Nils Andreas Boe

The case concerned whether export refunds received by a UK manufacturer under the European Economic Community's Common Agricultural Policy (CAP) for sugar used in confectionary products could be deducted from the cost of materials when calculating statutory cost of production for U.S. customs appraisal under former 19 U.S.C. § 1402(f). The importer sought to reduce dutiable value by the amount of the rebates, while Customs disallowed the deduction and the government counterclaimed that the payments constituted profit. The court held that the rebates could not be subtracted from the cost of materials or added as profit, because the statute fixes material costs at a specific pre-export time based on purchase prices in the ordinary course of business, and the CAP payments were separate governmental grants or subsidies received or receivable only upon export. Drawing on precedent involving drawback refunds, the court reasoned that post-manufacture refunds or subsidies fall outside the statutory elements and do not alter the appraised cost of production.

business & regulatorytaxesfederal power

This case concerns a challenge by Kyowa Gas Chemical Industry Co., Ltd. to a determination by the Department of Commerce's International Trade Administration (ITA) that its product Kyowaglas-XA falls within the scope of a 1976 antidumping finding on acrylic sheet from Japan, making it subject to duties under section 751 of the Tariff Act. The ITA concluded that the product was covered based on descriptions in the original petition and related materials without applying its usual additional criteria for scope clarification, such as physical characteristics, uses, purchaser expectations, and channels of trade. Kyowa argued that the ITA improperly expanded the finding to a new patented product without adequate analysis. The court held that in a section 1675(a) review, the ITA may clarify but not modify the scope of a prior finding, and its determination must be supported by substantial evidence from the record. Because the ITA provided no specific findings applying the relevant criteria to Kyowaglas-XA, the court remanded the matter for the ITA to consider all relevant evidence and make proper determinations.

business & regulatoryprocedure

This case concerned challenges to federal trade agency determinations that sorbitol from France was being sold in the U.S. at less than fair value and was causing material injury to domestic industries. Roquette contested the International Trade Administration's denial of an adjustment to U.S. purchase price for export refunds received on imported corn used in production, arguing the adjustment was required under 19 U.S.C. § 1677a(d)(1)(B), and also challenged the International Trade Commission's injury findings; intervenor Pfizer contested the negative injury finding for liquid sorbitol. On remand from an earlier court order, the ITC obtained additional data and found material injury to the crystalline sorbitol industry but none to the liquid sorbitol industry. The court upheld the ITA's refusal to grant the adjustment because the EC import levies and export refunds were not directly linked or dependent on one another, and it reviewed the ITC's product-specific injury analysis based on the administrative record.

business & regulatory

The case involved Freeport Minerals challenging the International Trade Administration's revocation of a 1973 antidumping duty order on elemental sulphur from Canada produced by Chevron, following an administrative review under 19 U.S.C. § 1675. The court dismissed the action, concluding it lacked subject matter jurisdiction because the suit was untimely under the review provisions of 19 U.S.C. § 1516a and because a prior judgment in Chevron Standard Ltd. v. United States had already affirmed the revocation after remand. The core reasoning was that the plaintiff's challenge constituted an impermissible collateral attack on a final court order, as res judicata bars relitigation of matters that were or could have been raised in the earlier proceeding.

business & regulatoryprocedure

The case involved the United States seeking to collect $13,700 in liquidated damages from a surety bond issued by St. Paul Fire and Marine Insurance Company and principal Keith W. Atkinson for imported automobiles that were not redelivered to customs custody after a demand. The court granted the plaintiff's motion for summary judgment against St. Paul, awarding the full amount plus post-judgment interest, while denying St. Paul's motion for judgment on the pleadings and dismissing its cross-claim against Atkinson for lack of jurisdiction. The decision rested on the finding that there were no genuine issues of material fact, that St. Paul had waived affirmative defenses such as regulatory noncompliance and statute of limitations by failing to plead them in its answer, and that the undisputed facts entitled the plaintiff to judgment as a matter of law.

