NOTICES

                        DEPARTMENT OF COMMERCE

                    International Trade Administration

      Preliminary Affirmative Countervailing Duty Determination; Canned Tuna
                           From the Philippines

                          Tuesday, August 16, 1983

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 AGENCY: International Trade Administration, Commerce.

 ACTION: Preliminary affirmative countervailing duty determination.

 SUMMARY: We preliminarily determine that certain benefits which constitute bounties
 or grants within the meaning of the countervailing duty law are being provided to
 manufacturers, producers, or exporters in the Philippines of canned tuna, as described
 in the "Scope of Investigation" section of this notice. The estimated net bounties or grants
 are 1.30 percent ad valorem. Therefore, we are directing the U.S. Customs Service to
 suspend liquidation of all entries of the product subject to this determination which are
 entered, or withdrawn from warehouse, for consumption, and to require a cash deposit or
 the posting of a bond on this product in an amount equal to the estimated net bounties or
 grants.

 If this investigation proceeds normally, we will make our final determination by October
 24, 1983.

 EFFECTIVE DATE: August 16, 1983.

 FOR FURTHER INFORMATION CONTACT: John J. Kenkel or Melissa G. Skinner, Office of
 Investigations, Import Administration, International Trade Administration, U.S.
 Department of Commerce, 14th Street and Constitution Avenue NW., Washington, D.C.
 20230, telephone: (202) 377-3464 or 377-3530.

 SUPPLEMENTARY INFORMATION:

 Preliminary Determination

 Based upon our investigation, we preliminarily determine that there is reason to believe
 or suspect that certain benefits which constitute bounties or grants within the meaning of
 section 303 of the Tariff Act of 1930, as amended ("The Act"), are being provided to
 manufacturers, producers, or exporters in the Philippines of canned tuna as described
 in the "Scope of Investigation" section of this notice. The estimated net bounties or grants
 are 1.30 percent ad valorem.

 Case History 

 On March 11, 1983, we received a petition in proper form from the Tuna Research
 Foundation, Inc., on behalf of the U.S. industry producing canned tuna. The petition
 alleged that certain benefits which constitute bounties or grants within the meaning of
 section 303 of the Act are being provided, directly or indirectly, to the manufacturers,
 producers, or exporters in the Philippines of canned tuna.
 Since the Philippines is not a "country under the Agreement" within the meaning of
 section 701(b) of the Act, section 303 of the Act applies to this investigation. Under this
 section, since the merchandise being investigated is dutiable, the domestic industry is not
 required to allege that, and the U.S. International Trade Commission is not required to
 determine whether, imports of this product cause or threaten to cause material injury to
 a U.S. industry. We found the petition to contain sufficient grounds upon which to initiate
 a countervailing duty investigation, and on March 31, 1983 we initiated a
 countervailing duty investigation (48 FR 15505).
 On April 20, 1983, we presented a questionnaire concerning the allegations to the
 government of the Philippines at its embassy in Washington, D.C. Subsequently, on May
 23, 1983, we determined that the case was "extraordinarily complicated" within the
 meaning of 703 (c)(1)(B) of the Act, and we published a notice of the postponement of the
 preliminary countervailing duty determination (48 FR 22976). On June 17, 1983, we
 received the responses to the questionnaire. Verification of the responses was conducted
 July 5-20, 1983, in the Philippines.
 Of the eight producers which responded to the questionnaire, we selected for verification
 the six companies which accounted for 85 percent, by value, of exports to the U.S. The six
 companies were: Century Canning Corp., Judric Canning Corp., Philippine Tuna Canning
 Corp., Pure Foods Corp., Sancanco Canning Corp., and Premier Canning Coporation. We
 verified at the company and government levels the responses of the six companies,
 except Premier, which refused to cooperate. Any additional information provided for use
 in the final determination will be subject to verification. One additional exporter, Ayala
 was discovered during verification and information for that company was collected.

