[Federal Register Volume 62, Number 175 (Wednesday, September 10, 1997)] [Notices] [Pages 47645-47649] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 97-23999] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE International Trade Administration [C-508-605] Industrial Phosphoric Acid From Israel: Preliminary Results and Partial Recission of Countervailing Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. ACTION: Notice of preliminary results of countervailing duty administrative review. ----------------------------------------------------------------------- SUMMARY: The Department of Commerce (the Department) is conducting an administrative review of the countervailing duty order on industrial phosphoric acid from Israel for the period January 1, 1995 through December 31, 1995. For information on the net subsidy for each reviewed company, as well as for all non-reviewed companies, please see the Preliminary Results of Review section of this notice. If the final results remain the same as these preliminary results of administrative review, we will instruct the U.S. Customs Service to assess countervailing duties as detailed in the Preliminary Results of Review. Interested parties are invited to comment on these preliminary results. See Public Comment section of this notice. EFFECTIVE DATE: September 10, 1997. FOR FURTHER INFORMATION CONTACT: Christopher Cassel or Lorenza Olivas, Office CVD/AD Enforcement VI, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482- 4847 or (202) 482-2786. SUPPLEMENTARY INFORMATION: Background On August 19, 1987, the Department published in the Federal Register (52 FR 31057) the countervailing duty order on industrial phosphoric acid from Israel. On August 12, 1996, the Department published a notice of ``Opportunity to Request Administrative Review'' (61 FR 41768) of this countervailing duty order. We received a timely request for review, and we initiated the review, covering the period January 1, 1995 through December 31, 1995, on September 17, 1996 (61 FR 48882). In accordance with 19 C.F.R. 355.22(a), this review covers only those producers or exporters of the subject merchandise for which a review was specifically requested. Accordingly, this review covers Rotem-Amfert Negev Ltd. (Rotem) and Haifa Chemicals Ltd. (Haifa). Haifa did not export the subject merchandise during the period of review. Therefore, we are rescinding the review with respect to Haifa. This review also covers nine programs. Pursuant to section 751(a)(3) of the Tariff Act of 1930, as amended, we extended the preliminary results to no later than September 2, 1997, and the final results to 120 days from the date on which these preliminary results are published. See Certain Industrial Phosphoric Acid from Israel; Extension of Time Limit for Countervailing Duty Administrative Review, 62 FR, 23220. Applicable Statute Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act (URAA) effective January 1, 1995 (the Act). The Department is conducting this administrative review in accordance with section 751(a) of the Act. [[Page 47646]] Scope of the Review Imports covered by this review are shipments of industrial phosphoric acid (IPA) from Israel. Such merchandise is classifiable under item number 2809.20.00 of the Harmonized Tariff Schedule (HTS). The HTS item number is provided for convenience and U.S. Customs Service purposes. The written description of the scope remains dispositive. Verification As provided in section 782(i) of the Act, we verified information submitted by the Government of Israel and Rotem. We followed standard verification procedures, including meeting with government and company officials and examining relevant accounting and financial records and other original source documents. Our verification results are outlined in the public versions of the verification reports, which are on file in the Central Records Unit (Room B-099 of the Main Commerce Building). Subsidies Valuation Information Period of Review The period for which we are measuring subsidies (the POR) is calendar year 1995. Allocation Period In British Steel plc. v. United States, 879 F.Supp. 1254 (February 9, 1995) (British Steel), the U.S. Court of International Trade (the Court) ruled against the allocation period methodology for non- recurring subsidies that the Department had employed for the past decade, which was articulated in the General Issues Appendix appended to the Final Countervailing Duty Determination; Certain Steel Products from Austria, 58 FR 37225 (July 9, 1993) (GIA)). In accordance with the Court's decision on remand, the Department determined that the most reasonable method of deriving the allocation period for nonrecurring subsidies is a company-specific average useful life (AUL). This remand determination was affirmed by the Court on June 4, 1996. British Steel, 929 F.Supp 426, 439 (CIT 1996). Accordingly, the Department has decided to acquiesce to the British Steel decision where reasonable and practicable. Rotem submitted an AUL calculation based on depreciation and asset values of productive assets reported in its financial statements. Rotem's AUL was derived by adding depreciation charges for ten years, and dividing these charges by the sum of average gross book value of depreciable fixed assets for the related periods. We found this calculation to be reasonable and consistent with our company-specific AUL objective. Rotem's calculation resulted in an average useful life of 24 years, and we have used this calculated figure for the allocation period for non-recurring subsidies received during the POR. For