[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Notices]
[Pages 58147-58149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23035]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-791/826]


Certain Electronic Fireplaces, Components Thereof, Manuals for 
Same, Certain Processes for Manufacturing or Relating to Same and 
Certain Products Containing Same; Determination To Review in Part ALJ 
Initial Determination; Request for Written Submissions

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review-in-part the final initial 
determination (``ID'') (Order No. 20) of the presiding administrative 
law judge (``LJ'') finding the remaining respondents, Shenzhen Reliap 
Industrial Co. (``Reliap'') and Yue Qiu Sheng (``Yue''), both of 
Shenzhen, China, in default and in violation of section 337. The 
Commission has also determined to review the ALJ's Order No. 19 denying 
respondents' motion for summary determination that complainants' breach 
of contract allegation is outside the scope of the investigation. The 
Commission is also requesting briefing on the issue on review and on 
remedy, the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-2310. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW., Washington, DC 20436, 
telephone (202) 205-2000. General

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information concerning the Commission may also be obtained by accessing 
its Internet server at http://www.usitc.gov. The public record for this 
investigation may be viewed on the Commission's electronic docket 
(EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised 
that information on this matter can be obtained by contacting the 
Commission's TDD terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted Investigation No. 
337-TA-791 (``the 791 investigation'') on July 20, 2011, based on a 
complaint filed by Twin-Star International, Inc. of Delray Beach, 
Florida and TS Investment Holding Corp. of Miami, Florida 
(collectively, ``Twin-Star''). 76 FR 43345-46 (July 20, 2011). The 
Commission instituted Investigation No. 337-TA-826 on January 19, 2012 
based on another complaint filed by Twin-Star, and consolidated it with 
the 791 investigation. 77 FR 2757-58 (Jan. 19, 2012). The complaints 
allege a violation of section 337 of the Tariff Act of 1930, as 
amended, 19 U.S.C. 1337, in the importation into the United States, the 
sale for importation, and the sale within the United States after 
importation of certain electric fireplaces, components thereof, manuals 
for same, certain processes for manufacturing or relating to same and 
certain products containing same by reason of infringement of U.S. 
Copyright Nos. TX0007350474; TX0007350476; VA0001772660; and 
VA0001772661; and by reason of misappropriation of trade secrets, 
breach of contract, and tortious inference with contract, the threat or 
effect of which is to destroy or substantially injure an industry in 
the United States.
    The Commission's notice of investigation named Reliap, Yue, and 
Whalen Furniture Manufacturing, Inc. (``Whalen'') of San Diego, 
California as respondents. On July 3, 2012, the Commission issued 
notice of its determination not to review the ALJ's ID terminating the 
investigation as to Whalen based on a consent order and settlement 
agreement.
    On June 20, 2012, Twin-Star moved for an ID finding the remaining 
respondents, Reliap and Yue, in default and in violation of section 337 
pursuant to Commission Rule 210.17, 19 CFR 210.17. The Commission 
investigative attorney filed a response in support of the motion.
    On July 13, 2012, the ALJ granted Twin-Star's motion and issued the 
final ID in this investigation finding the remaining respondents in 
default and in violation of section 337 pursuant to 19 CFR 210.17 
because they did not participate in the investigation following 
withdrawal of their counsel on March 12, 2012. The ID also contained 
the ALJ's recommended determination on remedy. Specifically, the ALJ 
recommended issuance of a limited exclusion order with respect to the 
defaulting respondents.
    Also on July 13, 2012, the ALJ issued Order No. 19, denying a 
motion filed by Yue on December 11, 2011, for summary determination 
that Twin-Star's breach of contract claim is outside the scope of the 
investigation. On July 20, 2012, the Commission investigative attorney 
petitioned for review of Order No. 19 and the ALJ's final ID. Twin-Star 
filed a response in opposition on July 30, 2012.
    Having examined the record of this investigation, including the 
ALJ's ID, Order No. 19, and the parties' briefing, the Commission has 
determined to review Order No. 19 and to review the final ID in part to 
the extent that it finds a violation of section 337 based on the breach 
of contract allegations. The Commission has determined not to review 
the remainder of the ID.
    On review, the parties, interested government agencies, and any 
other interested persons are requested to submit briefing on the issue 
under review and to address in particular the following:
    (1) What support exists for the notion that unfair acts or unfair 
methods of competition under section 337(a)(1)(A), 19 U.S.C. 
1337(a)(1)(A), are limited to ``public wrongs'' as opposed to ``private 
wrongs.'' Please discuss statutory language, any relevant legislative 
history, and legal precedent, particularly Tianrui Group Co. v. U.S. 
Int'l Trade Comm'n, 661 F.3d 1322 (Fed. Cir. 2011).
    (2) Please explain whether a breach of contract claim can give rise 
to a violation of 19 U.S.C. 1337(a)(1)(A), and discuss any relevant 
statutory language, legislative history, and legal precedent.
    In connection with the final disposition of this investigation, the 
Commission may issue an order that results in the exclusion of the 
subject articles from entry into the United States. See 19 U.S.C. 
1337(d). 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 (December 1994) (Commission Opinion).
    When the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or cease and desist orders would have on (1) the 
public health and welfare, (2) competitive conditions in the U.S. 
economy, (3) U.S. production of articles that are like or directly 
competitive with those that are subject to investigation, and (4) U.S. 
consumers. The Commission is therefore interested in receiving written 
submissions that address the aforementioned public interest factors in 
the context of this investigation.
    When the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or disapprove the Commission's action. See Presidential Memorandum of 
July 21, 2005, 70 FR 43251 (July 26, 2005). During this period, the 
subject articles would be entitled to enter the United States under 
bond, in an amount determined by the Commission and prescribed by the 
Secretary of the Treasury. The Commission is therefore interested in 
receiving submissions concerning the amount of the bond that should be 
imposed if a remedy is ordered.
    Written Submissions: The parties to the investigation, interested 
government agencies, and any other interested persons are encouraged to 
file written submissions on the issues of remedy, the public interest, 
and bonding. Complainant is requested to state the issue under review 
and the dates that the copyrights at issue expire and the HTSUS numbers 
under which the accused products are imported. The written submissions 
must be filed no later than close of business on October 12, 2012. 
Reply submissions must be filed no later than the close of business on 
November 9, 2012. 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 and submit 8 
true paper copies to the Office of the Secretary by noon the next day 
pursuant to Commission rule 210.4(f), 19 CFR 210.4(f). Submissions 
should refer to the

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investigation number (``Inv. No. 337-TA-791/826'') in a prominent place 
on the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf).
    Any person desiring to submit a document (or portion thereof) to 
the Commission in confidence must request confidential treatment unless 
the information has already been granted such treatment during the 
proceedings. All such requests should be directed to the Secretary of 
the Commission and must include a full statement of the reasons why the 
Commission should grant such treatment. See 19 CFR 210.6. Documents for 
which confidential treatment by the Commission is sought will be 
treated accordingly. All nonconfidential written submissions will be 
available for public inspection at the Office of the Secretary.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in sections 210.17, 42-43, 45-46 and 50 of the Commission's Rules of 
Practice and Procedure (19 CFR 210.17, 210.42-43, 210.45-46, and 
210.50).

    By order of the Commission.

    Issued: September 13, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-23035 Filed 9-18-12; 8:45 am]
BILLING CODE 7020-02-P