[Federal Register Volume 67, Number 45 (Thursday, March 7, 2002)]
[Notices]
[Pages 10371-10377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5475]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-533-813]


Certain Preserved Mushrooms from India: Preliminary Results of 
Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: In response to timely requests by four manufacturer/exporters 
and the petitioner,\1\ on March 22, 2001, the Department of Commerce 
published a notice of initiation of an administrative review of the 
antidumping duty order on certain preserved mushrooms from India with 
respect to twelve companies. The period of review is February 1, 2000, 
through January 31, 2001.
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    \1\ The petitioner is the Coalition for Fair Preserved Mushroom 
Trade which includes the American Mushroom Institute and the 
following domestic companies: L.K. Bowman, Inc., Modern Mushroom 
Farms, Inc., Monterey Mushrooms, Inc., Mount Laurel Canning Corp., 
Mushrooms Canning Company, Southwood Farms, Sunny Dell Foods, Inc., 
and United Canning Corp.
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    We preliminarily determine that sales have been made below normal 
value. Interested parties are invited to comment on these preliminary 
results. If these preliminary results are adopted in our final results 
of administrative review, we will instruct the Customs Service to 
assess antidumping duties on all appropriate entries.

EFFECTIVE DATE: March 7, 2002.

FOR FURTHER INFORMATION CONTACT: David J. Goldberger, Kate Johnson, or 
Margarita Panayi, Office 2, AD/CVD Enforcement Group I, Import 
Administration-Room B099, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230; telephone: (202) 482-4136, (202) 482-4929, or 
(202) 482-0049, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as amended (the Act), are references to the provisions effective 
January 1, 1995, the effective date of the amendments made to the Act 
by the Uruguay Round Agreements Act (URAA). In addition, unless 
otherwise indicated, all citations to the Department of Commerce's (the 
Department's) regulations are to 19 CFR Part 351 (April 2001).

Background

    On February 19, 1999, the Department published in the Federal 
Register an amended final determination and antidumping duty order on 
certain preserved mushrooms from India (64 FR 8311).
    On February 14, 2001, the Department published a notice advising of 
the opportunity to request an administrative review of the antidumping 
duty order on certain preserved mushrooms from India (66 FR 10269). In 
response to timely requests by four manufacturer/exporters, Agro Dutch 
Foods Ltd. (Agro Dutch), Himalya International Ltd. (Himalya), 
Hindustan Lever Ltd. (formerly Ponds India Ltd.) (HLL), and Weikfield 
Agro Products, Ltd. (Weikfield), and the petitioner, the Department 
published a notice of initiation of an administrative review with 
respect to twelve companies: Agro Dutch, Alpine Biotech Ltd. (Alpine 
Biotech), Dinesh Agro Products Ltd. (Dinesh Agro), Flex Foods Ltd. 
(Flex Foods), Himalya, HLL, Mandeep Mushrooms Ltd. (Mandeep), Premier 
Mushroom Farms (Premier), Saptarishi Agro Industries Ltd. (Saptarishi), 
Techtran Agro Industries Limited (Techtran), Transchem Ltd.(Transchem), 
and Weikfield (66 FR 16037, March 22, 2001). The period of review (POR) 
is February 1, 2000, through January 31, 2001.
    On March 30, 2001, the Department issued antidumping duty 
questionnaires to the above-mentioned twelve companies. We received 
responses to the original questionnaire during the period May through 
July 2001. We issued supplemental questionnaires in August 2001 and 
January 2002, and received responses during the period August through 
September 2000 and February 2002.
    On April 23, 2001, we received a timely submission from HLL to 
withdraw its request for an administrative review. On April 24, 2001, 
we received a timely submission from the petitioner to withdraw its 
request for administrative reviews of HLL and Transchem.
    In June 2001, counsel for Saptarishi informed the Department that 
the company would no longer participate in the 2000-2001 administrative 
review. On June 14, 2001, we received a timely submission from the 
petitioner to withdraw its request for administrative review of Alpine 
Biotech, Dinesh Agro, Flex Foods, Mandeep, Premier, and Techtran. On 
July 13, 2001, the Department published a notice of partial recission 
of the antidumping duty administrative review with respect to Alpine 
Biotech, Dinesh Agro, Flex Foods, HLL, Mandeep, Premier, and Techtran, 
and Transchem (66 FR 36753). Therefore, the Department is reviewing 
only Agro Dutch, Himalya, Saptarishi and Weikfield in this 
administrative review.
    On July 11, 2001, the Department received an allegation from the 
petitioner that Himalya sold certain preserved mushrooms in India at 
prices below the cost of production (COP). On August 9, 2001, the 
Department initiated a cost investigation of Himalya's home-market 
sales of this merchandise. See August 9, 2001, Memorandum to Louis 
Apple from The Team Regarding ``Allegation of Sales Below the Cost of 
Production for Himalya International Limited (Himalya).'' On July 19, 
2001, the Department extended the time limit for the preliminary 
results in this review until February 28, 2002. See Certain Preserved 
Mushrooms from India, Indonesia, and the People's Republic of China: 
Notice of Extension of Time Limit for Preliminary Results in 
Antidumping Duty Administrative Reviews, 66 FR 37640.

