The Davy Crockett National Forest RAC proposes projects and funding to the Secretary of Agriculture under section 203 of the Secure Rural Schools and Community Self Determination Act of 2000. The purpose of the July 29, 2004, meeting is to discuss the operational requirements of the RAC, including a process to solicit and evaluate project proposals. These meetings are open to the public. The public may present written comments to the RAC. Each formal RAC meeting will also have time, as identified above, allocated for hearing public comments. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited.

A special use is defined in 36 CFR Part 251, Subpart B as “All uses of National Forest System lands, improvements, and resources, except those provided for in regulations governing the disposal of timber (part 223) and minerals (part 228) and the grazing of livestock (part 222) * * *” The Forest Service controls the occupancy and use of National Forest System lands, improvements, and resources through issuance of special use authorizations, such as permits, leases, or easements.

It is important to note that ski areas and organizational camps are the two types of special uses of National Forest System lands that are not addressed by the new final categorical exclusions. Ski area permits are addressed by an existing categorical exclusion (FSH 1909.15 sec. 31.12 para. 9). The ministerial issuance or amendment of an organizational camp special use authorization is not subject to the National Environmental Policy Act (16 U.S.C. 6231 et seq. ).

In April 1997, the Forest Service completed a study of its special uses program to identify changes needed to manage the program in a more efficient and customer service oriented manner. The study may be viewed at http://www.fs.fed.us/recreation/permits/final1.htm. The study revealed a large backlog of unprocessed special use applications involving administrative changes of ownership or control of authorized facilities or activities, or applications for a new special use authorization to replace an expired authorization. The study concluded that a primary cause of this backlog is the inconsistent application and misinterpretation of agency policy found in Forest Service Handbook (FSH) 1909.15, Environmental Policy and Procedures Handbook, Chapter 30, which addresses categorical exclusion from documentation in an environmental assessment (EA) or environmental impact statement (EIS). Some units were categorically excluding administrative changes to special use authorizations, while others preparing EAs, which emphasized a need for clarification.

On September 20, 2001, the Forest Service published a notice of proposed interim directive to Forest Service Handbook (FSH) 1909.15, Chapter 30, which would partially revise the agency's direction on the use of categorical exclusions (66 FR 48412). The intent of this proposed interim directive was to assist employees in interpreting and complying with the National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ) regulations for certain special use authorization actions, which can be categorically excluded from documentation in an environmental assessment or an environmental impact statement. The proposed interim directive would have added three new categories for special use authorizations involving administrative changes when no changes are proposed in the authorized facilities or activities. The proposal also included a modification of Handbook text to clarify agency policy concerning extraordinary circumstances.

Nearly 26,000 responses in the form of letters, postcards, and e-mail messages were received during the 60-day comment period. These comments came from private citizens, elected officials, and from groups and individuals representing businesses, private organizations, and Federal agencies. Responses consisted of over 800 original letters and over 25,000 form letters.

Public comment on the proposed interim directive addressed a wide range of topics, many of which were directed at general Forest Service management direction, particularly the management of roadless areas. Most comments revealed a significant split in opinion on the proposal. Many people opposed the proposed interim directive or recommended further restriction of the use of categorical exclusions, both in general and for those proposed for certain special use authorizations, while many others supported the proposed interim directive, or favored further expansion of the use of categorical exclusions. Some respondents agreed that existing direction concerning special use authorizations needed clarification.

Because of the volume and nature of comments received on the proposed interim directive, the agency separated the special use authorization categorical exclusions portion of the proposal from the clarification of extraordinary circumstances. On August 23, 2001, the Forest Service published a final interim directive to Forest Service Handbook (FSH) 1909.15, Chapter 30, which revised and clarified the agency's direction on extraordinary circumstances (67 FR 54622). Accordingly, this notice addresses only those comments received on the proposed categorical exclusions for certain special use authorization actions.

The proposed additions to the Handbook were intended to provide clear direction to agency personnel regarding certain types of special use authorization actions that the agency has concluded do not individually or cumulatively have a significant effect on the human environment, and therefore, may be categorically excluded from documentation in an EA or EIS. The proposed additions to sections 31.1b (now coded 31.12) and 31.2 included the following:

Two new categories of actions were proposed to be added to this section:

10. Amendment to an existing special use authorization during its term, involving no change in the authorized use and occupancy other than administrative changes. Examples include but are not limited to:

a. Amending a special use authorization to reflect administrative changes, such as changes to the land use rental fee or conversion to a new type of special use authorization for a particular occupancy or use (for example, converting a permit to a lease or easement).

b. Amending a special use authorization to include nondiscretionary environmental standards or updating a special use authorization to bring it into conformance with current laws or regulations (for example, new water quality standards that require monitoring).

11. Change in ownership of authorized improvements during the term of an existing special use authorization, involving no change in the authorized use and occupancy of National Forest System lands other than administrative changes. Examples include but are not limited to issuance of a new special use authorization to a new owner of the authorized improvements, when there is no change to the authorized use and occupancy.

One new category was proposed to be added to this section:

10. Issuance of a new special use authorization to the holder of an existing special use authorization when:

a. The existing special use authorization terminates at the end of its term;

b. The holder is in full compliance with the terms and conditions of the terminating special use authorization; and

c. There would be no change in the physical environment or facilities or the scope or intensity of the operations.

Based on further study and review of the comments received, the proposed special use authorization categorical exclusions have been revised and are printed in their entirety at the end of this notice.

Comment: Many respondents commented that there is no need for the proposed changes. Some respondents said that proposed actions can be analyzed with a concise EA, if necessary and, therefore, there is no need to create additional categorical exclusions. Others expressed strong disapproval of the agency's use of categorical exclusions altogether and recommended either further restricting their use, or a complete elimination of categorical exclusions. Conversely, other respondents supported the proposed categories and some advocated that the agency should make greater use of categorical exclusions.

Response: The CEQ regulations (40 CFR 1500.4(p)) encourage the appropriate use of categorical exclusions to reduce paperwork and unnecessary delays. The agency believes that its use of categorical exclusions has been and continues to be appropriate. The agency further believes that the time and expense required by even the most concise EA is not justified for those actions that qualify for categorical exclusion. Categorical exclusions are a legitimate tool for reducing excessive paperwork and to avoid allocating resources where they are not needed, thereby allowing the agency to devote more resources to environmental analysis and documentation for those requests for new special use authorizations that may have significant effects. Therefore, the agency will proceed with issuance of the categorical exclusions.

Comment: The preamble for the proposed categorical exclusions referred to a backlog of unprocessed special use authorizations resulting from inconsistent application of agency policy. One respondent commented that a backlog exists not due to inconsistent application of policy by the agency, but rather because demand is growing for special use authorizations.

Response: While it is true that there has been some increase in demand for new special use authorizations for new facilities or activities, the categorical exclusions make no changes to how the agency deals with new uses proposed on National Forest System lands. As identified in the preamble to the proposed categorical exclusions (66 FR 48412), the 1997 study determined that much of the backlog of applications was associated with proposed administrative actions related to ongoing or expiring special use authorizations.

Comment: Some respondents stated there was a real need for this proposal because uncertainty caused by not knowing whether or when an ongoing authorization was going to be replaced with a new authorization causes extreme financial and emotional hardship. They suggested that issuance of a new special use authorization to replace an existing authorization prior to its expiration will increase certainty and not disrupt ongoing uses and management of facilities and activities.

Response: The Forest Service agrees. The proposed categorical exclusion at section 31.2, paragraph 10 addressed issuing new special use authorizations when an existing special use authorization terminates at the end of its term. However, administratively, it would be more efficient to issue the new special use authorization before it expires. Therefore, this categorical exclusion has been modified to address existing special use authorizations that are due to expire, as well as those that have expired, when there is no change to the authorized facilities or in the scope or intensity of the authorized activity, when the applicant or holder is in full compliance with the terms and conditions of the authorization, and the only changes are administrative.

Due to the development of other agency categorical exclusions, the proposed categorical exclusion originally identified as paragraph 10 of section 31.2 is now paragraph 15 of section 31.2.

Comment: Many respondents believed the proposed categorical exclusions did not comply with the CEQ NEPA regulations because special use authorizations are used for a broad array of activities including actions that may have the potential for significant effects.

Response: The CEQ regulations define categorical exclusion as a “category of actions which do not individually or cumulatively have a significant effect on human environment * * *” (40 CFR 1508.4). The proposed categories of actions described specific administrative actions to existing special use authorizations that would involve no change in the authorized facilities or activities other than administrative changes. In other words, the categorical exclusion is designed to cover situations where administrative actions would not cause an individually or cumulatively significant effect on the human environment.

Discussions and follow-up took place with special use authorization specialists and environmental policy compliance specialists throughout the Forest Service regarding their experience with special use authorizations of all kinds, in all types of forests, over many years. The specialists involved represent over 800 years of combined experience in Forest Service special uses administration and environmental compliance. They reviewed and discussed the environmental effects of special use authorizations individually and cumulatively over time, of administrative changes, and of the extension of the term or time period of the occupancy and use in situations when the occupancy and use is conducted in accordance with the terms and conditions of the authorization. After that review, they concluded that the activities described in the final categorical exclusions do not have individual or cumulative significant effects. In those few situations where the potential for significant environmental effects arose, they concluded that the scoping and/or review of extraordinary circumstances in accordance with direction in FSH 1909.15, Section 30.3 resulted in preparation of either an EA or an EIS.

Comment: Some respondents believe that the proposed categorical exclusions did not comply with the CEQ regulations. Their reason was that when considering all of the actions that the Forest Service authorizes through special use authorizations, these actions may have cumulative effects.

Response: The actions that the agency is categorically excluding are specific administrative actions that do not result in significant effects on the environment. As described above, the agency has determined they do not have individually or cumulatively significant effects, and therefore, these categorical exclusions meet the CEQ regulations' definition of categorical exclusions.

Comment: Some respondents stated that many special use authorizations have never undergone NEPA analysis even though the authorizations may have resulted in significant impacts to the human environment. Respondents believed that using a categorical exclusion to amend a current authorization or to issue a new authorization to replace an existing special use authorization, which had not been analyzed under NEPA would not comply with the CEQ regulations.

Response: While it is true that there are some existing special use authorizations that were issued without undergoing a NEPA analysis, this situation occurred generally when the authorization was issued prior to enactment of NEPA and subsequent guidance. Categorical exclusions in paragraph 10 of section 32.12 and paragraph 15 of section 31.2 are for administrative actions that do not change the facilities nor increase the level of activity. The previously noted review of all types of special use authorizations, including those special use authorizations that have not previously been reviewed through the NEPA process, demonstrated that existing special uses in compliance with their authorizations have not had significant environmental effects. Agency experience shows that under the conditions described in the text of the categorical exclusions at the end of this notice, issuing or amending special use authorizations does not individually or cumulatively have significant effects, and are therefore in compliance with the CEQ regulations. The agency reviewed the proposed categorical exclusions and considered them in conjunction with the recently clarified NEPA procedures concerning extraordinary circumstances (67 FR 54622). The agency review determined its recently clarified NEPA procedures concerning extraordinary circumstances would identify any potentially significant effects on the human environment and the Forest Service would, therefore, preclude use of the categorical exclusions at paragraph 10 of section 32.12 and paragraph 15 of section 31.2 and would assure preparation of the appropriate level of NEPA analysis and documentation.

Comment: A considerable amount of comment revolved around the proposed categorical exclusions' effect on the public role in decisionmaking. Many respondents are concerned that the proposal would increase the use of categorical exclusions and thereby decrease the public's opportunity for involvement and oversight of the management of National Forest System lands. Other respondents think that scoping is not warranted for actions that may be categorically excluded.

Response: The Forest Service will continue to conduct scoping for all proposed actions subject to NEPA (FSH 1909.15, section 11). Through scoping, the Forest Service identifies any important issues, identifies interested and affected persons, and determines the appropriate level of public involvement and the appropriate level of environmental analysis and documentation. When the Forest Service contemplates categorically excluded a proposed action, scoping is used to help determine whether any extraordinary circumstances exist. An integral part of this scoping process is determining the appropriate level of public participation. Forest Service Handbook 1909.15, section 11, directs the Responsible Official to consider options for involving potentially interested and affected agencies, organizations, and persons in the analysis process commensurate with public interest in the proposed action. “Scoping is required on all proposed actions, including those that would appear to be categorically excluded.” (FSH 1909.15, section 30.3).

Comment: Respondents were also concerned that more decisions will be made through a categorical exclusion and, consequently, fewer decisions will be appealable.

Response: The two new categories being established are limited to amendment to or issuance to replace special use authorizations involving administrative changes or where there are no changes in the authorized facilities or increase in the scope or intensity of authorized activities. In the agency's experience, authorizations involving administrative adjustments or continuance of ongoing activities are less likely to be appealed than new actions. The actions covered by these categories are comparable to the types of activities that have been excluded from appeal in the agency's implementing regulations since enactment of the Appeal Reform Act (ARA). The ARA does not require that all actions by the Forest Service, regardless of their scope, be subject to appeal. To the contrary, Congress has delegated the responsibility for delineating which projects should be subject to appeal, and which should not. The agency's interpretation and implementation of the ARA is outlined in the Federal Register notice establishing the final rule (68 FR 33582, June 4, 2003). As previously noted, the agency will continue to conduct scoping for all proposed actions subject to NEPA and the responsible official will consider the appropriate level of public involvement commensurate with the level of public interest in a proposed action. The agency believes that including affected and interested individuals in project planning early in the process is more effective than applying the additional appeal procedures.

However, decisions to amend current special use authorizations that are addressed by these new final categorical exclusions may be subject to appeal by parties who hold a special use authorization (36 CFR Part 251 Subpart C). The appeal process in Subpart C is a structured, grievance oriented procedure that provides the elements of due process fundamental to resolving issues arising from a business or legal relationship between the Forest Service and an eligible appellant.

Comment: Some respondents who were opposed to the proposed categorical exclusions feel that any increase in the use of categorical exclusions represents a reduction in environmental review and the use of science in decisionmaking. As a result, they feel that the proposed categorical exclusions could result in adverse impacts to National Forest System lands and resources including roadless areas, wilderness areas, national recreation areas, threatened and endangered species, American Indian sacred sites, and archaeological sites.

Response: Categorical exclusions are to be used for routine actions that have been found by the agency through experience and environmental review to have no significant environmental effects either individually or cumulatively (40 CFR 1508.4). On August 23, 2002, the Forest Service published a final interim directive to Forest Service Handbook (FSH) 1909.15, Chapter 30, which provided direction regarding how actions, which may be categorically excluded, should be considered to determine if they warrant further analysis and documentation in an EA or EIS (67 FR 54622). Agency NEPA procedures require that all proposed actions to be categorically excluded from documentation in an EA or EIS must be reviewed for extraordinary circumstances, which includes appropriate surveys and analyses, using the best available science, attendant in appropriate consultation with Tribes and consultation with regulatory agencies, such as those required by the Endangered Species Act, the National Historic Preservation Act, Clean Water Act, and Clear Air Act. Accordingly, these categorical exclusions do not apply where there are extraordinary circumstances, such as adverse effects on the following: threatened and endangered species or their designated critical habitat; wilderness areas; inventoried roadless areas; wetlands; impaired waters; national recreation areas; and archaeological, cultural, or historic sites. Pursuant to 36 CFR 251.64, new special use authorizations to replace existing authorizations must comply with Federal and State laws and regulations and must be consistent with land management plan goals and objectives, and where appropriate, standards and guidelines set out in the plan.

Comment: Some respondents stated that they view the NEPA review process when an authorization expires as an opportunity to consider new information, which may bear on the environmental impact of an existing use or occupancy, and an opportunity to assess the impact of an authorization holder's facilities and/or activities. Respondents believed there would be less opportunity and inclination to evaluate these authorized facilities and activities under the proposed categorical exclusions. Provisions for the changes of ownership drew similar comments.

Response: The agency's procedures pursuant to NEPA require scoping on all proposed actions, including those that would appear to be categorically excluded (FSH 1909.15, section 11). This scoping includes consulting with experts and other agencies familiar with such actions and their direct, indirect, and cumulative effects. Using the information obtained through scoping, the Responsible Official then determines if the proposed action can be categorically excluded from documentation in an EIS or an EA or, alternatively, determines the type of document that should be prepared. Moreover, Forest Service regulations (36 CFR Part 251, subpart B) and policies (Forest Service Manual (FSM) 2700 and FSH 2709.11) governing special uses already require the agency to consider if significant new information or circumstances have developed prior to amending a special use authorization, or prior to replacing an existing authorization. These regulations and policies also specify that, if new significant information or circumstances have developed, then the appropriate environmental analysis must be completed and accompany the decision before an authorization can be amended or issued anew.

Comment: Some respondents questioned why the proposed categorical exclusions were being issued as an interim directive and how long it would be in effect or under what circumstances it would terminate.

Response: As was stated in the preamble for the proposed interim directive published in the September 20, 2001, Federal Register (66 FR 48412), the changes were proposed to be made through an interim directive for administrative efficiency. In further consideration, and in response to this comment, the final categorical exclusions are not issued as an interim directive but rather are incorporated directly into the text of Forest Service Handbook (FSH) 1909.15, Chapter 30.

Comment: Some respondents commented that not all special use authorization holders have equal impacts on the human environment, and therefore, the agency should not assume that a change in legal ownership does not trigger a NEPA analysis.

Response: All authorization holders, regardless of their legal status (e.g., partnership, individual, nonprofit organization, corporation) are responsible for complying with the applicable laws, regulations, and terms and conditions of the special use authorization. By regulation (36 CFR Part 251, Subpart B) and policy (FSM 2700 and FSH 2709.1), applicants for and holders of special use authorizations must be able to demonstrate that they have the technical and financial capability to undertake the use in compliance with the terms and conditions of the authorization. It is this demonstrated evidence of technical and financial capability, and not merely the status of ownership, which has a bearing on the applicant or holder qualifications, which the authorized officer must consider prior to amending or issuing a special use authorization. To highlight this requirement, and in response to this comment, the phrase “and the applicant or holder is in full compliance with the terms and conditions of the special use authorization” was added to the final categorical exclusions.

Consequently, a change in ownership or control of authorized facilities and activities during the term of an existing special use authorization, involving no increase in the authorized facilities or scope or intensity of authorized activities on National Forest System lands (i.e., the activity takes place in the same or smaller geographic area and the amount of the use does not increase), is an example of an administrative change that typically results in no significant effect on the human environment. These were among the types of special use authorizations examined by agency experts and determined to have no significant effects on the human environment, either individually or cumulatively.

Comment: Some respondents were confused by the language in the categorical exclusion proposed for paragraph 11 of section 31.1b because it referred to a change in ownership of “authorized improvements.” The respondents were concerned that this did not address situations where there was a change in ownership of uses, such as an outfitting business where there are no physical improvements on National Forest System lands.

Response: Based on respondents' concerns, the final categories do not use the phrase “authorized improvements.” The categorical exclusions now use the terms “authorized facilities” and “increases in the scope or intensity of authorized activities” to encompass both situations.

Comment: One respondent stated that the Forest Service must define the term “administrative change” to clarify that it refers only to clerical changes with no substantive changes to the terms of the authorization.They were concerned that it could be interpreted any number of ways. Another respondent asked the Forest Service to clarify terms used in the proposed categorical exclusions. The respondent suggested that the proposed categorical exclusions would not meet agency intent to facilitate consistent interpretation of policy.

