NOTICES
DEPARTMENT OF COMMERCE
International Trade Administration
[C-274-803]
Final Affirmative Countervailing Duty Determination: Steel Wire Rod From
Trinidad and Tobago
Wednesday, October 22, 1997
*55003
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: October 22, 1997.
FOR FURTHER INFORMATION CONTACT: Todd Hansen, Vincent Kane, or Sally Hastings,
Office of Antidumping/Countervailing Duty Enforcement, Group I, Office 1, Import
Administration, U.S. Department of Commerce, Room 1874, 14th Street and Constitution
Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-1276, 482-2815, or
482-3464, respectively.
Final Determination
The Department of Commerce ("the Department") determines that countervailable subsidies
are being provided to Caribbean Ispat Limited ("CIL"), a producer and exporter of steel wire
rod from Trinidad and Tobago. For information on the estimated countervailing duty
rates, please see the Suspension of Liquidation section of this notice.
Petitioners
The petition in this investigation was filed by Connecticut Steel Corp., Co- Steel Raritan, GS
Industries, Inc., Keystone Steel & Wire Co., North Star Steel Texas, Inc. and Northwestern
Steel and Wire (the petitioners), six U.S. producers of wire rod.
Case History
Since our preliminary determination on July 28, 1997 (62 FR 41927, August 4, 1997), the
following events have occurred:
We conducted verification in Trinidad and Tobago of the questionnaire responses of the
Government of Trinidad and Tobago ("GOTT") and of CIL from August 18 through August
26, 1997. Petitioners and respondents filed case and rebuttal briefs on September 12 and
September 17, 1997, respectively. A public hearing was held on September 19, 1997. On
September 16, 1997, the GOTT and the U.S. Government initialed a proposed suspension
agreement, whereby the GOTT agreed not to provide any new or additional export subsidies
on the subject merchandise and to restrict the volume of direct and indirect exports of
subject merchandise to the United States. On October 14, 1997, the U.S. Government and
the GOTT signed a suspension agreement (see, Notice of Suspension of Countervailing
Duty Investigation: Steel Wire Rod from Trinidad and Tobago which is being published
concurrently with this notice). Based on a request from petitioners on October 14, 1997, the
Department and the International Trade Commission ("ITC") are continuing this
investigation in accordance with section 704(g) of the Act. As such, this final determination
is being issued pursuant to section 704(g) of the Act.
Scope of Investigation
The products covered by this investigation are certain hot-rolled carbon steel and alloy
steel products, in coils, of approximately round cross section, between 5.00 mm (0.20
inch) and 19.0 mm (0.75 inch), inclusive, in solid cross- sectional diameter. Specifically
excluded are steel products possessing the above noted physical characteristics and
meeting the Harmonized Tariff Schedule of the United States ("HTSUS") definitions for (a)
stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; (e) free machining
steel that contains by
*55004
weight 0.03 percent or more of lead, 0.05 percent or more
of bismuth, 0.08 percent or more of sulfur, more than 0.4 percent of phosphorus, more
than 0.05 percent of selenium, and/or more than 0.01 percent of tellurium; or (f) concrete
reinforcing bars and rods.
The following products are also excluded from the scope of this investigation:
Coiled products 5.50 mm or less in true diameter with an average partial decarburization
per coil of no more than 70 microns in depth, no inclusions greater than 20 microns,
containing by weight the following: carbon greater than or equal to 0.68 percent; aluminum
less than or equal to 0.005 percent; phosphorous plus sulfur less than or equal to 0.040
percent; maximum combined copper, nickel and chromium content of 0.13 percent; and
nitrogen less than or equal to 0.006 percent. This product is commonly referred to as "Tire
Cord Wire Rod."
Coiled products 7.9 to 18 mm in diameter, with a partial decarburization of 75 microns or
less in depth and seams no more than 75 microns in depth; containing 0.48 to 0.73 percent
carbon by weight. This product is commonly referred to as "Valve Spring Quality Wire Rod."
The products under investigation are currently classifiable under subheadings
7213.91.3000, 7213.91.4500, 7213.91.6000, 7213.99.0030, 7213.99.0090,
7227.20.0000, and 7227.90.6050 of the HTSUS. Although the HTSUS subheadings are
provided for convenience and customs purposes, our written description of the scope of
this investigation is dispositive.
The Applicable Statute and Regulations
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 effective January 1,
1995 (the "Act"). All references to the Department's regulations at 19 CFR 355.34 refer to the
edition of the Department's regulations published April 1, 1997.
Injury Test
Because Trinidad and Tobago is a "Subsidies Agreement Country" within the meaning of
section 701(b) of the Act, the ITC is required to determine whether imports of wire rod
from Trinidad and Tobago materially injure, or threaten material injury to, a U.S.
industry. On April 30, 1997, the ITC published its preliminary determination finding that
there is a reasonable indication that an industry in the United States is being materially
injured or threatened with material injury by reason of imports from Trinidad and
Tobago of the subject merchandise (62 FR 23485).
Subsidies Valuation Information
Period of Investigation: The period for which we are measuring subsidies (the "POI") is
calendar year 1996.
Allocation Period: In the past, the Department has relied upon information from the U.S.
Internal Revenue Service ("IRS") on the industry-specific average useful life of assets in
determining the allocation period for nonrecurring subsidies. See General Issues Appendix
appended to Final Countervailing Duty Determination; Certain Steel Products from
Austria, 58 FR 37217, 37226 (July 9, 1993) ("General Issues Appendix"). However, in
British Steel plc. v. United States, 879 F. Supp. 1254 (CIT 1995) ("British Steel"), the U.S.
Court of International Trade (the "Court") ruled against this methodology. In accordance
with the Court's remand order, the Department calculated a company- specific allocation
period for nonrecurring subsidies based on the average useful life ("AUL") of non-renewable
physical assets. This remand determination was affirmed by the Court on June 4, 1996.
British Steel, 929 F. Supp. 426, 439 (CIT 1996).
In this investigation, the Department has followed the Court's decision in British Steel.
Therefore, for purposes of this determination, the Department has calculated a
company-specific AUL. Based on information provided by respondents, the Department has
determined that the appropriate allocation period for CIL is 15 years.
Equityworthiness: In analyzing whether a company is equityworthy, the Department
considers whether that company could have attracted investment capital from a
reasonable, private investor in the year of the government equity infusion based on
information available at that time. In this regard, the Department has consistently stated
that a key factor for a company in attracting investment capital is its ability to generate a
reasonable return on investment within a reasonable period of time.
In making an equityworthiness determination, the Department examines the following
factors, among others:
1. Current and past indicators of a firm's financial condition calculated from that firm's
financial statements and accounts;
2. Future financial prospects of the firm including market studies, economic forecasts, and
projects or loan appraisals;
3. Rates of return on equity in the three years prior to the government equity infusion;
4. Equity investment in the firm by private investors; and
5. Prospects in world markets for the product under consideration.
In start-up situations and major expansion programs, where past experience is of little use
in assessing future performance, we recognize that the factors considered and the relative
weight placed on such factors may differ from those used in the analysis of an established
enterprise.
For a more detailed discussion of the Department's equityworthiness criteria see the
General Issues Appendix at 37244 and Final Affirmative Countervailing Duty
Determinations: Certain Steel Products from France, 58 FR 37304 (July 9, 1993) ("Steel
from France").
In our preliminary determination, we determined that the Iron and Steel Company of
Trinidad and Tobago ("ISCOTT") was unequityworthy for the period 1986-1994.
Additional information and documents gathered at verification have given us cause to
review our preliminary determination. As discussed below, we determine that ISCOTT was
unequityworthy from June 13, 1984 to December 31, 1991. For a discussion of this
determination, see the section of this notice on "Equity Infusions."
Equity Methodology: In measuring the benefit from a government equity infusion to an
unequityworthy company, the Department compares the price paid by the government for
the equity to a market benchmark, if such a benchmark exists. A market benchmark can be
obtained, for example, where the company's shares are publicly traded. (See, e.g., Final
Affirmative Countervailing Duty Determinations: Certain Steel Products from Spain, 58
FR 37374, 37376 (July 9, 1993).)
