[Federal Register Volume 86, Number 230 (Friday, December 3, 2021)]
[Notices]
[Pages 68684-68686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26248]



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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.

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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. 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 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 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

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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, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf.). 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

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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