Certain Vaporizer Cartridges and Components Thereof; Issuance of a General Exclusion Order and Cease and Desist Orders; Termination of the Investigation, 9380-9382 [2022-03518]
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Federal Register / Vol. 87, No. 34 / Friday, February 18, 2022 / Notices
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.
This action is taken under the
authority of section 337 of the Tariff Act
of 1930, as amended (19 U.S.C. 1337),
and Part 210 of the Commission’s Rules
of Practice and Procedure (19 CFR part
210).
By order of the Commission.
Issued: February 15, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022–03557 Filed 2–17–22; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1211]
Certain Vaporizer Cartridges and
Components Thereof; Issuance of a
General Exclusion Order and Cease
and Desist Orders; Termination of the
Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has determined to affirm a
summary determination of violation of
section 337 with respect to certain
respondents found in default. The
Commission and has further determined
to issue a general exclusion order
(‘‘GEO’’) denying entry of certain
infringing vaporizer cartridges and
components thereof as well as cease and
desist orders (‘‘CDOs’’) against certain of
the defaulting respondents. This
investigation is terminated.
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
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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 49679–80 (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 (‘‘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 vaporizer
cartridges and components thereof by
reason of infringement of the sole claims
of U.S. Design Patent Nos. D842,536;
D858,870; D858,869; and D858,868
(collectively, the ‘‘Asserted Patents’’),
respectively. Id. The complaint further
alleges that a domestic industry exists.
Id.
The Commission’s notice of
investigation, as amended, names fortynine respondents (grouped by defaulting
and non-defaulting respondents):
—(1) 101 Smoke Shop, Inc. (‘‘101 Smoke
Shop’’); (2) Eon Pods LLC (‘‘Eon Pods’’); (3)
Jem Pods, U.S.A. (‘‘Jem Pods’’); (4) Sky
Distribution LLC (‘‘Sky Distribution’’); (5)
Vapers & Papers, LLC (‘‘Vapers & Papers’’);
(6) Access Vapor LLC D/B/A Cali Pods
(‘‘Access Vapor’’) (Access Vapor LLC and
Cali Pods were originally identified as two
distinct respondents. See 85 FR 49679–80
(notice of investigation). Cali Pods,
however, is a business alias of Access
Vapor. See Order No. 65 at 2, n.1); (7)
eLiquid Stop; (8) Shenzhen Apoc
Technology Co., Ltd. (‘‘Shenzhen Apoc’’);
(9) Shenzhen Ocity Times Technology Co.,
Ltd. (‘‘Shenzhen Ocity’’); (10) Evergreen
Smokeshop; (11) Shenzhen Azure Tech
USA LLC F/K/A DS Vaping P.R.C.
(‘‘Shenzhen Azure’’); (12) DripTip Vapes
LLC (‘‘DripTip Vapes’’); (13) Modern Age
Tobacco; (14) Dongguan Hengtai
Biotechnology Co., Ltd. D/B/A Mr. Fog
(‘‘Mr. Fog’’); (15) Shenzhen Yark
Technology Co., Ltd. (‘‘Shenzhen Yark’’);
(16) Guangdong Cellular Workshop
Electronic Technology Co., Ltd.
(‘‘Guangdong Cellular’’); (17) Shenzhen
Bauway Technology Ltd. (‘‘Shenzhen
Bauway’’); (18) Shango Distribution LLC D/
B/A Puff E-Cig (‘‘Puff E-Cig’’) (the first 18
respondents are collectively referred to
herein as the ‘‘Defaulting Respondents.’’);
—(19) Vapeonline LLC D/B/A 2nd Wife Vape
(‘‘2nd Wife Vape’’); (20) All Puff Store; (21)
Alternative Pods; (22) Ana Equity LLC
(‘‘Ana Equity’’); (23) Aqua Haze LLC
(‘‘Aqua Haze’’); (24) Cali Pods; (25) Canal
Smoke Express, Inc. (‘‘Canal Smoke’’); (26)
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Tobacco Club & Gifts, Inc., D/B/A
CaryTown Tobacco (‘‘CaryTown
Tobacco’’); (27) Cigar Road, Inc. (‘‘Cigar
Road’’); (28) Cloud 99 Vapes; (29) eCigCity; (30) VR Products I LLC D/B/A
eJuiceDB (‘‘eJuiceDB’’); (31) Texas E.
