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Code · REGISTER · 2005-01-04 · Import Administration, International Trade Administration, Department of Commerce · Notices

Notices. Notice of issuance of an incidental harassment authorization

12,877 words·~59 min read·/register/2005/01/04/05-97·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 3410-11-M DEPARTMENT OF COMMERCE International Trade Administration [A-583-008] Correction: Notice of Final Results of Antidumping Duty Administrative Review: Circular Welded Carbon Steel Pipes and Tubes From Taiwan AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: September 30, 2004 FOR FURTHER INFORMATION CONTACT: Angela Strom at
(202)482-2704, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. SUPPLEMENTARY INFORMATION: On September 30, 2004, the Department of Commerce published the final results of the administrative review of the antidumping order covering circular welded carbon steel pipes and tubes from Taiwan. *See Circular Welded Carbon Steel Pipes and Tubes From Taiwan: Final Results of Antidumping Duty Administrative Review* , 69 FR 58390 ( *Final Results* ). The version published in the **Federal Register** contained a typographical error which is being identified and corrected by this Correction notice. During the publication process, the title of one of the sections- “Assessment” -was transposed into the chart in the previous section that identified the respondent and the final weighted-average margin. The necessary correction is as follows: Final Results of Review We determine the following dumping margin exists for the period May 1, 2002, to April 30, 2003. Producer and Exporter Weighted-Average Margin (percentage) Yieh Hsing 1.61 Assessment The Department shall determine .... (See *Final Results* at 58391 for the balance of this section).” This notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: December 28, 2004. Barbara E. Tillman, Acting Assistant Secretary for Import Administration. [FR Doc. E4-3924 Filed 1-3-05; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-588-865] Notice of Final Determination of Sales at Less Than Fair Value: Outboard Engines From Japan AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: January 4, 2005. FOR FURTHER INFORMATION CONTACT: James Kemp or Shane Subler at
(202)482-5346 or
(202)482-0189, respectively; AD/CVD Operations, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue, NW., Washington, DC 20230. Final Determination We determine that outboard engines from Japan are being sold, or are likely to be sold, in the United States at less than fair value (LTFV), as provided in section 735 of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at LTFV are shown in the *Continuation of Suspension of Liquidation* section of this notice. Case History The preliminary determination in this investigation was published on August 12, 2004. *See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Outboard Engines from Japan, 69 FR 49863 (August 12, 2004) (Preliminary Determination).* Since the publication of the preliminary determination, the following events have occurred: In September and October 2004, the Department of Commerce (the Department) verified the questionnaire responses submitted by Yamaha Motor Company, Ltd., Yamaha Marine Company, Ltd., and Yamaha Motor Corporation, U.S.A. (collectively Yamaha). The sales and cost verification reports were issued on November 1, 2004. On November 10, 2004, we received case briefs from
(1)the petitioner; 1
(2)BRP U.S. Inc. and Bombardier Recreational Products Inc. (collectively, BRP), a domestic interested party;
(3)American Honda Motor Co., Inc., and Honda Motor Co., Ltd., American Suzuki Motor Corporation and Suzuki Motor Corporation, Tohatsu Corporation, Tohatsu Marine Corporation, and Tohatsu America Corporation, Nissan Marine Co., Ltd. (collectively, the Other Japanese Parties); and
(4)Yamaha. 2 On November 17, 2004, we received rebuttal briefs from the petitioner, BRP, and Yamaha. Since no request was made for a public hearing, a public hearing was not held. 1 The petitioner in this investigation is Mercury Marine, a division of Brunswick Corporation. 2 On December 6, 2004, we rejected the case briefs submitted by Yamaha and the Other Japanese Parties because they contained new factual information. After making the revisions requested by the Department, Yamaha and the Other Japanese Parties resubmitted the briefs on December 7, 2004. Scope of Investigation For the purpose of this investigation, the products covered are outboard engines (also referred to as outboard motors), whether assembled or unassembled; and powerheads, whether assembled or unassembled. The subject engines are gasoline-powered spark-ignition, internal combustion engines designed and used principally for marine propulsion for all types of light recreational and commercial boats, including, but not limited to, canoes, rafts, inflatable, sail and pontoon boats. Specifically included in this scope are two-stroke, direct injection two-stroke, and four-stroke outboard engines. Outboard engines are comprised of
(1)a powerhead assembly, or an internal combustion engine,
(2)a midsection assembly, by which the outboard engine is attached to the vehicle it propels, and
(3)a gearcase assembly, which typically includes a transmission and propeller shaft, and may or may not include a propeller. To the extent that these components are imported together, but unassembled, they collectively are covered within the scope of this investigation. An “unassembled” outboard engine consists of a powerhead as defined below, and any other parts imported with the powerhead that may be used in the assembly of an outboard engine. Powerheads are comprised of, at a minimum,
(1)a cylinder block,
(2)pistons,
(3)connecting rods, and
(4)a crankshaft. Importation of these four components together, whether assembled or unassembled, and whether or not accompanied by additional components, constitute a powerhead for purposes of this investigation. An “unassembled” powerhead consists of, at a minimum, the four powerhead components listed above, and any other parts imported with it that may be used in the assembly of a powerhead. The scope does not include parts or components (other than powerheads) imported separately. The outboard engines and powerheads subject to this investigation are currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings 8407.21.0040 and 8407.21.0080. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive. Excluded from the scope of the investigation are five specific models of powerheads. The specific characteristics for each excluded powehead are described below. 1. 75 Horsepower Carbureted Powerhead: the engine type is four-stroke inline four cylinder internal combustion engine; the valve train consists of sixteen valves and twin cam with timing belt and tensioner; the crankcase is of high-pressure die-cast aluminum; the block is of high-pressure die-cast aluminum with iron cylinder liners; displacement 1.596 liters; bore and stroke 79 mm x 81.4 mm; compression ratio 9.6: 1; fuel supplied by four individual carburetors fitted to left side (as viewed from rear) of engine; power output 55.9 kW at 5000 RPM; fuel consumption 28.0 L/H Max at 6000 RPM; maximum height 539 mm; maximum width 435 mm; maximum length 646 mm; and weight
(dry)180.5 lbs./81.6 kg. 2. 90 Horsepower Carbureted Powerhead: the engine type is four-stroke inline four cylinder internal combustion engine; the valve train consists of sixteen valves and twin cam with timing belt and tensioner; the crankcase is of high-pressure die-cast aluminum; the block is of high-pressure die-cast aluminum with iron cylinder liners; displacement 1.596 liters; bore and stroke 79 mm x 81.4 mm; compression ratio 9.6: 1; fuel supplied by four individual carburetors fitted to left side (as viewed from rear) of engine; power output 67.1 kW at 5500 RPM; fuel consumption 31.5 L/H Max at 6000 RPM; maximum height 539 mm; maximum width 435 mm; maximum length 646 mm; and weight
(dry)180.5 lbs./81.6 kg. 3. 75 Horsepower Electronic Fuel Injection Powerhead: the engine type is four-stroke inline four cylinder internal combustion engine; the valve train consists of sixteen valves and twin cam with timing belt and tensioner; the crankcase is of high-pressure die-cast aluminum; the block is of high-pressure die-cast aluminum with iron cylinder liners; displacement 1.596 liters; bore and stroke 79 mm x 81.4 mm; compression ratio 9.6: 1; fuel supplied by single throttle body multi-point electronic fuel injection; power output 55.9 kW at 5000 RPM; fuel consumption 29.0 L/H Max at 6000 RPM; maximum height 539 mm; maximum width 435 mm; maximum length 646 mm; and weight
(dry)183.0 lbs./83.0 kg. 4. 90 Horsepower Electronic Fuel Injection Powerhead: the engine type is four-stroke inline four cylinder internal combustion engine; the valve train consists of sixteen valves and twin cam with timing belt and tensioner; the crankcase is of high-pressure die-cast aluminum; the block is of high-pressure die-cast aluminum with iron cylinder liners; displacement 1.596 liters; bore and stroke 79 mm x 81.4 mm; compression ratio 9.6: 1; fuel supplied by single throttle body multi-point electronic fuel injection; power output 67.1 kW at 5500 RPM; fuel consumption 33.0 L/H Max at 6000 RPM; maximum height 539 mm; maximum width 435 mm; maximum length 646 mm; and weight
(dry)183.0 lbs./83.0 kg. 5. 115 Horsepower Electronic Fuel Injection Powerhead: the engine type is four-stroke inline four cylinder internal combustion engine; the valve train consists of sixteen valves and twin cam with timing belt and tensioner; the crankcase is of high-pressure die-cast aluminum; the block is of high-pressure die-cast aluminum with iron cylinder liners; displacement 1.741 liters; bore and stroke 79 mm x 89 mm; compression ratio 9.7: 1; fuel supplied by multi-point electronic fuel injection with four individual throttle bodies; power output 85.8 kW at 5500 RPM; fuel consumption 38.0 L/H Max at 5500 RPM; maximum height 539 mm; maximum width 444 mm; maximum length 637 mm; and weight