In this investigation, where a market benchmark does not exist, the Department is following
the methodology described in the General Issues Appendix at 37239. Under this
methodology, equity infusions made into an unequityworthy firm are treated as grants.
Using the grant methodology for equity infusions into an unequityworthy company is based
on the premise that an unequityworthiness finding by the Department is tantamount to
saying that the company could not have attracted investment capital from a reasonable
investor in the infusion year based on the available information.
Creditworthiness: When the Department examines whether a
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company is
creditworthy, it is essentially attempting to determine if the company in question could
obtain commercial financing at commonly available interest rates. If a company receives
comparable long-term financing from commercial sources, that company will normally be
considered creditworthy. In the absence of comparable commercial borrowings, the
Department examines the following factors, among others, to determine whether a firm is
creditworthy:
1. Current and past indicators of a firm's financial health calculated from that firm's financial
statements and accounts;
2. The firm's recent past and present ability to meet its costs and fixed financial obligations
with its cash flow; and
3. Future financial prospects of the firm including market studies, economic forecasts, and
projects or loan appraisals.
In start-up situations and major expansion programs, where past experience is of little use
in assessing future performance, we recognize that the factors considered and the relative
weight placed on such factors may differ from those used in the analysis of an established
enterprise. For a more detailed discussion of the Department's creditworthiness criteria,
see, e.g., Steel from France at 37304, and Final Affirmative Countervailing Duty
Determination; Certain Steel Products from the United Kingdom, 58 FR 37393, 37395 (July
9, 1993) ("Certain Steel from the U.K.").
In our preliminary determination, we determined that ISCOTT was uncreditworthy for the
period 1986-1994. Additional information and documents gathered at verification have
given us cause to review our preliminary determination. As discussed below, we determine
that ISCOTT was uncreditworthy during the period June 13, 1984 to December 31, 1994.
ISCOTT did not show a profit for any year during this period and continued to rely upon
support from the GOTT to meet fixed payments. The company's gross profit ratio was
consistently negative in each of the years in which it had sales. Additionally, the company's
operating profit (net income before depreciation, amortization, interest and financing
charges) was consistently negative. The firm continued to show an operating loss in each
year it was in production, and was never able to cover its variable costs.
Regarding the period prior to June 13, 1984, and after December 31, 1994, we did not
examine ISCOTT's creditworthiness because ISCOTT did not receive any countervailable
loans, equity infusions, or nonrecurring grants during those periods.
Discount Rates: We have calculated the long-term uncreditworthy discount rates for the
period 1984 through 1994, to be used in calculating the countervailable benefit from
nonrecurring grants and equity infusions, using the same methodology described in our
preliminary determination. Specifically, consistent with our practice (described in Final
Affirmative Countervailing Duty Determination: Grain-Oriented Electrical Steel from
Italy, 59 FR 18357, 18358 (April 18, 1994) ("GOES")), we took the highest prime term loan
rate available in Trinidad and Tobago in each year as listed in the Central Bank of
Trinidad and Tobago: Handbook of Key Economic Statistics and added to this a risk
premium of 12% of the median prime lending rate.
Privatization Methodology: In the General Issues Appendix at 37259, we applied a new
methodology with respect to the treatment of subsidies received prior to the sale of a
company (privatization).
Under this methodology, we estimate the portion of the purchase price attributable to prior
subsidies. We compute this by first dividing the privatized company's subsidies by the
company's net worth for each year during the period beginning with the earliest point at
which nonrecurring subsidies would be attributable to the POI (in this case 1982 for CIL)
and ending one year prior to the privatization. We then take the simple average of the
ratios. The simple average of these ratios of subsidies to net worth serves as a reasonable
surrogate for the percent that subsidies constitute of the overall value of the company.
Next, we multiply the average ratio by the purchase price to derive the portion of the
purchase price attributable to repayment of prior subsidies. Finally, we reduce the benefit
streams of the prior subsidies by the ratio of the repayment amount to the net present value
of all remaining benefits at the time of privatization.
In the current investigation, we are analyzing the privatization of ISCOTT in 1994.
Based upon our analysis of the petition and responses to our questionnaires, we determine
the following:
I. Programs Determined To Be Countervailable
A. Export Allowance Under Act No. 14
Under the provisions of Act No. 14 of 1976, as codified in Section 8(1) of the Corporation
Tax Act, companies in Trinidad and Tobago with export sales may deduct an export
allowance in calculating their corporate income tax. The allowance is equal to the ratio of
export sales over total sales multiplied by net income. Export sales to certain Caricom
countries are not eligible for the export allowance and are excluded from the amount of
export sales for purposes of calculating the export allowance.
A countervailable subsidy exists within the meaning of section 771(5) of the Act where
there is a financial contribution from the government which confers a benefit and is specific
within the meaning of section 771(5A) of the Act.
We have determined that the export allowance is a countervailable subsidy within the
meaning of section 771(5) of the Act. The export allowance provides a financial
contribution because in granting it the GOTT forgoes revenue that it is otherwise due. The
export allowance is specific, under section 771(5A)(B), because its receipt is contingent
upon export performance.
We verified that CIL made a deduction for the export allowance on its 1995 income tax
return, which was filed during the POI. Because the export allowance is claimed and realized
on an annual basis in the course of filing the corporate income tax return, we have
determined that the benefit from this program is recurring. To calculate the countervailable
subsidy from the export allowance, we divided CIL's tax savings during the POI by the total
value of its export sales which were eligible for the export allowance during the POI. On this
basis, we determine the countervailable subsidy from this program to be 3.72 percent ad
valorem.
B. Equity Infusions
In 1978, ISCOTT and the GOTT entered into a Completion and Cash Deficiency Agreement
("CCDA") with several private commercial banks in order to obtain a part of the financing
needed for construction of ISCOTT's plant. Under the terms of the CCDA, the GOTT was
obligated to provide certain equity financing toward completion of construction of ISCOTT's
plant, to cover loan payments to the extent not paid by ISCOTT, and to provide cash as
necessary to enable ISCOTT to meet its current liabilities.
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In Carbon Steel Wire Rod from Trinidad and Tobago: Final Affirmative Countervailing
Duty Determination and Countervailing Duty Order, 49 FR 480 (January 4, 1984)
("Wire Rod I"), the Department determined that payments or advances made by the GOTT to
ISCOTT during its start-up years were not countervailable. In making this determination,
the Department took into consideration the fact that it is not unusual for a large, capital
intensive project to have losses during the start-up years, the fact that several independent
studies forecast a favorable outcome for ISCOTT, and the fact that ISCOTT enjoyed several
important natural advantages. On these bases, advances to ISCOTT through April of 1983,
the end of the original POI, were found to be not countervailable.
Given the Department's decision in Wire Rod I that the GOTT's initial decision to invest in
ISCOTT and its additional investments through the first quarter of 1983 were consistent
with commercial considerations, the issue presented in this investigation is whether and at
what point the GOTT ceased to behave as a reasonable private investor. During the period
from 1983 to 1989, a period of continuing losses, ISCOTT and the GOTT commissioned
several studies to determine the financially preferable course of action for the company.
The information contained in these studies is business proprietary, and is discussed further
in a memorandum dated October 14, 1997, from Team to Richard W. Moreland, Acting
Deputy Assistant Secretary for AD/CVD Enforcement ("Equity Memorandum"), a public
version of which is available in the public file for this investigation located in the Central
Records Unit, Department of Commerce, HCHB Room B-099 ("Public File"). Based on
information contained in the studies and our review of the results of ISCOTT's operations
over the period under consideration, we determine that the GOTT's investments made after
June 13, 1984, were no longer consistent with the practice of a reasonable private investor.
ISCOTT continued to be unable to cover its variable costs, yet the GOTT continued to
provide funding to ISCOTT. Despite ISCOTT's continued losses and no reason to believe that
under the conditions in place at that time there was any hope of improvement, the GOTT did
not make further investment contingent upon actions that would have been required by a
reasonable private investor.
