Title: Pricing Pilot Program.

OMB Number: 0581-0190.

Expiration Date of Approval: 09-30-00.

Type of Request: Extension and revision of an emergency approved information collection.

Abstract: In accordance with Public Law 106-113 (113 Stat. 1536, Section 1001(a)(8)), amending the Agricultural Marketing Agreement Act of 1937 (7 U.S.C. 601-674), the Dairy Forward Pricing Pilot Program became effective on July 19, 2000. The pilot program permits a handler to pay producers or cooperative associations a negotiated price, rather than the minimum Federal order price, for milk that is under forward contract, provided that such milk does not exceed the handler's nonfluid use of milk for the month. Under the pilot program, a one-page disclosure statement must be submitted each time a dairy farmer enters into a forward contract. The disclosure statement explains to the dairy farmer that the program is voluntary and that by entering into the program with a handler, the dairy farmer will forfeit his or her right to the minimum prices provided under the order.

The information collection requirements in this request are essential to carry out the intent of the Acts. The information collected is the minimum required. The information collected is used only by authorized employees of the USDA, AMS. The AMS is the primary user of the compiled information.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average .25 hours per response.

Respondents: Dairy farmers.

Estimated Number of Respondents: 8,000.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 2,000 burden hours.

Comments are invited 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 the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Nicholas Memoli, Marketing Specialist, Order Formulation Branch, Rm. 2971-S, P.O. Box 96456, Washington, DC 20090-6456, (202) 690-1932, e-mail address Nicholas.Memoli@usda.gov. All comments received will be available for public inspection during regular business hours at the same address.

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

Section 203(c) of the Agricultural Marketing Act of 1946, 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 and will make copies of official standards available upon request. The United States Standards for Grades of Nonfat Dry Milk (Spray Process), the United States Standards for Instant Nonfat Dry Milk, and the United States Standards for Grades of Dry Buttermilk and Dry Buttermilk Product no longer appear in the Code of Federal Regulations but are maintained by USDA/AMS/Dairy Programs.

When these products are officially graded, the USDA regulations (7 CFR Part 58) governing the grading of manufactured or processed dairy products are used. These regulations require a charge for the grading service provided by USDA.

AMS is proposing to change the United States Standards for Grades of Nonfat Dry Milk (Spray Process), the United States Standards for Instant Nonfat Dry Milk, and the United States Standards for Grades of Dry Buttermilk and Dry Buttermilk Products using the procedures that appear in Part 36 of Title 7 of the Code of Federal Regulations (7 CFR Part 36).

AMS also administers a voluntary grading program for dry milk products under the Agricultural Marketing Act of 1946. Any interested person, commercial firm, or government agency can, for a fee, have AMS verify that the dry milk products covered by these standards meet the requirements of the applicable U.S. standards. Dry milk products covered by these standards can be packaged into containers bearing the USDA grade shield. The grading program is implemented by the regulation in 7 CFR Part 58.

The United States Standards for Grades of Nonfat Dry Milk (Spray Process) have been in effect since May 22, 1996, the United States Standards for Instant Nonfat Dry Milk have been in effect since August 7, 1996, and the United States Standards for Grades of Dry Buttermilk and Dry Buttermilk Product have been in effect since August 23, 1991. AMS initiated these proposed changes following a suggestion by the American Dairy Products Institute (ADPI), a trade association representing the dry milk industry. ADPI requested that the maximum number of bacteria allowed in nonfat dry milk, instant nonfat dry milk, dry buttermilk and dry buttermilk product be reduced. ADPI suggests that these changes would enhance the competitiveness of U.S. dry milk products in international markets since several other exporting countries have bacterial requirements more stringent than current U.S. standards. By reducing the bacterial requirements, the U.S. dry milk industry will be more competitive in international markets. Additionally, the standards would reflect improvements that have occurred in the quality of dry milk products produced in the United States.

Proposed by Dairy Programs, Agricultural Marketing Service:

USDA proposes to lower the maximum bacterial content requirement for the specified product grade standards, as suggested by the American Dairy Products Institute, as follows:

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

On March 17 and July 21, 2000, the Committee for Purchase From People Who Are Blind or Severely Disabled published notices (65 FR 14532 and 45358) of proposed additions to the Procurement List.

After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the commodities and services and impact of the additions on the current or most recent contractors, the Committee has determined that the commodities and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 46-48c and 41 CFR 51-2.4.

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the commodities and services to the Government.

2. The action will not have a severe economic impact on current contractors for the commodities and services.

3. The action will result in authorizing small entities to furnish the commodities and services to the Government.

4. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the commodities and services proposed for addition to the Procurement List.

Accordingly, the following commodities and services are hereby added to the Procurement List:

This notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the possible impact of the proposed action.

If the Committee approves the proposed additions, all entities of the Federal Government (except as otherwise indicated) will be required to procure the commodities listed below from a nonprofit agency employing persons who are blind or have other severe disabilities.

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the commodities to the Government.

2. The action will result in authorizing small entities to furnish the commodities to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c) in connection with the commodities proposed for addition to the Procurement List. Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.

The following commodities have been proposed for addition to Procurement List for production by the nonprofit agency listed:

Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR Part 351 (April 1999).

On August 19, 1993, the Department published in the Federal Register (58 FR 44162) the antidumping duty orders on CORE and CTL plate from Canada. On August 23, 1999, Metaux Russel Inc. (Russel) requested a review of its exports of CTL plate. On August 30, 1999, Clayson requested a review of its exports of CTL plate. On August 31, 1999, National requested a review of its exports of CORE. On August 31, 1999, Dofasco requested a review of its exports of CORE.

On August 31, 1999, Bethlehem Steel Corporation, U.S. Steel Group (a unit of USX Corporation), Inland Steel Industries, Inc., Gulf States Steel Inc. of Alabama, Sharon Steel Corporation, Geneva Steel, and Lukens Steel Company, petitioners, requested reviews of Stelco's, CCC's, Dofasco's, and Sorevco's exports of CORE.

On August 31, 1999, petitioners also requested a review of Stelco's exports of CTL plate.

On October 1, 1999, in accordance with section 751 of the Act, we published a notice of initiation of administrative reviews of Stelco, CCC, Dofasco, Sorevco, and National, for CORE, and Stelco, Clayson, and Russel for CTL plate covering the period August 1, 1998 through July 31, 1999 (64 FR 53318). In addition, on November 4, 1999, we published a notice of initiation of administrative review of MRM for CTL plate covering the period August 1, 1998 through July 31, 1999 (64 FR 60161).

Under section 751(a)(3)(A) of the Act, the Department may extend the deadline for completion of an administrative review if it determines that it is not practicable to complete the review within the statutory time limit of 365 days. On April 27, 2000, the Department published a notice of extension of the time limit for the preliminary results in these reviews to July 21, 2000. See Corrosion-Resistant Carbon Steel Flat Products and Cut-to-Length Carbon Steel Plate: Extension of Time Limits for Preliminary Results of Antidumping Administrative Review , 65 FR 24678.

On June 28, 2000, the Department published a second notice of extension of the time limit for the preliminary results in these reviews from July 21, 2000 to August 30, 2000. See Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate From Canada: Extension of Time Limits for Preliminary Results of Antidumping Administrative Review , 65 FR 39867.

The Department is conducting these reviews in accordance with section 751(a) of the Act.

The products covered by these administrative reviews constitute two separate “classes or kinds” of merchandise: (1) CORE, and (2) CTL plate.

The first class or kind, CORE, includes flat-rolled carbon steel products, of rectangular shape, either clad, plated, or coated with corrosion-resistant metals such as zinc, aluminum, or zinc-, aluminum-, nickel- or iron-based alloys, whether or not corrugated or painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating, in coils (whether or not in successively superimposed layers) and of a width of 0.5 inch or greater, or in straight lengths which, if of a thickness less than 4.75 millimeters, are of a width of 0.5 inch or greater and which measures at least 10 times the thickness or if of a thickness of 4.75 millimeters or more are of a width which exceeds 150 millimeters and measures at least twice the thickness, as currently classifiable in the Harmonized Tariff Schedule (HTS) under item numbers 7210.30.0030, 7210.30.0060, 7210.41.0000, 7210.49.0030, 7210.49.0090, 7210.61.0000, 7210.69.0000, 7210.70.6030, 7210.70.6060, 7210.70.6090, 7210.90.1000, 7210.90.6000, 7210.90.9000, 7212.20.0000, 7212.30.1030, 7212.30.1090, 7212.30.3000, 7212.30.5000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7212.60.0000, 7215.90.1000, 7215.90.3000, 7215.90.5000, 7217.20.1500, 7217.30.1530, 7217.30.1560, 7217.90.1000, 7217.90.5030, 7217.90.5060, and 7217.90.5090. Included in this review are corrosion-resistant flat-rolled products of non-rectangular cross-section where such cross-section is achieved subsequent to the rolling process ( i.e., products which have been “worked after rolling”)—for example, products which have been beveled or rounded at the edges. Excluded from this review are flat-rolled steel products either plated or coated with tin, lead, chromium, chromium oxides, both tin and lead (terne plate), or both chromium and chromium oxides (tin-free steel), whether or not painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating. Also excluded from this review are clad products in straight lengths of 0.1875 inch or more in composite thickness and of a width which exceeds 150 millimeters and measures at least twice the thickness. Also excluded from this review are certain clad stainless flat-rolled products, which are three-layered corrosion-resistant carbon steel flat-rolled products less than 4.75 millimeters in composite thickness that consist of a carbon steel flat-rolled product clad on both sides with stainless steel in a 20%-60%-20% ratio.

The second class or kind, CTL plate, includes hot-rolled carbon steel universal mill plates ( i.e., flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 millimeters but not exceeding 1,250 millimeters and of a thickness of not less than 4 millimeters, not in coils and without patterns in relief), of rectangular shape, neither clad, plated nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances; and certain hot-rolled carbon steel flat-rolled products in straight lengths, of rectangular shape, hot rolled, neither clad, plated, nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances, 4.75 millimeters or more in thickness and of a width which exceeds 150 millimeters and measures at least twice the thickness, as currently classifiable in the HTS under item numbers 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000, 7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, and 7212.50.0000. Included in this review are flat-rolled products of non-rectangular cross-section where such cross-section is achieved subsequent to the rolling process ( i.e., products which have been “worked after rolling”)—for example, products which have been beveled or rounded at the edges. Excluded from this review is grade X-70 plate. Also excluded is cut-to-length carbon steel plate meeting the following criteria: (1) 100% dry steel plates, virgin steel, no scrap content (free of Cobalt-60 and other radioactive nuclides); (2) .290 inches maximum thickness, plus 0.0, minus .030 inches; (3) 48.00 inch wide, plus .05, minus 0.0 inches; (4) 10 foot lengths, plus 0.5, minus 0.0 inches; (5) flatness, plus/minus 0.5 inch over 10 feet; (6) AISI 1006; (7) tension leveled; (8) pickled and oiled; and (9) carbon content, 0.03 to 0.08 (maximum).

With respect to both classes or kinds, the HTS item numbers are provided for convenience and Customs purposes. The written description remains dispositive of the scope of these reviews.

As provided in section 782(i) of the Act, we verified sales and cost information provided by MRM, CCC, and Clayson using standard verification procedures, including on-site inspections of the manufacturers' facilities and the examination of relevant sales and financial records. Where appropriate, the Department made adjustments to the data provided in its model match and margin calculation programs for these preliminary results based on information obtained during verification. Our verification results are outlined in public versions of the verification reports on file with the Central Records Unit, in room B-099 of the Herbert C. Hoover Building.

In accordance with section 771(16) of the Act, we considered all products produced by the respondents that are covered by the description in the Scope of Reviews section above and sold in the home market during the period of review (POR) to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Where there were no sales of identical merchandise in the home market to compare to U.S. sales, we compared U.S. sales to the most similar foreign like product on the basis of the characteristics listed in Appendix V of the Department's November 2, 1999 antidumping questionnaires.

To determine whether sales of subject merchandise to the United States were made at less than NV, we compared the EP or the CEP to NV, as described in the “United States Price” and “Normal Value” sections of this notice. In accordance with section 777A(d)(2) of the Act, we calculated monthly weighted-average prices for NV and compared these to individual U.S. transaction prices.

Pursuant to 19 CFR 213, National withdrew its request for review for its exports of CORE, and requested that the Department rescind the review in part. Respondents CCC, Dofasco, and Sorevco objected to National's request for the rescission of its review since the request was not made in a timely fashion, pursuant to 19 CFR 351.213(d)(1) of the Department's regulations. We determined that, in accordance with 19 CFR 351.213(d)(1) of the Department's regulations, the Secretary may extend the time limit to request a recission of review if the Secretary decides it is reasonable to do so. We found that it was reasonable to extend the time limit in this case as National's withdrawal of its request for review was submitted before the majority of National's questionnaire response was filed. Therefore, we rescinded the review with respect to National. See Memorandum for Edward Yang from Mike Strollo through Maureen Flannery: Request for Rescission of Review: National Steel Corporation (National), dated March 2, 2000.

In addition, pursuant to 19 CFR 351.213(d)(1), petitioners withdrew their request for review with respect to Stelco's exports of both CORE and CTL plate on October 14, 1999. Section 351.213(d)(1) allows the Department to rescind a review if the party that requested the review withdraws the request within 90 days of the publication date of the initiation notice. The Department published the initiation notice on October 1, 1999 (64 FR 60161). Petitioners were the only party to request a review of Stelco's sales. We hereby rescind the review of Stelco with respect to its sales of CORE and CTL plate.

On August 31, 1999, MRM submitted a request, in accordance with section 351.222(b) of the Department's regulations, that the Department revoke the order covering CTL plate from Canada with respect to its sales of this merchandise.

In accordance with section 351.222(b)(2)(iii) of the regulations, this request was accompanied by a certification from MRM that it had not sold the subject merchandise at less than NV for a period of three consecutive reviews, which included this review period, and would not do so in the future. The Department conducted verification of MRM's responses for this period of review.

We have preliminarily decided not to revoke the antidumping order with respect to MRM. On May 28, 1998, the Department initiated an anti-circumvention investigation of MRM based upon information that MRM was circumventing the antidumping duty order on CTL plate by adding small amounts of boron to plate products covered by the order and importing such merchandise as alloy steel products. Cut-To-Length Carbon Steel Plate From Canada; Initiation of Anticircumvention Inquiry on Antidumping Duty Order, 63 FR 29179 (May 28, 1998). We find that the issue of whether a company is engaged in circumventing an antidumping duty order is relevant to whether that company has satisfied the criteria for revocation under section 351.222 of the Department's regulations. In light of the information before the Department concerning MRM's alleged circumvention of the order, we find that MRM has not satisfied the requirements for revocation given that the issue of MRM's alleged circumvention of the order remains unresolved. Although the Court of International Trade issued an injunction with respect to the Department's anti-circumvention proceeding in Co-Steel Lasco and Gerdau MRM Steel v. United States, Ct. No. 98-08-02684, on August 11, 2000 the Court of Appeals for the Federal Circuit summarily reversed that injunction. Co-Steel Lasco, et al. v. United States, App. No. 99-1339 (Aug. 11, 2000).

Section 776(a)(2) of the Act provides that: “If an interested party or any other person—(A) withholds information that has been requested by the administering authority; (B) fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 782; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i), the administering authority shall, subject to section 782(d), use the facts otherwise available in reaching the applicable determination under this title.”

On November 2, 1999, we issued a questionnaire to Russel. Russel did not respond to the Department's questionnaire. Accordingly, the use of facts available is required, under section 776(a)(2)(A) of the Act. Because Russel has provided no information whatsoever, sections 782(d) and (e) are inapplicable.

Furthermore, Section 776(b) of the Act provides that, if the Department finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may draw an inference that is adverse to the interests of that party in selecting from among the facts otherwise available. Section 776(b)(1) of the Act states that adverse inferences may be based on secondary information, including information drawn from the petition, the final determination, a previous administrative review, or other information placed on the record. Because Russel did not respond to our requests for information, we find that it has failed to cooperate by not acting to the best of its ability to comply with the Department's request for information, and we have drawn an adverse inference in selecting from the facts otherwise available, in accordance with section 776(b) of the Act.

Section 776(c) of the Act provides that the Department shall, to the extent practicable, corroborate secondary information using independent sources reasonably at its disposal. The Statement of Administrative Action, H.R. Doc. No. 103-316, 870 (1994) (SAA) provides that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value. See SAA, at 870.

In this case, the adverse facts available rate we are using is the highest dumping margin calculated in any segment of this proceeding, 68.70 percent. This margin was calculated for Stelco in the Amended Final Determinations of Sales at Less Than Fair Value and Antidumping Orders: Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate From Canada, 60 FR 49582 (Sept. 26, 1995), and has been the “all others rate” throughout the proceeding for CTL plate. Had Russel not requested a review of its exports, we would have instructed Customs to automatically liquidate Russel's entries at this all others rate. We can reasonably conclude that if Russel's margin would have been lower than the all others rate, it would have participated in this review. Accordingly, because Russel did not submit a response, we conclude that its calculated rate would have been equal to, if not greater than, the all others rate. Therefore, we conclude that this rate is probative of Russel's experience. Finally, there is no evidence on the record of circumstances indicating that the margin we are using as facts available in this review is not appropriate. In fact, because Russel did not respond to our questionnaire, we have no means of comparing the circumstances of its sales, if it had any, to those of Stelco in the investigation. Therefore, we have corroborated the selected rate “to the extent practicable” and the requirements of section 776(c) of the Act are satisfied.

