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1512 Federal Register / Vol. 71, No.

6 / Tuesday, January 10, 2006 / Notices

DEPARTMENT OF COMMERCE Steel Ltd. (Essar), an Indian producer Hot–Rolled Carbon Steel Flat Products
and exporter of subject merchandise, from India, 70 FR 53166 (September 7,
International Trade Administration and on January 3, 2005, we received an 2005).
(C–533–821) untimely request for review from On October 20 through October 28,
petitioner.1 On January 31, 2005, the 2005, we conducted verifications of the
Notice of Preliminary Results of Department initiated an administrative questionnaire responses of the GOI and
Countervailing Duty Administrative review of the CVD order on certain hot– Essar in New Delhi and Mumbai, India.
Review: Certain Hot–Rolled Carbon rolled carbon steel flat products from In accordance with 19 CFR
Steel Flat Products from India India, covering POR January 01, 2004 351.213(b), this review covers only
through December 31, 2004. See those producers or exporters for which
AGENCY: Import Administration, Initiation of Antidumping and a review was specifically requested. The
International Trade Administration, Countervailing Duty Administrative only company subject to this review is
Department of Commerce. Reviews and Requests for Revocation in Essar. This review covers eleven
SUMMARY: The Department of Commerce Part, 70 FR 4818 (January 31, 2005). programs.
(the Department) is conducting an On February 3, 2005, the Department Scope of Order
administrative review of the issued a questionnaire to the
countervailing duty (CVD) order on Government of India (GOI) and Essar. The merchandise subject to this order
certain hot–rolled carbon steel flat We received questionnaire responses is certain hot–rolled flat–rolled carbon–
products from India for the period from Essar on April 11, 2005, and from quality steel products of a rectangular
January 1, 2004, through December 31, the GOI on April 7, 2003. On June 28, shape, of a width of 0.5 inch or greater,
2004, the period of review (POR). For 2005, we issued supplemental neither clad, plated, nor coated with
information on the net subsidy rate for questionnaires to the GOI and Essar; the metal and whether or not painted,
the reviewed company, see the responses were received on July 11, varnished, or coated with plastics or
‘‘Preliminary Results of Review’’ 2005, from the GOI and July 20, 2005, other non–metallic substances, in coils
section, infra. If the final results remain from Essar. On August 18, 2005, the (whether or not in successively
the same as the preliminary results of Department issued a second superimposed layers), regardless of
this review, we will instruct U.S. supplemental questionnaire to Essar. On thickness, and in straight lengths, of a
Customs and Border Protection (CBP) to August 25, 2005, Essar provided a thickness of less than 4.75 mm and of
assess countervailing duties as detailed response. a width measuring at least 10 times the
in the ‘‘Preliminary Results of On May 2 and June 29, 2005, thickness. Universal mill plate (i.e., flat–
Administrative Review’’ section, infra. petitioner submitted new subsidy rolled products rolled on four faces or
Interested parties are invited to allegations. These allegations covered in a closed box pass, of a width
comment on these preliminary results. the following programs: GOI’s provision exceeding 150 mm, but not exceeding
(See the ‘‘Public Comment’’ section, of high–grade iron ore for less than 1250 mm, and of a thickness of not less
infra). adequate remuneration, the State than 4 mm, not in coils and without
Government of Gujarat’s (SGOG) tax patterns in relief) of a thickness not less
EFFECTIVE DATE: January 10, 2006. than 4.0 mm is not included within the
incentives, and the State Government of
FOR FURTHER INFORMATION CONTACT: Maharashtra’s (SGOM) tax incentives. scope of this order.
Tipten Troidl or Preeti Tolani, AD/CVD On July 19, 2005, the Department Specifically included in the scope of
Operations, Office 3, Import initiated an investigation of the new this order are vacuum–degassed, fully
Administration, International Trade subsidy allegations. See Memorandum stabilized (commonly referred to as
Administration, U.S. Department of to Melissa G. Skinner regarding interstitial–free (IF)) steels, high–
Commerce, Room 4014, 14th Street and ‘‘Administrative Review of the strength low–alloy (HSLA) steels, and
Constitution Avenue, NW, Washington, Countervailing Duty Order on Certain the substrate for motor lamination
DC 20230; telephone: (202) 482–1767 or Hot–Rolled Carbon Steel Flat Products steels. IF steels are recognized as low–
(202) 482–0395, respectively. from India, New Subsidy Allegations’’ carbon steels with micro–alloying levels
SUPPLEMENTARY INFORMATION: (New Subsidy Allegation of elements such as titanium or niobium
Memorandum). On July 19, 2005, (also commonly referred to as
Background
additional supplemental questionnaires columbium), or both, added to stabilize
On December 3, 2001, the Department were issued to the GOI and Essar. The carbon and nitrogen elements. HSLA
published in the Federal Register the responses were received on August 10 steels are recognized as steels with
CVD order on certain hot–rolled carbon and August 25, 2005, from Essar and on micro–alloying levels of elements such
steel flat products from India. See September 2, 2005, from the GOI. On as chromium, copper, niobium,
Notice of Amended Final Determination September 12, 2005, we issued a vanadium, and molybdenum. The
and Notice of Countervailing Duty supplemental questionnaire to the GOI substrate for motor lamination steels
Orders: Certain Hot–Rolled Carbon Steel and on September 20, 2005, to Essar. We contains micro–alloying levels of
Flat Products from India and Indonesia, received responses from the GOI on elements such as silicon and aluminum.
66 FR 60198 (December 3, 2001) (Hot– October 7 and 14, 2005, and from Essar Steel products included in the scope
Rolled Amended Final Determination). on October 4 and 11, 2005. of this order, regardless of definitions in
On December 1, 2004, the Department On September 7, 2005, the the Harmonized Tariff Schedule of the
published a notice of opportunity to Department published in the Federal United States (HTS), are products in
request an administrative review of this Register an extension of the deadline for which: i) iron predominates, by weight,
CVD order. See Antidumping or the preliminary results. See Notice of over each of the other contained
Countervailing Duty Order, Finding, or Extension of Time Limits for elements; ii) the carbon content is 2
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Suspended Investigation; Opportunity Preliminary Results of Countervailing percent or less, by weight; and iii) none
to Request Administrative Review, 69 Duty Administrative Review: Certain of the elements listed below exceeds the
FR 69889 (December 1, 2004). On quantity, by weight, respectively
December 30, 2004, we received a 1 Petitioner in this case is United States Steel indicated:
timely request for review from Essar Corporation. 1.80 percent of manganese, or

