Justia International Trade Opinion Summaries

In 2015, AK Steel filed a petition with the Department of Commerce, seeking an antidumping duty investigation, 19 U.S.C. 1673, covering corrosion-resistant steel products (CORE) from Taiwan. Commerce instituted an investigation and selected as mandatory respondents the two largest exporters of CORE from Taiwan, Prosperity and Yieh. Those entities disclosed that they were affiliated with a third company, Synn. Commerce decided to “collapse” all three entities The purpose of collapsing multiple entities into a single entity is to prevent affiliated entities from circumventing antidumping duties by “channel[ing] production of subject merchandise through the affiliate with the lowest potential dumping margin.” Under 19 C.F.R. 351.401(f) the entities must be “affiliated” and must have “production facilities for similar or identical products that would not require substantial retooling of either facility in order to restructure manufacturing priorities”; and Commerce must find “a significant potential for the manipulation of price or production.” Commerce found significant potential for manipulation between Prosperity and Synn.The Federal Circuit vacated Commerce's decision. Commerce acted contrary to law when it collapsed Prosperity, Yieh, and Synn without considering section 351.401(f)'s factors as between the relationships of Prosperity and Yieh or between Prosperity and Yieh/Synn. Commerce must consider the “totality of the circumstances” between all entities. View "Prosperity Tieh Enterprise Co., Ltd. v. United States" on Justia Law

U.S. Customs and Border Protection classified Apple’s iPad 2 Smart Cover model number MC939LL/A, under Harmonized Tariff Schedule of the United States (HTSUS) Subheading 6307.90.98, covering “Other made up articles, including dress patterns: Other” at a duty rate of 7 percent. Apple argued that the Smart Cover is properly classified under HTSUS Subheading 8473.30.51, covering “Parts and accessories (other than covers, carrying cases and the like) suitable for use solely or principally with machines of headings 8469 to 8472: Parts and accessories of the machines of heading 8471: Other,” duty-free.The government argued that Apple’s subject merchandise is properly classified under HTSUS Subheading 3926.90.99, covering “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other,” at a duty rate of 5.3 percent ad valorem. The Federal Circuit affirmed the Trade Court’s ruling in favor of the government. Apple’s Smart Cover is composed of various materials including “microfiber lining” and a “plastic outer layer” and otherwise unclassifiable composite goods must be “classified as if they consisted of the material or component which gives them their essential character. The Smart Cover’s plastic outer layer provides its essential character. View "Apple Inc. v. United States" on Justia Law

In 2012, the Department of Commerce issued an antidumping duty order on crystalline silicon photovoltaic cells from China. In 2015, Commerce initiated the first administrative review of this antidumping duty order. Domestic and foreign producers each challenged aspects of Commerce’s 2016 Final Results under 19 U.S.C 1516a(a)(2). After remands, the Trade Court sustained Commerce’s determinations of dumping margins of 6.55% for Trina, 0% for Yingli, and 8.52% for BYD. The Federal Circuit vacated with respect to Commerce’s selection of Thailand as “the primary surrogate country” under 19 C.F.R. 351.408, as necessary to determine “normal price” for a non-market economy country, and calculation of a surrogate value for Trina’s nitrogen input using Thai import data published by the Global Trade Atlas. The court affirmed with respect to Commerce’s decision to use zero-quantity data; use of Thai HTS subheadings 3920.62 and 3920.10 to value Trina’s and Yingli’s backsheets; and remand to Commerce to further justify or reconsider its use of Thai GTA data to value Yingli’s tempered glass input. View "SolarWorld Americas, Inc. v. United States" on Justia Law

SolarWorld filed an antidumping duty petition concerning certain photovoltaic products imported from China. After two remands, the Trade Court affirmed rulings by the Department of Commerce selecting Harmonized Tariff Schedule Heading 7604 for valuation of the aluminum frame inputs to the photovoltaic modules and offsetting the antidumping duty cash deposit rate to account for export subsidies. The Federal Circuit affirmed. Commerce’s use of subheading 7604.29.65 to value the aluminum frames is supported by substantial evidence. Commerce’s offset practice is reasonable under the statutory plan because it fosters consistency in investigations and administrative reviews. The practice balances the dumping margin against deterrence, lowers the combined antidumping/countervailing cash deposit rate, and avoids the inequity of double application of duty. View "Jinko Solar Co., Ltd. v. United States" on Justia Law

