[Federal Register Volume 86, Number 72 (Friday, April 16, 2021)]
[Notices]
[Pages 20200-20202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07765]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1175]


Certain Bone Cements and Bone Cement Accessories; Commission 
Determination To Review in Part a Final Initial Determination Finding 
No Violation of Section 337; Schedule for Filing Written Submissions on 
the Issues Under Review and on Remedy, 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 a final 
initial determination (``FID'') of the presiding administrative law 
judge (``ALJ'') finding no violation of section 337 of the Tariff Act 
of 1930, as amended, in the above-captioned investigation. 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: 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, telephone 202-205-1810.

SUPPLEMENTARY INFORMATION: On September 23, 2019, the Commission 
instituted this investigation based on a complaint filed on behalf of 
Zimmer, Inc. and Zimmer US, Inc. both of Warsaw, Indiana (collectively, 
``Complainants''). 84 FR 49764 (Sept. 23, 2019). The complaint alleges 
violations of section 337 of the Tariff Act of 1930, as amended, 19 
U.S.C. 1337 (``section 337''), based on the importation into the United 
States, the sale for importation, and the sale within the United States 
after importation of certain bone cements and bone cement accessories 
by reason of the misappropriation of trade secrets, false advertising, 
and tortious interference, the threat or effect of which is to destroy 
or substantially injure an industry in the United States. The complaint 
also alleges the existence of a domestic industry. The Commission's 
notice of investigation names the following as respondents: Heraeus 
Medical GmbH of Wehrheim, Germany and Heraeus Medical LLC of Yardley, 
Pennsylvania (collectively, ``Respondents''). Id. The Office of Unfair 
Import Investigations (``OUII'') is named as a party in this 
investigation. Id.
    On February 11, 2021, the ALJ issued the FID, finding no violation 
of section 337. More particularly, the FID finds, inter alia, that: (1) 
The Commission has subject matter and personal jurisdiction; (2) 
Respondents sold for importation into the United States, imported, or 
sold after importation accused bone cements and bone cement 
accessories; (3) a domestic industry exists with respect to 
Complainants' accessory products under section 337(a)(1)(A)(i) (19 
U.S.C. 1337(a)(1)(A)(i)); (4) Complainants own the asserted trade 
secrets; (5) trade secrets (``TS'') 10, 15, and 28 are protectable, but 
TS 11 is not protectable; (6) Respondents did not misappropriate any 
asserted TS; (6) Respondents did not engage in false advertising; (7) 
Respondents did not tortiously interference with Complainants' 
contracts or prospective business relationships; and (6) Complainants 
failed to show a substantial injury or threat of injury to their 
domestic industry.
    The FID includes the ALJ's recommended determination (``RD''), 
which recommends that, if the Commission finds a violation of section 
337, the Commission should issue a limited exclusion order and a cease 
and desist order directed to Respondents.

[[Page 20201]]

The RD further recommends imposing a bond of five and a half (5.5) 
percent during the period of Presidential review.
    On February 23, 2021, Complainants filed a petition for review that 
seeks review of most of the FID's findings. On March 3, 2021, 
Respondents and OUII filed responses to Complainants' petition.
    On March 15, 2021, Respondents filed a submission on the public 
interest pursuant to Commission Rule 210.50(a)(4) (19 CFR 
210.50(a)(4)). Complainants and OUII did not file a statement on the 
public interest. The Commission received no filings in response to its 
Federal Register notice calling for public interest comments. See 86 FR 
12029.
    Having examined the record in this investigation, including the 
FID, the petitions for review, and the responses thereto, the 
Commission has determined to review the FID in part. In particular, the 
Commission has determined to review the following:
    (1) The FID's findings and conclusions as to the alleged 
misappropriation of the asserted trade secrets, including the finding 
that Respondents independently developed their own data compilation;
    (2) The FID's findings and conclusions as to Respondents' alleged 
tortious interference with Complainants' prospective business 
advantages; and
    (3) The FID's findings on domestic industry and injury.
The Commission has determined not to review the remainder of the FID.
    In connection with its review, the Commission requests that the 
parties brief their positions regarding the following questions with 
reference to the applicable law and the evidentiary record:
    (A) When evaluating the misappropriation of a trade secret, 
identify and discuss the proper legal standard for wrongful disclosure 
or use of a trade secret that is a compilation. Please consider whether 
any particular amount of disclosure or use is required to support a 
finding of misappropriation, i.e., de minimis, substantial, or the 
entirety of the trade secret compilation. Discuss whether there are any 
differences in the application of the legal standard for disclosure or 
use if a trade secret compilation includes publicly available 
information.
    (B) Given the legal standard identified in response to (A), please 
analyze the alleged disclosure and use of TS 10, 15, and 28.
    (C) Please discuss and provide a timeline detailing the background 
and development of Heraeus Medical LLC from 2017 through 2018, 
including the dates that relevant employees were hired, the relevant 
employees' positions, the dates of alleged disclosures and/or use of TS 
10, 15, and 28, and the dates and relevant facts regarding Respondents' 
interactions with third parties.
    (D) What criteria should the Commission apply to determine whether 
activities related to meeting FDA requirements constitute activities of 
a ``mere importer''? For example, should one criterion be that the 
activities are required to be performed in the United States or that 
the activities differ from those that a wholly domestic company would 
perform? Please apply the appropriate criteria to the facts of this 
investigation. Are any of Complainants' FDA-related activities 
different from what a wholly domestic company would need to undertake? 
Which, if any, of a Complainants' FDA activities could be conducted 
abroad?
    In connection with the final disposition of this investigation, the 
statute authorizes issuance of: (1) An exclusion order that could 
result in the exclusion of the subject articles from entry into the 
United States, and/or (2) one or more 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 are 
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).
    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 
and/or cease and desist orders 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 action. 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 on the questions 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 
written submissions should include views on the ALJ's RD on remedy and 
bonding.
    In their initial written submission, Complainants are also 
requested to identify the form of the remedy sought, and Complainants 
and OUII are requested to submit proposed remedial orders for the 
Commission's consideration. Complainants are also requested to state 
the HTSUS subheadings under which the accused articles are imported, 
and to supply identification information for all known importers of the 
accused products.
    Written submissions, including proposed remedial orders must be 
filed no later than the close of business on April 30, 2021. Reply 
submissions must be filed no later than the close of business on May 7, 
2021. 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

[[Page 20202]]

(March 19, 2020). Submissions should refer to the investigation number 
(``Inv. No. 337-TA-1175'') 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, solely for cybersecurity 
purposes. All contract personnel will sign appropriate nondisclosure 
agreements. All non-confidential written submissions will be available 
for public inspection at the Office of the Secretary and on EDIS.
    The Commission vote for this determination took place on April 12, 
2021.
    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 12, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-07765 Filed 4-15-21; 8:45 am]
BILLING CODE 7020-02-P