[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Notices]
[Pages 58147-58149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23035]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-791/826]
Certain Electronic Fireplaces, Components Thereof, Manuals for
Same, Certain Processes for Manufacturing or Relating to Same and
Certain Products Containing Same; Determination To Review in Part ALJ
Initial Determination; Request for Written Submissions
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 (``ID'') (Order No. 20) of the presiding administrative
law judge (``LJ'') finding the remaining respondents, Shenzhen Reliap
Industrial Co. (``Reliap'') and Yue Qiu Sheng (``Yue''), both of
Shenzhen, China, in default and in violation of section 337. The
Commission has also determined to review the ALJ's Order No. 19 denying
respondents' motion for summary determination that complainants' breach
of contract allegation is outside the scope of the investigation. The
Commission is also requesting briefing on the issue on review and on
remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Clint Gerdine, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202) 708-2310. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street SW., Washington, DC 20436,
telephone (202) 205-2000. General
[[Page 58148]]
information concerning the Commission may also be obtained by accessing
its Internet server at http://www.usitc.gov. The public record for this
investigation may be viewed on the Commission's electronic docket
(EDIS) at http://edis.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: The Commission instituted Investigation No.
337-TA-791 (``the 791 investigation'') on July 20, 2011, based on a
complaint filed by Twin-Star International, Inc. of Delray Beach,
Florida and TS Investment Holding Corp. of Miami, Florida
(collectively, ``Twin-Star''). 76 FR 43345-46 (July 20, 2011). The
Commission instituted Investigation No. 337-TA-826 on January 19, 2012
based on another complaint filed by Twin-Star, and consolidated it with
the 791 investigation. 77 FR 2757-58 (Jan. 19, 2012). The complaints
allege a violation of section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337, in the importation into the United States, the
sale for importation, and the sale within the United States after
importation of certain electric fireplaces, components thereof, manuals
for same, certain processes for manufacturing or relating to same and
certain products containing same by reason of infringement of U.S.
Copyright Nos. TX0007350474; TX0007350476; VA0001772660; and
VA0001772661; and by reason of misappropriation of trade secrets,
breach of contract, and tortious inference with contract, the threat or
effect of which is to destroy or substantially injure an industry in
the United States.
The Commission's notice of investigation named Reliap, Yue, and
Whalen Furniture Manufacturing, Inc. (``Whalen'') of San Diego,
California as respondents. On July 3, 2012, the Commission issued
notice of its determination not to review the ALJ's ID terminating the
investigation as to Whalen based on a consent order and settlement
agreement.
On June 20, 2012, Twin-Star moved for an ID finding the remaining
respondents, Reliap and Yue, in default and in violation of section 337
pursuant to Commission Rule 210.17, 19 CFR 210.17. The Commission
investigative attorney filed a response in support of the motion.
On July 13, 2012, the ALJ granted Twin-Star's motion and issued the
final ID in this investigation finding the remaining respondents in
default and in violation of section 337 pursuant to 19 CFR 210.17
because they did not participate in the investigation following
withdrawal of their counsel on March 12, 2012. The ID also contained
the ALJ's recommended determination on remedy. Specifically, the ALJ
recommended issuance of a limited exclusion order with respect to the
defaulting respondents.
Also on July 13, 2012, the ALJ issued Order No. 19, denying a
motion filed by Yue on December 11, 2011, for summary determination
that Twin-Star's breach of contract claim is outside the scope of the
investigation. On July 20, 2012, the Commission investigative attorney
petitioned for review of Order No. 19 and the ALJ's final ID. Twin-Star
filed a response in opposition on July 30, 2012.
Having examined the record of this investigation, including the
ALJ's ID, Order No. 19, and the parties' briefing, the Commission has
determined to review Order No. 19 and to review the final ID in part to
the extent that it finds a violation of section 337 based on the breach
of contract allegations. The Commission has determined not to review
the remainder of the ID.
On review, the parties, interested government agencies, and any
other interested persons are requested to submit briefing on the issue
under review and to address in particular the following:
(1) What support exists for the notion that unfair acts or unfair
methods of competition under section 337(a)(1)(A), 19 U.S.C.
1337(a)(1)(A), are limited to ``public wrongs'' as opposed to ``private
wrongs.'' Please discuss statutory language, any relevant legislative
history, and legal precedent, particularly Tianrui Group Co. v. U.S.
Int'l Trade Comm'n, 661 F.3d 1322 (Fed. Cir. 2011).
(2) Please explain whether a breach of contract claim can give rise
to a violation of 19 U.S.C. 1337(a)(1)(A), and discuss any relevant
statutory language, legislative history, and legal precedent.
In connection with the final disposition of this investigation, the
Commission may issue an order that results in the exclusion of the
subject articles from entry into the United States. See 19 U.S.C.
1337(d). 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) (Commission Opinion).
When 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 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.
When the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve
or disapprove 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, interested
government agencies, and any other interested persons are encouraged to
file written submissions on the issues of remedy, the public interest,
and bonding. Complainant is requested to state the issue under review
and the dates that the copyrights at issue expire and the HTSUS numbers
under which the accused products are imported. The written submissions
must be filed no later than close of business on October 12, 2012.
Reply submissions must be filed no later than the close of business on
November 9, 2012. 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 and submit 8
true paper copies to the Office of the Secretary by noon the next day
pursuant to Commission rule 210.4(f), 19 CFR 210.4(f). Submissions
should refer to the
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investigation number (``Inv. No. 337-TA-791/826'') in a prominent place
on the cover page and/or the first page. (See Handbook for Electronic
Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf).
Any person desiring to submit a document (or portion thereof) to
the Commission in confidence must request confidential treatment unless
the information has already been granted such treatment during the
proceedings. All such requests should be directed to the Secretary of
the Commission and must include a full statement of the reasons why the
Commission should grant such treatment. See 19 CFR 210.6. Documents for
which confidential treatment by the Commission is sought will be
treated accordingly. All nonconfidential written submissions will be
available for public inspection at the Office of the Secretary.
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 sections 210.17, 42-43, 45-46 and 50 of the Commission's Rules of
Practice and Procedure (19 CFR 210.17, 210.42-43, 210.45-46, and
210.50).
By order of the Commission.
Issued: September 13, 2012.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2012-23035 Filed 9-18-12; 8:45 am]
BILLING CODE 7020-02-P