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.
Adverse facts available (AFA) countervailing duty rates must be corroborated just as is the case with AFA antidumping duty rates, said the Court of International Trade, as it remanded the final results of the 2007 administrative review of certain hot-rolled carbon steel flat products from India (C-533-821). CIT took up the issue after a Court of Appeals for the Federal Circuit ruling in April overturned a CIT remand of an AFA rate applied to a subsidy benefit received by Essar Steel. CAFC said the ITA’s decision to apply an AFA rate was supported by substantial evidence, but the court did not rule on whether the ITA’s AFA rate was reasonable.
Congress’ choice to base some apparel tariff provisions on gender, rather than avail itself of other alternatives, means it intended to discriminate based on gender, said Rack Room Shoes in its brief filed with the Court of Appeals for the Federal Circuit. Therefore, it said, gender-based tariff provisions for apparel are facially discriminatory and violate the equal protection provisions of the Constitution.
The U.S. Supreme Court declined to hear an appeal of Sioux Honey Association v. Hartford Insurance Co., which was decided by the Court of Appeals for the Federal Circuit in February. Plaintiffs’ challenge cited both the failure of the U.S. trade agencies to collect, liquidate and distribute new shipper antidumping duties, and the failure of the sureties for Chinese food product shippers to require and fulfill sufficient bond guarantees. Both the Court of International Trade and CAFC dismissed the case. In light of the Supreme Court’s denial of certiorari, CAFC’s ruling will stand.
Without comment, the Supreme Court denied John Mezzalingua Associates’ bid for a hearing of its appeal of an International Trade Commission patent case and subsequent Court of Appeals for the Federal Circuit affirmance of the ITC’s decision. Mezzalingua had claimed it incurred litigation costs to protect its patents for the purpose of later seeking license deals, and so satisfied the domestic industry prong of Section 337 investigations. CAFC agreed with the ITC that the litigation costs do not satisfy the domestic industry requirement, saying that "allowing patent infringement litigation activities alone to constitute a domestic industry would place the bar…so low as to effectively render it meaningless."
International Trade Today is providing readers with some of the top stories for Sept. 17-21 in case they were missed.
Following further briefing by the parties, the Court of International Trade again took up the issue of whether the Coalition for American Hardwood Parity’s untimely filed challenge to an International Trade Administration antidumping final determination precludes hearing by CIT on jurisdictional grounds. CIT found that it does, and dismissed the challenge without prejudice, but offered to certify its ruling for interlocutory appeal1 before the Court of Appeals for the Federal Circuit. Alternatively, it said, CAHP can amend its complaint to comply with the time limits.
International Trade Today is providing readers with some of the top stories for Sept. 4-7 in case they were missed.
Although limited in immediate effect to steel products, the Court of Appeals for the Federal Circuit’s recent ruling in ArcelorMittal v. U.S. may have wider implications for how the International Trade Administration interprets the scopes of antidumping and countervailing duty orders as a whole, industry officials said. “I do think the Court of Appeals was very clear, certainly on this particular product, but I think it was also very clear that there are limits to how the Commerce Department can interpret a scope,” said Robert LaRussa of Shearman & Sterling, who worked with Bryan Dayton to represent ArcelorMittal in the case.