Certain Oil-Vaping Cartridges, Components Thereof, and Products Containing the Same; Notice of a Commission Final Determination Finding Glo Extracts in Default; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation, 46180-46182 [2023-15247]
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46180
Federal Register / Vol. 88, No. 137 / Wednesday, July 19, 2023 / Notices
Cultural Affiliation
The cultural items 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: archeological,
geographical, and expert opinion.
Determinations
Pursuant to NAGPRA and its
implementing regulations, and after
consultation with the appropriate
Indian Tribes and Native Hawaiian
organizations, Boston Children’s
Museum has determined that:
• The seven cultural items described
above are reasonably believed to have
been placed with or near individual
human remains at the time of death or
later as part of the death rite or
ceremony and are believed, by a
preponderance of the evidence, to have
been removed from the specific burial
sites of Native American individuals.
• There is a relationship of shared
group identity that can be reasonably
traced between the cultural items and
the Quapaw Nation.
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Requests for Repatriation
Additional, written requests for
repatriation of the cultural items in this
notice must be sent to the Responsible
Official identified in ADDRESSES.
Requests for repatriation may be
submitted by 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 cultural items in
this notice to a requestor may occur on
or after August 18, 2023. If competing
requests for repatriation are received,
Boston Children’s Museum must
determine the most appropriate
requestor prior to repatriation. Requests
for joint repatriation of the cultural
items are considered a single request
and not competing requests. Boston
Children’s Museum 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 10.8, 10.10, and
10.14.
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Dated: July 12, 2023.
Melanie O’Brien,
Manager, National NAGPRA Program.
[FR Doc. 2023–15233 Filed 7–18–23; 8:45 am]
BILLING CODE 4312–52–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 337–TA–1286]
Certain Oil-Vaping Cartridges,
Components Thereof, and Products
Containing the Same; Notice of a
Commission Final Determination
Finding Glo Extracts in Default;
Issuance of a Limited 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 find Glo
Extracts of Los Angeles, California in
default and issue a limited exclusion
order (‘‘LEO’’) barring entry of certain
oil-vaping cartridges, components
thereof, and products containing the
same that are imported by or on behalf
of six respondents: Glo Extracts;
BulkCarts.com of Canton, Michigan;
Greenwave Naturals LLC (‘‘Greenwave
Naturals’’) of Austin, Texas;
Cartridgesforsale.com of Ypsilanti,
Michigan; HW Supply, LLC (‘‘HW
Supply’’) of Ypsilanti, Michigan; and
Obsidian Supply, Inc. (‘‘Obsidian
Supply’’) of Irvine, California
(collectively, the ‘‘Defaulting
Respondents’’). The Commission has
also determined to issue cease and
desist orders (‘‘CDOs’’) against the
Defaulting Respondents. The
investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Paul
Lall, Office of the General Counsel, U.S.
International Trade Commission, 500 E
Street SW, Washington, DC 20436,
telephone (202) 205–2043. 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.
SUMMARY:
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On
November 10, 2021, the Commission
instituted this investigation based on a
complaint filed by Smoore Technology
Limited (‘‘Smoore’’ or ‘‘Complainant’’).
86 FR 62567–69 (Nov. 10, 2021)
(‘‘Notice of Institution’’). The complaint
alleged violations of section 337 of the
Tariff Act of 1930, as amended, 19
U.S.C. 1337, based on the importation
into the United States, the sale for
importation, or the sale within the
United States after importation of
certain oil-vaping cartridges,
components thereof, and products
containing the same by reason of
infringement of certain claims of U.S.
Patent Nos. 10,357,623; 10,791,762; and
10,791,763; and U.S. Registered
Trademark No. 5,633,060 (‘‘the ’060
mark’’). Id.