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Federal Register / Vol. 71, No. 6 / Tuesday, January 10, 2006 / Notices 1513

2.25 percent of silicon, or 7211.19.75.60, and 7211.19.75.90. information, we relied on a rupee–


1.00 percent of copper, or Certain hot–rolled flat–rolled carbon– denominated, long–term benchmark
0.50 percent of aluminum, or quality steel covered by this order, interest rate from the immediately
1.25 percent of chromium, or including: vacuum–degassed fully preceding year as directed by 19 CFR
0.30 percent of cobalt, or stabilized; high–strength low–alloy; and 351.505(a)(2)(iii).
0.40 percent of lead, or the substrate for motor lamination steel
1.25 percent of nickel, or Benchmark for Long–Term Loans issued
may also enter under the following tariff
0.30 percent of tungsten, or in 2001 and 2002
numbers: 7225.11.00.00, 7225.19.00.00,
0.10 percent of molybdenum, or 7225.30.30.50, 7225.30.70.00, In the most recently completed
0.10 percent of niobium, or 7225.40.70.00, 7225.99.00.90, administrative review, we found Essar
0.15 percent of vanadium, or 7226.11.10.00, 7226.11.90.30, to be uncreditworthy during 2001 and
0.15 percent of zirconium. 7226.11.90.60, 7226.19.10.00, 2002. See Final Results of
All products that meet the physical 7226.19.90.00, 7226.91.50.00, Countervailing Duty Administrative
and chemical description provided 7226.91.70.00, 7226.91.80.00, and Review: Certain Hot–Rolled Carbon
above are within the scope of this order 7226.99.00.00. Subject merchandise Steel Flat Products from India, 69 FR
unless otherwise excluded. The may also enter under 7210.70.30.00, 26549 (May 13, 2004) (HRC First Review
following products, by way of example, 7210.90.90.00, 7211.14.00.30, Final), and Accompanying Issues and
are outside or specifically excluded 7212.40.10.00, 7212.40.50.00, and Decision Memorandum (HRC First
from the scope of this order: 7212.50.00.00. Although the HTS Review Decision Memo). As no new
• Alloy hot–rolled steel products in subheadings are provided for evidence has been provided to the
which at least one of the chemical convenience and customs purposes, the Department with respect to Essar’s
elements exceeds those listed above Department’s written description of the uncreditworthiness during 2001 and
(including, e.g., ASTM merchandise subject to this order is 2002, we will continue to apply the
specifications A543, A387, A514, dispositive. uncreditworthy methodology for those
A517, A506). programs requiring a long–term
• SAE/AISI grades of series 2300 and Subsidies Valuation Information benchmark for 2001 and 2002. For our
higher. Benchmarks for Loans and Discount long–term interest rate, we used India’s
• Ball bearings steels, as defined in Rate prime lending rate (PLR), as published
the HTS. by the Reserve Bank of India (RBI). We
• Tool steels, as defined in the HTS. Benchmark for Short–Term Loans note that we converted the PLR into a
• Silico–manganese (as defined in the In accordance with 19 CFR benchmark interest rate for
HTS) or silicon electrical steel with 351.505(a)(3)(ii), for those programs uncreditworthy companies using the
a silicon level exceeding 2.25 requiring the application of a short–term formula set forth in 19 CFR
percent. benchmark interest rate where the firm 351.505(a)(3)(iii).
has no comparable commercial loans,
• ASTM specifications A710 and the Department may use a national Benchmark for Long–Term Loans issued
A736. average interest rate for comparable from 2003 and 2004
commercial loans. Essar did not have For those programs requiring a rupee–
• USS Abrasion–resistant steels (USS any comparable, commercial loans denominated discount rate or the
AR 400, USS AR 500). denominated in the appropriate foreign application of a rupee–denominated,
• All products (proprietary or currency. Therefore, we are using the long–term benchmark interest rate, we
otherwise) based on an alloy ASTM currency–specific ‘‘Lending rates’’ from used company–specific interest rates, as
specification (sample specifications: private creditors as published in the reported by Essar.
ASTM A506, A507). International Financial Statistics. See Programs Preliminarily Determined To
• Non–rectangular shapes, not in Final Affirmative Countervailing Duty Be Countervailable
coils, which are the result of having Determination: Certain Hot–Rolled
been processed by cutting or Carbon Steel Flat Products from India, 1. Export Promotion Capital Goods
stamping and which have assumed 66 FR 49635 (September 28, 2001) (HRC Scheme (EPCGS)
the character of articles or products Investigation), and the Accompanying The EPCGS provides for a reduction
classified outside chapter 72 of the Issues and Decision Memorandum (HRC or exemption of customs duties and an
HTS. Investigation Decision Memo), at exemption from excise taxes on imports
The merchandise subject to this order Benchmarks for Loans and Discount of capital goods. Under this program,
is currently classifiable in the HTS at Rate. producers may import capital
subheadings: 7208.10.15.00, equipment at reduced rates of duty by
7208.10.30.00, 7208.10.60.00, Benchmark for Long–Term Loans issued
up to 2000 undertaking to earn convertible foreign
7208.25.30.00, 7208.25.60.00, exchange equal to five times the CIF
7208.26.00.30, 7208.26.00.60, For those programs requiring a rupee– value of capital goods to be fulfilled
7208.27.00.30, 7208.27.00.60, denominated discount rate or the over a period of eight years (12 years in
7208.36.00.30, 7208.36.00.60, application of a rupee–denominated, the case where the CIF value is Rs. 100
7208.37.00.30, 7208.37.00.60, long–term benchmark interest rate, we Crore2). For failure to meet the export
7208.38.00.15, 7208.38.00.30, used, where available, company– obligation, a company is subject to
7208.38.00.90, 7208.39.00.15, specific, weighted–average interest rates payment of all or part of the duty
7208.39.00.30, 7208.39.00.90, on commercial long–term, rupee– reduction, depending on the extent of
7208.40.60.30, 7208.40.60.60, denominated loans. We note, however, the export shortfall, plus penalty
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7208.53.00.00, 7208.54.00.00, that Essar did not have rupee– interest.


