Certain Vaporizer Cartridges and Components Thereof; Notice of Commission Determination To Review in Part an Initial Determination Granting a Motion for Summary Determination on Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding, 68684-68686 [2021-26248]
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68684
Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Notices
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1211]
Certain Vaporizer Cartridges and
Components Thereof; Notice of
Commission Determination To Review
in Part an Initial Determination
Granting a Motion for Summary
Determination on Violation of Section
337; Schedule for Filing Written
Submissions on Remedy, the Public
Interest, and Bonding
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘Commission’’) has
determined to review in part an initial
determination (‘‘ID’’) (Order No. 65) of
the presiding administrative law judge
(‘‘ALJ’’) granting a summary
determination on violation of section
337 by the respondents found in default
in the above-captioned investigation.
The Commission is requesting briefing
from the parties, interested government
agencies, and interested persons on the
issues of remedy, the public interest,
and bonding.
FOR FURTHER INFORMATION CONTACT:
Ronald A. Traud, Esq., Office of the
General Counsel, U.S. International
Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–3427. 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
accessing EDIS, please email
EDIS3Help@usitc.gov. 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: On August
14, 2020, the Commission instituted this
investigation based on a complaint, as
supplemented, filed on behalf of Juul
Labs, Inc. (‘‘JLI’’) of San Francisco,
California. 85 FR 49679 (Aug. 14, 2020).
The complaint, as supplemented,
alleges violations of section 337 of the
Tariff Act of 1930, as amended, 19
U.S.C. 1337, based upon the importation
into the United States, the sale for
importation, and the sale within the
United States after importation of
certain vaporizer cartridges and
components thereof by reason of
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SUMMARY:
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18:06 Dec 02, 2021
Jkt 256001
infringement of U.S. Design Patent Nos.
D842,536; D858,870; D858,869; and
D858,868 (collectively, the ‘‘Asserted
Patents’’). Id. The complaint further
alleges that a domestic industry exists.
Id. The Commission’s notice of
investigation names forty-nine
respondents, including: (1) 101 Smoke
Shop, Inc. of Los Angeles, California
(‘‘101 Smoke Shop’’); (2) Eon Pods LLC
of Jersey City, New Jersey (‘‘Eon Pods’’);
(3) Jem Pods, U.S.A. of Snellville,
Georgia (‘‘Jem Pods’’); (4) Sky
Distribution LLC of Addison, Illinois
(‘‘Sky Distribution’’); (5) Vapers &
Papers, LLC of Schenectady, New York
(‘‘Vapers & Papers’’); (6) Access Vapor
LLC d/b/a Cali Pods of Orlando, Florida
(‘‘Access Vapor’’); (7) eLiquid Stop of
Glendale, California (‘‘eLiquid Stop’’);
(8) Shenzhen Apoc Technology Co., Ltd.
of Shenzhen, China; (9) Shenzhen Ocity
Times Technology Co., Ltd. of
Shenzhen, China; (10) Evergreen
Smokeshop of Oakland, California
(‘‘Evergreen Smokeshop’’); (11)
Shenzhen Azure Tech USA LLC f/k/a
DS Vaping P.R.C. of Redding, California
(‘‘Shenzhen Azure’’); (12) DripTip
Vapes LLC of Plantation, Florida
(‘‘DripTip Vapes’’); (13) Modern Age
Tobacco of Gainesville, Florida
(‘‘Modern Age Tobacco’’); (14)
Dongguan Hengtai Biotechnology Co.,
Ltd. d/b/a Mr. Fog of Bensenville,
Illinois; (15) Shenzhen Yark Technology
Co., Ltd. of Shenzhen, China; (16)
Guangdong Cellular Workshop
Electronic Technology Co., Ltd. of
Dongguan City, China; (17) Shenzhen
Bauway Technology Ltd. of Shenzhen,
China; and (18) Shango Distribution
LLC d/b/a Puff E-Cig of Imlay City,
Michigan (‘‘Shango Distribution’’)
(collectively, the ‘‘Defaulting
Respondents’’). See id.; see also 85 FR
73748 (Nov. 19, 2020). The Office of
Unfair Import Investigations (‘‘OUII’’) is
also a party to the investigation. See 85
FR 49679. The complaint and notice of
investigation were later amended to,
inter alia, correct the names and
addresses of certain respondents. See 85
FR 73748
This investigation has previously
terminated as to twenty-nine
respondents pursuant to Commission
Rule 210.21(c) (19 CFR 210.21(c)) based
on consent orders; and one respondent
pursuant to Commission Rule 210.21(a)
(19 CFR 210.21(a)) due to JLI’s failure to
serve that entity with the Complaint and
Notice of Investigation. Order No. 23
(Oct. 29, 2020) (terminating and issuing
consent order to Midwest Goods),
unreviewed by Notice (Nov. 18, 2020);
Order Nos. 26–29 (Dec. 8, 2020)
(terminating and issuing consent orders
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to Vape ’N Glass, Vaperistas, Aqua
Haze, and 2nd Wife Vape), unreviewed
by Notice (Dec. 22, 2020); Order Nos. 30
& 31 (Dec. 10, 2020) (terminating and
issuing consent orders to EZFumes and
eJuiceDB), unreviewed by Notice (Jan. 4,
2021); Order No. 32 (Dec. 14, 2020)
(terminating and issuing a consent order
to JC Pods), unreviewed by Notice (Jan.
