Formal Presentation of the Portrait of Senior Judge Donald C. Pogue
NOVEMBER 3, 2015
U.S. Court of International Trade
One Federal Plaza, New York, NY
Members are cordially invited to attend a Special Session of the United States Court of International Trade for the formal presentation in its ceremonial courtroom of the portrait of Senior Judge Donald C. Pogue. Reception will follow in the library.
RSVP acceptance only by October 1, 2015. Please contact
CITBA Young Lawyers Committee: Trade Law and Politics
SEPTEMBER 25, 2015
12pm - 1:30pm
Hughes Hubbard & Reed LLP
1775 I Street NW
Washington, DC 20006
Please join us for a brown bag lunch discussion with Viji Rangaswami and John Smirnow on varied careers in trade - ranging from trade politics to in-house trade law and any other trade-related topic you are interested in discussing!
- Vice President of Federal Affairs at Liberty Mutual; former Chief Trade Counsel and Staff Director, Trade Subcommittee of the Committee on Ways & Means, former Associate in the Trade, Equity, and Development Project at the Carnegie Endowment.
- Principal of Smirnow Law; Member, Trade & Environment Policy Advisory Committee for USTR; former Vice President of Trade & Competitiveness for Solar Energy Industries Association; former Chairman, Renewable Energy & Energy Efficiency Advisory Committee, U.S. Department of Commerce.
For those out of town or unable to attend in person, a dial-in teleconference number will be provided upon request.
Trial and Appellate Practice Report and Draft Workshop Agenda
JULY 22, 2015
10am - 1pm
Crowell & Moring LLP
590 Madison Avenue
New York, NY 10022
CITBA hosted a workshop regarding the Court of International Trade's recent decisions, various court orders and CIT Rules 83 and 84. Lunch was served and the event was available via video conference at Arent Fox in Washington, D.C.
Customs Young Lawyers Committee Brown Bag Panel Discussion on Trade and Development
JULY 7, 2015
Department of Commerce Law Library
The CITBA Young Lawyers Committee held an informal brown bag lunch discussion on the interplay of trade and development: how trade can encourage (and discourage) economic development, good governance, and human rights.
Customs Young Lawyers Committee: Customs and International Trade Law Careers
JUNE 9, 2015
4pm - 5pm (followed by reception)
U.S. Court of International Trade
One Federal Plaza, New York, NY
This event featured a panel of established trade and customs practitioners in the New York City area who offered their perspectives on trade and customs careers and provided guidance for newer attorneys looking to break into the field. There was a networking reception immediately following the panel.
CITBA Brown Bag Series
Everything You Ever Wanted to Know About Scope Rulings But Were Too Afraid to Ask
JUNE 3, 2015
12pm - 2pm
Drinker Biddle & Reath LLP
1500 K Street, NW
Washington, DC 20005
Conference Room 2B
The U.S. Department of Commerce is tasked with issuing rulings interpreting the scope of Antidumping and Countervailing Duty Orders. This informal event featured a lively discussion featuring trade practitioners and a representative from the U.S. Department of Commerce discussing the "nuts and bolts" of asking Commerce for a scope ruling, and what to do if a scope ruling impacts your client. Panelists also discussed developing a scope for a new petition.
Customs Young Lawyers Committee Networking Event and
MAY 19, 2015
5:30 pm to 7:30 pm
The Donovan Hotel Rooftop Lounge
1155 14th Street, NW
Washington, DC 20005
The CITBA Young Lawyers Committee held an informal networking event for an opportunity to connect with other customs and trade law professionals.
Customs Lawyers Association
Exercising Due Diligence on Customs and Trade Issues in Mergers and Acquisitions - Discussion Panel
MAY 14, 2015
Hogan Lovells US LLP
Moot Court Conference Room (in the Lobby)
555 Thirteenth Street, NW
Washington, DC 20004
In this discussion, the panelists examined due diligence issues that arise before and after a M&A transaction, including common pitfalls the acquiring company should be aware of when attempting to reduce the risk in successor liability. The panel was followed by a networking reception.