In 1994, the Department of Commerce imposed anti-dumping duties on fresh garlic from China. Harmoni, a producer and exporter of fresh garlic from China, requested individual review. New Mexico Garlic Growers Coalition (NMGGC) requested review of Harmoni. NMGGC’s representative subsequently alleged that Harmoni and another had engaged in a strategy that enabled Harmoni to escape administrative review to receive a zero dumping margin and a zero cash deposit rate.In 2016, Commerce initiated the 21st administrative review. Harmoni withdrew its requests for review, leaving only NMGGC’s pending request. Commerce found that NMGGC and its individual members were domestic producers of fresh garlic, having standing to request review of Harmoni. Commerce preliminarily determined that Harmoni was not eligible for a separate rate and should be considered to be part of the China-wide entity, finding that Harmoni had withheld information, failed to meet deadlines, and significantly impeded the proceeding. After receiving allegations of fraud by NMGGC’s former representative and holding a hearing, Commerce stated that additional evidence “undermined the veracity of all of the NMGGC’s submissions,” so that its request for review of Harmoni was “illegitimate.” Harmoni was not subject to review in AR 21. The Trade Court and Federal Circuit upheld Commerce’s final results and partial rescission of the administrative review. By its own misconduct, NMGGC disqualified itself from obtaining a review of Harmoni under 19 C.F.R. 351.213(b)(1). View "New Mexico Garlic Growers Coalition v. United States" on Justia Law

ICCS imported 56,616 individual butane gas canisters into the U.S. that displayed a “PREMIUM” brand label and a registered certification mark owned by Underwriters Laboratories (UL). Customs determined that the canisters were “counterfeit” in that they made unauthorized use of the UL certification mark and issued a notice ordering ICCS to redeliver the imported canisters to Customs’ custody pursuant to 19 U.S.C. 1526(e). ICCS redelivered only 29,008 canisters. UL did not consent to retroactive certification. Customs assessed damages of $41,412.00.The Trade Court granted the government summary judgment. The Federal Circuit affirmed. The canisters displayed UL’s mark without UL’s approval. ICCS’s arguments as to physical similarities between the PREMIUM model and other merchandise that UL had previously certified fail because the Service Terms dictate that UL, not ICCS, determines whether any differences from the basic product are superficial. On the date of entry, Customs had no way of ascertaining whether the PREMIUM model was the same physical product as the basic product without UL having made that determination. The court rejected an argument that, in denying ICCS’s protest, Customs relied on UL’s lack of consent to the point of delegating its statutory duty to enforce the trademark laws to UL. View "ICCS USA Corp. v. United States" on Justia Law

The International Trade Commission (ITC) investigated a complaint under Tariff Act Section 337, alleging that Comcast’s customers directly infringe patents by using Comcast’s X1 system. The patents claim an interactive television program guide system for remote access to television programs. An ALJ found a violation, concluding that the X1 set-top boxes are imported by ARRIS and Technicolor and that Comcast is sufficiently involved with the design, manufacture, and importation of the products, such that it is an importer under Section 337. The ITC affirmed, stating that Comcast induced infringement and that Comcast "instructs, directs, or advises its customers on how to carry out direct infringement.” The ITC affirmed that ARRIS and Technicolor do not directly infringe because they do not provide a “remote access device” as required by the claims and do not contributorily infringe because the set-top boxes have substantial non-infringing uses. The ITC issued a limited exclusion order and cease and desist orders directed to Comcast. The Federal Circuit affirmed, rejecting Comcast’s arguments that its conduct is not actionable under Section 337 because Comcast’s inducing conduct “takes place entirely domestically, well after, and unrelated to," the importation and that Comcast does not itself import the articles. The ITC has authority (19 U.S.C. 1337(d)(1)) to issue an exclusion order that blocks the importation of articles manufactured and imported by ARRIS and Technicolor, despite its determination that they did not violate Section 337 and did not infringe the patents. View "Comcast Corp. v. International Trade Commission" on Justia Law

