Justia International Trade Opinion Summaries

The Department of Commerce issued an antidumping duty order covering steel nails from Taiwan. The Federal Circuit remanded for further explanation of one aspect of the methodology Commerce had adopted to determine whether there was “a pattern of export prices . . . that differ significantly among purchasers, regions, or periods of time,” 19 U.S.C. 1677f-1(d)(1)(B)(i), The court stated that Commerce did not adequately explain why it was reasonable to use simple averaging.On remand, Commerce again used simple averaging for its version of a “Cohen’s d denominator.” The Trade Court affirmed. The Federal Circuit vacated, finding that the relevant statistical literature cited by Commerce uniformly uses weighted averaging in the Cohen’s d denominator calculation and that Commerce has not explained why the basic choice of weighted averaging of unequal-size groups fails to apply to this context. The literature nowhere suggests simple averaging for unequal-size groups. When the entire population is known, the literature points toward using the standard deviation of the entire population as the denominator in Cohen’s d—which Commerce has not done. Commerce’s job is not to follow a statistical test as explained in published literature for its own sake, but to implement the statutory mandate to determine when prices of certain groups “differ significantly.” View "Mid Continent Steel & Wire, Inc. v. United States" on Justia Law

In 1996, the Commerce Department made a preliminary determination that tomatoes were being, or were likely to be, sold in the U.S. at less than fair value. Exporters of fresh tomatoes from Mexico signed an agreement to sell their products in the U.S. at minimum “reference” prices; Commerce suspended the investigation. In 2019, Commerce withdrew from the Agreement and resumed the investigation. A new agreement suspended the investigation, set higher minimum reference prices, and described the dumping margin. Domestic tomato producers asked Commerce to continue the investigation, which it did, as required by statute. Commerce reached a final determination and calculated estimated dumping margins. An antidumping duty order has not been issued because the 2019 Agreement remains in effect. Three companies challenged Commerce’s termination of the 2013 Agreement, its continuation of the investigation, and final determination.The Trade Court dismissed, finding that claims regarding the termination of the 2013 Agreement became moot upon the execution of the 2019 Agreement, and claims regarding the final determination in the continued investigation were not ripe because before an antidumping duty order.The Federal Circuit found no plausible challenge to the termination of the 2013 Agreement. Reversing in part, the court concluded that the challenge to the final determination is justiciable under Article III. The Tariff Act of 1930 provides jurisdiction for the Trade Court to review the final determination even before an antidumping duty order has been published. View "Bioparques de Occidente, S.A. de C.V. v. United States" on Justia Law

In 1996, the Department of Commerce issued a preliminary dumping determination concerning Mexican tomatoes. Mexican exporters entered into an agreement (19 U.S.C. 1673c(c)) that suspended the investigation, terminated the collection of cash deposits or bonds, and ended the suspension of liquidation of entries. A series of agreements followed; the 2013 agreement permitted either party to withdraw from the agreement at will. In 2018, U.S.-based tomato businesses and 48 members of Congress requested that Commerce terminate the 2013 agreement and resume the antidumping investigation. Commerce resumed its investigation and re-imposed cash deposit requirements. CAADES, an association of Mexican growers, negotiated a new suspension agreement. In October 2019, Commerce issued a final affirmative determination that increased the dumping margins over those reflected in a July 2019 preliminary determination. An antidumping duty order incorporating these new rates could not issue while the 2019 agreement remained in place; an order would issue immediately if any party withdrew, The Trade Court dismissed CAADES’s ensuing lawsuit. The Federal Circuit reversed in part, first finding that it had jurisdiction over CAADES’s challenges to the government’s termination of the 2013 agreement and to the 2019 agreement. Those claims are not moot. The 2013 agreement’s termination was not invalid for failing to comply with statutory termination requirements or because of allegedly improper political influence and the 2019 agreement is not invalid on grounds of duress. CAADES’s claims that the October 2019 final antidumping determination is invalid are not premature; the Trade Court has jurisdiction to hear those claims. View "Confederacion de Asociaciones Agricolas del Estado de Sinaloa, A.C. v. United States" on Justia Law

