[Federal Register Volume 85, Number 113 (Thursday, June 11, 2020)]
[Notices]
[Pages 35662-35664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12594]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1171]
Certain Child Resistant Closures With Slider Devices Having a
User Actuated Insertable Torpedo for Selectively Opening the Closures
and Slider Devices Therefor Commission Determination To Review in Part
an Initial Determination Granting Complainant's Motion for Summary
Determination of a Violation of Section 337; Schedule for Filing
Written Submissions 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, on April 21, 2020, the presiding
administrative law judge (``ALJ'') issued an initial determination
(``ID'') in the above-captioned investigation, granting summary
determination on violation of section 337 that included a recommended
determination on remedy and bonding. On April 22, 2020, the ALJ issued
a Notice of Errata thereto. The Commission has determined to review the
ID in part. The Commission requests briefing from the parties,
interested government agencies, and interested persons on the issues of
remedy, the public interest, and bonding.
FOR FURTHER INFORMATION CONTACT: Richard P. Hadorn, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-3179. 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, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On August 21, 2019, the Commission
instituted this investigation based on a complaint filed by Reynolds
Presto Products Inc. (``Presto''). 84 FR 43616-17 (Aug. 21, 2019). The
complaint alleges violations of section 337 of the Tariff Act of 1930,
as amended (19 U.S.C. 1337) (``section 337'') based on the importation
into the United States, the sale for importation, or the sale within
the United States after importation of certain child resistant closures
with slider devices having a user actuated insertable torpedo for
selectively opening the closures and slider devices therefor by reason
of infringement of certain claims of U.S. Patent Nos. 9,505,531 (``the
'531 patent''); 9,554,628; and 10,273,058 (``the '058 patent'')
(collectively, the ``Asserted Patents''). Id. at 43616. The complaint
further alleges that a domestic industry exists. Id. The Commission's
notice of investigation names six respondents: Dalian Takebishi Packing
Industry Co., Ltd. of Dalian, China (``Dalian Takebishi''); Dalian
Altma Industry Co., Ltd. of Dalian, Liaoning, China (``Dalian Altma'')
(together, the ``Dalian Respondents''); Japan Takebishi Co., Ltd., of
Tokyo, Japan; Takebishi Co., Ltd., of Shiga, Japan; Shanghai Takebishi
Packing Material Co., Ltd., of Shanghai, China; and Qingdao Takebishi
Packing Industry Co., Ltd., of Qingdao, China. Id. at 43616-17. It also
names the Office of Unfair Import Investigations (``OUII'') as a party.
Id. at 43617.
On October 7, 2019, the ALJ issued an ID finding the Dalian
Respondents in default. Order No. 7 (Oct. 30, 2019), unreviewed by
Comm'n Notice (Nov. 26, 2019). On November 19, 2019, the ALJ issued an
ID terminating the
[[Page 35663]]
investigation based on Presto's withdrawal of the complaint as to the
other four respondents (Japan Takebishi Co., Ltd.; Takebishi Co., Ltd.;
Shanghai Takebishi Packing Material Co., Ltd.; and Qingdao Takebishi
Packing Industry Co., Ltd.). Order No. 10 (Nov. 19, 2019), unreviewed
by Comm'n Notice (Dec. 18, 2019). That ID also terminated the
investigation as to (i) claims 6 and 7 of the '531 patent and (ii)
claims 6 and 7 of the '058 patent. Id.
On November 15, 2019, Presto filed a motion for summary
determination that the domestic industry requirement was satisfied and
that a violation had been established. Presto's motion requested
immediate entry of a limited exclusion order against the Dalian
Respondents, a general exclusion order (``GEO''), and a 100 percent
bond. On November 26, 2019, OUII filed a response to the motion
supporting the summary determination motion and the requested GEO and
100 percent bond.
On April 21, 2020, the ALJ issued the subject ID granting summary
determination of violation of section 337 by the Dalian Respondents.
The ID also contains the ALJ's recommendation on remedy and bonding, in
which the ALJ recommends issuance of a GEO or, in the alternative, a
limited exclusion order directed to each of the Dalian Respondents, and
that a 100 percent bond be set for importation during the Presidential
review period.
On May 1, 2020, OUII filed a petition seeking review of portions of
the ID's analysis of the economic prong of the domestic industry
requirement. No other party petitioned for review of the ID, and no
party filed a response to OUII's petition.
The Commission has determined to review the ID in part with respect
to the ID's analysis of the economic prong of the domestic industry
requirement. The Commission has determined not to review the remaining
findings in the ID. The Commission is not requesting any briefing on
the issue under review.
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
(``CDOs'') that could result in the Dalian Respondent(s) 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). In
addition, if a party seeks issuance of any CDOs, the written
submissions should address that request in the context of recent
Commission opinions, including those in Certain Arrowheads with
Deploying Blades and Components Thereof and Packaging Therefor, Inv.
No. 337-TA-977, Comm'n Op. (Apr. 28, 2017) and Certain Electric Skin
Care Devices, Brushes and Chargers Therefor, and Kits Containing the
Same, Inv. No. 337-TA-959, Comm'n Op. (Feb. 13, 2017). The written
submissions should respond to the following:
1. Is Presto still seeking CDOs against the Dalian Respondents?
2. If Presto is still seeking CDOs, please address the following
questions:
a. Can the Commission grant CDOs if a complainant has not argued
for them in its remedy briefing before the ALJ? Has the Commission ever
granted CDOs under such circumstances?
b. What prejudice have the Dalian Respondents suffered as a result
of Presto seeking CDOs in its complaint but not requesting them before
the ALJ?
c. Please identify with citations to the record any information
regarding commercially significant inventory in the United States as to
each respondent against whom a CDO is sought. If Presto also relies on
other significant domestic operations that could undercut the remedy
provided by an exclusion order, identify with citations to the record
such information as to each respondent against whom a CDO is sought.
d. In relation to the infringing products, please identify any
information in the record, including allegations in the pleadings, that
addresses the existence of any domestic inventory, any domestic
operations, or any sales-related activity directed at the United States
for each respondent against whom a CDO is sought.
e. Please discuss any other basis upon which the Commission could
enter a CDO.
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: 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 submission, Presto is also requested to
submit proposed remedial orders for the Commission's consideration.
Presto is further requested to identify the date the Asserted Patents
expire, 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 June 12, 2020. Reply
submissions must be filed no later than the close of business on June
19, 2020. 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-1171) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). Persons with questions
[[Page 35664]]
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. All such requests
should be directed to the Secretary to the Commission and must include
a full statement of the reasons why the Commission should grant such
treatment. See 19 CFR 201.6. Documents for which confidential treatment
by the Commission is properly sought will be treated accordingly. All
information, including confidential business information and documents
for which confidential treatment is properly sought, submitted to the
Commission for purposes of this Investigation may be disclosed to and
used: (i) By the Commission, its employees and Offices, and contract
personnel (a) for developing or maintaining the records of this or a
related proceeding, or (b) in internal investigations, audits, reviews,
and evaluations relating to the programs, personnel, and operations of
the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S.
government employees and contract personnel,\1\ solely for
cybersecurity purposes. All non-confidential written submissions will
be available for public inspection at the Office of the Secretary and
on EDIS.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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The Commission vote for these determinations took place on June 5,
2020.
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: June 5, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-12594 Filed 6-10-20; 8:45 am]
BILLING CODE 7020-02-P