Certain Electronic Nicotine Delivery Systems and Components Thereof; Commission Determination to Review the Final Initial Determination in Part and To Affirm the Finding of a Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest and Bonding; Extension of the Target Date, 9803-9806 [2020-03346]
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Federal Register / Vol. 85, No. 34 / Thursday, February 20, 2020 / Notices
BLM_UT_PRD@blm.gov. Persons who
use a telecommunications device for the
deaf may call the Federal Relay Service
(FRS) at 1–800–877–8339 to leave a
message or question for the above
individual. The FRS is available 24
hours a day, seven days a week. Replies
are provided during normal business
hours.
In
conjunction with cooperating agencies,
and using input provided by the public,
stakeholder groups, State and local
government entities, American Indian
Tribes, and the Utah Resource Advisory
Council, the BLM developed the
Approved RMPs for the GSENM and the
KEPA.
The GSENM includes three units: The
209,993-acre Grand Staircase Unit, the
551,034-acre Kaiparowits Unit, and the
242,836-acre Escalante Canyons Unit.
The BLM’s Approved RMPs for the
Grand Staircase, Kaiparowits, and
Escalante Canyons units of the GSENM
identify goals, objectives, and
management actions necessary for the
proper care and management of the
objects and values identified in
Proclamation 6920, as modified by
Proclamation 9682, while allowing for
other appropriate uses, such as the
ongoing management of recreation,
grazing, and scientific research.
The KEPA encompasses 861,974 acres
of public lands. The Approved RMP for
the KEPA manages those lands for
multiple use and sustained yield,
including resource protection,
consistent with the Federal Land Policy
and Management Act of 1976 (Pub. L.
94–579), as amended. This plan allows
for the future consideration of mineral
leasing and development, balances offhighway vehicle travel with other
resource uses, and makes public lands
available for grazing while protecting
natural and heritage resources.
The BLM, along with cooperating
agencies, prepared an Environmental
Impact Statement (EIS) in accordance
with the National Environmental Policy
Act for the GSENM and KEPA RMPs to
analyze the direct, indirect, and
cumulative environmental impacts
associated with the proposed action and
the alternatives.
In the future, the National Park
Service (NPS), who cooperated with the
BLM on preparation of the NEPA
analysis, may adopt the EIS and prepare
a separate decision related to livestock
grazing for lands within the Glen
Canyon National Recreation Area that
are administered by the NPS. The RODs
and Approved RMPs do not change
management for the Glen Canyon
National Recreation Area.
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The BLM consulted with the U.S. Fish
and Wildlife Service (USFWS) to meet
the requirements of Section 7 of the
Endangered Species Act (ESA). The
USFWS issued a Biological Opinion on
November 1, 2019 that determined that
the Approved RMPs are not likely to
jeopardize the continued existence of
the species consulted on and are not
likely to destroy or adversely modify
designated critical habitat.
The BLM also consulted with the
Utah State Historic Preservation Office
(SHPO) to meet the requirements of
Section 106 consultation under the
National Historic Preservation Act
(NHPA). The SHPO concurred with
BLM’s finding of no adverse effect to
cultural resources, as outlined in a letter
dated September 6, 2019.
The formal public scoping process for
the RMPs and EIS began on January 16,
2018, with the publication of a Notice
of Intent in the Federal Register (83 FR
2181). The Notice of Availability (NOA)
for the Draft RMPs/EIS was published
on August 17, 2018, and initiated a 90day public comment period. A revised
document was released and a Notice of
Error was published in the Federal
Register on August 31, 2018. The public
comment period was extended for an
additional 15 days and ended on
November 30, 2018.
On August 23, 2019, the BLM
published a NOA for the Proposed
RMPs/Final EIS, initiating a 30-day
protest period, a 60-day Governor’s
consistency review, and 60-day public
comment period for certain recreational
shooting closures under the John D.
Dingell, Jr. Conservation, Management,
and Recreation Act of 2019. During the
initial protest period for the Proposed
RMPs, the BLM became aware of a
portion of public comments submitted
on the Draft EIS that were not
incorporated into the Proposed RMPs/
Final EIS. The BLM updated the
Proposed RMPs/EIS and issued a notice
of error in the Federal Register on
October 18, 2019, which re-opened
public protest period for an additional
30 days. In total, the BLM received 431
protest submissions. All protests were
resolved prior to the issuance of the
RODs. For a full description of the
issues raised during the protest period
and how they were addressed, please
refer to the BLM Protest Resolution
Report, which is available online at
https://www.blm.gov/programs/
planning-and-nepa/publicparticipation/protest-resolution-reports.
The Governor of Utah reviewed the
Proposed RMPs/Final EIS to identify
inconsistencies with State or local
plans, policies, or programs; the BLM
addressed the Governor’s input in the
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RODs/Approved RMPs. As a result of
internal review, the protest period,
target shooting comment period,
government-to-government
consultation, Section 106 (NHPA) and
Section 7 (ESA) consultation, and
Governor’s consistency review, the BLM
made minor modifications to the
Approved RMPs to clarify management
actions. All changes are described in the
Modifications and Clarifications
(Sections 3.1.2) of the GSENM and
KEPA RODs, respectively.
Authority: 40 CFR 1506.6 40 CFR 1506.10
and 43 CFR 1610.2.
Casey Hammond,
Acting Assistant Secretary, Land and
Minerals Management.
