83_FR_52179 83 FR 51980 - Certain Non-Volatile Memory Devices and Products Containing Same Notice of the Commission's Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation

83 FR 51980 - Certain Non-Volatile Memory Devices and Products Containing Same Notice of the Commission's Final Determination Finding a Violation of Section 337; Issuance of a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 83, Issue 199 (October 15, 2018)

Page Range51980-51982
FR Document2018-22325

Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 in this investigation and has issued a limited exclusion order prohibiting importation of infringing non-volatile memory devices and products containing the same and issued cease and desist orders directed to the domestic respondents Toshiba America, Inc. and its subsidiaries, Toshiba America Electronic Components, Inc. and Toshiba America Information Systems, Inc. The investigation is terminated.

Federal Register, Volume 83 Issue 199 (Monday, October 15, 2018)
[Federal Register Volume 83, Number 199 (Monday, October 15, 2018)]
[Notices]
[Pages 51980-51982]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-22325]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1046]


Certain Non-Volatile Memory Devices and Products Containing Same 
Notice of the Commission's Final Determination Finding a Violation of 
Section 337; Issuance of a Limited Exclusion Order and Cease and Desist 
Orders; Termination of the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has found a violation of section 337 in this investigation 
and has issued a limited exclusion order prohibiting importation of 
infringing non-volatile memory devices and products containing the same 
and issued cease and desist orders directed to the domestic respondents 
Toshiba America, Inc. and its subsidiaries, Toshiba America Electronic 
Components, Inc. and Toshiba America Information Systems, Inc. The 
investigation is terminated.

FOR FURTHER INFORMATION CONTACT: Panyin A. Hughes, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone 202-205-3042. 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 (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 Inv. No. 337-TA-
1046 on April 12, 2017, based on a complaint filed by Macronix 
International Co., Ltd. of Hsin-chu, Taiwan and Macronix America, Inc. 
of Milpitas, California (collectively, ``Macronix''). 82 FR 17687-88 
(Apr. 12, 2017). The complaint alleges violations of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), in the

[[Page 51981]]

