United States: Tailoring Of Remedial Orders In View Of The Public Interest

I. INTRODUCTION

Per 19 U.S.C. § 1337 ("Section 337"), the International Trade Commission ("Commission") can exclude articles that violate the section from importation into the United States, unless effects on the public interest factors justify not excluding the articles. These factors are (1) the public health and welfare, (2) the competitive conditions in the U.S. economy, (3) the production of like or directly competitive articles in the United States, and (4) U.S. consumers.¹

The Commission did not consider these public interest effects until the Trade Act of 1974.² When introduced, a Senate report indicated the public interest "must be paramount in the administration of this statute," which means the factors "must be the overriding considerations" when issuing a remedy.³ Although the public interest factors are in the statute, they are not always critical to the Commission's remedy determination. Therefore, when the Commission does analyze the public interest factors, it is an opportunity to understand how the Commission defines a negative public interest effect and how the parties' evidence contributed to that determination.

The Commission's decision in Certain Lithium Ion Batteries, Battery Cells, Battery Modules, Battery Packs, Components Thereof, and Processes Therefor ("Batteries") is an illustration of how the Commission has applied the statutory public interest factors to tailor the scope of remedial orders.⁴ In the Batteries investigation, complainants LG Chem, Ltd. and LG Chem Michigan, Inc. ("LG") accused the respondents SK Innovation Co., Ltd., and SK Battery America, Inc. ("SK") of misappropriating trade secrets. The Commission found SK in default for failure to comply with an administrative law judge's ("Judge") order after it was discovered that SK had engaged in spoliation of evidence. The Commission issued a 10-year limited exclusion order and cease-and-desist order, preventing SK from importing batteries containing misappropriated intellectual property.⁵

Considering the public interest factors, the Commission tailored the remedy for SK's non-party customers, Ford and Volkswagen ("VW"). These automobile manufacturers were using SK's batteries to develop fully electric vehicles ("EVs"). To give them enough time to find a substitute before the remedy took full effect, Ford and VW were allowed to import SK's batteries for certain EVs for four and two years, respectively. Additionally, U.S. consumers with a Kia Niro EV or a Kia Soul EV were exempted from the remedy because those vehicles contained SK's batteries.⁶

The public interest factors were critical here because the batteries involved were used in electric vehicles, a growing American and worldwide industry. LG and SK made and received significant investments to produce these batteries in America for domestic automobile manufacturers. LG received a $151 million federal grant from the U.S. Department of Energy to help cover about half the costs required to build its Holland, Michigan, battery plant.⁷ Michigan and its local authorities provided LG with a $100 million tax credit and a $25 million job creation tax credit. ⁸ LG's Michigan plant was also specially designated as a Renaissance Zone, eliminating its state and local taxes for 12 years. ⁹ LG also invested in an estimated $2.3billion joint venture to manufacture batteries with General Motors ("GM") in a new Ohio plant.¹⁰ SK invested $1.67 billion into its new Georgia manufacturing plant and planned to increase that investment to $2.58 billion.¹¹ The parties and the public commenters were concerned disruption to these investments or the domestic battery supplies could impact downstream automobile manufacturing and jobs. Consequently, the public interest factors were highly disputed.

The discussion below examines how the Commission has tailored remedies in the past, how the Commission reached its decision in the Batteries investigation, the President's role in the remedy process and his impact in similar future cases, and how the Commission's public interest analysis scope can be expanded.

II. DISCUSSION

A. Historical Use of Public Interest Factors

Since their enactment, the role of the public interest factors has evolved. There have only been three investigations where the Commission denied relief entirely due to negative effects on the public interest, and the Commission has not done so since 1984.¹² Instead, the Commission has tailored remedies to mitigate adverse impacts to the public interest. Tailoring results in carve-outs, time, or situation-specific exemptions from the Commission's remedy. The aim is to minimize disruptions to the public interest resulting from the remedy.

