Certain Casual Footwear and Packaging Thereof; Notice of a Commission Determination To Review in Part a Final Initial Determination Finding No Violation; Request for Written Submissions on the Issues Under Review, Remedy, Bonding, and the Public Interest, 21712-21715 [2023-07530]
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Federal Register / Vol. 88, No. 69 / Tuesday, April 11, 2023 / Notices
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 (2022).
Scope of Investigation: Having
considered the complaint, the U.S.
International Trade Commission, on
April 5, 2023, 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,
2, 6–9, 11, 12, 14, 19, 22, 35, 41, 44, 45,
and 47 of the ’540 patent; claims 6, 8,
10, 13, 14, 17, 18, 21, and 22 of the ’551
patent; claim 15 of the ’151 patent;
claims 1, 8, 13, and 23 of the ’313
patent; and claims 1, 13, 15, 20, and 25
of the ’621 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: ‘‘anti-theft tracking
systems for shopping carts that include
(1) a wheel assembly that includes a
braking mechanism and transceivers for
transmitting and receiving RF signals;
(2) a transmitter placed at a store
checkout area for transmitting RF
signals to the wheel assembly; and (3)
a transceiver placed at a store exit for
transmitting and receiving RF signals to
and from the wheel assembly’’;
(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: Gatekeeper
Systems, Inc., 90 Icon, Foothill Ranch,
CA 92610
(b) The respondents are the following
entities alleged to be in violation of
section 337, and are the parties upon
which the complaint is to be served:
Rocateq International B.V., Ebweg 2,
Barendrecht, 2991LT, The
Netherlands; Rocateq USA, LLC, 551
5th Street, Unit D/2, San Fernando,
CA 91340; Zhuhai Rocateq
Technology Company Ltd. D, 3rd
Floor 1# Factory 8, Chuang Xin Liu
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Road Xiangzhou District, Zhuhai,
Guangdong, 519085 China
(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 be participating
as a party in this investigation.
Responses to the complaint and the
notice of institution of investigation
must be submitted by the named
respondents in accordance with section
210.13 of the Commission’s Rules of
Practice and Procedure, 19 CFR 210.13.
Pursuant to 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 institution
of investigation. Extensions of time for
submitting responses to the complaint
and the notice of institution of
investigation will not be granted unless
good cause therefor is shown.
Failure of a 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: April 5, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023–07523 Filed 4–10–23; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1270]
Certain Casual Footwear and
Packaging Thereof; Notice of a
Commission Determination To Review
in Part a Final Initial Determination
Finding No Violation; Request for
Written Submissions on the Issues
Under Review, Remedy, Bonding, and
the Public Interest
U.S. International Trade
Commission.
AGENCY:
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ACTION:
Notice.
Notice is hereby given that
the U.S. International Trade
Commission (‘‘Commission’’) has
determined to review in part a final
initial determination (‘‘ID’’) issued by
the presiding administrative law judge
(‘‘ALJ’’) finding no violation of section
337 and to solicit briefing from the
parties on the issues under review, as
well as briefing from the parties,
interested government agencies, and any
other interested parties on the issues of
remedy, bonding, and the public
interest.
SUMMARY:
Carl
P. Bretscher, Esq., Office of the General
Counsel, U.S. International Trade
Commission, 500 E Street SW,
Washington, DC 20436, telephone (202)
205–2382. 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: The
Commission instituted this investigation
on July 9, 2021, based on a complaint
filed by Crocs, Inc. of Broomfield,
Colorado (‘‘Crocs’’). 86 FR 36303–304
(July 9, 2021). The complaint, as
supplemented, 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, sale for importation, or
sale in the United States after
importation of certain casual footwear
and packaging thereof by reason of
infringement, false designation of origin,
and dilution of one of more of U.S.
Trademark Registration Nos. 5,149,328;
5,273,875 (collectively, the ‘‘3D
Marks’’); and 3,836,415 (‘‘the Word
Mark’’) (all collectively, ‘‘the Asserted
Marks’’). Id. The complaint alleges that
a domestic industry exists, and that the
threat or effect of certain alleged
violations is to destroy or substantially
injure an industry in the United States.
Id.
The Commission’s notice of
investigation named numerous
respondents, including: Hobby Lobby
Stores, Inc. of Oklahoma City,
Oklahoma (‘‘Hobby Lobby’’); Quanzhou
ZhengDe Network Corp. d/b/a Amoji of
FOR FURTHER INFORMATION CONTACT:
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Quanzhou, Fujian Province, China
(‘‘Amoji’’); Skechers USA, Inc. of
Manhattan Beach, California
(‘‘Skechers’’); SG Footwear Meser Grp.