Resonse: One final categorical exclusions contains examples of what is meant by the term “administrative changes.” Specifically, the categorical exclusion in paragraph 10 of section 31.12 includes “* * * administrative changes such as adjustment to the land use fees, inclusion of non-discretionary environmental standards or updating a special use authorization to bring it into conformance with current laws or regulations (for example, new monitoring required by water quality standards.)” In clarifying the term “administrative change,” the agency realized that the categorical exclusions proposed for paragraphs 10 and 11 of section 31.1b were very similar in that they addressed administrative changes which occur within the term of an existing authorization. The agency chose to combine the two proposed categorical exclusions (paragraphs 10 and 11 of section 31.1b) and their examples into one category in paragraph 10 of section 31.12 (formerly coded 31.1b) for clarity, and to reduce redundancy. In combining these two categories, the two examples under the proposed categorical exclusion in paragraph 10 were combined into one and a second example was added to illustrate the originally proposed categorical exclusion in paragraph 11. The words “extensions to the term of authorized” were added to the phrase “does not involve changes in the authorized facilities or increases in the scope or intensity of authorized activities” to clarify that the term of the authorization cannot change under the categorical exclusion in paragraph 10 of section 31.12. The word “changes” appeared twice in the same sentence in the proposed section 31.1b example, so in the second instance where the word “change” appears, it was replaced with “adjustment” for readability. In this same example, the word “rental” was found to be redundant and was also deleted to be consistent with agency special uses policy language.

In responding to this comment it became apparent that the proposed categories used different terminology to describe the same condition under which the categories could be used. The requirement for one category was, “no change in the use or occupancy” while the other category required “no change in the physical environment or facilities or the scope or intensity of operations.” The two phrases, while worded differently, had the same intent. Therefore, the categories have been reworded for consistency. Both final categories now utilize the phrase “does not involve changes in the authorized facilities or increases in the scope or intensity of authorized activities.”

In another editorial clarification, the conditions enumerated in the categorical exclusion proposed for paragraph 10 of section 31.2 were combined and incorporated into the final categorical exclusion in paragraph 15. In so doing, the phrase “authorization [that] expires at the end of its term” was replaced with “expired.” The words “for a new term” were added to replace “at the end of the term” for readability and clarity. The words “applicant or” were added before “holder” to recognize that in the case of an expired permit there would be an applicant but no holder.

These edits do not change the substance of the proposed categorical exclusions, but rather improve their clarity and readability.

These categorical exclusions add direction to guide field employees in the USDA Forest Service regarding procedural requirements for National Environmental Policy Act (NEPA) documentation for administration of special use authorizations. The Council on Environmental Quality does not direct agencies to prepare a NEPA analysis or document before establishing agency procedures that supplement the CEQ regulations for implementing NEPA. Agencies are required to adopt NEPA procedures that establish specific criteria for, and identification of, three classes of actions; those that require preparation of an environmental impact statement; those that require preparation of an environmental assessment; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). Categorical exclusions are part of those agency procedures, and therefore establishing categorical exclusions does not require preparation of a NEPA analysis or document. Agency NEPA procedures are internal procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3, and the USDA Forest Service has provided an opportunity for public review and has consulted with the Council on Environmental Quality during the development of these categorical exclusions. Furthermore, the determination that establishing categorical exclusions does not require NEPA analysis and documentation has been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. III. 1999), aff'd , 230 F.3d 947, 954-55 (7th Cir. 2000).

These final categorical exclusions have been reviewed under USDA procedures and Executive Order 12866, Regulatory Planning and Review. It has been determined that this is not a significant action. This action to issue agency direction will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This action will not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. Accordingly, this action is not subject to Office of Management and Budget review under Executive Order 12866.

Moreover, the final categorical exclusions have been considered in light of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), and it is hereby certified that the final categorical exclusions will not have a significant economic impact on a substantial number of small entities as defined by the act because they will not impose recordkeeping requirements on them; they will not affect their competitive position in relation to large entities; and will not affect their cash flow, liquidity, or ability to remain in the market.

The agency has considered these final categorical exclusions under the requirements of Executive Order 13132, Federalism, and has concluded that the final categorical exclusions conform with the federalism principles set out in this Executive order; will not impose any compliance costs on the States; and will 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.

Moreover, these final categorical exclusions do not have tribal implications as defined by Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, and therefore advance consultation with tribes was not required.

These final categorical exclusions have been analyzed in accordance with the principles and criteria contained in Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and it has been determined that the final categorical exclusions do not pose the risk of a taking of private property.

These final categorical exclusions have been reviewed under Executive Order 12988, Civil Justice Reform. After adoption of this policy as final, (1) all State and local laws and regulations that conflict with these final categorical exclusions or that would impede their full implementation will be preempted; (2) no retroactive effects would be given to this final policy; and (3) this final policy would not require administrative proceedings before parties may file suit in court challenging their provisions.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the agency has assessed the effects of these final categorical exclusions on State, local, and tribal governments and the private sector. These final categorical exclusions do not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.

These final categorical exclusions have been reviewed under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that these final categorical exclusions do not constitute a significant energy action as defined in the Executive order.

These final categorical exclusions do not contain any additional record- keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use, and therefore, impose no additional paperwork burden on the public. 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.

Having considered the comments received, the Forest Service is adopting procedures that clarify direction regarding administrative changes to special use authorizations where there are no changes in the authorized facilities or increases in the scope or intensity of authorized activities by creating two new categories of actions that can be excluded from documentation in an EA or an EIS. This change is being implemented through amendment to FSH 1909.15, Environmental Policy and Procedures Handbook, Chapter 30, which is effective upon publication of this notice in the Federal Register.

The Grain Inspection, Packers and Stockyards Administration (GIPSA) administers and enforces the Packers and Stockyards Act of 1921, as amended and supplemented (7 U.S.C. 181-229) (P&S Act). The P&S Act prohibits unfair, deceptive, and fraudulent practices by livestock market agencies, dealers, stockyard owners, meat packers, swine contractors, and live poultry dealers in the livestock, poultry, and meatpacking industries.

Section 302 of the P&S Act (7 U.S.C. 202) defines the term “stockyard” as follows:

Title: 7 CFR, Part 1955-B, Management of Property.

OMB Number: 0575-0110.

Expiration Date of Approval: January 31, 2005.

Type of Request: Extension of a currently approved information collection.

Abstract: This regulation prescribes the policies and procedures for the management of real property which has been taken into custody by the agency after abandonment by the borrower and management of real and chattel property which is in the agency inventory.

Estimate of Burden: Public reporting for this collection of information is estimated to average 28 minutes per response.

Respondents: Individuals or households, businesses or other for profit organizations and farms.

Estimated Number of Respondents: 155.

Estimated Number of Responses per Respondent: 1.

Estimated Number of Responses: 155.

Estimated Total Annual Burden on Respondents: 73.

Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the subject agencies, including whether the information will have practical utility; (b) the accuracy of the agencies' estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Renita Bolden, Regulations and Paperwork Management Branch, Support Services Division, U.S. Department of Agriculture, Rural Development, STOP 0742, 1400 Independence Ave., SW., Washington, DC 20250.

All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

On March 1, 2004, the Department published the notice of initiation of sunset review of the antidumping duty order on chloropicrin from China pursuant to section 751(c) of the Tariff Act of 1930, as amended (the “Act”). 1 The Department received Notice of Intent to Participate on behalf of Ashta Chemicals, Inc., Arvesta Corporation, Niklor Chemical Company, and Trinity Manufacturing Inc., (collectively, “the domestic interested parties”), within the deadline specified in section 351.218(d)(1)(i) of the Department's Regulations (“ Sunset Regulations ”). The domestic interested parties claimed interested party status under Section 771(9)(C) of the Act as U.S. producers of chloropicrin. We received a complete response from the domestic interested parties within the 30-day deadline specified in the Sunset Regulations under section 351.218(d)(3)(i). We received no response from any interested party respondents in this proceeding. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited, 120-day, sunset review of this antidumping duty order.

This order remains in effect for all Chinese manufacturers, producers, and exporters.

The merchandise subject to this antidumping duty order is chloropicrin, also known as trichloronitromethane. A major use of the product is as a pre-plant soil fumigant (pesticide). Such merchandise is currently classifiable under Harmonized Tariff Schedule (HTS) item number 2904.90.50. The HTS item number is provided for convenience and customs purposes. The written description remains dispositive.

All issues raised in this case are addressed in the “Issues and Decision Memorandum” (“Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to Jeffrey A. May, Acting Assistant Secretary for Import Administration, dated June 29, 2004, 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 if the finding were to be revoked. Parties can find a complete discussion of all issues raised in this review 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 “July 2004.” The paper copy and electronic version of the Decision Memorandum are identical in content.

We determine that revocation of the antidumping duty order on chloropicrin from China would be likely to lead to continuation or recurrence of dumping at the following percentage weighted-average percentage 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 the results and notice in accordance with sections 751(c), 752, and 777(i)(I) of the Act.

On June 2, 2003, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on tables and chairs from the PRC. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 68 FR 32727 (June 2, 2003). On June 16, 2003, the Department received a timely request from Wok & Pan Industry, Inc. (“Wok & Pan”) requesting that the Department conduct an administrative review of the antidumping duty order on tables and chairs for entries of subject merchandise made by Wok & Pan. On June 26, 2003, EJ Footwear, LLC requested the Department conduct an administrative review of entries of subject merchandise made by Dongguan Shichang Metals Factory Co., Ltd. (“Shichang”). On June 30, 2003, the Meco Corporation (“petitioner”) requested the Department conduct an administrative review of entries of subject merchandise exported by three Chinese producers/exporters: Feili Furniture Development Co., Ltd and Feili (Fujian) Co., Ltd (“Feili”), New-Tec Integration Co., Ltd. (“New-Tec”), and Shichang. On July 29, 2003, the Department initiated an administrative review of the antidumping duty order on tables and chairs from the PRC, for the period of December 3, 2001, to May 31, 2003, in order to determine whether merchandise imported into the United States is being sold at less than fair value with respect to these companies. See Notice of Initiation of Antidumping and Countervailing Duty Administrative Reviews, Requests for Revocation in Part and Deferral of Administrative Reviews, 68 FR 44524, July 29, 2003 (“Initiation Notice”).

On August 5, 2003, the Department issued antidumping duty questionnaires to the above-referenced four PRC companies. On September 3, 2003, we received a response to Section A of our antidumping duty questionnaire from Wok & Pan. On September 11, 2003, we received responses to Sections C and D of our antidumping duty questionnaire from Wok & Pan. On September 12, 2003, we received responses to Section A of our antidumping duty questionnaire from Feili, New-Tec, and Shichang. On September 30, 2003, we received responses to Sections C and D of our antidumping duty questionnaire from Feili, New-Tec, and Shichang.

On October 27, 2003, petitioner withdrew their request for review of Feili and New-Tec. On November 26, 2003, the Department rescinded, in part, its review of the administrative review of the antidumping duty order of tables and chairs with respect to Feili and New-Tec. See Certain Folding Metal Tables and Chairs From the People's Republic of China: Notice of Partial Rescission of First Antidumping Duty Administrative Review, 68 FR 66397 (November 26, 2003) and Memorandum to the File from Case Analysts to Joseph A. Spetrini on Rescission of 2001-2003 First Administrative Review of Folding Metal Tables and Chairs from the People's Republic of China, dated November 20, 2003 (“Rescission Memo”). As discussed in the Rescission Memo, Feili and New-Tec did not properly file their request for administrative review. Therefore, because the only parties that requested a review of these companies subsequently withdrew their request, the Department determined that rescission was appropriate.

On November 5, 2003, the Department rejected Wok & Pan's Section A, C, and D responses as improperly filed under 19 CFR 351.303, and requested that Wok & Pan re-file its Section A, C, and D responses and serve all interested parties. See Letter from Abdelali Elouaradia to Wok & Pan, dated November 5, 2003 (“Wok & Pan Refiling Letter”). Also on November 5, 2003, petitioner submitted comments on Shichang's questionnaire responses. Wok & Pan resubmitted its responses on November 14, 2003. On December 1, 2003, the Department rejected Wok & Pan's responses, as improperly filed ( see further discussion below). On December 3, 2003, we invited interested parties to comment on the Department's surrogate country selection and/or significant production in the potential countries, and to submit publicly-available information to value the factors of production. On December 10, 2003, we issued a supplemental questionnaire to Shichang. On January 5, 2004, we received Shichang's supplemental questionnaire response. On January 13, 2004, petitioner submitted comments on Shichang's supplemental questionnaire response.

On January 15, 2004, pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2) of the Department's regulations, the Department determined to extend the time limits for these preliminary results until June 29, 2004. See Notice of Extension of Preliminary Results of Antidumping Duty Review: Certain Folding Metal Tables and Chairs From the People's Republic of China, 69 FR 2329 (January 15, 2004). On January 28, 2004, we issued an additional supplemental questionnaire to Shichang.

On February 2, 2004, we received petitioner's and Shichang's comments on surrogate information with which to value the factors of production in this proceeding. None of the interested parties in this proceeding commented on the selection of a surrogate country. On February 9, 2004, we received Shichang's second supplemental questionnaire response.

The merchandise subject to this review consists of assembled and unassembled folding tables and folding chairs made primarily or exclusively from steel or other metal, as described below:

(1) Assembled and unassembled folding tables made primarily or exclusively from steel or other metal (“folding metal tables”). Folding metal tables include square, round, rectangular, and any other shapes with legs affixed with rivets, welds, or any other type of fastener, and which are made most commonly, but not exclusively, with a hardboard top covered with vinyl or fabric. Folding metal tables have legs that mechanically fold independently of one another, and not as a set. The subject merchandise is commonly, but not exclusively, packed singly, in multiple packs of the same item, or in five piece sets consisting of four chairs and one table. Specifically excluded from the scope of folding metal tables are the following:

a. Lawn furniture;

b. Trays commonly referred to as “TV trays”;

c. Side tables;

d. Child-sized tables;

e. Portable counter sets consisting of rectangular tables 36″ high and matching stools; and

f. Banquet tables. A banquet table is a rectangular table with a plastic or laminated wood table top approximately 28″ to 36″ wide by 48″ to 96″ long and with a set of folding legs at each end of the table. One set of legs is composed of two individual legs that are affixed together by one or more cross-braces using welds or fastening hardware. In contrast, folding metal tables have legs that mechanically fold independently of one another, and not as a set.

(2) Assembled and unassembled folding chairs made primarily or exclusively from steel or other metal (“folding metal chairs”). Folding metal chairs include chairs with one or more cross-braces, regardless of shape or size, affixed to the front and/or rear legs with rivets, welds or any other type of fastener. Folding metal chairs include: those that are made solely of steel or other metal; those that have a back pad, a seat pad, or both a back pad and a seat pad; and those that have seats or backs made of plastic or other materials. The subject merchandise is commonly, but not exclusively, packed singly, in multiple packs of the same item, or in five piece sets consisting of four chairs and one table. Specifically excluded from the scope of folding metal chairs are the following:

a. Folding metal chairs with a wooden back or seat, or both;

b. Lawn furniture;

c. Stools;

d. Chairs with arms; and

e. Child-sized chairs.

The subject merchandise is currently classifiable under subheadings 9401710010, 9401710030, 9401790045, 9401790050, 9403200010 and 9403200030 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and U.S. Customs and Border Protection (“CBP”) purposes, the Department's written description of the merchandise is dispositive.

As provided in section 782(i)(2) of the Tariff Act of 1930, as amended (the Act), and section 351.307 of the Department's regulations, we conducted verification of the questionnaire and supplemental responses of Shichang. We used standard verification procedures, including on-site inspection of the production facility of Shichang. Our verification results are outlined in the Memorandum to the File, through Abdelali Elouaradia, Program Manager, Verification of U.S. Sales and Factors of Production Information Submitted by Dongguan Shichang Metals Factory, Ltd. and Maxchief Investments, Ltd., dated April 23, 2004 (“Verification Report”). A public version of this report is on file in the Central Records Unit (“CRU”) located in room B-099 of the Main Commerce Building.

In proceedings involving non-market economy (“NME”) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty rate unless an exporter can affirmatively demonstrate an absence of government control, both in law ( de jure ) and in fact ( de facto ), with respect to its export activities. In this review, Shichang requested a separate company-specific rate.

To establish whether a company is sufficiently independent in its export activities from government control to be entitled to a separate, company-specific rate, the Department analyzes the exporting entity in an NME country under the test established in the Final Determination of Sales at Less Than Fair Value: Sparklers From the People's Republic of China, 56 FR 20588, 20589 (May 6, 1991) (“Sparklers”), and amplified by the Final Determination of Sales at Less Than Fair Value: Silicon Carbide From the People's Republic of China, 59 FR 22585, 22586-22587 (May 2, 1994) (“Silicon Carbide”).

The Department's separate-rate test is unconcerned, in general, with macroeconomic/border-type controls ( e.g. , export licenses, quotas, and minimum export prices), particularly if these controls are imposed to prevent dumping. The test focuses, rather, on controls over the investment, pricing, and output decision-making process at the individual firm level. See, e.g., Certain Cut-to-Length Carbon Steel Plate From Ukraine: Final Determination of Sales at Less Than Fair Value, 62 FR 61754, 61757 (November 19, 1997); Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 62 FR 61276, 61279 (November 17, 1997); and Honey From the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value, 60 FR 14725, 14726 (March 20, 1995). Shichang provided separate-rate information in its responses to our original and supplemental questionnaires. Accordingly, we performed a separate-rates analysis to determine whether this exporter is independent from government control ( see Notice of Final Determination of Sales at Less Than Fair Value: Bicycles From the People's Republic of China, 61 FR 56570 (April 30, 1996), for a summary of the process by which the Department conducts this analysis).

As stated above in the “Background” section, the Department rejected Wok & Pan's questionnaire responses as untimely and improperly filed. Wok & Pan filed its Sections A, C, and D responses on September 3, 2003 and September 11, 2003. However, as noted in the Wok & Pan Refiling Letter, Wok & Pan failed to serve all interested parties with hard copies of their responses in accordance with 19 CFR 351.303. Specifically, the Department noted that Section 351.303 (f)(1)(i) requires that “a person filing a document with the Department simultaneously must serve a copy of the document on all other persons on the service list by personal service or first class mail.” Therefore, the Department returned Wok & Pan's responses and gave Wok & Pan an opportunity to alleviate this discrepancy by re-filing its responses by November 13, 2003. The Department further noted in a letter from Abdelali Elouaradia to Wok & Pan dated November 6, 2003, that if Wok & Pan did not remedy its service problems by the deadline, the Department “may not be able to consider your Section A, C or D submissions in this administrative review.” The Department received Wok & Pan's submissions past the deadline, on November 14, 2003. Further, Wok & Pan failed to serve these responses on interested parties, despite explicit instructions to do so. On November 24, 2003, analyst John Drury spoke with counsel for all interested parties, regarding Wok & Pan's November 14, 2003, submission. Interested parties noted that they had not received copies of Wok & Pan's November 14, 2003, submission. See Memorandum to the File from Case Analyst John Drury: Telephone Conversation with Interested Parties regarding Wok & Pan's November 14, 2003, Submission. On December 1, 2003, the Department rejected Wok & Pan's questionnaire responses in accordance with 19 CFR 351.302(d) because they were not received in a timely manner, and were not properly served on interested parties pursuant to 19 CFR 351.303(f)(1)(i) and (ii), and informed Wok & Pan that it will be considered an interested party rather than a respondent for the duration of this administrative review. See Letter from Abdelali Elouaradia to Wok & Pan dated December 1, 2003. Therefore, the Department preliminarily determines that, for the purpose of these preliminary results, Wok & Pan has not responded to our requests for information regarding separate rates and therefore separate rates treatment is not warranted. See, e.g., Natural Bristle Paint Brushes and Brush Heads From the People's Republic of China; Preliminary Results of Antidumping Duty Administrative Review, 61 FR 57389 (November 6, 1996). Consequently, consistent with the statement in our notice of initiation, we find that, because Wok & Pan does not qualify for a separate rate, it is deemed to be part of the PRC-entity. See Administrative Review Initiation. See also “The PRC-wide Rate and Use of Facts Otherwise Available” section below.

