Notice2023-10928
Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 31, 2023
Issuing agencies
Homeland Security DepartmentU.S. Customs and Border Protection
Abstract
Pursuant to the Continued Dumping and Subsidy Offset Act of 2000, this document is U.S. Customs and Border Protection's (CBP) notice of intent to distribute assessed antidumping or countervailing duties (known as the continued dumping and subsidy offset) for Fiscal Year 2023 in connection with countervailing duty orders, antidumping duty orders, or findings under the Antidumping Act of 1921. This 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.
Full Text
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<title>Federal Register, Volume 88 Issue 104 (Wednesday, May 31, 2023)</title>
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[Federal Register Volume 88, Number 104 (Wednesday, May 31, 2023)]
[Notices]
[Pages 34934-35147]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10928]
[[Page 34933]]
Vol. 88
Wednesday,
No. 104
May 31, 2023
Part II
Department of Homeland Security
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U.S. Customs and Border Protection
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Distribution of Continued Dumping and Subsidy Offset to Affected
Domestic Producers; Notice
Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 /
Notices
[[Page 34934]]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
Distribution of Continued Dumping and Subsidy Offset to Affected
Domestic Producers
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Notice of intent to distribute offset for Fiscal Year 2023.
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SUMMARY: Pursuant to the Continued Dumping and Subsidy Offset Act of
2000, this document is U.S. Customs and Border Protection's (CBP)
notice of intent to distribute assessed antidumping or countervailing
duties (known as the continued dumping and subsidy offset) for Fiscal
Year 2023 in connection with countervailing duty orders, antidumping
duty orders, or findings under the Antidumping Act of 1921. This
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.
DATES: Certifications to obtain a continued dumping and subsidy offset
under a particular order or finding must be received by July 31, 2023.
Any certification received after July 31, 2023 will be summarily
denied, making claimants ineligible for the distribution.
ADDRESSES: Certifications and any other correspondence (whether by
mail, or an express or courier service) must be addressed to U.S.
Customs and Border Protection, Revenue Division, Attention: CDSOA Team,
6650 Telecom Drive, Suite 100, Indianapolis, IN, 46278.
FOR FURTHER INFORMATION CONTACT: Robin Batt, CDSOA Team, Revenue
Division, 6650 Telecom Drive, Suite 100, Indianapolis, IN, 46278;
telephone (317) 614-4462.
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 (the ``Act''). The provisions of the CDSOA are
contained in title X (sections 1001-1003) of the appendix of the Act
(H.R. 5426).
The CDSOA amended title VII of the Tariff Act of 1930 by adding
section 754 (codified at 19 U.S.C. 1675c) to provide that assessed
duties received pursuant to a countervailing duty order, an antidumping
duty order, or a finding under the Antidumping Act of 1921 will 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) who:
(A) Was a petitioner or interested party in support of a petition
with respect to which an antidumping duty order, a finding under the
Antidumping Act of 1921, or a countervailing duty order has been
entered;
(B) Remains in operation continuing to produce the product covered
by the countervailing duty order, the antidumping duty order, or the
finding under the Antidumping Act of 1921; and
(C) Has not been acquired by another company or business that is
related to a company that opposed the antidumping or countervailing
duty investigation that led to the order or finding (e.g., opposed the
petition or otherwise presented evidence in opposition to the
petition). The distribution that these parties may receive is known as
the continued dumping and subsidy offset.
Section 7601(a) of the Deficit Reduction Act of 2005 repealed 19
U.S.C. 1675c. According to section 7701 of the Deficit Reduction Act,
the repeal takes effect as if enacted on October 1, 2005. However,
section 7601(b) provides that all duties collected on an entry filed
before October 1, 2007, must be distributed as if 19 U.S.C. 1675c had
not been repealed by section 7601(a). The funds available for
distribution were also affected by section 822 of the Claims Resolution
Act of 2010 and section 504 of the Tax Relief, Unemployment Insurance
Reauthorization, and Job Creation Act of 2010.
Historically, the antidumping and countervailing duties assessed
and received by U.S. Customs and Border Protection (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. 66 FR 48546, Sept. 21, 2001; see also
19 CFR 159.64(e). 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. Id.
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 all surety payments received by CBP on or after
October 1, 2014, on CDSOA subject entries, as well as post-judgment
interest received by CBP on those surety payments (see 28 U.S.C. 1961).