Inc. a/k/a S. Goldberg & Co. of
Hackensack, New Jersey (‘‘SG
Footwear’’); Cape Robbin Inc. of
Pomona, California (‘‘Cape Robbin’’); Dr.
Leonard’s Healthcare Corp. d/b/a Carol
Wright of Edison, New Jersey (‘‘Dr.
Leonard’s’’); Fullbeauty Brands Inc. d/b/
a Kingsize of New York, New York
(‘‘Fullbeauty’’); Legend Footwear, Inc.
d/b/a/Wild Diva of City of Industry,
California (‘‘Wild Diva’’); Fujian
Huayuan Well Import and Export Trade
Co., Ltd. of Fuzhou, Fujian Province,
China (‘‘Fujian’’); Yoki Fashion
International LLC of New York, New
York (‘‘Yoki’’); Bijora, Inc. d/b/a Akira
of Chicago, Illinois (‘‘Akira’’); Hawkins
Footwear, Sports, Military & Dixie Store
of Brunswick, Georgia (‘‘Hawkins’’);
Shoe-Nami Inc. of Gretna, Louisiana
(‘‘Shoe-Nami’’); PW Shoes, Inc. a/k/a
P&W of Maspeth, New York (‘‘PW’’);
718Closeouts of Brooklyn, New York
(‘‘718Closeouts’’); Crocsky of Austin,
Texas (‘‘Crocsky’’); Hobibear Shoes and
Clothing Ltd. of Brighton, Colorado
(‘‘Hobibear’’); Ink Tee of Los Angeles,
California (‘‘Ink Tee’’); Maxhouse Rise
Ltd. of Hong Kong, China
(‘‘Maxhouse’’); La Modish Boutique of
West Covina, California (‘‘La Modish’’);
Loeffler Randall Inc. of New York, New
York (‘‘Loeffler Randall’’); Star Bay
Group Inc. of Hackensack, New Jersey
(‘‘Star Bay’’); and Royal Deluxe
Accessories, LLC of New Providence,
New Jersey (‘‘Royal Deluxe’’). The Office
of Unfair Import Investigations (‘‘OUII’’)
is also participating as a party.
On November 17, 2021, the
Commission amended the complaint
and notice of investigation to add
certain new respondents, including Orly
Shoe Corp. of New York, New York
(‘‘Orly’’); Mould Industria de Matrizes
Ltda. d/b/a/Boaonda of Brazil
(‘‘Boaonda’’); Dongguan Eastar Footwear
Enterprises Co., Ltd. of Guangzhou City,
China (‘‘Eastar’’); KGS Sourcing Ltd. of
Hong Kong, China (‘‘KGS’’); Fujian
Wanjiaxin Industrial Developing, Inc. a/
k/a Fujian Wanjiaxin Light Industrial
Developing, Inc. of Quanzhou City,
China (‘‘Wanjiaxin’’); Jinjiang Anao
Footwear Co., Ltd. (‘‘Anao’’); Walmart
Inc. of Bentonville, Arkansas
(‘‘Walmart’’); and Huizhou Xinshunzu
Shoes Co., Ltd. of Huizhou City, China
(‘‘Huizhou’’), and to terminate the
investigation with respect to Crocsky,
Hobibear, and Ink Tee. Order No. 30
(Oct. 21, 2021), unreviewed by Comm’n
Notice (Nov. 17, 2021).
The Commission subsequently
terminated the investigation with
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respect to various respondents on the
basis of settlement agreements or
consent orders. See Order No. 12 (Aug.
11, 2021) (terminating Skechers),
unreviewed by Comm’n Notice (Aug. 24,
2021); Order No. 16 (Aug. 26, 2021) (SG
Footwear) and Order No. 17 (Aug. 26,
2021) (Cape Robbin), unreviewed by
Comm’n Notice (Sept. 24, 2021); Order
No. 20 (Sept. 1, 2021) (Dr. Leonard’s),
unreviewed by Comm’n Notice (Sept.
29, 2021); Order No. 22 (Sept. 9, 2021)
(Fullbeauty) and Order No. 23 (Sept. 9,
2021) (Wild Diva), unreviewed by
Comm’n Notice (Oct. 7, 2021); Order
No. 24 (Sept. 17, 2021) (Fujian),
unreviewed by Comm’n Notice (Oct. 7,
2021); Order No. 25 (Sept. 22, 2021)
(Yoki), unreviewed by Comm’n Notice
(Oct. 7, 2021); Order No. 26 (Sept. 28,
2021) (Akira), unreviewed by Comm’n
Notice (Oct. 27, 2021); Order No. 27
(Oct. 6, 2021) (Hawkins), unreviewed by
Comm’n Notice (Oct. 29, 2021); Order
No. 32 (Nov. 1, 2021) (Shoe-Nami) and
Order No. 33 (Nov. 1, 2021) (PW),
unreviewed by Comm’n Notice (Nov. 29,
2021); Order No. 34 (Nov. 10, 2021) (718
Closeouts), unreviewed by Comm’n
Notice (Dec. 6, 2021); Order No. 39 (Jan.
