Antidumping Duty Administrative Reviews; Preliminary Results and Preliminary Partial Rescissions:
Federal Register: February 14, 2011 (Volume 76, Number 30)
Notices
Page 8338-8345
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr14fe11-34
DEPARTMENT OF COMMERCE
International Trade Administration
A-570-893
Certain Frozen Warmwater Shrimp From the People's Republic of
China: Preliminary Results and Preliminary Partial Rescission of Fifth
Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp (``shrimp'') from the People's Republic of China
(``PRC''), covering the period of review (``POR'') of February 1, 2009, through January 31, 2010. As discussed below, the Department preliminarily determines that the respondent in this review did not make sales in the United States at prices below normal value (``NV'') during the POR.
DATES: Effective Date: February 14, 2011.
FOR FURTHER INFORMATION CONTACT: Kabir Archuletta, AD/CVD Operations,
Office 9, Import Administration, International Trade Administration,
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230; telephone (202) 482-2593.
SUPPLEMENTARY INFORMATION:
Background
The Department received timely requests from members of the Ad Hoc
Shrimp Trade Action Committee (``Petitioner'') and the American Shrimp
Processors Association and the Louisiana Shrimp Association
(collectively, ``domestic parties''), in accordance with 19 CFR 351.213(b), during the anniversary month of February, for administrative reviews of the antidumping duty order on shrimp from the
PRC. On April 9, 2010, the Department initiated an administrative review of 92 producers/exporters of subject merchandise from the PRC.
See Notice of Initiation of Administrative Reviews and Requests for
Revocation in Part of the Antidumping Duty Orders on Certain Frozen
Warmwater Shrimp From the Socialist Republic of Vietnam and the
People's Republic of China, 75 FR 18154 (April 9, 2010)
(``Initiation''). However, after accounting for duplicate names and additional trade names associated with certain exporters, the number of companies upon which we initiated was actually 88.\1\
\1\ The following companies were duplicated: Fuqing Yihua
Aquatic Food Co., Ltd. and/or Fuqing Yihua Aquatic Products Co.,
Ltd., Regal Marine Resources Co., Ltd., Shantou Longsheng Aquatic
Product, and Zhanjiang Regal Integrated Marine Resources.
Between April 15, 2010, and April 27, 2010, the following companies submitted ``no shipment certifications'' \2\: Allied Pacific Food
(Dalian) Co., Ltd., Allied Pacific Aquatic Products (Zhanjiang) Co.,
Ltd., Zhanjiang Allied Pacific Aquaculture Co., Ltd., Allied Pacific
(H.K.) Co., Ltd., and King Royal Investments Ltd.; \3\ Shantou Yelin
Frozen Seafood Co., Ltd. (doing business as (``d.b.a.'') Shantou Yelin
Quick-Freeze Marine Products Co., Ltd.); Fuqing Yihua Aquatic Food Co.,
Ltd.; Fuqing Minhua Trade Co., Ltd.; and Yangjiang City Yelin Hoitat
Quick Frozen Seafood Co., Ltd.
\2\ Companies have the opportunity to submit statements certifying that they did not ship the subject merchandise to the
United States during the POR.
\3\ The Department did not initiate upon Zhanjiang Allied
Pacific Aquaculture Co., Ltd., Allied Pacific (H.K.) Co., Ltd., and
King Royal Investments Ltd. because no parties requested a review of them for this POR.
On July 6, 2010, Petitioner withdrew its request for an administrative review of Allied Pacific Aquatic Products (Zhanjiang)
Co., Ltd. and Allied Pacific Food (Dalian) Co., Ltd. Petitioner was the only party to request a review of these companies. Accordingly, on July 20, 2010, the Department published a partial rescission with respect to these two companies. See Certain Frozen Warmwater Shrimp from the
People's Republic of China: Partial Rescission of Antidumping Duty
Administrative Review, 75 FR 42070 (July 20, 2010) (``Partial
Rescission'').
Respondent Selection
On May 17, 2010, in accordance with section 777A(c)(2) of the
Tariff Act of 1930, as amended (``Act''), the Department selected
Hilltop International (``Hilltop'') for individual examination in this review, since it was the largest exporter by volume during the POR, based on U.S. Customs and Border Protection (``CBP'') data of U.S. imports. See Memorandum to James Doyle, Director, Office 9, from Kabir
Archuletta, Case Analyst, Office 9, ``Antidumping Duty Administrative
Page 8339
Review of Certain Frozen Warmwater Shrimp from the People's Republic of
China: Selection of Respondents for Individual Review,'' dated May 17, 2010.
