Notices. Import Administration, International Trade Administration, Department of Commerce

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BILLING CODE 3410-11-M COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the South Dakota Advisory Committee Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights, that a meeting of the South Dakota State Advisory Committee will convene at 1 p.m.

(MST)and adjourn at 4 p.m. (MST), Wednesday, March 22, 2006, at the Holiday Inn, 100 West 8th Street, Sioux Falls. The purpose of the meeting is to provide an overview of the U.S. Commission on Civil Rights, including recent Commission activities; discuss continuing impacts of the South Dakota SAC's report, *Native Americans in South Dakota: An Erosion of Confidence in the Justice System* (March 2000); discuss requested report on elementary and secondary school desegregation; and planning through December 2006. Persons desiring additional information, or planning a presentation to the Committee, should contact John F. Dulles, Director of the Rocky Mountain Regional Office,

(303)866-1040 (TDD 303-866-1049). Hearing-impaired persons who will attend the meeting and require the services of a sign language interpreter should contact the Regional Office at least ten

(10)working days before the scheduled date of the meeting. The meeting will be conducted pursuant to the provisions of the rules and regulations of the Commission. Dated at Washington, DC, February 24, 2006. Ivy L. Davis, Chief, Regional Programs Coordination Unit. [FR Doc. E6-3119 Filed 3-3-06; 8:45 am] BILLING CODE 6335-01-P DEPARTMENT OF COMMERCE International Trade Administration A-821-811 Final Results of Five-year Sunset Review of Suspended Antidumping Duty Investigation on Ammonium Nitrate from the Russian Federation AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On April 1, 2005, the Department of Commerce (“the Department”) initiated a sunset review of the suspended antidumping duty investigation on ammonium nitrate from the Russian Federation (“Russia”) pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). *See Notice of Initiation of Five-year (“Sunset”) Reviews* , 70 FR 16800 (April 1, 2005) (“ *Initiation Notice* ”). On the basis of notices of intent to participate filed on behalf of domestic interested parties and adequate substantive comments filed on behalf of domestic and respondent interested parties, the Department conducted a full (240-day) review. As a result of this review, the Department finds that termination of the suspended antidumping duty investigation on ammonium nitrate from Russia would likely lead to continuation or recurrence of dumping at the levels indicated in the Final Results of Review section of this notice. EFFECTIVE DATE: March 6, 2006. FOR FURTHER INFORMATION CONTACT: Judith Wey Rudman or Aishe Allen, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone:

(202)482-0192, or 482-0172, respectively. SUPPLEMENTARY INFORMATION: Scope of the Review The products covered by the sunset review of the suspended antidumping duty investigation on ammonium nitrate from Russia include solid, fertilizer grade ammonium nitrate products, whether prilled, granular or in other solid form, with or without additives or coating, and with a bulk density equal to or greater than 53 pounds per cubic foot. Specifically excluded from this scope is solid ammonium nitrate with a bulk density less than 53 pounds per cubic foot (commonly referred to as industrial or explosive grade ammonium nitrate). The merchandise subject to this review is classified in the Harmonized Tariff Schedule of the United States (“HTSUS”) at subheading 3102.30.00.00. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise within the scope of this sunset review is dispositive. History of the Suspension Agreement On August 12, 1999, the Department initiated an antidumping duty investigation under section 732 of the Act on ammonium nitrate from Russia. See Initiation of Antidumping Duty Investigation: Solid Fertilizer Grade Ammonium Nitrate From the Russian Federation, 64 FR 45236 (August 19, 1999). On January 7, 2000, the Department preliminarily determined that ammonium nitrate from Russia is being, or is likely to be, sold in the United States at less than fair value. *See Notice of Preliminary Determination of Sales at Less Than Fair Value: Solid Fertilizer Grade Ammonium Nitrate From the Russian Federation* , 65 FR 1139 (January 7, 2000). The Department suspended the antidumping duty investigation on ammonium nitrate from Russia effective May 19, 2000. The basis for this action was an agreement between the Department and the Ministry of Trade of the Russian Federation (“MOT”) accounting for substantially all imports of ammonium nitrate from Russia, wherein the MOT has agreed to restrict exports of ammonium nitrate from all Russian producers/exporters to the United States and to ensure that such exports are sold at or above the agreed reference price. *See Suspension of Antidumping Duty Investigation: Solid Fertilizer Grade Ammonium Nitrate From the Russian Federation* , 65 FR 37759 (June 16, 2000) (“ *Suspension Agreement* ”). Thereafter, pursuant to a request by the petitioner, the Committee for Fair Ammonium Nitrate Trade (“COFANT”), the Department completed its investigation and published in the **Federal Register** its final determination of sales at less that fair value. *See Notice of Final Determination of Sales at Less Than Fair Value; Solid Fertilizer Grade Ammonium Nitrate From the Russian Federation* , 65 FR 42669 (July 11, 2000) (“ *Final Determination* ”). In the Final Determination, the Department calculated weighted-average dumping margins of 253.98 percent for Nevinnomyssky Azot, a respondent company in the investigation, and for the Russia-wide entity. The *Suspension Agreement* remains in effect for all manufacturers, producers, and exporters of ammonium nitrate from Russia. Background On April 1, 2005, the Department initiated a sunset review of the suspended antidumping duty investigation on ammonium nitrate from Russia, pursuant to section 751(c) of the Act. *See Notice of Initiation of Five-year (“Sunset”) Reviews* , 70 FR 16800 (April 1, 2005). On October 24, 2005, the Department published the preliminary results of the full sunset review of the suspended antidumping duty investigation on ammonium nitrate from Russia. *See Preliminary Results of Five-year Sunset Review of Suspended Antidumping Duty investigation on Ammonium Nitrate from the Russian Federation* , 70 FR 61431 (October 24, 2005) (“ *Preliminary Results* ”) and the accompanying *Issues and Decision Memorandum for the Preliminary Results of the Full Five-year Sunset Review of the Suspended Antidumping Duty Investigation on Ammonium Nitrate from the Russian Federation (“Preliminary Results Decision Memorandum”)* . In the *Preliminary Results* , the Department preliminarily found that the termination of the suspended antidumping duty investigation would likely lead to continuation or recurrence of dumping (for a full discussion of the Department's preliminary finding see the *Preliminary Results and the Preliminary Results Decision Memorandum* ). On December 7, 2005, the Department received a case brief from the petitioner in this proceeding, the Committee for Fair Ammonium Nitrate Trade (“COFANT”). No other case briefs or rebuttal briefs were received. Analysis of Comments Received All issues raised by parties to this sunset review are addressed in the *Issues and Decision Memorandum for the Final Results of the of the Full Five-year Sunset Review of the Suspended Antidumping Duty Investigation on Ammonium Nitrate from the Russian Federation (“Final Results Decision Memorandum”)* from Joseph A. Spetrini, Deputy Assistant Secretary for Policy and Negotiations, to David M. Spooner, Assistant Secretary for Import Administration, dated February 27, 2006, which is adopted by this notice. The issues discussed in the *Final Results Decision Memorandum* include the likelihood of continuation or recurrence of dumping and the magnitude of the margins likely to prevail were the suspended antidumping duty investigation to be terminated. Parties may find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum which is on file in the Central Records Unit, room B-099, of the main Department of Commerce building. In addition, a complete version of the *Final Results Decision Memorandum* can be accessed directly on the Web at http://ia.ita.doc.gov/frn. The paper copy and electronic version of the *Final Results Decision Memorandum* are identical in content. Final Results of Review We determine that termination of the suspended antidumping duty investigation on ammonium nitrate from Russia would likely lead to a continuation or recurrence of dumping at the following percentage weighted-average margin: Exporter/manufacturer Weighted-average margin (percent) JSC Azot Nevinnomyssky 253.98 Russia-Wide 253.98 This notice also serves as the only reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305 of the Department's regulations. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction. This sunset review and notice are in accordance with sections 751(c), 752, and 777(i)(1) of the Act. Dated: February 27, 2006. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E6-3086 Filed 3-3-06; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-475-826] Certain Cut-To-Length Carbon-Quality Steel Plate Products From Italy: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: In response to a request by Nucor Corporation (Nucor), the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on certain cut-to-length carbon-quality steel plate products (CTL Plate) from Italy. The period of review