11, 2022) (Eastar), unreviewed by
Comm’n Notice (Feb. 4, 2022); Order
No. 46 (March 3, 2022) (Maxhouse,
Wanjiaxin), unreviewed by Comm’n
Notice (March 18, 2022); Order No. 49
(March 15, 2022) (Boaonda), unreviewed
by Comm’n Notice (April 1, 2022);
Order No. 54 (April 22, 2022) (Royal
Deluxe), unreviewed by Comm’n Notice
(May 17, 2022); Order No. 56 (May 6,
2022) (Loeffler Randall), unreviewed by
Comm’n Notice (May 27, 2022); Order
No. 81 (Sept. 28, 2022) (Walmart),
unreviewed by Comm’n Notice (Oct. 20,
2022). The Commission also terminated
the investigation with respect to KGS for
good cause. Order No. 40 (Feb. 1, 2022),
unreviewed by Comm’n Notice (Feb. 22,
2022).
On June 10, 2022, the Commission
found respondents La Modish, Star Bay,
Huizhou, and Anao (‘‘Defaulting
Respondents’’) were in default and
waived their rights to appear, to be
served with documents, and to contest
the allegations in this investigation,
pursuant to 19 CFR 210.16(b), 210.17(h).
Order No. 58 (May 20, 2022),
unreviewed by Comm’n notice (June 10,
2022).
On September 13–16, 2022, the ALJ
held an evidentiary hearing. On
September 30, 2022, Crocs, OUII, and
the participating respondents (Orly,
Hobby Lobby, and Amoji) filed their
respective initial post-hearing briefs. On
October 7, 2022, the parties filed their
post-hearing reply briefs.
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On January 9, 2023, the ALJ issued
the subject ID finding no violation of
section 337 because: (1) Crocs failed to
prove that any of Respondents infringes
the 3D Marks; (2) Crocs failed to prove
that Orly or Hobby Lobby infringes the
Word Mark; (3) Crocs did not prove that
any of Respondents has falsely
designated the origin (source) of their
accused products or caused unfair
competition; (4) Crocs did not prove
that any of the Respondents diluted any
of the Asserted Marks, either by blurring
or tarnishment; (5) the 3D Marks are
invalid for lack of secondary meaning;
and (6) Crocs waived its infringement
contentions against Defaulting
Respondents. ID at 71–72, 83–86, 148–
49. The ID also finds that Crocs has
satisfied both the technical and
economic prongs of the domestic
industry (‘‘DI’’) requirement, and it
takes no position on injury. Id. at 130,
149. The ID further finds that
Respondents failed to prove the 3D
Marks are invalid as functional or the
Word Mark is invalid as generic, and it
takes no position on Respondents’ ‘‘fair
use’’ defense. Id. at 128–29, 149.
On January 23, 2023, Crocs filed a
petition for review of the ID’s findings.
On the same date, Respondents Orly
and Hobby Lobby (‘‘the Orly
Respondents’’) filed a contingent
petition for review of certain findings
should the Commission determine to
review the ID. Amoji did not join in the
Orly Respondents’ contingent petition
for review or file a petition of its own.
On January 31, 2023, Respondents
Orly, Hobby Lobby, and Amoji filed a
joint response to Crocs’ petition for
review, and Crocs filed its response to
the Orly Respondents’ contingent
petition for review. On the same date,
OUII filed a response to both of the
petitions for review.
Having reviewed the record in this
investigation, including the final ID, the
parties’ petitions, and responses thereto,
the Commission has determined to
review the ID in part with respect to the
ID’s findings regarding: (1) Crocs’s
infringement contentions against the
lined versions of Orly’s Gators were
untimely and waived; (2) the 3D Marks
lack secondary meaning, including
application of the presumption of
validity; (3) Crocs waived its
infringement contentions with respect
to the Defaulting Respondents; (4)
subject matter jurisdiction; (5)
likelihood of confusion; (6) false
designation of origin; (7) dilution; and
(8) the technical and economic prongs
of domestic industry. The Commission
has determined not to review the
remaining findings in the ID.
