Proposal for a Council Regulation imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in the United States of America
Date: 2009-06-15
Institutions: European Commission
Subjects: United States, biofuel, countervailing charge, diesel fuel, import, originating product

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 15.6.2009 
COM(2009) 271 final 

Proposal for a 

COUNCIL REGULATION 

imposing a definitive countervailing duty and collecting definitively the provisional duty 
imposed on imports of biodiesel originating in the United States of America 

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EXPLANATORY MEMORANDUM 

1. 

Context of the proposal 

Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  2026/97  of 
6 October 1997 on protection against subsidized imports from countries not members 
of  the  European  Community  (‘the  basic  Regulation’)  in  the  proceedings  concerning 
imports of biodiesel originating in the United States of America. 

General context 

This proposal is made in the context of the implementation of the basic Regulation and 
is the result of an investigation which was carried out in line with the substantive and 
procedural requirements laid out in the basic Regulation. 

Existing provisions in the area of the proposal 

Not applicable. 

Consistency with other policies and objectives of the Union 

Not applicable. 

2. 

Consultation of interested parties and impact assessment 

Consultation of interested parties 

Interested parties concerned by the proceeding have had the possibility to defend their 
interests during the investigation, in line with the provisions of the basic Regulation. 

Collection and use of expertise 

There was no need for external expertise. 

Impact assessment 

This proposal is the result of the implementation of the basic Regulation. 

The  basic  Regulation  does  not  foresee  a  general  impact  assessment  but  contains  an 
exhaustive list of conditions that have to be assessed. 

3. 

Legal elements of the proposal 

Summary of the proposed action 

On  13  June  2008,  the  Commission  initiated  an  anti-subsidy  proceeding  concerning 
imports of biodiesel originating in the United States of America. 

The investigation found subsidization of the product concerned, which caused injury to 
the  Community  industry.  The  investigation  also  found  that  it  was  not  against  the 

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Community  interest  to  impose  countervailing  measures.  On  this  basis,  provisional 
measures  were  imposed  by  Commission  Regulation  (EC)  No  194/2009.  The 
continuation of the investigation has confirmed the essential provisional findings. 

Therefore, it is proposed that the Council adopts the attached proposal for a Regulation 
in order to impose definitive measures. 

Legal basis 

Council  Regulation  (EC)  No  2026/97  of  6 October  1997  on  protection  against 
subsidized  imports  from  countries  not  members  of  the  European  Community,  as  last 
amended by Council Regulation (EC) No 461/2004 of 8 March 2004. 

Subsidiarity principle 

The proposal falls under the exclusive competence of the Community. The subsidiarity 
principle therefore does not apply. 

Proportionality principle 

The proposal complies with the proportionality principle because the form of action is 
described  in  the  above-mentioned  basic  Regulation  and  leaves  no  scope  for  national 
decision. 

Indication  of  how  financial  and  administrative  burden  falling  upon  the  Community, 
national governments, regional and local authorities, economic operators and citizens is 
minimized and proportionate to the objective of the proposal is not applicable. 

Choice of instruments 

Proposed instrument: Regulation. 

Other  means  would  not  be  adequate  because  the  basic  Regulation  does  not  foresee 
alternative options. 

4. 

Budgetary implication 

The proposal has no implication for the Community budget. 

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Proposal for a 

COUNCIL REGULATION 

imposing a definitive countervailing duty and collecting definitively the provisional duty 
imposed on imports of biodiesel originating in the United States of America 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community,  

Having  regard  to  Council  Regulation  (EC)  No  2026/97  of  6  October  1997  on  protection 
against  subsidized  imports  from  countries  not  members  of  the  European  Community1  (the 
'basic Regulation'), and in particular Article 15 thereof, 

Having  regard  to  the  proposal  submitted  by  the  Commission  after  consulting  the  Advisory 
Committee, 

Whereas: 

1. 

PROCEDURE 

1.1. 

Provisional measures 

(1) 

(2) 

The  Commission,  by  Regulation  (EC)  No  194/20092  (the  'provisional  Regulation') 
imposed  a  provisional  countervailing  duty  on  imports  of  biodiesel  originating  in  the 
United States of America ('USA' or 'country concerned').  

In  the  parallel  anti-dumping  proceeding,  the  Commission  by  Regulation  (EC)  No 
193/20093  imposed  a  provisional  anti-dumping  duty  on  imports  of  biodiesel 
originating in the United States of America.  

1.2. 

Subsequent procedure 

(3) 

Subsequent to the disclosure of the essential facts and considerations  on the basis of 
which  it  was  decided  to  impose  provisional  countervailing  measures  ('provisional 
disclosure'),  several  interested  parties  made  written  submissions  making  their  views 
known  on  the  provisional  findings.  The  parties  who  so  requested  were  granted  an 
opportunity to be heard. The Commission continued to seek and verify all information 
it  deemed  necessary  for  its  definitive  findings.  The  oral  and  written  comments 

1 

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OJ L 288, 21.10.1997, p.1 
OJ L 67, 12.3.2009, p. 50. 
OJ L 67, 12.3.2009, p. 22. 

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(4) 

(5) 

(6) 

(7) 

(8) 

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submitted  by  the  interested  parties  were  considered  and,  where  appropriate,  the 
provisional findings were modified accordingly.  

All  parties  were  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which  it  was  intended  to  recommend  the  imposition  of  definitive  countervailing 
measures on imports of biodiesel originating in the USA and the definitive collection 
of the amounts secured by way of the provisional duty ("final disclosure"). They were 
also granted a period within which they could make representations subsequent to this 
disclosure. 

The  US  Government 
their 
disappointment with the decision to grant only sixteen days to provide comments on 
the provisional disclosure and also with the decision to decline the requests of certain 
parties for a meaningful extension of time to file those comments.  

interested  parties  expressed 

(USG)  and  other 

Article 30(1) of the basic Regulation provides that interested parties may be provided 
with the details underlying the essential facts and considerations on the basis of which 
provisional  measures  have  been  imposed.  In  this  regard,  it  is  the  Commission's 
practice to provide disclosure to all interested parties to a proceeding upon publication 
in  the  Official  Journal  of  the  European  Union  of  a  regulation  imposing  provisional 
measures and to provide a period of time within which parties may provide comments 
thereon.  This  practice  was  followed  in  this  proceeding.  In  regard  to  the  time  period 
within  which  parties  were  required  to  provide  comments,  the  basic  Regulation  does 
not specify what period should be allowed. In this proceeding, it was considered that a 
period of sixteen days (subsequently extended to seventeen days) be granted given the 
complexity of the proceeding and the need to respect the requirement in Article 11(9) 
of the basic Regulation that the investigation be concluded within thirteen months of 
initiation.  

In  regard  to  the  rate  of  duty  established  for  US  companies  that  did  not  make 
themselves known and cooperate in the investigation, the provisional duty rate was set 
at the level of the lower of the highest subsidisation margin or highest injury margin 
found for the sampled cooperating exporting producers. The rate so established was as 
set  out  ("all  other  companies"  rate  of  €237,0  per  tonne) 
in  Article  1(2)  of  the 
provisional  Regulation.  The  USG  considers  that  this  rate  of  duty  is  a  punitive  rate 
improperly calculated on the basis of the facts available. The USG considers that, in 
order to rely on facts available under Article 28 of the basic Regulation, it must first be 
determined  that  an  interested  party  has  refused  or  failed  to  provide  the  "necessary 
information"4. The USG rather considers that the weighted average rate calculated for 
the non-sampled cooperating companies should be applied instead. 

In  reply  to  this  it  should  be  noted  that,  at  initiation  stage,  the  Commission  sent  the 
sampling  form,  complaint  and  the  Notice  of  initiation  to  the  companies  listed  in  the 
complaint (more than 150 companies). A copy of the sampling form was also attached 
to  the  Note  Verbale  sent  to  the  Mission  of  the  United  States  of  America  to  the 
to 
European  Communities  at 

initiation  and 

they  were 

to  send 

invited 

it 

Article 28(1) of the basic Regulation states: "In cases in which any interested party refuses access to, or 
otherwise does not provide, necessary information within the time limits provided in this Regulation, or 
significantly  impedes  the  investigation,  provisional  or  final  findings,  affirmative  or  negative,  may  be 
made on the basis of the facts available.[…]". 

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exporters/producers in the United States of America. Moreover, the National Biodiesel 
Board,  which  has  been  an  interested  party  from  the  outset  of  this  proceeding, 
represents a great number of companies in the biodiesel industry in the United States 
of America. 

(9) 

The Notice of Initiation as well as the cover letter attached to the sampling form drew 
the attention of the consequences of non-co-operation. As mentioned in recital (8) of 
the  provisional  Regulation,  more  than  50  companies  identified  themselves  in  the 
context of the sampling exercise and provided the requested information within the 15 
day  period.  These  companies  accounted  for  more  than  80%  of  the  total  imports  of 
biodiesel from the United States of America to the Community.  

(10)  Subsequent  to  the  imposition  of  provisional  measures,  the  authorities  of  the  United 
States  of  America  were  asked  to  provide  additional  information.  In  particular,  the 
authorities were asked to invite any additional exporters/producers of biodiesel in the 
United  States  of  America  beyond  those  listed  in  Article  1  and  the  Annex  to  the 
provisional Regulation, who were not known at the time of the initiation and did not 
previously refuse to cooperate5, to make themselves known. 

(11)  The authorities of the United States of America provided a list containing the names of 
more  than  100  additional  companies  (producers/exporters)  in  the  United  States  of 
America.  It  was  examined  whether  any  of  the  companies  had  been  invited  to  co-
operate  at  the  stage  of  initiation  of  the  proceeding.  The  investigation  revealed  that  a 
significant number of the companies on the list had already been invited to co-operate 
during the sampling exercise but had chosen not to do so at that time. In other words, 
these  companies  were  aware  of  the  consequences  of  non-co-operation  in  accordance 
with Article 28 of the basic Regulation.  

(12)  However, as regards those companies (more than 40) on the list who were unknown to 
the Commission at the time of the initiation of this proceeding, it was noted that the 
request to the US authorities to provide details of these companies was made after the 
imposition of provisional measures. It was therefore decided to add these companies to 
the  Annex  of  this  Regulation  and  apply  the  same  duty  rate  to  these  companies  as  to 
those who expressly co-operated but were not chosen in the sample. These companies 
received  disclosure  of  the  essential  facts  and  considerations  on  the  basis  of  which  it 
was intended to impose definitive measures and were invited to comment on the fact 
that it was proposed to add their names to the Annex of this Regulation. 

(13)  Following  final  disclosure,  the  USG  welcomed  the  proposal  to  apply  the  weighted 
average  duty  to  additional  companies.  However,  the  USG  considered  that  no 
explanation had been provided as to why other companies are made subject to the "all 
other  companies"  rate.  In  this  regard  it  is  noted  that  for  the  companies  that  were 
invited  to  co-operate  during  the  sampling  exercise,  explanations  have  already  been 
given  above.  Regarding  possible  US  exporters/producers  that  were  not  individually 
notified  of  the  investigation  nor  mentioned  in  the  list  referred  to  in  recital  (11),  it  is 
noted first of all that extensive efforts were made upon initiation of the proceeding to 
contact companies in the USA that might be concerned by this proceeding (see recitals 
(8)  and  (10)  above).  Furthermore,  additional  efforts  were  made  subsequent  to  the 

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Unlike those companies which received a sampling form but did not return it. 

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imposition of provisional measures as mentioned in recital (10) above to identify other 
companies  which  resulted  in  the  addition  of  more  than  40  companies  to  the  list  of 
those  to  whom  the  weighted  average  duty  would  apply.  It  is  considered  that  these 
extensive efforts have given every opportunity to biodiesel companies in the USA to 
make  themselves  known.  In  this  regard,  it  is  noted  that  the  relevant  industry 
association has been involved in the proceeding since its initiation. Consequently, it is 
considered that the "all other companies" rate of duty should be applied to companies 
that did not make themselves known. 

(14)  One company that submitted a reply to the sampling form and was consequently listed 
in the Annex to the Provisional Regulation requested that its parent company be added 
to  the  list  of  companies  in  the  Annex.  This  company  also  requested  that  the  city 
location of the two companies be changed in the Annex to correctly reflect the address 
on the invoices of the companies. 

(15)  Having  examined  this  company's request,  it  was  considered  that  the  parent  company 
should also be listed in the Annex to the current Regulation as it was mentioned in the 
company's  reply  to  the  sampling  form  as  the  only  related  company  involved  in  the 
biodiesel business. The city location for both companies is also being revised. 

(16)  Two cooperating companies requested that their names be removed from the Annex as 
they claimed not to be exporting producers. The companies' names have been removed 
accordingly. 

(17) 

It is recalled that the investigation of subsidisation and injury covered the period from 
1  April  2007  to  31  March  2008  ('investigation  period'  or  'IP').  With  respect  to  the 
trends relevant for the injury assessment, the Commission analysed data covering the 
period from January 2004 to the end of the IP ('period considered'). 

1.3. 

Sampling of Community producers and exporting producers in the USA  

(18) 

In the absence of any comments concerning the sampling of exporting producers in the 
USA the provisional findings in recitals (6) to (10) of the provisional Regulation are 
hereby confirmed. 