Based on a review of the responses we have concluded that Shichang is owned by a Taiwanese national and incorporated in the British Virgin Islands. Therefore, we determine that no separate-rate analysis is required for this company.

Shichang and Wok & Pan were given the opportunity to respond to the Department's questionnaire. We received questionnaire responses from Shichang, and we have calculated a separate rate for Shichang. The PRC-wide rate applies to all entries of subject merchandise except for entries Fromaves\notices.xml PRC producers/exporters that have their own calculated rate.

As discussed above, Wok & Pan is appropriately considered to be part of the PRC-wide entity. Therefore, we determine it is necessary to review the PRC-wide entity because it did not provide information necessary to the instant proceeding. In doing so, we note that section 776(a)(1) of the Act mandates that the Department use the facts available if necessary information is not available on the record of an antidumping proceeding. In addition, section 776(a)(2) of the Act provides that if an interested party or any other person: (A) Withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782; (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), the Department shall, subject to section 782(d) of the Act, use the facts otherwise available in reaching the applicable determination under this title. Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department shall promptly inform the party submitting the response of the nature of the deficiency and shall, to the extent practicable, provide that party with an opportunity to remedy or explain the deficiency. Section 782(e) of the Act provides that the Department shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all the applicable requirements established by the administering authority. Because the PRC-wide entity provided no information, we determine that sections 782(d) and (e) of the Act are not relevant to our analysis.

According to section 776(b) of the Act, if the Department finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may use information that is adverse to the interests of the party as facts otherwise available. 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 URAA, H. Doc. No. 316, 103d Cong., 2d Session at 870 (1994). Furthermore, “an affirmative finding of bad faith on the part of the respondent is not required before the Department may make an adverse inference.” Antidumping Duties; Countervailing Duties: Final Rule, 62 FR 27296, 27340 (May 19, 1997).

As above stated, the PRC-wide entity did not respond to our requests for information. Because the PRC-wide entity did not respond to our request for information in the form or manner requested, we find it necessary, under section 776(a)(2) of the Act, to use facts otherwise available as the basis for the preliminary results of review for the PRC-wide entity.

In addition, pursuant to section 776(b) of the Act, we find that the PRC-wide entity failed to cooperate by not acting to the best of its ability to comply with a request for information. As noted above, the PRC-wide entity failed to respond in the proper format or in a timely manner to the Department's questionnaire, despite repeated requests that it do so. Thus, because the PRC-wide entity refused to participate fully in this proceeding, we find it appropriate to use an inference that is adverse to the interests of the PRC-wide entity in selecting from among the facts otherwise available. By doing so, we ensure that the companies that are part of the PRC-wide entity will not obtain a more favorable result by failing to cooperate than had they cooperated fully in this review.

An adverse inference may include reliance on information derived from the petition, the final determination in the investigation, any previous review, or any other information placed on the record. See section 776(b) of the Act. It is the Department's practice to assign the highest rate from any segment of the proceeding as total adverse facts available when a respondent fails to cooperate to the best of its ability. See, e.g., Stainless Steel Wire Rods from India, Final Results and Partial Rescission of Antidumping Duty Administrative Review, 69 FR 29923, 29924 (May 26, 2004).

In accordance with the Department's practice, we have preliminarily assigned to the PRC-wide entity (including Wok & Pan) the rate of 70.71 percent as adverse facts available. This rate is the PRC-wide rate established in the LTFV investigation based on information contained in the petition. See Memorandum to the File from Abdelali Elouaradia to Richard Weible: Final Determination in the Antidumping Investigation of Folding Metal Tables and Chairs from the People's Republic of China: Total Facts Available Corroboration Memorandum, dated April 17, 2002 (“Final AFA Memo”). In selecting a rate for adverse facts available, the Department selects a rate that is sufficiently adverse “as to effectuate the purpose of the facts available rule to induce respondents 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).

We note that information from a prior segment of this proceeding constitutes “secondary information,” and section 776(c) of the Act provides that, when the Department relies on such secondary information rather than on information obtained in the course of a review, the Department shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is described in the SAA as “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.” See SAA at 870. The SAA states that the independent sources may include published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation or review. The SAA also clarifies that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value. See SAA at 870. As noted 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”), to corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information used.

We note that in the LTFV investigation, the Department corroborated the information in the petition that formed the basis of the 70.71 percent PRC-wide entity rate. See Final AFA Memo. Specifically, in the LTFV investigation, the Department compared the prices in the petition to the prices submitted by individual respondents for comparable merchandise. For normal value (“NV”), we compared petitioners” factor-consumption data to data reported by respondents. See Final AFA Memo.

In order to satisfy the corroboration requirements under section 776(c) of the Act, in the instant review, we reviewed the Department's corroboration of the petition rates from the LTFV investigation. See Memorandum to the File from Case Analyst, through Edward C. Yang, Office Director, The Use of Adverse Facts Available for non-responsive companies ( i.e. , Wok & Pan Industry, Inc. (“Wok & Pan”)), and the PRC-wide entity; Corroboration of Secondary Information, dated June 29, 2004 (“AFA & Corroboration Memo”). No information has been presented to call into question the reliability of the information from the investigation. Therefore, we find that the petition information is reliable. See AFA & Corroboration Memo at 1 and Attachment 2.

We further note that, with respect to the relevance aspect of corroboration, the Department stated in 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 TRBs at 61 FR 57392. See also Fresh Cut Flowers from Mexico; Final 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). The rate used is the rate currently applicable to all exporters subject to the PRC-wide rate. Further, as noted above, there is no information on the record that the application of this rate would be inappropriate in this administrative review or that the margin is not relevant. Thus, we find that the information is relevant. Therefore, the Department preliminarily determines that the PRC-wide entity rate of 70.71 is reliable and relevant, and has probative value within the meaning of section 776(c) of the Act.

To determine whether Shichang's sales of the subject merchandise to the United States were made at prices below normal value, we compared their United States prices to normal values, as described in the “United States Price” and “Normal Value” sections of this notice.

For Shichang, we based United States price on export price (“EP”) in accordance with section 772(a) of the Act, because the first sale to an unaffiliated purchaser was made prior to importation, and constructed export price (“CEP”) was not otherwise warranted by the facts on the record. We calculated EP based on the packed FOB price from the exporter to the first unaffiliated customer in the United States. Where applicable, we deducted foreign inland freight, and brokerage and handling from the starting price (gross unit price), in accordance with section 772(c) of the Act.

Section 773(c)(1) of the Act provides that the Department shall determine NV using a factors-of-production methodology if (1) the merchandise is exported from an NME country, and (2) available information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act.

In every case conducted by the Department involving the PRC, the PRC has been treated as an NME country. Pursuant to section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. Shichang did not contest such treatment in this review. Accordingly, we have applied surrogate values to the factors of production to determine NV for Shichang. See Factors of Production Valuation Memorandum for the Preliminary Results of the First Administrative Review of the Antidumping Duty Order on Folding Metal Tables and Chairs from the People's Republic of China, dated June 29, 2004 (“Factor Valuation Memo”). A public version of this memorandum is on file in the CRU located in room B-099 of the Main Commerce Building.

We calculated NV based on factors of production and market economy prices paid by Shichang for certain inputs in accordance with section 773(c)(4) of the Act and section 351.408(c) of our regulations. Consistent with the LTFV investigation of this order, we determine that India (1) is comparable to the PRC in level of economic development, and (2) is a significant producer of comparable merchandise. See Notice of Final Determination of Sales at Less Than Fair Value: Folding Metal Tables and Chairs from the People's Republic of China, 67 FR 20090 (April 24, 2002) (“Final Determination”). Accordingly, we valued the factors of production for inputs purchased from a NME using publicly available information from India. In selecting the surrogate values for inputs where Shichang did not purchase from a market economy supplier, we considered the quality, specificity, and contemporaneity of the data, in accordance with our practice. Where appropriate, we adjusted Indian import prices by adding foreign inland freight expenses in order to derive delivered prices. When we used Indian import values to value inputs sourced domestically by PRC suppliers, we added to Indian surrogate values a surrogate freight cost calculated using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest port of export to the factory. This adjustment is in accordance with the Court of Appeals for the Federal Circuit's decision in Sigma Corp. v. United States, 117 F. 3d 1401, 1408 (Fed. Cir. 1997).

We valued raw material inputs using the weighted-average unit import values derived from the World Trade Atlas, which notes that its data was obtained from the Ministry of Commerce of India (“Indian Import Statistics”) for the time period corresponding to the POR (see Factor Valuation Memo). When we relied on Indian import values to value inputs, in accordance with the Department's practice, we excluded imports from both NMEs and countries deemed to have generally available export subsidies ( i.e. , Indonesia, Korea, and Thailand) from our surrogate value calculations. For those Indian rupee values not contemporaneous with the POR, we adjusted for inflation using wholesale price indices published in the International Monetary Fund's International Financial Statistics.

For the inputs used in the production of subject merchandise that were purchased from a market economy supplier and paid for in a convertible currency, § 351.408(c)(1) of the Department's regulations stipulates that “where a factor is purchased from a market economy supplier and paid for in a market economy currency, the Secretary normally will use the price paid to the market economy supplier.” For the inputs that Shichang demonstrated that it purchased the raw material from a market economy supplier and paid in convertible currency, we used the purchase price paid, as reported in Shichang's Second Supplemental questionnaire response dated February 9, 2004, at Exhibit 6, and Verification Exhibit 16. Modifications were made to these prices as described in the Proprietary Memorandum to the File from Anya Naschak through Edward C. Yang: Preliminary Results Analysis Memorandum for Dongguan Shichang Metals Factory Co., Ltd., and Maxchief Investments Ltd., dated June 29, 2004 (“Analysis Memo”).

It is, however, the Department's practice to exclude the market economy purchase price if it has reason to believe or suspect these prices may be dumped or subsidized prices. See Final Determination for the 1998-99 Administrative Review of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China, 66 FR 1953 (January 10, 2001) (“TRBs 2001”), Issues and Decision Memorandum at Comment 1. Petitioners have placed on the record documentation indicating that the cold rolled steel purchased by Shichang is being sold at dumped prices (for a description of the input and its country of origin, see Analysis Memo). Respondents did not respond to this information on the record. Therefore, the Department has determined that for these preliminary results, Shichang's purchases of cold rolled steel were purchased at dumped prices. Because the Department's practice is to exclude prices that are dumped or subsidized, the Department has calculated the value for this input using a surrogate value derived from Indian Import Statistics, rather than the purchase price paid.

In accordance with § 351.301(c)(3)(ii) of the Department's regulations, for the final results of an antidumping administrative review, interested parties may submit publicly available information to value factors of production within 20 days after the date of publication of these preliminary results.

We made currency conversions pursuant to section 351.415 of the Department's regulations at the rates certified by the Federal Reserve Bank.

We preliminarily determine that the following antidumping duty margins exist:

For details on the calculation of the antidumping duty weighted-average margin for Shichang, see Analysis Memo. A public version of this memorandum is on file in the CRU.

Pursuant to section 351.212(b), the Department calculates an assessment rate for each importer of the subject merchandise. Upon issuance of the final results of this review, if any importer-specific assessment rates calculated in the final results are above de minimis ( i.e. , at or above 0.50 percent), the Department will issue appraisement instructions directly to CBP to assess antidumping duties on appropriate entries by applying the assessment rate to the entered value of the merchandise. For assessment purposes, we calculated importer-specific assessment rates for the subject merchandise by aggregating the antidumping duties due for all U.S. sales to each importer and dividing the amount by the total quantity of the sales to that importer. If these preliminary results are adopted in our final results of review, we will direct CBP to assess the resulting rate against the total quantity for the subject merchandise on each of Shichang's importer's/customer's entries during the POR.

The following cash-deposit rates will be effective upon publication of the final results of this review for all shipments of tables and chairs from the PRC entered, or withdrawn from warehouse, for consumption on or after publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For subject merchandise exported by Shichang, the cash-deposit rate will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; (2) for previously investigated or reviewed companies not listed above that have separate rates, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (3) the cash-deposit rate for all other PRC exporters (including Wok & Pan) will be the “PRC-wide” rate established in the final results of this review; and (4) the cash deposit rate for all other non-PRC exporters will be the rate applicable to the PRC exporter that supplied that exporter.

These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.

The Department will disclose calculations performed in connection with the preliminary results of this review within five days of the date of publication of this notice in accordance with section 351.224(b) of the Department's regulations. Any interested party may request a hearing within 30 days of publication of this notice in accordance with section 351.310(c) of the Department's regulations. Any hearing would normally be held 37 days after the publication of this notice, or the first workday thereafter, at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the Federal Register to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, 14th Street and Constitution Avenue, NW, Washington, DC 20230. Requests for a public hearing should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) to the extent practicable, an identification of the arguments to be raised at the hearing.

Unless otherwise notified by the Department, interested parties may submit case briefs within 30 days of the date of publication of this notice in accordance with section 351.309(c)(ii) of the Department's regulations. As part of the case brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. Rebuttal briefs, which must be limited to issues raised in the case briefs, must be filed within five days after the case brief is filed. If a hearing is held, an interested party may make an affirmative presentation only on arguments included in that party's case brief and may make a rebuttal presentation only on arguments included in that party's rebuttal brief. Parties should confirm by telephone the time, date, and place of the hearing within 48 hours before the scheduled time. The Department will issue the final results of this review, which will include the results of its analysis of issues raised in the briefs, not later than 120 days after the date of publication of this notice.

This notice also serves as a preliminary reminder to importers of their responsibility under section 351.402(f) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during these review periods. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

This administrative review and this notice are published in accordance with sections 751(a)(2)(B) and 777(i)(1) of the Act.

On January 7, 2004, we published in the Federal Register the Notice of Initiation of New Shipper Antidumping Duty Review: Fresh Garlic from the People's Republic of China (69 FR 903) for entries of subject merchandise grown by Kaifeng Wangtun Fresh Vegetables Factory (Wangtun) and exported by Jinxiang Shanyang Freezing Storage Co., Ltd. (Shanyang). The period of review (POR) is November 1, 2002, through October 31, 2003.

On June 4, 2004, the petitioners (the Fresh Garlic Producers Association and its individual members) submitted comments addressing the Department's approach to the valuation of the factors of production (FOP). In that submission, the petitioners contend that the Department's current FOP methodology does not account for certain significant cost components ( e.g. , the cost of leasing farmland). Furthermore, the petitioners argue that many of the consumption factors reported by the respondents in segments of this proceeding are substantially disparate and anomalous, and thus call into question the basic credibility of the data. As such, citing the Department's decision in Final Determination of Sales at Less Than Fair Value: Certain Frozen Fillets from the Socialist Republic of Vietnam , 68 FR 37116 (June 23, 2003), the petitioners argue that the Department should determine the normal value of garlic based on a surrogate value for raw ( i.e. , unprocessed) garlic, rather than valuing upstream input factors in order to determine normal value.

We have addressed the petitioners' comments with respect to the valuation of land leasing. For a further discussion, see the “Factors of Production” section below and the memorandum from Brian Ellman to the File entitled “Analysis for the Preliminary Results of the New Shipper Review of the Antidumping Duty Order on Fresh Garlic from the People's Republic of China: Jinxiang Shanyang Freezing Storage Co., Ltd., and Wangtun Fresh Vegetable Factory,” dated June 28, 2004 ( Preliminary Results Analysis Memorandum ). With respect to the petitioners' other comments concerning the Department's FOP methodology, we continue to evaluate these comments and we will consider them further for the final results of this new shipper review. We invite the respondent to comment on the petitioners' June 4, 2004, submission in its case brief to the Department.

The products subject to the antidumping duty order are all grades of garlic, whole or separated into constituent cloves, whether or not peeled, fresh, chilled, frozen, provisionally preserved, or packed in water or other neutral substance, but not prepared or preserved by the addition of other ingredients or heat processing. The differences between grades are based on color, size, sheathing, and level of decay.

The scope of this order does not include the following: (a) garlic that has been mechanically harvested and that is primarily, but not exclusively, destined for non-fresh use; or (b) garlic that has been specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed.

The subject merchandise is used principally as a food product and for seasoning. The subject garlic is currently classifiable under subheadings 0703.20.0010, 0703.20.0020, 0703.20.0090, 0710.80.7060, 0710.80.9750, 0711.90.6000, and 2005.90.9700 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 scope of this proceeding is dispositive. In order to be excluded from the antidumping duty order, garlic entered under the HTSUS subheadings listed above that is (1) mechanically harvested and primarily, but not exclusively, destined for non-fresh use or (2) specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed must be accompanied by declarations to U.S. Customs and Border Protection (CPB) to that effect.

As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), we verified information provided by Wangtun and Shanyang using standard verification procedures, including on-site inspection of the producer's facilities, the examination of relevant sales and financial records, and the selection of original documentation containing relevant information. Our verification results are outlined in the public version of the verification report dated June 28, 2004, which is on file in the Central Records Unit (CRU), Room B-099 of the main Department of Commerce building. See the memorandum to the File from Brian Ellman entitled “Verification of the Response of Jinxiang Shanyang Freezing Storage Co., Ltd., and Wangtun Fresh Vegetable Factory in the Antidumping Duty New Shipper Review of Fresh Garlic from the People's Republic of China,” dated June 28, 2004 ( Verification Report ).

The Department of Commerce (the Department) has treated the People's Republic of China (PRC) as a non-market-economy (NME) country in all past antidumping investigations (see, e.g., Bulk Aspirin From the People's Republic of China: Final Determination of Sales at Less Than Fair Value , 65 FR 33805 (May 25, 2000), and Certain Non-Frozen Apple Juice Concentrate from the People's Republic of China: Notice of Final Determination of Sales at Less Than Fair Value , 65 FR 19873 (April 13, 2000)) and in prior segments of this proceeding. A designation as an NME remains in effect until it is revoked by the Department. See section 771(18)(C) of the Act. Accordingly, there is a rebuttable presumption that all companies within the PRC are subject to government control and, thus, should be assessed a single antidumping duty rate.

It is the Department's standard policy to assign all exporters of the merchandise subject to review in NME countries a single rate unless an exporter can affirmatively demonstrate an absence of government control, both in law ( de jure ) and in fact ( de facto ), with respect to exports. To establish whether a company is sufficiently independent to be entitled to a separate, company-specific rate, the Department analyzes each exporting entity in an NME country under the test established in Sparklers from the People's Republic of China: Final Determination of Sales at Less than Fair Value , 56 FR 20588 (May 6, 1991) ( Sparklers ), as amplified in Silicon Carbide from the People's Republic of China: Notice of Final Determination of Sales at Less Than Fair Value , 59 FR 22585 (May 2, 1994) ( Silicon Carbide ).

Shanyang provided separate-rate information in its responses to our original and supplemental questionnaires. Accordingly, we performed a separate-rates analysis to determine whether the exporter is independent from government control of their export and sales-related activities (see Bicycles From the People's Republic of China: Final Determination of Sales at Less Than Fair Value , 61 FR 56570 (April 30, 1996)).

The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate: (1) an absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; (3) any other formal measures by the government decentralizing control of companies.

Shanyang has placed on the record a number of documents to demonstrate absence of de jure control including the “Foreign Trade Law of the People's Republic of China” and the “Administrative Regulations of the People's Republic of China Governing the Registration of Legal Corporations.” The Department has analyzed such PRC laws and found that they establish an absence of de jure control. See, e.g., Certain Preserved Mushrooms From the People's Republic of China: Preliminary Results of New Shipper Review , 66 FR 30695, 30696 (June 7, 2001). We have no information in this proceeding that would cause us to reconsider this determination.

Typically, the Department considers four factors in evaluating whether a 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 its management; (4) whether the respondent retains the proceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses. See Silicon Carbide at 22587.

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 at 22586-22587. Therefore, the Department has determined that an analysis of de facto control is critical in determining whether respondents are, in fact, subject to a degree of governmental control which would preclude the Department from assigning separate rates.

