Notice2024-23208
Certain Chocolate Milk Powder and Packaging Thereof; Notice of a Commission Determination To Review an Initial Determination Granting a Motion for Summary Determination of Violation of the General Exclusion Order; Request for Briefing on the Issues Under Review and on Remedy, Public Interest, and Bonding
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Published
October 8, 2024
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to review an initial determination ("ID") (Order No. 9) of the presiding administrative law judge ("ALJ") granting a motion for summary determination of violation of the General Exclusion Order ("GEO"). The Commission has determined to review the ID's findings that there have been violations of the GEO. The Commission requests written submissions from the parties on the issues under review and from the parties, interested government agencies, and other interested persons on the issues of remedy, the public interest, and bonding as to the asserted trademark, under the schedule set forth below.
Full Text
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<title>Federal Register, Volume 89 Issue 195 (Tuesday, October 8, 2024)</title>
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[Federal Register Volume 89, Number 195 (Tuesday, October 8, 2024)]
[Notices]
[Pages 81547-81549]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23208]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1232 (Enforcement)]
Certain Chocolate Milk Powder and Packaging Thereof; Notice of a
Commission Determination To Review an Initial Determination Granting a
Motion for Summary Determination of Violation of the General Exclusion
Order; Request for Briefing on the Issues Under Review and on Remedy,
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 to review an initial
determination (``ID'') (Order No. 9) of the presiding administrative
law judge (``ALJ'') granting a motion for summary determination of
violation of the General Exclusion Order (``GEO''). The Commission has
determined to review the ID's findings that there have been violations
of the GEO. The Commission requests written submissions from the
parties on the issues under review and from the parties, interested
government agencies, and other interested persons on the issues of
remedy, the public interest, and bonding as to the asserted trademark,
under the schedule set forth below.
FOR FURTHER INFORMATION CONTACT: Paul Lall, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 205-2043. 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#2e6b6a677d1d664b425e6e5b5d475a4d00494158"><span class="__cf_email__" data-cfemail="1752535e44245f727b675762647e637439707861">[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
on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted the original
investigation on December 1, 2020, based on a complaint filed on behalf
of Meenaxi Enterprise Inc. (``Meenaxi'') of Edison, New Jersey. 85 FR
77237-38 (Dec. 1, 2020). The complaint alleged violations of section
337 of the Tariff Act of 1930, 19 U.S.C. 1337, based upon the
importation into the United States, the sale for importation, and the
sale within the United States after importation of certain chocolate
milk powder and packaging thereof by reason of infringement of U.S.
Trademark Registration No. 4,206,026 (``the '026 mark''). The
Commission's notice of investigation named several respondents,
including but not limited to Bharat Bazar Inc. of Union City,
California (``Bharat Bazaar''); Coconut Hill Inc. d/b/a Coconut Hill of
Sunnyvale, California (``Coconut Hill''); Organic Food d/b/a Namaste
Plaza Indian Super Market (``Organic Food'') of Fremont, California;
and New India Bazar Inc. d/b/a New India Bazar of San Jose, California
(``New India''). Id. at 77237. The Office of Unfair Import
Investigations (``OUII'') was also a party to the investigation. Id.
In the underlying investigation, all respondents were found in
default. See Order No. 6 (Feb. 10, 2021), unreviewed by Comm'n Notice
(Mar. 2, 2021); Order No. 23 (May 19, 2022), unreviewed by Comm'n
Notice (Jun. 14, 2022). On May 24, 2021, Meenaxi moved for summary
determination of violation of section 337 by the respondents found in
default by Order No. 6 and requested a GEO. On December 1, 2021, the
former chief administrative law judge (``former CALJ'') granted the
motion as an initial determination (``ID'') (Order No. 15), but 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. No petitions for review of
the ID were filed. 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. See Comm'n Notice at 3 (Jan.
18, 2022). The Commission remanded the investigation to an ALJ for
further proceedings. Id.
