Notice of Final Determination of Sales at Less Than Fair Value: Live Swine From Canada, 12181-12185 [E5-1029]

Download as PDF Federal Register / Vol. 70, No. 47 / Friday, March 11, 2005 / Notices Secretary for Economic Development David A. Sampson. E-mail submissions must be addressed to saci@eda.doc.gov and should include all nomination materials (including attachments) in a single transmission. The Department strongly encourages applicants to submit nominations by facsimile or email. Nominations sent by postal mail may be substantially delayed in delivery, since all postal mail sent to the Department is subject to extensive security screening. FOR FURTHER INFORMATION CONTACT: The Office of Chief Counsel, Economic Development Administration, Department of Commerce, Room 7005, 1401 Constitution Avenue, NW., Washington DC 20230, telephone (202) 482–4687. SUPPLEMENTARY INFORMATION: On February 3, 2005, the Secretary of Commerce (the ‘‘Secretary’’) and the Secretary of Housing and Urban Development jointly announced the President’s Strengthening America’s Communities Initiative (the ‘‘Initiative’’). The Initiative proposes to transfer and consolidate 18 Federal economic and community development programs from the Departments of Agriculture, Commerce, Health and Human Services, Housing and Urban Development and Treasury within the Department, ultimately comprising a $3.71 billion unified grant program. On February 9, 2005, the President’s Domestic Policy Council requested the Secretary form the Committee. The objectives and duties of the Committee will be to provide advice and recommendations to the Secretary, and to develop a comprehensive written report of policy parameters to assist in implementing the Initiative, including advising on its legislation, regulations and other guidance. The Committee’s report will encompass all aspects of the envisioned Initiative, including policy findings and declarations, organizational structure, eligibility, program delivery, monitoring and performance measures. The Committee is expected to deliver its report to the Secretary by May 31, 2005. Thereafter, the Committee may be asked to advise the Secretary on additional issues relating to the Initiative. The Committee is intended to have a balanced membership from diverse backgrounds and geographical regions, including the private sector, state, local and tribal government officials, community-based organizations, academia and the research community. Nominees should possess an extensive knowledge of, and background in, the fields of rural or urban economic or VerDate jul<14>2003 16:40 Mar 10, 2005 Jkt 205001 community development. Nominees should also possess recognized development policy expertise and excellent leadership, communication and organizational skills. The evaluation criteria for selecting members and the specific instructions for submitting nominations contained in the March 1, 2005 notice shall continue to apply. Additional information on the Initiative is available on the Department’s Web site at https:// www.commerce.gov/SACI/index.htm. Privacy Act Section 301 of title 5 United States Code and 15 CFR part 4, subpart B authorize and govern collection of this information. The primary use of this information is to allow officials of the Department and its operating units to review applications and to conduct vetting of applicants to make decisions concerning the nomination or renomination of candidates for membership on the Committee. Records may be disclosed under the following routine use circumstances: (1) To any Federal, state, or local agency maintaining civil, criminal, or other relevant enforcement information, if necessary to obtain information relevant to a Department decision concerning the assignment, hiring, or retention of an individual; the issuance of a security clearance; the letting of a contract; or the issuance of a license, grant, or benefit. (2) To any Federal, state, local, or foreign agency charged with the responsibility of investigating or prosecuting any violation or potential violation of law or contract, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute or contract, rule, regulation, or order, to protect the interests of the Department. (3) To any Federal, state, local, or international agency, in response to its request, in connection with the assignment, hiring, or retention of an individual, the issuance of a security clearance, the reporting of an investigation of an individual, the letting of a contract, or any other benefit of the requesting agency, to the extent that the information is relevant and necessary to the requesting agency’s decisions on the matter. (4) To a Member of Congress submitting a request involving an individual when the individual has requested assistance from the Member with respect to the subject matter of the record. (5) To the Department of Justice in connection with determining whether disclosure is of the record is required under the Freedom of Information Act. Collection of this information, including your Social Security number PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 12181 is voluntary but failure to furnish it will result in your application not being considered. Collection of your Social Security number is authorized under Executive Order No. 9397. The Department will use this number to distinguish you from other members of the public who may have the same or similar name. Dated: March 8, 2005. Theodore W. Kassinger, Deputy Secretary of Commerce. [FR Doc. 05–4905 Filed 3–10–05; 8:45 am] BILLING CODE 3510–24–P DEPARTMENT OF COMMERCE International Trade Administration [A–122–850] Notice of Final Determination of Sales at Less Than Fair Value: Live Swine From Canada Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On October 20, 2004, the Department of Commerce published a preliminary determination in the antidumping duty investigation of live swine from Canada. We gave interested parties an opportunity to comment on the preliminary determination. Based upon the results of verification and our analysis of the comments received, we have made certain changes. We continue to find that live swine from Canada were sold in the United States below normal value during the period of investigation. The final weightedaverage dumping margins are listed below in the section entitled ‘‘Continuation of Suspension of Liquidation.’’ AGENCY: Effective Date: March 11, 2005. Cole Kyle or Andrew Smith, AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482–1503 or (202) 482– 1276, respectively. SUPPLEMENTARY INFORMATION: DATES: FOR FURTHER INFORMATION CONTACT: Background On October 20, 2004, the Department of Commerce (‘‘the Department’’) published in the Federal Register the preliminary determination in its investigation of live swine from Canada. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: E:\FR\FM\11MRN1.SGM 11MRN1 12182 Federal Register / Vol. 70, No. 47 / Friday, March 11, 2005 / Notices Live Swine From Canada, 69 FR 61639 (October 20, 2004) (‘‘Preliminary Determination’’). Since the Preliminary Determination, the following events have occurred: On October 25, 2004, Excel requested that the Department reconsider its preliminary decision to rescind its selection of Excel as a mandatory respondent in this investigation. On November 3, 2004, the Department decided to verify Excel’s questionnaire responses. On November 29, 2004, Premium Pork Canada, Inc. (‘‘Premium Pork’’) withdrew from this investigation. In November and December 2004, and January 2005, we conducted verifications of the sales and cost of production (‘‘COP’’) questionnaire responses submitted by Ontario Pork Producers’ Marketing Board (‘‘Ontario Pork’’), Hytek, Inc. (‘‘Hytek’’), and Excel Swine Services, Inc. (‘‘Excel’’) at each company’s headquarters and at certain farm locations. We issued verification reports in January 2005. We received case and rebuttal briefs from the Illinois Pork Producers Association, the Indiana Pork Advocacy Coalition, the Iowa Pork Producers Association, the Minnesota Pork Producers Association, the Missouri Pork Association, the Nebraska Pork Producers Association, Inc., the North Carolina Pork Council, Inc., the Ohio Pork Producers Council, and 119 individual producers of live swine 1 1 Alan Christensen, Alicia Prill-Adams, Aulis Farms, Baarsch Pork Farm, Inc., Bailey Terra Nova Farms, Bartling Brothers Inc., Belstra Milling Co. Inc., Berend Bros. Hog Farm LLC, Bill Tempel, BK Pork Inc., Blue Wing Farm, Bornhorst Bros, Brandt Bros., Bredehoeft Farms, Inc., Bruce Samson, Bryant Premium Pork LLC, Buhl’s Ridge View Farm, Charles Rossow, Cheney Farms, Chinn Hog Farm, Circle K Family Farms LLC, Cleland Farm, Clougherty Packing Company, Coharie