In 1988, P.T. Ispat Indo ("Ispat"), a company affiliated with CIL, came forward and
expressed an interest in leasing the plant. On April 8, 1989, the GOTT and Ispat reached
agreement on a 10-year lease agreement with an option for Ispat to purchase the assets
after five years. The first few years of the lease were marked by the GOTT learning to assume
the role of a lessor and the management of CIL working to become familiar with the
operations of ISCOTT and to develop relations with the former ISCOTT employees. Our
review of internal documents, financial projections and historical financial data indicate
that after December 31, 1991, the operations of the ISCOTT plant under CIL and ISCOTT's
financial condition improved such that we determine that investments in ISCOTT after this
date were consistent with the practice of a reasonable private investor. See, Equity
Memorandum for further discussion of the information used in making this determination.
We have determined that the GOTT equity infusions into ISCOTT during the period from
June 13, 1984 through December 31, 1991 constitute countervailable subsidies in
accordance with section 771(5) of the Act. We determine that these equity infusions confer
a benefit under 771(5)(E)(i) of the Act because these investments were not consistent with
the usual investment practice of private investors. Also, they are specific within the
meaning of section 771(5A) because they were limited to one company, ISCOTT.
To calculate the benefit, we followed the "Equity Methodology" described above. The benefit
allocated to the POI was adjusted according to the "Privatization Methodology" described
above. The adjusted amount was divided by CIL's total sales of all products during the POI.
On this basis, we calculated a countervailable subsidy rate of 11.12 percent ad valorem.
C. Benefits Associated With the 1994 Sale of ISCOTT's Assets to CIL
In December 1994, CIL, the company created by Ispat to lease and operate the plant,
exercised the purchase option in the plant lease and purchased the assets of ISCOTT. After
the sale of its assets, ISCOTT was nothing but a shell company with liabilities exceeding its
assets. CIL, on the other hand, had purchased most of ISCOTT's assets without being
burdened by ISCOTT's liabilities.
The liabilities remaining with ISCOTT after the sale of productive assets to CIL had to be
repaid, assumed, or forgiven. In 1995, the National Gas Company of Trinidad and Tobago
Limited ("NGC"), which was owned by the GOTT, and the National Energy Corporation of
Trinidad and Tobago Limited ("NEC"), a wholly owned subsidiary of NGC, wrote off loans
owed to them by ISCOTT totaling TT $77,225,775. Similarly, Trinidad and Tobago
National Oil Company Limited ("TRINTOC"), also owned by the GOTT, wrote off debts owed
by ISCOTT totaling TT $10,492,830 as bad debt. While no specific government act
eliminated this debt, CIL (and consequently the subject merchandise) received a benefit as
a result of this debt being left behind in ISCOTT.
We have determined that this debt forgiveness constitutes a countervailable subsidy in
accordance with section 771(5) of the Act because it represents a direct transfer of funds.
Also, it is specific within the meaning of section 771(5A) because it was limited to one
company.
In this case, to calculate the benefit during the POI, we used our standard grant
methodology and applied an uncreditworthy discount rate. The debt outstanding after the
December 1994 sale of assets to CIL (adjusted as described below) was treated as grants
received at the time of the sale of the assets.
After the 1994 sale of assets, certain non-operating assets (e.g., cash and accounts
receivable) remained with ISCOTT. These assets were used to fund repayment of ISCOTT's
remaining accounts payable. In order to account for the fact that certain assets, including
cash, were left behind in ISCOTT, we have subtracted this amount from the liabilities
outstanding after the 1994 sale of assets.
The benefit allocated to the POI was adjusted according to the "Privatization Methodology"
described above. The adjusted amount was divided by CIL's total sales of all products
during the POI. On this basis, we determine the net subsidy to be 1.17 percent ad valorem.
D. Provision of Electricity
According to section 771(5)(E) of the Act, the adequacy of remuneration with respect to a
government's provision of a good or service
* * * shall be determined in relation to prevailing market conditions for the good or service
being provided or the goods being purchased in the country which is subject to the
investigation or review. Prevailing market conditions include price, quality, availability,
marketability, transportation, and other conditions of purchase or sale.
Particular problems can arise in applying this standard when the government is the sole
supplier of the good or service in the country or within the area where the respondent is
located. In this situation, there may be no alternative market prices available in the country
(e.g., private prices,
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competitively-bid prices, import prices, or other types of
market reference prices). Hence, it becomes necessary to examine other options for
determining whether the good has been provided for less than adequate remuneration. This
consideration of other options in no way indicates a departure from our preference for
relying on market conditions in the relevant country, specifically market prices, when
determining whether a good or service is being provided at a price which reflects adequate
remuneration.
With respect to electricity, some of the options may be to examine whether the government
has followed a consistent rate making policy, whether it has covered its costs, whether it has
earned a reasonable rate of return in setting its rates, and/or whether it applied market
principles in determining its rates. Such an approach is warranted where it is only the
government that provides electricity within a country or where electricity cannot be sold
across service jurisdictions within a country and there are divergent consumption and
generation patterns within the service jurisdictions.
The Trinidad and Tobago Electric Commission ("TTEC"), which is wholly-owned by the
GOTT, is the sole supplier of electric power in Trinidad and Tobago. For billing purposes,
TTEC classifies electricity consumers into one of the following categories: residential,
commercial, industrial, and street lighting. Industrial users are further classified into one of
four categories depending on the voltage at which they take power and the size of the load
taken. CIL is the sole user in the very large load category taking its power at 132 kV for
loads over 25,000 KVA. Other large industrial users take power at 33 kV, 66 kV or 132 kV
at loads from 230 Volts up to 25,000 KVA.
TTEC's rates and tariffs for the sale of electricity are set by the Public Utilities Commission
("PUC"), an independent authority. In setting electricity rates, the PUC takes into account
cost of service studies done by TTEC. These studies are submitted to the PUC, where they
are reviewed by teams of economists, statisticians, and auditors. Public hearings are held
and views expressed orally and in writing. After considering all of the views and studies
submitted, the PUC issues detailed orders with the new rates and explanations of how they
were calculated. In establishing these rates, the PUC is required by section 32 of its
regulations to ensure that the new rates will cover costs and expenses and allow for a
return.
The electricity rates in effect during the POI were based on cost of service studies for 1987
and 1991. Based on these studies and staff audit reports, the PUC in 1992 issued Order
Number 80 with the new electricity rates and a lengthy explanation of the bases for these
rates. The order allowed for a specified return to TTEC on its sales of electricity. In 1993 and
1994, the first two years following the order, TTEC was profitable for the first time in years.
However, TTEC had large losses in 1995 and losses in 1996 of about half the 1995 losses.
As noted above, TTEC is the only supplier in Trinidad and Tobago of electricity.
Consequently, there are no competitively-set, private benchmark prices in Trinidad and
Tobago to use in determining whether TTEC is receiving adequate remuneration within the
meaning of section 771(5)(E) of the Act. Lacking such benchmarks, the only bases we have
for determining what constitutes adequate remuneration are TTEC's costs and revenues.
Despite PUC's mandate to set rates that will cover the costs of providing electricity plus an
adequate return, past history indicates that this directive has seldom been met. In addition,
evidence in the cost of service studies, including the most recent cost of service study
prepared in 1997, indicates that TTEC did not receive adequate remuneration on its sales of
electricity to CIL. This evidence is proprietary and is discussed in the October 14, 1997
proprietary memorandum entitled Adequate Remuneration for Electricity. Consequently,
we determine that the GOTT is bestowing a benefit on CIL through TTEC's provision of
electricity. We further determine that this benefit is specific because CIL is the only user in
its customer category and, hence, the only company paying fees and tariffs at that rate.
Adequacy of remuneration is a new statutory provision which replaced "preferentiality" as
the standard for determining whether the government's provision of a good or service
constitutes a countervailable subsidy. The Department has had no experience
administering section 771(5)(E) and Congress has provided no guidance as to how the
Department should interpret this provision. This case and the other concurrent wire rod
cases, mark the first instances in which we are applying the new standard. We anticipate that
our policy in this area will continue to be refined as we address similar issues in the future.
We calculated the benefit for electricity by comparing CIL's actual electricity rate in 1996
with the rate that would have yielded an adequate return to TTEC, as calculated in its 1996
cost of service study. (We used the cost of service study to calculate the benefit as there was
no suitable market- based benchmarks for electricity in Trinidad and Tobago.) We
divided the total shortfall based on CIL's POI electricity consumption by CIL's total sales of
all products during the POI. On this basis, we calculated a countervailable subsidy rate of
1.46 percent ad valorem.
