Certain Fitness Devices, Streaming Components Thereof, and Systems Containing Same; Notice of a Commission Determination To Reconsider the Original Remedial Orders and To Issue Orders Modifying Those Remedial Orders, 30158-30160 [2023-09953]
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30158
Federal Register / Vol. 88, No. 90 / Wednesday, May 10, 2023 / Notices
the results of consultation, can be found
in the inventory or related records held
by the PMAE.
Description
Human remains representing, at
minimum, 20 individuals were
collected at the Government School,
Chitina, in Valdez-Cordova County, AK.
The human remains are hair clippings
collected from 20 individuals all
identified as ‘‘Copper River Indians’’:
two individuals recorded as being 14
years old; two individuals recorded as
being 16 years old; one individual
recorded as being 17 years old; one
individual recorded as being 18 years
old; one individual recorded as being 19
years old; one individual recorded as
being 23 years old; one individual
recorded as being 24 years old; one
individual recorded as being 27 years
old; one individual recorded as being 30
years old; one individual recorded as
being 35 years old; one individual
recorded as being 42 years old; one
individual recorded as being 46 years
old; one individual recorded as being 48
years old; two individuals recorded as
being 50 years old; one individual
recorded as being 53 years old; one
individual recorded as being 56 years
old; and one individual recorded as
being 70 years old. An unknown
collector described as a ‘‘Government
teacher’’ took the hair clippings at the
Government School in Chitina between
1930 and 1933. The collector sent the
hair clippings to George Woodbury, who
donated the hair clippings to the PMAE
in 1935. No associated funerary objects
are present.
Cultural Affiliation
lotter on DSK11XQN23PROD with NOTICES1
Dated: May 3, 2023.
Melanie O’Brien,
Manager, National NAGPRA Program.
Pursuant to NAGPRA and its
implementing regulations, and after
consultation with the appropriate lineal
descendants, Indian Tribes, and Native
Hawaiian organizations, the PMAE has
determined that:
• The human remains described in
this notice represent the physical
remains of 20 individuals of Native
American ancestry.
Jkt 259001
Mr.
William Stewart, Bureau of
Reclamation, telephone (385) 622–2179,
email at wstewart@usbr.gov. Individuals
in the United States who are deaf,
deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Correction
In the Federal Register of May 1,
2023, in FR Doc. 2023–09157, on page
26590, in the second column, correct
the DATES and ADDRESSES captions to
read:
DATES: The meeting will be held
virtually on Wednesday, May 17, 2023,
beginning at 9 a.m. and concluding at 3
p.m. (MDT).
ADDRESSES: The virtual meeting may be
accessed at: https://rec.webex.com/rec/
j.php?MTID=m069d7dac9f
042ce419b775a5d2b462ff; Meeting
Number: 2763 284 1693, Password:
May17; Phone Number: (415) 527–5035.
To view a final copy of the agenda
and documents related to the May
meeting, please visit Reclamation’s
website at https://www.usbr.gov/uc/
progact/amp/amwg.html.
William Stewart,
Adaptive Management Group Chief,
Resources Management Division, Upper
Colorado Basin—Interior Region 7.
[FR Doc. 2023–09970 Filed 5–9–23; 8:45 am]
BILLING CODE 4332–90–P
BILLING CODE 4312–52–P
DEPARTMENT OF THE INTERIOR
[RR04093000, XXXR4081G3,
RX.05940913.FY19400]
Public Meeting of the Glen Canyon
Dam Adaptive Management Work
Group; Correction
Bureau of Reclamation,
Interior.
ACTION: Notice; correction.
The Bureau of Reclamation
published a document in the Federal
Register on May 1, 2023, announcing
the Glen Canyon Dam Adaptive
Management Work Group’s May 2023
meeting. The document contained an
incorrect time for the meeting and an
incorrect meeting access phone number.
SUMMARY:
PO 00000
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INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1265]
Bureau of Reclamation
AGENCY:
Determinations
17:49 May 09, 2023
Requests for Repatriation
Written requests for repatriation of the
human remains in this notice must be
sent to the Responsible Official
identified in ADDRESSES. Requests for
repatriation may be submitted by:
1. Any one or more of the Indian
Tribes or Native Hawaiian organizations
identified in this notice.
