Customs And International
Trade Bar Association
|
|
Don't forget to become a member of CITBA or renew your CITBA membership to get the most out of our programming and website content! |
|
July 20, 2022 (12:30 PM -1:00 PM EDT): Customs Committee Meeting
The Customs Committee will be holding its quarterly meeting for members to catch up on current customs events. The meeting will also feature comments from Molly Newell of Hogan Lovells, who will discuss the new Forced Labor Guidance and how CBP has begun enforcement of the UFLPA.
|
July 20, 2022 (5:30 PM - 7:30 PM EDT): Young Lawyers Committee Happy Hour
The Young Lawyers Committee will be hosting a happy hour at Hank's Oyster Bar in Dupont. Come enjoy the D.C. summer weather with your fellow CITBA members and those in the Young Lawyers Committee. We look forward to seeing you there!
|
For information on registration and the latest on CITBA events, please visit our website. |
June 28, 2022 : Summer Trivia Night
The Diversity, Equity & Inclusion and Young Lawyer Committees of CITBA held a summer trivia event and networking night for summer fellows, interns, and associates and other law students and lawyers interested in international trade.
|
June 7, 2022 : The Use Of The False Claims Act In The Trade Arena
CITBA's Customs Committee hosted a discussion on the use of the False Claims Act in the trade arena. The panel included Brittney R. Powell, Fox Rothschild LLP, Stephen Tosini, Department of Justice, and J. Michael Taylor, King & Spalding LLP, and was moderated by Jill Cramer, Mowry & Grimson, PLLC.
|
June 3, 2022 : Panel Discussion on Russia Sanctions & Export Controls
CITBA hosted a panel of leading experts from BIS, OFAC, and DDTC to discuss recent updates to Russia sanctions and export controls. The panel included Matthew S. Borman, Deputy Assistant Secretary of Commerce for Export Administration, BIS, Michael Lieberman, Assistant Director for Enforcement, OFAC, and Sarah J. Heidema, Director of Policy, DDTC, and was moderated by Ulrika Swanson of Cassidy Levy Kent.
|
May 10, 2022 : Congressional Trade Agenda and Careers on the Hill
CITBA hosted a panel on the Congressional trade agenda and priorities, as well as insights into career opportunities on Capitol Hill. The panel included Kelly Fay Rodríguez, Trade and Labor Oversight Counsel, House Ways and Means (D), David Giordano, Professional Staff Member, House Ways and Means (R), Virginia Lenahan, Trade Counsel, Senate Finance (D), and James Guiliano, Trade Policy Advisor, Senate Finance (R), and was moderated by the CITBA Young Lawyers Committee Co-Chairs.
|
May 3, 2022 : CITBA Annual Meeting
CITBA hosted its Annual Meeting and our first in-person event since the pandemic. The meeting was preceded by presentations from Lisa Wang, Assistant Secretary of Commerce for Enforcement and Compliance, and Lisa Barton, Secretary of the International Trade Commission. We were also joined by a panel of government and private sector lawyers to talk about the trade implications of the crisis in Ukraine.
|
NEWS FROM THE CLERK OF THE COURT OF INTERNATIONAL TRADE
By Stephen Swindell and Scott Warner*
*Stephen Swindell is the Supervisor and Scott Warner is the Operations Manager for
Case Management at the Court of International Trade.
|
Let’s Get Searchable!
The Court approved proposed amendments to Rule 81. Papers Filed; Conformity; Form, Size, Copies and to the Standard Chambers Procedures. Beginning August 1st, documents filed on CM/ECF must be text-searchable PDFs to the maximum extent possible. Please take note of the new Practice Comment in Rule 81 that provides information on how parties can verify that their documents are text-searchable.
Conforming Judgments
Proposed amendments to CIT Rule 58. Entering Judgment and Form 21 Bill of Costs were also approved by the Court. Effective August 1st, CIT Rule 58 will now conform with FRCP 58. Information on these amendments can be found in the News & Announcements section of the Court’s website.
Twice a YouTube Star
The Court livestreamed the audio of a proceeding for a second time since joining the Audio Streaming Pilot Program authorized by the Judicial Conference of the United States – an oral argument held on June 28th before Judge Vaden in Ct # 21-00219 OCP S.A. v. United States. Thanks to this program, over 340 members of the public were able to listen to the proceeding through the Court’s YouTube channel.
