Notice2021-26248
Certain Vaporizer Cartridges and Components Thereof; Notice of Commission Determination To Review in Part an Initial Determination Granting a Motion for Summary Determination on Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 3, 2021
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission (``Commission'') has determined to review in part an initial determination (``ID'') (Order No. 65) of the presiding administrative law judge (``ALJ'') granting a summary determination on violation of section 337 by the respondents found in default in the above-captioned investigation. The Commission is requesting briefing from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 230 (Friday, December 3, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 230 (Friday, December 3, 2021)]
[Notices]
[Pages 68684-68686]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26248]
[[Page 68684]]
-----------------------------------------------------------------------
INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1211]
Certain Vaporizer Cartridges and Components Thereof; Notice of
Commission Determination To Review in Part an Initial Determination
Granting a Motion for Summary Determination on Violation of Section
337; Schedule for Filing Written Submissions on Remedy, the Public
Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined to review in part an initial
determination (``ID'') (Order No. 65) of the presiding administrative
law judge (``ALJ'') granting a summary determination on violation of
section 337 by the respondents found in default in the above-captioned
investigation. The Commission is requesting briefing from the parties,
interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Ronald A. Traud, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3427. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#3570717c66067d5059457540465c41561b525a43"><span class="__cf_email__" data-cfemail="91d4d5d8c2a2d9f4fde1d1e4e2f8e5f2bff6fee7">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. Hearing-impaired persons are advised that information on
this matter can be obtained by contacting the Commission's TDD terminal
on (202) 205-1810.
SUPPLEMENTARY INFORMATION: On August 14, 2020, the Commission
instituted this investigation based on a complaint, as supplemented,
filed on behalf of Juul Labs, Inc. (``JLI'') of San Francisco,
California. 85 FR 49679 (Aug. 14, 2020). The complaint, as
supplemented, alleges violations of section 337 of the Tariff Act of
1930, as amended, 19 U.S.C. 1337, based upon the importation into the
United States, the sale for importation, and the sale within the United
States after importation of certain vaporizer cartridges and components
thereof by reason of infringement of U.S. Design Patent Nos. D842,536;
D858,870; D858,869; and D858,868 (collectively, the ``Asserted
Patents''). Id. The complaint further alleges that a domestic industry
exists. Id. The Commission's notice of investigation names forty-nine
respondents, including: (1) 101 Smoke Shop, Inc. of Los Angeles,
California (``101 Smoke Shop''); (2) Eon Pods LLC of Jersey City, New
Jersey (``Eon Pods''); (3) Jem Pods, U.S.A. of Snellville, Georgia
(``Jem Pods''); (4) Sky Distribution LLC of Addison, Illinois (``Sky
Distribution''); (5) Vapers & Papers, LLC of Schenectady, New York
(``Vapers & Papers''); (6) Access Vapor LLC d/b/a Cali Pods of Orlando,
Florida (``Access Vapor''); (7) eLiquid Stop of Glendale, California
(``eLiquid Stop''); (8) Shenzhen Apoc Technology Co., Ltd. of Shenzhen,
China; (9) Shenzhen Ocity Times Technology Co., Ltd. of Shenzhen,
China; (10) Evergreen Smokeshop of Oakland, California (``Evergreen
Smokeshop''); (11) Shenzhen Azure Tech USA LLC f/k/a DS Vaping P.R.C.