2. Any lineal descendant, Indian
Tribe, or Native Hawaiian organization
not identified in this notice who shows,
by a preponderance of the evidence, that
the requestor is a lineal descendant or
a culturally affiliated Indian Tribe or
Native Hawaiian organization.
Repatriation of the human remains in
this notice to a requestor may occur on
or after June 9, 2023. If competing
requests for repatriation are received,
the PMAE must determine the most
appropriate requestor prior to
repatriation. Requests for joint
repatriation of the human remains are
considered a single request and not
competing requests. The PMAE is
responsible for sending a copy of this
notice to the Indian Tribe identified in
this notice.
Authority: Native American Graves
Protection and Repatriation Act, 25
U.S.C. 3003, and the implementing
regulations, 43 CFR 10.9, 10.10, and
10.14.
[FR Doc. 2023–09900 Filed 5–9–23; 8:45 am]
The human remains in this notice are
connected to one or more identifiable
earlier groups, tribes, peoples, or
cultures. There is a relationship of
shared group identity between the
identifiable earlier groups, tribes,
peoples, or cultures and one or more
Indian Tribes or Native Hawaiian
organizations. The following types of
information were used to reasonably
trace the relationship: kinship and
anthropological.
VerDate Sep<11>2014
• There is a relationship of shared
group identity that can be reasonably
traced between the human remains
described in this notice and the Native
Village of Chitina.
Certain Fitness Devices, Streaming
Components Thereof, and Systems
Containing Same; Notice of a
Commission Determination To
Reconsider the Original Remedial
Orders and To Issue Orders Modifying
Those Remedial Orders
U.S. International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission (‘‘Commission’’) has
determined to reconsider the original
remedial orders issued in this
investigation and to issue orders
modifying those remedial orders.
SUMMARY:
E:\FR\FM\10MYN1.SGM
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Federal Register / Vol. 88, No. 90 / Wednesday, May 10, 2023 / Notices
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.
The
Commission instituted this investigation
under section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, on
May 19, 2021, based on a complaint
filed by DISH DBS Corporation of
Englewood, Colorado; DISH
Technologies L.L.C. of Englewood,
Colorado; and Sling TV L.L.C. of
Englewood, Colorado (collectively,
‘‘DISH’’ or ‘‘Complainants’’). 86 FR
27106–07 (May 19, 2021). The
complaint alleged a violation 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 fitness
devices, streaming components thereof,
and systems containing same by reason
of infringement of certain claims of U.S.
Patent Nos. 9,407,564 (‘‘the ’564
patent’’); 10,951,680 (‘‘the ’680 patent’’);
10,469,554 (‘‘the ’554 patent’’);
10,469,555 (‘‘the ’555 patent’’); and
10,757,156 (‘‘the ’156 patent’’). Id. at
27106. The notice of investigation
named as respondents ICON Health &
Fitness, Inc., of Logan, Utah (‘‘ICON’’ or
‘‘iFIT Inc.’’); FreeMotion Fitness, Inc., of
Logan, Utah (‘‘FreeMotion’’);
NordicTrack, Inc., of Logan, Utah
(collectively with ICON and
FreeMotion, ‘‘the iFit Respondents’’);
lululemon athletica inc., of Vancouver,
Canada (‘‘lululemon’’); Curiouser
Products Inc. d/b/a MIRROR, of New
York, New York (collectively with
lululemon, ‘‘MIRROR’’); and Peloton
Interactive, Inc., of New York, New York
(‘‘Peloton’’) (collectively,
‘‘Respondents’’). Id.; Order No. 14 (Nov.
4, 2021), unreviewed by Comm’n Notice
(Dec. 6, 2021), 86 FR 70532 (Dec. 10,
2021). The Commission’s Office of
Unfair Import Investigations (‘‘OUII’’)
also was named as a party in this
investigation. 86 FR at 27106.
lotter on DSK11XQN23PROD with NOTICES1
SUPPLEMENTARY INFORMATION:
VerDate Sep<11>2014
17:49 May 09, 2023
Jkt 259001
Prior to the issuance of the final
initial determination (‘‘Final ID’’), the
complaint and notice of investigation
were amended to change the name of
ICON to iFIT Inc. Order No. 14 (Nov. 4,
2021), unreviewed by Comm’n Notice
(Dec. 6, 2021), 86 FR at 70532. The
investigation was also terminated in
part as to claims 6, 11, and 12 of the
’156 patent, claim 22 of the ’554 patent,
and claim 17 of the ’555 patent. Order
No. 15 (Nov. 19, 2021), unreviewed by
Comm’n Notice (Dec. 20, 2021).