[FR Doc. 2020–03395 Filed 2–19–20; 8:45 am]
BILLING CODE P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1139]
Certain Electronic Nicotine Delivery
Systems and Components Thereof;
Commission Determination to Review
the Final Initial Determination in Part
and To Affirm the Finding of a
Violation of Section 337; Schedule for
Filing Written Submissions on
Remedy, the Public Interest and
Bonding; Extension of the Target Date
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to review
the presiding administrative law judge’s
(‘‘ALJ’’) final initial determination
(‘‘ID’’) in part. On review, the
Commission affirms the ID’s finding of
a violation of section 337 in the abovecaptioned investigation. The
Commission requests written
submissions from the parties, interested
government agencies, and interested
persons on the issues of remedy, the
public interest, and bonding concerning
respondent Eonsmoke, LLC
(‘‘Eonsmoke’’) and defaulting
respondent XFire, Inc. (‘‘XFire’’). The
Commission has also determined to
extend the target date for completion of
the above-captioned investigation to
Monday, April 20, 2020.
FOR FURTHER INFORMATION CONTACT:
Cathy Chen, Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone 202–
205–2392. Copies of non-confidential
SUMMARY:
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documents filed in connection with this
investigation are or will be available for
inspection during official business
hours (8:45 a.m. to 5:15 p.m.) in the
Office of the Secretary, U.S.
International Trade Commission, 500 E
Street SW, Washington, DC 20436,
telephone (202) 205–2000. General
information concerning the Commission
may also be obtained by accessing its
internet server at https://www.usitc.gov.
The public record for this investigation
may be viewed on the Commission’s
electronic docket (EDIS) at https://
edis.usitc.gov. Hearing-impaired
persons are advised that information on
this matter can be obtained by
contacting the Commission’s TDD
terminal on (202) 205–1810.
On
December 13, 2018, the Commission
instituted this investigation under
section 337 of the Tariff Act of 1930, as
amended, 19 U.S.C. 1337, based on a
complaint filed on behalf of Juul Labs,
Inc. (‘‘JLI’’) of San Francisco, California.
83 FR 64156 (Dec. 13, 2018). The
complaint, as amended and
supplemented, alleges violations of
section 337 based upon the importation
into the United States, the sale for
importation, and the sale within the
United States after importation of
certain electronic nicotine delivery
systems and components thereof by
reason of infringement of certain claims
of U.S. Patent Nos.: 10,070,669 (‘‘the
’669 patent’’); 10,076,139 (‘‘the ’139
patent’’); 10,045,568 (‘‘the ’568 patent’’);
10,058,130 (‘‘the ’130 patent’’); and
10,104,915 (‘‘the ’915 patent’’)
(collectively, ‘‘the Asserted Patents’’).
Id. The Commission’s notice of
investigation named twenty-one
respondents, including Eonsmoke of
Clifton, New Jersey and XFire of
Stafford, Texas. Id. at 64157. The Office
of Unfair Import Investigations (‘‘OUII’’)
is also a party to the investigation.
On February 25, 2019, the ALJ granted
JLI’s motion to amend the complaint
and notice of investigation to change the
name of respondent Bo Vaping of
Garden City, New York to ECVD/MMS
Wholesale LLC of Garden City, New
York and the name of respondent MMS
Distribution LLC of Rock Hill, New York
to MMS/ECVD LLC of Garden City, New
York. See Order No. 8 (Feb. 25, 2019),
not rev’d by Comm’n Notice (Mar. 25,
2019).
On February 28, 2019, the ALJ granted
a motion to amend the complaint and
notice of investigation to change the
name of respondent Limitless Mod Co.
of Simi Valley, California to Limitless
MOD, LLC of Simi Valley, California.
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See Order No. 10 (Feb. 28, 2019), not
rev’d by Comm’n Notice (Mar. 27, 2019).
Before the evidentiary hearing, JLI
settled with the following eight
respondents: J Well France S.A.S. of
Paris, France; ECVD/MMS Wholesale
LLC; MMS/ECVD LLC; The Electric
Tobacconist, LLC of Boulder, Colorado;
ALD Group Limited of Guangdong
Province, China; Flair Vapor LLC of
South Plainfield, New Jersey; Shenzhen
Joecig Techonology Co., Ltd. of
Guangdong Province, China; and Myle
Vape Inc. of Jamaica, New York. See
Order No. 31 (July 30, 2019), not rev’d
by Comm’n Notice (Aug. 23, 2019);
Order No. 16 (Mar. 21, 2019), not rev’d
by Comm’n Notice (Apr. 4, 2019); Order
No. 33 (July 30, 2019), not rev’d by
Comm’n Notice (Aug. 23, 2019); Order
No. 13 (Mar. 12, 2019), not rev’d by
Comm’n Notice (Apr. 5, 2019); Order
No. 34 (July 30, 2019), not rev’d by
Comm’n Notice (Aug. 23, 2019); Order
No. 32 (July 30, 2019), not rev’d by
Comm’n Notice (Aug. 23, 2019).
In addition, the investigation
terminated as to the following six
respondents based on a consent order
stipulation and the issuance of a
consent order: Vapor Hub International,
Inc. of Simi Valley, California; Limitless
MOD, LLC; Asher Dynamics, Inc. of
Chino, California; Ply Rock of Chino,
California; Infinite-N Technology
Limited of Guangdong Province, China;
and King Distribution LLC of Elmwood
Park, New Jersey. See Order No. 9 (Feb.