Shanyang reported that it is a limited-liability company owned by private investors. It has asserted the following: (1) There is no government participation in setting export prices; (2) sales managers and authorized employees have the authority to bind sales contracts; (3) it does not have to notify any government authorities of management selections; (4) there are no restrictions on the use of export revenue; (5) it is responsible for financing its own losses. Shanyang's questionnaire responses do not suggest that pricing is coordinated among exporters. During our analysis of the information on the record we found no information indicating the existence of government control. Consequently, we preliminarily determine that Shanyang has met the criteria for the application of a separate rate.

Section 776(a)(2) of the Act provides that, if, in the course of an antidumping review, 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, (C) significantly impedes a proceeding under the antidumping statute, or (D) provides such information but the information cannot be verified, then the Department shall, subject to sections 782(d) and (e) of the Act, use the facts otherwise available in reaching the applicable determination.

As discussed in detail in the Verification Report and the Preliminary Results Analysis Memorandum , while reviewing the companies' attendance and payroll records in the context of verifying the reported labor factors, we found that both Shanyang and Wangtun did not include in the figures reported to the Department the hours worked by certain full-time employees whose roles had been identified as being related to the production of fresh garlic. See Verification Report at pages 25-27.

Despite our attempts to verify the information that was submitted on behalf of both companies (and which is necessary to the determination), we could not verify certain information pertaining to labor factors, as required under section 782(i) of the Act. Section 776(a)(2)(D) of the Act warrants the use of facts otherwise available in reaching a determination when information is provided by a respondent but that information cannot be verified. We determine that, in accordance with section 776(a)(2)(D) of the Act, the use of facts available is appropriate for calculating the labor hours worked by Shanyang for processing activities ( i.e. , unskilled processing labor) and by Wangtun for production activities ( i.e. , indirect growing labor) because we were unable to verify the information submitted by the companies with respect to labor. Consequently, we have revised Shanyang's and Wangtun's reported labor factors to include the total hours worked by all employees whose roles have been identified as being related to the production of subject merchandise. For a detailed discussion and the revised calculation of Shanyang's and Wangtun's labor-usage factors of production, see the Preliminary Results Analysis Memorandum at Attachments 1 and 2.

In accordance with section 772(a) of the Act, we have used the export-price methodology because the sale to the unaffiliated purchaser was made outside the United States prior to importation of the subject merchandise into the United States. We calculated the export price based on the price from Shanyang and Wangtun to the unaffiliated U.S. customer. We made deductions, where appropriate, from the gross unit price to account for inland freight and brokerage and handling. Because certain domestic charges, such as those for foreign inland freight, were provided by NME companies, we valued those charges based on surrogate rates from India. See the memorandum from Lyn Johnson to the File entitled “Factors Valuations for the Preliminary Results of Review for Jinxiang Shanyang Freezing Storage Co., Ltd.,” dated June 28, 2004 ( FOP Memorandum ).

For a more detailed explanation of the company-specific adjustments that we made in the calculation of the dumping margin for these preliminary results, see the Preliminary Results Analysis Memorandum .

When investigating imports from an NME country, section 773(c)(1) of the Act directs the Department to base normal value, in most circumstances, on the NME producer's factors of production valued in a surrogate market-economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the factors of production, the Department shall use, to the extent practicable, the prices or costs of factors of production in one or more market-economy countries that are at a level of economic development comparable to that of the NME country and are significant producers of comparable merchandise. The sources of the surrogate factor values are discussed under the “Factor Valuations” section below.

The Department has determined that India, Indonesia, Sri Lanka, the Philippines, Morocco, and Egypt are countries comparable to the PRC in terms of economic development. See the memorandum to Laurie Parkhill regarding the request for a list of surrogate countries dated May 19, 2004. In addition to being among the countries comparable to the PRC in economic development, India is a significant producer of the subject merchandise. We have used India as the surrogate country and, accordingly, have calculated normal value using Indian prices to value the PRC producer's factors of production, when available and appropriate. We have obtained and relied upon publicly available information. See the memorandum to the File regarding the selection of a surrogate country dated June 28, 2004.

In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of this new shipper review, interested parties may submit publicly available information to value the factors of production until twenty days following the date of publication of these preliminary results.

Section 773(c)(1) of the Act provides that the Department shall determine the normal value using a factors-of-production methodology if (1) the merchandise is exported from an NME country and (2) the information does not permit the calculation of normal value using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. Factors of production include the following elements: (1) hours of labor required, (2) quantities of raw materials employed, (3) amounts of energy and other utilities consumed, and (4) representative capital costs. We used factors of production reported by the producer or exporter for materials, energy, labor, and packing. We valued all the input factors using publicly available information, as discussed in the “Surrogate Country” and “Factor Valuations” sections of this notice.

In accordance with section 773(c) of the Act, we calculated normal value based on factors of production reported by the producer or exporter for the POR. To calculate normal value, we multiplied the reported per-unit factor quantities by publicly available surrogate values from India. In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs in order to make them delivered prices. We calculated the freight costs based on the shortest reported distance from the domestic supplier to the factory, in accordance with Sigma Corporation v. United States , 117 F. 3d 1401, 1407-08 (CAFC 1997). For a detailed description of the surrogate values selected for these preliminary results, see the FOP Memorandum .

For those Indian-rupee values not contemporaneous with the POR, we adjusted for inflation using wholesale price indices for India published in the International Monetary Fund's International Financial Statistics .

Except as specified below, we valued raw-material inputs using the weighted-average- unit import values derived from the World Trade Atlas Trade Information System (Internet Version 4.3e) ( WTA ). The source of the WTA data for India is the Directorate General of Commercial Intelligence and Statistics of the Indian Ministry of Commerce and Industry. We selected WTA data contemporaneous to the POR. We valued garlic seed based on pricing data from the NHRDF News Letter , published by India's National Horticultural Research and Development Foundation. We valued diesel fuel based on data from the International Energy Agency's Energy Prices & Taxes: Quarterly Statistics (Third Quarter, 2003). We valued water using the averages of municipal water rates from Asian Development Bank's Second Water Utilities Data Book: Asian and Pacific Region (October 1997).

For labor, consistent with 19 CFR 351.408(c)(3), we used the PRC regression-based wage rate that appears on the website for Import Administration (http://ia.ita.doc.gov/wages/01wages/01wages.html). The source of this wage-rate data is the International Labor Organization's Yearbook of Labour Statistics 2002 (Geneva, 2002), chapter 5B: Wages in Manufacturing.

The respondent claimed an adjustment for revenue earned on the sale of garlic sprouts. We found that sprouts are a by-product of garlic and deducted an offset amount from normal value for this by-product. As a surrogate value for the sale of sprouts in the PRC, we used an average of Indian wholesale prices for green onions published by the Azadpur Agricultural Produce Marketing Committee.

We valued the truck rate based on an average of truck rates that were published in the Indian publication, Chemical Weekly , during the POR. We valued foreign brokerage and handling charges based on a value calculated for the less-than-fair-value investigation of certain hot-rolled carbon steel flat products from India.

We used the financial information of the tea company, Parry Agro Industries Limited (Parry Agro). We found this company to be representative of the financial experiences of the producer and exporter because Parry Agro produced and processed a product that was not highly processed or preserved prior to its sale. Thus, in order to value factory overhead, selling, general and administrative expenses (SG&\A), and profit, we used rates derived from Parry Agro's 2001/2002 financial statements. We examined the annual report of Parry Agro and were not able to determine whether Parry Agro performed packing activities associated with the tea it produced as its financial information does not indicate that it incurred any packing expenses. Furthermore, in the event Parry Agro did incur packing expenses, we do not know the extent to which such expenses are included in the values we obtained from its income statement for purposes of calculating the surrogate financial ratios because packing expenses are not included as a line item or distinguished or described in the income statement in any way. For the preliminary results of this review, in calculating the amount of overhead, SG&A, and profit included in the normal value, we have determined not to apply the surrogate financial ratios to production costs that include packing expenses. We have, however, calculated separate surrogate values for materials and labor associated directly with packing fresh garlic from the PRC and added these packing expenses to the calculation of normal value.

We have valued electricity consumption based on Wangtun's reported use of electricity unrelated to obtaining water ( e.g. , for cold storage located at the production/processing facility). We applied the usage figure reported by the respondent to a surrogate value for electricity that we obtained from the International Energy Agency's Energy Prices & Taxes: Quarterly Statistics (Third Quarter, 2003).

Because we are valuing electricity consumption in the manner described, we removed the line item for “Power and Fuel” costs from the numerator of the surrogate financial ratio for selling, general, and administrative (SG&A) expenses. Further, in calculating the amount of overhead, SG&A expenses, and profit included in the normal value, we have not applied the surrogate financial ratios to production costs that include electricity costs.

In response to the petitioners' comments pertaining to the valuation of the cost of land, upon further analysis of this issue, we have determined that this factor is an important component in the cost build-up of normal value and is not reflected in the financial ratios calculated from Parry Agro's income statements. As such, we have valued the cost of land using information contained in a Notification of Policy for Land Revenue issued by the State of Rajasthan, India.

Based on all available information, we have determined that this land-lease rate serves as the most reliable surrogate value for calculating a cost for leasing the farmland used to grow the subject merchandise. We have converted the values provided by the Indian state government and calculated a per-mu annual land-lease cost. In our margin calculation, we have added the cost of leasing land to fixed overhead. See the Preliminary Results Analysis Memorandum .

We preliminarily determine that the following dumping margin exists for the period November 1, 2002, through October 31, 2003:

Case briefs or other written comments in at least six copies must be submitted to the Assistant Secretary for Import Administration no later than thirty days after the publication of these preliminary results. Pursuant to 19 CFR 351.309(d)(2), rebuttal briefs are due no later than five days after the submission of case briefs. A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. In accordance with 19 CFR 351.310, we will hold a public hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If we receive a request for a hearing, we plan to hold the hearing three days after the deadline for submission of the rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230. Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within thirty days after the date of publication of the preliminary results of this review in the Federal Register . Requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.

The Department will publish the final results of this new shipper review, including the results of its analysis of issues raised in any case or rebuttal briefs, within 90 days of publication of this notice. See 19 CFR 351.214(h)(i)(1).

Upon completion of this new shipper review, the Department will determine, and CBP will assess, antidumping duties on all appropriate entries. The Department will issue appropriate assessment instructions directly to CBP upon completion of this review. If these preliminary results are adopted in our final results of review, we will direct CBP to assess the antidumping duties applicable to sales of the subject merchandise on each of the entries of this exporter's importer/customer during the POR.

The following cash-deposit requirements will be effective upon publication of the final results of the new shipper review for shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) for subject merchandise grown by Kaifeng Wangtun Fresh Vegetables Factory and exported by Jinxiang Shanyang Freezing Storage Co., Ltd., the cash-deposit rate will be that established in the final results of this review; (2) for all other subject merchandise exported by Jinxiang Shanyang Freezing Storage Co., Ltd., the cash-deposit rate will be the PRC-wide rate, which is 376.67 percent; (3) for all other PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash-deposit rate will be the PRC-wide rate of 376.67 percent; and (4) for all non-PRC exporters of subject merchandise, the cash-deposit rate will be the rate applicable to the PRC exporter that supplied that exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during the period of this review. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

We are issuing and publishing the preliminary results of this new shipper review in accordance with sections 751(a)(2)(B)(iv) and 777(i) of the Act.

On March 1, 2004, the Department published the notice of initiation of the second sunset review of the antidumping duty order on greige polyester cotton printcloth from the People's Republic of China pursuant to section 751(c) of the Act. 1 The Department received the Notice of Intent to Participate on behalf of Alice Manufacturing Company, Inc. and Mount Vernon Mills, Inc., the domestic interested parties, within the deadline specified in section 351.218(d)(1)(i) of the Department's Regulations (“Sunset Regulations”). The domestic interested parties claimed interested party status under section 771(9)(C) of the Act, as domestic producers of greige polyester cotton printcloth. We received complete substantive responses from all domestic interested parties within the 30-day deadline specified in the Sunset Regulations under section 351.218(d)(3)(i). We received nothing from respondent interested parties. As a result, pursuant to section 751(c)(5)(A) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited (120-day) sunset review of this finding.

The scope remains unchanged from the Final Results of Expedited Sunset Review; Greige Polyester Cotton Printcloth from the People's Republic of China, 64 FR 13399 (March 18, 1999). The merchandise subject to this antidumping order is greige polyester cotton printcloth, other than 80 x 80 type. Greige polyester cotton printcloth is of chief weight cotton, 2 unbleached and uncolored printcloth. The term “printcloth” refers to plain woven fabric, not napped, not fancy or figured, of singles yarn, not combed, of average yarn number 43 to 68, 3 weighing not more than 6 ounces per square yard, of a total count of more than 85 yarns per square inch, of which the total count of the warp yarns per inch and the total count of the filling yarns per inch are each less than 62 percent of the total count of the warp and filling yarns per square inch. This merchandise is currently classifiable under Harmonized Tariff Schedule (HTSUS) item 5210.11.6060. The HTSUS item numbers are provided for convenience and U.S. Customs purposes. The written description remains dispositive.

All issues raised in this case are addressed in the “Issues and Decision Memorandum” (“Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to Jeffrey A. May, Acting Assistant Secretary for Import Administration, dated June 29, 2004, 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 if the finding were to be revoked. Parties can find a complete discussion of all issues raised in this review 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 “July 2004.” The paper copy and electronic version of the Decision Memo are identical in content.

We determine that revocation of the antidumping duty finding on Greige Polyester Cotton Printcloth from the People's Republic from China would be likely to lead to continuation or recurrence of dumping at the following weighted-average percentage 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 the results and notice in accordance with sections 751(c), 752, and 777(i)(1) of the Act.

The period of review (“POR”) is June 1, 2002, through May 31, 2003.

On June 5, 2000, the Department of Commerce (“the Department”) published in the Federal Register (65 FR 35606) the antidumping duty order on certain non-frozen apple juice concentrate from the People's Republic of China (“PRC”). On June 2, 2003, the Department notified interested parties of the opportunity to request an administrative review of this order (68 FR 32727). On June 27, 2003, Sanmenxia Lakeside Fruit Juice Co., Ltd. (“Lakeside”) and Xian Yang Fuan Juice Co., Ltd. (“Xian Yang”) requested an administrative review. On June 30, 2003, Xian Asia Qin Fruit Co., Ltd. (“Xian Asia”), Shaanxi Hengxing Fruit Juice Co., Ltd. (“Hengxing”), and Gansu Tongda Fruit Juice Beverage Company (“Gansu Tongda”) requested an administrative review.

On June 30, 2003, Yantai Oriental Juice Co., Ltd. (“Oriental”), SDIC Zhonglu Fruit Juice Co., Ltd. (“Zhonglu”), and Shaanxi Haisheng Fresh Fruit Juice Co., Ltd. (“Haisheng”) requested an administrative review for the period June 1, 2002, through May 31, 2003, but also requested that the review be deferred for one year pursuant to 19 CFR 351.213(c). In the same letter they also requested a revocation pursuant to 19 CFR 351.222(e). On July 9, 2003, Lakeside also submitted a letter requesting a one-year deferral of the third administrative review. We note that Oriental, Zhonglu, Haisheng and Lakeside were subsequently excluded from the order pursuant to the February 13, 2004, Notice of Amended Final Determination and Amended Order Pursuant to Final Court Decision, (69 FR 7197).

On July 29, 2003, we published a notice of initiation of this antidumping duty administrative review (68 FR 44524) for Gansu Tongda, Hengxing, Xian Asia and Xian Yang. In the same notice we also deferred the administrative review for Zhonglu, Oriental, Lakeside and Haisheng.

On August 6, 2003, the Department sent questionnaires to the legal representatives of Gansu Tongda, Hengxing, Xian Asia and Xian Yang and a copy to the Embassy of the PRC in the United States.

On August 18, 2003, Xian Yang and Xian Asia requested that the Department rescind their administrative reviews. On August 26, 2003, Hengxing requested that the Department rescind its administrative review. Pursuant to 19 CFR 351.213(d)(1), because Xian Asia, Xian Yang, and Hengxing withdrew their requests for review within 90 days of the date of publication of the notice of initiation of this review and no other party requested a review of these companies, we are rescinding the administrative reviews of Xian Asia, Xian Yang, and Hengxing.

We received the Section A response from Gansu Tongda (“the respondent”) on October 17, 2003, and the Sections C and D responses on November 14, 2003. We sent out a supplemental questionnaire on December 22, 2003, and received a response on January 12, 2004.

On January 6, 2004, the Department invited interested parties to comment on surrogate country selection and to provide publicly available information for valuing the factors of production. We received a response from Gansu Tongda on February 17, 2004.

On March 4, 2004, we published Certain Non-Frozen Apple Juice Concentrate From the People's Republic of China: Extension of Time Limit for the Preliminary Results of the 2002-2003 Antidumping Duty Administrative Review, (69 FR 10204) and sent a supplemental questionnaire on March 4, 2004. We received the supplemental response on April 8, 2004. We sent a third supplemental questionnaire on April 20, 2004, and received a response on April 28, 2004.

The product covered by this order is certain non-frozen apple juice concentrate (“AJC”). AJC is defined as all non-frozen concentrated apple juice with a Brix scale of 40 or greater, whether or not containing added sugar or other sweetening matter, and whether or not fortified with vitamins or minerals. Excluded from the scope of this order are: Frozen concentrated apple juice; non-frozen concentrated apple juice that has been fermented; and non-frozen concentrated apple juice to which spirits have been added.

The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) at subheadings 2106.90.52.00, and 2009.70.00.20 before January 1, 2002, and 2009.79.00.20 after January 1, 2002. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the order is dispositive.

The Department has treated the PRC as a nonmarket economy (“NME”) country in all previous antidumping cases. In accordance with section 771(18)(C)(i) of the Tariff Act of 1930, as amended (“the Act”), any determination that a foreign country is an NME shall remain in effect until revoked by the Department. None of the parties to this proceeding have contested such treatment in this review. Moreover, parties to this proceeding have not argued that the PRC AJC industry is a market-oriented industry. Therefore, we are treating the PRC as an NME country within the meaning of section 773(c) of the Act.

We allow companies in NME countries to receive separate antidumping duty rates for purposes of assessment and cash deposits when those companies can demonstrate an absence of government control, both in law and in fact, with respect to export activities.

To establish whether a company operating in an NME country is sufficiently independent to be entitled to a separate rate, the Department analyzes each exporting entity under the test established in 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 ”), as amplified by 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 a respondent can demonstrate the absence of both de jure and de facto governmental control over export activities.

Evidence supporting, though not requiring, a finding of de jure absence of government control over export activities includes: (1) An absence of restrictive stipulations associated with the individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) any other formal measures by the government decentralizing control of companies. See Sparklers, 56 FR at 20589.

Gansu Tongda has placed documents on the record to demonstrate the absence of de jure government control. These documents include the “Foreign Trade Law of the People's Republic of China” (“Foreign Trade Law”), the “Company Law of the PRC” (“Company Law”), and the “Administrative Regulations of the People's Republic of China Governing the Registration of Legal Corporations” (“Administrative Regulations”). The Foreign Trade Law grants autonomy to foreign trade operators in management decisions and establishes accountability for their own profits and losses. In prior cases, the Department has analyzed the Foreign Trade Law and found that it establishes an absence of de jure control. See, e.g., Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Certain Partial-Extension Steel Drawer Slides with Rollers from the People's Republic of China, 60 FR 29571 (June 5, 1995); Final Determination of Sales at Less Than Fair Value: Certain Preserved Mushrooms from the People's Republic of China, 63 FR 72255 (December 31, 1998) (“ Mushrooms Final ”). We have no new information in this proceeding which would cause us to reconsider this determination.

