02-18198. In the Matter of Certain Plastic Molding Machines with Control Systems Having Programmable Operator Interfaces Incorporating General Purpose Computers, and Components Thereof, II; Notice of Commission Decision To Review and Reverse an ...

AGENCY:

International Trade Commission.

ACTION:

Notice.

SUMMARY:

Notice is hereby given that the U.S. International Trade Commission has determined to review and reverse the presiding administrative law judge's (“ALJ's”) initial determination (“ID”)(Order No. 30) terminating the above-captioned investigation. The Commission has also determined to review ALJ Order No. 29 on its own motion, and to hold in abeyance the petitions for review of Order No. 29 that were filed in this investigation.

FOR FURTHER INFORMATION CONTACT:

Jean Jackson, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone [phone]. Copies of the ALJ's ID and all other nonconfidential 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 (http://www.usitc.gov). The public record for this investigation may be viewed on the Commission's electronic docket (EDIS-ON-LINE) at http://dockets.usitc.gov/​eol/​public. 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 the above-referenced investigation on August 23, 2001, based on a complaint filed by Milacron, Inc. (Milacron) of Cincinnati, OH, against eleven respondents. 66 FR 44374 (2001). The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337) in the importation into the United States, sale for importation, and sale within the United States after importation of certain plastic molding machines with control systems having programmable operator interfaces incorporating general purpose computers, and components thereof, by reason of infringement of claims 1-4 and 9-13 of U.S. Patent No. 5,062,052. All named respondents have been terminated from the investigation on the basis of settlement agreements.

On April 18, 2002, Milacron filed a motion to amend the procedural schedule so that it would have an opportunity to file a motion for summary determination of violation of section 337 and to request a general exclusion order. On April 19, 2002, the Commission investigative attorney (IA) filed a response in support of Milacron's motion to amend the procedural schedule. On April 24, 2002, the ALJ issued Order No. 27, granting Milacron's request to amend the procedural schedule in the investigation to allow Milacron the opportunity to file a motion for summary determination of violation and to seek a general exclusion order under Commission Rule 210.16(c)(2). On May 17, 2002, complainant filed its motion for summary determination and request for a recommendation supporting a general exclusion order. The IA supported the motion and request.

On June 11, 2002, the ALJ issued Order No. 29 which held that Milacron could not seek summary determination of violation and was not entitled to a recommended determination supporting a general exclusion order because of practical and Constitutional concerns in making an unopposed determination of violation of section 337. On June 18, 2002, the ALJ issued a one-paragraph ID (Order No. 30) terminating the investigation. On June 24 and June 25, 2002, respectively, Milacron and the IA petitioned for review of the ID and appealed Order No. 29.

Having examined the ALJ Order Nos. 29 and 30, and the petitions for review, the Commission has determined to review and reverse ALJ Order No. 30, which terminated the investigation. The Commission has also determined to review, on its own motion, the determination contained in ALJ Order No. 29 that the Commission has the statutory authority to issue a general exclusion order in an investigation in which all respondents have settled with complainant. Finally, the Commission has decided to hold in abeyance the petitions for review that were filed by Milacron and the IA pending its decision on the issue that it has determined to review.

Written Submissions

In order to complete its review, the Commission requests briefing from the parties on the issue under review. Briefs should address the statutory language of section 337(g)(2), 19 U.S.C. 1337(g)(2), and the legislative history of the provision. Briefs should also include a discussion of Commission rules 210.16(c)(1) and (2), 19 CFR 210.16(c)(1) and (2), as well as a discussion of the Commission's commentaries issued in connection with the promulgation of these rules. The commentaries are found in 53 FR 330432 et seq. (August 29, 1988); 57 FR 52830 et seq. (November 5, 1992); 59 FR 39020 et seq. (August 1, 1994). In addition, the briefs should address whether the Commission has the authority to issue a general exclusion order under section 337(d)(2), 19 U.S.C. 1337(d)(2), in an investigation in which all named respondents have settled with complainant. In this regard, the parties should address in particular the basis upon which a finding of violation of section 337 could be made in accordance with the Administrative Procedures Act in an investigation in which all respondents have settled and what showing the complainant needs to make in order to establish a finding of violation. Finally, the parties should address any policy implications that might be raised by a finding of violation of section 337 based on record evidence that relates solely to respondents that have settled with complainant and as to which the investigation has been terminated. Main briefs are due on August 1, 2002. Reply briefs, if any, are due on August 10, 2002.

Written submissions (the original document and 14 true copies thereof) must be filed with the Office of the Secretary on or before the deadlines stated above. 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 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 210.24, 210.43(d), 210.44, and 210.45 of the Commission's Rules of Practice and Procedure (19 CFR 210.24, 210.43(d), 210.44, and 210.45).

Issued: July 15, 2002.

By order of the Commission.

Marilyn R. Abbott,

Secretary to the Commission.