[Federal Register Volume 85, Number 79 (Thursday, April 23, 2020)]
[Notices]
[Pages 22753-22754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08599]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1159]
Certain Lithium Ion Batteries, Battery Cells, Battery Modules,
Battery Packs, Components Thereof, and Processes Therefor; Commission
Decision To Review an Initial Determination in Its Entirety; 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.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review the presiding administrative law
judge's (``ALJ's'') initial determination (``ID'') (Order No. 34)
finding a violation of section 337 of the Tariff Act of 1930, as
amended. The Commission requests briefing from the parties on certain
issues under review, as set forth in this notice. The Commission also
requests briefing from the parties, interested persons, and government
agencies on the issues of remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Esq., Office of
the General Counsel, U.S. International Trade Commission, 500 E Street
SW, Washington, DC 20436, telephone (202) 708-2532. 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 http://www.usitc.gov. Hearing-impaired persons are advised that information on
this matter can be obtained by contacting the Commission's TDD
terminal, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on June 4, 2019, based on a complaint filed on behalf of LG Chem, Ltd.
of South Korea and LG Chem Michigan, Inc. of Holland, Michigan
(collectively, ``complainants'' or ``LG''). 84 FR 25858 (June 4, 2019).
The complaint, as supplemented, alleges violations of Section 337 of
the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation
and sale of certain lithium ion batteries, battery cells, battery
modules, battery packs, components thereof, and processes therefor by
reason of misappropriation of trade secrets, the threat or effect of
which is to destroy or substantially injure an industry in the United
States, under subsection (a)(1)(A) of Section 337. The complaint, as
supplemented, names SK Innovation Co., Ltd. of Seoul, South Korea and
SK Battery America, Inc. of Atlanta, Georgia as the respondents
(collectively, ``respondents'' or ``SK''). The Office of Unfair Import
Investigations (``OUII'') was also named as a party in this
investigation.
On November 5, 2019, LG moved for an order entering default
judgment against the respondents due to contempt of Order No. 13, which
granted in part complainants' motion to compel forensic examination of
respondents' computer system due to spoliation of evidence. Respondents
opposed the motion and OUII supported the motion.
On February 14, 2020, the ALJ issued the subject initial
determination (``ID'') (Order No. 34) finding that the respondents
spoliated evidence, and that the appropriate remedy is to find the
respondents in default. The ID noted that complainants do not seek a
general exclusion order, and therefore no issues remain to be
litigated, and terminated the investigation. ID at 131.
On March 3, 2020, SK filed a petition for Commission review of the
ID. On March 11, 2020, LG and OUII filed oppositions thereto. On March
17, 2020, SK moved for leave to file a reply, which LG opposed on March
18, 2020, and OUII opposed on March 24, 2020.
Having reviewed the record of the investigation, including Order
No. 13, the subject ID, the parties' submissions to the ALJ, and SK's
submission and LG's and OUII's responses thereto, the Commission has
determined to review the ID in its entirety. Accordingly, the
Commission has determined to deny SK's motion for leave to file a reply
as moot.
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\
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\1\ In reviewing the ID, and in seeking briefing on these
issues, the Commission has not determined to excuse any party's
noncompliance with Commission rules and the ALJ's procedural
requirements, including requirements to present issues in a timely
manner. See, e.g., Order No. 2 (June 4, 2019) (ground rules). The
Commission may, for example, decline to disturb certain findings in
the ID upon finding that issue was not presented in a timely manner
to the ALJ.
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(1) Please discuss what the destroyed evidence was, and whether
there are plausible, concrete suggestions as to what the destroyed
evidence might have been, in connection with misappropriation of trade
secrets (e.g., if SK had not obtained documents and confidences from
former LG employees, that SK would not have been able to develop its
battery technologies, its battery technologies would not have been as
good, or it would have taken longer for SK to develop its battery
technologies).
(2) Please discuss what the destroyed evidence was, and whether
there are plausible, concrete suggestions as to what the destroyed
evidence might have been, in connection with the economic injury
requirement of section 337 or the ``threat'' of economic injury, see 19
U.S.C. 1337(a)(1)(A) & (a)(1)(A)(i) (e.g., SK intended to or projected
that it would be able to take market share from LG over the next
several years by obtaining documents and confidences from former LG
employees,).
(3) It is unclear from the parties' submissions which alleged trade
secrets remain within the scope of the investigation at the time of the
ID's default finding. The parties are to provide a list of the alleged
trade secrets remaining in the investigation at the time of the ID,
with citations to the evidentiary record as to when and where in the
record each trade secret was asserted by LG and not later withdrawn. SK
is not to dispute whether any of the alleged trade secrets that
remained within the scope of the investigation are actually trade
secrets; SK's existing briefing is adequate as to that issue. To the
extent that the parties can provide a joint response to question (3),
they should, and it should be presented in LG's opening brief
explaining that the other parties do not disagree. Such a list may be
appended to the brief without counting against page limitations.
The existing record is adequate as to issues concerning inherent
authority; sanctions under Commission rule 210.33 and Federal Rule of
Civil Procedure 37; and under Micron Technology, Inc. v. Rambus Inc.,
645 F.3d 1311 (Fed Cir. 2011).
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that could result in the exclusion of
the subject articles from entry into the United States, and/or (2)
issue a cease and desist order that could result in the respondent
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
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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 any
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 order 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 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 as to the issues under review. The parties'
opening submissions should not exceed 30 pages, and their reply
submissions should not exceed 25 pages. 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. For the parties, the submissions on
remedy, the public interest, and bonding, shall be separate from their
submissions as to the issues under review, with page limits of 50 pages
for opening submissions and 40 pages for response submissions. In their
initial submissions, Complainants and OUII are requested to submit
proposed remedial orders for the Commission's consideration. In
connection with remedy, the public interest, and bonding, the parties
may present whatever responsive briefing they wish, but the briefing
must include the following:
Limited Exclusion Order
(1) Whether the Commission should issue a limited exclusion order
and how Customs should administer the exclusion order, including how
Customs may identify which imported articles ``embody the
misappropriated trade secrets,'' Compl. ] 158, especially in view of
the fact that the complaint itself references future discovery as to
such issues, id., and the parties have not yet addressed such discovery
in their submissions to the Commission.
(2) The appropriate length for a limited exclusion order, if any.
(3) Whether the statutory public interest factors of 19 U.S.C.
1337(d)(1) should result in a Commission finding that some or all of
the accused articles should not be excluded, or warrant tailoring of
any limited exclusion order.
Cease and Desist Order
(1) Against which respondent(s) a cease and desist order, if any,
should issue.
(2) The appropriate length for one or more cease and desist orders,
if any.
(3) Whether the statutory public interest factors of 19 U.S.C.
1337(f)(1) should result in a Commission finding that a cease and
desist order not issue, or warrant tailoring of any cease and desist
order.
Bond
(1) What the appropriate amount of bond, if any, should be during
the Presidential Review period. See 19 U.S.C. 1337(j)(3).
Initial written submissions and proposed remedial orders must be
filed no later than close of business on Friday, May 1, 2020. Reply
submissions must be filed no later than the close of business on
Tuesday, May 12, 2019. 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-1159) 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,\2\ solely for
cybersecurity purposes. All nonconfidential written submissions will be
available for public inspection on EDIS.
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\2\ All contract personnel will sign appropriate nondisclosure
agreements.
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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: April 17, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-08599 Filed 4-22-20; 8:45 am]
BILLING CODE 7020-02-P