Justia International Trade Opinion Summaries

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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

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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

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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

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In 2017, the International Trade Commission issued a final affirmative determination that a U.S. domestic industry was materially injured by virtue of imported steel goods (carbon and alloy steel cut-to-length plate ) sold at less than fair value. Hitachi, a Japanese producer and U.S. importer of the product appealed, challenging the Commission’s “domestic like product” determination, 19 U.S.C. 1677(10). The Court of International Trade and the Federal Circuit affirmed the Commission’s “domestic like product” determination as supported by substantial evidence and otherwise not contrary to law. The Commission satisfied its obligation to conduct “investigative activities” under 19 CFR 207.20(b). In response to the supplemental questionnaires it issued at Hitachi’s request, the Commission received data from four domestic tool steel producers. The Commission also sought out non-responding manufacturers via telephone and email and successfully collected data from several of those parties. Contrary to Hitachi’s argument that the Commission “disregarded” information from tool steel producers, the record shows that several entities Hitachi named as tool steel producers reported that they do not produce tool steel. View "Hitachi Metals, Ltd. v. United States" on Justia Law

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In 1993, the Department of Commerce determined that imports of certain lock washers from China were being sold at less than fair value and issued an antidumping duty order covering washers classifiable under subheading the Harmonized Tariff Schedule of the United States (HTSUS) subheading 7318.21.0000. In 2013, US&F, a U.S. importer of lock washers that meet the specifications of the American Railway Engineering and Maintenance-of-Way Association, requested an official scope ruling, alleging that its washers were not covered by the Order. US&F explained that Customs was allowing it to continue making entry under HSTUS 7318.21.0090 in anticipation of the scope determination. Without initiating a scope inquiry, Commerce ruled that US&F’s washers are within the Order's scope and instructed Customs to suspend liquidation of “all unliquidated entries of merchandise made on or after the first day merchandise subject to the Order was suspended for antidumping purposes and collect cash deposits on all such entries.” Liquidation was suspended to October 1993, when the Order was issued and the first day Customs originally suspended liquidation of the subject merchandise. The Trade Court affirmed Commerce’s scope ruling but reversed Commerce’s retroactivity determination. On remand, Commerce issued new instructions to suspend liquidation on or after July 2013, when Commerce issued the final scope ruling regarding US&F’s washers. The Federal Circuit affirmed. Substantial evidence supports Commerce’s scope ruling but Commerce exceeded its regulatory authority by ordering the retroactive suspension of liquidation back to 1993 View "United Steel & Fasteners, Inc. v. United States" on Justia Law

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The Department of Commerce investigated (19 U.S.C. 1673−1673h) dumping of multilayered wood flooring from China and individually investigated the dumping margins of the three largest exporters. Commerce identified “separate-rate firms,” exporters and producers whose dumping margins were not individually investigated but that Commerce found to be independent of the Chinese government and concluded those firms should be assigned an antidumping-duty rate separate from the “China-wide rate” assigned to firms lacking such independence. Some separate-rate firms did not seek individual review, while voluntary-review firms requested review but were denied. Commerce issued an antidumping duty order but did not terminate the investigation, finding a non-de minimis positive dumping margin for the companies that were part of the China-wide entity. All three individually-investigated firms had zero dumping margins; Commerce freed those firms from further obligations. Commerce applied the zero rate to the separate-rate firms but did not free those firms from obligations accompanying the order. Although such firms’ merchandise initially would not be subject to cash deposits upon entry, the merchandise would remain subject to suspension of liquidation of entries, with the ultimate duty to be determined later; the firms would have to participate and the duty might increase, thereafter requiring cash deposits.The Trade Court and Federal Circuit affirmed the inclusion of the “no request” separate-rate firms in the order but held that Commerce had not justified the inclusion of the voluntary-review firms. Nothing in the statute unambiguously provides that all separate-rate firms, including those not individually investigated, must be excluded from all obligations under an antidumping duty order when they are assigned a zero rate based on zero or de minimis dumping margins of individually investigated firms. View "Changzhou Hawd Flooring Co. v. United States" on Justia Law

