[Federal Register Volume 87, Number 95 (Tuesday, May 17, 2022)]
[Notices]
[Pages 29879-29881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10523]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1244]


Certain Batteries and Products Containing Same; Commission 
Decision To Review in Part an Initial Determination Granting in Part 
Complainants' Motion for Summary Determination of a Violation of 
Section 337; Request for Written Submissions

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 to review in part an initial determination 
(``ID'') (Order No. 15) of the presiding Administrative Law Judge 
(``ALJ'') granting-in-part the complainants' motion for summary 
determination of a violation of section 337. The Commission also 
requests written submissions from the parties on the issue under review 
and from the parties, interested government agencies, and interested 
persons on the issues of remedy, bonding, and the public interest, 
under the schedule set forth below.

FOR FURTHER INFORMATION CONTACT: Michael Liberman, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 205-2392. 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#1451505d47275c7178645461677d60773a737b62"><span class="__cf_email__" data-cfemail="71343538224239141d013104021805125f161e07">[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 
on (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on February 5, 2021, under section 337 of the Tariff Act of 1930, as 
amended, 19 U.S.C. 1337 (``section 337''), based on a complaint filed 
by complainants One World Technologies, Inc. (``One World'') and 
Techtronic Power Tools Technology Ltd. (``TTT'') (collectively, 
``Complainants''). 86 FR 8379-80 (Feb. 5, 2021). The complaint, as 
supplemented, alleges a violation of section 337 based upon the 
importation into the United States, the sale for importation, or the 
sale within the United States after importation of certain batteries 
and products containing same by reason of infringement of the sole 
claims of U.S. Patent Nos. D579,868 (``the '868 patent''); D580,353 
(``the '353 patent''); and D593,944 (``the '944 patent''). Id. at 8379. 
The complaint further alleges that a domestic industry exists. Id. The 
notice of investigation (``NOI'') names thirteen (13) respondents: 
Darui Development Limited (``Darui Development''); Dongguan Xinjitong 
Electronic Technology Co., Ltd. (``Dongguan Electronic''); Shenzhen 
Laipaili Electronics Co., Ltd. (``Shenzhen Laipaili''); Shenzhen 
MingYang Creation Electronic Co., Ltd. (``Shenzhen MingYang''); 
Shenzhen Rich Hao Yuan Energy Technology Co., Ltd. (``Shenzhen Rich 
Hao''); Shenzhen Runsensheng Trading Co., Ltd. (``Shenzhen 
Runsensheng''); Shenzhen Saen Trading Co., Ltd. (``Shenzhen Saen''); 
Shenzhen Shengruixiang E-Commerce Co., Ltd. (``Shenzhen E-Commerce''); 
Shenzhen Uni-Sun Electronics Co., Ltd. (``Shenzhen Uni-Sun''); and 
Shenzhen Vmartego Electronic Commerce Co., Ltd. (``Shenzhen Vmartego'') 
(collectively, the ``Defaulted Respondents''); Shenzhen Liancheng Weiye 
Industrial Co., Ltd.; Shenzhen Ollop Technology Co. Ltd.; and Shenzhen 
Tuo Yu Technology Co., Ltd. Id. The Office of Unfair Import 
Investigations (``OUII'') is participating in this investigation. Id.
    On May 17, 2021, Commission terminated the investigation based upon 
the withdrawal of the complaint with respect to respondents Shenzhen 
Liancheng Weiye Industrial Co., Ltd., Shenzhen Ollop Technology Co. 
Ltd., and Shenzhen Tuo Yu Technology Co., Ltd., after Complainants were 
unable to serve these respondents with copies of the Complaint and NOI. 
Order No. 7 (Apr. 21, 2021), unreviewed by Notice (May 17, 2021).
    On April 20, 2021, Complainants filed a motion for an order to show 
cause why the remaining ten (10) named respondents (i.e., the Defaulted 
Respondents) should not be found in default after failing to respond to 
the Complaint and NOI, which had been duly served upon them. On May 4, 
2021, the motion was granted and an order to show cause was issued. 
Order No. 8 (May 4, 2021). On June 3, 2021, after they failed to 
respond to the order to show cause, ALJ issued an ID finding all ten 
Defaulted Respondents to be in default. Order No. 9 (June 3, 2021), 
unreviewed by Notice (June 23, 2021).
    On June 21, 2021, Complainants moved for a summary determination of 
violation of Section 337 by the Defaulted Respondents and for a 
recommended determination recommending entry of a general exclusion 
order and a bond at the rate of 100 percent during the Presidential 
review period.
    On July 16, 2021, OUII filed a response to Complainants' motion 
supporting a finding of summary determination against only four (4) of 
the Defaulted Respondents: Darui Development, Dongguan Electronic, 
Shenzhen Rich Hao, and Shenzhen Saen. Specifically, OUII argued 
Complainants did not sufficiently connect the importation, sale, or 
sale after importation of certain of the Accused Products to the 
Defaulted Respondents. Otherwise, OUII stated it generally supports a 
finding that Complainants have satisfied the economic prong of the 
domestic industry requirement under section 337(a)(3)(A) and (B) (19 
U.S.C.

