Notice2024-27374
Certain Chocolate Milk Powder and Packaging Thereof; Notice of a Commission Determination Finding Enforcement Respondents To Have Violated the GEO; Issuance of Cease and Desist Orders; Termination of the Investigation
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Published
November 22, 2024
Issuing agencies
International Trade Commission
Abstract
Notice is hereby given that the U.S. International Trade Commission ("Commission") has determined to find Bharat Bazar Inc. ("Bharat Bazaar"); Coconut Hill Inc. d/b/a Coconut Hill ("Coconut Hill"); Organic Ingredients Inc. d/b/a Namaste Plaza Indian Super Market ("Organic Ingredients"); and New India Bazar Inc. d/b/a New India Bazar ("New India") (collectively, "Enforcement Respondents") to have violated the General Exclusion Order ("GEO") in this investigation. The Commission has also determined to issue cease and desist orders ("CDOs") against each of these four defaulting Enforcement Respondents. The investigation is terminated.
Full Text
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<title>Federal Register, Volume 89 Issue 226 (Friday, November 22, 2024)</title>
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[Federal Register Volume 89, Number 226 (Friday, November 22, 2024)]
[Notices]
[Pages 92722-92724]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-27374]
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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 Finding Enforcement Respondents To Have
Violated the GEO; Issuance of Cease and Desist Orders; Termination of
the Investigation
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 find Bharat Bazar Inc.
(``Bharat Bazaar''); Coconut Hill Inc. d/b/a Coconut Hill (``Coconut
Hill''); Organic Ingredients Inc. d/b/a Namaste Plaza Indian Super
Market (``Organic Ingredients''); and New India Bazar Inc. d/b/a New
India Bazar (``New India'') (collectively, ``Enforcement Respondents'')
to have violated the General Exclusion Order (``GEO'') in this
investigation. The Commission has also determined to issue cease and
desist orders (``CDOs'') against each of these four defaulting
Enforcement Respondents. The investigation is terminated.
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#81c4c5c8d2b2c9e4edf1c1f4f2e8f5e2afe6eef7"><span class="__cf_email__" data-cfemail="3d7879746e0e7558514d7d484e54495e135a524b">[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 of Union City, California;
Coconut Hill of Sunnyvale, California; Organic Food Inc. d/b/a Namaste
Plaza Indian Super Market (``Organic Food'') of Fremont, California;
and New India of San Jose, California. 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
[[Page 92723]]
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 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 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 with respect to service of the amended complaint and notice
of investigation, and upon the failure of these respondents to respond
to the amended complaint and notice of investigation, the CALJ 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'').
On June 13, 2022, 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 RID.
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.; GEO at 2 (Nov. 15, 2022). 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 the four 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. 88 FR at 78787.
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. 15, 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 Order No. 9 (Aug. 16, 2024) (``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 16-17.
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.
On October 2, 2024, the Commission issued a notice determining to
review the ID's findings that the Enforcement Respondents have violated
the GEO. 89 FR 81547-49 (Oct. 8, 2024). The Commission requested
briefing from the parties on (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; and (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. Id. at 81548. The Commission also requested briefing from
the parties, interested government agencies, and other interested
persons on the issues of remedy, the public interest, and bonding. Id.
at 81548-49.
On October 16, 2024, Meenaxi and OUII each filed submissions in
response to the Commission's notice, arguing that the public interest
does not preclude issuance of the requested CDOs. In its response,
Meenaxi requested the same bond as previously issued in the underlying
investigation during the period of Presidential review pursuant to
section 337(j) (19 U.S.C. 1337(j)). No other party filed a response.
Having examined the record of this investigation, including the
parties' submissions, the Commission has
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determined to find that the conditions set forth in section
337(g)(1)(A)-(E) (19 U.S.C. 1337(g)(1)(A)-(E)) have been satisfied, and
section 337(g)(1) directs the Commission, upon request, to issue a CDO
against a respondent found in default, based on the allegations
regarding a violation of the GEO in the complaint, which are presumed
to be true, unless after consideration of the public interest factors
in section 337(g)(1), it finds that such relief should not issue. The
Commission has further determined that the appropriate remedy in this
investigation is to issue a CDO against each Enforcement Respondent.
The Commission has also determined that the public interest factors
enumerated in subsection 337(g)(1) do not preclude the issuance of the
CDOs. The Commission has further determined that the bond during the
period of Presidential review pursuant to section 337(j) (19 U.S.C.
1337(j)) shall be in the amount of one hundred percent (100%) of the
entered value of the infringing articles. The investigation is
terminated.
The Commission's vote on this determination took place on November
18, 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: November 18, 2024.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2024-27374 Filed 11-21-24; 8:45 am]
BILLING CODE 7020-02-P
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