The Council will continue its study of the Special Supplemental Nutrition Program for Women, Infants and Children, and the Commodity Supplemental Food Program. The agenda items will include a discussion of general program issues. Meetings of the Council are open to the public. Members of the public may participate, as time permits. Members of the public may file written statements with the contact person named above, before or after the meeting.

The meetings are open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, public input opportunity will be provided and individuals will have the opportunity to address the Committee at that time.

At the request of interested parties, the Department of Commerce initiated administrative reviews of the antidumping duty orders on antifriction bearings and parts thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom for the period May 1, 2002, through April 30, 2003. See, Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part , 68 FR 39055, (July 1, 2003), and Initiation of Antidumping and Countervailing Duty Administrative Reviews, Requests for Revocation in Part and Deferral of Administrative Reviews , 68 FR 44524, (July 29, 2003). On February 9, 2004, the Department published its preliminary findings. See Antifriction Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom: Preliminary Results of Antidumping Duty Administrative Reviews, Partial Rescission of Administrative Reviews, Notice of Intent to Rescind Administrative Reviews, and Notice of Intent to Revoke Order in Part , 69 FR 5950, (February 9, 2004). The final results of reviews were originally scheduled for June 8, 2004. On May 3, 2004, the Department published a notice extending the date for issuing the final results of these reviews until August 9, 2004. See Antifriction Bearings and Parts Thereof From France, Germany, Italy, Japan, Singapore, and the United Kingdom: Extension of Time Limit for Final Results of Antidumping Duty Administrative Reviews , 69 FR 24121, (May 3, 2004). Extension of Time Limit for Final Results of Antidumping Duty Administrative Reviews

Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), requires the Department to issue the final results of an antidumping duty administrative review within 120 days of the date on which the preliminary results are published. The administering authority may extend the period of time for making a final determination without extending the time for making a preliminary determination, if such determination is made no later than 300 days after the date on which the preliminary determination is published. Completion of the final results of these reviews within the previously-extended period is not practicable because of the large number of respondents and the complexity of the issues raised in these reviews. Therefore, we are extending the time period for issuing the final results of these reviews by 30 days, until September 8, 2004.

This notice is published in accordance with section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2).

On March 23, 2004, the Department initiated antidumping duty investigations of imports of certain circular welded carbon quality line pipe (“line pipe”) from Mexico, the Republic of Korea (“Korea”), and the PRC. See Notice of Initiation of Antidumping Duty Investigations: Certain Circular Welded Carbon Quality Line Pipe from Mexico, the Republic of Korea, and the People's Republic of China, 69 FR 16521 (March 30, 2004) (“Initiation Notice”). Section 733(b) of the Act requires the Department to make a preliminary determination no later than 140 days after the date of initiation. On July 21, 2004, the Department extended the preliminary determinations of the line pipe investigations for Mexico and Korea in accordance with section 733(c)(1)(B) of the Act. See Postponement of Preliminary Determinations of Antidumping Duty Investigations: Certain Circular Welded Carbon Quality Line Pipe from Mexico and the Republic of Korea 69 FR 44641 (July 27, 2004). The preliminary determinations in the investigation of line pipe with respect to Mexico and Korea are now due not later than September 29, 2004.

On August 5, 2004, the Department received a request from American Steel Pipe Division of ACIPC, IPSCO Tubulars Inc., Lone Star Steel Company, Maverick Tube Corporation, Northwest Pipe Company, and Stupp Corporation, petitioners in these investigations, a request for an extension of the preliminary determination with respect to line pipe from the PRC. See Letter from Petitioners requesting an extension of the preliminary determination on certain circular welded carbon quality line pipe from China, dated August 5, 2004 (“Extension Request”).

19 CFR 351.205(e) states that a petitioner can request a postponement of the preliminary determination 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Notification of such a postponement will be given by the Department no later than 20 days before the scheduled date of the preliminary determination. See 19 CFR 351.205(f).

Although the petitioners' request was filed beyond the deadline of 25 days and this notice to the parties is delayed, pursuant to 19 CFR 351.302(b), the Department “may, for good cause, extend any time limit established by this Part.” In this instance, the Department finds good cause to extend the time limit for notification of the extension of the preliminary determination for the reasons stated below.

To begin, the period of investigation (“POI”) in the line pipe investigation of the PRC, a non-market economy (“NME”), is July 1, 2003, through December 31, 2003. In NME cases, the Department values data using prices from a comparable market economy that is a significant producer of comparable merchandise. However, the availability of such prices that are properly contemporaneous with the POI is limited at this time. The Department needs additional time in order for the Department to have contemporaneous information from a comparable market economy on the record to corroborate properly the secondary information to be used as the basis of the margin for the PRC entity.

In addition, as stated in the Extension Request, the U.S. International Trade Commission (“ITC”) reached its affirmative preliminary injury determination for Mexico, Korea, and the PRC on May 3, 2004. Were the Department to proceed with its preliminary determination with respect to the PRC, it would be necessary that the ITC issue a separate final determination for the PRC, much earlier than with respect to Mexico and Korea. The petitioners in this investigation have requested that the Department align these cases at its preliminary determination to eliminate the necessity for separate ITC determinations. In the interest of administrative efficiency, the Department concludes that the Mexico, Korea, and PRC cases should remain on a consistent timeline.

For the reasons identified above, we are postponing the preliminary determinations under Section 733(c)(1)(A) of the Act by 50 days, to no later than September 29, 2004. The deadline for the final determinations will continue to be 75 days after the date of the preliminary determinations. This notice is issued and published pursuant to sections 733(f) and 777(i) of the Act.

We preliminarily determine that outboard engines from Japan are being sold, or are likely to be sold, in the United States at less than fair value (LTFV), as provided in section 733 of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at LTFV are shown in the Suspension of Liquidation section of this notice. Interested parties are invited to comment on this preliminary determination. We will make our final determination not later than 135 days after the date of publication of this preliminary determination.

This investigation was initiated on January 28, 2004. 1 See Notice of Initiation of Antidumping Duty Investigation: Outboard Engines from Japan, 69 FR at 5316 (February 4, 2004) (Initiation Notice). Since the initiation of the investigation, the following events have occurred:

The Department of Commerce (the Department) set aside a period for all interested parties to raise issues regarding product coverage. See Initiation Notice, 69 FR at 5317. On February 24, 2004, the following companies submitted timely responses: American Honda Motor Co., Inc., and Honda Motor Co., Ltd. (Honda); Nissan Marine Co., Ltd. (Nissan); Suzuki Motor Corporation and American Suzuki Motor Corporation (Suzuki); Tohatsu Corporation, Tohatsu Marine Corporation, and Tohatsu America Corporation (Tohatsu); and Yamaha Motor Company, Ltd., Yamaha Marine Company, Ltd., and Yamaha Motor Corporation, USA (Yamaha).

On February 3, 2004, the Department issued a letter providing interested parties an opportunity to comment on the Department's proposed model match characteristics and its hierarchy of characteristics. The petitioner submitted a timely response on February 20, 2004. Honda, Nissan, Suzuki, Tohatsu, and Yamaha also submitted comments on February 20, 2004. Bombardier Motor Corporation and Bombardier Recreational Products Inc. (Bombardier), a domestic interested party, submitted a timely response on February 27, 2004. Based on these comments, we determined the appropriate model match characteristics and included them in the antidumping questionnaire issued to Yamaha on March 11, 2004.

On February 23, 2004, the United States International Trade Commission (ITC) preliminarily determined that there is a reasonable indication that imports of the products subject to this investigation are materially injuring an industry in the United States producing the domestic like product. See Outboard Engines from Japan, 69 FR at 9643 (March 1, 2004) (ITC Preliminary Determination).

On April 30, 2004, the petitioner requested that the Department extend the preliminary determination in this investigation by 30 days. Because there were no compelling reasons to deny the request, we postponed the preliminary determination to July 16, 2004, under section 733(c)(1) of the Act. On June 22, 2004, the petitioner made an additional request to extend the preliminary deadline 20 days beyond the July 16, 2004, deadline. Once again, there were no compelling reasons to deny the request, and the Department made a second postponement of the preliminary determination to August 5, 2004.

Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise. Section 351.210(e)(2) of the Department's regulations requires that exporters requesting postponement of the final determination must also request an extension of the provisional measures referred to in section 733(d) of the Act from a four-month period until not more than six months. We received a request to postpone the final determination from the respondent, Yamaha. In its request, the respondent consented to the extension of provisional measures to no longer than six months. Since this preliminary determination is affirmative, the request for postponement is made by an exporter that accounts for a significant proportion of exports of the subject merchandise, and there is no compelling reason to deny the respondent's request, we have extended the deadline for issuance of the final determination until the 135th day after the date of publication of this preliminary determination in the Federal Register and have extended provisional measures to no longer than six months.

Section 777A(c)(1) of the Act directs the Department to calculate individual dumping margins for each known exporter and producer of the subject merchandise. Where it is not practicable to examine all known producers/exporters of subject merchandise, section 777A(c)(2) of the Act permits the Department to investigate either: (1) A sample of exporters, producers, or types of products that is statistically valid, based on the information available at the time of selection; or (2) exporters and producers accounting for the largest volume of the subject merchandise that can reasonably be examined. In the petition, the petitioner identified six potential producers and exporters of outboard engines in Japan: Honda, Nissan, Suzuki, Tohatsu, Tohatsu Marine Corporation (TMC), and Yamaha. On March 4, 2004, Tohatsu placed information on the record indicating that Nissan is not a producer, although it exports engines produced by Tohatsu to the U.S. market. 2 Information placed on the record by the petitioner indicated that it was appropriate to treat Tohatsu and TMC as a single entity. 3

On March 1, 2004, the Department requested information on the total quantity and value of subject merchandise exported to the United States during the period of investigation (POI), and the total quantity and value of subject merchandise sold in the United States during the POI, by the Japanese producers and exporters of the subject merchandise. On March 4, 2004, the Department received timely responses from Honda, Nissan, Suzuki, Tohatsu, and Yamaha. For selecting respondents, the Department considered these statistics and statistics from U.S. Customs and Border Protection (CBP). Using these data, we selected Yamaha as the mandatory respondent. 4 On March 11, 2004, the Department issued an antidumping questionnaire to Yamaha.

The POI is January 1, 2003, through December 31, 2003. This period corresponds to the four most recent fiscal quarters prior to the month of filing of the petition ( i.e. , January, 2004) involving imports from a market economy, and is in accordance with our regulations. See 19 CFR 351.204(b)(1).

For the purpose of this investigation, the products covered are outboard engines (also referred to as outboard motors), whether assembled or unassembled; and powerheads, whether assembled or unassembled. The subject engines are gasoline-powered spark-ignition, internal combustion engines designed and used principally for marine propulsion for all types of light recreational and commercial boats, including, but not limited to, canoes, rafts, inflatable, sail and pontoon boats. Specifically included in this scope are two-stroke, direct injection two-stroke, and four-stroke outboard engines.

Outboard engines are comprised of (1) a powerhead assembly, or an internal combustion engine, (2) a midsection assembly, by which the outboard engine is attached to the vehicle it propels, and (3) a gearcase assembly, which typically includes a transmission and propeller shaft, and may or may not include a propeller. To the extent that these components are imported together, but unassembled, they collectively are covered within the scope of this investigation. An “unassembled” outboard engine consists of a powerhead as defined below, and any other parts imported with the powerhead that may be used in the assembly of an outboard engine.

Powerheads are comprised of, at a minimum, (1) a cylinder block, (2) pistons, (3) connecting rods, and (4) a crankshaft. Importation of these four components together, whether assembled or unassembled, and whether or not accompanied by additional components, constitute a powerhead for purposes of this investigation. An “unassembled” powerhead consists of, at a minimum, the four powerhead components listed above, and any other parts imported with it that may be used in the assembly of a powerhead.

The scope does not include parts or components (other than powerheads) imported separately.

The outboard engines and powerheads subject to this investigation are currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings 8407.21.0040 and 8407.21.0080. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive.

In the Initiation Notice, we invited all interested parties to raise issues and comment regarding the product coverage under the scope of this investigation. We received comments from Honda, Nissan, Suzuki, Tohatsu, and Yamaha and rebuttal comments from the petitioner. We have preliminarily determined to continue to include engines under 25 horsepower (hp) and powerheads sold as spare parts in the scope of the investigation. We have also preliminarily determined that powerheads and completed engines constitute a single class or kind of merchandise.

Tohatsu requested that the scope of the investigation be revised to exclude all outboard engines under 25 hp. Tohatsu argues that the Department has the authority to both limit and expand the scope of an investigation proposed in a petition. 5 Tohatsu maintains that domestic producers import all or, if not all, the vast majority of their engines under 25 hp. According to Tohatsu, the petitioner purchases the vast majority of its under 25 hp line from its Japanese joint venture, Tohatsu Marine Corporation. The remainder of the petitioner's under 25 hp line consists of either limited domestic production or outboard engines assembled from powerheads imported from Japan.

Further, Tohatsu argues, the emission standards established by the U.S. Environmental Protection Agency (EPA), which mandate that outboard motor manufacturers reduce their average emissions in each year from the 1998 through 2005 model years, will prevent the petitioner from manufacturing two-stroke carbureted engines under 25 hp after 2006. Tohatsu maintains that this would leave the U.S. customers of these engines no choice but to buy an imported motor on which antidumping duties have been imposed.

Finally, Tohatsu argues that small horsepower engines do not compete with large engines. According to Tohatsu, engines under 25 hp are lightweight, portable, hand-throttle models which do not require special factory or dealer-installed rigging. They are used primarily for inflatable dinghies and small boats, or as the auxiliary power source for sailboats. Large engines, Tohatsu states, are not portable, require specialized rigging, and are used as the main power source for larger boats and specialty boats where speed is required. Tohatsu believes that this lack of interchangeability supports excluding engines under 25 hp from the scope of the investigation.