of Redding, California (``Shenzhen Azure''); (12) DripTip Vapes LLC of
Plantation, Florida (``DripTip Vapes''); (13) Modern Age Tobacco of
Gainesville, Florida (``Modern Age Tobacco''); (14) Dongguan Hengtai
Biotechnology Co., Ltd. d/b/a Mr. Fog of Bensenville, Illinois; (15)
Shenzhen Yark Technology Co., Ltd. of Shenzhen, China; (16) Guangdong
Cellular Workshop Electronic Technology Co., Ltd. of Dongguan City,
China; (17) Shenzhen Bauway Technology Ltd. of Shenzhen, China; and
(18) Shango Distribution LLC d/b/a Puff E-Cig of Imlay City, Michigan
(``Shango Distribution'') (collectively, the ``Defaulting
Respondents''). See id.; see also 85 FR 73748 (Nov. 19, 2020). The
Office of Unfair Import Investigations (``OUII'') is also a party to
the investigation. See 85 FR 49679. The complaint and notice of
investigation were later amended to, inter alia, correct the names and
addresses of certain respondents. See 85 FR 73748
This investigation has previously terminated as to twenty-nine
respondents pursuant to Commission Rule 210.21(c) (19 CFR 210.21(c))
based on consent orders; and one respondent pursuant to Commission Rule
210.21(a) (19 CFR 210.21(a)) due to JLI's failure to serve that entity
with the Complaint and Notice of Investigation. Order No. 23 (Oct. 29,
2020) (terminating and issuing consent order to Midwest Goods),
unreviewed by Notice (Nov. 18, 2020); Order Nos. 26-29 (Dec. 8, 2020)
(terminating and issuing consent orders to Vape 'N Glass, Vaperistas,
Aqua Haze, and 2nd Wife Vape), unreviewed by Notice (Dec. 22, 2020);
Order Nos. 30 & 31 (Dec. 10, 2020) (terminating and issuing consent
orders to EZFumes and eJuiceDB), unreviewed by Notice (Jan. 4, 2021);
Order No. 32 (Dec. 14, 2020) (terminating and issuing a consent order
to JC Pods), unreviewed by Notice (Jan. 4, 2021); Order Nos. 33 & 34
(Dec. 15, 2020) (terminating and issuing consent orders to Tobacco
Alley and WeVapeUSA), unreviewed by Notice (Jan. 5, 2021); Order No. 37
(Dec. 30, 2020) (terminating and issuing a consent order to Vape
Central Group), unreviewed by Notice (Jan. 21, 2021); Order No. 38
(Jan. 5, 2021) (terminating and issuing a consent order to Ana Equity),
unreviewed by Notice (Jan. 21, 2021); Order Nos. 40-42 (Feb. 1, 2021)
(terminating and issuing consent orders to eCig-City, All Puff Store,
and Wireless N Vapor Citi), unreviewed by Notice (Feb. 16, 2021); Order
Nos. 43-48 (Feb. 2, 2021) (terminating and issuing consent orders to
JUULSite, Alternative Pods, Limitless Accessories, Price Point,
Naturally Peaked Health, and Smoker's Express), unreviewed by Notice
(Feb. 22, 2021); Order Nos. 49 & 50 (Feb. 3, 2021) (terminating and
issuing consent orders to Kind Group and CaryTown), unreviewed by
Notice (Feb. 22, 2021); Order Nos. 53 & 54 (Feb. 17, 2021) (terminating
and issuing consent orders to Cigar Road and Nilkant), unreviewed by
Notice (Mar. 15, 2021); Order No. 58 (Mar. 18, 2021) (terminating and
issuing a consent order to Cloud 99 Vapes), unreviewed by Notice (Apr.
2, 2021); Order No. 60 (Apr. 9, 2021) (terminating and issuing a
consent order to Canal Smoke), unreviewed by Notice, (Apr. 22, 2021);
Order No. 61 (Apr. 28, 2021) (terminating and issuing a consent order
to Perfect Vape), unreviewed by Notice (May 17, 2021); Order No. 51
(Feb. 8, 2021) (terminating investigation as to Keep Vapor), unreviewed
by Notice (Feb. 22, 2021). Additionally, Access Vapor LLC and Cali Pods
were originally identified as two distinct respondents, see 85 FR at
49679-80, however, Cali Pods is a business alias of Access Vapor, see
ID at 2, n.1.
On March 19, 2021, pursuant to Commission Rule 210.18 (19 CFR
210.18), JLI filed a motion for summary determination that the
Defaulting Respondents have violated section 337 through the
importation into the United States, sale for importation into the
United States, and/or sale within the United States after importation
of certain vaporizer cartridges and components thereof that infringe
the
[[Page 68685]]
Asserted Patents. On April 7, 2021, OUII filed a response in support of
JLI's motion.
On October 14, 2021, the ALJ issued the subject ID, Order No. 65,
granting the motion for summary determination on violation.
Specifically, the ID finds, inter alia: (1) That JLI established the
importation requirement as to each Defaulting Respondent; (2) that JLI
established infringement as to the accused products and the Asserted
Patents; and (3) that JLI satisfied the domestic industry requirement
for each Asserted Patent. The ALJ's Recommended Determination (``RD'')
on remedy and bonding recommended that the Commission issue a general
exclusion order and impose a 100 percent bond during the period of
Presidential review. The RD also recommends that the Commission issue
cease and desist orders directed to the domestic Defaulting
Respondents, namely, 101 Smoke Shop, Eon Pods, Jem Pods, Sky
Distribution, Vapers & Papers, Access Vapor, eLiquid Stop, Evergreen
Smokeshop, Shenzhen Azure, DripTip Vapes, Modern Age Tobacco, and
Shango Distribution.
