Antidumping Duty Administrative Reviews; Preliminary Results:
Federal Register Volume 76, Number 195 (Friday, October 7, 2011)
Notices
Pages 62349-62356
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
FR Doc No: 2011-26069
DEPARTMENT OF COMMERCE
International Trade Administration
A-570-848
Preliminary Results Freshwater Crawfish Tail Meat From the
People's Republic of China: of Antidumping Duty Administrative Review and Intent To Rescind Review in Part
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: In response to timely requests, the Department of Commerce
(the Department) is conducting an administrative review of the antidumping duty order on freshwater crawfish tail meat from the
People's Republic of China (PRC). The period of review (POR) is
September 1, 2009, through August 31, 2010.
Although we have preliminarily determined that sales have not been made below normal value by Xiping Opeck Food Co., Ltd., our analysis of the applicable transactions requires additional information. See discussion below. We have preliminarily determined that sales have been made below normal value by China Kingdom (Beijing) Import & Export Co.,
Ltd.
We invite interested parties to comment on these preliminary results. Parties who submit comments in this review are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument.
DATES: Effective Date: October 7, 2011.
FOR FURTHER INFORMATION CONTACT: Dmitry Vladimirov or Minoo Hatten, AD/
CVD Operations, Office 5, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482- 0665 and (202) 482-1690, respectively.
Background
On September 15, 1997, the Department published in the Federal
Register an amended final determination and antidumping duty order on freshwater crawfish tail meat from the PRC. See Notice of Amendment to
Final Determination of Sales at Less Than Fair Value and Antidumping
Duty Order: Freshwater Crawfish Tail Meat From the People's Republic of
China, 62 FR 48218 (September 15, 1997). On September 1, 2010, the
Department published in the Federal Register a notice of opportunity to request an administrative review of the order. See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation;
Opportunity To Request Administrative Review, 75 FR 53635 (September 1, 2010).
On October 28, 2010, based on timely requests for an administrative review, the Department published in the Federal Register a notice of initiation of an administrative review of the antidumping duty order on freshwater crawfish tail meat from the PRC. See Initiation of
Antidumping and Countervailing Duty Administrative Reviews, 75 FR 66349
(October 28, 2010) (Initiation). The review was initiated with respect to China Kingdom (Beijing) Import & Export Co., Ltd. (China Kingdom),
Shanghai Ocean Flavor International Trading Co., Ltd. (Shanghai Ocean
Flavor), Xiping Opeck Food Co., Ltd. (Xiping Opeck), Xuzhou Jinjiang
Foodstuffs Co., Ltd. (Xuzhou Jinjiang), Yancheng Hi-King Agriculture
Developing Co., Ltd. (Yancheng Hi-King), and Nanjing Gemsen
International Co., Ltd (Nanjing Gemsen).
On November 18, 2010, we selected Xiping Opeck and Yancheng Hi-King for individual examination. See memorandum entitled ``Freshwater
Crawfish Tail Meat from the People's Republic of China--Respondent
Selection,'' dated November 18, 2010.
The Department rescinded the review with respect to Yancheng Hi-
King in Freshwater Crawfish Tail Meat From the People's Republic of
China: Rescission of Antidumping Duty Administrative
Page 62350
Review in Part, 76 FR 10879 (February 28, 2011).
We extended the due date for the preliminary results of review by 120 days to September 30, 2011. See Freshwater Crawfish Tail Meat From the People's Republic of China: Extension of Time Limit for Preliminary
Results of Antidumping Duty Administrative Review, 76 FR 32357 (June 6, 2011), and Freshwater Crawfish Tail Meat From the People's Republic of
China: Extension of Time Limit for Preliminary Results of Antidumping
Duty Administrative Review, 76 FR 43260 (July 20, 2011).
We are conducting this review in accordance with section 751 of the
Tariff Act of 1930, as amended (the Act).
Scope of the Order
The product covered by the order is freshwater crawfish tail meat, in all its forms (whether washed or with fat on, whether purged or unpurged), grades, and sizes; whether frozen, fresh, or chilled; and regardless of how it is packed, preserved, or prepared. Excluded from the scope of the order are live crawfish and other whole crawfish, whether boiled, frozen, fresh, or chilled. Also excluded are saltwater crawfish of any type and parts thereof. Freshwater crawfish tail meat is currently classifiable in the Harmonized Tariff Schedule of the
United States (HTSUS) under item numbers 1605.40.10.10 and 1605.40.10.90, which are the HTSUS numbers for prepared foodstuffs, indicating peeled crawfish tail meat and other, as introduced by U.S.
Customs and Border Protection (CBP) in 2000, and HTSUS numbers 0306.19.00.10 and 0306.29.00.00, which are reserved for fish and crustaceans in general. The HTSUS subheadings are provided for convenience and customs purposes only. The written description of the scope of the order is dispositive.
Intent To Rescind Review in Part
In accordance with 19 CFR 351.213(d)(3), the Department may rescind an administrative review, ``in whole or only with respect to a particular exporter or producer, if {the Department{time} concludes that, during the period covered by the review, there were no entries, exports, or sales of the subject merchandise * * *.'' Record evidence indicates that Shanghai Ocean Flavor, Xuzhou Jinjiang, and Nanjing
Gemsen did not have any exports of subject merchandise during the POR.
