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05

Potential Challenge to the President's Section 232 Duties -Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

On March 25, 2019, a three-judge panel of the U.S. Court of International Trade (“CIT”) dismissed Am. Inst. For Int’l Steel v. Judges United States, CIT No. 18-00152, in which a number of plaintiffs had challenged President Trump’s decision of March 18, 2018 to impose a 25% additional duty on certain steel imports and a 10% additional duty on certain aluminum imports.[1]

The President had imposed the additional duties and quotas on imports from a number of countries under section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. § 1862 (“section 232”). The President claimed that these duties and quotas were required to eliminate a threat to national security stemming from excessive imports of the named products. The President then granted a number of exemptions to this program based on negotiations with certain exporting countries. Plaintiffs claimed that section 232 was an unconstitutional delegation of legislative authority to the President.

The CIT decision dismissing the AISI case likely will be appealed to the Court of Appeals for the Federal Circuit. The Federal Circuit decision may be appealed to the U.S. Supreme Court because the government’s case relies on Supreme Court precedent. Importers who wish to protect their rights to potential refunds of section 232 duties will have to file court actions in the CIT within two years of the dates that section 232 duties were paid. These filings will protect their rights in the event that a final judicial decision holds that the section 232 assessments were unconstitutional. For example, a case filed in the CIT on March 2, 2020 will protect the possible recovery of all section 232 duties paid within two years prior to this date.[2]

Please feel free to contact us if you have any questions regarding your rights to potential recovery of section 232 duties.

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[1] Still pending in the CIT is Medtrade, Inc. et al. v. United States, et al., CIT No. 19-00009, in which plaintiff importers claim that Proclamation No. 9772 of August 10, 2018, which imposes 50% section 232 duties on Turkish steel, violates the equal protection and due process clauses of the U.S. Constitution. The Government’s answer in that case must be filed by April 3, 2019.

[2] March 2, 2018 was the first day of collection of section 232 duties. If these test cases are not favorably resolved by March 2, 2020, then additional actions will have to be filed to protect refunds of section 232 duties paid after that date.


DDP Purchaser Settles False Claims Act Case - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP

The Department of Justice announced a False Claims Act settlement with a company who purchased apparel on a delivered duty paid basis (commonly referred to as DDP or LDP). The purchaser, Byer California, admitted to either permitting or turning a blind eye to the fact that the importer from which it purchased the goods was undervaluing the imported garments.

This case highlights the fact that DDP purchasers are not insulated from liability for customs violations just because they are not the importers of record. DDP purchasers are well advised to implement due diligence programs to ensure that their vendors are accurately declaring their goods to Customs.

If you would like further information, please do not hesitate to contact one of our attorneys.


U.S. Department of Commerce Issues Affirmative Preliminary Determination in the Countervailing Duty Investigation of Imports of Aluminum Wire and Cable from China -  U.S. Department of Commerce

Today (4/2/19), the U.S. Department of Commerce announced the affirmative preliminary determination in the countervailing duty (CVD) investigation of imports of aluminum wire and cable from China, finding that exporters received countervailable subsidies ranging from 11.57 to 164.16 percent.

As a result of today’s decision, Commerce will instruct U.S. Customs and Border Protection to collect cash deposits from importers of aluminum wire and cable from China based on these preliminary rates.

In 2017, imports of aluminum wire and cable from China were valued at an estimated $157.2 million.

The petitioners are Encore Wire Corporation (McKinney, TX) and Southwire Company, LLC (Carrollton, GA).
The strict enforcement of U.S. trade law is a primary focus of the Trump Administration. Since the beginning of the current Administration, Commerce has initiated 157 new antidumping and countervailing duty investigations – this is a 283 percent increase from the comparable period in the previous administration.

Antidumping and countervailing duty laws provide American businesses and workers with an internationally accepted mechanism to seek relief from the harmful effects of the unfair pricing of imports into the United States. Commerce currently maintains 472 antidumping and countervailing duty orders which provide relief to American companies and industries impacted by unfair trade.

Commerce is currently scheduled to announce its final determination on or about August 13, 2019.

If Commerce makes an affirmative final determination, the U.S. International Trade Commission (ITC) will be scheduled to make its final injury determination on or about September 26, 2019. If Commerce makes an affirmative final determination in this investigation and the ITC makes an affirmative final injury determination, Commerce will issue a CVD order. If Commerce makes a negative final determination or the ITC makes a negative final determination of injury, the investigation will be terminated and no order will be issued.

Click HERE for a fact sheet on today’s decision.

The U.S. Department of Commerce’s Enforcement and Compliance unit within the International Trade Administration is responsible for vigorously enforcing U.S. trade law and does so through an impartial, transparent process that abides by international law and is based on factual evidence provided on the record.

