The Court of Appeals for the Federal Circuit has upheld a decision by the Court of International Trade that the U.S. illegally applied the so-called Byrd Amendment to goods from Canada and Mexico. The Byrd Amendment – formally known as the Continued Dumping and Subsidy Offset Act – required U.S. Customs and Border Protection to distribute antidumping and countervailing duty revenues to affected U.S. companies. It was repealed in 2006 but still applies to AD/CV duties on entries of goods made and filed before Oct. 1, 2007.
In its 2006 decision in Canadian Lumber Trade Alliance et al. v. U.S., the CIT held that pursuant to Section 408 of the NAFTA Implementation Act the CDSOA does not apply to AD and CV duties assessed on imports of goods from Canada or Mexico. Section 408 states that the U.S. may only apply changes to its AD/CV duty laws (like the CDSOA) to the other NAFTA parties if (a) the amending statute specifies that it applies to those countries and (b) the U.S. notifies and consults with those countries in advance of the changes. In the case of the CDSOA, the CIT said, neither of these criteria was met.
Following the CIT’s decision, CBP announced that for fiscal year 2006 and beyond it would withhold distributions under the CDSOA that derive from AD and CV duties assessed on goods from Canada and Mexico. The CIT later issued a permanent injunction against distributions of duties assessed on softwood lumber, magnesium and hard red spring wheat from Canada.
In a Feb. 25 decision, the CAFC:
• upheld the CIT’s ruling that the CDSOA did not meet the requirements of Section 408 and therefore does not apply to goods imported from Canada or Mexico;
• agreed with the CIT that the government of Canada does not have standing in this case but stated that this is not because the government pursued a remedy at the WTO, as the CIT asserted, but because it failed to demonstrate how it was specifically injured by the CDSOA;
• upheld the CIT’s determination that the Canadian Wheat Board has standing in this case under the doctrine of “competitor standing;” and
• modified the injunction issued by the CIT so that it pertains only to hard red spring wheat because (a) there are no longer any AD or CV duties on softwood lumber remaining to be distributed (due to the revocation of the AD/CV duty orders and liquidation of all relevant entries pursuant to the 2006 Softwood Lumber Agreement) and (b) the sole Canadian producer of magnesium
World Trade/Interactive