non-recurring subsidies received prior to the POR and which have already been countervailed based on an allocation period established in an earlier segment of the proceeding, it is not reasonable or practicable to reallocate those subsidies over a different period of time. Since the countervailing duty rate in earlier segments of the proceeding was calculated based on a certain allocation period and resulting benefit stream, redefining the allocation period in later segments of the proceeding would entail taking the original grant amount and creating an entirely new benefit stream for that grant. Such a practice may lead to an increase or decrease in the total amount countervailed and, thus, would result in the possibility of over-countervailing or under-countervailing the actual benefit. Therefore, for purposes of these preliminary results, the Department is using the original allocation period assigned to each nonrecurring subsidy received prior to the POR. See Certain Carbon Steel Products from Sweden; Final Results of Countervailing Duty Administrative Review, 62 FR 16549 (April 7, 1997). Privatization (I) Background Israeli Chemicals Limited (ICL), the parent company which owns 100 percent of Rotem's shares, was partially privatized in 1992, 1993 and 1994. In this administrative review, the Government of Israel (GOI) and Rotem reported that additional shares of ICL were sold in 1995. We have previously determined that the partial privatization of ICL represents a partial privatization of each of the companies in which ICL holds an ownership interest. See Final Results of Countervailing Duty Administrative Reviews; Industrial Phosphoric Acid from Israel, 61 FR 53351, 53352 (October 11, 1996) (1994 Final Results). In this review and prior reviews of this order, the Department has found that Rotem and/or its predecessor, Negev Phosphates Ltd., received non-recurring countervailable subsidies prior to these partial privatizations. Further, the Department has found that a portion of the price paid by a private party for all or part of a government-owned company represents partial repayment of prior subsidies. See GIA, 58 FR at 37262. Therefore, in the 1992 and 1993 reviews, we calculated the portion of the purchase price paid for ICL's shares that is attributable to repayment of prior subsidies. In the 1994 review, respondents reported that the GOI sold less than 0.5 percent of its shares in ICL. Because this percentage of shares privatized was so small, the percentage of subsidies potentially repaid through this privatization could have no measurable impact on Rotem's overall net subsidy rate. Therefore, we did not apply our repayment methodology to the 1994 partial privatization. See the 1994 Final Results, 61 FR at 53352. However, we are applying this methodology to the 1995 partial privatization of ICL during the POR because 24.9 percent of ICL's shares were sold. This approach is consistent with our findings in the GIA and Department precedent under the URAA. See e.g., GIA, 58 FR at 37259; Certain Hot-Rolled Lead and Bismuth Carbon Steel Products from the United Kingdom; Final Results of Countervailing Duty Administrative Review, 61 FR 58377 (November 14, 1996); and Final Affirmative Countervailing Duty Determination: Certain Pasta From Italy, 61 FR 30288 (June 14, 1996). (II) Modification of Calculation Methodology As noted above, in the 1992 and 1993 administrative review of this order, we determined that the partial privatization of ICL, Rotem's parent company, represented partial privatization of Rotem. Therefore, in each of those reviews, we calculated the portion of the purchase price paid for ICL's shares that was attributable to repayment of prior subsidies. Under this methodology, to determine the amount of subsidies that are extinguished due to privatization or reallocated as a result of changes in ownership, we calculate the net present value (NPV) of the remaining subsidies at the time of privatization or change in ownership. For example, if the privatization took place in 1993, the net present value calculation for that transaction would include all subsidies allocable to 1993. However, as in all other cases involving privatization or change in ownership, in each subsequent review, we then recalculated the amount of subsidies that were extinguished or reallocated by using only those subsidies affecting that subsequent review. In this case, for example, if the privatization took place in 1993, in the next administrative [[Page 47647]] review, 1994, we would recalculate the NPV using only those subsidies still allocable to 1994, i.e., the subsidies still benefitting the company in 1994. We revisited that methodology in the 1995 countervailing duty administrative review of certain hot-rolled lead and bismuth carbon steel products from the United Kingdom. See Certain Hot-Rolled Lead and Bismuth Carbon Steel Products from the United Kingdom; Preliminary Results of Countervailing Duty Administrative Review, 62 FR 16555, 16557 (April 7, 1997). In that review, we preliminarily determined that it is not appropriate to modify the calculation of the NPV of the subsidies existing at the time of sale. The change in ownership of a company is a fixed event at a particular point in time. Thus, the percentage of subsidies that may be extinguished due to privatization or reallocated due to a change in ownership in a given year is also fixed at that same point in time and does not change. Therefore, the pass-through percentage will no longer be altered once it has initially been determined in an investigation or