[Federal Register Volume 78, Number 88 (Tuesday, May 7, 2013)]
[Notices]
[Pages 26653-26654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10739]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-791/826 (Consolidated)]
Certain Electric Fireplaces, Components Thereof, Manuals for
Same, Certain Process for Manufacturing or Relating to Same and Certain
Products Containing Same Issuance of a Limited Exclusion Order;
Termination of Investigation
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 modify-in-part and reverse-in-part a final
initial determination (``ID'') (Order No. 20) of the presiding
administrative law judge (``ALJ'') 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 affirm Order No. 19
denying Yue's motion for summary determination. The Commission has
issued a limited exclusion order directed against covered products of
Reliap and Yue.
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 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 for
failure to 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 covered
products of 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
(``IA'') petitioned for review of Order No. 19 and the ALJ's final ID.
Twin-Star filed a response in opposition on July 30, 2012.
On September 14, 2012, the Commission determined to review Order
No. 19 and to review-in-part the final ID to the extent that it finds a
violation of section 337 based on the breach of contract allegation.
The determinations made in the final ID that were not reviewed became
final determinations of the Commission by operation of rule. See 19
U.S.C. 210.42(h).
The Commission requested briefing from the parties and interested
non-parties regarding a question concerning the issue under review and
on the issues of remedy, the public interest, and
[[Page 26654]]
bonding. 77 FR 58407-09 (Sept. 20, 2012).
On October 12, 2012, Twin-Star and the IA each filed a brief on the
issues for which the Commission requested written submissions. The
International Trade Commission Trial Lawyers Association filed a brief
concerning the issue under review on the same date. The IA filed a
reply brief on November 9, 2012.
Having reviewed the record in this investigation, including the
final ID, Order No. 19, and the parties' written submissions, the
Commission has determined to modify-in-part and reverse-in-part the
final ID as follows: (1) Vacating as moot the final ID to the extent
that it finds a violation of section 337 based on the breach of
contract and tortious interference with contract allegations with
respect to the non-competition and non-solicitation provisions of the
asserted contract; and (2) reversing the final ID to the extent it
finds a violation based on the non-disclosure provision of the asserted
contract. The Commission also affirms Order No. 19.
The Commission has made its determination on the issues of remedy,
the public interest, and bonding. The Commission has determined that
the appropriate form of relief is a limited exclusion order prohibiting
the unlicensed entry for consumption of electric fireplaces, components
thereof, manuals for same, and products containing same that are
manufactured abroad by or for, or imported by or for, Yue or Reliap, or
any of their affiliated companies, parents, subsidiaries, licensees,
contractors, or other related business entities, or successors or
assigns: (1) Using misappropriated trade secrets asserted in this
investigation; and/or (2) that infringe one or more of U.S. Copyright
Nos. TX0007350474, TX0007350476, VA0001772660, or VA0001772661.
The Commission determined that the public interest factors
enumerated in section 337(d)(1) (19 U.S.C. 1337(d)(1)) do not preclude
issuance of the limited exclusion order. Finally, the Commission
determined that a bond in the amount of 145 percent of the entered
value of the covered products that are entered for consumption is
required to permit temporary importation during the period of
Presidential review (19 U.S.C. 1337(j)). The Commission's order and
opinion were delivered to the President and to the United States Trade
Representative on the day of their issuance.
The Commission has terminated this investigation. 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, 210.42, 210.45, and 210.50 of the Commission's Rules of
Practice and Procedure (19 CFR 210.17, 210.42, 210.45, 210.50).
By order of the Commission.
Issued: May 1, 2013.
Lisa R. Barton,
Acting Secretary to the Commission.
[FR Doc. 2013-10739 Filed 5-6-13; 8:45 am]
BILLING CODE 7020-02-P