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 
preserved mushrooms covered under this order are the species Agaricus 
bisporus and Agaricus bitorquis. ``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. 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

[[Page 10372]]

prepared or preserved by means of vinegar or acetic acid, but may 
contain oil or other additives.
    The merchandise subject to this order is classifiable under 
subheadings 2003.10.0027, 2003.10.0031, 2003.10.0037, 2003.10.0043, 
2003.10.0047, 2003.10.0053, and 0711.90.4000 of the Harmonized Tariff 
Schedule of the United States (HTS)\2\. Although the HTS subheadings 
are provided for convenience and customs purposes, our written 
description of the scope of this order is dispositive.
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    \2\ As of January 1, 2002, the HTS numbers are as follows: 
2003.10.0127, 2003.10.0131, 2003.10.0137, 2003.10.0143, 
2003.10.0147, 2003.10.0153, and 0711.51.0000.
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Use of Facts Otherwise Available

    As noted above in the ``Background'' section, Saptarishi informed 
the Department in June 2001 that it would no longer participate in this 
review. Because of Saptarishi's refusal to cooperate in this review, we 
determine that the application of facts available is appropriate, 
pursuant to section 776(a)(2) of the Act.
    Section 776(a)(2) of the Act provides that ``if an interested party 
or any other person (A) withholds information that has been requested 
by the administering authority; (B) fails to provide such information 
by the deadlines for the submission of the information or in the form 
and manner requested, subject to subsections (c)(1) and (e) of section 
782; (C) significantly impedes a proceeding under this title; or (D) 
provides such information but the information cannot be verified as 
provided in section 782(i), the administering authority shall, subject 
to section 782(d), use the facts otherwise available in reaching the 
applicable determination under this title.''
    Because Saptarishi refused to participate in this administrative 
review, we find that, in accordance with sections 776(a)(2)(A) and (C) 
of the Act, the use of total facts available is appropriate (see, e.g., 
Final Results of Antidumping Duty Administrative Review for Two 
Manufacturers/Exporters: Certain Preserved Mushrooms from the People's 
Republic of China, 65 FR 50183, 50184 (August 17, 2000) (for a more 
detailed discussion, see Preliminary Results of Antidumping Duty 
Administrative Review for Two Manufacturers/Exporters: Certain 
Preserved Mushrooms from the People's Republic of China, 65 FR 40609, 
40610-40611 (June 30, 2000)); Notice of Final Determination of Sales at 
Less Than Fair Value: Persulfates from the People's Republic of China, 
62 FR 27222, 27224 (May 19, 1997); and Certain Grain-Oriented 
Electrical Steel from Italy: Final Results of Antidumping Duty 
Administrative Review, 62 FR 2655 (January 17, 1997) (for a more 
detailed discussion, see Preliminary Results of Antidumping Duty 
Administrative Review: Certain Grain-Oriented Electrical Steel from 
Italy, 61 FR 36551, 36552 (July 4, 1996)).
    Section 776(b) of the Act provides 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 may use information that is adverse to the interests of the 
party as facts otherwise available. Adverse inferences are appropriate 
``to ensure that the party does not obtain a more favorable result by 
failing to cooperate than if it had cooperated fully.'' See Statement 
of Administrative Action (SAA) accompanying the URAA, H.R. Doc. No. 
103-316, at 870 (1994). Furthermore, ``an affirmative finding of bad 
faith on the part of the respondent is not required before the 
Department may make an adverse inference.'' See Antidumping Duties; 
Countervailing Duties: Final Rule, 62 FR 27296, 27340 (May 19, 1997).
    Section 776(b) of the Act authorizes the Department to use as 
adverse facts available information derived from the petition, the 
final determination from the LTFV investigation, a previous 
administrative review, or any other information placed on the record. 
Under section 782(c) of the Act, a respondent has a responsibility not 
only to notify the Department if it is unable to provide requested 
information, but also to provide a ``full explanation and suggested 
alternative forms.'' Saptarishi informed the Department of its 
unwillingness to participate in this review, thereby failing to comply 
with this provision of the statute. Therefore, we determine that 
Saptarishi failed to cooperate to the best of its ability, making the 
use of an adverse inference appropriate.
    In this proceeding, in accordance with Department practice (see, 
e.g., Rescission of Second New Shipper Review and Final Results and 
Partial Rescission of First Antidumping Duty Administrative Review 
Brake Rotors From the People's Republic of China, 64 FR 61581, 61584 
(November 12, 1999); and Fresh Garlic from the People's Republic of 
China: Final Results of Antidumping Duty Administrative Review, 65 FR 
33295 (May 23, 2000) (for a more detailed discussion, see Preliminary 
Results of Antidumping Duty Administrative Review: Fresh Garlic From 
the People's Republic of China, 64 FR 39115 (July 21, 1999)), as 
adverse facts available, we have preliminarily assigned to exports of 
the subject merchandise produced by Saptarishi the rate of 66.24 
percent, the highest rate calculated for any cooperative respondent in 
the original less-than-fair-value (LTFV) investigation or the 1998-2000 
administrative review. The rates assigned to respondents in the 
previous two segments of the proceeding range from single digits for 
cooperative respondents to a petition rate of 243.87 for non-
cooperative respondents. 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 rule to induce respondents to provide 
the Department with complete and accurate information in a timely 
manner.'' See Final Determination of Sales at Less than Fair Value: 
Static Random Access Memory Semiconductors from Taiwan, 63 FR 8909, 
8932 (February 23, 1998). We find the application of a rate of 66.24 
percent to Saptarishi to be sufficiently adverse in this case.
    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 (id.). To corroborate secondary information, 
the Department will, to the extent practicable, examine the reliability 
and relevance of the information to be used.
    Unlike other types of information, such as input costs or selling 
expenses, there are no independent sources from which the Department 
can derive calculated dumping margins; the only source for margins is 
administrative determinations. In an administrative review, if the 
Department chooses as facts available 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, because it was 
calculated in accordance with the statute.

