[Federal Register Volume 89, Number 195 (Tuesday, October 8, 2024)]
[Notices]
[Pages 81547-81549]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 https://edis.usitc.gov. 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 https://www.usitc.gov. 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, https://www.usitc.gov/documents/handbook_on_filing_procedures.pdf). 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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