(dry)189.0 lbs./85.7 kg. Period of Investigation The period of investigation
(POI)is January 1, 2003, through December 31, 2003. This period corresponds to the four most recent fiscal quarters prior to the month of filing of the petition ( *i.e.,* January 2004) involving imports from a market economy, and is in accordance with our regulations. *See* 19 CFR 351.204(b)(1). Scope Issues Outboard Engines Under 25 Horsepower In the preliminary determination, we analyzed parties' comments regarding the appropriateness of including engines of 25 horsepower or less in the scope of investigation and determined that the engines were within the scope. *See Preliminary Determination* at 49864. For the final determination, we affirm our decision in the preliminary determination and continue to find that these engines are included in the scope of the investigation. No parties commented on this issue for the final determination. Powerheads Imported as Replacement Parts In the preliminary determination, we found that engines imported for the purpose of repairing outboard engines previously sold are properly included in the scope of the investigation. *See Preliminary Determination* at 49865. The Other Japanese Parties submitted a case brief arguing that the Department should exclude these engines from the scope for the final determination. The petitioner and BRP submitted rebuttal briefs on this issue. After analyzing the parties' arguments, we continue to find that engines imported for the purpose of repair are properly included in the scope of the investigation for the reasons outlined at Comment 2 of the *Memorandum from Barbara E. Tillman, Acting Deputy Assistant Secretary, to James J. Jochum, Assistant Secretary for Import Administration, RE: Issues and Decision Memorandum for the Final Determination of the Investigation of Outboard Engines from Japan (Decision Memorandum),* dated December 27, 2004. Treatment of Powerheads as a Separate Class or Kind In the preliminary determination, we found that completed engines and powerheads constituted the same class or kind of merchandise. *See Preliminary Determination* at 49865. Yamaha and the Other Japanese Parties submitted case briefs arguing that the Department should find that powerheads are a separate class or kind from completed outboard engines. The petitioner and BRP submitted a rebuttal brief on this issue. After analyzing the parties' arguments, we continue to find that completed engines and powerheads constitute the same class or kind of merchandise for the reasons outlined at Comment 1 of the *Decision Memorandum.* Amendment to the Scope of Investigation In a separate November 17, 2004, submission, the petitioner requested that the Department exclude certain models of powerheads from the scope of the investigation. On November 23, 2004, Yamaha submitted comments on the petitioner's request. 3 The petitioner submitted a response to these comments on November 30, 2004. After analyzing the parties' arguments, we accepted the petitioner's proposed scope amendment to exclude certain powerhead models for the reasons outlined at Comment 17 of the *Decision Memorandum.* For a description of the excluded powerheads, see the *Scope of Investigation* section of this notice. 3 On December 6, 2004, we rejected Yamaha's comments because they contained new factual information submitted after the Department's regulatory deadline. The date of Yamaha's revised submission is December 7, 2004. Verification As provided in section 782(i) of the Act, we conducted verification of the cost and sales information submitted by Yamaha. We used standard verification procedures including examination of relevant accounting and production records, and original source documents provided by the respondent. Analysis of Comments Received All issues raised in the case and rebuttal briefs submitted by parties to this proceeding are listed in the appendix to this notice and addressed in the *Decision Memorandum* hereby adopted by this notice. The *Decision Memorandum* is on file in room B-099 of the main Department building. In addition, a complete version of the *Decision Memorandum* can be accessed directly on the World Wide Web at *http://www.ita.doc.gov/frn.* The paper and electronic versions of the *Decision Memorandum* are identical in content. Changes Since the Preliminary Determination Based on our findings at verification and our analysis of comments received, we have made adjustments to the preliminary determination calculation methodologies in calculating the final dumping margin for Yamaha. These adjustments are discussed in the *Decision Memorandum and the Memorandum from James Kemp and Shane Subler, International Trade Compliance Analysts, through Constance Handley, Program Manager, RE: Final Determination Analysis Memorandum for Yamaha Motor Company, Ltd., Yamaha Marine Company, Ltd., and Yamaha Motor Corporation,* USA, dated December 27, 2004. Continuation of Suspension of Liquidation In accordance with section 735(c)(1)(B) of the Act, we are directing U.S. Customs and Border Protection
(CBP)to continue to suspend liquidation of all entries of outboard engines exported from Japan, that are entered, or withdrawn from warehouse, for consumption on or after the date of the preliminary determination. CBP shall continue to require a cash deposit or the posting of a bond based on the estimated weighted-average dumping margins shown below. The suspension of liquidation instructions will remain in effect until further notice. We determine that the following weighted-average dumping margin exists for Japan: Manufacturer/exporter Margin (percent) Yamaha 18.98 All others 18.98 International Trade Commission Notification In accordance with section 735(d) of the Act, we have notified the International Trade Commission
(ITC)of our determination. The ITC will determine, within 45 days, whether imports of subject merchandise from Japan are causing material injury, or threaten material injury, to an industry in the United States. If the ITC determines that material injury or threat of material injury does not exist, this proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP officials to assess antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse for consumption on or after the effective date of the suspension of liquidation. This notice also serves as a reminder to parties subject to administrative protective order
(APO)of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation. This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act. Dated: December 27, 2004. Joseph A. Spetrini, Acting Assistant Secretary for Import Administration. Appendix Issues Covered in Decision Memorandum 1. Class or Kind. 2. Powerheads Imported for Repair Purposes. 3. Treatment of Non-Dumped Sales. 4. Level of Trade
(LOT)Adjustment for Yamaha's Sales to Original Equipment Manufacturer
(OEM)Customers. 5. Surrogate Prices for Yamaha's CEP Sales to Its Affiliated Boat Builders. 6. Per-Unit Cap on the CEP Offset. 7. Home Market Levels of Trade. 8. Adjustments to U.S. Price. 9. Reported Home Market Payment Dates. 10. Certain Home Market Sales within the Ordinary Course of Trade. 11. Credit Expenses for Export Price Sales. 12. Reporting of the REBATE4U Field. 13. Minor Corrections Submitted at Verification. 14. Application of LOT Adjustment. 15. Home Market Consignment Sales. 16. Packing Costs. 17. Amendment to Scope. 18. Yamaha's Standard Cost System. 19. Certain Excluded Costs. 20. Parent Company G&A Expenses. 21. Affiliated Supplier Inputs. [FR Doc. E4-3925 Filed 1-3-05; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE International Trade Administration [A-570-890] Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture From the People's Republic of China AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: January 4, 2005. FOR FURTHER INFORMATION CONTACT: Aishe Allen, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone:
(202)482-0172. Amendment to Final Determination In accordance with sections 735(d) and 777(i)(1) of the Tariff Act of 1930, as amended, (“the Act”), on November 17, 2004, the Department of Commerce (“the Department”) published the *Notice of Final Determination of Sales at Less Than Fair Value in the investigation of wooden bedroom furniture from the People's Republic of China (“PRC* ”) (“ *Final Determination* ”). *See Final Determination* and corresponding “Issues and Decision Memorandum” dated November 8, 2004. Between November 12, 2004, and November 22, 2004, the following parties filed timely allegations that the Department made various ministerial errors in the Final Determination: Superwood Company Limited; Shanghai SMEC Corporation; follows: Dongguan Chunsan Wood Products Co., Ltd.; Trendex Industries Limited; the American Furniture Manufacturers Committee for Legal Trade and its individual members and the Cabinet Makers, Millmen, and Industrial Carpenters Local 721, UBC Southern Council of Industrial Worker's Local Union 2305, United Steel Workers of American Local 193U, Carpenters Industrial Union Local 2093, and Teamsters, Chauffeurs, Warehousemen and Helper Local 991 (collectively “Petitioners”); Rui Feng Woodwork Co., Ltd., Rui Feng Lumber Development Co., Ltd., and Dorbest Limited (“Dorbest”); Lacquer Craft Mfg. Co., Ltd. (“Lacquer Craft”); Dongguan Lung Dong Furniture Co., Ltd., and Dongguan Dong He Furniture Co., Ltd., (“Lung Dong”); and Shing Mark Enterprise Co., Ltd., Carven Industries Limited (BVI), Carven Industries Limited (HK), Dongguan Zhenxin Furniture Co., Ltd., and Dongguan Yongpeng Furniture Co., Ltd. (“Shing Mark”); Hongyu Furniture (Shenzhen) Limited (“Hongyu”); American Signature, Inc., and Value City Furniture (“ASI/VCF”) and Pulaski Furniture Corp. (“Pulaski”) with respect to ministerial errors in the calculation of the margin for their supplier, Dorbest. On November 29, 2004, Petitioners filed comments rebutting the interested parties' ministerial-error allegations. On the same day, Lacquer