administrative review. We have modified the ICL privatization calculations in this administrative review to reflect the change outlined above. Analysis of Programs I. Programs Previously Determined To Confer Subsidies (A) Encouragement of Capital Investments Law (ECIL) Grants This GOI grant program is designed to encourage the distribution of the population throughout Israel, to create new sources of employment, to aid the absorption of immigrants, and to develop the economy's production capacity. To be eligible for benefits under the ECIL, including investment grants, capital grants, accelerated depreciation, reduced tax rates, and certain loans, applicants must obtain approved enterprise status. Investment grants cover a percentage of the cost of the approved investment, and the amount of the grant depends on the geographic location of eligible enterprises. For purposes of the ECIL program, Israel is divided into three zones--Development Zone A, Development Zone B, and the Central Zone--and the level of grant funding differs in each zone. In Final Affirmative Countervailing Duty Determination: Industrial Phosphoric Acid from Israel, 52 FR 25447 (July 7, 1987) (IPA Investigation), the Department found the ECIL grant program to be de jure specific because the grants are limited to enterprises located in specific regions. In this review, no new information or evidence of changed circumstances has been submitted to warrant reconsideration of this determination. Rotem is located in Development Zone A, and received ECIL investment, drawback, and capital grants in disbursements over a period of years for several projects. As explained in the ``Allocation Period'' section above, for grants provided that have already been allocated in past administrative reviews, we are continuing to use the ten-year allocation period. For grants received during the POR, we followed the company-specific allocation methodology and allocated these grants over Rotem's company-specific AUL of 24 years. Under our past practice we used a discount rate based on the cost of fixed-rate long-term debt for the firm under review or generally in the country under review. However, Rotem had no fixed-rate long-term debt during the years in which it received ECIL grants. Moreover, in Industrial Phosphoric Acid from Israel; Final Results of Countervailing Duty Administrative Review, 61 FR 28842 (June 6, 1996) (1992/93 Final Results), the Department determined that no long-term loans with fixed interest rates (or other long-term debt) were available in Israel during that period; the only long-term loans (or other long-term debt) available to companies in Israel were provided at variable interest rates. Consistent with the 1992/93 Final Results, we have used as the discount rate the yield (in real terms) on consumer price indexed (CPI) commercial bonds, plus the CPI (as published in the Bank of Israel Annual Reports). 61 FR 28842; See also Industrial Phosphoric Acid From Israel: Preliminary Results of Countervailing Duty Administrative Review, 61 FR 8255, 8257 (March 4, 1996). We are utilizing a calculation methodology that conforms with the use of variable rather than fixed interest rates in the years these grants were disbursed. This methodology reflects the actual long-term options open to Israeli firms. To calculate the benefit to Rotem under this program, we have modified the grant methodology in this review to conform with our grant methodology developed in the countervailing duty investigation of steel wire rod from Venezuela. See Preliminary Affirmative Countervailing Duty Determination: Steel Wire Rod From Venezuela, 62 FR 41939, 41943 (August 4, 1997) (Wire Rod). In Wire Rod, we preliminarily determined that it is appropriate to inflation. Wire Rod, 62 FR at 41939. Making this adjustment is appropriate for high inflation economies because it maintains the allocated principal at a constant, inflation adjusted, value. It is also important to note that Israeli companies use inflation accounting in preparing their financial statements. Moreover, this reflects the adjustment recommended by respondents in their June 17, 1997, second supplemental questionnaire response, which is on file in the public file of the Central Records Unit of the Department of Commere, Room B-099. (The Department did not make an additional adjustment in these preliminary results recommended by respondents concerning the interest component of the benefit in these calculations.) In conformance with Wire Rod, we have adjusted the allocated principal of each ECIL grant for which benefits are still allocable to the POR. An additional modification to these calculations is reflected in the ad valorem subsidy rate calculation. To calculate the ad valorem subsidy rate in the 1994 review, we allocated the 1994 benefits over either Rotem's total sales of IPA or total sales of all products. ECIL grants tied to production of IPA were allocated over sales of IPA, while grants tied to input products such as phosphate rock and green acid were allocated over Rotem's total sales of all products. To calculate the total subsidy in this administrative review, we first summed the benefit to Rotem from all ECIL grant projects allocated to and received in 1995, after taking into account the 1992 and 1993 partial privatizations (and also accounting for the modification in the privatization calculation described above). Then, we determined the portion of that benefit still remaining with Rotem after accounting for the partial privatization of ICL in 1995. As with the 1994 review, ECIL grants tied to phosphate rock