Request for Reconsideration of CBP HQ Ruling H355307; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1415; Certain Pre- Stretched Synthetic Braiding Hair and Packaging Therefor

H361423
June 17, 2026
OT:RR:BSTC:EOE H361423 MAD
CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. Tony V. Pezzano Lippes Mathias LLP 420 Lexington Avenue, STE 2005 New York, NY 10170 Suite 3000 VIA EMAIL: [email protected] RE: Request for Reconsideration of CBP HQ Ruling H355307; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1415; Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor Dear Mr. Pezzano: Pursuant to 19 C.F.R. Part 177, the Exclusion Order Enforcement Branch (EOE), Regulations and Rulings, U.S. Customs and Border Protection (CBP) issues this letter in response to JBS Hair, Inc.’s (“JBS Hair”) Request for Reconsideration, dated May 14, 2026 (“Reconsideration”) of HQ H355307, dated April 20, 2026. In HQ H355307, we found that Vivace, Inc.’s (d/b/a Dae Do Inc.) (“Vivace”) redesigned articles at issue (the “Vivatress Products”), as described below, were not subject to the limited exclusion order (LEO or “1415 LEO”) that the U.S. International Trade Commission (ITC or “Commission”) issued as a result of Investigation No. 337-TA-1415 (“the 1415 investigation” or “the underlying investigation”) under Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“Section 337”). For the reasons below, we affirm the Ruling Letter. We further note that determinations of the Commission resulting from the underlying investigation or a related proceeding under 19 C.F.R. Part 210 are binding authority on CBP and, in the case of conflict will, by operation of law, modify or revoke any contrary CBP ruling or decision pertaining to Section 337 exclusion orders. Should a party disagree with CBP in the Ruling Letter (or this response), there are ancillary proceedings available at the ITC. This letter is the result of a request for reconsideration under 19 C.F.R. Part 177 that was conducted on an inter partes basis. The proceeding involved the two parties with a direct and demonstrable interest in the question presented by the Reconsideration: (1) your client, JBS Hair, the reconsideration requester and complainant in the 1415 investigation; and (2) Vivace, the
2 respondent in the 1415 investigation and ruling requester in HQ H355307. See 19 C.F.R. § 177.1(c). The parties were asked to identify in their submissions confidential information, including information subject to the administrative protective order in the underlying investigation, with [[red brackets]]. See 19 C.F.R. §§ 177.2, 177.8. Consistent with the above, the parties are directed to identify information in this ruling that should be bracketed in red [[ ]] because it constitutes confidential information, as defined below, such that it should be redacted from the public version of this ruling that will be published in accordance with 19 C.F.R. § 177.10. The parties are to contact the EOE Branch within ten (10) business days of the date of this ruling letter to identify such information with brackets. See, e.g., 19 C.F.R. § 177.8(a)(3). Please note that disclosure of information related to administrative rulings under 19 C.F.R. Part 177 is governed by, for example, 6 C.F.R. Part 5, 31 C.F.R. Part 1, 19 C.F.R. Part 103, and 19 C.F.R. § 177.8(a)(3). See, e.g., 19 C.F.R. § 177.10(a). In addition, CBP is guided by the laws relating to confidentiality and disclosure, such as the Freedom of Information Act (“FOIA”), as amended (5 U.S.C. § 552), the Trade Secrets Act (18 U.S.C. § 1905), and the Privacy Act of 1974, as amended (5 U.S.C. § 552a). A request for confidential treatment of information submitted in connection with a ruling requested under 19 C.F.R. Part 177 faces a strong presumption in favor of disclosure. See, e.g., 19 C.F.R. § 177.8(a)(3). The person seeking this treatment must overcome that presumption with a request that is appropriately tailored and supported by evidence establishing that: the information in question is customarily kept private or closely-held and either that the government provided an express or implied assurance of confidentiality when the information was shared with the government or there were no express or implied indications at the time the information was submitted that the government would publicly disclose the information. See Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019) (concluding that “[a]t least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of exemption 4.”); see also U.S. Department of Justice, Office of Information Policy (OIP): Step-by-Step Guide for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under Exemption 4 of the FOIA (updated 10/7/2019); see also OIP Guidance: Exemption 4 after the Supreme Court’s Ruling in Food Marketing Institute v. Argus Leader Media (updated 10/4/2019). I. BACKGROUND A more detailed description of the background of the underlying investigation, the patents and asserted claims in the 1415 LEO, the accused products from the underlying investigation, and the procedural history of the instant ruling request, other than the new procedural developments described below, was provided in the Ruling Letter and is adopted herein. Ruling Letter at 2-12. The Commission instituted a formal enforcement proceeding against Vivace on January 22, 2026. See Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Investigation No. 227-TA-1415, EDIS Doc. ID. 871354, F. R. Notice of Institution of Formal Enforcement Proceeding (“1415 Enforcement Proceeding”).
