Details of CIT's 2006 Ruling that Customs' Application of Byrd Amendment Violates NAFTA, Etc.
In Canadian Lumber Trade Alliance, et al. v. U.S., et al., (Slip Op 06-48) the CIT found that Customs violated the North American Free Trade Agreement Implementation Act in applying the Byrd Amendment to antidumping and countervailing duties on goods from Canada and Mexico.
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In a related decision involving the same parties and issue (Slip Op 06-104), the CIT ruled in favor of declaratory and injunctive relief.
Due to these CIT decisions, U.S. Customs and Border Protection announced it was withholding fiscal year (FY) 2006 and subsequent years' Byrd Amendment AD and CV distributions for Canadian and Mexican goods, pending an appeal. (See ITT's Online Archives or 10/12/06 news, 06101225, for BP summary. See ITT's Online Archives or 06/05/07 news, 07060520, for BP summary of CBP notice of intent to distribute FY 2007 AD/CV Byrd Amendment revenues to affected domestic producers.)
(Section 408 of the NAFTA Implementation Act provides that any amendment to the Tariff Act of 1930 or any successor statute shall apply to goods from a NAFTA country only to the extent specified in the amendment. Subsequently, Congress amended Title VII of the Tariff Act with the Byrd Amendment, which made it possible for Customs to deposit collected AD and CV duties into special accounts which were then distributed to companies and worker groups that supported the petition for a particular order.
Several Canadian exporters and the government of Canada brought this case before the CIT, asking that the CIT find the distributions unlawful and permanently enjoin future distributions.)
Customs claimed that the Byrd distributions fall outside the scope of Section 408 of the NAFTA Implementation Act, as the Byrd Amendment applies to money, not to goods.
However, the CIT stated that goods are the subject matter regulated by AD and CV duty laws, so that Section 408's apply to goods clause applies to the distribution of money as well. As a result, the CIT ruled that Customs' actions in distributing such funds were unlawful based on the plain language of Section 408.
CIT Slip Op. 06-48 (dated 04/07/06) available at http://www.cit.uscourts.gov/slip_op/Slip_op06/06-48.pdf
CIT Slip Op. 06-104 (dated 07/14/06) available at http://www.cit.uscourts.gov/slip_op/Slip_op06/06-104.pdf