(POR)is February 1, 2004 through January 31, 2005. This review covers five producers/exporters of subject merchandise. Based upon our analysis of the record evidence, we preliminarily find that the application of adverse facts available

(AFA)is warranted with respect to Palini and Bertoli S.p.A. (Palini). Further, we are preliminarily rescinding the review with respect to Trametal S.p.A. (Trametal) because there is no entry against which to collect duties. We are also preliminarily rescinding the review for Ilva S.p.A. (Ilva), Metalcam S.p.A. (Metalcam) and Riva Fire S.p.A. (Riva Fire), because they had no shipments during the POR. 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. EFFECTIVE DATE: March 6, 2006. FOR FURTHER INFORMATION CONTACT: Thomas Martin or Mark Manning; 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)482-3936 or

(202)482-5253, respectively. SUPPLEMENTARY INFORMATION: Background On February 10, 2000, the Department published an antidumping duty order on CTL Plate from Italy. *See Notice of Amendment of Final Determinations of Sales at Less Than Fair Value and Antidumping Duty Orders: Certain Cut-To-Length Carbon-Quality Steel Plate Products From France, India, Indonesia, Italy, Japan and the Republic of Korea* , 65 FR 6585 (February 10, 2000) ( *Amended Final and Orders* ). On February 1, 2005, the Department published a notice of opportunity to request an administrative review of this order. *See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review* , 70 FR 5136 (February 1, 2005). In accordance with 19 CFR 351.213(b)(1), on February 28, 2005, Nucor, a domestic producer of subject merchandise requested that the Department conduct an administrative review of Palini, Ilva, Metalcam, Riva Fire, and Trametal. On March 23, 2005, the Department published a notice of initiation of administrative review of the antidumping duty order on CTL Plate from Italy covering the period February 1, 2004 through January 31, 2005. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part* , 70 FR 14643 (March 23, 2005). On May 11, 2005, the Department issued section A of the antidumping duty questionnaire to Palini, Ilva, Metalcam, Riva Fire, and Trametal. In response, Ilva, Metalcam, and Riva Fire informed the Department via letters dated May 24, 2005, and May 30, 2005, that they did not ship subject merchandise to the United States during the POR. The Department received no response from Palini or Trametal. On June 6, 2005, the Department sent a letter to Palini and Trametal asking whether the reason they had not responded to the questionnaire was because they had made no shipments of subject merchandise to the United States during the POR. On June 13, 2005, Trametal informed the Department that it made one sale of subject merchandise to the United States. The Department confirmed Trametal's claim of a single U.S. sale by reviewing CBP import data and entry documents. Although the entry documents appear to indicate that Trametal shipped subject merchandise in its single sale to the United States during the POR, the importer did not enter the goods as subject to the antidumping order, and CBP liquidated the entry under its own authority. There is no evidence to indicate that Trametal has any connection to this importer. On June 14, 2005, Palini informed the Department that if there were any exports to the United States, they were made through an unaffiliated Canadian customer, and it did not know what portion of its sales to that customer were ultimately shipped to the U.S. market. The Department reviewed CBP data and entry documentation and found that certain entry documents appeared to contradict Palini's claim that it had no knowledge of which sales to its Canadian customer entered the United States. On January 5, 2006, the Department sent Palini a supplemental questionnaire, asking additional questions about its sales to the Canadian customer, during the POR, and whether Palini had knowledge of the port of discharge of those sales. In its response to the Department's January 25, 2006, supplemental questionnaire, Palini explained that, at the time of cargo readiness, its customer advises Palini of the discharge port for sales to the United States and Canada. Palini noted that, although some shipments were sent directly to the United States, it did not know whether the merchandise remained in the United States, or if it was re-exported from the United States to Canada. Scope of the Order The products covered by the scope of this order are certain hot-rolled carbon-quality steel:

(1)Universal mill plates ( *i.e.* , flat-rolled products rolled on four faces or in a closed box pass, of a width exceeding 150 mm but no exceeding 1250 mm, and of a nominal or actual thickness of not less then 4 mm, which are cut-to-length (not in coils) and without patterns in relief), of iron or non-alloy-quality steel; and

(2)flat-rolled products, hot-rolled, of a nominal or actual thickness of 4.75 mm or more and of a width which exceeds 150 mm and measures at least twice the thickness, and which are cut-to-length (not in coils). Steel products to be included in this scope are of rectangular, square, circular or other shape and of rectangular or non-rectangular cross-section where such non-rectangular 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. Steel products that meet the noted physical characteristics that are painted, varnished or coated with plastic or other non-metallic substances are included within this scope. Also, specifically included in this scope are high strength, low alloy

(HSLA)steels. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. Steel products to be included in this scope, regardless of Harmonized Tariff Schedule of the United States (HTSUS) definitions, are products in which:

(1)Iron predominates, by weight, over each of the other contained elements,

(2)the carbon content is two percent or less, by weight, and

(3)none of the elements listed below is equal to or exceeds the quantity, by weight, respectively indicated: 1.80 percent of manganese, or 1.50 percent of silicon, or 1.00 percent of cooper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.41 percent of titanium, or 0.15 of vanadium, or 0.15 percent zirconium. All products that meet the written physical description, and in which the chemistry quantities do not equal or exceed any one of the levels listed above, are within the scope of this order unless otherwise specifically excluded. The following products are specifically excluded from this order:

(1)Products clad, plated, or coated with metal, whether or not painted, varnished or coated with plastic or other non-metallic substances;

(2)SAE grades (formerly AISI grades) of series 2300 and above;

(3)products made to ASTM A710 and A736 or their proprietary equivalents;

(4)abrasion-resistant steels ( *i.e.* , USS AR 400, USS AR 500);

(5)products made to ASTM A202, A225, A514 grade S, A517 grade S. or their proprietary equivalents;

(6)ball bearing steels;

(7)tool steels; and

(8)silicon manganese steel or silicon electric steel. The merchandise subject to this order is classified in the HTSUS under subheadings: 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.000, 7208.90.000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7225.40.3050, 7225.40.7000, 7225.50.6000, 7225.90.0090, 7226.91.5000, 7226.91.7000, 7226.91.8000, 7226.99.0000. Although the HTSUS subheadings are provided for convenience and Customs purposes, the written description of the merchandise subject to this order is dispositive. Application of Knowledge Test Based on our examination of the questionnaire responses, we preliminarily determine, in accordance with the Department's established practice, that Palini knew or should have known that the merchandise under review was for export to the United States at the time of the sale. Under section 772(a) of the Tariff Act of 1930, as amended, (the Act) the basis for export price is the price at which the first party in the chain of distribution who has knowledge of the U.S. destination of the merchandise sells the subject merchandise, either directly to a U.S. purchaser or to an intermediary such as a trading company. The party making such a sale, with knowledge of the destination, is the appropriate party to be reviewed. *See Certain Pasta from Italy: Termination of New Shipper Antidumping Duty Administrative Review* , 62 FR 66602 (December 19, 1997) ( *Pasta from Italy* ). The Department's test for determining knowledge is whether the relevant party knew or should have known that the merchandise was destined for the United States. *See Statement of Administrative Action Accompanying the Trade Agreements Act of 1979* , H.R. Rep. No. 4537, 388, 411 reprinted in 1979 U.S.C.A.A.N. 665, 682. The U.S. Court of International Trade

(CIT)has upheld the Department's use of the knowledge test. Additionally, the CIT has affirmed that the Department is not required to show that the producer had actual knowledge of the destination of its exports. *Wonderful Chemical Indus. v. United States* , 259 F. Supp. 2d 1273, 1279 (CIT 2003) (citing *Allegheny Ludlum Corp. v. United States* , 215 F. Supp. 2d 1322, 1331-1332 (CIT 2000). In determining whether a party knew or should have known that its merchandise was destined for the United States, the Department's well-established practice is to consider such factors as:

(1)Whether that party prepared or signed any certificates, shipping documents, contracts or other papers stating that the destination of the merchandise was the United States;

(2)whether that party used any packaging or labeling which stated that the merchandise was destined for the United States;

(3)whether any unique features or specifications of the merchandise otherwise indicated that the destination was the United States; and