See the November 1, 2010, submissions from Shanghai Ocean Flavor and
Nanjing Gemsen and the December 22, 2010, submission from Xuzhou
Jinjiang. Moreover, we have reviewed the CBP entry data for the POR and found no evidence of exports from these three entities. See Memorandum to File entitled ``Freshwater Crawfish Tail Meat from the People's
Republic of China--placing CBP data on the record of this review,'' dated November 3, 2010. Additionally, on January 10, 2011, we requested that CBP report any contrary information. To date, CBP has not responded to our inquiry \1\ and we have not received any evidence that these three entities had any shipments to the United States of subject merchandise during the POR. Therefore, pursuant to 19 CFR 351.213(d)(3), the Department intends to rescind this review in part with respect to Shanghai Ocean Flavor, Xuzhou Jinjiang, and Nanjing
Gemsen.
\1\ CBP only responds to the Department's inquiry when there are records of shipments from the company in question. See, e.g.,
Certain Hot-Rolled Flat-Rolled Carbon Quality Steel Flat Products
From Brazil: Notice of Rescission of Antidumping Duty Administrative
Review, 75 FR 65453, 65454 (October 25, 2010).
Allegation of Middleman Dumping
On June 7, 2011, the Crawfish Processors Alliance (CPA) made an allegation of middleman dumping. Between June 20, 2011, and August 19, 2011, we received comments from Xiping Opeck and CPA concerning the allegation. As we explain in detail in the memorandum entitled
``Freshwater Crawfish Tail Meat from the People's Republic of China--
Evaluation of an Allegation of Middleman Dumping and Nature of
Transactions Pertaining to the Entries Under Review,'' dated concurrently with this notice, at this time we do not find a middleman dumping inquiry as such to be the appropriate vehicle by which to examine the transactions relevant to the entries subject to this review. The record evidence suggests, however, a lack of commercial soundness in the transactions reported by Xiping Opeck in this review and that another entity in the distribution channel plays a role in the pricing associated with the entries of subject merchandise in this review.\2\ Further inquiry and a determination on this issue is key in establishing whether another company in the distribution channel and/or
Xiping Opeck is the entity properly subject to a dumping inquiry as an exporter of subject merchandise and ultimately responsible for the pricing of entries of crawfish tail meat into the United States at issue in this review. Consequently, we intend to issue a questionnaire to the entity alleged to be involved with entries subject to this review. After these preliminary results are published, we will issue our determination regarding the findings of our inquiry.
\2\ We are withholding the identity of the alleged middleman because Xiping Opeck's customer claimed business-proprietary treatment of this information.
Non-Market-Economy Country Status
The Department considers the PRC to be a non-market-economy (NME) country. In accordance with section 771(18)(C)(i) of the Act, any determination that a country is an NME country shall remain in effect until revoked by the administering authority. See Brake Rotors From the
People's Republic of China: Preliminary Results and Partial Rescission of the 2004/2005 Administrative Review and Preliminary Notice of Intent
To Rescind the 2004/2005 New Shipper Review, 71 FR 26736 (May 8, 2006)
(unchanged in Brake Rotors From the People's Republic of China: Final
Results and Partial Rescission of the 2004/2005 Administrative Review and Notice of Rescission of 2004/2005 New Shipper Review, 71 FR 66304
(November 14, 2006)). None of the parties to this proceeding has contested NME treatment for the PRC. Therefore, for these preliminary results of administrative review we have treated the PRC as an NME country and applied our current NME methodology in accordance with section 773(c) of the Act.
Surrogate Country
In antidumping proceedings involving NME countries, pursuant to section 773(c)(1) of the Act, the Department generally bases normal value on the value of the NME producer's factors of production (FOP).
In accordance with section 773(c)(4) of the Act, in valuing the FOP the
Department uses, to the extent possible, the prices or costs of the FOP in one or more market-economy countries that are at a level of economic development comparable to that of the NME country which are significant producers of merchandise comparable to the subject merchandise. The
Department has determined that India, Indonesia, the Philippines, Peru,
Ukraine, and Thailand are countries that are at a level of economic development comparable to that of the PRC.\3\ Moreover, it is the
Department's practice to select an appropriate surrogate country based on the availability and reliability of data from these countries. See
Department Policy Bulletin No. 04.1: Non-Market Economy Surrogate
Country Selection Process, dated March 1, 2004. While none of the
Page 62351
countries the Department selected is a significant producer of freshwater crawfish tail meat,\4\ India has a seafood-processing industry that is comparable to the crawfish industry with respect to factory overhead, selling, general, and administrative (SG&A) expenses, and profit.\5\ Therefore, we have selected India as the primary surrogate country in which to value all inputs with the exception of live crawfish, the primary input, and the by-product, crawfish-shell scrap.
\3\ See Memorandum entitled ``Request for a List of Surrogate
Countries for an Administrative Review of the Antidumping Duty Order on Freshwater Crawfish Tail Meat (``FCTM'') from the People's
Republic of China (``PRC'')'' dated January 7, 2011.
\4\ See Memorandum entitled ``Freshwater Crawfish Tail Meat from the People's Republic of China: Selection of a Surrogate Country,'' dated September 30, 2011 (Surrogate-Country Memo).
\5\ Id.