4, 2021); Order Nos. 33 & 34 (Dec. 15,
2020) (terminating and issuing consent
orders to Tobacco Alley and
WeVapeUSA), unreviewed by Notice
(Jan. 5, 2021); Order No. 37 (Dec. 30,
2020) (terminating and issuing a consent
order to Vape Central Group),
unreviewed by Notice (Jan. 21, 2021);
Order No. 38 (Jan. 5, 2021) (terminating
and issuing a consent order to Ana
Equity), unreviewed by Notice (Jan. 21,
2021); Order Nos. 40–42 (Feb. 1, 2021)
(terminating and issuing consent orders
to eCig-City, All Puff Store, and
Wireless N Vapor Citi), unreviewed by
Notice (Feb. 16, 2021); Order Nos. 43–
48 (Feb. 2, 2021) (terminating and
issuing consent orders to JUULSite,
Alternative Pods, Limitless Accessories,
Price Point, Naturally Peaked Health,
and Smoker’s Express), unreviewed by
Notice (Feb. 22, 2021); Order Nos. 49 &
50 (Feb. 3, 2021) (terminating and
issuing consent orders to Kind Group
and CaryTown), unreviewed by Notice
(Feb. 22, 2021); Order Nos. 53 & 54 (Feb.
17, 2021) (terminating and issuing
consent orders to Cigar Road and
Nilkant), unreviewed by Notice (Mar. 15,
2021); Order No. 58 (Mar. 18, 2021)
(terminating and issuing a consent order
to Cloud 99 Vapes), unreviewed by
Notice (Apr. 2, 2021); Order No. 60
(Apr. 9, 2021) (terminating and issuing
a consent order to Canal Smoke),
unreviewed by Notice, (Apr. 22, 2021);
Order No. 61 (Apr. 28, 2021)
(terminating and issuing a consent order
to Perfect Vape), unreviewed by Notice
(May 17, 2021); Order No. 51 (Feb. 8,
2021) (terminating investigation as to
Keep Vapor), unreviewed by Notice
(Feb. 22, 2021). Additionally, Access
Vapor LLC and Cali Pods were
originally identified as two distinct
respondents, see 85 FR at 49679–80,
however, Cali Pods is a business alias of
Access Vapor, see ID at 2, n.1.
On March 19, 2021, pursuant to
Commission Rule 210.18 (19 CFR
210.18), JLI filed a motion for summary
determination that the Defaulting
Respondents have violated section 337
through the importation into the United
States, sale for importation into the
United States, and/or sale within the
United States after importation of
certain vaporizer cartridges and
components thereof that infringe the
E:\FR\FM\03DEN1.SGM
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Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Notices
Asserted Patents. On April 7, 2021, OUII
filed a response in support of JLI’s
motion.
On October 14, 2021, the ALJ issued
the subject ID, Order No. 65, granting
the motion for summary determination
on violation. Specifically, the ID finds,
inter alia: (1) That JLI established the
importation requirement as to each
Defaulting Respondent; (2) that JLI
established infringement as to the
accused products and the Asserted
Patents; and (3) that JLI satisfied the
domestic industry requirement for each
Asserted Patent. The ALJ’s
Recommended Determination (‘‘RD’’) on
remedy and bonding recommended that
the Commission issue a general
exclusion order and impose a 100
percent bond during the period of
Presidential review. The RD also
recommends that the Commission issue
cease and desist orders directed to the
domestic Defaulting Respondents,
namely, 101 Smoke Shop, Eon Pods,
Jem Pods, Sky Distribution, Vapers &
Papers, Access Vapor, eLiquid Stop,
Evergreen Smokeshop, Shenzhen Azure,
DripTip Vapes, Modern Age Tobacco,
and Shango Distribution.
