[Title 19 CFR 159]
[Code of Federal Regulations (annual edition) - April 1, 2002 Edition]
[Title 19 - CUSTOMS DUTIES]
[Chapter I - UNITED STATES CUSTOMS SERVICE, DEPARTMENT OF THE TREASURY]
[Part 159 - LIQUIDATION OF DUTIES]
[From the U.S. Government Printing Office]
19CUSTOMS DUTIES22002-04-012002-04-01falseLIQUIDATION OF DUTIES159PART 159CUSTOMS DUTIESUNITED STATES CUSTOMS SERVICE, DEPARTMENT OF THE TREASURY
PART 159--LIQUIDATION OF DUTIES--Table of Contents
Sec.
159.0 Scope.
Subpart A--General Provisions
159.1 Definition of liquidation.
159.2 Liquidation required.
159.3 Rounding of fractions.
159.4 Alcoholic beverages.
159.5 Cigars, cigarettes, and cigarette papers and tubes.
159.6 Difference between liquidated duties and estimated duties.
159.7 Rewarehouse entries.
159.8 Allowance for loss, injury, etc.
159.9 Notice of liquidation and date of liquidation for formal entries.
159.10 Notice of liquidation and date of liquidation for informal, mail
and baggage entries.
159.11 Entries liquidated by operation of law.
159.12 Extension of time for liquidation.
Subpart B--Weight, Gage, and Measure
159.21 Quantity upon which duties based.
159.22 Net weights and tares.
Subpart C--Conversion of Foreign Currency
159.31 Rates to be used.
159.32 Date of exportation.
159.33 Proclaimed rate.
159.34 Certified quarterly rate.
159.35 Certified daily rate.
159.36 Multiple certified rates.
159.37 Suspension of certification of rates.
159.38 Rates for estimated duties.
Subpart D--Special Duties
159.41 Antidumping duties.
159.42 Discriminating duties.
159.43 Duties contingent upon foreign export duties, charges, or
restrictions.
159.44 Special duties on merchandise imported under agreements in
restraint of trade.
159.45 Additional duty for unauthentic claims of antiquity.
159.46 Marking duties.
159.47 Countervailing duties.
Subpart E--Suspension of Liquidation
159.51 General.
159.52 Warehouse entry not liquidated until final withdrawal.
159.53 Proof of duty-free or reduced-duty status.
159.54 Open bonds for production of documents.
159.55 Possible prohibited food, drugs, or other articles.
159.57 Merchandise affected by an American manufacturer's cause of
action sustained by the court.
159.58 Dumping and countervaling; action by port director.
Subpart F--Continued Dumping and Subsidy Offset
159.61 General.
159.62 Notice of distribution.
159.63 Certifications.
159.64 Distribution of offset.
Authority: 19 U.S.C. 66, 1500, 1504, 1624.
Subpart C also issued under 31 U.S.C. 5151.
Subpart F also issued under 19 U.S.C. 1675c.
Sections 159.4, 159.5, and 159.21 also issued under 19 U.S.C. 1315;
Section 159.6 also issued under 19 U.S.C. 1321, 1505;
Section 159.7 also issued under 19 U.S.C. 1557;
Section 159.22 also issued under 19 U.S.C. 1507;
Section 159.44 also issued under 15 U.S.C. 73, 74;
Section 159.46 also issued under 19 U.S.C. 1304;
Section 159.55 also issued under 19 U.S.C. 1558;
Section 159.57 also issued under 19 U.S.C. 1516.
Source: T.D. 73-175, 38 FR 17482, July 2, 1973, unless otherwise
noted.
Sec. 159.0 Scope.
This part sets forth general rules for the liquidation of entries.
Certain specific procedures affecting liquidation appear in other parts
of this chapter; e.g., part 158 of this chapter covers allowance for
lost or damaged merchandise.
[[Page 224]]
Subpart A--General Provisions
Sec. 159.1 Definition of liquidation.
Liquidation means the final computation or ascertainment of the
duties (not including vessel repair duties) or drawback accruing on an
entry.
[T.D. 01-24, 66 FR 16400, Mar. 26, 2001]
Sec. 159.2 Liquidation required.
All entries covering imported merchandise, except temporary
importation bond entries and those for transportation in bond or for
immediate exportation, shall be liquidated. Vessel repair entries are
not subject to liquidation under this part (see Sec. 4.14(i)(3) of this
chapter).
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 01-24, 66 FR
16400, Mar. 26, 2001]
Sec. 159.3 Rounding of fractions.
(a) Value. In the computation of duty on entries, ad valorem rates
shall be applied to the values in even dollars, fractional parts of a
dollar less than 50 cents being disregarded and 50 cents or more being
considered as $1, with all merchandise in the same invoice subject to
the same rate of duty to be treated as a unit. However, the total
dutiable value of the invoice shall not be increased or decreased by
more than the rounding of the total dutiable value to an even dollar.
When necessary, fractional parts of a dollar, whether more or less than
50 cents, shall be dropped or taken up as whole dollars in order to
avoid such an increase or decrease. If in such cases it is necessary to
drop fractional parts of a dollar amounting to 50 cents or more, the
lower fractions shall be dropped, and if it is necessary to take up as
whole dollars fractional parts less than 50 cents, the larger fractions
shall be taken. In the case of two equal fractions, the one subject to
the lower rate of duty shall be dropped or taken up, as the case may be.
In determining a rate of duty dependent upon value, fractional parts of
a dollar shall be considered.
(b) Quantities subject to specific duty. Except in the case of
alcoholic beverages treated under Sec. 159.4, if a rate of duty is
specific and $1 or less per unit, fractional quantities, if less than
one-half, shall be disregarded, and if one-half or more shall be treated
as a whole unit. Subject to the same exception, if a specific rate is
more than $1 per unit, duty shall be assessed upon the exact quantity
with any fractional part expressed in the form of a decimal extended to
two places.
Sec. 159.4 Alcoholic beverages.
(a) Quantities subject to duties. Customs duties and internal
revenue taxes on alcoholic beverages provided for in headings 2207 and
2208, Harmonized Tariff Schedule of the United States (HTSUS), (19
U.S.C. 1202), and subject to internal revenue taxes shall be collected
only on the number of proof gallons and fractional parts thereof,
entered or withdrawn for consumption. No internal revenue tax shall be
collected on distilled spirits in bulk which have been transferred to
Internal Revenue bonded premises in accordance with Sec. 141.102(b) of
this chapter. Customs duties and internal revenue taxes on alcoholic
beverages other than subheadings 2206.00.30 and 2206.00.90, HTSUS, and
distilled spirits provided for in headings 2207 and 2208, shall be
collected only on the number of wine gallons and fractional parts
thereof, entered or withdrawn for consumption.