Michael V. Cerny - Partner, Cerny and Associates
Glenyss Ford - Assistant Field Director, Regulatory Audit, U.S. Customs and Border Protection
Kelly Herman - Of Counsel, Morgan Lewis & Bockius LLP
Margaret S. Solinger - Corporate Counsel, DuPont
Richard Mojica - Of Counsel, Miller & Chevalier
2:00 pm - 5:00 pm (Program)
5:30 pm - 7:00 pm (Reception)
U.S. Court of International Trade
One Federal Plaza, New York, NY
The Program included:
2:00 pm- 3:20 pm
Overview Scott Warner, CIT Operations Manager
Judge Mark Barnett, U.S. Court of International Trade
Lawrence Friedman, Partner, Barnes Richardson
Frances Hadfield, Counsel, Crowell & Moring
Justin Miller, Senior Trial Counsel, Department of Justice
Guy Eddon, Trial Attorney, Department of Justice
Russell Semmel, Associate, Neville Peterson LLP
Trade Remedies Presentation:
Judge Claire Kelly, U.S. Court of International Trade
Thomas Beline, Associate, Cassidy, Levy, Kent LLP
Joshua Kurland, Trial Attorney, Department of Justice
3:40 -5:00 Preparing versus Coaching Witnesses
Lewis Tesser, Partner, Tesser, Ryan & Rochman LLP
Renee Gerber, Trial Attorney, Department of Justice
Following the Program, CITBA held its annual meeting and reception at which it elected the Board of Directors and Officers of the Association.
New CITBA Board of Directors
We are pleased to announce the new CITBA Board of Directors:
President Joseph W. Dorn
Vice President Lawrence M. Friedman
Secretary Kathleen W. Cannon
Treasurer William Sjoberg
Chair, Continuing Legal
Education and Professional
Responsibilities Committee Michele Lynch
Co-Chairs, Customs Committee Robert Shapiro
John M. Peterson
Co-Chairs, International Trade Alice Kipel
Committee Jeff Gerrish
Chair, Export Committee Melvin S. Schwechter
Chair, Judicial Selection
Committee Jay Eizenstat
Chair, Liaison with Other Bar
Associations Committee Claudia Burke
Chair, Meetings and Special
Events Committee Beth C. Ring
Chair, Membership Committee William J. Maloney
Chair, Publications Committee Mark Ludwikowski
Chair, Technology Committee Victor S. Mroczka
Co-Chairs, Trial and Appellate Frances P. Hadfield
Practice Committee Daniel B. Pickard
Co-Chairs, Young Lawyers Joshua E. Kurland
Committee Mary S. Hodgins
At Large Member Justin R. Miller
Past President James R. Cannon, Jr.
NEWS FROM THE CLERK OF THE COURT OF INTERNATIONAL TRADE
By Tina Potuto Kimble, Scott Warner, & Stephen Swindell*
Amendments to six Rules of the Court, Standard Chambers Procedures and certain forms became effective on July 1st. Here's a brief song-nopsis of some of the bigger changes you should be aware of:
Rule 12(b): You must remember this, a Motion to Dismiss is just a Motion to Dismiss, but the provisions might be a little different this time...To bring them closer in line with their counterparts in the Federal Rules of Civil Procedure("FRCP"), the provisions of Rule 12(b) are now:
(1) lack of subject-matter jurisdiction
(2) lack of personal jurisdiction
(4) insufficient process
(5) insufficient service of process
(6) failure to state a claim upon which relief can be granted
(7) failure to join under Rule 19
Rule 45: Subpoena dreams are made of this, who am I to disagree with the latest amendments to Rule 45?...Created and approved to meet the unique jurisdiction of the Court and to follow the 2013 amendments to the FRCP, these amendments touch on several aspects of subpoenas, including service of notice and copies, geographical limitations, and quashing, modifying and enforcing them.
Rule 56 and 56.3: Don't you forget about me and your Statement of Material Facts...In short, Statements of Material Facts are back on the Must Have list for Motions for Summary Judgment. Formerly known as Rule 56(h), which was eliminated in 2013, this renewed requirement can now be found in Rule 56.3. Ladies and gentlemen, start your numbered and correspondingly numbered paragraphs!
