[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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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