The business meeting January 9, 2003 begins at 9 a.m., at the Lassen National Forest Headquarters Office, Caribou Conference Room, 2550 Riverside Drive, Susanville, CA 96130. Agenda topics will include: Review previous meeting minutes and approve, RAC member/subcommittee reports, Proxy votes and absent voting members/Quorum, Overhead Discussion and Decision, Review Sierra RAC Rating Method, and Funding Multiple Year Projects. Time will also be set aside for public comments at the end of the meeting.

The Council on Environmental Quality (CEQ) regulations at 40 CFR 1507.3 provide that agencies may, after notice and comment, adopt categories of actions that do not have significant impacts on the human environment and, consequently, do not require preparation of an environmental assessment or an environmental impact statement. The agency's first timber harvest related categorical exclusion, published in 1981, broadly identified actions of limited size or magnitude. Since 1981, the agency's categorical exclusion concerning small timber harvest activities has been revised several times to better define the category and to add size or volume limits. The agency's most recent revision to the timber harvest-related category occurred in 1992, when the category's limits of 100,000 board feet or 10 acres, were expanded to allow harvest of green timber up to 250,000 board feet and salvage harvest of up to 1 million board feet (57 FR 43180; September 18, 1992). This 1992 revision also allowed up to one mile of low-standard road construction.

Current Forest Service procedures for complying with and implementing the National Environmental Policy Act (NEPA) are set out in Forest Service Handbook (FSH) 1909.15. Chapter 30 of FSH 1909.15 establishes two types of categorical exclusions. The first, set out at section 31.1, consists of categories of actions that are so routine and limited that a record is not required. The second type, set out at section 31.2, consists of categories of routine actions that require documentation in a Decision Memo of the rationale for not preparing an environmental assessment or an environmental impact statement. The agency is proposing three new categorical exclusions that would fall within this second type of categorical exclusion that requires a Decision Memo.

On September 18, 1998, a lawsuit was filed against the Forest Service arguing that the 1992 categorical exclusions were improperly promulgated. On September 28, 1999, the United States District Court for the Southern District of Illinois found that the categorical exclusions were properly promulgated. However, the court found insufficient evidence in the record to support the agency's decision to set the volume limits in Categorical Exclusion 4 at 250,000 board feet of merchantable wood products for timber harvest and 1 million board feet of merchantable wood products for salvage. Accordingly, the court declared Categorical Exclusion 4 in section 31.2 of Chapter 30 FSH 1909.15 null and void and enjoined the agency from its further use.

In an October 1, 1999, letter, the Associate Chief for Natural Resources notified the Regional Foresters of the court's injunction and instructed them to refrain from further use of Categorical Exclusion 4. The agency has recently issued Interim Directive No. 1909.15-2002-1 to formally notify employees to discontinue use of Categorical Exclusion 4 in Forest Service Handbook 1909.15, Environmental Policy and Procedures.

Most timber harvest projects that were originally excluded under Categorical Exclusion 4 were subsequently reconsidered, analyzed, and documented in environmental assessments. However, field offices reported that the level of documentation and analysis required for these environmental assessments forced agency personnel to extend timeframes and expend undue energy and funding in order to complete minor harvesting projects.

In response to field concerns during the fall of 2001, the Associate Deputy Chief for the National Forest System requested field units to monitor selected timber harvests that would have qualified under former Categorical Exclusion 4. In response, field units collected data on 154 randomly selected timber harvests. The review's objective was to determine if these harvests did or did not have significant effects on the human environment. The review concluded that none of the 154 projects had a significant effect on the human environment.

Based on this review and the agency's extensive experience with small timber harvest projects, the Forest Service proposes to add three new categorical exclusions to its Environmental Policy and Procedures Handbook (FSH 1909.15). These categories would appear in section 31.2, Categories of Actions for Which a Project or Case File and Decision Memo Are Required, and would provide specific, narrow categorical exclusions for limited timber harvest. For each of the proposed categories, examples of potential actions that fit the category are provided. These examples are intended to be illustrative only and are not intended to be either constraining or all-inclusive.

It is important to note that the proposed categorical exclusions are not intended to replace the former Categorical Exclusion 4. They are limited by size and are more specific about the types of harvest methods, when compared to the agency's former Categorical Exclusion 4. The proposed categorical exclusions are, therefore, much more limited in scope than the former Categorical Exclusion 4.

The first new proposed categorical exclusion (Categorical Exclusion 10) would allow harvest of live trees not to exceed 50 acres with no more than 1/2 mile of temporary road construction. This category could not be used for even-aged regeneration harvest or vegetation type conversion. Even-aged regeneration harvests generally remove most of an existing stand of trees. An example would be the seed tree method of cutting where all trees in a stand are removed except for a few dominant seed-producing trees. Vegetation type conversion is designed to change existing vegetative cover to another, such as converting a timber stand to an open field. Proposed Categorical Exclusion 10 would not include these types of treatments. This category would allow incidental removal of trees for temporary roads, landings, and skid trails. It would allow low-impact silvicultural treatments by timber purchasers.

Examples of projects that could be implemented under proposed Categorical Exclusion 10 are removal of individual trees to reduce fuels adjacent to a residential area and removal of scattered trees to improve the health and vigor of a remaining stand.

The next category that the agency proposes (Categorical Exclusion 11) would allow salvage of dead and/or dying trees not to exceed 250 acres with no more than 1/2 mile of temporary road construction. This categorical exclusion would permit salvage harvest in areas where trees have been severly damaged by forces such as fire, wind, ice, insects, or disease and still have some economic value as a forest product.

Categorical Exclusion 11 would be limited to salvage of dead and dying trees by timber purchasers and may also allow incidental removal of green trees for temporary roads, landings, and skid trails.

The final new category (Categorical Exclusion 12) proposed by the Forest Service would allow removal of any trees necessary to control the spread of insects and disease on no more than 250 acres with no more than 1/2 mile of temporary road construction. This category allows the agency to apply harvest methods to control insects and disease before they spread to adjacent healthy trees. This category may allow incidental removal of green trees for temporary roads, landings, and skid trails.

In all three proposed categories, trees could be sold as sawlogs, fuelwood, or specialty products.

The scope of the proposed new categories is consistent with the scope of the 154 projects examined in the 2001 review, each of which had no significant environmental effects. Consequently, the level of effects associated with these proposed new categories would also be below the level of significant environmental effects. Green tree harvests monitored in the 2001 review averaged 70 acres in size while sanitation and salvage harvests averaged 253 acres in size. Having reconsidered the basis for establishing categorical exclusions for small timber harvests, the Forest Service now believes that acreage is a more useful measure of project magnitude than timber volume. Acreage is easily delineated and quantified when developing a proposal, while estimating timber volume within a given acreage may vary considerably based on statistical samples, merchantability standards, and condition of the timber.

With regard to road construction that would fall within these new categorical exclusions, it is important to note that only temporary road construction would be permitted. As defined in Forest Service Manual 7705, temporary roads are not intended to be a part of the forest transportation system and are not necessary for long-term resource management. The Forest Service anticipates that only a small percentage of projects would require any temporary road construction. The 2001 review data indicates that for each project that would have qualified under Categorical Exclusion 4 an average of 1/2 mile of temporary road was built. Therefore, the agency has selected 1/2 mile as the upper limit of temporary road construction.

These categorical exclusions will not apply where there are extraordinary circumstances, such as adverse effects on threatened and endangered species or their designated critical habitat, wilderness areas, inventoried roadless areas, wetlands, and archeological or historic sites.

It is important to note that categorical exclusions do not absolve Responsible Officials from scoping. The CEQ regulations at 40 CFR 1501.7 define scoping as a process for determining the scope of issues to be addressed and for identifying significant issues to be documented in an environmental impact statement. The Forest Service conducts scoping on all proposed actions, including those covered by categorical exclusions. Guidance to Forest Service employees on scoping is set out in Chapter 10 of FSH 1909.15. As provided in Chapter 10, part of scoping may involve inviting participation from interested and affected agencies and citizens. Furthermore, FSH 1909.15, section 11 states that in determining whether a proposed action can be categorically excluded, the Responsible Official must consider the following: (1) The nature of the proposal; (2) preliminary issues; (3) interested and affected agencies, organizations, and individuals, and; (4) the extent of existing documentation.

Categorical exclusions also do not absolve the Responsible Official from conducting appropriate consultations with Federal and State regulatory agencies such as those required by the Endangered Species Act and the National Historic Preservation Act.

One important consideration in the development of any category for limited timber harvest is cumulative effects. The CEQ regulations state that categorically excluded actions must not individually or cumulatively have a significant effect on the human environment (40 CFR 1508.4). The agency's 2001 review of 154 small timber harvests did not show any instance where projects similar in scope and limits to the three categories proposed in this notice resulted in significant cumulative effects on the human environment.

The quantity and geographic extent of actions that might be implemented under these three proposed categorical exclusions are not anticipated to change much from historic levels. Slightly over 300 projects were implemented using Categorical Exclusion 4 in 1998, the last year it was in effect. These projects involved approximately 8,200 acres of green tree harvest and approximately 41,100 acres of salvage, representing less than .03% of the 192 million acres of National Forest System lands on the continental United States and Alaska.

It is also important to note that any timber harvest performed using the proposed categorical exclusions must meet all applicable Federal, State, and local laws, as well as land and resource management plan standards and guidelines. It is the combination of these standards and guidelines, the limited scope of the proposed categorical exclusions, the results of the 2001 review, and the agency's long experience dealing with low-impact silvicultural treatments that leads the agency to conclude that implementation of the proposed categories would not result in cumulatively significant effects on the human environment.

While some small fuel reduction projects may fit the proposed categorical exclusions, most fuel reduction projects applying the principles of the National Fire Plan will be larger in scope, both in size and types of activities than would be allowed under the proposed categories. Similarly, most projects implementing the National Fire Plan involve a combination of activities such as thinning, pruning, and prescribed burning, which would take them beyond the scope of these proposed categorical exclusions.

The agency's categorical exclusions for small timber harvest projects have evolved since 1981 when the Forest Service NEPA procedures in FSH 1909.15, chapter 30, first provided for categorical exclusion of actions of limited size or magnitude, which included some timber sales. A categorical exclusion was added to chapter 30 in the 1985 review of NEPA procedures to provide for “[l]ow-impact silvicultural activities that are limited in size and duration and that primarily use existing roads and facilities, such as firewood sales, salvage, thinning, and small harvest cuts * * * ” From 1987 through 1992, the agency conducted small timber harvest projects through a categorical exclusion which allowed salvage, thinning, and harvest cuts to less than 100,000 board feet or less than 10 acres. As previously noted, in 1992, a revised category (Categorical Exclusion 4) was established, allowing up to 1 million board feet of salvage and 250,000 board feet of merchantable wood products.

In 1993, the Forest Service issued regulations at 36 CFR part 215 (58 FR 58910) which stated that, with the exception of Categorical Exclusion 4, all other categorically excluded actions are not subject to notice, comment, and administrative appeal. The agency believed that public interest in timber harvest activities of the magnitude allowed under Categorical Exclusion 4 warranted providing opportunities for administrative appeal. Because of their limited scope, activities subject to the remaining categorical exclusions were not made appealable under 36 CFR part 215.

The categorical exclusions being proposed in this notice are limited by size and the type of activity allowed. Additionally, a review of timber harvests categorically excluded in 1998 shows that 15% of these projects were appealed. Six percent of the projects that were appealed (one percent of the total number of projects) were sent back to the Responsible Official for additional analysis and documentation. Consequently, the agency concludes that timber sales within the limits of Categorical Exclusion 4 are not as controversial as originally contemplated during promulgation of the agency's appeal regulations at 36 CFR part 215. Therefore, the proposed new categorical exclusions would fall under 36 CFR 215.8, Decisions Not Subject to Appeal, paragraph (a)(4).

Based upon an analysis of field data, the agency proposes three new categorical exclusions for limited timber harvest. Actions identified in the proposed categories are limited in scope, would not have significant impacts on the human environment, and would not require preparation of an environmental assessment or an environmental impact statement.

These categorical exclusions would permit timely response to small timber harvest requests and to forest health problems involving small areas of National Forest System land. Additionally, they would conserve limited agency funds.

These proposed categorical exclusions would be implemented through the issuance of an interim directive to FSH 1909.15, Environmental Policy and Procedures Handbook, Chapter 30. Although an interim directive (ID) expires in 18 months from its issue date, the establishment of these three new categorical exclusions is intended to be a permanent revision. The agency is issuing an interim directive solely for administrative efficiency. The text of the final interim directive along with other interim directives will be incorporated into a revision of the entire Chapter 30 sometime in the next year or so.

Public comment is invited on this proposal and will be considered in adopting a final policy.

The text of the proposed categorical exclusions is set out at the end of this notice.

These proposed revisions to Forest Service Handbook 1909.15 would add direction to field employees regarding requirements for NEPA documentation. FSH 1909.15, section 31.1b (57 FR 43180) excludes from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions.” The agency's preliminary assessment is that this proposed interim directive falls within this category of actions and that no extraordinary circumstances exist that would require preparation of an environmental impact statement or environmental assessment. A final determination will be made upon adoption of the final interim directive. In addition, pursuant to 40 CFR 1505.1 and 1507.3, the agency is consulting with the Council on Environmental Quality to ensure full compliance with the purposes and provisions of NEPA and the CEQ implementing regulations.

This proposed interim directive has been reviewed under USDA procedures and Executive Order 12866 on Regulatory Planning and Review. The Office of Management and Budget (OMB) has determined that this is a significant regulatory action as defined by Executive Order 12866. Accordingly, OMB has reviewed this proposed interim directive.

The primary economic effects of the proposed categorical exclusions for limited timber harvest are changes in costs of conducting environmental analysis and preparing NEPA documents. The proposed categorical exclusions would reduce agency administrative costs by reducing the analysis and documentation requirements for small timber harvest projects. An analysis of costs and benefits compared the cost of documenting categorical exclusions to that of preparing environmental assessments. Using the number of small timber harvest activities categorically excluded in 1998, the last year such actions could be categorically excluded, savings were averaged over a ten-year period. Based on this approach, the average annual cost savings of the proposed categorical exclusions are estimated to be $6 million compared with continued use of environmental assessments for small timber harvest projects. The application of these Categorical Exclusions would have no quantifiable effect on the government's timber sale receipts.

The analysis of costs and benefits was performed in accordance with the direction in OMB Guidelines to Standardize Measures of Costs and Benefits and the Format of Accounting Statements (Office of Management and Budget Memorandum 00-08).

This proposed interim directive has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), and it has been determined that it would not have a significant economic impact on a substantial number of small entities as defined by the act because it would not impose recordkeeping requirements on them; it would not affect their competitive position in relation to large entities; and it would not affect their cash flow, liquidity, or ability to remain in the market.

The agency believes small businesses in general may benefit from a potential increase in small timber sale opportunities as a result of the proposed interim directive. Although the Forest Service finds this increase difficult to quantify, it believes that more small sales may be prepared when using a categorical exclusion rather than an environmental assessment, resulting in an increase in the number of sales available for small businesses and local mills. The Forest Service assumes that all qualified potential purchasers would, consistent with the rules at 36 CFR part 223 for advertising, awarding, and administering sales, have equal opportunity to accrue benefits from any increase in sale opportunities. Additionally, some of these sales are likely to be set aside for small businesses under the agency's small business timber sale set-aside program.

A civil rights impact analysis was prepared for the proposed interim directive. No adverse effects are identified for groups of people who fall within the scope of Civil Rights legislation or the Executive Order on Environmental Justice (E.O. 12898), although some potential beneficial impacts have been noted.

The agency has considered this proposed interim directive under the requirements of Executive Order 13132 on Federalism and has made an assessment that the proposed interim directive conforms with the federalism principles set out in this Executive order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the agency has determined that no further assessment of federalism implications is necessary at this time.

This proposed interim directive does not have tribal implications as defined by Executive Order 13175 on Consultation and Coordination with Indian Tribal Governments and, therefore, advance consultation with tribes is not required.

This proposed interim directive has been analyzed in accordance with the principles and criteria contained in Executive Order 12630 on Governmental Actions and Interference with Constitutionally Protected Property Rights, and it has been determined that the proposed interim directive does not pose the risk of a taking of Constitutionally protected private property.

This proposed interim directive has been reviewed under Executive Order 13211 on Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. It has been determined that this proposed interim directive does not constitute a significant energy action as defined in the Executive order.

This proposed interim directive does not contain any additional recordkeeping or reporting requirements associated with the timber harvest program or other information collection requirements as defined in 5 CFR part 1320. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and its implementing regulations at 5 CFR part 1320 do not apply.

On April 26, 2002, the petitioner 1 requested an administrative review pursuant to 19 CFR 351.213(b) for 15 exporters, 2 five of which are included in three exporter/producer combinations 3 that received zero rates in the less-than-fair-value (“LTFV”) investigation and thus were excluded from the antidumping duty order only with respect to brake rotors sold through the specified exporter/producer combinations.

On April 30, 2002, the Department received timely requests from Shanxi Fengkun Metallurgical Ltd. Co. (“Shanxi Fengkun”) and Zibo Golden Harvest Machinery Limited Company (“Golden Harvest”) for a new shipper review of this antidumping duty order in accordance with 19 CFR 351.214(c). On this same date, Beijing Concord Auto Technology Inc. (“Beijing Concord”) requested that the Department conduct an administrative review of its exports of subject merchandise for the period April 1, 2001, through March 31, 2002.

On May 7, 2002, both Shanxi Fengkun and Golden Harvest agreed to waive the time limits applicable to the new shipper review and to permit the Department to conduct the new shipper review concurrently with the administrative review.

On May 23, 2002, the Department initiated an administrative review covering the companies listed in the petitioner's April 26, 2002, request, as well as Beijing Concord ( see Initiation or Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part , 67 FR 36148).

On May 24, 2002, the Department initiated a new shipper review of Shanxi Fengkun and Golden Harvest ( see Brake Rotors from the People's Republic of China: Initiation of New Shipper Antidumping Duty Reviews , 67 FR 38642 (June, 5, 2002)).

On June 3, 2002, we issued a questionnaire to each company listed in the above-referenced initiation notices. Also on June 3, 2002, the Department provided the parties an opportunity to submit publicly available information for consideration in these preliminary results.

On June 19, 2002, each of the exporters that received a zero rate in the LTFV investigation stated that during the period of review (“POR”) it did not make U.S. sales of brake rotors produced by companies other than those included in its respective excluded exporter/producer combination.

We received responses to the Department's questionnaire in July and August 2002. We issued supplemental questionnaires in August 2002, and received responses in September, October, and November 2002.

Beijing Concord did not respond to the Department's June 3, 2002, antidumping questionnaire. Consequently, on October 16, 2002, we informed Beijing Concord that since the Department had not received a questionnaire response from it by the deadline granted to it, we would have to resort to facts available in accordance with section 776(b) of the Act ( see “Facts Available” section of this notice below for further discussion).

