Notice2024-00649
Certain Raised Garden Beds and Components Thereof; Notice of a Commission Determination To Review in Part a Final Initial Determination Finding a Violation of Section 337; Request for Written Submissions on Remedy, the Public Interest, and Bonding
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 16, 2024
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to review in part a final initial determination on violation of section 337 (the "Final ID") issued by the presiding administrative law judge ("ALJ") finding a violation of section 337 by reason of misappropriation of trade secrets and unfair competition based on false advertising under the Lanham Act. The Commission requests written submissions from the parties, interested government agencies, and other interested persons on the issues of remedy, the public interest, and bonding, under the schedule set forth below.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 10 (Tuesday, January 16, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 10 (Tuesday, January 16, 2024)]
[Notices]
[Pages 2645-2647]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00649]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1334]
Certain Raised Garden Beds and Components Thereof; Notice of a
Commission Determination To Review in Part a Final Initial
Determination Finding a Violation of Section 337; Request for Written
Submissions on Remedy, the Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to review in part a final
initial determination on violation of section 337 (the ``Final ID'')
issued by the presiding administrative law judge (``ALJ'') finding a
violation of section 337 by reason of misappropriation of trade secrets
and unfair competition based on false advertising under the Lanham Act.
The Commission requests written submissions from the parties,
interested government agencies, and other interested persons on the
issues of remedy, the public interest, and bonding, under the schedule
set forth below.
FOR FURTHER INFORMATION CONTACT: Edward S. Jou, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3316. 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="a9ecede0fa9ae1ccc5d9e9dcdac0ddca87cec6df">[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 October 19, 2022, based on an amended complaint (the ``Complaint'')
filed by Vego Garden, Inc. of Houston, Texas (the ``Complainant'' or
``Vego Garden''). 87 FR 63527-28 (Oct. 19, 2022). The Complaint alleges
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337, based upon the importation into the United States, and in
the sale of, certain raised garden beds and components thereof by
reason of misappropriation of trade secrets and unfair competition, the
threat or effect of which is to destroy or substantially injure a
domestic industry. Id. at 63527.
The Commission's notice of investigation named five respondents,
see id., and the name of one of the respondents was corrected pursuant
to an amended complaint. See 88 FR 2637-38 (Jan. 17, 2023) (amending
complaint and notice of investigation). The five named respondents, as
amended, are: Huizhou Green Giant Technology Co., Ltd. (``Green
Giant'') of Guangdong, China; Utopban International Trading Co., Ltd.
d/b/a Vegega (``Utopban International'') of Rosemead, California;
Utopban Limited (``Utopban'') of Hong Kong, China; Forever Garden of El
Monte, California; and VegHerb, LLC d/b/a Frame It All (``VegHerb'') of
Cary, North Carolina. See id. at 2638. The Office of Unfair Import
Investigations (``OUII'') is also a party in this investigation. Id.
The investigation was terminated as to Utopban International based
on withdrawal of the complaint's allegations. Order No. 9 (Jan. 30,
2023), unreviewed by Comm'n Notice (Feb. 27, 2023). The investigation
was terminated as to Forever Garden and VegHerb based on settlement
agreements. Order No. 11 (Feb. 23, 2023) (VegHerb) and Order No. 12
(Feb. 23, 2023) (Forever Garden), both unreviewed by Comm'n Notice
(Mar. 23, 2023).
An evidentiary hearing was held on May 22-25, 2023, and the ALJ
issued
[[Page 2646]]
the Final ID on September 8, 2023, finding violations of section 337 by
reason of misappropriation of trade secrets and unfair competition
based on false advertising under the Lanham Act. The ALJ also issued a
recommended determination (``RD'') on September 8, 2023. The RD
recommended the issuance of limited exclusion orders for Green Giant
and Utopban and a cease and desist order for Utopban. The RD further
recommended that a 100% bond be set during the Presidential review
period.
Respondents Green Giant and Utopban filed a petition for review of
the Final ID on September 20, 2023. Complainant Vego Garden filed a
response in opposition to the petition on September 28, 2023. OUII
filed a response in opposition to the petition on October 2, 2023.