(19)  Certain  parties  commented  on  the  representativity  of  the  sample  of  Community 

producers. These comments are addressed in recitals (77) to (81) below.  

2. 

PRODUCT CONCERNED AND LIKE PRODUCT 

2.1. 

Product concerned 

(20) 

It is recalled that in the notice of initiation, the product allegedly being subsidised was 
defined as fatty-acid monoalkyl esters and/or paraffinic gasoils from synthesis and/or 
hydro-treatment,  of  non-fossil  origin  (commonly  known  as  ‘biodiesel’),  whether  in 
pure form or in a blend.  

(21)  The  complaint  contained  prima  facie  evidence  that  biodiesel  and  all  blends,  of 
biodiesel with mineral diesel, produced and subsidized in the USA and exported to the 
Community  had  affected  the  economic  situation  of  the  biodiesel  producers  in  the 
Community. Consistent with the characteristics of the relevant US biodiesel producers 
and  domestic  market,  the  definition  of  the  product  concerned  intended  to  cover 

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biodiesel also when incorporated into the biodiesel blends. It was however considered 
that the definition of the product concerned as mentioned in the notice of initiation and 
in  recital  (20)  above,  could  give  rise  to  concerns  as  to  what  producers  and  what 
product  types  were  intended  to  be  covered  by  the  investigation  and  those  that  were 
not.  

(22)  Similarly,  for  the  investigation  of  subsidization  and  injury,  in  particular  for 
establishing  the  subsidy  margins  and  injury  elimination  levels  it  was  necessary  to 
clearly identify the products concerned by the investigation.  

(23) 

In  line  with  the  characteristics  of  the  US  market,  the  product  concerned  was 
provisionally defined as fatty acid monoalkyl esters and/or paraffinic gasoil obtained 
from  synthesis  and/or  hydro-treatment,  of  non-fossil  origin,  commonly  known  as 
‘biodiesel’,  whether  in  pure  form  or  in  blends,  which  are  above  B20.  Hence  the 
product concerned covered pure biodiesel (B100) and all blends which contain more 
that  20%  biodiesel  (‘the  product  concerned’).  This  threshold  was  considered  to  be 
appropriate to allow a clear distinction between the various types of blends which are 
intended  to  be  further  blended  and  those  intended  for  direct  consumption  on  the  US 
market.  

(24)  The  investigation  showed  that  all  types  of  biodiesel  and  the  biodiesel  in  the  blends 
covered  by  this  investigation,  despite  possible  differences  in  terms  of  raw  material 
used for the production, or variances in the production process, have the same or very 
similar basic physical, chemical and technical characteristics and are used for the same 
purposes.  The  possible  variations  in  the  product  concerned  do  not  alter  its  basic 
definition, its characteristics or the perception of that various parties have of it. 

(25)  Claims  were  received  from  interested  parties  on  the  definition  of  the  product 
concerned  and  the  like  product  whereby  they  contested  both  the  definition  of  the 
product  concerned  and  the  like  product  simultaneously  with  the  same  arguments 
without  making  any  distinction  between  the  concept  of  product  concerned  and  like 
product in the context of the proceeding.  

(26) 

It  is  recalled  that  whilst  the  concept  of  the  product  concerned  is  governed  by  the 
provisions of Article 1(1) to 1(4) of the basic Regulation, the interpretation of the term 
'like product' is mentioned in Article 1(5) of the basic Regulation. Hence, the claims 
will be addressed separately below.  

(27)  One party questioned to what extent blends with low proportion of biodiesel (e.g. B21) 
should  still  deem  to  qualify  as  biodiesel  on  par  with  pure  biodiesel  (B100)  or  on 
similar blends that consist primarily of biodiesel with lower amount of mineral diesel 
(e.g. B99). They claimed that B100 and B99 basically underwent the investigation and 
that  all  the  calculations  of  dumping  and  injury  were  made  on  the  basis  of  these  two 
product types. In their view establishing a threshold just above B20, namely the low-
level blend sold directly to consumers in the US leads to an artificial definition of the 
product concerned.  

(28)  The same party also questioned whether a blend with 20% biodiesel still qualifies to 
be a biodiesel fuel rather than mineral diesel which is not included in the definition of 

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the  product  concerned.  This  party  understands  that  the  EU  supports  the  view  that  a 
new  customs  heading  should  be  created6  for  biodiesel  in  the  customs  Harmonised 
System  (HS). In  its view  the  Commission  broadened the definition of the product in 
the present proceeding and expanded the product types affected by the imposition of 
the measures. 

(29) 

In  addition,  the  party  considers  that  at  the  time  of  the  investigation  no  specific 
threshold existed to determine what is biodiesel for the classification in CN code 38 24 
90 91, the specific code created since 1 January 2008 for biodiesel by the EU. They 
questioned whether under the rule 3(b) of the general rules for the interpretation of the 
combined nomenclature7 a blend containing less than 50% biodiesel could still qualify 
as  biodiesel.  They  further  mentioned  that  the  examples  of  blends  mentioned  in  the 
Commission  questionnaire  were  of  high  biodiesel  contents  and  thus  implied  that  the 
product  concerned  is  only  biodiesel  and  blends  containing  very  high  levels  of 
biodiesel. 

(30)  The  party  also  claimed  that  the  EU  cannot  change  the  definition  of  the  product 
concerned whilst maintaining a different like product. It referred to Article 15.1 of the 
WTO  ASCM  (Agreement  on  Subsidies  and  Countervailing  Measures).  According  to 
them the subsidy and the injury findings are made based on B100 and B99 and the US 
Harmonised Tariff System (HTS) codes8 which were used in the investigation do not 
appear to include products with biodiesel volume as low as 20%. They also referred to 
the  provisional  disclosure  to  the  sampled  US  biodiesel  producers  that  demonstrates 
that  the  sampled  US  producers  sold  blends  exclusively  made  of  various  types  of 
biodiesel. Hence the product concerned should be limited to the products that contain 
100% of biodiesel (B100), even if composed of biodiesel made of different feedstock, 
or to blends containing 99% of biodiesel (B99). 

(31)  The  party  referred  to  a  recent  Court  Judgement9  concerning  imports  of  ammonium 
nitrate  and  concluded  that  the  rationale  of  that  judgment  also  applies  to  the  current 
proceeding and that biodiesel that is not part of blends in very high content cannot be 
subject  to  the  investigation  and  to  measures  as  it  is  not  the  like  product  for  which 
dumping and injury findings were drawn, namely products that contain only biodiesel 
(B100) or blends with 99% of biodiesel (B99). 

(32)  The parties did not bring any evidence or a legal reference which would show that the 
product  concerned  was  not  correctly  defined  in  the  present  investigation.  The 
provisions in Article 1(1) to 1(4) of the basic Regulation which provide guidance as to 
the definition of the product concerned. Article 1(1) states that: "A countervailing duty 
may  be  imposed  for  the  purpose  of  offsetting  any  subsidy  granted,  directly  or 

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Heading  number  3826  00  to  cover  "biodiesel  and  mixtures  thereof,  not  containing  or  containing  less 
than 70% by weight of petroleum oils or oils obtained from bituminous minerals".  
"Mixtures composite goods consisting of different materials or made of different components and goods 
put in sets for retail sales, which cannot be classified by reference to 3(a), shall be classified as if they 
consisted  of  the  material  or  component  which  gives  them  their  essential  character  in  so  far  as  this 
criterion is applicable."  
HTS codes 38 24 90 40 00 and 38 24 90 40 20  
Case  T-348/05:  JSC  Kirovo-Chepetsky  Khimichesky  Kombinat  v  Council,  10  September  2008,  paras 
61-63.  

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indirectly, for the manufacture, production, export or transport of any product whose 
release for free circulation in the Community causes injury." 

(33)  As mentioned in recital (21) above, the complaint contained prima facie evidence that 
biodiesel  and  all  blends,  of  biodiesel  with  mineral  diesel,  produced  in  the  USA  and 
exported at subsidised price to the Community had affected the economic situation of 
the biodiesel producers in the Community.  

(34)  The  parties  did  not  bring  any  evidence  showing  that  the  threshold  fixed  in  the 
provisional Regulation to set the dividing line between product concerned and product 
non concerned was artificial. As mentioned in recitals (26) and (28) of the provisional 
Regulation,  the  investigation  showed  that  B20,  and  potentially  lower  level  blends, 
were actually sold directly to consumers in the US. The investigation also showed that 
the market for blending and the market for consumer products were different markets 
with different customers: one market where biodiesel and biodiesel blends are destined 
to  further  blending  by  traders  and  blenders  and  one  market  where  the  blends  are 
destined to the distribution network and thus to consumers. Defining the threshold for 
the  product  concerned  above  B20  allowed  to  draw  a  clear  dividing  line  and  avoided 
confusion between the products, the markets and the various parties in the USA. The 
claim was thus rejected.  

(35) 

In all anti-subsidy investigations it is common that individual companies investigated 
do not produce and sell all the product types included in the definition of the product 
concerned. Some companies may produce a very limited range of product types while 
other may produce a larger range. This, however, does not affect the definition of the 
product concerned. It is therefore considered that the claim that the product concerned 
should only cover the product types that were exported by the US producers and used 
for the subsidisation and the injury calculations is unfounded.  

(36)  As mentioned in the provisional Regulation and in recital (20) above, the investigation 
primarily focused on biodiesel, whether in pure form or when incorporated in blends. 
The  countervailing  measures  will  apply  to  the  relevant  blends  exported  to  the 
Community  market.  Hence,  it  is  considered  that  the  question  whether  a  blend  with 
20% biodiesel still qualifies for a biodiesel fuel rather than mineral diesel which is not 
included in the definition of the product concerned is not relevant.  

(37) 

It  should  be  clarified  that  the  subsidy  and  the  injury  findings  of  each  company 
investigated  were  exclusively  based  on  the  relevant  product  types  which  were 
produced and sold by the relevant company during the IP. Claiming that the definition 
of  the  product  concerned  including  blends  above  B20  would  affect  unduly  US 
producers is not founded and cannot lead to the conclusion that the product concerned 
should  be  limited  to  the  products  that  contain  100%  of  biodiesel  (B100)  even  if 
composed of biodiesel of different feedstock or a blend composed of 99% of biodiesel 
(B99). Including blends above B20 in the definition of the product concerned had no 
impact  whatsoever  on  the  findings  made  for  companies  investigated  which  are  not 
producing and exporting this product type. 

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(38)  The allegation of the party according to which the rationale of a Court Judgment10 also 
applies to the current proceeding and that biodiesel that is not part of blends in very 
high content cannot be subject to the scope of the investigation is also not founded. In 
fact,  for  each  company  investigated,  any  injury  and  subsidy  margins  will  exactly 
match  the  product  concerned  and  the  like  product  for  which  subsidy  and  injury 
findings  were  established,  namely  the  relevant  products  types  that  contain  biodiesel 
that  were  sold  domestically  and  exported  to  the  Community  by  that  company.  Also, 
the  judgment  which  is  invoked  by  the  operator  concerned  a  review  of  existing  anti-
dumping  measures  resulting  in  their  extension  to  other  products  than  the  product 
concerned, which is not the case in the current investigation. 

(39)  Although  it  is  considered  that  the  examples  provided  in  a  questionnaire  intended  to 
collect data for the purpose of an investigation cannot be used to make assumptions as 
to  the  conclusion  of  the  investigation,  it  is  noteworthy  that  the  Commission  cannot 
know in advance, namely before its on-spot investigation takes place, which types of 
products  will  be  produced  and  sold  in  the  domestic  market  and  for  export  by  the 
companies concerned at the moment of the drafting of the questionnaire. According to 
Article 1 of the basic Regulation, the relevant product types to include in the scope of 
an  anti-subsidy  investigation  are  those  considered  to  be  subsidized  from  a 
countervailable  subsidy.  In  such  case  a  countervailing  duty  may  be  imposed  for  the 
purpose of offsetting any subsidy granted directly and indirectly for the manufacture, 
production, export or transport of any product.  

(40) 

It  is  also  considered  that  B100  should  not  be  excluded  from  the  product  definition. 
Firstly, because B100 or pure biodiesel is the core product for which the US subsidies 
were  established.  This  is  clear  from  the  US  Internal  Revenue  Code  (US.  CODE),  in 
particular Title 26, $40A, point (d), which clearly defines the term biodiesel, that the 
whole subsidy scheme was implemented to support the biodiesel industry in the USA. 
Secondly, because during the verification visit at the premises of the USG, it appeared 
that biodiesel even when blended outside the USA by a company having a subsidiary 
in the USA could benefit from the Federal biodiesel Tax credit of USD 1 per gallon in 
the USA.  

(41)  The  investigation  has  also  showed  that  the  production  of  pure  biodiesel  by  any 
producer in the USA triggers the issuance of producer certificate mentioned in recital 
(51)  of  the  provisional  Regulation.  This  certificate  is  transferable  and  must  be 
presented to the US Government when the claim for subsidy is introduced.  

(42)  Based on the above facts and considerations, it is confirmed that all types of biodiesel 
and  the  biodiesel  in  the  blends  covered  by  this  investigation,  namely  pure  biodiesel 
(B100)  and  blends  above  B20,  despite  possible  differences  in  terms  of  raw  material 
used for the production, or variances in the production process, have the same or very 
similar basic physical, chemical and technical characteristics and are used for the same 
purposes.  The  possible  variations  in  the  product  concerned  do  not  alter  its  basic 
definition, its characteristics or the perception that various parties have of it. 

