The Court of International Trade stayed Koehler’s challenge of the 2008-09 antidumping administrative review of lightweight thermal paper from Germany (A-428-840) on the issue of zeroing, as well as other aspects of the final results, pending resolution of Union Steel v. U.S. In Union Steel, currently on appeal, CIT affirmed the International Trade Administration’s explanation for zeroing in administrative reviews but not investigations. The ITA provided a similar explanation in this case. The U.S. government opposed the stay, arguing that Koehler did not raise the issue during the administrative review and so failed to exhaust its administrative remedies. Shortly before the final results were issued, CAFC decided for the first time in Dongbuv. U.S not to affirm the ITA’s use of zeroing in administrative reviews. The ITA said the decision was merely a remand, not an actual change to the law, so it did not merit waiving the exhaustion requirement. But CIT said the fact that the law is now “unsettled” by the remand means it is waiving the exhaustion requirement and staying the case.
The Supreme Court denied a hearing for Alden Leeds’ challenge of an incorrect CBP deemed liquidation of entries for which liquidation was suspended. At the time, the entries had been subject to suspension of liquidation because of an ongoing antidumping duty administrative review. The Court of International Trade had originally ruled in favor of Alden Leeds, and ordered a refund on the excess duties paid because the company’s cash deposits exceeded its final calculated assessment rate. But the Court of Appeals for the Federal Circuit overturned CIT’s ruling after finding that the company should have protested deemed liquidation, even if it was incorrect. As a result of the Supreme Court’s denial of certiorari, CAFC’s ruling will stand.
The Supreme Court will not hear Hitachi’s challenge of time limits for CBP action on customs protests, after denying certiorari to Hitachi Home Electronics v. U.S. on Dec. 3. The denial means the Federal Circuit’s November 2011 ruling that the two-year time limit imposed on CBP by 19 USC 1515(a) is not mandatory will stand, and that accelerated disposition remains the remedy for importers who want to force CBP action. Several trade associations are discussing legislation to impose a mandatory time limit for CBP action on protests. But given the broad-based issues Congress is confronting in its lame duck session, any legislative solution will probably have to wait, said Susan Kohn Ross of Mitchell Silberberg.
CBP said it's withholding a total of $7,373,556.45 from the Special Account as a result of pending litigation related to the Continued Dumping and Subsidy Offset Act of 2000, and said it will also begin withholding funds from the Special Account associated with any cases involved in ongoing litigation until the amounts at issue in the pending litigation have been withheld.
CBP will withhold funds from the Special Account related to ongoing litigation involving questions of affected domestic producers and the Continued Dumping and Subsidy Offset Act (CDSOA, aka the Byrd Amendment), said CBP. The withholding of funds is due to several court cases reviewing CDSOA provisions. The Court of Appeals for the Federal Circuit recently reversed the International Trade Commission’s denial of eligibility for benefits under the CDSOA for U.S. crawfish producer PS Chez Sidney.
The International Trade Administration’s new methodology for determining surrogate wage rates in antidumping proceedings for non-market economies (NME) is reasonable, but the ITA must choose the surrogate country based on evidence, and not simply because it is used to value other inputs, said the Court of International Trade as it remanded in part the final results of the 09-10 AD review of certain frozen warmwater shrimp from Vietnam (A-552-802). CIT also affirmed the ITA’s use of zeroing in the administrative review.
The Court of Appeals for the Federal Circuit affirmed the International Trade Commission’s finding of no Section 337 violations by SMC’s imports or sales of connecting devices for use with modular compressed air conditioning units (337-TA-587). Norgren, which filed the original patent complaint, contested the ITC’s finding that its patent was obvious and therefore invalid, noting that ITC had found the patent nonobvious prior to a 2009 CAFC reversal of a different issue associated with the case. CAFC said it vacated the ITC’s obviousness determination in the first remand, allowing the ITC to revisit its determination in light of the new claim construction that resulted from the remand. The ITC also considered new evidence when making its determination, CAFC said. Judge Moore issued a dissenting opinion.
CBP’s interpretation of the law governing time limits for protest decisions “turns that statute upside down,” said Hitachi in its final brief before the Supreme Court decides whether to hear the case. The government’s interpretation that the two-year time limit in 19 USC 1515(a) is not mandatory, as well as the Court of Appeals for the Federal Circuit’s decision affirming that view in Hitachi v. United States, nullifies the law by allowing CBP to forever refuse to allow or deny protests, it said in its reply to the Nov. 2 government brief. The Supreme Court is likely to announce its decision Dec. 3, an industry lawyer said.
The appeals court ruling in Hitachi v. United States on CBP protest deadlines is not consequential enough to merit review, said the U.S. government in its Nov. 2 reply brief to Hitachi’s request for a hearing by the Supreme Court. The issue took four decades to arise, the government said, and importers have the option of accelerated disposition of CBP protests if they seek judicial review.
As the East Coast cleans up after Sandy, ports, railroads, and trucking companies are resuming operations on much of the East Coast. Operations in the New York region remain mostly closed, however, and shipments could face delays in the rest of the Mid-Atlantic and Northeast as well. Meanwhile, the D.C.-based Court of Appeals for the Federal Circuit has reopened, but the N.Y.-based Court of International Trade remains closed.