Justia International Trade Opinion Summaries

In 2005, the Department of Commerce imposed antidumping duties on wooden bedroom furniture from China. In 2008, acting under 19 U.S.C. 1675(a), Commerce initiated its third administrative review of the duties, covering 2007 imports. Commerce published its preliminary results in 2009. As authorized by statute in the case of China, Commerce sought to estimate production costs by using surrogate values from a comparable market economy. In its preliminary results, Commerce determined the value for wood inputs into the furniture, including lumber, by using data from the Philippines National Statistics Office. Commerce relied on financial statements from five Philippine companies to determine values for overhead, for selling, general, and administrative expenses, and for profit. Yihua, a Chinese company that manufactures wooden furniture imported into the U.S., challenged Commerce’s reliance on the NSO’s volume-based data and on certain financial statements. In its Final Results, Commerce agreed with Yihua on one issue but not the other. Interested parties brought six separate challenges in the Court of International Trade, which sustained the latest results. The Federal Circuit reversed the Trade Court’s decision to require the use of volume-based data in valuing the lumber inputs, affirmed the exclusion of certain financial statements, and remanded.View "Lifestyle Enter, Inc. v. United States" on Justia Law

In 2009, the Department of Commerce initiated administrative review of an antidumping duty order, issuing questionnaires to Mueller, an exporter, which purchased most of its subject merchandise from TUNA and Ternium, and to TUNA and Ternium. Although Mueller cooperated in the review, Mueller did not possess all of the necessary production cost information. TUNA’s review was rescinded because there were no direct shipments, and Ternium opted not to participate in its own margin calculation. As a result, Commerce drew an adverse inference against Ternium (19 U.S.C. 1677e(b)), assigning an adverse facts available (AFA) dumping margin of 48.33 percent. Commerce identified the three sales transactions between TUNA and Mueller made at the greatest discount, where Mueller’s acquisition cost was the furthest below TUNA’s production cost, then inferred that all Ternium pipe that was sold to Mueller involved that discount for acquisition cost. Although there were other sales that were not discounted as significantly, Commerce did not use that data in calculating a new weighted average dumping rate for Mueller of 19.81 percent. Mueller filed suit, alleging that Commerce’s application of Ternium’s AFA to its calculation of the margin for Mueller, despite Mueller’s cooperation, was improper, and that Commerce should have calculated production costs using the entire TUNA data set. The Trade Court affirmed. The Federal Circuit vacated. While Commerce from drawing adverse inferences against a non-cooperating party that have collateral consequences for a cooperating party, in this case Commerce drew two adverse inferences and there is no direct adverse effect on Ternium from using an adverse inference as facts otherwise available in computing Mueller’s dumping margin. View "Mueller Comercial de Mexico v. United States" on Justia Law

Deckers imports Teva® Sports Sandals from Hong Kong. The sandals at issue do not have fully-enclosed uppers, but have rubber or plastic soles and cloth or textile straps; the toe and heel sections are open, and the upper sections do not fully enclose the foot. The Sports Sandals are intended to be used for athletic pursuits, such as running, jogging, hiking, canyoneering, and a variety of water-based activities. U.S. Customs and Border Protection Service liquidated the sandals under subheading 6404.19.35, of the Harmonized Tariff Schedule of the U.S. as: Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of textile material: Footwear with outer soles of rubber or plastics: Subheading 6404.19.35 is a “basket” provision for classification if merchandise cannot be classified under a more specific subheading in heading 6404. Products so classified are subject to a duty of 37.5% ad valorem. Deckers filed a protest, requesting that the Sport Sandals be classified as either 6404.11.80, or 6404.11.90, which included “sports footwear; tennis shoes, basketball shoes, gym shoes, training shoes and the like.” Deckers brought a test case before the Court of International Trade, which held that the Sports Sandals should be classified under subheading 6404.19.35. The Federal Circuit affirmed. The Trade Court declined to reopen; the Federal Circuit affirmed.View "Deckers Corp. v. United States" on Justia Law

