[Federal Register Volume 87, Number 50 (Tuesday, March 15, 2022)]
[Notices]
[Pages 14572-14574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05384]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1210]


Certain Wrapping Material and Methods for Use in Agricultural 
Applications; Notice of Commission Determination To Review in Part a 
Final Initial Determination Finding No Violation of Section 337; 
Schedule for Filing Written Submissions; Extension of Target Date

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part the final initial 
determination (``final ID'') issued by the presiding administrative law 
judge (``ALJ'') on December 10, 2021, finding no violation of section 
337 of the Tariff Act of 1930, as amended. 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. The Commission has also 
determined to extend the target date for the completion of the 
investigation to May 9, 2022.

FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-3427. 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 August 11, 2020, the Commission 
instituted this investigation based on a complaint filed on behalf of 
Tama Group of Israel and Tama USA Inc. of Dubuque, Iowa (together, 
``Tama''). 85 FR 48561-62 (Aug. 11, 2020). The complaint alleged 
violations of section 337 of the Tariff Act of 1930, as amended, 19 
U.S.C. 1337, based upon the importation into the United States, the 
sale for importation, and the sale within the United States after 
importation of certain wrapping material and methods for use in 
agricultural applications by reason of infringement of one or more of 
claims 1, 2, 4-16, 18, 28, 32, 33, and 35-45 of U.S. Patent No. 
6,787,209 (``the '209 patent''). Id. The Commission's notice of 
investigation named as respondents Zhejiang Yajia Cotton Picker Parts 
Co., Ltd. of Zhuji City, China (``Yajia Cotton''); Southern Marketing 
Affiliates, Inc. of Jonesboro, Arkansas (``SMA''); Hai'an Xin Fu Yuan 
of Agricultural, Science, and Technology Co., Ltd. of Nantong, China 
(``XFY''); and Gosun Business Development Co. Ltd. of Grande Prairie, 
Canada (``Gosun''). Id. at 48561. The Office of Unfair Import 
Investigations is not participating in this investigation. Id.
    The Commission previously terminated this investigation with 
respect to Gosun. Order No. 6, unreviewed by Notice (Oct. 5, 2020).
    Based on Tama's motion, the Commission later amended the complaint 
and notice of investigation to add Zhejiang Yajia Packaging Materials 
Co., Ltd. (``Yajia Packaging'') as a respondent. Order No. 8, 
unreviewed by Notice (Oct. 27, 2020); 85 FR 68,916 (Oct. 30, 2020). 
Yajia Cotton and Yajia Packaging are collectively referred to herein as 
``Yajia.'' Yajia, SMA, and XFY are collectively referred to herein as 
``Respondents.''
    On November 16, 2020, XFY was found in default pursuant to 
Commission Rule 210.16 (19 CFR 210.16). Order No. 11, unreviewed by 
Notice (Nov. 30, 2020).
    On December 10, 2021, the ALJ issued the final ID, which found that 
Respondents did not violate section 337. The final ID found (1) that 
Tama no longer asserts claims 15, 16, 18, 28, and 45 of the `209 
patent; (2) the importation or sale requirement of section 337 has been 
satisfied; (3) the Accused Products infringe claims 1, 2, 4-7, and 10-
14 of the '209 patent; (4) Yajia and SMA do not infringe claims 32, 33, 
35-38, and 41-44 of the '209 patent; (5) the technical prong of the 
domestic industry requirement for the '209 patent has been satisfied; 
(6) the '209 patent is not invalid; and (7) the economic prong of the 
domestic industry requirement has not been satisfied. The ALJ's 
Recommended Determination on remedy and bonding (``RD'') recommended 
that should the Commission find a violation, it should issue a limited 
exclusion order directed to certain wrapping material and methods for 
use in agricultural applications imported, sold for importation, and/or 
sold after