II. Programs Determined to Be Not Countervailable
A. Import Duty Concessions under Section 56 of the Customs Act
Section 56 of the Customs Act of 1983 provides for full or partial relief from import duties
on certain machinery, equipment, and raw materials used in an approved industry. The
approved industries that may benefit from this relief are listed in the Third Schedule to
Section 56. In all, 76 industries are eligible to qualify for relief under Section 56.
Companies in these industries that are seeking import duty concessions apply by letter to
the Tourism and Industries Development Company, which reviews the application and
forwards it with a recommendation to the Ministry of Trade and Industry. If the Ministry of
Trade and Industry approves the application, the applicant receives a Duty Relief License,
which specifies the particular items for which import duty concessions have been
authorized. CIL received import duty exemptions under Section 56 of the Customs Act
during the POI.
In its June 30, 1997, supplemental response, the GOTT provided a breakdown by industry
of the number of licenses issued during the first six months of the POI. During the POI, the
Ministry of Trade and Industry issued a large number of licenses to a wide cross-section of
industries. Some of the licenses were new issuances and others were renewals of licenses
previously issued. The breakdown of licenses by industry indicated that the recipients of
the exemption were not limited to a specific industry or group of industries. The breakdown
also indicated that the steel industry was not a predominant user of the subsidy nor did it
receive a disproportionate share of benefits under this program. For these reasons, we
determine that import duty concessions under Section 56 of the Customs Act are not
limited to a specific industry or group of industries and, hence, are not countervailable.
*55008
B. Point Lisas Industrial Estate Lease
As noted above in the Provision of Electricity section of this notice, particular problems can
arise in applying the standard for adequate remuneration when the government is the sole
supplier of the good or service in the country or within the area where the respondent is
located. With respect to the leasing of land, some of the options to consider in determining
whether the good has been provided for less than adequate remuneration may be to
examine whether the government has covered its costs, whether it has earned a reasonable
rate of return, and/or whether it applied market principles in determining its prices. In the
instant case, we have found no alternative market reference prices to use in determining
whether the government has provided (leased) the land for less than adequate
remuneration. As such, we have examined whether the government's price was determined
according to the same market factors that a private lessor would use in setting lease rates
for a tenant.
The Point Lisas Industrial Port Development Company ("PLIPDECO") owns and operates
Point Lisas Industrial Estate. Prior to 1994, PLIPDECO was 98 percent government-owned.
Since then, PLIPDECO's issued share capital has been held 43 percent by the government,
eight percent by Caroni Limited, a wholly-owned government entity, and 49 percent by
2,500 individual and corporate shareholders whose shares are publicly traded on the
Trinidad and Tobago Stock Exchange. We were unable to find any privately-owned
industrial estates in Trinidad and Tobago to provide competitively-set, private,
benchmark rates to determine the adequacy of PLIPDECO's lease rates.
ISCOTT, the predecessor company to CIL, entered into a 30-year lease contract for a site at
Point Lisas in 1983, retroactive to 1978. The 1983 lease rate was revised in 1988. In 1989,
the site was subleased to CIL at the revised rental fee. In 1994, ISCOTT and PLIPDECO
signed a novation of the lease whereby ISCOTT's name was replaced on the lease by CIL's.
During the POI, CIL paid the 1988 revised rental fee for the site.
Under section 771(5) of the Act, in order for a subsidy to be countervailable it must, inter
alia, confer a benefit. In the case of goods or services, a benefit is normally conferred if the
goods or services are provided for less than adequate remuneration. The adequacy of
remuneration is determined in relation to prevailing market conditions for the good or
service provided in the country of exportation.
In establishing lease rates for sites in the industrial estate, PLIPDECO uses a standard
schedule of lease rates as a starting point for negotiating with prospective tenants. The
standard lease rates reflect PLIPDECO's evaluation of the market value of land in the estate.
Individual rates are negotiated based on a variety of factors, such as the size of the lot, the
type of lease, the type of business, the attractiveness of the tenant, and the date on which
the lease contract was signed. Because rates are negotiated individually with each tenant,
the rate paid by CIL (and other tenants) is specific.
The site leased by ISCOTT in 1983 and now occupied by CIL is the largest site in the Point
Lisas Industrial Estate with an overall area that is considerably more than double the size of
the next largest site. After CIL's site and the next largest, the size of the remaining sites
drops significantly. At verification, we examined leases of other sites in the estate and found
only one site with a 30-year lease that was signed contemporaneously with CIL's lease. The
remaining leases examined had terms of 99 years, or 30-year leases that were signed much
later than CIL's. The method of calculating the lease rate on a 99-year lease is fundamentally
different from the calculation on a 30-year lease, because tenants with 99-year leases
effectively purchased the land at the start of the lease, making only token annual lease
payments thereafter.
Tenants with 30-year leases make substantial annual lease payments throughout the lease
but no large initial payment. Therefore, we decided not to compare a 99-year lease rate to
CIL's 30-year lease rate. Eliminating the 99-year leases left only one lease with a site that
was somewhat comparable in size to CIL's site. CIL's lease fee per square meter was in line
with the lease fee for the next most comparable site.
Aside from the lease contract on the next most comparable site, we have no other readily
available benchmark or guideline to determine whether the lease rate paid by CIL provides
adequate remuneration to PLIPDECO. The standard lease cannot serve as an appropriate
benchmark because it is used as the starting point for negotiations. All of the leases
examined at verification had rates below the standard rate. Aside from the next largest site,
the leases for other sites in the estate were also found to be unsuitable. The disparity in both
the sizes of these leases and the years in which they were signed when compared with CIL's
site and lease rendered their use inappropriate. Further, we found no privately owned
industrial estates in Trinidad and Tobago. Therefore, in addition to a direct comparison
of CIL's lease rate with that of the next most similar site, we also considered other factors in
determining whether PLIPDECO received adequate remuneration.
PLIPDECO considered ISCOTT to be the anchor tenant in the estate because it was the first
company to locate in the estate, and because of its size and its role as the first steel producer
in Trinidad and Tobago. Further, ISCOTT's annual lease payments provided a
considerable cash flow to PLIPDECO, especially in the early years of the estate when
PLIPDECO was in need of funds for continued development. In addition, ISCOTT was
expected to draw other companies into the estate. As we found at verification, PLIPDECO's
expectations that ISCOTT would draw other companies into the estate were, in fact,
realized. Although a precise dollar value cannot be placed on these factors, PLIPDECO took
them into consideration when establishing ISCOTT's lease rate. That PLIPDECO took these
factors into consideration is an indication that its negotiations were intended to assure
adequate remuneration on its lease to CIL.
During the years for which we have information, 1992 through 1995, PLIPDECO has been
consistently profitable. In addition, PLIPDECO's successful public stock offering of 49
percent of its shares in 1994 demonstrates that investors viewed the company as a good
investment.
All of these facts support our determination that PLIPDECO is a company that has
succeeded in achieving adequate remuneration in its dealings with CIL and with other
tenants in the estate. Therefore, we determine that CIL's lease rates have provided adequate
remuneration for its site in the Point Lisas Industrial Estate.
C. Provision of Natural Gas
As noted above in the Provision of Electricity section of this notice, particular problems can
arise in applying the standard for adequate remuneration when the government is the sole
supplier of the good or service in the country or within the area where the respondent is
located. With respect to the provision of natural gas, some of the options may be to examine
whether the government has covered its costs, whether it has earned a reasonable rate of
return, and/or whether it applied market principles in determining its prices. In the instant
case, we have found no alternative market reference
*55009
prices to use in determining
whether the government has provided natural gas for less than adequate remuneration. As
such, we have examined whether the government earned a reasonable rate of return and
whether the government applied market principles in determining its prices.
NGC is the sole supplier of natural gas to industrial and commercial users in Trinidad and
Tobago. NGC provides gas pursuant to individual contracts with each of its customers.