Four investigations demonstrate how tailoring has been done by the Commission. First, in Investigation 337-TA-543,¹³ the Commission exempted previously imported models from an exclusion order. This investigation involved baseband processor chips used in devices on 3G cellular telephone networks. Given the national importance of 3G cellular telephone networks, the Commission tailored the remedy. Public comments from the Federal Emergency Management Agency and the Federal Communications Commission supported its determination.¹⁴

Second, in Investigation 337-TA-710,¹⁵ the Commission tailored a remedy for "certain personal data and mobile communication devices and related software" by delaying an import ban for four to six months. U.S. consumers who had the infringing devices with warranty contracts were also exempt and could receive replacements. The time carve-out was allowed because the devices provided high-speed coverage, which was considered part of the nation's vital infrastructure. Additionally, the Commission found that without an available substitute, the public interest would be impacted.¹⁶

Third, in Investigation 337-TA-1068,¹⁷ the Commission tailored a remedy for certain microfluidic devices by allowing researchers who had been using the device with a documented need to continue receiving them. The devices were being used for cancer immunotherapy and research, immunology research, and autoimmune diseases.¹⁸ Without the devices, scientific research would be interrupted, which may have created uncertain conclusions, delaying critical treatments for patients.¹⁹

Finally, in Investigation 337-TA-1067,²⁰ the Commission tailored a remedy for certain road milling machines by including a service and repair exemption.²¹ Because the infringing products were already sold to U.S. consumers with a warranty, the Commission granted a limited service and repair exception to mitigate the impact on U.S. consumers.²²

These investigations demonstrate that the Commission makes narrow tailoring decisions when it has evidence that harm to the public interest is likely to result. Accordingly, the tailored time delay and exemption of Kia models in the Batteries investigation are consistent with previous decisions. The Batteries investigation helps explain what evidence the Commission finds determinative when analyzing the public interest factors.

B. The BatteriesInvestigation

1. Factual Background

This investigation was initiated after complainants LG accused SK of misappropriating trade secrets to sell and import "certain lithium ion batteries, battery cells, battery modules, battery packs, components thereof, and process therefor" in violation of Section 337.²³ SK engaged in massive spoliation of evidence, which took place before and after SK knew of the investigation.²⁴ The Commission found SK's spoliation to be "extraordinary."²⁵ For example, SK produced 75 lists of documents it set for destruction.²⁶ Because SK failed to comply with the Judge's order requiring SK to produce all forensic discovery related to the destroyed documents, the Judge found SK in default. The Commission affirmed the decision under section 337(h).²⁷

The public interest factors were the focus of the Commission's remedy decision because the batteries in question were used by major U.S. automobile manufacturers to create new lines of EVs. In addition to considering LG and SK's briefs, the Commission investigative staff ("Staff") submitted briefs as a named party.²⁸

LG argued a limited exclusion order and a cease-and-desist order were appropriate remedies, especially given SK's conduct.²⁹ Michigan state representatives and Ohio senators supported LG with public comments.³⁰ The Governor of Ohio, Mike DeWine, argued protecting intellectual property rights was in the public interest.³¹

SK argued that the public interest factors justified the Commission denying a remedy.³² SK was building a new battery manufacturing plant in Commerce, Georgia, to supply its customers, Ford and VW. Ford, companies within Ford's supply chain, VW, contractors for SK's plant, Georgia organizations, the House delegation from Georgia, and senators from Tennessee (location of VW's U.S. manufacturing plant) all submitted comments in support of SK.³³ While none of these commenters defended the violation of intellectual property rights or the spoliation of evidence, they focused on the impact an exclusion order would have on the American EV industry, jobs, and communities.³⁴

The Staff initially argued that a limited exclusion order and a cease-and-desist order were appropriate remedies.³⁵ Later, the Staff revised its position and argued the remedy should be tailored to mitigate against the potential adverse impacts to the public interest identified by SK and the public comments. The Staff felt it had insufficient evidence to make a determination; therefore, it recommended the investigation be delegated to a Judge to collect more evidence.³⁶

SK, Ford, and VW requested a hearing on the public interest, but the Commission denied the request. The Commission felt the parties did not explain what information it had not presented or the benefit of a hearing. The Commission felt all parties had an opportunity to be heard, considering the number of public comments submitted.³⁷

