International Trade > AG Trade Law
17 May '19

At the end of 2018, the U.S. Court of International Trade (CIT) issued an opinion in One World Techs., Inc. v. United States. In that decision, Judge Choe-Groves concluded that U.S. Customs and Border Protection (CBP) improperly excluded from importation one entry of a redesigned garage door opener imported by One World Technologies, Inc. She determined that One World’s redesigned garage door opener did not infringe U.S. Patent 7,161,319, which formed the basis of an exclusion order issued by the U.S. International Trade Commission (ITC) pursuant to Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337), because CBP had misconstrued certain claim terms in that patent. In so doing, Judge Choe-Groves construed the claims of the ’319 patent, an exercise rarely undertaken in prior disputes before the CIT. As a result of her conclusion, Judge Choe-Groves issued an injunction preventing CBP from excluding the entry at issue. Our earlier coverage of that decision provides additional details.

Read More

25 Apr '19

In a variety of contexts, U.S. government agencies regulating international trade and the cross-border movement of goods and services possess significant civil and criminal penalty authority. For example, the primary agency at the U.S. border and ports of entry, U.S. Customs and Border Protection (CBP), typically relies on a civil penalty statute and its implementing regulations to assess monetary penalties for material false statements or omissions in the importing process, or in some cases, the exporting process for certain origin declarations pursuant to free trade agreements. Congress has authorized CBP to impose civil penalties on any person who, “by fraud, gross negligence, or negligence . . . enter{s}, introduce{s}, or attempt{s} to enter or introduce any merchandise into the commerce of the United States” by means of material false statements or omissions. 19 U.S.C. § 1592(a)(1). The relevant statute requires CBP to initiate the penalty process administratively. The process includes petitioning rights, and the agency is required to provide notice of the proposed penalty amount and the culpability level (i.e., fraud, gross negligence or negligence). Id. § 1592(b)(1)(A) and (c).

Read More

16 Apr '19

In late March, the U.S. Court of International Trade (CIT) issued a highly anticipated opinion addressing Section 232 of the Trade Expansion Act of 1962. Section 232 authorizes the President to take measures against imports found to threaten to impair the national security of the United States. Section 232 sets no limit on what measures the President may take against the imports, so long as the chosen remedy addresses imports.

Read More

09 Apr '19

Let’s say you import widgets that potentially fall within the scope of an antidumping or countervailing duty order. You wonder in good faith whether the U.S. Department of Commerce (Commerce) may subject the imported widgets to antidumping or countervailing duties, perhaps because the scope of the relevant order eschews clarity. For a variety of reasons, you decide not to file a formal scope ruling request with Commerce. (As a small business, maybe you lack the financial means to do so.) In the meantime, someone else imports substantially identical widgets, has the same concerns, formally raises those concerns in a scope ruling request with Commerce, has a ruling issued against it and files suit at the U.S. Court of International Trade (CIT) to challenge the ruling. May you join the lawsuit and challenge the ruling, even if it specifically addresses the other importer’s widgets and not yours? Yes, says the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).

Read More

01 Apr '19

The U.S. Constitution confers authority on Congress to “ordain and establish” courts “inferior” to the Supreme Court. When Congress exercises its power under the Constitution and creates a lower court, it identifies a class of cases that the court may hear. We commonly refer to the class of cases a court may hear as its “subject matter jurisdiction.”

Read More

20 Mar '19

On March 22, 2019, the U.S. Environmental Protection Agency (EPA) will begin to implement its own formaldehyde emission standards as required under the Formaldehyde Standards for Composite Wood Products Act, Title VI to the Toxic Substances Control Act.i For nearly a decade since the passage of Title VI, EPA has relied on California to set the standards, with EPA deeming any goods certified as compliant by the California Air Resources Board as federally compliant.

Read More

19 Mar '19

Over the last decade, the U.S. Department of Commerce and U.S. Customs & Border Protection (CBP) have stepped up their enforcement activities. Those efforts have resulted from additional appropriations and new investigatory tools bestowed by Congress, as well as the more stringent application of existing enforcement mechanisms by the agencies themselves.

Read More

11 Mar '19

Few international trade disputes make their way to the Supreme Court of the United States (SCOTUS). In the vast majority of these appeals, SCOTUS simply denies the petition for certiorari without comment. Indeed, SCOTUS last addressed the merits of a trade appeal over a decade ago, when it upheld the U.S. Department of Commerce’s interpretation of an antidumping statute. See United States v. Eurodif S.A., 555 U.S. 305 (2009).

Read More