(4)whether that party admitted to the Department that it knew that its sales were destined for the United States. *See, e.g., Final Results of Antidumping Duty Administrative Review: Certain In-Shell Raw Pistachios From Iran* , 70 FR 7470 (February 14, 2005) and the accompanying Issues and Decision Memorandum at Comment 1; *Final Results of Antidumping Duty Administrative Review and Determination Not To Revoke the Order in Part: Dynamic Random Access Memory Semiconductors of One Megabit or Above from the Republic of Korea* , 64 FR 69694 (December 14, 1999); *Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Synthetic Indigo from the People's Republic of China* , 64 FR 69723 (December 14, 1999) (unchanged in final determination) (upheld by CIT in *Wonderful Chemical* , 259 F. Supp. 2d at 1280) ; and *Pasta from Italy* , 62 FR 66602. In this case, at the time of the sale, three of the four factors noted above are present. Specifically, Palini stated that

(1)its unaffiliated customer informed Palini of the location of the port of discharge prior to shipment;

(2)Palini's commercial invoice identifies the port of discharge;

(3)Palini provided all of the shipping information, including the port of discharge, to the unaffiliated customer's shipping agent at the customer's request; and

(4)Palini's shipping marks, which are completed prior to shipment and are stenciled onto each plate, include the port of discharge. Moreover, the documents Palini provided for two shipments, directly from Italy, during the POR, identify the port of discharge as one in the United States. Therefore, pursuant to the Department's consistent practice and based upon the explanations and documents provided in Palini's supplemental questionnaire response, we preliminarily find that Palini had knowledge of direct shipments to the United States of subject merchandise. Because Palini had knowledge that its sales to its Canadian customer were destined for the United States, Palini's sales are properly subject to this review. Use of Adverse Facts Available 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 facts otherwise available in reaching the applicable determination. Pursuant to sections 776(a)(2)(A) and

(C)of the Act, we preliminarily find that the use of facts available as the basis for the weighted-average dumping margin is appropriate for Palini, because Palini withheld information specifically requested by the Department and significantly impeded the proceeding. The Department specifically requested in the May 11, 2005, questionnaire that Palini report the quantity and value of subject merchandise it sold and entered into the United States during the POR. Palini failed to respond to the questionnaire. It was not until the Department issued a letter to Palini in which we asked Palini to indicate whether it had no shipments during the POR, that Palini informed the Department that sales to the its Canadian customer may have entered the United States, but that it had no knowledge of which portion of these sales did, in fact, enter the United States. We note that, at this time, Palini made no mentioned that it had shipped sales to this customer directly to the United States. As discussed above, the documentary evidence provided by Palini in response to the Department's supplemental questionnaire, demonstrates that Palini had knowledge that merchandise it shipped from Italy entered the United States during the POR. Even though these documents were in Palini's possession, and kept in the normal course of business, Palini failed to respond to the May 11, 2005, questionnaire and did not report its sales and entries of subject merchandise made during the POR. Palini only acknowledged its direct sales to the United States after the Department informed Palini that CBP documents contradicted its earlier assertions. Because it was unaware until late in the proceeding that there, in fact, were entries subject to the review, the Department was unable to issue additional questionnaires or calculate a dumping margin for Palini's entries within the statutory time for completing the review. The Department, therefore, finds that Palini has withheld information that the Department specifically requested. Additionally, by not responding to the initial questionnaire and waiting to reveal its knowledge of direct shipments, Palini significantly impeded the proceeding. Therefore, the Department has determined that it must base Palini's dumping margin on the facts otherwise available pursuant to sections 776(a)(2)(A) and

(C)of the Act. 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.” The Court of Appeals for the Federal Circuit (Federal Circuit) has held that the statutory mandate that a respondent act to the “best of its ability” requires the respondent to do the maximum it is able to do. *See, e.g., Nippon Steel Corp. v. United States* , 337 F.3d 1373, 1382 (Fed. Cir. 2003). In the instant case, Palini knew that its shipments were destined for the United States. However, Palini failed to report its entries of subject merchandise or even to respond to the May 11, 2005, questionnaire at all. Palini did not do the maximum it was able to do in response to the Department's requests for information, but rather failed to report shipments it knew were subject to the administrative review. Therefore, the Department finds that Palini failed to cooperate to the best of its ability in complying with the Department's requests for information. Because Palini did not cooperate to the best of its ability, the Department, in selecting from among the facts otherwise available will use an inference that is adverse to the interests of Palini. *See* section 776(b) of the Act. Section 776(b) of the Act authorizes the Department to use as adverse facts available

(AFA)information derived from

(1)the petition,

(2)a final determination in the investigation under this title,

(3)any previous review under section 751 or determination under section 753, or

(4)any other information on the record. *\* . It is the Department's practice normally to select the highest margin determined in any segment of the proceeding for any respondent. *See e.g., Notice of Final Results of Antidumping Duty Administrative Review and Final Partial Rescission: Certain Cut-to-Length Carbon Steel Plate from Romania* , 71 FR 7008 (February 10, 2006). The CIT and the Federal Circuit have consistently upheld Commerce's practice. *See Rhone Poulenc, Inc. V. United States* , 899 F.2d 1185, 1190 (Fed. Cir. 1990); *see also NSK Ltd. v. United States* , 346 F. Supp. 2d 1312, 1335 (CIT 2004) (upholding a 73.55% total adverse facts available rate, the highest available dumping margin from a different respondent in an LTFV investigation); *see also Kompass Food Trading Int'l v. United States* , 24 CIT 678, 689 (CIT 2000) (upholding a 51.16% total adverse facts available rate, the highest available dumping margin from a different, fully cooperative respondent); and *Shanghai Taoen Int'l Trading Co. v. United States* , 360 F. Supp. 2d 1339 (CIT 2005) (upholding a 223.01% total adverse facts available rate, the highest available dumping margin from a different respondent in a previous administrative review). The Department's practice when selecting an adverse rate from among the possible sources of information is to ensure that the margin is sufficiently adverse “as to effectuate the purpose of the facts available role to induce respondents to provide the Department with complete and accurate information in a timely manner.” *See Static Random Access Memory Semiconductors from Taiwan; Final Determination of Sales at Less than Fair Value* , 63 FR 8909, 8932 (February 23, 1998). The Department's practice also ensures “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, at 870

(1994)(SAA), *see also Notice of Final Determination of Sales at Less than Fair Value: Certain Frozen and Canned Warmwater Shrimp from Brazil* , 69 FR 76910 (December 23, 2004); *see also D&L Supply Co. v. United States* , 113 F. 3d 1220, 1223 (Fed. Cir. 1997). In choosing the appropriate balance between providing respondents with an incentive to respond accurately and imposing a rate that is reasonably related to the respondent's prior commercial activity, selecting the highest prior margin “reflects a common sense inference that the highest prior margin is the most probative evidence of current margins, because, if it were not so, the importer, knowing of the rule, would have produced current information showing the margin to be less.” *Rhone Poulenc* , 899 F. 2d at 1190. However, the Department's reliance on secondary information to determine an adverse facts available rate is subject to the corroboration requirement of section 776(c) of the Act. Section 776(c) of the Act provides that, where the Department selects from among the facts otherwise available and relies on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. Secondary information is described in the SAA 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* SAA at 870. The SAA states that “corroborate” means to determine that the information used has probative value. 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. *See Notice of Preliminary Determination of Sales at Less Than Fair Value: High and Ultra-High Voltage Ceramic Station Post Insulators from Japan* , 68 FR 35627 (June 16, 2003); see also Notice of Final Determination of Sales at Less Than Fair Value: Live Swine From Canada, 70 FR 12181 (March 11, 2005). In this case, because there have been no administrative reviews since the investigation, the only secondary information on the record is Palini's calculated rate from the investigation and information from the petition. The Department finds that it is inappropriate to use Palini's calculated rate from the investigation, 7.85 percent, 1 because we presume if Palini could have done better by cooperating in the proceeding it would have produced current information showing the margin to be less. *See Rhone Poulenc* , 899 F. 2d at 1190. Therefore, to ensure that Palini does not obtain a more favorable result by failing to cooperate than if it had cooperated fully, the Department will not use its margin from the investigation. *See SAA* , at 870. Therefore, the Department must rely on the only other information available, the margins from the petition. 1 § *See Notice of Amendment of Final Determinations of Sales at Less Than Fair Value and Antidumping Duty Orders: Certain Cut-To-Length Carbon-Quality Steel Plate Products From France, India, Indonesia, Italy, Japan and the Republic of Korea* , 65 FR 6585 (February 10, 2000) ( *CTL Plate Order* ). In the petition filed on February 16, 1999, the petitioners calculated estimated dumping margins for the identified respondents, including Palini, ranging from 30.75 to 93.30 percent. In this case, we preliminarily determine that the petition margin of 30.75 percent is sufficiently adverse to effectuate the purpose of the facts available role. Therefore, we determine that the 30.75 percent margin is appropriate as adverse facts available and are assigning it to Palini as AFA. Pursuant to 776(c) of the Act, we attempted to corroborate the margin using the only information reasonably available to us. While we did not have information available on the record to fully corroborate the margin, the fact that corroboration may not be practicable in a given case does not prevent the Department from applying an adverse inference as appropriate, and does not prevent the Department from using the secondary information. *See* 19 CFR 351.308(d); *see also Notice of Preliminary Affirmative Countervailing Duty Determination: Prestressed Concrete Steel Wire Strand from India* , 68 FR 40629 (July 8, 2003). The petitioners calculated the AUV, which served as an estimate of export price (EP), using import statistics obtained from the International Trade Commission for the three HTSUS categories accounting for the largest volume of subject imports from Italy during the first eleven months of 1998. *See Initiation of Antidumping Duty Investigations: Certain Cut-To-Length Carbon-Quality Steel Plate From the Czech Republic, France, India, Indonesia, Italy, Japan, the Republic of Korea, and the Former Yugoslav Republic of Macedonia* , 64 FR 12959 (March 16, 1999) ( *CTL Plate from Italy Initiation Notice* ). The petitioners calculated the cost of manufacturing