Cigarette D/B/A EZFumes (‘‘EZFumes’’);
(32) JC Pods; (33) JUULSite Inc.
(‘‘JUULSite’’); (34) Keep Vapor Electronic
Tech. Co., Ltd. (‘‘Keep Vapor’’); (35)
Limitless Accessories, Inc. (‘‘Limitless
Accessories’’); (36) Midwest Goods, Inc.
(‘‘Midwest Goods’’); (37) OMID Holdings,
Inc. D/B/A Naturally Peaked Health Co.
(‘‘Naturally Peaked Health’’); (38) Nilkant
167 Inc. (‘‘Nilkant’’); (39) Perfect Vape LLC
(‘‘Perfect Vape’’); (40) Price Point
Distributors Inc. D/B/A Price Point NY
(‘‘Price Point NY’’); (41) Bansidhar Inc. D/
B/A Smoker’s Express (‘‘Smoker’s
Express’’); (42) The Kind Group LLC
(‘‘Kind Group’’); (43) Three Mini Calvins,
LLC D/B/A Tobacco Alley of Midland
(‘‘Tobacco Alley’’); (44) Valgous; (45) Vape
Central Group; (46) Cork & Twist, Inc. D/
B/A Vape ‘n Glass (‘‘Vape ‘n Glass’’); (47)
Vaperistas; (48) WeVapeUSA; and (49)
Wireless N Vapor Citi LLC (‘‘Wireless N
Vapor Citi’’). Id.; see also Order No. 22
(Oct. 21, 2020) (granting motion to amend
the complaint and notice of investigation
to correct the legal names of Respondents
2nd Wife Vape, CaryTown Tobacco,
eJuiceDB, EZFumes, Price Point NY,
Smoker’s Express, Tobacco Alley, Vape ‘n
Glass, Naturally Peaked Health, and Puff ECig and ‘‘the name and address for
Respondent Mr. Fog.’’), unreviewed by
Notice, 85 FR 73748–49 (Nov. 19, 2020).
The Office of Unfair Import
Investigations (‘‘OUII’’) is also a party to
the investigation. 85 FR at 49679.
After institution of this investigation,
JLI amended the Complaint and notice
of investigation to, inter alia: (1) Include
‘‘the true legal names for each of
Respondents 2nd Wife Vape, CaryTown
Tobacco, eJuiceDB, EZFumes, Price
Point NY, Smoker’s Express, Tobacco
Alley, Vape ‘n Glass, Naturally Peaked
Health, and Puff E-Cig’’; (2) clarify that
originally-named respondents Limitless
Accessories and Valgous are a single
legal entity; (3) correct ‘‘the name and
address for Respondent Mr. Fog’’; and
(4) correct ‘‘the addresses for
Respondents Shenzhen Azure Tech
USA LLC f/k/a DS Vaping P.R.C. and
Shenzhen Yark Technology Co., Ltd.’’
Order No. 22 (Oct. 21, 2020),
unreviewed by Notice, 85 FR 73748–49
(Nov. 19, 2020).
The Commission previously
terminated the investigation as to 29
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
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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 NY, Naturally Peaked Health
Co., 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 Tobacco), 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).
The Commission previously found the
remaining eighteen respondents (‘‘the
Defaulting Respondents’’) in default.