The Company Law is designed to meet the PRC's needs of establishing a modern enterprise system, and to maintain social and economic order. The Department has noted that the Company Law supports an absence of de jure control because of its emphasis on the responsibility of each company for its own profits and losses, thereby decentralizing control of companies.

Like the Company Law, the Administrative Regulations safeguard social and economic order, as well as establish an administrative system for the registration of corporations. The Department has reviewed the Administrative Regulations and concluded that they show an absence of de jure control by requiring companies to bear civil liabilities independently, thereby decentralizing control of companies.

According to the respondent, AJC exports are not affected by quota allocations or export license requirements. The Department has examined the record in this case and does not find any evidence that AJC exports are affected by quota allocations or export license requirements. By contrast, the evidence on the record demonstrates that producers/exporters have the autonomy to set the price at whatever level they wish through independent price negotiations with their foreign customers and without government interference.

Accordingly, we preliminarily determine that there is an absence of de jure government control over export pricing and marketing decisions of Gansu Tongda.

De facto absence of government control over exports is based on four factors: (1) Whether each exporter sets its own export prices independently of the government and without the approval of a government authority; (2) whether each exporter retains the proceeds from its sales and makes independent decisions regarding the disposition of profits or financing of losses; (3) whether each exporter has the authority to negotiate and sign contracts and other agreements; (4) whether each exporter has autonomy from the government regarding the selection of management. See Silicon Carbide, 59 FR at 22587; Sparklers, 56 FR at 20589.

As stated in previous cases, there is evidence that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC. See Mushrooms Final, 63 FR at 72255. Therefore, the Department has determined that an analysis of de facto control is critical in determining whether respondents are, in fact, subject to a degree of governmental control which would preclude the Department from assigning separate rates.

The Department has reviewed the record in this case and notes that the respondent: (1) Establishes its own export prices; (2) negotiates contracts without guidance from any governmental entities or organizations; (3) makes its own personnel decisions; and (4) retains the proceeds from export sales and uses profits according to its business needs without any restrictions.

The information on the record supports a preliminary finding that there is an absence of de facto governmental control of the export functions of Gansu Tongda. Consequently, we preliminarily determine that Gansu Tongda has met the criteria for the application of separate rates.

As described below, the Department has determined that Gansu Tongda is affiliated with two other producers of AJC, Tongda Fruit Juice and Beverage Liquan Co., Ltd. (“Liquan”) and Tongda Fruit Juice & Beverage Binxian Co., Ltd. (“Binxian”), and has preliminarily treated them as a single company for purposes of its antidumping duty analysis. Accordingly, the Department will issue separate rates questionnaires to Binxian and Liquan before the publication of the final results, and analyze the combined entity's eligibility for a separate rate at that time.

Gansu Tongda exported AJC to the United States during the POR that it had produced itself. Gansu Tongda also purchased AJC from an affiliate, Liquan, which it then sold to the United States during the POR. Liquan did not make any sales of subject merchandise to the United States during the POR. Gansu Tongda is also affiliated with Binxian, another producer of subject merchandise. Binxian did not sell AJC to the United States during the POR, nor did Gansu Tongda purchase AJC from Binxian for sale to the United States during the POR.

Section 771(33)(E) of the Act provides that the Department will find parties to be affiliated if any person directly or indirectly owns, controls, or holds power to vote, five percent or more of the outstanding voting stock or shares of any organization and such organization. Section 771(33)(F) of the Act provides that parties are affiliated if two or more persons directly or indirectly control, or are controlled by, or under common control with any other person; and section 771(33)(G) of the Act provides that parties are affiliated if any person controls any other person. To the extent that section 771(33) of the Act does not conflict with the Department's application of separate rates and enforcement of the NME provision, section 773(c) of the Act, the Department will determine that exporters and/or producers are affiliated if the facts of the case support such a finding.

Gansu Tongda, Liquan and Binxian have two parent companies who share 100 percent control over the three companies and are legally in a position to exercise restraint or direction over all three companies. See page two and Exhibit 6 of Gansu Tongda's October 17, 2003, submission; and page 1 of Gansu Tongda's January 12, 2004, submission. Furthermore, all three companies share the same board of directors, sales office staff, and legal representative. See page 2, Exhibit 3 and Exhibit 5 of Gansu Tongda's April 8, 2004, submission. For these reasons, the Department has determined that Gansu Tongda, Liquan and Binxian are affiliated in accordance with section 771(33) of the Act.

Based on the ownership ties described above, the Department requested Gansu Tongda to (1) report the factors of production data from each company listed above if it produced subject merchandise during the POR; and (2) provide information on the relationship between and among these companies for purposes of determining whether the Department should collapse any or all of them in the preliminary results ( see March 4, 2004, supplemental questionnaire for details).

Pursuant to 19 CFR 351.401(f), the Department will collapse producers and treat them as a single entity where (1) those producers are affiliated, (2) the producers have production facilities for producing similar or identical products that would not require substantial retooling of either facility in order to restructure manufacturing priorities, and (3) there is a significant potential for manipulation of price or production. In determining whether a significant potential for manipulation exists, the regulation provides that the Department may consider various factors, including (1) the level of common ownership, (2) the extent to which managerial employees or board members of one firm sit on the board of directors of an affiliated firm, and (3) whether the operations of the affiliated firms are intertwined. See Gray Portland Cement and Clinker From Mexico: Final Results of Antidumping Duty Administrative Review , 63 FR 12764, 12774 (March 16, 1998) and Final Determination of Sales at Less Than Fair Value: Collated Roofing Nails from Taiwan , 62 FR 51427, 51436 (October 1, 1997). To the extent that this provision does not conflict with the Department's application of separate rates and enforcement of the NME provision, section 773(c) of the Act, the Department will collapse two or more affiliated entities in a case involving an NME country if the facts of the case warrant such treatment. See Certain Preserved Mushrooms from the People's Republic of China: Preliminary Results of Sixth New Shipper Review and Preliminary Results and Partial Rescission of Fourth Antidumping Duty Administrative Review , 69 FR 10410 (March 5, 2004) (“ Mushrooms Prelim ”). Furthermore, we note that the factors listed in 19 CFR 351.401(f)(2) are not exhaustive, and in the context of an NME investigation or administrative review, other factors unique to the relationship of business entities within the NME may lead the Department to determine that collapsing is either warranted or unwarranted, depending on the facts of the case. See Hontex Enterprises, Inc. v. United States , 248 F. Supp. 2d 1323, 1344 (CIT 2003) (noting that the application of collapsing in the NME context may differ from the standard factors listed in the regulation).

In summary, depending upon the facts of each investigation or administrative review, if there is evidence of significant ownership ties or control between or among producers which produce similar and/or identical merchandise, but may not all produce their product for sale to the United States, the Department may find such evidence sufficient to apply the collapsing criteria in an NME context in order to determine whether all or some of those affiliated producers should be treated as one entity, see Certain Hot-Rolled Carbon Steel Flat Products from the People's Republic of China, Preliminary Determination of Sales at Less Than Fair Value , 66 FR 22183 (May 3, 2001).

Gansu Tongda has reported that Gansu Tongda, Liquan and Binxian all produced identical or similar merchandise during the POR. Therefore, we find that the first and second criteria for collapsing are met here because these companies are affiliated as explained above and all have production facilities for producing similar or identical products that would not require substantial retooling in order to restructure manufacturing priorities.

Finally, we find that the third collapsing criterion is met in this case because a significant potential for manipulation of price or production exists among Gansu Tongda, Liquan and Binxian for the following reasons. As explained above, there is a high level of common ownership between and among these companies. Second, also as discussed above, a significant level of common control exists among these companies. Third, Gansu Tongda's acquisition and sale of subject merchandise produced by Liquan indicates that the operations of these companies are intertwined, as does the fact that all three companies share the same sales office staff. Thus, we find that the operations of Gansu Tongda, Liquan and Binxian are sufficiently intertwined.

Therefore, based on the above-mentioned findings and following the guidance of 19 CFR 351.401(f), we have preliminarily collapsed Gansu Tongda, Liquan and Binxian because there is a significant potential for manipulation between these affiliated parties. See Mushrooms Prelim.

For sales made by Gansu Tongda we used export price (“EP”), in accordance with section 772(a) of the Act, because the subject merchandise was sold to unaffiliated purchasers in the United States prior to importation into the United States and because the constructed export price methodology was not warranted by other circumstances.

We calculated EP based on the prices to unaffiliated purchasers. In accordance with section 772(c) of the Act, we deducted from these prices, where appropriate, amounts for foreign inland freight, international freight, other U.S. transportation expense, and U.S. customs duty (including merchandise processing and harbor maintenance fees). We selected Poland as the surrogate country for the reasons explained in the “ Normal Value ” section of this notice, below. However, where we were unable to find Polish data to value particular factors of production, we have valued these inputs using public information on the record for India, one of the comparable economies identified in the August 4, 2003, Memorandum from Ron Lorentzen to Audrey Twyman, “Third Administrative Review of the Antidumping Duty Order on Non-Frozen Apple Juice Concentrate from the People's Republic of China (PRC): Request for a List of Surrogate Countries.” We valued the deductions for foreign inland freight using Indian freight costs. Where, as here, a significant portion or all of a specific company's ocean freight was provided directly by market economy companies and paid for in a market economy currency, we use the reported market economy ocean freight values for all U.S. sales made by that company. See 19 CFR 351.408(c)(1) (regulation for the information used to value factors of production).

Section 773(c)(1) of the Act provides that the Department shall determine normal value (“NV”) using a factors-of-production methodology if: (1) The subject merchandise is exported from an NME country, and (2) the Department finds that the available information does not permit the calculation of NV under section 773(a) of the Act. We have no basis to determine that the available information would permit the calculation of NV using PRC prices or costs. Therefore, we calculated NV based on factors data in accordance with section 773(c) of the Act and 19 CFR 351.408(c).

Under the factors-of-production methodology, we are required to value, to the extent possible, the NME producer's inputs in a market economy country that is at a comparable level of economic development and that is a significant producer of comparable merchandise.

We have followed the guidelines set out in policy bulletin number 04.1, “Non-Market Economy Surrogate Country Selection Process,” dated March 1, 2004, to determine the appropriate surrogate country. See the June 29, 2004, Memorandum to Jeff May from Susan Kuhbach “Surrogate Selection and Valuation—Non-Frozen Apple Juice Concentrate from China,” (“Surrogate Country Memo”) for a further discussion of our surrogate selection, which is on file in the Department's Central Records Unit in Room B-099 of the main Department building (“CRU”). We chose Poland, a significant producer of the comparable merchandise apple juice concentrate, as the primary surrogate on the basis of the criteria set out in section 773(c)(4) of the Act, and in 19 CFR 351.408(b). Although Poland was not identified in the Department's list of most comparable economies ( see August 4, 2003, Memorandum from Ron Lorentzen to Audrey Twyman, “Third Administrative Review of the Antidumping Duty Order on Non-Frozen Apple Juice Concentrate from the People's Republic of China (PRC): Request for a List of Surrogate Countries”), we were unable to establish that any of the listed comparable economies were significant producers of comparable merchandise.

We have applied surrogate values based on publicly available information from Poland for the major input, juice apples, as well as electricity, factory overhead, selling, general and administrative expenses (“SG&A”), and profit ratios. However, because we were unable to obtain Polish data to value the other, less significant factors of production, we have relied upon public information on the record for India and Indonesia, two of the comparable economies identified by the Department. For the by-product, pomace, we were able to find only a United States value and have used this for these preliminary results. Where these surrogate values were not contemporaneous with the POR, we inflated the data to the POR using the wholesale price indices (“WPI”) published by the International Monetary Fund, unless otherwise noted.

Pursuant to the Department's factors-of-production methodology as provided in section 773(c) of the Act and 19 CFR 351.408(c), we valued the respondent's reported factors of production by multiplying them by the values below. (For a complete description of the factor values used, see the Memorandum to Susan Kuhbach: “Factors of Production Values Used for the Preliminary Results,” dated June 29, 2004, which is on file in the CRU.) The factors of production usage rates were calculated based on the weighted-average usage rates for Gansu Tongda, Liquan and Binxian.

Juice Apples: We have valued juice apples using prices of juice apples in Poland, covering 39 weeks of the POR, which were provided to the Department by the Foreign Agriculture Service (“FAS”) at the U.S. Embassy in Warsaw, Poland. This pricing data was obtained by the FAS from the Polish Foreign Agricultural Markets Monitoring Unit/Foundation for Aid Programs for Agriculture and the Institute of Agricultural Economics. The average value of these 39 prices is $57.78 per metric ton.

Processing Agents: We valued pectinex enzyme, pectinase enzyme, amylase enzyme, and gelatin for the POR using the World Trade Atlas data for India which is based on data reported by the Directorate General of Commercial Intelligence & Statistics of the Ministry of Commerce, which also supplies the same data for the Monthly Statistics of the Foreign Trade of India, Volume II: Imports (“Indian import statistics”).

Labor: Pursuant to § 351.408(c)(3) of the Department's regulations, we valued labor using the regression-based wage rate for the PRC published by Import Administration on its website.

Electricity and Steam Coal: To value electricity, we used Polish industrial electricity rate data from the Energy Prices & Taxes—Quarterly Statistics (First Quarter 2003) published by the International Energy Agency. We were unable to obtain Polish surrogate values for steam coal of the specific heat values reported by the PRC AJC producers. Therefore, we determined that the most contemporaneous and detailed information on the record for steam coal was derived from the Energy Data Directory & Yearbook (2001/2002) published by Tata Energy Research Institute in India. The data for the Indian domestic price of steam coal is contemporaneous with the POR and broken out by useful heat value. Thus, we used the Indian figures to value the amount for steam coal.

Factory Overhead, SG&A, and Profit: We derived ratios for factory overhead, SG&A, and profit, using the 2002 financial statement of Agros Fortuna, a public company in Poland that produces products similar to the subject merchandise.

Packing Materials: We calculated values for aseptic bags, plastic liners, and labels using the World Trade Atlas data for India for the POR. We converted values from a per kilogram to a per piece basis, where necessary.

For steel drums, we could not find a reliable current Indian value. Therefore, we used a 1994 Indonesian price and inflated it using the Indonesian WPI.

Inland Freight Rates: To value truck freight rates, we used an April 2002 article from the Iron and Steel Newsletter , which quotes information derived from the website, www.infreight.com. With regard to rail freight, we based our calculation on posted rail rates from the Indian Railways at www.indianrailways.gov.in. We calculated an average per kilometer per metric ton rate.

By-products: As the reported factors included pomace as a by-product resulting from production of AJC, we have made a deduction to the AJC surrogate value to account for the by-product. Because we were unable to find reliable Indian values for apple pomace, we used a U.S. price as the surrogate value because it is the only pomace value on the record of this proceeding. Apple pomace was valued using an April 2000 study published by the University of Georgia.

We preliminary determine that the following dumping margin exists for the period June 1, 2002, through May 31, 2003:

Pursuant to 19 CFR 351.212(b), the Department calculates an assessment rate for each importer of the subject merchandise for each respondent. Upon issuance of the final results of this administrative review, if any importer-specific assessment rates calculated in the final results are above de minimis ( i.e. , at or above 0.5 percent), the Department will issue appraisement instructions directly to U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on appropriate entries by applying the assessment rate to the entered value of the merchandise. For assessment purposes, we calculate importer-specific assessment rates for the subject merchandise by aggregating the dumping duties due for all U.S. sales to each importer and dividing the amount by the total entered value of the sales to that importer.

All other entries of the subject merchandise during the POR will be liquidated at the antidumping duty rate in place at the time of entry except for Yantai Oriental Juice Co., Qingdao Nannan Foods Co., Sanmenxia Lakeside Fruit Juice Co. Ltd., Shaanxi Haisheng Fresh Fruit Juice Co., and SDIC Zhonglu Juice Group Co. which were recently excluded from the order on remand and whose entries will be liquidated without regard to antidumping duties.

The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of this review.

Should the final results of this administrative review not differ from these preliminary results, the following cash deposit requirements will be effective upon publication of the final results for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(1) of the Act: (1) For the PRC company named above, the cash deposit rate for exports to the United States by that company will be the rate established in the final results of this review, except that, for exporters with de minimis rates, i.e. , less than 0.50 percent, no deposit will be required; (2) for companies previously found to be entitled to a separate rate in a prior segment of the proceeding, and for which no review has been requested, the cash deposit rate will continue to be the rate established in the most recent review of that company (except for Xian Yang, which had a new cash deposit rate of 3.83 percent set effective December 12, 2003); (3) for all other PRC exporters, the cash deposit rate will be 51.74 percent, the PRC country-wide ad-valorem rate; and (4) for non-PRC exporters of subject merchandise from the PRC to the United States, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit requirements shall remain in effect until publication of the final results of the next administrative review.

Pursuant to 19 CFR 351.310(c), any interested party may request a hearing within 30 days of the date of publication of this notice. Any hearing, if requested, will be held approximately 42 days after the publication of this notice, or the first workday thereafter. Issues raised in hearings will be limited to those raised in the case and rebuttal briefs. Pursuant to 19 CFR 351.309(c), interested parties may submit case briefs within 30 days of the date of publication of this notice. Furthermore, as discussed in 19 CFR 351.309(d)(2), rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed not later than 35 days after the date of publication of this notice. Parties who submit case briefs or rebuttal briefs in this review are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument with an electronic version included.

The Department will publish the final results of this administrative review, including the results of its analysis of issues raised in any such written briefs or hearing, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

We are issuing and publishing these results in accordance with sections 751(a)(1), and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).

Section 702 of the Trade Agreements Act of 1979 (as amended) (“the Act”) requires the Department of Commerce (“the Department”) to determine, in consultation with the Secretary of Agriculture, whether any foreign government is providing a subsidy with respect to any article of cheese subject to an in-quota rate of duty, as defined in section 702(h) of the Act, and to publish an annual list and quarterly updates of the type and amount of those subsidies. We hereby provide the Department's quarterly update of subsidies on articles of cheese that were imported during the period January 1, 2004, through March 31, 2004.

The Department has developed, in consultation with the Secretary of Agriculture, information on subsidies (as defined in section 702(h) of the Act) being provided either directly or indirectly by foreign governments on articles of cheese subject to an in-quota rate of duty. The appendix to this notice lists the country, the subsidy program or programs, and the gross and net amounts of each subsidy for which information is currently available. The Department will incorporate additional programs which are found to constitute subsidies and additional information on the subsidy programs listed, as the information is developed.

The Department encourages any person having information on foreign government subsidy programs which benefit articles of cheese subject to an in-quota rate of duty to submit such information in writing to the Assistant Secretary for Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.

This determination and notice are in accordance with section 702(a) of the Act.

The Commercial Service is accepting applications for the International Buyer Program (IBP) for events taking place between October 1, 2005, and September 30, 2006. A contribution of $8,000 for shows of five days or less is required. For shows requiring more than one International Business Center, a contribution of $12,000 is required.

Under the IBP, the Commercial Service seeks to bring together international buyers with U.S. firms by selecting and promoting, in international markets, U.S. domestic trade shows covering industries with high export potential. Selection of a trade show for the IBP is valid for one event, i.e. , a tradeshow organizer seeking selection for a recurring event must submit a new IBP application to be considered for each occurrence of the event. Even if the event occurs more than once in the 12-month period covering this announcement, the trade show organizer must submit a separate application for each event.

The Commercial Service will select approximately 36 events to support between October 1, 2005, through September 30, 2006. The Commercial Service will select those events that, in its judgment, most clearly meet the Commercial Service's statutory mandate to promote U.S. exports, especially those of small and medium size enterprises and that best meet the selection criteria articulated below.

Successful show organizer applicants will be required to enter into a Memorandum of Understanding (MoU) with the DOC. The MoU constitutes an agreement between the DOC and the show organizer specifying which responsibilities are to be undertaken by DOC as part of the IBP and, in turn, which responsibilities are to be undertaken by the show organizer. Anyone who requests information regarding applying will be sent a copy of the MoU along with the application package. The responsibilities to be undertaken by DOC will be carried out by the Commercial Service.

