48812 Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Notices

doctoral fellows in the ESR

spectroscopic techniques and their use

in determining protein structure and

function. Application accepted by

Commissioner of Customs: August 28,

1997.

Frank W. Creel,

Director, Statutory Import Programs Staff.

[FR Doc. 97–24711 Filed 9–16–97; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

International Trade Administration

[C–122–815]

Pure and Alloy Magnesium From

Canada; Final Results of the Fourth

(1995) Countervailing Duty

Administrative Reviews

AGENCY: Import Administration,

International Trade Administration,

Department of Commerce.

ACTION: Notice of final results of

countervailing duty administrative

reviews.

SUMMARY: On May 12, 1997, the

Department of Commerce (the

Department) published in the Federal

Register its preliminary results of

administrative reviews of the

countervailing duty orders on pure and

alloy magnesium from Canada for the

period January 1, 1995 through

December 31, 1995 (see Pure

Magnesium and Alloy Magnesium From

Canada; Preliminary Results of

Countervailing Duty Administrative

Reviews (Preliminary Results), 62 FR

25924). We have completed these

reviews and determine the net subsidy

in each to be 3.18 percent ad valorem

for Norsk Hydro Canada, Inc. (NHCI).

We will instruct the U.S. Customs

Service to assess countervailing duties

as indicated above.

EFFECTIVE DATE: September 17, 1997.

FOR FURTHER INFORMATION CONTACT:

Marian Wells or Hong-Anh Tran, Office

1, Group 1, AD/CVD Enforcement,

Import Administration, International

Trade Administration, U.S. Department

of Commerce, 14th Street and

Constitution Avenue, NW, Washington,

DC 20230; telephone: (202) 482-6309 or

(202) 482–0176, respectively.

SUPPLEMENTARY INFORMATION:

Background

In accordance with 19 C.F.R.

355.22(a), these reviews cover only

those producers or exporters of the

subject merchandise for which reviews

were specifically requested.

Accordingly, these reviews cover only

NHCI, a producer of the subject

merchandise which exported pure and

alloy magnesium to the United States

during the review period.

On May 12, 1997, the Department

published in the Federal Register the

Preliminary Results of its administrative

reviews of the countervailing duty

orders on pure and alloy magnesium

from Canada (62 FR 25924). We invited

interested parties to comment on the

Preliminary Results. On June 10, 1997,

case briefs were submitted by NHCI, a

producer of the subject merchandise

which exported pure and alloy

magnesium to the United States during

the review period, and the Government

of Que ́bec (GOQ). At the request of the

GOQ, the Department held a public

hearing on June 17, 1997.

These reviews cover the period

January 1, 1995 through December 31,

1995 (the period of review or POR). The

reviews involve one company (NHCI)

and the following programs: Exemption

from Payment of Water Bills, Article 7

Grants from the Que ́bec Industrial

Development Corporation (SDI), St.

Lawrence River Environment

Technology Development Program,

Program for Export Market

Development, the Export Development

Corporation, Canada-Que ́bec Subsidiary

Agreement on the Economic

Development of the Regions of Que ́bec,

Opportunities to Stimulate Technology

Programs, Development Assistance

Program, Industrial Feasibility Study

Assistance Program, Export Promotion

Assistance Program, Creation of

Scientific Jobs in Industries, Business

Investment Assistance Program,

Business Financing Program, Research

and Innovation Activities Program,

Export Assistance Program, Energy

Technologies Development Program,

and Transportation Research and

Development Assistance Program.

Applicable Statute

Unless otherwise indicated, all

citations to the statute are in reference

to the provisions of the Tariff Act of

1930, as amended by the Uruguay

Round Agreements Act (URAA)

effective January 1, 1995 (the Act). The

Department is conducting these

administrative reviews in accordance

with section 751(a) of the Act.

Scope of the Reviews

The products covered by these

reviews are shipments of pure and alloy

magnesium from Canada. Pure

magnesium contains at least 99.8

percent magnesium by weight and is

sold in various slab and ingot forms and

sizes. Magnesium alloys contain less

than 99.8 percent magnesium by weight

with magnesium being the largest

metallic element in the alloy by weight,

and are sold in various ingot and billet

forms and sizes. Pure and alloy

magnesium are currently classifiable

under subheadings 8104.11.0000 and

8104.19.0000, respectively, of the

Harmonized Tariff Schedule (HTS).

Although the HTS subheadings are

provided for convenience and customs

purposes, our written description of the

scope of this proceeding is dispositive.

Secondary and granular magnesium

are not included in the scopes of these

orders. Our reasons for excluding

granular magnesium are summarized in

the Preliminary Determination of Sales

at Less Than Fair Value: Pure and Alloy

Magnesium From Canada (57 FR 6094,

February 20, 1992).

