The National Wildlife Services Advisory Committee (the Committee) advises the Secretary of Agriculture on policies, program issues, and research needed to conduct the Wildlife Services program. The committee also serves as a public forum enabling those affected by the Wildlife Services program to have a voice in the program's policies. The Committee Chairperson and Vice Chairperson shall be elected by the Committee from among its members.

Terms will expire for the current members of the Committee in July 2005. We are soliciting nominations from interested organizations and individuals to replace members on the Committee. An organization may nominate individuals from within or outside its membership. The Secretary will select members to obtain the broadest possible representation on the Committee, in accordance with the Federal Advisory Committee Act (5 U.S.C. App. II) and U.S. Department of Agriculture (USDA) Regulation 1041-1. Equal opportunity practices, in line with the USDA policies, will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee have taken into account the needs of the diverse groups served by the Department, membership should include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities.

Under the Virus-Serum-Toxin Act (21 U.S.C. 151 et seq.), a veterinary biological product must be shown to be pure, safe, potent, and efficacious before a veterinary biological product license may be issued. A field test is generally necessary to satisfy prelicensing requirements for veterinary biological products. Prior to conducting a field test on an unlicensed product, an applicant must obtain approval from the Animal and Plant Health Inspection Service (APHIS), as well as obtain APHIS' authorization to ship the product for field testing.

To determine whether to authorize shipment and grant approval for the field testing of the unlicensed product referenced in this notice, APHIS conducted a risk analysis to assess the potential effects of this product on the safety of animals, public health, and the environment. Based on the risk analysis, APHIS has prepared an environmental assessment (EA) concerning the field testing of the following unlicensed veterinary biological product:

Requester: Fort Dodge Animal Health.

Product: Escherichia Coli Vaccine, Live Culture.

Field Test Locations: Delaware, Maryland, Georgia, Virginia, and Arkansas.

The above-mentioned product is a live aroA gene-deleted Escherichia Coli Vaccine. The vaccine is for use in chickens as an aid in the prevention of disease caused by Escherichia coli.

The EA has been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provision of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

Unless substantial issues with adverse environmental impacts are raised in response to this notice, APHIS intends to issue a finding of no significant impact (FONSI) based on the EA and authorize shipment of the above product for the initiation of field tests following the close of the comment period for this notice.

Because the issues raised by field testing and by issuance of a license are identical, APHIS has concluded that the EA that is generated for field testing would also be applicable to the proposed licensing action. Provided that the field test data support the conclusions of the original EA and the issuance of a FONSI, APHIS does not intend to issue a separate EA and FONSI to support the issuance of the product license, and would determine that an environmental impact statement need not be prepared. APHIS intends to issue a veterinary biological product license for this vaccine following completion of the field test provided no adverse impacts on the human environment are identified and provided the product meets all other requirements for licensing.

Sun Valley Company has requested a new 40-year term ski area permit for the Bald Mountain Ski Resort. The existing ski area permit, which was issued in December 1977, expires December 2007. One requirement for a ski area permit is to have an approved Master Development Plan (MDP), which is prepared by the permit holder and encompasses the entire winter sports resort envisioned for development and authorization by the permit. Upon acceptance by the Authorized Officers, the MDP becomes part of the ski area permit. The EIS will analyze the effects of the proposed action and alternatives. The agencies give notice of the National Environmental Policy Act (NEPA) analysis and decision making process on the proposal so interested and affected members of the public may participate and contribute to the final decision. The Sawtooth National Forest, as the lead for both agencies, invites written comments and suggestions on the scope of the analysis and the issues to address.

The 1989 MDP currently guides the Forest Service and BLM in their administration of the special use permit for the ski area. A majority of the actions described in the 1989 MDP have been implemented. Given the age and status of the 1989 MDP, the Forest Service, BLM, and Sun Valley Company determined that an updated plan would be appropriate at this time. Sun Valley Company has updated their MDP for Bald Mountain Ski Area and presented it to the Forest Service and BLM in conjunction with their request for a new 40-year permit to continue operating on these public lands. The existing ski resort permit expires December 2007.

The draft MDP as submitted by Sun Valley Company is available electronically on the following Web sites: Sawtooth National Forest—http://www.fs.fed.us/r4/sawtooth and Sun Valley Company—http://www.sunvalley.com. An approved MDP will guide development on Bald Mountain Ski Area. Anticipated projects include new ski trail development both inside and outside of the current permit boundary, additional snowmaking installation, existing ski run modification, installation of new ski lifts, including gondola, removal of some existing ski lifts, and addition of a mountain restaurant. A Vegetation Management Plan (VMP) will be developed concurrently with the MDP, and will be shown as an appendix in the proposed MDP and analyzed as part of the proposed action. The VMP will assess current conditions of vegetative components on Bald Mountain, both with respect to timber and grass/forb species. The VMP will specify treatments necessary to enact, that will ensure long-term health of vegetation on Bald Mountain.

The purpose and need for the proposed MDP are as follows: Update the 1989 MDP to reflect current conditions and needs at the ski resort. Most of the improvements described in the 1989 MDP have been implemented. In addition, new ski area technologies, updated Land Management Plans, and changes in the environment have emerged during this time which warrant consideration in an updated MDP.

The proposed action to be analyzed in this EIS is to implement the MDP as submitted by the Sun Valley Company. The Agencies have a responsibility to determine consistency of the MDP with their respective Land Management Plans, to evaluate if any proposed facilities are in hazardous areas (i.e. avalanche path); evaluate if improvements are an appropriate use of Forest Service and BLM land; determine if private land is available to accomplish the proposed activities; and to make a public interest determination.

Possible alternatives include: Alt. 1—No Action (continuing the present course of action). The existing MDP would not be updated. The ski area permit would be renewed in 2007 and the current MDP would be made part of it. Alt. 2—Proposed Action, the MDP, as submitted by Sun Valley Company, would be attached to a new ski area permit. Other alternatives may be developed that meet the purpose and need and respond to issues associated with the proposed action.

The responsible officials are the Forest Supervisor for the Sawtooth National Forest and the District Manager for the Twin Falls District of the Idaho BLM.

The decision to be made is whether or not to approve the proposed MDP as a condition of the special use permit, or to approve an alternative to the proposed action. After a MDP is approved, a 40-year ski area resort permit would be issued.

Public notices will be placed in local newspapers. Public meetings will be held in conjunction with Sun Valley Company. Informal public participation is encouraged throughout this process. Formal opportunity for public review and comment will be provided upon publication of the Draft EIS.

This notice of intent initiates the scoping process which guides the development of the environmental impact statement for the update of the Bald Mountain Ski Resort MDP.

A draft environmental impact statement will be prepared for comment. The comment period on the draft environmental impact statement will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the Federal Register.

The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the draft environmental impact statement stage but that are not raised until after completion of the final environmental impact statement may be waived or dismissed by the courts. City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir. 1986) and Wisconsin Heritages, Inc. v. Harris, 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the comment period for the draft environmental impact statement so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final environmental impact statement.

To assist the Forest Service in identifying and considering issues raised by the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.

Agenda topics include a field visit to view projects completed in the Bull River area using Title II funds. If the meeting time or location is changed, notice will be posted in the local newspapers, including the Clark Fork Valley Press, Sanders County Ledger, Daily Interlake, Missoulian, and River Journal.

Georgia Transmission Corporation proposes to construct a 500 kilovolt transmission line between the Thomson Substation (located on Hampton-Davis Road, 4 miles east of Thomson, Georgia, and 2 miles northeast of Boneville, Georgia) to the Warthen Switching Station (located 8 miles northwest of Warthen, Georgia and 1.5 miles southwest of State Highway 15 on Mill Lindsey School Road). It is near the Scherer-Warthen 500 kV Transmission Line and adjacent to the Duke Energy North America's Sandersville Facility, a combustion turbine generation plant. Lattice steel towers ranging in height from 80- to 150-feet would support the conductors and would require a right-of-way of 180 feet. The approximate length of the transmission line is 40 miles. It is anticipated that this transmission line would be in service in the spring of 2010.

Alternatives considered by RUS and Georgia Transmission Corporation include: (a) No action, (b) alternative transmission improvements, and (c) alternative transmission line corridors. An Electric Alternative Evaluation and Macro Corridor Study Report, prepared by Georgia Transmission Corporation, will be presented at the public scoping meeting. The Report is available for public review at RUS at the address provided in this notice, at Georgia Transmission Corporation, 2100 East Exchange Place, Tucker, Georgia 30084 and at: Glascock County Public Library, 738 Railroad Avenue, Gibson, GA 30810, Phone: 706-598-9837. Harlem Library, 375 North Louisville Street, Harlem, GA 30814, Phone: 706-556-9795. Hancock County Library, 403 East Broad Street, Sparta, GA 31087, Phone: 706-444-5389. Rosa M Tarbutton Memorial Library, 314 South Harris Street, Sandersville, GA 31082, Phone: 478-552-6324. Thomson McDufffie County Library, 338 Main Street, Thomson, GA 30824, Phone: 706-595-1341. Warren County Library, 101 Warren Street, Warrenton, GA 30828, Phone: 706-465-2656.

Government agencies, private organizations, and the public are invited to participate in the planning and analysis of the proposed project. Representatives from RUS and Georgia Transmission Corporation will be available at the scoping meetings to discuss RUS’ environmental review process, describe the project, the need for the project, and macro corridors under consideration, and discuss the scope of environmental issues to be considered, answer questions, and accept oral and written comments. Written comments will be accepted for 30 days after the public scoping meeting. Written comments should be sent to RUS at the address provided in this notice.

From information provided in the alternative evaluation and site selection study, input that may be provided by government agencies, private organizations, and the public, Georgia Transmission Corporation will prepare an environmental analysis to be submitted to RUS for review. RUS will use the environmental analysis to determine the significance of the impacts of the project and may adopt it as its environmental assessment of the project. RUS' environmental assessment of the project would be available for review and comment for 30 days.

Should RUS determine, based on the Environmental Assessment of the project, that the impacts of the construction and operation of the plant would not have a significant environmental impact, it will prepare a finding of no significant impact. Public notification of a finding of no significant impact would be published in the Federal Register and in newspapers with a circulation in the project area.

Any final action by RUS related to the proposed project will be subject to, and contingent upon, compliance with environmental review requirements as prescribed by the Council on Environmental Quality (CEQ) and RUS’ environmental policies and procedures.

On December 20, 2004, the Department published the preliminary determination of sales at LTFV in the antidumping investigation of chlorinated isocyanurates from Spain. See Chlorinated Isocyanurates From Spain: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 69 FR 75902 (December 20, 2004) (“Preliminary Determination”). Since the Preliminary Determination, the following events have occurred.

On January 12, 2005, the petitioners 1 submitted a request for a public hearing. We conducted verification of the sales and cost questionnaire responses of Aragonesas Delsa S.A. (“Delsa”), the sole respondent in this investigation, from January 31, 2005, through February 11, 2005. On February 17, 2005, Delsa submitted revised sales data resulting from corrections made at verification. We gave interested parties an opportunity to comment on our Preliminary Determination and our findings at verification. On March 15, 2005, the petitioners and respondent submitted case briefs, and on March 22, 2005, these parties submitted rebuttal briefs. The Department held a public hearing on March 29, 2005.

The period of investigation (“POI”) is April 1, 2003, through March 31, 2004. See 19 CFR 351.204(b)(1).

The products covered by this investigation are chlorinated isocyanurates. Chlorinated isocyanurates are derivatives of cyanuric acid, described as chlorinated s-triazine triones. There are three primary chemical compositions of chlorinated isocyanurates: (1) Trichloroisocyanuric acid (Cl3(NCO)3), (2) sodium dichloroisocyanurate (dihydrate) (NaCl2(NCO)3 2H2O), and (3) sodium dichloroisocyanurate (anhydrous) (NaCl2(NCO)3). Chlorinated isocyanurates are available in powder, granular, and tableted forms. This investigation covers all chlorinated isocyanurates.

Chlorinated isocyanurates are currently classifiable under subheadings 2933.69.6015, 2933.69.6021, and 2933.69.6050 of the Harmonized Tariff Schedule of the United States (“HTSUS”).2 The tariff classification 2933.69.6015 covers sodium dichloroisocyanurates (anhydrous and dihydrate forms) and trichloroisocyanuric acid. The tariff classifications 2933.69.6021 and 2933.69.6050 represent basket categories that include chlorinated isocyanurates and other compounds including an unfused triazine ring. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

On July 1, 2004, Arch Chemicals, Inc. (“Arch”), an importer, argued that its patented, formulated, chlorinated isocyanurates tablet is not covered by the scope of this investigation. In the Preliminary Determination, we found that Arch's patented chlorinated isocyanurates tablet is included within the scope of this antidumping duty investigation.

See Preliminary Determination, and Memorandum from Holly A. Kuga, Senior Office Director, to Barbara E. Tillman, Acting Deputy Assistant Secretary for Import Administration, “Scope of the Antidumping Duty Investigations of Chlorinated Isocyanurates from the People's Republic of China and Spain,” dated December 10, 2004. We received no further comments from any interested party regarding our preliminary decision on this issue. Therefore, for this final determination, we find that Arch's patented chlorinated isocyanurates tablet is included within the scope of this antidumping duty investigation.

All issues raised in the case and rebuttal briefs by parties to this proceeding and to which we have responded are listed in the Appendix to this notice and addressed in the Memorandum from Barbara E. Tillman, Acting Deputy Assistant Secretary for Import Administration, to Joseph A. Spetrini, Acting Assistant Secretary for Import Administration, “Issues and Decision Memorandum for the Final Determination in the Antidumping Investigation of Chlorinated Isocyanurates from Spain,” (“Issues and Decision Memorandum”) dated concurrently with this notice, which is hereby adopted by this notice. Parties can find a complete discussion of the issues raised in this investigation and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099, of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Internet at http://ia.ita.doc.gov/frn/summary/list.html. The paper copy and electronic version of the Issues and Decision Memorandum are identical in content.

As further discussed below, pursuant to sections 776(a)(2)(B) and (C), and 776(b) of the Act, the Department determines that the application of partial adverse facts available (“AFA”) is warranted for Delsa's home market (“HM”) inland freight and U.S. market movement expenses. Section 776(a)(2) of the Act, provides that, if an interested party (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested, subject to sections 782(c)(1) and (e) of the Act; (C) significantly impedes a proceeding under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination. Section 782(d) of the Act provides that the Department must inform the interested party of the nature of any deficiency in its response and, to the extent practicable, allow the interested party to remedy or explain such deficiency. Pursuant to section 782(e) of the Act, the Department shall not decline to consider submitted information if all of the following requirements are met: (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability; and (5) the information can be used without undue difficulties.

We find that pursuant to sections 776(a)(2)(B) and (C) of the Act, we should apply facts available to Delsa's HM inland freight and U.S. market movement expenses (consisting of foreign inland freight, foreign brokerage and handling, international freight, and U.S. brokerage and handling) because (1) Delsa failed to accurately and timely report these expenses; (2) Delsa took action that further impeded the Department's ability to conduct the proceeding; and (3) Delsa provided information that could not be verified.

With respect to HM inland freight, Delsa stated in its initial and first supplemental section B questionnaire responses that it reported its HM inland freight using an allocation methodology. See August 23, 2004, Section B submission at 11 and September 29, 2004, first supplemental Section B submission at 7. In our second supplemental questionnaire, we instructed Delsa to provide a full explanation of the allocation methodology and explain why it represents a reasonable allocation. Delsa provided a one sentence answer in its second supplemental response: “We have revised our home market sales file with the actual amount of freight for each transaction.” See November 22, 2004, second supplemental Section B submission at 3. (Emphasis added). Furthermore, Delsa reiterated in its third supplemental questionnaire response that it reported actual HM inland freight expenses. See December 2, 2004, third supplemental questionnaire submission at 4. Given that Delsa stated that it reported the actual amount of freight for each transaction, the Department concluded that Delsa no longer used an allocation methodology.

However, at verification, Delsa stated that it had incorrectly reported to the Department that it was submitting actual transaction-specific freight cost data for its HM sales, and instead submitted a worksheet that provided a limited overview of its allocation methodology. At verification, the Department tested the results of this allocation methodology against actual costs in selected sales and found the discrepancies between the actual and allocated freight to be so great as to indicate that the allocation methodology does not result in per-unit expenses that reasonably approximate the actual expenses. At no point in this investigation, prior to verification, did Delsa notify the Department that it had any difficulties complying with the Department's requests for information. Delsa did not seek guidance on the applicable reporting requirements as contemplated by section 782(c)(1) of the Act. Instead, Delsa only reported at the start of verification that it had reported its HM inland freight expenses using an allocation methodology, after reporting in its last two supplemental questionnaire responses that it was providing actual HM inland freight expenses for each sale. Based on the above, we find that Delsa failed to provide accurate and timely information in the form and manner requested by the Department, within the meaning of section 776(a)(2)(B) of the Act.

See Issues and Decision Memorandum at Comment 3.

In addition, Delsa's failure to provide accurate and timely information concerning its HM freight expenses prevented the Department from requesting supplemental information regarding these expenses. Without this information, we were unable to satisfy ourselves that the information reported was complete and accurate. Since the Department does not accept new information at verification, and this allocation methodology was new information, we were precluded from verifying the specifics of how Delsa allocated its freight costs. Delsa thus took specific action to prevent the Department from determining the reliability of central elements of its responses, thereby impeding the proceeding. This action warrants the application of facts available pursuant to section 776(a)(2)(C) of the Act.

In regard to Delsa's U.S. movement expenses, Delsa reported to the Department in its questionnaire responses that it reported the actual costs that it was charged by its freight forwarder. The Department made supplemental requests for information regarding these movement expenses, and Delsa made corrections and provided explanations. See, e.g., September 29, 2004, supplemental section C submission at Exhibits C-7a and C-7b. However, Delsa reported at the beginning of the Department's verification that it made multiple errors affecting three reported movement expenses (foreign inland freight, foreign brokerage and handling, and international freight), with an undetermined, varying impact on each sale. Specifically, the errors were (1) failure to take account of containers that were only partially filled; (2) failure to take account of the decrease in freight charges on larger volume transactions; (3) failure to report the costs from another freight forwarding company that was used during the POI; (4) failure to account for changes that took place in the freight fee schedules; (5) failure to report the correct foreign inland freight for sales that originated from one of its factories; and (6) failure to account for weight differences in allocating costs to containers that held a mix of products that vary by weight. These errors affect a large number of U.S. sales and have an overlapping effect, so that the Department is unable to separately analyze the errors on an individual basis. Moreover, these errors have a large impact on the reported per-unit expenses for each variable. See Issues and Decision Memorandum at Comment 4. Furthermore, Delsa reported its U.S. brokerage and handling expenses for the first time at verification, even though Delsa denied having the ability to report this expense in its initial and first supplemental questionnaire responses. Delsa did not seek guidance concerning this expense on the applicable reporting requirements, as contemplated by section 782(c)(1) of the Act.

Based on the above, for its U.S. movement expenses (consisting of foreign inland freight, foreign brokerage and handling, international freight, and U.S. brokerage and handling), we find that Delsa failed to provide requested information before the established deadlines and in the form and manner requested by the Department, within the meaning of section 776(a)(2)(B) of the Act.

We further find that Delsa has significantly impeded the proceeding by providing changes to all of its U.S. movement expenses at the start of verification that significantly affect a large quantity of U.S. sales and have a large impact on the reported per-unit expenses. Calculation of U.S. movement expenses is necessary to the Department's calculation of net U.S. prices, which is in turn necessary to calculate accurate dumping margins. The information is in the respondent's possession and cannot otherwise be obtained by the Department. Therefore, we find that Delsa has significantly impeded the proceeding within the meaning of section 776(a)(2)(C) of the Act.

Furthermore, with respect to both HM inland freight and U.S. market movement expenses, Delsa has not met the requirements of sections 782(d) and (e) of the Act. Section 782(d) of the Act is not applicable because Delsa did not provide enough information to the Department to indicate that its reporting methodology for these HM and U.S. movement expenses might be deficient until the start of verification. It was not until verification that the Department was aware of the use of an allocation methodology for HM inland freight and the extent of the errors (i.e., in terms of quantity and volume) in Delsa's reported U.S. movement expenses. By this time, it was too late to notify Delsa of any deficiencies, obtain the allocation methodologies and possibly new data, and examine such methodologies and data for deficiencies.

Similarly, section 782(e) of the Act has also not been satisfied because Delsa failed to submit before the deadlines established by the Department reasonably accurate HM inland freight and U.S. movement expenses. In its response to the Department's second supplemental questionnaire, when the Department requested detailed information regarding Delsa's HM inland freight expense and U.S. movement expense reporting methodologies, Delsa reported that it provided actual HM expenses and U.S. market movement expenses based upon its freight schedules. At that time, Delsa did not acknowledge that its HM inland freight costs were, in fact, reported on an allocated basis. For U.S. movement expenses, Delsa reported significantly inaccurate U.S. movement expenses, due to its failure to go beyond the freight schedules, and take into account divergences from the scheduled fees. These statements by Delsa prevented the Department from asking additional questions about the methodology that Delsa actually did use. Thus, Delsa has failed to satisfy the requirements of subsections (1) and (2) of section 782(e).

Once the Department determines that the use of facts available is warranted, the Department must then determine whether an adverse inference is warranted pursuant to section 776(b) of the Act, which permits the Department to apply an adverse inference if it makes the additional finding that an interested party has failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information.

In determining whether a respondent has failed to cooperate to the best of its ability, the Department need not make a determination regarding the willfulness of the respondent's conduct. Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003). Instead, the courts have made clear that the Department must articulate its reasons for concluding that a party failed to cooperate to the best of its ability, and explain why the missing information is significant to the review. In determining whether a party failed to cooperate to the best of its ability, the Department considers whether a party could comply with the request for information, and whether a party paid sufficient attention to its statutory duties. Pacific Giant, Inc. v. United States, 223 F. Supp. 2d 1336, 1342 (CIT 2002); see also Tung Mung Dev. Co. v. United States, 2001 Ct. Intl. Trade LEXIS 94 at 89 (July 3, 2001). The Department also considers whether there is at issue a “pattern of behavior.” Borden, Inc. v. United States, 22 C.I.T. 1153 (CIT 1998)

As discussed below, we determine that, within the meaning of section 776(b) of the Act, Delsa failed to cooperate by not acting to the best of its ability to comply with the Department's request for information by not providing it with timely and accurate HM inland freight and U.S. movement expenses, and that the application of partial AFA is therefore warranted. On more than one occasion, Delsa failed to provide information when requested to do so by the Department. Specifically, Delsa misrepresented the nature of its HM inland freight data in its last two supplemental questionnaire responses by reporting to the Department that for its HM sales, it reported actual, transaction-specific inland freight costs. This precluded the Department from making supplemental requests for information regarding the allocation methodology that it did use. Delsa's misrepresentation prevented the Department from issuing supplemental questions that might otherwise have resulted in changes to the methodology, to make the methodology reasonable, such that the Department could have accepted it. In its questionnaire responses, Delsa did not provide evidence to support its allocation methodology, as it is required to do pursuant to 19 CFR 351.401(g)(2). Delsa failed to fully demonstrate that it could not provide its HM freight on an actual, transaction-specific basis. Moreover, Delsa failed to demonstrate that its allocation methodology did not yield distortive or inaccurate results. Without accurately reported expenses and costs, the Department is unable to calculate accurate net HM prices, which prevents the Department from calculating accurate dumping margins. We find that Delsa did not act to the best of its ability in reporting HM inland freight expenses, and therefore an adverse inference is warranted. As partial AFA, we are applying the lowest verified inland freight cost to all HM sales made by Delsa during the POI, except for those sales examined at verification and sales of a particular CONNUM for which Delsa provided actual, invoiced freight expenses during verification (and the Department successfully tested for accuracy). A complete explanation of the selection and application of partial AFA can be found in the Issues and Decision Memorandum at Comment 3.