3 The Ruling Letter issued on April 20, 2026.1 The timeline of events following the issuance of the ruling is as follows: • On May 14, 2026, JBS Hair filed the Reconsideration. • On May 18, 2026, the EOE Branch established the schedule for this reconsideration proceeding, which provided Vivace with an opportunity to respond, and set a target date of June 15, 2026. • On May 29, 2026, in line with the schedule, Vivace provided its response (“Vivace Response”). • On May 29, 2026, the EOE Branch sent a letter to the ITC requesting clarification of certain findings from the underlying investigation (“Request for Clarification”) • On June 10, 2026, the ITC provided Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Investigation No. 337-TA-1415, EDIS Doc. ID. 884690, Clarification Response Letter to Chief Alaina van Horn of U.S. Customs and Border Protection (“ITC Letter”) in response to the Request for Clarification. • On June 11, 2026, the EOE Branch modified the schedule to consider the ITC Letter and extended the target date to June 18, 2026. II. ISSUE Whether JBS Hair has shown that the Ruling Letter is in error such that it should be revoked or modified. III. LEGAL FRAMEWORK The legal framework on Section 337 exclusion order administration and patent infringement was discussed in the Ruling Letter and is adopted herein. Ruling Letter at 12-15. IV. LAW AND ANALYSIS JBS Hair makes the following arguments in its Reconsideration of the Ruling Letter: The Ruling Letter should be revoked because it is contrary to Commission precedent. Specifically, the Commission already made a determination that Vivace’s Vivatress Products are “covered articles” that fall within the scope of investigation for the 1415 LEO and CDO when it instituted the 1415 Investigation Enforcement Proceeding on January 20, 2026. The Ruling Letter is also contrary to Commission precedent that holds the proper scope of an investigation should be based on the scope of the asserted patent claims or, at the very least, not narrower than the scope of the asserted patent claims. The Ruling Letter errs by limiting the 1 We incorporate by reference the entirety of HQ H355307.