On October 2, 2002, the Department conducted a data query on brake rotor entries made during the POR from all exporters named in the excluded exporter/producer combinations in order to substantiate their claims that they made no shipments of subject merchandise during the POR. As a result of the data query, the Department requested that the Customs Service confirm the actual manufacturer for 25 specific entries associated with the excluded exporter/producer combinations. On December 31, 2002, the Department issued a memorandum stating that it preliminarily found no evidence that shipments of merchandise subject to the order were made by the five exporters included in the three exporter/producer combinations during the POR. For further discussion, see the section of this notice entitled “Preliminary Partial Rescission of Administrative Review.”

Also in October 2002, we issued verification outlines to Golden Harvest, GREN, and Shanxi Fengkun. We conducted verification of the responses submitted by Golden Harvest, GREN and its U.S. subsidiary, and Shanxi Fengkun during October and November 2002. We issued verification reports in December 2002. ( See December 13, 2002, verification reports for Golden Harvest and Shanxi Fengkun in the Seventh Antidumping Duty New Shipper Review and December 20, 2002, verification report for GREN in the Fifth Antidumping Duty Administrative Review.)

On December 23, 2002, GREN submitted revised U.S. sales and factors of production listings, pursuant to the Department's instructions, reflecting data corrections based on verification findings.

The products covered by this order are brake rotors made of gray cast iron, whether finished, semifinished, or unfinished, ranging in diameter from 8 to 16 inches (20.32 to 40.64 centimeters) and in weight from 8 to 45 pounds (3.63 to 20.41 kilograms). The size parameters (weight and dimension) of the brake rotors limit their use to the following types of motor vehicles: automobiles, all-terrain vehicles, vans and recreational vehicles under “one ton and a half,” and light trucks designated as “one ton and a half.”

Finished brake rotors are those that are ready for sale and installation without any further operations. Semi-finished rotors are those on which the surface is not entirely smooth, and have undergone some drilling. Unfinished rotors are those which have undergone some grinding or turning.

These brake rotors are for motor vehicles, and do not contain in the casting a logo of an original equipment manufacturer (“OEM”) which produces vehicles sold in the United States ( e.g ., General Motors, Ford, Chrysler, Honda, Toyota, Volvo). Brake rotors covered in the order are not certified by OEM producers of vehicles sold in the United States. The scope also includes composite brake rotors that are made of gray cast iron, which contain a steel plate, but otherwise meet the above criteria. Excluded from the scope of the order are brake rotors made of gray cast iron, whether finished, semifinished, or unfinished, with a diameter less than 8 inches or greater than 16 inches (less than 20.32 centimeters or greater than 40.64 centimeters) and a weight less than 8 pounds or greater than 45 pounds (less than 3.63 kilograms or greater than 20.41 kilograms).

Brake rotors are currently classifiable under subheading 8708.39.5010 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of this order is dispositive.

The POR covers the period April 1, 2001, through March 31, 2002.

As provided in section 782(i)(2) of the Act, we verified information provided by GREN, Golden Harvest, and Shanxi Fengkun. We used standard verification procedures, including on-site inspection of the manufacturer's facilities and examination of relevant sales and financial records. Our verification results are outlined in the verification report for each of these companies ( see December 2002 verification reports for Golden Harvest, Shanxi Fengkun and GREN for further discussion).

Pursuant to 19 CFR 351.213(d)(3), we have preliminarily determined that the exporters which are part of the three exporter/producer combinations which received zero rates in the LTFV investigation did not make shipments of subject merchandise to the United States during the POR. Specifically, (1) neither Laizhou CAPCO nor CAIEC exported brake rotors to the United States that were manufactured by producers other than Laizhou CAPCO; ((2) Xinjiang did not export brake rotors to the United States that were manufactured by producers other than Zibo Botai, (3) Shenyang did not export brake rotors to the United Stated that were manufactured by producers other than Shenyang or Laizhou Luyuan, and (4) Laizhou Luyuan did not export brake rotors to the United States that were manufactured by producers other than Laizhou Luyuan or Shenyang.

In order to make this determination, we first examined PRC brake rotor shipment data maintained by the Customs Service. We then selected entries associated with each exporter and requested the Customs Service to provide documentation which would enable the Department to determine who manufactured the brake rotors included in those entries. On December 31, 2002, we placed on the record of this review a memorandum which summarized the data provided by the Customs Service in response to our query. Based on the results of our query, in accordance with 19 CFR 351.213(d)(3), we are preliminarily rescinding the administrative review because we found no evidence that the exporters in question made U.S. shipments of the subject merchandise during the POR. Although we still have not received manufacturer confirmation on some of the entries we selected in our sample, we will continue to pursue this matter with the Customs Service and seek to obtain the necessary data for consideration in our final results.

We issued Beijing Concord the Department's antidumping duty questionnaire on June 3, 2002. Although we provided Beijing Concord with three extensions of time for submitting its questionnaire response, it failed to provide its response by the final extended deadline date of August 9, 2002. As a result of not receiving a questionnaire response from it and in light of its counsel withdrawing its appearance on its behalf ( see letter from counsel dated August 9, 2002), we issued Beijing Concord a letter on August 22, 2002, which informed the company that we assumed that it did not intend to participate in this review. On September 3, and 16, 2002, Beijing Concord stated that it would not be able to participate in this review based on its decision to no longer retain counsel, particularly given its alleged lack of experience with our administrative process. However, in those same letters, Beijing Concord stated that it was willing to respond to the questionnaire if the Department wanted it to do so. In response to the September 3, and 16, 2002, letters submitted by Beijing Concord, we informed the company on October 16, 2002, that the deadline (which had been extended three times pursuant to its request) for submitting a response to the Department's June 3, 2002, antidumping questionnaire had long passed and that we would not be able to provide it with another opportunity to respond to the questionnaire in this review. In addition, we informed Beijing Concord that we would have to apply facts available to it in accordance with section 776(b) of the Act.

Under section 782(c) of the Act, a respondent has a responsibility not only to notify the Department if it is unable to provide requested information, but also to provide a “full explanation and suggested alternative forms.” Beijing Concord's September 3, and 16, 2002, letters documented for the record the company's decision not to provide this information in a timely manner and it has otherwise failed to respond to our requests for information, thereby failing to comply with this provision of the statute. Therefore, we determine that Beijing Concord failed to cooperate to the best of its ability, making the use of an adverse inference appropriate. Consequently, Beijing Concord is not eligible to receive a separate rate and continues to be part of the PRC NME entity, subject to the PRC-wide rate.

In this segment of the proceeding, in accordance with Department practice ( see , e.g ., Rescission of Second New Shipper Review and Final Results and Partial Rescission of First Antidumping Duty Administrative Review of Brake Rotors from the People's Republic of China , 64 FR 61581, 61584 (November 12, 1999)), as adverse facts available, we have assigned to exports of the subject merchandise by Beijing Concord the PRC-wide rate of 43.32 percent, a rate that was calculated based on information contained in the petition. The Department's practice when selecting an adverse rate from among the possible sources of information is to ensure that the margin is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce a respondent to provide the Department with complete and accurate information in a timely manner.” See Final Determination of Sales at Less than Fair Value: Static Random Access Memory Semiconductors from Taiwan , 63 FR 8909, 8932, February 23, 1998.

Section 776 of the Act provides that where the Department selects from among the facts otherwise available and relies on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. Secondary information is described in the SAA as “[i]nformation derived from the petition that gave rise to the investigation or review under section 751 concerning the subject merchandise.”

With respect to the relevance aspect of corroboration, the Department stated in Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, from Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews , 61 FR 57391, 57392 (November 6, 1996) (“TRBs”), that it will “consider information reasonably at its disposal as to whether there are circumstances that would render a margin irrelevant. 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 also Fresh Cut Flowers from Mexico; Preliminary Results of Antidumping Duty Administrative Review , 61 FR 6812, 6814 (February 22, 1996) (disregarding the highest margin in the case as best information available because the margin was based on another company's uncharacteristic business expense resulting in an extremely high margin).

We corroborated the petition information in subsequent reviews to the extent that we noted the history of corroboration and found that we had not received any information that warranted revisiting the issue. See Fresh Garlic from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission of Administrative Review , 65 FR 48464 (August 8, 2000). Similarly, no information has been presented in the current review that calls into question the reliability or the relevance of the information contained in the petition. We thus find that the information is reliable; therefore, we have applied, as adverse facts available, the PRC-wide rate from prior administrative reviews of this order and have satisfied the corroboration requirements under section 776(c) of the Act. See Persulfates from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review , 66 FR 18439, 18441 (April 9, 2001) (employing a petition rate used as adverse facts available in a previous segment as the adverse facts available in the current review). We have determined that this rate has probative value and, therefore, is an appropriate rate to be applied in this review to exports of subject merchandise by Beijing Concord as facts otherwise available.

In proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty deposit rate ( i.e ., a PRC-wide rate).

Of the 12 respondents that submitted questionnaire responses, three of the PRC companies ( i.e ., Hongfa, Meita, and Winhere) are wholly foreign-owned. Thus, for these three companies, because we have no evidence indicating that they are under the control of the PRC government, a separate rates analysis is not necessary to determine whether they are independent from government control ( see Notice of Final Determination of Sales at Less Than Fair Value: Creatine Monohydrate from the People's Republic of China , 64 FR 71104, 71105 (December 20, 1999); Preliminary Results of First New Shipper Review and First Antidumping Duty Administrative Review: Certain Preserved Mushrooms from the People's Republic of China , 65 FR 66703, 66705 (November 7, 2000); and Notice of Final Determination of Sales at Less Than Fair Value: Bicycles From the People's Republic of China (“Bicycles”) 61 FR 19026 (April 30, 1996)).

The remaining nine respondents ( i.e ., Golden Harvest, Haimeng, Hongda, ZLAP, CNIM, GREN, Huanri General, LABEC and Shanxi Fengkun) are either joint ventures between PRC and foreign companies, collectively-owned enterprises and/or limited liability companies in the PRC. Thus, for these nine respondents, a separate rates analysis is necessary to determine whether the exporters are independent from government control (see Bicycles at 61 FR 56570). To establish whether a firm is sufficiently independent in its export activities from government control to be entitled to a separate rate, the Department utilizes a test arising from the Final Determination of Sales at Less Than Fair Value: Sparklers from the People's Republic of China , 56 FR 20588 (May 6, 1991) (“Sparklers”), and amplified in the Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China , 59 FR 22585 (May 2, 1994) (“ Silicon Carbide ”). Under the separate-rates criteria, the Department assigns separate rates in NME cases only if the respondent can demonstrate the absence of both de jure and de facto governmental control over export activities.

CNIM, Golden Harvest, GREN, Haimeng, Hongda, Huanri General, LABEC, Shanxi Fengkun, and ZLAP have each placed on the administrative record documents to demonstrate absence of de jure control, including the “The Enterprise Legal Person Registration Administrative Regulations,” promulgated on June 3, 1988; the 1990 “Regulation Governing Rural Collectively-Owned Enterprises of PRC;” and the 1994 “Foreign Trade Law of the People's Republic of China.”

As in prior cases, we have analyzed these laws and have found them to establish sufficiently an absence of de jure control of collectively-owned enterprises, joint ventures between PRC and foreign companies, and/or limited liability companies. See , e.g ., Final Determination of Sales at Less than Fair Value: Furfuryl Alcohol from the People's Republic of China (“ Furfuryl Alcohol ”) 60 FR 22544 (May 8, 1995), and Preliminary Determination of Sales at Less Than Fair Value: Certain Partial-Extension Steel Drawer Slides with Rollers from the People's Republic of China , 60 FR 29571 (June 5, 1995). We have no new information in this proceeding which would cause us to reconsider this determination with regard to CNIM, Golden Harvest, GREN, Haimeng, Huanri General, Hongda, LABEC, Shanxi Fengkun, and ZLAP.

As stated in previous cases, there is some evidence that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC. See Silicon Carbide and Furfuryl Alcohol . Therefore, the Department has determined that an analysis of de facto control is critical in determining whether the respondents are, in fact, subject to a degree of governmental control which would preclude the Department from assigning separate rates.

The Department typically considers four factors in evaluating whether each respondent is subject to de facto governmental control of its export functions: (1) whether the export prices are set by, or subject to the approval of, a governmental authority; (2) whether the respondent has authority to negotiate and sign contracts and other agreements; (3) whether the respondent has autonomy from the government in making decisions regarding the selection of management; and (4) whether the respondent retains the proceeds of its export sales and makes independent decisions regarding the disposition of profits or financing of losses ( see Silicon Carbide and Furfuryl Alcohol ).

CNIM, Golden Harvest, GREN, Haimeng, Hongda, Huanri General, LABEC, Shanxi Fengkun, and ZLAP have each asserted the following: (1) it establishes its own export prices; (2) it negotiates contracts without guidance from any governmental entities or organizations; (3) it makes its own personnel decisions; and (4) it retains the proceeds of its export sales, uses profits according to its business needs, and has the authority to sell its assets and to obtain loans. Additionally, each of these companies' questionnaire responses indicates that its pricing during the POR does not suggest coordination among exporters.

In this segment of the proceeding, the Department selected three of the 12 respondents for verification, namely Golden Harvest, GREN, and Shanxi Fengkun. The Department did not select the other nine respondents ( i.e ., CNIM, Haimeng, Hongda, Hongfa, Huanri General, LABEC, Meita, Winhere, and ZLAP) for verification.

For Golden Harvest, GREN, and Shanxi Fengkun, the Department found no evidence at verification of government involvement in any of these companies' business operations. Specifically, Department officials examined sales documents that showed that each of these three respondents negotiated its contracts and set its own sales prices with its customers. In addition, the Department reviewed sales payments, bank statements and accounting documentation that demonstrated that each of these three respondents received payment from its U.S. customers via bank wire transfer, which was deposited into its own bank account without government intervention. Finally, the Department examined internal company memoranda, such as appointment notices and election results, which demonstrated that each of these three companies selected its own management. See pages five through seven of the Department's verification report for Golden Harvest; pages 10 through 12 of the Department's verification report for GREN; and pages six and seven of the Department's verification report for Shanxi Fengkun. This information, taken in its entirety, supports a finding that there is a de facto absence of governmental control of each of these companies' export functions.

With regard to CNIM, Haimeng, Hongda, Huanri General, LABEC, and ZLAP ( i.e ., the other six respondents subject to the separate rates test in this review), the Department elected not to verify these companies' responses in accordance with section 351.307(b)(3). Based on documentation contained in each company's response, the Department also finds that each of these six respondents (1) negotiated its contracts and set its own sales prices with its customers; (2) received payment from its U.S. customers via bank wire transfer, which was deposited into its own bank account without government intervention; (3) retained its profits and, where applicable, arranged its own financing; and (4) selected its own management (see each respondent's questionnaire responses).

Consequently, we have determined that CNIM, Golden Harvest, GREN, Haimeng, Hongda, Huanri General, LABEC, Shanxi Fengkun and ZLAP have each met the criteria for the application of separate rates either through documentation submitted on the record subject to verification or through actual verification. See Notice of Final Determination at Less Than Fair Value: Persulfates from the People's Republic of China , 62 FR 27222 (May 19, 1997).

To determine whether sales of the subject merchandise by CNIM, Golden Harvest, GREN, Haimeng, Huanri General, Hongda, Hongfa, LABEC, Meita, Shanxi Fengkun, Winhere, and ZLAP to the United States were made at prices below normal value (“NV”), we compared each company's export prices to NV, as described in the “Export Price,” “Constructed Export Price,” and “Normal Value” sections of this notice, below.

For 11 of the 12 respondents ( i.e ., CNIM, Golden Harvest, Haimeng, Huanri General, Hongda, Hongfa, LABEC, Meita, Shanxi Fengkun, Winhere, and ZLAP), we used export price methodology in accordance with section 772(a) of the Act because the subject merchandise was first sold prior to importation by the exporter outside the United States directly to an unaffiliated purchaser in the United States, and constructed export price was not otherwise indicated.

We calculated EP based on packed, FOB foreign port prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign inland freight and foreign brokerage and handling charges in the PRC, in accordance with section 772(c) of the Act. Because foreign inland freight and foreign brokerage and handling fees were provided by NME service providers or paid for in an NME currency, we based those charges on surrogate rates from India ( see “Surrogate Country” section below). To value foreign inland trucking charges, we used a November 1999 average truck freight value based on price quotes from Indian trucking companies. Based on our verification findings, we revised the reported distance from Golden Harvest to the port of exportation ( see page 13 of the Golden Harvest verification report). To value foreign brokerage and handling expenses, we relied on public information reported in the 1997-1998 new shipper review of the antidumping duty order on stainless steel wire rod from India.

We calculated EP based on packed, CIF, CFR or FOB foreign port prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for foreign inland freight and foreign brokerage and handling charges in the PRC, marine insurance and international freight, in accordance with section 772(c) of the Act. As all foreign inland freight and foreign brokerage and handling fees were provided by NME service providers or paid for in an NME currency, we valued these services using the Indian surrogate values discussed above. For marine insurance, we used public information that was used in the 2000-2001 administrative review of the antidumping duty order on tapered roller bearings and parts thereof, finished and unfinished, from the People's Republic of China. For international freight ( i.e ., ocean freight and U.S. inland freight expenses from the U.S. port to the warehouse (where applicable)), we used the reported expense because each of these four respondents used market-economy freight carriers and paid for those expenses in a market-economy currency ( see , e.g ., Brake Rotors from the People's Republic of China: Final Results of Antidumping Duty New Shipper Review , 64 FR 9972, 9974 (March 1, 1999)).

For GREN, we calculated constructed export price (“CEP”) in accordance with section 772(b) of the Act. We found that GREN made CEP sales during the POR because the sales were made for the account of GREN by the respondent's subsidiary in the United States to unaffiliated purchasers. We based CEP on packed, delivered or ex-warehouse prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price (gross unit price) for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight and foreign brokerage and handling charges in the PRC, international freight ( i.e ., ocean freight and U.S. inland freight from the U.S. port to the warehouse), marine insurance, U.S. customs duties and fees (including harbor maintenance fees, merchandise processing fees, and brokerage and handling), and U.S. inland freight expenses ( i.e ., freight from the plant to the customer). As all foreign inland freight, foreign brokerage and handling, and marine insurance expenses were provided by NME service providers or paid for in an NME currency, we valued these services using the Indian surrogate values discussed above. For international freight ( i.e ., ocean freight and U.S. inland freight expenses from the U.S. port to the warehouse (where applicable)), we used the reported expense because the respondent used a market-economy freight carrier and paid for those expenses in a market-economy currency.

In accordance with section 772(d)(1) of the Act, we also deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (commissions and credit expenses), and indirect selling expenses (including inventory carrying costs) incurred in the United States. We also made an adjustment for profit in accordance with section 772(d)(3) of the Act.

Background

On September 3, 2002, the Department published the notice of initiation of the sunset reviews of the suspended antidumping duty investigations on cut-to-length carbon steel plate (“CTL Steel Plate”) from the PRC, Russia, and South Africa (67 FR 56268). The Department received Notices of Intent to Participate on behalf of Bethlehem Steel Corporation, United States Steel Corporation, IPSCO Steel Inc., and Nucor Corporation (collectively “domestic interested parties”), within the deadline specified in section 351.218(d)(1)(i) of the Sunset Regulations. The domestic interested parties claimed interested party status under Section 771(9)(C) of the Tariff Act of 1930 (the “Act”), as U.S. manufacturers and producers of a domestic like product. We received complete substantive responses, in the Chinese, Russian, and South African reviews, from the domestic interested parties, within the 30-day deadline specified in the Sunset Regulations under section 351.218(d)(3)(i). Bethlehem Steel Corporation and the United States Steel Corporation have been active participants in the Russian and South African proceedings since the petition was filed. IPSO participated in the original investigation through questionnaire responses to the International Trade Commission. Nucor did not participate in the initial investigation. The domestic interested parties are committed to full participation in this five-year review.

