[Federal Register Volume 61, Number 195 (Monday, October 7, 1996)]
[Notices]
[Pages 52408-52426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-25648]


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DEPARTMENT OF COMMERCE
[C-122-404]


Live Swine from Canada; Final Results of Countervailing Duty 
Administrative Reviews

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of Final Results of Countervailing Duty Administrative 
Reviews.

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SUMMARY: On May 29, 1996, the Department of Commerce (the Department) 
published in the Federal Register its preliminary results of three 
administrative reviews of the countervailing duty order on live swine 
from Canada. We have completed these reviews and determine the net 
subsidy to be Can$0.0601 per kilogram for the period April 1, 1991 
through March 31, 1992, Can$0.0613 per kilogram for the period April 1, 
1992 through March 31, 1993, and Can$0.0106 per kilogram for the period 
April 1, 1993 through March 31, 1994. We will instruct the U.S. Customs 
Service to assess countervailing duties as detailed in the Final 
Results of Reviews section of this notice.

EFFECTIVE DATE: October 7, 1996.

FOR FURTHER INFORMATION CONTACT: Stephanie Moore or Cameron Cardozo, 
Office of CVD/AD Enforcement, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202) 
482-2786.

SUPPLEMENTARY INFORMATION:

Background

    On May 29, 1996, the Department published in the Federal Register 
the preliminary results of three administrative reviews of the 
countervailing duty order on live swine from Canada (61 FR 26879). We 
invited interested parties to comment on the preliminary results. On 
June 3, 1996, the Canadian Pork Council requested an extension of the 
time limit for submission of the case briefs from June 28, 1996 until 
July 8, 1996. We granted this request and on July 8, 1996, case briefs 
were submitted by the National Pork Producers' Council, petitioners, 
and by the Government of Canada (GOC), the Government of Quebec (GOQ), 
and the Canadian Pork Council (CPC), respondents. Rebuttal briefs were 
submitted by petitioners, the GOC, the GOQ, and the CPC. On June 13, 
1996, the GOQ requested a public hearing. The Department denied the 
request for the hearing because the request was untimely. The 
Department has now completed these administrative reviews in accordance 
with section 751 of the Tariff Act of 1930, as amended (the Act).
    The periods covered by these administrative reviews are April 1, 
1991 through March 31, 1992, April 1, 1992 through March 31, 1993, and 
April 1, 1993 through March 31, 1994. These reviews were conducted on 
an aggregate basis and involve 43 programs.

Applicable Statute and Regulations

    The Department is conducting these administrative reviews in 
accordance with section 751(a) of the Act. Unless otherwise indicated, 
all citations to the statute and to the Department's regulations are in 
reference to the provisions as they existed on December 31, 1994. 
However, references to the Department's Countervailing Duties; Notice 
of Proposed Rulemaking and Request for Public Comments, 54 FR 23366 
(May 31, 1989) (Proposed Regulations), are provided solely for further 
explanation of the Department's countervailing duty practice. Although 
the Department has withdrawn the particular rulemaking proceeding 
pursuant to which the Proposed Regulations were issued, the subject 
matter of these regulations is being considered in connection with an 
ongoing rulemaking proceeding which, among other things, is intended to 
conform the Department's regulations to the Uruguay Round Agreements 
Act. See 60 FR 80 (Jan. 3, 1995).

Scope of the Reviews

    On August 29, 1996, the Final Results of Changed Circumstances 
Countervailing Duty Administrative Review, and Partial Revocation were 
published (61 FR 45402), in which we revoked the order, in part, 
effective April 1, 1991, with respect to slaughter sows and boars and 
weanlings from Canada, because this portion of the order was no longer 
of interest to domestic interested parties. As a result, the 
merchandise now covered by the order and by these administrative 
reviews is live swine except U.S. Department of Agriculture certified 
purebred breeding swine, slaughter sows and boars and weanlings 
(weanlings are swine weighing up to 27 kilograms or 59.5 pounds). The 
merchandise subject to the order is classifiable under the Harmonized 
Tariff Schedule (HTS) item numbers 0103.91.00 and 0103.92.00. The HTS 
item numbers are provided for convenience and Customs purposes. The 
written description remains dispositive.

[[Page 52409]]

Calculation Methodology for Assessment and Cash Deposit Purposes

    For each review period, we calculated the net subsidy on a country-
wide basis by first calculating the subsidy rate for each province 
subject to the administrative review. We then weight-averaged the rate 
received by each province using as the weight the province's share of 
total Canadian exports to the United States of subject merchandise. We 
then summed the individual provinces' weighted-average rates to 
determine the subsidy rate from all programs benefitting exports of the 
subject merchandise to the United States. In prior proceedings, a 
separate rate was calculated for sows and boars and for all other live 
swine. Due to the partial revocation with respect to slaughter sows and 
boars, we are only calculating a rate for live swine.

Analysis of Programs

    Based upon our analysis of the questionnaire responses, our 
verification, and written comments from the interested parties, we 
determine the following:

I. Programs Conferring Subsidies

1. Feed Freight Assistance

    In the preliminary results, we found that this program conferred 
countervailable benefits on the subject merchandise. We received no 
comments on our preliminary results, however, we found an error in our 
calculations which we have corrected. See Calculation Memorandum on 
file in the Central Records Unit, Room B099, of the Main Commerce 
Building. On this basis, the net subsidies for this program are 
Can$0.0006 per kilogram for the 1991-92 review period, Can$0.0004 per 
kilogram for 1992-93 review period, and Can$0.0004 per kilogram for the 
1993-94 review period.

2. National Tripartite Stabilization Program (NTSP)

    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 subsidies for this program are Can$0.0508 per kilogram 
for the 1991-92 review period and Can$0.0578 per kilogram for 1992-93 
review period. The program was not used during the 1993-94 review 
period.

3. Quebec Farm Income Stabilization Insurance Program (FISI)

    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 subsidies for this program are Can$0.0050 per kilogram 
for the 1991-92 review period, Can$0.0001 per kilogram for the 1992-93 
review period, and Can$0.0003 per kilogram for the 1993-94 review 
period.

4. British Columbia Farm Income Insurance Program (FIIP)

    In the preliminary results, we found that this program conferred 
countervailable benefits on the subject merchandise. We received no 
comments on our preliminary results and our findings remain unchanged 
in these final results. On this basis, the net subsidies for this 
program are less than Can$0.0001 per kilogram for the 1992-93 review 
period, and Can$0.0004 for the 1993-94 review period. British Columbia 
did not export live swine to the United States during the 1991-92 
review period.

5. Saskatchewan Hog Assured Returns Program (SHARP)

    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 
led us to change our findings from the preliminary results. We are 
adding interest accrued during the ninth review period to the amount of 
the deficit written off to calculate the amount of the SHARP grant. 
Also, in line with our preference to use commercial lending rates 
rather than government lending rates, we recalculated the benefit from 
the SHARP grant by using the monthly average medium-term corporate bond 
rate from the Bank of Canada Review as the discount rate in our 
allocation methodology. On this basis, the net subsidies for this 
program are Can$0.0010 per kilogram for the 1991-92 review period, 
Can$0.0007 per kilogram for the 1992-93 review period, and Can$0.0055 
per kilogram for the 1993-94 review period.

6. Alberta Crow Benefit Offset Program (ACBOP)

    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 subsidies for this program are Can$0.0023 per kilogram 
for the 1991-92 review period, Can$0.0019 per kilogram for the 1992-93 
review period, and Can$0.0017 per kilogram for the 1993-94 review 
period.

7. Alberta Livestock and Beeyard Compensation Program

    In the preliminary results, we found that this program conferred 
countervailable benefits on the subject merchandise. We received no 
comments on our preliminary results and our findings remain unchanged 
in these final results. On this basis, the net subsidy for this program 
is less than Can$0.0001 per kilogram for the 1991-92, 1992-93, and 
1993-94 review periods.

8. Ontario Rabies Indemnification Program

    In the preliminary results, we found that this program conferred 
countervailable benefits on the subject merchandise. We received no 
comments on our preliminary results and our findings remain unchanged 
in these final results. On this basis, the net subsidy for this program 
is less than Can$0.0001 per kilogram for the 1991-92, 1992-93, and 
1993-94 review periods.

9. Ontario Livestock and Poultry and Honeybee Compensation Program

    In the preliminary results, we found that this program conferred 
countervailable benefits on the subject merchandise. We received no 
comments on our preliminary results and our findings remain unchanged 
in these final results. On this basis, the net subsidy for this program 
is less than Can$0.0001 per kilogram for the 1991-92, 1992-93, and 
1993-94 review periods.

10. Saskatchewan Livestock Investment Tax Credit

    In the preliminary results, we found that this program conferred 
countervailable benefits on the subject merchandise. We received no 
comments on our preliminary results and our findings remain unchanged 
in these final results. On this basis, the net subsidy for this program 
is Can$0.0002 per kilogram for the 1991-92, 1992-93, and 1993-94 review 
periods.

[[Page 52410]]

11. Saskatchewan Livestock Facilities Tax Credit Program

    In the preliminary results, we found that this program conferred 
countervailable benefits on the subject merchandise. We received no 
comments on our preliminary results and our findings remain unchanged 
in these final results. On this basis, the net subsidy for this program 
is Can$0.0001 per kilogram for the 1991-92, 1992-93, and 1993-94 review 
periods.
    12. Saskatchewan Interim Red Meat Production Equalization Program
    In the preliminary results, we found that this program conferred 
countervailable benefits on the subject merchandise due to allegations 
of new subsidies by the petitioner during the 1992-93 review period. We 
received no comments on our preliminary results and our findings remain 
unchanged in these final results. On this basis, the net subsidies for 
this program are Can$0.0002 per kilogram for the 1992-93 review period 
and Can$0.0021 per kilogram for the 1993-94 review period.

13. Ontario Export Sales Aid Program

    In the preliminary results, we found that this program conferred 
countervailable benefits on the subject merchandise. We received no 
comments on our preliminary results and our findings remain unchanged 
in these final results. On this basis, the net subsidy for this program 
is less than Can$0.0001 per kilogram for the 1991-92 and 1993-94 review 
periods. The program was not used during the 1992-93 review period.

II. Programs Found Not to Confer Subsidies

    In the preliminary results, we found the following programs to be 
non-countervailable:
    A. Canada/British Columbia Agri-Food Regional Development 
Subsidiary Agreement;
    B. Canada/Manitoba Agri-Food Development Agreement;
    C. Canada/Quebec Subsidiary Agreement on Agri-Food Development;
    D. Net Income Stabilization Accounts (NISA);
    E. Saskatchewan Livestock Cash Advance Program;
    F. Ontario Farm Tax Rebate Program;
    G. Prince Edward Island Pro Pork Assistance Program;
    H. Cash Flow Enhancement Program.
    Our analysis of the comments submitted by the interested parties, 
summarized below, has not led us to change our findings from the 
preliminary results.

III. Programs Found Not to be Used

    In the preliminary results, we found that the producers and/or 
exporters of the subject merchandise did not apply for or receive 
benefits under the following programs:
    A. Agricultural Products Board Program;
    B. Federal Atlantic Livestock Feed Initiative (New Brunswick, 
Newfoundland, Nova Scotia, and Prince Edward Island);
    C. Western Diversification Program;
    D. British Columbia Special Hog Payment Program;
    E. New Brunswick Development Act--Swine Assistance Program;
    F. New Brunswick Livestock Incentives Program;
    G. New Brunswick Swine Assistance Policy on Boars;
    H. New Brunswick Swine Industry Financial Restructuring Program;
    I. Newfoundland Farm Products Corporation-Hog Price Support;
    J. Newfoundland Weanling Bonus Incentive Policy;
    K. Nova Scotia Improved Sire Policy;
    L. Ontario Bear Damage to Livestock Compensation Program; and
    M. Ontario Swine Sales Assistance Policy.
    Our analysis of the comments submitted by the interested parties, 
summarized below, has not led us to change our findings from the 
preliminary results.

IV. Programs Found to be Terminated

    In the preliminary results, we found the following programs to be 
terminated and that no residual benefits were provided during the 
review periods:
    A. New Brunswick Hog Price Stabilization Plan;
    B. Canada/Alberta Swine Improvement Program Study;
    C. Canada/Ontario Western Agribition Livestock Transportation 
Assistance Program;
    D. Canada/Ontario Stabilization Plan for Hog Producers;
    E. Alberta Red Meat Interim Insurance;
    F. Ontario Livestock Improvement Program for Northern Ontario;
    G. Ontario Pork Industry Improvement Plan;
    H. Prince Edward Island Interest Payments on Assembly Yard Loan; 
and
    I. Prince Edward Island Swine Incentive Policy.
    Our analysis of the comments submitted by the interested parties, 
summarized below, has not led us to change our findings from the 
preliminary results.