[[Page 10373]]

    With respect to the relevance aspect of corroboration, the 
Department will consider information reasonably at its disposal as to 
whether there are circumstances that would render a margin not 
relevant. Where circumstances indicate that the selected margin may not 
be relevant, the Department will attempt to find a more appropriate 
basis for facts available. See, e.g., Final Results of Antidumping Duty 
Administrative Review: Fresh Cut Flowers from Mexico, 61 FR 6812, 6814 
(February 22, 1996) (where the Department disregarded the highest 
margin as best information available because the margin was based on 
another company's uncharacteristic business expense resulting in an 
unusually high margin).
    We preliminarily determine that the calculated margin selected, as 
adverse facts available, is relevant, and has probative value because 
it is based on verified data from a respondent in the immediately 
preceding administrative review. Although this margin is the highest in 
the range of calculated margins, there is no basis to conclude that it 
is aberrational or is inappropriate as applied to Saptarishi. 
Accordingly, we determine that this rate is an appropriate rate to be 
applied in this review to exports of the subject merchandise produced 
by Saptarishi as facts otherwise available.

Allegation of Duty Reimbursement

    In its January 30, 2002, comments, the petitioner alleges that 
because Agro Dutch and Weikfield are the importers of record for the 
preserved mushrooms they produce and export to the United States, and, 
therefore, pay all applicable antidumping cash deposits and duties on 
this merchandise, they are paying duties on behalf of their respective 
importers within the meaning of the Department's reimbursement 
regulation. See 19 CFR 351.402(f). In numerous cases, the Department 
has held that reimbursement within the meaning of the regulation does 
not occur when the importer and exporter are the same legal entity. 
Because Agro Dutch and Weikfield function both as the exporter and U.S. 
importer of the preserved mushrooms they produce, there is no basis for 
reducing U.S. price under the Department's reimbursement regulation. 
See, e.g., Certain Welded Carbon Steel Pipes and Tubes from Thailand: 
Final Results of Antidumping Duty Administrative Review, 66 FR 53388 
(October 22, 2001), and accompanying Issues and Decision Memorandum at 
Comment 1.

Fair Value Comparisons

    To determine whether sales of certain preserved mushrooms by the 
respondents to the United States were made at less than normal value, 
we compared constructed export price (CEP) or export price, as 
appropriate, to the normal value, as described in the ``Export Price/
Constructed Export Price'' and ``Normal Value'' sections of this 
notice.
    Pursuant to section 777A(d)(2) of the Act, we compared the export 
prices of individual U.S. transactions to the weighted-average normal 
value of the foreign like product where there were sales made in the 
ordinary course of trade, as discussed in the ``Cost of Production 
Analysis'' section below.
    In this review, neither Agro Dutch nor Weikfield had a viable home 
or third country market. Therefore, as the basis for normal value, we 
used constructed value when making comparisons in accordance with 
section 773(a)(4) of the Act.