Having reviewed the record of the investigation, including the
Final ID, the parties' submissions to the ALJ, the petition for review
and responses thereto, the Commission has determined to review the
Final ID in part. Specifically, the Commission has determined to review
the ID's findings with respect to: (1) the Commission's statutory
authority to investigate unfair acts under section 337(a)(1)(A)
involving extraterritorial conduct, including the alleged trade secret
misappropriation and false advertising under the Lanham Act; (2) the
ID's findings of trade secret misappropriation with respect to the
product development research trade secret and the product manufacturing
trade secret; and (3) all of the ID's findings with respect to domestic
industry (i.e., the existence of a domestic industry and injury to the
domestic industry) (ID at 103-136). The Commission has determined not
to review the remaining findings in the ID.
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 and the existing
evidentiary record.
(1) Discuss and identify any record evidence or arguments that were
presented to the ALJ describing or documenting the customer feedback,
market research, and cost analysis that was alleged to be part of the
product development research trade secret.
(2) Discuss and identify any record evidence or arguments that were
presented to the ALJ showing dissemination outside of Vego Garden of
the customer feedback, market research, and cost analysis alleged to be
part of the product development research trade secret and the
acquisition or use of such information by Respondents.
(3) When was the product development research trade secret
allegedly misappropriated? Discuss and identify any record evidence or
arguments that were presented to the ALJ describing or documenting the
state of Vego Garden's customer feedback, market research, and cost
analysis relating to its 8-inch product development at the time of the
alleged misappropriation. See, e.g., Final ID 77-78.
(4) Discuss and identify any record evidence or arguments that were
presented to the ALJ showing whether the product manufacturing trade
secret was developed, in whole or in part, in the United States. In
your response to this question, please address the claimed research and
development costs for this trade secret, Mr. Xiong's testimony
regarding the development of the bending machine, and the identity and
location of the named inventor on the Chinese patent application that
is alleged to describe the bending machine. See Final ID at 52-53
(citing research and development costs for bending machine); Tr.
(Xiong) at 62:14-21 (describing design of bending machine); JX-0021
(Chinese patent application).
(5) Discuss and identify any record evidence or arguments that were
presented to the ALJ explaining the relationship between the alleged
research and development costs for the asserted product development
research and product manufacturing trade secrets and the asserted
domestic industry expenditures. See Final ID at 35 (research and
development costs for 8-inch product), 52-53 (research and development
costs for bending machine), 108-19 (asserted domestic industry
expenditures).
(6) Discuss and identify any record evidence or arguments that were
presented to the ALJ supporting or contradicting the ID's determination
to allocate the entirety of Vego Garden's farm purchase and 2022
expenses to the domestic industry. See Final ID at 114. When responding
to this issue, please address Mr. Xiong's testimony describing
different uses of the farm property. See Tr. (Xiong) at 36:12-21
(research and development and marketing), 41:19-25 (office space).
(7) Discuss and identify any record evidence or arguments that were
presented to the ALJ regarding the accuracy and reliability of the ID's
allocations of rental expenses and ``non-real-estate, non-payroll R&D
expenses'' to the domestic industry. See Final ID at 114-15.
(8) Discuss and identify any record evidence or arguments that were
presented to the ALJ regarding the expenses that are reflected in the
$7.3 million in expenses cited by Mr. Xiong at the hearing. See Tr.
(Xiong) at 41:1-42:3; CDX-0003.
(9) Discuss and identify any record evidence or arguments that were
presented to the ALJ regarding the alleged injury to the domestic
industry that can be attributed to the alleged misappropriation of the
product development research trade secret.
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 respondent(s) 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
[[Page 2647]]
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.
In its initial submission, Complainant is also requested to
identify the remedy sought and Complainant and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainant is further requested 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 January 23, 2024. Reply submissions must be filed no later than the
close of business on January 30, 2024. Opening submissions are limited
to 50 pages. Reply submissions are limited to 25 pages. 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 (Mar. 19, 2020). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1334'') 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 simultaneously
with any confidential filing and must be served in accordance with
Commission Rule 210.4(f)(7)(ii)(A) (19 CFR 210.4(f)(7)(ii)(A)). 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 January 9,
2024.
This action is taken under the authority of 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: January 9, 2024.
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2024-00649 Filed 1-12-24; 8:45 am]
BILLING CODE 7020-02-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on January 16, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.