For United States price, we used EP when the subject merchandise was sold directly or indirectly to the first unaffiliated purchaser in the United States prior to importation and CEP was not otherwise warranted by facts on the record. For certain sales, we used CEP because the sale was made in the United States.

The Department calculated EP for CCC based on packed, prepaid or delivered prices to customers in the United States. We made deductions from the starting price, net of discounts and price adjustments, for movement expenses (foreign and U.S. freight, and U.S. Customs duties), in accordance with section 772(c)(2) of the Act.

In accordance with the presumption of our regulations, we used date of invoice as date of sale for CCC's U.S. sales. See 19 CFR 351.401(i).

The Department calculated EP for Clayson based on packed, delivered prices to customers in the United States. We made deductions from the starting price for movement expenses (foreign and U.S. movement, brokerage and handling, and U.S. Customs duties), pursuant to section 772(c)(2) of the Act. As a result of our verification of Clayson's response, we made adjustments to the amounts reported for brokerage and handling, and for freight. See Memorandum to the File from Elfi Blum-Page, Sales and Cost Verification of Clayson Steel Co. (August 30, 2000).

In accordance with the presumption of our regulations, we used date of invoice as date of sale for Clayson's U.S. sales. See 19 CFR 351.401(i).

For purposes of these reviews, we treated Dofasco, Inc. and Sorevco, Inc. as one respondent, as we have done in prior segments of the proceeding. See, e.g., Certain Corrosion-Resistant Carbon Steel Flat Products from Canada: Final Determination of Sales at Less than Fair Value, 58 FR 37099 (1993), and Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate from Canada: Final Results of Antidumping Duty Administrative Reviews, and Determination Not to Revoke in Part, 65 FR 9243 (February 24, 2000) ( Canadian Steel 5th ). See Dofasco Analysis Memo for a complete analysis of the facts regarding the combination of these two respondents for this review.

Dofasco makes certain sales in the United States through its U.S. affiliate Dofasco U.S.A. (DUS). The sales involving DUS are either made through long-term contracts or are spot sales. Evidence on the record indicates that, for spot sales, while DUS is involved, the sales are made by Dofasco. We are treating these sales as EP sales. Based on evidence on the record, we conclude that the long-term contract sales are made by DUS and should be classified as CEP sales. See the proprietary Memorandum to the File from Mike Strollo through Maureen Flannery: Analysis for Dofasco, Inc. and Sorevco, Inc. (Dofasco) for the Preliminary Results of the Sixth Administrative Review of Corrosion-Resistant Carbon Steel Flat Products from Canada, August 30, 2000 ( Dofasco Analysis Memo ).

The Department calculated EP and CEP for Dofasco based on packed, prepaid or delivered prices to customers in the United States. We made deductions from the starting price, net of discounts and rebates, for movement expenses (foreign and U.S. movement, and post-sale warehousing) in accordance with section 772(c)(2) of the Act. In addition, for CEP sales, we deducted indirect selling expenses incurred in the United States and Canada associated with economic activities in the United States from the starting price. As in prior reviews, certain Dofasco sales have undergone minor further processing in the United States as a condition of sale to the customer. In order to determine the value of subject merchandise at the time of exportation of such merchandise to the United States, the Department has deducted the price charged to Dofasco for this minor further processing from gross unit price to determine U.S. price for both EP and CEP sales. See Canadian Steel 5th.

In this review, Dofasco's date of shipment in many instances preceded the date of invoice, and therefore we cannot use the date of invoice as the regulations prefer. Accordingly, as provided for in 19 CFR 351.401(i) of the regulations, we used the dates of sale described below. These sale dates reflect the dates on which the exporter or producer established the material terms of sale. We used the date of order acknowledgment as date of sale, as reported by Dofasco for all Dofasco sales in the U.S. market, except for sales made pursuant to long-term contracts. For Dofasco's sales made pursuant to long-term contracts, we used date of the contract as date of sale. In the rare instance of a rush order, we used the date of shipment as date of sale if a coil was shipped before the date of order acknowledgment. We also used shipment date for sales of secondary products for which there is no order acknowledgment. When there was a change in price, we used the date of Dofasco's order reacknowledgment as date of sale.

We used the date of order confirmation as the date of sale, as reported by Sorevco Inc. (Sorevco) for its sales in the home market.

The Department calculated EP for MRM based on packed, prepaid or delivered prices to customers in the United States. We made deductions from the starting price for movement expenses (foreign and U.S. movement, brokerage and handling, and U.S. Customs duties) pursuant to section 772(c)(2) of the Act.

In accordance with the presumption of our regulations, we used date of invoice as date of sale for MRM's U.S. sales. See 19 CFR 351.401(i).

The Department determines the viability of the home market and the comparison market by comparing the aggregate quantity of home market and U.S. sales. We determined that “the aggregate quantity * * * of the foreign like product sold by an exporter or producer in a country is 5 percent or more of the aggregate quantity * * * of its sales of the subject merchandise to the United States.” 19 CFR 351.404. We, therefore, have determined for each company that the home market is a viable market, pursuant to section 351.404. Moreover, there is no evidence on the record supporting a particular market situation in the exporting companies' country that would not permit a proper comparison of home market and U.S. prices. Therefore, in accordance with section 773(a)(1)(B)(i) of the Act, we have based NV on the price at which the foreign like product was first sold for consumption in the home market, in the usual commercial quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade as the EP or CEP.

In accordance with section 773(a)(4) of the Act, we used constructed value (CV) as the basis for NV when there were no above-cost contemporaneous sales of identical or similar merchandise in the comparison market. We calculated CV in accordance with section 773(e) of the Act. We included the cost of materials and fabrication, selling, general and administrative expenses (SG&A), and profit. In accordance with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit on the amounts incurred and realized by the respondents in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the foreign country. For selling expenses, we used the weighted-average home market selling expenses.

We used sales to affiliated customers only where we determined such sales were made at arms-length prices, i.e., at prices comparable to the prices at which the respondents sold identical merchandise to unaffiliated customers.

For both classes or kinds of merchandise under review and for all respondents, except Clayson, the Department disregarded sales below cost of production (COP) in the last completed review. See Canadian Steel 5th. We therefore have reasonable grounds to believe or suspect, pursuant to section 773(b)(2)(A)(ii) of the Act, that sales of the foreign like product under consideration for the determination of NV in this review may have been made at prices below COP. Therefore, we initiated COP investigations of sales in the home market for CCC, Dofasco, and MRM. For Clayson, petitioners filed an allegation of sales below cost on June 25, 2000, and we determined that there were reasonable grounds to believe or suspect that Clayson was selling CTL plate in Canada at prices below COP, in accordance with section 773(b)(2)(A)(i) of the Act. Accordingly, we initiated an investigation to determine whether Clayson's sales of CTL plate were made at prices below the COP during POR. See Memorandum to Edward Yang from Elfi Blum-Page through Maureen Flannery: Certain Cut-to-Length Carbon Steel Plate from Canada: Initiation of Sales-Below-Cost Inquiry, dated June 2, 2000.

We compared sales of the foreign like product in the home market with model-specific cost of production figures for the POR. In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of the costs of materials and fabrication employed in producing the foreign like product, plus SG&A expenses and all costs and expenses incidental to placing the foreign like product in packed condition and ready for shipment. In our sales-below-cost analysis, we used home market sales and COP information provided by each respondent in its questionnaire responses. We made adjustments where warranted based on our findings at verification.

We compared the weighted-average COPs to home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether these sales had been made at prices below the COP. In determining whether to disregard home market sales made at prices below the COP, we examined whether such sales were made (1) within an extended period of time in substantial quantities, and (2) at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade, in accordance with section 773(b)(1)(A) and (B) of the Act. On a product-specific basis, we compared the COP to home market prices, less any movement charges, discounts, and direct and indirect selling expenses.

Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent's sales of a given model were at prices less than COP, we did not disregard any below-cost sales of that model because the below-cost sales were not made in substantial quantities within an extended period of time. Where 20 percent or more of a respondent's sales of a given model were at prices less than COP, we disregarded the below-cost sales because they were made in substantial quantities within an extended period of time, in accordance with sections 773(b)(2)(B) and (C) of the Act. Because we compared prices to POR-average costs, we also determined that the below-cost prices did not permit the recovery of costs within a reasonable period of time. Based on this test, we disregarded below-cost sales for both classes or kinds of merchandise under review and for all respondents.

In accordance with section 773(a)(1)(B)(i) of the Act, where possible, we based NV on sales at the same level of trade (LOT) as the U.S. price. See the “Level of Trade Section” below.

For those product comparisons for which there were sales at prices above COP, we based NV on prices to home market customers. We calculated NV based on prices to unaffiliated home market customers. Where appropriate, we made adjustments to NV for differences in circumstances of sale (COS), in accordance with sections 773(a)(6) and (a)(8) of the Act and 19 CFR 351.410. For comparisons to EP, we made COS adjustments to NV by deducting home market direct selling expenses and adding U.S. direct selling expenses. We also made adjustments, where applicable, for home market indirect selling expenses to offset U.S. commissions paid on EP sales pursuant to 19 CFR 351.410(b).

For those models for which there was a sufficient quantity of sales at prices above COP, we based NV on home market prices to unaffiliated parties. Home market starting prices were based on the packed, ex-factory or delivered prices to unaffiliated purchasers in the home market, net of discounts and price adjustments, where applicable.

We made adjustments, where applicable, for packing and movement expenses in accordance with sections 773(a)(6)(A) and (a)(6)(B) of the Act. We also made adjustments for differences in the costs of manufacture for subject merchandise and matching foreign like products, attributable to their differing physical characteristics, pursuant to section 773(a)(6)(C)(ii) of the Act. In accordance with 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, for comparison to EP, we made COS adjustments to NV by deducting home market direct selling expenses (credit) and adding U.S. direct selling expenses (credit). When comparisons were made to EP sales on which commissions were paid, but where no commissions were paid on the matching foreign market sales, we made adjustments for CCC's home market indirect selling expenses to offset these U.S. commissions pursuant to 19 CFR 351.410(e).

In accordance with the presumption of our regulations, we used invoice date as sale date for all of CCC's home market sales. See 19 CFR 351.401(i).

For those models for which there was a sufficient quantity of sales at prices above COP, we based NV on home market prices to unaffiliated purchasers (Clayson made no home market sales to affiliated parties.) Home market prices were based on the packed, delivered prices to purchasers in the home market.

We made adjustments to the starting price, net of discounts, for movement expenses in accordance with sections 773(a)(6)(A) and (a)(6)(B) of the Act. In accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, for comparison to EP, we made COS adjustments to NV by deducting home market direct selling expenses (credit expense, commissions) and adding U.S. direct selling expenses (credit expense, commissions).

In accordance with the presumption of our regulations, we used date of invoice as date of sale for Clayson's home market sales. See 19 CFR 351.401(i).

As a result of our verification of Clayson's response, we recalculated freight expenses for home market and U.S. movement expenses. Also as a result of our verification, we made adjustments to Clayson's COP regarding scrap, G&A, and interest before performing our sales-below-cost test. For a full discussion, see Memorandum to the File: Analysis for the Preliminary Results of Review for Clayson, August 30, 2000.

For those models for which there was a sufficient quantity of sales at prices above COP, we based NV on home market prices to unaffiliated parties. We made adjustments, where applicable, for packing and movement expenses in accordance with sections 773(a)(6)(A) and (a)(6)(B) of the Act. We also made adjustments for differences in the costs of manufacture for subject merchandise and matching foreign like products, attributable to their differing physical characteristics, pursuant to section 773(a)(6)(C)(ii) of the Act. In accordance with 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, for comparison to EP, we made COS adjustments to NV by deducting home market direct selling expenses (credit, royalties, and warranty expenses) and adding U.S. direct selling expenses (credit, royalties, and warranty expenses). When comparisons were made to EP sales on which commissions were paid, but where no commissions were paid on the matching foreign market sales, we made adjustments for Dofasco's home market indirect selling expenses to offset these U.S. commissions pursuant to 19 CFR 351.410(e). In addition, we recalculated Dofasco's variable cost of manufacture by deducting Dofasco's claimed adjustment for byproduct profits on sales of industrial coke.

For comparison to CEP, we made COS adjustments to NV by deducting home market direct selling expenses (credit, royalties, and warranty expenses). When comparisons were made to CEP sales on which commissions were paid, but where no commissions were paid on the matching foreign market sales, we made adjustments for Dofasco's home market indirect selling expenses to offset these U.S. commissions pursuant to 19 CFR 351.410(e).

Based upon our preliminary analysis of Dofasco's sales process, we have determined that Dofasco's sales fall within four sales types. Depending on the type of sale, we used order acknowledgment date, contract date, or shipment date as the date of sale; refer to the “United States Price” section above. For a full discussion, see Memorandum to the File from Mike Strollo through Maureen Flannery: Analysis for Dofasco, Inc. and Sorevco, Inc. (Dofasco) for the Preliminary Results of the Sixth Administrative Review of Corrosion-Resistant Carbon Steel Flat Products from Canada, August 30, 2000 ( Dofasco Analysis Memo ).

For those models for which there was a sufficient quantity of sales at prices above COP, we based NV on home market prices to unaffiliated purchasers (MRM made no home market sales to affiliated parties.) Home market prices were based on the packed, ex-factory or delivered prices to purchasers in the home market.

We made adjustments to the starting price, net of rebates, for movement expenses in accordance with sections 773(a)(6)(A) and (a)(6)(B) of the Act. In accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, for comparison to EP, we made COS adjustments to NV by deducting home market direct selling expenses (credit expense) and adding U.S. direct selling expenses (credit expense). We added to NV U.S. selling commissions. Because comparisons were made to EP sales on which commissions were paid, but no commissions were paid on home market sales, we made adjustments for MRM's home market indirect selling expenses to offset these U.S. commissions pursuant to 19 CFR 351.410(e).

In accordance with the presumption of our regulations, we used date of invoice as date of sale for MRM's home market sales. See 19 CFR 351.401(i).

In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same LOT as U.S. sales. The NV LOT is the level of the starting-price sale in the comparison market or, when NV is based on CV, the level of the sales from which we derive SG&A and profit. For EP, the U.S. LOT is also the level of the starting-price sale, which is usually from exporter to importer. For CEP, it is the level of the constructed sale from the exporter to the importer.

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

In the present review, only Dofasco claimed that sales were made at more than one LOT. As discussed below, to evaluate Dofasco's LOT claims, we examined information regarding the distribution systems in both the U.S. and Canadian markets, including the selling functions, classes of customer, and selling expenses for each respondent.

In both the home market and the United States, CCC reported one LOT. CCC reported two customer categories in the home market and two in the U.S. market, but CCC claimed that the selling functions it performed were the same in each market and did not vary according to customer. CCC also reported two channels of distribution in the home market and two in the United States. CCC did not claim a LOT adjustment.

We analyzed the selling functions performed for various customer categories and channels of distribution in each market. We found that CCC performed substantially similar selling functions regardless of the type of home market customer and, therefore, that one level of trade existed in the home market. We reached the same conclusion regarding the U.S. market.

Finally, we compared the selling functions performed at the home market LOT with those performed at the U.S. LOT and found them substantially similar. Thus, no LOT adjustment was appropriate. For a further discussion of the Department's LOT analysis with respect to CCC, see Memorandum to the File: Analysis Memorandum for the Preliminary Results of Review for CCC, August 30, 2000.

In both the home market and the United States, Clayson reported one LOT and one distribution system with one class of customer in the home market, original equipment manufacturers (OEMs), and one class of customer, OEMs, in the U.S. market. We compared the selling functions performed at the home market LOT with those performed at the U.S. LOT and found them substantially similar. Thus, no LOT adjustment was appropriate.

Dofasco reported three LOTs in the home market. Dofasco defined its LOT categories by customer category: service center, automotive, and construction and converters/manufacturers (construction). We examined the selling functions performed at each claimed level and found that there was a significant difference in selling functions offered to these three categories. We examined narrative descriptions of the various functions performed and the extent to which each function is performed in order to gauge the significance of each function.

Of the several reported selling functions, Dofasco performed only two of the same or similar selling functions at both the automotive and service center sales levels. Dofasco reported fourteen selling functions which were different between these two levels. Additionally, sales to automotive customers are sales to end users, while sales to service centers are sales to resellers. Thus, sales to service centers and automotive customers were made at different stages of marketing. Based upon this fact, we preliminarily conclude that sales to the automotive customers and service centers are made at different levels of trade.