(COM)using their own production experience, adjusting for known differences between costs incurred to produce CTL plate in the United States and in Italy. The petitioners calculated selling, general, and administrative expenses; financial expenses; and profit based upon the 1997 financial statements of an Italian steel producer, consistent with section 773(e)(2) of the Act. *Id* . Therefore, given the record evidence from the petition and from the instant review, we preliminarily find that the 30.75 percent rate is the most appropriate to use as AFA and are assigning it to Palini. Partial Preliminary Rescission of Administrative Review The Department's practice, supported by substantial precedent, requires that there be entries during the POR upon which to assess antidumping duties, to conduct an administrative review. Pursuant to 19 CFR 351.213(d)(3), the Department will rescind an administrative review in whole or only with respect to a particular exporter or producer if we conclude that during the period of review there were “no entries, exports, or sales of the subject merchandise.” Ilva, Metalcam, and Riva Fire reported that they had no entries of subject merchandise during the POR. The Department confirmed, through CBP data, that there were no entries of subject merchandise from these companies during the POR. Therefore, in accordance with 19 CFR 351.213(d)(3), we are preliminarily rescinding the administrative review with respect to Ilva, Metalcam, and Riva Fire. Trametal has no entries during the POR against which to collect duties. It is the Department's practice not to conduct an administrative review when there are no entries to be reviewed. *See Notice of Final Results of Antidumping Duty Administrative Review: Portable Electric Typewriters from Japan* , 56 FR 14072, 14073 (April 5, 1991); and *Notice of Proposed Rulemaking and Final Comments: Antidumping Duties; Countervailing Duties* , 61 FR 7308, 7318 (February 27, 1996). Liquidation of entries is final on all parties unless protested within the prescribed period. See 19 U.S.C. § 1514(a)(5). Because the liquidation of Trametal's entry is final, the Department cannot assess antidumping duties against that entry pursuant to the final results of this administrative review. Therefore, the Department will preliminarily rescind the review with respect to Trametal, pursuant to 19 CFR 351.213(d)(3). Preliminary Results of Review As a result of our review, we preliminarily find that the dumping margin for Palini for the period February 1, 2004 through January 31, 2005, is 30.75 percent. For Ilva, Metalcam, Riva Fire, and Trametal, we preliminarily rescind the administrative review. Public Comment Interested parties may submit written comments (case briefs) within 30 days of publication of the preliminary results and rebuttal comments (rebuttal briefs), which must be limited to issues raised in the case briefs, within five days after the time limit for filing case briefs. *See* 19 CFR 351.309(c)(1)(ii) and 19 CFR 351.309(d). Parties who submit arguments are requested to submit with the argument:

(1)A statement of the issue;

(2)a brief summary of the argument; and

(3)a table of authorities. Further, the Department requests that parties submitting written comments provide the Department with a diskette containing the public version of those comments. Issues raised in hearings will be limited to those raised in the case and rebuttal briefs. Any interested party may request a hearing within 30 days of the date of publication of this notice in the **Federal Register** . *See* 19 CFR 351.310(c). Any hearing, if requested, will be held approximately 37 days after the publication of this notice, or the first business day thereafter. 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. Because we are applying AFA to all exports of subject merchandise produced or exported by Palini, we will instruct CBP to liquidate entries according to the AFA *ad valorem* rate for all importers. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of this review. Cash Deposit Instructions The following deposit requirements will be effective upon completion of the final results of this administrative review for all shipments of CTL Plate from Italy entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided by section 751(a)(2)(C) of the Act:

(1)The cash-deposit rate for Palini will be the rate established in the final results of this review;

(2)for previously reviewed or investigated companies not covered by this review, 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 by this review, a prior review, or the original 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 merchandise;

(4)if neither the exporter nor the manufacturer is a firm covered in this or any previous review conducted by the Department, the cash-deposit rate will be 7.85 percent, the all-others rate established in the LTFV. *See Amended Final and Orders* . These cash-deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review. 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. This administrative review and notice are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: February 28, 2006. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E6-3123 Filed 3-3-06; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-570-851] Certain Preserved Mushrooms from the People's Republic of China: Partial Rescission and Preliminary Results of the Sixth Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (“the Department”) is currently conducting the sixth administrative review of the antidumping duty order on certain preserved mushrooms from the People's Republic of China (“PRC”) covering the period February 1, 2004, through January 31, 2005. This review covers imports of subject merchandise from four manufacturers/exporters: Raoping Yucun Canned Foods Factory (“Raoping Yucun”), Primera Harvest (Xiangfan) Incorporated (“PHX”), Gerber Food (Yunnan) Co., Ltd. (“Gerber”) and Guangxi Yulin Oriental Food Co., Ltd. (“Guangxi Yulin”) . We are preliminarily rescinding the review with respect to Green Fresh Foods (Zhangzhou) Co., Ltd. (“Green Fresh”). We preliminarily find that Yucun sold subject merchandise at less than normal value (“NV”) during the period of review (“POR”). In addition, we find that adverse facts available (“AFA”) are appropriate for PHX, Gerber and Guangxi Yulin. If these preliminary results are adopted in our final results of review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries in accordance with these results. We invite interested parties to comment on these preliminary review results and will issue the final review results no later than 120 days from the date of publication of this notice. EFFECTIVE DATE: March 6, 2006. FOR FURTHER INFORMATION CONTACT: Alex Villanueva or Paul Walker, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone:

