Certain Lithium Ion Batteries, Battery Cells, Battery Modules, Battery Packs, Components Thereof, and Processes Therefor; Commission Decision Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation

Topics:  Kia

Lisa Barton
International Trade Commission
17 February 2021

[Federal Register Volume 86, Number 30 (Wednesday, February 17, 2021)]
[Notices]
[Pages 9952-9953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-03109]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1159]


Certain Lithium Ion Batteries, Battery Cells, Battery Modules, 
Battery Packs, Components Thereof, and Processes Therefor; Commission 
Decision Finding a Violation of Section 337; Issuance of a Limited 
Exclusion Order and Cease and Desist Orders; Termination of the 
Investigation

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to affirm the presiding administrative law 
judge's (``ALJ's'') initial determination (``ID'') (Order No. 34) 
finding a violation of section 337 of the Tariff Act of 1930, as 
amended, in this investigation and has issued a limited exclusion order 
and cease and desist orders prohibiting importation of certain lithium 
ion batteries, battery cells, battery modules, battery packs, and 
components thereof. The investigation is hereby terminated.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street 
SW, Washington, DC 20436, telephone (202) 708-2532. 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 
EDIS3Help@usitc.gov. General information concerning the Commission may 
also be obtained by accessing its internet server at http://www.usitc.gov. Hearing-impaired persons are advised that information on 
this matter can be obtained by contacting the Commission's TDD 
terminal, telephone (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on June 4, 2019, based on a complaint filed on behalf of LG Chem, Ltd. 
of Seoul, Republic of Korea and LG Chem Michigan, Inc. of Holland, 
Michigan. 84 FR 25858 (June 4, 2019). As discussed further below, the 
complainants, as of the date of this Notice, are LG Chem, Ltd. of 
Seoul, Republic of Korea, LG Energy Solution, Ltd. of Seoul, Republic 
of Korea, and LG Energy Solution Michigan, Inc. (collectively, 
``complainants'' or ``LG''). The complaint, as supplemented, alleges 
violations of Section 337 of the Tariff Act of 1930, as amended, 19 
U.S.C. 1337, in the importation and sale of certain lithium ion 
batteries, battery cells, battery modules, battery packs, components 
thereof, and processes therefor by reason of misappropriation of trade 
secrets, the threat or effect of which is to destroy or substantially 
injure an industry in the United States, under subsection (a)(1)(A) of 
Section 337. The complaint, as supplemented, names SK Innovation Co., 
Ltd. of Seoul, Republic of Korea and SK Battery America, Inc. of 
Atlanta, Georgia as the respondents (collectively, ``respondents'' or 
``SK''). The Office of Unfair Import Investigations (``OUII'') was also 
named as a party in this investigation.
    On November 5, 2019, LG moved for an order entering default 
judgment against the respondents due to contempt of Order No. 13, which 
granted in part complainants' motion to compel forensic examination of 
respondents' computer system due to alleged spoliation of evidence. 
Respondents opposed the motion and OUII supported the motion.
    On February 14, 2020, the ALJ issued the subject ID (Order No. 34) 
finding that the respondents spoliated evidence, and that the 
appropriate remedy is to find the respondents in default. The ID noted 
that complainants do not seek a general exclusion order, and therefore 
no issues remain to be litigated, and terminated the investigation. ID 
at 131.
    On March 3, 2020, SK filed a petition for Commission review of the 
ID. On March 11, 2020, LG and OUII filed oppositions thereto.
    On April 17, 2020, the Commission determined to review the ID in 
its entirety. 85 FR 22,753 (Apr. 23, 2020) (``Notice of Review''). The 
Notice of Review requested the parties to brief certain issues under 
review. The Notice of Review also sought briefing from the parties, 
interested government agencies, and any other interested parties on 
remedy, the public interest, and bonding.
    On May 1, 2020, the parties filed their opening briefs on the 
issues under review, and on remedy, the public interest and bonding. SK 
also filed a short submission seeking a hearing before the Commission 
on remedy, the public interest, and bonding. See 19 CFR 210.50(a)(v). 
The Commission also received a number of comments from non-parties on 
remedy and the public interest. On May 12, 2020, the parties filed 
reply briefs on the issues under review, and on remedy, the public 
interest and bonding. Certain non-parties also submitted reply comments 
on remedy and the public interest.
    On June 26, 2020, LG filed a motion for leave to file a 
supplemental submission on remedy, the public interest, and bonding. On 
July 8, 2020, SK opposed the motion. On July 13, 2020, SK filed a 
notice of new developments related to issues raised in the remedy, 
public interest, and bonding briefing. On July 28, 2020, SK moved for 
leave to file a reply in support of its notice. On September 1, 2020, 
LG filed a notice of supplemental facts. On November 25, 2020, SK filed 
a motion for leave to file a supplemental submission in connection with 
remedy and the public interest. The Commission has determined to grant 
the motions for leave and to make all of the foregoing submissions and 
responses thereto part of the administrative record. On December 1, 
2020, Complainants filed a motion to amend the complaint and NOI to 
reflect a reorganization of LG Chem, Ltd. in which (i) certain business 
functions were transferred to a newly created subsidiary named LG 
Energy Solution, Ltd., and (ii) LG Chem Michigan, Inc. was renamed LG 
Energy Solution Michigan, Inc. (EDIS Doc. ID 726833). The Commission 
has determined to grant that motion, has added LG Energy Solution, Ltd. 
as a complainant, and has changed the name of LG Chem Michigan Inc. to 
LG Energy Solution Michigan, Inc.
    The Commission has determined not to conduct a hearing pursuant to 
19 CFR 210.50. The Commission finds that the parties and non-parties 
have failed to demonstrate why a hearing would be warranted. The 
Commission has been mindful of the public interest submissions in 
fashioning an appropriate remedy.
    Having reviewed the record of the investigation, including the 
parties' submissions to the ALJ, Order No. 34, and the parties' and 
non-parties' submissions to the Commission, the Commission has 
determined to affirm the ID's finding of default, with modified 
reasoning clarifying the distinct bases for sanctions under (i) 19 
U.S.C. 1337(h) and Commission Rule 210.33, 19 CFR 210.33 and (ii) 
inherent authority under Micron Technology, Inc. v. Rambus Inc., 645 
F.3d 1311 (Fed. Cir. 2011). The Commission finds that both bases apply 
here. The Commission thereby affirms the ID's finding of violation of 
section 337.
    The Commission has further determined that the appropriate remedy 
is: (1) A limited exclusion order prohibiting the entry of certain 
lithium ion batteries, battery cells, battery