Product Comparisons

    In accordance with section 771(16) of the Act, we considered all 
products produced by the respondents covered by the description in the 
``Scope of the Order'' section, above, to be foreign like products for 
purposes of determining appropriate product comparisons to U.S. sales. 
With respect to Himalya, we compared U.S. sales to sales made in the 
home 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 in the home 
market made in the ordinary course of trade to compare to U.S. sales, 
we compared U.S. sales to sales of the most similar foreign like 
product made in the ordinary course of trade. Where there were no sales 
of identical or similar merchandise made in the ordinary course of 
trade in the home market to compare to U.S. sales, we compared U.S. 
sales to constructed value. In making the product comparisons, we 
matched foreign like products based on the physical characteristics 
reported by the respondents in the following order: preservation 
method, container type, mushroom style, weight, grade, container 
solution, and label type.
    For Agro Dutch and Weikfield, we compared U.S. sales to constructed 
value because these respondents had insufficient home market and/or 
third country sales during the POR. See ``Normal Value'' section below 
for further discussion.

Export Price/Constructed Export Price

    For Agro Dutch and Weikfield, we used export price methodology, in 
accordance with section 772(a) of the Act, because the subject 
merchandise was sold first to an unaffiliated purchaser in the United 
States prior to importation and CEP methodology was not otherwise 
indicated. With respect to Himalya, we calculated CEP in accordance 
with section 772(b) of the Act, because the subject merchandise was 
first sold by Transatlantic or Global Reliance, Himalya's affiliated 
importers in the United States, after importation into the United 
States. We based export price and CEP on packed, FOB, C&F, CIF, ex 
port/warehouse, and delivered prices, as appropriate, to unaffiliated 
purchasers in the United States. For each respondent, for those U.S. 
sales for which the payment was not received as of the date of the last 
questionnaire response, we recalculated imputed credit for purposes of 
a circumstance-of-sale (COS) adjustment using the date of the 
preliminary results, February 28, 2002, as the date of the payment. We 
will provide the respondents an opportunity to provide updated payment 
data for use in the final results.

Agro Dutch

    We made deductions from the starting price, where appropriate, for 
foreign inland freight, freight document charges, insurance, foreign 
brokerage, Indian export duty (CESS), and international freight in 
accordance with section 772(c)(1) of the Act and 19 CFR 351.402(a).
    In a February 11, 2002, submission, Agro Dutch stated that it made 
data entry errors in reporting the per-unit expenses incurred on 
certain U.S. sales for foreign inland freight, foreign brokerage, and 
CESS. Agro Dutch provided a revised sales listing with that submission 
in which it claimed to correct these errors. However, this unsolicited 
sales data revision is incomplete, as the accompanying narrative lacks 
details about the nature of the errors and corrections made by Agro 
Dutch, and is untimely for analysis and use in the preliminary results. 
Accordingly, we are using the information in the previously submitted 
sales response for the preliminary results. However, we will provide 
Agro Dutch with an opportunity to resubmit sales expense corrections, 
along with detailed explanations, following the issuance of the 
preliminary results for consideration in the final results.
    Also, in the February 11, 2002, submission, Agro Dutch advised the 
Department for the first time in this

[[Page 10374]]

segment of the proceeding that it received monetary advances from one 
of its customers in anticipation of future shipments for which the 
product and price were not determined at the time of the advance. This 
statement suggests that Agro Dutch may have a long-term contract or 
sales agreement with this customer, yet Agro Dutch claims that it had 
no binding contracts or agreements with any U.S. customers during the 
POR (see Agro Dutch's August 30, 2001, supplemental questionnaire 
response at page 1). Further, Agro Dutch's reporting of pre-payments 
appears inconsistent with its earlier statement that all of its U.S. 
sales are sold with payment terms of 90 days after the bill of lading 
date (see May 25, 2001, Section C questionnaire response at page C-12).
    In the previous review, Agro Dutch reported that it had a sales 
agreement of some sort with this customer, but failed to provide it for 
the record despite specific requests from the Department. Because the 
Department could not adequately determine whether Agro Dutch had 
reported the correct date of sale without reviewing the sales 
agreement, the Department made an adverse inference in applying facts 
available to calculation factors affected by the date of sale. See 
Certain Preserved Mushrooms from India: Preliminary Results of 
Antidumping Duty Administrative Review, 66 FR 13896, 13899 (March 8, 
2001) (1998-2000 Preliminary Results); and Certain Preserved Mushrooms 
from India: Final Results of Antidumping Duty Administrative Review, 66 
FR 42507 (August 13, 2001), and accompanying Issues and Decision 
Memorandum at Comment 2.
    Agro Dutch's February 11, 2002, description of its sales to this 
customer requires further explanation as to the existence of any sales 
agreement with this customer, the appropriate date of sale, and the 
relevant payment terms. However, we had insufficient time prior to the 
preliminary results to seek this clarification. Thus, for purposes of 
the preliminary results, we are relying on the same reasoning as in the 
1998-2000 Preliminary Results and applying partial facts available 
under section 776(a) of the Act to the data affected by date of sale 
and payment terms, namely the exchange rate for currency conversions 
and imputed credit. Given the untimeliness and incompleteness of Agro 
Dutch's explanation of the sale terms to this customer in this review, 
we find that, for purposes of the preliminary results, Agro Dutch has 
not cooperated to the best of its ability to comply with the 
Department's requests in the questionnaire and supplemental 
questionnaire to supply full information of its payment terms and 
copies of any sales agreements. Thus, adverse inferences are warranted 
in applying facts available for the affected data pursuant to section 
776(b) of the Act. As adverse facts available for the exchange rate, we 
are applying the highest exchange rate during the POR for all currency 
conversions involving these sales. As facts available for imputed 
credit, we are recalculating imputed credit for these sales by using 
the date of the preliminary results, February 28, 2002, as the payment 
date. We will provide Agro Dutch with the opportunity to provide 
further information on this topic after the issuance of the preliminary 
results for consideration in the final results.