Hog Farm, County Line Swine Inc., Craig Mensick, Daniel J. Pung, David Hansen, De Young Hog Farm LLC, Dean Schrag, Dean Vantiger, Dennis Geinger, Double ‘‘M’’ Inc., Dykhuis Farms, Inc., E & L Harrison Enterprises, Inc., Erle Lockhart, Ernest Smith, F & D Farms, Fisher Hog Farm, Fitzke Farm, Fultz Farms, Gary and Warren Oberdiek Partnership, Geneseo Pork, Inc., GLM Farms, Greenway Farms, H & H Feed and Grain, H & K Enterprises, LTD, Ham Hill Farms, Inc., Harrison Creek Farm, Harty Hog Farms, Heartland Pork LLC, Heritage Swine, High Lean Pork, Inc., Hilman Schroeder, Holden Farms Inc., Huron Pork, LLC, Hurst AgriQuest, J D Howerton and Sons, J. L. Ledger, Inc., Jack Rodibaugh & Sons, Inc., JC Howard Farms, Jesina Farms, Inc., Jim Kemper, Jorgensen Pork, Keith Berry Farms, Kellogg Farms, Kendale Farm, Kessler Farms, L.L Murphrey Company, Lange Farms LLC, Larson Bros Dairy Inc., Levelvue Pork Shop, Long Ranch Inc., Lou Stoller & Sons, Inc., Luckey Farm, Mac-O-Cheek, Inc., Martin Gingerich, Marvin Larrick, Max Schmidt, Maxwell Foods, Inc., Mckenzie-Reed Farms, Meier Family Farms Inc., MFA Inc., Michael Farm, Mike Bayes, Mike Wehler, Murphy Brown LLC, Ned Black and Sons, Ness Farms, Next Generation Pork, Inc., Noecker Farms, Oaklane Colony, Orangeburg VerDate jul<14>2003 16:40 Mar 10, 2005 Jkt 205001 (collectively, hereinafter, ‘‘the petitioners’’), Excel, Hytek, Ontario Pork, and Baxter Transport, Ltd., J. Quintaine & Son, Ltd., and Zantingh Swine Inc. Scope of Investigation The merchandise covered by this investigation is all live swine (‘‘swine’’ or ‘‘subject merchandise’’) from Canada except breeding stock swine. Live swine are defined as four-legged, monogastric (single-chambered stomach), litterbearing (litters typically range from 8 to 12 animals), of the species sus scrofa domesticus. This merchandise is currently classifiable under Harmonized Tariff Schedule of the United States (‘‘HTSUS’’) subheadings 0103.91.00 and 0103.92.00. Specifically excluded from this scope are breeding stock, including U.S. Department of Agriculture (‘‘USDA’’) certified purebred breeding stock and all other breeding stock. The designation of the product as ‘‘breeding stock’’ indicates the acceptability of the product for use as breeding live swine. This designation is presumed to indicate that these products are being used for breeding stock only. However, should the petitioners or other interested parties provide a reasonable basis to believe or suspect that there exists a pattern of importation of such products for other than this application, end-use certification for the importation of such products may be required. Although the HTSUS headings are provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive. Scope Comments In the Notice of Initiation of Antidumping Duty Investigation: Live Swine from Canada, 69 FR 19815 (April 14, 2004) (‘‘Initiation Notice’’), we invited comments on the scope of this proceeding. On May 4, 2004, we received a request from the GOC to amend the scope of this investigation and the companion countervailing duty (‘‘CVD’’) investigation. Specifically, the GOC requested that the scope be amended to exclude hybrid breeding Foods, Oregon Pork, Pitstick Pork Farms Inc., Prairie Lake Farms, Inc., Premium Standard Farms, Inc., Prestage Farms, Inc., R Hogs LLC, Rehmeier Farms, Rodger Schamberg, Scott W. Tapper, Sheets Farm, Smith-Healy Farms, Inc., Square Butte Farm, Steven A. Gay, Sunnycrest Inc., Trails End Far, Inc., TruLine Genetics, Two Mile Pork, Valley View Farm, Van Dell Farms, Inc., Vollmer Farms, Walters Farms LLP, Watertown Weaners, Inc., Wen Mar Farms, Inc., William Walter Farm, Willow Ridge Farm LLC, Wolf Farms, Wondraful Pork Systems, Inc., Wooden Purebred Swine Farms, Woodlawn Farms, and Zimmerman Hog Farms. PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 stock. According to the GOC, domestic producers use hybrid breeding stock instead of purebred stock to strengthen their strains of swine. The GOC stated that no evidence was provided of injury, or threat of injury, to the domestic live swine industry from the importation of hybrid breeding stock. Furthermore, the GOC noted that the petition excluded USDA certified purebred breeding swine from the scope of the abovementioned investigations. The GOC argued that the documentation which accompanies imported hybrid breeding swine makes it easy to distinguish hybrid breeding swine from other live swine. On August 4, 2004, the petitioners submitted a response to the GOC’s scope exclusion request and proposed modified scope language. The petitioners stated they did not oppose the GOC’s request to exclude hybrid breeding stock, but were concerned about the potential for circumvention of any CVD or antidumping duty (‘‘AD’’) order on live swine from Canada through non-breeding swine entering the domestic market as breeding stock. Thus, the petitioners proposed modified scope language that would require enduse certification if the petitioners or other interested parties provide a reasonable basis to believe or suspect that there exists a pattern of importation of such products for other than this application. Moreover, on July 30, 2004, the petitioners submitted a request to the International Trade Commission (‘‘ITC’’) to modify the HTSUS by adding a statistical breakout that would separately report imports of breeding animals other than purebred breeding animals, allowing the domestic industry to monitor the import trends of hybrid breeding stock. On August 9, 2004, both the GOC and the respondent companies submitted comments to respond to the petitioners’ proposed revised scope. Both the GOC and the respondent companies stated that they generally agreed with the petitioners’ modified scope language, with the two following exceptions: (1) They contended that the petitioners’ language setting forth the mechanics of any end use certification procedure was premature and unnecessary, and (2) they argued that the petitioners’ language stating that ‘‘all products meeting the physical description of subject merchandise that are not specifically excluded are included in this scope’’ was unnecessary because the physical description of the merchandise in scope remains determinative. On August 12, 2004, the petitioners submitted a response to the August 9, E:\FR\FM\11MRN1.SGM 11MRN1 Federal Register / Vol. 70, No. 47 / Friday, March 11, 2005 / Notices 2004 comments from the GOC and the respondents. The petitioners reiterated their support for their proposed modification to the scope language. They argued that (1) their proposed language had been used before by the Department in other proceedings; (2) since U.S. importers bear the burden of paying the duties, the importers should be required to certify to the end use of the product; and (3) with the petitioners’ concerns about circumvention, the ‘‘physical description’’ language provided an important clarification that all live swine except for the excluded products are included in the scope. As further discussed in the August 16, 2004 memorandum entitled ‘‘Scope Exclusion Request: Hybrid Breeding Stock’’ (on file in the Department’s Central Records Unit in Room B–099 of the main Department building (‘‘CRU’’)), we preliminarily revised the scope in both the AD and companion CVD proceedings based on the above scope comments. See Preliminary Determination, 69 FR 61639, 61640– 61641, and Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Live Swine from Canada, 69 FR 51800, 51801–51802 (August 23, 2004). No further scope comments were received from any party subsequent to these preliminary determination. Thus, we have adopted the revised scope from the Preliminary Determination for this final determination. The revised scope language is included in the ‘‘Scope of Investigation’’ section, above. Period of Investigation The period of investigation (‘‘POI’’) is January 1, 2003, through December 31, 2003. This period corresponds to the four most recent fiscal quarters prior to the filing of the petition on March 5, 2004. Facts Otherwise Available Section 776(a)(2) of the Act provides that the Department shall apply ‘‘facts otherwise available’’ if, inter alia, a respondent (A) withholds information that has been requested; (B) fails to provide information within the deadlines established, or in the form or manner requested by the Department, subject to subsections (c)(1) and (e) of Section 782; (C) significantly impedes a proceeding; or (D) provides information that cannot be verified. Section 782(e) of the Act further provides that the Department shall not decline to consider information that is submitted by an interested party and that is necessary to the determination VerDate jul<14>2003 16:40 Mar 10, 2005 Jkt 