See Order No. 35 (Dec. 17, 2021)
(finding 101 Smoke Shop, Eon Pods,
Jem Pods, Vapers & Papers, Sky
Distribution, and Guangdong Cellular in
default), unreviewed by Notice (Jan. 5,
2021); Order No. 62 (May 5, 2021)
(finding Shenzhen Azure, Evergreen
Smokeshop, DripTip Vapes, Modern
Age Tobacco, and Mr. Fog in default),
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unreviewed by Notice (May 19, 2021);
Order No. 63 (May 5, 2021) (finding
Shango Distribution and Shenzhen Yark
in default), unreviewed by Notice (May
19, 2021); Order No. 64 (Sept. 13, 2021)
(finding Shenzhen Bauway, Shenzhen
Apoc, Access Vapor, eLiquid Stop, and
Shenzhen Ocity in default), unreviewed
by Notice (Sept. 30, 2021).
On October 14, 2021, the presiding
administrative law judge (‘‘ALJ’’) issued
an initial determination (‘‘ID’’), Order
No. 65, granting a motion filed by JLI
pursuant to Commission Rule 210.18
(19 CFR 210.18) seeking a summary
determination on violation as to the
Defaulting Respondents. The ID
includes the ALJ’s Recommended
Determination (‘‘RD’’) on remedy and
bonding, which recommended that the
Commission issue a general exclusion
order and impose a one hundred
percent (100%) bond during the period
of Presidential review. The RD also
recommends that the Commission issue
cease and desist orders directed to the
twelve 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 petitions for review of the ID were
filed, and the Commission received no
comments or statements on the public
interest, either pursuant to Commission
Rule 210.50(a)(4) (19 CFR 210.50(a)(4))
or the post-RD notice, see 86 FR 58099
(Oct. 20, 2021).
On November 29, 2021, the
Commission determined to review
Order No. 65 in part with respect to the
economic prong of the domestic
industry requirement. The Commission
requested briefing concerning only
remedy, the public interest, and
bonding.
On December 13, 2021, JLI filed an
initial submission in response to the
Commission’s notice requesting that the
Commission issue a GEO, issue CDOs
against the twelve domestic Defaulting
Respondents, and set a bond of one
hundred percent (100%) of entered
value during the period of Presidential
review. On the same day, OUII also filed
an initial submission supporting the
ALJ’s recommendations. On December
20, 2021, JLI submitted a response to
OUII’s brief. No other submissions were
filed in response to the Notice.
On review, the Commission affirms
the ID’s finding that there is a violation
of section 337 with respect to the
Defaulting Respondents, including the
ID’s finding that JLI has satisfied the
economic prong of the domestic
industry requirement. Moreover, the
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9381
Commission finds that the statutory
requirements for issuance of a GEO
under section 337(d)(2) are met. See 19
U.S.C. 1337(d)(2). The Commission also
finds that issuance of CDOs against the
twelve domestic Defaulting
Respondents is appropriate under
sections 337(f)(1) and (g)(1). See 19
U.S.C. 1337(f)(1), (g)(1). In addition, the
Commission finds that the public
interest factors do not preclude issuance
of the requested relief. See 19 U.S.C.
1337(d)(1), (f)(1), (g)(1).
The Commission therefore has
determined that the appropriate remedy
in this investigation is: (1) A GEO
prohibiting the unlicensed entry of
certain vaporizer cartridges and
components thereof that infringe the
claims of the Asserted Patents; and (2)
CDOs against respondents 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. The Commission
has also determined that the bond
during the period of Presidential review
shall be in the amount of one hundred
percent (100%) of the entered value of
the articles subject to the GEO and
CDOs. See 19 U.S.C. 1337(j).
The Commission’s orders were
delivered to the President and to the
United States Trade Representative on
the day of their issuance. The
investigation is terminated.
The Commission vote for this
determination took place on February
14, 2022.
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).
While temporary remote operating
procedures are in place in response to
COVID–19, the Office of the Secretary is
not able to serve parties that have not
retained counsel or otherwise provided
a point of contact for electronic service.
Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR
201.16(a), 210.7(a)(1)), the Commission
orders that the Complainant(s) complete
service for any party/parties without a
method of electronic service noted on
the attached Certificate of Service and
shall file proof of service on the
Electronic Document Information
System (EDIS).
By order of the Commission.