The Department selects trade shows to be IBP partners that it determines to be leading international trade shows appropriate for participation by U.S. exporting firms and for promotion in overseas markets by U.S. Embassies and Consulates. Selection as an IBP partner does not constitute a guarantee by the U.S. Government of the show's success. IBP partnership status is not an endorsement of the show organizer except as to its international buyer activities. Non-selection should not be viewed as a finding that the event will not be successful in the promotion of U.S. exports.

Exclusions: Trade shows that are either first-time or horizontal (non-industry specific) events will not be considered.

General Selection Criteria: The Department will select shows to be IBP partners that, in the judgment of the Department, best meet the following criteria:

(a) Export Potential: The trade show promotes products and services from U.S. industries that have high export potential, as determined by DOC sources, e.g. , Commercial Service best prospects lists and U.S. export statistics (certain industries are rated as priorities by our domestic and international commercial officers in their Country Commercial Guides).

(b) International Interest: The trade show meets the needs of a significant number of overseas markets and corresponds to marketing opportunities as identified by the posts in their Country Commercial Guides ( e.g. , best prospect lists). Previous international attendance at the show may be used as an indicator.

(c) U.S. Content of Show Exhibitors: Trade shows with exhibitors featuring a high percentage of U.S. products or products with a high degree of U.S. content will be preferred. To be considered “U.S.”, products and services to be exhibited must be produced or manufactured in the U.S., or if produced or manufactured outside of the U.S., the products or services must contain at least 51% U.S. content and must be marketed under the name of a U.S. firm.

(d) Stature of the show: The trade show is clearly recognized by the industry it covers as a leading event for the promotion of that industry's products and services, both domestically and internationally, and as a showplace for the latest technology or services in that industry or sector.

(e) Exhibitor Interest: There is demonstrated interest on the part of U.S. exhibitors in receiving international business visitors during the trade show. A significant number of U.S. exhibitors should be new-to-export or seeking to expand sales into additional international markets.

(f) Overseas Marketing: There has been a demonstrated effort to market prior shows overseas. In addition, the applicant should describe in detail the international marketing program to be conducted for the event, explaining how efforts should increase individual and group international attendance. Planned cooperation with Visit USA Committees overseas is desirable.

(g) Logistics: The tradeshow site, facilities, transportation services, and availability of accommodations are in the stature of an international-class trade show.

(h) Cooperation: The applicant demonstrates a willingness to cooperate with the Commercial Service to fulfill the program's goals and to adhere to target dates set out in the MoU and the event timetable, both of which are available from the program office (see FOR FURTHER INFORMATION CONTACT section above on when, where, and how to apply). Past experience in the IBP will be taken into account in evaluating current applications to the program.

Legal Authority: The Commercial Service has the legal authority to enter into MoUs with for-profit show organizers and other groups (partners) under the provisions of the Mutual Educational and Cultural Exchange Act of 1961 ((MECEA), as amended (22 U.S.C. Section 2455(f)) MECEA allows the Commercial Service to accept contribution of funds and services from firms for the purposes of furthering its mission. The statutory program authority for the Commercial Service to conduct the International Buyer Program is 15 U.S.C. 4724.

The Office of Management and Budget (OMB) has approved the information collection requirements of the application to this program under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3512 et seq. ) (OMB Control No. 0625-0151). Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number.

Environmental Technologies Trade Mission Hong Kong and Beijing and Shanghai, China October 26-November 2, 2004.

The United States Department of Commerce, International Trade Administration, U.S. Commercial Service is organizing an Environmental Technologies Trade Mission to Hong Kong and Beijing and Shanghai, China on October 26-November 2, 2004. This event offers a timely opportunity for U.S. firms to tap into some of the world's fastest growing markets for U.S. environmental equipment and technology. Target subsectors with best prospects for U.S exporters to China and Hong Kong include solid waste (medical and hazardous) treatment, wastewater (municipal and industrial) treatment, and air pollution control equipment. Mission participants will benefit from country briefings; one-to-one appointments with prospective business contacts; high-level meetings with government officials; and site visits. In addition, the mission is strategically timed to facilitate attendance at Pollutec China 2004, November 3-5, 2004, in Shanghai. Offered this year for the first time in China, Pollutec will build on its 20-year success in France, where more than 2,200 exhibitors from 32 countries and 63,000 trade visitors do business annually. Pollutec China 2004 is a U.S. Department of Commerce Certified Trade Fair.

China is expected to spend $84 billion (1.2% of GDP) on environmental protection to meet the goals of the 10th five-year plan (2001-2005). During this 5-year period, the central government is expected to make 11.4% ($9.7 billion) of the investment, while 34% will come from provincial and local governments and the remaining 55% from business enterprises. Beijing alone is projected to spend at least $5.4 billion on environmental clean-up in preparation for the 2008 Olympics.

China and its foreign lenders still spend far more on the water sector than on air and solid waste, especially on the clean-up of priority river basins and lakes, thus offering the best opportunities for U.S. exporters. In November 2000, the State Council issued a notice requiring all cities with populations over 100,000 to build wastewater treatment facilities by 2005. To meet funding demands, water tariffs have been on the rise in most major cities in the last few years, and cities are starting to levy increased wastewater surcharges. Among the water pollution issues, groundwater contamination is a serious problem. Industrial factories are top groundwater polluters. Local environmental protection bureaus are responsible for inspection and investigation of groundwater pollution emergencies, and urge polluters to complement clean-up of the pollution. Best water and wastewater export opportunities to China include those related to river basin management and flood control, water reuse, and sludge treatment and disposal. Specific products in strong demand include water monitoring instruments, drinking water purification products, and industrial wastewater treatment equipment.

Solid waste treatment, predominately through incineration and landfill, is expanding as China is slowly beginning to enforce its comprehensive solid and hazardous waste law. At present, China plans to allocate $1.8 billion for the implementation of this plan, which includes construction of 31 hazardous waste treatment centers and 300 centralized medical waste treatment facilities; reconstruction, expansion and establishment of 31 warehouses for radioactive waste at the provincial level; and the establishment of 31 hazardous waste registration centers at the provincial level. The State Environmental Protection Administration is now in the process of identifying advanced hazardous waste treatment technologies suitable for China's situation. U.S. companies offering hazardous waste solutions hold strong potential in the China market.

In the air pollution control subsector, current focuses in China include SO 2 and acid rain control, as well as curbing vehicle emissions. The most recent regulatory requirements mandate that China observe an emissions standard equivalent to Europe II by the end of 2004. It is also reported that China is going to further raise the emissions standard to Europe III equivalent around the year 2008. In addition, China requires that all coal-fired power plants install desulfurization equipment by the year 2010. Air pollution control products that enjoy the best sales prospects in China include low-cost flue gas desulfurization and de-NO X systems, air monitoring instruments, and vehicle emissions control and inspection devices.

The Hong Kong Government has made water pollution control and solid waste treatment top priorities. While Hong Kong is a service-oriented economy and its industrial pollution is insignificant, cross-border pollution remains a big concern. For water and solid waste, the Hong Kong Government is formulating plans to resolve the problems internally. In 2002, total government expenditure devoted to environmental protection work amounted to approximately US$825 million, including US$190 million for sewage services (planning, design and construction of sewage systems, and sewage treatment and disposal facilities); US$580 million for drainage and water works, improvement of air quality, prevention of noise problems, and solid waste treatment; and $55 million for environmental assessment and planning. The Hong Kong Government has earmarked some US$775 million annually for environmental infrastructure improvement during the past two years.

Best prospects for U.S. environmental exports to Hong Kong include analytical instruments, vehicle emission particulate reduction devices, water filtration equipment (such as biological filtration), disinfection technologies (UV, membrane and ozonation), analytical instruments, mechanical waste sorting and separation, composting, incineration, and waste-to-energy technologies.

The goal of the China/Hong Kong Trade Mission is to enable trade mission participants to gain first-hand market exposure to government decision makers and private sector potential agents, distributors and business partners so they can be positioned to take advantage of the strong environmental business opportunities in China and Hong Kong.

The Environmental Trade Mission will include three stops: Hong Kong, Beijing and Shanghai. In each city, trade mission participants will benefit from country briefings and one-on-one business meetings with prospective agents, distributors, partners, and end users. In Shanghai and Beijing companies will also hold high-level meetings with government officials regarding regulatory and project opportunities, as well as visit environmental projects holding business potential. After the close of the trade mission, from November 3-5, mission participants can opt to remain in Shanghai to visit or exhibit on their own at Pollutec China 2004. As an added bonus to trade mission companies, their product literature will be displayed in the USA Pavilion at Pollutec.

Timetable for the trade mission will be as follows:

• Relevance of a company's business line to mission goals.

• Timeliness of company's signed application and participation agreement (including a participation fee of $3,400).

• Potential for business in China and Hong Kong for the company.

• Minimum of eight and maximum of twelve participating companies in the mission.

• Provision of adequate information on company's products and/or services, and company's primary market objectives, in order to facilitate appropriate matching with potential business partners.

• Certification that the company meets Departmental guidelines for participation. A company's products or services must be either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least 51 percent U.S. content of the value of the finished product or service.

Any partisan political activities (including political contributions) of an applicant are entirely irrelevant to the selection process.

Mission recruitment will be conducted in an open and public manner, including publication in the Federal Register , posting on the Commerce Department trade mission calendar— http://www.ita.doc.gov/doctm/tmcal.html —and other Internet Web sites, press releases to the general and trade media, direct mail and broadcast fax, notices by industry trade associations and other multiplier groups, and at industry meetings, symposia, conferences, trade shows.

Recruitment for the mission will begin in June 2004 and conclude no later than September 15, 2004. The mission will target 8-12 companies. The participation fee for the event will be $3,400 per company. The participation fee does not include travel and lodging costs. Applications received after the closing date will be considered only if space and scheduling constraints permit.

Julia Rauner Guerrero, Environmental Technologies Team, San Diego U.S. Export Assistance Center, Phone: (619) 557-2963, E-mail: julia.rauner.guerrero@mail.doc.gov.

Yvonne Jackson, Export Promotion Services, Washington, DC, Phone: (202) 482-2675, E-mail: yvonne.jackson@mail.doc.gov.

Sue Simon, Trade Development, Washington, DC, Phone: 202-482-0713, E-mail: susan_simon@ita.doc.gov.

The purpose of the West Coast Groundfish Data workshop is to identify data and data sources that will be used in conducting the 2005 West Coast groundfish stock assessments, discuss and review methods for converting raw data into model inputs, and explore the potential use of additional data sources in future stock assessments.

Although non-emergency issues not contained in the meeting agenda may come before the workshop participants for discussion, those issues may not be the subject of formal workshop action during this meeting. Workshop 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 Fishery Conservation and Management Act, provided the public has been notified of the workshop participants' intent to take final action to address the emergency.

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at (503) 820-2280 at least 5 days prior to the meeting date.

Entry to the NOAA WRC requires visitors to show a valid picture ID and register with security every morning. A visitor's badge, which must be worn while at the NOAA Facility, will be issued to non-Federal employees participating in the meeting.

All meetings are scheduled to begin at 6 p.m. Public hearings will be held at the following locations:

1. Tuesday, July 26, 2004, Town & Country Inn, 2008 Savannah Highway, Charleston, SC 29407; telephone: (843) 571-1000;

2. Monday, August 2, 2004, Richmond Hill City Hall, 40 Richard R. Davis Drive, Richmond Hill, GA 31324; telephone: (912) 756-3354;

3. Tuesday, August 3, 2004, Radisson Resort at the Port, 8701 Astronaut Blvd., Cape Canaveral, FL 34949; telephone: (321) 784-0000;

4. Thursday, August 5, 2004, Crown Plaza La Concha, 430 Duval Street, Key West, FL 33040; telephone: (305) 296-2991;

5. Monday, August 9, 2004, Cooperative Extension, 25 Referendum Road, Bldg. N, Bolivia, NC 28422; telephone: (910) 253-2610; and

6. Tuesday, August 10, 2004, DENR Regional Office, 943 Washington Square Mall, Washington, NC 27889; telephone: (252) 946-6481.

These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see ADDRESSES ) by July 23, 2004.

This notice is relevant to federally endangered Sacramento River winter-run Chinook salmon ( Oncorhynchus tshawytscha ), threatened Central Valley spring-run Chinook salmon ( O. tshawytscha ), and/or threatened Central Valley steelhead ( O. mykiss ).

Permit 1400 was issued to Wildlands, Inc. on March 14, 2004, authorizing capture (by beach seine, nets) and release of ESA-listed juvenile and adult Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, and Central Valley steelhead from waters within the restored wetlands complex on Kimball Island in the Sacramento-San Joaquin Delta. Permit 1400 authorizes unintentional mortality associated with research activities not to exceed 3 percent of the captured ESA-listed fish. The results of this study will provide fish and habitat data to develop conceptual models relating fish usage to habitat type by species, life stage, and native/non-native status. Permit 1400 expires January 1, 2009.

Permit 1407 was issued to California Department of Fish and Game on April 13, 2004, authorizing capture and release of juvenile Sacramento River winter-run Chinook salmon from a rotary screw trap located within the Sutter Bypass portion of lower Butte Creek. Lethal take of the fish associated with the study is not to exceed 2 percent of captured winter-run Chinook salmon fish. The purpose of the project is to study the life history of Central Valley spring-run Chinook salmon in Butte and Big Chico Creeks (under an existing permit), and may subsequently capture juvenile winter-run Chinook salmon. Permit 1407 expires June 30, 2009.

Permit 1414 was issued to East Bay Municipal Utility District on April 13, 2004, authorizing capture (by trapping, electrofishing) and release of adult and juvenile Central Valley steelhead associated with monitoring fish populations to measure the success of the Lower Mokelumne River Restoration Program. Permit 1414 authorizes lethal take of up to 5 adult and 45 juvenile Central Valley steelhead. Permit 1414 expires June 30, 2008.

Permit 1431 was issued to California Department of Water Resources on June 21, 2004, authorizing capture (by angling, trapping, tagging, electrofishing) and release of Central Valley spring-run Chinook salmon and Central Valley steelhead associated with research evaluating the effects of the Oroville-Thermalito Complex operation on anadromous fishes in the lower Feather River. Lethal take is not to exceed five adult Central Valley spring-run Chinook salmon, and five adult and 25 juvenile Central Valley steelhead. Permit 1431 expires June 30, 2009.

Permit 1467 was issued to Dr. Peter Klimley of the University of California at Davis on April 6, 2004, authorizing unintentional capture (by nets) and release of Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, and Central Valley steelhead associated with research involving capture of green sturgeon ( Acipenser medirostris ) in the San Francisco Estuary and upper Sacramento River. Permit 1467 authorizes unintentional mortality of up to two adult winter-run Chinook salmon, five adult spring-run Chinook salmon, and one adult steelhead. Permit 1467 expires June 30, 2008.

Modification 1 to Permit 1288 was issued to Dynamac Corporation/U.S. Environmental Protection Agency on May 26, 2004, authorizing unintentional capture (by electrofishing) and release of Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, and Central Valley steelhead associated with biological assessments of the Sacramento, Mokleumne, and San Joaquin Rivers. Modification 1 to Permit 1288 authorizes unintentional mortality of up to one juvenile Sacramento River winter-run Chinook salmon, one juvenile Central Valley spring-run Chinook salmon, and three juvenile and one adult Central Valley steelhead. Modification1 to Permit 1288 expires November 30, 2004.

NMFS has determined that take levels authorized in the permits will not jeopardize listed salmon and steelhead nor result in the destruction or adverse modification of critical habitat where described.

NMFS' conditions in the permit will ensure that the take of ESA-listed anadromous fish will not jeopardize the continued existence of the listed species. Issuance of this permit, as required by the ESA, was based on a finding that the permit: (1) was applied for in good faith; (2) will not operate to the disadvantage of the listed species which are the subject of the permit; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA. This permit was issued in accordance with, and is subject to, 50 CFR part 222, the NMFS regulations governing listed species permits.

This is a summary of the Auction No. 58 Comment Public Notice released on June 18, 2004. The complete text of the Auction No. 58 Comment Public Notice , including attachments and of related Commission documents is available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The Auction No. 58 Comment Public Notice and related Commission documents may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (“BCPI”), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone: (202) 488-5300, facsimile: (202) 488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com. When ordering documents from BCPI, please provide the appropriate FCC document number (for example, FCC 00-313 for the C/F Block Sixth Report and Order). The Auction No. 58 Comment Public Notice and related documents are also available on the Internet at the Commission's Web site: http://wireless.fcc.gov/auctions/58/.

1. By the Auction No. 58 Comment Public Notice, the Wireless Telecommunications Bureau (“Bureau”) announces the auction of 234 broadband Personal Communications Service (“PCS”) licenses, scheduled to commence on January 12, 2005 (Auction No. 58). The spectrum to be auctioned has been offered previously in other auctions but was returned to the Commission as a result of license cancellation or termination. A complete list of licenses available for Auction No. 58 is included as Attachment A of Auction No. 58 Comment Public Notice.

2. The following table contains the block/eligibility status/frequency cross-reference list for Auction No. 58:

3. In some cases, licenses are available for only part of a market or may not include all of the spectrum associated with a particular frequency block in Auction No. 58. Bold type indicates that no license of the particular tier/frequency block combination will be available in Auction No. 58. See Attachment A of Auction No. 58 Comment Public Notice to determine which licenses will be offered.

4. For the C and F block licenses, Basic Trading Areas (“BTAs”) are divided into two tiers according to the population size, with Tier 1 comprising markets with population at or above 2.5 million, based on 2000 census figures, and Tier 2 comprising the remaining markets. Some licenses are available to all bidders in “open” bidding, while other licenses are available only to entrepreneurs in “closed” bidding. In order to qualify as an “entrepreneur,” an applicant, including attributable investors and affiliates, must have had gross revenues of less than $125 million in each of the last two years and must have less than $500 million in total assets. All of the licenses available in “closed” bidding are C block licenses. The A, B, E, and F block licenses, as well as certain C block licenses, are available in “open” bidding. The entrepreneur eligibility restriction does not apply to licenses that were available but not won in any auction beginning on or after March 23, 1999. C block licenses for BTA215, BTA330, and BTA470 were available but not won in Auction No. 22. Accordingly, even though licenses in the C3 and C4 frequency blocks in Tier 2 generally are designated as subject to closed bidding, CW-BTA215-C3, CW-BTA330-C3, and CW-BTA470-C4 will be offered in open bidding in Auction No. 58. CW-BTA215-C3, CW-BTA330-C3, and CW-BTA470-C4 were offered in open bidding and won in Auction No. 35; however, because the winners defaulted on their payment obligations, the licenses were never awarded. Size-based bidding credits are not available for C block licenses won in “closed” bidding or for licenses in the A, D, or E blocks.

5. The Balanced Budget Act of 1997 requires the Commission to “ensure that, in the scheduling of any competitive bidding under this subsection, an adequate period is allowed * * * before issuance of bidding rules, to permit notice and comment on proposed auction procedures. * * *” Consistent with the provisions of the Balanced Budget Act and to ensure that potential bidders have adequate time to familiarize themselves with the specific rules that will govern the day-to-day conduct of an auction, the Commission directed the Bureau, under its existing delegated authority, to seek comment on a variety of auction-specific procedures prior to the start of each auction. The Bureau therefore seeks comment on the following issues relating to Auction No. 58.

6. The Bureau proposes to award all licenses included in Auction No. 58 in a simultaneous multiple-round auction. As described further below, this methodology offers every license for bid at the same time with successive bidding rounds in which bidders may place bids. The Bureau seeks comment on this proposal.