importation into the United States, the sale for importation, and the 
sale within the United States after importation of certain non-volatile 
memory devices and products containing the same that infringe one or 
more of claims 1-8 of U.S. Patent No. 6,552,360 (``the '360 patent''); 
claims 1-12 and 16 of U.S. Patent No. 6,788,602 (``the '602 patent''); 
and claims 1-7, 11-16, and 18 of U.S. Patent No. 8,035,417 (``the '417 
patent''). The notice of investigation named the following respondents: 
Toshiba Corporation of Tokyo, Japan; Toshiba America, Inc. of New York, 
New York; Toshiba America Electronic Components, Inc. of Irvine, 
California; Toshiba America Information Systems, Inc. of Irvine, 
California; and Toshiba Information Equipment (Philippines), Inc. of 
Binan, Philippines (collectively, ``Toshiba''). The Office of Unfair 
Import Investigations is a party to the investigation.
    On June 16, 2017, the Commission determined not to review the ALJ's 
order (Order No. 11) granting an unopposed motion to amend the Notice 
of investigation to add Toshiba Memory Corporation of Tokyo, Japan as a 
respondent. See Order No. 11, Comm'n Notice of Non-Review (June 16, 
2017).
    On October 17, 2017, the Commission determined not to review the 
ALJ's order (Order No. 20) granting an unopposed motion to terminate 
the investigation as to claims 11, 12, and 16 of the '602 patent. See 
Order No. 20, Comm'n Notice of Non-Review (Oct. 17, 2017).
    On October 4, 2017, the ALJ held a Markman hearing to construe 
certain disputed claim terms. On December 5, 2017, the ALJ issued Order 
No. 23 (Markman Order), setting forth her construction of the disputed 
claim terms.
    On January 18, 2018, the Commission determined not to review the 
ALJ's order (Order No. 24) granting an unopposed motion to terminate 
the investigation as to claims 1-7 and 18 of the '417 patent. Order No. 
24; Comm'n Notice of Non-Review (Jan. 18, 2018).
    The ALJ held an evidentiary hearing from February 8, 2018, through 
February 14, 2018, and thereafter received post-hearing briefs.
    On April 27, 2018, the ALJ issued her final ID, finding no 
violation of section 337 by Toshiba in connection with the remaining 
claims, i.e., claims 1-8 of the '360 patent; claims 1-10 of the '602 
patent; and claims 11-16 of the '417 patent. Specifically, the ALJ 
found that the Commission has subject matter jurisdiction, in rem 
jurisdiction over the accused products, and in personam jurisdiction 
over Toshiba. ID at 15-17. The ALJ also found that Macronix satisfied 
the importation requirement of section 337 (19 U.S.C. 1337(a)(1)(B)). 
Id. The ALJ, however, found that the accused products do not infringe 
the asserted claims of the '360 patent and '417 patent. See ID at 19-
65, 118-130. The ALJ also found that Toshiba failed to establish that 
the asserted claims of the '417 patent are invalid for obviousness. ID 
at 132-141. Toshiba did not challenge the validity of the '360 patent. 
ID at 70. With respect to the '602 patent, the ALJ found that certain 
accused products infringe asserted claims 1-10, but that claims 1-5 and 
7-10 are invalid for obviousness. ID at 71-88, 91-117. Finally, the ALJ 
found that Macronix failed to establish the existence of a domestic 
industry that practices the asserted patents under 19 U.S.C. 1337(a)(2) 
and also failed to show a domestic industry in the process of being 
established. See ID at 257-261, 288-294.
    On May 10, 2018, the ALJ issued her recommended determination on 
remedy and bonding. Recommended Determination on Remedy and Bonding 
(``RD''). The ALJ recommends that in the event the Commission finds a 
violation of section 337, the Commission should issue a limited 
exclusion order prohibiting the importation of Toshiba's accused 
products that infringe the asserted claims of the asserted patents. RD 
at 1-5. The ALJ also recommends issuance of cease and desist orders 
against the domestic Toshiba respondents based on the presence of 
commercially significant inventory in the United States. RD at 5. With 
respect to the amount of bond that should be posted during the period 
of Presidential review, the ALJ recommends that the Commission set a 
bond in the amount of 100 percent of entered value for Toshiba flash 
memory devices and solid state drives, and a bond in the amount of six 
percent of entered value for Toshiba PCs imported during the period of 
Presidential review. RD at 6-9.
    On May 14, 2018, Macronix filed a petition for review challenging 
the ID's finding of no violation of section 337. The IA also filed a 
petition for review that day, challenging the ID's finding that 
Macronix failed to establish a domestic industry in the process of 
being established and certain findings as to the '602 patent. Also on 
May 14, 2018, Toshiba filed a contingent petition for review of the ID 
``in the event that the Commission decides to review the ID.'' On May 
22, 2018, Macronix and Toshiba filed their respective responses to the 
petitions for review. On May 23, 2018, the IA filed a response to the 
private parties' petitions for review. The Chairman granted the IA's 
motion for leave to file the response one day late.
    On June 28, 2018, the Commission determined to review the final ID 
in part and requested the parties to brief certain issues. See 83 FR 
31416-18 (July 5, 2018). Specifically, the Commission determined to 
review the following: (1) The finding that Macronix failed to satisfy 
the domestic industry requirement; and (2) the findings of infringement 
and invalidity as to the '602 patent. On July 12, 2018, the parties 
filed submissions to the Commission's questions and also briefed the 
issues of remedy, the public interest and bonding. On July 19, 2018, 
the parties filed responses to the initial submissions.
    Having examined the record of this investigation, including the 
final ID, and the parties' submissions, the Commission has determined 
to (1) reverse the ALJ's finding that the accused products do not 
directly infringe the asserted claims of the '602 patent; (2) affirm 
the ALJ's indirect infringement and invalidity findings as to the '602 
patent; and (3) reverse the ALJ's finding that Macronix failed to 
establish a domestic industry in the process of being established. The 
Commission adopts the ID's findings to the extent they are not 
inconsistent with the Commission opinion issued herewith. The 
Commission action results in a violation of section 337 as to claim 6 
of the '602 patent.
    Having found a violation of section 337 in this investigation, the 
Commission has determined that the appropriate form of relief is: (1) A 
limited exclusion order prohibiting the unlicensed entry of non-
volatile memory devices and products containing the same that infringe 
claim 6 of the '602 patent that are manufactured by, or on behalf of, 
or are imported by or on behalf of Respondents or any of their 
affiliated companies, parents, subsidiaries, agents, or other related 
business entities, or their successors or assigns, are excluded from 
entry for consumption into the United States, entry for consumption 
from a foreign-trade zone, or withdrawal from a warehouse for 
consumption, for the remaining term of the '602 patent except under 
license of the patent owner or as provided by law; and (2) cease and 
desist orders prohibiting domestic respondents Toshiba America, Inc. 
and its subsidiaries, Toshiba America Electronic Components, Inc. and 
Toshiba America Information Systems, Inc. from conducting any of the 
following activities in the United States: Importing, selling, 
marketing, advertising, distributing, transferring

