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Code · REGISTER · 2007-04-26 · Federal Emergency Management Agency, DHS · Rules and Regulations

Rules and Regulations. Proposed rule

30,445 words·~138 min read·/register/2007/04/26/07-2072·

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

BILLING CODE 6560-50-M DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7715] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule. SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations
(BFEs)and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The comment period is ninety
(90)days following the second publication of this proposed rule in a newspaper of local circulation in each community. ADDRESSES: The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Section, Mitigation Division, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. *National Environmental Policy Act.* This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This proposed rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This proposed rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: State City/town/county Source of flooding Location #Depth in feet above ground. *Elevation in feet
(NGVD)+Elevation in feet
(NAVD)Existing Modified City of Lynchburg, Virginia Virginia City of Lynchburg Burton Creek Confluence with Blackwater Creek *660 +660 Approximately 1800 feet upstream of Wards Ferry Road None +758 Burton Creek Tributary No. 1 Confluence with Burton Creek None +758 Approximately 1.0 mile upstream of confluence with Burton Creek None +870 Burton Creek Tributary No. 2 Confluence with Burton Creek Tributary No. 1 None +767 Approximately 950 feet upstream of Wade Lane None +844 Burton Creek Tributary No. 3 Confluence with Burton Creek None +758 Approximately 2300 feet upstream of confluence with Burton Creek None +841 Burton Creek Tributary No. 4 Confluence with Burton Creek None +755 Approximately 0.5 mile upstream of Wards Ferry Road None +836 Burton Creek Tributary No. 5 Confluence with Burton Creek None +755 Approximately 850 feet upstream of confluence with Burton Creek None +768 Burton Creek Tributary No. 6 Confluence with Burton Creek None +720 Approximately 1250 feet upstream of confluence with Burton Creek None +757 Rock Castle Creek Confluence with Burton Creek *722 +740 Just upstream of Wards Ferry Road *814 +810 Rock Castle Creek Tributary No. 4 Confluence with Rock Castle Creek None +758 Approximately 1500 feet upstream of railroad spur None +843 Rock Castle Creek Tributary No. 5 Confluence with Rock Castle Creek None +740 Approximately 200 feet upstream of Lynchburg Expressway None +783 Rock Castle Creek Tributary No. 6 Confluence with Rock Castle Creek None +740 Approximately 800 feet upstream of Edgewood Drive None +804 *National Geodetic Vertical Datum. #Depth in feet above ground. +North American Vertical Datum. ADDRESSES City of Lynchburg Maps are available for inspection at 900 Church Street, 2nd Floor Planning Division, Lynchburg, VA 24504. Send comments to The Honorable Joan Foster, Mayor, 900 Church Street, Lynchburg, VA 24504. Flooding source(s) Location of referenced elevation *Elevation in feet
(NGVD)+Elevation in feet
(NAVD)#Depth in feet above ground Effective Modified Communities affected Hancock County, Kentucky, and Incorporated Areas Ohio River Daviess County Line None +392 City of Hawesville. Breckinridge County Line None +407 City of Lewisport, Hancock County (Unincorporated Areas). * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Hawesville Maps are available for inspection at 385 Main Street, Hawesville, KY 42348. Send comments to The Honorable Charles King, Mayor, City of Hawesville, 395 Main Street, P.O. Box 157, Hawesville, KY 42348. City of Lewisport Maps are available for inspection at 590 Old Mill Road, Lewisport, KY 42351. Send comments to The Honorable Chad Gregory, Mayor, City of Lewisport, 1010 Market Street, Lewisport, KY 42351. Hancock County (Unincorporated Areas) Maps are available for inspection at 385 Main Street, Hawesville, KY 42348. Send comments to The Honorable Jack McCaslin, Hancock County, P.O. Box 580, Hawesville, KY 42348. Waukesha County, Wisconsin, and Incorporated Areas Ashippun River At Pennsylvania Avenue Ashippun Lake At Norwegian Road None None None *854 *871 *915 Waukesha County (Unincorporated Areas). Bark River Drumlin Trail At North Road None None *848 *973 Waukesha County (Unincorporated Areas). City of Delafield, Village of Dousman, Village of Hartland, Village of Merton. Butler Ditch Hampton Road *752 *750 City of Brookfield. Lilly Road *759 *757 Deer Creek Pinehurst Drive Harcove Drive *838 *871 *837 *870 City of New Berlin, City of Brookfield. Dousman Ditch Gebhardt Road *828 *825 City of Brookfield. Lake Road *830 *831 Fox River River Road Lannon Road *826 *887 *827 *886 Village of Menomonee Falls, City of Brookfield. Lake Nagawicka Lake Nagawicka *891 *893 City of Delafield. Mukwonago River South Rochester Street Eagle Springs Lake *784 None *786 *822 Waukesha County (Unincorporated Areas), Village of Mukwonago. Pewaukee Lake Pewaukee Lake *855 *854 Village of Pewaukee. Quietwood Creek Woods Road None *781 City of Muskego. Janesville Road None *800 Rosenow Creek Lake Street Brown Street None None *861 *873 Waukesha County (Unincorporated Areas), City of Oconomowoc. South Branch Sussex Creek Bugline Trail Mary Hill Road *938 None *941 *955 Waukesha County (Unincorporated Areas). Village of Sussex. South Branch Underwood Creek At Interstate I-94 *722 *723 City of Brookfield. Sussex Creek Duplainville Road *838 *835 Village of Sussex. Main Street *922 *924 City of Pewaukee. Waukesha County (Unincorporated Areas). Sussex Creek Tributary 1 Weyer Road Lisbon Road None None *845 *859 Waukesha County (Unincorporated Areas). Underwood Creek UPS Service Road Pilgrim Road *725 *821 *724 *819 City of Brookfield, Village of Elm Grove. Upper Namahbin Lake Upper Namahbin Lake *872 *874 Waukesha County (Unincorporated Areas). Upper/Lower Phantom Lake Upper/Lower Phantom Lake *792 *794 Waukesha County (Unincorporated Areas). * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Brookfield Maps are available for inspection at 2000 N. Calhoun Road, Brookfield, WI 53005. Send comments to Mr. Mike Theis, Community Development Director, 2000 N. Calhoun Road, Brookfield, WI 53005. City of Delafield Maps are available for inspection at 500 Genesee Street, Delafield, WI 53018. Send comments to Mr. Matt Carlson, Administrator, 500 Genesee Street, Delafield, WI 53018. City of Muskego Maps are available for inspection at W182 S8200 Racine Avenue, Muskego, WI 53150-0749. Send comments to Mr. Jeff Muenkel, Planning Director, PO Box 0749, Muskego, WI 53150-0749. City of New Berlin Maps are available for inspection at 3805 South Casper Drive, New Berlin, WI 53151. Send comments to Mr. Greg Kessler, Community Development Director, 3805 South Casper Drive, New Berlin, WI 53151. City of Oconomowoc Maps are available for inspection at 174 E. Wisconsin Avenue, Oconomowoc, WI 53066. Send comments to Mr. Jason Gallo, Planning Director, PO Box 27, Oconomowoc, WI 53066. City of Pewaukee Maps are available for inspection at W240N3065 Pewaukee Road, Pewaukee, WI 53072. Send comments to Mr. Harland Clinkenbeard, Planning Director, W240N3065 Pewaukee Road, Pewaukee, WI 53072. Waukesha County (Unincorporated Areas) Maps are available for inspection at 515 W. Moorland Blvd., Waukesha, WI 53188. Send comments to Mr. Dick Mace, Planning and Zoning Manager, 1320 Pewaukee Road, Waukesha, WI 53188. Village of Dousman Maps are available for inspection at 118 S. Main Street, Dousman, WI 53118. Send comments to Mr. Bruce Kaniewski, Zoning Administrator, 118 S. Main Street, Dousman, WI 53118. Village of Elm Grove Maps are available for inspection at 13600 Juneau Blvd., Elm Grove, WI 53122. Send comments to Mr. Austin Eich, Zoning and Planning Administrator, 13600 Juneau Blvd., Elm Grove, WI 53122. Village of Hartland Maps are available for inspection at 210 Cottonwood Avenue, Hartland, WI 53029. Send comments to Mr. Scott Hussinger, Zoning Administrator, 210 Cottonwood Avenue, Hartland, WI 53029. Village of Menomonee Falls Maps are available for inspection at W156 N8480 Pilgrim Road, Menomonee Falls, WI 53051-3140. Send comments to Mr. William Freislenben, Director of Community Development, W156 N8480 Pilgrim Road, Menomonee Falls, WI 53051-3140. Village of Merton Maps are available for inspection at 28343 Sussex Road, Merton, WI 53056. Send comments to Mr. Thomas Nelson, Administrator, 28343 Sussex Road, PO Box 13, Merton, WI 53056. Village of Mukwonago Maps are available for inspection at 440 River Crest Court, Mukwonago, WI 53149. Send comments to Mr. Joseph J Hankovich, Zoning Administrator, 440 River Crest Court, PO Box 206, Mukwonago, WI 53149. Village of Pewaukee Maps are available for inspection at 235 Hickory Street, Pewaukee, WI 53072. Send comments to Mr. Scott Gosse, Village Administrator, 235 Hickory Street, Pewaukee, WI 53072. Village of Sussex Maps are available for inspection at N64 W23760 Main Street, Sussex, WI 53089. Send comments to Mr. Evan Teich, Administrator, N64 W23760 Main Street, Sussex, WI 53089. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: April 16, 2007. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E7-7973 Filed 4-25-07; 8:45 am] BILLING CODE 9110-12-P 72 80 Thursday, April 26, 2007 Notices DEPARTMENT OF AGRICULTURE Forest Service Information Collection; Financial Information Security Request Form AGENCY: Forest Service, USDA. ACTION: Notice, request for comment. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension of a currently approved information collection; Financial Information Security Request Form. DATES: Comments must be received in writing on or before June 25, 2007 to be assured of consideration. Comments received after that date will be considered to the extent practicable. ADDRESSES: Comments concerning this notice should be addressed to Financial Management, Mail Stop 1149, Forest Service, USDA, 1400 Independence Ave., SW., Washington, DC 20250-1149. Comments also may be submitted via facsimile to 703-605-5117 or by e-mail to: *vwilliams@fs.fed.us* . The public may inspect comments received at USDA Forest Service, Rosslyn Plaza, Building C, 1601 N. Kent Street, Arlington, VA during normal business hours. Visitors are encouraged to call ahead to 703-605-4767 to facilitate entry to the building. FOR FURTHER INFORMATION CONTACT: Vanetta Williams, Financial Management, 703-605-4767. Individuals who use TDD may call the Federal Relay Service
(FRS)at 1-800-877-8339, 24 hours a day, every day of the year, including holidays. SUPPLEMENTARY INFORMATION: *Title:* Financial Information Security Request Form. *OMB Number:* 0596-0204. *Expiration Date of Approval:* 9/30/2007. *Type of Request:* Extension of a currently approved collection. *Abstract:* The majority of the Forest Service's financial records are in databases stored at the National Finance Center (NFC). The Forest Service uses employees and contractors to maintain these financial records. The employees and contractors must have access to NFC to perform their duties. The Forest Service uses an electronic form, FS-6500-214—Financial Information Security Request, to apply to NFC for access for a specific employee or contractor. Due to program management decisions and budget constraints, it has been determined that contractors will need to complete and submit the form. No Forest Service employees are available to complete and submit the form requesting contractor access to NFC. The contractor and the Forest Service Lotus Notes Database provide the information necessary to complete form FS-6500-214. The contractor verifies completion of two courses within the last year: Privacy Act Basics and IT (Information Technology) Security. The contractor then enters the Lotus Notes short name assigned by the Forest Service. Using the Lotus Notes short name, the screen is populated with information that the contractor can change if incorrect: Name, work email, work telephone number, and job title. The contractor checks the box for a nonfederal employee and provides the expiration date of the contract. The contractor then selects the databases and actions needed. Based on the database(s) selected, the contractor provides additional information regarding the financial systems, work location, access scope, etc. Once the form is submitted to the client security officer, a one-page agreement automatically prints, which the contractor and client security officer sign. The agreement is a certification statement that acknowledges the contractor's recognition of the sensitive nature of the information and agrees to use the information only for authorized purposes. The information collected is shared with those managing or overseeing the financial systems used by the Forest Service, this includes auditors. *Estimate of Annual Burden:* 10 minutes. *Type of Respondents:* Contracted employees. *Estimated Annual Number of Respondents:* 50. *Estimated Annual Number of Responses per Respondent:* 3. *Estimated Total Annual Burden on Respondents:* 150. Comment is invited on:
(1)Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility;
(2)the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval. Dated: April 20, 2007. Hank Kashdan, Deputy Chief, Business Operations. [FR Doc. E7-8027 Filed 4-25-07; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request The Department of Commerce will submit to the Office for Management and Budget
(OMB)for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act of 1995, Public Law 104-13. *Bureau:* International Trade Administration (ITA). *Title:* Application for Designation of a Fair. *OMB Number:* 0625-0228. *Agency Form Number:* ITA-4135P. *Type of Request:* Regular submission. *Burden Hours:* 100. *Number of Respondents:* 200. *Average Time per Response:* 30 minutes. *Needs and Uses:* The International Trade Administration's Tourism Industries Office offers trade fair guidance and assistance to trade fair organizers, trade fair operators, and other travel and trade oriented groups. These fairs open doors to promising travel markets around the world. The “Application for Designation of a Fair” is a questionnaire that is prepared and signed by an organizer to begin the certification process. It asks the fair organizer to provide details such as the date, place, and sponsor of the fair, as well as license, permit, and corporate backers, and countries participating. To apply for the U.S. Department of Commerce sponsorship, the fair organizer must have all of the components of the application in order. Then, with the approval, the organizer is able to bring in their products in accordance with Customs laws. Articles which may be brought in include, but are not limited to, actual exhibit booths, exhibit items, pamphlets, brochures, and explanatory material in reasonable quantities relating to the foreign exhibits at a fair, and material for use in constructing, installing, or maintaining foreign exhibits at a fair. *Affected Public:* Business or other for-profit organizations. *Frequency:* On occasion. *Respondent's Obligation:* Voluntary. *OMB Desk Officer:* David Rostker,
(202)395-389-3897. Copies of the above information collection proposal can be obtained by writing Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th & Constitution Avenue, NW., Washington, DC 20230; E-mail: *dHynek@doc.gov.* Written comments and recommendations for the proposed information collection should be sent within 30 days of the publication of this notice in the **Federal Register** to David Rostker, OMB Desk Officer, *David_Rostker@omb.eop.gov* or Fax
(202)395-7285. Dated: April 23, 2007. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E7-8008 Filed 4-25-07; 8:45 am] BILLING CODE 3510-DR-P DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request The Department of Commerce
(DOC)will submit to the Office of Management and Budget
(OMB)for clearance the following proposal for collection of information under provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). *Agency:* Bureau of Industry and Security (BIS). *Title:* Short Supply Regulations—Unprocessed Western Red Cedar. *Agency Form Number:* None. *OMB Approval Number:* 0694-0025. *Type of Request:* Regular submission. *Burden:* 35 hours. *Average Time Per Response:* 1 hour. *Number of Respondents:* 35. *Needs and Uses:* The information is collected as supporting documentation for License Exception Western Red Cedar
(WRC)and applications to export WRC logs to enforce the Export Administration Act's prohibition against the export of such logs from State or Federal lands. *Affected Public:* Business or other for-profit organizations. *Respondent's Obligation:* Required to obtain or retain benefits. *OMB Desk Officer:* David Rostker,
(202)395-3897. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer,
(202)482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, e-mail address, *David_Rostker@omb.eop.gov* , or Fax number,
(202)395-7285. Dated: April 23, 2007. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E7-8009 Filed 4-25-07; 8:45 am] BILLING CODE 3510-DT-P DEPARTMENT OF COMMERCE International Trade Administration [A-580-816] Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea; Notice of Amended Final Results of the Twelfth Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On March 20, 2007, the Department of Commerce (the Department) published its final results of the twelfth administrative review for certain corrosion-resistant carbon steel flat products
(CORE)from the Republic of Korea (Korea) for the period from August 1, 2004, through July 31, 2005. We are amending our final results to correct a ministerial error made in the calculation of the dumping margin for Union Steel Manufacturing Co., Ltd. (Union), pursuant to section 751
(h)of the Tariff Act of 1930, as amended (the Act). EFFECTIVE DATE: April 26, 2007. FOR FURTHER INFORMATION CONTACT: Jolanta Lawska, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone:
(202)482-8362. SUPPLEMENTARY INFORMATION: Background On March 20, 2007, the Department published its final results of the twelfth administrative review for CORE from Korea for the period from August 1, 2004, through July 31, 2005. *See Notice of Final Results of the Twelfth Administrative Review of the Antidumping Duty Order on Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea* , 72 FR 13086 (March 20, 2007) ( *Final Results* ), and accompanying Issues and Decision Memorandum from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import Administration. On March 20, 2007, pursuant to 19 CFR 351.224(c), United States Steel Corporation (U.S. Steel) submitted comments alleging a ministerial error, and requesting that the Department correct this alleged ministerial error. Specifically, U.S. Steel alleged that the Department failed to use Union's actual weight-based gross unit price in calculating the dumping margin. Scope of the Order This order covers cold-rolled (cold-reduced) carbon steel flat-rolled carbon steel products, of rectangular shape, either clad, plated, or coated with corrosion-resistant metals such as zinc, aluminum, or zinc-, aluminum-, nickel- or iron-based alloys, whether or not corrugated or painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating, in coils (whether or not in successively superimposed layers) and of a width of 0.5 inch or greater, or in straight lengths which, if of a thickness less than 4.75 millimeters, are of a width of 0.5 inch or greater and which measures at least 10 times the thickness or if of a thickness of 4.75 millimeters or more are of a width which exceeds 150 millimeters and measures at least twice the thickness, as currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers 7210.30.0030, 7210.30.0060, 7210.41.0000, 7210.49.0030, 7210.49.0090, 7210.61.0000, 7210.69.0000, 7210.70.6030, 7210.70.6060, 7210.70.6090, 7210.90.1000, 7210.90.6000, 7210.90.9000, 7212.20.0000, 7212.30.1030, 7212.30.1090, 7212.30.3000, 7212.30.5000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7212.60.0000, 7215.90.1000, 7215.90.3000, 7215.90.5000, 7217.20.1500, 7217.30.1530, 7217.30.1560, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090. Included in this order are corrosion-resistant flat-rolled products of non-rectangular cross-section where such cross-section is achieved subsequent to the rolling process (i.e., products which have been “worked after rolling”) - for example, products which have been beveled or rounded at the edges. Excluded from this order are flat-rolled steel products either plated or coated with tin, lead, chromium, chromium oxides, both tin and lead (“terne plate”), or both chromium and chromium oxides (“tin-free steel”), whether or not painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating. Also excluded from this order are clad products in straight lengths of 0.1875 inch or more in composite thickness and of a width which exceeds 150 millimeters and measures at least twice the thickness. Also excluded from this order are certain clad stainless flat-rolled products, which are three-layered corrosion-resistant carbon steel flat-rolled products less than 4.75 millimeters in composite thickness that consist of a carbon steel flat-rolled product clad on both sides with stainless steel in a 20%%-60%%-20%% ratio. These HTSUS item numbers are provided for convenience and customs purposes. The written descriptions remain dispositive. Amended Final Results of Review After analyzing U.S. Steel's comments, we have determined, in accordance with section 751(h) of the Act and 19 CFR 351.224, that the Department has made a ministerial error in the final results calculation for Union in this administrative review. For a detailed discussion of the ministerial error, *see* Memorandum from Jolanta Lawska to James Terpstra, re: Amended Final Results in the 04/05 Administrative Review on Corrosion-Resistant Carbon Steel Flat Products from Korea, at page 2, dated April 4, 2007 ( *Ministerial Error Memo* ). Therefore, in accordance with section 751(h) of the Act, we are amending the final results of the antidumping duty administrative review of CORE from Korea for the period August 1, 2004, to July 31, 2005. As a result of correcting the ministerial error discussed in the *Ministerial Error Memo* , Union's weighted-average dumping margin increased from 1.45 percent to 1.46 percent. For the remaining respondents, the weighted-average dumping margins remain the same. *See Final Results* . Duty Assessment and Cash Deposit Requirements The Department will determine, and U.S. Customs and Border Protection
