Section 203(c) of the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627), as amended, directs and authorizes the Secretary of Agriculture “To develop and improve standards of quality, condition, quantity, grade and packaging and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities. AMS makes copies of official standards available upon request. The United States Standards for Grades of Fruits and Vegetables not connected with Federal Marketing Orders or U.S. Import Requirements no longer appear in the Code of Federal Regulations, but are maintained by USDA, AMS, Fruit and Vegetable Programs.

AMS is revising the United States Standards for Grades of Beet Greens using the procedures that appear in Part 36, Title 7 of the Code of Federal Regulations (7 CFR part 36). These standards were last revised June 1, 1959.

Prior to undertaking detailed work to develop a proposed revision to the standards, AMS published a notice on February 19, 2008, in the Federal Register (73 FR 9086) soliciting comments for possible revisions to the United States Standards for Grades of Beet Greens. The proposal would remove the “Unclassified” category from the standards. No comments were received regarding this change.

AMS would eliminate the unclassified category. This category is being removed from all standards when they are revised. This category is not a grade and only serves to show that no grade has been applied to the lot. It is no longer considered necessary.

AMS is seeking comments regarding how this revision will affect the marketing of beet greens. Additionally, AMS is interested in learning the costs and/or benefits to the industry by revising the United States Standards for Grades of Beet Greens.

The official grades of beet greens covered by these standards are determined by the procedures set forth in the Regulations Governing Inspection, Certification and Standards of Fresh Fruits, Vegetables and Other Products (7 CFR 51.1 to 51.62).

This notice provides for a 60-day comment period for interested parties to comment on the proposed revisions to the standards.

On October 29, 2002, the Department published in the Federal Register an antidumping duty order on carbon and certain alloy steel wire rod (steel wire rod) from Canada. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Carbon and Certain Alloy Steel Wire Rod from Canada , 67 FR 65944 (October 29, 2002) (Order). On October 1, 2007, the Department issued a notice of opportunity to request an administrative review of this order for the POR. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review , 72 FR 55741 (October 1, 2007). On October 31, 2007, Mittal Canada Inc. (formerly Ispat Sidbec Inc.) of Canada (Mittal Canada) requested an administrative review of its entries that were subject to the antidumping duty order for this period. On October 31, 2007, the Department received a request from petitioners (ISG Georgetown Inc., Gerdau Ameristeel U.S. Inc., Nucor Steel Connecticut Inc., Keystone Consolidated Industries, Inc., and Rocky Mountain Steel Mills) for a review of Ivaco, Inc. and Ivaco Rolling Mills L.P. (which petitioners referred to collectively as “Ivaco”). On that same date, Ivaco Rolling Mills 2004 L.P. and Sivaco Ontario, a division of Sivaco Wire Group 2004 L.P., also requested a review of their entries. 1 On November 26, 2007, the Department published the notice of initiation of this antidumping duty administrative review. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part , 72 FR 65938 (November 26, 2007). 2 Mittal Canada subsequently withdrew its request for review, and the Department rescinded the administrative review with respect to Mittal Canada. See Carbon and Certain Alloy Steel Wire Rod from Canada: Notice of Partial Rescission of Antidumping Duty Administrative Review , 72 FR 73321 (December 27, 2007).

Ivaco submitted a response to Section A of the Department's questionnaire on December 28, 2007, and a response to Sections B, C, and D of the Department's questionnaire on January 16, 2008. In response to the Department's supplemental questionnaire dated February 15, 2008, Ivaco submitted a supplemental response for Section A on March 21, 2008. In response to the Department's supplemental questionnaire dated March 13, 2008, Ivaco submitted a supplemental response for Sections A, B, C, and D on April 22, 2008.

The Department is considering IRM and Sivaco Ontario as part of the same entity (referred to collectively in this notice as “Ivaco”) because of common ownership, consistent with the Department's treatment of these companies in previous proceedings. See , e.g. , Carbon and Certain Alloy Steel Wire Rod from Canada: Final Results of Antidumping Duty Administrative Review , 73 FR 26958 (May 12, 2008), and Notice of Final Results of Antidumping Duty Administrative Review: Carbon and Certain Alloy Steel Wire Rod from Canada , 72 FR 26591 (May 10, 2007).

The merchandise subject to this order is certain hot-rolled products of carbon steel and alloy steel, in coils, of approximately round cross section, 5.00 mm or more, but less than 19.00 mm, in solid cross-sectional diameter.

Specifically excluded are steel products possessing the above-noted physical characteristics and meeting the Harmonized Tariff Schedule of the United States (“HTSUS”) definitions for (a) Stainless steel; (b) tool steel; (c) high nickel steel; (d) ball bearing steel; and (e) concrete reinforcing bars and rods. Also excluded are (f) free machining steel products (i.e., products that contain by weight one or more of the following elements: 0.03 percent or more of lead, 0.05 percent or more of bismuth, 0.08 percent or more of sulfur, more than 0.04 percent of phosphorus, more than 0.05 percent of selenium, or more than 0.01 percent of tellurium).

Also excluded from the scope are 1080 grade tire cord quality wire rod and 1080 grade tire bead quality wire rod. Grade 1080 tire cord quality rod is defined as: (i) Grade 1080 tire cord quality wire rod measuring 5.0 mm or more but not more than 6.0 mm in cross-sectional diameter; (ii) with an average partial decarburization of no more than 70 microns in depth (maximum individual 200 microns); (iii) having no non-deformable inclusions greater than 20 microns and no deformable inclusions greater than 35 microns; (iv) having a carbon segregation per heat average of 3.0 or better using European Method NFA 04-114; (v) having a surface quality with no surface defects of a length greater than 0.15 mm; (vi) capable of being drawn to a diameter of 0.30 mm or less with 3 or fewer breaks per ton, and (vii) containing by weight the following elements in the proportions shown: (1) 0.78 percent or more of carbon, (2) less than 0.01 percent of aluminum, (3) 0.040 percent or less, in the aggregate, of phosphorus and sulfur, (4) 0.006 percent or less of nitrogen, and (5) not more than 0.15 percent, in the aggregate, of copper, nickel and chromium.

Grade 1080 tire bead quality rod is defined as: (i) Grade 1080 tire bead quality wire rod measuring 5.5 mm or more but not more than 7.0 mm in cross-sectional diameter; (ii) with an average partial decarburization of no more than 70 microns in depth (maximum individual 200 microns); (iii) having no non-deformable inclusions greater than 20 microns and no deformable inclusions greater than 35 microns; (iv) having a carbon segregation per heat average of 3.0 or better using European Method NFA 04-114; (v) having a surface quality with no surface defects of a length greater than 0.2 mm; (vi) capable of being drawn to a diameter of 0.78 mm or larger with 0.5 or fewer breaks per ton; and (vii) containing by weight the following elements in the proportions shown: (1) 0.78 percent or more of carbon, (2) less than 0.01 percent of soluble aluminum, (3) 0.040 percent or less, in the aggregate, of phosphorus and sulfur, (4) 0.008 percent or less of nitrogen, and (5) either not more than 0.15 percent, in the aggregate, of copper, nickel and chromium (if chromium is not specified), or not more than 0.10 percent in the aggregate of copper and nickel and a chromium content of 0.24 to 0.30 percent (if chromium is specified).

For purposes of the grade 1080 tire cord quality wire rod and the grade 1080 tire bead quality wire rod, an inclusion will be considered to be deformable if its ratio of length (measured along the axis—that is, the direction of rolling—of the rod) over thickness (measured on the same inclusion in a direction perpendicular to the axis of the rod) is equal to or greater than three. The size of an inclusion for purposes of the 20 microns and 35 microns limitations is the measurement of the largest dimension observed on a longitudinal section measured in a direction perpendicular to the axis of the rod.

The designation of the products as “tire cord quality” or “tire bead quality” indicates the acceptability of the product for use in the production of tire cord, tire bead, or wire for use in other rubber reinforcement applications such as hose wire. These quality designations are presumed to indicate that these products are being used in tire cord, tire bead, and other rubber reinforcement applications, and such merchandise intended for the tire cord, tire bead, or other rubber reinforcement applications is not included in the scope. However, should petitioners or other interested parties provide a reasonable basis to believe or suspect that there exists a pattern of importation of such products for other than those applications, end-use certification for the importation of such products may be required. Under such circumstances, only the importers of record would normally be required to certify the end use of the imported merchandise.

All products meeting the physical description of subject merchandise that are not specifically excluded are included in this scope. The products subject to this order are currently classifiable under subheadings 7213.91.3011, 7213.91.3015, 7213.91.3092, 7213.91.4500, 7213.91.6000, 7213.99.0030, 7213.99.0090, 7227.20.0000, 7227.90.6010, and 7227.90.6080 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive.

For the price to the United States, we used, as appropriate, export price (EP) or constructed export price (CEP), as defined in sections 772(a) and 772(b) of the Tariff Act of 1930, as amended (the Act), respectively. Section 772(a) of the Act defines EP as the price at which the subject merchandise is first sold before the date of importation by the producer or exporter outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under section 772(c) of the Act.

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

Ivaco made both EP and CEP transactions. We calculated an EP for sales where the merchandise was sold directly by Ivaco to the first unaffiliated purchaser in the United States prior to importation, and CEP was not otherwise warranted based on the facts on the record. We calculated a CEP for sales made by Ivaco after importation to the United States (where the merchandise was located at an unaffiliated processor facility or unaffiliated distributor warehouse at the time of sale).

For EP sales, we made additions to the starting price (gross unit price), where appropriate, for freight revenue received by Ivaco (reimbursement by customers for freight charges paid by Ivaco) and for billing errors (debit-note price adjustments made by Ivaco), and deductions, where appropriate, for billing adjustments (including credit-note price adjustments made by Ivaco), early payment discounts and rebates, and movement expenses in accordance with section 772(c)(2)(A) of the Act. Movement expenses included inland freight, warehousing expenses, and brokerage fees.

For CEP sales, we made adjustments to the starting price as for the EP transactions described above. However, consistent with our treatment of these expenses in recent administrative reviews, we re-categorized freight from one unaffiliated processor in the United States to another unaffiliated processor in the United States as a further manufacturing cost. See , e.g. , Notice of Final Results of Antidumping Duty Administrative Review: Carbon and Certain Alloy Steel Wire Rod from Canada , 71 FR 3822 (January 24, 2006) and accompanying Issues and Decision Memorandum at Comment 1. In addition, in accordance with section 772(d)(1) and (2) of the Act, we deducted from the starting price those selling expenses incurred in selling the subject merchandise in the United States, including direct selling expenses (imputed credit expenses and warranty expenses), imputed inventory carrying costs, and further manufacturing. Finally, in accordance with section 772(d)(3) of the Act, we deducted an amount of profit allocated to the expenses deducted under sections 772(d)(1) and (2) of the Act. See Memorandum from Steve Bezirganian, Analyst, “Analysis Memorandum for Ivaco Rolling Mills 2004 L.P. and Sivaco Ontario, a division of Sivaco Wire Group 2004 L.P.: Carbon and Certain Alloy Steel Wire Rod from Canada (A-122-840), October 1, 2006-September 30, 2007” (July 2, 2008) (Ivaco Analysis Memorandum).

Section 773(a)(1) of the Act directs that NV be based on the price at which the foreign like product is sold in the home market, provided the merchandise is sold in sufficient quantities (or value, if quantity is inappropriate) and that there is not a particular market situation that prevents a proper comparison with sales to the United States. The statute contemplates that quantities (or value) will normally be considered insufficient if they are less than five percent of the aggregate quantity (or value) of sales of the subject merchandise to the United States. See section 773(a)(1) of the Act.

We found that Ivaco had a viable home market for steel wire rod because its home market sales, by quantity, exceeded the five percent threshold. See Ivaco Analysis Memorandum. Ivaco submitted home market sales data for purposes of the calculation of NV. In deriving NV, we made adjustments as detailed in the “Calculation of Normal Value Based on Comparison Market Prices” section below.

Because we disregarded below-cost sales in the most recently completed segment of the proceeding, we had reasonable grounds to believe or suspect that home market sales of the foreign like product by the respondent were made at prices below the cost of production (COP) during the POR, in accordance with section 773(b)(2)(A) of the Act. See Notice of Preliminary Results of Antidumping Duty Administrative Review and Notice of Initiation of Changed Circumstances Review: Carbon and Certain Alloy Steel Wire Rod from Canada , 71 FR 64921, 64924 (November 6, 2006) (unchanged in final results, 72 FR 26591 (May 10, 2007)). Therefore, we required Ivaco to file a response to Section D of the Department's Questionnaire.

In accordance with section 773(b)(3) of the Act, we calculated the weighted-average COP by model based on the sum of materials, fabrication, and general and administrative (G&A) expenses.

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

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

We determined NV for Ivaco as follows. We made adjustments to the gross price to account for billing adjustments, and deducted discounts and rebates. We deducted home market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act. We also deducted home market movement expenses pursuant to sections 773(a)(6)(B) of the Act. In addition, we made adjustments for differences in circumstances of sale (COS) pursuant to section 773(a)(6)(C)(iii) of the Act. Specifically, we made adjustments for Ivaco's EP transactions by deducting direct selling expenses incurred for home market sales ( i.e. , credit expenses and warranty expenses) and adding U.S. direct selling expenses ( i.e. , credit expenses and warranty expenses). See section 773(a)(6)(C)(iii) of the Act, and 19 CFR 351.410(c). Where we compared Ivaco's U.S. sales to home market sales of merchandise, we made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act.

The respondent reported sales of the foreign like product to affiliated customers. To test whether these sales to affiliated customers were made at arm's length, where possible, we compared the prices of sales to affiliated and unaffiliated customers, net of all movement charges, direct selling expenses, and packing. Where the price to that affiliated party was, on average, within a range of 98 to 102 percent of the price of the same or comparable merchandise sold to the unaffiliated parties at the same level of trade, we determined that the sales made to the affiliated party were at arm's length. See Modification Concerning Affiliated Party Sales in the Comparison Market , 67 FR 69186 (November 15, 2002). Ivaco's sales to affiliated parties that were determined not to be at arm's length were disregarded in our comparison to U.S. sales.

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

Section 773(e)(1) of the Act provides that CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise plus amounts for selling, general, and administrative expenses (SG&A), profit, and U.S. packing expenses. We calculated the cost of materials and fabrication based on the methodology described in the COP section of this notice. We based SG&A and profit on the actual amounts incurred and realized by the respondent in connection with the production and sale of the foreign like product in the ordinary course of trade, for consumption in the comparison market, in accordance with section 773(e)(2)(A) of the Act.

We made adjustments to CV for differences in COS in accordance with section 773(a)(8) of the Act and 19 CFR 351.410. For CEP and EP comparisons, we deducted direct selling expenses incurred for home market sales ( i.e. , credit expenses and warranty expenses). See Section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(c). For EP sales, we added U.S. direct selling expenses ( i.e. , credit expenses and warranty expenses) to the NV.

In accordance with section 773(a)(1)(B) of the Act, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the EP and CEP sales, to the extent practicable. When there are no sales at the same LOT, we compare U.S. sales to comparison market sales at a different LOT. When NV is based on CV, the NV LOT is that of the sales from which we derive SG&A expenses and profit.

Pursuant to 19 CFR 351.412(c)(2), to determine whether comparison market sales were at a different LOT, we examine stages in the marketing process and selling functions along the chain o2f distribution between the producer and the unaffiliated (or arm's-length) customers. The Department identifies the LOT based on: the starting price or constructed value (for normal value); the starting price (for EP sales); and the starting price, as adjusted under section 772(d) of the Act (for CEP sales). If the comparison-market sales were at a different LOT and the differences affect price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we will make an LOT adjustment under section 773(a)(7)(A) of the Act.

Finally, if the NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the differences in LOT between NV and CEP affected price comparability, we will grant a CEP offset, as provided in section 773(a)(7)(B) of the Act.

Ivaco reported home market sales in two channels of distribution: (1) Direct sales by IRM and (2) direct sales by Sivaco Ontario. 3 Ivaco reported U.S. EP sales in two channels of distribution: (1) direct sales by IRM to U.S. customers and (2) direct sales by Sivaco Ontario to U.S. customers. Finally, Ivaco reported U.S. CEP sales in one channel of distribution: Direct sales by IRM to U.S. customers made from the facilities of unaffiliated U.S. processors or unaffiliated U.S. warehouses. Ivaco claims that all of IRM's home market and U.S. sales are at one LOT, and that all of Sivaco's home market and U.S. sales are at another, more advanced, LOT. Ivaco states that the Department should calculate a LOT adjustment when sales by IRM are matched to sales by Sivaco. Ivaco also states that, if the Department determines that IRM's U.S. CEP sales are at a different LOT from all Ivaco's home market sales, the Department should grant a CEP offset.

To determine whether there were multiple LOTs, we examined the selling functions performed by Ivaco for its customers. We found few differences in selling functions across the various channels of distribution and, based on this examination, we preliminarily determine that Ivaco sold merchandise at one LOT in both markets. See the Memorandum from Steve Bezirganian, “Level of Trade Analysis for Ivaco Rolling Mills 2004 L.P. and Sivaco Ontario, a division of Sivaco Wire Group 2004 L.P.: Carbon and Certain Alloy Steel Wire Rod from Canada (A-122-840), October 1, 2006—September 30, 2007” (July 2, 2008). Consequently, there is no basis for calculating a LOT adjustment or a CEP offset.

We made currency conversions into U.S. dollars in accordance with section 773A of the Act, based on exchange rates in effect on the date of the U.S. sale, as provided by the Federal Reserve Bank.

As a result of this review, we preliminarily determine the following weighted-average margin exists for the period October 1, 2006, through September 30, 2007:

In accordance with 19 CFR 351.224(b), the Department will disclose calculations performed within five days of publication of this notice. Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results. See 19 CFR 351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments, may be filed no later than five days after submission of case briefs. See 19 CFR 351.309(d). Parties who submit arguments are requested to submit with the argument: (1) A statement of the issues; (2) a brief summary of the arguments; and (3) a table of authorities. Further, parties submitting written comments should provide the Department with an additional copy of the public version of any such comments on diskette. An interested party may request a hearing within 30 days of publication of these preliminary results. See 19 CFR 351.310(c). Any hearing, if requested, will be held two days after the date for submission of rebuttal briefs, or the first working day thereafter. The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results, pursuant to Section 751(a)(3) of the Act.

Upon completion of this administrative review, pursuant to 19 CFR 351.212(b), the Department will calculate an assessment rate on all appropriate entries. The Department will issue assessment instructions directly to CBP on or after 41 days following the publication of the final results of review, pursuant to 19 CFR 356.8(a). We will calculate importer-specific duty assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales for that importer.

The Department clarified its “automatic assessment” regulation on May 6, 2003. See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) ( Assessment Policy Notice ). This clarification will apply to entries of subject merchandise during the period of review produced by companies included in these final results where the reviewed companies did not know the merchandise it sold to the intermediary ( e.g. , a reseller, trading company, or exporter) was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there was no rate calculated in this review for the intermediary involved in the transaction. See id., 68 FR at 23954.

The following deposit rates will be effective upon publication of the final results of this administrative review for all shipments of steel wire rod from Canada entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for Ivaco will be the rate established in the final results of this review, except if a rate is less than 0.5 percent, and therefore de minimis , the cash deposit will be zero; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) 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 8.11 percent, the all-others rate established in the LTFV investigation.

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

This notice 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 entities 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.

These preliminary results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

On June 24, 2005, the Department published in the Federal Register an antidumping duty order on chlorinated isos from Spain. See Chlorinated Isocyanurates from Spain: Notice of Antidumping Duty Order , 70 FR 36562 (June 24, 2005). In response to timely requests filed by Petitioners and Aragonesas, the Department published a notice of initiation of an administrative review. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part , 72 FR 41057 (July 26, 2007). The POR for this administrative review is June 1, 2006 through May 31, 2007.

On August 24, 2007, the Department issued an antidumping duty questionnaire to Aragonesas. On September 25, 2007, the Department received Aragonesas's response to section A of the antidumping questionnaire. On October 12, 2007, the Department received Aragonesas's response to sections B and C of the antidumping questionnaire. On October 23, 2007, the Department received Aragonesas's response to section D of the antidumping questionnaire. We issued supplemental questionnaires to Aragonesas on November 19, 2007, December 3, 2007, January 3, 2008, and May 15, 2008. Aragonesas filed a timely response to each questionnaire.

The Department extended the time limit for the preliminary results by 120 days. See Chlorinated Isocyanurates from Spain: Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Review , 73 FR 12079 (March 6, 2008).

The products covered by this order 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 order 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”). 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 order is dispositive.

Aragonesas reported invoice date as the date of sale for U.S. sales. The Department's regulations state that “{i}n identifying the date of sale of the subject merchandise or foreign like product, the Secretary normally will use the date of invoice, as recorded in the exporter or producer's records kept in the ordinary course of business. However, the Secretary may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale.” See 19 CFR 351.401(i). We examined the questionnaire responses and the sales documentation placed on the record by Aragonesas, and determine that invoice date is the appropriate date of sale in both the U.S. and home markets.

