CBP Demands Repayment of Byrd Amendment Distributions for Imports from Canada and Mexico

December 10, 2008

The Court of Appeals for the Federal Circuit (CAFC) recently ruled that the Continued Dumping and Subsidy Offset Act (CDSOA, commonly known as the Byrd Amendment), which required U.S. Customs and Border Protection (CBP) to distribute antidumping and countervailing duty revenues directly to affected U.S. Producers, did not apply to imports from Canada and Mexico.  The Supreme Court denied review of the case last month.  As a result, CBP has demanded the repayment of tens of millions of dollars in distributions made to U.S. Producers from 2003 to 2005 in connection with import revenues from the two countries within 30 days.

At issue is an April 2006 decision by the Court of International Trade (CIT) which was subsequently upheld by the CAFC that the Byrd Amendment cannot apply to imports from countries that are parties to the North American Free Trade Agreement (NAFTA) for technical reasons.  The CIT ruled that under Section 408 of the NAFTA implementing act, CBP is not authorized to apply the Byrd Amendment to goods from Canada or Mexico.  Section 408 states that any amendment to Title VII of the Tariff Act of 1930, which covers U.S. antidumping and countervailing duty law, shall apply to goods from a NAFTA country only to the extent specified in the amendment.  While the Byrd Amendment amended Title VII, it did not specify that it applied to goods from Canada or Mexico.  Thus, the CIT found that the Byrd Amendment could not be applied to Canadian and Mexican imports. 

It has been reported that U.S. companies have already objected to the demand for repayment under the terms laid out by CBP.  U.S. companies have requested that CBP either withdraw the demands expressed in the letters or extend the repayment period.