Craft, Lung Dong, Shing Mark, and Starcorp Furniture (Shanghai) Co., Ltd., Orin Furniture (Shanghai) Co., Ltd., and Shanghai Starcorp Furniture Co., Ltd. (“Starcorp”), filed comments rebutting the Petitioners ministerial-error allegations. Further, on November 29, 2004, Petitioners submitted a letter requesting the Department to strike from the record Exhibit 12 and any references to this Exhibit in Shing Mark's November 22, 2004, ministerial-error submission because it contains new untimely factual information. On November 30, 2004, Shing Mark filed a letter stating the Department should reject Petitioners' request to strike certain information because the information is not new or untimely. Also, on November 30, 2004, Petitioners filed a letter requesting the Department to strike from the record Starcorp's November 29, 2004, submission as untimely filed ministerial- error comments. On December 1, 2004, Starcorp filed a letter stating that its letter was both timely and appropriate. On December 6, 2004, Petitioners filed a letter requesting the Department to strike from the record portions of Lung Dong's November 29, 2004, rebuttal comments because it allegedly contained untimely raised ministerial-error allegations. On December 10, 2004, we returned Lung Dong's and Starcorp's November 29, 2004, submissions because they contained untimely ministerial-error allegations. Lung Dong submitted an amended version of its November 29, 2004, submission on December 14, 2004. After analyzing all interested parties comments and rebuttal comments, we have determined, in accordance with 19 CFR 351.224(e), that we made ministerial errors in the calculations we performed for the final determination. For a detailed discussion of these ministerial errors, and our analysis, see the “ *Amended Issues and Decision Memorandum* ” dated December 27, 2004, and the company specific amended final determination analysis memoranda dated December 27, 2004. Additionally, in the *Final Determination,* we determined that several companies qualified for separate-rate status. The margin we calculated in the *Final Determination* for these companies was 8.64 percent. Because the rates of the selected mandatory respondents have changed since the *Final Determination,* we have recalculated the rate for the non-mandatory respondents which the Department determined to be entitled to separate rate. The rate for Section A respondents is now 6.65%. *See* Memorandum to the File from Eugene Degnan, *Amended Calculation of Section A Rate,* dated December 27, 2004. Therefore, in accordance with 19 CFR 351.224(e), we are amending the final determination of sales at LTFV in the antidumping duty investigation of wooden bedroom furniture from the PRC. The revised weighted-average dumping margins are in the “Antidumping Duty Order” section, below. Antidumping Duty Order On December 23, 2004, in accordance with section 735(d) of the Act, the International Trade Commission (“ITC”) notified the Department of its final determination pursuant to section 735(b)(1)(A)(i) of the Act that an industry in the United States is materially injured by reason of less-than-fair-value imports of subject merchandise from the PRC. Therefore, in accordance with section 736(a)(1) of the Act, the Department will direct U.S. Customs and Border Protection (“CBP”) to assess, upon further instruction by the Department, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price of the merchandise for all relevant entries of wooden bedroom furniture from the PRC. With the exception of wooden bedroom furniture produced and exported by Markor International Furniture (Tianjin) Manufacturing Company, Ltd. (a company excluded from this order), these antidumping duties will be assessed on all unliquidated entries of wooden bedroom furniture from the PRC entered, or withdrawn from the warehouse, for consumption on or after June 24, 2004, the date on which the Department published its *Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Wooden Bedroom Furniture from the People's Republic of China,* 69 FR 35312 (June 24, 2004) (“ *Preliminary Determination* ”). Section 733(d) of the Act states that instructions issued pursuant to an affirmative preliminary determination may not remain in effect for more than four months except where exporters representing a significant proportion of exports of the subject merchandise request the Department to extend that four-month period to no more than six months. At the request of exporters that account for a significant proportion of wooden bedroom furniture, we extended the four-month period to no more than six months. *See Preliminary Determination.* In this investigation, the six-month period beginning on the date of the publication of the preliminary determination ends on December 21, 2004. Furthermore, section 737 of the Act states that definitive duties are to begin on the date of publication of the ITC's final injury determination. Therefore, in accordance with section 733(d) of the Act and our practice, we will instruct CBP to terminate the suspension of liquidation and to liquidate, without regard to antidumping duties, unliquidated entries of wooden bedroom furniture from the PRC entered, or withdrawn from warehouse, for consumption on or after December 21, 2004, and before the date of publication of the ITC 's final injury determination in the **Federal Register** . Suspension of liquidation will continue on or after this date. On or after the date of publication of the ITC's notice of final determination in the **Federal Register,** CBP will require, at the same time as importers would normally deposit estimated duties on this merchandise, a cash deposit equal to the estimated weighted-average antidumping duty margins as listed below. The “PRC-wide” rate applies to all exporters of subject merchandise not listed specifically. The weighted-average dumping margins are as follows: Company Weighted- average margin (percent) Dongguan Lung Dong Furniture Co., Ltd., or Dongguan Dong He Furniture Co., Ltd 2.32 Rui Feng Woodwork Co., Ltd., or Rui Feng Lumber Development Co., Ltd. or Dorbest Limited 7.87 Lacquer Craft Mfg. Co., Ltd 2.66 Markor International Furniture (Tianjin) Manufacturing Company, Ltd 0.83 Shing Mark Enterprise Co., Ltd., or Carven Industries Limited (BVI), or Carven I Industries Limited (HK), or Dongguan Zhenxin Furniture Co., Ltd., or Dongguan Yongpeng Furniture Co., Ltd 4.96 Starcorp Furniture (Shanghai) Co., Ltd., or Orin Furniture (Shanghai) Co., Ltd., or Shanghai Starcorp Furniture Co., Ltd 15.78 Alexandre International Corp., or Southern Art Development Ltd., or Alexandre Furniture (Shenzhen) Co., Ltd., or Southern Art Furniture Factory 6.65 Art Heritage International, Ltd., or Super Art Furniture Co., Ltd., or Artwork Metal & Plastic Co., Ltd., or Jibson Industries Ltd., or Always Loyal International 6.65 Billy Wood Industrial (Dong Guan) Co., Ltd., or Great Union Industrial (Dongguan) Co., Ltd., or Time Faith Ltd 6.65 Changshu HTC Import & Export Co., Ltd 6.65 Cheng Meng Furniture
(PTE)Ltd., or China Cheng Meng Decoration & Furniture (Suzhou) Co., Ltd 6.65 Chuan Fa Furniture Factory 6.65 Classic Furniture Global Co., Ltd 6.65 Clearwise Co., Ltd 6.65 COE Ltd 6.65 Dalian Guangming Furniture Co., Ltd 6.65 Dalian Huafeng Furniture Co., Ltd 6.65 Dongguan Cambridge Furniture Co., or Glory Oceanic Co., Ltd 6.65 Dongguan Chunsan Wood Products Co., Ltd., or Trendex Industries Ltd 6.65 Dongguan Creation Furniture Co., Ltd., or Creation Industries Co., Ltd 6.65 Dongguan Grand Style Furniture, or Hong Kong Da Zhi Furniture Co., Ltd 6.65 Dongguan Great Reputation Furniture Co., Ltd 6.65 Dongguan Hero Way Woodwork Co., Ltd., or Dongguan Da Zhong Woodwork Co., Ltd., or Hero Way Enterprises Ltd., or Well Earth International Ltd 6.65 Dongguan Hung Sheng Artware Products Co., Ltd., or Coronal Enterprise Co., Ltd 6.65 Dongguan Kin Feng Furniture Co., Ltd 6.65 Dongguan Kingstone Furniture Co., Ltd., or Kingstone Furniture Co., Ltd 6.65 Dongguan Liaobushangdun Huada Furniture Factory, or Great Rich
(HK)Enterprise Co. Ltd 6.65 Dongguan Qingxi Xinyi Craft Furniture Factory (Joyce Art Factory) 6.65 Dongguan Singways Furniture Co., Ltd 6.65 Dongguan Sunrise Furniture Co., or Taicang Sunrise Wood Industry Co., Ltd., or Shanghai Sunrise Furniture Co., Ltd., or Fairmont Designs 6.65 Dongying Huanghekou Furniture Industry Co., Ltd 6.65 Dream Rooms Furniture (Shanghai) Co., Ltd 6.65 Eurosa (Kunshan) Co., Ltd., or Eurosa Furniture Co.,
(PTE)Ltd 6.65 Ever Spring Furniture Co. Ltd., or S.Y.C. Family Enterprise Co., Ltd 6.65 Fine Furniture (Shanghai) Ltd 6.65 Foshan Guanqiu Furniture Co., Ltd 6.65 Fujian Lianfu Forestry Co., Ltd., or Fujian Wonder Pacific Inc 6.65 Gaomi Yatai Wooden Ware Co., Ltd., or Team Prospect International Ltd., or Money Gain International Co 6.65 Garri Furniture (Dong Guan) Co., Ltd., or Molabile International, Inc., or Weei Geo Enterprise Co., Ltd 6.65 Green River Wood (Dongguan) Ltd 6.65 Guangming Group Wumahe Furniture Co., Ltd 6.65 Hainan Jong Bao Lumber Co., Ltd., or Jibbon Enterprise Co., Ltd 6.65 Hamilton & Spill Ltd 6.65 Hang Hai Woodcraft's Art Factory 6.65 Hualing Furniture (China) Co., Ltd., or Tony House Manufacture (China) Co., Ltd., or Buysell Investments Ltd., or Tony House Industries Co., Ltd 6.65 Jardine Enterprise, Ltd 6.65 Jiangmen Kinwai Furniture Decoration Co., Ltd 6.65 Jiangmen Kinwai International Furniture Co., Ltd 6.65 Jiangsu Weifu Group Fullhouse Furniture Manufacturing. Corp 6.65 Jiangsu Yuexing Furniture Group Co., Ltd 6.65 Jiedong Lehouse Furniture Co., Ltd 6.65 King's Way Furniture Industries Co., Ltd., or Kingsyear Ltd 6.65 Kuan Lin Furniture (Dong Guan) Co., Ltd., or Kuan Lin Furniture Factory, or Kuan Lin Furniture Co., Ltd 6.65 Kunshan Lee Wood Product Co., Ltd 6.65 Kunshan Summit Furniture Co., Ltd 6.65 Langfang Tiancheng Furniture Co., Ltd 6.65 Leefu Wood (Dongguan) Co., Ltd., or King Rich International, Ltd 6.65 Link Silver Ltd. (V.I.B.), or Forward Win Enterprises Co. Ltd., or Dongguan Haoshun Furniture Ltd 