However, in accordance with the Department's practice, whenever shipment date precedes invoice date, we used shipment date as the date of sale. See , e.g. , Stainless Steel Sheet and Strip in Coils from the Republic of Korea; Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review , 71 FR 18074, 18079-80 (April 10, 2006), remaining unchanged in Stainless Steel Sheet and Strip in Coils from the Republic of Korea; Final Results and Rescission of Antidumping Duty Administrative Review in Part , 72 FR 4486 (January 31, 2007); and Certain Steel Concrete Reinforcing Bars From Turkey; Final Results of Antidumping Duty Administrative Review and New Shipper Review and Determination To Revoke in Part , 72 FR 62630, (November 6, 2007) and accompanying Issues and Decision Memorandum at Issue 2, where the Department finds “that it is appropriate to use the earlier of shipment or invoice date as Colakoglu's and Habas' U.S. date of sale in the instant review, consistent with the date-of-sale methodology established in the previous review.” Accordingly, because Aragonesas has reported that shipment date for its U.S. sales always precedes invoice date, we are using shipment date as the date of sale for its U.S. sales.

To determine whether Aragonesas sold chlorinated isos in the United States at prices less than NV, the Department compared the export price (“EP”) of individual U.S. sales to the weighted-average NV of sales of the foreign like product made in the ordinary course of trade in a month contemporaneous with the month in which the U.S. sale was made. See section 777A(d)(2) of the Tariff Act of 1930 (“the Act”); see also section 773(a)(1)(B)(i) of the Act.

Section 771(16) of the Act defines foreign like product as merchandise that is identical or similar to subject merchandise and produced by the same person and in the same country as the subject merchandise. Thus, we considered all products covered by the scope of the order that were produced by the same person and in the same country as the subject merchandise, and sold by Aragonesas in the home market during the POR, to be foreign like products for the purpose of determining appropriate product comparisons to chlorinated isos sold in the United States.

In accordance with section 771(16) of the Act, the Department considered all products produced by the respondent, covered by the description in the “Scope of the Order” section above, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Pursuant to 19 CFR 351.414(e)(2), the Department compared U.S. sales made by Aragonesas to sales made in the home market within the contemporaneous window period, which extends from three months prior to the U.S. sale until two months after the sale. Where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, the Department compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, the Department used the physical characteristics determined by the Department and reported by Aragonesas, to match foreign like products to U.S. sales: chemical structure, free available chlorine content, physical form, and packaging.

The Department based the price of Aragonesas's U.S. sales on EP methodology, in accordance with section 772(a) of the Act, because the subject merchandise was sold directly by Aragonesas to the first unaffiliated purchaser in the United States prior to importation and the constructed export price (“CEP”) methodology was not otherwise indicated. We based EP on packed prices to unaffiliated purchasers in the United States. Aragonesas reported its U.S. sales on a delivered, duty paid basis. We made deductions from the starting price, where appropriate, for foreign inland freight, international freight, foreign inland and marine insurance, foreign and U.S. brokerage and handling, U.S. inland freight, commissions and U.S. duty, in accordance with section 772(c)(2) of the Act and 19 CFR 351.402.

After testing home market viability, whether home market sales to affiliates were at arm's-length prices, and whether home market sales were at below-cost prices, we calculated NV for Aragonesas as noted in the “Calculation of Normal Value Based on Comparison Market Prices” section of this notice.

In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, the Department compared Aragonesas's volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act. We excluded sales of merchandise that were not foreign like product for reasons that are of a business proprietary nature. See Memorandum to Barbara E. Tillman, Director, AD/CVD Operations, Office 6, “Whether Certain Merchandise Sold By Aragonesas Industrias y Energía, S.A. Constitutes Subject Merchandise and Foreign Like Product,” dated June 30, 2008 (“ Foreign Like Product Memorandum ”). Because Aragonesas's aggregate volume of home market sales of the foreign like product was greater than five percent of its aggregate volume of U.S. sales for the subject merchandise, the Department determined that its home market was viable.

The Department may calculate NV based on a sale to an affiliated party only if it is satisfied that the price to the affiliated party is comparable to the prices at which sales are made to parties not affiliated with the exporter or producer, i.e. , sales at arm's-length. See 19 CFR 351.403(c). Sales to affiliated customers for consumption in the home market that are determined not to be at arm's-length are excluded from our analysis. In this proceeding, Aragonesas reported sales of the foreign like product to affiliated customers. To test whether these sales were made at arm's-length prices, the Department compared the prices of sales of comparable merchandise to affiliated and unaffiliated customers, net of all movement charges, direct selling expenses, and packing. Pursuant to 19 CFR 351.403(c), and in accordance with the Department's practice, when the prices charged to an affiliated party were, on average, between 98 and 102 percent of the prices charged to unaffiliated parties for merchandise comparable to that sold to the affiliated party, we determined that the sales to the affiliated party were at arm's-length. See Antidumping Proceedings: Affiliated Party Sales in the Ordinary Course of Trade , 67 FR 69186, 69187 (November 15, 2002). Where Aragonesas's sales to affiliated home market customers did not pass the arm's-length test, we excluded those sales from our analysis. See section 773(b)(1) of the Act.

We calculated a margin for Delsa S.A. (Delsa) in Chlorinated Isocyanurates From Spain: Notice of Final Determination of Sales at Less Than Fair Value , 70 FR 24506, 24511 (May 10, 2005) (“ Final LTFV Determination ”), which was the most recently completed segment of this proceeding as of the publication date of the initiation of this review. In the Final LTFV Determination , the Department disregarded sales made at prices that were below COP. As a result, in accordance with section 773(b)(2)(A)(ii) of the Act, in this review the Department determined that there are reasonable grounds to believe or suspect that Aragonesas 1 sold the foreign like product at prices below the cost of producing the product during the instant POR. Accordingly, the Department required that Aragonesas provide a response to Section D of the questionnaire.

In accordance with section 773(b)(3) of the Act, for each product, sorted by control number, sold by Aragonesas during the POR, the Department calculated Aragonesas's weighted-average COP based on the sum of its materials and fabrication costs, plus amounts for general and administrative (“G&A”) expenses and interest expenses. See “Test of Comparison Market Sales Prices” section below for treatment of home market selling expenses. We relied on the COP information provided by Aragonesas in its questionnaire responses.

In order to determine whether sales were made at prices below the COP, on a product-specific basis, the Department compared Aragonesas's adjusted weighted-average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act. In accordance with sections 773(b)(1)(A) and (B) of the Act, in determining whether to disregard home market sales made at prices less than the COP, we examined whether such sales were made: (1) in substantial quantities within an extended period of time; and (2) at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. The prices were inclusive of billing adjustments and exclusive of any applicable movement charges, discounts and rebates, direct and indirect selling expenses, and packing expenses, revised where appropriate.

Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent's home market sales of a given product are at prices less than the COP, the Department does not disregard any below cost sales of that product, because the Department determines that in such instances the below cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, the Department disregards the below cost sales because they: (1) were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act; and (2) based on our comparison of prices to the weighted-average COPs for the POR, were at prices which would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act. Based on the results of our test, we found that, for certain products, more than 20 percent of Aragonesas's home market sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.

We based NV on the prices at which the foreign like product was first sold by Aragonesas for consumption in the home market, in the usual commercial quantities, in the ordinary course of trade, and, to the extent possible, at the same level of trade (“LOT”) as the comparison U.S. sale. We excluded sales of merchandise that were not foreign like product, for reasons that are of a business proprietary nature. See Foreign Like Product Memorandum . We calculated NV for Aragonesas using the reported gross unit prices to unaffiliated purchasers, or where appropriate, affiliated purchasers. Aragonesas reported that it offers its home market customers the following terms of delivery: carriage insurance paid, carriage paid, delivered duty paid, delivered duty unpaid, ex-works, and free carrier. Where appropriate, the Department made adjustments to the starting price for billing adjustments. We also deducted home market movement expenses pursuant to section 773(a)(6)(B) of the Act. We deducted, where appropriate, discounts and rebates, pursuant to section 773(a)(6)(B)(ii) of the Act. See Memorandum from Scott Lindsay, International Trade Compliance Analyst, to the File, “Calculation Memorandum for the Preliminary Results for Aragonesas Industrias y Energia S.A.,” dated June 30, 2008. We also made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise, in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. In addition, the Department made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for imputed credit and warranty expenses. We also deducted home market packing costs and added U.S. packing costs, in accordance with section 773(a)(6)(A) and (B) of the Act.

We also made the appropriate adjustment for commissions paid in the home market pursuant to 773(a)(6)(C)(iii) of the Act and19 CFR 351.410(c). We made adjustments, in accordance with 19 CFR 351.410(e), for indirect selling expenses incurred on comparison market or U.S. sales where commissions were granted on sales in one market but not in the other ( i.e. , commission offset). Specifically, where commissions are incurred in one market, but not in the other, we limited the amount of such allowance to the amount of either the indirect selling expenses incurred in the one market or the commissions allowed in the other market, whichever is less.

In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, the Department determines NV based on sales in the comparison market at the same LOT as the EP or CEP sales in the U.S. market (Aragonesas had only EP sales in the U.S. market). The NV LOT is based on the starting price of the sales in the comparison market. Where NV is based on CV, the Department determines the NV LOT based on the LOT of the sales from which the Department derives selling expenses, general and administrative expenses, and profit for CV, where possible. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Fresh Atlantic Salmon From Chile , 63 FR 2664-2670 (January 16, 1998) (unchanged in final determination, see Notice of Final Determination of Sales at Less Than Fair Value: Fresh Atlantic Salmon from Chile , 63 FR 31411, (June 9, 1998)). For EP sales, the U.S. LOT is based on the starting price of the sales to the U.S. market.

To determine whether NV sales are at a different LOT than EP sales, the Department examines stages in the marketing process and level of selling functions along the chain of distribution between the producer and the customer. See 19 CFR 351.412(c)(2). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stages of marketing. Id. ; see also Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate From South Africa , 62 FR 61731, 61732 (November 19, 1997). When the Department is unable to match U.S. sales to foreign like product sales in the comparison market at the same LOT as the EP sale, the Department may compare the U.S. sales to sales at a different LOT in the comparison market. In comparing EP sales at a different LOT in the comparison market, where the difference affects price comparability, as manifested by a pattern of consistent price differences between comparison-market sales at the NV LOT and comparison-market sales at the LOT of the export transaction, the Department makes an LOT adjustment under section 773(a)(7)(A) of the Act.

In this administrative review, Aragonesas had only EP sales in the U.S. market, thus the CEP methodology was not employed in this review. The Department obtained information from Aragonesas regarding the marketing stages involved in making the reported home market and U.S. sales, including a description of the selling activities performed for each channel of distribution. Aragonesas reported that it made EP sales in the U.S. market through a single distribution channel ( i.e. , sales to industrial users). Because all sales in the United States are made through a single distribution channel, we preliminarily determine that there is one LOT in the U.S. market. Aragonesas reported that it made sales in the home market through three channels of distribution ( i.e. , industrial customers, retail customers, and distributors). We compared the selling functions performed by Aragonesas for these three distribution channels and found that Aragonesas performed similar selling activities in the home market for the retail and distributor channels of distribution, and fewer selling activities for industrial home market customers. Thus, we preliminarily find that the retail and distributor channels of distribution constitute one NV LOT, while the channel of distribution for industrial customers is a second NV LOT. Moreover, we preliminarily find that the NV LOT for retail and industrial purchasers is at a more advanced stage than the NV LOT for industrial customers. See Memorandum from Scott Lindsay, International Trade Compliance Analyst, through Thomas Gilgunn, Program Manager, to Barbara E. Tillman, Director, AD/CVD Operations, Office 6, “Level of Trade Analysis: Aragonesas Industrias y Energía S.A. (Aragonesas),” dated June 30, 2008 ( LOT Memorandum ).

Finally, the Department compared the EP LOT to the two home market LOTs. The Department finds that selling activities performed by Aragonesas for industrial users in the U.S. market and home market are similar. Because selling activities for industrial users in the U.S. market (the only LOT in the U.S. market) and industrial users in the home market are similar, the Department preliminarily determines that, for sales to the U.S. and home markets during the POR that were made at this same LOT ( i.e. , sales to industrial users), the Department will not make an LOT adjustment to NV. However, where the Department matches sales between the U.S. and home markets where the home market sale is made at a more advanced LOT ( i.e. , retail and distributor channels of distribution) than the sale in the U.S. market, the Department will grant an LOT adjustment to NV because there is a consistent pattern of price differences. For additional details regarding the Department=s LOT analysis, see LOT Memorandum .

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

As a result of this review, the Department preliminarily determines that the weighted-average dumping margin for the period June 1, 2006, through May 31, 2007, is as follows:

The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rate for the company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent, and therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; (2) for previously reviewed or investigated companies not participating in 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 in this 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; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 24.83 percent, the “All Others” rate made effective by the LTFV investigation. See Final LTFV Determination . These requirements, when imposed, shall remain in effect until further notice.

Upon publication of the final results of this review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), the Department calculates an assessment rate for each importer of the subject merchandise for each respondent. In accordance with 19 CFR 351.212(b)(1), we will calculate importer-specific assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales and the total entered value of the examined sales. These rates will be assessed uniformly on all entries of the respective importers made during the POR if these preliminary results are adopted in the final results of review. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of the final results of this review.

The Department clarified its “automatic assessment” regulation on May 6, 2003. See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties , 68 FR 23954 (May 6, 2003) ( Assessment Policy Notice ). This clarification applies to entries of subject merchandise during the POR produced by any company included in the final results of review for which the reviewed company did not know that the merchandise it sold to the intermediary ( e.g. , a reseller, trading company, or exporter) was destined for the United States. In such instances, the Department will instruct CBP to liquidate unreviewed entries at the “All Others” rate if there is no rate for the intermediary involved in the transaction. See Assessment Policy Notice for a full discussion of this clarification.

We will disclose the calculations used in our analysis to parties to this segment of the proceeding within five days of the public announcement of this notice. See 19 CFR 351.224(b). Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, Room B-099, within 30 days of the date of publication of this notice. Requests should contain: (1) the party=s name, address and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. See 19 CFR 351.310(c).

Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Unless the time period is extended by the Department, case briefs are to be submitted within 30 days after the date of publication of this notice in the Federal Register ( see 19 CFR 351.309(c)). Rebuttal briefs, which must be limited to arguments raised in case briefs, are to be submitted no later than five days after the time limit for filing case briefs. See 19 CFR 351.309(d). Parties who submit arguments in this proceeding are requested to submit with the argument: (1) a statement of the issues; (2) a brief summary of the argument; and (3) a table of authorities cited. Further, we request that parties submitting written comments provide the Department with a diskette containing an electronic copy of the public version of such comments. Case and rebuttal briefs must be served on interested parties, in accordance with 19 CFR 351.303(f).

Unless extended, the Department will issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221.

On February 26, 2008, India Steel requested that the Department conduct a changed circumstances review of the antidumping duty order on stainless steel flanges from India pursuant to section 751(b) of the Tariff Act and 19 CFR 351.216. In its request, India Steel claimed that the entity previously known to the Department as Isibars had changed its name to India Steel, and that India Steel should therefore be assigned the same antidumping duty cash deposit rate as Isibars. In response to this request, the Department initiated a changed circumstances review of the antidumping duty order on forged stainless steel flanges from India. See Notice of Initiation of Antidumping Duty Changed Circumstances Review: Certain Forged Stainless Steel Flanges from India, 73 FR 14959 (March 20, 2008). On March 20, 2008, the Department issued a questionnaire to India Steel requesting information about its relation to Isibars. The Department received India Steel's response on April 16, 2008. On May 19, 2008, the Department preliminarily determined that India Steel was the successor-in-interest to Isibars. See Certain Forged Stainless Steel Flanges from India; Preliminary Results of Antidumping Duty Changed Circumstances Review, 73 FR 28798 (May 19, 2008) ( Preliminary Results ). We invited parties to comment on the Preliminary Results. We received no comments.

The products covered by this order are certain forged stainless steel flanges, both finished and not finished, generally manufactured to specification ASTM A-182, and made in alloys such as 304, 304L, 316, and 316L. The scope includes five general types of flanges. They are weld-neck, used for butt-weld line connection; threaded, used for threaded line connections; slip-on and lap joint, used with stub-ends/butt-weld line connections; socket weld, used to fit pipe into a machined recession; and blind, used to seal off a line. The sizes of the flanges within the scope range generally from one to six inches; however, all sizes of the above-described merchandise are included in the scope. Specifically excluded from the scope of this order are cast stainless steel flanges. Cast stainless steel flanges generally are manufactured to specification ASTM A-351. The flanges subject to this order are currently classifiable under subheadings 7307.21.1000 and 7307.21.5000 of the Harmonized Tariff Schedule (HTS). Although the HTS subheading is provided for convenience and customs purposes, the written description of the merchandise under review is dispositive.

For the reasons stated in the Preliminary Results , and because the Department did not receive any comments during the comment period following the preliminary results of this review, the Department continues to find that India Steel is the successor-in-interest to Isibars for antidumping duty cash deposit purposes.

The Department will instruct CBP to suspend liquidation of all shipments of the subject merchandise produced and exported by India Steel entered, or withdrawn from warehouse, for consumption on or after the publication date of this notice at zero percent ( i.e. , Isibar's cash deposit rate). This deposit rate shall remain in effect until publication of the final results of the next administrative review in which India Steel participates.

This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.306. Timely written notification of the return/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 sanctionable violation.

This notice in accordance with sections 751(b) and 777(i)(1) of the Tariff Act, and section 351.221(c)(3)(i) of the Department's regulations.

On March 3, 2008, the Department published the notice of initiation of the first sunset review of the antidumping duty order on non-malleable pipe fittings from the PRC pursuant to section 751(c) of the Act. See Initiation of Five-year (“Sunset”) Reviews , 73 FR 11392 (March 3, 2008). The Department received Notice of Intent to Participate from Anvil International, Inc. and Ward Manufacturing (collectively “the domestic interested parties”) within the deadline specified in 19 CFR 351.218(d)(1)(i). The domestic interested parties claimed interested party status under 19 CFR 351.102(b), as manufacturers of a domestic-like product in the United States. Jinan Meide Casting Co., Ltd. (“JMC”) filed an entry of appearance as an interested party, specifically, as a PRC-based producer and exporter of the subject merchandise under section 771(9)(A) of the Act.

We received complete substantive responses from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). We received no substantive response from JMC or from any other respondent interested parties. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department conducted an expedited (120-day) sunset review of the order.

For purposes of this review, the products covered are finished and unfinished non-malleable cast iron pipe fittings with an inside diameter ranging from 1/4 inch to 6 inches, whether threaded or un-threaded, regardless of industry or proprietary specifications. The subject fittings include elbows, ells, tees, crosses, and reducers as well as flanged fittings. These pipe fittings are also known as “cast iron pipe fittings” or “gray iron pipe fittings.” These cast iron pipe fittings are normally produced to ASTM A-126 and ASME B.l6.4 specifications and are threaded to ASME B1.20.1 specifications. Most building codes require that these products are Underwriters Laboratories (“UL”) certified. The scope does not include cast iron soil pipe fittings or grooved fittings or grooved couplings.

Fittings that are made out of ductile iron that have the same physical characteristics as the gray or cast iron fittings subject to the scope above or which have the same physical characteristics and are produced to ASME B.16.3, ASME B.16.4, or ASTM A-395 specifications, threaded to ASME B1.20.1 specifications and UL certified, regardless of metallurgical differences between gray and ductile iron, are also included in the scope of this petition. These ductile fittings do not include grooved fittings or grooved couplings. Ductile cast iron fittings with mechanical joint ends (“MJ”), or push on ends (“PO”), or flanged ends and produced to the American Water Works Association (“AWWA”) specifications AWWA C110 or AWWA C153 are not included.

Imports of covered merchandise are currently classifiable in the Harmonized Tariff Schedule of the United States (“HTSUS”) under item numbers 7307.11.00.30, 7307.11.00.60, 7307.19.30.60 and 7307.19.30.85. HTSUS subheadings are provided for convenience and customs purposes. The written description of the scope of this proceeding is dispositive.

All issues raised in this review are addressed in the memorandum from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import Administration, “Issues and Decision Memorandum for the Expedited Sunset Review of the Antidumping Duty Order on Non-Malleable Cast Iron Pipe Fittings from the People’s Republic of China; Final Results,” dated July 1, 2008 (“Decision Memorandum”), 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 margins likely to prevail if the order were to be revoked. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room 1117 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 “July 2008.” The paper copy and electronic version of the Decision Memorandum are identical in content.

We determine that revocation of the antidumping duty order on non-malleable pipe fittings from the PRC would be likely to lead to continuation or recurrence of dumping at the following weighted-average percentage margins:

This notice also serves as the only reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective orders 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(c), and 777(i)(1) of the Act.

