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Notice

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

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Information about this document as published in the Federal Register.

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

In response to requests by certain producers/exporters of the subject merchandise and the petitioners,[1] the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on canned pineapple fruit (CPF) from Thailand. This review covers two producers/exporters of the subject merchandise. The period of review (POR) is July 1, 2003, through June 30, 2004.

The Department has preliminarily determined that the companies subject to this review made U.S. sales at prices less than normal value (NV). If these preliminary results are adopted in our final results of administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on these preliminary results of review. We will issue the final results of review no later than 120 days from the date of publication of this notice.

DATES:

Effective August 8, 2005.

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FOR FURTHER INFORMATION CONTACT:

Magd Zalok or Drew Jackson, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-4162 or (202) 482-4406, respectively.

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SUPPLEMENTARY INFORMATION:

Background

On July 1, 2004, 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, 69 FR 39903 (July 1, 2004). In accordance with 19 CFR 351.213(b)(2), during July 2004, the following producers/exporters requested that the Department conduct an administrative review of their sales and entries of subject merchandise into the United Stated during the POR: Vita Food Factory (1989) Co., Ltd. (Vita); Thai Pineapple Canning Industry Corp., Ltd. (TPC); and the Dole Food Company, Inc., Dole Packaged Foods Company, and Dole Thailand, Ltd. (collectively, Dole). Additionally, in accordance with 19 CFR 351.213(b)(1), on July 29, 2004, the petitioners requested that the Department conduct a review of The Thai Pineapple Public Company (TIPCO); Vita; The Parchuab Fruit Canning Co., Ltd. (PRAFT); Dole; and Kuiburi Fruit Canning Co., Ltd. (KFC). Start Printed Page 45652On August 30, 2004, the Department initiated an administrative review of PRAFT, TPC, and Vita.[2] See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 69 FR 52857 (August 30, 2004).

On August 20, 2004, the Department issued its antidumping questionnaire to PRAFT, TPC, and Vita. On September 1, 2004, PRAFT informed the Department that it had no sales or shipments of the subject merchandise during the POR. In September and October 2004, TPC and Vita responded to the Department's antidumping questionnaire. Subsequently, the Department issued supplemental questionnaires to TPC and Vita. Throughout this administrative review, the petitioners have submitted comments regarding the respondents' questionnaire responses.

Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the (Act), the Department may extend the deadline for completion of an administrative review if it determines that it is not practicable to complete the review within the statutory time limit of 245 days. On February 28, 2005, the Department extended the time limits for the preliminary results of review until August 1, 2005 (see Canned Pineapple Fruit From Thailand: Notice of Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Review, 70 FR 10952 (March 7, 2005).

During March 2005, the Department conducted a verification of Vita. On June 3, 2005, TPC submitted a letter to the Department in which it stated it would not participate in the scheduled verifications of its sales and cost information and would no longer participate in the administrative review.

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

Period of Review

The POR is July 1, 2003, through June 30, 2004.

Scope of the Order

The product covered by the order is canned pineapple fruit, 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. Imports of canned pineapple fruit are 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 canned pineapple fruit packed in a sugar-based syrup; HTSUS 2008.20.0090 covers CPF packed without added sugar (i.e., juice-packed). The HTSUS subheadings are provided for convenience and customs purposes. The written description of the merchandise covered buy this order is dispositive.

Partial Preliminary Rescission of Review

As noted above, PRAFT informed the Department that it had no shipments of subject merchandise to the United States during the POR. The Department confirmed, through CBP data, that there were no entries of subject merchandise from PRAFT during the POR. Therefore, in accordance with 19 CFR 351.213(d)(3), and consistent with the Department's practice, we are preliminarily rescinding our review of PRAFT. See, e.g., Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination Not To Revoke in Part, 68 FR 53127, 53128 (September 9, 2003).

Verification

As provided in section 782(i) of the Act, during March 2005, the Department conducted a verification of the sales and cost information; provided by Vita. The Department conducted the verification using standard procedures, including on-site inspection of the manufacturer's facilities, examination of relevant sales, cost of production, and financial records, and selection of relevant source documentation as exhibits. The Department's verification findings may be found in the memorandum to the file dated July 21, 2005, the public version of which is on file in the Central Records Unit (CRU), Room B-099, of the Department's main building.

Use of Adverse Facts Available (AFA)

Section 776(a)(2) of the Act provides that, if an interested party (A) withholds information requested by the Department, (B) fails to provide such information by the deadline, or in the form or manner requested, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified, the Department shall use, subject to sections 782(d) and (e) of the Act, facts otherwise available in reaching the applicable determination.

Pursuant to section 782(e) of the Act, 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; and (5) the information can be used without undue difficulties.

