[Federal Register Volume 86, Number 205 (Wednesday, October 27, 2021)]
[Notices]
[Pages 59424-59426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23359]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1216]


Certain Vacuum Insulated Flasks and Components Thereof; 
Commission Decision To Review in Part an Initial Determination Granting 
in Part Complainants' Motion for Summary Determination of a Violation 
of Section 337; Request for Submissions

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part an initial determination 
(``ID'') (Order No. 24) of the presiding Chief Administrative Law Judge 
(``CALJ'') granting-in-part complainants' motion for summary 
determination of a violation of section 337. The Commission also 
requests written submissions from the parties, interested government 
agencies, and other interested persons regarding remedy, bonding, and 
the public interest, under the schedule set forth below.

FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-2392. 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 September 3, 2020, the Commission 
instituted this investigation under section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337 (``section 337''), based on a 
complaint filed by Steel Technology LLC d/b/a Hydro Flask and Helen of 
Troy Limited (collectively, ``Complainants,'' or ``Hydro Flask''). 85 
FR 55030-31 (Sept. 3, 2020). The complaint alleges a violation of 
section 337 in the importation into the United States, the sale for 
importation, or the sale within the United States after importation of 
certain vacuum insulated flasks and components thereof by reason of 
infringement of: (1) The sole claims of U.S. Design Patent Nos. 
D806,468 (``the D'468 patent''); D786,012 (``the D'012 patent'') and 
D799,320 (``the D'320 patent''), respectively; and (2) U.S. Trademark 
Registration Nos. 4,055,784 (``the '784 trademark''); 5,295,365 (``the 
'365 trademark''); 5,176,888 (``the '888 trademark''); and 4,806,282 
(``the '282 trademark''). The complaint also alleges the existence of a 
domestic industry. The notice of investigation names numerous 
respondents: Cangnan Kaiyisi E-Commerce Technology Co., Ltd.; Shenzhen 
Huichengyuan Technology Co., Ltd.; Sinbada Impex Co., Ltd.; Yongkang 
Huiyun Commodity Co., Ltd.; Wuyi Loncin Bottle Co., Ltd.; Zhejiang 
Yuchuan Industry & Trade Co., Ltd.; Zhejiang Yongkang Unique Industry & 
Trade Co., Ltd.; Suzhou Prime Gifts Co., Ltd.; Hangzhou Yuehua 
Technology Co., Ltd.; Guangzhou Yawen Technology Co., Ltd.; Jinhua City 
Ruizhi E-Commerce Co., Ltd.; Wo Ma Te (Tianjin) International Trade 
Co., Ltd.; and Shenzhen City Yaxin General Machinery Co., Ltd. 
(collectively, the ``Defaulting Respondents''); Eddie Bauer, LLC; PSEB 
Holdings, LLC; Dunhuang Group a.k.a. DHgate; Everich and Tomic 
Houseware Co., Ltd.; HydroFlaskPup; Yiwu Honglu Daily Necessities Co., 
Ltd.; and Yiwu Houju E-commerce Firm. The Commission's Office of Unfair 
Import Investigations (``OUII'') is also named as a party in this 
investigation. Id.
    Subsequently, the Commission permitted Hydro Flask to amend the 
complaint and notice of investigation to: (1) Assert the '012 patent 
against additional infringing products; (2) incorporate into the 
complaint the information and additional paragraphs included in 
Complainants' Supplemental Letter to the Commission of August 18, 2020; 
and (3) correct the corporate names of four non-appearing respondents--
Yiwu Houju E-Commerce Firm; Jinhua City Ruizhi E-Commerce Co., Ltd.; Wo 
Ma Te (Tianjin) International Trade Co., Ltd.; and Shenzhen City Yaxin 
General Machinery Co., Ltd. Mot. at 1. Order No. 12 (Nov. 6, 2020), 
unreviewed by Notice (Nov. 24, 2020); see 85 FR 77239-40 (Dec. 1, 
2020). The Commission also terminated the investigation as to certain 
other respondents based on a consent order and settlement agreement, or 
a settlement agreement, or a consent order stipulation and consent 
order: Eddie Bauer LLC and PSEB Holdings, LLC; DHgate; Everich and 
Tomic Houseware Co., Ltd. Order No. 13 (Nov. 30, 2020), unreviewed by 
Notice (Dec. 21, 2020); Order No. 17 (Jan. 27, 2021), unreviewed by 
Notice (Feb. 16, 2021); Order No. 19 (Feb. 19, 2021), unreviewed by 
Notice (Mar. 12, 2021). The Commission likewise terminated the 
investigation with respect to the '282 trademark. Order No. 16 (Jan. 
11, 2021), unreviewed by Notice (Feb. 8, 2021).
    On April 14, 2021, the Commission further found the Defaulting 
Respondents in default Order No. 21 (Mar. 22, 2021), unreviewed by 
Notice (Apr. 14, 2021). The Commission also permitted Hydro Flask to 
withdraw the amended complaint as to HydroFlaskPup, Yiwu Honglu Daily 
Necessities Co., Ltd., and Yiwu Houju E-commerce Firm. Order No. 22 
(Apr. 7, 2021), unreviewed by Notice (Apr. 22, 2021).
    On April 8, 2021, Hydro Flask filed a motion for summary 
determination of a violation of section 337 pursuant to Commission Rule 
210.16(c)(2) (19 CFR 210.16(c)(2)) to support its request for entry of 
a GEO with respect to all asserted patents and trademarks. OUII filed a 
response in support of the motion on August 9, 2021.
    On September 3, 2021, the CALJ issued the subject ID granting in 
part Hydro Flask's motion for summary determination. The ID finds that 
Hydro Flask has shown by reliable, probative, and substantial evidence 
that a violation of section 337 has occurred with respect to the '784, 
'365, and '888 trademarks,