The following events have occurred since the issuance of the Department's notice of initiation in the Federal Register . See Circular Welded Austenitic Stainless Pressure Pipe from the People's Republic of China: Notice of Initiation of Countervailing Duty Investigation, 73 FR 9994 (February 25, 2008) ( Initiation Notice ), and accompanying initiation checklist (February 19, 2008) (Initiation Checklist). On February 19, 2008, the Department issued the results of its query of the U.S. Customs and Border Protection (CBP) trade database to interested parties. See Memorandum to the File from Eric B. Greynolds, Program Manager, Office 3, Operations, “Results of Query of Customs and Border Protection Database” (February 19, 2008), a proprietary document of which the public version is on file in the Central Records Unit (CRU), room 1117 in the main Department building. On February 29, 2008, Zhejiang Jiuli High-Tech Metals Co. Ltd. (Jiuli), a Chinese producer and exporter of CWASPP, requested that the Department select the company as a mandatory respondent. Jiuli further requested that, in the event that the Department did not select it as a mandatory respondent, the Department designate Jiuli as a voluntary respondent as provided under 19 CFR 351.204(d). On March 3, 2008, Jiuli submitted comments regarding the Department's selection of mandatory respondents in the investigation. On March 14, 2008, the Department selected as mandatory respondents the two largest Chinese producers/exporters of CWASPP that could reasonably be examined. The mandatory respondents selected by the Department are, in alphabetical order, Froch Enterprise Co. Ltd. (Froch) (also known as Zhangyuan Metal Industry Co. Ltd.) and Winner Stainless Steel Tube Co. Ltd. (Winner). See Memorandum to Stephen J. Claeys, Deputy Assistant Secretary, for Import Administration, through Melissa G. Skinner, Director, Office 3, Operations, from the team, “Respondent Selection” (March 14, 2008), a proprietary document of which the public version is on file in the CRU. On the same day, we issued a countervailing duty (CVD) questionnaire to the Government of China (GOC) requesting that the GOC forward the company sections of the questionnaire to the mandatory respondents. As a courtesy, we also issued the CVD questionnaire to Froch, and Winner, and to Jiuli. 1

On March 17, 2008, the International Trade Commission (ITC) issued its affirmative preliminary determination that there is a reasonable indication that an industry in the United States is materially injured by reason of allegedly subsidized imports of CWASPP from the PRC. See Welded Stainless Steel Pressure Pipe from China, USITC Pub 3986, Investigation Nos. 701-TA-454 and 731-TA-1144 (Preliminary) (March 2008). On the same day, Prudential Stainless & Alloy (Prudential), a U.S importer and distributor of CWASPP, submitted comments regarding the scope of the investigation. 2

On April 4, 2008, we published a postponement of the preliminary determination of this investigation until no later than June 30, 2008. See Circular Welded Austenitic Stainless Pressure Pipe from the People's Republic of China: Amended Notice of Postponement of Preliminary Determination in the Countervailing Duty Investigation, 73 FR 18511 (April 4, 2008).

On May 5, 2008, we received the GOC's response to the Department's initial questionnaire. On May 9, 2008, we received a response to the initial questionnaire from Winner and its affiliates Winner Machinery Enterprises Company Limited (Winner HK) and Winner Steel Products (Guangzhou) Co., Ltd. (WSP) (collectively the Winner Companies). Froch did not respond to the Department's initial questionnaire. On May 14, 2008, the GOC submitted its response to the Department's government supplemental questionnaire. On June 10, 2008, the Winner Companies submitted their response to the Department's supplemental questionnaire. On June 16, 2008, the GOC submitted its response to the Department's second government supplemental questionnaire.

On May 30, 2008, petitioners submitted new subsidy allegations concerning 11 programs. 3 On June 9, 2008, members of the Import Administration staff met with officials from the GOC regarding new subsidy allegations filed by petitioners. See Memorandum to the File from Eric B. Greynolds, Program Manager, Office 3, Operations, “ Ex Parte Meeting with Officials from the Government of China” (June 9, 2008), a public document on file in the CRU. On June 11, 2008, the GOC submitted comments to the Department urging it to reject petitioners' new subsidy allegations on the grounds that petitioners alleged them in an untimely matter and that they are without merit. On June 12, 2008, the Department issued a letter to petitioners asking them to explain why they were unable to submit their new subsidy allegations within the regulatory deadline established under 19 CFR 351.301(d)(4)(i)(A). On June 18, 2008, petitioners submitted their response to the Department and responded to the comments made by the GOC in its June 12, 2008 submission.

At this time, the Department continues to evaluate the timeliness of petitioners' new subsidy allegations. If the Department determines that the new subsidy allegations were submitted in accordance with 19 CFR 351.301(d)(4)(i)(A), then the Department will issue a new subsidy allegation decision memorandum in which it will identify, if any, the programs it will investigate. Any such decision memorandum will be provided to interested parties.

On June 25, 2008, petitioners requested that the Department align the final CVD determination with the final determination in the companion antidumping (AD) investigation of CWASPP from the PRC.

The merchandise covered by this investigation is circular welded austenitic stainless pressure pipe not greater than 14 inches in outside diameter. This merchandise includes, but is not limited to, the American Society for Testing and Materials (ASTM) A-312 or ASTM A-778 specifications, or comparable domestic or foreign specifications. ASTM A-358 products are only included when they are produced to meet ASTM A-312 or ASTM A-778 specifications, or comparable domestic or foreign specifications.

Excluded from the scope are: (1) Welded stainless mechanical tubing, meeting ASTM A-554 or comparable domestic or foreign specifications; (2) boiler, heat exchanger, superheater, refining furnace, feedwater heater, and condenser tubing, meeting ASTM A-249, ASTM A-688 or comparable domestic or foreign specifications; and (3) specialized tubing, meeting ASTM A-269, ASTM A-270 or comparable domestic or foreign specifications.

The subject imports are normally classified in subheadings 7306.40.5005, 7306.40.5040, 7306.40.5062, 7306.40.5064, and 7306.40.5085 of the Harmonized Tariff Schedule of the United States. They may also enter under HTSUS subheadings 7306.40.1010, 7306.40.1015, 7306.40.5042, 7306.40.5044, 7306.40.5080, and 7306.40.5090. The HTSUS subheadings are provided for convenience and customs purposes only; the written description of the scope is dispositive.

In our Initiation Notice, we set aside a period of time for parties to raise issues regarding product coverage, and encouraged all parties to submit comments within 20 calendar days of publication of the Initiation Notice. See Initiation Notice, 73 FR at 9994. As stated above, on March 17, 2008, Prudential submitted timely scope comments.

Prudential argues that the current scope appears to cover all alloy grades within the specification ASTM A-312. However, according to Prudential, certain grades such as 309S, 310S, 321, 347, 317L, 904L (NO8904), 254SMO (S31254) and others are specialized, very low-volume products that do not compete with the high-volume commodity products such as 304, 304L, 316, and 316L that are manufactured by petitioners. Prudential contends that such low-volume, higher-priced specialty grades should be excluded from the scope. Specifically, Prudential argues that the Department should exclude all grades of CWASPP except the 304 series and 316 series. Prudential adds that series 304H and 304LN should remain within the scope in order to prevent circumvention.

Additionally, Prudential asserts that the scope of the investigation is unnecessarily broad with respect to schedules ( e.g. , wall thickness) of CWASPP. Prudential contends that the scope should only cover schedules 40S and 10S, which it claims constitute the vast majority of pipe produced by petitioners. Prudential argues that schedules 5S, 20, 30, 60, and 80S should be excluded from the scope because they do not represent a threat to petitioners.

On March 14, 2008, petitioners filed rebuttal comments to Prudential's scope and product coverage comments. Petitioners oppose changing the scope of the investigation arguing that Prudential's proposed changes regarding alloy grade and schedules (wall thickness) would exclude products presently manufactured by the domestic industry that are important to the domestic industry. They note that these products were also covered by the ITC in its definition of like product in its preliminary investigation questionnaire.

On April 28, 2008, Prudential filed a letter in response to petitioners' March 14, 2008, submission. Prudential disagrees with petitioners' claim that the items Prudential is proposing to exclude are “important” to the domestic industry. Arguing that, as a specialty “stockist,” these items are important to Prudential, but not the industry as a whole. Prudential requests that the Department determine factually how much, of the approximately 35,000 tons produced last year domestically, were not 304, 304L, 304/L, 316, 316L or 316/L and were not schedule 10s or 40s. Prudential asserts that the percentages will be quite low and argues that it is doubtful that schedule 5s and 80s would be considered “important” and that, undeniably, the remaining schedules (20, 30, 60, 100, 120, 140, 160, and XXH) are of no importance to the domestic industry.

The Department is evaluating these comments and will issue its decision regarding the scope of the investigation in the preliminary determination of the companion AD investigation due no later than August 27, 2008.

On June 25, 2008, petitioners submitted a letter, in accordance with section 705(a)(1) of the Tariff Act of 1930, as amended (the Act), requesting alignment of the final CVD determination with the final determination in the companion AD investigation of CWASPP from the PRC. Therefore, in accordance with section 705(a)(1) of the Act, and 19 CFR 351.210(b)(4), we are aligning the final CVD determination with the final determination in the companion AD investigation of CWASPP from the PRC. The final CVD determination will be issued on the same date as the final AD determination, which is currently scheduled to be issued no later than November 10, 2008.

On October 25, 2007, the Department published Coated Free Sheet Paper from the People's Republic of China: Final Affirmative Countervailing Duty Determination, 72 FR 60645 (October 25, 2007) ( CFS from the PRC ), and accompanying decision memorandum (CFS from the PRC Decision Memorandum). In CFS from the PRC, the Department found that

Additionally, for the reasons stated in the CWP from the PRC Decision Memorandum, we are using the date of December 11, 2001, the date on which the PRC became a member of the World Trade Organization (WTO), as the date from which the Department will identify and measure subsidies in the PRC for purposes of this preliminary determination. See CWP from the PRC Decision Memorandum at Comment 2.

The period of investigation for which we are measuring subsidies is calendar year 2007.

As discussed below, the Department is investigating whether GOC authorities provided stainless steel coil, a major input in the production of CWASPP to respondents for less than adequate remuneration (LTAR). In our March 14, 2008, questionnaire, we asked the GOC to respond to the items in the Standard Questions Appendix at Appendix One and Provision of Goods/Services Appendix at Appendix Five with respect to the GOC's alleged provision of stainless steel coil for LTAR. In its May 5, 2008, response, the GOC stated that:

On May 7, 2008, the Department issued a supplemental questionnaire to the GOC in which it requested that the GOC respond to the items contained in Appendices One and Five of the Department's initial questionnaire, as they pertain to the GOC's alleged provision of stainless steel coil for LTAR. In the May 7, 2008, supplemental questionnaire, the Department explained that failure to respond to the Department's questions in a timely fashion and in the manner requested may result in the Department resorting to the use of adverse facts available (AFA) within the meaning of section 776(b) of the Act.

In its May 14, 2008, supplemental questionnaire response, the GOC provided responses to most of the Department's questions. However, the GOC failed to adequately respond to the Department's questions concerning de facto specificity as it pertains to the GOC's alleged provision of stainless steel coil for LTAR. Regarding this alleged subsidy program, the Department, referencing its initial questionnaire, instructed the GOC in its May 7, 2008, supplemental questionnaire to:

Sections 776(a)(1) and (2) of the Act provide that the Department shall apply “facts otherwise available” if, inter alia, necessary information is not on the record or an interested party or any other person: (A) Withholds information that has been requested; (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act; (C) significantly impedes a proceeding; or (D) provides information that cannot be verified as provided by section 782(i) of the Act.

Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department “shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority” if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information if it can do so without undue difficulties.

Because the GOC failed to provide the requested information by the established deadlines, the Department does not have the necessary information on the record to determine whether the GOC provided stainless steel coil to producers of CWASPP in a manner that was de facto specific within the meaning of section 771(5A)(D)(iii) of the Act. Therefore, the Department must base its determination on the facts otherwise available in accordance with sections 776(a)(2)(A) and (B) of the Act.

Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Section 776(b) of the Act also authorizes the Department to use as AFA information derived from the petition, the final determination, a previous administrative review, or other information placed on the record. For the reasons discussed below, we determine that, in accordance with sections 776(a)(2)(A) and (B) and 776(b) of the Act, the use of AFA is appropriate for the preliminary determination with respect to the GOC's alleged provision of stainless steel coil to producers of CWASPP for LTAR.

As noted, the GOC refused to respond to the items contained in Appendices One and Five of the Department's initial questionnaire, as they pertain to the GOC's alleged provision of stainless steel coil to producers of CWASPP for LTAR. The Department issued a supplemental questionnaire in which it again instructed the GOC to respond to Appendices One and Five in regard to the LTAR allegations at issue. However, in its response, the GOC continued to provide insufficient information regarding the Department's questions pertaining to de facto specificity. Therefore, consistent with sections 776(a)(2)(A) and (B) of the Act, we find that the GOC did not act to the best of its ability and, therefore, we are employing adverse inferences in selecting from among the facts otherwise available. Accordingly, pursuant to section 776(b) of the Act, we find that the provision of stainless steel coil to producers of CWASPP by GOC authorities is de facto specific within the meaning of section 771(5A)(D)(iii) of the Act. Thus, we preliminarily determine that the provision of stainless steel coil by GOC authorities to producers of CWASPP are countervailable to the extent that the provision of the goods constituted a financial contribution in accordance with 771(5)(D)(iii) of the Act and conferred a benefit upon producers of CWASPP within the meaning of 771(E)(iv) of the Act. The Department's decision to rely on adverse inferences when lacking a response from a foreign government is in accordance with its practice. See, e.g., Notice of Preliminary Results of Countervailing Duty Administrative Review: Certain Cut-to-Length Carbon-Quality Steel Plate from the Republic of Korea, 71 FR 11397, 11399 (March 7, 2006) (unchanged in the Notice of Final Results of Countervailing Duty Administrative Review: Certain Cut-to-Length Carbon-Quality Steel Plate from the Republic of Korea, 71 FR 38861 (July 10, 2006) (relying on adverse inferences in determining that the Government of Korea directed credit to the steel industry in a manner that constituted a financial contribution and was specific to the steel industry within the meaning of the sections 771(5)(D)(i) and 771(5A)(D)(iii) of the Act, respectively.

In this case, Froch did not provide the requested information that is necessary to determine a CVD rate for this preliminary determination. Specifically, Froch did not respond to the Department's March 14, 2008, initial questionnaire. Thus, in reaching our preliminary determination, pursuant to section 776(a)(2)(A) and (C) of the Act, we have based Froch's CVD rate on facts otherwise available.

The Department has determined that, in the instant investigation, an adverse inference is warranted, pursuant to section 776(b) of the Act. By failing to submit a response to the Department's initial questionnaire, Froch did not cooperate to the best of its ability in this investigation. Accordingly, we find that an adverse inference is warranted to ensure that Froch will not obtain a more favorable result than had it fully complied with our request for information.

In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to rely on information derived from: (1) The petition; (2) a final determination in the investigation; (3) any previous review or determination; or (4) any information placed on the record. It is the Department's practice to select, as AFA, the highest calculated rate in any segment of the proceeding. See, e.g., Certain In-shell Roasted Pistachios from the Islamic Republic of Iran: Final Results of Countervailing Duty Administrative Review, 71 FR 66165 (November 13, 2006), and accompanying decision memorandum at “Analysis of Programs” and Comment 1.

The Department's practice when selecting an adverse rate from among the possible sources of information is to ensure that the margin is sufficiently adverse “as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.” See Notice of Final Determination of Sales at Less than Fair Value: Static Random Access Memory Semiconductors From Taiwan, 63 FR 8909, 8932 (February 23, 1998). The Department's practice also ensures “that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See SAA at 870. In choosing the appropriate balance between providing a respondent with an incentive to respond accurately and imposing a rate that is reasonably related to the respondent's prior commercial activity, selecting the highest prior margin “reflects a common sense inference that the highest prior margin is the most probative evidence of current margins, because, if it were not so, the importer, knowing of the rule, would have produced current information showing the margin to be less.” See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed. Cir. 1990).

For the six alleged income tax programs pertaining to either the reduction of the income tax rates or exemption from income tax, we have applied an adverse inference that Froch paid no income tax during the POI. The standard income tax rate for corporations in the PRC is 30 percent, plus a 3 percent provincial income tax rate. Therefore, the highest possible benefit for these six income tax rate programs is 33 percent. We are applying the 33 percent AFA rate on a combined basis ( i.e. , the six programs combined provided a 33 percent benefit). Our approach is consistent with the Department's practice. This 33 percent AFA rate does not apply to income tax credit or rebate programs. See CWP from the PRC Decision Memorandum at “Use of Adverse Facts Available” section. Our preliminary finding in this regard includes the Reduced Income Tax Rate for FIEs Located in Economic and Technological Development Zones and Other Special Economic Zones program even though we have calculated a net subsidy rate for the Winner Companies for this program. See Light-Walled Rectangular Pipe and Tube From People's Republic of China: Final Affirmative Countervailing Duty Investigation Determination, 73 FR 35642, 35644 (June 24, 2008) ( LWP from the PRC ), and accompanying decision memorandum (LWP from the PRC Decision Memorandum) at “Income Tax Subsidies for Foreign Invested Enterprises (FIEs)—Reduced Income Tax Rates for FIEs Based on Location” section, where the Department assigned an AFA rate of 33 percent for income tax programs alleged with respect to a non-responding mandatory respondent even though the Department calculated an income tax rate for a particular program for a mandatory respondent that participated in the proceeding.

For the program involving the provision of stainless steel coil for LTAR, the Department has preliminarily determined to use the Winner Companies' rate calculated in this investigation for this program (which is 1.39 percent). Because the Winner Companies did not use any of the other alleged subsidy programs, for the remaining programs in this investigation (including the tax credit and refund programs), we are applying, where available, the highest non- de minimis subsidy rate calculated for the same or similar program in a China CVD investigation. Absent an above- de minimis subsidy rate calculated for the same or similar program, we are applying the highest calculated subsidy rate for any program otherwise listed, which could conceivably be used by the respondents in this investigation. The Department has reached affirmative final CVD determinations in several investigations of products from the PRC. See CFS from the PRC; CWP from the PRC; LWP from the PRC; and Laminated Woven Sacks from the People's Republic of China: Final Affirmative Countervailing Duty Determination and Final Affirmative Determination, in Part, of Critical Circumstances, 73 FR 35639 (June 24, 2008) ( Sacks from the PRC ), and accompanying decision memorandum (Sacks Decision Memorandum). As such, we are including the subsidy rates calculated in those final determinations in our AFA analysis in the instant investigation because those final determinations were completed more than seven days prior to the deadline for our preliminary determination. For further information concerning the derivation of Froch's AFA rate, see the Memorandum to the File from Eric B. Greynolds, “Calculations for Preliminary Determination” (Preliminary Calculations Memorandum) at Attachment III (June 30, 2008), a proprietary document of which the public version is on file in the CRU.

Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.” See, e.g., Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act, H. Doc. No. 316, 103d Cong., 2d Session (1994) at 870. The Department considers information to be corroborated if it has probative value. See SAA at 870. To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used. The SAA emphasizes, however, that the Department need not prove that the selected facts available are the best alternative information. See SAA at 869.

In instances in which it determines to apply AFA, the Department, in order to satisfy itself that such information has probative value, will examine, to the extent practicable, the reliability and relevance of the information used. With regard to the reliability aspect of corroboration, we note that these rates were calculated in prior final CVD determinations. No information has been presented that calls into question the reliability of these calculated rates that we are applying as AFA. Unlike other types of information, such as publicly available data on the national inflation rate of a given country or national average interest rates, there typically are no independent sources for data on company-specific benefits resulting from countervailable subsidy programs.

With respect to the relevance aspect of corroborating the rates selected, the Department will consider information reasonably at its disposal in considering the relevance of information used to calculate a countervailable subsidy benefit. Where circumstances indicate that the information is not appropriate as AFA, the Department will not use it. See, e.g., Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812 (February 22, 1996). In the absence of record evidence concerning these programs due to Froch's decision not to participate in the investigation, the Department has reviewed the information concerning China subsidy programs in this and other cases. For those programs for which the Department has found a program-type match, we find that programs of the same type are relevant to the programs of this case. For the programs for which there is no program-type match, the Department has selected the highest calculated subsidy for any China program from which Froch could conceivably receive a benefit to use as AFA. The relevance of this rate is that it is an actual calculated CVD rate for a China program from which Froch could actually receive a benefit. Due to the lack of participation by Froch and the resulting lack of record information concerning these programs, the Department has corroborated the rates it selected to the extent practicable.

On this basis, we preliminarily determine the AFA countervailable subsidy rate for Froch to be 106.85 percent ad valorem. See Preliminary Calculations Memorandum at Attachment III.

As stated above, Winner is affiliated with Winner HK and WSP. According to Winner, during the POI Winner HK purchased finished subject merchandise from Winner for sale and consigned steel coil to Winner for manufacturing into subject merchandise that Winner returned to Winner HK for sale. Winner further states that during the POI, WSP was a sub-contractor for Winner. Specifically, Winner provided coils or slit coils to WSP, which WSP slit and/or formed into pipe and returned it to Winner. Winner states it then manufactured the processed coil into subject merchandise. In addition, WSP provided slit and/or formed pipe to Winner, which Winner claims were used to make non-subject merchandise.

Winner states that during the POI, Winner, Winner HK, and WSP were “directly or indirectly, partially or wholly, owned” by the same shareholders. Under 19 CFR 351.525(b)(6)(vi) cross-ownership exists between corporations if one corporation can use or direct the individual assets of the other corporation(s) in essentially the same way it uses its own. This section of the Department's regulations states that this standard will normally be met where there is a majority voting interest between two corporations or through common ownership of two (or more) corporations. Based on the information supplied by Winner indicating that the Winner Companies are owned by the same shareholders parent, we preliminarily determine that Winner, WSP, and Winner HK are cross-owned under 351.525(b)(6)(vi).