 Scope of Investigation

 The product covered by this investigation is tuna packed or preserved in any manner, not
 in oil, in airtight containers. The merchandise is currently classified under item numbers
 112.3020, 112.3040, and 112.3400 of the Tariff Schedules of the United States Annotated
 (TSUSA).
 The Ayala Corporation, Century Canning Corp., Judric Canning Corp., Mar Fishing Corp.,
 Philippine Tuna Canning Corp., Premier Canning Corp., Pure Foods Corp., Sancanco
 Canning Corp., and South Pacific Export Company are the only known producers and
 exporters in the Philippines of the subject product exported to the United States. Two
 companies alleged in the petition (Diamond Seafoods Corp. and Santa Monica Canning
 Corp.) were not producers or exporters of tuna during the period for which we are
 measuring subsidization, which is the 1982 calendar year or 1982 corporate fiscal year, as
 appropriate.

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 Analysis of Programs

 Based upon our analysis to date of the petition, the responses to our questionnaire and
 verification, we have preliminarily determined the following:

 I. Programs Preliminarily Determined To Confer Bounties or Grants
 We preliminarily determine that bounties or grants are being provided to manufacturers,
 producers, or exporters in the Philippines of canned tuna under the programs listed
 below.

 A. Preferential Loans. Petitioners alleged benefits in the form of preferential loans
 provided through the Central Bank's operation of a rediscounting facility for selected
 loans. The Department requested from each of the companies under investigation
 information on all loans outstanding during the period for which we are measuring
 subsidization.

 1. Export Packing Credits. The export packing credit (EPC) program is a rediscounting
 program offered by the Central Bank of the Philippines, which provides credit on
 eligible paper with original maturity of one year or less. Upon receipt of a letter of credit,
 an exporter may request from a commercial bank a loan predicated on the letter of credit,
 to finance working capital and other requirements. Exporters are charged a maximum
 interest rate of 12 percent, including fees. The Central Bank rediscounts up to 80 percent
 of the letter of credit at a rate of three percent. During the period of investigation, the
 maximum commercial interest rate for non-rediscounted paper was 18 percent. Since this
 program is available solely to exporters, and interest rates are less than those for
 comparable commercially available loans, we preliminarily determine that this program
 confers a bounty or grant upon exporters of canned tuna.
 The benefit provided by this program was calculated by taking the difference between the
 actual interest paid by the companies and the amount of interest they would have paid
 using a comparable commercial interest rate. Since we could not identify a national
 average commercial interest rate, we used as our benchmark the average of the alternate
 rates (had rediscounting not been available) specifically set forth in each loan document.
 This benchmark was then applied to the principal amount for the average number of days
 which the loans were outstanding for each company, with the exception of Premier. Due
 to the lack of cooperation by Premier, we assumed that Premier borrowed the maximum
 amount for which they are eligible under the program. We applied the ceiling rate for
 short-term loans to this amount of EPC principal for the maximum allowable length of
 these loans. We allocated the amount of the benefit over the value of all exports of canned
 tuna, because packing credits are available only to exporters. On this basis, we calculated
 an ad valorem benefit of 1.03 percent.

 3. Food Production Credits. Another type of loan for which rediscounting through the
 Central Bank if available is food production credit. Loans which are rediscounted by
 commercial banks with the Central Bank under this program are available to producers of
 canned tuna at a ceiling interest rate of 12 percent, including fees. As provided in Central
 Bank circular 784, this program is available only to members of the food industry. Since
 this program appears to be limited to an industry or group of industries within the
 meaning of section 771(5)(B) of the Act, we preliminarily determine that this program
 confers a bounty or grant upon the canned tuna industry. We calculated the benefit from
 these loans by applying the difference in the interest actually paid versus the interest that
 would have been paid using a generally available commercial interest rate. As we were
 unable to identify a national average commercial interest rate, we used as a benchmark
 the average alternate rate of interest specifically listed on each of the loan documents of
 the companies investigated. Because this program is available for both domestic and
 export food production, we allocated the benefit over total sales of canned tuna. The use
 of the food production credit resulted in a net bounty or grant of 0.06 percent ad
 valorem.
 