7208.90.00.00, 7211.14.00.90, denominated, long–term loans from In prior proceedings, we determined
7211.19.15.00, 7211.19.20.00, commercial banks for all required years. that import duty reductions provided
7211.19.30.00, 7211.19.45.00, Therefore, for those years for which we
7211.19.60.00, 7211.19.75.30, did not have company- specific 2A crore is equal to 10,000,000 rupees.

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1514 Federal Register / Vol. 71, No. 6 / Tuesday, January 10, 2006 / Notices

under the EPCGS constituted a benchmark to calculate the benefit of a the countervailable subsidy.’’ See
countervailable export subsidy. See e.g., contingent liability interest–free loan section 771(6)(A) of the Act. As a result,
Notice of Final Affirmative because the event upon which we have offset the benefit in an amount
Countervailing Duty Determination: repayment of the duties depends (i.e., equal to the fees paid.
Polyethylene Terephthalate Film, Sheet, the date of expiration of the time period To calculate the subsidy rate, we
and Strip from India, 67 FR 34950 (May for Essar to fulfill its export summed the benefits from the waived
16, 2002) (PET Film), and PET Film commitments) occurs at a point in time licenses and those licenses which have
Issues and Decision Memorandum (PET more than one year after the date the yet to be waived, which we determine
Film Decision Memo), at section II.A.4. capital goods were imported. conferred a benefit on Essar in the form
‘‘EPCGS.’’ Specifically, the Department Specifically, we used the calculated of contingent liability loans. Where
found that under the EPCGS program, long–term benchmark interest rate for licenses related to imports of capital
the GOI provides a financial Essar, as described in the ‘‘Subsidies goods during 2004, we prorated the
contribution under section 771(5)(D)(ii) Valuation’’ section, supra. The rate used contingent liability by the actual
of the Tariff Act of 1930, as amended corresponded to the year in which Essar number of days. After subtracting the
(the Act), in the form of revenue imported the item under the program. application fees, we divided Essar’s
foregone that otherwise would be due, Consistent with our policy, absent total benefit under the program by its
that a benefit is thereby conferred, as acknowledgment from the GOI that the respective total export sales during the
defined by section 771(5)(E) of the Act, liability has been eliminated, we POR. On this basis, we preliminarily
and that this program is specific under continue to treat benefits of these determine the net countervailable
section 771(5A)(B) of the Act because it licenses as contingent liabilities. See subsidy from this program to be 2.12
is contingent upon export performance. ‘‘Export Promotion of Capital Goods percent ad valorem.
No new information or evidence of Scheme (EPCGS)’’ section from the HRC
changed circumstances has been First Review Decision Memo. 2. State Government of Gujarat Tax
provided with respect to this program. The second benefit is the waiver of Incentives
Therefore, we continue to find that import duty on imports of capital
Pursuant to a 1995 Industrial Policy of
import duty reductions provided under equipment covered by those EPCGS
Gujarat and an Incentive Policy of 1995–
the EPCGS are countervailable export licenses for which export requirements
2000, the SGOG offered incentives, such
subsidies. have been met. Essar reported that it
as sales tax exemptions and deferrals, to
We have determined the benefit under imported machinery under the EPCGS
this program in accordance with our in the years prior to the POR and during companies that locate or invest in
findings and treatment of benefit in HRC the POR. Upon importation under these certain disadvantaged or rural areas in
Investigation and PET Film. See HRC licenses Essar received reduced import the State of Gujarat. A company could
Investigation at Analysis of Programs duty liabilities and agreed to the export be eligible to claim exemptions or
I.E. ‘‘Export Promotion of Capital Goods obligations prescribed under the deferrals valued up to 90 percent of the
Scheme (EPCGS)’’ and PET Film program, as noted above. For some of its total eligible capital investment. These
Decision Memo, at section II.A.4. licenses, Essar reported to the GOI that policies exempt companies from paying
‘‘EPCGS.’’ Specifically, there are two it met its export requirements and sales tax on the purchases of raw
benefits under the EPCGS program. The requested waiver of the obligation to materials, consumable stores, packing
first benefit is the amount of unpaid repay the duties otherwise due for materials and processing materials.
duties that would have to be paid to the importation of the equipment. For There are two schemes available under
GOI if the export requirements are not certain EPCGS licenses Essar provided this policy: Pioneer and Prestigious. To
met. The repayment of this liability is evidence that the GOI granted these be eligible for the incentives, companies
contingent on subsequent events, and in waivers during the POR. For those must make a fixed capital investment of
such instances it is the Department’s licenses upon which waivers were over 5 crores (Pioneer scheme) or 300
practice to treat any balance on an granted, we followed our methodology crores (Prestigious scheme) in a
unpaid liability as an interest–free loan. set forth in the HRC Investigation and qualified under–developed area in the
See 19 CFR 351.505(d)(1). Because Essar summed the benefits. We then state of Gujarat. See the January 3, 2006,
had not yet met its export obligation, we performed the 0.5 percent test to Memorandum to Eric B. Greynolds,
preliminarily determine that the determine whether the benefit should be Program Manager, AD/CVD Operations,
company has an outstanding contingent allocated or expensed. For one license Office 3, from Tipten Troidl and Preeti
liability during the POR. We further waived in 2002, we divided the benefit Tolani, Case Analysts, Regarding:
determine that the amount of the by Essar’s export sales for 2002 and Countervailing Duty Administrative
contingent liability to be treated as an found that the benefit was less than 0.5 Review of Certain Hot–Rolled Carbon
interest–free loan is the amount of the percent. Consistent with the policy set Steel Flat Products from India:
import duty reduction or exemption for forth in 19 CFR 351.524(b)(2), we Verification of the Questionnaire
those EPCGS licenses which Essar expensed that license during the year in Responses Submitted by the
applied but, as of the end of the POR, which it was waived. For other waived Government of India, at pages 3–4 (GOI
had not received a waiver of its licenses, we found that the benefit Verification Report). The amount of this
obligation to repay the duties from the exceeded the 0.5 percent test and we are eligible capital investment is linked to
GOI. allocating the benefit pursuant to the the amount of the incentives received
Accordingly, for those unpaid duties methodology described under 19 CFR over a period of eight to fourteen years,
for which Essar has yet to fulfill its 351.524(d)(1). depending on the category of
export obligations, we determine the Essar reported that it paid application participation. For the Pioneer scheme,
benefit to be the interest that Essar fees in order to obtain its EPCGS which initially began in 1986,
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would have paid during the POR had it licenses. We preliminarily determine companies making a capital investment
borrowed the full amount of the duty that the application fees paid by Essar during 1986 and 1991 were allowed to
reduction at the time of import. qualify as an ‘‘application fee, deposit, utilize this program. For the Prestigious
Pursuant to 19 CFR 351.505(d)(1), we or similar payment paid in order to scheme, tax incentives were offered
used a long–term interest rate as our qualify for, or to receive, the benefit of only for investment units which started