205001 but does not meet all the applicable requirements established by the Department if (1) the information is submitted by the deadline established for its submission; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability in providing the information and meeting the requirements established by the Department with respect to the information; and (5) the information can be used without undue difficulties. Premium Pork responded to the Department’s questionnaires and otherwise participated in this investigation until November 29, 2004, two weeks before Premium Pork’s scheduled verification. On November 29, 2004, Premium Pork withdrew from this investigation because of its impending dissolution. See Premium Pork’s November 29, 2004 withdrawal letter. Premium Pork’s receivers stated that its companies would ‘‘not continue their current integrated operations’’ after its asset sales were completed. Id. The Department has not received any further communication from Premium Pork. In applying facts otherwise available, section 776(b) of the Act provides that the Department may use an inference adverse to the interests of a party that has failed to cooperate by not acting to the best of its ability to comply with the Department’s requests for information. See, e.g, Notice of Final Determination of Sales at Less Than Fair Value and Final Negative Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from Brazil., 67 FR 55792, 55794– 96 (August 30, 2002). Adverse inferences are appropriate ‘‘to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.’’ See Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103–316, at 870 (1994) (‘‘SAA’’). In this case, Premium Pork ultimately failed to cooperate to the best of its ability because it failed to participate in verification. Therefore, the Department finds that in selecting from among the facts otherwise available, an adverse inference is warranted. See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Certain Frozen and Warmwater Shrimp from Brazil, 69 FR 76910 (December 23, 2004) and accompanying Issues and Decision Memorandum at Comment 22 (the Department applied total adverse facts available where the respondent withdrew from the investigation prior to PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 12183 verification) and Notice of Final Determination of Sales at Less than Fair Value: Circular Seamless Stainless Steel Hollow Products from Japan, 65 FR 42985, 42986 (July 12, 2000) (the Department applied total adverse facts available where the respondent failed to respond to the antidumping questionnaires). As adverse facts available, we have assigned Premium Pork a margin of 18.87 percent, the highest price-to-price margin alleged in the petition, in accordance with section 776(b)(1). Section 776(b) of the Act notes that an adverse facts available rate may include reliance on information derived from: (1) The petition; (2) a final determination in the investigation; (3) any previous review; or (4) any other information placed on the record. Thus, the statute does not limit the specific sources from which the Department may obtain information for use as facts available. The SAA recognizes the importance of adverse facts available as an investigative tool in antidumping proceedings. The Department’s potential use of adverse facts available provides the only incentive to foreign exporters and producers to respond to the Department’s questionnaires. See SAA at 868. Section 776(c) of the Act mandates that the Department, to the extent practicable, shall corroborate secondary information (such as petition data) using independent sources reasonably at its disposal. In accordance with the law, the Department, to the extent practicable, will examine the reliability and relevance of the information used. To corroborate the margin assigned to Premium Pork, we compared the normal values and U.S. prices submitted by the petitioners, as amended by the Department in the April 7, 2004, Initiation Checklist, to data submitted by the respondents for whom we are calculating a margin. See March 4, 2004, memorandum, ‘‘Final Determination of Live Swine from Canada: Corroboration Memorandum.’’ This comparison corroborates and supports the reliability of the selected margin. With respect to the relevance aspect of corroboration, however, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as adverse facts available, the Department will disregard the margin and determine an appropriate margin (see, e.g., Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22, E:\FR\FM\11MRN1.SGM 11MRN1 12184 Federal Register / Vol. 70, No. 47 / Friday, March 11, 2005 / Notices 1996) (where the Department disregarded the highest margin as adverse facts available because the margin was based on another company’s uncharacteristic business expense resulting in an unusually high margin)). Therefore, we also examined whether any information on the record would discredit the selected rate as reasonable facts available for Premium Pork. No such information exists. In particular, there is no information that might lead to a conclusion that a different rate would be more appropriate. Accordingly, we have assigned Premium Pork the rate of 18.87 percent as total adverse facts available. This is consistent with section 776(b) of the Act which states that adverse inferences may include reliance on information derived from the petition. Service, Inc. Final Determination Calculation Memorandum,’’ dated March 4, 2005. Hytek We used the databases submitted by Hytek after verification, which include the minor corrections presented at verification. For Hytek’s U.S. sales, we accounted for an additional billing adjustment and direct selling expense which were presented as minor corrections at verification. In our product comparisons, we prevented matches between U.S. sales of isoweans and home market sales of spent boars. See Memorandum to File, ‘‘Hytek, Ltd. Final Determination Calculation Memorandum,’’ dated March 4, 2005. Ontario Pork We used the sales databases submitted by Ontario Pork after verification, which include the minor corrections presented at verification. We revised Ontario Pork’s advertising expenses. See Decision Memorandum at Comment 6. We did not include the U.S. direct selling expense that we included in the Preliminary Determination. See Decision Memorandum at Comment 7. We revised Ontario Pork’s reported crossing fees based on information contained in Ontario Pork’s verification exhibits. See Memorandum to File, ‘‘Ontario Pork Producers’ Marketing Board Final Determination Calculation Memorandum,’’ dated March 4, 2005. Cost of Production and Constructed Value We calculated the cost of production (‘‘COP’’) and constructed value (‘‘CV’’) for Ontario Pork, Hytek, and Excel based on the same methodologies used in the Preliminary Determination, and in our November 3, 2004, calculations 3 for Excel, except for those changes noted in the Memorandum to Neal M. Halper, ‘‘Cost of Production and Constructed Value Adjustments for the Final Determination—Ontario Pork Producers’ Marketing Board Cost Respondents,’’ dated March 4, 2005; Memorandum to Neal M. Halper, ‘‘Cost of Production and Constructed Value Calculation Adjustments for the Final Determination—Excel Swine Services, Inc./Riverbend Colony of Hutterian Bretheren Trust, Rainbow Colony of Hutterian Bretheren Trust, and Big Boulder Creek Farms Ltd.,’’ dated March 4, 2005; and Memorandum to Neal M. Halper, ‘‘Cost of Production and Constructed Value Adjustments for the Final Determination—Hytek Ltd.,’’ dated March 4, 2005. Excel We used the U.S. database submitted by Excel after verification in our margin calculations, which includes the minor corrections presented at verification. In addition, we disregarded sales of substandard merchandise. See Decision Memorandum at Comment 51. See Memorandum to File, ‘‘Excel Swine Home Market Sales Disregarded Pursuant to section 773(b)(1) of the Act, where less than 20 percent of a respondent’s sales of a given product during the POI were at prices less than the COP, we do not disregard any below-cost sales of that product because we determine that in such instances the below-cost sales were not made in 2 See Memorandum to File, ‘‘Export Price Calculation Memorandum for Excel Swine Services, Inc./Riverbend Colony Hutterian Brethren Trust, Rainbow Colony Hutterian Brethren Trust, and Big Boulder Creek Farms, Ltd.,’’ dated November 3, 2004, and Memorandum to File, ‘‘Cost of Production and Constructed Value Calculation Memorandum—Excel Swine Services, Inc./ Riverbend Colony Hutterian Brethren Trust, Rainbow Colony Hutterian Brethren Trust, and Big Boulder Creek Farms, Ltd.,’’ dated November 3, 2004. 