We did not receive a substantive response from any respondent interested party to these proceedings. As a result, pursuant to Section 751(c)(3)(B) of the Tariff Act of 1930, as amended (“the Act”) and 19 CFR 351.218(e)(1)(ii)(C) of the Department's Regulations, the Department conducted expedited, 120-day, reviews of these suspended investigations.

The products covered under the suspension agreements are hot-rolled iron and non-alloy steel universal mill plates ( i.e. , flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm but not exceeding 1250 mm and of a thickness of not less than 4 mm, not in coils and without patterns in relief), of rectangular shape, neither clad, plated nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances; and certain iron and non-alloy steel flat-rolled products not in coils, of rectangular shape, hot-rolled, neither clad, plated, nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances, 4.75 mm or more in thickness and of a width which exceeds 150 mm and measures at least twice the thickness. Included as subject merchandise in this petition are flat-rolled products of nonrectangular cross-section where such cross-section is achieved subsequent to the rolling process ( i.e. , products which have been “worked after rolling”)—for example, products which have been beveled or rounded at the edges. This merchandise is currently classified in the Harmonized Tariff Schedule of the United States (HTS) under item numbers 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7212.50.0000. Excluded from the subject merchandise within the scope of the petition is grade X-70 plate. Although the HTS subheadings are provided for convenience and Customs purposes, our written description of the scope of this investigation is dispositive.

These reviews cover all imports from all manufacturers, producers, and exporters of CTL Steel Plate from the PRC, Russia, and South Africa.

All issues raised in these cases by parties to these sunset reviews are addressed in the “Issues and Decision Memorandum” (“Decision Memo”) from Jeffrey A. May, Director, Office of Policy, Import Administration, to Faryar Shirzad, Assistant Secretary for Import Administration, dated January 2, 2003, which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail were the suspended investigation be terminated. Parties can find a complete discussion of all issues raised in these reviews and the corresponding recommendations in this public memorandum, which is on file in room B-099 of the main Commerce Building.

In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov/frn , under the heading “January 2003.” The paper copy and electronic version of the Decision Memorandum are identical in content.

We determine that termination of the antidumping duty suspension agreement on CTL Steel Plate from the PRC, Russia, and South Africa would be likely to lead to continuation or recurrence of dumping at the following percentage weighted-average margins:

This notice also serves as the only reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305 of the Department's regulations. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

We are issuing and publishing these results and notice in accordance with sections 751(c), 752, and 777(i)(1) of the Act.

On June 29, 1999, the Department published in the Federal Register the antidumping duty order on certain hot-rolled flat-rolled carbon-quality steel flat products from Japan. See Antidumping Duty Order; Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Japan, 64 FR 34778. In response to a timely request from petitioners, Bethlehem Steel Corporation and United States Steel Corporation, filed in accordance with 19 CFR 351.213(b), the Department initiated an administrative review of this antidumping duty order, covering the period of June 1, 2001 through May 31, 2002. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part , 67 FR 48435 (July 24, 2002). The request covered two manufacturers/exporters of the subject merchandise, Kawasaki and Sumitomo. Kawasaki submitted a letter to the Department on September 10, 2002 stating that it did not have any reviewable or reportable U.S. sales, entries, or shipments of subject merchandise during the POR. On October 22, 2002, petitioners withdrew their request for an administrative review with respect to both Kawasaki and Sumitomo.

Pursuant to our regulations, the Department will rescind an administrative review, “if a party that requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” See 19 CFR 351.213(d)(1). This section further provides that the Secretary may extend this time limit if the Secretary decides that it is reasonable to do so. See CFR 351.213(d)(1). In this case, petitioners' withdrawal of their request for review was within the 90-day time limit, and there were no other requests for review. Therefore, the Department is rescinding this administrative review for the period June 1, 2001 through May 31, 2002. The Department will issue appropriate assessment instructions to the U.S. Customs Service. This notice is published in accordance with sections 751(a)(2)(B) and 777(i) of the Act.

Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (“the Act”) by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all references to the Department's regulations are to the provisions codified at 19 C.F.R. Part 351 (2001).

On October 20, 1993, the Department published the final determination in the Federal Register that resulted in the antidumping duty order on certain stainless steel wire rod from India. See Final Determination of Sales at Less Than Fair Value: Certain Stainless Steel Wire Rods From India , 58 FR 54110 (October 20, 1993) (“ Antidumping Duty Order ”). On December 3, 2001, the Department published in the Federal Register a notice of opportunity to request an administrative review of this antidumping duty order. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review , 66 FR 60183, (December 3, 2001) (“ Opportunity to Request Administrative Review ”).

On December 27, 2001, the Viraj Group requested an administrative review of the antidumping duty order on certain stainless steel wire rods from India. See the Viraj Group's December 27, 2001 submission. On December 28, 2001, petitioners requested an administrative review of the antidumping duty order on certain stainless steel wire rods from India for Isibars, Mukand, and Panchmahal. See petitioner's December 28, 2001 submission. In accordance with 19 C.F.R. 351.221(b), we published a notice of initiation of the review of Isibars, Mukand, Panchmahal and the Viraj Group on January 29, 2002. See Initiation of Antidumping and Countervailing Duty Administrative Reviews , 67 FR 4236, (January 29, 2002).

On January 29, 2002, the Department issued a questionnaire to the Viraj Group, Panchmahal, Mukand, and Isibars. The Department initiated a cost of production inquiry and requested that Isibars and the Viraj Group respond to section D of the questionnaire in addition to sections A, B, and C. 1

Isibars, Mukand, and the Viraj Group submitted their Section A questionnaire responses on February 26, 2002. On March 15, and 20, 2002, Panchmahal submitted its Section A questionnaire response in two submissions.

On March 26, 2002, petitioners submitted comments regarding Isibars' Section A questionnaire response. On April 5, 2002, Isibars and Mukand submitted their Sections B and C questionnaire responses. On April 8 and 9, 2002, the Viraj Group submitted its Sections B, C, and D questionnaire responses, respectively. On April 9, 2002, Panchmahal submitted its Sections B and C questionnaire responses. On May 9, 2002, petitioners withdrew their request for an administrative review for Isibars.

On April 23 and 25, 2002, petitioners submitted allegations that Panchmahal and Mukand were selling subject merchandise below their costs of production, respectively. See petitioners April 23, 2002 submission at 2 and April 25, 2002 at 2 . On May 30, 2002, the Department initiated a cost of production inquiry with respect to Mukand, and issued its Section D questionnaire to Mukand. On June 11, 2002, the Department initiated a cost of production inquiry with respect to Panchmahal, and issued its Section D questionnaire to Panchmahal. On June 27, 2002, Mukand submitted its Section D questionnaire response. On August 1, 2002, Panchmahal submitted its Section D questionnaire response.

The Department issued its first Sections A, B, and C supplemental questionnaire to Mukand on July 3, 2002. The Department received a response to this questionnaire on July 17, 2002. The Department issued a second Sections A, B, C and a first Section D supplemental questionnaire to Mukand on August 7, 2002, and received a response to this questionnaire on August 23, 2002, with accompanying exhibits submitted on August 26, 2002. The Department issued its third supplemental questionnaire for Sections A, B, C and D to Mukand on September 9, 2002, and received a response on September 26, 2002. On October 4, 2002, the Department issued its fourth Sections A, B, C and D supplemental questionnaire to Mukand and received a response on October 11, 2002. On October 17, 2002, the Department issued a fifth supplemental questionnaire concerning Sections A and C to Mukand. The Department received a response to this questionnaire on October 21, 2002. The Department issued a sixth supplemental questionnaire concerning Sections B, C, and D on November 26, 2002, to Mukand and received a response to this questionnaire on December 4, 2002. The Department issued a seventh supplemental questionnaire to Mukand concerning Section C on November 26, 2002, and received a response to this questionnaire on December 13, 2002.

The Department issued a Section A supplemental questionnaire to Panchmahal on May 7, 2002. The Department received a response to this questionnaire on May 29 and 30, 2002. The Department issued to Panchmahal a Sections B and C supplemental questionnaire on July 16, 2002, and received a response to this questionnaire on July 29, 2002. The Department issued to Panchmahal a Sections A, B, C, and D supplemental questionnaire on August 27, 2002, and received a response on September 19, 2002, with additional material and exhibits on September 23, 2002. The Department issued to Panchmahal a Section D supplemental questionnaire on September 12, 2002, and received a response on September 23, 2002. The Department issued to Panchmahal a Sections B, C, and D supplemental questionnaire on October 1, 2002, and received a response to this questionnaire on October 18, 2002. The Department issued to Panchmahal a Section D supplemental questionnaire on October 23, 2002, and received a response to this questionnaire on October 25, 2002. The Department issued to Panchmahal a Sections B, C, and D supplemental questionnaire on October 28, 2002, and received a response to this questionnaire on November 5, 2002. The Department issued to Panchmahal a Section D supplemental questionnaire on November 7, 2002, and received a response to this questionnaire on November 12, 2002.

The Department issued its first Sections A, B, C, and D supplemental questionnaire to the Viraj Group on June 12, 2002. The Department received a response to this questionnaire on July 23, 2002. The Department issued a second Sections A, B, C, and D supplemental questionnaire to the Viraj Group on September 13, 2002, and received a response to this questionnaire from the Viraj Group on October 4, 2002, with the accompanying exhibits submitted on October 7, 2002. The Department issued a third supplemental questionnaire to Viraj for Sections B and C on September 20, 2002, in which we asked for a revised database for the home and U.S. markets. The Department received a response to this supplemental questionnaire on October 7, 2002. The Department issued a fourth supplemental questionnaire for Sections A, B, C, and D to the Viraj Group on November 18, 2002. The Department received a response to this questionnaire on December 2, 2002.

On July 9, 2002, due to the reasons set forth in the Extension of Time Limit for the Preliminary Results of Antidumping Administrative Review: Certain Stainless Steel Wire Rod from India , 67 FR 45481, the Department extended the due date for the preliminary results. In accordance with section 751(a)(3)(A) of the Act, the Department extended the due date for the notice of preliminary results 60 days, from the original due date of September 2, 2002, to November 1, 2002. See Extension of Time Limit for the Preliminary Results of Antidumping Administrative Review: Certain Stainless Steel Wire Rod from India , 67 FR 45481 (July 9, 2002).

Additionally, on September 17, 2002, in accordance with section 751(a)(3)(A) of the Act, the Department again extended the due date for the notice of preliminary results an additional 30 days, from the revised due date of November 1, 2002 to December 1, 2002. See Extension of Time Limit for the Preliminary Results of Antidumping Administrative Review: Certain Stainless Steel Wire Rod from India , 67 FR 58585 (September 17, 2002).

Further, on November 13, 2002, in accordance with section 751(a)(3)(A) of the Act, the Department again extended the due date for the notice of preliminary results an additional 30 days, from the revised due date of December 1, 2002 to December 31, 2002. See Stainless Steel Wire Rod from India: Extension of Time Limit of Preliminary Results of Antidumping Duty Administrative Review , 67 FR 68834 (November 13, 2002).

The period of review (“POR”) is December 1, 2000, through November 30, 2001.

The merchandise under review is certain SSWR, which are hot-rolled or hot-rolled annealed and/or pickled rounds, squares, octagons, hexagons or other shapes, in coils. SSWR are made of alloy steels containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements. These products are only manufactured by hot-rolling and are normally sold in coiled form, and are of solid cross section. The majority of SSWR sold in the United States are round in cross-section shape, annealed and pickled. The most common size is 5.5 millimeters in diameter.

The SSWR subject to this review are currently classifiable under subheadings 7221.00.0005, 7221.00.0015, 7221.00.0030, 7221.00.0045, and 7221.00.0075 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under review is dispositive of whether or not the merchandise is covered by the review.

As provided in section 782(i) of the Act, we verified sales and cost information provided by Mukand from October 21 through October 31, 2002, using standard verification procedures, including an examination of relevant sales, cost, financial records, and selection of original documentation containing relevant information. Our verification results are outlined in the public version of the verification report and are on file in the Department's Central Records Unit located in Room B-099 of the main Department of Commerce Building, 14th Street and Constitution Avenue, N.W., Washington, D.C.

Section 351.213(d)(1) of the Department's regulations provides that a party which requests an administrative review may withdraw the request within 90 days after the date of publication of the notice of initiation of the requested administrative review. The Department may extend this deadline if it is reasonable to do so. On May 9, 2002, petitioners withdrew their request for an administrative review of Isibars. Although petitioners withdrew their request for the review after the 90-day period had expired, the Department is rescinding the administrative review of Isibars for the order on SSWR from India for the period December 1, 2000 through November 30, 2001, because the review for this company had not yet progressed beyond a point where it would have been unreasonable to allow the petitioners to withdraw their request for review, no other party requested a review of Isibars, and no party objected; it is therefore reasonable for the Department to rescind the review with respect to Isibars. This action is consistent with the Department's practice. See Frozen Concentrated Orange Juice From Brazil; Final Results and Partial Rescission of Antidumping Duty Administrative Review , 67 FR 40913 (June 14, 2002) and Antifriction Bearings and Parts Thereof From France, Germany, Japan, and the United Kingdom: Partial and Full Rescissions of Antidumping Duty Administrative Reviews , 67 FR 65089 (October 23, 2002) where, pursuant to a request filed after the 90 day deadline, the Department rescinded the review with respect to one respondent because the review of that respondent had not progressed beyond a point where it would have been unreasonable to grant the request for rescission. Therefore, in accordance with 19 C.F.R. 351.213(d)(1) and consistent with the Department's practice, the Department is rescinding the review with respect to Isibars.

In the instant review, despite numerous requests and clarifications from the Department, Panchmahal failed to provide or withheld the information the Department requested. As explained in detail below, because the Department received inadequate responses to the questionnaire and multiple supplemental questionnaires from Panchmahal, the Department could not verify the incomplete information that Panchmahal did provide, which is necessary for the margin analysis.

Section 776(a)(2) of the Act provides that, if an interested party: (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested subject to sections 782 (c) and (e); (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i) of the Act, the Department shall, subject to Section 782(d), use the facts otherwise available in reaching the applicable determination.

Section 782(c)(1) of the Act provides that, if an interested party promptly notifies the Department that it is unable to submit the information requested in the requested form and manner, together with a full explanation and suggested alternative forms in which such party is able to submit the information, the Department shall take into consideration the ability of the party to submit the information in the requested form and manner, and may modify such requirements to the extent necessary to avoid imposing an unreasonable burden on that party. Section 782(c)(2) of the Act similarly provides that the Department shall consider the ability of the party submitting the information and shall provide such interested party assistance that is practicable.

Section 782(d) of the Act provides that, if the Department determines that a response to a request for information does not comply with the request, the Department will inform the person submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that person the opportunity to remedy or explain the deficiency. If the person submits further information that continues to be unsatisfactory, or this information is not submitted within the applicable time limits, the Department may, subject to section 782(e) of the Act, disregard all or part of the original and subsequent responses, as appropriate.

Pursuant to section 782(e) of the Act, notwithstanding the Department's determination that the submitted information is “deficient” under section 782(d) of the Act, the Department shall not decline to consider such information if all of the following requirements are satisfied: (1) The information is submitted by the established deadline; (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; and (5) the information can be used without undue difficulties.

In this investigation, Panchmahal failed to provide or withheld the information necessary to properly calculate a dumping margin, in the form and manner requested by the Department, which prevented the Department from conducting verification. Despite numerous requests and extra assistance from the Department, Panchmahal failed to provide cost reconciliations, that is, an explanation as to how it compiled its POR per-unit costs as derived from its cost accounting system/financial statements. Furthermore, Panchmahal is aware of the Department's requirements given that it has participated in other reviews in other proceedings in which the Department verified Panchmahal's cost and sales information. See Stainless Steel Bar From India; Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission of Administrative Review 66 FR 8939, (February 5, 2001).

The Department specifically requested the cost reconciliations in the original questionnaire sent to Panchmahal on January 29, 2002. The Department offered Panchmahal the opportunity to supplement its questionnaire response pursuant to section 782(d) of the Act to address the deficiencies and omissions of data which rendered its previous response inadequate for use in the preliminary determination. In particular, the Department issued six supplemental questionnaires for section D ( i.e. , August 27, 2002; September 12, 2002; October 1, 2002; October 23, 2002; October 28, 2002; and November 7, 2002). Five of these supplemental questionnaires requested that Panchmahal reconcile its reported POR per-unit costs to its financial statements. In the supplemental questionnaires, the Department also requested Panchmahal to calculate its cost of production figures based on actual costs incurred by Panchmahal during the POR. Moreover, in accordance with section 782(c) the Department also considered Panchmahal's difficulties in submitting the requested information and provided additional telephone and electronic-mail clarifications.

Although Panchmahal eventually provided what it alleged were its reported cost data on a POR basis in the fifth supplemental questionnaire response, Panchmahal still failed to explain the methodology it used to derive its POR per-unit costs from its cost accounting system. See fifth Supplemental Questionnaire Response, received November 4, 2002. Panchmahal's failure to reconcile its financial statements to its POR per-unit costs as requested by the Department in its original and six supplemental questionnaires constitutes a failure because Panchmahal did not provide the required information without explanation and because Panchmahal also withheld the information although it knew the requirements of the Department for cost verification based on its own previous experience and declined to comply to the best of its ability under sections 776(a)(2)(A) and (B). Most importantly, this failure to provide or withholding of the requested information by Panchmahal has resulted in an inadequate response that prevented the Department from conducting verification and using its data in the preliminary results. See Cancellation of Verification Memorandum to the File from Stephen Bailey to Edward Yang, dated November 18, 2002. Thus, pursuant to sections 776(a)(2)(A) and (B) of the Act, and having satisfied sections 782(c)(2), (d), and (e) of the Act, the Department must apply facts otherwise available in this case.

In selecting from among the facts otherwise available, section 776(b) of the Act provides that adverse inferences may be used in selecting from the facts available if a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. 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 (“SAA”) accompanying the Uruguay Round Agreements Act (“URAA”), H.R. Doc. No. 103-316, Citation No. (1994), at 870. Furthermore, “an affirmative finding of bad faith on the part of the respondent is not required before the Department may make an adverse inference.” See also Antidumping Duties, Countervailing Duties; Final Rule , 62 FR 27340 (May 17, 1997).

In this case, Panchmahal has failed to cooperate by not acting to the best of its ability to comply with the request for information. As discussed above, despite the numerous requests by the Department, Panchmahal failed to provide or withheld requested information from the Department. In response to Panchmahal's request for assistance via a telephone call from Mr. Pratik of Panchmahal, the Department clarified to Panchmahal the Department's cost reconciliation requests both in the telephone conversation and in a follow-up e-mail. See Memorandum to the File dated November 1, 2002. Panchmahal was provided numerous opportunities and supplemental questionnaires to fully respond to the Department's request for a cost reconciliation and to correct response deficiencies, in accordance with section 782(d) of the Act. See Cancellation of Verification Memorandum to the File from Stephen Bailey to Ed Yang, dated November 18, 2002. However, despite the assistance offered and provided by the Department's staff, Panchmahal failed to submit a questionnaire response that addressed the most important deficiency identified by the Department in each of the six supplemental questionnaires, the cost reconciliation.