“Red Sun Farms” is the trade name under which various entities do business as “U.S. producers of fresh tomatoes grown in the United States, U.S. importers and resellers of fresh tomatoes from Mexico, and foreign producers and exporters of fresh tomatoes from Mexico.”Red Sun filed suit against the government based on an antidumping duty investigation to determine whether fresh Mexican tomatoes were being imported into the United States and sold at less than fair value. In its motion to dismiss, the government observed, with respect to the five identified entities doing business as “Red Sun Farms,” that “[i]t is unclear whether all of these parties possess standing or can be considered real parties in interest” and reserved its right to raise additional arguments on the subject. In a discovery filing, the government noted the varying singular/plural usage by Red Sun Farms and stated that “‘Plaintiff’ Red Sun Farms actually consists of several companies.”The Federal Circuit reversed the dismissal of the suit. Red Sun challenged the Department of Commerce’s Final Determination resulting from a continued investigation under 19 U.S.C. 1516a(a)(2)(B)(iv); although no final antidumping order had been issued, its claims are not premature. Jurisdiction exists based on 28 U.S.C. 1516a(g)(3)(A)(i) and 1516a(a)(2)(B)(i). View "Red Sun Farms v. United States" on Justia Law

StarKist produces two varieties of tuna salad products, albacore and chunk light, each of which is imported as ready-to-eat pouches or lunch-to-go kits. The fish is caught in South American or international waters, frozen, delivered to a facility in Ecuador, sorted, thawed, cooked, machine chopped, then hand-folded with a prepared mixture of other ingredients including a mayo base. The tuna salad products were classified by Customs under HSTUS subheading 1604.14.10, which carries a 35% ad valorem duty, and covers: Prepared or preserved fish; caviar and caviar substitutes prepared from fish eggs: Fish, whole or in pieces, but not minced: Tunas, skipjack and bonito: Tunas and skipjack: In airtight containers: In oil.StarKist sought classification under 1604.20.05, which covers “products containing meat of crustaceans, molluscs or other aquatic invertebrates; prepared meals,” and carries a 10% ad valorem duty. In the alternative, StarKist seeks a classification under either subheading 1604.14.22, which covers tuna that is “not minced” and “not in oil,” carrying a 6% ad valorem duty, or subheading 1604.14.30, which covers “other,” carrying a 12.5% ad valorem duty.Customs denied StarKist’s protests. The Trade Court granted summary judgment in favor of the government. The Federal Circuit affirmed. The products at issue are “not minced” and are “in oil.” View "StarKist Co. v. United States" on Justia Law

The Department of Commerce initiated an administrative review of the antidumping order on oil country tubular goods from the Republic of Korea. Commerce generally compares the price at which the subject merchandise is sold in the U.S. to the “normal value,” the price of like products in the exporting country or a third country, Commerce found no“viable home market or third-country market” and calculated normal value using constructed value, 19 U.S.C. 1677b(a)(4), based on the costs of producing and selling the merchandise, allowing for profits. Commerce found five circumstances that created a “particular market situation” affecting inputs. The Court of International Trade “direct[ed] Commerce to reverse its finding of a particular market situation.”The Federal Circuit affirmed in part. Three of the five circumstances Commerce used to show a particular market situation are not supported by substantial evidence but the Trade Court lacks authority to reverse Commerce. The court vacated the opinion to the extent that it directed Commerce to reach a certain outcome. Comparing normal value to export price, Commerce relied on its “differential pricing analysis” methodology. The Federal Circuit has previously vacated aspects of Commerce’s differential pricing analysis over concerns about Commerce’s use of statistical methodologies when certain preconditions for their use are not met. Because Commerce’s analysis here raises identical concerns, the Federal Circuit vacated the Trade Court’s decision upholding the methodology. View "NEXTEEL Co., Ltd. v. United States" on Justia Law

