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

Topics:  Lucid

Lisa Barton
International Trade Commission
16 June 2020

[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temporarily rescinded.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 
EDIS3Help@usitc.gov. 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