6.65 Locke Furniture Factory, or Kai Chan Furniture Co., Ltd., or Kai Chan (Hong Kong) Enterprise Ltd., or Taiwan Kai Chan Co., Ltd 6.65 Longrange Furniture Co., Ltd 6.65 Nanhai Baiyi Woodwork Co., Ltd 6.65 Nanhai Jiantai Woodwork Co., Ltd., or Fortune Glory Industrial Ltd. (H.K. Ltd.) 6.65 Nantong Dongfang Orient Furniture Co., Ltd 6.65 Nantong Yushi Furniture Co., Ltd 6.65 Nathan International Ltd., or Nathan Rattan Factory 6.65 Orient International Holding Shanghai Foreign Trade Co., Ltd 6.65 Passwell Corporation, or Pleasant Wave Ltd 6.65 Perfect Line Furniture Co., Ltd 6.65 Prime Wood International Co., Ltd., or Prime Best International Co., Ltd., or Prime Best Factory, or Liang Huang (Jiaxing) Enterprise Co., Ltd 6.65 PuTian JingGong Furniture Co., Ltd 6.65 Qingdao Liangmu Co., Ltd 6.65 Restonic (Dongguan) Furniture Ltd., or Restonic Far East (Samoa) Ltd 6.65 RiZhao SanMu Woodworking Co., Ltd 6.65 Season Furniture Manufacturing Co., or Season Industrial Development Co 6.65 Sen Yeong International Co., Ltd., or Sheh Hau International Trading Ltd 6.65 Shanghai Jian Pu Export & Import Co., Ltd 6.65 Shanghai Maoji Imp and Exp Co., Ltd 6.65 Sheng Jing Wood Products (Beijing) Co., Ltd., or Telstar Enterprises Ltd 6.65 Shenyang Shining Dongxing Furniture Co., Ltd 6.65 Shenzhen Forest Furniture Co., Ltd 6.65 Shenzhen Jiafa High Grade Furniture Co., Ltd., or Golden Lion International Trading Ltd 6.65 Shenzhen New Fudu Furniture Co., Ltd 6.65 Shenzhen Wonderful Furniture Co., Ltd 6.65 Shenzhen Xiande Furniture Factory 6.65 Shenzhen Xingli Furniture Co., Ltd 6.65 Shun Feng Furniture Co., Ltd 6.65 Songgang Jasonwood Furniture Factory, or Jasonwood Industrial Co., Ltd. S.A 6.65 Starwood Furniture Manufacturing Co. Ltd 6.65 Starwood Industries Ltd 6.65 Strongson Furniture (Shenzhen) Co., Ltd., or Strongson Furniture Co., Ltd., or Strongson
(HK)Co 6.65 Sunforce Furniture (Hui-Yang) Co., Ltd., or Sun Fung Wooden Factory, or Sun Fung Co., or Shin Feng Furniture Co., Ltd., or Stupendous International Co., Ltd 6.65 Superwood Co., Ltd., or Lianjiang Zongyu Art Products Co., Ltd 6.65 Tarzan Furniture Industries Ltd., or Samso Industries Ltd 6.65 Teamway Furniture (Dong Guan) Ltd., or Brittomart Inc 6.65 Techniwood Industries Ltd., or Ningbo Furniture Industries Limited, or Ningbo Hengrun Furniture Co., Ltd 6.65 Tianjin Fortune Furniture Co., Ltd 6.65 Tianjin Master Home Furniture 6.65 Tianjin Phu Shing Woodwork Enterprise Co., Ltd 6.65 Tianjin Sande Fairwood Furniture Co., Ltd 6.65 Tube-Smith Enterprise (ZhangZhou) Co., Ltd., or Tube-Smith Enterprise (Haimen) Co., Ltd., or Billonworth Enterprises Ltd 6.65 Union Friend International Trade Co., Ltd 6.65 U-Rich Furniture (Zhangzhou) Co., Ltd., or U-Rich Furniture Ltd 6.65 Wanhengtong Nueevder (Furniture) Manufacture Co., Ltd., or Dongguan Wanengtong Industry Co., Ltd 6.65 Woodworth Wooden Industries (Dong Guan) Co., Ltd 6.65 Xiamen Yongquan Sci-Tech Development Co., Ltd 6.65 Jiangsu XiangSheng Bedtime Furniture Co., Ltd 6.65 Xingli Arts & Crafts Factory of Yangchun 6.65 Yangchun Hengli Co. Ltd 6.65 Yeh Brothers World Trade, Inc 6.65 Yichun Guangming Furniture Co., Ltd 6.65 Yida Co., Ltd., or Yitai Worldwide, Ltd., or Yili Co., Ltd., or Yetbuild Co., Ltd 6.65 Yihua Timber Industry Co., Ltd 6.65 Zhang Zhou Sanlong Wood Product Co., Ltd 6.65 Zhangjiagang Zheng Yan Decoration Co., Ltd 6.65 Zhangjiagang Daye Hotel Furniture Co., Ltd 6.65 Zhangzhou Guohui Industrial & Trade Co. Ltd 6.65 Zhanjiang Sunwin Arts & Crafts Co., Ltd 6.65 Zhong Shan Fullwin Furniture Co., Ltd 6.65 Zhongshan Fookyik Furniture Co., Ltd 6.65 Zhongshan Golden King Furniture Industrial Co., Ltd 6.65 Zhoushan For-Strong Wood Co., Ltd 6.65 PRC-Wide Rate* 198.08 * In the *Final Determination* , the Department inadvertently listed Tech Lane Wood Mfg. and Kee Jia Wood Mfg. separately in the weighted-average dumping margin chart, which may have led parties to conclude that these companies were entitled to a separate rate. This, in fact, is not the case. Subject merchandise produced/exported by Tech Lane Wood Mfg. and Kee Jia Wood Mfg. is subject to the PRC-wide rate. This notice constitutes the antidumping duty order with respect to wooden bedroom furniture from the PRC pursuant to section 735(a) of the Act. Interested parties may contact the Department's Central Records Unit, Room B-099 of the main Commerce building, for copies of an updated list of antidumping duty orders currently in effect. Scope of Order The product covered by the order is wooden bedroom furniture. Wooden bedroom furniture is generally, but not exclusively, designed, manufactured, and offered for sale in coordinated groups, or bedrooms, in which all of the individual pieces are of approximately the same style and approximately the same material and/or finish. The subject merchandise is made substantially of wood products, including both solid wood and also engineered wood products made from wood particles, fibers, or other wooden materials such as plywood, oriented strand board, particle board, and fiberboard, with or without wood veneers, wood overlays, or laminates, with or without non-wood components or trim such as metal, marble, leather, glass, plastic, or other resins, and whether or not assembled, completed, or finished. The subject merchandise includes the following items:
(1)Wooden beds such as loft beds, bunk beds, and other beds;
(2)wooden headboards for beds (whether stand-alone or attached to side rails), wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds;
(3)night tables, night stands, dressers, commodes, bureaus, mule chests, gentlemen's chests, bachelor's chests, lingerie chests, wardrobes, vanities, chessers, chifforobes, and wardrobe-type cabinets;
(4)dressers with framed glass mirrors that are attached to, incorporated in, sit on, or hang over the dresser;
(5)chests-on-chests 1 , highboys 2 , lowboys 3 , chests of drawers 4 , chests 5 , door chests 6 , chiffoniers 7 , hutches 8 , and armoires 9 ;
(6)desks, computer stands, filing cabinets, book cases, or writing tables that are attached to or incorporated in the subject merchandise; and
(7)other bedroom furniture consistent with the above list. 1 A chest-on-chest is typically a tall chest-of-drawers in two or more sections (or appearing to be in two or more sections), with one or two sections mounted (or appearing to be mounted) on a slightly larger chest; also known as a tallboy. 2 A highboy is typically a tall chest of drawers usually composed of a base and a top section with drawers, and supported on four legs or a small chest (often 15 inches or more in height). 3 A lowboy is typically a short chest of drawers, not more than four feet high, normally set on short legs. 4 A chest of drawers is typically a case containing drawers for storing clothing. 5 A chest is typically a case piece taller than it is wide featuring a series of drawers and with or without one or more doors for storing clothing. The piece can either include drawers or be designed as a large box incorporating a lid. 6 A door chest is typically a chest with hinged doors to store clothing, whether or not containing drawers. The piece may also include shelves for televisions and other entertainment electronics. 7 A chiffonier is typically a tall and narrow chest of drawers normally used for storing undergarments and lingerie, often with mirror(s) attached. 8 A hutch is typically an open case of furniture with shelves that typically sits on another piece of furniture and provides storage for clothes. 9 An armoire is typically a tall cabinet or wardrobe (typically 50 inches or taller), with doors, and with one or more drawers (either exterior below or above the doors or interior behind the doors), shelves, and/or garment rods or other apparatus for storing clothes. Bedroom armoires may also be used to hold television receivers and/or other audio-visual entertainment systems. The scope of the Petition excludes the following items:
(1)Seats, chairs, benches, couches, sofas, sofa beds, stools, and other seating furniture;
(2)mattresses, mattress supports (including box springs), infant cribs, water beds, and futon frames;
(3)office furniture, such as desks, stand-up desks, computer cabinets, filing cabinets, credenzas, and bookcases;
(4)dining room or kitchen furniture such as dining tables, chairs, servers, sideboards, buffets, corner cabinets, china cabinets, and china hutches;
(5)other non-bedroom furniture, such as television cabinets, cocktail tables, end tables, occasional tables, wall systems, book cases, and entertainment systems;
(6)bedroom furniture made primarily of wicker, cane, osier, bamboo or rattan;
(7)side rails for beds made of metal if sold separately from the headboard and footboard;
(8)bedroom furniture in which bentwood parts predominate 10 ;
(9)jewelry armories 11 ;
(10)cheval mirrors 12
(11)certain metal parts 13