On March 28, 2022, President Biden ordered the sequester of non-
exempt budgetary resources for Fiscal Year 2023 pursuant to section
251A of the Balanced Budget and Emergency Deficit Control Act of 1985,
as amended (87 FR 18603, March 31, 2022). To implement this sequester
during Fiscal Year 2023, the calculation of the Office of Management
and Budget (OMB) requires a reduction of 5.7 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 Fiscal Year 2023 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 Fiscal Year 2023 in the continued dumping and subsidy
offset for Fiscal Year 2023, which will be distributed not later than
60 days after the first day of Fiscal Year 2024 in accordance with 19
U.S.C. 1675c(c). In other words, the continued dumping and subsidy
offset that affected domestic producers receive for Fiscal Year 2023
will include the funds that were temporarily sequestered during Fiscal
Year 2023.
Because of the statutory constraints in the assessments of
antidumping and countervailing duties, as well as the additional time
involved when the Government must initiate litigation to collect
delinquent antidumping and countervailing duties, the CDSOA
distribution process will be continued for an undetermined period.
Consequently, the full impact of the CDSOA repeal on amounts available
for distribution has been 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.
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
[[Page 34935]]
to CBP a list of the affected domestic producers that are potentially
eligible to receive an offset in connection with an order or finding.
In this regard, 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 who are
potentially eligible to receive an offset. This list appears at the end
of this document.
A significant amount of litigation has challenged various
provisions of the CDSOA, including the definition of the term
``affected domestic producer.'' In two decisions, the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) upheld the
constitutionality of the support requirement contained in the CDSOA.
Specifically, in SKF USA Inc. v. United States Customs & Border Prot.,
556 F.3d 1337 (Fed. Cir. 2009), the Federal Circuit held that the
CDSOA's support requirement did not violate either the First or Fifth
Amendment. The Supreme Court of the United States denied plaintiff's
petition for certiorari, SKF USA, Inc. v. United States Customs &
Border Prot., 560 U.S. 903 (2010). Similarly, in PS Chez Sidney, L.L.C.
v. United States, 409 Fed. Appx. 327 (Fed. Cir. 2010), the Federal
Circuit summarily reversed the U.S. Court of International Trade's
judgment that the support requirement was unconstitutional, allowing
only plaintiff's non-constitutional claims to go forward. See PS Chez
Sidney, L.L.C. v. United States, 684 F.3d 1374 (Fed. Cir. 2012).
Furthermore, in two cases interpreting the CDSOA's language, the
Federal Circuit concluded that a producer who never indicates support
for a dumping petition by letter or through questionnaire response,
despite the act of otherwise filling out a questionnaire, cannot be an
affected domestic producer. Ashley Furniture Indus., Inc. et al. v.
United States, 734 F.3d 1306 (Fed. Cir. 2013), cert. denied, 135 S. Ct.
72 (2014); Giorgio Foods, Inc. v. United States et al., 785 F.3d 595
(Fed. Cir. 2015).
Domestic producers who are not on the USITC list but believe they
nonetheless are eligible for a CDSOA distribution under one or more
antidumping and/or countervailing duty cases are required, as are all
potential claimants that expressly appear on the list, to properly file
their certification(s) within 60 days after this notice is published.
Such domestic producers must allege all other bases for eligibility in
their certification(s). CBP will evaluate the merits of such claims in
accordance with the relevant statutes, regulations, and decisions.
Certifications that are not timely filed within the requisite 60 days
and/or that fail to sufficiently establish a basis for eligibility will
be summarily denied. Additionally, CBP may not make a final decision
regarding a claimant's eligibility to receive funds until certain legal
issues which may affect that claimant's eligibility are resolved. In
these instances, CBP may withhold an amount of funds corresponding to
the claimant's alleged pro rata share of funds from distribution
pending the resolution of those legal issues.
It should also be noted that the Federal Circuit ruled in Canadian
Lumber Trade Alliance v. United States, 517 F.3d 1319 (Fed. Cir. 2008),
cert. denied sub nom. United States Steel v. Canadian Lumber Trade
Alliance, 129 S. Ct. 344 (2008), that CBP was not authorized to
distribute such antidumping and countervailing duties to the extent
they were derived from goods from countries that are parties to the
North American Free Trade Agreement (NAFTA). Due to this decision, CBP
does not list cases related to NAFTA on the Preliminary Amounts
Available report, and no distributions will be issued on these cases.