(CBP)shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions directly to CBP 15 days after the date of publication of the amended final results of this review, where injunctions are not in place. Further, the following cash-deposit requirements will be effective upon publication of these final amended results of the administrative review for shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of these final amended results, as provided by section 751(a)(2)(C) of the Act:
(1)for subject merchandise exported by Union, the cash-deposit rate will be 1.46 percent
(2)for Dongbu Steel Co., Ltd., Hyundai HYSCO, and Pohang Iron & Steel Company, Ltd., the cash deposit rate will remain as established in the *Final Results* . These deposit requirements shall remain in effect until further notice. These amended final results of administrative review and notice are issued and published in accordance with sections 751(a)(1) and (h), and 777(i)(1) of the Act, and 19 CFR 351.224. Dated: April 19, 2007. Joseph A. Spetrini, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-8016 Filed 4-25-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-533-845, A-580-858, A-588-868] Glycine from India, Japan, and the Republic of Korea: Initiation of Antidumping Duty Investigations AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: April 26, 2007. FOR FURTHER INFORMATION CONTACT: Scott Lindsay (India), Toni Page (Japan), or Dmitry Vladimirov and Janis Kalnins (Republic of Korea), AD/CVD Operations, Office 6 and Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-0780,
(202)482-1398,
(202)482-0665, or
(202)482-1392 respectively. SUPPLEMENTARY INFORMATION: The Petitions On March 30, 2007, the Department of Commerce (the Department) received petitions concerning imports of glycine from India ( *Indian Petition* ), Japan ( *Japanese Petition* ), and the Republic of Korea (Korea) ( *Korean Petition* ) (collectively, the Petitions), filed in proper form by Geo Specialty Chemicals, Inc. (Petitioner). *See* the Petitions for the Imposition of Antidumping Duties on Imports of Glycine from India, Japan, and the Republic of Korea filed on March 30, 2007. On April 5, 2007, the Department issued a request for additional information and clarification of certain areas of the Petitions. Based on the Department's request, Petitioner filed Petition Supplements on April 3, 12, 13, 17, and 18, 2007. In the April 18, 2007, Petition Supplement, Petitioner confirmed the final scope language. In addition, Petitioner submitted certain revisions to their cost calculations for India, Japan and Korea. We note that, although this revised cost data contained minor errors, Petitioner's revisions to that data were generally consistent with the revisions made by the Department. *See* “Cost of Production and Constructed Value section,” below. Also based on the Department's request, the Petitioner refiled certain submissions to correct
(1)the designation of information that may not be released under APO and
(2)their request for business proprietary treatment of certain information on April 10 and 13, 2007. In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), Petitioner alleges that imports of glycine from India, Japan, and Korea are being, or are likely to be, sold in the United States at less than fair value, within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Period of Investigation
(POI)In accordance with section 351.204(b) of the Department's regulations, because the petition was filed on March 30, 2007, the proposed period of investigation for India, Japan and Korea is January 1, 2006 through December 31, 2006, as this includes the four most recently completed fiscal quarters as of February 2007. Scope of the Investigations The merchandise covered by each of these three investigations is glycine, which in its solid ( *i.e.* , crystallized) form is a free-flowing crystalline material. Glycine is used as a sweetener/taste enhancer, buffering agent, reabsorbable amino acid, chemical intermediate, metal complexing agent, dietary supplement, and is used in certain pharmaceuticals. The scope of each of these investigations covers glycine in any form and purity level. Although glycine blended with other materials is not covered by the scope of each of these investigations, glycine to which relatively small quantities of other materials have been added is covered by the scope. Glycine's chemical composition is C 2 H 5 NO 2 and is normally classified under subheading 2922.49.4020 of the Harmonized Tariff Schedule of the United States (HTSUS). The scope of each of these investigations also covers precursors of dried crystalline glycine, including, but not limited to, glycine slurry ( *i.e.* , glycine in a non-crystallized form) and sodium glycinate. Glycine slurry is classified under the same HTSUS subheading as crystallized glycine (2922.49.4020) and sodium glycinate is classified under subheading HTSUS 2922.49.8000. While HTSUS subheadings are provided for convenience and Customs purposes, our written description of the scope of these investigations is dispositive. Comments on the Scope of the Investigations During our review of the Petitions, we discussed the scope with Petitioner to ensure that it is an accurate reflection of the products for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the regulations ( *Antidumping Duties; Countervailing Duties; Final Rule* , 62 FR 27296, 27323 (May 19, 1997)), we are setting aside a period for interested parties to raise issues regarding product coverage. The Department encourages all interested parties to submit such comments within 20 calendar days of the publication of this notice. Comments should be addressed to Import Administration's Central Records Unit (CRU), Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230. The period of scope consultations is intended to provide the Department with ample opportunity to consider all comments and to consult with parties prior to the issuance of the preliminary determinations. Determination of Industry Support for the Petitions Section 732(b)(1) of the Act requires that a petition be filed by an interested party on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if
(1)the domestic producers or workers who support the petition account for at least 25 percent of the total production of the domestic like product and
(2)the domestic producers or workers who support the petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for or opposition to the petition. Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether the petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission
(ITC)is responsible for determining whether “the domestic industry” has been injured and must also determine what constitutes a domestic like product in order to define the industry. While the Department and the ITC must apply the same statutory definition regarding the domestic like product, they do so for different purposes and pursuant to separate and distinct authority. *See* section 771(10) of the Act. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the domestic like product, such differences do not render the decision of either agency contrary to law. 1 1 *See USEC, Inc. v. United States* , 25 CIT 49, 55-56 (January 24, 2001) (citing *Algoma Steel Corp. v. United States* , 12 CIT 518 (June 8, 1988)). Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation,” *i.e.* , the class or kind of merchandise to be investigated, which normally will be the scope as defined in the petition. With regard to domestic like product, Petitioner does not offer a definition of domestic like product distinct from the scope of each investigation. Based on our analysis of the information submitted in the petitions, we have determined that the domestic like product consists of all grades of glycine, as well as sodium glycinate, which is defined in the “Scope of the Investigations” section above, and we have analyzed industry support in terms of the domestic like product. We received no expression of opposition to these petitions from any member of the domestic industry. Petitioner accounts for a sufficient percentage of the total production of the domestic like product, and the requirements of section 732(c)(4)(A) are met. Accordingly, the Department determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act. *See* “Office of AD/CVD Operations Initiation Checklist for the Antidumping Duty Petition on Glycine from India,” at Attachment II (April 19, 2007) ( *India AD Initiation Checklist* ), “Office of AD/CVD Operations Initiation Checklist for the Antidumping Duty Petition on Glycine from Japan,” at Attachment II (April 19, 2007) ( *Japan AD Initiation Checklist* ), and “Office of AD/CVD Operations Initiation Checklist for the Antidumping Duty Petition on Glycine from Korea,” at Attachment II (April 19, 2007) ( *Korea AD Initiation Checklist* ), on file in the CRU. Allegations and Evidence of Material Injury and Causation Petitioner alleges that the U.S. industry producing the domestic like product is materially injured, or is threatened with material injury, by reason of the individual and cumulated imports of the subject merchandise sold at less than normal value (NV). Petitioner contends that the industry's injured condition is illustrated by the decline in customer base, market share, domestic shipments, prices, financial performance, and lost sales. We have assessed the allegations and supporting evidence regarding material injury and causation, and we have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation. *See* the country-specific *Initiation Checklists* at Attachment III. Allegations of Sales at Less Than Fair Value The following is a description of the allegations of sales at less than fair value upon which the Department based its decision to initiate these investigations on imports of glycine from India, Japan, and Korea. The sources of data for the deductions and adjustments relating to the U.S. price as well as NV for India, Japan, and Korea are also discussed in the country-specific *Initiation Checklists* . Should the need arise to use any of this information as facts available under section 776 of the Act in our preliminary or final determinations, we will reexamine the information and revise the margin calculations, if appropriate. Export Price
(EP)Petitioner calculated EP using information from sales the company lost to Indian, Japanese, and Korean exporters. When based on lost sale prices, Petitioner adjusted U.S. prices for home market inland freight, international freight, U.S. inland freight, distributor mark-up, and credit expenses. *See Indian Petition* at page 28, *Japanese Petition* at page 30, and *Korean Petition* at pages 31-32. Petitioner also calculated EP from Korea using the free-on-board
(FOB)foreign-port average unit customs values
(AUVs)for 2006 for import data obtained from the U.S. International Trade Commission data website. Petitioner used the HTSUS subheading under which all three grades of subject merchandise (pharmaceutical, technical, and food) are imported (2922.49.4020). Petitioner provided shipment data from PIERS Global Intelligence Services for the same HTSUS subheading to demonstrate that most entries of glycine from Korea during 2006 were of “pure food grade” glycine. *See* Volume II of the Petitions at Exhibit DOC-15. Petitioner made an adjustment to the AUV-based EP from Korea for foreign inland freight. Revisions to Export Price
(EP)Based on our review of the information contained in the Petitions, we recalculated net EP (when based on a price quotation) by excluding an adjustment to EP for U.S. credit expenses. We also recalculated net EP (when based on a price quotation) by revising the reported amount associated with a distributor's mark-up to reflect the percentage mark-up. Petitioner stated that this mark-up was an average mark-up for glycine sales in the United States. *See* Volume II of the Petitions at Exhibits DOC-27 through DOC-29; also April 13, 2007, Petition Supplement at Exhibits L, M, and N. *See Initiation Checklists* . Normal Value
(NV)India and Japan Petitioner stated that, since it does not sell glycine in the Indian, Japanese, or Korean markets, it does not have specific knowledge of how glycine is sold, marketed, or packaged in those domestic markets. Petitioner was able to determine domestic Indian and Japanese prices for glycine by obtaining price quotations, through an economic consultant, from Indian and Japanese manufacturers of glycine. *See* memoranda “Telephone Call to Market Research Firm Regarding the Antidumping Petition on Glycine from India,” and “Telephone Call to Market Research Firm Regarding the Antidumping Petition on Glycine from Japan,” dated April 19, 2007. These price quotations identified specific terms of sale and payment terms. Petitioner made adjustments for home market credit for Indian sales. Petitioner did not make adjustment for home market credit to Japanese prices. *See* Volume II of the Petitions at Exhibits DOC-17-18 and 22-23. Revisions to Normal Value Based on our review of the information contained in the Petitions, we recalculated NV for India and Japan (when based on price quotations) by excluding the adjustment for home market and U.S. credit expenses. *See India AD Initiation Checklist* and *Japan AD Initiation Checklist* . Sales Below Cost Allegation for India and Japan Petitioner has provided information demonstrating reasonable grounds to believe or suspect that certain sales of glycine in India and Japan were made at prices below the fully absorbed cost of production (COP), within the meaning of section 773(b) of the Act, and has requested that the Department conduct country-wide sales below COP investigations. An allegation of sales below COP in a petition need not be specific to individual exporters or producers. *See* Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103-316, Vol. 1
(1994)at 833. Thus, Commerce will consider allegations of below-cost sales in the aggregate for a foreign country. *Id* . Further, section 773(b)(2)(A) of the Act requires that the Department have “reasonable grounds to believe or suspect” that below-cost sales have occurred before initiating such an investigation. Reasonable grounds exist when an interested party provides specific factual information on costs and prices, observed or constructed, indicating that sales in the foreign market in question are at below-cost prices. *Id* . As described in the section below on “Cost of Production and Constructed Value,” the Department calculated a country-specific COP for a certain grade of glycine for India and Japan. Based upon a comparison of price quotations for sales of that same grade glycine in India and Japan and the country-specific COP of the product, we find reasonable grounds to believe or suspect that sales of glycine in India and Japan were made below the COP, within the meaning of section 773(b)(2)(A)(i) of the Act. Accordingly, the Department is initiating country-wide cost investigations with regard to both India and Japan. Because it alleged sales below cost, pursuant to sections 773(a)(4), 773(b) and 773(e) of the Act, Petitioner also based NV for Indian and Japanese sales of a certain grade glycine on constructed value (CV). Korea Petitioner claimed that, despite extensive efforts to determine prices in Korea, it was not able to obtain usable price information for calendar year 2006 either for sales of glycine in Korea or for sales of glycine by Korean producers/exporters in third countries. *See e.g.* , *Korean Petition* at pages 27 and 35 and April 19, 2007; as well as Memorandum to File, “Telephone Call to Market Research Firm Regarding the Antidumping Petition on Glycine from Korea” (April 19, 2007). Consequently, Petitioner relied on COP and CV information in determining NV for Korea. *See* “Cost of Production and Constructed Value,” section below. Cost of Production and Constructed Value As noted above, Petitioner was unable to obtain usable price information for Korea; therefore, the appropriate basis for normal value for comparison to EP from Korea is CV. Also, as discussed above, Petitioner has established that certain sales of glycine in India and Japan were made at prices below the fully absorbed COP, within the meaning of section 773(b) of the Act. As such, CV was used for India and Japan when the home market prices for a certain grade glycine used in the cost comparisons fell below the COP. The calculation of COP and CV for each of the three countries is set forth below. India Pursuant to section 773(b)(3) of the Act, COP consists of the cost of manufacturing (COM); selling, general and administrative (SG&A) expenses; financial expenses; and packing expenses. To calculate the COM, Petitioner multiplied the usage quantity of each input needed to produce one metric ton
(MT)of glycine by the value of that input. Petitioner obtained all of the quantity and value data it used to calculate the COM from public sources. Petitioner obtained the input usage factors from the public record of the 1997-1998 administrative review of glycine from the People's Republic of China (PRC). The producer in the 1997-1998 review produced glycine by the same production method that producers in India use. The petitioner obtained the values for the inputs from various public sources. Petitioner calculated factory overhead, SG&A and the financial expense rate based on the Indian surrogate ratios that the Department used in the preliminary results of the 2005-2006 administrative review of glycine from the PRC. Where we used CV to determine NV, Petitioner added an amount for profit from the same financial statements. We adjusted Petitioner's calculation of SG&A to apply the rate to COM inclusive of factory overhead. We did not include a separate financial expense amount as petitioner did because the SG&A ratio already included financial expense. See the *India AD Initiation Checklist* for a full description of Petitioner's methodology and the adjustments the Department made to those calculations. Japan Pursuant to section 773(b)(3) of the Act, COP consists of COM; SG&A expenses; financial expenses; and packing expenses. To calculate the COM, Petitioner multiplied the usage quantity of each input needed to produce one MT of glycine by the value of that input. Petitioner obtained all of the quantity and value data it used to calculate the COM from public sources. As it did for the allegation involving India, Petitioner obtained the input usage factors from the public record of the 1997-1998 administrative review of glycine from the PRC. The producer in the 1997-1998 review produced glycine by the same production method that producers in Japan use. Petitioner obtained the values for the inputs from various public sources. Petitioner calculated average factory overhead, SG&A and the financial expense rate based on current financial statements of a Japanese producer of glycine. Where we used CV to determine NV, Petitioner added an amount for profit from the same financial statements. We adjusted Petitioner's calculation of SG&A to apply the rate to COM inclusive of factory overhead. *See Japan AD Initiation Checklist* for a full description of Petitioner's methodology and the adjustments the Department made to those calculations. Korea Petitioner calculated the Korean COP using the same methodology to calculate COM as it used for Japan and India. That is, Petitioner calculated the Korean COM by multiplying the usage quantity of each input needed to produce one MT of glycine by the value of that input. Petitioner obtained all of the quantity and value data it used to calculate the COM from public sources. Petitioner obtained the input usage factors from the public record of the 1997-1998 administrative review of glycine from the PRC. The respondent in the 1997-1998 Chinese review produced glycine by the same production method that producers in Korea use. Petitioner obtained the values for the inputs from various public sources. Petitioner calculated factory overhead, SG&A and the financial expense rate based on the financial statements of a Korean producer of lysine and threonine, amino acids which use production methods similar to glycine. Because Petitioner used CV for NV for Korea, it added an amount for profit in accordance with section 773(e)(2) of the Act. The profit rate was based on the financial statements of the same Korean producer of lysine and threonine. *See Korea AD Initiation Checklist* . We adjusted Petitioner's calculated factory overhead to eliminate double counting of depreciation and amortization. We applied the SG&A rate to COM inclusive of factory overhead. We also adjusted Petitioner's calculation of the financial expense ratio to include interest income as a reduction to financial expense. *See Korea AD Initiation Checklist* for a full description of Petitioner's methodology and the adjustments the Department made to those calculations. Fair Value Comparisons Based on the data provided by Petitioner, and adjusted by the Department as described above, there is sufficient basis to find that imports of glycine from India, Japan, and Korea are being, or are likely to be, sold in the United States at less than fair value. Based on comparisons of EP to home market prices and CV in India and Japan, and to CV for Korea, which were calculated in accordance with section 773(a)(4) of the Act, the dumping margins for glycine range from 5.67 to 121.62 percent for India, 70.21 to 280.57 percent for Japan, and 138.37 to 138.83 for Korea. Initiation of Antidumping Duty Investigations Based upon the examination of the Petitions on glycine from India, Japan, and Korea, the Department finds that the Petitions meet the requirements of section 732 of the Act. Therefore, we are initiating antidumping duty investigations to determine whether imports of glycine from India, Japan, and Korea are being, or are likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act, unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation. Distribution of Copies of the Petitions In accordance with section 732(b)(3)(A) of the Act, copies of the public versions of the Petitions have been provided to the representatives of the Governments of India, Japan, and Korea. We will attempt to provide a copy of the public version of the Petitions to the foreign producers/exporters named in the Petitions. International Trade Commission Notification We have notified the International Trade Commission of our initiations, as required by section 732(d) of the Act. Preliminary Determination by the International Trade Commission The International Trade Commission will preliminarily determine, no later than May 14, 2007, whether there is a reasonable indication that imports of glycine from India, Japan, and/or Korea are materially injuring, or threatening material injury to, a U.S. industry. A negative ITC determination with respect to any of the investigations will result in that investigation being terminated; otherwise, these investigations will proceed according to statutory and regulatory time limits. This notice is issued and published pursuant to section 777(i) of the Act. Dated: April 19, 2007. Joseph A. Spetrini, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-8017 Filed 4-25-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-357-818] Lemon Juice from Argentina: Preliminary Determination of Sales at Less Than Fair Value and Affirmative Preliminary Determination of Critical Circumstances AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: In response to a petition filed by Sunkist Growers, Inc. (Petitioner), the U.S. Department of Commerce (the Department) is conducting an antidumping duty investigation of sales to the United States of lemon juice from Argentina for the period July 1, 2005 through June 30, 2006. *See Notice of Initiation of Antidumping Duty Investigations: Lemon Juice from Argentina and Mexico* , 71 FR 61710 (October 19, 2006) ( *Initiation Notice* ). The Department preliminarily determines that lemon juice from Argentina is being, or is likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of the Tariff Act of 1930, as amended (the Act). The estimated margins of sales at LTFV are listed in the “Suspension of Liquidation” section of this notice. Moreover, we preliminarily determine that critical circumstances exist with regard to imports of lemon juice from Argentina. *See* the “Critical Circumstances” section below. Interested parties are invited to comment on this preliminary determination. EFFECTIVE DATE: April 26, 2007. FOR FURTHER INFORMATION CONTACT: Mark Hoadley or Joshua Reitze, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-3148, or
