[Federal Register Volume 86, Number 40 (Wednesday, March 3, 2021)]
[Notices]
[Pages 12495-12496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04312]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1203]


Notice of a Commission Determination To Issue a Limited Exclusion 
Order Against the Defaulting Respondent; Termination of the 
Investigation; Certain Rolled-Edge Rigid Plastic Food Trays

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission (``Commission'') has determined to issue a limited exclusion 
order against defaulted respondent Ningbo Linhua Plastic Co., Ltd. 
(``Ningbo''), the last remaining respondent. The Commission has also 
determined to impose a bond equal to one hundred percent (100%) of the 
entered value of the infringing products imported during the period of 
Presidential review. The investigation is hereby terminated.

FOR FURTHER INFORMATION CONTACT: Amanda Fisherow, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-2737. 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 
<a href="/cdn-cgi/l/email-protection#0e4b4a475d3d466b627e4e7b7d677a6d20696178"><span class="__cf_email__" data-cfemail="6f2a2b263c5c270a031f2f1a1c061b0c41080019">[email protected]</span></a>. 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, telephone 202-205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on June 23, 2020, based on a complaint filed by Clearly Clean Products, 
LLC of South Windsor, Connecticut and Converter Manufacturing, LLC of 
Orwigsburg, Pennsylvania (``Complainants''). 85 FR 37689-90 (June 23, 
2020). The complaint alleges a violation of section 337 of the Tariff 
Act of 1930, as amended, 19 U.S.C. 1337 (``section 337''), by reason of 
infringement of certain claims of U.S. Patent Nos. 9,908,281 and 
10,562,680. The notice of investigation named the following 
respondents: Eco Food Pak (USA), Inc. of Chino, California (``Eco'') 
and Ningbo Linhua Plastic Co., Ltd. of Fenghua, China (``Ningbo''). The 
Commission's Office of Unfair Import Investigations (``OUII'') also was 
named as a party.
    Eco was terminated from the investigation on October 20, 2020, on 
the basis of a consent order and consent order stipulation. Comm'n 
Notice (Oct. 20, 2020).
    Also on October 20, 2020, the Commission determined not to review 
an initial determination (``ID'') (Order No. 7) granting Complainants' 
unopposed motion to find respondent Ningbo in default. Order No. 7 
(Oct. 6, 2020), unreviewed, Comm'n Notice (Oct. 20, 2020). At that 
time, the Commission requested briefing on the issues of remedy, 
bonding, and the public interest with respect to Ningbo. 85 FR 67566-67 
(Oct. 23, 2020).
    On November 3, 2020, Complainants and OUII filed responses to the 
Commission's request for briefing. Both parties also filed reply 
submissions on November 10, 2020. No other submissions were received.
    Upon review of the record, and in the absence of any response from 
Ningbo or from other interested persons or government agencies, and 
having concluded that it would not be contrary to the public interest 
to do so, the Commission has determined to issue a limited exclusion 
order against Ningbo pursuant to Section 337(g)(1), 19 U.S.C. 
1337(g)(1). However, the Commission declines to issue the requested 
cease and desist order against Ningbo because Complainants have not 
established that Ningbo maintains a commercially significant inventory 
in the U.S. or engages in significant commercial business operations in 
the United States, taking the allegations in the complaint as true, and 
as supported by the available circumstantial evidence. See Certain 
Arrowheads with Deploying Blades and Components Thereof and Packaging 
Therefor, Inv. 337-TA-997, Comm'n Op. at 16, 17-20 (Apr. 28, 2017). 
Exhibits 19 and 20 to the Complaint reflect shipments of ``trays'' to 
terminated Respondent Eco, which has entered into a consent order in 
this investigation, and thus do not suggest ongoing commercial 
operations necessitating a CDO. Even assuming the shipments to non-
parties reflected in Exhibit 19 included infringing products, the 
latest arrival of said shipments occurred in May 2018, and likewise do 
not support the inference that Ningbo or its agents maintain any, much 
less commercially significant, inventory in the U.S. See Compl., Ex. 19 
at 9; cf. Certain Electric Skin Care Devices, Brushes and Chargers 
Therefor, and Kits Containing the Same, Inv. No. 337-TA-959, Comm'n Op. 
at 32 (Feb. 13, 2017) (evidence of ``short lead times between order 
placement and delivery'' and low shipping costs supported the inference 
that ``U.S. purchases of the foreign respondents' infringing products 
were made from U.S. inventories''). The Commission has determined to 
set a bond in the amount of one hundred percent (100%) of the entered 
value of the covered products.
    Commissioner Karpel and Commissioner Schmidtlein would issue both 
an LEO and a CDO directed to defaulting respondent Ningbo pursuant to 
Section 337(g)(1) because all requirements of this provision are met. 
Ningbo was named in the complaint and was served with the complaint and 
notice of investigation. See Order No. 7 (Oct. 6, 2020), unreviewed, 
Comm'n Notice (Oct. 20, 2020). The ALJ issued a show cause order 
ordering Ningbo to show cause why it should not be held in default for 
failing to respond to the

[[Page 12496]]

complaint and notice of investigation. See id. Ningbo did not file a 
response to the show cause order. Id. These findings satisfy 
subsections 337(g)(1)(A)-(D). Complainants requested an LEO and a CDO 
limited to Ningbo thus satisfying subsection 337(g)(1)(E). Given that 
subsections 337(g)(1)(A)-(E) are satisfied and Complainants requested 
these remedies, the statute directs the Commission to issue the 
requested LEO and CDO, subject to consideration of the public interest. 
Commissioner Karpel and Commissioner Schmidtlein find that the public 
interest factors set forth in Section 337(g)(1) do not support a 
finding that these remedies would be contrary to the public interest.
    The investigation is hereby terminated.
    The Commission vote for this determination took place on February 
25, 2021.
    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 Complainants complete service for any party/
parties 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 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: February 25, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-04312 Filed 3-2-21; 8:45 am]
BILLING CODE 7020-02-P


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