Analysis of Comments

    Comment 1: Petitioners argue that the Department should revise its 
preliminary determination that NISA's farm-fed grain provision does not 
provide a countervailable benefit to hog producers. They state that the 
farm-fed provision is a discrete and independent sub-program of NISA 
and, thus, the Department should analyze NISA's countervailability in 
the narrower context of the farm-fed grain provision. According to 
petitioners, such an approach is justified because hog farmers would be 
ineligible for NISA assistance without this provision. Therefore, the 
farm-fed grain component of the broader NISA program is sufficiently 
unique and circumscribed to warrant consideration on an independent 
basis. Petitioners maintain that this approach is consistent with the 
Department's analysis of the countervailability of particular subsidies 
on a sub-program basis in Small Diameter Circular Seamless Carbon and 
Alloy Steel Standard, Line and Pressure Pipe from Italy, 60 FR 31992 
(June 19, 1995) (Italian Pipe).
    The petitioners contend that the farm-fed provision is 
countervailable because it provides a direct transfer of funds to hog 
producers and it expressly limits eligibility for the program to 
livestock producers and hence, is de jure specific. Also, the NISA 
farm-fed grain provision is virtually identical to the ACBOP program, 
which the Department has recognized as a countervailable subsidy. 
According to petitioners, both programs share the same basic goal of 
subsidizing hog farmers who also grow grains. The record contains no 
compelling legal or factual basis for treating ACBOP as countervailable 
while allowing NISA to escape the purview of U.S. countervailing duty 
law. Finally, petitioners state that the farm-fed grain provision 
constitutes an express mechanism for subsidizing hog farmers by 
providing these farmers benefits that they otherwise would not be 
entitled to receive.
    The GOC and the CPC counter that the Department properly concluded 
that NISA is not specific and that petitioners have not challenged this 
determination. The GOC and the CPC contend that the farm-fed provision 
cannot be examined separately because of the whole farm nature of the 
NISA program. Contributions are based on the entire farm's total net 
sales of all eligible products, and withdrawals are based on overall 
farm income rather than the income of particular products. Thus, NISA-
eligible products cannot be examined separately for purposes of

[[Page 52411]]

calculating NISA withdrawals. The purpose of the provision is to 
provide the same coverage to grain farmers that feed some of their 
grain to livestock and to grain farmers that sell their grain and thus 
generate sales of an eligible product. By providing this coverage, 
according to respondents, NISA avoids creating an artificial incentive 
to farmers to sell their grain rather than feed it on-farm. Thus, any 
benefit the farm-fed provision may provide to farmers who produce hogs 
and grow grain is like any other benefit farmers may receive on NISA-
eligible products and is, thus, not countervailable.
    The GOC and the CPC continue that, contrary to the petitioners' 
``sub-program'' theory, the record actually shows that the feed 
equivalent is one line in the NISA eligible net sales calculation. This 
one line is blended into a single total eligible net sales number on 
which the matchable producer contributions are calculated. The GOC and 
the CPC state that there simply is no separate existence of the farm-
fed equivalent provision as a NISA ``sub-program'' in any respect. 
However, even if the Department were to accept the petitioners' 
argument, they argue that NISA and its feed equivalent would have to be 
considered a single program. NISA makes all farmers eligible, offers 
only one type of benefit, one set of eligibility requirements, one 
administering agency, one legislative source, and no administrative 
discretion. Therefore, NISA must be examined as a whole and found not 
specific.
    Finally, the GOC and the CPC claim that the petitioners' attempt to 
compare the farm-fed grain provision to ACBOP is also incorrect. ACBOP 
is directed only at purchasers and producers of feed grain and its 
benefits are tied to grain purchases and actual use in livestock feed 
by livestock producers. NISA is a program for producers of numerous 
products and whose ``whole farm'' concept eliminates any link between 
contributions or withdrawals, on the one hand, and a farmer's purchases 
of one input in production, such as grain, on the other.
    Department's Position: We disagree with the petitioners that the 
farm-fed grain provision of NISA should be analyzed separately for 
purposes of our countervailing duty analysis. Rather than a separate 
sub-component of the NISA program, the farm-fed grain provision is an 
integral part of the NISA program designed to equalize treatment of 
farm-fed grains and marketed grains. There are no separate eligibility 
requirements for receiving NISA assistance under the farm-fed grain 
provision. Eligible contributions under the farm-fed provision are 
represented by a single line item in the NISA eligible net sales 
calculation, which includes net sales of all other NISA-eligible 
products. All of these net sales of eligible products are combined into 
a single total eligible net sales number on which the matchable 
producer and government contributions are calculated. In sum, 
calculations of benefits under the farm-fed provision are 
indistinguishable from the other NISA calculations.
    Moreover, the NISA farm-fed grain provision is not like Law 675 
which we analyzed in Italian Pipe. In that case, Law 675 was a single 
law that encompassed six separate and discrete programs that provided 
benefits to particular industries. Each program had distinct purposes, 
types of benefits, application and approval procedures, and 
administration. Italian Pipe, 60 FR 31995-96. The NISA program has one 
purpose, one type of benefit, one set of eligibility requirements, and 
one administering agency. For these reasons, we continue to analyze the 
countervailability of the farm-fed provision within the context of the 
overall NISA program.
    Further, we do not agree that NISA's farm-fed provision is 
virtually identical to the ACBOP program. ACBOP was found de jure 
specific because it is limited to and directly benefits only purchasers 
and producers of feed grain (Live Swine from Canada; Final Results of 
Countervailing Duty Administrative Reviews, 48 FR 10410 (March 12, 
1991)). Because hog producers benefit from a program found to be de 
jure specific, we have countervailed those benefits under ACBOP in our 
administrative reviews of this order. In the case of NISA, we have 
found that the program is not de jure specific because the legislation 
does not expressly limit the availability of the program. Furthermore, 
we have found that NISA is not de facto specific because a large 
majority and wide variety of all agricultural products are covered, 
there is no evidence of dominant use or disproportionality of benefits 
by a specific enterprise or industry, and there is almost no government 
discretion in conferring benefits. Because we have determined that 
NISA, including the farm-fed grain provision, is a single program, we 
do not need to address the issue of specificity at the level of the 
farm-fed grain provision.
    Comment 2: Petitioners argue that in calculating the NISA farm-fed 
grain benefit, the Department should include Farm Support and 
Adjustment Measures (FSAMs) funds as part of the government's 
contribution into the NISA program. According to petitioners, since 
FSAMs reflect federal incentive contributions and federal bonuses for 
early enrollment in NISA, they are an integral part of the total 
benefits paid out under NISA. Also, FSAM contributions equaled more 
than half of total federal government contributions to the NISA 
program. Yet, in the calculations of estimated NISA benefits submitted 
by the GOC, FSAM funds were not included. Petitioners state that by not 
including FSAM contributions, the GOC's calculation fails to reflect 
the true amount of benefits accruing to hog producers.
    Respondents counter that the petitioners are inconsistent when they 
argue that a line item in the NISA calculation, the farm-fed grain 
provision, is a separate program, and then argue that FSAMs, which in 
the respondent's view is a separate program, is one and the same with 
NISA. In any case, respondents state that FSAMs are non-specific 
whether viewed as a separate program or as part of NISA. FSAMs were a 
temporary and transitional measure to assist in getting the NISA and 
GRIP programs off the ground. As a separate program, FSAMs provided 
benefits to all of the same products covered by NISA in its first year 
of operation. Therefore, respondents argue that FSAMs are also non-
specific. On the other hand, according to respondents, if FSAMs are 
integral to the NISA program, then FSAMs are still non-specific since 
NISA is not specific.
    Department's Position: FSAM benefits are indistinguishable from 
those provided by NISA. Although provided for under additional 
legislation, FSAMs can only deliver benefits through a previously 
established program, NISA. Under the NISA program, a farmer can make 
deposits, up to 2 percent of net eligible sales, into an individual 
savings account and receive matching government deposits, up to 1 
percent of net sales each from the provincial and federal governments. 
As we stated in our verification report, through FSAMs the federal 
government contributed to the NISA program in excess of this 1 percent 
of net sales during NISA's initial year of operation. As a result, more 
funding was available to farmers for withdrawals from their NISA 
accounts. However, since we have determined that NISA is not specific, 
any additional benefits provided under NISA via FSAMs are not 
countervailable.
    Comment 3: The petitioners state that the GOC has understated the 
NISA farm-fed grain benefit for the eighth review

[[Page 52412]]

period. According to petitioners, given the verified data pertaining to 
the seventh review, the Department should reject the GOC's information 
and calculate farm-fed NISA benefits for the eighth and ninth review 
using adjusted data from the seventh review.
    The GOC responds that the farm-fed grain calculations provided are 
admittedly complex and NISA's whole-farm approach makes it impossible 
to account for payments on a product basis. Thus, any calculation 
methodology necessarily will involve a number of allocations and 
components. In any case, because NISA is non-specific, the GOC 
maintains that delving back into these calculations in not necessary.
    Department's Position: Since the Department has determined that 
NISA is not countervailable, the issue of the accuracy of the GOC's 
NISA benefit calculations is moot.
    Comment 4: The GOC argues that the Department's preliminary 
determination that FIPA does not constitute a single program does not 
reflect any reasonably clear articulation of the standard to be 
applied. According to the GOC, the Department's preliminary 
determination mentions at least eight factors, but does not explicitly 
identify which of the eight factors are important, which are reflective 
of past Department decisions, or the priority by which the factors 
should be considered. The GOC continues that the agency must articulate 
with reasonable clarity the reasons for a decision, including the 
standards being applied and the weight accorded to significant facts. 
As a result, the GOC requests the Department to formulate an 
appropriate ``single program'' standard based on factors relevant to 
that inquiry and to redetermine whether FIPA is a single program under 
that standard.
    The petitioners reply that the agency's single program analysis is 
not dictated by statute or regulation, but rather, constitutes a simple 
factual analysis undertaken by the agency in its role as decision 
maker. According to petitioners, when neither the statute nor the 
regulations prescribe a particular methodology to be used, the agency's 
decision will be considered a reasonable exercise of discretion as long 
as it recognizes and considers the relevant facts. In this case, the 
Department's explanation clearly references and discusses all of the 
evidence relevant to its separate treatment of the FIPA programs.
    Department's Position: Neither the countervailing duty statute nor 
regulations mandate a specific standard to be used when determining 
whether a program under review should be treated as a single program or 
several programs. Under these circumstances, the Department has 
discretion and must base its determination on a reasonable 
interpretation of the facts on the record. See Hercules v. United 
States, 673 F. Supp. 454, 463 (CIT 1987). The record shows that we 
extensively analyzed the information submitted by the GOC, as well as 
our determinations in prior cases, in reaching our determination that 
we should examine the components of FIPA as separate programs. (See 
Memorandum on Farm Income Protection Act, to Barbara E. Tillman from 
CVD team dated April 13, 1994, which is on file in the Central Records 
Unit, Room B099, of the Main Commerce Building, FIPA Memorandum.) The 
FIPA Memorandum shows that the Department analyzed in great detail the 
legislation, structure, and operation of FIPA and its component parts 
and compared this set of facts with previous decisions of the 
Department. Whether there is one program or multiple programs is a 
question of fact, not a legal analysis. Thus, the question can only be 
addressed through examination of the facts of record. Although a 
comparison of the facts in this case with the facts of other cases in 
which we examined the same issue may be part of that analysis, these 
are case-by-case factual findings. The FIPA Memorandum clearly explains 
the primary facts leading to our conclusion that FIPA encompasses 
several separate programs: (1) the FIPA legislation authorizes 
agreements between the GOC and the provincial governments to protect 
the income of agricultural producers, (2) the federal/provincial 
agreements that established the operations of NISA, Gross Revenue 
Insurance Program (GRIP), Crop Insurance, and NTSPs retain significant 
discretion with respect to FIPA's statutory authority in identifying 
the type of beneficiary under each program, delineating administrative 
procedures, and setting up funding commitments among the participants, 
and (3) NISA, NTSP, GRIP and Crop Insurance have separate and different 
eligibility criteria and application procedures.
    The GOC does not dispute those facts but believes that the 
Department should have reached a different conclusion given other 
facts. Specifically, the GOC believes that a ``single legislative 
enactment'' should assume an elevated role in our analysis. We disagree 
(see Department's Position on Comment 5) and continue to find that the 
facts support our conclusion that these are separate programs. 
Matsushita Elec. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 
1984) (the possibility of two inconsistent conclusions does not warrant 
reversal of the agency's reasonable determination).
    Comment 5: The GOC proposes a new standard for the single program 
inquiry which includes three prongs: whether the programs in question 
stem from a single legislative enactment, whether the enactment 
contains sufficient substantive detail to define the programs with 
reasonable certainty, and whether the constituent programs involve at 
least some common administrative oversight. By this standard, the GOC 
maintains that FIPA should be judged to be a single program.
    The petitioners respond that this ``single legislative enactment'' 
standard contravenes the basic purpose of U.S. countervailing duty law 
since a critical component of the subsidy analysis is whether a 
program, as applied, provides a specific benefit to an industry. 
Moreover, even under the application of this standard, FIPA is not a 
single program since, state petitioners, FIPA did not create the 
assistance provided under NTSP and Crop Insurance, but attached to 
these pre-existing programs the same label associated with the newly 
created GRIP and NISA programs. Accepting the GOC's argument would mean 
that virtually every time a government enacts a comprehensive 
initiative to provide assistance to an industry, the Department would 
be precluded from examining the elements of that initiative on an 
individual basis.
    Department's Position: We disagree with the GOC. As we explained in 
Department's Position on Comment 4, there is no legal or regulatory 
requirement that the Department develop a ``single program standard.'' 
In the Department's view, because of the complexity and variety of 
subsidy programs, a case-by-case analysis represents a more reasonable 
approach than the development of a standardized test for purposes of 
this single program analysis. See e.g., Geneva Steel v. United States, 
914 F. Supp. 563, 593 (CIT 1996) (``Commerce is afforded considerable 
leeway in exacting and applying methodologies to interpret the 
countervailing duty statute.'') In any case, the GOC's proposed 
``three-pronged standard'' would not permit a full analysis of whether 
there are multiple programs or a single program. A complete analysis 
requires examining the details of the program--specific purposes of the 
component parts, eligibility requirements, types of benefits, the 
administering agency, application and approval procedures, and any 
administrative discretion.