Rule 56.2(h): It's my remand and I'll comment if I want to...A new subsection has been added to Rule 56.2 to standardize deadlines involving remand determinations. Here's a short and sweet breakdown of the new filing deadlines:
(1) 14 days after remand determination: Index of any new administrative record documents
(2) 30 days after remand determination: Comments in opposition to remand determination
(3) 30 days after last comments in opposition to remand determination: Comments in support of remand determination
(4) 7 days after filing comments: Appendix to comments, if needed (check out the amendment for the specifics!)
Standard Chambers Procedures: Precious and few are the word limits we two can share commenting on remand determinations...And just how much wiggle room do you have?
10,000 words: Comments in support of remand determination
10,000 words: Comments in opposition to remand determination
If you wish to file both comments in support and in opposition to a remand determination, please keep in mind that you may not exceed 10,000 words in total. Either way, don't forget your Certificate of Compliance!
Fillable Forms: All you gotta do is repeat after me, P-D-F, it's easy as 1-2-3...We've made a few of our forms even friendlier by making them fillable online. So the next time you're thinking about filing a Form 6 Request for Trial, Form 11 Notice of Appearance, Form 12 Notice of Substitution of Attorney or a Form 19 Report of the Parties' Planning Meeting, check them out on the court's website and give them a try!
Federal Circuit and CIT Case Summaries
By Claudia Burke & Stephen Tosini*
Federal Circuit Rejects Argument that Retroactive Application of Byrd Amendment Violated Due Process Clause.
Pat Huval Restaurant and Oyster Bar, Inc. v. Int'l Trade Comm'n
(Fed. Cir.) [Lourie, Chen, and Bryson, J.J.]. On May 7, 2015, the Court of Appeals for the Federal Circuit rejected constitutional claims by domestic anti-friction bearings producers seeking payments pursuant to the Continued Dumping and Subsidy Offset Act of 2000. Appellants were denied CDSOA monies because, in 1988, they had not been supporters of the petition that led to the relevant antidumping order. Although it held that the statute operated retroactively with regard to appellants, the Federal Circuit rejected appellants' argument that retroactive application violated their due process rights. The court held that the support requirement rationally promoted the government's legitimate legislative purpose of rewarding only those domestic producers who had assisted the government in the enforcement of the fair trade laws by supporting successful petitions, and that it was rational for Congress to conclude that this reward purpose would be more fully effectuated if the support requirement was applied both prospectively and retroactively.
Federal Circuit Affirms Trial Court's Dismissal of Importer's Challenge to Customs and Border Protection's Imposition of Duties.
Carbon Activated Corp. v. United States (Fed. Cir.) [Dyk, Schall, and Taranto, JJ.]. On June 26, 2015, the Federal Circuit affirmed the Court of International Trade's dismissal of an action challenging Customs and Border Protection's (CBP) 2008 assessment of duties. Before the Court of International Trade and on appeal, appellant contended that the assessment was premature and unlawful because of a pending judicial challenge by another importer. The government sought dismissal for lack of jurisdiction because, based on the congressionally-mandated process, appellant could have protested CBP's assessment within 180 days and, had it failed to prevail in such protest, it then could have challenged CBP's denial by filing a challenge in the trade court within two years. On appeal, the court rejected appellant's argument that the protest procedure was manifestly inadequate, holding that the protest remedy would have been adequate because it ultimately would have resulted in appellant receiving an assessment of duties at the proper rate.
Federal Circuit Confirms Constitutionality of Requirement to Pay Customs Duties Prior to Commencing Suit to Challenge Their Assessment.
International Custom Products v. United States
(Fed. Cir.) [Lourie, Bryson, Chen, JJ]; On June 30, 2015, the Federal Circuit affirmed the Court of International Trade's dismissal of an importer's challenge to the constitutionality of the long-standing requirement that an importer must pay assessed duties prior to seeking judicial review. 28 U.S.C. § 2637. The importer and an amicus argued that the requirement to prepay duties (in this case, $28 million) is a taking of property without necessary due process. The court held that this requirement is a valid limitation on the waiver of sovereign immunity and that the importer had no valid property right in any particular classification and accompanying duty rate. The court also affirmed the trial court's holding that it could not exercise jurisdiction pursuant to 28 U.S.C. § 1581(i) because the importer could have brought its challenges under 28 U.S.C. § 1581(a) if it had paid the duties owed prior to commencing its action.