Although both automotive and construction customers are OEMs, we note that both quantitatively and qualitatively, the selling functions offered to automotive customers involve significantly greater selling activities and thus represent a distinct stage of marketing. For example, of the 16 reported selling functions, Dofasco performed only seven of the same or similar selling functions for both automotive and construction customers. Dofasco's functions for these two customer categories differed with respect to nine other activities. Therefore, given these types of differences, we preliminarily conclude that automotive and construction constitute separate levels of trade.

There were numerous differences in selling functions between sales to construction and service center customers. Dofasco performed six reported selling functions for sales to service centers and only four selling functions for sales to construction customers. Of these selling functions, only one was performed for both service centers and construction customers. More importantly, sales to service center customers are sales to resellers, while sales to construction customers are sales to end users. Thus, sales to service centers and construction customers were made at different stages of marketing. Based upon this fact, we preliminarily conclude that sales to service centers and construction customers are made at different levels of trade.

Overall, we determine that the selling functions for the automotive, service center, and construction customer categories are substantially dissimilar from one another and that these sales are made at different stages of marketing. Therefore, we preliminarily determine that the automotive, service center, and construction customer categories should be treated as three LOTs in the comparison market. Dofasco reported the same three LOTs in the U.S. market: automotive, service center, and construction. We preliminarily determine that U.S. LOTs are identical to those of the comparison market.

For those Dofasco sales classified as CEP, which were some of the automotive customers, we reexamined the three U.S. LOTs after excluding those selling functions performed in the United States. We found that for these automotive customers, two selling functions were performed in the United States. Thus, after excluding selling functions performed in the United States, CEP sales to automotive customers were identical to EP sales to automotive customers and to home market sales to automotive customers except for these two functions. We find that these two functions do not account, quantitatively or qualitatively, for a significant portion of the sales functions provided to these customers. Therefore, we find that these CEP sales do not constitute a separate LOT from EP sales to automotive customers or home market sales to automotive customers.

There were only insignificant differences in selling functions at each LOT between the comparison market and the U.S. market. Therefore, we found that the three U.S. LOTs corresponded to the three comparison market LOTs. The Department did not find that there existed a pattern of consistent price differences between the three levels of trade. Therefore, we did not make LOT adjustments when comparing sales at different LOTs. For a further discussion of the Department's LOT analysis with respect to Dofasco, see Dofasco Analysis Memo.

In both the home market and the United States, MRM reported one LOT and one distribution system with two classes of customers in the home market, distributors and OEMs, and one class of customer, OEMs, in the U.S. market. We analyzed the selling functions and activities performed for customers in each market. We found that MRM performed substantially similar selling functions and activities for both classes of home market customers and, therefore, that one level of trade existed in the home market. Finally, we compared the selling functions performed at the home market LOT with those performed at the U.S. LOT and found them substantially similar. Thus, no LOT adjustment was appropriate.

As a result of our reviews, we preliminarily determine the weighted-average dumping margins for the period August 1, 1998 through July 31, 1999 to be as follows:

The Department will disclose to the parties to the proceeding calculations performed in connection with these preliminary results of review within ten days after the date of public announcement, or, if there is no public announcement, within five days after the date of publication of these preliminary results of review.

Any interested party may request a hearing within 30 days of publication. Any hearing, if requested, will be held 37 days after the date of publication or the first business day thereafter. Case briefs from interested parties may be submitted not later than 30 days after publication. Rebuttal briefs, limited to issues raised in case briefs, may be filed not later than five days after the date of filing of case briefs. The Department will publish the final results of this administrative review, including its analysis of issues raised in the case and rebuttal briefs, not later than 120 days after the date of publication of this notice.

Upon issuance of the final results of review, the Department shall determine, and the U.S. Customs Service shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b), we calculated importer-specific ad valorem duty assessment rates for each class or kind of merchandise based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total customs value of the sales used to calculate those duties. This rate will be assessed uniformly on all entries of that particular importer for that class or kind of merchandise made during the POR.

Furthermore, upon publication of the final results of review, the following 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, as provided by section 751(a) of the Act: (1) The cash deposit rate for each reviewed company will be that established in the final results of review (except that no deposit will be required for firms with de minimis margins, i.e., margins less than 0.5 percent); (2) for exporters not covered in these reviews, but covered in the less than fair value (LTFV) investigations or a previous 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, a previous review, or the LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; (4) the cash deposit rate for all other manufacturers or exporters will continue to be the “all others” rates established in the LTFV investigations, which were 18.71 percent for corrosion-resistant steel products and 68.70 percent for CTL plate ( see Amended Final Determinations of Sales at Less Than Fair Value and Antidumping Orders: Certain Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate From Canada, 60 FR 49582 (Sep. 26, 1995)). These requirements, when imposed, shall remain in effect until publication of the final results of the next administrative reviews.

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 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.

These administrative reviews and notices are published in accordance with sections 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 777(i)(1) of the Act (19 U.S.C 1677f(i)(1)).

Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (“the Act”), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (“URAA”). In addition, unless otherwise indicated, all citations to the Department's regulations are to the regulations codified at 19 CFR Part 351 (April 1, 1999).

The antidumping dumping duty order for elemental sulphur from Canada was revoked, pursuant to the sunset procedures established by statute, effective January 1, 2000. See Revocation of Antidumping Finding: Elemental Sulphur From Canada, 64 FR 40553 (July 27, 1999). However, we are conducting this review to cover sales of the subject merchandise made in the United States made by Husky and Petrosul during the 13-month period from December 1, 1998 until the effective date of the revocation.

On December 14, 1999, the Department published in the Federal Register a notice of “Opportunity to Request Administrative Review” of the antidumping duty order on elemental sulphur from Canada (64 FR 69693). In accordance with 19 CFR 351.213(b)(1), on December 30, 1999, the petitioner, Freeport, requested an administrative review of the antidumping order covering the period December 1, 1998, through November 30, 1999, for Husky and Petrosul. On January 26, 2000, the Department published in the Federal Register a notice of initiation of administrative review of this order (65 FR 4228). On March 1, 2000, Husky requested that the Department extend the POR by one month to include sales from the end of the POR until the date that the revocation of the order was in effect. On April 11, 2000, the Department informed Husky and Petrosul that we were extending the POR for one month to include December 1999; thus, we would review all sales of the subject merchandise made by Husky and Petrosul in the United States between December 1, 1998 and the effective revocation date of the order.

On February 14, 2000, the Department sent Petrosul a questionnaire (Sections A, B, C, and D). On March 6, 2000, the Department received a letter from Petrosul, stating that Petrosul did not produce or export sulphur to the United States during the POR. The Department reviewed record evidence that indicated Petrosul exported subject merchandise or had knowledge that its sales of subject merchandise in Canada were ultimately destined for the United States. The details of this information are proprietary. See Analysis for the Preliminary Results in the Administrative Review of Elemental Sulphur from Canada for the period December 1, 1998 through December 31, 1999 (“ Preliminary Analysis Memo ”), dated September 1, 2000. On April 12, 2000, the Department sent a supplemental questionnaire to Petrosul with additional questions regarding Petrosul's statement that it did not produce or export sulphur to the United States during the POR. On May 3, 2000, Petrosul reported, via a telephone conversation, that it would not respond to the Department's April 12, 2000 supplemental questionnaire. See Memorandum for the file, dated May 3, 2000. Thus, Petrosul only submitted a letter to the Department stating that it did not produce or export sulphur to the United States during the POR and did not respond to either the Department's February 14, 2000, questionnaire or the April 12, 2000, supplemental questionnaire.

On February 14, 2000, the Department sent Husky a questionnaire (Sections A, B, C, and D). On March 20, 2000, Husky provided its Section A questionnaire response and on April 20, 2000, Husky provided its Sections B, C, and D response. On May 17, 2000, we issued a supplemental questionnaire to Husky. On June 1, 2000, Husky provided its supplemental questionnaire response.

The Department is conducting this administrative review in accordance with section 751 of the Act.

As provided in section 782(i) of the Act, from July 17, 2000 to July 20, 2000, we verified sales information provided by Husky, using standard verification procedures, including an examination of relevant sales and financial records, and selection of original documentation containing relevant information. Our verification results are outlined in the public version of the verification report and are on file in the Central Records Unit (“CRU”) located in room B-099 of the main Department of Commerce Building, 14th Street and Constitution Avenue, NW., Washington, DC.

Imports covered by this review are shipments of elemental sulphur from Canada. This merchandise is classifiable under Harmonized Tariff Schedule (“HTS”) subheadings 2503.10.00, 2503.90.00, and 2802.00.00. Although the HTS subheadings are provided for convenience and for U.S. Customs purposes, the Department's written description of the scope of this order remains dispositive.

In accordance with sections 776(a)(2)(A) and 776(a)(2)(B) of the Act, we preliminarily determine that the use of facts available is appropriate as the basis for Petrosul's dumping margin. Section 776(a)(2) of the Act provides that if an interested party: (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and (e) of the Act; (C) significantly impedes a determination under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination. In this case, section 776(a)(2)(A) of the Act applies because Petrosul withheld information. Petrosul failed to respond to sections A, B, C, and D of the Department's February 14, 2000 questionnaire and to the Department's April 12, 2000 supplemental questionnaire regarding whether it had entries during the POR. Furthermore, subsections 782(c)(1) and (e) of the Act cannot be applied in this case because Petrosul notified the Department that it would not participate in this review. Petrosul at no time notified the Department that it would be unable to submit requested information, nor did Petrosul provide any explanation or alternate form by which to submit the requested information. Section 782(e) of the Act is likewise not applicable because Petrosul provided no information for the Department to consider.

Because Petrosul failed to respond to the Department's questionnaires, we preliminarily determine that, in accordance with sections 776(a) and 782(e) of the Act, Petrosul has not cooperated to the best of its ability, and the use of total facts available is therefore appropriate. See, e.g., Certain Grain-Oriented Electrical Steel from Italy: Final Results of Antidumping Duty Administrative Review, 62 FR 2655 (January 17, 1997).

Section 776(b) of the Act provides that adverse inferences may be used with respect to a party that has failed to cooperate by not acting to the best of its ability to comply with requests for information. See Statement of Administrative Action (“SAA”) accompanying the URAA, H.R. Rep. No. 103-316, at 870. Petrosul's failure to participate in this review, especially in light of evidence that it in fact sold subject merchandise into the United States, demonstrates that it has failed to act to the best of its ability and, therefore, an adverse inference is warranted. See, e.g., Extruded Rubber Thread from Malaysia; Final Results of Antidumping Duty Administrative Review, 63 FR 12752 (March 16, 1998). Petrosul has demonstrated that it has the ability to provide sales information for administrative reviews in the past and it provided the Department with no plausible explanation of why it would not participate this time. See Elemental Sulphur from Canada; Preliminary Results of Antidumping Duty Administrative Reviews, 61 FR 45937, 45938. Thus, based on proprietary record evidence, see, e.g., the Preliminary Analysis Memo, we are making the adverse inference that had Petrosul cooperated and responded to the Department's questionnaire, Petrosul would have acknowledged its sales of elemental sulphur that were exported by Petrosul to the United States or acknowledged that its sales within Canada were ultimately destined for the United States. However, we must also reach a determination as to what the dumping margin on these sales would have been.

Section 776(b) of the Act authorizes the Department to use as adverse facts available secondary information, that is, information derived from the petition, the final determination, a previous administrative review, or any other information placed on the record. The SAA further provides that “[i]n employing adverse inferences, one factor the [Department] will consider is the extent to which a party may benefit from its own lack of cooperation.” SAA at 870. It is the Department's normal practice, in situations involving non-responding respondents such as Petrosul, to select as adverse facts available the highest margin from the current or any prior segment of the same proceeding. Therefore, as total adverse facts available, we have applied the rate of 40.38 percent, which was Husky's calculated final margin in the 1992/93 administrative review. See Final Elemental Sulphur from Canada; Final Results of Antidumping Duty Administrative Reviews 62 FR 37970, 37990 (July 15, 1997). The Department previously applied this rate as a total adverse facts available rate for Petrosul and Husky in the 1997/98 administrative review. See Elemental Sulphur from Canada: Final Results of Antidumping Duty Administrative Review, 65 FR 11980 (March 7, 2000).

Section 776(c) of the Act provides that the Department shall, to the extent practicable, corroborate secondary information by reviewing independent sources reasonably at its disposal. The SAA provides that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value, that is, that it is both reliable and relevant. See SAA at 870. The 40.38 percent rate we selected meets these corroboration criteria.

Regarding the reliability of the selected rate, because there are no independent sources for calculated dumping margins, unlike other types of information, such as input costs or selling expenses, the only source for margins is administrative determinations. Thus, in an administrative review, if the Department chooses as total adverse facts available a calculated dumping margin from a prior segment of the proceeding, it is not necessary to question the reliability of that earlier calculated margin. See, e.g., Elemental Sulphur from Canada: Preliminary Results of Antidumping Duty Administrative Review, 62 FR 971 (January 7, 1997); Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from France, et al.: Final Results of Administrative Review, 62 FR 2081, 2088 (January 15, 1997); and Final Results of Antidumping Duty Administrative Review: Brass Sheet and Strip from Germany, 64 FR 43342, 43343 (August 10, 1999). Thus, because we have selected a calculated margin from a prior administrative review, we do not need to question its reliability.

With respect to the relevance aspect of corroboration, however, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as adverse facts available, the Department will disregard the margin and determine an appropriate margin. See, e.g., Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22, 1996) (where the Department disregarded the highest margin for use as adverse facts available because the margin was based on another company's uncharacteristic business expense, resulting in an unusually high margin). Because we know that Petrosul has been supplied by Husky ( see Issues and Decision Memorandum for the Administrative Review of Elemental Sulphur from Canada—12/01/97 through 11/30/98, Comment 3, (see ia.ita.doc.gov/frn), which corresponds to Elemental Sulphur From Canada; Final Results of Antidumping Duty Administrative Review, 65 FR 11980 (March 7, 2000)), as facts available, we continue to operate under the presumption that Petrosul is being supplied by Husky in the absence of any other information. Thus, this rate is relevant for Petrosul because it was recently applied to Petrosul in the prior administrative review under the same circumstances, and we are not aware of any circumstances that would render this rate inappropriate.

To determine whether sales of subject merchandise to the United States were made at less than fair value, we compared the EP to the NV. In accordance with section 777A(d)(2), we calculated monthly weighted-average prices for NV and compared these to individual EP transactions.

We compared the aggregate volume of Husky's home market sales of the foreign like product and U.S. sales of the subject merchandise to determine whether the volume of the foreign like product Husky sold in Canada was sufficient, pursuant to section 773(a)(1)(C) of the Act, to form a basis for NV. Because Husky's volume of home market sales of the foreign like product was greater than five percent of its U.S. sales of subject merchandise, in accordance with section 773(a)(1)(B)(i) of the Act, we have based the determination of NV upon Husky's home market sales of the foreign like product. Moreover, there is no evidence on the record indicating a particular market situation in the exporting country that would not permit a proper comparison of home market and U.S. prices. See section 773(a)(1)(C)(iii) of the Act. Thus, we based NV on the prices at which the foreign like product was first sold for consumption in Canada, in the usual commercial quantities, in the ordinary course of trade, and at the same LOT as the EP sales.

In accordance with section 771(16) of the Act, we considered all products covered by the Scope of the Review section above, which were produced and sold by the Husky in the home market during the extended POR, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. For all of Husky's U.S. sales, there were identical sales in the home market on which to base comparisons.

For calculation of the price to the United States, we used EP, in accordance with section 772(a) of the Act, because Husky's subject merchandise was sold to the first unaffiliated purchaser located in either Canada (shipped directly from the producer to the U.S. purchaser) or the United States prior to importation, and use of the CEP methodology was not otherwise warranted. We calculated EP based on free on board (f.o.b.) plant or delivered prices to unrelated customers. We made deductions to the starting price for movement expenses (inland freight, brokerage and handling, and tank car leasing expenses) pursuant to section 772(c)(2) of the Act. For a further explanation of how we calculated EP, see Preliminary Analysis Memo. We have used Husky's invoice date as the date of sale, in accordance with 19 CFR 351.401(i), except for shipments made prior to the invoice. Husky often invoices its customers after shipment and, therefore, in accordance with the Department's practice, we have used the shipment date as the date of sale in those instances.

After testing home market viability and whether home market sales were at below-cost prices, we calculated NV as noted in the “Price-to-Price Comparisons” and “Price-to-CV Comparison” sections of this notice.

Because the Department determined that Husky made sales in the home market at prices below the cost of producing the subject merchandise in its most recently completed administrative review ( see, e.g., Elemental Sulphur From Canada; Final Results of Antidumping Duty Administrative Review, 65 FR 11980 (March 7, 2000)), the Department determined that there are reasonable grounds to believe or suspect that Husky made sales in the home market at prices below the cost of producing the merchandise in this review. See section 773(b)(2)(A)(ii) of the Act. As a result, the Department initiated a cost of production inquiry in this case on February 14, 2000, to determine whether Husky made home market sales during the POR at prices below their respective COPs within the meaning of section 773(b) of the Act.

We conducted the COP analysis described below.