(202)482-0666, respectively. SUPPLEMENTARY INFORMATION: Case History This investigation was initiated on October 19, 2006. *See Initiation Notice* . Since the initiation of the investigation, the following events have occurred. On November 6, 2006, the United States International Trade Commission
(ITC)preliminarily determined that there is a reasonable indication that imports of the products subject to this investigation are materially injuring an industry in the United States producing the domestic like product. *See Lemon Juice from Argentina and Mexico* , 71 FR 66795 (November 16, 2006) ( *ITC Preliminary Determination* ). On November 7, 2006, the Department selected Citrusvil, S.A. (Citrusvil) and S.A. San Miguel A.G.I.C.y F. (San Miguel) as the respondents in this investigation. *See* “Respondent Selection” section below. On November 7, 2006, the Department issued a letter providing interested parties an opportunity to comment on a proposed set of model-match criteria. We received comments in response to this letter from Petitioner, Citrusvil, and San Miguel on November 13, 2006. Based on our analysis of these submissions, we determined the appropriate model-match characteristics. *See Memorandum to Barbara E. Tillman, Director, Office 6, and Laurie Parkhill, Director, Office 5, “Antidumping Duty Investigations of Lemon Juice from Argentina and Mexico: Selection of Model Matching Criteria”* (November 20, 2006). The Department issued sections A - D of the questionnaire to Citrusvil and San Miguel on November 20, 2006. 1 Citrusvil submitted its response to section A on December 18, 2007. Citrusvil submitted its response to sections B and C on January 17, 2007, and its section D response on January 22, 2007. San Miguel submitted its response to section A on December 14, 2006, responses to sections B and C on January 16, 2007, and its response to section D on March 12, 2007. 1 Section A of the questionnaire requests general information concerning a company's corporate structure and business practices, the merchandise under investigation that it sells, and the manner in which it sells that merchandise in all of its markets. Section B requests a complete listing of all home market sales, or, if the home market is not viable, of sales in the most appropriate third-country market (this section is not applicable to respondents in non-market economy
(NME)cases). Section C requests a complete listing of U.S. sales. Section D requests information on the cost of production
(COP)of the foreign like product and the constructed value
(CV)of the merchandise under investigation. On January 5, 2007, Petitioner submitted comments on Citrusvil's section A response. The Department issued a supplemental section A questionnaire to Citrusvil on January 16, 2007. We received Citrusvil's supplemental section A response on January 26, 2007. On January 31, 2007, Petitioner submitted a German-specific, sales-below-cost allegation. Citrusvil did not rebut this allegation. On February 1, 2007, we issued a supplemental section D questionnaire to Citrusvil, to which Citrusvil responded on February 23, 2007. On February 9, 2007, and again on March 6, 2007, Petitioner submitted comments on Citrusvil's section D response. On January 30, 2007, Petitioner submitted comments on Citrusvil's section B and C response. The Department issued a supplemental section B and C questionnaire to Citrusvil on February 5, 2007. We received Citrusvil's supplemental section B and C response on March 9, 2007. Citrusvil submitted corrections to its section B and C response on April 4, 2007. On February 9, 2007, Petitioner submitted comments concerning possible affiliation issues between Citrusvil and its German sales agent. On February 16, 2007, the Department sent a general supplemental questionnaire to Citrusvil, to which Citrusvil responded on March 12, 2007. On March 15, we sent Citrusvil a second supplemental section D questionnaire, to which Citrusvil responded on April 5, 2007. On March 23, 2007, we sent Citrusvil a request for additional sales information, to which Citrusvil partially responded on April 9, 2007. Petitioner submitted its comments on San Miguel's section A response on January 29, 2007. On January 12, 2007, the Department issued a supplemental section A questionnaire to San Miguel. Petitioner filed a sales-below-cost allegation on January 24, 2007 with respect to San Miguel's sales in Argentina. On February 23, 2007, Petitioner submitted comments to San Miguel's section B and C response. The Department issued a supplemental section A to San Miguel on January 16, 2007, supplemental sections B and C on January 31, 2007, and a supplemental section D on March 16, 2007. San Miguel responded to the supplemental section A on January 23, 2007, supplemental sections B and C on March 1, 2007, and supplemental section D on April 5, 2007. On February 1, 2007, Petitioner requested that the Department extend the preliminary determination in this investigation from February 28, 2007 to April 19, 2007. On February 16, 2007, the Department postponed the preliminary determination to April 19, 2007 pursuant to section 733(c) of the Act. *See Postponement of Preliminary Determinations of Antidumping Duty Investigations: Lemon Juice from Argentina and Mexico* , 72 FR 7606 (February 16, 2007). On March 26, 2007, April 9, 2007, and April 10, 2007, Petitioner submitted comments in anticipation of the preliminary determination. On March 16, 2007, the Department granted Petitioner an extension of time until March 27, 2007 to file its allegation of targeted dumping. On March 27, 2007, Petitioner submitted a targeted dumping allegation for San Miguel. On April 13, 2007, San Miguel submitted comments in response to Petitioner's allegation. Although this allegation was timely, the Department did not have sufficient time to fully analyze it for purposes of this preliminary determination pursuant to section 777A(d)(1)(B) of the Act. We intend to fully consider this issue for purposes of our final determination. Finally, on March 30, 2007, Petitioner alleged that critical circumstances existed with regard to imports of lemon juice from Argentina and Mexico. On April 4, 2007, the Department issued letters to Citrusvil and San Miguel, requesting that the respondents provide shipment data for purposes of the Department's critical circumstances inquiry. On April 11, 2007, Citrusvil and San Miguel submitted the requested shipment data. For further information on the Department's preliminary critical circumstances determination, *see* “Critical Circumstances” section below. Respondent Selection Section 777A(c)(1) of the Act directs the Department to calculate individual dumping margins for each known exporter and producer of the subject merchandise. Section 777A(c)(2) of the Act gives the Department discretion, when faced with a large number of producers/exporters, to limit its examination to a reasonable number of such companies if it is not practicable to examine all companies. Where it is not practicable to examine all known producers/exporters of subject merchandise, this provision permits the Department to investigate either
(A)a sample of exporters, producers, or types of products that is statistically valid based on the information available to the Department at the time of selection or
(B)producers/exporters accounting for the largest volume of the merchandise under investigation that can reasonably be examined. In the petition, Petitioner identified nine potential producers and exporters of lemon juice in Argentina: Citrusvil, San Miguel, Vicente Trapani S.A., Citromax S.A.C.I (Citromax), Litoral Citrus S.A., COTA S.A., La Moraleja S.A., Jugos Minerva (Molinos Rio de la Plata), and Jugos Minerva (S.C. Johnson & Son de Argentina S.A.I.C.). The Department determined that it was unable to investigate all nine of these named producers/exporters. *See Memorandum to Barbara E. Tillman, Director, Office 6, “Antidumping Duty Investigation on Lemon Juice from Argentina - Respondent Selection”* , (November 7, 2006) ( *Respondent Selection Memorandum* ). Based on our analysis of import data obtained from U.S. Customs and Border Protection (CBP), we selected two producers/exporters, Citrusvil and San Miguel as the mandatory respondents in this investigation because they were the largest Argentine producers/exporters of lemon juice to the United States, accounting for the vast majority of imports into the United States. For a complete analysis of the respondent selection, *see Respondent Selection Memorandum* . Therefore, pursuant to section 777A(c)(2)(B) of the Act, the Department has calculated individual dumping margins for each of the two selected producers/exporters. Period of Investigation The period of investigation
(POI)is July 1, 2005 through June 30, 2006. This period corresponds to the four most recent fiscal quarters prior to the month of filing of the petition ( *i.e.* , September 2006) involving imports from a market economy, and is in accordance with the Department's regulations. *See* 19 CFR 351.204(b)(1). Scope of Investigation The merchandise covered by this investigation includes certain lemon juice for further manufacture, with or without addition of preservatives, sugar, or other sweeteners, regardless of the GPL (grams per liter of citric acid) level of concentration, brix level, brix/acid ratio, pulp content, clarity, grade, horticulture method ( *e.g.* , organic or not), processed form ( *e.g.* , frozen or not-from-concentrate), FDA standard of identity, the size of the container in which packed, or the method of packing. Excluded from the scope are:
(1)lemon juice at any level of concentration packed in retail-sized containers ready for sale to consumers, typically at a level of concentration of 48 GPL; and
(2)beverage products such as lemonade that typically contain 20%% or less lemon juice as an ingredient. Lemon juice is classifiable under subheadings 2009.39.6020, 2009.31.6020, 2009.31.4000, 2009.31.6040, and 2009.39.6040 of the Harmonized Tariff Schedule of the United States (HTSUS). While HTSUS subheadings are provided for convenience and U.S. Customs and Border Patrol purposes, our written description of the scope of this investigation is dispositive. Scope Issue In the *Initiation Notice* , the Department set aside a period for parties to submit comments on the scope of the investigations on Argentina and Mexico. On November 1, 2006, Citromax submitted comments stating that organic lemon juice should be excluded from the scope of the investigations. On November 8, 2006, Petitioner responded to Citromax's November 1, 2006, scope comments, arguing that organic lemon juice should remain within the scope of the investigations. On March 21, 2007, the Department issued a decision that organic lemon juice is included within the scope of the investigations on lemon juice from Argentina and Mexico. For a detailed discussion of our decision, *see Memorandum to Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, “Scope Issue in the Antidumping Duty Investigations on Lemon Juice from Argentina and Mexico”* (March 21, 2007). Date of Sale It is the Department's practice to use invoice date as the date of sale. However, the Secretary “may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale.” *See* 19 CFR 351.401(i); *see also Allied Tube and Conduit Corp. v. United States* , 132 F. Supp. 2d 1087, 1090-92 (CIT 2001). Citrusvil reported date of purchase order as the date of sale for all sales in the U.S. market that involved purchase orders; otherwise, it reported invoice date. *See* Citrusvil January 17, 2007, section B and C response at C-7. Citrusvil reported contract date for all sales to Germany 2 that involved short- or long-term contract agreements; for the remaining sales, Citrusvil reported purchase order date as date of sale. *See* Citrusvil January 17, 2007 section B and C response at B-7. Citrusvil reported that these dates were the earliest dates on which the material terms of sale ( *i.e.* , price and quantity) were fixed, and that these terms never change after these dates. Because the material terms of sale are established when the purchase order is issued or contracts are signed, and because Citrusvil has stated that the terms of sale never changed after they were established, we are using the dates of sale as reported by Citrusvil. 2 We have preliminarily determined that Germany is Citrusvil's comparison market. *See* “Selection of Comparison Market” section below. San Miguel reported invoice date as date of sale for all sales in both markets, stating that the material terms of sale indicated in other documents sometimes change before invoices are issued. It provided two examples of such changes. First, it referred to a purchase order issued by a U.S. customer requiring multiple shipments. This customer later requested that San Miguel cancel some of the shipments ordered. While San Miguel agreed and these shipments were therefore never shipped nor invoiced, the fact that the buyer felt compelled to ask San Miguel to cancel indicates that the parties considered the purchase order binding. In the second example, San Miguel reached an agreement via email regarding the per-unit price of shipments to a U.S. customer, but the price stated in the purchase order, issued subsequent to the exchange of emails, is different from that indicated in the email agreement. However, this change occurred between the date of an email agreement and the resulting purchase order, not between the purchase order and invoice. *See* San Miguel March 1, 2007 supplemental section B and C response, at 2-4. Accordingly, we preliminarily find that the two examples of changes in material terms of sale prior to invoice provided by San Miguel are not sufficient to show actual changes in material terms between purchase order date and invoice date, nor do they support a conclusion that the parties at issue consider purchase orders to be non-binding. Moreover, San Miguel's description of its production and distribution process indicates that the use of invoice date as date of sale for all sales may be distortive, given the significant lag time between purchase order date and invoice date. The record indicates that invoices can be issued up to several months after purchase orders are received. As such, the material terms of sale are set much earlier in the process than invoice date would indicate. Thus, for all sales involving purchase orders to the United States and comparison markets, the Department preliminarily determines that purchase order is the appropriate date of sale, as the evidence on the record demonstrates that the material terms of sale set forth in the purchase orders are not subject to change. For sales in which a purchase order is not generated, we will use the earliest of shipment or invoice date. Because purchase order date is not yet on the record for all sales reported by San Miguel, we are using the earliest of shipment or invoice date as date of sale for purposes of this preliminary determination. The Department has requested that San Miguel provide, prior to verification, revised U.S. and comparison market sales databases using purchase order date as date of sale. Fair Value Comparisons To determine whether sales of lemon juice to the United States were made at LTFV, we compared export price
(EP)or constructed export price
(CEP)to normal value
(NV)or constructed value (CV), as described in the “U.S. Price,” “Normal Value,” and “Constructed Value” sections below. U.S. Price Section 772(a) and
(b)of the Act defines EP and CEP: The term “export price” means the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c). The term “constructed export price” means the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter, as adjusted under subsections
(c)and (d). For purposes of this investigation, Citrusvil classified all of its U.S. sales as CEP sales. Citrusvil stated that, although it is not affiliated with any companies in the United States, its sales occurred after importation into the United States and are thus CEP sales. The record evidence indicates, however, that, based on purchase order date, Citrusvil's sales to the United States were made prior to importation. Accordingly, we preliminarily determine that all of Citrusvil's U.S. transactions were EP sales. We calculated the EP for Citrusvil in accordance with section 772(c)(2) of the Act. We made appropriate deductions from gross unit price for Argentine inland freight and warehousing, Argentine brokerage and handling, international freight and insurance, U.S. brokerage and handling, U.S. freight and warehousing, U.S. duties, a fee paid to the regional government of Tucuman, and an export tax paid to the Argentine government. *See Analysis Memorandum for Lemon Juice from Argentina: Citrusvil* , April 19, 2007 ( *Citrusvil Analysis Memorandum* ). San Miguel reported that most of its U.S. sales took place prior to importation. It noted, however, that a small number of those sales were made after importation. According to San Miguel, these sales were made to the U.S. customer out of inventory held in a refrigerated warehouse located in the United States. Thus, because these sales were made after importation, they cannot be classified as EP sales and we are treating them as CEP sales. We calculated the EP for San Miguel in accordance with section 772(c)(2) of the Act. We made appropriate deductions for billing adjustments (or added billing adjustments in some cases), Argentine inland freight and warehousing, Argentine brokerage and handling, international freight and insurance, U.S. brokerage and handling, U.S. freight and warehousing, U.S. duties, a fee paid to the regional government of Tucuman, and an export tax paid to the Argentine government. San Miguel claimed another U.S. price adjustment: a per-sale reimbursement received from the Argentine government under its Reintegro program. In past proceedings involving merchandise from Argentina, we have accounted for these reimbursements by making an adjustment to cost of manufacturing (COM), and will do so here as well. *See* , *e.g.* , *Notice of Final Results and Recision in Part of Antidumping Duty Administrative Review; Oil Country Tubular Goods, Other Than Drill Pipe, From Argentina* , 68 FR 13262, 13263 (March 19, 2003), and accompanying *Issues and Decision Memorandum* at *Comment 5* ; *Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Cold-Rolled Carbon Steel Flat Products From Argentina* , 67 FR 62138 (October 3, 2002), and accompanying *Issues and Decision Memorandum* at *Comment 1* . We calculated CEP for the small number of San Miguel's sales as discussed above in accordance with section 772(d)(1) of the Act. For CEP, we would normally deduct direct selling expenses and indirect selling expenses related to commercial activity in the United States in accordance with section 772(d)(1) of the Act; however, for San Miguel we only made a deduction for its credit expenses. These credit expenses covered the time between the date of shipment from Buenos Aires until the date payment was received. Deducting U.S. inventory carrying costs would impermissibly double count a portion of these credit expenses, because the number of days between date of shipment from Buenos Aires and payment date includes the number of days the CEP sales spent in U.S. inventory. *See* 19 CFR 351.401(b)(2). Also, because there was no affiliate acting on San Miguel's behalf in the United States, there are no U.S. indirect selling expenses to deduct, except for a few sales involving commissions paid to unaffiliated parties (in which case we deducted commissions from the U.S. price). All expenses related to the U.S. warehousing of these CEP sales are accounted for in the U.S. warehousing expense field reported by San Miguel and deducted from price as a movement expense. *See Analysis Memorandum for Lemon Juice from Argentina: San Miguel* , April 19, 2007 ( *San Miguel Analysis Memorandum* ). Normal Value A. Selection of Comparison Market Section 773(a)(1) of the Act directs the Department to calculate NV based on the price at which the foreign like product is first sold in the home market, provided that the merchandise is sold in sufficient quantities (or value, if quantity is inappropriate), and that there is no particular market situation that prevents a proper comparison with the export price. Under the statute, the Department will normally consider quantity (or value) insufficient if it is less than five percent of the aggregate quantity (or value) of sales of the subject merchandise to the United States. *See* section 773(a)(1)(C) of the Act. Citrusvil's sales in Argentina were less than five percent of its sales to the United States; therefore, we found that Citrusvil did not have a viable home market for lemon juice to serve as the basis for comparison market sales in accordance with section 773(a)(1)(C) of the Act and 19 CFR 351.404. Citrusvil reports that it makes sales throughout Europe either to exclusive sales agents who then sell to unaffiliated customers (channel 1) or through the same exclusive agents to unaffiliated customers (channel 2). *See* Citrusvil December 18, 2006 section A response at 2, 11. In both sales channels, Citrusvil controls the terms of sale which normally are made on a Free Carrier