The Department of Commerce initiated a CVD investigation, 19 U.S.C. 1671(a), on multi-layered wood flooring from China in response to a petition from domestic producers, limiting its individual examination to companies accounting for the largest volume of imports, and selected Fine Furniture as a mandatory respondent. Commerce sent out questionnaires to analyze an allegation that the government of China subsidized the respondents’ electricity costs. Among other things, Commerce sought draft provincial price proposals for 2006 and 2008 for each province in which the mandatory respondents were located. Fine Furniture provided all of the requested information, while the government of China did not. Commerce determined that the government of China’s decision not to provide information about how electricity rates were determined for each province in which mandatory respondents were located was a failure to cooperate to the best of its ability. Accordingly, Commerce applied an adverse inference to find that the Electricity Program provided a financial contribution specific to the identified respondents. Commerce also applied adverse inferences to determine the benchmark price for electricity. The Court of International Trade held that Commerce did not apply adverse inferences against Fine Furniture, but applied adverse inferences as its method for determining the information requested from, but not provided by, the government of China. The Federal Circuit affirmed. View "Fine Furniture Ltd. v. United States" on Justia Law

Following a request from ICP, U.S. Customs and Border Protection issued New York Ruling Letter D86228 classifying ICP’s white sauce as “sauces and preparations therefor” under the Harmonized Tariff Schedule of the United States (HTSUS) 2103.90.9060 Years later, Customs issued a notice of action reclassifying all pending and future entries of white sauce as “[b]utter and ... dairy spreads” under HTSUS 0405.20.3000, which increased the tariff by about 2400%. After protesting and paying duties on a single entry, ICP filed a claim in the Court of International Trade, alleging that the notice of action improperly revoked the Ruling Letter without following procedures required by 19 U.S.C. 1625(c). The court ordered Customs to reliquidate the merchandise under the “[s]auces and preparations therefor” heading required by the Ruling Letter. The Federal Circuit affirmed. View "Int'l Custom Prods. v. United States" on Justia Law

In 2009, the U.S. Department of Commerce initiated the Fifth Administrative Review of the Antidumping Duty Order covering TPBI’s polyethylene retail carrier bags imported from Thailand during the 2008–2009 review period, 19 U.S.C. 1673. Commerce calculated the normal value of TPBI’s merchandise based on a constructed value, having determined that the sales in the exporting country of the foreign like product had been made at prices below the cost of production. Commerce found that TPBI’s methodology did not reasonably reflect actual costs because it resulted in products with few or minor physical differences being assigned significantly different costs of manufacturing. Commerce disregarded the below-cost sales. The Court of International Trade affirmed. Finding Commerce’s determinations supported by substantial evidence and in accordance with law, the Federal Circuit affirmed. View "Thai Plastic Bags Indus. Co., Ltd. v. United States" on Justia Law

Motorola and its foreign subsidiaries buy LCD panels and incorporate them into cellphones. They alleged that foreign LCD panel manufacturers violated section 1 of the Sherman Act, 15 U.S.C. 1, by fixing prices. Only about one percent of the panels were bought by Motorola in the U.S. The other 99 percent were bought by, paid for, and delivered to foreign subsidiaries; 42 percent of the panels were bought by subsidiaries and incorporated into products that were shipped to Motorola in the U.S. for resale. The other 57 percent were incorporated into products that were sold abroad and never became U.S. domestic commerce, subject to the Sherman Act. The district judge ruled that Motorola’s claim regarding the 42 percent was barred by 15 U.S.C. 6a(1)(A): the Act “shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless such conduct has a direct, substantial, and reasonably foreseeable effect on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations.” The Seventh Circuit affirmed, reasoning that rampant extraterritorial application of U.S. law “creates a serious risk of interference with a foreign nation’s ability independently to regulate its own commercial affairs.” View "Motorola Mobility LLC v. AU Optronics Corp." on Justia Law