Analysis of Programs

Based upon our analysis of the

questionnaire responses and written

comments from the interested parties,

we determine the following:

I. Programs Conferring Subsidies

A. Exemption from Payment of Water

Bills

In the Preliminary Results, we found

that this program conferred

countervailable benefits on the subject

merchandise. Our analysis of the

comments submitted by the interested

parties, summarized below, has not led

us to change our findings from the

Preliminary Results. On this basis, the

net subsidy rate for this program is as

follows:

Manufacturer/exporter Rate

(percent)

NHCI ......................................... 0.50

B. Article 7 Grants from the Que ́bec

Industrial Development Corporation

In the Preliminary Results, we found

that this program conferred

countervailable benefits on the subject

merchandise. Our analysis of the

comments submitted by the interested

parties, summarized below, has not led

us to change our findings from the

Preliminary Results. On this basis, the

net subsidy rate for this program is as

follows:

Manufacturer/exporter Rate

(percent)

NHCI ......................................... 2.68

II. Programs Found Not To Be Used

In the Preliminary Results, we found

that NHCI did not apply for or receive

benefits under the following programs:
Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Notices 48813

• St. Lawrence River Environment

Technology Development Program

• Program for Export Market

Development

• Export Development Corporation

• Canada-Que ́bec Subsidiary

Agreement on the Economic

Development of the Regions of

Que ́bec

• Opportunities to Stimulate

Technology Programs

• Development Assistance Program

• Industrial Feasibility Study

Assistance Program

• Export Promotion Assistance Program

• Creation of Scientific Jobs in

Industries

• Business Investment Assistance

Program

• Business Financing Program

• Research and Innovation Activities

Program

• Export Assistance Program

• Energy Technologies Development

Program

• Transportation Research and

Development Assistance Program.

We received no comments on these

programs from the interested parties;

therefore, we have not changed our

findings from the Preliminary Results.

Analysis of Comments

Comment 1: Countervailability of the

Exemption from Payment of Water Bills

NHCI argues that, in calculating the

countervailable benefit under this

program, the Department has in its

Preliminary Results overstated the

benefit by using the amount NHCI

would have paid for water during the

POR instead of NHCI’s actual water

consumption amount during the POR.

NHCI claims that absent the credit from

its supplier of water, La Societe ́ du Parc

Industriel et Portuaire de Be ́cancour

(‘‘Industrial Park’’), NHCI would have

been subject to a different billing

arrangement based on actual water

consumption which was the billing

basis for all of the other Industrial Park

customers. Thus, to calculate the

amount of the benefit it received under

this program, NHCI argues that the

Department should use the amount

NHCI would have paid based on its

actual water consumption.

NHCI claims that this issue is

analogous to the question of what

commercial interest rate benchmark

should be used where a company is

benefitting from a preferential interest

rate. As such, NHCI states that the

appropriate benchmark to measure the

amount of benefit, in this case, is the

commercial water rate available to all

the other Industrial Park’s customers. By

using the rate associated with NHCI’s

credit agreement as opposed to the

commercially available rate, NHCI

claims that the Department has

unlawfully overstated the amount of its

benefit.

DOC Position: We disagree with NHCI

that in order to measure the benefit

conferred by the credit, we are required

to hypothesize what NHCI would have

paid for its water in the absence of the

credit and the contract it entered into.

In these reviews, the terms of the

contract between NHCI and the

Industrial Park state that NHCI is

required to pay an amount based, in

part, on forecasted consumption. To the

extent that the water credit relieved

NHCI from paying its water bills, a

countervailable benefit existed without

regard to whether NHCI would have

received different terms under an

alternative arrangement. Therefore, we

determine that the benefit is the full

amount of the credit (see also Final

Results of the First Countervailing Duty

Administrative Reviews: Pure

Magnesium and Alloy Magnesium From

Canada, (Final Results of First

Magnesium Reviews), 62 FR 13857

(March 24, 1997), and Final Results of

the Third Countervailing Duty

Administrative Reviews: Pure

Magnesium and Alloy Magnesium From

Canada, (Final Results of Third

Magnesium Reviews), 62 FR 18749

(April 17, 1997)).

Comment 2: Article 7 Assistance

under the SDI Act: NHCI argues that the

Department erroneously stated that the

Article 7 assistance was provided to

cover a large percentage of the cost of

certain environmental protection

equipment. Instead, NHCI maintains

that, based on the SDI agreement, NHCI

was required to satisfy two prerequisites

before it could receive any financial

assistance from SDI.