(202)482-3208 or 202 482-0413, respectively. SUPPLEMENTARY INFORMATION: Case History General On February 19, 1999, the Department published in the **Federal Register** the antidumping duty order on certain preserved mushrooms from the PRC. *See Notice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms From the People's Republic of China* , 64 FR 8308 (February 19, 1999) (“ *Mushrooms Order* ”). In response to requests from the Coalition for Fair Preserved Mushroom Trade (the “Petitioner”), PHX, Raoping Yucun, Gerber and Green Fresh, and in accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the “Act”), and section 351.214(c) of the Department's regulations, on March 23, 2005, the Department initiated the sixth administrative review of certain preserved mushrooms from the PRC on 30 companies. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 70 FR 14643 (March 23, 2005). On June 29, 2005, the Petitioner filed a timely letter withdrawing its request for review for 25 of the 30 companies. On July 21, 2005, the Department rescinded the review with respect to these 25 companies. 1 *See Certain Preserved Mushrooms from the People's Republic of China: Notice of Partial Rescission of Antidumping Duty Administrative Review* , 70 FR 42038 (July 21, 2005). 1 The list of the 30 companies initiated for an administrative review is available at 70 FR 14647 (March 23, 2005). On March 30, 2005, the Department issued antidumping duty questionnaires to Raoping Yucun, PHX, Gerber, Guangxi Yulin and Green Fresh. On April 13, 2005, the Department provided all interested parties the opportunity to submit information pertinent to selecting a surrogate country and valuing factors of production for this administrative review. On October 6, 2005, the Department extended the time limit for the preliminary results of this administrative review from October 31, 2005 to February 28, 2006. *See Notice of Extension of the Preliminary Results of the Administrative Antidumping Duty Review: Certain Preserved Mushrooms from the People's Republic of China* , 70 FR 58381 (October 6, 2005). Gerber On March 25, 2005, Gerber stated that it had no shipments of subject merchandise during the POR. However, the Department obtained information from CBP that indicated Gerber may have had shipments during the POR and on October 5, 2005, the Department sent Gerber a letter asking for clarification of its no shipment response given the CBP data obtained by the Department. On October 30, 2005, Gerber notified the Department that it would no longer participate in this review. Green Fresh On May 6, 2005, Green Fresh requested clarification from the Department regarding its one shipment of subject merchandise to the United Stated during the POR. Specifically, Green Fresh requested whether one shipment which did not enter during the POR was subject to this administrative review. On May 18, 2005, the Department notified Green Fresh that, because Green Fresh's single shipment of subject merchandise entered the United States after the POR and that the sale of this single shipment was made to the first unaffiliated U.S. customer after the POR, this shipment would be properly reviewed in the next administrative review in accordance with section 351.213(e)(1) of the Department's regulations. *See* the Department's May 18, 2005, letter to Green Fresh. Guangxi Yulin On June 30, 2005, Guangxi Yulin notified the Department that it would no longer participate in this review. PHX On May 27, 2005, PHX submitted its response to the Department's antidumping duty questionnaire. 2 On June 3, 2005, the Department notified PHX that it had omitted electronic versions of the sales and factors of production (“FOP”) databases. The Department requested that PHX file the omitted databases by June 8, 2005. *See Memorandum to the File from Amber Musser, Case Analyst, 6th Administrative Review of the Antidumping Duty Order on Certain Preserved Mushrooms from the People's Republic of China: Regarding Telephone Call with Ms. Lizbeth Levinson of Garvey Schubert Barer* , dated June 6, 2005. On August 5, 2005, PHX submitted its response to the Department's first supplemental sections A, C & D questionnaire. Additionally, PHX submitted several exhibits on August 10, 2005, which PHX omitted from its August 5, 2005, response. On November 14, 2005, PHX submitted its response to the Department's second supplemental section A questionnaire. On November 21, 2005, PHX submitted its response to the Department's second supplemental sections C & D questionnaire. Additionally, on November 22, 2005, PHX submitted exhibits which it had omitted from its November 21, 2005, response. On November 29, 2005, PHX filed a revised FOP database corresponding to the questionnaire response dated November 21, 2005. 2 Sections A (Organization, Accounting Practices, Markets and Merchandise), C (Sales to the United States), D (Factors of Production), E (Cost of Further Manufacturing Performed in the United States) and Sales and Factors of Production Reconciliations. On November 30, 2005, the Department issued a third supplemental sections A, C & D questionnaire regarding deficiencies in PHX's previous supplemental responses. PHX did not submit a response to this supplemental questionnaire. On December 5, 2005, the Department issued a letter to PHX discussing various continued deficiencies in PHX's responses, providing an opportunity for PHX to correct these deficiencies by December 9, 2005. On December 9, 2005, PHX requested an extension to correct its deficiencies, which the Department granted for a new deadline of December 12, 2005. On December 12, 2005, PHX advised the Department by telephone that it would not submit corrections or any other response to the letter dated December 5, 2005. Furthermore, PHX stated that it was withdrawing from the instant proceeding. *See Memorandum to the File from Irene Gorelik, Case Analyst, 6th Administrative Review of the Antidumping Duty Order on Certain Preserved Mushrooms from the People's Republic of China: Regarding Telephone Call with Counsel to Primera Harvest (Xiangfan) Inc. (“PHX”)* , dated December 12, 2005. On December 13, 2005, PHX filed a letter withdrawing its request for an administrative review. Raoping Yucun On May 18, 2005, Raoping Yucun submitted its response to the Department's antidumping duty questionnaire. On August 16, 2005, Raoping Yucun submitted its response to the Department's supplemental sections A, C & D questionnaire. On October 28, 2005, Raoping Yucun submitted its response to the Department's supplemental sections A, C & D questionnaire. On November 17, 2005, Raoping Yucun submitted its response to the Department's request for FOPs and market economy purchases. On January 13, 2006, Raoping Yucun submitted its response to the Department's supplemental Section D questionnaire. Period of Review The POR covers February 1, 2004, through January 31, 2005. Scope of the Order The products covered by this order are certain preserved mushrooms, whether imported whole, sliced, diced, or as stems and pieces. The certain preserved mushrooms covered under this order are the species *Agaricus bisporus* and *Agaricus bitorquis* . “Certain Preserved Mushrooms” refer to mushrooms that have been prepared or preserved by cleaning, blanching, and sometimes slicing or cutting. These mushrooms are then packed and heated in containers including, but not limited to, cans or glass jars in a suitable liquid medium, including, but not limited to, water, brine, butter or butter sauce. Certain preserved mushrooms may be imported whole, sliced, diced, or as stems and pieces. Included within the scope of this order are “brined” mushrooms, which are presalted and packed in a heavy salt solution to provisionally preserve them for further processing. Excluded from the scope of this order are the following:

(1)All other species of mushroom, including straw mushrooms;

(2)all fresh and chilled mushrooms, including “refrigerated” or “quick blanched mushrooms";

(3)dried mushrooms;

(4)frozen mushrooms; and

(5)“marinated,” “acidified,” or “pickled” mushrooms, which are prepared or preserved by means of vinegar or acetic acid, but may contain oil or other additives. 3 3 On June 19, 2000, the Department affirmed that “marinated,” “acidified,” or “pickled” mushrooms containing less than 0.5 percent acetic acid are within the scope of the antidumping duty order. *See* “Recommendation Memorandum-Final Ruling of Request by Tak Fat, *et al* . for Exclusion of Certain Marinated, Acidified Mushrooms from the Scope of the Antidumping Duty Order on Certain Preserved Mushrooms from the People's Republic of China,” dated June 19, 2000. On February 9, 2005, this decision was upheld by the United States Court of Appeals for the Federal Circuit. *See Tak Fat v. United States* , 39C F.3d 1378 (Fed. Cir. 2005). The merchandise subject to this order is classifiable under subheadings: 2003.10.0127, 2003.10.0131, 2003.10.0137, 2003.10.0143, 2003.10.0147, 2003.10.0153 and 0711.51.0000 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of this order is dispositive. Partial Rescission of Administrative Review In accordance with 19 CFR 351.213(d)(3), we are preliminarily rescinding this review with respect to Green Fresh, which reported that it did not have any entries of merchandise subject to the antidumping duty order on certain preserved mushrooms during the POR. No party has placed evidence on the record to indicate that Green Fresh had entries of subject merchandise during the POR. In addition, we examined CBP shipment data and are satisfied that the record does not indicate that there were U.S. entries of subject merchandise from Green Fresh during the POR. *See* the Department's May 18, 2005, letter to Green Fresh. PHX's Request for Withdrawal of Administrative Review As noted above, PHX submitted a letter to the Department withdrawing its request for an administrative review on December 13, 2005. Pursuant to 19 CFR 351.213(d)(1), “the Secretary will rescind an administrative review under this section, in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. The Secretary may extend this time limit if the Secretary decides that it is reasonable to do so.” The 90-day deadline for withdrawing from this administrative review passed on June 21, 2005. However, the Department extended the deadline to withdraw an administrative review request, per the Petitioner's request, to July 5, 2005. Therefore, PHX's request to withdraw from the administrative review was submitted 161 days after the deadline established by the Department. During the course of these 161 days, the Department reviewed PHX's submissions and prepared and sent questionnaires to PHX. As a result of PHX's deficient and/or incomplete questionnaire responses, the Department repeatedly attempted to gather necessary information from PHX. On November 30, 2005, the Department sent PHX a supplemental questionnaire requesting additional information. To date, the Department has not received PHX's response to this questionnaire. On December 5, 2005 the Department sent PHX a letter enumerating outstanding deficiencies in PHX's responses and requesting that these be remedied. Instead, PHX submitted its late request for withdrawal from the administrative review. In this case, because the Department expended considerable effort and resources in our analysis of PHX, prior to its late withdrawal during an advanced stage of the review, we have not rescinded the review of the order on certain preserved mushrooms from the PRC with respect to PHX. This is consistent with past Department practice. *See Antifriction Bearings and Parts Thereof from France, Germany, Italy, Japan, Singapore, and the United Kingdom: Preliminary Results of Antidumping Duty Administrative Reviews, Partial Rescission of Administrative Reviews, Notice of Intent to Rescind Administrative Reviews, And Notice of Intent to Revoke Order in Part* , 69 FR 5949, (February 9, 2004), (“Although we have accepted untimely withdrawals of requests for review elsewhere, the circumstances surrounding the review of INA are different from other situations...we had expended effort and resources in our analysis of INA prior to the untimely withdrawal such that we were quite advanced in the review”). Adverse Facts Available Section 776(a)(2) of the Act provides that, if an interested party:

