Notice2021-17082
Certain Foodservice Equipment and Components Thereof; Commission Determination To Review in Part a Final Initial Determination Finding No Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding
Primary source
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Published
August 11, 2021
Issuing agencies
International Trade Commission
Abstract
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 June 4, 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.
Full Text
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<title>Federal Register, Volume 86 Issue 152 (Wednesday, August 11, 2021)</title>
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[Federal Register Volume 86, Number 152 (Wednesday, August 11, 2021)]
[Notices]
[Pages 44054-44056]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17082]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1166]
Certain Foodservice Equipment and Components Thereof; Commission
Determination To Review in Part a Final Initial Determination Finding
No Violation of Section 337; Schedule for Filing Written Submissions on
the Issues Under Review and on Remedy, the Public Interest, and Bonding
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 June 4, 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.
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 <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#1c5958554f2f5479706c5c696f75687f327b736a"><span class="__cf_email__" data-cfemail="fcb9b8b5afcfb499908cbc898f95889fd29b938a">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. 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 this investigation
on July 3, 2019, based on a complaint filed on behalf of Illinois Tool
Works, Inc. of Glenview, Illinois; Vesta Global Limited of Hong Kong;
Vesta (Guangzhou) Catering Equipment Co., Ltd. of China; and Admiral
Craft Equipment Corp. of Westbury, New York (collectively,
``Complainants''). 84 FR 31911 (Jul. 3, 2019). The complaint, as
supplemented, alleged violations of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, based upon the importation of
articles into the United States, or in the sale of such articles by the
owner, importer, or consignee of certain foodservice equipment and
components thereof by reason of misappropriation of trade secrets and
unfair competition through tortious interference with contractual
relationships, the threat or effect of which is to destroy or
substantially injure a domestic industry. Id. at 31911-12. The notice
of investigation named as respondents Guangzhou Rebenet Catering
Equipment Manufacturing Co., Ltd.; Zhou Hao; Aceplus International
Limited (aka Ace Plus International Ltd.); Guangzhou Liangsheng Trading
Co., Ltd.; and Zeng Zhaoliang, all of China. Id. at 31912. The Office
of Unfair Import Investigations (``OUII'') was also named as a party in
this investigation. Id.
On July 9, 2020, Order No. 52 granted a motion for summary
determination of no substantial injury to a domestic industry. The
Commission determined to review Order No. 52, and on December 14, 2020,
reversed the grant of summary determination.
On June 4, 2021, the ALJ issued the final ID, which found that
Respondents did not violate section 337, primarily based on a
Complainants' failure to establish a domestic industry. The final ID
found that the Commission has in rem jurisdiction over the accused
products, subject matter jurisdiction, and personal jurisdiction. ID at
99. The final ID also found that Respondents imported into the United
States, sold for importation, or sold within the United States after
importation the accused products. Id. The final ID further found that
Respondents have misappropriated certain of Complainants' trade secrets
in the manufacture of certain accused products, but that Complainants
have not shown that Respondents tortiously interfered with contractual
relationships. Id. The final ID additionally found that Complainants
have not shown that the importation and sale of accused products has
the threat or effect of destroying or substantially injuring a domestic
industry.
The RD issued on June 10, 2021. The RD recommended that, if the
Commission finds a violation of section 337, the Commission should
issue limited exclusion orders of various durations for each of the
various categories of accused products. RD at 10. The durations of the
recommended exclusion orders are all quite short, ranging from 1-17
months from issuance. Id. at 10-11. The RD further recommended that a
cease and desist order would be unnecessary. Id. at 12. The RD
additionally recommended that a bond of 1% of entered value be imposed
during the period of Presidential review. The public interest was not
delegated to the ALJ.
On June 21, 2021, Complainants and Respondents filed petitions for
review and OUII filed a contingent petition for review. On June 29,
2021, the parties filed responses to the petitions.
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 and conclusions as to the existence of
a domestic industry and injury to a domestic industry.
(2) The final ID's findings and conclusions regarding the wrongful
taking and use of the Bills of Materials
[[Page 44055]]
(``BOM'') Trade Secrets and the Custom Components and Mold Trade
Secrets.
The Commission has determined to not review the remainder of the final
ID.
The parties are requested to brief their positions with reference
to the applicable law and the evidentiary record regarding the
questions provided below:
(1) Regarding domestic industry:
(A) Please explain whether Complainants' asserted expenditures for
warranty services differ from those of a mere importer, including by
discussing: (A) How the Commission and the Federal Circuit have
considered such investments in prior investigations, and (B) how the
facts of this investigation should be assessed in light of applicable
precedent. Also address the extent to which the warranty servicing
activities relied upon to show the existence of a domestic industry
need to take place in the United States either as a legal or a
practical matter, such that those activities would not distinguish a
domestic industry from a mere importer.
(B) Are complainants required to allocate payments made to third-
party service providers for warranty services to qualifying activities
in an investigation under 19 U.S.C. 1337(a)(1)(A)? In answering this
question, please discuss any relevant legal authority.
(C) Did Complainants sufficiently allocate their payments to third-
party service providers for warranty services to qualifying activities.
(D) If the payments to third-party service providers are not
sufficiently allocated, what qualifying expenditures remain?
(E) What evidence and argument were timely-presented regarding the
nature and significance of those remaining qualifying expenditures?
(F) Assuming there is an industry in the United States within the
meaning of 19 U.S.C. 1337(a)(1)(A), please discuss the evidence and
arguments addressing whether the industry is substantially injured or
threatened with substantial injury.
(2) Regarding wrongful taking and use of the BOM Trade Secrets:
(A) To what extent are Vesta's BOM Codes non-public information,
and to what extent did the final ID make findings on that point
(particularly unpetitioned findings)?
(B) Is it contradictory for the final ID to consider the
similarities in Vesta's BOM Codes and Rebenet's part numbers in its
wrongful taking and use analysis, where the final ID finds that the BOM
Codes are not themselves trade secrets? Please discuss any relevant
legal authority.
(C) If evidence of the similarities between Vesta's BOM Codes and
Rebenet's part numbers cannot be considered for determining wrongful
taking and use of the BOM Trade Secrets, could Complainants still meet
their burden of proof as to those elements of trade secret
misappropriation?
(3) Regarding wrongful taking and use of the Custom Components and
Mold Trade Secrets:
(A) Is it contradictory for the final ID to consider the
similarities in Vesta's BOM Codes and Rebenet's part numbers, and
Vesta's and Rebenet's drawings, where those codes and drawings were not
found to be trade secrets? Please discuss any relevant legal authority.
(B) If evidence of the similarities between Vesta's BOM Codes and
Rebenet's part numbers, and Vesta's and Rebenet's drawings cannot be
considered for determining wrongful taking and use of the Custom
Components and Mold Trade Secrets, could Complainants still meet their
burden of proof as to those elements of trade secret misappropriation?
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 June
10, 2021.
Initial written submissions, limited to 60 pages, must be filed no
later than the close of business on August 19, 2021. The following
information is also requested in the initial written submissions and
will not count against the above-mentioned page limitations.
Complainants are requested to identify the form of the remedy sought.
Complainants and OUII are requested 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 30 pages, must be filed no later than
the close of business on August 26, 2021. 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-1166'') in a prominent place on
the cover page and/or the first
[[Page 44056]]
page. (See Handbook for Electronic Filing Procedures, <a href="https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf">https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf</a>). 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 August 5,
2021.
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: August 5, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-17082 Filed 8-10-21; 8:45 am]
BILLING CODE 7020-02-P
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