NHCI further argues that the

Department improperly applied its grant

methodology to the Article 7 assistance

provided to NHCI. According to NHCI,

the Department should have used its

loan methodology to calculate the

benefits from virtually all of the SDI

financial assistance received because

NHCI knew at the time it undertook the

borrowings that the interest paid on

those borrowings would be reimbursed.

NHCI states that this would be

consistent with the Department’s

interest rebate methodology, i.e.,

interest rebates should be considered as

reductions in the cost of borrowing if

the company knew that it would receive

the interest rebates at the time it

received the loan (e.g., Final Affirmative

Countervailing Duty Determination;

Certain Steel Products From the United

Kingdom (UK Steel), 58 FR 37393, 37397

(July 9, 1993)).

DOC Position: The issue presented by

this case is whether the Article 7

assistance received by NHCI should be

treated as an interest rebate or as a grant.

If it is treated as an interest rebate, then

under the methodology adopted by the

Department in the 1993 steel cases, the

benefit of the Article 7 assistance would

be countervailed according to our loan

methodology (e.g., Final Affirmative

Countervailing Duty Determinations:

Certain Steel Products From Belgium,

(Belgium Steel) 58 FR 37273, 37276

(July 9, 1993)). However, if treated as a

grant, the benefits would be allocated

over a period corresponding to the life

of the company’s assets.

In its brief, NHCI argues that the

interest rebate methodology reflects the

fact that companies face a choice

between debt and equity financing. If a

company knows that the government is

willing to rebate interest charges before

the company takes out a loan, the

government is encouraging the company

to borrow rather than sell equity. Hence,

NHCI concludes, the benefit should be

measured with reference to the duration

of the borrowing for which the rebate is

provided.

We disagree with NHCI’s contention

that the Department’s interest rebate

methodology was intended to reflect the

choice between equity and loan

financing. In the 1993 steel cases, (see

e.g., Belgium Steel), we examined a

particular type of subsidy, (i.e., interest

rebates), and determined which of our

valuation methodologies was most

appropriate. The possible choices were

between the grant and loan

methodologies. Where the company had

knowledge prior to taking the loan out

that it would receive an interest rebate,

we decided that the loan methodology

was most appropriate because there is

virtually no difference between the

government offering a loan at five

percent interest (which would be

countervailed according to the loan

methodology) and offering to rebate half

of the interest paid on a ten percent loan

from a commercial bank each time the

company makes an interest payment.

Hence, we were seeking the closest

methodological fit for different types of

interest rebates.

However, the interest rebate

methodology described in the 1993 steel

cases was never intended to dictate that

the Department should apply the loan

methodology in every situation in

which a government makes

contributions towards a company’s

interest obligations. The appropriate

methodology depends on the nature of

the subsidy. For example, assume that

the government told a company that it

would make all interest payments on all
48814 Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Notices

construction loans the company took

out during the next year up to $6

million. This type of ‘‘interest rebate’’

operates essentially like a $6 million

grant restricted to a specific purpose.

Whether the purpose is to pay interest

expenses or buy a piece of equipment

does not change the nature of the

subsidy. In contrast, the interest rebate

methodology is appropriate for the type

of interest rebate programs investigated

in the 1993 steel cases, i.e., partial

interest rebates paid over a period of

years on particular long-term loans.

As we did in the 1993 steel cases, the

Department in these reviews is seeking

the most appropriate methodology for

the Article 7 assistance. We erred in our

Preliminary Results of First

Countervailing Duty Administrative

Reviews: Pure Magnesium and Alloy

Magnesium From Canada, 61 FR 11186

(March 19, 1996), in stating that the

primary purpose of the Article 7

assistance was to underwrite the

purchase of environmental equipment.

However, it cannot be disputed that the

environmental equipment played a

crucial role in the agreement between

SDI and NHCI. Most importantly, the

aggregate amount of assistance to be

provided was determined by reference

to the cost of environmental equipment

to be purchased. In this respect, the

Article 7 assistance is like a grant for

capital equipment.

Further, the assistance provided by

SDI is distinguishable from the interest

rebates addressed in the 1993 steel cases

in that the interest payments in the steel

cases rebated a portion of the interest

paid on particular long-term loans.

Here, although the disbursement of

Article 7 assistance was contingent,

inter alia, on NHCI making interest

payments, the disbursements were not

tied to the amount borrowed, the

number of loans taken out or the interest

rates charged on those loans. Instead,

the disbursements were tied to NHCI

meeting specific investment targets and

generally to NHCI having incurred

interest costs on borrowing related to

the construction of its facility.

