[Federal Register Volume 87, Number 27 (Wednesday, February 9, 2022)]
[Notices]
[Pages 7499-7501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02670]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1255]
Certain Apparatus and Methods of Opening Containers; Commission
Determination Not To Review an Initial Determination Granting
Complainant's Motion for Summary Determination of 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 Commission has determined not
to review an initial determination (``ID'') issued by the presiding
administrative law judge (``ALJ'') granting summary determination of
violation of section 337 in the above-captioned investigation. 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 March 18, 2021, the Commission instituted
this investigation based on a complaint filed by Draft Top, LLC
(``Draft Top'') of Long Beach, New Jersey. 86 FR 14765 (Mar.
[[Page 7500]]
18, 2021). The complaint, as supplemented, 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, and the sale within the United States after
importation of certain apparatus and methods of opening containers by
reason of infringement of claim 12 of U.S. Patent No. 10,519,016 (``the
'016 patent''). Id. The complaint further alleges that a domestic
industry exists. Id. The notice of investigation named nine
respondents: KKS Enterprises Co., Ltd. of Hangzhou, China; Kingskong
Enterprises Co., Ltd. of Hangzhou, China; Du Zuojun of Shenzhen,
Guangdong, China; WN Shipping USA, Inc. of Inwood, New York; Shuje Wei
of Pomona, California; Express Cargo Forwarded, Ltd. of Los Angeles,
California; Hou Wenzheng of Hebron, Kentucky (collectively, the
``Defaulting Respondents''); Mintiml of Yangzhou, Jiangsu, China; and
Tofba International, Inc. (``Tofba'') of Hawthorne, California. Id. The
Office of Unfair Import Investigations (``OUII'') is also named as a
party. Id.
On May 27, 2021, the Commission determined to terminate the
investigation as to respondent Tofba based on withdrawal of the
allegations in the complaint directed to Tofba. Order No. 6 (May 12,
2021), unreviewed by Comm'n Notice (May 27, 2021). On July 29, 2021,
the Commission determined to find the Defaulting Respondents in default
for failing to respond to the complaint and notice of investigation and
failing to show cause why they should not be found in default. Order
No. 8 (July 12, 2021), unreviewed by Comm'n Notice (July 30, 2021). On
August 24, 2021, the Commission determined to terminate the
investigation as to respondent Mintiml based on withdrawal of the
allegations in the complaint directed to Mintiml. Order No. 9 (Aug. 11,
2021), unreviewed by Comm'n Notice (Aug. 24, 2021).
On August 20, 2021, Draft Top filed a motion for summary
determination of violation of section 337 by the Defaulting
Respondents, requesting issuance of a general exclusion order (``GEO'')
and setting a 300 percent bond for any importations of infringing goods
during the period of Presidential review. On September 17, 2021, Draft
Top filed a supplement to its motion. That same day, OUII filed a
response supporting Draft Top's motion except on the issue of bonding
(OUII submits that a bond of 100 percent, not 300 percent, is
appropriate). No Defaulting Respondent filed a response to Draft Top's
motion.
On December 20, 2021, the ALJ issued the subject ID granting Draft
Top's motion and finding violations of section 337 by the Defaulting
Respondents. Specifically, the ID finds that: (i) Draft Top satisfied
the importation requirement as to the Defaulting Respondents; (ii) the
Commission has subject matter, personal, and in rem jurisdiction in
this investigation; (iii) the Defaulting Respondents' accused products
practice claim 12 of the '016 patent; (iv) claim 12 of the '016 patent
has not been shown invalid; and (v) Draft Top satisfied the technical
and economic prongs of the domestic industry requirement as to the '016
patent. The ID also includes the ALJ's recommended determination on
remedy and bonding, recommending that, should the Commission determine
that violations of section 337 occurred, then the Commission issue a
GEO and set a 100 percent bond for any importations of infringing
products during the period of Presidential review. No petitions for
review of the subject ID were filed.
The Commission did not receive any submissions on the public
interest from the parties pursuant to Commission Rule 210.50(a)(4) (19
CFR 210.50(a)(4)). The Commission also did not receive any submissions
on the public interest from members of the public in response to the
Commission's Federal Register notice. 87 FR 238-39 (Jan. 4, 2022).
Having reviewed the record in this investigation, including the
subject ID, the Commission has determined not to review the ID's
finding of violations of section 337.
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) a cease and desist order 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).
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 cease and desist order 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, 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, Draft Stop and OUII are
requested to submit proposed remedial orders for the Commission's
consideration. Draft Stop is further requested to identify the date the
asserted patent expires, 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 February 17, 2022.
Reply submissions must be filed no later than the close of business on
February 24, 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.
[[Page 7501]]
19, 2020). Submissions should refer to the investigation number (Inv.
No. 337-TA-1255) 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,\1\ solely for cybersecurity purposes.
All contract personnel will sign appropriate nondisclosure agreements.
All nonconfidential written submissions will be available for public
inspection on EDIS.
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\1\ All contract personnel will sign appropriate nondisclosure
agreements.
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The Commission vote for this determination took place on February
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: February 3, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-02670 Filed 2-8-22; 8:45 am]
BILLING CODE 7020-02-P