Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers

AGENCY:

Customs and Border Protection, Department of Homeland Security.

ACTION:

Notice of intent to distribute offset for fiscal year 2004.

SUMMARY:

Pursuant to the Continued Dumping and Subsidy Offset Act of 2000, this document is U.S. Customs and Border Protection's notice of intention to distribute assessed antidumping or countervailing duties (known as the continued dumping and subsidy offset) for Fiscal Year 2004 in connection with antidumping duty orders or findings or countervailing duty orders. This document sets forth the list of individual antidumping duty orders or findings and countervailing duty orders, together with the affected domestic producers associated with each order or finding who are potentially eligible to receive a distribution. This document also provides the instructions for affected domestic producers to file written certifications to claim a distribution in relation to the listed orders or findings.

DATES:

Written certifications to obtain a continued dumping and subsidy offset under a particular order or finding must be received by August 2, 2004.

ADDRESSES:

Written certifications and any other correspondence should be addressed to the Assistant Commissioner, Office of Finance, U.S. Customs and Border Protection, National Finance Center, Attention: Sarah Buelo, P.O. Box 68940, Indianapolis, IN, 46268. Any delivery by an express or courier service requiring a street address may be addressed to 6026 Lakeside Blvd., Indianapolis, IN, 46278.

FOR FURTHER INFORMATION CONTACT:

For questions regarding certifications, contact Sarah Buelo, National Finance Center, (317) 614-4462. For questions regarding legal aspects, contact L. LaToya Burley, Office of Regulations and Rulings, (202) 572-8793.

SUPPLEMENTARY INFORMATION:

Background

The Continued Dumping and Subsidy Offset Act of 2000 (CDSOA) was enacted on October 28, 2000, as part of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2001 (“Act”). The provisions of the CDSOA are contained in title X (sections 1001-1003) of the Act.

The CDSOA, in section 1003 of the Act, amended title VII of the Tariff Act of 1930, by adding a new section 754 (codified at 19 U.S.C. 1675c) in order to provide that assessed duties received pursuant to a countervailing duty order, an antidumping duty order, or an antidumping duty finding under the Antidumping Act of 1921 must be distributed to affected domestic producers for certain qualifying expenditures that these producers incur after the issuance of such an order or finding. The term “affected domestic producer” means any manufacturer, producer, farmer, rancher or worker representative (including associations of such persons) that:

(A) was a petitioner or interested party in support of a petition with respect to which an antidumping order, a finding under the Antidumping Act of 1921, or a countervailing duty order has been entered, and

(B) remains in operation.

The distribution that these parties may receive is known as the continued dumping and subsidy offset.

List of Orders or Findings and Affected Domestic Producers

It is the responsibility of the U.S. International Trade Commission (USITC) to ascertain and timely forward to U.S. Customs and Border Protection (CBP) a list of the affected domestic producers that are potentially eligible to receive an offset in connection with an order or finding.

To this end, it is noted that the USITC has supplied CBP with the list of individual antidumping and countervailing duty cases, and the affected domestic producers associated with each case that are potentially eligible to receive an offset. This list appears at the end of this document.

CBP Regulations Implementing the CDSOA

It is noted that CBP published a final rule in the Federal Register (66 FR 48546) on September 21, 2001, as T.D. 01-68, which was effective as of that date, in order to implement the CDSOA. The final rule added a new subpart F to part 159 of the CBP Regulations (19 CFR part 159, subpart F (§§ 159.61—159.64)).

Notice of Intent To Distribute Offset

This document announces that CBP intends to distribute to affected domestic producers the assessed antidumping or countervailing duties that are available for distribution in Fiscal Year 2004 in connection with those antidumping duty orders or findings or countervailing duty orders that are listed in this document. Section 159.62(a), CBP Regulations (19 CFR 159.62(a)), provides that CBP will publish such a notice of intention to distribute assessed duties at least 90 days before the end of a fiscal year.

Certifications; Submission and Content

To obtain a distribution of the offset under a given order or finding, an affected domestic producer must submit a certification to CBP indicating that the producer desires to receive a distribution.

As required by § 159.62(b), CBP Regulations (19 CFR 159.62(b)), this notice provides the case name and number of the order or finding concerned, as well as the specific instructions for filing a certification under § 159.63 to claim a distribution. Section 159.62(b) also provides that the dollar amounts subject to distribution that were contained in the Special Account for each listed order or finding would appear in this notice. However, these dollar amounts were not available in time for inclusion in this publication. The preliminary amounts will be posted on the CBP Web site ( http://www.cbp.gov ), for purposes of enabling affected domestic producers to determine whether it would be worthwhile to file a certification in a given case. The final amounts available for disbursement may be higher or lower than the preliminary amounts.