Therefore, while we recognize that

NHCI had to borrow and pay interest in

order to receive individual

disbursements of the Article 7

assistance, we do not agree that this fact

is dispositive of whether the interest

rebate methodology used in the 1993

steel cases is appropriate. We believe

this program more closely resembles the

scenario described above where the

government agrees to pay all interest

incurred on construction loans taken

out by a company over the next year up

to a specified amount. Because, in this

case, the amount of assistance is

calculated by reference to capital

equipment purchases (something

extraneous to the interest on the loan)

and the reimbursements do not relate to

particular loans, we determine that the

Article 7 assistance should be treated as

a grant.

The Department has in past cases

classified subsidies according to their

characteristics. For example, in the

General Issues Appendix (GIA)

appended to Final Countervailing Duty

Determination; Certain Steel Products

from Austria (58 FR 37217, 37226, (July

9, 1993)), we developed a hierarchy for

determining whether so-called ‘‘hybrid

instruments’’ should be countervailed

according to our loan, grant or equity

methodologies. In short, we were asking

whether the details of particular

government ‘‘contributions’’ made them

more like a loan, a grant or an equity

infusion. Similarly, when a company

receives a grant, we look to the nature

of the grant to determine whether the

grant should be treated as recurring or

non-recurring. In these reviews, we have

undertaken the same type of analysis,

i.e., determining an appropriate

calculation methodology based on the

nature of the subsidy in question. As

with hybrid instruments and recurring/

non-recurring grants, it is appropriate to

determine which methodology is most

appropriate based on the specific facts

of the Article 7 assistance. Although the

Article 7 assistance exhibits

characteristics of both an interest rebate

and a grant, based on an overview of the

contract under which the assistance was

provided, we determine that the weight

of the evidence in this case supports our

treatment of the Article 7 assistance as

a grant.

Comment 3: Obligation of Department

to Re-examine Specificity of Article 7

Assistance: In the event the Department

continues to treat the Article 7

assistance as a nonrecurring grant, the

GOQ argues that the Department must

re-examine whether the assistance was

specific. In particular, the Department is

obliged to evaluate, according to the

GOQ, in each administrative review the

countervailability of a program

previously determined to be de facto

specific, regardless of whether the

parties have provided new information.

The Department may not rely, as it did

in the Preliminary Results, on a de facto

specificity determination made in the

original investigations.

DOC Position: Just as it does not

revisit prior determinations that a

program is not specific, it is the

Department’s policy not to revisit prior

determinations that a program is

specific, absent the presentation of new

facts or evidence (see e.g., Carbon Steel

Wire Rod From Saudi Arabia; Final

Results of Countervailing Duty

Administrative Review and Revocation

of Countervailing Duty Order, 59 FR

58814 (November 15, 1994), Final

Results of First Magnesium Reviews, and

Final Results of Third Magnesium

Reviews). In the present reviews, no new

facts or evidence, have been presented

which would lead us to question our

original specificity determination for the

POI.

Comment 4: Alternative Methodology

for Determining Specificity of Article 7

Assistance: The GOQ continues to

argue, as it has in previous reviews, that

the Department should take an entirely

different approach to the question of

how to determine if a nonrecurring

grant is disproportionately large, and

therefore, specific. Rather than base its

analysis on the entire amount of the

grant at the time of bestowal, the GOQ

maintains that the Department must

instead examine only the portion of the

benefit allocated—in accordance with

the Department’s standard allocation

methodology—to the POR. It is this

amount, in relationship to the portions

of benefits allocated to the POR for all

assistance bestowed under the program

to all other enterprises, that must be

determined to be disproportionate.

Because the benefit attributable to the

POR is the subsidy at issue, it is that

amount, according to the GOQ, that

must be found specific before it may be

countervailed.

DOC Position: As we have explained

in previous final results (see Final

Results of First Magnesium Reviews, and

Final Results of Third Magnesium

Reviews, the GOQ is confusing the

determination of specificity with the

measurement of the subsidy. Tellingly,

the GOQ is unable to cite a single

determination by the Department or any

other legal authority to support its

argument.

The specificity determination and the

measurement of the subsidy are two

separate and distinct processes. The

question of whether a nonrecurring

grant is disproportionately large is based

on an examination of the entire amount

of the grant at the time of bestowal. If

such a grant is found to be

disproportionately large, it is

determined to be specific. (As a grant

specifically provided, it is also at this

point that the statutory requirements for

countervailing the grant are met. See

section 771(5) of the Act.) The separate

and distinct second step is the

measurement of the benefit. This step

involves allocating portions of the grant

over time. It is these portions of the

grant which then provide the basis for

the calculation of the ad valorem rate of
Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Notices 48815

subsidization. The portions of subsidies

allocated to periods of time using the

Department’s standard allocation

methodology are irrelevant to an

examination of the actual distribution of

benefits by the granting government at

the time of bestowal.

