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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
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`In the Matter of
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`CERTAIN LITHIUM ION BATTERIES,
`BATTERY CELLS, BATTERY
`MODULES, BATTERY PACKS,
`COMPONENTS THEREOF, AND
`PROCESSES THEREFOR
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`Investigation No. 337-TA-1159
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`LIMITED EXCLUSION ORDER
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`The United States International Trade Commission (“Commission”) has found SK
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`Innovation Co., Ltd. and SK Battery America, Inc. (collectively, “Respondents” or “SK”) in
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`default as a sanction for discovery abuse pursuant to section 337(h) of the Tariff Act of 1930,
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`as amended (19 U.S.C. § l337(h)), and Commission Rule 210.33 (19 C.F.R. § 210.33). The
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`Commission has thereby determined that there is a violation of section 337 of the Tariff Act of
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`1930, as amended, 19 U.S.C. § 1337, in the unlawful importation into the United States or in
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`the sale by Respondents of lithium-ion batteries, battery cells, battery modules, battery packs,
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`components thereof, and processes therefor, manufactured by or on behalf of Respondents
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`using one or more of the misappropriated trade secrets identified in Complainants’ final
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`election of disclosed trade secrets (Jan. 22, 2020) (“LG Trade Secrets”).1 The LG Trade
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`Secrets are the following 22 trade secrets (including subparts) in Complainants’ Final Trade
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`Secret Disclosure (Oct. 7, 2019): 2, 8, 31, 33, 60, 66, 80, 81, 84, 94, 95, 96, 97, 117, 119, 124,
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`138, 139, 144, 145, 146, and 147.
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`1 Complainants are LG Chem, Ltd., LG Energy Solution, Ltd., and LG Energy Solution
`Michigan, Inc. and are referred to collectively herein as “Complainants.”
`1
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`Having reviewed the record in this investigation, including the written submissions of
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`the parties, the Commission has made its determination on the issues of remedy, public
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`interest, and bonding. The Commission has determined that the appropriate form of relief
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`includes a limited exclusion order prohibiting the unlicensed entry of lithium-ion batteries,
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`battery cells, battery modules, battery packs, and components thereof manufactured abroad by
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`or on behalf of, or imported by or on behalf of, Respondents or any of their affiliated
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`companies, parents, subsidiaries, agents, or other related business entities, or their successors
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`or assigns. The Commission notes that the covered articles identified in paragraph 1 are
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`defined by the plain English statement in the Notice of Investigation.
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`The Commission has also determined that the public interest factors enumerated in 19
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`U.S.C. § 1337(d) do not preclude the issuance of the limited exclusion order but that
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`tailoring of the order is appropriate in view of the public interest considerations discussed in
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`the Commission’s opinion, and that the bond during the period of Presidential review shall
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`be in the amount of one hundred percent (100%) of the entered value of the articles subject
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`to this Order.
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`Accordingly, the Commission hereby ORDERS that:
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`1. Lithium-ion batteries, battery cells, battery modules, battery packs, and components
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`thereof (“covered articles”) that use any of the LG Trade Secrets and that are
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`manufactured abroad by or on behalf of, or imported by or on behalf of,
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`Respondents, or their affiliated companies, parents, subsidiaries, agents, or other
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`related business entities, or their successors or assigns, are excluded from entry for
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`consumption into the United States, entry for consumption from a foreign trade
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`zone, entry into a bonded warehouse or foreign trade zone, or withdrawal from a
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`warehouse for consumption for 10 years from the date of issuance of this Order,
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`except under license from, or with the permission of, the trade secret owner or as
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`provided by law.
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`2. The lithium-ion batteries, battery cells, battery modules, battery packs, and
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`components thereof that are subject to this Order (i.e., “covered articles”) are as
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`follows: lithium-ion batteries, battery cells, battery modules, battery packs, and
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`components thereof.
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`3. Notwithstanding paragraph 1 of this Order, covered articles are entitled to entry for
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`consumption into the United States, entry for consumption from a foreign trade
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`zone, entry into a bonded warehouse or foreign trade zone, or withdrawal from a
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`warehouse for consumption under bond in the amount of 100 percent (100%) of the
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`entered value, pursuant to subsection (j) of section 337 (19 U.S.C. § 1337(j)) and the
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`Presidential Memorandum for the United States Trade Representative of July 21,
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`2005 (70 Fed. Reg. 43,251), from the day after this Order is received by the United
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`States Trade Representative until such time as the United States Trade
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`Representative notifies the Commission that this Order is approved or disapproved
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`but, in any event, not later than sixty (60) days after the date of receipt of this Order.
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`All entries of covered articles made pursuant to this paragraph are to be reported to
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`U.S. Customs and Border Protection (“CBP”), in advance of the date of the entry,
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`pursuant to procedures CBP establishes.
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`4. Prior to entry for consumption into the United States, entry for consumption from a
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`foreign trade zone, entry into a bonded warehouse or foreign trade zone, or
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`withdrawal from a warehouse for consumption of lithium-ion batteries, battery cells,
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`3
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`battery modules, battery packs, and components thereof that may be subject to this
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`Order, Respondent must seek a ruling from the Commission to determine whether
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`such articles sought to be imported are covered by this Order.