In accordance with section 773(b)(3) of the Act, we calculated COP based on the sum of Husky's cost of materials and fabrication for the foreign like product, plus amounts for home market selling, general and administrative expenses (“SG&A”), interest expenses, and packing costs. We used home market sales and COP information provided by Husky in its questionnaire responses, with no cost adjustments.

We compared the POR-long weighted-average COP for Husky, adjusted where appropriate (see above), to its home market sales of the foreign like product as required under section 773(b) of the Act. In determining whether to disregard home market sales made at prices less than the COP, we examined whether: (1) within an extended period of time, such sales were made in substantial quantities; and (2) such sales were made at prices which permitted the recovery of all costs within a reasonable period of time.

Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent's sales of a given product within an extended period of time are at prices less than the COP, we do not disregard any below-cost sales of that product because the below-cost sales are not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product during the extended period are at prices less than the COP, we determine such sales to have been made in “substantial quantities.” See section 773(b)(2)(C)(i) of the Act. The extended period of time for this analysis is the POR. See section 773(b)(2)(B) of the Act. Because each individual price was compared against the POR-long weighted average COP, any sales that were below cost were also at prices which did not permit cost recovery within a reasonable period of time. See section 773(b)(2)(D). We compared the COP for liquid sulphur to the reported home market prices less any applicable movement charges. Based on this test, we did not exclude any sales from our analysis because the volume of these sales represented less than 20 percent of the volume of sales under consideration for the determination of NV.

In accordance with section 773(e)(1) of the Act, we calculated Husky's CV based on the sum of Husky's cost of materials, fabrication, SG&A, interest expenses and profit. We calculated the COPs included in the calculation of CV as noted above in the “Calculation of COP” section of this notice. In accordance with section 773(e)(2)(A) of the Act, we based SG&A and profit on the amounts incurred and realized by Husky in connection with the production and sale of the foreign like product in the ordinary course of trade, for consumption in Canada.

We based NV on the home market prices to unaffiliated purchasers (Husky made no sales to affiliated parties). Home market prices were based on ex-factory or delivered prices. We made adjustments, where applicable, for movement expenses in accordance with section 773(a)(6)(B) of the Act. We also made adjustments for differences in circumstances of sale (“COS”) in accordance with 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 by deducting home market direct selling expenses (credit) and adding U.S. direct selling expenses (credit).

In accordance with section 773(a)(4) of the Act, we base NV on CV if we are unable to find suitable home market sales of the foreign like product. Where applicable, we would make adjustments to CV in accordance with section 773(a)(8) of the Act. For comparisons to EP, we made COS adjustments by deducting home market direct selling expenses and adding U.S. direct selling expenses. We did not use CV for Husky for these preliminary results of review.

In accordance with section 773(a)(1)(B) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (“LOT”) as the EP or CEP transaction. The NV LOT is that of the starting-price sales in the comparison market or, when NV is based on constructed value (“CV”), that of the sales from which we derive selling, general and administrative (“SG&A”) expenses and profit. For EP, the LOT is also the level of the starting-price sale, which is usually from the exporter to the importer. For CEP, it is the level of the constructed sale from the exporter to the affiliated importer.

To determine whether NV sales are at a different LOT than EP or CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales (which we note is not the case for Husky), if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the differences in the levels between NV and CEP sales affect price comparability, we adjust NV under section 773(A)(7)(B) of the Act (the CEP offset provision). See Notice of Final Determination of Sales at Less Than Fair Value: Certain Carbon Steel Plate from South Africa, 62 FR 61731 (November 19, 1997).

In the present review, Husky did not request a LOT adjustment or a CEP offset. To ensure that no such adjustment was necessary, in accordance with the principles discussed above, we examined information regarding the distribution systems in both the United States and Canadian markets, including the selling functions, classes of customer, and selling expenses.

In the home market, Husky reported that it sold through two sales channels: (1) to end-users; and (2) to resellers. See Husky's March 20, 2000, Section A questionnaire response, at A-9. The selling functions associated with the sales to end-users are credit services. The selling functions associated with the sales to resellers are credit services, and, if requested, freight and delivery arrangements. Because these selling functions are similar for both sales channels, we preliminarily determine that there is one LOT in the home market.

In the U.S. market, Husky reported two sales channels: (1) to end-users; and (2) to resellers. See Husky's March 20, 2000, Section A questionnaire response, at A-9. We examined the selling functions performed for each of the two U.S. sales channels. Both sales channels involved freight and delivery arrangements and credit services. Based on the above information, we preliminarily determine that there is one LOT in the United States.

Based on our analysis of the selling functions performed for sales in the home market and EP sales in the U.S. market, we preliminarily determine that there is not a significant difference in the selling functions performed in the U.S. and home markets and that these sales are made at the same LOT. Therefore, a LOT adjustment is not appropriate.

As a result of our review, we preliminarily determine that the following weighted-average dumping margin exists for the period December 1, 1998 through December 31, 1999:

The Department will disclose calculations performed within five days of the date of publication of this notice to the parties of this proceeding in accordance with 19 CFR 351.224(b). 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 37 days after the date of publication, or the first working day thereafter. Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of review. Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments, may be filed no later than 35 days after the date of publication. Further, we would appreciate it if parties submitting written comments also provide the Department with an additional copy of those comments on diskette. 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.

Upon issuance of the final results of this review, the Department shall determine, and the U.S. Customs Service shall assess, antidumping duties on all appropriate entries. In the event these preliminary results are made final, we will assess antidumping duties on all Petrosul entries at the same rate as the dumping margin ( i.e. , 40.38 percent) since the margin is not a current calculated rate for the respondent, but a rate based upon total facts available pursuant to section 776(a) of the Act. Also, if these preliminary results are made final, we will assess importer-specific antidumping duties on all appropriate Husky entries. Upon completion of this review, the Department will issue appraisement instructions directly to the Customs Service.

Because the antidumping duty order on elemental sulphur from Canada has been revoked, effective January 1, 2000, no cash deposits are required for entries of elemental sulphur from Canada for entries on or after January 1, 2000. See Revocation of Antidumping Finding: Elemental Sulphur From Canada , 64 FR 40553 (July 27, 1999).

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 determination is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

On August 17, 1993, the Department published in the Federal Register the countervailing duty order on certain cut-to-length carbon steel plate from Germany. See Countervailing Duty Orders and Amendment to Final Affirmative Countervailing Duty Determinations: Certain Steel Products From Germany (58 FR 43765). On August 11, 1998, the Department published a notice of “Opportunity to Request Administrative Review” (63 FR 42821) of this countervailing duty order for the period covering calendar year 1997. We received a timely request for a review and a request that this review be deferred for a year under section 351.213(c) of the Department's regulations. On October 29, 1998, the Department deferred that administrative review for one year (63 FR 58009). On August 11, 1999, the Department published a notice of “Opportunity to Request Administrative Review” (64 FR 43649) of this countervailing duty order for the period calendar year 1998. We received a timely request for a review, and, on October 1, 1999, the Department published a notice of initiation of administrative review of the countervailing duty order on certain cut-to-length carbon steel plate from Germany, covering the period January 1, 1998, through December 31, 1998 (64 FR 53318).

In accordance with 19 CFR 351.213(b), these reviews cover only those producers or exporters of the subject merchandise for which reviews were specifically requested. Novosteel SA requested these reviews, however, it is only an exporter. Novosteel SA stated that all of the subject merchandise it exported is produced by Reiner Brach GmbH and Co. KG. Therefore, questionnaire responses were required from the producer. Accordingly, these reviews cover exporter Novosteel SA and producer Reiner Brach GmbH and Co. KG. We received timely allegations of additional subsidies, including allegations of upstream subsidies. We initiated examinations of three of these alleged subsidy programs and determined not to initiate examinations of the alleged upstream subsidy programs. See memorandum to Melissa G. Skinner, Director, Office of AD/CVD Enforcement VI, from Team, entitled 1997 and 1998 Administrative Reviews of the Countervailing Duty Order on Certain Cut-to-Length Carbon Steel Plate from Germany: Memorandum Regarding Affiliation, Cross-ownership, Upstream Subsidy Allegations, and Other Subsidy Allegations, dated August 23, 2000. (This memorandum is on file in public version form in the public file room of room B-099 of the main Commerce building.) These reviews cover 39 programs.

On April 11, 2000, we extended the period for completion of the preliminary results pursuant to section 751(a)(3) of the Tariff Act of 1930, as amended (the Act). See Certain Cut-to-Length Carbon Steel Plate From Germany: Extension of Time Limit for Preliminary Results of Countervailing Duty Administrative Reviews (65 FR 19740). Therefore, the deadline for these preliminary results was extended to no later than August 30, 2000. The deadline for the final results of these reviews is no later than 120 days from the date on which these preliminary results are published in the Federal Register .

Unless otherwise indicated, all citations to the statute are references to the provisions of the Act, as amended by the Uruguay Round Agreements Act (URAA) effective January 1, 1995. The Department is conducting these administrative reviews in accordance with section 751(a) of the Act. All citations to the Department's regulations reference 19 CFR Part 351, unless otherwise indicated.

The merchandise subject to these reviews includes hot-rolled carbon steel universal mill plates ( i.e., flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 millimeters but not exceeding 1,250 millimeters and of a thickness of not less than 4 millimeters, not in coils and without patterns in relief), of rectangular shape, neither clad, plated nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances; and certain hot-rolled carbon steel flat-rolled products in straight lengths, of rectangular shape, hot rolled, neither clad, plated, nor coated with metal, whether or not painted, varnished, or coated with plastics or other nonmetallic substances, 4.75 millimeters or more in thickness and of a width which exceeds 150 millimeters and measures at least twice the thickness, as currently classifiable in the HTSUS under item numbers (7208.40.3030), (7208.40.3060), (7208.51.0030), (7208.51.0045), (7208.51.0060), (7208.52.0000), (7208.53.0000), (7208.90.0000), (7210.70.3000), (7210.90.9000), (7211.13.0000), (7211.14.0030), (7211.14.0045), (7211.90.0000), (7212.40.1000), (7212.40.5000), (7212.50.0000). Included in these reviews are flat-rolled products of non-rectangular cross-section where such cross-section is achieved subsequent to the rolling process ( i.e., products which have been “worked after rolling”)—for example, products which have been beveled or rounded at the edges. Excluded from these reviews is grade X-70 plate. Also excluded from these reviews is certain carbon cut-to-length steel plate with a maximum thickness of 80 mm in steel grades BS 7191, 355 EM, and 355 EMZ, as amended by Sable Offshore Energy Project specification XB MOO Y 15 0001, types 1 and 2.

We examined the following programs and preliminarily determine, based on the questionnaire responses, that the producer and/or exporter of the subject merchandise did not apply for or receive benefits under these programs during the periods of review:

1. Capital Investment Grants.

2. Investment Premium Act.

3. Joint Scheme: Improvement of Regional Economic Structure—GA Investment. Grants and Other GA Subsidies.

4. Ruhr District Action Program.

5. Aid for Closure of Steel Operations.

6. Joint Program: Upswing East.

7. Freight Programs under the Special Subsidies for Companies in the Zonal Border Area.

8. Loan Guarantees under Treuhandanstalt Subsidies.

9. Long-term Loans from the Kreditanstalt fur Wiederaufbau (KfW).

10. Tax Programs under Special Subsidies for Companies in the Zonal Border Area.

11. Structural Improvement Aids.

12. ECSC Article 54 Loans.

13. ECSC Article 54 Interest Rebates.

14. ECSC Redeployment Aid Under Article 56(2)(b).

15. ECSC Article 54 Loans.

16. ECSC Article 54 Interest Rebates.

17. Loans with Reduced Interest Rates under the Steel Restructuring Plan.

18. Federal and State Government Loan Guarantees under the Steel Restructuring Plan.

19. Special Ruhr Plan.

20. Zukunftsinitiative Montaregionen (ZIM).

21. Kreditanstalt fur Wiederaufbau (KfW) Investment Loans for Eastern Germany.

22. Deutsche Ausglechsbank Investment Loans for Eastern Germany.

23. European Recovery Program Loans for Eastern Germany.

24. Loan Guarantee Program Loans for Eastern Germany.

25. Peine-Salzgitter Profit Transfer Agreement and Other Operation Loss Subsidies.

26. Elimination of Duisburg Harbor Tolls.

27. Export Credits at Preferential Rates.

28. Miscellaneous Tax Subsidies.

29. Loans from the Government of Nordrhein-Westphalen.

30. Tax Subsidies for Eastern Germany.

31. European Investment Bank Loans and Loan Guarantees.

32. New Community Instrument Loans.

33. European Regional Development Fund Aid.

34. Nordrhein-Westphalen's Air Pollution Control Program.

35. ECSC Article 54 Loan Guarantees.

36. ECSC Article 56 Conversion Loans.

As noted above, we have initiated examinations of three programs as a result of timely additional allegations of subsidy programs. These alleged subsidy programs are:

1. European Social Funds Grants

2. Assistance Measures for the Companies within the Steel Industry to Partially Compensate for Costs of the Social Plans

3. Social Aid for the Workers in the Coal and Steel Industries

Novosteel SA and Reiner Brach GmbH & Co. have stated in questionnaire responses that Novosteel SA and Reiner Brach GmbH and Co. KG have not received assistance by participating in any of the 36 above-listed programs, or by participating in any other government program. Nonetheless, we intend to issue questionnaires regarding the additional alleged subsidy programs in order to confirm non-use of these programs.

In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for the producer/exporter subject to these administrative reviews. For the periods calendar year 1997 and calendar year 1998, we preliminarily determine the net subsidy for Novosteel SA/Reiner Brach GmbH and Co. KG to be 0.00 percent ad valorem.

As provided for in the Act and 19 CFR 351.106(c)(1), any rate less than 0.5 percent ad valorem in an administrative review is de minimis. Accordingly, pursuant to 19 CFR 351.106(c)(2), if the final results of these reviews remain the same as these preliminary results, the Department intends to instruct Customs to liquidate, without regard to countervailing duties, shipments of the subject merchandise from Novosteel SA produced by Reiner Brach GmbH and Co. KG, exported on or after January 1, 1997 through December 31, 1997 and January 1, 1998 through December 31, 1998. Also, the cash deposits required for these companies will be zero.

Because the URAA replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Act. The requested review will normally cover only those companies specifically named. See 19 CFR 351.213(b). Pursuant to 19 CFR 351.212(c), for all companies for which a review was not requested, duties must be assessed at the cash deposit rate, and cash deposits must continue to be collected, at the rate previously ordered. As such, the countervailing duty cash deposit rate applicable to a company can no longer change, except pursuant to a request for a review of that company. See Federal-Mogul Corporation and The Torrington Company v. United States, 822 F.Supp. 782 (CIT 1993) and Floral Trade Council v. United States, 822 F.Supp. 766 (CIT 1993) (interpreting 19 CFR 353.22(e), the prior antidumping regulation on automatic assessment, which was identical to 19 CFR 355.22(g)). Therefore, the cash deposit rates for all companies except those covered by this review will be unchanged by the results of this review.

We will instruct Customs to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Accordingly, the cash deposit rates that will be applied to non-reviewed companies covered by this order will be the rate for that company established in the most recently completed administrative proceeding conducted under the URAA. If such a review has not been conducted, the rate established in the most recently completed administrative proceeding pursuant to the statutory provisions that were in effect prior to the URAA amendments is applicable. See Final Affirmative Countervailing Duty Determinations: Certain Steel Products from Germany, 58 FR 37315 (July 9, 1993). These rates shall apply to all non-reviewed companies until a review of a company assigned these rates is requested. In addition, for the periods calendar year 1997 and calendar year 1998, the assessment rates applicable to all non-reviewed companies covered by this order are the cash deposit rates in effect at the time of entry.

Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Written comments must be submitted separately for each of these two reviews. Case briefs must be submitted within 30 days after the date of publication of this notice, and rebuttal briefs, limited to arguments raised in case briefs, must be submitted no later than five days after the time limit for filing case briefs. Parties who submit argument in this proceeding are requested to submit with the argument: (1) a statement of the issue, and (2) a brief summary of the argument. Parties submitting case and/or rebuttal briefs are requested to provide the Department copies of the public version on a disk. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f). Also, pursuant to 19 CFR 351.310, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs, that is, thirty-seven days after the date of publication of these preliminary results.

Representatives of parties to the proceeding may request disclosure of proprietary information under administrative protective order no later than 10 days after the representative's client or employer becomes a party to the proceeding, but in no event later than the date the case briefs, under 19 CFR 351.309(c)(ii), are due. The Department will publish the final results of these administrative reviews, including the results of its analysis of issues raised in any case or rebuttal brief or at a hearing.

These administrative reviews and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act (19 U.S.C. 1675(a)(1) and 19 U.S.C. 1677f(i)(1).

Unless otherwise indicated, all citations to the statute are references to the provisions of section 751(a) of the Tariff Act of 1930, as amended by the Uruguay Round Agreements Act (“URAA”), effective January 1, 1995 (“the Act”). In addition, unless otherwise indicated, all citations to the Department's regulations are to 19 CFR part 351 (1999).

