Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1213; Certain Light-Emitting Diode Products, Fixtures, and Components Thereof.

HQ H323646 February 25, 2022 OT:RR:BSTC:EOE H323646 JW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. David A. Hickerson Foley & Lardner LLP 3000 K Street, N.W. Suite 600 Washington, D.C. 20007-5109 VIA EMAIL: [email protected]; [email protected] RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1213; Certain Light-Emitting Diode Products, Fixtures, and Components Thereof. Dear Mr. Hickerson: 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 RAB Lighting Inc.’s (“RAB”) request for an administrative ruling dated December 20, 2021, which included Exhibit Nos. 1 to 8 (collectively, “Ruling Request”). RAB requested a ruling that “certain LED lighting devices” are outside the scope of the limited exclusion order (“LEO”) issued in U.S. International Trade Commission (“Commission”) Investigation No. 337-TA-1213 (“the 1213 investigation”), pursuant to section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“section 337”). Ruling Request at 1. In the interest of facilitating legitimate trade, we will address, in this ruling letter, the uncontested articles in the Ruling Request. Specifically, this ruling letter is limited to the articles identified in the Ruling Request as the “New Aerobay Design” and the “New L34 Design.” See e.g., Ruling Request at 17-18, 20.1 We find that, given 1 For the avoidance of doubt, this ruling letter does not apply to the “Old Aerobay Design” and the “Old L34 Design” discussed during this inter partes proceeding but for which RAB did not seek an admissibility determination in its Ruling Request. See e.g., Ruling Request at 16-17, 18-19. Moreover, this ruling letter does not apply to any other articles identified in that Ruling Request. Rather, a separate ruling letter related to the additional articles identified in RAB’s Ruling Request the absence of opposition from Ideal Industries Lighting LLC d/b/a Cree Lighting (“Cree”), as the complainant in the 1213 investigation and other interested party in this inter partes proceeding under 19 C.F.R. Part 177, the “New Aerobay Design” and the “New L34 Design” are not subject to exclusion from entry on the basis of the LEO issued by the Commission in the 1213 investigation unless and until this ruling letter is revoked or modified pursuant to 19 C.F.R. § 177.12.2 This ruling letter is the result of a request for an administrative ruling from CBP under 19 C.F.R. Part 177, which was conducted on an inter partes basis, upon consent of the parties. See, e.g., EOE Branch email to Parties dated December 28, 2021. The process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, RAB, the ruling requester and respondent in the 1213 investigation; and (2) Cree, complainant in the 1213 investigation. See, e.g., 19 C.F.R. § 177.1(c). In the Ruling Request, RAB asserted that the “New Aerobay Design” and the “New L34 Design” do not infringe any of the asserted claims of the ‘270 patent or the ‘570 patent. See e.g., Ruling Request at 17-18, 20. Pictures from the Ruling Request of the “New Aerobay Design” and the “New L34 Design” are reproduced below,3 respectively: The New Aerobay Design Ruling Request at 18 (citing Exhibit 8 of Ruling Request at 19-20). will follow in accordance with the schedule identified in the EOE Branch’s email to the parties, dated January 19, 2022. 2 We note that determinations of the Commission resulting from the underlying investigation and 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. 3 RAB further noted that none of these designs have a lens. Ruling Request at 20. The New L34 Design Ruling Request at 20 (citing Exhibit 8 of Ruling Request at 25-27). Cree in its response dated January 26, 2022, indicated that for the “designs that RAB refers to as the ‘New Aerobay Design’ and the ‘New L34 Design’ . . . [a]lthough Cree Lighting disagrees that the ‘mylar tape’ . . . eliminates the gap in those products, Cree Lighting does not contest RAB’s Request as to those products for other reasons.” Cree Response at 9-10; see also Cree Sur Reply dated February 9, 2022 (“Cree Lighting does not oppose RAB’s request as to the new Aerobay design or the new L34 design.”). Cree further noted that “[b]ased on RAB’s representations that none of its products use lenses that infringe the ‘570 patent, Cree Lighting does not contest that aspect of RAB’s request.” Cree Response at 10. In light of Cree’s response indicating that it does not contest that the “New Aerobay Design” and the “New L34 Design” are not subject to the LEO issued in the 1213 investigation,4 we find that these products are not subject to exclusion from entry and, for purposes of section 337, may be entered for consumption. This decision is limited to the specific facts set forth herein. If articles differ in any material way from the “New Aerobay Design” and the “New L34 Design” described above, or if future importations vary from the facts stipulated to herein, this decision shall not be binding on CBP as provided for in 19 C.F.R. §§ 177.2(b)(1), (2), (4), and 177.9(b)(1) and (2). Finally, the parties have not designated any information as confidential in their submissions to CBP related to this request for an administrative ruling. Nevertheless, if there is information in this ruling letter not currently bracketed in red [[ ]], including information subject to the administrative protective order in the underlying investigation, 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. § 177.2 and 19 C.F.R. § 177.8(a)(3). 4 In contrast, Cree stated that it “opposes the request as to the original [or ‘old’] Aerobay and L34 designs.” Cree Sur Reply dated February 9, 2022, at 14. Thus, as we noted supra, a separate ruling letter related to the other articles identified in RAB’s Ruling Request, for which it has sought an admissibility determination, will follow in accordance with the schedule identified in the EOE Branch’s email to the parties dated January 19, 2022.  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, e.g., U.S. Department of Justice, Office of Information Policy: 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). Sincerely, Dax Terrill Chief, Exclusion Order Enforcement Branch CC: Mr. Nathan Hamstra Quinn Emanuel 191 N. Wacker Drive, Suite 2700 Chicago, IL 60606-1881 [email protected]; [email protected]