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The parties are asked to provide
additional briefing on the following
issues under review:
(A) Explain whether the evidence of
record demonstrates that the shoes that
were allegedly the subject of Orly’s first
sale practiced the 3D Marks in question,
and whether they were the same as the
Orly ‘‘Gator’’ shoes presently at issue.
Explain whether Orly’s sales activities
satisfies the requirements of a ‘‘first
sale’’ in this context and its implications
for the presumption of validity of the
Asserted Marks and the burden of proof.
Explain whether the evidence is
sufficient to overcome the presumption
of validity, if applicable.
(B) Explain whether the infringement
contention presented in Crocs’ prehearing and post-hearing briefs
provided sufficient notice and
information that Crocs was accusing the
lined version of the accused Orly Gator
products of infringement. Identify any
significant, relevant similarities or
differences between the lined and
unlined versions of the Orly Gator
products for purposes of infringement.
The parties are requested to brief only
the discrete issues identified above,
with reference to the applicable law and
evidentiary record. The parties are not
to brief any other issues on review,
which have already been adequately
presented in the parties’ previous
filings.
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-anddesist 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).
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 and/or cease-and-desist
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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 action. 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 this
investigation are requested to file
written submissions on the issues
identified above in this notice. In
addition, the parties, interested
government agencies, and any other
interested parties are requested to file
written submissions on the issues of
remedy, the public interest, and
bonding. Such initial submissions
should include views on the
recommended determination by the ALJ
on remedy and bonding.
In its initial submission, Complainant
is requested to identify the remedy
sought, and both Complainant and OUII
are requested to submit proposed
remedial orders for the Commission’s
consideration. Complainant is also
requested to provide the HTSUS
subheadings under which the accused
products are imported. Complainant is
further requested to supply the names of
known importers of the Respondents’
products at issue in this investigation.
Complainant is also requested to
identify and explain, from the record,
articles that it contends are ‘‘packaging
of’’ the subject products, and thus
potentially covered by the proposed
remedial orders, if imported separately
from the subject products. See 86 FR
36303–304. Failure to provide this
information may result in waiver of any
remedy directed to ‘‘packaging of’’ the
subject products, in the event any
violation may be found.
The parties’ written submissions and
proposed remedial orders must be filed
no later than the close of business on
April 19, 2023. Reply submissions must
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be filed no later than the close of
business on April 26, 2023. Opening
submissions are limited to 50 pages.
Reply submissions are limited to 30
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 (Mar.
19, 2020). Submissions should refer to
the investigation number (‘‘Inv. No.
337–TA–1270’’) in a prominent place on
the cover page and/or 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. 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 non-confidential
written submissions will be available for
public inspection at the Office of the
Secretary and on EDIS.
The Commission vote for this
determination took place on April 5,
2023.
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
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Practice and Procedure (19 CFR part
210).
DEPARTMENT OF JUSTICE
fiduciary responsibility, or other
financial misconduct, in connection
with the delivery of a health care item
or service, or with respect to any act or
omission in a health care program (other
than Medicare and a State health care
program) operated by, or financed in
whole or in part, by any Federal, State
or local government agency.’’ Id. (citing
42 U.S.C. 1320a–7(a)(3) 3). Id.
Registrant’s exclusion went into effect
on March 20, 2022. RFAAX D.
Drug Enforcement Administration
Discussion
Asim A. Hameedi, M.D.; Decision and
Order
Pursuant to 21 U.S.C. 824(a)(5), the
Attorney General is authorized to
suspend or revoke a registration issued
under section 823 of the Controlled
Substances Act (CSA) ‘‘upon a finding
that the registrant . . . has been
excluded (or directed to be excluded)
from participation in a program
pursuant to section 1320a–7(a) of Title
42.’’ Here, the undisputed record
evidence demonstrates that HHS
mandatorily excluded Registrant from
federal health care programs under 42
U.S.C. 1320a–7(a)(3). RFAAX C, at 1.
Accordingly, the Agency will sustain
the Government’s allegation that
Registrant has been excluded from
participation in a program pursuant to
section 1320a–7(a) of Title 42 and find
that the Government has established
that a ground exists upon which a
registration could be revoked pursuant
to 21 U.S.C. 824(a)(5).
By order of the Commission.
Issued: April 5, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023–07530 Filed 4–10–23; 8:45 am]
BILLING CODE 7020–02–P
On May 19, 2022, the Drug
Enforcement Administration (DEA or
Government) issued an Order to Show
Cause (OSC) to Asim A. Hameedi, M.D.