Comment 5: Appropriate Time of

Specificity Determination: ‘‘Bestowal’’

or Disbursement: The GOQ argues that

although the Department concluded in

the Final Results of First Magnesium

Reviews and the Final Results of Third

Magnesium that the proper time period

for a specificity determination is the

time of bestowal, the Department did

not examine specificity in the original

period of investigation (POI) at the time

of bestowal. Rather, the Department

examined specificity at the time of

approval of the funds. The GOQ argues

that the time of bestowal for the purpose

of a specificity determination should

refer to the time of actual disbursement

of funds, and should not refer to the

time funds are approved by the granting

authority.

DOC Position: We disagree with the

GOQ’s assertion that the Department’s

specificity analysis during the original

investigations should have been

conducted based on the time of actual

disbursement of funds. We acknowledge

that the specificity determination in the

original investigations was based on the

action of the granting authority, i.e., the

GOQ, at the time of approval. However,

we note that the Department uses the

terms ‘‘approval’’ and ‘‘bestowal’’

interchangeably in this context. The

time of bestowal or approval is the

appropriate basis for the specificity

determination because it most directly

demonstrates whether a government has

limited benefits to an enterprise or

industry, or group thereof.

Comment 6: Relevance of New

Information: The GOQ maintains that

given the Department’s responsibility to

make a finding of specificity and

countervailability based on the

information relevant to the POR, the

Department should consider any new

assistance provided by SDI since the

end of the original POI. To this end, the

GOQ provided information on the

Article 7 assistance extended up to, and

including, the POR in a submission

dated January 15, 1997. According to

the GOQ, this new factual information

was apparently ignored by the

Department when it concluded during

the Preliminary Results for these

reviews that neither the GOQ nor NHCI

provided new information which would

warrant reconsideration of this

determination.

DOC Position: As stated above, the

proper time period for a specificity

determination is the time of bestowal.

Therefore, information submitted by the

GOQ concerning assistance that was

provided subsequent to the time of

bestowal of the assistance granted to

NHCI under Article 7 of the SDI Act is

not relevant to the specificity

determination. The remaining

information presented by the GOQ on

the Article 7 assistance granted prior to

and including the time of bestowal of

NHCI’s Article 7 benefits is nearly

identical to that utilized by the

Department in its original specificity

determination. Differences between the

updated information on Article 7

provided by the GOQ and information

used in the original specificity

determination are sufficiently small so

as not to compromise the original

specificity determination.

Comment 7: Relevance of Article 9

Information: The GOQ argues that

assistance under Article 9 should be

included in the Article 7 specificity

analysis because Article 9 was the

predecessor of Article 7 and the

provisions of Article 9 functioned

basically the same as those of Article 7.

DOC Position: We disagree. The GOQ

did not provide any information which

would allow us to make a determination

on whether Article 9 and Article 7

should be considered integrally linked

or otherwise considered a single

program for purposes of our specificity

analysis. Information on the record in

these proceedings with respect to

Article 9 consists only of a statement by

the GOQ in its case brief that Article 9

was the predecessor of Article 7. This is

an insufficient basis to determine that

the two programs should be treated as

one.

Comment 8: Appropriate

Denominator: NHCI states that in the

Preliminary Results the Department

deviated from its standard practice in

determining the denominator for

companies with multinational

production facilities that fail to rebut

the presumption that subsidies are

domestically tied. In particular, NHCI

argues that it is the Department’s policy

to tie such subsidies to domestic

operations, by allocating benefits to

sales by the domestic company

regardless of country of manufacture, as

opposed to tying to domestic

production, as was done in the

Preliminary Results. NHCI additionally

states that the Department failed both to

explain its basis for presuming that the

subsidies were tied to Canadian

production and to respond to NHCI’s

arguments in favor of allocating the

subsidies over sales by NHCI of subject

merchandise regardless of country of

manufacture. In so doing, NHCI claims

that the Department has denied it due

process by preventing it from rebutting

the presumption and from responding to

the rationale the Department used to

support its decision to tie the subsidies

to domestic production. In support of its

assertion that the subsidies it received

are tied to its domestic operations, NHCI

states that any funds received benefited

all employment-related activities in

Canada (e.g., sales of all products) and

that these activities are related to both

domestic and foreign production. NHCI

elaborates further that the denominator

policy used by the Department in this

case is a deviation from the fungibility

of money principle.

NHCI also cites British Steel plc v.

United States (British Steel) (879 F.

