Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Notices 41509 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation No. 337–TA–1199] 

Certain Tobacco Heating Articles and 

Components Thereof; Commission 

Determination To Review in Part a 

Final Initial Determination Finding a 

Violation of Section 337; Schedule for 

Filing Written Submissions on Issues 

Under Review and on Remedy, Public 

Interest, and Bonding 

AGENCY: 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 administrative law judge 

(‘‘ALJ’’) finding a 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. 

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 May 

15, 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 RAI Strategic 

Holdings, Inc., R.J. Reynolds Vapor 

Company, and R.J. Reynolds Tobacco 

Company, all of Winston-Salem, North 

Carolina (collectively, ‘‘Complainants’’). 

See 85 FR 29482–83. The complaint, as 

supplemented, alleges a violation of 

section 337 based upon the importation 

of certain tobacco heating articles and 

components thereof by reason of 

infringement of certain claims of U.S. 

Patent Nos. 9,839,238 (‘‘the ’238 

patent’’); 9,930,915 (‘‘the ’915 patent’’); 

9,901,123 (‘‘the ’123 patent) 

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

The complaint also alleges the existence 

of a domestic industry. The notice of 

investigation names five respondents: 

Altria Client Services LLC, Altria Group, 

Inc. (‘‘AGI’’), and Philip Morris USA, 

Inc., all of Richmond, Virginia; Philip 

Morris International Inc. (‘‘PMI’’) of 

New York, New York; and Philip Morris 

Products S.A. of Neuchatel, Switzerland 

(collectively, ‘‘Respondents’’). See id. 

The Office of Unfair Import 

Investigations (‘‘OUII’’) is also a party to 

the investigation. See id. 

The Commission previously 

terminated respondents AGI and PMI 

from the investigation based on 

Complainants’ partial withdrawal of the 

complaint. See Order No. 24 (Dec. 14, 

2020), unreviewed by Comm’n Notice 

(Jan. 5, 2021). 

The Commission previously affirmed 

an initial determination finding that the 

economic prong is satisfied under 

section 337(a)(3)(A) (19 U.S.C. 

1337(a)(3)(A)) with respect to the ’238 

and ’915 patents and provided 

supplemental analysis. Order No. 35 

(Jan. 19, 2021), affirmed in part by 

Comm’n Notice (Feb. 18, 2021). The 

Commission took no position on the 

finding that the economic prong was 

satisfied under section 337(a)(3)(B) (19 

U.S.C. 1337(a)(3)(B)). Id. 

On May 14, 2021, the presiding ALJ 

issued the FID on violation. The FID 

finds a violation of section 337 as to the 

’915 patent and the ’123 patent by virtue 

of Respondents’ infringement of claims 

1–3 and 5 of the ’915 patent and claims 

27–30 of the ’123 patent. The FID finds 

that Complainants did not establish a 

violation with respect to the ’238 patent. 

In particular, the FID finds that 

Respondents failed to show that the 

asserted claims of the ’915 and ’123 

patents are invalid. The ID further finds 

that claim 19 of the ’238 patent is 

invalid as anticipated. The FID finds 

that the domestic industry requirement 

is satisfied for each of the Asserted 

Patents. 

The Recommended Determination on 

Remedy and Bond (‘‘RD’’) recommends 

the issuance of a limited exclusion order 

barring entry of products that infringe 

the asserted claims of the Asserted 

Patents. The RD does not recommend 

issuing cease and desist orders. The RD 

recommends imposing no bond during 

the Presidential review period. Finally, 

the RD concludes that the public 

interest evidence does not weigh against 

entry of a remedy. 

On May 28, 2021, Complainants, 

Respondents, and OUII each filed 

petitions for review of various aspect of 

the FID. Specifically, Complainants 

filed a petition for review of the FID’s 

infringement and validity findings for 

the ’238 patent. Respondents filed a 

petition for review that challenges 

aspects of the FID’s construction of 

‘‘electrical energy source’’ recited in 

claims 1 and 3 of the ’915 patent. 

Respondents also petitioned for review 

of the FID’s findings concerning 

infringement and invalidity with respect 

to the ’915 and ’123 patents, and the 

FID’s domestic industry findings for the 

’123 patent. Respondents contingently 

petitioned for review of the 

constructions of ‘‘pressure channel’’ and 

‘‘air inlet channel’’ recited in claim 19 

of the ’238 patent, as well as the FID’s 

infringement findings based on the 

alleged incorrect claim constructions. 