As noted, India does not have a fresh-crawfish industry (although it has a sea-crawfish industry) and we have determined that other forms of seafood are not sufficiently comparable to crawfish to serve as surrogates for live crawfish. Accordingly, we have valued live crawfish using the only information available on the record with which to value live crawfish, data which was obtained from the same source that was used to value live crawfish in several previous segments of this proceeding, i.e., imports of live crawfish from Portugal into Spain as reported by Agencia Tributaria, the Spanish government agency responsible for trade statistics.\6\ Spain is a significant producer of comparable merchandise, i.e., whole processed crawfish,\7\ and there are publicly available import statistics for Spain.
\6\ For an example of a previous segment of the proceeding where this source was used, see Freshwater Crawfish Tail Meat From the
People's Republic of China: Preliminary Results of Antidumping Duty
Administrative and New-Shipper Reviews, 75 FR 34100 (June 16, 2010)
(unchanged in Freshwater Crawfish Tail Meat From the People's
Republic of China: Final Results of Antidumping Duty Administrative and New-Shipper Reviews, 75 FR 79337 (December 20, 2010)).
\7\ See Surrogate-Country Memo.
We have selected Indonesia as a secondary surrogate country for purposes of valuing the crawfish shell by-product because there are no appropriate Indian surrogate values for crawfish shell by-product on the record of this review and because the Indonesian pricing data are the only information available on the record with which to value crawfish shells. In addition, we find that Indonesia is appropriate to use for the following reasons: (a) It is at a level of economic development comparable to the PRC; (b) it produces wet crab and shrimp shells which are merchandise comparable to the shell by-product; (c) it has publicly available data, i.e., a public price quote from an
Indonesian company that has been used in prior segments of this proceeding.\8\
\8\ See Memorandum entitled ``Surrogate Valuation of Shell
Scrap: Freshwater Crawfish Tail Meat from the People's Republic of
China, Administrative Review 9/1/00-8/31/01 and New Shipper Reviews 9/1/00-8/31/01 and 9/1/00-10/15/01'' dated August 5, 2002, which has been placed on the record of this review.
Separate Rates
A designation of a country as an NME remains in effect until it is revoked by the Department. See section 771(18)(C) of the Act. In proceedings involving NME countries, the Department has a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value, and Affirmative Critical Circumstances, In Part:
Certain Lined Paper Products From the People's Republic of China, 71 FR 53079 (September 8, 2006), and Final Determination of Sales at Less
Than Fair Value and Final Partial Affirmative Determination of Critical
Circumstances: Diamond Sawblades and Parts Thereof From the People's
Republic of China, 71 FR 29303 (May 22, 2006).
In the Initiation, the Department notified parties of the application process by which exporters and producers may obtain separate rate status in NME proceedings. See Initiation, 75 FR at 66350. It is the Department's policy to assign all exporters of merchandise subject to a proceeding involving an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. The Department assigns separate rates in NME proceedings only if respondents can demonstrate the absence of both de jure and de facto government control over export activities under a test developed by the Department and described in Final Determination of Sales at Less Than Fair Value:
Sparklers From the People's Republic of China, 56 FR 20588 (May 6, 1991) (Sparklers), and Notice of 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).
In this administrative review, Xiping Opeck and China Kingdom are the only companies that submitted a separate rate certification.
Additionally, the Department received a complete response to the antidumping questionnaire from Xiping Opeck which contained additional information pertaining to the company's eligibility for a separate rate.
Absence of De Jure Control
The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate: (1) An absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; (3) any other formal measures by the government decentralizing control of companies. See
Sparklers, 56 FR at 20589.
Xiping Opeck and China Kingdom have both placed on the administrative record a copy of their business licenses and Foreign
Trade Operator Registration Records. Xiping Opeck also placed on the administrative record a copy of the company's Articles of
Incorporation. None of these documents contains restrictions with respect to export activities. In its separate rate certifications,
Xiping Opeck and China Kingdom both certified the following concerning the companies during the POR: (1) As with the previous segment of the proceeding in which each firm was granted a separate rate (previous
Granting Period), there were no government laws or regulations that controlled each firm's export activities; (2) the ownership under which the firm registered itself with the official government business license issuing authority remains the same as for the previous Granting
Period; (3) the firm had a valid PRC Export Certificate of Approval, now referred to and labeled as a Registration Form for Foreign Trade
Operator; (4) as in the previous Granting Period, in order to conduct export activities, the firm was not required by law or regulation at any level of government to possess additional certificates or other documents related to the legal status and/or operation of its business beyond those discussed above; (5) PRC government laws and legislative enactments applicable to Xiping Opeck and China Kingdom remained the same as in the previous Granting Period. In prior cases, we have found an absence of de jure control absent proof on the record to the contrary. See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value: Furfuryl Alcohol From the People's Republic of China, 60 FR 22544 (May 8, 1995) (Furfuryl Alcohol). We have no information in this review that would cause us to reconsider this determination.
Further, prior verifications have confirmed that there are no commodity-specific export licenses required and no quotas for the seafood category ``Other,''
Page 62352
which includes crawfish, in China's Tariff and Non-Tariff Handbook for 1996 and 1997. See Freshwater Crawfish Tail Meat From The People's
Republic of China; Preliminary Results of New Shipper Review, 64 FR 8543 (February 22, 1999) (1999 Crawfish NSR Preliminary Results)
(unchanged in Freshwater Crawfish Tail Meat From the People's Republic of China; Final Results of New Shipper Review, 64 FR 27961 (May 24, 1999)).