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production between 1990 and 1995. See according to three criteria: (1) Whether September, 2003 and ending on 10th
GOI Verification Report at 4. the company’s balance sheet indicates a September, 2004.’’ Id.
During the current review, we found loss, (2) whether there is an allegation With respect to the issue of
that Essar had investments under both that unemployment will occur if the specificity, during the course of this
the Pioneer and the Prestigious applicant is not declared a relief review we asked the SGOG to provide
schemes. During the POR, Essar only undertaking, and (3) whether there is certain information regarding the
took sales tax exemptions. In PET Resin, information demonstrating that the application process and approval of
the Department determined that the company has the potential to turn itself BRU protection as well as the
purchases under these two schemes around. companies granted relief undertaking
resulted in companies not paying the Essar was declared a relief status. In our initial questionnaire, our
state sales tax otherwise due, and thus undertaking and was granted protection June 28, 2005, supplemental and our
constituted a countervailable subsidy. beginning on March 19, 2002. See September 14, 2005, supplemental, we
See Final Affirmative Countervailing Notice of Preliminary Results of asked the SGOG to submit information
Duty Determination: Bottle–Grade Countervailing Duty Administrative on the companies and industries who
Polyethylene Terephthalate (PET) Resin Review: Certain Hot–Rolled Carbon applied for and were granted relief
from India, 70 DR 13460 (March 21, Steel Flat Products from India, 69 FR during the POR. In their October 7,
2005) (PET Resin), and Accompanying 907 (January 7, 2004) (HRC First Review 2005, questionnaire response, the SGOG
Issues and Decision Memorandum (PET Prelim) at 911. The Department submitted a list of only those companies
Resin Decision Memo) at page 10. determined that the SGOG’s protection that were granted either initial
Consistent with our findings in PET of Essar from litigation under the BRU protection or an extension of their
Resin, we preliminarily find that this constituted a financial contribution protection. They did not provide any
program is countervailable. It is limited under section 771(5)(B)(iii) of the Act. information on those companies who
to only those companies that make an applied for relief and whose
In particular, we found that by granting
investment in a specified disadvantaged applications were rejected. During the
Essar protection under the BRU and by
area and is therefore specific under time period that Essar was granted its
prohibiting Essar’s creditors from
section 771(5A)(D)(iv) of the Act. We second protection under BRU, the
pursing any pending litigation against
also preliminarily find that the SGOG SGOG granted five companies initial
the company, ‘‘the SGOG directed the
provides a financial contribution under protection, 10 companies (including
creditors to not collect principal and
section 771(5)(D)(ii) of the Act by Essar) an extension of their initial
interest payments on loans that
foregoing the collection of sales tax protection, one company a third
otherwise would be due.’’ HRC First
revenue and that Essar receives a benefit extension, and 3 companies a fourth
Review Final and HRC First Review
under section 771(5)(E) of the Act in the extension of their protection, for a total
amount of sales tax that Essar does not Decision Memo at page 5. Moreover, we
of 19 companies in 10 industries.
pay. found that under section 771(E)(ii) of
However, the SGOG did not provide the
Essar reported that it claimed tax the Act, Essar benefitted under this
information requested concerning the
exemptions on purchases during the program ‘‘in an amount equal to the
number of companies whose
POR. To calculate the benefit under this principal and interest it would have had
applications were rejected.
program we multiplied the tax rate by to pay absent the legal protection In the HRC First Review Prelim, the
the amount of purchases Essar reported afforded under the BRU.’’ Id. Lastly, the Department found that eight companies
it claimed tax exemptions for in 2004. Department found this program was were granted protection in 2001 and six
We summed the amounts for both the specific under section 771(5A)(D)(iii)(I) in 2002, while 25–30 applicants had
Pioneer and Prestigious schemes. We of the Act. submitted applications during that time.
then divided this amount by Essar’s During this POR, Essar applied for In light of the existence of generic
total sales. On this basis, we and was granted an extension of its criteria, the absence of any specific
preliminarily calculated an ad valorem original one-year protection under the measure for evaluating the criteria, and
rate of 0.12 percent for 2004. BRU. Its initial application for an the number of companies whose
extension was denied by the SGOG, but applications were rejected, the
3. Bombay Relief Undertaking (BRU) Act upon amending its application to seek
Department determined that the SGOG
Enacted in 1958 and later amended in protection only from unsecured foreign exercised discretion in a manner in
1974, the BRU is a provincial law lenders, Essar’s request for an extension which it grants approval under this
enacted by the SGOG that is intended to was granted. See GOI’s July 11, 2005, program to a limited number of users,
safeguard employment. Under the BRU, submission at page 13 and Exhibit 8. leading the Department to determine the
companies designated as ‘‘relief The SGOG extended Essar’s BRU program was de facto specific.
undertakings’’ have all litigation against protection for a one-year period from In this review, the SGOG did not
them stayed for a period of one year. In September 11, 2003, to September 10, provide the Department with the
disputes between companies and their 2004. In granting Essar protection, the information it requested on this issue.
creditors, the effect is that principal and SGOG stated that it was ’’. . . pleased to Section 776(a)(2)(A) of the Act requires
interest payments are also put on hold, direct that dues of the foreign un- the use of facts available when an
as a creditor is unable to sue for secured lenders only, in relation to the interested party withholds information
collection. During the time in which said undertaking rights, privileges, that has been requested by the
litigation is stayed, the company has the obligations, liabilities (other than those Department. As described above, the
opportunity to become current on its liabilities etc, towards its employees) SGOG failed to provide the requested
financial debts. Subsequent BRU occurred or incurred before dated 11th information concerning the total
declarations are allowable after the September, 2003 and remedy for the number of applications during this
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initial declaration. A company can be enforcement thereof shall be suspended review. Therefore, we must resort to the
protected under the BRU for up to ten and proceedings relating thereto use of facts otherwise available.
years. To be designated as a relief pending before any Court, Tribunal, Furthermore, section 776(b) of the Act
undertaking, a company must submit an officer or Authority shall be stayed provides that in selecting from among
application which the SGOG evaluates during one year commencing from 11th the facts available, the Department may