2. The Commission's Public Interest Analysis

In general, the Commission's analysis of the public interest factors depended on the availability and reasonableness of substitutes for the challenged product. The evidence presented on each public interest factor and the Commission's conclusions follows.

a. Competitive Conditions in the U.S. Market

The Commission found a "key competitive factor" is the unavailability of a reasonable, short-term substitute.³⁸ The Commission was concerned with disrupting Ford and VW's ability to secure a domestic EV battery source, which could risk U.S. jobs.³⁹ Because neither Ford nor VW had a reasonable, short-term substitute, the Commission tailored the relief to provide Ford and VW time to find an alternative U.S. battery source.⁴⁰ Ford and VW argued SK's batteries should not be excluded at all because it would negatively impact the EV industry and their EV programs.

First, they argued that domestically made EV batteries, which rely on imported SK components, are necessary to keep up with the growing demand for EV batteries, especially since the United States-Mexico-Canada Trade Agreement ("USMCA") incentivizes automakers to source 75% of their parts from North America. Additionally, without a strong domestic EV battery supply, the United States' ability to compete globally in the EV market could be affected. Ford explained the United States already lags Europe and China. A decrease in EV supply could increase prices, harming U.S. automobile dealers and EV purchasers.⁴¹ In contrast, LG asserted the growing domestic EV battery industry could compensate for losses due to SK's exclusion. ⁴²

Second, without SK's batteries, Ford would be unable to launch the fully electric Ford F-150 pickup on time because it asserted there was no reasonable substitute. This would also affect VW's EV programs. Ford noted 300 jobs in Michigan could be at risk with an exclusion order. VW estimated 1,000 jobs were at risk in its Tennessee EV plant. SK believed there would be over 2,500 jobs in its new Georgia manufacturing plant. Without these jobs, VW argued there would be a decrease in U.S. employment and training opportunities.⁴³ At the time, LG employed 837 people in its Holland, Michigan, facility.⁴⁴

The Commission acknowledged manufacturers' and commenters' desire to enhance the United States' overall position in the global EV battery market and concern about loss of investments and job opportunities.⁴⁵ But the Commission found there was a lack of evidence to conclude that an exclusion order would negatively impact Ford's F-150 and VW's EV programs. It emphasized, "the Commission must not countenance SK's rampant trade secret misappropriation."⁴⁶ This likely explains why the Commission did not deny a remedy entirely and only carved out an extended time for Ford and VW to find substitutes. Ford was given four years for the F-150 program because it indicated that was the time required to integrate a new EV battery into the vehicle design.⁴⁷ VW's two-year carve-out allowed it time to find substitute EV batteries for its new Modular Electric Drive Matrix platform.⁴⁸

Ford requested to extend its exemption to include its unannounced EVs.⁴⁹ This was denied because the Commission found "no evidence has been placed on the record showing specific harms to the roll out of such other vehicles."⁵⁰ The lack of detail (for example, no evidence of contractual relationships with SK for these other vehicles) prevented the Commission from exempting other Ford vehicles from the exclusion order.⁵¹

b. Production of like or directly competitive articles in the UnitedStates

The Commission found no evidence an exclusion order would negatively impact the production of like or directly competitive EV batteries in the United States.⁵² It acknowledged other U.S. battery suppliers would likely be unable to substitute SK's battery supply to Ford and VW because "they are largely captive to particular OEMs' [original equipment manufacturers] programs."⁵³ However, the other U.S. EV battery suppliers would not be disrupted or affected by an exclusion order; therefore, this factor provided no limitation on the remedy.⁵⁴

Both LG and SK agreed there were other U.S. EV battery suppliers, but they disagreed on their capabilities. The current U.S. battery suppliers included LG, Tesla and Panasonic, Toyota and Panasonic, Samsung SDI, Envision AESC, Daimler, and BMW.⁵⁵ LG argued the current domestic supply is growing and capable of compensating for the exclusion of SK's batteries. SK maintained the U.S. EV battery supply is constrained. SK argued these battery suppliers cannot supply their batteries to Ford and VW because they cater to other specific original equipment manufacturers. Those battery suppliers use their capacity to supply other automobile manufacturers and would be unable to provide for SK's customers too.⁵⁶