(Registrant). Request for Final Agency
Action (RFAA), Exhibit (RFAAX) A
(OSC), at 1, 3. The OSC proposed the
revocation of Registrant’s Certificate of
Registration No. BH6407919 at the
registered address of 213–18 Union
Turnpike, Bayside, New York 11364. Id.
at 1–2. The OSC alleged that Registrant’s
registration should be revoked and any
applications should be denied because
Registrant has been ‘‘excluded from
participation in all Federal health care
programs pursuant to 42 U.S.C. 1320a–
7(a).’’ Id. at 1 (citing 21 U.S.C.
824(a)(5)).
The Agency makes the following
findings of fact based on the
uncontroverted evidence submitted by
the Government in its RFAA dated
January 3, 2023.1 2
Findings of Fact
By letter dated February 28, 2022, the
Department of Health and Human
Services (HHS), Office of Inspector
General notified Registrant that he was
‘‘exclude[ed] from participation in all
Federal health care programs, as defined
in section 1128B(f) of the Social
Security Act (Act), for a minimum
period of 11 years.’’ RFAAX C, at 1. The
HHS letter explained that Registrant’s
exclusion was ‘‘due to [his] felony
conviction (as defined in section 1128(i)
of the Act) in the United States District
Court for the Southern District of New
York, of a criminal offense related to
fraud, theft, embezzlement, breach of
1 The
RFAA was submitted on February 3, 2022.
on a Declaration from a DEA Diversion
Investigator, the Agency finds that the
Government’s service of the OSC on Registrant was
adequate. RFAAX B, at 2. Further, based on the
Government’s assertions in its RFAA, the Agency
finds that more than thirty days have passed since
Registrant was served with the OSC and Registrant
has neither requested a hearing nor submitted a
written statement. RFAA, at 2; see also 21 CFR
1301.43.
lotter on DSK11XQN23PROD with NOTICES1
2 Based
VerDate Sep<11>2014
17:45 Apr 10, 2023
Jkt 259001
Sanction
Where, as here, the Government has
established grounds to revoke
Registrant’s registration, the burden
shifts to the registrant to show why he
can be entrusted with the responsibility
carried by a registration. Garret Howard
Smith, M.D., 83 FR 18,882, 18,910
(2018). When a registrant has committed
acts inconsistent with the public
interest, he must both accept
responsibility and demonstrate that he
has undertaken corrective measures.
Holiday CVS, L.L.C., dba CVS Pharmacy
Nos 219 and 5195, 77 FR 62,316, 62,339
(2012) (internal quotations omitted).
Trust is necessarily a fact-dependent
determination based on individual
circumstances; therefore, the Agency
looks at factors such as the acceptance
of responsibility, the credibility of that
acceptance as it relates to the
probability of repeat violations or
behavior, the nature of the misconduct
that forms the basis for sanction, and the
Agency’s interest in deterring similar
3 42 U.S.C. 1320a–7(a)(3) provides that exclusion
is mandatory where, as here, an individual has a
felony conviction related to health care fraud.
PO 00000
Frm 00114
Fmt 4703
Sfmt 9990
21715
acts. See, e.g., Robert Wayne Locklear,
M.D., 86 FR 33,738, 33,746 (2021).
Here, Registrant did not request a
hearing, submit a corrective action plan,
respond to the OSC, or otherwise avail
himself of the opportunity to refute the
Government’s case. As such, Registrant
has made no representations as to his
future compliance with the CSA nor
demonstrated that he can be entrusted
with registration. Where, in section
824(a)(5) cases, the registrant offers no
mitigating evidence upon which the
Administrator can analyze the facts, the
Agency has consistently held that
revocation is warranted. Washington
Bryan, M.D., 86 FR 71,924, 71,926
(2021).
The evidence presented by the
Government clearly shows that
Registrant has been mandatorily
excluded from participation in federal
health care programs. Accordingly, the
Agency will order the revocation of
Registrant’s registration.
Order
Pursuant to 28 CFR 0.100(b) and the
authority vested in me by 21 U.S.C.
824(a), I hereby revoke DEA Certificate
of Registration No. BH6407919 issued to
Asim A. Hameedi, M.D. Further,
pursuant to 28 CFR 0.100(b) and the
authority vested in me by 21 U.S.C.
823(g)(1) (formerly 823(f)), I hereby
deny any pending application to renew
or modify this registration, as well as
any other pending application of Asim
A. Hameedi, M.D., for registration in
New York. This Order is effective May
11, 2023.
Signing Authority
This document of the Drug
Enforcement Administration was signed
on April 4, 2023, by Administrator
Anne Milgram. That document with the
original signature and date is
maintained by DEA. For administrative
purposes only, and in compliance with
requirements of the Office of the Federal
Register, the undersigned DEA Federal
Register Liaison Officer has been
authorized to sign and submit the
document in electronic format for
publication, as an official document of
DEA. This administrative process in no
way alters the legal effect of this
document upon publication in the
Federal Register.
