[Federal Register Volume 87, Number 184 (Friday, September 23, 2022)]
[Notices]
[Pages 58130-58132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20610]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-1232 (Remand)]


Certain Chocolate Milk Powder and Packaging Thereof; Commission 
Decision Not To Review an Initial Determination Granting Motion for 
Summary Determination of Violation of Section 337; Schedule for Filing 
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 (``Commission'') has determined not to review an initial 
determination (``ID'') (Order No. 27) of the presiding chief 
administrative law judge (``CALJ''), granting summary determination on 
violation of section 337 and including a recommended determination 
(``RD'') on remedy and bonding. The Commission requests

[[Page 58131]]

briefing from the parties, interested government agencies, and 
interested persons on the issues of remedy, the public interest, and 
bonding.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-2532. 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 
[email protected]. 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, telephone (202) 205-1810.

SUPPLEMENTARY INFORMATION: On December 1, 2020, the Commission 
instituted this investigation based on a complaint filed by Meenaxi 
Enterprise Inc. of Edison, New Jersey (``Meenaxi''). 85 FR 77237 (Dec. 
1, 2020). The complaint, as supplemented, alleges violations of section 
337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, due to the 
importation into the United States, sale for importation, or sale in 
the United States after importation of certain chocolate milk powder 
and packaging thereof that purportedly infringe U.S. Trademark 
Registration No. 4,206,026 (``the '026 mark''). Id. The complaint also 
alleges the existence of a domestic industry. Id. The notice of 
investigation names twenty-one respondents: Bharat Bazar Inc. of Union 
City, California (``Bharat Bazar''); Madras Group Inc. d/b/a Madras 
Groceries of Sunnyvale, California; Organic Food d/b/a Namaste Plaza 
Indian Super Market of Fremont, California (``Organic Food''); India 
Cash & Carry of Sunnyvale California; New India Bazar Inc. d/b/a New 
India Bazar of San Jose, California (``New India''); Aapka Big Bazar of 
Jersey City, New Jersey; Siya Cash & Carry Inc. d/b/a Siya Cash & Carry 
of Newark, New Jersey; JFK Indian Grocery LLC d/b/a D-Mart Super Market 
of Jersey City, New Jersey; Trinethra Indian Super Markets of Newark, 
California; Apna Bazar Cash & Carry Inc. d/b/a Apna Bazar Cash & Carry 
of Edison, New Jersey; Subzi Mandi Cash & Carry Inc. d/b/a Mandi Cash & 
Carry of Piscataway, New Jersey; Patidar Cash & Carry Inc. d/b/a 
Patidar Cash & Carry of South Plainfield, New Jersey; Keemat Grocers of 
Sugarland, Texas; KGF World Food Warehouse Inc. d/b/a World Food Mart 
of Houston, Texas; Telfair Spices of Sugarland Texas; Indian Groceries 
and Spices Inc. d/b/a iShopIndia.com of Milwaukee, Wisconsin; Rani 
Foods LP d/b/a Rani's World Foods of Houston, Texas; Tathastu Trading 
LLC of South Plainfield, New Jersey; and Choice Trading LLC of 
Guttenberg, New Jersey. Id. The Office of Unfair Import Investigation 
(``OUII'') was named as a party. Id.
    On February 10, 2021, the CALJ issued an ID (Order No. 6) finding 
all respondents in default. OUII supported the motion. On March 2, 
2021, the Commission issued a notice determining not to review Order 
No. 6.
    On May 24, 2021, Meenaxi moved for a summary determination of 
violation by all of the respondents, each of whom had previously been 
found in default. On June 16, 2021, OUII responded in support of the 
motion. On December 1, 2021, the CALJ granted the motion as an ID 
(Order No. 15). No petitions for review of the ID were filed. The ID, 
however, 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. 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. Notice at 3 (Jan 18, 2022). The Commission 
remanded the investigation to the CALJ for further proceedings. Id.
    On remand, the CALJ assigned this investigation to himself. He 
later 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 of San Diego, California 
(``Organic Ingredients''); (ii) correct the address of respondent New 
India Bazar Inc. d/b/a New India Bazar (``New India'') of San Jose, 
California; (iii) correct the address of respondent Bharat Bazar Inc. 
of Union City, California (``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, 87 FR 22, 940 (Apr. 18, 2020). Meenaxi demonstrated 
that Bharat Bazar had been actually 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.'' 
Order No. 18 at 4.
    The CALJ conducted remand proceedings as to Organic Ingredients and 
New India, first ordering them to respond to the amended complaint and 
notice of investigation, and then ordering them to respond to an order 
to show cause why they should not be found in default. See Order No. 27 
at 3 (Aug. 3, 2022). On May 19, 2022, the CALJ issued an initial 
determination finding Organic Ingredients and New India in default. 
Order No. 23 (May 19, 2022), unreviewed by Notice at 2 (June 14, 2022).
    On June 15, 2022, Meenaxi filed a second motion for summary 
determination of violation of section 337 as to the defaulting 
respondents, and requesting the issuance of a general exclusion order. 
On July 6, 2022, OUII responded in support of Meenaxi.
    On August 23, 2022, the CALJ issued the subject ID (Order No. 27) 
granting Meenaxi's motion. The ID adopts substantially all of the 
findings from Order No. 15. In particular, the ID finds, inter alia, 
that Meenaxi owns the '026 Mark, that the '026 Mark is valid, that the 
respondents import or sell after importation products that bear the 
'026 Mark, that the respondents infringe the '026 Mark, and that the 
technical prong and economic prong of the domestic industry requirement 
have been satisfied.\1\ Order No. 27 at 4 (citing Order No. 15 at 12-
29). The ID also finds that Organic Ingredients and New India have sold 
the infringing products after importation into the United States and 
that these respondents infringe the '026 Mark by selling these 
products. ID at 9-10. As to remedy, the RD finds that there is a 
widespread pattern of unauthorized use of the asserted patents and that 
a general exclusion order is necessary to prevent circumvention. Order 
No. 27 at 18 (citing Order No. 15 at 29-33). The RD recommends a bond 
rate of one hundred (100%) because complete pricing information and 
royalty information is not available. Order No. 27 at 19 (citing Order 
No. 15 at 34-35).
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    \1\ To the extent the ID finds that quality control investments 
as a category can never be counted for the economic prong of the 
domestic industry requirement, see Order No. 15 at 27, Commissioners 
Schmidtlein and Karpel do not join that finding. Any such 
disagreement, however, is not outcome determinative in this 
investigation.
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    No petitions for review of the ID were filed.

