CIT Denies 2 Shrimp Cos’ Bid for Byrd Duties due to SKF Precedent, 2-Year Limit

The Court of International Trade dismissed claims by domestic plaintiffs Tampa Bay Fisheries, Inc. and Singleton Fisheries, Inc. arising from the U.S. International Trade Commission and U.S. Customs and Border Protection’s denial of monetary benefits under the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA, or the “Byrd Amendment”). Tampa Bay and Singleton were not included on the ITC’s list of Affected Domestic Producers (ADPs) because of a failure to check the relevant boxes on an ITC questionnaire, and were therefore ineligible to receive Byrd Amendment distributions of antidumping duties collected under AD duty orders on certain frozen warmwater shrimp from Brazil, Thailand, India, China, Vietnam and Ecuador.

(Plaintiffs originally brought this action in November 2008, but the CIT stayed the action pending a final resolution of other litigation raising the same issues the same issues; following the decision of the Court of Appeals for the Federal Circuit in SKF USA Inc. v. U.S. (556 F. 3d 1337-2009), and plaintiffs' showing cause, the CIT removed the stay.)

Plaintiffs' Claims Too Late, Foreclosed by Binding SKF Precedent

The CIT dismissed the plaintiffs’ case due to: (i) untimely challenge of the ITC’s exclusion of each plaintiff from the ADP list (which is barred by the 2-year statute of limitations); (ii) failure to state facts sufficient to qualify either plaintiff for distributions under the Byrd Amendment, or to allow the CIT to conclude that either plaintiff satisfied the petition support requirement; (iii) foreclosure by binding precedent (SKF USA v. U.S., CAFC 2009); and lack of standing to bring claims that the petition support requirement is impermissibly retroactive in violation of the due process guarantee because the Byrd Amendment was not applied retroactively to either of them.

(See ITT’s Online Archives 12031304 for summary of CIT dismissal of NSK’s bid for Byrd Amendment distribution for similar reasons.)

(CIT slip op. 12-37, dated 03/20/12, Judges Carman, Stanceu and Gordon)