We have confirmed previously that freshwater crawfish tail meat is not on the list of commodities with planned quotas in the 1992 PRC
Ministry of Foreign Trade and Economic Cooperation document entitled
Temporary Provisions for Administration of Export Commodities. See 1999
Crawfish NSR Preliminary Results, 64 FR at 8544.
The Department has found previously that the Company Law of the
People's Republic of China governing business activities of Xiping
Opeck and China Kingdom, made effective on July 1, 1994, with the amended version promulgated on August 28, 2004, states that a company is an enterprise legal person, that shareholders shall assume liability towards the company to the extent of their shareholdings, and that the company shall be liable for its debts to the extent of all its assets.
See Freshwater Crawfish Tail Meat From the People's Republic of China:
Preliminary Results and Partial Rescission of the 2005-2006 Antidumping
Duty Administrative Review and Preliminary Intent to Rescind 2005-2006
New Shipper Reviews, 72 FR 57288 (October 9, 2007) (unchanged in
Freshwater Crawfish Tail Meat From the People's Republic of China:
Final Results and Partial Rescission of the 2005-2006 Antidumping Duty
Administrative Review and Rescission of 2005-2006 New Shipper Reviews, 73 FR 20249 (April 15, 2008)).
Additionally, the Foreign Trade Law of the People's Republic of
China also indicates a lack of de jure government control.
Specifically, this document identifies the rights and responsibilities of organizations engaging in foreign trade, grants autonomy to foreign- trade operators in management decisions, and establishes the foreign- trade operator's accountability for profits and losses. Based on the foregoing, the Department has preliminarily determined that there is an absence of de jure governmental control over the export activities of
Xiping Opeck and China Kingdom.
Absence of De Facto Control
As stated in previous cases, there is some evidence that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC. See
Silicon Carbide, 59 FR at 22587. Therefore, the Department has determined that an analysis of de facto control is critical in determining whether the respondents are, in fact, subject to a degree of government control which would preclude the Department from assigning separate rates. The Department typically considers the following four factors in evaluating whether a respondent is subject to de facto government control of its export functions: (1) Whether the export prices are set by, or subject to the approval of, a government agency; (2) whether the respondent has the authority to negotiate and sign contracts and other agreements; (3) whether the respondent has autonomy from the government in making decisions regarding the selection of management; (4) whether the respondent retains the proceeds of its export sales and makes independent decisions regarding the disposition of profits or financing of losses. See Silicon Carbide, 59 FR at 22586-87, and Furfuryl Alcohol, 60 FR at 22545.
Xiping Opeck and China Kingdom have each made the following assertions: (1) It establishes its own export prices; (2) it negotiates contracts without guidance from any government entities or organizations; (3) it makes its own personnel decisions; (4) it retains the proceeds of its export sales, uses profits according to its business needs, and has the authority to sell its assets and to obtain loans.
Based on the information on the record of this review, the
Department has preliminarily determined that there is an absence of de facto governmental control over the export activities of Xiping Opeck and China Kingdom. Given that the Department has found that Xiping
Opeck and China Kingdom operate free of de jure and de facto governmental control, we have preliminarily determined that Xiping
Opeck and China Kingdom have satisfied the criteria for a separate rate.
Separate Rate for a Non-Selected Company
In accordance with section 777A(c)(2)(B) of the Act, we selected
Xiping Opeck and Yancheng Hi-King for individual examination because we did not have the resources to examine all companies for which a review was requested. See Memorandum entitled ``Freshwater Crawfish Tail Meat
From the People's Republic of China--Respondent Selection'' dated
November 18, 2010. China Kingdom is the only exporter of crawfish tail meat from the PRC that demonstrated its eligibility for a separate rate which was not selected for individual examination in this review.
The statute and the Department's regulations do not address the establishment of a rate to be applied to individual companies not selected for examination when the Department limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act.
Generally we have looked to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for respondents we did not examine in an administrative review. Section 735(c)(5)(A) of the Act articulates a preference that we are not to calculate an all- others rate using any zero or de minimis margins or any margins based entirely on facts available. Accordingly, the Department's usual practice has been to average the rates for the selected companies, excluding zero, de minimis, and rates based entirely on facts available. See Ball Bearings and Parts Thereof From France, Germany,
Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty
Administrative Reviews and Rescission of Reviews in Part, 73 FR 52823, 52824 (September 11, 2008), and accompanying Issues and Decision (I&D)
Memorandum at Comment 16. Section 735(c)(5)(B) of the Act also provides that, where all margins are zero, de minimis, or based entirely on facts available, we may use ``any reasonable method'' for assigning the rate to non-selected respondents, including ``averaging the estimated weighted-average dumping margins determined for the exporters and producers individually investigated.''
