Harley-Davidson Motor Co

Text (OCR of the scan at left; may contain errors)

IN THE MATTER OF HARLEY-DAVIDSON MOTOR CO.

SET ASIDE ORDER IN REGARD TO ALLEGED VIOLATION OF SEC. 3 OF THE CLAYTON ACT AND THE FEDERAL TRADE COMMISSION ACT Docket 5698. Consent Order, June 29, 1954--Set Aside Order, July 11, 1995 The Federal Trade Commission has set aside a 1954 consent order with Harley- Davidson Motor Co., (50 FTC 1047), pursuant to the Commission's Sunset Policy, under which the Commission presumes, in the context of petitions to reopen and modify orders, that the public interest requires terminating competition orders that have been in effect for more than 20 years. ORDER REOPENING PROCEEDING AND SETTING ASIDE ORDER On February 8, 1995, Harley-Davidson Motor Company ("Harley-Davidson"), the respondent subject to the order issued by the Commission on June 29, 1954, in Docket No. 5698, in the matter of Harley-Davidson Co., 50 FTC 1047 (1954) ("order"), filed a Petition to Reopen Proceedings and Set Aside Cease and Desist Order ("Petition"). Among other things, Harley-Davidson requests that the Commission set aside the order in this matter pursuant to Section 2.51 of the Commission's Rules of Practice, 16 CFR 2.51, and the Statement of Policy With Respect to Duration of Competition Orders and Statement of Intention to Solicit Public Comment With Respect to Duration of Consumer Protection Orders, issued on July 22, 1994, and published at 59 Fed. Reg. 45,286-92 (Sept. 1, 1994) ("Sunset Policy Statement"). In the Petition, Harley-Davidson affirmatively states that it has not engaged in any conduct violating the terms of the order. The Petition was placed on the public record, and close to 200 comments were received. ! The Commission in its July 22, 1994, Sunset Policy Statement said, in relevant part, that "effective immediately, the Commission will presume, in the context of petitions to reopen and modify existing orders, that the public interest requires setting aside orders To accommodate numerous requests to provide additional time to prepare and submit written comments conceming Harley-Davidson's Petition, the Commission extended the initial public comment period in this matter by thirty days.

HARLEY-DAVIDSON MOTOR CO. 19 18 Set Aside Order in effect for more than twenty years."* The Commission's order in Docket No. 5698 was issued on June 29, 1954, and has been in effect for over twenty years. Consistent with the Sunset Policy Statement, the presumption is that the order should be terminated. Nothing to overcome the presumption having been presented, the Commission has determined to reopen the proceeding and set aside the order in Docket 5698.

In light of some of the commenters' belief that granting Harley- Davidson's Petition would be commensurate with allowing it to engage in conduct that may violate the antitrust laws, and their concern that Harley-Davidson may use certain marketing practices to engage in unlawful conduct in the event the Commission sets aside the order in Docket No. 5698, the Commission notes that Harley- Davidson's conduct would continue to be subject to a case-by-case, rule of reason analysis under the antitrust laws. Harley-Davidson's conduct would also continue to be subject to state motor vehicle dealer protection laws.

Accordingly, Jt is ordered, That this matter be, and it hereby is, reopened;

It is further ordered, That the Commission's order in Docket No. 5698 be, and it hereby is, set aside, as of the effective date of this order.

Sunset Policy Statement, 59 Fed. Reg. at 45289. Complaint 120 F.T.C.