Justia International Trade Opinion Summaries

ICP imports products sold to food manufacturers, including “white sauce.” In 1998, Customs issued a Ruling Letter, classifying “white sauce” under Harmonized Tariff Schedule of the U.S. (HTSUS) 2103.90.9060 as “sauces and preparations therefor.” In 2005 Customs issued a Notice, without providing statutory notice and comment, reclassifying “white sauce” under HTSUS 0405.20.3000 as “[d]airy spreads,” effecting a tariff increase of almost 2400%. Waves of litigation followed. In 2007, Customs liquidated entries from 2003-2004 under the Notice, imposing a liability of $28 million. After Customs denied a protest, ICP unsuccessfully asked Customs for relief under 19 U.S.C. 1520(c). ICP did not ask Customs to voluntarily reliquidate under 19 U.S.C. 1501, nor seek administrative review of the protest denial, which became final and could not be suspended pending the Federal Circuit decision concerning the Notice. ICP sued without paying the $28 million owed. The Trade Court dismissed for lack of jurisdiction based on ICP’s failure to pay and for failure to state a claim. In 2014 the Federal Circuit held that the 2005 Notice was subject to the requirements in 19 U.S.C. 1625(c) and was void because Customs failed to comply. The Federal Circuit affirmed with respect to the 2003-2004 entries. To invoke Trade Court jurisdiction, an aggrieved importer must file protest under 19 U.S.C. 1514. Once Customs denies that protest, the importer must pay “all liquidated duties, charges, or exactions” owed before commencing suit,28 U.S.C. 2637. The pre-payment requirement is a valid condition attached to the government’s waiver of immunity, and ICP lacked a constitutionally protected property interest. View "Int'l Custom Prods., Inc v. United States" on Justia Law

Carbon imported three entries from China in June-July, 2007, which were subject to an antidumping duty order from the Department of Commerce covering activated carbon from China. Carbon deposited estimated antidumping duties at a rate of 67.14%. An administrative review of the order for the period from October 2006, to March 2008, began in June 2008. Commerce instructed Customs to suspend liquidation of entries imported during the review period. Nonetheless, Customs liquidated Carbon’s entries in 2008 at the rate of 67.14%. Carbon allegedly was unaware of the liquidation and did not then protest under 19 U.S.C. 1514. In November 2009, Commerce published the results of the administrative review. Several parties, including the exporter of Carbon’s entries, Hebei, challenged the results and obtained a preliminary injunction suspending liquidation. Ultimately, the Trade Court sustained a final liquidation rate of 16.35% for entries exported by Hebei, which would have applied to the three Carbon entries, had they not already been liquidated. In June 2012, Carbon first became aware that the entries had been erroneously liquidated. In September 2012, Carbon filed a protest. In October 2013, Carbon sought a refund under 28 U.S.C. 1581(i). The Trade Court found the protest untimely under the 180- day statutory deadline, that filing a timely protest in 2008 would not have been a manifestly inadequate remedy, and that section 1581(i) was not available. The Federal Circuit affirmed. View "Carbon Activated Corp. v. United States" on Justia Law

The Department of Commerce issued an antidumping duty order covering polyethylene terephthalate (PET) Film from United Arab Emirates (UAE) in 2008. JBF manufactures and exports PET Film from UAE, and, pursuant to 19 U.S.C. 1675(a)(1), in 2011, requested administrative review of the order. Commerce initiated review in December 2011, but before Commerce published its preliminary results, domestic producers filed an allegation of targeted dumping against JBF and argued Commerce should not use the average-to-average comparison method typically used in administrative reviews because that method would not account for the price differences of JBF’s merchandise, but should use an average-to-transaction method of comparison. In December 2012, Commerce published preliminary results, assigning JBF a dumping margin of 5.31% using its average-to-average comparison methodology. Commerce indicated it “did not have sufficient time to fully analyze [the targeted dumping issue] for purposes of these preliminary results” and that it would “address [the domestic producers’] targeted dumping allegation at a later date.” In March 2013, Commerce published a post-preliminary determination addressing the domestic producers’ allegation of targeted dumping. Using an average-to-transaction comparison methodology, Commerce determined JBF had engaged in targeted dumping and assigned a revised dumping margin of 9.80%. The Court of International Trade and Federal Circuit affirmed. View "JBF RAK LLC v. United States" on Justia Law