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Federal Register / Vol. 87, No. 34 / Friday, February 18, 2022 / Notices
Issued: February 14, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022–03518 Filed 2–17–22; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1298]
Certain Networking Devices,
Computers, and Components Thereof
and Systems Containing the Same;
Institution of Investigation
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that a
complaint was filed with the U.S.
International Trade Commission on
January 13, 2022, under section 337 of
the Tariff Act of 1930, as amended, on
behalf of Proven Networks, LLC, of Los
Angeles, California. The complaint
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 networking
devices, computers, and components
thereof and systems containing the
same, by reason of infringement of
certain claims of U.S. Patent No.
8,687,573 (‘‘the ’573 patent’’). The
complaint further alleges that an
industry in the United States exists as
required by the applicable Federal
Statute. The complainant requests that
the Commission institute an
investigation and, after the
investigation, issue a limited exclusion
order and a cease and desist order.
ADDRESSES: The complaint, except for
any confidential information contained
therein, may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov. For help
accessing EDIS, please email
EDIS3Help@usitc.gov. Hearing impaired
individuals are advised that information
on this matter can be obtained by
contacting the Commission’s TDD
terminal on (202) 205–1810. Persons
with mobility impairments who will
need special assistance in gaining access
to the Commission should contact the
Office of the Secretary at (202) 205–
2000. General information concerning
the Commission may also be obtained
by accessing its internet server at
https://www.usitc.gov.
FOR FURTHER INFORMATION CONTACT:
Jessica Mullan, Office of the Secretary,
Docket Services Division, U.S.
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International Trade Commission,
telephone (202) 205–1802.
SUPPLEMENTARY INFORMATION:
Authority: The authority for
institution of this investigation is
contained in section 337 of the Tariff
Act of 1930, as amended, 19 U.S.C.
1337, and in section 210.10 of the
Commission’s Rules of Practice and
Procedure, 19 CFR 210.10 (2021).
Scope of Investigation: Having
considered the complaint, the U.S.
International Trade Commission, on
February 14, 2022, ordered that—
(1) Pursuant to subsection (b) of
section 337 of the Tariff Act of 1930, as
amended, an investigation be instituted
to determine whether there is a
violation of subsection (a)(1)(B) of
section 337 in the importation into the
United States, the sale for importation,
or the sale within the United States after
importation of certain products
identified in paragraph (2) by reason of
infringement of one or more of claims
1–37 of the ’573 patent, and whether an
industry in the United States exists as
required by subsection (a)(2) of section
337;
(2) Pursuant to section 210.10(b)(1) of
the Commission’s Rules of Practice and
Procedure, 19 CFR 210.10(b)(1), the
plain language description of the
accused products or category of accused
products, which defines the scope of the
investigation, is ‘‘switches, gateways,
and other networking products that
man[a]ge the flow of traffic and
bandwidth over a network, as well as
components involved therewith’’;
(3) For the purpose of the
investigation so instituted, the following
are hereby named as parties upon which
this notice of investigation shall be
served:
(a) The complainant is: Proven
Networks, LLC, 12424 Wilshire Blvd.
12th Floor, Los Angeles, CA 90025.
(b) The respondent is the following
entity alleged to be in violation of
section 337, and is the party upon
which the complaint is to be served:
NetApp, Inc., 3060 Olsen Drive Ave.,
San Jose, CA 95128.
(4) For the investigation so instituted,
the Chief Administrative Law Judge,
U.S. International Trade Commission,
shall designate the presiding
Administrative Law Judge.
The Office of Unfair Import
Investigations will not participate as a
party to this investigation.
Responses to the complaint and the
notice of investigation must be
submitted by the named respondent in
accordance with section 210.13 of the
Commission’s Rules of Practice and
Procedure, 19 CFR 210.13. Pursuant to
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19 CFR 201.16(e) and 210.13(a), as
amended in 85 FR 15798 (March 19,
2020), such responses will be
considered by the Commission if
received not later than 20 days after the
date of service by the complainant of the
complaint and the notice of
investigation. Extensions of time for
submitting responses to the complaint
and the notice of investigation will not
be granted unless good cause therefor is
shown.