No party filed a petition for review of
the subject ID. The Commission did not
receive briefing on the public interest in
response to either Commission Rule
210.50(a)(4) (19 CFR 210.50(a)(4)) or the
Federal Register notice published
following issuance of the subject ID and
RD. 86 FR 58099 (Oct. 20, 2021).
Having examined the record in this
investigation, including the ID, the
Commission has determined to review
in part the ID. The Commission’s review
is limited to the economic prong of the
domestic industry requirement.
In connection with the final
disposition of this investigation, the
Commission may (1) issue an order that
results in the exclusion of the subject
articles from entry into the United
States, and/or (2) issue one or more
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
Lines, Inv. No. 337–TA–360, USITC
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18:06 Dec 02, 2021
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Pub. No. 2843, Comm’n Op. at 7–10
(December 1994) (Commission
Opinion).
When the Commission contemplates
some form of remedy, it must consider
the effects of that remedy upon the
public interest. The factors the
Commission will consider include the
effect that an exclusion order and/or
cease and desist orders 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.
When 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
section 337(j), 19 U.S.C. 1337(j) and the
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. 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 RD on
remedy and bonding. The Commission
is not requesting briefing on the issue
under review (i.e., the economic prong
of the domestic industry requirement).
In their initial submissions,
Complainant and OUII are also
requested to identify the remedy sought
and to submit proposed remedial orders
for the Commission’s consideration.
Complainant is further requested to
state the date that the asserted patents
expire, 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 December 13,
2021. Reply submissions must be filed
no later than the close of business on
December 20, 2021. No further
submissions on these issues will be
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68685
permitted unless otherwise ordered by
the Commission. Opening submissions
are limited to 25 pages. Reply
submissions are limited to 20 pages. No
further submissions on any of 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–1211) 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 by marking each document
with a header indicating that the
document contains confidential
information. This marking will be
deemed to satisfy the request procedure
set forth in Rules 201.6(b) and
210.5(e)(2) (19 CFR 201.6(b) &
210.5(e)(2)). 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,
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
29, 2021.
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
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Federal Register / Vol. 86, No. 230 / Friday, December 3, 2021 / Notices
210 of the Commission’s Rules of
Practice and Procedure (19 CFR part
210).
By order of the Commission.
Issued: November 29, 2021.
William Bishop,
Supervisory Hearings and Information
Officer.
[FR Doc. 2021–26248 Filed 12–2–21; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
jspears on DSK121TN23PROD with NOTICES1
Notice of Lodging of Proposed
Consent Decree Under the Oil
Pollution Act
On November 30, 2021, the
Department of Justice and the Texas
Office of the Attorney General filed a
civil Complaint and lodged a proposed
Consent Decree with the United States
District Court for the Southern District
of Texas in the lawsuit entitled United
States of America and State of Texas v.
Kirby Inland Marine, LP, Civil Action
No. 3:21–cv–00335. The United States is
acting at the request of the designated
federal trustees for natural resources:
The Department of Commerce through
the National Oceanic and Atmospheric
Administration and the United States
Department of the Interior through the
United States Fish and Wildlife Service
and the National Park Service. The State
of Texas is acting through its designated
State trustees: The Texas General Land
Office, the Texas Commission on
Environmental Quality, and the Texas
Parks and Wildlife Department.
This is a civil action brought against
Defendant Kirby Inland Marine, LP for
recovery of damages for injury to,
destruction of, loss of, or loss of use of
natural resources, under Section 1002 of
the Oil Pollution Act, 33 U.S.C. 2702.
The United States and Texas seek
damages in order to compensate for and
restore natural resources injured by
Kirby’s oil discharge that occurred in
the Houston Ship Channel at the Texas
City ‘‘Y’’ crossing on March 22, 2014.
The United States and the State also
seek to recover unreimbursed costs of
assessing such injuries.
The Complaint in this natural
resource damages case was filed against
Kirby concurrently with the lodging of
the proposed Consent Decree. The
Complaint alleges that Kirby is liable for
damages under the Oil Pollution Act.
The Complaint alleges that oil was
discharged from a Kirby barge during a
collision in the Ship Channel and that
natural resources were injured as a
result of the discharge.