(FCA)Rotterdam basis. Under FCA sales terms, title and risk transfer from Citrusvil to the agent who collects payment from (and releases the merchandise to) the ultimate customer in sales designated as channel 1 by Citrusvil. In sales designated as channel 2 sales by Citrusvil, title and risk transfer directly to the unaffiliated customers after that customer pays Citrusvil. *See* Citrusvil January 17, 2007, section B and C response, at B-8. In both sales channels, it appears that the customer (rather than Citrusvil) is responsible for any inland delivery within Europe. To determine the most appropriate third country market for comparison purposes, the Department examined the record evidence, including statements by Citrusvil. Initially Citrusvil claimed that it does not know with certainty to which European country its product is ultimately delivered. However, Citrusvil also stated that it believes the address on its invoice is the best indication of where the merchandise is ultimately delivered, and that customers with facilities in more than one country request that the invoice be issued to the address where the product is delivered. *See* Citrusvil December 18, 2006 section A response, at A-2. Because the information we have gathered with respect to Citrusvil and its agents indicates that at the time of price and quantity negotiations, Citrusvil has knowledge of the first unaffiliated customer and the country in which such customer is located, we believe that it is appropriate to classify the sales shipped to Rotterdam based on the customer and its country of location. Classifying the sales as described above, we find that Germany is Citrusvil's largest third country market for sales of foreign like product. We further find that there are no significant differences in product comparability with respect to Citrusvil's sales to Germany and sales to other third country markets and merchandise sold to the United States. As such, we preliminarily determine that Germany is the appropriate comparison market. *See* “Calculation of Normal Value Based on Comparison Market Prices” and “Calculation of Normal Value Based on Constructed Value” sections below. San Miguel's sales of lemon juice in Argentina were sufficient to find the home market a viable for comparison purposes. Accordingly, we calculated NV for San Miguel based on sales prices to Argentine customers. *See* “Calculation of Normal Value Based on Comparison Market Prices” and “Calculation of Normal Value Based on Constructed Value” sections below. B. Cost of Production Analysis In the petition, Petitioner alleged that Argentine producers/exporters made sales in the comparison market at less than the cost of production (COP). In the allegation, Petitioner used the Netherlands as the comparison market, arguing that Argentina was not a viable market. Based on these allegations, and in accordance with section 773(b)(2)(A)(i) of the Act, we found reasonable grounds to believe or suspect that lemon juice sales were made in the comparison market at prices below the COP and initiated a country-wide sales-below-cost investigation. *See Initiation Notice* . After reviewing Citrusvil's section A response, we determined that Citrusvil's sales to Argentina did not meet the viability threshold. Based on the section A response, however, it was unclear what the appropriate third-country comparison market was. As reported by Citrusvil, virtually all of its sales to Europe are shipped FCA Rotterdam. It claimed Germany as the proper comparison market based on the volume of sales to customers located in Germany. As discussed above, the Department has now determined that Germany is the most appropriate third-country market for comparison purposes. Although the sales-below-cost allegation from the petition involved shipments to the Netherlands-including, presumably, merchandise subsequently shipped to Germany-we informed the parties that the sales-below-cost allegation in the petition was still viable. *See Letter from the Department to Citrusvil* (December 22, 2007) stating that the “allegation was made using shipment data to Rotterdam. The Rotterdam data did not exclude transhipments to other points in Europe, and thus should have included any transhipments to Germany.” Citrusvil did not object to this request and submitted section D of its questionnaire response on January 22, 2007. Further, as noted above in the “Case History” section of this notice, on January 31, 2007, Petitioner submitted a German-specific, sales-below-cost allegation, which Citrusvil did not rebut. The petition compared COP to the FOB Rotterdam value of shipments to the Netherlands. Citrusvil reports that it ships virtually everything sold to all countries in Europe to the Netherlands, on an FCA basis, at which point the product is claimed by customers and transported to different countries in Europe. Germany is the location of the customer for most of these shipments. Thus, because sales to Germany are subsumed in any shipments to the Netherlands, the petition allegation covered sales to Germany. As such, there was sufficient evidence on the record to continue our sales-below-cost investigation once we had determined that Germany was the appropriate comparison market. This decision is consistent with Department precedent. *See* , *e.g.* , *Preliminary Determination of Sales at Less Than Fair Value; Aramid Fiber Formed of Poly-Phenylene Terephthalamide From the Netherlands* , 58 FR 65699 (December 16, 1993) unchanged in the final determination, ( *Notice of Final Determination of Sales at Less Than Fair Value: Aramid Fiber Formed of Poly-Phenylene Terephthalamide From the Netherlands* , 59 FR 23684 (May 6, 1994)), in which the Department “reanalyzed petitioner's sales below cost allegation in light of our determination” that the Netherlands was not the proper comparison market, and determined that there was “sufficient evidence on the record to continue our sales below cost investigation.” After reviewing San Miguel's section A response, we determined that Argentina was in fact a viable market for that company, and notified parties that the previous sales-below-cost allegation was no longer viable for San Miguel. *See Letter from the Department to San Miguel* (December 20, 2007). Petitioner subsequently filed a timely new sales-below-cost allegation on January 24, 2007 with respect to San Miguel's sales in Argentina. After determining that the new allegation demonstrated reasonable grounds to believe that San Miguel's sales in Argentina were below cost, we initiated a new sales-below-cost investigation of that company. *See Memorandum to Barbara E. Tillman, Director, Office 6, “Petitioner's Allegation of Sales Below the Cost of Production for S.A. San Miguel A.G.I.C.I.y F.”* (February 12, 2007). 1. Calculation of Cost of Production In accordance with section 773(b)(3) of the Act, we calculated a weighted-average COP based on the sum of the cost of materials and fabrication for the foreign like product, plus amounts for the home market general and administrative (G&A) expenses, including interest expenses and packing expenses. For Citrusvil, we relied on the COP data submitted in its cost questionnaire responses, except as noted below: • We adjusted the fresh lemon input costs to value the lemons transferred from the packing to processing plant at the average fresh lemon cost actually incurred or paid based on the company's normal books and records. • For reporting to the Department, Citrusvil allocated fresh lemon costs to lemon co-products using a net realizable value
(NRV)methodology. We note that an NRV methodology relies upon relative sales values at the split off point ( *i.e.* , when separate products are first identifiable in the production process) as a means of allocating joint costs when multiple products are processed simultaneously from the same raw material. However, because the fresh lemon cost allocation is based on sales values and because the Petitioner has alleged that Citrusvil's POI sales values may not represent a fair value for the merchandise under consideration, we revised the company's reported allocation to rely upon sales data prior to the POI, *i.e.* , a period for which no allegation of dumping has been lodged (in this case, July 1, 2004 to June 30, 2005). • We revised the reported G&A expense rate to include other operating expenses. For further details regarding these adjustments, *see Memorandum to Neal M. Halper, Director, Office of Accounting, “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Determination - Citrusvil, S.A.”* (April 19, 2007) ( *Citrusvil COP Memo* ). For San Miguel, we relied on the COP data submitted in its cost questionnaire responses, except as noted below: • We revised San Miguel's reported lemon costs. For self-grown lemons, we allocated the growing costs to the lemons based on volume. For self-grown and purchased lemons harvested by San Miguel, we valued the harvesting costs at the actual costs incurred by San Miguel. For purchased lemons either harvested by San Miguel or delivered by the suppliers, we used the actual POI average purchase price. • We recalculated the by-product offset amount by using the POI production quantities instead of the POI sales quantities • For reporting to the Department, San Miguel allocated fresh lemon costs to lemon co-products using an NRV methodology. Because the fresh lemon cost allocation is based on sales values and because the Petitioner has alleged that San Miguel's POI sales values may not represent a fair value for the merchandise under consideration, we revised the company's reported allocation of fresh lemon costs and indirect processing costs to co-products, which was based on the POI sales data, to reflect sales data prior to the POI (in this case, July 1, 2004 to June 30, 2005). • We used San Miguel's company-wide G&A and net financial expense rates instead of the industrial division's G&A and net financial expense rates. • We revised the company-wide G&A and net financial expense rates by deducting by-product revenues and packing expenses from the cost of sales denominator. • We made a deduction to COM for estimated Reintegro rebates received by San Miguel. For further details regarding these adjustments, *see Memorandum to Neal M. Halper, Director, Office of Accounting, “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Determination - San Miguel”* (April 19, 2007) ( *San Miguel COP Memo* ). 2. Test of Comparison Market Sales Prices We compared the weighted-average COPs for both companies to their comparison market sales prices of the foreign like product, under section 773(b) of the Act, to determine whether these sales had been made at prices below the COP within an extended period of time ( *i.e.* , a period of one year) in substantial quantities, and whether such prices were sufficient to permit the recovery of all costs within a reasonable period of time. On a model-specific basis, we compared the COP to the German (for Citrusvil) and Argentine (for San Miguel) market prices, less any applicable movement charges, discounts, rebates, and direct and indirect selling expenses (excluding imputed expenses), commissions, and packing. 3. Results of the COP Test Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of the respondent's sales of a given product during the POI are at prices less than the COP, we do not disregard any below- cost sales of that product, because we determine that in such instances the below-cost sales were not made in substantial quantities. Where 20 percent or more of the respondent's sales of a given product during the POI are at prices less than the COP, we determine that the below-cost sales represent substantial quantities within an extended period of time, in accordance with section 773(b)(1)(A) of the Act. In such cases, we also determine whether such sales were made at prices which would not permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(1)(B) of the Act. We found that more than 20 percent of Citrusvil's comparison market sales of a given product during the POI were at prices below the COP, and, in addition, the below-cost sales of the product were at prices which would not permit recovery of all costs within a reasonable time period, in accordance with section 773(b)(2)(D) of the Act. We therefore excluded these sales and used the remaining sales, if any, as the basis for determining NV, in accordance with section 773(b)(1) of the Act. We also found that more than 20 percent of San Miguel's comparison market sales of a given product during the POI were at prices below the COP, and, in addition, the below-cost sales of the product were at prices which would not permit recovery of all costs within a reasonable time period, in accordance with section 773(b)(2)(D) of the Act. We therefore excluded these sales and used the remaining sales, if any, as the basis for determining NV, in accordance with section 773(b)(1) of the Act. C. Calculation of Normal Value Based on Comparison Market Prices Citrusvil Citrusvil has an exclusive sales agreement with its agent in the German market. Due to the nature of the arrangement between the two companies, pursuant to section 771(33)(g) of the Act, we preliminarily find that Citrusvil and its agent are affiliated via an agent-principle agreement/relationship. *See* , *e.g.* , *Stainless Steel Sheet and Strip in Coils from Taiwan: Final Results and Partial Rescission of Antidumping Duty Administrative Review* , 67 FR 6682 (February 13, 2002) and accompanying *Issues and Decision Memorandum* at *Comment 23* , upheld in *Chia Far Industrial Factory Co. v. United States* , 343 F. Supp. 2d 1344, 1356 (CIT 2004) (“when there exists a principal who has the potential to control pricing and/or the terms of sale through the end-customer, Commerce will find agency and thus affiliation”). Thus, the appropriate sales for comparison purposes in this investigation are the sales from Citrusvil to the first unaffiliated customers in Germany. Since much of our analysis with respect to the relationship between Citrusvil and its agent involves business proprietary information, a full discussion of the bases for our finding of affiliation is set forth in the *Citrusvil Analysis Memorandum* . For those sales made directly to the customer, with Citrusvil's agent acting as intermediary (the channel 2 sales described in the “Selection of Comparison Market” section above), the price charged by Citrusvil to the customer is the starting price. Pursuant to section 773(a)(6)(B) of the Act, we deducted home market freight, warehousing and insurance expenses. We also made circumstances of sale
(COS)adjustments reflecting differences between direct selling expenses (credit expense) incurred on third-country and U.S. sales, in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. We also made adjustments for any differences in packing between domestic and U.S. sales, pursuant to section 773(a)(6)(B)(ii) of the Act, and any differences between the variable costs of the U.S. product and the matching home market product (the “DIFMER” adjustment), pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. For sales made by Citrusvil to its affiliated agent (the channel 1 sales described in the “Selection of Comparison Market” section above), which in turn sells to the first unaffiliated customer, we find that Citrusvil failed to provide the correct downstream sales information. Section 776(a)(2) of the Act provides that if an interested party or any other person:
(A)withholds information that has been requested by the administering authority;
(B)fails to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and
(e)of section 782 of the Act;
(C)significantly impedes a proceeding under this title; or
(D)provides such information but the information cannot be verified as provided in section 782(i) of the Act, the Department shall, subject to section 782(d) of the Act, use the facts otherwise available in reaching the applicable determination under this title. In applying facts otherwise available, section 776(b) of the Act provides that the Department may use an inference adverse to the interests of a party that has failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information. *See* , *e.g.* , *Notice of Final Determination of Sales at Less Than Fair Value and Final Negative Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from Brazil* , 67 FR 55792, 55794-96 (August 30, 2002). With respect to adverse inferences, our practice, as reflected in the Statement of Administrative Action, is “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” *See* Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103-316,
(1994)(“SAA”) at 870. Furthermore, “affirmative evidence of bad faith on the part of a respondent is not required before the Department may make an adverse inference.” *See Nippon Steel Corp. v. United States* , 337 F.3d 1373, 1377 (Fed. Cir. 2003); *Antidumping Countervailing Duties: Final Rule* , 62 FR 27296, 27340 (May 19, 1997). With respect to Citrusvil's channel 1 sales to Germany, we preliminarily find that the application of facts otherwise available is appropriate. The Department's original questionnaire, issued to Citrusvil on November 20, 2006, states that “if you sold to an affiliate that resold the merchandise to an unaffiliated party in the comparison market, report the affiliate's resales during the POI to unaffiliated customers rather than your sales to the affiliate.” *See* Department November 20, 2006, questionnaire, at B-2. On February 9, 2007, Petitioner argued that it appeared that Citrusvil might be affiliated with its German agent. On February 16, 2007, we issued a supplemental questionnaire in which we requested more detailed information on the relationship between Citrusvil and its German agent. *See* Department February 16, 2007, General Supplemental questionnaire, at 1-3. Based on Citrusvil's response and our analysis of the agreement, there was sufficient information to indicate affiliation. On March 23, 2007, in an additional supplemental questionnaire to Citrusvil, the Department specifically requested that Citrusvil report the downstream sales of its German sales agent. On April 6, 2007, Citrusvil responded that it was not able to obtain the requested information from its agent. Citrusvil explained that it made several attempts (including phone calls and e-mails) to convince its agent to supply the requested information. However, Citrusvil reported that its agent was not willing to open its books to foreign authorities. *See* Citrusvil April 6, 2007, third supplemental section B and C response, at Exhibit 1. The use of facts available is warranted under 776(a)(2)(A) of the Act as Citrusvil and its affiliated agent have withheld information requested by the Department. Moreover, in accordance with section 776(b) of the Act, we have applied an adverse inference for purposes of calculating Citrusvil's channel 1 prices in Germany. The record of this investigation shows that Citrusvil has sufficient control over its agent and the sales at issue to comply with our request for channel 1 sales information. *See* Citrusvil March 12, 2007, Second Supplemental section B and C response, at Exhibit 2. These parties are bound through an exclusive principle-agent relationship, and Citrusvil has indicated on the record that it controls the final terms of all sales involving its agent, including channel 1 sales. *See* Citrusvil January 26, 2007, Supplemental section A response, at Exhibit 5. Moreover, while Citrusvil argues that it made every effort to obtain the necessary information, it failed to submit any documentary evidence to support its claims. For example, in its April 6, 2007, submission Citrusvil states that it sent e-mails to its agent regarding the need for this information, but did not submit copies of any such e-mails on the record of this proceeding. The Department has consistently demonstrated willingness to accommodate Citrusvil's difficulties in collecting requested information in a timely manner throughout the course of this proceeding. In fact, the Department granted Citrusvil an extension to submit the downstream sales at issue. *See Letter from the Department to Citrusvil* (April 2, 2007). Citrusvil, however, failed to provide the downstream sales information by the extended deadline and failed to substantiate its claims that it made significant efforts to obtain the information. Therefore, we conclude that Citrusvil has not cooperated to the best of its ability with respect to channel 1 sales, and thus, pursuant to section 776(b) of the Act, we have used an adverse inference in selecting among the facts available with respect to such sales. Specifically, we have used the highest net price per control number (CONNUM) as the basis for normal value for all channel 1 sales. Because much of our analysis involves business proprietary information, a full discussion of the bases for our finding of affiliation and the specific application of partial adverse facts available is set forth in the *Citrusvil Analysis Memorandum* . As a result, for such sales, the Department has relied on facts available with an adverse inference. As AFA, to determine NV for these sales, the Department has used the highest NV per CONNUM in lieu of the price paid to Citrusvil's agent. The Department intends, however, following this preliminary determination, to provide an additional opportunity to Citrusvil to submit the requested sales information to the first unaffiliated customer in Germany. San Miguel For San Miguel, starting with prices paid by its Argentine customers, we added or subtracted billing adjustments, where appropriate, and subtracted early payment discounts, Argentine inland freight, warehousing, and insurance expenses, and a fee paid to the regional government of Tucuman. For home market sales compared to EP sales, we made COS adjustments for differences between credit expenses incurred on Argentine and U.S. sales in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. In accordance with section 772(c)(2) of the Act, for home market sales compared to CEP sales, we only deducted Argentine credit expenses from home market price, because U.S. credit expenses were deducted from U.S. price, as noted above. We also made adjustments for any differences in packing between domestic and U.S. sales and for DIFMER pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. D. Calculation of Normal Value Based on Constructed Value Section 773(a)(4) of the Act provides that, where NV cannot be based on comparison market sales, NV may be based on constructed value (CV). Accordingly, for sales of lemon juice for which we could not determine the NV based on comparison market sales, either because there were no useable sales of a comparable product or all sales of the comparable products failed the COP test, we based NV on CV. Section 773(e) of the Act provides that CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise, plus amounts for SG&A expenses, profit, and U.S. packing costs. We calculated the cost of materials and fabrication based on the methodology described in the “Cost of Production Analysis” section, above. We based SG&A, interest expense, and profit on the actual amounts incurred and/or realized in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the comparison market, in accordance with section 773(e)(2)(A) of the Act. For comparison with EP sales, we made adjustments to CV for differences in COS in accordance with section 773(a)(6)(C)(iii) and 773(a)(8) of the Act and 19 CFR 351.410. For CV compared to CEP sales, we only deducted domestic direct selling expenses from home market price, as U.S. direct selling expenses were deducted from U.S. price, as noted above. E. Level of Trade In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determine NV based on sales in the home market at the same level of trade