[[Page 14573]]

importation by respondents Yajia, SMA, and XFY. The RD further 
recommended that the issuance of cease and desist orders would be 
unnecessary. The RD additionally recommended that the Commission set a 
bond during the period of Presidential review using a price 
differential between the Accused Products and Tama's TamaWrap products. 
Thus, the CALJ recommended that the Commission set a bond in the amount 
of $119 (or 20%) for Tama's Premium product and $23 (or 4%) for Tama's 
Blue Value product. The Commission did not instruct the CALJ to make 
findings concerning the public interest.
    On December 27, 2021, Yajia and SMA filed a joint petition for 
review, and Tama also filed a petition for review. On January 4, 2022, 
Yajia Cotton and SMA filed a joint response to Tama's petition for 
review, and Tama filed a response to Yajia and SMA's joint petition for 
review.
    The Commission received no public interest comments from the public 
in response to the Commission's Federal Register notice seeking comment 
on the public interest. 86 FR 71664-65 (Dec. 17, 2021). Tama, Yajia, 
and SMA did not submit any public interest comments pursuant to 
Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)).
    Having examined the record in this investigation, including the 
final ID, the petitions for review, and the responses thereto, the 
Commission has determined to review the final ID in part. In 
particular, the Commission has determined to review the following:
    (1) The final ID's findings that Yajia and SMA do not infringe 
claims 32, 33, 35-38, and 41-44 directly or indirectly; and
    (2) the final ID's finding that the economic prong of the domestic 
industry requirement has not been satisfied.

The Commission has determined not to review the remainder of the final 
ID.
    The Commission has also determined to extend the target date for 
the completion of the investigation to May 9, 2022.
    The parties are requested to brief their positions with reference 
to the applicable law and the evidentiary record regarding the 
questions provided below:

    (1) Under Commission and judicial precedent, section 337 and its 
legislative history, and any other relevant authority, is a license 
(express or otherwise) between Tama and John Deere & Co. (``Deere'') 
necessary for the Commission to consider Deere's investments in its 
On-Board Module Harvesters, including model numbers 7760, CP690, and 
CS690 (``the Deere Machines''), towards Tama's satisfaction of the 
economic prong of the domestic industry requirement? Or, is it 
sufficient that Deere and Tama collaborated to design a system that 
requires Tama's TamaWrap and Deere's Deere Machines? Is it necessary 
that Tama authorized Deere to use the patented devices and methods?
    (2) What evidence is in the record that shows that Deere was 
authorized to use the '209 patent?
    (3) Under Commission and judicial precedent, section 337 and its 
legislative history, and any other relevant authority, if the 
Commission considers Deere's investments in the categories listed in 
section 337(a)(3)(A)-(C) towards the satisfaction of the economic 
prong of the domestic industry requirement, to what extent and in 
which statutory category(ies) should the Commission consider the 
Deere expenditures? For example, should such expenditures be in 
TamaWrap itself and/or the method of using TamaWrap; should such 
expenditures be related to ensuring TamaWrap is compatible with the 
Deere Machines; should such expenditures have some other connection 
to TamaWrap and/or the '209 patent; or, should all expenditures 
related to the Deere Machines in each relevant statutory category 
contribute towards the satisfaction of the domestic industry 
requirement?
    (4) What evidence is in the record that Deere specifically 
invested in TamaWrap and/or the method of using TamaWrap? For 
example, what activities did Deere undertake to ensure the Deere 
Machines would work well with TamaWrap?
    (5) What part of the Deere Machines are specifically designed to 
interact with TamaWrap and what, if any, of Deere's investments 
asserted by Tama were specifically related to that portion of the 
Deere Machines and/or ensuring that Deere Machines are compatible 
with TamaWrap?
    (6) Does the ``article[ ] protected by the patent'' (19 U.S.C. 
1337(a)(3)) differ for the asserted apparatus claims and method 
claims? For example, are the Deere Machines ``articles protected by 
the patent'' with respect to the method claims while only the 
TamaWrap is an ``article[ ] protected by the patent'' with respect 
to the apparatus claim? If the articles protected by the patent 
differ as between the apparatus and the method claims, please 
provide a chart with supporting citations to the record indicating 
the expenditures for each statutory category for the respective 
apparatus and method claims.
    (7) Can the Commission consider Deere's expenditures related to 
the Deere Machines under an ``article of commerce theory''? See, 
e.g., Certain Video Game Sys. & Wireless Controllers & Components 
Thereof, Inv. No. 337-TA-770, Comm'n Op. at 66-70 (Oct. 28, 2013) 
(Public Version) (``Video Game Sys.'').
    (8) To what extent do Deere's activities related to the Deere 
Machines have a direct relationship to the exploitation of the 
patented technology, and to what extent can the expenditures be 
considered on that basis? See, e.g., Video Game Sys., Comm'n Op. at 
67-68.
    (9) To what extent do the ``realities of the marketplace'' 
require Deere's expenditures in the Deere Machines for Tama to sell 
TamaWrap (or articles practicing the Asserted Patent)? See, e.g., 
Video Game Sys., Comm'n Op. at 8.
    (10) Were the expenditures related to the Deere Machines 
necessary to bringing TamaWrap to the consumer market, and if so, 
should the Commission consider those expenditures, and to what 
extent? See, e.g., Video Game Sys., Comm'n Op. at 69-70; Certain 
Digital Set-Top Boxes & Components Thereof, Inv. No. 337-TA-712, 
Order No. 33 (Jan. 11, 2011), aff'd in part, Notice (July 21, 2011).
    (11) Were the expenditures related to the Deere Machines central 
to the exploitation of TamaWrap, and if so, should the Commission 
consider those expenditures, and to what extent? See, e.g., Certain 
Magnetic Tape Cartridges & Components Thereof, Inv. No. 337-TA-1058, 
Comm'n Op. at 50 (Apr. 9, 2019) (Public Version); Certain Sleep-
Disordered Breathing Treatment Sys. & Components Thereof, Inv. No. 
337-TA-890, Final ID at 147-50 (Sept. 16, 2014) (Public Version), 
unreviewed in relevant part by Notice, (Oct. 16, 2014).
    (12) With citations to record evidence and any relevant 
Commission and/or judicial precedent, including, e.g., Certain In 
Vitro Fertilization Products, Components Thereof, and Products 
Containing the Same, Inv. No. 337-TA-1196, Dissenting Views of 
Commissioners Schmidtlein and Karpel (Oct. 28, 2021), please discuss 
whether Tama's domestic activities as a whole indicate that it is 
more than a ``mere importer.'' Please note that this question is 
different from Question 13.
    (13) With citations to record evidence and any relevant 
Commission and/or judicial precedent, please discuss whether Tama's 
qualifying domestic activities indicate that it is more than a 
``mere importer.''
    (14) Please indicate how Tama's claimed investments in the 
acquisition of Ambraco, components, administrative fees, and 
administrative expenses qualify as investments in ``labor or 
capital'' under section 337(a)(3)(B)? Please allocate those 
investments with respect to the articles protected by the patent and 
to those portions attributable to labor or capital.
    (15) What arguments were presented to the ALJ that the amount of 
Deere's investment were significant or substantial?
    (16) To the extent Tama is not a mere importer and certain 
domestic activities and investments with respect to the asserted 
patent excluded by the final ID (see e.g., certain warehousing, 
inventory, logistics, finance, invoicing, account management, and/or 
promotion, marketing, and sales expenditures) should be credited as 
cognizable domestic industry investments, please discuss whether 
Tama's cognizable domestic industry investments (apart from any 
investments by Deere) are significant or substantial within the 
meaning of section 337(a)(3)(A)-(C), with citation to record 
evidence.
    (17) To the extent investments by Deere are considered by the 
Commission along with the investments excluded by the final ID (see, 
e.g., certain warehousing, inventory, logistics, finance, invoicing, 
account

