E9-30952. 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 ...

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 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 [phone]. 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 [phone]. 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 [phone].

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. § 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 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.