The petitioner states that outboard engines under 25 hp unambiguously come within the literal terms of the petition. 6 The petitioner also argues that the Department gives “ample deference to the petitioners on the definition of the product for which they seek relief.”  7 Although the petitioner concedes that the Department has the ultimate authority to define the scope of the investigation, it generally does not alter the petitioner's scope definition except to clarify ambiguities in the language or address administrability problems. 8

The petitioner states that Mercury does produce domestically a range of engines under 25 hp. However, the petitioner notes that it is not necessary that the domestic industry produce products identical to every item imported or to every single segment of the subject merchandise continuum. Further, the petitioner contends that Tohatsu's argument that 2-stroke carbureted engines will not be available for sale after 2005 due to EPA regulations is incorrect. The petitioner states that the EPA regulations impose emission standard levels on outboard engines, but do not prohibit specific technologies.

In addition, the petitioner contends that outboard motors under 25 hp do compete with other engines. The petitioner argues that a 25 hp engine competes with both 20 and 30 hp engines, and that there is no clear dividing line at 25 hp that would merit making it a cut-off point for the purpose of excluding engines from the scope of the investigation.

When the Department receives a petition that meets the requirements of the statute, it must initiate an investigation  9 and, if warranted by the evidence, provide the relief requested. 10 The starting place for determining the merchandise that is to be the subject of an investigation is the petition itself. 11 While the Department does have the authority to define or clarify the scope of an investigation, 12 it does not use its authority to define the scope of an investigation in a manner that would thwart the statutory mandate to provide the relief requested in the petition. As a result, absent an “overarching reason to modify” the scope in the petition, the Department accepts it. 13

Engines having 25 hp or less clearly meet the definition of covered merchandise in that the scope makes no limitation on horsepower. Further, we agree with the petitioner that it is not necessary that the domestic industry produce all products covered by the scope. We note, however, that Mercury has placed evidence on the record indicating that it does produce certain engines under 25 hp. Therefore, since the scope language of this case clearly includes engines of 25 hp or less, we continue to include them in the scope of the investigation.

Honda and Suzuki requested that powerheads imported as spare parts solely for the purpose of repairing outboard engines previously sold by the same manufacturer be excluded from the scope of the investigation. Both Honda and Suzuki emphasize that they import a limited number of powerheads for this purpose. Suzuki states that, with most of these imports, the cost of the powerhead was reimbursed as a warranty cost. Honda states it does not have any “sale” prices for these units, as they were used almost exclusively to satisfy warranty claims.

The petitioner argues that the Department should deny Honda and Suzuki's request to exclude powerheads from the scope of the investigation based on their intended use. According to the petitioner, the proposed exclusion would be impossible to monitor and would present an obvious means of circumventing the order. To the extent the companies do not have sale prices for these units, the petitioner suggests that the Department could excuse respondents from reporting these units if the imports are indeed very limited. The petitioner asserts, however, that these units should not be excluded from the scope.

As discussed above, absent an “overarching reason to modify” the scope in the petition, the Department accepts it. In the instant case, the scope specifically includes powerheads. Attempting to exclude certain powerheads from the scope of the investigation based on usage would cause significant administrability problems for CBP, should an antidumping duty order ensue. Therefore, we continue to include all powerheads in the scope of the investigation, regardless of the reason for importation.

The term “class or kind” is equated with the term “subject merchandise” at section 771(25) of the Act. (This provision defines subject merchandise as the class or kind of merchandise within the scope of an investigation or other proceeding covered by the statute.) The Department bases its determination of whether the merchandise, as described in the scope of a proceeding, constitutes a single class or kind of merchandise on an evaluation of the criteria set forth in Diversified Products v. United States, 572 F. Supp. 883, 889 (CIT 1983) (Diversified Products), which look to differences in: (1) The general physical characteristics of the merchandise, (2) the expectations of the ultimate purchaser, (3) the ultimate use of the merchandise, (4) the channels of trade in which the merchandise moves, and (5) the manner in which the product is advertised or displayed. Both parties addressed the Diversified Products criteria.

Yamaha argues that powerheads should be treated as a separate class or kind from completed engines, and that powerheads should be excluded from the scope of the investigation. According to Yamaha, the Department's practice has been to treat sub-assemblies and semi-finished products as a separate class or kind. 14

The petitioner rebuts that the Department has included less than complete merchandise within the scope of the investigation with complete merchandise in numerous cases, and has not determined less than complete and complete merchandise to be separate classes or kinds. 15

Yamaha maintains that powerheads have distinct physical characteristics from finished outboard motors in that the components making up a powerhead constitute a small portion of the overall parts and systems incorporated within a finished engine. Yamaha states that “according to the petition, powerheads consist of the cylinder block, pistons, connecting rods and the crankshaft.”  16

The petitioner argues that the general physical characteristics of both powerheads and outboard engines are very similar. The outboard engine, the petitioner points out, contains all the physical characteristics of the powerhead, which is the “engine” part of an outboard engine. Further, the petitioner states that the scope of the investigation defines the minimum defining characteristics of a powerhead. A powerhead may also include additional components. The petitioner contends that the powerheads covered in the scope of the investigation include assemblies that consist of a significant percentage of a completed outboard engine. For this reason, the petitioner maintains that there is a significant overlap in the general physical characteristics of powerheads and outboard engines, and no clear dividing line exists.

According to Yamaha, the ultimate purchaser of a finished engine is the consumer who buys the engine as part of a boat package and intends to use that engine to power the boat. The ultimate purchasers of powerheads are outboard motor manufacturers, who intend to incorporate this component into their own engines. Because of the large degree of further manufacturing necessary to convert a powerhead to a finished engine, these two products are not interchangeable—a customer could not buy a powerhead to use as the propulsion system on a boat. Therefore, Yamaha maintains that the products have entirely different end-users and, as a result, different expectations among the particular end-users.

The petitioner maintains that there is almost complete overlap in the end uses of outboard engines and powerheads. Outboard engines are used to propel a boat; powerheads are used to provide power to the outboard engine in order to propel a boat. According to the petitioner, because every outboard engine contains a powerhead, the end uses are the same. The petitioner concedes that a powerhead alone cannot propel a boat, but finds this fact irrelevant because a powerhead has no end use unless it is propelling a boat as part of an outboard engine. Further, the petitioner points out that powerhead failure is not uncommon, and when it happens, the boat owner is faced with a decision of whether to buy a powerhead or a completely new engine. According to the petitioner, the expectation of that customer, whether he decides to buy a powerhead or a completely new engine, is that the non-functional outboard engine will be replaced with a functional outboard engine capable of providing propulsion to the boat.

Because they have completely different purchasers, Yamaha argues, powerheads and finished engines of necessity have completely different channels of trade. Powerheads are sold to manufacturers; finished engines are sold to customers buying a boat package. Yamaha maintains that there are consequently different costs associated with each of these channels as a great deal of marketing and sales expenditures are required to sell finished engines to the retailers and dealers which are the ultimate customers. Powerheads have a limited number of customers and require much less in the way of marketing and selling expenses.

The petitioner points out that in its Section A response, Yamaha stated that the channels of distribution for powerheads are identical to those for outboard motors. See Yamaha's Section A questionnaire response dated May 18, 2004, at page A-28. In addition, for sales of powerheads in the U.S. market, Yamaha stated that there is only one channel of distribution for powerheads—dealer distribution. See id. at page A-29. Therefore, the petitioner concludes that there is ample evidence on the record that powerheads and outboard engines are sold through the same channels of trade in both the U.S. and home markets.

With respect to powerheads, Yamaha states that when there is only one customer, such as the petitioner, it is not necessary to incur excessive selling and marketing expenses. Finished motors, on the other hand, require a great deal of additional expenses to market and advertise because there is an extremely large customer base. Yamaha explains that various forms of print and television advertising are necessary to advertise the finished outboard engine and boat package, whereas there is virtually no advertising necessary to sell powerheads to outboard engine manufactures.

The petitioner contends that while there is essentially no advertising of powerheads alone, the advertising for powerhead sales is subsumed within the advertising for the outboard engine. If a company's advertising for completed engines persuades a customer to purchase its brand of outboard motor, it creates a captive market for its powerheads in that the customer must come back to the manufacturer to purchase a replacement powerhead should the engine fail. This subtle difference in advertising, the petitioner maintains, is not sufficient to outweigh the significant overlap among the other four diversified product criteria.

We analyzed this issue based on the criteria set forth by the CIT in Diversified Products.

The powerhead, which provides the motive force to an outboard engine, is a major component of the finished product, and thus shares its primary physical characteristics. Additionally, in deciding whether physical differences in merchandise rise to the level of a class or kind distinction, the Department looks for a clear dividing line between product groups, not merely the presence or absence of physical differences. 17 The scope of this investigation defines the minimum components which make up a powerhead—cylinder block, pistons, connecting rods and the crankshaft. It does not, however, define a limit for the maximum number of additional parts which can be added to the powerhead before it ceases to be properly categorized as a powerhead and becomes an outboard engine. The petition lists other components which may be attached to the four basic elements of a powerhead, such as a starter; alternator; flywheel ignition system; flywheel; stator or ECU (programmable); carburetors; electrical harness; electrical plate assembly and electrical harness; oil pump; throttle linkages; battery cables and connections; and spark plugs. 18 Presumably, other components could be added to a powerhead to the point where it might be more properly classified as an outboard engine. Consequently, we find that a clear dividing line between powerheads and completed outboard engines does not exist. For these reasons, we preliminarily determine that the differences in physical characteristics between powerheads and outboard engines are not significant.

We note that in developing the model matching criteria to be used in this investigation, all parties agree that products should be classified as either powerheads or complete engines. Yamaha's classification of its products into those categories has not been contested. Nevertheless, this cannot be construed to mean that a clear dividing line exists for all manufacturers in all situations.

Completed outboard engines are unquestionably used to power boats. Powerheads are fitted into outboard engines either by engine manufacturers making new engines or by engine repair facilities using the powerhead as a replacement part. Although the powerhead cannot be used by itself to power a boat, both the engine manufacturers and engine repair facilities expect that, after installation, the powerhead will be capable of powering the boat. The finished engine gets its propulsion from the powerhead.

In contrast to Hot-Rolled Steel from Brazil, where the Department found that the semi-finished products, hot-rolled bars and rods, “have numerous ultimate uses, including machining, forging, and hot- and cold-forming,” and that “consumers of hot-rolled bars and rods expect a product which meets relatively exacting tolerances, while consumers of semifinished products do not require such exacting specifications,'' 19 we find that the powerheads in this case have only one use—to be incorporated into a completed outboard engine and used to propel a boat. Further, the standards to which the powerhead is produced determine into which specific type of engine it will be incorporated. These standards also determine what level of power the consumer, be it an engine manufacturer, a boat-builder, or a boat owner, can expect from that engine.

Powerheads are sold primarily to engine manufacturers, a different customer category than the boat manufacturers, dealers and distributors which purchase completed engines. When powerheads are sold as spare or replacement parts, they also are sold to boat manufacturers, dealers, and distributors. With regard to the petitioner's cites to Yamaha's response, we note that in both the U.S. and home market, Yamaha was referring to its sales of powerheads as spare and replacement parts. The majority of Yamaha's sales of powerheads are going to engine manufacturers. There is no evidence on the record that this is not typical for the industry. Therefore, it appears that the majority of powerhead sales are made via a different channel of trade from that of completed outboard engines.

Both parties agree that powerheads are not advertised directly. The advertising which does occur in the industry is for the completed engine and is often aimed at the boat owner. Yamaha has indicated that some of the advertising is for the “boat package.”  20 This would indicate that the completed engine, a component of the boat package, benefits from the advertising for the whole package. Powerheads can be assumed to receive at least some benefit from the advertising done for the completed engine, to the extent the customers are convinced that the features the powerhead contributes to the final engine are desirable. However, we note that if a powerhead goes into an engine which is subsequently marketed under another manufacturer's name, this advertising benefit is largely eliminated. Therefore, there appears to be little similarity in the manner of advertising between powerheads and completed engines.

As an initial matter, we disagree with Yamaha that it is the Department's practice to treat subassemblies of finished products as a separate class or kind. The Department has a large number of cases where a petition was filed on products and their major components, in which they were treated as a single class or kind. 21 Further, we find Yamaha's reference to Color Picture Tubes to be off-point, as the order in question did not cover completed color televisions.

In analyzing the Diversified Products criteria, we find that the similarities in physical characteristics, end uses, and the expectations of the ultimate purchaser outweigh differences in channels of trade and advertising. The powerhead is a defining characteristic of the completed engine, and there is no clear dividing line between the two. We note that because we have determined that powerheads and completed outboard engines constitute a single class or kind of merchandise, Yamaha's comment regarding removing powerheads from the scope becomes moot.

Yamaha reported sales of certain powerhead models to Mercury's affiliate in Japan, Mercury Marine Japan, as U.S. sales. Yamaha assists Mercury in shipping these models to the United States. Therefore, Yamaha has knowledge that the United States is the final destination of the merchandise. However, for sales of other models of engines and powerheads to Mercury Marine Japan, Yamaha states that it relinquishes the title to the product when it arrives at the Japanese port. Yamaha, therefore, asserts that it has no knowledge of the final destination of this merchandise and classified these sales as home market sales. As support for this classification, Yamaha points to Mercury's plants in Belgium and Mexico as evidence that the merchandise may go elsewhere than the United States for further processing. Although Yamaha is not aware of any Mercury plants in Japan that could process powerheads into outboard engines, it does claim that Mercury sells finished engines containing the powerheads in question in Japan. Furthermore, Yamaha notes that Mercury has sales outside of the United States of engines built from the powerhead models in question. 22

In response to Yamaha's classification of these sales as home market sales, Mercury submitted an affidavit  23 stating that all of the powerheads and engines purchased by Mercury Marine Japan from Yamaha had to undergo further processing at Mercury's Wisconsin plant. Mercury claims that all of the engines and powerheads sold by Yamaha to Mercury were exported directly from Japan to the United States for processing at this plant. The affidavit also states that Mercury's plant in Mexico only produces components for outboard engines, and that its plant in Belgium has never received powerheads or engines directly from Yamaha. The submission attached to the affidavit states that neither plant manufactures or further processes the subject merchandise. The affidavit also claims that Yamaha officials have toured these two plants and are aware of the plants' functions.

