[Federal Register Volume 89, Number 10 (Tuesday, January 16, 2024)]
[Notices]
[Pages 2645-2647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00649]


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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.

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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 https://edis.usitc.gov. 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 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: 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, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). 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


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