3 See Memorandum to File, ‘‘Export Price Calculation Memorandum for Excel Swine Services, Inc./Riverbend Colony Hutterian Brethren Trust, Rainbow Colony Hutterian Brethren Trust, and Big Boulder Creek Farms, Ltd.,’’ dated November 3, 2004, and Memorandum to File, ‘‘Cost of Production and Constructed Value Calculation Memorandum—Excel Swine Services, Inc./ Riverbend Colony Hutterian Brethren Trust, Rainbow Colony Hutterian Brethren Trust, and Big Boulder Creek Farms, Ltd.,’’ dated November 3, 2004. Fair Value Comparisons We calculated constructed export price, export price, and normal value based on the same methodologies used in the Preliminary Determination and in our November 3, 2004, calculations 2 for Excel, with the following exceptions: VerDate jul<14>2003 16:40 Mar 10, 2005 Jkt 205001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 ‘‘substantial quantities.’’ Where 20 percent or more of a respondent’s sales of a given product are at prices less than the COP, we determine that the belowcost sales represent ‘‘substantial quantities’’ within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act. With respect to Ontario Pork and Hytek, for certain products, more than 20 percent of the comparison market sales were at prices less than the COP and, thus, the below-cost sales were made within an extended period of time in substantial quantities. In addition, these sales were made at prices that did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales, if any, as the basis for determining NV, in accordance with section 773(b)(1) of the Act. Verifications As provided in section 782(i)(1) of the Act, we verified the information submitted by the respondents during November and December, 2004, and January, 2005. We used standard verification procedures, including examination of relevant accounting and production records, as well as original source documents provided by the respondents. Analysis of Comments Received All issues raised in the petitioners’ and the respondents’ case and rebuttal briefs are addressed in the March 4, 2005, Issues and Decision Memorandum for the Final Determination in the Antidumping Duty Investigation of Live Swine from Canada (‘‘Decision Memorandum’’) which is hereby adopted by this notice. Attached to this notice as an appendix is a list of the issues that the petitioners and the respondents have raised and to which we have responded in the Decision Memorandum. Parties can find a complete discussion of all issues raised in these investigations and the corresponding recommendations in this public memorandum, which is on file in the Department’s CRU. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at https://ia.ita.doc.gov/frn/ summary/list.htm. The paper copy and electronic version of the Decision Memorandum are identical in content. E:\FR\FM\11MRN1.SGM 11MRN1 Federal Register / Vol. 70, No. 47 / Friday, March 11, 2005 / Notices Continuation of Suspension of Liquidation In accordance with section 735(c)(1)(B)(ii) of the Act, we are directing the U.S. Customs and Border Protection (‘‘CBP’’) to continue to suspend liquidation of all imports of subject merchandise from Canada, except merchandise produced and exported by Hytek, that are entered, or withdrawn from warehouse, for consumption on or after October 20, 2004, the date of publication of the Preliminary Determination in the Federal Register. The CBP shall continue to require a cash deposit or the posting of a bond equal to the weightedaverage amount by which the NV exceeds the EP, as indicated in the chart below. For Hytek, because its estimated weighted-average final dumping margin is de minimis, we are directing CBP to terminate suspension of liquidation of Hytek’s entries and refund all bonds and cash deposits posted on subject merchandise produced by Hytek. These suspension-of-liquidation instructions will remain in effect until further notice. The weighted-average dumping margins are as follows: Exporter/manufacturer Ontario Pork Producers’ Marketing Board. Hytek, Inc .................. Premium Pork Canada, Inc. Excel Swine Services, Inc. All Others .................. Weighted-average margin 12.68 percent. 0.53 percent (de minimis). 18.87 percent (AFA). 4.64 percent. 10.63 percent.4 4 We excluded the de minimis margin and the margin based on adverse facts available from the calculation of the all-others rate. See Section 735(c)(5)(A) of the Act. ITC Notification In accordance with section 735(d) of the Act, we have notified the International Trade Commission (‘‘ITC’’) of our determination. As our final determination is affirmative, the ITC will, within 45 days, determine whether these imports are materially injuring, or threatening material injury to, the U.S. industry. If the ITC determines that material injury, or threat of material injury, does not exist, the proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order. This notice also serves as a reminder to parties subject to administrative protective order (‘‘APO’’) of their responsibility concerning the VerDate jul<14>2003 16:40 Mar 10, 2005 Jkt 205001 disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation. This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act. Dated: March 4, 2005. Joseph A. Spetrini, Acting Assistant Secretary for Import Administration. Appendix General Issues Comment 1: Perishable Agricultural Products Comment 2: Net Income Stabilization Account Comment 3: Allocation of Total Production Costs Company Specific Issues Premium Pork Comment 4: Premium Pork Withdrawal Ontario Pork Comment 5: Monthly Price-Averaging Comment 6: Advertising Expenses Comment 7: Bank Charges Comment 8: Credit Expenses Comment 9: Freight Expenses Ontario Pork Farm A Comment 10: Cost of Feed Comment 11: Imputed Labor Costs Comment 12: Cost of Breeding Stock Comment 13: Denominator Used for the General and Administrative Expense Ratio Comment 14: Breeding Stock Salvage Value Comment 15: Sows Supplied by Affiliates Comment 16: Hogs Used for Personal Consumption Comment 17: Per-unit Finishing Costs Adjusted by the Feeders Sold Comment 18: Farm A’s Change in Inventory Values Comment 19: Livestock Purchases in the Indirect Cost Allocation Comment 20: Lease of Crop Land Comment 21: Optional Inventory Adjustment Comment 22: Additional Accrued Cost Items Comment 23: G&A Expenses Comment 24: Interest Rates Ontario Pork Farm B Comment 25: Affiliated Feed Company Comment 26: Tile Drainage Comment 27: Interest Income Earned on NISA and Risk Management Funding Comment 28: Prepaid Feed Costs Comment 29: Donated Hogs Comment 30: Misallocated Costs Comment 31: Reconciliation Error Comment 32: Imputed Labor Comment 33: Interest Expense for Loan Comment 34: Interest Income Ontario Pork Farm C Comment 35: Claimed Offsets for Subsidies PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 12185 Comment 36: Failure to Report all Feed Costs Comment 37: Capitalized Feed Costs Comment 38: Errors Revealed During Verification Should be Corrected Comment 39: Proper Treatment of ‘‘Credit to Barn Quality’’ Account Comment 40: G&A Expenses Comment 41: Collapsing the Operations of Affiliated Suppliers Ontario Pork Farm D Comment 42: Costs Related to Transporting Hogs to the Farm Comment 43: Vaccination Costs of Resold Isoweans Comment 44: Cost of Feed Produced by the Partners Comment 45: Price of Corn Set by the Partners for November and December 2003 Comment 46: Depreciation Cost Comment 47: G&A Offset for Land Rental Income Comment 48: Labor Allocation Comment 49: G&A Expenses Related to Fines Excel Comment 50: Mandatory Respondent Status Comment 51: Sales Exclusions Comment 52: Fertilizer as a Credit to the Cost of Producing Live Swine Excel Rainbow Colony Comment 53: Production Quantity Comment 54: Insurance Premiums Comment 55: Accrued Labor Costs Comment 56: Productive Assets Quantity Comment 57: Disputed Fertilizer Purchases Comment 58: Startup Adjustment Excel Riverbend Colony Comment 59: Foreign Exchange Expense Comment 60: GST Audit Adjustment Comment 61: Labor Excel Big Boulder Comment 62: Rental Income G&A Offset Comment 63: Fiscal Year G&A and Financial Expense Ratios Comment 64: Insurance and Donations Hytek Comment 65: CEP Profit Comment 66: Further Manufacturing Costs Comment 67: Certain Payments to Owners Comment 68: Interest Income [FR Doc. E5–1029 Filed 3–10–05; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE International Trade Administration [A–351–806] Silicon Metal From Brazil: Notice of Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Review Import Administration, International Trade Administration, U.S. Department of Commerce. DATES: Effective Date: March 11, 2005. FOR FURTHER INFORMATION CONTACT: Maisha Cryor or Steven Ryan, at (202) AGENCY: E:\FR\FM\11MRN1.SGM 11MRN1

