Justia U.S. Federal Circuit Court of Appeals Opinion Summaries

Resco filed a petition with the Department of Commerce requesting initiation of antidumping and countervailing duty investigations on imports of certain magnesia carbon bricks (MCBs) from China and Mexico. MCBs are a type of refractory brick used to line ladles and furnaces used in steelmaking and steel handling processes. Resco’s petition proposed that the scope of the investigations be limited to certain types of MCBs, distinguishing MCBs from other types of refractory bricks and stating that the different types of bricks are not generally substitutable, due to varying chemical and physical properties and wear characteristics. Commerce studied the proposed scope of the investigation and published notices of initiation of antidumping and countervailing duty investigations and its final determinations, using almost all of the language proposed by Resco to define the scope of the investigations: Fedmet is a domestic importer of refractory bricks and other products used in the steelmaking industry. Fedmet was not a party to the antidumping and countervailing duty investigations Fedmet requested a scope ruling that its Bastion® line of magnesia carbon alumina bricks was outside the scope of the outstanding antidumping and countervailing duty orders on MCBs from China and Mexico. Commerce and the Trade Court rejected Fedmet’s arguments. The Federal Circuit reversed, finding Fedmet’s bricks outside the scope of the order.View "Fedmet Res. Corp. v. United States" on Justia Law

Jerseys, pants, and girdles imported by Riddell are all designed to be worn, in conjunction with protective pads (having both hard and soft components), while playing football. As imported none of the merchandise contains such protective items. U.S. Customs and Border Protection classified all of the merchandise as articles of apparel under either chapter 61 or chapter 62 of the Harmonized Tariff Schedule of the United States (HTSUS0. Riddell filed two protests under 19 U.S.C. 1514, arguing that the merchandise should have been classified as football equipment under HTSUS chapter 95. Customs denied Riddell’s protests. Riddell then filed civil actions in the Court of International Trade upheld the classification. The Federal Circuit affirmed the classifications as apparel, rather than sports equipment. View "Riddell, Inc. v. United States" on Justia Law

Essar manufactures steel in Chhattisgarh, India and imports hot-rolled carbon steel flat products into the U.S. In 2008, Commerce initiated an investigation of whether Essar received countervailable subsidies for its iron ore products in India for a 2007 review period. Commerce investigated Essar’s receipt of benefits from nine subsidies provided under “CIP,” a program administered by the government of Chhattisgarh. Essar repeatedly denied receiving CIP subsidies based on a claim that Essar did not have any manufacturing facilities in Chhattisgarh. The Department of Commerce found that Essar’s claims were contradicted by other information that Essar had supplied. During the fifth administrative review, the governments of India and Chhattisgarh failed to respond. Commerce therefore applied adverse facts available (AFA) in its final results and concluded that Essar did benefit from CIP. The Trade Court remanded to Commerce with instructions to explain how it corroborated the AFA rate for participation in the CIP or why corroboration was not practicable. Commerce explained that it applied a hierarchical methodology in selecting an AFA rate. The Trade Court found that Commerce had corroborated Essar’s AFA rate to the extent practicable under 19 U.S.C. 1677e(c) by utilizing calculated benefits from similar subsidy programs identified in the underlying countervailing duty investigation of hot-rolled carbon steel flat products from India. The Federal Circuit affirmed.View "Essar Steel Ltd. v. United States" on Justia Law

Cubatabaco, a Cuban entity, and General, a Delaware company, manufacture and distribute cigars using the COHIBA mark. General owns trademark registrations issued in 1981 and 1995. Cubatabaco owns the mark in Cuba and uses it worldwide. Cuban Assets Control Regulations (CACR), prohibit Cubatabaco from selling cigars in the U.S.; 31 C.F.R. 515.201(b) prohibits “transfer of property rights . . . to a Cuban entity,” but a general or specific license allows Cuban entities to engage in otherwise prohibited transactions. General licenses are available for transactions “related to the registration and renewal” of U.S. trademark. Specific licenses issue from the Office of Foreign Assets Control. Cubatabaco used a general license to attempt to register the COHIBA mark in 1997, relying on 15 U.S.C. 1126(e), which allows reliance on a foreign registration if the applicant has a bona fide intent to use the mark in commerce. Cubatabaco also sought to cancel General’s registrations, which the PTO cited as a basis for likelihood of confusion. Cubatabaco obtained a special license to sue General. The district court held that General had abandoned its registration by non-use and enjoined General’s use of the COHIBA mark, finding that Cubatabaco had acquired ownership under the famous marks doctrine. The Second Circuit reversed, holding that injunctive relief would involve a prohibited transfer under CACR because Cubatabaco would acquire ownership of the mark and later affirmed denial of General’s motion concerning cancellation of its registrations. The Board then dismissed Cubatabaco’s petition, stating that it need not address preclusion because Cubatabaco lacked standing. The Federal Circuit vacated, finding that Cubatabaco has a statutory cause of action to petition to cancel the registrations and that issue and claim preclusion do not bar that petitionView "Empresa Cubana del Tabaco v. General Cigar Co., Inc." on Justia Law