 B. Tax Incentives Available Under the Omnibus Investment Code. The petition alleges
 that the Omnibus Investments Code--which provides a variety of investment incentives
 only to registered enterprises--confers bounties or grants. The allegation includes: (1)
 Incentives to registered enterprises (Article 45 of the Code); (2) incentives to registered
 export producers (Article 48 of the Code); and (3) incentives to registered export traders
 (Article 49 of the Code).
 The Omnibus Investments Code, Presidential Decree 1789, establishes various tax
 incentives for the purpose of accelerating development of the economy of the
 Philippines by encouraging domestic and foreign investments in projects to develop
 various sectors of the economy, achieving self-reliance in basic requirements, and
 encouraging exports of Philippine products and services.
 The Board of Investments (BOI) is responsible for the administration of the Omnibus
 Investments Code. In this regard, the BOI prepares an annual Investment Priorities Plan
 (IPP) listing the "preferred areas of investment" entitled to incentives under the Omnibus
 Investments Code. In order to become registered with the BOI, and thus entitled to the
 incentives offered in the Code, a company must be in an industry included in the IPP.
 Processed food (fish and other seafood), which includes canned tuna, is included in the
 1982 Investment Priorities Plan. Because registration is limited by government direction
 to industries included in the IPP, and the criteria for such inclusion are not clear, we
 preliminarily determine that the following incentives provided for in the Omnibus
 Investments Code either are provided to a specific industry or group of industries or, as
 indicated, are tied to exports, and therefore confer bounties or grants.
 One or more of the canned tuna producers/export traders benefitted from the following
 BOI incentives during the period of investigation:

 1. Article 45(i) provides for a tax deduction for expansion reinvestment. This tax
 deduction is allowable when a registered enterprise reinvests its undistributed profit or
 surplus by transfer thereof to its capital account for procurement of machinery,
 equipment and spare parts, under a plan previously approved by the BOI or for
 expansion of machinery and equipment used in production or for the construction of
 buildings, improvements and equipment. The amount so reinvested, to the extent of 25,
 37 1/2 or 50 percent (37 1/2 percent for canned tuna) is allowed as a deduction from its
 taxable income in the year in which such reinvestment is made subject to the conditions
 in the Code. One canned tuna producer used this incentive. The beneift measured is the
 tax savings which were claimed on the tax return filed during the period of investigation.

 2. Article 48(b) provides for a tax deduction of direct labor costs and local raw materials.
 A registered export producer may, for the first five years from its registration of
 commercial operations, deduct from its taxable income from domestic and export sales
 and from all registered operations an amount equivalent to the direct labor cost of the
 product and the local raw material cost of its export products. This deduction may not
 exceed 25 percent of a company's total export revenue. One canned tuna producer used
 this incentive during the period for which we are measuring subsidization. The benefit
 measured is the tax savings which were claimed on the tax return during the period of
 investigation.

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 3. Article 48(f) provides for export producers, a tax exemption on imported
 capital equipment in the amount of: 50 percent of the tariff duties and compensating tax
 payable on the imported capital equipment and accompanying spare parts for domestic
 producers; and 100 percent of the tax for imports within seven years from the date of
 registration with the BOI for export producers, respectively. One canned tuna producer
 used this benefit during the period for which we are measuring subsidization. Because this
 is an import tax exemption, the benefit is comprised of exemptions occuring during the
 year for which we are measuring subsidization.

 4. Article 49(d) provides for a tax deduction to export trading companies. For the first
 five years from the date of registration of its commercial operations, a registered export
 trading company may deduct an amount equal to 20 percent of its total export sales. This
 deduction is made from taxable income attributable to all registered operations fo the
 firm. However, the BOI may apportion up to one half of this deduction to the registered
 export producer which is exporting through the registered trader. One canned tuna
 producer and one export trading company shared this benefit. The benefit measured is
 the tax savings which were claimed on the tax return filed during the period of
 investigation.
 Because Article 45(i) is available to all registered producers, not merely registered export
 producers, we allocated the benefit received under this article over total sales of canned
 tuna. The benefits received under Articles 48(b) and 49(d), because they are available
 only to registered producers or registered export traders, constitute export subsidies and
 were allocated over total export sales of canned tuna. The use of these BOI domestic and
 export incentives resulted in a net bounty or grant of 0.07 percent and 0.14 percent ad
 valorem, respectively.