Due to Panchmahal's failure to provide the necessary requested information that the Department had identified as necessary for the verification, the Department was precluded from conducting verification by the inadequacy of information on the record. Moreover, Panchmahal failed to provide a reasonable explanation for its failure to comply with these standard requests for information. Accordingly, the Department finds that Panchmahal did not act to the best of its ability to provide the information requested, despite the extensive assistance provided by the Department. As facts available, we have preliminarily assigned Panchmahal the all others rate of 48.80 percent.

In the previous administrative review, the Department decided to collapse Viraj Forgings Limited (“VFL”), Viraj Alloys Limited (“VAL”) and Viraj Impoexpo Limited (“VIL”) because the companies were found capable, through their sales and production operations, of manipulating prices or affecting production decisions (of each other). See Stainless Steel Wire Rod From India; Final Results of Antidumping Duty Administrative Review , 67 FR 37391 (May 29, 2002). In this case, the Viraj Group reported that there were no operational or legal changes to the Viraj Group during this POR. See the Viraj Group's July 23, 2002 submission at page 1. Based on the decision in the previous administrative review and because no information on the record deviates from the facts of the previous administrative review with respect to the factors which are used to determine collapsing, the Department will continue to treat VFL, VAL, and VIL as one entity for purposes of this administrative review, called “Viraj Group.”

To determine whether Mukand's and the Viraj Group's sales of subject merchandise from India to the United States were made at less than normal value, we compared the export price (“EP”) and constructed export price (“CEP”), as appropriate, to the normal value (“NV”), as described in the “Export Price/Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(2) of the Act, we calculated monthly weighted-average prices for NV and compared these to individual EP and CEP transactions.

In accordance with section 771(16) of the Act, we considered all products covered by the Scope of the Review section above, which were produced and sold by Mukand and the Viraj Group in the home market during the POR, to be foreign like products for purposes of determining appropriate comparisons to U.S. sales. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics and reporting instructions listed in the Department's questionnaire.

Mukand submitted information on the record which claimed that all of its grades should be treated as distinct grades for calculation purposes. See Mukand's July 17, 2002 submission at 2. To verify this claim, the Department requested that Mukand provide a chemical breakdown of each of its grades. After analyzing the data presented by Mukand, the Department has determined that there is insufficient record evidence to support Mukand's position that grade 304M is a distinct grade from 304, that grade 304LN is a distinct grade from 304L and that grade 420 is a distinct grade from grade 410. Therefore, the Department has preliminarily determined to combine the above grades; specifically, the Department has determined that grade 304M should be treated as grade 304, grade 304LN should be treated as grade 304L, and grade 420 should be treated as grade 410.

The grade chemistries provided on the record by Mukand indicate that grade 304M is a subset of grade 304, because they have similar chemistries and compositions; thus, Mukand's grades 304 and 304M have been treated by the Department as one grade for purposes of the model match program. Further, when the Department compared the chemistries of Mukand's grades 410 and 420 only slight differences existed, but when compared to the grade standards set out by the American Iron and Steel Institute (“AISI”), the reported chemistry for Mukand's grade 420 is more similar to the grade chemistry of AISI grade 410 than the grade chemistry for AISI grade 420; thus, Mukand's grades 420 and 410 have been treated by the Department as one grade for purposes of the model match program. Finally, the chemistry ranges reported by Mukand for graded 304L and 304LN indicate that grade 304LN has a similar chemistry and composition to grade 304L; thus, Mukand's grades 304LN and 304L have been treated by the Department as one grade for purposes of the model match program.

It is the Department's practice not to create additional categories unless the physical characteristics are significantly different from an existing known category. See Certain Cold-Rolled Carbon Steel Flat Products From Korea: Final Results of Antidumping Duty Administrative Review , 63 FR 781 (January 7, 1998). Therefore, for the purposes of these preliminary results, the Department has combined the grades as follows in its model match program: grade 304M should be treated as grade 304, grade 304LN should be treated as grade 304L, and grade 420 should be treated as grade 410.

In accordance with section 772(a) of the Act, export price (“EP”) is the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States. In accordance with section 772(b) of the Act, constructed export price (“CEP”) is the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter, as adjusted under subsections (c) and (d).

For purposes of this review, Mukand has classified certain sales as EP sales and certain sales as CEP sales. Based on the information on the record, we are using both export price and constructed export price as defined in section 772(a) and (b) of the Act.

For purposes of this review, the Viraj Group has classified all sales as CEP sales. Based on the information on the record, we are using constructed export price as defined in section 772(b) of the Act.

Mukand reported both EP and CEP sales during the POR in the United States. Mukand originally reported all of its U.S. sales as EP sales. Mukand explained that it had reported its sales as EP sales because in the ordinary course of trade, Mukand International Limited (“MIL”), Mukand's wholly-owned subsidiary, which was based in the United Kingdom during the POR, sells to one unaffiliated U.S. customer (“U.S. customer”), a trading company, prior to importation, thus meeting the definition of an EP transaction.

At verification, the Department found that in an ordinary sale, the unaffiliated U.S. customer initiates a sale by sending a purchase order to MIL. See Sales and Cost Verification of Mukand Limited in the Antidumping Administrative Review of Stainless Steel Wire Rod from India (“ Mukand Verification Report ”) at page 32. MIL acknowledges the customer's order and then sends the order information on to Mukand. See Mukand Verification Report at 32. Mukand produces the subject merchandise and upon completion of the order, invoices MIL and MIL invoices the unaffiliated U.S. customer in a back-to-back transaction. See Mukand Verification Report at 32. Mukand then ships the subject merchandise to the unaffiliated U.S. customer. See Mukand Verification Report at 32. Mukand arranges for shipping from its production facilities in Mumbai, India, and MIL becomes the importer of record in the U.S. See Mukand Verification Report at 32. MIL plays no further role with regard to sales between the unaffiliated U.S. customer and its customers once the subject merchandise is entered into the U.S. See Mukand Verification Report at page 32.

During the POR, however, the U.S. customer rejected several shipments, in full or in part, made pursuant to several purchase orders, because the merchandise was shipped late and therefore did not meet the terms of sale. Until this rejection, these sales had occurred in the manner described above. Upon further discussion between MIL and the U.S. customer, MIL cancelled the sales in its books and issued credit notes for the amount of merchandise rejected. See Mukand Verification Report at page 31. In addition, MIL and the U.S. customer reached an agreement with unique terms whereby the U.S. customer would hold the rejected subject merchandise at its U.S. warehouse at no expense to MIL until the U.S. customer needed to purchase the merchandise from MIL. See Mukand Verification Report at page 30. See also Mukand's October 21, 2002 supplemental response at annexure 1.

In accordance with this agreement, MIL's U.S. customer purchased a certain portion from the subject merchandise stored at the U.S. customer's U.S. warehouse during the POR. See Mukand Verification Report at page 30. The purchase was made in accordance with the agreement between MIL and the U.S. customer. See Mukand Verification Report at page 30. In its original response, Mukand reported these sales as EP sales, however, the Department sought clarification of whether Mukand was claiming that these sales were either EP or CEP sales. In response to the Department's questioning, Mukand reclassified the subject merchandise involved in these sales as CEP sales. Mukand reclassified these sales as CEP sales, because the sale of the subject material was made after its importation to the United States.

The Department has determined that Mukand's EP sales are properly reported sales, because those sales were made in accordance with the definition of an EP sale. In addition, the Department has determined that Mukand properly reported the reclassified EP sales as CEP sales, because those sales were made after the importation of the subject merchandise into the United States to the unaffiliated U.S. customer.

Based on the evidence on the record, the Department has preliminarily determined that those sales classified by Mukand as CEP sales should also be treated as consignment sales (with MIL's U.S. customer as the consignment agent) given the unique terms and circumstances of these sales; in particular, the existence of “consignment stock.” Due to the proprietary nature of the information on the record please see the Department's memorandum, Antidumping Duty Investigation of Stainless Steel Wire Rod from India: Consignment Sales Analysis Memorandum dated December 3, 2002 (“ Mukand Consignment Memorandum ”), for a detailed explanation of our decision.

On December 5, 2002, the Department formally informed Mukand of its decision to treat the CEP sales as consignment sales and requested Mukand to respond to the Department's November 26, 2002 supplemental questionnaire. See Department's Letter of December 5, 2002. Mukand provided its response to the Department's supplemental questionnaire on December 13, 2002, but failed to provide the requested information concerning costs incurred by its unaffiliated U.S. customer related to the downstream consignment sales that are necessary to calculate a margin. See Mukand supplemental response dated December 13, 2002 at 1 and 2. Although Mukand provided some pricing information (a few invoices) on these consignment sales, it failed to provide the relevant expense information related to these invoices and it failed to provide the requested and required database the Department needs to calculate a margin. Nevertheless, the Department issued a second supplemental questionnaire on December 17, 2002, requesting the prices and expenses incurred by MIL's unaffiliated U.S. customers relating to these consignment sales. See Supplemental Questionnaire dated December 17, 2002.

The Department has preliminarily determined that the use of facts available, in accordance with section 776(a)(2) of the Act, is warranted for the prices and expenses incurred for the unreported consignment sales in the U.S. market. Consistent with section 776(a)(2)(A) and (B) of the Act, Mukand withheld information that had been requested by the Department and failed to provide such information in a timely manner, justifying the use of facts otherwise available in reaching the applicable determination.

In this case, Mukand failed to provide price and expense information for its consignment sales through MIL's unaffiliated U.S. customer (the consignment agent). By not providing the consignment sales information requested by the Department in a database format that provides specific prices and expenses of these consignment sales, Mukand has prevented the Department from calculating an accurate antidumping duty margin, inclusive of the consignment sales.

Given that Mukand provided the Department with some pricing information, but not the requested expense information and the requested database, the Department finds it appropriate to apply facts available to those sales the Department has determined to be consignment sales. As facts available, the Department has used the weighted-average U.S. price and the weighted-average expenses submitted by Mukand in lieu of the prices and expenses of the consignment sales through MIL's unaffiliated U.S. customer. Nippon Steel Corp. v. United States , 2001 CIT 136, Slip-Op at 6 (Oct. 12, 2001); Notice of Final Determination of Sales at Less Than Fair Value: IQE Red Raspberries from Chile ; 67 FR 35790 (May 21, 2002); Notice of Preliminary Results of Antidumping Duty Administrative Review: Stainless Steel Sheet and Strip in Coils from France ; 67 FR 51210, (August 7, 2002). The Department has determined that the weighted-average of prices and expenses of all U.S. sales by MIL to its unaffiliated U.S. customer during the POR is proper because the Department only recently formally requested that Mukand provide its consignment sales information and Mukand provided some invoices. See Department's Letter of December 5, 2002. Additionally, the Department recently issued a supplemental questionnaire on these consignment sales. See Supplemental Questionnaire dated December 17, 2002. Further, the Department finds that the weighted-average is proper because the consignment sales are reflective of a variety of prices, quantities, and expenses. See Analysis for Mukand Steel Limited for the Preliminary Results of the Administrative Review on Stainless Steel Wire Rod from India for the period December 1, 2000 through November 30, 2001 , December 31, 2002 (“ Mukand Analysis Memorandum ”).

The Department calculated CEP, in accordance with section 772(b) of the Act, based on the packed CIF prices to the first unaffiliated customer in the United States. The Department made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, brokerage and handling, inland freight, international freight, U.S. customs duties, and marine insurance. In accordance with section 772(d)(1) of the Act, we deducted those selling expense associated with economic activities occurring in the United States, including direct selling expenses (bank charges and credit expenses) and indirect selling expenses.

We recalculated Mukand's inventory carrying cost factor to the total cost of manufacturing rather than the variable cost of manufacturing as reported in the questionnaire response. Finally, we recalculated Mukand's calculation of credit insurance to account for a decimal error found in Mukand's reported credit insurance. See Mukand Verification Report and Mukand Analysis Memorandum .

We deducted the profit allocated to expenses deducted under sections 772(d)(1) and (d)(2) in accordance with sections 772(d)(3) and 772(f) of the Act. In accordance with section 772(f) of the Act, we computed profit based on total revenues realized on sales in both the U.S. and home markets, less all expenses associated with those sales. We then allocated profit to expenses incurred with respect to U.S. economic activity, based on the ratio of total U.S. expenses to total expenses for both the U.S. and home market.

For purposes of this administrative review, Mukand classified the remainder of its sales as EP sales, stating that it sold subject merchandise directly to an unaffiliated importer in the United States during the POR. Therefore, the Department is using EP as defined in section 772(a) of the Act because the merchandise was first sold, prior to importation, by Mukand's affiliate MIL, which was based in London during the POR, to an unaffiliated purchaser in the United States. The Department based EP on packed prices to unaffiliated purchasers in the United States. The Department made deductions for inland freight, marine insurance, and brokerage and handling in accordance with section 772(c) of the Act. Finally, the Department recalculated Mukand's calculation of credit insurance to account for a decimal error found in Mukand's reported credit insurance. See Mukand Verification Report and Mukand Analysis Memorandum .

As explained in the “Duty Drawback” section below, the Department is not making any adjustments for duty drawback for EP or CEP sales.

For purposes of this review, the Viraj Group has classified all of its sales as CEP sales. Based on the information on the record, we are using constructed export price as defined in section 772(b) of the Act.

The Viraj Group has classified those sales made by VIL and VFL through Viraj USA Inc. (“Viraj USA”), an affiliated reseller that is 100% owned by VFL, as CEP sales. VIL and VFL make the shipment from India on a Cost Insurance Freight (“CIF”) and Ex-Dock Duty Paid (“EDDP”) basis to Viraj USA. Viraj USA clears the goods through customs and oversees customer delivery. Then Viraj USA sells the goods to the unaffiliated U.S. customer who makes payment to Viraj USA.

Based on the evidence on the record, the Department preliminarily determines that VIL's and VFL's U.S. sales through Viraj USA were made “in the United States” within the meaning of secton 772(b) of the Act, and thus have been appropriately classified by the Viraj Group as CEP transactions.

The Department calculated CEP, in accordance with section 772(b) of the Act, based on the packed CIF or EDDP prices to the first unaffiliated customer in the United States. The Department made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, brokerage and handling, inland freight, international freight, U.S. customs duties, marine insurance, customs clearance and delivery arrangements. In accordance with section 772(d)(1) of the Act, we deducted those selling expense associated with economic activities occurring in the United States, including direct selling expenses (bank charges and credit expenses) and indirect selling expenses. As explained in the “Duty Drawback” section below, we are not making any adjustment for duty drawback.

We deducted the profit allocated to expenses deducted under sections 772(d)(1) and (d)(2) in accordance with sections 772(d)(3) and 772(f) of the Act. In accordance with section 772(f) of the Act, we computed profit based on total revenues realized on sales in both the U.S. and home markets, less all expenses associated with those sales. We then allocated profit to expenses incurred with respect to U.S. economic activity, based on the ratio of total U.S. expenses to total expenses for both the U.S. and home market.

In the previous administrative review, the Department denied the Viraj Group's request for an upward adjustment to the U.S. starting price based on duty drawback pursuant to section 772(c)(1)(B) of the Act. See Stainless Steel Wire Rod from India; Final Results of Antidumping Duty Administrative Review , 67 FR 37391 (May 29, 2002) (“ Final Results ”). The Department denied the duty drawback adjustment because the reported duty drawback was not directly linked to the amount of duty paid on imports used in the production of merchandise for export as required by the Department's two-part test, which states there must be: (1) a sufficient link between the import duty and the rebate, and (2) a sufficient amount of raw materials imported and used in the production of the final exported product. See Rajinder Pipes Ltd. v. U.S. (“ Rajinder Pipes ”), 70 F. Supp. 2d 1350, 1358. The Court of International Trade upheld the Department's decision to deny respondent an adjustment for duty drawback because there was not substantial evidence on the record to establish that part one of the Department's test had been met. See Viraj Group, Ltd. v. United States of America and Carpenter Technology, Corp., et al. , Slip Op. 01-104 (CIT August 15, 2001).

Similarly, in the current review, the Department finds that the Viraj Group has not provided substantial evidence on the record to establish the necessary link between the import duty and the reported rebate for duty drawback. The Viraj Group has reported that it received duty drawback in the form of duty entitlement certificates which are issued by the Government of India to neutralize the incidence of basic custom duty on the import of raw materials used in the production of subject merchandise, but has failed to establish the necessary link between the import duty paid and the rebate given by the Government of India. As in the previous review, the Viraj Group was not able to demonstrate that the import duty paid and the duty drawback rebate were directly linked. Therefore, the Department is denying a duty drawback credit for the preliminary results of this review.

The Department also finds that Mukand has not provided substantial evidence on the record to establish the necessary link between the import duty and reported rebate for duty drawback. Mukand has reported that it received duty drawback in the form of duty entitlement certificates which are issued by the Government of India to neutralize the incidence of basic custom duty on the import of raw materials used in the production of subject merchandise, but has failed to establish the necessary link between the import duty paid and the rebate given by the Government of India. In this review, Mukand was not able to demonstrate that the import duty paid and the duty drawback rebate were directly linked. See Mukand Verification Report at page 21. Therefore, the Department is denying a duty drawback credit for the preliminary results of this review.

After testing home market viability, we calculated NV as noted in the “Price-to-CV Comparisons” and “Price-to-Price Comparisons” sections of this notice.

In accordance with section 773(a)(1)(C) of the Act, to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating normal value (“NV”) ( i.e. , the aggregate volume of home market sales of the foreign like product is greater than or equal to five percent of the aggregate volume of U.S. sales), we compared Mukand and the Viraj Group's volume of home market sales of the foreign like product to the volume of each of their U.S. sales of subject merchandise. Pursuant to sections 773(a)(1)(B) and (C) of the Act, because both Mukand and the Viraj Group's aggregate volume of home market sales of the foreign like product was greater than five percent of its aggregate volume of U.S. sales for the subject merchandise, we determined that sales in the home market provide a viable basis for calculating NV. We therefore based NV on home market sales to unaffiliated purchasers made in the usual commercial quantities and in the ordinary course of trade.

For NV, we used the prices at which the foreign like product was first sold for consumption in India, in the usual commercial quantities, in the ordinary course of trade, and, to the extent possible, at the same level of trade (“LOT”) as the EP or CEP as appropriate. After testing home market viability and whether home market sales were at below-cost prices, we calculated NV as noted in the “Price-to-Price Comparisons” and “Price-to-Constructed Value (“CV”) Price Comparisons” sections of this notice.

Additionally, the Viraj Group reported the home market sales of VAL. Since we have preliminarily determined to collapse the companies of the Viraj Group, we included the home market sales of VAL as the basis of NV.