(b) Computation of duties. In the computation of Customs duties on
alcoholic beverages provided for in headings 2207 and 2208 (19 U.S.C.
1202), which are also subject to internal revenue taxes, the methods
prescribed for the computation of internal revenue taxes on such
beverages shall be followed. The following methods apply to the specific
beverages shown:
(1) Distilled spirits. The quantity of distilled spirits imported in
barrels, kegs, or similar containers shall be ascertained in accordance
with the regulations of the Bureau of Alcohol, Tobacco and Firearms.
Where distilled spirits are imported in bottles, jugs, or similar
containers, Customs duties and taxes shall be collected on the exact
quantity contained in each case or other outer container, fractional
parts of a gallon being carried out to three decimal places utilizing
the proof gallon method of computation.
[[Page 225]]
(2) Wine. Customs duties and taxes on wines shall be on the basis of
a wine gallon of liquid measure equivalent to 231 cubic inches and shall
be paid proportionally on all fractional parts of a wine gallon.
Fractions of less than one-tenth gallon shall be converted to the
nearest one-tenth gallon, and five-hundredths gallon shall be converted
to the next full one-tenth gallon.
(3) Beer and similar fermented beverages. Customs duties and taxes
on beer, ale, porter, stout, and other similar fermented beverages,
including sake, of any name or description containing one-half of 1
percent or more of alcohol by volume, brewed or produced from malt,
wholly or in part, or from any substitute therefor, shall be collected
in accordance with section 5051(a), Internal Revenue Code of 1954 (26
U.S.C. 5051(a)).
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 78-329, 43
FR 43455, Sept. 26, 1978; T.D. 80-271, 45 FR 75641, Nov. 17, 1980; T.D.
89-1, 53 FR 51270, Dec. 21, 1988]
Sec. 159.5 Cigars, cigarettes, and cigarette papers and tubes.
The internal revenue taxes imposed on cigars, cigarettes, and
cigarette papers and tubes under section 5701 or 7652, Internal Revenue
Code of 1954 (26 U.S.C. 5701 or 7652), are determined in accordance with
section 5703 of that Code (26 U.S.C. 5703) at the time of removal; that
is, on the quantity removed from Customs custody under the entry or
withdrawal for consumption. The Customs duties, unlike those on
alcoholic beverages, do not necessarily apply only to such quantities.
Sec. 159.6 Difference between liquidated duties and estimated duties.
(a) Difference under $20 in original liquidation. When there is a
net difference of less than $20 between the total amount of duties,
fees, taxes, and interest assessed in the liquidation of any entry
(other than an informal, mail, or baggage entry) and the total amount of
estimated duties, fees, and taxes deposited, including any supplemental
deposit, the difference shall be disregarded and the entry endorsed ``as
entered.'' In the case of an informal, mail, or baggage entry, the
amount of duties, fees, and taxes computed by a Customs officer when the
entry is prepared by, or filed with, him shall be considered the
liquidated assessment.
(b) Difference under $20 in reliquidation. When there is a net
difference of less than $20 between the total amount of duties, fees,
taxes, and interest found due in the reliquidation of any entry and the
total amount of duties, fees, taxes, and interest assessed in the prior
liquidation of the entry, the difference shall be disregarded except in
the following cases:
(1) Reliquidation at importer's request. When reliquidation of any
entry is made at the importer's request, such as reliquidation following
the allowance of a protest under section 514, Tariff Act of 1930, as
amended (19 U.S.C. 1514), or a request for correction under section
520(c), Tariff Act of 1930, as amended (19 U.S.C. 1520(c)), any refund
determined to be due shall be refunded even if less than $20.
(2) Court decision. Any refund or increase determined to be due as
the result of the reliquidation of an entry in accordance with a court
decision and judgment order shall be refunded or collected as the case
may be.
(c) Difference of $20 or more collected or refunded. If there is a
difference of $20 or more between the duties, fees, taxes, and interest
assessed in the liquidation of an entry and the total estimated duties,
fees, and taxes deposited, or between the total duties, fees, taxes, and
interest assessed in the reliquidation of an entry and those assessed in
the prior liquidation, the entry shall be endorsed to show the
difference and bills or refund checks shall be issued.
(d) Customs duties and fees and internal revenue taxes and interest
netted for $20 limit. The assessments of Customs duties and fees and
internal revenue taxes and interest shall be separately stated on the
entry at the time of liquidation, but the amounts of any differences
shall be netted when applying the $20 minimum for issuance of a bill or
refund check.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 78-394, 43
FR 49791, Oct. 25, 1978; T.D. 94-51, 59 FR 30296, June 13, 1994; 64 FR
56440, Oct. 20, 1999]
[[Page 226]]
Sec. 159.7 Rewarehouse entries.
The liquidation of the original warehouse entry shall be followed in
determining the liability for duties on a rewarehouse entry, except in
the following cases:
(a) Merchandise excluded from liquidation of original warehouse
entry. When any of the following types of merchandise are withdrawn from
warehouse for transportation to another port, they shall be excluded
from the liquidation of the original warehouse entry, and the liability
for duties shall be determined by a liquidation of the rewarehouse entry
made at the port where the merchandise is withdrawn for consumption or
for exportation:
(1) Alcoholic beverages provided for in headings 2203 through 2208,
Harmonized Tariff Schedule of the United States (HTSUS) (19 U.S.C.
1202), and subject to internal revenue taxes;
(2) Cigars, cigarettes, and cigarette papers and tubes subject to
internal revenue taxes;
(3) Tariff-rate quota merchandise; and
(4) Wool or hair subject to duty at a rate per clean kilogram under
Chapter 51, HTSUS.
(b) Reliquidation required by change in rate. When a rate of Customs
duty or tax is changed by an act of Congress or a proclamation of the
President, any necessary reliquidation of Customs duty or tax on
merchandise covered by a rewarehouse entry which may be required by
reason of the change in rate shall be made at the port where the
merchandise is held in Customs custody on the effective date of the
change.
(c) Shortage, irregular delivery, nondelivery, and other cases. In
cases involving shortage, irregular delivery, or nondelivery under the
original warehouse withdrawal for transportation, or in other cases when
the port director of the port where the merchandise is entered for
rewarehouse is of the opinion that circumstances make it inadvisable to
follow the liquidation of the original warehouse entry, he shall make an
appropriate adjustment in the amount of duties to be assessed under the
rewarehouse entry.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 89-1, 53 FR
51270, Dec. 21, 1988; T.D. 90-78, 55 FR 40168, Oct. 2, 1990]
Sec. 159.8 Allowance for loss, injury, etc.