[[Page 52413]]

Apparently, the GOC also recognizes these additional factors since, in 
its rebuttal argument in Comment 1, it argues that NISA and its farm-
fed grain provision are one program because NISA offers only one type 
of benefit, one set of eligibility requirements, one administering 
agency, one legislative source, and no administrative discretion. The 
Department has also examined all of these factors with respect to FIPA 
(see FIPA Memorandum) and determined, based on the facts on the record, 
that FIPA's components should be treated as separate programs.
    Comment 6: The GOC argues that the preliminary determination does 
not meaningfully distinguish FIPA from prior cases in which the 
Department has found a single program in a complex, multi-faceted 
statute. The GOC cites Italian Steel, Mexican Roses and Malaysian Wire 
Rod 1 as precedent in which the Department treated a complex set 
of laws as a single program. In those cases, the programs provided 
different types of benefits and delivered them in different forms. By 
contrast, according to the GOC, the FIPA options provide far more 
consistent benefits, namely income stabilization, than in the above 
cases. Furthermore, the GOC argues that in the sixth review of this 
order, the Department determined that the eight revenue insurance 
options under the NTSP constituted a single program. Similarly, all 
FIPA options derive from a single legislative enactment and provide one 
type of assistance, income stabilization. The GOC concludes that these 
parallels lead to the conclusion that FIPA is also a single program.
---------------------------------------------------------------------------

    \1\ Final Affirmative Countervailing Duty Determination and 
Countervailing Duty Order on Carbon Steel Wire Rod from Malaysia (53 
FR 13303; April 22, 1988); Final Affirmative Countervailing Duty 
Determinations on Certain Steel Products from Italy (58 FR 37327; 
July 9, 1993); Results of Remand of Final Negative Countervailing 
Duty Determination: Certain Fresh Cut Flowers from Mexico, pursuant 
to Court Order in Roses, Inc. v. United States, No. 84-5-00632, 
Slip. Op. 90-64 (CIT July 3, 1990).
---------------------------------------------------------------------------

    According to petitioners, the GOC's attempts to place FIPA within 
the context of the analysis used in Mexican Roses and in the sixth live 
swine review are unavailing. For example, the Court reviewing the 
Department's decision in Mexican Roses stated that ``[p]rograms 
bestowing benefits on different enterprises or industries for different 
policy reasons should not escape countervailability simply because the 
programs are loosely grouped under one heading, here FIRA.'' 743 F. 
Supp. at 880. And, regarding the Department's finding with respect to 
NTSP, the GOC ignores that, without the individual Tripartite 
agreements that comprise NTSP, the program would not exist. By 
contrast, petitioners state that FIPA would clearly continue to exist 
even if one of its individual component programs did not. Similarly, 
the NTSP agreements operate the same way for each benefiting commodity, 
while there are clear differences in the operation of the four FIPA 
components.
    Department's Position: We disagree with the GOC. In the FIPA 
Memorandum, we clearly stated why we considered the fact pattern in 
Malaysian Wire Rod and Italian Steel as dissimilar to the fact pattern 
regarding FIPA. In both cases, an overarching program consisted of 
several components. Companies could only obtain benefits from the 
component programs by following the application and eligibility 
requirements established at the overarching program level. Once 
eligible and approved under the overarching program, there was no 
restriction on the type of benefits that could be received under the 
program components. FIPA, on the other hand, allows the federal/
provincial agreements to establish different application and 
eligibility procedures. There is no general eligibility under FIPA, 
which automatically confers eligibility under NISA, NTSP, GRIP, and 
crop insurance. Agricultural producers subject to a NTSP agreement are 
ineligible for either NISA or GRIP unless granted eligibility under the 
relevant NTSP federal/provincial agreement. Furthermore, GRIP and crop 
insurance do not cover hogs or other livestock because their acreage-
based calculations are inherently inapplicable to livestock.
    Also, the GOC's cite to Mexican Roses is not persuasive support for 
finding FIPA a single program. In that case, the Department reaffirmed 
its position that the agricultural sector constitutes more than a 
single group of industries for purposes of determining specificity and 
then found that loans provided to Mexican flower producers granted 
under the Funds Established with Relationship to Agriculture (FIRA) 
were not specific since they were not targeted to exports, nor provided 
to a specific industry or group of industries. Since Mexican flower 
producers only used loans available under FIRA, we had no need to 
address whether the other benefits available under FIRA constituted one 
or several programs. We found that the assistance used by flower 
growers was provided to more than a specific enterprise or industry or 
group thereof. Also, in reviewing this case, the CIT stated that 
individual programs should not escape countervailability simply because 
they are loosely grouped under one heading. See Roses, Inc. v. United 
States 743 F. Supp. 870, 880 (CIT 1990).
    We have treated the eight revenue insurance plans that comprise 
NTSP as one program because, unlike FIPA, we determined that the 
relevant legislation established a framework for providing a single 
type of benefit for a single purpose. Each of the insurance plans 
offered the same types of benefits, had the same application 
procedures, and the same funding mechanisms. Live Swine from Canada; 
Final Results of Countervailing Duty Administrative Review, 59 FR 12243 
(March 16, 1994) (Swine VI) at 12245. Likewise, as even the GOC 
acknowledges, we determined that NISA and its farm-fed grain provision 
were one program since they offered one type of benefit, one set of 
eligibility requirements, one administering agency, one legislative 
source, and no administrative discretion.
    As we explained in the FIPA Memorandum, we determined that the 
facts pertaining to the FIPA programs were more similar to several 
cases where the Department determined to treat a program as several 
components, e.g. Canadian Groundfish, Thai Bearings, and Canadian 
Magnesium.2 For instance, the facts in the FIPA analysis are 
similar to Canadian Groundfish where Economic and Regional Development 
Agreements (ERDAs) provided the legal basis for departments of the 
federal and provincial governments to cooperate in the establishment of 
economic development programs. Pursuant to the ERDA, subsidiary 
agreements were signed which established programs, delineated 
administrative procedures and set up relative funding commitments of 
the federal and provincial governments. We determined that the ERDAs 
acted as umbrella legislation to achieve the broad goal of economic 
development whereas the subsidiary agreements actually provided for the 
operation and administration of the programs. Therefore, for purposes 
of analyzing specificity, we examined each subsidiary agreement as a 
separate program, which the CIT affirmed. See

[[Page 52414]]

Comeau Seafoods vs. United States, 724 F Supp. 1407, 1416 (CIT 1989).
---------------------------------------------------------------------------

    \2\ Final Affirmative Countervailing Duty Determination on 
Certain Fresh Atlantic Groundfish from Canada (51 FR 10041; March 
24, 1986); Final Affirmative Countervailing Duty Determination and 
Partial Countervailing Duty Order on Ball Bearings and Parts Thereof 
from Thailand (54 FR 19130; May 3, 1989); and Final Affirmative 
Countervailing Duty Determinations on Pure Magnesium and Alloy 
Magnesium from Canada (57 FR 30946; July 13, 1992).
---------------------------------------------------------------------------

    Thai Bearings and Canadian Magnesium are also similar to the 
present case. In both cases, a number of different government 
activities were authorized by a broadly encompassing statute. While the 
statute outlined the broad goals and parameters of the legislation, the 
individual component programs were much more specific regarding the 
eligibility requirements, application procedures, and purposes. As a 
result, the Department examined each component program under the 
statute individually. Thus, while the overall goal of FIPA is income 
stabilization, each component has its own specific purpose (e.g., 
NTSP--insurance against market price fluctuations, Crop Insurance--
insurance against weather related disasters, GRIP--gross revenue 
insurance, and NISA--whole-farm income loss protection), its own 
eligibility requirements, its own application and approval procedures, 
and its own administration.
    Thus, the GOC's arguments to the contrary notwithstanding, the 
Department's decision that FIPA should be treated as several separate 
programs is consistent with past cases.
    Comment 7: The GOC argues that pervasive analytical flaws led the 
Department to its incorrect preliminary finding that the FIPA options 
are not integrally linked. First, the GOC argues that the Department 
confuses FIPA's purpose with risk, delivery mechanisms and benefits. 
The GOC argues that purpose is the end to be obtained, which in FIPA's 
case is farm income stabilization. The risks addressed by the FIPA 
options are the reason for stabilization. If the end is income 
stabilization, then the means to that end are crop insurance, revenue 
insurance, and net income stabilization accounts. The Department's 
assertion that FIPA offers different types of benefits is incorrect. 
FIPA offers one type of benefit which is income stabilization in the 
form of financial payments keyed to historical performance. In Swine 
VI, the Department recognized that NTSP, which is a FIPA option, 
provided for ``only one type of assistance, income stabilization (59 FR 
12245).''
    Second, the GOC also argues that the Department translates FIPA's 
policy of equitable treatment into a demand for proof of equal dollar 
payouts. Because the Department could not find such proof on the 
record, it concluded that evidence of FIPA's policy to treat 
commodities equally is inconclusive. This demand for equal dollar 
payouts misconstrues the meaning of FIPA's equitable treatment. 
Furthermore, the GOC claims that equal dollar payouts is impossible 
given the varied nature of the agriculture sector, it would lead to the 
precise type of inequity that FIPA was designed to avoid, and it would 
impose a burden of proof that would be impossible for the GOC to meet.
    The GOC argues that the Department has interpreted the integral 
linkage regulation as including an overriding requirement of explicit 
proof that apparently complementary programs are connected to an 
overall design, through an express statement in their enabling 
legislation or other authoritative source. The GOC argues that in 
applying this factor to FIPA, the Department focused on the 
``complementary purpose'' aspect, and compared NTSP with the other 
programs to ascertain whether basically the same type of assistance is 
being provided to distinct users. The GOC further argues that the 
Department's same program/different users paradigm is too limited and 
that there is no logical or legal reason to limit the complementary 
aspect of related programs to the user groups, and rule out the 
paradigm of complementary programs/same users. Collectively, the FIPA 
components supply what is lacking in each component, and thereby 
produce the equivalent of a single program coverage. Therefore, argues 
the GOC, the Department's view of the meaning of a complementary 
program is more narrow than the term or the regulation warrants.
    The GOC also argues that the Department's preliminary analysis of 
the administration of the programs and the manner of funding 
inappropriately focuses on the day-to-day operational details of each 
option rather than their key design features, which is inconsistent 
with the regulatory considerations. The Department has interpreted the 
administrative and funding factors as calling for similar, if not 
exactly identical, programs. As stated in Swine VI, the integral 
linkage regulation ``does not require that the programs be identical.'' 
Swine VI (51 FR 10041, 10046). However, the Department does not account 
for the fact that at the day-to-day operational level, the 
administration of the FIPA options will necessarily have differences. 
These differences are unavoidable in a program that keys benefits to 
farm income, applies in a country as large and climatically varied as 
Canada, and integrates certain preexisting administrative structures 
into a comprehensive new scheme. They are also unavoidable given the 
different product arrays on Canada's farms and the income risks to 
which these arrays of production are exposed. Furthermore, the GOC 
argues that the preliminary notice neither addresses the industry-
driven reasons for the differences in some program details nor the 
Department's past statement that ``differences between the nature and 
administration of the programs'' will not defeat an integral linkage 
claim if they ``are necessary because of differences in the nature of 
the industries being offered benefits * * *'' Swine VI (59 FR 12246). 
In effect, the focus on operational details creates a different and 
more stringent test than the regulation reasonably permits, and the 
approach is contrary to basic tenets of administrative law.
    Petitioners counter that the GOC's interpretation of the 
Department's integral linkage analysis ignores the Department's well-
established practice, grounded in the legislative history, of 
interpreting the integral linkage test in a stringent manner. 
Petitioners further counter that the GOC's arguments are inconsistent 
with the Department's established interpretation of specificity, 
integral linkage, and the purpose factor in particular. For example, in 
Swine VI, the Department stated that: ``[p]ermitting respondent 
governments to loosely connect two or more programs which are otherwise 
designed to serve different purposes would create just the type of 
loophole the Department seeks to avoid. Besides being contrary to the 
Department's specificity practice, doing so would be contrary to 
Congress' express requirement in the legislative history that the 
Department should avoid taking an `overly narrow' or `overly 
restrictive' view of its authority to determine specificity . . . This 
statement implies that Congress intended the Department to view its 
authority to find specificity broadly and its authority to create 
exceptions to its normal approach narrowly.''
    Petitioners support the Department's finding that the record lacked 
sufficient evidence demonstrating a policy of equal treatment across 
all FIPA program options. The GOC's argument fails principally because 
it ignores the threshold requirement of the integral linkage inquiry, 
that is, that any allegation of linkage must be supported by objective, 
documentary evidence. Given this standard, the Department is entitled 
to demand more than theoretical statements and promises that a program 
should or might, in practice, result in equal treatment.
    Petitioners also counter that the Department is not asking that 
each FIPA participant receive the same amount of benefits, but rather, 
is merely requiring that program funding mechanisms and

