On December 19, 2011, in GPX Intl. Tire Corp. v. U.S., the Federal Circuit affirmed the International Court of Trade’s ruling that countervailing duty law does not apply to a non-market economy (“NME”) country, such as China. We previously summarized the Federal Circuit’s ruling here.
Recently, the United States and Titan Tire Corporation petitioned for a rehearing of the Federal Circuit’s decision. While the petition was pending, Congress passed legislation to apply countervailing duty law to NME countries. The new legislation applies retroactively and applies to this case. Congress’ intent plainly was to overrule the Court’s previous decision. Further, the new legislation contains a provision regarding an adjustment of antidumping duties on imported goods. This so-called “double counting” provision does not apply to the rehearing proceeding. Although the scope of the new legislation is clear, the appellees argue that it is unconstitutional. As a result, the Federal Circuit ordered that the Trial Court should decide this issue.
In summary, the Federal Circuit granted the petitions for rehearing and remanded the case to the Trade Court to determine whether the new legislation is constitutional.
Gibbons will monitor developments in this important area of law.