Rulings, remedies and court proceedings for customs and trade professionals

Loper Bright Surfaces in Pair of Trade Cases at CAFC

Litigants in a pair of cases at the U.S. Court of Appeals for the Federal Circuit jumped on the U.S. Supreme Court's move last week to axe the principle of agency deference when interpreting ambiguous statutes (see 2406280051). In notices of supplemental authority, two importers told the appellate court that the Court of International Trade relied on the now-defunct Chevron deference standard.

Importers Hilex Poly Co. and American Drew said the high court's ruling in Loper Bright v. Raimondo will help resolve their challenge to CBP's refusal to pay out interest assessed after liquidation, known as delinquency interest, on antidumping and countervailing duties under the Continued Dumping and Subsidy Offset Act (CDSOA) of 2000 (Hilex Poly Co. v. U.S., Fed. Cir. # 22-2106) (American Drew v. U.S., Fed. Cir. # 22-2114).

In their cases, the trade court deferred to CBP's reading of the statute, finding ambiguity in the statute's terms (see 2206160074). Hilex Poly and American Drew noted that the trade court found that the plain text of the CDSOA doesn't favor CBP's statutory interpretation but it deferred to the agency's read of the law. "Under Loper Bright, statutory ambiguity supplies no basis for agency deference," the notice said. "The plain language of the statute controls."

Hilex Poly and American Drew said that CBP wouldn't be able to back its interpretation using any of the factors identified by the Supreme Court. The agency wasn't "delegated authority to withhold delinquency interest," CBP didn't have a consistent interpretation over time and CBP's read "was a post-hoc justification that was not contemporaneous with the original agency action," the brief said. "The best reading of the CDSOA is that the statute requires Customs to distribute all delinquency interest."

Exporters led by La Molisana in a separate case said Loper Bright helps resolve their case because the trade court relied on Chevron in sustaining the Commerce Department's threshold for differentiating between pasta types in an antidumping duty review on Italian pasta (see 2312150039). In its decision, CIT said that because "Congress has not mandated the precise methodology by which Commerce must identify the 'foreign like product,' Congress has implicitly delegated that authority to Commerce" (La Molilsana v. U.S., Fed. Cir. # 23-2060).

Commerce isn't entitled to Chevron deference any longer, so "any 'standards' which arose therefrom are also invalid and plaintiff wishes to argue this Supplemental Authority in oral argument," the brief said.