(LOT)as U.S. sales. *See* 19 CFR 351.412. The NV or CV LOT is the level of the starting-price sale in the home market or comparison market. For EP, the U.S. LOT is based on the starting price, which is usually from the exporter to the importer. To determine whether NV sales are at a different LOT than EP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer in the home market in accordance with 19 CFR 351.412(c). *See* , *e.g.* , *Light-Walled Rectangular Pipe and Tube From Mexico: Notice of Final Determination of Sales at Less Than Fair Value* , 69 FR 53677 (September 2, 2004), and accompanying *Issues and Decisions Memorandum* at *Comment 14* . If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. In the current investigation, Citrusvil claimed one LOT in the German market and one similar LOT in the U.S. market. Citrusvil did not request an LOT adjustment. Citrusvil maintains that its selling functions do not vary by market. Citrusvil's narrative description of its sales and distribution process indicate that its sales functions involve inventory maintenance, freight service arrangements, advertising, negotiating sales terms, and arranging for domestic and foreign warehousing. It did not indicate a significant variance, however, among these common expense items according to market, channel of distribution, customer, or some other variable, nor do we see any reason to conclude that there is such variance. *See* Citrusvil December 18, 2006 section A response, at A-13. Based on the selling functions performed, we preliminarily determine that Citrusvil did not sell at different LOTs in the German and U.S. markets. After examining the selling functions for the one LOT reported in the United States, and the one reported LOT reported in the German market, we determine that these sales were all made at the same LOT. San Miguel claimed one LOT in the Argentine market and one LOT in the U.S. market. San Miguel did not request an LOT adjustment. Given the selling functions chart submitted by San Miguel and its narrative description of its sales and distribution process, it would appear its significant sales functions involve negotiating sales and delivery, providing customer-specific packaging, arranging transportation, and arranging for domestic and foreign warehousing. It did not indicate a significant variance, however, among these common expense items according to market, channel of distribution, customer, or some other variable, nor do we see any reason to conclude that there is such variance. *See* San Miguel December 14, 2006, section A response, at A-15 - A-19. After examining the selling functions for the one LOT reported in the United States, and the one reported LOT reported in the Argentine market, we determine that these sales were all made at the same LOT. Currency Conversions We made currency conversions into U.S. dollars in accordance with section 773A of the Act based on exchange rates in effect on the dates of the U.S. sales, as obtained from the Federal Reserve Bank (the Department's preferred source for exchange rates). Critical Circumstances On March 30, 2007, Petitioner filed a timely allegation pursuant to section 733(e) of the Act that critical circumstances exist in the antidumping duty investigations of lemon juice from Argentina and Mexico. In addition, Petitioner requested that the Department request CBP to compile information on an expedited basis regarding entries of subject merchandise. *See* 19 CFR 351.206(g). In its allegation, Petitioner contends that there is a reasonable basis to believe or suspect that critical circumstances exist with respect to lemon juice from Argentina because the importers in this case knew or should have known that exporters were selling lemon juice at less than fair value and that there was likely to be material injury by reason of such sales; and that there have been a massive imports of lemon juice over a relatively short period. Since this allegation was filed at least 20 days prior to the deadline for the Department's preliminary determination, we must issue our preliminary critical circumstances determination not later than the date of the preliminary determination. *See* 19 CFR 351.206(c)(2)(i); *see also* Policy Bulletin 98.4; “Change in Policy Regarding Timing of Issuance of Critical Circumstances Determinations” (63 FR 55364 (October 15, 1998)) for a further discussion of our practice. Petitioner contends that, in determining whether there is a reasonable basis to believe or suspect that an importer should have known that the exporter was selling lemon juice from Argentina at less than fair value, the Department normally considers margins of 25 percent or more for EP sales and 15 percent or more for CEP transactions sufficient to impute knowledge of dumping. *See* , *e.g.* , *Notice of Preliminary Determination of Sales at Less Than Fair Value and Affirmative Preliminary Determination of Critical Circumstances: Wax and Wax/Resin Thermal Transfer Ribbons From Japan* , 68 FR 71072, 71076-77 (December 22, 2003) unchanged in the final determination, ( *Notice of Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances: Wax and Wax/Resin Thermal Transfer Ribbons From Japan* , 69 FR 11834 (March 12, 2004)). Petitioner contends that the estimated dumping margin from the initiation of 102.46 for Argentina is well above the 25 percent sufficient to impute knowledge. *See Initiation Notice* . Petitioner contends that, in determining whether there have been massive imports, the Department normally considers imports during the comparison period that have increased 15 percent or more compared to the base period to be massive. *See* 19 CFR 351.206(h)(2). The petition for this case was filed on September 21, 2006. Petitioner provided import data from the ITC's “Dataweb” (http://dataweb.usitc.gov/) comparing subject imports in July through September 2006 to subject imports in the period October through December 2006. Petitioner calculated that subject imports from Argentina surged 147 percent. *See* Petitioner's March 30, 2007 Critical Circumstances Allegation at 5, Exhibit 1. Section 733(e)(1) of the Act provides that the Department will preliminarily determine that critical circumstances exist if there is a reasonable basis to believe or suspect that: (A)(i) there is a history of dumping and material injury by reason of dumped imports in the United States or elsewhere of the subject merchandise; or
(ii)the person by whom, or for whose account, the merchandise was imported knew or should have known that the exporter was selling the subject merchandise at less than its fair value and that there was likely to be material injury by reason of such sales; and,
(B)there have been massive imports of the subject merchandise over a relatively short period. Section 351.206(h)(1) of the Department's regulations provides that, in determining whether imports of the subject merchandise have been “massive,” the Department normally will examine:
(i)the volume and value of the imports;
(ii)seasonal trends; and
(iii)the share of domestic consumption accounted for by the imports. In addition, 19 CFR 351.206(h)(2) provides that an increase in imports of 15 percent during a “relatively short period” of time may be considered “massive.” Further, 19 CFR 351.206(i) defines “relatively short period” as normally being the period beginning on the date the proceeding begins ( *i.e.* , the date the petition is filed) and ending at least three months later. To determine whether there is a history of injurious dumping of the merchandise under investigation, in accordance with section 733(e)(1)(A)(i) of the Act, the Department normally considers evidence of an existing antidumping duty order on the subject merchandise in the United States or elsewhere to be sufficient. *See* , *e.g.* , *Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Cut-To-Length Carbon Quality Steel Plate Products from Indonesia* , 64 FR 41206 (July 29, 1999) unchanged in the final determination, ( *Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon-Quality Steel Plate Products from Indonesia* , 64 FR 73164 (December 29, 1999)). With regard to imports of lemon juice from Argentina, Petitioner makes no specific mention of a history of dumping for Argentina. There have been no dumping orders issued by the United States or by any other country on lemon juice from Argentina. For this reason, the Department does not find a history of injurious dumping of the subject merchandise from Argentina pursuant to section 733(e)(1)(A)(i) of the Act. To determine whether the person by whom, or for whose account, the merchandise was imported knew or should have known that the exporter was selling the subject merchandise at less than its fair value and that there was likely to be material injury by reason of such sales in accordance with section 733(e)(1)(A)(ii) of the Act, the Department normally considers margins of 25 percent or more for EP sales, or 15 percent or more for CEP transactions, sufficient to impute knowledge of dumping. *See* , *e.g.* , *Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Lined Paper Products from Indonesia* , 71 FR 15162 (March 27, 2006) unchanged in the final determination, ( *Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances: Certain Lined Paper Products from Indonesia* , 71 FR 47171 (August 16, 2006)). For Citrusvil and San Miguel, we determine that there is a sufficient basis to find that the importer should have known that the exporter was selling the subject merchandise at less than its fair value pursuant to section 733(e)(1)(A)(ii) of the Act, because the calculated margins are greater than 25 percent for both companies' sales. Consequently, we have imputed knowledge of dumping with regard to both respondents. Regarding the companies subject to the “all others” rate, it is the Department's normal practice to conduct its critical circumstances analysis for these companies based on the experience of investigated companies. *See* , *e.g.* , *Notice of Final Determination of Sales at Less Than Fair Value: Certain Steel Concrete Reinforcing Bars From Turkey* , 62 FR 9737, 9741 (March 4, 1997). However, the Department does not automatically extend an affirmative critical circumstances determination to companies covered by the “all others” rate. *See* , *e.g.* , *Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Sheet and Strip in Coils from Japan* , 64 FR 30574 (June 8, 1999) ( *Stainless Steel from Japan* ). Instead, the Department considers the traditional critical circumstances criteria with respect to the companies covered by the “all others” rate. Consistent with *Stainless Steel from Japan* , the Department has, in this case, applied the traditional critical circumstances criteria to the “all others” category for the antidumping investigation of certain lemon juice from Argentina. The dumping margin for the “all others” category in the instant case exceeds the 25 percent threshold necessary to impute knowledge of dumping. Therefore, we find there is a reasonable basis to impute to importers, knowledge of dumping for the companies covered by the “all others” rate. Consequently, we preliminarily find that knowledge of dumping exists with regard to the companies subject to the “all others” rate. In determining whether there is a reasonable basis to believe or suspect that an importer knew or should have known that there was likely to be material injury by reason of dumped imports, consistent with section 733(e)(1)(A)(ii) of the Act, the Department normally will look to the preliminary injury determination of the ITC. *See* , *e.g.* , *Stainless Steel from Japan* , 64 FR at 30578. On November 16, 2006, the ITC preliminarily found material injury to the domestic industry due to imports of lemon juice from Argentina and Mexico, which are alleged to be sold in the United States at less than fair value and, on this basis, the Department may impute knowledge of likelihood of injury to these respondents. *See ITC Preliminary Report* . In determining whether there are “massive imports” over a “relatively short period,” pursuant to section 733(e)(1)(B) of the Act, the Department normally compares the import volumes of the subject merchandise for at least three months immediately preceding the filing of the petition ( *i.e.* , the “base period”) to a comparable period of at least three months following the filing of the petition ( *i.e.* , the “comparison period”). Imports normally will be considered massive when imports during the comparison period have increased by 15 percent or more compared to imports during the base period. The Department requested and obtained from both respondents monthly shipment data from June 2006 through March 2007 in order to determine whether imports were massive. We also relied on U.S. import data found on the ITC's Dataweb for imports through January 2007 ( *i.e.* , the latest month for which complete data exist at the time of this preliminary determination). We have used a period of four months as the period for comparison in preliminarily determining whether imports of the subject merchandise have been massive. We believe that a four-month period is most appropriate as the basis for analysis because using four months captures all data available at this time, based on October 2006 as the beginning of the comparison period. Additionally, a four-month period properly reflects the “relatively short period” set forth in the statute for determining whether imports have been massive. *See* section 733(e)(1)(B) of the Act. It is our practice to base the critical-circumstances analysis on all available data, using base and comparison periods of no less than three months. *See Notice of Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Affirmative Preliminary Determination of Critical Circumstances: Certain Frozen and Canned Warmwater Shrimp from India* , 69 FR 47111 (Aug. 4, 2004) unchanged in the final determination, ( *Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Frozen and Canned Warmwater Shrimp From India* , 69 FR 76916 (December 23, 2004)); and *Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Color Television Receivers From the People's Republic of China* , 69 FR 20594 (Apr. 16, 2004), and accompanying *Issues and Decision Memorandum* at *Comment 3* . Therefore, we have used all available data in our critical-circumstances analysis for the preliminary determination. San Miguel provided shipment data from June 2006 through January 2007. San Miguel's shipment data indicate that its shipments increased by more than 15 percent between the four-month base and comparison periods. However, San Miguel argued that this increase is due largely to issues of “timing.” Our analysis of San Miguel's 2005 and 2006 monthly shipment data leads us to reject this argument. However, because the details of our analysis are business proprietary, complete discussion can be found in the *Memorandum to Barbara E. Tillman, Director, Office 6, “Critical Circumstances Allegation* ,” (April 19, 2007) ( *Critical Circumstances Memorandum* ). Based on our analysis of San Miguel's shipment data for 2005 and 2006, we have determined that San Miguel's shipments increased by more than 15 percent between the four-month base and comparison periods. *See Critical Circumstances Memorandum* . Citrusvil reported shipment data for June 2006 through March 2007. Citrusvil's reported shipment data do not indicate that its shipments increased by more than 15 percent between the four-month base and comparison periods. However, our analysis of Citrusvil's reported shipment data leads us to question the reliability of that data. 3 For a discussion of the BPI details of this analysis, *see Critical Circumstances Memorandum* . Because we have determined that Citrusvil's shipment data are unreliable, we have relied on ITC data to determine whether Citrusvil's imports increased by more than 15 percent between the four-month base and comparison periods. *See Critical Circumstances Memorandum* ; *Notice of Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Affirmative Preliminary Critical Circumstances Determination: Certain Orange Juice from Brazil* , 70 FR 49557, 49565-66 (August 24, 2005) ( *Orange Juice from Brazil* ) (basing the evaluation of massive imports on ITC Dataweb information for all companies because company-specific information was not submitted with sufficient time to use in the analysis). We adjusted the ITC data to account for shipments of lemon juice exported by San Miguel, because San Miguel's information is the only reliable company-specific information on the record with which we could make a relevant adjustment. After adjusting the data to account for shipments of lemon juice exported by San Miguel, the data indicate an increase in imports greater than 15 percent. *See Critical Circumstances Memorandum* . As such, we find that imports have increased by more than 15 percent between the four-month base and comparison periods. 3 We intend to issue a supplemental questionnaire to Citrusvil requesting that it correct the deficiencies and resubmit its data in time for verification and use in the final determination. For the final determination, we will reevaluate our critical circumstances determination for Citrusvil and the companies subject to the “all others” rate in light of Citrusvil's revised shipment data. We have examined the information on the record to determine whether the increase in San Miguel's and Citrusvil's imports into the United States during the comparison period are consistent with seasonal patterns related to the growing season for lemons and the corresponding production cycle for lemon juice. We analyzed import data for the relevant base and comparison periods for 2003 through 2006 and find that imports do not show a pattern of seasonality. *See Critical Circumstances Memorandum* . As such, we preliminarily determine that the surge in imports is not due to seasonality. As noted above, the Department does not automatically extend an affirmative critical circumstances determination to companies covered by the “all others” rate. Therefore, with respect to whether imports were massive in this case for the “all others” category, we considered the experience of Citrusvil and San Miguel. As discussed above, we preliminarily find that imports from Citrusvil and San Miguel have been massive over a relatively short period of time. Since our normal practice of conducting the critical circumstances analysis of companies in the all-others category is based on the experience of the investigated companies, we determine that there have been massive imports of lemon juice in the all-others category. In addition, we also examined ITC data for the four-month base and comparison periods noted above. *See Orange Juice from Brazil* , 70 FR at 49565-66. As explained above, we adjusted the ITC data to account for shipments of lemon juice exported by San Miguel. After this adjustment, the ITC data indicate an increase in imports greater than 15 percent. *See Critical Circumstances Memorandum* . In summary, we preliminarily find that Citrusvil, San Miguel and the companies subject to the “all others” rate satisfy the imputed knowledge of injury and dumping criteria under section 733(e)(1)(A)(ii) of the Act and the massive imports criterion under section 733(e)(1)(B) of the Act. Given the analysis summarized above, we preliminarily determine that critical circumstances exist for all imports of lemon juice into the United States produced in and exported from Argentina. Verification In accordance with section 782(i) of the Act, we will verify the questionnaire responses of Citrusvil and San Miguel before making our final determination. Preliminary Determination We preliminarily determine that the following weighted-average dumping margins exist for the period July 1, 2005 through June 30, 2006: Producer/Exporter Weighted-Average Margin (Percentage) Citrusvil 128.50%% San Miguel 85.64%% All Others 113.52%% Suspension of Liquidation In accordance with section 733(d) of the Act, we will instruct CBP to suspend liquidation of all entries of lemon juice from Argentina that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the **Federal Register** . Additionally, because we have made an affirmative preliminary determination of critical circumstances, we will instruct CBP to suspend liquidation of entries made on or after 90 days prior to the date of publication of this notice in accordance with section 733(e)(2) of the Act. We will instruct CBP to require a cash deposit or the posting of a bond equal to the weighted-average margin, as indicated in the chart above, as follows:
(1)the rates for exports from the mandatory respondents will be the rates we have determined in this preliminary determination as outlined above;
(2)if the exporter is not a firm identified in this investigation, but the producer is, the rate will be the rate established for the producer of the subject merchandise;