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`5. Notwithstanding paragraphs 1 and 4 of this Order, covered articles are entitled to
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`entry for consumption into the United States, entry for consumption from a foreign
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`trade zone, entry into a bonded warehouse or foreign trade zone, or withdrawal from
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`a warehouse for consumption where the covered articles are to be used for purposes
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`of replacement or repair of Kia vehicles originally equipped with SK Innovation
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`Co., Ltd.’s batteries and that were sold to U.S. consumers as of the date of this
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`Order. All entries of covered articles made pursuant to this paragraph are to be
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`reported to CBP, in advance of the date of the entry, pursuant to procedures CBP
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`establishes.
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`6. Notwithstanding paragraphs 1 and 4 of this Order, for two years from the date of
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`this Order, covered articles are entitled to entry for consumption into the United
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`States, entry for consumption from a foreign trade zone, entry into a bonded
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`warehouse or foreign trade zone, or withdrawal from a warehouse for consumption
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`where the covered articles are being used exclusively for SK’s domestic production
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`of lithium-ion batteries, battery cells, battery modules, or battery packs for
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`Volkswagen Group of America’s MEB line for the North America Region and/or
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`Ford Motor Co.’s EV F-150 program. However, covered lithium-ion batteries,
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`battery cells, battery modules, or battery packs (as opposed to components thereof)
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`sought be imported pursuant to this paragraph shall not be entitled to entry or
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`withdrawal during this two-year period, except for testing or development for SK’s
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`4
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`domestic production above. All entries or withdrawals of articles made pursuant to
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`this paragraph are to be reported to CBP, in advance of the date of the entry,
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`pursuant to procedures CBP establishes.
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`7. Notwithstanding paragraphs 1 and 4 of this Order, for four years from the date of
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`this Order, covered articles are entitled to entry for consumption into the United
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`States, entry for consumption from a foreign trade zone, entry into a bonded
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`warehouse or foreign trade zone, or withdrawal from a warehouse for consumption
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`where the covered articles are being used exclusively for SK’s domestic production
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`of lithium-ion batteries, battery cells, battery modules, or battery packs for Ford
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`Motor Co.’s EV F-150 program. However, covered lithium-ion batteries, battery
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`cells, battery modules, or battery packs (as opposed to components thereof) sought
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`to be imported pursuant to this paragraph shall not be entitled to entry or withdrawal
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`during this four-year period, except for testing or development for SK’s domestic
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`production above. All entries or withdrawals of articles made pursuant to this
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`paragraph are to be reported to CBP, in advance of the date of the entry, pursuant to
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`procedures CBP establishes.
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`8. At the discretion of CBP and pursuant to the procedures it establishes, persons
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`seeking to import articles that are potentially subject to this Order may be required
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`to certify that they are familiar with the terms of this Order, that they have made
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`appropriate inquiry, and thereupon state that, to the best of their knowledge and
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`belief, the articles being imported are not excluded from entry under paragraph 1 of
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`this Order. At its discretion, CBP may require persons who have provided the
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`certification described in this paragraph to furnish such records or analyses as are
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`5
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`necessary to substantiate the certification.
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`9. The Commission may modify this Order in accordance with the procedures
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`described in section 210.76 of the Commission’s Rules of Practice and Procedure
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`(19 C.F.R. § 210.76).
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`10. The Secretary shall serve copies of this Order upon each party of record in this
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`investigation that has retained counsel or otherwise provided a point of contact for
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`electronic service and upon CBP.
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`Notice of this Order shall be published in the Federal Register.
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`By order of the Commission.
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`Issued: February 10, 2021
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`Lisa R. Barton
`Secretary to the Commission
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`6
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`CERTAIN LITHIUM ION BATTERIES, BATTERY CELLS,
`BATTERY MODULES, BATTERY PACKS, COMPONENTS
`THEREOF, AND PROCESSES THEREFOR
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`Inv. No. 337-TA-1159
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`PUBLIC CERTIFICATE OF SERVICE
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`I, Lisa R. Barton, hereby certify that the attached COMMISSION ORDER has been
`served via EDIS upon the Commission Investigative Attorney, Claire Comfort, and the
`following parties as indicated, on February 10, 2021.
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`Lisa R. Barton, Secretary
`U.S. International Trade Commission
`500 E Street, SW, Room 112
`Washington, DC 20436
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`On Behalf of Complainants LG Chem, Ltd. and LG Chem
`Michigan, Inc.:
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`Bert C. Reiser, Esq.
`LATHAM & WATKINS LLP
`555 Eleventh Street, NW
`Suite 1000
`Washington, DC 20004
`Email: bert.reiser@lw.com
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`On Behalf of Respondents SK Innovation Co., Ltd. and SK
`Battery America, Inc.:
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`Sturgis M. Sobin, Esq.
`COVINGTON & BURLING LLP
`One City Center
`850 Tenth Street, NW
`Washington, DC 20001
`Email: ssobin@cov.com
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