82 FR 51291 - Certain Hand Dryers and Housing for Hand Dryers; Commission's Determination To Affirm the Domestic Industry Finding Under Modified Reasoning; Issuance of a General Exclusion Order; Issuance of Three Cease and Desist Orders; Termination of the Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 212 (November 3, 2017)

Notice is hereby given that the U.S. International Trade Commission has determined to affirm under modified reasoning the ALJ's finding with respect to the existence of a domestic industry. The Commission has also determined to issue a general exclusion order directed against infringing hand dryers and housings for hand dryers, and has issued three cease and desist orders against defaulted respondents US Air Hand Dryer, Penson & Co., and TC Bunny Co., Ltd. The investigation is hereby terminated.

[Federal Register Volume 82, Number 212 (Friday, November 3, 2017)]
[Notices]
[Pages 51291-51292]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-23938]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1015]


Certain Hand Dryers and Housing for Hand Dryers; Commission's 
Determination To Affirm the Domestic Industry Finding Under Modified 
Reasoning; Issuance of a General Exclusion Order; Issuance of Three 
Cease and Desist Orders; Termination of the Investigation

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 affirm under modified reasoning the ALJ's 
finding with respect to the existence of a domestic industry. The 
Commission has also determined to issue a general exclusion order 
directed against infringing hand dryers and housings for hand dryers, 
and has issued three cease and desist orders against defaulted 
respondents US Air Hand Dryer, Penson & Co., and TC Bunny Co., Ltd. The 
investigation is hereby terminated.

FOR FURTHER INFORMATION CONTACT: Robert Needham, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 708-5468. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW., Washington, DC 20436, 
telephone (202) 205-2000. General information concerning the Commission 
may also be obtained by accessing its Internet server at https://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://edis.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 August 1, 2016, based on a complaint filed by Complainant Excel 
Dryer, Inc. of East Longmeadow, Massachusetts

[[Page 51292]]