The Commission’s notice of
investigation named the following
entities as respondents: Glo Extracts;
Cartridgesforsale.com; HW Supply;
BulkCarts.com; Greenwave Naturals;
Obsidian Supply; BBTank USA, LLC
(‘‘BBTank’’) of Lambertville, Michigan;
BoldCarts.com of Tempe, Arizona; Bold
Crafts, Inc. (‘‘Bold Crafts’’) of Irvine,
California; Blinc Group Holdings, LLC
of New York, New York; Jonathan Ray
Carfield (‘‘Jonathan Carfield’’), d/b/a
AlderEgo Wholesale, AlderEgo
Holdings, Inc. and AlderEgo Group,
Limited a/k/a AVD Holdings Limited of
Guangdong, China; Hanna Carfield
(‘‘Hanna Carfield’’) of Tacoma,
Washington; Next Level Ventures, LLC
(‘‘Next Level Ventures’’) of Seattle,
Washington; Advanced Vapor Devices,
LLC of Los Angeles, California;
avd710.com of Seattle, Washington;
AlderEgo Group Limited (‘‘AEG’’) of
Hong Kong; A&A Global Imports, Inc.
(‘‘A&A Global’’) of Vernon, California;
Bulk Natural, LLC (‘‘Bulk Natural’’) of
Portland Oregon; Brand King, LLC
(‘‘Brand King’’) of Sacramento,
California; ZTCSMOKE USA Inc.
(‘‘ZTCSMOKE’’) of Niceville, Florida;
headcandysmokeshop.com and Head
Candy Enterprise Ltd. (together ‘‘Head
Candy’’) both of Canada; Green Tank
Technologies Corp. of Canada; Cannary
Packaging Inc (‘‘Cannary Packaging’’) of
Canada; Cannary LA (‘‘Cannary LA’’) of
Signal Hill, California; dcalchemy.com
and DC Alchemy, LLC (together
‘‘Alchemy’’) both of Phoenix, Arizona;
International Vapor Group, LLC
(‘‘International Vapor’’) of Miami Lakes,
Florida; Ygreeninc.com and Ygreen Inc.
(together (‘‘Ygreen’’) both of Walnut,
California; Atmos Nation LLC
(‘‘Atmos’’) of Davie, Florida;
shopbvv.com (‘‘shopbvv.com’’) of
Naperville, Illinois; Best Value Vacs,
SUPPLEMENTARY INFORMATION:
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LLC (‘‘Best Value Vacs’’) of Naperville,
Illinois; Royalsupplywholesale.com
(‘‘Royalsupplywholesale’’) of San
Francisco, California;
Customcanabisbranding.com
(‘‘Customcanabisbranding’’) of San
Francisco, California; CLK Global, Inc.
(‘‘CLK’’) of San Francisco, California;
iKrusher, Inc., d/b/a iKrusher.com, of
Arcadia, California; and The Calico
Group Inc. of Austin, Texas. The Office
of Unfair Import Investigations (‘‘OUII’’)
was also named as a party in this
investigation. Id.
The Commission terminated multiple
respondents based on consent orders,
settlement, and/or withdrawal of the
complaint. See Order No. 9 (Dec. 16,
2021) (Head Candy), unreviewed by
Comm’n Notice (Jan. 10, 2022); Order
No. 10 (Dec. 20, 2021) (ZTCSMOKE),
unreviewed by Comm’n Notice (Jan. 11,
2022); Order Nos. 12 and 13 (Dec. 21,
2021) (Alchemy, CLK,
Royalsupplywholesale, and
Customcanabisbranding), unreviewed by
Comm’n Notice (Jan. 11, 2022); Order
No. 15 (Jan. 10, 2022) (Ygreen),
unreviewed by Comm’n Notice (Feb. 4,
2022); Order Nos. 16 and 17 (Jan. 18,
2022) (Cannary Packaging and Cannary
LA), unreviewed by Comm’n Notice
(Feb. 15, 2022); Order No. 17 (Jan. 21,
2022) (International Vapor), unreviewed
by Comm’n Notice (Feb. 15, 2022);
Order No. 20 (Feb. 23, 2022) (BBTank),
unreviewed by Comm’n Notice (Mar. 18,
2022); Order No. 29 (June 7, 2022) (Best
Value Vacs and shopbvv.com),
unreviewed by Comm’n Notice (June 22,
2022); Order Nos. 33 and 34 (July 5,
2022) (Atmos, AEG, Hanna Carfield, and
Jonathan Carfield), unreviewed by
Comm’n Notice (Aug. 2, 2022); Order
No. 46 (Jan. 31, 2023) (The Calico
Group), unreviewed by Comm’n Notice
(Mar. 3, 2023). On March 23, 2022,
Smoore filed an amended complaint
consistent with Order No. 20.