27, 2019), not rev’d by Comm’n Notice
(Mar. 27, 2019); Order No. 11 (Feb. 28,
2019), not rev’d by Comm’n Notice
(Mar. 26, 2019); Order No. 18 (Mar. 28,
2019), not rev’d by Comm’n Notice (Apr.
11, 2019); Order No. 20 (Apr. 2, 2019),
not rev’d by Comm’n Notice (Apr. 15,
2019).
On April 23, 2019, the ALJ found
respondent XFire in default pursuant to
Commission Rule 210.16(b), 19 CFR
210.16(b). See Order No. 22 (Apr. 23,
2019), not rev’d by Comm’n Notice (May
16, 2019).
Also, prior to the evidentiary hearing,
the ALJ granted JLI’s motion for partial
termination of the investigation with
respect to allegations of infringement as
to all asserted claims of the ’139 patent
and certain asserted claims of the other
asserted patents. See Order No. 36 (Aug.
8, 2019), not rev’d by Comm’n Notice
(Sep. 5, 2019). As a result, the following
claims remain at issue in the
investigation: Claims 1, 2, and 13 of the
’669 patent; claims 12, 17, and 20 of the
’568 patent; claims 1, 2, and 4 of the
’130 patent; and claims 1, 6, and 21 of
the ’915 patent (collectively, ‘‘the
Asserted Claims’’).
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JLI and the Commission were unable
to serve respondent Keep Vapor
Electronic Tech. Co., Ltd. of Shenzhen,
China despite multiple attempts at
service. The final ID states that JLI does
not request any relief against this
respondent. See ID at 2 n.1.
On May 21, 2019, the ALJ granted a
motion to amend the complaint and
notice of investigation to change the
name of respondent Ziip Lab Co., Ltd.
of Guangdong Province, China to SS
Group Holdings of Guangdong Province,
China. See Order No. 26 (May 21, 2019),
not rev’d by Comm’n Notice (June 14,
2019).
Only five respondents participated in
the evidentiary hearing: SS Group
Holdings; ZLab S.A. of Punta del Este—
Maldonado, Uruguay; Shenzhen Yibo
Technology Co. Ltd. of Guangdong
Province, China (collectively, ‘‘the Ziip
Respondents’’); Vapor 4 Life Holdings,
Inc. of Northbrook, Illinois (‘‘V4L’’); and
Eonsmoke.
On August 5, 2019, one day before the
prehearing conference, the ALJ issued
an ID (Order No. 35), granting JLI’s
motion for summary determination of
importation, infringement, and domestic
industry. The ALJ found that JLI was
entitled to summary determination of
importation with respect to the Ziip
Respondents and their accused
products; Eonsmoke and its accused
products; and V4L and certain V4L
accused products. See Order No. 35 at
4–11 (Aug. 5, 2019). Citing to a
stipulation between JLI and the Ziip
Respondents, the ALJ stated in his
infringement analysis with respect to
the Ziip Respondents’ accused products
that ‘‘the question of whether Ziip
accused products contain or perform
each limitation of asserted claims is
moot.’’ Id. at 11. The ALJ did not
specifically state whether summary
determination of infringement as to the
Ziip Respondents was denied or granted
nor the reasoning supporting grant or
denial of the motion as to this issue. Id.
An evidentiary hearing was held from
August 6–7, 2019.
On September 4, 2019 the
Commission reviewed Order No. 35 in
part. Specifically, the Commission
reviewed the ALJ’s analysis as to
infringement and a statement regarding
mootness on page 11 of the ID. The
Commission remanded to the ALJ for
clarification on this issue and as to
whether the ID grants or denies
summary determination that the Ziip
Respondents infringe the Asserted
Patents. See Comm’n Notice (Sep. 4,
2019).
In response to the Commission’s
September 4, 2019 Notice, the ALJ
clarified that Order No. 35 denied
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summary determination of infringement
as to the Ziip Respondents because that
issue was moot in light of the
stipulation between JLI and the Ziip
Respondents. See Remand of Order No.
35 (Oct. 10, 2019).
On November 19, 2019, the ALJ
granted motions to terminate the
investigation as to the Ziip Respondents
and V4L based on settlement
agreements. See Order Nos. 38 and 39
(Nov. 19, 2019), not rev’d by Comm’n
Notice (Dec. 16, 2019). Accordingly,
only respondent Eonsmoke remains
active in this investigation.
On December 12, 2019, the ALJ
granted JLI’s motion to strike portions of
the Ziip Respondents’ and Eonsmoke’s
posthearing briefs. See Order No. 40
(Dec. 12, 2019). Specifically, these
portions relate to the issue of invalidity
of asserted claim 4 of the ’915 patent,
which was not addressed by
Respondents’ expert or in their
prehearing briefings. Id. at 3–5.
On December 13, 2019, the ALJ issued
a combined final ID and recommended
determination (‘‘RD’’), finding a
violation of section 337 by respondent
Eonsmoke. Specifically, the final ID
finds, inter alia, that JLI satisfied the
importation requirement as to
Eonsmoke’s accused products; that JLI
has shown Eonsmoke’s accused
products infringe the Asserted Claims;
that JLI has satisfied the domestic
industry requirement with respect to the
Asserted Patents; and that the Asserted
Claims have not been shown to be
invalid. In addition, in the event the
Commission finds a violation of section
337, the RD recommends that the
Commission issue a limited exclusion
order (‘‘LEO’’) and cease and desist
orders (‘‘CDO’’) directed at Eonsmoke
and defaulting respondent XFire, and
impose a 100 percent bond during the
period of Presidential review.
