Court of Federal Appeals Trade activity

The Commerce Department is again revoking the antidumping duty orders on ball bearings from Japan and the United Kingdom (A-588-804, A-421-801), after domestic ball bearing companies declined to participate in five-year sunset reviews of the orders. Effective for entries on or after Sept. 15, 2011, Commerce will direct CBP to end suspension of liquidation and AD duty cash deposit requirements.

The U.S. Court of Appeals for the Federal Circuit on March 18 confirmed the legality of parts of a 2012 law allowing the imposition of countervailing duties on goods from non-market economy countries like China and Vietnam. The Appeals Court affirmed a year-old Court of International Trade decision, finding provisions for adjustment of “double counting” that only apply to CV duty cases decided after 2012 do not violate the Constitution.

The Court of International Trade recently announced changes to its Standard Chambers Procedures, as well as changes to filing fees that follow from increases in fees at the U.S. Court of Appeals for the Federal Circuit. The change to the Standard Chambers Procedures removes a requirement that, if a lawyer becomes aware of an error in a brief, he or she must tell CIT through an error memorandum (here). The changes in filing fees mirror CAFC increases in December (see 13112526), and affect fees for appealing to CAFC, record retrieval, and payments returned or denied for insufficient funds (here). The changes take effect April 1.

Two manufacturers of ball bearings based in Japan have asked the Supreme Court to decide the longstanding issue of judicial deference in antidumping and countervailing duty cases. In a petition for certiorari dated Feb. 21, NSK and JTEKT argue that the Court of Appeals for the Federal Circuit should only overturn AD/CVD cases at the Court of International Trade if it finds the trade court made an error. Currently, CAFC usually takes a fresh look at each side’s arguments. The Supreme Court appeal says that de novo review creates inefficiency and unpredictability for litigants.

The U.S. Court of Appeals for the Federal Circuit on March 11 confirmed a lower court ruling that found Marvin Furniture ineligible for its own individual antidumping duty rate in a new shipper review on wooden bedroom furniture from China (A-570-890). Commerce had ended the review because it found Marvin’s date of first entry had actually occurred nine months earlier than Marvin had indicated in its review request. Although the earlier date was still within the one year deadline from the date of first entry, Commerce nonetheless found that the errant date meant Marvin’s new shipper review request wasn’t complete and rescinded. Marvin argued that the mistake was harmless, and that Commerce should have continued based on the new information. But CAFC agreed with the Court of International Trade’s August 2012 decision (see 12082731), finding Commerce’s decision to be reasonable because the requirement that review requests be correct and complete is necessary to ensure the agency meets legal deadlines for conducting reviews.

The full U.S. Court of Appeals for the Federal Circuit will take another look at whether corporate officers are liable for negligent misstatements on entry documentation, granting on March 5 the government’s request for a rehearing en banc on the issue. The Appeals Court will revisit its decision in Trek Leather, where it found Harish Shadadpuri was not liable for his company’s undervaluation of entries of men’s suits (see 13073025).

The Court of International Trade on March 3 went back to the drawing board to implement a decision from the U.S. Court of Appeals for the Federal Circuit, affirming the Commerce Department’s original antidumping duty rate for an exporter of pasta from Italy (A-475-818) after the trade court had thrice remanded over the last five years. Commerce had calculated an AD duty rate of 18.18% for Atar in the 2004-05 administrative review on pasta from Italy, but CIT took issue with the rate in a series of decisions until finally in 2012 affirming an AD rate for Atar of 11.76% (see 12080206). But a year later, the Appeals Court reversed the remands, finding Commerce had in fact correctly calculated Atar’s rate in the final results (see 13091128). CIT’s decision now affirms the final results rate of 18.18% in light of the reversal from CAFC. Cash deposit rates for Atar will remain at zero, however, because of a Section 129 decision that took effect July 8, 2012.

Congress could improve the Court of International Trade (CIT) through statutory updates to help improve it's efficiency, said CIT Chief Judge Donald Pogue, while speaking Feb. 27 on a panel at the Georgetown University Law Center International Trade Update conference. "There are too many areas in which the statute doesn't make sense," he said. "Our injunction practice is a good example." Problematic statutes are "wasting resources" and "we need a process that will identify those problems, find the solutions where, in fact, the administration of justice works better," he said. The panel included three CIT judges and a judge from the Court of Appeals for the Federal Circuit (CAFC). The event was sponsored by the Customs and International Trade Bar Association and the Federal Circuit Bar Association.

Protests must be filed at the port where the contested CBP decision was made in order to be eligible for a subsequent court challenge, ruled the Court of International Trade on Feb. 14 as it dismissed an importer’s tariff classification suit. The regulatory requirement that “protests shall be filed with the port director whose decision is protested” is a requirement for CIT jurisdiction, it said. Just as with the requirements that protests be filed on time and duties be paid before the trade court can take up a challenge, so must the importer meet the requirements of CBP’s “place-of-filing” regulation, it said.

A three-judge panel of the U.S. Court of Appeals for the Federal Circuit indicated during oral argument they could take a narrow approach to deciding the outcome of a controversial case on the scope of CBP notices of action. A Justice Department lawyer voiced concern that a Court of International Trade (CIT) decision finding a CBP notice of action improperly revoked an earlier ruling letter could force CBP to follow formal notice and comment procedure for every notice of action issued by the agency. But Federal Circuit Judges Kathleen O’Malley, Jimmie Reyna, and Eli Wallach questioned whether the particular notice of action issued to International Custom Products operated as a typical notice of action at all. The oral argument was held on Feb. 6 in Washington.