A successor to a company appearing on the list of affected domestic producers in this notice, or a member company of an association that appears on the list of affected domestic producers in this notice where the member company does not appear on the list, should consult §§ 159.61(b)(1)(i) or 159.61(b)(1)(ii), CBP Regulations (19 CFR 159.61(b)(1)(i) or 159.61(b)(1)(ii)) and see the note that appears at the end of this document regarding Candle Corporation of America.

Specifically, to obtain a distribution of the offset under a given order or finding, each affected domestic producer must timely submit a certification containing the required information detailed below as to the eligibility of the producer to receive the requested distribution and the total amount of the distribution that the producer is claiming. Certifications should be submitted to the Assistant Commissioner, Office of Finance, National Finance Center. The certification must enumerate the qualifying expenditures incurred by the domestic producer since the issuance of an order or finding and it must demonstrate that the domestic producer is eligible to receive a distribution as an affected domestic producer.

As provided in § 159.63(a), CBP Regulations (19 CFR 159.63(a)), certifications to obtain a distribution of an offset must be received by CBP no later than 60 days after the date of publication of the notice of intent in the Federal Register. A list of all certifications received will be published on the CBP Web site shortly after the receipt deadline. This publication will not confirm acceptance or validity of the certification, but merely receipt of the certification.

While there is no established format for a certification, the certification must contain the following information:

1. The date of this Federal Register notice;

2. The Commerce case number;

3. The case name (product/country);

4. The name of the domestic producer and any name qualifier, if applicable (for example, any other name under which the domestic producer does business or is also known);

5. The address of the domestic producer (if a post office box, the secondary street address must also appear) including, if applicable, a specific room number or department;

6. The Internal Revenue Service (IRS) number (with suffix) of the domestic producer, employer identification number, or social security number, as applicable;

7. The specific business organization of the domestic producer (corporation, partnership, sole proprietorship);

8. The name(s) of any individual(s) designated by the domestic producer as the contact person(s) concerning the certification, together with the phone number(s) and/or facsimile transmission number(s) and electronic mail (e-mail) address(es) for the person(s);

9. The total dollar amount claimed;

10. The dollar amount claimed by category, as described in the section below entitled “Amount Claimed for Distribution”;

11. A statement of eligibility, as described in the section below entitled “Eligibility to Receive Distribution”; and

12. A signature by a corporate officer legally authorized to bind the producer.

Qualifying Expenditures Which May Be Claimed for Distribution

Qualifying expenditures which may be offset by a distribution of assessed antidumping and countervailing duties encompass those expenditures that are incurred after the issuance of an antidumping duty order or finding or a countervailing duty order, and prior to its termination, provided that such expenditures fall within any of the following categories: (1) Manufacturing facilities; (2) Equipment; (3) Research and development; (4) Personnel training; (5) Acquisition of technology; (6) Health care benefits for employees paid for by the employer; (7) Pension benefits for employees paid for by the employer; (8) Environmental equipment, training, or technology; (9) Acquisition of raw materials and other inputs; and (10) Working capital or other funds needed to maintain production.

Amount Claimed for Distribution

In calculating the amount of the distribution being claimed as an offset, the certification must indicate: (1) The total amount of any qualifying expenditures currently and previously certified by the domestic producer, and the amount certified by category; (2) The total amount of those expenditures which have been the subject of any prior distribution under 19 U.S.C. 1675c; and (3) The net amount for new and remaining qualifying expenditures being claimed in the current certification (the total amount currently and previously certified as noted in item “(1)” above minus the total amount that was the subject of any prior distribution as noted in item “(2)” above). In accordance with 19 CFR 159.63(b)(2)(i)—(b)(2)(iii), CBP will deduct the amount of any prior distribution from the producer's claimed amount for that case. Total amounts disbursed by CBP under the CDSOA for Fiscal Year 2001, 2002 and 2003 are available on the CBP website.

Additionally, under 19 CFR 159.61(c), these qualifying expenditures must be related to the production of the same product that is the subject of the order or finding, with the exception of expenses incurred by associations which must relate to a specific case.

Eligibility To Receive Distribution

As noted, the certification must contain a statement that the domestic producer desires to receive a distribution and is eligible to receive the distribution as an affected domestic producer. Also, the domestic producer must affirm that the net amount certified for distribution does not encompass any qualifying expenditures for which distribution has previously been made (19 CFR 159.63(b)(3)(i)).