Regulations Implementing the CDSOA
It is noted that CBP published Treasury Decision (T.D.) 01-68
(Distribution of Continued Dumping and Subsidy Offset to Affected
Domestic Producers) in the Federal Register (66 FR 48546) on September
21, 2001, which was effective as of that date, to implement the CDSOA.
The final rule added subpart F to part 159 of title 19, Code of Federal
Regulations (19 CFR part 159, subpart F (sections 159.61-159.64)). More
specific guidance regarding the filing of certifications is provided in
this notice to aid affected domestic producers and other domestic
producers alleging eligibility (``claimants'' or ``domestic
producers'').
Notice of Intent To Distribute Offset
This document announces that CBP intends to distribute to affected
domestic producers the assessed antidumping or countervailing duties,
section 1677g interest, and interest provided for in 19 U.S.C. 4401
that are available for distribution in Fiscal Year 2023 in connection
with those antidumping duty orders or findings or countervailing duty
orders that are listed in this document. All distributions will be
issued by paper check to the address provided by the claimants. Section
159.62(a) of title 19, Code of Federal Regulations (19 CFR 159.62(a)),
provides that CBP will publish such a notice of intention to distribute
at least 90 calendar days before the end of a fiscal year. Failure to
publish the notice at least 90 calendar days before the end of the
fiscal year will not affect an affected domestic producer's obligation
to file a timely certification within 60 days after the notice is
published. See Dixon Ticonderoga v. United States, 468 F.3d 1353, 1354
(Fed. Cir. 2006).
Certifications; Submission and Content
To obtain a distribution of the offset under a given order or
finding (including any distribution under 19 U.S.C. 4401), an affected
domestic producer (and anyone alleging eligibility to receive a
distribution) must submit a certification for each order or finding
under which a distribution is sought, to CBP, indicating its desire to
receive a distribution. To be eligible to obtain a distribution,
certifications must be received by CBP no later than 60 calendar days
after the date of publication of this notice of intent to distribute in
the Federal Register. Claimants are encouraged to submit certifications
electronically at <a href="https://www.pay.gov">https://www.pay.gov</a> under the Public Form Name,
``Continued Dumping and Subsidy Offset Act of 2000 Certification'' (CBP
Form Number 7401) to ensure CBP's timely receipt and to avoid any
potential delivery delays associated with mail or courier service. All
certifications not received by the 60th day will not be eligible to
receive a distribution.
As required by 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 section 159.63 to claim a
distribution. Section 159.62(b) also provides that the dollar amounts
subject to distribution that are contained in the Special Account for
each listed order or finding are to 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 website
(<a href="https://www.cbp.gov">https://www.cbp.gov</a>). However, the final amounts available for
disbursement may be higher or lower than the preliminary amounts.
CBP will provide general information to claimants regarding the
preparation of certification(s). However, it remains the sole
responsibility of the domestic producer to ensure that the
certification is correct, complete, and accurate so as to demonstrate
the eligibility of the domestic producer for the distribution
requested. Failure to ensure that the certification is correct,
complete, and accurate as provided in this notice will result in the
domestic producer not
[[Page 34936]]
receiving a distribution and/or a demand for the return of funds.
Specifically, to obtain a distribution of the offset under a given
order or finding (including any distribution under 19 U.S.C. 4401),
each potential claimant must timely submit a certification containing
the required information detailed below as to the eligibility of the
domestic producer (or anyone alleging eligibility) to receive the
requested distribution and the total amount of the distribution that
the domestic producer is claiming. Certifications should be submitted
electronically at <a href="https://www.pay.gov">https://www.pay.gov</a> utilizing Public Form Name,
``Continued Dumping and Subsidy Offset Act of 2000 Certification'' (CBP
Form Number 7401) or by mail to U.S. Customs and Border Protection,
Revenue Division, Attention: CDSOA Team, 6650 Telecom Drive, Suite 100,
Indianapolis, IN, 46278. 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 or allege another basis for eligibility. Any false
statements made in connection with certifications submitted to CBP may
give rise to liability under the False Claims Act (see 31 U.S.C. 3729-
3733) and/or to criminal prosecution.
