[Federal Register Volume 85, Number 184 (Tuesday, September 22, 2020)]
[Notices]
[Pages 59548-59549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20843]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1155]
Certain Luxury Vinyl Tile and Components Thereof; Issuance of a
General Exclusion Order and Cease and Desist Orders; Termination of the
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 affirmed a summary determination of violation of section
337 with respect to certain defaulting respondents and has determined
to issue a general exclusion order (``GEO'') denying entry of certain
infringing luxury vinyl tile and components thereof as well as cease
and desist orders (``CDOs'') against certain of the defaulting
respondents. The investigation is terminated.
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 https://edis.usitc.gov. For help accessing EDIS, please email
EDIS3Help@usitc.gov. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.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: On May 16, 2019, the Commission instituted
this investigation based on a complaint filed by Mohawk Industries,
Inc. of Calhoun, Georgia; Flooring Industries Ltd. Sarl of Bertrange,
Luxembourg; and IVC US Inc. of Dalton, Georgia (collectively,
``Complainants''). 84 FR 22161 (May 16, 2019). The complaint, as
supplemented, alleges a violation of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337 (``section 337'') in the importation
into the United States, the sale for importation, or the sale within
the United States after importation of certain luxury vinyl tiles by
reason of infringement of certain claims of U.S. Patent Nos. 9,200,460
(``the '460 patent''); 10,208,490 (``the '490 patent''); and 10,233,655
(``the '655 patent'') (collectively, ``the Asserted Patents''). Id. The
complaint further alleges that a domestic industry exists. Id. The
Commission's notice of investigation names forty-five respondents,
including: ABK Trading Corp. of Katy, Texas (``ABK''); Aurora Flooring
LLC of Kennesaw, Georgia (``Aurora''); Changzhou Runchang Wood Co.,
Ltd. of Jiangsu, China (``Runchang''); Go-Higher Trading (Jiangsu) Co.,
Ltd. of Jiangsu, China (``Go-Higher''); Jiangsu Divine Building
Technology Development Co. Ltd. Jiangsu, China (``Divine''); Jiangsu
Lejia Plastic Co. Ltd. of Jiangsu, China (``Lejia''); JiangSu Licheer
Wood Co., Ltd. of Jiangsu, China (``Licheer''); Maxwell Flooring
Distribution LLC of Houston, Texas (``Maxwell Flooring''); Mr. Hardwood
Inc. of Acworth, Georgia (``Mr. Hardwood''); and Sam Houston Hardwood
Inc. of Houston, Texas (``Sam Houston'') (collectively, ``Defaulting
Respondents''). Id. The Office of Unfair Import Investigations
(``OUII'') is also participating in the investigation. Id.
The Commission previously terminated the investigation as to
thirty-five respondents based on settlement, consent order, or partial
withdrawal of the complaint. See Order No. 14 (Sept. 26, 2019),
unreviewed by, Notice (Oct. 17, 2019); Order Nos. 15-21 (Sept. 27, 2019
for all), unreviewed by, Notice (Oct. 17, 2019); Order Nos. 23-25 (Oct.
2, 2019 for all), unreviewed by, Notice (Oct. 23, 2019); Order No. 27
(Oct. 9, 2019), unreviewed by, Notice (Nov. 6, 2019); Order No. 26
(Oct. 9, 2019)), unreviewed by, Notice (Nov. 8, 2019); Order No. 30
(Oct. 25, 2019), unreviewed by, Notice (Nov. 21, 2019); Order No. 34
(Nov. 7, 2019), unreviewed by, Notice (Dec. 11, 2019); Order No. 35
(Jan. 24, 2020), unreviewed by, Notice (Feb. 25, 2020).
On November 21, 2019, the Commission found respondent Go-Higher in
default. See Order No. 31 (Oct. 25, 2019), unreviewed by, Notice (Nov.
21, 2019). On November 22, 2019, the Commission found an additional
eight respondents in default: ABK; Aurora; Divine; Lejia; Licheer;
Maxwell Flooring; Mr. Hardwood; and Sam Houston. See Order No. 32 (Oct.
30, 2019), unreviewed by, Notice (Nov. 22, 2019). On November 25, 2019,
the Commission found respondent Runchang in default. See Order No. 33
(Oct. 30, 2019), unreviewed by, Notice (Nov. 25, 2019).