Court of International Trade Concludes that Successor Corporation May Be Liable for Unpaid Duties and Penalties Owed by Defunct Predecessor.
United States v. CTS Holding, LLC.
(Ct. Int'l Trade) [Barnett, J.]. On June 30, 2015, the Court of International Trade held that corporate successors may be held liable for their predecessor's unpaid duties and for penalties imposed pursuant to 19 U.S.C. § 1592. The court reasoned that CBP may commence penalty actions against "persons" who violate the statute; that the statute defines "person" to include corporations; and the Dictionary Act, 1 U.S.C. § 5, provides that the word "company," when used in reference to a corporation, is deemed to embrace the word "successors." Reading these provisions together, the court concluded that the word "person" in section 1592 properly includes corporations and their successors. The court denied defendant's motion for summary judgment upon the ground that there are genuine issues of material fact as to whether defendant is a mere continuation of its predecessor for purposes of imposing successor liability.
Federal Circuit Sustains Commerce's "Targeted Dumping" Practice.
JBF RAK LLC v. United States (Fed. Cir.) [Dyk, Wallach, Hughes, JJ];
Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States (Fed. Cir.) [Newman, Lourie, O'Malley, JJ]. On June 24, 2015, the Federal Circuit affirmed two Court of International Trade judgments sustaining the Department of Commerce's "targeted dumping" determinations in administrative reviews of antidumping duty orders covering polyethylene terephthalate film, sheet, and strip from the United Arab Emirates and circular welded carbon steel pipes and tubes from Turkey. The statute, 19 U.S.C. § 1677f-1(d)(1)(B), allows Commerce to compare average home market prices to individual export prices (average-to-transaction method) in investigations, if there is a pattern of export prices that differs significantly among purchasers, regions, or time periods, and Commerce explains why such differences cannot be taken into account using the normal comparison methods. The appellants in JBF argued that the statute barred Commerce from considering price patterns in administrative reviews, that the domestic industry was too late in providing Commerce with evidence concerning price patterns, and that Commerce was required to consider why the price patterns existed. The court held in JBF that Commerce reasonably followed its analysis used in investigations because the statute is silent as to the comparison method that Commerce may use in administrative reviews. The court also held in both JBF and Borusan that the statute does not mandate that Commerce analyze the reasons behind export price patterns before employing the average-to-transaction method.
Court of International Trade Sustains Commerce's Ruling that Chinese Importer of Pure Magnesium Did Not Engage in Fraud.
US Magnesium LLC v. United States
(Ct. Int'l Trade) [Eaton, J.]. On May 21, 2015, the Court of International Trade sustained Commerce's final results of the 2009-2010 administrative review of the antidumping duty order covering pure magnesium from China. A domestic magnesium producer (US Magnesium) challenged Commerce's determination, alleging-among other things-that a Chinese importer (TMI) had engaged in fraud because it did not disclose that it rented certain equipment, known as retorts, from an alleged affiliate. US Magnesium contended that retorts should be treated as a direct cost. The court first held that Commerce properly treated retorts as overhead, rather than a direct cost. Second, the court held that US Magnesium had failed to show evidence of fraud because (1) TMI was never asked to disclose whether it obtained its retorts from an affiliate, and (2) the purported evidence of fraud was immaterial to Commerce's underlying determination that the costs of the retorts constituted overhead.
Court of International Trade Sustains Commerce's Antidumping Duty Decision Concerning Pure Magnesium from China.