Although Yamaha acknowledges that one of its officials toured the Mercury plant in Belgium, Yamaha claims to have no specific knowledge of Mercury's manufacturing and shipping process at this plant. 24 Yamaha also notes that Mercury sells completed engine units containing the powerhead models in question outside of the United States. Furthermore, Yamaha suggests that Mercury could import the powerheads into the United States under a temporary importation bond or send them to a bonded warehouse or foreign trade zone. 25 Mercury could then further manufacture the powerheads and re-export them to a third country. Under these circumstances, Yamaha argues, the powerheads would not be entering the United States for customs purposes.

The Department has interpreted the phrase “for exportation to the United States” in section 772(b) of the statute to mean that the reseller or manufacturer from whom merchandise was purchased knew or should have known at time of sale that merchandise was being exported to the United States. See LG Semicon v. United States, 23 CIT 1074 (December 30, 1999). Based on evidence placed on the record, we preliminarily determine that Yamaha knew or should have known that the powerheads it sold to Mercury were being exported directly to the United States. These sales should, therefore, be classified as U.S. sales.

Bombardier placed the U.S. Securities and Exchange Commission's Form 10-K report for Brunswick Corporation, Mercury's parent company, on the record of this case. 26 The document states, “Mercury Marine also manufactures engine component parts at plants in Florida and Mexico, and has a facility in Belgium that customizes engines for sale into Europe.” Furthermore, Mercury's Web site describes the Mexican plant's function as the “manufacture of wire harnesses, remote controls for Quiksilver, miscellaneous electrical assemblies for engines and spare parts, and machining operation for the outboard business unit.”  27 This publicly available information, combined with Yamaha's tours of these plants, indicates Yamaha knew or should have known that the powerheads it sold to Mercury Marine Japan were to be exported to the United States, the only location where Mercury could process the powerheads into completed outboard engines. Information placed on the record by Yamaha does not support its contention that it had no specific knowledge of Mercury's manufacturing process at the plant in Belgium. 28

Yamaha's argument that Mercury had sales outside of the United States of engines that are built from the powerhead models in question does not change our analysis that Yamaha knew or should have known the destination of the powerheads. The first sale of the powerheads is from Yamaha to Mercury. We have based our analysis on this sale. The sale of complete engines from Mercury to the ultimate purchasers occurs after the powerheads have undergone the requisite further manufacturing at Mercury's Wisconsin plant. Because the powerheads must go directly to the Wisconsin plant after Yamaha sells them to Mercury, the sale of the complete engine by Mercury to the ultimate purchaser did not affect our analysis. With regard to Yamaha's argument that Mercury may import the powerheads under a temporary import bond or to a bonded warehouse or foreign trade zone, we note that the duty rate for powerheads during the period of investigation was zero. Therefore, Mercury would have had little reason to import the powerheads under a temporary import bond or to a bonded warehouse or foreign trade zone.

For these reasons, we preliminarily determine that Yamaha knew or should have known that these sales were to be exported to the United States. As a result, we have moved all of Yamaha's sales of powerheads to Mercury from its home market database to its U.S. database.

For outboard engines sold by Yamaha to Mercury Marine Japan, however, there is no compelling reason to believe Yamaha knew or should have known that these engines were destined for the United States. Yamaha acknowledges that this merchandise is packed for export. This does not, however, indicate that all of these sales were exported to the United States. Although Mercury indicated that all of these engines were exported to the Wisconsin plant for further processing, it is reasonable to believe that a finished engine could be sold directly in Japan or to a third country. Without evidence that Yamaha knew or should have known these exports were destined for the United States, we preliminarily determine that these sales should be excluded from our analysis.

To determine whether sales of outboard engines were made in the United States at LTFV, we compared the export price (EP) and the constructed export price (CEP) to the normal value (NV), as described in the Export Price and Constructed Export Price and Normal Value sections of this notice. In accordance with section 777A(d)(1)(A)(i) of the Act, we calculated weighted-average EPs and CEPs. We compared these to weighted-average home market prices in Japan.

The date of sale on which we based our comparisons depended on the market. For all of Yamaha's home market sales, Yamaha Motor Marketing Japan Co., Ltd. (YMMJ) issues monthly sales invoices to its customers. Yamaha reported the date of shipment as either before or equal to the invoice date. In keeping with Department practice, we used the date of shipment as the date of sale for all home market sales. 29 In the U.S. market, we used the invoice date as the date of sale for the majority of transactions. However, some U.S. sales have a shipment date that precedes the invoice date. For these sales, we determined that date of shipment is the most appropriate date of sale. For sales of powerheads to Mercury, we found that the shipment date was the appropriate date of sale.

For the price to the United States, we used, as appropriate, EP or CEP, as defined in sections 772(a) and 772(b) of the Act, respectively. Section 772(a) of the Act defines EP as the price at which the subject merchandise is first sold before the date of importation by the producer or exporter outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection 772(c) of the Act.

Section 772(b) of the Act defines CEP as the price at which the subject merchandise is first sold in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter, as adjusted under subsections 772(c) and (d) of the Act.

Certain sales by Yamaha are properly classified as EP sales because they were made outside the United States by the exporter or producer to an unaffiliated customer in the United States prior to the date of importation. The remainder of Yamaha's sales are properly classified as CEP sales because they were made for the account of Yamaha, by Yamaha's U.S. affiliate, Yamaha Motor Corporation, USA, to unaffiliated purchasers in the United States.

In accordance with section 772(c)(2) of the Act, for both EP and CEP sales, we made deductions from the starting price for movement expenses, discounts, billing adjustments, and rebates, where appropriate.

After reviewing the terms of delivery for EP sales to Mercury, we deducted foreign inland freight from the gross price, where appropriate. For EP sales to Puerto Rico, the deductions for movement expenses depended on the circumstances of the transaction. For direct sales to Puerto Rico, we deducted only foreign inland freight and foreign brokerage, handling, and port charges. For all other sales to Puerto Rico, we deducted foreign inland freight; foreign brokerage, handling, and port charges; international freight and insurance; U.S. brokerage, handling, and port charges; U.S. warehousing; and U.S. inland freight. For CEP sales, movement expenses included foreign inland freight and insurance; foreign warehousing; foreign brokerage, handling, and port charges; international freight and insurance; U.S. inland freight and insurance; U.S. warehousing; and U.S. brokerage, handling, and port charges.

Section 772(d)(1) of the Act provides for additional adjustments to calculate CEP. Accordingly, where appropriate, we deducted direct selling expenses and indirect selling expenses related to commercial activity in the United States. Pursuant to section 772(d)(3) of the Act, where applicable, we made an adjustment for CEP profit.

In addition to these adjustments, we recalculated credit expense for sales that had no reported pay dates. For all such sales, we used the date of this preliminary determination as date of payment for the merchandise. See the Memorandum from James Kemp and Shane Subler, International Trade Compliance Analysts, to the File, Re: Analysis Memorandum for Yamaha Motor Company, Ltd., Yamaha Marine Company, Ltd., and Yamaha Motor Corporation, USA, dated August 5, 2004 (Analysis Memorandum).

Section 773(a)(1) of the Act directs the Department to calculate NV based on the price at which the foreign like product is sold in the home market, provided that the merchandise is sold in sufficient quantities (or value, if quantity is inappropriate), and that there is no particular market situation that prevents a proper comparison with the EP or CEP. Under the statute, the Department will normally consider quantity (or value) insufficient if it is less than five percent of the aggregate quantity (or value) of sales of the subject merchandise to the United States. We found that Yamaha had a viable home market for outboard engines. As such, Yamaha submitted home market sales data for the calculation of NV.

In deriving NV, we made adjustments as detailed in the following Calculation of Normal Value Based on Home Market Prices section.

Based on allegations contained in the petition, and in accordance with section 773(b)(2)(A)(i) of the Act, we found reasonable grounds to believe or suspect that outboard engine sales were made in Japan at prices below the cost of production (COP). See Initiation Notice, 69 FR at 5318. As a result, the Department has conducted an investigation to determine whether Yamaha made home market sales at prices below their respective COPs during the POI within the meaning of section 773(b) of the Act. We conducted the COP analysis described below.

In accordance with section 773(b)(3) of the Act, we calculated a weighted-average COP based on the sum of the cost of materials and fabrication for the foreign like product, plus amounts for the home market G&A expenses, including interest expenses, and packing expenses. We relied on the COP data submitted by Yamaha in its cost questionnaire responses.

We compared the weighted-average COP for Yamaha to its home-market sales prices of the foreign like product, as required under section 773(b) of the Act, to determine whether these sales had been made at prices below the COP within an extended period of time ( i.e. , a period of one year) in substantial quantities and whether such prices were sufficient to permit the recovery of all costs within a reasonable period of time.

On a model-specific basis, we compared the revised COP to the home market prices, less any applicable movement charges, discounts, rebates, and direct and indirect selling expenses.

We disregarded below-cost sales where (1) 20 percent or more of Yamaha's sales of a given product during the POI were made at prices below the COP, and thus such sales were made within an extended period of time in substantial quantities in accordance with sections 773(b)(2)(B) and (C) of the Act, and (2) based on comparisons of price to weighted-average COPs for the POI, we determined that the below-cost sales of the product were at prices which would not permit recovery of all costs within a reasonable time period, in accordance with section 773(b)(2)(D) of the Act. We found that Yamaha made sales below cost and we disregarded such sales where appropriate.

We determined NV for Yamaha as follows. We made adjustments for any differences in packing and deducted home market movement expenses, rebates, and discounts pursuant to sections 773(a)(6)(A) and 773(a)(6)(B)(ii) of the Act. In addition, where applicable in comparison to EP transactions, we made adjustments for differences in circumstances of sale (COS) pursuant to section 773(a)(6)(C)(iii) of the Act. We made COS adjustments for Yamaha's EP transactions by deducting direct selling expenses incurred for home market sales ( e.g. , credit expense and warranty expenses) and adding U.S. direct selling expenses ( e.g. , credit expenses).

In addition to these adjustments, we disregarded certain sales in the home market database because the merchandise was produced in France. See Analysis Memorandum.

Section 773(a)(4) of the Act provides that, where NV cannot be based on comparison-market sales, NV may be based on CV. Accordingly, for those models of outboard engines for which we could not determine the NV based on comparison-market sales, either because there were no useable sales of a comparable product or all sales of the comparable products failed the COP test, we based NV on CV.

Section 773(e) of the Act provides that the CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise, plus amounts for selling, general and administrative (SG&A) expenses, profit, and U.S. packing costs. We calculated the cost of materials and fabrication based on the methodology described in the Cost of Production Analysis section, above. We based SG&A and profit on the actual amounts incurred and realized by Yamaha in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the comparison market, in accordance with section 773(e)(2)(A) of the Act. We used U.S. packing costs as described in the Export Price and Constructed Export Price section, above.

We made adjustments to CV for differences in COS in accordance with section 773(a)(8) of the Act and 19 CFR 351.410. For comparisons to EP, we made COS adjustments by deducting direct selling expenses incurred on home-market sales from, and adding U.S. direct selling expenses to, CV. For comparisons to CEP, we made COS adjustments by deducting from CV direct selling expenses incurred on home-market sales.

In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade as the EP transaction. The NV level of trade is that of the starting-price sales in the comparison market. For EP sales, the U.S. level of trade is also the level of the starting-price sale, which is usually from exporter to importer.

To determine whether comparison market sales are at a different level of trade than EP transactions, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a different level of trade and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the level of trade of the export transaction, we make a level-of-trade adjustment under section 773(a)(7)(A) of the Act.

In implementing these principles in this investigation, we obtained information from Yamaha about the marketing stages involved in the reported U.S. and home market sales, including a description of the selling activities performed by the respondent for each channel of distribution. In identifying levels of trade for EP and home market sales, we considered the selling functions reflected in the starting price before any adjustments.

In conducting our level-of-trade analysis for Yamaha, we examined the specific types of customers, the channels of distribution, and the selling practices of the respondent. Generally, if the reported levels of trade are the same, the functions and activities of the seller should be similar. Conversely, if a party reports levels of trade that are different for different categories of sales, the functions and activities may be dissimilar. We found the following.

Yamaha reported three channels of distribution in the home market: (1) Sales to distributors (HM2); (2) sales to dealers (HM3); and (3) sales to Mercury. For purposes of the preliminary determination, we disregarded the sales made to Mercury and did not consider such sales in our level of trade analysis. See Yamaha's Sales to Mercury above.

To determine whether HM2 and HM3 constitute separate levels of trade in the home market, we examined the marketing process and selling functions to these two types of customers. We find that sales made to dealers are at a more remote marketing stage than that for sales to distributors. We also find that sales to dealers require more intensive selling activities. Based on this examination, we preliminarily determine that Yamaha sold merchandise at two levels of trade in the home market during the POI. One level of trade is for sales made by Yamaha to distributors (HM2), and the second level of trade is for sales made by Yamaha to dealers (HM3). For a more detailed discussion of Yamaha's levels of trade, see Analysis Memorandum.

In the U.S. market, Yamaha reported two EP channels of distribution: (1) Direct sales by Yamaha to Mercury (US1) and (2) direct sales to a distributor in Puerto Rico (US2). To determine whether separate levels of trade exist for EP sales to the U.S. market, we examined the selling functions, the chain of distribution, and the customer categories reported in the United States.

For Yamaha's sales to Mercury, the questionnaire response indicates that the respondent conducted invoice/order processing for the transactions and in some instances made freight arrangements. Nevertheless, we concluded that there were few selling activities undertaken to support these sales. Further, comparing Yamaha's sales to Mercury to Yamaha's home market sales, we find that there is no level of trade in the home market that corresponds to Yamaha's sales to Mercury. Therefore, for Yamaha's EP sales to Mercury (US1), we first attempted to match to the closest home market level of trade (HM2).

