CIT Wrongly Imposed the Non-Market Economy Test in Connection with First Sale Transactions - Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
In Meyer Corporation v. US., the importer sought to establish the dutiable value of its imported cookware using the “first-sale” price from the manufacturer to the distributor. The Court of International Trade (“CIT”) required Meyer to prove not only that the sales were conducted at arms-length but were also unaffected by China’s status as a non-market economy. Finding that the importer did not prove the absence of “non-market influences,” the CIT did not allow the importer to rely on the first-sale prices.
The Court of Appeals for the Federal Circuit (“CAFC”) overruled the CIT and held that there is no basis in the value statute for Customs or the court to consider the effects of a nonmarket economy on transaction value. The Court noted that the statute requires only that the goods are clearly destined for export to the United States and “the relationship between [the] buyer and seller did not influence the price actually paid or payable.” The Court vacated and remanded the case to the trial court to reconsider Meyer’s qualifications for first-sale duty savings treatment.
The CAFC decision is significant as it resolves an open question regarding the valuation of goods imported from China (and other non-market economies) and the viability of the first sale duty savings program in connection with those purchases.
If you would like additional information about this case or the first sale duty savings rule, please contact our office.
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Federal Register Notices:
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled Into Modules, From the People's Republic of China: Notice of Amended Final Results of Countervailing Duty Administrative Review; 2019
• Sales at Less Than Fair Value; Determinations, Investigations, etc.: Certain Preserved Mushrooms From the Netherlands, Poland, and Spain: Postponement of Preliminary Determinations in the Less-Than-Fair-Value Investigations
• Application for Duty Free Entry of Scientific Instruments: For Inspiration and Recognition of Science and Technology (FIRST), et. al., Application(s) for Duty-Free Entry of Scientific Instruments
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Corrosion-Resistant Steel Products From India, Italy, the People's Republic of China, the Republic of Korea, and Taiwan: Continuation of the Antidumping and Countervailing Duty Orders
• Determination of Sales at Less Than Fair Value: Sodium Nitrite From India: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures
• Sales at Less Than Fair Value; Determinations, Investigations, etc.: Barium Chloride From India: Preliminary Negative Determination of Sales at Less Than Fair Value, Postponement of Final Determination
• Investigations; Determinations, Modifications, and Rulings, etc.: Notice of a Commission Determination Not To Review an Initial Determination Terminating the Investigation Based on a Settlement; Termination of the Investigation; Certain Barcode Scanners, Scan Engines, Mobile Computers With Barcode Scanning Functionalities, Products Containing the Same, and Components Thereof
• Investigations; Determinations, Modifications, and Rulings, etc.: Certain Chocolate Milk Powder and Packaging Thereof; Notice of Request for Submissions on the Public Interest
• Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Sulfanilic Acid From India: Rescission of Countervailing Duty Administrative Review; 2021
• Polyester Staple Fiber From the Republic of Korea and Taiwan: Continuation of the Antidumping Duty Orders
• Certain Cold-Rolled Steel Flat Products From the People's Republic of China and the Republic of Korea: Continuation of Countervailing Duty Orders
• Investigations; Determinations, Modifications, and Rulings, etc.: Sodium Nitrite From Russia
• Certain Laparoscopic Surgical Staplers, Reload Cartridges, and Components Thereof; Notice of Commission Determination To Institute a Rescission Proceeding; Rescission of the Remedial Orders; Termination of the Rescission Proceeding
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Harris Administration Announces Funding for 166 Projects to Modernize Transportation Across the Country and Make it More Affordable, Increase Safety and Strengthen Supply Chains - Department of Transportation
President Biden’s Bipartisan Infrastructure Law more than doubles the funding for popular RAISE Program this year
TUCSON, ARIZONA – Today, U.S. Secretary of Transportation Pete Buttigieg announced that the Biden-Harris Administration has awarded more than $2.2 billion from the Rebuilding American Infrastructure with Sustainability and Equity (RAISE) program to help urban and rural communities move forward on projects that modernize roads, bridges, transit, rail, ports, and intermodal transportation and make our transportation systems safer, more accessible, more affordable, and more sustainable. This year’s allocations include more than $2.2 billion thanks to the President’s Bipartisan Infrastructure Law, which provides an additional $7.5 billion over five years for the program to help meet the strong demand to help projects get moving across the country.
“We are proud to support so many outstanding infrastructure projects in communities large and small, modernizing America’s transportation systems to make them safer, more affordable, more accessible, and more sustainable,” said U.S. Transportation Secretary Pete Buttigieg. “Using funds from President Biden’s Bipartisan Infrastructure Law, this year we are supporting more projects than ever before.”
Projects were evaluated on several criteria, including safety, environmental sustainability, quality of life, economic competitiveness and opportunity, partnership and collaboration, innovation, state of good repair, and mobility and community connectivity. Within these areas, the Department considered how projects will improve accessibility for all travelers, bolster supply chain efficiency, and support racial equity and economic growth – especially in historically disadvantaged communities and areas of persistent poverty.