production were attributed to Rotem's total sales of all products. This is consistent with information reviewed at verification that phosphate rock produced from the company's three mines (Zin, Oron and Arad) could potentially be incorporated in all products produced by Rotem. Rotem officials explained that the decision to incorporate phosphate rock from a particular mine for production of specific downstream products is driven by economic considerations and because a different allocation may result in efficiency losses and increased costs. See the August 22, 1997, Memorandum to Barbara E. Tillman from The Team Re: Verification of Rotem's Questionnaire Responses in the 1995 Administrative Review of Industrial Phosphoric Acid from Israel at page 6 (public version on file in the public file [[Page 47648]] of the Central Records Unit, Room B-099 of the Department of Commerce) (Rotem VR). However, based upon our finding at verification, we are now using a different denominator for grants tied to Rotem's green acid and IPA production. Rotem officials stated at verification that the green acid produced at plant 30 and 31 could potentially be incorporated into the production of all of the company's end-products. However, officials stressed that for the same reason that phosphate rock is allocated to specific products, green acid from plants 30 and 31 is also allocated to specific products for economic reasons. See Rotem VR at 6-7. We also learned that IPA or white acid can be and is incorporated into MKP, an expensive fertilizer. See Rotem VR at 7. Therefore, we preliminarily determine that it is appropriate to attribute ECIL grants tied to a particular unit over the sales of the product produced by that unit plus the sales of all products into which that product may be incorporated. Accordingly, we attributed ECIL grants tied to Rotem's green acid facilities to total sales minus direct sales of phosphate rock, and grants tied to Rotem's IPA facility were attributed to total sales of IPA and MKP. We summed the rates obtained on this basis, and preliminarily determine the net subsidy from this program to be 12.69 percent ad valorem for the POR. (B) Long-Term Industrial Development Loans Prior to July 1985, approved enterprises were eligible to receive long-term industrial development loans funded by the GOI. During the original investigation, we verified that these loans were project- specific. They were disbursed through the Industrial Development Bank of Israel (IDBI) and other industrial development banks which no longer exist. The long-term industrial development loans were provided to a diverse number of industries, including agricultural, chemical, mining, machine, and others. However, the interest rates on loans vary depending on the Development Zone in which the borrower is located. The interest rates on loans to borrowers in Development Zone A are lowest, while those on loans to borrowers in the Central Zone are highest. Therefore, loans to companies in Zone A are provided on preferential terms relative to loans received by companies in the heavily populated and developed Central Zone. In IPA Investigation, the Department found long-term industrial development loans to be regional subsidies and countervailable to the extent that they are provided at interest rates which are lower than those applied on loans provided to companies located in the Central Zone. In this review, no new information or evidence of changed circumstances has been submitted to warrant reconsideration of this determination. Rotem had loans outstanding under this program during the review period. The loans carry the Zone A interest rates because of Rotem's location. Therefore, we determine that Rotem received countervailable benefits under this program because the interest rates paid by Rotem are lower than those which would apply in the Central Zone. As was determined in the Final Affirmative Countervailing Duty Determination: Certain Carbon Steel Butt-Weld Pipe Fittings from Israel, 60 FR 10569 (February 27, 1995), under the terms of this program, the interest rates on these loans have two components--a fixed real interest rate and a variable interest rate, the latter of which is based on either the CPI or the dollar/shekel exchange rate. All of Rotem's loans were linked to the dollar/shekel exchange rate. Because the dollar-shekel exchange rate varies from year-to-year, we were unable to apply the Department's long-term loan methodology because we cannot calculate a priori the payments due over the life of these loans, and hence cannot calculate the ``grant equivalent'' of the loans. Therefore, in accordance with past practice, we have compared the interest that would have been paid by a company in the Central Zone, as a benchmark, to the amount actually paid by Rotem during the review period. See 1992/93 Final Results, 61 FR 28842. We thus calculated the benefit during the period of review. We summed the benefits for all loans and divided the total by Rotem's total sales during the review period. On this basis, we preliminarily determine the net subsidy from this program to be less than 0.005 percent ad valorem for the POR. (C) Encouragement of Industrial Research and Development Grants (EIRD) Rotem received several grants under this program during the review period. In the IPA Investigation, we determined that these grants are countervailable. In this review, no new information or evidence of changed circumstances has been submitted to warrant reconsideration of this determination. We followed the methodology developed in the IPA Investigation