Natural gas prices to small consumers are fixed prices with an annual escalator. Prices to
large consumers are negotiated individually based on annual volume, contract duration,
payment terms, use made of the gas, any take or pay requirement in the contract, NGC's
liability for damages, and whether new pipeline is required. Prices must be approved by
NGC's Board of Directors. Although NGC is 100 percent government-owned, the GOTT
indicates that none of the current members of the board is a government official nor do any
government laws or regulations regulate the pricing of natural gas.
The price paid by CIL for natural gas during the POI was established in a January 1, 1989
contract between ISCOTT and NGC that ISCOTT assigned to CIL on April 28, 1989. Average
price data submitted by the GOTT for large industrial users of natural gas indicate that the
price paid by CIL during the POI was in line with the average price paid by large industrial
users overall.
At verification, NGC officials explained that the company operates on a strictly commercial
basis, purchasing natural gas at the lowest prices it can negotiate and selling and
distributing the gas at prices that assure the company's profitability. The years for which we
have information on NGC's profitability, 1992 to 1995, demonstrate that the company has
been consistently profitable.
Clearly, in its contract negotiations and its overall operations, NGC has demonstrated that it
realizes an adequate return on its sales and distribution of natural gas to CIL and its other
customers. For this reason, we have determined that the prices paid by CIL, which are in
line with those paid by other large consumers, provide adequate remuneration to NGC for
the natural gas supplied to CIL. Therefore, we have determined that NGC's provision of
natural gas to CIL is not a countervailable subsidy under section 771(5) of the Act.
IV. Programs Determined To Be Not Used
A. Export Promotion Allowance
B. Corporate Tax Exemption
V. Program Determined Not To Exist
A. Loan Guarantee From the Trinidad and Tobago Electricity Commission
By 1988, ISCOTT had accumulated TT $19,086,000 in unpaid electricity bills owed to TTEC.
To manage this debt, TTEC obtained a loan from the Royal Bank of Trinidad and Tobago
which enabled TTEC to more readily carry the receivable due from ISCOTT. By 1991,
ISCOTT extinguished its debt to TTEC.
At no time during this period did TTEC provide a guarantee to ISCOTT which enabled
ISCOTT to secure a loan to settle the outstanding balance on its account. The financing
obtained by TTEC from the Royal Bank benefitted TTEC rather than ISCOTT because it
allowed TTEC to have immediate use of funds that otherwise would not have been available
to it. On this basis, we determine that TTEC did not provide a loan guarantee to ISCOTT for
purposes of securing a loan to settle the outstanding balance owed to TTEC. Therefore, we
determine that this program did not exist.
Interested Party Comments
Comment 1: Treatment of shareholder advances: Petitioners claim that GOTT advances to
ISCOTT should be treated as grants rather than as equity. In petitioners' view, these
advances had none of the characteristics of debt or equity, such as provisions for
repayment, dividends, or any additional claim on funds in the event of liquidation.
Petitioners cite to Certain Hot Rolled Lead and Bismuth Carbon Steel Products from France,
58 FR 6221 (January 27, 1993) ("Leaded Bar from France"), where the Department treated
shareholder advances as grants because no shares were distributed when the advances were
made, despite the fact that shares were issued at a later date. Petitioners point out that the
GOTT received no shares at the time of its advances to ISCOTT.
Respondents claim that the advances should be treated as equity. Respondents note that
ISCOTT's annual reports consistently state that it was the practice for advances to be
capitalized as equity, and that in fact, ISCOTT issued shares for nearly all advances through
1987. In addition, according to respondents, the CCDA states that pending the issuance of
any shares, any payment from the GOTT shall constitute paid-up share capital. Respondents
further note that Wire Rod I, the Department characterized GOTT funding as equity
contributions. Respondents cite to Certain Steel from the U.K. at 37395, where the
Department stated that despite the fact that the U.K. government did not receive any
additional ownership, such as stock or additional rights, in return for the capital provided
to BSC under Section 18(1) since it already owned 100 percent of the company, such
advances to BSC were treated as equity.
Department's Position: We agree with respondents and have continued to treat advances
from the GOTT as equity at the time of receipt. In Certain Steel from the U.K., as in this case,
requests for funding from the government were examined on a case-by-case basis. This
treatment is consistent with our treatment of advances in Wire Rod I and our preliminary
determination in this proceeding. Further, similar to Certain Steel from the U.K., ISCOTT
issued additional shares to the GOTT on several occasions to reduce the balance of the
shareholder advances, whereas in Leaded Bar from France there was no understanding that
shareholder advances were to be converted to equity, and conversion occurred only as
part of a government-sponsored debt restructuring.
Comment 2: Equityworthiness: Petitioners claim that if the Department treats the
stockholder advances as equity, ISCOTT's financial statements and information gathered at
verification demonstrate that ISCOTT was unequityworthy after March 1983, and the
Department should view the provision of equity as inconsistent with the practice of a
reasonable private investor. Petitioners note that ISCOTT had losses in every year from
1982 through 1994. Petitioners argue that ISCOTT's inability to cover its variable costs
while operating the steel plant demonstrates that the company should have been shut
down. Petitioners urge the Department to follow its practice of placing greater reliance on
past indicators rather than on flawed studies projecting dubious future expectations, which
respondents have pointed to as evidence of ISCOTT's equityworthiness. Petitioners cite to
the 1983 Report of the Committee Appointed by Cabinet to Consider the Future of ISCOTT
("Committee Report"), where under any of the options considered, ISCOTT was projected to
show a loss, as further evidence that ISCOTT was unequityworthy.
Respondents claim that the financial ratios in this case must be interpreted in the context of
a start-up enterprise.
*55010
Respondents contend that a venture capitalist would
recognize that a start-up enterprise will incur losses for several years. Second, respondents
point out that while the Committee Report cited by petitioners predicted an overall loss
over the next five years, the trend was decidedly positive, with increasing profits projected
for the last two years included in the study, 1986 and 1987.
Department's Position: We agree with petitioners, in part. At some point, a reasonable
private investor would have come to question ISCOTT's continued inability to achieve
forecasted operating results, and would have made future funding contingent on timely,
fundamental changes in the company's operations, shutting down the plant, or privatizing
ISCOTT. As discussed above in the Equity Infusions section of this notice, we are including
advances from the GOTT to ISCOTT during the period June 13, 1984 through December 31,
1991, in our calculation of CIL's countervailable subsidy rate.
Comment 3: Loan guarantees under the CCDA: Respondents claim that the GOTT's principal
and interest payments on ISCOTT's behalf made pursuant to loan guarantees under the
CCDA are not countervailable. In the 1984 final, the Department found that the GOTT's loan
guarantees under the CCDA were on terms consistent with commercial considerations.
Therefore, payments which the GOTT made on these loans pursuant to the guarantees
should also be considered consistent with commercial considerations. In Carbon Steel Wire
Rod from Saudi Arabia, 51 FR 4206 (February 3, 1986), the Department determined that
funding in 1983 made pursuant to a prior agreement, which was on terms consistent with
commercial considerations, was not countervailable, even though funds provided pursuant
to a new investment decision in 1983 were countervailable because the company was no
longer equityworthy. Similarly, in Final Affirmative Countervailing Duty Determination:
Certain Corrosion resistant Carbon Steel Flat Products from New Zealand, 58 FR 37366,
37368 (July 9, 1993), the Department confirmed that a government's payment of loans
under a guarantee agreement is not countervailable if the underlying guarantee was
commercially reasonable.
Respondents also seek to clarify that even if the GOTT had liquidated ISCOTT, the GOTT
could not have avoided its payment obligations. As of 1983, all funding under the loans
covered by the CCDA had been drawn down, and were subject to guarantees by the GOTT.
Petitioners argue that when the Department determined in 1984 that the GOTT's decision to
enter into the CCDA was rational, it was not at that time determining that any and all future
payments under the CCDA would necessarily be consistent with the private investor
standard. Petitioners contend that if the GOTT had acted as a reasonable private investor, it
would have shut ISCOTT down and stopped the financial hemorrhaging. Instead, petitioners
argue, both ISCOTT and the GOTT were too preoccupied with non-commercial
considerations to consider the reasonable course of action.