[[Page 58132]]

    The Commission has determined not to review the ID.
    In connection with the final disposition of this investigation, the 
statute authorizes issuance of: (1) an exclusion order that could 
result in the exclusion of the subject articles from entry into the 
United States, and/or (2) one or more cease and desist orders 
(``CDOs'') that could result in 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 Certain Devices for Connecting Computers via Telephone Lines, Inv. 
No. 337-TA-360, USITC Pub. No. 2843, Comm'n Op. at 7-10 (December 
1994).
    The statute requires the Commission to consider the effects of any 
remedy upon the public interest. The public interest factors the 
Commission will consider include the effect that an exclusion order 
and/or CDO 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, 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 this investigation, interested 
government agencies, and any other interested parties are invited to 
file written submissions on the issues of remedy, the public interest, 
and bonding. Such submissions should include views on the RD by the 
CALJ on remedy and bonding.
    In its initial written submissions, Meenaxi is also requested to 
identify the remedy sought and Meenaxi and OUII are also requested to 
submit proposed remedial orders for the Commission's consideration. 
Meenaxi is further requested to provide the HTSUS subheadings under 
which the subject articles are imported and to supply identification 
information for all known importers of the subject articles.
    Initial written submissions, including proposed remedial orders, 
must be filed no later than close of business on October 3, 2022. Reply 
submissions must be filed no later than the close of business on 
October 10, 2022. 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) 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. A redacted 
non-confidential version of the document must also be filed 
simultaneously with 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 non-confidential written submissions will be available for public 
inspection at the Office of the Secretary and on EDIS.
    The Commission vote for these determinations took place on 
September 19, 2022.
    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: September 19, 2022.
Katherine Hiner,
Acting Secretary to the Commission.
[FR Doc. 2022-20610 Filed 9-22-22; 8:45 am]
BILLING CODE 7020-02-P