Himalya

    We made deductions from the CEP starting price, where appropriate, 
for foreign inland freight, brokerage and handling expenses, 
international freight, marine insurance, U.S. duty, U.S. inland 
freight, and U.S. warehousing expenses in accordance with section 
772(c)(1) of the Act and 19 CFR 351.402(a). We also deducted indirect 
selling expenses, credit expenses, and inventory carrying costs 
pursuant to section 772(d)(1) of the Act and 19 CFR 351.402(b). We 
recalculated credit expenses and inventory carrying costs using a 
public-source U.S. interest rate. See February 28, 2002 Memorandum to 
the File Preliminary Results Calculation Memorandum for Himalya 
International Ltd. (Himalya) (Himalya Calculation Memo) for specifics 
as to why Himalya's reported U.S. interest rate data was insufficient. 
We made an adjustment for CEP profit in accordance with section 
773(d)(3) of the Act. Finally, since there was insufficient time prior 
to the preliminary results to request additional information/
clarification regarding certain expenses/adjustments, we will issue a 
supplemental questionnaire subsequent to the preliminary results. See 
Himalya Calculation Memo.

Weikfield

    We made deductions from the starting price, where appropriate, for 
discounts, foreign inland freight, foreign inland and marine insurance, 
foreign brokerage and handling, international freight, CESS, and U.S. 
duty (including U.S. brokerage and handling expenses) in accordance 
with section 772(c)(1) of the Act and 19 CFR 351.402(a).
    We revised Weikfield's reported discount amount granted to one 
customer based on information in the questionnaire responses to correct 
an allocation error acknowledged by Weikfield.

Normal Value

    In order to determine whether there was a sufficient volume of 
sales in the home market to serve as a viable basis for calculating 
normal value, we compared the respondents' volume of home market sales 
of the foreign like product to the volume of U.S. sales of the subject 
merchandise, in accordance with section 773(a)(1)(C) of the Act.
    Himalya's aggregate volume of home market sales of the foreign like 
product was greater than five percent of its aggregate volume of U.S. 
sales of the subject merchandise. Therefore, we determined that the 
home market provides a viable basis for calculating normal value for 
Himalya.
    With regard to Weikfield, we determined that its home market was 
not viable because the aggregate volume of home market sales of the 
foreign like product was less than five percent of the aggregate volume 
of U.S. sales of the subject merchandise. Agro Dutch reported that 
during the POR it made no home market sales. Neither Agro Dutch nor 
Weikfield reported any third country sales during the POR. Therefore, 
we determined that neither the home market nor any third country market 
was a viable basis for calculating normal value for Agro Dutch and 
Weikfield. As a result, we used constructed value as the basis for 
calculating normal value for these two respondents, in accordance with 
section 773(a)(4) of the Act.

Level of Trade

    Section 773(a)(1)(B)(i) of the Act states that, to the extent 
practicable, the Department will calculate normal value based on sales 
at the same level of trade (LOT) as the export price or CEP. Sales are 
made at different LOTs if they are made at different marketing stages 
(or their equivalent). See 19 CFR 351.412(c)(2). Substantial 
differences in selling activities are a necessary, but not sufficient, 
condition for determining that there is a difference in the stages of 
marketing (id.); see also Notice of Final Determination of Sales at 
Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate From 
South Africa, 62 FR 61731, 61732 (November 19, 1997). In order to 
determine whether the comparison sales were at different stages in the 
marketing process than the U.S. sales, we reviewed the distribution 
system in each market (i.e., the ``chain of distribution''), including 
selling functions, class of customer (``customer category''), and the 
level of selling expenses for each type of sale.

