[Federal Register Volume 73, Number 152 (Wednesday, August 6, 2008)]
[Notices]
[Pages 45695-45699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18027]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-549-813]


Canned Pineapple Fruit from Thailand: Preliminary Results of 
Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: In response to a timely request, the Department of Commerce 
(the Department) is conducting an administrative review of the 
antidumping duty order on canned pineapple fruit (CPF) from Thailand 
for the period of review (POR) July 1, 2006 through June 30, 2007. The 
review covers one respondent, Vita Food Factory (1989) Ltd. (Vita).
    The Department preliminarily determines that Vita made sales to the 
United States at less than normal value (NV). If these preliminary 
results are adopted in the final results of this administrative review, 
we will instruct U.S. Customs and Border Protection (CBP) to assess 
antidumping duties on entries of Vita's merchandise during the POR. The 
preliminary results are listed

[[Page 45696]]

below in the section titled ``Preliminary Results of Review.''

EFFECTIVE DATE: August 6, 2008.

FOR FURTHER INFORMATION CONTACT: Myrna Lobo or Douglas Kirby, 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-
2371 or (202) 482-3782, respectively.

SUPPLEMENTARY INFORMATION:

Background

    The Department published the antidumping duty order on CPF from 
Thailand on July 18, 1995. See Notice of Antidumping Duty Order and 
Amended Final Determination: Canned Pineapple Fruit from Thailand, 60 
FR 36775 (July 18, 1995) (Antidumping Duty Order). On July 3, 2007, the 
Department published in the Federal Register a notice of ``Opportunity 
to Request Administrative Review'' of the antidumping duty order on CPF 
from Thailand. See Antidumping or Countervailing Duty Order, Finding, 
or Suspended Investigation; Opportunity to Request Administrative 
Review, 72 FR 36420 (July 3, 2007). On April 21, 2008, the Department 
published a revocation of this order effective October 31, 2007. See 
Canned Pineapple Fruit from Thailand: Notice of Final Results of 
Changed Circumstances Review of the Antidumping Duty Order and 
Revocation of Antidumping Duty Order, 73 FR 21311 (April 21, 2008).
    The Department received a request for review from Vita, by the July 
31, 2007 deadline and therefore, on August 20, 2007, the Department 
published in the Federal Register the notice of initiation of the 
administrative review of the antidumping duty order on CPF from 
Thailand for Vita. See Initiation of Antidumping and Countervailing 
Duty Administrative Reviews and Requests for Revocation in Part, 72 FR 
48613 (August 20, 2007).
    On September 13, 2007, the Department issued sections A through E 
of the questionnaire to Vita.\1\ Vita submitted its sections A through 
D responses on October 22, 2007. The Department issued a supplemental 
questionnaire on January 8, 2008, and Vita responded on January 18, 
2008.
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    \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 cases). Section C requests a complete listing of 
U.S. sales. Section D requests information on the cost of production 
of the foreign like product and the constructed value of the 
merchandise under investigation. Section E requests information on 
further manufacturing.
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    On March 30, 2008, the Department, in accordance with section 
751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), and 19 
CFR 351.213(h)(2), extended the deadline for the preliminary results of 
this antidumping duty administrative review by 120 days from April 1, 
2008 until no later than July 30, 2008. See Canned Pineapple Fruit from 
Thailand: Extension of Time Limit for Preliminary Results of 
Antidumping Duty Administrative Review, 73 FR 12704 (March 10, 2008).

Period of Review

    This review covers the period July 1, 2006 through June 30, 2007.

Scope of the Order

    The product covered by this order is CPF, defined as pineapple 
processed and/or prepared into various product forms, including rings, 
pieces, chunks, tidbits, and crushed pineapple, that is packed and 
cooked in metal cans with either pineapple juice or sugar syrup added. 
CPF is currently classifiable under subheadings 2008.20.0010 and 
2008.20.0090 of the Harmonized Tariff Schedule of the United States 
(HTSUS). HTSUS 2008.20.0010 covers CPF packed in a sugar-based syrup; 
HTSUS 2008.20.0090 covers CPF packed without added sugar (i.e., juice-
packed). Although these HTSUS subheadings are provided for convenience 
and for customs purposes, the written description of the scope is 
dispositive. There have been no scope rulings for the subject order.

Less than Fair Value Analysis

    To determine whether sales of subject merchandise to the United 
States were made at less than NV, we compared the export price (EP) to 
NV, as described in the ``U.S. Price'' and ``Normal Value'' sections of 
this notice in accordance with section 777A(d)(2) of the Act.