On May 4, 2000, the Department published the preliminary results of these administrative reviews ( see Pure Magnesium and Alloy Magnesium From Canada: Preliminary Results of Countervailing Duty Administrative Reviews, 65 FR 25910 (May 4, 2000)) (“ Preliminary Results ”). We received a case brief from the petitioner, the Magnesium Corporation of America, on June 5, 2000. Norsk Hydro Canada, Inc. (“NHCI”), the sole producer or exporter of the subject merchandise for which a review was requested, and the Government of Québec filed rebuttal briefs on June 12, 2000. The Department did not conduct a hearing for these reviews because none was requested.

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

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

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

The period of review for which we are measuring subsidies is from January 1, 1998 through December 31, 1998.

All issues raised in the case and rebuttal briefs by parties to these administrative reviews are addressed in the September 1, 2000, Issues and Decision Memorandum (“Decision Memorandum”) from Richard W. Moreland, Deputy Assistant Secretary, Import Administration, to Troy H. Cribb, Acting Assistant Secretary for Import Administration, which is hereby adopted by this notice. Attached to this notice as Appendix I is a list of the issues which parties have raised and to which we have responded in the Decision Memorandum. Parties can find a complete discussion of all issues raised in these reviews and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, Room B-099 of the Department. In addition, a complete version of the Decision Memorandum can be accessed directly on the Internet at http://www.ia.ita.doc.gov/frn/ under the heading “Canada.” The paper copy and electronic version of the Decision Memorandum are identical in content.

Based on our analysis of the record and comments received, we have made no changes to the preliminary net subsidy rate.

In accordance with 19 CFR 351.221(b)(4)(i), we calculated an individual subsidy rate for each producer/exporter subject to these reviews. We will instruct the U.S. Customs Service (”Customs”) to assess countervailing duties as indicated below on all appropriate entries. For the period January 1, 1998 through December 31, 1998, we determine the net subsidy rate for the reviewed company to be as follows:

The Department will also instruct Customs to collect cash deposits of estimated countervailing duties in the percentage detailed above on the f.o.b. invoice price on all shipments of the subject merchandise from NHCI entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of these reviews.

Because the URAA replaced the general rule in favor of a country-wide rate with a general rule in favor of individual rates for investigated and reviewed companies, the procedures for establishing countervailing duty rates, including those for non-reviewed companies, are now essentially the same as those in antidumping cases, except as provided for in section 777A(e)(2)(B) of the Act. The requested review will normally cover only those companies specifically named ( see 19 CFR 351.213(b)). Pursuant to 19 CFR 351.212(c), for all companies for which a review was not requested, duties must be assessed at the cash deposit rate, and cash deposits must continue to be collected at the rate previously ordered. As such, the countervailing duty cash deposit rate applicable to a company can no longer change, except pursuant to a request for a review of that company. See Federal-Mogul Corporation and The Torrington Company v. United States, 822 F. Supp. 782 (CIT 1993) and Floral Trade Council v. United States, 822 F. Supp. 766 (CIT 1993). Therefore, the cash deposit rates for all companies except NHCI will be unchanged by the results of these reviews.

Accordingly, we will instruct Customs to continue to collect cash deposits for non-reviewed companies at the most recent company-specific or country-wide rate applicable to the company. Except for Timminco Limited, which was excluded from the orders in the original investigations, these rates were established in the first administrative proceeding conducted under the URAA. See Final Results of the Second Countervailing Duty Administrative Reviews: Pure Magnesium and Alloy Magnesium from Canada, 62 FR 48607 (September 16, 1997).

In addition, for the period January 1, 1998 through December 31, 1998, the assessment rates applicable to all non-reviewed companies covered by these orders are the cash deposit rates in effect at the time of entry, except for Timminco Limited (which was excluded from the order in the original investigations).

This notice 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(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested.

Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

These administrative reviews and notice are in accordance with section 751(a)(1) of the Act.

Chapter 19 of the North American Free-Trade Agreement (“Agreement”) establishes a mechanism to replace domestic judicial review of final determinations in antidumping and countervailing duty cases involving imports from a NAFTA country with review by independent binational panels. When a Request for Panel Review is filed, a panel is established to act in place of national courts to review expeditiously the final determination to determine whether it conforms with the antidumping or countervailing duty law of the country that made the determination.

Under Article 1904 of the Agreement, which came into force on January 1, 1994, the Government of the United States, the Government of Canada and the Government of Mexico established Rules of Procedure for Article 1904 Binational Panel Reviews (“Rules”). These Rules were published in the Federal Register on February 23, 1994 (59 FR 8686).

A first Request for Panel Review was filed with the United States Section of the NAFTA Secretariat, pursuant to Article 1904 of the Agreement, on August 18, 2000, requesting panel review of the final determination described above.

The Rules provide that:

The Marine Mammal Protection Act of 1972 (MMPA, 16 U.S.C. 1361 et seq.) imposed, with certain exceptions, a moratorium on the taking of marine mammals. Taking means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine mammal. Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA direct the Secretary of Commerce (Secretary) to allow, upon request, the taking of small numbers of marine mammals incidental to specified regulations that, among other things, establish permissible methods of taking provided NMFS determines that the taking is having a negligible impact on affected marine mammals. If a negligible impact on marine mammals can be determined, the MMPA allows the Secretary to authorize the activity provided monitoring and reporting of the activity’s impact on marine mammals can be carried out. Procedural regulations outlining the requirements for the submission of requests for taking are contained in 50 CFR 216 Subpart I. Specific regulations governing authorized activities are contained in subsequent subparts to Subpart I. These regulations also require authorized activities to monitor and report interactions with marine mammals.

Information in a request for a Letter of Authorization (LOA) (to conduct activities under the regulations) varies by activity. It is used to determine if the applicant falls within the scope of the specific regulations, needs new regulations, or if an authorization for an Incidental Harassment Authorization (IHA) is warranted. Information required concerns the dates, location, methods and level of activity to determine if the potential taking is covered by the specific regulations and the statute.

Because the negligible impact determination had not been made previously under regulations, information in a request for an IHA needs to include both a description of the activity and an assessment of the impacts on marine mammals in the vicinity of the activity. In this case, the application for a harassment authorization needs to be as detailed as those submitted in a request for regulations that authorize marine mammals takings incidental to the activity.

Reporting takings incidental to the activity is required by the MMPA. Generally, an interim report is required approximately 90 days after completion of an activity or at the end of the authorization, whichever is earlier. If complex data analyses are required, a final report may be required. Ninety-day reports, annual reports, and final reports must include a description of the activity including time, location, and place; a summary of the monitoring program, an assessment of the effects of the activity on marine mammals including the estimated level of take by species, and any other additional requirements listed in either the LOA or IHA.

Written submissions are made responding to requirements in regulations.

OMB Number : 0648-0151.

Form Number : None.

Type of Review : Regular submission.

Affected public : Business and other for-profit organizations, not-for-profit institutions, federal and state governments.

Estimated Number of Respondents : 24-30/year.

Estimated Time Per Response : Varies from 3 hrs to 480 hrs depending upon type and complexity.

Estimated Total Annual Burden Hours : 4,565.

Estimated Total Annual Cost to Public : $1,200.

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

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

The names and position titles of the members of the NOAA PRB ( NOAA officials unless otherwise identified ) are set forth below:

The Audit and Records-Negotiation clause, 52.215-2; Contract Terms and Conditions Required to Implement Statutes or Executive Orders-Commercial Items clause, 52.212-5(d); and Audit and Records-Sealed Bidding clause, 52.214-26, implement the requirements of 10 U.S.C. 2313, 41 U.S.C. 254, and 10 U.S.C. 2306. The statutory requirements are that the Comptroller General and/or agency shall have access to, and the right to, examine certain books, documents and records of the contractor for a period of 3 years after final payment. The record retention periods required of the contractor in the clauses are for compliance with the aforementioned statutory requirements. The information must be retained so that audits necessary for contract surveillance, verification of contract pricing, and reimbursement of contractor costs can be performed.

Respondents: 19,142.

Responses Per Respondent: 20.

Total Responses: 382,840.

Hours Per Response: .167.

Total Burden Hours: 63,934.

Obtaining Copies of Proposals: Requester may obtain a copy of the proposal from the General Services Administration, FAR Secretariat (MVRS), 1800 F Street, NW, Room 4035, Washington, DC 20405, telephone (202) 208-7312. Please cite OMB Control No. 9000-0034, Examination of Records by Comptroller General and Contract Audit in all correspondence.

Title III of the Defense Production Act (DPA) of 1950 authorizes various forms of Government assistance to encourage expansion of production capacity and supply of industrial resources essential to national defense. The DPA Amendments of 1992 provide for the testing, qualification, and use of industrial resources manufactured or developed with assistance provided under Title III of the DPA.

FAR 34.1 and 52.234-1 require contractors, upon the direction of the contracting officer, to test Title III industrial resources for qualification, and provide the test results to the Defense Production Act Office. The FAR coverage also expresses Government policy to pay for such testing and provides definitions, procedures, and a contract clause to implement the policy. This information is used by the Defense Production Act Office, Title III Program, to determine whether the Title III industrial resource has been provided an impartial opportunity to qualify.

Respondents: 6.

Responses Per Respondent: 3.

Total Annual Responses: 18.

Hours Per Response: 100.

Total Burden Hours: 1,800.

Obtaining Copies of Proposals: Requester may obtain a copy of the proposal from the General Services Administration, FAR Secretariat (MVRS), Room 4035, 1800 F Street, NW, Washington, DC 20405, telephone (202) 208-7312. Please cite OMB Control No. 9000-0133, in all correspondence.

Allowable costs of assets are limited in the event of change in ownership of a contractor. Contractors are required to provide the Government adequate and timely notice of this event per the FAR clause at 52.215-40, Notification of Ownership Changes.

Respondents: 100.

Responses Per Respondent: 1.

Total Responses: 100.

Hours Per Response: 125.

Total Burden Hours: 125.

Obtaining Copies of Proposals: Requester may obtain a copy of the proposal from the General Services Administration, FAR Secretariat (MVRS), Room 4035, 1800 F Street, NW, Washington, DC 20405, telephone (202) 208-7312. Please cite OMB Control No. 9000-0115, Notification of Ownership Changes, in all correspondence.

The entire meeting is devoted to the discussion of classified information as defined in Section 552b(c)(1), Title 5 of the U.S. Code, and therefore will be closed to the public. The Board will receive briefings on and discuss several current critical intelligence issues and advise the Director, DIA, on related scientific and technical matters.

The entire meeting is devoted to the discussion of classified information as defined in Section 552b(c)(1), Title 5 of the U.S. Code, and therefore will be closed to the public. The Board will receive briefings on and discuss several current critical intelligence issues and advise the Director, DIA, on related scientific and technical matters.

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

The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.

Type of Review: New.

Title: Study to Assess the Quality of Vocational Education in the United States.

Frequency: One-time.

Affected Public: Businesses or other for-profit.

Reporting and Recordkeeping Hour Burden:

Responses: 3,000

Burden Hours: 1,500

Abstract: As part of the National Assessment of Vocational Education, the study to assess the quality of vocational education proposes to conduct a nationally representative survey of high school teachers. The 30-minute survey will examine the prevalence of promising instructional practices recommended in the 1998 Perkins Act. It will assess differences in practice between academic and vocational teachers and comprehensive and vocational high schools. Findings from the survey will be incorporated into a report on secondary school vocational education.

Requests for copies of the proposed information collection request may be accessed from http://edicsweb.ed.gov , or should be addressed to Vivian Reese, Department of Education, 400 Maryland Avenue, SW., Room 4050, Regional Office Building 3, Washington, DC 20202-4651. Requests may also be electronically mailed to the internet address OCIO_IMG_Issues@ed.gov or faxed to 202-708-9346.

Please specify the complete title of the information collection when making your request.

Comments regarding burden and/or the collection activity requirements should be directed to Jacqueline Montague at (202) 708-5359 or via her internet address Jackie_Montague@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

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

The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology.

Type of Review: New.

Title: OSFA Customer Satisfaction Survey Master Plan.

Frequency: As needed.

Affected Public: Not-for-profit institutions; Businesses or other for-profit; Individuals or household.

Reporting and Recordkeeping Hour Burden:

Responses: 15,000.

Burden Hours: 100,000.

Abstract: The Higher Education Amendments of 1998 established the Office of Student Financial Assistance (SFA) as the Government's first Performance-Based Organization (PBO). That legislation specifies that one purpose of the PBO is to improve program services and processes for students and other participants in the student financial assistance programs. This requirement establishes an ongoing need for SFA to be engaged in an interactive process of collecting information and using it to improve the delivery of student financial aid. As such, SFA is seeking OMB approval of a clearance process for customer satisfaction surveys and focus groups for years 2001-2003.

Requests for copies of the proposed information collection request may be accessed from http://edicsweb.ed.gov, or should be addressed to Vivian Reese, Department of Education, 400 Maryland Avenue, SW., Room 4050, Regional Office Building 3, Washington, DC 20202-4651. Requests may also be electronically mailed to the internet address OCIO_IMG_Issues@ed.gov or faxed to 202-708-9346.

Please specify the complete title of the information collection when making your request.

Comments regarding burden and/or the collection activity requirements should be directed to Joseph Schubart at (202) 708-9266 or via his internet address Joe_Schubart@ed.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

The Commission was established under Executive Order 12900 (February 22, 1994) to provide the President and the Secretary of Education with advice on (1) the progress of Hispanic Americans toward achievement of the National Goals and other standards of educational accomplishment; (2) the development, monitoring, and education for Hispanic Americans; (3) ways to increase, State, county, private sector and community involvement in improving education; and (4) ways to expand and complement Federal education initiatives.

At this event, the Commission will celebrate its work under the Clinton Administration and acknowledge ongoing and future efforts to support Latinos in education.

Individuals who will need accommodations for a disability in order to attend the meeting ( i.e., interpreting services, assistive listening devices, materials in alternative format) should notify Richard Toscano, at (202) 401-1411, by no later than September 11. We will attempt to meet requests after this date, but cannot guarantee availability of the requested accommodation. The meeting site is accessible to individuals with disabilities.

Records of all Commission proceedings are available for public inspection at the White House Initiative, U.S. Department of Education, 400 Maryland Ave., S.W., Room 5E110, Washington, D.C. 20202 from 9:00 a.m. to 5:00 p.m. (est).

Title: 2000 Meat Products Industry Surveys (EPA ICR No.1961.01). This is a new collection.

Abstract: The 2000 Meat Products Industry Surveys will collect, from industry, the technical and economic information required by EPA to develop effluent limitations guidelines and pretreatment standards. The Surveys cover slaughtering, further processing, and rendering of animals classified as red meat and poultry.

EPA will issue these surveys under authority of section 308 of the Clean Water Act, 33 U.S.C. 1318, which authorizes EPA to require the owner or operator of a point source to submit certain information that EPA needs to develop effluent regulations. The Surveys will provide the technical and economic information required to effectively evaluate pollution control technologies and the economic achievability of those technologies. Respondents will have the right to claim information as confidential. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. The Federal Register document required under 5 CFR 1320.8(d), soliciting comments on this collection of information, was published on May 1, 2000 (65 FR 25325). Four sets of comments were received.

Burden Statement: The data collection consists of 3 elements: The Detailed Survey, the Screener Survey, and the 5-day analytical data requests for 20 facilities. The total nationwide public reporting and record keeping burden for this one-time, information collection is estimated to be 14,900 hours (30 hours per response for the Detailed Survey, 1 hour for the Screener Survey, and 138 hours for the analytical data). A facility receiving a request for analytical data is likely to also receive a survey. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; to adjust the existing ways to comply with any previously applicable instructions and requirements; to train personnel to be able to respond to a collection of information; to search data sources; to complete and review the collection of information; and to transmit or otherwise disclose the information.

EPA has identified approximately 8,000 facilities as potentially in the Meat Products Industry. EPA will send the Detailed Survey to approximately 350 sites and will send the Screener Survey to approximately 1,650 sites. The survey recipients will be selected using engineering judgement and statistical sampling methods. The estimated cost to complete the Detailed Survey is approximately $2,000 per site. The estimated cost for the screener survey is approximately $70 per site. For approximately 20 facilities, EPA will request five days of influent and effluent analytical data to be collected and sent to EPA labs for analysis. The estimated cost for each of these 20 sites is $9,500. The estimated total cost for the information collection burden is $1.03 million.

Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques to the addresses listed above. Please refer to EPA ICR No. 1961.01 in any inquiry.