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Chamberlain's patent discloses improved “movable barrier operators,” such as garage door openers. The patent describes a need for “a passive infrared detector for controlling illumination from a garage door operator which could be quickly and easily retrofitted to existing garage door operators” and discloses as its invention “a passive infrared detector for a garage door operator,” contained in a wall control unit, along with an ambient light comparator and a microcontroller. The International Trade Commission determined, 19 U.S.C. 1337, that the Appellants’ importation of garage door opener products infringed the patent and entered limited exclusion orders and cease and desist orders. The Federal Circuit vacated the orders, concluding that the Commission erred in its construction of “wall console,” a term in each of the patent claims. Although claim terms are normally given their ordinary and customary meaning, as understood by persons of ordinary skill in the art in view of the specification and prosecution history, Chamberlain disavowed coverage of wall consoles without a passive infrared detector. The term is properly construed as a “wall-mounted control unit including a passive infrared detector.” The parties agree that the Appellants do not infringe the patent under that construction. View "Techtronic Industries Co. Ltd. v. International Trade Commission" on Justia Law

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Ericsson owns patents essential to practicing standards (SEPs) that enable mobile devices from different manufacturers and different networks to communicate with each other using the same communication protocol. Ericsson is a member of the European Telecommunications Standards Institute (ETSI), the organization responsible for developing 2G, 3G, and 4G standards. ETSI’s acceptance of a member’s patent as "SEP" forms a contract between ETSI and its members. SEP owners wield significant power over implementers during licensing negotiations, so the ETSI contract imposes an obligation to license (FRAND obligation). Ericsson and TCL have been negotiating licensing terms for over a decade. There was litigation. The parties agreed to binding court adjudication of terms for a worldwide portfolio license. The district court imposed a prospective FRAND royalty rate for practicing each standard, and a “release payment” computed based on a closely related, retrospective FRAND rate for “TCL’s past unlicensed sales.” The court rejected both parties’ proposed methodologies and employed its own modified version of TCL’s proposed “top-down” approach in combination with comparable license evidence to compute both the prospective and retrospective FRAND rates. The Federal Circuit vacated in part. Ericsson had a Seventh Amendment right to a jury trial on the adjudication of the “release payment” term; the release payment is in substance compensatory relief for TCL’s past patent infringing activity. View "TCL Communication Technology Holdings Ltc. v. Telefonaktiebolaget LM Ericsson" on Justia Law

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The Generalized System of Preferences (GSP) provides “duty-free treatment” for “eligible article[s] from . . . beneficiary developing countr[ies],” 19 U.S.C. 2461 (2012), including India. Congressional authorization for the GSP expired on July 31, 2013, and was not renewed until June 29, 2015. For GSP-eligible entries made during the lapse, Congress provided for “retroactive application” (a refund of duties paid), if the importer filed a request with Customs “not later than” December 28, 2015. Industrial made 65 entries of organic chemicals from India between August 2013 and October 2014. The entries were liquidated between June 2014 and September 2015. Industrial did not submit its request for retroactive GSP treatment until February 2, 2016. U.S. Customs and Border Protection denied the request. Industrial filed a Protest, which was denied as untimely under 19 U.S.C. 1514 because it had been filed more than 180 days after the liquidation of its entries. The Court of International Trade dismissed Industrial’s complaint. The Federal Circuit affirmed. The Trade Court lacked jurisdiction under 28 U.S.C. 1581(a) because the Protest was invalid. The court further noted that Customs did not have the discretion to exempt Industrial Chemicals from the deadline set by Congress. View "Industrial Chemicals, Inc. v. United States" on Justia Law

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In 2014, the Department of Commerce initiated an antidumping-duty investigation under 19 U.S.C. 1673–1673h into steel nail products from Oman and other countries. Commerce separated the Omani investigation into its own proceeding and designated OF a mandatory respondent. On Commerce’s initial questionnaire OF noted that its volume of sales in Oman, and in each third country that it operated in, was less than five percent of its U.S. sales and could not be the basis for the normal value calculation. Commerce determined that there was insufficient data to support the use of the preferred method, calculated a “constructed value” of the nails under the statute, and imposed an anti-dumping duty on OF. OF challenged: Commerce’s initial choice of method; Commerce’s selection of certain information as an input into the calculation required by the chosen method; and Commerce’s conclusion that it could not calculate a “cap” limiting the profit component of the constructed value. The Federal Circuit rejected OF’s challenge to the basic choice of method and the profit-cap ruling. The court partly rejected the challenge to Commerce’s information selection when applying the chosen method but remanded to secure further explanation about Commerce’s refusal to consider the effect of subsidies on whether the information it selected was accurate for the relevant statutory purpose. View "Mid Continent Steel & Wire, Inc. v. United States" on Justia Law