Showing posts from February, 2023

Cyber Power Decision Keeps the Lights On Origin

The Court of International Trade has issued the much anticipated (at least by me) decision on the merits in Cyber Power Systems (USA) Inc. v. United States . It's a bit of a roller coaster ride. The plaintiff clearly hits some bumps along the way, but there is a thrilling conclusion. So, buckle up. The case is about the country of origin of five models of uninterruptible power suppliers ("UPS") and one surge protector. The UPS is essentially a glorified backup battery for computers and other devices. In the event of a power failure, the UPS kicks in to power the device and may assist in a "graceful shutdown." Modern UPS include printed circuit board assemblies that monitor the battery to ensure it is fully charged, monitor the available supply of electricity, switch to the battery when needed, provide status reports and other functions. All of that takes some firmware stored in chips on the boards. The surge protector is a simpler, but still electronic device, t

CIT to Meyer: Still No First Sale for Value

Remember Meyer Corp. v. United States ? We discussed the original CIT decision in this post from 2021. That decision caused many quizzical discussions among trade nerds about whether the fact that a multi-tiered sale starts in China, a non-market economy, undermines an importer's ability to claim valuation for duty on the basis of the first sale. The Court of International Trade suggested that the Court of Appeals for the Federal Circuit might have to clarify. If none of this seems familiar to you, go back and read the earlier post. In August of 2022, the Federal Circuit provided that clarification . That must have happened while I was in the "Blog Black Hole" of 2021-2022, which I am trying to dig out of now (you may have noticed). The decisive part of that decision states: The trial court misinterpreted our decision in Nissho Iwai to require any party to show the absence of all “distortive nonmarket influences.” There is no basis in the statute for Customs or the cour

PrimeSource Overturned at Federal Circuit

Section 232 of the Trade Expansion Act of 1962 allows the President, following an investigation by the Department of Commerce, to adopt a plan of remedial action to protect the national security from harm caused by imports. The statute has several procedural requirements including that the Commerce Department complete its investigation within 270 days and that the President decide within 90 days of receiving the report whether the President concurs in Commerce's finding. If so, the President must come up with a plan of action, including the steps that "must be taken to adjust the imports of the article and its derivatives so that such imports will not threaten to impair the national security." For this discussion, the key point is that the President must implement the plan within 105 days of the findings in Commerce's report. On March 8, 2018, President Trump imposed 25% duties on listed steel products in an effort to ensure that U.S. steel production was operating

Acquisition 362 and Protests of Countervailing Duties

Welcome back to what I hope is a more consistent flow of updates. I have a couple in the hopper, so come back soon. Importers of goods subject to antidumping and countervailing duties often find themselves dealing with unexpected compliance issues. Acquisition 362, LLC v. United States , a recent decision from the Court of Appeals for the Federal Circuit, is a good example of how this can go sideways.  Aquisition is an importer of tires from China that are subject to a countervailing duty order. As a result, Acquisition deposited CV duties at the rate of 30.61%, which was the rate applicable to tires from "all-other" producers and exporters at the time of entry. When Commerce instituted a review of the deposit rate, it instructed Customs to continue to suspend the liquidation of entries from companies participating in the review, including a company known as Shandong Zhongyi, which was Aquisition's nominal suppler.  Unfortunately for Aquisition, Shandong withdrew from the