[Federal Register Volume 85, Number 106 (Tuesday, June 2, 2020)]
[Notices]
[Pages 33705-33707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11761]


=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1169]


Certain Fish-Handling Pliers and Packaging Thereof; Commission 
Determination To Review-in-Part an Initial Determination Finding a 
Violation of Section 337; 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.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (``Commission'') has determined to review-in-part an initial 
determination (``ID'') (Order No. 14) of the presiding administrative 
law judge (``ALJ''). The Commission requests briefing from the parties 
on certain issues under review, as indicated in this notice. The 
Commission also requests briefing from the parties, interested 
government agencies, and interested persons on the issues of remedy, 
the public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Robert Needham, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-2392. 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. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://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 this investigation 
on July 29, 2020, based on a complaint filed by complainant United 
Plastic Molders, Inc. of Jackson, Mississippi (``UPM''). 84 FR 36620-21 
(July 29, 2020). 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 into the United States, the sale for importation, or 
the sale within the United States after importation of certain fish-
handling pliers and packaging thereof by reason of infringement of 
claims 1-11 of U.S. Patent No. 6,256,923 (``the '923 patent'') and U.S. 
Trademark Registration Nos. 4,980,923 (``the '923 mark'') and 5,435,944 
(``the '944 mark''). Id. The complaint further alleges that a domestic 
industry exists. Id. The Commission's notice of investigation named as 
respondents Yixing Five Union Industry & Trade Co., Ltd. of Yixing 
City, China (``Five Union''); NOEBY Fishing Tackle Co., Ltd. of Weihai, 
China (``NOEBY''); Weihai iLure Fishing Tackle Co., Ltd. of Weihai, 
China (``iLure''); SamsFX of Yangzhou City, China (``SamsFX''); and 
Weihai Lotus Outdoor Co., Ltd. of Weihai, China (``Lotus'') 
(collectively, ``Respondents''). Id. The Office of Unfair Import 
Investigations (``OUII'') is participating in the investigation. Id.
    All five Respondents defaulted. On December 18, 2019, the 
Commission found NOEBY, iLure, Weihai Lotus, and Five Union in default 
for failing to respond to the complaint and notice of investigation. 
Order No. 11 (Nov. 19, 2019), not reviewed Notice (Dec. 18, 2019). Also 
on December 18, 2019, the Commission found SamsFX in default for 
failing to respond to the complaint

[[Page 33706]]

and notice of investigation. Order No. 12 (Nov. 25, 2019), not reviewed 
Notice (Dec. 18, 2019).
    On December 5, 2019, UPM moved for a summary determination of 
violation based on infringement of the '923 patent, the '923 mark, and 
the '944 mark and for a recommendation for the issuance of a general 
exclusion order (``GEO''). In its motion, UPM withdrew its infringement 
allegations with respect to claims 2-6 and 8-11 of the '923 patent, but 
continued to assert claims 1 and 7 of the '923 patent. On January 3, 
2020, OUII filed a response that largely supported UPM's motion.
    On April 10, 2020, the ALJ issued the subject ID, Order No. 14, 
granting-in-part UPM's motion. Specifically, the ALJ issued a summary 
of determination of violation finding that SamsFX, Lotus, and NOEBY 
violated section 337 with respect to claims 1 and 7 of the '923 patent, 
as well as the '923 and '944 marks; that iLure violated section 337 
with respect to claims 1 and 7 of the '923 patent; and that Five Union 
violated section 337 with respect to the '923 mark. The ALJ also found 
that UPM failed to show that iLure violated section 337 with respect to 
the '923 and '944 marks, as the only evidence of importation predates 
the registration of those marks. No petitions for review of the ID were 
filed.
    The Commission has determined to review the subject ID in part. 
Specifically, the Commission has determined to review the ID's finding 
of violation with respect to the '923 patent; the ID's findings of 
trademark infringement; the ID's finding that UPM satisfied the 
economic prong of the domestic industry requirement; and the ID's 
finding of violation with respect to Lotus and Five Union. The 
Commission has not determined to review any other findings in the ID.
    In connection with its review, the Commission is interested in 
briefing on the following issues:

    1. In view of UPM's acknowledgment that the '923 patent expired 
on February 25, 2020 (Complaint ] 23), how does that expiration 
impact the findings in the ID? Please specifically address any 
impact on the ID's findings on the economic prong of the domestic 
industry requirement.
    2. Please identify all evidence in the record that demonstrates 
that Lotus and Five Union are involved in ``the importation into the 
United States, the sale for importation, or the sale within the 
United States after importation by the owner, importer, or 
consignee'' of infringing articles. 19 U.S.C. 1337(a)(1)(C). Please 
explain how that evidence constitutes ``substantial, reliable, and 
probative evidence.''

19 U.S.C. 1337(g)(2)(B).

The parties are invited to brief only the discrete issues described 
above, with reference to the applicable law and evidentiary record. 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 (1) an 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 respondents 
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 (December 
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 a 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 Commission requests that the parties to 
the investigation 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. Such initial submissions should include views on the 
recommended determination by the ALJ on remedy and bonding.
    In their initial submissions, Complainant and OUII are also 
requested to identify the remedy sought and to submit proposed remedial 
orders for the Commission's consideration. Complainant is also 
requested to state 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 June 10, 2020. Reply submissions 
must be filed no later than the close of business on June 17, 2020. 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-1169) 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. 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. A 
redacted non-confidential version of the document must also be filed 
simultaneously with any confidential filing. All information, including 
confidential business information and documents for which confidential 
treatment is properly sought, submitted to the Commission for

[[Page 33707]]

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 these determinations took place on May 27, 
2020.
    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: May 27, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-11761 Filed 6-1-20; 8:45 am]
BILLING CODE 7020-02-P