On September 20, 2021, the U.S. Department of Commerce (“Commerce”) published a final rule codifying numerous changes – both substantive and procedural in nature – to certain portions of the body of regulations governing antidumping and countervailing duty proceedings.  Regulations To Improve Administration and Enforcement of Antidumping and Countervailing Duty Laws, 86 Fed. Reg. 52,300 (Dep’t Commerce Sept. 20, 2021) (“Final Rule”).  The rule revisions constitute the first major overhaul of the AD/CVD regulations in over 20 years and were several years in the making.  That Commerce’s work on and ultimate implementation of these revisions spanned multiple presidential administrations is a testament to the apolitical nature of the effort and its importance to the good governance of U.S. trade laws.

Commerce first published a proposed rule in August 2020, inviting public comment and allowing 30 days for initial comments and 14 days for rebuttal submissions.  Regulations To Improve Administration and Enforcement of Antidumping and Countervailing Duty Laws, 85 Fed. Reg. 49,472 (Dep’t Commerce Aug. 13, 2020) (“Proposed Rule”).  In response to the Proposed Rule, Commerce received 37 sets of comments and 17 rebuttal submissions from interested parties, including domestic producers, exporters, importers, surety companies, and foreign governments.  Given the scope and significance of the Proposed Rule most submissions were submitted on behalf of formal trade associations or informal groups of companies, or law firms, including Kelley Drye, representing the general interests of their client base and providing input based on extensive practitioner experience.

The modifications proposed and ultimately adopted by Commerce were largely expected and codified agency practice as it has developed over many years, in a number of increasingly important areas.  As Commerce explains:
Continue Reading Commerce Publishes Long-Awaited Changes to AD/CVD Regulations

Today, the Department of Defense (“DoD”) published in the Federal Register a request for comments on risks in the supply chain for strategic and critical materials. DoD’s request stems from an Executive Order signed in February by President Biden, which directed the DoD and three other federal agencies to closely examine America’s supply chains in

Thursday, October 10, 2019
12:00 PM – 1:00 PM

Many companies are looking for opportunities to reduce or eliminate duties on products they import.  In 2015, Congress passed legislation codifying a duty reduction process, known as the Miscellaneous Tariff Bill (MTB), that reduces duties assessed on more than a thousand imported raw materials and intermediate

The United States Court of International Trade recently overturned a U.S. Customs and Border Protection (CBP) denial of a protest, in which Quaker Pet Group, LLC contested CBP’s classification of its pet carriers.  The five pet carriers at issue in Quaker Pet Group, LLC v. United States, Slip Op. 18-9 (Ct’ Intl. Trade 2018) are used to carry cats, dogs or other pets and are made of mesh and cloth.  CBP classified the carriers under Harmonized Tariff Schedule of the United States (HTSUS) subheading 4202.92.30, a provision which covers “travel, sport and similar bags” made of textile material that are designed for “carrying clothing and other personal effects during travel.” 
Continue Reading CIT Overturns CBP: Pets are not “Items or Personal Effects”

Ahead of talks with Japanese Prime Minister Shinzo Abe scheduled for this week, President Trump told a group of governors and lawmakers in a meeting on Thursday, April 12th that the United States was looking to rejoin the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“TPP”).  President Trump withdrew from the TPP in January, 2017, just days after his inauguration, calling the agreement a “disaster.”

On Friday April 13th, however, President Trump repeated his previous stipulation that the United States would “only join {the TPP} if the deal were substantially better than the deal offered to {President} Obama.”  He explained that, “{the United States} already {has} BILATERAL deals with six of the eleven nations” in  the TPP, and we “are working to make a deal with the biggest of those nations, Japan, who has hit us hard on trade for years!”
Continue Reading Trump Reconsiders TPP Stance, May Have Renewed Interest in Multilateral Agreement

On February 21, the final version of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”) was released ahead of its official signing, which is scheduled for March 8, 2018.  The CPTPP reduces tariffs between 11 nations: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. The economies of these nations together account for more than 13% of the total global GDP, or 10 trillion U.S. dollars.

New Zealand Trade Minister David Parker, in a February 21, 2018 news conference, stressed the importance of the deal “because of the growing threats to the effective operation of the World Trade Organization rules.”  Steven Ciobo, Australia’s Minister for Trade, also praised the deal telling Reuters that, “the TPP-11 will help create new Australian jobs across all sectors – agriculture, manufacturing, mining, services – as it creates new opportunities in a free trade area that spans the Americas and Asia.”

The United States was a member state of the predecessor to the CPTPP – the Trans Pacific Partnership (“TPP”) – which was negotiated under former
Continue Reading Will the U.S. Re-Join the (CP)TPP?

On January 12, 2018, Australia brought a historical first WTO trade dispute against Canada.  The request for consultations alleges that the Canadian Government and the Canadian provinces of British Columbia (“B.C.”), Ontario, Quebec and Nova Scotia discriminated against imported Australian wine by maintaining discriminatory trade measures governing  the sale of wine.  The alleged discriminatory measures include:  distribution areas, licensing and sales measures (i.e., product mark-ups), market access and listing policies, and duties and taxes applied at the federal and provincial level. Pursuant to WTO rules, the parties have 60 days to settle the dispute after which time Australia may request adjudication before a WTO panel.

Australian exports of bottled wine to Canada declined by nearly  half between 2007 and 2016.  Australia Trade Minister Steven Ciobo discussed the request for consultations and Australian wine
Continue Reading Wine Wars: Australia takes Canada to WTO Alleging Discriminatory Rules Governing Wine Sales

Earlier this month, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) denied an appeal by Capella Sales & Services Ltd., an importer of aluminum extrusions from China, in which the company challenged the countervailing duty margin applied to its entries at liquidation, arguing that a lower rate should have been applied by U.S. Customs and Border Protection.

Capella did not participate in U.S. Department of Commerce’s (“Commerce”) 2011-2012 administrative review of aluminum extrusions from China.  As a result, its entries were subject to the 374.15% “all others” rate under the countervailing duty order.  In connection with other litigation, the 374.15% “all others” rate was reduced to 7.37% in October 2015 based on challenges brought by several other importers of aluminum extrusions. 
Continue Reading Federal Circuit Denies Lower Duty Rate for Chinese Aluminum Extrusion Importer

As the fourth round of NAFTA negotiations were completed in Washington on Tuesday, October 17, 2017, significant new obstacles to the trade talks are emerging.  As a result, the fifth round of talks has been postponed until mid-November.

Specifically, Canada and Mexico have rejected the U.S.’s proposals on the elimination of NAFTA dispute panels in AD/CVD decisions, dairy, automotive content, government procurement, country-specific rule of origin rules, and a sunset clause.

U.S. Trade Representative Lighthizer, Mexican Economy Minister Guajardo, and Canadian Foreign Minister Freeland noted in a joint statement that the extended timelines provide the countries
Continue Reading New Obstacles Emerge in NAFTA Negotiations

On September 28, President Donald Trump announced his nomination of two Commissioners to the United States International Trade Commission.  Dennis M. Devaney of Michigan for the remainder of a nine-year term, expiring June 16, 2023 and Randolph J. Stayin of Virginia for the remainder of a nine-year term expiring June 16, 2026.

Mr. Devaney and Mr. Stayin were nominated to fill the Commissioner positions of Commissioners Kieff and Pinkert, who left the ITC earlier this year.  President Trump’s two nominations were made with the ITC operating with only four out of six Commissioners and experiencing a historically high Section 337 caseload.
Continue Reading Trump Announces Nomination of Two ITC Commissioners