In a letter submitted to the Department on June 3, 2005, TPC declined to participate in the Department's scheduled verifications of its responses, and withdrew from further participation in the instant administrative review. Because TPC did not agree to the requested verification, the accuracy and completeness of its submitted information has not been established and such information cannot be relied upon. TPC's refusal to allow verification has hindered the calculation of an accurate dumping margin for the company and impeded the proceeding. Therefore, pursuant to sections 776(a)(2)(C) and (D) of the Act, we have based TPC's dumping margin on total facts available (FA).

In selecting from among the facts otherwise available, section 776(b) of the Act authorizes the Department to use an adverse inference if the Department finds that an interested party failed to cooperate by not acting to the best of its ability to comply with a request for information. See, e.g., Certain Welded Carbon Steel Pipes and Tubes From Thailand: Final Results of Antidumping Duty Administrative Review, 62 FR 53808, 53819-20 (October 16, 1997). As a general matter, it is reasonable for the Department to assume that TPC possessed the records necessary for the Department to complete its verification of TPC's responses. Therefore, by declining to participate in verification, TPC failed to cooperate to the best of its ability. See Crawfish Processors Alliance v. United States, 343 F. Supp.2d 1242 (CIT 2004) (approving use of AFA when respondent refused to participate in verification). As TPC failed to cooperate to the best of its ability, we are applying an adverse inference pursuant to section 776(b) of the Act. Specifically, we have preliminarily assigned to TPC as AFA, a rate of 51.16 percent, the highest rate determined for any respondent during any segment of this proceeding. This rate was calculated for a respondent in the less than fair value investigation. Start Printed Page 45653 See Notice of Antidumping Duty Order and Amended Final Determination: Canned Pineapple Fruit From Thailand, 60 FR 36775 (July 18, 1995).

A. Corroboration of Information

Section 776(b) of the Act authorizes the Department to use as AFA information derived from the petition, the final determination from the LTFV investigation, a previous administrative review, or any other information placed on the record.

Section 776(c) of the Act requires the Department to corroborate, to the extent practicable, secondary information used as FA. Secondary information is defined as “{i}nformation derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.” See Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreements Act (URAA), H.R. Doc. No. 103-316 at 870 (1994), and 19 CFR 351.308(d).

The SAA clarifies that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value (see SAA at 870). The SAA also states that independent sources used to corroborate such evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation. Id. To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used. However, unlike other types of information, such as input costs or selling expenses, there are no independent sources for calculated dumping margins. This, in an administrative review, if the Department chooses as total AFA a calculated dumping margin from a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period. With respect to the relevancy aspect of corroboration, however, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. See, e.g., Fresh Cut Flowers From Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22, 1996) (where the Department disregarded the highest margin as AFA because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin). We preliminarily determine that this rate is appropriate because it was calculated for another respondent in a prior segment of this proceeding, and it has been judicially invalidated. Thus, we consider the calculated rate of 51.16 to be corroborated.

Comparison Methodology

In order to determine whether Vita sold CPF to the United States at prices less than NV, the Department compared the export price (EP) of individual U.S. sales to the monthly weighted-average NV of sales of the foreign like product made in the ordinary course of trade (see section 777A(d)(2) of the Act; see also section 773(a)(1)(B)(i) of the Act). In accordance with section 771(16) of the Act, the Department considered all products within the scope of the order under review that the respondent sold in the comparison market during the POR to be foreign like products for purposes of determining appropriate product comparisons to CPF sold in the United States. The Department compared U.S. sales to sales made in the comparison market within the contemporaneous window period, which extends from three months prior to the U.S. sale until two months after the sale. Where there were no sales of identical merchandise made in the comparison market in the ordinary course of trade, the Department compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making product comparisons, the Department selected identical and most similar foreign like product based on the physical characteristics reported by Vita in the following order of importance: weight, form, variety, and grade. Where there were no appropriate sales of foreign like product to compare to a U.S. sale, we compared the price of the U.S. sale to constructed value (CV), in accordance with section 773(a)(4) of the Act.

Export Price

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. We calculated EP using the packed prices charged to unaffiliated customers in the United States or unaffiliated customers for exportation to the United States. In accordance with section 772(c)(2)(A) of the Act, in calculating EP, we made deductions from the starting price for movement expenses, including, where applicable, charges for transportation, handling, bill of lading preparation, containerization, exportation and port use, documentation, and haulage. See Analysis Memorandum for Vita Food Factory (1989) Co., Ltd., (Vita Analysis Memorandum) dated concurrently with this notice.