2.2. 

Like product 

10 

Case  T-348/05:  JSC  Kirovo-Chepetsky  Khimichesky  Kombinat  v  Council,  10  September  2008,  paras 
61-63.  

EN 

11 

   EN 

 
                                                 
(43) 

It was provisionally found that the products produced and sold on the domestic market 
of  the  USA,  which  are  covered  by  this  investigation,  have  similar  basic  physical, 
chemical and technical characteristics and uses as those exported from this country to 
the  Community  market.  Similarly,  the  products  manufactured  by  the  Community 
industry and sold on the Community market have similar basic physical, chemical and 
technical characteristics and uses when compared to those exported to the Community 
from the country concerned.  

(44)  Therefore  no  differences  were  found  between  the  various  types  of  the  product 
concerned  and  the  Community  product  types  sold  on  the  Community  market  which 
would  lead  to  the  conclusion  that  the  product  types  produced  and  sold  on  the 
Community  market  are  not  like  products,  sharing  the  same  or  very  similar  basic 
physical,  chemical  and  technical  characteristics  as  to  the  types  of  the  product 
concerned  produced  in  the  USA  and  exported  to  the  Community.  It  was  therefore 
concluded that all types of biodiesel covered by this investigation are considered to be 
alike within the meaning of Article 1(5) of the basic Regulation.  

(45)  One  party  claimed  that  the  definition  of  the  like  product  is  intricately  linked  to  the 
identification  of  the  product  concerned  and  must  be  established  in  term  of  physical 
characteristics and end-use of the product. They basically said that B20 is not used for 
consumption  in  the  EU  but  rather  an  even  lower  blend  which  is  B5.  Hence  the  like 
product  was  wrongly  defined.  They  also  claimed  that  the  definition  of  the  product 
concerned cannot be changed whilst maintaining a different like product.  

(46)  As it clearly appears in recital (31) to (37) of the provisional Regulation, the definition 
of  the  like  product  is  linked  to  the  identification  of  the  product  concerned  and  was 
mainly established in term of physical characteristics of the product. The actual end-
use  of  the  products  was  also  taken  into  account  and  it  was  considered  that  the 
threshold  of  B20  should  also  be  maintained for  the  definition  of  the  like  product.  In 
this case, the number of product types covered by the definition of the like product has 
also been reduced to match with the definition of the product concerned.  

(47)  Hence,  the  claims  of  the  parties  that  the  definition  of  the  like  product  was  incorrect 
have to be rejected and the provisional definition of the like product can be confirmed.  

3. 

SUBSIDISATION 

3.1. 

General 

(48)  One  company  claimed  that  the  reasons  set  out  in  recital  9  of  the  Provisional 
Regulation for its exclusion from the sample were known to the Commission when it 
originally  chose  the  sample.  On  this  basis,  the  company  should  not  have  been 
excluded from the sample.  

(49) 

In regard to this claim, it is noted that, whether or not the company is included in the 
sample  has  no  material  impact  on  the  company  in  terms  of  the  outcome  of  the 
investigation. If it were to be included in the sample, the company would have its own 
individual countervailing duty rate established as was done at provisional stage even 
though  the  company  was  excluded  from  the  sample.  The  current  Regulation  also 
establishes  an  individual  countervailing  duty  rate  for  the  company.  Following  final 
disclosure  of  these  findings,  the  company  claimed  that  its  "de-facto  exclusion"  from 

EN 

12 

   EN 

 
the  sampled  exporters  prevented  it  from  some  substantive  rights,  including  rights 
resulting  from  specific  calculations  as  applied  to  data  provided  by  the  sampled 
exporters. In reply to this, it is noted that a specific calculation was made of the level 
of subsidisation of this company. In regard to the injury margin for this company, this 
was  established  as  set  out  in  recitals  (173)  to  (175)  below,  i.e.  on  the  basis  of  facts 
available  under  Article  28  of  the  basic  Regulation  given  that  the  company  did  not 
provide  the  requested  information  in  regard  to  its  export  sales  and  resales  in  the 
Community. In these circumstances, the company's claim is rejected. 

(50)  One  company  claimed  that  the  countervailing  duty  rate  appeared  to  have  been 
calculated  on  the  basis  of  domestic  sales  in  addition  to  export  sales.  The  company 
asked that the calculations be corrected accordingly. 

(51) 

In  regard  to  this  claim,  it  is  noted  that  all  of  the  subsidy  schemes  that  are  being 
countervailed  have  been  found  to  be  domestic  subsidies,  i.e.  they  equally  benefit 
domestic as well as export sales. In line with standard practice the amount of benefit 
from  each  scheme  in  the  IP  has  been  allocated  over  total  sales  of  the  product 
concerned (i.e. domestic plus export sales). The company's claim is therefore rejected.  

(52)  This company as well as another company also pointed out that the CIF values used 
for calculating the countervailing duty rate are not the same as the ones used for the 
injury  and  dumping  calculations.  The  companies  consider  that,  in  order  to  ensure 
consistency, the correct CIF values which have been used for the dumping and injury 
calculations should also be used for the countervailing duty rate calculations.  

(53) 

In regard, to this claim, it must again be pointed out that, as mentioned in recital (51) 
above, all of the subsidy schemes that are being countervailed have been found to be 
domestic  subsidies.  In  these  circumstances,  the  denominator  used  in  establishing  the 
benefit  in  the  IP  is  total  sales  unlike  in  anti-dumping  proceedings  where  the 
denominator  is  export  sales  to  the  EU  only.  In  these  circumstances,  this  claim  is 
rejected. 

(54)  A  number  of  companies  and  the  National  Biodiesel  Board  (NBB)  argued  that  a 
countervailing duty should not be levied on imports of B100 on the grounds that the 
subsidy and injury margins have been calculated without including sales of B100. In 
regard to this claim, it is noted that sales of B100 produced by the sampled companies 
have been taken into account in calculating the amount of countervailable subsidies as 
well  as  in  the  calculation  of  the  injury  margin.  In  these  circumstances,  this  claim  is 
rejected. 

3.2. 

Excise tax /Income tax credit 

(55)  One  company  claimed  that  the  amount  of  benefit  that  it  received  under  the  federal 
excise tax/income tax credit in the investigation period (IP), would be less than USD 1 
per  gallon  if  the  benefit  were  to  be  calculated  by  spreading  it  over  the  total  sales 
volume in the IP.  

(56) 

In  regard  to  the  benefit  received  under  the  excise  tax/income  tax  credit  scheme,  this 
was calculated, as stated in recital (59) of the provisional Regulation, on the basis of 
USD  1  per  gallon  of  neat  biodiesel  sold  in  the  IP,  whether  sold  as  pure  biodiesel 
(B100)  or  in  a  blend.  This  benefit  was  reflected  in  the  level  of  provisional 

EN 

13 

   EN 

 
countervailing duty imposed. The provisional duty, and indeed the definitive duty now 
to be imposed by this regulation, provides that the countervailing duty on blends shall 
be  applicable  in  proportion  in  the  blend  of  the  total  content  of  biodiesel.  In  these 
circumstances, it is considered that a duty based on USD 1 per gallon of neat biodiesel 
correctly  reflects  the  benefit  in  the  IP  as  a  lesser  duty  is  imposed  on,  for  example, 
imports  of  B99  given  that  it  contains  less  biodiesel.  In  these  circumstances,  the 
company' claim is rejected. 

(57)  A number of companies and the NBB claimed that, as no federal excise tax/income tax 
credit is available on sales of B100, there is no basis to consider that such sales have 
benefited  from  this  tax  credit.  One  of  these  companies  argued  in  particular  that,  for 
their  sales  of  B100  in  the  IP,  it  had  not  been  demonstrated  that  they  had  been  the 
indirect recipient of the USD 1 per gallon tax credit.  

(58) 

In  addressing  these  claims,  it  should  be  recalled  that  the  US  Code  provides  that  the 
biodiesel mixture credit will not be granted unless the company (blender) that makes 
the  mixture  of  biodiesel  and  mineral  diesel  obtains  a  certificate  ('Certificate  for 
Biodiesel')  from  the  producer  of  the  biodiesel  in  which  the  producer  certifies  the 
quantity  of  biodiesel  to  which  the  certificate  relates.  The  biodiesel  certificate  is 
transferable,  entitling  the  holder  to  a  USD  1  per  gallon  tax  credit  for  the  number  of 
gallons of biodiesel used by the claimant in producing any biodiesel mixture. In regard 
to  sales  of  B100  by  the  investigated  companies  in  the  IP,  there  is  a  benefit  to  the 
companies as the biodiesel certificate confers a right to a USD 1 per gallon tax credit.  

(59)  Following final disclosure, some parties argued that the benefit from the blender's tax 
credit  is  obtained  by  the  blender  of  the  biodiesel  and  that  there  has  been  no 
determination that for sales of pure biodiesel (B100), the benefit would be received by 
the producer/seller of the B100. In reply to this, it should be noted that, as explained 
above,  the  biodiesel  certificate  is  transferable.  In  effect,  therefore,  the  holder  of  the 
certificate knows that the certificate has a value of USD 1 per gallon.  

(60)  The USG considered that, as it was stated in recital 44 of the Provisional Regulation 
that  in  order  to  be  eligible  for  the  biodiesel  mixture  credit  a  company  must  create  a 
mixture of biodiesel and diesel fuel, the amount of benefit should not be established on 
the  basis  of  pure  biodiesel  or  in  a  blend  as  stated  in  recital  (59)  of  the  Provisional 
Regulation.  In  this  regard,  it  is  pointed  out  that,  for  the  reasons  mentioned  in  recital 
(58) above and as addressed in recitals (54) to (55) of the Provisional Regulation, it is 
considered that all biodiesel is subsidised.  

(61) 

In these circumstances, it is considered that sales of B100 have been found to confer a 
benefit  to  the  producers  of  this  product  and  the  claims  in  recitals  (57)  to  (60)  are 
therefore rejected.  

(62)  Some companies and the NBB argued that a countervailing duty should not be levied 
on imports of B100, since such sales to the EU cannot benefit from the biodiesel tax 
credit.  As  stated  in  recital  (60)  above,  it  was  found  that  all  biodiesel  is  subsidised 
through  the  tax  credit  scheme.  In  these  circumstances,  it  is  considered  that  a 
countervailing  duty  can  be  levied  on  imports  of  pure  biodiesel  and  biodiesel  in  a 
blend.  It  should  furthermore  be  noted  that  sales  of  B100  to  the  Community  are  also 
eligible for benefits under the Small Agribiodiesel Producer Income tax credit.  

EN 

14 

   EN 

 
(63)  During the IP, some of the companies in the sample had exported small quantities of 
B100 to the Community. However, there appeared to be no economic justification to 
export B100 in lieu of B99 to the Community, as only the latter directly or indirectly 
would  have  benefitted  from  the  biodiesel  mixture  credit  unless  the  exporter  or  the 
purchaser qualified for the above-mentioned income tax credit. If that is the case, there 
would be a benefit for the US producer in the same way as for sales of B100 on the 
domestic market. Following final disclosure, the USG stated that no evidence had been 
cited  to  substantiate  the  statement  that  there  is  no  economic  justification  to  export 
B100 in lieu of B99 to the Community. In this regard, it must be pointed out that the 
finding  above  states  that  there  "appears"  to  be  no  economic  justification  to  export 
B100 in lieu of B99 to the Community. The reasons for this conclusion are as set out 
above. 

(64)  Therefore, in view of the fact that it is perfectly possible that export of B100 could be 
subsidised  and  that  there  appears  to  be  no  economic  justification  to  export  to  the 
Community without a subsidy, the above claims are rejected.  

(65) 

In the light of the above, the findings in relation to this scheme as set out in recitals 
(41) to (63) of the provisional Regulation are hereby confirmed. 

3.3. 

Small Agribiodiesel Producer Income tax credit 

(66) 

In  the  absence  of  any  comments  concerning  this  scheme,  recitals  (64)  to  (72)  of  the 
provisional Regulation are hereby confirmed. 

3.4. 

The US Department of Agriculture Bioenergy Program 

(67) 

In  the  absence  of  any  comments  concerning  this  scheme,  recitals  (73)  to  (86)  of  the 
provisional Regulation are hereby confirmed. 

STATE SCHEMES 

(68) 

In  the  absence  of  any  comments  concerning  the  schemes  mentioned  below,  recitals 
(87) to (157) of the provisional Regulation are hereby confirmed. 

–  Illinois biodiesel tax exemption 

–  Missouri qualified biodiesel producer incentive fund 

–  North Dakota biofuels partnership in assisting community expansion (PACE) loan 

Program 

–  North Dakota biodiesel production equipment tax credit 

–  North Dakota biodiesel income tax credit 

–  Texas ethanol and biodiesel blend tax exemption 

–  Texas fuel ethanol and biodiesel production incentive program 

–  Washington State biofuels production tax exemption 

EN 

15 

   EN 

 
3.5. 

