[Federal Register Volume 88, Number 95 (Wednesday, May 17, 2023)]
[Notices]
[Pages 31522-31524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10476]


-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1292]


Certain Replacement Automotive Lamps II; Notice of Commission 
Determination To Review a Final Initial Determination Finding a 
Violation of Section 337; Schedule for Filing Written Submissions on 
Remedy, the Public Interest, and Bonding; Extension of the Target Date

AGENCY: International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade

[[Page 31523]]

Commission has determined to review a final initial determination 
(``FID'') issued by the presiding Chief Administrative Law Judge 
(``CALJ'') finding a violation of section 337 of the Tariff Act of 
1930. The Commission requests briefing from the parties on the issues 
under review and from the parties, interested government agencies, and 
interested persons on remedy, the public interest, and bonding based on 
the schedule set forth below. The Commission has also determined to 
extend the target date for the completion of the above-captioned 
investigation to September 26, 2023.

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 January 24, 2022, the Commission 
instituted this investigation under section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337 (``section 337''), based on a 
complaint filed by Hyundai Motor Company of Seoul, Republic of Korea 
and Hyundai Motor America, Inc. of Fountain Valley, CA (collectively, 
``Hyundai''). See 87 FR 3583-84 (Jan. 24, 2022). The complaint alleges 
a violation of section 337 based upon the importation into the United 
States, sale for importation, or sale after importation into the United 
States of certain replacement automotive lamps by reason of 
infringement of certain claims of U.S. Design Patent Nos. D617,478; 
D618,835; D618,836; D631,583; D637,319; D640,812; D655,835; D664,690; 
D709,217; D736,436; D738,003; D739,057; D739,574; D740,980; D759,864; 
D759,865; D771,292; D780,351; D818,163; D829,947; and D834,225 
(collectively, ``Asserted Patents''). Id. The complaint further alleges 
that a domestic industry exists. Id. The notice of investigation names 
four respondents: (1) TYC Brother Industrial Co., Ltd. of Tainan, 
Taiwan; (2) Genera Corporation (dba. TYC Genera) of Brea, California; 
(3) LKQ Corporation of Chicago, Illinois; and (4) Keystone Automotive 
Industries, Inc. of Exeter, Pennsylvania (collectively, 
``Respondents''). Id. The Office of Unfair Import Investigations is not 
named as a party.
    On February 7, 2022, the CALJ ordered an evidentiary hearing for 
both Inv. Nos. 337-TA-1291 and 337-TA-1292 on the economic prong of the 
domestic industry requirement pursuant to the Commission's pilot 
program for interim initial determinations (``IID''). See Order No. 7 
(Feb. 7, 2022). The combined evidentiary hearing was held on April 20, 
2022. On July 1, 2022, the CALJ issued an IID finding that Hyundai has 
satisfied the economic prong of the domestic industry requirement with 
respect to all of the asserted design patents. On August 24, 2022, the 
Commission determined to review the IID. See Comm'n Notice (Aug. 24, 
2022).
    On January 24, 2023, the CALJ issued the subject FID finding a 
violation of section 337 by Respondents based on infringement of each 
of the Asserted Patents. The FID also finds that no Asserted Patent is 
invalid as anticipated or obvious. The FID further finds that Hyundai 
has satisfied the technical prong as to certain representative domestic 
industry products. Concerning the economic prong of the domestic 
industry requirement, the FID reduces Hyundai's alleged investments due 
to Hyundai's failure to establish that certain of its alleged domestic 
industry products are representative of other alleged domestic industry 
products. The FID then finds that the economic prong of the domestic 
industry requirement is satisfied for all of the Asserted Patents based 
on the reduced investments. The CALJ also simultaneously issued a 
recommended determination on remedy and bonding (``RD'') recommending 
that, if the Commission finds a violation, it should issue a limited 
exclusion order but not issue any cease and desist order against any of 
the Respondents.
    On February 6, 2023, Respondents filed a petition for review 
challenging the FID's findings on the economic prong of the domestic 
industry requirement, infringement, and validity. Also on February 6, 
2023, Hyundai filed a petition for review challenging the RD's 
recommendations and contingently petitioning regarding the FID's 
findings concerning non-satisfaction of the technical prong of the 
domestic industry requirement for certain non-representative products. 
On February 14, 2023, Respondents and Hyundai filed responses to each 
other's petitions.
    Having examined the record of this investigation, including the 
CALJ's FID, the petitions for review, and the responses thereto, the 
Commission has determined to review the FID in its entirety. The 
Commission has also determined to extend the target date for the 
completion of the investigation until September 26, 2023.
    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, the existing 
evidentiary record, and the parties' submissions during the 
investigation.
    1. Please identify, with citations to the record prior to the FID, 
where Hyundai satisfied its burden of proof to establish infringement 
of each asserted patent by applying the ordinary observer test. As a 
part of your discussion, please discuss:
    a. the impact, if any, of the FID's statement that ``rejecting Mr. 
Schiavone's testimony would not change [the] determination regarding 
infringement.'' FID at 25, n.10.
    b. what evidence and argument beyond side-by-side images of the 
patented designs and accused products, if anything, is needed to 
satisfy the burden of proof, and whether Hyundai provided that proof, 
in this investigation. For example, was Hyundai required to provide a 
written explanation in its prehearing and/or post hearing briefs 
discussing how the accused products and each asserted patent are 
``substantially the same'' from the perspective of the ordinary 
observer?
    2. Please identify, with citation to the record prior to the FID, 
where Hyundai satisfied its burden of proof to establish the technical 
prong of the domestic industry requirement for each asserted patent. As 
part of your discussion, please discuss what evidence and argument 
beyond side-by-side images of the patented designs and asserted 
domestic industry products, if anything, is needed to satisfy the 
burden of proof, and whether Hyundai provided that proof, in this 
investigation. For example, was Hyundai required to provide a written 
explanation in its prehearing and/or post hearing briefs discussing how 
the asserted domestic industry products and each asserted patent are 
``substantially the same'' from the perspective of the ordinary 
observer?
    3. Please discuss whether Hyundai satisfied its burden of proof to 
establish that it has satisfied the economic prong of the domestic 
industry requirement through significant investments in plant and 
equipment based on the revised patent-by-patent investments to account