(A)Withholds information that has been requested by the Department;

(B)fails to provide such information in a timely manner or in the form or manner requested, subject to sections 782(c)(1) and

(e)of the Act;

(C)significantly impedes a proceeding under the antidumping statute; or

(D)provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination. Furthermore, section 776(b) of the Act states that if the Department “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,” the Department, “in reaching the applicable determination under this title, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.” *See also* Statement of Administrative Action (“SAA”) accompanying the Uruguay Round Agreements Act (“URAA”), H.R. Rep. No. 103-316 at 870 (1994). PHX

(A)Facts Available As noted above, section 776(a)(2) of the Act provides that, if an interested party withholds information requested by the Department, fails to provide such information by the deadline or in the form or manner requested, significantly impedes a proceeding, or provides information which cannot be verified, the Department shall use facts otherwise available in reaching the appropriate determination. As stated above, PHX has withheld information requested by the Department by not submitting a response to the Department's questionnaire dated November 30, 2005. The information requested in the November 30, 2005, questionnaire is critical and necessary to calculate PHX's margin. Additionally, PHX has also failed to provide information in the manner requested. For details regarding PHX's outstanding questionnaires, please see *Memo to the File, from Irene Gorelik, Case Analyst, through Alex Villanueva, Program Manager, 6th Administrative Review of Certain Preserved Mushrooms from the People's Republic of China: Regarding Outstanding Responses from Primera Harvest (Xiangfan) Inc. (“PHX”)* , dated February 28, 2006. Finally, PHX's actions have impeded the administrative review procedures such that a verification of PHX's sales and cost information could not be performed. Therefore, the Department has no choice but to rely on the facts otherwise available in order to determine a margin for PHX, pursuant to section 776(a)(2) of the Act. *See Stainless Steel Sheet and Strip in Coils From Japan: Preliminary Results of Antidumping Duty Administrative Review* , 70 FR 18369 (April 11, 2005), (“because this company refused to participate in this administrative review, we find that,...the use of total facts available is appropriate”) and *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 71072 (December 22, 2003), (“Since UC and DNP withheld information requested by the Department, the Department has no choice but to rely on the facts otherwise available in order to determine a margin for these parties”).

(B)Adverse Inference In applying facts otherwise available, section 776(b) of the Act states that if 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 or the International Trade Commission, the administering authority or the Commission, in reaching the applicable determination under section 776(b) of the Act, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available. In the instant proceeding, we find it appropriate to use an inference that is adverse to the interests of PHX in selecting from among the facts otherwise available. By withdrawing from this administrative review 161 days after the Department's established deadline rather than submitting a response to the Department's November 30, 2005, supplemental questionnaire or the Department's December 5, 2005, letter, PHX has failed to cooperate to the best of its ability in this proceeding. Accordingly, we find that an adverse inference is warranted. By applying AFA, we ensure that the companies that fail to cooperate will not obtain a more favorable result than those companies that complied fully with the Department's requests in this review. Because of PHX's withdrawal from the instant proceeding, the Department was unable to verify PHX's separate rates information due to its withdrawal from the administrative review. Thus, the Department could not determine whether PHX is eligible for a separate rate. Accordingly, we are not granting PHX a separate rate and are applying the PRC-wide rate to PHX. *See* the “Corroboration” section below for a discussion of the probative value of the PRC-wide 198.63 percent rate. Gerber and Guangxi Yulin

(A)Facts Available As stated above in the “Case History” section, Gerber and Guangxi Yulin did not respond to the Department's antidumping questionnaire. Rather, as noted above, Gerber and Guangxi Yulin informed the Department that they would no longer participate in this proceeding, and failed to respond to the Department's request for information. Because of their failure to participate in the instant review, Gerber and Guangxi Yulin withheld requested information from the Department and impeded this proceeding. Consistent with section 776(a) of the Act, the Department has determined to apply total facts available to Gerber and Guangxi Yulin in the preliminary results.

(B)Adverse Inference The Department further finds that by failing to participate in this administrative review, Gerber and Guangxi Yulin have failed to cooperate to the best of their ability in this proceeding. Therefore, pursuant to section 776(b) of the Act, we find it appropriate to use an inference that is adverse to the interests of Gerber and Guangxi Yulin in selecting from among the facts otherwise available. By doing so, we ensure that the companies that fail to cooperate will not obtain a more favorable result than those companies that complied fully with the Department's requests in this review. Because Gerber and Guangxi Yulin failed to respond to our request for information, the Department could not determine whether these companies are eligible for a separate rate. Accordingly, we are applying the PRC-wide rate to Gerber and Guangxi Yulin. *See* the “Corroboration” section below for a discussion of the probative value of the PRC-wide 198.63 percent rate. Corroboration of AFA rate for PHX, Gerber and Guanxi Yulin Section 776(c) of the Act requires that the Department corroborate, to the extent practicable, a figure which it applies as facts available. To be considered corroborated, information must be found to be both reliable and relevant. We are applying as AFA the PRC-wide rate, which is the highest rate from any segment of this administrative proceeding, and is a rate from the less-than-fair-value (“LTFV”) investigation. *See Mushrooms Order* at 8310. The information upon which the AFA rate is based in the current review (the PRC-wide rate of 198.63 percent) being assigned to PHX, Gerber and Guangxi Yulin was the highest rate from the petition in the LTFV investigation. This AFA rate has not changed since the original LTFV determination. For purposes of corroboration, the Department will consider whether that margin is both reliable and relevant. The AFA rate we are applying for the current review was corroborated in reviews subsequent to the LTFV investigation to the extent that the Department referred to the history of corroboration, as well as in the most recently completed review. *See Certain Preserved Mushrooms From the People's Republic of China: Final Results and Final Rescission, in Part, of Antidumping Duty Administrative Review* , 70 FR 54361 (September 14, 2005) (“ *5th Review Results* ”) (to corroborate the AFA margin of 198.63 percent, in the 5th review the Department compared the AFA margin to calculated margins for certain respondents and found that 198.63 percent was within the margins for individual sales of identical and/or similar products). Furthermore, no information has been presented in the current review that calls into question the reliability of this information. With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in *Fresh Cut Flowers from Mexico: Final Results of Antidumping Administrative Review* , 61 FR 6812 (February 22, 1996), the Department disregarded the highest margin in that case as adverse best information available (the predecessor to “facts available”) because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin. Similarly, the Department does not apply a margin that has been discredited. *See D&L Supply Co. v. United States* , 113 F.3d 1220, 1221 (Fed. Cir. 1997) (the Department will not use a margin that has been judicially invalidated). The information used in calculating this margin was based on sales and production data submitted by the respondents in the LTFV investigation, together with the most appropriate surrogate value information available to the Department chosen from submissions by the parties in the LTFV investigation, as well as gathered by the Department itself. Furthermore, the calculation of this margin was subject to comment from interested parties in the proceeding. Moreover, as there is no information on the record of this review that demonstrates that this rate is not appropriately used as AFA, we determine that this rate has relevance. Based on our analysis as described above, we find that the margin of 198.63 percent is reliable and has relevance. As the rate is both reliable and relevant, we determine that it has probative value. Accordingly, we determine that the calculated rate of 198.63 percent, which is the current PRC-wide rate, is in accordance with the requirement of section 776(c) of the Act that secondary information be corroborated (that it have probative value). Consequently, we have assigned this AFA rate to exports of the subject merchandise from all companies subject to the PRC-wide rate, including PHX, Gerber and Guangxi Yulin. Separate Rates The Department has treated the PRC as a non-market economy (“NME”) country in all previous antidumping cases. *See Brake Rotors From the People's Republic of China: Final Results of the Twelfth New Shipper Review* , 71 FR 4112 (January 25, 2006). In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is a NME country shall remain in effect until revoked by the administering authority. We have no evidence suggesting that this determination should be changed. Therefore, we treated the PRC as a NME country for purposes of this review and calculated NV by valuing the FOPs in a surrogate country. It is the Department's policy to assign all exporters of the merchandise subject to review that are located in NME countries a single antidumping duty rate unless an exporter can demonstrate an absence of governmental control, both in law ( *de jure* ) and in fact ( *de facto* ), with respect to its export activities. To establish whether an exporter is sufficiently independent of governmental control to be entitled to a separate rate, the Department analyzes the exporter using the criteria established in the *Final Determination of Sales at Less Than Fair Value: Sparklers from the People's Republic of China* , 56 FR 20588 (May 6, 1991) (“ *Sparklers* ”), as amplified in the *Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China* , 59 FR 22585 (May 2, 1994) (“ *Silicon Carbide* ”). Under the separate rates criteria established in these cases, the Department assigns separate rates to NME exporters only if they can demonstrate the absence of both *de jure* and *de facto* governmental control over their export activities. Absence of De Jure Control Evidence supporting, though not requiring, a finding of absence of de jure government control over export activities includes:

(1)An absence of restrictive stipulations associated with the individual exporter's business and export licenses;

(2)any legislative enactments decentralizing control of companies; and

(3)any other formal measures by the government decentralizing control of companies. *See Sparklers* at 20589. In the instant review, Yucun submitted complete responses to the separate rates section of the Department's questionnaire. The evidence submitted in the instant review by Yucun includes government laws and regulations on corporate ownership, business licenses, and narrative information regarding the companies' operations and selection of management. The evidence provided by Yucun supports a finding of an absence of *de jure* governmental control over its export activities because:

(1)there are no controls on exports of subject merchandise, such as quotas applied to, or licenses required for, exports of the subject merchandise to the United States; and

(2)the subject merchandise does not appear on any government list regarding export provisions or export licensing. Absence of De Facto Control The absence of *de facto* governmental control over exports is based on whether the respondent:

(1)Sets its own export prices independent of the government and other exporters;

(2)retains the proceeds from its export sales and makes independent decisions regarding the disposition of profits or financing of losses;

(3)has the authority to negotiate and sign contracts and other agreements; and

(4)has autonomy from the government regarding the selection of management. *See Silicon Carbide* at 22587; *Sparklers* at 20589; *see also Notice of Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from the People's Republic of China* , 60 FR 22544, 22545 (May 8, 1995). In its questionnaire responses, Yucun submitted evidence indicating an absence of *de facto* governmental control over its export activities. Specifically, this evidence indicates that:

(1)Yucun sets its own export prices independent of the government and without the approval of a government authority;

(2)Yucun retains the proceeds from its sales and makes independent decisions regarding the disposition of profits or financing of losses;

(3)Yucun has a director with the authority to negotiate and bind the company in an agreement;

(4)the director is the owner of Yucun and appoints the deputy managers and the manager of each department; and

(5)there is no restriction on Yucun's use of export revenues. Therefore, the Department has preliminarily found that Yucun has established prima facie that it qualifies for a separate rate under the criteria established by *Silicon Carbide* and *Sparklers* . Surrogate Country When the Department is investigating imports from a NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer's FOPs, valued in a surrogate market-economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of factors of production in one or more market-economy countries that are at a level of economic development comparable to that of the NME country and are significant producers of comparable merchandise. The sources of the surrogate values we have used in this investigation are discussed under the “Normal Value” section below. The Department determined that India, Indonesia, Sri Lanka, the Philippines, and Egypt are countries comparable to the PRC in terms of economic development. *See Memorandum from Ron Lorentzen, Office of Policy, Acting Director, to Brian C. Smith, Program Manager: Antidumping Administrative Review of Certain Preserved Mushrooms from the People's Republic of China: Regarding Request for a List of Surrogate Countries* , dated April 7, 2005. We selected an appropriate surrogate country based on the availability and reliability of data from the countries. *See Department Policy Bulletin No. 04.1: Non-Market Economy Surrogate Country Selection Process (“Policy Bulletin”)* , dated March 1, 2004. In this case, we have found that India is a significant producer of comparable merchandise and is at a similar level of economic development pursuant to section 773(c)(4) of the Act. *See Memorandum from Irene Gorelik, Case Analyst, through Alex Villanueva, Program Manager, Office 9 and James C. Doyle, Office Director, Office 9, to The File, 6th Antidumping Duty Administrative Review of Certain Preserved Mushrooms from the People's Republic of China: Regarding Selection of a Surrogate Country* , dated February 28, 2006 (“ *Surrogate Country Memo* ”). Normal Value In accordance with section 773(c) of the Act, we calculated NV based on FOPs reported by Yucun for the POR. To calculate NV, we valued the reported FOP by multiplying the per-unit factor quantities by publicly available Indian surrogate values. In selecting surrogate values, we considered the quality, specificity, contemporaneity to the POR, as well as excluded taxes of the available values. As appropriate, we adjusted the value of material inputs to account for delivery costs. Where appropriate, we increased Indian surrogate values by surrogate inland freight costs. We calculated these inland freight costs using the shorter of the reported distances from the PRC port to the PRC factory, or from the domestic supplier to the factory. This adjustment is in accordance with the United States Court of Appeals for the Federal Circuit's (“CAFC”) decision in *Sigma Corp. v. United States* , 117 F. 3d 1401, 1407-1408 (Fed.Cir. 1997). For those values not contemporaneous with the POR, we adjusted for inflation or deflation using data published in *International Financial Statistics* . We excluded imports from Korea, Thailand, and Indonesia from the surrogate country import data used in our calculations due to generally available export subsidies. *See China Nat'l Mach. Import & Export Corp. v. United States* , CIT 01-1114, 293 F. Supp. 2d 1334 (CIT 2003), aff'd 104 Fed. Appx. 183 (Fed. Cir. 2004) and *Certain Cut-to-Length Carbon Steel Plate from Romania: Notice of Final Results and Final Partial Rescission of Antidumping Duty Administrative Review* , 70 FR 12651 (March 15, 2005) and accompanying Issues and Decision Memorandum at Comment 4. Furthermore, we disregarded prices from NME countries. We converted the surrogate values to U.S. dollars as appropriate, using the official exchange rate recorded on the dates of sale of subject merchandise in this case, obtained from Import Administration's Web site at: http://www.ia.ita.doc.gov/exchange/index.html. For further detail, *see Surrogate Values Memo* . U.S. Price In accordance with section 772(a) of the Act, the Department calculated an export price (“EP”) for Yucun's sale to the United States because the first sale to an unaffiliated party was made before the date of importation and the use of constructed EP (“CEP”) was not otherwise warranted. We calculated EP based on the price to an unaffiliated purchaser in the United States. In accordance with section 772(c) of the Act, as appropriate, we deducted from the starting price to the unaffiliated purchaser foreign inland freight and brokerage & handling. Each of these services was either provided by a NME vendor or paid for in NME currency. Thus, we based the deduction for these movement charges on surrogate values. *See Memorandum from Paul Walker, Case Analyst, through Alex Villanueva, Program Manager, Office 9 and James C. Doyle, Office Director, Office 9, to The File,6th Antidumping Duty Administrative Review of Certain Preserved Mushrooms from the People's Republic of China: Regarding Surrogate Values for the Preliminary Results* , dated February 28, 2006, (“ *Surrogate Values Memo* ”) for details regarding the surrogate values for other movement expenses. Preliminary Results of Review We preliminarily determine that the following margin exists during the period February 1, 2004, through January 31, 2005: Certain Preserved Mushrooms from the PRC Manufacturer/Exporter Weighted-Average Margin (Percent) Raoping Yucun Canned Foods Factory 123.42 PRC-wide Entity (including Primera Harvest (Xiangfan) Inc., Gerber Food (Yunnan) Co., Ltd. and Guangxi Yulin Oriental Food Co., Ltd.) 198.63 Public Comment The Department will disclose to parties to this proceeding the calculation performed in reaching the preliminary results within ten days of the date of announcement of the preliminary results. An interested party may request a hearing within 30 days of publication of the preliminary results. *See* 19 CFR 351.310(c). Interested parties may submit written comments (case briefs) within 30 days of publication of the preliminary results and rebuttal comments (rebuttal briefs), which must be limited to issues raised in the case briefs, within five days after the time limit for filing case briefs. *See* 19 CFR 351.309(c)(1)(ii) and 19 CFR 351.309(d). Parties who submit arguments are requested to submit with the argument:

