In the Matter of: Certain Hydraulic Excavators and Components Thereof General Exclusion Order, 4051-4052 [E9-1092]

Agencies

• INTERNATIONAL TRADE COMMISSION

[Federal Register Volume 74, Number 13 (Thursday, January 22, 2009)]
[Notices]
[Pages 4051-4052]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-1092]


=======================================================================
-----------------------------------------------------------------------

INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-582]


In the Matter of: Certain Hydraulic Excavators and Components 
Thereof General Exclusion Order

    The Commission has determined that there is a violation of section 
337 of the Tariff Act of 1930 (19 U.S.C. 1337) based on the unlawful 
importation and sale of certain hydraulic excavators that infringe 
United States Trademark Registration Nos. 2,140,606; 2,241,077; 
2,140,605 and 2,448,848, which cover the ``CAT'' and ``Caterpillar'' 
marks.
    Having reviewed the record in this investigation, including the 
written submissions of the parties, the Commission has made its 
determination on the issues of remedy, the public interest, and 
bonding. The Commission has determined that a general exclusion from 
entry for consumption is necessary because there is a pattern of 
violation of section 337 and it is difficult to identify the source of 
the infringing products. Accordingly, the Commission has determined to 
issue a general exclusion order prohibiting the unlicensed importation 
of infringing gray market hydraulic excavators bearing the trademarks 
at issue.
    The Commission has further determined that the public interest 
factors enumerated in 19 U.S.C. 1337(d) do not preclude issuance of the 
general exclusion order, and that the bond during the Presidential 
review period shall be in the amount of 100 percent of the entered 
value of the articles in question.
    Accordingly, the Commission hereby orders that:

[[Page 4052]]

    (1) Hydraulic excavators manufactured by or under authority of 
Caterpillar Inc. for sale and use outside the North America Commercial 
Division (United States and Canada) which (a) bear one or more of the 
following U.S. Trademark Reg. Nos. 2,140,605; 2,140,606; 2,421,077; and 
2,448,848 and (b) are materially different from hydraulic excavators 
manufactured by or under authority of Caterpillar Inc. for sale and use 
in the United States, are excluded from entry for consumption into the 
United States, entry for consumption from a foreign-trade zone, or 
withdrawal from warehouse for consumption, except if imported by, under 
license from, or with the permission of the trademark owner, or as 
provided by law, until such date as the trademarks are abandoned, 
canceled, or rendered invalid or unenforceable. This paragraph shall 
apply to hydraulic excavators exported, shipped, sold, purchased, or 
imported by any and all persons, including authorized Caterpillar 
dealers.
    (2) Notwithstanding paragraph 1 of this Order, the aforesaid 
hydraulic excavators excludable under paragraph 1 of this Order are 
entitled to entry into the United States for consumption, entry for 
consumption from a foreign trade zone, or withdrawal from a warehouse 
for consumption, under bond in the amount of 100 percent of entered 
value pursuant to subsection (j) of section 337 of the Tariff Act of 
1930, as amended (19 U.S.C. 1337(j)), and the Presidential memorandum 
for the United States Trade Representative of July 21, 2005 (70 FR 
43251) from the day after this Order is received by the United States 
Trade Representative until such time as the United States Trade 
Representative notifies the Commission that this Order is approved or 
disapproved but, in any event, not later than 60 days after the date of 
receipt of this Order.
    (3) In accordance with 19 U.S.C. 1337(l), the provisions of this 
Order shall not apply to hydraulic excavators bearing the asserted 
trademarks that are imported by and for the use of the United States, 
or imported for, and to be used for, the United States with the 
authorization or consent of the Government.
    (4) Complainant Caterpillar Inc. shall file a written statement 
with the Commission, made under oath, each year on the anniversary of 
the issuance of this Order stating whether Caterpillar Inc. continues 
to use each of the aforesaid trademarks in commerce in the United 
States in connection with hydraulic excavators, whether any of the 
aforesaid trademarks has been abandoned, canceled, or rendered invalid 
or unenforceable, and whether Caterpillar Inc. continues to satisfy the 
economic requirements of section 337(a)(2).
    (5) The Commission may modify this Order in accordance with the 
procedures described in section 210.76 of the Commission's Rules of 
Practice and Procedure (19 CFR 210.76).
    (6) The Secretary shall serve copies of this Order upon each party 
of record in this investigation and upon the Department of Health and 
Human Services, the Department of Justice, the Federal Trade 
Commission, and the U.S. Customs and Border Protection.
    (7) Notice of this Order shall be published in the Federal 
Register.
    (8) At the discretion of U.S. Customs and Border Protection 
(``CBP'') and pursuant to procedures it establishes, persons seeking to 
import hydraulic excavators that are potentially subject to this Order 
may be required to certify that they are familiar with the terms of 
this Order, that they have made appropriate inquiry, and thereupon 
state that, to the best of their knowledge and belief, the products 
being imported are not excluded from entry under paragraphs 1 through 7 
of this Order. At its discretion, Customs may require persons who have 
provided the certification described in this paragraph to furnish such 
records or analyses as are necessary to substantiate the certification.

    By Order of the Commission.

    Issued: January 14, 2009.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E9-1092 Filed 1-21-09; 8:45 am]
BILLING CODE 7020-02-P