4 scope of the LEO and CDO narrower than the scope of the asserted patent claims; and The Ruling Letter should be revoked because it is contrary to the Administrative Law Judge’s interpretation of the claim term “substantially cardioid shaped perimeter” in Order No. 27 at 11 (EDIS Doc. ID 839791) in the 1415 Investigation. Reconsideration at 1-2. CBP has reviewed the Ruling Letter and the parties’ arguments in this proceeding and finds that JBS Hair fails to provide any new evidence in the Reconsideration to establish that the Ruling Letter is incorrect either factually or legally. The contradictions alleged by JBS Hair in the Reconsideration simply repeat arguments previously made that have been explicitly addressed by CBP. As such, JBS Hair gives CBP no basis to revoke or modify the Ruling Letter. Nonetheless, we address these arguments separately below, for the sake of completeness. A. JBS Hair’s Position that the Commission Already Determined the Vivatress Products are “Covered Articles” JBS Hair first argues that the Ruling Letter is contrary to a determination made by the Commission that the Vivatress Products are “covered articles” that fall within the scope of the underlying investigation that resulted in issuance of the 1415 LEO. Id. at 1. JBS Hair alleges that the Commission’s institution of the 1415 Investigation Enforcement Proceeding indicated that the Vivatress Products are “covered articles” in the 1415 LEO. Id. This is incorrect. The EOE Branch sought to confirm with the Commission, via its Request for Clarification, whether it in fact has made such a determination by instituting the 1415 Enforcement Proceeding with respect to the Vivatress Products. ITC Letter at 1. In response to the EOE Branch in the ITC Letter, the Commission confirms: Contrary to complainant JBS Hair, Inc.’s (“JBS Hair”) assertion, the Commission’s institution of a formal enforcement proceeding against Vivace on January 22, 2026, did not amount to a determination that the Vivatress redesigned products are “covered articles.” See Comm’n Notice, 91 FR 2799-800 (Jan. 22, 2026). Unless otherwise stated, the Commission does not adjudicate claims or issues at the institution stage and did not do so in the enforcement proceeding relating to the above-referenced investigation. Rather, the Commission’s determination to institute is based on whether the complaint is sufficiently pleaded pursuant to the Commission’s rules. See Commission Rule 210.9(a), 19 C.F.R. 210.9(a) (“The Commission shall examine the complaint for sufficiency and compliance with the applicable sections of this chapter.”); see also Laerdal Med. Corp. v. Int’l Trade Comm’n, 910 F.3d 1207, 1213 (Fed. Cir. 2018) (“When a notice of investigation issues, therefore, the Commission must have already ensured that the complaint sufficiently pleaded a statutory violation”) (emphasis added).
5 Consistent with its practice, the Commission “examined the enforcement complaint and the supporting exhibits” and “determined that the complaint complies with the requirements for institution of a formal enforcement proceeding.” See Comm’n Notice, 91 FR at 2800. The Commission “delegated the enforcement proceeding to the Chief Administrative Law Judge (‘ALJ’) for designation of a presiding ALJ to conduct any necessary proceedings, issue an Enforcement Initial Determination, and make a recommendation on appropriate enforcement measures, if any.” See id. In particular, JBS Hair alleged in its enforcement complaint that “Vivace’s New Infringing Products . . . fall within the scope of the 1415 Investigation.” Enforcement Complaint at ¶ 13 (Dec. 18, 2025). Vivace disputed that allegation in its response to JBS Hair’s enforcement complaint. Response to Enforcement Complaint at ¶ 13 (Feb. 4, 2026) (“Vivace denies that the accused Vivatress products fall within th[e] identified scope.”). The dispute is presently before the presiding ALJ for adjudication. Accordingly, we confirm that the Commission did not find or determine that the Vivatress redesigned products are “covered articles” that fall within the scope of the LEO by instituting a formal enforcement proceeding against Vivace. Id. at 1-2 (emphasis added). We need not go any further in responding to JBS Hair’s argument, as the ITC Letter is unequivocal: the Commission has not determined that the Vivatress Products are “covered articles” within the scope of the 1415 Investigation and the 1415 LEO. This is the very issue that is in dispute in the 1415 Enforcement Proceeding. Since no Commission determination has been made, the Ruling Letter cannot be contrary to one. JBS Hair’s first argument, therefore, fails to be availing. B. JBS Hair’s Position that the Ruling Letter is Contrary to Commission Precedent JBS Hair next argues that “The Ruling Letter … is also contrary to Commission precedent that has “consistently ordered the exclusion of articles which infringe the relevant patent claims.” In the Matter of Certain Erasable Programmable Read Only Memories, Components Thereof, Products Containing Such Memories, and Processes For Making Such Memories, Inv. No. 337-TA-276, 1991 WL 11735258 Comm’n Op., at *5 (Jul. 19, 1991) (“EPROMS”).” Reconsideration at 2. JBS Hair contends that the Ruling Letter improperly limited the scope of the 1415 LEO to something narrower than the asserted patent claims by considering whether the Vivatress Products fall within the category of “covered articles” identified in the Notice of Investigation and the Limited Exclusion Order. Id. The EOE Branch maintains that it has already extensively addressed this argument in the Ruling Letter and is unconvinced by JBS Hair’s characterization of both Commission and CBP precedent. See Ruling Letter at 17-25.
