[Federal Register Volume 73, Number 215 (Wednesday, November 5, 2008)]
[Notices]
[Pages 65879-65880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26319]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-582]
In the Matter of: Certain Hydraulic Excavators and Components
Thereof; Notice of Commission Decision To Review the Administrative Law
Judge's Final Initial Determination; Schedule for Written Submissions
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 review the presiding administrative law
judge's (``ALJ'') final initial determination, Order No. 67, in the
above-captioned investigation.
FOR FURTHER INFORMATION CONTACT: Jonathan Engler, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street, SW.,
Washington, DC 20436, telephone (202) 205-3112. 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: On August 29, 2006, the Commission
instituted this investigation, based on a complaint filed by
Caterpillar Inc. (``Caterpillar'') of Peoria, Illinois. The complaint
alleges violations of section 337 in the importation into the United
States, the sale for importation, and the sale within the United States
after importation of certain hydraulic excavators and components
thereof by reason of infringement of U.S. Trademark Registration No.
2,140,606, U.S. Trademark Registration No. 2,421,077, U.S. Trademark
Registration No. 2,140,605, and U.S. Trademark Registration No.
2,448,848. The complaint further alleges that an industry in the United
States exists as required by subsection (a)(2) of section 337. The
complaint named twenty one (21) firms as respondents. The complainant
requested that the Commission issue a general exclusion order and cease
and desist orders. Two respondents, Barkley Industries LLC
(``Barkley'') and Frontera Equipment Sales (``Frontera''), have been
found in default. Nineteen respondents have been terminated as a result
of settlement agreements.
On September 9, 2008, the ALJ issued an initial determination,
Order No. 67, granting Caterpillar's motion for summary determination
concerning violations of section 337. He also issued his recommended
determinations on remedy and bonding. No petitions for review of the
initial determination were filed. On October 8, 2008, the Commission
extended the date for determining whether to review the initial
determination until October 30, 2008.
The Commission has determined to review Order No. 67. The
Commission requests briefing by the parties, based on the record, on
the following questions:
1. Has Caterpillar rebutted the presumption established by the U.S.
Court of Appeals for the Federal Circuit in Bourdeau Bros., Inc. v.
International Trade Commission, 444 F.3d 1317 (Fed. Cir. 2006), that
its official U.S. dealers had apparent authority to sell gray market
hydraulic excavators in the United States? If not, could Caterpillar
rebut the presumption if given the opportunity to supplement its motion
for summary determination of no violation? For background concerning
the Commission's analytical approach in gray market cases, please refer
to the Commission Opinion in Certain Agricultural Vehicles and
Components Thereof, Inv. No. 337-TA-487 (Aug. 25, 2008).
2. Did any of Caterpillar's overseas affiliates, subsidiaries, and/
or official dealers sell gray market hydraulic excavators to or in the
United States? If so, has Caterpillar rebutted, or if given the
opportunity could Caterpillar rebut, the presumption that these dealers
had actual or apparent authority to sell these excavators in the United
States? Also, how many gray market sales were made to or in the United
States by
[[Page 65880]]
Caterpillar's overseas affiliates, subsidiaries, and official dealers?
3. Does the record indicate the total quantity of gray market sales
made in the United States from 2000 to 2006? If not, could Caterpillar
provide this information if given the opportunity to supplement its
motion for summary determination of no violation?
In connection with the final disposition of this investigation, the
Commission may issue an order that results in the exclusion of the
subject articles from entry into the United States. 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 are requested
to file written submission on the issues identified in this notice.
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. Such
submissions should address the recommended determinations on remedy and
bonding which were made by the ALJ in Order No. 67. Complainant and the
Commission investigative attorney are also requested to submit proposed
remedial orders for the Commission's consideration. Complainant is
further requested to state the HTSUS numbers under which the accused
products are imported. Written submissions and proposed remedial orders
must be filed no later than close of business on Tuesday, November 18,
2008. Reply submissions must be filed no later than the close of
business on Tuesday, November 25, 2008. 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
210.6. Documents for which confidential treatment by the Commission is
sought will be treated accordingly. All non-confidential 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).
Issued: October 30, 2008.
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E8-26319 Filed 11-4-08; 8:45 am]
BILLING CODE 7020-02-P