The Commission found SK's arguments supported its analysis of competitive conditions in the United States and further justified its tailored remedy. Because these other EV battery suppliers cannot support Ford and VW, there is no reasonable, short-term substitute for SK's batteries. Thus, the tailored relief incorporates the transition time necessary for other domestic U.S. battery suppliers to increase their capacity and technological capabilities to supply Ford and VW.⁵⁷

c. The Public Health and Welfare

The Commission concluded that the environmental benefits of EVs, which consequently aid in combatting climate change and reducing automobile emission-related negative health and welfare impacts, were relevant when evaluating this statutory factor.⁵⁸ SK argued it is within the public's interest to have EV batteries and EVs because of the environmental benefits; therefore, they should not be excluded from the U.S. market.⁵⁹ These benefits include reducing harmful emissions and pollution.⁶⁰ VW noted the public interest in EVs for "energy conservation and environmental perseveration."⁶¹ Ford commented on public concerns relating to "dependence on non-U.S. sources of oil."⁶² Finally, Ford indicated the health benefits associated with EVs due to decreased emissions.⁶³

LG disagreed with this analysis, arguing the EV batteries at issue did not concern the public health. Further, if there were public welfare impacts because of an exclusion order, they would be supply and demand issues, not public health issues.⁶⁴

SK also analogized this circumstance to Crankpin Grinders.⁶⁵ There, the Commission denied a remedy in consideration of the public health and welfare because automobile manufacturers would be unable to meet fuel efficiency standards without crankpin grinders.⁶⁶ Ford noted the pressure to switch to EVs to increase fuel efficiency.⁶⁷ In response, LG noted there are currently other ways to increase fuel efficiency besides EV batteries.⁶⁸ However, the Commission concluded Crankpin Grinders only demonstrates that the Commission considers negative impacts to energy conservation to be relevant when evaluating the public health and welfare.⁶⁹

Separately, Commissioner Schmidtlein agreed EVs are "key asset[s]" with environmental benefits, both in enhancing fuel efficiency and reducing emissions to mitigate negative health impacts.⁷⁰ However, she found no evidence on the record to evaluate the impact excluding SK's EV batteries for Ford's F-150 and VW's programs would have on the environment. ⁷¹ The public comments were insufficient because they lacked concrete evidence connecting the proposed exclusion order to negative environmental effects. ⁷² She explained, "carving an exception to remedial relief for an established violation of intellectual property rights should require more than general assertions even when the goods at issue are energy efficient products."⁷³

d. U.S. Consumers

The Commission lumped the effect on U.S. consumers into its Ford and VW competitive conditions analysis, explaining Ford and VW are the consumers of SK's batteries.⁷⁴ The Commission concluded the concerns established above would be the same for U.S. consumers.

There was a specific carve-out for U.S. consumers who purchased a Kia Niro EV or a Kia Soul EV. Those vehicles use SK's batteries. For their vehicle and personal safety, SK could provide replacement batteries for consumers who previously purchased such vehicles.⁷⁵

C. The Presidential Review Process

After the Commission makes its determination, the President can disapprove it "for policy reasons."⁷⁶ The President has 60 days to approve or take no action, enabling the determination to take effect.⁷⁷ He can also veto it, rendering the determination without force.⁷⁸ This authority has been delegated to the U.S. Trade Representative ("USTR"). Although presidential intervention is rare, when the President does intervene, he does not need to connect his veto to the four statutory public interest factors because "policy reasons" are broadly defined.