Based on the information contained in a timely filed cost allegation by the petitioners on April 25, 2002, the Department found reasonable grounds to believe or suspect that Mukand's sales of the foreign like product in their respective comparison market were made at prices below the cost of production, pursuant to section 773(b)(1) of the Act based on allegations made by petitioners in this case. See petitioners' Allegation of Sales Below Cost of April 25, 2002. As a result, the Department initiated a sales below-cost investigation. See Letter of Initiation of Sales Below Cost Investigation dated May 30, 2002.

Because the Department disregarded certain Viraj Group sales made in the home market at prices below the cost of producing the subject merchandise in the most recently completed segment of this proceeding and excluded such sales from normal value, the Department determined that there are reasonable grounds to believe or suspect that the Viraj Group made sales in the home market at prices below the cost of producing the merchandise in this review. See Final Results ; and section 773(b)(2)(A)(ii) of the Act. As a result, the Department initiated a cost of production inquiry in this case on January 29, 2002, to determine whether the Viraj Group made home market sales during the POR at prices below their respective COPs within the meaning of section 773(b) of the Act.

In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of Mukand's and the Viraj Group's respective costs of materials and fabrication for the foreign like product, plus amounts for home market selling, general and administrative expenses (“SG&A”), including interest expenses, and packing costs. The Department relied on the COP data submitted by Mukand and the Viraj Group in their original and supplemental cost questionnaire responses.

For the purpose of these preliminary results, we revised the COP information submitted by Mukand as follows: 1) we recalculated Mukand's interest expense ratio to adjust the amount of interest expenses attributed to construction in progress and to eliminate SG&A and interest from the denominator used to determine the interest expense factor; and 2) we recalculated Mukand's general and administrative expenses (“G&A”) to account for errors in the allocation of expenses between indirect selling expenses and G&A. See Mukand Analysis Memorandum .

For the purpose of these preliminary results, we revised the COP information submitted by the Viraj Group as follows: 1) we adjusted the Viraj Group's financial expenses to include all of the interest expenses reported in the audited financial statements of all of the Viraj Group companies; 2) we recalculated the Viraj Group's reported G&A to include all depreciation reported on its financial statements; and 3) we re-valued the Viraj Group's direct materials for CV based on the COP of control numbers (“CONNUM”) with identical grades rather then use the transfer price from collapsed entities in the calculation of CV. See Analysis for the Preliminary Results of Review for Stainless Steel Wire Rod from India for 2000-2001: The Viraj Group, Limited, dated December 31, 2002 (“ Viraj Analysis Memorandum ”).

We compared the weighted-average COP for Mukand and the Viraj Group's home market sales of the foreign like product as required under section 773(b) of the Act, in order to determine whether these sales had been made at prices below the COP. In determining whether to disregard home market sales made at prices less than the COP, we examined whether such sales were made: (1) in substantial quantities within an extended period of time; and (2) at prices which permitted the recovery of all cost with all costs within a reasonable period of time, in accordance with sections 773(b)(1)(A) and (B) of the Act. We compared the COP to home market prices, less any applicable billing adjustments, movement charges, discounts, and indirect selling expenses.

Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of Mukand's or the Viraj Group's sales of a given product were, within an extended period of time, at prices less than the COP, we did not disregard any below-cost sales of that product because we determined that the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of Mukand's or the Viraj Group's sales of a given product were at prices less than the COP, we determined such sales to have been made in “substantial quantities” within an extended period of time, in accordance with sections 773(b)(2)(B) of the Act and 19 C.F.R. 351.406(b). In such cases, because we used POR average costs, we also determined that such sales were not made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act. We compared the COP for subject merchandise to the reported home market prices less any applicable movement charges. Based on this test, we disregarded below-cost sales. Where all sales of a specific product were at prices below the cost of production, we disregarded all sales of that product.

For those products comparisons for which there were sales at prices above the COP, we based NV on the home market prices to the home market customers. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. Additionally, in accordance with section 773(a)(6)(A) and (b), we deducted home market packing costs and added U.S. packing costs. In accordance with the Department's practice, where all contemporaneous matches to a U.S. sale observation resulted in difference-in-merchandise adjustments exceeding 20 percent of the cost of manufacturing (“COM”) of the U.S. product, we based NV on CV. We calculated NV based on prices to unaffiliated home market customers. We applied Mukand's inventory carrying cost factor to the total cost of manufacturing instead of the variable cost of manufacturing as reported by Mukand in its questionnaire response. Finally, we revised Mukand's calculation of credit insurance to account for a decimal error found in Mukand's reported credit insurance calculation at verification. See Mukand Verification Report at 2 and Mukand Analysis Memorandum.

For those product comparisons for which there were sales at prices above the COP, we based NV on the home market prices to the home market customers. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. Additionally, in accordance with section 773(a)(6)(A) and (B), we deducted home market packing costs and added U.S. packing costs. In accordance with the Department's practice, where all contemporaneous matches to a U.S. sale observation resulted in differences-in-merchandise adjustments exceeding 20 percent of the cost of manufacturing (“COM”) of the U.S. product, we based NV on CV. We calculated NV based on prices to unaffiliated home market customers. We made circumstances of sale adjustments for credit expenses, as appropriate.

In accordance with section 773(a)(4) of the Act, we based NV on CV if we were unable to find a home market match of identical or similar merchandise. We calculated CV based on the sum of Mukand's and the Viraj Group's cost of materials, fabrication employed in producing the subject merchandise, and SG&A, including interest expenses and profit. We calculated the COPs included in the calculation of CV as noted above in the “Calculation of COP” section of this notice. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expense and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in India. For selling expenses, we used the actual weighted-average home market direct and indirect selling expenses. For CV, we made the same adjustments described in the COP section above.

The meeting will begin at 9a.m. on Sunday, January 26, 2003. The Committee's agenda includes the following issues:

(1) Comments on the geographic boundaries of Alternative 6.

(2) Comments on Alternative 5 suboption for the Aleutian Islands.

(3) Update on the geographic boundaries of the Gulf of Alaska Alternatives in accordance with Coast Guard and NMFS regulatory specifications.

(4) Discussion of the concept of a baseline for the analysis.

Although non-emergency issues not contained in this agenda may come before the Committee for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), these issues may not be the subject of formal Committee action during this meeting. Committee action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Committee's intent to take final action to address the emergency.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen, 907-271-2809, at least 5 working days prior to the meeting date.

The meeting will begin at 9 a.m. on Thursday, January 23, 2003, and continue through Friday, January 24, 2003. The Committee's agenda includes the following issues:

(1) Review a discussion paper which outlines a proposed problem statement and general alternatives and issues for long-term, significant revisions to the Observer Program.

(2) Review a NMFS proposal for a short-term pilot project to test deployment of observer resources to determine catch composition and bycatch rates in a specific fishery.

Although non-emergency issues not contained in this agenda may come before the Committee for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), these issues may not be the subject of formal Committee action during this meeting. Committee action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305)c) of the Magnuson-Stevens Act, provided the public has been notified of the Committee's intent to take final action to address the emergency.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen, 907-271-2809, at least 5 working days prior to the meeting date.

The nation is commemorating the 30th anniversary of the passage of Title IX, the landmark legislation prohibiting recipients of Federal funds from discriminating on the basis of sex. Since this legislation was enacted, there has been a dramatic increase in the number of women participating in athletics at the high school and college level. The Secretary of Education has determined that this anniversary provides an appropriate time to review the application of Title IX to educational institutions; efforts to provide equal opportunity in athletics to women and men. In order to do so, the Secretary established the Commission on Opportunity in Athletics. The Commission will produce a report no later than February 28, 2003, outlining its findings relative to the opportunities for men and women in athletics in order to improve the effectiveness of Title IX.

The Commission will discuss the following priority areas:

1. Are Title IX standards for assessing equal opportunity in athletics working to promote opportunities for male and female athletes?

2. Is there adequate Title IX guidance that enables colleges and school districts to know what is expected of them and to plan for an athletic program that effectively meets the needs and interests of their students?

3. Is further guidance or are other steps needed at the junior and senior high school levels where the availability or absence of opportunities will critically affect the prospective interests and abilities of student athletes when they reach college age?

4. How should activities such as cheerleading or bowling factor into the analysis of equitable opportunities?

5. How do revenue producing and large-roster teams affect the provision of equal athletic opportunities? The Department has heard from some parties that whereas some men athletes will “walk-on” to intercollegiate teams—without athletic financial aid and without having been recruited—women rarely do this. Is this accurate and, if so, what are its implications for Title IX analysis?

6. In what ways do opportunities in other sports venues, such as the Olympics, professional leagues, and community recreation programs, interact with the obligations of colleges and school districts to provide equal athletic opportunity? What are the implications for Title IX?

7. Apart from Title IX enforcement, are there other efforts to promote athletic opportunities for male and female students that the Department might support, such as public-private partnerships to support the efforts of schools and colleges in this area?

You may view this document, as well as all other Department of Education documents published in the Federal Register , in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/legislation/FedRegister.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.

The Hanford Site defense activities related to nuclear weapons production created a wide variety of waste. Over 50 million gallons of waste are presently stored in the HLW tank farms, which are located in the 200 Area of the Site. The waste is stored in 149 underground SSTs (ranging in capacity from approximately 55,000 to 1 million gallons) and 28 underground DSTs (ranging in capacity from approximately one to 1.16 million gallons) grouped in 18 tank farms, and approximately 60 smaller miscellaneous underground storage tanks. This waste has been processed and transferred between tanks, and as a result, the chemical, physical ( i.e. , liquid, solid and sludge) and radiological characteristics of the waste vary greatly among and within individual tanks. In addition, the tank waste contains chemicals or has characteristics classified as hazardous waste under RCRA regulations (40 CFR Parts 260-268 and Parts 270-272) and as dangerous waste under the Washington Administrative Code “Dangerous Waste Regulations” (WAC 173-303).

In 1996, DOE issued the Tank Waste Remediation System (TWRS) EIS (DOE/EIS-0189), which included analyses of alternatives for retrieving and treating ( e.g., immobilizing) the waste stored in the tank farms. Because sufficient data were not available to evaluate a range of closure actions, tank system closure alternatives were not evaluated in the TWRS EIS. Among the uncertainties were data regarding past leak losses from the SSTs and how retrieval technology would perform to meet retrieval objectives.

In 1997, DOE issued its Record of Decision (ROD, 62 FR 8693, February 26) in which DOE decided that it would proceed with tank waste retrieval and treatment. In the ROD and subsequent supplemental analyses, DOE acknowledged that there were substantial technical uncertainties that required resolution. Nevertheless, to make progress while resolving the technical uncertainties, DOE decided to implement waste treatment using a phased approach as identified in the TWRS ROD. During the initial phase (Phase I), DOE planned to design, construct and operate demonstration-scale waste treatment facilities. Following the demonstration phase, DOE would construct full-scale facilities to treat the remaining tank waste (Phase II).

DOE's decision in the TWRS ROD was consistent with modifications to the Tri-Party Agreement contained in the M-62, “Complete Pretreatment, Processing and Vitrification of Hanford High-level (HLW) and Low-activity (LAW) Tank Wastes” series of milestones. Accordingly, DOE proceeded with plans to design, construct, and operate facilities that would separate waste into high-level and low-activity waste streams, vitrify the high-level waste stream and vitrify or similarly immobilize the LAW stream. These facilities are now under construction and are collectively referred to as the “Waste Treatment Plant” or WTP.

DOE's strategy for retrieving, treating and disposing of the tank waste and closing the tank farms has continued to evolve, based on information becoming available since the TWRS ROD was issued. New information and proposed changes to DOE's strategy include the following:

• Design of and preliminary performance projections for the WTP support DOE's proposal to extend operations beyond the original plan to operate the WTP for a ten-year period and to enhance throughput compared to facilities planned for in the 1997 ROD.

• New information indicates that deployment of large-scale treatment facilities in approximately 2012 to immobilize waste not processed by the WTP currently under construction, as identified in the TWRS ROD, may be prohibitively expensive (DOE/EIS-0189-SA-3).

• Under DOE Order 435.1 (Radioactive Waste Management), as applicable, DOE may determine that some tank wastes should be managed as low-level waste (LLW) and transuranic (TRU) waste, which may result in changes in how DOE may treat and dispose of portions of the SST and DST wastes from the HLW tank farms.

• DOE wants to consider non-vitrification treatment technologies for LAW and LLW, if these wastes could be immobilized and disposed of onsite or offsite, while providing protection to the human environment comparable to LAW and LLW immobilized by vitrification.

In developing its Performance Management Plan for the Accelerated Cleanup of the Hanford Site (PMP, DOE/RL-2000-47, August 2002), DOE stated its intent to meet its commitments under the Tri-Party Agreement, and identified its plan to complete tank waste retrieval, treatment and disposal by 2028, and to close all of the tanks and associated facilities, including the WTP, by 2033. DOE's current plans call for closing all of the SSTs by 2028.

DOE stated in the PMP that to achieve these objectives, increased capacity will be needed for the WTP, along with additional treatment capacity provided by other waste immobilization technologies, referred to herein as “supplemental” technologies (bulk vitrification, containerized grout, steam reforming, or sulfate removal are examples). Also in the PMP and in the Supplement Analysis for the Tank Waste Remediation System (DOE/EIS-0189-SA3, 2001), DOE concluded that its evolving strategy for treating and disposing of the tank wastes by 2028 and closing the SSTs by 2028 requires NEPA analysis of proposed tank waste retrieval, treatment and disposal, and proposed tank closure actions.

Further, under the TPA Milestone M-45, “Complete Closure of All Single-Shell Tank (SST) Farms,” DOE and the Washington State Department of Ecology (Ecology) have identified a process to start discussing how SST closure would occur. An important part of the process DOE and Ecology have defined for closing tank systems is compliance with Washington State Dangerous Waste regulations that require approval of a closure plan and modification of the Hanford Site Dangerous Waste Permit. Before Ecology can approve either a closure plan or modification of DOE's permit, the State of Washington must fulfill its State Environmental Policy Act (SEPA) requirements. As SEPA is very similar to NEPA, Ecology can adopt a NEPA document if it determines that the document is sufficient to meet SEPA requirements. Ecology has agreed to be a cooperating agency in preparing this EIS.

To meet its commitments under the Tri-Party Agreement and implement its plans to close the tank systems and associated facilities in a timely manner to reduce existing and potential future risk to the public, site workers, and the environment, DOE needs to complete waste retrieval, treatment and disposal of the waste from the SST and DST systems by 2028 and close all SST systems by 2028.

Although DOE is addressing safety and environmental issues posed by tank wastes to minimize current potential risks to human health and the environment, DOE must also implement long-term actions to safely manage and dispose of waste from the tank waste systems, including waste associated with inactive miscellaneous underground storage tanks, and close the SST systems to reduce permanently the potential risk to human health and the environment. These long-term actions also are needed to ensure compliance with applicable Federal requirements regulating the management and disposal of radioactive waste, as well as Federal and Washington State requirements regulating hazardous and mixed waste.

DOE proposes to retrieve waste from the 149 SST and 28 DST systems and close the SST tank farms in a manner that complies with Federal and Washington State requirements and protects the human environment. (Closure of the DSTs and closure of the WTP are not part of the proposed action because they are active facilities needed to complete waste treatment. Closure of the DSTs and WTP would be addressed at a later date, after appropriate NEPA analysis.) DOE proposes to immobilize the retrieved waste in the WTP and through supplemental treatment technologies such as bulk vitrification, grout, steam reforming and sulfate removal, and to package the immobilized waste for offsite shipment and disposal in licensed and/or permitted facilities or disposal onsite. DOE proposes to close the SST farms (including tanks, ancillary equipment and soils) within the tank farm area by 2028. The tanks would be filled with materials to immobilize the residual waste and prevent long-term degradation of the tanks and discourage intruder access. Associated support buildings, structures, laboratories, and the treatment facilities would be decontaminated and decommissioned in a cost-effective, legally compliant, and environmentally sound manner. Under the proposed action, DOE would use existing, modified, or, if required, new systems to assure capability to store and manage waste during retrieval and treatment.

The proposed action could result in changes to DOE's tank waste management program with respect to waste storage, waste retrieval, waste treatment, waste disposal, and tank farm closure at the Hanford Site. These key variables were evaluated to develop the range of reasonable alternatives identified below. In terms of waste storage, the EIS would analyze the use of the existing waste storage systems and evaluate the need for new storage systems. With regard to waste retrieval, DOE would evaluate a range of timing of retrieval and the technologies used, from past-practice sluicing as analyzed in the TWRS EIS to dry retrieval. Treatment and disposal alternatives for portions of the SST and DST waste would be evaluated based on some volume of the waste being classified as LLW or TRU waste pursuant to DOE Order 435.1. The waste identified as LLW could be treated and packaged for onsite or offsite disposal. The waste identified as TRU waste could be treated and packaged for transport and disposal at the Waste Isolation Pilot Plant (WIPP) near Carlsbad, New Mexico.

Unless a specific alternative identifies a waste type as LLW and/or TRU waste, the waste would be analyzed as HLW or LAW for the purposes of treatment and disposal. The alternatives for waste treatment include: 1) Treating all wastes via an enhanced WTP as vitrified waste; 2) treating HLW via the WTP and LAW via WTP or supplemental treatments; or 3) treating the waste as stated in #2 and/ or supplemental treatment for LLW and TRU waste in the tank farms, in which case some waste would not be processed through the WTP. The options for waste disposal include disposing of the waste onsite using existing or new facilities, disposing of the waste at offsite government facilities ( e.g. , a geological repository, WIPP, DOE's Nevada Test Site) or using onsite and offsite commercial facilities (such as Envirocare in Utah) for disposal of Hanford waste. Alternatives for tank closure would be evaluated based on broad closure strategies including clean closure (removal of the tanks, ancillary facilities, and contaminated soils) and landfill closure (residual waste left in place and post closure care).

Each of the six alternatives contains a waste storage, retrieval, treatment and disposal component. Alternatives 3 through 6 also include a tank closure component. The main differences among the alternatives include the extent of waste retrieval, the waste treatment and disposal approach, the tank closure approach, and timing to complete the necessary activities.

The Council on Environmental Quality NEPA Regulations (40 CFR parts 1500-1508), and the DOE NEPA Regulations (10 CFR part 1021) require analysis of a No Action alternative.

Storage: DOE would continue current waste management operations using existing storage facilities. Immobilized ( i.e. , vitrified) High-level Waste (IHLW) would be stored onsite pending disposal at a geologic repository. Once WTP operations are completed, all tank waste system storage (SSTs and DSTs), treatment, and disposal facilities at the Hanford Site would be placed in a stand-by operational condition.

Retrieval: Waste would be retrieved to the extent required to provide waste feed to the WTP using currently available liquid-based retrieval and leak detection technologies (approximately 25-50% of the total waste volume would be retrieved).

Treatment: No new vitrification or treatment capacity beyond that anticipated in the WTP would be deployed. However, the WTP would be modified within parameters provided for in the TWRS ROD to increase throughput. The WTP would continue to operate until its design life ends in 2046.

Disposal: The residual waste in tanks and the waste remaining in tanks that had not been retrieved (approximately 50 to 75% of the total waste volume) would remain in the tank farm indefinitely. Immobilized Low Activity Waste (ILAW) (by vitrification) would be disposed of onsite. IHLW would be stored onsite pending disposal at a geological repository. For purposes of analysis, administrative control of the tank farms would end following a 100-year period.