OUII filed a petition for review of the 

constructions of ‘‘pressure channel’’ and 

‘‘air inlet channel’’ recited in claim 19 

of the ’238 patent, and the FID’s 

infringement findings based on the 

limitation ‘‘spatially separated’’ recited 

in claim 19. 

On June 8, 2021, the parties filed their 

respective responses to the various 

petitions for review. That same day, 

Respondents filed a motion to strike-inpart Complainants’ petition for review 

to the extent the petition sought review 

of the RD. On June 21, 2021, 

Complainants filed a response opposing 

the motion. OUII did not file a response. 

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, as follows. 

As to the ’915 patent, the Commission 

has determined to review the ALJ’s 

construction of the limitation ‘‘electrical 

energy source’’ recited in asserted 

claims 1 and 3 and the FID’s 

infringement, technical prong, and 

invalidity findings to the extent they 

may be affected by a modified claim 

construction. 

As to the ’123 patent, the Commission 

has determined to review the FID’s 

obviousness and domestic industry 

findings, including whether 

Complainants have satisfied the 

economic prong of the domestic 

industry requirement. 

As to the ’238 patent, the Commission 

has determined to review the FID’s 

infringement finding. 

The Commission has determined not 

to review the remainder of the FID. The 

Commission denies Respondents’ 

motion to strike-in-part Complainants’ 

petition for review. 


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41510 Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Notices 

The parties are asked to provide 

additional briefing on the following 

issues: 

With regard to the ’915 patent, please 

address whether a construction of the term 

‘‘electrical energy source’’ to mean 

‘‘receptacle that provides for transmission of 

electrical current from the power source to 

the heating member, where the receptacle is 

not limited to a structure that requires wiring 

or insertion,’’ is supported by the intrinsic 

and extrinsic evidence. Also, please address 

whether this modified claim construction 

affects any other findings in the FID 

regarding the ’915 patent such as 

infringement, domestic industry technical 

prong, or invalidity. 

The parties are requested to brief only 

the discrete issues identified above, 

with reference to the applicable law and 

evidentiary record. The parties are not 

to brief any other issues on review, 

which have already been adequately 

presented in the parties’ previous 

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 

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 Complainants 

seek a cease and desist order against any 

respondent, 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 Complainants also rely 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. 

(3) Please discuss any other basis 

upon which the Commission could 

enter a cease and desist order. 

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. The 

submissions should include a 

discussion of the RD’s findings on the 

public interest. 

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, 

Complainants are also requested to 

identify the remedy sought and 

Complainants and OUII are requested to 

submit proposed remedial orders for the 

Commission’s consideration. 

Complainants are further requested to 

state the dates that the Asserted Patents 

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 August 10, 

2021. Reply submissions must be filed 

no later than the close of business on 

August 17, 2021. 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–1199) 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 Rules 201.6 and 

210.5(e)(2) (19 CFR 201.6 & 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 


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Federal Register / Vol. 86, No. 145 / Monday, August 2, 2021 / Notices 41511 

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 July 27, 

2021. 

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: July 27, 2021. 

Lisa Barton, 

Secretary to the Commission. 

[FR Doc. 2021–16374 Filed 7–30–21; 8:45 am] 

BILLING CODE 7020–02–P 

INTERNATIONAL TRADE 

COMMISSION 

[Investigation Nos. 701–TA–539 and 731– 

TA–1280–1282 (Review)] 

Heavy Walled Rectangular Welded 

Carbon Steel Pipes and Tubes from 

Korea, Mexico, and Turkey; Institution 

of Five-Year Reviews 

AGENCY: United States International 

Trade Commission. 

ACTION: Notice. 

SUMMARY: The Commission hereby gives 

notice that it has instituted reviews 

pursuant to the Tariff Act of 1930 (‘‘the 

Act’’), as amended, to determine 

whether revocation of the 

countervailing duty order on imports of 

heavy walled rectangular welded carbon 

steel pipes and tubes from Turkey and 

of the antidumping duty orders on 

imports of heavy walled rectangular 

welded carbon steel pipes and tubes 

from Korea, Mexico, and Turkey would 

be likely to lead to continuation or 

recurrence of material injury. Pursuant 

to the Act, interested parties are 

requested to respond to this notice by 

submitting the information specified 

below to the Commission. 

DATES: Instituted August 2, 2021. To be 

assured of consideration, the deadline 

for responses is September 1, 2021. 