In previous cases, the Department has determined that a
``reasonable method'' to use when, as here, the rates of the respondents selected for individual examination are zero and de minimis is to apply to those companies not selected for individual examination
(but eligible for a separate rate in NME cases) the average of the most recently determined rates that are not zero, de minimis, or based entirely on facts available (which may be from a prior administrative review or a new shipper review).\9\ If any
Page 62353
such non-selected company had its own calculated rate that is contemporaneous with or more recent than such prior determined rates, however, the Department has applied such individual rate to the non- selected company in the review in question, including when that rate is zero or de minimis.\10\ In this case, there is only one non-selected company under review that is eligible for a separate rate and this company received its own calculated rate that is contemporaneous with or more recent than the most recent rates determined for other companies that are not zero, de minimis, or based entirely on facts available. Accordingly, we have concluded that in this case a reasonable method for determining the rate for the non-selected company, China Kingdom, is to apply its most recent individually calculated rate. Pursuant to this method, we are preliminarily assigning a rate of 18.87 percent to China Kingdom, its calculated rate in the previous administrative review. See Freshwater Crawfish Tail
Meat From the People's Republic of China: Final Results of Antidumping
Duty Administrative and New-Shipper Reviews, 75 FR 79337 (December 20, 2010). In assigning this separate rate, we did not impute the actions of any other companies to the behavior of the company not individually examined but based this determination on record evidence that may be deemed reasonably reflective of the potential dumping margin for the non-individually examined company, China Kingdom, in this administrative review.
\9\ See Certain Frozen Warmwater Shrimp From the People's
Republic of China: Preliminary Results and Preliminary Partial
Rescission of Fifth Antidumping Duty Administrative Review, 76 FR 8338, 8342 (February 14, 2011) (unchanged in Administrative Review of Certain Frozen Warmwater Shrimp From the People's Republic of
China: Final Results and Partial Rescission of Antidumping Duty
Administrative Review, 76 FR 51940 (August 19, 2011)); see also
Administrative Review of Certain Frozen Warmwater Shrimp From the
People's Republic of China: Final Results and Partial Rescission of
Antidumping Duty Administrative Review, 75 FR 49460, 49463 (August 13, 2010), and Amanda Foods (Vietnam) Ltd. v. United States, 2011 WL 1423126 (CIT April 14, 2011).
\10\ See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Preliminary Results of the New Shipper Review and Fourth Antidumping Duty Administrative Review and Partial
Rescission of the Fourth Administrative Review, 73 FR 52015
(September 8, 2008), Certain Frozen Fish Fillets From the Socialist
Republic of Vietnam: Final Results of the Antidumping Duty
Administrative Review and New Shipper Reviews, 74 FR 11349 (March 17, 2009) (changing rate for non-selected respondents because the final calculated rate for the selected respondent was above de minimis) (unchanged in Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam: Amended Final Results of the Fourth
Antidumping Duty Administrative Review, 74 FR 17816 (April 17, 2009)); see also Certain Frozen Warmwater Shrimp From the Socialist
Republic of Vietnam: Final Results and Final Partial Rescission of
Antidumping Duty Administrative Review, 74 FR 47191, 47195
(September 15, 2009), and accompanying I&D Memorandum at Comment 16.
U.S. Price
In accordance with section 772(a) of the Act, we based Xiping
Opeck's U.S. price on export price because the first sales to unaffiliated purchasers were made prior to importation and constructed export price was not otherwise warranted by the facts on the record. We calculated export price based on the packed Cost and Freight price to the first unaffiliated purchaser in the United States. In accordance with section 772(c) of the Act, we calculated net export price by deducting foreign inland-freight expenses, foreign brokerage and handling expenses, ocean-freight expenses, and cold-storage expenses from the starting price (gross unit price) charged to the first unaffiliated customer in the United States. We based all movement expenses on surrogate values because a PRC company provided the movement services for Xiping Opeck (see the ``Normal Value'' section of this notice for further details).
Normal Value
Section 773(c)(1) of the Act provides that the Department shall determine normal value using an FOP methodology if the merchandise is exported from an NME country and the available information does not permit the calculation of normal value using home-market prices, third- country prices, or constructed value under section 773(a) of the Act.
The Department uses an FOP methodology because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under its normal methodologies. See Tapered Roller Bearings and Parts Thereof,
Finished or Unfinished, From the People's Republic of China:
Preliminary Results of Antidumping Duty Administrative Review and
Notice of Intent to Rescind in Part, 70 FR 39744, 39754 (July 11, 2005)
(unchanged in Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, from the People's Republic of China: Final Results of 2003- 2004 Administrative Review and Partial Rescission of Review, 71 FR 2517
(January 17, 2006)).
In accordance with section 773(c) of the Act, we relied on the FOP data reported by Xiping Opeck for the POR.\11\ We calculated normal value by adding together the value of the FOP, general expenses, profit, and packing costs. Specifically, we valued material, labor, energy, and packing by multiplying the reported per-unit rates for the factors consumed in producing the subject merchandise by the average per-unit surrogate value of the factor. In addition, we added freight costs to the surrogate costs that we calculated for material inputs. We calculated freight costs by multiplying surrogate freight rates by the shorter of the reported distance from the domestic supplier to the factory that produced the subject merchandise or the distance from the nearest seaport to the factory that produced the subject merchandise, as appropriate. This adjustment is in accordance with the decision by the United States Court of Appeals for the Federal Circuit in Sigma
Corp. v. United States, 117 F.3d 1401, 1407-1408 (Fed. Cir. 1997). We increased the calculated costs of the FOP for surrogate general expenses and profit. See Memorandum to the File entitled ``Fresh
Crawfish Tail Meat from the People's Republic of China: Surrogate-Value
Memorandum,'' dated September 30, 2011 (Surrogate-Value Memo).