Amount of countervailable subsidies 

(69)  The amount of countervailable subsidies in accordance with the provisions of the basic 
Regulation,  expressed  ad  valorem,  for  the  investigated  companies  ranges  between 
29,1%  and  41,1%.  As  these  are  at  the  same  level  as  set  out  in  recital  (158)  of  the 
provisional Regulation, that recital is therefore confirmed. 

SCHEME→ 

Biodiesel 
Mixture 
Credit 

Small 
Agri- 
biodiesel 
Producer
Income 
tax credit

Missouri
qualified
biodiesel 
producer
incentive
fund 

Texas 
fuel 
ethanol 
and 
biodiesel 
production
incentive 
program 

Washington 
State 
biofuels 
production 
tax 
exemption 

Total

COMPANY↓ 

% 

% 

Archer Daniels 
Midland 
Company 

31,3 

Cargill Inc. 

34,1 

0,4 

% 

3,8 

Green Earth 
Fuels of Houston 
LLC 

Imperium 
Renewables Inc. 

Peter Cremer 
North America 
LP 

Vinmar Overseas 
Limited 

World Energy 
Alternatives LLC 

38,7 

28,4 

41,0 

41,1 

37,6 

% 

% 

% 

0,3 

35,1 

34,5 

39,0 

0,7 

29,1 

41,0 

41,1 

37,6 

(70)  The  methodology  for  establishing  the  subsidy  margin  for  the  cooperating  companies 
not included in the sample was set out in recital (159) of the provisional Regulation. In 
accordance  with  Article  15(3)  of  the  basic  Regulation,  the  subsidy  margin  for  the 
cooperating  companies  not  included  in  the  sample,  calculated  on  the  basis  of  the 
weighted  average  subsidy  margin  established  for  the  cooperating  companies  in  the 
sample, is 36,0%. Hence, recital (159) of the provisional Regulation is confirmed. 

(71)  The basis for establishing the country-wide subsidy margin was set out in recital (160) 
of the  provisional  Regulation. In the absence of any comments in this regard, recital 
(160) of the provisional Regulation is confirmed.  

4. 

COMMUNITY INDUSTRY 

EN 

16 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
4.1. 

Community production and standing 

(72)  One interested party contested the exclusion from the assessment of total Community 
production  of  the  group  of  producers  related  to  an  exporting  producer  in  the  USA 
mentioned in recital (162) of the provisional Regulation on the basis of Article 9(1) of 
the basic Regulation. It argued that the correct denominator to establish support to the 
complaint  should  be  kept  at  around  5  400  thousand  tonnes  and  not  decreased  to 
between 4 200 to 4 600 thousand tonnes as was done at provisional stage.  

the 

relevant  provisions  of 

(73)  The relevant  provisions of the  basic Regulation to assess standing or the support for 
the  investigation  are  Article  9(1)  and  Article  10(8)  of  the  basic  Regulation.  For 
information, 
the  Agreement  on  Subsidies  and 
Countervailing  Measures  concerning  the  definition  of  the  domestic  industry  are 
contained  in  the  EU's  legislation  in  Article  9(1)  of  the  basic  Regulation.  From  these 
provisions,  it  is  clear  that  the  definition  of  the  domestic  production  to  establish 
standing  should  be  made  in  conjunction  and  is  subject  to  the  same  requirements  as 
those for the definition of the domestic industry. In any case this claim is not such as 
to alter the conclusion that the investigation was supported by a major proportion of 
Community production. Even if the denominator was kept at 5 400 thousand tonnes, 
the  support  for  the  investigation  would  be  above  50%,  namely  largely  above  the 
requirements of the basic Regulation.  

(74)  The  same  interested  party  argued  that  in  the  light  of  the  definition  of  the  product 
concerned and the like product which is biodiesel whether in pure form or in blends 
containing more than 20% biodiesel (B20), the Community industry and Community 
production  must  be  composed  of  all  Community  companies  producing  biodiesel  and 
blends  above  B20.  It  claimed  that  there  is  no  evidence  that  the  complainant  or  the 
Commission  has  sought  to  include  these  companies  into  the  total  production  or 
determined that these producers supported the complaint.  

(75) 

In this regard it is noted that the total Community production figure indicated in recital 
(162)  of  the  provisional  Regulation  does  indeed  take  into  account  the  production 
volume of biodiesel in blends above B20. It can further be clarified that according to 
available information, the production in the Community of blends containing between 
21% (B21) and 99% (B99) of biodiesel has been very limited during the IP. The only 
production  of  blends  in  this  range  was  concentrated  on  blends  of  B30  and  did  not 
exceed  60  000  tonnes  in  terms  of  biodiesel  content.  Moreover,  the  Commission  has 
contacted  known  producers  of  B30  after  the  imposition  of  provisional  measures  and 
the  responses  received  from  two  of  the  producer  indicate  that  they  support  the 
complaint. 

(76) 

In  the  absence  of  any  other  comments  recitals  (161)  to  (163)  of  the  provisional 
Regulation concerning the definition of Community production, Community industry 
and standing are hereby confirmed. 

4.2. 

Sampling  

(77)  One  party  argued  that  the  performance  of  one  sampled  Community  producer  that 
failed to cooperate in the investigation was very good and it should have been taken 
into  account  in  the  assessment  of  injury  to  the  Community  industry.  It  was  claimed 
that this producer was not injured during the IP and that best facts available should be 

EN 

17 

   EN 

 
used  in  accordance  with  Article  28  of  the  basic  Regulation.  In  this  regard  the  party 
suggested  using  the  publicly  available  financial  data  of  this  producer  for  2007  and 
2008 for the examination of injury to the Community industry.  

(78) 

It  is  common  practice  in  anti-subsidy  investigations  that  the  Commission  exclude 
producers that failed to cooperate for the purpose of the assessment of injury and not 
to  use  facts  available  in  line  with  Article  28  of  the  basic  Regulation.  The  data 
concerning injury cover an extended period of 4 years and it is not possible to obtain 
based on public sources all the necessary information to establish all injury indicators 
for  the  whole  period.  In  this  particular  case,  the  said  Community  producer  was 
excluded from the investigation because it had failed to provide complete meaningful 
information  for  the  years  2004  to  2006  and  it  only  provided  partial  information  for 
2007 and the IP. Using the public information for this producer’s biodiesel activity for 
2007 and 2008, would not have allowed to obtain data for all injury factors and for all 
the  years  of  the  period  considered.  This  would  have  distorted  the  trends  which  are 
relevant for the assessment of injury.  

(79)  Moreover,  maintaining  the  said  producer  in  the  sample  would  have  not  allowed  the 
assessment  of  undercutting  to  be  made  for  the  totality  of  the  sales  of  the  sampled 
producers  as  the  said  company  did  not  provide  a  listing  with  its  detailed  sales  by 
product type for the IP. Finally, it is noteworthy that contrary to the claim made by the 
interested  party,  the  financial  performance  of  the  said  producer,  in  terms  of 
profitability  as  shown  in  its  publicly  available  data,  was  well  below  the  average 
profitability established for the co-operating sampled Community producers as shown 
in Table 7 of the provisional Regulation. On the basis of the above the request made 
by this party had to be rejected.  

(80)  The  same  party  claimed  that  the  sample  of  Community  producers  was  not 
representative of the  Community  industry as  it  was  based  only  on  producers  of  pure 
biodiesel (B100) and therefore failed to include producers of blends from B99 down to 
B20 as well as blenders of B100. 

(81) 

In  this  regard  it  is  recalled  that  as  mentioned  in  recital  (75)  above,  the  Community 
production of biodiesel blends between B20 and B99 has been very limited during the 
IP. In view of this limited quantity, which represents less than 2% of total Community 
production of the like product in the IP, it can be concluded that the selection of the 
sample which was mainly based on the largest volume of production and sales within 
the Community was representative. As far as the blenders of B100 is concerned these 
companies  could  not  be  considered  as  producers  of  the  like  product  as  they  are 
processing  by  a  simple  blending  operation  an  existing  like  product.  The  claim  was 
therefore rejected.  

(82) 

In  the  absence  of  any  other  comments  recitals  (164)  to  (166)  of  the  provisional 
Regulation are hereby confirmed. 

5. 

INJURY 

(83)  As  mentioned  in  recital  (17)  above,  the  examination  of  the  trends  concerning  the 
assessment  of  injury  covered  the  period  from  January  2004  to  the  end  of  the  IP. 
However  the  investigation  showed  that  the  Community  industry  was  practically 
starting up in 2004. It was, thus, considered more appropriate to make an analysis on 

EN 

18 

   EN 

 
the  possible  injury  and  the  economic  situation  of  the  Community  industry  based  on 
trends for the period 2005 to the IP ('period analysed'). As no party commented on this 
approach recital (167) of the provisional Regulation is confirmed.  

5.1. 

Community consumption 

Table 1 

Community 
Consumption 

2004 

2005 

2006 

2007 

IP 

Tonnes 

1 936 034 

3 204 504 

4 968 838 

6 644 042 

6 608 659 

Index 2005=100 

60 

100 

155 

207 

206 

(84) 

In  the  absence  of  any  comments  that  could  justify  a  change  concerning  the 
Community  consumption  as  shown  in  the  above  table,  recitals  (168)  to  (173)  of  the 
provisional Regulation are hereby confirmed. 

5.2. 

Volume of imports from the country concerned and market share 

(85)  The  table  below  shows  the  total  imports  into  the  Community  market  made  by  US 

exporting producers during the period considered. 

Table 2 

All imports 
from USA 

2004 

2005 

2006 

2007 

IP 

Tonnes 

2 634 

11 504 

50 838 

730 922 

1 137 152 

Index 
2005=100 

23 

100 

442 

6 354 

9 885 

Market share 

0,1% 

0,4% 

1,0% 

11,0% 

17,2% 

Index 
2005=100 

25 

100 

250 

2 750 

4 300 

Source: USA export statistics 

(86)  One interested party claimed that the injury and causation analysis of the anti-subsidy 
proceeding  should  be  made  on  different  data  than  that  made  in  the  parallel  anti-
dumping  proceeding.  It  was  argued  that  the  subsidy  findings  are  based  on  i)  own 
produced, ii) produced and blended and iii) purchased and blended biodiesel exported 
to the Community whereas the dumping findings, in particular the export sales to the 
Community, are based only on the own produced biodiesel of the sampled producers.  

(87)  This  claim  would  appear  to  suggest  that  the  anti-dumping  proceeding  should  always 
be  based  on  a  narrower  data  in  relation  to  the  anti-subsidy  proceeding.  However,  at 
provisional  stage  it  was  found  in  the  parallel  anti-dumping  proceeding  that  all  the 
exports  of  the  own  production  of  the  companies  included  in  the  sample  of  US 
producers  were  made  at  dumped  prices  in  the  Community  market.  A  similar  finding 

EN 

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was  made  in  the  present  anti-subsidy  investigation.  Thus  in  both  investigations  all 
exports made from the USA were deemed to be dumped and subsidized and were thus 
all included in the injury and causation analysis.  

(88) 

It should, however, be pointed out that, at definitive stage, one sampled US company 
was found not to be dumping and this has led to a difference between the volume of 
dumped imports and the volume of subsidized imports to be considered in the injury 
and causation analysis of the proceedings. In the anti-dumping proceeding, the overall 
volume of dumped imports from the USA has been adjusted to take into account the 
fact that the imports of one sampled exporting producer were found not to be dumped. 
This has no bearing, however, on the anti-subsidy proceeding. 

(89) 

In view of the above the claim had to be rejected. 

(90)  One  interested  party  claimed  that  the  HTS  heading  3824  90  of  the  USA  export 
statistics which  was used in the provisional Regulation to establish the imports from 
the country concerned would also cover, in addition to biodiesel, other products such 
as “fatty substances of animal or vegetable origin and mixtures thereof”. The analysis 
of the import volume from the USA was therefore deficient. The same interested party 
proposed that the trends established for the investigated US producers be used instead.  

(91) 

In this regard, it is firstly noted that the US HTS code 3824 90 4000 was used in order 
to  compute  the  import  volumes  originating  in  the  USA  and  not  the  six-digit  tariff 
heading claimed by this party. 

(92)  Moreover,  it  is  recalled  that  as  mentioned  in  recital  (170)  of  the  provisional 
Regulation, Eurostat data could not be used for the purpose of assessing the imports of 
biodiesel from the USA because until the end of 2007 there was no distinct CN code 
available  for  the  customs  classification  of  that  product.  Biodiesel  could  indeed  have 
been  classified  under  various  CN  codes  which  also  contained  import  data  for  other 
products. The reason why the USA export statistics were used was that they appeared 
to  capture  the  exports  of  the  product  concerned  under  one  tariff  code  and  that  the 
volume  of  other  products  captured  under  the  same  code  would  be  of  insignificant 
importance as far as exports to the Community are concerned. 

(93) 

In  view  of  the  limitations  to  use  Eurostat  data,  another  alternative  to  the  US  export 
statistics would have been to use the import data reported in the complaint. This data 
was  obtained  by  the  complainants  from  confidential  market  intelligence  sources  and 
therefore  recourse  to  such  information  would  have  been  subject  to  this  limitation. 
However,  for  the  sake  of  completeness  the  trends  of  import  volumes  would  have 
shown the following picture in an indexed form:  

Table 3 

Imports from 
USA 

Indexed 
2005=100 

2004 

2005 

2006 

2007 

IP 

0 

100 

1 359 

15 059 

15 394 

(94)  The  comparison  of  the  Table  3  with  Table  2  above  would  demonstrate  that  the 
Commission’s  assessment  of  the  import  volumes  of  the  product  concerned  over  the 

EN 

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analysis period was more conservative than the one that could have been alternatively 
used. Moreover, this overall picture of the import volumes of Table 3 is compiled from 
confidential  data  not  susceptible  to  disclosure  whereas  the  USA  statistics  is  publicly 
available information.  