Comments on the adequacy of responses 

may be filed with the Commission by 

October 15, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Lawrence Jones (202–205–3358), Office 

of Investigations, U.S. International 

Trade Commission, 500 E Street SW, 

Washington, DC 20436. Hearingimpaired persons can obtain 

information on this matter by contacting 

the Commission’s TDD terminal on 202– 

205–1810. Persons with mobility 

impairments who will need special 

assistance in gaining access to the 

Commission should contact the Office 

of the Secretary at 202–205–2000. 

General information concerning the 

Commission may also be obtained by 

accessing its internet server (https://

www.usitc.gov). The public record for 

this proceeding may be viewed on the 

Commission’s electronic docket (EDIS) 

at https://edis.usitc.gov. 

SUPPLEMENTARY INFORMATION: 

Background.—On September 13, 

2016, the Department of Commerce 

(‘‘Commerce’’) issued antidumping duty 

orders on imports of heavy walled 

rectangular welded carbon steel pipes 

and tubes from Korea, Mexico, and 

Turkey (81 FR 62865), and a 

countervailing duty order on imports 

from Turkey (81 FR 62874). The 

Commission is conducting reviews 

pursuant to section 751(c) of the Act, as 

amended (19 U.S.C. 1675(c)), to 

determine whether revocation of the 

orders would be likely to lead to 

continuation or recurrence of material 

injury to the domestic industry within 

a reasonably foreseeable time. 

Provisions concerning the conduct of 

this proceeding may be found in the 

Commission’s Rules of Practice and 

Procedure at 19 CFR part 201, subparts 

A and B, and 19 CFR part 207, subparts 

A and F. The Commission will assess 

the adequacy of interested party 

responses to this notice of institution to 

determine whether to conduct full 

reviews or expedited reviews. The 

Commission’s determination in any 

expedited review will be based on the 

facts available, which may include 

information provided in response to this 

notice. 

Definitions.—The following 

definitions apply to this review: 

(1) Subject Merchandise is the class or 

kind of merchandise that is within the 

scope of the five-year review, as defined 

by the Department of Commerce. 

(2) The Subject Countries in these 

reviews are Korea, Mexico, and Turkey. 

(3) The Domestic Like Product is the 

domestically produced product or 

products which are like, or in the 

absence of like, most similar in 

characteristics and uses with, the 

Subject Merchandise. In its original 

determinations, the Commission 

defined the Domestic Like Product as 

consisting of heavy walled rectangular 

welded carbon steel pipes and tubes 

that were coextensive with Commerce’s 

scope. 

(4) The Domestic Industry is the U.S. 

producers as a whole of the Domestic 

Like Product, or those producers whose 

collective output of the Domestic Like 

Product constitutes a major proportion 

of the total domestic production of the 

product. In its original determinations, 

the Commission defined the Domestic 

Industry as all U.S. producers of heavy 

walled rectangular welded carbon steel 

pipes and tubes. 

(5) The Order Date is the date that the 

antidumping and countervailing duty 

orders under review became effective. In 

these reviews, the Order Date is 

September 13, 2016. 

(6) An Importer is any person or firm 

engaged, either directly or through a 

parent company or subsidiary, in 

importing the Subject Merchandise into 

the United States from a foreign 

manufacturer or through its selling 

agent. 

Participation in the proceeding and 

public service list.—Persons, including 

industrial users of the Subject 

Merchandise and, if the merchandise is 

sold at the retail level, representative 

consumer organizations, wishing to 

participate in the proceeding as parties 

must file an entry of appearance with 

the Secretary to the Commission, as 

provided in § 201.11(b)(4) of the 

Commission’s rules, no later than 21 

days after publication of this notice in 

the Federal Register. The Secretary will 

maintain a public service list containing 

the names and addresses of all persons, 

or their representatives, who are parties 

to the proceeding. 

Former Commission employees who 

are seeking to appear in Commission 

five-year reviews are advised that they 

may appear in a review even if they 

participated personally and 

substantially in the corresponding 

underlying original investigation or an 

earlier review of the same underlying 

investigation. The Commission’s 

designated agency ethics official has 

advised that a five-year review is not the 

same particular matter as the underlying 

original investigation, and a five-year 

review is not the same particular matter 

as an earlier review of the same 

underlying investigation for purposes of 

18 U.S.C. 207, the post-employment 

statute for Federal employees, and 

Commission rule 201.15(b) (19 CFR 

201.15(b)), 79 FR 3246 (Jan. 17, 2014), 


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