[[Page 14574]]

management, and/or promotion, marketing, and sales expenditures) 
with respect to satisfaction of the economic prong of the domestic 
industry requirement under section 337(a)(3)(A)-(C), please discuss 
whether domestic industry investments are significant or substantial 
within the meaning of section 337(a)(3)(A)-(C), with citation to 
record evidence.

    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 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).
    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 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 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 RD that issued on 
December 10, 2021.
    Initial written submissions, limited to 80 pages, must be filed no 
later than the close of business on March 23, 2022. Complainants are 
requested to identify the form of the remedy sought and 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. Reply 
submissions, limited to 50 pages, must be filed no later than the close 
of business on March 30, 2022. 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 (Mar. 19, 2020). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-1210'') 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 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 nonconfidential written submissions will be available for public 
inspection on EDIS.
    The Commission vote for this determination took place on March 9, 
2022.
    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).
    While temporary remote operating procedures are in place in 
response to COVID-19, the Office of the Secretary is not able to serve 
parties that have not retained counsel or otherwise provided a point of 
contact for electronic service. Accordingly, pursuant to Commission 
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the 
Commission orders that the Complainant(s) complete service for any 
party/parties without a method of electronic service noted on the 
attached Certificate of Service and shall file proof of service on the 
Electronic Document Information System (EDIS).

    By order of the Commission.

    Issued: March 9, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-05384 Filed 3-14-22; 8:45 am]
BILLING CODE 7020-02-P