(95)  The proposed method by the interested party would have shown the following picture 
regarding  the  trends  of  the  export  volumes  on  the  basis  of  the  information  collected 
from the investigated exporting producers :  

Table 4 

Imports from 
USA 

Indexed 
2005=100 

2004 

2005 

2006 

2007 

IP 

16 

100 

461 

6 180 

9 005 

(96)  The comparison of Table 4 with Table 2 above would demonstrate very similar trends 
between the method used by the Commission and the one proposed by this party. 

(97)  The same interested party also claimed that because the product concerned is biodiesel 
and  blends  of  biodiesel  with  a  biodiesel  content  above  20%  the  volume  of  imports 
shown  in  Table  2  above  could  not  correlate  with  the  correct  import  volume  for  the 
product concerned.  

(98) 

In  this  regard  it  is  noted  that  the  investigation  has  not  identified  any  imports  of  the 
product concerned with a biodiesel content above B20 and below B99 during the IP. 
In  other  words  the  investigation  has  not  identified  any  imports  of  the  product 
concerned  that  because  of  their  low  biodiesel  content  would  be  classified  under  a 
different US HTS code. 

(99)  On the basis of the above it is concluded that the import volume presented in the Table 
2  of  the  provisional  Regulation  represents  a  reliable,  objective  and  conservative 
estimation of the imports into the Community of the product concerned. 

(100)  One  interested  party  claimed  that  the  splash  and  dash  quantities  exported  from  the 
USA  should  have  been  distinguished  from  the  imports  of  the  product  concerned 
originating in the USA as the former cannot be treated as imports of US origin.  

(101)  In  addition  the  same  party  and  the  USG  claimed  that  contrary  to  what  was  stated  in 
recitals (179) and (182) of the provisional Regulation all exports from the USA are not 
deemed to be originating in the USA. There is no authority in the USA that makes an 
assessment  or  a  determination  with  respect  to  the  country  of  origin  of  a  particular 
product for export and it cannot be assumed that all biodiesel leaving the territory of 
the USA is of US origin.  

(102)  The  same  party  also  stated  that  the  origin  regulations  established  by  the  US  Census 
Bureau regarding the determination of the origin of the exported goods are not widely 
known to the biodiesel industry and therefore the exporters of biodiesel when filling 
out the ‘Shippers Export Declaration’ (SED) normally indicate that the goods exported 
are of domestic origin.  

EN 

21 

   EN 

 
(103)  It  further  reiterated  its  claim  made  at  provisional  stage  that  volumes  imported  in  the 
Community under the splash and dash pattern would represent more than 40% of the 
product  concerned  exported  from  the  USA.  In  support  of  its  claim  it  used  the  US 
import  and  export  data  of  the  HTS  codes  3824  90  4020  and  38  24  90  4000,  and 
practically claimed that all imports of biodiesel in the USA were re-exported under the 
splash and dash pattern to the Community.  

(104)  On the above it is noted that the clarification requested by the US authorities regarding 
the fact that no US authority makes an assessment or determination of the origin of a 
particular product for export can be accepted.  

(105)  The claim that splash and dash would represent at least 40% of the US exports to the 
Community  was  based  on  the  assumption  that  all  biodiesel  imported  in  the  USA 
would ultimately be re-exported to the Community under the splash and dash pattern 
without any volume being consumed in the USA or further being blended in the USA 
before exportation.  

(106)  However, the data presented by this party showed that in the years 2004 to 2006 the 
imports  exceeded  by  far  the  exports  which  would  suggest  that  there  is  a  domestic 
demand for biodiesel in the USA from other countries. Moreover, this assumption is 
rather simplistic as it does not take into account the quantities of biodiesel blended in 
the USA and exported to the Community in which i) the characteristics of the blends 
are  different  from  those  of  the  input  materials  which  would  confer  US  origin  to  the 
whole  blended  product  or  ii)  blends  in  which  the  proportion  of  US  origin  biodiesel 
being  the  dominant  one  would  confer  US  origin  to  the  whole  blended  product.  It  is 
recalled  in  this  respect  that,  as  mentioned  in  recital  (180)  of  the  provisional 
Regulation,  the  US  companies  investigated  declared  that  it  was  not  possible  to 
differentiate  in  the  quantities  exported  to  the  Community  or  sold  on  the  domestic 
market between the quantities own produced or sourced in the USA or imported. It is 
also  noted  that  the  origin  would  appear  to  have  correctly  been  declared  by  the  US 
companies concerned as in all of the cases further blending of non-US origin biodiesel 
was taking place in the USA. Indeed, in most of the cases the investigated exporting 
producers are very large companies or groups of companies with related companies in 
the  Community  for  which  it  is  difficult  to  accept  that  they  were  not  aware  of  the 
existing US and Community rules regarding the origin determination. 

(107)  On  the  basis  of  all  the  above  it  is  concluded  that  there  are  no  grounds  to  clearly 
identify the imports made in the Community under the splash and dash pattern for the 
period considered. It is also considered that there are no grounds to treat these exports, 
if any, as non-US origin imports.  

5.3. 

Prices of the subsidised imports and price undercutting 

5.3.1.  Unit selling price 

(108)  The table below shows the unit selling price of all imports into the Community market 
originating  in  the  USA  during  the  period  considered  as  ascertained  in  recitals  (183) 
and (184) of the provisional Regulation. 

Table 5 

EN 

22 

   EN 

 
All imports from USA 

2004 

2005 

2006 

2007  

IP 

Prices in EUR/tonne 

Index2005=100 

463 

81 

575 

100 

600 

104 

596 

104 

616 

107 

Source: US export statistics and questionnaire replies of the sampled US exporters 

5.3.2.  Price undercutting 

(109)  For the purpose of analysing price undercutting, the weighted average sales prices of 
the sampled Community producers charged to unrelated customers on the Community 
market, adjusted to an ex-works level, were compared to the corresponding weighted 
average prices of the dumped imports from the USA, established on a CIF basis for the 
sampled  exporting  producers  in  the  USA  which  were  found  to  be  dumping  into  the 
Community market. An adjustment for the customs duties, post-importation costs and 
for the differences in feedstock used for the production of biodiesel was applied where 
appropriate as described in recital (186) of the provisional Regulation. 

(110)  Certain  exporting  producers  claimed  that  the  adjustment  for  the  differences  in 
feedstock  was  understated  as  it  did  not  reflect  correctly  the  market  value  of  the 
differences. They further claimed that the differences should be obtained on the basis 
of  the  prices  for  the  different  types  of  biodiesel  in  the  Community  market  and 
quantified  this  claim  by  reference  to  the  price  quotations,  customs  cleared  Antwerp 
based, published by a market analyst.  

(111)  In  this  regard  it  is  noted  that  the  adjustment  was  based  on  the  overall,  verified  data 
collected  from  the  sampled  exporting  producers  for  their  operations  in  the  USA  and 
was,  therefore,  based  on  the  findings  of  the  investigation  which  is  the  most  reliable 
source of information. Moreover, the price quotations at Community level would have 
been an inappropriate basis for this adjustment as these price levels would have been 
influenced  by  the  price  levels  of  the  subsidised  imports  originating  in  the  USA.  On 
this basis the claim was rejected. 

(112)  The  same  exporting  producers  claimed  that  the  adjustment  for  feedstock  differences 
should only be applied to the sales of the sampled exporting producers and not to the 
sales of the sampled Community producers as the sales of the latter consist of blends 
compatible with the Community standards.  

(113)  This claim was found to be irrelevant as the purpose of the adjustment was to address 
the differences in feedstock and not any differences in meeting the different standards 
applicable at Community level. The claim was, therefore rejected.  

(114)  The  complainant  contested  the  appropriateness  of  this  adjustment  by  claiming  that 
both  Community  producers  and  US  exporters  use  a  variety  of  feedstock  and  both 
produce  a  variety  of  blends  which  are  provided  on  both  markets  and  are,  therefore, 
operating with the same range possibilities when it comes to the raw material choice.  

(115)  In this regard it is noted that, whilst it is true that both Community producers and US 
exporting  producers  use  a  variety  of  blends  based  on  different  feedstock,  the 
repartition  of  feedstock  in  the  blends  may  differ  significantly  from  producer  to 

EN 

23 

   EN 

 
 
producer  and  even  from  customer  to  customer  of  the  same  producer.  Indeed,  the 
investigation  has  shown  that  a  precise  matching  in  the  blends  sold  by  the  sampled 
Community  producers  and  those  sold  by  sampled  exporting  producers  on  the 
Community  market  was  met  in  very  few  occasions  Therefore,  in  order  to  allow  for 
undercutting calculations to take into account the different product types of biodiesel, 
it  was  considered  indeed  necessary  to  make  the  adjustment  for  differences  in 
feedstock. Therefore, this claim had to be rejected. 

(116)  Certain  exporting  producers  claimed  that  the  prices  used  for  the  injury  margin 
calculations  were  the  CIF  Community  frontier  prices  rather  than  the  resale  prices  to 
the first unrelated customer. They claimed that these calculations have to be corrected 
in  order  to  take  into  account  the  value  and  quantities  of  sales  to  the  first  unrelated 
customer. 

(117)  This  claim  was  found  to  be  relevant  for  two  exporting  producers  and  the  injury 

calculations were corrected accordingly. 

(118)  On the basis of the above, the average price undercutting margin in the IP, expressed 
as  a  percentage  of  the  Community  industry's  weighted  average  ex-work  prices,  was 
found  to  range  from  18,9%  to  31,9%,  instead  of  a  range  from  18,9%  to  33,0%  at 
provisional stage. 

5.4. 

Economic situation of the Community industry 

(119)  As mentioned in recitals (209) to (212) of the provisional Regulation, it was found that 
the Community industry suffered material injury within the meaning of Article 8(5) of 
the basic Regulation.  

(120)  Indeed,  the  provisional  analysis  showed  that  the  performance  of  the  Community 
industry improved as regards some volume indicators, but that most of the indicators 
related to the financial situation of the Community industry significantly deteriorated 
during  the  period  considered.  Notwithstanding  the  Community  industry's  ability  to 
raise capital for investments, return on investments declined dramatically during the IP 
and profitability declined significantly over the period considered.  

(121)  One interested party claimed that the analysis made in recital (195) of the provisional 
Regulation  regarding  the  growth  of  the  Community  industry  was  incorrect.  In 
particular, this party argued that the provisional Regulation suggested that the strong 
increase in demand for biodiesel in the Community market was supposed to lead to a 
comparable increase in the market shares of the Community industry, while there is no 
direct correlation between the increase in demand and market share.  

(122)  The  same  party  further  argued  that  the  injury  factors  mentioned  in  the  same  recital 
(195)  of  the  provisional  Regulation,  namely  production,  utilisation  of  production 
capacity,  productivity,  sales,  investment  policy,  return  on  investments,  cannot  be 
considered as severely affected.  

(123)  The  argument  regarding  the  de-correlation  between  demand  and  market  share  is 
accepted. However, it remains that between 2006 and the IP, the market share of the 
sampled Community producers was multiplied by 1,2 while during the same time, the 
market share of subsidised imports was multiplied by around 17. This comparatively 

EN 

24 

   EN 

 
strong increase in market share for US imports is the result of much lower sales prices 
for these US imports as shown in table 5 and recital (118) above. 

(124)  Regarding  the  claim  about  the  global  assessment  of  all  injury  factors,  it  is 
acknowledged  that  not  all  these  factors  were  deteriorating  during  the  period 
considered.  However,  it  is  stated  that  factors  relating  to  financial  situation  of  the 
Community  industry  were  indeed  severely  affected,  namely  the  profitability  and  the 
return on investment and to a lesser extent productivity was affected. This stems from 
the fact that the Community industry had to adapt to the competition of price-setting 
subsidised  US  imports,  and  chose  to  maintain  their  presence  on  the  market  to  the 
detriment  of  their  profitability,  rather  than  preserving  their  profitability  but  losing 
market shares. 

(125)  Certain  interested  parties  and  the  USG  claimed  that  the  levels  of  profitability  and 
return on investment for the sampled EU producers are still good in 2007 and during 
the  IP,  in  absolute  value,  in  spite  of  the  strong  decrease  compared  to  the  previous 
years.  They  argue  that  the  levels  of  profitability  and  return  on  investment  achieved 
from  2004  to  2006  were  not  sustainable  and  that  the  EU  biodiesel  industry,  as  all 
nascent  industries,  experienced  a  normal  "boom  and  bust"  phenomenon  during  the 
period considered. 

(126)  In this regard, it is recalled that some US sampled companies achieved much higher 
profitability, exceeding 30%, in the similar context of a developing market during the 
period  considered.  It  is  also  stated  that  the  decrease  of  profitability  and  return  on 
investment experienced by the Community industry was very brutal since it occurred 
from 2006 to 2007, and coincides exactly with the surge of U.S. imports of biodiesel.  

