Justia International Trade Opinion Summaries

Articles Posted in Government & Administrative Law
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Ford imported automotive goods and paid duties. Ford later claimed North American Free Trade Agreement (NAFTA) preference on those imports and sought a refund of duties under 19 U.S.C. 1520(d). The parties relied on a June 1997 entry as a test case. Ford was required to file certificates of origin within one year of importation, but did not file the certificate until November 1998 and was unable to secure a written waiver. Customs denied Ford’s claim, then denied Ford’s protest. The Federal Circuit rejected Ford’s argument that Customs had an affirmative obligation under its regulations to accept Ford’s untimely filing, but remanded for determination of whether traditional refund claims, not processed through the electronic “reconciliation” program, should enjoy the same waiver benefit available through that program. On remand, Customs explained that the reconciliation program (19 U.S.C. 1484(b)) is a procedural means for processing import entries, including an ability to claim the substantive duty refund benefit under section 1520(d), and has statutory safeguards that permit Customs to remedy mistakes and misconduct in awarding NAFTA duty free treatment. Many reconciliation program safeguards are not available in the traditional post-entry duty refund process. The reconciliation program provides added confidence in the legitimacy of the importer’s claims. The Federal Circuit affirmed that Customs’ interpretation of the statutory scheme was reasonable. View "Ford Motor Co. v. United States" on Justia Law

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In 2006, the Department of Commerce announced that it was changing a method it used to calculate whether imported goods are being sold in the United States at less than fair value, i.e., being dumped. Previously, Commerce employed “zeroing” in that calculation: for goods sold above fair value, Commerce treated the sale price as being at (rather than above) fair value—it zeroed out margins above fair value and permitted no offset against below-fair-value sales in calculation of the average, resulting in larger average dumping margins than if offsetting had been allowed. The new policy generally made it more difficult to find dumping. Commerce stated that the change would apply “in all current and future antidumping investigations as of the effective date” and that it would apply the final modification to all investigations pending as of the effective date. There were seven such investigations, all initiated by petitions filed after March 6, 2006, when the new no-zeroing policy was proposed. Two companies found to have engaged in dumping argued that their cases were governed by the new policy. The Federal Circuit upheld Commerce’s determination that they were not. Commerce spoke ambiguously on timing in adopting its new policy and reasonably resolved the ambiguity to exclude the cases. View "Diamond Sawblades Mfr. Coal. v. United States" on Justia Law

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Best, a Hong Kong manufacturer, produces Metalized Yarn from polyester chips melted with metal nanopowders to form monofilament yarns. Best sought a pre-importation ruling concerning proper tariff classification in the Harmonized Tariff Schedule (HTSUS), attaching a laboratory report describing the yarn as having a fiber content of 100% polyester, with 0.7%- 0.74% metal by weight. Customs classified the yarn as metalized yarn, HTSUS 5605.00.90, dutiable at 13.2%, stating “yarn combined with metal in the form of powder is considered a metalized yarn.” Best then sought a ruing regarding a “Johnny Collar” garment made of its yarn, asserting the garment was classifiable under HTSUS 6105.90.8030 as a shirt of other textile materials (duty rate 5.6%), not HTSUS 6110.30.3053 for polyester shirts (duty rate 32%). Based on trace amounts of metal and a label that stated “100% polyester,” Customs classified the sample as man-made non-metalized fibers under HTSUS 6110.30.3053. Customs subsequently revoked the Yarn Ruling, reclassifying the yarn as a polyester yarn under HTSUS 5402.47.90 (duty rate 8%). Customs also revoked the Johnny Collar Ruling as conflicting with the Yarn Ruling, but continued to classify the garment under 6110.30.30. Best challenged the Yarn Ruling Revocation, but not the Johnny Collar revocation. The Trade Court sustained the Revocation. The Federal Circuit vacated with instructions to dismiss for lack of jurisdiction. Best sought reversal of a Revocation, the effect of which would be to increase Best ’s own duty rate while benefiting manufacturers of products made from its yarn. The statute does not provide jurisdiction over such requests View "Best Key Textiles Co., Ltd. v. United States" on Justia Law

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In 1997, the U.S. Department of Commerce determined, under 19 U.S.C. 1673b, that freshwater crawfish tail meat from China was being sold in the U.S. at less than fair value and directed Customs to suspend final computation of duties on such entries and to require a deposit or bond to cover estimated duties. In 2000-2001, New Phoenix made entries of the product. The exporters were subject to “new shipper” review to determine whether they were entitled to antidumping-duty rates distinct from the default rate. Each of five bonds issued by Great American to cover anticipated duties was for $1,219,458 and was signed by Davis and accepted by the government, although the power-of-attorney filed with Customs indicated a limit of $1 million on his authority. Great American later revoked his authority. In 2003, Commerce published final results, finding that the exporter was not entitled to a different rate and sought payment from New Phoenix and Great American. The amount owed is greater than the amounts of the bonds. The trial court granted the government summary judgment, without pre- and post-judgment interest, finding that the government did not timely address those issues. The Federal Circuit affirmed that the bonds were not enforceable beyond Davis’s stated authority and the denial of pre-judgment interest View "United States v. Great Am. Ins. Co" on Justia Law