Closure: Tank closure would not be addressed; under this alternative, some waste would be left in the tanks indefinitely.

This alternative would continue implementation of decisions made in the TWRS ROD and as considered in three supplement analyses completed through 2001. ( See “RELATED NEPA DECISIONS AND DOCUMENTS” below for references.) Under these supplement analyses, DOE concluded that changes in the design and operation of the WTP, as defined in its contracts and program plans, were within the bounds of analysis of environmental impacts in the TWRS EIS. Among the key modifications that would occur under this alternative are: (1) Implementing the initial phase of waste treatment with one ILAW facility rather than two, (2) expanding the design capacity of the ILAW facility from 20 metric tons of glass per day to 30 metric tons of glass per day, and (3) extending the design life of the Phase I facilities from 10 years to 40 years. Under this alternative, no new actions would be taken beyond those previously described in the TWRS ROD and supplement analyses regarding the tank waste.

Storage: DOE would continue current waste management operations using existing storage facilities as described under No Action.

Retrieval: Waste would be retrieved to the Tri-Party Agreement goal ( i.e. , residual waste would not exceed 360 cubic feet for 100 series tanks or 36 cubic feet for 200 series tanks, which would correspond to 99% retrieval) using currently available liquid-based retrieval and leak detection systems.

Treatment: The existing WTP would be modified to enhance throughput and supplemented with additional vitrification capacity, as needed, to complete waste treatment by 2028. Under this alternative, all waste retrieved from tanks (approximately 99%) would be vitrified.

Disposal: Retrieved and treated waste would be disposed of onsite (ILAW) or stored onsite pending disposal at a geologic repository (IHLW). Once operations are completed, all tank waste system waste storage, treatment, and disposal facilities at the Hanford Site would be placed in a stand-by operational condition. The residual waste would remain in the tank farm indefinitely. For purposes of analysis, DOE assumes under this alternative that it would cease to maintain administrative control after a 100-year period.

Closure: Tank closure would not be addressed under this alternative. Some waste would be left in the tanks indefinitely.

Storage: DOE would continue current waste management operations using existing storage facilities.

Retrieval: Waste would be retrieved to the Tri-Party Agreement goal ( i.e. , residual waste would not exceed 360 cubic feet for 100 series tanks or 36 cubic feet for 200 series tanks, which would correspond to 99% retrieval) using currently available liquid-based retrieval and leak detection systems.

Treatment: Retrieved waste would be treated with the WTP capacity based on enhanced and/or modified performance of operating systems ( e.g. , modifications to melters to increase throughput). WTP capacity would be supplemented with additional waste treatment capacity to immobilize LAW using a non-vitrification technology. New non-vitrification supplemental treatment capacity would be developed external to the WTP to immobilize a portion of the tank waste that would be designated as LLW pursuant to DOE Order 435.1 and/or prepare a portion of the tank waste that would be designated as TRU waste for disposal. Waste treatment under this alternative would be completed in 2028 and all SST tank systems would be closed by 2028.

Disposal: ILAW immobilized via the WTP would be disposed of onsite or at offsite commercial ( e.g. , U.S. Ecology of Washington or Envirocare of Utah) or DOE facilities (Nevada Test Site). IHLW would be stored onsite pending disposal at a national geologic repository. LLW immobilized external to the WTP would be disposed of onsite or at offsite commercial or DOE facilities. TRU waste would be packaged and stored onsite in an existing or new facility pending disposal at the Waste Isolation Pilot Plant (WIPP).

Closure: As operations are completed, SST waste system, waste storage, treatment and disposal facilities at the Hanford Site would be closed as a RCRA landfill unit under Dangerous Waste Regulations under WAC 173-303 and DOE Order 435.1, as applicable, or decommissioned (waste treatment facilities under DOE Order 430.1A). The tanks would be filled with materials to immobilize the residual waste and prevent long-term degradation of the tanks and discourage intruder access. Tanks, ancillary equipment, and contaminated soils would be remediated and remain in place and the closed tank systems would be covered with an engineered barrier that exceeds RCRA landfill requirements and is the more protective of the landfill options being evaluated ( i.e. , Hanford barrier).

The main differences between this alternative and other alternatives involve: 1) Using a more robust barrier for closure of tank systems that would provide longer term protection from contaminant releases from closed tank systems and limit intrusion into the closed system compared to the barrier evaluated under Alternatives 5 and 6 (tanks would not be closed under Alternatives 1 and 2, thus no barriers would be used); and 2) Treatment and disposal of treated waste would be the same for Alternatives 3 through 5 allowing for a comparison of the impacts associated with deployment of systems to treat and dispose of transuranic waste (Alternatives 3 through 5) to treatment of waste via the WTP and subsequent management as ILAW and IHLW (Alternatives 2 and 6).

Storage: DOE would continue current waste management operations using existing storage facilities that would be modified, as needed, to support minimizing liquid losses from SSTs and accelerating SST waste retrieval into safer storage pending retrieval for treatment.

Retrieval: Waste would be retrieved using multiple waste retrieval campaigns using various retrieval technologies ( e.g. , confined sluicing, crawlers), to the extent needed to support clean closure requirements ( i.e. , 0.1% residual in the tanks or 99.9% waste retrieved from tanks) using liquid and non-liquid retrieval and enhanced in-tank and/or ex-tank leak detection systems.

Treatment: Retrieved waste would be treated with the WTP capacity based on enhanced and/or modified performance of operating systems (see Alternative 3). New alternative treatment capacity to immobilize LLW ( e.g. , bulk vitrification, containerized grout, steam reforming, sulfate removal) and/or prepare TRU waste for disposition would be developed external to the WTP. Waste treatment under this alternative would be completed in 2028 and all SST tank systems would be closed by 2028.

Disposal: LAW immobilized via the WTP would be disposed of onsite or at offsite commercial or DOE facilities (see Alternative 3). IHLW would be stored onsite pending disposal at a national geologic repository. LLW immobilized external to the WTP would be disposed of onsite or at offsite commercial or DOE facilities (See Alternative 3). TRU waste would be retrieved from tanks, packaged in a new facility, and stored onsite in existing or new storage facilities pending shipment to and disposal at the WIPP.

Closure: Clean closure reflects minimal residual waste in tanks and ancillary equipment, and contaminated soils remediated in place and/or removed from the tank system to be treated and disposed of in accordance with RCRA requirements. As operations are completed, all SST system storage, treatment, and disposal facilities at the Hanford Site would be closed. Waste storage and disposal facilities would be closed in a manner that supported future use on an unrestricted basis and that did not require post-closure care.

The main differences between this alternative and the other alternatives are: 1) The greatest amount of waste is retrieved from tanks based on multiple technology deployments; and 2) tank systems would be closed to meet clean closure standards. Treatment and disposal of treated waste would be the same for Alternatives 3 through 5, allowing a comparison of the impacts associated with deployment of systems to treat and dispose of TRU waste (Alternatives 3 through 5) to treatment of TRU waste via the waste treatment plant (Alternatives 2 and 6).

Storage: DOE would continue current waste management operations using existing storage facilities that would be modified or supplemented with new waste storage facilities, to support actions regarding near-term acceleration of tank waste retrieval and treatment. Under this alternative, some SSTs would be retrieved and closed by 2006, exceeding the existing TPA M-45 commitments.

Retrieval: Waste would be retrieved to the Tri-Party Agreement goal to the extent feasible using currently available liquid-based retrieval and leak detection systems (residual waste would correspond to 90-99% retrieval).

Treatment: Waste treatment would be completed no later than 2024 and SST systems would be closed by 2028. Retrieved waste would be treated with the WTP capacity based on enhanced and/or modified performance of operating systems, as described under Alternative 2. WTP capacity would be supplemented with new treatment capacity to immobilize LLW. New treatment capacity to immobilize LLW and/or prepare TRU waste for disposition would be developed external to the WTP.

Disposal: LAW immobilized via the WTP would be disposed of onsite or at offsite commercial or DOE facilities. IHLW would be stored onsite pending disposal at the proposed national geologic repository. LLW immobilized external to the WTP would be disposed of onsite or at offsite commercial or DOE facilities. Transuranic waste would be packaged and stored onsite pending disposal at the WIPP.

Closure: As operations are completed, SST tank waste system waste storage, treatment, and disposal facilities would be closed as a RCRA landfill unit under Dangerous Waste Regulations under WAC 173-303 and DOE Order 435.1, or decommissioned (waste treatment facilities under DOE Order 430.1A). Waste storage and disposal facilities would be closed as RCRA landfill units under applicable state Dangerous Waste Regulations (WAC 173-303). The tanks would be filled with materials to immobilize the residual waste and prevent long-term degradation of the tanks and discourage intruder access. Tank systems (tanks, ancillary equipment, and soils) would be closed in place and would be covered with a modified RCRA barrier ( i.e. , a barrier with performance characteristics that exceed RCRA requirements for disposal of hazardous waste).

The main difference between this alternative and the other alternatives are (1) completion of some SST closure actions by 2006, completion of all waste treatment by 2024, and closure of all SST systems by 2028 in contrast to Alternatives 2, 3 and 6, which would complete waste treatment in 2028 and SST tank systems closure in 2028 and; (2) no remediation of ancillary equipment and contaminated soil, allowing a comparison with the more extensive remediation analyzed under Alternative 3. Another main difference between this alternative and Alternative 3 is the use of a modified RCRA barrier. Treatment and disposal of treated waste would be the same for Alternatives 3 through 5, allowing for a comparison of the impacts associated with deployment of systems to treat and dispose of transuranic waste (Alternatives 3 through 5) to treatment of transuranic waste via the WTP (Alternatives 2 and 6).

Storage: DOE would continue current waste management operations using existing storage facilities that would be modified, as needed, to support SST waste retrieval and treatment.

Retrieval: Waste would be retrieved to the Tri-Party Agreement goal ( i.e. , residual waste would not exceed 360 cubic feet for 100 series tanks or 36 cubic feet for 200 series tanks, which corresponds to retrieval of 99%) using liquid and non-liquid based retrieval and enhanced leak detection systems.

Treatment: Retrieved waste would be treated with the WTP capacity based on enhanced and/or modified performance of operating systems. Supplemental treatment technologies would be used to immobilize LLW. New non-vitrification treatment capacity to immobilize LLW for disposition would be developed external to the WTP. Waste treatment under this alternative would be completed in 2028, and all SST systems would be closed by 2028.

Disposal: ILAW immobilized via the WTP would be disposed of onsite or at offsite commercial or DOE facilities. IHLW would be stored onsite pending disposal at a national geologic repository. LLW immobilized external to the WTP would be disposed of onsite or at offsite commercial or DOE facilities.

Closure: As operations are completed, all tank waste system waste storage, treatment, and disposal facilities at the Hanford Site would be closed (tank farm systems) or decommissioned (waste treatment facilities). The tanks would be filled with materials to immobilize the residual waste and prevent long-term degradation of the tanks and discourage intruder access. Waste storage and disposal facilities would be closed as RCRA landfill units under applicable state Dangerous Waste Regulations (WAC 173-303). Residual waste in tanks, ancillary equipment, and contaminated soils would be remediated in place as needed in accordance with RCRA requirements, and the closed tank systems would be covered with a modified RCRA barrier.

The main difference between this alternative and the other alternatives is that under this alternative there would not be a separate TRU waste stream (Alternatives 3 through 5). As with Alternative 2, waste would be treated in the WTP and subsequently managed as either ILAW or IHLW.

Preliminary Identification of EIS Issues: The following issues have been tentatively identified for analysis in the EIS. The list is presented to facilitate comment on the scope of the EIS; it is not intended to be all-inclusive or to predetermine the potential impacts of any of the alternatives.

• Effects on the public and onsite workers from releases of radiological and nonradiological materials during normal operations and reasonably foreseeable accidents.

• Long-term risks to human populations resulting from waste disposal and residual tank system wastes.

• Effects on air and water quality from normal operations and reasonably foreseeable accidents, including long-term impacts on groundwater.

• Cumulative effects, including impacts from other past, present, and reasonably foreseeable actions at the Hanford Site.

• Effects on endangered species, archaeological/cultural/historical sites, floodplains and wetlands, and priority habitat.

• Effects from onsite and offsite transportation and from reasonably foreseeable transportation accidents.

• Socioeconomic impacts on surrounding communities.

• Disproportionately high and adverse effects on low-income and minority populations (Environmental Justice).

• Unavoidable adverse environmental effects.

• Short-term uses of the environment versus long-term productivity.

• Potential irretrievable and irreversible commitment of resources.

• The consumption of natural resources and energy, including water, natural gas, and electricity.

• Pollution prevention, waste minimization, and potential mitigative measures.

Related NEPA Decisions and Documents: The following lists DOE other NEPA documents that are related to this proposed Hanford Site Tank Retrieval and Closure EIS.

This notice is directed to the public in general. This notice may, however, be of interest to firms and individuals engaged in lead-based paint activities in North Dakota. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by the notice. If you have any questions regarding the applicability of this notice to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

On October 28, 1992, the Housing and Community Development Act of 1992, Public Law 102-550, became law. Title X of that statute was the Residential Lead-Based Paint Hazard Reduction Act of 1992. The Act amended TSCA (15 U.S.C. 2601 et seq .) by adding Title IV (15 U.S.C. 2681-92), titled “Lead Exposure Reduction.”

Section 402 of TSCA (15 U.S.C. 2682) authorizes and directs EPA to promulgate final regulations governing lead-based paint activities in target housing, public and commercial buildings, bridges and other structures. On August 29, 1996 (61 FR 45777) (FRL-5389-9), EPA promulgated final TSCA section 402/404 regulations governing lead-based paint activities in target housing and child-occupied facilities (a subset of public buildings). These regulations are to ensure that individuals engaged in such activities are properly trained, that training programs are accredited, and that individuals engaged in these activities are certified and follow documented work practice standards. Under section 404 (15 U.S.C. 2684), a State or Indian Tribe may seek authorization from EPA to administer and enforce its own lead-based paint activities program.

States and Tribes that choose to apply for program authorization must submit a complete application to the appropriate Regional EPA Office for review. EPA will review those applications within 180 days of receipt of the complete application. To receive EPA approval, a State or Tribe must demonstrate that its program is at least as protective of human health and the environment as the Federal program, and provides for adequate enforcement (section 404(b) of TSCA, 15 U.S.C. 2684 (b)). EPA's regulations (40 CFR part 745, subpart Q) provide the detailed requirements a State or Tribal program must meet in order to obtain EPA authorization.

A State may choose to certify that its lead-based paint activities program meets the requirements for EPA authorization, by submitting a letter signed by the Governor or the Attorney General stating that the program meets the requirements of section 404(b) of TSCA. Upon submission of such certification letter, the program is deemed authorized until such time as EPA disapproves the program application or withdrawals the application.

Section 404(b) of TSCA provides that EPA may approve a program application only after providing notice and an opportunity for a public hearing on the application. Therefore, by this notice EPA is soliciting public comment on whether North Dakota's application meets the requirements for EPA approval. This notice also provides an opportunity to request a public hearing on the application. If EPA finds that the program does not meet the requirements for authorization of a state program, EPA will disapprove the program application, at which time a notice will be issued in the Federal Register and the Federal program will be established in North Dakota.

This summary is provided in accordance with 40 CFR 745.324(a)(4). The applicant has provided the following summary of their lead program. The 2001 North Dakota Legislative session adopted changes to North Dakota's Century Code (NDCC) 23-25, “Air Pollution Control Law.” These changes authorized North Dakota's Department of Health (NDDH) to adopt and enforce certain requirements of 40 CFR part 745, subpart L, into the North Dakota Administrative Code (NDAC). The NDDH began amending the NDAC in January 2002. The amendments to the NDAC were adopted in accordance with the administrative rule practices requirements contained in NDCC 28-32 titled “Administrative Agencies Practice Act.”

On April 19, 2002, a public hearing was held to consider comments on the proposed administrative rule amendments. Comments were accepted for 30 days before and 30 days after the public hearing. A regulatory analysis including the classes of people probably affected, probable impact including economic impact, probable impact to the Department and alternative methods considered were prepared and made available prior to the start of the public comment period. In addition, the Department prepared a takings assessment (economic analysis) and a stringency determination in conjunction with the regulatory analysis.

On June 18, 2002, the State Health Council adopted the final rule. On August 1, 2002, the North Dakota Legislative Council published the North Dakota Administrative Code (NDAC) 33-15-24 titled “Standards for Lead-Based Paint Activities,” to adopt certain provisions of 40 CFR part 745, subpart L, into the North Dakota Administrative Code. The rule became effective September 1, 2002.

On August 15, 2002, a public hearing was held regarding North Dakota's intent to seek EPA authorization of its lead-based paint program. Comments were accepted for 30 days before and 30 days after the public hearing. No comments were received concerning North Dakota's intent to seek EPA authorization of its program. NDAC 33-15-24 references with minor changes the requirements contained in 40 CFR 745.220, “Scope and Applicability,” § 745.223, “Definitions,” § 745.225, “Accreditation of Training Programs: Target Housing and Child-Occupied Facilities,” § 745.226, “Certification of Individuals and Firms Engaged in Lead-Based Paint Activities: Target Housing and Child-Occupied Facilities,” § 745.227, “Work Practice Standards for Conducting Lead-Based Paint Activities: Target Housing and Child-Occupied Facilities,” and § 745.233, “Lead-Based Paint Activities Requirements.” Minor changes were made to these sections. The term “certification of companies” was replaced with “licensing of companies.” The term “certification” was reserved for individuals. The terminology change was made for clarification and ease of implementation when discussing requirements with the regulated community. All references to EPA grandfather clauses, which preceded the rulemaking, were deleted. Definitions including chewable surface, dripline, lead-based paint hazard, wipe sample, dust lead hazard, paint lead hazard, soil lead hazard, work practice requirement and renovation were adopted from 40 CFR 745.63, 745.65, and 745.83. Elevated blood lead level concentration was changed from 20 micrograms per deciliter to 10 micrograms per deciliter to follow the U.S. Center for Disease Control (CDC) guidelines. Notification requirements were added to NDAC 33-15-24-03. The notification requirements contain provisions for notification to the State prior to beginning lead-based paint abatement activities and prior to conducting lead-based paint abatement courses. Also, fees for certification of individuals, licensing of companies and accreditation of lead-based paint courses were established in NDAC 33-15-24-04.

Several other minor changes were made. These changes are discussed in more detail in a document titled, “Summary of Proposed North Dakota's Lead-Based Paint Rules, January 2002.” The North Dakota Lead Activities program will be administered by the North Dakota Department of Health, Division of Air Quality. The North Dakota Department of Health began implementing its program on the day the rule became effective, September 1, 2002. Additional information, copies of the documents referenced above and application forms for licensing and certification may be obtained by contacting the North Dakota Department of Health at (701) 328-5188.

In accordance with 40 CFR 745.324(d), “Program Certification,” the Governor of North Dakota submitted a self-certification letter to the EPA Administrator on September 26, 2002, certifying that the State program meets the requirements contained in 40 CFR part 745.324(e)(2)(i) and (e)(2)(ii). Included in the application was a letter from the Attorney General of North Dakota, certifying that the laws and regulations of the State provided adequate legal authority to administer and enforce TSCA section 402. Therefore, as of September 26, 2002, the State of North Dakota is authorized to administer and enforce the lead-based paint program under TSCA section 402, until such time as the Administrator disapproves the application or withdraws the State's Program authorization.