Broadcom’s 583 patent is directed to reducing power consumption in computer systems by “gating” clock signals with circuit elements to turn the signals ON and OFF for downstream parts of the circuit; its 752 patent is directed to a memory access unit that improves upon conventional methods of requesting data located at different addresses within shared memory. Broadcom alleged violations of 19 U.S.C. 1337 based on Renesas's importation of products that allegedly infringe those patents.An ALJ held that Broadcom failed to demonstrate a violation with respect to the 583 patent, citing the technical prong of the domestic industry requirement; Broadcom failed to identify an actual domestic industry article that practices claim 25. For the 752 patent, the ALJ held that claim 5 would have been unpatentable as obvious. The International Trade Commission affirmed. In inter partes review, the Patent Trial and Appeal Board held that claims 25 and 26 of the 583 patent and claims 1, 2, 5, 7, and 8 of the 752 patent would have been obvious over prior art but that Renesas failed to demonstrate that other claims of the 583 patent would have been obvious.With respect to the 583 patent, the Federal Circuit affirmed the Board’s holding and affirmed the holding that there was no domestic industry. With respect to the 752 patent, the court affirmed the entirety of the Board’s holding. View "Broadcom Corp. v. International Trade Commission" on Justia Law

In 2015, the Federal Circuit affirmed summary judgment invalidating BriarTek’s patent claims, which BriarTek had asserted against DBN in a parallel investigation by the International Trade Commission (ITC). The court upheld the ITC’s imposition of a $6,242,500 civil penalty for DBN’s violation of a consent order, in which it agreed not to import or sell in the U.S. any two-way global satellite communication devices that infringe those claims. The court stated that the invalidation of the asserted claims did not negate DBN’s pre-invalidation violations of the consent order.DBN petitioned the ITC to rescind or modify the civil penalty order. Following a remand, the ITC again denied DBN’s petition. The ITC reassessed the relevant factors for determining civil penalties and concluded that the invalidation of the asserted claims did not change its original assessment, citing: the good or bad faith of the respondent, the injury to the complainant, respondent’s ability to pay, the extent to which respondent has benefited from its violations, the need to vindicate the ITC’s authority; and the public interest. The ITC again noted that the consent order expressly accounted for the subsequent invalidation of the patent claims. The Federal Circuit affirmed the determination as supported by substantial evidence. View "DBN Holding, Inc. v. International Trade Commission" on Justia Law

Cambodian villagers who alleged that they were trafficked into Thailand and subjected to forced labor at seafood processing factories sued under the civil remedy provision of the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. 1595. The Ninth Circuit affirmed summary judgment in favor of the defendants.Section 1596 authorizes extraterritorial application of the Act for specific criminal trafficking offenses. Even assuming that section 1595 permits a private cause of action for extraterritorial violations of section 1596's substantive provisions if other requirements are satisfied, certain defendants were not “present in the United States” at any time relevant to the lawsuit as section 1596 requires. Even if section 1596 requires foreign companies to possess nothing more than minimum contacts with the United States, the plaintiffs did not meet that standard. The record did not support either specific or general jurisdiction as a basis for finding minimum contacts. The court rejected an argument that certain defendants were present in the U.S. through an agency relationship or joint venture with a Delaware LLC with its principal place of business in California. The plaintiffs failed to establish a triable issue that a Thai company registered to conduct business in California knowingly benefitted from the alleged human trafficking and forced labor abuses, financially and by accessing a steady stream of imported seafood. View "Ratha v. Phatthana Seafood Co. Ltd." on Justia Law

Canadian Solar produces and exports certain crystalline silicon photovoltaic cells from China. The U.S. Department of Commerce, after an investigation, issued an order imposing a duty to counteract subsidies Canadian Solar received from the government of China. During its fourth administrative review of that countervailing duty order, Commerce determined that Canadian Solar received regionally specific electricity subsidies subject to countervailing duties under 19 U.S.C. 1677(5A)(D)(iv); Commerce identified electricity price variation across the different provinces and applied adverse facts available—due to the central government of China’s failure to cooperate in Commerce’s investigation—to conclude that the central government sets variable electricity pricing that is region-specific for development purposes.The Trade Court and Federal Circuit affirmed. The record supports Commerce’s conclusions. Commerce sufficiently and reasonably explained that it lacked key information because the government of China failed to cooperate by not acting to the best of its ability to comply with requests for information. As a result, Commerce was forced to fill informational gaps and properly relied on adverse inferences to find that Canadian Solar received a regionally specific electricity subsidy that must be countervailed. View "Canadian Solar, Inc. v United States" on Justia Law