Furthermore, under § 159.63(b)(3)(ii), CBP Regulations (19 CFR 159.63(b)(3)(ii), where a party is listed as an affected domestic producer on more than one order or finding covering the same product and files a separate certification for each order or finding using the same qualifying expenditures as the basis for distribution in each case, each certification must list all the other orders or findings where the producer is claiming the same qualifying expenditures.

Moreover, as required by 19 U.S.C. 1675c(b)(1) and § 159.63(b)(3)(iii), CBP Regulations (19 CFR 159.63(b)(3)(iii)), the statement must include information as to whether the domestic producer remains in operation and continues to produce the product covered by the particular order or finding under which the distribution is sought. If a domestic producer is no longer in operation, or no longer produces the product covered by the order or finding, the producer will not be considered an affected domestic producer entitled to receive a distribution.

In addition, as required by 19 U.S.C. 1675c(b)(5) and § 159.63(b)(3)(iii), CBP Regulations (19 CFR 159.63(b)(3)(iii), the domestic producer must state whether it has been acquired by a company or business that is related to a company that opposed the antidumping or countervailing duty investigation that resulted in the order or finding under which the distribution is sought. If a domestic producer has been so acquired, the producer will not be considered an affected domestic producer entitled to receive a distribution.

The certification must be executed and dated by a party legally authorized to bind the domestic producer and it must state that the information contained in the certification is true and accurate to the best of the certifier's knowledge and belief under penalty of law, and that the domestic producer has records to support the qualifying expenditures being claimed (see section below entitled “Verification of Certification”).

Review and Correction of Certification

A certification that is submitted in response to this notice of distribution may be reviewed before acceptance to ensure that all informational requirements are complied with and that any amounts set forth in the certification for qualifying expenditures, including the amount claimed for distribution, appear to be correct. A certification that is found to be materially incorrect or incomplete will be returned to the domestic producer as provided in § 159.63(c), CBP Regulations (19 CFR 159.63(c)). It is the sole responsibility of the domestic producer to ensure that the certification is correct, complete and satisfactory so as to demonstrate the entitlement of the domestic producer to the distribution requested. Failure to ensure that the certification is correct, complete and satisfactory will result in the domestic producer not receiving a distribution.

Verification of Certification

Certifications are subject to CBP's verification. Therefore, parties are required to maintain records supporting their claims for a period of five years after the filing of the certification (see § 159.63(d), CBP Regulations (19 CFR 159.63(d))). The records must be those that are normally kept in the ordinary course of business. The records must support each qualifying expenditure enumerated in the certification and they must support how the qualifying expenditures are determined to be related to the production of the product covered by the order or finding.

Disclosure of Information in Certifications; Acceptance by Producer

The name of the affected domestic producer, the total dollar amount claimed by that party on the certification, as well as the total dollar amount that CBP actually disburses to that company as an offset, will be available for disclosure to the public, as specified in § 159.63(e), CBP Regulations (19 CFR 159.63(e)). To this extent, the submission of the certification is construed as an understanding and acceptance on the part of the domestic producer that this information will be disclosed to the public. Alternatively, a statement in a certification that this information is proprietary and exempt from disclosure will result in CBP's rejection of the certification.

List of Orders or Findings and Related Domestic Producers

The list of individual antidumping duty orders or findings and countervailing duty orders is set forth below, together with the affected domestic producers associated with each order or finding that are potentially eligible to receive an offset.

Note Regarding Candle Corporation of America and Blyth, Inc. v. United States

On April 8, 2003, the U.S. Court of International Trade (CIT) issued a decision concerning a successor company claim for a distribution under the Continued Dumping and Subsidy Offset Act of 2000 (CDSOA), 19 U.S.C. 1675c. Candle Corporation of America and Blyth, Inc. v. United States, No. 02-00751 Slip Op. 03-40 (Ct. Int'l Trade Apr. 8, 2003), appeal docketed, No. 03-1348 (Fed. Cir. April 28, 2003). The CIT found that the Candle Corporation of America (CCA) response to a 1986 ITC questionnaire “clearly indicates that CCA did not support the petition.” Slip Op at 13. The CIT reasoned that, although 19 CFR 159.61(b)(1)(i) permits a “successor company” to file a certification to claim an offset on behalf of its predecessor, the “eligibility for certification under the regulation is subject to the limitations imposed by 19 U.S.C. 1675c, which requires that a claimant (1) have [petitioned] or supported the petition, and (2) remain in operation.” Consequently, the CIT held that it was not arbitrary, capricious, an abuse of discretion or otherwise contrary to law for CBP to deny CCA's claim.

An appeal to the Federal Circuit has been filed. A final decision may affect future distributions. Assuming an appeal remains pending, CBP may withhold future distributions to affected companies.