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use an inference that is adverse to the Therefore, the Department government provided a financial
interests of a party if it determines that preliminarily determines that the contribution and that a benefit was
a party has failed to cooperate to the SGOG’s protection of Essar from thereby conferred, and that the subsidy
best of its ability. The Department finds litigation under the BRU continues to is specific within the meaning of section
that, by not providing necessary constitute a financial contribution under 771(5A) of the Act.
information specifically requested by section 771(5)(B)(iii) of the Act to the Section 771(5)(D)(iii) of the Act states
the Department, despite numerous extent that the SGOG is prohibiting that the provision of a good or service
opportunities, the SGOG has failed to Essar’s creditors from pursuing any (other than general infrastructure) by a
cooperate to the best of its ability. pending litigation against the company government (or any public entity)
Therefore, in selecting from among the and thereby directing creditors not to constitutes a financial contribution.
facts otherwise available, the collect principal and interest payments During verification, the Department
Department determines that an adverse on loans that otherwise would be due. found that the NMDC is a mining
inference is warranted. When We also preliminarily find that Essar company governed by the GOI’s
employing an adverse inference in an receives a benefit under this program in Ministry of Steel and that the GOI holds
administrative review, section 776(b) of an amount equal to the interest and 98 percent of its shares. See GOI
the Act allows the Department to rely principal it would have had to pay Verification Report, at page 5.
upon information derived from the absent the legal protection afforded Accordingly, we preliminarily
petition, a final determination in the under the BRU. determine that the NMDC is a part of the
investigation, any previous review or To calculate the benefit to Essar, we GOI. Therefore, we preliminarily find
any other information placed on the summed the amount of interest and that the GOI directly, through the
record. In applying adverse facts principal payments that Essar would government–owned NMDC, provided a
available in the instant review, we have have otherwise been required to make financial contribution as defined under
used information on the record of this had it not been under the protection of section 771(5)(D)(iii) of the Act to Essar.
administrative review. Therefore, as the BRU. We treated these payments as We preliminarily find that the GOI’s
adverse facts available, as consistent interest–free short–term loans. provision of high–grade iron ore is
with the our findings in the last Therefore, we calculated the interest specific under section 771(5A)(D)(iii)(I)
administrative review, and because the that would have been due by the of the Act because the actual recipient
SGOG did not provide us with the interest rate listed in their loan of the subsidy is limited to industries
number of applicants, the Department agreement. See the GOI’s July 11, 2005, that use iron ore, including the steel
preliminarily concludes that the SGOG submission at page 80, Annexure 8. We industry, and is thus limited in number.
added this amount to the outstanding Section 771(5)(E)(iv) of the Act
continues to exercise discretion in the
principal and multiplied the sum by the provides that a benefit is conferred by
manner in which it grants approval
short–term interest benchmark, as a government when the government
under this program to a limited number
discussed in the ‘‘Benchmarks for Loans provides the good or service for less
of users. Therefore, we preliminarily than adequate remuneration. Pursuant
find this program to be specific under and discount Rate’’ section, supra. We
then divided this amount by Essar’s to 19 CFR 351.511(a)(2)(i) the
section 771(5A)(D)(iii)(I) of the Act. Department will normally seek to
total sales for 2004. As information on
Essar has argued that it did not have the record indicates that the protection measure the adequacy of remuneration
any protection from the government under the BRU expired on September by comparing the government price for
under the BRU since it expired in 2004. 10, 2004, we are only calculating a net the goods or service to a market–
See Essar’s August 25, 2005, submission subsidy rate for this program up to that determined price resulting from actual
at page 7, and October 4, 2005, date. On this basis, we preliminarily transactions in the country in question.
submission at page 5. Moreover, during find that Essar received a The regulations provide that such
verification Essar officials explained countervailable subsidy of 0.63 percent market–determined prices could
that although one creditor had sued ad valorem. include prices stemming from actual
Essar in a London court, pending the transactions between private parties,
outcome of the litigation, Essar had 4. Sale of High–Grade Iron Ore for Less actual imports, or, in certain
placed the full amount of the loan into Than Adequate Remuneration circumstances, actual sales from
a reserve account with the Court. Essar On May 2 and June 29, 2005, competitively run government auctions.
further explained that if the creditor petitioner submitted new subsidy In seeking a market–determined
wins the litigation, the creditor will allegations, alleging that the GOI, benchmark price, we found that Essar
receive the amount in this reserve; through the government–owned purchases more than 98 percent of its
however, if the Court rules in favor of National Mineral Development high–grade iron ore from NMDC, and
Essar, the amount in the reserve account Corporation (NMDC), provided high– the remainder from a mine run by the
will be returned. See the January 3, grade iron ore to Essar for less than State of Orissa. See Essar Verification
2006, Memorandum to Eric B. adequate remuneration. On July 19, Report at page 19. Moreover, the record
Greynolds, Program Manager, AD/CVD 2005, the Department initiated an contains no information on actual
Operations, Office 3, from Tipten Troidl investigation into whether Essar transaction prices between private
and Preeti Tolani, Case Analysts, received a direct subsidy from the GOI parties in India. Additionally, a review
Regarding: Countervailing Duty when purchasing iron ore from the of GOI import statistics demonstrates
Administrative Review of Certain Hot– NMDC. See New Subsidy Allegation that there is no distinction in iron ore
Rolled Carbon Steel Flat Products from Memorandum. imports based on grade so we have no
India: Verification of the Questionnaire Essar reported that it purchased high– basis to determine whether import
Responses Submitted by Essar Steel Ltd. grade iron ore (i.e., iron ore with Fe statistics reflect prices associated with
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(Essar Verification Report), at page 11. content of 64 percent or above) from the imports of high–grade iron ore.
However, Essar was not able to submit NMDC during the POR. In accordance Therefore, the Department preliminarily
any documentation to support this with section 771(5) of the Act, to find determines that there is no record
claim. Absent any such documentation, a countervailable subsidy, the information regarding actual
we were unable to verify this claim. Department must determine that a transactions between private parties that