(127)  Several Community producers claimed that the situation of non-sampled Community 
companies should be fully taken into account in the injury assessment, in particular in 
the  light  of  the  numerous  cases  of  downsizing,  closures  or  postponement  of  new 
projects that were identified among these companies during the period considered. 

(128)  On  the  other  hand,  one  interested  party  claimed  that  the  reference  made  in  the 
provisional  Regulation  to  producers  in  the  Community  not  included  in  the  sample  is 
irrelevant, as the unverified data from non-sampled producers cannot be used for the 
demonstration of injury. This party further insists on public data showing that some of 
these non-sampled producers are profitable. 

(129)  Regarding  the  two  claims  above,  it  is  recalled  that  the  provisional  Regulation  in  its 
recitals  (205)  to  (208)  refers  to  the  situation  of  the  non-sampled  producers  in  the 
Community  as  a  supplementary  indication  of  injury,  without  impacting  the 
calculations of the injury indicators and injury margin for which verified information 
was actually used. Therefore the claim of this party was rejected. On the other hand, in 
the  absence  of  available  verified  statistics  or  individual  information  regarding  the 
situation  of  all  non-sampled  EU  producers,  it  is  not  possible  to  make  any  accurate 
determination  for  the  Community  producers  as  a  whole  as  suggested  by  the 
Community producers. This claim was therefore also rejected. 

(130)  In  the  absence  of  any  other  comments  on  the  provisional  findings  concerning  the 
economic  situation  of  the  Community  industry,  recitals  (188)  to  (194)  and  (196)  to 
(208) of the provisional Regulation are hereby confirmed. 

EN 

25 

   EN 

 
(131)  The  conclusion  that  the  Community  industry  suffered  material  injury,  as  set  out  in 

recitals (209) to (212) of the provisional Regulation, is also confirmed.  

6. 

CAUSATION 

6.1. 

Effect of the subsidised imports  

(132)  It is recalled that the subsidised import volumes from the USA increased significantly 
during  the  period  analysed.  There  was  also  a  clear  coincidence  in  time  between  the 
surge  of  subsidised  imports  and  the  deterioration  of  the  economic  situation  of  the 
Community  industry. That industry was not able to set its prices in line with  market 
conditions  and  the  cost  increases,  as  its  prices  were  undercut  during  the  IP  by  the 
subsidised imports. 

(133)  It is therefore confirmed that the surge of low-priced subsidised imports from the USA 
had  a  considerable  negative  impact  on  the  economic  situation  of  the  Community 
industry during the IP. 

6.2. 

Effect of other factors 

6.2.1. 

Imports from other third countries  

(134)  In the absence of any comments that would justify a change in the provisional findings 
it  is  confirmed  that  imports  from  other  third  countries  cannot  have  made  more  than 
negligible contribution to the injury suffered by the Community industry. 

6.2.2.  Development of demand 

(135)  One interested party claimed that the contraction in demand between 2007 and the IP 
even being negligible (0,5%) would nevertheless have caused injury to the Community 
industry  by  alleging  that  an  hypothetical  increase  of  10%  in  demand  would  have 
yielded  an  additional  volume  of  sales  of  205  733  tonnes  if  the  Community  industry 
would have maintained the same market share of 29,8% that was recorded during the 
IP. 

(136)  In this respect it is noted that the claims made by this party were based on broad and 
unsubstantiated assumptions. Moreover, in view of the fact that between 2007 and the 
IP  the  market  share  of  the  Community  industry  increased  by  2,8  percentage  points, 
would  indeed  support  the  conclusion  reached  in  recital  (223)  of  the  provisional 
Regulation that injury suffered by the Community industry cannot be attributed to this 
slight  contraction  in  demand  between  2007  and  the  IP.  Therefore,  in  the  absence  of 
any  other  comments  concerning  the  development  of  demand  on  the  Community 
market recital (223) of the provisional Regulation is confirmed. 

6.2.3.  Public Policy Decisions 

(137)  One  interested  party  reiterated  its  claim  that  the  reintroduction  of  energy  tax  in 
Germany  would  have  negatively  influenced  the  economic  situation  of  Community 
producers  supplying  that  market  as  because  of  these  measures  the  biodiesel  demand 
for  B100  representing  at  least  1,5  million  tonnes  would  have  collapsed.  It  further 
claimed,  in  response  to  the  findings  of  the  investigation  set  in  recital  (225)  of  the 
provisional Regulation, that even if the introduction of a blending requirement of 4,4% 

EN 

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for  the  diesel  placed  in  the  German  market  for  transport  purposes  (B5)  would  have 
compensated  the  alleged  sales  losses  of  B100,  the  prices  levels  of  B100  would  be 
different from those of biodiesel intended for the B5 blends. It alleged that B100 was 
produced  only  from  the  more  expensive  rapeseed  feedstock,  whereas  biodiesel  B5 
from a variety of feedstock, thus having a negative influence on the average price of 
the Community producers.  

(138)  In  this  respect  it  is  recalled  that,  contrary  to  the  allegations  made  by  this  party,  the 
investigation has shown that the sales volumes of the sampled Community producers 
supplying  the  German  market  rose  by  68%  between  2006  and  the  IP,  which  would 
indeed  confirm  the  provisional  finding  that  any  losses  on  B100  sales  were 
compensated  by  the  mandatory  blending  requirement.  It  is  further  noted  that  the 
introduction of the Euro 0,09 per litre of biodiesel as of 1 August 2006 did not lead to 
the collapse of the market as alleged by this party, but indeed B100 sales were reduced 
significantly in the last quarter of the IP when this tax was further increased to Euro 
0,15  per  litre  as  of  1  January  2008.  Regarding  the  effect  on  prices,  the  allegations 
made  by  this  party  were  unfounded  as  the  biodiesel  used  for  both  types  of  products 
had to conform with the same standards which means that in both biodiesel fuels the 
same  mix  of  feedstock  could  be  used  which  means  that  there  is  no  proven  price 
differentiation between the two types of biodiesel. On the basis of the above the claim 
was rejected.  

(139)  In  the  absence  of  any  other  comments  concerning  the  public  policy  decisions  recital 

(226) of the provisional Regulation is confirmed.  

6.2.4. 

Idle production capacity of Community producers  

(140)  One  interested  party,  whilst  accepting  that  capacity  utilisation  rates  remained  fairly 
high  for  the  sampled  Community  producers,  claimed  that  the  overcapacity  of  the 
sampled Community producers would still be a cause of injury in view of the fact that 
it would result in higher fixed costs that would have a negative effect on profitability. 
It further claimed that the increase in the net asset value of the said producers would 
have  resulted  in  fixed  cost  increases  as  depreciation  and  financial  costs  would  have 
been higher.  

(141)  In this regard it is recalled that from detailed analysis of the repartition of variable and 
fixed costs in the cost structure of the Community industry it was established that the 
share of fixed costs represented only 6% of overall costs (recital 228 of the provisional 
Regulation).  In  addition,  it  should  be  noted  that  this  analysis  showed  insignificant 
fluctuations  of  this  percentage  over  the  period  analysed.  With  regard  to  the  claim 
concerning the effect on profitability caused by the increase in the net asset value, it 
should  be  noted  that  the  increase  in  costs  in  absolute  terms,  does  not  automatically 
lead to an increase in the unit production cost as the latter depends on the volume of 
output  which  as  shown  in  Table  4  of  the  provisional  Regulation  increased  steadily 
over  the  period  analysed.  Therefore  higher  fixed  costs  in  absolute  terms  were 
attributed  to  higher  output  volume  resulting  in  the  above  mentioned  repartition  of 
fixed costs in relation to overall costs. On this basis the claims made by this interested 
party had to be rejected.  

(142)  The  same  party  alleged  that  overall  overcapacity  of  the  Community  producers  has  a 
direct  impact  on  prices  as  there  would  be  a  fierce  battle  among  producers  to  gain 

EN 

27 

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contracts up to marginal costs and therefore, producers with high utilisation rates must 
have been the most aggressive on their sales to undercut the price of their competitors. 
In support of its claim it submitted an announcement of one sampled company to its 
financial statements of year 2007. 

(143)  The  allegations,  however,  of  this  party  were  not  supported  by  any  evidence  as  no 
reference  to  the  alleged  battle  of  prices  due  to  overcapacity  was  indicated  in  this 
statement. The statement rather referred to the increase by the German government of 
the energy tax on B100 biodiesel as of 1 January 2008 which stimulated competition 
in the B5 market of biodiesel. On the basis of the above the claim had to be rejected.  

(144)  In  the  absence  of  any  other  comments  concerning  the  idle  capacity  of  Community 
producers, recitals (227) to (230) of the provisional Regulation are confirmed.  

6.2.5. 

Increased demand for feedstock and increasing prices 

(145)  One  interested  party  and  the  US  government  claimed  that  none  of  the  arguments  in 
recitals (231) to (235) of the provisional Regulation addresses the issue that the prices 
of soybean oil, palm oil and canola oil in the USA at all times since 2004 remained 
significantly  below  the  prices  for  rapeseed  in  the  Community  which  yields  a 
significant competitive advantage to the biodiesel imported from the USA.  

(146)  It is recalled that the investigation has to establish whether the subsidised imports (in 
terms of prices and volume) have caused material injury to the Community industry or 
whether such material injury was due to other factors. In this respect, Article 8(6) of 
the  basic  Regulation  states  that  it  is  necessary  to  show  that  the  price  level  of  the 
subsidised  imports  cause  injury.  It  therefore  merely  refers  to  a  difference  between 
price levels, and there is thus no requirement to analyse the factors affecting the level 
of those prices.  

(147)  In practice, the effect of the subsidised imports on the Community industry's prices is 
essentially  examined  by  establishing  price  undercutting,  price  depression  and  price 
suppression.  For  this  purpose,  the  subsidised  export  prices  and  the  Community 
industry's sales prices are compared, and export prices used for the injury calculations 
may  need  in  certain  cases  to  be  adjusted  in  order  to  have  a  comparable  basis. 
Consequently,  the  use  of  adjustments  in  this  context  only  ensures  that  the  price 
difference is established on a comparable basis. From this, it becomes obvious that the 
prices of raw materials in the exporting country cannot in principle be another factor 
of injury. 

(148)  The  above  is  also  confirmed  by  the  wording  of  Article  8(7)  of  the  basic  Regulation, 
which  refers  to  known  factors  other  than  subsidised  imports.  The  list  of  the  other 
known factors in this Article does not make reference to any factor affecting the price 
level of the subsidised imports. To summarise, if the imports are subsidised, and even 
if  they  benefited  from  a  favourable  development  of  raw  material  prices,  it  is  not 
considered that such development could be another factor causing injury.  

(149)  Thus,  the  analysis  of  the  factors  affecting  the  level  of  the  prices  of  the  subsidised 
imports, such as the alleged competitive advantage due to lower raw material prices, 
cannot be conclusive and such analysis would go beyond the requirements of the basic 
Regulation.  

EN 

28 

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(150)  In  any  event,  and  without  prejudice  to  the  above,  it  has  to  be  recalled that  a  general 
increase in prices of agricultural products worldwide took place during the IP and that 
the increase in soybean oil (the main feedstock used by the producers in the country 
concerned)  was  more  pronounced  than  the  increase  of  rapeseed  oil  over  the  same 
period. However, these increases in costs in the USA were not reflected in the prices 
of the  subsidised  imports in the  Community  market which  significantly undercut the 
prices of the Community industry.  

(151)  In light of the above, the claim made by theses parties had to be rejected. 

(152)  In the absence of any other comments concerning the increased demand for feedstock 
and  increasing  prices  recitals  (231)  to  (238)  of  the  provisional  Regulation  are 
confirmed.  

6.2.6.  Price development of mineral diesel 

(153)  One interested party reiterated its claim (see recital 236 of the provisional Regulation) 
and further argued that the prices of mineral diesel would set a cap beyond which the 
producers  of  biodiesel  would  not  be  able  to  increase  their  prices  in  line  with  the 
increases in feedstock. 

(154)  In this regard it is noted that all of the Community producers were supplying markets 
where  mandatory  blending  targets  exist.  In  addition,  biodiesel  was  subject  to 
detaxation in most of the Member States which means that its price is comparable with 
the price of mineral diesel increased with a factor to take into account the energy tax 
that the latter is subject to. This means that while one can accept a certain correlation 
with  the  oil  prices,  the  investigation  has  established  that  for  the  above  reasons 
biodiesel can be indeed sold at higher prices than mineral diesel. Moreover, this party 
did  not  submit  any  convincing  evidence  showing  that  the  prices  of  mineral  diesel 
which were at very high levels in the second half of the IP exerted price pressure on 
the prices of biodiesel of the Community producers during the IP.  

(155)  In  the  absence  of  any  other  comments  concerning  the  price  development  of  mineral 
diesel it is concluded that this factor has not caused injury to the Community industry.  

6.2.7. 

Importance of the location of the biodiesel plants in the Community 

(156)  In  the  absence  of  any  other  comments  concerning  the  location  of  biodiesel  plants  in 

the Community recitals (239) to (241) of the provisional Regulation are confirmed.  