[[Page 10375]]

    Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying 
levels of trade for export price and comparison market sales (i.e., NV 
based on either home market or third country prices\3\), we consider 
the starting prices before any adjustments. For CEP sales, we consider 
only the selling activities reflected in the price after the deduction 
of expenses and profit under section 772(d) of the Act. See Micron 
Technology, Inc. v. United States, Court Nos. 00-1058-1060 (Fed. Cir. 
March 7, 2001).
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    \3\ Where normal value is based on constructed value, we 
determine the normal value LOT based on the LOT of the sales from 
which we derive selling expenses, general and administrative (G&A) 
and profit for constructed value, where possible.
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    When the Department is unable to find sales of the foreign like 
product in the comparison market at the same LOT as the export price or 
CEP, the Department may compare the U.S. sale to sales at a different 
LOT in the comparison market. In comparing export price or CEP sales at 
a different LOT in the comparison market, where available data make it 
practicable, we make a LOT adjustment under section 773(a)(7)(A) of the 
Act. Finally, for CEP sales only, if a normal value LOT is more remote 
from the factory than the CEP LOT and there is no basis for determining 
whether the difference in LOTs between normal value and CEP affected 
price comparability (i.e., no LOT adjustment is practicable), the 
Department shall grant a CEP offset, as provided in section 
773(a)(7)(B) of the Act. See Notice of Final Determination of Sales at 
Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate from 
South Africa, 62 FR 61731 (November 19, 1997).
    We examined Himalya's home market and U.S. distribution systems, 
including selling functions, classes of customers, and selling 
expenses. Himalya sold to wholesalers, retailers, caterers, canteens, 
and restaurants in the home market and through their affiliated 
importers to distributors and wholesalers in the United States. 
However, Himalya did not provide information on its selling activities 
for its transactions with its affiliated importers. Therefore, we are 
unable perform a LOT analysis comparing the selling functions provided 
by Himalya on its home market sales and those provided by Himalya on 
sales to its affiliated importers. Accordingly, an adjustment pursuant 
to sections 773(a)(7)(A) or 773(a)(7)(B) is not warranted.
    For Agro Dutch and Weikfield, because we based normal value on 
constructed value, and are applying the profit rate and selling expense 
rates calculated for these respondents from the most recently completed 
segment of this proceeding, i.e., the 1998-2000 administrative review, 
as both of these respondents had viable foreign markets in that review 
(see ``Calculation of Constructed Value'' section below), we are also 
using the information from the previous review for our LOT analysis. In 
that review, we found a single LOT for both Agro Dutch and Weikfield. 
See 1998 - 2000 Preliminary Results, 66 FR at 13898. Therefore, we made 
neither a LOT adjustment nor a CEP offset (in the case of Himalya) to 
normal value for any of the companies in this review.

Cost of Production Analysis

    The Department disregarded certain sales made by Agro Dutch and 
Weikfield in the 1998-2000 administrative review, pursuant to findings 
in that review that sales failed the cost test (see Certain Preserved 
Mushrooms from India: Preliminary Results of Antidumping Duty 
Administrative Review, 66 FR 13896 (March 8, 2001)). Thus, in 
accordance with section 773(b)(2)(A)(ii) of the Act, there are 
reasonable grounds to believe or suspect that respondents Agro Dutch 
and Weikfield made sales in the home market or third country at prices 
below the cost of producing the merchandise in the current review 
period. However, as discussed above in the ``Normal Value'' section of 
this notice, neither Agro Dutch nor Weikfield had a viable home or 
third country market during the POR. Accordingly, we cannot perform a 
cost test with regard to Agro Dutch or Weikfield. In addition, as 
stated in the ``Background'' section of this notice, based on a timely 
allegation filed by the petitioner, the Department initiated an 
investigation to determine whether Himalya's home market sales were 
made at prices less than the cost of production within the meaning of 
section 773(b) of the Act.

A. Calculation of COP

    We calculated the COP on a product-specific basis, based on the sum 
of Himalya's cost of materials and fabrication for the foreign like 
product, plus amounts for selling, general and administrative (SG&A) 
expenses, interest expense, and the cost of all expenses incidental to 
placing the foreign like product in a condition packed ready for 
shipment in accordance with section 773(b)(3) of the Act.
    We relied on COP information submitted by Himalya, except for the 
following adjustments: we recalculated G&A and interest expenses to 
include certain expenses which were not included in the original 
calculation. See Himalya Calculation Memo.