Normal Value

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

A. Home Market Viability

In accordance with section 773(a)(1)(B) 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 is greater than or equal to five percent of the aggregate volume of U.S. sales), we compared the aggregate volume of Vita's home market sales of the foreign like product to the aggregate volume of the U.S. sales of subject merchandise. Because the aggregate volume of Vita's home market sales of foreign like product is less than five percent of the aggregate volume of the 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, and third-country market with the greatest volume of foreign like product sales.

B. Cost of Production (COP) Analysis

In the most recently completed administrative review, the Department determined that Vita sold foreign like product at prices below the cost of producing the merchandise and excluded such sales from the calculation of NV. As a result, the Department determined that there are reasonable grounds to believe or suspect that during the instant POR, Vita sold the foreign like product at prices below the cost of producing the merchandise, see section 773(b)(2)(A)(ii) of the Act, and the Department initiated a sales below cost inquiry for Vita.Start Printed Page 45654

1. Calculation of COP

In accordance with section 773(b)(3) of the Act, for each unique foreign like product sold by Vita during the POR, we calculated a weighted average COP based on the sum of the respondent's materials and fabrication costs and selling, general and administrative (SG&A) expertise, including interest expenses, and packing costs. Consistent with the position taken by the Department in prior segments of this proceeding, for reporting purposes, Vita allocated certain costs between solid and juice products using the net realizable value (NRV) of the products during the five-year period of 1990 through 1994. We relied on the costs submitted by Vita except for the following items, which were revised based upon our verification findings: pineapples, citric acid, steam and labor. For details regarding these revisions, see the Vita verification report (Vita Verification Report), dated July 21, 2005, and the Vita Analysis Memorandum.

2. Test of Comparison Market Sales Prices

In order to determine whether sales were made at prices below the COP, on a product-specific basis we compared the respondent's weighted average COPs, adjusted as noted above, to the prices of its comparison market sales of foreign like product, as required under section 773(b) of the Act. In accordance with section 773(b)(1)(A) and (B) of the Act, in determining whether to disregard comparison market sales made at prices less than the COP we examined whether such sales were made: (1) In substantial quantities within an extended period of time; and (2) at prices which permitted the recovery of all costs within a reasonable period of time. We compared the COP to comparison market sales prices, less any applicable movement charges.

3. Results of the COP Test

Pursuant to section 773(b)(2)(C) of the Act, where less than 20 percent of a respondent's sales of a given product were made at prices less than the COP, we did not disregard any below-cost sales of that product because the below-cost sales were not made in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product were made at prices less than the COP during the POR, we determined such sales to have been made in “substantial quantities” and within an extended period of time (i.e., one year) pursuant to sections 773(b)(2)(B) and (C) of the Act. Based on our comparison of POR average costs to reported prices, we also determined, in accordance with section 773(b)(2)(D) of the Act, that certain sales were not made at prices which would permit recovery of all costs within a reasonable period of time. As a result, we disregarded such below-cost sales.

Price-to-Price Comparisons

Where it was appropriate to base NV on prices, we used the prices at which the foreign like product was first sold for consumption in the comparison market, in the usual commercial quantities, in the ordinary of trade, and, to the extent possible, at the same level of trade (LOT) as the comparison U.S. sale.

For Vita, we based NV on the prices of its sales to unaffiliated customers in Germany. We made adjustments, where appropriate, for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act. In accordance with sections 773(a)(6)(A), (B), and (C) of the Act, where appropriate, we deducted from the starting price movement expenses. We also made circumstance of sale adjustments to account for differences in packing, credit and other direct selling expenses incurred in the comparison and U.S. markets. In addition, where applicable, pursuant to 19 CFR 351.410(e), we made a reasonable allowance for other selling expenses where commissions were paid in only one of the markets under consideration. Based on our verification findings, we revised credit, indirect selling expenses, and bank charges reported by Vita. For details regarding these revisions, see the Vita Verification Report, and the Vita Analysis Memorandum. In accordance with the Department's practice, where all contemporaneous matches to a U.S. sale resulted in difference-in-merchandise adjustments exceeding 20 percent of the cost of manufacturing the product sold in the United States, we based NV on CV.

Price-to-CV Comparisons

In accordance with section 773(a)(4) of the Act, we based NV on CV when we were unable to compare the U.S. sale to a comparison market sale of an identical or similar product. For each unique CPF product sold by Vita in the United States during the POR, we calculated a weighted-average CV based on the sum of the respondent's materials and fabrication costs, SG&A expenses, including interest expenses, packing costs, 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 Germany. We based selling expenses on weighted-average actual comparison market direct and indirect selling expenses. In calculating CV, we adjusted the reported costs as described in the COP section above.

Level of Trade

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

To determine whether NV sales are at a different LOT than the EP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT, and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison-market sales at the LOT of the export transaction, we make a LOT adjustment under section 773(a)(7)(A) of the Act.