Agencies

[Federal Register Volume 70, Number 47 (Friday, March 11, 2005)]
[Notices]
[Pages 12181-12185]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-1029]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-122-850]


Notice of Final Determination of Sales at Less Than Fair Value: 
Live Swine From Canada

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

SUMMARY: On October 20, 2004, the Department of Commerce published a 
preliminary determination in the antidumping duty investigation of live 
swine from Canada. We gave interested parties an opportunity to comment 
on the preliminary determination. Based upon the results of 
verification and our analysis of the comments received, we have made 
certain changes. We continue to find that live swine from Canada were 
sold in the United States below normal value during the period of 
investigation. The final weighted-average dumping margins are listed 
below in the section entitled ``Continuation of Suspension of 
Liquidation.''

DATES: Effective Date: March 11, 2005.

FOR FURTHER INFORMATION CONTACT: Cole Kyle or Andrew Smith, AD/CVD 
Operations, Office 1, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
1503 or (202) 482-1276, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On October 20, 2004, the Department of Commerce (``the 
Department'') published in the Federal Register the preliminary 
determination in its investigation of live swine from Canada. See 
Notice of Preliminary Determination of Sales at Less Than Fair Value 
and Postponement of Final Determination:

[[Page 12182]]

Live Swine From Canada, 69 FR 61639 (October 20, 2004) (``Preliminary 
Determination'').
    Since the Preliminary Determination, the following events have 
occurred:
    On October 25, 2004, Excel requested that the Department reconsider 
its preliminary decision to rescind its selection of Excel as a 
mandatory respondent in this investigation.
    On November 3, 2004, the Department decided to verify Excel's 
questionnaire responses.
    On November 29, 2004, Premium Pork Canada, Inc. (``Premium Pork'') 
withdrew from this investigation.
    In November and December 2004, and January 2005, we conducted 
verifications of the sales and cost of production (``COP'') 
questionnaire responses submitted by Ontario Pork Producers' Marketing 
Board (``Ontario Pork''), Hytek, Inc. (``Hytek''), and Excel Swine 
Services, Inc. (``Excel'') at each company's headquarters and at 
certain farm locations. We issued verification reports in January 2005.
    We received case and rebuttal briefs from the Illinois Pork 
Producers Association, the Indiana Pork Advocacy Coalition, the Iowa 
Pork Producers Association, the Minnesota Pork Producers Association, 
the Missouri Pork Association, the Nebraska Pork Producers Association, 
Inc., the North Carolina Pork Council, Inc., the Ohio Pork Producers 
Council, and 119 individual producers of live swine \1\ (collectively, 
hereinafter, ``the petitioners''), Excel, Hytek, Ontario Pork, and 
Baxter Transport, Ltd., J. Quintaine & Son, Ltd., and Zantingh Swine 
Inc.
---------------------------------------------------------------------------