(3)the rate for all other producers or exporters will be 113.52 percent. These suspension of liquidation instructions will remain in effect until further notice. Disclosure In accordance with 19 CFR 351.224(b), the Department will disclose to interested parties the calculations performed in this preliminary determination within five days of the date of the public announcement. Public Comment Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs either 50 days after the date of publication of this notice or ten days after the issuance of the verification reports, whichever is later. *See* 19 CFR 351.309(c)(1)(i). Rebuttal briefs, the content of which is limited to the issues raised in the case briefs, must be filed within five days after the deadline for the submission of case briefs. *See* 19 CFR 351.309(d). A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. *See* 19 CFR 351.309(c)(2), (d)(2). Executive summaries should be limited to five pages total, including footnotes. *See id* . In accordance with section 774 of the Act, we will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs. If a request for a hearing is made, we will tentatively hold the hearing two days after the deadline for submission of rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, at a time and in a room to be determined. Parties should confirm by telephone the date, time, and location of the hearing 48 hours before the scheduled date. Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the date of publication of this notice. Requests should contain: 1) the party's name, address, and telephone number; 2) the number of participants; and 3) a list of the issues to be discussed. At the hearing, oral presentations will be limited to issues raised in the briefs. *See* 19 CFR 351.310(c). Unless the Department receives a request for a postponement pursuant to section 735(a)(2) of the Act, the Department will make its final determination no later than 75 days after the date of this preliminary determination. *See* section 735(a)(1) of the Act. International Trade Commission Notification In accordance with section 733(f) of the Act, we have notified the ITC of the Department's preliminary affirmative determination. In addition, we are making available to the ITC all non-privileged and non-proprietary information relating to this investigation. We will allow the ITC access to all privileged and business proprietary information in our files, provided the ITC confirms that it will not disclose such information, either publicly or under an administrative protective order, without the written consent of the Assistant Secretary for Import Administration. If the final determination in this proceeding is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether imports of lemon juice from Argentina materially injure, or threaten material injury to, the U.S. industry. *See* section 735(b)(2) of the Act. This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act. Dated: April 19, 2007. Joseph A. Spetrini, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-8015 Filed 4-25-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-201-835] Notice of Preliminary Determinations of Sales at Less Than Fair Value and of Critical Circumstances in Part: Lemon Juice from Mexico AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: We preliminarily determine that imports of lemon juice from Mexico are being, or are likely to be, sold in the United States at less than fair value, as provided in section 733 of the Tariff Act of 1930, as amended. In addition, we preliminarily determine that there is a reasonable basis to believe or suspect that critical circumstances exist with respect to the imports of lemon juice from Mexico for one respondent. Interested parties are invited to comment on this preliminary determination. We will make our final determination within 75 days after the date of this preliminary determination. FOR FURTHER INFORMATION CONTACT: George Callen or Minoo Hatten, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-0180 or
(202)482-1690, respectively. SUPPLEMENTARY INFORMATION: Background On October 11, 2006, the Department of Commerce (the Department) initiated antidumping investigations of lemon juice from Argentina and Mexico. See *Initiation of Antidumping Duty Investigations: Lemon Juice from Argentina and Mexico* , 71 FR 61710 (October 19, 2006) ( *Initiation Notice* ). The Department set aside a period for all interested parties to raise issues regarding product coverage. The Department encouraged all interested parties to submit such comments within 20 days from publication of the initiation notice, that is, by November 8, 2006. See *Initiation Notice* ; see also *Antidumping Duties; Countervailing Duties; Final Rule* , 62 FR 27296, 27323 (May 19,1997) ( *Final Rule* ). On November 6, 2006, the United States International Trade Commission
(ITC)preliminarily determined that there is a reasonable indication that imports of lemon juice from Argentina and Mexico are materially injuring the U.S. industry and the ITC notified the Department of its findings. See *Lemon Juice From Argentina and Mexico, Investigation Nos. 731-TA-1105 1106 (Preliminary)* , 71 FR 66795 (November 16, 2006) ( *ITC Preliminary Report* ). On February 8, 2007, we postponed the deadline for the preliminary determinations under section 733(c)(1)(A) of the Tariff Act of 1930, as amended (the Act), by 50 days to April 19, 2007. See *Postponement of Preliminary Determinations of Antidumping Duty Investigations: Lemon Juice from Argentina and Mexico* , 72 FR 7606 (February 16, 2007). On March 30, 2007, Sunkist Growers Inc. (the petitioner) alleged that, in accordance with 19 CFR 351.206, critical circumstances existed with regard to imports of lemon juice from Argentina and Mexico. Period of Investigation The period of investigation
(POI)is July 1, 2005, through June 30, 2006. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition. Scope of Investigation The merchandise covered by this investigation includes certain lemon juice for further manufacture, with or without addition of preservatives, sugar, or other sweeteners, regardless of the GPL (grams per liter of citric acid) level of concentration, brix level, brix/acid ratio, pulp content, clarity, grade, horticulture method (e.g., organic or not), processed form (e.g., frozen or not-from-concentrate), FDA standard of identity, the size of the container in which packed, or the method of packing. Excluded from the scope are:
(1)lemon juice at any level of concentration packed in retail-sized containers ready for sale to consumers, typically at a level of concentration of 48 GPL; and
(2)beverage products such as lemonade that typically contain 20% or less lemon juice as an ingredient. Lemon juice is classifiable under subheadings 2009.39.6020, 2009.31.6020, 2009.31.4000, 2009.31.6040, and 2009.39.6040 of the Harmonized Tariff Schedule of the United States (HTSUS). While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive. Scope Comments In accordance with the preamble to our regulations (see *Final Rule* ), we set aside a period of time for parties to raise issues regarding product coverage in the Initiation Notice and encouraged all parties to submit comments within 20 calendar days of publication of the *Initiation Notice* . We did not receive comments from any interested parties in the Mexico investigation. On November 1, 2006, we received comments from Citromax S.A.C.I. (Citromax), an interested party in the Argentina investigation. On November 8, 2006, the Department received rebuttal comments from the petitioner on the Citromax submission. As discussed further in the March 21, 2007, memorandum entitled “Scope Issue in the Antidumping Duty Investigations on Lemon Juice from Argentina and Mexico” on file in Import Administration's Central Records Unit (CRU), Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, we are continuing to include organic lemon juice in the scope of the antidumping duty investigations of lemon juice from Argentina and Mexico. Respondent Selection Section 777A(c)(1) of the Act directs the Department to calculate individual weighted-average dumping margins for each known exporter and producer of the subject merchandise. Section 777A(c)(2) of the Act also gives the Department discretion to examine a reasonable number of such exporters and producers when it is not practicable to examine all exporters and producers. In order to identify the universe of producers/exporters in Mexico to investigate for purposes of this less-than-fair-value investigation on lemon juice, we analyzed information from various sources, including data from U.S. Customs and Border Protection (CBP). Using information obtained from the petition, an internet search, and a request to the U.S. Embassy in Mexico in addition to CBP statistical information on U.S. imports of lemon juice during the POI, we identified three respondents accounting for approximately 95 percent of the POI imports from Mexico: Citrofrut Veracruz (Citrofrut), Citrotam Internacional S.P.R. de R.L. (Citrotam), and Coca-Cola FEMSA, S.A. de C.V. 1 For a detailed analysis of our respondent-selection procedure, see “Antidumping Duty Investigation on Lemon Juice from Mexico Respondent Selection,” dated November 7, 2006, on file in the CRU. 1 In an entry of appearance, dated November 15, 2006, The Coca-Cola Company and a subsidiary, The Coca-Cola Export Corporation, Mexico Branch (collectively Coca-Cola), clarified that it, rather than Coca-Cola FEMSA, S.A. de C.V., was the foreign producer and exporter of the subject merchandise under investigation. Citrofrut On November 20, 2006, we issued a questionnaire to Citrofrut requesting that it respond to section A of the questionnaire by December 11, 2006. Because Citrofrut did not respond by this due date, we sent a letter on December 13, 2006, in which we informed the company that we had not received a response from it despite confirmation from FedEx that Citrofrut had received the questionnaire. We informed Citrofrut further that, if it intended to respond to the questionnaire, it should do so by December 20, 2006. On December 14, 2006, Citrofrut submitted documentation demonstrating that it exports lime juice but not lemon juice from Mexico to the United States. The petitioner did not comment. We find that the supporting documentation submitted by Citrofrut is sufficient to demonstrate its assertion that it only exports lime juice. On August 6, 2006, before the petition was filed, Citrofrut's broker in the United States filed post-summary adjustment documents with CBP to address the incorrect classification it had used on certain entries at the time of entry. We have confirmed that CBP has accepted the reclassification claim with respect to imports from Citrofrut. Therefore, we preliminarily determine that Citrofrut is no longer a mandatory respondent in the investigation of lemon juice from Mexico. If it begins to export lemon juice, its exports will be subject to the all-others cash-deposit rate. Use of Adverse Facts Available For the reasons discussed below, we determine that the use of adverse facts available
(AFA)is appropriate for the preliminary determination with respect to Citrotam. A. Use of Facts Available Section 776(a)(2) of the Act provides that, if an interested party withholds information requested by the administering authority, fails to provide such information by the deadlines for submission of the information and in the form or manner requested, subject to subsections (c)(1) and
(e)of section 782 of the Act, significantly impedes a proceeding under this title, or provides such information but the information cannot be verified as provided in section 782(i), the administering authority shall use, subject to section 782(d) of the Act, facts otherwise available in reaching the applicable determination. Section 782(d) of the Act provides that, if the administering authority determines that a response to a request for information does not comply with the request, the administering authority shall promptly inform the responding party and provide an opportunity to remedy the deficient submission. Section 782(e) of the Act states further that the Department shall not decline to consider submitted information if all of the following requirements are met:
(1)the information is submitted by the established deadline;
(2)the information can be verified;
(3)the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination;
(4)the interested party has demonstrated that it acted to the best of its ability;
(5)the information can be used without undue difficulties. On November 7, 2006, we mailed a package to Citrotam via Federal Express (FedEx) containing a copy of the respondent-selection memorandum and a request for model-match comments. Based on information we found on the internet we addressed the package to Citrotam's general manager (GM). FedEx reported that it was not able to deliver the package to Citrotam because it had been told that the company had moved from the location for which we had provided an address. We continued our efforts to locate Citrotam, including working with the U.S. Embassy in Mexico City, as well as obtaining contact information for Citrotam from the Embassy of Mexico in Washington, DC. We obtained information indicating that Citrotam is out of business and has been replaced by a new firm, Productos Naturales de Citricos (Pronacit), which may be using the former location of Citrotam to do business and has the same GM as Citrotam. On November 21, 2006, after many attempts, when we finally contacted the GM, he confirmed that the new name for Citrotam is Pronacit. He also confirmed to the Embassy of Mexico in Washington, DC, that Citrotam had changed its name to Pronacit. See e-mail message dated December 12, 2006, attached to the Memorandum to the File entitled “Efforts to Contact Citrotam Internacional, S.P.R. De R.L.,” dated February 20, 2007 (Citrotam Memo). As discussed in detail in the Citrotam Memo, we made additional efforts to contact the GM to obtain an address for Pronacit. When FedEx was unable to deliver the package to the address provided by the GM to the Embassy of Mexico, we attempted to contact the GM again and spoke with the GM's assistant. On January 12, 2007, at the suggestion of the GM's assistant, we sent a letter to the assistant's residence containing questions pertaining to successor-in-interest status, as well as our antidumping duty questionnaire and other documents requesting that Citrotam/Pronacit respond by January 26, 2007. We confirmed that the package was delivered to the assistant's residence on January 16, 2007. We have received no response. See Citrotam Memo. Citrotam/Pronacit failed to respond to our detailed requests for information regarding successorship. Pursuant to section 776(a) of the Act, we find that Citrotam/Pronacit withheld information that we requested, failed to provide such information by the deadlines for the submission of the information or in the form and manner requested, subject to subsections (c)(1) and
(e)of section 782, and significantly impeded a proceeding under this title. Therefore, we are resorting to the use the facts otherwise available in reaching the applicable determination. We preliminarily find that the facts available, including statements from the GM, U.S. Embassy officials in Mexico, and Embassy of Mexico officials, support the conclusion that Pronacit is the successor to Citrotam. Moreover, because Citrotam/Pronacit failed to respond to any of our requests for information, we are relying on facts otherwise available to assign a dumping margin to Citrotam/Pronacit. B. Application of Adverse Inferences for Facts Available In selecting from among the facts otherwise available, section 776(b) of the Act provides that, if the administering authority finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority, in reaching the applicable determination under this title, the administering authority may use an inference adverse to the interests of that party in selecting from among the facts otherwise available. *See, e.g., Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Certain Circular Welded Carbon-Quality Line Pipe From Mexico* , 69 FR 59892 (October 6, 2004); see also *Notice of Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Affirmative Preliminary Determination of Critical Circumstances in Part: Prestressed Concrete Steel Wire Strand From Mexico* , 68 FR 42378 (July 17, 2003). Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See *Statement of Administrative Action* accompanying the Uruguay Round Agreements Act, H. Doc. No. 103-316, at 870
(1994)(SAA). Furthermore, “affirmative evidence of bad faith, or willfulness, on the part of a respondent is not required before the Department may make an adverse inference.” See *Final Rule* . Because we have preliminarily determined under section 776(a) of the Act that Pronacit is the successor to Citrotam and because, in refusing to respond to our requests for information, Citrotam/Pronacit has failed to cooperate to the best of its ability, we find that the application of an AFA rate for Citrotam/Pronacit is warranted in this preliminary determination. The Department finds that Citrotam/Pronacit failed to cooperate to the best of its ability because it continued to be non-responsive despite numerous attempts to obtain information. See Citrotam Memo. Consequently, the Department has preliminarily determined that, in selecting from among the facts otherwise available, an adverse inference is warranted. See section 776(b) of the Act; see also *Notice of Final Determination of Sales at Less than Fair Value: Circular Seamless Stainless Steel Hollow Products from Japan* , 65 FR 42985 (July 12, 2000), where the Department applied total AFA because the respondents failed to respond to the antidumping questionnaire. If, however, within 30 days after issuance of this preliminary determination, Pronacit is able to demonstrate on the record of the investigation that it is not the successor to Citrotam and cooperates fully during the remainder of the investigation, the Department may reconsider this issue for purposes of the final determination. C. Selection of Information Used as Facts Available Where the Department applies AFA because a respondent failed to cooperate by not acting to the best of its ability to comply with a request for information, section 776(b) of the Act authorizes the Department to rely on information derived from the petition, a final determination, a previous administrative review, or other information placed on the record. See also 19 CFR 351.308(c) and the SAA at 829-831. In this case, because we are unable to calculate a margin for Citrotam/Pronacit and because an adverse inference is warranted, we have assigned to Citrotam/Pronacit the highest product-specific margin, 205.37 percent, which we have calculated in this investigation based on the data reported by a respondent. Date of Sale Section 351.401(i) of the Department's regulations states that the Department will normally use the date of invoice, as recorded in the producer's or exporter's records kept in the ordinary course of business, as the date of sale. The Department may use a date other than the date of invoice if the alternative better reflects the date on which the material terms of sales ( *e.g.* , price and quantity) are established. Coca-Cola stated in its responses that the essential terms of sale did not change once it accepted a purchase order but indicated that sometimes it received the purchase order after shipment had occurred. In its U.S. sales database, Coca-Cola reported sales based on invoice dates during the POI and, when shipment dates preceded invoicing, on shipment dates. Based on its comment that the essential terms of sale do not change once a purchase order is accepted, we asked Coca-Cola to report sales based on the purchase-order date or, when a shipment preceded the purchase-order date, the shipment date as date of sale. Because we did not receive this information in time for inclusion in this preliminary determination, we have used Coca-Cola's reported invoice date or, where the shipment preceded invoicing, the shipment date as the date of sale for the preliminary determination. We will examine the information submitted by Coca-Cola with respect to its purchase order; we will also examine this issue at verification and incorporate our findings in our analysis for the final determination. Fair-Value Comparisons To determine whether Coca-Cola's sales of lemon juice from Mexico to the United States were made at less than fair value during the POI, we compared the export price or constructed export price
(CEP)to normal value, as described in the “U.S. Price” and “Normal Value” sections of this notice. In accordance with section 777A(d)(1)(A)(i) of the Act, we compared the weighted-average export prices and CEPs to normal value which, in this case, is constructed value (CV). In our comparisons, we offset the average-to-average comparisons of U.S prices and constructed values by any non-dumped comparisons. This approach comports with the methodology for investigations that we set forth in *Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation; Final Modification* , 71 FR 77722 (December 27, 2006). U.S. Price Section 772(a) of the Act defines export price as the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter outside the United States to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c). During the POI, Coca-Cola produced and sold subject merchandise to the first unaffiliated purchaser in the United States prior to importation. For sales of this merchandise, we have applied the export-price methodology. Section 772(b) of the Act defines CEP as the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter to a purchaser not affiliated with the producer or exporter, as adjusted under subsections