Allowance in duties for any merchandise which is lost, stolen,
destroyed, injured, abandoned, or short-shipped shall be made in
accordance with the provisions of part 158 of this chapter.
Sec. 159.9 Notice of liquidation and date of liquidation for formal entries.
(a) Bulletin notice of liquidation. Notice of liquidation of formal
entries shall be made on a bulletin notice of liquidation, Customs Form
4333.
(b) Posting of bulletin notice. The bulletin notice of liquidation
shall be posted for the information of importers in a conspicuous place
in the customhouse at the port of entry (or Customs station, when the
entries listed were filed at a Customs station outside the limits of a
port of entry), or shall be lodged at some other suitable place in the
customhouse in such a manner that it can readily be located and
consulted by all interested persons, who shall be directed to that place
by a notice maintained in a conspicuous place in the customhouse stating
where notices of liquidation of entries are to be found.
(c) Date of liquidation--(1) Generally. The bulletin notice of
liquidation shall be dated with the date it is posted or lodged in the
customhouse for the information of importers. This posting or lodging
shall be deemed the legal evidence of liquidation. For electronic entry
summaries, the date of liquidation will be the date of posting of the
bulletin notice of liquidation. Customs will endeavor to provide the
filer with electronic notification of this date as an informal, courtesy
notice of liquidation.
(2) Exception: Entries liquidated by operation of law. (i) Entries
liquidated by operation of law at the expiration of the time limitations
prescribed in section 504. Tariff Act of 1930, as amended (19 U.S.C.
1504), and set out in Secs. 159.11 and 159.12, shall be deemed
liquidated as of the date of expiration of the appropriate statutory
period.
[[Page 227]]
(ii) The bulletin notice of liquidation shall be posted or lodged in
the customhouse within a reasonable period after each liquidation by
operation of law and shall be dated as of the date of expiration of the
statutory period.
(iii) A protest under section 514, Tariff Act of 1930, as amended
(19 U.S.C. 1514), and part 174 of this chapter shall be filed within 90
days from the date the bulletin notice of liquidation of an entry by
operation of law is posted or lodged in the customhouse.
(d) Courtesy notice of liquidation. Customs will endeavor to provide
importers or their agents with Customs Form 4333-A, ``Courtesy Notice,''
for all entries scheduled to be liquidated or deemed liquidated by
operation of law. This notice shall serve as an informal, courtesy
notice and not as a direct, formal and decisive notice of liquidation.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 79-221, 44
FR 46829, Aug. 9, 1979; T.D. 90-1, 54 FR 52933, Dec. 26, 1989; T.D. 90-
92, 55 FR 49888, Dec. 3, 1990]
Sec. 159.10 Notice of liquidation and date of liquidation for informal, mail, and baggage entries.
(a) Usual date of liquidation. Except in the cases provided for in
paragraph (b) of this section, the effective date of liquidation for
informal, mail, and baggage entries shall be:
(1) The date of payment by the importer of duties due on the entry;
(2) The date of release by Customs or the postmaster when the
merchandise is released under such an entry free of duty; and
(3) The date a free entry is accepted for articles released under a
special permit for immediate delivery under part 142 of this chapter.
(b) Date of liquidation when duty cannot be determined at time of
entry. When the proper rate or amount of duty cannot be determined at
the time of entry because the merchandise is subject to a tariff-rate
quota, because of a missing document which, if for free entry, is not
produced prior to the release of the merchandise to the importer, or
because of any other reason, the printed notice of liquidation appearing
on the receipt issued for any money collected on the entry shall be
voided. When the tariff status of the merchandise either as dutiable or
free is finally ascertained it shall be noted on the entry. The
effective date of liquidation shall be the date of posting or lodging of
the notice of liquidation required by paragraph (c)(3) of this section.
(c) Notice of liquidation--(1) Dutiable entries. Where duties are
paid on an entry in accordance with paragraph (a)(1) of this section,
notice of liquidation is furnished by a suitable printed statement
appearing on the receipt issued for duties collected. No other notice of
liquidation shall be given, but notice of reliquidation of any such
entry shall be given on Customs Form 4333 posted or lodged in the place
and manner specified in Sec. 159.9(b).
(2) Free entries. Notice of liquidation is furnished by release of
the merchandise under a free entry in accordance with paragraph (a)(2)
of this section, or by acceptance of the free entry in accordance with
paragraph (a)(3) of this section after release under a special permit
for immediate delivery. No further notice of the liquidation of such
entries shall be given.
(3) Entries where duty cannot be determined at time of entry. When
the proper rate or amount of duty cannot be determined at the time of
entry as set forth in paragraph (b) of this section, notice of
liquidation shall be given on a bulletin notice of liquidation, Customs
Form 4333, in the manner specified in Sec. 159.9 for formal entries.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 90-1, 54 FR
52933, Dec. 26, 1989]
Sec. 159.11 Entries liquidated by operation of law.
(a) Time limit generally. Except as provided in Sec. 159.12, an
entry not liquidated within 1 year from the date of entry of the
merchandise, or the date of final withdrawal of all merchandise covered
by a warehouse entry, shall be deemed liquidated by operation of law at
the rate of duty, value, quantity, and amount of duties asserted by the
importer at the time of filing an entry summary for consumption in
proper form, with estimated duties attached, or a withdrawal for
consumption in proper form, with estimated duties attached. Notice of
liquidation shall be
[[Page 228]]
given on the bulletin notice of liquidation, Customs Form 4333, as
provided in Secs. 159.9 and 159.10(c)(3). Customs will endeavor to
provide a courtesy notice of liquidation on Customs Form 4333-A in
accordance with Sec. 159.9(d).
(b) Applicability. The provisions of this section and Sec. 159.12
shall apply to entries of merchandise for consumption or withdrawals of
merchandise for consumption made on or after April 1, 1979, but shall
not apply to drawback entries.
[T.D. 79-221, 44 FR 46829, Aug. 9, 1979, as amended by T.D. 90-1, 54 FR
52933, Dec. 26, 1989; T.D. 01-24, 66 FR 16400, Mar. 26, 2001]
Sec. 159.12 Extension of time for liquidation.
(a) Reasons--(1) Extension. The port director may extend the 1-year
statutory period for liquidation for an additional period not to exceed
1 year if:
(i) Information needed by Customs. Information needed by Customs for
the proper appraisement or classification of the merchandise is not
available, or
(ii) Importer's request. The importer requests an extension in
writing before the statutory period expires and shows good cause why the
extension should be granted. ``Good cause'' is demonstrated when the
importer satisfies the port director that more time is needed to present
to Customs information which will affect the pending action, or there is
a similar question under review by Customs.