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18:06 Dec 02, 2021
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Kirby will pay $15,334,768.83 under
the proposed Consent Decree. Of this
total, $15.3 million is designated for the
trustees to restore, replace, or acquire
the equivalent of the natural resources
allegedly injured, destroyed, or lost as a
result of the oil spill, and the remaining
amount will go to reimburse the trustees
for their remaining unpaid assessment
costs.
The publication of this notice opens
a period for public comment on the
proposed Consent Decree. Comments
should be addressed to the Acting
Assistant Attorney General,
Environment and Natural Resources
Division, and should refer to United
States of America and State of Texas v.
Kirby Inland Marine, LP, D.J. Ref. No.
90–5–1–1–11096/1. All comments must
be submitted no later than thirty (30)
days after the publication date of this
notice. Comments may be submitted by
either 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 proposed Consent Decree may be
examined and downloaded at this
Justice Department website: https://
www.justice.gov/enrd/consent-decrees.
We will provide a paper copy of the
proposed Consent Decree upon written
request and payment of reproduction
costs. Please mail your request and
payment to:Consent Decree Library,U.S.
DOJ—ENRD,P.O. Box 7611,Washington,
DC 20044–7611.
Please enclose a check or money order
for $6.75 (25 cents per page
reproduction cost) payable to the United
States Treasury.
Thomas Carroll,
Assistant Section Chief,Environmental
Enforcement Section,Environment and
Natural Resources Division.
[FR Doc. 2021–26307 Filed 12–2–21; 8:45 am]
BILLING CODE 4410–CW–P
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NATIONAL FOUNDATION FOR THE
ARTS AND THE HUMANITIES
Institute of Museum and Library
Services
Information Collection: Improving
Customer Experience (OMB Circular
A–11, Section 280 Implementation)
Institute of Museum and
Library Services, National Foundation
for the Arts and the Humanities.
ACTION: Notice; request for comment.
AGENCY:
The Institute of Museum and
Library Services (IMLS) has under OMB
review the following proposed
Information Collection Request
‘‘Improving Customer Experience (OMB
Circular A–11, Section 280
Implementation)’’ for approval under
the Paperwork Reduction Act (PRA).
This program helps to ensure that
requested data can be provided in the
desired format, reporting burden (time
and financial resources) is minimized,
collection instruments are clearly
understood, and the impact of collection
requirements on respondents can be
properly assessed. This Notice proposes
a generic clearance to gather customer
and stakeholder feedback via customer
interviews, feedback surveys, and rapid
feedback user testing of website
experiences in order to improve
customer experience with IMLS services
of various kinds. For more information
on the types of proposed information
collection requests IMLS may make
under this clearance, contact the
individual listed below in the FOR
FURTHER INFORMATION CONTACT section of
this Notice.
DATES: Submit comments on or before
January 2, 2022.
ADDRESSES: Submit comments
identified by Information Collection
3137–NEW, Improving Customer
Experience (OMB Circular A–11,
Section 280 Implementation) to
www.reginfo.gov/public/do/PRAMain.
Find this particular information
collection request by selecting ‘‘Institute
of Museum and Library Services’’ under
‘‘Currently Under Review;’’ then check
‘‘Only Show ICR for Public Comment’’
checkbox. Once you have found this
information collection request, select
‘‘Comment,’’ and enter or upload your
comment and information.
Alternatively, please mail your written
comments to Office of Information and
Regulatory Affairs, Attn.: OMB Desk
Officer for Education, Office of
Management and Budget, Room 10235,
Washington, DC 20503, or call (202)
395–7316.