Delsa also failed to accurately report its U.S. movement expenses (consisting of foreign inland freight, foreign brokerage and handling, and international freight), despite having three opportunities to do so in response to the Department's initial and supplemental questionnaires. Delsa reported corrections to multiple errors with respect to these variables at the Department's verification. Since each of these errors affect more than one movement variable, the overall impact of these errors on the reported variables is actually a net change resulting in increases and decreases of Delsa's reported U.S. movement expenses. Because (1) There were six errors affecting three variables, (2) the separate effect of each individual error cannot be determined with information on the record, as Delsa only provided the Department with the net effect of all of the errors, (3) the errors affect a large quantity of U.S. sales, and (4) the impact of these errors on the reported per-unit expense is also large, the corrections for these errors cannot be considered as minor corrections to the U.S. sales database. In addition, U.S. brokerage and handling was an expense that Delsa reported that it did not have until the Department's verification, even though the Department asked supplemental questions on this topic. The Court of International Trade has found that the “respondent bears the burden of creating a complete and adequate record upon which the Department can make its determination.” See NSK Ltd. v. United States, 919 F. Supp. 442, 449 (CIT 1996). See also Tianjin Mach. Imp. & Exp. Corp. v. United States, 353 F. Supp. 2d 1294, 1305 (CIT 2004) (“Although the standard does not demand perfection, it censures inattentiveness and carelessness.”). Therefore, the Department determines that Delsa failed to act to the best of its ability, and thus determines that partial adverse facts is warranted in this case. As partial AFA, we have selected the highest non-aberrational reported freight cost for all four U.S. freight variables. We have applied these per-unit expenses to all U.S. sales made by Delsa during the POI, except for those sales that were examined at verification. A complete explanation of the selection and application of partial AFA can be found in the Issues and Decision Memorandum at Comment 4.

As provided in section 782(i) of the Act, we verified the information submitted by Delsa for use in our final determination. We used standard verification procedures including examination of relevant accounting and production records, and original source documents provided by the respondent.

Based on our findings at verification, and analysis of comments received, we have made certain adjustments to the margin calculations used in the Preliminary Determination. These adjustments are discussed in detail in the Issues and Decision Memorandum and are listed below:

1. We corrected a clerical error with respect to our recalculation of HM credit expense.

2. We corrected a clerical error regarding the customer code used to allocate certain freight expenses incurred by Delsa for defective merchandise returned from the United States. In addition, although not a clerical error, we changed the allocation methodology to ensure a more appropriate allocation of these expenses. Lastly, we added U.S. brokerage and handling expenses to this calculation.

3. We applied partial AFA to Delsa's HM inland freight for sales that are not based upon actual, transaction-specific costs, and which have not been specifically verified.

4. We applied partial AFA to Delsa's foreign inland freight, foreign brokerage and handling, and international freight for all U.S. sales that have not been specifically verified.

5. We applied AFA to Delsa's U.S. brokerage and handling expenses that were reported for the first time during verification.

6. We revised the interest rate used in calculating U.S. credit expenses to the correct POI-average Federal Reserve rate.

7. We eliminated the second rebate variable from Delsa's HM price adjustments, pursuant to a minor correction that Delsa submitted at verification.

8. We recalculated Delsa's packaging costs to equal the packaging and packing costs reported for the Preliminary Determination less the packing expenses identified at verification. Accordingly, we revised the reported packing expenses to equal the packing expenses identified at verification. Since Delsa packs its products in an identical manner regardless of the market to which they are sold, we used the same values for packing in the home and U.S. markets.

9. We recalculated the adjustments to certain raw material costs based on the comparison of Delsa's reported transfer prices and market prices obtained at verification.

10. We adjusted the startup period for purposes of determining the amount, if any, of the startup adjustment.

11. We recalculated Delsa's financial expense ratio to include net foreign exchange losses in the numerator.

We determine that the following weighted-average dumping margins exist for the period April 1, 2003, through March 31, 2004:

Pursuant to section 735(c)(1)(B) of the Act, we will instruct U.S. Customs and Border Protection (“CBP”) to continue to suspend liquidation of all entries of chlorinated isocyanurates from Spain that are entered, or withdrawn from warehouse, for consumption on or after December 20, 2004, the date of publication of the Preliminary Determination in the Federal Register. We will instruct CBP to continue to require a cash deposit or the posting of a bond for each entry equal to the weighted-average dumping margins in the chart above. These instructions suspending liquidation will remain in effect until further notice.

In accordance with section 735(d) of the Act, we have notified the International Trade Commission (“ITC”) of our determination. As our final determination is affirmative, the ITC will determine, within 45 days, whether these imports are causing material injury, or threat of material injury, to an industry in the United States. If the ITC determines that material injury or threat of injury does not exist, the proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP officials to assess antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.

This notice serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

This determination is issued and published in accordance with sections 735(d) and 777(I) of the Act.

On August 28, 1988, the Department of Commerce (the Department) published the antidumping duty order for granular polytetrafluroetheylene (PTFE) resin from Japan. See Antidumping Duty Order; Granular Polytetrafluoroethylene Resin from Japan, 53 FR 32267 (August 28, 1988). On August 3, 2004, we published a notice of opportunity to request an administrative review of this order for the period August 1, 2003, through July 31, 2004. See Notice of Opportunity to Request Administrative Review of Antidumping Duty Order, Finding or Suspended Investigation, 69 FR 46496 (August 3, 2004). On August 30, 2004, Asahi Glass Fluoropolymers Ltd., a Japanese producer and exporter of the subject merchandise, and AGC Chemicals America, an affiliated U.S. importer of subject merchandise (collectively AGC), made a timely request that the Department conduct an administrative review of AGC. On September 22, 2004, in accordance with section 751(a) of the Tariff Act of 1930 as amended (the Act), the Department published in the Federal Register a notice of initiation of this antidumping duty administrative review. See Notice of Initiation of Antidumping Duty and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 69 FR 56745 (September 22, 2004). On October 8, 2004, the Department issued its antidumping duty questionnaire to AGC.

On November 2, 2004, AGC submitted a letter to the Department indicating that it did not have any shipments or entries of subject merchandise during the period of review but had one U.S. sale of PTFE resin during the period of review. As a result, on November 29, 2004, the Department issued a memorandum recommending rescission of the 2003-2004 administrative review and invited interested parties to comment. See Memorandum to Barbara E. Tillman, Acting Deputy Assistant Secretary dated November 29, 2004, (November 29 Memorandum). On December 10, 2004, AGC submitted comments in disagreement with the recommendation in the November 29 Memorandum. AGC argued that the Department does not have an established practice of conditioning an administrative review on the existence of entries during the period of review and that the Department's interpretation of 19 CFR 351.213(e) in this instance is inconsistent with the plain meaning of the regulation. AGC also argued that because no review of AGC's sales has occurred since the imposition of the antidumping duty order on August 28, 1988, the 2003-2004 administrative review would determine a more accurate deposit rate and, therefore, the Department should not rescind the administrative review.

Pursuant to 19 CFR 351.213(d)(3), we will rescind an administrative review in whole or only with respect to a particular exporter or producer if we conclude that during the period of review there were no entries, exports, or sales of the subject merchandise, as the case may be. Contrary to AGC's position that rescission of the 2003-2004 administrative review would not be in accordance with law and that the Department does not have an established practice of rescinding an administrative review based solely on the absence of entries, the Department's practice, supported by substantial precedent, requires that there be entries during the period of review upon which to assess antidumping duties, irrespective of the export-price or constructed export-price designation of U.S. sales. See, e.g., Stainless Steel Plate in Coils from Taiwan: Final Rescission of Antidumping Duty Administrative Review, 68 FR 63067 (November 7, 2003), and Stainless Steel Plate in Coils From Taiwan: Final Rescission of Antidumping Duty Administrative Review, 69 FR 20859 (April 19, 2004). Given that AGC had no entries of subject merchandise during the period of review and that AGC has no entry under suspension of liquidation that corresponds to the sale which occurred during the period of review, we would be unable to assess any antidumping duties resulting from this administrative review. See November 29 Memorandum. Accordingly, we intend to rescind the 2003-2004 administrative review.

Any interested party may request a hearing within 20 days of publication of this notice. Any hearing, if requested, will be held 34 days after the date of publication of this notice, or the first working day thereafter. Interested parties may submit case briefs not later than 20 days after the date of publication of this notice. Rebuttal briefs, which must be limited to issues raised in such briefs, must be filed not later than 7 days from the case brief after the date of publication of this notice. Parties who submit arguments are requested to submit with the argument (1) a statement of the issue, (2) a brief summary of the argument, and (3) a table of authorities. We will issue our final decision concerning the conduct of the review no later than 120 days from the date of publication of this notice.

Further, absent the completion of the 2003-2004 administrative review, the cash-deposit rate will remain at 51.45 percent and the all other rate will continue to be 91.74 percent (see Final Determination of Sales at Less Than Fair Value, 53 FR 25191 (July 5, 1988)).

This notice is published in accordance with section 777(i) of the Act and 19 CFR 351.213(d)(4).

On October 1, 2004, the Department initiated a sunset review of the antidumping duty order on iron castings from the PRC pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). 1 The Department received a Notice of Intent to Participate on behalf of Deeter Foundry, Inc., East Jordan Iron Works, Inc., LeBaron Foundry, Inc., Leed Foundry, Inc., Municipal Castings, Inc., Neenah Foundry Company, Tyler Pipe Company, and U.S. Foundry & Manufacturing Co. (collectively, “domestic interested parties”), within the deadline specified in section 351.218(d)(1)(i) of the Department's regulations. The domestic interested parties claimed interested party status under section 771(9)(C) of the Act as U.S. producers of the subject merchandise. We received a substantive response from the domestic interested parties within the deadline specified in the Department's regulations under section 351.218(d)(3)(i). However, we did not receive responses from any respondent interested parties as required in section 351.218(d)(3)(i) of the Department's regulations. As a result, the Department conducted an expedited sunset review of this order pursuant to section 751(c)(3)(B) of the Act and section 351.218(e)(1)(ii)(C)(2) of the Department's regulations.

The merchandise covered by the antidumping duty order consists of certain iron construction castings from the PRC, limited to manhole covers, rings, and frames, catch basin grates and frames, clean-out covers and frames used for drainage or access purposes for public utility, water and sanitary systems, classifiable as heavy castings under Harmonized Tariff Schedule (HTS) item number 7325.10.0010; and to valve, service, and meter boxes which are placed below ground to encase water, gas, or other valves, or water and gas meters, classifiable as light castings under HTS item number 7325.10.0050. The HTS item numbers are provided for convenience and customs purposes only. The written description remains dispositive.

All issues raised in this case are addressed in the “Issues and Decision Memorandum” (“Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to Joseph A. Spetrini, Acting Assistant Secretary for Import Administration, dated May 2, 2005, which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the order were revoked. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memorandum, which is on file in room B-099 of the main Department Building.

In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov/frn, under the heading “May 2005”. The paper copy and electronic version of the Decision Memo are identical in content.

We determine that revocation of the antidumping duty order on iron castings from the PRC would likely lead to continuation or recurrence of dumping at the following weighted-average percentage margin:

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

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

On October 1, 2004, the Department initiated a sunset review of the antidumping duty order on iron castings from Canada pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). See Initiation of Five-year (“Sunset”) Reviews, 69 FR 58890 (October 1, 2004). The Department received a Notice of Intent to Participate on behalf of Deeter Foundry, Inc., East Jordan Iron Works, Inc., LeBaron Foundry, Inc., Leed Foundry, Inc., Municipal Castings, Inc., Neenah Foundry Company, Tyler Pipe Company, and U.S. Foundry & Manufacturing Co. (collectively, “domestic interested parties”), within the deadline specified in section 351.218(d)(1)(i) of the Department's regulations. Domestic interested parties claimed interested party status under section 771(9)(C) of the Act as U.S. producers of the subject merchandise. The Department notes that Tyler Pipe is a U.S. producer of light castings only and is not an interested party in this proceeding.

The Department received a complete response from the domestic interested parties within the deadline specified in the Department's regulations under section 351.218(d)(3)(i). However, the Department received no responses from respondent interested parties as required in section 351.218(d)(3)(i) of the Department's regulations. As a result, the Department conducted an expedited sunset review pursuant to section 751(c)(3)(B) of the Act and section 351.218(e)(1)(ii)(C)(2) of the Department's regulations.

The merchandise subject to the antidumping duty order consists of certain iron construction castings from Canada, limited to manhole covers, rings, and frames, catch basin grates and frames, clean-out covers and frames used for drainage or access purposes for public utility, water and sanitary systems, classifiable as “heavy” castings under Harmonized Tariff Schedule (“HTS”) item number 7325.10.0010. These articles must be of cast iron, not alloyed, and not malleable.

On September 23, 1998, the Department issued final results of a changed circumstances review, in which the Department revoked the order with respect to “light” castings. As a result, only one HTS item number applies to this order. That number, HTS item number 7325.10.000, is provided for convenience and customs purposes only. The written description remains dispositive.

All issues raised in this case are addressed in the “Issues and Decision Memorandum” (“Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to Joseph A. Spetrini, Acting Assistant Secretary for Import Administration, dated May 2, 2005, which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the order were revoked. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memo, which is on file in room B-099 of the main Department Building.

In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov/frn, under the heading “May 2005.” The paper copy and electronic version of the Decision Memo are identical in content.

We determine that revocation of the antidumping duty order on iron castings from Canada would likely lead to continuation or recurrence of dumping at the following percentage weighted-average margins:

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

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

On November 1, 2004, the Department initiated a sunset review of the antidumping duty order on iron castings from Brazil pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”).1 The Department received a Notice of Intent to Participate on behalf of Deeter Foundry, Inc., East Jordan Iron Works, Inc., LeBaron Foundry, Inc., Leed Foundry, Inc., Municipal Castings, Inc., Neenah Foundry Company, Tyler Pipe Company, and U.S. Foundry & Manufacturing Co. (collectively, “the domestic interested parties”), within the deadline specified in section 351.218(d)(1)(i) of the Department's regulations. The domestic interested parties claimed interested party status under section 771(9)(C) of the Act as U.S. producers of the subject merchandise. We received a complete response from the domestic interested parties within the deadline specified in the Department's regulations under section 351.218(d)(3)(i). However, we did not receive responses from any respondent interested parties as required in section 351.218(d)(3)(i) of the Departments regulations. As a result, the Department conducted an expedited sunset review of this order pursuant to section 751(c)(3)(B) of the Act and section 351.218(e)(1)(ii)(C)(2) of the Department's regulations.

The merchandise covered by the antidumping duty order consists of certain iron construction castings from Brazil, limited to manhole covers, rings, and frames, catch basin grates and frames, clean-out covers and frames used for drainage or access purposes for public utility, water and sanitary systems, classifiable as heavy castings under Harmonized Tariff Schedule (HTS) item number 7325.10.0010; and to valve, service, and meter boxes which are placed below ground to encase water, gas, or other valves, or water and gas meters, classifiable as light castings under HTS item number 7325.10.0050. The HTS item numbers are provided for convenience and customs purposes only. The written description remains dispositive.

All issues raised in this case are addressed in the “Issues and Decision Memorandum” (“Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to Joseph A. Spetrini, Acting Assistant Secretary for Import Administration, dated May 2, 2005, which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the order were revoked. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memorandum, which is on file in room B-099 of the main Department Building.

In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov/frn, under the heading “May 2005.” The paper copy and electronic version of the Decision Memo are identical in content.

We determine that revocation of the antidumping duty order on iron castings from Brazil would likely lead to continuation or recurrence of dumping at the following weighted-average percentage margins:

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

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

On September 4, 1996, the Department published in the Federal Register an amended final determination and antidumping duty order on large newspaper printing presses and components thereof, whether assembled or unassembled, from Japan (LNPPs) (61 FR 46621). One of the producer/exporters covered by the order was TKS. Its rate from the less-than-fair-value investigation was 56.28 percent. The Department conducted administrative reviews of TKS for the following periods: September 1, 1997 - August 31, 1998, September 1, 1998 - August 31, 1999, and September 1, 1999 - August 31, 2000. The administrative review for the 2000-2001 review period was rescinded. A zero margin was found for TKS in the 1997-1998, 1998-1999, and 1999-2000 review periods. Effective January 16, 2002, the antidumping duty order was revoked with respect to TKS (Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan: Final Results of Antidumping Duty Administrative Review and Revocation in Part, 67 FR 2190, (January 16, 2002)) based on the three consecutive reviews resulting in zero dumping margins (see 19 CFR 351.222(b)). On February 25, 2002, the Department revoked the antidumping duty order under a five-year sunset review pursuant to section 751(c)(3)(A) of the Tariff Act of 1930, as amended (the Act) (Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, from Japan (A-588-837) and Germany (A-428-821): Notice of Final Results of Five-Year Sunset Reviews and Revocation of Antidumping Duty Orders, 67 FR 8522 (February 25, 2002)).

The products covered by this changed circumstances review are large newspaper printing presses, including press systems, press additions and press components, whether assembled or unassembled, whether complete or incomplete, that are capable of printing or otherwise manipulating a roll of paper more than two pages across. A page is defined as a newspaper broadsheet page in which the lines of type are printed perpendicular to the running of the direction of the paper or a newspaper tabloid page with lines of type parallel to the running of the direction of the paper.

In addition to press systems, the scope of the review includes the five press system components. They are: (1) A printing unit, which is any component that prints in monocolor, spot color and/or process (full) color; (2) a reel tension paster (RTP), which is any component that feeds a roll of paper more than two newspaper broadsheet pages in width into a subject printing unit; (3) a folder, which is a module or combination of modules capable of cutting, folding, and/or delivering the paper from a roll or rolls of newspaper broadsheet paper more than two pages in width into a newspaper format; (4) conveyance and access apparatus capable of manipulating a roll of paper more than two newspaper broadsheet pages across through the production process and which provides structural support and access; and (5) a computerized control system, which is any computer equipment and/or software designed specifically to control, monitor, adjust, and coordinate the functions and operations of large newspaper printing presses or press components.

A press addition is comprised of a union of one or more of the press components defined above and the equipment necessary to integrate such components into an existing press system.

Because of their size, large newspaper printing press systems, press additions, and press components are typically shipped either partially assembled or unassembled, complete or incomplete, and are assembled and/or completed prior to and/or during the installation process in the United States. Any of the five components, or collection of components, the use of which is to fulfill a contract for large newspaper printing press systems, press additions, or press components, regardless of degree of assembly and/or degree of combination with non-subject elements before or after importation, is included in the scope of this review. Also included in the scope are elements of a LNPP system, addition or component, which taken altogether, constitute at least 50 percent of the cost of manufacture of any of the five major LNPP components of which they are a part.

For purposes of the review, the following definitions apply irrespective of any different definition that may be found in customs rulings, U.S. Customs law or the Harmonized Tariff Schedule of the United States (HTSUS): (1) the term “unassembled” means fully or partially unassembled or disassembled; and (2) the term “incomplete” means lacking one or more elements with which the LNPP is intended to be equipped in order to fulfill a contract for a LNPP system, addition or component.

This scope does not cover spare or replacement parts. Spare or replacement parts imported pursuant to a LNPP contract, which are not integral to the original start-up and operation of the LNPP, and are separately identified and valued in a LNPP contract, whether or not shipped in combination with covered merchandise, are excluded from the scope of this review. Used presses are also not subject to this scope. Used presses are those that have been previously sold in an arm's-length transaction to a purchaser that used them to produce newspapers in the ordinary course of business.

Also excluded from the scope, in accordance with the Department's determination in a previous changed circumstances review of the antidumping duty order which resulted in the partial revocation of the order with respect to certain merchandise, are elements and components of LNPP systems, and additions thereto, which feature a 22-inch cut-off, 50-inch web width and a rated speed no greater than 75,000 copies per hour. See Large Newspaper Printing Presses Components Thereof, Whether Assembled or Unassembled, from Japan: Final Results of Changed Circumstances Antidumping Duty Administrative Review and Intent to Revoke Antidumping Duty Order, In Part, 64 FR 72315 (Dec. 27, 1999). In addition to the specifications set out in this paragraph, all of which must be met in order for the product to be excluded from the scope of the review, the product must also meet all of the specifications detailed in the five numbered sections following this paragraph. If one or more of these criteria is not fulfilled, the product is not excluded from the scope of the review.

Further, this review covers all current and future printing technologies capable of printing newspapers, including, but not limited to, lithographic (offset or direct), flexographic, and letterpress systems. The products covered by this review are imported into the United States under subheadings 8443.11.10, 8443.11.50, 8443.30.00, 8443.59.50, 8443.60.00, and 8443.90.50 of the HTSUS. Large newspaper printing presses may also enter under HTSUS subheadings 8443.21.00 and 8443.40.00. Large newspaper printing press computerized control systems may enter under HTSUS subheadings 8471.49.10, 8471.49.21, 8471.49.26, 8471.50.40, 8471.50.80, and 8537.10.90. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of the review is dispositive.

Pursuant to section 751(b)(1) of the Act, the Department is self-initiating a changed circumstances review based upon information contained in a recent federal court decision, Goss International Corp. v. Tokyo Kikai Seisakusho, Ltd., 321 F.Supp.2d 1039 (N.D. Iowa 2004) (Goss Int'l). See Elkem Metals Co. v. United States, 193 F. Supp. 2d 1314, 1321 (CIT 2002). In the Goss Int'l proceeding, evidence was presented demonstrating that TKS provided false information regarding its sales to the Dallas Morning News (DMN), the subject of the Department's 1997-1998 review. Specifically,

The jury further heard evidence at trial that TKS agreed to a fraudulent price increase and secret $2.2 million rebate to keep the DMN from purchasing the two towers {the sale under the 97-98 administrative review} from Goss in 1996. To make it appear to Goss that the 1996 sale was not dumped, TKS and the DMN agreed to increase the price on paper to $7.4 million. In exchange, TKS and the DMN agreed that TKS would secretly rebate $2.2 million to the DMN through a combination of $1 million in cash and a promise of $1.2 million in free digital ink pumps or credit to be delivered in the future.

TKS and its counsel engaged in a concerted effort to conceal the secret rebates * * *. {TKS's counsel} told TKS that 'there should be no apparent linkage between {the digital ink pumps'} give-away and the towers' price,' and urged TKS (USA) to falsify its business records. * * * There was also evidence presented at trial that TKS and its counsel attempted to destroy documents to conceal the secret rebates. See Goss Int'l 321 F. Supp. 2d at 1045.

The final results of the 1997-1998 administrative review were a factor in the Department's decisions to revoke TKS from the antidumping duty order, as well as to sunset the order. (See Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, from Japan: Final Results of Antidumping Duty Administrative Review and Partial Rescission of Administrative Reviews, 65 FR 7492 (February 15, 2000). We will place on the record of this review the Court decision, Goss Int'l, as well as a number of public documents we obtained from the court record of Goss Int'l.

Interested parties may submit comments on the above-referenced information and the actions the Department should take not later than 30 days after publication of this notice. Any responses to those comments must be submitted not later than seven days following submission of the comments. All written comments must be submitted in accordance with 19 CFR 351.303 (2004), and must be served on all interested parties on the Department's service list in accordance with 19 CFR 351.303(f) (2004).

The Department will publish in the Federal Register a notice of preliminary results of changed circumstances review, in accordance with 19 CFR 351.221(c)(3)(i) (2004), which will set forth the factual and legal conclusions upon which its preliminary results are based, and a description of any action proposed based on those results. The Department will afford the interested parties the opportunity to comment prior to issuing its final results of review, in accordance with 19 CFR 351.216(e) (2004), which will be published in the Federal Register.

This notice is in accordance with sections 751(b)(1) of the Act, and 19 CFR 351.216 and 351.221(c)(3)(i).

On March 7, 2005, the Department published the preliminary results of the administrative review of the antidumping duty order on low enriched uranium from France for the period February 1, 2003 through January 31, 2004. See Low Enriched Uranium from France: Preliminary Results of Antidumping Duty Administrative Review (70 FR 10957). The current deadline for the final results of this review is July 7, 2005.

Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act) requires the Department of Commerce (the Department) to issue the final results in an administrative review within 120 days after the date on which the preliminary results were published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the final results to 180 days from the date of publication of the preliminary results. The Department finds that it is not practicable to complete the review within the original time frame due to the complex nature of the case and because the Department is seeking clarification on certain issues (supplemental questionnaires were issued on March 8, 2005 and March 18, 2005, after the preliminary results were issued). In order to provide the Department sufficient time to review the submissions, conduct verification, and thoroughly analyze all information on the record, completion of this review is not practicable within the original time limit. Consequently, in accordance with section 751(a)(3)(A) of the Act and section 351.213(h)(2) of the Department's regulations, the Department is extending the time limit for the completion of the final results of the review until no later than September 6, 2005, which is the next business day after 180 days from the publication of the preliminary results. This notice is issued and published in accordance with section 751(a)(3)(A) of the Act.

On August 11, 1995 the Department published the antidumping duty order on oil country tubular goods (OCTG) from Argentina. See Antidumping Duty Order: Oil Country Tubular Goods from Argentina, 60 FR 41055 (August 11, 1995). On August 3, 2004 the Department published a notice of opportunity to request a review of this order. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 69 FR 46496 (August 3, 2004). On August 31, 2004, in accordance with 19 CFR 351.213(b)(1), the Department received a timely and properly filed request from United States Steel Corporation, a petitioner in the original investigation, for a review of the imports by producer Siderca S.A.I.C.

On September 22, 2004, the Department published a notice of initiation of this administrative review covering the period August 1, 2003 through July 31, 2004. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 69 FR 56745 (September 22, 2004). The preliminary results of this review are currently due no later than May 3, 2005.

Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Tariff Act), the Department shall issue preliminary results in an administrative review of an antidumping duty order within 245 days after the last day of the anniversary month of the date of publication of the order for which a review is requested, and the final results within 120 days after the date on which the preliminary results are published. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Tariff Act allows the Department to extend these deadlines to a maximum of 365 days and 180 days respectively.

The Department finds that it is not practicable to complete the preliminary results in the administrative review of OCTG from Argentina within the originally anticipated time limit (i.e., by May 3, 2005) because significant questions have arisen regarding whether or not Siderca had any entries of subject merchandise for consumption during the period of review. As a result, the Department needs additional time in order to obtain and analyze relevant documents from U.S. Customs and Border Protection. Therefore, the Department is extending the time limit for completion of the preliminary results by 70 days until no later than July 12, 2005, in accordance with section 751(a)(3)(A) of the Tariff Act. The final results continue to be due 120 days after the publication of the preliminary results.

This notice is published in accordance with section 751(a)(1) and 777(i)(1) of the Tariff Act.

On August 11, 1995, the Department published the antidumping duty order on OCTG from Mexico. See Antidumping Duty Order: Oil Country Tubular Goods From Mexico, 60 FR 41056 (August 11, 1995) (AD Order). On August 3, 2004, the Department published the opportunity to request administrative review of, inter alia, OCTG from Mexico for the period August 1, 2003, through July 31, 2004. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 69 FR 46496 (August 3, 2004).

In accordance with 19 CFR 351.213(b)(2), on August 31, 2004, United States Steel Corporation requested that we conduct an administrative review of the sales of subject merchandise of Tamsa and Hylsa. On September 22, 2004, the Department published in the Federal Register a notice of initiation of this antidumping duty administrative review covering the period August 1, 2003, through July 31, 2004. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 69 FR 183 (September 22, 2004).

On October 6, 2004, the Department issued its antidumping duty questionnaire to Hylsa and Tamsa. On October 25, 2004, Tamsa submitted a no-shipment certification letter to the Department explaining that it had no sales of subject merchandise during the POR and requested a rescission of the administrative review with respect to Tamsa. See Partial Rescission of Administrative Review below for a discussion of this issue.

Hylsa submitted its response to section A of the Department's questionnaire on November 9, 2004, and its response to section C on November 23, 2004. In its section A response, Hylsa informed the Department that it had no viable home market or third country sales to use as normal value and was therefore reporting constructed value data. The Department issued a supplemental sections A and C questionnaire to Hylsa on December 29, 2004. Hylsa submitted its response to the Department's sections A and C questionnaire on January 19, 2005. The Department issued a second supplemental sections A and C questionnaire on February 18, 2005 and on February 25, 2005 Hylsa submitted its response. The Department issued a third supplemental questionnaire on April 13, 2005 and on April 14, 2005 Hylsa submitted its response.

Because Hylsa did not have home market or third country sales of subject merchandise during the POR, Hylsa submitted a section D response on December 6, 2004. We issued a supplemental questionnaire regarding Hylsa's response to section D on March 9, 2005 and on April 4, 2005 Hylsa submitted its response.

The POR is August 1, 2003, through July 31, 2004.

The merchandise covered by this order are oil country tubular goods (OCTG), hollow steel products of circular cross-section, including oil well casing and tubing of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, whether or not conforming to American Petroleum Institute (API) or non-API specifications, whether finished or unfinished (including green tubes and limited-service OCTG products). This scope does not cover casing or tubing pipe containing 10.5 percent or more of chromium, or drill pipe. The OCTG subject to this order are currently classified in the HTSUS under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.30.10, 7304.29.30.20, 7304.29.30.30, 7304.29.30.40, 7304.29.30.50, 7304.29.30.60, 7304.29.30.80, 7304.29.40.10, 7304.29.40.20, 7304.29.40.30, 7304.29.40.40, 7304.29.40.50, 7304.29.40.60, 7304.29.40.80, 7304.29.50.15, 7304.29.50.30, 7304.29.50.45, 7304.29.50.60, 7304.29.50.75, 7304.29.60.15, 7304.29.60.30, 7304.29.60.45, 7304.29.60.60, 7304.29.60.75, 7305.20.20.00, 7305.20.40.00, 7305.20.60.00, 7305.20.80.00, 7306.20.10.30, 7306.20.10.90, 7306.20.20.00, 7306.20.30.00, 7306.20.40.00, 7306.20.60.10, 7306.20.60.50, 7306.20.80.10, and 7306.20.80.50. The Department has determined that couplings, and coupling stock, are not within the scope of the antidumping order on OCTG from Mexico. See Letter to Interested Parties; Final Affirmative Scope Decision, August 27, 1998. The HTSUS subheadings are provided for convenience and customs purposes. Our written description of the scope of this order is dispositive.

In response to our October 6, 2004 original questionnaire, Tamsa submitted an October 25, 2004 letter claiming they made no exports of the subject merchandise during the POR. We examined CBP data to confirm that Tamsa was not listed as a manufacturer or exporter of the subject merchandise on entries during the POR. We requested and received from CPB entry documents that showed Tamsa was the manufacturer of the entered merchandise. After reviewing the information, we determined that the entries in question were exported from third countries without Tamsa's knowledge and properly identified Mexico as the country of origin.

In addition, there is no information on the record to indicate that Tamsa had U.S. sales or exports of subject merchandise during the POR. As a result, we find that Tamsa made no entries, exports, or sales of the subject merchandise during the POR that are subject to the administrative review. Therefore, in accordance with 19 CFR 351.213(d)(3), we are preliminarily rescinding our review with respect to Tamsa.

Because Hylsa had no sales of identical or similar merchandise in the home market or any third country comparison market during the POR, we compared U.S. sales to CV in accordance with section 773(a)(4) of the Act.

To determine whether Hylsa made sales of OCTG to the United States at less than fair value, we compared EP to NV, as described in the “Export Price” and “Normal Value” sections of this notice. Because Hylsa had no sales of subject merchandise either in the home market or to third countries during the POR, in accordance with section 773(a)(4) of the Act, we compared the EP of U.S. transactions falling within the period of review to CV.

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

For sales to the United States, we have used EP in accordance with section 772(a) of the Act because the subject merchandise was sold directly to an unaffiliated purchaser prior to importation.

We calculated EP based on the prices charged to the first unaffiliated customer in the United States. We used the date of invoice as the date of sale. We based EP on the packed delivered duty paid prices to the first unaffiliated purchasers in the United States. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Tariff Act, including: foreign inland freight, foreign brokerage and handling, U.S. inland freight and U.S. brokerage and handling.

Hylsa reported that it had no viable home or third country market during the POR. Therefore, in accordance with section 773(a)(4) of the Act, we based NV for Hylsa on CV. In accordance with section 773(e)(1) of the Act, we calculated CV based on the sum of the costs of materials, labor, overhead, selling, general and administrative (SG&A), profit, interest expenses, and U.S. packing costs. Section 773(e)(2)(A) states that SG&A and profit are to be based on the actual amounts incurred in connection with sales of a foreign like product. In the event such data is not available, section 773(e)(2)(B) of the Act sets forth three alternatives for computing profit and SG&A without establishing a hierarchy or preference among the alternative methods. The alternative methods are: (1) Calculate SG&A and profit incurred by the producer based on the sale of merchandise of the same general type as the exports in question; (2) average SG&A and profit of other producers of the foreign like product for sales in the home market; or (3) any other reasonable method, capped by the amount normally realized on sales in the foreign country of the general category of the products. In addition, the Statement of Administrative Action (“SAA”) states that, if the Department does not have the data to determine amounts for profit under alternatives one and two, or a profit cap under alternative three, it still may apply alternative three (without the cap) on the basis of the “facts available.” SAA at 841.

In this case, because Hylsa did not have a viable home market or third country market for this product, we based Hylsa's profit and indirect selling expenses on the following methodology. In accordance with section 773(e)(2)(B)(iii) of the Act, we calculated indirect selling expenses incurred and profit realized by the producer based on the sale of merchandise of the same general types as the exports in question. Specifically, we based our profit calculations and indirect selling expenses on the income statement of Hylsa's tubular products division, a general pipe division that produces OCTG and like products. We calculated a CV profit using Hylsa's tubular division financial statements for 2003 (i.e., tubular division profit 2003 divided by tubular division 2003 cost of goods sold). We deducted packing expenses allocated to Hylsa's tubular products division from the COGS denominator when we calculated CV profit.

For the preliminary results we recalculated Hylsa's SG&A expense by deducting packing expenses from the cost of goods sold denominator. We used the financial statements of Alfa, S.A. de C.V., Hylsa's parent company, to calculate financial expenses. See Analysis Memorandum from Stephen Bailey to the File and Accounting Cost Memorandum from Margaret Pusey to the File, both dated May 3, 2005, for further discussion.

There were no allegations of below-cost sales for Hylsa during this POR. Consequently, we did not initiate a cost of production (COP) analysis for Hylsa.

For price-to-CV comparisons, we made circumstance-of-sale adjustments by deducting from CV the weighted-average home market indirect selling expenses and adding U.S. direct selling expenses (i.e., imputed credit, warranty, and other direct selling expenses) in accordance with section 773(a)(8) of the Act and section 19 CFR 351.401(c). For computing credit expenses, it is the Department's normal practice to use an interest rate applicable to loans in the same currency as that in which the sales are denominated (see, e.g., Analysis for the preliminary determination in the investigation of stainless steel plate in coils from Korea--Pohang Iron & Steel Company, 63 FR 59535 (November 4, 1998)). Because Hylsa had no short-term borrowings in U.S. dollars, the credit expense for Hylsa's U.S. sales was calculated using the average U.S. prime rate during the POR. See Hylsa's Section C response at exhibit 7.

We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, 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 our review, we preliminarily find the weighted-average dumping margin for the period August 1, 2003, through July 31, 2004, to be as follows:

The Department will disclose calculations performed in connection with these preliminary results of review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Pursuant to section 351.309 of the Department's regulations, interested parties may submit written comments in response to these preliminary results. Unless extended by the Department, case briefs are to be submitted within 30 days after the date of publication of this notice, and rebuttal briefs, limited to arguments raised in case briefs, are to be submitted no later than five days after the time limit for filing case briefs. Parties submitting arguments in this proceeding are requested to submit with the argument: (1) a statement of the issue, (2) a brief summary of the argument, and (3) a table of authorities. Case and rebuttal briefs and comments must be served on interested parties in accordance with section 351.303(f) of the Department's regulations.

Also, an interested party may request a hearing within 30 days of the date of publication of this notice. See section 351.310(c) of the Department's regulations. Unless otherwise specified, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs, or the first business day thereafter. The Department will issue the final results of this administrative review, including the results of its analysis of the issues raised in any briefs or comments at a hearing, within 120 days of publication of these preliminary results.Assessment Rates

The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Pursuant to section 351.212(b) of the Department's regulations, the Department calculates an assessment rate for each importer of the subject merchandise for each respondent. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of review.

The following deposit requirements will be effective upon completion of the final results of this administrative review 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 this administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate will be the rate established in the final results of this review; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will be the company-specific rate established for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the 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 subject merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this review, any previous reviews, or the LTFV investigation, the cash deposit rate will be 23.79 percent, the “all others” rate established in the LTFV investigation. See AD Order, 60 FR at 41056. These deposit rates, when imposed, shall remain in effect until publication of the final results of the next administrative review.

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

We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

On October 1, 2004, the Department initiated a sunset review of the antidumping duty order of potassium permanganate from the PRC. See Initiation of Five-year Sunset Review, 69 FR 58890 (October 1, 2004). The Department received a Notice of Intent to Participate from a domestic interested party, Carus Chemical Company (“Carus”), within the deadline specified in section 351.218(d)(1)(i) of the Department's regulations. Carus claimed interested party status as a domestic producer of the subject merchandise as defined in section 771(9)(C) of the Act. On May 3, 2004, the Department received a complete substantive response from Carus within the deadline specified in section 351.218(d)(3)(i) of the Department's regulations. The Department determined that the respondent interested party response was inadequate. As a result, pursuant to section 751(c)(3)(B) of the Act and section 351.218(e)(1)(ii)(C) of the Department's regulations, the Department conducted an expedited sunset review of this antidumping duty order.

Imports covered by this order are shipments of potassium permanganate, an inorganic chemical produced in free-flowing, technical, and pharmaceutical grades. Potassium permanganate is currently classifiable under item 2841.61.00 of the Harmonized Tariff Schedule (HTS). The HTS item numbers are provided for convenience and customs purposes. The written description remains dispositive.

All issues raised in this case are addressed in the “Issues and Decision Memorandum” (“Decision Memorandum”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to Joseph A. Spetrini, Acting Assistant Secretary for Import Administration, dated May 2, 2005, which is hereby adopted by this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the order were revoked. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memorandum, which is on file in room B-099 of the main Department Building.

In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/frn, under the heading “May 2005”. The paper copy and electronic version of the Decision Memorandum are identical in content.

We determine that revocation of the antidumping duty order on potassium permanganate from the PRC would likely lead to continuation or recurrence of dumping at the following percentage weighted-average margin:

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

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

On August 10, 2000, the Department published an antidumping duty order on seamless pipe from Romania. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe From Romania, 65 FR 48963 (August 10, 2000). On August 3, 2004, the Department published a notice of opportunity to request an administrative review of this order. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 69 FR 46496. In accordance with 19 CFR 351.213(b)(2), on August 31, 2004, Silcotub requested that the Department conduct an administrative review. In addition, in accordance with 19 CFR 351.222(e), Silcotub requested that the Department revoke the order with regard to Silcotub, pursuant to 19 CFR 351.222(b)(2). Silcotub subsequently withdrew its request for review on December 20, 2004. On August 31, 2004, the petitioner requested a review of Silcotub. On September 22, 2004, the Department published a notice of initiation of administrative review of the antidumping duty order on seamless pipe from Romania, covering the period August 1, 2003, through July 31, 2004. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 69 FR 56745.

On October 19, 2004, the Department issued its questionnaire to Silcotub 1. Responses to sections A through C of the questionnaire were received in December 2004.

On February 11, 2005, we published the final results in the most recently completed review, in which we disregarded below-cost sales by Silcotub. See Notice of Final Results of Antidumping Duty Administrative Review and Final Determination Not To Revoke Order in Part: Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe From Romania, 70 FR 7237 (February 11, 2005) (Final Results) and Notice of Amended Final Results of Antidumping Duty Administrative Review: Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe From Romania, 70 FR 14648 (March 23, 2005) (Amended Final). Therefore, on February 14, 2005, in accordance with section 773(b)(2)(A)(ii) of the Tariff Act of 1930, as amended (the Act), we requested that Silcotub complete section D of our October 19, 2004, questionnaire. On March 4, 2005, Silcotub informed the Department that it was withdrawing its participation in the administrative review and it withdrew its business-proprietary information from the record of the review.

The products covered by the order are seamless carbon and alloy (other than stainless) steel standard, line, and pressure pipes and redraw hollows produced, or equivalent, to the ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and the API 5L specifications and meeting the physical parameters described below, regardless of application. The scope of the order also includes all products used in standard, line, or pressure pipe applications and meeting the physical parameters described below, regardless of specification. Specifically included within the scope of the order are seamless pipes and redraw hollows, less than or equal to 4.5 inches (114.3 mm) in outside diameter, regardless of wall-thickness, manufacturing process (hot finished or cold-drawn), end finish (plain end, beveled end, upset end, threaded, or threaded and coupled), or surface finish.

The seamless pipes subject to the order are currently classifiable under the subheadings 7304.10.10.20, 7304.10.50.20, 7304.31.30.00, 7304.31.60.50, 7304.39.00.16, 7304.39.00.20, 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.51.50.05, 7304.51.50.60, 7304.59.60.00, 7304.59.80.10, 7304.59.80.15, 7304.59.80.20, and 7304.59.80.25 of the Harmonized Tariff Schedule of the United States (HTSUS).

Specifications, Characteristics, and Uses: Seamless pressure pipes are intended for the conveyance of water, steam, petrochemicals, chemicals, oil products, natural gas and other liquids and gases in industrial piping systems. They may carry these substances at elevated pressures and temperatures and may be subject to the application of external heat. Seamless carbon steel pressure pipe meeting the ASTM A-106 standard may be used in temperatures of up to 1000 degrees Fahrenheit, at various ASME code stress levels. Alloy pipes made to ASTM A-335 standard must be used if temperatures and stress levels exceed those allowed for ASTM A-106. Seamless pressure pipes sold in the United States are commonly produced to the ASTM A-106 standard.

Seamless standard pipes are most commonly produced to the ASTM A-53 specification and generally are not intended for high temperature service. They are intended for the low temperature and pressure conveyance of water, steam, natural gas, air and other liquids and gasses in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipes (depending on type and code) may carry liquids at elevated temperatures but must not exceed relevant ASME code requirements. If exceptionally low temperature uses or conditions are anticipated, standard pipe may be manufactured to ASTM

A-333 or ASTM A-334 specifications.

Seamless line pipes are intended for the conveyance of oil and natural gas or other fluids in pipe lines. Seamless line pipes are produced to the API 5L specification.

Seamless water well pipe (ASTM A-589) and seamless galvanized pipe for fire protection uses (ASTM A-795) are used for the conveyance of water.

Seamless pipes are commonly produced and certified to meet ASTM A-106, ASTM A-53, API 5L-B, and API 5L-X42 specifications. To avoid maintaining separate production runs and separate inventories, manufacturers typically triple or quadruple certify the pipes by meeting the metallurgical requirements and performing the required tests pursuant to the respective specifications. Since distributors sell the vast majority of this product, they can thereby maintain a single inventory to service all customers.

The primary application of ASTM A-106 pressure pipes and triple or quadruple certified pipes is use in pressure piping systems by refineries, petrochemical plants, and chemical plants. Other applications are in power generation plants (electrical-fossil fuel or nuclear), and in some oil field uses (on shore and off shore) such as for separator lines, gathering lines and metering runs. A minor application of this product is for use as oil and gas distribution lines for commercial applications. These applications constitute the majority of the market for the subject seamless pipes. However, ASTM A-106 pipes may be used in some boiler applications.

Redraw hollows are any unfinished pipe or “hollow profiles” of carbon or alloy steel transformed by hot rolling or cold drawing/hydrostatic testing or other methods to enable the material to be sold under ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM

A-335, ASTM A-589, ASTM A-795, and API 5L specifications.

The scope of the order includes all seamless pipe meeting the physical parameters described above and produced to one of the specifications listed above, regardless of application, with the exception of the specific exclusions discussed below, and whether or not also certified to a non-covered specification. Standard, line, and pressure applications and the above-listed specifications are defining characteristics of the scope of the order. Therefore, seamless pipes meeting the physical description above, but not produced to the ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and API 5L specifications shall be covered if used in a standard, line, or pressure application, with the exception of the specific exclusions discussed below.

For example, there are certain other ASTM specifications of pipe which, because of overlapping characteristics, could potentially be used in ASTM A-106 applications. These specifications generally include ASTM A-161, ASTM A-192, ASTM A-210, ASTM A-252, ASTM A-501, ASTM A-523, ASTM A-524, and ASTM A-618. When such pipes are used in a standard, line, or pressure pipe application, with the exception of the specific exclusions discussed below, such products are covered by the scope of the order.

Specifically excluded from the scope of the order is boiler tubing and mechanical tubing, if such products are not produced to ASTM A-53, ASTM A-106, ASTM A-333, ASTM A-334, ASTM A-335, ASTM A-589, ASTM A-795, and API 5L specifications and are not used in standard, line, or pressure pipe applications. In addition, finished and unfinished OCTG are excluded from the scope of the order, if covered by the scope of another antidumping duty order from the same country. If not covered by such an OCTG order, finished and unfinished OCTG are included in this scope when used in standard, line or pressure applications.

With regard to the excluded products listed above, the Department will not instruct Customs and Border Protection (CBP) to require end-use certification until such time as the petitioner or other interested parties provide to the Department a reasonable basis to believe or suspect that the products are being used in a covered application. If such information is provided, we will require end-use certification only for the product(s) (or specification(s)) for which evidence is provided that such products are being used in covered applications as described above. For example, if, based on evidence provided by petitioner, we find a reasonable basis to believe or suspect that seamless pipe produced to the A-161 specification is being used in a standard, line or pressure application, we will require end-use certifications for imports of that specification. Normally we will require only the importer of record to certify to the end use of the imported merchandise. If it later proves necessary for adequate implementation, we may also require producers who export such products to the United States to provide such certification on invoices accompanying shipments to the United States.

Although the HTSUS subheadings are provided for convenience and CBP purposes, our written description of the merchandise subject to the scope of this order is dispositive.

Pursuant to sections 776(a)(1) and (2) of the Act, if necessary information is not available on the record or if an interested party or any other person (A) withholds information that has been requested by the administering authority, (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, (C) significantly impedes a proceeding under the antidumping statute, or (D) provides such information but the information cannot be verified as provided in section 782(i) of the Act, the administering authority shall use, subject to section 782(d) of the Act, the facts otherwise available in reaching the applicable determination. In this case, Silcotub's decision not to participate in the review constitutes a withholding of information requested by the Department, pursuant to section 776(a)(2)(A) of the Act (i.e., its business-proprietary sales and cost-of-production information), necessary for the Department to conduct an accurate antidumping analysis. Without Silcotub's business-proprietary sale-specific information and, in a review such as this where the Department has reasonable grounds to believe or suspect that sales of the foreign like product were made at prices at less than the cost of production (see Final Results), the Department is unable to determine the reliability of sales prices in the home market and whether they form an appropriate basis for determining normal value. As a result of Silcotub's March 4, 2005, withdrawal of its business-proprietary sales information and its failure to report its actual cost of production for the foreign like product and the constructed-value information for subject merchandise, the Department is unable to calculate an accurate dumping margin.

By withdrawing from the review and failing to provide the information requested, Silcotub has also impeded the review process because the Department has insufficient information upon which it can conduct its review. See section 776(a)(2)(C) of the Act. Therefore, the Department must resort to facts otherwise available in reaching the applicable determination. Absent a sufficient response on the record from the respondent, sections 782(d) and (e) do not apply.

Section 776(b) of the Act provides that, in selecting from among the facts otherwise available, the Department may use an inference adverse to the interests of a party that has failed to cooperate by not acting to the best of its ability to comply with a request for information (see also the Statement of Administrative Action (SAA), accompanying the Uruguay Round Agreements Act (URAA), H. Doc. No. 103-316 at 870). By refusing to provide its cost-of-production information and withdrawing its business-proprietary sales information, Silcotub has failed to cooperate to the best of its ability. Therefore, pursuant to section 776(b) of the Act, the Department has determined that an adverse inference is warranted with respect to Silcotub.