For purposes of attributing subsidies received by WSP (an affiliate that supplies stainless steel coil inputs to Winner) under the Provision of Stainless Steel Coil for LTAR program, in accordance with 19 CFR 351.525(b)(6)(iv), we preliminarily determine to attribute subsidies received by WSP to the combined sales of WSP's sales of steel coil, and the total sales of Winner and Winner HK, excluding intra-company sales. We have adopted the same approach in the preliminary determination with respect to the attribution of subsidies received by Winner under the Provision of Stainless Steel Coil for LTAR and Reduced Income Tax Rate for Foreign Investment Enterprises (FIEs) Located in Economic and Technological Development Zones and Other Special Economic Zones programs. Regarding Winner HK, we preliminarily determine that Winner HK is a Hong Kong company and did not receive any subsidies from the GOC.

According to the GOC, this program provides tax incentives for enterprises located in special zones. The GOC states that the program was first enacted on June 15, 1988, pursuant to the Provisional Rules on Exemption and Reduction of Corporate Income Tax and Business Tax of FIEs in Coastal Economic Zones, as issued by the Ministry of Finance. The GOC states that the program was continued on July 1, 1991, pursuant to Article 30 of the FIE Tax Law. Specifically, pursuant to Article 7 of the FIE Tax Law for productive FIEs established in a coastal economic development zone, special economic zone, or economic technology development zone, the applicable enterprise income tax rate is 15 or 24 percent, depending on the zones in which productive FIE are located, as opposed to the standard 30 percent income tax rate.

We preliminarily determine that this program constitutes a financial contribution in the form of revenue forgone and confers a benefit equal to the amount of tax savings within the meaning of sections 771(5)(D)(ii) and 771(5)(E) of the Act. Because eligibility under this program is limited to firms located within designated geographical regions, we preliminarily determine that the program is specific within the meaning of section 771(5A)(D)(iv) of the Act. We note that the Department has found this program countervailable in previous CVD proceedings. See, e.g. , CFS from the PRC Decision Memorandum at “Reduced Income Tax Rates for FIEs Based on Location” section.

Under 19 CFR 351.509(b), in the case of an income tax reduction program, the Department normally will consider the benefit as having been received on the date on which the recipient firm would otherwise have had to pay the taxes associated with the reduction. Normally, this date is the date on which the firm in question filed its tax return. In its questionnaire response, Winner indicates that it received an income tax reduction under the program with respect to the tax return filed during the POI. Therefore, we preliminarily determine that Winner received a benefit under this program during the POI.

In accordance with 19 CFR 351.509(a), to calculate the benefit, we subtracted the income tax rate Winner paid under the program from the income tax rate Winner would have paid absent the program and multiplied the difference by Winner's taxable income.

To calculate the net subsidy rate, we divided the benefit by the total sales denominator for Winner and WSP, as described in the “Cross-Ownership” section. On this basis, we preliminarily determine a net subsidy rate of 0.08 percent ad valorem for the Winner Companies.

The Department is investigating whether GOC authorities provided stainless steel coil to producers of CWASPP for LTAR. As instructed in the Department's questionnaires, the Winner Companies identified the suppliers from whom they purchased stainless steel coil during the POI. In addition to the supplier names, the Winner Companies, as instructed, indicated the date of payment, quantity, unit of measure, purchase price (with and without VAT and quantity discounts), grade, and delivery terms. Having obtained permission from the Winner Companies to disclose the proprietary names of their suppliers to the GOC, we asked the GOC to provide certain information regarding the Winner Companies' domestic suppliers of stainless steel coil. See Memorandum to the File from Eric B. Greynolds, Program Manager, Office 3, Operations, “Consent to Release Company-Specific Proprietary Information to the Government of China (GOC)” (May 28, 2008), a public document on file in the CRU.

In order to assess whether an entity should be considered to be the government for purposes of countervailing duty investigations, the Department has in the past considered the following factors to be relevant: (1) The government's ownership; (2) the government's presence on the entity's board of directors; (3) the government's control over the entity's activities; (4) the entity's pursuit of governmental policies or interests; and (5) whether the entity is created by statute. Not all of these criteria must be satisfied for an entity to be considered a government entity, but, taken together these five criteria inform our decision. See e.g., Coated Free Sheet Paper from the Republic of Korea: Final Affirmative Countervailing Duty Determination, 72 FR 60639 (October 25, 2007) ( CFS from Korea ), and accompanying decision memorandum (CFS from Korea Decision Memorandum) at Comment 11. In addition, we instructed the GOC to indicate whether the Winner Companies' domestic suppliers of stainless steel coil were trading companies, and if so, to provide information related to the five factors listed above as it pertains to the entities from whom the trading companies purchased the stainless steel coil.

In its response, the GOC provided information pertaining to the “Five Factor Test” for each of the Winner Companies” domestic stainless steel coil suppliers. In its response, the GOC states that none of the domestic suppliers of the Winner Companies' stainless steel coils met criteria two through five under the “Five Factor Test.” However, the GOC provided information indicating that, in certain instances, domestic suppliers of the Winner Companies' stainless steel coil were majority-owned by GOC entities. See GOC's second supplemental questionnaire response at Exhibit 1; GOC's supplement to its second supplemental questionnaire response at Exhibits 1-24. Based on our review of the information submitted by the GOC, we preliminarily determine that domestic suppliers of the Winner Companies' stainless steel coil that were majority-owned by the GOC during the POI constitute government authorities.

In addition, in its response the GOC identified which of the Winner Companies' domestic stainless steel coil suppliers were trading companies. However, the GOC was unable to provide the requested information concerning the “Five Factor Test” as it pertains to the suppliers from whom the domestic trading companies purchased the stainless steel coil. See GOC's second supplemental questionnaire response at 3 (“The GOC does not possess the information requested by the Department”).

Regarding domestic trading companies that supplied stainless steel coil to the Winner Companies during the POI, the GOC was unable to provide the requested information concerning the entities from which the trading companies acquired the input, even in instances involving government-owned trading companies. Thus, we preliminarily determine that the necessary information is not on the record, and we are resorting to the use of facts available within the meaning of sections 776(a)(1) and (2) of the Act.

In its response, the GOC provided information on the amount of stainless steel coil produced by state-owned enterprises (SOEs) and private producers in China. See GOC's June 16, 2008, second supplemental questionnaire at page 4. Using these data, we derived the ratio of stainless steel coil produced by SOEs during the POI (82 percent). 4 Thus, pursuant to sections 776(a)(1) and (2) of the Act, for purposes of this preliminary determination we are resorting to the use of facts available (FA) with regard to the stainless steel coil sold to the Winner Companies by domestic trading companies. Specifically, we are assuming that the percentage produced by government authorities is equal to the ratio of stainless steel coil produced by SOEs during the POI. 5 This approach is consistent with the Department's practice. See CWP from the PRC Decision Memorandum at the “Hot-rolled Steel for Less Than Adequate Remuneration” section; see also LWP from the PRC Decision Memorandum at the “Hot-rolled Steel for Less Than Adequate Remuneration” section. For further discussion, see our description of the benefit calculations below. We will seek additional information regarding the amount of stainless steel coil purchased by domestic trading companies that was produced by SOEs.

In their submissions, the Winner Companies argue that the Department should not subject the stainless steel coils that WSP purchased from GOC authorities to our LTAR subsidy analysis because the inputs were not subsequently used to make CWASPP. For purposes of this preliminary determination, we disagree with the Winner Companies' arguments. We note that the Winner Companies are not arguing that the inputs WSP purchased from GOC authorities are incompatible with the production process used to produce CWASPP but that WSP did not use those inputs to produce CWASPP. In this regard, we note that 19 CFR 351.503(c) states that:

However, information on the record indicates that stainless steel coil that is of the grade 430 is incompatible with the production process used to produce CWASPP ( i.e. , stainless steel coil that is grade 430 is not austentitic). See June 30, 2008, Memorandum to the File from Eric B. Greynolds, Program Manager, Office 3, Operations, “Public Information Concerning Stainless Steel of Grades 201 and 430,” a public document on file in the CRU (June 30, 2008) (Steel Grade Memorandum). This circumstance is markedly different than the issue of whether or how a firm used a particular input and, therefore, is distinct from the issue described under 19 CFR 351.503(c). Thus, because record evidence indicates that stainless steel coil of grade 430 cannot, by its nature, be used to make CWASPP, we have for purposes of this preliminary determination excluded the grade from our LTAR subsidy analysis. See 19 CFR 351.525(b)(5).

Having identified the extent to which the Winner Companies' obtained stainless steel coil from GOC authorities, we preliminarily determine that the GOC authorities' provision of stainless steel coil constitutes a financial contribution under section 771(5)(D)(iii) of the Act. 6 Furthermore, as discussed above in the “Adverse Facts Available” section, pursuant to section 776(b) of the Act, we find that the provision of stainless steel coil to producers of CWASPP by GOC authorities is de facto specific within the meaning of section 771(5A)(D)(iii) of the Act.

The Department's regulation at 19 CFR 351.511(a)(2) sets forth the basis for identifying appropriate market-determined benchmarks for measuring the adequacy of remuneration for government-provided goods or services. These potential benchmarks are listed in hierarchical order by preference: (1) Market prices from actual transactions within the country under investigation ( e.g. , actual sales, actual imports or competitively run government auctions) (“tier one”); (2) world market prices that would be available to purchasers in the country under investigation (“tier two”); or (3) an assessment of whether the government price is consistent with market principles (“tier three”). As we have explained in Canadian Lumber , the preferred benchmark in the hierarchy is an observed market price from actual transactions within the country under investigation. 7 This is because such prices generally would be expected to reflect most closely the prevailing market conditions of the purchaser under investigation.

Based on the hierarchy established above, we must first determine whether there are market prices from actual sales transactions involving Chinese buyers and sellers that can be used to determine whether GOC authorities sold stainless steel coils to the Winner Companies for LTAR. Notwithstanding the regulatory preference for the use of prices stemming from actual transactions in the country, where the Department finds that the government provides the majority, or a substantial portion of, the market for a good or service, prices for such goods and services in the country will be considered significantly distorted and will not be an appropriate basis of comparison for determining whether there is a benefit. 8

As explained above, for purposes of this preliminary determination, we find that SOEs account for approximately 82 percent of the stainless steel coil production in the PRC during the POI (and approximately 71 percent of production if available data on import volume are included). Consequently, because of the government's overwhelming involvement in the PRC stainless steel coil market, the use of private producer prices in China would be akin to comparing the benchmark to itself ( i.e. , such a benchmark would reflect the distortions of the government presence). 9 As we explained in Canadian Lumber:

Next, turning to tier one benchmark prices stemming from actual import prices, there is record evidence that Winner HK purchased stainless steel coil from a supplier located outside of China during the POI. 11 The stainless steel coil Winner HK imported from the foreign supplier accounts for a significant percentage of the stainless steel coil purchased by the Winner Companies during the POI. The company-specific import price data contain information on monthly prices. In addition, the data contain prices for every grade of stainless steel that the Winner Companies purchased from GOC authorities during the POI, though month-to-month comparisons of prices within grades are not possible in some instances due to the lack of company-specific import prices in certain months.

In addition, the Department has on the record of the investigation tier two benchmark prices for certain grades of stainless steel coil, namely grades 304 and 316. The sources for the tier two benchmark prices are the Steel Business Briefing (SBB) publication and Management Engineering and Production Services (MEPS). The data reported by SBB contain delivered, monthly prices for stainless steel coil, grade 304, for Europe, North America, Asia (on an import price basis), and the world for the POI. The data reported by MEPS contain monthly prices for stainless steel coil (both hot- and cold-rolled), grades 304 and 316, for Europe, North America, Asia, and the world for the POI. 12 Further, as discussed above, the GOC reported aggregate import data for the POI, as reported by its Customs Service. However, these aggregate import data do not delineate the prices by grade or month. Therefore, because the aggregated import data submitted by the GOC do not delineate the prices by grade or month, we are excluding this information from consideration for use as benchmarks.

As stated above, we preliminarily determine that government production accounts for a significant portion of the stainless steel coil industry so that it is reasonable to conclude that private prices in China are significantly distorted, and therefore unusable as benchmarks. Given this finding, we must test the available company-specific import prices of stainless steel coil in order to ascertain whether they are also distorted by the dominance of government production in the PRC. To conduct the test, we have compared the company-specific import price data for stainless steel coil to the world price data for stainless steel coil reported in MEPS and SBB and have validated these import prices with market-based world prices.

Furthermore, we preliminarily find that the world prices for stainless steel coil reported by MEPS and SBB are comparable to the company-specific import prices reported by the Winner Companies. Therefore, for purposes of this preliminary determination, we conclude that the world prices for stainless steel coil reported by MEPS and SBB should be treated as surrogate import prices and, thus, serve as a tier one benchmark. Although the regulations refer to “actual imports,” we see no meaningful difference in actual and potential market-determined import prices stemming from transactions outside the country. 13 This is particularly the case where, as here, an actual import price is comparable to world market-determined price, such as those contained in MEPS and SBB. In effect, because of the comparability between the company-specific import prices and the MEPS and SBB world prices, we consider the latter to be equivalent or surrogates for actual imports. These prices are thus appropriately considered tier one benchmark prices. We note that this approach is consistent with the Department's approach in CWP from the PRC. See CWP from the PRC Decision Memorandum at Comment 7. For these reasons, to measure whether GOC authorities sold stainless steel coil to the Winner Companies for LTAR during the POI, we are relying on the simple average of the company-specific import prices, MEPS, and SBB.

To calculate the benefit, we first converted the benchmark prices into the same unit of measure (USD per tonne). Next, we converted the benchmark unit prices from U.S. dollars to renminbi (RMB) using average USD to RMB exchange rates, as reported by the Federal Reserve Statistical Release. We then compared the benchmark unit prices to the unit prices the Winner Companies paid to domestic suppliers of stainless steel coil during the POI.

We conducted the benefit calculation by comparing prices within each grade. Information concerning the grades of stainless steel coil imported by Winner HK during the POI is business proprietary. Therefore, for further discussion regarding the manner in which the Department conducted its benefit calculation, see the Memorandum to the File from Eric B. Greynolds, Program Manager, Office 3, Operations, “Comparisons of Grades of Stainless Steel Coil for Purposes of the Preliminary Determination” (Jun 30, 2008), a business proprietary document, of which the public version is on file in the CRU.

Regarding petitioners' allegation concerning export restraints on stainless steel coil, we find that it is not necessary to examine the allegation because our benchmarks account for any influence that export restraints may have on domestic prices for the input.

We encourage interested parties to submit comments on our use of company-specific import prices and prices from MEPS and SBB in the derivation of the benchmark including the most appropriate method to employ to validate company-specific import prices into the PRC using world market pricing data. We also invite interested parties to comment on the manner in which we conducted the benefit calculation as it pertains to the comparison of prices by grade and month.

In instances in which the benchmark unit price was greater than the price paid to GOC authorities, we multiplied the difference by the quantity of stainless steel coil purchased from GOC authorities to arrive at the benefit. As explained above, in instances in which the Winner Companies purchased the stainless steel coil from government trading companies and/or private trading companies, we multiplied the product of the price difference per unit and the quantity of stainless steel coil purchased by 82 percent to arrive at the benefit.

To calculate the net subsidy rate, we divided the total benefit by the Winner Companies' total sales for the POI. On this basis, we calculated a total net subsidy rate of 1.39 percent ad valorem for the Winner Companies.

As explained in the Initiation Checklist, the Department is examining whether GOC-owned/controlled entities sold land to producers of CWASPP for LTAR. In its questionnaire responses, Winner states in 1993, 1996, and 2000, it made payments for land-use rights. Winner states that in 1993, prior to the incorporation of Winner, one of its founders purchased land-use rights from a foreign investor, who had, in turn, acquired the land from the Xiaobu Village Administration. Similarly, Winner states that in 1996 it acquired land-use rights from an individual, who had in turn acquired the land-use rights from the Xiaobu Village Administration. Further, Winner states that in 1999 it purchased land-use rights from the Huasan Town Administration. Winner states that in 2000, the Huasan Town Administration “confirmed” the granting of land-use rights.

Winner also states that in 2002 it received from the Government of the Province of Guandong a certificate of land-use rights for the land it acquired in 1993, 1996, and 1999. Winner further states that no land-use payments were made to the GOC or GOC governments during the POI.

Based on Winner's questionnaire responses, we preliminarily determine that there were no payments associated with its acquisition of land-use rights after the December 11, 2001, “cut-off” date established in CWP from the PRC . See CWP from the PRC Decision Memorandum at Comment 2. Therefore, in accordance with the approach established in CWP from the PRC, we preliminarily determine that this program did not confer benefits upon Winner during the POI.

We preliminarily determine that the Winner Companies did not apply for or receive benefits during the POI under the programs listed below. 14

1. Loans and Export Credits Pursuant to the Northeast Revitalization Program Income Tax Programs.

2. “Two Free, Three Half” Program.

3. Income Tax Reductions for Export-Oriented Foreign Investment Enterprises (“FIEs”).

4. Income Tax Credit or Refund for Reinvestment of FIE Profits.

5. Provincial and Local Tax Exemptions and Reductions for Productive FIEs.

6. Local Income Tax Reductions in Certain Development Zones.

7. Preferential Tax Policies for Research and Development at FIEs.

8. VAT Refunds on Purchases of Domestically Produced Equipment by FIEs.

9. Tax Credits on Purchases of Domestically Produced Equipment by Domestically Owned Companies.

10. Guangdong Province's “Outward Expansion” Program.

11. Preferential Loans Pursuant to Liaoning Province's Five-Year Framework.

12. Preferential Tax Policies for Town and Village Enterprises (“TVEs”).

13. Provision of Stainless Steel Coil for Less than Adequate Remuneration.

14. Provision of Land-Use Rights for Less Than Adequate Remuneration.

15. Export Restraints on Flat-rolled Steel.

In accordance with section 782(i)(1) of the Act, we intend to verify the information submitted by the Winner Companies and the GOC prior to making our final determination.

In accordance with section 703(d)(1)(A)(i) of the Act, we have calculated an individual rate for each producer/exporter of the subject merchandise. We preliminarily determine the total estimated net countervailable subsidy rate to be:

Sections 703(d) and 705(c)(5)(A)(i) of the Act state that for companies not investigated, we will determine an all-others rate by weighting the individual company subsidy rate of each of the companies investigated by each company's exports of the subject merchandise to the United States, excluding any zero and de minimis net subsidy rates, and any rates determined entirely under section 776 of the Act. Thus, in accordance with sections 703(d) and 705(c)(5)(A)(i) of the Act, we are equating the net subsidy rate for all other producers/exporters of CWASPP from the PRC with the net subsidy rate calculated for the Winner Companies.

In accordance with sections 703(d)(1)(B) and (2) of the Act, we are directing CBP to suspend liquidation of all entries of CWASPP from the PRC that are entered, or withdrawn from warehouse, for consumption on or after the date of the publication of this notice in the Federal Register , and to require a cash deposit or bond for such entries of merchandise in the amounts indicated above.

In accordance with section 703(f) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Import Administration.

In accordance with section 705(b)(2)(B) of the Act, if our final determination is affirmative, the ITC will make its final determination within 45 days after the Department makes its final determination.

In accordance with 19 CFR 351.224(b), the Department will disclose to the parties the calculations for this preliminary determination within five days of its announcement. The Department will notify interested parties of the schedule for submission of case briefs. As part of the case brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. See 19 CFR 351.309(c)(2). Rebuttal briefs must be limited to issues raised in the case briefs. See 19 CFR 351.309(d)(2).

In accordance with 19 CFR 351.310(c), we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on this preliminary determination. Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the Federal Register to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Parties will be notified of the schedule for the hearing and parties should confirm the time, date, and place of the hearing 48 hours before the scheduled time. Requests for a public hearing should contain: (1) Party's name, address, and telephone number; (2) the number of participants; and (3) to the extent practicable, an identification of the arguments to be raised at the hearing.

This determination is issued and published pursuant to sections 703(f) and 777(i) of the Act and 19 CFR 351.221(b)(4).

The petitioner in this investigation is Magnum Magnetics Corporation (petitioner).

The period for which we are measuring subsidies, or period of investigation (POI), is January 1, 2006, through December 31, 2006.

On February 25, 2008, the Department published in the Federal Register its preliminary affirmative determination in the countervailing duty (CVD) investigation of RFM from the PRC. See Raw Flexible Magnets from the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Countervailing Duty Determination with Final Antidumping Duty Determination , 73 FR 9998 (February 25, 2008) ( RFM Preliminary Determination ).

On April 29, 2008, we received a case brief from the Government of the People's Republic of China (GOC). Petitioner submitted a rebuttal brief on May 5, 2008. Neither the GOC nor petitioner requested a hearing.

The products covered by this investigation are certain flexible magnets regardless of shape, 1 color, or packaging. 2 Subject flexible magnets are bonded magnets composed (not necessarily exclusively) of (i) any one or combination of various flexible binders (such as polymers or co-polymers, or rubber) and (ii) a magnetic element, which may consist of a ferrite permanent magnet material (commonly, strontium or barium ferrite, or a combination of the two), a metal alloy (such as NdFeB or Alnico), any combination of the foregoing with each other or any other material, or any other material capable of being permanently magnetized.