Supp. 1254, 1317) in which the Court

reversed and remanded the

Department’s determinations because it

found that the Department should have

given plaintiffs due notice of its

decision to apply the rebuttable

presumption that the subsidies at issue

were tied to domestic production in

order to allow plaintiffs the opportunity

to rebut the Department’s presumption.

DOC Position: NHCI cites British Steel

to imply that the Department must

inform parties early during the course of

each proceeding of its intent to use the

rebuttable presumption that subsidies to

companies with foreign manufacturing

operations are tied to domestic

production. However, the facts involved

in British Steel are readily

distinguishable. Therefore, the holding

in that case does not apply to the

present situation.

In British Steel, the Court was

examining the Department’s policy of

using the rebuttable presumption

articulated in the GIA. In particular, the

Court took issue with the introduction

of the new policy in the finaldetermination stage of the investigation,

because the timing prevented parties

from both commenting on the

methodology and from presenting

evidence rebutting the presumption. It

is important to note that the

Department’s remand determination, as

affirmed by the Court, upheld the

appropriateness of using the rebuttable

presumption. (Id. at 1316). The

Department has continued to use the

rebuttal presumption and this policy

has become accepted Department

practice. Unlike British Steel, we are not

dealing with the introduction of a new

policy late into the course of a

proceeding in this case. Therefore, the

Department was not required to

forewarn NHCI of the use of the

rebuttable presumption.

We also note that the use of a

denominator based only on
48816 Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Notices

domestically produced merchandise did

not come as a surprise to NHCI. In the

original investigations of these cases

(which pre-dated the rebuttable

presumption) the Department used a

denominator based only on sales of

domestically produced merchandise

(Final Affirmative Countervailing Duty

Determinations: Pure Magnesium and

Alloy Magnesium From Canada, 57 FR

30946 (July 13, 1992)). Since the

investigations in these cases, there has

been a changed circumstances review

(57 FR 54047 (November 16, 1992)) and

a Binational Panel proceeding. In all of

the proceedings, the denominators have

included only domestically produced

merchandise and in no case has NHCI

objected to those denominators. In

addition, the questionnaire for these

reviews requested information on sales

denominators based on domestically

produced merchandise. NHCI provided

the requested sales denominator

information along with denominators

based on total sales by NHCI and

arguments why those based on total

sales should be used. Moreover, sales of

domestically produced merchandise

were used as the denominator in the

Preliminary Results as well as every

other administrative review of these

orders, (see for example, Final Results of

First Magnesium Reviews, and Final

Results of Third Magnesium Reviews).

As can be seen from the foregoing, NHCI

was aware as to the possible use of a

denominator based on domestically

produced merchandise and did indeed

have an opportunity to attempt to rebut

the presumption.

NHCI also argues that the Department

must explain the basis of its

presumption. However, the idea behind

the use of a rebuttable presumption is

that the fact presumed—in this case that

subsidies bestowed on companies with

foreign manufacturing operations are

tied to domestic production—becomes

the default position and does not have

to be explained in each case. As the

Department stated in the GIA, ‘‘Thus,

under the Department’s refined ‘‘tied’’

analysis, the Department will begin by

presuming that a subsidy provided by

the government of the country under

investigation is tied to domestic

production’’ (GIA at 37231). It follows

that the Department will find that

subsidies are tied to domestic

production in the absence of evidence to

the contrary.

As for NHCI’s complaint that the

Department failed to address its

arguments that the subsidies received by

NHCI benefited all of the company’s

operations, not just its manufacturing

activities, we note that in the GIA it

states, ‘‘A party may rebut this

presumption by presenting evidence

tending to show that the subsidy was

not tied to domestic production.’’ The

phrase, ‘‘tending to show’’ means that

the party attempting to rebut the

presumption must provide enough

evidence to convince a reasonable factfinder of the non-existence of the

presumed fact—that subsidies are tied

to the recipient firm’s domestic

production (Results of Redetermination

Pursuant to Court Remand on General

Issues of Sales Denominator: British

Steel plc v. United States, Consol. Ct.

No. 93–09–00550–CVD, Slip Op. 95–17

and Order (CIT Feb. 9, 1995) at 17). The

mere absence of evidence limiting the

government’s intended scope of the

benefit to domestic production is not

sufficient. In this case, NHCI’s

arguments are unsupported by any

evidence that the subsidies bestowed on

NHCI were, in whole or in part, tied to

foreign production. Therefore, NHCI has

failed to rebut the presumption that the

subsidies were tied to domestic

production.

