NSK Bid for Byrd Duties Fails due to SKF Precedent, 2-Year Limit

The Court of International Trade dismissed a claim by NSK Corporation, the U.S. affiliate of a global ball bearings manufacturer based in Japan, challenged the constitutionality of the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA or Byrd Amendment). NSK Corp. claimed that it was unlawfully denied affected domestic producer (ADP) status, which would have qualified it to receive distributions for fiscal years 2005-2007. .

(NSK originally filed suit in 2007, but the CIT stayed NSK’s actions pending other litigation on the same issues: following the decisions of the Court of Appeals for the Federal Circuit in SKF USA Inc. v. U.S. (556 F. 3d 1337-2009) (SKF), the CIT removed the stays.)

The CIT ruled that NSK’s claims for funds from Byrd Amendment proceeds in fiscal year 2005 fell within the two year statute of limitations period that began when Customs and Border Protection published the list of qualified ADPs on June 1, 2005. Regarding NSK’s equal protection and first amendment challenges to the CDSOA, the court found that the appellate rulings in SKF foreclosed each of these claims, and found "unpersuasive" NSK's argument that more recent U.S. Supreme Court cases effectively overturned the SKF decision.

NSK Corp. v. U.S. et al, Slip Op. 12-28, dated 03/06/12, Judges Carman, Stanceu, and Gordon