Product Comparisons

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

Date of Sale

    It is the Department's practice to use invoice date as the date of 
sale. However, 19 CFR 351.401(i) states that the Secretary may use a 
date other than the invoice date if the Secretary is satisfied that the 
material terms of the sale were established on some other date. See 
Allied Tube and Conduit Corp. v. United States, 127 F. Supp. 2d 207, 
217-219 (CIT 2000). Vita reported invoice date as the date of sale for 
all sales in both the comparison and U.S. markets. After analyzing 
Vita's responses and the sample sales documents provided, we 
preliminarily determine that invoice date is the appropriate date of 
sale for all sales under review.

U.S. Price

    In accordance with section 772(a) of the Act, we use EP when the 
subject merchandise was 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, and constructed export price (CEP) was not otherwise 
warranted by the facts on the record. As discussed below, we conclude 
that all of Vita's U.S. sales are EP sales.
    Vita identified all of its U.S. sales as EP sales in its 
questionnaire responses. The Department based the price of each of 
Vita's U.S. sales of subject merchandise on EP, as defined in section 
772(a) of the Act, because the merchandise was sold prior to 
importation, to unaffiliated purchasers in the United States, or to 
unaffiliated purchasers for exportation to the United States and the 
use of CEP was not otherwise warranted based on the facts on the 
record. In accordance with section 772 (a) and (c) of the Act, we 
calculated EP using the prices Vita charged for packed subject 
merchandise shipped FOB. We made deductions for movement expenses, 
including, where applicable, charges for transportation, terminal 
handling, container stuffing, bill of lading preparation, customs 
clearance, and legal and port fees documentation. See Analysis 
Memorandum for Vita Food Factory (1989) Co., Ltd., (Vita Preliminary 
Analysis Memorandum) dated concurrently with this notice.

[[Page 45697]]

Normal Value

    In accordance with section 773(a)(1)(B)(i) of the Act, we have 
based NV on the price at which the foreign like product was first sold 
for consumption in the comparison market, in the usual commercial 
quantities, in the ordinary course of trade, and, to the extent 
practicable, at the same level of trade (LOT) as the EP sale. See 
``Level of Trade'' section below. After testing comparison market 
viability and whether comparison market sales were at below-cost 
prices, we calculated NV for Vita as discussed in the following 
sections.

Home Market Viability

    In accordance with section 773(a)(1)(C) of the Act, in order to 
determine whether there was a sufficient volume of sales in the home 
market to serve as a viable basis for calculating NV (i.e., the 
aggregate volume of home market sales of the foreign like product 
normally should be greater than or equal to five percent of the 
aggregate volume of U.S. sales), we compared the aggregate volume of 
home market sales of the foreign like product to the aggregate volume 
of its U.S. sales of subject merchandise. See also 19 CFR 351.404(b).
    Because the aggregate volume of Vita's home market sales of foreign 
like product is less than five percent of the aggregate volume of its 
U.S. sales of subject merchandise, we based NV on sales of the foreign 
like product in a country other than Vita's home market. See section 
773(a)(1)(B)(ii) of the Act. Specifically, we based NV for Vita on 
sales of the foreign like product in Germany due to the fact that Vita 
exported the largest amount of CPF (by quantity) to Germany during the 
POR, and did not sell merchandise more similar to that sold to the U.S. 
to any other third country market.

Cost of Production (COP) Analysis

    In the most recently completed administrative review of the 
antidumping duty order on CPF from Thailand, the Department determined 
that Vita sold foreign-like product in its comparison market at prices 
below the cost of producing the product and excluded such sales from 
the calculation of NV. See Canned Pineapple Fruit from Thailand: 
Preliminary Results of Antidumping Duty Administrative Review, 72 FR 
44490 (August 8, 2007) (11\th\ Review Preliminary Results) unchanged in 
Canned Pineapple Fruit from Thailand: Final Results of Antidumping Duty 
Administrative Review, 73 FR 5792 (January 31, 2008) (11\th\ Review 
Final Results). Therefore, in accordance with section 773(b)(2)(A)(ii) 
of the Act, the Department determined that there are reasonable grounds 
to believe or suspect that during the current POR, Vita sold the 
foreign like product at prices below the cost of producing the product 
and instituted a below cost inquiry as to Vita's sales in the 
comparison market.

Test of Comparison Market Sales Price

    We compared sales of the foreign like product in the home market 
with model-specific COP values in the POR. In accordance with section 
773(b)(3) of the Act, we calculated COP based on the sum of the costs 
of materials and fabrication employed in producing the foreign like 
product, plus selling, general and administrative (SG&A) expenses, and 
financial expenses and packing. In our sales-below-cost analysis, we 
used comparison market sales and COP information provided by Vita in 
its questionnaire responses. See Vita's October 22, 2007 section D 
questionnaire response.