The Department’s methodology for

determining what to include in the

denominator when a company has

foreign manufacturing operations is

explained in the GIA: ‘‘If we determine

that the subsidy is tied to domestic

production, we will allocate the benefit

of the subsidy fully to sales of

domestically produced merchandise’’

(GIA at 37231). This quotation makes it

clear that sales of foreign-produced

merchandise by a respondent company

would not be included in the

denominator. Even if we were to

consider tying the subsidies at issue to

domestic operations, using NHCI’s

suggestion of a sales denominator based

on total NHCI sales would be improper

since such a figure would include sales

of foreign-produced merchandise by

NHCI and, therefore, value-added from

operations in other countries. Based on

the foregoing arguments, we have

continued to allocate subsidies received

by NHCI to the company’s merchandise

produced in Canada.

Final Results of Review

In accordance with 19 CFR

§ 355.22(c)(4)(ii), we calculated an

individual subsidy rate for each

producer/exporter subject to these

administrative reviews. For the period

January 1, 1995 through December 31,

1995, we determine the net subsidy for

NHCI to be 3.18 percent ad valorem. We

will instruct the U.S. Customs Service to

assess countervailing duties as indicated

above. The Department will also

instruct Customs to collect cash

deposits of estimated countervailing

duties in the percentages detailed above

of the f.o.b. invoice price on all

shipments of subject merchandise from

the reviewed company, NHCI, except

from Timminco Limited (which was

excluded from the order in the original

investigations), entered, or withdrawn

from warehouse, for consumption on or

after the date of publication of the final

results of these reviews.

Because the URAA replaced the

general rule in favor of a country-wide

rate with a general rule in favor of

individual rates for investigated and

reviewed companies, the procedures for

establishing countervailing duty rates,

including those for non-reviewed

companies, are now essentially the same

as those in antidumping cases, except as

provided for in section 777A(e)(2)(B) of

the Act. The requested review will

normally cover only those companies

specifically named (19 CFR 355.22(a)).

Pursuant to 19 CFR 355.22(g), for all

companies for which a review was not

requested, duties must be assessed at

the cash deposit rate, and cash deposits

must continue to be collected at the rate

previously ordered. As such, the

countervailing duty cash deposit rate

applicable to a company can no longer

change, except pursuant to a request for

a review of that company. See FederalMogul Corporation and The Torrington

Company versus United States, 822 F.

Supp. 782 (CIT 1993) and Floral Trade

Council v. United States, 822 F. Supp.

766 (CIT 1993) (interpreting 19 CFR

353.22(e), the antidumping regulation

on automatic assessment, which is

identical to 19 CFR 355.22(g)).

Therefore, the cash deposit rates for all

companies except those covered by

these reviews will be unchanged by the

results of these reviews.

We will instruct Customs to continue

to collect cash deposits for nonreviewed companies at the most recent

company-specific or country-wide rate

applicable to the company, except from

Timminco Limited (which was

excluded from the order in the original

investigations). Accordingly, the cash

deposit rates that will be applied to nonreviewed companies covered by these

orders are those established in the

administrative reviews completed for

the most recent POR, conducted

pursuant to the statutory provisions that

were in effect prior to the URAA

amendments. See Pure and Alloy

Magnesium from Canada: Final Results

of the Second (1993) Countervailing

Duty Administrative Reviews. This rate

shall apply to all non-reviewed

companies until a review of a company

assigned this rate is requested. In

addition, for the period January 1, 1995

through December 31, 1995, the

assessment rates applicable to all non-
Federal Register / Vol. 62, No. 180 / Wednesday, September 17, 1997 / Notices 48817

reviewed companies covered by these

orders are the cash deposit rates in

effect at the time of entry.

This notice serves as a reminder to

parties subject to administrative

protective order (APO) of their

responsibility concerning the

disposition of proprietary information

disclosed under APO in accordance

with 19 C.F.R. 355.34(d). Timely written

notification of return/destruction of

APO materials or conversion to judicial

protective order is hereby requested.

Failure to comply with the regulations

and the terms of an APO is a

sanctionable violation.

These administrative reviews and

notice are in accordance with section

751(a)(1) of the Act (19 U.S.C.

1675(a)(1)).

Dated: September 2, 1997.

Robert S. LaRussa,

Assistant Secretary for Import

Administration.

[FR Doc. 97–24710 Filed 9–16–97; 8:45 am]

BILLING CODE 3510–DS–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

[I.D. 091097A]

Incidental Take of Marine Mammals;

Bottlenose Dolphins and Spotted

Dolphins

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of issuance of letters of

authorization.