(c)and (d). In addition to export-price sales, Coca-Cola also had CEP sales because it sold some subject merchandise to the first unaffiliated purchaser in the United States after the date of importation of the merchandise. Thus, we have applied the CEP methodology to these sales. We based export price and CEP on the packed price to unaffiliated purchasers in the United States. We made deductions, as appropriate, for billing adjustments. We also made deductions for any movement expenses in accordance with section 772(c)(2)(A) of the Act. Accordingly, we made deductions for foreign inland freight from the processing plant to the Mexican border and brokerage expenses incurred in Mexico for all sales. For CEP sales, we also made deductions for U.S. brokerage expenses, U.S. warehousing expenses, and inland freight from the central warehouse to the point of distribution. In accordance with section 772(d)(1) of the Act and the SAA at 823-824, we calculated the CEP further by deducting selling expenses associated with economic activities occurring in the United States, which consisted of credit expenses. In accordance with section 772(d)(1) of the Act, we also deducted indirect selling expenses associated with economic activities occurring in the United States, which consisted of inventory carrying costs and the profit allocated to expenses deducted under section 772(d)(1) in accordance with sections 772(d)(3) and 772(f) of the Act. Because Coca-Cola reported expenses incurred on U.S. but not home-market sales, we calculated a CEP profit rate based on the expense information provided in its 2005 financial statement for sales of merchandise in all markets, pursuant to section 772(f)(2)(C)(iii) of the Act. We applied this rate to those selling expenses associated with economic activities occurring in the United States to obtain the profit amount we deducted from the sales price. During the POI, Coca-Cola sold lemon juice to a U.S. affiliate that further processed the merchandise into beverage or beverage-base products in the United States prior to sale to unaffiliated customers. Coca-Cola requested that it not be required to respond to section E of our questionnaire concerning its further-processed merchandise and submitted data to support its claim that the U.S. value added for such sales is likely to exceed substantially the value of the imported subject merchandise. After reviewing its request, we found that the value added in the United States is likely to exceed substantially the value of the subject merchandise and that there is a sufficient quantity of U.S. sales of non-further-processed merchandise to provide a reasonable basis for comparison to normal value. Accordingly, we have implemented the special rule for value-added sales pursuant to section 772(e) of the Act and have not included the sales of further-processed merchandise in our margin calculations. See Memorandum from Minoo Hatten to Laurie Parkhill regarding the reporting of further-manufactured merchandise, dated March 19, 2007. Normal Value A. Home-Market Viability and Comparison-Market Selection In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating normal value ( *i.e.* , the aggregate volume of home-market sales of the foreign like product is equal to or greater than five percent of the aggregate volume of U.S. sales), we compared Coca-Cola's volume of home-market sales of the foreign like product to its volume of U.S. sales of the subject merchandise in accordance with section 773(a)(1)(C) of the Act. Because the volume of its home-market sales did not meet the five-percent threshold, we found that Coca-Cola's home market was not viable for price-comparison purposes. Moreover, Coca-Cola did not sell the foreign like product to any other country during the POI. Consequently, pursuant to section 773(a)(4) of the Act, we have based normal value on CV for all sales. B. Level of Trade As discussed in the “Calculation of Normal Value Based on Constructed Value” section below, we based CV selling expenses and profit on Coca-Cola's home-market sales of orange juice during the POI and CV general and administrative
(GNA)expenses on its 2005 home-market sales of soft-drink concentrates. Coca-Cola has not provided level-of-trade information on any of its home-market sales and, thus, the record has insufficient information for us to perform a level-of-trade analysis for this preliminary determination. C. Calculation of Normal Value Based on Constructed Value We calculated CV in accordance with section 773(e) of the Act, which states that CV shall be based on the sum of a respondent's cost of materials and fabrication for the subject merchandise, plus amounts for selling, GNA expenses, profit, and U.S. packing costs. We relied on the submitted CV information for Coca-Cola except in certain instances. First, we have determined for the preliminary determination that lemon juice and lemon oil are co-products in Coca-Cola's processing of lemons. Thus, we have revised Coca-Cola's reported cost of manufacture for lemon juice to include a portion of the lemon-purchase costs and a portion of the common lemon-processing costs incurred before the split-off point in the production of lemon juice and lemon oil. In addition, we have revised Coca-Cola's reported costs for the production of lemon juice to include an allocable portion of the company's GNA expenses. For further discussion of these adjustments, see the Memorandum to Neal Halper from Mark Todd, “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Determination,” dated April 19, 2007. Because we have determined for purposes of this preliminary determination that Coca-Cola does not have a viable home market or third-country market, we have calculated Coca-Cola's selling expenses and profit based on section 773(e)(2)(B)(i) of the Act, which states that selling expenses and profit may be calculated based on “actual amounts incurred by the specific exporter or producer. . . in connection with the production and sale, for consumption in the foreign country, of merchandise that is in the same general category of products as the subject merchandise.” We have determined for the preliminary determination that Coca-Cola's production and sale of orange juice in Mexico is merchandise in the same general category of products as lemon juice. Thus, we have revised the CV figures for Coca-Cola's lemon juice to include selling expenses and profit amounts that are based on Coca-Cola's production and sale of orange juice for consumption in Mexico. Currency Conversion We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank. All-Others Rate Section 735(c)(5)(B) of the Act provides that, where the estimated weighted-average dumping margins established for all exporters and producers individually investigated are zero or *de minimis* or are determined entirely under section 776 of the Act, the Department may use any reasonable method to establish the estimated “all others” rate for exporters and producers not individually investigated. This provision contemplates that the Department may weight-average margins other than the zero, *de minimis* , or AFA margins to establish the all-others rate. When the data does not permit the weight-averaging of such other margins, the SAA provides that the Department may use any other reasonable method. See SAA at 873. Coca-Cola is the only respondent in this investigation for which we have calculated a company-specific rate that is not based entirely on facts available. Therefore, for purposes of determining the “all others” rate and pursuant to section 735(c)(5)(A) of the Act, we are using the dumping margin we have calculated for Coca-Cola as indicated in the “Preliminary Determination” section below. Critical Circumstances A. Citrotam/Pronacit and Coca-Cola On March 30, 2007, the petitioner requested that the Department make a finding that critical circumstances exist with respect to imports of lemon juice from Mexico. The petitioner alleged that there is a reasonable basis to believe or suspect that critical circumstances exist with respect to the subject merchandise. Since this allegation was filed earlier than the deadline for the preliminary determination, we must issue our preliminary critical-circumstances determination not later than the preliminary determination. See 19 CFR 351.206(c)(2); see also Policy Bulletin 98/4 regarding *Timing of Issuance of Critical Circumstances Determinations* , 63 FR 55364 (October 15, 1998). Section 733(e)(1) of the Act provides that the Department will preliminarily determine that critical circumstances exist if there is a reasonable basis to believe or suspect that (A)(i) there is a history of dumping and material injury by reason of dumped imports in the United States or elsewhere of the subject merchandise or
(ii)the person by whom, or for whose account, the merchandise was imported knew or should have known that the exporter was selling the subject merchandise at less than its fair value and that there was likely to be material injury by reason of such sales and
(B)there have been massive imports of the subject merchandise over a relatively short period. In determining whether the relevant statutory criteria have been satisfied, the Department considered the evidence presented in the petitioner's March 30, 2007, submission, exporter-specific shipment data submitted by Coca-Cola on April 9, 2007, and the ITC Preliminary Report. To determine whether there is a history of injurious dumping of the merchandise under investigation, in accordance with section 733(e)(1)(A)(i) of the Act, the Department normally considers evidence of an existing antidumping duty order on the subject merchandise in the United States or elsewhere to be sufficient. *See Preliminary Determinations of Critical Circumstances: Steel Concrete Reinforcing Bars From Ukraine and Moldova* , 65 FR 70696 (November 27, 2000). See also *Notice of Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Affirmative Preliminary Determination of Critical Circumstances in Part: Certain Lined Paper Products From India* , 71 FR 19706 (April 17, 2006). The petitioner has made no statement concerning a history of dumping of lemon juice from Mexico. Moreover, we are not aware of any antidumping duty order on lemon juice from Mexico in any other country. Therefore, the Department finds no history of injurious dumping of lemon juice from Mexico pursuant to section 733(e)(1)(A)(i) of the Act. To determine whether the person by whom, or for whose account, the merchandise was imported knew or should have known that the exporter was selling the subject merchandise at less than its fair value, in accordance with section 733(e)(1)(A)(ii) of the Act, the Department normally considers margins of 25 percent or more for export-price sales or 15 percent or more for CEP transactions sufficient to impute knowledge of dumping. See *Preliminary Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from the People's Republic of China* , 62 FR 31972, 31978 (June 11, 1997). For the reasons explained above, we have assigned a margin of 205.37 percent to Citrotam/Pronacit. Based on this margin, we have imputed importer knowledge of dumping for Citrotam/Pronacit. See *Notice of Preliminary Determination of Sales at Less Than Fair Value and Affirmative Preliminary Determination of Critical Circumstances: Wax and Wax/Resin Thermal Transfer Ribbons from Japan* , 68 FR 71077 (December 22, 2003) (TTR from Japan). With respect to Coca-Cola, because the preliminary dumping margin for Coca-Cola is 146.10 percent, we preliminarily determine that the knowledge criterion has been met. In determining whether there is a reasonable basis to believe or suspect that an importer knew or should have known that there was likely to be material injury by reason of dumped imports, consistent with section 733(e)(1)(A)(ii) of the Act, the Department normally will look to the preliminary injury determination of the ITC. See Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Sheet and Strip in Coils From Japan, 64 FR 30574, 30578 (June 8, 1999) (Stainless Steel from Japan). The ITC preliminarily found material injury to the domestic industry due to imports of lemon juice from Mexico, which are alleged to be sold in the United States at less than fair value, and, on this basis, the Department may impute knowledge of likelihood of injury to these respondents. See ITC Preliminary Report. Thus, we determine that the knowledge criterion for ascertaining whether critical circumstances exist has been satisfied. Because Citrotam/Pronacit has met the first prong of the critical-circumstances test, according to section 733(e)(1)(A)(i) of the Act we must examine whether imports from Citrotam/Pronacit were massive over a relatively short period of time. Section 733(e)(1)(B) of the Act provides that the Department will preliminarily determine that critical circumstances exist if there is a reasonable basis to believe or suspect that there have been massive imports of the subject merchandise over a relatively short period. Section 351.206(h)(1) of the Department's regulations provides that, in determining whether imports of the subject merchandise have been “massive,” the Department normally will examine the volume and value of the imports, seasonal trends, and the share of domestic consumption for which the imports accounted. In addition, 19 CFR 351.206(h)(2) provides that an increase in imports of 15 percent during the “relatively short period” of time may be considered “massive.” Section 351.206(i) of the Department's regulations defines “relatively short period” as normally being the period beginning on the date the proceeding begins ( *i.e.* , the date on which the petition is filed) and ending at least three months later. The Department's regulations also provide, however, that, if the Department finds that importers, exporters, or producers had reason to believe, at some time prior to the beginning of the proceeding, that a proceeding was likely, the Department may consider a period of not less than three months from that earlier time. Because there is no verifiable information on the record with respect to Citrotam/Pronacit's import volumes, we must use facts available in accordance with section 776(a) of the Act. Moreover, because Citrotam/Pronacit failed to cooperate to the best of its ability, pursuant to section 776(b) of the Act, we have used an adverse inference in applying facts available and determine that there were massive imports from Citrotam/Pronacit over a relatively short period. *See TTR from Japan* , 68 FR at 71077. Accordingly, because all of the necessary criteria have been met, in accordance with section 733(e)(1) of the Act, we preliminarily find that critical circumstances exist with respect lemon juice imported from Citrotam/Pronacit. On April 9, 2007, Coca-Cola filed monthly import data for shipments of subject merchandise to the United States for June 2006 through March 2007. Coca-Cola's reported shipment data show that its volume of shipments of lemon juice is greater than the Department's 15-percent threshold for finding that imports have been massive. Coca-Cola contends that its increase in imports can be explained by seasonal trends. We have examined the information on the record and find that the increase in Coca-Cola's shipments during the comparison period is consistent with seasonal patterns related to the growing season for lemons and the corresponding production cycle for lemon juice. We analyzed import data for the relevant base and comparison periods for 2003 through 2006 and find that shipments show a consistent pattern of seasonality. For a detailed discussion see memorandum from Minoo Hatten to Laurie Parkhill entitled “Antidumping Duty Investigation on Lemon Juice From Mexico - Preliminary Determination of Critical Circumstances” dated April 18, 2007. Therefore we determine that there were no massive imports from Coco-Cola over a relatively short period. We preliminarily find that critical circumstances do not exist with respect to lemon juice imported from Coca-Cola. B. All Others It is the Department's normal practice to conduct its critical-circumstances analysis of companies in the all-others group based on the experience of investigated companies. See *Notice of Final Determination of Sales at Less Than Fair Value: Certain Steel Concrete Reinforcing Bars from Turkey* , 62 FR 9737, 9741 (March 4, 1997), where the Department found that critical circumstances existed for the majority of the companies investigated and concluded that critical circumstances also existed for companies covered by the all-others rate. As we determined in *Notice of Final Determination of Sales at Less Than Fair Value: Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from Japan* , 64 FR 24329 (May 6, 1999), applying that approach literally could produce anomalous results in certain cases. Thus, in deciding whether critical circumstances apply to companies covered by the all-others rate, the Department also considers the traditional critical-circumstances criteria. First, in determining whether there is a reasonable basis to believe or suspect that an importer knew or should have known that the exporter was selling lemon juice at less than fair value, we look to the all-others rate. See *TTR from Japan* , 68 FR at 71077. The dumping margin for the all-others category, 146.10 percent, is greater than the 25-percent threshold necessary to impute knowledge of dumping consistent with section 733(e)(1)(A)(ii) of the Act. Second, based on the ITC's preliminary material-injury determination, we also find that importers knew or should have known that there would be material injury from the dumped merchandise consistent with 19 CFR 351.206. See ITC Preliminary Report. Finally, in determining whether imports from the all-others category have been massive, where possible, we have followed our normal practice of conducting the critical-circumstances analysis of companies in this category based on the experience of the investigated companies. We are unable to base our determination on our findings for Citrotam/Pronacit because our determination for Citrotam/Pronacit was based on AFA. Consistent with *TTR from Japan* , we have not inferred adverse facts, that massive imports exist for all-others companies, because, unlike Citrotam/Pronacit, the all-others companies have not failed to cooperate to the best of their ability in this investigation. Therefore, an adverse inference with respect to shipment levels by the all-others companies is not appropriate. In this case, we have considered the experience of Coca-Cola. As discussed above, we preliminarily find that imports from Coca-Cola have not been massive over a relatively short period of time. Since our normal practice of conducting the critical-circumstances analysis of companies in the all-others category is based on the experience of the investigated companies, we determine that there have been no massive imports of lemon juice from companies in the all-others category. In addition, to ensure that relying upon the experience of the investigated companies did not cause anomalous results, we also reviewed the import statistics. In the case of lemon juice we are able to rely on information on the ITC's website because, in this investigation, the HTSUS categories for merchandise within the scope of the investigation (except for one) include only subject merchandise. The import statistics for Mexico support the conclusion that there have not been massive imports from Mexico. Consequently, the criteria necessary for determining affirmative critical circumstances with respect to the all-others category have not been met. Therefore, we have preliminarily determined that critical circumstances do not exist for imports of lemon juice from Mexico for companies in the all-others category. We will make a final determination concerning critical circumstances for all producers and exporters of subject merchandise from Mexico when we make our final antidumping determination in this investigation. Verification As provided in section 782(i) of the Act, we intend to verify all information upon which we will rely in making our final determination for Coca-Cola. Preliminary Determination We preliminarily determine that the following weighted-average dumping margins exist for the period July 1, 2005, through June 30, 2006: Manufacturer/Exporter Weighted-Average Margin (percent) The Coca-Cola Export Corporation, Mexico Branch 146.10 Citrotam Internacional S.P.R. de R.L.(Citrotam)/Productos Naturales de Citricos (Pronacit) 205.37 All Others 146.10 Suspension of Liquidation In accordance with section 733(d) of the Act, we will instruct CBP to suspend liquidation of all entries of lemon juice from Mexico that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the **Federal Register** . Additionally, for Citrotam/Pronacit, we will instruct CBP to suspend liquidation of entries made on or after 90 days prior to the publication of this notice in accordance with section 733(e)(2) of the Act. We will instruct CBP to require a cash deposit or the posting of a bond equal to the weighted-average margin, as indicated in the chart above, as follows:
(1)the rates for the mandatory respondents will be the rates we have determined in this preliminary determination;
(2)if the exporter is not a firm identified in this investigation but the producer is, the rate will be the rate established for the producer of the subject merchandise;
(3)the rate for all other producers or exporters will be 146.10 percent. These suspension-of-liquidation instructions will remain in effect until further notice. Disclosure We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b). International Trade Commission Notification In accordance with section 733(f) of the Act, we have notified the ITC of our preliminary determination of sales at less than fair value. If our final antidumping determination is affirmative, the ITC will determine whether the imports covered by that determination are materially injuring, or threatening material injury to, the U.S. industry. The deadline for the ITC's determination will be the later of 120 days after the date of this preliminary determination or 45 days after the date of our final determination. Public Comment Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs to the Department no later than seven days after the date of the issuance of the final verification report in this proceeding. Rebuttal briefs, the content of which is limited to the issues raised in the case briefs, must be filed within five days from the deadline for the submission of case briefs. Executive summaries should be limited to five pages total, including footnotes. Further, we request that parties submitting briefs and rebuttal briefs provide us with a copy of the public version of such briefs on diskette. Section 774 of the Act provides that the Department will hold a hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in an investigation, the hearing normally will be held two days after the deadline for submission of the rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time. Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request within 30 days of the publication of this notice. Requests should specify the number of participants and provide a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. We will make our final determination within 75 days after the date of this preliminary determination. This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act. Dated: April 19, 2007. Joseph A. Spetrini, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-8019 Filed 4-25-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [Docket No. 070416085-7085-01; I.D. 040907A] Fishing Capacity Reduction Program for the Longline Catcher Processor Subsector of the Bering Sea/Aleutian Islands
(BSAI)Non-Pollock Groundfish Fishery AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce. ACTION: Notice of BSAI Non-Pollock Groundfish Longline Catcher Processor Subsector reduction payment tender. SUMMARY: NMFS issues this notice to inform the public about tendering reduction payments under the longline catcher processor subsector of the Bering Sea/Aleutian Islands
(BSAI)non-pollock groundfish fishery. The Freezer Longline Conservation Cooperative
(FLCC)conducted the offer and selection process, submitted the reduction plan, and accepted four offers to remove groundfish license limitation program
