Notice2022-00086
Certain Electric Shavers and Components and Accessories Thereof; Commission Determination To Review in Part an Initial Determination Granting in Part Complainant's Motion for Summary Determination of a Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding
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Published
January 7, 2022
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. 33) of the presiding administrative law judge ("ALJ"), granting in part summary determination on violation of section 337 and including a recommended determination ("RD") on remedy and bonding. The Commission has determined to review the ID's findings concerning the economic prong of the domestic industry requirement. The Commission requests briefing from the parties on the issue under review, and briefing from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding.
Full Text
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<title>Federal Register, Volume 87 Issue 5 (Friday, January 7, 2022)</title>
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[Federal Register Volume 87, Number 5 (Friday, January 7, 2022)]
[Notices]
[Pages 990-992]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-00086]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1230]
Certain Electric Shavers and Components and Accessories Thereof;
Commission Determination To Review in Part an Initial Determination
Granting in Part Complainant's Motion for Summary Determination of a
Violation of Section 337; Schedule for Filing Written Submissions on
the Issues Under Review and on Remedy, the Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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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. 33) of the presiding administrative
law judge (``ALJ''), granting in part summary determination on
violation of section 337 and including a recommended determination
(``RD'') on remedy and bonding. The Commission has determined to review
the ID's findings concerning the economic prong of the domestic
industry requirement. The Commission requests briefing from the parties
on the issue under review, and briefing from the parties, interested
government agencies, and interested persons on the issues of remedy,
the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2532. 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#2c6968657f1f6449405c6c595f45584f024b435a"><span class="__cf_email__" data-cfemail="2461606d77176c4148546451574d50470a434b52">[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, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On November 18, 2020, the Commission
instituted this investigation based on a complaint filed by Complainant
Skull Shaver (``Skull Shaver'') of Moorestown, New Jersey. 85 FR 73510-
11 (Nov. 18, 2020). 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 electric
shavers and components and accessories thereof by reason of
infringement of certain claims of U.S. Patent Nos. 8,726,528 and
D672,504. Id. The Commission's notice of investigation named the
following eleven entities as respondents: Rayenbarny Inc.
(``Rayenbarny'') of New York, New York; Bald Shaver Inc. (``Bald
Shaver'') of Toronto, Canada; Suzhou Kaidiya Garments Trading Co., Ltd.
(``Suzhou'') d.b.a. ``Digimator'' of Suzhou, China; Shenzhen Aiweilai
Trading Co., Ltd. (``Aiweilei'') d.b.a. ``Teamyo'' of Shenzhen, China;
Wenzhou Wending Electric Appliance Co., Ltd. of Yueqing City, China;
Shenzhen Nukun Technology Co., Ltd. (``Nukun'') d.b.a. ``OriHea'' of
Shenzhen, China; Yiwu Xingye Network Technology Co. Ltd. (``Yiwu
Xingye'') d.b.a. ``Roziapro'' of Yiwu, China; Magicfly LLC
(``Magicfly'') of Hong Kong; Yiwu City Qiaoyu Trading Co., Ltd. (``Yiwu
City'') of Yiwu, China; Shenzhen Wantong Information Technology Co.,
Ltd. (``Wantong'') d.b.a. ``WTONG'' of Shenzhen, China; and Shenzhen
Junmao International Technology Co., Ltd. (``Junmao'') d.b.a.
``Homeas'' of Shenzhen, China. The notice of investigation also named
the Office of Unfair Import Investigations (``OUII'') as a party. Id.
The Commission terminated Rayenbarny from the investigation because
its accused product was actually imported by Benepuri LLC
(``Benepuri'') of Menands, New York; the Commission allowed Benepuri to
intervene as a respondent. Notice, 85 FR 82514, 82515 (Dec. 18, 2020).
The Commission later granted Skull Shaver's motion to amend the
Complaint and the notice of investigation to correct the name of
Wenzhou Wending Electric Appliance Co., Ltd. d.b.a. ``Paitree'' is
Wenzhou Wending Electric Appliance Co., Ltd. (``Wenzhou''), and to
correct the addresses of several respondents. Notice, 86 FR 14645,
14645 (Mar. 17, 2021). The Commission terminated Magicfly from the
investigation on the basis of settlement. Notice at 2 (May 19, 2021).
The Commission terminated Nukun and Benepuri from the investigation on
the basis of withdrawal of the complaint. Notice at 2 (June 21, 2021)
(Nukun); Notice at 2 (Oct. 28, 2021) (Benepuri). All of the remaining
respondents (i.e., all respondents other than Magicfly, Nukun, Benepuri
and Rayenbarny) defaulted. See Notice at 3 (May 21, 2021) (seven
defaulting respondents); Notice at 2 (Dec. 9, 2021) (Bald Shaver).