[[Page 51982]]

(except for exportation), and soliciting U.S. agents or distributors 
for, non-volatile memory device and products containing same covered by 
claim 6 of the '602 patent.
    The Commission has also determined that the public interest factors 
enumerated in section 337(d) and (f) (19 U.S.C. 1337(d) and (f)) do not 
preclude issuance of the limited exclusion order or cease and desist 
orders. Finally, the Commission has determined that a bond in the 
amount of 100 percent of entered value for Toshiba flash memory 
devices, solid-state drives, USB flash drives, and microcontroller 
units; and a bond in the amount of six percent of entered value for 
Toshiba personal computers, multi-function printers, and air 
conditioners is required to permit temporary importation during the 
period of Presidential review (19 U.S.C. 1337(j)) of products that are 
subject to the remedial orders. The Commission's orders and opinion 
were delivered to the President and to 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 9, 2018
Katherine Hiner,
Supervisory Attorney.
[FR Doc. 2018-22325 Filed 10-12-18; 8:45 am]
 BILLING CODE 7020-02-P



                                               51980                        Federal Register / Vol. 83, No. 199 / Monday, October 15, 2018 / Notices

                                               needed to assist the regulatory authority               information in your comment, you                      INTERNATIONAL TRADE
                                               to determine the eligibility of an                      should be aware that your entire                      COMMISSION
                                               applicant to conduct surface coal                       comment—including your personal
                                                                                                                                                             [Investigation No. 337–TA–1046]
                                               mining operations on Federal lands.                     identifying information—may be made
                                               DATES: Interested persons are invited to                publicly available at any time. While                 Certain Non-Volatile Memory Devices
                                               submit comments on or before                            you can ask us in your comment to                     and Products Containing Same Notice
                                               November 14, 2018.                                      withhold your personal identifying                    of the Commission’s Final
                                               ADDRESSES: Send written comments on                     information from public review, we                    Determination Finding a Violation of
                                               this information collection request (ICR)               cannot guarantee that we will be able to              Section 337; Issuance of a Limited
                                               to the Office of Management and                         do so.                                                Exclusion Order and Cease and Desist
                                               Budget’s Desk Officer for the                              Title of Collection: 30 CFR part 740—              Orders; Termination of the
                                               Department of the Interior by email at                  General Requirements for Surface Coal                 Investigation
                                               OIRA_Submission@omb.eop.gov; or via                     Mining and Reclamation Operations on
                                               facsimile to (202) 395–5806. Please                     Federal Lands.                                        AGENCY: U.S. International Trade
                                               provide a copy of your comments to                                                                            Commission.
                                                                                                          OMB Control Number: 1029–0027.
                                               John Trelease, Office of Surface Mining                                                                       ACTION: Notice.
                                                                                                          Abstract: Section 523 of the Surface
                                               Reclamation and Enforcement, 1849 C
                                                                                                       Mining Control and Reclamation Act of                 SUMMARY:   Notice is hereby given that
                                               Street NW, Mail Stop 4559, Washington,
                                                                                                       1977 requires that a Federal lands                    the U.S. International Trade
                                               DC 20240; or by email to jtrelease@
                                                                                                       program be established to govern                      Commission has found a violation of
                                               osmre.gov. Please reference OMB
                                                                                                       surface coal mining and reclamation                   section 337 in this investigation and has
                                               Control Number 1029–0027 in the
                                                                                                       operations on Federal lands. The                      issued a limited exclusion order
                                               subject line of your comments.
                                                                                                       information is needed to assist the                   prohibiting importation of infringing
                                               FOR FURTHER INFORMATION CONTACT: To                     regulatory authority to determine the                 non-volatile memory devices and
                                               request additional information about                    eligibility of an applicant to conduct                products containing the same and
                                               this ICR, contact John Trelease by email                coal mining on Federal lands.                         issued cease and desist orders directed
                                               at jtrelease@osmre.gov, or by telephone
                                                                                                          Form Number: None.                                 to the domestic respondents Toshiba
                                               at (202) 208–2783. You may also view
                                                                                                          Type of Review: Extension of a                     America, Inc. and its subsidiaries,
                                               the ICR at http://www.reginfo.gov/
                                                                                                       currently approved collection.                        Toshiba America Electronic
                                               public/do/PRAMain.
                                                                                                                                                             Components, Inc. and Toshiba America
                                               SUPPLEMENTARY INFORMATION: In                              Respondents/Affected Public:                       Information Systems, Inc. The