Today, Secretary Buttigieg is in Tucson and Phoenix where he is visiting two projects that are receiving RAISE awards. Later this month the Secretary and other senior USDOT officials will fan out across the country to visit additional sites that are receiving RAISE awards to highlight the ways that the President’s Bipartisan Infrastructure Law is helping invest in communities and get important infrastructure projects moving in communities large and small.
Listed here are examples of projects that are representative of the overall grants that were awarded:
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OTEXA: Announcements - Office of Textile & Apparel
[08/15/2022] – The International Trade Administration (ITA) has developed an interactive training course to help U.S. firms and the public understand the laws and regulations that prevent goods made with forced labor from entering the United States. See the interactive training entitled Human Trafficking: Forced Labor in Global Supply Chains on ITA’s Forced Labor in Supply Chains webpage.
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Back-to-School: Business and Law Enforcement Team Up to Protect Students, Parents, and Teachers from Counterfeit Goods - U.S. Customs & Border Protection
WASHINGTON — U.S. Customs and Border Protection (CBP), along with the U.S. Chamber of Commerce are joining forces to educate students, parents, and teachers about the dangers of counterfeit goods and how to spot them, just in time as kids prepare to go back to school.
This joint effort highlights the impacts counterfeit goods have on the economy as well as the health and safety of consumers and includes ten tips to “Shop Smart” for back-to-school basics.
As millions of American students return to the classroom, August is a busy time for parents and educators to stock up on everything they need for a successful school year. Unfortunately, it is also a busy time for scammers looking to cash in by selling fake and potentially dangerous counterfeit goods to unsuspecting consumers. As of August 2022, CBP has made almost 17,000 seizures of counterfeit goods worth an estimated $2.4 billion, had the goods been genuine. Seizures of these fake goods included consumer electronics, footwear, and wearing apparel to name a few.
“CBP works closely with our industry partners to alert shoppers to the dangers associated with the purchase of counterfeit goods and how to be a conscientious consumer,” said Deputy Executive Assistant Commissioner for CBP’s Office of Trade, John Leonard. “While the lure of a great deal is tempting, the consequences simply aren’t worth the risk. Only shop from sources you trust, especially when shopping online.”
Buying a substandard, fake good may save money in the short term, but when it breaks down quickly or becomes a safety hazard, costs to replace the product could increase substantially. Counterfeiters lure customers with convincing advertisements and low prices, but shoddy or potentially harmful products and materials are not worth the risk. Fake backpacks, pencils, and electronics threaten students’ safety and cost parents more money over time.
Leaders across the business community understand the dangers of counterfeits and are making big investments and taking bold actions to protect customers. For example, Nike Inc. donated proprietary technology to CBP via its Donations Acceptance Program to aid in authenticating a variety of its merchandise and prevent counterfeit products from entering the United States. However, businesses and CBP cannot do it alone. Counterfeit products cost the global economy over $500 billion a year. That is why the Chamber of Commerce is partnering with CBP to raise awareness nationwide to educate Americans about the dangers of counterfeits.
“Fake goods are a danger to American families, particularly children who are about to start another school year,” said Kasie Brill, Vice President for Brand Protection at the U.S. Chamber of Commerce Global Innovation Policy Center. “The U.S. Chamber encourages parents to use our ten tips to Shop Smart to protect their families from the dangers of counterfeit items.”
To get the word out, CBP and the Chamber of Commerce are taking to the airwaves in a nationwide campaign to educate back-to-school shoppers on the dangers of counterfeit goods.
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FTC Undertakes Inquiry into Commercial Surveillance Practices and Wants Your Insights - Federal Trade Commission
Commercial surveillance refers to the pervasive collection, tracking, and monetization of personal data. It’s an enterprise that has proven astonishingly lucrative for platforms and other businesses, but often thrives in the shadows without the knowledge of the consumers whose personal information is their stock-in-trade. The FTC has announced an Advance Notice of Proposed Rulemaking – and a September 8, 2022, virtual public forum – to take a closer look into harmful commercial surveillance practices and lax data security. We want your input into the prevalence of those practices and ways to address potential harms to consumers.
Consider cookies that track people’s every online move and apps that collect vast quantities of data unrelated to the service they provide. Next, factor in the extent to which companies compile information about people’s location, purchases, browsing history, race, gender, or age in critical areas like health, finance, and education – data deserving of exacting privacy and security measures. Now overlay those collection practices with the murky but flourishing marketplaces where that information is combined, shared, and monetized, and the contours of the issue begin to take shape.
