H339732

HQ H339732 June 11, 2024 OT:RR:BSTC:EOE H339732 JW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. Smith R. Brittingham IV Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 901 New York Avenue, NW Washington, DC 20001-4413 VIA EMAIL: smith.brittingham@finnegan.com; anthony.delmonaco@finnegan.com RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1155; Certain Luxury Vinyl Tile and Components Thereof. Dear Mr. Brittingham: Pursuant to 19 C.F.R. Part 177, the Exclusion Order Enforcement Branch (“EOE Branch”), Regulations and Rulings, U.S. Customs and Border Protection (“CBP”) issues this ruling letter in response to VILOX Sweden AB’s (“VILOX”) request for an administrative ruling (dated September 25, 2023), which included Exhibits 1 to 13 (collectively, “Ruling Request”). We find that VILOX has met its burden to establish that the floor panels manufactured by [[ ]] -- submitted as the physical sample for consideration during this inter partes proceeding, and as described in detail below -- are not subject to the general exclusion order (“GEO”) issued in U.S. International Trade Commission (“Commission” or “ITC”) Investigation No. 337-TA-1155 (“the underlying investigation” or “the 1155 investigation”), pursuant to Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“Section 337”). However, as explained below, the admissibility determination in this ruling only applies to the embodiment of that physical sample as representative of the articles at issue for which VILOX has requested a ruling and submitted evidence to support such a determination and, specifically, the findings regarding the presence of particular features in the floor panels manufactured by [[ ]] that are the basis for the non-infringement determination. We further note that determinations of the Commission resulting from the underlying investigation or a related proceeding under 19 C.F.R. Part 210 are binding authority on CBP and, in the case of conflict, will by operation of law modify or revoke any contrary CBP ruling or decision pertaining to Section 337 exclusion orders. This ruling letter is the result of a request for an administrative ruling from CBP under 19 C.F.R. Part 177 that the EOE Branch conducted on an inter partes basis. The process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, VILOX, the ruling requester; and (2) Mohawk Industries Inc. of Calhoun, Georgia; Flooring Industries Ltd. Sarl of Bertrange, Luxembourg; and IVC US Inc. of Dalton, Georgia (collectively, “Mohawk”), complainants in the 1155 investigation. See e.g., 19 C.F.R. § 177.1(c). The parties were asked to clearly identify confidential information with [[red brackets]] in all of their submissions to CBP. See, e.g., EOE Branch Email to Parties, dated October 6, 2023; see also 19 C.F.R. §§ 177.2 and 177.8. If there is additional information in this ruling letter not currently bracketed in red [[ ]] that either party believes constitutes confidential information and should be redacted from the published ruling, then the parties are asked to contact CBP within ten (10) working days of the date of this ruling letter. See, e.g., 19 C.F.R. § 177.8(a)(3). Please note that disclosure of information related to administrative rulings under 19 C.F.R. Part 177 is governed by, for example, 6 C.F.R. Part 5, 31 C.F.R. Part 1, 19 C.F.R. Part 103, and 19 C.F.R. § 177.8(a)(3). See, e.g., 19 C.F.R. § 177.10(a). In addition, CBP is guided by the laws relating to confidentiality and disclosure, such as the Freedom of Information Act (“FOIA”), as amended (5 U.S.C. § 552), the Trade Secrets Act (18 U.S.C. § 1905), and the Privacy Act of 1974, as amended (5 U.S.C. § 552a). A request for confidential treatment of information submitted in connection with a ruling requested under 19 C.F.R. Part 177 faces a strong presumption in favor of disclosure. See, e.g., 19 C.F.R. § 177.8(a)(3). The person seeking this treatment must overcome that presumption with a request that is appropriately tailored and supported by evidence establishing that: the information in question is customarily kept private or closely-held and either that the government provided an express or implied assurance of confidentiality when the information was shared with the government or there were no express or implied indications at the time the information was submitted that the government would publicly disclose the information. See Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019) (concluding that “[a]t least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of exemption 4.”); see also U.S. Department of Justice, Office of Information Policy (OIP): Step-by-Step Guide for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under Exemption 4 of the FOIA (updated 10/7/2019); and OIP Guidance: Exemption 4 after the Supreme Court’s Ruling in Food Marketing Institute v. Argus Leader Media (updated 10/4/2019). I. BACKGROUND ITC Investigation No. 337-TA-1155 The Commission instituted the 1155 investigation on May 16, 2019, based upon a complaint, as amended, filed on behalf of Mohawk Industries Inc. of Calhoun, Georgia; Flooring Industries Ltd. Sarl of Bertrange, Luxembourg; and IVC US Inc. of Dalton, Georgia. Certain Luxury Vinyl Tile and Components Thereof, Investigation No. 337-TA-1155, EDIS Doc. No. 721148, Commission Opinion (Public) at 2 (October 5, 2020) (“Comm’n Op.”) citing 84 Fed. Reg. 22161 (May 16, 2019). The Commission instituted the investigation to determine: [W]hether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation into the United States, the sale for importation, or sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 7,8,13,15-17, 20-23, and 30 of the ‘460 patent; claims 1-21 of the ‘490 patent; and claims 1-27 of the ‘655 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337. Certain Luxury Vinyl Tile and Components Thereof, Investigation No. 337-TA-1155, EDIS Doc. No. 716630, Initial Determination and Recommended Determination (Public) at 1 (August 7, 2020) (“ID/RD”) citing 84 Fed. Reg. 22161 (May 16, 2019). Further, pursuant to 19 C.F.R. § 210.10(b)(1): [T]he plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “interlocking luxury vinyl tile floor panels and components thereof.” Id. The notice of investigation named forty-five respondents. Comm’n Op. at 2, citing 84 Fed. Reg. 22161 (May 16, 2019). The Office of Unfair Import Investigations (“OUII”) was also a party to the investigation. Id. Thirty-five of the respondents were terminated on the basis of settlement, consent order, or termination by Mohawk. Comm’n Op. at 2 (citations omitted). The other ten respondents were found in default. Id. at 2-3. On January 15, 2020, Mohawk filed a motion, which was supplemented three times, for summary determination that Complainants demonstrated a domestic industry and the defaulting respondents violated Section 337. Id. at 3 (citations omitted). On May 15, 2020, the presiding Administrative Law Judge (“ALJ”) issued an ID/RD (Order No. 36) granting the motion for summary determination. Id. (citation omitted). The ALJ also recommended, inter alia, the issuance of a GEO. Id. (citation omitted). On June 30, 2020, the Commission determined to review the ID in part. Id. On review, inter alia, the Commission affirmed the finding of violation of Section 337 as to the default