[Federal Register Volume 73, Number 164 (Friday, August 22, 2008)]
[Notices]
[Pages 49705-49706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19571]


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INTERNATIONAL TRADE COMMISSION

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


In the Matter of Certain Agricultural Vehicles and Components 
Thereof; Notice of Commission Determination To Reverse a Remand Initial 
Determination of the Administrative Law Judge That Section 337 Has Been 
Violated; Termination of 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 to reverse the presiding administrative law 
judge's finding of violation of section 337 of the Tariff Act, as 
amended, on remand and has terminated the investigation.

FOR FURTHER INFORMATION CONTACT: Jonathan J. Engler, Esq., Office of 
the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 205-3112. The public version 
of the ALJ's final 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-ON-LINE) 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 13, 2003, based on a complaint filed by Deere & Company 
(``Deere'') of Moline, Illinois. 68 FR 7388 (February 13, 2003). The 
complaint, as supplemented, 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 agricultural vehicles and components thereof by reason of 
infringement and dilution of U.S. Registered Trademarks Nos. 1,254,339; 
1,502,576; 1,503,576, and 91,860.
    Twenty-four respondents were named in the Commission's notice of 
investigation. Most of the respondents were terminated from the 
investigation on the basis of consent orders, or found in default. The 
remaining respondents, Erntetechnik Franz Becker; Sunova Implement 
Company; Bourdeau Bros., Inc. and OK Enterprises (collectively, ``the 
Bourdeau respondents''); Fitzpatrick Farms; Stanley Farms; J&T Farms; 
and Co-Ag LLC (collectively, ``the Fitzpatrick Farms respondents''); 
and Agrideal participated in the investigation. On January 13, 2004, 
the ALJ issued his final initial determination (``ID'') finding a 
violation of section 337. He also recommended the issuance of remedial 
orders. The Bourdeau respondents and Fitzpatrick Farms respondents 
petitioned for review of the ID.
    On March 30, 2004, the Commission determined not to review the ID. 
The Commission then issued a general exclusion order directed to Deere 
European-version self propelled forage harvesters, two limited 
exclusion orders directed to Deere European-version telehandlers, and 
various cease and desist orders, on May 14, 2004.
    The Bourdeau respondents appealed the Commission's final 
determination to the U.S. Court of Appeals for the Federal Circuit (the 
``Federal Circuit''). On March 30, 2006, the Federal Circuit vacated 
and remanded the Commission's final determination as it related to 
Deere European-version self-propelled forage harvesters (``EVSPFHs''). 
Bourdeau Bros. v. International Trade Commission, 444 F.3d 1317 (Fed. 
Cir. 2006).
    On June 20, 2006, the Commission rescinded the general exclusion 
order and certain cease and desist orders, and remanded the 
investigation to the presiding ALJ for proceedings consistent with the 
Federal Circuit's decision in Bourdeau. On August 18, 2006, the ALJ 
issued Order No. 55, denying complainant's and respondents' motions for 
summary determination. The ALJ issued his final ID on remand (``Remand 
ID'') on December 20, 2006. He found that Deere did not authorize the 
sale of Deere European-version self-propelled forage harvesters in the 
United States and that all or substantially all of the Deere self-
propelled forage harvesters sold in the United States were North 
American versions. In further briefing before the Commission, the 
respondents claimed error.
    On February 20, 2007, the Commission determined to review in part 
Order No. 55 and the Remand ID. The Commission requested briefing by 
the parties (1) On the standard for authorization that was applied in 
Order No. 55 and how that standard was applied in light of the burden 
of proof;

[[Page 49706]]

(2) on the issue of Deere's alleged financing of certain EVSPFHs; (3) 
with respect to the ALJ's application of the ``all or substantially 
all'' standard, including a statement of the type and number of sales 
relied on and the basis for reliance on those sales, especially the 
basis for including used sales of North American-version harvesters in 
the assessment of whether that standard has been met by Deere; and (4) 
on whether all or substantially all of Deere's sales of SPFHs were of 
North American versions of these machines.
    On March 13, 2008, the Commission asked the parties to discuss (1) 
The total quantity of new and used EVSPFHs sold by John Deere's 
official European dealers to the United States from 1997 through 2002, 
including (a) all European dealer sales for importation to the United 
States for which there is documentary evidence in the existing record 
and (b) an estimate of the total quantum of additional European dealer 
sales for importation to the United States for which there may not be 
documentary evidence on this record; (2) an exclusively legal 
discussion of the relevance of the agency doctrines of actual and 
apparent authority in the context of gray market sales in the United 
States; and (3) whether, if the Commission were to take into account 
only sales of gray market EVSPFHs by U.S. dealers (i.e. sales within 
the United States after importation), and not sales for importation of 
gray market goods by John Deere's European dealers, it would in effect 
improperly limit the scope of the unlawful activities that it is 
required to consider under the statute, which includes within the 
Commission's jurisdiction ``the sale for importation'' as well as ``the 
sale within the United States after importation'' of articles that 
infringe a valid United States trademark. 19 U.S.C. Section 
1337(a)(1)(C).
    Written submissions were received by the parties on April 15 and 
April 24, 2008. On April 30, the parties each filed reply submissions.
    Having considered the record and briefing in this investigation, 
the Commission has determined to reverse the ALJ's finding of 
violation. A Commission Opinion in support of its determinations will 
follow shortly.
    The authority for this notice is contained in section 337 of the 
Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in section 
210.45(c) of the Commission's Rules of Practice and Procedure (19 CFR 
210.45(c)).

    By order of the Commission.

    Issued: August 12, 2008.
Marilyn R. Abbott,
Secretary to the Commission.
 [FR Doc. E8-19571 Filed 8-21-08; 8:45 am]
BILLING CODE 7020-02-P