US Magnesium LLC v. United States (Ct. Int'l Trade) [Gordon, J.]. On June 1, 2015, the Court of International Trade sustained Commerce's final results in the 2011-12 administrative review of the order on pure magnesium from China. A domestic magnesium producer (US Magnesium) challenged, among other things, Commerce's selection of surrogate values for the raw, magnesium scrap input used to produce finished magnesium products. Although Commerce typically chooses surrogate data from one country-in this case, the Philippines-Commerce determined that Philippine data for magnesium scrap significantly exceeded benchmark values from numerous countries for finished magnesium products. Consequently, Commerce selected magnesium scrap data from a secondary surrogate country, Serbia. US Magnesium alleged that Commerce was required to use the benchmark values for finished magnesium products from other countries, either individually or in some combination, as a surrogate to "cap" the value of Philippine scrap. The court held that US Magnesium failed to show that Commerce departed from a past practice. The court found that Commerce's determination to use Serbian data reflected an effort to comply with the statutory requirement that the agency use the "best available information" to value magnesium scrap.
Court of International Trade Rejects Challenges to Antidumping Duty Determinations for Lack of Jurisdiction.
Hutchison Quality Furniture, Inc. v. United States;
P.F. Stores, Inc. v. United States (Ct. Int'l Trade) [Kelly, J.]. On June 9, 2015, the Court of International Trade rejected two challenges to CBP's assessment of antidumping duties on Chinese furniture imports imposed by Commerce. Two importers challenged CBP's assessment of antidumping duties, contending that CBP had failed to timely liquidate their entries of subject merchandise in response to Commerce's determination and instructions. The court rejected the importers' claims, holding that, even if the liquidations were untimely, the importers could not trigger the court's residual jurisdiction because they had failed to avail themselves of adequate alternative remedies associated with administrative protests of CBP decisions.
Court of International Trade Sustains Antidumping Duty Determination Covering Residential Washing Machines from the Republic of Korea.
Samsung Electronics Co. v. United States
(Ct. Int'l Trade) [Gordon, J.]. On June 12, 2015, the Court of International Trade issued a pair of lengthy opinions that sustained Commerce's interpretation of 19 U.S.C. § 1677f-1(d)(1)(B), which authorizes the agency to utilize an alternative methodology for calculating dumping margins when certain statutory criteria are met. Samsung Electronics and LG Electronics, producers and exporters of residential washers from Korea, had argued that the statute required Commerce to consider whether there were legitimate commercial reasons for its pricing behavior before using the alternative methodology. The court held that Commerce is not required to undertake an investigation concerning the reasons for the exporters' pricing behavior. The court also deferred to Commerce's interpretation of several other statutory provisions and rejected a challenge by Whirlpool to the sufficiency of Commerce's accounting verification procedures.
Court of International Trade Sustains Commerce's Antidumping Duty Determination Covering Circular Welded Non-alloy Steel Pipe from Korea.
Husteel Co., Ltd. v. United States (Ct. Int'l Trade) [Stanceu, C.J.]. On June 23, 2015, the Court of International Trade sustained the final results of Commerce's administrative review of its antidumping duty order covering circular welded non-alloy steel pipe from Korea. The court concluded that Commerce's decision not to use a corrected version of the home-market-sales database that Husteel had belatedly submitted during the review was supported by substantial evidence. The court also sustained Commerce's decision not to respond to a notice of supplemental authority filed by the domestic industry. Finally, the court concluded that Commerce did not err by using weight conversion factors provided by Husteel.
Court of International Trade Remands Commerce's Scope Ruling Regarding Green Tubes Manufactured in China and Finished in Other Countries.
Bell Supply Co., Ltd. v. United States (Ct. Int'l Trade) [Kelly, J.]. On July 15, 2015, the Court of International Trade issued its public decision remanding Commerce's scope determination regarding green tubes that are manufactured in China but finished in other countries. The court held that Commerce improperly expanded the scope of the antidumping and countervailing duty orders covering oil country tubular goods from China when it used a substantial transformation analysis to determine whether plaintiff's merchandise, which was finished in a third country, was still Chinese and, therefore, subject to the orders. The court concluded that the antidumping statute contains an express provision for addressing allegations that a company is circumventing an order and that Commerce's analysis did not comply with that provision.
* Claudia Burke and Stephen Tosini are attorneys with the Department of Justice, Civil Division, National Courts Section. These summaries are not a document of the U.S. Department of Justice, nor does it represent the official views of the Department of Justice.