Foreign companies that price their products in the U.S. market below the cost of production or below prices in their home markets are subject to antidumping duties. Companies that receive unfair subsidies from their governments, such as grants, loans, equity infusions, tax breaks, or production inputs, are subject to countervailing duties aimed at directly countering those subsidies.


USITC Votes to Continue Investigations on Acetone from Belgium, Korea, Singapore, South Africa and Spain and Terminates the Investigation of Saudi Arabia - US International Trade Commission

The United States International Trade Commission (USITC) today determined that there is a reasonable indication that a U.S. industry is materially injured by reason of imports of acetone from Belgium, Korea, Singapore, South Africa, and Spain that are allegedly sold in the United States at less than fair value. The Commission terminated the antidumping duty investigation of acetone from Saudi Arabia.
Chairman David S. Johanson and Commissioners Irving A. Williamson, Meredith M. Broadbent, Rhonda K. Schmidtlein, and Jason E. Kearns voted in the affirmative on acetone from Belgium, Korea, Singapore, South Africa, and Spain. 

As a result of the Commission’s affirmative determinations, the U.S. Department of Commerce will continue with its antidumping duty investigations concerning imports of this product from Belgium, Korea, Singapore, South Africa, and Spain. Additionally the antidumping duty investigation of this product from Saudi Arabia is terminated.

The Commission’s public report Acetone from Belgium, Korea, Saudi Arabia, Singapore, South Africa, and Spain (Inv. Nos. 731-TA-1435-1440 (Preliminary), USITC Publication 4884, April 2019) will contain the views of the Commission and information developed during the investigations.

The report will be available after May 3, 2019; when available, it may be accessed on the USITC website at:  http://pubapps.usitc.gov/applications/publogs/qry_publication_loglist.asp.

 
FACTUAL HIGHLIGHTS
 
Acetone from Belgium, Korea, Saudi Arabia, Singapore, South Africa, and Spain
Investigation Nos.: 731-TA-1435-1440 (Preliminary) 

Product Description:  Acetone, also known as dimethyl ketone, propan-2-one, or 2-propanone, among other names, is an organic chemical with the formula (CH3)2CO. Acetone is used both as a chemical intermediate in the production of other chemicals (e.g., plastics and pharmaceuticals) and as a solvent.
 
Status of Proceedings:

1.            Type of investigation: Preliminary phase antidumping duty investigations.

2.            Petitioners: AdvanSix Inc., Parsippany, NJ; Altivia Petrochemicals, LLC, Haverhill, OH; and Olin Corporation, Clayton, MO.

3.            USITC Institution Date: Tuesday, February 19, 2019.

4.            USITC Conference Date: Tuesday, March 12, 2019.

5.            USITC Vote Date: Thursday, April 4, 2019.

6.            USITC Notification to Commerce Date: Friday, April 5, 2019. 

U.S. Industry in 2018:

1.            Number of U.S. producers: 7

2.            Location of producers’ plants: Alabama, New Jersey, Ohio, Pennsylvania, Texas, and West Virginia.

3.            Production and related workers: 560.

4.            U.S. producers’ U.S. shipments: $871.1 million.

5.            Apparent U.S. consumption: $1,053.8 million.

6.            Ratio of subject imports to apparent U.S. consumption: 17.3. 

U.S. Imports in 2018:

1.            Subject imports: $182.7 million.

2.            Nonsubject imports: $6.3 million.

3.            Leading import sources: Belgium, Korea, South Africa, and Spain.


CBP's Air and Marine Operations Stop $17 Million Drug Shipment - US Customs & Border Protection 

CORPUS CHRISTI, Texas—Agents from U.S. Customs and Border Protection (CBP) Air and Marine Operations (AMO) facilitated the seizure of over three tons of drugs last Friday.
 
Agents patrolling in a P-3 discovered a suspect panga-style vessel that was located in international waters off the coast of Central America. A U.S. Coast Guard law enforcement team aboard a U.S. Navy ship patrolling in the area boarded the abandoned “panga” and discovered 6,100 pounds of marijuana destined for the United States. The Coast Guard and Navy teams seized the narcotics and sank the vessel as a hazard to navigation.  

“Typically most of the illicit traffic in the Eastern Pacific Ocean is smuggling cocaine, but marijuana is also a major source of income for drug trafficking organizations,” said Director of Air and Marine Operations Bob Blanchard. “The important thing is that our agents are there to stop these harmful drugs from getting to our streets.”
 