USCIT Judicial Conference
Just a friendly reminder that the 21st Judicial Conference will take place at The Mayflower Hotel in Washington, D.C. on October 27 th. If you haven’t already made your plans, get started by reserving a room today!
|
|
|
Remarks from New CITBA President Michele Lynch |
|
I am very honored to have been selected to be the President of CITBA and apparently to be the first Government attorney to hold this position. (Given that CITBA began in 1926 - thanks Trivia Night - that is a long time coming.) CITBA is ever evolving and has certainly grown in fundamental ways during the decade or so that I have been a member. That growth, of course, is attributable to the committed work of our volunteer Board members and our membership.
During the most challenging two years for all of us, my predecessor, Matt Nicely, was at the forefront of establishing our very active Diversity, Equity and Inclusion (DEI) committee that has made and continues to make every effort to expand the Trade Bar. Under Matt’s stewardship, Irving Williamson and Mikki Cottet, co-chairs of the DEI committee, not only hosted meaningful panel programs but also created fellowships in conjunction with ASIL that recently were awarded to deserving law students from under-represented communities. Matt also successfully transitioned CITBA to a new administrative cohort and helped develop an enhanced and more user-friendly CITBA website. Matt and the prior Board met these challenges despite only having a single in-person meeting during the last month of his tenure. Thank you to the prior Board and its Vice Chairs for incredible work during such a challenging time.
Our diversity and inclusivity momentum needs to continue. Hopefully, such growth will attract new members across the entirety of the trade arena. To sustain and grow CITBA, we intend to continue to provide members with programs addressing topical issues. The past few years have seen numerous novel issues affecting our various practice areas and hearing from officials and practitioners directly involved in such issues is enlightening. A great example of this was the recent Sanctions panel hosted by the Export Control committee at an event sponsored by the International Trade committee.
We also have an outstanding Young Lawyers committee (YLC) that develops programs and events designed to foster a community for our newer colleagues. The YLC has caught not only the attention of the Georgetown International Trade Update program, where entry to its networking events has been hard to come by, but also the Court, which graciously invited the YLC to host networking opportunities at the last Judicial Conference as well as at the Conference set for this Fall.
We have numerous other committees that work tirelessly as well to bring content to our members. I have been very fortunate to work both with and against amazing lawyers during my decades in the Trade Bar - lawyers whose substantive knowledge was and is unrivaled but who also saw fit during their busiest of days to bring many of us along for the ride demonstrating the power of mentorship. It would be remiss of me not to acknowledge and thank them - Velta (Anita) Melnbrencis, Berniece (Bunny) Browne and Kathleen Cannon. Kathy’s sustained encouragement of women in trade has given the Board a new look. I encourage all of you to reach out to your newer colleagues and offer them the opportunities that we were so graciously provided.
I also have friends who are or have been trade practitioners who have devoted countless hours to improving our practice and whose unselfish generosity inspires me -- AnnMarie, Patricia, Stacy, Andrea, Claudia, Nancy, Alice, and, of course, the indefatigable, Don.
Although our clients span the globe, we are a rather close-knit community dependent upon one another to keep the process working. CITBA fosters that community and if you are involved in trade, this is your community - the firms and agencies involved in trade daily are represented in CITBA. If you are reading this, you are probably already a member. If you are not yet a member, I would encourage you to join.
I look forward to working with the new Board and our membership to grow our community.
Michele D. Lynch
|
|
* Many thanks to Lydia Pardini, Tebsy Paul, and John Peterson for their contributions to this update.
|
|
DID YOU MISS IT?
On April 20, 2022, at our Customs Committee meeting, Christopher Hyner from King & Spalding gave us a summary of the various Customs-related provisions in the COMPETES Act Bill (HR 4521).
On June 7, 2022, the CITBA Customs Committee hosted a panel of experts on the use of the False Claims Act in the trade arena. Panelists included Brittney R. Powell from Fox Rothschild LLP, Stephen Tosini from the Department of Justice, and J. Michael Taylor from King & Spalding LLP. Jill A. Cramer from Mowry & Grimson moderated the panel.
As we learned from the panel, the False Claims Act (“FCA”) was enacted in 1863 by a Congress concerned that suppliers of goods to the Union Army during the Civil War were defrauding the Army. Today, the FCA continues to be a tool in combating fraud against the government. The law includes a qui tam provision that allows “relators” to file an action on behalf of the government and receive a portion of any recovered damages. In the trade context, because of the severity of certain duties, a portion of recovered damages can be significant.
The most common trade-related FCA claims concern issues such as the misrepresentation of the country of origin of merchandise, undervaluation, and misclassification. Relators tend to be either company insiders (whistleblowers) or competitors. Over the last four years, it is estimated that roughly 75 customs-related FCA claims were brought. Since 2012, the U.S. Government has collected roughly $130 million in trade-related FCA settlements or judgments. This compares to the estimated $5.6 billion in FCA judgments and settlements collected last year alone and 598 new qui tam actions filed – most of which involve healthcare.
