Certain Foldable Reusable Drinking Straws and Components and Accessories Thereof; Commission Determination Not To Review an Initial Determination Granting a Motion for Partial Summary Determination and Finding a Violation of Section 337; Request for Written Submissions on Remedy, the Public Interest, and Bonding, 71942-71944 [2020-24984]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 85, Number 219 (Thursday, November 12, 2020)]
[Notices]
[Pages 71942-71944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24984]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1183]


Certain Foldable Reusable Drinking Straws and Components and 
Accessories Thereof; Commission Determination Not To Review an Initial 
Determination Granting a Motion for Partial Summary Determination and 
Finding a Violation of Section 337; Request for Written Submissions on 
Remedy, the Public Interest, and Bonding

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 not to review an initial determination 
(``ID'') (Order No. 18) of the presiding administrative law judge 
(``ALJ'') granting complainant's motion for partial summary 
determination and finding a violation of section 337. The Commission 
requests written submissions from the parties, interested government 
agencies, and interested persons on the issues of remedy, the public 
interest, and bonding, under the schedule set forth below.

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 documents filed in connection with this investigation may 
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help

[[Page 71943]]

accessing EDIS, please email [email protected]. General information 
concerning the Commission may also be obtained by accessing its 
internet server at https://www.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: The Commission instituted this investigation 
on November 13, 2019, based on a complaint filed on behalf of The Final 
Co. LLC (``Final'' or ``Complainant'') of Santa Fe, New Mexico. 84 FR 
61639 (Nov. 13, 2019). The complaint, as amended, alleges violations of 
section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337 
(``section 337''), in the importation into the United States, the sale 
for importation, or the sale within the United States after importation 
of certain foldable reusable drinking straws and components and 
accessories thereof by reason of infringement of claims 1-12, 14-17, 
and 20 of U.S. Patent No. 10,123,641 (``the '641 patent''). Id. The 
complaint further alleges that a domestic industry exists. Id. The 
Commission's notice of investigation names seventeen respondents, 
specifically, Huizhou Sinri Technology Company Limited of Guangdong, 
China; Hebei Serun Import and Export Trade Co., Ltd. of Hebei, China; 
Dongguan Stirling Metal Products Co., Ltd. of Guangdong, China; Ningbo 
Wwpartner Plastic Manufacture Co., Ltd. of Zhejiang, China; Shenzhen 
Yuanzhen Technology Co., Ltd. of Shenzhen, China; Jiangmen Boyan 
Houseware Co., Ltd. of Guangdong, China; Shanghai Rbin Industry And 
Trade Co., Ltd. of Shanghai, China; Jiangmen Shengke Hardware Products 
Co., Ltd. of Guangdong, China; Funan Anze Trading Co., Ltd. of Anhui, 
China; Hangzhou Keteng Trade Co., Ltd. of Zhejiang, China; Hunan Jiudi 
Shiye Import And Export Trading Co., Ltd. of Hunan, China (``Hunan 
Jiudi''); Shenzhen Yaya Gifts Co., Ltd. of Guangdong, China; Ningbo 
Weixu International Trade Co., Ltd. of Zhejiang, China (``Ningbo 
Weixu''); Ningbo Beland Commodity Co., Ltd. of Zhejiang, China; Xiamen 
One X Piece Imp. & Exp. Co., Ltd. of Fujian, China; Hunan Champion Top 
Technology Co., Ltd. of Hunan, China; and Yiwu Lizhi Trading Firm of 
Zhejiang, China. Id. at 61639-40. The Office of Unfair Import 
Investigations (``OUII'') is also named as a party in this 
investigation. Id. at 61640.
    The Commission previously terminated respondents Ningbo Weixu and 
Hunan Jiudi from the investigation based on Complainant's partial 
withdrawal of the complaint. See Order No. 7 (Feb. 13, 2019), 
unreviewed by Comm'n Notice (Mar. 9, 2020).
    On March 16, 2020, the Commission found the remaining fifteen 
respondents (collectively, the ``Defaulted Respondents'') in default. 
Order No. 8 (March 3, 2020), unreviewed by Notice (March 16, 2020).
    On April 7, 2020, Complainant filed a motion for summary 
determination of a violation of section 337 by the Defaulted 
Respondents. On May 5, 2020, Complainant filed a motion for leave to 
supplement the MSD, and the ALJ granted leave on May 8, 2020. On May 
27, 2020, OUII filed its response in support of Complainant's motion.
    On July 17, 2020, the ALJ issued Order No. 13, an ID granting in 
part the motion for summary determination. See Order No. 13 (July 17, 
2020). The ALJ found that Complainant established importation of the 
accused products and infringement of claims 1-12 and 14-17 of the '641 
patent by Defaulted Respondents and that Complainant satisfied the 