[[Page 52415]]

levels establish similar burdens and offer similar rewards. This is a 
reasonable demand given the stringent nature of the integral linkage 
test. It is within the Department's discretion to elaborate on each 
factor listed in the Proposed Regulation, and the integral linkage test 
was intended to be interpreted stringently.
    Finally, petitioners counter that the Department's analysis 
reflects an understanding that the inevitable differences in the FIPA 
programs necessarily require different administrative approaches that, 
in turn, prevent the programs from being identical. Yet even allowing 
for these differences, the Department has concluded that the 
distinctions in program funding and administration are sufficiently 
pronounced to preclude an integral linkage finding. Thus, the 
Department has adequately balanced the record evidence.
    Department's Position: As we stated in the preliminary results, to 
determine whether these programs are integrally linked we examined the 
purposes of each program, the administration of each program, evidence 
of a government policy to treat industries equally, and the funding 
mechanism of each program. In conducting this analysis, we must 
determine whether the respondent government has demonstrated ``through 
objective record evidence that, due to an overall policy or national 
development plan, it created two or more programs with the express 
purpose that they complement one another, not only in terms of breadth 
of availability and coverage, but in similarity of intent, purpose, and 
administration.'' Live Swine from Canada; Final Results of 
Countervailing Duty Administrative Review (59 FR 12243, 12246; March 
16, 1994). Moreover, because the integral linkage policy was created as 
an exception to our specificity analysis, ``we have interpreted the 
standard narrowly for granting an affirmative integral linkage 
determination.'' Id. at 12245.
    Linkage analysis is conducted on a program-by-program basis, to 
determine whether two or more programs can be treated as one program 
for purposes of specificity. The first factor calls for an analysis of 
the purpose of the programs, as stated in the enabling legislation. The 
GOC misconstrues the application of this factor because it claims that 
the stated purpose of FIPA, which is income stabilization, necessarily 
satisfies this criterion. However, in conducting an integral linkage 
analysis, the Department's practice is to examine the stated purpose of 
the alleged complementary programs not the purpose of the umbrella 
legislation enacted to unify the programs. See, e.g., Canadian 
Groundfish at 10041, 10046. Consistent with this practice, we have 
analyzed the purpose of each separate program under FIPA.
    The purpose of crop insurance and a component of GRIP is to protect 
the farmer against the risks of weather-related losses. The purpose of 
the other component of GRIP and NTSP is to protect the farmer against 
the risk of market price fluctuations. The purpose of NISA is to 
stabilize the farmer's overall financial performance. These covered 
risks are prerequisite conditions that trigger the payment. They are 
essential to the design of each separate program.
    The GOC reminds us that in Swine VI, the Department recognized that 
NTSP provided for ``only one type of assistance, income 
stabilization.'' The GOC asserts that FIPA also offers one unique type 
of benefit--income stabilization. As a result, the GOC states that FIPA 
and NTSP offer the same type of benefit.
    We disagree with the GOC. First, as discussed in the FIPA 
Memorandum, FIPA does not directly provide benefits. The benefits are 
provided at the level of NTSP and the other component programs under 
FIPA. Second, the Department has never determined that FIPA and NTSP 
have the same purpose. In Swine VI we accepted ``income stabilization'' 
as the purpose of NTSP because in that review we were examining the 
specificity of NTSP as a single program. In that context, a critical 
examination of the purpose of the program was not necessary. In this 
review, we reexamined the purpose of NTSP in the context of linkage 
analysis. In this analysis, the purpose of the program is a key factor 
in determining whether two or more programs should be considered as 
one. Therefore, the Department scrutinized this factor more thoroughly 
and found that the purpose of NTSP is not income stabilization: the 
purpose of NTSP is to protect the farmer from the risk of market price 
fluctuations.
    We disagree with the GOC's contention that the Department should 
assess the complementary nature of programs under a ``complementary 
programs/same user'' paradigm. If the purpose of the analysis was to 
assess whether all of the farmer's needs were covered under several 
programs, then a ``complementary programs/same user'' paradigm would be 
appropriate. However, the purpose of the specificity test is to 
determine how widely used are the benefits of a certain program. Thus, 
the purpose of an integral linkage analysis is to determine whether two 
or more programs providing the same type of benefit to different users 
can be considered as one program in order to conduct a specificity 
analysis. If the same type of benefit is being bestowed, the users of 
the programs would have to be different. Therefore, for purposes of the 
specificity analysis, we find that the paradigm of ``same benefit/
different users'' is appropriate in establishing whether two separate 
programs should be considered as one for determining specificity. If 
the purpose of the analysis was to assess whether all the farmers' 
needs were covered under several programs, then we would probably use 
the paradigm put forth by the GOC, i.e., ``complementary programs/same 
user.'' However, that is not the nature of the inquiry we are 
conducting here. For example, technology development programs might 
include offering loans, grants and tax credits to companies purchasing 
technology. These programs would complement each other because they 
have the same general purpose and the same users, but a different type 
of benefit would be provided, therefore, the Department would usually 
analyze each program separately. Therefore, for purposes of linkage 
analysis, we are continuing to look for similar programs with different 
users. See, e.g., Zenith Radio Corp. v. United States, 437 U.S. 443, 
450-51 (1978) (deference should be accorded to the Department's 
reasonable interpretations of the countervailing duty statute).
    The second factor calls for ``evidence of a government policy to 
treat industries equally.'' Under this factor the Department examines 
objective, documentary evidence of the existence of such policy. We 
determined that there was insufficient evidence on the record to 
ascertain whether such a policy exists. Far from requiring a ``proof of 
equal dollar pay-outs'', the Department in this case examined the GOC's 
policy statements contained in the FIPA legislation and in the 
Parliamentary debates. We also examined the record for any data 
supporting those policy statements. Such data could have been, for 
instance, a preliminary study comparing different levels of premiums 
with different level of benefits for the various programs, used by the 
drafters of the legislation, or, alternatively, data showing how the 
GOC actually evaluated ``equal treatment'' based on experience under 
the new programs. The GOC could not provide such data. Absent such 
data, the Parliamentary debates and the FIPA legislation cited by the 
GOC fail to demonstrate a government policy of

[[Page 52416]]

equal treatment. As noted in Swine VI at 12246, the supporting evidence 
must go beyond simply identifying a broad underlying goal encompassing 
several otherwise distinct programs which provide access to benefits to 
all or most eligible industries. In the seventh period of review, our 
conclusion was that ``while we recognize that the Parliamentary Debates 
language reflects an intent to treat commodities equally, we have no 
evidence that such a policy has been implemented.''
    We disagree with the GOC that in analyzing the third factor, the 
administration of the programs, and the fourth factor, the manner of 
funding, the Department wrongly focuses on day-to-day operational 
details of each program rather than their key design features. In 
analyzing the administration, we examine whether the administration of 
the programs is consistent with a structure that would allow for the 
same type of benefits to be provided to different users. In analyzing 
the manner of funding, we examine whether the levels of funding and the 
frequency of funding would allow for the same type of assistance to be 
provided to different users in a consistent manner.
    We find that although there are some common features in the 
administration, and funding is provided by the same three sources, the 
federal and provincial governments and the producers, there are 
fundamental differences in the administration and funding mechanisms. 
These differences are due to the diversity of the programs. Each 
program is funded for a specific type of assistance but, more 
importantly, each participant contributes different percentages.
    Comment 8: Petitioners argue that in all three reviews the 
Department should calculate the benefit from the SHARP program based on 
the full outstanding balance in the SHARP fund plus accrued interest. 
According to petitioners, the SHARP deficit accumulated over the life 
of the program due to the chronic imbalance between contributions and 
payouts. Although loans from the Government of Saskatchewan (GOS) to 
finance the deficit were in theory to have been repaid, petitioners 
claim that the size of the deficit makes it likely that deficits 
existed every year, that the provincial government lent money to the 
program every year, and that no repayment was ever made. Thus, 
petitioners argue, the remaining deficit (i.e. the total fund deficit 
minus the amount of the deficit countervailed in the various reviews) 
constitutes a subsidy that has not been countervailed.
    Petitioners further argue that the outstanding principal (deficit) 
should be adjusted upwards to account for interest accrued since 
October 31, 1989. In doing so, petitioners take issue with the 
Department's statement in the preliminary results that ``when the 
balance in the SHARP account was insufficient to cover payments to 
producers, the provincial government provided financing on commercial 
terms.'' On the contrary, petitioners point out, the SHARP annual 
report states that no interest was charged on these loans subsequent to 
October 31, 1989. Therefore, the Department should add accrued interest 
to the outstanding principal amount.
    The CPC counters that the same argument was made by petitioners and 
rejected by the Department in the sixth review, and therefore should 
also be rejected in these reviews, given that petitioners have 
presented no new evidence on this topic. As a result, the Department 
should continue to base its calculation of the SHARP benefit on one-
half of the outstanding deficit during the seventh and eighth reviews. 
According to the CPC, the ninth review, during which a final decision 
was made on the disposition of the deficit, is the first appropriate 
point for an examination by the Department as to whether the loan 
forgiveness constitutes a countervailable subsidy. With respect to this 
issue, the CPC argues that the deficit represents payments already made 
to hog producers and already countervailed.
    Department's Position: We disagree with petitioners that the full 
amount of the SHARP deficit should be countervailed in these reviews. 
The deficit is a result of loans provided to SHARP by the provincial 
government to cover payouts when the fund balance was at zero. As such, 
the deficit amount represents payments already made to producers. We 
have previously countervailed one-half of all SHARP payouts during 
prior reviews of live swine. See e.g., Swine VI, at 12260. Thus, to the 
extent that one-half of the payment amount (i.e., the amount attributed 
to provincial government contributions) was countervailable under the 
Department's methodology, the Department has in fact already 
countervailed one-half of the deficit in previous reviews, when the 
payments to the producers were made. To calculate the benefit in these 
reviews based on the entire amount of the deficit, as petitioners have 
suggested, would be to countervail twice the amount of provincial 
government contributions. The CPC's argument not to countervail any of 
the deficit amount is equally flawed. The CPC recognizes, based on its 
own figures, that the Department has countervailed only half of the 
previous payments made to hog producers that the deficit represents. 
Therefore, our decision to calculate the benefit to swine producers 
based on one-half of the deficit amount remains unchanged whether the 
benefit is represented by the accumulated interest on the unpaid 
deficit (seventh and eighth reviews) or by the forgiveness of the 
outstanding deficit amount (ninth review).
    Furthermore, we disagree with petitioners that interest accrued 
since 1989 should be added to the outstanding principal amount (i.e., 
the deficit) to derive the full amount treated as a grant in the ninth 
review. In previous reviews, the Department relied on the GOS's 
statement that ``financing was provided on commercial terms.'' During 
the sixth review, when it became clear that interest on the loans to 
the SHARP fund stopped accruing in 1989, the Department countervailed 
this interest benefit. Swine VI at 54118. However, when the Department 
first examined the SHARP deficit in the sixth review, the disposition 
of the principal remained uncertain, thus allowing for the possibility 
that the loans would be repaid (See March 2, 1994 Memorandum for 
Barbara E. Tillman from team regarding Calculation Methodology for 
SHARP, on file in the public file of the CRU). For this reason, we 
determined that conducting a benefit analysis of the deficit was 
unwarranted. Swine VI at 12260. Therefore, the Department determined 
that the most appropriate methodology to account for the interest 
benefit was to treat the deficit as a non-interest bearing short-term 
loan and to expense the benefit during the review period. Swine VI at 
12260. We followed this methodology in the seventh and eighth review 
periods because there had still been no final decision on how to deal 
with the deficit. Adding accrued interest since 1989 to the outstanding 
principal amount treated as a grant in the ninth review, other than the 
interest which accrued during the ninth review period before the 
deficit was written off, would be inconsistent with the methodology 
followed in Swine VI and would countervail twice the interest benefit 
for the period covered by the sixth, seventh, and eighth reviews. 
Therefore, we determine that accrued interest since 1989 should not be 
added to the outstanding deficit amount to calculate the amount of the 
grant bestowed in the ninth review. However, we have added to the 
written off deficit, treated as a grant in the ninth review, the amount 
of