(2) Suspension. The 1-year liquidation period may be suspended as
required by statute or court order.
(b) Notice of extension. If the port director extends the time for
liquidation, as provided in paragraph (a)(1) of this section, he
promptly shall notify the importer or the consignee and his agent and
surety on Customs Form 4333-A, appropriately modified, that the time has
been extended and the reasons for doing so.
(c) Notice of suspension. If the liquidation of an entry is
suspended as required by statute or court order, as provided in
paragraph (a)(2) of this section, the port director promptly shall
notify the importer or the consignee and his agent and surety on Customs
Form 4333-A, appropriately modified, of the suspension.
(d) Additional extensions--(1) Information needed by Customs. If an
extension has been granted because Customs needs more information and
the port director thereafter determines that more time is needed, he may
extend the time for liquidation for an additional period not to exceed 1
year provided he issues the notice required by paragraph (b) of this
section before termination of the prior extension period.
(2) At importer's request. If the statutory period has been extended
for 1 year at the importer's request, and the importer thereafter
determines that additional time is necessary, he may request another
extension in writing before the original extension expires, giving
reasons for his request. If the port director finds that good cause (as
defined in paragraph (a)(1)(ii) of this section) exists, he shall issue
a notice extending the time for liquidation for an additional period not
to exceed 1 year.
(e) Limitation on extensions. The total time for which extensions
may be granted by the port director may not exceed 3 years.
(f) Time limitation--(1) Generally. An entry not liquidated within 4
years from either the date of entry, or the date of final withdrawal of
all the merchandise covered by a warehouse entry, shall be deemed
liquidated by operation of law at the rate of duty, value, quantity, and
amount of duty asserted by the importer at the time of filing the entry
summary for consumption in proper form, with estimated duties attached,
or the withdrawal for consumption in proper form, with estimated duties
attached, unless liquidation continues to be suspended by statute or
court order. Customs will endeavor to provide a courtesy notice of
liquidation on Customs Form 4333-A, in accordance with Sec. 159.9(d), in
addition to the bulletin notice specified in Sec. 159.9(c)(2)(ii).
(2) Suspension of liquidation by statute or court order. When
liquidation of an entry continues to be suspended beyond the 4-year
period specified in paragraph (f)(1) of this section due to a statute or
court order, the entry shall be liquidated within 90 days after removal
of the suspension.
(g) Notice of liquidation. If an entry is liquidated after an
extension expires or
[[Page 229]]
a suspension is removed, notice of liquidation shall be given on the
bulletin notice of liquidation, Customs Form 4333, as provided in
Secs. 159.9 and 159.10(c)(3). Customs will endeavor to provide a
courtesy notice of liquidation on Customs Form 4333-A in accordance with
Sec. 159.9(d).
[T.D. 79-221, 44 FR 46829, Aug. 9, 1979, as amended by T.D. 90-1, 54 FR
52933, Dec. 26, 1989]
Subpart B--Weight, Gage, and Measure
Sec. 159.21 Quantity upon which duties based.
Insofar as duties are based upon the quantity of any merchandise,
such duties shall be based upon the quantity of such merchandise at the
time of its importation, except in the following cases:
(a) Manipulation in warehouse. If any merchandise covered by a
warehouse entry has been cleaned, sorted, repacked, or otherwise changed
in condition under section 562, Tariff Act of 1930, as amended (19
U.S.C. 1562), withdrawals shall be passed and the entry liquidated on
the basis of the weight, gauge, or measure of such merchandise in its
manipulated condition with an appropriate notation in the duty statement
that the duties are assessed on the basis of the manipulated condition
of the merchandise.
(b) Alcoholic beverages. Duties on certain alcoholic beverages are
assessed only on the quantities entered or withdrawn for consumption
(see Sec. 159.4).
(c) Cigars, cigarettes, and cigarette papers and tubes. Although
Customs duties on cigars, cigarettes, and cigarette papers and tubes are
assessed on the quantities imported, the internal revenue taxes on such
merchandise are assessed only on the quantities entered or withdrawn for
consumption (see Sec. 159.5).
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 80-142, 45
FR 36386, May 30, 1980]
Sec. 159.22 Net weights and tares.
(a) Determination of net weight. The net weight of merchandise
dutiable by net weight, or upon a value dependent upon net weight, shall
be determined insofar as possible by obtaining the actual weight, or by
deducting the actual or schedule tare from the gross weight. Actual tare
may be determined on the basis of tests when the tares of the packages
in a shipment are reasonably uniform.
(b) Invoice net weight or tare. When the actual net weight or tare
cannot reasonably be determined and no schedule tare is applicable,
liquidation may be made on the basis of the invoice net weight or tare.
(c) Schedule tare. The following tares, which, from experience, have
proved to be the average for certain classes of merchandise shall be
known as schedule tares and shall be applied, except as provided in
paragraph (d) of this section:
Apple boxes. 2.984 kilograms per box. This schedule tare includes
the paper wrappers, if any, on the apples.
China clay in so-called half-ton casks: 26.856 kilograms per cask.
Figs in skeleton cases: Actual tare for outer containers plus 13
percent of the gross weight of the inside wooden boxes and figs.
Fresh tomatoes: 113 grams per 100 paper wrappings.
Lemons and oranges: 283 grams per box and 142 grams per half box for
paper wrappings, and actual tare for outer containers.
Ocher, dry, in casks: Eight percent of the gross weight.
Ocher, in oil, in casks: Twelve percent of the gross weight.
Pimientos in tins imported from Spain: The following schedule
drained weight shall be used as the Customs dutiable weight in the
liquidation of entries, the difference between the weight of the new
contents of pimientos in tins and such drained weight being the
allowance made in liquidation for tare for water:
------------------------------------------------------------------------
Size can Drained weight
------------------------------------------------------------------------
3 kilo................................. 13.6 kilograms-case of 6 tins.
794 grams.............................. 16.7 kilograms-case of 24 tins.
425 grams.............................. 8.0 kilograms-case of 24 tins.
198 grams.............................. 3.9 kilograms-case of 24 tins.
113 grams.............................. 2.4 kilograms-case of 24 tins.
------------------------------------------------------------------------
Tobacco, leaf not stemmed: 5.9 kilograms per bale: Sumatra: actual
tare for outside coverings, plus 1.9 kilograms for the inside matting
and, if a certificate is attached to the invoice certifying that the
bales contain paper
[[Page 230]]
wrapping and specifying whether light or heavy paper has been used,
either 113 grams or 227 grams for the paper wrapping according to the
thickness of paper used.
