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CBP Lists Ongoing Litigation Involved in Withholding of Byrd Amendment Funds for FY2012

November 23, 2012 by Tim Warren|Customs

CBP will withhold funds from the Special Account related to ongoing litigation involving questions of affected domestic producers and the Continued Dumping and Subsidy Offset Act (CDSOA, aka the Byrd Amendment), said CBP. The withholding of funds is due to several court cases reviewing CDSOA provisions. The Court of Appeals for the Federal Circuit recently reversed the International Trade Commission’s denial of eligibility for benefits under the CDSOA for U.S. crawfish producer PS Chez Sidney.

(See ITT's Online Archives 12071604 for summary of the CAFC's decision on PS Chez Sidney.)

Funds Were Withheld Due to Litigation Challenging CDSOA Provisions

CBP stated that a significant amount of litigation has challenged various provisions of the CDSOA, most notably the definition of the term “affected domestic producer.”

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.

CBP Withholding PS Chez Sidney Funds

CBP is withholding from the Special Account for case A-570-848 the funds CBP previously determined that PS Chez Sidney would be eligible to receive if it ultimately prevailed. CBP will also begin withholding funds from the Special Account associated with any cases involved in ongoing litigation. This process will continue until a final decision is reached in the pending litigation, said CBP.

To the extent that plaintiffs in these or any additional cases, are determined to be entitled to receive amounts exceeding those withheld as set out in this paragraph and/or are otherwise later determined to be recoverable, CBP reminds prior recipients of these funds that they may be required to return some or all of the funds previously received in accordance with applicable law and regulations.

(The 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.)

For FY2012, the following cases are impacted by CBP’s decision to withhold funds in the Special Account:

(See ITT's Online Archives 12053118 for summary of CBP's intent to distribute FY 2012 funds.)

CBP contact- Melissa Edwards (317) 614-4462 or CDSOA@dhs.gov