On July 28, 2022, the Chief
Administrative Law Judge (‘‘CALJ’’)
issued an order pursuant to Commission
Rule 210.16 directing the six nonparticipating respondents—
Cartridgesforsale.com; Glo Extracts; HW
Supply, LLC; Obsidian Supply, Inc.;
BulkCarts.com; and Greenwave Naturals
LLC—to show cause why they should
not be found in default and why
judgment should not be rendered
against them for failing to respond to the
amended complaint and amended
Notice of Institution. Order No. 38 (July
28, 2022).
The CALJ held an evidentiary hearing
from August 1–5, 2022 with the
following participating respondents:
The Blinc Group Inc.; Bold Crafts;
Greentank; iKrusher; Next Level
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Ventures; AVD; avd710.com; Bulk
Natural; Brand King; and A&A Global.
On August 19, 2022, Smoore filed an
initial post-hearing brief (‘‘Smoore Posthearing Br.’’). See EDIS Doc. No. 778377
(Aug. 19. 2022). In its post-hearing brief,
Smoore requested a limited exclusion
order and cease and desist orders
against respondents found to violate
section 337 and/or found to be in
default. Smoore Post-hearing Br. at 82–
87.
On November 2, 2022, the CALJ
issued another order pursuant to
Commission Rule 210.16 directing the
same six non-participating respondents
to show cause why they should not be
found in default and why judgment
should not be rendered against them for
failing to respond to the amended
complaint and amended notice of
investigation. Order No. 40 (Nov. 2,
2022). The order directed the nonparticipating respondents to make any
showing of good cause by no later than
November 16, 2022. Id. at 2. It also
directed Smoore to ensure that copies of
the order were served on the nonparticipating respondents and to file
proof of service on EDIS. Id. No party
responded to Order No. 40.
On November 7, 2022, Smoore filed
with the Commission proof of service
for four respondents: Greenwave
Naturals LLC; HW Supply, LLC;
BulkCarts.com; and Obsidian Supply,
Inc. See EDIS Doc. ID 783960 (11/07/
2022 Letter).
On January 23, 2023, the CALJ issued
an initial determination (‘‘ID’’) finding
five of the six non-participating
respondents in default: (1)
Cartridgesforsale.com; (2) HW Supply,
LLC; (3) Obsidian Supply, Inc.; (4)
BulkCarts.com; and (5) Greenwave
Naturals LLC. See Order No. 42 at 2–3
(Jan. 23, 2023), unreviewed by Comm’n
Notice (Feb. 14, 2023), at 1. The ID
noted that four respondents were
actually served and a fifth,
Cartridgesforsale.com, was
constructively served through its
operating entity, HW Supply, LLC, on
November 4, 2022. Order No. 42 at 2. It
further found that Smoore ‘‘has not
provided proof that the sixth
respondent, Glo Extracts, was served
with Order No. 40.’’ Id. (citing EDIS
Doc. ID 786724 (12/21/2022 Letter), Exs.
2 and 3 (showing return of service
package to sender Smoore)). The ID
declined to find Glo Extracts in default
because it was not properly served with
the show-cause order. Id.
On February 1, 2023, the CALJ issued
the final ID finding no violation of
section 337 by the participating
respondents with regard to the asserted
patent claims. The final ID stated that it
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46181
did not find Glo Extracts in default
because Smoore did not show that Glo
Extracts was properly served with Order
No. 40 to show cause. ID at 103 (citing
Order No. 42 at 2). The ID further found
that ‘‘Smoore has not shown that Glo
Extracts was served with Smoore’s
motion for summary determination.’’ Id.