When the Department of Commerce conducts a countervailing duty investigation of merchandise in a market involving many exporters and producers, it may select a sample of exporters and producers for individual investigation (mandatory respondents), 19 U.S.C. 1677f-1, who can cooperate and obtain individual duty rates. Otherwise they are given rates determined under section 1677e(b) using adverse facts available. Exporters or producers who are not initially selected, but who wish to participate (voluntary respondents), may supply information for calculation of individual duty rates. “ The general rule for calculation of the “all-others rate” refers to “an amount equal to the weighted average countervailable subsidy rates established for exporters and producers individually investigated, excluding any zero and de minimis countervailable subsidy rates, and any rates determined entirely under section 1677e.” An exception applies “[i]f the countervailable subsidy rates established for all exporters and producers individually investigated are zero or de minimis rates, or are determined entirely under section 1677e.” When the exception applies, Commerce may “use any reasonable method to establish an all-others rate for exporters and producers not individually investigated.” Following investigation of aluminum extrusions from China, the Court of International Trade sustained the all-others duty rate set by Commerce. The Federal Circuit reversed and remanded for determination of that rate under the general rule, interpreting “exporters and producers individually investigated” to encompass voluntary respondents. The precondition for invoking the exception provision was not met. View "MacLean-Fogg Co. v. United States" on Justia Law

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

uPI and Richtek design and sell DC-DC controllers that convert direct current from one voltage to another, and are embodied in chips for downstream devices such as computer motherboards. uPI was founded by former Richtek employees; its chips are imported into the U.S. either directly or as incorporated in downstream devices. Richtek complained to the International Trade Commission that uPI misappropriated Richtek’s trade secrets and infringed Richtek’s U.S. patents, in violation of the Tariff Act, 19 U.S.C. 1337. uPI offered to enter into a consent order and to cease importation of products produced using or containing Richtek’s trade secrets or infringing Richtek’s patents. Over Richtek’s objection, the ALJ entered the consent order substantially as drafted by uPI. The Commission terminated the investigation. A year later Richtek filed an Enforcement Complaint. An ALJ distinguished between products that were accused in the prior investigation and products allegedly developed and produced after entry of the Consent Order, finding violations as to the formerly accused products and that the post- Consent Order products infringed two patents, but were independently developed and not produced using Richtek’s trade secrets. The Commission affirmed with respect to the formerly accused products and reversed in part with respect to the post-Order products. The Federal Circuit affirmed concerning the formerly accused products, but reversed the ruling of no violation as to the post-Consent Order products.View "UPI Semiconductor Corp. v. Int'l Trade Comm'n" on Justia Law

In 2010, at the request of domestic interested parties, the Department of Commerce initiated review under 19 U.S.C. 1675(a) on an outstanding antidumping duty order on stainless steel bar from India 2009-2010 and issued Mukand questionnaires to obtain product-specific cost information necessary to calculate Mukand’s dumping margin and ensure that comparison of similar products. Mukand’s response assigned the same production costs across all product sizes. Commerce informed Mukand that it did not consider this approach reasonable and asked that Mukand produce size-specific information, regardless of whether it normally tracked such information or to “quantify and explain” any reasons for believing that size-based cost differentials are insignificant. Mukand responded with a brief statement that where product grade and type of finishing operation are the same, direct material costs do not vary with size. After a fourth questionnaire, Mukand still declined to report size-specific costs, but never contacted Commerce for clarification or assistance. Commerce determined that Mukand’s responses were deficient, resorted to facts otherwise available, and applied an adverse inference against Mukand. The Court of International Trade and Federal Circuit affirmed. Without cost data broken down by product size, Commerce was unable to differentiate between different types of steel bar products and could not calculate an accurate constructed value for any of Mukand’s products. View "Mukand, Ltd. v. United States" on Justia Law