Heather Achbach,
Federal Register Liaison Officer, Drug
Enforcement Administration.
[FR Doc. 2023–07507 Filed 4–10–23; 8:45 am]
BILLING CODE 4410–09–P
E:\FR\FM\11APN1.SGM
11APN1
]]>Agencies
[Federal Register Volume 88, Number 69 (Tuesday, April 11, 2023)]
[Notices]
[Pages 21712-21715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07530]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1270]
Certain Casual Footwear and Packaging Thereof; Notice of a
Commission Determination To Review in Part a Final Initial
Determination Finding No Violation; Request for Written Submissions on
the Issues Under Review, Remedy, Bonding, and the Public Interest
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 a final
initial determination (``ID'') issued by the presiding administrative
law judge (``ALJ'') finding no violation of section 337 and to solicit
briefing from the parties on the issues under review, as well as
briefing from the parties, interested government agencies, and any
other interested parties on the issues of remedy, bonding, and the
public interest.
FOR FURTHER INFORMATION CONTACT: Carl P. Bretscher, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2382. 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: The Commission instituted this investigation
on July 9, 2021, based on a complaint filed by Crocs, Inc. of
Broomfield, Colorado (``Crocs''). 86 FR 36303-304 (July 9, 2021). The
complaint, as supplemented, 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, sale for importation, or sale
in the United States after importation of certain casual footwear and
packaging thereof by reason of infringement, false designation of
origin, and dilution of one of more of U.S. Trademark Registration Nos.
5,149,328; 5,273,875 (collectively, the ``3D Marks''); and 3,836,415
(``the Word Mark'') (all collectively, ``the Asserted Marks''). Id. The
complaint alleges that a domestic industry exists, and that the threat
or effect of certain alleged violations is to destroy or substantially
injure an industry in the United States. Id.
The Commission's notice of investigation named numerous
respondents, including: Hobby Lobby Stores, Inc. of Oklahoma City,
Oklahoma (``Hobby Lobby''); Quanzhou ZhengDe Network Corp. d/b/a Amoji
of
[[Page 21713]]
Quanzhou, Fujian Province, China (``Amoji''); Skechers USA, Inc. of
Manhattan Beach, California (``Skechers''); SG Footwear Meser Grp. Inc.
a/k/a S. Goldberg & Co. of Hackensack, New Jersey (``SG Footwear'');
Cape Robbin Inc. of Pomona, California (``Cape Robbin''); Dr. Leonard's
Healthcare Corp. d/b/a Carol Wright of Edison, New Jersey (``Dr.
Leonard's''); Fullbeauty Brands Inc. d/b/a Kingsize of New York, New
York (``Fullbeauty''); Legend Footwear, Inc. d/b/a/Wild Diva of City of
Industry, California (``Wild Diva''); Fujian Huayuan Well Import and
Export Trade Co., Ltd. of Fuzhou, Fujian Province, China (``Fujian'');
Yoki Fashion International LLC of New York, New York (``Yoki'');
Bijora, Inc. d/b/a Akira of Chicago, Illinois (``Akira''); Hawkins
Footwear, Sports, Military & Dixie Store of Brunswick, Georgia
(``Hawkins''); Shoe-Nami Inc. of Gretna, Louisiana (``Shoe-Nami''); PW
Shoes, Inc. a/k/a P&W of Maspeth, New York (``PW''); 718Closeouts of
Brooklyn, New York (``718Closeouts''); Crocsky of Austin, Texas
(``Crocsky''); Hobibear Shoes and Clothing Ltd. of Brighton, Colorado
(``Hobibear''); Ink Tee of Los Angeles, California (``Ink Tee'');
Maxhouse Rise Ltd. of Hong Kong, China (``Maxhouse''); La Modish
Boutique of West Covina, California (``La Modish''); Loeffler Randall
Inc. of New York, New York (``Loeffler Randall''); Star Bay Group Inc.
of Hackensack, New Jersey (``Star Bay''); and Royal Deluxe Accessories,
LLC of New Providence, New Jersey (``Royal Deluxe''). The Office of
Unfair Import Investigations (``OUII'') is also participating as a
party.
