[Federal Register Volume 87, Number 33 (Thursday, February 17, 2022)]
[Notices]
[Pages 9086-9088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03404]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1196]


Certain In Vitro Fertilization Products, Components Thereof, and 
Products Containing the Same; Commission Decision Not To Review a Final 
Initial Determination Finding a 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 has determined not to review a final initial determination 
(``FID'') of the presiding Administrative Law Judge (``ALJ'') finding a 
violation of section 337 by respondents Fast IVF of Scottsdale, Arizona 
(``Fast IVF'') and Hermes Ezcanesi of Istanbul, Turkey (collectively, 
the ``Defaulting Respondents''). The Commission also requests written 
submissions from the parties, interested government agencies and 
interested persons, under the schedule set forth below, on remedy, the 
public interest, and bonding.

FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-4716. 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="a6e3e2eff595eec3cad6e6d3d5cfd2c588c1c9d0">[email protected]</span></a>. General information concerning the Commission may 
also be obtained by accessing its

[[Page 9087]]

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 April 16, 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 complainant EMD Serono, Inc. of Rockland, Massachusetts 
(``Complainant''). See 85 FR 21267-68 (Apr. 16, 2020). The complaint, 
as amended and supplemented, alleges a violation of 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 in 
vitro fertilization products, components thereof, and products 
containing same (collectively, ``Gray Market IVF Products''), by reason 
of infringement of U.S. Trademark Registration Nos. 4,689,651; 
1,772,761; 3,777,170; 3,389,332; 3,816,320; 1,972,079; 3,604,207; and 
3,185,427 (collectively, ``the Asserted Trademarks''); unfair methods 
of competition and unfair acts in the importation and sale of Gray 
Market IVF Products by reason of false designation of source; and 
unfair methods of competition and unfair acts in the importation and 
sale of the Gray Market IVF Products by reason of false advertising. 
See id. In addition to the Defaulting Respondents, the notice of 
investigation names General Plastik Drug Stores (``Unserved 
Respondent'') of Istanbul Suadiye, Turkey as a respondent in this 
investigation. See id. The Office of Unfair Import Investigations is 
also a party to the investigation. See id.
    On September 1, 2020, the Chief ALJ issued an initial determination 
(``ID'') finding each of the Defaulting Respondents in default. See 
Order No. 6 (Sept. 1, 2020), unreviewed by Comm'n Notice (Sept. 24, 
2020). On October 13, 2020, the Chief ALJ also issued an ID terminating 
Unserved Respondent from the investigation based on the withdrawal of 
the complaint allegations as to that respondent. See Order No. 8 (Oct. 
13, 2020), unreviewed by Comm'n Notice (Oct. 26, 2020).
    On April 16, 2021, the Chief ALJ issued an ID (Order No. 10) 
(``SD'') granting in part Complainant's motion for summary 
determination of violation of section 337 by the Defaulting Respondents 
with respect to Complainant's claim under section 337(a)(1)(C) 
(infringement of the Asserted Trademarks) but denied the motion with 
respect to Complainant's unfair competition claims under section 
337(a)(1)(A). The SD also finds that Complainant has satisfied the 
economic prong of the domestic industry requirement under subsection 
(C) of section 337(a)(3).
    On May 18, 2021, the Commission determined to review the SD (Order 
No. 10) in part. See Comm'n Notice (May 18, 2021). Specifically, the 
Commission determined to review the SD's findings with respect to the 
economic prong of the domestic industry requirement. See id. The 
Commission determined not to review any other findings in the SD.
    On October 6, 2021, the Commission determined to vacate the SD in 
part. Specifically, the Commission vacated the SD's finding that 
Complainant has satisfied the economic prong of the domestic industry 
requirement. Consequently, the Commission also vacated the SD's finding 
of a violation of section 337 and remanded the investigation to the 
Chief ALJ. Commissioners Karpel and Schmidtlein dissented from the 
Commission's decision that Complainant had failed to satisfy the 
economic prong of the domestic industry requirement and would have 
found a violation of Section 337 based on substantial, reliable, and 
probative evidence.
    After the Commission decision to vacate the SD, EMD Serono 
abandoned its request for a general exclusion order; thereafter, it 
requested a limited exclusion order against both defaulting respondents 
and a cease and desist order against FastIVF. See FID at 6 (citing 
Motion Docket No. 1196-008 at 1 n.1, 8-9). On December 15, 2021, the 
ALJ issued an ID partially terminating the investigation as to 
Complainant's unfair competition claims under section 337(a)(1)(A). See 
Order No. 13 (Dec. 15, 2021), unreviewed by Comm'n Notice (Jan 10, 
2022).
    On December 15, 2021, the ALJ issued the FID finding a violation of 
section 337 based on the infringement by the Defaulting Respondents of 
Complainant's Asserted Trademarks pursuant to section 337(g)(1), 19 
U.S.C. 1337(g)(1). In addition, the ALJ recommended that the Commission 
issue a limited exclusion order (``LEO'') against the infringing 
articles imported by or on behalf of the Defaulting Respondents and a 
cease and desist order (``CDO'') against FastIVF.
    No petition for review of the FID was filed.
    On January 4, 2022, Complainant filed a statement on the public 
interest pursuant to Commission Rule 210.50, 19 CFR 210.50. On the same 
day, Complainant filed a declaration requesting relief against the 
Defaulting Respondents, namely, an LEO against the Defaulting 
Respondents' infringing products and a CDO against FastIVF. No third-
party submissions were filed in response to the Federal Register notice 
requesting public interest comments. See 86 FR 72620-21 (Dec. 22, 
2021).
    The Commission has determined not to review the FID.
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result 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 
respondent(s) 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).
    If 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.
    If the Commission orders some form of remedy, the U.S. Trade 
Representative, as delegated by the President, has 60 days to approve 
or 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

[[Page 9088]]

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: 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 also address the recommended 
determination by the ALJ on remedy and bonding. Complainant is also 
requested to submit proposed remedial orders for the Commission's 
consideration. Complainant is further requested to provide the HTSUS 
numbers under which the accused products are imported, and to supply 
the names of known importers of the products at issue in this 
investigation.
    Written submissions and proposed remedial orders must be filed no 
later than close of business on February 28, 2022. Reply submissions 
must be filed no later than the close of business on March 7, 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 (March 19, 2020). Submissions should refer to the 
investigation number (``Inv. No. 337-TA-1196'') 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. 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 non-confidential written submissions will be available 
for public inspection at the Office of the Secretary and on EDIS.
    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(s) 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).
    The Commission's vote for this determination took place on February 
11, 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 11, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-03404 Filed 2-16-22; 8:45 am]
BILLING CODE 7020-02-P


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