[Federal Register Volume 70, Number 47 (Friday, March 11, 2005)]
[Notices]
[Pages 12186-12188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-1030]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[C-122-851]


Final Negative Countervailing Duty Determination: Live Swine from 
Canada

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce has made a final determination that 
countervailable subsidies are not being provided to producers or 
exporters of live swine from Canada.

EFFECTIVE DATE: March 11, 2005.

FOR FURTHER INFORMATION CONTACT: Melani Miller Harig, Stephen Cho, 
Daniel J. Alexy, and Marc Rivitz, AD/CVD Operations, Office 1, Import 
Administration, U.S. Department of Commerce, Room 3099, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-
0116, (202) 482-3798, (202) 482-1540, and (202) 482-1382, respectively.

SUPPLEMENTARY INFORMATION:

Petitioners

    The petitioners in this investigation are the Illinois Pork 
Producers Association, the Indiana Pork Advocacy Coalition, the Iowa 
Pork Producers Association, the Minnesota Pork Producers Association, 
the Missouri Pork Association, the Nebraska Pork Producers Association, 
Inc., the North Carolina Pork Council, Inc., the Ohio Pork Producers 
Council, and 119 individual producers of live swine\1\ (collectively, 
``the petitioners'').
---------------------------------------------------------------------------

    \1\ Alan Christensen, Alicia Prill-Adams, Aulis Farms, Baarsch 
Pork Farm, Inc., Bailey Terra Nova Farms, Bartling Brothers Inc., 
Belstra Milling Co. Inc., Berend Bros. Hog Farm LLC, Bill Tempel, BK 
Pork Inc., Blue Wing Farm, Bornhorst Bros, Brandt Bros., Bredehoeft 
Farms, Inc., Bruce Samson, Bryant Premium Pork LLC, Buhl's Ridge 
View Farm, Charles Rossow, Cheney Farms, Chinn Hog Farm, Circle K 
Family Farms LLC, Cleland Farm, Clougherty Packing Company, Coharie 
Hog Farm, County Line Swine Inc., Craig Mensick, Daniel J. Pung, 
David Hansen, De Young Hog Farm LLC, Dean Schrag, Dean Vantiger, 
Dennis Geinger, Double ``M'' Inc., Dykhuis Farms, Inc., E & L 
Harrison Enterprises, Inc., Erle Lockhart, Ernest Smith, F & D 
Farms, Fisher Hog Farm, Fitzke Farm, Fultz Farms, Gary and Warren 
Oberdiek Partnership, Geneseo Pork, Inc., GLM Farms, Greenway Farms, 
H & H Feed and Grain, H & K Enterprises, LTD, Ham Hill Farms, Inc., 
Harrison Creek Farm, Harty Hog Farms, Heartland Pork LLC, Heritage 
Swine, High Lean Pork, Inc., Hilman Schroeder, Holden Farms Inc., 
Huron Pork, LLC, Hurst AgriQuest, J D Howerton and Sons, J. L. 
Ledger, Inc., Jack Rodibaugh & Sons, Inc., JC Howard Farms, Jesina 
Farms, Inc., Jim Kemper, Jorgensen Pork, Keith Berry Farms, Kellogg 
Farms, Kendale Farm, Kessler Farms, L.L Murphrey Company, Lange 
Farms LLC, Larson Bros Dairy Inc., Levelvue Pork Shop, Long Ranch 
Inc., Lou Stoller & Sons, Inc., Luckey Farm, Mac-O-Cheek, Inc., 
Martin Gingerich, Marvin Larrick, Max Schmidt, Maxwell Foods, Inc., 
Mckenzie-Reed Farms, Meier Family Farms Inc., MFA Inc., Michael 
Farm, Mike Bayes, Mike Wehler, Murphy Brown LLC, Ned Black and Sons, 
Ness Farms, Next Generation Pork, Inc., Noecker Farms, Oaklane 
Colony, Orangeburg Foods, Oregon Pork, Pitstick Pork Farms Inc., 
Prairie Lake Farms, Inc., Premium Standard Farms, Inc., Prestage 
Farms, Inc., R Hogs LLC, Rehmeier Farms, Rodger Schamberg, Scott W. 
Tapper, Sheets Farm, Smith-Healy Farms, Inc., Square Butte Farm, 
Steven A. Gay, Sunnycrest Inc., Trails End Far, Inc., TruLine 
Genetics, Two Mile Pork, Valley View Farm, Van Dell Farms, Inc., 
Vollmer Farms, Walters Farms LLP, Watertown Weaners, Inc., Wen Mar 
Farms, Inc., William Walter Farm, Willow Ridge Farm LLC, Wolf Farms, 
Wondraful Pork Systems, Inc., Wooden Purebred Swine Farms, Woodlawn 
Farms, and Zimmerman Hog Farms.
---------------------------------------------------------------------------