(d) Actual tare. In the following circumstances, the actual tare
shall be ascertained and in so doing the weigher shall empty and weigh
as many casks, boxes, and other coverings as he may deem necessary:
(1) If the importer is not satisfied with the invoice tare or with
the schedule tare;
(2) If the port director is of the opinion that the invoice or
schedule tare does not correctly represent the tare of the merchandise;
or
(3) If the weigher has reason to believe that the invoice or
schedule tare is greater than the real tare.
(e) Estimated tare. When it is impracticable to ascertain the actual
tare, the weigher shall state in his report what, in his judgment,
constitutes a fair tare allowance.
(f) Weight for value purposes. In determining the total dutiable
value of merchandise which is subject to ad valorem duty and appraised
on the basis of weight, liquidation shall be made on the same basis as
appraisement. For example, if appraisement is made on the basis of gross
weight, the unit value shall be multiplied by the total gross weight in
computing the total value even though net weight may be used for other
purposes in liquidation, such as in determining total specific duties.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 89-1, 53 FR
51270, Dec. 21, 1988]
Subpart C--Conversion of Foreign Currency
Sec. 159.31 Rates to be used.
Except as otherwise specified in this subpart, no rate or rates of
exchange shall be used to convert foreign currency for Customs purposes
other than a proclaimed rate or certified rate or rates.
Sec. 159.32 Date of exportation.
The date of exportation for currency conversion shall be fixed in
accordance with Sec. 152.1(c) of this chapter.
Sec. 159.33 Proclaimed rate.
If a rate of exchange has been proclaimed by the Secretary of the
Treasury in accordance with 31 U.S.C. 5151(b) for the currency involved,
such proclaimed rate shall be used unless it varies by 5 percent or more
from the certified daily rate for the date of exportation as set forth
in Sec. 159.35. In determining the percentage of variation between the
proclaimed rate and the certified rate, the difference between the two
rates shall be divided by the certified rate.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 97-82, 62 FR
51771, Oct. 3, 1997]
Sec. 159.34 Certified quarterly rate.
(a) Countries for which quarterly rate is certified. For the
currency of each of the following foreign countries, there will be
published in the Customs Bulletin, for the quarter beginning January 1,
and for each quarter thereafter, the rate or rates first certified by
the Federal Reserve Bank of New York for such foreign currency for a day
in that quarter:
Australia, Austria, Belgium, Brazil, Canada, Denmark, Finland, France,
Germany, Hong Kong, India, Iran, Ireland, Italy, Japan, Malaysia,
Mexico, Netherlands, New Zealand, Norway, People's Republic of China,
Philippines, Portugal, Republic of South Africa, Singapore, Spain, Sri
Lanka (Ceylon), Sweden, Switzerland, Thailand, United Kingdom,
Venezuela.
(b) When certified quarterly rate is used. The certified quarterly
rate established under paragraph (a) of this section shall be used for
Customs purposes for any date of exportation within the quarter, except
in the following cases:
(1) Proclaimed rate. If a rate has been proclaimed by the Secretary
of the Treasury under Sec. 159.33 which does not vary by 5 percent or
more from the appropriate certified daily rate, notice of such variance
shall be published in the Customs Bulletin and the proclaimed
[[Page 231]]
rate shall be used for Customs purposes in connection with merchandise
exported on such date.
(2) Certified daily rate. If the certified daily rate for the date
of exportation varies by 5 percent or more from the certified quarterly
rate, notice of such variation and the rate or rates certified for such
day shall be published in the Customs Bulletin, and such certified daily
rate shall be used for Customs purposes in connection with merchandise
exported on such day.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 81-117, 46
FR 24944, May 4, 1981]
Sec. 159.35 Certified daily rate.
The daily buying rate of foreign currency which is determined by the
Federal Reserve Bank of New York and certified to the Secretary of the
Treasury in accordance with 31 U.S.C. 5151(e) shall be used for the
conversion of foreign currency whenever a proclaimed rate or certified
quarterly rate is not applicable under the provisions of Secs. 159.33
and 159.34. If the date of exportation is one on which banks are
generally closed in New York City, then the certified daily rate for the
last preceding business day shall be considered the certified daily rate
for the day of exportation.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 97-82, 62 FR
51771, Oct. 3, 1997]
Sec. 159.36 Multiple certified rates.
The following procedures shall apply when the Federal Reserve Bank
of New York certifies two or more rates of exchange (e.g., official and
free) for a foreign currency:
(a) Rates to be published. When the Federal Reserve Bank of New York
certifies two or more rates of exchange for the currency of any country,
those rates will be published in the Customs Bulletin.
(b) Laws of country of exportation followed. When multiple rates
have been certified for a foreign currency, the rate to be used for
Customs purposes shall be the type of certified rate which the port
director is satisfied, from information in his own files, information
obtained and presented to him by the importer, or information obtained
from other sources, is uniformly applicable under the laws and
regulations of the country of exportation to the particular class of
merchandise on the date of exportation. In cases where two or more types
of certified rates are uniformly applicable on a percentage bases, each
type of certified rate shall be used for the percentage of value to
which it is applicable. The percentages used shall be those which
reflect realistically the percentage for which each type of rate is
uniformly applicable under the laws and regulations of the country of
exportation on the date of exportation.
(c) Procedure when multiple certified rates not uniformly
applicable. If the port director has credible information that a type of
rate or combination of types of rates which would otherwise be
applicable under paragraph (b) of this section were not required or
permitted, as the case may be, under the laws and regulations of the
country of exportation to be used uniformly during any period in
connection with the payment for all merchandise of the class involved,
he shall immediately submit a detailed report to the Commissioner of
Customs, and shall suspend appraisement and liquidation as to all
merchandise of the class involved exported to the United States during
the period involved, until instructions are received from the
Commissioner of Customs.
(d) Rate for merchandise different from rate for costs. If the port
director has credible information that a type of rate or combination of
types of rates not applicable to payment for the merchandise was
required or permitted in payment of costs, charges, or expenses, the
currency conversions for the exchange covering payment for the
merchandise and for the exchange covering such costs, charges, or
expenses shall be calculated separately. In deducting nondutiable costs,
charges, or expenses, the foreign exchange shall be at the rate or rates
actually used in payment of such costs, charges, or expenses, whether or
not certified in accordance with Sec. 159.34 or Sec. 159.35. If the
costs, charges or expenses are dutiable, they shall be calculated
according to the rules set forth in this subpart. In
[[Page 232]]
the event that any type of rate uniformly applicable to payment of such
dutiable costs, charges, or expenses for merchandise of the class
involved was a type of rate not certified in accordance with Sec. 159.34
or Sec. 159.35, the port director shall immediately submit a detailed
report to the Commissioner of Customs, and shall suspend appraisement
and liquidation as to all merchandise of the class involved exported to
the United States during the period involved, until instructions are
received from the Commissioner.