On remand, the current chief administrative law judge (``CALJ'')
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 (``Organic Ingredients'') of San
Diego, California; (ii) correct the address of respondent New India;
(iii) correct the address of respondent Bharat Bazar; and (iv)
supplement the complaint with Exhibits
[[Page 81548]]
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 (Apr.
12, 2022); see also 87 FR 22940-41 (Apr. 18, 2022). Meenaxi also
demonstrated that Bharat Bazar actually had been 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.'' See Order No. 18 at 4.
The CALJ conducted remand proceedings as to Organic Ingredients and
New India to respond to the amended complaint and notice of
investigation, and then ordered them to respond to an order to show
cause why they should not be found in default. See Order No. 19 (Mar.
11, 2022); Order No. 21 at 2-3 (May 3, 2022). On May 19, 2022, the CALJ
issued an ID finding Organic Ingredients and New India in default.
Order No. 23 (May 19, 2022), unreviewed by Comm'n Notice (June 14,
2022). Accordingly, the Commission found all respondents in default
(collectively with the respondents previously found in default, the
``Defaulting Respondents'').
Subsequently, on June 15, 2022, following the remand determination
of default, Meenaxi again moved for summary determination of violation
by the Defaulting Respondents and requested a GEO. On July 6, 2022,
OUII filed a response supporting the motion.
On August 3, 2022, the CALJ issued a remand ID (``RID'') (Order No.
27), granting the second motion for summary determination and finding a
violation of section 337 with respect to the '026 mark. The RID found
that all Defaulting Respondents met the importation requirement and
that Meenaxi satisfied the domestic industry requirement. See 19 U.S.C.
1337(a)(1-3). No party petitioned for review of the ID.
On September 19, 2022, the Commission determined not to review the
RID. See 87 FR 58130-32 (Sept. 23, 2022). On November 15, 2022, the
Commission issued a final determination finding a violation, issuing a
GEO prohibiting the unlicensed importation of chocolate milk powder and
packaging thereof that infringe the '026 mark, and terminating the
investigation. See 87 FR 70864-66 (Nov. 21, 2022). The GEO prohibits
the unlicensed importation of ``chocolate milk powder in consumer-sized
container with the Bournvita label.'' Id. On the same day, the
Commission issued an opinion explaining the basis for its final
determination.
On November 9, 2023, the Commission determined to institute an
enforcement proceeding under Commission Rule 210.75 to investigate
alleged violations of the GEO by four respondents: (1) Organic
Ingredients; (2) New India; (3) Bharat Bazar; and (4) Coconut Hill
(collectively the ``Enforcement Respondents''). See Comm'n Notice, EDIS
Doc. ID 808258 (Nov. 9, 2023); see also 88 FR 78786-87 (Nov. 16, 2023);
89 FR 15220 (Mar. 1, 2024). OUII is also named as a party. Id.
On January 10, 2024, the presiding ALJ issued an order directing
the Enforcement Respondents to show cause why they should not be found
in default and why judgment should not be rendered against them for
failing to respond to the enforcement complaint and notice of
investigation. See Order No. 6 (Jan. 10, 2024). Order No. 6 directed
the Enforcement Respondents to make any showing of good cause by no
later than February 2, 2024. Id. at 3. No party responded to Order No.
6. See Order No. 8 at 1 (Feb. 13, 2024).
On March 14, 2024, the Commission determined that the four
Enforcement Respondents were in default. See Order No. 8 (Feb. 13,
2024), unreviewed by Comm'n Notice (Mar. 14, 2024). On March 15, 2024,
Meenaxi filed a motion requesting summary determination of violation of
the GEO and the issuance of CDOs against the four Enforcement
Respondents. See ID at 5.