6.2.8.  Producers related to the US exporters 

(157)  In the absence of any other comments concerning the impact of imports from the USA 
by  the  producers  related  to  the  US  exporters,  recital  (242)  of  the  provisional 
Regulation is confirmed.  

6.2.9.  Conclusion on causation  

(158)  In the light of the foregoing and in the absence of any other comments recitals (243) to 

(245) of the provisional Regulation are confirmed.  

7. 

COMMUNITY INTEREST 

EN 

29 

   EN 

 
7.1. 

Community industry 

(159)  Subsequent to the provisional disclosure the Community industry producers endorsed 
the  findings  of  the  Commission  and  confirmed  that  the  measures  would  be  in  their 
interest.  

(160)  One  interested  party  claimed  that  the  measures  would  not  be  in  the  interest  of  the 
Community  industry  as  the  measures  would  result  in  a  shift  of  trade  flows,  i.e.  a 
switch to imports from countries not covered by measures, because i) the Community 
market operators would continue to require cheaper biodiesel based on soybean oil and 
palm oil in order to complement it with the more expensive rapeseed biodiesel which 
is produced by the Community industry and ii) because the rapeseed oil biodiesel will 
not be sufficient to cover the demand.  

(161)  In  this  regard  it  is  noted  that  whilst  the  main  feedstock  used  by  the  Community 
industry producers is rapeseed, the same producers did not rely only on this feedstock 
for  their  biodiesel  production  but  used  also  other  feedstock  such  as  soybean  oil  and 
palm oil. However, in view of the fact that very often the price of other feedstock was 
higher than the price of the subsidised imports of biodiesel based on such feedstock, 
the  Community  industry  producers  were  deprived  from  the  possibility  of  using 
soybean oil and palm oil on a larger scale. It is therefore expected that the imposition 
of  measures  would  also  restore  normal  market  conditions  in this regard allowing the 
Community  industry  producers  to  adapt  more  efficiently  their  production  to  the 
different types of biodiesel needed on the Community market. On this basis the claim 
was rejected. 

(162)  In  the  absence  of  any  other  comments  concerning  the  interest  of  the  Community 

industry, recitals (247) to (249) of the provisional Regulation are confirmed.  

7.2. 

Unrelated importers/traders in the Community  

(163)  In  the  absence  of  any  reaction  from  importers  after  the  imposition  of  provisional 
measures  it  is  concluded  that  the  effect  of  the  measures  will  most  likely  not  have  a 
material impact on importers/traders. 

7.3. 

Users in the Community 

(164)  In the absence of any reaction from users after the imposition of provisional measures, 
it  is  concluded  that  the  countervailing  duties  will  most  likely  not  have  a  material 
impact on users. 

7.4. 

Suppliers of raw materials in the Community  

(165)  In  the  absence  of  any  reaction  from  suppliers  after  the  imposition  of  provisional 
measures, recitals (256) to (258) of the provisional Regulation are confirmed. 

7.5. 

Other interests  

(166)  Subsequent  to  the  provisional  disclosure  one  interested  party  claimed  that  the 
automobile manufacturers which have invested in producing vehicles adjusted for use 
with  biodiesel  may  be  unable  to  bring  their  investments  to  fruition  by  selling  such 

EN 

30 

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vehicles should the prices of biodiesel in the Community because of the measures rise 
to levels which are not competitive with those of mineral diesel.  

(167)  In this regard it is noted that the possibility alleged by this party could have happened 
even  in  the  absence  of  measures,  i.e.  prices  of  mineral  diesel  (which  depend  on  the 
crude  oil  prices)  to  drop  at  levels  making  them  more  competitive  than  biodiesel. 
Therefore,  it  would  appear  unreasonable  to  suggest  that  the  automobile  industry  has 
made  investments  without  taking  this  parameter  into  account.  Therefore,  this  claim 
was rejected.  

(168)  Subsequent to the provisional disclosure, one association of EU farmers expressed its 
support  and  indicated  that  the  imports  of  US  biodiesel  have  deprived  EU  oilseed 
producers of an outlet of around 6 millions tonnes of oilseeds, or approximately 11% 
of EU oilseed production in 2007 and 2008, and led to a 90 Euro per tonne drop in the 
potential  value  of  rape  seed  used  for  non-food  purposes.  These  late  comments, 
however, could not be verified. 

7.6. 

Competition and trade distorting effects 

(169)  One  interested  party  reiterated  its  comments  regarding  the  incoherence  of  the 
countervailing  measures  with  the  European  Union  policy  to  promote  the  use  of 
biofuels.  It  added  that  the  European  Union  cannot  depend  only  on  rapeseed-based 
biodiesel produced in the Community to develop its biodiesel market.  

(170)  While this comment has been addressed in section 7.6 of the provisional Regulation, 
for the issue of rapeseed biodiesel brought up by this party reference is also made to 
recital (161) above. 

(171)  In  the  absence  of  any  other  comments  concerning  competition  and  trade  distorting 

effects, recitals (259) to (261) of the provisional Regulation are confirmed.  

7.7. 

Conclusion on Community interest 

(172)  Based  on  the  above,  it  is  concluded  that  there  are  no  compelling  reasons  against  the 

imposition of countervailing duties in the present case. 

8. 

DEFINITIVE COUNTERVAILING MEASURES 

8.1. 

Injury elimination level 

(173)  One  company  claimed  that,  in  regard  to  setting  its  injury  margin  at  the  level  of  the 
highest injury margin found for the sampled companies (see recitals (268) to (270) of 
the provisional Regulation), it offered to supply the information necessary to allow for 
its  own  margin  to  be  calculated.  The  company  furthermore  was  prepared  to  allow  a 
visit  to  the  premises  of  the  company's  subsidiary.  The  company  submitted  that  this 
invitation is still open.  

(174)  Having  received  this  company's  reply  to  the  questionnaire  response  following  the 
initiation  of  the  proceeding,  it  was  noted  that  there  were  certain  deficiencies  in 
information regarding its export sales to the Community and the resales of its related 
importer  in  the  Community.  The  company  was  asked  to  provide  the  information 
concerned  within  a  specified  deadline  but  the  company  did  not  reply  to  the  request. 

EN 

31 

   EN 

 
The  company  was  then  informed,  as  stated  in  recital  (268)  of  the  provisional 
Regulation,  that  if  the  requested  information  was  not  provided,  in  accordance  with 
Article  28  of  the  basic  Regulation,  the  deficient  information  provided  in  its 
questionnaire  response  may  be  disregarded.  The  company  was  informed  about  the 
consequences  of  its  partial  co-operation  and  given  an  opportunity  to  comment.  The 
company replied almost two weeks after the prescribed deadline by stating, inter alia, 
that  the  company  "will  submit  as  a  matter  of  urgency  the  information  requested". 
However, the requested information was never provided by the company.  

(175)  In light of the above, it is confirmed that the injury elimination level for this company 
be set at the level of the highest injury margin found for the sampled companies. 

(176)  Several interested parties and the USG contested the provisional determination that a 
profit of 15% would be the profit margin that could be reasonably be achieved by an 
industry of this type under normal conditions of competition.  

(177)  One interested party claimed that the profit margin for the Community industry used 
for  the  determination  of  the  injury  elimination  level  should  be  set  at  the  level  of  the 
profit  realised  by  the  Community  industry  during  the  IP,  namely  5,7%,  because  this 
profit  margin  would  be  in  the  range  of  profits  realised  for  commodities  such  as 
biodiesel.  In  support  of  this  claim  it  made  reference  to  profits  realised  by  US 
producers of ethanol and vegetable oils and by petroleum refineries.  

(178)  It  is  noted  that  the  injury  elimination  level  has  to  be  based  on  an  evaluation  of  the 
profit that the industry can reasonably expect to achieve in the absence of subsidised 
imports  on  the  sales  of  the  like  product  on  the  Community  market.  For  a  given 
investigation,  the  profit  realised  in  the  beginning  of  the  period  considered  may  be 
reasonably  considered  as  the  profit  realised  in  the  absence  of  subsidised  imports. 
Indeed, in this specific case in the early years of the period considered (2004 to 2006) 
the imports from the USA never exceeded a market share of 1% and it can therefore 
reasonably  be  concluded  that  these  periods  were  characterised  by  the  absence  of 
subsidised  imports.  Therefore,  the  average  profit  achieved  in  these  periods  by  the 
Community  industry  was  considered  as  a  reasonable  basis  for  determination  of  the 
injury elimination level also taking into account the needs to guarantee the production 
investment of this newly established industry. Moreover, and in relation to the claim 
made by the interested party, the investigation has shown that the profits realised by 
the major USA exporting producers for their domestic biodiesel operations were well 
above the profit used for the determination of the injury elimination level. On the basis 
of the above the claim had to be rejected. 

(179)  Certain claims from US companies regarding the conversion of the ad-valorem duties 
into  fixed  amount  duties,  described  in  recital  (185)  below,  revealed  that  the  ad-
valorem underselling amount was calculated as the ratio between the total underselling 
and  the  adjusted  CIF  price  (see  adjustment  mentioned  in  recital  (109)),  whereas  the 
non-adjusted  CIF  price  should  have  been  used  as  it  was  done  to  calculate  the  ad-
valorem  dumping  margin.  Therefore  all  ad-valorem  injury  elimination  levels  were 
recalculated for all the sampled US companies.  

(180)  In  the  absence  of  other  comments  following  the  provisional  disclosure,  the  same 
methodology  as  mentioned  in  recitals  (266)  and  (267)  of  the  provisional  Regulation 

EN 

32 

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has  been  used  to  obtain  the  non-injurious  prices.  The  injury  elimination  level  was 
calculated as a percentage to the total non adjusted CIF import value. 

8.2. 

Form and level of the duties 

(181)  In  the  light  of  the  foregoing  and  in  accordance  with  Article  15(1)  of  the  basic 
Regulation, a definitive countervailing duty should be imposed at a level sufficient to 
eliminate  the  injury  caused  by  the  subsidised  imports  without  exceeding  the  subsidy 
margin found.  

(182)  In  view  of  the  comments  received  by  certain  interested  parties  following  the 
provisional disclosure and in view of the revisions described in this Regulation, certain 
margins have been amended. 

(183)  On  the  basis  of  the  above,  countervailing  duty  rates  have  been  established  by 
comparing the injury elimination margins and the subsidy margins. Consequently, the 
proposed countervailing duties are as follows: 

Company 

Archer 
Daniels 
Midland 
Company 

Injury 
margin 

Subsidy margin 

Countervailing 
duty rate 

54,5% 

35,1% 

35,1% 

Cargill Inc. 

64,4% 

34,5% 

34,5% 

Green Earth 
Fuels of 
Houston LLC 

Imperium 
Renewables 
Inc. 

Peter Cremer 
North 
America LP 

Vinmar 
Overseas 
Limited 

World Energy 
Alternatives 
LLC 

Co-operating 
non sampled 
companies 

51,3% 

39,0% 

39,0% 

41,6% 

29,1% 

29,1% 

77,2% 

41,0% 

41,0% 

76,4% 

41,1% 

41,1% 

46,1% 

37,6% 

37,6% 

56,2% 

36,0% 

36,0% 

EN 

33 

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(184)  In  view  of  the  fact  that  the  countervailing  duty  will  apply  to  blends  containing  by 
weight  more  than  20%  of  biodiesel,  in  proportion  to  their  biodiesel  content,  it  is 
considered  appropriate  for  the  effective  implementation  of  the  measures  by  the 
customs authorities of the Member States to determine the duties as fixed amounts on 
the basis of biodiesel content. 

(185)  Certain parties  contested  the methodology used to convert the ad valorem duty rates 
into duties in the form of fixed amounts. They claimed that the CIF values that should 
had  been  used  for  the  conversion  of  an  ad  valorem  duty  into  a  fixed  amount  should 
had  been  the  actual  CIF  values  and  not  the  ones  adjusted  to  take  into  account  the 
feedstock  differences  described  in  recitals  (185)  and  (186)  of  the  provisional 
Regulation.  

(186)  This claim was examined and it was indeed found that the adjusted CIF values were 
used for the conversion of the ad valorem duties into fixed amount duties. However, it 
was  also  found  that  the  same  values  were  used  as  the  basis  for  expressing  the 
underselling  amount  as  an  ad  valorem  duty.  Therefore,  a  first  correction  had  to  be 
made  in  expressing  the  underselling  amount  as  a  percentage  of  the  total  actual  CIF 
import  value.  On  this  basis  the  injury  margins  have  been  revised  accordingly.  The 
subsequent calculation of the fixed amount duty rates, however, showed no difference 
from  the  duty  rates  appearing  in  Article  1(2)  of  the  provisional  Regulation  since  the 
higher  ad  valorem  duty  was  exactly  offset  by  the  decrease  of  the  CIF  prices  (from 
adjusted to actual) used for converting expressing the former into fixed duties.  

(187)  The  individual  company  countervailing  duty  rates  specified  in  this  Regulation  were 
established  on  the  basis  of  the  findings  of  the  present  investigation.  Therefore,  they 
reflect  the  situation  found  during  that  investigation  with  respect  to  these  companies. 
These  duty  rates  (as  opposed  to  the  country-wide  duty  applicable  to  "all  other 
companies") are thus exclusively applicable to imports of products originating in the 
country  concerned  and  produced  by  the  companies  and  thus  by  the  specific  legal 
entities mentioned. Imported products produced by any other company not specifically 
mentioned in the operative part of this Regulation with its name and address, including 
entities  related  to  those  specifically  mentioned,  cannot  benefit  from  these  rates  and 
shall be subject to the duty rate applicable to "all other companies". 