The FPA is a voluntary agreement developed by UEP, EPA, various State water officials, environmental groups, and other stakeholders. Project XL, announced in the Federal Register on May 23, 1995 (60 FR 27282), gives regulated entities the opportunity to develop alternative strategies that will replace or modify specific regulatory requirements on the condition that they produce greater environmental benefits. If implemented, the draft FPA will offer environmental and resource benefits to States, EPA, the public, and egg producers. This project includes a program whereby egg-producing facilities could qualify for coverage under general National Pollutant Discharge Elimination System (NPDES) permits issued by EPA or states and achieve “superior environmental performance” by implementing an environmental management system (EMS), which would address a range of environmental problems that would not normally be addressed through NPDES permits alone. These other issues include odor, rodent control, pest control, preventative maintenance, emergency response and others. In order to be covered under a general permit instead of an individual permit, each facility would also need to be implementing an EMS to address these issues and have passed an audit by an independent third party to confirm that the EMS was in place and functioning properly. Facilities would communicate with the local community as the EMS was developed and implemented. Information on the results of the third-party audits would also be available to the local community and to regulatory agencies when the facility submitted a Notice of Intent to be covered under a general permit. Regular followup audits would also take place and the results of these audits would be publicly available. If the facility failed to remain in compliance with the general permit or failed to adequately implement its EMS, regulatory agencies could require the facility to obtain an individual permit. Finally, UEP would significantly expand its industry outreach and education program in order to help ensure that users of manure generated by egg producers was properly applied and managed, including help to users on how to develop Comprehensive Nutrient Management Plans over time.

The FPA is a voluntary agreement developed by Waste Management, the Commonwealth of Virginia, and USEPA. Project XL, announced in the Federal Register on May 23, 1995 (60 FR 27282), gives regulated entities the opportunity to develop alternative strategies that will replace or modify specific regulatory requirements on the condition that they produce greater environmental benefits. If implemented, the draft FPA will allow Waste Management to implement two slightly different waste treatment systems at two of its Virginia Landfills. Leachate recirculation would be implemented at its Maplewood Recycling and Waste Disposal Facility, owned and operated by Waste Management, Inc. subsidiary USA Waste of Virginia, Inc. Bioreactor operations would be implemented at the King George County Landfill and Recycling Facility, operated by Waste Management, Inc., subsidiary King George Landfills , Inc. Under the project, Waste Management is requesting flexibility from the regulatory requirement that restricts application of bulk liquids in municipal solid waste landfills (40 CFR 258.28) as well as similar flexibility under part V of Virginia Solid Waste Management Regulations. EPA expects to shortly publish a document in the Federal Register proposing and seeking public comment on a site-specific rule to modify the requirements of 40 CFR 258.28 for this project.

Project XL, announced in the Federal Register on May 23, 1995 (60 FR 27282), gives regulated entities the opportunity to develop alternative strategies that will replace or modify specific regulatory requirements on the condition that they produce greater environmental benefits. Under the Fort Worth XL project, the City of Fort Worth proposes to demonstrate that use of an alternative demolition method on abandoned buildings containing asbestos will protect the public from asbestos emissions as well as the demolition method specified in an asbestos emission standard issued by EPA under section 112 of the Clean Air Act. Moreover, the City expects that their lower cost demolition method will allow them to accelerate demolitions, thereby eliminating sites potentially harboring illegal activities and reducing safety/health hazards associated with the abandoned structures. To demonstrate the effectiveness of their method, the City will monitor asbestos emissions during the demolition of a single structure in Phase 1 of the project and, if Phase 1 monitoring results indicate the Fort Worth method is equivalent to the regulatory method, two additional structures during Phase 2. The project entails a set number of Fort Worth method demolitions under a third and final phase of the project, provided the results of Phase 2 continue to show equivalency.

The draft Monitoring Plan Agreement is a voluntary agreement developed with input from the City of Fort Worth, the Texas Department of Health, and EPA which lays out the protocol for capturing and analyzing asbestos emissions for Phase 1 of the project. The agreement also spells out the criteria by which the Fort Worth method can be shown equivalent to the Federal method, for the purposes of proceeding to Phase 2 of the project. The City does not require regulatory relief to perform the Phase 1 demolition, since the structure to be demolished is of a type that can be demolished under the asbestos standard using the Fort Worth method. To conduct phases 2 and 3 of the project, Fort Worth will need regulatory relief (specifically from 40 CFR part 61 subpart M—National Emission Standard for Asbestos). The details of these phases will be negotiated with stakeholders and set forth in a Final Project Agreement (FPA). A draft of the FPA will be available for public comment through a future Federal Register notice.

You may be potentially affected by this action if you manufacture or formulate pesticides. Potentially affected categories and entities may include, but are not limited to:

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether or not this notice affects certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

1. Electronically . You may obtain electronic copies of this document, the science policy documents, and certain other related documents that might be available from the Office of Pesticide Programs' Home Page at http://www.epa.gov/pesticides/. On the Office of Pesticide Programs' Home Page select “FQPA” and then look up the entry for this document under “Science Policies.” You can also go directly to the listings at the EPA Home page at http://www.epa.gov. On the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under “ Federal Register —Environmental Documents.” You can go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. Fax-on-Demand . You may request a faxed copy of the science policy documents, as well as supporting information, by using a faxphone to call (202) 401-0527. Select item 6065 for the document entitled “Office of Pesticide Programs' Science Policy on the Use of Data on Cholinesterase Inhibition for Risk Assessments of Organophosphorus and Carbamate Pesticides.” Select item 6066 for the document entitled “Responses to Public Comments on the Office of Pesticide Programs' 1997 Science Policy: The Use of Data on Cholinesterase Inhibition for Risk Assessments of Organophosphorus and Carbamate Pesticides.” You may also follow the automated menu.

3. In person . The Agency has established an official record for this action under docket control number OPP-00560A which includes a document summarizing an objection received during internal EPA review and EPA response to the objection. In addition, the documents referenced in the framework notice, which published in the Federal Register on October 29, 1998 (63 FR 58038) (FRL-6041-5) have also been inserted in the docket under docket control number OPP-00557. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Highway, Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

On August 3, 1996, the Food Quality Protection Act of 1996 (FQPA) was signed into law. The FQPA significantly amended the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA). Among other changes, FQPA established a stringent health-based standard (“a reasonable certainty of no harm”) for pesticide residues in foods to assure protection from unacceptable pesticide exposure and strengthened health protections for infants and children from pesticide risks.

Thereafter, the Agency established the Food Safety Advisory Committee (FSAC) as a subcommittee of the National Advisory Council for Environmental Policy and Technology (NACEPT) to assist in soliciting input from stakeholders and to provide input to EPA on some of the broad policy choices facing the Agency and on strategic direction for the Office of Pesticide Programs (OPP). The Agency has used the interim approaches developed through discussions with FSAC to make regulatory decisions that met FQPA's standard, but that could be revisited if additional information became available or as the science evolved. In addition, the Agency has sought independent review and public participation, generally through presentation of the science policy issues to the FIFRA Scientific Advisory Panel (SAP), a group of independent, outside experts who provide peer review and scientific advice to OPP.

During 1998 and 1999, as directed by Vice President Albert Gore, EPA worked with the U.S. Department of Agriculture (USDA) and a second subcommittee of NACEPT, the Tolerance Reassessment Advisory Committee (TRAC) to address FQPA issues and implementation. TRAC comprised more than 50 representatives of affected user, producer, consumer, public health, environmental, states and other interested groups. The TRAC met from May 27, 1998 through April 29, 1999.

In order to continue the constructive discussions about FFDCA, EPA and USDA have established, under the auspices of NACEPT, the Committee to Advise on Reassessment and Transition (CARAT). The CARAT provides a forum for a broad spectrum of stakeholders to consult with and advise the Agency and the Secretary of Agriculture on pest and pesticide management transition issues related to the tolerance reassessment process. The CARAT is intended to further the valuable work initiated by the FSAC and TRAC towards the use of sound science and greater transparency in regulatory decisionmaking, increased stakeholder participation, and reasonable transition strategies that reduce risks without jeopardizing American agriculture and farm communities. The CARAT held its first meeting on June 23, 2000. As a result of the TRAC process, the Agency decided that the FQPA implementation process and related policies would benefit from notice and comment on the major science policy issues.

The TRAC identified nine science policy issue areas they believed were key to implementation of tolerance reassessment. EPA agreed to provide one or more documents for comment on each of the nine issues by announcing their availability in the Federal Register . In a notice published in the Federal Register of October 29, 1998 (63 FR 58038), EPA described its intended approach. Since then, EPA has been issuing a series of draft and revised documents concerning the nine science policies. This notice announces the availability of the revised version of the science policy document entitled “The Use of Data on Cholinesterase Inhibition for Risk Assessments of Organophosphorus and Carbamate Pesticides.”

In 1997, EPA's Office of Pesticide Programs presented a science policy document entitled “The Use of Data on Cholinesterase Inhibition for Risk Assessments of Organophosphorus and Carbamate Pesticides” to the FIFRA Scientific Advisory Panel for review and comment. The 1997 science policy document described the approaches OPP would employ in assessing the potential for human health hazard from the cholinergic effects on nervous system function following exposure to cholinesterase-inhibiting pesticides.

In 1998, as part of its TRAC review of science policy issues, OPP published a draft version of the 1997 TRAC science policy document entitled “Office of Pesticide Programs' Science Policy on the Use of Data on Cholinesterase Inhibition for Risk Assessments of Organophosphorus and Carbamate Pesticides” on November 5, 1998 (63 FR 59780) (FRL-6042-3) and comments were filed under docket control number OPP-00560. Many persons also submitted comments on the 1997 policy document under docket control number OPP-00480 relative to the 1997 SAP meeting (62 FR 19572, April 22, 1997) (FRL-5714-2) and under docket control number OPP-00557 relative to the TRAC process. All of the comments and recommendations have been reviewed by OPP and incorporated into the revised science policy document, as appropriate.

As did the 1997 policy, this revised science policy document emphasizes the weighing of all relevant evidence when selecting endpoints for the hazard assessment of anticholinesterase pesticides. This “weight-of-the-evidence” review, conducted on a case-by-case, chemical-by-chemical basis, is accomplished by performing an integrative analysis after assessing all the individual lines of evidence (including all available data on cholinesterase inhibition in all compartments—central nervous system, peripheral nervous system, red blood cells, and plasma—as well as data on clinical signs, symptoms and other physiological or behavioral effects). Weighing of the evidence must include considerations of many factors, including the adequacy of study protocols; quality of data; number of studies on each endpoint; dose-dependency of responses; time course and duration of effects; and similarities or differences of responses observed in all the species, strains, and sexes tested for each duration and route of exposure evaluated.

In a weight-of-the-evidence assessment of cholinesterase-inhibiting substances, acetylcholinesterase inhibition in the nervous system is viewed as a key event in the mechanism of toxicity of these compounds and an important critical effect to consider in the hazard assessment. Evaluations of the cholinergic effects (i.e., physiological and behavioral changes and measures of cholinesterase inhibition in the central and peripheral nervous systems) caused by exposure to the cholinesterase-inhibiting organophosphorous and carbamate pesticides provide direct evidence for characterizing potential human health hazard. Because of likely differences in both the chemicals' and the cholinesterases' pharmacodynamic properties, measures of cholinesterase inhibition in both the central and peripheral nervous systems are important for a thorough evaluation of potential hazard. However, direct measurement of cholinesterase activity in peripheral nervous system tissues is rarely available at the present time. When these data are not available, as a matter of prudent science policy protective of human health, EPA will treat cholinesterase inhibition in the blood as a surrogate measure for the peripheral nervous system in animals and for both the peripheral and central nervous systems in humans. Information from blood cholinesterase inhibition data is considered to provide important insights into potential hazard.

Red blood cell (RBC) measures of acetylcholinesterase (AChE) are generally preferred over plasma measures of cholinesterase activity because data on red blood cells may provide a better representation of the inhibition of the neural target enzyme, acetylcholinesterase. OPP, however, may use plasma cholinesterase inhibition data under certain circumstances, such as if red blood cell data are insufficient, of poor quality, or unavailable; if there is a lack of dose-dependency for the red blood cell acetylcholinesterase inhibition; or, if the dose responses for inhibition of plasma cholinesterase more closely approximate those for AChE inhibition in the nervous system than do the dose responses for RBC acetylcholinesterase inhibition.

It should be noted that the present policy provides guidance only on how to deal with data as they relate to the cholinergic endpoints associated with nervous system function following exposure to organophosphorous and carbamate pesticides. This scope is consistent with all earlier descriptions of Agency assessment approaches as well as that of other organizations with regard to the evaluation of cholinesterase-inhibiting substances (e.g., WHO JMPR (1998), DPR-CalEPA (1997) and other national authorities). When applying the weight-of-the-evidence approach for selecting critical effect(s) for derivation of a reference dose (RfD) or concentration (RfC), however, the entire toxicological data base on a pesticide must be evaluated (i.e., there also must be consideration of endpoints not related to the cholinergic consequences of anticholinesterase activity, for instance, liver or developmental toxicity or carcinogenicity). It is possible that, for one or more of the exposure scenarios being evaluated, the non-cholinergic effects will be identified as critical or co-critical, and they may become a more appropriate basis for deriving RfDs or RfCs.

Finally, OPP policy documents are meant to be “living documents,” that is, they are open to periodic updating and revision to reflect advances in the science. Thus, this policy, too, will be updated to incorporate important new scientific knowledge as it becomes available. For example, the routine availability of data on acetylcholinesterase activity in the peripheral nervous system may allow for refinements in the hazard assessment approach for anticholinesterase chemicals. Also, as knowledge increases about the potential roles of the different cholinesterases in the developing organism, particularly as they impact the development of the nervous system, it may allow for refinements in evaluating the potential differential sensitivity and susceptibility of the young versus adults. In fact, a substantial research effort has been, and continues to be, made to determine what roles acetylcholine-, butyrylcholine-, and other esterases may play in the development of the nervous system and in cell growth, proliferation, and death in other tissues. OPP encourages further discussion of the possible implications of the research findings, both for future research planning and for the Agency's regulation of cholinesterase-inhibiting pesticides.

In the public comments referred to under Unit III., some commenters addressed the general policy and its rationale as well as all of the specific questions posed, while other reviewers provided detailed comments only on certain aspects of the policy. A listing of the names and affiliations of those who submitted comments is provided at the end of the document entitled “Responses to Public Comments on the Office of Pesticide Programs' 1997 Science Policy: The Use of Data on Cholinesterase Inhibition for Risk Assessments of Organophosphorus and Carbamate Pesticides.” This document contains a summary of the most significant revisions to the 1997 science policy document, followed by responses to comments.

In the draft science policy document, the Agency requested comment on ten questions to help focus public commment. In order to organize the responses to these questions in the response to comments document, the ten specific questions have been combined into six somewhat broader topic areas:

1. General weight-of-the-evidence issues related to the use of blood and brain measures as critical effects, differences between plasma and RBC measures and their use, and the weight-of-the-evidence approach (Questions 1, 2, and 9);

2. Peripheral nervous system measures (Questions 3 and 4);

3. Comparative measures in the young and adults (Questions 5 and 6);

4. Additional neurochemical measures (Questions 7 and 8);

5. Other comments.

6. Editorial comments on the science policy document (Question 10).

The policy document discussed in this notice is intended to provide guidance to EPA personnel and decision-makers, and to the public. As a guidance document and not a rule, the policy in this guidance is not binding on either EPA or any outside parties. Although this guidance provides a starting point for EPA risk assessments, EPA will depart from its policy where the facts or circumstances warrant. In such cases, EPA will explain why a different course was taken. Similarly, outside parties remain free to assert that a policy is not appropriate for a specific pesticide or that the circumstances surrounding a specific risk assessment demonstrate that a policy should not be applied.

None.

This is a summary of a Commission's Declaratory Ruling in CC Docket No. 96-45 released on August 10, 2000. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC 20554.

1. In this Declaratory Ruling, we provide guidance to remove uncertainty and terminate controversy regarding whether section 214(e)(1) of the Communications Act of 1934, as amended, (the Act) requires a common carrier to provide supported services throughout a service area prior to being designated an eligible telecommunications carrier (ETC) that may receive federal universal service support. We believe the guidance provided in this Declaratory Ruling is necessary to remove substantial uncertainty regarding the interpretation of section 214(e)(1) in pending state commission and judicial proceedings. We believe the guidance provided in this Declaratory Ruling will assist state commissions in acting expeditiously to fulfill their obligations under section 214(e) to designate competitive carriers as eligible for federal universal service support.

2. We believe that interpreting section 214(e)(1) to require the provision of service throughout the service area prior to ETC designation prohibits or has the effect of prohibiting the ability of competitive carriers to provide telecommunications service, in violation of section 253(a) of the Act. We find that such an interpretation of section 214(e)(1) is not competitively neutral, consistent with section 254, and necessary to preserve and advance universal service, and thus does not fall within the authority reserved to the states in section 253(b). In addition, we find that such a requirement conflicts with section 214(e) and stands as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress as set forth in section 254. Consequently, under both the authority of section 253(d) and traditional federal preemption authority, we find that to require the provision of service throughout the service area prior to designation effectively precludes designation of new entrants as ETCs in violation of the intent of Congress. We believe that the guidance provided in this Declaratory Ruling will further the goals of the Act by ensuring that new entrants have a fair opportunity to provide service to consumers living in high-cost areas.