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

Scope of Investigation

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

Scope Comments

    In the Notice of Initiation of Antidumping Duty Investigation: Live 
Swine from Canada, 69 FR 19815 (April 14, 2004) (``Initiation 
Notice''), we invited comments on the scope of this proceeding. On May 
4, 2004, we received a request from the GOC to amend the scope of this 
investigation and the companion countervailing duty (``CVD'') 
investigation. Specifically, the GOC requested that the scope be 
amended to exclude hybrid breeding stock. According to the GOC, 
domestic producers use hybrid breeding stock instead of purebred stock 
to strengthen their strains of swine. The GOC stated that no evidence 
was provided of injury, or threat of injury, to the domestic live swine 
industry from the importation of hybrid breeding stock. Furthermore, 
the GOC noted that the petition excluded USDA certified purebred 
breeding swine from the scope of the above-mentioned investigations. 
The GOC argued that the documentation which accompanies imported hybrid 
breeding swine makes it easy to distinguish hybrid breeding swine from 
other live swine.
    On August 4, 2004, the petitioners submitted a response to the 
GOC's scope exclusion request and proposed modified scope language. The 
petitioners stated they did not oppose the GOC's request to exclude 
hybrid breeding stock, but were concerned about the potential for 
circumvention of any CVD or antidumping duty (``AD'') order on live 
swine from Canada through non-breeding swine entering the domestic 
market as breeding stock. Thus, the petitioners proposed modified scope 
language that would require end-use certification if the petitioners or 
other interested parties provide a reasonable basis to believe or 
suspect that there exists a pattern of importation of such products for 
other than this application. Moreover, on July 30, 2004, the 
petitioners submitted a request to the International Trade Commission 
(``ITC'') to modify the HTSUS by adding a statistical breakout that 
would separately report imports of breeding animals other than purebred 
breeding animals, allowing the domestic industry to monitor the import 
trends of hybrid breeding stock.
    On August 9, 2004, both the GOC and the respondent companies 
submitted comments to respond to the petitioners' proposed revised 
scope. Both the GOC and the respondent companies stated that they 
generally agreed with the petitioners' modified scope language, with 
the two following exceptions: (1) They contended that the petitioners' 
language setting forth the mechanics of any end use certification 
procedure was premature and unnecessary, and (2) they argued that the 
petitioners' language stating that ``all products meeting the physical 
description of subject merchandise that are not specifically excluded 
are included in this scope'' was unnecessary because the physical 
description of the merchandise in scope remains determinative.
    On August 12, 2004, the petitioners submitted a response to the 
August 9,

[[Page 12183]]

2004 comments from the GOC and the respondents. The petitioners 
reiterated their support for their proposed modification to the scope 
language. They argued that (1) their proposed language had been used 
before by the Department in other proceedings; (2) since U.S. importers 
bear the burden of paying the duties, the importers should be required 
to certify to the end use of the product; and (3) with the petitioners' 
concerns about circumvention, the ``physical description'' language 
provided an important clarification that all live swine except for the 
excluded products are included in the scope.
    As further discussed in the August 16, 2004 memorandum entitled 
``Scope Exclusion Request: Hybrid Breeding Stock'' (on file in the 
Department's Central Records Unit in Room B-099 of the main Department 
building (``CRU'')), we preliminarily revised the scope in both the AD 
and companion CVD proceedings based on the above scope comments. See 
Preliminary Determination, 69 FR 61639, 61640-61641, and Notice of 
Preliminary Determination of Sales at Less Than Fair Value and 
Postponement of Final Determination: Live Swine from Canada, 69 FR 
51800, 51801-51802 (August 23, 2004). No further scope comments were 
received from any party subsequent to these preliminary determination. 
Thus, we have adopted the revised scope from the Preliminary 
Determination for this final determination. The revised scope language 
is included in the ``Scope of Investigation'' section, above.

Period of Investigation

    The period of investigation (``POI'') is January 1, 2003, through 
December 31, 2003. This period corresponds to the four most recent 
fiscal quarters prior to the filing of the petition on March 5, 2004.

Facts Otherwise Available

    Section 776(a)(2) of the Act provides that the Department shall 
apply ``facts otherwise available'' if, inter alia, a respondent (A) 
withholds information that has been requested; (B) fails to provide 
information within the deadlines established, or in the form or manner 
requested by the Department, subject to subsections (c)(1) and (e) of 
Section 782; (C) significantly impedes a proceeding; or (D) provides 
information that cannot be verified.
    Section 782(e) of the Act further provides that the Department 
shall not decline to consider information that is submitted by an 
interested party and that is necessary to the determination but does 
not meet all the applicable requirements established by the Department 
if (1) the information is submitted by the deadline established for its 
submission; (2) the information can be verified; (3) the information is 
not so incomplete that it cannot serve as a reliable basis for reaching 
the applicable determination; (4) the interested party has demonstrated 
that it acted to the best of its ability in providing the information 
and meeting the requirements established by the Department with respect 
to the information; and (5) the information can be used without undue 
difficulties.
    Premium Pork responded to the Department's questionnaires and 
otherwise participated in this investigation until November 29, 2004, 
two weeks before Premium Pork's scheduled verification. On November 29, 
2004, Premium Pork withdrew from this investigation because of its 
impending dissolution. See Premium Pork's November 29, 2004 withdrawal 
letter. Premium Pork's receivers stated that its companies would ``not 
continue their current integrated operations'' after its asset sales 
were completed. Id. The Department has not received any further 
communication from Premium Pork.
    In applying facts otherwise available, section 776(b) of the Act 
provides that the Department may use an inference adverse to the 
interests of a party that has failed to cooperate by not acting to the 
best of its ability to comply with the Department's requests for 
information. See, e.g, Notice of Final Determination of Sales at Less 
Than Fair Value and Final Negative Critical Circumstances: Carbon and 
Certain Alloy Steel Wire Rod from Brazil., 67 FR 55792, 55794-96 
(August 30, 2002). Adverse inferences are appropriate ``to ensure that 
the party does not obtain a more favorable result by failing to 
cooperate than if it had cooperated fully.'' See Statement of 
Administrative Action accompanying the Uruguay Round Agreements Act, 
H.R. Rep. No. 103-316, at 870 (1994) (``SAA'').
    In this case, Premium Pork ultimately failed to cooperate to the 
best of its ability because it failed to participate in verification. 
Therefore, the Department finds that in selecting from among the facts 
otherwise available, an adverse inference is warranted. See, e.g., 
Notice of Final Determination of Sales at Less Than Fair Value: Certain 
Frozen and Warmwater Shrimp from Brazil, 69 FR 76910 (December 23, 
2004) and accompanying Issues and Decision Memorandum at Comment 22 
(the Department applied total adverse facts available where the 
respondent withdrew from the investigation prior to verification) and 
Notice of Final Determination of Sales at Less than Fair Value: 
Circular Seamless Stainless Steel Hollow Products from Japan, 65 FR 
42985, 42986 (July 12, 2000) (the Department applied total adverse 
facts available where the respondent failed to respond to the 
antidumping questionnaires).
    As adverse facts available, we have assigned Premium Pork a margin 
of 18.87 percent, the highest price-to-price margin alleged in the 
petition, in accordance with section 776(b)(1). Section 776(b) of the 
Act notes that an adverse facts available rate may include reliance on 
information derived from: (1) The petition; (2) a final determination 
in the investigation; (3) any previous review; or (4) any other 
information placed on the record. Thus, the statute does not limit the 
specific sources from which the Department may obtain information for 
use as facts available. The SAA recognizes the importance of adverse 
facts available as an investigative tool in antidumping proceedings. 
The Department's potential use of adverse facts available provides the 
only incentive to foreign exporters and producers to respond to the 
Department's questionnaires. See SAA at 868.
    Section 776(c) of the Act mandates that the Department, to the 
extent practicable, shall corroborate secondary information (such as 
petition data) using independent sources reasonably at its disposal. In 
accordance with the law, the Department, to the extent practicable, 
will examine the reliability and relevance of the information used.
    To corroborate the margin assigned to Premium Pork, we compared the 
normal values and U.S. prices submitted by the petitioners, as amended 
by the Department in the April 7, 2004, Initiation Checklist, to data 
submitted by the respondents for whom we are calculating a margin. See 
March 4, 2004, memorandum, ``Final Determination of Live Swine from 
Canada: Corroboration Memorandum.'' This comparison corroborates and 
supports the reliability of the selected margin.
    With respect to the relevance aspect of corroboration, however, the 
Department will consider information reasonably at its disposal as to 
whether there are circumstances that would render a margin 
inappropriate. Where circumstances indicate that the selected margin is 
not appropriate as adverse facts available, the Department will 
disregard the margin and determine an appropriate margin (see, e.g., 
Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty 
Administrative Review, 61 FR 6812, 6814 (February 22,