B. Test of Home Market Prices

    For Himalya, we compared the weighted-average, per-unit COP figures 
for the POR to home market sales of the foreign like product, as 
required by section 773(b) of the Act, in order to determine whether 
these sales were made at prices below the COP. In determining whether 
to disregard home market sales made at prices below the COP, we 
examined whether: (1) within an extended period of time, such sales 
were made in substantial quantities; and (2) such sales were made at 
prices which permitted the recovery of all costs within a reasonable 
period of time. On a product-specific basis, we compared the COP, 
consisting of the cost of manufacturing, G&A and interest expenses, to 
the net home market prices, less any applicable movement charges, 
rebates, discounts, and direct and indirect selling expenses. We 
revised indirect selling expenses to allocate 12 months of expenses 
over 12 months of sales because Himalya reported a ratio of 12 months 
of expenses to ten months of sales (see Himalya Calculation Memo).

C. Results of COP Test

    The results of our cost test for Himalya indicated all sales were 
at prices above COP. We therefore retained all sales in our analysis 
and used them as the basis for determining normal value.

Price-to-Price Comparisons

    For Himalya, we based normal value on the price at which the 
foreign like product is first sold for consumption in the home market, 
in the usual commercial quantities and in the ordinary course of trade, 
and at the same LOT as CEP, as defined by section 773(a)(1)(B)(i) of 
the Act.
    We reduced normal value for inland freight, insurance and 
brokerage, and discounts and rebates, where appropriate, in accordance 
with section 773(a)(6) of the Act and 19 CFR 351.401.
    We also reduced normal value for packing costs incurred in the home 
market, in accordance with section 773(a)(6)(B)(i), and increased 
normal value to account for U.S. packing expenses in accordance with 
section 773(a)(6)(A). We made a deduction for credit expenses, where 
appropriate, pursuant to section 773(a)(6)(C)(iii) of the Act and 19 
CFR 351.410. Finally, we made adjustments to normal value, where 
appropriate, for differences in costs attributable to differences in 
the physical characteristics of the

[[Page 10376]]

merchandise, pursuant to section 773(a)(6)(C)(ii) of the Act and 19 CFR 
351.411.

Calculation of Constructed Value

    We calculated constructed value in accordance with section 773(e) 
of the Act, which indicates that constructed value shall be based on 
the sum of each respondent's cost of materials and fabrication for the 
subject merchandise, plus amounts for SG&A expenses, profit and U.S. 
packing costs. For Agro Dutch and Weikfield, we relied on the submitted 
constructed value information except for the following adjustments:

Agro Dutch

    Agro Dutch revised its G&A and interest expense rates in its 
supplemental response but did not submit a revised constructed value 
data base reflecting these revisions. We recalculated the G&A and 
interest rates using this revised data.

Weikfield

    We recalculated Weikfield's G&A rate using information based on its 
2000-2001 audited financial statement. For an explanation of the 
recalculation, see the February 28, 2002, Memorandum to the File 
Weikfield Preliminary Results Calculation Notes.
    Because Agro Dutch and Weikfield had no viable home or third 
country market during the POR, we derived profit and selling expenses 
for Agro Dutch and Weikfield in accordance with section 
773(e)(2)(B)(iii) of the Act and the Statement of Administrative Action 
accompanying the URAA, H.R. Doc. No. 103-316, Vol.1 at 839-841 (1994) 
(SAA). Section 773(e)(2)(B)(iii) of the Act allows the Department to 
calculate selling expenses and profit using any reasonable method, 
provided that the amount for profit does not exceed the amount normally 
realized by exporters or producers ``in connection with the sale, for 
consumption in the foreign country, of merchandise that is in the same 
general category of products as the subject merchandise,'' the so-
called ``profit cap.'' See 19 CFR 351.405(b)(2) (clarifying that under 
section 773(e)(2)(B) of the Act, ``foreign country'' means the country 
in which the merchandise is produced). However, when the Department is 
unable to calculate a ``profit cap'' due to an absence of information 
on the record, it may calculate profit based on the facts otherwise 
available based on any reasonable method and without a profit cap. See 
the SAA at 841.
    For this review, we are unable to determine the amounts that 
exporters and producers of merchandise that is in the same general 
category of products as the subject merchandise in the foreign market 
incurred and realized for selling expenses and profit (i.e., we are 
unable to calculate a ``profit cap'') due to insufficient information 
on the record. As facts available, we are applying the profit rates and 
selling expenses calculated for Agro Dutch and Weikfield, respectively, 
in the most recent segment of this proceeding. See February 28, 2002, 
Memoranda to the File Agro Dutch 1998-2000 Profit and Selling Expense 
Rate Calculations and Weikfield 1998-2000 Profit and Selling Expense 
Rate Calculations. This approach is consistent with that applied in 
Frozen Concentrated Orange Juice from Brazil: Final Results and Partial 
Rescission of Antidumping Duty Administrative Review, 66 FR 51008, 
(October 5, 2001), and accompanying Issues and Decision Memorandum at 
Comment 3.
    Agro Dutch provided profit rate information on certain Indian food 
processors in its February 11, 2002, submission. This unsolicited new 
factual information was received too late for any consideration in the 
preliminary results. Further, it is incomplete as the information 
consists solely of the profit rates and sales results of certain Indian 
companies, without any supporting information such as complete annual 
reports or financial statements for these companies. We will provide 
Agro Dutch with an opportunity to supplement this information with 
supporting details in time for consideration in the final results. We 
will extend the same opportunity to the other parties in this segment 
of the proceeding to submit additional factual information relevant to 
the selection of the constructed value profit and selling rates for 
consideration in the final results.

