[Federal Register Volume 70, Number 160 (Friday, August 19, 2005)]
[Notices]
[Pages 48777-48778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16426]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-486 Enforcement Proceedings]


Certain Agricultural Tractors, Lawn Tractors, Riding Lawnmowers, 
and Components Thereof; Notice of a Commission Determination To Review 
and on Review To Modify an Enforcement Initial Determination; 
Termination of Proceedings

AGENCY: International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part an enforcement initial 
determination (EID) of the presiding administrative law judge (ALJ) in 
the above-captioned investigation finding a violation of a limited 
exclusion order, but declining to recommend any enforcement measures. 
On review, the Commission has determined to modify the ID by correcting 
the ALJ's finding that the Commission intended to foreclose the 
possibility of issuing a general exclusion order as a remedy in the 
above-captioned proceedings when it denied complainant's petition for 
modification of the existing limited exclusion order. The Commission 
has determined not to review the reminder of the EID.

FOR FURTHER INFORMATION CONTACT: Michael K. Haldenstein, Esq., 
telephone 202-205-3041, Office of the General Counsel, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436. Copies of 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. 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-ON-LINE) at http://edis.usitc.gov. Hearing-impaired persons are 
advised that information on the matter can be obtained by contacting 
the Commission's TDD terminal on 202-205-1810.

SUPPLEMENTARY INFORMATION: On July 3, 2003, at the conclusion of Inv. 
No. 337-TA-486, Certain Agricultural Tractors, the Commission issued a 
limited exclusion order which denies entry to

[[Page 48778]]

tractors manufactured by a single Chinese entity, respondent Beiqi 
Futian Automobile Co., Ltd. (Futian), that infringe the trade dress of 
complainant New Holland North America. On August 2, 2004, New Holland 
filed a single document styled ``Consolidated Enforcement Complaint and 
Petition for Modification,'' in which it requested both enforcement and 
modification of the existing limited exclusion order by replacing the 
limited exclusion order with a general exclusion order. On November 15, 
2004, the Commission ordered the institution of a formal enforcement 
proceeding to determine whether Futian (now known as Beiqi Foton Motor 
Co., Ltd.) and Shandong Worldbest Shantou Co., Ltd., an allegedly 
related entity, (collectively, ``the enforcement respondents'') were in 
violation of the limited exclusion order, and what if any enforcement 
measures were appropriate. The Commission found that the petition for 
modification proceedings to obtain a general exclusion order failed to 
satisfy Commission rule 210.76(a) in that the complainant did not 
provide an argument concerning the legal basis for the broad 
modification sought. Thus, the Commission did not institute 
modification proceedings.
    The Commission assigned the enforcement proceedings to the ALJ who 
conducted the original investigation concerning violation. The 
Commission subsequently set a target date of November 21, 2005, for 
completion of the investigation in light of VastFame et al. v USITC, 
386 F.3d 1108 (Fed. Cir. 2004), which holds that the Commission's 
authority for conducting enforcement proceedings is found in 19 U.S.C. 
1337(b), a provision which requires the Commission to set a target date 
for completion of its investigations within 45 days of institution.
    On February 4, 2005, the ALJ issued an ID finding the two 
enforcement respondents in default, and pursuant to Commission Rule 
210.16(b)(3), to have waived their right to appear, be served with 
documents, or contest the allegations in the enforcement complaint. The 
Commission declined to review the ID and it became the final 
determination of the Commission.
    On May 13, 2005, the ALJ issued an EID finding that the existing 
limited exclusion order had been violated by the enforcement 
respondents, but recommending against any enforcement measures by the 
Commission because: (1) He believed the Commission did not intend for 
him to issue a general exclusion order; (2) New Holland had failed to 
meet the statutory criteria for a general exclusion order in default 
investigations because it had not established a violation of section 
337 by substantial, reliable, and probative evidence as required by 19 
U.S.C. 1337(g)(2)(A); and (3) New Holland did not seek any enforcement 
measures other than a general exclusion order.
    The Commission has determined to review and modify the EID to the 
extent that the Commission does not adopt the ALJ's conclusion that the 
Commission did not intend for him to issue a general exclusion order 
when it instituted these proceedings. Rather, the Commission determined 
only to deny New Holland's petition for modification. The Commission 
adopts the EID's finding that New Holland failed to meet the statutory 
criteria for a general exclusion order because it did not established a 
violation of its trade dress by substantial, reliable, and probative 
evidence as required by section 337(g)(2)(A). The Commission agrees 
with the ALJ that no other enforcement measures are appropriate because 
New Holland did not seek any enforcement measure other than a general 
exclusion order.
    This action is taken under the authority of section 337 of the 
Tariff Act of 1930, as amended (19 U.S.C. 1337), and section 210.42 of 
the Commission's Rules of Practice and Procedure (19 CFR 210.42).

    By order of the Commission.

    Issued: August 15, 2005.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 05-16426 Filed 8-18-05; 8:45 am]
BILLING CODE 7020-02-P