The Southern New York U.S. District Court ordered three importers to pay nearly $22.5 million to the government of South Africa for Lacey Act violations stemming from the over-quota harvest of rock lobster. According to the Justice Department, the restitution order is the largest in a Lacey Act case in history. It had been the subject of a 2011 2nd U.S. Circuit Court of Appeals ruling that found restitution could be ordered in Lacey Act cases. The three men also served prison terms and forfeited other money in connection with the convictions.
The U.S. Court of Appeals for the D.C. Circuit ruled the Export-Import Bank failed to fully justify its economic impact loan procedures, reversing the decision of the U.S. District Court in a case against the Bank brought by Delta Airlines and the Air Line Pilots Association. The original suit, filed April 3, alleges the Bank’s loans for aircraft exports to foreign airlines harm U.S. airlines and their employees (see 13040523). The appeals court’s June 18 ruling agreed that the Bank failed to “reasonably explain” its justifications for part of its loan procedures, required under the Bank Act: the public law authorizing Ex-Im. The Act requires Ex-Im to determine how any potential loan might affect American industry and jobs. The Bank failed to explain its “apparent conclusion that loans and loan guarantees to help a foreign company provide a service (as opposed to a good) can never cause adverse effects to U.S. industries and U.S. jobs,” the Appeals Court decision said. The decision requires Ex-Im to explain how its economic impact procedures square with the Bank Act, “adequately consider and explain any adverse effects” of the particular loans Delta took issue with, or take any other action Ex-Im deems appropriate to comply with the Bank Act. The June 18 ruling did not vacate any of the Bank’s actions related to the case. Ex-Im will now be required to "take the complaints of industry participants seriously before proceeding with potentially harmful subsidies to foreign airlines," said Delta in a statement on the decision (here).
Agreements to limit rail carrier liability must be explicit and in writing, and not just adopted by reference in a bill of lading, said the Fourth U.S. Circuit Court of Appeals, as it sent back down a lower court’s ruling. The Eastern North Carolina District Court had ruled that CSX was only liable for $25,000 of the $550,000 in damage to shipper ABB’s electrical transformer that occurred in transit from St. Louis to Pittsburgh. The bill of lading associated with the shipment had been drafted by ABB instead of CSX, and in any case referenced a CSX “tariff” that limited carrier liability to $25,000, the district court reasoned. Therefore, it met an exception to the Carmack Amendment’s strict requirement for rail carriers to bear full liability for damages to goods in transit. But the appeals court said the identity of the drafter of the bill of lading is irrelevant for Carmack Amendment purposes, and incorporation of a tariff by reference does not meet the written agreement standard for waiving liability set forth in the law.
The U.S. Court of Appeals for the Federal Circuit overturned an International Trade Commission decision to end a Section 337 patent investigation of infringement by LG so that the case could go to arbitration with patent holder InterDigital. LG had said it held a license for the patented technology at issue, and the commission found that a plausible basis for arbitration. Both the ITC and LG argued that the appeals court had no jurisdiction to hear the case, because termination for arbitration is not listed as subject to appeal under the governing statute, 19 USC 1337. But the appeals court found that termination of a Section 337 investigation for arbitration is in effect an appealable final determination, even though it isn’t enumerated in the statute. Turning to whether LG had grounds to request arbitration, the appeals court found that the portion of the agreement governing the license on 3G technology had expired, so LG had no right to assert a right to arbitration over the license.
U.S. Court of Appeals for the D.C. Circuit overturned a lower court ruling June 7 that would have compelled the U.S. Trade Representative to release a white paper describing the U.S. interpretation of the phrase “in like circumstances” for the purposes of national treatment and most favored nation free trade agreement provisions. The document was used in negotiations for the ill-fated Free Trade Agreement of the Americas. The D.C. District Court had said the white paper does not meet a Freedom of Information Act exemption for documents related to national defense foreign policy, because the USTR did give a good enough explanation of why release of the white paper would have created a foreign policy risk. But on appeal, the D.C. Circuit said USTR’s explanation that release of the document would harm future negotiations was plausible, and reversed.
The Court of International Trade again remanded the final results from the 2007-08 antidumping administrative review of tapered roller bearings from China (A-570-601). The court had remanded in late 2011 on Commerce’s surrogate values used to determine Peer Bearing Company-Changshan’s (CPZ) AD rate, as well as its country of origin determination that finished bearings processed in and exported from Thailand from Chinese-origin unfinished bearings are subject merchandise (see 11112218). On remand, CIT sustained the agency’s redeterminations of the surrogate values at issue, which caused CPZ’s AD rate to fall from 24.62 to 7.37 percent. But it rejected Commerce’s insistence on continuing to find the country of origin for the Thai-finished roller bearings as China and not Thailand.
The Court of International Trade remanded parts of the 2008-09 countervailing duty administrative review on citric acid from China (C-570-938) related to Commerce’s calculation of inputs for less-than-adequate remuneration (LTAR) subsidies for RZBC. The court found that Commerce didn’t adequately explain its non-decision on a steam coal LTAR subsidy, and didn’t consider some evidence on pricing benchmarks it used to measure LTAR subsidy amounts.
The 30-day period to challenge scope rulings in court begins on the date the scope ruling is mailed by the Commerce Department, and is not triggered by email communications, said the Court of International Trade as it dismissed Medline Industries’ challenge. Medline had filed suit after Commerce emailed its lawyer a copy of the adverse scope ruling on wooden bedroom furniture from China. But the snail mail scope ruling from a month later actually triggered the period for filing suit, even though Commerce had allegedly misrepresented that no physically mailed scope ruling would be forthcoming. The case will proceed regardless, as Medline filed a separate challenge following its second receipt of the scope ruling. The company expressed concern, however, at the cost of having to appeal this dismissal of its first suit to protect itself from a jurisdictional challenge.
The Court of International Trade again remanded the final results of the 2008-09 antidumping duty administrative review on folding metal-top ironing tables from China (A-570-888). CIT’s first remand in August, which was not published as a slip opinion, focused on Commerce’s cotton fabric surrogate value calculation, financial statement selection, and brokerage and handling calculations for respondents Since Hardware and Foshan Shunde. This time, the court sustained some elements of Commerce’s remand redetermination, but again remanded for Commerce reconsideration of financial statement selection and brokerage and handling calculations.
A Chinese national pleaded guilty to attempting to export five tons of weapons-grade carbon fiber to China, a plot discovered through undercover work by U.S. agents, the Department of Justice announced May 30. Lisong Ma, 34, faces up to 20 years in prison, forfeiture and a $1 million fine. In February, Ma emailed an undercover agent and indicated he was interested in acquiring several types of high-grade carbon fiber, then attempted to negotiate the purchase of five tons of carbon fiber, the DOJ said in a statement. Such fiber is under Commerce Department jurisdiction; its two main applications are in specialized technology and in general engineering and transportation. The material sought by Ma is used in military aircraft and unmanned aerial vehicles.