(188)  Any  claim  requesting  the  application  of  an  individual  company  countervailing  duty 
rate (e.g. following a change in the name of the entity or following the setting up of 
new production or sales entities) should be addressed to the Commission11 forthwith 
with all relevant information, in particular any modification in the company's activities 
linked  to  production,  domestic  and  export  sales  associated  with,  for  example,  that 
name  change  or  that  change  in  the  production  and  sales  entities.  If  appropriate,  the 
Regulation  will  then  be  amended  accordingly  by  updating  the  list  of  companies 
benefiting from individual duty rates. 

(189)  All  parties  were  informed  of  the  essential  facts  and  considerations  on  the  basis  of 
which it was intended to recommend the imposition of definitive countervailing duties. 
They  were  also  granted  a  period  within  which  they  could  make  representations 

11 

European Commission, Directorate-General for Trade, Directorate H, Office N105 04/092, 1049 Brussels, Belgium  

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34 

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subsequent  to  this  disclosure.  The  comments  submitted  by  the  parties  were  duly 
considered, and, where appropriate, the findings have been modified accordingly.  

8.3. 

Undertakings 

(190)  Certain US co-operating exporting producers offered price undertakings in accordance 
with Article 8(1) of the basic Regulation. It is noted that in view of significant price 
variations of the raw material, the product is not considered suitable for a fixed price 
undertaking. In this context, the companies proposed that the minimum import prices 
(MIPs)  are  indexed  regularly  in  relation  to  the  fluctuations  of  the  prices  of  rapeseed 
oil. Moreover, they offered MIPs for three types to take account of the product variety 
upon importation (biodiesel obtained from soybean, palm or canola oil) on the basis of 
the feedstock coefficients established during the IP. 

(191)  In  relation  to  the  offers  of  the  co-operating  exporting  producers  it  is  noted  that  the 
basis to establish an indexed MIP was on average between 7-8% lower than the non 
injurious price established during the IP. Moreover, the proposed coefficients to arrive 
at adjusted MIPs for the types mentioned above were inappropriate as they related to 
the  IP.  Indeed,  in  view  of  the  fact  that  these  coefficients,  which  depend  on  the 
difference  in  price  between  the  feedstock,  continuously  fluctuate,  these  coefficients 
may  have  considerably  changed  in  relation  to  the  situation  observed  during  the  IP. 
Therefore,  the  proposed  indexation  of  MIPs  for  soybean  biodiesel  or  palm  oil 
biodiesel  on  the  basis  of  price  fluctuations  of  the  rapeseed  oil  was  considered 
inappropriate as it would be based on the evolution of prices of raw material different 
to the ones used for the production of the exported product concerned.  

(192)  On  the  basis  of  the  above,  and  without  referring  to  any  further  company  specific 
practical issues regarding their acceptance, it was considered that the undertakings had 
to  be  rejected  as  the  method  to  determine  the  MIPs  was  inappropriate  and  that  the 
offered MIPs were not at levels that would eliminate the injurious subsidisation.  

8.4. 

Definitive collection of provisional duties and special monitoring 

(193)  Subsequent  to  the  disclosure  of  final  findings,  the  complainant  requested  special 
measures to prevent possible circumvention of the measures in view of the fact that the 
market  concerned 
is  a  global  commodity  market  with  a  fungible  product 
commercialised through various sales channels.  

(194)  In  consideration  of  the  above,  it  is  indeed  considered  appropriate  to  monitor  closely 
the  imports  of  biodiesel  from  all  destinations,  with  a  view  of  facilitating  swift 
appropriate action should the situation so require.  

(195)  In view of the magnitude of the subsidy margins found and in the light of the level of 
the  injury  caused  to  the  Community  industry,  it  is  considered  necessary  that  the 
amounts  secured  by  way  of  the  provisional  countervailing  duty,  imposed  by  the 
provisional Regulation should be definitively collected to the extent of the amount of 
the  definitive  duties  imposed.  Where  the  definitive  duties  are  lower  than  the 
provisional  duties,  amounts  provisionally  secured  in  excess  of  the  definitive  rate  of 
countervailing duties shall be released. Where the definitive duties are higher than the 
provisional duties, only the amounts secured at the level of the provisional duties shall 
be definitively collected. 

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35 

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HAS ADOPTED THIS REGULATION: 

Article 1 

1. 

A  definitive  countervailing  duty  is  hereby  imposed  on  imports  of  fatty-acid  mono-
alkyl esters and/or paraffinic gasoil obtained from synthesis and/or hydro-treatment, 
of  non-fossil  origin,  commonly  known  as  ‘biodiesel’,  in  pure  form  or  in  a  blend 
containing  by  weight  more  than  20 %  of  fatty-acid  mono-alkyl  esters  and/or 
paraffinic  gasoil  obtained  from  synthesis  and/or  hydro-treatment,  of  non-fossil 
origin,  currently  falling  within  CN  codes  ex  1516  20  98  (TARIC  code  1516  20  98 
20), ex 1518 00 91 (TARIC code 1518 00 91 20), ex 1518 00 99 (TARIC code 1518 
00 99 20), ex 2710 19 41 (TARIC code 2710 19 41 20), 3824 90 91, ex 3824 90 97 
(TARIC code 3824 90 97 87), and originating in the United States of America.  

2. 

The rate of the definitive countervailing duty applicable to the products described in 
paragraph 1 and manufactured by the companies below shall be: 

Company 

Archer Daniels Midland Company, 
Decatur 

Cargill Inc., Wayzata 

Green Earth Fuels of Houston LLC, 
Houston 

Imperium Renewables Inc., Seattle 

Peter Cremer North America LP, 
Cincinnati 

Vinmar Overseas Limited, Houston 

World Energy Alternatives LLC, 
Boston 

Companies listed in the Annex 

All other companies 

Countervailing 
duty rate Euro 
per tonne net 

TARIC additional 
code 

237,0 

213,8 

213,4 

216,8 

211,2 

211,2 

211,2 

219,4 

237,0 

A933 

A934 

A935 

A936 

A937 

A 938 

A939 

see Annex 

A999 

The countervailing duty on blends shall be applicable in proportion in the blend, by 
weight, of the total content of fatty-acid mono-alkyl esters and of paraffinic gasoils 
obtained  from  synthesis  and/or  hydro-treatment,  of  non-fossil  origin  (biodiesel 
content). 

3. 

Unless  otherwise  specified,  the  provisions  in  force  concerning  customs  duties  shall 
apply.  

EN 

36 

   EN 

 
Article 2 

Amounts  secured  by  way  of  provisional  countervailing  duties  pursuant  to  Commission 
Regulation (EC) No 194/2009 on imports of biodiesel falling within CN codes ex 1516 20 98 
(TARIC code 1516 20 98 20), ex 1518 00 91 (TARIC code 1518 00 91 20), ex 1518 00 99 
(TARIC code 1518 00 99 20), ex 2710 19 41 (TARIC code 2710 19 41 20), 3824 90 91, ex 
3824  90  97  (TARIC  code  3824  90  97  87),  and  originating  in  the  United  States  of  America 
shall be definitively collected. The amounts secured in excess of the amount of the definitive 
countervailing  duties  shall  be  released.  Where  the  definitive  duties  are  higher  than  the 
provisional  duties,  only  the  amounts  secured  at  the  level  of  the  provisional  duties  shall  be 
definitively collected. 

This  Regulation  shall  enter  into  force  on  the  day  following  that  of  its  publication  in  the 
Official Journal of the European Union. 

Article 3 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels,  

For the Council 
The President 
[…] 

EN 

37 

   EN 

 
 
 
 
ANNEX 

US co-operating exporting producers not sampled 

Company Name 

AC & S Inc. 

City 

Nitro 

Alabama Clean Fuels Coalition Inc. 

Birmingham 

American Made Fuels, Inc. 

Arkansas SoyEnergy Group 

Arlington Energy, LLC 

Athens Biodiesel, LLC 

Beacon Energy 

Biodiesel of Texas, Inc. 

BioDiesel One Ltd 

BioPur Inc. 

Buffalo Biodiesel, Inc 

BullDog BioDiesel 

Carbon Neutral Solutions, LLC 

Central Iowa Energy LLC 

Canton 

DeWitt 

Mansfield 

Athens 

Cleburne 

Denton 

Southington 

Bethlehem 

Tonawanda 

Ellenwood 

Mauldin 

Newton 

Chesapeake Custom Chemical Corp. 

Ridgeway 

Community Fuels 

Delta BioFuels Inc. 

Diamond Biofuels 

Direct Fuels 

Stockton 

Natchez 

Mazon 

Euless 

Eagle Creek Fuel Services, LLC 

Baltimore 

Earl Fisher Bio Fuels 

East Fork Biodiesel LLC 

Chester 

Algona 

ECO Solutions, LLC 

Chatsworth 

TARIC additional 
code 

A941 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A941 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

EN 

38 

   EN 

 
Ecogy Biofuels LLC 

Tulsa 

ED&F Man Biofuels Inc. 

New Orleans 

Freedom Biofuels Inc. 

Freedom Fuels LLC 

Fuel & Lube, LLC 

Fuel Bio 

Madison 

Mason City 

Richmond 

Elizabeth 

FUMPA Bio Fuels 

Redwood Falls 

Galveston  Bay  Biodiesel  LP  (BioSelect 
Fuels)  

Houston 

GeoGreen Fuels LLC 

Georgia Biofuels Corp. 

Green River Biodiesel, Inc. 

Griffin Industries Inc. 

High Plains Bioenergy 

Houston 

Loganville 

Moundville 

Cold Spring 

Guymon 

Huish Detergents Inc. 

Salt Lake City 

Incobrasa Industries Ltd. 

Gilman 

Independence Renewable Energy Corp. 

Perdue Hill 

Indiana Flex Fuels 

Innovation Fuels Inc. 

LaPorte 

Newark 

Integrity Biofuels 

Morristown 

Iowa Renewable Energy LLC 

Washington 

Johann Haltermann Ltd. 

Lake Erie Biofuels LLC  

Leland Organic Corporation 

Houston 

Erie 

Leland 

Louis  Dreyfus  Agricultural  Industries 
LLC 

Claypool 

Louis Dreyfus Claypool Holdings LLC 

Claypool 

A940 

A940 

A940 

A941 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A941 

A940 

A940 

A940 

A940 

A940 

A940 

EN 

39 

   EN 

 
Middle Georgia Biofuels 

East Dublin 

Middletown Biofuels LLC 

Blairsville 

Musket Corporation 

Oklahoma City 

Natural Biodiesel Plant LLC 

New Fuel Company 

Hayti 

Dallas 

North Mississippi Biodiesel 

New Albany 

Northern Biodiesel, Inc. 

Ontario 

Northwest Missouri Biofuels, LLC 

St. Joseph 

Nova Biofuels Clinton County LLC 

Clinton 

Nova Biosource 

Organic Fuels Ltd. 

Senaca 

Houston 

Owensboro Grain Company LLC 

Owensboro 

Paseo Cargill Energy, LLC 

Kansas City 

Peach State Labs Inc. 

Perihelion Global, Inc. 

Rome 

Opp 

Philadelphia Fry-O-Diesel Inc. 

Philadelphia 

Piedmont Biofuels Industrial LLC 

Pittsboro 

Pinnacle Biofuels, Inc. 

PK Biodiesel 

Crossett 

Woodstock 

Pleasant Valley Biofuels, LLC 

American Falls 

Prairie Pride 

RBF Port Neches LLC 

Red Birch Energy, Inc. 

Deerfield 

Houston 

Bassett 

Red River Biodiesel Ltd. 

New Boston 

REG Ralston LLC 

Ralston 

Renewable Energy Products, LLC 

Santa Fe Springs 

A940 

A940 

A940 

A941 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A941 

A940 

A940 

A940 

A941 

A940 

A940 

A940 

A940 

A940 

EN 

40 

   EN 

 
Riksch BioFuels LLC 

Crawfordsville 

Safe Renewable Corp. 

Sanimax Energy Inc. 

Seminole Biodiesel 

Southeast BioDiesel LLC 

Soy Solutions 

SoyMor Biodiesel LLC 

Stepan Company 

Sunshine BioFuels, LLC 

TPA Inc. 

Trafigura AG 

U.S. Biofuels Inc.  

United Oil Company 

Valco Bioenergy 

Vanguard Synfuels, LLC 

Vitol Inc. 

Walsh Bio Diesel, LLC 

Conroe 

DeForest 

Bainbridge 

Charlotte 

Milford 

Albert Lea 

Northfield 

Camilla 

Warren 

Stamford 

Rome 

Pittsburgh 

Harlingen 

Pollock 

Houston 

Mauston 

Western Dubque Biodiesel LLC 

Farley 

Western Iowa Energy LLC 

Wall Lake 

Western Petroleum Company  

Eden Prairie 

Yokaya Biofuels Inc. 

Ukiah 

A940 

A940 

A940 

A940 

A941 

A940 

A940 

A941 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A940 

A941 

EN 

41 

   EN