No petitions for review were filed,
which means each party has abandoned
all issues decided adversely to that
party. See 19 CFR 210.43(b)(4).
Having reviewed the record of this
investigation, including the final ID, the
Commission has determined to sua
sponte review the final ID in part. 19
CFR 210.44. Specifically, the
Commission has determined to review
and, on review, decline to adopt the
discussion of the validity of element [c]
of claim 12 of the ’669 patent on pages
50 and 55 of the final ID. The
Commission has also determined to
review the discussion of Warranty and
Customer Support and Regulatory
Compliance on pages 265–266 of the
final ID and the discussion of the
quantitative significance of JLI’s
contract manufacturers’ investments in
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19:48 Feb 19, 2020
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the last paragraph on page 272 of the
final ID. The Commission has
determined not to review the remainder
of the final ID, including the other
portions of the ID’s domestic industry
analysis, which are sufficient to support
the ID’s finding that JLI has satisfied the
domestic industry requirement under
subparagraphs 337(a)(3)(A) and (B) with
respect to the Asserted Patents.
Accordingly, the Commission finds a
violation of section 337 by reason of
Eonsmoke’s importation of electronic
nicotine delivery systems and
components thereof that infringe one or
more of claims 1, 2, and 13 of the ’669
patent; claims 12, 17, and 20 of the ’568
patent; claims 1, 2, and 4 of the ’130
patent; and claims 1, 6, and 21 of the
’915 patent. The Commission also finds
that JLI is entitled to relief against
defaulting respondent XFire pursuant to
19 U.S.C. 1337(g)(1).
The Commission has determined to
extend the target date for completion of
the investigation to Monday, April 20,
2020.
In connection with the final
disposition of this investigation, the
statute authorizes issuance of (1) an
order that could result in the exclusion
of the subject articles from entry into the
United States, and/or (2) cease and
desist order(s) that could result in the
respondent(s) being required to cease
and desist from engaging in unfair acts
in the importation and sale of such
articles. Accordingly, the Commission is
interested in receiving written
submissions that address the form of
remedy, if any, that should be ordered.
If a party seeks exclusion of an article
from entry into the United States for
purposes other than entry for
consumption, the party should so
indicate and provide information
establishing that activities involving
other types of entry either are adversely
affecting it or likely to do so. For
background, see Certain Devices for
Connecting Computers via Telephone
Lines, Inv. No. 337–TA–360, USITC
Pub. No. 2843, Comm’n Op. at 7–10
(Dec. 1994). In addition, if a party seeks
issuance of any cease and desist orders,
the written submissions should address
that request in the context of recent
Commission opinions, including those
in Certain Arrowheads with Deploying
Blades and Components Thereof and
Packaging Therefor, lnv. No. 337–TA–
977, Comm’n Op. (Apr. 28, 2017) and
Certain Electric Skin Care Devices,
Brushes and Chargers Therefor, and Kits
Containing the Same, lnv. No. 337–TA–
959, Comm’n Op. (Feb. 13, 2017).
Specifically, if Complainant seeks a
cease and desist order against a
respondent, the written submissions
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9805
should respond to the following
requests:
1. Please identify with citations to the
record any information regarding
commercially significant inventory in
the United States as to each respondent
against whom a cease and desist order
is sought. If Complainant also relies on
other significant domestic operations
that could undercut the remedy
provided by an exclusion order, please
identify with citations to the record
such information as to each respondent
against whom a cease and desist order
is sought.
2. ln relation to the infringing
products, please identify any
information in the record, including
allegations in the pleadings, that
addresses the existence of any domestic
inventory, any domestic operations, or
any sales-related activity directed at the
United States for each respondent
against whom a cease and desist order
is sought.
3. Please discuss any other basis upon
which the Commission could enter a
cease and desist order.
The statute requires the Commission
to consider the effects of any remedy
upon the public interest. The public
interest factors the Commission will
consider include the effect that an
exclusion order would have on (1) the
public health and welfare, (2)
competitive conditions in the U.S.
economy, (3) U.S. production of articles
that are like or directly competitive with
those that are subject to investigation,
and (4) U.S. consumers. The
Commission is therefore interested in
receiving written submissions that
address the aforementioned public
interest factors in the context of this
investigation.
If the Commission orders some form
of remedy, the U.S. Trade
Representative, as delegated by the
President, has 60 days to approve,
disapprove, or take no action on the
Commission’s determination. See
Presidential Memorandum of July 21,
2005, 70 FR 43251 (July 26, 2005).
During this period, the subject articles
would be entitled to enter the United
States under bond, in an amount
determined by the Commission and
prescribed by the Secretary of the
Treasury. The Commission is therefore
interested in receiving submissions
concerning the amount of the bond that
should be imposed if a remedy is
ordered.
Written Submissions: Parties to the
investigation, interested government
agencies, and any other interested
parties are encouraged to file written
submissions on the issues of remedy,
the public interest, and bonding. Such
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initial submissions should include
views on the recommended
determination by the ALJ on remedy
and bonding.
Complainant and the Commission
Investigative Attorney are also requested
to identify the form of remedy sought
and to submit proposed remedial orders
for the Commission’s consideration in
their initial written submissions.
Complainant is further requested to
state the dates that the Asserted Patents
expire, the HTSUS numbers under
which the accused products are
imported, and to supply the
identification information for all known
importers of the products at issue in this
investigation. The written submissions
and proposed remedial orders must be
filed no later than close of business on
February 27, 2020. Reply submissions
must be filed no later than the close of
business on March 5, 2020. No further
submissions on these issues will be
permitted unless otherwise ordered by
the Commission.