Moreover, claims 9 and 12 of the ’156
patent, claim 19 of the ’554 patent,
claims 12 and 13 of the ’555 patent, and
claim 6 of the ’564 patent were no
longer asserted against the iFit
Respondents and Peloton. Id. The
investigation was further terminated as
to claims 6–8, 10, and 13–15 of the ’564
patent, claims 3 and 6–12 of the ’156
patent, claims 18, 19, 21–25, and 30 of
the ’554 patent, claims 12, 13, 16, 17,
26, and 27 of the ’555 patent, and all
asserted claims of the ’680 patent. Order
No. 21 (Mar. 3, 2022), unreviewed by
Comm’n Notice (Mar. 23, 2022).
At the time of the Final ID, DISH
asserted the following claims against
MIRROR and the iFit Respondents:
claims 1, 3, and 5 of the ’564 patent;
claims 16, 17 and 20 of the ’554 patent;
claims 10, 11, 14, and 15 of the ’555
patent; and claims 1, 4, and 5 of the ’156
patent. DISH also asserted the following
claims against Peloton: claims 1 and 3–
5 of the ’564 patent; claims 16, 17, and
20 of the ’554 patent; claims 10, 11, 14,
and 15 of the ’555 patent; and claims 1,
2, 4, and 5 of the ’156 patent.
On September 9, 2022, the Chief
Administrative Law Judge issued the
Final ID, which found that Respondents
violated section 337.
On September 23, 2022, Respondents
and OUII filed petitions for review of
the Final ID. On October 3, 2022, DISH
and OUII filed responses to the
petitions.
On November 18, 2022, the
Commission determined to review the
Final ID in part. 87 FR 72510, 72510–
12 (Nov. 25, 2022).
On February 13, 2023, MIRROR and
DISH filed a joint, unopposed motion to
partially terminate the investigation as
to MIRROR based on a settlement
agreement between DISH and MIRROR.
On March 8, 2023, the Commission
issued its final determination, finding
respondents Peloton, iFIT Inc.,
FreeMotion, and NordicTrack in
violation of section 337 as to the
asserted claims of the ’156, ’554, and
’555 patents, but not as to the asserted
claims of the ’564 patent. 88 FR 15736–
38 (Mar. 14, 2023). As a remedy for that
violation, the Commission issued a
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30159
limited exclusion order and cease and
desist orders directed to Peloton, iFIT
Inc., FreeMotion, and NordicTrack. The
remedial orders included repair and
replacement exemptions, which
included an exemption for parts
necessary to service and repair covered
products purchased by consumers prior
to the date of the orders, and an
exemption for covered products that are
replacements for covered products
purchased by consumers prior to the
date of the orders, provided that
replacement is pursuant to a warranty
for the replaced article. The
Commission imposed a bond of zero
(0%) (i.e., no bond). Id. at 15738. The
Commission’s final determination also
granted the motion to terminate the
investigation as to MIRROR. Id. at
15737.
On March 22, 2023, Peloton filed a
petition for reconsideration of the
limited exclusion order and its cease
and desist order and requested
expedited consideration of the same (the
‘‘Petition’’). Peloton’s Petition asks the
Commission to modify the remedial
orders so that the repair and
replacement exemptions apply to
products purchased prior to the
expiration of the 60-day period of
Presidential review.
On March 27, 2023, OUII filed a
response supporting the Petition. On
March 29, 2023, DISH filed a response
opposing the Petition.
On April 7, 2023, the iFit
Respondents filed a Notice of Joinder,
asking to join in the relief requested by
Respondent Peloton’s Petition. On April
12, 2023, Complainants filed a motion
for leave to respond to Respondents’
Notice of Joinder and their Response to
Respondents’ Notice of Joinder,
opposing joinder.
