[Federal Register Volume 75, Number 150 (Thursday, August 5, 2010)]
[Notices]
[Pages 47270-47274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19286]


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DEPARTMENT OF COMMERCE

International Trade Administration

(A-570-855)


Certain Non-Frozen Apple Juice Concentrate from the People's 
Republic of China: Notice of Preliminary Results of the New Shipper 
Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting a 
new shipper review (``NSR'') of the antidumping duty order, covering 
the period of review (``POR'') of June 1, 2009, through January 20, 
2010. If these preliminary results are adopted in our final results of 
review, we will instruct U.S. Customs and Border Protection (``CBP'') 
to assess antidumping duties on entries of subject merchandise during 
the POR for which the importer-specific assessment rates are above de 
minimis.

[[Page 47271]]


EFFECTIVE DATE: August 5, 2010.

FOR FURTHER INFORMATION CONTACT: Alexis Polovina, AD/CVD Operations, 
Office 9, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington DC 20230; telephone: (202) 482-3927.

SUPPLEMENTARY INFORMATION:

General Background

    On June 5, 2000, the Department published in the Federal Register 
the antidumping duty order on certain non-frozen apple juice 
concentrate from the People's Republic of China (``PRC''). See Notice 
of Amended Final Determination of Sales at Less Than Fair Value and 
Antidumping Duty Order: Certain Non-Frozen Apple Juice Concentrate From 
the People's Republic of China, 65 FR 35606 (June 5, 2000) (``Order''). 
On December 15, 2009, pursuant to section 751(a)(2)(B)(i) of the Tariff 
Act of 1930, as amended (``Act''), and 19 CFR 351.214(c), the 
Department received a NSR request from Lingbao Xinyuan Fruit Industry 
Co., Ltd. (``LXFI''). LXFI certified that it is a producer and exporter 
of the subject merchandise upon which the request was based. On 
February 4, 2010, the Department initiated the requested antidumping 
duty NSR. See Certain Non-Frozen Apple Juice Concentrate from the 
People's Republic of China: Initiation of Antidumping Duty New Shipper 
Review, 75 FR 5763 (February 4, 2010).
    On February 16, 2010, the Department issued original questionnaires 
to LXFI. Between March 9, 2010, and July 9, 2010, LXFI submitted 
responses to the original sections A, C, and D questionnaires and 
supplemental sections A, C, and D questionnaires.

Surrogate Country and Surrogate Values

    On March 2, 2010, the Department sent interested parties a letter 
requesting comments on surrogate country selection and information 
pertaining to valuing factors of production (``FOP''). On April 22, 
2010, LXFI submitted comments on the surrogate country. On June 23, 
2010, LXFI submitted surrogate value data. No other party submitted 
surrogate country or surrogate value data.

Scope of the Order

    The product covered by this order is certain non-frozen apple juice 
concentrate. Apple juice concentrate is defined as all non-frozen 
concentrated apple juice with a brix scale of 40 or greater, whether or 
not containing added sugar or other sweetening matter, and whether or 
not fortified with vitamins or minerals. Excluded from the scope of 
this order are: frozen concentrated apple juice; non-frozen 
concentrated apple juice that has been fermented; and non-frozen 
concentrated apple juice to which spirits have been added.
    The merchandise subject to this order is classified in the 
Harmonized Tariff Schedule of the United States (``HTSUS'') at 
subheadings 2106.90.52.00, and 2009.70.00.20 before January 1, 2002, 
and 2009.79.00.20 after January 1, 2002. Although the HTSUS subheadings 
are provided for convenience and customs purposes, the written 
description of the scope of the order is dispositive.

