E8-14439. In the Matter of Certain Intermediate Bulk Containers; Notice of Decision Not To Review an Initial Determination Finding the Sole Remaining Respondent in Default; Request for Written Submissions on Remedy, the Public Interest, and Bonding

AGENCY:

U.S. International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 6) issued by the presiding administrative law judge (“ALJ”) finding the last remaining respondent in this investigation in default. Accordingly, the Commission requests written submissions, under the schedule set forth below, on remedy, public interest, and bonding.

FOR FURTHER INFORMATION CONTACT:

Mark B. Rees, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone [phone]. 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 [phone]. General information concerning the Commission may also be obtained by accessing its Internet server at 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 [phone].

SUPPLEMENTARY INFORMATION:

The Commission instituted this investigation on March 10, 2008, based on a complaint filed by Schütz Container Systems Inc. of North Branch, New Jersey and Protechna, S.A. of Switzerland (collectively, “Schütz”), alleging violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain intermediate bulk containers by reason of infringement of certain claims of United States Patent Nos. 4,909,387; 5,253,777; and 5,673,630. 73 FR 13919 (March 14, 2008). The complaint named Shanghai Kingtainer Packaging Container Co., Ltd. of China (“Kingtainer”) and Novus International, Inc. of St. Louis, Missouri (“Novus”) as respondents.

On April 2, 2008, Schütz and Novus jointly moved to terminate the investigation with respect to Novus based on a settlement agreement between them, which motion was allowed in an unreviewed ID.

On April 18, 2008, Schütz moved, pursuant to Commission Rule 210.16(b), for an order to show cause why Kingtainer should not be found in default and, upon failure to show cause, for the issuance of an ID finding Kingtainer in default. On May 2, 2008, the ALJ ordered Kingtainer to show cause, no later than the close of business on May 16, 2008, why it should not be found in default for failure to respond to the Complaint and Notice of Investigation (Order No. 4). No response to Order No. 4 was filed.

On May 22, 2008, the ALJ issued the subject ID (Order No. 6) finding Kingtainer in default under Commission Rule 210.16(c). No petitions for review of this ID were filed. The Commission has determined not to review the ALJ's ID.

Kingtainer is the last remaining respondent in this investigation, the investigation having been terminated with respect to the only other respondent based on a settlement agreement.

Section 337(g)(1) and Commission Rule 210.16(c) authorize the Commission to order relief against a respondent found in default unless, after consideration of the public-interest factors, it finds that such relief should not issue. Schütz did not file a declaration stating that it was seeking a general exclusion order as provided in Commission Rule 210.16(c).

In conjunction with the final disposition of this investigation, therefore, the Commission may: (1) Issue an order that could result in the exclusion of articles manufactured or imported by the defaulting respondent; and/or (2) issue a cease and desist order that could result in the defaulting respondent 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 In the Matter of Certain Devices for Connecting Computers via Telephone Lines, Inv. No. 337-TA-360, USITC Pub. 2843 (Dec. 1994) (Comm'n Op.).

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 U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action. 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, interested government agencies, and any other interested parties are encouraged to file written submissions on the issues of remedy, the public interest, and bonding. Complainant and the Commission investigative attorney are also requested to submit proposed remedial orders for the Commission's consideration. Complainant is further requested to state the dates that the asserted patents expire and the HTSUS numbers under which the accused products are imported. Main written submissions and proposed remedial orders must be filed no later than the close of business on July 11, 2008. Reply submissions must be filed no later than the close of business on July 18, 2008. 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 with the Office of the Secretary on or before the aforementioned deadlines. Any person desiring to submit a document 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 19 CFR 210.6. Documents for which confidential treatment by the Commission is sought will be treated accordingly. All nonconfidential 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 and 210.42-46 of the Commission's Rules of Practice and Procedure (19 CFR 210.16, 210.42-46).

By order of the Commission.

Issued: June 20, 2008.

Marilyn R. Abbott,

Secretary to the Commission.