[Federal Register Volume 75, Number 97 (Thursday, May 20, 2010)]
[Notices]
[Pages 28285-28286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12102]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-678]


In the Matter of Certain Energy Drink Products; Notice of 
Commission Decision Not To Review an Initial Determination of Violation 
of Section 337; Schedule for Submissions 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 has determined not to review a final initial determination 
(``final ID'') (Order No. 34) issued by the presiding administrative 
law judge (``ALJ'') finding a violation of Section 337 of the Tariff 
Act of 1930, as amended (``section 337'') in the above-identified 
investigation.

FOR FURTHER INFORMATION CONTACT: James A. Worth, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street, SW., 
Washington, DC 20436, telephone 202-205-3065. Copies of the public 
version of the ID and all nonconfidential 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. Hearing-impaired persons 
are advised that information on this matter can be obtained by 
contacting the Commission's TDD terminal on 202-205-1810. General 
information concerning the Commission may also be obtained by accessing 
its Internet server (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.

SUPPLEMENTARY INFORMATION: On June 17, 2009, the Commission instituted 
this investigation, based on a complaint filed by Red Bull GmbH of 
Fuschl am See, Austria, and Red Bull North America of Santa Monica, 
California (collectively, ``Red Bull'') filed on May 15, 2009, and 
supplemented on June 1, 2009. The respondents named in the notice of 
investigation were: Chicago Import Inc., of Chicago, Illinois 
(``Chicago Import''); Lamont Distr., Inc., a/k/a Lamont Distributors 
Inc., of Brooklyn, New York (``Lamont''); India Imports, Inc., a/k/a 
International Wholesale Club of Metairie, Louisiana (``India 
Imports''); Washington Food and Supply of DC, Inc., a/k/a Washington 
Cash & Carry of Washington, DC (``Washington Food''); Vending Plus, 
Inc., of Glen Burnie, Maryland; and Baltimore Beverage Co., Glen 
Burnie, Maryland. The complaint alleged violations of Section 337 of 
the Tariff Act of 1930, as amended, by reason of the importation, the 
sale for importation, or the sale after importation, of certain energy 
drink products that infringe U.S. Trademark Registration Nos. 
3,092,197; 2,946,045; 2,2994,429; 3,479,607 and U.S. Copyright 
Registration No. VA0001410959. The complaint further alleged that an 
industry in the United States exists as required by subsection (a)(2) 
of section 337. On August 12, 2009, the Commission determined not to 
review an ID (Order No. 7) granting a motion to amend the notice of 
investigation to clarify that Vending Plus, Inc., and Baltimore 
Beverage Co., comprise a single entity, Vending Plus, Inc. d/b/a 
Baltimore Beverage Co. (``Vending Plus''). On September 30, 2009, the 
Commission determined not to review an ID (Order No. 11) granting a 
motion to amend the notice of investigation to include the following 
additional respondents: Posh Nosh Imports (USA), Inc., of South Kearny, 
New Jersey (``Posh Nosh''); Greenwich, Inc., of Florham Park, New 
Jersey (``Greenwich''); Advantage Food Distributors Ltd., of Suffolk, 
UK (``Advantage Food''); Wheeler Trading, Inc., of Miramar, Florida 
(``Wheeler Trading''); Avalon International General Trading, LLC, of 
Dubai, United Arab Emirates (``Avalon''); and Central Supply, Inc., of 
Brooklyn, NY (``Central Supply'').
    On January 5, 2010, the Commission determined not to review IDs 
(Order Nos. 21 and 22) finding Lamont and Avalon in default pursuant to 
Commission Rule 210.16. On January 20, 2010, the Commission determined 
not to review four IDs (Order Nos. 24, 25, 26, and 27) terminating the 
investigation as to respondents Wheeler Trading, Washington Food, India 
Imports, and Vending Plus on the basis of settlement agreements. On 
January 28, 2010, the Commission determined not to review IDs (Order 
Nos. 29 and 30) finding respondents Posh Nosh, Greenwich, Advantage 
Food, and Chicago Imports in default pursuant to Commission Rule 
210.16. On February 16, 2010, the Commission determined not to review 
an ID (Order No. 32) finding respondent Central Supply in default 
pursuant to Commission Rule 210.16.
    On December 2, 2009, Red Bull moved for summary determination on 
the issues of domestic industry,

[[Page 28286]]

importation, and violation of Section 337. Pursuant to Commission Rule 
210.16(c)(2), 19 CFR 216(c)(2), Red Bull also stated that it was 
seeking a general exclusion order. On December 23, 2009, the Commission 
investigative attorney submitted a response, in support of a finding 
that domestic industry exists and that Section 337 has been violated by 
defaulting respondents Avalon, Posh Nosh, Greenwich, Advantage Food, 
Central Supply, and Chicago Import, but not by respondent Lamont. On 
January 13, 2010, and again on March 10, 2010, Red Bull filed without 
objection supplemental declarations and attachments to its motion for 
summary determination.
    On March 31, 2010, the presiding administrative law judge issued 
the subject final ID, Order No. 34, granting Red Bull's motion for 
summary determination of violation with respect to respondents Avalon, 
Posh Nosh, Greenwich, Advantage Food, Central Supply, and Chicago 
Import. He also recommended a general exclusion order and a 100 percent 
bond to permit importation during the Presidential review period.
    No petitions for review were filed. The Commission has determined 
not to review Order No. 34.
    In connection with the final disposition of this investigation, the 
Commission may (1) issue an order that could result in the exclusion of 
the subject articles from entry into the United States, and/or (2) 
issue one or more cease and desist orders that could result in the 
respondent 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: 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 also requested to state the HTSUS 
numbers under which the accused products are imported.
    Written submissions must be filed no later than close of business 
on May 28, 2010. Reply submissions must be filed no later than the 
close of business on June 7, 2010. Such submissions should address the 
ALJ's recommended determinations on remedy and bonding which were made 
in Order No. 34. 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 
and 12 true copies thereof on or before the deadlines stated above with 
the Office of the Secretary. 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 investigation. All such requests should be directed to the 
Secretary to 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 sections 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: May 14, 2010.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2010-12102 Filed 5-19-10; 8:45 am]
BILLING CODE 7020-02-P