Having reviewed the parties’
submissions, it has come to the
Commission’s attention that the
mitigation of harm to U.S. consumers
underlying the service and repair
exemptions in the remedial orders in
this investigation did not extend to U.S.
consumers who have purchased or may
purchase covered products during the
Presidential review period. Accordingly,
the Commission has determined sua
sponte to reconsider the remedial orders
originally issued in this investigation
and to issue orders modifying those
remedial orders to reduce their impact
on those U.S. consumers as well.1 2 19
1 Commissioner Schmidtlein agrees with the
majority determination sua sponte to reconsider the
remedial orders originally issued in this
investigation and to issue orders modifying those
remedial orders to reduce their impact on U.S.
consumers. In addition, consistent with her
E:\FR\FM\10MYN1.SGM
Continued
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30160
Federal Register / Vol. 88, No. 90 / Wednesday, May 10, 2023 / Notices
CFR 210.47. In light of the
Commission’s decision, the Commission
has determined that Peloton’s Petition;
the iFit Respondents’ Notice of Joinder;
and Complainants’ motion for leave to
respond to Respondents’ Notice of
Joinder are moot.3 The Commission’s
Orders are issued concurrently
herewith.
The Commission vote for this
determination took place on May 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
Practice and Procedure (19 CFR part
210).
lotter on DSK11XQN23PROD with NOTICES1
By order of the Commission.
previously expressed views, she would also extend
the exemption for replacement of the whole article
in this case to include those that are not currently
under warranty. See Comm’n Op. at 91 n.53 (Mar.
23, 2023) (Public Version).
2 Commissioner Kearns does not join in the
decision to reconsider and modify the remedial
orders. At the time of the Commission’s final
determination in this investigation, he found that
the appropriate way to mitigate harm to U.S.
consumers was through an exemption for repair/
replacement of products purchased by consumers
prior to the date of the Commission’s determination
of violation and issuance of the orders. Having
made that determination, based on the record and
parties’ arguments, he sees no reason to reconsider
it. He notes that, in some prior investigations, the
Commission has similarly granted a repair
exemption that covered only products purchased by
the date of the order. See, e.g., Certain Variable
Speed Wind Turbine Generators and Components
Thereof, Inv. No. 337–TA–1218, Limited Exclusion
Order at 2 (Jan. 18, 2022); Certain Magnetic Data
Storage Tapes and Cartridges Containing the Same,
Inv. No. 337–TA–1012, Limited Exclusion Order at
2 (Mar. 8, 2018). Finally, he notes that he does not
view the Petition as meeting the requirements set
forth in Commission Rule 210.47 (19 CFR 210.47).
3 Commissioner Karpel would deny Peloton’s
Petition for failure to meet the standard set forth in
Rule 210.47 of the Commission’s Rules of Practice
and Procedure. 19 CFR 210.47 (requiring petitions
for reconsideration to be ‘‘confined to new
questions raised by the determination or action
ordered to be taken thereunder and upon which the
petitioner had no opportunity to submit
arguments’’). Commissioner Karpel joins the
Commission’s decision to sua sponte reconsider the
original remedial orders issued in this investigation
and to issue orders modifying the remedial orders
previously issued in this investigation to reduce
their impact on those U.S. consumers. However,
consistent with her views stated in the Commission
Opinion, Commissioner Karpel would modify the
remedial orders by extending the service and repair
exemption to permit Respondents to import and use
component parts for service and repair of damaged
fitness devices that are or have been purchased by
U.S. consumers during the Presidential review
period, but would not permit Respondents to
supply as a replacement the identical fitness device
purchased by the consumer during this period for
the reasons she stated in the Commission Opinion.
See Comm’n Op. at 89 n.51 (Mar. 8, 2023).
VerDate Sep<11>2014
17:49 May 09, 2023
Jkt 259001
Issued: May 5, 2023.
Sharon Bellamy,
Acting Supervisory Hearings and Information
Officer.
[FR Doc. 2023–09953 Filed 5–9–23; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
Notice of Receipt of Complaint;
Solicitation of Comments Relating to
the Public Interest
International Trade
Commission.
ACTION: Notice.
AGENCY:
Notice is hereby given that
the U.S. International Trade
Commission has received a complaint
entitled Certain Photovoltaic
Connectors and Components Thereof,
DN 3680; 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.
For help accessing EDIS, please email
EDIS3Help@usitc.gov.
General information concerning the
Commission may also be obtained by
accessing its internet server at United
States International Trade Commission
(USITC) at https://www.usitc.gov. The
public record for this investigation may
be viewed on the Commission’s
Electronic Document Information
System (EDIS) at https://edis.usitc.gov.