(12)mirrors that do not attach to, incorporate in, sit on, or hang over a dresser if they are not designed and marketed to be sold in conjunction with a dresser as part of a dresser-mirror set. 10 As used herein, bentwood means solid wood made pliable. Bentwood is wood that is brought to a curved shape by bending it while made pliable with moist heat or other agency and then set by cooling or drying. See Customs' Headquarters' Ruling Letter 043859, dated May 17, 1976. 11 Any armoire, cabinet or other accent item for the purpose of storing jewelry, not to exceed 24″ in width, 18″ in depth, and 49″ in height, including a minimum of 5 lined drawers lined with felt or felt-like material, at least one side door lined with felt or felt-like material, with necklace hangers, and a flip-top lid with inset mirror. See Memorandum from Laurel LaCivita to Laurie Parkhill, Office Director, Issues and Decision Memorandum Concerning Jewelry Armoires and Cheval Mirrors in the Antidumping Duty Investigation of Wooden Bedroom Furniture from the People's Republic of China dated August 31, 2004. 12 Cheval mirrors, *i.e.* , any framed, tiltable mirror with a height in excess of 50″ that is mounted on a floor-standing, hinged base. 13 Metal furniture parts and unfinished furniture parts made of wood products (as defined above) that are not otherwise specifically named in this scope ( *i.e.* , wooden headboards for beds, wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds) and that do not possess the essential character of wooden bedroom furniture in an unassembled, incomplete, or unfinished form. Such parts are usually classified in subheading 9403.90.7000, HTSUS. Imports of subject merchandise are classified under statistical category 9403.50.9040 of the HTSUS as “wooden * * * beds” and under statistical category 9403.50.9080 of the HTSUS as “other * * * wooden furniture of a kind used in the bedroom.” In addition, wooden headboards for beds, wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds may also be entered under statistical category 9403.50.9040 of the HTSUS as “parts of wood” and framed glass mirrors may also be entered under statistical category 7009.92.5000 of the HTSUS as “glass mirrors * * * framed.” This investigation covers all wooden bedroom furniture meeting the above description, regardless of tariff classification. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this proceeding is dispositive. Continuation of Suspension of Liquidation In accordance with section 735(c)(1)(B) of the Act, we will instruct U.S. Customs and Border Protection (“CBP”) to continue to suspend liquidation of all entries of subject merchandise from the PRC (except for entries of Markor International Furniture (Tianjin) Manufacture Co., Ltd. (“Markor Tianjin”) because this company has a de minimis margin). We will also instruct CBP to require cash deposit or the posting of a bond equal to the estimated amount by which the normal value exceeds the U.S. price as indicated in the chart above. These instructions suspending liquidation will remain in effect until further notice. This order is published in accordance with section 736(a) of the Act and 19 CFR 351.211. Dated: December 27, 2004. Joseph A. Spetrini, Acting Assistant Secretary for Import Administration. [FR Doc. E4-3926 Filed 1-3-05; 8:45 am] BILLING CODE 3510-DS-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 072204A] Taking Marine Mammals Incidental to Specified Activities; Sandholdt Road Bridge Replacement, Moss Landing, California AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of issuance of an incidental harassment authorization. SUMMARY: In accordance with provisions of the Marine Mammal Protection Act
(MMPA)as amended, notification is hereby given that an Incidental Harassment Authorization
(IHA)has been issued to the Monterey County Department of Public Works (Monterey County DPW) to take small numbers of marine mammals, by harassment, incidental to the replacement of the Sandholdt Road Bridge (Bridge) in Moss Landing, Monterey County, CA. DATES: This authorization is effective from April 15, 2005, through April 14, 2006. ADDRESSES: A copy of the application, IHA, and/or a list of references used in this document may be obtained by writing to Steve Leathery, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. FOR FURTHER INFORMATION CONTACT: Kenneth Hollingshead, Office of Protected Resources, NMFS,
(301)713-2389, ext 128 or Monica DeAngelis, NMFS,
(562)980-3232. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and
(D)of the MMPA (16 U.S.C. 1361 *et seq.* ) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, notice of a proposed authorization is provided to the public for review. Permission may be granted if NMFS finds that the taking will have no more than a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses and that the permissible methods of taking and requirements pertaining to the monitoring and reporting of such taking are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as: “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” Subsection 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except for certain categories of actions not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which
(i)has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or
(ii)has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Subsection 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of small numbers of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization. Summary of Request On February 26, 2004, NMFS received an IHA application from the California Department of Transportation (CALTRANS) on behalf of the Monterey County DPW. The IHA request is for the potential harassment of small numbers of Pacific harbor seals ( *Phoca vitulina* ) and possibly some California sea lions ( *Zalophus californianus* ), incidental to demolition of the current Bridge and construction of a new Bridge. Construction is scheduled to extend from early to mid-2005 until the fall of 2006. A detailed description of the work planned is contained in the CALTRANS application and in LSA Associates, Inc. (1999). The County of Monterey, with funding from the Federal Highway Administration (FHWA), proposes to replace the existing one-lane Bridge over the Moss Landing Slough. Sandholdt Road, a two-lane county road, carries an average of about 2700 vehicles per day between Moss Landing Road and part of the community of Moss Landing. The Bridge is of unknown age with a deck replacement having taken place over 54 years ago. The wooden piling system has been weakened by marine bore worms and is decaying. The Bridge, therefore, is at the end of its useful service life. The one-lane Bridge is a traffic safety concern and does not meet Federal standards for rural roads, which require such bridges to have a minimum of two traffic lanes and safe access for pedestrians. The Bridge does not meet structural capacity requirements as it is incapable of withstanding loads over minimum highway legal loads. Further, because of its age and dilapidated condition, the structure is not capable of withstanding a significant earthquake without the possibility of incurring significant damage that may require the Bridge to be closed for repairs. Bridge closure may result in significant economic impact to the community, as the Bridge is the only public access point to the island. Description of the Activity The proposed new Bridge will improve traffic operations and safety and provide safe access for pedestrians and bicyclists. The following improvements are planned:
(1)Construct a new 321-ft (98-m) long bridge with two 12-ft (3.6-m) travel lanes;
(2)improve pedestrian safety by constructing a 5-ft (1.5-m) sidewalk on the north side of the new Bridge with pedestrian lighting;
(3)improve safety for bicyclists by constructing 4-ft (1.2-m) bicycle lanes on each side of the new Bridge; and
(4)improve the turn radius of the Bridge approach on the west and the Bridge alignment with Sandholdt Road on the east by constructing the new Bridge 23 m (75 ft) south of the existing structure. The Bridge will be supported by two bridge abutments and 3 pairs of 1.7-m (5.6-ft) diameter columns. Each of the columns will be supported by a Cast-In-Shell
(CISS)pile of the same diameter. Each CISS pile will be installed using standard bridge construction practices. This includes the use of a vibratory hammer to drive the piles down into the substrate and an impact hammer to drive the piles the last 1.7 m (5.6 ft) in order to determine if load capacity has been reached. The Bridge replacement work will include construction of a temporary access trestle for equipment access during construction that includes installation of wood pilings, installation of temporary supporting framework (falsework) piles, and, later, removal of existing wood piles. The piles and trestle deck will be installed at the same time and the crane that drives the piles will be mounted on the previously constructed portion of the trestle span. The falsework piles will be installed in a similar manner. Construction of the access trestle and falsework will require a total of approximately 200 piles (0.3 to 0.6 m by 15 m (11.8 in. to 24 in. by 49 ft), wood or steel). These piles could be installed with a vibratory hammer and/or drop (impact) hammer. The time to install each pile will be about 30 to 60 minutes. Construction of the bridge span will require 6 piles (1.7 by 31.75 m (5.6 by 104 ft)) in the slough and 12 piles (0.61 by 19.05 m (2 by 62.5 ft)) on the shore, for the abutment foundation. These will be the CISS piles. They will be installed using a vibratory hammer and a drop (impact) hammer. A work barge will be anchored at the Bridge site for approximately 3 months to assist with the construction of the temporary access trestle, which will take about 2 weeks. It will take approximately 2 weeks to place embankment earthwork, four weeks to drive the bridge piles, 3 weeks to drive the falsework piles, and approximately 3 weeks to construct the abutments. After the falsework is in place, the superstructure will take approximately 36 weeks to construct. Once the superstructure is completed, it will take 2 weeks to remove the falsework piles, 2 weeks to remove the access trestle, and about 4 weeks to remove the existing Bridge. The existing piles will be removed from the channel by a crane lifting and applying vibration. Additional dilapidated pilings along the adjacent shoreline will be removed in a similar manner. These activities will presumably take place under a future IHA because they will occur after the subject IHA expires. The Monterey County DPW has divided the work year into two seasons, an in-water period and an out-of-water period. In-water construction is limited to the months of June through October, as required by condition 15 of the California Coastal Commission's Coastal Development Permit (CCC CDP). Out-of-water construction activities are defined as any activities located above mean high water (MHW), which is +0.61 m (2.0 ft) at the Sandholdt Road Bridge site. Activities, such as pile driving, are considered “in-water” regardless of the actual tide level at the time of construction. Certain activities, however, are