A successor to a company that was an affected domestic producer at
the time of acquisition should consult 19 CFR 159.61(b)(1)(i). Any
company that files a certification claiming to be the successor company
to an affected domestic producer will be deemed to have consented to
joint and several liability for the return of any overpayments arising
under 19 CFR 159.64(b)(3) that were previously paid to the predecessor.
CBP may require the successor company to provide documents to support
its eligibility to receive a distribution as set out in 19 CFR
159.63(d). Additionally, any individual or company who purchases any
portion of the operating assets of an affected domestic producer, a
successor to an affected domestic producer, or an entity that otherwise
previously received distributions may be jointly and severally liable
for the return of any overpayments arising under 19 CFR 159.64(b)(3)
that were previously paid to the entity from which the operating assets
were purchased or its predecessor, regardless of whether the purchasing
individual or company is deemed a successor company for purposes of
receiving distributions.
A member company (or its successor) of an association that appears
on the list of affected domestic producers in this notice, where the
member company itself does not appear on this list, should consult 19
CFR 159.61(b)(1)(ii). Specifically, for a certification under 19 CFR
159.61(b)(1)(ii), the claimant must name the association of which it is
a member, specifically establish that it was a member of the
association at the time the association filed the petition with the
USITC, and establish that the claimant is a current member of the
association.
In order to promote accurate filings and more efficiently process
the distributions, we offer the following guidance:
<bullet> If claimants are members of an association but the
association does not file on their behalf, the association will need to
provide its members with a statement that contains notarized company-
specific information including dates of membership and an original
signature from an authorized representative of the association.
<bullet> An association filing a certification on behalf of a
member must also provide a power of attorney or other evidence of legal
authorization from each of the domestic producers it is representing.
<bullet> Any association filing a certification on behalf of a
member is responsible for verifying the legal sufficiency and accuracy
of the member's financial records, which support the claim, and is
responsible for that certification. As such, an association filing a
certification on behalf of a member is jointly and severally liable
with the member for repayment of any claim found to have been paid or
overpaid in error.
The association may file a certification in its own right to claim
an offset for that order or finding, but its qualifying expenditures
would be limited to those expenditures that the association itself has
incurred after the date of the order or finding in connection with the
particular case.
As provided in 19 CFR 159.63(a), certifications to obtain a
distribution of an offset (including any distribution under 19 U.S.C.
4401) must be received by CBP no later than 60 calendar days after the
date of publication of the notice of intent in the Federal Register.
All certifications received after the 60-day deadline will be summarily
denied, making claimants ineligible for the distribution regardless of
whether or not they appeared on the USITC list.
A list of all certifications received will be published on the CBP
website (<a href="https://www.cbp.gov">https://www.cbp.gov</a>) shortly after the receipt deadline. This
publication will not confirm acceptance or validity of the
certification, but merely receipt of the certification. Due to the high
volume of certifications, CBP is unable to respond to individual
telephone or written inquiries regarding the status of a certification
appearing on the list.
While there is no required format for a certification, CBP has
developed a standard certification form to aid claimants in filing
certifications. The certification form is available at <a href="https://www.pay.gov">https://www.pay.gov</a> under the Public Form Name ``Continued Dumping and Subsidy
Offset Act of 2000 Certification'' (CBP Form Number 7401) or by
directing a web browser to <a href="https://www.pay.gov/public/form/start/8776895/">https://www.pay.gov/public/form/start/8776895/</a>. The certification form can be submitted electronically
through <a href="https://www.pay.gov">https://www.pay.gov</a> or by mail. All certifications not
submitted electronically must include original signatures.
Regardless of the format for a certification, per 19 CFR 159.63(b),
the certification must contain the following information:
(1) The date of this Federal Register notice;
(2) The Department of Commerce antidumping or countervailing duty
case number (for example, A-331-802);
(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 mailing address of the domestic producer (if a post office
box, the physical 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), mailing address, and, if available,
facsimile transmission number(s) and electronic mail (email)
address(es) for the person(s). Correspondence from CBP may be directed
to the designated contact(s) by either mail or phone or both;
(9) The total dollar amount claimed;
(10) The dollar amount claimed by category, as described in the
section below entitled ``Amount Claimed for Distribution'';
[[Page 34937]]
(11) A statement of eligibility, as described in the section below
entitled ``Eligibility to Receive Distribution''; and
(12) For certifications not submitted electronically through
<a href="https://www.pay.gov">https://www.pay.gov</a>, an original signature by an individual legally
authorized to bind the producer.