Results of COP Test

    We compared the weighted-average COPs to comparison market sales of 
the foreign like-product, consistent with section 773(b) of the Act, in 
order to determine whether these sales had been made at prices below 
the COP. See also 19 CFR 351.404(b). In determining whether to 
disregard comparison market sales made at prices below the COP, we 
examined whether such sales were made (1) within an extended period of 
time in substantial quantities, and (2) at prices which permitted the 
recovery of all costs within a reasonable period of time in the normal 
course of trade, in accordance with sections 773(b)(1)(A) and (B) of 
the Act. On a product-specific basis, we compared the COP to comparison 
market prices, less any movement charges, discounts and rebates, and 
direct and indirect selling expenses. See Treatment of Adjustments and 
Selling Expenses in Calculating the Cost of Production (``COP'') and 
Constructed Value (``CV'') Import Policy Bulletin (March 25, 1994) on 
file in the CRU, which can also be accessed directly on the Web at 
http://ia.ita.doc.gov.
    Pursuant to section 773(b)(2)(C) of the Act, where fewer than 20 
percent of a respondent's sales of a given model were at prices less 
than the COP, we did not disregard any below-cost sales of that model 
because the below-cost sales were not made in substantial quantities 
within an extended period of time.\2\ Where 20 percent or more of a 
respondent's sales of a given model were at prices less than the COP, 
we disregarded the below-cost sales when: (1) they were made in 
substantial quantities within an extended period of time, in accordance 
with sections 773(b)(2)(B) and (C) of the Act and; (2) based on our 
comparison of prices to average COPs in the POR, we determined that the 
below-cost prices would not permit the recovery of costs within a 
reasonable period of time, in accordance with section 773(b)(2)(D) of 
the Act.
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    \2\ Section 773(b)(2)(ii)(B-C) of the Act defines extended 
period of time as a period that is normally 1 year, but not less 
than 6 months, and substantial quantities as sales made at prices 
below the cost of production that have been made in substantial 
quantities if (i) the volume of such sales represents 20 percent or 
more of the volume of sales under consideration for the 
determination of normal value, or (ii) the weighted average per unit 
price of the sales under consideration for the determination of 
normal value is less than the weighted average per unit cost of 
production for such sales.
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Price-to-Price Comparisons

    For those product comparisons for which there were comparison 
market sales of like product in the ordinary course of trade, we based 
NV on comparison market prices to affiliated (when made at prices 
determined to be arms-length) or unaffiliated parties, in accordance 
with section 773(a)(1)(A) and (B) of the Act. We made adjustments for 
differences in cost attributable to differences in physical 
characteristics of the merchandise, pursuant to section 
773(a)(6)(C)(ii) of the Act and 19 CRF 351.411 as well as for 
differences in direct selling expenses, in accordance with 
773(a)(6)(C)(iii) of the Act and 19 CFR 351.410. We relied on our model 
match criteria in order to match U.S. sales of subject merchandise to 
comparison sales of the foreign like product based on the reported 
physical characteristics of the subject merchandise. Where there were 
no sales of identical merchandise in the comparison market to compare 
to U.S. sales, we compared U.S. sales to the next most similar foreign 
like product on the basis of the characteristics and reporting 
instructions listed in the Department's questionnaire. See section 
771(16) of the Act.
    When comparing Vita comparison market sales to its EP sales, the 
Department calculated Vita's NV (shipped FOB) based on its gross unit 
price to customers in Germany. Pursuant to section 773(a)(6)(B)(ii) of 
the Act, we made deductions for movement expenses (i.e., inland 
freight,

[[Page 45698]]

ocean freight and warehousing), when appropriate. In accordance with 
sections 773(a)(6)(A) and (B) of the Act, we deducted comparison market 
packing costs and added U.S. packing costs. In accordance with section 
773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(c), we deducted 
comparison market direct selling expenses (i.e., credit, warranty) and 
added U.S. direct selling expenses. We made the appropriate adjustment 
for commissions paid in the home market pursuant to 773(a)(6)(C)(iii) 
of the Act and 19 CFR 351.410(c). We made adjustments, in accordance 
with 19 CFR 351.410(e), for indirect selling expenses incurred on 
comparison market or U.S. sales where commissions were granted on sales 
in one market but not in the other, the ``commission offset.'' 
Specifically, where commissions are incurred in one market, but not in 
the other, we will limit the amount of such allowance to the amount of 
either the selling expenses incurred in the one market or the 
commissions allowed in the other market, whichever is less. We made the 
appropriate adjustment for commissions paid in the home market pursuant 
to 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(c).
    Vita reported that it paid its customer in the U.S. market a 
commission on sales to the United States during the POR. Based on the 
information on the record, specifically that the commissions were paid 
to the U.S. customer rather than to an agent asking on behalf of Vita, 
we have determined these payments to be reductions in price, and 
therefore, more appropriately considered them as discounts. 
Accordingly, we have treated them as discounts in our calculations. See 
Vita Preliminary Analysis Memorandum.