Persons filing written submissions
must file the original document
electronically on or before the deadlines
stated above and submit 8 true paper
copies to the Office of the Secretary by
noon the next day pursuant to
Commission Rule 210.4(f), 19 CFR
210.4(f). Submissions should refer to the
investigation number (Inv. No. 337–TA–
1139) in a prominent place on the cover
page and/or the first page. (See
Handbook for Electronic Filing
Procedures, https://www.usitc.gov/
documents/handbook_on_filing_
procedures.pdf). Persons with questions
regarding filing should contact the
Secretary, (202) 205–2000.
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment. All such requests should be
directed to the Secretary to the
Commission and must include a full
statement of the reasons why the
Commission should grant such
treatment. See 19 CFR 201.6. Documents
for which confidential treatment by the
Commission is properly sought will be
treated accordingly. A redacted nonconfidential version of the document
must also be filed simultaneously with
any confidential filing. All information,
including confidential business
information and documents for which
confidential treatment is properly
sought, submitted to the Commission for
purposes of this investigation may be
disclosed to and used: (i) By the
Commission, its employees and Offices,
and contract personnel (a) for
developing or maintaining the records
of this or a related proceeding, or (b) in
internal investigations, audits, reviews,
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19:48 Feb 19, 2020
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and evaluations relating to the
programs, personnel, and operations of
the Commission including under 5
U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract
personnel, solely for cybersecurity
purposes. All contract personnel will
sign appropriate nondisclosure
agreements. All nonconfidential written
submissions will be available for public
inspection at the Office of the Secretary
and on EDIS.
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 13, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020–03346 Filed 2–19–20; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Notice of Lodging of Proposed
Consent Decree Under the Clean Water
Act
On February 10, 2020, the Department
of Justice lodged a proposed consent
decree with the United States District
Court for the District of Maine in the
lawsuits entitled United States of
America v. Grimmel Industries, Inc., et
al., Civil Action No. 2:16–cv–190
(LEW), and United States of America v.
Kennebec Scrap Iron, Inc., Civil Action
No. 1:16–191 (LEW).
The United States filed the
complaints in these Clean Water Act
cases against the Defendants on April 1,
2016. The United States District Court
for the District of Maine consolidated
these actions on May 7, 2019. The
complaints alleged that the Defendants,
Grimmel Industries, Inc., Grimmel
Industries LLC, Gary Grimmel, and
Kennebec Scrap Iron, Inc., violated the
stormwater Multi-Sector General
Permits (‘‘MSGPs’’) issued by the Maine
Department of Environmental Protection
under Section 402(b) of the Clean Water
Act, 42 U.S.C. 1342(b). The complaints
sought civil penalties and injunctive
relief for alleged violations of the
permits at scrap metal facilities operated
by Defendants located at 80 Pejepscot
Village, Topsham, Maine, 50 River
Road, Lewiston, Maine, and 48
Broomhandle Road, Oakland, Maine
(the ‘‘Facilities’’). The alleged violations
included inadequate stormwater
pollution prevention plans; failure to
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Frm 00086
Fmt 4703
Sfmt 4703
effectively maintain stormwater best
management practices; failure to
perform good housekeeping procedures;
failure to conduct or properly conduct
benchmark monitoring and quarterly
visual monitoring; failure to properly
perform monitoring as ordered by the
Maine Department of Environmental
Protection; failure to conduct quarterly
site evaluations; and failure to properly
train employees. The Grimmel
Industries complaint also alleged
failures to comply with Spill Prevention
Control and Countermeasure (‘‘SPCC’’)
requirements under 40 CFR part 112.
Under the Proposed Consent Decree,
the United States will dismiss
Defendant Gary Grimmel without
prejudice. The remaining Defendants
must revise their stormwater
management plans and revise sampling
procedures at the Facilities in
accordance with the current stormwater
permit issued by the Maine Department
of Environmental Protection. The
remaining Defendants must pay
$250,000 in civil penalties, $25,000 of
which will be allocated to the Oil Spill
Liability Trust Fund in satisfaction of
the alleged violations of the SPCC
regulations. Under the proposed consent
decree, the United States covenants not
to sue the Defendants under Sections
309(b), 309(g), or 311(b)(6)–(7)(C) of the
Clean Water Act, 33 U.S.C. 1319(b),
1319(g) and 1321(b)(6)–(7)(C), for civil
violations at the Facilities through the
date of lodging of the consent decree
related to the MSGPs, or of the SPCC
regulations promulgated at 40 CFR part
112.
The publication of this notice opens
a period for public comment on the
proposed consent decree. Comments
should be addressed to the Assistant
Attorney General, Environment and
Natural Resources Division,
Environmental Enforcement Section,
and should refer to United States v.
Grimmel Industries, Inc., et al., D.J. Ref.
No. 90–5–1–1–11209. All comments
must be submitted no later than thirty
(30) days after the publication date of
this notice. Comments may be
submitted either by email or by mail:
To submit
comments:
Send them to:
By email .......
pubcomment-ees.enrd@
usdoj.gov.
Assistant Attorney General,
U.S. DOJ—ENRD, P.O.
Box 7611, Washington, DC
20044–7611.
By mail .........
