On November 21, 2022, the U.S. International Trade Commission published in the Federal Register (87 FR 70863) Flocked Swabs, Products Containing Flocked Swabs, and Methods of Using Same; Notice of Request for Submissions on the Public Interest
Section 337 of the Tariff Act of 1930 provides that, if the U.S. International Trade Commission finds a violation (i.e., violation of intellectual property rights), it shall exclude the articles concerned from the United States unless, after considering the effect of such exclusion upon the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, it finds that such articles should not be excluded from entry.
The Commission is soliciting submissions on public interest issues raised by the recommended relief should the Commission find a violation, specifically: a general exclusion order ("GEO") directed to certain flocked swabs and products containing same, or, if no GEO is issued, a limited exclusion order directed to certain flocked swabs and products containing same imported, sold for importation, and/or sold after importation by respondents Wuxi NEST Biotechnology Co., Ltd., NEST Scientific Inc., and NEST Scientific USA (collectively, "NEST"); Jiangsu Changfeng Medical Industry Co.; BioTeke Corporation (Wuxi) Co., Ltd.; Miraclean Technology Co.; and Huachenyang (Shenzhen) Technology Co., Ltd. and HCY USA, LLC (collectively, "Respondents"); and a cease and desist order directed to the NEST Respondents.
The Commission is interested in further development of the record on the public interest in this investigation. Accordingly, members of the public are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the ALJ's Recommended Determination on Remedy and Bonding issued in this investigation on November 14, 2022. Comments should address whether issuance of the recommended remedial orders in this investigation, should the Commission find a violation, would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) explain how the articles potentially subject to the recommended remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third-party suppliers have the capacity to replace the volume of articles potentially subject to the recommended orders within a commercially reasonable time; and
(v) explain how the recommended orders would impact consumers in the United States.
Written submissions must be filed no later than by close of business on December 14, 2022.
