CBP Unblocks Some Byrd Amendment Funds After CAFC Rulings
U.S. Customs and Border Protection has announced that it will begin distributing some of funds available under the Continued Dumping and Subsidy Offset Act (CDSOA, also known as the Byrd Amendment) starting sometime after March 31, 2011 and continue until each fiscal year from 2006 through 2010 has been completed.
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Funds Were Withheld Due to Litigation Challenging CDSOA Provisions
CBP states that a significant amount of litigation has challenged various provisions of the CDSOA, most notably the definition of the term “affected domestic producer.” As a result, CBP withheld from distribution an amount corresponding to the pro-rata share of all domestic producers who filed complete and timely certifications starting in 2006, despite the fact that some claimants may not have appeared on the ITC List.
In two decisions, the Court of Appeals for the Federal Circuit upheld the constitutionality of the support requirement contained in the CDSOA. In SKF USA, Inc. v. United States, the CAFC held that the CDSOA’s support requirement did not violate either the First Amendment or the Fifth Amendment. The Supreme Court of the United States denied plaintiff’s petition for certiorari. In PS Chez Sidney, L.L.C. v. United States, the CAFC summarily reversed the U.S. Court of International Trade’s judgment that the support requirement was unconstitutional, allowing only plaintiff’s non-constitutional claims to go forward. CBP will distribute a portion of the withheld funds to affected domestic producers based on these decisions.
Distributions Will be Processed Separately for Each FY
Distributions will be processed separately for each fiscal year and if applicable, updated CDSOA statements for each fiscal year will be issued to the most recent address on file. The fiscal year of the CDSOA statement can be determined from the 2nd and 3rd digit of the claim numbers. (i.e. I0612345 or E0612345 indicates fiscal year 2006). Annual reports will be updated on the website after the distributions for all fiscal years are completed.
CBP Will Continue to Hold Plaintiff's Part of Funds for Pending Litigation
Several court cases challenging various provisions of the CDSOA are still unresolved. For any pending litigation, CBP will continue to withhold the plaintiff(s)’s alleged pro rata share of the funds, if any, currently being withheld for fiscal years 2006 through 2010. The CDSOA cases affected and the amount of withheld funds will be reflected in the updated annual reports.
(CBP notes that as provided in 19 CFR 159.64 (b)(3), overpayments to affected domestic producers are recoverable by CBP and CBP reserves the right to use all available collection tools to recover overpayments. Overpayments may occur for a variety of reasons such as reliquidations, court actions, and administrative errors.)
1The Byrd Amendment requires that the revenues from AD/CV duties assessed on or after October 1, 2000 be distributed on an annual basis to the affected domestic producers for specified qualifying expenditures. Although the Byrd Amendment has been repealed, all duties on entries of goods made and filed before October 1, 2007 will still be distributed.
(See ITT's Online Archives or 12/09/10 news, 10120905, for BP summary of CBP's FY 2010 Annual Report.
CBP contact- Melissa Kurth (317) 614-4462 or CDSOA@dhs.gov