[[Page 29880]]

1337(a)(3)(A), (B)) and also supports Complainants' remedy requests.
    On March 25, 2022, the presiding ALJ issued the subject ID (Order 
No. 15) granting in part and denying in part Complainants' motion for 
summary determination. The ID finds that Complainants have shown by 
reliable, probative, and substantial evidence that a violation of 
section 337 has occurred with respect to the Asserted Patents as to the 
following four Defaulted Respondents: Darui Development, Dongguan 
Electronic, Shenzhen Rich Hao, and Shenzhen Saen. The ID finds that no 
violation has been established as to any other respondent. The ALJ's 
recommended determination on remedy and bonding (``RD'') recommends 
issuance of a general exclusion order with respect to the asserted 
patents. The RD does not recommend issuance of any cease and desist 
order.
    On April 6, 2022, the IA petitioned for review of certain aspects 
of the subject ID. No other petitions or responses to petitions were 
filed.
    Having examined the record in this investigation, including the 
final ID and the petition for review, the Commission has determined to 
review the ID's findings regarding the economic prong of the domestic 
industry requirement. In addition, the Commission has determined to 
review in part the ID with the limited purpose of modifying the ID on 
review by making certain corrections in the ID.
    Specifically, the Commission has determined to modify the subject 
ID as follows: (1) On page 8 of the ID, to strike the specific 
identification of the ``remaining six (6) Defaulted Respondents'' from 
summary finding number thirteen (13); (2) on page 34 of the ID, to 
strike the sentence that reads ``The model numbers of the Lasica 
batteries that Defaulted Respondent Shenzhen MingYang offered for sale 
on the Amazon website are among the DI Products identified in this 
investigation.''; (3) on page 34 of the ID, to strike the sentence that 
reads ``A Lasica battery that was purchased from the Defaulted 
Respondent Shenzhen MingYang Amazon website was received in the United 
States on July 23, 2018 and is clearly marked as `Made in China.' 
(Memo. at 17; SMF No. 69.).''; (4) on page 37 of the ID, to strike the 
sentence that reads ``It is undisputed that Defaulted Respondent 
Shenzhen E-Commerce has sold for importation, imported, and/or sold in 
the United States after importation the accused FUZADEL Battery. (Memo. 
at 15-16; SMF No. 57; Staff Resp. at 33.).''; (5) on page 38 of the ID, 
to strike the sentence that reads ``The RYOBI\TM\ battery pack model 
numbers that are offered for sale as a FUZADEL battery pack that 
Defaulted Respondent Shenzhen E-Commerce offers for sale on the Amazon 
website are among the DI Products identified in this investigation.''; 
(6) on page 39 of the ID, to strike the sentence that reads ``The 
RYOBI\TM\ model numbers identified on the jolege battery pack that 
Defaulted Respondent Shenzhen Uni-Sun offers for sale on the Amazon 
website are among the DI Products identified in this investigation.''; 
(7) on page 29 of the ID, to modify the last line to read ``Dongguan 
Electronic'' instead of ``Darui Development;'' (8) on page 30 of the 
ID, to modify the first line on page 30 of the ID by striking the word 
``Dongguan;'' (9) to modify the last line to read ``Shenzhen Rich Hao'' 
instead of ``Darui Development;'' (10) on page 31 of the ID, to modify 
the first line to read ``Shenzhen Saen'' instead of ``Dongguan Shenzhen 
Rich Hao;'' (11) on page 31 of the ID, to modify the last line to read 
``Shenzhen Saen'' instead of ``Darui Development;'' (12) on page 36 of 
the ID, to modify the fifth line from the top by striking the symbols 
``4.''; (13) on page 37 of the ID, to modify the sixth line from the 
bottom to read ``Respondent Shenzhen Runsensheng, either alone or in 
association with Defaulted Respondent Vmartego, is the owner or seller 
of the Enegitech Accused Product'' instead of ``Respondent MingYang is 
the owner or seller of the Lasica Accused Product;'' (14) on page 39 of 
the ID, to modify the fourth line from the bottom to read ``Respondent 
Shenzhen Uni-Sun'' instead of ``Respondent Shenzhen E-Commerce''; (15) 
on page 47 of the ID, to strike the text ``(Memo at 26 (citing SMF No. 
102 and Fletcher Decl. at upper end chamfered and the extrusion of this 
surface to the Foot Platform. . . .' '' on lines eight and nine from 
the bottom; (16) on page 63 of the ID, to modify the citation on lines 
9 and 10 to read ``(Fletcher Decl. at ]] 105-115 ('868 patent); ]] 170-
181 ('353 patent); ]] 241-252 ('944 patent))'' instead of ``(Fletcher 
Decl. at ]] 105- 114 ('868 patent); ]] 133-142 ('353 patent); ]] 161-
170).)''); and (17) on page 65 of the ID, to insert ``takes place'' 
after ``engineering'' to read ``engineering takes place in the United 
States.''
    In connection with its review, the Commission requests responses to 
the following question. The parties are requested to brief their 
positions with reference to the applicable law and the existing 
evidentiary record.
    1. Please discuss what evidence of record supports a finding that 
complainants' investments under Section 337(a)(3)(A) and (B), 19 U.S.C. 
1337(a)(3)(A), (B), are quantitatively and qualitatively significant.
    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 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).
    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 a 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 
or disapprove the Commission's action. 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

[[Page 29881]]

should be imposed if a remedy is ordered.
    Written Submissions: The parties to the investigation are requested 
to file written submissions on the issue identified in this notice. 
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 also requested 
to submit proposed remedial orders for the Commission's consideration. 
Complainants are also requested to state the dates on which the 
asserted patents expire, the HTSUS subheadings under which the accused 
products are imported, and to supply the names of 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 May 25, 2022. Reply submissions must be filed no 
later than the close of business on June 1, 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-1244'') in a prominent place on 
the cover page and/or the first page. (See Handbook for Electronic 
Filing Procedures, https://www.usitc.gov/secretary/documents/handbookonfilingprocedures.pdf). Persons with questions regarding 
filing should contact the Secretary at (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. Any non-
party wishing to submit comments containing confidential information 
must serve those comments on the parties to the investigation pursuant 
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed with the 
Commission and served on any parties to the investigation within two 
business days of 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 May 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: May 11, 2022.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2022-10523 Filed 5-16-22; 8:45 am]
BILLING CODE 7020-02-P


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