The National Air Security Operations Center—Corpus Christi is a division of Air and Marine Operations and operates the Lockheed P-3 Orion conducting counter-drug patrol missions over the Eastern Pacific Ocean and the Caribbean Sea. Together with the National Air Security Operations Center in Jacksonville, Florida, U.S. Customs and Border Protection P-3 crews seized or disrupted 261,939 pounds of cocaine in 2018.
 
The mission of U.S. Customs and Border Protection, Air and Marine Operations is to serve and protect the American people. Air and Marine Operations applies advanced aeronautical and maritime capabilities and employs its unique skill sets to preserve America’s security interests.
 
With 1,800 federal agents and mission support personnel, 240 aircraft and 300 marine vessels operating throughout the United States, Puerto Rico, and U.S. Virgin Islands, Air and Marine Operations uses its sophisticated fleets to detect, sort, intercept, track and apprehend criminals in diverse environments at and beyond U.S. borders.


U.S. Department of Commerce Issues Affirmative Preliminary Determination in the Countervailing Duty Investigation of Imports of Refillable Stainless Steel Kegs from China - U.S. Department of Commerce

Today (4/1/19), the U.S. Department of Commerce announced the affirmative preliminary determination in the countervailing duty (CVD) investigation of imports of refillable stainless steel kegs from China, finding that exporters received countervailable subsidies ranging from 15.78 to 144.30 percent.

As a result of today’s decision, Commerce will instruct U.S. Customs and Border Protection to collect cash deposits from importers of refillable stainless steel kegs from China based on these preliminary rates.

In 2017, imports of refillable stainless steel kegs from China were valued at an estimated $18.1 million.

The petitioner is American Keg Company, LLC (Pottstown, PA).

The strict enforcement of U.S. trade law is a primary focus of the Trump Administration. Since the beginning of the current Administration, Commerce has initiated 157 new antidumping and countervailing duty investigations – this is a 283 percent increase from the comparable period in the previous administration.

Antidumping and countervailing duty laws provide American businesses and workers with an internationally accepted mechanism to seek relief from the harmful effects of the unfair pricing of imports into the United States. Commerce currently maintains 472 antidumping and countervailing duty orders which provide relief to American companies and industries impacted by unfair trade.

Commerce is currently scheduled to announce its final determination on or about August 13, 2019.
If Commerce makes an affirmative final determination, the U.S. International Trade Commission (ITC) will be scheduled to make its final injury determination on or about September 26, 2019. If Commerce makes an affirmative final determination in this investigation and the ITC makes an affirmative final injury determination, Commerce will issue a CVD order. If Commerce makes a negative final determination or the ITC makes a negative final determination of injury, the investigation will be terminated and no order will be issued.

Click HERE for a fact sheet on today’s decision.

The U.S. Department of Commerce’s Enforcement and Compliance unit within the International Trade Administration is responsible for vigorously enforcing U.S. trade law and does so through an impartial, transparent process that abides by international law and is based on factual evidence provided on the record.


Wisconsin Poaching Scheme Exposed - Fish & Wildlife Service

Quality hunting opportunities are an important part of the American conservation legacy. We at the U.S. Fish and Wildlife Service, in conjunction with our state counterparts, provide the sound science that supports healthy wildlife populations and also fight poaching and other kinds of wildlife crime to keep hunting viable now and into the future. Learn more about one recent investigation that put an end to a poaching scheme in Wisconsin.

Four long-time hound hunters who had enjoyed decades of running their dogs in pursuit of bear, mountain lion, bobcat and other wildlife are now branded as poachers and have lost their hunting privileges worldwide, some for up to four years. While these species are legal in many instances to hunt within state and tribal hunting regulations, these bad actors stepped outside the bounds of legal hunting. Crossing that line does a disservice to hunters and wildlife enthusiasts alike.

United States Attorney for the Western District of Wisconsin Scott C. Blader announced on February 26, 2019 that four Wisconsin men were convicted of crimes related to an illegal mountain lion hunt in Montana and conspiring to obstruct a federal grand jury investigation into their crimes. The violators were Darren Johnson, age 52 of Deer Park; David Johnson, age 31 of Barnes (no relation); Robert Peters, age 53 of Turtle Lake and Steven Reindahl, age 55 of Turtle Lake.

The subjects were all charged with Lacey Act violations in addition to other charges. The Lacey Act was applied in this case because the violators broke existing state laws and crossed from one state to another with their illegal bounty.

When the Lacey Act was passed by Congress in 1900, it became the first federal law to protect wildlife. More than 100 years later, it still imposes civil and criminal penalties for the illegal trade of animals and plants. Today, it also regulates the import of any species protected by international or domestic law and prevents the spread of invasive species. By enforcing this law, we help ensure sustainable wildlife populations for ethical hunters.

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