Non-Market Economy Country Status

    In every case conducted by the Department involving the PRC, the 
PRC has been treated as a non-market economy (``NME'') country. See, 
e.g., Pure Magnesium from the People's Republic of China: Final Results 
of Antidumping Duty Administrative Review, 73 FR 76336 (December 16, 
2008); and Frontseating Service Valves From the People's Republic of 
China: Final Determination of Sales at Less Than Fair Value and Final 
Negative Determination of Critical Circumstances, 74 FR 10886 (March 
13, 2009). In accordance with section 771(18)(C)(i) of the Act, any 
determination that a foreign country is an NME country shall remain in 
effect until revoked by the administering authority. None of the 
parties to this proceeding have contested such treatment. Accordingly, 
we calculated NV in accordance with section 773(c) of the Act, which 
applies to NME countries.

Separate Rate Determinations

    A designation as a NME remains in effect until it is revoked by the 
Department. See section 771(18)(C) of the Act. Accordingly, there is a 
rebuttable presumption that all companies within the PRC are subject to 
government control and, thus, should be assessed a single antidumping 
duty rate. It is the Department's standard policy to assign all 
exporters of the merchandise subject to review in NME countries a 
single rate unless an exporter can affirmatively demonstrate an absence 
of government control, both in law (de jure) and in fact (de facto), 
with respect to exports. To establish whether a company is sufficiently 
independent to be entitled to a separate, company-specific rate, the 
Department analyzes each exporting entity in an NME country under the 
test established in the Final Determination of Sales at Less than Fair 
Value: Sparklers from the People's Republic of China, 56 FR 20588 (May 
6, 1991) (``Sparklers''), as amplified by the Notice of Final 
Determination of Sales at Less Than Fair Value: Silicon Carbide from 
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon 
Carbide'').
A. Absence of De Jure Control
    The Department considers the following de jure criteria in 
determining whether an individual company may be granted a separate 
rate: (1) an absence of restrictive stipulations associated with an 
individual exporter's business and export licenses; (2) any legislative 
enactments decentralizing control of companies; and (3) other formal 
measures by the government decentralizing control of companies. See 
Sparklers, 56 FR at 20589.
    In this review, LXFI submitted a complete response to the separate 
rates section of the Department's NME questionnaire. The evidence 
submitted by LXFI includes government laws and regulations on corporate 
ownership, business licenses, and narrative information regarding the 
company's operations and selection of management. The evidence provided 
by LXFI supports a finding of a de jure absence of government control 
over its export activities. Thus, we believe that the evidence on the 
record supports a preliminary finding of an absence of de jure 
government control based on: (1) an absence of restrictive stipulations 
associated with the exporter's business license; (2) the legal 
authority on the record decentralizing control over the respondent; and 
(3) other formal measures by the government decentralizing control of 
companies.
B. Absence of De Facto Control
    The absence of de facto government control over exports is based on 
whether the respondent: (1) sets its own export prices independent of 
the government and other exporters; (2) retains the proceeds from its 
export sales and makes independent decisions regarding the disposition 
of profits or financing of losses; (3) has the authority to negotiate 
and sign contracts and other agreements; and (4) has autonomy from the 
government regarding the selection of management. See Silicon Carbide, 
59 FR at 22587; Sparklers, 56 FR at 20589; see also Notice of Final 
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from 
the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
    In this review, LXFI submitted evidence indicating an absence of de

[[Page 47272]]

facto government control over their export activities. Specifically, 
this evidence indicates that: (1) the company sets its own export 
prices independent of the government and without the approval of a 
government authority; (2) the company retains the proceeds from its 
sales and makes independent decisions regarding the disposition of 
profits or financing of losses; (3) the company has a general manager, 
branch manager or division manager with the authority to negotiate and 
bind the company in an agreement; (4) the general manager is selected 
by the board of directors or company employees, and the general manager 
appoints the deputy managers and the manager of each department. 
Therefore, the Department preliminarily finds that LXFI has established 
that it qualifies for a separate rate under the criteria established by 
Silicon Carbide and Sparklers.