Price to Constructed Value Comparisons

    In accordance with section 773(a)(4) of the Act, we used 
constructed value (CV) as the basis for NV when we could not determine 
NV because there were no above-cost contemporaneous sales of identical 
or similar merchandise in the comparison market. We calculated CV in 
accordance with section 773(e) of the Act, including the cost of 
materials and fabrication, SG&A expenses, and profit. In accordance 
with section 773(e)(2)(A) of the Act, we based SG&A expenses and profit 
on the amounts incurred and realized by the respondent in connection 
with the production and sale of the foreign like product in the 
ordinary course of trade for consumption in the comparison market. 
Where NV is based on CV, we determine the NV LOT based on the LOT of 
the sales from which we derive selling expenses, SG&A expenses, and 
profit for CV, where possible.
    We used CV as the basis for NV for sales for which there were no 
usable contemporaneous sales of the foreign like product in the 
comparison market, in accordance with section 773(a)(4) of the Act. We 
calculated CV in accordance with section 773(e) of the Act. We added 
reported materials, labor, and factory overhead costs to derive the 
cost of manufacture (COM), in accordance with section 773(e)(1) of the 
Act. We then added interest expenses, SG&A expenses, profit, and U.S. 
packing expenses to derive the CV (and added U.S. credit expenses for 
comparison to EP), in accordance with sections 773(e)(2) and (3) of the 
Act. We calculated profit based on the total value of sales and total 
COP reported by Vita in its questionnaire response, in accordance with 
section 773(e)(2)(A) of the Act. Finally, we deducted comparison market 
credit expenses from CV and added U.S. credit to calculate the foreign 
unit price in dollars (FUPDOL), pursuant to section 773(e)(2)(A) of the 
Act.

Level Of Trade

    Section 773(a)(1)(B)(i) of the Act states that, to the extent 
practicable, the Department will calculate NV based on sales at the 
same LOT as the EP or CEP sale. Sales are made at different LOTs if 
they are made at different marketing stages (or their equivalent). See 
19 CFR 351.412(c)(2). Substantial differences in selling activities are 
a necessary, but not sufficient condition for determining that there is 
a difference in the stages of marketing. Id.; see also Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Cut-to-Length 
Carbon Steel Plate From South Africa, 62 FR 61731, 61732 (November 19, 
1997) (South African Plate Final). In order to determine whether the 
comparison sales were at different stages in the marketing process than 
the U.S. sales, we reviewed the distribution system in each market 
(i.e., the chain of distribution),\3\ including selling functions,\4\ 
class of customer (customer category), and the level of selling 
expenses for each type of sale.
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    \3\ The marketing process in the United States and in the 
comparison markets begins with the producer and extends to the sale 
to the final user or consumer. The chain of distribution between the 
two may have many or few links, and the respondents' sales occur 
somewhere along this chain. In performing this evaluation, we 
considered the narrative responses of the respondent to properly 
determine where in the chain of distribution the sale occurs.
    \4\ Selling functions associated with a particular chain of 
distribution help us to evaluate the level(s) of trade in a 
particular market. For purposes of these preliminary results, we 
have organized the common selling functions into four major 
categories: sales process and marketing support, technical service, 
freight and delivery, and inventory maintenance.
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    Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying 
levels of trade for EP and comparison market sales (i.e., NV based on 
either home market or third-country prices), we consider the starting 
prices before any adjustments. With respect to CEP sales, the 
Department removes the selling activities set forth in section 772(d) 
of the Act from the CEP starting price prior to performing its LOT 
analysis. See Micron Technology, Inc. v. United States, 243 F.3d 1301, 
1315 (Fed. Cir. 2001). As such, for CEP sales, the U.S. LOT is based on 
the starting price of the sales, as adjusted under section 772(d) of 
the Act.
    When the Department is unable to match U.S. sales to sales of the 
foreign like product in the comparison market at the same LOT as the EP 
or CEP sale, the Department may compare the U.S. sale to sales at a 
different LOT in the comparison market. Vita reported that the selling 
activities for its respective comparison market and U.S. market 
channels were made at the same level of trade. After conducting an 
analysis of Vita's sales channels and selling activities, the 
Department preliminarily determines that no level of trade adjustment 
is necessary for Vita, consistent with what Vita reported in its 
respective questionnaire responses. For further details on the 
Department's LOT analysis, see Vita Preliminary Analysis Memorandum.