 II. Program Preliminarily Determined not to Confer Bounties or Grants

 We preliminarily determine that bounties or grants are not being provided to
 manufacturers, producers, or exporters in the Philippines of canned tuna under the
 following programs.

 A. Articles of the Omnibus Investments Code. 
 1. The petition alleges that Article 45(b) of
 the Omnibus Investments Code--which allows registered enterprises to use accelerated
 depreciation--confers bounties or grants. Some companies depreciate their equipment
 over half its estimated useful life, as allowed under the Code, and others depreciate in the
 same manner using the Philippines Bureau of Internal Revenue regulations. Since these
 regulations have an identical provision for accelerated depreciation which is generally
 available, we preliminarily determine that Article 45(b) of the Code does not confer
 bounties or grants.

 2. The petition alleges that Article 48(a) of the Omnibus Investments Code-- which allows
 registered export producers to receive tax credits equal to the sales, compensating and
 specific taxes and duties paid on the supplies, raw materials and semi-manufactured
 products used in production, even if not physically incorporated in the exported
 products--confers bounties or grants. In its response the government of the Philippines
 stated that tax credits made available under this article are only for raw materials and
 semi-manufactured products used in production and actually forming a part of the
 product. They further stated that supplies that are not physically incorporated in the
 product are not eligible for this tax credit. On verification, we found companies which
 used Article 48(a) had received this tax credit for taxes paid on materials which are
 physically incorporated in the exported product. Since the tax credit does not exceed
 taxes actually paid, and the materials are physically incorporated in the product, we
 preliminarily determine that Article 48(a) of the Code does not confer bounties or grants.

 B. Marginal Deposit Requirements. The petition alleges that the Central Bank's relaxed
 cash deposit requirements on letters of credit opened by Philippine importers confers
 bounties or grants. The Philippine government's response states that the relaxed marginal
 deposit requirements is a guideline issued by the Bankers Association of the Philippines
 (BAP), which is not a government owned or controlled entity. On verification, we found
 that the BAP is an independent association which is not owned or controlled by the
 government. Since the BAP operates independently of the government and the Central
 Bank, and the guidelines reflect the commercial considerations of the BAP, we
 preliminarily determine that the BAP's guideline on relaxed marginal deposits does not
 confer bounties or grants.

 C. Philippine Export and Foreign Loan Guarantee Corporation. The petition alleges that
 the Philippine Export and Foreign Loan Guarantee Corporation
 (PHILGUARANTEE)--through which the government of the Philippines guarantees both
 local and foreign banking and financial institutions against any loss that may be incurred
 in connection with the grant of loans or credit accommodations to exporters or
 producers of export products--confers bounties or grants in that the guarantees lower the
 cost of credit available for Philippine exports. In its response the government of the
 Philippines stated that PHILGUARANTEE provides guarantees on bid, performance and
 advance payment bonds, as well as working capital loans. On verification, we found that
 guarantees are available from private institutions at the same charges as from
 PHILGUARANTEE. Also, these guarantees are generally available. Thus, we preliminarily
 determine that guarantees provided by PHILGUARANTEE do not confer bounties or
 grants.

 D. Development Bank Loans. The petition alleges that loans are granted at preferential
 interest rates to companies producing the products under investigation by the
 Development Bank of the Philippines (DBP), a government- owned bank.
 The Development Bank of the Philippines has the power to grant loans to any company
 in the agricultural or industrial sectors. In addition, their charter also allows them to
 grant loans to municipalities and individuals. On verification we found that in practice the
 loans are generally available, and that the bank granted loans only on the basis of
 commercial considerations. Thus, we preliminarily determine that loans from the
 Development Bank of the Philippines are generally available and therefore, do not
 confer bounties or grants.

 III. Programs Preliminarily Determined Not To Be Used

 We have preliminarily determined that the following programs which were identified in
 the notice of "Initiation of Countervailing Duty Investigation, Canned Tuna from the
 Philippines" are not being used by the manufacturers, producers, or exporters in the
 Philippines of canned tuna.