\11\ We based the values of the FOPs on surrogate values (see
``Surrogate Values'' section).
Surrogate Values
In selecting surrogate values, we considered the quality, specificity, and contemporaneity of the data. For these preliminary results, in selecting the best available data for valuing FOPs in accordance with section 773(c)(1) of the Act, we followed our practice of choosing publicly available values which are non-export average values, most contemporaneous with the POR, product-specific, and tax- exclusive. See, e.g., Notice of Preliminary Determination of Sales at
Less Than Fair Value, Negative Preliminary Determination of Critical
Circumstances and Postponement of Final Determination: Certain Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69
FR 42672, 42682 (July 16, 2004) (unchanged in Final Determination of
Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater
Shrimp From the Socialist Republic of Vietnam, 69 FR 71005 (December 8, 2004)). We also considered the quality of the source of surrogate information in selecting surrogate values. See Notice of Final
Determination of Sales at Less Than Fair Value: Certain Cased Pencils
From the People's Republic of China, 59 FR 55625, 55633 (November 8, 1994). Where we could only obtain surrogate values that were not contemporaneous with the POR, we inflated the surrogate values using, where appropriate, the Indian Wholesale Price Index (Indian WPI), the
Indonesian Wholesale Price Index (Indonesian WPI), or Spanish Wholesale
Price Index (Spanish WPI), as
Page 62354
published in the International Financial Statistics of the
International Monetary Fund. See Surrogate-Value Memo.
As explained in the legislative history of the Omnibus Trade and
Competitiveness Act of 1988, the Department continues to apply its long-standing practice of disregarding surrogate values if it has a reason to believe or suspect the source data may be subsidized.\12\ In this regard, we have found previously that it is appropriate to disregard such prices from India, Indonesia, South Korea, and Thailand because we have determined that these countries maintain broadly available, non-industry specific export subsidies.\13\ Based on the existence of these subsidy programs that were generally available to all exporters and producers in these countries at the time of the POR, the Department finds that it is reasonable to infer that all exporters from India, Indonesia, South Korea, and Thailand may have benefitted from these subsidies. Additionally, we disregarded prices from NME countries.\14\ Finally, imports that were labeled as originating from an ``unspecified'' country were excluded from the average value because the Department could not be certain that they were not from either an
NME country or a country with generally available export subsidies.\15\
\12\ Omnibus Trade and Competitiveness Act of 1988, Conf. Report to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd Sess.
(1988) at 590, reprinted in 1988 U.S.C.C.A.N. 1547, 1623-24.
\13\ See, e.g., Carbazole Violet Pigment 23 from India: Final
Results of the Expedited Five-Year (Sunset) Review of the
Countervailing Duty Order, 75 FR 13257 (March 19, 2010), and accompanying I&D Memorandum at 4-5, Certain Cut-to-Length Carbon-
Quality Steel Plate from Indonesia: Final Result of Expedited Sunset
Review, 70 FR 45692 (August 8, 2005), and accompanying I&D
Memorandum at 4, Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea: Final Results of Countervailing Duty
Administrative Review, 74 FR 2512 (January 15, 2009), and accompanying I&D Memorandum at 17, 19-20, and Final Affirmative
Countervailing Duty Determination: Certain Hot-Rolled Carbon Steel
Flat Products from Thailand, 66 FR 50410 (October 3, 2001), and accompanying I&D Memorandum at 23.
\14\ See, e.g., Certain Kitchen Appliance Shelving and Racks
From the People's Republic of China: Preliminary Determination of
Sales at Less Than Fair Value and Postponement of Final
Determination, 74 FR 9591, 9600 (March 5, 2009) (unchanged in
Certain Kitchen Appliance Shelving and Racks From the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, 74 FR 36656 (July 24, 2009)).
\15\ Id.
We used the following surrogate values in our margin calculations for these preliminary results of review. We valued coal and packing materials using September 2009-August 2010 weighted-average Indian import values derived from the Global Trade Atlas online (GTA). The
Indian import statistics that we obtained from the GTA were published by the Directorate General of Commercial Intelligence & Statistics,
Ministry of Commerce of India, and are contemporaneous with the POR.
We valued whole live crawfish using the publicly available data for
Spanish imports of whole live crawfish from Portugal during the 2008- 2009 POR and inflated this value using the Spanish WPI to make it contemporaneous with the POR.\16\ We valued the crawfish shell by- product using a 2001 price quote from Indonesia for wet crab and shrimp shells and inflated this value using the Indonesian WPI to make it contemporaneous with the POR.
\16\ We determined that it is not appropriate to use the contemporaneous Spanish import prices because the volume of shipments from Portugal during the POR does not appear to reflect the industry's typical commercial quantity. See, e.g., Freshwater
Crawfish Tail Meat From the People's Republic of China: Notice of
Preliminary Results of Antidumping Duty Administrative Review and
Preliminary Partial Rescission of Antidumping Duty Administrative
Review, 66 FR 52100, 52105 (October 12, 2001) (unchanged in
Freshwater Crawfish Tail Meat From the People's Republic of China:
Final Results of Antidumping Duty Administrative and New-Shipper
Reviews, 75 FR 79337 (December 20, 2010)) (2008-2009 Crawfish
Review); see also Surrogate-Value Memo for further details.