[[Page 52417]]

interest accrued from the beginning of that review period until the 
date on which the deficit was written off. (See also, Department's 
Position on Comment 10).
    Comment 9: Petitioners argue that the Department should use a 
medium-term interest rate to calculate the SHARP benefits for the 
seventh and eighth review periods. According to petitioners, the 
Department's choice of a short-term rate, normally defined as a rate 
for a loan with a maturity of one year or less, is unsupported by the 
record. To the contrary, state petitioners, evidence on the record in 
the seventh and eighth reviews regarding the uncertainty of the 
treatment of the SHARP deficit more readily supports the use of a 
medium-term benchmark for calculating the respective interest benefits, 
as it reflects more accurately that a range of possible outcomes 
existed.
    The CPC argues that the Department's selection of a benchmark 
interest rate is consistent with the methodology followed in the sixth 
review. Not until the ninth review was a final decision made on the 
deficit. The CPC asserts that no new information was available to the 
Department in the seventh and eighth reviews, and that nothing on the 
record supports petitioners' suggestion that a medium-term rate would 
be more accurate than the short-term rate the Department has chosen.
    Department's Position: We agree with the CPC. To calculate the 
benefit to hog producers from the outstanding balance of the deficit, 
the Department has treated the deficit as a short-term loan Swine VI at 
12260. As we stated in the Department's Position on Comment 8, it is 
appropriate to use our short-term loan methodology for this purpose 
because the possibility existed, from one review period to another, 
that the GOS would make a final decision on the disposition of the 
deficit. Indeed, petitioners correctly point out that there is no 
information on the record in the seventh or eighth review indicating 
what would happen to the deficit during the next review period. 
Therefore, we determine that a short-term rate is still the most 
appropriate benchmark to calculate the interest benefit on the deficit.
    Comment 10: Petitioners argue that, if the Department continues to 
use a short-term benchmark to calculate the SHARP benefit, it should 
use rates published by the International Monetary Fund (IMF), rather 
than by the Organization for Economic Cooperation and Development 
(OECD), as OECD rates underestimate the benefit provided to swine 
producers. Petitioners point out that IMF short-term lending rates 
``that chartered banks charge on large business loans to their most 
credit-worthy customers,'' presumably the most attractive rates 
available, are consistently higher than the OECD rates used by the 
Department. Therefore, according to petitioners, use of OECD rates is 
inconsistent with the Department's expressed preference for relying on 
``typical'' or commercially available rates.
    The CPC points out that the Department has previously used OECD 
rates (in the sixth review), which are provided to the OECD by the GOC 
and are based on Bank of Canada statistics. Therefore, the CPC 
concludes that petitioners' argument is without merit.
    Department's Position: We have reexamined the OECD-published 
interest rates for Canada used in our preliminary results and 
determined that they are not appropriate to use as benchmark rates for 
purposes of our calculations. Though provided by the Bank of Canada, as 
the CPC correctly points out, the OECD rates that the Department used 
represent chartered banks' interest rates payable on 90-day deposit 
receipts. As such, they are not appropriate to use as benchmarks for 
commercial loans. Petitioners are, therefore, correct in their 
assertion that the lending rates published by the IMF are more 
appropriate than the OECD deposit rates. Therefore, in the seventh, 
eighth, and ninth review periods, we have modified our calculations, 
using short term lending rates published by the IMF rather than the 90-
day deposit receipts rate published by OECD.
    Comment 11: Petitioners claim the Department has underestimated the 
benefit to hog producers resulting from the write-off of the SHARP 
deficit at the end of the ninth review period. According to 
petitioners, because the loans were forgiven on the last day of the 
review period, the Department's treatment of the loan forgiveness as a 
non-recurring grant, allocated over three years, does not account for 
the additional benefit in the form of interest not accruing on the 
outstanding loan balance. Petitioners argue the Department should 
modify its calculations to reflect this additional benefit.
    Department's Position: Section 355.44 (k) of the Proposed 
Regulations states that the forgiveness by a government of an 
outstanding debt obligation confers a countervailable benefit equal to 
the outstanding principal and accrued unpaid interest at the time of 
the forgiveness. Because the deficit represents, in effect, an interest 
free loan, it is appropriate to include as part of the derived grant 
value, the amount of interest accrued at the time when the deficit was 
written off. Such an approach is consistent with our methodology in the 
seventh and eighth reviews, in which we calculated as the benefit the 
amount of interest which should have been paid. Accordingly, we have 
modified our calculations for the ninth review period and are adding to 
the deficit the amount of interest accrued during the review period up 
to the date on which the SHARP deficit was written off. Consistent with 
our prior practice in this case, and as explained in the Department's 
Position on Comment 8, we are treating one-half of the deficit amount 
as a non-recurring grant. We have allocated the total grant amount 
(i.e., one-half of the deficit amount, which equals the provincial 
government's contribution, plus the accrued interest) over three years, 
the average useful life of assets in the live swine industry.
    Comment 12: Petitioners disagree with the Department's source of 
feed and grain consumption information used to calculate the benefit 
from the ACBOP program. According to petitioners, the Department had 
available on the record in the seventh review the C.R.D. study, a 
recent comprehensive source of feed and grain consumption information 
published by Alberta Agriculture. This document, assert petitioners, 
provides a better reflection of feeding practices of hog producers in 
Alberta than the unpublished survey relied upon by the Department, 
which presumably represented more accurate information than that used 
in prior reviews. The Department should therefore use data from the 
C.R.D. study, which would allow it to calculate more accurately 
complete swine diets, including the significant quantity of grain 
consumed by sows and boars.
    The CPC argues that the Department appropriately used specific and 
detailed data on hog grain consumption that was verified extensively. 
According to the CPC, petitioners have ignored this detailed and well-
documented record and have instead recycled an argument that the 
Department rejected in the sixth review. The CPC maintains that 
petitioners' preferred source, the C.R.D. study, does not contain all 
of the information necessary for the calculations. The purpose of such 
studies, argues the CPC, is to provide producers with data on possible 
alternatives to standard practices. Accordingly, the Department should 
continue to employ the ACBOP calculation methodology used in the 
preliminary results.

[[Page 52418]]

    Department's Position: The Department has analyzed the C.R.D. study 
referred to by petitioners and determined that it is not as 
comprehensive as petitioners assert. The study does not include 
information about the composition of ``starter'' diets, which is 
necessary to the ACBOP calculation. By contrast, the information relied 
upon by the Department, taken from the Jaikaran study of hog diets and 
feed consumption, contains data on feed consumed during both the 
``creep'' and ``starter'' phases, as well as during the later stages of 
hog growth. Indeed, the Department examined the summary of the results 
of the Jaikaran study at verification and found that the document 
reflects the feed consumed, pigs' weight gain, percentage of grain in 
the feed, and feed-to-grain ratios for each stage of growth. See 
Verification Report at 32. Thus, the study used by the Department 
represents the most complete available source of information necessary 
for the ACBOP calculation methodology. The Department's reliance on the 
Jaikaran study as the source of feed and grain consumption information 
therefore remains unchanged.
    Comment 13: Petitioners argue that the Department's preliminary 
determination to classify the New Brunswick Hog Price Stabilization 
program as ``terminated'' is inconsistent with its decision to monitor 
the program until 1999 using a ten-year allocation period as stated in 
the Memorandum from The Live Swine Team to Barbara E. Tillman regarding 
Termination of New Brunswick Hog Price Stabilization Program, May 15, 
1996 (Stabilization Plan Memo). However, petitioners agree that three 
years reflects the useful life of the assets in the hog industry and 
that this period is the appropriate measure for allocating grants in 
these reviews. To the extent the Department relies on the three-year 
allocation period, its arguments do not apply.
    Department's Position: We acknowledge the discrepancy between the 
Stabilization Plan Memo and the Department's position in the 
preliminary results. According to the Internal Revenue Service tables, 
the average useful life of the assets in the hog industry is three 
years; therefore, the correct allocation period is three years rather 
than a ten-year period as indicated in the Stabilization Plan Memo. 
Because the program was terminated on March 31, 1989, the last year in 
which benefits could have been used by swine producers was 1991-92. 
However, New Brunswick did not export to the United States during that 
period. Therefore, as stated in our preliminary notice, we consider 
this program to be terminated, and will not continue to monitor this 
program.
    Comment 14: Petitioners argue that the Department should reclassify 
the Prince Edward Island Pro Pork Assistance Program (Pro Pork Program) 
and the Cash Flow Enhancement Program (CFEP) from ``programs 
preliminarily found not to confer subsidies'' to ``programs not 
benefitting the subject merchandise.'' According to the petitioners, 
the Pro Pork Assistance Program is de jure specific to hog producers, 
and hence, countervailable as a matter of law. The program is similar 
to the Ontario Pork Industry Improvement Program, which the Department 
has countervailed in previous Live Swine reviews. (Swine VI at 54120). 
However, to the extent the Department continues to view the program's 
alleged emphasis on slaughter hogs as a reason for not countervailing 
Pro Pork benefits in the seventh period of review, it should, at a 
minimum, recognize that its decision is only factual, and conclude 
merely that the program does not benefit the subject merchandise. This 
classification of the Pro Pork program in this manner will allow the 
Department to countervail the program in the future in the event that 
it finds that benefits are available to live swine.
    Likewise, petitioners argue that the Department improperly 
determined that the CFEP advances do not provide countervailable 
benefits to hog producers because the advances are tied to products 
other than the subject merchandise. Petitioners contend that finding 
that benefits are not tied to the subject merchandise is different from 
finding that benefits are not countervailable per se. Indeed, the 
Department did not engage in a definitive specificity analysis to 
determine whether CFEP benefits could be countervailed. Under these 
circumstances, the Department should not have classified CFEP advances 
with programs for which it had expressly made a non-countervailability 
finding.
    The CPC rebuts petitioner's comments stating that the Department is 
only required to determine whether or not subsidies are received by 
producers of the subject merchandise. Once the Department has 
determined that a program does not benefit the subject merchandise, its 
practice is to conclude that the program is found not to confer 
subsidies.
    Department's Position: We disagree with petitioners with respect to 
our classification of both programs. We determined that the Pro Pork 
Program requires producers to have their entire swine production 
slaughtered in Prince Edward Island or New Brunswick and payments are 
made only on dressed pork after slaughter. Therefore, live swine 
exported to the United States are not eligible for and cannot receive 
assistance under this program. The Pro Pork Program is distinguishable 
from the Ontario Pork Industry Improvement Program; this program 
provided grants to Ontario live swine producers to enable them to 
improve their productivity, profitability, and competitive position. As 
such, live swine exported to the United States were not precluded from 
receiving assistance under the program. Regarding the CFEP, cash 
advances are limited by the statute to farmers who produce crops for 
sale and not for consumption on the farm. Therefore, a farmer that uses 
crops to raise hogs cannot qualify for or receive cash advances under 
this program. Accordingly, we determined that CFEP did not provide a 
countervailable subsidy to the subject merchandise. Thus, in accordance 
with our practice, we determine that neither program confers 
countervailable subsidies on the subject merchandise.
    Comment 15: Petitioners argue that the Department has 
underestimated the benefits received under FISI. According to the 
petitioners, the Department's preliminary calculations fail to 
recognize that payments to swine producers under FISI are not limited 
to so-called ``compensations,'' but also include advances; both forms 
of FISI payments provide the same overall type of benefit to Quebec hog 
farmers. The Department should modify its FISI calculation methodology 
to include both compensation payments and advances made to hog 
producers during the period of review. Further, the petitioners argue 
that the Department should countervail FISI payments on a cash basis 
rather than on an accrual basis.
    According to the GOQ, adding advances to compensation payments 
would lead to double-counting, because advances are already accounted 
for in the total compensation figures used in the calculations. The GOQ 
states that the Department verified that the figures used in the 
seventh review calculations include compensation and advance payments 
to hog and piglet producers during the period of review. The GOQ 
further states that the figures used in the eighth and ninth reviews as 
FISI payouts in the calculations also account for advance FISI payments 
to hog and piglet producers.
    With respect to whether the Department countervails FISI payments 
on a cash basis or on an accrual basis,

[[Page 52419]]

the GOQ counters that the Department has in fact used in its 
calculations FISI payment figures recorded on a cash basis. Therefore, 
the Department does not need to make any changes to the calculations of 
the alleged FISI benefits to producers.
    Department's Position: We disagree with the petitioners. At 
verification in the seventh review, we noted that advance FISI payments 
are accounted for in the total compensation figures. (See 
Countervailing Duty Order on Live Swine from Canada: Verification 
Report (Public Version) dated June 8, 1994, on file in the Central 
Records Unit, Room B-099, of the Main Commerce Building (Verification 
Report) at 47-48.) Similar figures were submitted in the eighth period 
of review. Further, information submitted in the questionnaire 
responses for the eighth and ninth reviews, indicates that to calculate 
the amount to be paid out to producers covered under FISI at the end of 
the period, the Regie subtracts FISI advances from total compensation. 
FISI advances do not increase the total compensation amount. (See 
February 28, 1994 Questionnaire Response at page III-10, 11; February 
27, 1995 Questionnaire Response at VI-700.) Therefore, the Department 
has appropriately accounted for advance FISI payments to swine 
producers in the seventh, eighth and ninth reviews in its calculations.
    With respect to the petitioners' claim that the Department should 
countervail FISI payments on a cash rather than accrual basis, it is 
the Department's normal practice to calculate FISI benefits using 
figures recorded on a cash basis. In the seventh review, the Department 
verified the cash-based figures reported in the questionnaire response. 
The discussion at verification regarding cash versus accrual was only 
for the purpose of reconciling data submitted in the questionnaire 
responses to the Regie's financial statements which are maintained on 
an accrual basis. (See Verification Report at 47.) In the seventh 
review calculations, we used FISI payment figures on a cash basis as 
provided in the questionnaire response. In the eighth and ninth 
reviews, we were consistent and have used the cash basis figures as 
provided in the record of those reviews. Therefore, the Department has 
appropriately calculated the FISI benefits using figures reported on a 
cash basis of accounting.
    Comment 16: The petitioners argue that the Department has 
underestimated the benefits from the FISI program because it failed to 
address the accumulated deficit in the FISI account. According to the 
petitioners, because payments to producers have exceeded ordinary FISI 
scheme funds, the swine funds have incurred deficits financed by the 
GOQ. Therefore, the petitioners state that the GOQ's funds have 
accounted for well over two-thirds of the program funding, and the 
producer funds for well under one-third of total payouts. The 
petitioners argue that in order to derive the most accurate FISI 
benefit calculation, it is essential that the Department not impute 
more than the amount actually contributed by producers during the 
instant reviews or any future review periods to the producer 
contributions. The petitioners further argue that because the 
Department has consistently assumed that one-third of all FISI payments 
to producers have come from producer contributions, the deficit which 
has been financed entirely by the GOQ, has only been partially 
countervailed in past reviews. Thus, the petitioners urge the 
Department to countervail as an additional amount of FISI benefits the 
remaining portion of the deficit that has not been countervailed in any 
previous reviews.
    The GOQ states that it is the Department's well-established 
practice not to investigate deficits in stabilization insurance plans 
unless and until those deficits are forgiven or interest ceases to 
accrue. According to the GOQ, the deficits to the hog and piglet FISI 
accounts have not been forgiven, and there is no indication in the 
records of the instant reviews that the deficits would be forgiven. 
Further, the GOQ states that the FISI accounts in deficit continue to 
accrue interest.
    Department Position: We disagree with the petitioners. The 
Department's practice is to countervail a benefit only when it affects 
the recipient's cash flow. Section 355.48(a) of the Department's 
Proposed Regulations specifically states that ``the cash flow and 
economic effect of a benefit normally occurs when a firm experiences a 
difference in cash flows, either in payments it receives or the outlays 
it makes, as a result of its receipt of the benefit.'' See also Final 
Affirmative Countervailing Duty Determination: Grain Oriented 
Electrical Steel from Italy, (59 FR 18357, April 18, 1994), and Final 
Results of Reviews: Industrial Phosphoric Acid from Israel, (56 FR 
50854; October 9, 1991).
    The existence of a deficit in the FISI account balance does not 
necessarily constitute a countervailable benefit to the producers. For 
instance, when the Department found in the sixth review of this order 
that the SHARP program terminated with a deficit and that interest on 
the loans resulting in the deficit had stopped accruing, the Department 
found that the only benefit to the producers at that time was accounted 
for by the non-accrual of interest on the outstanding balance. See 
Swine VI at 26884.
    In these reviews, there is no evidence that demonstrates any cash 
flow impact on the producers as a result of the deficit. The amount of 
pay-outs received is not affected by the deficit. As indicated in 
several record documents (see, e.g., the complementary notes to the 
Regie's Financial Statements, February 27, 1994 questionnaire response 
at VI-692) and discussed in the preliminary results of these reviews, 
whenever the balance in the FISI account is insufficient to make 
payments, the GOQ lends the needed funds to the Regie. These advances 
are subject to repayment by the Regie and accrue interest (see, e.g., 
line item ``interest on loan'' in the income statements of the FISI 
fund in the ninth review questionnaire response, February 27, 1994 at 
VI-689). These loans are properly recorded on the books of the Regie, 
because they represent a liability of the Regie. The record of each 
review shows that premiums paid by producers are not reduced by these 
loans. Premiums are adjusted each year to account for the debt burden, 
including financing expenses, under each FISI scheme. These adjustments 
permit the Regie to finance any debt and its related financing expense 
one-third through producer assessments, and two-thirds through 
provincial contributions. Thus, unlike the deficit in the SHARP 
program, the FISI account deficit has not been written-off and interest 
has not stopped accruing. Accordingly, we have not taken into 
consideration the deficit in the FISI account in calculating the 
benefit to swine producers in these three periods of review.
    Comment 17: The GOQ argues that the Department cannot rely upon its 
decision in the sixth review to determine that FISI is countervailable 
in these reviews (seventh, eighth, and ninth). The GOQ argues that the 
Department's sixth review results do not establish administrative 
practice because the sixth review results are in direct conflict with 
the administrative practice established in Final Affirmative 
Countervailing Duty Determination; Fresh, Chilled and Frozen Pork from 
Canada, 54 FR 30774, 30779 (July 20, 1989) and the fourth and fifth 
reviews of Live Swine. In those proceedings the Department found in 
remand determinations that FISI is not countervailable. One 
determination that is in direct conflict with three other