Subject flexible magnets may be in either magnetized or unmagnetized (including demagnetized) condition, and may or may not be fully or partially laminated or fully or partially bonded with paper, plastic, or other material, of any composition and/or color. Subject flexible magnets may be uncoated or may be coated with an adhesive or any other coating or combination of coatings.

Specifically excluded from the scope of this investigation are printed flexible magnets, defined as flexible magnets (including individual magnets) that are laminated or bonded with paper, plastic, or other material if such paper, plastic, or other material bears printed text and/or images, including but not limited to business cards, calendars, poetry, sports event schedules, business promotions, decorative motifs, and the like. This exclusion does not apply to such printed flexible magnets if the printing concerned consists of only the following: a trade mark or trade name; country of origin; border, stripes, or lines; any printing that is removed in the course of cutting and/or printing magnets for retail sale or other disposition from the flexible magnet; manufacturing or use instructions ( e.g. , “print this side up,” “this side up,” “laminate here”); printing on adhesive backing (that is, material to be removed in order to expose adhesive for use such as application of laminate) or on any other covering that is removed from the flexible magnet prior or subsequent to final printing and before use; non-permanent printing (that is, printing in a medium that facilitates easy removal, permitting the flexible magnet to be re-printed); printing on the back (magnetic) side; or any combination of the above.

All products meeting the physical description of subject merchandise that are not specifically excluded are within the scope of this investigation. The products subject to the investigation are currently classifiable principally under subheadings 8505.19.10 and 8505.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS subheadings are provided only for convenience and customs purposes; the written description of the scope of this proceeding is dispositive.

Interested parties submitted comments on the scope of investigation. Those comments are fully addressed in the Decision Memorandum, which is hereby adopted by this notice.

Because the PRC is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Tariff Act of 1930, as amended, (the Act), section 701(a)(2) of the Act applies to this investigation. Accordingly, the International Trade Commission (ITC) must determine whether imports of the subject merchandise from the PRC materially injure, or threaten material injury to a U.S. industry. On November 9, 2007, the ITC published its preliminary determination that there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury by reason of imports from the PRC of subject merchandise. See Raw Flexible Magnets from China and Taiwan , Investigation Nos. 701-TA-452 and 731-TA-1129 and 1130 (Preliminary), 72 FR 63629 (November 9, 2007).

All issues raised in the case and rebuttal briefs by parties to this investigation are addressed in the Decision Memorandum. Attached to this notice as an Appendix is a list of the issues that parties raised and to which we have responded in the Decision Memorandum. Parties can find a complete discussion of all issues raised in this investigation and the corresponding recommendations in this public memorandum, which is on file in the Department's Central Records Unit (CRU). In addition, a complete version of the Decision Memorandum can be accessed directly on the Internet at http://ia.ita.doc.gov/frn/. The paper copy and electronic version of the Decision Memorandum are identical in content.

For purposes of this final determination, we have relied on facts available and have used adverse inferences to determine the countervailable subsidy rates for the two mandatory respondents: China Ningbo Cixi Import Export Corporation (Cixi) and Polyflex Magnets Ltd. (Polyflex), in accordance with sections 776(a) and (b) of the Act. A full discussion of our decision to apply adverse facts available (AFA) is presented in the Decision Memorandum in the section “Application of Facts Available and Use of Adverse Inferences” and in “Analysis of Comments” at Comment 6.

In accordance with section 705(c)(1)(B)(i)(I) of the Act, we have calculated an individual rate for the companies under investigation, Cixi and Polyflex. With respect to the all-others rate, section 705(c)(5)(A)(ii) of the Act provides that if the countervailable subsidy rates established for all exporters and producers individually investigated are determined entirely under section 776 of the Act, the Department may use any reasonable method to establish an all-others rate for exporters and producers not individually investigated. In this case, the rate calculated for the two investigated companies is based entirely on facts available under section 776 of the Act. There is no other information on the record upon which we could determine an all-others rate. As a result, we have used the AFA rate calculated for Cixi and Polyflex as the all-others rate. This method is consistent with the Department's past practice. See Final Affirmative Countervailing Duty Determination: Certain Hot-Rolled Carbon Steel Flat Products From Argentina , 66 FR 37007, 37008 (July 16, 2001); see also Final Affirmative Countervailing Duty Determination: Prestressed Concrete Steel Wire Strand From India , 68 FR 68356, 68357 (December 8, 2003).

As a result of our RFM Preliminary Determination and pursuant to section 703(d) of the Act, we instructed the U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of RFM from the PRC which were entered or withdrawn from warehouse, for consumption on or after February 25, 2008, the date of the publication of the RFM Preliminary Determination in the Federal Register . In accordance with section 703(d) of the Act, we instructed CBP to discontinue the suspension of liquidation for CVD purposes for subject merchandise entered on or after June 24, 2008, but to continue the suspension of liquidation of entries made from February 25, 2008, through June 24, 2008.

We will issue a CVD order and reinstate the suspension of liquidation under section 706(a) of the Act if the ITC issues a final affirmative injury determination, and will require a cash deposit of estimated countervailing duties for such entries of merchandise in the amounts indicated above. If the ITC determines that material injury, or threat of material injury, does not exist, this proceeding will be terminated and all estimated duties deposited or securities posted as a result of the suspension of liquidation will be refunded or canceled.

In accordance with section 705(d) of the Act, we will notify the ITC of our determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information related to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an APO, without the written consent of the Assistant Secretary for Import Administration.

In the event that the ITC issues a final negative injury determination, this notice will serve as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/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.

This determination is published pursuant to sections 705(d) and 777(i) of the Act.

The Secretary of Commerce initially established the Exporters' Textile Advisory Committee (“Committee”) on March 24, 1966. The Committee's Charter was last extended for two years on October 30, 2006 and will expire on October 30, 2008. It is anticipated that the Committee will be renewed for another term, from October 31, 2008 through October 30, 2010. Therefore, the Committee is seeking additional new members.

The Committee shall consist of approximately 35 members appointed by the Secretary of Commerce to ensure a balanced representation of textile and apparel products. Representatives of small, medium and large firms with broad geographical distribution in exporting shall be included on the Committee. Members shall represent the views of their companies, trade associations and other entities on matters that affect their business interest in exporting.

The Committee shall function solely as an advisory body in compliance with the provisions of the Federal Advisory Committee Act.

Persons interested in becoming members are invited to submit a letter to R. Matthew Priest, Deputy Assistant Secretary for Textiles and Apparel, U.S. Department of Commerce, Washington, DC 20230, telephone: (202) 482-3737. Letters must include the applicant's social security number, date of birth, place of birth and home address. This information is required to process a records check to determine suitability for membership.

Announcement closing date is August 5, 2008.

On August 10, 2007, the Department of Commerce (the Department) issued its preliminary results for the changed circumstances review of the antidumping duty order of certain frozen fish fillets from Vietnam. See Certain Frozen Fish Fillets from Vietnam: Notice of Initiation and Preliminary Results of Changed Circumstances Review , 72 FR 46604 (August 21, 2007) ( Preliminary Results ). On May 6, 2008, the Department published a notice extending the time limits for the changed circumstances review of the antidumping duty order of certain frozen fish fillets from Vietnam. See Certain Frozen Fish Fillets from Vietnam: Extension of Time Limit for Final Results of Changed Circumstances Review , 73 FR 28100 (May 15, 2008) (“ First Extension ”). The current deadline for the final results of this review is July 7, 2008.

In our Preliminary Results , we indicated we would issue the final results in the instant review within 270 days after the date on which the changed circumstances review is initiated. In the First Extension , we stated that it was not practicable to complete the review within this time period. Accordingly, pursuant to 19 CFR 351.302(b), we extended the time limit by 60 days.

The Department finds that it is not practicable to complete this review by the current deadline. Subsequent to the Preliminary Results , and receipt of Vinh Hoan Co., Ltd./Corp.'s and Petitioners' (the Catfish Farmers of America and individual U.S. catfish processors) case briefs, the Department requested and received new information from Vinh Hoan on which the Department provided interested parties an opportunity to comment. Based on Vinh Hoan's submission and parties' additional comments, the Department intends to request additional information from Vinh Hoan. Consequently, in accordance with 19 CFR 351.302(b), the Department is extending the time period for issuing the final results in the instant review by 90 days. Therefore, the final results will be due no later than October 5, 2008. As October 5, 2008, falls on a Sunday, our final results will be issued no later than Monday, October 6, 2008.

This notice is published in accordance with section 771(i) of the Tariff Act of 1930, as amended.

On April 25, 2008, the Department published in the Federal Register its preliminary determination that raw flexible magnets from the PRC are being, or are likely to be, sold in the United States at LTFV, as provided in the Act. See Preliminary Determination of Sales at Less Than Fair Value: Raw Flexible Magnets from the People's Republic of China , 73 FR 22327 (April 25, 2008) (“ Preliminary Determination ”). For the Preliminary Determination , the Department assigned a 185.28 percent dumping margin to the PRC-wide entity - including Polyflex Magnets Ltd. (“Polyflex”) - and a 105.00 percent dumping margin to Guangzhou Newlife Magnet Co., Ltd. (“Newlife”), a separate rate applicant. In May and June 2008, Magnum Magnetics Corporation (“Petitioner”), Target Corporation (“Target”), A-L-L Magnetics LLP (“A-L-L”), and SH Industries, LLC (“SH Industries”) filed comments regarding the scope of the investigation, pursuant to the Department's request for scope comments contained in the Preliminary Determination . See “Scope Comments” section below. No party submitted case briefs.

As discussed below, we have made certain changes to the language describing the scope of this investigation. Otherwise, because no party submitted case briefs and there are no other circumstances which warrant the revision of our Preliminary Determination , we have not made changes to our analysis or the dumping margins assigned in the Preliminary Determination .

The period of investigation (“POI”) is January 1, 2007, through June 30, 2007. This period comprises the two most recently completed fiscal quarters prior to the month in which the petition was filed ( i.e. , September 2007). See 19 CFR 351.204(b)(1).

The products covered by this investigation are certain flexible magnets regardless of shape, 1 color, or packaging. 2 Subject flexible magnets are bonded magnets composed (not necessarily exclusively) of (i) any one or combination of various flexible binders (such as polymers or co-polymers, or rubber) and (ii) a magnetic element, which may consist of a ferrite permanent magnet material (commonly, strontium or barium ferrite, or a combination of the two), a metal alloy (such as NdFeB or Alnico), any combination of the foregoing with each other or any other material, or any other material capable of being permanently magnetized.

Subject flexible magnets may be in either magnetized or unmagnetized (including demagnetized) condition, and may or may not be fully or partially laminated or fully or partially bonded with paper, plastic, or other material, of any composition and/or color. Subject flexible magnets may be uncoated or may be coated with an adhesive or any other coating or combination of coatings.

Specifically excluded from the scope of this investigation are printed flexible magnets, defined as flexible magnets (including individual magnets) that are laminated or bonded with paper, plastic, or other material if such paper, plastic, or other material bears printed text and/or images, including but not limited to business cards, calendars, poetry, sports event schedules, business promotions, decorative motifs, and the like. This exclusion does not apply to such printed flexible magnets if the printing concerned consists of only the following: a trade mark or trade name; country of origin; border, stripes, or lines; any printing that is removed in the course of cutting and/or printing magnets for retail sale or other disposition from the flexible magnet; manufacturing or use instructions ( e.g. , “print this side up,” “this side up,” “laminate here”); printing on adhesive backing (that is, material to be removed in order to expose adhesive for use such as application of laminate) or on any other covering that is removed from the flexible magnet prior or subsequent to final printing and before use; non-permanent printing (that is, printing in a medium that facilitates easy removal, permitting the flexible magnet to be re-printed); printing on the back (magnetic) side; or any combination of the above.

All products meeting the physical description of subject merchandise that are not specifically excluded are within the scope of this investigation. The products subject to the investigation are currently classifiable principally under subheadings 8505.19.10 and 8505.19.20 of the Harmonized Tariff Schedule of the United States (“HTSUS”). The HTSUS subheadings are provided only for convenience and customs purposes; the written description of the scope of this proceeding is dispositive.

In the Preliminary Determination , the Department explained that, on November 7, 2007, SH Industries, a U.S. importer of subject merchandise, argued that magnetic photo pockets, which are flexible magnets with clear plastic material fused to the magnet to form a pocket into which photographs and other items may be inserted for display, should be excluded from the scope of the antidumping and countervailing duty investigations on raw flexible magnets from the PRC and Taiwan. On November 13, 2007, Petitioner filed a response to the request by SH Industries, arguing that magnetic photo pockets are within the scope of the investigations. On April 11, 2008, Petitioner submitted additional arguments concerning this issue. Because we received this letter only four business days before the statutory deadline for the Preliminary Determination , we did not have an opportunity to consider it prior to issuance of the Preliminary Determination .

In the Preliminary Determination , 73 FR at 22333, the Department invited interested parties to submit comments on Petitioner's April 11, 2008, submission and to present evidence concerning the meaning of the terms “sheeting, strips, and profiles” as those terms are used within the industry. Additionally, because the scope language stated that “subject merchandise may be of any color and may or may not be laminated or bonded with paper, plastic or other material, which paper, plastic or other material may be of any composition and/or color,” the Department encouraged interested parties to comment on whether the plastic photo pocket fused to the flexible magnet satisfies this description. In addition, the Department stated that interested parties could submit information that would be relevant in an analysis conducted pursuant to 19 CFR 351.225(k)(2).

In May and June 2008, Petitioner, Target, A-L-L, and SH Industries filed comments and rebuttal comments regarding the scope of the investigations and magnetic photo pockets. On June 9, 2008, officials from the Department met with representatives of Target to discuss the scope of the investigations. See “Memorandum to the File,” dated June 10, 2008. On June 13, 2008, counsel for Petitioner met with officials from the Department to discuss the scope of the investigations. See “Memorandum to the File,” dated June 16, 2008.

The Department has analyzed the comments submitted by SH Industries, Target, A-L-L, and Petitioner and has determined that magnetic photo pockets are within the scope of the investigations. The Department has also modified the language describing the scope of these investigations to clarify the product coverage. In its request, SH Industries acknowledges that its magnetic photo pockets consist of flexible magnet material with a layer of plastic laminate fused along the sides of the flexible magnet. At no point does SH Industries argue that the flexible magnetic material in its photo pockets does not meet the physical description of the flexible magnets covered by the scope of the investigations. Rather, SH Industries argues that the attachment of a layer of clear plastic to the flexible magnet results in a product that is outside the scope of the investigations because the purpose of the product is to protect photographs.

Similarly, Target asserts that, rather than being a raw flexible magnet, magnetic photo pockets are properly characterized as finished retail products which use magnetic sheeting as an input. Target also argues that the clear plastic laminate is neither bonded nor laminated to the magnetic sheeting.

A-L-L argues that the scope should be limited to products produced by the Petitioner as evidenced by inclusion on the Petitioner's website.

As an initial matter, the Department does not generally define subject merchandise by end-use application. Moreover, because the language of the scope stated originally that “{s}ubject merchandise may be of any color and may or may not be laminated or bonded with paper, plastic, or other material, which paper, plastic, or other material may be of any composition and/or color,” Preliminary Determination , 73 FR at 22332, the plastic laminate fused to the sides of the flexible magnet does not remove the photo pockets from the scope of the investigations. Finally, the issue of whether an item appears on the Petitioner's website is not relevant to our analysis. For these reasons, we have determined that the magnetic photo pockets described by SH Industries are within the scope of the investigations. In addition, we have clarified that “{s}ubject flexible magnets may be in either magnetized or unmagnetized (including demagnetized) condition, and may or may not be fully or partially laminated or fully or partially bonded with paper, plastic, or other material, of any composition and/or color.” Finally, because we have received inquiries concerning the terminology in the scope language and product coverage, we have clarified product coverage by reordering the scope language and including certain explanatory definitions. Our revised scope language neither enlarges nor contracts product coverage. See “Scope of Investigation” section above.

The Department received a scope-ruling request from Magnet LLC on May 21, 2008. Because this request was made after the Preliminary Determination , the Department has not addressed this request in this final determination. The Department will consider Magnet LLC's scope-ruling request in the event the Department publishes an antidumping duty order in this proceeding.

In the Preliminary Determination , the Department considered the PRC to be a non-market economy (“NME”) country. In accordance with section 771(18)(C)(i) of the Act, any determination that a country is an NME country shall remain in effect until revoked by the administering authority. See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China: Preliminary Results of 2001-2002 Administrative Review and Partial Rescission of Review , 68 FR 7500 (February 14, 2003), unchanged in Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China: Final Results of 2001-2002 Administrative Review and Partial Rescission of Review , 68 FR 70488 (December 18, 2003). No party has commented on the Department's classification of the PRC as an NME. Therefore, for the final determination, we continue to consider the PRC to be an NME.

In proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department's policy to assign all exporters of merchandise subject to an investigation in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. See Final Determination of Sales at Less Than Fair Value: Sparklers from the People's Republic of China , 56 FR 20588 (May 6, 1991), as amplified by Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China , 59 FR 22585 (May 2, 1994), and 19 CFR 351.107(d).

In the Preliminary Determination , we found that Newlife demonstrated its eligibility for separate-rate status. Since the publication of the Preliminary Determination , no party has commented on Newlife's eligibility for separate-rate status. For the final determination, we continue to find that the evidence placed on the record of this investigation by Newlife demonstrates both a de jure and de facto absence of government control with respect to its respective exports of the merchandise under investigation. Thus, we continue to find that Newlife is eligible for separate-rate status. Normally the separate rate is determined based on the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding de minimis margins or margins based entirely on adverse facts available (“AFA”). See section 735(c)(5)(A) of the Act. In this case, given the absence of participating respondents and having calculated no margins, we have assigned to Newlife the simple average of the margins alleged in the petition, i.e. , 105.00 percent. See section 735(c)(5)(B) of the Act and Preliminary Determination , 73 FR at 22329-30.

We determined in the Preliminary Determination that because Polyflex withdrew from the investigation, thus preventing the Department from asking additional questions on its separate rate status and preventing the Department from verifying its responses, the Department has no basis upon which to grant Polyflex a separate rate. We received no comments on this denial of a separate rate. Although Polyflex remains a mandatory respondent, the Department will continue to consider Polyflex part of the PRC-wide entity because it failed to demonstrate that it qualifies for a separate rate.

In the Preliminary Determination , the Department found that certain companies did not respond to our requests for information. See Preliminary Determination , 73 FR at 22330. We treated these PRC producers/exporters as part of the PRC-wide entity because they did not demonstrate that they operate free of government control over their export activities. Id . In addition, in the Preliminary Determination , the Department applied total AFA to Polyflex. We determined, as AFA, that Polyflex was not eligible for a separate rate and we are treating Polyflex as part of the PRC-wide entity. No additional information was placed on the record with respect to any of these companies after the Preliminary Determination . Therefore, pursuant to section 776(a)(2)(A) of the Act, the Department continues to find that the use of facts available is appropriate to determine the PRC-wide rate.

Section 776(b) of the Act provides that, in selecting from among the facts otherwise available, the Department may employ an adverse inference if an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information. See Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products From the Russian Federation , 65 FR 5510, 5518 (February 4, 2000). See also “Statement of Administrative Action ” accompanying the URAA, H.R. Rep. No. 103-316, vol. 1, at 870 (1994). We determine that, because the PRC-wide entity did not respond to our request for information, it has failed to cooperate to the best of its ability. Therefore, the Department finds that, in selecting from among the facts otherwise available, an adverse inference is appropriate for the PRC-wide entity.

Because we begin with the presumption that all companies within an NME country are subject to government control, and because only Newlife has overcome that presumption, we are applying a single antidumping rate ( i.e. , the PRC-wide entity rate) to all other exporters of subject merchandise from the PRC. Such companies did not demonstrate entitlement to a separate rate. See , e.g. , Synthetic Indigo From the People's Republic of China: Notice of Final Determination of Sales at Less Than Fair Value , 65 FR 25706 (May 3, 2000). The PRC-wide entity rate applies to all entries of subject merchandise except for entries from Newlife.

In the Preliminary Determination , we assigned to the PRC-wide entity the highest margin alleged in the petition, as revised in Petitioner's supplemental responses, i.e. , 185.28 percent. See Preliminary Determination , 73 FR at 22331. We received no comments on this rate. For the final determination, we have continued to assign to the PRC-wide entity the rate of 185.28 percent.

Section 776(c) of the Act provides that, when the Department relies on secondary information in using the facts otherwise available, it must, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. We have interpreted “corroborate” to mean that we will, to the extent practicable, examine the reliability and relevance of the information submitted. See Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products From Brazil , 65 FR 5554, 5568 (February 4, 2000); see , e.g. , 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).

Because there are no cooperating mandatory respondents, to corroborate the 105.00 and 185.28 percent margins used as facts available for Newlife and as AFA for the PRC-wide entity, respectively, we relied upon our pre-initiation analysis of the adequacy and accuracy of the information in the petition. See “Import Administration AD Investigation Initiation Checklist: Raw Flexible Magnets from the People's Republic of China,” (October 11, 2007). During the initiation stage, we examined evidence supporting the calculations in the petition and the supplemental information provided by Petitioner to determine the probative value of the margins alleged in the petition. During our pre-initiation analysis, we examined the information used as the basis of export price (“EP”) and normal value (“NV”) in the petition, and the calculations used to derive the alleged margins. Also during our pre-initiation analysis, we examined information from various independent sources provided either in the petition or, based on our requests, in supplements to the petition, which corroborated key elements of the EP and NV calculations. Id . We received no comments as to the relevance or probative value of this information. Therefore, for the final determination, the Department finds that the rates derived from the petition for purposes of initiation have probative value for the purpose of being selected as the facts available rate for Newlife and the AFA rate assigned to the PRC-wide entity.

