Japanese producers1 appealed a ruling by the Court of International Trade upholding the final results of the May ’06 -- April ’07 AD administrative review of ball bearings and parts thereof from Japan, as to various aspects of model matching and the use of zeroing in the margin calculation (disregarding the value of non-dumped sales in the average dumping margin). The Court of Appeals for the Federal Circuit upheld all of the International Trade Administration’s model matching decisions but, citing its own recent decision challenging zeroing in Dongbu Steel Co. Ltd. v. United States, the CAFC remanded the zeroing issue to the CIT for further explanation by the ITA on why it is reasonable to use zeroing in reviews but not in investigations. (See ITT’s Online Archives or 04/04/11 news, 11040408, for BP summary of Dongbu decision challenging the continued use of zeroing)
A group of 43 U.S. softwood lumber producers not belonging to the Coalition for Fair Lumber Imports sued at the Court of International Trade for a share of the $500 million in export charges collected by Canada and distributed to Coalition members under the Softwood Lumber Agreement of October 12, 2006 (the 2006 SLA). However, the CIT declined to hear the case, claiming it did not have jurisdiction because the U.S. Trade Representative had entered into the SLA under the legal authority of a different section of the Trade Act of 1974 than the one that gives the CIT jurisdiction (section 2171, rather than the CIT’s section 2411). However, tracing the history of the softwood lumber dispute since 1986, the Court of Appeals for the Federal Circuit overturned the CIT and ruled that the 2006 SLA does indeed fall within the CIT’s statutory jurisdiction. While allowing that a different argument, not yet adjudicated, might still succeed in removing jurisdiction, the CAFC ordered the CIT to hear the case. (Decision 2010-1389, decided 06/28/11)
In the third new shipper review of certain frozen fish fillets from Vietnam (covering the period August 1, 2007 through January 31, 2008 and producers Hiep Thanh Seafood Joint Stock Company and Asia Commerce Fisheries Joint Stock Company), the International Trade Administration determined that sales to a Mexican customer of Hiep Thanh stayed in the U.S. and should be counted as U.S. sales. The Mexican customer had trans-shipped some, but not all, of its purchases to Mexico, but Hiep Thanh claimed no knowledge of the U.S. destination. The Court of International Trade faulted the ITA for “too many internal inconsistencies and unexplained conclusions,” and in a new remand, it again ordered the agency to summarize the sales more clearly, and suggested the ITA provide an interpretation for the phrase “exportation.” (Slip Op. 11-74, dated 06/23/11)
In the third AD administrative review of floor-standing, metal-top ironing tables and certain parts thereof from China, the International Trade Administration discovered Chinese producer Since Hardware (Guangzhou) Co. Ltd. had provided falsified documents in that review as well as the two preceding reviews, which were still in litigation at the time. At the Court of International Trade, U.S. manufacturer Home Products International, Inc. lost a bid to overturn the results of the two preceding reviews in light of the false information discovered by the ITA. However, the Court of Appeals for the Federal Circuit overruled the CIT and directed it to issue a remand for a new second review; now the higher court has applied the same ruling to the earliest of the three successive reviews, covering the period February 3, 2004 through July 31, 2005. (See ITT’s Online Archives or 02/11/11 news, 11021110, for BP summary of prior court decision.) (Decision 2010-1194, decided 06/22/11)
Italian producer/exporter Schaeffler Italia S.R.L. (with Schaeffler Group USA Inc.) failed at the Court of International Trade in an attempt to overturn the final results of the May 2007 -- April 2008 AD administrative review of ball bearings from Italy, in which the International Trade Administration assigned it a 15.10% AD duty rate based solely on the margin results of SKF Industrie S.p.A./Somecat S.p.A, the only other respondent in the review.
Domestic and foreign producers both contested the June 2007 - May 2008 AD administrative review results for silicon metal from China. U.S. producer Globe Metallurgical Inc. argued that the International Trade Administration should: 1) reduce U.S. prices in the dumping margin calculation to account for export and value added taxes in China; 2) use invoice dates, not entry dates, to define U.S. sales, and 3) use coking rather than non-coking coal values in input costs. Chinese producers Shanghai Jinneng International Trade Co., Ltd. and Jiangxi Gangyuan Silicon Industry Company, Ltd. argued that the ITA should not use an allegedly distressed or “sick” Indian surrogate company in the calculation of overhead, profit and S, G & A expense ratios, or should at least recalculate that company’s ratios to reflect an asset sale and miscellaneous income. The Court of International Trade remanded only this last issue, the surrogate company’s income and expense calculations, for further explanation, and upheld all the other contested aspects of the review.
The Court of International Trade has ruled in CBB Group, Inc., v. U.S., that its consideration of cases involving "deemed exclusions" and its ability to order relief, if warranted, is not precluded by CBP's issuance of a Seizure Notice (as it was issued after the case was brought to court) or by the prospect that adjudication of claims will involve the application of copyright law.
On June 28, 2011, the U.S. Attorney's Office for the Southern District of California announced that two commercial fishermen from San Diego plead guilty to illegally fishing for albacore tuna in Mexican waters without the fishing permits required under Mexican law, in violation of the Lacey Act. Nathan Lee, Captain of the ship Two Captains, and Scott Hawkins, Captain of the ship Jody H, admitted that after leaving port in San Diego, they navigated into Mexican waters and caught approximately 800 pounds of albacore tuna. Authorities determined that the vessels were fishing over a hundred miles into Mexican waters near Guadalupe Island when they caught the tuna. Each fisherman was sentenced to a term of three years of probation, and ordered to pay a fine of $500.
In a Justice Department brochure to the anti-bribery provisions of the Foreign Corrupt Practices Act (FCPA) and other documents1, DOJ explains that liability for FCPA violations includes knowing payments made through intermediaries (which can include customs agents, sales representatives, etc.) to foreign officials. Liability can also attach to pre- and post-acquisition and merger conduct, or so-called "successor liability."
The Supreme Court has reversed the Court of Appeals of the Ninth Circuit's decision to certify a plaintiff class of about 1.5 million current or former female Wal-Mart employees, who alleged that the discretion exercised by their local supervisors over pay and promotion matters discriminated against women. The plaintiffs sought an award of injunctive and declaratory relief and backpay. Among other things, the Supreme Court held that the class was improperly certified as there were no questions of law or fact common to the class to hold together the alleged reasons for the employment decisions.