[[Page 52420]]

prior determinations cannot, by itself, establish an administrative 
practice.
    The GOQ further argues that the Department's reasoning with respect 
to FISI in the sixth review is based upon an irrational methodology 
that is contrary to the record in these reviews. The finding that FISI 
was specific in the sixth review was based entirely on the Department's 
determination that Quebec's agricultural universe consisted of more 
than 80 products. The mere counting of commodities is an irrational and 
improper method for determining specificity and the methodology that 
the Department used to derive the 80 commodities was completely 
arbitrary. They also argue that any rational analysis of the evidence 
on the record of the seventh, eighth and ninth reviews would indicate 
an agricultural universe that is substantially smaller than ``more than 
80 commodities'' in Quebec.
    Finally, the GOQ claims that in the eighth and ninth reviews, 
Quebec issued explicit guidelines with respect to creating FISI schemes 
for new products that removes any discretion from the Regie that might 
have existed and that may have led to the Department's conclusion that 
FISI is specific and, therefore, countervailable.
    Department's Position: The Department determined in Swine VI that 
the FISI program was countervailable and that decision was not 
challenged by any party to that proceeding. It is well-established that 
where the Department has determined that a program is (or is not) 
countervailable, it is the Department's policy not to reexamine the 
issue of that program's countervailability in subsequent reviews unless 
new information or evidence of changed circumstances is submitted which 
warrants reconsideration. See, e.g., Industrial Phosphoric Acid from 
Israel; Final Results of Countervailing Duty Administrative Reviews, 61 
FR 28841 (June 6, 1996), and Industrial Phosphoric Acid from Israel; 
Preliminary Results of Countervailing Duty Administrative Reviews, 61 
FR 8255 (March 4, 1996). The United States Court of International Trade 
(CIT) upheld this practice in PPG Industries, Inc. v. United States, 
746 F. Supp. 119 (CIT 1990) (PPG Industries). In PPG Industries, the 
court ruled that ``Commerce has discretion in deciding whether to 
investigate a program previously found not countervailable (or 
countervailable) in a final agency determination; in reaching its 
decision Commerce is entitled to draw upon its own knowledge and 
expertise and facts capable of judicial notice.'' Id. at 135.
    The GOQ is aware of the Department's policy not to reexamine the 
countervailability of a program absent new information or changed 
circumstances. The Department has clearly communicated the application 
of this policy throughout the seventh, eighth, and ninth reviews, in 
which the Department's questionnaires stated clearly that, ``absent new 
information or evidence of changed circumstances, we do not intend to 
examine the countervailability of programs previously found to be 
countervailable.'' This standard language, which reflects the 
Department's practice, is included in every questionnaire used in CVD 
administrative reviews.
    The GOQ's claim that the Department's decision on FISI in the sixth 
review is in conflict with the administrative practice established in 
the remand determinations in Fresh, Chilled and Frozen Pork from Canada 
and the fourth and fifth reviews of Live Swine is misplaced. In those 
determinations upon remand, the Department complied with panel 
decisions that requested the Department to reconsider certain aspects 
of the underlying methodology used in those determinations, 
respectively. The panel's decisions are binding only on the proceeding 
which is under panel review and therefore are not of precedential 
value. None of those remand determinations established any overriding 
policy which was adaptable to other reviews based upon different 
administrative records.
    In the instant reviews, the GOQ has presented no new evidence on 
the record which would warrant reconsideration of the Department's 
determination in Swine VI that FISI is countervailable. Because there 
is no new information or evidence of changed circumstances, the 
Department has not reexamined the countervailability of the FISI 
program. To do so would be inconsistent with the Department's long-
standing practice, which has been duly articulated in these reviews.
    The GOQ's argument that specific guidelines issued by Quebec 
removed any discretion from the Regie that might have existed with 
respect to conferring FISI benefits is insufficient to reopen our 
inquiry. As discussed in detail in Swine VI, we did not base our 
determination that FISI is de facto specific on evidence that the GOQ 
exercised discretion in determining which products receive schemes. 
Swine VI at 12254. Rather, our determination, reached after an 
examination of all factors, was based upon the small number of actual 
users in relation to the universe of eligible beneficiaries. This 
finding alone warranted an affirmative determination of de facto 
specificity (Swine VI at 12252), and there has been no increase in the 
actual number of users of FISI. Therefore, a change in the amount of 
discretion exercised by the GOQ does not constitute new information 
sufficient to warrant reexamination of our determination.
    The GOQ has also made arguments that the Department's decision in 
Swine VI was in error. While there are fora in which the GOQ could have 
made such challenges, as noted above, the parties to that proceeding 
did not avail themselves of that opportunity.
    Comment 18: The GOQ disagrees with the Department's preliminary 
determination that FISI, crop insurance and supply management are not 
integrally linked. Citing the Proposed Regulations at section 
355.43(b)(6), the GOQ notes that, because there is no prescription in 
the regulations as to what the answers to each integral linkage 
criterion ought to be, the Department should find programs to be 
integrally linked if it determines that two or more programs are 
intended to accomplish the same ultimate end and, in doing so, treat 
industries equally, even if the means to accomplish those ends are 
somewhat different. According to the GOQ, a requirement that the means 
also be the same as the end would make the integral linkage provision 
meaningless, because, in effect, such a requirement would mean that the 
programs must be identical. The GOQ notes that this is in direct 
conflict with explicit statements made by the Department that programs 
need not be identical to be integrally linked. Such a requirement would 
also directly conflict with the rationale for the integral linkage 
regulation, which the GOQ states is to avoid finding programs that 
benefit a broad section of the economy countervailable simply because, 
for political or technical reasons, a government set out to accomplish 
the same result through two or more complementary but not identical 
programs. Using this test, the GOQ claims that FISI, crop insurance and 
supply management are integrally linked because these three programs 
provide comprehensive insurance against the risks to which Quebec 
farmers are subject.
    According to the GOQ, the Department found in the preliminary 
results that the administration and manner of funding for FISI and Crop 
Insurance are similar and that the evidence with respect to equal 
treatment was inconclusive; the Department reached the conclusion that 
FISI and Crop Insurance are not linked only because it improperly 
determined that the purposes of the programs are

[[Page 52421]]

different. According to the GOQ, FISI and Crop Insurance serve exactly 
the same purpose, stabilizing farmers' income, using different methods, 
namely insuring farmers against the various risks inherent in farming. 
The GOQ argues that the Department reached the wrong conclusion because 
it confused method with purpose; the GOQ defines the purpose as the 
``common result'' of FISI and Crop Insurance, i.e. income 
stabilization.
    To demonstrate that the two programs are ``complementary parts of 
an overarching governmental policy directive,'' the GOQ cites to the 
legislative history of FISI and Crop Insurance, pointing out that the 
Quebec's legislature explicitly tied FISI and Crop Insurance together 
as complementary parts of the government's overarching policy of 
insuring income stability in the agricultural sector. According to the 
GOQ, FISI and Crop Insurance accomplish this goal through similar 
methods.
    With respect to the other factors involved in linkage analysis, the 
GOQ points out that the administration of FISI is identical to that of 
Crop Insurance; that the two programs share the same source of funding, 
accounting system, and personnel; and that each producer has 
approximately the same ratio of its income at risk, whether they 
participate in FISI or Crop Insurance, or both.
    The GOQ also states that FISI and Crop Insurance are integrally 
linked with Supply Management. All three plans share the same purpose 
(farm income stabilization), similar methodology (per unit price based 
on cost of production), and treat all farmers equally by insuring that 
they all receive an income from agriculture that provides them a 
reasonable rate of return over their cost of production.
    Petitioners take issue with the GOQ's broad interpretation of the 
purpose factor of the integral linkage provision; in the petitioner's 
view, the GOQ ignores the Department's practice of interpreting the 
integral linkage provision narrowly in order to prevent subsidizing 
governments from creating a loophole to insulate otherwise actionable 
programs. Petitioners also argue that the GOQ understates the 
significance of the different risks associated with FISI, crop 
insurance, and supply management, failing to recognize that such risks 
are central to the purpose of the programs. Furthermore, petitioners 
find that the GOQ overstates the significance of FISI's legislative 
history when the GOQ concludes that statements made by Quebec 
legislators regarding the similarities of FISI and crop insurance 
render the programs complementary. Petitioners argue that such 
statements do not constitute the type of documentary evidence 
contemplated by the Department's regulations. See Swine VI at 12,246. 
With respect to the funding and the administration of these programs, 
petitioners state that the Department has reasonably weighed the 
factual evidence relating to these factors and properly concluded that 
such evidence is insufficient to meet the integral linkage test.
    Department's Position: We disagree with the GOQ's argument that we 
incorrectly analyzed whether FISI, Crop Insurance, and Supply 
Management are integrally linked. The integral linkage policy 
constitutes an exception to our specificity analysis. Swine VI at 
12,246. The Proposed Regulations require the Department to ``determine 
the specificity of a program * * * solely on the basis of the 
availability and use of the particular program in question.'' The 
specificity test was designed to avoid carrying the countervailing duty 
law to absurd results by countervailing government actions or programs 
such as public highways and bridges which clearly benefit the economy 
at large. In implementing the appropriate standard to determine whether 
to permit a particular exception to the program-by-program approach of 
the specificity test, however, the Department cannot create a loophole 
which would allow de facto specific subsidy programs benefitting only 
particular segments of the economy--or particular segments of the 
agricultural sector--to escape the imposition of countervailing duties. 
``Permitting respondent governments to loosely connect two or more 
programs which are otherwise designed to serve different purposes would 
create just the type of loophole the Department seeks to avoid.'' Swine 
VI at 12,246.
    As we stated in the preliminary results, to determine whether these 
programs are integrally linked, in accordance with the criteria 
established in section 355.43(b)(6) of the Department's Proposed 
Regulations, we examined the purpose of each program, the 
administration of each program, the record evidence of a government 
policy to treat industries equally, and the funding mechanism of each 
program. See Memorandum for Paul J. Joffe from The Team on Farm Income 
Stabilization Insurance--Integral Linkage, dated May 15, 1996, filed in 
the public file in the Central Record Unit, Room B-099, Main Commerce 
Building (Decision Memorandum).
    With respect to the purpose of the programs, we clearly defined the 
Department's interpretation of what constitutes the purpose of a 
program and identified the two steps of our analysis: (1) we began by 
looking at the purpose of each program as described in the enabling 
legislation and (2) we then examined FISI, Crop Insurance, and the 
Supply Management programs to ascertain whether they are complementary 
programs within the meaning of the test articulated in the sixth 
review, i.e. whether ``basically the same type of assistance is being 
provided to distinct users/commodities or groups of users/
commodities.'' (emphasis added). (Decision Memorandum, at 5).
    The evidence in the record does show that FISI and Crop Insurance 
are part of ``an overall government policy or national development 
plan,'' (see Carbon Steel Wire Rod from Saudi Arabia; Final Results of 
Administrative Review and Revocation of Countervailing Duty Order, 59 
FR 58814, 58817). The legislative history of the Farm Income 
Stabilization Act indicates that the Canadian government intended the 
programs to serve as a means for achieving a broad goal of income 
stabilization in the agricultural sector. However, in integral linkage 
analysis, mere evidence of general legislative intent connecting 
various programs is not dispositive. In fact, broad legislative goals 
can be achieved through a wide variety of programs. Therefore, in 
determining whether programs are ``integrally linked'' such that they 
should be viewed as a single program for specificity purposes, we also 
look to see whether a specific purpose, i.e., to provide a certain type 
of assistance, is shared by several programs which complement each 
other by reaching different users.
    We concluded that there is no similarity of purpose between FISI 
and Crop Insurance, providing, as they do, protection against different 
types of risks (one against market-price fluctuations and the other 
against weather-related disasters). However, there is some similarity 
in purpose between FISI and the supply management programs in that they 
both protect a farmer's income against losses due to fluctuations in 
market price.
    With respect to the administration of the programs, we found that 
there are differences among the programs, which are directly related to 
the different purposes of the programs themselves. We found that FISI 
and Crop Insurance operated in similar but not identical ways, as the 
GOQ states in its brief. Both FISI and Crop Insurance are structured

