By Eric Schweibenz
On October 21, 2009, ALJ Carl C. Charneski issued the public version (dated August 21, 2009) of the Recommended Determination on Remedy and Bonding (“RD”) in Certain Variable Speed Wind Turbines and Components Thereof (Inv. No. 337-TA-641).  In the RD, ALJ Charneski recommended (1) that a limited exclusion order issue; (2) a cease and desist order not issue as to any respondent; and (3) if the Commission issues an exclusion order, the Presidential review period bond should be set at 100% of the entered value of any covered product.

By way of background, the Complainant in this investigation is General Electric Co. (“GE”) and the Respondents are Mitsubishi Heavy Industries, Ltd. (“MHI”), Mitsubishi Heavy Industries America, Inc. (“MHIA”), and Mitsubishi Power System, Inc. (“MPSA”) (collectively, “Mitsubishi”).  On August 7, 2009, ALJ Charneski issued the initial determination in this investigation, finding that a violation of Section 337 had occurred in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain variable speed wind turbines and components thereof.  See our August 10 and October 8 posts for more details about the current status of this investigation.

Regarding remedy, ALJ Charneski recommended that if a violation of Section 337 is found, a limited exclusion order should issue that is directed to MHI and MPSA in view of these parties’ stipulation “that they have sold for importation, imported and, or, sold after importation into the United States, the accused Mitsubishi turbines.”  As to whether a cease and desist order should issue in this investigation, ALJ Charneski rejected GE’s request since it was not raised by GE in its prehearing statement, but rather was raised for the first time in GE’s post-hearing brief.  ALJ Charneski thus determined that “the issue of whether a cease and desist order should issue here was untimely raised, and the request must be rejected.”

With respect to bond, ALJ Charneski noted that “no party relies on price information with respect to the issue of bond” and “there is inadequate evidence to permit an alternate method of bond calculation, such as the calculation of a reasonable royalty rate.”  According to the RD, while the “Mitsubishi respondents have calculated the midpoint dollar amount of the royalties required by various GE licenses,” it was “not established that the licenses used in the calculation are comparable to the extent that the midpoint accurately represents a reasonable royalty rate.”  Accordingly, ALJ Charneski recommended that a 100% bond be required of Mitsubishi during the Presidential review period.