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Federal Register / Vol. 71, No. 6 / Tuesday, January 10, 2006 / Notices 1517

could be used as an ‘‘in–country’’ that would be available to Essar in (2) have realized the payment of export
benchmark to compare against Essar’s accordance with 19 CFR proceeds in the form of convertible
purchases from NMDC. Thus, the 351.511(a)(2)(ii). foreign currency. See GOI Verification
Department is unable to measure the To measure the adequacy of Report at 10; see also the GOI’s July 11,
adequacy of remuneration using actual remuneration, we compared the price 2005, submission at page 70, Annexure
market–determined prices in India, as that Essar actually paid for its high– 6. The application must be filed within
directed by 19 CFR 351.511(a)(2)(i). grade iron ore to an average of the prices six months of the realization of the
Under 19 CFR 351.511(a)(2)(ii), where of high–grade iron ore set forth in the profits. DFRC licenses are transferrable,
actual market–determined prices are not Tex Reports. We made the following yet the transferee is limited to importing
available with which to make the adjustments to the benchmark only those products and in the
comparison under paragraph (a)(2)(i), information: We converted the iron ore
the Department will seek to measure the quantities specified on the license. Id.
lumps and fines’ prices listed in U.S.
adequacy of remuneration by comparing cents per dry long ton to U.S. dollars. Essar exported merchandise during
the government price to a world market We multiplied the per unit U.S. dollar the POR for which it applied for a DFRC
price where it is reasonable to conclude price by 64 (iron ore is priced by one license. However, it did not receive its
that such prices would be available to unit of Fe content) to calculate a U.S. DFRC license until after the POR.
purchasers in the country in question. dollar high–grade iron ore amount. We Although 19 CFR 351.519(b)(2) provides
This second tier directs the Department then converted the dry long ton to a wet that the Secretary will normally
to examine prices which it would be long ton. We applied the conversion consider any benefit from a duty
reasonable to conclude that purchasers from dry long ton to wet long ton for drawback or exemption program as
could obtain in India. Information on those purchases that were already listed having been received as of the date of
the record indicates that there are prices in U.S. dollars with an Fe content of 64. exportation, we preliminary find that an
from the world market for comparable We then applied the average exchange exception to this normal practice is
goods which can be used as a rate for 2004 to calculate a Rupee per warranted here in view of the unique
benchmark to determine whether the metric ton price for high–grade iron ore. manner in which this program operates.
GOI provides high–grade iron ore to We then averaged all of the prices to
Essar for less than adequate Specifically, a company may not submit
arrive at the benchmark used to an application for a DFRC license until
remuneration. During verification, compare against Essar’s purchases of
NMDC and MMTC3 officials provided the proceeds of the sale are realized.
high–grade iron ore. The license, once granted, specifies the
copies of the Tex Report. The Tex To calculate the benefit, we compared
Report is a daily Japanese publication quantity of the particular inputs that the
Essar’s monthly prices for iron ore to the
that reports on world–wide price benchmark rate, and multiplied this bearer may then subsequently import
negotiations for iron ore.4 The officials price differential by the quantity that duty free.
explained that annual negotiations Essar purchased from NMDC. We then In HRC First Review Final, we noted
occur between steel makers and iron ore divided this amount by Essar’s total that the benefits from another duty
suppliers, either in Japan or in other sales for 2004. We preliminarily exemption program, the Duty
countries (including European calculated a rate of 0.65 percent ad Entitlement Passbook Scheme, were
countries). During these negotiations, valorem. conferred as of the date of exportation
the participating parties agree on a of the shipment because it is at that
percentage change (either up or down) Program Preliminarily Determined Not
To Be Used point that ‘‘the amount of the benefit is
from the base price. See GOI
Verification Report at page 6. The known by the exporter.’’ See HRC First
1. Duty Free Replenishment Certificate Review Decision Memo at page 6.
February 16, 2004, edition of the Tex (DFRC)
Report reported that several Japanese However, in the case of the DFRC, the
integrated steelmakers had concluded The DFRC scheme was introduced by company does not know at the time of
negotiations with an Indian mission the GOI in 2001 and is administered by export the value of the duty exemption
including MMTC, Kudremukh Iron Ore the Director–General for Foreign Trade that it will ultimately receive; it merely
(KIOCL), and officials of the Indian (DGFT). The DFRC is a duty knows the quantity of the inputs it will
government regarding prices for iron replenishment scheme that is available likely be able to import duty free if its
ore, including high–grade iron ore. The to exporters for the import of inputs application for a DFRC license is
price for this iron ore is quoted on an used in the manufacture of goods granted. Unlike the Duty Entitlement
FOB Indian port basis. In addition, the without payment of basic customs duty. Passbook Scheme, under the DFRC
February 24, 2005, edition of the Tex The DFRC differs from other duty program the respondent will only know
Report reported that several Japanese exemption schemes previously the total value of the duty exemption
steelmakers had concluded talks with reviewed by the Department to the when it subsequently uses that license
an Australian company for high–grade extent that the exemption is earned on to import the specified products duty
iron ore. This publication includes the specified exports and is applicable to free.
prices for high–grade iron ore that were future imports. In order to receive a
license, which entitles the recipient to Accordingly, we preliminarily
set for 2004. Based upon this
information, we preliminarily determine import duty free certain inputs used in determine that any benefit from the
that the prices reported in the Tex the production of the exported product, DFRC program would be received as of
Report constitute world market prices as identified in a Standard Input/Output the date of the exemption of payment of
Norm (SION), within the following 24 duties. In this case, the benefit would
3 MMTC was formally called Minerals & Metals months, a company must: (1) export not be received until Essar began to
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Trading Corporation. manufactured products listed in the import inputs and claim the exemption.
4 Copies of several issues of the Tex Report
GOI’s export policy book and against Because Essar did not receive the
reporting on negotiated iron ore prices with license for the POR export until 2005,
Australian, Brazilian iron ore producers and
which there is a SION for inputs
Japanese and European steel makers are provided required in the manufacture of the we preliminarily determine that this
as an exhibit E-15 of the Essar Verification Report. export product based on quantity; and program was not used during this POR.