Corning hired Hyundai, an ocean shipper, to transport thin glass sheets for use in televisions and computer monitors from the U.S. to Asia. Although it is not clear when the damage occurred, damage was noted when Hyundai unloaded the containers from flatcars operated by its subcontractors (Norfolk Southern Railway and BNSF, another rail carrier). Corning had no role in selecting and no relationship with the subcontractors. There were opinions that the damage was caused by movement of the railcars, not by packing, but the actual cause was not established. Corning’s insurer paid Corning $664,679.88 and filed suit. The district court held that the case would proceed solely under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. 11706, apparently reasoning that the damage undisputedly occurred while the cargo was in the possession of a rail carrier. The court found that a Subcontracting Clause did not immunize the rail carriers from suit, but obligated Corning to indemnify Hyundai for any resultant claims by a subcontractor against Hyundai arising out of the same facts. The court held that a $500-per-package limit of liability did not apply to the rail carriers or Hyundai. After a jury trial, the court found Hyundai and the railroads liable, but denied prejudgment interest. The Sixth Circuit affirmed the judgment against Hyundai, reversed and vacated judgments against the railroads, and remanded for reconsideration of prejudgment interest.View "CNA Ins. Co. v. Hyundai Merch. Marine Co., Ltd." on Justia Law

The Tariff Act of 1930 permits the Department of Commerce to impose two types of duties on imports that injure domestic industries: antidumping duties on goods sold in the U.S. "at less than ... fair value,” 19 U.S.C. 1673 and countervailing duties on goods that receive “a countervailable subsidy” from a foreign government, 1671(a). Commerce has long collected both types of duties from market economy importers. In 2012, Congress enacted legislation that overruled the Federal Circuit’s 2011 decision, GPXI, and permitted imposition of both antidumping and countervailing duties with respect to importers from non-market economy (NME) countries. Because this law is retroactive and does not require Commerce to adjust for any double counting that may result from the retroactive imposition of both countervailing and antidumping duties, Wireking, an importer affected by the change, claimed that it violated the Ex Post Facto Clause of Article I, Section 9 of the U.S. Constitution. The Court of International Trade upheld the new law. The Federal Circuit affirmed. Wireking did not show that the absence of a retrospective double-counting provision negates the law’s predominantly remedial impact. The 2012 law is not punitive and does not violate the Ex Post Facto Clause. View "Guangdong Wireking Housewares v. United States" on Justia Law

In 2005, the Department of Commerce issued an antidumping duty order on wooden bedroom furniture from China; importers who were not individually investigated are required to post a deposit at a country-wide rate of 216.01%. Marvin, a Chinese furniture producer and exporter, did not export subject merchandise during the investigation period. In 2011, Marvin requested new shipper review to obtain an individual rate and avoid the country-wide rate. Based on U.S. Customs and Border Protection data, Commerce determined that Marvin’s exports had entered the U.S. in 2010. Marvin explained that the entries contained only non-subject merchandise samples for a trade show with no offers for sale. Commerce accepted Marvin’s explanation and initiated new shipper review covering Marvin’s exports entered from January 1 through June 30, 2011. Marvin later submitted information that the 2010 entries included some subject merchandise, entered for consumption, contrary to its initial request. In 2012, Commerce preliminarily rescinded Marvin’s new shipper review. Marvin argued harmless and unintentional error that did not affect new shipper review eligibility. Commerce finalized the rescission, citing19 C.F.R. 351.214(b)(2)(iv)(A) and (B). The Trade Court affirmed, holding that 19 U.S.C. 1677m, which allows a party to correct filings, was inapplicable because Marvin’s request for a new shipper review was not filed in “response to a request for information” under the statute. The Federal Circuit affirmed. View "Marvin Furniture Co., Ltd. v. United States" on Justia Law