In the most recent presidential disapproval, which occurred in 2013, the USTR did link its policy reasons for disapproval to the statutory public interest factors. The investigation involved "standards-essential patents subject to voluntary FRAND (fair, reasonable, and non-discriminatory) commitments."⁷⁹ The USTR cited a Department of Justice ("DOJ") and United States Patent and Trademark Office ("USPTO") policy statement, which outlined the factors the Commission should consider when determining whether exclusionary relief was appropriate for such investigations. The USTR found these policy considerations did affect the investigation's statutory public interest factors, specifically the competitive conditions in the U.S. economy and the U.S. consumers. Therefore, it disapproved of the Commission's determination.⁸⁰

There was no presidential disapproval in the Batteries investigation (the investigation ended in a settlement one day before the presidential disapproval deadline). However, President Biden did support the settlement as "a win for the American workers and the American auto industry." ⁸¹ In his statement, President Biden focused on two primary policy benefits of the settlement. First, EVs and batteries built in America would strengthen the American auto industry and ensure America "win[s] the electric vehicle markets of the future." ⁸² Second, this industry promotes job creation.⁸³

The USTR, Katherine Tai, helped the parties reach the settlement.⁸⁴ Without a settlement, it is unknown whether Presidential Review would have resulted in disapproval. President Biden's statement of support seems to align with public comments that expressed concern regarding jobs and America's overall position in the global EV and battery market. Additionally, on February 24, 2021, President Biden issued an Executive Order on America's Supply Chains.⁸⁵ This established a policy "to strengthen the resilience of America's supply chains."⁸⁶ Strengthening means supporting domestic manufacturing, job creation, and innovation. In Section 3 of this executive order, various supply chains, including EV Battery, are identified to be evaluated for risks.⁸⁷ Additionally, President Biden links this initiative to the American Jobs Plan, which strives to "create good jobs electrifying vehicles."⁸⁸

These presidential statements did not exist when the Commission issued its remedial orders in the Batteries investigation, so they were not a factor the Commission used in determining a remedy. In the future, it may be persuasive for a respondent to point to presidential policy statements to argue that Commission remedies would negatively affect or weaken a domestic industry. Such arguments were effective in two of the three circumstances where the Commission disapproved of a remedy on public interest grounds.⁸⁹ The President has identified the EV battery supply industry as a source of job creation. Alternatively, presidential statements can support the President's disapproval of a Commission remedy, like the 2013 disapproval that cited DOJ and USPTO policy statements.

III. CONCLUSION

The Batteries investigation raises a question for the future - how can parties persuade the Commission to preclude a remedy with evidence besides the lack of a short-term, reasonable substitute? Here, the public's concerns and SK's arguments were too general or inconclusive to justify denying a remedy outright. To help expand the scope of the Commission's analysis, parties should actively seek to obtain a delegation of the issue to a Judge or a presidential veto.

Delegating the public interest factors to a Judge could expand the Commission's analysis by supplementing the factual record, but it may remain difficult for parties to produce determinative evidence or even receive delegation at all. First, directly linking the negative impacts of an exclusion order to circumstances like job loss, community investments, or environmental harms is likely challenging, time consuming, and expensive. Although this evidence would make it more difficult for the Commission to rely primarily on short-term reasonable substitutes, this evidence may be difficult to produce. Second, if the Commission is satisfied with the facts presented through the parties' briefs and the public comments, then it may be unlikely to delegate the issue. In the Batteries investigation, the Commission found the parties' briefs and the public's comments already established Ford and VW lacked a reasonable substitute for SK's batteries and denied a delegation to the Judge. Further, if the Commission finds evidence other than short-term, reasonable substitutes unpersuasive, delegation may be unnecessary, and consequently denied, since additional evidence may not contribute to the Commission's analysis.

The Presidential Review process may be another, albeit indirect, way to widen the Commission's analysis by addressing potentially negative policy impacts of a determination. The President can veto a determination for broad "policy reasons" with or without formal presidential statements. Therefore, the President can decide how and whether the public interest is negatively impacted. Parties could also work with the USTR for a settlement, as done in the Batteries investigation, to prevent the Commission's remedial order from taking effect.

In conclusion, the Commission's public interest analysis in the Batteries investigation (which was consistent with past determinations) suggests the Commission remains willing to tailor remedies based on the public interest factors, but is reluctant to deny remedies outright. The public's concern focused on the potential negative impact to the domestic EV battery industry and American jobs and investments, but the Commission did not find that determinative. Rather, the lack of a commercially reasonable, short-term substitute for SK batteries was the basis for exempting the Ford F-150 and VW programs from an exclusion order for a limited time. The Commission acknowledged the other concerns, but left unanswered how (if at all) such concerns could preclude a remedial order in the future.