classified as both in-water and out-of-water because some portions of the activity take place above and below the MHW. Most of the activities described in this document are considered “in-water” activities. Because construction activities have the potential to disturb harbor seals moving to and from a haul-out site located about 500-800 m (1640 to 2625 ft) south of the Bridge along the Old Salinas River, an IHA is warranted. Comments and Responses A notice of receipt and request for 30-day public comment on the application and proposed authorization was published on August 24, 2004 (69 FR 51992). During the 30-day public comment period, comments were received from the Marine Mammal Commission, Monterey County DPW and one individual. The Commission concurs with NMFS' determinations concerning the impacts of the proposed activities on harbor seals and California sea lions and recommends that the authorization be granted. *Comment 1:* Without providing supporting documentation, the individual commenter believes that the project cannot be accomplished without killing seals and that the pinniped population estimates are flawed. In addition, this person believes that seals have few places acceptable to them to live and this construction project will drive them from one of these few sites. *Response:* Information was provided in the proposed IHA notice that harbor seals are found at 400 to 500 haul-out sites along the mainland coast and offshore islands of California. Based on the most recent counts, the California stock of the Pacific harbor seal is estimated at 27,863 (Carretta *et al.* , 2003) having a net annual increase of approximately 3.5 percent, but are increasing at about 7.7 percent annually in Monterey Bay. During Bridge construction, harbor seals will not be killed or seriously injured, but may be disturbed on a daily basis as they are moving to and from the haul-out site located about 500-800 m (1640 to 2625 ft) south of the Bridge site. Due to this distance, no harbor seals are expected to flush from the haul-out. In the project area approximately 35 individuals are known to haul out along the Old Salinas River approximately 500 to 800 m (1640 to 2625 ft) south of the current Bridge location, with more seals generally found at about 800 m (2625 ft) or more south of the Bridge (J. Harvey, pers. comm). The new Bridge will not eliminate or significantly alter haul-out sites. Therefore, as seen at other construction sites, although there may be short-term abandonment of these haul-out sites due to construction noise, long-term abandonment is unlikely. In addition, since these sites are not prime locations for pupping and nursing (a prime location is nearby in Elkhorn Slough) and in-water work is limited to the period from June through October, it is highly unlikely that this project will significantly impact harbor seals. As California sea lions do not haul out in this area, no impact on sea lion haul-outs is likely. *Comment 2:* The Monterey County DPW had several technical corrections to the proposed mitigation measures. First, backup alarms are important for public safety and, therefore, cannot be disabled to reduce noise levels. Second, the County does not have authority to restrict vessel traffic in the vicinity of the Bridge or near the pinniped haul-out site, except to limit vessel traffic by County staff and contractors. Therefore, Monterey County DPW states, neither of these mitigation measures are feasible. *Response:* NMFS has not included in the IHA a requirement to disable back-up alarms and has modified the vessel traffic restriction to vessels associated with the construction activity itself. *Comment 3:* The Monterey County DPW recommends that the biological monitor(s) record noise levels by noting the types of construction equipment being used each day and then refer to the table provided in the CALTRANS application (which provides the typical noise level for each type of equipment). Alternatively, Monterey County DPW recommends the monitor could record in-air noise levels with a simple decibel meter, but it would be difficult to standardize such measurements in a way that would make them meaningful (and in a way that would not interfere with the biologist's primary responsibility of monitoring the marine mammals). *Response:* NMFS believes that in-air noise levels produced by the construction equipment will not cause more than a short-term behavioral response by the affected pinnipeds. As a result, noting behavioral responses made by the harbor seals to the specific type of equipment being used at the time will be sufficient for this activity. *Comment 4:* The Monterey County DPW requests that in-water monitoring be restricted to the establishment of in-water buffer zone (as described later in this document), as the cost of more frequent underwater sound monitoring would be prohibitive. *Response:* As noted in the CALTRANS' application, when pile-driving is started, a qualified underwater acoustic monitor will record sound pressure levels
(SPLs)from the pile driving to determine the distance to the 160- and 190-dB re 1 μPa (root-mean-squared or rms) isopleths. The measured 160-dB radius will be the new marine mammal buffer zone and the 190-dB radius will be the marine mammal safety zone for that specific type of activity. This same procedure will be followed to establish the appropriate buffer and safety zones for each type of loud in-water construction activity (e.g., impact hammer, vibratory hammer), different hammer sizes and types of piles (e.g., hollow steel, wood). Alternatively, the Monterey County DPW can conduct underwater measurements of the loudest in-water activity (presumably the largest impact hammer) and use those measurements to establish conservative buffer and safety zones for pinnipeds. *Comment 5:* Monterey County DPW requests that the IHA have a delayed effectiveness until April 15, 2005, when out-of-water construction work is scheduled to start. *Response:* NMFS agrees. Early issuance of an IHA with a delayed effectiveness date allows a Holder of an IHA time to incorporate marine mammal mitigation measures into work contracts and to establish the marine mammal monitoring program. Description of Habitat and Marine Mammals Affected by the Activity A description of the habitat and its associated marine mammals affected by the proposed Bridge replacement project can be found in the CALTRANS application and in Monterey County DPW Marine Mammal and Bird Mitigation Plan (CALTRANS, 2004). Harbor seals routinely move between the Old Salinas River, beneath and south of the existing Bridge, and the adjoining Moss Landing Harbor, on the north side of the site. Approximately 35 individuals are known to haul out along the Old Salinas River approximately 500 to 800 m (1640 to 2625 ft) south of the current Bridge location, with more seals generally found at about 800 m (2625 ft) or more south of the Bridge. California sea lions only occasionally transit through the project area, but are not known to haul-out in the area. Marine Mammals General information on harbor seals and other marine mammal species found in Central California waters can be found in Carretta *et al.* (2002, 2003), which are available at the following URL: *http://www.nmfs.noaa.gov/prot_res/PR2/ Stock_Assessment_Program/sars.html* . Please refer to these documents for information on these species. The marine mammals likely to be affected by work in the Bridge area are limited to harbor seals and California sea lions. The harbor seal and California sea lion are the only marine mammal species expected to be found regularly in the Bridge area and are described in detail below. Harbor Seals The California stock of harbor seals is comprised of those seals found at the 400 to 500 haul-out sites along the mainland coast and offshore islands of California. Based on the most recent counts, the California stock of the Pacific harbor seal is estimated at 27,863 (Carretta *et al.* , 2003). A rapid increase in harbor seal abundance was recorded from 1972 to 1990, but there has been no net growth along the mainland or Channel Islands since 1990. The annual growth rate estimate is 3.5 percent, however, the current rate of reproduction is greater than this observed rate because fishery mortality takes a fraction of the net production (Carretta *et al.* , 2003). Harbor seals are considered non-migratory, generally making local movements in association with the distribution of food resources, tides, weather, season and breeding activities (Bigg, 1973, 1981; Stewart and Yochem, 1994). Harbor seals are found in estuaries and marine embayments, and typically rest ashore or haul out on beaches and tidal-inundated habitats such as mudflats, marshes, and near-shore rocky outcroppings (Kopec and Harvey, 1995; Zeiner et al., 1990). They often use these isolated, undisturbed sites for pupping, molting, and resting. Harbor seals are very skittish by nature, and a startle response in harbor seals can vary from a temporary state of agitation by a few individuals to the permanent abandonment of the haul-out site by the entire colony. Normally, when harbor seals are frightened by a noise, the approach of a boat, plane, human, predator, or another seal, for example, they will move rapidly to the water or flush. Disturbances have the potential to cause a more serious effect during pupping or nursing, or when aggregations are dense during the molting season, as mothers may become separated from their pups or individuals may be injured. Harbor seals feed opportunistically on a variety of fish, crustaceans, and cephalapods (Zeiner *et al.