News of Note
United States Customs And Border Protection Announces Its Intent To Distribute Withheld Byrd Amendment Funds To Affected Domestic Producers
On December 8, 2010, United States Customs And Border Protection (“Customs”) announced that it will distribute withheld funds that were set aside for distribution under the Continued Dumping and Subsidy Offset Act, commonly referred to as the Byrd Amendment.
Congress passed the Byrd Amendment in 2000 to provide monetary relief to United States industries affected by unfair trade practices. In PS Chez Sidney v. United States and SKF USA, Inc. v. United States, the United States Court of International Trade held that the Byrd Amendment violated the free speech and equal protection guarantees of the United States Constitution because it made eligibility for disbursements contingent on support for antidumping or countervailing duty petitions. In response to those decisions and a deluge of copycat law suits, Customs began voluntarily withholding distributions until the litigation could be resolved.
In February 2009, the United States Court of Appeals for the Federal Circuit reversed the Court of International Trade’s decision in SKF, holding the Byrd Amendment to be constitutional. In October 2010, the Federal Circuit upheld the constitutionality of the Byrd Amendment in Chez Sidney.
With the constitutional questions resolved, Customs determined that further delay in distributing Byrd Amendment funds is no longer justified for remaining copycat cases. In mid-December 2010, Customs filed notice of its determination in each of the court cases in which it intends to distribute withheld funds. Parties have an opportunity to respond in early January 2011, and it will be up to the Court to decide whether Customs may proceed with distributions.