(citing EDIS Doc. ID 772026 at
Certificate of Service (does not list Glo
Extracts); EDIS Doc. ID 772501 at
Certificate of Service (does not list Glo
Extracts)). The ID determined that
‘‘[b]ecause Glo Extracts was not given
notice and an opportunity to be heard
on Smoore’s motion for summary
determination, the motion is denied as
to Glo Extracts.’’ Id. (citing 19 U.S.C.
1337(c)). The ID made no additional
findings as to the other Defaulting
Respondents or as to the ’060 mark,
which was only asserted against the
Defaulting Respondents. The ID
included the CALJ’s recommended
determination on remedy and bonding
(‘‘RD’’). The RD recommended that,
should the Commission find a violation,
issuance of a limited exclusion order
and cease and desist orders would be
appropriate. ID at 105–108. The RD also
recommended imposing no bond for
covered products imported during the
period of Presidential review because
Smoore failed to meet its burden to
establish a need for a bond. Id. at 108–
09.
On February 13, 2023, Smoore filed a
petition for review of the final ID and
the participating respondents filed a
contingent petition for review of the ID.
On February 21, 2023, the parties,
including OUII, filed responses to the
petitions.
On April 24, 2023, the Commission
issued a notice of its determination
finding no violation of section 337 as to
the asserted patent claims. See 88 FR
26332–35 (Apr. 28, 2023. The
Commission also determined to review
all findings and orders as to Glo Extracts
and requested briefing from the parties
on whether Smoore has been able to
serve Glo Extracts with the Amended
Complaint and Notice of Investigation,
Smoore’s motion for summary
determination, and any of the Orders
from this investigation, including the
ALJ’s show-cause order (Order No. 40).
Id. at 26332. The Commission also
requested written submissions from the
parties on the issue under review, and
requested briefing from the parties,
interested government agencies, and
other interested persons on the issues of
remedy, the public interest, and
bonding. Id. at 26334–35.
On May 8, 2023, Smoore and OUII
filed submissions in response to the
Commission’s notice, arguing that the
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Federal Register / Vol. 88, No. 137 / Wednesday, July 19, 2023 / Notices
public interest does not preclude
issuance the requested LEO and CDOs.
Smoore also sought a bond during the
period of Presidential review in the
amount of one hundred percent (100%)
of the entered value of the infringing
articles. With respect to the
Commission’s review of findings and
orders as to Glo Extracts, OUII argued
that Smoore was not properly served
with the show cause order (Order No.
40) and therefore could not be found to
be in default. In contrast, Smoore argued
that the Commission should find Glo
Extracts to be in default because Smoore
had properly served Glo Extracts with
the Amended Complaint, Notice of
Investigation, Smoore’s motion for
summary determination, and Orders
from this investigation. On May 15,
2023, Smoore filed a reply to OUII’s
response.
Having examined the record of this
investigation, including the parties’
submissions, the Commission has
determined to find Glo Extracts in
default. Specifically, the Commission
finds that the conditions set forth in
section 337(g)(1)(A)–(E) (19 U.S.C.
1337(g)(1)(A)–(E)) have been satisfied,
and section 337(g)(1) directs the
Commission, upon request, to issue an
LEO or a CDO or both against a
respondent found in default, based on
the allegations regarding a violation of
section 337 in the complaint, which are
presumed to be true, unless after
consideration of the public interest
factors in section 337(g)(1), it finds that
such relief should not issue. As
discussed in the attached opinion,
Smoore made multiple attempts to serve
the show cause order on Glo Extracts.
Assuming for the sake of argument that
there was no service of the show cause
order on Glo Extracts, the Commission
waives Rule 201.16 requiring service in
view of the particular circumstances
here. See 19 CFR 201.4(b). Concurrent
with this notice, the Commission is
issuing an opinion with further
explanation of its determination.