Sec. 159.37 Suspension of certification of rates.
Whenever the Federal Reserve Bank of New York advises that its
certification of rates for a currency is being suspended pending
determination of the question whether it will certify multiple rates for
that currency, the following procedures shall apply:
(a) Notification of suspension. Customs field officers will be
informed when certification of a currency is being suspended. Currency
information received from the Federal Reserve Bank, or otherwise
available, which might be helpful in calculating estimated duties during
the period of suspension will be furnished to the Customs field
officers.
(b) Suspension of liquidation. In any case where for the purposes of
the assessment and collection of duties it is necessary to determine the
proper rate or rates for a currency during the period when it has been
suspended from certification, appraisement and liquidation shall be
suspended until resumption of certification.
(c) Resumption of certification. When certification is resumed by
the Federal Reserve Bank, the procedures in Sec. 159.36 shall apply.
Sec. 159.38 Rates for estimated duties.
For purposes of calculating estimated duties, the port director
shall use the rate or rates appearing to be applicable under the
instructions in this subpart to the merchandise involved. When it is not
yet known what certified rate or rates are applicable or no rate has
been certified, the port director shall take into account all the
information in his possession and shall use the highest rate or
combination of rates (i.e., the rate or combination of rates showing the
highest amount of United States money), certified or uncertified as the
case may be, which could be applicable.
Subpart D--Special Duties
Sec. 159.41 Antidumping duties.
Antidumping duties shall be assessed in accordance with part 353,
chapter III of this title.
[T.D. 80-271, 45 FR 75641, Nov. 17, 1980]
Sec. 159.42 Discriminating duties.
The discriminating duties provided for in subsection 1 of paragraph
J, section IV, Tariff Act of 1913, as amended by the Act of March 4,
1915 (19 U.S.C. 128, 131), and the discriminating duties and penalties
provided for in section 338, Tariff Act of 1930 (19 U.S.C. 1338), shall
be imposed only in pursuance of specific instructions from the
Commissioner of Customs.
Sec. 159.43 Duties contingent upon foreign export duties, charges, or restrictions.
U.S. Note 1 to Section X, Harmonized Tariff Schedule of the United
States (19 U.S.C. 1202), provides for the imposition under certain
conditions of additional duties on merchandise covered thereby. The
assessment of these additional duties is dependent upon action by the
President, and notice of such action, if taken, will be published in the
Customs Bulletin.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 89-1, 53 FR
51270, Dec. 21, 1988; T.D. 97-82, 62 FR 51771, Oct. 3, 1997]
Sec. 159.44 Special duties on merchandise imported under agreements in restraint of trade.
Whenever it appears that imported articles may be subject to the
special duties provided for in section 802, Act of September 8, 1916 (15
U.S.C. 73), the port director shall report the matter to the
Commissioner of Customs and await instructions with respect to the
imposition of such duties.
[[Page 233]]
Sec. 159.45 Additional duty for unauthentic claims of antiquity.
When additional duty is imposed in accordance with Sec. 10.53 of
this chapter for an unauthentic claim of antiquity, such duty shall be
assessed in addition to any other duty imposed on the merchandise by
law.
Sec. 159.46 Marking duties.
(a) Based on dutiable value. The marking duty prescribed by section
304(f), Tariff Act of 1930, as amended (19 U.S.C. 1304(f)), shall be
assessed upon the dutiable value as defined in section 503, Tariff Act
of 1930, as amended (19 U.S.C. 1503).
(b) Suspension of liquidation. The liquidation of entries shall not
be suspended merely because the merchandise covered thereby is not
legally marked, but, upon special application by the importer, the
liquidation may be deferred for a reasonable time to permit the marking,
destruction, or exportation of the merchandise.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 90-51, 55 FR
28191, July 10, 1990]
Sec. 159.47 Countervailing duties.
Countervailing duties shall be assessed in accordance with part 353,
chapter III, of this title.
[T.D. 80-271, 45 FR 75641, Nov. 17, 1980]
Subpart E--Suspension of Liquidation
Sec. 159.51 General.
Liquidation of entries shall be suspended only when provided by law
or regulation, or when directed by the Commissioner of Customs.
Liquidation of entries shall not be suspended simply because issues
involved therein may be before the Customs Court in pending litigation,
since the importer may seek relief by protesting the entries after
liquidation.
Sec. 159.52 Warehouse entry not liquidated until final withdrawal.
Liquidation of a warehouse or rewarehouse entry shall be suspended
until all merchandise covered by the entry has been accounted for within
the bonded period by withdrawal, abandonment, or destruction, or until
the bonded period has expired if the merchandise has not been so
accounted for before that time.
Sec. 159.53 Proof of duty-free or reduced-duty status.
Various provisions in part 10 of this chapter provide for suspending
liquidation of entries covering certain merchandise entered at a
conditionally free or conditionally reduced rate of duty, pending
production of required proof. Upon production of the required proof, or
upon failure to produce the proof within the required time, the entries
shall be liquidated accordingly.
Sec. 159.54 Open bonds for production of documents.
The liquidation of entries on which bonds are open for the
production of documents affecting the rate of duty shall be suspended
pending the performance or nonperformance under the bond, unless
production of the document is waived in accordance with Sec. 141.92 of
this chapter.
Sec. 159.55 Possible prohibited food, drugs, or other articles.
(a) Suspension of liquidation. The liquidation of each entry
covering merchandise the subject of Sec. 12.1 of this chapter (which
pertains to certain foods, drugs, cosmetics, economic poisons, hazardous
substances, dangerous caustic or corrosive substances, and related
items) shall be suspended until it is determined whether admission of
the merchandise into the United States is permitted under the law.
(b) Allowance for exportation or destruction. In any case where the
admission of such merchandise into the United States is refused and the
merchandise is exported under Customs supervision in accordance with
Sec. 158.45(b) of this chapter, or destroyed under Customs supervision
in accordance with Sec. 158.41 of this chapter, the merchandise is
exempt from duty and any duties collected thereon shall be refunded.
[[Page 234]]
Sec. 159.57 Merchandise affected by an American manufacturer's cause of action sustained by the court.
Liquidation of entries for merchandise of the character covered by a
decision of the Secretary of the Treasury published in accordance with
Sec. 175.24 of this chapter, entered or withdrawn for consumption after
the date of publication of a decision of the U.S. Court of International
Trade sustaining in whole or in part the cause of action of an American
manufacturer, producer, or wholesaler, shall be suspended until final
disposition is made of the cause of action. Upon final disposition, such
entries shall be liquidated, or, if necessary, reliquidated in
accordance with the final judicial decision.