(``Excel''), alleging a violation of section 337 of the Tariff Act of 
1930, as amended, 19 U.S.C. 1337 (``section 337''), based upon the 
importation into the United States, or in the sale of certain hand 
dryers and housings for hand dryers by reason of trade dress 
infringement, the threat or effect of which is to destroy or 
substantially injure an industry in the United States. See 81 FR 50549-
50 (Aug. 1, 2016). The notice of investigation identified twelve 
respondents: ACL Group (Intl.) Ltd. of Skelbrooke, United Kingdom 
(``ACL''); Alpine Industries Inc. of Irvington, New Jersey 
(``Alpine''); FactoryDirectSale of Ontario, California; Fujian Oryth 
Industrial Co., Ltd. (a/k/a Oryth) of Fujian, China (``Oryth''); Jinhua 
Kingwe Electrical Co. Ltd., (a/k/a Kingwe) of Jinhua City, China 
(``Kingwe''); Penson & Co. of Shanghai, China (``Penson''); Taizhou 
Dihour Electrical Appliances Co., Ltd., a/k/a Dihour of Wenling City, 
China (``Dihour''); TC Bunny Co., Ltd. of Shanghai, China (``TC 
Bunny''); Toolsempire of Ontario, California; US Air Hand Dryer of 
Sacramento, California (``US Air''); Sovereign Industrial (Jiaxing) Co. 
Ltd. d/b/a Vinovo of Jiaxing, China (``Vinovo''); and Zhejiang Aike 
Appliance Co., Ltd. of Zhejiang, China (``Aike''). See id. The Office 
of Unfair Import Investigations (``OUII'') is also a party to this 
investigation. See id.
    The Commission terminated six respondents from the investigation 
based on consent order stipulations and the entry of consent orders. 
These terminated respondents are: Alpine, Order No. 11 (Sept. 8, 2016), 
not reviewed, Notice (Oct. 11, 2016); Kingwe, Order No. 12 (Sept. 8, 
2016), not reviewed, Notice (Oct. 11, 2016); ACL, Order No. 15 (Sept. 
28, 2016), not reviewed, Notice (Oct. 27, 2016); Aike, Order No. 16 
(Oct. 4, 2016), not reviewed, Notice (Nov. 3, 2016); Toolsempire, Order 
No. 18 (Oct. 11, 2016), not reviewed, Notice (Nov. 14, 2016); and 
FactoryDirectSale (Order No. 19 (Oct. 11, 2016), not reviewed, Notice 
(Nov. 14, 2016).
    The Commission found the six remaining respondents in default based 
on their failure to respond to the complaint and notice of 
investigation. These respondents (``the Defaulted Respondents'') are: 
Penson, Dihour, US Air, Oryth, TC Bunny, and Vinovo. Order No. 21 (Oct. 
31, 2016), not reviewed, Notice (Nov. 28, 2016); Order No. 24 (Feb. 2, 
2017), not reviewed, Notice (Feb. 22, 2017).
    On March 24, 2017, Excel filed a motion for summary determination 
on domestic industry and violation of section 337 by the Defaulting 
Respondents. Excel also requested a general exclusion order, cease and 
desist orders, and a bond rate of 100 percent of entered value during 
the period of Presidential review. On April 5, 2017, the OUII filed a 
response in support of Excel's motion and requested remedy. On June 2, 
2017, the ALJ issued the subject ID/RD (Order No. 27), granting the 
motion and recommending that the Commission issue a general exclusion 
order, issue cease and desist orders, and set a bond at 100 percent of 
entered value during the period of Presidential review. No petitions 
for review of the subject ID were filed.
    On July 14, 2017, the Commission determined ``to review the ID's 
analysis and finding with respect to the existence of a domestic 
industry.'' Notice (July 14, 2017). The Commission also sought written 
submissions on two issues from the parties, and written submissions on 
remedy, the public interest, and bonding from the parties and the 
public. The Commission received a main submission from OUII on July 27, 
2017, a main submission from Excel on July 28, 2017, and a reply 
submission from OUII on August 2, 2017. No other submissions were 
received.
    Having examined the record of this investigation, the Commission 
has determined to affirm under modified reasoning the ALJ's finding 
with respect to the existence of a domestic industry. Here, although 
this investigation concerns an alleged violation of section 
337(a)(1)(A)(i) based on trade dress infringement, the ALJ analyzed the 
existence of a domestic industry under section 337(a)(3), which applies 
to section 337(a)(1)(B)-(E). The Commission finds that the evidence 
credited by the ALJ is sufficient to satisfy the requirement of ``an 
industry in the United States'' under section 337(a)(1)(A)(i).
    The Commission has determined that the appropriate form of relief 
in this investigation is: (a) A general exclusion order; and (b) cease 
and desist orders prohibiting US Air, Penson, and TC Bunny from 
importing, selling, offering for sale, marketing, advertising, 
distributing, offering for sale, transferring (except for exportation), 
or soliciting U.S. agents or distributors of imported hand dryers and 
housings for hand dryers that infringe the Excel Trade Dress. The 
Commission has further determined that the public interest factors 
enumerated in section 337(d)(2) (19 U.S.C. 1337(d)(2)) and in section 
337(g)(1) (19 U.S.C. 1337(g)(1)) do not preclude the issuance of the 
general exclusion order and cease and desist orders, respectively. 
Finally, the Commission has determined that the bond for importation 
during the period of Presidential review shall be in the amount of 100 
percent of the entered value of the imported subject articles of the 
respondents. The investigation is terminated.
    Chairman Schmidtlein supports issuing all of the cease and desist 
orders requested by Excel, including against Vinovo. She has filed a 
dissenting opinion explaining her views.
    The Commission's orders and opinion were delivered to the President 
and the United States Trade Representative on the day of their 
issuance.
    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: October 30, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-23938 Filed 11-2-17; 8:45 am]
BILLING CODE 7020-02-P