6 As an initial matter, JBS Hair has not identified any conflict between the Ruling Letter and EPROMS. Rather, JBS Hair repeats the same argument it raised during the underlying Part 177 proceeding—namely, that the scope of the investigation and remedial orders must necessarily be coextensive with the broadest reach of the asserted patent claims. The EOE Branch does not dispute the proposition that exclusion orders extend beyond the specific models adjudicated during the investigation and may reach subsequently introduced products that infringe the relevant patent claims. Indeed, the Ruling Letter expressly acknowledged that principle. See Ruling Letter at 17-24. We do not read EPROMS as holding that the scope of a Commission investigation is necessarily coextensive with the broadest possible reach of the asserted patent claims, and as discussed below, neither does the Commission according to more recent precedent. In Certain Audio Players & Controllers, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1191, the Commission explained that “[a] Commission order … includes all products within the scope of the investigation that are covered by the patent claims as to which a violation has been found.” Comm’n Op. at 25 n.19 (Feb. 1, 2022) (emphasis added). The Commission's statement does not describe the reach of a remedial order solely in terms of patent infringement; rather, the Commission's formulation is conjunctive – the products it references are “within the scope of the investigation” and “covered by the patent claims.” Id. Accordingly, the relevant inquiry is not limited solely to whether an article practices the asserted patent claims but whether it also falls within the scope of the investigation and the resulting remedial order. Consistent with this principle, the Commission has repeatedly held that the scope of covered articles is defined by the notice of investigation and the plain-language product description adopted by the Commission. In Certain Toner Supply Containers and Components Thereof (II), Inv. No. 337-TA-1260, the Commission held that “the plain language description in the NOI should be used to define the ‘covered articles’ and ‘covered products’ in the remedial orders.” Comm’n Op. at 16 (Aug. 3, 2022) (emphasis added). Likewise, in Certain Icemaking Machines and Components Thereof, Inv. No. 337-TA-1369, the Commission explained that “the scope of the articles covered by [an] LEO will be defined consistent with the Commission’s notice of institution.” Comm’n Op. at 8 (Feb. 27, 2025). These decisions are consistent with Commission Rule 210.10, which requires the notice of investigation to “define the scope of the investigation in such plain language as to make explicit what accused products or category of accused products … will be the subject of the investigation.” 19 C.F.R. § 210.10(b)(1). The Commission has further explained that any remedy ultimately granted “must be limited to the plain English statement” defining the scope of the investigation. Certain Lithium Ion Batteries, Battery Cells, Battery Modules, Battery Packs, Components Thereof, and Processes Therefor, Inv. No. 337-TA-1159, Comm’n Op. at 80-81 (Mar. 4, 2021). Thus, both Commission precedent and the text of Commission Rule 210.10 define the scope of remedial orders in terms of the category of accused products without reference to patent claims. In applying the Commission’s precedent concerning its remedial orders under Section 337, the EOE Branch has recognized that the “application of a Section 337 exclusion” is a two-part process. See CBP HQ H338254 (dated January 7, 2025) at 19-30. This two-part process
7 involves “(i) [determining whether the article] is subject to the scope of the investigation – as governed by the notice of investigation with the plain language definition – and (ii) [determining whether the article] is covered by the relevant claims included in the exclusion order under the traditional two-step test for patent infringement.” CBP HQ H338254 (dated January 7, 2025) at 20 (emphasis in the original). As the EOE Branch further explained this approach in CBP HQ H338254: [Respondent’s] argument that [Complainant]’s theory of infringement … is “expanding” the scope of the exclusion order misunderstands the nature of Commission investigations and remedial orders under Section 337, which, as the precedent discussed below confirms, are not limited to the products accused of infringement. Instead, such