[[Page 31524]]

for the non-representative products. Please also identify, with 
citations to the record prior to the FID, where Hyundai satisfied its 
burden of proof as to the significance of the revised investments for 
each patent.
    4. Please address whether the FID, in finding infringement or 
satisfaction of the technical prong as to the asserted design patents 
despite complainants' failure to provide a written explanation 
regarding similarity between the accused products and asserted design 
from the standpoint of the ordinary observer, is consistent with 
relevant legal authority. Please specifically address whether the FID, 
by providing such a written explanation in the first instance, presents 
issues under the Administrative Procedure Act.
    The parties are invited to brief only the discrete issues requested 
above. The parties are not to brief other issues on review, 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).
    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 CALJ on 
remedy and bonding.
    In its initial submission, Complainant is also requested to 
identify the remedy sought and to submit proposed remedial orders for 
the Commission's consideration. Complainant is further requested to 
state the dates that the Asserted Patents expire, 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 May 25, 2023. Reply submissions must be filed no 
later than the close of business on June 1, 2023. No further 
submissions on these issues will be permitted unless otherwise ordered 
by the Commission. 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) are currently 
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the 
investigation number (Inv. No. 337-TA-1292) 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. Any non-
party wishing to submit comments containing confidential information 
must serve those comments on the parties to the investigation pursuant 
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed with the 
Commission and served on any parties to the investigation within two 
business days of 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 May 11, 
2023.
    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: May 11, 2023.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2023-10476 Filed 5-16-23; 8:45 am]
BILLING CODE 7020-02-P