4044 Federal Register / Vol. 87, No. 17 / Wednesday, January 26, 2022 / Notices 

1Handbook for Electronic Filing Procedures: 

https://www.usitc.gov/documents/handbook_on_

filing_procedures.pdf. 

2All contract personnel will sign appropriate 

nondisclosure agreements. 

3Electronic Document Information System 

(EDIS): https://edis.usitc.gov. 

issuance of the relief specifically 

requested by the complainant in this 

investigation would affect the public 

health and welfare in the United States, 

competitive conditions in the United 

States economy, the production of like 

or directly competitive articles in the 

United States, or United States 

consumers. 

In particular, the Commission is 

interested in comments that: 

(i) Explain how the articles 

potentially subject to the requested 

remedial orders are used in the United 

States; 

(ii) identify any public health, safety, 

or welfare concerns in the United States 

relating to the requested remedial 

orders; 

(iii) identify like or directly 

competitive articles that complainant, 

its licensees, or third parties make in the 

United States which could replace the 

subject articles if they were to be 

excluded; 

(iv) indicate whether complainant, 

complainant’s licensees, and/or third 

party suppliers have the capacity to 

replace the volume of articles 

potentially subject to the requested 

exclusion order and/or a cease and 

desist order within a commercially 

reasonable time; and 

(v) explain how the requested 

remedial orders would impact United 

States consumers. 

Written submissions on the public 

interest must be filed no later than by 

close of business, eight calendar days 

after the date of publication of this 

notice in the Federal Register. There 

will be further opportunities for 

comment on the public interest after the 

issuance of any final initial 

determination in this investigation. Any 

written submissions on other issues 

must also be filed by no later than the 

close of business, eight calendar days 

after publication of this notice in the 

Federal Register. Complainant may file 

replies to any written submissions no 

later than three calendar days after the 

date on which any initial submissions 

were due. No other submissions will be 

accepted, unless requested by the 

Commission. Any submissions and 

replies filed in response to this Notice 

are limited to five (5) pages in length, 

inclusive of attachments. 

Persons filing written submissions 

must file the original document 

electronically on or before the deadlines 

stated above. Submissions should refer 

to the docket number (‘‘Docket No. 

3599’’) in a prominent place on the 

cover page and/or the first page. (See 

Handbook for Electronic Filing 

Procedures, Electronic Filing 

Procedures 1). Please note the 

Secretary’s Office will accept only 

electronic filings during this time. 

Filings must be made through the 

Commission’s Electronic Document 

Information System (EDIS, https://

edis.usitc.gov.) No in-person paperbased filings or paper copies of any 

electronic filings will be accepted until 

further notice. Persons with questions 

regarding filing should contact the 

Secretary at EDIS3Help@usitc.gov. 

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,2 solely for cybersecurity 

purposes. All nonconfidential written 

submissions will be available for public 

inspection at the Office of the Secretary 

and on EDIS.3

This action is taken under the 

authority of section 337 of the Tariff Act 

of 1930, as amended (19 U.S.C. 1337), 

and of §§ 201.10 and 210.8(c) of the 

Commission’s Rules of Practice and 

Procedure (19 CFR 201.10, 210.8(c)). 

By order of the Commission. 

Issued: January 20, 2022. 

Lisa Barton, 

Secretary to the Commission. 

[FR Doc. 2022–01438 Filed 1–25–22; 8:45 am] 

BILLING CODE 7020–02–P 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation No. 337–TA–1226] 

Certain Artificial Eyelash Extension 

Systems, Products, and Components 

Thereof; Commission Determination 

To Review in Part a Final Initial 

Determination Finding No Violation of 

Section 337; Schedule for Filing 

Written Submissions on Issues Under 

Review and on Remedy, Public 

Interest, and Bonding; Extension of 

Target Date 

AGENCY: U.S. International Trade 

Commission. 

ACTION: Notice. 

SUMMARY: Notice is hereby given that 

the U.S. International Trade 

Commission (‘‘Commission’’) has 

determined to review in part a final 

initial determination (‘‘FID’’) of the 

presiding chief administrative law judge 

(‘‘ALJ’’) finding no violation of section 

337 of the Tariff Act of 1930, as 

amended, in the above-captioned 

investigation. The Commission requests 

briefing from the parties on certain 

issues under review, as indicated in this 

notice. The Commission also requests 

briefing from the parties, interested 

government agencies, and interested 

persons on the issues of remedy, the 

public interest, and bonding. The 

Commission has also determined to 

extend the target date in the abovecaptioned investigation to April 27, 

2022. 

