[Federal Register Volume 88, Number 95 (Wednesday, May 17, 2023)]
[Notices]
[Pages 31520-31522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10477]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1291]


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

AGENCY: 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 a final initial 
determination (``Final ID'') issued by the presiding administrative law 
judge (``ALJ'') 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: Robert Needham, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-5468. Copies of non-
confidential documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket (EDIS) at http://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 (http://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 on behalf of complainants Kia Corporation of Seoul, 
Korea and Kia America, Inc. of Irvine, California (collectively, 
``Kia''). 87 FR 3584-85 (Jan. 24, 2022). The complaint, as supplemented 
and amended, alleges a violation of section 337 in the importation into 
the United States, the sale for importation, and the sale after 
importation within the United States after importation of certain 
replacement automotive lamps by reason of infringement of U.S. Design 
Patent Nos. D592,773; D635,701; D636,506; D650,931; D695,933; D705,963; 
D709,218; D714,975; D714,976; D720,871; D749,757; D749,762; D749,764; 
D774,222; D774,223; D776,311; D781,471; D785,833; D785,836; and 
D792,989. Id. at 3584. The notice of investigation names as respondents 
TYC Brother Industrial Co., Ltd. of Tainan, Taiwan; Genera Corporation 
(dba TYC Genera) of Brea, California; LKQ Corporation of Chicago, 
Illinois; and Keystone Automotive Industries, Inc. of Exeter, 
Pennsylvania (together, ``Respondents''). The Office of Unfair Import 
Investigations is not participating in this investigation.
    On February 7, 2022, the Chief ALJ (``CALJ'') ordered an 
evidentiary hearing for both Inv. Nos. 337-TA-1291 and 337-TA-1292 on 
the economic prong pursuant to the Commission's pilot program for 
interim initial determinations (``IID''). Order No. 6 (Feb. 7, 2022). 
The combined evidentiary hearing was held on April 20, 2022. On July 1, 
2022, the CALJ issued an IID finding that Kia 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. The investigation was reassigned to the 
presiding ALJ on July 6, 2022.
    On January 24, 2023, the ALJ issued the Final ID finding a 
violation of section 337 by Respondents with respect to '773, '701, 
'506, '931, '933, '218, '975, '976, '871, '762, '764, '222, '223, '311, 
'833, '836, and '989 patents. Final ID at 1. The Final ID finds no 
violation with respect to the '963, '757, and '471 patents based on 
noninfringement and failure to satisfy

[[Page 31521]]

the technical prong of the domestic industry requirement. Id. at 1, 
284-86. The Final ID also finds that no asserted patent is invalid as 
anticipated or obvious. Id. Concerning the economic prong of the 
domestic industry requirement, the Final ID reduced Kia's alleged 
investments due to Kia's failure to establish that certain of its 
alleged domestic industry products are representative of other alleged 
domestic industry products. Id. at 33-37.
    On February 6, 2023, Respondents filed a petition for review 
challenging the Final ID's findings on the economic prong of the 
domestic industry requirement, infringement, and validity. Also on 
February 6, 2023, Kia filed a petition for review challenging the Final 
ID's findings of noninfringement and contingently petitioning regarding 
the Final ID's findings concerning non-satisfaction of the technical 
prong of the domestic industry requirement regarding the '963, '757, 
and '471 patents. On February 14, 2023, Kia and Respondents filed 
responses to each other's petitions.
    Having examined the record of this investigation, including the 
ALJ's Final ID, the petitions for review, and the responses thereto, 
the Commission has determined to review the Final ID 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 briefing on 
the following issues. 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 Final 
ID, where Kia 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 Final ID's determination not to rely 
upon the testimony of Kia's expert in the Final ID's infringement 
analysis because such testimony is conclusory. Final ID at 33.
    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 Kia provided that proof, in 
this investigation. For example, was Kia 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 Final 
ID, where Kia 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 Kia provided that proof, in this 
investigation. For example, was Kia 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 Kia 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 
for the non-representative products. Please also identify, with 
citations to the record prior to the Final ID, where Kia satisfied its 
burden of proof as to the significance of the revised investments for 
each patent.
    4. Please address whether the Final ID, 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 product and asserted design 
from the standpoint of the ordinary observer, is consistent with 
relevant legal authority. Please specifically address whether the Final 
ID, by providing such a written explanation in the first instance, 
presents issues under the Administrative Procedure Act.
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
issue a cease and desist order that could result in the respondent 
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 (December 
1994).
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or a cease and desist order 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 position 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 Commission requests that the parties to 
the investigation file written submissions on the issues identified in 
this notice. The Commission encourages parties to the investigation, 
interested government agencies, and any other interested parties 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, which issued on January 
24, 2023. The Commission further requests that Kia submit proposed 
remedial orders, state the date when the asserted patents expire, 
provide the HTSUS subheadings under which the subject articles are 
imported, and supply a list of known importers of the subject article. 
The written submissions, exclusive of any exhibits, must not exceed 50 
pages, and must be filed no later than close of business on May 25, 
2023. Reply submissions must not exceed 20 pages, and must be filed

[[Page 31522]]

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.
    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-1291) 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 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. 2023-10477 Filed 5-16-23; 8:45 am]
BILLING CODE 7020-02-P