Hearing-impaired persons are advised
that information on this matter can be
obtained by contacting the
Commission’s TDD terminal on (202)
205–1810.
SUPPLEMENTARY INFORMATION: The
Commission has received a complaint
and a submission pursuant to § 210.8(b)
of the Commission’s Rules of Practice
and Procedure filed on behalf of Shoals
Technologies Group, LLC on May 4,
2023. The complaint alleges violations
of section 337 of the Tariff Act of 1930
(19 U.S.C. 1337) in the importation into
the United States, the sale for
importation, and the sale within the
United States after importation of
certain photovoltaic connectors and
components thereof. The complaint
SUMMARY:
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Fmt 4703
Sfmt 4703
names as respondents: Hikam America,
Inc., of Chula Vista, CA; Hikam
Electro´nica de Me´xico, S.A. de C.V., of
Baja California; Hikam Tecnologia de
Sinaloa of Mexico; Hewtech Philippines
Corp. of Philippines; Hewtech
Philippines Electronics Corp. of
Philippines; Hewtech (Shenzhen)
Electronics Co., Ltd. of China; Voltage,
LLC of Chapel Hill, NC; and Ningbo
Voltage Smart Production Co. of China.
The complainant requests that the
Commission issue limited exclusion
order, cease and desist orders, and
impose a bond upon respondent alleged
infringing articles during the 60-day
Presidential review period pursuant to
19 U.S.C. 1337(j).
Proposed respondents, other
interested parties, and members of the
public are invited to file comments on
any public interest issues raised by the
complaint or § 210.8(b) filing.
Comments should address whether
issuance of the relief specifically
requested by the complainant in this
investigation would affect the public
health and welfare in the United States,
competitive conditions in the United
States economy, the production of like
or directly competitive articles in the
United States, or United States
consumers.
In particular, the Commission is
interested in comments that:
(i) explain how the articles potentially
subject to the requested remedial orders
are used in the United States;
(ii) identify any public health, safety,
or welfare concerns in the United States
relating to the requested remedial
orders;
(iii) identify like or directly
competitive articles that complainant,
its licensees, or third parties make in the
United States which could replace the
subject articles if they were to be
excluded;
(iv) indicate whether complainant,
complainant’s licensees, and/or third
party suppliers have the capacity to
replace the volume of articles
potentially subject to the requested
exclusion order and/or a cease and
desist order within a commercially
reasonable time; and
(v) explain how the requested
remedial orders would impact United
States consumers.
Written submissions on the public
interest must be filed no later than by
close of business, eight calendar days
after the date of publication of this
notice in the Federal Register. There
will be further opportunities for
comment on the public interest after the
issuance of any final initial
determination in this investigation. Any
written submissions on other issues
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]]>Agencies
[Federal Register Volume 88, Number 90 (Wednesday, May 10, 2023)]
[Notices]
[Pages 30158-30160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09953]
=======================================================================
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1265]
Certain Fitness Devices, Streaming Components Thereof, and
Systems Containing Same; Notice of a Commission Determination To
Reconsider the Original Remedial Orders and To Issue Orders Modifying
Those Remedial Orders
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to reconsider the original
remedial orders issued in this investigation and to issue orders
modifying those remedial orders.
[[Page 30159]]
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: The Commission instituted this investigation
under section 337 of the Tariff Act of 1930, as amended, 19 U.S.C.
1337, on May 19, 2021, based on a complaint filed by DISH DBS
Corporation of Englewood, Colorado; DISH Technologies L.L.C. of
Englewood, Colorado; and Sling TV L.L.C. of Englewood, Colorado
(collectively, ``DISH'' or ``Complainants''). 86 FR 27106-07 (May 19,
2021). The complaint alleged a violation 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 fitness
devices, streaming components thereof, and systems containing same by
reason of infringement of certain claims of U.S. Patent Nos. 9,407,564
(``the '564 patent''); 10,951,680 (``the '680 patent''); 10,469,554
(``the '554 patent''); 10,469,555 (``the '555 patent''); and 10,757,156
(``the '156 patent''). Id. at 27106. The notice of investigation named
as respondents ICON Health & Fitness, Inc., of Logan, Utah (``ICON'' or
``iFIT Inc.''); FreeMotion Fitness, Inc., of Logan, Utah
(``FreeMotion''); NordicTrack, Inc., of Logan, Utah (collectively with
ICON and FreeMotion, ``the iFit Respondents''); lululemon athletica
inc., of Vancouver, Canada (``lululemon''); Curiouser Products Inc. d/
b/a MIRROR, of New York, New York (collectively with lululemon,
``MIRROR''); and Peloton Interactive, Inc., of New York, New York
(``Peloton'') (collectively, ``Respondents''). Id.; Order No. 14 (Nov.