Department's Position: We disagree with respondents that the GOTT was inexorably
committed to make continued payments on ISCOTT's behalf as a result of the loan
guarantees contained in the CCDA. Had the GOTT's actions been consistent with those of a
reasonable private investor, as a controlling shareholder in ISCOTT, the GOTT would have
sought to minimize losses. Shutting down the plant would have been less expensive than
continuing to operate the plant in such a manner that no projection was ever achieved and
variable costs were never covered by revenues. The GOTT constructed the ISCOTT plant
because it had studies indicating the plant was a viable investment. When CIL leased the
ISCOTT plant, it demonstrated that ISCOTT was viable. The GOTT could have pursued less
costly alternatives than continued funding of ISCOTT's operations with no requirement that
timely and demonstrable actions, including consideration of shutting down the plant, be
taken to reduce or eliminate the amount needed to fulfill all of its obligations under the
CCDA.
Comment 4: Countervailability of cash deficiency payments under the CCDA: Respondents
claim that the CCDA imposed a further legal obligation on the GOTT that was distinct from
its commitment to meet ISCOTT's CCDA debt service obligations. Specifically, the CCDA
required the GOTT to provide funds to ISCOTT to cover any other cash deficiency, such as
an operating loss. Respondents argue that both external and internal studies demonstrate
that GOTT's decisions to cover these cash deficiencies were consistent with those of a
reasonable private investor.
Petitioners reply that the Department's prior determination that the GOTT's decision to
enter into the CCDA was rational has no bearing on whether or not subsequent decisions to
fund money-losing operations was rational. Petitioners contend that the rationality of
guarantee payments must be evaluated anew each time, and that the GOTT should have
realized that shutting down the ISCOTT plant would have been the least cost available
alternative.
Department's Position: We agree with petitioners that our 1984 decision regarding the CCDA
did not give the GOTT license to provide continued funding to ISCOTT immune from
potential countervailability under U.S. law. A reasonable private investor acting on a
guarantee would pursue the least-cost alternative, and would ensure that the amount of
funding under such a guarantee is truly necessary. We are not persuaded that the GOTT's
actions were consistent with those of a reasonable private investor, as discussed above in
the Equity Infusions section of this notice.
Comment 5: Post-lease funding of ISCOTT: Respondents claim that after ISCOTT's assets
were leased to CIL in May 1989, any funds provided to ISCOTT by the GOTT did not provide
a subsidy to CIL's 1996 production. Respondents note that CIL has always been a separate
and distinct company, with no ownership interest in, or other affiliation with, ISCOTT.
Therefore, according to respondents, there is no basis for attribution of ISCOTT's subsidies
to CIL. Respondents note that as discussed in Final Affirmative Countervailing Duty
Determination; Certain Hot Rolled Lead and Bismuth Carbon Steel Products from the United
Kingdom, 58 FR 6237 (January 27, 1993) ("Leaded Bar from the U.K."), the Department did
not attribute any subsidies received by BSC after it had spun off its Special Steels Division
into a joint venture, United Engineering Steels Limited ("UES"). In that case the Department
did not attribute any subsidies received by BSC after the spin off to the joint venture, stating
that there was "no evidence of any mechanisms for passing through subsidies from British
Steel plc to UES (e.g., cash infusions) after the formation of the joint venture. Therefore we
determine that any benefits received by BSC after the formation of the joint venture do not
pass through to UES." Respondents contend that, similarly, in this case there is no evidence
that subsidies received by ISCOTT after CIL took control of the steel-making facilities
continued to benefit CIL.
Respondents further contend that any past subsidies found to have been received by
ISCOTT cannot be found to have conferred a benefit on CIL's production of wire rod in 1996,
as required by section 771(5)(E) of the Act. Respondent's argue that CIL never received any
of the advances provided to ISCOTT, and note that CIL remained
*55011
a completely
separate company from ISCOTT after purchasing ISCOTT's plant in an arm's length
transaction. Respondents argue that the Department did not articulate how CIL received a
benefit from financial contributions to ISCOTT, as required by the Subsidies and
Countervailing Measures Agreement.
Petitioners claim that the Department has consistently found that past subsidies are not
extinguished by an arm's length sale of a company that had received the subsidies.
Petitioners cite to 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) ("Leaded Bar from the U.K. Review"), where the Department
found that a portion of the subsidies traveled with BSC's Special Steel Business assets when,
in 1986, the government-owned BSC exchanged its Special Steels Business for shares in UES.
Petitioners note that In Final Affirmative Countervailing Duty Determination: Certain
Pasta from Italy, 61 FR 30288, (June 14, 1996) ("Pasta from Italy"), the Department made a
similar finding. Petitioners contend that in these cases, the Department views subsidy
payments to a company as a benefit to the entire company and all of its productive assets,
and, for this reason, the sale of the company or a part of it does not extinguish the prior
subsidies. Section 771(5)(F) of the Act makes it very clear that the Department has the
discretion to find prior subsidies countervailable despite an arm's length sale of company or
assets.
Department's Position: We disagree with respondents, and have allocated a portion of the
nonrecurring subsidies received by ISCOTT prior to the sale of the steel plant to CIL. In
Leaded Bar from the U.K., the Department found that subsidies received by BSC after the
spin-off did not pass through to UES. We note that in this case the sale of ISCOTT's assets to
CIL occurred after the lease period, providing a mechanism for pass-through of subsidies
received by ISCOTT to CIL. Consistent with the Department's past practice in Pasta from
Italy and several pre-URAA cases, we determine that a portion of the subsidies received by
ISCOTT, including subsidies received during the lease period, traveled with the assets sold
to CIL.
Comment 6: Repayment of subsidies upon sale of assets: Petitioners claim that the sale of
ISCOTT's assets at a fair value did not offset the distortion caused by the GOTT's original
bestowal of subsidies. Moreover, according to petitioners, the countervailing duty
statute establishes a presumption that a change in ownership of the productive assets of a
foreign enterprise does not render past countervailable subsidies non-countervailable.
Petitioners contend that once subsidies are allocated to a productive unit, they should
travel with that unit upon sale or privatization. Therefore, petitioners argue that the
Department should not recognize a partial repayment of the subsidy benefit stream at the
time ISCOTT assets were sold.
Department's position: We disagree with petitioners and have continued to allocate a
portion of the sales price of ISCOTT's assets to the previously bestowed subsidies. This is
consistent with the URAA and the Department's past practice (see, e.g., Leaded Bar from the
U.K. Review). Section 771(5)(F) of the Act reads:
Change in Ownership.--A change in ownership of all or part of a foreign enterprise or the
productive assets of a foreign enterprise does not by itself require a determination by the
administering authority that a past countervailable subsidy received by the enterprise no
longer continues to be countervailable, even if the change in ownership is accomplished
through an arm's length transaction.
The language of section 771(5)(F) of the Act purposely leaves discretion to the Department
with regard to the impact of a change in ownership on the countervailability of past
subsidies. Rather than mandating that a subsidy automatically transfer with a productive
unit that is sold, as petitioners argue, the language in the statute clearly gives the
Department flexibility in this area. Specifically, the Department is left with the discretion to
determine, on a case-by-case basis, the impact of a change in ownership on the
countervailability of past subsidies. Moreover, the SAA states that "Commerce retain[s] the
discretion to determine whether, and to what extent, the privatization of a
government-owned firm eliminates any previously conferred countervailable subsidies* *
*" SAA at 928.
In this case, we have determined that when ISCOTT's assets were sold, a portion of the sales
price reflected past subsidies. To account for that, we treated a portion of the sales price as
repaying those past subsidies to the GOTT.
Comment 7: Calculation of amount of subsidies remaining with the seller of a productive
unit: Respondents argue that the Department's methodology for calculating the amount of
subsidies that pass through in a change of ownership transaction is inconsistent with the
rest of the Department's practice with regard to nonrecurring subsidies because the
Department does not provide for any amortization when calculating the percentage of the
purchase price that is attributable to past subsidies. Respondents claim that if the
Department continues to conclude that subsidies may survive privatization, it must revise
its methodology for calculating the percentage of the purchase price that is attributed to
previously bestowed subsidies to take into account the fact that subsidies received prior to
privatization must be amortized from the time of receipt until the time of privatization.
Respondents propose that the Department determine the amount of the purchase price
attributable to previously bestowed subsidies as the ratio of the amount of subsidies
remaining in the company to the company's net worth at the time of privatization.
