CBP Withholding Nearly $7.4 Million in Special Account Funds Related to CDSOA
CBP said it's withholding a total of $7,373,556.45 from the Special Account as a result of pending litigation related to the Continued Dumping and Subsidy Offset Act of 2000, and said it will also begin withholding funds from the Special Account associated with any cases involved in ongoing litigation until the amounts at issue in the pending litigation have been withheld.
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(CBP earlier listed litigation related to CDSOA (see ITT's Online Archives 12112328). The Court of International Trade is hearing the cases (for example, see ITT's Online Archives 12061803)).
This process will continue until a final decision is reached in the pending litigation, CBP said: "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."
A significant amount of litigation has challenged various provisions of the CDSOA, most notably the definition of the term “affected domestic producer,” CBP noted. In two decisions, the Court of Appeals for the Federal Circuit (CAFC) upheld the constitutionality of the support requirement contained in the CDSOA, it said. In SKF USA, Inc. v. United States, 556 F. 3d 1337 (Fed. Circ. 2009), the CAFC held that the CDSOA’s support requirement did not violate either the First Amendment or the Fifth Amendment. In PS Chez Sidney, L.L.C. v. United States ITC, 409 Fed. Appx. 327 (Fed. Circ. 2010), 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. Recently, in PS Chez Sidney, L.L.C. v. United States ITC, 684 F.3d 1374 (2012), the CAFC held that PS Chez Sidney LLC was an affected domestic producer based on its statutory claims. Several other pending court cases may be significantly impacted by this decision, CBP said.
CBP listed 27 different cases in which funds were being withheld, most of them relatively small amounts but the largest at more than $2.55 million.