[Federal Register: July 8, 2003 (Volume 68, Number 130)]
[Notices]
[Page 40684]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy03-85]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-486]
In the Matter of Certain Agricultural Tractors, Lawn Tractors,
Riding Lawnmowers, and Components Thereof; Notice of Commission
Issuance of Limited Exclusion Order and Termination of Investigation
AGENCY: International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has issued a limited exclusion order and terminated the
above-captioned investigation.
FOR FURTHER INFORMATION CONTACT: Clara Kuehn, Esq., Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 205-3012. Copies of the
ALJ's ID and all other 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) 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 202-205-1810.
SUPPLEMENTARY INFORMATION: The Commission instituted this investigation
on February 10, 2003, based on a complaint and motion for temporary
relief filed by New Holland North America, Inc. (``complainant'') of
New Holland, PA. 68 FR 6772 (Feb. 10, 2003). The complaint alleged
violations of section 337 of the Tariff Act of 1930 in the importation
into the United States, sale for importation, and sale within the
United States after importation of certain tractors and components
thereof by reason of infringement of New Holland's trade dress. The
notice of investigation identified three respondents: Beiqi Futian
Automobile Co., Ltd. (``Futian'') of Beijing, China; Cove Equipment,
Inc. (``Cove'') of Conyers, Georgia; and Northwest Products, Inc.
(``Northwest'') of Auburn, Washington. Id. On March 19, 2003, the
presiding administrative law judge (``ALJ'') issued an initial
determination (``ID'') (Order No. 6) finding respondent Futian in
default. On March 31, 2003, the ALJ issued an ID (Order No. 8) amending
the complaint and notice of investigation to clarify the identity of
Cove and to add Brian Navalinsky of Conyers, Georgia as an additional
respondent. On April 1, 2003, the ALJ issued an ID (Order No. 9)
terminating respondents Cove and Navalinsky on the basis of a consent
order. Those IDs were not reviewed by the Commission.
On April 2, 2003, complainant filed a declaration pursuant to
section 337(g)(1) and Commission rule 210.16(c)(1) seeking immediate
entry of permanent default relief against respondent Futian. In the
declaration, complainant stated that it sought a limited exclusion
order directed to all accused agricultural tractors, lawn tractors, and
riding lawn mowers and components thereof made or imported into the
United States by or for respondent Futian or any affiliated company,
and that it also sought a cease and desist order directed to respondent
Futian and its U.S. affiliates or agents. Complainant further stated
that it did not seek a general exclusion order.
On April 8, 2003, the ALJ issued an ID (Order No. 10) terminating
the investigation as to respondent Northwest based on a consent order.
In his ID, the ALJ noted that all respondents in the investigation had
been found to be in default or had reached settlements with
complainant. He stated that ``[i]f the Commission adopts [the ID] or
otherwise terminates the investigation as to Northwest and also
terminates the investigation as to the other respondents, no respondent
will remain in this investigation. Therefore, any outstanding motions
(including Complainant's Motion for temporary relief) will be moot, and
this investigation will be terminated in its entirety.'' Order No. 10
at 5. No petitions for review of the ID were filed. On May 2, 2003, the
Commission issued a notice stating that the Commission had determined
not to review the ALJ's ID and requesting briefing on the issues of
remedy, the public interest, and bonding. 68 FR 23,497.
On May 16, 2003, the Commission investigative attorney (``IA'')
submitted his brief on remedy, the public interest, and bonding. On the
same day, complainant requested that the Commission consider
complainant's April 2, 2003, declaration seeking immediate entry of
default relief as complainant's submission on the issues of remedy, the
public interest, and bonding. On May 23, 2003, complainant and the IA
filed reply briefs. On May 27, 2003, complainant filed a motion for
leave to file a sur-reply in response to the IA's reply submission. On
May 29, 2003, the IA filed a motion for leave to comment on
complainant's reply submission. No briefs were filed by any other
person or government agency.
The Commission determined to grant the motions for leave. The
Commission found that each of the statutory requirements of section
337(g)(1)(A)-(E), 19 U.S.C. 1337(g)(1)(A)-(E), has been met with
respect to defaulting respondent Futian. Accordingly, pursuant to
section 337(g)(l), 19 U.S.C. 1337(g)(l), and Commission rule 210.16(c),
19 CFR 210.16(c), the Commission presumed the facts alleged in the
complaint to be true. The Commission determined that the appropriate
form of relief in this investigation is a limited exclusion order
prohibiting the unlicensed entry of agricultural tractors, lawn
tractors, riding lawnmowers, and components thereof that infringe New
Holland's trade dress as described in the complaint that are
manufactured abroad by or on behalf of, or imported by or on behalf of,
Futian. The Commission declined to infer that the defaulting foreign
respondent Futian maintains commercially significant inventory in the
United States and, consequently, determined not to issue a cease and
desist order. The Commission further determined that the public
interest factors enumerated in section 337(g)(1), 19 U.S.C. 1337(g)(1),
do not preclude issuance of the limited exclusion order. Finally, the
Commission determined that the bond under the limited exclusion order
during the Presidential review period shall be in the amount of 100
percent of the entered value of the imported articles.
This action is taken under the authority of section 337 of the
Tariff Act of 1930, 19 U.S.C. 1337, and section 210.16(c) of the
Commission's rules of practice and procedure, 19 CFR 210.16(c).
By order of the Commission.
Issued: July 1, 2003.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 03-17194 Filed 7-7-03; 8:45 am]
BILLING CODE 7020-02-P