business & regulatoryprocedure

The case involved a dispute over whether a plaintiff timely filed a summons in the Court of International Trade to contest the U.S. Customs Service's denial of a protest regarding customs duties. The plaintiff argued that it never received notice of the denial, which was mailed on September 10, 1979, and filed the summons 256 days later on May 23, 1980. The defendant moved to dismiss the protest from the action for exceeding the 180-day statutory limit under 28 U.S.C. § 2636(a). The court held that the summons was timely because evidence of non-receipt rebutted the presumption of mailing, and the defendant's affidavit failed to prove actual mailing due to inconsistencies. Therefore, the defendant's motion to sever and dismiss was denied.

procedurebusiness & regulatory

The case involved the tariff classification of embroidered cotton pillowcases imported into the United States after partial processing in China and finishing steps in Hong Kong. Customs officials assessed the merchandise at the higher column 2 duty rate of 90% ad valorem as a product of China under General Headnote 3(e) of the TSUS, which applies to goods imported directly or indirectly from communist countries. The importer contended that the cutting, scalloping, sewing, and packaging operations in Hong Kong made the pillowcases a product of that territory eligible for the lower column 1 rate of 34%. The court analyzed whether the Hong Kong processes sufficiently altered the goods' identity or character under the stricter origin rules for communist-country products, drawing on precedents requiring no material change or diversion in an intermediate country.

business & regulatorytaxes

The case involved Bethlehem Steel challenging the International Trade Administration's (ITA) determination that Spain's Desgravacion Fiscal a la Exportación (DFE) tax rebate program for steel exporters did not constitute a countervailable subsidy, even though the ITA had identified other subsidies and the International Trade Commission had found material injury to U.S. industry, leading to a countervailing duty order. The plaintiff filed its summons and complaint after publication of the duty order, seeking review under 19 U.S.C. § 1516a(a)(2)(A)(ii) and (B)(i). The court dismissed the action for lack of jurisdiction, holding that the ITA's DFE finding was a severable final negative determination reviewable only within thirty days of its own publication under § 1516a(a)(2)(A)(i) and (B)(ii), not after the subsequent order, and that the statutory time limits strictly govern waiver of sovereign immunity.

business & regulatoryprocedure

This case involved Schaper Manufacturing Co., the owner of copyrights in toy vehicles recorded with U.S. Customs, challenging Customs' decision to release bonds it had posted to exclude imported shipments suspected of containing piratical copies. Customs had detained the goods, determined that roughly half infringed the copyrights and half did not, allowed re-export of the infringing items, and planned to return the bonds to the importer. Schaper sought to prevent release of the bonds and stay liquidation of the non-infringing goods, while Customs moved to dismiss for lack of subject-matter jurisdiction. The court denied the motion, holding that the action concerned the administration and enforcement of customs regulations on importation and exclusion of merchandise under 28 U.S.C. § 1581(i), not a direct claim for copyright infringement under 17 U.S.C. §§ 602-603, which would fall within district court jurisdiction.

business & regulatoryprocedurefederal power

This case involved Chevron Standard Ltd. challenging the International Trade Administration's (ITA) decision to postpone action on revoking a 1973 antidumping finding against its Canadian sulphur imports, despite the ITA's own findings that Chevron's sales from 1976 through 1979 were all at not less than fair value. The ITA postponed revocation because Chevron was a shareholder in Cansulex Ltd., which had refused to provide sales data needed for reviewing two other companies. The court held that the ITA's determination was not supported by substantial evidence and was arbitrary, as Chevron had fully complied with all information requests, had no involvement in Cansulex's refusal, and the agency's discretion must be exercised based on facts rationally related to the company seeking revocation. It remanded the matter to the ITA for reconsideration without regard to Cansulex's conduct.