technical prong of the domestic industry requirement. The ALJ also 
found, however, that Complainant did not satisfy the economic prong of 
the domestic industry requirement, and so the ALJ did not find a 
violation of section 337 by the Defaulted Respondents. The Commission 
determined not to review Order No. 13. See Notice (Aug. 18, 2020).
    Also, on July 17, 2020, the ALJ issued Order No. 14, which required 
the parties to choose from several options on how to proceed. See Order 
No. 14, at 1-2 (July 17, 2020). On July 31, 2020, Complainant and OUII 
filed a joint response to Order No. 14. The joint response stated that 
Complainant would file an additional motion for summary determination 
on the remaining issues raised in the subject ID as well as a motion to 
amend the complaint to drop its assertion of claim 20 of the '641 
patent.
    On August 7, 2020, Complainant filed a motion for partial summary 
determination of the economic prong of the domestic industry 
requirement, a remedy in the form of a general exclusion order, and a 
bond of 100% during the Presidential review period. On August 14, 2020, 
Complainant moved to replace Exhibit 11C within its motion for summary 
determination, which was granted by the ALJ. See Order No. 16 (Aug. 20, 
2020). On August 24, 2020, OUII filed its response in support of 
Complainant's motion.
    On August 17, 2020, Complainant moved to terminate the 
investigation with respect to asserted claim 20 by reason of withdrawal 
of the complaint allegations. On August 26, 2020, the ALJ granted the 
motion to withdraw claim 20. See Order No. 17 (Aug. 26, 2020), 
unreviewed by Notice (Sep. 15, 2020).
    On September 22, 2020, the ALJ issued the subject ID granting 
Complainant's motion for partial summary determination that a domestic 
industry exists with respect to Complainant's research and development 
investments under section 337(a)(3)(C) and finding a violation of 
section 337 with respect to claims 1-12 and 14-17 of the '641 patent by 
the Defaulted Respondents. Order No. 18 also denied Complainant's 
motion for summary determination under section 337(a)(3)(B). The ALJ's 
denial of summary determination in Order No. 18 as to section 
337(a)(3)(B) is not an initial determination subject to Commission 
review and hence is not adopted by the Commission and is not a part of 
the Commission's determination. No petitions for review of the subject 
ID were filed.
    The ALJ concurrently issued a Recommended Determination (``RD'') on 
the issues of remedy and bonding. The RD recommends the issuance of a 
general exclusion order and setting the bond during the period of 
Presidential review in the amount of one hundred percent (100%) of the 
entered value.
    Having reviewed the record of the investigation, including the 
subject ID and the parties' submissions to the ALJ, the Commission has 
determined not to review the subject ID. Accordingly, the Commission 
adopts the ID's finding that a violation of section 337 has occurred in 
connection with claims 1-12 and 14-17 of the '641 patent.
    In connection with the final disposition of this investigation, the 
statute authorizes issuance of, inter alia, (1) an exclusion order that 
could result in the exclusion of the subject articles from entry into 
the United States; and/or (2) cease and desist orders that could result 
in the respondents 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

[[Page 71944]]

Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 
(Dec. 1994).
    The statute requires the Commission to consider the effects of that 
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 submissions should address the recommended 
determination by the ALJ on remedy and bonding.
    In their initial submissions, Complainant is also requested to 
identify the remedy sought and Complainant and OUII are requested to 
submit proposed remedial orders for the Commission's consideration. 
Complainant is further requested to state the date that the Asserted 
Patent expires, to provide the HTSUS subheadings 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 initial written submissions and proposed remedial 
orders must be filed no later than close of business on Monday, 
November 23, 2020. Reply submissions must be filed no later than the 
close of business on Monday, November 30, 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. The 
Commission's paper filing requirements in 19 CFR 210.4(f) are currently 
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the 
investigation number (Inv. No. 337-TA-1183) 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 on EDIS.
    The Commission vote for this determination took place on November 
5, 2020.
    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: November 5, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-24984 Filed 11-10-20; 8:45 am]
BILLING CODE 7020-02-P