[Federal Register Volume 69, Number 209 (Friday, October 29, 2004)]
[Notices]
[Pages 63176-63177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24206]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-498]


In the Matter of Certain Insect Traps; Notice of Commission 
Determination To Terminate the Investigation in Its Entirety on the 
Basis of a Settlement Agreement; Request for Written Submissions on 
Remedy, the Public Interest, and Bonding With Respect to a Respondent 
Found in Default

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 terminate the above-captioned 
investigation on the basis of a settlement agreement. Notice is also 
hereby given that the Commission is requesting briefing on remedy, the 
public interest, and bonding with respect to a respondent found in 
default.

FOR FURTHER INFORMATION CONTACT: Rodney Maze, Ph.D., Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3065. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436, telephone (202) 205-2000. General information concerning the 
Commission may also be obtained by accessing its Internet server 
(http://www.usitc.gov). The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at http://edis.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: This patent-based section 337 investigation 
was instituted by the Commission based on a complaint filed by American 
Biophysics Corporation (``ABC'') of Greenwich, Rhode Island. 68 FR 
53752 (September 12, 2003). ABC alleged violations of section 337 of 
the Tariff Act of 1930 in the importation into the United States, the 
sale for importation, and the sale within the United States after 
importation of certain insect traps by reason of infringement of claims 
1 and 32 of U.S. Patent No. 6,145,243 (hereinafter ``the `243 
patent''). The complaint named Ferrellgas, LP, of Liberty, Missouri as 
respondent.
    On December 8, 2003, the administrative law judge (``ALJ'') issued 
an initial determination (``ID'') amending the complaint and notice of 
investigation to add Blue Rhino Global Sourcing, LLC, of Winston-Salem, 
North Carolina, Guangdon Dong Fang Imp. & Exp. Corp. of Shenzhen, 
China, and Lentek International, Inc. of Kissimmee, Florida 
(``Lentek'') as respondents.\1\ This ID was not reviewed by the 
Commission. See Order No. 5 Initial Determination; Notice of Commission 
Decision Not To Review, 69 FR 2003 (2004).
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    \1\ On April 16, 2004, CPD Associates, Inc., merged with Blue 
Rhino Corp. On April 20, 2004, Blue Rhino Corp., converted into a 
Delaware limited liability company called Blue Rhino, LLC. 
Immediately thereafter, on April 21, 2004, Blue Rhino, LLC merged 
into Ferrellgas, LP.
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    On April 19, 2004, the ALJ issued an ID, which was not reviewed by 
the Commission, finding respondent Lentek in default. See Order No. 11 
Initial Determination (April 19, 2004); Notice of Commission Decision 
Not To Review (May 19, 2004).
    On September 10, 2004, the ALJ issued his final initial 
determination (``ID'') finding no violation of section 337 based on a 
finding of no infringement of claims 1 and 32 of the `243 patent by the 
remaining respondents, Ferrellgas, LP, Blue Rhino Consumer Products, 
LLC, Blue Rhino Global Sourcing, LLC, and Guangdon Dong Fang Imp. & 
Exp. Corp. (collectively ``Ferrellgas/BlueRhino/GDF''). On September 
22, 2004, ABC and Ferrellgas/BlueRhino/GDF filed a joint motion for an 
extension of time in which to file their petitions for review of the 
ALJ's final ID. On September 24, 2004, the ALJ issued a recommended 
determination on remedy and bonding with respect to respondents 
Ferrellgas/BlueRhino/GDF.
    Meanwhile, on September 23, 2004, the Commission granted all 
parties their request for an extension and extended the deadline for 
determining whether to review the final ID until October 1, 2004.
    On September 30, 2004, ABC and respondents, Ferrellgas/Blue Rhino/
GDF, filed a joint motion to terminate the investigation as to all 
issues based upon a settlement agreement. The Commission found that 
there was no indication that termination of the investigation would 
have an adverse impact on the public interest and that termination 
based on a settlement agreement is generally in the public interest. 
Accordingly, the joint motion

[[Page 63177]]

to terminate the investigation was granted.
    With respect to respondent Lentek, section 337(g)(1), 19 U.S.C. 
1337(g)(1), and Commission Rule 210.16(c), 19 CFR 210.16(c), authorizes 
the Commission to order limited relief against a respondent found in 
default unless, after consideration of public interest factors, it 
finds that such relief should not issue. In this investigation, the ALJ 
found respondent Lentek in default and this decision was not reviewed 
by the Commission. As a result, ABC requested issuance of (a) a 
permanent exclusion order excluding from entry into the United States 
all of Lentek's ``Mosquito Trap'' products that infringe the claims of 
the asserted patents; and (b) a permanent cease and desist order 
prohibiting the importation into the United States, the sale for 
importation or sale within the United States after importation of all 
of Lentek's ``Mosquito Trap'' products that infringe the claims of the 
asserted patents.
    The Commission may issue an order that could result in the 
exclusion of Lentek's ``Mosquito Trap'' products from entry into the 
United States, and/or issue one or more cease and desist orders that 
could result in Lentek being required to cease and desist from engaging 
in unfair acts in the importation and sale of ``Mosquito Trap'' 
products. 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 In the Matter 
of Certain Devices for Connecting Computers via Telephone Lines, Inv. 
No. 337-TA-360, USITC Pub. No. 2843 (December 1994) (Commission 
Opinion).
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
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 President has 60 
days to approve or disapprove the Commission's action. 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.
    Written Submissions: The 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 September 24, 2004, 
recommended determination by the ALJ on remedy and bonding. 
Complainants and the Commission investigative attorney are also 
requested to submit proposed remedial orders for the Commission's 
consideration. The written submissions and proposed remedial orders 
must be filed no later than close of business on November 8, 2004. 
Reply submissions must be filed no later than the close of business on 
November 15, 2004. No further submissions on these issues will be 
permitted unless otherwise ordered by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. Any person desiring to submit a document 
(or portion thereof) to the Commission in confidence must request 
confidential treatment unless the information has already been granted 
such treatment during the proceedings. All such requests should be 
directed to the Secretary of the Commission and must include a full 
statement of the reasons why the Commission should grant such 
treatment. See section 201.6 of the Commission's Rules of Practice and 
Procedure, 19 CFR 201.6. Documents for which confidential treatment by 
the Commission is sought will be treated accordingly. All non-
confidential written submissions will be available for public 
inspection at the Office of the Secretary.
    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 sections 210.16(c) and 210.21 of the Commission's Rules of Practice 
and Procedure (19 CFR 210.16(c) and 210.21).

    By order of the Commission.

    Issued: October 25, 2004.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 04-24206 Filed 10-28-04; 8:45 am]
BILLING CODE 7020-02-P