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1518 Federal Register / Vol. 71, No. 6 / Tuesday, January 10, 2006 / Notices

2. Pre–shipment Export Financing Duty Administrative Review: Stainless cell and given that the private lenders
3. Duty Entitlement Passbook (DEPS) Steel Sheet and Strip in Coils from the freely agreed to be a part of Essar’s CDR
Republic of Korea, 69 FR 2113 (January restructuring package, we preliminarily
4. Target Plus Scheme 14, 2004), and Accompanying Issues find that Essar’s loans from private
5. Advance Licenses and Decision Memorandum at Comment lenders that were included as part of
4 (where the Department found that Essar’s restructuring package serve as a
6. Tax Incentives from the State KAMCO’s debt forgiveness to Sammi comparable commercial benchmark for
Government of Maharashtra (SGOM) was not specific or preferential as it was evaluating the concurrently restructured
Programs Preliminary Found Not To Be similar to debt forgiveness to other loans from the GOI–owned/controlled
Countervailable companies in court receivership where lenders.5 Exhibit 2 of Essar’s July 20,
KAMCO was the lead creditor) and 2005, submission provides a list of
1. Corporate Debt Restructuring Final Affirmative Countervailing Duty Essar’s restructured loans from both
On August 23, 2001, and February 5, Determination and Negative Critical private and GOI–owned/controlled
2003, the RBI and the government bank Circumstances Determination: Carbon banks and demonstrates that Essar’s
of India set forth guidelines for and Certain Alloy Seel Wire Rod from loans from private and government
corporations and their creditors to Germany, 67 FR 55808 (August 30, banks were restructured on the same
follow during the course of a corporate 2002), and Accompanying Issues and terms, including at the same interest
debt restructuring (‘‘CDR’’). See the Decision Memorandum at 24–25 (where rates. Further, a review of Essar’s
GOI’s July 11, 2005, submission at page the Department found that Saarstahl and approved restructuring package and
40, Annexure 2. The CDR mechanism its creditors followed established amendments to that approved
has a set of guidelines that all procedures and that there was no restructuring package further
companies must follow. See GOI’s evidence indicating that the German demonstrates that there was no
Verification Report at page 2. government acted in a manner that distinction in the treatment of debt from
The organization of the CDR caused the terms of Saarstahl’s private and government banks. The
mechanism has three levels: the CDR bankruptcy/restructuring proceedings to GOI–owned/controlled banks, which
Core Group, the Empowered Group and be unduly favorable to the company). held a minority share of Essar’s debt,
the CDR Cell. See id; see also HRC First In the prior administrative review of agreed to the same terms and conditions
Review Prelim at 913. The Core Group this order, the Department found that set by the company’s private creditors.
is responsible for overseeing the CDR as the RBI and a group of lenders Therefore, we preliminarily determine
a whole, while the Empowered Group is introduced the CDR Mechanism to that this program is not countervailable
responsible for making the decision on restructure corporations’ debt in August as Essar did not receive any benefit from
the restructuring packages. The CDR 2001. See HRC First Review Prelim at any GOI–provided financial
Cell works with the company and 913. The Inter–Creditor Agreement contribution.
oversees the restructuring package. Id. (ICA) was signed in February 2002 to
The CDR cell is comprised of the deal with the increasing amount of non– Preliminary Results of Review
company’s main lenders and it oversees performing assets that banks were In accordance with 19 CFR
the actual restructuring of the company. holding. The RBI and the CDR Standing 351.221(b)(4)(i), we calculated a subsidy
Id. Forum, which consisted of members rate for Essar subject to this
Essar was one such company that, at from various banks in India, reviewed administrative review, for 2004. We
the determination of its creditors, other countries’ restructuring programs preliminarily determine the total
participated in such a restructuring and ultimately based the CDR estimated net countervailable subsidy
program. Essar’s restructuring involved framework on the London Approach. rate is 3.52 percent ad valorem for 2004.
debt from private lenders as well as The CDR is a non–statutory and If the final results of this review
from lending institutions owned/ voluntary organization whose members remain the same as these preliminary
controlled by the GOI. In the HRC First are bound by the ICA. Lender results, the Department intends to
Review Final we determined that Essar participation in the CDR is voluntary. instruct CBP, within 15 days of
did not use the CDR program during the However, when a restructuring package publication, to liquidate shipments of
POR. See HRC First Review Final and is accepted by at least 75 percent of the certain hot–rolled carbon steel flat
HRC First Review Decision Memo at lenders, the remaining 25 percent must products from India entered, or
Corporate Debt Restructuring (CDR) either comply with the terms of the withdrawn from warehouse, for
page 7. Specifically, in the HRC First agreement, or, if they decide to opt out, consumption from January 1, 2004,
Review Prelim, we found that the they may take a payout at a discounted through December 31, 2004 at 3.52
restructuring plan for Essar did not take rate. Id. percent ad valorem of the f.o.b. invoice
effect until after the POR. See HRC First We preliminarily determine that Essar price on all shipments of the subject
Review Prelim. Essar’s debt did not receive a benefit from any merchandise from Essar. Also, the rate
restructuring was in effect and covered government–provided financial of cash deposits of estimated
debt outstanding during the period of contribution during the course of its countervailing duties will be set at 3.52
the current review. restructuring. Record evidence indicates
The Department does not that Essar and its creditors followed the 5 As it is the Department’s practice to treat any
automatically find reorganizations, existing framework and guidelines of material change to an outstanding loan as a new
workout programs or bankruptcy the CDR and that Essar’s participation in loan, the restructured loans from GOI-owned/
proceedings to be countervailable. the restructuring program was made at controlled banks can be considered to be
contemporaneous with the private-lender loans. See
Rather, the Department must find that the behest of its secured creditors. There e.g., Final Affirmative Countervailing Duty
the program is not generally available in is no evidence of government influence Determinations: Certain Cut-to-Length Carbon Steel
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the country or, if it is generally available over the decision making ability of the Plate from Mexico, 69 FR 1972 (January 13, 2004),
in the country in question, that it is CDR cell, and/or any private lenders. and Accompanying Issues and Decision
Memorandum at Comment 4; Final Affirmative
provided in a manner that is In view of the fact that there is no Countervailing Duty Determinations: Stainless Steel
inconsistent with typical practice. See evidence of government influence over Plate in Coils from Italy, 64 FR 15508, 15516 (March
e.g., Final Results of Countervailing the decision making ability of the CDR 31, 1999).

