Certain Raised Garden Beds and Components Thereof; Notice of a Commission Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and Cease and Desist Order; Termination of Investigation
| Published date | 27 March 2024 |
| Record Number | 2024-06465 |
| Citation | 89 FR 21270 |
| Court | International Trade Commission |
| Section | Notices |
Federal Register, Volume 89 Issue 60 (Wednesday, March 27, 2024)
[Federal Register Volume 89, Number 60 (Wednesday, March 27, 2024)]
[Notices]
[Pages 21270-21271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06465]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1334]
Certain Raised Garden Beds and Components Thereof; Notice of a
Commission Determination Finding a Violation of Section 337; Issuance
of a Limited Exclusion Order and Cease and Desist Order; Termination of
Investigation
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 found a violation of section 337 in the
above-captioned investigation. The Commission has determined to issue a
limited exclusion order (``LEO'') prohibiting the importation into the
United States and the sale of certain raised garden beds and components
thereof by respondents Huizhou Green Giant Technology Co., Ltd.
(``Green Giant'') of Guangdong, China; and Utopban Limited
(``Utopban'') of Hong Kong, China. The Commission has also determined
to issue a cease and desist order (``CDO'') directed to respondent
Utopban. The investigation is hereby terminated.
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
[email protected]. 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,
and the name of one of the respondents was corrected pursuant to an
amendment to the complaint. See 88 FR 2637-38 (Jan. 17, 2023). 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 a final initial determination (``ID'') on September 8, 2023,
finding a violation of section 337 by reason of misappropriation of
trade secrets and unfair competition based on false advertising under
the Lanham Act. Together with the ID, the ALJ also issued a recommended
determination (``RD'') recommending the issuance of an LEO for Green
Giant and Utopban and a CDO for Utopban. The RD further recommended
that a 100% bond be set during the Presidential review period.
On September 12, 2023, the Commission issued a notice requesting
submissions on the public interest. See 88 FR 63617-18 (Sept. 15,
2023). On October 10, 2023, Vego Garden filed a statement on the public
interest. No other public interest submissions were filed.
Respondents Green Giant and Utopban filed a petition for review of
the 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.
On November 7, 2023, the Commission extended the date for
determining whether to review the ID
[[Page 21271]]
from November 9, 2023, to January 9, 2024, and the Commission extended
the target date for completion of this investigation from January 8,
2024, to March 11, 2024. See Comm'n Notice (Nov. 7, 2023).
On January 9, 2024, the Commission issued a notice of its
determination to review the ID in part. See 89 FR 2645-47 (Jan. 16,
2024). Specifically, the Commission 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 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). Id. at 2646. The Commission
determined not to review the ID's determinations with respect to the
Product Materials Research Trade Secret and the false advertising
claim. The Commission also requested additional briefing from the
parties with respect to certain issues under review and requested
submissions from the parties, interested government agencies, and any
other interested parties on the issues of remedy, the public interest,
and bonding. Id. at 2646-47.
On January 23, 2024, Complainant Vego Garden, Respondents Green
Giant and Utopban, and OUII each filed submissions in response to the
Commission's notice. On January 30, 2024, each of the parties filed
reply submissions.
On February 28, 2024, the Commission extended the target date for
completion of this investigation to March 18, 2024. See Comm'n Notice
(Mar. 12, 2024). On March 15, 2024, the Commission extended the target
date for completion of this investigation to March 21, 2024. See Comm'n
Notice (Mar. 15, 2024).
Having examined the record in this investigation, including the ID,
the RD, the petition for review and responses thereto, and the parties'
submissions on review, the Commission has determined to affirm-in-part
and reverse-in-part the ID. Specifically, as explained in the
Commission Opinion issued concurrently herewith, the Commission has
determined to affirm with modifications the ID's determination that the
Commission has statutory authority to investigate the alleged unfair
methods of competition and unfair acts; reverse the ID's determination
that the Product Development Research Trade Secret was misappropriated;
affirm with modifications the ID's determination that the Product
Manufacturing Trade Secret was misappropriated; and affirm with
modifications the ID's determination that the domestic industry
requirement was satisfied. All findings in the ID that are not
inconsistent with the Commission's determination are affirmed and
adopted by the Commission. Accordingly, the Commission finds that there
is a violation of section 337 by Respondents Green Giant and Utopban
with respect to misappropriation of Vego Garden's Product Manufacturing
Trade Secret; and by Utopban with respect to false advertising.
The Commission has determined that the appropriate form of relief
is an LEO and a CDO. The LEO prohibits (1) the unlicensed entry of
raised metal garden beds that are manufactured using Vego Garden's
Product Manufacturing Trade Secret and are manufactured, imported, or
sold by or on behalf of Green Giant and/or Utopban for a duration of
one year; and (2) the unlicensed entry of raised metal garden beds that
are falsely advertised using photographs of Vego Garden's products that
are imported or sold by or on behalf of Utopban. The CDO prohibits (1)
the unlicensed importation, sale, and marketing in the United States by
Utopban of raised metal garden beds that are manufactured using Vego
Garden's Product Manufacturing Trade Secret for a duration of one year;
and (2) the unlicensed importation, sale, and marketing in the United
States by Utopban of raised metal garden beds that are falsely
advertised using photographs of Vego Garden's products.
The Commission has determined that the public interest factors
enumerated in subsections (d)(1) and (f)(1) of section 337 do not
preclude the issuance of the remedial orders. The Commission has
further determined that the bond during the period of Presidential
review pursuant to section 337(j) (19 U.S.C. 1337(j)) shall be set in
the amount of one hundred percent (100%) of the entered value of the
imported articles that are subject to the LEO. The Commission's
remedial orders were delivered to the President and to the United
States Trade Representative on the day of their issuance. The
investigation is hereby terminated.
The Commission vote for this determination took place on March 21,
2024.
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: March 21, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-06465 Filed 3-26-24; 8:45 am]
BILLING CODE 7020-02-P