[[Page 59549]]
On January 15, 2020, Complainants filed a motion for summary
determination that Complainants have satisfied the domestic industry
requirement and of a violation of section 337 by the Defaulting
Respondents. Complainants filed supplements to their summary
determination motion on January 23, 2020, February 11, 2020, and
February 19, 2020. On February 12, 2020, OUII filed a response to
Complainants' motion. On May 14, 2020, OUII filed a supplemental
response.
On May 15, 2020, the ALJ issued Order No. 36 granting the motion
for summary determination and finding a violation of section 337 by the
Defaulting Respondents. The ALJ recommended that the Commission issue a
GEO prohibiting entry of luxury vinyl tiles that infringe the asserted
claims of the Asserted Patents and CDOs against the five domestic
Defaulting Respondents: ABK, Aurora, Maxwell Flooring, Mr. Hardwood,
and Sam Houston. The ALJ also recommended setting a bond of $0.08 per
square foot of luxury vinyl tile product and components thereof
imported during the period of Presidential review. Id. No party
petitioned for review of the ID.
On June 30, 2020, the Commission determined to review the ID in
part. 85 FR 40683 (July 7, 2020). On review, the Commission affirmed
the finding of violation of section 337 by the Defaulting Respondents'
importation of luxury vinyl tile and components thereof that infringe
one or more claims of the Asserted Patents. Id. Further, the Commission
determined to review and, on review, to take no position on the ID's
findings regarding the economic prong of the domestic industry
requirement under subsection 337(a)(3)(B) (19 U.S.C. 1337(a)(3)(B))
with respect to the '460 patent. Id. The Commission also determined to
review the ID's findings regarding a domestic industry for the '490 and
'655 patents, and on review, to clarify that the Commission did not
intend to imply that the investments already made with respect to those
patents are not significant or could not be used to show the existence
of a domestic industry under section 337(a)(3). Id. The Commission
further determined to review the ID's findings as to two products from
non-parties, i.e., the Quickstyle and Uniflor Aqua products. Id. The
Notice also requested written submissions on remedy, public interest,
and bonding. See id.
On July 15, 2020, Complainants and OUII submitted briefs on remedy,
public interest, and bonding supporting the ALJ's recommendations. On
July 22, 2020, OUII submitted a reply to Complainants' response. No
other submissions were filed in response to the Notice.
As noted above, the Commission affirms the ID's finding that there
is a violation of section 337 with respect to Defaulting Respondents.
Moreover, the Commission finds that the statutory requirements for
issuance of a GEO under section 337(d)(2) are met with respect to the
Defaulting Respondents. See 19 U.S.C. 1337(d)(2). The Commission also
finds that issuance of CDOs against the five domestic Defaulting
Respondents is appropriate under 337(f)(1). See 19 U.S.C. 1337(f)(1).
In addition, the Commission finds that the public interest factors do
not preclude issuance of the requested relief. See 19 U.S.C.
1337(d)(1), (f)(1).
The Commission therefore has determined that the appropriate remedy
in this investigation is: (1) A GEO prohibiting the unlicensed entry of
certain luxury vinyl tile and components thereof that infringe one or
more of claims 7-8, 13, 15-17, 20-23, and 30 of the '460 patent, claims
1-6, 8, 10-11, 13-16, and 18 of the '490 patent, and claims 1-4, 6-16,
18, and 20-26 of the '655 patent; and (2) CDOs against ABK, Aurora,
Maxwell Flooring, Mr. Hardwood, and Sam Houston. The Commission has
also determined that the bond during the period of Presidential review
shall be in the amount of $0.08 per square foot of imported luxury
vinyl tile and components thereof that are subject to the GEO and CDOs.
See 19 U.S.C. 1337(j). The Commission has further determined to vacate
the findings under review to the extent the ID adjudicates infringement
of the Asserted Patents as to non-respondents.
The Commission's orders were delivered to the President and to the
United States Trade Representative on the day of their issuance. The
investigation is terminated.
While temporary remote operating procedures are in place in
response to COVID-19, the Office of the Secretary is not able to serve
parties that have not retained counsel or otherwise provided a point of
contact for electronic service. Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the
Commission orders that the Complainant complete service for any party
without a method of electronic service noted on the attached
Certificate of Service and shall file proof of service on the
Electronic Document Information System (EDIS).
The Commission vote for this determination took place on September
16, 2020.
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: September 16, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-20843 Filed 9-21-20; 8:45 am]
BILLING CODE 7020-02-P