business & regulatory

The case involved a challenge by the United States Coalition for Fair Canadian Lumber Imports to the International Trade Administration's (ITA) preliminary determination that Canadian stumpage programs for softwood lumber did not constitute countervailable subsidies under U.S. law. The plaintiff contested only two of the four grounds cited by the ITA for its negative determination—regarding specificity to an industry and assumption of pre-existing costs—and sought reversal of the determination along with a remand to calculate subsidies and suspend liquidation. The court dismissed the action for lack of jurisdiction, ruling that judicial review under section 516A of the Tariff Act was unavailable because a decision on the two challenged grounds alone would not change the ITA's overall preliminary negative determination, which rested independently on the two unchallenged grounds. The court reasoned that granting relief would amount to an advisory opinion that interferes with the ongoing administrative process toward a final determination, without any alleged irreversible harm during the interim period.

business & regulatoryprocedurefederal power

The case involved a plaintiff challenging the denial of his application for a customhouse broker’s license by the Secretary of the Treasury due to failing a required examination on tariff classification. The dispute centered on a test question asking for the correct 7-digit item number for a handbag made of 45% leather and 55% textile materials (cotton, nylon, and acrylic), which the plaintiff classified as leather under item 706.0900 TSUS while the government maintained it belonged under item 706.2450 TSUS as textiles. Relying on General Headnote 10(f) defining chief value and Interpretative Rule 10(e)(ii) requiring comparisons only between coordinate provisions, the court concluded that the textile components must be aggregated and exceeded the leather portion, making the handbag in chief value of textiles. The court therefore denied the plaintiff’s motion for summary judgment, granted the defendants’ cross-motion, and affirmed the license denial.

business & regulatory

The case involved a challenge by Goldsmith & Eggleton, Inc. to the International Trade Administration's 1982 administrative review of a 1973 antidumping order on polychloroprene rubber imports from Japan, where the plaintiff claimed inadequate notice and procedural violations that infringed its due process rights, and sought to enjoin liquidation of its unliquidated entries. The defendant moved to dismiss on grounds of standing, lack of jurisdiction, and failure to state a claim. The court dismissed the action without prejudice, concluding it was premature under the transition provisions of the Trade Agreements Act of 1979, which preserved pre-1980 law for challenges to underlying antidumping findings and required an assessment of duties before judicial review of the 1973 determination could proceed. Because no duties had been assessed, the plaintiff's attempt to contest the ITA's review findings did not yet ripen into a justiciable claim, so no due process violation occurred.

business & regulatoryprocedure

This case involved motions by foreign and domestic sorbitol producers challenging an antidumping determination, seeking access to confidential questionnaires, letters, exhibits, staff reports, and internal memoranda from the ITA and ITC administrative record, while the government sought a protective order limiting disclosure of certain ITC materials and a non-party producer moved to block release of its data. After in camera review, the court ordered disclosure of the parties' own submissions, most ITC staff reports (with deletions of specific non-party data), and industry-wide aggregate computations, subject to strict protective order terms such as limited use, marking requirements, and return of documents at the end of litigation, but it fully withheld questionnaires from three domestic producers containing sensitive production and customer statistics. The decision rested on the balancing test under Section 516A(b)(2)(B) of the Tariff Act, weighing the litigants' need for information germane to material injury and dumping findings against the government's interest in obtaining future confidential data and the producers' interest in avoiding competitive harm from disclosure of non-relevant details. The court found the withheld items largely irrelevant to the core administrative determinations while the released aggregates directly informed those findings.

business & regulatoryprocedure

The case concerned Bethlehem Steel's challenge to the imposition of import duties on a cargo of fluorspar that it had purchased in Texas, shipped via a foreign vessel to Canada, and later brought into New York after unsuccessful efforts to sell it abroad. Plaintiff sought a refund, arguing the merchandise had never been exported and that a prior Customs ruling on a coastwise shipping violation under 46 U.S.C. § 883 should estop any duty assessment. The court denied the refund and granted summary judgment to the government, holding that the cargo's entry into Canadian commerce after the Texas departure made it an export of Canada and thus dutiable upon re-entry to the United States. The Merchant Marine Act and tariff statutes were found not to be in pari materia, so the shipping violation did not control or preclude the separate duty obligation under the tariff laws.