In selecting an AFA rate, the Department's practice has been to assign respondents which fail to cooperate with the Department the highest margin determined for any party in the less-than-fair-value (LTFV) investigation or in any administrative review. See Sigma Corp. v. United States, 117 F.3d 1401,1411 (Fed. Cir. 1997). As such, we have preliminarily assigned Silcotub an AFA rate of 15.15 percent which is the LTFV weighted-average margin calculated for Silcotub during the original investigation. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe from Romania, 65 FR 48963 (August 10, 2000).

Section 776(c) of the Act provides that, when the Department relies on the facts otherwise available and relies on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. The SAA clarifies that the final determination concerning the subject merchandise is “secondary information” and states that “corroborate” means to determine that the information used has probative value. See SAA at 870. To corroborate secondary information, the Department will examine, to the extent practicable, the reliability and relevance of the information to be used.

As discussed in Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, from Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 61 FR 57391, 57392 (November 6, 1996), to corroborate secondary information, the Department will examine, to the extent practicable, the reliability and relevance of the information used. Unlike other types of information, such as input costs or selling expenses, there are no independent sources from which the Department can derive calculated dumping margins; the only source for margins is administrative determinations. Thus, in an administrative review, if the Department chooses as AFA a calculated dumping margin from a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period. We also find that this rate, calculated from a prior segment of the proceeding, is relevant. The data upon which the Department relied in calculating the 15.15 rate in the LTFV investigation was that of Silcotub and Sota Communication Company. During the period of investigation, Silcotub produced the product which Sota Communication Company sold to the United States. Therefore, we examined for the LTFV investigation Silcotub's factor-of-production information in our calculation of the 15.15 percent rate. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe from Romania, 65 FR 5594 (February 4, 2000).

Furthermore, there is no information on the record that calls into question the validity of this rate. Therefore, we find that this rate is corroborated to the extent practicable. Also, we find that this rate is sufficiently high as to reasonably ensure that Silcotub does not obtain a more favorable result by failing to cooperate. Accordingly, we determine that the rate of 15.15 percent, the highest weighted-average margin determined for any firm during any segment of this proceeding, is in accordance with the requirements of section 776(c) of the Act.

In accordance with 19 CFR 351.222(e)(1), on August 31, 2004, Silcotub submitted a request that the Department revoke the order in part on seamless pipe from Romania with respect to its sales. We preliminarily determine that the request from Silcotub does not meet all of the criteria under 19 CFR 351.222(e)(1). In the immediately preceding review, Silcotub did not receive a zero or de minimis margin. See Amended Final. Therefore, Silcotub did not meet the requirement of selling the subject merchandise at not less than normal value for a period of three consecutive years. See 19 CFR 351.222(b)(1)(i)(A). Thus, Silcotub is not eligible for consideration for revocation, and we preliminarily determine not to revoke the order with respect to Silcotub's sales of seamless pipe to the United States.

As a result of our review, covering the period August 1, 2003, through July 31, 2004, we preliminarily determine the dumping margin for Silcotub to be as follows:

Any interested party may request a hearing within 30 days of the date of publication of this notice. Any hearing, if requested, will be held approximately 37 days after the publication of this notice. Issues raised in hearings will be limited to those raised in the case and rebuttal briefs. Interested parties may submit case briefs within 30 days of the date of publication of this notice. Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed not later than 35 days after the date of publication of this notice. Parties who submit case briefs or rebuttal briefs in this review are requested to submit with each argument (1) a statement of the issue, (2) a brief summary of the argument, and (3) a table of authorities. Parties are also requested to submit such arguments, and public versions thereof, with an electronic version on a diskette.

Upon publication of the final results of this review, the Department will instruct CBP to assess antidumping duties on all appropriate entries. Because we are applying AFA to all exports of subject merchandise produced or exported by Silcotub, we will instruct CBP to assess the final percentage margin against the entered customs values on all applicable entries during the period of review.

Further, the following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of seamless pipe from Romania entered, or withdrawn, from warehouse, for consumption on or after the publication date of the final results, as provided for by section 751(a)(2)(C) of the Act: (1) The cash-deposit rate for Silcotub will be the rate established in the final results of this review; (2) for previously reviewed or investigated companies not covered by this review, 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 by this review, a prior review, or the original 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; (4) if neither the exporter nor the manufacturer is a firm covered in this or any previous review conducted by the Department, the cash-deposit rate will be 13.06 percent, the all-others rate established in the prior administrative review. See Final Results at 70 FR 7239. These cash-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 to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

On August 3, 1995, the Department published the antidumping duty order on small diameter seamless carbon and alloy steel standard, line and pressure pipe (seamless line and pressure pipe) from Brazil. See Notice of Antidumping Duty Order: Small Diameter Seamless Carbon and Alloy Steel Standard, Line and Pressure Pipe from Brazil, 60 FR 39707 (August 3, 1995). On August 1, 2004, the Department published the opportunity to request administrative review of, inter alia, seamless line and pressure pipe from Brazil for the period August 1, 2003, through July 31, 2004. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 69 FR 46496 (August 3, 2004).

In accordance with 19 CFR 351.213(b)(1), on August 31, 2004, both VMB and United States Steel Corporation (US Steel), the petitioner, requested that we conduct an administrative review of VMB's sales of the subject merchandise. On September 22, 2004, the Department published in the Federal Register a notice of initiation of this antidumping duty administrative review covering the period August 1, 2003, through July 31, 2004. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 69 FR 56745 (September 22, 2004).

On October 2, 2004, the Department issued its antidumping duty questionnaire to VMB. VMB submitted its response to Section A of the questionnaire (Section A Response) on November 5, 2004, and the responses to Sections B and C (Sections B and C Response) on November 19, 2004. The Department issued a supplemental questionnaire for all three responses on January 13, 2005 and received VMB's response on February 7, 2005. VMB submitted its response to Section D of the questionnaire on December 6, 2004, along with supplemental information on December 9, 2004. On March 18, 2005, the Department issued a supplemental questionnaire regarding VMB's Section D response. On March 23, 2005, the Department issued a second supplemental questionnaire to VMB pertaining to VMB's February 7, 2004, supplemental response for Sections A, B, and C. The Department issued a third supplemental questionnaire to VMB regarding the company's reported home market interest revenue on March 31, 2005. VMB submitted its responses to these three supplemental questionnaires on April 11, 2005.

The period of review is August 1, 2003, through July 31, 2004.

The products covered by the order are seamless pipes produced to the ASTM A-335, ASTM A-106, ASTM A-53 and API 5L specifications and meeting the physical parameters described below, regardless of application. The scope of this order also includes all products used in standard, line, or pressure pipe applications and meeting the physical parameters below, regardless of specification.

For purposes of this order, seamless pipes are seamless carbon and alloy (other than stainless) steel pipes, of circular cross-section, not more than 114.3 mm (4.5 inches) in outside diameter, regardless of wall thickness, manufacturing process (hot-finished or cold-drawn), end finish (plain end, beveled end, upset end, threaded, or threaded and coupled), or surface finish. These pipes are commonly known as standard pipe, line pipe or pressure pipe, depending upon the application. They may also be used in structural applications. Pipes produced in non-standard wall thickness are commonly referred to as tubes.

The seamless pipes subject to this antidumping duty order are currently classifiable under subheadings 7304.10.10.20, 7304.10.50.20, 7304.31.60.50, 7304.39.00.16, 7304.39.00.20, 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.51.50.05, 7304.51.50.60, 7304.59.60.00, 7304.59.80.10, 7304.59.80.15, 7304.59.80.20, and 7304.59.80.25 of the Harmonized Tariff Schedule of the United States (HTSUS). The following information further defines the scope of this order, which covers pipes meeting the physical parameters described above:

Specifications, Characteristics and Uses: Seamless pressure pipes are intended for the conveyance of water, steam, petrochemicals, chemicals, oil products, natural gas, and other liquids and gasses in industrial piping systems. They may carry these substances at elevated pressures and temperatures and may be subject to the application of external heat. Seamless carbon steel pressure pipe meeting the ASTM standard A-106 may be used in temperatures of up to 1000 degrees Fahrenheit, at various American Society of Mechanical Engineers (“ASME”) code stress levels. Alloy pipes made to ASTM standard A-335 must be used if temperatures and stress levels exceed those allowed for A-106 and the ASME codes. Seamless pressure pipes sold in the United States are commonly produced to the ASTM A-106 standard.

Seamless standard pipes are most commonly produced to the ASTM A-53 specification and generally are not intended for high temperature service. They are intended for the low temperature and pressure conveyance of water, steam, natural gas, air and other liquids and gasses in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipes (depending on type and code) may carry liquids at elevated temperatures but must not exceed relevant ASME code requirements.

Seamless line pipes are intended for the conveyance of oil and natural gas or other fluids in pipelines. Seamless line pipes are produced to the API 5L specification.

Seamless pipes are commonly produced and certified to meet ASTM A-106, ASTM A-53 and API 5L specifications. Such triple certification of pipes is common because all pipes meeting the stringent ASTM A-106 specification necessarily meet the API 5L and ASTM A-53 specifications. Pipes meeting the API 5L specification necessarily meet the ASTM A-53 specification. However, pipes meeting the A-53 or API 5L specifications do not necessarily meet the A-106 specification. To avoid maintaining separate production runs and separate inventories, manufacturers triple-certify the pipes. Since distributors sell the vast majority of this product, they can thereby maintain a single inventory to service all customers.

The primary application of ASTM A-106 pressure pipes and triple-certified pipes is in pressure piping systems by refineries, petrochemical plants and chemical plants. Other applications are in power generation plants (electrical-fossil fuel or nuclear), and in some oil field uses (on shore and off shore) such as for separator lines, gathering lines and metering runs. A minor application of this product is for use as oil and gas distribution lines for commercial applications. These applications constitute the majority of the market for the subject seamless pipes. However, A-106 pipes may be used in some boiler applications.

The scope of this order includes all seamless pipe meeting the physical parameters described above and produced to one of the specifications listed above, regardless of application, and whether or not also certified to a non-covered specification. Standard, line and pressure applications and the above-listed specifications are defining characteristics of the scope of this order. Therefore, seamless pipes meeting the physical description above, but not produced to the ASTM A-335, ASTM A-106, ASTM A-53, or API 5L standards shall be covered if used in a standard, line or pressure application.

For example, there are certain other ASTM specifications of pipe which, because of overlapping characteristics, could potentially be used in A-106 applications. These specifications generally include A-162, A-192, A-210, A-333, and A-524. When such pipes are used in a standard, line or pressure pipe application, such products are covered by the scope of this order.

Specifically excluded from this order are boiler tubing and mechanical tubing, if such products are not produced to ASTM A-335, ASTM A-106, ASTM A-53 or API 5L specifications and are not used in standard, line or pressure applications. In addition, finished and unfinished oil country tubular goods (“OCTG'') are excluded from the scope of this order, if covered by the scope of another antidumping duty order from the same country. If not covered by such an OCTG order, finished and unfinished OCTG are included in this scope when used in standard, line or pressure applications. Finally, also excluded from this order are redraw hollows for cold-drawing when used in the production of cold-drawn pipe or tube.

Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this order is dispositive.

To determine whether VMB made sales of seamless standard, line and pressure pipe to the United States at less than fair value, we compared the CEP to the NV, as described in the “Constructed Export Price” and “Normal Value” sections of this notice, below. In accordance with section 777A(d)(2) of the Act, we compared the CEPs of individual U.S. transactions to monthly weighted-average NVs.

In accordance with section 771(16) of the Act, we considered all products produced by VMB covered by the descriptions in the “Scope of the Order” section of this notice to be foreign like products for the purpose of determining appropriate product comparisons to VMB's U.S. sales of the subject merchandise.

We have relied on the following six criteria to match U.S. sales of the subject merchandise to sales in Brazil of the foreign like product: product specification, manufacturing process (cold-finished or hot-rolled), outside diameter, schedule, surface finish and end finish.

Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics and reporting instructions listed in the Department's October 2, 2004, questionnaire.

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

In the instant review, VMB sold subject merchandise through an affiliated company, Vallourec & Mannesmann Tubes Corporation (VM Corp.) of Houston, Texas. VMB reported all of its U.S. sales of subject merchandise as CEP transactions. After reviewing the evidence on the record of this review, we have preliminarily determined that VMB's transactions are classified properly as CEP sales because these sales occurred in the United States and were made through its U.S. affiliate to an unaffiliated buyer. Such a determination is consistent with section 772(b) of the Act and the U.S. Court of Appeals for the Federal Circuit's decision in AK Steel Corp. et al. v. United States, 226 F.3d 1361, 1374 (Fed. Cir. 2000) (AK Steel). In AK Steel, the Court of Appeals examined the definitions of EP and CEP, noting “the plain meaning of the language enacted by Congress in 1994, focuses on where the sale takes place and whether the foreign producer or exporter and the U.S. importer are affiliated, making these two factors dispositive of the choice between the two classifications.” AK Steel at 1369. The court declared, “... the critical differences between EP and CEP sales are whether the sale or transaction takes place inside or outside the United States and whether it is made by an affiliate,” and noted the phrase “outside the United States” had been added to the 1994 statutory definition of EP. AK Steel at 1368-70. Thus, the classification of a sale as either EP or CEP depends upon where the contract for sale was concluded (i.e., in or outside the United States) and whether the foreign producer or exporter is affiliated with the U.S. importer.

On October 1, 2004, the Department initiated a sunset review of the AD order on solid urea from the Russian Federation pursuant to section 751(c) of the Act. See Initiation of Five-year (Sunset) Reviews, 69 FR 58890 (October 1, 2004). The Department received a Notice of Intent to Participate from the following domestic interested parties: the Ad Hoc Committee of Domestic Nitrogen Producers, (consisting of CF Industries, Inc. and PCS Nitrogen Fertilizer, LP), and Agrium U.S., Inc. (collectively “the domestic interested parties”) within the deadline specified in section 351.218(d)(1)(i) of the Department's Regulations (“Sunset Regulations”). The domestic interested parties claimed interested party status under sections 771(9)(C) and (D) of the Act, as domestic manufacturers of urea or a coalition whose members are engaged in the production of urea in the United States. The Department received a complete substantive response collectively from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). The Department received inadequate substantive responses from the respondent parties.1 As a result, pursuant to section 751(c)(5)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited sunset review of this order.

Merchandise covered by this order is solid urea, a high-nitrogen content fertilizer which is produced by reacting ammonia with carbon dioxide. The product is currently classifiable under the Harmonized Tariff Schedules of the United States Annotated (“HTS”) item 3102.10.00.00. During previous reviews such merchandise was classified under item number 480.3000 of the Tariff Schedules of the United States. The HTS item number is provided for convenience and customs purposes. The written description remains dispositive as the scope of the product coverage.

All issues raised in this review are addressed in the Decision Memorandum accompanying this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the margins likely to prevail were the order revoked. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099, of the main Commerce building. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/frn, under the heading “May 2005.” The paper copy and electronic version of the Decision Memorandum are identical in content.

We determine that revocation of the antidumping duty order on solid urea from the Russian Federation would be likely to lead to continuation or recurrence of dumping at the rate listed below:

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

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

On October 1, 2004, the Department initiated a sunset review of the countervailing duty order on iron castings from Brazil pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). 1 The Department received a Notice of Intent to Participate on behalf of Deeter Foundry, Inc., East Jordan Iron Works, Inc., LeBaron Foundry, Inc., Leed Foundry, Inc., Municipal Castings, Inc., Neenah Foundry Company, Tyler Pipe Company, and U.S. Foundry & Manufacturing Co. (collectively, “domestic interested parties”), within the deadline specified in section 351.218(d)(1)(i) of the Department's regulations. Domestic interested parties claimed interested party status under section 771(9)(C) of the Act as U.S. producers of the subject merchandise.

We received a complete response from the domestic interested parties within the deadline specified in the Department's regulations under section 351.218(d)(3)(i). However, we did not receive responses from any respondent interested parties as required in section 351.218(d)(3)(i) of the Departments regulations. As a result of receiving no responses from respondent interested parties, the Department conducted an expedited sunset review pursuant to section 751(c)(3)(B) of the Act and section 351.218(e)(1)(ii)(C)(2) of the Department's regulations.

The merchandise covered by the countervailing duty order consists of certain heavy iron construction castings from Brazil, limited to manhole covers, rings, and frames, catch basin grates and frames, cleanout covers and frames used for drainage or access purposes for public utility, water and sanitary systems, classifiable as heavy castings under Harmonized Tariff Schedule (“HTS”) item number 7325.10.0010. The HTS item numbers are provided for convenience and customs purposes only. The written description remains dispositive.

All issues raised in this case are addressed in the “Issues and Decision Memorandum” (“Decision Memo”) from Ronald K. Lorentzen, Acting Director, Office of Policy, Import Administration, to Joseph A. Spetrini, Acting Assistant Secretary for Import Administration, dated May 2, 2005, which is hereby adopted by this notice. The issues discussed in the Decision Memo include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the order were revoked. Parties can find a complete discussion of all issues raised in this sunset review and the corresponding recommendations in this public memo, which is on file in room B-099 of the main Department Building.

In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov, under the heading “May 2005.” The paper copy and electronic version of the Decision Memo are identical in content.

We determine that revocation of the countervailing duty order on iron castings from Brazil would likely lead to continuation or recurrence of countervailable subsidies at the following percentage weighted-average percentage margins:

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

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

On August 31, 1992, the Department of Commerce (“the Department”) published in the Federal Register the countervailing duty orders on pure magnesium and alloy magnesium from Canada (see Final Affirmative Countervailing Duty Determinations: Pure Magnesium and Alloy Magnesium from Canada, 57 FR 39392 (“Magnesium Investigation”)). On August 3, 2004, the Department published a notice of “Opportunity to Request Administrative Review” of these countervailing duty orders (see Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 69 FR 46496). We received timely requests for review from Norsk Hydro Canada, Inc. (“NHCI”) and from the petitioner, U.S. Magnesium, LLC for reviews of NHCI and Magnola Metallurgy, Inc. (“Magnola”). On September 1, 2004, we received a request for review from Magnola. On September 7, 2004, we asked Magnola to explain the circumstances which led to its late filing. On September 10, 2004, Magnola responded to the Department's request and explained its circumstances. On September 16, 2004, the Department rejected Magnola's September 1, 2004, request for review, but the review with respect to Magnola continued based on the request of the petitioner. On September 22, 2004, we initiated these reviews covering shipments of subject merchandise from NHCI and Magnola (see Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 69 FR 56745).

On October 6, 2004, we issued countervailing duty questionnaires to NHCI, Magnola, the Government of Québec (“GOQ”), and the Government of Canada (“GOC”). We received questionnaire responses from GOQ on November 8, 2004, from GOC and Magnola on November 12, 2004, and from NHCI on December 22, 2004.

The products covered by these orders are shipments of pure and alloy magnesium from Canada. Pure magnesium contains at least 99.8 percent magnesium by weight and is sold in various slab and ingot forms and sizes. Magnesium alloys contain less than 99.8 percent magnesium by weight with magnesium being the largest metallic element in the alloy by weight, and are sold in various ingot and billet forms and sizes.

The pure and alloy magnesium subject to the orders is currently classifiable under items 8104.11.0000 and 8104.19.0000, respectively, of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the written descriptions of the merchandise subject to the orders are dispositive.

Secondary and granular magnesium are not included in the scope of these orders. Our reasons for excluding granular magnesium are summarized in Preliminary Determination of Sales at Less Than Fair Value: Pure and Alloy Magnesium From Canada, 57 FR 6094 (February 20, 1992).

The Tariff Act of 1930, as amended (the Act), requires that the Department of Commerce (the Department) make preliminary and final determinations during an administrative proceeding within specified time limits. See, e.g., section 751(a) of the Act, 19 U.S.C. § 1675(a). The Act does not address the treatment of deadlines falling on a weekend, federal holiday, or day on which the Department is otherwise closed, e.g., due to a weather emergency.

With respect to certain deadlines involving filings made with the Department, the agency's regulations clarify that where “the applicable time limit expires on a non-business day, the Secretary will accept documents that are filed on the next business day.” See 19 CFR 351.303(b); see, also, Dofasco, Inc. v. United States, 390 F.3d 1370, 1372 (Fed. Cir. 2004). With respect to deadlines for reaching administrative determinations, the Department's longstanding practice has been to apply a similar “next business day” rule, which recognizes the administrative reality that there are no employees present to make administrative determinations that fall due when the Department is closed. While this practice has never been challenged, the Department has concluded that it is appropriate to publicize this practice to interested parties.

The Department hereby clarifies that where a statutory deadline falls on a weekend, federal holiday, or any other day when the Department is closed, the Department will continue its longstanding practice of reaching our determination on the next business day. We find that this clarification is consistent with federal practice. See Fed. R. Civ. P. 6(a); Fed R. App. P. 26(a); see, also, Dofasco Inc., 390 F.3d at 1372.

The Department's regulations provide that the Secretary will publish in the Federal Register a list of scope rulings. See 19 CFR 351.225(o). Our most recent “Notice of Scope Rulings” was published on June 19, 2003. See 68 FR 36770. The instant notice covers all scope rulings and anticircumvention determinations completed by Import Administration between April 1, 2003, and December 31, 2004, inclusive. It also lists any scope or anticircumvention inquiries pending as of December 31, 2004. As described below, subsequent lists will follow after the close of each calendar quarter.

The National Marine Fisheries Service (NMFS) Northeast Region manages the Atlantic surf clam and ocean quahog fisheries of the Exclusive Economic Zone (EEZ) of the Northeastern United States through the Atlantic Surf Clam and Ocean Quahog Fishery Management Plan (FMP). The Mid-Atlantic Fishery Management Council prepared the FMP pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act). The regulations implementing the FMP are specified under 50 CFR part 648.70.

The recordkeeping and reporting requirements at § 648.70 and § 648.74 form the basis for this collection of information. NMFS Northeast Region requests information from Atlantic surf clam and ocean quahog individual transferable quota (ITQ) allocation holders in order to process and track requests from the allocation holders to transfer quota allocation to another entity. NMFS Northeast Region also requests information from Atlantic surf clam and ocean quahog permit holders in order to track and properly account for Atlantic surf clam and ocean quahog harvest that is shucked at sea. Because there is not a standard conversion factor for estimating unshucked product from shucked product, NMFS requires vessels that choose to shuck product at sea to carry on board the vessel a NMFS approved observer to certify the amount of Atlantic surf clam and ocean quahog harvested. This information, upon receipt, results in an increasingly more efficient and accurate database for management and monitoring of fisheries of the Northeastern U.S. EEZ.

Paper applications are used to process requests.

OMB Number: 0648-0240.

Form Number: None.

Type of Review: Regular submission.

Affected Public: Business or other for-profit organizations.

Estimated Number of Respondents: 600.

Estimated Time Per Response: 5 minutes for the application to transfer quota, and 30 minutes for the application to shuck surf clams and ocean quahogs at sea.

Estimated Total Annual Burden Hours: 51.

Estimated Total Annual Cost to Public: $230,400.

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

The purpose of the work session is to further develop documentation for the Chinook and Coho FRAM.

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

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

On February 10, 2005, notice was published in the Federal Register (70 FR 7082) that a request for a commercial/educational photography permit to take by harassment various cetacean and pinniped species had been submitted by the above-named individual. The requested permit has been issued under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.).

In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), a final determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

Documents may be reviewed in the following locations:

Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521;

Assistant Regional Administrator for Protected Resources, Northwest Region, NMFS, 7600 Sand Point Way NE, BIN C15700, Bldg. 1, Seattle, WA 98115-0700; phone (206)526-6150; fax (206)526-6426;

Assistant Regional Administrator for Protected Resources, Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907)586-7235; fax (907)586-7012;

Assistant Regional Administrator for Protected Resources, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; phone (562)980-4020; fax (562)980-4027;

Assistant Regional Administrator for Protected Resources, Pacific Islands Regional Office, NMFS, 1601 Kapiolani Blvd., Suite 1110, Honolulu, HI 96814-4700; phone (808)973-2935; fax (808)973-2941;

Assistant Regional Administrator for Protected Resources, Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298; phone (978)281-9328; fax (987)281-9394; and

Assistant Regional Administrator for Protected Resources, Southeast Region, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701, phone (727)824-5312; fax (727)824-5309.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

Authorization may be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and that the permissible methods of taking and requirements pertaining to the monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as:

Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization.