New Shipper Review Bona Fide Analysis

    Consistent with the Department's practice, we investigated the bona 
fide nature of the sale made by LXFI for this NSR. In evaluating 
whether a single sale in a NSR is commercially reasonable, and 
therefore bona fide, the Department considers, inter alia, such factors 
as: (1) timing of the sale; (2) price and quantity; (3) the expenses 
arising from the transaction; (4) whether the goods were sold at a 
profit; and (5) whether the transaction was made on an arms-length 
basis. See Tianjin Tiancheng Pharmaceutical Co. v. the United States, 
366 F. Supp. 2d R46, 1250 (CIT 2005). Accordingly, the Department 
considers a number of factors in its bona fide analysis, ``all of which 
may be specific to the commercial realities surrounding an alleged sale 
of subject merchandise.'' See Hebei New Donghua Amino Acid Co. v. the 
United States, 374 F. Supp. 2d 1333, 1342 (CIT 2005). In examining 
LXFI's sale in relation to these factors, the Department observed no 
evidence that would indicate that this sale was not bona fide. 
Therefore, we preliminarily find that the new shipper sale by LXFI was 
made on a bona fide basis. See Memorandum to the File through Alex 
Villanueva, Program Manager, Office 9 from Alexis Polovina, Case 
Analyst, Office 9: Antidumping Duty New Shipper Review of Certain Non-
Frozen Apple Juice Concentrate from the People's Republic of China: 
Bona Fide Nature of the Sale Under Review for Lingbao Xinyuan Fruit 
Industry Co., Ltd. (``LXFI''), dated July 30, 2010.
    Based on our investigation into the bona fide nature of the sale, 
the questionnaire responses submitted by LXFI and the company's 
eligibility for a separate rate (see Separate Rates Determination 
section above), we preliminarily determine that LXFI has met the 
requirements to qualify as a new shipper during this POR. Therefore, 
for the purposes of these preliminary results of review, we are 
treating LXFI's sale of subject merchandise to the United States as an 
appropriate transaction for this NSR.

Surrogate Country

    When the Department is investigating imports from an NME country, 
section 773(c)(1) of the Act directs it to base normal value (``NV''), 
in most circumstances, on the NME producer's FOPs, valued in a 
surrogate market economy country or countries considered to be 
appropriate by the Department. In accordance with section 773(c)(4) of 
the Act, in valuing the FOPs, the Department shall utilize, to the 
extent possible, the prices or costs of FOPs in one or more market 
economy countries that are: (1) at a level of economic development 
comparable to that of the NME country; and (2) significant producers of 
comparable merchandise.
    The Department determined that India, Philippines, Indonesia, 
Thailand, Ukraine, and Peru are countries comparable to the PRC in 
terms of economic development.\1\ Once it has identified economically 
comparable countries, the Department's practice is to select an 
appropriate surrogate country from the list based on the availability 
and reliability of data from the countries. See Department Policy 
Bulletin No. 04.1: Non-Market Economy Surrogate Country Selection 
Process (March 1, 2004).
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    \1\ See Memorandum from Kelly Parkhill, Acting Director, Office 
of Policy, to Alex Villanueva, Program Manager, China/NME Group, 
Office 9: Request for a List of Surrogate Countries for the New 
Shipper Review of the Antidumping Duty Order on Certain Non-Frozen 
Apple Juice Concentrate (``Apple Juice'') from the People's Republic 
of China (``PRC''), dated February 16, 2010.
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    Absent world apple juice concentrate production data, the 
Department considered whether any country listed in the Surrogate 
Country List was a net-exporter (i.e., exports more apple juice 
concentrate than it imports) to identify producers of apple juice 
concentrate. We found that none of the countries listed in the 
Surrogate Country List were net-exporters of apple juice concentrate. 
Therefore, the Department considered other countries not listed in the 
Surrogate Country List and determined that Poland was a net-exporter of 
apple juice concentrate.
    In this proceeding, we received comments regarding surrogate 
country selection only from LXFI, which supports the selection of 
Poland. The record also contains surrogate value information from 
Poland for most inputs, including juice apples, the main input for 
producing apple juice concentrate. In addition, we have surrogate 
financial ratios from a Polish juice company. Of the countries that are 
significant producers of identical merchandise, the record contains 
reliable surrogate value information from Poland. Therefore, for these 
preliminary results, we have selected Poland as the surrogate country.
    In accordance with 19 CFR 351.301(c)(3)(ii), for the final results 
in an antidumping new shipper review, interested parties may submit 
publicly available information to value FOPs within 20 days after the 
date of publication of these preliminary results.

