[Federal Register Volume 77, Number 13 (Friday, January 20, 2012)]
[Notices]
[Pages 3001-3002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1028]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-487 (Second Remand)]


Certain Agricultural Vehicles and Components Thereof Final 
Determination; Reinstatement of General Exclusion Order and Cease and 
Desist Orders; Termination of the Investigation

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined that there is a violation of section 337 of 
the Tariff Act of 1930, as amended (19 U.S.C. 1337), by respondents 
Bourdeau Bros., Inc., Sunova Implement Co., and OK Enterprises in the 
above-captioned remand investigation. The Commission has reinstated the 
general exclusion order with respect to subject self-propelled forage 
harvesters and the cease and desist orders against Bourdeau and OK 
Enterprises and certain other firms that it had issued in the original 
investigation, and has terminated the investigation.

FOR FURTHER INFORMATION CONTACT: Mark B. Rees, Office of the General 
Counsel, U.S. International Trade Commission, 500 E Street SW., 
Washington, DC 20436, telephone (202) 205-3116. 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 (202) 205-2000. 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 (202) 
205-1810.

SUPPLEMENTARY INFORMATION: The remand of this investigation involves 
the gray market claims of Deere & Co. (``Deere'') that Bourdeau Bros., 
Inc., Sunova Implement Co., and OK Enterprises (collectively, ``the 
Bourdeau respondents'') violated section 337 of the Tariff Act of 1930 
in the importation into the United States, the sale for importation, 
and the sale within the

[[Page 3002]]

United States after importation of Deere's European version (``EV'') 
self-propelled forage harvesters (``SPFHs'') by reason of infringement 
of U.S. Registered Trademarks Nos. 1,254,339; 1,502,103; 1,503,576; 
91,860; and 2,729,766. In the original investigation, the Commission 
determined that there was a violation of section 337 and issued, in 
relevant part, a general exclusion order covering EVSPFHs and cease and 
desist orders directed to certain of the Bourdeau respondents and other 
respondents.
    On appeal to the United States Court of Appeals for the Federal 
Circuit, the Court vacated the determination of violation against the 
Bourdeau respondents and remanded for findings on whether domestic 
sales of EVSPFHs by official Deere dealers were authorized by Deere and 
whether all or substantially all of the SPFH's authorized by Deere for 
sale in the domestic market were of its North American version (``NA'') 
SPFHs. Bourdeau Bros., Inc. v. Int'l Trade Comm'n, 444 F.3d 1317 (Fed. 
Cir. 2006).
    Following receipt of the mandate, the Commission rescinded its 
remedial orders with respect to EVSPFHs and referred the investigation 
to the original presiding administrative law judge (``ALJ''). The ALJ 
considered and denied cross-motions for summary determination on the 
remanded issues, conducted an evidentiary hearing, and issued an 
initial determination on remand (``RID'') of violation of section 337. 
The Bourdeau respondents petitioned for review. The Commission 
determined to review the ALJ's summary determination order and the RID. 
Based on additional rounds of briefing and its review of the entire 
record, the Commission issued a final determination that there was no 
violation of section 337. The Commission found that Deere failed to 
prove that sales of EVSPFHs in the United States by its official 
dealers were not authorized and also failed to prove that substantially 
all of the authorized sales of Deere SPFHs in the United States were 
NASPFHs.
    Deere appealed. On appeal, the Court vacated and remanded for 
further proceedings. Deere & Co. v. Int'l Trade Comm'n, 605 F.3d 1350 
(Fed. Cir. 2010). The Court upheld the Commission's consideration of 
official Deere dealer sales and found that substantial evidence 
supported the determination that sales of EVSPFHs in the United States 
by official U.S. and European Deere dealers were authorized. Id. at 
1355-58. The Court further ruled, however, that the Commission 
misapplied the ``all or substantially all'' test by using the wrong 
denominator and taking into consideration the ratio of authorized sales 
of EVSPFHs to the total number of EVSPFHs sold in the United States. 
Id. at 1358-62. The Court remanded for consideration, based on its 
instructions, of whether Deere satisfied the requirement that 
substantially all of its SPFH sales in the United States were of 
NASPFHs. Id. at 1362. The Court's mandate, issued July 19, 2010, was 
received by the Commission on July 23, 2010.
    On October 14, 2010, the Commission requested briefing by the 
parties on the merits of the remand. Deere and the Bourdeau respondents 
completed briefing on December 10, 2010.
    Based on the record of this investigation, including the Court's 
instructions on remand and the parties' briefing on remand, the 
Commission determined that Deere has established that substantially all 
of its U.S. SPFH sales were of NASPFHs and therefore has met its burden 
of proof on remand to satisfy the ``all or substantially all'' test for 
gray market trademark infringement and, accordingly, is entitled to a 
determination of violation of section 337 and the reinstatement of the 
exclusion order and cease and desist orders with respect to EVSPFHs 
issued by the Commission in the original investigation.
    The Commission has terminated the investigation in accordance with 
the above findings on remand. 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 Part 210 of the Commission's Rules of 
Practice and Procedure (19 CFR part 210).

    Issued: January 13, 2012.

    By order of the Commission.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2012-1028 Filed 1-19-12; 8:45 am]
BILLING CODE 7020-02-P