We determine that the following percentage dumping margins exist for the POI:

We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b).

In accordance with 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 raw flexible magnets from the PRC, as described in the “Scope of Investigation” section, entered, or withdrawn from warehouse, for consumption on or after April 25, 2008, the date of publication of the Preliminary Determination in the Federal Register . We will instruct CBP to require a cash deposit or the posting of a bond equal to the weighted-average dumping margin amount by which the NV exceeds U.S. price, as follows: (1) The rate for the exporter/producer combinations listed in the chart above will be the rate we have determined in this final determination; (2) for all PRC exporters of subject merchandise which have not received their own rate, the cash-deposit rate will be the PRC-wide entity rate; and (3) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash-deposit rate will be the rate applicable to the PRC exporter/producer combination that supplied that non-PRC exporter. These suspension-of-liquidation instructions 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 final determination of sales at LTFV. As our final determination is affirmative, in accordance with section 735(b)(2) of the Act, within 45 days the ITC will determine whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports or sales (or the likelihood of sales) for importation of the subject merchandise. If the ITC determines that material injury or threat of material 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 to assess, upon further instruction by the Department, 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 also serves as a reminder to the 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. Timely notification of return or 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)(1) of the Act.

Background

On April 25, 2008, the Department of Commerce (the Department) published the preliminary determination of sales at less than fair value (LTFV) in the antidumping investigation of raw flexible magnets from Taiwan. See Notice of Preliminary Determination of Sales at Less Than Fair Value: Raw Flexible Magnets from Taiwan, 73 FR 22332 (April 25, 2008) ( Preliminary Determination ). Interested parties were invited to comment on our Preliminary Determination.

The period of investigation is July 1, 2006, through June 30, 2007.

The products covered by this investigation are certain flexible magnets regardless of shape, 1 color, or packaging. 2 Subject flexible magnets are bonded magnets composed (not necessarily exclusively) of (i) any one or combination of various flexible binders (such as polymers or co-polymers, or rubber) and (ii) a magnetic element, which may consist of a ferrite permanent magnet material (commonly, strontium or barium ferrite, or a combination of the two), a metal alloy (such as NdFeB or Alnico), any combination of the foregoing with each other or any other material, or any other material capable of being permanently magnetized.

Subject flexible magnets may be in either magnetized or unmagnetized (including demagnetized) condition, and may or may not be fully or partially laminated or fully or partially bonded with paper, plastic, or other material, of any composition and/or color. Subject flexible magnets may be uncoated or may be coated with an adhesive or any other coating or combination of coatings.

Specifically excluded from the scope of this investigation are printed flexible magnets, defined as flexible magnets (including individual magnets) that are laminated or bonded with paper, plastic, or other material if such paper, plastic, or other material bears printed text and/or images, including but not limited to business cards, calendars, poetry, sports event schedules, business promotions, decorative motifs, and the like. This exclusion does not apply to such printed flexible magnets if the printing concerned consists of only the following: a trade mark or trade name; country of origin; border, stripes, or lines; any printing that is removed in the course of cutting and/or printing magnets for retail sale or other disposition from the flexible magnet; manufacturing or use instructions (e.g., “print this side up,” “this side up,” “laminate here”); printing on adhesive backing (that is, material to be removed in order to expose adhesive for use such as application of laminate) or on any other covering that is removed from the flexible magnet prior or subsequent to final printing and before use; non-permanent printing (that is, printing in a medium that facilitates easy removal, permitting the flexible magnet to be re-printed); printing on the back (magnetic) side; or any combination of the above.

All products meeting the physical description of subject merchandise that are not specifically excluded are within the scope of this investigation. The products subject to the investigation are currently classifiable principally under subheadings 8505.19.10 and 8505.19.20 of the Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS subheadings are provided only for convenience and customs purposes; the written description of the scope of this proceeding is dispositive.

In the Preliminary Determination, the Department explained that, on November 7, 2007, SH Industries, a U.S. importer of subject merchandise, argued that magnetic photo pockets, which are flexible magnets with clear plastic material fused to the magnet to form a pocket into which photographs and other items may be inserted for display, should be excluded from the scope of the antidumping and countervailing duty investigations on raw flexible magnets from the People's Republic of China and Taiwan. On November 13, 2007, Magnum Magnetics Corporation (Petitioner) filed a response to the request by SH Industries, arguing that magnetic photo pockets are within the scope of the investigations. On April 11, 2008, Petitioner submitted additional arguments concerning this issue. Because we received this letter only four business days before the statutory deadline for the Preliminary Determination, we did not have an opportunity to consider it prior to issuance of the Preliminary Determination.

In the Preliminary Determination, 73 FR at 22333, the Department invited interested parties to submit comments on Petitioner's April 11, 2008, submission and to present evidence concerning the meaning of the terms “sheeting, strips, and profiles” as those terms are used within the industry. Additionally, because the scope language stated that “subject merchandise may be of any color and may or may not be laminated or bonded with paper, plastic or other material, which paper, plastic or other material may be of any composition and/or color,” the Department encouraged interested parties to comment on whether the plastic photo pocket fused to the flexible magnet satisfies this description. In addition, the Department stated that interested parties could submit information that would be relevant in an analysis conducted pursuant to 19 CFR 351.225(k)(2).

In May and June 2008, Petitioner, Target, A-L-L, and SH Industries filed comments and rebuttal comments regarding the scope of the investigations and magnetic photo pockets. On June 9, 2008, officials from the Department met with representatives of Target to discuss the scope of the investigations. See Memorandum to the File, dated June 10, 2008. On June 13, 2008, counsel for Petitioner met with officials from the Department to discuss the scope of the investigations. See Memorandum to the File, dated June 16, 2008.

The Department has analyzed the comments submitted by SH Industries, Target, A-L-L, and Petitioner and has determined that magnetic photo pockets are within the scope of the investigations. The Department has also modified the language describing the scope of these investigations to clarify the product coverage. In its request, SH Industries acknowledges that its magnetic photo pockets consist of flexible magnet material with a layer of plastic laminate fused along the sides of the flexible magnet. At no point does SH Industries argue that the flexible magnetic material in its photo pockets does not meet the physical description of the flexible magnets covered by the scope of the investigations. Rather, SH Industries argues that the attachment of a layer of clear plastic to the flexible magnet results in a product that is outside the scope of the investigations because the purpose of the product is to protect photographs.

Similarly, Target asserts that, rather than being a raw flexible magnet, magnetic photo pockets are properly characterized as finished retail products which use magnetic sheeting as an input. Target also argues that the clear plastic laminate is neither bonded nor laminated to the magnetic sheeting.

A-L-L argues that the scope should be limited to products produced by the Petitioner as evidenced by inclusion on the Petitioner's Web site.

As an initial matter, the Department does not generally define subject merchandise by end-use application. Moreover, because the language of the scope stated originally that “{s}ubject merchandise may be of any color and may or may not be laminated or bonded with paper, plastic, or other material, which paper, plastic, or other material may be of any composition and/or color,” Preliminary Determination, 73 FR at 22332, the plastic laminate fused to the sides of the flexible magnet does not remove the photo pockets from the scope of the investigations. Finally, the issue of whether an item appears on the Petitioner's Web site is not relevant to our analysis. For these reasons, we have determined that the magnetic photo pockets described by SH Industries are within the scope of the investigations. In addition, we have clarified that “{s}ubject flexible magnets may be in either magnetized or unmagnetized (including demagnetized) condition, and may or may not be fully or partially laminated or fully or partially bonded with paper, plastic, or other material, of any composition and/or color.” Finally, because we have received inquiries concerning the terminology in the scope language and product coverage, we have clarified product coverage by reordering the scope language and including certain explanatory definitions. Our revised scope language neither enlarges nor contracts product coverage. See Scope of Investigation section above.

The Department received a scope-ruling request from Magnet LLC on May 21, 2008. Because this request was made after the Preliminary Determination, the Department has not addressed this request in this final determination. The Department will consider Magnet LLC's scope-ruling request in the event the Department publishes an antidumping duty order in this proceeding.

As discussed above, we have made certain changes to the language describing the scope of this investigation. Otherwise, because no party submitted case briefs and there are no other circumstances which warrant the revision of our Preliminary Determination, we have not made changes to our analysis or the dumping margins assigned in the Preliminary Determination.

For the final determination, we continue to find that, by failing to provide information we requested, Kin Fong Magnets Co., Ltd. (Kin Fong), Magruba Flexible Magnets Co., Ltd. (Magruba), and JASDI Magnet Co., Ltd. (JASDI), all mandatory respondents, did not act to the best of their ability in responding to our requests for information. Thus, the Department continues to find that the use of adverse facts available is warranted for these companies under sections 776(a)(2) and (b) of the Act. See Preliminary Determination, 73 FR at 22334. As we explained in Preliminary Determination, the rate of 38.03 percent we selected as the adverse facts-available rate is the highest margin alleged in the petition. Id. 73 FR at 22335. See also Antidumping Duty Investigation Initiation Checklist: Raw Flexible Magnets from Taiwan (October 18, 2007) ( Taiwan Initiation Checklist ). We included the range of margins from our Taiwan Initiation Checklist in Notice of Initiation of Antidumping Duty Investigations: Raw Flexible Magnets from the People's Republic of China and Taiwan, 72 FR 59071, 59075 (October 18, 2007). Further, as discussed in Preliminary Determination, we corroborated the adverse facts-available rate pursuant to section 776(c) of the Act.

Section 735(c)(5)(B) of the Act provides that, where the estimated weighted-averaged dumping margins established for all exporters and producers individually investigated are zero or de minimis or are determined entirely under section 776 of the Act, the Department may use any reasonable method to establish the estimated all-others rate for exporters and producers not individually investigated. Our recent practice under these circumstances has been to assign, as the all-others rate, the simple average of the margins in the petition. See Notice of Final Determination of Sales at Less Than Fair Value: Glycine from the Republic of Korea, 72 FR 67275 (November 28, 2007); see also Notice of Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances: Glycine from Japan, 72 FR 67271 (November 28, 2007). Consistent with our practice we calculated a simple average of the rates in the Petition, as listed in the Initiation Notice, and assigned this rate to all other manufacturers/exporters. For details of these calculations, see the memorandum from Catherine Cartsos to File entitled “Antidumping Duty Investigation on Raw Flexible Magnets from Taiwan—Analysis Memo for All-Others Rate,” dated April 18, 2008.

We determine that the following weighted-average dumping margins exist for the period July 1, 2006, through June 30, 2007:

Pursuant to section 735(c)(1)(B) of the Act and 19 CFR 351.211(b)(1), we will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of subject merchandise from Taiwan entered, or withdrawn from warehouse, for consumption on or after April 25, 2008, the date of the publication of Preliminary Determination. We will instruct CBP to require a cash deposit or the posting of a bond equal to the weighted-average margin, as indicated in the chart above, as follows: (1) The rate for the mandatory respondents will be the rates we have determined in this final determination; (2) if the exporter is not a firm identified in this investigation but the producer is, the rate will be the rate established for the producer of the subject merchandise; (3) the rate for all other producers or exporters will be 31.20 percent. These suspension-of-liquidation instructions 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 final determination. As our final determination is affirmative and in accordance with section 735(b)(2) of the Act, the ITC will determine, within 45 days, whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports or sales (or the likelihood of sales) for importation of the subject merchandise. If the ITC determines that material injury or threat of material 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 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 also serves as a 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. Timely 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 pursuant to sections 735(d) and 777(i)(1) of the Act.

The SPP was launched in March of 2005 to increase security and enhance prosperity among the United States, Canada and Mexico through greater cooperation and information sharing. Consistent with those goals, and to serve as a catalyst for the development of electronic commerce and online business in North America, officials from Industry Canada, Mexico's Ministry of the Economy, and the United States Department of Commerce recently signed the Statement on the Free Flow of Information and Trade in North America ( http://spp.gov/pdf/Eng_Statement_of_Free_Flow.pdf ), which formally established the Trilateral Committee. The Statement was announced at the SPP Leaders meeting April 21-22 in New Orleans.

The requested amendments have been granted under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq. ), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq. ), the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR 222-226), and the Fur Seal Act of 1966, as amended (16 U.S.C. 1151 et seq. ).

Both permits were amended to extend the expiration dates from June 30, 2008 to June 30, 2009.

Issuance of these permit amendments, as required by the ESA, was based on a finding that such permit amendments: (1) were applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) are consistent with the purposes and policies set forth in section 2 of the ESA.

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;

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

Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802-1668; phone (907)586-7221; fax (907)586-7249;

Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213; phone (562)980-4001; fax (562)980-4018;

Pacific Islands Region, NMFS, 1601 Kapiolani Blvd., Rm 1110, Honolulu, HI 96814-4700; phone (808)944-2200; fax (808)973-2941;

Northeast Region, NMFS, One Blackburn Drive, Gloucester, MA 01930-2298; phone (978)281-9300; fax (978)281-9394; and

Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, Florida 33701; phone (727)824-5312; fax (727)824-5309.

The AP will meet to discuss the items contained in the following agenda:

•Call to order

•Annual Catch Limits (ACLs) /Accountability Measures (AM) Guidelines Summary Presentation

•Discussion on ACLs/AMs for Puerto Rico and the U.S. Virgin Islands

•Recommendations of the AP to the CFMC

•Other Business

The meeting is open to the public, and will be conducted in English. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues.

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

This meeting is physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolon, Executive Director, Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-1920, telephone: (787) 766-5926, at least 5 days prior to the meeting date.

The MMPA, 16 U.S.C. 1361 et seq. , allows the entry into the United States of yellowfin tuna harvested by purse seine vessels in the ETP under certain conditions. If requested by the harvesting nation, the Assistant Administrator will determine whether to make an affirmative finding based upon documentary evidence provided by the government of the harvesting nation, the IATTC, or the Department of State.

The affirmative finding process requires that the harvesting nation is meeting its obligations under the IDCP and obligations of membership in the IATTC. Every 5 years, the government of the harvesting nation must request an affirmative finding and submit the required documentary evidence directly to the Assistant Administrator. On an annual basis, NMFS will review the affirmative finding and determine whether the harvesting nation continues to meet the requirements. A nation may provide information related to compliance with IDCP and IATTC measures directly to NMFS on an annual basis or may authorize the IATTC to release the information to NMFS to annually renew an affirmative finding determination without an application from the harvesting nation.

An affirmative finding will be terminated, in consultation with the Secretary of State, if the Assistant Administrator determines that the requirements of 50 CFR 216.24(f) are no longer being met or that a nation is consistently failing to take enforcement actions on violations, thereby diminishing the effectiveness of the IDCP.

As a part of the affirmative finding process set forth in 50 CFR 216.24(f), the Assistant Administrator considered documentary evidence submitted by the Republic of El Salvador or obtained from the IATTC and the Department of State and has determined that El Salvador has met the MMPA's requirements to receive an affirmative finding.

After consultation with the Department of State, the Assistant Administrator issued the Republic of El Salvador's affirmative finding, allowing the continued importation into the United States of yellowfin tuna and products derived from yellowfin tuna harvested in the ETP by El Salvadorian-flag purse seine vessels or purse seine vessels operating under El Salvadorian jurisdiction. El Salvador's affirmative finding will remain valid through March 31, 2013, subject to subsequent annual reviews by NMFS.

Price, performance, and/or implementation of socio-economic policies may be affected by make-or-buy decisions under certain Government prime contracts. Accordingly, FAR 15.407-2, Make-or-Buy Programs—

(i) Sets forth circumstances under which a Government contractor must submit for approval by the contracting officer a make-or-buy program, i.e., a written plan identifying major items to be produced or work efforts to be performed in the prime contractor's facilities and those to be subcontracted;

(ii) Provides guidance to contracting officers concerning the review and approval of the make-or-buy programs; and

(iii) Prescribes the contract clause at FAR 52.215-9, Changes or Additions to Make-or-Buy Programs, which specifies the circumstances under which the contractor is required to submit for the contracting officer's advance approval a notification and justification of any proposed change in the approved make-or-buy program.

The information is used to assure the lowest overall cost to the Government for required supplies and services.

Respondents: 150.

Responses per Respondent: 3.

Total Responses: 450.

Hours per Response: 8.

Total Burden Hours: 3,600.

Obtaining Copies of Proposals: Requesters may obtain a copy of the information collection documents from the General Services Administration, Regulatory Secretariat Division (VPR), Room 4041, Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control No. 9000-0078, Make-or-Buy Program, in all correspondence.

A. Purpose

As a result of the Department of Commerce (Commerce) publishing a final rule in the Federal Register implementing Public Law 98-620 (52 FR 8552, March 18, 1987), a revision to FAR Subpart 27.3 to implement the Commerce regulation was published in the Federal Register as an interim rule on June 12, 1989 (54 FR 25060). The final rule was published without change on June 21, 1990.

A Government contractor must report all subject inventions to the contracting officer, submit a disclosure of the invention, and identify any publication, or sale, or public use of the invention (52.227-11(c), 52.227-12(c), and 52.227-13(e)(2)). Contractors are required to submit periodic or interim and final reports listing subject inventions (27.303(b)uuuuuuui(2)(i) and (ii)). In order to ensure that subject inventions are reported, the contractor is required to establish and maintain effective procedures for identifying and disclosing subject inventions (52.227-11, Alternate IV; 52.227-13(e)(1)). In addition, the contractor must require his employees, by written agreements, to disclose subject inventions (52.227-11(f)(2); 52.227-12(e)(2); 52.227-13(e)(4)). The contractor also has an obligation to utilize the subject invention, and agree to report, upon request, the utilization or efforts to utilize the subject invention (27.302(e); 52.227-11(f); 52.227-12(f)).

Respondents: 1,200.

Responses per Respondent: 9.75.

Total Responses: 11,700.

Hours per Response: 3.9.

Total Burden Hours: 45,630.

Obtaining Copies of Proposals: Requesters may obtain a copy of the information collection documents from the General Services Administration, Regulatory Secretariat Division (VPR), Room 4041, 1800 F Street, NW., Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control No. 9000-0095, Commerce Patent Regulations, in all correspondence.

A material change in the administration of the State plan (material change), as referenced by the Help America Vote Act (HAVA) Section 254(a)(11), occurs under five different circumstances. These guidelines are based on the general federal requirements for updating State plans and post award changes contained in Office of Management and Budget Circular A-102 (41 CFR part 105-71). Material changes require a State to amend the State plan according to the provisions of HAVA Sections 254, 255, and 256. The examples provided below may not be applicable in all circumstances; likewise, the specific instances for when the State plan should be amended are not limited to the examples provided. The Election Assistance Commission (EAC) advises States to amend the State plan in the event of any of following five circumstances:

(1) New or revised Federal laws or regulations affecting HAVA implementation. [Based on requirement in 41 CFR 105-71.111(d)(1)]

New or amended Federal statutes or regulations, including appropriations statutes, resulting in a change in scope, purpose, budget, or period of availability of funds requires an amended State plan.

(2) New or revised State law, organization, or policy affecting HAVA implementation. [Based on requirement in 41 CFR 105-71.111(d)(2)]

New or amended State statutes, organization, or policy resulting in a change in scope, purpose, budget, or period of availability of funds requires an amended State plan.

(3) A budget change of 10 percent or more of the HAVA fiscal year's cumulative budget across budgeted programs, activities, functions or activities. [Based on requirement in 41 CFR 105-71.130(c)(1)(ii)]

A change of more than 10 percent of the cumulative budget of the fiscal year's requirement payment from one budgeted category to another requires an amended State plan.

(4) A revision in the scope or objective of the project. [Based on requirement in 41 CFR 105-71.130(d)(1)]

A change in the means by which a State plans to achieve the HAVA objectives requires an amended State plan.

(5) An extension in the period of availability of HAVA funds. [Based on requirement in 41 CFR 105-71.130(d)(2)]

An increase in the amount of funding authorized under HAVA appropriated to the State not provided for in the original State plan or funds remaining in a fiscal year not covered by the original State plan requires an amended State plan.

In accordance with 10 CFR 430.27(l) and 10 CFR 431.401(f)(4), DOE gives notice of the issuance of its Decision and Order as set forth below. In the Decision and Order, DOE grants Daikin a waiver from the existing DOE commercial package air conditioner and heat pump test procedures  1 for its VRV multi-split products, subject to a condition requiring Daikin to test and rate its VRV multi-split products pursuant to the alternate test procedure provided in this notice. Further, today's Decision and Order requires that Daikin may not make any representations concerning the energy efficiency of these products unless such product has been tested in accordance with the DOE test procedure, consistent with the provisions and restrictions of the alternate test procedure set forth in the Decision and Order below, and such representations fairly disclose the results of such testing. 2 (42 U.S.C. 6293(c); 42 U.S.C. 6314(d))

DOE is denying as moot Daikin's request for a waiver from the DOE residential central air conditioner and heat pump test procedures  3 for its VRV-S multi-split products. As amended, the applicable DOE test procedure for these residential products will allow Daikin to test and rate its residential VRV-S multi-split products.

