Notice2024-12885
Certain Pick-Up Truck Folding Bed Cover Systems and Components Thereof (III); Notice of a Commission Determination Not To Review an Initial Determination Granting Summary Determination of Violation of Section 337; Request for Written Submissions on Remedy, the Public Interest, and Bonding
Primary source
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Published
June 13, 2024
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination ("ID") (Order No. 33) issued by the presiding administrative law judge ("ALJ") granting a motion for summary determination of violation of section 337. The Commission requests written submissions from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding, under the schedule set forth below.
Full Text
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<title>Federal Register, Volume 89 Issue 115 (Thursday, June 13, 2024)</title>
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[Federal Register Volume 89, Number 115 (Thursday, June 13, 2024)]
[Notices]
[Pages 50370-50372]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12885]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1353]
Certain Pick-Up Truck Folding Bed Cover Systems and Components
Thereof (III); Notice of a Commission Determination Not To Review an
Initial Determination Granting Summary Determination of Violation of
Section 337; Request for Written Submissions 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 not to review an initial determination
(``ID'') (Order No. 33) issued by the presiding administrative law
judge (``ALJ'') granting a motion for summary determination of
violation of section 337. The Commission requests written submissions
from the parties, interested government agencies, and interested
persons on the issues of remedy, the public interest, and bonding,
under the schedule set forth below.
FOR FURTHER INFORMATION CONTACT: Robert J. Needham, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-5468. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at <a href="http://edis.usitc.gov">http://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#a2e7e6ebf191eac7ced2e2d7d1cbd6c18cc5cdd4"><span class="__cf_email__" data-cfemail="c580818c96f68da0a9b585b0b6acb1a6eba2aab3">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server (<a href="http://www.usitc.gov">http://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 February 27, 2023, based on a complaint, as supplemented and
amended, filed by Extang Corporation of Ann Arbor, Michigan
(``Extang''); Laurmark Enterprises, Inc. d/b/a BAK Industries (``BAK'')
of Ann Arbor, Michigan; and UnderCover, Inc. of Rogersville, Missouri
(together, ``Complainants''). 88 FR 12422-23 (Feb. 27, 2023). The
complaint alleged violations of section 337 in the importation into the
United States, the sale for importation, and the sale within the United
States after importation of certain pick-up truck folding bed cover
systems and components thereof by reason of infringement of certain
claims of U.S. Patent Nos. 7,188,888; 7,484,788 (``the '788 patent'');
8,061,758 (``the '758 patent''); 7,537,264; 8,182,021; 8,690,224; and
9,815,358. Id. at 12422. The Commission's notice of investigation named
21 respondents: 4 Wheel Parts of Compton, California; American Trucks
of Lenexa, Kansas; Auto Dynasty a/k/a Shun Fung Int'l Inc. of City of
Industry, California; AUTOSTARLAND Technology (US), Inc. of Riverside,
California; DNA Motoring of City of Industry, California; Fanciest
Pickup Accessories of Riverside, California; Future Trucks a/k/a Future
Trading Company, LLC of Houston, Texas; Ikon Motorsports, Inc. of City
of Industry, California; Jiaxing Kscar Auto Accessories Co., Ltd. a/k/a
KSC Auto of Pinghu City, China; Kiko Kikito of Ruian City, China; Lyon
Cover Auto a/k/a Truck Tonneau Covers of Wenzhou City, China; Mamoru
Cover, a/k/a Ningbo Surpass Auto Parts Co., Ltd. of Ningbo City, China;
MOSTPLUS Auto of Hong Kong, China; Newpowa America, Inc. of Ontario,
California; New Home Materials, Inc. of Riverside, California; OEDRO of
Kent, Washington; Pickup Zone, a/k/a Dai Qun Feng of Riverside,
California; RDJ Trucks, LLC of Talmo, Georgia (``RDJ''); Smittybilt,
Inc. of Compton, California; Trek Power, Inc. of Placentia, California
(``Trek''); and Wenzhou Tianmao Automobile Parts Co., Ltd. of Wenzhou
City, China. Id. The Office of Unfair Import Investigations (``OUII'')
is participating in this investigation. Id.
The Commission subsequently granted leave to amend the complaint
and notice of investigation to change the names of several respondents.
Order No. 9 (May 4, 2023), unreviewed by Notice (May 30, 2023).
Specifically, the Commission granted leave to change the names of: (1)
respondents 4 Wheel Parts and Smittybilt, Inc. to TAP Worldwide, LLC d/
b/a 4 Wheel Parts; (2) respondent MOSTPLUS Auto to Ultimate Motor Parts
Limited; (3) respondent OEDRO to Hong Kong Yintatech Network Co., Ltd.
a/k/a OEDRO; (4) respondent Ikon Motorsports, Inc. to Advance Tuning,
LLC d/b/a Ikon Motorsports, Inc.; (5) respondents AUTOSTARLAND
Technology (US), Inc. and Pickup Zone a/k/a Dai Qun Feng to
Autostarland Technology (US), Inc. dba Pickup Zone; (6) respondent
Mamoru Cover a/k/a Ningbo Surpass Auto Parts Co., Ltd. to Ningbo
Surpass Auto Parts Co., Ltd.; (7) respondent American Trucks to
American Trucks Inc. and Turn 5 d/b/a American Trucks; (8) respondent
Kiko
[[Page 50371]]
Kikito to Wenzhou Tianmao Automobile Parts Co., Ltd. DBA Kikito and
Rui'an Yiming Trading Co. Ltd.; and (9) respondent Lyon Cover Auto a/k/
a Truck Tonneau Covers to Wenzhou Tianmao Automobile Parts Co., Ltd.