Petitioners claim the ratio calculated under the Department's current methodology,
commonly referred to as "gamma," is intended to measure the share of the purchase price
attributable to past subsidies, not the value of past subsidies at the time of privatization.
Petitioners argue that the methodology proposed by respondents will yield anomalous
results. Petitioners claim that the sale of a thinly-capitalized, heavily-subsidized company
would result in 100 percent of the purchase price being allocated to previously bestowed
subsidies, while all of the assets of the company benefitted from the past subsidies.
According to petitioners, a similarly situated company with equity financing instead of debt
would have a small amount of the purchase price allocated to previously bestowed
subsidies using respondents' proposed methodology.
Department's position: In accordance with our past practice and policy, we have continued
to calculate the portion of the purchase price attributable to past subsidies using historical
subsidy and net worth data (see, e.g., General Issues Appendix at 37263). Because this
methodology relies on several years' data, as opposed to data from just a single year, it
offers a more reliable representation of the contribution that subsidies have made to the net
worth of the productive unit being sold. We take into account the amortization of
previously bestowed subsidies in our pass-through calculation as we apply gamma to the
amount of the remaining, unamortized countervailable subsidy benefits to calculate the
amount that remains with the seller.
Comment 8: Benefits associated with the 1994 sale of ISCOTT's assets to CIL: Respondents
claim that the write-off of
*55012
ISCOTT's debts after the sale of the plant to CIL is not a
countervailable subsidy to CIL. Typically, companies acquiring the assets of other
companies do not also acquire the debt of these companies. In contrast, when companies
acquire the stock of other companies, they would normally be expected to assume the debt
of the acquired company. Respondents argue that the Department incorrectly relied on
GOES as precedent, because the circumstances in that case were very different from the
circumstances in the case of ISCOTT. Respondents note that in GOES, the Government of
Italy liquidated Finsider and its main operating companies in 1988 and assembled the
group's most productive assets into a new operating company, ILVA S.p.A. Respondents
argue that the movement of assets and liabilities between two government-owned
companies, as was the case in GOES, is very different from the arm's length nature of the sale
of ISCOTT's assets to CIL. Respondents claim that the purchase price paid in an arm's length
transaction, such as the sale of ISCOTT's assets to CIL, reflects the fact that the purchaser is
not also assuming the liabilities of the seller.
Petitioners claim that the Department has precedent for its decision to countervail loans to
ISCOTT, which were not transferred to CIL when CIL purchased ISCOTT's assets. Petitioners
note that in Final Affirmative Countervailing Duty Determination; Certain Steel
Products from Austria, 58 FR 37217, 37221 (July 9, 1993), the Department found that
losses incurred by a government-owned steelmaker, which were not transferred to new
companies upon their purchase of the steelmaker's assets, conferred a subsidy to the new
companies. Department's Position: We have continued to treat the amount of ISCOTT's
remaining liabilities in excess of the amount of remaining assets after the sale of ISCOTT's
assets to CIL as a subsidy to ISCOTT at the time of the sale. In Leaded Bar from the U.K., we
explained why we allocate subsidies to productive units, stating:
In the end, a "bubble" of subsidies would remain with a virtually empty corporate shell
which would not be affected by any countervailing duties because it did not produce or
export the countervailed merchandise to the United States.
Here, the "empty corporate shell" was ISCOTT, with no productive operations, no source of
future earnings, and debts exceeding its assets. Under such circumstances, it was inevitable
that ISCOTT would be unable to pay the balance owing on the notes payable, and, in fact, the
notes were forgiven by the lenders in 1995. When a government funds an entity through
loans which are later forgiven, the Department includes in its calculation of the
countervailing duty rate for that entity an amount for debt forgiveness. In this situation,
we determine that the debt forgiveness, which for all intents and purposes occurred at the
time of the sale of ISCOTT's assets, is a countervailable subsidy.
While the purchase price may have been lower if CIL had assumed the responsibility for the
notes payable in the purchase transaction, the result would be that less of any pre-existing
subsidies would be repaid.
Comment 9: Calculation of net present value of unamortized subsidies: Petitioners claim
that the Department appears to have improperly discounted the 1994 subsidy amount in
calculating the net present value of subsidies to which the gamma calculation is applied.
Respondents claim that because the Department begins allocating subsidies in the year of
receipt, the net present value amount for the 1994 subsidies should reflect one year of
amortization.
Department's Position: We agree with petitioners that our preliminary calculation of the net
present value of previously bestowed subsidies was not consistent with the Department's
past practice in this regard, and we have corrected this error in our final calculations.
Comment 10: Amortization of nonrecurring subsidies: Respondents claim that in amortizing
advances to ISCOTT, the Department began amortizing in the year after the year of receipt,
without allocating any amount to the year of receipt.
Department's Position: We agree with respondents and have corrected our calculations.
Comment 11: Adequacy of remuneration for electricity: Respondents claim that CIL does
not benefit from the provision of electricity for less than adequate remuneration because
Section 32 of the PUC's regulations requires the Commission to set rates that will cover
costs and earn a reasonable profit. In 1992, when setting the electricity rates in effect
during the POI, the PUC set rates for each customer class based on cost of service studies for
1987 and 1991. These rates were calculated to cover costs and expenses plus yield a
reasonable return. In addition, they were published rates that applied to all customers
within each of the rate classes.
Further, respondents argue that the electricity rates set by the PUC in 1992 provided
adequate remuneration because the PUC made upward adjustments to the rates that had
been proposed by TTEC. For example, the PUC adopted a flat rate structure rather than the
declining block structure. As high volume users, CIL and other large industrial users paid
more under the flat rate structure than they would have under the declining block
structure. The declining block structure would have allowed for a rate reduction as usage
increased over the billing period.
Petitioners claim that TTEC did not receive adequate remuneration during the POI, nor did
it receive an adequate return in two of the four preceding years, despite the assertions by
PUC and TTEC officials that the utility is expected to cover costs and expenses and show a
return. Further, TTEC intends to file a cost of service study based on 1996 operating costs
and request a rate increase. Petitioners argue that this demonstrates that TTEC's current
revenues are not adequate to cover costs. Petitioners urge the Department to calculate
CIL's benefit from its electricity rates as a recurring grant valued as the difference between
CIL's payment at the current rate and the amount it would pay if it were in the next largest
rate class on which a profit was realized.
Department's Position: We agree with petitioners that CIL's rate did not provide adequate
remuneration. Although the PUC's regulations may require it to set rates that cover costs
plus a return, history demonstrates that the PUC has seldom achieved this. The rates in
place in the year preceding the POI and during the POI resulted in losses for TTEC. Although
a different rate structure such as declining block rates might have led to other results,
particularly for CIL, we have no basis to depart from the structure that was actually
adopted by the PUC.
We disagree, however, with the calculation methodology proposed by petitioners. Instead,
we have relied upon the most recent cost of service study by TTEC which establishes a rate
for CIL that will cover the cost of supplying electricity to CIL plus a reasonable return. This
provides a better measure of adequate remuneration for a very large customer like CIL than
applying the rate for smaller customers, as proposed by petitioners.
Comment 12: Adequacy of remuneration for lease: Petitioners claim that CIL's lease rate is
less than the standard lease rate. In Wire Rod I (at 482), the Department found this lease
rate to result in a subsidy of 2.246 percent. Further, the record in this investigation has
information on only
*55013
four other leases. This limited information does not allow for a
meaningful comparison with the lease rate paid by CIL. Even these four leases, however,
suggest that CIL's lease does not provide adequate remuneration. For these reasons, CIL's
lease rate should be found countervailable.
Respondents maintain that the rate CIL pays for its 105.7 hectares provides adequate
remuneration to PLIPDECO. At verification, the Department attempted to find a suitable
benchmark for CIL's lease and found only two companies with 30-year leases on sites of 10
hectares or more. Other companies with sites of 10 hectares or more had 99-year leases.
These 99-year leases are structured much differently and cannot be compared to a 30-year
lease. Of the two sites with 30-year leases, the first was the second largest site in the estate,
and the lease for the property was signed at about the same time as CIL's. The second was a
small site with a lease signed years after CIL's lease. Comparing the most comparable lease
to CIL's reveals that CIL was paying a higher rate.
