US Court of International Trade (CIT)

Current Status:

“Section 129” and Duty Refund Case

Canada and the Canadian Lumber Trade Alliance (CLTA) filed a complaint with the CIT on 2 issues:

1)   'the Section 129 issue':  Commerce ignored the NAFTA injury panel because of its revised determination in connection with the WTO injury panel.  See also information on the [NAFTA Panel on Injury] on this website.

2)   'the duty refund issue':  Commerce alleges that even if the CVD and AD orders are revoked, it does not have to pay back duties on imports before the time of the revocation.

NEW!!!  On July 21, the CIT ruled that the US effort to keep the Lumber AD and CVD Orders in place even after the ECC victory in the injury appeal (the Section 129 issue) is unlawful under US law.  This means that there is not a valid injury finding supporting the AD and CVD Orders, and therefore the Orders must be revoked under US law.  However, the CIT ruling is subject to appeal.

The Court has not yet ruled on the duty refund issue.  The July 21 decision is an interim decision and will not take effect until the Court issues its decision on the duty refund issue.  The Court issued a series of technical questions to the Parties on the duty refund issue, and has asked for briefing on these supplemental questions within 20 days. After this briefing, the Court will consider the duty refund issue further and issue its decision on duty refund and its final Judgment.   

The CIT decision will almost certainly be appealed to the Court of Appeals, which would take about another year to mid 2007 at the earliest.  The Court of Appeals decision would be binding in future DOC determinations.

Byrd Amendment Case

NEW!!!  On July 14, 2006, the CIT ruled that the Byrd Amendment does not apply to duties collected from Canada and Mexico.

Under NAFTA, each country is allowed to apply its antidumping and countervailing duty laws to the others, and to change its CVD and AD rules.  However, if a country changes its rules, as the US did when it enacted the Byrd Amendment, it must specifically name the other NAFTA members in order for the change to apply to them.  The US did not specifically name Canada and Mexico as being under the Byrd Amendment, and so the CIT found that the US cannot use the Byrd Amendment to distribute duties collected from Canadian and Mexican companies.