[Federal Register Volume 85, Number 116 (Tuesday, June 16, 2020)]
[Notices]
[Page 36419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12889]
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INTERNATIONAL TRADE COMMISSION
[Investigation No. 337-TA-1088]
Certain Road Construction Machines and Components Thereof;
Commission Decision To Institute a Rescission Proceeding; Temporary
Rescission of the Seizure and Forfeiture Order; Termination of the
Rescission Proceeding
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 institute a proceeding to determine
whether to temporarily rescind the Commission's seizure and forfeiture
order (``SFO'') of January 14, 2020 (corrected January 23, 2020) issued
against Wirtgen America, Inc. (``Wirtgen America''). The SFO is
temporarily rescinded. The rescission proceeding is terminated.
FOR FURTHER INFORMATION CONTACT: Houda Morad, Office of the General
Counsel, U.S. International Trade Commission, 500 E Street SW,
Washington, DC 20436, telephone (202) 708-4716. Copies of non-
confidential documents filed in connection with this investigation may
be viewed on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. For help accessing EDIS, please email
[email protected]. General information concerning the Commission may
also be obtained by accessing its internet server at https://www.usitc.gov. The public record for this investigation may be viewed
on the Commission's electronic docket (EDIS) at https://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 November 29, 2017, based on a complaint, as supplemented, filed by
Caterpillar Inc. of Peoria, Illinois and Caterpillar Paving Products,
Inc. of Minneapolis, Minnesota (collectively, ``Caterpillar''). See 82
FR 56625-26 (Nov. 29, 2017). The complaint, as supplemented, alleges
violations of section 337 of the Tariff Act of 1930, as amended (19
U.S.C. 1337) (``section 337''), based upon the importation into the
United States, the sale for importation, and the sale within the United
States after importation of certain road construction machines and
components thereof by reason of infringement of certain claims of U.S.
Patent Nos. 7,140,693 (``the '693 patent''); 9,045,871; and 7,641,419.
See id. The notice of investigation identifies the following
respondents: Wirtgen GmbH of Windhagen, Germany; Joseph V[ouml]gele AG
of Ludwigshafen, Germany; Wirtgen Group Holding GmbH of Windhagen,
Germany; and Wirtgen America of Antioch, Tennessee (collectively,
``Wirtgen''). See id. The Office of Unfair Import Investigations is not
a party to this investigation. See id.
On June 27, 2019, the Commission found a violation of section 337
in the above-identified investigation based on the infringement of
claim 19 of the '693 patent and issued a limited exclusion order
against the infringing articles and a cease and desist order against
Wirtgen America (collectively, ``the remedial orders''). The U.S.
Customs and Border Protection (``Customs'') subsequently excluded six
Wirtgen machines in December 2019. Based on such exclusion, the
Commission issued the subject SFO on January 14, 2020 (corrected
January 23, 2020).
On January 30, 2020, Wirtgen filed a civil action against Customs
and related government parties in the Court of International Trade
(``CIT'') under 28 U.S.C. 1581(a) and (i). The Commission moved to
intervene to contest the CIT's exercise of jurisdiction, and the CIT
denied the Commission's motion. The CIT exercised jurisdiction under
section 1581(a) over Customs' objections and granted summary judgment
for Wirtgen as to the excluded machines. The CIT also ordered Customs
to release the machines for entry into the United States no later than
Thursday, May 21, 2020. Arguing that the predicate for the SFO has been
invalidated by the CIT, on May 21, 2020, Wirtgen filed an emergency
motion to stay or to temporarily rescind the SFO pending appeal of the
CIT's decision. On May 29, 2020, Caterpillar filed a response in
opposition to Wirtgen's emergency motion.
For the reasons discussed in the Commission Opinion issued
concurrently herewith, the Commission has determined to deny in part
and to grant in part Wirtgen's motion. Specifically, the Commission has
determined to deny Wirtgen's motion with respect to staying the SFO but
has determined to grant it with respect to temporarily rescinding the
SFO in order to suspend its operation. This suspension applies
prospectively to articles that arrive in the United States on or after
the date of the accompanying Order and until such time as the CIT's
decision is modified, stayed, or overturned. This suspension does not
apply to the specific entries that were at issue under 28 U.S.C.
1581(a) in the CIT civil action (which were excluded, not seized, and
released for entry into the United States), and this suspension does
not affect or modify in any way the Commission's remedial orders issued
in this investigation.
Accordingly, the Commission has determined to institute a
rescission proceeding and to temporarily rescind the SFO pending appeal
of the CIT's decision. The rescission proceeding is hereby terminated.
The Commission's vote for this determination took place on June 10,
2020.
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 part 210 of the Commission's Rules of Practice and Procedure (19 CFR
part 210).
By order of the Commission.
Issued: June 10, 2020.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2020-12889 Filed 6-15-20; 8:45 am]
BILLING CODE 7020-02-P