[[Page 52422]]

as insurance programs and are administered by the same agency; the 
procedures to calculate the amount of compensation are similar, in some 
instances even correlated. Differences appear to be related to the type 
of coverage offered by each program. In contrast, Supply Management has 
a totally different administration system. The Supply Management 
Programs operate on a national, as well as provincial level, because 
they require the cooperation of producers in all provinces, and are 
administered independently of FISI and Crop Insurance.
    With regard to the evidence of a government policy to treat 
industries/commodities equally, we concluded that because of the 
differences between the programs, often not quantifiable, our analysis 
of the record evidence yielded inconclusive results. The actuarial 
study submitted by the GOQ in support of the claim of equal treatment 
was not sufficiently detailed to support this conclusion because the 
data contained in that study was finalized only for ``vegetable 
schemes''. The analysis of the livestock data was only preliminary and 
did not break out information pertaining to live swine. Therefore, no 
information on this factor was provided on the subject merchandise. 
Furthermore, this study does not provide the basis for a meaningful 
analysis of ``equal treatment'' of the agricultural commodities 
produced in Quebec under this program for several reasons, among them 
the fact that it does not provide information about individual 
commodities. The study is based on an analysis of the amount that the 
farmer has at risk; this can be one of the factors but not the only 
factor we examine in this type of analysis. Additionally, the record 
presents information inconsistent with the results of that study. For 
instance, the GOQ's share of premium payments was not the same in the 
two programs and GOQ officials acknowledged at verification that 
benefits to producers under supply management were greater than those 
provided by FISI. The GOQ's comment that under FISI and Crop Insurance 
each producer has approximately the same ratio of its income at risk 
relies on the same actuarial study and therefore presents the same 
evidentiary deficiencies.
    Finally, with respect to the manner of funding, we found that the 
three programs use two different funding mechanisms: FISI and Crop 
Insurance are premium funded, with the government and the producers 
sharing the costs. Under the federal Supply Management programs, there 
is no direct provision of government funds: farmers pay for the direct 
costs of operating the program through levies on the sales of their 
products.
    Based on our detailed analysis, we concluded that although there 
are some common features among the programs, the differences in the 
purposes of the programs, manners of funding, and the lack of 
conclusive evidence of a government policy to treat industries equally 
warrant a finding that the programs are not integrally linked.
    The GOQ's dispute with our determination is based on our analysis 
of the ``purpose'' element. As indicated above, in examining the 
purpose, while we look at the overall goals of the enabling 
legislation, we focus on the specific purposes of the programs alleged 
to be linked. As we stated in the Decision Memorandum, specificity 
analysis must be focused at the program level. In this context, we must 
examine the type of assistance provided when analyzing the purpose of 
the program. Contrary to GOQ's claims, this interpretation does not 
require identical programs, but it does ensure that our integral 
linkage analysis comports with the countervailing duty law.
    According to the GOQ, in determining that FISI and Crop insurance 
do not share the same purpose, we are confusing method with purpose. We 
disagree. We are not confusing method with purpose, we are requiring, 
however, that given the narrow parameters of this type of analysis, the 
purpose and the method (i.e., the type of assistance) be the same. This 
does not mean that the programs need to be identical because the 
programs bestowing the same type of assistance to different groups of 
users may still be different in some ways to efficiently service 
different types of users. In our analysis, for instance, we found that 
FISI and Supply Management share similar purposes, because both 
programs protect the farmer against fluctuations in market price . Yet, 
they are very different programs.
    The GOQ offers a different interpretation of the rationale 
underlying the linkage policy. Rather than ensuring the 
noncountervailability of programs that benefit the economy at large, 
the GOQ proposes the following rationale: ``to avoid finding programs 
that benefit a broad section of the economy countervailable simply 
because, for political or technical reasons, a government set out to 
accomplish the same result through two or more complementary but not 
identical programs.'' (GOQ's case brief , July 8, 1996, at 43.) The 
Department's formulation focuses on whether the multiple programs 
alleged to be linked may constitute one program. In the GOQ's 
formulation, the key factor appears to be the accomplishment of certain 
objectives and whether the programs alleged to be linked, although 
diverse, accomplish those objectives when grouped together. Clearly, 
the GOQ's interpretation is inappropriate for purposes of this 
analysis.
    Based on this interpretation of integral linkage analysis, which we 
do not share, the GOQ articulates a new test: programs are linked ``if 
two or more programs are intended to accomplish the same ultimate end, 
and in doing so, treat industries equally, even if the means to 
accomplish those ends are somewhat different.'' The test the GOQ 
proposes is inappropriate because it relies on a misinterpretation of 
the rationale of the integral linkage analysis. If we were to use the 
``ultimate end'' as the dispositive factor, together with equal 
treatment, as the GOQ suggests, we would provide governments with the 
type of loophole that the Department seeks to avoid. Swine VI at 12246. 
Governments often pursue economic objectives, such as energy 
conservation policies, using different types of programs. Under the 
GOQ's proposed test many if not all such programs would be integrally 
linked and would be analyzed jointly for specificity purposes. This 
result contradicts the intent of Congress that the Department not adopt 
an overly broad exception to our specificity analysis. Swine VI at 
12246.
    The GOQ's definition of purpose as ``ultimate end'' is 
inappropriate for a more fundamental reason as well. The GOQ's 
definition confuses the purpose of the program with the economic 
effects of the benefits bestowed by the program. Income stabilization 
is the economic goal of the Farm Income Stabilization Act, not the 
purpose of FISI, nor of Crop Insurance, nor of the Supply Management 
programs. The purpose of FISI and Supply Management on the one side and 
of Crop Insurance on the other is to protect farmers against two 
distinct risks, price fluctuations and weather-related disasters; 
income stabilization is the economic effect of that protection. In 
evaluating subsidies, the Department does not take into account the 
results or the economic effects of the subsidy. See, e.g., Final 
Affirmative Countervailing Duty Determination: Certain Steel Products 
from Austria (General Issues Appendix) 58 FR 37217, 37260 (July 9, 
1993).
    The ``ultimate end'' is in fact of little consequence in linkage 
analysis. The question posed is whether the two

[[Page 52423]]

programs, considered in isolation, have the same specific purpose and 
bestow the same type of benefits on different users. If they do, 
provided that the analysis of their administration and manner of 
funding does not detract from this determination and that all necessary 
documentation has been provided, treating them as a single program may 
be appropriate for purposes of a specificity finding.
    Comment 19: The GOQ argues that combining the records of the 
seventh, eighth, and ninth reviews is contrary to the express rulings 
of the Court of International Trade (CIT) that the record for each 
section 751 review is limited to that particular review. The GOQ 
contends that the Department is required to make its determination of 
whether a given program is countervailable based upon facts specific to 
the particular review period. The preliminary results reached 
conclusions as to countervailability based upon all of the information 
in the combined records, without any attempt to tie those conclusions 
to the specific facts pertaining to each review period. Thus, the GOQ 
concluded that it was deprived of its legal right to receive separate 
determinations regarding the countervailability of its program based on 
the record of reach review. Furthermore, the GOQ contends that a 
reviewing court is required to assume that the Department has 
considered all information on the record. Because the Department has 
combined all of the information collected in three review periods into 
a single record, the Department cannot ask a reviewing court to assume 
that the Department considered only part of the record before it in 
making its determination.
    The GOQ also argues that the Department's inclusion of substantial 
unverified information is contrary to the statutory requirement that 
``all information relied upon in the determination'' be verified. The 
Department's statutory obligation to verify all of the information used 
in every third administrative review can no longer be satisfied once 
the Department combines the records of the seventh, eighth and ninth 
review periods. The verification that the Department conducted in the 
seventh review period would satisfy this statutory requirement only as 
long as the record of the seventh remains separate from the records of 
the eight and ninth review periods. Although the Department 
preliminarily calculated separate rates for each period, it made single 
determinations applicable to all three review periods as to whether 
programs were countervailable. Thus, the Department's results for the 
seventh review must be considered to be based, at least in substantial 
part, on the unverified information collected in the eighth and ninth 
reviews.
    The GOQ further argues that the combination of the records of three 
administrative reviews unduly burdens the interested parties' right to 
judicial review. The GOQ claims that it and other interested parties 
should not be forced to appeal the results of the seventh, eighth and 
ninth reviews in order to challenge the results, for example, of the 
seventh review. Interested parties are entitled to separate 
determinations that a court can review based solely upon the record 
compiled for a particular review period.
    Finally, the GOQ claims that the Department decided to combine the 
records of the three reviews in secret, without providing interested 
parties with notice and an opportunity to comment. The combination of 
the records, contravening the rulings of the CIT, is not a mere 
procedural adjustment; it violates the rights of parties and transforms 
the proceedings.
    Petitioners counter the GOQ's arguments stating that the Department 
has thoroughly explained its reasons for proceeding with these reviews 
on a consolidated basis. This is all that is required under the law. 
The fact that the GOQ believes that the Department should have 
solicited comments from interested parties prior to combining the 
reviews does not render the Department's decision erroneous. On the 
contrary, petitioners contend that the Department's decision to 
consolidate the review streamlines the process, avoids duplication of 
information that is the same across the review periods, and in turn, 
makes it easier for the Department to identify and address the 
differences that are relevant to each period.
    Finally, the petitioners contend that even if the Department did 
not inform the GOQ that it was considering the possibility of 
consolidating the records, this fact does not preclude the Department 
from doing so. The law is clear that the agency has the discretion to 
implement whatever procedures are necessary to perform its statutory 
mandate.
    Department's Position: The GOQ misconstrues the manner in which we 
have conducted the instant reviews. We are conducting concurrent 
reviews of three different review periods, and we have based the 
results of each administrative review solely on information submitted 
for each such review period. We have relied on public information from 
a preceding review period where that information is related to a common 
issue in the review period under examination. The Department did not 
take into account information filed for a subsequent review period to 
render its decision in an earlier review period. For instance, a 
decision made in the eighth review is based on information submitted 
pertaining to the eighth review period, and, where appropriate, public 
information pertaining to the seventh review period or earlier review 
periods. This is consistent with the Department's practice and in no 
way violated the rule that we must base our determinations on the facts 
contained in the administrative record for each particular review. 
While the record is combined, we were very careful in ensuring that 
only information pertaining to a particular review period was used in 
making determinations and calculating rates for that review period. We 
did not rely on the record in the way the GOQ alleges. Therefore, we 
have not combined the records in the manner that GOQ is arguing. 
Rather, we combined the records to avoid duplication in the submission 
of information from parties where the prior review had not been 
completed, and to publish a single notice with separate results for 
each review period.
    In addition, the GOQ incorrectly argues that because the Department 
combined a verified review, the seventh review, with the other 
unverified reviews, the verified information no longer satisfies the 
statutory requirement. This misinterpretation by GOQ also stems from 
its misunderstanding of the manner in which the Department combined the 
records and conducted the reviews.
    The GOQ makes a blanket statement that the Department reached 
conclusions as to countervailability based on the record of all three 
reviews, without attempting to tie those conclusions to specific facts 
pertaining to a specific determination. Furthermore, the GOQ does not 
point to any specific errors the Department made as a result of 
conducting these reviews concurrently. The GOQ's claim that we failed 
to reach separate determinations with respect to the countervailability 
of reviewed programs in each proceeding misinterprets our 
administrative practice. As we have repeatedly stated and as the GOQ 
well knows, where the Department has determined that a program is (or 
is not) countervailable, it is the Department's practice not to 
reexamine that program's countervailability in subsequent reviews 
unless new information or evidence of changed circumstances has been 
submitted which warrants