[[Page 59425]]

and the D'468, D'012, and D'320 patents, and that the domestic industry 
requirement is satisfied for the Asserted Trademarks and Patents. The 
ID finds that a violation has been established with respect to ten out 
of thirteen defaulting respondents: Cangnan Kaiyisi E-Commerce 
Technology Co., Ltd.; Yongkang Huiyun Commodity Co., Ltd.; Wuyi Loncin 
Bottle Co., Ltd.; Zhejiang Yongkang Unique Industry & Trade Co., Ltd.; 
Suzhou Prime Gifts Co., Ltd.; Hangzhou Yuehua Technology Co., Ltd.; 
Guangzhou Yawen Technology Co., Ltd.; Jinhua City Ruizhi E-Commerce 
Co., Ltd.; Wo Ma Te (Tianjin) International Trade Co., Ltd.; and 
Shenzhen City Yaxin General Machinery Co., Ltd.
    The ID also finds that no violation has been established as to 
respondents Shenzhen Huichengyuan Technology Co., Ltd.; Sinbada Impex 
Co., Ltd.; and Zhejiang Yuchuan Industry & Trade Co., Ltd.
    The ID contains the CALJ's recommended determination on remedy and 
bonding (``RD''). The RD recommends issuance of a general exclusion 
order (``GEO'') with respect to the asserted patents and trademarks. 
The RD does not recommend issuance of any cease and desist orders 
(``CDOs''). No petitions for review were filed.
    Having examined the record of this investigation, the Commission 
has determined to review in part the subject ID. Specifically, the 
Commission has determined to review the ID's finding that Hydro Flask 
has satisfied the economic prong of the domestic industry requirement 
under Section 337(a)(3)(A). See ID at 89-92. On review, the Commission 
affirms the ID's findings that Hydro Flask has established a domestic 
industry under Section 337(a)(3)(A). Given the nature and extent of 
Hydro Flask's investments in plant and equipment as a whole, Hydro 
Flask is not a mere importer. As the ID correctly found, Hydro Flask 
conducts engineering, product development and design, quality 
assurance, customer support, research and development, product assembly 
and customization, and distribution in the United States and Hydro 
Flask's plant and equipment investments in these activities directed to 
the DI products are quantitatively and qualitatively significant. See 
ID at 89-92. The Commission notes that the nature and extent of Hydro 
Flask's investments distinguish this case from those in which 
complainants sought to establish a domestic industry almost entirely 
based on investments in sales, marketing, and/or distribution. As the 
Commission has previously stated, `` `[w]hile marketing and sales 
activity, alone, may not be sufficient to meet the domestic industry 
test, those activities may be considered as part of the overall 
evaluation of whether or not a Complainant meets the economic prong.' 
'' Certain Solid State Storage Drives, Stacked Electronics Components, 
and Products Containing the Same, Inv. No. 337-TA-1097, Commission Op. 
at 22 (June 29, 2018) (quoting Certain Printing and Imaging Devices and 
Components Thereof, Inv. No. 337-TA-690, Order No. 24 at 34 (Apr. 21, 
2010) (denying summary determination on the economic prong of the 
domestic industry requirement). Chair Kearns notes that some of the 
claimed investments in plant and equipment appear to be for activities 
that would be carried out by a mere importer, such as distribution and 
customer support, and that the record does not allow a breakout of 
investments for such activities. In affirming the ALJ's grant of 
summary determination here, he finds that given the apparent amount of 
domestic investments for activities such as engineering, product 
development, research and development, and manufacturing, and the 
qualitative importance of these activities to this industry, it is 
unlikely that discounting the investments that are those of a mere 
importer would cause him to question the existence of a domestic 
industry.
    In connection with the final disposition of this investigation, the 
Commission may issue an order that could result in the exclusion of the 
subject articles from entry into the United States. 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).
    If 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.
    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 action. 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 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 recommended 
determination by the ALJ on remedy and bonding.
    In their initial submissions, Complainants are requested to 
identify the remedy sought and Complainants Hydro Flask and OUII are 
requested to submit proposed remedial orders for the Commission's 
consideration. Hydro Flask is also requested to state the dates on 
which the asserted patents expire, to provide the HTSUS subheadings 
under which the accused products are imported, and to supply the names 
of 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 November 4, 2021. Reply 
submissions must be filed no later than the close of business on 
November 11, 2021. No further submissions on 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-1216'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, https://www.usitc.gov/secretary/documents/handbookonfilingprocedures.pdf).

[[Page 59426]]

Persons with questions regarding filing should contact the Secretary at 
(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 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 personnel1, solely for cybersecurity purposes. All non-
confidential written submissions will be available for public 
inspection at the Office of the Secretary and on EDIS.
    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: October 21, 2021.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2021-23359 Filed 10-26-21; 8:45 am]
BILLING CODE 7020-02-P