Department's Position: PLIPDECO officials informed us at verification that the standard
lease rate is used as a starting point for negotiation and indicated that only very small sites
would pay this rate. The lease rates of the four leases examined during verification were all
less than the standard rate. Therefore, we concluded that the standard rate was not used as
the lease rate in all cases and was not an appropriate benchmark for CIL's lease rate.
Moreover, neither the GOTT nor PLIPDECO limited the verification team's access to leases
during verification. The team selected the leases to be reviewed on the basis of their
similarity to CIL's lease. First, the team selected leases with sites of 10 hectares or more. Of
these, only two had leases with the same 30-year term as CIL's. The others were 99-year
leases. The team then selected two leases with sites of less than 10 hectares to review the
lease terms on these smaller sites. Because CIL's site was 105.7 hectares, the team did not
make further selections from the leases with sites under 10 hectares.
Although we did find that the 1983 lease conferred a subsidy in Wire Rod I, we note that
CIL's lease rate increased significantly in 1988. In addition, the Department used the
standard lease rate as its benchmark in Wire Rod I. However, as discussed above, our
review in this proceeding showed that several leases had rates below the standard rate.
Therefore, we have concluded that the standard rate is not an appropriate benchmark.
Comment 13: Export allowance program: Respondents argue that in computing the subsidy
attributable to the export allowance program ("EAP") for the POI, the Department should
use CIL's income tax return for fiscal year 1996 rather than CIL's 1995 income tax return. In
respondents' view, this would be consistent with the Department's established cash flow
methodology as described in the Countervailing Duties: Notice of Proposed Rulemaking
and Request for Public Comments, 54 FR 23366, 23384 (May 31, 1989) ("1989 Proposed
Regulations") at section 355.48(a). Under that policy, the Department will ordinarily deem a
countervailable benefit to be received at the time that there is a cash flow effect on the firm
receiving the benefit. Respondents assert that CIL experienced the cash flow effect of the
EAP throughout 1996, when CIL paid its quarterly installments of the Business Levy.
Respondents also argue that use of the 1995 tax return distorts the countervailable subsidy
by attributing to CIL the export allowance benefit earned in 1995, when both exports and
total sales were greater than in 1996. Respondents contend that the Department's
regulations give it the discretion to use the 1996 tax return and that the Department should
use that discretion to avoid this distortion.
Petitioners agree with the Department's approach used in the preliminary determination
and urge the Department to continue using the benefits reported in the 1995 tax return
which was filed during the POI in calculating the amount of benefit received by CIL.
Petitioners state that this approach is consistent with the Department's prior
determinations and policy as well as section 351.508(2)(b) of the Proposed
Countervailing Duty Regulations, 62 FR 8818, 8880 (February 26, 1997) ("1997
Proposed Regulations"). Petitioners also cite section 355.48(b)(4) of the 1989 Proposed
Regulations, which states that in the case of a direct tax benefit a firm can normally
calculate the amount of the benefit when the firm files its tax return. Petitioners argue that
CIL realized the benefit on October 29, 1996, the date when it filed its 1995 tax return, and
that CIL did not realize benefits on its 1996 exports until it filed its 1996 tax return on
August 25, 1997, after the POI. Petitioners dismiss respondents' arguments about cash flow
methodology and estimated tax payment as meritless. Petitioners assert that CIL only
claimed benefits from the export allowance when it filed its corporate tax return. Moreover,
petitioners state that the filing of the formal income tax return is the earliest date upon
which the Department can determine whether the EAP had been used.
Department's Position: We agree with petitioners that CIL received the benefit of the tax
savings attributable to the EAP when it filed its corporate tax return. Consequently, we have
continued to value this benefit based on the tax return filed during the POI.
In Trinidad and Tobago, a company pays either the corporation tax or Business Levy,
whichever is higher. The corporation tax is calculated on the company's profits, and the
Business Levy is calculated as a straight percentage of gross sales or receipts.
The Department's long-established practice in treating income tax benefits has been to
recognize the benefit of income tax programs at the time the income tax return is actually
filed, usually in the year following the tax year for which the benefit is claimed (see, e.g.,
Final Affirmative Countervailing Duty Determination: Iron Ore Pellets from Brazil, 51 FR
21961, 21967 (June 17, 1986)). It is at that time that the recipient normally realizes a
difference in cash flow between the income tax paid with the benefit of the program and the
tax that would have been paid absent the program. Even when companies make estimated
quarterly income tax payments during the tax year, the Department has delayed
recognition of the benefit until the tax return is filed and the amount of the benefit is
definitively established.
In this case, CIL acknowledges that the 1996 EAP was not claimed until it filed its 1996 tax
return in 1997. Nevertheless, CIL claims that because of the export allowance, it does not
pay the corporate income tax. Instead, because it must pay the higher of the Business Levy
or the corporate income tax, CIL typically pays the Business Levy. Moreover, because CIL
makes quarterly deposits of its estimated Business Levy, the company claims the cash flow
effect of the EAP occurs when these quarterly deposits are made.
Although we agree that CIL has typically paid the Business Levy rather than the corporate
income tax as a result of the EAP, we do not agree that this should lead us to countervail the
benefits arising from the EAP as if they were connected with the Business Levy.
First, CIL will only be certain that it will pay the Business Levy when the income tax is
computed and the export allowance is claimed. Second, the amount of the benefit is not
calculable prior to the filing of the corporate tax
*55014
return. An income tax benefit can
potentially have numerous cash flow effects. The Department's practice is to single out the
cash flow effect most directly associated with the tax benefit; in this case, the actual savings
which arise when the taxes are due.
Verification
In accordance with section 782(i) of the Act, we verified the information used in making our
final determination. We followed standard verification procedures, including meeting with
government and company officials, and examination of relevant accounting records and
original source documents. Our verification results are outlined in detail in the public
versions of the verification reports, which in the Public File for this investigation.
Suspension of Liquidation
In accordance with section 703(d)(1)(A)(i) of the Act, we have calculated an ad valorem
subsidy rate of 17.47 percent for CIL, the one company under investigation. We are also
applying CIL's rate to any companies not investigated or any new companies exporting the
subject merchandise.
We have concluded a suspension agreement with the GOTT which eliminates the injurious
effects of imports from Trinidad and Tobago (see, Notice of Suspension of Investigation:
Steel Wire Rod from Trinidad and Tobago being published concurrently with this notice).
As indicated in the notice announcing the suspension agreement, pursuant to section
704(h)(3) of the Act, we are directing the U.S. Customs Service to continue suspension of
liquidation. This suspension will terminate 20 days after publication of the suspension
agreement or, if a review is requested pursuant to section 704(h)(1) of the Act, at the
completion of that review. Pursuant to section 704(f)(2)(B) of the Act, however, we are not
applying the final determination rate to entries of subject merchandise from Trinidad and
Tobago; rather, we have adjusted the rate to zero to reflect the effect of the agreement.
ITC Notification
In accordance with section 705(d) of the Act, we will notify the ITC of our determination. In
addition, we are making available to the ITC all non- privileged and nonproprietary
information relating to this investigation. We will allow the ITC access to all privileged and
business proprietary information in our files, provided the ITC confirms that it will not
disclose such information, either publicly or under an administrative protective order,
without the written consent of the Acting Deputy Assistant Secretary for AD/CVD
Enforcement, Import Administration.
If the ITC's injury determination is negative, the suspension agreement will have no force or
effect, this investigation will be terminated, and the Department will instruct the U.S.
Customs Service to refund or cancel all securities posted (see, section 704(f)(3)(A) of the
Act). If the ITC's injury determination is affirmative, the Department will not issue a
countervailing duty order as long as the suspension agreement remains in force, and the
Department will instruct the U.S. Customs Service to refund or cancel all securities posted
(see, section 704(f)(3)(B) of the Act). This notice is issued pursuant to section 704(g) of the
Act.
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 return or destruction of proprietary
information disclosed under APO in accordance with 19 CFR 355.34(d). Failure to comply is
a violation of the APO.
This determination is published pursuant to section 705(d) of the Act.
Dated: October 14, 1997.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 97-27984 Filed 10-21-97; 8:45 am]
BILLING CODE 3510-DS-P