 A. Articles of the Omnibus Investments Code.
 1. The petition alleges that Article 45(a) of
 the Omnibus Investments Code confers a bounty or grant. Under this article, all
 enterprises registered with the Board of Investments may take a deduction from taxable
 income of all capitalized organizational and pre- operating expenses, over a period not
 more than ten years from the beginning of operations. From the responses and
 verification, we found that none of the companies deduct organizational and
 pre-operating expenses under 45(a) of the Code. Those companies which did take a
 deduction 

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 for pre-operating expenses did so under the Philippine Bureau of
 Internal Revenue regulations. Thus, we preliminarily determine that Article 45(a) of the
 Code has not been used.

 2. The petition alleges that Article 45(c) of the Omnibus Investments Code confers a
 bounty or grant. Under this article, a registered enterprise may carry forward all net
 operating losses incurred in any of the first ten years of operation. Such losses may be
 carried forward for six years immediately following the year in which the loss was
 incurred, and may be used as a deduction from taxable income. In their responses, the
 government of the Philippines and the companies stated that this program has not been
 used by any of the companies under investigation. On verification we found that no
 company has taken a deduction under this article. Thus, we preliminarily determine that
 Article 45(c) of the Code has not been used.

 3. Article 45(d) allows registered producers a tax exemption on imported capital
 equipment in the amount of 50 percent of the tariff duties and compensating tax payable
 on imported capital equipment and accompanying spare parts. Article 48(f) provides
 registered export producers with a simlilar exemption. Although one producer did
 receive a tax exemption on imported capital equipment, we were not able to ascertain at
 verification under which article it took this exemption due to its lack of cooperation.
 Therefore, the exemption was allocated to Article 48(f) and we preliminarily determine
 that Article 45(d) was not used.

 4. The petition alleges that Article 45(e) of the Omnibus Investments Code confers
 bounties or grants. Under this article, a registered enterprise which has purchased
 domestically produced equipment and received prior Board approval may take a tax
 credit equivalent to 100 percent of the value of compensating tax and customs duties that
 it would have paid had it imported the machinery, equipment and spare parts. In their
 response, the government of the Philippines and the companies stated that this
 program had not been used by any of the companies during 1982. On verification we
 found that none of the companies had taken this tax credit on domestically purchased
 capital equipment. Thus, we preliminarily determine that Article 45(e) of the Code had
 not been used.

 5. The petition alleges that Article 45(f) of the Omnibus Investments Code confers
 bounties or grants. This Article allows a registered enterprise to take a tax credit for taxes
 withheld on interest payments on foreign loans when no such credit is available to the
 lender-remittee in its own country and the registered enterprise has assumed the liability
 for payment of the tax due from the lender remittee.
 The government of the Philippines and the companies stated in their responses that
 Article 45(f) of the Code had not been used. Thus, we preliminary determined that Article
 45(f) of the Code has not been used.

 6. The petition alleges that Article 45(l) of the Omnibus Investments Code confers
 bounties or grants. This allows registered enterprise to take an additional deduction from
 taxable income of 50 percent of all expenses for labor training incurred for upgrading the
 productivity and efficiency of unskilled labor, provided that such deduction does not
 exceed 10 percent of all direct labor wages for a given year. The responses of the
 government of the Philippines and the companies stated that they had not used this
 program. Thus, we preliminarily determine that Article 45(l) of the Code has not been
 used.

 7. The petition alleges that Article 48(e) of the Omnibus Investments Code confers a
 bounty or grant. This Article allows a registered export producer an additional deduction
 from taxable income equal to one percent of the annual increase in its exports when it
 uses a new brand name that distinguishes its products from non-Philippine products. In
 their responses the government of the Philippines and the companies stated that none
 of the companies used this program. Thus, we preliminarily determine that Article 48(e)
 of the Code has not been used.

 8. The petition alleges that Article 51 of the Omnibus Investments Code confers bounties
 or grants. This article provides for financial assistance to registered enterprises through
 the preferential granting of government loans. In its response, the government of the
 Philippines stated that Article 51 of the Code merely sets forth a policy that government
 financial institutions should accord priority to applications for financing made by BOI
 registered firms. However, this policy is not binding on either government or other
 financial institutions. On verification we found that the policy Article 51 is a policy which
 in practice is not always followed. In addition, there is no evidence on the record that any
 company had access to loans as a result of this Article. Thus, we preliminarily determine
 that Article 51 has not been used.