* , 1990). Harbor seals are year-round residents in the Monterey Bay area and, contrary to the trend noted above for the stock as a whole, Hanan et al. (1992), as reported in Harvey (2003), report that the Monterey Bay population is increasing at an annual rate of approximately 7.7 percent. Within the Monterey Bay area, there are numerous haul-out sites. Several locations in Elkhorn Slough are of particular importance, as they provide the gently-sloped, isolated, undisturbed conditions critical to harbor seals. Within the Sandholdt Road Bridge Replacement project vicinity, harbor seals are known to routinely haul out at a recently established site, located approximately 800 m (2625 ft) south of the Bridge, along the Old Salinas River. This is not a location typically used by harbor seals for pupping and nursing, and although such activities could occur at the site, it is considered a rare event. Harbor seals may use the Old Salinas River haul out during the molting season, but it is presumed that long-established alternative sites in this region (i.e. along Elkhorn Slough) are more preferable to seals during these sensitive time periods. Bridge construction may temporarily restrict a small number of harbor seals from using this haul-out site during the construction period. California Sea Lions The geographic range of the U.S. stock of the California sea lion extends from the U.S./Mexico border north into Canada. Breeding occurs only in the Gulf of California, western Baja California, and southern California. Population estimates for this stock range from 244,000 to 237,000. The minimum population size is based on counts of all age and sex classes that were ashore at all major rookeries and haul-out sites during the 2001 breeding season, the number of births estimated from the pup count, and the proportion of the pups in the population. Current trends indicate that the stock as a whole has been growing at a rate of 5.4 to 6.1 percent per year (Carretta *et al.* , 2003). The Monterey Bay population is reported to be increasing at a slightly higher rate of 6 to 8 percent (Harvey, 2003). California sea lions are the most abundant pinniped in the Monterey Bay region, with the highest numbers occurring during the spring and fall migrations (MBA, 1999). At least 12,000 California sea lions may be present within the entire Monterey Bay National Marine Sanctuary at any one time (Harvey, 2003), although only a few individuals are typically present within the Moss Landing Harbor-Sandholdt Road Bridge Project area (S. Dearn pers. comm.). Most of the sea lions within the region are males of varying age classes that arrive in early fall from their southern breeding grounds (MBA, 1999). Many individuals remain over the course of the winter until the following spring, with just a few sea lions staying through the summer. There are no breeding areas for the California sea lion located in the Monterey Bay area, and most individuals migrate to offshore breeding sites in southern California and Mexico. Potential Effects on Marine Mammals The impact to harbor seals and California sea lions is expected to be disturbance by the presence of workers, construction noise, and construction vessel traffic. The crane used to construct the access trestle will generate a moderate degree of noise (similar to that of a diesel truck). Pile driving will be noisier and will also cause ground vibrations. Vibratory hammers usually create less noise than pile driving, but noise will also be created by rock drills, other tools and also several of the vehicles commonly used on construction sites. The pile drivers planned for use at the Bridge have energy levels of approximately 16-24 kiloJoules (kJ). This is significantly less energy than either of the pile drivers being used on the San Francisco-Oakland Bay Bridge (SF-OBB)(see 68 FR 64595, November 14, 2003), which are 500 kJ and 1700 kJ. As a result, airborne and underwater impact zones for marine mammals (and other estuarine life) will be significantly smaller than at SF-OBB. At a distance of 50 ft (15.2 m) from the specific activity, CALTRANS believes airborne noise levels from the pile driver (and other construction equipment) will not exceed 100 dBA and most sounds will be 90 dBA or lower at that distance. Previously, NMFS has determined that sound exposure levels
(SELs)of 100 dBA and 90 dBA (re 20 micro-Pa 2 -sec) or greater are the levels where California sea lions (and northern elephant seals) and Pacific harbor seals, respectively, will sometimes be harassed. Pinnipeds inside these airborne SEL isopleths at the time of pile driving and other equipment activity are presumed to be harassed, whether or not an actual behavioral disturbance occurs. NMFS does not believe that any airborne sounds from the Bridge construction site are sufficient to cause Level A harassment (injury or potential therefor). However, harbor seals and possibly some California sea lions may be disturbed on a daily basis as they are moving within the area and harbor seals are transiting to and from the haul-out site located about 500-800 m (1640 to 2625 ft) south of the Bridge site. Moreover, due to the distance between the construction site and the haul-out, no harbor seals are expected to be disturbed sufficiently to cause them to flush from the haul-out. In addition to airborne sounds, loud underwater sounds, such as those produced by in-water pile driving, can have detrimental effects on marine mammals, causing stress, changes in behavior, and interference with communication and predator/prey detection. The most significant detrimental effect that loud underwater noises can have on marine mammals is a temporary or permanent loss of hearing. Based on studies, previous pile-driving projects, consultation with experts, and review of the literature, NMFS has determined that marine mammals may exhibit behavioral changes when exposed to underwater impulse SPLs of 160 dB re 1 μPa (rms). In addition, current NMFS policy is that underwater SPLs at 190 dB re 1 micro-Pa RMS (impulse) and above could cause temporary or permanent hearing impairment in harbor seals and sea lions and therefore, activities should be designed to ensure, to the greatest extent practicable, that pinnipeds are not exposed to SPLs greater than 190 dB dB re 1 μPa rms. While disturbances can consist of head alerts, approaches to the water, and flushes into the water, only the latter behavior is considered by NMFS to be Level B harassment in this situation. During the in-water work period (June through October), the incidental harassment of harbor seals is expected to occur on a daily basis upon initiation of the work. During the out-of-water work period, incidental harassment of harbor seals is expected to occur less frequently than what is expected for in-water construction activities. In addition, the number of seals disturbed will vary daily depending upon tidal elevations. Although California sea lions have been shown to react to pile driving noise by porpoising quickly away from other bridge construction sites (SRS Technologies, 2001), it is not known whether they will react to general construction noise and move away from the area during construction activities. However, sea lions are generally thought to be more tolerant of human activities than harbor seals and are, therefore, less likely to be affected. However, Level B harassment of California sea lions may occur on rare occasions during the in-water work and out-of-water work periods. However, disturbance from these activities is expected to have no more than a short-term negligible impact on the affected species or stocks and will result in harassment takes of small numbers of harbor seals and sea lions. These disturbances will be reduced to the lowest level practicable by implementation of the work restrictions and mitigation measures (see Mitigation). Potential Effects on Habitat The activities are expected to result in a temporary reduction in utilization of the Old Salinas River haulout site while work is in progress or until seals acclimate to the disturbance. This will not likely result in any permanent reduction in the number of seals at the Old Salinas River haul out. Permanent abandonment of the haul-out site is not anticipated since traffic noise from the Bridge, commercial activities along the river front area, and recreational boating that currently occurs within the area have not caused long-term abandonment. In addition, mitigation measures and work restrictions are designed to preclude abandonment. Therefore, as described in detail in the CALTRANS (2004), other than the potential short-term abandonment by harbor seals of part or all of the Old Salinas River haul-out site during Bridge construction, no impact on the habitat or food sources of marine mammals are likely from this construction project. Mitigation Among other local, state and Federal requirements, the Monterey County DPW marine mammal (and bird) mitigation plan was prepared to comply with condition 8 of the Monterey County Coastal Development Permit and the CCC CDP. The access trestle and falsework piles will be located such that they do not pose more of a barrier to marine mammals than do the support structures for the existing Bridge. In addition, construction barges and/or other in-water support construction equipment will be located in an area that would not restrict the movements of harbor seals or California sea lions through the work area. To minimize underwater noise levels, the loudest pile-driving activities will be restricted to low-water periods. The loudest in-water noise levels are expected to occur during pile driving of the 6 large CISS piles with an impact hammer (driving steel piles is much louder than driving wooden piles, and an impact hammer is much louder than a vibratory hammer). As a result, the following mitigation measures will apply to pile driving:
(1)for the two CISS piles in the deeper channel area, the impact hammer will not be used when water depth is more than 5 ft (1.5 m); and
(2)for the other 4 CISS piles, the impact hammer will be used when the water depth is more than 3 ft (1 m). Several mitigation measures to reduce the potential for general noise have been implemented by the Monterey County DPW as part of their activity. General restrictions include: piles will only be driven during daylight hours and all in-water support equipment will be located so as not to restrict marine mammal movement. To minimize potential harassment of marine mammals to the lowest level practicable, the following mitigation measures are also required:
