CIT Dismisses CDSOA Challenge; Plaintiff Began Production After AD Order Issued

The Court of International Trade dismissed another action brought by a domestic producer challenging the distribution of funds under the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA) (aka the Byrd Amendment) with regard to the antidumping duty orders on certain polyester staple fiber from Korea (A-580-839) and Taiwan (A-583-833).

(Plaintiffs originally brought this action in April 2008, but the CIT stayed the action pending a final resolution of other litigation raising 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.)

Plaintiff Began Production After Issuance of AD Order; Disputed Petition Support Req

Plaintiff United Synthetics, Inc. (USI), which began production five days after the antidumping duty orders in question were published, said it could not support the petition due to beginning production after the petition’s filing, but it did participate in a sunset review of the AD orders, and did support the petition (and receive CDSOA funds) in the investigation of polyester staple fiber from China. Therefore, according to plaintiff, as USI supported the order, the ITC’s determination not to place USI on the list of eligible ADPs for Korea and Taiwan, and CBP’s failure to provide CDSOA distributions, was unlawful.

CIT rejected plaintiff’s arguments, saying Congress was explicit in requiring support for the petition rather than support for the resulting order. CIT said Congress could have broadened or narrowed the class of domestic producers eligible for CDSOA disbursements should it have chosen to do so, even to include producers that had not begun production by the time of issuance of the Order.

CIT also Dismisses Constitutional Challenges; Dismiss Action

Additionally, as in other cases, CIT dismissed plaintiff’s claims that the petition support requirement of CDSOA violates the First Amendment and the Fifth Amendment equal protection guarantee as foreclosed by the binding precedent of the Court of Appeals for the Federal Circuit’s ruling in SKF USA v. United States. CIT also dismissed USI’s challenge of CDSOA’s retroactivity, which revolved around the question of its late founding date, for similar reasons to why it dismissed USI’s claim that ITC’s determination of ineligibility was unlawful.

Therefore, CIT granted the Government’s motion to dismiss all of USI’s claims, as well as the action.

(CIT Slip Op. 12-52, dated 04/20/12, Judges Carman, Stanceu, and Gordon)