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Itochu asked the U.S. Department of Commerce to act under 19 U.S.C. 1675(b) to revoke part of an antidumping-duty order applicable to imported steel nails. Before Commerce issued its preliminary determination, Itochu submitted comments and provided legal authority to urge that the requested partial revocation take effect at an early specified date. Commerce rejected that position in its preliminary ruling and generally invited interested parties to comment. Itochu did not avail itself of that opportunity. In its final ruling, Commerce adopted the partial revocation, which the domestic industry did not oppose, but with the later effective date. When Itochu challenged the effective-date determination, the U.S.s Court of International Trade declined to address the merits, citing failure to exhaust administrative remedies, 28 U.S.C. 2637(d), because Itochu had failed to resubmit, after the preliminary ruling, the comments it had submitted earlier. The Federal Circuit reversed, stating that in these circumstances, requiring exhaustion served no discernible practical purpose and resulting delay would have risked harm to Itochu. View "Itochu Bldg. Prods. v. United States" on Justia Law

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The government appealed the district court's order which altered the terms of a bond the Coast Guard had fixed for the release of a detained ship that was under investigation and restricted the types of penalties the government could seek for the ship's potential violations of certain ocean pollution prevention statutes. The ship at issue, the Pappadakis, an ocean-going bulk cargo carrier carrying a shipment of coal to Brazil, was detained by the Coast Guard because the vessel had likely been discharging bilge water overboard. The court reversed and remanded for dismissal under Federal Rule of Civil Procedure 12(b)(1) where the matter was not subject to review in the district court because the Coast Guard's actions were committed to agency discretion by law. Consequently, the district court lacked jurisdiction to consider the petition. View "Angelex Ltd. v. United States" on Justia Law

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Triple A, a Michigan corporation, has offices in Dearborn, Michigan, the Congo (previously known as Zaire), and Sierra Leone. In 1993, Zaire ordered military equipment worth $14,070,000 from Triple A. A South Korean manufacturer shipped the equipment to Zaire at Triple A’s request. For 17 years, Triple A sought payment from Zaire and then the Congo without success. In 2010, Triple A sued the Congo for breach of contract. The district court dismissed the case, citing lack of jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. 1602. The Sixth Circuit affirmed, citing the language of the Act, under which federal courts have jurisdiction “in any case in which the action is based upon” the following: [1] a commercial activity carried on in the United States by the foreign state; or [2] upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or [3] upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. View "Triple A Int'l, Inc. v. Democratic Republic of the Congo" on Justia Law

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This case involved the district court's order requiring the Office of the United States Trade Representative to disclose a classified document describing the government's position during international trade negotiations. The only document that remained in dispute was a white paper referred to in the district court proceedings as "document 1," which consisted of the Trade Representative's commentary on the interpretation of the phrase "in like circumstances." The court concluded that the Trade Representative properly withheld the document as exempt from disclosure under exemption 1 of the Freedom of Information Act, 5 U.S.C. 552(b)(1), because the white paper was properly classified as confidential. Accordingly, the court reversed the district court's judgment. View "Center For Int'l Env. Law v. Office of the U.S. Trade Rep., et al." on Justia Law

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This case stemmed from the Federal Motor Carrier Safety Administration's recent authorization of a pilot program that allowed Mexico-domiciled trucking companies to operate trucks throughout the United States, so long as the trucking companies complied with certain federal safety standards. Drivers Association and Teamsters contended that the pilot program was unlawful. As a preliminary matter, the court concluded that Drivers Association and Teamsters both have standing to challenge the pilot program. On the merits, the court concluded that all seven of Drivers Association's arguments and all six of Teamsters' arguments were unpersuasive. Accordingly, the court denied the petitions for review. View "International Brotherhood of Teamsters, et al. v. DOT, et al." on Justia Law

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Jensen, a licensed customs broker, filed with Customs 308 protests on behalf of importers, seeking reliquidation of 1,529 entries of softwood lumber from Canada. More than two years later, Jensen inquired about the status of the protests. After nearly two months, Customs replied that the protests had been consolidated under a “lead protest” and that a draft decision letter had been prepared, but not finalized, and suggested that Jensen contact the Port of Detroit for a list of consolidated protests. Jensen expressed concern that Port of Detroit might not possess a complete list, as some protests had been filed in other ports. Receiving no response, Jensen filed suit in the Court of International Trade to preserve appeal rights. Customs subsequently stated, via email, that pursuant to 19 C.F.R. 177.7(b), it would not issue a ruling with respect to any issue pending before the Court of International Trade. Jensen then sought a writ of mandamus to compel Customs to rule on its protests. The Court of International Trade held that it lacked jurisdiction under 28 U.S.C. 1581(i), reasoning that Jensen could seek accelerated disposition of its protests by Customs under 19 U.S.C. 1515(b) and contest any subsequent denial. The Federal Circuit affirmed.View "Norman G. Jensen, Inc. v. United States" on Justia Law