In a consolidation of multiple cases, eight domestic producers of crawfish tail meat, together with tapered roller bearings producer Koyo Corporation of U.S.A and antifriction bearings producer SKF USA, Inc., challenged the constitutionality of the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA, or Byrd Amendment), and the administration of that statute by the International Trade Commission and Customs and Border Protection. Because they had not supported the petitions leading to the AD orders on crawfish tail meat or antifriction bearings, the companies were not included on the ITC’s lists of “affected domestic producers” (ADPs). Among other claims, they argued that the petition support requirement violated their First Amendment free speech, Fifth Amendment equal protection, and Fifth Amendment due process rights.
On March 13, 2012, President Obama signed H.R. 4105 into law, amending 19 USC 1671 so that the countervailing duties on non-market economy (NME) countries, such as China and Vietnam, can continue to apply and adjustments of antidumping margins for double counting can be made. These changes were needed in light of certain court and WTO rulings.
Following recent appeals court decisions that asked the International Trade Administration to explain its continued practice of zeroing (excluding the negative dumping margins of non-dumped imports from overall dumping margin) in administrative reviews after having ended it in investigations, the Court of International Trade has accepted a partly new set of justifications from the ITA. This CIT ruling comes on the heels of the ITA's final rule that eliminated zeroing as the normal procedure in administrative reviews.
On March 7, 2012, the Senate passed H.R. 4105 without amendment by unanimous consent. Proponents say the bill will allow the International Trade Administration to continue to apply countervailing duties in cases involving non-market economy nations (NMEs), like China and Vietnam, beyond upcoming court and WTO deadlines. The House of Representatives passed the bill on March 6, 2012. The measure is slated to go to the President on March 8. His signature on the measure will enact it into law.
The Court of Appeals for the Federal Circuit decided on February 29, 2012 to remand, in part, for further proceedings the International Trade Commission’s negative final determination in the patent infringement proceedings on certain variable speed wind turbines and components thereof (337-TA-641). In response to a petition by General Electric to ITC that Mitsubishi had infringed on three patents (‘039, ‘221, and ‘985), the ITC’s January 2010 final determination had held that no patents were infringed and/or the domestic industry requirement was not met. The ‘039 patent expired on February 1, 2011, and CAFC dismissed that portion of the appeal as moot, vacating the ITC’s rulings as to that patent. CAFC now affirms the ITC’s ruling that the ‘221 patent is not infringed, but reverses the ITC’s determination of no domestic industry as to the ‘985 patent, and remands for further proceedings.
On March 6, 2012, the House of Representatives passed H.R. 4105 by a 370 to 39 margin, with 24 not voting. The bill will ensure the International Trade Administration can continue to apply countervailing duties in cases involving non-market economy nations (NMEs), like China and Vietnam, beyond upcoming court and WTO deadlines. The Senate passed its version of the bill, S. 2153 one day earlier. The Senate is now expected to pass H.R. 4105 (which is identical to S. 2153) and then send the measure to the President for his signature, enacting the measure into law.
On March 5, 2012 the U.S. Senate passed (with unanimous consent) S. 2153, to ensure the International Trade Administration can continue to apply countervailing duties in cases involving non-market economy nations (NMEs) like China and Vietnam, beyond upcoming court and WTO deadlines. The House is scheduled to consider an identical measure, H.R. 4105, on March 6 and passage is expected. The Administration supports the measure and President Obama is expected to sign it into law.
Consistent with other recent rulings on similar claims, the Court of International Trade dismissed a challenge by domestic manufacturer Standard Furniture Manufacturing Co., Inc. to its exclusion from the list of affected domestic parties (ADPs) eligible to receive a share of AD duties collected on wooden bedroom furniture from China under the Byrd Amendment (aka the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA), and its request for an injunction to delay the distribution of duties to ADPs. The CIT chiefly based its dismissal on comparable challenges addressed by the Court of Appeals for the Federal Circuit in SKF USA Inc. v. U.S. (556 F. 3d 1337-2009) (SKF).
On February 29, 2012, the trade leadership in the House and Senate introduced identical legislation to change the law so that the International Trade Administration can continue to apply countervailing duties to non-market economies (NMEs) such as China and Vietnam beyond upcoming court and WTO deadlines. The House Ways and Means Committee states that this legislation will move soon, and that it was developed with the support of the Obama Administration.
The Court of Appeals for the Federal Circuit has upheld a lower court's ruling that denied CBP's classification of certain finished flavoring products as soups or broths under HTS heading 2104. The Court instead ruled in favor of the importer based on its consideration of several factors which revealed that the flavorings were not principally used for soups and broths but could be used in many different ways. Thus, the Court ruled the flavorings are classifiable as food preparations under heading 2106.