For Yamaha's EP sales to the distributor in Puerto Rico, we found that the number and degree of selling functions closely correspond to Yamaha's sales to distributors in the home market. Thus, we determined that these two channels of distribution are at the same level of trade. For a more detailed discussion of the selling functions corresponding to levels of trade for sales to the distributor in Puerto Rico, see Analysis Memorandum. To the extent possible, we compared Yamaha's EP sales to Puerto Rico to home market sales at the same level of trade, HM2.

When we were unable to find sales of the foreign like product in the home market at the same level of trade as the U.S. sales, we examined whether a level-of-trade adjustment was appropriate. When we compare U.S. sales to home market sales at a different level of trade, we make a level-of-trade adjustment if the difference in levels of trade affects price comparability. We determine any effect on price comparability by examining sales at different levels of trade in a single market, the home market. Any price effect must be manifested in a pattern of consistent price differences between home market sales used for comparison and sales at the equivalent level of trade of the export transaction. To quantify the price differences, we calculate the difference in the average of the net prices of the same models sold at different levels of trade. Net prices are used because any difference will be due to differences in level of trade rather than other factors. We use the average difference in net prices to adjust NV when NV is based on a level of trade different from that of the export sale. If there is no pattern of consistent price differences, the difference in levels of trade does not have a price effect and, therefore, no adjustment is necessary.

We found that there were consistent price differences between sales to HM2 and HM3. Therefore, we made a level-of-trade adjustment when we were forced to compare Yamaha's EP sales to Puerto Rico to Yamaha's sales at HM3. However, for Yamaha's U.S. sales to Mercury, there was no comparable level of trade in the home market. Therefore, we were not able to make a level of trade adjustment.

Regarding its CEP sales in the United States, Yamaha identified three channels of distribution, claiming that the three constitute a single level of trade: (1) Sales by YMUS to OEM boat builders; (2) sales by YMUS to dealers and; (3) sales by G3 to dealers. For CEP sales, we examined the market processes and selling activities after deducting the U.S. selling expenses and associated profit. As a result, there are very few selling activities associated with Yamaha's CEP sales. Therefore, we preliminarily find that the CEP level of trade is not comparable to either level of trade in the home market.

Being unable to quantify a level of trade adjustment for CEP sales, we matched, where possible, to weighted-average home market sales at the closest home market level of trade (HM2) and granted a CEP offset pursuant to section 773(a)(7)(B) of the Act. Where we were unable to find a match at the closest level of trade, we matched to HM3 and granted a CEP offset.

We made currency conversions into U.S. dollars in accordance with section 773A of the Act based on exchange rates in effect on the dates of the U.S. sale, as obtained from the Federal Reserve Bank (the Department's preferred source for exchange rates).

In accordance with section 782(i) of the Act, we intend to verify all information relied upon in making our final determination for Yamaha.

In accordance with section 733(d)(2) of the Act, we are directing CBP to suspend liquidation of all entries of outboard engines from Japan that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register . We are also instructing CBP to require a cash deposit or the posting of a bond equal to the weighted-average dumping margin as indicated in the chart below. These instructions suspending liquidation will remain in effect until further notice.

The weighted-average dumping margins are provided below:

The Department will disclose calculations performed in accordance with 19 CFR 351.224(b).

In accordance with section 733(f) of the Act, we have notified the ITC of the Department's preliminary affirmative determination. If the final determination in this proceeding is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether imports of outboard engines from Japan are materially injuring, or threaten material injury to, the U.S. industry.

Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs on the later of 50 days after the date of publication of this notice or one week after the issuance of the verification reports. See 19 CFR 351.309(c)(1)(i). Rebuttal briefs, the content of which is limited to the issues raised in the case briefs, must be filed within five days after the deadline for the submission of case briefs. See 19 CFR 351.309(d). 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. Further, we request that parties submitting briefs and rebuttal briefs provide the Department with a copy of the public version of such briefs on diskette.

In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. If a request for a hearing is made, we will tentatively hold the hearing two days after the deadline for submission of rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, at a time and in a room to be determined. Parties should confirm by telephone the date, time, and location of the hearing 48 hours before the scheduled date.

Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the date of publication of this notice. Requests should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. At the hearing, oral presentations will be limited to issues raised in the briefs. See 19 CFR 351.310(c). The Department will make its final determination no later than 135 days after the date of publication of this preliminary determination.

This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act.

Background

On July 2, 2003, the Department published in the Federal Register a notice of “Opportunity to Request Administrative Review” of the antidumping duty order on PET film from India. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review , (68 FR 39511) (July 2, 2003); see also Notice of Amended Final Antidumping Duty Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Polyethylene Terephthalate Film, Sheet, and Strip from India , 67 FR 44175 (July 1, 2002) ( Amended Final Determination and Order ). On July 31, 2003, Garware Polyester Ltd., and Global PET films, Inc. (collectively, Garware), requested an administrative review of Garware. Garware withdrew its request for review on August 21, 2003. Additionally, on July 31, 2003, Dupont Teijin Films, Mitsubishi Polyester Film Of America, Toray Plastics (America), Inc., and SKC America, Inc., (collectively, the petitioners), requested an administrative review of Polyplex Corporation Ltd. (Polyplex). Finally, on July 31, 2003, Jindal Polyester Ltd. (Jindal) and Valencia Specialty Films (Valencia), a U.S. importer, requested an administrative review of Jindal.

The Department initiated an administrative review of Jindal and Garware on August 19, 2003, and September 24, 2003, respectively. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part , 68 FR 50750 (August 22, 2003), and Initiation of Antidumping and Countervailing Duty Administrative Reviews, Request for Revocation in Part and Deferral of Administrative Review , 68 FR 56262 (September 30, 2003) (Garware was inadvertently not named in the August 19, 2003, initiation notice). The Department did not initiate an administrative review of Polyplex because this company was excluded from the antidumping duty order on PET film from India. See Letter from Thomas F. Futtner, Acting Office Director, to Lynn M. Fischer, counsel for the petitioners, concerning, Request for Administrative Review of Polyplex, dated August 6, 2003.

On August 1, 2003, the Department issued its antidumping questionnaire to Jindal and Garware. Subsequently, the Department issued supplemental questionnaires to Jindal and Valencia. With the exception of Garware, which did not respond to the Department's questionnaire because it withdrew its request for review on August 21, 2003, the other parties responded to the Department's questionnaires in a timely manner.

On March 22, 2004, the Department extended the time limit for the preliminary results of this review until July 30, 2004. See Certain Polyethylene Terephthalate Film, Sheet and Strip from India: Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Review , 69 FR 17644 (April 5, 2004).

The Department is conducting this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended, (the Act).

For purposes of this order, the products covered are all gauges of raw, pretreated, or primed PET film, whether extruded or coextruded. Excluded are metallized films and other finished films that have had at least one of their surfaces modified by the application of a performance-enhancing resinous or inorganic layer of more than 0.00001 inches thick. Imports of PET film are currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item number 3920.62.00. HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of this order is dispositive.

As provided in section 782(i) of the Act, the Department verified the sales and cost information provided by Jindal, as well as information provided by Valencia, using standard verification procedures. Those procedures include an examination of relevant sales and financial records, and the selection of relevant source documentation as exhibits. Our verification findings are detailed in the following memoranda to the file from Jeffrey Pedersen and Drew Jackson: “Export Price and Home Market Sales Verification Report for Jindal Polyester Limited (EP Verification Report); Constructed Export Price Sales Verification Report for Jindal Polyester Limited (CEP Verification Report); and Cost Verification Report for Jindal Polyester Limited (Cost Verification Report). The public versions of these memoranda are on file in the Central Records Unit (CRU), room B-099 of the Department's main building.

The period of review (POR) is December 21, 2001, through June 30, 2003.

19 CFR 351.213(d)(1) provides that the Department will rescind an administrative review, in whole or in part, if a party that requested a review withdraws its request within 90 days of the date of publication of the notice of initiation of the requested administrative review. Garware withdrew its request to be reviewed by the Department before the 90-day time period expired and no other parties requested an administrative review of Garware. Consequently, the Department is rescinding this administrative review with respect to Garware.

During the POR, Jindal's affiliated U.S. reseller, Jindal America Inc. (Jindal America), ceased operations. Jindal employed Jindal America's president, Mr. Hotmer, to sell Jindal America's remaining inventory of PET film. At the same time, Jindal began selling PET film to Valencia, a company wholly owned by Mr. Hotmer.

Section 771(33)(D) of the Act identifies an employer and its employee as affiliated persons. Jindal employed Mr. Hotmer during a portion of the POR. Although the word “employee” denotes a single person, the Court of International Trade has recognized that “words importing the singular may {not} extend and be applied to several persons or things * * * except where it is necessary to carry out the evident intent of the statute (emphasis added).” See Ferro Union v. United States , 44 F. Supp. 2d 1310, 1325 (CIT, March 23, 1999) citing First Nat'l Bank in St. Louis v. Missouri , 263 U.S. 640, 657 44 S. Ct. 213, 68 L. Ed. 486 (1924). Mr. Hotmer is the sole owner of, and performed the principal selling functions for Valencia, a small company that employed no more than three people during the POR. Thus, when Jindal engaged in business dealings with Valencia while it employed Mr. Hotmer, it was essentially dealing with its employee. The intent of the statute was to recognize such relationships. By treating Mr. Hotmer and Valencia as one for purposes of our affiliation analysis, we give effect to this intent. Therefore, the Department has preliminarily determined that Mr. Hotmer and Valencia were affiliated with Jindal during the portion of the POR that Jindal employed Mr. Hotmer. For a complete discussion of this issue, see the memorandum from Holly A. Kuga, Senior Director, Office IV, to Jeffrey A. May, Deputy Assistant Secretary, Group I, concerning, Affiliation and Use of Adverse Facts Available which is dated concurrently with this notice (Affiliation/AFA memorandum).

The Department's antidumping questionnaire requires respondents to identify parties with whom they are affiliated, or potentially affiliated (see the definition of affiliated persons in Appendix I of the antidumping questionnaire which restates the criteria listed in section 773(33) of the Act). Specifically, section A of the Department's antidumping questionnaire requests respondents to describe all of their relationships with affiliated persons and any relationship with a person where the respondent is unsure whether the relationship may result in the person being considered an affiliate. Additionally, the antidumping questionnaire requests information regarding sales of subject merchandise made by parties in the United States that are affiliated with the respondent ( i.e. , constructed export price (CEP) sales, see the definition of CEP sales in Appendix I of the antidumping questionnaire). Despite the definitions and instructions contained in the Department's questionnaire, in its questionnaire response, Jindal did not identify Valencia as an affiliate or a potential affiliate, nor did it report Valencia's sales of Jindal's PET film during the time that Jindal employed Mr. Hotmer. After examining Jindal's questionnaire responses and comments filed by the petitioners, the Department determined that additional information was needed regarding Jindal America, Mr. Hotmer, and one of Jindal's customers, Valencia. Subsequently, on November 7, 2003, December 19, 2003, and April 7, 2004, the Department issued supplemental questionnaires to Jindal requesting information regarding Jindal's relationship with Jindal America, Mr. Hotmer, and Valencia. Jindal's responses to these supplemental questionnaires contained conflicting and inaccurate information that was not clarified until verification. Thus, the Department did not have the information needed to make its determination regarding Jindal's affiliation with Valencia until late in this administrative review, and the record lacks sales information regarding Valencia's sales of Jindal's PET film during the period that Jindal employed Mr. Hotmer.

Section 776(a)(1) of the Act provides that if the necessary information is not on the record the Department shall use, subject to section 782(d) of the Act, facts otherwise available in reaching the applicable determination. Section 782(d) of the Act requires the Department to inform a party that submits a deficient response of the nature of the deficiency and to give the party an opportunity to correct the deficiency; however, the Act does permit the Department to eventually cease issuing supplemental questionnaires if a respondent's responses continue to be inadequate and deficient. Jindal's questionnaire responses continue to be deficient because the record lacks Valencia's sales information. Therefore, pursuant to section 776(a) of the act, we are resorting to the use of partial facts available in determining Jindal's dumping margin.

In selecting from among the facts otherwise available, section 776(b) of the Act provides that 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 an inference that is adverse to the interests of the party. The Act provides that an adverse inference may include reliance on information derived from the petition, a final determination in an antidumping investigation or review, or any other information placed on the record. See sections 776(b)(1), (2), (3), and (4) of the Act.

Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act (URAA), H. Rep. No. 103-316 at 870 (1994); Borden, Inc. v. United States , 4 F. Supp. 2d 1221 (CIT 1998); Mannesmannrohren-Werke AG v. United States , 77 F. Supp. 2d 1302 (CIT 1999). The Court of Appeals for the Federal Circuit (CAFC), in Nippon Steel Corporation v. United States , 337 F. 3d 1373, 1380 (Fed. Cir. 2003), provided an explanation of the “failure to act to the best of its ability” standard, holding that the Department need not show intentional conduct existed on the part of the respondent, but merely that a “failure to cooperate to the best of a respondent's ability” existed, i.e. , information was not provided “under circumstances in which it is reasonable to conclude that less than full cooperation has been shown.” Id.

During the course of the instant administrative review, Jindal initially failed to identify its relationship with Valencia, even though the Department's questionnaire requested such information, reported conflicting information regarding the relationship, and reported information regarding the relationship that was not clarified until verification. Thus, Jindal did not cooperate by acting to the best of its ability to comply with the Department's requests for information regarding its relationship with Valencia. Therefore, the Department has preliminarily determined that in selecting from among the facts available, an adverse inference is warranted. As partial adverse facts available, we assigned the highest dumping margin calculated in any segment of this proceeding to Jindal's sales to Valencia during the portion of the POR that Jindal employed Mr. Hotmer. For a complete discussion of our use of adverse facts available, see the Affiliation/AFA memorandum.

Section 776(c) of the Act requires that the Department, to the extent practicable, corroborate secondary information from independent sources that are reasonably at its disposal. Secondary information is defined as “{i}nformation 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 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, 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), to corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information.