4, 2021), unreviewed by Comm'n Notice (Dec. 6, 2021), 86 FR 70532 (Dec.
10, 2021). The Commission's Office of Unfair Import Investigations
(``OUII'') also was named as a party in this investigation. 86 FR at
27106.
Prior to the issuance of the final initial determination (``Final
ID''), the complaint and notice of investigation were amended to change
the name of ICON to iFIT Inc. Order No. 14 (Nov. 4, 2021), unreviewed
by Comm'n Notice (Dec. 6, 2021), 86 FR at 70532. The investigation was
also terminated in part as to claims 6, 11, and 12 of the '156 patent,
claim 22 of the '554 patent, and claim 17 of the '555 patent. Order No.
15 (Nov. 19, 2021), unreviewed by Comm'n Notice (Dec. 20, 2021).
Moreover, claims 9 and 12 of the '156 patent, claim 19 of the '554
patent, claims 12 and 13 of the '555 patent, and claim 6 of the '564
patent were no longer asserted against the iFit Respondents and
Peloton. Id. The investigation was further terminated as to claims 6-8,
10, and 13-15 of the '564 patent, claims 3 and 6-12 of the '156 patent,
claims 18, 19, 21-25, and 30 of the '554 patent, claims 12, 13, 16, 17,
26, and 27 of the '555 patent, and all asserted claims of the '680
patent. Order No. 21 (Mar. 3, 2022), unreviewed by Comm'n Notice (Mar.
23, 2022).
At the time of the Final ID, DISH asserted the following claims
against MIRROR and the iFit Respondents: claims 1, 3, and 5 of the '564
patent; claims 16, 17 and 20 of the '554 patent; claims 10, 11, 14, and
15 of the '555 patent; and claims 1, 4, and 5 of the '156 patent. DISH
also asserted the following claims against Peloton: claims 1 and 3-5 of
the '564 patent; claims 16, 17, and 20 of the '554 patent; claims 10,
11, 14, and 15 of the '555 patent; and claims 1, 2, 4, and 5 of the
'156 patent.
On September 9, 2022, the Chief Administrative Law Judge issued the
Final ID, which found that Respondents violated section 337.
On September 23, 2022, Respondents and OUII filed petitions for
review of the Final ID. On October 3, 2022, DISH and OUII filed
responses to the petitions.
On November 18, 2022, the Commission determined to review the Final
ID in part. 87 FR 72510, 72510-12 (Nov. 25, 2022).
On February 13, 2023, MIRROR and DISH filed a joint, unopposed
motion to partially terminate the investigation as to MIRROR based on a
settlement agreement between DISH and MIRROR.
On March 8, 2023, the Commission issued its final determination,
finding respondents Peloton, iFIT Inc., FreeMotion, and NordicTrack in
violation of section 337 as to the asserted claims of the '156, '554,
and '555 patents, but not as to the asserted claims of the '564 patent.
88 FR 15736-38 (Mar. 14, 2023). As a remedy for that violation, the
Commission issued a limited exclusion order and cease and desist orders
directed to Peloton, iFIT Inc., FreeMotion, and NordicTrack. The
remedial orders included repair and replacement exemptions, which
included an exemption for parts necessary to service and repair covered
products purchased by consumers prior to the date of the orders, and an
exemption for covered products that are replacements for covered
products purchased by consumers prior to the date of the orders,
provided that replacement is pursuant to a warranty for the replaced
article. The Commission imposed a bond of zero (0%) (i.e., no bond).
Id. at 15738. The Commission's final determination also granted the
motion to terminate the investigation as to MIRROR. Id. at 15737.
On March 22, 2023, Peloton filed a petition for reconsideration of
the limited exclusion order and its cease and desist order and
requested expedited consideration of the same (the ``Petition'').