                                               accordance with the Paperwork                           Applicants for surface coal mine                      investigation is terminated.
                                               Reduction Act of 1995, we provide the                   permits on Federal lands, and State
                                                                                                       Regulatory Authorities.                               FOR FURTHER INFORMATION CONTACT:
                                               general public and other Federal
                                               agencies with an opportunity to                                                                               Panyin A. Hughes, Office of the General
                                                                                                          Total Estimated Number of Annual                   Counsel, U.S. International Trade
                                               comment on new, proposed, revised,                      Respondents: 5 applicants and 5 States.
                                               and continuing collections of                                                                                 Commission, 500 E Street SW,
                                                                                                          Total Estimated Number of Annual                   Washington, DC 20436, telephone 202–
                                               information. This helps us assess the                   Responses: 6 applicants and 6 States.
                                               impact of our information collection                                                                          205–3042. Copies of non-confidential
                                               requirements and minimize the public’s                     Estimated Completion Time per                      documents filed in connection with this
                                               reporting burden. It also helps the                     Response: Varies from 1 to 244 hours for              investigation are or will be available for
                                               public understand our information                       applicants depending on the activity,                 inspection during official business
                                               collection requirements and provides                    and 285 hours for each State regulatory               hours (8:45 a.m. to 5:15 p.m.) in the
                                               the requested data in the desired format.               authority.                                            Office of the Secretary, U.S.
                                                  A Federal Register notice with a 60-                    Total Estimated Number of Annual                   International Trade Commission, 500 E
                                               day public comment period soliciting                    Burden Hours: 1,225 hours for                         Street SW, Washington, DC 20436,
                                               comments on this collection of                          applicants and 1,425 hours for States.                telephone 202–205–2000. General
                                               information was published on July 6,                                                                          information concerning the Commission
                                                                                                          Respondent’s Obligation: Required to
                                               2018 (83 FR 31567). No comments were                                                                          may also be obtained by accessing its
                                                                                                       obtain or retain a benefit.
                                               received.                                                                                                     internet server (https://www.usitc.gov).
                                                                                                          Frequency of Collection: Once.                     The public record for this investigation
                                                  We are again soliciting comments on
                                               the proposed ICR that is described                         Total Estimated Annual Nonhour                     may be viewed on the Commission’s
                                               below. We are especially interested in                  Burden Cost: $0.                                      electronic docket (EDIS) at https://
                                               public comment addressing the                              An agency may not conduct or                       edis.usitc.gov. Hearing-impaired
                                               following issues: (1) Is the collection                 sponsor and a person is not required to               persons are advised that information on
                                               necessary to the proper functions of                    respond to a collection of information                this matter can be obtained by
                                               OSMRE; (2) is the estimate of burden                    unless it displays a currently valid OMB              contacting the Commission’s TDD
                                               accurate; (3) how might OSMRE                           control number.                                       terminal on 202–205–1810.
                                               enhance the quality, utility, and clarity                  Authority: The authorities for this                SUPPLEMENTARY INFORMATION: The
                                               of the information to be collected; and                 action are the Surface Mining Control                 Commission instituted Inv. No. 337–
                                               (4) how might OSMRE minimize the                        and Reclamation Act of 1977, as                       TA–1046 on April 12, 2017, based on a
                                                                                                                                                             complaint filed by Macronix
khammond on DSK30JT082PROD with NOTICES




                                               burden of this collection on the                        amended (30 U.S.C. 1201 et seq.), and
                                               respondents, including through the use                  the Paperwork Reduction Act of 1995                   International Co., Ltd. of Hsin-chu,
                                               of information technology.                              (44 U.S.C. 3501 et seq.).                             Taiwan and Macronix America, Inc. of
                                                  Comments that you submit in                                                                                Milpitas, California (collectively,
                                               response to this notice are a matter of                 John A. Trelease,                                     ‘‘Macronix’’). 82 FR 17687–88 (Apr. 12,
                                               public record. Before including your                    Acting Chief, Division of Regulatory Support.         2017). The complaint alleges violations
                                               address, phone number, email address,                   [FR Doc. 2018–22332 Filed 10–12–18; 8:45 am]          of section 337 of the Tariff Act of 1930,
                                               or other personal identifying                           BILLING CODE 4310–05–P                                as amended (19 U.S.C. 1337), in the


