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April 09, 2006 

CIT Holds that Byrd Amendment Funds Not Applicable to Imports from Canada and Mexico

Reuters reports on Friday's decision by the U.S. Court of International Trade (CIT) holding that U.S. Customs and Border Protection violated the North American Free Trade Agreement (NAFTA) by applying the Byrd Amendment to antidumping and countervailing duties on products from Canada and Mexico. In his 116-page decision in Canadian Lumber Trade Alliance v. United States, Judge Donald Pogue held that that under NAFTA, any trade measure that targets imports must specifically mention Canada and Mexico to be legally valid for those nations.

While the article mentions that the decision will have major implications in the long-running countervailing duty case involving softwood lumber from Canada, since it would remove a major incentive for the U.S. industry to continue the litigation, the article fails to note that the question of the remedy that should be applied has not yet been settled. The Canadian plaintiffs are seeking both prospective injunctive relief and disgorgement of all past Byrd Amendment distributions paid by CBP. However, the U.S. contends that CBP is only required to return and "overpayments." As a result, Judge Pogue ordered the parties to submit any jointly proposed remedy to the court by May 8, 2006. If the parties cannot agree on a proposed remedy, the parties must by that date submit recommendations and arguments concerning the proper remedy and the scope of such remedy.




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