SUMMARY:
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]]>Agencies
[Federal Register Volume 86, Number 230 (Friday, December 3, 2021)]
[Notices]
[Pages 68684-68686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26248]
[[Page 68684]]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1211]
Certain Vaporizer Cartridges and Components Thereof; Notice of
Commission Determination To Review in Part an Initial Determination
Granting a Motion for Summary Determination on Violation of Section
337; Schedule for Filing Written Submissions on Remedy, the Public
Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to review in part an initial
determination (``ID'') (Order No. 65) of the presiding administrative
law judge (``ALJ'') granting a summary determination on violation of
section 337 by the respondents found in default in the above-captioned
investigation. The Commission is requesting briefing from the parties,
interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3427. 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 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: On August 14, 2020, the Commission
instituted this investigation based on a complaint, as supplemented,
filed on behalf of Juul Labs, Inc. (``JLI'') of San Francisco,
California. 85 FR 49679 (Aug. 14, 2020). The complaint, as
supplemented, alleges violations of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, based upon the importation into the
United States, the sale for importation, and the sale within the United
States after importation of certain vaporizer cartridges and components
thereof by reason of infringement of U.S. Design Patent Nos. D842,536;
D858,870; D858,869; and D858,868 (collectively, the ``Asserted
Patents''). Id. The complaint further alleges that a domestic industry
exists. Id. The Commission's notice of investigation names forty-nine
respondents, including: (1) 101 Smoke Shop, Inc. of Los Angeles,
California (``101 Smoke Shop''); (2) Eon Pods LLC of Jersey City, New
Jersey (``Eon Pods''); (3) Jem Pods, U.S.A. of Snellville, Georgia
(``Jem Pods''); (4) Sky Distribution LLC of Addison, Illinois (``Sky
Distribution''); (5) Vapers & Papers, LLC of Schenectady, New York
(``Vapers & Papers''); (6) Access Vapor LLC d/b/a Cali Pods of Orlando,
Florida (``Access Vapor''); (7) eLiquid Stop of Glendale, California
(``eLiquid Stop''); (8) Shenzhen Apoc Technology Co., Ltd. of Shenzhen,
China; (9) Shenzhen Ocity Times Technology Co., Ltd. of Shenzhen,
China; (10) Evergreen Smokeshop of Oakland, California (``Evergreen
Smokeshop''); (11) Shenzhen Azure Tech USA LLC f/k/a DS Vaping P.R.C.
of Redding, California (``Shenzhen Azure''); (12) DripTip Vapes LLC of
Plantation, Florida (``DripTip Vapes''); (13) Modern Age Tobacco of
Gainesville, Florida (``Modern Age Tobacco''); (14) Dongguan Hengtai
Biotechnology Co., Ltd. d/b/a Mr. Fog of Bensenville, Illinois; (15)
Shenzhen Yark Technology Co., Ltd. of Shenzhen, China; (16) Guangdong
Cellular Workshop Electronic Technology Co., Ltd. of Dongguan City,
China; (17) Shenzhen Bauway Technology Ltd. of Shenzhen, China; and
(18) Shango Distribution LLC d/b/a Puff E-Cig of Imlay City, Michigan
(``Shango Distribution'') (collectively, the ``Defaulting
Respondents''). See id.; see also 85 FR 73748 (Nov. 19, 2020). The
Office of Unfair Import Investigations (``OUII'') is also a party to
the investigation. See 85 FR 49679. The complaint and notice of
investigation were later amended to, inter alia, correct the names and
addresses of certain respondents. See 85 FR 73748
This investigation has previously terminated as to twenty-nine
respondents pursuant to Commission Rule 210.21(c) (19 CFR 210.21(c))
based on consent orders; and one respondent pursuant to Commission Rule
210.21(a) (19 CFR 210.21(a)) due to JLI's failure to serve that entity
with the Complaint and Notice of Investigation. Order No. 23 (Oct. 29,
2020) (terminating and issuing consent order to Midwest Goods),
unreviewed by Notice (Nov. 18, 2020); Order Nos. 26-29 (Dec. 8, 2020)
(terminating and issuing consent orders to Vape 'N Glass, Vaperistas,
Aqua Haze, and 2nd Wife Vape), unreviewed by Notice (Dec. 22, 2020);
Order Nos. 30 & 31 (Dec. 10, 2020) (terminating and issuing consent
orders to EZFumes and eJuiceDB), unreviewed by Notice (Jan. 4, 2021);
Order No. 32 (Dec. 14, 2020) (terminating and issuing a consent order
to JC Pods), unreviewed by Notice (Jan. 4, 2021); Order Nos. 33 & 34
(Dec. 15, 2020) (terminating and issuing consent orders to Tobacco
Alley and WeVapeUSA), unreviewed by Notice (Jan. 5, 2021); Order No. 37
(Dec. 30, 2020) (terminating and issuing a consent order to Vape
Central Group), unreviewed by Notice (Jan. 21, 2021); Order No. 38
(Jan. 5, 2021) (terminating and issuing a consent order to Ana Equity),
unreviewed by Notice (Jan. 21, 2021); Order Nos. 40-42 (Feb. 1, 2021)
(terminating and issuing consent orders to eCig-City, All Puff Store,
and Wireless N Vapor Citi), unreviewed by Notice (Feb. 16, 2021); Order
Nos. 43-48 (Feb. 2, 2021) (terminating and issuing consent orders to
JUULSite, Alternative Pods, Limitless Accessories, Price Point,
Naturally Peaked Health, and Smoker's Express), unreviewed by Notice
(Feb. 22, 2021); Order Nos. 49 & 50 (Feb. 3, 2021) (terminating and
issuing consent orders to Kind Group and CaryTown), unreviewed by
Notice (Feb. 22, 2021); Order Nos. 53 & 54 (Feb. 17, 2021) (terminating
and issuing consent orders to Cigar Road and Nilkant), unreviewed by
Notice (Mar. 15, 2021); Order No. 58 (Mar. 18, 2021) (terminating and
issuing a consent order to Cloud 99 Vapes), unreviewed by Notice (Apr.