TSCA section 404(b) (15 U.S.C. 2684(b)) makes it unlawful for any person to violate, or fail or refuse to comply with, any requirement of an approved State or Tribal program. Therefore, EPA reserves the right to exercise its enforcement authority under TSCA against a violation of, or a failure or refusal to comply with, any requirement of an authorized State or Tribal program.

The official record for this action, as well as the public version, has been established under docket ID number 2002-0080. Copies of this notice, the State of North Dakota's authorization application, and all comments received on the application are available for inspection in the Region VIII office, from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket is located at EPA, Region VIII, and 8P-P3T, 999 18th St., Suite 300, Denver CO 80202.

Commenters are encouraged to structure their comments so as not to contain information for which CBI claims would be made. However, any information claimed as CBI must be marked “confidential,” “CBI,” or with some other appropriate designation, and a commenter submitting such information must also prepare a nonconfidential version (in duplicate) that can be placed in the public record. Any information so marked will be handled in accordance with the procedures contained in 40 CFR part 2. Comments and information not claimed, as CBI at the time of submission will be placed in the public record.

Electronic comments can be sent directly to EPA at: hasty.amanda@epa.gov. Electronic comments must be submitted as an ASCII file avoiding the use of special characters and any form of encryption. Comments and data will also be accepted on disks in WordPerfect 5.1/6.1 or ASCII file format. All comments and data in electronic form must be identified by the docket ID number. Electronic comments on this document may be filed online at many Federal Depository Libraries. Information claimed as CBI should not be submitted electronically.

The Congressional Review Act, 5 U.S.C. 801 as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before certain actions may take effect, the agency promulgating the action must submit a report, which includes a copy of the action, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this document in the Federal Register . This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and section 2.34 of the Commission's rules of practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of 30 days. The following analysis to aid public comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC home page (for December 20, 2002), on the World Wide Web, at “ http://www.ftc.gov/os/2002/12/index.htm. ” A paper copy can be obtained from the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., Washington, DC 20580, either in person or by calling (202) 326-2222.

Public comments are invited, and may be filed with the Commission in either paper or electronic form. Comments filed in paper form should be directed to: FTC/Office of the Secretary, Room 159-H, 600 Pennsylvania Avenue, NW., Washington, DC 20580. If a comment contains nonpublic information, it must be filed in paper form, and the first page of the document must be clearly labeled “confidential.” Comments that do not contain any nonpublic information may instead be filed in electronic form (in ASCII format, WordPerfect, or Microsoft Word) as part of or as an attachment to email messages directed to the following email box: consentagreement@ftc.gov. Such comments will be considered by the Commission and will be available for inspection and copying at its principal office in accordance with section 4.9(b)(6)(ii) of the Commission's rules of practice, 16 CFR 4.9(b)(6)(ii)).

The Federal Trade Commission has accepted, subject to final approval, an agreement containing consent orders (“Consent Agreement”) from Baxter International Inc. and Wyeth. The Consent Agreement contains an order to maintain assets to preserve, among other things, the viability, marketability, and competitiveness of the assets to be divested pending their divestiture. The Consent Agreement also contains a decision and order that is designed to remedy the anticompetitive effects of Baxter's proposed acquisition of the generic injectable pharmaceutical business of Wyeth. Under the terms of the Consent Agreement, the companies will be required to: (1) Divest all of Wyeth's assets relating to propofol to a Commission-approved acquirer; (2) terminate all of Baxter's rights and interests in GensiaSicor's pancuronium, vecuronium, and metoclopramide products, and divest all of its pancuronium, vecuronium, and metoclopramide assets to GensiaSicor; and (3) terminate Baxter's co-marketing agreement with Watson Pharmaceuticals, Inc. by March 14, 2004.

The proposed Consent Agreement has been placed on the public record for 30 days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission will again review the agreement and any comments received and will decide whether it should withdraw from the agreement or make final the agreement's proposed Consent Order.

Pursuant to an asset purchase agreement dated June 8, 2002, between Baxter and Wyeth, Baxter proposes to acquire from Wyeth substantially all of the assets related to Wyeth's generic injectable pharmaceutical business operated by Wyeth's ESI Lederle division for a total of $316 million in cash and assumed liabilities. The Commission's complaint alleges that the proposed acquisition, if consummated, would constitute a violation of section 7 of the Clayton Act, as amended, 15 U.S.C. 18, and section 5 of the Federal Trade Commission Act, as amended, 15 U.S.C. 45, in the markets for the manufacture and sale of: (1) Propofol; (2) pancuronium; (3) vecuronium; (4) metoclopramide; and (5) new injectable iron replacement therapies (“NIIRTs”). The proposed Consent Agreement would remedy the alleged violations by replacing in each of these markets the lost competition that would result from the merger.

Propofol is a general anesthetic commonly used for the induction and maintenance of anesthesia during surgical procedures and as a sedative for patients who are mechanically ventilated. Although there are other anesthetic agents, there are many benefits associated with propofol including the ability to quickly adjust the amount of sedation and its superior safety profile. Because propofol has a short duration profile, it is the preferred anesthetic agent for out-patient surgery. Annual U.S. sales of propofol total between $375 and $400 million.

The market for propofol is highly concentrated. AstraZeneca sells Diprivan®, the branded propofol product. Baxter markets the only generic propofol product, which is manufactured by GensiaSicor. Wyeth is seeking approval from the Food and Drug Administration (“FDA”) for its own propofol product, and it is one of the two best-positioned firms to enter the market.

Entry into the propofol market requires lengthy development efforts because of the product's unique characteristics. Propofol is considered to be one of the most difficult injectable products to develop. Indeed, only one company has been able to introduce a generic propofol product. Propofol is manufactured using a complex process, and it requires the use of a preservative. The preserved formulation used for Diprivan® and the preserved formulation used for the generic propofol marketed by Baxter are both protected by patents. For this reason, any new entrant would have to develop a propofol product using a different preservative that does not infringe existing patents. Once a company has developed a viable product, it is also required to conduct studies and obtain approval from the FDA to market propofol. Clinical development and FDA approval for this particular generic drug takes several years.

The proposed acquisition would cause significant anticompetitive harm in the U.S. market for the manufacture and sale of propofol by eliminating potential competition between Baxter and Wyeth. With only two firms currently supplying propofol to customers in this market (Baxter and AstraZeneca), entry by Wyeth and the one other firm well-positioned to enter would likely increase competition and reduce propofol prices. Accordingly, allowing Baxter to acquire Wyeth's generic injectable business likely would reduce the number of rivals in the future from four to three and force customers to pay higher prices for propofol.

The proposed Consent Agreement preserves future competition in the market for propofol by requiring the parties to divest Wyeth's propofol assets to Faulding Pharmaceutical Company no later than 10 business days after the acquisition. Faulding is well-positioned to continue Wyeth's development efforts and poses no separate competitive concerns as the acquirer of the propofol assets. If the Commission determines that Faulding is not an acceptable purchaser, or that the manner of divestiture is not acceptable, Baxter and Wyeth must divest the propofol assets to a Commission-approved buyer no later than 90 business days from the date the Order becomes final. Should they fail to do so, the Commission may appoint a trustee to divest the propofol assets. The Consent Agreement also requires the parties to license certain additional know-how that relates, but does not exclusively relate, to propofol to the propofol acquirer.

The Consent Agreement contains several provisions designed to ensure that the divestiture is successful. Baxter and Wyeth are required to provide transitional services to the propofol acquirer relating to regulatory approvals and manufacturing, and in responding to, and defending against, any lawsuit, investigation or proceeding relating to propofol. The Consent Agreement also requires Baxter and Wyeth to provide incentives to certain employees to continue in their positions until the divestiture is accomplished. For a period of six months from the date the assets are divested, Baxter and Wyeth will provide the propofol acquirer an opportunity to enter into employment contracts with individuals who have experience relating to Wyeth's propofol product. Baxter and Wyeth are also required to provide incentives to these individuals to accept employment with the propofol acquirer. For a period of one year following the divestiture date, Baxter and Wyeth are prohibited from hiring any employees of the acquirer of the propofol assets who have responsibility related to propofol. Finally, Baxter and Wyeth must take steps to maintain the confidentiality of confidential information related to propofol.

Pancuronium is a rapid-onset, long-acting neuromuscular blocking agent used to temporarily freeze muscles during surgery or mechanical ventilation and to assist in the intubation process. Although pancuronium is an older drug, doctors continue to use it because it is an effective and inexpensive product with a known side-effect profile. The market for pancuronium in the United States is approximately $2 million.

Pancuronium is a small and highly concentrated market. Baxter, Wyeth and Abbott are the only suppliers of generic injectable pancuronium in the United States. Currently, Baxter, which markets pancuronium pursuant to an exclusive agreement with GensiaSicor, accounts for almost half of U.S. sales of the drug. Post-acquisition, Baxter would account for 74% of the sales of pancuronium in the United States, and the post-acquisition Herfindahl-Hirschman Index (“HHI”) would be 6,152 points, representing a 2,496 point increase in the HHI. Post-acquisition, Abbott would be the only other supplier of pancuronium in the United States.

The market for the manufacture and sale of pancuronium is unlikely to attract new entrants because pancuronium is an older drug whose usage and price have declined over time. Although pancuronium is still an important drug, companies are unlikely to devote resources to developing an older drug with limited sales. Even if a supplier of other injectable drugs decided to develop pancuronium, it would be costly and time consuming to complete the necessary research and development, and to obtain the requisite approval from the FDA. Consequently, entry into the pancuronium market is not likely to occur in a timely manner, if at all.

The proposed acquisition would create a duopoly in the market for the manufacture and sale of pancuronium in the United States. Post-acquisition, Baxter and Abbott would be the only remaining suppliers of pancuronium. This is likely to lead to higher prices of pancuronium.

The proposed Consent Agreement preserves competition in the pancuronium market by requiring Baxter to terminate all of its rights and interests in GensiaSicor's pancuronium product and divest all of its pancuronium assets to GensiaSicor no later than five days after the acquisition. GensiaSicor is capable of marketing and selling its own pancuronium. It is a well recognized and respected company in the injectable pharmaceutical industry, and will be an able competitor in the market for the manufacture and sale of pancuronium.

Vecuronium is an intermediate-acting neuromuscular blocking agent that temporarily freezes muscles during surgery, mechanical ventilation, or intubation. Vecuronium is a popular neuromuscular blocking agent with a superior side effect profile. The market for the manufacture and sale of vecuronium in the United States is approximately $21 million.

The market for the manufacture and sale of vecuronium is highly concentrated. Baxter markets vecuronium under an exclusive supply agreement with GensiaSicor. Baxter and Wyeth were the two leading suppliers of vecuronium in the United States, with a combined market share of 53%, until Wyeth temporarily suspended its vecuronium production in 2001. Prior to the announcement of the acquisition, Wyeth planned to re-enter the vecuronium market in the near future. Post-acquisition, the HHI would be 3,598 points, representing a 1,364 point increase in the HHI. There are only three other suppliers of vecuronium in the United States. Organon continues to market its branded vecuronium, and Abbott and Bedford supply generic vecuronium products.

Entry into the market for the manufacture and sale of vecuronium is unlikely because it is an older drug with established suppliers, and it is a difficult drug to manufacture. Although vecuronium continues to be an important drug, companies are unlikely to devote resources to entering this market because existing suppliers have become entrenched, making it difficult for new entrants to capture meaningful market share. In addition, vecuronium is a complicated drug to manufacture. Because of the unique manufacturing process involved in making vecuronium, entry would take longer than two years and cost hundreds of thousands of dollars.

The proposed acquisition is likely to result in anticompetitive harm in the U.S. market for the manufacture and sale of vecuronium. Absent the proposed acquisition, Wyeth would have re-entered this market. By acquiring Wyeth's vecuronium, Baxter would likely delay or forego the re-launch of Wyeth's vecuronium and eliminate any associated price competition.

The proposed Consent Agreement preserves future competition in the market for vecuronium by requiring Baxter to terminate all of its rights and interests in GensiaSicor's vecuronium product and divest all of its vecuronium assets to GensiaSicor no later than five days after the acquisition.

Metoclopramide is an antiemetic used for the prevention and treatment of nausea and vomiting for patients undergoing certain types of chemotherapy and for post-operative treatment. Metoclopramide is an older antiemetic that continues to be used because it is effective, has a known safety profile, and is considerably cheaper than newer antiemetics. Annual U.S. sales of metoclopramide total approximately $13 million.

The market for metoclopramide is highly concentrated. Wyeth developed the branded metoclopramide product, Reglan®. Baxter is the exclusive supplier of GensiaSicor's metoclopramide product. Wyeth and Baxter together represent over half of the sales of metoclopramide in the United States. Post-acquisition, the HHI would be 3,852 points, an increase of 936 points above the pre-Acquisition HHI. Only two other companies supply metoclopramide in the United States: Abbott and Faulding.

New entry into the market for the manufacture and sale of metoclopramide is difficult, expensive and unlikely to occur. Metoclopramide is an older drug with small sales relative to newer injectable anti-emetics. Therefore, firms do not consider the market for the manufacture and sale of metoclopramide to be an attractive entry opportunity. Several manufacturers have already exited the market and none are interested in re-entering. Even if firms that have exited were interested in re-launching their drugs, re-entry would likely take such firms an estimated two years or more.

The proposed acquisition would cause significant anticompetitive harm in the U.S. market for the manufacture and sale of metoclopramide by reducing the number of suppliers from four to three. The combined entity would account for over half of all sales of metoclopramide in the United States. The proposed acquisition is likely to lead to higher prices.

The proposed Consent Agreement preserves competition in the metoclopramide market by requiring Baxter to terminate all of its interests in GensiaSicor's metoclopramide and divest all of its metoclopramide assets to GensiaSicor no later than five days after the acquisition.

NIIRTs are used to treat iron deficiency in patients undergoing hemodialysis. NIIRTs include both injectable iron gluconate and iron sucrose. Annual U.S. sales of NIIRTs total approximately $225 million.

The market for the manufacture and sale of NIIRTs is highly concentrated. Watson markets Ferrlecit®, the only injectable iron gluconate product available in the United States. American Regent markets Venofer®, the only injectable iron sucrose product in the United States. Watson recently entered into a co-promotional agreement with Baxter, pursuant to which Baxter promotes Ferrlecit®.

Entry into the market for the manufacture and sale of NIIRTs is very difficult and time consuming. Because of FDA-imposed New Chemical Entity exclusivity periods, the earliest that any company could file for regulatory approval of a generic iron gluconate product is February 2004. Similar provisions protect iron sucrose, though its exclusivity period expires in November 2003. Entry into the market for the manufacture and sale of NIIRTs is further complicated by a lack of raw material suppliers. Even if a new entrant were to locate a raw material supplier, both iron gluconate and iron sucrose are difficult products that would take more than two years to develop. Wyeth is the best-positioned firm to successfully develop a NIIRT product.

The proposed acquisition is likely to have anticompetitive effects in the market for the manufacture and sale of NIIRTs in the United States because it would eliminate potential competition between Baxter and Wyeth. The proposed acquisition would remove Wyeth as the best-positioned independent entrant into this market and prevent all associated price competition.

The proposed Consent Agreement preserves future competition in the market for the manufacture and sale of NIIRTs by requiring Baxter to terminate its co-marketing agreement with Watson within weeks of the expiration of Ferrlicit®'s New Chemical Entity exclusivity. This termination provides an incentive for Baxter to continue developing and ultimately launch the iron gluconate product that it will acquire from Wyeth.

Pursuant to the terms of the Order, the Commission has appointed William E. Hall as a Monitor Trustee to ensure Baxter's and Wyeth's compliance with all of the requirements of the Order. Mr. Hall has over 30 years of experience in the pharmaceutical industry and is well-respected in the industry. In order to ensure that the Commission remains informed about the status of the proposed divestitures and the transfers of assets, the Consent Agreement requires Baxter and Wyeth to file reports with the Commission periodically until the divestitures are accomplished.

The purpose of this analysis is to facilitate public comment on the proposed Consent Agreement, and it is not intended to constitute an official interpretation of the proposed Consent Agreement or to modify its terms in any way.

Under the Tribal Self-Governance Act of 1994 (Pub. L. 103-413), as amended by the Fiscal Year 1997 Omnibus Appropriations Bill (Pub. L. 104-208) the Director, Office of Self-Governance may select up to 50 additional participating tribes/consortia per year for the tribal self-governance program, and negotiate and enter into a written funding agreement with each participating tribe. The Act mandates that the Secretary submit copies of the funding agreements at least 90 days before the proposed effective date to the appropriate committees of the Congress and to each tribe that is served by the Bureau of Indian Affairs (BIA) agency that is serving the tribe that is a party to the funding agreement. Initial negotiations with a tribe/consortium located in a region and/or agency which has not previously been involved with self-governance negotiations, will take approximately two months from start to finish. Agreements for an October 1 to September 30 funding year need to be signed and submitted by July 1. Agreements for a January 1 to December 31 funding year need to be signed and submitted by October 1.

25 CFR parts 1000.10 to 1000.31 will be used to govern the application and selection process for tribes/consortia to begin their participation in the tribal self-governance program in fiscal year 2004 and calendar year 2004. Applicants should be guided by the requirements in these subparts in preparing their applications. Copies of these subparts may be obtained from the information contact person identified in this notice.

Tribes/consortia wishing to be considered for participation in the tribal self-governance program in fiscal year 2004 or calendar year 2004 must respond to this notice, except for those which are (1) currently involved in negotiations with the Department; (2) one of the 81 tribal entities with signed agreements; or (3) one of the tribal entities already included in the applicant pool as of the date of this notice.

The WBCA, which was signed into law on October 23, 1992, limits or prohibits imports of exotic bird species to ensure that their wild populations are not harmed by trade. It also encourages wild bird conservation programs in countries of origin by ensuring that all imports of such species into the United States are biologically sustainable and not detrimental to the survival of the species. A final rule published in the Federal Register on November 16, 1993 (58 FR 60524), implemented the prohibitions stipulated in the WBCA and provided permit requirements and procedures for some allowed exemptions.

Since the publication of the final rule of November 16, 1993, imports of all birds listed in the Appendices of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) as defined in the final rule are prohibited, except for (a) species included in an approved list; (b) specimens for which an import permit has been issued; (c) species from countries that have approved sustainable use management plans for those species; or (d) specimens from approved foreign captive-breeding facilities. We published a proposed rule in the Federal Register on March 17, 1994 (59 FR 12784), that would implement procedures for the establishment of an approved list of captive-bred species listed in the CITES Appendices that can be imported without a WBCA permit, criteria for including non-captive-bred (wild-caught) species in the approved list, and approval of foreign captive-breeding facilities.