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                                                                            Federal Register / Vol. 83, No. 199 / Monday, October 15, 2018 / Notices                                           51981

                                               importation into the United States, the                 The ALJ also found that Macronix                      Chairman granted the IA’s motion for
                                               sale for importation, and the sale within               satisfied the importation requirement of              leave to file the response one day late.
                                               the United States after importation of                  section 337 (19 U.S.C. 1337(a)(1)(B)). Id.               On June 28, 2018, the Commission
                                               certain non-volatile memory devices                     The ALJ, however, found that the                      determined to review the final ID in part
                                               and products containing the same that                   accused products do not infringe the                  and requested the parties to brief certain
                                               infringe one or more of claims 1–8 of                   asserted claims of the ’360 patent and                issues. See 83 FR 31416–18 (July 5,
                                               U.S. Patent No. 6,552,360 (‘‘the ’360                   ’417 patent. See ID at 19–65, 118–130.                2018). Specifically, the Commission
                                               patent’’); claims 1–12 and 16 of U.S.                   The ALJ also found that Toshiba failed                determined to review the following: (1)
                                               Patent No. 6,788,602 (‘‘the ’602 patent’’);             to establish that the asserted claims of              The finding that Macronix failed to
                                               and claims 1–7, 11–16, and 18 of U.S.                   the ’417 patent are invalid for                       satisfy the domestic industry
                                               Patent No. 8,035,417 (‘‘the ’417 patent’’).             obviousness. ID at 132–141. Toshiba did               requirement; and (2) the findings of
                                               The notice of investigation named the                   not challenge the validity of the ’360                infringement and invalidity as to the
                                               following respondents: Toshiba                          patent. ID at 70. With respect to the ’602            ’602 patent. On July 12, 2018, the
                                               Corporation of Tokyo, Japan; Toshiba                    patent, the ALJ found that certain                    parties filed submissions to the
                                               America, Inc. of New York, New York;                    accused products infringe asserted                    Commission’s questions and also
                                               Toshiba America Electronic                              claims 1–10, but that claims 1–5 and 7–               briefed the issues of remedy, the public
                                               Components, Inc. of Irvine, California;                 10 are invalid for obviousness. ID at 71–             interest and bonding. On July 19, 2018,
                                               Toshiba America Information Systems,                    88, 91–117. Finally, the ALJ found that               the parties filed responses to the initial
                                               Inc. of Irvine, California; and Toshiba                 Macronix failed to establish the                      submissions.
                                               Information Equipment (Philippines),                    existence of a domestic industry that                    Having examined the record of this
                                               Inc. of Binan, Philippines (collectively,               practices the asserted patents under 19               investigation, including the final ID, and
                                               ‘‘Toshiba’’). The Office of Unfair Import               U.S.C. 1337(a)(2) and also failed to show             the parties’ submissions, the
                                               Investigations is a party to the                        a domestic industry in the process of                 Commission has determined to (1)
                                               investigation.                                          being established. See ID at 257–261,                 reverse the ALJ’s finding that the
                                                  On June 16, 2017, the Commission                     288–294.                                              accused products do not directly
                                               determined not to review the ALJ’s                         On May 10, 2018, the ALJ issued her                infringe the asserted claims of the ’602
                                               order (Order No. 11) granting an                        recommended determination on remedy                   patent; (2) affirm the ALJ’s indirect
                                               unopposed motion to amend the Notice                    and bonding. Recommended                              infringement and invalidity findings as
                                               of investigation to add Toshiba Memory                  Determination on Remedy and Bonding                   to the ’602 patent; and (3) reverse the
                                               Corporation of Tokyo, Japan as a                        (‘‘RD’’). The ALJ recommends that in the              ALJ’s finding that Macronix failed to