The Commission has further
determined pursuant to subsection
337(g)(1) that the appropriate remedy in
this investigation is: (1) an LEO
prohibiting the unlicensed entry of
certain oil-vaping cartridges,
components thereof, and products
containing the same that are imported
by or on behalf of the Defaulting
Respondents that infringe the ’060 mark;
and (2) CDOs against all of the
Defaulting Respondents. The
Commission has also determined that
the public interest factors enumerated in
subsection 337(g)(1) do not preclude the
issuance of the LEO and CDOs. The
Commission has further determined that
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Jkt 259001
the bond during the period of
Presidential review pursuant to section
337(j) (19 U.S.C. 1337(j)) shall be in the
amount of one hundred percent (100%)
of the entered value of the infringing
articles. The investigation is terminated.
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).
The Commission’s vote for this
determination took place on July 13,
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: July 13, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023–15247 Filed 7–18–23; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
Notice of Receipt of Complaint;
Solicitation of Comments Relating to
the Public Interest
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 Converter
Modules and Computing Systems
Containing the Same, DN 3688; 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
SUMMARY:
PO 00000
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Sfmt 4703
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 Vicor
Corporation on July 12, 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 power converter
modules and computing systems
containing the same. The complaint
names as respondents: Delta Electronics,
Inc. of Taiwan; Delta Electronics
(Americas) Ltd. of Fremont, CA; Delta
Electronics (USA) Inc. of Plano, TX;
Cyntec Co., Ltd. of Taiwan; Quanta
Computer Inc. of Taiwan; Quanta Cloud
Technology Inc. of Taiwan; Quanta
Cloud Technology USA LLC of San Jose,
CA; Quanta Computer USA Inc. of
Fremont, CA; Hon Hai Precision
Industry Co. Ltd. (d/b/a Foxconn
Technology Group) of Taiwan; Foxconn
Industrial Internet Co. Ltd. of China; FII
USA Inc. (a/k/a Foxconn Industrial
Internet USA Inc.) of Milwaukee, WI;
Ingrasys Technology Inc. of Taiwan; and
Ingrasys Technology USA Inc. of San
Jose, CA. The complainant requests that
the Commission issue a limited
exclusion order, cease and desist orders,
and impose a bond upon respondents’
alleged infringing articles during the 60day 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
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]]>Agencies
[Federal Register Volume 88, Number 137 (Wednesday, July 19, 2023)]
[Notices]
[Pages 46180-46182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15247]
=======================================================================
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1286]
Certain Oil-Vaping Cartridges, Components Thereof, and Products
Containing the Same; Notice of a Commission Final Determination Finding
Glo Extracts in Default; Issuance of a Limited 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 find Glo Extracts of Los Angeles,
California in default and issue a limited exclusion order (``LEO'')
barring entry of certain oil-vaping cartridges, components thereof, and
products containing the same that are imported by or on behalf of six
respondents: Glo Extracts; BulkCarts.com of Canton, Michigan; Greenwave
Naturals LLC (``Greenwave Naturals'') of Austin, Texas;
Cartridgesforsale.com of Ypsilanti, Michigan; HW Supply, LLC (``HW
Supply'') of Ypsilanti, Michigan; and Obsidian Supply, Inc. (``Obsidian
Supply'') of Irvine, California (collectively, the ``Defaulting
Respondents''). The Commission has also determined to issue cease and
desist orders (``CDOs'') against the Defaulting Respondents. The
investigation is terminated.
FOR FURTHER INFORMATION CONTACT: Paul Lall, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2043. 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 November 10, 2021, the Commission
instituted this investigation based on a complaint filed by Smoore
Technology Limited (``Smoore'' or ``Complainant''). 86 FR 62567-69
(Nov. 10, 2021) (``Notice of Institution''). The complaint alleged
violations of section 337 of the Tariff Act of 1930, as amended, 19
U.S.C. 1337, based on the importation into the United States, the sale
for importation, or the sale within the United States after importation
of certain oil-vaping cartridges, components thereof, and products
containing the same by reason of infringement of certain claims of U.S.
Patent Nos. 10,357,623; 10,791,762; and 10,791,763; and U.S. Registered
Trademark No. 5,633,060 (``the '060 mark''). Id.