On August 16, 2024, the presiding ALJ issued the subject ID (Order
No. 9), granting Meenaxi's motion and recommending issuance of the
requested CDOs. The ALJ concluded that ``the unrebutted evidence
summarized below demonstrates that the Enforcement Respondents have
imported and/or sold after importation chocolate milk powder products
bearing the `Bournvita' label'' in violation of the GEO. ID at 16. The
ID noted that Meenaxi alleges that the Enforcement Respondents have
violated the GEO by offering for sale, selling, advertising, and aiding
and abetting the sale for Cadbury's ``BOURNVITA'' products. Id. at 17-
18. The ID explained that ``[t]hese (or similar) products were found to
infringe the '026 Mark during the violation phase'' of this
investigation. Id. at 18. No party filed a petition seeking review of
the ID.
On August 19, 2024, the Commission issued a notice soliciting
submissions on public interest issues raised by the recommended relief
should the Commission find a violation of the GEO, specifically, CDOs
against the four Enforcement Respondents: (1) Bharat Bazaar; (2)
Coconut Hill; (3) Organic Ingredients; and (4) New India. 89 FR 68203-
04 (Aug. 23, 2024). No comments were received in response to the
notice.
Having reviewed the record of the investigation, including the
enforcement complaint, the ID, and the parties' submissions to the ALJ,
the Commission has determined to review the ID's findings that the
Enforcement Respondents have violated the GEO. In connection with these
findings, the Commission requests responses from the parties to the
following questions:
(1) Whether the sale of infringing products imported before the
issuance of a GEO but sold in the United States after the issuance of
that order constitutes a violation of the GEO?
(2) Whether a complainant must provide evidence of importation of
infringing products after the date on which the GEO issued in order to
establish a violation of a GEO in an enforcement proceeding under
Commission Rule 210.75 (19 CFR 210.75), and whether such evidence was
presented here?
(3) Whether 19 U.S.C. 1337(g)(1) applies to allegations of a
violation of a GEO in an enforcement proceeding involving defaulting
Enforcement Respondents?
Written Submissions: The parties are requested to file written
submissions on the questions identified in this notice.
In connection with the final disposition of this enforcement
proceeding, the statute authorizes issuance of, inter alia, cease and
desist orders in addition to the outstanding GEO, which could result in
the 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.
The statute requires the Commission to consider the effects of that
remedy upon the public interest. The public interest factors the
Commission will consider include the effect that cease and desist
orders 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,
[[Page 81549]]
2005, 70 FR 43251 (July 26, 2005). During this period, the Enforcement
Respondents would be entitled to continue the activities in the CDOs
under bond, except to the extent they are prohibited by the outstanding
GEO, in an amount determined by the Commission. The Commission is
therefore interested in receiving submissions concerning the amount of
the bond that should be imposed if a remedy is ordered.
Parties to the investigation, interested government agencies, and
any other interested parties are encouraged to file written submissions
on the issues of remedy, the public interest, and bonding. Such
submissions should address the recommended determination by the ALJ on
remedy and bonding.
In its initial submission, Complainant is also requested to
identify the remedy sought and Complainant and OUII are requested to
submit proposed remedial orders for the Commission's consideration. The
initial written submissions and proposed remedial orders must be filed
no later than close of business on October 16, 2024. Reply submissions
must be filed no later than the close of business on October 23, 2024.
No further submissions on these issues will be permitted unless
otherwise ordered by the Commission. Opening submissions are limited to
25 pages. Reply submissions are limited to 15 pages. 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 Enforcement'') 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. Any non-
party wishing to submit comments containing confidential information
must serve those comments on the parties to the investigation pursuant
to the applicable Administrative Protective Order. A redacted non-
confidential version of the document must also be filed with the
Commission and served on any parties to the investigation within two
business days of 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 nonconfidential written submissions will be available for public
inspection on EDIS.
The Commission's vote on this determination took place on October
2, 2024.
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 2, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-23208 Filed 10-7-24; 8:45 am]
BILLING CODE 7020-02-P
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