                                               respondent. See Order No. 11, Comm’n                    event the Commission finds a violation                establish a domestic industry in the
                                               Notice of Non-Review (June 16, 2017).                   of section 337, the Commission should                 process of being established. The
                                                  On October 17, 2017, the Commission                  issue a limited exclusion order                       Commission adopts the ID’s findings to
                                               determined not to review the ALJ’s                      prohibiting the importation of Toshiba’s              the extent they are not inconsistent with
                                               order (Order No. 20) granting an                        accused products that infringe the                    the Commission opinion issued
                                               unopposed motion to terminate the                       asserted claims of the asserted patents.              herewith. The Commission action
                                               investigation as to claims 11, 12, and 16               RD at 1–5. The ALJ also recommends                    results in a violation of section 337 as
                                               of the ’602 patent. See Order No. 20,                   issuance of cease and desist orders                   to claim 6 of the ’602 patent.
                                               Comm’n Notice of Non-Review (Oct. 17,                   against the domestic Toshiba                             Having found a violation of section
                                               2017).                                                  respondents based on the presence of                  337 in this investigation, the
                                                  On October 4, 2017, the ALJ held a                   commercially significant inventory in                 Commission has determined that the
                                               Markman hearing to construe certain                     the United States. RD at 5. With respect              appropriate form of relief is: (1) A
                                               disputed claim terms. On December 5,                    to the amount of bond that should be                  limited exclusion order prohibiting the
                                               2017, the ALJ issued Order No. 23                       posted during the period of Presidential              unlicensed entry of non-volatile
                                               (Markman Order), setting forth her                      review, the ALJ recommends that the                   memory devices and products
                                               construction of the disputed claim                      Commission set a bond in the amount                   containing the same that infringe claim
                                               terms.                                                  of 100 percent of entered value for                   6 of the ’602 patent that are
                                                  On January 18, 2018, the Commission                  Toshiba flash memory devices and solid                manufactured by, or on behalf of, or are
                                               determined not to review the ALJ’s                      state drives, and a bond in the amount                imported by or on behalf of
                                               order (Order No. 24) granting an                        of six percent of entered value for                   Respondents or any of their affiliated
                                               unopposed motion to terminate the                       Toshiba PCs imported during the period                companies, parents, subsidiaries, agents,
                                               investigation as to claims 1–7 and 18 of                of Presidential review. RD at 6–9.                    or other related business entities, or
                                               the ’417 patent. Order No. 24; Comm’n                      On May 14, 2018, Macronix filed a                  their successors or assigns, are excluded
                                               Notice of Non-Review (Jan. 18, 2018).                   petition for review challenging the ID’s              from entry for consumption into the
                                                  The ALJ held an evidentiary hearing                  finding of no violation of section 337.               United States, entry for consumption
                                               from February 8, 2018, through                          The IA also filed a petition for review               from a foreign-trade zone, or withdrawal
                                               February 14, 2018, and thereafter                       that day, challenging the ID’s finding                from a warehouse for consumption, for
                                               received post-hearing briefs.                           that Macronix failed to establish a                   the remaining term of the ’602 patent
                                                  On April 27, 2018, the ALJ issued her                domestic industry in the process of                   except under license of the patent
                                               final ID, finding no violation of section               being established and certain findings as             owner or as provided by law; and (2)
                                               337 by Toshiba in connection with the                   to the ’602 patent. Also on May 14,                   cease and desist orders prohibiting
                                               remaining claims, i.e., claims 1–8 of the               2018, Toshiba filed a contingent petition             domestic respondents Toshiba America,
khammond on DSK30JT082PROD with NOTICES