We valued water using data from the Maharashtra Industrial
Development Corporation (http://www.midcindia.org) because this source includes a wide range of industrial water tariffs. Specifically, this source provides numerous industrial water rates within the Maharashtra province for December 2009 (for the ``inside industrial areas'' usage category and for the ``outside industrial areas'' usage category). We excluded industrial areas where either no data were reported or a ``0'' was reported. We inflated the surrogate value for water using the
Indian WPI to make it contemporaneous with the POR.
To value electricity, we used March 2008 electricity price rates from Electricity Tariff & Duty and Average Rates of Electricity Supply in India, published by the Central Electricity Authority of the
Government of India. As the rates listed in this source became effective on a variety of different dates, we are not adjusting the average value for inflation.
We valued non-refrigerated truck-freight expenses using an average of the per-unit average rates for September 2009, December 2009, March 2010, and June 2010 which we calculated from data at http://www.infobanc.com/logistics/logtruck.htm. The logistics section of this
Web site contains rates for inland-freight trucking between many large
Indian cities. We inflated (or deflated, depending on the month) the per-unit average truck-freight rates for the selected months of the POR using the Indian WPI to make it contemporaneous with the POR. We valued refrigerated-truck freight expenses based on price quotations for April 2004 from CTC Freight Carriers of Delhi, India, placed originally on the record of the antidumping investigation of certain frozen warmwater shrimp from the PRC. We inflated this surrogate value using the Indian
WPI.
We valued brokerage and handling expenses using a price list of export procedures necessary to export a standardized cargo of goods in
India. The price list is compiled based on a survey case study of the procedural requirements for trading a standard shipment of goods by ocean transport in India that is published in Doing Business 2011:
India, published by the World Bank. Because these data were current throughout the POR, we did not inflate the value for brokerage and handling. See Surrogate-Value Memo for further details.
We valued international freight using the data obtained from the
Descartes Carrier Rate Retrieval Database (Descartes) which is available at http://descartes.com/. The Descartes database is a Web- based service which publishes the ocean freight rates of numerous carriers. In prior administrative reviews the Department did not use the Descartes database as an ocean freight surrogate value source because the data did not appear to be publicly available. See, e.g.,
Fresh Garlic from the People's Republic of China: Final Results and
Partial Rescission of Antidumping Duty Administrative Review and Final
Results of New Shipper Reviews, 71 FR 26329 (May 4, 2006), and accompanying I&D Memorandum at Comment 7. Upon reexamination, however, we have found that this database is accessible to government agencies without charge in compliance with Federal Maritime Commission regulations and, thus, we now find that this is a publicly available source.
In addition to being publicly available, the Descartes data reflect rates for multiple carriers, the Web site reports rates on a daily basis, the price data are based on routes that correspond closely to those used by the respondent, and they reflect merchandise similar to subject merchandise. Therefore, the Descartes data are product- specific, publicly available, a broad-market average, and contemporaneous with the POR. Accordingly, we find that the Descartes database is the best available source for valuing international freight on the record of this review because it
Page 62355
provides rates that are representative of the entire POR and a broader representation of product-specificity.
While we find that the Descartes database is the superior source on the record of the reviews for valuing international freight, to make the source less impractical, we had to define certain parameters in our selection of data. For example, we calculated the period-average international freight rate by obtaining rates from multiple carriers for a single day in each quarter of the POR. Further, we did not include rates in the period-average international freight calculation that we determined were from NME carriers. Additionally, we excluded from any individual rate calculation any charges that are covered by the brokerage and handling expenses that the respondent incurred and which are valued by the appropriate surrogate value. See Surrogate-
Value Memo for further details.
For Xiping Opeck, we valued cold storage using a 2010-2011 long- term lease price quote obtained from Snowman Frozen Foods Ltd., an
Indian national company involved in the distribution and storage of frozen and chilled foods. Because data reported in this source were not contemporaneous with the POR, we deflated the surrogate value for cold storage using the Indian WPI. See Surrogate-Value Memo. This source was used in the 2008-2009 Crawfish Review. When the product is fully processed, packed, and then placed into a cold-storage facility not located at the production/processing facility prior to the date of shipment from the exporting country, our practice is to treat cold storage as a movement expense and deduct it from the U.S. price. See, e.g., Fresh Garlic From the People's Republic of China: Final Results of Antidumping Duty New Shipper Reviews, 69 FR 46498, 46500 (August 3, 2004).
Previously, with respect to valuation of labor inputs, the
Department used regression-based wages that captured the worldwide relationship between per capita Gross National Income (GNI) and hourly manufacturing wages, pursuant to 19 CFR 351.408(c)(3), to value the respondent's cost of labor. On May 14, 2010, the Court of Appeals for the Federal Circuit (CAFC) in Dorbest Ltd. v. United States, 604 F.3d 1363, 1372 (Fed. Cir. 2010) (Dorbest), invalidated 19 CFR 351.408(c)(3). As a consequence of the CAFC's ruling in Dorbest, the
Department no longer relies on the regression-based wage rate methodology described in its regulations. On February 18, 2011, the
Department published in the Federal Register a request for public comment on the interim methodology and the data sources. See
Antidumping Methodologies in Proceedings Involving Non-Market
Economies: Valuing the Factor of Production: Labor; Request for
Comment, 76 FR 9544 (February 18, 2011).