On November 17, 2021, the Commission amended the complaint and
notice of investigation to add certain new respondents, including Orly
Shoe Corp. of New York, New York (``Orly''); Mould Industria de
Matrizes Ltda. d/b/a/Boaonda of Brazil (``Boaonda''); Dongguan Eastar
Footwear Enterprises Co., Ltd. of Guangzhou City, China (``Eastar'');
KGS Sourcing Ltd. of Hong Kong, China (``KGS''); Fujian Wanjiaxin
Industrial Developing, Inc. a/k/a Fujian Wanjiaxin Light Industrial
Developing, Inc. of Quanzhou City, China (``Wanjiaxin''); Jinjiang Anao
Footwear Co., Ltd. (``Anao''); Walmart Inc. of Bentonville, Arkansas
(``Walmart''); and Huizhou Xinshunzu Shoes Co., Ltd. of Huizhou City,
China (``Huizhou''), and to terminate the investigation with respect to
Crocsky, Hobibear, and Ink Tee. Order No. 30 (Oct. 21, 2021),
unreviewed by Comm'n Notice (Nov. 17, 2021).
The Commission subsequently terminated the investigation with
respect to various respondents on the basis of settlement agreements or
consent orders. See Order No. 12 (Aug. 11, 2021) (terminating
Skechers), unreviewed by Comm'n Notice (Aug. 24, 2021); Order No. 16
(Aug. 26, 2021) (SG Footwear) and Order No. 17 (Aug. 26, 2021) (Cape
Robbin), unreviewed by Comm'n Notice (Sept. 24, 2021); Order No. 20
(Sept. 1, 2021) (Dr. Leonard's), unreviewed by Comm'n Notice (Sept. 29,
2021); Order No. 22 (Sept. 9, 2021) (Fullbeauty) and Order No. 23
(Sept. 9, 2021) (Wild Diva), unreviewed by Comm'n Notice (Oct. 7,
2021); Order No. 24 (Sept. 17, 2021) (Fujian), unreviewed by Comm'n
Notice (Oct. 7, 2021); Order No. 25 (Sept. 22, 2021) (Yoki), unreviewed
by Comm'n Notice (Oct. 7, 2021); Order No. 26 (Sept. 28, 2021) (Akira),
unreviewed by Comm'n Notice (Oct. 27, 2021); Order No. 27 (Oct. 6,
2021) (Hawkins), unreviewed by Comm'n Notice (Oct. 29, 2021); Order No.
32 (Nov. 1, 2021) (Shoe-Nami) and Order No. 33 (Nov. 1, 2021) (PW),
unreviewed by Comm'n Notice (Nov. 29, 2021); Order No. 34 (Nov. 10,
2021) (718 Closeouts), unreviewed by Comm'n Notice (Dec. 6, 2021);
Order No. 39 (Jan. 11, 2022) (Eastar), unreviewed by Comm'n Notice
(Feb. 4, 2022); Order No. 46 (March 3, 2022) (Maxhouse, Wanjiaxin),
unreviewed by Comm'n Notice (March 18, 2022); Order No. 49 (March 15,
2022) (Boaonda), unreviewed by Comm'n Notice (April 1, 2022); Order No.
54 (April 22, 2022) (Royal Deluxe), unreviewed by Comm'n Notice (May
17, 2022); Order No. 56 (May 6, 2022) (Loeffler Randall), unreviewed by
Comm'n Notice (May 27, 2022); Order No. 81 (Sept. 28, 2022) (Walmart),
unreviewed by Comm'n Notice (Oct. 20, 2022). The Commission also
terminated the investigation with respect to KGS for good cause. Order
No. 40 (Feb. 1, 2022), unreviewed by Comm'n Notice (Feb. 22, 2022).
On June 10, 2022, the Commission found respondents La Modish, Star
Bay, Huizhou, and Anao (``Defaulting Respondents'') were in default and
waived their rights to appear, to be served with documents, and to
contest the allegations in this investigation, pursuant to 19 CFR
210.16(b), 210.17(h). Order No. 58 (May 20, 2022), unreviewed by Comm'n
notice (June 10, 2022).
On September 13-16, 2022, the ALJ held an evidentiary hearing. On
September 30, 2022, Crocs, OUII, and the participating respondents
(Orly, Hobby Lobby, and Amoji) filed their respective initial post-
hearing briefs. On October 7, 2022, the parties filed their post-
hearing reply briefs.