7. The Bureau has delegated authority and discretion to determine an appropriate upfront payment for each license being auctioned, taking into account such factors as the population in each geographic license area and the value of similar spectrum. As described further below, the upfront payment is a refundable deposit made by each bidder to establish eligibility to bid on licenses. Upfront payments protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of the auction. With these guidelines in mind for Auction No. 58, the Bureau proposes to calculate upfront payments on a license-by-license basis using a formula based on bandwidth and license area population:

8. The specific proposed upfront payment for each license available in Auction No. 58 is set forth in Attachment A of the Auction No. 58 Comment Public Notice. The Bureau seeks comment on this proposal.

9. The Bureau further proposes that the amount of the upfront payment submitted by a bidder will determine the maximum number of bidding units on which a bidder may place bids. This limit is a bidder's initial eligibility. Each license is assigned a specific number of bidding units equal to the upfront payment listed in Attachment A of the Auction No. 58 Comment Public Notice, on a bidding unit per dollar basis. This number does not change as prices rise during the auction. A bidder's upfront payment is not attributed to specific licenses. Rather, a bidder may place bids on any combination of licenses as long as the total number of bidding units associated with those licenses does not exceed its current eligibility. Eligibility cannot be increased during the auction. Thus, in calculating its upfront payment amount, an applicant must determine the maximum number of bidding units it may wish to bid on (or hold high bids on) in any single round, and submit an upfront payment covering that number of bidding units. The Bureau proposes comment on this proposal.

10. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively on a percentage of their current bidding eligibility during each round of the auction rather than waiting until the end to participate. A bidder that does not satisfy the activity rule will either lose bidding eligibility in the next round or must use an activity rule waiver (if any remain).

11. The Bureau proposes to divide the auction into two stages, each characterized by an increased activity requirement. The auction will start in Stage One. The Bureau proposes that the auction generally will advance from Stage One to Stage Two when the auction activity level, as measured by the percentage of bidding units receiving new high bids, is approximately twenty percent or below for three consecutive rounds of bidding. However, the Bureau further proposes that it retain the discretion to change stages unilaterally by announcement during the auction. In exercising this discretion, the Bureau will consider a variety of measures of bidder activity, including, but not limited to, the auction activity level, the percentage of licenses (as measured in bidding units) on which there are new bids, the number of new bids, and the percentage increase in revenue. The Bureau seeks comment on these proposals.

12. For Auction No. 58, the Bureau proposes the following activity requirements:

Stage One: In each round of the first stage of the auction, a bidder desiring to maintain its current eligibility is required to be active on licenses representing at least 80 percent of its current bidding eligibility. Failure to maintain the requisite activity level will result in a reduction in the bidder's bidding eligibility in the next round of bidding (unless an activity rule waiver is used). During Stage One, reduced eligibility for the next round will be calculated by multiplying the current round activity by five-fourths ( 5/4 ).

Stage Two: In each round of the second stage, a bidder desiring to maintain its current eligibility is required to be active on 95 percent of its current bidding eligibility. In this final stage, reduced eligibility for the next round will be calculated by multiplying the current round activity by twenty/nineteenths ( 20/19 ).

13. The Bureau seeks comment on these proposals. Commenters that believe these activity rules should be modified should explain their reasoning and comment on the desirability of an alternative approach. Commenters are advised to support their claims with analyses and suggested alternative activity rules.

14. Use of an activity rule waiver preserves the bidder's current bidding eligibility despite the bidder's activity in the current round being below the required minimum level. An activity rule waiver applies to an entire round of bidding and not to a particular license. Activity rule waivers can be either proactive or automatic and are principally a mechanism for auction participants to avoid the loss of auction eligibility in the event that exigent circumstances prevent them from placing a bid in a particular round.

15.The FCC Automated Auction System assumes that bidders with insufficient activity would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver (known as an “automatic waiver”) at the end of any bidding period where a bidder's activity level is below the minimum required unless: (i) there are no activity rule waivers available; or (ii) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the minimum requirements.

16. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding period by using the “reduce eligibility” function in the bidding system. In this case, the bidder's eligibility is permanently reduced to bring the bidder into compliance with the activity rules as described above. Once eligibility has been reduced, a bidder will not be permitted to regain its lost bidding eligibility.

17. A bidder may proactively use an activity rule waiver as a means to keep the auction open without placing a bid. If a bidder submits a proactive waiver (using the proactive waiver function in the bidding system) during a bidding period in which no bids or withdrawals are submitted, the auction will remain open and the bidder's eligibility will be preserved. An automatic waiver invoked in a round in which there are no new valid bids or withdrawals will not keep the auction open.

18. The Bureau proposes that each bidder in Auction No. 58 be provided with three activity rule waivers that may be used at the bidder's discretion during the course of the auction as set forth above. The Bureau seeks comment on this proposal.

19. For Auction No. 58, the Bureau proposes that, by public notice or by announcement during the auction, the Bureau may delay, suspend, or cancel the auction in the event of natural disaster, technical obstacle, evidence of an auction security breach, unlawful bidding activity, or administrative or weather necessity, or for any other reason that affects the fair and efficient conduct of competitive bidding. In such cases, the Bureau, in its sole discretion, may elect to resume the auction starting from the beginning of the current round, resume the auction starting from some previous round, or cancel the auction in its entirety. Network interruption may cause the Bureau to delay or suspend the auction. The Bureau emphasizes that exercise of this authority is solely within the discretion of the Bureau, and its use is not intended to be a substitute for situations in which bidders may wish to apply their activity rule waivers. The Bureau seeks comment on this proposal.

20. The Commission will conduct Auction No. 58 over the Internet. Telephonic bidding will also be available. As a contingency plan, the FCC Wide Area Network will be available as well. The telephone number through which the backup FCC Wide Area Network may be accessed will be announced in a later public notice. Full information regarding how to establish such a connection will be provided in the public notice announcing details of auction procedures.

21. The initial bidding schedule will be announced in a public notice to be released at least one week before the start of the auction, and will be included in the registration mailings. The simultaneous multiple-round format will consist of sequential bidding rounds, each followed by the release of round results. Details regarding the location and format of round results will be included in the same public notice.

22. The Bureau has discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. The Bureau may increase or decrease the amount of time for the bidding rounds and review periods, or the number of rounds per day, depending upon the bidding activity level and other factors. The Bureau seeks comment on this proposal.

23. The Balanced Budget Act calls upon the Commission to prescribe methods for establishing a reasonable reserve price or a minimum opening bid when FCC licenses are subject to auction, unless the Commission determines that a reserve price or minimum opening bid is not in the public interest. Consistent with this mandate, the Commission has directed the Bureau to seek comment on the use of a minimum opening bid and/or reserve price prior to the start of each auction.

24. Normally, a reserve price is an absolute minimum price below which an item will not be sold in a given auction. Reserve prices can be either published or unpublished. A minimum opening bid, on the other hand, is the minimum bid price set at the beginning of the auction below which no bids are accepted. It is generally used to accelerate the competitive bidding process. Also, the auctioneer often has the discretion to lower the minimum opening bid amount later in the auction. It is also possible for the minimum opening bid and the reserve price to be the same amount.

25. In light of the Balanced Budget Act's requirements, the Bureau proposes to establish minimum opening bids for Auction No. 58 based on factors that could have an impact on the value of the spectrum. The Bureau believes a minimum opening bid, which has been used in other auctions, is an effective bidding tool. With these guidelines in mind for Auction No. 58, the Bureau proposes to calculate minimum opening bids on a license-by-license basis using formulas based on bandwidth and license area population. Furthermore, the Bureau proposes to differentiate these formulas based on the population of each license area.

26. The specific minimum opening bid for each license available in Auction No. 58 is set forth in Attachment A of the Auction No. 58 Comment Public Notice. The Bureau seeks comment on this proposal.

27. If commenters believe that these minimum opening bids will result in substantial numbers of “unwon” licenses, or are not reasonable amounts, or should instead operate as reserve prices, they should explain why this is so, and comment on the desirability of an alternative approach. Commenters are advised to support their claims with valuation analyses and suggested reserve prices or minimum opening bid levels or formulas. In establishing the minimum opening bids, the Bureau particularly seeks comment on such factors as the amount of spectrum being auctioned, levels of incumbency, the availability of technology to provide service, the size of the geographic service areas, issues of interference with other spectrum bands and any other relevant factors that could reasonably have an impact on valuation of these PCS licenses. The Bureau also seeks comment on whether, consistent with the Balanced Budget Act, the public interest would be served by having no minimum opening bid or reserve price.

28. In each round, eligible bidders will be able to place bids on a given license in any of nine different amounts. The FCC Automated Auction System interface will list the nine acceptable bid amounts for each license. Until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. In the rounds after a bid is placed on a license, the minimum acceptable bid for that license will be equal to the standing high bid plus the defined increment.

29. Once there is a standing high bid on a license, the FCC Automated Auction System will calculate a minimum acceptable bid for that license for the following round, as described below. The difference between the minimum acceptable bid and the standing high bid for each license will define the bid increment. The nine acceptable bid amounts for each license consist of the minimum acceptable bid (the standing high bid plus one bid increment) and additional amounts calculated using multiple bid increments ( i.e. , the second bid amount equals the standing high bid plus two times the bid increment, the third bid amount equals the standing high bid plus three times the bid increment, etc.).

30. Until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. The additional bid amounts for licenses that have not yet received a bid will be calculated differently, as explained below.

31. For Auction No. 58, the Bureau proposes to calculate minimum acceptable bids by using a smoothing methodology, as the Bureau has done in several other auctions. The smoothing formula calculates minimum acceptable bids by first calculating a percentage increment, not to be confused with the bid increment. The percentage increment for each license is based on bidding activity on that license in all prior rounds; therefore, a license that has received many bids throughout the auction will have a higher percentage increment than a license that has received few bids.

32. The calculation of the percentage increment used to determine the minimum acceptable bids for each license for the next round is made at the end of each round. The computation is based on an activity index, which is a weighted average of the number of bids in that round and the activity index from the prior round. The current activity index is equal to a weighting factor times the number of new bids received on the license in the most recent bidding round plus one minus the weighting factor times the activity index from the prior round. The activity index is then used to calculate a percentage increment by multiplying a minimum percentage increment by one plus the activity index with that result being subject to a maximum percentage increment. The Commission will initially set the weighting factor at 0.5, the minimum percentage increment at 0.1 (10%), and the maximum percentage increment at 0.3 (30%). Hence, at these initial settings, the percentage increment will fluctuate between 10% and 30% depending upon the number of bids for the license.

A i = (C*B i ) + ( (1−C)*A i-1 )

I i+1 = smaller of ( (1 + A i )*N) and M

X i+1 = I i+1 *Y i

where,

A i = activity index for the current round (round i)

C = activity weight factor

B i = number of bids in the current round (round i)

A i−1 = activity index from previous round (round i−1), A 0 is 0

I i+1 = percentage increment for the next round (round i+1)

N = minimum percentage increment or percentage increment floor

M = maximum percentage increment or percentage increment ceiling

X i+1 = dollar amount associated with the percentage increment

Y i = high bid from the current round

33. Under the smoothing methodology, once a bid has been received on a license, the minimum acceptable bid for that license in the following round will be the high bid from the current round plus the dollar amount associated with the percentage increment, with the result rounded to the nearest thousand if it is over ten thousand or to the nearest hundred if it is under ten thousand.

34. As stated above, until a bid has been placed on a license, the minimum acceptable bid for that license will be equal to its minimum opening bid. The additional bid amounts are calculated using the difference between the minimum opening bid times one plus the minimum percentage increment, rounded as described above, and the minimum opening bid. That is, I = (minimum opening bid)(1 + N){rounded} − (minimum opening bid). Therefore, when N equals 0.1, the first additional bid amount will be approximately ten percent higher than the minimum opening bid; the second, twenty percent; the third, thirty percent; etc.

35. In the case of a license for which the standing high bid has been withdrawn, the minimum acceptable bid will equal the second highest bid received for the license. The additional bid amounts are calculated using the difference between the second highest bid times one plus the minimum percentage increment, rounded, and the second highest bid.

36. The Bureau retains the discretion to change the minimum acceptable bids and bid increments if it determines that circumstances so dictate. The Bureau will do so by announcement in the FCC Automated Auction System. The Bureau seeks comment on these proposals.

37. At the end of a bidding round, a high bid for each license will be determined based on the highest gross bid amount received for the license. In the event of identical high bids on a license in a given round ( i.e. , tied bids), the Bureau proposes to use a random number generator to select a single high bid from among the tied bids. If the auction were to end with no higher bids being placed for that license, the winning bidder would be the one that placed the selected high bid. However, the remaining bidders, as well as the high bidder, can submit higher bids in subsequent rounds. If any bids are received on the license in a subsequent round, the high bid again will be determined by the highest gross bid amount received for the license. The Bureau seeks comment on this proposal.

38. A high bid will remain the high bid until there is a higher bid on the same license at the close of a subsequent round. A high bid from a previous round is sometimes referred to as a “standing high bid.” Bidders are reminded that standing high bids count towards bidding activity.

39. For Auction No. 58, the Bureau proposes the following bid removal and bid withdrawal procedures. Before the close of a bidding period, a bidder has the option of removing any bid placed in that round. By removing selected bids in the bidding system, a bidder may effectively “unsubmit” any bid placed within that round. A bidder removing a bid placed in the same round is not subject to a withdrawal payment. Once a round closes, a bidder may no longer remove a bid.

40. A high bidder may withdraw its standing high bids from previous rounds using the withdraw function in the bidding system. A high bidder that withdraws its standing high bid from a previous round is subject to the bid withdrawal payment provisions of the Commission rules. The Bureau seeks comment on these bid removal and bid withdrawal procedures.

41. In the Part 1 Third Report and Order, 63 FR 770, January 7, 1998, the Commission explained that allowing bid withdrawals facilitates efficient aggregation of licenses and the pursuit of efficient backup strategies as information becomes available during the course of an auction. The Commission noted, however, that, in some instances, bidders may seek to withdraw bids for improper reasons. The Bureau, therefore, has discretion, in managing the auction, to limit the number of withdrawals to prevent any bidding abuses. The Commission stated that the Bureau should assertively exercise its discretion, consider limiting the number of rounds in which bidders may withdraw bids, and prevent bidders from bidding on a particular market if the Bureau finds that a bidder is abusing the Commission's bid withdrawal procedures.

42. Applying this reasoning, the Bureau proposes to limit each bidder in Auction No. 58 to withdrawing standing high bids in no more than two rounds during the course of the auction. To permit a bidder to withdraw bids in more than two rounds would likely encourage insincere bidding or the use of withdrawals for anti-competitive purposes. The two rounds in which withdrawals are utilized will be at the bidder's discretion; withdrawals otherwise must be in accordance with the Commission's rules. There is no limit on the number of standing high bids that may be withdrawn in either of the rounds in which withdrawals are utilized. Withdrawals will remain subject to the bid withdrawal payment provisions specified in the Commission's rules. The Bureau seeks comment on this proposal.

43. The Bureau has discretion “to establish stopping rules before or during multiple round auctions in order to terminate the auction within a reasonable time.” For Auction No. 58, the Bureau proposes to employ a simultaneous stopping rule approach. A simultaneous stopping rule means that all licenses remain available for bidding until bidding closes simultaneously on all licenses.

44. Bidding will close simultaneously on all licenses after the first round in which no new bids, proactive waivers, or withdrawals are received. Thus, unless circumstances dictate otherwise, bidding will remain open on all licenses until bidding stops on every license.

45. However, the Bureau proposes to retain the discretion to exercise any of the following options during Auction No. 58:

i. Utilize a modified version of the simultaneous stopping rule. The modified stopping rule would close the auction for all licenses after the first round in which no bidder submits a proactive waiver, withdrawal, or a new bid on any license on which it is not the standing high bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a license for which it is the standing high bidder would not keep the auction open under this modified stopping rule. The Bureau further seeks comment on whether this modified stopping rule should be used at any time or only in stage two of the auction.

ii. Keep the auction open even if no new bids or proactive waivers are submitted and no previous high bids are withdrawn. In this event, the effect will be the same as if a bidder had submitted a proactive waiver. The activity rule, therefore, will apply as usual and a bidder with insufficient activity will either lose bidding eligibility or use a remaining activity rule waiver.

iii. Declare that the auction will end after a specified number of additional rounds (“special stopping rule”). If the Bureau invokes this special stopping rule, it will accept bids in the specified final round(s) only for licenses on which the high bid increased in at least one of a specified preceding number of rounds.

46. The Bureau proposes to exercise these options only in certain circumstances, for example, where the auction is proceeding very slowly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time. Before exercising these options, the Bureau is likely to attempt to increase the pace of the auction by, for example, increasing the number of bidding rounds per day, and/or increasing the amount of the minimum bid increments for the limited number of licenses where there is still a high level of bidding activity. The Bureau seeks comment on these proposals.

47. Comments are due on or before July 8, 2004, and reply comments are due on or before July 15, 2004. Because of the disruption of regular mail and other deliveries in Washington, DC, the Bureau requires that all comments and reply comments be filed electronically. Comments and reply comments must be sent by electronic mail to the following address: auction58@fcc.gov. The electronic mail containing the comments or reply comments must include a subject or caption referring to Auction No. 58 Comments and the name of the commenting party. The Bureau requests that parties format any attachments to electronic mail as Adobe® Acrobat® (pdf) or Microsoft® Word documents. Copies of comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554.

In addition, the Bureau requests that commenters fax a courtesy copy of their comments and reply comments to the attention of Kathryn Garland at (717) 338-2850.

48. This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. Other rules pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in § 1.1206(b) of the Commission's rules.

This is a summary of the Commission's Public Notice, DA 04-1763, released June 23, 2004. The Federal Communications Commission (FCC) established the WRC-07 Advisory Committee to provide advice, technical support and recommendations relating to the preparation of United States proposals and positions for the 2007 World Radiocommunication Conference (WRC-07).

In accordance with the Federal Advisory Committee Act, Public Law 92-463, as amended, this notice advises interested persons of the third meeting of the WRC-07 Advisory Committee. The WRC-07 Advisory Committee has an open membership. All interested parties are invited to participate in the Advisory Committee and to attend its meetings. The proposed agenda for the third meeting is as follows:

Continuously accelerating technological changes in telecommunications design, manufacturing, and deployment require that the Commission be promptly informed of those changes to fulfill its statutory mandate effectively. The Council was established by the Federal Communications Commission to provide a means by which a diverse array of recognized technical experts from different areas such as manufacturing, academia, communications services providers, the research community, etc., can provide advice to the FCC on innovation in the communications industry. At this sixth meeting under the Council's new charter, the Council will discuss findings on the cost of interference, the current state of the cable industry with respect to telephony, and invited speakers' presentations on licensed broadband. The Federal Communications Commission will attempt to accommodate as many persons as possible. Admittance, however, will be limited to the seating available. Unless so requested by the Council's Chair, there will be no public oral participation, but the public may submit written comments to Jeffery Goldthorp, the Federal Communications Commission's Designated Federal Officer for the Technological Advisory Council, before the meeting. Mr. Goldthorp's e-mail address is Jeffery.Goldthorp@fcc.gov. Mail delivery address is: Federal Communications Commission, 445 12th Street, SW., Room 7-A325, Washington, DC 20554.

In the Federal Register of October 20, 2003 (68 FR 59942), we published a notice to announce a public workshop entitled “Factor VIII Inhibitors.” On November 21, 2003, we, in cosponsorship with the International Association for Biologicals, held the workshop to address regulatory and scientific concerns about inhibitors to Factor VIII induced by Antihemophilic Factor (Factor VIII) products. These inhibitors arise in a significant minority of patients with hemophilia and make replacement therapy problematic. The workshop covered a broad range of topics. The workshop provided valuable information, but additional time was needed at the close of the meeting for continued dialogue on important topics. At the end of the workshop, we invited written comments to provide an opportunity for a full discussion of issues.

