Notice2022-20610
Certain Chocolate Milk Powder and Packaging Thereof; Commission Decision Not To Review an Initial Determination Granting Motion for Summary Determination of Violation of Section 337; Schedule for Filing Written Submissions on Remedy, the Public Interest, and Bonding
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Published
September 23, 2022
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined not to review an initial determination ("ID") (Order No. 27) of the presiding chief administrative law judge ("CALJ"), granting summary determination on violation of section 337 and including a recommended determination ("RD") on remedy and bonding. The Commission requests briefing from the parties, interested government agencies, and interested persons on the issues of remedy, the public interest, and bonding.
Full Text
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<title>Federal Register, Volume 87 Issue 184 (Friday, September 23, 2022)</title>
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[Federal Register Volume 87, Number 184 (Friday, September 23, 2022)]
[Notices]
[Pages 58130-58132]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20610]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1232 (Remand)]
Certain Chocolate Milk Powder and Packaging Thereof; Commission
Decision Not To Review an Initial Determination Granting Motion for
Summary Determination of Violation of Section 337; Schedule for Filing
Written Submissions on Remedy, the Public Interest, and Bonding
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission (``Commission'') has determined not to review an initial
determination (``ID'') (Order No. 27) of the presiding chief
administrative law judge (``CALJ''), granting summary determination on
violation of section 337 and including a recommended determination
(``RD'') on remedy and bonding. The Commission requests
[[Page 58131]]
briefing from the parties, interested government agencies, and
interested persons on the issues of remedy, the public interest, and
bonding.
FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-2532. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at <a href="https://edis.usitc.gov">https://edis.usitc.gov</a>. For help accessing EDIS, please email
<a href="/cdn-cgi/l/email-protection#a9ecede0fa9ae1ccc5d9e9dcdac0ddca87cec6df"><span class="__cf_email__" data-cfemail="febbbab7adcdb69b928ebe8b8d978a9dd0999188">[email protected]</span></a>. General information concerning the Commission may
also be obtained by accessing its internet server at <a href="https://www.usitc.gov">https://www.usitc.gov</a>. Hearing-impaired persons are advised that information on
this matter can be obtained by contacting the Commission's TDD
terminal, telephone (202) 205-1810.
SUPPLEMENTARY INFORMATION: On December 1, 2020, the Commission
instituted this investigation based on a complaint filed by Meenaxi
Enterprise Inc. of Edison, New Jersey (``Meenaxi''). 85 FR 77237 (Dec.
1, 2020). The complaint, as supplemented, alleges violations of section
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, due to the
importation into the United States, sale for importation, or sale in
the United States after importation of certain chocolate milk powder
and packaging thereof that purportedly infringe U.S. Trademark
Registration No. 4,206,026 (``the '026 mark''). Id. The complaint also
alleges the existence of a domestic industry. Id. The notice of
investigation names twenty-one respondents: Bharat Bazar Inc. of Union
City, California (``Bharat Bazar''); Madras Group Inc. d/b/a Madras
Groceries of Sunnyvale, California; Organic Food d/b/a Namaste Plaza
Indian Super Market of Fremont, California (``Organic Food''); India
Cash & Carry of Sunnyvale California; New India Bazar Inc. d/b/a New
India Bazar of San Jose, California (``New India''); Aapka Big Bazar of
Jersey City, New Jersey; Siya Cash & Carry Inc. d/b/a Siya Cash & Carry
of Newark, New Jersey; JFK Indian Grocery LLC d/b/a D-Mart Super Market
of Jersey City, New Jersey; Trinethra Indian Super Markets of Newark,
California; Apna Bazar Cash & Carry Inc. d/b/a Apna Bazar Cash & Carry
of Edison, New Jersey; Subzi Mandi Cash & Carry Inc. d/b/a Mandi Cash &
Carry of Piscataway, New Jersey; Patidar Cash & Carry Inc. d/b/a
Patidar Cash & Carry of South Plainfield, New Jersey; Keemat Grocers of
Sugarland, Texas; KGF World Food Warehouse Inc. d/b/a World Food Mart
of Houston, Texas; Telfair Spices of Sugarland Texas; Indian Groceries
and Spices Inc. d/b/a <a href="http://iShopIndia.com">iShopIndia.com</a> of Milwaukee, Wisconsin; Rani
Foods LP d/b/a Rani's World Foods of Houston, Texas; Tathastu Trading
LLC of South Plainfield, New Jersey; and Choice Trading LLC of
Guttenberg, New Jersey. Id. The Office of Unfair Import Investigation
(``OUII'') was named as a party. Id.
