[Federal Register Volume 85, Number 130 (Tuesday, July 7, 2020)]
[Notices]
[Pages 40683-40685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14500]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1155]


Certain Luxury Vinyl Tile and Components Thereof; Commission 
Determination To Review in Part and, on Review, To Affirm an Initial 
Determination Granting Summary Determination of Violation by Defaulting 
Respondents; Request for Written Submissions 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 (``Commission'') has determined to review in part and, on 
review, to affirm an initial determination (``ID'') of the presiding 
administrative law judge (``ALJ'') granting summary determination of 
violation of section 337 by certain defaulting respondents. The 
Commission requests written submissions from the parties, interested 
government agencies, and interested persons on the issues of remedy, 
the public interest, and bonding, under the schedule set forth below.

FOR FURTHER INFORMATION CONTACT: Lynde Herzbach, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3228. 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. 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: On May 16, 2019, the Commission instituted 
this investigation based on a complaint filed by Mohawk Industries, 
Inc. of Calhoun, Georgia; Flooring Industries Ltd. Sarl of Bertrange, 
Luxembourg; and IVC US Inc. of Dalton, Georgia (collectively, 
``Complainants''). 84 FR 22161 (May 16, 2019). The complaint, as 
supplemented, alleges a violation of section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337 (``section 337'') in the importation 
into the United States, the sale for importation, or the sale within 
the United States after importation of certain luxury vinyl tiles by 
reason of infringement of certain claims of U.S. Patent Nos. 9,200,460 
(``the '460 patent''); 10,208,490 (``the '490 patent''); and 10,233,655 
(``the '655 patent'') (collectively, ``the Asserted Patents''). Id. The 
complaint further alleges that a domestic industry exists. Id. The 
Commission's notice of investigation names forty-five respondents, 
including: ABK Trading Corp. of Katy, Texas (``ABK''); Aurora Flooring 
LLC of Kennesaw, Georgia (``Aurora''); Changzhou Runchang Wood Co., 
Ltd. of Jiangsu, China (``Runchang''); Go-Higher Trading (Jiangsu) Co., 
Ltd. of Jiangsu, China (``Go-Higher''); Jiangsu Divine Building 
Technology Development Co., Ltd. Jiangsu, China (``Divine''); Jiangsu 
Lejia Plastic Co. Ltd. of Jiangsu, China (``Lejia''); JiangSu Licheer 
Wood Co., Ltd. of Jiangsu, China (``Licheer''); Maxwell Flooring 
Distribution LLC of Houston, Texas (``Maxwell Flooring''); Mr. Hardwood 
Inc. of Acworth, Georgia (``Mr. Hardwood''); and Sam Houston Hardwood 
Inc. of Houston, Texas (``Sam Houston'') (collectively, ``Defaulting 
Respondents''). Id. The Office of Unfair Import Investigations 
(``OUII'') is also participating in the investigation. Id.
    The Commission previously terminated the investigation as to 
thirty-

[[Page 40684]]