DBA Lyon Cover and Wenzhou Chaoming Auto Parts Co., Ltd.
The Commission also terminated two respondents based on settlement,
one respondent based on the entry of a consent order, and 14
respondents based on both settlement and the entry of a consent order.
Order No. 15 (Jun. 13, 2023), unreviewed by Notice (Jul. 11, 2023)
(terminating TAP Worldwide, LLC d/b/a 4 Wheel Parts based on a
settlement agreement); Order No. 17 (Jul. 11, 2023), unreviewed by
Notice (Aug. 9, 2023) (terminating Advance Tuning, LLC d/b/a Ikon
Motorsport, Inc. based on the entry of a consent order); Order No. 18
(Jul. 18, 2023), unreviewed by Notice (Aug. 16, 2023) (terminating
American Trucks, Inc. and Turn 5 d/b/a American Trucks based on a
settlement agreement); Order Nos. 22, 23, and 24 (Jul. 31, 2023),
unreviewed by Notice (Aug. 28, 2023) (terminating Ningbo Surpass Auto
Parts Co., Ltd., Newpowa America, Inc., and New Home Materials, Inc.
based on a settlement agreement and entry of a consent order); Order
Nos. 25 and 26 (Aug. 1, 2023), unreviewed by Notice (Aug. 30, 2023)
(terminating Autostarland Technology (US), Inc. d/b/a Pickup Zone and
Fanciest Pickup Accessories based on a settlement agreement and entry
of a consent order); Order No. 27 (Aug. 21, 2023), unreviewed by Notice
(Sept. 19, 2023) (terminating Auto Dynasty a/k/a Shun Fung
International Inc. based on a settlement agreement and entry of a
consent order); Order No. 28 (Aug. 24, 2023), unreviewed by Corrected
Notice (Sept. 20, 2023) (terminating DNA Motoring based on a settlement
agreement and entry of a consent order); Order Nos. 29 and 30 (Aug. 25,
2023), unreviewed by Notice (Sept. 21, 2023) (terminating Wenzhou
Tianmao Automobile Parts Co., Ltd., Wenzhou Tianmao Automobile Parts
Co., Ltd. DBA Kikito, Rui'an Yiming Trading Co. Ltd., Wenzhou Tianmao
Automobile Parts Co., Ltd. DBA Lyon Cover, Wenzhou Chaoming Auto Parts
Co., Ltd., Jiaxing Kscar Auto Accessories Co. Ltd. a/k/a KSC Auto,
Future Trucks a/k/a Future Trading Co., LLC, Ultimate Motor Parts
Limited, and Hong Kong Yintatech Network Co., Ltd. based on a
settlement agreement and entry of a consent order).
On August 22, 2023, the Commission found RDJ and Trek in default.
Order No. 19 (Jul. 21, 2023), unreviewed by Notice (Aug. 22, 2023). On
October 6, 2023, Extang and BAK (``Movants'') filed a motion for a
summary determination of violation with respect to claims 2-4 of the
'758 patent and claims 1-3 of the '788 patent, and requested the entry
of a general exclusion order (``GEO''), the entry of cease and desist
orders (``CDOs'') against RDJ and Trek, and the imposition of a bond
rate of 100 percent during the period of Presidential review. On
October 27, 2023, OUII filed a response in support of the motion and
the requested remedial relief.
On April 23, 2024, the ALJ issued the subject ID granting the
Movants' motion and included a recommended determination on remedy and
bond (``RD'') recommending issuance of a GEO, the issuance of CDOs
against RDJ and Trek, and the imposition of a bond in the amount of 100
percent of the entered value of infringing products during the period
of Presidential review. Specifically, the ID finds that: (1) the
Commission has statutory authority in the present investigation, in rem
jurisdiction over the accused products, and that in personam
jurisdiction is not required and is in any event waived by defaulting;
(2) that the importation requirement is satisfied; (3) that all of the
remaining asserted claims are infringed by RDJ's and Trek's products;
and (4) that Movants have satisfied the domestic industry requirement
with respect to the '758 and '788 patents. In support of its
recommendation for issuance of a GEO, the RD finds: (1) that a GEO is
necessary in this investigation to prevent circumvention of a limited
exclusion order and (2) that the record shows a pattern of violation of
section 337 through importation of articles that infringe the '758 and
'788 patents, and that the source of those infringing articles is
difficult to identify. No party petitioned for review of the ID.
The Commission has determined not to review the ID.
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
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: 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 ALJ on remedy and bonding.
In their initial submission, Complainants are also requested to
identify the remedy sought and Complainants and OUII are requested to
submit proposed remedial orders for the Commission's consideration.
Complainant is further requested to state the dates that the Asserted
Patents expire, 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
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of business on June 21, 2024. Reply submissions must be filed no later
than the close of business on June 28, 2024. 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-1353) 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. 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 June 7,
2024.
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: June 7, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-12885 Filed 6-12-24; 8:45 am]
BILLING CODE 7020-02-P
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