IV. 2022 UPDATE

Recently, in Certain Chemical Mechanical Planarization Slurries and Components Thereof, the Commission tailored a remedial order excluding slurries used in semiconductor fabrication from the United States.⁹⁰ It found the public interest factors warranted delaying the import ban for one year.⁹¹ Entities that used the infringing product could continue receiving it for a "current semiconductor chip fabrication development project . . . ongoing as of the date of the issuance of the Commission's orders."⁹² Such entities were required to submit a documented need. The tailored remedy's purpose is to give the entities sufficient time to switch to non-infringing slurries.⁹³ The Commission's reasoning is briefly summarized below.

The public health and welfare did not justify the tailored remedy because no specific evidence was offered to demonstrate "concrete impacts" to potentially harmed industries, like "medical devices, advanced research, healthcare, and clean energy," if the infringing articles were excluded.⁹⁴ This reasoning is very similar to Commissioner Schmidtlein's rationale in the Batteries investigation.⁹⁵ Separately, Chair Kearns felt the public health and welfare did justify a tailored remedy but agreed that "given the lack of a well-developed record and arguments on this point, he does not rely on the public welfare factor to support tailored relief."⁹⁶

Like the Batteries investigation, the competitive conditions in the United States, specifically the semiconductor shortage, justified the tailored remedy. "[I]mmediate exclusion . . . could impact the future supply of semiconductors in the United States and exacerbate or prolong the semiconductor chip shortage at some point in the future."⁹⁷ The delayed import ban would mitigate these negative effects. Similarly, the potentially negative impacts on U.S. consumers also supported the delayed import ban.⁹⁸ Finally, the production of like or directly competitive articles in the United States did not justify a tailored remedy or entirely preclude relief because other competitive slurries were identified in the United States.⁹⁹

Notably, in footnote 28, the Commission explained why they found respondent DuPont's reliance on Executive Order 14017¹⁰⁰ and the U.S. Innovation and Competition Act¹⁰¹ unpersuasive.¹⁰² The Commission explained:

[W]hile they address the semiconductor chip manufacturing sector as a whole, neither the Act nor Executive Order mentions or expresses any particular concerns about the supply of CMP slurries, nor do they specifically address the particular public interest considerations that the Commission is statutorily charged with considering.¹⁰³

Unlike Crankpin Grinders and Certain Inclined-Field Acceleration Tubes, where Executive and congressional policy supported a tailored remedy,¹⁰⁴ the Slurries investigation demonstrates such evidence does not warrant a tailored remedial order if it does not specifically address the statutory public interest factors. Like the Batteries investigation, the Commission's public interest analysis in the Slurries investigation is consistent with past tailoring decisions.

The Slurries and Batteries investigations demonstrate that the Commission looks for evidence directly connecting an infringing article's impact on the public interest factors when considering a tailored remedial order. Further, Executive and Congressional policy must also directly address the statutory public interest factors to be persuasive.

Footnotes

1 19 U.S.C. § 1337(d)(1).

2 SeeTrade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978, 2054 (codified as amended at 19 U.S.C. § 1337).

3 S. Rep. No. 93-1298, 1974 WL 11696 at *7326 (1974).

4 Certain Lithium Ion Batteries, Battery Cells, Battery Modules, Battery Packs, Components Thereof, and Processes Therefor, Inv. No. 337-TA-1159, Comm'n Op. (Mar. 4, 2021) ("Batteries").

5 Certain Lithium Ion Batteries, Battery Cells, Battery Modules, Battery Packs, Components Thereof, and Processes Therefor, Inv. No. 337-TA-1159, Exclusion Order (Feb. 10, 2021).