The AFA rate used in these preliminary results constitutes secondary information. However, unlike other types of secondary information, such as input costs or selling expenses, there are no independent sources of information from which the Department can derive calculated dumping margins; the only source for dumping margins is administrative determinations. The preliminary AFA rate was calculated in the investigative phase of this proceeding using verified information. Moreover, this rate reflects recent commercial activity of an Indian company that sold PET film to the United States. Therefore, we consider this rate to be both reliable and relevant.

At verification, Jindal America was unable to substantiate the per-unit inland freight expense reported for its U.S. sales of subject merchandise. See CEP Verification Report at 19. Section 776(a)(D) of the Act provides that the Department shall use the facts otherwise available in reaching the applicable determination if the information provided cannot be verified. Thus, for all CEP sales, we have based the per-unit U.S. inland freight expense on facts available. Although Jindal America attempted to support the reported U.S. inland freight expenses with available documentation, it was unable to definitively link invoices for U.S. inland freight to specific U.S. sales. However, there is no indication that Jindal or Jindal America failed to act to the best of their abilities in attempting to supply the documentation required to verify the per-unit U.S. inland freight expenses for the sales at issue. Therefore, for these preliminary results, we have not made an inference that is adverse to Jindal's interests in selecting from among the facts otherwise available. As partial, non-adverse facts available, the Department replaced the per-unit U.S. inland freight expense reported for CEP sales with a weighted-average, per-unit U.S. inland freight expense. The Department calculated this weighted-average freight expense by dividing Jindal America's total freight expense by the total quantity of PET film sold by Jindal during the POR and delivered to customers. For additional information on this partial facts available adjustment, see the Department's Calculation Memorandum, issued concurrently with this notice.

To determine whether the respondent's sales of PET film to the United States were made at less than normal value (NV), we compared the export price (EP) and CEP, as appropriate, to the NV, as described in the “Export Price,” “Constructed Export Price” and “Normal Value” sections of this notice, below. We first attempted to compare contemporaneous U.S. and comparison-market sales of products that are identical with respect to the following characteristics, listed in order of importance for matching purposes: grade, thickness, and surface quality. 1 Where we were unable to compare sales of identical merchandise, we compared U.S. sales to comparison-market sales of the most similar merchandise based on the above characteristics. Where there were no appropriate sales of foreign like product to compare to a U.S. sale, we compared the price of the U.S. sale to constructed value (CV).

Except for sales through Jindal America, the Department based U.S. price on EP, as defined in section 772(a) of the Act, because the merchandise was sold, prior to importation, to unaffiliated purchasers in the United States, or to an unaffiliated purchaser for exportation to the United States, and CEP methodology was not otherwise warranted based on the facts on the record. We calculated EP based on the packed, delivered prices charged to unaffiliated customers in the United States or to unaffiliated customers for exportation to the United States. In accordance with section 772(c)(2)(A) of the Act, we made deductions from the starting price, where applicable, for foreign movement expenses (including brokerage and handling and inland freight), international freight, and marine insurance. Where appropriate ( see the “Duty Drawback” section below), we added to the starting price duty drawback received on imported materials, pursuant to section 772(c)(1)(B) of the Act. In accordance with section 772(c)(1)(C) of the Act, where appropriate, we increased U.S. price by the countervailing duty (CVD) rate attributable to the export subsidies found in the CVD investigation of PET film from India (the ongoing first administrative review of the CVD order has not yet been completed).

For Jindal's sales through Jindal America, we based U.S. price on CEP, as defined in section 772(b) of the Act, because the merchandise was sold, after importation, by Jindal's U.S. affiliate, Jindal America, to unaffiliated purchasers in the United States. 2 We calculated CEP based on delivered prices to unaffiliated customers in the United States. We made deductions from the starting price, where appropriate, for foreign and U.S. brokerage and handling, foreign and U.S. inland freight, international freight, marine insurance, U.S. duties, and direct and indirect selling expenses to the extent that they are associated with economic activity in the United States in accordance with sections 772(c)(2)(A) and 772(d)(1)(B) and (D) of the Act. The direct selling expenses include credit expenses. In accordance with section 772(d)(3) of the Act, we made a deduction for CEP profit.

For both EP and CEP, pursuant to section 772(c)(1)(C) of the Act, we increased U.S. price by the amount of the export subsidy found in the countervailing duty investigation of PET film from India. See Notice of Final Affirmative Countervailing Duty Determination: Polyethylene Terephthalate Film, Sheet, and Strip (PET Film) From India , 67 FR 34905 (May 16, 2002). We note that the Department is currently conducting a countervailing duty review of PET film from India, which will be completed before the Department issues the final results of this antidumping duty review. Hence, for the final results of this antidumping duty administrative review, we intend to adjust U.S. price to reflect any export subsidy found in the concurrent countervailing duty review of PET film from India.

Jindal reported that it received duty drawback under both the Advance License program and the Duty Entitlement Passbook Scheme (DEPS). The Advance License program allows Indian companies to import specified materials duty-free if such materials are used to produce a product that is exported by the company. According to information on the record, each advance license limits the quantity of each material that may be imported duty-free. No customs duties are paid on the imported materials; however, there is a contingent liability for the unpaid duties. This contingent liability is extinguished by exporting finished products containing the types of materials covered by the advance license. Under the DEPS program, Indian companies are granted a credit which is equivalent to 14 percent of the free-on-board (FOB) value of their exports. These companies then use this credit to offset the customs duty paid on imported materials used to manufacture exported products.

Before increasing a respondent's reported U.S. sales prices by the amount of duty drawback, pursuant to section 772(c)(1)(B) of the Act, the Department's practice is to examine whether: (1) Import duties and rebates are directly linked to and are dependent upon one another, and (2) the company claiming the adjustment can demonstrate that there are sufficient imports of raw materials to account for the duty drawback received on exports of the manufactured product. See Steel Wire Rope from the Republic of Korea; Final Results of Antidumping Duty Administrative Review , 61 FR 55965, 55968 (October 30, 1996).

With regard to Jindal's experience under the Advance License program, the Department has preliminarily determined that import duties and rebates are directly linked and dependent upon one another and Jindal imported sufficient quantities of raw materials to account for the duty drawback granted. Accordingly, the Department has added an amount for duty drawback to EP and CEP.

With regard to the DEPS program, the Department has preliminarily determined that Jindal failed to demonstrate that import duties and rebates are directly linked and dependent upon one another. The DEPS program does not require a company to link the DEPS credit granted on the exported merchandise to the import duties paid on the types of raw materials used to manufacture the exported product. In fact, at verification, the Department found that Jindal may apply the DEPS credit toward the payment of import duties on any type of material (other than illegal or dangerous materials listed by the GOI) or simply sell the DEPS credit. See the “DEPS” section of the EP Sales Verification Report. While the Department does not require a respondent to link a specific entry of materials on which duties were paid (or which was imported duty-free) to a specific export of finished product on which the rebate is based, it does require the respondent to demonstrate that the imported materials are of the same type used to produce the exported product. Further, the Department will only grant a duty drawback adjustment if the rebated import duty is on materials used to produce subject merchandise. Jindal made no attempt to link the quantity of materials imported under the DEPS program with the quantity of materials consumed in producing exported PET film. See the “DEPS” section of the EP Sales Verification Report. Based on the foregoing, the Department has not increased Jindal's reported U.S. sales prices by the amount of duty drawback granted under the DEPS program.

In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same LOT as the EP or CEP sales. The NV LOT is that of the starting-price sales in the comparison market or, when NV is based on CV, that of the sales from which we derive selling, general, and administrative (SG&A) expenses and profit. For EP sales, the U.S. LOT is also the level of the starting-price sale. For CEP sales, it is the level of the constructed sale from the exporter to the importer. The Department adjusts the CEP, pursuant to section 772(d) of the Act, prior to performing the LOT analysis, as articulated by the Department's regulations at section 351.412. See Micron Technology, Inc. v. United States , 243 F.3rd 1301, 1315 (Fed. Cir. 2001).

To determine whether NV sales are at a different LOT than the EP or CEP sales, we examine stages in the marketing process and selling activities along the chain of distribution between the producer and the unaffiliated customer. If the comparison-market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in the levels between NV and CEP affects price comparability, we adjust NV as provided under section 773(a)(7)(B) of the Act (the CEP offset provision). See Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from South Africa , 62 FR 61731 (November 19, 1997).

In determining whether separate LOTs exist, we obtained information regarding the marketing stages for the reported home market and U.S. sales, including a description of the selling activities performed by Jindal and Jindal America for each channel of distribution. We generally expect that, if claimed LOTs are the same, the selling functions and activities of the seller at each level should be similar. Conversely, if a party claims that LOTs are different for different groups of sales, the selling functions and activities of the seller for each group should be dissimilar. Based on our comparisons of Jindal's direct sales to unaffiliated customers and its sales through Jindal America, we have determined that the U.S. sales are at two different LOTs.

Jindal reported home market sales to two categories of customers through two channels of distribution. However, the record indicates that the sales processes for all home market sales are essentially the same. Therefore, we have preliminarily determined that, during the POR, Jindal sold foreign like product in the home market at one LOT.

The Department then compared the LOT of Jindal's home market sales to the LOT of its direct sales to unaffiliated U.S. customers. Based on this comparison, the Department has determined that Jindal's home market sales were made at the same LOT as its direct sales to unaffiliated U.S. customers. Therefore, the Department has preliminarily determined that no LOT adjustment for Jindal's sales to unaffiliated U.S. customers is warranted.

Additionally, we have preliminarily determined that Jindal's sales to its unaffiliated customers in the home market were not made at an LOT that is more advanced than its sales to its U.S. affiliate, and therefore, a CEP offset adjustment is not warranted. 3 See Memorandum to the file from the Team to the File, concerning, Level of Trade Analysis: Jindal Polyester Limited which is dated concurrently with this notice.

After testing home market viability, whether home market sales to affiliates were at arm's-length prices, and whether comparison-market sales failed the cost test, we calculated NV as noted in the subsections, “Price-to-Price Comparisons” and “Price-to-CV Comparisons,” below.

In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV ( i.e. , whether the aggregate volume of home market sales of the foreign like product is equal to or greater than five percent of the aggregate volume of U.S. sales), we compared the respondent's volume of home market sales of the foreign like product to the volume of its U.S. sales of subject merchandise, in accordance with section 773(a)(1) of the Act. Because the respondent's aggregate volume of home market sales of the foreign like product is greater than five percent of its aggregate volume of U.S. sales of subject merchandise, we determined that the home market is viable for the respondent, and have used the home market as the comparison-market.

The Department may calculate NV based on a sale to an affiliated party only if it is satisfied that the price to the affiliated party is comparable to the prices at which sales are made to parties not affiliated with the producer, i.e. , sales at arm's-length. See section 773(f)(2) of the Act; 19 CFR 351.403(c). Where the home market prices charged to an affiliated customer were, on average, found not to be arm's-length prices, sales to the affiliated customer were excluded from our analysis. Jindal reported one sale of the foreign like product to an affiliated end-user. To test whether this sale was made at an arm's-length price, the Department compared the price of this sale to sales of comparable merchandise to unaffiliated customers, net of all rebates, movement charges, direct selling expenses, and packing. Pursuant to 19 CFR 351.403(c), and in accordance with the Department's practice, when the prices charged to an affiliated party were, on average, between 98 and 102 percent of the prices charged to unaffiliated parties for merchandise comparable to that sold to the affiliated party, we determined that the sales to the affiliated party were at arm's-length prices. See Antidumping Proceedings: Affiliated Party Sales in the Ordinary Course of Trade , 67 FR 69186 (November 15, 2002). We included in our NV calculations all sales to an affiliated party if sales to the affiliate were made at an arm's-length price.

On October 15, 2003, the petitioners alleged that, during the POR, Jindal made home market sales of PET film at prices below the cost of production (COP). After finding that the petitioners' allegation provided reasonable grounds to initiate a COP investigation, the Department, pursuant to section 773(b) of the Act, initiated a COP investigation of Jindal. We conducted the COP analysis as described below.

In accordance with section 773(b)(3) of the Act, we calculated the weighted-average COP, by model, for the POR, based on the sum of materials and fabrication costs, SG&A expenses, and packing costs.

As required under section 773(b) of the Act, we compared the weighted-average COPs to the home market sales prices of the foreign like product, in order to determine whether these sales had been made at prices below the COP within an extended period of time in substantial quantities, and whether such prices were sufficient to permit the recovery of all costs within a reasonable period of time. On a product-specific basis, we compared the COP to home market sales prices, less any applicable movement charges and direct and indirect selling expenses.

Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of Jindal's sales of a given product were made at prices below the COP, we did not disregard any below-cost sales of that product because the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of Jindal's sales of a given product were made at prices below the COP, we determined that such sales were made in substantial quantities within an extended period of time ( i.e. , a period of one year). Further, because we compared prices to POR-average costs, we determined that the below-cost prices would not permit recovery of all costs within a reasonable time period, and thus, we disregarded the below-cost sales in accordance with sections 773(b)(1) and (2) of the Act.

We found that for certain products, Jindal made home market sales at prices below the COP within an extended period of time in substantial quantities. Further, we found that these sales prices did not permit the recovery of costs within a reasonable period of time. Therefore, we excluded these sales from our analysis in accordance with section 773(b)(1) of the Act.

Price-to-Price Comparisons. Where it was appropriate to base NV on prices, we used the prices at which the foreign like product was first sold for consumption in India, in the usual commercial quantities, in the ordinary course of trade, and, to the extent possible, at the same LOT as the comparison EP or CEP sale.

We determined price-based NVs for Jindal as follows: we calculated NV based on packed, delivered and ex-factory prices to home market customers. Where appropriate, we increased the starting price for interest revenue. We made deductions from the starting price for foreign inland freight, where appropriate, pursuant to sections 773(a)(6)(B)(ii) of the Act. Pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(c), we made circumstance-of-sale adjustments to the starting price, where appropriate, for differences in credit and bank expenses.

