On May 31, 2017, U.S. Customs and Border Protection (CBP) published in the Federal Register a notice of intent to distribute offset for Fiscal Year (FY) 2017, pursuant to the Continued Dumping and Subsidy Offset Act of 2000 (better known as the “Byrd Amendment”). CBP is required to distribute assessed antidumping duties [ADD] or countervailing duties [CVD] (known as the continued dumping and subsidy offset) for FY 2017 in connection with CVD orders, ADD orders, or findings under the Antidumping Act of 1921 to affected domestic producers who file a timely certification to claim a portion of the offset for the listed orders or findings.
The document provides the instructions for affected domestic producers, or anyone alleging eligibility to receive a distribution, to file certifications to claim a distribution in relation to the listed orders or findings. Certifications to obtain a continued dumping and subsidy offset under a particular order or finding must be received by July 31, 2017 Any certification received after July 31, 2017 will be summarily denied, making claimants ineligible for the distribution.
Although the CDSOA was repealed in 2005, because of the statutory constraints in the assessments of ADD and CVD, as well as the additional time involved when the Government must initiate litigation to collect delinquent ADD and CVD, the CDSOA distribution process will be continued for an undetermined period. Consequently, the full impact of the CDSOA repeal on amounts available for distribution may be delayed for several years. It should also be noted that amounts distributed may be subject to recovery as a result of reliquidations, court actions, administrative errors, and other reasons.
Historically, the ADD and CVD assessed and received by CBP on CDSOA-subject entries, along with the interest assessed and received on those duties pursuant to 19 U.S.C. 1677g, were transferred to the CDSOA Special Account for distribution. Other types of interest, including delinquency interest that accrued pursuant to 19 U.S.C. 1505(d), equitable interest under common law, and interest under 19 U.S.C. 580, were not subject to distribution.
Section 605 of the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) (Pub. L. 114–125, February 24, 2016; codified as 19 U.S.C. 4401), provided new authority for CBP to deposit into the CDSOA Special Account for distribution delinquency interest that accrued pursuant to 19 U.S.C. 1505(d), equitable interest under common law, and interest under 19 U.S.C. 580 for payments received on or after October 1, 2014, on CDSOA subject entries if the payment was made by a surety in connection with a customs bond pursuant to a court order or judgment, or a litigation settlement with the surety, including any payments made during the litigation by the surety with respect to the bond.
On February 9, 2016, President Obama ordered the sequester of nonexempt budgetary resources for Fiscal Year 2017 pursuant to section 251A of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended. To implement this sequester during FY 2017, the calculation of the Office of Management and Budget (OMB) requires a reduction of 6.9 percent of the assessed duties and interest received in the CDSOA Special Account (account number 015–12–5688). OMB has concluded that any amounts sequestered in the CDSOA Special Account during FY 2017 will become available in the subsequent fiscal year. See 2 U.S.C. 906(k)(6). As a result, CBP intends to include the funds that are temporarily reduced via sequester during FY 2017 in the continued dumping and subsidy offset for FY 2017, which will be distributed not later than 60 days after the first day of FY 2018 in accordance with 19 U.S.C. 1675c(c). In other words, the continued dumping and subsidy offset that affected domestic producers receive for FY 2017 will include the funds that were temporarily sequestered during FY 2017.