 9. The petition alleges that Article 52 of the Omnibus Investments Code confers bounties
 or grants. This Article provides for financial assistance to registered enterprises through
 preference for private financial assistance. Article 52 also authorizes the Insurance
 Commissioner to allow insurance companies to invest in new issues of stock of registered
 enterprises. In their responses the companies stated they had not received any
 preferential loans. On verification we found that none of the outstanding company stock
 was held by any insurance companies. Thus, we preliminarily determine that Article 52 of
 the Code has not been used.

 10. The petition alleges that Article 53 of the Omnibus Investments Code confers bounties
 or grants. This Article provides for financial assistance to employees of registered
 enterprises through government loans for the purchase of shares of stock in registered
 enterprises, at a rate not to exceed six percent per annum. This article provides a benefit
 to private individuals who wish to purchase stock. Thus, it is preliminarily determined
 not to be used by any of the companies which produce or export canned tuna.

 11. The petition alleges that Article 54 of the Omnibus Investments Code confers bounties
 or grants. This Article provides for the creation of an Institute of Export Development
 which promotes exports by providing government funded assistance. The government of
 the Philippines stated in its response that the Institute of Export Development has not
 been operational in the last three years. It further stated that the tuna producers had
 never received any assistance from the Institute. In their responses, the companies
 stated that they had not received any assistance from the Institute. On verification, we
 found that the Institute had not been active for the past three years. Thus, we
 preliminarily determine that Article 54 of the Code has not been used.

 12. In addition to the articles discussed above, we investigated the remaining articles
 which comprise Book I of the Omnibus Investments Code. Based on information received
 in the responses and on verification, we preliminarily determine that the articles of the
 Code which are not discussed supra are not used by the producers, manufacturers or
 exporters of canned tuna from the Philippines.

 B. The petition alleges the government of the Philippines confers bounties or grants
 through the Export Credit Insurance and Guarantee Corporation which issues insurance
 policies and certificates of guarantee against credit risks arising our of or in connection
 with export transactions. In its response the 

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 government of the Philippines
 stated that although the corporation was established, it has never become operational.
 Thus, we preliminarily determine that the Export Credit Insurance and Guarantee
 Corporation has not been used.

 Verification

 In accordance with section 776(a) of the Act, all data used in making our final
 determinations subject to verification. We verified the data for five of the eight company
 responses used in making our preliminary determination.

 Suspension of Liquidation

 In accordance with section 703 of the Act, we are directing the U.S. Customs Service to
 suspend liquidation of all entries of tuna as defined in the "Scope of Investigation," supra,
 which are entered, or withdrawn from warehouse, for consumption, on or after date of
 publication of this notice in the Federal Register. The Customs Service shall require a cash
 deposit or bond for each such entry of the merchandise in the amount of 1.30 percent ad
 valorem of exports of canned tuna from the Philippines.
 This suspension will remain in effect until further notice.

 Public Comment

 In accordance with § 355.35 of the Commerce Department Regulations, if requested, we
 will hold a public hearing to afford interested parties an opportunity to comment on this
 preliminary determination at 10:00 a.m. on September 8, 1983, at the U.S. Department of
 Commerce, Conference Room D, 14th Street and Constitution Avene, N.W., Washington,
 D.C. 20230. Individuals who wish to participate in the hearing must submit a request to
 the Deputy Assistant Secretary for Import Administration Room 3099B, at the above
 address within ten days of this notice's publication. Request should contain: (1) The
 party's name, address, and telephone number; (2) the number of participants; (3) the
 reason for attending; and (4) a list of the issues to be discussed. In addition, prehearing
 briefs must be submitted to the Deputy Assistant Secretary by September 1, 1983. Oral
 presentations will be limited to issues raised in the briefs. All written views should be filed
 in accordance with 19 CFR 355.34, within thirty days of this notice's publication, at the
 above address and in at least ten copies.
 Dated: August 8, 1983.

 Alan F. Holmer,

 Deputy Assistant Secretary for Import Administration.

 [FR Doc. 83-22329 Filed 8-15-83; 8:45 am]

 BILLING CODE 3510-25-M