We deducted home market packing costs from, and added U.S. packing costs to, the starting price, in accordance with sections 773(a)(6)(A) and (B) of the Act. Where appropriate, we made adjustments to NV to account for differences in the physical characteristics of the merchandise sold in the U.S. and home market, in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In accordance with the Department's practice, where all contemporaneous matches to a U.S. sale resulted in difference-in-merchandise adjustments exceeding 20 percent of the cost of manufacturing (COM) the U.S. product, we based NV on CV.

Price-to-CV Comparisons. In accordance with section 773(a)(4) of the Act, we based NV on CV when we were unable to compare the U.S. sale to a home market sale of an identical or similar product. For each unique PET film product sold by the respondent in the United States during the POR, we calculated a weighted-average CV based on the sum of the respondent's materials and fabrication costs, SG&A expenses, including interest expenses, packing costs, and profit. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product, in the ordinary course of trade, for consumption in India. We based selling expenses on weighted-average actual home market direct and indirect selling expenses. In calculating CV, we adjusted the reported costs as described in the COP section above.

Currency Conversion . Pursuant to section 773A(a) of the Act, we converted amounts expressed in foreign currencies into U.S. dollar amounts based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.

As a result of this review, we preliminarily determine that the following weighted-average dumping margin exists for the period December 21, 2001, through June 30, 2003:

We will disclose the calculations used in our analysis to parties to this proceeding within 10 days of publicly announcing the preliminary results of review. See 19 CFR 351.224(b). Any interested party may request a hearing within 30 days of the publication date of this notice. See 19 CFR 351.310(c). If requested, a hearing will be held 44 days after the date of publication of this notice, or the first workday thereafter. Interested parties are invited to comment on the preliminary results. The Department will consider case briefs filed by interested parties within 30 days of the date of publication of this notice. Also, interested parties may file rebuttal briefs, limited to issues raised in the case briefs. The Department will consider rebuttal briefs filed not later than five days after the deadline for filing case briefs. Parties who submit arguments are requested to submit with each argument: (1) A statement of the issue, (2) a brief summary of the argument and (3) a table of authorities. Further, we ask that parties submitting written comments provide the Department with a copy of the public version of any such comments on a diskette. Unless extended, the Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any written comments, within 120 days from the publication date of this notice.

Upon completion of this administrative review, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), when possible, we calculated an importer-specific assessment rate for merchandise subject to this review. Where the importer-specific assessment rate is above de minimis , we will instruct CBP to assess the importer-specific rate uniformly on the entered customs value of all entries of subject merchandise made by the importer during the POR. When it was not possible to calculate an importer-specific assessment rate because the importer was not known, we calculated an exporter-specific ad valorem assessment rate. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of review.

The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of the instant administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed company will be the rate established in the final results (except that if the rate is de minimis, i.e. , less than 0.5 percent, no cash deposit will be required); (2) for previously investigated or reviewed companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the less than fair value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be the “all others” rate of 5.71 percent, which is the “all others” rate established in the LTFV investigation, adjusted for the export subsidy rate in the countervailing duty investigation. See Amended Final Determination and Order . 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)(2) 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 the antidumping duties occurred and the subsequent assessment of double antidumping duties.

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

The AP consists largely of scientists with expertise in marine aquaculture. The AP will be redrafting the Generic Amendment Providing for Regulation of Offshore Marine Aquaculture (Amendment). The draft amendment contains scientific information on the culture of marine fish and on the environmental effects of such aquaculture. The amendment also contains many alternatives that could be used to regulate aquaculture by best management practices (BMP). The Council solicited public comment on the draft amendment in eight scoping hearings. The AP will consider these public recommendations in redrafting the amendment.

The Gulf of Mexico Fishery Management Council is one of eight regional fishery management councils that were established by the Magnuson-Stevens Fishery Conservation and Management Act of 1976. The Gulf of Mexico Fishery Management Council prepares fishery management plans that are designed to manage fishery resources in the U.S. Gulf of Mexico.

See ADDRESSES for copies of the discussion material for this meeting. Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified 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 Council's intent to take final action to address the emergency.

The meeting is open to the public and is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Dawn Aring at the Council (see ADDRESSES ) by August 13, 2004.

National Standard One of the Magnuson-Stevens Act provides management will prevent overfishing while achieving optimum yield from fishery stocks. The guidelines for this standard provide technical guidance on assessing the status of stocks, preventing overfishing and rebuilding overfished stocks. NOAA Fisheries, after scientific review, is preparing to amend the guidelines. The Council's FSAP consists of scientists with expertise on management of fishery stocks and mathematically assessing the status of such stocks. The FSAP will review the revisions proposed by NOAA Fisheries and make their recommendations to the Council on the scientific merit of the proposed changes and/or the need for additional changes.

The Gulf of Mexico Fishery Management Council is one of eight regional fishery management councils that were established by the Magnuson-Stevens Act of 1976. The Gulf of Mexico Fishery Management Council prepares fishery management plans that are designed to manage fishery resources in the U.S. Gulf of Mexico.

See ADDRESSES to obtain copies of the discussion material for this meeting. Although non-emergency issues not contained in the agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified 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 Council's intent to take final action to address the emergency.

The meeting is open to the public and is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Dawn Aring at the Council (see ADDRESSES ) by August 13, 2004.

Title I of the Trade and Development Act of 2000 (TDA 2000) provides for duty- and quota-free treatment for certain textile and apparel articles imported from designated beneficiary sub-Saharan African countries. Section 112(b)(3) of TDA 2000 provides duty- and quota-free treatment for apparel articles wholly assembled in one or more beneficiary sub-Saharan African countries from fabric wholly formed in one or more beneficiary countries from yarn originating in the U.S. or one or more beneficiary countries. This preferential treatment is also available for apparel articles assembled in one or more lesser-developed beneficiary sub-Saharan African countries, regardless of the country of origin of the fabric used to make such articles. TDA 2000 imposed a quantitative limitation on imports eligible for preferential treatment under these two provisions.

The Trade Act of 2002 amended TDA 2000 to extend preferential treatment to apparel assembled in a beneficiary sub-Saharan African country from components knit-to-shape in a beneficiary country from U.S. or beneficiary country yarns and to apparel formed on seamless knitting machines in a beneficiary country from U.S. or beneficiary country yarns, subject to the quantitative limitation. The Trade Act of 2002 also increased the quantitative limitation but provided that this increase would not apply to apparel imported under the special rule for lesser-developed countries. The Trade Act of 2002 provided that the quantitative limitation for the year beginning October 1, 2003 would be an amount not to exceed 4.7931 percent of the aggregate square meter equivalents of all apparel articles imported into the United States in the preceding 12-month period for which data are available. Of this overall amount, apparel imported under the special rule for lesser-developed countries is limited to an amount not to exceed 2.3571 percent of apparel imported into the United States in the preceding 12-month period. For the purpose of the calculation of the 12-month period that began on October 1, 2003 , the most recent 12-month period for which data were available was the 12-month period ending July 31, 2003.

Section 7(b)(2)(B)(ii)(I) of the AGOA Acceleration Act of 2004 extended the expiration of the quantitative limitations. It also amended the percentage to be used in calculating the cap for the twelve-month period that began on October 1, 2003 and extends through September 30, 2004. The new percentage is 4.747. The sub-cap applicable for apparel articles under the special rule for lesser-developed countries remains unchanged for this twelve-month period.

Presidential Proclamation 7350 directed CITA to publish the aggregate quantity of imports allowed during each 12-month period in the Federal Register. Presidential Proclamation 7626, published on November 18, 2002, modified the aggregate quantity of imports allowed during each 12-month period. On September 16, 2003, CITA published the cap for the 12-month period from October 1, 2003 to September 30, 2004.

For the twelve-month period that began on October 1, 2003 and extends through September 30, 2004, the aggregate quantity of imports eligible for preferential treatment under these provisions is revised to 947,368,444 square meters equivalent. Of this amount, 470,411,241 square meters equivalent is available to apparel imported under the special rule for lesser-developed countries. These quantities will be recalculated for each subsequent year. Apparel articles entered in excess of these quantities will be subject to otherwise applicable tariffs.

These quantities are calculated using the aggregate square meter equivalents of all apparel articles imported into the United States, derived from the set of Harmonized System lines listed in the Annex to the World Trade Organization Agreement on Textiles and Clothing (ATC), and the conversion factors for units of measure into square meter equivalents used by the United States in implementing the ATC.

Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The Leader, Regulatory Information Management Group, Office of the Chief Information Officer, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g., new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.

Type of Review: Extension.

Title: Adult Education and Family Literacy Act State Plan (PL 105-220).

Frequency: Annually.

Affected Public: State, Local, or Tribal Gov't, SEAs or LEAs.

Reporting and Recordkeeping Hour Burden:

 Responses: 59.

 Burden Hours: 2,655.

Abstract: It is unlikely that Congress will pass a reauthorization of the Workforce Investment Act (WIA) this year. Therefore, the enclosed Policy Memorandum is designed to advise states about how to continue their adult education program under Section 422 of the General Education Provisions Act (GEPA) [20 U.S.C. 1226 (a)].

Requests for copies of the submission for OMB review; comment request may be accessed from http://edicsweb.ed.gov, by selecting the “Browse Pending Collections” link and by clicking on link number 2555. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center, 9th Floor, Washington, DC 20202-4700. Requests may also be electronically mailed to the Internet address OCIO_RIMG@ed.gov or faxed to 202-245-6621. Please specify the complete title of the information collection when making your request.

Comments regarding burden and/or the collection activity requirements should be directed to Sheila Carey at Sheila.Carey@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

EPA has established a public docket for this ICR under Docket ID number OW-2004-0017, which is available for public viewing at the Water Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Water Docket is (202) 566-2426. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at http://www.epa.gov/edocket . Use EDOCKET to obtain a copy of the draft collection of information, submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the docket ID number identified above.

Any comments related to this ICR should be submitted to EPA within 60 days of this notice. EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EDOCKET as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose public disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EDOCKET. The entire printed comment, including the copyrighted material, will be available in the public docket. Although identified as an item in the official docket, information claimed as CBI, or whose disclosure is otherwise restricted by statute, is not included in the official public docket, and will not be available for public viewing in EDOCKET. For further information about the electronic docket, see EPA's Federal Register notice describing the electronic docket at 67 FR 38102 (May 31, 2002), or go to http://www.epa.gov./edocket .

Affected entities: Entities potentially affected by this action are approximately 770 municipalities with combined sewer systems, which are covered by EPA's Combined Sewer Overflow (CSO) Control Policy.

Title: Combined Sewer Overflow Control Policy (OMB Control No. 2040-0170; EPA ICR No. 1680.03) expiring on October 31, 2004.

Abstract: EPA is proposing to continue its ICR for the Combined Sewer Overflow (CSO) Control Policy. The ICR was approved in April 1994. The first renewal was approved in September 1997; the second in October 2001. This renewal ICR includes the burden associated with documenting implementation of the nine minimum controls identified in the CSO control policy, public notification of CSO events and their impacts, developing and submitting long-term CSO control plans (LTCPs), and post-construction compliance monitoring.

Combined sewer systems (CSSs) serve approximately 770 municipalities, primarily in the Northeast and Great Lakes regions. This number is smaller than that in the former ICR largely because the Agency has better data on the number of municipalities with combined sewer systems nationwide. CSOs occur when these systems overflow and discharge to receiving waters prior to treatment in a publicly owned treatment works (POTW).

The CSO Control Policy, published on April 19, 1994 (59 FR 18688), is a national framework for controlling CSOs through the National Pollutant Discharge Elimination System (NPDES) permitting program. The Policy represents a comprehensive national strategy to ensure that municipalities with CSSs, NPDES permitting authorities, water quality standards authorities, and the public engage in a comprehensive and coordinated planning effort to achieve cost-effective CSO controls that ultimately need appropriate health and environmental objectives, including compliance with water quality standards. In December 2000, the Wet Weather Water Quality Standards Act amended the Clean Water Act by adding Section 402(q). Among other things, Section 402(q)(1) requires that permits, orders, and decrees issued after its date of enactment, shall conform to the EPA's 1994 CSO Control Policy.

Among the provisions in the CSO Policy are the “nine minimum controls” (NMC), which are technology-based actions or measures designed to reduce the magnitude, frequency, and duration of CSOs and their effects on receiving water quality. The CSO Control Policy provided for implementation of the NMC by January 1, 1997.

One of the NMC is public notification of CSO occurrences and impacts. Public notification is of particular concern at beach and recreation areas directly or indirectly affected by CSOs, where public exposure is likely to be significant. That burden continues to be included in this renewal.

The CSO Control Policy also contains a provision for the development of long-term control plans. The policy delineates that permit writers require permittees to develop a long-term plan within two years of the issuance of a NPDES permit or other enforceable mechanism containing such a requirement. The core of the plan is the development and evaluation of long-term control alternatives. One of the elements of the long-term plan is the development of a post-construction compliance monitoring program to be implemented when selected controls are completed. OMB's approval of the initial ICR for the CSO Control Policy recommended that the renewal ICRs include EPA's best estimate of the burden associated with a reasonable and targeted compliance monitoring program.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9.

The EPA would like to solicit comments to:

(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;

(ii) Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(iii) Enhance the quality, utility, and clarity of the information to be collected; and

(iv) 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, e.g. , permitting electronic submission of responses.

Burden Statement: Based on the information collection requirements in the existing ICR, the estimated burden reflected in this ICR is 1,754,877 hours and a cost of $61,964,707.

Of this total, the portion for municipalities with combined sewer systems is 1,699,696 hours at a cost of $60,016,265 including start-up costs of $182,125 for the third party notification under the Nine Minimum Controls (NMC) in the CSO Policy. The estimated burden on each of 585 municipalities for DMR reporting and recordkeeping is 417 hours and $14,724. The estimated burden on each of 490 municipalities for NMC reporting and long-term control plan development and submission is 3,011 hours and $106,313 and for third-party notification, 27 hours and $940.