For decades, the FTC has used Section 5’s prohibition on unfair or deceptive practices to challenge a wide variety of privacy- and security-related conduct. For example, we’ve brought cases against companies that have shared health-related data with third parties, disclosed consumers’ financial information in retaliation for negative online reviews, sold “stalkerware” that let buyers secretly monitor another person’s online activity or physical location, and created and sold advertising dossiers of individual consumers’ TV-viewing habits. We’ve also taken action against companies whose lax security practices allowed third parties to steal – and misuse – consumers’ personal information.
But is law enforcement enough to protect consumers? The explosive growth in the information collection economy suggests it’s time to take an in-depth assessment of how commercial surveillance affects the day-to-day lives of consumers and whether the current consumer protection set-up is sufficient to protect them from harm.
Read the Advance Notice for Proposed Rulemaking for details about the topics on the table. As the FTC undertakes this inquiry, we want your input. Once the Advance Notice runs in the Federal Register, you’ll have 60 days file a public comment. And follow the Business Blog for more information about the September 8th virtual public hearing. ________________________________________________________________________________
Defendant in ‘Grandparent Scam’ Network Sentenced for RICO Conspiracy Targeting Elderly Americans - Department of Justice
A California man was sentenced today to 46 months in prison for his participation in a large-scale “grandparent scam.”
According to court documents, Jack Owuor, 25, of Paramount, California, was part of a network of individuals who, through extortion and fraud, induced elderly Americans across the United States to pay up to tens of thousands of dollars each to purportedly help their grandchild or other loved one. On March 9, 2022, Owuor pleaded guilty to one count of conspiracy under the Racketeer Influenced and Corrupt Organizations (RICO) Act.
Members of the network contacted elderly Americans by telephone and impersonated a grandchild, other close relative, or friend of the victim. They falsely convinced the victims that their relatives or friends were in legal trouble and needed money to pay for bail, for medical expenses for car accident victims, or to prevent additional charges from being filed. The defendants and their co-conspirators then received money from victims via various means, including in-person pickup, the mail, and wire transfer, and then laundered the proceeds, including through the use of cryptocurrency. Owuor personally made cash pickups from numerous victims. Owuor also recruited and directed other members of the conspiracy.
“The Department of Justice’s Consumer Protection Branch will continue to pursue and prosecute groups that target elderly and vulnerable Americans through extortion, fraud, and impersonating their loved ones,” said Principal Deputy Assistant Attorney General Brian Boynton, head of the Justice Department’s Civil Division. “We are grateful to our partners at the U.S. Attorney’s Office for the Southern District of California and the FBI for their work to advance the department’s efforts against organized elder fraud, and to the San Diego County District Attorney’s Office.”
“Today’s sentence, including prison time, demonstrates the gravity of the defendant’s egregious behavior to steal from the elders of our community,” said U.S. Attorney Randy Grossman for the Southern District of California. “It is despicable that these fraudsters preyed on a grandparent’s care and concern for their loved ones to line their own pockets. This important effort to bring these unscrupulous wrongdoers to justice helps protect victims and send the message that crime doesn’t pay.”
“Owuor and the criminal enterprise he was a part of preyed upon our elderly population, defrauding some of our most vulnerable and often most trusting citizens,” said Special Agent in Charge Stacey Moy of the FBI’s San Diego Field Office. “Today’s sentencing demonstrates the effectiveness of San Diego’s Elder Justice Task Force and the criminals we can stop when working in tandem with our local, state, and federal law enforcement partners who make up this collaborative team. This coordinated response is paramount to addressing elder fraud and the task force will continue to aggressively investigate those who operate these criminal enterprises and seek justice for the elderly victims they intend to exploit.”
The FBI’s San Diego Field Office, North County Resident Agency investigated the case with critical assistance from investigators of the San Diego County District Attorney’s Office.
Trial Attorneys Lauren M. Elfner and Wei Xiang of the Civil Division’s Consumer Protection Branch and Assistant U.S. Attorney Oleksandra Johnson for the Southern District of California prosecuted the case.
The department’s extensive and broad-based efforts to combat elder fraud seek to halt the widespread losses seniors suffer from fraud schemes. The best method for prevention, however, is by sharing information about the various types of elder fraud schemes with relatives, friends, neighbors and other seniors who can use that information to protect themselves.
If you or someone you know is age 60 or older and has been a victim of financial fraud, help is available at the National Elder Fraud Hotline: 1-833-FRAUD-11 (1-833-372-8311). This Department of Justice hotline, managed by the Office for Victims of Crime, is staffed by experienced professionals who provide personalized support to callers by assessing the needs of the victim and identifying relevant next steps. Case managers will identify appropriate reporting agencies, provide information to callers to assist them in reporting, connect callers directly with appropriate agencies, and provide resources and referrals, on a case-by-case basis. Reporting is the first step. Reporting can help authorities identify those who commit fraud, and reporting certain financial losses due to fraud as soon as possible can increase the likelihood of recovering losses. The hotline is staffed seven days a week from 6:00 a.m. to 11:00 p.m. ET. English, Spanish and other languages are available.