Failure of the respondent to file a
timely response to each allegation in the
complaint and in this notice may be
deemed to constitute a waiver of the
right to appear and contest the
allegations of the complaint and this
notice, and to authorize the
administrative law judge and the
Commission, without further notice to
the respondent, to find the facts to be as
alleged in the complaint and this notice
and to enter an initial determination
and a final determination containing
such findings, and may result in the
issuance of an exclusion order or a cease
and desist order or both directed against
the respondent.
By order of the Commission.
Issued: February 14, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022–03505 Filed 2–17–22; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
Notice of Receipt of Complaint;
Solicitation of Comments Relating to
the Public Interest
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has received a complaint
entitled Certain Power Semiconductors,
and Mobile Devices and Computers
Containing Same, DN 3605; the
Commission is soliciting comments on
any public interest issues raised by the
complaint or complainant’s filing
pursuant to the Commission’s Rules of
Practice and Procedure.
FOR FURTHER INFORMATION CONTACT: Lisa
R. Barton, Secretary to the Commission,
U.S. International Trade Commission,
500 E Street SW, Washington, DC
20436, telephone (202) 205–2000. The
public version of the complaint can be
accessed on the Commission’s
Electronic Document Information
System (EDIS) at https://edis.usitc.gov.
SUMMARY:
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]]>Agencies
[Federal Register Volume 87, Number 34 (Friday, February 18, 2022)]
[Notices]
[Pages 9380-9382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03518]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1211]
Certain Vaporizer Cartridges and Components Thereof; Issuance of
a General Exclusion Order and Cease and Desist Orders; Termination of
the Investigation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to affirm a summary determination of
violation of section 337 with respect to certain respondents found in
default. The Commission and has further determined to issue a general
exclusion order (``GEO'') denying entry of certain infringing vaporizer
cartridges and components thereof as well as cease and desist orders
(``CDOs'') against certain of the defaulting respondents. This
investigation is terminated.
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 49679-80 (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 (``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 vaporizer
cartridges and components thereof by reason of infringement of the sole
claims of U.S. Design Patent Nos. D842,536; D858,870; D858,869; and
D858,868 (collectively, the ``Asserted Patents''), respectively. Id.
The complaint further alleges that a domestic industry exists. Id.
The Commission's notice of investigation, as amended, names forty-
nine respondents (grouped by defaulting and non-defaulting
respondents):
--(1) 101 Smoke Shop, Inc. (``101 Smoke Shop''); (2) Eon Pods LLC
(``Eon Pods''); (3) Jem Pods, U.S.A. (``Jem Pods''); (4) Sky
Distribution LLC (``Sky Distribution''); (5) Vapers & Papers, LLC
(``Vapers & Papers''); (6) Access Vapor LLC D/B/A Cali Pods
(``Access Vapor'') (Access Vapor LLC and Cali Pods were originally
identified as two distinct respondents. See 85 FR 49679-80 (notice
of investigation). Cali Pods, however, is a business alias of Access
Vapor. See Order No. 65 at 2, n.1); (7) eLiquid Stop; (8) Shenzhen
Apoc Technology Co., Ltd. (``Shenzhen Apoc''); (9) Shenzhen Ocity
Times Technology Co., Ltd. (``Shenzhen Ocity''); (10) Evergreen
Smokeshop; (11) Shenzhen Azure Tech USA LLC F/K/A DS Vaping P.R.C.