(LLP)licenses. A successful referendum approved the reduction loan repayment fees of $35 million. Accordingly, NMFS is preparing to tender reduction payments to accepted offerors. DATES: The public has until May 29, 2007 to inform NMFS of any holding, owning, or retaining claims that conflict with the representations of offers as presented by the FLCC. ADDRESSES: Send questions about this notice to Leo Erwin, Chief, Financial Services Division, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3282. FOR FURTHER INFORMATION CONTACT: Leo Erwin,
(301)713-2390. SUPPLEMENTARY INFORMATION: I. Background Section 219(e) of the Consolidated Appropriations Act of 2005 established the BSAI non-pollock groundfish longline catcher processor subsector fishing capacity reduction program (program). The program was implemented after the proposed rule was published in the **Federal Register** on August 11, 2006 (71 FR 46364) and the final rule on September 29, 2006 (71 FR 57696). Persons wanting further program details should refer to these rules. The program's objectives include promoting sustainable fishery management and maximum sustained reduction of fishing capacity from the longline catcher processor subsector at the least cost. This is a voluntary program in which, in return for reduction payments, offerors permanently relinquish their fishing licenses, surrender the fishing histories upon which those licenses' issuance were based, and permanently withdraw vessels from fishing. NMFS finances the program's $35 million cost, which post-reduction BSAI non-pollock groundfish longline catcher processors repay over a 30-year term. The fee amount, expressed in cents per pound rounded up to the next one-tenth of a cent, will be based upon the annual principal and interest due on the loan and could be up to 5 percent of longline subsector BSAI Pacific cod landings. In the event that the total principal and interest due exceeds 5 percent of the ex-vessel Pacific cod revenues, an additional fee of one penny per pound will be assessed for pollock, arrowtooth flounder, Greenland turbot, skate, yellowfin sole and rock sole. The FLCC received member offers and subsequently voted to accept four offers. The FLCC used the reduction contracts NMFS published in the **Federal Register** (71 FR 57701). The FLCC submitted a fishing capacity reduction plan
(plan)subsequently approved by NMFS. A referendum concerning the fees necessary for repayment of the $35 million loan followed the offer and acceptance process. Approval of the industry fee system required at least two-thirds of the votes cast in the referendum to be in favor before the program could be implemented and payment tendered. II. Present Status NMFS mailed ballots to 39 qualified referendum voters on March 21, 2007, after approving the plan. The voting period opened on March 21, 2007, and closed on April 6, 2007. NMFS received 34 timely and valid votes. All of the votes approved the fees. This exceeded the two-thirds minimum required for industry fee system approval. Consequently, this referendum was successful and approved the industry fee system. Accordingly, the reduction contracts are in full force and effect and NMFS is now preparing to tender and disburse reduction payments to selected offerors. III. Purpose NMFS publishes this notification to inform the public before tendering reduction payments to the four accepted offers. NMFS will tender reduction payments on May 29, 2007. When NMFS tenders a reduction payment to a selected offeror, the selected offeror must permanently stop all further fishing with each reduction license and reduction privilege vessel the offeror has relinquished. NMFS will then:
(a)Permanently revoke the groundfish reduction permit and any other reduction permit(s);
(b)Notify the National Vessel Documentation Center to permanently revoke the reduction privilege vessel's fisheries trade endorsement;
(c)Notify the U.S. Maritime Administration to make the reduction privilege vessel permanently ineligible for the approval of requests to place the vessel under a foreign country's authority; and
(d)Record that the reduction fishing history represented by any documented harvest fishing history accrued on, under, or as a result of the operation of the reduction privilege vessel and/or reduction fishing vessel, the groundfish reduction permit, and the reduction permit(s) which could ever qualify the offeror for any future limited access fishing license, fishing permit, or any other harvesting privilege of any kind shall never again be available to anyone for any fisheries purpose. The selected offeror has, in accordance with the reduction contract agreed to notify all creditors or other parties with interests in the reduction privilege vessel and/or any of the reduction permit(s) specified in the reduction contract that the selected offeror has entered into the reduction contract with respect to such vessel and permit(s). This notice provides the public (including creditors or other parties) 30 days from May 29, 2007 to advise NMFS in writing of any holding, owning, or retaining claims that conflict with the representations of offers as presented by the FLCC. IV. Selected Offerors, Vessels, and Licenses The table below establishes:
(a)The names of the selected offerors;
(b)The names and official numbers of the reduction privilege vessels whose worldwide fishing privileges the selected offerors relinquished; and
(c)The area endorsements and license numbers of the reduction permits the selected offerors relinquished. Selected Offeror Vessel Name and Official Number Area Endorsements License Number Northern Aurora Fisheries, Inc. Northern Aurora, 596308 BSAI groundfish, CPHAL LLG 2678, FFP 1613 Horizon Fisheries, LLC Horizon, 586183 BSAI groundfish, Central Gulf groundfish, Western Gulf groundfish, CPHAL, BSAI *Opilio* crab LLG 3843, LLC 3844, FFP 1301 Western Queen Fisheries, LLC Western Queen, 284906 BSAI groundfish, CPHAL LLG 3936,FFP 2647 Ocean Prowler, LLC - Inactive License only Not Applicable BSAI groundfish, Cental Gulf groundfish, CPHAL LLG 3961 Authority The authority for this action is 5 U.S.C. 561, 16 U.S.C. 1801, 16 U.S.C. 1861a(b) through (e), 46 App. U.S.C. 1279f and 1279g, section 144(d) of Division B of Pub. L. 106-554, section 2201 of Pub. L. 107-20, section 205 of Pub. L. 107-117, Pub. L. 107-206, Pub. L. 108-7, Pub. L. 108-199, and Pub. L. 108-447. Dated: April 20, 2007. Samuel D. Rauch III, Deputy Assistanat Administrator for Regulatory Programs, National Marine Fisheries Service. [FR Doc. E7-7935 Filed 4-25-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [I.D. 020607A] Taking of Marine Mammals Incidental to Specified Activities; Repair of the South Jetty at the Mouth of the Columbia River, Clatsop County, Oregon 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)to take marine mammals, by harassment, incidental to repair work on the South Jetty at the Mouth of the Columbia River
(MCR)in Clatsop County, Oregon, has been issued to the U.S. Army Corps of Engineers (ACOE), Portland District for a period of 1 year. DATES: This authorization is effective from April 15, 2007 until October 31, 2008. ADDRESSES: A copy of the application, IHA, Environmental Assessment (EA), and/or the Biological Opinions may be obtained by writing to P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225, or by telephoning the contact listed here (see FOR FURTHER INFORMATION CONTACT). The application and its related documents are also available at *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* . FOR FURTHER INFORMATION CONTACT: Shane Guan, NMFS, (301)713-2289, ext 137, or Bridgette Lohrman, NMFS Oregon State Habitat Office, (503)230-5422. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and 101(a)(5)(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. An authorization shall be granted if NMFS finds that the taking will have 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 if the permissible methods of taking and requirements pertaining to the mitigation, 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.” Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: 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]. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of 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 October 23, 2006, NMFS received a request from the ACOE Portland District for an IHA to take small numbers of Steller sea lions ( *Eumetopias jubatus* ), California sea lions ( *Zalophus californianus* ), and Pacific harbor seals ( *Phoca vitulina richardsi* ), by Level B harassment, incidental to conducting repair work on the MCR South Jetty in Clatsop County, Oregon. The propose of the proposed work is to ensure the continuing function of the South Jetty by repairing critical trunk portions of the jetty. The premise of the jetty repair is to repair the most vulnerable areas of the South Jetty, where the consequences of jetty failure is high and would rapidly and significantly degrade navigation through the MCR. The intent of the proposed project is three-fold:
(1)Improve the stability of the foundation
(toe)of the jetty as affected by scour,
(2)Improve the side slope (above and below water) stability, and
(3)Improve the dynamic stability of the jetty as affected by wave forces impinging on the jetty. Interim repairs in 2007 at the MCR South Jetty consist of placing approximately 70,000 tons of stone on the north and south slopes of the jetty. A detailed description of these activities was published in the **Federal Register** on January 3, 2007 (72 FR 124). No change has been made to these proposed activities. The proposed project is planned to occur from April through October, 2007. The contractor will work 7 days per week, sunrise to sunset depending on weather and wave conditions. Comments and Responses A notice of receipt and request for 30-day public comment on the application and the proposed authorization was published on January 3, 2007 (72 FR 124). One comment from a private citizen was received during the 30-day public comment period. The Marine Mammal Commission (the Commission) also provided for comments on the proposed action. *Comment:* One private citizen opposes the project out of concern that marine mammals would be killed as a result of the ACOE's activity. *Response:* As described in detail in the **Federal Register** notice of receipt of the application (72 FR 124, January 3, 2007), the request submitted by the ACOE only requests authorization to harass a small number of marine mammals as a result of planned construction activities and does not allow for lethal or Level A takes. No take by mortality, injury, or temporary hearing threshold shift of marine mammals is expected or authorized for this proposed activity. Incidental taking will be limited to a temporary and localized disturbance of animals from elevated sound levels and visual stimulus from construction activities from rehabilitation of the Columbia River South Jetty. The Commission recommends that NMFS issue the IHA to the ACOE, provided that the monitoring and mitigation activities proposed in the previous notice (72 FR 124, January 3, 2007) are carried out as described. Description of the Marine Mammals Potentially Affected by the Activity The marine mammals most likely to be found in MCR area are the Eastern U.S. stock of Steller sea lions, California sea lions, and Pacific harbor seals. The Steller sea lion eastern stock is listed as threatened under the Endangered Species Act
(ESA)and is designated as “depleted” under MMPA. The California sea lions and harbor seals are not ESA-listed, nor are they depleted. General information of these species and stocks are provided in the January 3, 2007, **Federal Register** (72 FR 124). Therefore, it is not repeated here. More detailed information on these species and stocks can be found in Caretta *et al.*
(2006)and Angliss and Outlaw (2005), which is available at the following URL: *http://www.nmfs.noaa.gov/pr/pdfs/sars/po2005.pdf* and *http://www.nmfs.noaa.gov/pr/pdfs/sars/ak2005.pdf* , respectively. Potential Effects on Marine Mammals and Their Habitat ACOE and NMFS have determined that the proposed repair work at MCR South Jetty has the potential to result in behavioral harassment of those Steller sea lions, California sea lions, and Pacific harbor seals that may be present in the project vicinity. The potential takes of these three marine mammal species will be from noise generated by operation of construction equipment and related activities, and from the presence of trucks, excavators, construction machinery, and personnel in the proximity to the animals. The anticipated impact upon the sea lions and harbor seals include temporary disturbance and displacement of animals to other parts of the jetty or other nearby haul-outs until work is discontinued. Other haul-outs are available for harbor seals throughout the Columbia River estuary, and for sea lions on other parts of the south jetty, the North Jetty, or rocky headlands in northern Oregon or southern Washington states. Observations in the past have shown that animals that are disturbed into the water did not leave the vicinity, instead, they would move to other parts of the jetty. It has been observed that Steller sea lions moved into water when approached by a boat within 300 ft (91 m) or less, however, in other occasions there was no change in Steller sea lion behavior when approached within the same distance or less. It is also noted that majority of Steller sea lions use the far end of the jetty, which is broken off from the main stretch of the jetty and formed an island. It is estimated that maximum of 10% Steller sea lions at South Jetty will occur within range of disturbance, and none would occur within the range of disturbance during the first month. Therefore, the total number of Steller sea lion that potentially could be taken, calculated from the recorded data of Steller sea lion at South Jetty from 1995 - 2004, would be 204 animals. California sea lions are known to use areas of the jetty more shoreward than Steller sea lions. It is assumed that all California sea lions and harbor seals hauled out in the vicinity of the proposed project would be taken by Level B harassment. Based on the average number of pinnipeds recorded on the MCR South Jetty between 1995 and 2004 (Hodder, 2005), it is estimated that a total of 336 California sea lions and 4 Pacific harbor seals would be taken by Level B harassment as a result of the proposed jetty repair work. Repairing the South Jetty by adding more rocks will not reduce the availability or accessibility of habitat for Steller and California sea lions and harbor seals, as rock replacement would occur at the existing jetty footprint. Seals and sea lions use the existing tip of the jetty that is built of concrete blocks, and are easily able to climb up several vertical feet from one block to the next. The MCR South Jetty is not designated as critical habitat for the Steller sea lion under the ESA. There is no subsistence harvest of marine mammals in the proposed project area, therefore, there will be no impact of the activity on the availability of the species or stocks of marine mammals for subsistence uses. Mitigation and Monitoring As a mitigation measure to reduce potential Level B harassment to marine mammals as a result of the proposed project, NMFS requires that during land-based rock placement at South Jetty, the contractor vehicles and personnel should avoid direct approach towards pinnipeds that are hauled out as much as possible. If it is absolutely necessary for the contractor to make movements towards pinnipeds, the contractor must approach in a slow and steady manner to reduce the behavioral harassment to the animals as much as possible. The ACOE will monitor marine mammals before, during, and after the proposed South Jetty repair project in the MCR area. Steller and California sea lions and harbor seals in the MCR area will be monitored for 1 week before, during, and 4 and 8 weeks after the proposed construction work. Pinniped species, numbers, behavior, any observed disturbances during the jetty repair construction, and recolonization by pinnipeds of the project area after the construction activities will be noted. Reporting The ACOE will report the number of sea lions and seals present on the South Jetty for 1 week before starting work. During construction, the ACOE will provide weekly reports to NMFS which will include a summary of the previous week's numbers of sea lions and seals that may have been disturbed as a result of the jetty repair construction activities. These reports will provide dates, time, tidal height, number of pinnipeds on the haul road to the point of work and as far as one can see oceanward from the point of work, any observed disturbances, and the type of activities that caused the disturbances. The ACOE also will provide a description of construction activities at the time of observation. The ACOE will submit a report to NMFS within 90 days of completion of the 2007 phase of the project. National Environmental Policy Act
(NEPA)In January, 2005, ACOE prepared the *Final Environmental Assessment Repair of North and South Jetties Mouth of the Columbia River, Clatsop County, Oregon and Pacific County, Washington* (EA). NMFS has reviewed this EA and determined that it satisfies the standards for an adequate statement under the NMFS regulations and is consistent with the Council on Environmental Quality's regulations and NOAA's Administrators Order 216-6 for implementing the procedural provisions of the NEPA (40 CFR sec. 1508.3). NMFS decided to adopt this EA and has issued a Finding of No Significant Impact statement. NMFS has determined that preparation of an environmental impact statement on this activity is not necessary. ESA The NMFS Northwest Regional Office
(NWRO)prepared a Biological Opinion
(BO)upon conducting a section 7 consultation with the ACOE in July 2004. In the BO, NMFS concluded that the proposed action is not likely to jeopardize the continued existence of thirteen species of ESA-listed salmonid fishes, Snake River
(SR)fall-run Chinook salmon, SR spring/summer-run Chinook salmon, SR sockeye salmon, SR steelhead, Lower Columbia River
(LCR)Chinook salmon, Upper Columbia River
(UCR)spring-run Chinook salmon, Upper Willamette River
(UMR)Chinook salmon, Columbia River chum salmon, Middle Columbia River steelhead, LCR steelhead, UWR steelhead, UCR steelhead, and LCR coho salmon, or destroy or adversely modify designated critical habitat. On April 2, 2004, NMFS NWRO issued a “may affect, but not likely to adversely affect” determination for the effects to marine mammals and sea turtles listed under the ESA from the rehabilitation of the north and south jetties at the MCR area to the ACOE. On October 18, 2005, ACOE contacted NMFS to discuss new information regarding Steller sea lions hauling out on the South Jetty closer to the work site than previously observed. The ACOE requested NMFS' concurrence with a determination of “may affect, but not likely to adversely affect” Steller sea lions with regard to this new information. After conversations with NMFS concerning this determination, the ACOE initiated formal consultation for the Steller sea lion on November 30, 2005, for carrying out the rehabilitation of the South Jetty at the MCR. On September 27, 2006, NMFS NWRO issued a BO based on the reinitiation of an ESA section 7 consultation on Steller sea lions. In this BO, NMFS concluded that the proposed action is not likely to jeopardize the continued existence of the Eastern U.S. stock of Steller sea lion. The BO also concurred that no Steller sea lion critical habitat exists within the proposed action area. Determinations For the reasons discussed in this document and in previously identified supporting documents, NMFS has determined that the impact of jetty repair construction at the MCR South Jetty should result, at worst, in the Level B harassment of small numbers of Steller sea lions, California sea lions, and Pacific harbor seals that haul-out in the vicinity of the proposed project area. While behavioral modifications, including temporarily vacating the area around the construction site, may be made by these species to avoid the resultant visual and acoustic disturbance, the availability of alternate areas within MCR and haul-out sites has led NMFS to determine that this action will have a negligible impact on Steller sea lion, California sea lion, and Pacific harbor seal populations in the area. In addition, no take by Level A harassment (injury) or death is anticipated and harassment takes should be at the lowest level practicable due to incorporation of the mitigation measures mentioned previously in this document. Authorization NMFS has issued an IHA, pursuant to section 101(a)(5)(D) of the MMPA, to the ACOE for the potential harassment of small numbers of Steller sea lions, California sea lions, and harbor seals incidental to repair construction at the MCR South Jetty in Clatsop County, Oregon, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: April 17, 2007. James H. Lecky, Director, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E7-8028 Filed 4-25-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF DEFENSE Office of the Secretary Board of Regents of the Uniformed Services University of the Health Sciences AGENCY: Department of Defense, Uniformed Services University of the Health Sciences ACTION: Quarterly meeting notice. SUMMARY: On April 10, 2007 (72 FR 17881), the Department of Defense published a notice with the subject heading “Department of Defense Task Force on the Future of Military Health Care” which should have read “Board of Regents of the Uniformed Services University of the Health Sciences”. This notice corrects the title for that notice. All other information remains unchanged. FOR FURTHER INFORMATION AND BASE ACCESS PROCEDURES CONTACT: Janet S. Taylor, Designated Federal Officer. Dated: April 23, 2007. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, DoD. [FR Doc. 07-2072 Filed 4-24-07; 10:49 am]
Connectionstraces to 20
Traces to 20 documents
18 references not yet in our index
  • 44 CFR 67
  • 44 CFR 67.4(a)
  • 44 CFR 60.3
  • 44 CFR 10
  • 5 USC 601-612
  • Pub. L. 104-13
  • 132 F. Supp. 2d 1087
  • 343 F. Supp. 2d 1344
  • 337 F.3d 1373
  • Pub. L. 106-554
  • Pub. L. 107-20
  • Pub. L. 107-117
  • Pub. L. 107-206
  • Pub. L. 108-7
  • Pub. L. 108-199
  • Pub. L. 108-447
  • 50 CFR 216.103
  • 40 CFR 1508.3
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Proposed rule
U.S.C.§ 4104
Fed. Reg.Notices
Fed. Reg.Proposed Rules
Fed. Reg.Notices
U.S.C.§ 4001
C.F.R.§ 351.224
C.F.R.§ 351.204
C.F.R.§ 351.401
C.F.R.§ 351.404
F. Supp.132 F. Supp. 2d 1087
F. Supp.343 F. Supp. 2d 1344
F. App'x337 F.3d 1373
Cites 38 · showing 12Cited by 0 across 0 sources
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