Qualifying Expenditures That May Be Claimed for Distribution
Qualifying expenditures that may be offset under the CDSOA
encompass those expenditures incurred by the domestic producer after
issuance of an antidumping duty order or finding or a countervailing
duty order (including expenditures incurred on the date of the order's
issuance), and prior to its termination, provided that such
expenditures fall within certain categories. See 19 CFR 159.61(c). The
CDSOA repeal language parallels the termination of an order or finding.
Therefore, for duty orders or findings that have not been previously
revoked or were not revoked prior to October 1, 2007, expenses must be
incurred before October 1, 2007, to be eligible for offset. For duty
orders or findings that were revoked prior to October 1, 2007, expenses
must be incurred before the effective date of the revocation to be
eligible for offset. For example, assume for case A-331-802 Certain
Frozen Warm-Water Shrimp and Prawns from Ecuador, that the order date
is February 1, 2005, and that the revocation effective date is August
15, 2007. In this case, eligible expenditures would have to be incurred
on or after February 1, 2005, up to and including August 14, 2007;
expenditures incurred on or after August 15, 2007, cannot be included
as eligible qualifying expenditures for A-331-802.
For the convenience and ease of the domestic producers, CBP is
providing guidance on what the agency takes into consideration when
making a calculation for each of the following categories:
(1) Manufacturing facilities (Any facility used for the
transformation of raw material into a finished product that is the
subject of the related order or finding);
(2) Equipment (Goods that are used in a business environment to aid
in the manufacturing of a product that is the subject of the related
order or finding);
(3) Research and development (Seeking knowledge and determining the
best techniques for production of the product that is the subject of
the related order or finding);
(4) Personnel training (Teaching of specific useful skills to
personnel, that will improve performance in the production process of
the product that is the subject of the related order or finding);
(5) Acquisition of technology (Acquisition of applied scientific
knowledge and materials to achieve an objective in the production
process of the product that is the subject of the related order or
finding);
(6) Health care benefits for employees paid for by the employer
(Health care benefits paid to employees who are producing the specific
product that is the subject of the related order or finding);
(7) Pension benefits for employees paid for by the employer
(Pension benefits paid to employees who are producing the specific
product that is the subject of the related order or finding);
(8) Environmental equipment, training, or technology (Equipment,
training, or technology used in the production of the product that is
the subject of the related order or finding, that will assist in
preventing potentially harmful factors from affecting the environment);
(9) Acquisition of raw materials and other inputs (Purchase of
unprocessed materials or other inputs needed for the production of the
product that is the subject of the related order or finding); and
(10) Working capital or other funds needed to maintain production
(Assets of a business that can be applied to its production of the
product that is the subject of the related order or finding).
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 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 for the order or finding being
certified 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 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)-(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 some prior fiscal years 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 be related to a specific case. Any
false statements made to CBP concerning the amount of distribution
being claimed as an offset may give rise to liability under the False
Claims Act (see 31 U.S.C. 3729-3733) and/or to criminal prosecution.
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 or on another
legal basis. 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)). Any false statements made in connection with
certifications submitted to CBP may give rise to liability under the
False Claims Act (see 31 U.S.C. 3729-3733) and/or to criminal
prosecution.
Furthermore, under 19 CFR 159.63(b)(3)(ii), where a domestic
producer files a separate certification for more than one 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 19 CFR
159.63(b)(3)(iii), the certification must include information as to
whether the domestic producer remains in operation at the time the
certifications are filed 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 19 CFR
159.63(b)(3)(iii), the domestic producer must state whether it has been
acquired by a company that opposed the investigation or was acquired by
a business related to a company that opposed the investigation. If a
domestic producer has been so acquired, the producer will not be
considered an affected domestic producer entitled to receive a
[[Page 34938]]
distribution. However, CBP may not make a final decision regarding a
claimant's eligibility to receive funds until certain legal issues
which may affect that claimant's eligibility are resolved. In these
instances, CBP may withhold an amount of funds corresponding to the
claimant's alleged pro rata share of funds from distribution pending
the resolution of those legal issues.
