[Federal Register Volume 88, Number 60 (Wednesday, March 29, 2023)]
[Notices]
[Pages 18586-18588]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06450]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1311]


Certain Centrifuge Utility Platform and Falling Film Evaporator 
Systems and Components Thereof; Commission Decision Terminating One 
Respondent Based on Settlement; Issuing an Exclusion Order and Cease 
and Desist Orders; Terminating the Investigation

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 terminate one of the 
seven defaulting respondents from the investigation on the basis of 
settlement. The Commission has also determined to issue a limited 
exclusion order (``LEO'') barring entry of certain centrifuge utility 
platform and falling film evaporator systems and components thereof 
that are imported by or on behalf of the six remaining defaulting 
respondents. The Commission has further determined to issue cease and 
desist orders (``CDOs'') as to three of the six remaining defaulting 
respondents. The investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Esq., 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 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: The Commission instituted this investigation 
on May 4, 2022. 87 FR 26372 (May 4, 2022). The complaint, as 
supplemented, alleged violations of section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337, in the importation into the United 
States, the sale for importation, or the sale within the United States 
after importation of certain centrifuge utility platform and falling 
film evaporator systems and components thereof by reason of 
infringement of claims 1, 10, and 14 of U.S. Patent No. 10,814,338 
(``the '338 patent''); claims 1, 10, and 18 of U.S. Patent No. 
11,014,098 (``the '098 patent''); and claims 1, 9, and 19 of U.S. 
Patent No. 10,899,728 (``the '728 patent''). Id. The complaint further 
alleged that a domestic industry exists. Id. The Commission's notice of 
investigation named fifteen respondents, including Ambiopharm, Inc. of 
Beech Island, South Carolina (``Ambiopharm''); RI Hemp Farms, LLC of 
West Greenwich, Rhode Island (``RI Hemp Farms''); Henan Lanphan 
Industry Co., Ltd. of Zhengzhou, China (``Henan Lanphan''); Toption 
Instrument Co., Ltd. of Xi'an, China (``Toption''); Ezhydro of 
Sacramento, California (``Ezhydro''); Shanghai Yuanhuai Industries Co., 
Ltd. of Shanghai City, China (``Shanghai Yuanhuai''); Zhangjiagang 
Chunk d/b/a Charme Trading Corp. of Suzhou Shi, China (``Charme''); 
Calpha Industries, Inc. of Laguna Hills, California (``Calpha''); 
Comerg, LLC of Phoenix, Arizona (``Comerg''); HX Labs, LLC of Albany, 
Oregon (``HX''); Idea Makers, LLC of Lake City, Utah (``Idea Makers''); 
Lab1st Scientific and Industrial Equipment, Inc. of Shanghai, China 
(``Lab1st''); Miracle Education Distributors, Inc. of Cathedral City, 
California (``Miracle''); Mountain Pure, LLC of Vineyeard, Utah 
(``Mountain Pure''); and Redford Management of Los Angeles, California 
(``Redford''). Id. at 26373. The Office of Unfair Import Investigations 
(``OUII'') is also participating in the investigation. Id.
    On August 4, 2022, the Commission determined not to review an 
initial determination (Order No. 15) finding Ambiopharm and RI Hemp 
Farms in default. Order No. 15 (July 7, 2022), unreviewed by Comm'n 
Notice (Aug. 4, 2022). On August 4, 2022, the Commission determined not 
to review an initial determination (Order No. 21) finding Henan Lanphan 
and Toption in default. Order No. 21 (July 19, 2022), unreviewed by 
Comm'n Notice (Aug. 5, 2022). Also on August 4, 2022, the

