19 C.F.R. § 159.61

General

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(a) Continued dumping and subsidy offset. Under section 754 of the Tariff Act of 1930, as amended by Public Law 106-387, 114 Stat. 1549 (19 U.S.C. 1675c), known as the Continued Dumping and Subsidy Offset Act of 2000, assessed duties received on or after October 1, 2000 under a countervailing duty order, an antidumping duty order, or a finding under the Antidumping Act of 1921, will be distributed, as provided under this subpart, to affected domestic producers for certain qualifying expenditures that these affected domestic producers incur after the issuance of such an antidumping duty order or finding, or countervailing duty order. This distribution is called the continued dumping and subsidy offset.

(b) Affected domestic producer—(1) General rule. Except as provided in paragraph (b)(2) of this section, an “affected domestic producer” under paragraph (a) of this section means any manufacturer, producer, farmer, rancher or worker representative (including any association of such persons) that remains in operation continuing to produce the product covered by the antidumping duty order or finding or countervailing duty order, and that was a petitioner or an interested party that supported a petition concerning an antidumping duty order, a finding under the Antidumping Act of 1921, or a countervailing duty order that was entered. It is the responsibility of the U.S. International Trade Commission (USITC) to ascertain and timely forward to Customs a list of the domestic producers potentially considered “affected domestic producers” eligible to receive a distribution in connection with each order or finding. In addition to the potential “affected domestic producers” set forth on the USITC list, the following parties also are potential “affected domestic producers”:

(i) Successor company. In the case of a company that has succeeded to the operations of a predecessor company that appeared on the USITC list, the successor company may file a certification to claim an offset as an affected domestic producer on behalf of the predecessor company. In its certification, the company must name the predecessor company to which it has succeeded and it must describe in detail the duly authorized succession by which it is entitled to file the certification.

(ii) A member company of an association. A member company of an association appearing on the USITC list for an order or finding may file a certification to claim an offset as an affected domestic producer, even though the member company does not itself appear on the USITC list, provided that the company also meets the other requirements of the statute. In its certification, the company must name the association of which it is a member and the company must specifically establish that it was a member of the association at the time the association filed the petition with the USITC.

(2) Exceptions. A party who is named on the USITC list is not an “affected domestic producer” under the following circumstances:

(i) Product no longer produced. A company, business or person that has ceased production of the product covered by the antidumping duty order or finding, or countervailing duty order, i.e., did not manufacture that product at all during the fiscal year that is the subject of the disbursement, is not an affected domestic producer under this section.

(ii) Acquisition by related company—(A) Related company defined. A company, business or person is not an affected domestic producer if that company, business, or person has 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. For purposes of this paragraph, a company, business or person is related to another company, business or person if:

(1) The company, business or person directly or indirectly controls or is controlled by the other company, business or person;

(2) A third party directly or indirectly controls both companies, businesses or persons; or

(3) Both companies, businesses or persons directly or indirectly control a third party and there is reason to believe that the relationship causes the first company, business or person to act differently than a nonrelated party.

(B) Control of one party by another. For purposes of paragraphs (b)(2)(ii)(A)(1) through (b)(2)(ii)(A)(3) of this section, one party would be considered to directly or indirectly control another party if the party was legally or operationally in a position to exercise restraint or direction over the other party.

(c) Qualifying expenditures. Qualifying expenditures which may be offset by a distribution of assessed antidumping and countervailing duties must fall within the categories described in paragraphs (c)(1) through (c)(10) of this section. These expenditures must be incurred after the issuance, and prior to the termination, of the antidumping duty order or finding or countervailing duty order under which the distribution is sought. Further, these expenditures must be related to the production of the same product that is the subject of the related order or finding, with the exception of expenses incurred by associations which must relate to a specific case.

(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.

Notes of Decisions

Cited in 15 cases, 2002–2018 · leading case: S. Shrimp All. v. United States, 617 F. Supp. 2d 1334 (Ct. Intl. Trade 2009).