The estimated burden for Federal and State governments is 4,894 hours and $172,807 and 55,181 hours and $1,948,441, respectively. This includes the burden associated with reviewing the DMRs, the NMC documentations, and the long-term control plans submitted by the respondents, and reissuing NPDES permits or issuing other enforceable mechanisms to municipalities with CSSs to implement the CSO Control Policy. The annual average burden for Federal and State review of DMRs, NMC documentations, and long-term control plans is 1,325 hours and $46,774 and 15,807 hours and $532,722, respectively. The annual average burden associated with reissuing NPDES permits or issuing other enforceable mechanisms to CSO municipalities is 307 hours and $10,828 for the Federal government and 3,307 hours and $116,758 for State governments.

The estimated burden on the States to report summary information to EPA for oversight of the EPA's CSO Control Policy and for GPRA purposes is 1,200 hours and $42,351.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

Respondent Deer Lodge Park L.L.C. is an “operator”, as that term is defined at 40 CFR Part 122, in control of site specifications for the Deer Lodge Park residential subdivision. Construction activities associated with development of the Deer Lodge Park residential subdivision were unpermitted under either an individual NPDES permit or a NPDES Construction General Permit for six months in 2003. During this period, construction activity at the Deer Lodge Park site involved grading of roads, installation of a water tank, and installation of a well site. Storm water from the Deer Lodge Park construction site drains to a tributary of the East Fork Carson River. Pursuant to the proposed CA/FO, Respondent has consented to the assessment of a $3,000 penalty in this matter, and has certified that it will obtain coverage under a NPDES permit for construction activities at Deer Lodge Park.

Any person who comments on the proposed CA/FO shall be given notice of any hearing held and a reasonable opportunity to be heard and to present evidence. If no hearing is held regarding comments received, any person commenting on this proposed CA/FO may, within 30 days after the issuance of the final order, petition the Agency to set aside the CA/FO, as provided by section 309(g)(4)(C) of the CWA, 33 U.S.C. 1319(g)(4)(C). Procedures by which the public may submit written comments or participate in the proceedings are described in the Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties, Issuance of Compliance or Corrective Action Orders, and the Revocation, Termination or Suspension of Permits, 40 CFR Part 22.

This is a summary of the Auction No. 58 Revised License Inventory Public Notice released on August 3, 2004. The complete text of the Auction No. 58 Revised License Inventory Public Notice, including attachments 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 Revised License Inventory Public Notice 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 Revised License Inventory Public Notice is also available on the Internet at the Com­mission's Web site: http://wireless.fcc.gov/auctions/58/.

1. In the Auction No. 58 Comment Public Notice, 69 FR 40632 (July 6, 2004), the Wireless Telecommunications Bureau (“Bureau”) announced the auction of 234 licenses in the broadband Personal Communication Service scheduled to commence on January 12, 2005 (“Auction No. 58”). The Bureau also sought comment on procedures for the auction of those licenses. By the Auction No. 58 Revised License Inventory Public Notice, the Bureau revises the auction inventory to also include eight D and E block broadband PCS licenses. Under the Commission's Part 24 rules, broadband PCS spectrum in the D and E blocks is not subject to the entrepreneur eligibility restrictions. These eight additional licenses, as well as the other licenses to be offered in Auction No. 58, are identified in Attachment A of the Auction No. 58 Revised License Inventory Public Notice. The Auction No. 58 Revised License Inventory Public Notice seeks comment on procedural issues related to the auction of the eight additional D and E block licenses. Parties that submitted comments and/or reply comments in response to the Auction No. 58 Comment Public Notice should not resubmit those filings. Parties should submit comments regarding the auction procedures only to the extent that they relate to the new licenses included in the auction inventory.

2. For the eight additional D and E block licenses offered in Auction No. 58, the Bureau proposes to use the same formula for calculating minimum opening bids as proposed in the Auction No. 58 Comment Public Notice. Specifically, for Auction No. 58, the Bureau has proposed to calculate minimum opening bids on a license-by-license basis using formulas based on bandwidth and license area population. Furthermore, the Bureau has proposed to differentiate these formulas based on the population of each license area.

The specific minimum opening bid for each license available in Auction No. 58 is set forth in Attachment A of the Auction No. 58 Revised License Inventory Public Notice. The Bureau seek comment on these proposals in the same manner as in the Auction No. 58 Comment Public Notice, but in this case, only as these proposals relate to the eight licenses added to the auction inventory. Parties that submitted comments and/or reply comments regarding the reserve price or minimum opening bid in response to the Auction No. 58 Comment Public Notice need not submit new comments unless it relates to the addition of the eight licenses.

3. For the eight additional D and E block licenses offered in Auction No. 58, the Bureau proposes to use the same formula for determining upfront payments as previously proposed in the Auction No. 58 Comment Public Notice. Specifically, for Auction No. 58, the Bureau has proposed to calculate upfront payments on a license-by-license basis using a formula based on bandwidth and license area population:

The specific proposed upfront payment for each license available in Auction No. 58 is set forth in Attachment A of the Auction No. 58 Revised License Inventory Public Notice. The Bureau further proposed 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 Revised License Inventory 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 seeks comment on these proposals as they relate to the eight licenses added to the auction inventory.

4. In the Auction No. 58 Comment Public Notice, the Bureau also set forth and sought comment on the following proposals relating to auction structure and bidding procedures: (i) Simultaneous multiple-round auction design; (ii) activity rules; (iii) activity rule waivers and reducing eligibility; (iv) information relating to auction delay, suspension or cancellation; (v) round structure; (vi) minimum acceptable bids and bid increments; (vii) high bids and tied bids; (viii) information regarding bid withdrawal and bid removal; and (ix) auction stopping rule. For the additional licenses in Auction No. 58, the Bureau proposes to use the same auction structure and bidding procedures proposed in the Auction No. 58 Comment Public Notice. The Bureau seeks comment on these proposals as they relate to the eight additional licenses included in Attachment A of the Auction No. 58 Revised License Inventory Public Notice.

5. Comments are due on or before August 17, 2004, and reply comments are due on or before August 20, 2004. 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.

6. 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 synopsis of the Notice of Inquiry, FCC 04-175, adopted July 15, 2004 and released July 28, 2004. The full text of the Commission's NOI is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257) at its headquarters, 445 12th Street, SW., Washington, DC 20554, or may be purchased from the Commission's copy contractor, Qualex International, (202) 863-2893, Portals II, Room CY-B402, 445 12th St., SW., Washington, DC 20554, or may be reviewed via Internet at http://www.fcc.gov/mb.

1. We initiate this Notice of Inquiry (“ NOI ”) to seek comment on issues relating to the presentation of violent programming on television and its impact on children. Violent television programming content has been a matter of private and governmental concern and discussion from at least the early 1950s. Congress' response, in 1996, was adoption of section 551 of the Telecommunication Act 1996, which resulted in the Commission's implementation of the companion elements of the voluntary television rating system and associated “V-chip” technology in 1998. More recently, the Commission has received continuing expressions of Congressional concern with respect to violent programming. On March 5, 2004, thirty-nine members of the U.S. House of Representatives, Committee on Energy and Commerce, requested the Commission to begin a “Notice of Inquiry on the issue of excessively violent broadcast television programming and its impact on children.” This proceeding is designed to be responsive to these concerns and to update the record on issues related to programmatic violence.

2. Through this proceeding we seek comment and information along the following lines of inquiry. How much violent programming is there, and what are the trends? What are the effects of viewing violent programming on children and other segments of the population? If particular portrayals of violence are more likely to cause deleterious effects than others, what specific kinds of programming should be the focus of any further public policymaking in this area? Should any further public policymaking address all violence or just excessive or gratuitous violence, and how should that be defined? Are the ratings system and the V-chip accomplishing their intended purpose, or are there additional mechanisms that might be developed to control exposure to media violence? Finally, are there legal constraints on either Congress or the Commission to regulate violent programming?

3. We seek specific information concerning how much televised violence there is on broadcast and non-broadcast television and whether the amount of violent programming is increasing or decreasing. The National TV Violence Study, which appears to be of the most extensive content analyses to date, involving the efforts of more than 300 people recording and watching more than 10,000 hours of television programming from 1994 to 1997, indicates that more than half of all television programming contains violence. More specifically, during the period of the study, the proportion of programming with violence consistently hovered around 60%. During prime time, the proportion rose from 53% to 67% on broadcast networks, and from 54% to 64% on basic ( i.e. , non-premium) cable channels. In addition, cartoons include an average of approximately one “high-risk” portrayal of violence per cartoon, as categorized by the researchers. There have been more recent reports on television violence. For example, the Parents Television Council (“PTC”) conducted a content study finding that on all the television networks combined, violence was 41% more frequent during the 8 p.m. Family Hour in 2002 than in 1998 and during the second hour of prime time (9-10 p.m.), violence was 134.4% more frequent in 2002 that in 1998.

4. We seek additional information on the frequency of televised violence. The National TV Violence Study reports the results of study during the three-year period 1994-1997. What more recent information, aside from the PTC Study noted above, is available about the incidence of violence on television programming? What are the trends? Are there differences between broadcast and non-broadcast media ( i.e. , cable and satellite)? Are there differences between premium and non-premium channels on cable or satellite?

5. At its core, concern about media violence derives from concern about deleterious effects, particularly on children, that may result from exposure to it. Over the course of several decades, much research has been developed to examine and study these effects. Much of the research within the public health and scientific communities suggests that exposure to media violence can be associated with certain negative effects. Three types of studies have generally been described in the literature; (1) field experiments in which subjects are shown video programming with their short-term post-viewing behavior monitored by researchers; (2) cross-sectional studies involving a survey of a sample of individuals at one point in time and their conduct correlated with the amount and type of their television viewing; and (3) longitudinal studies that survey the same group of individuals at different times over many years to determine the effects of television viewing on subsequent behavior. Through these studies efforts have been made to establish a cause and effect relationship between the viewing of “violent” programming by “children” and subsequent aggressive behavior on the part of these individuals. Various definitions of violence and various age groups have been involved. Some of the studies also involve the effects of television viewing of all types rather than just violent programming. Some involve the behavior of college-age or older viewers. The researchers have tended to focus on three possible harmful effects: (1) Increased antisocial behavior, including imitations of aggression or negative interaction; (2) desensitization to violence; and (3) increased fear of becoming a victim of violence.

6. A year 2000 review of the scientific research on the effects of entertainment media violence on children, which appears as part of the Federal Trade Commission's report on Marketing Violent Entertainment to Children, summarized the research as follows:

A 2001 report from the United States Surgeon General's 2001 Youth Violence: A Report of the Surgeon General summarized the research thus:

Research has continued since the completion of these two Reports, including new longitudinal studies buttressing the conclusion that childhood exposure to media violence lasts into adulthood and increases aggressive behavior. In addition, researchers have developed new methods of measuring the impact of exposure to media violence on children, including MRI brain mapping research conducted at the Indiana University School of Medicine and elsewhere. According to testimony given in 2003 before the Senate Committee on Commerce, Science & Transportation, a comprehensive bibliography of research and publications in this field includes 1,945 reports on children and television, approximately 600 of which deal with the issue of TV violence.

7. As indicated above, numerous studies have demonstrated the harmful effects of media violence on children. We seek comment on any additional recent research in the field. We seek additional comment on the debate and how the private sector, members of the public, and academia are continuing to address the net effects of media violence. Is there a correlation between exposure to violence and aggressive behavior? If so, what are the implications? Are there particular harms children suffer as a result of exposure to violent programming? What other factors contribute to observed aggressive behavior? Do depictions of violence in video programming have an identifiably different effect on children or adults than do descriptions of violence in other media, including print? How important is exposure to electronic media violence relative to other sources of exposure; i.e. , does watching Wile E. Coyote fall off a cliff in a cartoon have more or less an impact on a child's psyche than reading about Hansel and Gretel forcing a witch into a hot oven in Grimm's fairy tales? Are there countervailing benefits that flow from televised violence? Does the inclusion of violent events in fictional accounts help individuals understand and process actual incidences of violence they may encounter, experience, or learn of? Does violence serve any artistic function that should be considered, or are all depictions of violence necessarily gratuitous?

8. The above discussion assumes a well established definition of violence in terms of measuring both the amount and effect of violent programming. This is not necessarily the case. There are definitional difficulties because “not all violence is created equal.” From a public policy standpoint, is there a need to define all violence, or simply gratuitous or excessive violence?

9. For the purpose of determining, as a general matter, whether a program contains violence, researchers have used broad definitions. For example, one researcher defined violence as “the overt expression of force intended to hurt or kill” in a content analysis conducted in the 1960s as part of the National Commission on the Causes and Prevention of Violence. The National TV Violence Study defined violence as “any overt depiction of a credible threat of physical force or the actual use of such force intended to physically harm an animate being or group of beings. Violence also includes certain depictions of physically harmful consequences against an animate being or group that occur as a result of unseen violent means.” The UCLA Violence Reports defined violence as “the act of, attempt at, physical threat of or the consequences of physical force.” As the 1997 TV Violence Report explains, such broad definitions “include violence, cartoon violence, slapstick violence—anything that involves or immediately threatens physical harms of any sort, intentional or unintentional, self-inflicted or inflicted by someone or something else.” We seek comment on whether these definitions are appropriate.

10. At the same time, however, researchers have often attempted to identify the context, or qualitative nature, of a portrayal of violence. The 1997 TV Violence Report explains:

In other words the study suggests, “[t]he issue is not the mere presence of violence but the nature of violence and the context in which it occurs. Context is key to the determination of whether or not violence is appropriate.” The National TV Violence Study similarly emphasizes that “the way in which violence is presented helps to determine whether a portrayal might be harmful to viewers.”

11. But distinguishing one form of violence from another based on context is a difficult exercise. Again, in explaining how the researchers involved in the UCLA violence studies determined which programs raised “concerns” about violence, the 1997 TV Violence Report illustrates the problem:

We seek comment on these issues.