U.S. Price

    For LXFI's sale to the United States, we used the export price 
(``EP'') methodology, pursuant to section 772(a) of the Act, because 
the first sale to an unaffiliated purchaser was made prior to 
importation, and CEP was not otherwise warranted by the facts on the 
record. We calculated EP based on the price to unaffiliated purchasers 
in the United States.
    In accordance with section 772(c) of the Act, as appropriate, we 
deducted from the starting price to unaffiliated purchasers foreign 
inland freight and containerization. We have reviewed each of these 
services and expenses reported by LXFI and find that they were provided 
by an NME vendor or paid for using PRC currency. Thus, we based the 
deduction of these movement charges on surrogate values. See Memorandum 
to the File through Alex Villanueva, Program Manager, Office 9 from 
Alexis Polovina, Case Analyst, Office 9: Antidumping Duty New Shipper 
Review of Certain Non-Frozen Apple Juice Concentrate from the People's 
Republic of China: Surrogate Values for the Preliminary Results, dated 
July 30, 2010 (``Surrogate Value Memo'') for details regarding the 
surrogate values for movement expenses.

Normal Value

1. Methodology
    Section 773(c)(1)(B) of the Act provides that the Department shall 
determine the NV using a FOP methodology if the merchandise is exported 
from an NME country and the information does not permit the

[[Page 47273]]