6 See Batteries, at 3-4.

7 See Complainants' Submission on Remedy, Bonding, and Public Interest, EDIS Doc. ID 709534 at 31 (May 4, 2020).

8 Id.

9 Id.

10 See Batteries, at 72.

11 See e.g., Batteries, at 93; Respondents Reply to Complainants' and Staff's Initial Submissions on Public Interest, Remedy, and Bonding, EDIS Doc. ID 710270 at Ex. 71 (May 13, 2020).

12 See e.g., Certain Automatic Crankpin Grinders, Comm'n Determination and Order, Inv. No. 337-TA-60 (Dec. 17, 1979) (denying a remedy to exclude crankpin grinders because there was no substitute that enabled the automotive industry to meet fuel efficiency standards) ("Crankpin Grinders"); Certain Inclined-Field Acceleration Tubes, Comm'n Action and Order, Inv. No. 337-TA-67 (Dec. 29, 1980) (denying a remedy to exclude acceleration tubes because the public interest supported atomic research); Certain Fluidized Supporting Apparatus and Components Thereof, Inv. No. 337-TA-182/188, Comm'n Op. (Oct. 5, 1984) (denying a remedy to exclude hospital beds for burn patients because there was no substitute able to provide comparable treatment).

13 Certain Baseband Processor Chips and Chipsets, Transmitter and Receiver (Radio) Chips, Power Control Chips and Products Containing Same, including Cellular Telephone Headsets, Inv. No. 337-TA-543, Comm'n Op. at 152-53 (Jun. 19, 2007).

14 Id.

15 Certain Personal Data and Mobile Communications Devices and Related Software, Inv. No. 337-TA-710, Comm'n Op. at 79 (Dec. 19, 2011).

16 Id.

17 Certain Microfluidic Devices, Inv. No. 337-TA-1068, Comm'n Op. at 31 (Jan. 10, 2020).

18 Id.

19 Id. at 45.

20 Certain Road Milling Machines and Components Thereof, Inv. No. 337-TA-1067, Comm'n Op. (July 18, 2019).

21 Id.at 32.

22 Id.at 32-33.

23 See Batteries, at 1-2.

24 Batteries, at 2.

25 Id.

26 Id.

27 Id.

28 Id. at 52.

29 Id.

30 Id. at 54.

31 Letter from Mike DeWine, Governor of Ohio, to Lisa R. Barton, Sec'y, U.S. Int'l Trade Comm'n, EDIS Doc. ID 710339 (Filed May 1, 2020) ("In this instance, violation of the law is threatening to undermine both direct significant investment in Ohio, as well as the development of a supply chain for factories both in Ohio and Michigan. Accordingly, I ask that the Commission fully support the public interest objectives of supporting intellectual property rights and job growth by protecting investments that will directly benefit the economics of Ohio and the American people.").

32 Batteries, at 52.

33 Id. at 52-53.

34 See generally Letter from Brian P. Kemp, Governor of Ga., to Lisa R. Barton, Sec'y, U.S. Int'l Trade Comm'n, EDIS Doc. ID 675729 (May 13, 2019) ("Namely, 2,000 jobs that would have directly employed Georgians will be lost"; "If the Facility is not built, Jackson County and the State of Georgia will also lose out on their existing investment and a tremendous amount of future tax revenue"; "Having more battery manufacturing capacity within the United States will allow U.S. auto manufacturers to purchase U.S. made electric vehicle batteries and help reduce the United States' trade deficit with China").

35 SeeBrief of Office of Unfair Import Investigations on Remedy, the Public Interest, and Bonding, EDIS Doc. ID 709685 at 2, 8 (May 6, 2020).

36 SeeReply Brief of Office of Unfair Import Investigations on Remedy, the Public Interest, and Bonding, EDIS Doc. ID 710273 at 14, 17, and 23 (May 13, 2020).

37 See Batteries, at 91-92.

38 Id. at 73.

39 Id.

40 Id.

41 Id.at 54-59.

42 See Batteries, Complainants' Submission on Remedy, Bonding, and Public Interest, EDIS Doc. ID 709534 at 39 (May 4, 2020).

43 See Batteries, at 54-59.

44 Id.at 72.

45 Id. at 71-72.

46 Id. at 73.

47 Id. at 74-75 ("Also as discussed above, Ford contends that for its F-150 program, it would take four years to switch suppliers to another U.S.-based EV battery producer.").

