Tuesday, June 1, 2010 Part III Department of Homeland Security Customs and Border Protection Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers; Notice VerDate Mar<15>2010 15:41 May 28, 2010 Jkt 220001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\01JNN2.SGM 01JNN2 erowe on DSK5CLS3C1PROD with NOTICES2 30530 Federal Register / Vol. 75, No. 104 / Tuesday, June 1, 2010 / Notices DEPARTMENT OF HOMELAND Background countervailing duty on an entry is not SECURITY The Continued Dumping and Subsidy available for distribution until the entry Offset Act of 2000 (CDSOA) was enacted is liquidated pursuant to the direction of Customs and Border Protection on October 28, 2000, as part of the the Department of Commerce and the duty is collected and deposited into the Distribution of Continued Dumping Agriculture, Rural Development, Food and Drug Administration, and Related special account; therefore, the and Subsidy Offset to Affected distribution process will continue until Domestic Producers Agencies Appropriations Act, 2001 (the ‘‘Act’’). The provisions of the CDSOA are all entries made before October 1, 2007, are liquidated and the antidumping and AGENCY: U.S. Customs and Border contained in title X (§§ 1001–1003) of countervailing duties are collected. Protection, Department of Homeland the Act. Security. The CDSOA, in § 1003 of the Act, Because of the statutory constraints in the assessments of antidumping and amended title VII of the Tariff Act of ACTION: Notice of intent to distribute countervailing duties, the distribution 1930, as amended, by adding a new offset for Fiscal Year 2010. process will be continued for an § 754 (codified at 19 U.S.C. 1675c) in undetermined period; however, the SUMMARY: Pursuant to the Continued order to provide that assessed duties amount of money available for Dumping and Subsidy Offset Act of received pursuant to a countervailing distribution can be expected to diminish 2000, this document is U.S. Customs duty order, an antidumping duty order, over time. It should also be noted that and Border Protection’s notice of intent or a finding under the Antidumping Act amounts distributed may be subject to to distribute assessed antidumping or of 1921 will be distributed to affected recovery as a result of reliquidations, countervailing duties (known as the domestic producers for certain continued dumping and subsidy offset) court actions, administrative errors, and qualifying expenditures that these other reasons. for Fiscal Year 2010 in connection with producers incur after the issuance of countervailing duty orders, such an order or finding. The term List of Orders or Findings and Affected antidumping duty orders, or findings ‘‘affected domestic producer’’ means any Domestic Producers under the Antidumping Act of 1921. manufacturer, producer, farmer, rancher It is the responsibility of the U.S. This document sets forth the case name or worker representative (including International Trade Commission and number of each order or finding for associations of such persons) who: (USITC) to ascertain and timely forward which funds may become available for (A) Was a petitioner or interested to U.S. Customs and Border Protection distribution, together with the list of party in support of a petition with (CBP) a list of the affected domestic affected domestic producers, based on respect to which an antidumping order, producers that are potentially eligible to the list supplied by the United States a finding under the Antidumping Act of receive an offset in connection with an International Trade Commission 1921, or a countervailing duty order that order or finding. In this regard, it is (USITC) associated with each order or has been entered, noted that USITC has supplied CBP finding, who are potentially eligible to (B) Remains in operation continuing with the list of individual antidumping receive a distribution. This document to produce the product covered by a and countervailing duty cases, and the also provides the instructions for countervailing duty order, an affected domestic producers associated affected domestic producers (and antidumping duty order, or a finding with each case who are potentially anyone alleging eligibility to receive a under the Antidumping Act of 1921, eligible to receive an offset. This list distribution) to file certifications to and appears at the end of this document. claim a distribution in relation to the (C) If a company, has not been The courts have interpreted various listed orders or findings. acquired by another company or provisions of the CDSOA, particularly DATES: Certifications to obtain a business that is related to a company those related to the definition of the continued dumping and subsidy offset that opposed the antidumping or term ‘‘affected domestic producer.’’ In under a particular order or finding must countervailing duty investigation that both SKF USA Inc. v. United States, 451 be received by August 2, 2010. Any led to the order or finding, e.g., opposed F. Supp. 2d 1355 (Ct. Int’l Trade 2006), certification received after August 2, the petition or otherwise presented and PS Chez Sidney, L.L.C. v. United 2010 will be denied, making claimants evidence in opposition to the petition. States, 502 F. Supp. 2d 1318, 1325 (Ct. ineligible for the distribution. The distribution that these parties may Int’l Trade 2007), the U.S. Court of ADDRESSES: Certifications and any other receive is known as the continued International Trade (CIT) held that the correspondence (whether by mail, or an dumping and subsidy offset. CDSOA’s support requirement was express or courier service) should be Section 7601(a) of the Deficit unconstitutional and severed this addressed to the Assistant Reduction Act of 2005 repealed 19 requirement for eligibility and Commissioner, Office of U.S.C. 1675c. According to § 7701 of the remanded the matters to the USITC and Administration, U.S. Customs and Deficit Reduction Act, the repeal takes CBP to review their decisions regarding Border Protection, Revenue Division, effect as if enacted on October 1, 2005. CDSOA distributions. Both cases have Attention: Melissa Kurth, 6650 Telecom However, § 7601(b) provided that all been appealed. The CIT subsequently Drive, Suite 100, Indianapolis, IN duties collected on an entry filed before affirmed the USITC and CBP remand 46278. October 1, 2007, shall be distributed as actions for both cases in SKF USA INC. if 19 U.S.C. 1675c had not been repealed v. United States, 502 F. Supp. 2d 1325 FOR FURTHER INFORMATION CONTACT: For by § 7601(a). (Ct. Int’l Trade 2007), and PS Chez general questions regarding preparation Consequently, the full impact of the Sidney, L.L.C. v. United States, 558 F. of certifications, contact Melissa Kurth, CDSOA repeal on amounts available for Supp. 2d 1370 (Ct. Int’l Trade 2008). Revenue Division, (317) 614–4462. For distribution may be delayed for several SKF was reversed by the Court of questions regarding legal aspects, years. First, money collected on an entry Appeals for the Federal Circuit (CAFC) contact Peter Martin, Office of filed before October 1, 2007, will in SKF USA, Inc. v. United States, 556 International Trade, Regulations and continue to be subject to the distribution F. 3d 1337 (Fed. Circ. 2009). The CAFC Rulings, (202) 325–0048. procedures under former § 1675c. held that the CDSOA’s support SUPPLEMENTARY INFORMATION: Second, the antidumping and requirement did not violate either the VerDate Mar<15>2010 15:41 May 28, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\01JNN2.SGM 01JNN2 erowe on DSK5CLS3C1PROD with NOTICES2 Federal Register / Vol. 75, No. 104 / Tuesday, June 1, 2010 / Notices 30531 First Amendment or the Fifth Regulations Implementing the CDSOA Section 159.62(b) also provides that the Amendment. The Supreme Court of the It is noted that CBP published dollar amounts subject to distribution United States denied plaintiff’s petition Treasury Decision (T.D.) 01–68 that are contained in the Special for certiorari, 2010 U.S. Lexis 3940 (May (Distribution of Continued Dumping Account for each listed order or finding 17, 2010). However, this decision may and Subsidy Offset to Affected Domestic are to appear in this notice. However, these dollar amounts were not available be subject to further judicial review Producers) in the Federal Register (66 in time for inclusion in this publication. through a request for a rehearing. The FR 48546) on September 21, 2001, The preliminary amounts will be posted CIT’s decision in PS Chez Sidney, L.L.C. which was effective as of that date, in on the CBP Web site (http:// has been appealed to the CAFC, and the order to implement the CDSOA. The www.cbp.gov). However, the final appeal has been stayed pending final final rule added a new subpart F to part amounts available for disbursement may disposition of SKF. 159 of title 19, Code of Federal be higher or lower than the preliminary In another relevant court case, Pat Regulations (19 CFR part 159, subpart F amounts. Huval Restaurant & Oyster Bar, Inc. v. (§§ 159.61–159.64)). More specific United States, 547 F. Supp. 2d 1352 (Ct. CBP will provide general information guidance regarding the filing of to claimants regarding the preparation Int’l Trade 2008), the CIT held that a certifications is provided in this notice domestic producer’s failure to file of certification(s). However, it remains in order to aid affected domestic the sole responsibility of the domestic timely certification in certain fiscal producers and other domestic producer years was not necessarily a bar to seek producer to ensure that the certification alleging eligibility (‘‘claimants’’ or is correct, complete, and accurate so as judicial review for disbursement made ‘‘domestic producers’’). within two years of filing suit because to demonstrate the eligibility of the ‘‘Customs could have done nothing but Notice of Intent to Distribute Offset domestic producer for the distribution reject them.’’ That litigation is ongoing.