five respondents based on settlement, consent order, or partial 
withdrawal of the complaint. See Order No. 14 (Sept. 26, 2019), not 
rev'd, Notice (Oct. 17, 2019); Order Nos. 15-21 (Sept. 27, 2019 for 
all), not rev'd, Notice (Oct. 17, 2019); Order Nos. 23-25 (Oct. 2, 2019 
for all), not rev'd, Notice (Oct. 23, 2019); Order No. 27 (Oct. 9, 
2019), not rev'd, Notice (Nov. 6, 2019); Order No. 26 (Oct. 9, 2019)), 
not rev'd, Notice (Nov. 8, 2019); Order No. 30 (Oct. 25, 2019), not 
rev'd, Notice (Nov. 21, 2019); Order No. 34 (Nov. 7, 2019), not rev'd, 
Notice (Dec. 11, 2019); Order No. 35 (Jan. 24, 2020), not rev'd, Notice 
(Feb. 25, 2020).
    On November 21, 2019, the Commission found respondent Go-Higher in 
default. See Order No. 31 (Oct. 25, 2019), not rev'd, Notice (Nov. 21, 
2019). On November 22, 2019, the Commission found an additional eight 
respondents in default: ABK; Aurora; Divine; Lejia; Licheer; Maxwell 
Flooring; Mr. Hardwood; and Sam Houston. See Order No. 32 (Oct. 30, 
2019), not rev'd, Notice (Nov. 22, 2019). On November 25, 2019, the 
Commission found respondent Runchang in default. See Order No. 33 (Oct. 
30, 2019), not rev'd, Notice (Nov. 25, 2019).
    On January 15, 2020, Complainants filed a motion for summary 
determination of domestic industry and violation of section 337 by the 
Defaulting Respondents. Complainants filed supplements to their summary 
determination motion on January 23, 2020, February 11, 2020, and 
February 19, 2020.
    On February 12, 2020, OUII filed a response to Complainants' 
motion. On May 14, 2020, OUII filed a supplemental response.
    On May 15, 2020, the ALJ issued the subject ID (Order No. 36) 
granting the motion for summary determination and finding a violation 
of section 337 by the Defaulting Respondents. The ALJ recommended that 
the Commission issue a GEO and CDOs against the five domestic 
respondents: ABK, Aurora, Maxwell Flooring, Mr. Hardwood, and Sam 
Houston. The ALJ also recommended setting a bond of $0.08 per square 
foot of luxury vinyl tile product and components thereof imported 
during the period of Presidential review. Id. No party petitioned for 
review of the subject ID.
    Having reviewed the record of the investigation, the Commission has 
determined to review the subject ID in part, and on review, to affirm 
the ID's finding of violation. Specifically, the Commission has 
determined to review and, on review, to take no position on the ID's 
findings regarding the economic prong under subsection 337(a)(3)(B) 
with respect to the '460 patent. The Commission has also determined to 
review the ID's findings regarding a domestic industry ``in the process 
of being established'' with respect to the '490 and '655 patents and 
affirms those findings but with the following clarifications: The ID 
addresses the issue of domestic industry for the '490 and '655 patents 
under the theory of whether the industry is ``in the process of being 
established'' since that is the theory advanced by Complainants. In 
affirming the ID's findings, the Commission does not intend to imply 
that the investments already made with respect to the '490 and '655 
patents are not substantial or could not be used to show the existence 
of a domestic industry under section 337(a)(3). Further, although the 
``IVC Foamed Rigid LVT'' product asserted by the Complainants is not 
yet commercially manufactured, under Commission precedent there is no 
requirement that there be a commercial domestic industry product in 
order to establish an existing domestic industry. See Certain 
Thermoplastic-Encapsulated Electric Motors, Components Thereof, and 
Products and Vehicles Containing Same II, Inv. No. 337-TA-1073, Comm'n 
Op. at 9 (Aug. 12, 2019) (public version). The Commission has also 
determined to review the ID's findings with respect to the two products 
from non-parties, the Quickstyle and Uniflor Aqua products.
    The Commission has determined not to review the remainder of the 
ID, including the findings that Complainants have satisfied the 
domestic industry requirement under subsection 337(a)(3)(A) with 
respect to the '460 patent. Accordingly, the Commission affirms the 
ID's finding of a violation of section 337 by the Defaulting 
Respondents' importation of luxury vinyl tiles and components thereof 
that infringe one or more of claims 7-8, 13, 15-17, 20-23, and 30 of 
the '460 patent, claims 1-6, 8, 10-11, 13-16, and 18 of the '490 
patent, and claims 1-4, 6-16, 18, and 20-26 of the '655 patent.
    In connection with the final disposition of this investigation, the 
statute authorizes issuance of, inter alia, (1) an exclusion 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 (Dec. 1994). In addition, if a party seeks issuance of any 
cease and desist orders, the written submissions should address that 
request in the context of recent Commission opinions, including those 
in Certain Arrowheads with Deploying Blades and Components Thereof and 
Packaging Therefor, Inv. No. 337-TA-977, Comm'n Op. (Apr. 28, 2017) and 
Certain Electric Skin Care Devices, Brushes and Chargers Therefor, and 
Kits Containing the Same, Inv. No. 337-TA-959, Comm'n Op. (Feb. 13, 
2017). Specifically, if Complainants seek a cease and desist order 
against a respondent, the written submissions should respond to the 
following requests:
    1. Please identify with citations to the record any information 
regarding commercially significant inventory in the United States as to 
each respondent against whom a cease and desist order is sought. If 
Complainants also rely on other significant domestic operations that 
could undercut the remedy provided by an exclusion order, please 
identify with citations to the record such information as to each 
respondent against whom a cease and desist order is sought.
    2. In relation to the infringing products, please identify any 
information in the record, including allegations in the pleadings, that 
addresses the existence of any domestic inventory, any domestic 
operations, or any sales-related activity directed at the United States 
for each respondent against whom a cease and desist order is sought.
    3. Please discuss any other basis upon which the Commission could 
enter a cease and desist order.
    4. To the extent Complainants seek a cease and desist order against 
defaulting respondent Runchang, please address whether the requirements 
of section 337(g)(1)(A)-(E) are satisfied with respect to Runchang.
    The statute requires the Commission to consider the effects of that 
remedy upon the public interest. The public interest factors the 
Commission will consider include the effect that an exclusion order 
would have on: (1) The public health and welfare, (2) competitive 
conditions in the U.S.

[[Page 40685]]

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: 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 submissions should address the recommended 
determination by the ALJ on remedy and bonding.
    In their initial submission, Complainants are also requested to 
identify the remedy sought and Complainants and OUII are requested to 
submit proposed remedial orders for the Commission's consideration. 
Complainants are further requested to state the dates that the Asserted 
Patents expire, 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 July 15, 2020. Reply submissions 
must be filed no later than the close of business on July 22, 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-1155) 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 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 this determination took place on June 30, 
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: June 30, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-14500 Filed 7-6-20; 8:45 am]
BILLING CODE 7020-02-P