FOR FURTHER INFORMATION CONTACT: 

Lynde Herzbach, Office of the General 

Counsel, U.S. International Trade 

Commission, 500 E Street SW, 

Washington, DC 20436, telephone (202) 

205–3228. 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 

EDIS3Help@usitc.gov. 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 

October 28, 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 

Lashify, Inc. of Glendale, California 

(‘‘Lashify’’). See 85 FR 68366–67. The 


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Federal Register / Vol. 87, No. 17 / Wednesday, January 26, 2022 / Notices 4045 

complaint, as supplemented, alleges a 

violation of section 337 based upon the 

importation into the United States, sale 

for importation, or sale after importation 

into the United States of certain 

artificial eyelash extension systems, 

products, and components thereof by 

reason of infringement of certain claims 

of U.S. Patent Nos. 10,660,388 (‘‘the 

’388 patent’’) and 10,721,984 (‘‘the ’984 

patent’’), and the sole claim of U.S. 

Design Patent Nos. D877,416 (‘‘the 

D’416 patent’’) and D867,664 (‘‘the 

D’664 patent’’), respectively 

(collectively, the ‘‘Asserted Patents’’). 

The complaint also alleges the existence 

of a domestic industry. The notice of 

investigation (‘‘NOI’’) names nine 

respondents, including: KISS Nail 

Products, Inc. of Port Washington, New 

York (‘‘KISS’’); Ulta Beauty, Inc. of 

Bolingbrook, Illinois (‘‘Ulta’’); CVS 

Health Corporation of Woonsocket, 

Rhode Island (‘‘CVS’’); Walmart, Inc. of 

Bentonville, Arkansas (‘‘Walmart’’); 

Qingdao Hollyren Cosmetics Co., Ltd. d/ 

b/a Hollyren of Shandong Province, 

China; Qingdao Xizi International 

Trading Co., Ltd. d/b/a Xizi Lashes of 

Shandong Province, China; Qingdao 

LashBeauty Cosmetic Co., Ltd. d/b/a 

Worldbeauty of Qingdao, China; Alicia 

Zeng d/b/a Lilac St. and Artemis Family 

Beginnings, Inc. of San Francisco, 

California; and Rachael Gleason d/b/a 

Avant Garde Beauty Co. of Dallas, 

Texas. Id. The Office of Unfair Import 

Investigations is also a party to the 

investigation. Id. 

The Commission later amended the 

complaint and NOI to substitute CVS 

Pharmacy, Inc. of Woonsocket, Rhode 

Island in place of named respondent 

CVS Health Corporation and Ulta Salon, 

Cosmetics & Fragrance, Inc. of 

Bolingbrook, Illinois in place of named 

respondent Ulta Beauty, Inc. See Order 

No. 10, unreviewed by Comm’n Notice 

(Feb. 10, 2021); see also 86 FR 9535 

(Feb. 16, 2021). 

The Commission previously 

terminated the investigation as to claims 

2–4 and 7 of the ’388 patent and claims 

6–8, 12, 18–19, 25–26, and 29 of the 

’984 patent based on Complainant’s 

partial withdrawal of the complaint. See 

Order No. 24 (Apr. 23, 2021), 

unreviewed by Comm’n Notice (May 11, 

2021). The Commission also previously 

terminated claims 2–5, 10–11, 14, 17, 

21–22, and 24 of the ’984 patent from 

the investigation. See Order No. 38 

(June 22, 2021), unreviewed by Comm’n 

Notice (July 6, 2021). 

The Commission previously 

terminated Rachael Gleason d/b/a Avant 

Garde Beauty Company from the 

investigation based on a Consent Order. 

See Order No. 28, unreviewed by 

Comm’n Notice (May 20, 2021). 

The Commission previously 

determined that Lashify failed to satisfy 

the technical prong of the domestic 

industry requirement for the ’388 

patent, thus terminating that patent 

from the investigation. See Order No. 

35, unreviewed by Comm’n Notice (July 

9, 2021). 

On October 28, 2021, the presiding 

ALJ issued the FID, finding that no 

violation of section 337 has occurred in 

the importation into the United States, 

the sale for importation, or the sale 

within the United States after 

importation, of certain artificial eyelash 

extension systems, products, and 

components thereof. FID at 141–142. 

The FID finds that two accused products 

infringe the ’984 patent, the’984 patent 

is not invalid, and Lashify has failed to 

satisfy the technical prong of the 

domestic industry requirement with 

respect to the ’984 patent. The FID 

further finds that the D’416 patent and 

D’664 patent are infringed and not 

invalid, and Lashify satisfied the 

technical prong with respect to both 

design patents. The FID further finds 

that Lashify has failed to satisfy the 

economic prong of the domestic 

industry requirement with respect to all 

of the Asserted Patents remaining in the 

investigation. The FID also includes the 

ALJ’s recommended determination on 

remedy and bonding should the 

Commission find a violation of section 

337. Specifically, the ALJ recommended 

a limited exclusion order directed to 

certain artificial eyelash extension 

systems, products, and components 

thereof, and cease and desist orders 

directed to KISS, Ulta, CVS, and 

Walmart. 