48 Id. at 58.

49 Id. at 77.

50 Id. at 77-78.

51 Id. at 78.

52 Id. at 75-76 fn.40.

53 Id. at 75.

54 See Batteries, at 74.

55 Id. at 73.

56 See Batteries, at 73-74.

57 Id. at 75.

58 Id. at 70.

59 Id. at 68.

60 Id.

61 Id.

62 Id.

63 Id. at 69.

64 See Batteries, Complainants' Submission on Remedy, Bonding, and Public Interest, EDIS Doc. ID 709534 at 35 (May 4, 2020).

65 SeeCrankpin Grinders; Batteries, at 67.

66 SeeBatteries, at 67.

67 Id. at 68-69.

68 See Batteries, Complainants' Submission on Remedy, Bonding, and Public Interest, EDIS Doc. ID 709534 at 37 (May 4, 2020).

69 See Batteries, at 70 ("Crankpin Grinders demonstrates a reluctance to impose a remedy that would hamper domestic production of energy efficient automobiles when the record demonstrates that doing so would have a negative impact on energy conservation.").

70 Id. at 70.

71 Id. at 70, fn.37.

72 Id.

73 Id. at 70-71, fn.37.

74 Id. at 76.

75 Id. at 76, 80.

76 See19 U.S.C. Sec. 1337(j)(2).

77 Id.

78 Id.

79 Letter from Michael B.G. Froman, Ambassador, Exec. Office of the President, to Irving A. Williamson, Chairman, U.S. Int'l Trade Comm'n, EDIS Doc. ID 515262 (Aug. 3, 2013).

80 Id.

81 Press Release, The White House, Statement by President Joe Biden on the Electric Battery Dispute Settlement (Apr. 11, 2021),https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/11/statement-by-president-joe-biden-on-the-electric-battery-dispute-settlement/.

82 Id.

83 Id.

84 Id.

85 Exec. Order No. 14,017, 86 FR 11849, (Feb. 24, 2021).

86 Id.

87 Id. at Sec. 3(b)(ii).

88 Press Release, The White House, Fact Sheet: The American Jobs Plan (Mar. 31, 2021),https://www.whitehouse.gov/briefing-room/statements-releases/2021/03/31/fact-sheet-the-american-jobs-plan/.

89 See e.g., Crankpin Grinders, (finding it was not in the public interest to exclude importation of crankpin grinders and relying in part on "the fact that Congress and the President have also clearly established a policy requiring automotive companies to increase the fuel economy of the automobiles they produce"); Certain Inclined-Field Acceleration Tubes, (denying relief due to overriding public interest in continuing basic atomic research using imported acceleration tubes and relying on fact that "the President and Congress have issued declarations of support for basic science research.").

90 Certain Chemical Mechanical Planarization Slurries and Components Thereof, Inv. No. 337-TA-1204, Comm'n Op. (Jan. 6, 2022) ("Slurries").

91 Id.

92 Id.at 53.

93 See id.at 52.

94 Id.at 43-44.

95 SupraThe Public Health and Welfare.

96 Slurries, at 44 fn 22.

97 Id.at 48.

98 See id.at 50-51.

99 Id.at 50-51.

100 See supra note 85. This Executive Order was introduced as possible evidence to persuade the Commission that certain areas of technology identified by the Executive are of national importance because they are critical to U.S. supply chains. The Executive Order stated that "The United States needs resilient, diverse, and secure supply chains to ensure our economic prosperity and national security. . . . Therefore, it is the policy of [President Biden's] administration to strengthen the resilience of America's supply chains." High-capacity, EV battery, and semiconductor manufacturing supply chains were identified in the Executive Order for review.

101 U.S. Innovation and Competition Act of 2021, S. 1260, 117th Cong. (as passed by Senate, June 8, 2021). The bill "provides funding for FY2022-2026 to support U.S. semiconductor manufacturing, research and development, and supply chain security."

102 See Slurries, at 52 fn 28.

103 Id.

104 See supranote 89.

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