 
filed responses. Based on the petitions and responses, and the record 
developed below, which fully supported the EID's violation findings 
(including that Messrs. Benun and Cossentino were subject to individual 
liability under the circumstances), the Commission determined not to 
review the violation findings and thereby adopted them. 69 FR 46179-
46180 (Aug. 2, 2004). The Commission then requested, per the two-phase 
review established in the notice of initiation, separate briefing on 
whether to adopt the specific enforcement measures recommended by the 
ALJ.
    The Commission received briefs and responses from all parties. 
Based upon its consideration of the EID, the submissions of the 
parties, and the entire record in this proceeding, the Commission 
adopts the EID's recommendations and analysis concerning enforcement 
measures, except as otherwise noted or supplemented in its order and 
opinion (to be issued later). Accordingly, and subject to final 
adjudication of any appeal of the same, the Commission has determined 
to impose a civil penalty in the amount of $13,675,000 against Jazz and 
Mr. Benun, jointly and severally, based on a daily penalty rate of 
$25,000 and 547 violation days. Against Mr. Cossentino, the Commission 
has determined to impose a civil penalty in the amount of $119,750, 
based on a daily penalty rate of $250 and 479 violation days.
    The Commission has further denied Fuji's request for additional 
injunctive or other relief. Finally, with respect to respondents' 
request to stay enforcement of any order assessing civil penalties, the 
Commission finds that such relief is unnecessary and the request thus 
moot because, in this case, the Commission will not pursue enforcement 
efforts prior to the exhaustion of appeals of its civil penalty 
determinations, as indicated in its accompanying order and the opinion 
to be issued.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), and Sec.  210.75 of 
the Commission's Rules of Practice and Procedure (19 CFR 210.75).

    By order of the Commission.

    Issued: January 14, 2005.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-1201 Filed 1-21-05; 8:45 am]
BILLING CODE 7020-02-P