On March 30, 2005, NMFS received an application from UAF for the taking, by harassment, of several species of marine mammals incidental to conducting, with research funding from the National Science Foundation (NSF) and the Norwegian Petroleum Directorate (NPD), a marine seismic survey across the Arctic Ocean from northern Alaska to Svalbard during the period 5 August to 30 September 2005. The purpose of the proposed seismic study is to collect seismic reflection and refraction data that reveal the structure and stratigraphy of the upper crust of the Arctic Ocean. These data will assist in the determination of the history of ridges and plateaus that subdivide the Amerasian basin in the Arctic Ocean. Past studies have mapped the bottom of the Arctic Ocean, but data are needed to describe the boundaries and connections between the ridges and plateaus in the Amerasian basin and to study the stratigraphy of the smaller basins. This information will assist in preparing for future scientific drilling that is crucial to reconstructing the tectonic, magmatic, and paleoclimatic history of the Amerasian basin.

The geophysical survey will involve the United States Coast Guard (USCG) cutter Healy. The Healy will rendezvous with the Swedish icebreaker Oden near Alpha Ridge. The Oden will be working on a separate project, conducting an oceanographic section across the Arctic Ocean basin and will coordinate its timing to meet the Healy. The Oden will cut a path through the ice as necessary, leading the Healy for the remainder of the trans-ocean track past the North Pole and then on towards Svalbard. The two icebreakers working in tandem will optimize seismic data collection and safety through the heaviest multi-year ice.

The source vessel, the USCG icebreaker Healy, will use a portable Multi-Channel Seismic (MCS) system from the University of Bergen to conduct the seismic survey. The Healy will tow two different airgun configurations. The primary energy source will be two Generator guns (G. guns), each with a discharge volume of 250 in3 for a total volume of 500 in3. The secondary energy source will be a single Bolt airgun of 1200 in3 that will be used for deeper penetration over three ridges (the Alpha, Mendeleev, and Gakkel ridges).

The Healy will also tow a hydrophone streamer 100-150 m (328-492 ft) behind the ship, depending on ice conditions. The hydrophone streamer will be up to 300 m (984 ft) long. As the airguns are towed along the survey lines, the receiving system will receive the returning acoustic signals. In addition to the airguns, a multi-beam sonar and sub-bottom profiler will be used during the seismic profiling and continuously when underway.

The program will consist of a total of approximately 4060 km (2192 nautical miles (nm)) of surveys, not including transits when the airguns are not operating, plus scientific coring at nine locations. The seismic survey will commence >40 km (22 nm) north of Barrow, Alaska, and the seismic activities will be completed northwest of Svalbard, in Norwegian territorial waters. Water depths within the study area are 20 4000 m (66-13123 ft). Little more than 1 percent of the survey (approximately 48 km (26 nm)) will occur in water depths <100 m (328 ft), 5 percent of the survey (approximately 192 km (104 nm)) will be conducted in water 100 1000 m (328-3280 ft) deep, and most (94 percent) of the survey (approximately 3820 km (2063 nm)) will occur in water >1000 m (3280 ft). Additional seismic operations will be associated with airgun testing, start up, and repeat coverage of any areas where initial data quality is sub-standard.

Along with the airgun operations, additional acoustical systems will be operated during much of, or the entire, cruise. The ocean floor will be mapped with a multi-beam sonar, and a sub-bottom profiler will be used. These two systems are commonly operated simultaneously with an airgun system. An acoustic Doppler current profiler will also be used through the course of the project. A 12-kHz pinger will be used during the sea-bottom coring operations to monitor the depth of the corer relative to the ocean floor. A detailed description of the acoustic sources proposed for use during this survey can be found in the UAF application, which is available at: http://www.nmfs.noaa.gov/prot_res/PR1/ Small_Take/smalltake_info.htm#applications.

The coring operations constitute a separate project, which will be conducted in conjunction with the seismic study from the Healy. Seismic operations will be suspended while the USCG Healy is on site for coring at each of nine locations. Depending on water depth and the number of cores to be collected, the Healy may be at each site for between 8 and 36 hours.

The Healy has a length of 128 m (420 ft), a beam of 25 m (82 ft), and a full load draft of 8.9 m (29.2 ft). The Healy is a USCG icebreaker, capable of traveling at 5.6 km/h (3 knots) through 1.4 m (4.6 ft) of ice. A “Central Power Plant”, four Sultzer 12Z AU40S diesel generators, provides electric power for propulsion and ship's services through a 60 Hz, 3-phase common bus distribution system. Propulsion power is provided by two electric AC Synchronous, 11.2 MW drive motors, fed from the common bus through a Cycloconverter system, that turn two fixed-pitch, four-bladed propellers. The operation speed during seismic acquisition is expected to be approximately 6.5 km/h (3.5 knots). When not towing seismic survey gear or breaking ice, the Healy cruises at 22 km/h (12 knots) and has a maximum speed of 31.5 km/h (17 knots). She has a normal operating range of about 29,650 km (16,000 nm) at 23.2 km/hr (12.5 knots).

The Healy will also serve as the platform from which vessel-based marine mammal observers will watch for marine mammals before and during airgun operations. The characteristics of the Healy that make it suitable for visual monitoring are described in the monitoring section.

The University of Bergen's portable MCS system will be installed on the Healy for this cruise. The Healy will tow either two Sodera 250-in3 G. guns (for a total discharge volume of 500 in3) or a single 1200-in3 Bolt airgun, along with a streamer containing hydrophones, along predetermined lines. Seismic pulses will be emitted at intervals of 20 seconds (s) and recorded at a 2 millisecond (ms) sampling rate. The 20 s spacing corresponds to a shot interval of approximately 36 m (118 ft) at the typical cruise speed.

The two-G. gun-cluster configuration will be towed below a depressor bird at a depth between 7 and 20 m (23 and 66 ft), as close to the Healy's stern as possible to minimize ice interference (preferred depth is 8 to 10 m (26 to 29 ft)). The two airguns will be towed 1 m (3.3 ft) apart, separated by a spreader bar. The G. guns have a zero to peak (peak) source output of 236 dB re 1 microPascal-m (6.5 bar-m) and a peak-to-peak (pk-pk) level of 241 dB (11.7 bar-m). The dominant frequency components of these airguns are in the range of 0-150 Hz. For a one-gun source, the nominal source level represents the actual level that would be found about 1 m (3.3 ft) from the airgun. Actual levels experienced by any marine organism more than 1 m (3.3 ft) from the airguns will be significantly lower.

The single Bolt airgun will be towed below a depressor bird at a depth of 10 m (29 ft). This airgun has peak source output of 234 dB re 1 microPascal-m (5 bar-m) and a pk-pk level of 241 dB (11.7 bar-m). The dominant frequency components of these airguns are in the range of 8-40 Hz. Indicated source outputs are for sources at 5 m (16 ft) and for a filter bandwidth of approximately 0-250 Hz.

Received sound levels were modeled by L-DEO for single 1200 in3 Bolt airgun and for the one and two 250 in3 G. guns in relation to distance and direction from the gun. This publically available model does not allow for bottom interactions, and, thus, is most directly applicable to deep water. For deep water, where most of the present project is to occur, the L-DEO model has been shown to be precautionary, i.e., it tends to overestimate radii for 190, 180, etc., dB re 1 μPa rms (Tolstoy et al. 2004a,b). Based on the models, table 1 shows the distances from the planned sources where sound levels of 190, 180, and 160 dB re 1 microPa root-mean squared (rms) are predicted to be received. The rms pressure is an average over the pulse duration. This is the measure commonly used in studies of marine mammal reactions to airgun sounds, and in NMFS guidelines concerning levels above which “taking” might occur. The rms level of a seismic pulse is typically about 10 dB less than its peak level (Greene 1997; McCauley et al. 1998, 2000a).

For the two-G. gun source, the highest sound level measurable at any location in the water would be slightly less than the nominal source level because the actual source is a distributed source rather than a point source. However, the two guns would be only 1 m (3.3 ft) apart, so the non-point-source effect would be slight. For the single Bolt airgun, the source level represents the actual level that would be found about 1 m from the energy source. Actual levels experienced by any organism more than 1 m from either of the sources will be significantly lower.

The rms received levels that are used by NMFS as impact criteria for marine mammals are not directly comparable to the peak or peak-to-peak values normally used to characterize source levels of airguns. The measurement units used to describe airgun sources, i.e., peak or pk-pk decibels, are always higher than the rms decibels referred to in much of the biological literature. A measured received level of 160 decibels rms in the far field would typically correspond to a peak measurement of about 170 to 172 dB, and to a peak-to-peak measurement of about 176 to 178 decibels, as measured for the same pulse received at the same location (Greene 1997; McCauley et al. 1998, 2000a). The precise difference between rms and peak or pk-pk values for a given pulse depends on the frequency content and duration of the pulse, among other factors. However, the rms level is always lower than the peak or pk-pk level for an airgun-type source.

The depth at which the sound source is towed has a major impact on the maximum near-field output, and on the shape of its frequency spectrum. In this case, the source is expected to be towed at relatively deep depths of 7 to 20 m (23 to 66 ft).

Empirical data concerning the 190-, 180-, and 160-dB (rms) isopleths in deep and shallow water have been acquired for various airgun configurations based on measurements during the acoustic verification study conducted by L-DEO in the northern Gulf of Mexico from 27 May to 3 June 2003 (Tolstoy et al., 2004a, b). Those data demonstrated that L-DEO's model tends to overestimate the isopleth distances applied in deep water. During that study, empirical data were not obtained for either the 1200-in3 Bolt airgun or the G. guns that will be used during this survey. Although the results were limited, the calibration-study results showed that radii around the airguns where the received level would be 180 dB re 1 microPa (rms), the safety zone radius NMFS uses for cetaceans, (NMFS 2000), vary with water depth. Similar depth-related variation is likely in the 190 dB distances used for pinnipeds. Although sea turtle sightings are highly unlikely, the 180-dB distance will also be used as the safety radius for sea turtles, as required by NMFS in another recent seismic project (Smultea et al., 2005). The safety zones are used to trigger mitigation measures, which are described below.

The L-DEO model does not allow for bottom interactions, and thus is most directly applicable to deep water and to relatively short ranges. In intermediate-depth water a precautionary 1.5x factor will be applied to the values predicted by L-DEO's model. In shallow water, larger precautionary factors derived from the empirical shallow-water measurements will be applied. The proposed study area will occur mainly in water 1000 to 4000 m (3280 to 13123 ft) deep, with only approximately 1 percent of the survey lines in shallow (<100 m (328 ft)) water and 5 percent of the survey lines in intermediate water depths (100 1000 m (328-3280 ft)).

The empirical data indicate that, for deep water (>1000 m (3280 ft)), the L-DEO model tends to overestimate the received sound levels at a given distance (Tolstoy et al., 2004a,b). However, to be precautionary pending acquisition of additional empirical data, UAF has proposed using safety radii during airgun operations in deep water that correspond to the values predicted by L-DEO's model for deep water (Table 1). In deep water, the estimated 190 and 180 dB radii for two 250-in3 G. guns are 100 and 325 m (328 and 1067 ft), respectively. Those for one 1200-in3 Bolt airgun are 25 and 50 m (82 and 164 ft), respectively.

Empirical measurements were not conducted for intermediate depths (100 1000 m (328-3280 ft)). On the expectation that results would be somewhere between those from shallow and deep water, UAF has applied a 1.5x correction factor to the estimates provided by the model for deep water situations. This is the same factor that has been applied to the model estimates during L-DEO operations in intermediate-depth water from 2003 through early 2005. The estimated 190- and 180-dB radii in intermediate-depth water are 150 m (490 ft) and 500 m (1640 ft), respectively, for the two G. gun system and 38 and 75 m (125 and 246 ft), respectively, for the single Bolt airgun (Table 1).

Empirical measurements were not made for the sources that will be employed during the proposed survey operating in shallow water (<100 m (328 ft)). The empirical data on operations of two 105 in3 GI guns in shallow water showed that modeled values underestimated actual levels in shallow water at corresponding distances of 0.5 to 1.5 km (0.3 to 0.5 nm) by a factor of approximately 3x (Tolstoy et al., 2004b). Sound level measurements for the 2 GI guns were not available for distances <0.5 km (0.3 nm) from the source. The radii estimated here for two G. guns operating in shallow water are derived from L-DEO's deep water estimates, with the same adjustments for depth-related differences in sound propagation used for 2 GI guns in earlier applications (and approximately the same factors as used for L-DEO's 10-airgun array). Similarly, the factors for the single airguns are the same as those for a single GI gun in earlier applications. Thus, the estimated 190- and 180-dB radii in shallow water are 1500 and 2400 m (4921 and 7874 ft), respectively, for the two G. guns (Table 1). The corresponding radii for the single G. gun in shallow water are estimated to be 213 and 385 m (699 and 1263 ft), respectively. The sound radii for the single Bolt airgun in shallow water are estimated to be 313 m (1027 ft) for 190 dB and 370 m (1214 ft) for 180 dB.

Discussion of the characteristics of airgun pulses has been provided in the application and in previous Federal Register notices (see 69 FR 31792 (June 7, 2004) or 69 FR 34996 (June 23, 2004)). Reviewers are referred to those documents for additional information.

A detailed description of the Healy's track from north of Barrow, through the Arctic ocean to northwest of Svalbard and the associated marine mammals can be found in the UAF application and a number of documents referenced in the UAF application. A total of 17 cetacean species and 10 pinniped species may occur in the proposed study area. The marine mammals that occur in the proposed survey area belong to four taxonomic groups: odontocetes (toothed cetaceans, such as dolphins and sperm whales), mysticetes (baleen whales), pinnipeds (seals, sea lions, and walrus), and fissipeds (polar bear).

Odontocete whales include the sperm whale, northern bottlenose whale, beluga whale, narwhal, Atlantic white-beaked dolphin, Atlantic white-sided dolphin, killer whale, long-finned pilot whale, and harbor porpoise.

Mysticete whales include the North Atlantic right whale, bowhead whale, gray whale, humpback whale, minke whale, sei whale, fin whale, and blue whale.

Pinnipeds include the walrus, bearded seal, harbor seal, spotted seal, ringed seal, hooded seal, and harp seal.

The marine mammal species most likely to be encountered include four cetacean species (beluga whale, narwhal, gray whale, bowhead whale), five pinniped species (walrus, bearded seal, ringed seal, hooded seal, harp seal), and the polar bear. However, most of these will occur in low numbers and are most likely to be encountered within 100 km (54 n.mi) of shore. The most abundant marine mammal likely to be encountered throughout the cruise is the ringed seal. The most widely distributed marine mammals are expected to be the beluga, ringed seal, and polar bear.

About 13 additional cetacean species could occur in the project area, but are unlikely to be encountered along the proposed trackline. If encountered at all, those species would be found only near one end of the track, either near Svalbard or near Alaska. The following 12 species, if encountered at all, would be found close to Svalbard: sperm whale, northern bottlenose whale, long-finned pilot whale, Atlantic white-sided dolphin, Atlantic white-beaked dolphin, harbor porpoise, killer whale, North Atlantic right whale, humpback whale, minke whale, sei whale, fin whale, and blue whale. Two additional pinniped species, the harbor seal and spotted seal, are also unlikely to be encountered.

Although information on the walrus and polar bear are included here, they are managed by the U.S. Fish & Wildlife Service (USFWS) and are not the subject of this authorization. UAF will coordinate with the USFWS regarding the effects of project operations on walruses and polar bears.More detailed information on these species is contained in the UAF application (see ADDRESSES).

The effects of noise on marine mammals are highly variable, and can be categorized as follows (based on Richardson et al., 1995):

(1) The noise may be too weak to be heard at the location of the animal (i.e., lower than the prevailing ambient noise level, the hearing threshold of the animal at relevant frequencies, or both);

(2) The noise may be audible but not strong enough to elicit any overt behavioral response;

(3) The noise may elicit reactions of variable conspicuousness and variable relevance to the well being of the marine mammal; these can range from temporary alert responses to active avoidance reactions such as vacating an area at least until the noise event ceases;

(4) Upon repeated exposure, a marine mammal may exhibit diminishing responsiveness (habituation), or disturbance effects may persist; the latter is most likely with sounds that are highly variable in characteristics, infrequent and unpredictable in occurrence, and associated with situations that a marine mammal perceives as a threat;

(5) Any anthropogenic noise that is strong enough to be heard has the potential to reduce (mask) the ability of a marine mammal to hear natural sounds at similar frequencies, including calls from conspecifics, and underwater environmental sounds such as surf noise;

(6) If mammals remain in an area because it is important for feeding, breeding or some other biologically important purpose even though there is chronic exposure to noise, it is possible that there could be noise-induced physiological stress; this might in turn have negative effects on the well-being or reproduction of the animals involved; and

(7) Very strong sounds have the potential to cause temporary or permanent reduction in hearing sensitivity. In terrestrial mammals, and presumably marine mammals, received sound levels must far exceed the animal's hearing threshold for there to be any temporary threshold shift (TTS) in its hearing ability. For transient sounds, the sound level necessary to cause TTS is inversely related to the duration of the sound. Received sound levels must be even higher for there to be risk of permanent hearing impairment. In addition, intense acoustic or explosive events may cause trauma to tissues associated with organs vital for hearing, sound production, respiration and other functions. This trauma may include minor to severe hemorrhage.

The UAF application provides the following information on what is known about the effects on marine mammals of the types of seismic operations planned by UAF. The types of effects considered in here are (1) tolerance, (2) masking of natural sounds, (3) behavioral disturbance, and (4) potential hearing impairment and other non-auditory physical effects (Richardson et al., 1995). Because the airgun sources planned for use during the present project involve only one or two airguns, the effects are anticipated to be considerably less than would be the case with a large array. UAF and NMFS believe it is very unlikely that there would be any cases of temporary or permanent hearing impairment, or non-auditory physical effects. Also, behavioral disturbance is expected to be limited to animals that are at distances less than 3300 m (10827 ft) in deep water (94 percent of survey), 5000 m (16404 ft) in intermediate water depths (5 percent of survey), and 9700 m (31824 ft) in shallow water (1 percent of survey), where the received sound levels greater than160 dB are expected to be. This corresponds to the value NMFS uses for onset of Level B harassment due to impulse sounds. Additional discussion on effects on marine mammal species can be found in the UAF application.

Numerous studies (referenced in L-DEO, 2004) have shown that pulsed sounds from airguns are often readily detectable in the water at distances of many kilometers, but that marine mammals at distances more than a few kilometers from operating seismic vessels often show no apparent response. That is often true even in cases when the pulsed sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of that mammal group. However, most measurements of airgun sounds that have been reported concerned sounds from larger arrays of airguns, whose sounds would be detectable farther away than the ones that are planned to be used in the proposed survey. Although various baleen whales, toothed whales, and pinnipeds have been shown to react behaviorally to airgun pulses under some conditions, at other times all three types of mammals have shown no overt reactions. In general, pinnipeds and small odontocetes seem to be more tolerant of exposure to airgun pulses than are baleen whales. Given the low-energy airgun sources planned for use in this proposed project, marine mammals would be expected to tolerate being closer to these sources than would be the case for a larger airgun source typical of most seismic surveys.

Masking effects of pulsed sounds (even from large arrays of airguns) on marine mammal calls and other natural sounds are expected to be limited, although there are very few specific data of relevance. Some whales are known to continue calling in the presence of seismic pulses. Their calls can be heard between the seismic pulses (e.g., Richardson et al., 1986; McDonald et al., 1995; Greene et al., 1999; Nieukirk et al., 2004). Although there has been one report that sperm whales cease calling when exposed to pulses from a very distant seismic ship (Bowles et al., 1994), a more recent study reports that sperm whales off northern Norway continued calling in the presence of seismic pulses (Madsen et al., 2002). That has also been shown during recent work in the Gulf of Mexico (Tyack et al. 2003). Given that the airgun sources planned for use here involve only 1 or 2 airguns, there is even less potential for masking of baleen or sperm whale calls during the present study than in most seismic surveys. Masking effects of seismic pulses are expected to be negligible in the case of the odontocete cetaceans, given the intermittent nature of seismic pulses and the relatively low source level of the airgun configurations to be used here. Also, the sounds important to odontocetes are predominantly at much higher frequencies than are airgun sounds and would not be masked by the airguns.

Most of the energy in the sound pulses emitted by airguns is at low frequencies, with strongest spectrum levels below 200 Hz and considerably lower spectrum levels above 1000 Hz. These low frequencies are mainly used by mysticetes, but generally not by odontocetes or pinnipeds. An industrial sound source will reduce the effective communication or echolocation distance only if its frequency is close to that of the marine mammal's signal. If little or no overlap occurs between the frequencies of the industrial noise and the marine mammals, as in the case of many marine mammals relative to airgun sounds, communication and echolocation are not expected to be disrupted. Furthermore, the discontinuous nature of seismic pulses makes significant masking effects unlikely even for mysticetes.

A few cetaceans are known to increase the source levels of their calls in the presence of elevated sound levels, or possibly to shift their peak frequencies in response to strong sound signals (Dahlheim, 1987; Au, 1993; Lesage et al., 1999; Terhune, 1999; as reviewed in Richardson et al., 1995). These studies involved exposure to other types of anthropogenic sounds, not seismic pulses, and it is not known whether these types of responses ever occur upon exposure to seismic sounds. If so, these adaptations, along with directional hearing, pre-adaptation to tolerate some masking by natural sounds (Richardson et al., 1995) and the relatively low-power acoustic sources being used in this survey, would all reduce the possible adverse impacts of masking marine mammal vocalizations.

Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Not all behavioral disturbances rise to the level of Level B Harassment, which requires a disruption of behavioral patterns of biological importance. Exposure to sound alone may not constitute harassment or “taking” (NMFS 2001, p. 9293). Behavioral reactions of marine mammals to sound are difficult to predict. Reactions to sound, if any, depend on species, individual variation, state of maturity, experience, current activity, reproductive state, time of day, season, and many other factors. If a marine mammal does react to an underwater sound by changing its behavior or moving a small distance, the impacts of the change may not rise to the level of a disruption of a behavioral pattern. However, if a sound source would displace a marine mammal from an important feeding or breeding area, such a disturbance may constitute Level B harassment under the MMPA. In addition, effects that might not constitute Level B harassment may still result in significant displacement of sensitive species, such as bowhead whales, thereby affecting subsistence needs. Given the many uncertainties in predicting the quantity and types of impacts of noise on marine mammals, NMFS estimates the number of marine mammals that may be present within a particular distance of industrial activities or exposed to a particular level of industrial sound and uses these numbers as a proxy. With the possible exception of beaked whales, NMFS believes that this is a conservative approach and likely overestimates the numbers of marine mammals that may experience a disruption of a behavioral pattern.

The sound exposure criteria used to estimate how many marine mammals might be harassed behaviorally by the seismic survey are based on behavioral observations during studies of several species. However, information is lacking for many other species. Detailed studies have been conducted on humpback, gray, and bowhead whales, and on ringed seals. Less detailed data are available for some other species of baleen whales, sperm whales, small toothed whales, and sea otters. Most of those studies have been on behavioral reactions to much larger airgun sources than the airgun configurations planned for use in the present project. Thus, effects are expected to be limited to considerably smaller distances and shorter periods of exposure in the present project than in most of the previous work concerning marine mammal reactions to airguns. Detailed information on potential disturbance effects on baleen whales, toothed whales, and pinnipeds can be found in the UAF application.