During the public comment period,
the consent decree may be examined
and downloaded at this Justice
Department website: https://
E:\FR\FM\20FEN1.SGM
20FEN1
]]>Agencies
[Federal Register Volume 85, Number 34 (Thursday, February 20, 2020)]
[Notices]
[Pages 9803-9806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03346]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1139]
Certain Electronic Nicotine Delivery Systems and Components
Thereof; Commission Determination to Review the Final Initial
Determination in Part and To Affirm the Finding of a Violation of
Section 337; Schedule for Filing Written Submissions on Remedy, the
Public Interest and Bonding; Extension of the Target Date
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review the presiding administrative law
judge's (``ALJ'') final initial determination (``ID'') in part. On
review, the Commission affirms the ID's finding of a violation of
section 337 in the above-captioned investigation. The Commission
requests written submissions from the parties, interested government
agencies, and interested persons on the issues of remedy, the public
interest, and bonding concerning respondent Eonsmoke, LLC
(``Eonsmoke'') and defaulting respondent XFire, Inc. (``XFire''). The
Commission has also determined to extend the target date for completion
of the above-captioned investigation to Monday, April 20, 2020.
FOR FURTHER INFORMATION CONTACT: Cathy Chen, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone 202-205-2392. Copies of non-
confidential
[[Page 9804]]
documents filed in connection with this investigation are or will be
available for inspection during official business hours (8:45 a.m. to
5:15 p.m.) in the Office of the Secretary, U.S. International Trade
Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-
2000. General information concerning the Commission may also be
obtained by accessing its internet server at https://www.usitc.gov. The
public record for this investigation may be viewed on the Commission's
electronic docket (EDIS) at https://edis.usitc.gov. Hearing-impaired
persons are advised that information on this matter can be obtained by
contacting the Commission's TDD terminal on (202) 205-1810.
SUPPLEMENTARY INFORMATION: On December 13, 2018, the Commission
instituted this investigation under section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, based on a complaint filed on behalf
of Juul Labs, Inc. (``JLI'') of San Francisco, California. 83 FR 64156
(Dec. 13, 2018). The complaint, as amended and supplemented, alleges
violations of section 337 based upon the importation into the United
States, the sale for importation, and the sale within the United States
after importation of certain electronic nicotine delivery systems and
components thereof by reason of infringement of certain claims of U.S.
Patent Nos.: 10,070,669 (``the '669 patent''); 10,076,139 (``the '139
patent''); 10,045,568 (``the '568 patent''); 10,058,130 (``the '130
patent''); and 10,104,915 (``the '915 patent'') (collectively, ``the
Asserted Patents''). Id. The Commission's notice of investigation named
twenty-one respondents, including Eonsmoke of Clifton, New Jersey and
XFire of Stafford, Texas. Id. at 64157. The Office of Unfair Import
Investigations (``OUII'') is also a party to the investigation.
On February 25, 2019, the ALJ granted JLI's motion to amend the
complaint and notice of investigation to change the name of respondent
Bo Vaping of Garden City, New York to ECVD/MMS Wholesale LLC of Garden
City, New York and the name of respondent MMS Distribution LLC of Rock
Hill, New York to MMS/ECVD LLC of Garden City, New York. See Order No.
8 (Feb. 25, 2019), not rev'd by Comm'n Notice (Mar. 25, 2019).
On February 28, 2019, the ALJ granted a motion to amend the
complaint and notice of investigation to change the name of respondent
Limitless Mod Co. of Simi Valley, California to Limitless MOD, LLC of
Simi Valley, California. See Order No. 10 (Feb. 28, 2019), not rev'd by
Comm'n Notice (Mar. 27, 2019).
Before the evidentiary hearing, JLI settled with the following
eight respondents: J Well France S.A.S. of Paris, France; ECVD/MMS
Wholesale LLC; MMS/ECVD LLC; The Electric Tobacconist, LLC of Boulder,
Colorado; ALD Group Limited of Guangdong Province, China; Flair Vapor
LLC of South Plainfield, New Jersey; Shenzhen Joecig Techonology Co.,
Ltd. of Guangdong Province, China; and Myle Vape Inc. of Jamaica, New
York. See Order No. 31 (July 30, 2019), not rev'd by Comm'n Notice
(Aug. 23, 2019); Order No. 16 (Mar. 21, 2019), not rev'd by Comm'n
Notice (Apr. 4, 2019); Order No. 33 (July 30, 2019), not rev'd by
Comm'n Notice (Aug. 23, 2019); Order No. 13 (Mar. 12, 2019), not rev'd
by Comm'n Notice (Apr. 5, 2019); Order No. 34 (July 30, 2019), not
rev'd by Comm'n Notice (Aug. 23, 2019); Order No. 32 (July 30, 2019),
not rev'd by Comm'n Notice (Aug. 23, 2019).
In addition, the investigation terminated as to the following six
respondents based on a consent order stipulation and the issuance of a
consent order: Vapor Hub International, Inc. of Simi Valley,
California; Limitless MOD, LLC; Asher Dynamics, Inc. of Chino,
California; Ply Rock of Chino, California; Infinite-N Technology
Limited of Guangdong Province, China; and King Distribution LLC of
Elmwood Park, New Jersey. See Order No. 9 (Feb. 27, 2019), not rev'd by
Comm'n Notice (Mar. 27, 2019); Order No. 11 (Feb. 28, 2019), not rev'd
by Comm'n Notice (Mar. 26, 2019); Order No. 18 (Mar. 28, 2019), not
rev'd by Comm'n Notice (Apr. 11, 2019); Order No. 20 (Apr. 2, 2019),
not rev'd by Comm'n Notice (Apr. 15, 2019).