We have established this docket to encourage interested parties to continue to provide information about Factor VIII inhibitors, comments on the workshop, and comments on information submitted to the docket by other interested parties. We also request that those who have already submitted written comments and information to FDA resubmit the same comments to the docket to ensure their adequate consideration since this information was not previously submitted to the docket. We also posted this request for comments and information at http://www.fda.gov/cber/meetings/fctrvIII112103L.htm .

Comments submitted to the docket will assist us in determining the need for and feasibility of establishing new inhibitor assay standards and methodologies, stakeholders' opinions about current upper and lower limits of acceptable inhibitor formation in clinical trials, and the use of plasma-derived versus recombinant Factor VIII controls in pharmacokinetic trials, among other issues. We may also consider the information in preparing any future guidance on clinical trials to evaluate potential inhibitor formation from Factor VIII products.

Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments regarding the workshop. Submit a single copy of electronic comments or two paper copies of any mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in brackets in the heading of this document. A copy of this notice, the slide presentations and transcript from the workshop, and received comments are available for public examination in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

Persons with access to the Internet may obtain the slide presentations at http://www.fda.gov/cber/summaries.htm and the transcript of the workshop at http://www.fda.gov/cber/minutes/workshop-min.htm .

In the Federal Register of January 23, 2002 (67 FR 3060), FDA published a final rule establishing criteria and procedures for additional conditions to become eligible for consideration in the OTC drug monograph system. These criteria and procedures, codified in § 330.14 (21 CFR 330.14), permit OTC drugs initially marketed in the United States after the OTC drug review began in 1972 and OTC drugs without any marketing experience in the United States to become eligible for FDA's OTC drug monograph system. The term “condition” means an active ingredient or botanical drug substance (or a combination of active ingredients or botanical drug substances), dosage form, dosage strength, or route of administration, marketed for a specific OTC use (§ 330.14(a)). The criteria and procedures also permit conditions that are regulated as cosmetics or dietary supplements in foreign countries but that would be regulated as OTC drugs in the United States to become eligible for the OTC drug monograph system.

Sponsors must provide specific data and information in a TEA to demonstrate that the condition has been marketed for a material time and to a material extent to become eligible for consideration in the OTC drug monograph system. When the condition is found eligible, FDA publishes a notice of eligibility and request for safety and effectiveness data for the proposed OTC use. The TEA that the agency reviewed (Ref. 1) and FDA's evaluation of the TEA (Ref. 2) have been placed on public display in the Division of Dockets Management (see ADDRESSES ) under the docket number found in brackets in the heading of this document. Information deemed confidential under 18 U.S.C. 1905, 5 U.S.C. 552(b), or 21 U.S.C. 331(j) was deleted from the TEA before it was placed on public display.

The condition triclosan, 0.3 percent maximum, as an antigingivitis ingredient in dental pastes and oral rinses will be evaluated for inclusion in the monograph being developed for OTC oral health care drug products (21 CFR part 356). FDA will include this condition in its review of antigingivitis/antiplaque drug products. FDA published the advance notice of proposed rulemaking for these products in the Federal Register of May 29, 2003 (68 FR 32232). FDA invites all interested persons to submit data and information, as described in § 330.14(f), on the safety and effectiveness of this active ingredient for this use, so that FDA can determine whether it can be GRAS/E and not misbranded under recommended conditions of OTC use.

Interested persons should, on or before 90 days after the date of publication in the Federal Register , submit comments, data, and information to the Division of Dockets Management (see ADDRESSES ). Three copies of all comments, data, and information are to be submitted. Individuals submitting written information or anyone submitting electronic comments may submit one copy. Submissions are to be identified with the docket number found in brackets in the heading of this document and may be accompanied by supporting information. Received submissions may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. Information submitted after the closing date will not be considered except by petition under 21 CFR 10.30.

Under § 330.14(h), any product containing the condition for which data and information are requested may not be marketed as an OTC drug in the United States at this time unless it is the subject of an approved new drug application or abbreviated new drug application.

The following references are on display in the Division of Dockets Management (see ADDRESSES ) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

The Mandatory Guidelines were developed in accordance with Executive Order 12564 and section 503 of Public Law 100-71. Subpart C of the Guidelines, “Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies,” sets strict standards that laboratories must meet in order to conduct urine drug testing for Federal agencies. To become certified, an applicant laboratory must undergo three rounds of performance testing plus an on-site inspection.

To maintain that certification, a laboratory must participate in a quarterly performance testing program plus periodic, on-site inspections.

Laboratories which claim to be in the applicant stage of certification are not to be considered as meeting the minimum requirements expressed in the HHS Mandatory Guidelines. A laboratory must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA) which attests that it has met minimum standards.

In accordance with Subpart C of the Mandatory Guidelines, the following laboratories meet the minimum standards set forth in the Mandatory Guidelines:

**The following laboratory had its suspension lifted on June 23, 2004: Doctors Laboratory, Inc., 2906 Julia Drive, Valdosta, GA 31602, 229-671-2281.

What Authority Does the Secretary of DHS Have to Terminate the Designation of Montserrat Under the TPS Program?

On March 1, 2003, the functions of the Immigration and Naturalization Service (Service) transferred from the Department of Justice to DHS pursuant to the Homeland Security Act of 2002, Public Law 107-296. The responsibilities for administering the TPS program held by the Service were transferred to the Bureau of Citizenship and Immigration Services (BCIS).

Under section 244 of the Immigration and Nationality Act (Act), 8 U.S.C. 1254a, the Secretary of DHS, after consultation with appropriate agencies of the Government, is authorized to designate a foreign state (or part thereof) for TPS. The Secretary of DHS may then grant TPS to eligible nationals of that foreign state (or aliens having no nationality who last habitually resided in that state).

Section 244(b) (3)(A) of the Act requires the Secretary of DHS to review, at least 60 days before the end of the TPS designation or any extension thereof, the conditions in a foreign state designated under the TPS program to determine whether the conditions for a TPS designation continue to be met and, if so, the length of an extension of TPS. 8 U.S.C. 1254a(b)(3)(A). If the Secretary of DHS determines that the foreign state no longer meets the conditions for the TPS designation, he shall terminate the designation, but such termination may not take effect earlier than 60 days after the date the Federal Register notice of termination is published. 8 U.S.C. 1254a(b)(3)(B). The Secretary of DHS may determine the appropriate effective date of the termination for the purpose of providing an orderly transition. 8 U.S.C. 1254a(d)(3).

Why Did the Secretary of DHS Decide to Terminate the TPS Designation for Montserrat as of February 27, 2005?

On August 28, 1997, the Attorney General published a notice in the Federal Register designating Montserrat under the TPS program based upon volcanic eruptions causing a substantial, but temporary, disruption to living conditions that rendered Montserrat unable, temporarily, to adequately handle the return of its nationals. 62 FR 45685, 45686 (August 28, 1997). The Attorney General also designated Montserrat for TPS due to extraordinary and temporary conditions that prevented Montserratians from safely returning to Montserrat. Id. Since then, the TPS designation of Montserrat has been extended six times, in each instance based upon a determination that the conditions warranting the designation continued to be met. See 68 FR 39106 (July 1, 2003); 67 FR 47002 (July 17, 2002); 66 FR 40834 (August 3, 2001); 65 FR 58806 (October 2, 2000); 64 FR 48190 (September 2, 1999); 63 FR 45864 (August 27, 1998).

Since the date of the most recent extension, DHS and the Department of State (DOS) have continued to review conditions in Montserrat. In particular, DHS examined whether the conditions remain “temporary” as required in sections 244(b)(1)(B) and (C) of the Act. 8 U.S.C. 1254a(b)(1)(B) and (C). Under general rules of statutory construction, it is assumed that the legislative intent of Congress is expressed by the ordinary or plain meaning of a word. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987); INS v. Phinpathya, 464 U.S. 183, 189 (1984). The plain meaning of “temporary” is “lasting for a time only; existing or continuing for a limited time; not permanent.” Webster's Revised Unabridged Dictionary (1998).

In making a determination, the Secretary of DHS considered country condition information provided by DOS and the BCIS Resource Information Center (RIC). Although the conditions in Montserrat continue to warrant concern, the Secretary has determined that the volcanic eruptions can no longer be considered temporary in nature. Scientists say that eruptions of the type that have occurred at Soufriere Hills generally last 20 years, but the volcano could continue to erupt sporadically for decades. RIC Report (May 2004).

According to the RIC, the July 2003 eruption was the largest eruption since the volcano emerged from dormancy in 1995. Id. In addition to affecting electricity supplies and telephone service, this eruption extensively damaged the island's water supply, agricultural sector, and fishery sector. Id. In March 2004, another major eruption sent a massive cloud of ash into the air and pyroclastic flows down the eastern flank of the Soufriere Hills volcano. Id. Volcanic ash settled on the ground up to four inches in places and left coatings of grit on surrounding Caribbean islands. Id. At present, fishing boats and other marine vessels are barred from entering an international maritime exclusion zone that covers a significant portion of the coastline. Id.

The island remains divided into a northern “safe zone” and a southern “exclusion zone.” Id. The exclusion zone, which is closed to the public, covers more than half of Montserrat. Id. As a result, many nationals of Montserrat remain unable to return to their homes in the southern part of the island. DOS Recommendation (June 8, 2004).

In addition to the prospect of volcanic destruction, returning residents possibly would be subject to contracting the lung disease silicosis and other health risks caused by ash that periodically covers much of the island. Id.

The RIC notes that, according to one study, eruptions of the type that have occurred at Soufriere Hills generally last 20 years, but the volcano could continue to erupt sporadically for decades. RIC Report. According to another study conducted by the Scientific Advisory Committee on Montserrat Volcanic Activity, there is only a 3.2% chance that this period of volcanic activity will stop within the next six months. Id. There is a 50% probability that the volcanic activity will last another 14-15 years, and a 5% chance that the volcanic activity will continue for over 180 years. Id.

Based upon this review, the Secretary of DHS, after consultation with appropriate government agencies, finds that Montserrat no longer continues to meet the conditions for designation under the TPS program. 8 U.S.C. 1254a(b)(3)(A). Because the volcanic eruptions are unlikely to cease in the foreseeable future, they can no longer be considered “temporary” as required by Congress when it enacted the TPS statute. 8 U.S.C. 1254a(b)(1)(B) and (C). Therefore, the Secretary of DHS is terminating the TPS designation for Montserrat effective February 27, 2005. 8 U.S.C. 1254a(b)(3)(B).

To provide for an orderly transition, nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) who have been granted TPS will automatically retain TPS and have their current EADs extended until the termination date. 8 U.S.C. 1254a(a)(2) and (d)(3). These persons are urged to use the time before termination of their TPS to prepare for and arrange their departure from the United States or, in the alternative, apply for other immigration benefits for which they are eligible.

No. If you already have been granted TPS benefits through the Montserrat TPS program, you do not have to re-register to keep your TPS benefits. You will automatically retain TPS until the termination date. However, your TPS status shall be withdrawn pursuant to section 244(c)(3) of the Act because of ineligibility for TPS, prior failure to timely re-register if there was not good cause for such failure, or failure to maintain continuous physical presence in the United States. 8 U.S.C. 1254a(c)(3), 8 CFR 244.14. When termination occurs on February 27, 2005, you will no longer have TPS.

The Secretary of DHS has decided to extend automatically the validity of EADs to provide for an orderly transition leading up to the effective date for the termination of the Montserrat TPS designation. Therefore, the validity of the applicable EADs is automatically extended for a period of six months, to February 27, 2005. 8 U.S.C. 1254a(a)(2) and (d)(3).

To receive an automatic extension of his or her EAD, an individual must be a national of Montserrat (or an alien having no nationality who last habitually resided in Montserrat) who has applied for and received an EAD under the TPS designation of Montserrat. This automatic extension is limited to EADs issued on either Form I-766, Employment Authorization Document, or Form I-688B, Employment Authorization Card, bearing an expiration date of August 27, 2004. The EAD must also be either (1) a Form I-766 bearing the notation “A-12” or “C-19” on the face of the card under “Category,” or (2) a Form I-688B bearing the notation “274A.12(A)(12)” or “274A.12(C)(19)” on the face of the card under “Provision of Law.”

No. Qualified individuals do not have to apply for this extension of their TPS-related EADs to February 27, 2005 because it is automatic.

For completion of the Form I-9 at the time of hire or re-verification, qualified individuals who have received an extension of their EADs by virtue of this Federal Register notice may present to their employer a TPS-related EAD as proof of identity and employment authorization until February 27, 2005. To minimize confusion over this extension at the time of hire or re-verification, qualified individuals may also present to their employer a copy of this Federal Register notice regarding the automatic extension of employment authorization documentation to February 27, 2005. In the alternative, any legally acceptable document or combination of documents listed in List A, List B, or List C of the Form I-9 may be presented as proof of identity and employment eligibility; it is the choice of the employee.

For purposes of verifying identity and employment eligibility or re-verifying employment eligibility on the Form I-9 until February 27, 2005, employers of Montserrat TPS class members whose EADs have been automatically extended by this notice must accept such EAD if presented. An EAD that has been automatically extended by this notice will contain an expiration date of February 27, 2005, and must be either (1) a Form I-766 bearing the notation “A-12” or “C-19” on the face of the card under “Category,” or (2) a Form I-688B bearing the notation “274A.12(A)(12)” or “274A.12(C)(19)” on the face of the card under “Provision of Law.” New EADs or extension stickers showing the February 27, 2005 expiration date will not be issued.

Employers should not request proof of Montserratian citizenship. Employers presented with an EAD that this Federal Register notice has extended automatically which appears to be genuine, and appears to relate to the employee, should accept the EAD as a valid “List A” document and should not ask for additional Form I-9 documentation. This action by the Secretary of the DHS through this Federal Register notice does not affect the right of an employee to present any legally acceptable document as proof of identity and eligibility for employment.

Employers are reminded that the laws prohibiting unfair immigration-related employment practices remain in full force. For questions, employers may call the BCIS Office of Business Liaison Employer Hotline at 1-800-357-2099 to speak to a BCIS representative. Also, employers may call the U.S. Department of Justice Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) Employer Hotline at 1-800-255-8155 or 1-800-362-2735 (Telecommunications Device for the Deaf or “TDD”). Employees or applicants may call the OSC Employee Hotline at 1-800-255-7688 or 1-800-237-2515 (TDD) for information regarding the automatic extension. Additional information is available on the OSC Web site at http://www.usdoj.gov/crt/osc/index.html.

This notice terminates the designation of Montserrat for TPS. Nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) in the United States who believe returning to Montserrat is not possible or not preferable for them may be eligible to apply for another immigration status, such as Lawful Permanent Resident (LPR) or a non-immigrant classification. Eligibility for these and other immigration benefits is determined individually on a case-by-case basis. For information on eligibility and how to apply, visit the BCIS web site at http://uscis.gov or call the BCIS National Customer Service Center at 1-800-375-5283.

In addition, nationals of Montserrat are eligible to apply for British citizenship based upon their status as British Overseas Territory Citizens (BOTCs). As such, nationals of Montserrat have a claim to British citizenship, as do all Overseas Territory inhabitants. However, unlike all other BOTCs, as of August 28, 1996, the British government waived the requirement that nationals of Montserrat wait three years after establishing residence in the United Kingdom before becoming eligible for social benefits or treatment by the National Health Service. This provision is scheduled to remain in place through 2005, at which time it is slated for review.

After the termination of the TPS designation of Montserrat becomes effective on February 27, 2005, these TPS beneficiaries will maintain the same immigration status they held prior to TPS (unless that status has since expired or been terminated) or any other status they may have acquired while registered for TPS. Accordingly, if an alien held no lawful immigration status prior to being granted TPS and did not obtain any other status during the TPS period, he or she will revert to unlawful status upon the termination of the TPS designation.

Former TPS beneficiaries will no longer be eligible for a stay of removal or an EAD pursuant to TPS. TPS-related EADs will expire on February 27, 2005, and will not be renewed.

Termination of the TPS designation for Montserrat does not necessarily affect pending applications for other forms of immigration relief or protection, though former TPS beneficiaries will begin to accrue unlawful presence as of February 27, 2005 if they have not been granted any other immigration status or protection or if they have no pending application for certain benefits.

By the authority vested DHS under section 244(b)(3) of the Act, DHS has consulted with the appropriate Government agencies concerning conditions in Montserrat. 8 U.S.C. 1254a(b)(3)(A). Based on these consultations, DHS has determined that Montserrat no longer meets the conditions for designation of TPS under section 244(b)(1)(B) and 244(b)(1)(C) of the Act. 8 U.S.C. 1254a(b)(1)(B) and 8 U.S.C. 1254a(b)(1)(C).

Accordingly, DHS orders as follows:

(1) Pursuant to sections 244(b)(1)(B) and 244(b)(1)(C) of the Act, the TPS designation of Montserrat will terminate effective February 27, 2005, six months after the end of the current extension.

(2) DHS estimates that there are approximately 292 nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) who currently receive TPS benefits.

(3) To provide for an orderly transition, nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) who have been granted TPS under the Montserrat designation will automatically retain TPS until the February 27, 2005 termination date. However, an individual's TPS shall be withdrawn pursuant to section 244(c)(3) of the Immigration and Nationality Act and 8 CFR 244.14 because of ineligibility for TPS, prior failure to timely re-register if there was not good cause for such failure, or failure to maintain continuous physical presence in the United States.

(4) TPS-related Employment Authorization Documents that expire on August 27, 2004, are extended automatically until February 27, 2005 for qualified nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat).

(5) Information concerning the termination of TPS for nationals of Montserrat (and aliens having no nationality who last habitually resided in Montserrat) will be available at local BCIS offices upon publication of this notice and through the BCIS National Customer Service Center at 1-800-375-5283. This information will also be published on the BCIS Web site at http://uscis.gov.

By Federal law, all lands within the National Wildlife Refuge System are to be managed in accordance with an approved comprehensive conservation plan. This plan guides management decisions and identifies the goals, long-range objectives, and strategies for achieving refuge purposes. The planning process will consider many elements, including wildlife and habitat management, public recreational activities, and cultural resource protection. Public input into this planning process is essential.

Choctaw National Wildlife Refuge was established in 1964 on lands acquired by the Corps of Engineers in conjunction with the Coffeeville Lock and Dam project. The refuge is located 10 miles northwest of Coffeeville, Alabama, across the Tombigbee River, and north of Highway 84 in southwest Alabama, approximately 80 miles north of Mobile. The 4,218-acre refuge encompasses approximately 1,802 acres of lakes, sloughs, and creeks; 2,265 acres of bottomland hardwoods; and 151 acres of croplands and moist-soil units. Access to this bottomland hardwood refuge is sometimes only possible by boat in the spring. Road access is limited due to frequent flooding and storms.

The primary purpose of the refuge is to provide wood duck brood habitat and serve as a protected wintering area for waterfowl. Up to 200 broods of wood ducks are produced annually in the refuge's artificial nest boxes, and wintering waterfowl numbers can exceed 10,000. Following a successful bald eagle hacking program in the early 1990s, the refuge has played host to a nesting pair of eagles each winter.

Under Section 11 of the Indian Gaming Regulatory Act of 1988 (IGRA) Public Law 100-497, 25 U.S.C. 2710, the Secretary of the Interior shall publish in the Federal Register notice of approved Tribal-State compacts for the purpose of engaging in Class III gaming activities on Indian lands.

The Assiniboine and Sioux Tribes of the Fort Peck Reservation and the State of Montana have agreed to an extension of the existing agreement and will extend the compact until July 1, 2005. The Principal Deputy Assistant Secretary—Indian Affairs, Department of the Interior, through her delegated authority, is publishing notice that the Extension of Agreement for Class III gaming between the Assiniboine and Sioux Tribes of the Fort Peck Reservation and the State of Montana is in effect.