Temporary or permanent hearing impairment is a possibility when marine mammals are exposed to very strong sounds, but there has been no specific documentation of this for marine mammals exposed to airgun pulses. Based on current information, NMFS precautionarily sets impulsive sounds equal to or greater than 180 and 190 dB re 1 microPa (rms) as the exposure thresholds for onset of Level A harassment (injury) for cetaceans and pinnipeds, respectively (NMFS, 2000). Those criteria have been used for several years in setting the safety (shut-down) radii for seismic surveys. As discussed in the UAF application and summarized here,

1. The 180-dB criterion for cetaceans is probably quite precautionary, i.e., lower than necessary to avoid TTS let alone permanent auditory injury, at least for delphinids.

2. The minimum sound level necessary to cause permanent hearing impairment is higher, by a variable and generally unknown amount, than the level that induces barely-detectable TTS.

3. The level associated with the onset of TTS is often considered to be lower than levels that may cause permanent hearing damage.

Because the airgun sources planned for use during this project involve only 1 or 2 guns, and with the planned monitoring and mitigation measures, there is little likelihood that any marine mammals will be exposed to sounds sufficiently strong to cause even the mildest (and reversible) form of hearing impairment. Several aspects of the planned monitoring and mitigation measures for this project are designed to detect marine mammals occurring near the airgun(s), and multi-beam sonar, and to avoid exposing them to sound pulses that might (at least in theory) cause hearing impairment. In addition, many cetaceans are likely to show some avoidance of the small area with high received levels of airgun sound (see above). In those cases, the avoidance responses of the animals themselves will likely reduce or prevent any possibility of hearing impairment.

Non-auditory physical effects might also occur in marine mammals exposed to strong underwater pulsed sound. Possible types of non-auditory physiological effects or injuries that theoretically might occur in mammals close to a strong sound source include stress, neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage. It is possible that some marine mammal species (i.e., beaked whales) may be especially susceptible to injury and/or stranding when exposed to strong pulsed sounds. However, as discussed below, there is no definitive evidence that any of these effects occur even in marine mammals that are in close proximity to large arrays of airguns. UAF and NMFS believe that it is highly unlikely that any of these non-auditory effects would occur during the proposed survey given the small size of the source, the brief duration of exposure of any given mammal, and the planned mitigation and monitoring measures. The following paragraphs discuss the possibility of TTS, permanent threshold shift (PTS), and non-auditory physical effects.

TTS is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter, 1985). When an animal experiences TTS, its hearing threshold rises and a sound must be stronger in order to be heard. TTS can last from minutes or hours to (in cases of strong TTS) days. Richardson et al. (1995) note that the magnitude of TTS depends on the level and duration of noise exposure, among other considerations. For sound exposures at or somewhat above the TTS threshold, hearing sensitivity recovers rapidly after exposure to the noise ends. Little data on pulsed sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals, and none of the published data concern TTS elicited by exposure to multiple pulses of sound.

For toothed whales exposed to single short pulses, the TTS threshold appears to be, at a first approximation, a function of the energy content of the pulse (Finneran et al., 2002). Given the available data, the received level of a single seismic pulse might need to be approximately 210 dB re 1 microPa rms (approx. 221 226 dB pk pk) in order to produce brief, mild TTS. Exposure to several seismic pulses at received levels near 200 205 dB (rms) might result in slight TTS in a small odontocete, assuming the TTS threshold is at a function of the total received pulse energy (Finneran et al., 2002). Seismic pulses with received levels of 200 205 dB or more are usually restricted to a zone of no more than 100 m (328 ft) around a seismic vessel operating a large array of airguns. Such sound levels would be limited to distances within a few meters of the single airgun planned for use during this project.

There are no data, direct or indirect, on levels or properties of sound that are required to induce TTS in any baleen whale. However, TTS is not expected to occur during this survey given that the airgun sources involve only 1 or 2 airguns, and the strong likelihood that baleen whales would avoid the approaching airgun(s), or vessel, before being exposed to levels high enough for there to be any possibility of TTS.

TTS thresholds for pinnipeds exposed to brief pulses (single or multiple) have not been measured, although exposures up to 183 dB re 1 microPa (rms) have been shown to be insufficient to induce TTS in captive California sea lions (Finneran et al., 2003). However, studies for prolonged exposures show that some pinnipeds may incur TTS at somewhat lower received levels for prolonged exposures than do small odontocetes exposed for similar durations (Kastak et al., 1999; Ketten et al., 2001; Au et al., 2000). More recent indications are that TTS onset in the most sensitive pinniped species studied (harbor seal) may occur at a similar sound exposure level as in odontocetes (Kastak et al. 2004).

A marine mammal within 100 m (≤328 ft) of a typical large array of operating airguns might be exposed to a few seismic pulses with levels of ≥205 dB, and possibly more pulses if the mammal moved with the seismic vessel. (As noted above, most cetacean species tend to avoid operating airguns, although not all individuals do so.) However, several of the considerations that are relevant in assessing the impact of typical seismic surveys with arrays of airguns are not directly applicable here:

(1) The planned airgun sources involve only 1 or 2 airguns, with correspondingly smaller radii within which received sound levels could exceed any particular level of concern.

(2) “Ramping up” (soft start) is standard operational protocol during startup of large airgun arrays in many jurisdictions. Ramping up involves starting the airguns in sequence, usually commencing with a single airgun and gradually adding additional airguns. This practice will be employed when the 2 G. guns are operated.

(3) Even with a large airgun array, it is unlikely that cetaceans would be exposed to airgun pulses at a sufficiently high level for a sufficiently long period to cause more than mild TTS, given the relative movement of the vessel and the marine mammal. In this project, the airgun sources are much less strong, so the area of influence and duration of exposure to strong pulses is much smaller, especially in deep and intermediate-depth water.

(4) With a large array of airguns, TTS would be most likely in any odontocetes that bow-ride or otherwise linger near the airguns. In the present project, the anticipated 180 dB distances in deep and intermediate-depth water are 325 and 500 m (1066 and 1640 ft), respectively, for the 2 G. gun system, and 50 and 75 m (164 and 246 ft), respectively, for the single Bolt airgun (Table 2). The waterline at the bow of the Healy will be approximately 123 m (403 ft) ahead of the airgun.

NMFS believes that, to avoid Level A harassment, cetaceans should not be exposed to pulsed underwater noise at received levels exceeding 180 dB re 1 microPa (rms). The corresponding limit for pinnipeds is 190 dB. The predicted 180- and 190-dB distances for the airgun arrays operated by UAF during this activity are summarized in Table 1 in this document.

It has also been shown that most whales tend to avoid ships and associated seismic operations. Thus, whales will likely not be exposed to such high levels of airgun sounds. Because of the slow ship speed, any whales close to the trackline could move away before the sounds become sufficiently strong for there to be any potential for hearing impairment. Therefore, there is little potential for whales being close enough to an array to experience TTS. In addition, ramping up multiple airguns in arrays has become standard operational protocol for many seismic operators and will occur when the 2 G. guns are operated.

When PTS occurs there is physical damage to the sound receptors in the ear. In some cases there can be total or partial deafness, while in other cases the animal has an impaired ability to hear sounds in specific frequency ranges. Although there is no specific evidence that exposure to pulses of airgun sounds can cause PTS in any marine mammals, even with the largest airgun arrays, physical damage to a mammal's hearing apparatus can potentially occur if it is exposed to sound impulses that have very high peak pressures, especially if they have very short rise times (time required for sound pulse to reach peak pressure from the baseline pressure). Such damage can result in a permanent decrease in functional sensitivity of the hearing system at some or all frequencies.

Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage in terrestrial mammals. However, very prolonged exposure to sound strong enough to elicit TTS, or shorter-term exposure to sound levels well above the TTS threshold, can cause PTS, at least in terrestrial mammals (Kryter, 1985). Relationships between TTS and PTS thresholds have not been studied in marine mammals but are assumed to be similar to those in humans and other terrestrial mammals, based on their similar anatomy and inner ear structures. The low-to-moderate levels of TTS that have been induced in captive odontocetes and pinnipeds during recent controlled studies of TTS have been confirmed to be temporary, with no measurable residual PTS (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002; Nachtigall et al., 2003). In terrestrial mammals, the received sound level from a single non-impulsive sound exposure must be far above the TTS threshold for any risk of permanent hearing damage (Kryter, 1994; Richardson et al., 1995). For impulse sounds with very rapid rise times (e.g., those associated with explosions or gunfire), a received level not greatly in excess of the TTS threshold may start to elicit PTS. The rise times for airgun pulses are rapid, but less rapid than for explosions.

Some factors that contribute to onset of PTS are as follows: (1) exposure to single very intense noises, (2) repetitive exposure to intense sounds that individually cause TTS but not PTS, and (3) recurrent ear infections or (in captive animals) exposure to certain drugs.

Cavanagh (2000) has reviewed the thresholds used to define TTS and PTS. Based on his review and SACLANT (1998), it is reasonable to assume that PTS might occur at a received sound level 20 dB or more above that which induces mild TTS. However, for PTS to occur at a received level only 20 dB above the TTS threshold, it is probable that the animal would have to be exposed to the strong sound for an extended period.

Sound impulse duration, peak amplitude, rise time, and number of pulses are the main factors thought to determine the onset and extent of PTS. Based on existing data, Ketten (1994) has noted that the criteria for differentiating the sound pressure levels that result in PTS (or TTS) are location and species-specific. PTS effects may also be influenced strongly by the health of the receiver's ear.

Given that marine mammals are unlikely to be exposed to received levels of seismic pulses that could cause TTS, it is highly unlikely that they would sustain permanent hearing impairment. If we assume that the TTS threshold for odontocetes for exposure to a series of seismic pulses may be on the order of 220 dB re 1 microPa (pk-pk) (approximately 204 dB re 1 microPa rms), then the PTS threshold might be about 240 dB re 1 microPa (pk-pk). In the units used by geophysicists, this is 10 bar-m. Such levels are found only in the immediate vicinity of the largest airguns (Richardson et al., 1995; Caldwell and Dragoset, 2000). However, as noted previously in this document, it is very unlikely that an odontocete would remain within a few meters of a large airgun for sufficiently long to incur PTS. The TTS (and thus PTS) thresholds of baleen whales and pinnipeds may be lower, and thus may extend to a somewhat greater distance from the source. However, baleen whales generally avoid the immediate area around operating seismic vessels, so it is unlikely that a baleen whale could incur PTS from exposure to airgun pulses. Some pinnipeds do not show strong avoidance of operating airguns.

In summary, during this project, it is highly unlikely that marine mammals could receive sounds strong enough and over a sufficient period of time to cause permanent hearing impairment. In the proposed project marine mammals are unlikely to be exposed to received levels of seismic pulses strong enough to cause TTS, and because of the higher level of sound necessary to cause PTS, it is even less likely that PTS could occur. This is due to the fact that even levels immediately adjacent to the single GI-airgun may not be sufficient to induce PTS because the mammal would not be exposed to more than one strong pulse unless it swam alongside an airgun for a period of time.

Marine mammals close to underwater detonations of high explosives can be killed or severely injured, and the auditory organs are especially susceptible to injury (Ketten et al., 1993; Ketten, 1995). Airgun pulses are less energetic and have slower rise times than underwater detonations. While there is no documented evidence that airgun arrays can cause serious injury, death, or stranding, the association of mass strandings of beaked whales with naval exercises and, in one case, an L-DEO seismic survey have raised the possibility that beaked whales may be especially susceptible to injury and/or behavioral reactions that can lead to stranding when exposed to strong pulsed sounds.

It is important to note that seismic pulses and mid-frequency military sonar pulses are quite different. Sounds produced by the types of airgun arrays used to profile sub-sea geological structures are broadband with most of the energy below 1 kHz. Typical military mid-frequency sonars operate at frequencies of 2 to 10 kHz, generally with a relatively narrow bandwidth at any one time (though the center frequency may change over time). Because seismic and sonar sounds have considerably different characteristics and duty cycles, it is not appropriate to assume that there is a direct connection between the effects of military sonar and seismic surveys on marine mammals. However, evidence that sonar pulses can, in special circumstances, lead to hearing damage and, indirectly, mortality suggests that caution is warranted when dealing with exposure of marine mammals to any high-intensity pulsed sound.

In addition to mid-frequency sonar-related strandings (see 69 FR 74906 (December 14, 2004) for additional discussion), there was a September, 2002 stranding of two Cuvier's beaked whales in the Gulf of California (Mexico) when a seismic survey by the R/V Maurice Ewing was underway in the general area (Malakoff, 2002). The airgun array in use during that project was the Ewing's 20-gun 8490-in3 array. This might be a first indication that seismic surveys can have effects, at least on beaked whales, similar to the suspected effects of naval sonars. However, the evidence linking the Gulf of California strandings to the seismic surveys is inconclusive, and is not based on any physical evidence (Hogarth, 2002; Yoder, 2002). The ship was also operating its multi-beam bathymetric sonar at the same time but this sonar had much less potential than these naval sonars to affect beaked whales. Although the link between the Gulf of California strandings and the seismic (plus multi-beam sonar) survey is inconclusive, this event, in addition to the various incidents involving beaked whale strandings associated with naval exercises, suggests a need for caution in conducting seismic surveys in areas occupied by beaked whales.

The present project will involve lower-energy sound sources than used in typical seismic surveys. That, along with the monitoring and mitigation measures that are planned, and the infrequent occurrence of beaked whales in the project area, will minimize any possibility for strandings and mortality.

Possible types of non-auditory physiological effects or injuries that might theoretically occur in marine mammals exposed to strong underwater sound include stress, neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage. There is no evidence that any of these effects occur in marine mammals exposed to sound from airgun arrays. However, there have been no direct studies of the potential for airgun pulses to elicit any of these effects. If any such effects do occur, they would probably be limited to unusual situations when animals might be exposed at close range for unusually long periods.

Long-term exposure to anthropogenic noise may have the potential to cause physiological stress that could affect the health of individual animals or their reproductive potential, which could theoretically cause effects at the population level (Gisner (ed.), 1999). However, there is essentially no information about the occurrence of noise-induced stress in marine mammals. Also, it is doubtful that any single marine mammal would be exposed to strong seismic sounds for sufficiently long that significant physiological stress would develop. That is especially so in the case of the present project which will deploy only 1 or 2 airguns, the ship is moving 3 4 knots, and for the most part the tracklines will not “double back” through the same area.

Gas-filled structures in marine animals have an inherent fundamental resonance frequency. If stimulated at this frequency, the ensuing resonance could cause damage to the animal. There may also be a possibility that high sound levels could cause bubble formation in the blood of diving mammals that in turn could cause an air embolism, tissue separation, and high, localized pressure in nervous tissue (Gisner (ed), 1999; Houser et al., 2001). In 2002, NMFS held a workshop (Gentry (ed.), 2002) to discuss whether the stranding of beaked whales in the Bahamas in 2000 might have been related to air cavity resonance or bubble formation in tissues caused by exposure to noise from naval sonar. A panel of experts concluded that resonance in air-filled structures was not likely to have caused this stranding. Among other reasons, the air spaces in marine mammals are too large to be susceptible to resonant frequencies emitted by mid- or low-frequency sonar; lung tissue damage has not been observed in any mass, multi-species stranding of beaked whales; and the duration of sonar pings is likely too short to induce vibrations that could damage tissues (Gentry (ed.), 2002).

Opinions were less conclusive about the possible role of gas (nitrogen) bubble formation/growth in the Bahamas stranding of beaked whales. Workshop participants did not rule out the possibility that bubble formation/growth played a role in the stranding and participants acknowledged that more research is needed in this area. The only available information on acoustically-mediated bubble growth in marine mammals is modeling that assumes prolonged exposure to sound.

A short paper concerning beaked whales stranded in the Canary Islands in 2002 suggests that cetaceans might be subject to decompression injury in some situations (Jepson et al., 2003). If so, that might occur if they ascend unusually quickly when exposed to aversive sounds. However, the interpretation that the effect was related to decompression injury is unproven (Piantadosi and Thalmann, 2004; Fernandez et al., 2004). Even if that effect can occur during exposure to mid-frequency sonar, there is no evidence that this type of effect occurs in response to low-frequency airgun sounds. It is especially unlikely in the case of the proposed survey, involving only 1 or 2 airguns that will operate in any one location only briefly.

In summary, little is known about the potential for seismic survey sounds to cause either auditory impairment or other non-auditory physical effects in marine mammals. Available data suggest that such effects, if they occur at all, would be limited to short distances from the sound source. However, the available data do not allow for meaningful quantitative predictions of the numbers (if any) of marine mammals that might be affected in these ways. Marine mammals that show behavioral avoidance of seismic vessels, including most baleen whales, some odontocetes, and some pinnipeds, are unlikely to incur auditory impairment or other physical effects. Also, the planned mitigation and monitoring measures are expected to minimize any possibility of serious injury, mortality or strandings.

A SeaBeam 2112 multi-beam 12-kHz bathymetric sonar system and a sub-bottom profiler will be operated from the source vessel nearly continuously during the planned study. A pinger will be operated during all coring.

Sounds from the SeaBeam 2112 multi-beam sonar system are very short pulses, depending on water depth. Most of the energy in the sound pulses emitted by the multi-beam is at moderately high frequencies, centered at 12 kHz. The beam is narrow (approximately 2 ) in fore-aft extent and wide (approximately 130°) in the cross-track extent. Any given mammal at depth near the trackline would be in the main beam for only a fraction of a second. Navy sonars that have been linked to avoidance reactions and stranding of cetaceans generally: (1) are more powerful than the SeaBeam 2112 sonar, (2) have a longer pulse duration, and (3) are directed close to horizontally (vs. downward for the SeaBeam sonars). The area of possible influence of the bathymetric sonar is much smaller-a narrow band oriented in the cross-track direction below the source vessel. Marine mammals that encounter the bathymetric sonar at close range are unlikely to be subjected to repeated pulses because of the narrow fore-aft width of the beam, and will receive only small amounts of pulse energy because of the short pulses and ship speed. In assessing the possible impacts of the 15.5-kHz Atlas Hydrosweep (similar to the SeaBeam sonar), Boebel et al. (2004) noted that the critical sound pressure level at which TTS may occur is 203.2 dB re 1 microPa (rms). The critical region included an area of 43 m (141 ft) in depth, 46 m (151 ft) wide athwartship, and 1 m (3.3 ft) fore-and-aft (Boebel et al., 2004). In the more distant parts of that (small) critical region, only slight TTS would be incurred. Therefore, as harassment or injury from pulsed sound is a function of total energy received, the actual harassment or injury threshold for the bathymetric sonar signals (approximately 10 ms) would be at a much higher dB level than that for longer duration pulses such as seismic signals. As a result, NMFS believes that marine mammals are unlikely to be harassed or injured from the SeaBeam multibeam sonars.

Sounds from the sub-bottom profiler are very short pulses; pulse duration ranges from 0.5 to 25 milliseconds, and the interval between pulses can range between 0.25 s and 10 s, depending upon water depth. A 3.5-kHz transducer emits a conical beam with a width of 26° and the 12 kHz transducer emits a conical beam with a width of 30°. The swept (chirp) frequency ranges from 2.75 kHz to 6 kHz. Most of the energy from the sub-bottom profiler is directed downward from the transducer array. Sound levels have not been measured directly for the sub-bottom profiler used by the Healy, but Burgess and Lawson (2000) measured sounds propagating more or less horizontally from a similar unit with similar source output (205 dB re 1 microPa m). The 160- and 180- dB re 1 microPa rms radii, in the horizontal direction, were estimated to be, respectively, near 20 m (66 ft) and 8 m (26 ft) from the source, as measured in 13 m or 43 ft water depth. The corresponding distances for an animal in the beam below the transducer would be greater, on the order of 180 m (591 ft) and 18 m (59 ft), assuming spherical spreading.

Sounds from the 12-kHz pinger are very short pulses, occurring for 0.5, 2, or 10 ms once every second, with source level approximately 192 dB re 1 microPa at a one pulse per second rate. The 12-kHz signal is omnidirectional. The pinger produces sounds that are within the range of frequencies used by small odontocetes and pinnipeds that occur or may occur in the area of the planned survey.

Marine mammal communications will not be masked appreciably by the multibeam sonar signals or the sub-bottom profiler given the low duty cycle and directionality of the sonars and the brief period when an individual mammal is likely to be within its beam. Furthermore, the 12-kHz multi-beam will not overlap with the predominant frequencies in baleen whale calls, further reducing any potential for masking in that group.

While the 12-kHz pinger produces sounds within the frequency range used by odontocetes that may be present in the survey area and within the frequency range heard by pinnipeds, marine mammal communications will not be masked appreciably by the pinger signals. This is a consequence of the relatively low power output, low duty cycle, and brief period when an individual mammal is likely to be within the area of potential effects. In the case of mysticetes, the pulses do not overlap with the predominant frequencies in the calls, which would avoid significant masking.

Behavioral reactions of free-ranging marine mammals to military and other sonars appear to vary by species and circumstance. Observed reactions have included silencing and dispersal by sperm whales (Watkins et al., 1985), increased vocalizations and no dispersal by pilot whales (Rendell and Gordon, 1999), and the previously-mentioned strandings by beaked whales. Also, Navy personnel have described observations of dolphins bow-riding adjacent to bow-mounted mid-frequency sonars during sonar transmissions. However, all of these observations are of limited relevance to the present situation. Pulse durations from these sonars were much longer than those of the bathymetric sonars to be used during the proposed survey, and a given mammal would have received many pulses from the naval sonars. During UAF's operations, the individual pulses will be very short, and a given mammal would not receive many of the downward-directed pulses as the vessel passes by.

Captive bottlenose dolphins and a white whale exhibited changes in behavior when exposed to 1-s pulsed sounds at frequencies similar to those that will be emitted by the bathymetric sonar to be used by UAF and to shorter broadband pulsed signals. Behavioral changes typically involved what appeared to be deliberate attempts to avoid the sound exposure (Schlundt et al., 2000; Finneran et al., 2002). The relevance of these data to free-ranging odontocetes is uncertain and in any case the test sounds were quite different in either duration or bandwidth as compared to those from a bathymetric sonar.

UAF and NMFS are not aware of any data on the reactions of pinnipeds to sonar sounds at frequencies similar to those of the 12-kHz multibeam sonar. Based on observed pinniped responses to other types of pulsed sounds, and the likely brevity of exposure to the bathymetric sonar sounds, pinniped reactions are expected to be limited to startle or otherwise brief responses of no lasting consequences to the individual animals.

The pulsed signals from the pinger are much weaker than those from the bathymetric sonars and sub-bottom profiler. In summary, NMFS does not anticipate behavioral disturbance from the mid-frequency sources discussed unless marine mammals get very close to the source.

Given recent stranding events that have been associated with the operation of naval sonar, there is concern that sonar noise can cause serious impacts to marine mammals. However, the multi-beam sonars proposed for use by UAF are quite different than sonars used for navy operations. Pulse duration of the bathymetric sonars is very short relative to the naval sonars. Also, at any given location, an individual marine mammal would be in the beam of the multi-beam sonar for much less time given the generally downward orientation of the beam and its narrow fore-aft beam-width. (Navy sonars often use near-horizontally-directed sound.) These factors would all reduce the sound energy received from the multi-beam sonar relative to that from the sonars used by the Navy. Therefore, hearing impairment by multi-beam bathymetric sonar is unlikely.

Source levels of the sub-bottom profiler are much lower than those of the airguns and the multi-beam sonar, which are discussed above. Sound levels from a sub-bottom profiler similar to the one on the Healy were estimated to decrease to 180 dB re 1 μPa (rms) at 8 m (26 ft) horizontally from the source (Burgess and Lawson, 2000), and at approximately 18 m (59 ft) downward from the source. Furthermore, received levels of pulsed sounds that are necessary to cause temporary or especially permanent hearing impairment in marine mammals appear to be higher than 180 dB (see earlier). Thus, it is unlikely that the sub-bottom profiler produces pulse levels strong enough to cause hearing impairment or other physical injuries even in an animal that is (briefly) in a position near the source. The sub-bottom profiler is usually operated simultaneously with other higher-power acoustic sources. Many marine mammals will move away in response to the approaching higher-power sources or the vessel itself before the mammals would be close enough for there to be any possibility of effects from the less intense sounds from the sub-bottom profiler. In the case of mammals that do not avoid the approaching vessel and its various sound sources, mitigation measures that would be applied to minimize effects of the higher-power sources would further reduce or eliminate any minor effects of the sub-bottom profiler. Given the brevity of the pulses from each source [sub-bottom profiler, multi-beam sonar, airgun(s)], and the directionality of the first two sources, it would be rare for an animal to receive pulses from 2 or 3 of the sources simultaneously. In the unlikely event that simultaneous reception did occur, the combined received level would be little different from that attributable to the strongest single source (see equation 2.9 in Richardson et al. 1995, p. 30).