(``Shenzhen Azure''); (12) DripTip Vapes LLC (``DripTip Vapes'');
(13) Modern Age Tobacco; (14) Dongguan Hengtai Biotechnology Co.,
Ltd. D/B/A Mr. Fog (``Mr. Fog''); (15) Shenzhen Yark Technology Co.,
Ltd. (``Shenzhen Yark''); (16) Guangdong Cellular Workshop
Electronic Technology Co., Ltd. (``Guangdong Cellular''); (17)
Shenzhen Bauway Technology Ltd. (``Shenzhen Bauway''); (18) Shango
Distribution LLC D/B/A Puff E-Cig (``Puff E-Cig'') (the first 18
respondents are collectively referred to herein as the ``Defaulting
Respondents.'');
--(19) Vapeonline LLC D/B/A 2nd Wife Vape (``2nd Wife Vape''); (20)
All Puff Store; (21) Alternative Pods; (22) Ana Equity LLC (``Ana
Equity''); (23) Aqua Haze LLC (``Aqua Haze''); (24) Cali Pods; (25)
Canal Smoke Express, Inc. (``Canal Smoke''); (26) Tobacco Club &
Gifts, Inc., D/B/A CaryTown Tobacco (``CaryTown Tobacco''); (27)
Cigar Road, Inc. (``Cigar Road''); (28) Cloud 99 Vapes; (29) eCig-
City; (30) VR Products I LLC D/B/A eJuiceDB (``eJuiceDB''); (31)
Texas E. Cigarette D/B/A EZFumes (``EZFumes''); (32) JC Pods; (33)
JUULSite Inc. (``JUULSite''); (34) Keep Vapor Electronic Tech. Co.,
Ltd. (``Keep Vapor''); (35) Limitless Accessories, Inc. (``Limitless
Accessories''); (36) Midwest Goods, Inc. (``Midwest Goods''); (37)
OMID Holdings, Inc. D/B/A Naturally Peaked Health Co. (``Naturally
Peaked Health''); (38) Nilkant 167 Inc. (``Nilkant''); (39) Perfect
Vape LLC (``Perfect Vape''); (40) Price Point Distributors Inc. D/B/
A Price Point NY (``Price Point NY''); (41) Bansidhar Inc. D/B/A
Smoker's Express (``Smoker's Express''); (42) The Kind Group LLC
(``Kind Group''); (43) Three Mini Calvins, LLC D/B/A Tobacco Alley
of Midland (``Tobacco Alley''); (44) Valgous; (45) Vape Central
Group; (46) Cork & Twist, Inc. D/B/A Vape `n Glass (``Vape `n
Glass''); (47) Vaperistas; (48) WeVapeUSA; and (49) Wireless N Vapor
Citi LLC (``Wireless N Vapor Citi''). Id.; see also Order No. 22
(Oct. 21, 2020) (granting motion to amend the complaint and notice
of investigation to correct the legal names of Respondents 2nd Wife
Vape, CaryTown Tobacco, eJuiceDB, EZFumes, Price Point NY, Smoker's
Express, Tobacco Alley, Vape `n Glass, Naturally Peaked Health, and
Puff E-Cig and ``the name and address for Respondent Mr. Fog.''),
unreviewed by Notice, 85 FR 73748-49 (Nov. 19, 2020).
The Office of Unfair Import Investigations (``OUII'') is also a
party to the investigation. 85 FR at 49679.
After institution of this investigation, JLI amended the Complaint
and notice of investigation to, inter alia: (1) Include ``the true
legal names for each of Respondents 2nd Wife Vape, CaryTown Tobacco,
eJuiceDB, EZFumes, Price Point NY, Smoker's Express, Tobacco Alley,
Vape `n Glass, Naturally Peaked Health, and Puff E-Cig''; (2) clarify
that originally-named respondents Limitless Accessories and Valgous are
a single legal entity; (3) correct ``the name and address for
Respondent Mr. Fog''; and (4) correct ``the addresses for Respondents
Shenzhen Azure Tech USA LLC f/k/a DS Vaping P.R.C. and Shenzhen Yark
Technology Co., Ltd.'' Order No. 22 (Oct. 21, 2020), unreviewed by
Notice, 85 FR 73748-49 (Nov. 19, 2020).
The Commission previously terminated the investigation as to 29
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
[[Page 9381]]
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 NY, Naturally Peaked Health Co., 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 Tobacco), 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).