TRADE COURT FINDS CUSTOMS' DECISION TO APPLY AD/CVD ORDERS TO IMPORTS REVIEWABLE UNDER COURT'S "PROTEST" JURISDICTION
By Arthur Purcell*
The U.S. Court of International Trade ("CIT") has ruled that a determination by the U.S. Customs & Border Protection, on whether imported merchandise is subject to Commerce Department's antidumping ("AD") and countervailing duty ("CVD") orders, is a protestable "decision" that the importer can directly challenge at the CIT, even though the importer has simultaneously pursued a Commerce Department's "scope" inquiry. The CIT explains that while Commerce alone decides the parameters (
i.e., the reach or scope) of the AD/CVD orders, Customs constructs a decision based on the examination of the merchandise and makes a factual determination that the AD/CVD orders apply to that merchandise as well.
LDA Incorporado v. United States, CIT Slip Op. 15-64 (June 19, 2015), the Government argues that the court lacks "protest" jurisdiction under 28 U.S.C. § 1581(a), because Customs' application of the AD/CVD orders covering circular welded carbon quality steel pipe from China to LDA's merchandise is merely "ministerial" acts, involving no protestable decisions. Generally, it is Commerce Department's role, not CBP's, to determine the scope of the AD/CVD order prior to importation. Commerce issues "scope rulings" at the request of the interested parties; such ruling is subject to challenge before Commerce and the CIT under 28 U.S.C. § 1581(c).
LDA purchased rigid galvanized steel conduit produced by a Chinese manufacturer and imported that merchandise into the U.S. in 2010. LDA entered the goods as a "Type 1 entry," not subject to the AD/CVD orders. Upon entry into Puerto Rico, the conduit was internally and externally coated with zinc, a non-electrically insulating material suitable for electrical use in accordance with industry standards for electrical rigid ferrous metal/steel conduit. The AD/CVD orders specifically excluded "finished electrical conduit" from the scope of the orders. A CBP laboratory inspected the merchandise after entry, concluding in a Notice of Action that the sampled articles were not internally coated with a non-conducting liner, and assessed AD/CVD duties. The Notice itself did not state the reasons for the duty rate advance, but in meetings and telephone discussions with LDA, CBP initially stated that the goods were not internally galvanized and thus subjected to the the AD/CVD orders as an "unfinished" conduit; however, they later agreed that the goods were internally and externally galvanized, yet they continued to determine that the goods were an unfinished conduit and not suitable for electrical use since it was not internally coated with a non-conducting liner. LDA disputed that there was any requirement for a finished conduit to include an electrically insulating interior coating. The matter was review by CBP headquarters, which opined that LDA should get a scope ruling from Commerce.
In January 2012, CBP liquidated the merchandise with AD/CVD duties. A month later, in February 2012, LDA filed expedited AD/CVD scope inquiry requests with Commerce. With the 180 deadline for administratively challenging CBP's liquidation approaching, LDA filed a protest against the liquidation, referencing its pending scope inquiry with Commerce
in April 2012. In May 2012, CBP denied the protest. In July 2012, Commerce issued a final scope ruling, agreeing with LDA that the merchandise was finished electrical conduit, and therefore, excluded from the scope of AD/CVD orders. Commerce specifically rejected CBP's contention that galvanized electrical conduit had to have an internal lining of non-electrically conducting material in order to be considered an electrical conduit.
Although Commerce had ruled in LDA's favor, the importer understood that CBP's liquidation of the merchandise with AD/CVD duties, and its subsequent denial of LDA's protest, would become final and binding unless challenged in court. Therefore, LDA filed an action with the CIT, invoking the court's "protest" jurisdiction (28 USC § 1581(a)); thereby challenging CBP's liquidation and assessment of the AD/CVD duties. The Government contested CIT's jurisdiction, arguing that CBP had no authority in determining the "scope" of the AD/CVD Order, as that role was reserved for Commerce. Indeed, before the court, CBP did not dispute that the goods were finished electrical conduit but rather argued that LDA's "actual dispute [was] with the scope of the CVD and AD Orders applied to its merchandise by CBP."