A final rule published on January 24, 1996 (61 FR 2084), implemented procedures for the establishment of an approved list of non-captive-bred (wild-caught) species listed in the CITES Appendices that could be imported. The list of approved non-captive-bred species is contained in 50 CFR 15.33(b). For wild-caught CITES-listed birds to be on the approved list, we must determine that CITES is being effectively implemented for the species for each country of origin from which imports will be allowed, CITES-recommended measures are implemented, and there is a scientifically based management plan for the species that is adequately implemented and enforced. The scientifically based management plan must: (a) Provide for the conservation of the species and its habitat; (b) include incentives for conservation; (c) ensure that the use of the species is biologically sustainable and is well above the level at which the species might become threatened; (d) ensure that the species is maintained throughout its range at a level consistent with its role in the ecosystem; (e) address factors that include illegal trade, domestic trade, subsistence use, disease, and habitat loss; and (f) ensure that the methods of capture, transport, and maintenance of the species minimize the risk of injury or damage to health. For a species with a multinational distribution, we must also consider (a) whether populations of the species in other countries will be detrimentally affected by exports from the country requesting approval; (b) whether factors affecting conservation of the species are regulated throughout its range so that recruitment and/or breeding stocks will not be detrimentally affected by the proposed export; (c) whether the projected take and export will detrimentally affect breeding populations; and (d) whether the projected take and export will detrimentally affect existing enhancement activities, conservation programs, or enforcement efforts throughout the species' range. A species and country of export listed in 50 CFR 15.33(b) may be approved for three years, after which time the Service will have an opportunity to consider renewal of the approval.

On August 10, 2000, we published in the Federal Register (65 FR 49007) a notice of receipt of application for approval of a petition from the Management Authority of Argentina, Direccion de Fauna and Flora Silvestre, requesting that blue-fronted amazon parrots ( Amazona aestiva ) from an Argentine sustainable use management plan be added to the list of approved non-captive-bred species under the WBCA. We accepted comments on that petition until October 11, 2000.

Approval of Argentina's petition would result in the need to amend 50 CFR 15.33(b) by adding blue-fronted amazon parrots from Argentina to the list of approved non-captive-bred species. The amendment would allow the import into the United States of blue-fronted amazon parrots removed from the wild in Argentina under an approved sustainable use management plan, without a WBCA import permit. Along with this notice of availability, we will publish a proposed rule to allow the import into the United States of blue-fronted amazon parrots ( Amazona aestiva ) removed from the wild in Argentina under their approved sustainable use management plan.

Comments on the draft Environmental Assessment will be considered in our decision regarding whether to amend 50 CFR 15.33(b) by adding blue-fronted amazon parrots from Argentina to the list of approved non-captive-bred species. Written comments we have already received in response to the August 10, 2000, notice of receipt of application, have been retained and will be considered during this open comment period. Although we have used information already received in formulating the draft Environmental Assessment, we will address that information as well as any new comments received in our final Environmental Assessment, if necessary.

At the April 6, 2003, meeting, the Klamath Fishery Management Council may schedule short follow-up meetings to be held between April 7, 2003, and April 11, 2003, at the Red Lion Hotel at the Quay, 100 Columbia Street, Vancouver, Washington, where the Pacific Fishery Management Council will be meeting.

For background information on the Klamath Council, please refer to the notice of their initial meeting that appeared in the Federal Register on July 8, 1987 (52 FR 25639).

Background. —This investigation is being instituted in response to a petition filed on December 31, 2002, by Lapp Insulator Company LLC, Le Roy, NY; Newell Porcelain Co., Inc., Newell, WV; Victor Insulators, Inc., Victor, NY; and the IUE Industrial Division of the Communications Workers of America, AFL-CIO, Washington, DC.

Participation in the investigation and public service list. —Persons (other than petitioners) wishing to participate in the investigation as parties must file an entry of appearance with the Secretary to the Commission, as provided in sections 201.11 and 207.10 of the Commission's rules, not later than seven days after publication of this notice in the Federal Register . Industrial users and (if the merchandise under investigation is sold at the retail level) representative consumer organizations have the right to appear as parties in Commission antidumping investigations. The Secretary will prepare a public service list containing the names and addresses of all persons, or their representatives, who are parties to this investigation upon the expiration of the period for filing entries of appearance.

Limited disclosure of business proprietary information (BPI) under an administrative protective order (APO) and BPI service list. —Pursuant to section 207.7(a) of the Commission's rules, the Secretary will make BPI gathered in this investigation available to authorized applicants representing interested parties (as defined in 19 U.S.C. 1677(9)) who are parties to the investigation under the APO issued in the investigation, provided that the application is made not later than seven days after the publication of this notice in the Federal Register . A separate service list will be maintained by the Secretary for those parties authorized to receive BPI under the APO.

Conference. —The Commission's Director of Operations has scheduled a conference in connection with this investigation for 9:30 a.m. on January 21, 2002, at the U.S. International Trade Commission Building, 500 E Street, SW., Washington, DC. Parties wishing to participate in the conference should contact Fred Fischer (202-205-3179 or ffischer@usitc.gov ) not later than January 14, 2002, to arrange for their appearance. Parties in support of the imposition of antidumping duties in this investigation and parties in opposition to the imposition of such duties will each be collectively allocated one hour within which to make an oral presentation at the conference. A nonparty who has testimony that may aid the Commission's deliberations may request permission to present a short statement at the conference.

Written submissions. —As provided in sections 201.8 and 207.15 of the Commission's rules, any person may submit to the Commission on or before January 24, 2002, a written brief containing information and arguments pertinent to the subject matter of the investigation. Parties may file written testimony in connection with their presentation at the conference no later than three days before the conference. If briefs or written testimony contain BPI, they must conform with the requirements of sections 201.6, 207.3, and 207.7 of the Commission's rules. The Commission's rules do not authorize filing of submissions with the Secretary by facsimile or electronic means except to the extent provided by 201.8 of the Commission's rules, as amended by 67 FR 68063 (November 8, 2002).

In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigation must be served on all other parties to the investigation (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.

Authority: This investigation is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.

The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 5th Street, NW, Washington, DC 20549-0102 (tel. 202-942-8090).

1. Each of the Funds is either an open-end or closed-end management investment company registered under the Act. Several of the Funds are comprised of multiple series (the Funds and any existing or future series thereof, collectively, the “Lending Funds”). NBMI is the investment manager and administrator to the Funds and their series and the principal underwriter of those Funds that are open-end management investment companies. Neuberger Berman serves as the sub-adviser to the Funds. Pursuant to the sub-advisory agreement with NBMI, Neuberger Berman is compensated for providing investment research; however, all investment decisions for the Funds are made by NBMI. Both NBMI and Neuberger Berman are registered as investment advisers under the Investment Advisers Act of 1940 and broker-dealers under the Securities Exchange Act of 1934. NBMI and Neuberger Berman are wholly owned subsidiaries of Neuberger Berman Inc., a publicly owned holding company.

2. Applicants request that any relief granted pursuant to the application also apply to any other registered investment company or series thereof for which NBMI or any entity controlling, controlled by or under common control with NBMI serves as investment adviser. All existing entities that currently intend to rely on the order have been named as applicants. Any other existing or future entity that wishes to rely on the order will do so only in accordance with the terms and conditions of the application.

3. The Lending Funds propose to enter into an agency securities lending program (the “Securities Lending Program”). The agent for the Securities Lending Program will be an operating unit of Neuberger Berman (the “NB Securities Lending Group”). 2 The NB Securities Lending Group's activities as lending agent for the Lending Funds will be conducted under the supervision of investment management personnel of NBMI. Subject to the parameters set forth in procedures approved by the board of trustees or directors (“Board”) of each Lending Fund, NBMI will pre-approve eligible borrowers. In addition, NBMI will be responsible for determining what portion, if any, of assets of the Lending Funds will be allocated to securities lending activities, subject to each Lending Fund's fundamental or operating policies. NBMI will be responsible for investing all cash collateral received in respect of the securities loans.

4. As securities lending agent for the Lending Funds, the NB Securities Lending Group will be responsible for, among other things, selecting borrowers from the pre-approved list, entering into loans of pre-approved securities with pre-approved borrowers on pre-approved terms, and performing administrative or ministerial functions in connection with each Lending Fund's securities lending program. The NB Securities Lending Group will deliver loaned securities received from the Lending Funds to borrowers; arrange for the return of loaned securities to the Lending Funds at the termination of the loans; monitor daily the value of the loaned securities and collateral; request that borrowers add to the collateral when required by the loan agreement; and provide recordkeeping and accounting services necessary for the operation of the Securities Lending Program. 3

5. Securities loans generally are collateralized by U.S. Government securities, cash or letters of credit. When the collateral is cash, the lender invests the cash collateral during the loan period and, after paying the borrower an agreed upon interest rate, retains the remainder thereof, which is usually shared with the securities lending agent. If the collateral is a U.S. Government security or letter of credit, the borrower pays a lending fee, which is usually shared between the lender and the securities lending agent.

6. The applicants request relief to permit: (a) The Lending Funds to pay Neuberger Berman, or an entity controlling, controlled by, or under common control with Neuberger Berman, a fee based on a share of the revenue derived from securities lending activities; and (b) the Lending Funds to lend portfolio securities to Neuberger Berman and any broker-dealer, other than NBMI, that controls, is controlled by, or is under common control with, Neuberger Berman (collectively, the “Affiliated Broker-Dealers”).

1. Section 17(d) of the Act and rule 17d-1 thereunder prohibit any affiliated person of or principal underwriter for a registered investment company or any affiliated person of such person or principal underwriter, acting as principal, from effecting any transaction in connection with any joint enterprise or other joint arrangement or profit-sharing plan, in which the investment company participates unless the Commission has approved the transaction. Section 2(a)(3) of the Act defines an affiliated person of an investment company to include the investment company's adviser. As the Lending Funds' sub-adviser, Neuberger Berman may be deemed to be an affiliated person of the Lending Funds. Because a fee arrangement between a lending agent and a Lending Fund, under which compensation is based on a percentage of the revenue generated by securities lending transactions, may be a joint enterprise or other joint arrangement or profit sharing plan within the meaning of section 17(d) and rule 17d-1, applicants request an order to permit each Lending Fund to pay, and Neuberger Berman to accept, such fees in connection with services provided by Neuberger Berman to a Lending Fund.

2. Applicants propose that each Lending Fund adopt the following procedures to ensure that the proposed fee arrangement and the other terms governing the relationship with the NB Securities Lending Group will meet the standards of rule 17d-1:

a. In connection with the approval of the NB Securities Lending Group as lending agent for the Lending Funds, and implementation of the proposed fee arrangement, a majority of the Board of each Lending Fund (including a majority of the trustees or directors of each Lending Fund who are not “interested persons” as defined in section 2(a)(19) of the Act (the “Independent Trustees/Directors”)) will determine that (i) The contract with the NB Securities Lending Group is in the best interests of the Lending Fund and its shareholders; (ii) the services to be performed by the NB Securities Lending Group are appropriate for the Lending Fund; (iii) the nature and quality of the services to be provided by the NB Securities Lending Group are at least equal to those provided by others offering the same or similar services; and (iv) the fees for the NB Securities Lending Group's services are fair and reasonable in light of the usual and customary charges imposed by others for services of the same nature and quality.

b. In connection with the approval of the NB Securities Lending Group as lending agent for the Lending Funds and the initial implementation of the proposed fee arrangement, the Board of each Lending Fund will review competing quotes with respect to lending agency fees from at least three independent lending agents to assist the Board in making the findings referred to in paragraph (a) above.

c. Each Lending Fund's contract with the NB Securities Lending Group for lending agent services will be reviewed annually and will be approved for continuation only if a majority of the Board, including a majority of the Independent Trustees/Directors, makes the findings referred to in paragraph (a) above.

d. The Board, including a majority of the Independent Trustees/Directors, will (i) determine at each regular quarterly meeting on the basis of reports submitted by the NB Securities Lending Group that the loan transactions during the prior quarter were effected in compliance with the conditions and procedures set forth in the application and (ii) review not less frequently than annually the conditions and procedures for continuing appropriateness.

e. Each Lending Fund will (i) Maintain and preserve permanently in an easily accessible place a written copy of the procedures and conditions described in the application and (ii) maintain and preserve for a period not less than six years from the end of the fiscal year in which any loan transaction pursuant to the Securities Lending Program occurred, the first two years in an easily accessible place, a written record of each loan transaction setting forth a description of the security loaned, the identity of the person on the other side of the loan transaction, the terms of the loan transaction, and the information or materials upon which the determination was made that each loan was made in accordance with the procedures set forth above and the conditions to the application.

1. Section 17(a)(3) of the Act makes it unlawful for any affiliated person of or principal underwriter for a registered investment company, or an affiliated person of such a person (“second-tier affiliate”), acting as principal, to borrow money or other property from the registered investment company. Applicants state that because Neuberger Berman is sub-adviser to the Lending Funds, and the other Affiliated Broker-Dealers are under common control with Neuberger Berman and NBMI, an Affiliated Broker-Dealer may be considered an affiliated person, or a second-tier affiliate, of a Lending Fund. Accordingly, section 17(a)(3) would prohibit the Affiliated Broker-Dealers from borrowing securities from the Lending Funds.

2. As noted above, section 17(d) and rule 17d-1 generally prohibit joint transactions involving registered investment companies and their affiliates unless the Commission has approved the transaction. Applicants request relief under sections 6(c) and 17(b) of the Act exempting them from section 17(a)(3), and under section 17(d) and rule 17d-1 to permit the Lending Funds to lend portfolio securities to Affiliated Broker-Dealers.

3. Applicants state that each loan to an Affiliated Broker-Dealer by a Lending Fund will be made with a spread that is no lower than that applied to comparable loans to unaffiliated broker-dealers. 4 In this regard, applicants state that at least 50% of the loans made by the Lending Funds, on an aggregate basis, will be made to unaffiliated borrowers. Moreover, all loans will be made with spreads that are no lower than those set forth in a schedule of spreads established by the Board, including a majority of the Independent Trustees/Directors, or by a committee of the Board made up of Independent Trustees/Directors (the “Lending Committee”), and all transactions with Affiliated Broker-Dealers will be reviewed periodically by an officer of the Lending Fund. The Board, including a majority of the Independent Trustees/Directors, also will review quarterly reports on all lending activity.

Applicants agree that any order granting the requested relief will be subject to the following conditions:

1. The Securities Lending Program will comply with all present and future applicable Commission and staff positions regarding securities lending arrangements.

2. Approval of the Board, including a majority of the Independent Trustees/Directors, shall be required for the initial and subsequent approvals of the NB Securities Lending Group as lending agent for a Lending Fund, for the institution of all procedures relating to the Securities Lending Program, and for any periodic review of loan transactions for which the NB Securities Lending Group acted as lending agent.

3. Each Lending Fund will (i) Maintain and preserve permanently in an easily accessible place a written copy of the procedures (with any modifications) that are followed in connection with lending securities and (ii) maintain and preserve for a period not less than six years from the end of the fiscal year in which any loan transaction occurred, the first two years in an easily accessible place, a written record of each such loan transaction setting forth the number of shares loaned, the face amount of the securities loaned, the fee received (or rebate remitted), the identity of the borrower, the terms of the loan, and any other information or materials upon which the finding was made that each loan made to an Affiliated Broker-Dealer was fair and reasonable, and that the procedures followed in making such loan were in accordance with the other undertakings set forth in the application.

4. The Lending Funds, on an aggregate basis, will make at least 50% of their portfolio securities loans to unaffiliated borrowers.

5. a. All loans will be made with spreads no lower than those provided for in a schedule of spreads, which will be established and may be modified from time to time by the Board and by a majority of the Independent Trustees/Directors or by the Lending Committee (“Schedule of Spreads”). The Schedule of Spreads and any modifications thereto will be ratified by the full Board of each Lending Fund and by a majority of the Independent Trustees/Directors.

b. The Schedule of Spreads will provide for rates of compensation to the Lending Funds that are reasonable and fair, and that are determined in light of those considerations set forth in the application.

c. The Schedule of Spreads will be uniformly applied to all borrowers of the Lending Funds' portfolio securities, and will specify the lowest allowable spread with respect to a loan of securities to any borrower.

d. If a security is loaned to an unaffiliated borrower with a spread higher than the minimum provided for in the Schedule of Spreads, all comparable loans to an Affiliated Broker-Dealer will be made at no less than the higher spread.

e. Each Lending Fund's Securities Lending Program will be monitored on a daily basis by an officer of the Lending Fund who is subject to section 36(a) of the Act. This officer will review the terms of each loan to an Affiliated Broker-Dealer for comparability with loans to unaffiliated borrowers and conformity with the Schedule of Spreads, and will periodically, and at least quarterly, report his or her findings to the Lending Fund's Board, including a majority of the Independent Trustees/Directors, or the Lending Committee.

6. A Lending Fund will not make any loan to an Affiliated Broker-Dealer unless the income to the Lending Fund attributable to such loan fully covers the transaction costs, if any, incurred in making the loan.

7. The Boards of the Lending Funds, including a majority of the Independent Trustees/Directors, (a) will determine no less frequently than quarterly that all transactions with Affiliated Broker-Dealers effected during the preceding quarter were effected in compliance with the requirements of the procedures adopted by the Board and the conditions of any order that may be granted and that such transactions were conducted on terms that were reasonable and fair, and (b) will review no less frequently than annually such requirements and conditions for their continuing appropriateness.

8. The total value of securities loaned to any one borrower on the approved list will be in accordance with a schedule to be approved by the Board of each Lending Fund, but in no event will the total value of securities lent to any one Affiliated Broker-Dealer exceed 10% of the net assets of the Lending Fund, computed at market value.

For the Commission, by the Division of Investment Management, under delegated authority.

Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable Federal motor vehicle safety standards shall be refused admission into the United States unless NHTSA has decided that the motor vehicle is substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States, certified under 49 U.S.C. 30115, and of the same model year as the model of the motor vehicle to be compared, and is capable of being readily altered to conform to all applicable Federal motor vehicle safety standards.

Petitions for eligibility decisions may be submitted by either manufacturers or importers who have registered with NHTSA pursuant to 49 CFR Part 592. As specified in 49 CFR 593.7, NHTSA publishes notice in the Federal Register of each petition that it receives, and affords interested persons an opportunity to comment on the petition. At the close of the comment period, NHTSA decides, on the basis of the petition and any comments that it has received, whether the vehicle is eligible for importation. The agency then publishes this decision in the Federal Register .

NHTSA received petitions from registered importers to decide whether the vehicles listed in Annex A to this notice are eligible for importation into the United States. To afford an opportunity for public comment, NHTSA published notice of these petitions as specified in Annex A. The reader is referred to those notices for a thorough description of the petitions. No comments were received in response to these notices. Based on its review of the information submitted by the petitioners, NHTSA has decided to grant the petitions.

The importer of a vehicle admissible under any final decision must indicate on the form HS-7 accompanying entry the appropriate vehicle eligibility number indicating that the vehicle is eligible for entry. Vehicle eligibility numbers assigned to vehicles admissible under this decision are specified in Annex A.

Accordingly, on the basis of the foregoing, NHTSA hereby decides that each motor vehicle listed in Annex A to this notice, which was not originally manufactured to comply with all applicable Federal motor vehicle safety standards, is substantially similar to a motor vehicle manufactured for importation into and/or sale in the United States, and certified under 49 U.S.C. 30115, as specified in Annex A, and is capable of being readily altered to conform to all applicable Federal motor vehicle safety standards.