The Commission previously found the remaining eighteen respondents
(``the Defaulting Respondents'') in default. See Order No. 35 (Dec. 17,
2021) (finding 101 Smoke Shop, Eon Pods, Jem Pods, Vapers & Papers, Sky
Distribution, and Guangdong Cellular in default), unreviewed by Notice
(Jan. 5, 2021); Order No. 62 (May 5, 2021) (finding Shenzhen Azure,
Evergreen Smokeshop, DripTip Vapes, Modern Age Tobacco, and Mr. Fog in
default), unreviewed by Notice (May 19, 2021); Order No. 63 (May 5,
2021) (finding Shango Distribution and Shenzhen Yark in default),
unreviewed by Notice (May 19, 2021); Order No. 64 (Sept. 13, 2021)
(finding Shenzhen Bauway, Shenzhen Apoc, Access Vapor, eLiquid Stop,
and Shenzhen Ocity in default), unreviewed by Notice (Sept. 30, 2021).
On October 14, 2021, the presiding administrative law judge
(``ALJ'') issued an initial determination (``ID''), Order No. 65,
granting a motion filed by JLI pursuant to Commission Rule 210.18 (19
CFR 210.18) seeking a summary determination on violation as to the
Defaulting Respondents. The ID includes the ALJ's Recommended
Determination (``RD'') on remedy and bonding, which recommended that
the Commission issue a general exclusion order and impose a one hundred
percent (100%) bond during the period of Presidential review. The RD
also recommends that the Commission issue cease and desist orders
directed to the twelve 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 petitions for review of the ID were filed, and the Commission
received no comments or statements on the public interest, either
pursuant to Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)) or the
post-RD notice, see 86 FR 58099 (Oct. 20, 2021).
On November 29, 2021, the Commission determined to review Order No.
65 in part with respect to the economic prong of the domestic industry
requirement. The Commission requested briefing concerning only remedy,
the public interest, and bonding.
On December 13, 2021, JLI filed an initial submission in response
to the Commission's notice requesting that the Commission issue a GEO,
issue CDOs against the twelve domestic Defaulting Respondents, and set
a bond of one hundred percent (100%) of entered value during the period
of Presidential review. On the same day, OUII also filed an initial
submission supporting the ALJ's recommendations. On December 20, 2021,
JLI submitted a response to OUII's brief. No other submissions were
filed in response to the Notice.
On review, the Commission affirms the ID's finding that there is a
violation of section 337 with respect to the Defaulting Respondents,
including the ID's finding that JLI has satisfied the economic prong of
the domestic industry requirement. Moreover, the Commission finds that
the statutory requirements for issuance of a GEO under section
337(d)(2) are met. See 19 U.S.C. 1337(d)(2). The Commission also finds
that issuance of CDOs against the twelve domestic Defaulting
Respondents is appropriate under sections 337(f)(1) and (g)(1). See 19
U.S.C. 1337(f)(1), (g)(1). In addition, the Commission finds that the
public interest factors do not preclude issuance of the requested
relief. See 19 U.S.C. 1337(d)(1), (f)(1), (g)(1).
The Commission therefore has determined that the appropriate remedy
in this investigation is: (1) A GEO prohibiting the unlicensed entry of
certain vaporizer cartridges and components thereof that infringe the
claims of the Asserted Patents; and (2) CDOs against respondents 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. The
Commission has also determined that the bond during the period of
Presidential review shall be in the amount of one hundred percent
(100%) of the entered value of the articles subject to the GEO and
CDOs. See 19 U.S.C. 1337(j).
The Commission's orders were delivered to the President and to the
United States Trade Representative on the day of their issuance. The
investigation is terminated.
The Commission vote for this determination took place on February
14, 2022.
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).
While temporary remote operating procedures are in place in
response to COVID-19, the Office of the Secretary is not able to serve
parties that have not retained counsel or otherwise provided a point of
contact for electronic service. Accordingly, pursuant to Commission
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the
Commission orders that the Complainant(s) complete service for any
party/parties without a method of electronic service noted on the
attached Certificate of Service and shall file proof of service on the
Electronic Document Information System (EDIS).
By order of the Commission.
[[Page 9382]]
Issued: February 14, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-03518 Filed 2-17-22; 8:45 am]
BILLING CODE 7020-02-P