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S. Shrimp All. v. United States, 617 F. Supp. 2d 1334 (Ct. Intl. Trade 2009). · cites it 18× “§ 1675c(d)(l); 19 C.F.R. § 159.61 (b). Using the ITC’s list of ADPs, Customs publishes a notice of intent to distribute CDSOA funds along with the list of ADPs potentially eligible for a distribution.”

SKF USA, Inc. v. United States Customs & Border Prot., 556 F.3d 1337 (Fed. Cir. 2009). · cites it 2× “See 19 C.F.R. § 159.61 (b)(1)(i); Cathedral Candle v.”

Jodelle Kirk v. Schaeffler Grp. USA, 887 F.3d 376 (8th Cir. 2018). · cites it 2× “19 C.F.R. § 159.61 (b)(1)(i) (emphasis added).”

Candle Corp. of Am. v. United States Int'l Trade Comm'n, 259 F. Supp. 2d 1349 (Ct. Intl. Trade 2003). · cites it 6× “§ 1675c(d)(l); see also 19 C.F.R. § 159.61 (b). 3 Subsequently, Customs must publish a notice of intention to distribute the continued dumping and subsidy offset and the ITC list of the affected domestic producers potentially eligible to receive an offset distribution.”

Canadian Lumber Trade All. v. United States, 425 F. Supp. 2d 1321 (Ct. Intl. Trade 2006). · cites it 2× “§ 1675c(a); 19 C.F.R. § 159.61 (a) (“Byrd Distributions”), are intended to strengthen trade law remedies, through an allocation based on “qualifying expenditures,” i.”

Altx, Inc. v. United States, 2002 CIT 66 (Ct. Intl. Trade 2002). · cites it 3× “1675c (2001); 19 C.F.R. § 159.61 . Under the CDO, assessed duties received by Customs during the fiscal year will be disbursed to affected domestic producers that have incurred qualifying expenditures subsequent to the issuance of an anti-dumping or countervailing duty order.”

Hartford Fire Ins. v. United States, 507 F. Supp. 2d 1331 (Ct. Intl. Trade 2007). · cites it 2× “§ 1675c(a), 19 C.F.R. § 159.61 (a) (“Byrd Distributions”), are allocated based on “qualifying expenditures,” i.”

PS Chez Sidney, L.L.C. v. United States Int'l Trade Comm'n, 684 F.3d 1374 (Fed. Cir. 2012). “§ 1675c(b)(l)(A); see also 19 C.F.R. § 159.61 (b)(1) (2012). Domestic producers can show support either “by letter or through questionnaire response.”

Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369 (Fed. Cir. 2003). “See 19 C.F.R. § 159.61 (a) (2002). Pointing to the change effected by the Byrd Amendment, Huaiyin-30 contends that the requirements for procedural due process now attach to the agency’s decisions and necessitate a hearing by a neutral judge before dumping duties may be imposed.”

Sioux Honey Ass'n v. United States, 722 F. Supp. 2d 1342 (Ct. Intl. Trade 2010). “§ 1675e(e) (repealed 2006); 19 C.F.R. § 159.61 (2009). In the 2006 repeal of the CDSOA, Congress provided for the continued distribution of duties “on entries of goods made and filed before October 1, 2007.”

Candle Corp. of Am. v. United States Int'l Trade Comm'n, 374 F.3d 1087 (Fed. Cir. 2004). · cites it 3× “19 C.F.R. § 159.61 (b)(1)® (2003). 3 Pursuant to the Byrd Amendment, Customs had available $18,317,982.”

Five Rivers Elec. Innovation, LLC v. United States, 755 F. Supp. 2d 1349 (Ct. Intl. Trade 2011). · cites it 2× “” 19 C.F.R. § 159.61 (b)(2)(f) (emphasis added).”

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Altx, Inc. v. United States, 2002 CIT 66 (Ct. Intl. Trade 2002). “1675c (2001); 19 C.F.R. § 159.61 . Under the CDO, assessed duties received by Customs during the fiscal year will be disbursed to affected domestic producers that have incurred qualifying expenditures subsequent to the issuance of an anti-dumping or countervailing duty order.”

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