[Federal Register Volume 86, Number 149 (Friday, August 6, 2021)]
[Notices]
[Pages 43270-43272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16792]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
Certain Balanced Armature Devices, Products Containing Same, and
Components Thereof
[Investigation No. 337-TA-1186]
Notice of a Commission Determination To Review in Part a Summary
Determination Finding a Violation of Section 337; Request for 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 has determined to review in part a summary determination
(``ID'') (Order No. 50) of the presiding administrative law judge
(``ALJ''), finding a violation of section 337. The Commission requests
written submissions from the parties on the issues under review and
submissions from the parties, interested government agencies, and other
interested persons on the issues of remedy, the public interest, and
bonding, under the schedule set forth below.
FOR FURTHER INFORMATION CONTACT: Amanda Pitcher Fisherow, Esq., Office
of the General Counsel, U.S. International Trade Commission, 500 E
Street SW, Washington, DC 20436, telephone (202) 205-2737. 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 November 29, 2019, the Commission
instituted this investigation based on a complaint filed by Knowles
Corporation and Knowles Electronics, LLC of Itasca, Illinois, and
Knowles Electronics (Suzhou) Co., Ltd. of Suzhou, China (collectively,
``Knowles''). 84 FR 65840 (Nov. 29, 2019). The complaint, as
supplemented, alleged violations of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, due to the importation into the
United States, sale for importation, or sale in the United States after
importation of certain balanced armature devices, products containing
same, and components thereof by reason of misappropriation of trade
secrets, the threat or effect of which is to destroy or substantially
injure a domestic industry. Id. The notice of investigation named
twelve (12) respondents, including Shenzhen Bellsing Acoustic
Technology Co. Ltd. of Shenzhen, China, Suzhou Bellsing Acoustic
Technology Co. Ltd. of Suzhou, China, Dongguan Bellsing Precision
Device Co., Ltd. of Dongguan, China, and Bellsing Corporation of Lisle,
Illinois (collectively, ``Bellsing''); Liang Li (a/k/a Ryan Li) of
Suzhou City, China (``Mr. Li''); Dongguan Xinyao Electronics Industrial
Co., Ltd. of Dongguan, China (``Xinyao''); Soundlink Co., Ltd. of
Suzhou, China (``Soundlink''); Magnatone Hearing Aid Corporation d/b/a
Persona Medical and lnEarz Audio of Casselberry, Florida (``Persona'');
Jerry Harvey Audio LLC of Orlando, Florida (``Harvey''); Magic
Dynamics, LLC d/b/a MagicEar of Clearwater, Florida (``MagicEar'');
Campfire Audio, LLC of Portland, Oregon (``Campfire''); and Clear Tune
Monitors, Inc. of Orlando, Florida (``Clear Tune''). Id. The Office of
Unfair Import Investigations (``OUII'') is also a party in this
investigation. Id.
Xinyao, Soundlink, MagicEar, CampFire, Persona, Clear Tune, and
Harvey were all terminated from the investigation based on the issuance
of consent orders. See Order Nos. 37-40, unreviewed by Comm'n Notice
(Nov. 23, 2020); Order Nos. 34-35, unreviewed by Comm'n Notice (Nov.
19, 2020); and Order No. 28, unreviewed by Comm'n Notice (Sept. 20,
2020).
On June 1, 2021, the ALJ issued the subject ID. On June 11, 2021,
Bellsing and Mr. Li filed a joint petition for review. On June 21,
2021, OUII and Knowles filed responses.
Having reviewed the record of the investigation, the ID, and the
parties' submissions to the ALJ and the Commission, the Commission has
determined to review the ID in part. Specifically, the Commission has
determined to review (1) whether Bellsing can participate in briefing
on remedy and bonding before the ALJ (ID at 4) and in briefing on
remedy, the public interest, and bonding before the Commission; (2)
importation; (3) use by Mr. Li of Representative Trade Secret Nos.
(``RTS'') 1-10 (ID at 35-36, 41-42, 49, 56-57, 61, 72-73, and 84-85);
(4) all findings related to RTS No. 6; and (5) domestic industry. The
Commission also reviews the issues raised in the
[[Page 43271]]
parties' arguments relating to due process, comity, and collateral
estoppel.
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. The response to each question should include
citations to the record and identify when the issue/evidence was
previously raised before the ALJ.
(1) Should briefing on remedy, bonding, and the public interest be
considered from a defaulting party (assuming that the briefing
presented by the defaulting party is not related to issues concerning a
finding of violation)? Are there any policy considerations that the
Commission should take into account?
(2) Did Mr. Li waive the issue of whether the importation
requirement has been met by Mr. Li? When was the issue first raised?
(3) Please discuss whether the importation requirement has been met
with respect to Mr. Li. Can Bellsing's actions be imputed to Mr. Li,
and if so, under what theory? Please address the record evidence and
applicable case law.
(4) Has Mr. Li used or disclosed each of the RTS Nos. 1-10? Can
Bellsing's actions be imputed to Mr. Li, and if so, under what theory?
Please address the record evidence and applicable case law.
The parties are invited to brief only the discrete issues requested
above (in their briefs, the parties should also address remedy,
bonding, and the public interest, as requested below). The parties are
not to brief other issues, which are adequately presented in the
parties' existing filings.
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 particular, the written submissions regarding
cease and desist orders should address the request for a cease and
desist order in the context of recent Commission opinions. The
Commission asks that any submissions on remedy address the following:
(1) General exclusion order questions:
(a) Can the Commission issue a general exclusion order covering
downstream products of non-respondents that incorporate articles found
to be in violation of section 337? If so, under what circumstances can
downstream products be covered by a GEO?
(b) Should the Commission consider whether non-respondents are
likely to circumvent the GEO in determining whether to cover downstream
products in its order?
(c) Should the Commission consider the approach and factors set
forth in Certain Erasable Programmable Read Only Memories (EPROMs),
Inv. No. 337-TA-276, Comm'n Op. (May 1989), aff'd sub nom., Hyundai
Elec. Indus. Co. v. U.S. Int'l Trade Comm'n, 899 F.2d 1204 (Fed. Cir.
1990)? Please discuss the relevant evidence in the record of this
investigation and how that evidence supports the approach and factors
that the Commission should use. Please also discuss the relevant
statutory provisions of Section 337 and case law, including Kyocera
Wireless Corp. v. Int'l Trade Comm'n, 545 F.3d 1340, 1357-58 (Fed. Cir.
2008).
(2) In relation to the accused 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 and
whether the inventories, business operations, or sales activities are
significant.
(3) Discuss any instances where the Commission has issued a cease
and desist order to a respondent in his individual capacity and/or an
individual respondent acting on behalf of a company? In what
circumstance should the Commission issue a cease and desist order
directed to an individual?
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
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 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 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
submissions should address the recommended determination by the ALJ on
remedy and bonding.
In their initial submissions, 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 provide 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 August 16, 2021. Reply submissions must be filed no later than the
close of business on August 23, 2021. Opening submissions are limited
to 50 pages. Reply submissions are limited to 30 pages. No further
submissions on any of 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)
[[Page 43272]]
are currently waived. 85 FR 15798 (March 19, 2020). Submissions should
refer to the investigation number (Inv. No. 337-TA-1186) 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 by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). 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 non-confidential written submissions will be available for public
inspection on EDIS.
The Commission vote for this determination took place on August 2,
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: August 2, 2021.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2021-16792 Filed 8-5-21; 8:45 am]
BILLING CODE 7020-02-P