CAFC Reverses CDSOA Determination; Questionnaire Responses Can Indicate Petition Support

The International Trade Commission’s denial of eligibility for benefits under the Continued Dumping and Subsidy Offset Act (CDSOA, aka the Byrd Amendment) for U.S. crawfish producer PS Chez Sidney was reversed by the Court of Appeals for the Federal Circuit. The ITC had originally ruled Chez Sidney ineligible in 2002, only to reverse its decision pursuant to a 2007 Court of International Trade remand after CIT said the petition support requirement of CDSOA violated the First Amendment. Then, in 2010, ITC once again found Chez Sidney ineligible for benefits after CAFC reversed CIT’s 2007 remand because of CAFC’s SKF v. USA ruling, which had found that the petition support requirement was constitutional. In this ruling, CAFC also remanded CBP’s decision, made during the 2007-2010 period during which Chez Sidney was found eligible, to only distribute benefits to Chez Sidney to the extent that the already distributed benefits were recoverable from other domestic producers.

(In 1996, during the preliminary phase of the antidumping investigation of freshwater crawfish tail meat from China, Chez Sidney filed a response to an ITC questionnaire and indicated support for the AD petition. Then, after the ITC had made its preliminary injury determination, the ITC sent out a final questionnaire. Chez Sidney filed a full response to the ITC’s final questionnaire, but checked a box indicating it took no position on the AD petition. In 2002, the ITC said Chez Sidney was ineligible for CDSOA benefits because it checked the box indicating no position and therefore did not meet the petition support requirement. Therefore, it didn’t add the company to the affected domestic producers (ADP) list.)

CAFC Says Full Questionnaire Responses in Investigation Indicate Petition Support

CAFC overturned the ITC’s ruling that Chez Sidney is ineligible because it indicated that it took no position for or against the petition. Instead, said CAFC, while the company said it took no position, it also supported the investigation by filing a detailed response to the ITC’s final questionnaire, including sales, production, and other data. CAFC said the ITC could not consider only the boxes checked during the investigation, but must also consider the surrounding circumstances. It is not abstract statements of support alone upon which an appropriate support determination depends, said CAFC. CAFC held that when a U.S. producer assists investigations by responding to questionnaires but takes no other action probative of support or opposition, the producer has supported the petition and is eligible for distributions it if can otherwise make the required certification that it has been injured. Chez Sidney was an ADP within the meaning of CDSOA, said CAFC.

All ADPs Eligible for Full Distributions, Regardless of Late Eligibility Determination

CAFC also remanded CBP’s determination that Chez Sidney could only recover the distributions to which it was entitled to the extent these funds are either recoverable from the ADPs who initially received them or are available in the Special Account. CDSOA says that CBP “shall distribute all funds” to eligible ADPs, and Chez Sidney should not be treated as a second-class ADP.

CAFC Reverses, Remands; Chez Sidney is an ADP, and CBP Must Distribute All Funds, w/ Interest

Therefore, CAFC reversed the ITC’s determination, and said Chez Sidney was an ADP eligible for CDSOA funds. CAFC also remanded CIT’s affirmance of CBP’s determination on CDSOA distributions to “fashion a remedy that ensures Chez Sidney will receive the money to which it is entitled, along with such interest as may be provided in accordance with the law.”