to determine the benefit to Rotem from the EIRD program in 1995. During the 1995 review period, Rotem received payments under six separate EIRD grants. At verification, we found that two of these grants, one tied to fertilizer production (File No. 18142) and the other to rubber products (File No. 17772), could not benefit the subject merchandise. However, the other grants were for research into either green acid or phosphate rock production. See Rotem VR at 13-16. We view these grants as ``non-recurring'' grants based on the analysis set forth in the ``Allocation'' section of the GIA (58 FR at 37226) because these benefits are exceptional, and Rotem cannot expect to receive benefits on an ongoing basis from review period to review period. The total value of the grants received in 1995 was less than 0.50 percent of all Rotem's sales. Therefore, we divided the benefit by Rotem's total sales if the grant was tied to phosphate rock production or by sales of fertilizers, MKP and IPA, if the grant was tied to production of green acid. This conforms with the methodology described above under the ECIL program. On this basis, we preliminarily determine the benefit from this program to be 0.08 percent ad valorem. II. Programs Preliminarily Determined To Be Not Used We examined the following programs and preliminarily determine that the producer and/or exporter of the subject merchandise did not apply for or receive benefits under these programs during the period of review: A. Reduced Tax Rates under ECIL; B. ECIL Section 24 loans; C. Dividends and Interest Tax Benefits under Section 46 of the ECIL; and D. ECIL Preferential Accelerated Depreciation. E. Exchange Rate Risk Insurance Scheme Preliminary Results of Review In accordance with 19 C.F.R. 355.22(c)(4)(ii), we calculated an individual subsidy rate for each producer/exporter subject to this administrative review. For the period January 1, 1995 through December 31, 1995, we preliminarily determine the net subsidy for Rotem to be 12.77 percent ad valorem. If the final results of this review remain the same as these preliminary results, the Department intends to instruct the U.S. Customs Service (``Customs'') to assess countervailing duties as indicated above. The Department also intends to instruct Customs to collect cash deposits of estimated countervailing duties as indicated above of the f.o.b. [[Page 47649]] invoice price on all shipments of the subject merchandise from reviewed companies, entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. Because the URAA replaced the general rule in favor of a country- wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Act. The requested review will normally cover only those companies specifically named. See 19 C.F.R. Sec. 355.22(a). Pursuant to 19 C.F.R. 355.22(g), for all companies for which a review was not requested, duties must be assessed at the cash deposit rate, and cash deposits must continue to be collected, at the rate previously ordered. As such, the countervailing duty cash deposit rate applicable to a company can no longer change, except pursuant to a request for a review of that company. See Federal- Mogul Corporation and The Torrington Company v. United States, 822 F.Supp. 782 (CIT 1993) and Floral Trade Council v. United States, 822 F.Supp. 766 (CIT 1993) (interpreting 19 C.F.R. 353.22(e), the antidumping regulation on automatic assessment, which is identical to 19 C.F.R. 355.22(g)). Therefore, the cash deposit rates for all companies except those covered by this review will be unchanged by the results of this review. We will instruct Customs to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country- wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order are those established in the most recently completed administrative proceeding, conducted pursuant to the statutory provisions that were in effect prior to the URAA amendments. See 1992/ 93 Final Results, 61 FR 28842. These rates shall apply to all non- reviewed companies until a review of a company assigned these rates is requested. In addition, for the period January 1, 1995 through December 31, 1995, the assessment rates applicable to all non-reviewed companies covered by this order are the cash deposit rates in effect at the time of entry. Public Comment Parties to the proceeding may request disclosure of the calculation methodology and interested parties may request a hearing not later than 10 days after the date of publication of this notice. Interested parties may submit written arguments in case briefs on these preliminary results within 30 days of the date of publication. Rebuttal briefs, limited to arguments raised in case briefs, may be submitted seven days after the time limit for filing the case brief. Parties who submit argument in this proceeding are requested to submit with the argument (1) a statement of the issue and (2) a brief summary of the argument. Any hearing, if requested, will be held seven days after the scheduled date for submission of rebuttal briefs. Copies of case briefs and rebuttal briefs must be served on interested parties in accordance with 19 C.F.R. 355.38. Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 C.F.R. 355.38, are due. The Department will publish the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal brief or at a hearing. This administrative review and notice are in accordance with section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)). Dated: September 2, 1997. Robert S. LaRussa, Assistant Secretary for Import Administration. [FR Doc. 97-23999 Filed 9-9-97; 8:45 am] BILLING CODE 3510-DS-P