(1)a statement of the issue;

(2)a brief summary of the argument; and

(3)a table of authorities. Further, the Department requests that parties submitting written comments provide the Department with a diskette containing the public version of those comments. Unless the deadline is extended pursuant to section 751(a)(3)(A) of the Act, the Department will issue the final results of this administrative review, including the results of our analysis of the issues raised by the parties in their comments, within 120 days of publication of the preliminary results. The assessment of antidumping duties on entries of merchandise covered by this review and future deposits of estimated duties shall be based on the final results of this review. Assessment Rates Upon issuing the final results of the review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP within 15 days of publication of the final results of this review. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific ad valorem duty assessment rates based on the ratio of the total amount of the dumping margins calculated for the examined sales to the total entered value of those same sales. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above *de minimis* . Cash Deposit Requirements The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act:

(1)The cash deposit rate for each of the reviewed companies that received a separate rate in this review will be the rate listed in the final results of review (except that if the rate for a particular company is *de minimis* , less than 0.5 percent, no cash deposit will be required for that company);

(2)for previously investigated or reviewed companies not listed above that have separate rates, 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 original 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 merchandise; and

(4)the cash deposit rate for all other manufacturers or exporters (including PHX, Gerber and Guangxi Yulin) will continue to be the “PRC-wide” rate of 198.63 percent, which was established in the LTFV investigation. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review. Notification to Importers This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this 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. We are issuing and publishing this determination in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: February 28, 2006. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E6-3125 Filed 3-3-06; 8:45 am] Billing Code: 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration Antidumping Proceedings: Calculation of the Weighted Average Dumping Margin During an Antidumping Duty Investigation AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (“the Department”) is requesting comments regarding the calculation of the weighted average dumping margin in an antidumping duty investigation. Currently, the Department usually makes comparisons between average export prices and average normal values and does not offset any dumping that is found with the results of comparisons for which the average export price exceeds the average normal value. A recent WTO dispute settlement report has found that the United States application of this methodology was inconsistent with our WTO obligations. In response to this report, the Department will abandon the use of average-to-average comparisons without such offsets. The Department seeks comment on the alternative approach(s) that may be appropriate in future investigations. EFFECTIVE DATE: March 6, 2006. DATES: To be assured of consideration, written comments must be received no later than 30 days after the date of publication in the **Federal Register** . Rebuttal comments must be received no later than 45 days after the publication date. ADDRESS: Submit comments to David Spooner, Assistant Secretary for Import Administration, U.S. Department of Commerce, Central Records Unit, Room 1870, Pennsylvania Avenue and 14th Street, NW., Washington, DC 20230; Attention: Weighted Average Dumping Margin. FOR FURTHER INFORMATION CONTACT: Michael Rill at 202) 482-3058, Mark Barnett at

(202)482-2866, or William Kovatch at

(202)482-5052. SUPPLEMENTARY INFORMATION: Background Pursuant to section 777A(d)(1)(A) of the Tariff Act of 1930, in an investigation, the Department may determine whether the subject merchandise is being sold at less than fair value either by comparing weighted average normal values to weighted average export prices of comparable merchandise (the average-to-average comparison methodology), or by comparing normal values of individual transactions to the export prices 1 of individual transactions for comparable merchandise (the transaction-to-transaction comparison methodology). The Department's regulations state that the Department will normally use the average-to-average comparison methodology in an investigation. 19 C.F.R. 351.414(c)(1). 1 The Department may also use constructed export prices, if appropriate. Because the use of export prices or constructed export prices is not relevant to the substance of this notice, the Department refers only to export prices hereafter. In applying the average-to-average methodology during an investigation, the Department usually divides the export transactions into groups by model and level of trade (“averaging groups”), and compares an average of the export price of transactions within one group to an average normal value for the same or similar model of the foreign like product at the same or most similar level of trade. When aggregating the results of the comparisons of averaging groups in order to determine the weighted average dumping margin, the Department has not allowed the results of averaging groups for which export price exceeds normal value to offset the results of averaging groups for which export price is less than normal value. 2 2 Section 771(35)(A) of the Act defines the dumping margin as the amount by which normal value “exceeds” export or constructed export price. Section 771(35)(B) defines the weighted average dumping margin as the percentage determined by dividing the aggregate dumping margins determined for a specific exporter or producer by the aggregate export or constructed export price of that exporter or producer. The European Communities (“EC”) challenged the denial of offsets, both “as such,” and “as applied” in certain administrative determinations, as being inconsistent with the World Trade Organization (“WTO”) Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (“Antidumping Agreement”) before a dispute settlement panel. The panel circulated its report on October 31, 2005, finding, with respect to the specific antidumping duty investigations subject to the EC's challenge, that the Department's denial of offsets when using the average-to-average comparison methodology in an investigation is inconsistent with Article 2.4.2 of the Antidumping Agreement. 3 The United States has not appealed this aspect of the panel's report. 3 Panel Report, *United States - Laws, Regulations and Methodology for Calculating Dumping Margins (“US - Zeroing”)* , WT/DS294/R, para. 7.32, circulated October 31, 2005 *(“Zeroing”)* . Proposal for Calculating the Weighted Average Dumping Margin in an Antidumping Investigation and Request for Comments Pursuant to section 123(g)(1) of the Uruguay Round Agreements Act (“the URAA”), “[i]n any case in which a dispute settlement panel or the Appellate Body finds in its report that a regulation or practice of a department or agency of the United States is inconsistent with any of the Uruguay Round Agreements,” certain requirements must be met before “that regulation or practice” may be “amended, rescinded, or otherwise modified . . . .” Section 123(g)(1)(C) of the URAA requires that the Department provide opportunity for public comment by publishing “the proposed modifications and the explanation of the modification” in the **Federal Register** . The WTO panel in US - *Zeroing* has found the denial of offsets in certain antidumping duty investigations, when using the average-to-average comparison methodology, to be inconsistent with Article 2.4.2 of the Antidumping Agreement. 4 Accordingly, the Department proposes that it will no longer make average-to-average comparisons without providing offsets for non-dumped comparisons. 4 *US - Zeroing* , para. 7.32. The Department is soliciting comments pertaining to this proposal and appropriate methodologies to be applied in future antidumping duty investigations in light of the panel's report in *US - Zeroing* . Timetable After considering all comments received, the Department intends to publish in the **Federal Register** a final notice regarding the calculation of the weighted average dumping margin using the average-to-average comparison methodology in an investigation. *See* section 123(g)(1)(F) of the URAA (19 U.S.C. 3533(g)(1)(F)). Any changes in methodology will be applied in all investigations initiated on the basis of petitions received on or after the first day of the month following the date of publication of the Department's final notice of the new weighted average dumping margin calculation methodology. Comments - Format Parties wishing to comment should submit a signed original and six copies of each set of comments, including reasons for any recommendations, along with a cover letter identifying the commenter's name and address. To help simplify the processing and distribution of comments and rebuttals, the Department requests that a submission in electronic form accompany the required paper copies. Comments filed in electronic form should be on CD-ROM in either WordPerfect format or a format that the WordPerfect program can convert into WordPerfect. Comments received on CD-ROM will be made available to the public on the Web at the following address: http://ia.ita.doc.gov/. In addition, upon request, the Department will make comments filed in electronic form available to the public on CD-ROMs (at cost) with specific instructions for accessing compressed data (if necessary). Any questions concerning file formatting, document conversion, access on the Web, or other electronic filing issues should be addressed to Andrew Lee Beller, IA Webmaster, at

(202)482-0866 or via e-mail at *andrew.beller@mail.doc.gov.* Dated: February 28, 2006. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. 06-2134 Filed 3-3-06; 1:14 pm]

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