On April 23, 2019, the ALJ found respondent XFire in default
pursuant to Commission Rule 210.16(b), 19 CFR 210.16(b). See Order No.
22 (Apr. 23, 2019), not rev'd by Comm'n Notice (May 16, 2019).
Also, prior to the evidentiary hearing, the ALJ granted JLI's
motion for partial termination of the investigation with respect to
allegations of infringement as to all asserted claims of the '139
patent and certain asserted claims of the other asserted patents. See
Order No. 36 (Aug. 8, 2019), not rev'd by Comm'n Notice (Sep. 5, 2019).
As a result, the following claims remain at issue in the investigation:
Claims 1, 2, and 13 of the '669 patent; claims 12, 17, and 20 of the
'568 patent; claims 1, 2, and 4 of the '130 patent; and claims 1, 6,
and 21 of the '915 patent (collectively, ``the Asserted Claims'').
JLI and the Commission were unable to serve respondent Keep Vapor
Electronic Tech. Co., Ltd. of Shenzhen, China despite multiple attempts
at service. The final ID states that JLI does not request any relief
against this respondent. See ID at 2 n.1.
On May 21, 2019, the ALJ granted a motion to amend the complaint
and notice of investigation to change the name of respondent Ziip Lab
Co., Ltd. of Guangdong Province, China to SS Group Holdings of
Guangdong Province, China. See Order No. 26 (May 21, 2019), not rev'd
by Comm'n Notice (June 14, 2019).
Only five respondents participated in the evidentiary hearing: SS
Group Holdings; ZLab S.A. of Punta del Este--Maldonado, Uruguay;
Shenzhen Yibo Technology Co. Ltd. of Guangdong Province, China
(collectively, ``the Ziip Respondents''); Vapor 4 Life Holdings, Inc.
of Northbrook, Illinois (``V4L''); and Eonsmoke.
On August 5, 2019, one day before the prehearing conference, the
ALJ issued an ID (Order No. 35), granting JLI's motion for summary
determination of importation, infringement, and domestic industry. The
ALJ found that JLI was entitled to summary determination of importation
with respect to the Ziip Respondents and their accused products;
Eonsmoke and its accused products; and V4L and certain V4L accused
products. See Order No. 35 at 4-11 (Aug. 5, 2019). Citing to a
stipulation between JLI and the Ziip Respondents, the ALJ stated in his
infringement analysis with respect to the Ziip Respondents' accused
products that ``the question of whether Ziip accused products contain
or perform each limitation of asserted claims is moot.'' Id. at 11. The
ALJ did not specifically state whether summary determination of
infringement as to the Ziip Respondents was denied or granted nor the
reasoning supporting grant or denial of the motion as to this issue.
Id.
An evidentiary hearing was held from August 6-7, 2019.
On September 4, 2019 the Commission reviewed Order No. 35 in part.
Specifically, the Commission reviewed the ALJ's analysis as to
infringement and a statement regarding mootness on page 11 of the ID.
The Commission remanded to the ALJ for clarification on this issue and
as to whether the ID grants or denies summary determination that the
Ziip Respondents infringe the Asserted Patents. See Comm'n Notice (Sep.
4, 2019).
In response to the Commission's September 4, 2019 Notice, the ALJ
clarified that Order No. 35 denied
[[Page 9805]]
summary determination of infringement as to the Ziip Respondents
because that issue was moot in light of the stipulation between JLI and
the Ziip Respondents. See Remand of Order No. 35 (Oct. 10, 2019).
On November 19, 2019, the ALJ granted motions to terminate the
investigation as to the Ziip Respondents and V4L based on settlement
agreements. See Order Nos. 38 and 39 (Nov. 19, 2019), not rev'd by
Comm'n Notice (Dec. 16, 2019). Accordingly, only respondent Eonsmoke
remains active in this investigation.
On December 12, 2019, the ALJ granted JLI's motion to strike
portions of the Ziip Respondents' and Eonsmoke's posthearing briefs.
See Order No. 40 (Dec. 12, 2019). Specifically, these portions relate
to the issue of invalidity of asserted claim 4 of the '915 patent,
which was not addressed by Respondents' expert or in their prehearing
briefings. Id. at 3-5.
On December 13, 2019, the ALJ issued a combined final ID and
recommended determination (``RD''), finding a violation of section 337
by respondent Eonsmoke. Specifically, the final ID finds, inter alia,
that JLI satisfied the importation requirement as to Eonsmoke's accused
products; that JLI has shown Eonsmoke's accused products infringe the
Asserted Claims; that JLI has satisfied the domestic industry
requirement with respect to the Asserted Patents; and that the Asserted
Claims have not been shown to be invalid. In addition, in the event the
Commission finds a violation of section 337, the RD recommends that the
Commission issue a limited exclusion order (``LEO'') and cease and
desist orders (``CDO'') directed at Eonsmoke and defaulting respondent
XFire, and impose a 100 percent bond during the period of Presidential
review.
No petitions for review were filed, which means each party has
abandoned all issues decided adversely to that party. See 19 CFR
210.43(b)(4).