[[Page 12184]]

1996) (where the Department disregarded the highest margin as adverse 
facts available because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
margin)). Therefore, we also examined whether any information on the 
record would discredit the selected rate as reasonable facts available 
for Premium Pork. No such information exists. In particular, there is 
no information that might lead to a conclusion that a different rate 
would be more appropriate.
    Accordingly, we have assigned Premium Pork the rate of 18.87 
percent as total adverse facts available. This is consistent with 
section 776(b) of the Act which states that adverse inferences may 
include reliance on information derived from the petition.

Fair Value Comparisons

    We calculated constructed export price, export price, and normal 
value based on the same methodologies used in the Preliminary 
Determination and in our November 3, 2004, calculations \2\ for Excel, 
with the following exceptions:
---------------------------------------------------------------------------

    \2\ See Memorandum to File, ``Export Price Calculation 
Memorandum for Excel Swine Services, Inc./Riverbend Colony Hutterian 
Brethren Trust, Rainbow Colony Hutterian Brethren Trust, and Big 
Boulder Creek Farms, Ltd.,'' dated November 3, 2004, and Memorandum 
to File, ``Cost of Production and Constructed Value Calculation 
Memorandum--Excel Swine Services, Inc./Riverbend Colony Hutterian 
Brethren Trust, Rainbow Colony Hutterian Brethren Trust, and Big 
Boulder Creek Farms, Ltd.,'' dated November 3, 2004.
---------------------------------------------------------------------------

Ontario Pork

    We used the sales databases submitted by Ontario Pork after 
verification, which include the minor corrections presented at 
verification. We revised Ontario Pork's advertising expenses. See 
Decision Memorandum at Comment 6. We did not include the U.S. direct 
selling expense that we included in the Preliminary Determination. See 
Decision Memorandum at Comment 7. We revised Ontario Pork's reported 
crossing fees based on information contained in Ontario Pork's 
verification exhibits. See Memorandum to File, ``Ontario Pork 
Producers' Marketing Board Final Determination Calculation 
Memorandum,'' dated March 4, 2005.

Excel

    We used the U.S. database submitted by Excel after verification in 
our margin calculations, which includes the minor corrections presented 
at verification. In addition, we disregarded sales of substandard 
merchandise. See Decision Memorandum at Comment 51. See Memorandum to 
File, ``Excel Swine Service, Inc. Final Determination Calculation 
Memorandum,'' dated March 4, 2005.

Hytek

    We used the databases submitted by Hytek after verification, which 
include the minor corrections presented at verification. For Hytek's 
U.S. sales, we accounted for an additional billing adjustment and 
direct selling expense which were presented as minor corrections at 
verification. In our product comparisons, we prevented matches between 
U.S. sales of isoweans and home market sales of spent boars. See 
Memorandum to File, ``Hytek, Ltd. Final Determination Calculation 
Memorandum,'' dated March 4, 2005.

Cost of Production and Constructed Value

    We calculated the cost of production (``COP'') and constructed 
value (``CV'') for Ontario Pork, Hytek, and Excel based on the same 
methodologies used in the Preliminary Determination, and in our 
November 3, 2004, calculations \3\ for Excel, except for those changes 
noted in the Memorandum to Neal M. Halper, ``Cost of Production and 
Constructed Value Adjustments for the Final Determination--Ontario Pork 
Producers' Marketing Board Cost Respondents,'' dated March 4, 2005; 
Memorandum to Neal M. Halper, ``Cost of Production and Constructed 
Value Calculation Adjustments for the Final Determination--Excel Swine 
Services, Inc./Riverbend Colony of Hutterian Bretheren Trust, Rainbow 
Colony of Hutterian Bretheren Trust, and Big Boulder Creek Farms 
Ltd.,'' dated March 4, 2005; and Memorandum to Neal M. Halper, ``Cost 
of Production and Constructed Value Adjustments for the Final 
Determination--Hytek Ltd.,'' dated March 4, 2005.
---------------------------------------------------------------------------

    \3\ See Memorandum to File, ``Export Price Calculation 
Memorandum for Excel Swine Services, Inc./Riverbend Colony Hutterian 
Brethren Trust, Rainbow Colony Hutterian Brethren Trust, and Big 
Boulder Creek Farms, Ltd.,'' dated November 3, 2004, and Memorandum 
to File, ``Cost of Production and Constructed Value Calculation 
Memorandum--Excel Swine Services, Inc./Riverbend Colony Hutterian 
Brethren Trust, Rainbow Colony Hutterian Brethren Trust, and Big 
Boulder Creek Farms, Ltd.,'' dated November 3, 2004.
---------------------------------------------------------------------------

Home Market Sales Disregarded

    Pursuant to section 773(b)(1) of the Act, where less than 20 
percent of a respondent's sales of a given product during the POI were 
at prices less than the COP, we do not disregard any below-cost sales 
of that product because we determine that in such instances the below-
cost sales were not made in ``substantial quantities.'' Where 20 
percent or more of a respondent's sales of a given product are at 
prices less than the COP, we determine that the below-cost sales 
represent ``substantial quantities'' within an extended period of time, 
in accordance with section 773(b)(1)(A) of the Act. In such cases, we 
also determine whether such sales were made at prices which would not 
permit recovery of all costs within a reasonable period of time, in 
accordance with section 773(b)(1)(B) of the Act.
    With respect to Ontario Pork and Hytek, for certain products, more 
than 20 percent of the comparison market sales were at prices less than 
the COP and, thus, the below-cost sales were made within an extended 
period of time in substantial quantities. In addition, these sales were 
made at prices that did not provide for the recovery of costs within a 
reasonable period of time. We therefore excluded these sales and used 
the remaining sales, if any, as the basis for determining NV, in 
accordance with section 773(b)(1) of the Act.