SUMMARY: In accordance with the

Marine Mammal Protection Act

(MMPA) as amended, and implementing

regulations, notification is hereby given

that 1-year letters of authorization to

take bottlenose and spotted dolphins

incidental to oil and gas structure

removal activities were issued on July

10, 1997, to the Coastal Oil and Gas

Corporation; on July 11, 1997, to Enron

Oil and Gas Corporation; on July 18,

1997, to the Louisiana Land and

Exploration Company, all of Houston,

TX; on July 25, 1997, to Mobil

Exploration and Producing U.S. Inc., of

New Orleans, LA; and on September 10,

1997, to the Forest Oil Corporation, of

Denver, CO, and Unocal of California, of

Lafayette, LA.

ADDRESSES: The applications and letters

are available for review in the following

offices: Office of Protected Resources,

NMFS, 1315 East-West Highway, Silver

Spring, MD 20910 and the Southeast

Region, NMFS, 9721 Executive Center

Drive N, St. Petersburg, FL 33702.

FOR FURTHER INFORMATION CONTACT:

Kenneth R. Hollingshead, Office of

Protected Resources, NMFS, (301) 713–

2055 or Charles Oravetz, Southeast

Region (813) 570–5312.

SUPPLEMENTARY INFORMATION: Section

101(a)(5)(A) of the MMPA (16 U.S.C.

1361 et seq.) directs NMFS to allow, on

request, the incidental, but not

intentional, taking of small numbers of

marine mammals by U.S. citizens who

engage in a specified activity (other than

commercial fishing) within a specified

geographical region, if certain findings

are made and regulations are issued.

Under the MMPA, the term ‘‘taking’’

means to harass, hunt, capture, or kill or

to attempt to harass, hunt, capture or

kill marine mammals.

Permission may be granted for periods

up to 5 years if NMFS finds, after

notification and opportunity for public

comment, that the taking will have a

negligible impact on the species or

stock(s) of marine mammals and will

not have an unmitigable adverse impact

on the availability of the species or

stock(s) for subsistence uses. In

addition, NMFS must prescribe

regulations that include permissible

methods of taking and other means

effecting the least practicable adverse

impact on the species and its habitat,

and on the availability of the species for

subsistence uses, paying particular

attention to rookeries, mating grounds,

and areas of similar significance. The

regulations must include requirements

pertaining to the monitoring and

reporting of such taking. Regulations

governing the taking of bottlenose and

spotted dolphins incidental to oil and

gas structure removal activities in the

Gulf of Mexico were published on

October 12, 1995 (60 FR 53139), and

remain in effect until November 13,

2000.

Summary of Requests

NMFS received requests for letters of

authorization on June 25, 1997, from

Coastal Oil and Gas Corporation; on July

11, 1997, from Enron Oil and Gas

Corporation; on June 27, 1997, from the

Louisiana Land and Exploration

Company; on July 17, 1997, from Mobil

Exploration and Producing U.S. Inc.; on

September 3, 1997, from the Forest Oil

Corporation, and on September 4, 1997,

from Unocal of California. These letters

requested a take by harassment of a

small number of bottlenose and spotted

dolphins incidental to the described

activity. Issuance of these letters of

authorization are based on a finding that

the total takings will have a negligible

impact on the bottlenose and spotted

dolphin stocks of the Gulf of Mexico.

Dated: September 11, 1997.

Patricia A. Montanio,

Deputy Director, Office of Protected

Resources, National Marine Fisheries Service.

[FR Doc. 97–24673 Filed 9–16–97; 8:45 am]

BILLING CODE 3510–22–F

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

[I.D. 080697A]

Small Takes of Marine Mammals

Incidental to Specified Activities;

Seismic Hazards Investigations in

Puget Sound

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of receipt of application

and proposed authorization for a small

take exemption; request for comments.

SUMMARY: NMFS has received a request

from the U.S.Geological Survey (USGS)

for an authorization to take small

numbers of marine mammals by

harassment incidental to collecting

deep-crustal marine seismic data in the

Puget Sound/Straits of Juan de Fuca

region of Washington State. Under the

Marine Mammal Protection Act

(MMPA), NMFS is requesting comments

on its proposal to authorize USGS to

incidentally take, by harassment, small

numbers of marine mammals in the

above mentioned area during late

February or March 1998.

DATES: Comments and information must

be received no later than October 17,

1997.

ADDRESSES: Comments on the

application should be addressed to

Michael Payne, Chief, Marine Mammal

Division, Office of Protected Resources,

NMFS, 1315 East-West Highway, Silver

Spring, MD 20910–3225. A copy of the

application, and a draft environmental

assessment (EA), which includes a list

of references used in this document,

may be obtained by writing to this

address or by telephoning one of the

contacts listed below.

FOR FURTHER INFORMATION CONTACT:

Kenneth R. Hollingshead, Office of

Protected Resources, NMFS, (301) 713–

2055, or Brent Norberg, Northwest

Regional Office, NMFS, (206) 526–6733.