Having reviewed the record of this investigation, including the
final ID, the Commission has determined to sua sponte review the final
ID in part. 19 CFR 210.44. Specifically, the Commission has determined
to review and, on review, decline to adopt the discussion of the
validity of element [c] of claim 12 of the '669 patent on pages 50 and
55 of the final ID. The Commission has also determined to review the
discussion of Warranty and Customer Support and Regulatory Compliance
on pages 265-266 of the final ID and the discussion of the quantitative
significance of JLI's contract manufacturers' investments in the last
paragraph on page 272 of the final ID. The Commission has determined
not to review the remainder of the final ID, including the other
portions of the ID's domestic industry analysis, which are sufficient
to support the ID's finding that JLI has satisfied the domestic
industry requirement under subparagraphs 337(a)(3)(A) and (B) with
respect to the Asserted Patents. Accordingly, the Commission finds a
violation of section 337 by reason of Eonsmoke's importation of
electronic nicotine delivery systems and components thereof that
infringe one or more of claims 1, 2, and 13 of the '669 patent; claims
12, 17, and 20 of the '568 patent; claims 1, 2, and 4 of the '130
patent; and claims 1, 6, and 21 of the '915 patent. The Commission also
finds that JLI is entitled to relief against defaulting respondent
XFire pursuant to 19 U.S.C. 1337(g)(1).
The Commission has determined to extend the target date for
completion of the investigation to Monday, April 20, 2020.
In connection with the final disposition of this investigation, the
statute authorizes issuance of (1) an order that could result in the
exclusion of the subject articles from entry into the United States,
and/or (2) cease and desist order(s) that could result in the
respondent(s) being required to cease and desist from engaging in
unfair acts in the importation and sale of such articles. Accordingly,
the Commission is interested in receiving written submissions that
address the form of remedy, if any, that should be ordered. If a party
seeks exclusion of an article from entry into the United States for
purposes other than entry for consumption, the party should so indicate
and provide information establishing that activities involving other
types of entry either are adversely affecting it or likely to do so.
For background, see Certain Devices for Connecting Computers via
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op.
at 7-10 (Dec. 1994). In addition, if a party seeks issuance of any
cease and desist orders, the written submissions should address that
request in the context of recent Commission opinions, including those
in Certain Arrowheads with Deploying Blades and Components Thereof and
Packaging Therefor, lnv. No. 337-TA-977, Comm'n Op. (Apr. 28, 2017) and
Certain Electric Skin Care Devices, Brushes and Chargers Therefor, and
Kits Containing the Same, lnv. No. 337-TA-959, Comm'n Op. (Feb. 13,
2017). Specifically, if Complainant seeks a cease and desist order
against a respondent, the written submissions should respond to the
following requests:
1. Please identify with citations to the record any information
regarding commercially significant inventory in the United States as to
each respondent against whom a cease and desist order is sought. If
Complainant also relies on other significant domestic operations that
could undercut the remedy provided by an exclusion order, please
identify with citations to the record such information as to each
respondent against whom a cease and desist order is sought.
2. ln relation to the infringing products, please identify any
information in the record, including allegations in the pleadings, that
addresses the existence of any domestic inventory, any domestic
operations, or any sales-related activity directed at the United States
for each respondent against whom a cease and desist order is sought.
3. Please discuss any other basis upon which the Commission could
enter a cease and desist order.
The statute requires the Commission to consider the effects of any
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
would have on (1) the public health and welfare, (2) competitive
conditions in the U.S. economy, (3) U.S. production of articles that
are like or directly competitive with those that are subject to
investigation, and (4) U.S. consumers. The Commission is therefore
interested in receiving written submissions that address the
aforementioned public interest factors in the context of this
investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve,
disapprove, or take no action on the Commission's determination. See
Presidential Memorandum of July 21, 2005, 70 FR 43251 (July 26, 2005).
During this period, the subject articles would be entitled to enter the
United States under bond, in an amount determined by the Commission and
prescribed by the Secretary of the Treasury. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed if a remedy is ordered.
Written Submissions: Parties to the investigation, interested
government agencies, and any other interested parties are encouraged to
file written submissions on the issues of remedy, the public interest,
and bonding. Such
[[Page 9806]]
initial submissions should include views on the recommended
determination by the ALJ on remedy and bonding.
Complainant and the Commission Investigative Attorney are also
requested to identify the form of remedy sought and to submit proposed
remedial orders for the Commission's consideration in their initial
written submissions. Complainant is further requested to state the
dates that the Asserted Patents expire, the HTSUS numbers under which
the accused products are imported, and to supply the identification
information for all known importers of the products at issue in this
investigation. The written submissions and proposed remedial orders
must be filed no later than close of business on February 27, 2020.
Reply submissions must be filed no later than the close of business on
March 5, 2020. No further submissions on these issues will be permitted
unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above and submit 8
true paper copies to the Office of the Secretary by noon the next day
pursuant to Commission Rule 210.4(f), 19 CFR 210.4(f). Submissions
should refer to the investigation number (Inv. No. 337-TA-1139) in a
prominent place on the cover page and/or the first page. (See Handbook
for Electronic Filing Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions regarding
filing should contact the Secretary, (202) 205-2000.
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. A
redacted non-confidential version of the document must also be filed
simultaneously with any confidential filing. All information, including
confidential business information and documents for which confidential
treatment is properly sought, submitted to the Commission for purposes
of this investigation may be disclosed to and used: (i) By the
Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel, solely for cybersecurity purposes.
All contract personnel will sign appropriate nondisclosure agreements.
All nonconfidential written submissions will be available for public
inspection at the Office of the Secretary and on EDIS.
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 13, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-03346 Filed 2-19-20; 8:45 am]
BILLING CODE 7020-02-P