3. We note that Western Wireless has raised similar issues in its petition for preemption of a decision of the South Dakota Public Utilities Commission (South Dakota PUC). In its petition, Western Wireless asks the Commission to preempt, under section 253 and as inconsistent with the Act, the South Dakota PUC's requirement that, pursuant to section 214(e), a carrier may not receive designation as an ETC unless it is providing service throughout the service area. In light of the recent South Dakota Circuit Court decision overturning the South Dakota PUC's decision and granting Western Wireless ETC status in each exchange served by non-rural telephone companies in South Dakota, we believe that it is unnecessary to act on the Western Wireless petition at this time. In doing so, we note that section 253(d) requires the Commission to preempt state action only “to the extent necessary to correct such violation or inconsistency.” We acknowledge, however, that the South Dakota Circuit Court Order has been automatically stayed with the filing of the South Dakota PUC's notice of appeal to the Supreme Court of South Dakota. We therefore place Western Wireless' petition for preemption of the South Dakota PUC Order in abeyance pending final resolution of this appeal. The Commission will make a determination at that time as to whether it is necessary to proceed consistent with the guidance provided in this Declaratory Ruling.

4. We find that requiring a new entrant to provide service throughout a service area prior to designation as an ETC has the effect of prohibiting the ability of the new entrant to provide intrastate or interstate telecommunications service, in violation of section 253(a).

5. Legal Requirement. As an initial matter, we find that the requirement that a new entrant must provide service throughout its service area as a prerequisite to designation as an ETC under section 214(e) constitutes a state “legal requirement” under section 253(a). We have previously concluded that Congress intended the phrase, “[s]tate or local statute or regulation, or other State or local requirement” in section 253(a), to be interpreted broadly. The resolution of a carrier's request for designation as an ETC by a state commission is legally binding on the carrier and may prohibit the carrier from receiving federal universal service support. We find therefore that any such requirement constitutes a “legal requirement” under section 253(a).

6. Prohibiting the Provision of Telecommunications Service. We find that an interpretation of section 214(e) requiring carriers to provide the supported services throughout the service area prior to designation as an ETC has the effect of prohibiting the ability of prospective entrants from providing telecommunications service. A new entrant faces a substantial barrier to entry if the incumbent local exchange carrier (LEC) is receiving universal service support that is not available to the new entrant for serving customers in high-cost areas. We believe that requiring a prospective new entrant to provide service throughout a service area before receiving ETC status has the effect of prohibiting competitive entry in those areas where universal service support is essential to the provision of affordable telecommunications service and is available to the incumbent LEC. Such a requirement would deprive consumers in high-cost areas of the benefits of competition by insulating the incumbent LEC from competition.

7. No competitor would ever reasonably be expected to enter a high-cost market and compete against an incumbent carrier that is receiving support without first knowing whether it is also eligible to receive such support. We believe that it is unreasonable to expect an unsupported carrier to enter a high-cost market and provide a service that its competitor already provides at a substantially supported price. Moreover, a new entrant cannot reasonably be expected to be able to make the substantial financial investment required to provide the supported services in high-cost areas without some assurance that it will be eligible for federal universal service support. In fact, the carrier may be unable to secure financing or finalize business plans due to uncertainty surrounding its designation as an ETC.

8. In addition, we find such an interpretation of section 214(e)(1) to be contrary to the meaning of that provision. Section 214(e)(1) provides that a common carrier designated as an eligible telecommunications carrier shall “offer” and advertise its services. The language of the statute does not require the actual provision of service prior to designation. We believe that this interpretation is consistent with the underlying congressional goal of promoting competition and access to telecommunications services in high-cost areas. In addition, this interpretation is consistent with the Commission's conclusion that a carrier must meet the section 214(e) criteria as a condition of its being designated an eligible carrier “and then must provide the designated services to customers pursuant to the terms of section 214(e) in order to receive support.”

9. In addition, we note that ETC designation only allows the carrier to become eligible for federal universal service support. Support will be provided to the carrier only upon the provision of the supported services to consumers. We note that ETC designation prior to the provision of service does not mean that a carrier will receive support without providing service. We also note that the state commission may revoke a carrier's ETC designation if the carrier fails to comply with the ETC eligibility criteria.

10. In addition, we believe the fact that a carrier may already be providing service within the state prior to designation is not conclusive of whether the carrier can reasonably be expected to provide service throughout the service area, particularly in high-cost areas, prior to designation. While a requirement that a carrier be providing service throughout the service area may not affect the provision of service in lower-cost areas, it is likely to have the effect of prohibiting the ability of carriers without eligibility for support to provide service in high-cost areas.

11. Gaps in Coverage. We find the requirement that a carrier provide service to every potential customer throughout the service area before receiving ETC designation has the effect of prohibiting the provision of service in high-cost areas. As an ETC, the incumbent LEC is required to make service available to all consumers upon request, but the incumbent LEC may not have facilities to every possible consumer. We believe the ETC requirements should be no different for carriers that are not incumbent LECs. A new entrant, once designated as an ETC, is required, as the incumbent is required, to extend its network to serve new customers upon reasonable request. We find, therefore, that new entrants must be allowed the same reasonable opportunity to provide service to requesting customers as the incumbent LEC, once designated as an ETC. Thus, we find that a telecommunications carrier's inability to demonstrate that it can provide ubiquitous service at the time of its request for designation as an ETC should not preclude its designation as an ETC.

12. State Authority. Finally, although Congress granted to state commissions, under section 214(e)(2), the primary authority to make ETC designations, we do not agree that this authority is without any limitation. While state commissions clearly have the authority to deny requests for ETC designation without running afoul of section 253, the denials must be based on the application of competitively neutral criteria that are not so onerous as to effectively preclude a prospective entrant from providing service. We believe that this is consistent with sections 214(e), 253, and 254, as well as the decision of the United States Court of Appeals for the Fifth Circuit in Texas Office of Public Utility Counsel v. FCC. We reiterate, however, that the state commissions are primarily responsible for making ETC designations. Nothing in this Declaratory Ruling is intended to undermine that responsibility. In fact, it is our expectation that the guidance provided in this Declaratory Ruling will enable state commissions to move expeditiously, in a pro-competitive manner, on many pending ETC designation requests.

13. We find that a requirement to provide the supported services throughout the service area prior to designation as an ETC does not fall within the “safe harbor” provisions of section 253(b). To the contrary, we find that this requirement is not competitively neutral, consistent with section 254, or necessary to preserve and advance universal service. We therefore find that a requirement that obligates new entrants to provide supported services throughout the service area prior to designation as an ETC is subject to our preemption authority under section 253(d).

14. Competitive Neutrality. We find that the requirement to provide service prior to designation as an ETC is not competitively neutral. We believe this finding is consistent with the Commission's determination in the Universal Service Order, 62 FR 32862 (June 17, 1997), that “[c]ompetitive neutrality means that universal service support mechanisms and rules neither unfairly advantage nor disadvantage one provider over another, and neither unfairly favor nor disfavor one technology over another.” At the outset, we believe that, to meet the competitive neutrality requirement in non-rural telephone company service areas, the procedure for designating carriers as ETCs should be functionally equivalent for incumbents and new entrants. As discussed above, requiring the actual provision of supported services throughout the service area prior to ETC designation unfairly skews the universal service support mechanism in favor of the incumbent LEC. As a practical matter, the carrier most likely to be providing all the supported services throughout the requested designation area before ETC designation is the incumbent LEC. Without the assurance of eligibility for universal service funding, it is unlikely that any non-incumbent LEC will be able to make the necessary investments to provide service in high-cost areas.

15. We are not persuaded that such a requirement is competitively neutral merely because the requirement to provide service prior to ETC designation applies equally to both new entrants and incumbent LECs. We recently concluded that the proper inquiry is whether the effect of the legal requirement, rather than the method imposed, is competitively neutral. As discussed above, we find that the result of such a requirement is to favor incumbent LECs over new entrants. Unlike a new entrant, the incumbent LEC is already providing service and therefore bears no additional burden from a requirement that it provide service prior to designation as an ETC. We therefore find that requiring the provision of supported services throughout the service area prior to ETC designation has the effect of uniquely disadvantaging new entrants in violation of section 253(b)'s requirement of competitive neutrality.

16. Consistent with Section 254 and Necessary to Preserve and Advance Universal Service. We find that the requirement to provide service prior to designation as an ETC is not consistent with section 254 or “necessary to preserve and advance universal service.” To the contrary, we find that such a requirement has the effect of prohibiting the provision of service in high-cost areas. As discussed above, this requirement clearly has a disparate impact on new entrants, in violation of the competitive neutrality and nondiscriminatory principles embodied in section 254. We believe that it is unreasonable to expect an unsupported carrier to enter a high-cost market and provide a service that its competitor already provides at a substantially supported price. If new entrants are not provided with the same opportunity to receive universal service support as the incumbent LEC, such carriers will be discouraged from providing service and competition in high-cost areas. Consequently, under an interpretation of section 214(e) that requires new entrants to provide service throughout the service area prior to designation as an ETC, the benefits that may otherwise occur as a result of access to affordable telecommunications services will not be available to consumers in high-cost areas. We believe such a result is inconsistent with the underlying universal service principles set forth in section 254(b) that are designed to preserve and advance universal service by promoting access to telecommunications services in high-cost areas.

17. A new entrant can make a reasonable demonstration to the state commission of its capability and commitment to provide universal service without the actual provision of the proposed service. There are several possible methods for doing so, including, but not limited to: a description of the proposed service technology, as supported by appropriate submissions; a demonstration of the extent to which the carrier may otherwise be providing telecommunications services within the state; a description of the extent to which the carrier has entered into interconnection and resale agreements; or, a sworn affidavit signed by a representative of the carrier to ensure compliance with the obligation to offer and advertise the supported services. We caution that a demonstration of the capability and commitment to provide service must encompass something more than a vague assertion of intent on the part of a carrier to provide service. The carrier must reasonably demonstrate to the state commission its ability and willingness to provide service upon designation.

18. We find an interpretation of section 214(e)(1) that requires a new entrant to provide service throughout the service area prior to designation as an ETC to be fundamentally inconsistent with the universal service provisions in the 1996 Act. Specifically, we find such a requirement to be inconsistent with the meaning of section 214(e)(1), Congress' universal service objectives as outlined in section 254, and the Commission's policies and rules in implementing section 254. As discussed above, this approach essentially requires a new entrant to provide service throughout high-cost areas prior to its designation as an ETC. We find that such a requirement stands as an obstacle to the Commission's execution and accomplishment of the full objectives of Congress in promoting competition and access to telecommunications services in high-cost areas. To the extent that a state's requirement under section 214(e)(1) that a new entrant provide service throughout the service area prior to designation as an ETC also involves matters properly within the state's intrastate jurisdiction under section 2(b) of the Act, such matters that are inseparable from the federal interest in promoting universal service in section 254 remain subject to federal preemption.

19. Section 214. We find that the requirement that a carrier provide service throughout the service area prior to its designation as an ETC conflicts with the meaning and intent of section 214(e)(1). Section 214(e)(1) provides that a common carrier designated as an eligible telecommunications carrier shall “offer” and advertise its services. The statute does not require a carrier to provide service prior to designation. As discussed above, we have concluded that a carrier cannot reasonably be expected to enter a high-cost market prior to its designation as an ETC and provide service in competition with an incumbent carrier that is receiving support. We believe that such an interpretation of section 214(e) directly conflicts with the meaning of section 214(e)(1) and Congress' intent to promote competition and access to telecommunications service in high-cost areas.

20. While Congress has given the state commissions the primary responsibility under section 214(e) to designate carriers as ETCs for universal service support, we do not believe that Congress intended for the state commissions to have unlimited discretion in formulating eligibility requirements. Although Congress recognized that state commissions are uniquely suited to make ETC determinations, we do not believe that Congress intended to grant to the states the authority to adopt eligibility requirements that have the effect of prohibiting the provision of service in high-cost areas by non-incumbent carriers. To do so effectively undermines congressional intent in adopting the universal service provisions of section 254.

21. Section 254. Consistent with the guidance provided above, we find a requirement that a carrier provide service prior to designation as an ETC inconsistent with the underlying principles and intent of section 254. Specifically, section 254 requires the Commission to base policies for the advancement and preservation of universal service on principles that include promoting access to telecommunications services in high-cost and rural areas of the nation. Because section 254(e) provides that only a carrier designated as an ETC under section 214(e) may be eligible to receive federal universal service support, an interpretation of section 214(e) requiring carriers to provide service throughout the service area prior to designation as an ETC stands as an obstacle to the accomplishment of the congressional objectives outlined in section 254. If new entrants are effectively precluded from universal service support eligibility due to onerous eligibility criteria, the statutory goals of preserving and advancing universal service in high-cost areas are significantly undermined.

22. In addition, such a requirement conflicts with the Commission's interpretation of section 254, specifically the principle of competitive neutrality adopted by the Commission in the Universal Service Order . In the Universal Service Order , the Commission stated that, “competitive neutrality in the collection and distribution of funds and determination of eligibility in universal service support mechanisms is consistent with congressional intent and necessary to promote a pro-competitive, de-regulatory national policy framework.” As discussed above, a requirement to provide service throughout the service area prior to designation as an ETC violates the competitive neutrality principle by unfairly skewing the provision of universal service support in favor of the incumbent LEC. As stated in the Universal Service Order , “competitive neutrality will promote emerging technologies that, over time, may provide competitive alternatives in rural, insular, and high cost areas and thereby benefit rural consumers.” Requiring new entrants to provide service throughout the service area prior to ETC designation discourages “emerging technologies” from entering high-cost areas. In addition, we note that section 254(f) provides that, “[a] State may adopt regulations not inconsistent with the Commission's rules to preserve and advance universal service.” For the reasons discussed extensively above, we find an interpretation of section 214(e) requiring the provision of service throughout the service area prior to designation as an ETC to be inconsistent with the Commission's universal service policies and rules.

23. Pursuant to sections 4(i), 253, and 254 of the Communications Act of 1934, as amended, and section 1.2 of the Commission's rules, and Article VI of the U.S. Constitution, that this Declaratory Ruling is adopted.

24. It is further ordered that Western Wireless' Petition for Preemption of an Order of the South Dakota Public Utilities Commission shall be placed in abeyance pending resolution of the appeal.

This is a summary of the Commission's Second Further Notice of Proposed Rulemaking in CC Docket No. 98-147, FCC 00-297, adopted on August 9, 2000, and released August 10, 2000. This NPRM contains proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA). It has been submitted to the Office of Management and Budget (OMB) for review under the PRA. OMB, the general public, and other Federal agencies are invited to comment on the proposed information collections contained in this proceeding. The complete text of this Second Further Notice of Proposed Rulemaking is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 Twelfth Street, S.W. Washington, D.C., and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS), CY-B400, 445 Twelfth Street, S.W., Washington, D.C.

1. The Second Further Notice of Proposed Rulemaking responds to the decision of the United States Court of Appeals for the District of Columbia Circuit in GTE Service Corp. v. FCC, 205 F.3d 416 (D.C. Cir. 2000) by requesting comment on the meaning of “necessary” and “physical collocation,” as used in section 251(c)(6). In addition, the Second Further Notice of Proposed Rulemaking in CC Docket No. 98-147 asks whether an incumbent LEC must permit collocators to cross-connect with other collocators; whether the Commission should require incumbent LECs to make physical collocation space available in increments smaller than the space necessary to accommodate a single rack or bay of equipment; whether the Commission should amend its collocation to facilitate line-sharing and subloop unbundling; and regarding collocation at remote incumbent LEC premises.

2. In addition, the Second Further Notice requests comment on whether the Commission should specify an overall maximum collocation provisioning interval shorter than 90 calendar days or shorter intervals for particular types of collocation arrangements, such as cageless collocation, modifications to existing collocation arrangements, or collocation within remote incumbent LEC structures and whether the Commission should adopt national standards governing the period for which incumbent LECs and collocating carriers can reserve space for future use in incumbent LEC premises.

3. This NPRM contains a proposed information collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection(s) contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due at the same time as other comments on this NPRM; OMB notification of action is due November 7, 2000. Comments should address: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: None.

Title: Proposed Demographic Information and Notifications, Second FNPRM, CC Docket No. 98-147, and Fifth FNPRM, CC Docket No. 96-98.

Form No.: N/A.

Type of Review: New Collections.

Respondents: Business or other for-profit.

Number of Respondents: 1400.

Estimated Time Per Response: 2 hours.

Total Annual Burden: 2800 hours.

Cost to Respondents: $0.

Needs and Uses: Requesting carriers would use demographic and other information obtained from incumbent LECs to determine whether they wish to collocate at particular remote terminals.

4. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Advanced Services Order and NPRM (Notice) in CC Docket 98-147. The Commission sought written public comment on the proposals in the Notice, including comment on the IRFA. We received no comments specifically directed toward the IRFA. In addition, we incorporated the Final Regulatory Flexibility Analysis (FRFA) into the Advanced Services First Report and Order and received no petitions for reconsideration specifically directed toward the FRFA. This Supplemental Final Regulatory Flexibility Analysis (SFRFA) conforms to the RFA.

5. This Second Further Notice continues our efforts to facilitate the development of competition in telecommunications services. In the Advanced Services First Report and Order, 63 FR 45133, August 24, 1998, we strengthened our collocation rules to reduce the costs and delays faced by competitors that seek to collocate equipment in incumbent LEC premises. While many aspects of those rules were affirmed on appellate review, the D.C. Circuit vacated and remanded certain aspects of those rules. In this Second Further Notice, we invite comment on what action we should take regarding the rules the D.C. Circuit vacated and remanded, and on other collocation related issues.