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Commission determined not to review an initial determination (Order No. 
22) finding Ezhydro in default. Order No. 22 (July 20, 2022), 
unreviewed by Comm'n Notice (Aug. 5, 2022). On August 29, 2022, the 
Commission determined not to review an initial determination (Order No. 
26) finding Shanghai Yuanhuai and Charme in default. Order No. 26 (July 
29, 2022), unreviewed by Comm'n Notice (Aug. 29, 2022). All other 
respondents named in the notice of investigation have been terminated 
from the investigation. Respondents Mountain Pure, Rexford, Comerg and 
Miracle were terminated from the investigation based on complaint 
withdrawal. Order No. 7 (May 25, 2022), unreviewed by Comm'n Notice 
(June 21, 2022); Order No. 20 (July 19, 2022), unreviewed by Comm'n 
Notice (Aug. 4, 2022); Order No. 24 (July 25, 2022), unreviewed by 
Comm'n Notice (Aug. 4, 2022); Order No. 25 (July 28, 2022), unreviewed 
by Comm'n Notice (Aug. 29, 2022). Respondents HX, Calpha, Lab1st, and 
Idea Makers were terminated based on settlement. See Order No. 14 (July 
5, 2022), unreviewed by Comm'n Notice (Aug. 2, 2022); Order No. 18 
(July 15, 2022), unreviewed by Comm'n Notice (Aug. 4, 2022); Order No. 
23 (July 25, 2022), unreviewed by Comm'n Notice (Aug. 4, 2022).
    On September 1, 2022, complainant Apeks, LLC (``Apeks'') filed a 
``Written Submission on Remedy, the Public Interest and Bonding.'' On 
September 20, 2022, Apeks filed a motion to terminate the investigation 
as to defaulting respondent Toption based on settlement. Apeks filed a 
corrected version of that motion thereafter on September 23, 2022. On 
the same day, OUII filed a response supporting Apeks' motion to 
terminate Toption from the investigation. Apeks' motion is currently 
pending before the Commission.
    On September 30, 2022, the Commission requested written submissions 
from the parties to the investigation, interested government agencies, 
and any other interested parties on the issues of remedy, the public 
interest, and bonding. Notice, 87 FR 60414 (Oct. 5, 2022). On October 
14, 2022, Apeks and OUII each filed an opening submission on these 
issues.\1\ On October 21, 2022, OUII filed a reply to Apeks' opening 
submission.\2\ No other submissions were received.
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    \1\ Compl't Apeks' Written Submission on Remedy, the Public 
Interest and Bonding (Oct. 14, 2022) (``Apeks Opening Submission''); 
Brief of the Office of Unfair Import Investigations on Remedy, the 
Public Interest, and Bonding (Oct. 14, 2022) (``OUII Opening 
Submission'').
    \2\ Reply Brief of the Office of Unfair Import Investigations on 
Remedy, the Public Interest, and Bonding (Oct. 21, 2022) (``OUII 
Reply Submission'').
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    Having examined the record of the investigation, including Apeks' 
corrected motion to terminate the investigation as to Toption because 
of settlement, and the response thereto, the Commission has determined 
to grant the motion to terminate the investigation as to Toption on the 
basis of settlement. Accordingly, for the purpose of determining 
remedy, the public interest, and bonding, six defaulting respondents 
remain: Ambiopharm, RI Hemp Farms, Henan Lanphan, Ezhydro, Shanghai 
Yuanhuai, and Charme (collectively, the ``Defaulting Respondents'').
    When the conditions in section 337(g)(1)(A)-(g)(1)(E) (19 U.S.C. 
1337(g)(1)(A)-(g)(1)(E)) have been satisfied, section 337(g)(1) and 
Commission Rule 210.16(c) (19 CFR 210.16(c)) direct the Commission, 
upon request, to issue a limited exclusion order or a cease and desist 
order or both against a respondent found in default, based on the 
allegations regarding a violation of section 337 in the Complaint, 
which are presumed to be true, unless after consideration of the public 
interest factors in section 337(g)(1), it finds that such relief should 
not issue.
    Having examined the record of this investigation, including the 
submissions in response to the Commission's notice, the Commission has 
determined pursuant to subsection 337(g)(1) that the appropriate remedy 
in this investigation is an LEO prohibiting the unlicensed entry of 
certain centrifuge utility platform and falling film evaporator systems 
and components thereof that infringe one or more of claims 1, 10, and 
14 of the '338 patent and claims 1, 10, and 18 of the '098 patent, and 
that are imported by or on behalf of Ambiopharm, RI Hemp Farms, 
Shanghai Yuanhui, or Charme. In addition, and consistent with the 
infringement allegations in the complaint, the LEO prohibits the 
unlicensed entry of certain centrifuge utility platform and falling 
film evaporator systems and components thereof that infringe one or 
more of claims 1, 9, and 19 of the '728 patent, and that are imported 
by Henan Lanphan, EZhydro, or Shanghai Yuanhuai. The Commission has 
further determined to issue cease and desist orders directed to the 
domestic respondents, Ambiopharm, RI Hemp Farms, and Ezydro. Because 
there is no support in the record for commercially significant U.S. 
inventories and/or significant commercial business operations in the 
United States as to the foreign respondents, Henan Lanphan, Shanghai 
Yuanhai, or Charme, the Commission, consistent with its customary 
practice, declines to issue cease and desist orders as to them.\3\ See 
Electric Skin Care Devices, Comm'n Op. at 29-30. The Commission finds 
that the public interest factors enumerated in subsection 337(g)(1) do 
not preclude the issuance of the LEO or the CDOs.
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    \3\ Commissioners Karpel and Schmidtlein would have issued cease 
and desist orders as to the foreign defaulting respondents, 
regardless of domestic business operations or inventories, for the 
reasons explained in, for example, Certain Vaporizer Cartridges and 
Components Thereof, Inv. No. 337-TA-1211, Comm'n Op. at 13-14 (Mar. 
1, 2022).
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    As to bonding, Apeks argues that 19 U.S.C. 1337(j)(3) ``does not 
authorize the Commission to permit defaulted respondents subject to an 
exclusion order under'' 19 U.S.C. 1337(g)(1) ``to import infringing 
products under bond during the Presidential review period.'' Apeks 
Opening Submission at 10. In the alternative, Apeks asserts that bond 
during the period of Presidential review should be set at one hundred 
percent (100%) of the entered value of the imported articles that are 
the subject of the LEO. Id.
    In response, OUII asserts that the Commission has the discretion to 
impose a bond during Presidential review. OUII Reply Submission at 2. 
OUII further notes that it is customary for the Commission to include 
bonding provisions even as to defaulting respondents. Id. at 2-3.
    Having reviewed the text and legislative history of section 337,\4\ 
the Commission notes that its consistent practice, including before and 
after the 1994 amendments to section 337, has been to impose a bond 
during the Presidential review period, including as to defaulting 
parties. E.g., Certain Toothbrushes and the Packaging Thereof, Inv. No. 
337-TA-391, Comm'n Notice, 62 FR 54855 (Oct. 22, 1997); Certain 
Electrical Connectors and Products Containing Same, Inv. No. 337-TA-
374, Comm'n Notice, 61 FR 21208 (May 9, 1996); Certain Woodworking 
Accessories, Inv. No. 337-TA-333, Comm'n Notice, 58 FR 4718 (Jan. 15, 
1993); Certain Soft Drinks and Their Containers, Inv. No. 337-TA-321, 
Comm'n Notice, 57 FR 304 (Jan. 3, 1992); Certain Key Blanks for Keys of