Nevertheless, the CIT disagrees with CBP. It rules that "it is not reviewing what Commerce has done, as it would if this case involved a challenge to a scope ruling under § 1581(c). The court exercises jurisdiction under § 1581(a) to review whether Customs' decision to apply the [AD/CVD] Orders to [LDA's] merchandise [i]s in error." Citing the Court of Appeals for the Federal Circuit's 2012 decision in
Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002), the CIT explains that CBP's decision to apply the AD/CVD Order to the merchandise is not a determination of the scope of the Order (or the AD/CVD duty owed), a matter assigned to Commerce, but a factual finding to determine what the merchandise is, whether it is described in the AD/CVD Order, and whether to apply the Order to the merchandise. Here, the Court holds that Customs' role is not simply "ministerial," as the agency examines the merchandise and makes factual findings. In this case, CBP conducts lab analyses and findings about the nature of the products, which Commerce later determines is erroneous. CBP's assessment on whether the AD/CVD order applies to LDA's merchandise is therefore protestable and may be challenged under the Court's protest jurisdiction.
According to the Court, the Government's argument that the true nature of the dispute is that the "scope" of the Orders "raises a separate problem." First, "this suggests that the scope of the Orders [i]s clear, requiring [LDA] to seek a scope ruling from Commerce." At the same time, the Government tries to distinguish
Xerox by arguing that the phrase "finished electrical conduit" is ambiguous. The Court observes: "If Defendant is arguing that the scope [i]s unclear,then by placing the goods within the scope of the Orders prior to a clarification by Commerce, Customs would have been interpreting the Orders, which it is not allowed to do." The CIT asserts that if Customs needs clarification, it could have consulted with Commerce, but at the same time, it states, "there seems to be no mechanism for seeking Commerce's guidance and suspending liquidation while doing so."
It should be noted that in this case, Commerce has ruled in favor of LDA in its scope inquiry and determined that CBP misapplied the scope; hence, there is no basis to "challenge" Commerce's decision under the Court's scope review jurisdiction, 28 U.S.C. § 1581(c), had Commerce rejected LDA's legal position and found the goods within the scope of the Orders. However, it is unclear whether that fact would have affected the Court's determination with respect to its "protest" jurisdiction. In that instance, the importer would certainly maintain the right to judicial review of Commerce's adverse decision under Section 1581(c). In fact, in a footnote, the CIT observes that if there were any arguments that LDA's goods were not finished electrical conduits or that the Orders could have otherwise been construed to reach LDA's goods, "then such a task was for Commerce, not Customs." In this case, however, CBP makes a factual determination as to what the merchandise is, whether it is described in the AD/CVD Orders, and whether to apply the Orders to the merchandise -- all such decisions having been made prior to Commerce's determination of the scope
* Arthur Purcell is a
Partner at Sandler, Travis & Rosenberg, P.A. in the New York office, specializing in International Trade & Customs.
Trade Remedies Bulletin
Case Studies and Meditations on Trade Remedies
This is an op-ed and commentary type column for those among us who are involved or interested in trade remedies. It is no secret that these cases involve a multitude of issues, high stakes and tight deadlines. We hope to hear your tales from the trenches and thoughts on key developments in this area (of course, you don't have to be a trade remedies expert to contribute). You can send your war stories and news to firstname.lastname@example.org
So far the Summer of 2015 has produced a perfect record for petitioners, at least as far as preliminary injury determinations at the International Trade Commission are concerned. In the last three antidumping and countervailing cases filed since our last edition in May, all three cases have resulted in unanimous votes by the Commissioners in the preliminary phase. This translates to an 18-0 record since early June.
It is surely a welcome development for the petitioners side, and comes on the heels of two closer petitioner victories: 4-1 (Commissioner Keif recusing) ITC affirmative injury final vote in the Steel Nails case on June 16; and a 3-3 ITC affirmative final in the Passenger Vehicle and Light Trucks Tire case on July 14.
Respondents did score a win at the ITC final with a 5-0 negative vote (Commissioner Keif recusing) of the 53-Foot Domestic Container case on May 19, a decision which is being appealed to the Court of International Trade.