12. Against the backdrop of these definitional difficulties, what kinds of portrayals of violence are of greatest concern, particularly with respect to children? The National TV Violence Study states that “[i]f the consequences of violence are demonstrated, if violence is shown to be regretted or punished, if its perpetrators are not glamorized, if the act of violence is not seen as justifiable, if in general violence is shown in a negative light, then the portrayal of violence may not create undesirable consequences. But if violence is glamorized, sanitized or made to seem routine, then the message is that it is an acceptable, and perhaps even desirable, course of action.” More specifically, the National TV Violence Study indicates that the portrayals that pose the greatest risk for learning aggression contain attractive perpetrators, morally justified reasons for engaging in violence, repeated incidents of violence that appear realistic, violence that is rewarded or unpunished, and violence that does not show harm or pain to a victim or is presented in a humorous context. According to the study, portrayals that pose the greatest risk for desensitization contain repeated incidents of violence or violence presented in a humorous context. Portrayals that pose the greatest risk for audience fear contain attractive victims, violence that appears unjustified, repeated and realistic, and unpunished. In addition, the 1997 TV Violence Report provides as examples of “inappropriate or improper uses of violence” those “which glorify the act or teach that violence is always the way to resolve conflict.” That report further states that “the consequences of violence should be shown and those persons using violence inappropriately should be punished. We would also note that when violence is used realistically, it is more desirable to accurately portray the consequences than to sanitize the violence in a manner designed to make it acceptable.” On the other hand, some might argue that a television program such as “The Three Stooges” does not pose a great risk to children even if the violence is presented humorously and without obvious consequences. Similarly, some might argue that more graphic violence is potentially more harmful to children than violence in which, for example, a body falls from a gunshot wound but the wounds are not shown. We seek additional comment on the types of portrayals that are of greatest concern, particularly with respect to children.

13. How much televised violence is portrayed in a way that is most likely to harm children? For example, the National TV Violence Study states that 40% of the violent incidents studied were initiated by characters with qualities that make them good role models; 70% of violent scenes do not show penalty or remorse for violence at the time it occurs; roughly half of violent incidents do not show physical harm or pain; at least 40% of violent scenes include humor. The UCLA reports also identify particular shows that raised “concerns” about violence, according to a variety of contextual factors. We seek additional information on what type of programming is potentially the most damaging, and how frequently it occurs.

14. As we consider definitional issues, we also ask commenters to identify with precision the age groups that qualify as “children” when they discuss whether violent programming is harmful to them. Some scholarship suggests that children under the age of seven or eight are especially impressionable because they have difficulty distinguishing between fantasy and reality. We seek additional information on research that evidences and explains the particular age groups that are of concern.

15. Finally, in the context of possible regulation in this area, we note that members of the House Commerce Committee have asked the Commission to examine whether it would be in the public interest for the agency to define “excessively violent programming that is harmful to children,” and if so, how we might do so. We also seek comment on how such a standard could be implemented in a manner that is both clear to the industry and practical to administer. We seek comment on these issues to be responsive to the Committee's concerns.

16. A regulatory system already exists to help parents and viewers control the exposure of children to media violence. The television industry rates programming using the TV Parental Guidelines, and encodes programming accordingly; in addition, the Commission has required that, by January 1, 2000, all television sets manufactured in the United States or shipped in interstate commerce with a picture screen of thirteen inches or larger be equipped with a “V-chip” that can be programmed to block violent, sexual, or other programming that parents believe harmful to their children.

17. We seek comment on the status of the existing rating and V-chip system as tools to help parents and viewers screen out violence. To what extent is programming in fact rated, using both the age-based ratings, and the additional content labels for violence? Are the ratings consistent and accurate? A 1998 Kaiser Family Foundation study indicates that, during the first year the ratings system was in use, only 20% of programs that contained violence, sexual material, or adult language actually used the appropriate content label. This same study found that 79% of violent programming is not specifically rated for violence.” Moreover, a 2001 Kaiser Family Foundation study indicates that 40% of parents who use the rating system do not believe programs are rated accurately. According to that study, more than half of all parents use the ratings system to decide what programming that their children may watch. In light of these findings, we seek comment on whether the lack of a content rating for violence renders ineffective any technology-based blocking mechanism, built into television sets, designed to limit violent programming.

18. We seek comment on these findings of the Kaiser Family Foundation. Is more recent information available on these issues? To what extent is use being made of the rating system? Do the TV Parental Guidelines now in use give parents sufficient information to make educated programming decisions for their children?

19. We also seek comment on the usefulness of the V-chip. Although as many as 40% of parents have television sets equipped with a V-chip, more than half of them are not aware of it, and two thirds of those who are do not use it. The Kaiser Foundation, in a recent study, has found that parents have not used the V-Chip even after a concerted effort to inform them about it. We seek comment on recent initiatives to educate parents about the V-Chip's availability. What can be done to enhance the usefulness of the V-chip? Are there ways to improve the ratings system?

20. If the TV Parental Guidelines and V-chip are not adequate to protect children from any identifiable dangers of exposure to media violence, what other mechanisms are available? In their recent letter, members of the House Commerce Committee specifically asked how the Commission “might restrict broadcast of ‘excessively violent programming that is harmful to children’ during the hours when children are likely to be a substantial part of the viewing audience, so that it might supplement the TV ratings system, such as by creating time of day restrictions and measures that facilitate a consumer's use of the television ratings system.” The legislation pending in Congress also involves a “safe harbor” provision and the Senate has adopted language to that effect.

21. A starting point for considering a “safe harbor” solution is our indecency rules. Indecent speech is entitled to constitutional protection, and so cannot be prohibited entirely. However, to protect children, the Commission's rules prohibit the broadcast of indecent speech from 6 a.m. to 10 p.m., when children are likely to be a substantial part of the viewing audience. The Commission may fine television and radio stations for broadcasting indecent content during this time period. At other times of the day, during the “safe harbor” of the late night and early morning hours, the Commission permits the broadcast of such speech. Obscene speech on cable and other subscription television services, as well as on broadcast services, is a criminal offense at all hours. Indecency regulation is only applied to broadcast services. Would it be in the public interest to have “safe harbor” restrictions on violent programming content? Should it apply to the broadcast medium only?

22. Alternatively, the Congress or the Commission could tie the application of any “safe harbor” to the television ratings system, as the bill pending before the Senate Commerce Committee does. That bill would declare it “unlawful for any person to distribute to the public any violent video programming not blockable by electronic means specifically on the basis of its violent content when children are reasonably likely to comprise a substantial portion of the audience.” The Senate bill would also require the Commission, upon finding in ongoing review that the television ratings system and the V-chip were not accomplishing their intended purposes, to “prohibit the distribution of violent video programming during the hours when children are reasonably likely to comprise a substantial portion of the audience.” In other words, the bill would restrict violent programming to a “safe harbor” only if the programming has not been rated violent, or if the Commission finds that the ratings system and V-chip are not accomplishing their intended purpose. The bill does not distinguish between broadcast and non-broadcast media, and specifically notes that “[b]roadcast television, cable television, and video programming are (A) uniquely pervasive presences in the lives of all American children; and (B) readily accessible to all American children.” We seek comment on whether the V-Chip is accomplishing its intended purpose, and if not, whether the safe harbor approach represents the least restrictive means to protect children.

23. We seek to explore here the bounds of permissible action, both regulatory and statutory, in light of the relevant statutory and constitutional constraints. In their recent letter, members of the House Commerce Committee have asked whether the Commission currently has the authority to adopt a “safe harbor” for the broadcast of violent programming, “or whether Congress would need to provide the Commission with statutory authority to do so, and whether Congress could provide the FCC with that authority in a constitutional fashion.” Members of the House Commerce Committee have also asked about constitutional limitations on our ability to define the phrase “excessively violent programming that is harmful to children,” or to create a “safe harbor” for such programming. If such a mechanism were adopted, should there be an exception for news or other types of unrated programs? Should there be an exception for cultural, historical, or artistic merit?

24. The Communications Act gives the Commission broad authority to regulate the broadcast medium as the public interest requires. In order to grant a radio license, Title III of the Act requires the Commission to determine “whether the public interest, convenience, and necessity will be served by the granting of such application,” and to issue a license only upon making an affirmative finding. Title III likewise directs the Commission, “as the public interest, convenience, and necessity requires,” to “[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act. * * *” However, Section 326 in Title III also states: “Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.” Is the Commission's general public interest authority sufficiently broad to regulate any form of violent programming, in light of Section 326? Does the DC Circuit's recent decision in Motion Picture Association of America v. FCC (“MPAA”) suggest that the Commission's public interest authority does not extend to regulation of violent program content?

25. The statutory prohibition against “obscene, indecent, or profane language,” upon which our ban on obscene speech and safe harbor for indecent and profane speech are based, does not implicate Section 326. Given the interest of members of the House Commerce Committee in creating a “safe harbor,” and its question whether we currently have the authority to adopt such a mechanism to regulate violence, could the Commission expand its definition of indecency to include violent programming? The Commission has traditionally defined indecency in terms of sexual or excretory organs and activities, but the Supreme Court has concluded that the term indecent “merely refers to nonconformance with accepted standards of morality” and that “neither our prior decisions nor the language or history of § 1464 supports the conclusion that prurient appeal is an essential component of indecent language.” Certain commentators go even further and argue that violent programming qualifies as obscene speech, which is not entitled to any First Amendment protection. In this regard, we note an opinion of the U.S. Court of Appeals for the Seventh Circuit declining to conflate obscenity and violence in the context of a particular ordinance regulating violent video games, yet suggesting that a demonstrated link between exposure to such games and deleterious effects could possibly provide a basis for regulation of violent “pictures.” We recognize that an interpretation of indecency or obscenity as encompassing violence would be novel, but we seek to determine the scope of existing standards to regulate violent programming, as members of the House Commerce Committee request.

26. How does Title V of the 1996 Act, entitled “Obscenity and Violence,” affect the Commission's general authority in this area? Section 551 directed the Commission to prescribe “guidelines and recommended procedures for the identification and rating of video programming that contains sexual, violent, or other indecent material about which parents should be informed before it is displayed to children,” if the television industry itself did not establish “voluntary rules” for rating such programming that were “acceptable to the Commission.” Does the reference to “violent or other indecent material” indicate that indecency encompasses violence, or otherwise suggest that Congress intended to empower the agency to regulate violent programming? Was the Commission's authority under this provision at an end once it found the industry guidelines acceptable? In other words, does the statutory scheme suggest that Congress has occupied the field of media violence, such that the Commission cannot act without new legislation?

27. What is the extent of the Commission's current authority over cable television in this area? Title VI of the Act states that “[a]ny Federal agency, State, or franchising authority may not impose requirements regarding the provision or content of cable services, except as provided in this title.” As indicated above, transmission of obscene and other speech is “unprotected by the Constitution of the United States” and is a criminal offense. Title VI also states that, “[i]n order to restrict the viewing of programming which is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscriber can prohibit the viewing of a particular cable service during periods selected by that subscriber.” Title VI further states that “[u]pon request by a cable service subscriber, a cable operator shall, without charge, fully scramble or otherwise fully block the audio and video programming of each channel carrying such programming so that one not a subscriber does not receive it.” The Supreme Court has found this latter provision could be a less restrictive means than a “safe harbor” or “time channeling” requirement to protect children from sexually explicit programming. We seek comment on whether the Commission has authority to regulate violent programming on cable television other than as specifically provided in Title VI. Does the Commission have broader statutory authority to regulate violent programming on DBS and other non-broadcast subscription services, which are not covered by Section 544(f), than on cable services?

28. Assuming the Commission has or is granted statutory authority to regulate violent programming, what constitutional limitations apply? For example, given the definitional issues discussed above, how could Congress or the Commission define some form of violent programming in a way that is not unconstitutionally vague or overbroad? In addition, what standard of constitutional review should apply to broadcast regulation in this area? To non-broadcast? Even if protecting children from some form of violent programming is deemed a sufficiently important government interest, is a “safe harbor” the appropriate and most tailored means to accomplish that public policy? Given the mechanisms available to cable subscribers to block programming under Title VI, could a “safe harbor” constitutionally be applied to cable services? We seek comment on how Congress might legislate and the Commission might regulate in this area, consistent with applicable constitutional principles.

29. We recognize that television programming may have a positive influence on individual behavior, especially educational and informational material directed at children. The literature suggests that consumption of educational television programming correlates positively to children's school preparedness and may also encourage beneficial social skills and behavioral development. Are there recent studies analyzing the pro-social effects of television programming that we should be aware of? What broadcast or non-broadcast services carry such material? How are parents made aware that such programming is available? We seek comment on what actions Congress or the Commission may take to encourage more programming choices that have a positive effect on children's development.

30. Ex Parte Rules . Pursuant to section 1.1204(b)(1) of the Commission's rules, 47 CFR 1.1204(b)(1), this is an exempt proceeding. Ex parte presentations are permitted, and need not be disclosed.

31. Comments and Reply Comments . Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties must file comments on or before September 15, 2004, and reply comments on or before October 15, 2004. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings , 63 FR 24121 (1998). Accessible formats (computer diskettes, large print, audio recording, and Braille) are available to persons with disabilities by contacting Brian Millin, of the Consumer & Governmental Affairs Bureau, at (202) 418-7426, TTY (202) 418-7365, or at brian.millin@fcc.gov .

32. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html . Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov , and should include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in reply.

33. Parties who choose to file by paper must file and original and four copies of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Best Copy and Printing, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at Suite CY-B402, 445 12th Street, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail, should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

34. Additional Information . For additional information on this proceeding, contact Ben Golant at 418-7111.

35. Accordingly, it is ordered that , pursuant to the authority contained in sections 4(i), 303(g), 303(r), and 403 of the Communications Act, 47 U.S.C. 154(i), 303, and 403, this Notice of Inquiry is adopted.

In the Federal Register of February 26, 2004 (69 FR 8978), the agency announced that the proposed information collection had been submitted to OMB for review and clearance under 44 U.S.C. 3507. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0518. The approval expires on June 30, 2007. A copy of the supporting statement for this information collection is available on the Internet at http://www.fda.gov/ohrms/dockets .