The Commission's notice of investigation named the following
entities as respondents: Glo Extracts; Cartridgesforsale.com; HW
Supply; BulkCarts.com; Greenwave Naturals; Obsidian Supply; BBTank USA,
LLC (``BBTank'') of Lambertville, Michigan; BoldCarts.com of Tempe,
Arizona; Bold Crafts, Inc. (``Bold Crafts'') of Irvine, California;
Blinc Group Holdings, LLC of New York, New York; Jonathan Ray Carfield
(``Jonathan Carfield''), d/b/a AlderEgo Wholesale, AlderEgo Holdings,
Inc. and AlderEgo Group, Limited a/k/a AVD Holdings Limited of
Guangdong, China; Hanna Carfield (``Hanna Carfield'') of Tacoma,
Washington; Next Level Ventures, LLC (``Next Level Ventures'') of
Seattle, Washington; Advanced Vapor Devices, LLC of Los Angeles,
California; avd710.com of Seattle, Washington; AlderEgo Group Limited
(``AEG'') of Hong Kong; A&A Global Imports, Inc. (``A&A Global'') of
Vernon, California; Bulk Natural, LLC (``Bulk Natural'') of Portland
Oregon; Brand King, LLC (``Brand King'') of Sacramento, California;
ZTCSMOKE USA Inc. (``ZTCSMOKE'') of Niceville, Florida;
headcandysmokeshop.com and Head Candy Enterprise Ltd. (together ``Head
Candy'') both of Canada; Green Tank Technologies Corp. of Canada;
Cannary Packaging Inc (``Cannary Packaging'') of Canada; Cannary LA
(``Cannary LA'') of Signal Hill, California; dcalchemy.com and DC
Alchemy, LLC (together ``Alchemy'') both of Phoenix, Arizona;
International Vapor Group, LLC (``International Vapor'') of Miami
Lakes, Florida; Ygreeninc.com and Ygreen Inc. (together (``Ygreen'')
both of Walnut, California; Atmos Nation LLC (``Atmos'') of Davie,
Florida; shopbvv.com (``shopbvv.com'') of Naperville, Illinois; Best
Value Vacs,
[[Page 46181]]
LLC (``Best Value Vacs'') of Naperville, Illinois;
Royalsupplywholesale.com (``Royalsupplywholesale'') of San Francisco,
California; Customcanabisbranding.com (``Customcanabisbranding'') of
San Francisco, California; CLK Global, Inc. (``CLK'') of San Francisco,
California; iKrusher, Inc., d/b/a iKrusher.com, of Arcadia, California;
and The Calico Group Inc. of Austin, Texas. The Office of Unfair Import
Investigations (``OUII'') was also named as a party in this
investigation. Id.
The Commission terminated multiple respondents based on consent
orders, settlement, and/or withdrawal of the complaint. See Order No. 9
(Dec. 16, 2021) (Head Candy), unreviewed by Comm'n Notice (Jan. 10,
2022); Order No. 10 (Dec. 20, 2021) (ZTCSMOKE), unreviewed by Comm'n
Notice (Jan. 11, 2022); Order Nos. 12 and 13 (Dec. 21, 2021) (Alchemy,
CLK, Royalsupplywholesale, and Customcanabisbranding), unreviewed by
Comm'n Notice (Jan. 11, 2022); Order No. 15 (Jan. 10, 2022) (Ygreen),
unreviewed by Comm'n Notice (Feb. 4, 2022); Order Nos. 16 and 17 (Jan.
18, 2022) (Cannary Packaging and Cannary LA), unreviewed by Comm'n
Notice (Feb. 15, 2022); Order No. 17 (Jan. 21, 2022) (International
Vapor), unreviewed by Comm'n Notice (Feb. 15, 2022); Order No. 20 (Feb.
23, 2022) (BBTank), unreviewed by Comm'n Notice (Mar. 18, 2022); Order
No. 29 (June 7, 2022) (Best Value Vacs and shopbvv.com), unreviewed by
Comm'n Notice (June 22, 2022); Order Nos. 33 and 34 (July 5, 2022)
(Atmos, AEG, Hanna Carfield, and Jonathan Carfield), unreviewed by
Comm'n Notice (Aug. 2, 2022); Order No. 46 (Jan. 31, 2023) (The Calico
Group), unreviewed by Comm'n Notice (Mar. 3, 2023). On March 23, 2022,
Smoore filed an amended complaint consistent with Order No. 20.