business & regulatory

The case concerns Alcan Sales' challenge to a 10% import surcharge imposed by Presidential Proclamation 4074 in 1971 on dutiable merchandise, seeking recovery of the duty paid on Canadian goods under section 9(a) of the Trading With the Enemy Act on the ground that the plaintiff was not an enemy or ally of an enemy. The government raised defenses of lack of jurisdiction, statute of limitations, res judicata, and collateral estoppel. The court held that it possessed jurisdiction under 28 U.S.C. § 1581(a) over the denial of the customs protest and therefore denied the motion to dismiss, allowing consideration of the TWEA claim on its merits.

business & regulatoryfederal powertaxesprocedure

The case concerned a plaintiff's attempt to recover supplemental import duties (surcharges) imposed under Presidential Proclamation 4074 on merchandise entered between August and December 1971, with jurisdiction asserted under 28 U.S.C. § 1581(i) and the claim based on § 9(a) of the Trading With the Enemy Act. The court denied the government's motion to dismiss for lack of jurisdiction, holding that the two-year limitations period in 28 U.S.C. § 2636(i) ran prospectively from the November 1, 1980 effective date of the Customs Courts Act and that the June 1981 filing was therefore timely. On the merits, the court granted the government's alternative motion for summary judgment, ruling that § 9(a) applies only to recovery of property seized or vested under the TWEA, that the surcharge did not constitute such a vesting or a Fifth Amendment taking, and that the surcharge was a valid exercise of presidential authority under § 5(b) of the TWEA as confirmed by prior precedent in Alcan Sales and Yoshida International.

business & regulatoryfederal powerproceduretaxes

This case involves an association of importers challenging the International Trade Administration's (ITA) final countervailing duty determination and order on certain industrial fasteners from India under 19 U.S.C. § 1516a. The ITA found that the Government of India provided subsidies through three programs—Cash Compensatory Support on Export (CCS) at 17.5% of f.o.b. value, preferential export financing at 0.4%, and tax deductions at 0.1%—and imposed duties accordingly, without referring the matter to the International Trade Commission for an injury determination. The court reviewed the administrative record under the substantial evidence standard and affirmed the ITA's conclusion that the CCS payments constituted subsidies rather than non-excessive rebates of indirect taxes. However, it remanded the determinations on the financing and tax deduction subsidies because the ITA failed to provide sufficient data and explanation for judicial review of those calculations.

business & regulatoryfederal power

This case concerned the proper tariff classification under the Tariff Schedules of the United States of solid state electronic watch modules and complete solid state watches imported by Texas Instruments in 1980. Customs liquidated the modules under item 716.18 as watch movements and the watches under item 715.05, but the importer protested and sought classification under item 688.45 as electrical articles using preprogrammed digital integrated circuits. The court granted summary judgment for the importer, holding that the articles lacked the moving parts required by the common meaning of "watch movement" at the time the schedules were enacted and therefore could not be classified as watch movements or watches; instead, they were more specifically described as electrical articles using digital integrated circuits. The decision followed and extended the reasoning of prior Texas Instruments cases that rejected the government's argument that vibration in a quartz crystal satisfied the motion requirement for a watch movement.

business & regulatory

The case involved a U.S. company's petition to the Department of Commerce for anti-dumping duties on menthol imported from China, including a claim of critical circumstances that would allow retroactive suspension of liquidations for entries after October 16, 1980. Commerce issued a preliminary determination finding less-than-fair-value sales but no critical circumstances. The plaintiff sought a preliminary injunction to prevent liquidation of unliquidated entries and judicial review of the negative critical circumstances finding under the court's residual jurisdiction. The court denied the injunction, concluding that the statutory scheme under the Trade Agreements Act of 1979 evidenced congressional intent to preclude review of such preliminary determinations except in connection with a final determination, and that the plaintiff failed to demonstrate irreparable injury.

business & regulatoryprocedure