On January 9, 2023, the ALJ issued the subject ID finding no
violation of section 337 because: (1) Crocs failed to prove that any of
Respondents infringes the 3D Marks; (2) Crocs failed to prove that Orly
or Hobby Lobby infringes the Word Mark; (3) Crocs did not prove that
any of Respondents has falsely designated the origin (source) of their
accused products or caused unfair competition; (4) Crocs did not prove
that any of the Respondents diluted any of the Asserted Marks, either
by blurring or tarnishment; (5) the 3D Marks are invalid for lack of
secondary meaning; and (6) Crocs waived its infringement contentions
against Defaulting Respondents. ID at 71-72, 83-86, 148-49. The ID also
finds that Crocs has satisfied both the technical and economic prongs
of the domestic industry (``DI'') requirement, and it takes no position
on injury. Id. at 130, 149. The ID further finds that Respondents
failed to prove the 3D Marks are invalid as functional or the Word Mark
is invalid as generic, and it takes no position on Respondents' ``fair
use'' defense. Id. at 128-29, 149.
On January 23, 2023, Crocs filed a petition for review of the ID's
findings. On the same date, Respondents Orly and Hobby Lobby (``the
Orly Respondents'') filed a contingent petition for review of certain
findings should the Commission determine to review the ID. Amoji did
not join in the Orly Respondents' contingent petition for review or
file a petition of its own.
On January 31, 2023, Respondents Orly, Hobby Lobby, and Amoji filed
a joint response to Crocs' petition for review, and Crocs filed its
response to the Orly Respondents' contingent petition for review. On
the same date, OUII filed a response to both of the petitions for
review.
Having reviewed the record in this investigation, including the
final ID, the parties' petitions, and responses thereto, the Commission
has determined to review the ID in part with respect to the ID's
findings regarding: (1) Crocs's infringement contentions against the
lined versions of Orly's Gators were untimely and waived; (2) the 3D
Marks lack secondary meaning, including application of the presumption
of validity; (3) Crocs waived its infringement contentions with respect
to the Defaulting Respondents; (4) subject matter jurisdiction; (5)
likelihood of confusion; (6) false designation of origin; (7) dilution;
and (8) the technical and economic prongs of domestic industry. The
Commission has determined not to review the remaining findings in the
ID.
[[Page 21714]]
The parties are asked to provide additional briefing on the
following issues under review:
(A) Explain whether the evidence of record demonstrates that the
shoes that were allegedly the subject of Orly's first sale practiced
the 3D Marks in question, and whether they were the same as the Orly
``Gator'' shoes presently at issue. Explain whether Orly's sales
activities satisfies the requirements of a ``first sale'' in this
context and its implications for the presumption of validity of the
Asserted Marks and the burden of proof. Explain whether the evidence is
sufficient to overcome the presumption of validity, if applicable.
(B) Explain whether the infringement contention presented in Crocs'
pre-hearing and post-hearing briefs provided sufficient notice and
information that Crocs was accusing the lined version of the accused
Orly Gator products of infringement. Identify any significant, relevant
similarities or differences between the lined and unlined versions of
the Orly Gator products for purposes of infringement.
The parties are requested to brief only the discrete issues
identified above, with reference to the applicable law and evidentiary
record. The parties are not to brief any other issues on review, which
have already been adequately presented in the parties' previous
filings.
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 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).
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
and/or cease-and-desist 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 action. 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 this investigation are requested to
file written submissions on the issues identified above in this notice.
In addition, the parties, interested government agencies, and any other
interested parties are requested to file written submissions on the
issues of remedy, the public interest, and bonding. Such initial
submissions should include views on the recommended determination by
the ALJ on remedy and bonding.
In its initial submission, Complainant is requested to identify the
remedy sought, and both Complainant and OUII are requested to submit
proposed remedial orders for the Commission's consideration.
Complainant is also requested to provide the HTSUS subheadings under
which the accused products are imported. Complainant is further
requested to supply the names of known importers of the Respondents'
products at issue in this investigation. Complainant is also requested
to identify and explain, from the record, articles that it contends are
``packaging of'' the subject products, and thus potentially covered by
the proposed remedial orders, if imported separately from the subject
products. See 86 FR 36303-304. Failure to provide this information may
result in waiver of any remedy directed to ``packaging of'' the subject
products, in the event any violation may be found.
The parties' written submissions and proposed remedial orders must
be filed no later than the close of business on April 19, 2023. Reply
submissions must be filed no later than the close of business on April
26, 2023. Opening submissions are limited to 50 pages. Reply
submissions are limited to 30 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 (Mar. 19, 2020). Submissions should refer to the
investigation number (``Inv. No. 337-TA-1270'') in a prominent place on
the cover page and/or 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. 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 non-confidential written submissions will be available
for public inspection at the Office of the Secretary and on EDIS.
The Commission vote for this determination took place on April 5,
2023.
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
[[Page 21715]]
Practice and Procedure (19 CFR part 210).
By order of the Commission.
Issued: April 5, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-07530 Filed 4-10-23; 8:45 am]
BILLING CODE 7020-02-P