Following a 1996 investigation, the Department of Commerce declared that freshwater crawfish tail meat imported from China was subject to antidumping duties. In 2001, JCOF imported that product from Yangzhou, which qualified as a “new exporter” under 19 U.S.C. 1675(a)(2)(B). JCOF obtained, from AHAC , a one-year, continuous $600,000 bond, 19 U.S.C. 1675(a)(2)(B)(iii), made two entries from Yangzhou, and declared a 0% duty rate, the deposit rate then in effect for shipments by Yangzhou. Commerce conducted administrative review of 2001-2002 entries; the final results assigned Yangzhou a 223.01% rate. Customs liquidated the entries and billed JCOF, which failed to pay. Customs sought payment from AHAC, which filed protest. Another exporter challenged Commerce’s 2004 administrative review. Following dissolution of a resultant injunction, which had not applied to Yangzhou, Customs nonetheless reliquidated JCOF’s entries, issued new bills, and denied AHAC’s protest. AHAC did not appeal, but filed another protest, which was denied. Customs demanded $1,157,898.22. AHAC asserted that the collection action was moot because the erroneous reliquidations voided the previous liquidations, so that no valid liquidation occurred and the entries should be deemed liquidated under 19 U.S.C. 1504(d) at the initially-declared 0% rate. The Court of International Trade and Federal Circuit held that AHAC was obligated to pay. The reliquidations voided the original liquidations, but AHAC failed to preserve its rights by timely litigation; the reliquidations became final, “whether legal or not.” The court remanded the issues of equitable and statutory prejudgment interest. View "United States v. Am. Home Assurance Co." on Justia Law

Dobek was an engineer in charge of providing parts for F-16 fighter planes owned by the Venezuelan Air Force. The U.S. State Department announced that munitions, including parts for military aircraft, could no longer be exported to Venezuela without an export license, and revoked existing licenses. Dobek created firms to carry on business with Venezuela. The Venezuelan Air Force told Dobek that it needed canopy seals for its F-16s. Suspecting that Dobek was selling canopy seals to Venezuela, FBI agents executed a warrant at Dobek’s home, where they found a purchase order for the seals, with no purchaser named. Dobek had certified that he understood that the “products … to be provided are controlled by the … International Traffic in Arms Regulations.” He told a friend that he was looking for a box to ship “cockpit seals.” FedEx shipping records revealed that Dobek had shipped a box, labeled as “base molding,” to Venezuela after that discussion. This pattern of purchase and shipment was repeated a year later. Dobek was convicted of exporting munitions illegally, 22 U.S.C. 2778(b)(2), and conspiracy, 18 U.S.C. 371. The Seventh Circuit affirmed, rejecting challenges to the admissibility of an alleged co-conspirator’s emails, the sufficiency of the evidence, and the validity of the jury instruction on willfulness, stating that evidence of willfulness was overwhelming. View "United States v. Dobek" on Justia Law

The International Trade Commission determines whether the dumping of certain imports has materially injured or threatened material injury to the domestic industry by sending questionnaires to foreign producers and exporters, and to members of the domestic industry, seeking production and financial data. The questionnaires specifically ask the respondents whether they support, oppose, or take no position on the anti-dumping petition. The 2000 Continued Dumping and Subsidy Offset Act (CDSOA), provided for the distribution of recovered anti-dumping duties to “affected domestic producers”of the dumped goods, 19 U.S.C. 1675c. CDSOA, which defined “affected domestic producer” as a petitioner or interested party in support of the petition with respect to which an antidumping duty order entered, was repealed in 2006. The repeal was not retroactive. Schaeffler‘s challenge to CDSOA’s constitutionality under the Due Process Clause was dismissed by the Court of International Trade. The Federal Circuit affirmed, finding that the petition support requirement of CDSOA rationally related to the government’s interest in rewarding members of the domestic industry that supported anti-dumping petitions. View "Schaeffler Group USA, Inc. v. United States" on Justia Law