It is estimated that the USG intervenes in roughly 22 percent of FCA cases and nearly every case settles. It is settled law that customs duties are “cognizable damages” and falls within the FCA. The USG will often decline to take on an FCA case and declining to do so is not necessarily indicative of the strength of the evidence. Rather, it may be an assessment that the relator has the legal counsel and resources to take the case themselves. Additional considerations are that the penalties provision pursuant to section 1592 may be easier to establish under the lower negligence standard. The FCA, however, generally garners a better recovery due to the domestic value cap of section 1592.
There were great participant questions that invoked questions about whether the Enforce and Protect Act was a better avenue. Generally, the standard for initiating an investigation is lower under EAPA and there is consensus that the provision allows for more circumstantial evidence. And if a competitor wants to stop a behavior, EAPA may be a more effective avenue given the statutory deadlines provided. But if a monetary remedy is sought, EAPA may not be the best avenue.
There was discussion as to whether if you were the originator of information to CBP in EAPA there may be some success in subsequent FCA claim, but that is an open question. The Ninth Circuit has mentioned that there may be some offset if there are parallel cases occurring.
WOULD YOU LIKE TO JOIN THE CUSTOMS COMMITTEE? The Customs Committee is open to any CITBA Member who would like to join! We meet quarterly (July, October, January, & April) around lunch time to give us all a chance to stay in the “know” on current customs events. Each meeting starts with a short informal presentation giving us a “heads-up” about interesting current customs matters. We will then open the meeting for discussion, questions, or anything else that occurs organically. We hope you will join us! If you would like to join and receive updates regarding meeting times and logistics, please make sure to “join” the Customs Committee through the CITBA.org website. All meeting details and links will be communicated through the website platform.
Please save the date – July 20, 2022, from 12:30-1:00 p.m. – for our next Customs Committee meeting. Molly Newell of Hogan Lovells will discuss the new Forced Labor Guidance and how CBP has begun enforcement of the UFLPA.
Stay in the Know:
(1) Forced Labor Guidance Hot Off the Press:
|
|
Federal Circuit and CIT Case Summaries |
|
Please enjoy brief summaries of key US CAFC and CIT case decisions from the past quarter. CITBA thanks Nithya Nagarajan, Julia Banegas, and Isabella Peek in Husch Blackwell LLP's Washington D.C. office, and Lydia Pardini, Partner at AMS Trade LLP, for putting these together and sharing them. |
|
Case Study: Use of Prospective Method in the Determination of Antidumping Duties |
By Maria José Etulain
Director of Dumping Investigation Monitoring Center
|
The Argentine Republic, member of the WTO since 1995, has regularly resorted to the application of antidumping duties in the last 30 years, as an answer to unfair trade practices, following the rules of the multilateral space in which it participates (formerly GATT, now WTO).
At the end of 2021, Argentina had 5 % of the total antidumping measures, initiated or in force by WTO members, according to the official statistics found in:
During more than 25 years working on dumping cases, either as member of the official team for antidumping investigations in Argentina, or as counselor advising companies in the private sector, it was always interesting for me to observe whether the adopted final antidumping measure had really served to achieve the objectives pursued.
At this point we must be clear: in an antidumping case, while the government will seek to temporarily protect the domestic producers of certain product, the private sector will be looking to harm the competitor's economic equation and/or to take/defend its market share.
The application of the allowed method to assess antidumping duties in the AADP (prospective or retrospective), and the form these taxes take in each country (percentages, specific values, or other) will influence the result and impact achieved in the real market.
|
|
Please look for further announcements, events, copies of past newsletters, and other resources at: |
|
Not a CITBA member? Apply for membership now! CITBA offers different membership levels - active, associate and retired/student.
We can also make it easy on you by issuing a single invoice for all the members of your practice group. Email Nancy Noonan and Luke Tillman at info@citba.org for details.
|
|
 |
DISCLAIMER: The CITBA Quarterly Electronic Newsletter is published as a free service for members of the Customs and International Trade Bar Association. The Newsletter is for general information only and is not legal advice for any purpose. Opinions reflected in the Featured Articles are solely those of the authors and do not reflect the position of CITBA, its members, the Board of Directors, or Sandler, Travis & Rosenberg, P.A. Neither CITBA and its officers and members nor Sandler, Travis & Rosenberg, P.A., assume liability for the accuracy of the information provided.
|
|
|
|
Our Address:
200 Little Falls Street, Suite 205
Falls Church, VA 22046
|
|
|
|
|
|
|
|