On July 28, 2022, the Chief Administrative Law Judge (``CALJ'')
issued an order pursuant to Commission Rule 210.16 directing the six
non-participating respondents--Cartridgesforsale.com; Glo Extracts; HW
Supply, LLC; Obsidian Supply, Inc.; BulkCarts.com; and Greenwave
Naturals LLC--to show cause why they should not be found in default and
why judgment should not be rendered against them for failing to respond
to the amended complaint and amended Notice of Institution. Order No.
38 (July 28, 2022).
The CALJ held an evidentiary hearing from August 1-5, 2022 with the
following participating respondents: The Blinc Group Inc.; Bold Crafts;
Greentank; iKrusher; Next Level Ventures; AVD; avd710.com; Bulk
Natural; Brand King; and A&A Global. On August 19, 2022, Smoore filed
an initial post-hearing brief (``Smoore Post-hearing Br.''). See EDIS
Doc. No. 778377 (Aug. 19. 2022). In its post-hearing brief, Smoore
requested a limited exclusion order and cease and desist orders against
respondents found to violate section 337 and/or found to be in default.
Smoore Post-hearing Br. at 82-87.
On November 2, 2022, the CALJ issued another order pursuant to
Commission Rule 210.16 directing the same six non-participating
respondents to show cause why they should not be found in default and
why judgment should not be rendered against them for failing to respond
to the amended complaint and amended notice of investigation. Order No.
40 (Nov. 2, 2022). The order directed the non-participating respondents
to make any showing of good cause by no later than November 16, 2022.
Id. at 2. It also directed Smoore to ensure that copies of the order
were served on the non-participating respondents and to file proof of
service on EDIS. Id. No party responded to Order No. 40.
On November 7, 2022, Smoore filed with the Commission proof of
service for four respondents: Greenwave Naturals LLC; HW Supply, LLC;
BulkCarts.com; and Obsidian Supply, Inc. See EDIS Doc. ID 783960 (11/
07/2022 Letter).
On January 23, 2023, the CALJ issued an initial determination
(``ID'') finding five of the six non-participating respondents in
default: (1) Cartridgesforsale.com; (2) HW Supply, LLC; (3) Obsidian
Supply, Inc.; (4) BulkCarts.com; and (5) Greenwave Naturals LLC. See
Order No. 42 at 2-3 (Jan. 23, 2023), unreviewed by Comm'n Notice (Feb.
14, 2023), at 1. The ID noted that four respondents were actually
served and a fifth, Cartridgesforsale.com, was constructively served
through its operating entity, HW Supply, LLC, on November 4, 2022.
Order No. 42 at 2. It further found that Smoore ``has not provided
proof that the sixth respondent, Glo Extracts, was served with Order
No. 40.'' Id. (citing EDIS Doc. ID 786724 (12/21/2022 Letter), Exs. 2
and 3 (showing return of service package to sender Smoore)). The ID
declined to find Glo Extracts in default because it was not properly
served with the show-cause order. Id.
On February 1, 2023, the CALJ issued the final ID finding no
violation of section 337 by the participating respondents with regard
to the asserted patent claims. The final ID stated that it did not find
Glo Extracts in default because Smoore did not show that Glo Extracts
was properly served with Order No. 40 to show cause. ID at 103 (citing
Order No. 42 at 2). The ID further found that ``Smoore has not shown
that Glo Extracts was served with Smoore's motion for summary
determination.'' Id. (citing EDIS Doc. ID 772026 at Certificate of
Service (does not list Glo Extracts); EDIS Doc. ID 772501 at
Certificate of Service (does not list Glo Extracts)). The ID determined
that ``[b]ecause Glo Extracts was not given notice and an opportunity
to be heard on Smoore's motion for summary determination, the motion is
denied as to Glo Extracts.'' Id. (citing 19 U.S.C. 1337(c)). The ID
made no additional findings as to the other Defaulting Respondents or
as to the '060 mark, which was only asserted against the Defaulting
Respondents. The ID included the CALJ's recommended determination on
remedy and bonding (``RD''). The RD recommended that, should the
Commission find a violation, issuance of a limited exclusion order and
cease and desist orders would be appropriate. ID at 105-108. The RD
also recommended imposing no bond for covered products imported during
the period of Presidential review because Smoore failed to meet its
burden to establish a need for a bond. Id. at 108-09.