remedial orders extend to any article that (i) is subject to the scope of the investigation – as governed by the notice of investigation with the plain language definition – and (ii) is covered by the relevant claims included in the exclusion order under the traditional two-step test for patent infringement. CBP HQ H338254 at 20, 25-26, 28 (January 7, 2025) (emphasis added). Accordingly, the EOE Branch rejects JBS Hair’s argument that Commission precedent requires the scope of covered articles to be identical to, or as broad as, every asserted patent claim. As discussed above, Commission precedent establishes that the scope of covered articles is determined by the plain-language definition adopted in the notice of investigation and incorporated into the remedial order. Whether an article additionally satisfies the asserted patent claims is a separate inquiry. The Commission adopted the following plain-language definition of the covered articles in the 1415 Investigation: “pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having different lengths and packaging for such products[.]” Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 831423, Institution of Investigation at 2 (Public) (September 4, 2024). The Commission used this statement to define the “covered articles” in the 1415 LEO as “pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having different lengths and packaging for such products[.]” 1415 LEO at ¶ 2. Thus, the Commission itself, not the EOE Branch, defined the category of products subject to the remedial order using language that includes a “substantially cardioid shaped perimeter.” The EOE Branch in the Ruling Letter merely applied the definition adopted by the Commission. Therefore, the Ruling Letter did not narrow the scope of the 1415 investigation or the 1415 LEO. Rather, it applied the scope of covered articles that the Commission itself adopted in the notice of investigation and expressly incorporated into the remedial order. Because the EOE Branch determined that the Vivatress Products are not covered articles within the scope of the 1415 LEO, it was unnecessary to proceed to a separate infringement inquiry. JBS Hair has therefore failed to identify any inconsistency between the Ruling Letter and Commission precedent
8 and has not provided any evidence that the scope of the 1415 Investigation and 1415 LEO cannot be anything but coextensive with the broadest possible reach of the asserted patent claims. C. JBS Hair’s Position that the Ruling Letter is Contrary to the Administrative Law Judge’s Construction of the Term JBS Hair finally argues that the Ruling Letter is “contrary to the Administrative Law Judge’s interpretation of the claim term ‘substantially cardioid shaped perimeter’” in Order No. 27 of the underlying investigation. Reconsideration at 4. The EOE Branch has already considered and properly rejected this contention. As an initial matter, JBS Hair's argument rests on the premise that the Administrative Law Judge (“ALJ”) adopted a construction ruling of the term “substantially cardioid shaped perimeter” that is inconsistent with the Ruling Letter. This is simply false, because the ALJ did not ultimately construe that term. As explained in the Ruling Letter: With regards to the term “substantially cardioid shaped perimeter,” the ALJ did not construe the term and rejected the following proposed language from the parties and the Commission’s Office of Unfair Import Investigations (“Staff”): “(1) JBS Hair’s proposal of ‘formed by pre-hackling and pre-stretching synthetic hair strands having different lengths’; (2) Respondents’ and Staff’s proposal of ‘a cusp and two cardioidal lobes’; and (3) Staff’s proposal of ‘a rounded end instead of a pointed one.’” The rejected language is identified in grey and strikethrough in the below chart: JBS Hair’s Proposed Constructions Respondents’ Proposed Constructions Staff’s Proposed Constructions “considerably inverted teardrop shape formed by pre-hackling and pre-stretching synthetic hair strands having differing lengths” “perimeter with a substantially cardioid appearance, including a cusp and two cardioidal lobes” “having a cardioid [heart-shaped] appearance that includes a cusp and two cardioidal lobes, resembling an inverted teardrop with a rounded end instead of a pointed one” Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 839791, Claim Construction Order at 11 (Public) (December 20, 2024). Ruling Letter at 27. First, JBS Hair’s argument appears to assume that because the ALJ rejected Respondent’s proposed language requiring “a cusp and two cardioidal lobes,” the ALJ necessarily determined that the cusp is not required. But the ALJ rejected all proposed constructions because the record was insufficient. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 839791, Claim Construction Order at 11 (Public) (December 20,
