[Federal Register Volume 74, Number 249 (Wednesday, December 30, 2009)]
[Notices]
[Pages 69146-69147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30952]


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 INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-679]


In the Matter of: Certain Products Advertised as Containing 
Creatine Ethyl Ester Notice of Commission Decision Not To Review an 
Initial Determination Finding Respondent EST Nutrition in Default and 
Terminating the Investigation; Request for 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 has determined not to review an initial determination 
(``ID'') (Order No. 12) issued by the presiding administrative law 
judge finding respondent EST Nutrition LLC d/b/a Engineered Sport 
Technology, Inc. (``EST'') in default. EST is the last remaining 
respondent in this investigation. Accordingly, the Commission requests 
written submissions, according to the schedule set forth below, on 
remedy, public interest, and bonding with respect to the respondents in 
default.

FOR FURTHER INFORMATION CONTACT: James A. Worth, Esq., Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3065. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436, telephone (202) 205-2000. General information concerning the 
Commission may also be obtained by accessing its Internet server at 
http://www.usitc.gov. The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at http://edis.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: This investigation was instituted on June 
23, 2009, based upon a complaint filed on behalf of UneMed Corp. of 
Omaha, Nebraska (``UneMed'') on June 5, 2009, and supplemented on June 
8 and 10, 2009. 74 FR 29717 (June 23, 2009). The complaint alleged 
violations of section 337(a)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 
1337) in the importation into the United States, the sale for 
importation, and the sale within the United States after importation of 
certain products advertised as containing creatine ethyl ester by 
reason of false advertising in violation of Section 43(a) of the Lanham 
Act, 15 U.S.C. 1125(a)(1)(B) and the Nebraska Uniform Deceptive Trade 
Practices Act, R.R.S. Neb. Sec.  87-302 (2008). The complaint named as 
respondents Bodyonics, Ltd. of Hicksville, New York (``Bodyonics''); 
EST of Oviedo, Florida; Proviant Technologies, Inc. of Champaign, 
Illinois (``Proviant''); NRG-X Labs. of Bentonville, Arkansas (``NRG-
X''); and San Corporation of Oxnard, California.
    On September 29, 2009, the Commission issued notice of its decision 
not to review an ID terminating the investigation with respect to San 
Corporation on the basis of a consent order. On October 19, 2009, the 
Commission issued notice of its decision not to review an ID finding 
Bodyonics, NRG-X, and Proviant in default.
    Because the original service upon EST had been ineffective, actual 
service was effected on October 6, 2009, by personal service pursuant 
to special permission granted by Order No. 7. On November 4, 2009, 
UneMed filed a motion for an order directing EST to show cause why it 
should not be found in default for failing to respond to the complaint 
and Notice of Investigation. UneMed noted that it seeks only a limited 
exclusion order against all defaulting respondents. The Commission 
investigative attorney did not oppose the motion for an order to show 
cause. On November 17, 2009, the presiding administrative law judge 
issued Order No. 11, directing EST to show cause by December 3, 2009, 
why it should not be found in default pursuant to Commission Rule 
210.16, 19 CFR 210.16. No response to Order No. 11 was filed by the 
deadline date. On December 4, 2009, the administrative law judge issued 
the subject ID, finding EST in default and terminating the

[[Page 69147]]

investigation. No petitions for review were filed.
    EST is the last remaining respondent in this investigation. The 
investigation has been terminated with respect to all other respondents 
based on consent order and default.
    Section 337(g)(1) and Commission Rule 210.16(c) authorize the 
Commission to order relief against a respondent found in default 
unless, after consideration of the public-interest factors, it finds 
that such relief should not issue. UneMed has declared, pursuant to 
Commission Rule 210.16(c)(2), that it does not seek a general exclusion 
order.
    In conjunction with the final disposition of this investigation, 
therefore, the Commission may: (1) Issue an order that could result in 
the exclusion of articles manufactured or imported by any or all of the 
defaulting respondents; and/or (2) issue one or more cease and desist 
orders that could result in any or all of 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 In the Matter of Certain Devices for Connecting Computers via 
Telephone Lines, Inv. No. 337-TA-360, USITC Pub. No. 2843 (December 
1994) (Commission Opinion).
    If the Commission contemplates some form of remedy, it must 
consider the effects of that remedy upon the public interest. The 
factors the Commission will consider include the effect that an 
exclusion order and/or 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 
or disapprove the Commission's action. 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: The 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. Complainants and the Commission investigative 
attorney are also requested to submit proposed remedial orders for the 
Commission's consideration. Complainants are further requested to state 
the dates that any relevant intellectual property rights terminate and 
the HTSUS numbers under which the accused products are imported. The 
written submissions and proposed remedial orders must be filed no later 
than close of business on January 6, 2010. Reply submissions must be 
filed no later than the close of business on January 18, 2010. No 
further submissions on these issues will be permitted unless otherwise 
ordered by the Commission.
    Persons filing written submissions must file the original document 
and 12 true copies thereof with the Office of the Secretary on or 
before the aforementioned deadlines. Any person desiring to submit a 
document to the Commission in confidence must request confidential 
treatment unless the information has already been granted such 
treatment during the proceedings. All such requests should be directed 
to the Secretary of the Commission and must include a full statement of 
the reasons why the Commission should grant such treatment. See 19 CFR 
201.6. Documents for which confidential treatment by the Commission is 
sought will be treated accordingly. All nonconfidential written 
submissions will be available for public inspection at the Office of 
the Secretary.
    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 section 210.16 and 210.42-46 of the Commission's Rules of Practice 
and Procedure (19 CFR 210.16; 210.42-46).

    By order of the Commission.

    Issued: December 23, 2009.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-30952 Filed 12-29-09; 8:45 am]
BILLING CODE 7020-02-P