                                               ’360 patent; claims 1–10 of the ’602                    for review of the ID ‘‘in the event that              Inc. and its subsidiaries, Toshiba
                                               patent; and claims 11–16 of the ’417                    the Commission decides to review the                  America Electronic Components, Inc.
                                               patent. Specifically, the ALJ found that                ID.’’ On May 22, 2018, Macronix and                   and Toshiba America Information
                                               the Commission has subject matter                       Toshiba filed their respective responses              Systems, Inc. from conducting any of
                                               jurisdiction, in rem jurisdiction over the              to the petitions for review. On May 23,               the following activities in the United
                                               accused products, and in personam                       2018, the IA filed a response to the                  States: Importing, selling, marketing,
                                               jurisdiction over Toshiba. ID at 15–17.                 private parties’ petitions for review. The            advertising, distributing, transferring


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                                               51982                        Federal Register / Vol. 83, No. 199 / Monday, October 15, 2018 / Notices

                                               (except for exportation), and soliciting                any applications for any other DEA                        The Government also submitted a
                                               U.S. agents or distributors for, non-                   registrations.’’ Id.                                      Certification of Registration History,
                                               volatile memory device and products                        Regarding the Agency’s jurisdiction,                   which was sworn to on December 28,
                                               containing same covered by claim 6 of                   the Show Cause Order alleged that                         2017 by the Associate Chief of the
                                               the ’602 patent.                                        Registrant holds DEA Certificate of                       Registration and Program Support
                                                  The Commission has also determined                   Registration No. FR0024997, pursuant to                   Section. GX 1. In that Certification, she
                                               that the public interest factors                        which he is authorized to dispense                        stated that DEA Registration No.
                                               enumerated in section 337(d) and (f) (19                controlled substances as a practitioner                   FR0024997 ‘‘expires on April 30, 2018.’’
                                               U.S.C. 1337(d) and (f)) do not preclude                 in schedules II through V at the                          Id. at 1. The Associate Chief further
                                               issuance of the limited exclusion order                 registered address of Providence Family                   stated that ‘‘Phillip O. Rawlings, Jr.,
                                               or cease and desist orders. Finally, the                Physicians, 8833 Cottage Hill Road,                       M.D., has no other pending or valid
                                               Commission has determined that a bond                   Mobile, Alabama. Id. The Order also                       DEA registration(s) in Alabama.’’ Id.
                                               in the amount of 100 percent of entered                 alleged that this registration was set to                 According to the Agency’s current
                                               value for Toshiba flash memory devices,                 expire by its terms on April 30, 2018. Id.                registration records for Registrant, of
                                               solid-state drives, USB flash drives, and                  The substantive ground for the                         which I take official notice,2 DEA
                                               microcontroller units; and a bond in the                proceeding set forth in the Show Cause                    Registration No. FR0024997 expired on
                                               amount of six percent of entered value                  Order is that Registrant is ‘‘currently                   April 30, 2018, and he has not
                                               for Toshiba personal computers, multi-                  without authority to practice medicine                    submitted an application to renew his
                                               function printers, and air conditioners is              or handle controlled substances in the                    registration or for any other registration
                                               required to permit temporary                            State of Alabama, the state in which [he                  in the State of Alabama. Thus, I find
                                               importation during the period of                        is] registered with the DEA’’ because                     that Registrant’s registration expired on
                                               Presidential review (19 U.S.C. 1337(j))                 Registrant’s Alabama Medical License                      April 30, 2018, and that there is no
                                               of products that are subject to the                     and Alabama Controlled Substances                         application upon which to act.3
                                               remedial orders. The Commission’s                       Certificate have been in ‘‘Inactive-By                      DEA has long held that ‘‘ ‘if a
                                               orders and opinion were delivered to                    Request’’ status since December 31,                       registrant has not submitted a timely
                                               the President and to the United States                  2016 . Id. As a consequence, the Order                    renewal application prior to the
                                               Trade Representative on the day of their                alleged that ‘‘DEA must revoke your                       expiration date, then the registration
                                               issuance.                                               DEA registration.’’ Id. at 2.                             expires and there is nothing to revoke.’ ’’
                                                                                                          The Show Cause Order notified                          Donald Brooks Reece II, M.D., 77 FR
                                                  The authority for the Commission’s
                                                                                                       Registrant of his right to request a                      35054, 35055 (2012) (quoting Ronald J.
                                               determination is contained in section
                                                                                                       hearing on the allegations or to submit                   Riegel, 63 FR 67312, 67133 (1998)); see
                                               337 of the Tariff Act of 1930, as
                                                                                                       a written statement in lieu of a hearing,                 also Greg N. Rampey, D.O., 83 FR
                                               amended (19 U.S.C. 1337), and in Part
                                                                                                       the procedures for electing each option,
                                               210 of the Commission’s Rules of
                                                                                                       and the consequences for failing to elect                    2 Under the Administrative Procedure Act (APA),
                                               Practice and Procedure (19 CFR part
                                                                                                       either option. Id. (citing 21 CFR                         an agency ‘‘may take official notice of facts at any
                                               210).                                                                                                             stage in a proceeding—even in the final decision.’’
                                                                                                       1301.43). The Order also notified
                                                 By order of the Commission.                                                                                     U.S. Dept. of Justice, Attorney General’s Manual on
                                                                                                       Registrant of the opportunity to submit                   the Administrative Procedure Act 80 (1947) (Wm.
                                                 Issued: October 9, 2018                               a corrective action plan. Id. at 2–3                      W. Gaunt & Sons, Inc., Reprint 1979). In accordance
                                               Katherine Hiner,                                        (citing 21 U.S.C. 824(c)(2)(C)).                          with the APA and DEA’s regulations, Registrant is
                                               Supervisory Attorney.                                      On April 26, 2018, my office received                  ‘‘entitled on timely request to an opportunity to
                                                                                                                                                                 show to the contrary.’’ 5 U.S.C. 556(e); see also 21
                                               [FR Doc. 2018–22325 Filed 10–12–18; 8:45 am]            the Government’s Second Request for                       CFR 1316.59(e). To allow Registrant the opportunity
                                               BILLING CODE 7020–02–P
                                                                                                       Final Agency Action (SRFAA) 1                             to refute the facts of which I take official notice,
                                                                                                       describing Diversion Investigators’                       Registrant may file a motion for reconsideration
                                                                                                       attempts to serve the Show Cause Order                    within 15 calendar days of service of this order
                                                                                                                                                                 which shall commence on the date this order is
                                                                                                       and seeking a final order revoking
                                               DEPARTMENT OF JUSTICE                                   Registrant’s registration. SRFAA, at 2, 6.
                                                                                                                                                                 mailed.
                                                                                                                                                                    3 As already noted, my Office received the