[[Page 9953]]

modules, battery packs, and components thereof; and (2) cease and 
desist orders directed to respondents. The remedial orders will expire 
ten years from their issuance, and cover the trade secrets that LG 
elected on January 22, 2020. The Commission has determined that, 
although the public interest factors enumerated in section 337(d) and 
(f), 19 U.S.C. 1337(d), (f), do not preclude the issuance of the 
limited exclusion order or the cease and desist orders, tailoring of 
its orders is appropriate in view of the public interest considerations 
discussed in the Commission's opinion. The orders permit SK to import 
components for domestic production of lithium ion batteries, battery 
cells, battery modules, and battery packs for Ford Motor Co.'s EV F-150 
program for four years, and for Volkswagen of America, Inc.'s America's 
MEB line for the North America Region for two years to permit these 
third parties to transition to new domestic suppliers for these 
programs. The orders also permit SK to import articles for repair and 
replacement of EV batteries for Kia vehicles that had been sold to U.S. 
customers as of the date of the orders and were originally equipped 
with SK batteries. The investigation is terminated.
    The Commission's reasons for its determinations are set forth more 
fully in the Commission's opinion.
    The Commission's orders and opinion were delivered to the President 
and the United States Trade Representative on the day of their 
issuance.
    The Commission vote for these determinations took place on February 
10, 2021.
    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: February 10, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-03109 Filed 2-16-21; 8:45 am]
BILLING CODE 7020-02-P