[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