Case History

    The following events have occurred since the publication of the 
preliminary determination in the Federal Register on August 23, 2004. 
See Preliminary Negative Countervailing Duty Determination and 
Alignment of Final Countervailing Duty Determination With Final 
Antidumping Duty Determination: Live Swine from Canada, 69 FR 51800 
(August 23, 2004) (``Preliminary Determination'').
    On September 9, 2004, the petitioners submitted comments on the 
upcoming verifications.
    On September 14, 2004, the petitioners submitted arguments relating 
to certain requests made by the Government of Canada (``GOC'') for 
business proprietary treatment in its questionnaire responses. The GOC 
filed a response to this submission on September 22, 2004.
    On September 17 and 27, 2004, Sureleen-Albion Agra Inc. 
(``Sureleen'')/Bujet Sow Group (``BSG'') and Hytek Ltd. (``Hytek''), 
respectively, submitted new factual information and corrections to 
their previous responses. The GOC also submitted revised information 
from its questionnaire responses on October 5, 2004.
    From September 27, 2004 through October 8, 2004, and October 18, 
2004 through October 21, 2004, we conducted verification of the 
questionnaire responses submitted by the GOC; the Governments of 
Ontario, Manitoba, Saskatchewan, and Alberta; Sureleen/BSG; Hytek; 
Premium Pork Canada Inc.; Hart Feeds Limited; Elite Swine Inc./Maple 
Leaf Foods Inc.; Park View Colony Farms Ltd.; and Willow Creek

[[Page 12187]]

Colony Ltd. We also verified the information submitted by M & F Trading 
Inc., Maximum Swine Marketing, and Excel Swine Services, the three 
trading companies/cooperatives covered by this investigation, as part 
of the verification of the GOC and the provincial governments.
    We received case briefs from the petitioners and the Government of 
Saskatchewan on January 7, 2005. The respondents (collectively) and the 
petitioners submitted rebuttal briefs on January 14, 2005. We held a 
hearing in this investigation on January 19, 2005. Public transcripts 
from this hearing are available in the Department of Commerce's 
(``Department'') Central Records Unit in Room B-099 of the main 
Department building (``CRU'').

Period of Investigation

    The period for which we are measuring subsidies, or the period of 
investigation, is calendar year 2003.

Scope of Investigation

    The merchandise covered by this investigation is all live swine 
(``swine'' or ``subject merchandise'') from Canada except breeding 
stock swine. Live swine are defined as four-legged, monogastric 
(single-chambered stomach), litter-bearing (litters typically range 
from 8 to 12 animals), of the species sus scrofa domesticus. This 
merchandise is currently classifiable under Harmonized Tariff Schedule 
of the United States (``HTSUS'') subheadings 0103.91.00 and 0103.92.00.
    Specifically excluded from this scope are breeding stock, including 
U.S. Department of Agriculture (``USDA'') certified purebred breeding 
stock and all other breeding stock. The designation of the product as 
``breeding stock'' indicates the acceptability of the product for use 
as breeding live swine. This designation is presumed to indicate that 
these products are being used for breeding stock only. However, should 
the petitioners or other interested parties provide a reasonable basis 
to believe or suspect that there exists a pattern of importation of 
such products for other than this application, end-use certification 
for the importation of such products may be required.
    Although the HTSUS headings are provided for convenience and 
customs purposes, the written description of the merchandise under 
investigation is dispositive.