                                               Drug Enforcement Administration                                                                                   Government’s Second Request for Final Agency
                                                                                                          1 On January 10, 2018, the Government submitted        Action on April 26, 2018. This filing arrived in my
                                                                                                       a Request for Final Agency Action seeking to revoke       office too late for me to issue a final decision and
                                               Phillip O. Rawlings, Jr., M.D.; Decision                Registrant’s same DEA registration based on an            order before the registration would expire on April
                                               and Order                                               October 31, 2017 Order to Show Cause. GX 6. In            30, 2018. DEA regulation 21 CFR 1316.67 requires
                                                                                                       that Request, the Government represented that             that I issue a final order that takes effect not less
                                                  On March 8, 2018, the Acting                         Registrant did not request a hearing and ‘‘ha[d] not      than 30 days from the date of publication in the
                                               Assistant Administrator, Diversion                      otherwise corresponded or communicated with               Federal Register unless the public interest
                                               Control Division, Drug Enforcement                      DEA regarding the Order served on him . . . within        necessitates an earlier effective date. The record
                                                                                                       30 days of receipt of the Order.’’ Id. at 1–2.            before me fails to include facts supporting a finding
                                               Administration (DEA), issued an Order                   However, on February 6, 2018, the then-Acting             that ‘‘the public interest in the matter necessitates
                                               to Show Cause to Phillip O. Rawlings,                   Administrator issued an Order noting that,                an earlier effective date.’’ 21 CFR 1316.67. Thus,
                                               Jr., M.D. (Registrant), of Mobile,                      ‘‘although the Government is clearly in possession        even if I had submitted a final order in this case
                                               Alabama. The Show Cause Order                           of information suggesting that Registrant now lives       to the Federal Register on the same day (April 26,
                                                                                                       in California, it has offered no explanation for why      2018) that my office received the SRFAA to revoke
                                               proposed the revocation of Registrant’s                 it did not attempt to obtain Registrant’s address         Registrant’s registration, I could not have issued an
                                               DEA Certificate of Registration No.                     from the Board of Medical Examiners and serve             order that would have taken effect by April 30, 2018
                                               FR0024997 on the ground that he has                     Registrant at that address.’’ GX 7, at 1. As a result,    because the Federal Register would not have been
                                               ‘‘no state authority to handle controlled               the then-Administrator denied the Government’s            able to publish it 30 days before the registration’s
khammond on DSK30JT082PROD with NOTICES




                                                                                                       Request for Final Agency Action without prejudice.        April 30, 2018 expiration. And as the Agency has
                                               substances.’’ Order to Show Cause,                      Id. at 2. See also SRFAA, at 1–2. By that time, the       previously noted, there is no point in issuing a
                                               Government Exhibit (GX) 8, at 1 (citing                 December 26, 2017 hearing date listed in the 2017         ruling on a Show Cause Order where, as here, that
                                               21 U.S.C. 824(a)(3)). For the same                      Show Cause Order had passed. SRFAA, at 2 n.1. As          ruling would constitute an advisory opinion subject
                                               reason, the Order also proposed the                     a result, the Agency issued the pending Show Cause        to vacation on judicial review. See, e.g., Josip Pasic,
                                                                                                       Order on March 8, 2018, with a new hearing date           M.D., 82 FR 24146, 24147 (2017) (‘‘As the requested
                                               denial of any of Registrant’s                           of April 24, 2018. Id.; GX 8, at 1. It is this new Show   factual findings and legal conclusions would be
                                               ‘‘applications for renewal or                           Cause Order for which the Government now seeks            subject to vacation on judicial review, there is no
                                               modification of such registration and                   final agency action.                                      point in making them.’’).



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Document Created: 2018-10-13 10:05:45
Document Modified: 2018-10-13 10:05:45
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice.
ContactPanyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone 202-205-3042. 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 (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.
FR Citation83 FR 51980 

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