[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