Verifications

    As provided in section 782(i)(1) of the Act, we verified the 
information submitted by the respondents during November and December, 
2004, and January, 2005. We used standard verification procedures, 
including examination of relevant accounting and production records, as 
well as original source documents provided by the respondents.

Analysis of Comments Received

    All issues raised in the petitioners' and the respondents' case and 
rebuttal briefs are addressed in the March 4, 2005, Issues and Decision 
Memorandum for the Final Determination in the Antidumping Duty 
Investigation of Live Swine from Canada (``Decision Memorandum'') which 
is hereby adopted by this notice. Attached to this notice as an 
appendix is a list of the issues that the petitioners and the 
respondents have raised and to which we have responded in the Decision 
Memorandum. Parties can find a complete discussion of all issues raised 
in these investigations and the corresponding recommendations in this 
public memorandum, which is on file in the Department's CRU. In 
addition, a complete version of the Decision Memorandum can be accessed 
directly on the Web at https://ia.ita.doc.gov/frn/summary/list.htm. The 
paper copy and electronic version of the Decision Memorandum are 
identical in content.

[[Page 12185]]

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B)(ii) of the Act, we are 
directing the U.S. Customs and Border Protection (``CBP'') to continue 
to suspend liquidation of all imports of subject merchandise from 
Canada, except merchandise produced and exported by Hytek, that are 
entered, or withdrawn from warehouse, for consumption on or after 
October 20, 2004, the date of publication of the Preliminary 
Determination in the Federal Register. The CBP shall continue to 
require a cash deposit or the posting of a bond equal to the weighted-
average amount by which the NV exceeds the EP, as indicated in the 
chart below. For Hytek, because its estimated weighted-average final 
dumping margin is de minimis, we are directing CBP to terminate 
suspension of liquidation of Hytek's entries and refund all bonds and 
cash deposits posted on subject merchandise produced by Hytek. These 
suspension-of-liquidation instructions will remain in effect until 
further notice. The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
           Exporter/manufacturer               Weighted-average margin
------------------------------------------------------------------------
Ontario Pork Producers' Marketing Board...  12.68 percent.
Hytek, Inc................................  0.53 percent (de minimis).
Premium Pork Canada, Inc..................  18.87 percent (AFA).
Excel Swine Services, Inc.................  4.64 percent.
All Others................................  10.63 percent.\4\
------------------------------------------------------------------------
\4\ We excluded the de minimis margin and the margin based on adverse
  facts available from the calculation of the all-others rate. See
  Section 735(c)(5)(A) of the Act.

ITC Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (``ITC'') of our determination. As our 
final determination is affirmative, the ITC will, within 45 days, 
determine whether these imports are materially injuring, or threatening 
material injury to, the U.S. industry. If the ITC determines that 
material injury, or threat of material injury, does not exist, the 
proceeding will be terminated and all securities posted will be 
refunded or canceled. If the ITC determines that such injury does 
exist, the Department will issue an antidumping duty order.
    This notice also serves as a reminder to parties subject to 
administrative protective order (``APO'') of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305. Timely notification of return or 
destruction of APO materials, or conversion to judicial protective 
order, is hereby requested. Failure to comply with the regulations and 
the terms of an APO is a sanctionable violation.
    This determination is issued and published in accordance with 
sections 735(d) and 777(i)(1) of the Act.

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

Appendix

General Issues

Comment 1: Perishable Agricultural Products
Comment 2: Net Income Stabilization Account
Comment 3: Allocation of Total Production Costs

Company Specific Issues

Premium Pork

Comment 4: Premium Pork Withdrawal

Ontario Pork

Comment 5: Monthly Price-Averaging
Comment 6: Advertising Expenses
Comment 7: Bank Charges
Comment 8: Credit Expenses
Comment 9: Freight Expenses

Ontario Pork Farm A

Comment 10: Cost of Feed
Comment 11: Imputed Labor Costs
Comment 12: Cost of Breeding Stock
Comment 13: Denominator Used for the General and Administrative 
Expense Ratio
Comment 14: Breeding Stock Salvage Value
Comment 15: Sows Supplied by Affiliates
Comment 16: Hogs Used for Personal Consumption
Comment 17: Per-unit Finishing Costs Adjusted by the Feeders Sold
Comment 18: Farm A's Change in Inventory Values
Comment 19: Livestock Purchases in the Indirect Cost Allocation
Comment 20: Lease of Crop Land
Comment 21: Optional Inventory Adjustment
Comment 22: Additional Accrued Cost Items
Comment 23: G&A Expenses
Comment 24: Interest Rates

Ontario Pork Farm B

Comment 25: Affiliated Feed Company
Comment 26: Tile Drainage
Comment 27: Interest Income Earned on NISA and Risk Management 
Funding
Comment 28: Prepaid Feed Costs
Comment 29: Donated Hogs
Comment 30: Misallocated Costs
Comment 31: Reconciliation Error
Comment 32: Imputed Labor
Comment 33: Interest Expense for Loan
Comment 34: Interest Income

Ontario Pork Farm C

Comment 35: Claimed Offsets for Subsidies
Comment 36: Failure to Report all Feed Costs
Comment 37: Capitalized Feed Costs
Comment 38: Errors Revealed During Verification Should be Corrected
Comment 39: Proper Treatment of ``Credit to Barn Quality'' Account
Comment 40: G&A Expenses
Comment 41: Collapsing the Operations of Affiliated Suppliers

Ontario Pork Farm D

Comment 42: Costs Related to Transporting Hogs to the Farm
Comment 43: Vaccination Costs of Resold Isoweans
Comment 44: Cost of Feed Produced by the Partners
Comment 45: Price of Corn Set by the Partners for November and 
December 2003
Comment 46: Depreciation Cost
Comment 47: G&A Offset for Land Rental Income
Comment 48: Labor Allocation
Comment 49: G&A Expenses Related to Fines

Excel

Comment 50: Mandatory Respondent Status
Comment 51: Sales Exclusions
Comment 52: Fertilizer as a Credit to the Cost of Producing Live 
Swine

Excel Rainbow Colony

Comment 53: Production Quantity
Comment 54: Insurance Premiums
Comment 55: Accrued Labor Costs
Comment 56: Productive Assets Quantity
Comment 57: Disputed Fertilizer Purchases
Comment 58: Startup Adjustment

Excel Riverbend Colony

Comment 59: Foreign Exchange Expense
Comment 60: GST Audit Adjustment
Comment 61: Labor

Excel Big Boulder

Comment 62: Rental Income G&A Offset
Comment 63: Fiscal Year G&A and Financial Expense Ratios
Comment 64: Insurance and Donations

Hytek

Comment 65: CEP Profit
Comment 66: Further Manufacturing Costs
Comment 67: Certain Payments to Owners
Comment 68: Interest Income
[FR Doc. E5-1029 Filed 3-10-05; 8:45 am]
BILLING CODE 3510-DS-P
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