2, 2021); Order No. 60 (Apr. 9, 2021) (terminating and issuing a
consent order to Canal Smoke), unreviewed by Notice, (Apr. 22, 2021);
Order No. 61 (Apr. 28, 2021) (terminating and issuing a consent order
to Perfect Vape), unreviewed by Notice (May 17, 2021); Order No. 51
(Feb. 8, 2021) (terminating investigation as to Keep Vapor), unreviewed
by Notice (Feb. 22, 2021). Additionally, Access Vapor LLC and Cali Pods
were originally identified as two distinct respondents, see 85 FR at
49679-80, however, Cali Pods is a business alias of Access Vapor, see
ID at 2, n.1.
On March 19, 2021, pursuant to Commission Rule 210.18 (19 CFR
210.18), JLI filed a motion for summary determination that the
Defaulting Respondents have violated section 337 through the
importation into the United States, sale for importation into the
United States, and/or sale within the United States after importation
of certain vaporizer cartridges and components thereof that infringe
the
[[Page 68685]]
Asserted Patents. On April 7, 2021, OUII filed a response in support of
JLI's motion.
On October 14, 2021, the ALJ issued the subject ID, Order No. 65,
granting the motion for summary determination on violation.
Specifically, the ID finds, inter alia: (1) That JLI established the
importation requirement as to each Defaulting Respondent; (2) that JLI
established infringement as to the accused products and the Asserted
Patents; and (3) that JLI satisfied the domestic industry requirement
for each Asserted Patent. The ALJ's Recommended Determination (``RD'')
on remedy and bonding recommended that the Commission issue a general
exclusion order and impose a 100 percent bond during the period of
Presidential review. The RD also recommends that the Commission issue
cease and desist orders directed to the domestic Defaulting
Respondents, namely, 101 Smoke Shop, Eon Pods, Jem Pods, Sky
Distribution, Vapers & Papers, Access Vapor, eLiquid Stop, Evergreen
Smokeshop, Shenzhen Azure, DripTip Vapes, Modern Age Tobacco, and
Shango Distribution.
No party filed a petition for review of the subject ID. The
Commission did not receive briefing on the public interest in response
to either Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)) or the
Federal Register notice published following issuance of the subject ID
and RD. 86 FR 58099 (Oct. 20, 2021).
Having examined the record in this investigation, including the ID,
the Commission has determined to review in part the ID. The
Commission's review is limited to the economic prong of the domestic
industry requirement.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that results in the exclusion of the
subject articles from entry into the United States, and/or (2) issue
one or more 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
Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10
(December 1994) (Commission Opinion).
When the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders 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.
When 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
section 337(j), 19 U.S.C. 1337(j) and the 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. 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 RD on remedy and
bonding. The Commission is not requesting briefing on the issue under
review (i.e., the economic prong of the domestic industry requirement).
In their initial submissions, Complainant and OUII are also
requested to identify the remedy sought and to submit proposed remedial
orders for the Commission's consideration. Complainant is further
requested to state the date that the asserted patents expire, 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 December 13, 2021. Reply submissions must be
filed no later than the close of business on December 20, 2021. No
further submissions on these issues will be permitted unless otherwise
ordered by the Commission. Opening submissions are limited to 25 pages.
Reply submissions are limited to 20 pages. No further submissions on
any of 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-1211) 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 by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). 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
29, 2021.
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
[[Page 68686]]
210 of the Commission's Rules of Practice and Procedure (19 CFR part
210).
By order of the Commission.
Issued: November 29, 2021.
William Bishop,
Supervisory Hearings and Information Officer.
[FR Doc. 2021-26248 Filed 12-2-21; 8:45 am]
BILLING CODE 7020-02-P