On February 13, 2023, Smoore filed a petition for review of the
final ID and the participating respondents filed a contingent petition
for review of the ID. On February 21, 2023, the parties, including
OUII, filed responses to the petitions.
On April 24, 2023, the Commission issued a notice of its
determination finding no violation of section 337 as to the asserted
patent claims. See 88 FR 26332-35 (Apr. 28, 2023. The Commission also
determined to review all findings and orders as to Glo Extracts and
requested briefing from the parties on whether Smoore has been able to
serve Glo Extracts with the Amended Complaint and Notice of
Investigation, Smoore's motion for summary determination, and any of
the Orders from this investigation, including the ALJ's show-cause
order (Order No. 40). Id. at 26332. The Commission also requested
written submissions from the parties on the issue under review, and
requested briefing from the parties, interested government agencies,
and other interested persons on the issues of remedy, the public
interest, and bonding. Id. at 26334-35.
On May 8, 2023, Smoore and OUII filed submissions in response to
the Commission's notice, arguing that the
[[Page 46182]]
public interest does not preclude issuance the requested LEO and CDOs.
Smoore also sought a bond during the period of Presidential review in
the amount of one hundred percent (100%) of the entered value of the
infringing articles. With respect to the Commission's review of
findings and orders as to Glo Extracts, OUII argued that Smoore was not
properly served with the show cause order (Order No. 40) and therefore
could not be found to be in default. In contrast, Smoore argued that
the Commission should find Glo Extracts to be in default because Smoore
had properly served Glo Extracts with the Amended Complaint, Notice of
Investigation, Smoore's motion for summary determination, and Orders
from this investigation. On May 15, 2023, Smoore filed a reply to
OUII's response.
Having examined the record of this investigation, including the
parties' submissions, the Commission has determined to find Glo
Extracts in default. Specifically, the Commission finds that the
conditions set forth in section 337(g)(1)(A)-(E) (19 U.S.C.
1337(g)(1)(A)-(E)) have been satisfied, and section 337(g)(1) directs
the Commission, upon request, to issue an LEO or a CDO or both against
a respondent found in default, based on the allegations regarding a
violation of section 337 in the complaint, which are presumed to be
true, unless after consideration of the public interest factors in
section 337(g)(1), it finds that such relief should not issue. As
discussed in the attached opinion, Smoore made multiple attempts to
serve the show cause order on Glo Extracts. Assuming for the sake of
argument that there was no service of the show cause order on Glo
Extracts, the Commission waives Rule 201.16 requiring service in view
of the particular circumstances here. See 19 CFR 201.4(b). Concurrent
with this notice, the Commission is issuing an opinion with further
explanation of its determination.
The Commission has further determined pursuant to subsection
337(g)(1) that the appropriate remedy in this investigation is: (1) an
LEO prohibiting the unlicensed entry of certain oil-vaping cartridges,
components thereof, and products containing the same that are imported
by or on behalf of the Defaulting Respondents that infringe the '060
mark; and (2) CDOs against all of the Defaulting Respondents. The
Commission has also determined that the public interest factors
enumerated in subsection 337(g)(1) do not preclude the issuance of the
LEO and CDOs. The Commission has further determined that the bond
during the period of Presidential review pursuant to section 337(j) (19
U.S.C. 1337(j)) shall be in the amount of one hundred percent (100%) of
the entered value of the infringing articles. The investigation is
terminated.
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).
The Commission's vote for this determination took place on July 13,
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: July 13, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-15247 Filed 7-18-23; 8:45 am]
BILLING CODE 7020-02-P