[T.D. 73-175, 38 FR 17482, July 2, 1973, as amended by T.D. 85-90, 50 FR
21430, May 24, 1985]
Sec. 159.58 Dumping and countervailing duties; action by port director.
(a) Antidumping matters. Upon receipt of notification from the
Commissioner, each port director shall suspend liquidation on
merchandise entered, or withdrawn from warehouse, for consumption, on or
after the date of publication of the ``Notice of Preliminary Affirmative
Antidumping Determination,'' ``Notice of Final Affirmative Antidumping
Determination'' or ``Notice of Violation of Agreement'' as provided by
part 353, chapter III, of this title. Each port director shall
immediately notify the importer, consignee, or agent of each entry of
merchandise in question with respect to which liquidation is suspended.
The notice shall indicate the relevant ascertained and determined or
estimated antidumping duty.
(b) Countervailing matters. Upon receipt of notification from the
Commissioner, each port director shall suspend liquidation on
merchandise entered, or withdrawn from warehouse, for consumption, on or
after the date of publication of the ``Notice of Preliminary Affirmative
Countervailing Duty Determination,'' ``Notice of Final Affirmative
Countervailing Duty Determination'' or ``Notice of Violation of
Agreement,'' as provided by part 355, Chapter III, of this title. Each
port director shall immediately notify the importer, consignee, or agent
of each entry of merchandise in question with respect to which
liquidation is suspended. The notice shall indicate the relevant
ascertained and determined or estimated countervailing duty.
[T.D. 80-271, 45 FR 75642, Nov. 17, 1980]
Subpart F--Continued Dumping and Subsidy Offset
Source: 66 FR 48552, Sept. 21, 2001, unless otherwise noted.
Sec. 159.61 General.
(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
[[Page 235]]
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.
[[Page 236]]
Sec. 159.62 Notice of distribution.
(a) Publication of notice. At least 90 days before the end of a
fiscal year, Customs will publish in the Federal Register a notice of
intention to distribute assessed duties received as the continued
dumping and subsidy offset for that fiscal year. The notice will include
the list of domestic producers, based upon the list supplied by the
USITC (see Sec. 159.61(b)(1)), that would be potentially eligible to
receive the distribution.
(b) Content of notice. The notice of intention to distribute the
offset will also contain the following:
(1) The case name and number of the particular order or finding
concerned, together with the dollar amount contained in the special
account for that order or finding as of June 1 of the subject fiscal
year (see Sec. 159.64(a)(1)); and
(2) The instructions for filing the certification under Sec. 159.63
in order to claim a distribution.
Sec. 159.63 Certifications.
(a) Requirement and purpose for certification. In order to obtain a
distribution of the offset, each affected domestic producer must submit
a certification, in triplicate, or electronically as authorized by
Customs, to the Assistant Commissioner, Office of Regulations and
Rulings, Headquarters, or designee, that must be received within 60 days
after the date of publication of the notice in the Federal Register,
indicating that the affected domestic producer desires to receive a
distribution. The certification must enumerate the qualifying
expenditures incurred by the domestic producer since the issuance of an
order or finding for which a distribution has not previously been made,
and it must demonstrate that the domestic producer is eligible to
receive a distribution as an affected domestic producer.
(b) Content of certification. While there is no established format
for a certification, the certification must identify the date of the
Federal Register notice under which it is submitted, and the case name
and the number of the particular order or finding cited in the Federal
Register notice. The certification must be executed and dated by a party
legally authorized to bind the domestic producer. The certification must
also 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.
(1) Identifying information for domestic producer. The certification
must include the following identifying information related to the
domestic producer:
(i) 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);
(ii) The address of the domestic producer (if a post office box, the
secondary street address must also be included);
(iii) The Internal Revenue Service (IRS) number (with suffix) of the
domestic producer, employer identification number, or social security
number, as applicable;
(iv) The specific business organization of the domestic producer
(corporation, partnership, sole proprietorship); and
(v) 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 (email) address(es) for the person(s).
(2) Amount of claim. In calculating the amount of the distribution
being claimed as an offset, the certification must enumerate the
following:
(i) The total amount of qualifying expenditures currently and
previously certified by the domestic producer, and the amount certified
by category(see Sec. 159.61(c)(1) through (c)(10));
(ii) The total amount of those expenditures which have been the
subject of any prior distribution under section 754, Tariff Act of 1930,
as amended (19 U.S.C. 1675c); and
(iii) 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 paragraph (b)(2)(i) of this section
minus the total
[[Page 237]]
amount the subject of any prior distribution as noted in paragraph
(b)(2)(ii) of this section).
(3) Statement of eligibility to receive distribution. 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 (see Sec. 159.61(b)(1) and
(b)(2)).
(i) Amount certified for payment. The affected domestic producer
must affirm that the net amount certified for distribution does not
encompass any qualifying expenditures for which distribution has
previously been made (see paragraphs (b)(2)(ii) and (b)(2)(iii) of this
section).
(ii) Same qualifying expenditures included on more than one
certification. Where the domestic producer 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.
(iii) Continued production of product covered by order or finding;
acquisition by related company. 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 (see Sec. 159.61(b)(2)(i)). In
addition, the domestic producer must state whether it has been acquired
by a company or business that is related to a company, within the
meaning of Sec. 159.61(b)(2)(ii)(A)(1) through (3), that opposed the
antidumping or countervailing duty investigation that resulted in the
order or finding under which the distribution is sought.
(c) Review and correction of certification. A certification that is
submitted in response to a notice of distribution and received within 60
days after the date of publication of the notice in the Federal Register
may be reviewed before acceptance to ensure that all informational
requirements are complied with and that any amounts set forth in the
certification for current and prior qualifying expenditures, including
the amount claimed for distribution, appear to be correct (see paragraph
(b)(2) of this section). A certification that is found to be materially
incorrect or incomplete will be returned to the domestic producer within
15 days after the close of the 60-day filing period. Within 10 days of
the date that Customs returns a certification as being materially
incorrect or incomplete, Customs must receive a corrected certification
from the affected domestic producer. Customs will make every effort to
assist companies to perfect their certifications and will not return
claims for minor errors or omissions. However, it remains 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 as provided in this paragraph will result in the domestic
producer not receiving a distribution.
(d) Verification of certification; supporting records.