On November 9, 2021, Lashify filed a 

petition for review of the FID’s findings 

of non-infringement, that Lashify has 

failed to satisfy the technical prong of 

the domestic industry requirement with 

respect to the ’984 patent, and that 

Lashify has not satisfied the economic 

prong of the domestic industry 

requirement with respect to any of the 

patents-in-suit. That same day, 

Respondents filed a contingent petition 

seeking review of alleged additional, 

independent grounds of noninfringement and invalidity to support 

the FID’s finding of no violation. 

On November 17, 2021, Lashify, 

Respondents, and OUII filed their 

respective responses to the petitions for 

review. 

On November 29, 2021, respondents 

KISS, Ulta, Walmart, and CVS filed a 

joint submission on the public interest 

pursuant to Commission Rule 

210.50(a)(4) (19 CFR 210.50 (a)(4)). 

Lashify and OUII did not file a 

statement on the public interest. No 

submissions were received in response 

to the Commission notice seeking public 

interest submissions. 86 FR 62844–45 

(Nov. 12, 2021). 

Having examined the record of the 

investigation, including the FID, the 

petitions for review, and the responses 

thereto, the Commission has determined 

to review the FID in part. In particular, 

as to the ’984 patent, the Commission 

has determined to review: (1) The FID’s 

findings regarding the technical prong 

of the domestic industry requirement; 

and (2) the FID’s findings that the 

asserted claims of the ’984 patent are 

not invalid as obvious. The Commission 

has further determined to review the 

FID’s findings regarding the economic 

prong of the domestic industry 

requirement. The Commission has 

determined not to review the remainder 

of the FID. 

The Commission has also determined 

to extend the target date for completing 

this investigation until April 27, 2022. 

In connection with its review, the 

Commission requests responses to the 

following questions. The parties are 

requested to brief their positions with 

reference to the applicable law and the 

existing evidentiary record. 

(1) Please discuss whether 

Complainant should be considered a 

mere importer when its domestic 

activities and investments are evaluated 

as a whole with respect to the asserted 

patents, rather than when its domestic 

activities and investments are evaluated 

in a ‘‘line-by-line’’ approach, with 

citation to the record evidence. 

(2) To the extent Complainant is not 

a mere importer and certain domestic 

activities and investments with respect 

to the asserted patents excluded by the 

FID (see e.g., certain warehousing/ 

distribution, quality control, and/or 

sales and marketing expenditures) 

should be credited as cognizable 

domestic industry investments, please 

discuss whether Complainant’s 

cognizable domestic industry 

investments are significant or 

substantial within the meaning of 

section 337(a)(3)(A)–(C), with citation to 

record evidence. Please be sure to 

provide your explanation and data 

separately for each asserted patent. 

The parties are invited to brief only 

the discrete issues requested above. The 

parties are not to brief other issues on 

review, which are adequately presented 

in the parties’ existing filings. 

In connection with the final 

disposition of this investigation, the 

statute authorizes issuance of, inter alia, 

(1) an exclusion order that could result 

in the exclusion of the subject articles 


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4046 Federal Register / Vol. 87, No. 17 / Wednesday, January 26, 2022 / Notices 

from entry into the United States; and/ 

or (2) 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 

(Dec. 1994). In particular, the written 

submissions should address any request 

for a cease and desist order 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). Specifically, if Complainant 

seeks a cease and desist order, the 

written submissions should respond to 

the following requests: 

(1) Please identify with citations to 

the record any information regarding 

commercially significant inventory in 

the United States as to each respondent 

against whom a cease and desist order 

is sought. If Complainant also relies on 

other significant domestic operations 

that could undercut the remedy 

provided by an exclusion order, please 

identify with citations to the record 

such information as to each respondent 

against whom a cease and desist order 

is sought. 

(2) 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 cease and desist order 

is sought. 

The statute requires the Commission 

to consider the effects of that 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 

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 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 to 

the investigation are requested to file 

written submissions on the issues 

identified in this notice. In addition, the 

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, 

Complainant is also requested to 

identify the remedy sought and 

Complainant and OUII are requested to 

submit proposed remedial orders for the 

Commission’s consideration. 

Complainant is further requested to 

state the dates that the Asserted Patents 

remaining in the investigation 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 February 3, 2022. Reply 

submissions must be filed no later than 

the close of business on February 10, 

2022. 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–1226) 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 nonconfidential 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 January 20, 

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: January 20, 2022. 

Lisa Barton, 

Secretary to the Commission. 

[FR Doc. 2022–01457 Filed 1–25–22; 8:45 am] 

BILLING CODE 7020–02–P 


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