9 2024) (“Order No. 27”). Second, rejecting a proposed construction is not the same as adopting the opposite construction. Third, the EOE Branch did not rely on any of these rejected constructions in its consideration of the meaning of “substantially cardioid perimeter;” rather, it relied on dictionary definitions and the ALJ’s comments on the term. Ruling Letter at 28-29. The ALJ further expressly concluded that “this term requires further briefing for a proper construction” and deferred construction pending further evidentiary development. Order No. 27 at 11. Because the investigation terminated before that further development occurred, no final construction of the term was adopted in the underlying investigation. Accordingly, the EOE Branch once again rejects JBS Hair's characterization of Order No. 27 as having definitively construed the term “substantially cardioid shaped perimeter.” While the ALJ discussed the term and rejected certain proposed constructions offered by the parties and Staff, the ALJ expressly declined to adopt a final construction and instead determined that additional briefing and evidence were necessary. The absence of a final construction is particularly evident from the ALJ's statement that “this term requires further briefing for a proper construction.” Id. Thus, there is no adopted claim construction that conflicts with the Ruling Letter t. Additionally, even assuming that the ALJ's discussion in Order No. 27 is relevant to the present inquiry, the EOE Branch does not find any inconsistency between the Ruling Letter and the ALJ's observations. In discussing the term, the ALJ stated that a “cardioid” is a shape that “has a cusp, or pointed indentation, between two lobes, making a portion of it look like the top portion of a heart,” and further observed that a “substantially cardioid shaped perimeter” includes an arrangement where the perimeter includes a cusp and two cardioid lobes. See id. at 8-9. The Ruling Letter similarly concluded that the phrase “substantially cardioid shaped perimeter,” as used in the Commission's plain-language description of the covered articles, refers to a substantially heart-shaped or tear-shaped perimeter and that the Vivatress Products do not possess a perimeter that includes a portion resembling the top portion of a heart. Ruling Letter at 29-35. JBS Hair's argument overlooks an additional distinction recognized in the Ruling Letter: the issue before the EOE Branch was not necessarily the ultimate construction of a patent claim for purposes of determining infringement, but the meaning of the Commission's plain-language description of the articles covered by the Notice of Investigation and incorporated into the 1415 LEO. As the EOE Branch explained, the meaning of a term appearing in a Commission notice's plain-language product description is not necessarily identical to the meaning of the same term when used in a patent claim and analyzed under patent claim-construction principles. Id. at 28. Consequently, even if the ALJ had adopted a final claim construction—that would not automatically resolve the separate question of the scope of the investigation and remedial orders presented by the Commission's plain-language description of the covered articles. In conformity with the above, the EOE Branch concludes that JBS Hair has failed to identify any inconsistency between the Ruling Letter and the ALJ’s construction of the term “substantially cardioid shaped perimeter.” Accordingly, JSB Hair has not met its burden in establishing that the EOE Branch erred in the Ruling Letter.
10 V. HOLDING JBS Hair has failed to provide any new evidence in the Reconsideration to establish that the Ruling Letter, HQ H355307, is incorrect either factually or legally. For all the reasons above, we affirm the Ruling Letter.
Sincerely,
Alaina van Horn Chief, Intellectual Property Enforcement Branch / Exclusion Order Enforcement Branch CC: Mr. Tommy Martin Baker Botts LLP 700 K Street NW Washington, DC 20001 VIA EMAIL: [email protected]