Source levels of the pinger are much lower than those of the G. airgun and bathymetric sonars. It is unlikely that the pinger produces pulse levels strong enough to cause temporary hearing impairment or (especially) physical injuries even in an animal that is (briefly) in a position near the source.

Given the proposed mitigation (see Mitigation later in this document), all anticipated takes involve a temporary change in behavior that may constitute Level B harassment. The proposed mitigation measures will minimize or eliminate the possibility of Level A harassment or mortality. UAF has calculated the “best estimates” for the numbers of animals that could be taken by Level B harassment during the proposed Arctic Ocean seismic survey using data obtained during marine mammal surveys in and near the Arctic Ocean by Stirling et al. (1982), Kingsley (1986), Christensen et al. (1992), Koski and Davis (1994), Moore (2000a), Whitehead (2002), and Moulton and Williams (2003), and on estimates of the sizes of the areas where effects could potentially occur (Table 2).

This section provides estimates of the number of potential “exposures” of marine mammals to sound levels ≥160, the criteria for the onset of Level B Harassment, by operations with the two-G. gun array (500 in3) or the single Bolt airgun (1200 in3). No animals are expected to exhibit responses to the sonars, sub-bottom profiler, or pinger given their characteristics described previously (e.g., narrow, downward-directed beam). Therefore, no additional incidental takings are included for animals that might be affected by the multi-beam sonars or 12-kHz pinger.

Table 2 incorporates corrected density estimates and provides the best estimate of the numbers of each species that would be exposed to seismic sounds greater than 160 dB. Estimates are based on consideration of numbers of marine mammals that might be disturbed by 5075 km of seismic surveys across the Arctic Ocean, which includes a 25 percent allowance over the planned 4060-km track to allow for turns, lines that might have to be repeated due to poor data quality, or for minor changes to the survey design. A detailed description on the methodology used by UAF to arrive at the estimates of Level B harassment takes that are provided in Table 2 can be found in UAF's IHA application for the Arctic Ocean survey.

Table 2. Estimates of the possible numbers of marine mammal exposures to 160 dB during UAF's proposed seismic program in the polar pack ice between Alaska and Svalbard, August-September 2005. The proposed sound sources are two G. guns with volume 250 in3 each or a single Bolt airgun with volume 1200 in3. Received levels of airgun sounds are expressed in dB re 1 μPa (rms, averaged over pulse duration). Species with stars are listed as endangered under the ESA.

Under the United States-Singapore Free Trade Agreement (USSFTA), USSFTA countries are required to eliminate customs duties on textile and apparel goods that qualify as originating goods under the USSFTA rules of origin, which are set out in Annex 3A to the USSFTA. The USSFTA provides that the rules of origin for textile and apparel products may be amended through a subsequent agreement by the USSFTA countries. In consultations regarding such a change, the USSFTA countries are to consider issues of availability of supply of fibers, yarns, or fabrics in the free trade area and whether domestic producers are capable of supplying commercial quantities of the good in a timely manner.

The government of the United States received a request from the government of Singapore requesting consultations on the rules of origin for certain products that have been the subject of prior determinations made by CITA under AGOA, CBTPA and ATPDEA, and requesting that the government of the United States consider whether the USSFTA rules of origin for these products should be modified to allow the use of certain yarns and fabrics that do not originate in the territory of the United States or Singapore. The products covered by this request are:

CITA is soliciting public comments regarding this request, particularly with respect to whether the yarns and fabrics listed above can be supplied by the domestic industry in commercial quantities in a timely manner. Comments must be received no later than June 16, 2004. Interested persons are invited to submit six copies of such comments or information to the Chairman, Committee for the Implementation of Textile Agreements, room 3100, U.S. Department of Commerce, 14th and Constitution Avenue, N.W., Washington, DC 20230.

If a comment alleges that any of the yarns or fabrics listed above can be supplied by the domestic industry in commercial quantities in a timely manner, CITA will closely review any supporting documentation, such as a signed statement by a manufacturer stating that it produces a yarn or fabric that is in the subject of the request, including the quantities that can be supplied and the time necessary to fill an order, as well as any relevant information regarding past production.

CITA will protect any business confidential information that is marked “business confidential” from disclosure to the full extent permitted by law. CITA will make available to the public non-confidential versions of the request and non-confidential versions of any public comments received with respect to a request in room 3100 in the Herbert Hoover Building, 14th and Constitution Avenue, N.W., Washington, DC 20230. Persons submitting comments on a request are encouraged to include a non-confidential version and a non-confidential summary.

Any licenses granted shall comply with 35 U.S.C. 209 and 37 CFR part 404.

The U.S. Army Corps of Engineers is authorized by the various Rivers and Harbor Acts and Water Resources Development Acts to conduct maintenance dredging of the federal navigation channels and anchorage areas in Boston Harbor.

In addition to maintenance dredging of the inner harbor, a feasibility study is currently underway to investigate deepening of the main shipping channels in the port of Boston seaward of the Ted Williams Tunnel to a depth greater than the currently authorized depths. This feasibility study, which will also include the preparation of a Supplemental EIS to the 1995 Record of Decision for the navigation improvement project, will examine the engineering feasibility, economic justification, social and cultural resource impacts, and environmental acceptability of the proposed channel deepening. The existing −40 foot MLLW main harbor entrance channel from Broad Sound, through President Roads, and up to the Marine Terminal just seaward of the Ted Williams Tunnel will be examined for depths up to −50 feet MLLW, as will the Reserved Channel. Deepening of a small area of the Mystic River Channel upstream of the Moran Terminal, from the current −35 foot depths to −40 feet will also be examined, as will deepening the Chelsea River Channel from the current −38 foot depth −40 feet.

Maintenance dredging of the federal Main Ship channel seaward of Spectacle Island, the President Roads anchorage area, and the Broad Sound North Channel is scheduled to be completed by May 2005. Material dredged from these channels was determined to be suitable for ocean water disposal and was disposal at the U.S. Environmental Protection Agency designated dredged material Massachusetts Bay Disposal Site.

Alternatives: The no action alternative will be investigated. Material unsuitable for ocean disposal would most likely be disposed within confined aquatic disposal (CAD) cells within the federal navigation channels above the Ted Williams Tunnel. The draft and final EIS for the previous Boston Harbor navigation improvement project investigated other alternative disposal sites for the disposal of dredged material. Material suitable for ocean disposal would likely be disposed at the Massachusetts Bay Disposal Site. A draft SEIS is expected to be completed by October 2005.

Pursuant to the provisions of the Federal Advisory Committee Act (5 U.S.C. App. 2), these matters constitute classified information that is specifically authorized by Executive Order to be kept secret in the interest of national defense and are, in fact, properly classified pursuant to such Executive Order. Accordingly, the Secretary of the Navy has determined in writing that the public interest requires that all sessions of the meeting be closed to the public because they will be concerned with matters listed in section 552b(c)(1) of title 5, United States Code.

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, Information Management Case Services Team, Regulatory Information Management Services, 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: Revision.

Title: Public Libraries Survey, 2005-2007.

Frequency: Annually.

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

Reporting and Recordkeeping Hour Burden: Responses: 55; Burden Hours: 3,080.

Abstract: Mandated under Public Law 107-279, this survey collects annual descriptive data on the universe of public libraries in the U.S. and the Outlying Areas. Information such as public service hours per year, circulation of library books, etc., number of librarians, population of legal service area, expenditures for library collection, staff salary data, and access to technology are collected.

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 2708. 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 Kathy Axt at her e-mail Kathy.Axt@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.

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, Information Management Case Services Team, Regulatory Information Management Services, 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: Revision.

Title: State Library Agencies Survey, 2005-2007.

Frequency: Annually.

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

Reporting and Recordkeeping Hour Burden: Responses: 51; Burden Hours: 1,071.

Abstract: State library agencies are the official agencies of each state charged by state law with the extension and development of public library services throughout the state. The purpose of this survey is to provide state and federal policymakers with information about StLAs, including their governance, allied operations, developmental services to libraries and library systems, support of electronic information networks and resources, number and types of outlets, and direct services to the public.

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 2709. 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 Kathy Axt at her e-mail address Kathy.Axt@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.

The information collection submitted for OMB review contains the following:

1. Collection of Information: FERC-549, “Gas Pipeline Rates: NGPA Title III and NGA Blanket Certificate Transactions”.

2. Sponsor: Federal Energy Regulatory Commission.

3. Control No.: 1902-0086.

The Commission is now requesting that OMB approve a three-year extension of the expiration date, with no changes to the existing collection. The information filed with the Commission is mandatory.

4. Necessity of the Collection of Information: Submission of the information is necessary for the Commission to carry out its responsibilities in implementing the statutory provisions of sections 311 and 312 of the Natural Gas Policy Act (NGPA) and Section 7 of the Natural Gas Act (NGA). The reporting requirements for implementing these provisions are contained in 18 Code of Federal Regulations (CFR) Part 284. Under Part 284 of the Commission's regulations non-interstate pipelines that perform transportation service under NGPA section 311 (intrastate pipelines) or blanket certificates issued under section 7 of the NGA are required to file an annual report containing specific details of each transaction initiated during the reporting year. Interstate pipelines performing unbundled sales service under a blanket certificate granted under Part 284 of the regulations are required to file an annual report detailing specific information on each transaction initiated during the reporting year.

In Order No. 644 (68 FR 66323, November 26, 2003), the Commission amended its regulations regarding blanket certificates for unbundled gas sales services held by interstate natural gas pipelines and blanket marketing certificates held by persons making sales for resale of gas at negotiated rates in interstate commerce. The Commission required that pipelines and all sellers for resale adhere to a code of conduct with respect to gas sales.

The information collected in these reports is used by the Commission to monitor the jurisdictional transportation activities of intrastate, Hinshaw pipelines and the unbundled sales activities of interstate natural gas pipelines and persons holding blanket marketing certificates. The Commission also uses the information to ensure the integrity of the gas sales market that remains under the Commission's jurisdiction. These are mandatory filing and recordkeeping requirements in the Code of Federal Regulations under 18 CFR 284.126, 284.281-284.288 and 284.401-284.403.

5. Respondent Description: The respondent universe currently comprises 222 filings (average per year) subject to the Commission's jurisdiction. Of the 222, 77 filings are for the transportation report under 284.126.

6. Estimated Burden: 1,290 total hours, 222 respondents (average per year), 1 response per respondent, and 11.2 hours per response (average) for the two filings.

7. Estimated Cost Burden to Respondents: 1,290 hours / 2080 hours per year × $108,558 per year = $44,154 (reporting) + $477,300 (22 × $2150) (recordkeeping) = $521,145. The cost per respondent is equal to $2,349.

EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On December 7, 2004 (69 FR 70680), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. EPA received and responded to one request for information.

EPA has established a public docket for this ICR under Docket ID No. ORD-2004-0019, which is available for public viewing at the Office of Research and Development 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 Office of Research and Development Docket is (202) 566-1752. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at http://www.epa.gov/edocket. Use EDOCKET to 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 and OMB within 30 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.

Title: Detroit Children's Health Study: Health Effects of Environmental Exposures among Children Living in the Detroit, Michigan Area.

Abstract: This epidemiologic study will be conducted by EPA's National Health and Environmental Effects Research Laboratory. This study will examine the role of long-term environmental exposures, particularly local sources of ambient air pollution, in children's respiratory health conditions such as allergies and asthma. The participation of parents and children in this collection of information is strictly voluntary.

Children's respiratory health will be assessed by a parent-completed questionnaire and by simple measures of the child's lung function and exhaled breath. The twenty-page questionnaire will be distributed to the parents of children enrolled in the fourth and fifth grades at selected public schools in Detroit and Dearborn. The questionnaire includes a request for permission for their child to participate in measurements of lung parameters. Later, at a subset of these schools, those children with parental consent will be asked to perform simple measurements of air flow rates, lung volumes, and exhaled nitric oxide. The schools will be selected based on school location with respect to major roadways and major emission point sources.

Children's long-term environmental exposures will be assessed based on a detailed lifetime residential history from the questionnaire, supplemental air quality measurements collected at a selected group of schools distributed throughout the school district, and an air quality model incorporating geographic information on local sources of air pollutants. Central site measurements of ambient air pollutants will be collected at the time of the lung function examinations.

The collected information will be used to estimate the epidemiologic associations between respiratory health conditions and long-term exposures to ambient air pollutants in the study community. The epidemiologic analysis will examine the association of air quality parameters with a higher prevalence of respiratory conditions, with lower lung function, or with higher levels of exhaled nitric oxide after appropriate control for other determinants of respiratory health.

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 and are identified on the form and/or instrument, if applicable.

Burden Statement: The annual public reporting and recordkeeping burden for this collection of information is 0.4 hours per parent questionnaire and 0.75 hours per set of child respiratory health measures. This survey will not be repeated. 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.

Respondents/Affected Entities: Entities potentially affected by this action are school officials, parents and children in the Detroit and Dearborn Public Schools.

Estimated Number of Respondents: 18,500.

Frequency of Response: Once.

Estimated Total Annual Hour Burden: 8,250 hours.

Estimated Total Annual Cost: $113,468, includes $0 annualized capital or O&M costs and $113,468 in Labor costs.

This action is directed to the public in general, and may be of particular interest to those persons who manufacture, import, process, or use nanoscale materials that are chemical substances subject to TSCA jurisdiction. Potentially affected entities may include, but are not limited to:

• Chemical manufacturers (NAICS 325), e.g., persons manufacturing, importing, processing, or using chemicals for commercial purposes.

• Petroleum and coal product industries (NAICS 324), e.g., persons manufacturing, importing, processing, or using chemicals for commercial purposes.

Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may have an interest in this matter. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

The Agencies have observed an increase in the types and frequency of provisions in certain financial institutions' external audit engagement letters that limit the auditors' liability. While these provisions do not appear in a majority of financial institution engagement letters, the provisions are becoming more prevalent. The Agencies believe such provisions may weaken an external auditor's objectivity, impartiality, and performance; therefore, inclusion of these provisions in financial institution engagement letters raises safety and soundness concerns.

While these provisions take many forms, they can be generally categorized as an agreement by a financial institution that is a client of an external auditor to:

• Indemnify the external auditor against claims made by third parties;

• Hold harmless or release the external auditor from liability for claims or potential claims that might be asserted by the client financial institution; or

• Limit the remedies available to the client financial institution.

The FFIEC has approved the publication of the proposed advisory on behalf of the Agencies to seek public comment to fully understand the effect of the proposed advisory on the inappropriate use of limitation of liability provisions on external auditor engagements. While public comments are welcome on all aspects of this advisory, the Agencies are specifically seeking comments on the following questions. Please provide information that supports your position.

1. The advisory, as written, indicates that limitation of liability provisions are inappropriate for all financial institution external audits.

a. Is the scope appropriate? If not, to which financial institutions should the advisory apply and why?

b. Should the advisory apply to financial institution audits that are not required by law, regulation, or order?

2. What effects would the issuance of this advisory have on financial institutions' ability to negotiate the terms of audit engagements?

3. Would the advisory on limitation of liability provisions result in an increase in external audit fees?

a. If yes, would the increase be significant?

b. Would it discourage financial institutions that voluntarily obtain audits from continuing to be audited?

c. Would it result in fewer audit firms being willing to provide external audit services to financial institutions?

4. The advisory describes three general categories of limitation of liability provisions.

a. Is the description complete and accurate?

b. Is there any aspect of the advisory or terminology that needs clarification?

5. Appendix A of the advisory contains examples of limitation of liability provisions.

a. Do the examples clearly and sufficiently illustrate the types of provisions that are inappropriate?

b. Are there other inappropriate limitation of liability provisions that should be included in the advisory? If so, please provide examples.

6. Is there a valid business purpose for financial institutions to agree to any limitation of liability provision? If so, please describe the limitation of liability provision and its business purpose.

7. The advisory strongly recommends that financial institutions take appropriate action to nullify limitation of liability provisions in 2005 audit engagement letters that have already been accepted. Is this recommendation appropriate? If not, please explain your rationale (including burden and cost).

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Agencies have reviewed the proposed advisory and determined that it does not contain a collection of information pursuant to the Act.

The text of the proposed advisory follows:

This advisory, issued jointly by the Office of Thrift Supervision (OTS), the Board of Governors of the Federal Reserve System (Board), the Federal Deposit Insurance Corporation (FDIC), the National Credit Union Administration (NCUA), and the Office of the Comptroller of the Currency (OCC) (collectively, the Agencies), alerts financial institutions' 1 boards of directors, audit committees, management, and external auditors to the safety and soundness implications of provisions that limit the external auditor's liability in a financial statement audit. While the Agencies have observed several types of these provisions in external audit engagement letters, this advisory applies to any agreement that a financial institution enters into with its external auditor that limits the external auditor's liability with respect to financial statement audits.

Agreements by financial institutions to limit their external auditors' liability or to submit to certain alternative dispute resolution (ADR) provisions that also limit the external auditors' liability may weaken the external auditors' objectivity, impartiality, and performance and thus, reduce the Agencies' ability to rely on external audits. Therefore, such agreements raise safety and soundness concerns, and entering into such agreements is generally considered to be an unsafe and unsound practice.

In addition, such provisions may not be consistent with the auditor independence standards of the U.S. Securities and Exchange Commission (SEC), the Public Company Accounting Oversight Board (PCAOB), and the American Institute of Certified Public Accountants (AICPA).

A properly conducted external audit provides an independent and objective view of the reliability of a financial institution's financial statements. The external auditor's objective in an audit of financial statements is to form an opinion on the financial statements taken as a whole. When planning and performing the audit, the external auditor considers the financial institution's internal control over financial reporting. Generally, the external auditor communicates any identified deficiencies in internal control to management, which enables management to take appropriate corrective action. For these reasons, the Agencies encourage all financial institutions to obtain external audits of their financial statements. The Federal Financial Institutions Examination Council's (FFIEC) Interagency Policy Statement on External Auditing Programs of Banks and Savings Associations 2 notes “[a]n institution's internal and external audit programs are critical to its safety and soundness.” The policy also states that an effective external auditing program “can improve the safety and soundness of an institution substantially and lessen the risk the institution poses to the insurance funds administered by” the FDIC.

Typically, a written engagement letter is used to establish an understanding between the external auditor and the financial institution regarding the services to be performed in connection with the external audit of the financial institution. The engagement letter commonly describes the objective of the external audit, the reports to be prepared, the responsibilities of management and the external auditor, and other significant arrangements (e.g., fees and billing). As with any important contract, the Agencies encourage boards of directors, audit committees, and management to closely review all of the provisions in the external audit engagement letter before agreeing to sign. To assure that those charged with engaging the external auditor make a fully informed decision, any agreement such as an engagement letter that affects the financial institution's legal rights should be carefully reviewed by the financial institution's legal counsel.

While the Agencies have not observed provisions that limit an external auditor's liability in the majority of external audit engagement letters reviewed, the Agencies have observed a significant increase in the types and frequency of these provisions. These provisions take many forms,3 but they can be generally categorized as an agreement by a financial institution that is a client of an external auditor to:

• Indemnify the external auditor against claims made by third parties;

• Hold harmless or release the external auditor from liability for claims or potential claims that might be asserted by the client financial institution; or

• Limit the remedies available to the client financial institution.

Financial institutions” boards of directors, audit committees, and management should also be aware that certain financial institution insurance policies (such as error and omission policies and director and officer liability policies) may not cover the financial institutions' losses arising from claims that are precluded by the limitation of liability provisions.

Many financial institutions are required to have their financial statements audited while others voluntarily choose to undergo such audits. For example, banks, savings associations, and credit unions with $500 million or more in total assets are required to have annual independent audits.4 Certain savings associations (for example, those with a CAMELS rating of 3, 4, or 5) and savings and loan holding companies are also required by OTS regulations to have annual independent audits.5 Furthermore, financial institutions that are public companies 6 must have annual independent audits. The Agencies rely on the results of external audits as part of their assessment of the safety and soundness of a financial institution's operations.

In order for an external audit to be effective, the external auditors must be independent in both fact and appearance, and they must perform all necessary procedures to comply with generally accepted auditing standards established by the AICPA and, if applicable, the standards of the PCAOB. When a financial institution executes an agreement that limits the external auditor's liability, the external auditor's objectivity, impartiality, and performance may be weakened or compromised and the usefulness of the external audit for safety and soundness purposes may be diminished.

Since limitation of liability provisions can impair the external auditor's independence and may adversely affect the external auditor's performance, they present safety and soundness concerns for all financial institution external audits. By their very nature, these provisions can remove or greatly weaken an external auditor's objective and unbiased consideration of problems encountered in the external audit engagement and induce the external auditor to depart from the standards of objectivity and impartiality required in the performance of a financial statement audit. The existence of such provisions in an external audit engagement letter may lead to the use of less extensive or less thorough procedures than would otherwise be followed, thereby reducing the benefits otherwise expected to be derived from the external audit. Accordingly, financial institutions should not enter into external audit arrangements that include any limitation of liability provisions. This applies regardless of the size of the financial institution, whether the financial institution is public or not, and whether the external audit is required or voluntary.

Currently, auditor independence standard-setters include the AICPA, the SEC, and the PCAOB. Depending upon the audit client, an external auditor is subject to the independence standards of one or more of these standard-setters. For all credit unions under NCUA's regulations, and for other non-public financial institutions that are not required to have annual independent audits pursuant to Part 363 of the FDIC's regulations or pursuant to OTS's regulations, the Agencies' rules require only that an external auditor meet the AICPA independence standards; they do not require the financial institution's external auditor to comply with the independence standards of the SEC and the PCAOB.

In contrast, for financial institutions subject to the audit requirements in Part 363 of the FDIC's regulations or subject to OTS's regulations, the external auditor should be in compliance with the AICPA's Code of Professional Conduct and meet the independence requirements and interpretations of the SEC and its staff.7 In this regard, in a December 13, 2004, Frequently Asked Question (FAQ) on the application of the SEC's auditor independence rules, the SEC reiterated its long-standing position that when an accountant and his or her client enter into an agreement which seeks to provide the accountant immunity from liability for his or her own negligent acts, the accountant is not independent. The FAQ also states that including in engagement letters a clause that would release, indemnify, or hold the auditor harmless from any liability and costs resulting from knowing misrepresentations by management would impair the auditor's independence.8 The SEC's FAQ is consistent with Section 602.02.f.i. (Indemnification by Client) of the SEC's Codification of Financial Reporting Policies. (Section 602.02.f.i. and the FAQ are included in Appendix B.)

Based on this SEC guidance and the Agencies' existing regulations, limitation of liability provisions are already inappropriate in auditor engagement letters entered into by:

• Public financial institutions that file reports with the SEC or with the Agencies;

• Financial institutions subject to Part 363; and

• Certain other financial institutions that OTS regulations at 12 CFR 562.4 require to have annual independent audits.

In addition, many of these limitation of liability provisions may violate the AICPA independence standards. Because limitation of liability provisions may impair an auditor's independence and may adversely affect the external auditor's objectivity, impartiality, and performance, the provisions present safety and soundness concerns for all financial institution external audits.

The Agencies have also observed that some financial institutions are agreeing in their external audit engagement letters to submit disputes over external auditor services to mandatory and binding alternative dispute resolution, binding arbitration, or some other binding non-judicial dispute resolution process (collectively referred to as mandatory ADR) or to waive the right to a jury trial. By agreeing in advance to submit disputes to mandatory ADR, the financial institution is effectively agreeing to waive the right to full discovery, limit appellate review, and limit or waive other rights and protections available in ordinary litigation proceedings. While ADR may expedite case resolution and reduce costs, financial institutions should consider the value of the rights being waived. Similarly, by waiving a jury trial, the financial institution may effectively limit the amount it might receive in any settlement of its case. The loss of these legal protections can reduce the value of the financial institution's claim in an audit dispute.

