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.
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).
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.”
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.
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.
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).
The composition of the U.S. Court of International Trade (CIT) has changed dramatically over the last decade. Outstanding vacancies have prevented the CIT from operating with its full complement of judges for nearly five years. Although the Senate likely will confirm President Trump’s two nominees to the CIT, more change is afoot.
A new year brings new decisions. In the first opinion issued in 2019 by the U.S. Court of International Trade (CIT), Judge Choe-Groves addresses the application of a hot-button issue—the U.S. Department of Commerce’s recently expanded “particular market situation” authority—through a combination of procedure and record review.