In the Matter of: Daikin U.S. Corporation (Daikin) (Case No. CAC-011).

Title III of the Energy Policy and Conservation Act (EPCA) sets forth a variety of provisions concerning energy efficiency, including Part A of Title III which establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.”  4 (42 U.S.C. 6291-6309) Similar to the Program in Part A, Part A-1 of Title III provides for an energy efficiency program titled, “Certain Industrial Equipment,” which includes commercial air conditioning equipment, package boilers, water heaters, and other types of commercial equipment. 5 (42 U.S.C. 6311-6317)

Today's notice involves residential products under Part A, as well as commercial equipment under Part A-1. Both parts specifically provide for definitions, test procedures, labeling provisions, energy conservation standards, and the authority to require information and reports from manufacturers. Further, both parts generally authorize the Secretary of Energy (the Secretary) to prescribe test procedures that are reasonably designed to produce results which measure energy efficiency, energy use, or estimated annual operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3); 42 U.S.C. 6314(a)(2))

Relevant to the current Petition for Waiver, the test procedure for residential central air conditioning and heat pump products is set forth in 10 CFR part 430, subpart B, Appendix M. On October 22, 2007, DOE amended the test procedures for residential central air conditioners and central air conditioning heat pumps to implement test procedure changes for small-duct, high-velocity systems, two-capacity units, and to update references to the current American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) standards. 72 FR 59906. The October 22, 2007, final rule became effective on April 21, 2008. These amendments to the DOE test procedures set forth in 10 CFR part 430, subpart B, Appendix M now allow Daikin to test its VRV-S residential multi-split air conditioners and heat pumps. Therefore, a waiver is no longer necessary for Daikin's VRV-S residential multi-split air conditioners and heat pumps. Accordingly, the following discussion will focus only on Daikin's commercial VRV products, for which its waiver request remains pertinent.

For commercial package air conditioning and heating equipment, EPCA provides that “the test procedures shall be those generally accepted industry testing procedures or rating procedures developed or recognized by the Air-Conditioning and Refrigeration Institute [ARI] or by the American Society of Heating, Refrigerating and Air-Conditioning Engineers [ASHRAE], as referenced in ASHRAE/IES Standard 90.1 and in effect on June 30, 1992.” (42 U.S.C. 6314(a)(4)(A)) Under 42 U.S.C. 6314(a)(4)(B), this section also directs the Secretary to amend the test procedure for a covered commercial product if the industry test procedure is amended, unless the Secretary determines that such a modified test procedure does not meet the statutory criteria set forth in 42 U.S.C. 6314(a)(2) and (3).

On December 8, 2006, DOE published a final rule adopting test procedures for commercial package air conditioning and heating equipment, effective January 8, 2007. 71 FR 71340. DOE adopted ARI Standard 210/240-2003 for commercial package air conditioning and heating equipment with capacities <65,000 British thermal units per hour (Btu/h) and ARI Standard 340/360-2004 for commercial package air conditioning and heating equipment with capacities ≥65,000 Btu/h and <240,000 Btu/h. Id. at 71371. Pursuant to this rulemaking, DOE's regulations at 10 CFR 431.95(b)(2) incorporate by reference the relevant ARI standards, and 10 CFR 431.96 directs manufacturers of commercial package air conditioning and heating equipment to use the appropriate procedure when measuring energy efficiency of those products. (The capacities of Daikin's commercial VRV multi-split products fall in the ranges covered by ARI Standard 340/360-2004.)

DOE's regulations for covered products contain provisions allowing a person to seek a waiver from the test procedure requirements for covered consumer products, for which the petitioner's basic model contains one or more design characteristics that prevent testing according to the prescribed test procedures, or when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1). The waiver provisions for commercial equipment are substantively identical to those for covered consumer products and are found at 10 CFR 431.401. Petitioners must include in their petition any alternate test procedures known to evaluate the basic model in a manner representative of its energy consumption. 10 CFR 430.27(b)(1)(iii); 10 CFR 431.401(b)(1)(iii).

The Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) may grant a waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l); 10 CFR 431.401(f)(4). Waivers generally terminate on the effective date of a final rule which prescribes amended test procedures appropriate to the model series manufactured by the petitioner, thereby eliminating any need for the continuation of the waiver. 10 CFR 430.27(m); 10 CFR 430.401(g).

The waiver process contained in DOE's regulations also allows any interested person who has submitted a Petition for Waiver to file an Application for Interim Waiver of the applicable test procedure requirements. 10 CFR 430.27(a)(2); 10 CFR 431.401(a)(2). The Assistant Secretary will grant an Interim Waiver request if it is determined that the applicant will experience economic hardship if the Interim Waiver is denied, if it appears likely that the Petition for Waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination of the Petition for Waiver. 10 CFR 430.27(g); 10 CFR 431.401(e)(3). An Interim Waiver remains in effect for a period of 180 days or until DOE issues its determination on the Petition for Waiver, whichever occurs first, and may be extended by DOE for 180 days, if necessary. 10 CFR 430.27(h); 10 CFR 431.401(e)(4).

On May 12, 2005, Daikin filed a Petition for Waiver and an Application for Interim Waiver from the test procedures applicable to its VRV-S and VRV lines of residential and commercial multi-split air conditioning and heating equipment. Daikin's petition requested a waiver from both the residential and commercial test procedures. As stated above, the applicable residential test procedures are contained in 10 CFR part 430, subpart B, Appendix M, and the applicable commercial test procedures are contained in ARI Standard 340/360-2004  6 (incorporated by reference at 10 CFR 431.95(b)(2)). Daikin requested a waiver from the applicable test procedures because it argued that the design characteristics of its VRV-S and VRV systems prevent testing according to the currently prescribed test procedures.

On July 2, 2007, DOE published in the Federal Register Daikin's Petition for Waiver and published notice of the granting of the Application for Interim Waiver which had been granted on August 14, 2006. 72 FR 35986. In a similar and relevant case, DOE published a Petition for Waiver from Mitsubishi Electric and Electronics USA, Inc. (MEUS) for products very similar to Daikin's VRV-S and VRV products. 71 FR 14858 (March 24, 2006). In the March 24, 2006 Federal Register notice, DOE also published and requested comment on an alternate test procedure for the MEUS products at issue. DOE stated that if it specified an alternate test procedure for MEUS in the subsequent Decision and Order, DOE would consider applying the same procedure to similar waivers for residential and commercial central air conditioners and heat pumps, including such products for which waivers had previously been granted. Most of the comments responded favorably to DOE's proposed alternate test procedure. Also, there was general agreement that an alternate test procedure is necessary while a final test procedure for these types of products is being developed. The MEUS Decision and Order, including the alternate test procedure, was published in the Federal Register on April 9, 2007. 72 FR 17528.

DOE received no comments on the Daikin Petition.

On May 12, 2005, Daikin submitted a Petition for Waiver and an Application for Interim Waiver from the test procedures applicable to residential and commercial package air conditioning and heating equipment for its new VRV-S and VRV multi-split products. Daikin's petition presented several arguments in support of its claim that the design characteristics of its VRV-S and VRV multi-split systems prevent testing according to the currently prescribed test procedures. Daikin claimed that there are the following difficulties with applying the test procedures: (1) There is no provision to accommodate having indoor units operating at several different static pressure ratings during a single test; (2) The precise number of part-load tests required for fully or infinitely variable speed products are not identified; (3) There is no direction about how to test systems that have millions of combinations of indoor units configurable to a single outdoor unit; (4) There is no test method to measure part-load performance of a system performing both heating and cooling functions at the same time.

Therefore, the Daikin Petition requested that DOE grant a waiver from existing test procedures until such time as a representative test procedure is developed and adopted for this class of products. Daikin did not include an alternate test procedure in its Petition for Waiver. (However, DOE understands that Daikin is actively working with ARI to develop test procedures that accurately reflect the operation and energy consumption of these particular product designs. 7 )

Regardless of their accuracy, DOE believes that these assertions are inapposite to the present case for the following reasons. First, for commercial systems, EPCA mandates use of the full-load energy efficiency ratio (EER) descriptor, and the relevant energy performance is the peak-load efficiency, not the seasonal energy savings. (42 U.S.C. 6313(a)(1)(C)) A waiver can only be granted if a test procedure does not fairly represent the peak-load energy consumption characteristics, which EER measures. Nevertheless, there are deficiencies in the current DOE test methods and calculation algorithms when applied to multi-split systems. DOE has previously acknowledged these limitations in its current test procedure, and accordingly, MEUS was granted a waiver on the following grounds:

1. No existing test procedure provides a method for testing and rating a system that utilizes one outdoor unit and sixteen indoor units.

2. No existing test procedure can provide a method for rating systems where the type and capacity of the indoor unit can be mixed in the same system. The multi-split system can mix together six different indoor models with seven different capacities, resulting in over 1,000 combinations.

Given the present situation, Daikin can make the same claims regarding its VRV multi-split products. Therefore, the bases for Daikin's Petition for Waiver involve: (1) The problem of being physically unable to test most of the complete systems in a laboratory; (2) difficulties associated with the regulatory requirement to test the highest-sales-volume combination; and (3) the lack of a method for predicting the performance of untested combinations.

As mentioned above, DOE recently addressed a situation regarding multi-split products that is relevant to the Daikin products at issue here. specifically, on March 24, 2006, DOE published in the Federal Register a Petition for Waiver from MEUS relating to its R410A CITY MULTI VRFZ products, which are very similar to Daikin's VRV multi-split products. 71 FR 14858. In that publication, DOE stated:

Since that time, DOE has developed such an alternate test procedure. That alternate test procedure served as the basis for the October 22, 2007 final rule's relevant amendments to the test procedures for residential central air conditioners and central air conditioning heat pumps found at 10 CFR part 430, subpart B, Appendix M, which became effective April 21, 2008. Since the residential test procedure is now in place for central air conditioners and central air conditioning heat pumps, this enables Daikin to make energy efficiency representations for its specified VRV-S residential multi-split products. Accordingly, a waiver for Daikin's residential units is no longer necessary. However, the same problem described above still applies to Daikin's commercial products. Therefore, DOE is issuing today's Decision and Order granting Daikin a test procedure waiver for its commercial VRV multi-split heat pumps and heat recovery systems, but is requiring the use of the alternate test procedure described below as a condition of Daikin's waiver. This alternate test procedure is substantially the same as the one that DOE applied to the MEUS waiver.

The alternate test procedure has two basic components. First, it permits Daikin to designate a “tested combination” for each model of outdoor unit. The indoor units designated as part of the tested combination must meet specific requirements. For example, the tested combination must have from two to five indoor units so that it can be tested in available test facilities. The tested combination must be tested according to the applicable DOE test procedure, as modified by the provisions of the alternate test procedure. Second, provision of a DOE test procedure that can be applied to Daikin's product allows it to represent the energy efficiency of that product, because any such representation must fairly disclose the results of such testing. The DOE test procedure, as modified by the alternate test procedure provided in this Decision and Order, provides for testing of a non-tested combination in two ways: (1) At an energy efficiency level determined under a DOE-approved alternative rating method; or, if method (1) is not available, then (2) at the efficiency level of the tested combination utilizing the same outdoor unit. Until an alternative rating method is developed, all combinations with a particular outdoor unit may use the rating of the combination tested with that outdoor unit.

DOE believes that allowing Daikin to make energy efficiency representations for non-tested combinations by adopting this alternate test procedure for its commercial products as described above is reasonable because the outdoor unit is the principal efficiency driver. The current test procedures for commercial products tend to rate these products conservatively. This is because the multi-zoning feature of these products, which enables them to cool only those portions of the building that require cooling, would be expected to use less energy than if the unit is operated to cool the entire home or a comparatively larger area of a commercial building in response to a single thermostat. This feature would not be captured by the test procedure, which requires full-load testing. Under full load, the entire building would require cooling. Additionally, the current test procedure for commercial equipment requires full-load testing, which disadvantages these products because they are optimized for best efficiency when operating with less than full loads. In fact, these products normally operate at part-load conditions. Therefore, the alternate test procedure will provide a conservative basis for assessing the energy efficiency for such commercial products.

For today's Decision and Order, the changes made by the final rule published in the Federal Register on October 22, 2007 to test procedure sections 2.1, 2.2.3, 2.4.1, 3.2.4 (including Table 6), 3.6.4 (including Table 12), 4.1.4.2, and 4.2.4.2 that apply to residential central air conditioners and heat pumps constitute mandatory elements of the alternate test procedure for the commercial products covered under this waiver. These changes allow indoor units to cycle off, allow the manufacturer to specify the compressor speed used during certain tests, and introduce a new algorithm for estimating power consumption.

With regard to the laboratory testing of commercial products, some of the difficulties associated with the existing test procedure are avoided by the alternate test procedure's requirements for choosing the indoor units to be used in the manufacturer-specified tested combination. For example, in addition to limiting the number of indoor units, another requirement is that all of the indoor units must meet the same minimum external static pressure. This requirement allows the test lab to manifold the outlets from each indoor unit into a common plenum that supplies air to a single airflow measuring apparatus. This requirement eliminates situations in which some of the indoor units are ducted and some are non-ducted. Without this requirement, the laboratory must evaluate the capacity of a subgroup of indoor coils separately, and then sum the separate capacities to obtain the overall system capacity. This would require that the test laboratory must be equipped with multiple airflow measuring apparatuses (which is unlikely), or that the test laboratory connect its one airflow measuring apparatus to one or more common indoor units until the contribution of each indoor unit has been measured.

Furthermore, DOE stated in the notice publishing the MEUS Petition for Waiver that if DOE decides to specify an alternate test procedure for MEUS, it would consider applying the procedure to waivers for similar residential and commercial central air conditioners and heat pumps produced by other manufacturers. 71 FR 14858, 14861 (March 24, 2006). Most of the comments received by DOE in response to the March 2006 notice favored the proposed alternate test procedure. The comments generally agreed that an alternate test procedure is appropriate for an interim period while a final test procedure for these products is being developed. Such action has been completed for residential central air conditioners and heat pumps.

Based on the discussion above, DOE believes that the testing problems described above would prevent testing of Daikin's VRV basic models according to the test procedures currently prescribed in ARI Standard 340/360-2004. After careful consideration, DOE has decided to adopt the alternate test procedure for Daikin's commercial products, with the clarifications discussed above.

DOE consulted with Federal Trade Commission (FTC) staff concerning the Daikin Petition for Waiver. The FTC staff did not have any objections to the issuance of a waiver to Daikin.

After careful consideration of all the material that was submitted by Daikin and consultation with the FTC staff, it is ordered that:

(1) The “Petition for Waiver” submitted by Daikin U.S. Corporation (Daikin) (Case No. CAC-011) is hereby granted as set forth in the paragraphs below.

(2) Daikin shall not be required to test or rate its commercial Variable Refrigerant Volume (VRV) products listed below on the basis of the currently applicable test procedures (contained in ARI Standard 340/360-2004 (incorporated by reference in 10 CFR 431.95(b)(2))), but shall be required to test and rate such products according to the alternate test procedure as set forth in paragraph (3).

Outdoor units:

1. RXYQ Series Heat Pumps with nominal capacities of 72 and 96 kBtu/ h, when combined with two or more of the below listed indoor units.

2. REYQ Series Heat Recovery units with nominal capacities of 72 and 96 kBtu/h, when combined with two or more of the below listed indoor units.

Indoor units:

1. FXAQ Series wall mounted indoor units with nominally rated capacities of 7, 9, 12, 18, and 24 kBtu/h.

2. FXLQ Series floor mounted indoor units with nominally rated capacities of 12, 18, and 24 kBtu/h.

3. FXNQ Series concealed floor mounted indoor units with nominally rated capacities of 12, 18, and 24 kBtu/h.

4. FXDQ Series low static ducted indoor units with nominally rated capacities of 7, 9, 12, 18, and 24 kBtu/h.

5. FXSQ Series medium static ducted indoor units with nominally rated capacities of 7, 9, 12, 24, 30, 36, and 48 kBtu/h.

6. FXMQ Series high static ducted indoor units with nominally rated capacities of 30, 36, and 48 kBtu/h.

7. FXZQ Series recessed cassette indoor units with nominally rated capacities of 7, 9, 12, 18, and 24 kBtu/h.

8. FXFQ Series recessed cassette indoor units with nominally rated capacities of 12, 18, 24, 30, and 36 kBtu/h.

9. FXHQ Series ceiling suspended indoor units with nominally rated capacities of 12, 24, and 36 kBtu/h.

(3) Alternate test procedure .

(A) Daikin shall be required to test the products listed in paragraph (2) above according to those test procedures for central air conditioners and heat pumps prescribed by DOE at 10 CFR part 431, except that for those commercial products covered by 10 CFR part 431, Daikin shall test a “tested combination” selected in accordance with the provisions of subparagraph (B) of this paragraph. For every other system combination using the same outdoor unit as the tested combination, Daikin shall make representations concerning the VRV multi-split products covered in this waiver according to the provisions of subparagraph (C) below.

(B) Tested combination. The term “tested combination” means a sample basic model comprised of units that are production units, or are representative of production units, of the basic model being tested. For the purposes of this waiver, the tested combination shall have the following features:

(i) The basic model of a variable refrigerant flow system used as a tested combination shall consist of an outdoor unit that is matched with between two and five indoor units.

(ii) The indoor units shall:

(a) Represent the highest sales volume type models;

(b) Together, have a capacity between 95 percent and 105 percent of the capacity of the outdoor unit;

(c) Not, individually, have a capacity greater than 50 percent of the capacity of the outdoor unit;

(d) Have a fan speed that is consistent with the manufacturer's specifications; and

(e) All have the same external static pressure.

(C) Representations. In making representations about the energy efficiency of its VRV multi-split products, for compliance, marketing, or other purposes, Daikin must fairly disclose the results of testing under the DOE test procedure, doing so in a manner consistent with the provisions outlined below:

(i) For VRV combinations tested in accordance with this alternate test procedure, Daikin must disclose these test results.

(ii) For VRV combinations that are not tested, Daikin must make a disclosure based on the testing results for the tested combination and which are consistent with either of the two following methods, except that only method (a) may be used, if available:

(a) Representation of non-tested combinations according to an alternative rating method (ARM) approved by DOE; or

(b) Representation of non-tested combinations at the same energy efficiency level as the tested combination with the same outdoor unit.

(4) This waiver shall remain in effect from the date of issuance of this Decision and Order until the effective date of a DOE final rule prescribing amended test procedures appropriate to the above model series manufactured by Daikin.

(5) This waiver is conditioned upon the presumed validity of statements, representations, and documentary materials provided by the petitioner. This waiver may be revoked or modified at any time upon a determination that the factual basis underlying the Petition for Waiver is incorrect, or DOE determines that the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics.

Title III of the Energy Policy and Conservation Act (“EPCA”) sets forth a variety of provisions concerning energy efficiency. Part A  1 of Title III provides for the “Energy Conservation Program for Consumer Products Other Than Automobiles.” (42 U.S.C. 6291-6309) Part A includes definitions, test procedures, labeling provisions, energy conservation standards, and the authority to require information and reports from manufacturers. Further, Part A authorizes the Secretary of Energy to prescribe test procedures that are reasonably designed to produce results which measure energy efficiency, energy use, or estimated operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) The test procedure for residential refrigerators and refrigerator-freezers is contained in 10 CFR part 430, subpart B, Appendix A1.

The regulations set forth in 10 CFR 430.27 contain provisions that enable a person to seek a waiver from the test procedure requirements for covered consumer products. A waiver will be granted by the Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) if it is determined that the basic model for which the Petition for Waiver was submitted contains one or more design characteristics that prevents testing of the basic model according to the prescribed test procedures, or if the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR part 430.27(a)(1). Petitioners must include in their petition any alternate test procedures known to evaluate the basic model in a manner representative of its energy consumption. 10 CFR 430.27(b)(1)(iii). The Assistant Secretary may grant the waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l). In general, waivers remain in effect until the effective date of a final rule which prescribes amended test procedures appropriate to the model series manufactured by the petitioner, thereby eliminating any need for the continuation of the waiver. 10 CFR part 430.27(m).

On January 8, 2008, Whirlpool filed a Petition for Waiver from the test procedure applicable to residential electric refrigerators and refrigerator-freezers set forth in 10 CFR part 430, subpart B, Appendix A1. 2 Whirlpool is designing new refrigerators and refrigerator-freezers that contain variable anti-sweat heater controls that detect a broad range of temperature and humidity conditions, and respond by activating adaptive heaters, as needed, to evaporate excess moisture. According to the petitioner, Whirlpool's technology is similar to that used by General Electric Company (GE) for its refrigerator-freezers which were the subject of a Petition for Waiver published April 17, 2007. 72 FR 19189. Whirlpool seeks a waiver from the existing DOE test procedure applicable to refrigerators and refrigerator-freezers under 10 CFR part 430 because it takes neither ambient humidity nor adaptive technology into account. Therefore, Whirlpool stated that the test procedure does not accurately measure the energy consumption of Whirlpool's new refrigerators and refrigerator-freezers that feature variable anti-sweat heater controls and adaptive heaters. Consequently, Whirlpool has submitted to DOE for approval an alternate test procedure that would allow it to correctly calculate the energy consumption of this new product line. Whirlpool's alternate test procedure is essentially the same as that prescribed for GE refrigerators and refrigerator-freezers that are equipped with the same type of technology. The alternate test procedure applicable to the GE products simulates the energy used by the adaptive heaters in a typical consumer household, as explained in the Decision and Order which DOE published in the Federal Register on February 27, 2008. 73 FR 10425. As DOE has stated in the past, it is in the public interest to have similar products tested and rated for energy consumption on a comparable basis.