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''). Moreover, as provided in 19 CFR 159.64(b)(3), all
overpayments to affected domestic producers are recoverable by CBP, and
CBP reserves the right to use all available collection tools to recover
overpayments, including but not limited to garnishments, court orders,
administrative offset, enrollment in the Treasury Offset Program, and/
or offset of tax refund payments. Overpayments may occur for a variety
of reasons, including but not limited to: reliquidations, court
actions, settlements, insufficient verification of a certification in
response to an inquiry from CBP, and administrative errors. With
diminished amounts available over time, the likelihood that these
events will require the recovery of funds previously distributed will
increase. As a result, domestic producers who receive distributions
under the CDSOA may wish to set aside any funds received in case it is
subsequently determined that an overpayment has occurred. CBP considers
the submission of a certification and the negotiation of any
distribution checks received as acknowledgements and acceptance of the
claimant's obligation to return those funds upon demand.
Review and Correction of Certification
A certification that is submitted in response to this notice of
intent to distribute and received within 60 calendar days after the
date of publication of the notice in the Federal Register may, at CBP's
sole discretion, be subject to review 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 within 15 business days after
the close of the 60-calendar-day filing period, as provided in 19 CFR
159.63(c). CBP must receive a corrected certification from the domestic
producer and/or an association filing on behalf of an association
member within 10 business days from the date of the original denial
letter. Failure to receive a corrected certification within 10 business
days will result in denial of the certification at issue. The return of
a certification for correction does not preclude CBP from taking other
actions related to the incorrect or incomplete initial certification.
It is the sole responsibility of the domestic producer to ensure that
the certification is correct, complete, and accurate so as to
demonstrate the eligibility of the domestic producer to the
distribution requested. Failure to ensure that the certification is
correct, complete, and accurate will result in the domestic producer
not receiving a distribution and/or a demand for the return of funds,
in addition to other potential legal and administrative consequences.
Verification of Certification
Certifications are subject to CBP's verification. The burden
remains on each claimant to fully substantiate all elements of its
certification. As such, claimants may be required to provide copies of
additional records for further review by CBP. Therefore, parties are
required to maintain, and be prepared to produce, records adequately
supporting their claims for a period of five years after the filing of
the certification (19 CFR 159.63(d)). The records must demonstrate that
each qualifying expenditure enumerated in the certification was
actually incurred, 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. Although CBP will accept
comments and information from the public and other domestic producers,
CBP retains complete discretion regarding the initiation and conduct of
investigations stemming from such information. In the event that a
distribution is made to a domestic producer from whom CBP later seeks
verification of the certification and sufficient supporting
documentation is not provided as determined by CBP, then the amounts
paid to the affected domestic producer are recoverable by CBP as an
overpayment. CBP reserves the right to use all available collection
tools to recover overpayments, including but not limited to
garnishments, court orders, administrative offset, enrollment in the
Treasury Offset Program, and/or offset of tax refund payments. CBP
considers the submission of a certification and the negotiation of any
distribution checks received as acknowledgements and acceptance of the
claimant's obligation to return those funds upon demand. Failure to
repay overpayments upon demand may result in administrative
consequences. Additionally, the submission of false statements,
documents, or records in connection with a certification or
verification of a certification may give rise to liability under the
False Claims Act (see 31 U.S.C. 3729-3733) and/or to criminal
prosecution.
Disclosure of Information in Certifications; Acceptance by Producer
The name of the claimant, the total dollar amount claimed by the
party on the certification, as well as the total dollar amount that CBP
actually disburses to that affected domestic producer as an offset,
will be available for disclosure to the public, as specified in 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
and a waiver of any right to privacy or non-disclosure. Additionally, a
statement in a certification that this information is proprietary and
exempt from disclosure may 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 who
are potentially eligible to receive an offset. Those domestic producers
not on the list must allege another basis for eligibility in their
certification. Appearance of a domestic producer on the list is not a
guarantee of distribution.
Dated: May 17, 2023.
Jeffrey Caine,
Chief Financial Officer, U.S. Customs and Border Protection.
BILLING CODE 9111-14-P
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[FR Doc. 2023-10928 Filed 5-30-23; 8:45 am]
BILLING CODE 9111-14-C
</pre></body>
</html>Indexed from Federal Register on May 31, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.