Scope Comments

    In the Notice of Initiation of Countervailing Duty Investigation: 
Live Swine From Canada, 69 FR 19818 (April 14, 2004), we invited 
comments on the scope of this proceeding. On May 4, 2004, we received a 
request from the GOC to amend the scope of this investigation and the 
companion antidumping duty (``AD'') investigation. Specifically, the 
GOC requested that the scope be amended to exclude hybrid breeding 
stock. According to the GOC, domestic producers use hybrid breeding 
stock instead of purebred stock to strengthen their strains of swine. 
The GOC stated that no evidence was provided of injury, or threat of 
injury, to the domestic live swine industry from the importation of 
hybrid breeding stock. Furthermore, the GOC noted that the petition 
excluded USDA certified purebred breeding swine from the scope of the 
above-mentioned investigations. The GOC argued that the documentation 
which accompanies imported hybrid breeding swine makes it easy to 
distinguish hybrid breeding swine from other live swine.
    On August 4, 2004, the petitioners submitted a response to the 
GOC's scope exclusion request and proposed modified scope language. The 
petitioners stated they did not oppose the GOC's request to exclude 
hybrid breeding stock, but were concerned about the potential for 
circumvention of any AD or countervailing duty (``CVD'') order on live 
swine from Canada through non-breeding swine entering the domestic 
market as breeding stock. Thus, the petitioners proposed modified scope 
language that would require end-use certification if the petitioners or 
other interested parties provide a reasonable basis to believe or 
suspect that there exists a pattern of importation of such products for 
other than this application. Moreover, on July 30, 2004, the 
petitioners submitted a request to the International Trade Commission 
(``ITC'') to modify the HTSUS by adding a statistical breakout that 
would separately report imports of breeding animals other than purebred 
breeding animals, allowing the domestic industry to monitor the import 
trends of hybrid breeding stock.
    On August 9, 2004, both the GOC and the respondent companies 
submitted comments to respond to the petitioners' proposed revised 
scope. Both the GOC and the respondent companies stated that they 
generally agreed with the petitioners' modified scope language, with 
the two following exceptions: 1) they contended that the petitioners' 
language setting forth the mechanics of any end use certification 
procedure was premature and unnecessary, and 2) they argued that the 
petitioners' language stating that ``all products meeting the physical 
description of subject merchandise that are not specifically excluded 
are included in this scope'' was unnecessary because the physical 
description of the merchandise in scope remains determinative.
    On August 12, 2004, the petitioners submitted a response to the 
August 9, 2004 comments from the GOC and the respondents. The 
petitioners reiterated their support for their proposed modification to 
the scope language. They argued that 1) their proposed language had 
been used before by the Department in other proceedings; 2) since U.S. 
importers bear the burden of paying the duties, the importers should be 
required to certify to the end use of the product; and 3) with the 
petitioners' concerns about circumvention, the ``physical description'' 
language provided an important clarification that all live swine except 
for the excluded products are included in the scope.
    As further discussed in the August 16, 2004 memorandum entitled 
``Scope Exclusion Request: Hybrid Breeding Stock'' (on file in the 
Department's CRU), we preliminarily revised the scope in both the CVD 
and companion AD proceedings based on the above scope comments. See 
Preliminary Determination, 69 FR 81800, 51801-51802, and Notice of 
Preliminary Determination of Sales at Less Than Fair Value and 
Postponement of Final Determination: Live Swine from Canada, 69 FR 
61639, 61640-61641 (October 20, 2004). No further scope comments were 
received from any party subsequent to these preliminary determinations. 
Thus, we have adopted the revised scope from the Preliminary 
Determination for this final determination. The revised scope language 
is included in the ``Scope of Investigation'' section, above.

Injury Test

    Because Canada is a ``Subsidies Agreement Country'' within the 
meaning of section 701(b) of the Tariff Act of 1930, as amended by the 
Uruguay Round Agreements Act effective January 1, 1995 (``the Act''), 
the ITC is required to determine whether imports of the subject 
merchandise from Canada materially injure, or threaten material injury 
to, a U.S. industry. On May 10, 2004, the ITC transmitted to the 
Department its preliminary determination that there is a reasonable 
indication that an industry in the United States is being materially 
injured by reason of imports from Canada of the subject merchandise. 
See Live Swine From Canada, 69 FR 26884 (May 14, 2004).

[[Page 12188]]

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this investigation are addressed in the March 4, 2005 ``Issues and 
Decision Memorandum'' from Barbara E. Tillman, Acting Deputy Assistant 
Secretary for Import Administration, to Joseph A. Spetrini, Acting 
Assistant Secretary for Import Administration (``Decision 
Memorandum''), which is hereby adopted by this notice. Attached to this 
notice as an appendix is a list of the issues which parties have raised 
and to which we have responded in the Decision Memorandum. Parties can 
find a complete discussion of all issues raised in this investigation 
and the corresponding recommendations in this public memorandum, which 
is on file in the CRU. In addition, a complete version of the Decision 
Memorandum can be accessed directly on the Internet at http://ia.ita.doc.gov/frn/ under the heading ``Canada.'' The paper copy and 
electronic version of the Decision Memorandum are identical in content.

Suspension of Liquidation

    In the Preliminary Determination, the total net countervailable 
subsidy rate was de minimis and, therefore, we did not suspend 
liquidation. For the final determination, because the rate remains de 
minimis, we are not directing U.S. Customs and Border Protection to 
suspend liquidation of live swine from Canada.

ITC Notification

    In accordance with section 705(d) of the Act, we will notify the 
ITC of our determination.

Return or Destruction of Proprietary Information

    This notice serves as the only reminder to parties subject to 
Administrative Protective Order (``APO'') of their responsibility 
concerning the destruction of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a 
violation of the APO.
    This determination is published pursuant to sections 705(d) and 
777(i) of the Act.

    Dated: March 4, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.

Appendix

List of Comments and Issues in the Decision Memorandum

Comment 1: Specificity
Comment 2: Green Box Claims
Comment 3: Agricultural Income Disaster Assistance Program Recurring 
vs. Nonrecurring
Comment 4: Quebec Farm Income Stabilization Insurance/Agricultural 
Revenue Stabilization Insurance Program
Comment 5: Saskatchewan Short-Term Hog Loan Program
Comment 6: Saskatchewan Livestock and Horticultural Facilities 
Incentives Program

[FR Doc. E5-1030 Filed 3-10-05; 8:45 am]
BILLING CODE 3510-DS-S