On February 10, 2021, the CALJ issued an ID (Order No. 6) finding
all respondents in default. OUII supported the motion. On March 2,
2021, the Commission issued a notice determining not to review Order
No. 6.
On May 24, 2021, Meenaxi moved for a summary determination of
violation by all of the respondents, each of whom had previously been
found in default. On June 16, 2021, OUII responded in support of the
motion. On December 1, 2021, the CALJ granted the motion as an ID
(Order No. 15). No petitions for review of the ID were filed. The ID,
however, noted discrepancies with respect to respondent Organic Food,
calling into question whether that respondent was ever properly served
with the complaint and notice of investigation and with the CALJ's
order to show cause why the respondents should not be found in default,
Order No. 5 (Jan. 13, 2021). See Order No. 15 at 1 n.1. The Commission
determined sua sponte to review Order No. 15, and ordered
reconsideration of Order No. 6 as to Organic Food and/or any other
respondents who may not have been properly served with documents in the
underlying investigation. Notice at 3 (Jan 18, 2022). The Commission
remanded the investigation to the CALJ for further proceedings. Id.
On remand, the CALJ assigned this investigation to himself. He
later issued Order No. 18, granting Meenaxi's unopposed motion for
leave to amend the complaint and notice of investigation to (i)
substitute Organic Food with proposed respondent Organic Ingredients
Inc. d/b/a Namaste Plaza Indian Super Market of San Diego, California
(``Organic Ingredients''); (ii) correct the address of respondent New
India Bazar Inc. d/b/a New India Bazar (``New India'') of San Jose,
California; (iii) correct the address of respondent Bharat Bazar Inc.
of Union City, California (``Bharat Bazar''); and (iv) supplement the
complaint with Exhibits 9-a, 9-b, and 9-c, concerning Organic Food and/
or Organic Ingredients. Order No. 18 at 1-5 (Mar. 11, 2022), unreviewed
by Comm'n Notice, 87 FR 22, 940 (Apr. 18, 2020). Meenaxi demonstrated
that Bharat Bazar had been actually served with all of the documents in
the investigation (prior to remand) despite incorrectly spelling Bharat
Bazar's address as being on ``Niled Road'' instead of ``Niles Road.''
Order No. 18 at 4.
The CALJ conducted remand proceedings as to Organic Ingredients and
New India, first ordering them to respond to the amended complaint and
notice of investigation, and then ordering them to respond to an order
to show cause why they should not be found in default. See Order No. 27
at 3 (Aug. 3, 2022). On May 19, 2022, the CALJ issued an initial
determination finding Organic Ingredients and New India in default.
Order No. 23 (May 19, 2022), unreviewed by Notice at 2 (June 14, 2022).
On June 15, 2022, Meenaxi filed a second motion for summary
determination of violation of section 337 as to the defaulting
respondents, and requesting the issuance of a general exclusion order.
On July 6, 2022, OUII responded in support of Meenaxi.
On August 23, 2022, the CALJ issued the subject ID (Order No. 27)
granting Meenaxi's motion. The ID adopts substantially all of the
findings from Order No. 15. In particular, the ID finds, inter alia,
that Meenaxi owns the '026 Mark, that the '026 Mark is valid, that the
respondents import or sell after importation products that bear the
'026 Mark, that the respondents infringe the '026 Mark, and that the
technical prong and economic prong of the domestic industry requirement
have been satisfied.\1\ Order No. 27 at 4 (citing Order No. 15 at 12-
29). The ID also finds that Organic Ingredients and New India have sold
the infringing products after importation into the United States and
that these respondents infringe the '026 Mark by selling these
products. ID at 9-10. As to remedy, the RD finds that there is a
widespread pattern of unauthorized use of the asserted patents and that
a general exclusion order is necessary to prevent circumvention. Order
No. 27 at 18 (citing Order No. 15 at 29-33). The RD recommends a bond
rate of one hundred (100%) because complete pricing information and
royalty information is not available. Order No. 27 at 19 (citing Order
No. 15 at 34-35).