6. In the IRFA, we stated that any rule changes would impose minimum burdens on small entities and solicited comments on alternatives to our proposed rules that would minimize the impact that might have on small entities. In the Final Regulatory Flexibility Analysis (FRFA), we discussed the impact on small entities of the rules adopted in the Advanced Services First Report and Order. As noted above, we have received no comments or petitions specifically directed to the IRFA or the FRFA. In making the determinations reflected in the Order, however, we have considered the impact of our actions on small entities.

7. In the IRFA to the Advanced Services Order and NPRM, we adopted the analysis and definitions set forth in determining the small entities affected by this Second Further Notice of Proposed Rulemaking for purposes of this SFRFA. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of entities that will be affected by the rules. The RFA generally defines “small entity” as having the same meaning as the term “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate to its activities. Under the Small Business Act, a “small business concern” is one that: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA). The SBA has defined a small business for Standard Industrial Classification (SIC) categories 4812 (Radiotelephone) to be small entities when they have no more than 1,500 employees. We first discuss the number of small telephone companies falling within these SIC categories, then attempt to refine further those estimates to correspond with the categories of telephone companies that are commonly used under our rules.

8. The most reliable source of information regarding the total numbers of common carrier and related providers nationwide, as well as the numbers of commercial wireless entities, appears to be data the Commission publishes annually in its Carrier Locator report, derived from filings made in connection with the Telecommunications Relay Service (TRS). According to data in the most recent report, there are 4,144 interstate carriers. These carriers include, inter alia, LECs, wireline carriers and service providers, interexchange carriers, competitive access providers, operators services providers, pay telephone operators, providers of telephone toll service, providers of telephone exchange service, and resellers.

9. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on FCC analyses and determinations in other, non-RFA contexts.

10. Total Number of Telephone Companies Affected. The United States Bureau of the Census (Census Bureau) reports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. These firms include a variety of different categories of carriers, including LECs, interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator service providers, pay telephone operators, PCS providers, covered SMR providers, and resellers. It seems certain that some of those 4,144 telephone service firms may not qualify as small entities or small incumbent LECs because they are not “independently owned and operated.” For example, a PCS provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet the definition of a small business. It seems reasonable to conclude, therefore, that fewer than 4,144 telephone service firms are small entity telephone service firms or small incumbent LECs that may be affected by the decisions and rules that potentially could be adopted based upon this Second Further Notice.

11. Wireline Carriers and Service Providers. SBA has developed a definition of small entities for telephone communications companies other than radiotelephone companies. The Census Bureau reports that, there were 2,321 such telephone companies in operation for at least one year at the end of 1992. According to SBA's definition, a small business telephone company other than a radiotelephone company is one employing no more than 1,500 persons. All but 26 of the 2,231 non-radiotelephone companies listed by the Census Bureau were reported to have fewer than 1,000 employees. Thus, even if all 26 of those companies had more than 1,500 employees, there would still be 2,295 non-radiotelephone companies that might qualify as small entities or small incumbent LECs. Although it seems certain that some of these carriers are not independently owned and operated, we are unable at this time to estimate with greater precision the number of wireline carriers and service providers that would qualify as small business concerns under SBA's definition. Consequently, we estimate that there are fewer than 2,295 small entity telephone communications companies other than radiotelephone companies that may be affected by the decisions and rules that could potentially result from this Second Further Notice.

12. Local Exchange Carriers. The Commission has not developed a special size definition of small LECs or competitive LECs. The closest applicable definition for these types of carriers under SBA rules is, again, that used for telephone communications companies other than radiotelephone (wireless) companies. The most reliable source of information regarding the number of these carriers nationwide of which we are aware appears to be the data that we collect annually in connection with the Telecommunications Relay Service (TRS). According to our most recent data, there are 1,348 incumbent LECs, 212 competitive LECs, and 442 resellers. Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of these carriers that would qualify as small business concerns under SBA's definition. Consequently, we estimate that there are no more than 1,348 small entity incumbent LECs, 212 competitive LECs, and 442 resellers that may be affected by the decisions and rules that could result from this Second Further Notice.

13. In the Second Further Notice, we seek comment regarding rules recently vacated and remanded by the D.C. Circuit, as well as on other issues regarding collocation by incumbent LECs. We invite comment, for instance, on whether we should require incumbent LECs to make physical collocation space available in increments smaller than the space necessary to accommodate a single rack or bay of equipment. We request comment on issues relating to collocation at remote incumbent LEC premises, and on whether we should change our collocation rules to facilitate line sharing and subloop unbundling. We ask whether we should specify an overall maximum collocation provisioning interval shorter than 90 calendar days or shorter intervals for particular types of collocation arrangements, such as cageless collocation, modifications to existing collocation arrangements, or collocation within remote incumbent LEC structures. We also ask whether we should adopt national standards governing the period for which incumbent LECs and collocating carriers can reserve space for future use in incumbent LEC premises. As described, the measures under consideration in this Second Further Notice may, if adopted, result in additional reporting, record keeping, or other compliance requirements for telecommunications carriers, including small entities.

14. In this Second Further Notice, we seek to develop a record sufficient to adequately address issues related to developing long-term policies related to collocation. In addressing these issues, we seek to ensure that competing providers, including small entity carriers, obtain access to inputs necessary to the provision of advanced services. We believe that the issues on which we invite comment would impose minimal burdens on small entities, including both telecommunications carriers that request collocation and the incumbent LECs that, under section 251 of the Communications Act, must provide collocation to requesting carriers. As indicated above, both groups of carriers include entities that, for purposes of this SIRFA, are classified as small entities. In framing the issues in this Second Further Notice, we have sought to develop a record on the potential impact our proposed rules could have upon small entities. We thus ask that commenters propose measures to avoid significant economic impact on small business entities.

15. Pursuant to sections 1-4, 201, 202, 251-254, 256, 271, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201, 202, 251-254, 256, 271, and 303(r), that the Second Further Notice of Proposed Rulemaking in CC Docket No. 98-147 and the Fifth Further Notice of Proposed Rulemaking in CC Docket No. 96-98 (Published elsewhere in this issue) Are Adopted.

16. The Commission's Consumer Information Bureau, Reference Information Center, Shall Send a copy of this Order on Reconsideration and Second Further Notice of Proposed Rulemaking in CC Docket No. 98-147 and this Fifth Further Notice of Proposed Rulemaking in CC Docket No., including the Supplemental Final Regulatory Flexibility Analysis and the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

This is a summary of the Commission's Fifth Further Notice of Proposed Rulemaking (5th FNPRM) in CC Docket No. 96-98, FCC 00-297, adopted on August 9, 2000, and released August 10, 2000. This 5th FNPRM contains proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA). It has been submitted to the Office of Management and Budget (OMB) for review under the PRA. OMB, the general public, and other Federal agencies are invited to comment on the proposed information collections contained in this proceeding. The complete text of this Fifth Further Notice of Proposed Rulemaking is available for inspection and copying during normal business hours in the FCC Reference Information Center, Courtyard Level, 445 Twelfth Street, S.W. Washington, D.C., and also may be purchased from the Commission's copy contractor, International Transcription Services (ITS), CY-B400, 445 Twelfth Street, S.W., Washington, D.C.

1. The Fifth Further Notice of Proposed Rulemaking in CC Docket No. 96-98 invites comment on whether the Commission should amend its local competition rules to respond to new network architectures being deployed by incumbent LECs. In the Fifth Further Notice, we invite comment on several issues concerning the deployment of new network architectures, including whether we should modify or clarify our definition of the loop and transport elements to include access for requesting carriers at the wavelength level. We also request comment on the features, functions, and capabilities of the subloop created by the deployment of new network architectures. We invite comment on incumbent LECs' obligations to provide unbundled access to the subloop, particularly the fiber feeder portion, in situations where there is inadequate existing capacity. In addition, we invite comment on whether, as part of their deployment of additional fiber facility, incumbent LECs plan to retire and remove existing copper plant and how that would affect their obligations under our local competition rules. We seek comment on whether we should change the technically feasible points at which competing carriers may access subloops at remote terminal locations.

2. This 5th FNPRM contains a proposed information collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection(s) contained in this 5th FNPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due at the same time as other comments on this 5th FNPRM; OMB notification of action is due November 7, 2000 of this 5th FNPRM. Comments should address: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: None.

Title: Proposed Demographic Information and Notifications, Second FNPRM, CC Docket No. 98-147, and Fifth FNPRM, CC Docket No. 96-98.

Form No.: N/A.

Type of Review: New Collections.

Respondents: Business or other for-profit.

Number of Respondents: 1400.

Estimated Time Per Response: 2 hours.

Total Annual Burden: 2800 hours.

Cost to Respondents: $0.

Needs and Uses: The Commission seeks comment on whether incumbent LECs are required under section 251(c)(5) or any other provision of the Act to notify competing carriers of where they are deploying fiber facilities in the loop. Competing carriers would use this information in planning their networks. The Commission also seeks comment on whether incumbents should provide notice to competitors before retiring and removing copper facilities. Competing carriers would use this information to ensure that such retirements and removals do not prevent them from delivering advanced services to their customers.

3. As required by the Regulatory Flexibility Act (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Advanced Services Order and Notice of Proposed Rulemaking 63 FR 45140, August 24, 1998, in CC Docket 98-147. The Commission sought written public comment on the proposals in the Notice, including comment on the IRFA. We received no comments specifically directed toward the IRFA. In addition, we incorporated the Final Regulatory Flexibility Analysis (FRFA) into the Advanced Services First Report and Order and received no petitions for reconsideration specifically directed toward the FRFA. This Supplemental Final Regulatory Flexibility Analysis (SFRFA) conforms to the RFA.

4. This 5th FNPRM continues the Commission's efforts to facilitate the development of competition in telecommunications services, particularly local telecommunications. The Commission invites comment on whether we should amend our unbundled network element rules to ensure that carriers are able to gain competitive access to transport, subloops, and loops as incumbent LECs introduce new network technologies. Specifically, the Commission seeks comment on the legal and policy bases for amending its local competition unbundling rules to ensure that competitors will have competitive access to transport, subloops, and loops as new network technologies are deployed.

5. In the IRFA, we stated that any rule changes would impose minimum burdens on small entities and solicited comments on alternatives to our proposed rules that would minimize the impact that might have on small entities. In the Final Regulatory Flexibility Analysis (FRFA), we discussed the impact on small entities of the rules adopted in the Advanced Services First Report and Order 63 FR 45133, August 24, 1998. As noted, we have received no comments or petitions specifically directed to the IRFA or the FRFA. In making the determinations reflected in the Order, however, we have considered the impact of our actions on small entities.

6. In the IRFA to the Advanced Services Order and NPRM, we adopted the analysis and definitions set forth in determining the small entities affected by this Fifth Further Notice of Proposed Rulemaking for purposes of this SFRFA. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of entities that will be affected by the rules. The RFA generally defines “small entity” as having the same meaning as the term “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act, unless the Commission has developed one or more definitions that are appropriate to its activities. Under the Small Business Act, a “small business concern” is one that: (a) is independently owned and operated; (b) is not dominant in its field of operation; and (c) meets any additional criteria established by the Small Business Administration (SBA). The SBA has defined a small business for Standard Industrial Classification (SIC) categories 4812 (Radiotelephone) to be small entities when they have no more than 1,500 employees. We first discuss the number of small telephone companies falling within these SIC categories, then attempt to refine further those estimates to correspond with the categories of telephone companies that are commonly used under our rules.

7. The most reliable source of information regarding the total numbers of common carrier and related providers nationwide, as well as the numbers of commercial wireless entities, appears to be data the Commission publishes annually in its Carrier Locator report, derived from filings made in connection with the Telecommunications Relay Service (TRS). According to data in the most recent report, there are 4,144 interstate carriers. These carriers include, inter alia, LECs, wireline carriers and service providers, interexchange carriers, competitive access providers, operators services providers, pay telephone operators, providers of telephone toll service, providers of telephone exchange service, and resellers.

8. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g. , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on FCC analyses and determinations in other, non-RFA contexts.

9. Total Number of Telephone Companies Affected. The United States Bureau of the Census (Census Bureau) reports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined therein, for at least one year. These firms include a variety of different categories of carriers, including LECs, interexchange carriers, competitive access providers, cellular carriers, mobile service carriers, operator service providers, pay telephone operators, PCS providers, covered SMR providers, and resellers. It seems certain that some of those 4,144 telephone service firms may not qualify as small entities or small incumbent LECs because they are not “independently owned and operated.” For example, a PCS provider that is affiliated with an interexchange carrier having more than 1,500 employees would not meet the definition of a small business. It seems reasonable to conclude, therefore, that fewer than 4,144 telephone service firms are small entity telephone service firms or small incumbent LECs that may be affected by the decisions and rules that potentially could be adopted based upon this Fifth Further Notice.

10. Wireline Carriers and Service Providers. SBA has developed a definition of small entities for telephone communications companies other than radiotelephone companies. The Census Bureau reports that, there were 2,321 such telephone companies in operation for at least one year at the end of 1992. According to SBA's definition, a small business telephone company other than a radiotelephone company is one employing no more than 1,500 persons. All but 26 of the 2,231 non-radiotelephone companies listed by the Census Bureau were reported to have fewer that 1,000 employees. Thus, even if all 26 of those companies had more than 1,500 employees, there would still be 2,295 non-radiotelephone companies that might qualify as small entities or small incumbent LECs. Although it seems certain that some of these carriers are not independently owned and operated, we are unable at this time to estimate with greater precision the number of wireline carriers and service providers that would qualify as small business concerns under SBA's definition. Consequently, we estimate that there are fewer than 2,295 small entity telephone communications companies other than radiotelephone companies that may be affected by the decisions and rules that could potentially result from this 5th FNPRM.

11. Local Exchange Carriers. The Commission has not developed a special size definition of small LECs or competitive LECs. The closest applicable definition for these types of carriers under SBA rules is, again, that used for telephone communications companies other than radiotelephone (wireless) companies. The most reliable source of information regarding the number of these carriers nationwide of which we are aware appears to be the data that we collect annually in connection with the Telecommunications Relay Service (TRS). According to our most recent data, there are 1,348 incumbent LECs, 212 competitive LECs, and 442 resellers. Although it seems certain that some of these carriers are not independently owned and operated, or have more than 1,500 employees, we are unable at this time to estimate with greater precision the number of these carriers that would qualify as small business concerns under SBA's definition. Consequently, we estimate that there are no more than 1,348 small entity incumbent LECs, 212 competitive LECs, and 442 resellers that may be affected by the decisions and rules that could result from this Fifth Further Notice.

12. In the 5th FNPRM in CC Docket No. 96-98, we invite comment on several issues concerning the deployment of new network architectures. We ask, for instance, whether we should modify or clarify our definition of the loop to include access for requesting carriers at the wavelength level. We request comment on the features, functions, and capabilities of the subloop created by the deployment of new network architectures. We invite comment on incumbent LECs' obligations to provide unbundled access to the subloop, particularly the fiber feeder portion, in situations where there is inadequate existing capacity. We also seek comment on whether we should change the technically feasible points at which competing carriers may access subloops at remote terminal locations. We further invite comment on whether, as part of their deployment of additional fiber facility, incumbent LECs plan to retire and remove existing copper plant and how that would affect their obligations under our local competition rules. Finally, we inquire about whether we should alter our definition of the transport element in view of new network architectures being deployed by carriers.

13. In the 5th FNPRM, we seek to develop a record sufficient to adequately address issues related to developing long-term policies for ensuring that competitive carriers have access to unbundled network elements as changes are made to traditional telephone networks. In addressing these issues, we seek to ensure that competing providers, including small entity carriers, obtain access to inputs necessary to the provision voice and advanced telecommunications services. We believe that the issues on which we invite comment could impose minimal burdens on small entities, including both telecommunications carriers that request unbundled network elements and the incumbent LECs that, under section 251 of the Communications Act, must provide unbundled network elements to requesting carriers. As indicated, both groups of carriers include entities that, for purposes of this SIRFA, are classified as small entities. In framing the issues in this Fifth Further Notice, we have sought to develop a record on the potential impact our proposed rules could have upon small entities. We thus ask that commenters propose measures to avoid significant economic impact on small business entities.

14. Pursuant to sections 1-4, 201, 202, 251-254, 256, 271, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201, 202, 251-254, 256, 271, and 303(r), that the Second Further Notice of Proposed Rulemaking in (Published elsewhere in this issue) CC Docket No. 98-147 and the Fifth Further Notice of Proposed Rulemaking in CC Docket No. 96-98 Are Adopted.

15. The Commission's Consumer Information Bureau, Reference Information Center, Shall Send a copy of this Order on Reconsideration and Second Further Notice of Proposed Rulemaking (Published elswhere in this issue) in CC Docket No. 98-147 and this Fifth Further Notice of Proposed Rulemaking in CC Docket No., including the Supplemental Final Regulatory Flexibility Analysis and the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.