Price-to-Constructed Value Comparisons

    For Agro Dutch and Weikfield, we based normal value on constructed 
value, in accordance with section 773(a)(4) of the Act. For comparisons 
to Agro Dutch's and Weikfield's export price sales, we made COS 
adjustments by deducting from constructed value the weighted-average 
home market direct selling expenses and adding the U.S. direct selling 
expenses, in accordance with section 773(a)(8) of the Act and section 
19 C.F.R. 351.410.
    As noted above under the ``Export Price/Constructed Export Price'' 
section, for Agro Dutch and Weikfield, we recalculated imputed credit 
expenses used for COS adjustment purposes on U.S. sales unpaid as of 
the last questionnaire response. As discussed above, we also 
recalculated imputed credit expenses on U.S. sales made by Agro Dutch 
to a particular customer.

Currency Conversion

    We made currency conversions in accordance with section 773A of the 
Act 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 determine that the 
weighted-average dumping margins for the period February 1, 2000, 
through January 31, 2001, are as follows:

------------------------------------------------------------------------
                                                                Percent
                    Manufacturer/Exporter                       Margin
------------------------------------------------------------------------
Agro Dutch Foods, Ltd.......................................        1.54
Himalya International, Ltd..................................        0.68
Saptarishi Agro Industries, Inc.............................       66.24
Weikfield Agro Products, Ltd................................        0.00
------------------------------------------------------------------------

    We will disclose the calculations used in our analysis to parties 
to this proceeding within five days of the publication date of this 
notice. See 19 CFR 351.224(b). Any interested party may request a 
hearing within 30 days of publication. See 19 CFR 351.310(c). If 
requested, a hearing will be scheduled upon receipt of responses to 
supplemental questionnaires and determination of briefing schedule.
    Interested parties who wish to request a hearing or to participate 
if one is requested, must submit a written request to the Assistant 
Secretary for Import Administration, Room B-099, within 30 days of the 
date of publication of this notice. Requests should contain: (1) the 
party's name, address and telephone number; (2) the number of 
participants; and (3) a list of issues to be discussed. See 19 CFR 
351.310(c).
    Issues raised in the hearing will be limited to those raised in the 
respective case briefs. Case briefs from interested parties and 
rebuttal briefs, limited to the issues raised in the respective case 
briefs, may be submitted in accordance with a schedule to be determined 
upon the receipt of responses to supplemental questionnaires, which the 
Department will issue subsequent to the preliminary results. Parties 
who submit case briefs or rebuttal briefs in this proceeding are 
requested to submit with each argument (1) a statement of the issue and 
(2) a brief summary of the argument. Parties are also encouraged to 
provide a summary of the arguments not to exceed five pages and a table 
of statutes, regulations, and cases cited.

[[Page 10377]]

    The Department will issue the final results of this administrative 
review, including the results of its analysis of issues raised in any 
written briefs, not later than 120 days after the date of publication 
of this notice.

Assessment Rates

    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. The Department 
will issue appropriate appraisement instructions directly to the 
Customs Service upon completion of this review. The final results of 
this review shall be the basis for the assessment of antidumping duties 
on entries of merchandise covered by the final results of this review 
and for future deposits of estimated duties. We will instruct the 
Customs Service 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 
(i.e., less than 0.50 percent). See 19 CFR 351.106(c)(1). For 
assessment purposes, we intend to calculate importer-specific 
assessment rates for the subject merchandise by aggregating the dumping 
margins calculated for all U.S. sales examined and dividing this amount 
by the total entered value of the sales examined.

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 rates for the reviewed 
companies will be those established in the final results of this 
review, except if the rate is less than 0.50 percent, and therefore, de 
minimis within the meaning of 19 CFR 351.106(c)(1), in which case the 
cash deposit rate will be zero; (2) for previously reviewed or 
investigated 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 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 will continue to 
be 11.30 percent, the ``All Others'' rate made effective by the LTFV 
investigation. These 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) 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 published in accordance 
with section 751(a)(1) of the Act and 19 CFR 351.221.

    February 28, 2002.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 02-5475 Filed 3-6-02; 8:45 am]
BILLING CODE 3510-DS-S