[[Page 18588]]

High Security Cylinder Locks, No. 337-TA-308, Comm'n Notice, 55 FR 
35372 (Aug. 29, 1990). The Commission finds no indication that Congress 
intended to constrain the Commission's authority to impose a bond 
during the Presidential review period as to defaulting respondents nor 
any statutory constraint that would override the Commission's long-
standing practice. Further, the Commission notes that it has ``broad 
discretion in selecting the form, scope and extent of the remedy.'' 
Viscofan, S.A. v. United States Int'l Trade Comm'n, 787 F.2d 544, 548 
(Fed. Cir. 1986). Accordingly, the Commission finds that it is within 
its remedial discretion to allow bonding during the Presidential review 
period as to the Defaulting Respondents. Accordingly, in this 
investigation, the Commission has determined that the bond during the 
period of Presidential review pursuant to section 337(j) (19 U.S.C. 
1337(j)) shall be in the amount of one hundred percent (100%) of the 
entered value of the subject articles as requested by Apeks.\5\ The 
investigation is terminated.
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    \4\ See, e.g., Omnibus Trade and Competitiveness Act of 1988, 
Public Law 100-418, 1341-1342, 102 Stat. 1107, 1211-16 (1988); H.R. 
Rep. No. 100-40 (Part I), at 160-62 (1987); S. Rep. No. 100-71, at 
132 (1987); Uruguay Round Agreements Act, Public Law 103-465, 321, 
108 Stat. 4809, 4943-44 (1994); S. Rep. 103-412, at 120 (1994).
    \5\ Commissioner Schmidtlein agrees with Apeks' argument that 
section 337 does not authorize the Commission to permit the 
Defaulting Respondents to import infringing products under bond 
during the Presidential review period. To her knowledge, this is the 
first time this issue has been raised by a party in an 
investigation. She observes that the bonding provision of the 
statute, section 337(j)(3), only authorizes importation during the 
Presidential review period under bond for ``articles directed to be 
excluded from entry under subsection (d) or subject to a cease and 
desist order under subsection (f).'' The Defaulting Respondents are 
subject to remedial relief under subsection (g) not subsections (d) 
or (f). Subsection (g) governs remedial relief for respondents that 
do not participate in 337 investigations. By the plain language of 
section 337(j)(3), the ability to import under bond is unavailable 
for default remedies issued under subsection (g). Commissioner 
Schmidtlein finds nothing in the legislative history that speaks to 
this issue and even if it did it could not be used to change the 
plain language of the statute. See In re City of Houston, 731 F.3d 
1326, 1333 (Fed. Cir. 2013) (legislative history cannot be used to 
contravene the plain language of statute). She also does not agree 
that the discretion retained by the Commission when it comes to 
selecting the form, scope and extent of the remedy permits it to act 
contrary to the plain language of the statute. She would therefore 
grant Apeks' request and not authorize the Defaulting Respondents to 
import infringing products under bond during the Presidential review 
period.
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    The Commission vote for this determination took place on March 23, 
2023.
    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).
    While temporary remote operating procedures are in place in 
response to COVID-19, the Office of the Secretary is not able to serve 
parties that have not retained counsel or otherwise provided a point of 
contact for electronic service. Accordingly, pursuant to Commission 
Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the 
Commission orders that the Complainant complete service for any party/
parties without a method of electronic service noted on the attached 
Certificate of Service and shall file proof of service on the 
Electronic Document Information System (EDIS).

    By order of the Commission.

    Issued: March 23, 2023.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2023-06450 Filed 3-28-23; 8:45 am]
BILLING CODE 7020-02-P