The Agencies recognize that ADR procedures and jury trial waivers may be efficient and cost-effective tools for resolving disputes in some cases. However, financial institutions should take care to understand the ramifications of agreeing to submit audit disputes to mandatory ADR or to waive a jury trial before an audit dispute arises.

In particular, pre-dispute mandatory ADR agreements in external audit engagement letters present safety and soundness concerns when they incorporate additional limitations of liability, or when mandatory ADR agreements operate under rules of procedure that may limit auditor liability. Examples of such limitations on liability include provisions:

• Capping the amount of actual damages that may be claimed;

• Prohibiting claims for punitive damages or other remedies; or

• Shortening the time in which the financial institution may file a claim.

Thus, financial institutions should not enter into pre-dispute mandatory ADR arrangements that incorporate limitation of liability provisions, whether the limitations on liability form part of an audit engagement letter or are set out separately.

The Agencies encourage all financial institutions to review each proposed external audit engagement letter presented by an audit firm and understand the limitations on the ability to recover effectively from an audit firm in light of any mandatory ADR agreement or jury trial waiver. Financial institutions should also review the rules of procedure referenced in the ADR agreement to ensure that the potential consequences of such procedures are acceptable to the institution. In addition, financial institutions should recognize that ADR agreements may themselves contain limitation of liability provisions as described in this advisory.

Financial institutions' boards of directors, audit committees, and management should ensure that they do not enter any agreement that contains external auditor limitation of liability provisions with respect to financial statement audits. In addition, financial institutions should document their business rationale for agreeing to any other provisions that alter their legal rights.

The inclusion of limitation of liability provisions in external audit engagement letters and other agreements that are inconsistent with this advisory will generally be considered an unsafe and unsound practice. The Agencies may take appropriate supervisory action if such provisions are included in external audit engagement letters or other agreements related to financial statement audits that are executed (accepted or agreed to by the financial institution) after the date of this advisory. Furthermore, if boards of directors, audit committees, or management have already accepted an external audit engagement letter or related agreement for a fiscal 2005 or subsequent financial statement audit (i.e., fiscal years ending on or after January 1, 2005), the Agencies strongly recommend that boards of directors, audit committees, and management consult with legal counsel and the external auditor and take appropriate action to have any limitation of liability provision nullified.

Financial institutions' boards of directors, audit committees, and management should also check with their insurers to determine the effect, if any, on their ability to recover losses as a result of the external auditors' actions that were not recovered because of the limitation of liability provisions.

As indicated in the Interagency Policy Statement on External Auditing Programs of Banks and Savings Associations, the Agencies' examiners will consider the policies, processes, and personnel surrounding a financial institution's external auditing program in determining whether (1) the engagement letter covering external auditing activities is adequate and does not raise any safety and soundness concerns and (2) the external auditor maintains appropriate independence regarding relationships with the financial institution under relevant professional standards.

The Federal Maritime Commission is publishing an updated list of controlled carriers. Section 3(8) of the Shipping Act of 1984 (“Act”), 46 U.S.C. app. 1702(3), defines a “controlled carrier” as:

As required by the Shipping Act, controlled carriers are subject to special oversight by the Commission. Section 9(a) of the Act, 46 U.S.C. app. 1708(a), states, in part:

The controlled carrier list is not a comprehensive list of foreign-owned or -controlled ships or shipowners; rather, it is only a list of ocean common carriers (as defined in section 3(16) of the Act) that are owned or controlled by governments. Thus, tramp operators and other non-common carriers are not included, nor are non-vessel-operating common carriers, regardless of their ownership or control.

Since the last publication of this list on June 9, 2003 (68 FR 34388), the Commission has newly classified two ocean common carriers as controlled carriers. On September 27, 2004, American President Lines, Ltd. and APL Co. Pte, Ltd. (one ocean common carrier designated “APL”) was classified as a carrier controlled by the Government of the Republic of Singapore (“GOS”). The majority ownership of APL's parent company, Neptune Orient Lines (“NOL”) had been purchased by a GOS controlled holding company. On November 29, 2004, the Commission classified China Shipping (Hong Kong), Ltd. (“CSHK”) as a carrier controlled by the Government of the People's Republic of China. CSHK was a new entrant in the U.S.-foreign trades. Neither APL nor CSHK raised any objections to these classifications.

It is requested that any other information regarding possible omissions or inaccuracies in this list be provided to the Commission's Office of the General Counsel. See 46 CFR 501.23. The amended list of currently classified controlled carriers and their corresponding Commission-issued Registered Persons Index numbers is set forth below:

Section 319 of the FACT Act, Public Law 108-159 (2003), requires the FTC to study the accuracy and completeness of information in consumers' credit reports and to consider methods for improving the accuracy and completeness of such information. Section 319 requires the Commission to issue a series of biennial reports to Congress over a period of eleven years. The first report was submitted to Congress in December 2004 (“December 2004 Report”).2

As discussed in the December 2004 Report, the FTC intends to conduct a pilot study which will evaluate the feasibility and methodology of a nationwide survey on the accuracy and completeness of consumer reports. On October 20, 2004, the FTC sought comment on the information collection requirements associated with its proposed pilot study. 69 FR 61675. Ten comments were received, which are discussed below.3 Pursuant to the OMB regulations that implement the PRA, 5 CFR part 1320, the FTC is providing this second opportunity for public comment while seeking OMB approval for the proposed pilot study.

The purpose of the proposed pilot study is to evaluate the feasibility of directly involving consumers in a review of the information in their credit reports. The pilot study does not rely on the selection of a nationally representative sample of consumers, and as the Commission stated in the December 2004 report (at 32), statistical conclusions will not be drawn from this study. The study will involve a small group of consumers who give the designated contractor permission to review their credit reports. The contractor will help the participants to understand their reports and to discern inaccuracies or incompleteness in them. This process of review will also involve contact with the three nationwide consumer reporting agencies (“CRAs”) and those who furnish information (“data furnishers”) to these agencies. The pilot study is primarily a tool to assess whether the collection of certain data pertinent to credit report accuracy can be performed in a way that is not unduly resource-intensive and would not be cost-prohibitive if extended to a nationwide survey (including such matters as identifying and screening participants, as well as involving data furnishers).

Subject to OMB clearance for the study under the Paperwork Reduction Act, the FTC has designated a contractor with high-level expertise in credit reporting issues.4 The design elements of the study are the following:

1. The study group will be drawn by a randomized procedure that is screened to consist of adult members of households to whom credit has been extended in the form of credit cards, automobile loans, home mortgages, or other forms of installment credit. The FTC will send a letter to potential study participants describing the nature and purpose of the pilot study. The contractor will screen consumers through telephone interviews. The selected study group will consist of approximately 35 consumers having a diversity of credit scores over three broad categories: poor, fair, and good.5 As various consumers give consent to participate (and thereby give the contractor permission to know their credit scores), if the respective categories of credit scores have an unequal distribution of consumers, then an array will be chosen to favor the consumers with the relatively lower credit scores.

2. The contractor will help the participants obtain their credit reports from the three nationwide CRAs—Equifax, Experian, and TransUnion—through the Web site http://www.myfico.com. Each participant will request his or her three credit reports on the same day, although different participants will generally request their reports on different days.

3. The contractor will help the participants review their credit reports by resolving common misunderstandings that they may have about the information in their reports; this will involve educating the participant wherever appropriate (thereby helping them to distinguish between accurate and inaccurate information). In addition, the contractor will help the consumer locate any material differences or discrepancies among their three reports, and check whether these differences indicate inaccuracies.

4. The contractor will facilitate a participant's contact with the CRAs and with data furnishers as necessary to help resolve credit report items that the participant views as inaccurate. To the extent necessary, the contractor will guide participants through the dispute process established by the Fair Credit Reporting Act (“FCRA”), (the FCRA limits this process to 30 days, but the time may be extended to 45 days if the consumer submits relevant information during the 30-day period). The contractor will not contact the CRAs and data furnishers directly during the course of the study, however. The contractor will determine any changes in the participant's FICO credit score resulting from changes in credit report information.6

As discussed further below, the contractor will use procedures that avoid the identification of study participants to CRAs and data furnishers. The pilot study will not create any hypothetical disputes, and it will use procedures that regularly pertain to credit reporting activities.

Some of the commenters enthusiastically support the proposed pilot study.7 Other commenters stated that, because they support a study of accuracy and completeness, they want more information about the pilot study.8

Several of the commenters are concerned about the purpose of the pilot study. Springboard (at 1-2) summarizes the focus of the proposed pilot study as “gauging how difficult it is for people to obtain, understand, and correct inaccurate information in their credit reports on a ‘do-it-yourself’ basis;” Springboard further fears that the goal of the pilot study is to conclude that the “do-it-yourself model” is adequate “as is.” In the opposite direction, industry representatives have expressed the fear to FTC staff that the pilot study may be designed to conclude that consumers should generally have expert assistance made available to them in reviewing a credit report. Both of these fears express misunderstandings about the purpose of the pilot study. The pilot study is not intended to replicate normal circumstances under which consumers generally review their credit reports; nor is it intended to evaluate the adequacy or complexity of the dispute process. The purpose of the pilot study is to evaluate the feasability of involving consumers in a review of the accuracy and completeness of the information in their credit reports. The scrutiny applied to the reports of study participants, via the help of an expert coach, would not at all be indicative of a consumer's normal experience in reviewing a credit report. The FTC recognizes that consumers often are not familiar with credit reporting procedures and may have difficulties in understanding a credit report (which may be partly due to a consumer's own misconceptions). The pilot study seeks to evaluate the feasibility of obtaining information pertinent to credit report accuracy by directly involving consumers under expert assistance. This evaluation is a first step in designing a more comprehensive study of credit report inaccuracies.

Several commenters are concerned that the FTC is apparently doing just “one” pilot study, further stating that a single pilot study cannot adequately address the issues to be dealt with in preparation for a national study.9 The Commission has stated in its December 2004 Report (at 35) that several pilot studies may be needed in preparation for a national study.

Privacy Rights Clearinghouse (“PRC”) (at 2) asks whether measures are in place to mask the identity of participants from both CRAs and data furnishers. The study is designed to use only the normal business procedures of the CRAs and data furnishers, and therefore masks the identity of consumers as study participants. First, participants will request their credit reports through the Web site http://www.myfico.com. For the CRAs that receive and process these requests, they will be identical in form to thousands of requests that are regularly processed; indeed, nothing in the nature of the request identifies the consumer as a study participant. Second, any follow-up contact by study participants with a CRA or data furnisher will be through the normal process used by consumers when clarifying or disputing information in their credit reports. Thus, CRAs and data furnishers will not be able to identify communications from study participants. In addition, each member of the contractor consortium has signed an agreement not to disclose the identity of any study participant to parties other than the FTC.

PRC questions whether participant's credit reports will be agency records subject to the Privacy Act, 5 U.S.C. 552a, and, if so, whether participants will receive any notice required by that Act. To the extent, if any, that the Act applies, the reports would be part of the agency's existing system for legal, investigational and other records,10 and, whether or not the Act applies, the FTC intends to include a notice consistent with the Act on any information collection forms (e.g., the letter sent by the FTC to potential study participants). PRC has also questioned whether there will be any express agreement to prohibit secondary uses of the collected data by the contractor. The letter to potential participants will inform them that the contractor has been permitted to collect the data only for the purpose of pilot study, and that other uses by the contractor have been prohibited.

Industry commenters such as the Consumer Data Industry Association (“CDIA”), Experian, Equifax, TransUnion, and the Coalition to Implement the Fact Act (“Coalition”), raise a number of other questions and concerns. They ask what definition the FTC will use for the “accuracy and completeness” of credit reports in the pilot study, as well as for a more comprehensive study. The pilot study is not employing a specific definition of accuracy and completeness.11 Instead, the pilot study is assessing a potential methodology for directly involving consumers in a review of the information in their credit reports. The pilot study will list possible outcomes of the items reviewed on credit reports, as follows:

TransUnion (at 3) states that “[it] is particularly concerned that the FTC has not indicated how it will evaluate the completeness of consumer report information, nor can the FTC's intent be inferred from the Notice.” Although the pilot study is not measuring incompleteness, one of the outcomes of the review will be “data item(s) not present on the report.” The FTC staff recognizes the different reporting cycles of data furnishers and also the voluntary basis on which information is provided to a CRA. Hence, there may be several possible explanations for why an anticipated item is not on a particular credit report.12 If the results of the pilot study indicate that its methodology is inadequate to study incompleteness, other methods will be considered.

Regarding the pilot study's methodology, Equifax asks (at 17) what the FTC means by “informal contact.” 13 For the purpose of the pilot study, “informal contact” means any communication between a consumer and CRA or data furnisher that does not involve a formal FCRA dispute. From data presented in testimony before Congress by the Consumer Data Industry Association, it can be inferred that a significant number of participants in the pilot study will use informal contact to resolve discrepancies in their credit report.14

Some commenters ask how the pilot study will resolve disputed items about which the consumer and data furnisher simply disagree.15 The FTC staff does not intend that the pilot study resolve such items, because this study will not be used to draw conclusions about credit report accuracy. Thus, wherever appropriate, the contractor will report that there was no agreement on certain disputed items. Following completion of the pilot study, the FTC staff plans to evaluate the number and potential seriousness of unresolved disagreements in an effort to determine whether there is an appropriate methodology to assess them in a nationwide study.16

Industry commenters believe that an assessment of credit report accuracy should evaluate the materiality of errors, i.e., the impact of errors in the context of decisions made by the grantors of credit.17 As a precursor to the possible study of materiality in nationwide survey, the contractor will determine the change in a commonly used credit score (the FICO score) whenever credit report information is changed by the mutual consent of the consumer and the relevant party (CRA or data furnisher).18 Some commenters are concerned that the pilot study only uses one credit score.19 Although the FTC staff acknowledges that there are a variety of credit scores, i.e., different scoring techniques used by the industry, that may be relevant in assessing the materiality of errors, the current pilot study is not making such an assessment because no statistically valid conclusions can be drawn from the small sample of participants.

Industry commenters question why the FTC may permit an “over-sampling” of low credit scores in the pilot study, and is thus likely to have a similar procedure for a national study.20 Although over-sampling is not important for this pilot study (it involves only a small sample, and no statistical conclusions will be drawn from this study), the sampling methodology is potentially important for a nationwide study. One of the goals of the nationwide study under consideration, however ultimately executed, would be to categorize errors by their type and seriousness in terms of consumer harm (FTC December 2004 Report at 34.) In relation to this goal there is a recognized statistical procedure, called “stratified sampling,” that divides a population into an array of “strata” and knowingly over-samples certain strata.21 A reason for over-sampling consumers that have low credit scores is that such people are likely to experience greater harm if their credit reports have errors contributing to the low score.

Industry commenters also express a number of additional concerns about the nationwide survey under consideration, which they assert should be addressed by the FTC before the pilot study begins. The FTC staff believes it is premature to resolve these concerns now because the pilot study will be used to assess the utility, costs, and design of the potential nationwide survey.

Consumer participation involves the initial screening and any subsequent time spent to understand, to review, and if deemed necessary, to dispute information in credit reports. The FTC staff estimates that up to 225 consumers may need to be screened through telephone interviews and that each screening interview may last up to 10 minutes, which totals up to 38 hours (225 contacts × (1/6) hour per contact).

With respect to the hours spent by study participants, in some cases the relative simplicity of a credit report may render little need for review, and the consumer's participation may only be an hour. For reports that involve difficulties, it may require a number of hours for the participant to be educated about the report and to resolve any disputed items. For items that are disputed formally, the participant must submit a dispute form, identify the nature of the problem, present verification from the participant's own records to the extent possible, and, upon furnisher response, perhaps submit follow-up information. All participants will have expert assistance available to them, and staff estimates that, on average, approximately 5 hours would be spent per participant, resulting in a total of 175 hours (5 hours × 35 participants).22 Total burden hours are thus approximately 200 hours (38 hours for screening plus 175 study participant hours).

Participation by the consumer is voluntary. All participants will benefit by receiving assistance from the contractor in reviewing their credit reports, and identifying and resolving any errors. No monetary costs are involved for the consumer; specifically, participants will not pay for their credit reports.

Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 of the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for May 2, 2005), on the World Wide Web, at http://www.ftc.gov/os/2005/05/index.htm. A paper copy can be obtained from the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., Washington, DC 20580, either in person or by calling (202) 326-2222.

Public comments are invited, and may be filed with the Commission in either paper or electronic form. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before the date specified in the DATES section.

The Federal Trade Commission has accepted, subject to final approval, an agreement containing a proposed Consent Order with New Millennium Orthopaedics, LLC (“NMO”), Orthopaedic Consultants of Cincinnati, Inc., dba Wellington Orthopaedics & Sports Medicine (“Wellington”), and Beacon Orthopaedics & Sports Medicine, Ltd. (“Beacon”) (collectively, “Respondents”). The agreement settles charges that Wellington and Beacon, through NMO, violated Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45, by orchestrating and implementing agreements between competing orthopaedic physician groups to fix prices charged to health plans, and to refuse to deal with such health plans except on collectively-determined terms. The proposed Consent Order has been placed on the public record for 30 days to receive comments from interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission will review the agreement and the comments received, and will decide whether it should withdraw from the agreement or make the proposed Consent Order final.

The purpose of this analysis is to facilitate public comment on the proposed Consent Order. The analysis is not intended to constitute an official interpretation of the agreement and proposed Consent Order or to modify their terms in any way. Further, the proposed Consent Order has been entered into for settlement purposes only and does not constitute an admission by any respondent that said respondent violated the law or that the facts alleged in the Complaint (other than jurisdictional facts) are true.

The allegations of the Complaint are summarized below.

NMO is a single-specialty independent practice association consisting of two orthopaedic physician groups, Wellington and Beacon. Both Wellington, a twenty-two member orthopaedic physician group, and Beacon, a ten-member orthopaedic group, provide orthopaedic physician services, including surgical and non-surgical services, in the Cincinnati, Ohio area.

In 2002, Wellington and Beacon formed NMO to act as their negotiating agent with health plans. Through NMO, they agreed on the prices to propose to health plans in negotiating their reimbursement rates. Beginning in August, 2002, representatives of NMO sent letters to representatives of the four major health plans in the Cincinnati area. They proposed an arrangement that would implement a guaranteed base fee schedule and a bonus scheme. Under the bonus scheme, all NMO physicians would receive higher reimbursement rates for all services provided that NMO, as a whole, met established performance targets for increasing the percentage of surgical procedures performed at ambulatory surgery centers (“ASCs”).

The ASC bonus scheme solely targeted outpatient surgery, which was only one aspect of the practices of some NMO physicians. Under the ASC bonus scheme, the measured change in the physicians' behavior was limited to the movement of patients to ASCs. Non-surgeon members of NMO, who accounted for approximately 30% of NMO physicians, lacked the ability to change practice patterns related to ASCs. Thus, the ASC bonus scheme did not act as a substantial incentive for all of the NMO physicians to work together to achieve significant efficiencies for all of their services, which had jointly negotiated rates.

The Complaint alleges that NMO performed no role in enhancing the ability of the physicians to increase the number of procedures performed at ASCs instead of at hospitals. NMO did not implement any enforcement mechanisms to monitor and control the physicians' compliance with the bonus scheme. The bonus scheme, alone, did not affect the NMO physicians' ability to work together to control costs or to improve quality for all jointly negotiated services, including office-based, non-surgical procedures. To a large extent, the scheme was a reward for the physicians' pre-existing practice patterns. For example, prior to signing the agreement, Wellington physicians performed over 50% of their procedures at ASCs without the incentive of the bonus scheme.

Only one health plan agreed to NMO's terms. Nonetheless, NMO continued to attempt to negotiate agreements with the other health plans into 2004.

NMO also enforced its joint negotiation efforts with one health plan by a concerted refusal to deal in the absence of contract terms agreeable to NMO. In response to one health plan's refusal to negotiate with NMO during the original negotiations in 2002, NMO's Board agreed that both Wellington and Beacon should terminate their existing, separate agreements with the health plan in order to seek contracts with the health plan through NMO. Both groups subsequently jointly terminated their individual agreements with the health plan at the direction of NMO's Board.

Respondents' collective negotiation of fees and other competitively significant contract terms was not reasonably necessary to achieving any efficiency-enhancing integration. Thus, they violated Section 5 of the FTC Act by orchestrating agreements between competing orthopaedic physician groups to fix prices with health plans, and by refusing to deal with one of the health plans that would not meet those terms.

The proposed Consent Order is designed to prevent the continuance and recurrence of the illegal conduct alleged in the complaint while, allowing Wellington and Beacon to engage in legitimate, joint conduct.

The proposed Consent Order's specific provisions are summarized below.

Paragraph II.A prohibits Respondents from entering into or facilitating agreements between or among any health care providers: (1) To negotiate on behalf of any physician with any payor; (2) to deal, refuse to deal, or threaten to refuse to deal with any payor; (3) regarding any term, condition, or requirement upon which any physician deals, or is willing to deal, with any payor, including, but not limited to price terms; or (4) not to deal individually with any payor, or not to deal with any payor through any arrangement other than Respondent NMO.

The other parts of Paragraph II reinforce these general prohibitions. Paragraph II.B prohibits the Respondents from facilitating exchanges of information between health care providers concerning whether, or on what terms, to contract with a payor. Paragraph II.C bars attempts to engage in any action prohibited by Paragraph II.A or II.B, and Paragraph II.D proscribes encouraging, suggesting, advising, pressuring, inducing, or attempting to induce any person to engage in any action that would be prohibited by Paragraphs II.A. through II.C.

As in other Commission orders addressing health care providers' collective bargaining with health care purchasers, certain kinds of agreements are excluded from the general bar on joint negotiations. Paragraph II does not preclude Wellington and Beacon from engaging in conduct that is reasonably necessary to form or participate in legitimate “qualified risk-sharing” or “qualified clinically-integrated” joint arrangements, as defined in the proposed Consent Order. Also, Paragraph II would not bar agreements that only involve physicians who are part of the same medical group practice, defined in Paragraph I.E, because it is intended to reach agreements among independent competitors.

Paragraph III requires the dissolution of NMO.

Paragraph IV contains filing and notification requirements related to the dissolution of NMO.

Paragraph V applies only to Wellington and Beacon. It contains notification requirements for Wellington and Beacon. Paragraph V.A requires Wellington and Beacon to send a copy of the Complaint and Consent Order to their physician members who participated in NMO, their management and staff who had any responsibility regarding NMO, and any payors who communicated with NMO, or with whom NMO communicated, with regard to any interest in contracting for physician services. Paragraph V.A.3 also requires Wellington and Beacon to send these payors notice of their right to terminate their agreements with Wellington and Beacon.

Paragraph V.B allows for contract termination if a payor voluntarily submits a request to Wellington and Beacon to terminate its contract. Pursuant to such a request, Paragraph V.B requires Wellington and Beacon to terminate, without penalty, any payor contracts that they had entered into during the collusive period. This provision is intended to eliminate the effects of NMO's joint, price setting behavior. Paragraph V.C requires that Wellington and Beacon each send a copy of any payor's request for termination to every physician who participates in each group.

Paragraph V.D contains notification provisions relating to future contact with physicians, payors, management and staff of each group. Paragraph V.D requires Wellington and Beacon to distribute a copy of the Complaint and Consent Order to each physician who begins participating in each group; each payor who contacts each group regarding the provision of physician services; and each person who becomes an officer, director, manager, or employee of each group for three years after the date on which the Consent Order becomes final.

Paragraph V.E requires Wellington and Beacon to publish a copy of the Complaint and Consent Order, for three years, in any official publication that they send to their participating physicians.

Paragraphs VI-VIII impose various obligations on Wellington and Beacon to report or provide access to information to the Commission to facilitate monitoring their compliance with the Consent Order.

The proposed Consent Order will expire in 20 years from the date it is issued.