[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 
<a href="/cdn-cgi/l/email-protection#3c7978756f0f7459504c7c494f55485f125b534a"><span class="__cf_email__" data-cfemail="ffbabbb6acccb79a938fbf8a8c968b9cd1989089">[email protected]</span></a>. 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


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