(1)limit all in-water construction activity (as described in the Marine Mammal and Bird Mitigation Plan (Monterey County DPW, 2004)) to the period from June 1 through October 31, and
(2)minimize Bridge construction-related vessel traffic to the greatest extent practicable in the in-water buffer zone (described in the next paragraph) when conducting in-water construction activities and to the greatest extent practicable near the haul-out site. Underwater sound measurements have not been made for the pile driving equipment planned for use at the Bridge. Until the distance at which underwater sound levels equal 160 db and 190 dB re 1 μPa rms can be determined and implemented, Monterey County DPW will establish a preliminary in-water marine mammal impact zone, delineated by a 500-ft (152-m) radius from the in-water construction activity. The preliminary in-water, 500-ft (152-m) impact zone will be clearly marked by highly visible stakes securely placed on the banks. Once pile-driving has started, a qualified underwater acoustic monitor will record SPLs from the pile driving to determine the distance to 160- and 190-dB re 1 μPa rms isopleths. When these radii are established, they will replace the 500-ft (152-m) impact zone and will be used as the 160-dB pinniped buffer and 190-dB pinniped safety zones. This same procedure will be followed to establish the appropriate buffer and safety zones for each type of loud in-water construction activity (e.g., impact hammer, vibratory hammer), different hammer sizes and types of piles (e.g., hollow steel, wood). The 160-dB radius will be called the pinniped buffer zone and the 190-dB radius will be called the pinniped safety zone for the specific type of activity currently underway. Alternatively, under the IHA, the Monterey County DPW can conduct underwater measurements of only the loudest in-water activity (presumably the largest impact hammer) and use those measurements to establish conservative buffer and safety zones for pinnipeds. The new safety zones will be clearly marked by highly visible stakes and the stakes delineating the initial 500-ft (152-m) impact zone will be removed. Each day, before pile-driving (or other loud in-water construction activity) begins, the marine mammal monitor will survey the appropriate impact, buffer and/or safety zones for harbor seals and California sea lions. If any pinnipeds are sighted within the impact or safety zones, the monitor will require the contractor to delay pile-driving until the monitor determines that the marine mammal(s) has moved beyond the impact or safety zone, either through sighting or by waiting until enough time has elapsed (about 15 minutes) to assume that the animal has moved beyond the safety zone. However, once pile driving has begun, that individual pile can be driven to depth without cessation notwithstanding any pinniped presence. Other in-water and out-of-water construction activities not related to pile driving, such as the use of heavy equipment to place embankment earthwork and rock slope protection, construct bridge abutments and the superstructure, and complete the roadway and embankment structural section ( *i.e.* , activities not involving loud, impulsive hammering sounds), will generate noise levels equivalent to that of a diesel truck. For these activities, a 50-ft (15.2-m) radius impact zone will be established if that radius extends into the water. This pinniped impact zone will be clearly marked by highly visible stakes securely placed into the banks. Each day before non-pile driving construction begins, the monitor will search the 50-ft (15.2-m) impact zone for marine mammals. If a marine mammal is sighted within the impact zone, the monitor will require the contractor to delay in-water or out-of-water construction activities until the monitor determines that no marine mammals are present within the impact zone. Monitoring In addition to monitoring and recording behavioral responses within the 50-ft (15.2-m) pinniped impact zone, the preliminary 500-ft (152-m) pinniped impact zone, and the buffer and safety zones, NMFS is requiring the Monterey County DPW to monitor the impact of Bridge replacement construction activities on harbor seals (and California sea lions, if present) at the Old Salinas River haul-out site. In addition to specific monitoring tasks mentioned herein, all biological monitor(s) will record general construction activity (including all equipment being used), location, duration, and standardized noise levels for the construction equipment. Monitoring will be divided into the in-water and out-of-water construction periods. Monitoring will be conducted every day during in-water construction activities and for an 8-hour period once a week during out-of-water activities, by at least one trained, NMFS-approved, biological monitor. The following data will be recorded:
(1)Number of seals and sea lions on site;
(2)date;
(3)time;
(4)tidal height;
(5)number of adults, subadults, and pups;
(6)number of females and males;
(7)number of molting seals; and
(8)details of any observed disturbances. The monitor(s) will conduct baseline observations of pinniped behavior at the Old Salinas River haul-out site, once a day for a period of 5 consecutive days immediately before the initiation of construction in the area to establish pre-construction behavioral patterns. In addition, NMFS requires that, immediately following the completion of the construction of the Bridge, the monitor(s) will conduct observations of pinniped behavior at the Old Salinas River haul out, for at least 5 consecutive days for approximately 1 tidal cycle (high tide to high tide) each day. Reporting NMFS will be notified in writing within 10 working days of any changes to the impact, buffer and safety zones due to completion and analysis of the SPL measurements. The Monterey County DPW will provide weekly reports to the Southwest Regional Administrator (Regional Administrator), NMFS, including a summary of the previous week's monitoring activities and an estimate of the number of pinnipeds that may have been disturbed as a result of Bridge replacement construction activities. These reports will provide dates, time, tidal height, maximum number of harbor seals ashore, number of adults, sub-adults and pups, number of females/males, and any observed disturbances. The Monterey County DPW will also provide a description of construction activities at the time of observation and any SPL measurements made at the haulout site. The Monterey County DPW must submit draft final reports to NMFS within 90 days of completion of the 2005 in-water work phase and the 2005/2006 out-of-water work phase. The draft interim reports are considered final reports unless NMFS requests modifications to those reports within 90 days of receipt. The Monterey County DPW will also provide NMFS with a follow-up report on the post-construction monitoring activities within 18 months of project completion in order to evaluate whether haulout patterns are similar to the pre-Bridge replacement haul-out patterns at the Old Salinas River site. Endangered Species Act
(ESA)NMFS has determined that this action will have no effect on species listed under the ESA that are under the jurisdiction of NMFS. On April 12, 2000, the U.S. Fish and Wildlife Service (USFWS) concurred with the determination of the FHWA that the proposed Bridge project was not likely to adversely affect the federally endangered goby ( *Eucyclobgobius newberryi* ), the brown pelican ( *Pelecanus occidentalis* ) and southern sea otter ( *Enhydra lutris nereis* ). However, issuance of an IHA to the Monterey County DPW also constitutes an agency action subject to section 7 of the ESA. As the effects of the Bridge activities on listed species were analyzed earlier, and as the action has not changed from that considered in that informal consultation, the discussion of effects that is contained in the April 12, 2000 concurrence letter from the USFWS to the FHWA pertains also to this action. In conclusion, NMFS has determined that issuance of an IHA does not lead to any effects to listed species apart from those that were considered in the consultation on FHWA's action. National Environmental Policy Act
(NEPA)NMFS has prepared an Environmental Assessment
(EA)on this action and has made a Finding of No Significant Impact (FONSI). Therefore, preparation of an environmental impact statement on this action is not required. A copy of the EA and FONSI are available upon request (see ADDRESSES ). Conclusions NMFS has determined that the Bridge replacement, as described in this document, should result, at worst, in the temporary modification in behavior of small numbers of harbor seals and, possibly, of small numbers of California sea lions. While behavioral modifications, including temporarily vacating the haulout, may be made by these species to avoid the resultant visual and acoustic disturbance, this action is expected to have a negligible impact on the affected species and stocks of pinnipeds. In addition, no take by injury and/or death is anticipated, and harassment takes will be at the lowest level practicable due to incorporation of the mitigation measures described in this document. Authorization For the reasons previously discussed, NMFS has issued an IHA for a 1-year period, for the incidental harassment of small numbers of harbor seals and California sea lions incidental to Bridge replacement construction, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: December 27, 2004. Donna Wieting, Acting Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 05-97 Filed 1-3-05; 8:45 am]
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  • 50 CFR 216.103
Citation graph
cites case law
Notices
Notice of issuance of an incidental harassment authorization
C.F.R.§ 351.204
C.F.R.§ 351.305
C.F.R.§ 351.224
C.F.R.§ 351.211
U.S.C.§ 1361
Cite50 CFR 216.103
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