Certifications are subject to verification. Parties, therefore, are
required to maintain the accounting records used in developing their
claims, for a period of five years after the filing of the
certification. The records supporting certifications must be those that
are normally kept in the ordinary course of business (see
Sec. 163.1(a)(1) and (a)(2)(vi) of this chapter). Parties must be able
to demonstrate that their records specifically support each qualifying
expenditure enumerated in a certification. In addition, the claimant
must be able to support how qualifying expenditures are determined to be
related to the production of the product covered by the order or
finding.
(e) 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 Customs actually disburses to that company as an
offset, will be available for disclosure to the public (see
Sec. 159.64(g)(1)). The submission of the certification will be
construed as an
[[Page 238]]
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 Customs rejection of the
certification.
Sec. 159.64 Distribution of offset.
(a) The creation of Special Accounts and Clearing Accounts--(1)
Special Accounts. As directed in the legislation (19 U.S.C. 1675c(e)),
Customs will establish Special Accounts for each antidumping duty order
or finding or countervailing duty order, into which funds will be
transferred as set out in paragraph (b) of this section. All
distributions to affected domestic producers will be made from the
Special Accounts.
(2) Clearing Accounts. In order to properly manage and account for
dumping and subsidy offsets, as well as any requisite refunds to
importers, Customs will also establish Clearing Accounts. All estimated
antidumping and countervailing duties received pursuant to an
antidumping or countervailing order or finding in effect on January 1,
1999, or thereafter, will be deposited into a Clearing Account.
(b) Distribution of assessed duties received from the Special
Accounts; refunds resulting from reliquidation or court action; and
overpayments to affected domestic producers.
(1) Distribution of assessed duties received from the Special
Accounts.
(i) No later than 60 days after the end of a fiscal year, Customs
will distribute the assessed duties transferred from the Clearing
Accounts and received into the Special Accounts. The amount distributed
shall be referred to as the dumping and subsidy offset;
(ii) Transfers from the Clearing Accounts to the Special Accounts
will be made by Customs throughout the fiscal year. Transfers will occur
between a Clearing Account and a Special Fund Account when an entry upon
which antidumping or countervailing duties are owed is properly
liquidated pursuant to an order, finding or receipt of liquidation
instructions;
(iii) The amount transferred at liquidation to the Special Account
will be dependent upon the amount actually collected on the entry and in
the Clearing Account. Following liquidation, additional transfers will
be made on the liquidated entry to the corresponding Special Account, as
additional antidumping or countervailing duties are collected.
(2) Refunds resulting from reliquidation or court action. If any of
the underlying entries composing a prior distribution should reliquidate
for a refund, such refund will be recovered from the corresponding
Special Account. Similarly, refunds to importers resulting from any
court action involving those entries will also be recovered from the
corresponding Special Account. Refunds to importers will not be delayed
pending the recovery of overpayments from domestic producers as set out
in paragraph (b)(3) of this section.
(3) Overpayments to affected domestic producers. Overpayments to
affected domestic producers resulting from subsequent reliquidations
and/or court actions and determined by Customs to be not otherwise
recoverable from the corresponding Special Account as set out in
paragraph (b)(2) of this section will be collected from the affected
domestic producers. The amount of each affected domestic producer's bill
will be directly proportional to the total dumping and subsidy offset
amounts that the affected domestic producer previously received under
the related Special Account. All available collection methods will be
used by Customs to collect outstanding bills, including but not limited
to, administrative offset. Interest at the same rate set out at
Sec. 24.3a(c) of this chapter will begin to accrue on unpaid bills 30
days from the bill date.
(c) Payment of certified claims. (1) If the total amount of the
certified net claims filed by affected domestic producers does not
exceed the amount of the offset available for distribution in the
corresponding Special Account, the certified net claim for each affected
domestic producer will be paid in full.
(2) If the certified net claims exceed the dumping and subsidy
offset amount available in the corresponding Special Account, such
offset will be made on a pro rata basis based on each affected
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domestic producer's total certified claim.
(3) In any case where the distribution is not for the entire
certified qualifying expenditure submitted by an affected domestic
producer, and if the affected domestic producer believes that the
reduction was the result of clerical error or mistake by Customs, it
must file a request for reconsideration within 30 calendar days to the
address given in the notification. After considering the matter, the
Customs Service will notify the party requesting reconsideration of its
decision. However, any adjustments will be made only from funds
remaining in the account for that case in the current or future fiscal
years, and will be paid prior to any future distributions.
(d) Final distribution and termination of the Special Account. (1) A
Special Account will be terminated and a final distribution will occur
when:
(i) The order or finding with respect to which the account was
established has terminated; and
(ii) All entries relating to the order or finding are liquidated,
all outstanding amounts collected or properly accounted for by Customs,
all related protests, petitions, and court actions fully concluded, and
all refunds due to importers on the underlying entries are paid in full.
(2) Once the requirements set out in paragraph (d)(1) of this
section have been met, notice of a final distribution will be issued
pursuant to Sec. 159.62.
(3) Amounts not timely claimed under the notice of final
distribution will be permanently deposited into the General Fund of the
Treasury.
(e) Interest on Special Accounts and Clearing Accounts. In
accordance with Federal appropriations law, and Treasury guidelines on
Special Accounts, funds in such accounts are not interest-bearing unless
specified by Congress. Likewise, funds being held in Clearing Accounts
are not interest-bearing unless specified by Congress. Therefore, no
interest will accrue in these accounts. However, statutory interest
charged on antidumping and countervailing duties at liquidation will be
transferred to the Special Account, when collected from the importer.
(f) Distribution final and conclusive. Except as provided in
paragraphs (b)(3) and (c)(3) of this section, any distribution made to
an affected domestic producer under this section shall be final and
conclusive on the affected domestic producer.
(g) Annual report; disclosure of information. Although it is not
mandated in the law (19 U.S.C. 1675c), Customs will issue an annual
report on the disbursements. This report will be available to the public
via the Customs website. The annual report will address any initiatives
that have been implemented to improve the liquidation and disbursement
process. In addition, the annual report will include the information
described in paragraphs (g)(1) and (g)(2) of this section.
(1) Company-specific information. The annual report will include the
following information concerning those parties that have submitted
certifications for a distribution of the offset with respect to each
order or finding as identified by its case number:
(i) The name of the claimant;
(ii) The total dollar amount claimed by that party on its
certification; and
(iii) The total dollar amount disbursed to that company by Customs.
(2) General information. The annual report will include the
following general information for each order or finding as identified by
its case number:
(i) The number of entries and dollar amounts in the clearing account
at the beginning of each fiscal year;
(ii) The number and amount of Customs re-liquidations during the
fiscal year; and
(iii) The dollar amounts remaining uncollected from Customs bills
issued during the fiscal year.