In determining whether separate LOTs exist, we obtained information from Vita regarding the marketing stages for the reported U.S. and comparison market sales, including a description of the selling activities performed by Vita for each channel of distribution. Generally, if the reported LOTs are the same, the functions and activities of the seller at each level should be similar. Conversely, if a party reports that LOTs are different for different groups of sales, the selling functions and activities of the seller for each group should be dissimilar.

Vita reported that it sold the merchandise under review to two types of customers, sales agents and end users, in the United States and Germany through one channel of distribution in each market. See Vita's September 7, 2004, and October 12, 2004, questionnaire responses at 19-23. In each channel of distribution, Vita engaged in the following selling activities for both types of customers: order processing, packing, freight and delivery, providing warranties, and paying sales commissions. Because the Start Printed Page 45655one sales channel in the United States involves the same functions for all sales, and the one sales channel in Germany also involves the same functions for all sales, we have preliminarily determined that there is one LOT in the United States and one LOT in Germany. Moreover, because Vita performed nearly identical selling functions for U.S. and German sales (the only difference being that, at times, Vita arranged the international shipping for German sales, whereas it did not provide this service for U.S. sales), we have preliminarily determined that, during the POR, Vita sold the foreign like product and subject merchandise at the same LOT. Therefore, we have determined that a LOT adjustment is not warranted.

Currency Conversion

Pursuant to section 773A(a) of the Act, we converted amounts expressed in foreign currencies into U.S. dollar amounts based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.

Preliminary Results of Review

As a result of this review, we preliminarily determined that the following weighted-average dumping margins exist for the period July 1, 2003, through June 30, 2004:

Manufacturer/ExporterMargin (percent)
Vita Food Factory (1989) Ltd.9.12
Thai Pineapple Canning Industry Corp., Ltd51.16

Public Comment

Within 10 days of publicly announcing the preliminary results of this review, we will disclose to interested parties, any calculations performed in connection with the preliminary results. See 19 CFR 351.224(b). Any interested party may request a hearing within 30 days of the publication of this notice in the Federal Register. See 19 § 351.310(c). If requested, a hearing will be held 44 days after the date of publication of this notice in the Federal Register, or the first workday thereafter. Interested parties are invited to comment on the preliminary results of this review. The Department will consider case briefs filed by interested parties within 30 days after the date of publication of this notice in the Federal Register. Also, interested parties may file rebuttal briefs, limited to issues raised in the case briefs. The Department will consider rebuttal briefs filed not later than five days after the time limit for filing case briefs. Parties who submit arguments are requested to submit with each argument: (1) A statement of the issue, (2) a brief summary of the argument and, (3) a table of authorities. Further, we request that parties submitting written comments provide the Department with a diskette containing an electronic copy of the public version of such comments. Unless the deadline for issuing the final results of review is extended, the Department will issue the final results of this administrative review, including the results of its analysis of issues raised in the written comments, within 120 days of publication of the preliminary results in the Federal Register.

Assessment Rates

Upon completion of this administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we calculated importer-specific assessment rather for Vita's subject merchandise. Since Vita did not report the entered value for its sales, we calculated per-unit assessment rates for its merchandise by aggregating the dumping margins calculated for all U.S. sales to each importer and dividing this amount by the total quantity of those sales. To determine whether the per-unit duty assessment rates were de minimis (i.e., less than 0.50 percent ad valorem), in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer-specific ad valorem ratios based on export prices. For TPC, the respondent received a dumping margin based upon AFA, we will instruct CBP to liquidate entries according to the AFA ad valorem rate. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of this review.

Cash Deposit Requirements

The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rate for the reviewed companies will be the rate established in the final results of the review (except that if the rate for a particular company is de minimis, i.e., less than 0.5 percent, no cash deposit will be required for that company); (2) for previously investigated or review companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be the “all others” rate of 24.64 percent, which is the “all others” rate established in the LTFV investigation. These cash deposit rates, when imposed, shall remain in effect until publication of the final results of the next administrative review.

Notification of 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 within this requirement could result in the Secretary's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties.

We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

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Dated: August 1, 2005.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.

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Footnotes

1.  The petitioners are Maui Pineapple Company Ltd. and the International Longshoreman's and Warehouseman's Union.

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2.  The Department did not initiate an administrative review of Dole, KFC, and TIPCO because it revoked the order on CPF from Thailand with respect to these companies in the final results of the prior (July 1, 2002, through June 30, 2003) administrative review. See Notice of Final Results of Antidumping Duty Administrative Review and Final Determination to Revoke Order in Part: Canned Pineapple Fruit from Thailand, 60 FR 50164 (August 13, 2004).

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[FR Doc. 05-15640 Filed 8-5-05; 8:45 am]

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