Currency Conversion

    In accordance with section 773A of the Act, we made currency 
conversions based on the official exchange rates in effect on the dates 
of the U.S. sales as certified by the Federal Reserve Bank of New York. 
See also 19 CFR 351.415.

Preliminary Results of Review

    As a result of this review, we preliminarily find that the 
following weighted-average dumping margins exist:

------------------------------------------------------------------------
                    Manufacturer/Exporter                       Margin
------------------------------------------------------------------------
Vita Food Factory (1989) Ltd................................      2.48 %
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Cash Deposits

    Pursuant to section 751(d)(2) of the Act and 19 CFR 
351.222(i)(2)(i), the Department revoked this order and notified U.S. 
Customs and Border Protection (CBP) to discontinue suspension of 
liquidation and collection of cash deposits on entries of the subject

[[Page 45699]]

merchandise entered or withdrawn from warehouse on or after October 31, 
2007, the effective date of revocation of this AD order. See Canned 
Pineapple Fruit from Thailand: Notice of Final Results of Changed 
Circumstances Review of the Antidumping Duty Order and Revocation of 
Antidumping Duty Order, 73 FR 21311 (April 21, 2008). Therefore, cash 
deposits of estimated antidumping duties are no longer required.

Duty Assessment

    Upon publication of the final results of this review, the 
Department shall determine, and CBP shall assess, antidumping duties on 
all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), the 
Department calculates an assessment rate for each importer of the 
subject merchandise for each respondent. In accordance with 19 CFR 
351.212(b)(1), we will calculate importer-specific assessment rates on 
the basis of the ratio of the total amount of antidumping duties 
calculated for the examined sales and the total entered value of the 
examined sales. These rates will be assessed uniformly on all entries 
of the respective importers made during the POR if these preliminary 
results are adopted in the final results of review. The Department 
intends to issue appropriate assessment instructions directly to CBP 15 
days after the date of publication of the final results of this review.
    The Department clarified its ``automatic assessment'' regulation on 
May 6, 2003. See Antidumping and Countervailing Duty Proceedings: 
Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) (Assessment 
Policy Notice). This clarification will apply to entries of subject 
merchandise during the POR produced by companies included in the final 
results of review for which the reviewed companies did not know that 
the merchandise it sold to the intermediary (e.g., a reseller, trading 
company, or exporter) was destined for the United States. In such 
instances, we will instruct CBP to liquidate unreviewed entries at the 
all-others rate if there is no rate for the intermediary involved in 
the transaction. See Assessment Policy Notice for a full discussion of 
this clarification.

Public Comment

    Pursuant to 19 CFR 351.224(b), the Department will disclose to any 
party to the proceeding the calculations performed in connection with 
these preliminary results within five days after the date of public 
announcement of this notice. Pursuant to 19 CFR 351.309, interested 
parties may submit written comments in response to these preliminary 
results. Unless extended by the Department, case briefs are to be 
submitted within 30 days after the date of publication of this notice. 
Rebuttal briefs, limited to arguments raised in case briefs, may be 
submitted no later than five days after the time limit for filing case 
briefs. Parties who submit arguments in this proceeding are requested 
to submit with the argument: 1) a statement of the issues; 2) a brief 
summary of the argument; and 3) a table of authorities. See 19 CFR 
309(c)(2). Case and rebuttal briefs must be served on interested 
parties in accordance with 19 CFR 351.303(f).
    Also, pursuant to 19 CFR 351.310(c), interested parties who wish to 
request a hearing or to participate if one is requested must submit a 
written request to the Assistant Secretary for Import Administration 
within 30 days of the publication of this notice. Requests should 
contain 1) the party's name, address and telephone number; 2) the 
number of participants; and, 3) a list of issues to be raised. Issues 
raised in the hearing will be limited to those raised in the respective 
case briefs. Unless the Secretary specifies otherwise, the hearing, if 
requested, will be held two days after the date for submission of 
rebuttal briefs. Parties will be notified of the time and location.
    The Department will issue the final results of this administrative 
review within 120 days after the publication of this notice, unless 
extended. See section 751(a)(3)(A) of the Act; 19 CFR 351.213(h).

Notification to Importers

    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    The preliminary results of this administrative review and this 
notice are issued and published in accordance with sections 751(a)(1) 
and 777(i)(1) of the Act.

    Dated: July 29, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-18027 Filed 8-5-08; 8:45 am]
BILLING CODE 3510-DS-S