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Federal Register / Vol. 71, No. 6 / Tuesday, January 10, 2006 / Notices 1519

percent ad valorem for all shipments of Public Comment DEPARTMENT OF COMMERCE


certain hot–rolled carbon steel flat
products made by Essar from India Pursuant to 19 CFR 351.224(b), the National Oceanic and Atmospheric
entered, or withdrawn from warehouse, Department will disclose to parties to Administration
for consumption on or after the the proceeding any calculations
[I.D. 092705C]
publication of the final results of this performed in connection with these
administrative review. The Department preliminary results within five days Fisheries of the Caribbean, Gulf of
will issue appropriate instructions after the date of the public Mexico, and South Atlantic;
directly to CBP within 15 days of the announcement of this notice. Pursuant Amendments 14 and 15 to the Fishery
final results of this review. to 19 CFR 351.309, interested parties Management Plan for the Shrimp
Because the Uruguay Round may submit written comments in Fishery of the Gulf of Mexico and
Agreements Act (URAA) replaced the response to these preliminary results. Amendments 27 and 28 to the Fishery
general rule in favor of a country–wide Unless otherwise indicated by the Management Plan for the Reef Fish
rate with a general rule in favor of Department, case briefs must be Resources of the Gulf of Mexico;
individual rates for investigated and submitted within 30 days after the date Scoping Meetings
reviewed companies, the procedures for of publication of this notice, and
AGENCY: National Marine Fisheries
establishing countervailing duty rates, rebuttal briefs, limited to arguments
Service (NMFS), National Oceanic and
including those for non–reviewed raised in case briefs, must be submitted
Atmospheric Administration (NOAA),
companies, are now essentially the same no later than five days after the time
Commerce.
as those in antidumping cases, except as limit for filing case briefs, unless
ACTION: Notice; intent to prepare draft
provided for in section 777A(e)(2)(B) of otherwise specified by the Department.
supplemental environmental impact
the Act. A requested review will Parties who submit argument in this
statements (DSEISs), scoping meetings,
normally cover only those companies proceeding are requested to submit with
request for comments.
specifically named. See 19 CFR the argument: (1) a statement of the
351.213(b). Pursuant to 19 CFR issue, and (2) a brief summary of the SUMMARY: The Gulf of Mexico Fishery
351.212(c), for all companies for which argument. Parties submitting case and/ Management Council (Council)
a review was not requested, duties must or rebuttal briefs are requested to previously published a notice of intent
be assessed at the cash deposit rate, and provide the Department copies of the in the Federal Register (70 FR 57859,
cash deposits must continue to be public version on disk. Case and October 5, 2005) to prepare a DSEIS for
collected at the rate previously ordered. rebuttal briefs must be served on a joint Amendment 14 to the Fishery
As such, the countervailing duty cash interested parties in accordance with 19 Management Plan (FMP) for the Shrimp
deposit rate applicable to a company CFR 351.303(f). Also, pursuant to 19 Fishery of the Gulf of Mexico (Shrimp
can no longer change, except pursuant CFR 351.310, within 30 days of the date FMP) and Amendment 27 to the FMP
to a request for a review of that of publication of this notice, interested for the Reef Fish Resources of the Gulf
company. See Federal–Mogul parties may request a public hearing on of Mexico (Reef Fish FMP). This notice
Corporation and The Torrington arguments to be raised in the case and supplements the previous notice and
Company v. United States, 822 F. Supp. rebuttal briefs. Unless the Secretary provides notice of the Council’s intent
782 (CIT 1993) and Floral Trade Council specifies otherwise, the hearing, if to prepare a second DSEIS for a
v. United States, 822 F. Supp. 766 (CIT requested, will be held two days after subsequent joint Amendment 15 to the
1993) (interpreting 19 CFR 353.22(e), the date for submission of rebuttal Shrimp FMP and Amendment 28 to the
the pre–URAA antidumping regulation briefs, that is, 37 days after the date of Reef Fish FMP. The alternatives in the
on automatic assessment, which was publication of these preliminary results. two joint amendments will consider
identical to 19 CFR 355.22(g)). measures to reduce red snapper fishing
Therefore, the cash deposit rates for all Representatives of parties to the mortality and bycatch in the shrimp and
companies except those covered by this proceeding may request disclosure of reef fish fisheries, and to achieve
review will be unchanged by the results proprietary information under optimum yield (OY) in the shrimp
of this review. administrative protective order no later fishery. The purpose of this notice of
than 10 days after the representative’s intent is to solicit public comments on
We will instruct CBP to continue to
client or employer becomes a party to the scope of issues to be addressed in
collect cash deposits for non–reviewed
the proceeding, but in no event later the DSEISs.
companies at the most recent company–
specific or country–wide rate applicable than the date the case briefs, under 19
DATES: Written comments must be
to the company. Accordingly, the cash CFR 351.309(c)(ii), are due. The
received by February 9, 2006.
deposit rates that will be applied to Department will publish the final The meetings will be held in January
non–reviewed companies covered by results of this administrative review, 2006. See SUPPLEMENTARY INFORMATION
this order are those established in the including the results of its analysis of for specific dates and times.
most recently completed administrative arguments made in any case or rebuttal
ADDRESSES: Written comments on the
proceeding conducted under the URAA. briefs.
scope of the DSEISs, and requests for
See HRC Amended Final Determination, This administrative review is issued additional information on the joint
66 FR 60200. These rates shall apply to and published in accordance with amendments, should be sent to the Gulf
all non–reviewed companies until a sections 751(a)(1) and 777(i)(1) of the of Mexico Fishery Management Council,
review of a company assigned these Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 2203 North Lois Avenue, Suite 1100,
rates is requested. In addition, for the 677f(I)(1)). Tampa, FL 33607; phone: 813–348–
period April 20, 2001, through Dated: January 3, 2006. 1630; fax: 813–348–1711. Comments
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December 31, 2002, the assessment rates may also be sent by e-mail to:
David M. Spooner,
applicable to all non–reviewed rick.leard@gulfcouncil.org.
companies covered by this order are the Assistant Secretaryfor Import Administration. The locations of all scoping meetings
cash deposit rates in effect at the time [FR Doc. E6–105 Filed 1–9–06; 8:45 am] are provided under the SUPPLEMENTARY
of entry. BILLING CODE 3510–DS–S INFORMATION section of this notice.

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