Standard markets kinesiotherapy devices, including models that practice claims of its 605 Patent. In 2009, Standard formed a subsidiary to distribute products in the U.S. Neither Standard nor Standard U.S. manufactures in the U.S.; Standard sources components from suppliers in the U.S. and other countries. It contracts Chinese manufacturers to assemble devices from those components for export to more than 50 countries, including the U.S. The U.S. International Trade Commission (ITC) addressed four components in its domestic industry analysis: a backbone material, a rubber, microcontrollers, and a pigment. The backbone material, rubber, pigment, and wafers used in the microcontrollers are manufactured in the U.S. Lelo, a California corporation with a Swedish majority shareholder, imports kinesiotherapy devices. Standard filed a 19 U.S.C. 1337 complaint alleging that Lelo imported kinesiotherapy devices and components that infringed its 605 Patent. The ITC concluded that statutory domestic industry requirements were satisfied upon a showing of a “significant investment in plant or equipment” and a “significant employment of labor or capital.” The Eighth Circuit reversed, holding that qualitative factors alone are insufficient. The purchase of so-called “crucial” components from third-party U.S. suppliers was insufficient to satisfy the “significant investment” or “significant employment of labor or capital” criteria absent evidence that connects the cost of the components to an increase of U.S. investment or employment. View "LELO Inc. v. Int'l Trade Comm'n" on Justia Law

The Continued Dumping and Subsidy Offset Act of 2000, 19 U.S.C. 1675c(a) (2000), (Byrd Amendment) provided for the distribution of antidumping duties collected by the United States to “affected domestic producers” of goods that are subject to an antidumping duty order and defined an “affected domestic producer” as a party that either petitioned for an antidumping duty order or was an “interested party in support of the petition.. The Byrd Amendment was repealed in 2006, but the repealing statute provided that any duties paid on goods that entered the United States before the date of repeal would continue to be distributed in accordance with the pre-repeal statutory scheme. Several ineligible domestic producers challenged the constitutionality of the Byrd Amendment, which was upheld against challenges based on the First Amendment and the equal protection component of the Fifth Amendment. The Court of International Trade rejected a challenge asserting that the retroactive application of the Byrd Amendment violates due process. The Federal Circuit affirmed, reasoning that the prior holding that the statute promoted a substantial governmental interest in a rational manner, in the context of First Amendment and equal protection analysis, applied. The constitutionality of the statute turns on the same standard. View "Pat Huval Rest. & Oyster Bar, Inc. v. Int'l Trade Comm'n" on Justia Law

In 1998, the Coalition filed a petition alleging that domestic producers of preserved mushrooms were injured by imports of preserved mushrooms from Chile, China, Indonesia, and India being sold in the U.S. at less than fair value. Giorgio accounted for approximately one half of total U.S. production, but was neither a Coalition member nor a petitioner. The International Trade Commission issued questionnaires to domestic producers, including Giorgio. Giorgio responded: “We take no position on Chile, China and Indonesia[.] We oppose the petition against India.” The Department of Commerce initiated an antidumping investigation, “on behalf of the domestic industry,” 19 U.S.C. 1673a(c)(4)(A)(i), noting that supporters of the petition accounted for over 50 percent of production of the domestic producers who expressed an opinion even if Giorgio’s position was not disregarded. Commerce found that dumping had occurred. The ITC determined that the domestic industry was materially injured; Commerce issued corresponding antidumping orders. Customs collected antidumping duties for distribution to “affected domestic producers.” Under the Byrd Amendment, an affected domestic producer “was a petitioner or interested party in support of the petition.” ITC rejected Giorgio’s request to be listed because Giorgio’s responses did not indicate support for the petition. Customs denied Giorgio’s claims for distributions. After the Federal Circuit upheld the Byrd Amendment against a facial First Amendment challenge, the Trade Court dismissed Giorgio’s suit, finding the support requirement constitutional under the standards governing commercial speech because it directly advanced the government’s substantial interest in preventing dumping. The Federal Circuit affirmed. View "Giorgio Foods, Inc. v. United States" on Justia Law

Gordon Auto Body Parts, a Taiwanese company, was one of several early entrants into the U.S. market for replacement truck hoods. PBSI eventually entered the market for certain replacement hoods but found that it could not match the prices of Gordon and other Taiwanese firms, with which Gordon had participated in joint ventures. Believing that Gordon and the other firms were conspiring to drive it out of business with predatory prices, PBSI brought antitrust claims against Gordon. The district court granted Gordon summary judgment. The Sixth Circuit affirmed, finding that PBSI failed to make any showing that Gordon’s prices were below an appropriate measure of cost. View "Superior Prod. P'shp v. Gordon Auto Body Parts Co." on Justia Law