The Department Commerce investigated antidumping duty petitions concerning imports of certain oil country tubular goods from various countries, including Vietnam. Commerce issued quantity and value questionnaires to the eight companies named in the petition but received timely responses from only two—one of which was SeAH. Commerce selected SeAH and the other responsive company as mandatory respondents, 19 U.S.C. 1677f-1(c)(2) Because Commerce considers Vietnam to be a non-market economy country, Commerce selected a surrogate market economy country, India, to provide surrogate values. Commerce calculated a 24.22% dumping margin for SeAH, based on various surrogate values. The Court of International Trade remanded to Commerce twice, for reconsideration and further explanation of its surrogate value determinations. On remand, Commerce calculated a 61.04% dumping margin for SeAH. The Court sustained Commerce’s Final Determination, as amended.The Federal Circuit affirmed in part and reversed in part. Commerce’s selection for surrogate financial ratios (Bhushan) is supported by substantial evidence; Bhushan, unlike the other available options, produced identical merchandise to SeAH and Bhushan has financial statements that are publicly available and contemporaneous. Substantial evidence supports commerce’s determination that SeAH’s freight forwarder contract included domestic inland insurance separate from transportation costs. Commerce’s allocation methodology for brokerage and handling was not supported by substantial evidence. View "SeAH Steel VINA Corp. v. United States" on Justia Law

Acetris obtains its pharmaceutical products from Aurolife, which makes them in a New Jersey facility, using an active pharmaceutical ingredient made in India. Acetris had contracts to supply the VA with several pharmaceutical products, including Entecavir (used to treat hepatitis B). The VA requested that Acetris recertify its compliance with the Trade Agreements Act of 1979 (TAA), which bars the VA from purchasing “products of” certain foreign countries, such as India. Ultimately, the VA requested that Acetris obtain a country-of-origin determination. Customs concluded that the Acetris products were products of India. Acetris agreed to cancel its Entecavir contract. The VA issued a new solicitation seeking proposals for Entecavir, indicating that it would continue to rely on the Customs determination. Acetris filed suit, challenging the VA’s interpretation of the TAA. The VA awarded the Entecavir contract to Golden, consistent with its policy to award contracts to the lowest-price technically acceptable bid. The government moved to dismiss the suit, arguing that Acetris lacked standing because Acetris would not have won the contract regardless of the interpretation of the TAA and that Acetris’ earlier-filed Court of International Trade suits divested the Claims Court of jurisdiction under 28 U.S.C. 1500.The Claims Court denied the government’s motions and rejected the government’s interpretation of the TAA. The Federal Circuit affirmed in part, holding that the suit is justiciable and agreeing with the Claims Court. The court remanded for the entry of a declaratory judgment and injunction. View "Acetris Health, LLC v. United States" on Justia Law

The Department of Commerce initiated an antidumping duty investigation and determined that xanthan gum imported from China was sold in the U.S. at less than fair value. Commerce considers China to be a non-market economy country and must “determine the normal value of the subject merchandise on the basis of the value of the factors of production utilized in producing the merchandise . . . . based on the best available information regarding the values of such factors in a market economy country,” 19 U.S.C. 1677b(c)(1). Commerce values factors of production by utilizing “prices or costs of factors of production” from a market economy country.” Commerce chose Thailand as the primary surrogate country for the investigation. In determining Fufeng's duty, Commerce did not value X. Campestris as a factor of production or a direct material input because Fufeng’s costs associated with the maintenance and use of X. Campestris bacteria are similar to those of Thai Ajinomoto’s costs associated with maintaining the bacteria used to produce comparable merchandise (MSG and l-lysine). Commerce found that Fufeng acquired an X. Campestris strain for payment-in-full before the period of investigation, including the right to further grow and exploit the resulting bacteria for the production of xanthan gum. The Trade Court and Federal Circuit upheld the treatment of Xanthomonas as an asset rather than a direct material input. View "CP Kelco US, Inc. v. United States" on Justia Law