Taken together, the eight defaulting respondents are: Suzhou; Yiwu
City; Wenzhou; Aiweilai; Junmao; Wantong; Yiwu Xingye; and Bald Shaver.
On May 26, 2021, Skull Shaver filed a motion for summary
determination of violation of section 337 by the eight defaulting
respondents and for a recommendation that the Commission issue a
general exclusion order (``GEO'') and cease and desist orders
(``CDOs''). See Complainants' Motion for Summary Determination of
Violation and for Recommended Determination on Remedy and Bonding
(``Skull Shaver Motion''). On June 7, 2021, OUII filled a response in
support of Skull Shaver's motion. See Commission Investigative Staff's
Response to Skull Shaver's Motion for Summary Determination of
Violation (``OUII Response''). No respondent filed a response to Skull
Shaver's motion.
On September 23, 2021, OUII filed a notice of supplemental
authority concerning the domestic industry requirement. On September
28, 2021, the ALJ issued an order (Order No. 31) ordering certain
supplementation of Skull Shaver's domestic industry analysis. On
October 14, 2021, Skull Shaver submitted its supplement in response to
Order No. 31. No other responses to Order No. 31 were filed. On
November 18, 2021, the ALJ granted-in-part Skull Shaver's motion for
summary determination as the subject ID.
The ID finds that Skull Shaver owns the asserted patents, and that
those patents are valid and enforceable. ID at 3. The ID further finds
that although all respondents imported, sold for importation, or sold
within the United States after importation at least one accused
article, the only respondents whose articles infringe the asserted
patents are Yiwu Xingye and Yiwu City. Id. at 3-4. The ID finds that
personal jurisdiction is not necessary over each
[[Page 991]]
defaulting respondent, but that the defaulting respondents waived any
opportunity to contest the allegation that personal jurisdiction
exists. Id. The ID further finds that Skull Shaver meets the technical
prong and the economic prong of the domestic industry requirement. Id.
at 4. As to remedy, the RD finds that there is a widespread pattern of
unauthorized use of the asserted patents and that a GEO is necessary to
prevent circumvention. Id. at 4. The RD also recommends issuance of
CDOs against the two infringing respondents that maintain domestic
inventories. RD at 80-81. The RD recommends a bond rate of 100% because
complete pricing information is not available. RD at 82.
No petitions for review of the ID were filed.
The Commission has determined to review the ID's findings
concerning the economic prong of the domestic industry requirement, and
not to review the ID's findings on other issues.
The parties are asked to brief the following issues concerning the
economic prong of the domestic industry requirement:
(1) Within each of the general categories of labor (management,
marketing/creative, customer service, and logistics/warehousing),
please explain which particular activities differ from those of a mere
importer, including by addressing the extent to which the activities do
not need to take place in the United States either as a legal or a
practical matter.
(2) Please provide, to the extent permitted by the record, a
breakout or estimated breakout of the claimed expenditures by type of
activities to allow separate consideration of expenses for activities
that do not need to take place in the United States either as a legal
or a practical matter. In your answer please be sure to address (a) the
various tasks performed by management, (b) the work done by logistics/
warehouse employees related to quality control and repair, and (c) the
work done by marketing/creative employees related to industrial design,
research and development, and prototyping.
(3) Does the total claimed expense for logistics/warehouse labor
costs (see, e.g., ID at 63) include all activities done by those
workers, or only quality control and repair work?
In connection with the final disposition of this investigation, the
statute authorizes issuance of: (1) An exclusion order that could
result in the exclusion of the subject articles from entry into the
United States, and/or (2) one or more cease and desist orders that
could result in the Defaulting 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 CDO 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 determination. 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: The parties to the investigation are requested
to file written submissions on the issue under review as set forth
above. Parties to this investigation, interested government agencies,
and any other interested parties are invited to file written
submissions on the issues of remedy, the public interest, and bonding.
Such submissions should include views on the recommended determination
by the ALJ on remedy and bonding.
In its initial written submissions, Skull Shaver is also requested
to identify the remedy sought and Skull Shaver and OUII are also
requested to submit proposed remedial orders for the Commission's
consideration. Skull Shaver is further requested to provide the HTSUS
subheadings under which the subject articles are imported and to supply
identification information for all known importers of the subject
articles.
Initial written submissions, including proposed remedial orders,
must be filed no later than close of business on January 18, 2022.
Reply submissions must be filed no later than the close of business on
January 25, 2022. 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-1230) 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
[[Page 992]]
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 these determinations took place on January
3, 2022.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: January 4, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-00086 Filed 1-6-22; 8:45 am]
BILLING CODE 7020-02-P
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