calculation of NV using home-market prices, third-country prices, or 
constructed value under section 773(a) of the Act. The Department bases 
NV on the FOPs because the presence of government controls on various 
aspects of NMEs renders price comparisons and the calculation of 
production costs invalid under the Department's normal methodologies.
2. Factor Valuations
    In past cases, it has been the Department's practice to value 
various FOPs using import statistics of the primary selected surrogate 
country from World Trade Atlas (``WTA''), as published by Global Trade 
Information Services (``GTIS''). See Certain Preserved Mushrooms from 
the People's Republic of China: Preliminary Results of Antidumping Duty 
New Shipper Review, 74 FR 50946, 50950 (October 2, 2009). However, in 
October 2009, the Department learned that the data reported in the 
Global Trade Atlas (``GTA'') software, published by GTIS, is reported 
to the nearest digit and thus there is not a loss of data by rounding, 
as there is with the data reported by the WTA software. Consequently, 
the Department will now obtain import statistics from GTA for valuing 
various FOPs.
    Furthermore, in accordance with the OTCA 1988 legislative history, 
the Department continues to apply its long-standing practice of 
disregarding surrogate values if it has a reason to believe or suspect 
the source data may be subsidized.\2\ In this regard, the Department 
has previously found that it is appropriate to disregard such prices 
from India, Indonesia, South Korea and Thailand because we have 
determined that these countries maintain broadly available, non-
industry specific export subsidies.\3\ Based on the existence of these 
subsidy programs that were generally available to all exporters and 
producers in these countries at the time of the POR, the Department 
finds that it is reasonable to infer that all exporters from India, 
Indonesia, South Korea and Thailand may have benefitted from these 
subsidies.
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    \2\ Omnibus Trade and Competitiveness Act of 1988, Conf. Report 
to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd Sess. 
(1988) (``OTCA 1988'') at 590.
    \3\ See e.g., Expedited Sunset Review of the Countervailing Duty 
Order on Carbazole Violet Pigment 23 from India, 75 FR 13257 (March 
19, 2010) and accompanying Issues and Decision Memorandum at pages 
4-5; Expedited Sunset Review of the Countervailing Duty Order on 
Certain Cut-to-Length Carbon Quality Steel Plate from Indonesia, 70 
FR 45692 (August 8, 2005) and accompanying Issues and Decision 
Memorandum at page 4; See Corrosion-Resistant Carbon Steel Flat 
Products from the Republic of Korea: Final Results of Countervailing 
Duty Administrative Review, 74 FR 2512 (January 15, 2009) and 
accompanying Issues and Decision Memorandum at Comment 1, pages 17, 
19-20; See Certain Hot-Rolled Carbon Steel Flat Products from 
Thailand: Final Results of Countervailing Duty Determination, 66 FR 
50410 (October 3, 2001) and accompanying Issues and Decision 
Memorandum at Comment 1.
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    In accordance with section 773(c) of the Act, we calculated NV 
based on FOPs reported by LXFI during the POR. To calculate NV, we 
multiplied the reported per-unit factor-consumption rates by publicly 
available Polish surrogate values. In selecting the surrogate values, 
we considered the quality, specificity, and contemporaneity of the 
data. As appropriate, we adjusted input prices by including freight 
costs to make them delivered prices. Specifically, we added to Polish 
import surrogate values a surrogate freight cost using the shorter of 
the reported distance from the domestic supplier to the factory of 
production or the distance from the nearest seaport to the factory of 
production where appropriate. This adjustment is in accordance with the 
Court of Appeals for the Federal Circuit's decision in Sigma Corp. v. 
United States, 117 F. 3d 1401, 1407-1408 (Fed. Cir. 1997). We selected 
Poland as the surrogate country for the reasons explained above in the 
``Surrogate Country'' section. However, where we were unable to find 
Polish data to value particular FOPs, we valued these inputs using 
public information on the record from India. We valued inland freight, 
electricity, coal, water, and containerization using Indian surrogate 
values.
    Polish surrogate values were valued in USD and no conversion was 
needed. Indian surrogate values denominated in Rupees were converted to 
USD using the applicable average exchange rate based on exchange rate 
data from the Department's website. For further details regarding the 
surrogate values used for these preliminary results, see the Surrogate 
Value Memo.
    As a consequence of the CAFC's ruling in Dorbest II, the Department 
is no longer relying on the regression-based wage rate described in 19 
CFR 351.408(c)(3). The Department is continuing to evaluate options for 
determining labor values in light of the recent CAFC decision. For 
these preliminary results, we have calculated an hourly wage rate to 
use in valuing LXFI's reported labor input by averaging earnings and/or 
wages in countries that are economically comparable to the PRC and that 
are significant producers of comparable merchandise. See the Surrogate 
Value Memo at 5-9 and attachment 7, for further information on the 
calculation of the wage rate.
    The Department relied on data from the following countries to 
arrive at its wage rate in these preliminary results: Albania, Ecuador, 
Egypt, El Salvador, Fiji, Guatemala, Guyana, Honduras, India, 
Indonesia, Mongolia, Nicaragua, Paraguay, Peru, Philippines, Sri Lanka, 
Thailand, and Ukraine. The Department calculated a simple average of 
the wage rates from these 18 countries. This resulted in a wage rate 
derived from comparable economies that are also significant producers 
of the comparable merchandise, consistent with the CAFC's ruling in 
Dorbest II and the statutory requirements of section 773(c) of the Act.

