Notice2023-10476
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
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Published
May 17, 2023
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade 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.
Full Text
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<title>Federal Register, Volume 88 Issue 95 (Wednesday, May 17, 2023)</title>
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[Federal Register Volume 88, Number 95 (Wednesday, May 17, 2023)]
[Notices]
[Pages 31522-31524]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10476]
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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.
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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 <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#5b1e1f120868133e372b1b2e28322f38753c342d"><span class="__cf_email__" data-cfemail="86c3c2cfd5b5cee3eaf6c6f3f5eff2e5a8e1e9f0">[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: 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, <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, (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
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