No party filed a petition for review of the subject ID. The
Commission did not receive briefing on the public interest in response
to either Commission Rule 210.50(a)(4) (19 CFR 210.50(a)(4)) or the
Federal Register notice published following issuance of the subject ID
and RD. 86 FR 58099 (Oct. 20, 2021).
Having examined the record in this investigation, including the ID,
the Commission has determined to review in part the ID. The
Commission's review is limited to the economic prong of the domestic
industry requirement.
In connection with the final disposition of this investigation, the
Commission may (1) issue an order that results in the exclusion of the
subject articles from entry into the United States, and/or (2) issue
one or more cease and desist orders that could result in the
respondents being required to cease and desist from engaging in unfair
acts in the importation and sale of such articles. Accordingly, the
Commission is interested in receiving written submissions that address
the form of remedy, if any, that should be ordered. If a party seeks
exclusion of an article from entry into the United States for purposes
other than entry for consumption, the party should so indicate and
provide information establishing that activities involving other types
of entry either are adversely affecting it or likely to do so. For
background, see Certain Devices for Connecting Computers via Telephone
Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10
(December 1994) (Commission Opinion).
When the Commission contemplates some form of remedy, it must
consider the effects of that remedy upon the public interest. The
factors the Commission will consider include the effect that an
exclusion order and/or cease and desist orders would have on (1) the
public health and welfare, (2) competitive conditions in the U.S.
economy, (3) U.S. production of articles that are like or directly
competitive with those that are subject to investigation, and (4) U.S.
consumers. The Commission is therefore interested in receiving written
submissions that address the aforementioned public interest factors in
the context of this investigation.
When the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve,
disapprove, or take no action on the Commission's determination. See
section 337(j), 19 U.S.C. 1337(j) and the Presidential Memorandum of
July 21, 2005. 70 FR 43251 (July 26, 2005). During this period, the
subject articles would be entitled to enter the United States under
bond, in an amount determined by the Commission. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed if a remedy is ordered.
Written Submissions: Parties to the investigation, interested
government agencies, and any other interested parties are encouraged to
file written submissions on the issues of remedy, the public interest,
and bonding. Such submissions should address the RD on remedy and
bonding. The Commission is not requesting briefing on the issue under
review (i.e., the economic prong of the domestic industry requirement).
In their initial submissions, Complainant and OUII are also
requested to identify the remedy sought and to submit proposed remedial
orders for the Commission's consideration. Complainant is further
requested to state the date that the asserted patents expire, to
provide the HTSUS subheadings under which the accused products are
imported, and to supply the identification information for all known
importers of the products at issue in this investigation. The initial
written submissions and proposed remedial orders must be filed no later
than close of business on December 13, 2021. Reply submissions must be
filed no later than the close of business on December 20, 2021. No
further submissions on these issues will be permitted unless otherwise
ordered by the Commission. Opening submissions are limited to 25 pages.
Reply submissions are limited to 20 pages. No further submissions on
any of these issues will be permitted unless otherwise ordered by the
Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1211) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, <a href="https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf">https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf</a>.). Persons with questions regarding
filing should contact the Secretary, (202) 205-2000.
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. A redacted
non-confidential version of the document must also be filed
simultaneously with any confidential filing. All information, including
confidential business information and documents for which confidential
treatment is properly sought, submitted to the Commission for purposes
of this investigation may be disclosed to and used: (i) By the
Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel, solely for cybersecurity purposes.
All contract personnel will sign appropriate nondisclosure agreements.
All nonconfidential written submissions will be available for public
inspection on EDIS.
The Commission vote for this determination took place on November
29, 2021.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in Part
[[Page 68686]]
210 of the Commission's Rules of Practice and Procedure (19 CFR part
210).
By order of the Commission.
Issued: November 29, 2021.
William Bishop,
Supervisory Hearings and Information Officer.
[FR Doc. 2021-26248 Filed 12-2-21; 8:45 am]
BILLING CODE 7020-02-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on December 3, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.