When test procedures for refrigerators and refrigerator-freezers under 10 CFR part 430 were first developed, simple mechanical defrost timers were the norm. Today, Whirlpool's new line of refrigerators and refrigerator-freezers contains sensors that detect ambient humidity and interact with controls that vary the effective wattage of anti-sweat heaters to evaporate excess moisture. The existing DOE test procedure cannot be used to calculate the energy consumption of these features. The variable anti-sweat heater contribution to the refrigerator's energy consumption is entirely dependent on the ambient humidity of the test chamber, which the DOE test procedure does not specify. The energy consumption of the anti-sweat heaters will be modeled and added to the energy consumption measured with the anti-sweat heaters disabled. The anti-sweat contribution to the product's total energy consumption will be calculated by the same methodology that was set forth in the GE Petition. For units with an energy saver switch, the energy test results with and without the added heater contribution would be averaged to produce the final energy number for the product. For those units that do not include an energy saver switch, the final energy number would be equal to the test result of the heater-disabled test plus the added heater contribution. The objective of this approach is to simulate the average energy used by the adaptive anti-sweat heaters as activated in refrigerators and refrigerator-freezers of typical consumer households across the United States.

To determine the conditions in a typical consumer household, GE compiled historical data on the monthly average outdoor temperatures and humidities for the top 50 metropolitan areas of the U.S. over approximately the last 30 years. In light of the similarity of technologies at issue, Whirlpool is using the same data compiled by GE for its determination of the anti-sweat heater energy use. Like GE, Whirlpool includes in its test procedure a “system-loss factor” to calculate system losses attributed to operating anti-sweat heaters, controls, and related components.

Through today's notice, DOE announces receipt of Whirlpool's Petition for Waiver from certain parts of the test procedure applicable to Whirlpool's new line of refrigerators and refrigerator-freezers with variable anti-sweat heater controls and adaptive heaters. DOE is publishing Whirlpool's Petition for Waiver in its entirety pursuant to 10 CFR 430.27(b)(1)(iv). The Petition contains no confidential information. The Petition includes a suggested alternate test procedure and calculation methodology to determine the energy consumption of Whirlpool's specified refrigerators and refrigerator-freezers with adaptive anti-sweat heaters. DOE is interested in receiving comments from interested parties on all aspects of the Petition, including the suggested alternate test procedure and calculation methodology. Pursuant to 10 CFR 430.27(b)(1)(iv), any person submitting written comments to DOE must also send a copy of such comments to the petitioner, whose contact information is included in the ADDRESSES section above.

Submitted by:

Steven Church, Whirlpool Corporation, 5401 U.S. Highway North, Evansville, IN 47727. 812-426-4659.

Whirlpool Corporation, a leading manufacturer and marketer of household appliances, in accordance with 10 CFR 430.27, files this Petition for Waiver in order to request exemption from certain parts of the test procedure endorsed by the U.S. Department of Energy for determining refrigerator-freezer energy consumption. Granting this waiver will allow Whirlpool to test its refrigerator-freezers utilizing the procedure described within this Petition.

Whirlpool is upgrading its Bottom Mount refrigerator-freezer products in order to meet the newly revised requirements of the Energy Star program scheduled to be implemented in April 2008.

Whirlpool is seeking the Department's approval to use the proposed method so that it can be assured of properly calculating and labeling the energy consumption of its products. Such approval will also allow assurance that the new products will achieve the energy limits proposed under the Energy Star Program.

Recently, General Electric Corporation (“GE”) filed a Petition for Waiver to establish a new method to calculate the energy consumption of a refrigerator-freezer when such a product contains adaptive anti-condensation heaters. In order to meet the more stringent Energy Star standards, Whirlpool has developed its own adaptive anti-condensation system which utilizes a humidity sensor to modify the power used by the anti-condensation heaters. In support of GE's position, Whirlpool could have designed the system so that the anti-condensation heaters showed no impact during energy testing. However, like GE, Whirlpool is following the regulation's intent to more accurately represent the energy consumed by the product when used in the home. Accordingly, Whirlpool is filing this Petition for Waiver to modify the portions of the regulation that are inappropriate.

The Department's regulations provide that the Assistant Secretary will grant a Petition upon: “Determination that the basic model for which the waiver was requested contains a design characteristic which either prevents testing of the basic model according to the prescribed test procedures, or the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data.”  1

Whirlpool requests that the Assistant Secretary grant this Petition based on the second point. Because the current test procedure does not fully specify test room conditions, i.e. the ambient relative humidity is not controlled; the adaptive nature of the anti-condensation heaters may cause the energy consumption of the unit to be significantly overstated. To test the units assuming that they do not adapt will misrepresent the energy used by the appliance when installed in a consumer's home.

The test procedure for calculating energy consumption  2 specifies that the test chamber be maintained at 90 °F. Although not typical of conditions in most consumer's homes, this higher ambient simulates the heat load of a refrigerator in a 70 °F ambient with typical usage by the consumer.

I. Summary of Information About the Project/Document

The “2007 Interim Report of the U.S. EPA Global Change Research Program Assessment of the Impacts of Global Change on Regional U.S. Air Quality: A Preliminary Synthesis of Climate Change Impacts on O 3 ” is intended to provide air quality managers and scientists a summary and synthesis of the scientific results that have emerged from the EPA ORD Global Change Research Program (ORD GCRP) assessment of the impact of global change on U.S. regional air quality. The report discusses the studies that have focused on the sensitivity of U.S. air quality to meteorological changes associated with a warming climate in large regions within the continental U.S.

The EPA recognizes that climate-air quality interactions occur at multiple scales (both spatial and temporal), and that an understanding of these interactions demands contributions from several scientific disciplines. The EPA ORD GCRP developed a research and assessment program that combines the resources and expertise of the ORD labs and centers toward the goal of developing the necessary scientific underpinnings. The ultimate goal of the Program is to provide air quality managers with the scientific information and tools needed to evaluate the implications of global change and to enhance their ability to consider global change in their decisions. The “2007 Interim Report of the U.S. EPA Global Change Research Program Assessment of the Impacts of Global Change on Regional U.S. Air Quality: A Preliminary Synthesis of Climate Change Impacts on O 3 ” is a preliminary step in that direction.

This report provides an update of the progress that has been made in applying climate and atmospheric chemistry models to investigate potential future meteorological effects on air quality. It does not include changes in air pollutant emissions other than those that are explicitly linked to meteorological variables and incorporated within the models (e.g., biogenic VOC emissions). In addition, it provides a preliminary interpretation of what this improved scientific understanding means for air quality management. Future assessment reports will cover the combined impacts of changing climate and air pollutant emissions on air quality. The program also plans to develop additional reports that focus on additional pollutants, including PM and mercury.

NCEA worked collaboratively with the EPA Office of Air and Radiation (OAR), and ORD's National Risk Management Research Laboratory (NRMRL), National Exposure Research Laboratory (NERL) and National Center for Environmental Research (NCER) on this report.

Submit your comments, identified by Docket ID No. EPA-HQ-ORD-2007-0983, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.

• E-mail: ORD.Docket@epa.gov

• Fax: 202-566-1753

• Mail: Office of Environmental Information (OEI) Docket (Mail Code: 2822T), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. The phone number is 202-566-1752.

• Hand Delivery: The OEI Docket is located in the EPA Headquarters Docket Center, Room 3334 EPA West Building, 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 Public Reading Room is 202-566-1744. Such deliveries are only accepted during the docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

If you provide comments by mail or hand delivery, please submit three copies of the comments. For attachments, provide an index, number pages consecutively with the comments, and submit an unbound original and three copies.

Instructions: Direct your comments to Docket ID No. EPA-HQ-ORD-2007-0983. Please ensure that your comments are submitted within the specified comment period. Comments received after the closing date will be marked “late,” and may only be considered if time permits. It is EPA's policy to include all comments it receives in the public docket without change and to make the comments available online at http://www.regulations.gov, including any personal information provided, unless a comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: Documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other materials, such as copyrighted material, are publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the OEI Docket in the EPA Headquarters Docket Center.

EPA ICR Number 1698.07; EPA's WasteWise Program (Renewal); was approved 06/24/2008; OMB Number 2050-0139; expires 06/30/2011.

EPA ICR Number 1736.05; EPA's Natural Gas STAR Program (Renewal); was approved 07/01/2008; OMB Number 2060-0328; expires 07/31/2011.

EPA ICR Number 1800.05; Information Requirements for Locomotives and Locomotive Engines (Final Rule for Locomotive and Marine Engines); in 40 CFR part 1033, subparts C, D, E and G; was approved 07/03/2008; OMB Number 2060-0392; expires 07/31/2009.

EPA ICR Number 0559.10; Application for Reference and Equivalent Method Determination (Final Rule); in 40 CFR part 53; was approved 07/03/2008; OMB Number 2080-0005; expires 07/31/2011.

EPA ICR Number 0922.07; Data Call-ins for the Special Review and Registration Review Programs; a short term extension of the expiration date was granted by OMB on 06/30/2008; OMB Number 2070-0057; expires 09/30/2008.

EPA ICR Number 1911.02; Data Acquisition for Anticipated Residue and Percent of Crop Treated; a short term extension of the expiration date was granted by OMB on 06/30/2008; OMB Number 2070-0164; expires 09/30/2008.

EPA ICR Number 1504.05; Data Generation for Pesticide Reregistration; a short term extension of the expiration date was granted by OMB on 06/30/2008; OMB Number 2070-0107; expires 09/30/2008.

EPA ICR Number 2294.01; National Emission Standards for Hazardous Air Pollutants for Plating and Polishing Area Sources (Proposed Rule); in 40 CFR part 63, subpart WWWWWW; OMB filed comments on 07/01/2008.

EPA ICR Number 2298.01; NESHAP for Nine Metal Fabrication and Finishing Source Categories (Proposed Rule); in 40 CFR part 63, subpart XXXXXX; OMB filed comments on 07/01/2008.

EPA ICR Number 2307.01; NSPS for Portland Cement Plants (Proposed Rule); in 40 CFR part 60, subpart F; OMB filed comments on 07/03/2008.

EPA ICR Number 0940.21; Ambient Air Quality Surveillance (Proposed Rule for Lead); OMB filed comments on 07/03/2008.

On March 28, 2008, the FTC sought comment on the information collection requirements associated with the Funeral Rule, 16 CFR Part 453 (Control Number: 3084-0025). 2 No comments were received. Pursuant to the OMB regulations, 5 CFR Part 1320, that implement the PRA, 44 U.S.C. 3501-3521, the FTC is providing this second opportunity for public comment while seeking OMB approval to extend the existing paperwork clearance for the Rule. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before August 11, 2008.

The Funeral Rule ensures that consumers who are purchasing funeral goods and services have accurate information about the terms and conditions (especially prices) for such goods and services. The Rule requires that funeral providers disclose this information to consumers and maintain records to facilitate enforcement of the Rule.

The estimated burden associated with the collection of information required by the Rule is 20,300 hours for recordkeeping, 101,389 hours for disclosures, and 40,600 hours for training, for a total of 162,000 hours (rounded to the nearest thousand). This estimate is based on the number of funeral providers (approximately 20,300), 3 the number of funerals per year (approximately 2.4 million), 4 and the time needed to fulfill the information collection tasks required by the Rule.

Recordkeeping: The Rule requires that funeral providers retain copies of price lists and statements of funeral goods and services selected by consumers. Based on a maximum average burden of one hour per provider per year for this task, the total burden for the 20,300 providers is 20,300 hours. This estimate is lower than FTC staff's 2005 estimate of 21,500 hours due to a decrease in the number of funeral providers.

Disclosure: The Rule requires that funeral providers: (1) Maintain current price lists for funeral goods and services, (2) provide written documentation of the funeral goods and services selected by consumers making funeral arrangements, and (3) provide information about funeral prices in response to telephone inquiries.

1. Maintaining current price lists requires that funeral providers revise their price lists from time to time throughout the year to reflect price changes. Staff estimates, consistent with its current clearance, that this task requires a maximum average burden of two and one-half hours per provider per year for this task. Thus, the total burden for 20,300 providers is 50,750 hours.

2. Staff retains its prior estimate that 13% of funeral providers prepare written documentation of funeral goods and services selected by consumers specifically due to the Rule's mandate. The original rulemaking record indicated that 87% of funeral providers provided written documentation of funeral arrangements, even absent the Rule's requirements. 5

According to the rulemaking record, the 13% of funeral providers who did not provide written documentation prior to enactment of the Rule are typically the smallest funeral homes. The written documentation requirement can be satisfied through the use of a standard form (an example of which the FTC has provided to all funeral providers in its compliance guide). 6 Based on an estimate that these smaller funeral homes arrange, on average, approximately twenty funerals per year and that it would take each of them about three minutes to record prices for each consumer on the standard form, FTC staff estimates that the total burden associated with the written documentation requirement is one hour per provider, for a total of 2,639 hours [(20,300 funeral providers × 13%) × (20 statements per year × 3 minutes per statement)].

3. The Funeral Rule also requires funeral providers to answer telephone inquiries about the provider's offerings or prices. Information received in 2002 from the industry indicates that only about 12% of funeral purchasers make telephone inquiries, with each call lasting an estimated ten minutes. 7 Thus, assuming that the average purchaser who makes telephone inquiries places one call per funeral to determine prices, the estimated burden is 48,000 hours (2.4 million funerals per year × 12% × 10 minutes per inquiry). This burden likely will decline over time as consumers increasingly rely on the Internet for funeral price information.

In sum, the burden due to the Rule's disclosure requirements totals 101,389 hours (50,750 + 2,639 + 48,000).

Training: In addition to the recordkeeping and disclosure-related tasks noted above, funeral homes may also have training requirements specifically attributable to the Rule. While staff believes that annual training burdens associated with the Rule should be minimal because Rule compliance is generally included in continuing education requirements for state licensing and voluntary certification programs, staff estimates that, industry-wide, funeral homes should incur no more than 40,600 hours related to training specific to the Rule each year. This estimate is consistent with staff's assumption for the current clearance that an “average” funeral home consists of approximately five employees (full-time and part-time employment combined), but with no more than four of them having tasks specifically associated with the Funeral Rule. Staff retains its estimate that each of the four employees (three directors and a clerical employee) per firm would each require one-half hour, at most, per year, for such training. Thus, total estimated time for training is 40,600 hours (4 employees per firm × 1/2 hour × 20,300 providers).

Estimated annual cost burden: $3,524,000 in labor costs and $1,226,000 in non-labor costs.

Labor costs: Labor costs are derived by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below are averages.

Clerical personnel, at an estimated hourly rate of $13, can perform the recordkeeping tasks required under the Rule. Based on the estimated hour burden of 20,300 hours, the estimated labor cost burden for recordkeeping is $263,900.

The two and one-half hours required of each provider, on average, to update price lists should consist of approximately one and one-half hours of managerial or professional time, at an estimated $27.50 per hour, and one hour of clerical time, at $13 per hour, for a total of $54.25 per provider  8 [($27.50 per hour × 1.5 hours) + ($13.00 per hour × 1 hour)]. Thus, the estimated total labor cost burden for maintaining price lists is $1,101,275 ($54.25 per provider × 20,300 providers).

The incremental cost to the 13% of small funeral providers not previously providing written documentation of the goods and services selected by the consumer, as previously noted, is 2,639 hours. Assuming managerial or professional time for these tasks at approximately $27.50 per hour, the associated labor cost would be $72,572.50 (2,639 hours × $27.50 per hour).

As previously noted, staff estimates that 48,000 hours of managerial or professional time is required annually to respond to telephone inquiries about prices. The cost of 48,000 hours of managerial or professional time for responding to telephone inquiries about prices at $27.50 per hour, is $1,320,000 (48,000 hours × $27.50 per hour).

The cost of training licensed and non-licensed funeral home staff to comply with the Funeral Rule is two hours per funeral home, with four employees of varying ranks each spending one-half hour on training. Consistent with estimates in the current clearance, the Commission is assuming that three funeral directors, at hourly wages of $27.50, $20, and $15, respectively, as well as one clerical or administrative staff member, at $13 per hour, require such training, for a total burden of 40,600 hours (20,300 funeral homes × 2 hours total per establishment), and $766,325 [($27.50 + $20 + $15 + $13) × 1/2 hour per employee × 20,300 funeral homes].

The total labor cost of the three disclosure requirements imposed by the Funeral Rule is $2,493,847.50 ($1,101,275 + $72,572.50 + $1,320,000). The total labor cost for recordkeeping is $263,900. The total labor cost for disclosures, recordkeeping and training is $3,524,000 ($263,900 for recordkeeping + $766,325 for training + $2,493,847.50 for disclosures), rounded to the nearest thousand.

Capital or other non-labor costs: The Rule imposes minimal capital costs and no current start-up costs. The Rule first took effect in 1984 and the revised Rule took effect in 1994, so funeral providers should already have in place capital equipment to carry out tasks associated with Rule compliance. Moreover, most funeral homes already have access, for other business purposes, to the ordinary office equipment needed for compliance, so the Rule likely imposes minimal additional capital expense.

Compliance with the Rule, however, does entail some expense to funeral providers for printing and duplication of price lists. Assuming that two price lists per funeral/cremation are created by industry to adhere to the Rule, 4,800,000 copies per year are made for a total cost of $1,200,000 (2,400,000 funerals per year × 2 copies per funeral × $.25 per copy). In addition, the estimated 2,639 providers not already providing written documentation of funeral arrangements apart from the Rule will incur additional printing and copying costs. Assuming that those providers use the standard two-page form shown in the Compliance Guide, at twenty-five cents per page, at an average of twenty funerals per year, the added cost burden would be $26,390 (2,639 providers × 20 funerals per year × 2 pages per funeral × $.25). Thus, estimated non-labor costs are $1,226,000, rounded to the nearest thousand.

Under the Paperwork Reduction Act (“PRA”), 44 U.S.C. 3501-3520, federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3); 5 CFR 1320.3(c). As required by section 3506(c)(2)(A) of the PRA, the FTC is providing this opportunity for public comment before requesting that OMB extend the existing paperwork clearance for the information collection requirements contained in the Commission's Use of Prenotification Negative Option Plans Rule (“Negative Option Rule” or “Rule”), 16 CFR Part 425 (OMB Control Number 3084-0104).

The FTC invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. , permitting electronic submission of responses. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before September 8, 2008.

The Negative Option Rule governs the operation of prenotification subscription plans. Under these plans, sellers notify subscribers that they will ship merchandise, such as books, compact discs, or tapes, automatically and bill the subscribers for the merchandise if the subscribers do not expressly reject the merchandise beforehand within a prescribed time. The Rule protects consumers by: (a) requiring that promotional materials disclose the terms of membership clearly and conspicuously; and (b) establishing procedures for the administration of such “negative option” plans.

Estimated annual hours burden: 13,000 hours rounded to the nearest thousand.

Staff estimates that approximately 158 existing clubs each require annually about 75 hours to comply with the Rule's disclosure requirements, for a total of 11,850 hours (158 clubs × 75 hours). These clubs should be familiar with the Rule, which has been in effect since 1974, with the result that the burden of compliance has declined over time. Moreover, a substantial portion of the existing clubs likely would make these disclosures absent the Rule because they have helped foster long-term relationships with consumers.

Approximately 7 new clubs come into being each year. These clubs require approximately 120 hours to comply with the Rule, including start up-time. Thus, the cumulative PRA burden for new clubs is about 840 hours. Combined with the estimated burden for established clubs, the total burden is 12,690 hours or 13,000, rounded to the nearest thousand.

Estimated annual cost burden: $511,000, rounded to the nearest thousand (solely related to labor costs).

Based on recent data from the Bureau of Labor Statistics, the average compensation for advertising managers is approximately $44 per hour. Compensation for office and administrative support personnel is approximately $15 per hour. Assuming that managers perform the bulk of the work, while clerical personnel perform associated tasks ( e.g. , placing advertisements and responding to inquiries about offerings or prices), the total cost to the industry for the Rule's paperwork requirements would be approximately $510,510 [(65 hours managerial time x 158 existing clubs × $44 per hour) + (10 hours clerical time × 158 existing clubs × $15 per hour) + (110 hours managerial time × 7 new clubs × $44 per hour) + (10 hours clerical time × 7 new clubs × $15)].

Because the Rule has been in effect since 1974, the vast majority of the negative option clubs have no current start-up costs. For the few new clubs that enter the market each year, the costs associated with the Rule's disclosure requirements, beyond the additional labor costs discussed above, are de minimis. Negative option clubs already have access to the ordinary office equipment necessary to achieve compliance with the Rule. Similarly, the Rule imposes few, if any, printing and distribution costs. The required disclosures generally constitute only a small addition to the advertising for negative option plans. Because printing and distribution expenditures are incurred to market the product regardless of the Rule, adding the required disclosures results in marginal incremental expense.