The last three months saw the filing of the anticipated round of new steel trade cases. On June 3, domestic producers filed an antidumping and countervailing duty petition on imports of Corrosion-Resistant Steel ("CORES") Products from China, India, Italy, Korea, and Taiwan. This case was followed by AD and CVD petitions on Certain Cold-Rolled Steel Flat Products from Brazil, China, India, Korea, Russia, Japan, Netherlands and the United Kingdom on July 28, and AD/CVD on Hot-Rolled Steel Flat Products from Brazil, South Korea, Turkey, Australia, Japan, Netherlands, and the United Kingdom on August 11.
Petitioners have claimed that as steel imports exploded in recent years, the domestic market share had declined and U.S. producers lost sales to dumped and subsidized steel entering the United States. The cases come at a time when China, steel's biggest exporter, has devalued its currency and is facing an economic slowdown, both of which could encourage potential displacement of its steel surpluses.
In the CORES case, the ITC has reached an affirmative preliminary determination on July 16. All six ITC Commissioners voted in the affirmative that there is a reasonable indication that the U.S. industry is threatened with material injury by reason of imports.
The CORES investigations have moved on to the Department of Commerce. The DOC is expected to reach its preliminary determination in the CVD investigations on November 2, and the AD investigations on November 10. Issues worth watching at the DOC include the "critical circumstances" allegation made petitioners which could result in application of duties 90 days before the DOC's preliminary determination, and limited participation by Chinese respondents. Several Chinese mills selected by DOC as mandatory respondents appear to have withdrawn from the investigation.
The Cold-Rolled and Hot-Rolled cases are still within the ITC preliminary phase and the Commission's preliminary vote is expected on September 10 and September 24 respectively.
A new AD petition on Hydrofluorocarbon ("HFC") Blends from China was filed on June 25. Petitioners include the American HFC Coalition and its individual members, as well as District Lodge 154 of the International Association of Machinists and Aerospace Workers. The individual members of the American HFC Coalition are:
Amtrol Inc., Arkema, Inc., The Chemours Company FC LLC, Honeywell International, Inc., Hudson Technologies, Mexichem Fluor, Inc., and Worthington Industries, Inc.
The alleged dumping margins range from 111 to 300 percent.
There are two major end-use markets for HFC blends: air conditioning and refrigeration. To replace ozone-depleting refrigerants, primarily R-22, U.S. manufacturers developed a family of HFC blends designed to operate in these applications.
This investigation includes any Chinese HFC components that are blended in a third country to produce a subject HFC blend before being imported into the United States. Also included are semi-finished blends of Chinese HFC components.
On August 7, all six ITC Commissioners voted in the affirmative in the preliminary injury determination that U.S. industry is materially injured by reason of imports. The case now continues at the DOC which is scheduled to issue its preliminary determination on December 2.
The scope definition has been one of early contentious issues in this investigation. On July 20, the DOC held a conference call with CBP which expressed concerns that the scope as written will be ineffective. CBP stated that HFC blends are ease and require little equipment to mix. Thus, because the current scope covers HFC blends comprised of components at specifically-defined percentages, importers could legally import HFC mixtures which are outside the scope for re-blending in the United States, thereby negating the effect of the order. CBP suggested that the scope be modified: 1) to cover all HFC blends made of mixtures of HFC components in any proportion; and 2) to exclude specifically any finished blends of these mixtures that are not HFCs. According to CBP, revising the scope in this manner would reduce the risk of circumvention and the number of samples CBP will need to test to determine compliance with any eventual AD order.
Pipe and Tube
On July 21, U.S. producers filed an AD/CVD petition on Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes from Korea, Mexico and Turkey.
This product is typically used as support for construction or load-bearing purposes in construction, transportation, farm and material handling equipment.
The alleged dumping margins are 96.5% to 108.6% for Turkey, 23.4% for Mexico and 79.8% for Korea.
All six ITC commissioners voted in the affirmative on September 3 that there is a reasonable indication that U.S. industry is materially injured by reason of imports. The case now continues at the DOC which will issue its preliminary determinations on October 14 (CVD) and December 28 (AD).
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