On June 21, 2011, the Department revised its methodology for valuing the labor input in NME antidumping proceedings. See Antidumping
Methodologies in Proceedings Involving Non-Market Economies: Valuing the Factor of Production: Labor, 76 FR 36092 (June 21, 2011) (Labor
Methodologies). In Labor Methodologies, the Department determined that the best methodology to value the labor input is to use industry- specific labor rates from the primary surrogate country. Additionally, the Department determined that the best data source for industry- specific labor rates is Chapter 6A: Labor Cost in Manufacturing, from the International Labor Organization (ILO) Yearbook of Labor Statistics
(Yearbook).
For these preliminary results, we have calculated the labor inputs using the method described in Labor Methodologies. To value Xiping
Opeck's labor inputs, we relied on data reported by India to the ILO in
Chapter 6A of the Yearbook. We find further that the two-digit description under ISIC-Revision 3 (i.e., 15--``Manufacture of Food
Products and Beverages'') is the best available information on the record because it is specific to the industry being examined and is therefore derived from industries that produce comparable merchandise.
Specifically, this category captures class 1512--``Processing and
Preserving of Fish and Fish Products.'' Accordingly, relying on Chapter 6A of the Yearbook, we calculated the labor inputs using labor data reported by India to the ILO under Sub-Classification 15 of the ISIC-
Revision 3 standard in accordance with section 773(c)(4) of the Act.
The ILO data reported under Chapter 6A of the Yearbook reflects all costs related to labor, including wages, benefits, housing, training, etc. A more detailed description of the wage-rate calculation methodology is provided in the Surrogate-Value Memo.
We valued SG&A, factory overhead costs, and profit using the 2007- 2008 financial statements of Nekkanti Sea Foods Ltd., an Indian seafood processor. See Surrogate-Value Memo. Because the financial statements used to calculate the surrogate financial ratios do not include itemized detail of labor costs, we did not make adjustments to certain labor costs in the surrogate financial ratios. See Labor Methodologies, 76 FR at 36093.
Currency Conversion
We made currency conversions into U.S. dollars in accordance with section 773A(a) 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. These exchange rates are available on the IA Web site at http://ia.ita.doc.gov/exchange/index.html.
Preliminary Results of Review
As a result of the administrative review, we preliminarily determine that the following weighted-average percentage dumping margins exist for the period September 1, 2009, through August 31, 2010:
Margin
Company
(percent)
Xiping Opeck Food Co., Ltd............................
0.00
China Kingdom (Beijing) Import & Export Co., Ltd......
18.87
Comments
We will disclose the calculations used in our analysis to interested parties to this review within five days of the date of publication of this notice. See 19 CFR 351.224(b).
Case briefs from interested parties may be submitted not later than seven (7) days after the date on which we issue our determination regarding the findings of our inquiry into the selling practices of the entity alleged to be involved with entries subject to this review. See 19 CFR 351.309(c)(1)(ii). Rebuttal briefs from interested parties, limited to the issues raised in the case briefs, may be submitted not later than five days after the time limit for filing the case briefs or comments. See 19 CFR 351.309(d)(1).
Any interested party may request a hearing no later than the date on which the case briefs are due. See 19 CFR 351.310. Interested parties who wish to request a hearing or to participate in a hearing if a hearing is requested must submit a written request to the Assistant
Secretary for Import Administration. Requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; (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 case briefs. See 19 CFR 351.310(c).
If requested, any hearing will be held two days after the scheduled date for submission of rebuttal briefs. See 19
Page 62356
CFR 351.310(d). Parties who submit case briefs or rebuttal briefs in this review are requested to submit with each argument a statement of the issue, a summary of the arguments not exceeding five pages, and a table of statutes, regulations, and cases cited. See 19 CFR 351.309(c)(2).
The Department intends to issue the final results of this administrative review, including the results of its analysis of issues raised in any such written briefs or at the hearing, if held, not later than 120 days after the date of publication of this notice. See section 751(a)(3)(A) of the Act.
Assessment Rates
The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated importer-specific (or customer- specific) assessment rates for merchandise subject to this review.
Based on these preliminary results, we will direct CBP to assess no dumping duties on each entry made by the sole importer Xiping Opeck reported as its customer.
For China Kingdom, we will instruct CBP to apply the rate listed above to all entries of subject merchandise exported by this company.
We intend to issue assessment instructions to CBP 15 days after the date of publication of the final results of review.
Cash-Deposit Requirements
The following cash-deposit requirements will be effective upon publication of the final results of review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date as provided by section 751(a)(2)(C) of the Act: (1) For subject merchandise exported by Xiping
Opeck and China Kingdom, the cash-deposit rate will be that established in the final results of review; (2) for previously reviewed or investigated 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) for all other PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash-deposit rate will be PRC-wide rate of 223.01 percent; (4) for all non-PRC exporters of subject merchandise the cash- deposit rate will be the rate applicable to the PRC entity that supplied that exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
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 review and notice are in accordance with sections 751(a)(1), 751(a)(2)(B)(iv), 751(a)(3), and 777(i) of the Act.
Dated: September 30, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
FR Doc. 2011-26069 Filed 10-6-11; 8:45 am
BILLING CODE 3510-DS-P