Preliminary Results of the Review

    As a result of our review, we preliminarily find that the following 
margins exist for the period June 1, 2009, through January 20, 2010:

               Certain Non-Frozen Apple juice from the PRC
------------------------------------------------------------------------
                                                       Weighted-Average
                Manufacturer/Exporter                  Margin (Percent)
------------------------------------------------------------------------
LXFI................................................                0.00
------------------------------------------------------------------------

Disclosure

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

Comments

    In accordance with 19 CFR 351.301(c)(3)(ii), for the final results 
of this administrative review, interested parties may submit publicly 
available information to value FOPs within 20 days after the date of 
publication of these preliminary results. Interested parties must 
provide the Department with supporting documentation for the publicly 
available information to value each FOP. Additionally, in accordance 
with 19 CFR 351.301(c)(1), for the final results of this NSR, 
interested parties may submit factual information to rebut, clarify, or 
correct factual information submitted by an interested party less than 
ten days before, on, or after, the applicable deadline for submission 
of such factual information. However, the Department notes that 19 CFR 
351.301(c)(1) permits new information only insofar as it rebuts, 
clarifies, or

[[Page 47274]]

corrects information recently placed on the record.\4\
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    \4\ See Glycine from the People's Republic of China: Final 
Results of Antidumping Duty Administrative Review and Final 
Rescission, in Part 72 FR 58809 (October 17, 2007), and accompanying 
Issues and Decision Memorandum at Comment 2.
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    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 this NSR. See 19 CFR 351.309(c)(ii). Rebuttal 
briefs and rebuttals to written comments, limited to issues raised in 
such briefs or comments, may be filed no later than 5 days after the 
deadline for submitting the case briefs. See 19 CFR 351.309(d). The 
Department requests that interested parties provide an executive 
summary of each argument contained within the case briefs and rebuttal 
briefs.
    Any interested party may request a hearing within 30 days of 
publication of these preliminary results. See 19 CFR 351.310(c). 
Requests should contain the following information: (1) The party's 
name, address, and telephone number; (2) the number of participants; 
and (3) a list of the issues to be discussed. Oral presentations will 
be limited to issues raised in the briefs. If we receive a request for 
a hearing, we plan to hold the hearing seven days after the deadline 
for submission of the rebuttal briefs at the U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 
20230.
    The Department intends to issue the final results of this NSR, 
which will include the results of its analysis raised in any such 
comments, within 90 days of publication of these preliminary results, 
pursuant to section 751(a)(2)(B)(iv) of the Act.

Assessment Rates

    Upon completion of the final results, pursuant to 19 CFR 
351.212(b), the Department will determine, and CBP shall assess, 
antidumping duties on all appropriate entries on a weighted-average 
basis. The Department intends to issue assessment instructions to CBP 
15 days after the date of publication of the final results of review. 
If these preliminary results are adopted in our final results of 
review, the Department shall determine, and CBP shall assess, 
antidumping duties on all appropriate entries. Pursuant to 19 CFR 
351.212(b)(1), we will calculate importer-specific (or customer) per-
unit duty assessment rates. We will instruct CBP to assess antidumping 
duties on all appropriate entries covered by this review if any 
importer-specific assessment rate calculated in the final results of 
this NSR is above de minimis.

Cash-Deposit Requirements

    The following cash deposit requirements, when imposed, will be 
effective upon publication of the final results of this NSR for all 
shipments of subject merchandise from LXFI entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) for subject 
merchandise produced and exported by LXFI, the cash deposit rate will 
be the rate that is established in the final results of this NSR; (2) 
for subject merchandise exported by LXFI but not manufactured by LXFI, 
the cash deposit rate will continue to be the PRC-wide rate (i.e., 
51.74 percent); and (3) for subject merchandise manufactured by LXFI, 
but exported by any other party, the cash deposit rate will be the rate 
applicable to the exporter. If the cash deposit rate calculated in the 
final results is zero or de minimis, no cash deposit will be required 
for those entries of subject merchandise both produced and exported by 
LXFI. These cash deposit requirements, when imposed, shall remain in 
effect until further notice.

Notification to Importers

    This notice 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 POR. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    We are issuing and publishing this determination in accordance with 
sections 751(a)(2)(B) and 777(i) of the Act, and 19 CFR 351.214(h) and 
351.221(b)(4).

    Dated: July 30, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-19286 Filed 8-4-10; 8:45 am]
BILLING CODE 3510-DS-S