[[Page 52424]]

reconsideration. Therefore, we have not reconsidered previous 
determinations of countervailability unless warranted by evidence on 
the record of each review period.
    Moreover, interested parties' right to judicial review is not 
unduly burdened. Section 355.3(a) of the Department's regulations 
states that ``for purposes of section 516a (b)(2) of the Act, the 
record is the official record of each judicially reviewable segment of 
the proceeding.'' The concurrent reviews constitute separate segments 
of the proceeding for purposes of judicial review, and any or all of 
the three reviews will be subject to judicial review. The Department 
has conducted concurrent reviews in other proceedings which have been 
subject to judicial review and this practice has not unduly burdened 
appellate review. See generally, NEC Home Electronics, Ltd. v. United 
States, Slip Op. 94-70 (CIT May 2, 1994) (judicial review of a final 
notice that contained determinations for four review periods).
    The GOQ's argument that the Department decided to combine the 
records of the three reviews in secret suggests that the Department is 
obligated to solicit comments before conducting concurrent reviews. The 
Department has full discretion to implement procedures that it deems 
necessary to perform its statutory mandate. See e.g., PPG Industries, 
Inc. v. United States, 928 F.2d 1568 (Fed. Cir. 1991) (Commerce ``has 
been given great discretion in administering the countervailing duty 
laws.'') The GOQ is well aware that the second and third administrative 
reviews of this order were conducted concurrently. Furthermore, when 
the seventh and eighth reviews were being conducted concurrently, the 
GOQ did not raise any objections. The GOQ does not provide any evidence 
that concurrently conducting the ninth review with the seventh and 
eighth reviews corrupts the information submitted in any of the 
reviews.
    Comment 20: The GOQ argues that combining the records would 
increase the risk of inadvertent disclosure of proprietary information 
to individuals not entitled to receive that information. The GOQ also 
argues that the Department incorrectly stated in its Memorandum for the 
File from the Team regarding the GOQ's Objection to Combining the 
Administrative Record for the 7th, 8th, and 9th Reviews of Live Swine 
from Canada (Objection Memo) dated May 15, 1996, that the GOQ itself 
has not submitted any BPI during these three reviews, and thus cannot 
suffer any injury as a result of the ITA's handling of BPI during the 
seventh, eighth, and ninth reviews.
    Department's Position: The GOQ's argument that combining the 
administrative reviews will result in unlawful disclosure of 
proprietary information to parties not subject to an administrative 
protective order (APO) is without merit. All parties to this proceeding 
(Counsel for the GOC, Counsel for the GOQ, Counsel to the Petitioner, 
and Counsel for the CPC) had APO's approval for each of the three 
reviews, and subsequently requested a single ``blanket'' APO for the 
consolidated proceeding. All information submitted in the three reviews 
has been treated appropriately.
    Comment 21: GOQ argues that the doctrine of collateral estoppel 
precludes the Department from finding FISI countervailable because the 
binational panel found that the Department's decision in the fifth 
review was not based on substantial evidence and was not in accordance 
with law. Therefore, GOQ argues that the Department is estopped from 
claiming that FISI is countervailable in the current reviews.
    GOQ claims that the binational panel process replaces judicial 
review of final antidumping and countervailing duty determinations 
pursuant to the U.S.-North American Free Trade Agreement (NAFTA Article 
1904.1). The NAFTA parties have agreed that a binational panel 
decision, such as the Swine V panel decision, shall be binding on the 
involved Parties with respect to the particular matter between the 
Parties that is before the panel. (In the Matter of Live Swine from 
Canada, USA-91-1904-04; June 11, 1993). GOQ further argues that because 
a binational panel decision is a final ruling that is not subject to 
appeal to any higher tribunal, the decision should carry even more 
weight than a CIT decision.
    GOQ argues that the four conditions for collateral estoppel have 
been met: (1) the issue previously adjudicated is identical, (2) the 
issue was litigated in a prior review, (3) the previous determination 
of that issue was necessary to the end-decision then made, and (4) the 
party precluded was fully represented by counsel in the prior action.
    Petitioners counter that GOQ's arguments fail primarily because 
they rest on the incorrect premise that the Department previously has 
found FISI non-countervailable. Contrary to GOQ's claims, the 
Department has found FISI to be de facto specific and therefore 
countervailable in the original investigation and all subsequent 
reviews. See, e.g., Live Swine and Fresh, Chilled and Frozen Pork from 
Canada, (50 FR 25097, 25104; June 17, 1985). Petitioners also counter 
that the binational panel did not find FISI non-countervailable. 
Rather, the panel reviewing the Swine V redetermination found only that 
the evidence used by the Department was defective, and for that reason, 
remanded the Department's finding with instructions for it to remove 
FISI benefits from its duty calculation for that particular review 
period.
    Petitioners further contend that the GOQ's argument that ``a 
binational panel decision should carry even more weight than a CIT 
decision'' directly contradicts Congressional intent with respect to 
the binational panel review process. According to petitioners, the law 
is clear that decisions of binational panels carry relatively little 
weight, and certainly could not supersede the CIT's binding decision 
upholding that FISI is countervailable. See Alberta Pork Producers' 
Marketing Board v. United States, 669 F. Supp. 445, 451-52 (1987).
    Finally, petitioners counter that GOQ has offered no new factual 
information requiring the Department to reexamine its previous finding 
that FISI is de facto specific. Therefore, in this regard, it is GOQ's 
attempt to re-litigate this well-settled issue without offering new 
facts to compel a different result.
    Department's Position: We disagree with the GOQ's argument that we 
are collaterally estopped by the panel decision in Swine V from relying 
on our determination in the sixth review that FISI is countervailable. 
First, as recognized by the Swine V panel, its decisions are not 
binding on subsequent administrative determinations. Panel decisions 
are binding only on the particular matters presented which are based on 
the particular administrative record subject to appellate review. Live 
Swine from Canada, 14 ITRD 2388, 2403-04 (1992).
    Second, the Courts have recognized that collateral estoppel is 
inapplicable when the Department's determinations are based on 
different administrative records. See PPG Industries v. United States, 
746 F. Supp. 119, 133-34 (CIT 1990); PPG Industries v. United States, 
978 F.2d 1232, 1239 (Fed. Cir. 1992). See also Live Swine from Canada, 
at 2403 (rejecting use of collateral estoppel to bind panel to previous 
panel proceedings). The Swine V panel decision was based on the record 
developed in the fifth administrative review. During the sixth review, 
the Department gathered additional information and reinvestigated the 
countervailability of FISI. In Swine VI, the Department conducted a 
complete analysis of whether FISI was specific

[[Page 52425]]

and determined, based on the record evidence in that review, that FISI 
was specific. No parties challenged that determination.
    Moreover, the CIT has stated that ``the burden on the party seeking 
issue preclusion is and should be exacting.'' PPG, at 134, citing PPG 
Industries Inc. v. United States, 712 F. Supp. 195 (CIT 1989). The GOQ 
has failed to meet this standard because its arguments are based 
entirely on a non-binding panel decision that reviewed an entirely 
different administrative record than the record which served as the 
basis for our determination that FISI is countervailable. Accordingly, 
in accordance with our long-standing practice, we have relied on our 
decision in the sixth review that FISI is countervailable and have not 
reexamined the program because the GOQ has failed to present new facts 
or evidence of changed circumstances to warrant a reexamination of the 
program (see Department's Position on Comment 17).
    Comment 22: The CPC argues that the Department's unexplained and 
undocumented change in production figures in its calculation 
methodology is not supported by any record evidence. The CPC states 
that the Department has always used the total swine production data 
published in the Supply-Disposition Balance Sheets (Balance Sheets) by 
Statistics Canada. This data, which was verified in the seventh review 
period, is calculated using three components of the Balance Sheets: 
slaughter, international exports, and deaths and condemnations. 
Therefore, the CPC argues that the Department should not exclude deaths 
and condemnations, without a reasoned explanation. The CPC states that 
it is well established that an agency must either conform to prior 
decisions or explain its reason for departure from its past practice. 
The CPC cites a recent Binational Panel convened under the North 
American Free Trade Agreement, which ruled in similar circumstances 
that ``Commerce must provide * * * a comprehensive and reasoned 
analysis for reversing its former policy * * * Where no such basis of 
decision appears, there is present the kind of arbitrary action that 
this panel, like the United States courts, is charged with curbing.'' 
In the Matter of Live Swine from Canada, Panel No. USA-94-1904-01, at 8 
(May 30, 1995 Decision of the Panel).
    The CPC argues that the Department should continue to use 
production figures that include dead and condemned animals because they 
have been produced and marketed, and the scope of the order does not 
restrict the subject merchandise to human consumption only. Therefore, 
if the subject merchandise is produced and marketed in any way, it 
should be included in the total produced and marketed figure. If 
benefits are not allocated over total production, then any reduction in 
the production figures used in the denominator of the duty calculation 
would have to be accompanied by a concomitant reduction in the benefits 
used in the numerator to include only benefits to those particular 
animals actually included in the denominator. The CPC also argues that 
the Department has consistently allocated NTSP benefits over all 
Canadian production.
    Petitioners counter that the CPC attempts to discredit the 
Department's methodology on evidentiary grounds by claiming that the 
Department ``apparently rejected verified data on live swine 
production, and has instead produced its own, unsupported, production 
figures for use in all benefit calculations.'' The calculations in 
these reviews are also based on the data provided by the GOC, which the 
Department verified.
    Petitioners also counter that eliminating dead and condemned hogs 
from the denominator renders the Department's calculations more 
consistent with the scope of the order, which covers live swine, and 
with the Department's normal practice of collecting data on live swine 
produced and marketed or sold for slaughter. Because condemned swine, 
like dead swine, are not produced and marketed for human consumption, 
they should be excluded from the denominator. Furthermore, the 
Department's approach is more consistent with its ``tying'' standard. 
Under this standard, whenever possible, the Department attempts to tie 
the countervailable benefit to the actual product or sale benefitting 
from the subsidy. Petitioners do not dispute that the approach of tying 
benefits to the merchandise supports including dead and condemned swine 
in the denominator for ACBOP and the Ontario Rabies Indemnification 
Program. However, to use multiple denominators for the large number of 
countervailable programs would pose an administrative burden on the 
Department. In that context, petitioners conclude that the use of one 
consistent denominator makes the most sense.
    Finally, petitioners state that the CPC's argument that the amended 
methodology cannot be used for the final results because it represents 
a change in the Department's practice is incorrect. According to 
petitioners, the mere fact that an agency reverses a policy * * * does 
not indicate the agency's decision is unreasonable, arbitrary or 
capricious. It is well-settled that such reversals are entitled to 
deference from the courts.
    Department's Position: In the seventh review period, in a letter 
dated August 30, 1993, petitioners challenged the inclusion of dead and 
condemned swine in the production data. During verification, the GOC 
said that ``these animals are not sold as live swine, but they are used 
for some purpose, i.e., fertilizer or consumed on the farm.'' 
(Verification Report dated June 8, 1994, pgs. 61, 62.) Additionally, 
the CPC states that ``deaths refer to losses on a farm after a hog has 
been weaned and is being finished for slaughter, but before the hog is 
marketed, and condemned hogs are condemned after slaughter.''
    Contrary to the CPC's argument that the Department created its own, 
unsupported production figures, we used data from the Supply-
Disposition Balance Sheets (Balance Sheets), which is a GOC publication 
that the Department verified (Ibid., p. 61). In the preliminary 
results, we deducted the number of dead and condemned animals provided 
in that Balance Sheet from the total production figure, taken from the 
same Balance Sheet.
    The CPC incorrectly argues that the Department has consistently 
allocated NTSP benefits over all Canadian production. On the contrary, 
the Department has consistently allocated NTSP benefits over the 
production of market hogs only, because only market hogs are eligible 
to receive NTSP benefits. See, Live Swine from Canada; Preliminary 
Results of Countervailing Duty Administrative Review (58 FR 54112, 
54117; October 20, 1993 and Swine VI (12243).
    However, after considering the CPC and petitioners' comments, we 
have determined that we will continue to exclude dead and condemned 
swine from the denominator in calculating NTSP, FISI and SHARP benefits 
because these programs are tied to live swine that meet certain 
criteria of size and eligibility. Dead and condemned hogs are not 
eligible for benefits under those programs. We have now modified the 
calculations for the other domestic subsidy programs to include dead 
and condemned swine in the denominator because these programs are 
provided to all swine, whether marketed as live swine, or dead or 
consumed on the farm. This approach is more consistent with the 
Department's practice of tying benefits to the production or sale of a

[[Page 52426]]

particular product(s), in accordance with 19 CFR 355.47(a) of the 
Proposed Regulations.

Final Results of Reviews

    For the period April 1, 1991 through March 31, 1992, we determine 
the total net subsidy on live swine from Canada to be Can$0.0601 per 
kilogram. For the period April 1, 1992 through March 31, 1993, we 
determine the total net subsidy on live swine from Canada to be 
Can$0.0613 per kilogram. For the period April 1, 1993 through March 31, 
1994, we determine the total net subsidy on live swine from Canada to 
be Can$0.0106 per kilogram.
    The Department will instruct the U.S. Customs Service to assess 
countervailing duties of Can$0.0601 per kilogram on shipments of live 
swine from Canada exported on or after April 1, 1991 and on or before 
March 31, 1992, Can$0.0613 per kilogram on shipments of live swine from 
Canada exported on or after April 1, 1992 and on or before March 31, 
1993, and Can$0.0106 per kilogram on shipments of live swine from 
Canada exported on or after April 1, 1993 and on or before March 31, 
1994.
    The Department will also instruct the U.S. Customs Service to 
collect a cash deposit of estimated countervailing duties of Can$0.0106 
per kilogram on shipments of all live swine from Canada entered, or 
withdrawn from warehouse, for consumption on or after the date of 
publication of this notice.
    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 CFR 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)) and 19 CFR 355.22.

    Dated: September 25, 1996.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-25648 Filed 10-4-96; 8:45 am]
BILLING CODE 3510-DS-P