Peloton's Petition asks the Commission to modify the remedial orders so
that the repair and replacement exemptions apply to products purchased
prior to the expiration of the 60-day period of Presidential review.
On March 27, 2023, OUII filed a response supporting the Petition.
On March 29, 2023, DISH filed a response opposing the Petition.
On April 7, 2023, the iFit Respondents filed a Notice of Joinder,
asking to join in the relief requested by Respondent Peloton's
Petition. On April 12, 2023, Complainants filed a motion for leave to
respond to Respondents' Notice of Joinder and their Response to
Respondents' Notice of Joinder, opposing joinder.
Having reviewed the parties' submissions, it has come to the
Commission's attention that the mitigation of harm to U.S. consumers
underlying the service and repair exemptions in the remedial orders in
this investigation did not extend to U.S. consumers who have purchased
or may purchase covered products during the Presidential review period.
Accordingly, the Commission has determined sua sponte to reconsider the
remedial orders originally issued in this investigation and to issue
orders modifying those remedial orders to reduce their impact on those
U.S. consumers as well.1 2 19
[[Page 30160]]
CFR 210.47. In light of the Commission's decision, the Commission has
determined that Peloton's Petition; the iFit Respondents' Notice of
Joinder; and Complainants' motion for leave to respond to Respondents'
Notice of Joinder are moot.\3\ The Commission's Orders are issued
concurrently herewith.
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\1\ Commissioner Schmidtlein agrees with the majority
determination sua sponte to reconsider the remedial orders
originally issued in this investigation and to issue orders
modifying those remedial orders to reduce their impact on U.S.
consumers. In addition, consistent with her previously expressed
views, she would also extend the exemption for replacement of the
whole article in this case to include those that are not currently
under warranty. See Comm'n Op. at 91 n.53 (Mar. 23, 2023) (Public
Version).
\2\ Commissioner Kearns does not join in the decision to
reconsider and modify the remedial orders. At the time of the
Commission's final determination in this investigation, he found
that the appropriate way to mitigate harm to U.S. consumers was
through an exemption for repair/replacement of products purchased by
consumers prior to the date of the Commission's determination of
violation and issuance of the orders. Having made that
determination, based on the record and parties' arguments, he sees
no reason to reconsider it. He notes that, in some prior
investigations, the Commission has similarly granted a repair
exemption that covered only products purchased by the date of the
order. See, e.g., Certain Variable Speed Wind Turbine Generators and
Components Thereof, Inv. No. 337-TA-1218, Limited Exclusion Order at
2 (Jan. 18, 2022); Certain Magnetic Data Storage Tapes and
Cartridges Containing the Same, Inv. No. 337-TA-1012, Limited
Exclusion Order at 2 (Mar. 8, 2018). Finally, he notes that he does
not view the Petition as meeting the requirements set forth in
Commission Rule 210.47 (19 CFR 210.47).
\3\ Commissioner Karpel would deny Peloton's Petition for
failure to meet the standard set forth in Rule 210.47 of the
Commission's Rules of Practice and Procedure. 19 CFR 210.47
(requiring petitions for reconsideration to be ``confined to new
questions raised by the determination or action ordered to be taken
thereunder and upon which the petitioner had no opportunity to
submit arguments''). Commissioner Karpel joins the Commission's
decision to sua sponte reconsider the original remedial orders
issued in this investigation and to issue orders modifying the
remedial orders previously issued in this investigation to reduce
their impact on those U.S. consumers. However, consistent with her
views stated in the Commission Opinion, Commissioner Karpel would
modify the remedial orders by extending the service and repair
exemption to permit Respondents to import and use component parts
for service and repair of damaged fitness devices that are or have
been purchased by U.S. consumers during the Presidential review
period, but would not permit Respondents to supply as a replacement
the identical fitness device purchased by the consumer during this
period for the reasons she stated in the Commission Opinion. See
Comm'n Op. at 89 n.51 (Mar. 8, 2023).
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The Commission vote for this determination took place on May 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 Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: May 5, 2023.
Sharon Bellamy,
Acting Supervisory Hearings and Information Officer.
[FR Doc. 2023-09953 Filed 5-9-23; 8:45 am]
BILLING CODE 7020-02-P