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\1\ To the extent the ID finds that quality control investments
as a category can never be counted for the economic prong of the
domestic industry requirement, see Order No. 15 at 27, Commissioners
Schmidtlein and Karpel do not join that finding. Any such
disagreement, however, is not outcome determinative in this
investigation.
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No petitions for review of the ID were filed.
[[Page 58132]]
The Commission has determined not to review the ID.
In connection with the final disposition of this investigation, the
statute authorizes issuance of: (1) an exclusion order that could
result in the exclusion of the subject articles from entry into the
United States, and/or (2) one or more cease and desist orders
(``CDOs'') that could result in the defaulting respondents being
required to cease and desist from engaging in unfair acts in the
importation and sale of such articles. Accordingly, the Commission is
interested in receiving written submissions that address the form of
remedy, if any, that should be ordered. If a party seeks exclusion of
an article from entry into the United States for purposes other than
entry for consumption, the party should so indicate and provide
information establishing that activities involving other types of entry
either are adversely affecting it or likely to do so. For background,
see Certain Devices for Connecting Computers via Telephone Lines, Inv.
No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (December
1994).
The statute requires the Commission to consider the effects of any
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that an exclusion order
and/or CDO would have on: (1) the public health and welfare; (2)
competitive conditions in the U.S. economy; (3) U.S. production of
articles that are like or directly competitive with those that are
subject to investigation; and (4) U.S. consumers. The Commission is
therefore interested in receiving written submissions that address the
aforementioned public interest factors in the context of this
investigation.
If the Commission orders some form of remedy, the U.S. Trade
Representative, as delegated by the President, has 60 days to approve,
disapprove, or take no action on the Commission's determination. See
Presidential Memorandum of July 21, 2005. 70 FR 43251 (July 26, 2005).
During this period, the subject articles would be entitled to enter the
United States under bond, in an amount determined by the Commission and
prescribed by the Secretary of the Treasury. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed if a remedy is ordered.
Written Submissions: Parties to this investigation, interested
government agencies, and any other interested parties are invited to
file written submissions on the issues of remedy, the public interest,
and bonding. Such submissions should include views on the RD by the
CALJ on remedy and bonding.
In its initial written submissions, Meenaxi is also requested to
identify the remedy sought and Meenaxi and OUII are also requested to
submit proposed remedial orders for the Commission's consideration.
Meenaxi is further requested to provide the HTSUS subheadings under
which the subject articles are imported and to supply identification
information for all known importers of the subject articles.
Initial written submissions, including proposed remedial orders,
must be filed no later than close of business on October 3, 2022. Reply
submissions must be filed no later than the close of business on
October 10, 2022. No further submissions on any of these issues will be
permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document
electronically on or before the deadlines stated above. The
Commission's paper filing requirements in 19 CFR 210.4(f) are currently
waived. 85 FR 15798 (Mar. 19, 2020). Submissions should refer to the
investigation number (Inv. No. 337-TA-1232) in a prominent place on the
cover page and/or the first page. (See Handbook for Electronic Filing
Procedures, <a href="https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf">https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf</a>). Persons with questions regarding
filing should contact the Secretary (202-205-2000).
Any person desiring to submit a document to the Commission in
confidence must request confidential treatment by marking each document
with a header indicating that the document contains confidential
information. This marking will be deemed to satisfy the request
procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b)
& 210.5(e)(2)). Documents for which confidential treatment by the
Commission is properly sought will be treated accordingly. A redacted
non-confidential version of the document must also be filed
simultaneously with any confidential filing. All information, including
confidential business information and documents for which confidential
treatment is properly sought, submitted to the Commission for purposes
of this Investigation may be disclosed to and used: (i) by the
Commission, its employees and Offices, and contract personnel (a) for
developing or maintaining the records of this or a related proceeding,
or (b) in internal investigations, audits, reviews, and evaluations
relating to the programs, personnel, and operations of the Commission
including under 5 U.S.C. Appendix 3; or (ii) by U.S. government
employees and contract personnel, solely for cybersecurity purposes.
All contract personnel will sign appropriate nondisclosure agreements.
All non-confidential written submissions will be available for public
inspection at the Office of the Secretary and on EDIS.
The Commission vote for these determinations took place on
September 19, 2022.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: September 19, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-20610 Filed 9-22-22; 8:45 am]
BILLING CODE 7020-02-P
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