Questionnaires
On May 18, 2010, the Department issued its initial non-market economy (``NME'') antidumping duty questionnaire to Hilltop, and issued supplemental questionnaires to Hilltop between July 2010 and November 2010. Hilltop responded to the Department's initial and subsequent supplemental questionnaires between June 2010 and November 2010.
Surrogate Country and Surrogate Values
On July 20, 2010, the Department sent interested parties a letter requesting comments on the surrogate country and information pertaining to the valuation of factors of production (``FOPs''). On August 31, 2010, the Department received comments from Hilltop and Petitioner regarding selection of a surrogate country. On September 10, 2010, the
Department received comments from Hilltop, domestic parties and
Petitioner regarding selection of surrogate country and valuation of
FOPs. On September 20, 2010, the Department received rebuttal comments from Hilltop regarding surrogate value submissions.
Case Schedule
On September 17, 2010, in accordance with section 751(a)(3)(A) of the Act, we extended the time period for issuing the preliminary results by 120 days, until February 28, 2011. See Certain Frozen
Warmwater Shrimp From the People's Republic of China: Extension of
Preliminary Results of Antidumping Duty Administrative Review, 75 FR 56988 (September 17, 2010).
Scope of the Order
The scope of the order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,\4\ deveined or not deveined, cooked or raw, or otherwise processed in frozen form.
\4\ ``Tails'' in this context means the tail fan, which includes the telson and the uropods.
The frozen warmwater shrimp and prawn products included in the scope of the order, regardless of definitions in the Harmonized Tariff
Schedule of the United States (``HTS''), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, white-leg shrimp (Penaeus vannemei), banana prawn
(Penaeus merguiensis), fleshy prawn (Penaeus chinensis), giant river prawn (Macrobrachium rosenbergii), giant tiger prawn (Penaeus monodon), redspotted shrimp (Penaeus brasiliensis), southern brown shrimp
(Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern rough shrimp (Trachypenaeus curvirostris), southern white shrimp
(Penaeus schmitti), blue shrimp (Penaeus stylirostris), western white shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of the order. In addition, food preparations, which are not ``prepared meals,'' that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of the order.
Excluded from the scope are: (1) Breaded shrimp and prawns (HTS subheading 1605.20.1020); (2) shrimp and prawns generally classified in the Pandalidae family and commonly referred to as coldwater shrimp, in any state of processing; (3) fresh shrimp and prawns whether shell-on or peeled (HTS subheadings 0306.23.0020 and 0306.23.0040); (4) shrimp and prawns in prepared meals (HTS subheading 1605.20.0510); (5) dried shrimp and prawns; (6) Lee Kum Kee's shrimp sauce; (7) canned warmwater shrimp and prawns (HTS subheading 1605.20.1040); (8) certain dusted shrimp; and (9) certain battered shrimp. Dusted shrimp is a shrimp- based product: (1) That is produced from fresh (or thawed-from-frozen) and peeled shrimp; (2) to which a ``dusting'' layer of rice or wheat flour of at least 95 percent purity has been applied; (3) with the entire surface of the shrimp flesh thoroughly and evenly coated with the flour; (4) with the non-shrimp content of the end product constituting between four and 10 percent of the product's total weight after being dusted, but prior to being frozen; and (5) that is subjected to individually quick frozen (``IQF'') freezing immediately after application of the dusting layer. Battered shrimp is a shrimp- based product that, when dusted in accordance with the definition of dusting above, is coated with a wet viscous layer containing egg and/or milk, and par-fried.
The products covered by the order are currently classified under the following HTS subheadings: 0306.13.0003, 0306.13.0006, 0306.13.0009, 0306.13.0012, 0306.13.0015, 0306.13.0018, 0306.13.0021, 0306.13.0024, 0306.13.0027, 0306.13.0040, 1605.20.1010 and 1605.20.1030. These HTS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of the order is dispositive.
Affiliation/Single Entity
Based on the evidence on the record in this administrative review, including information found in Hilltop's questionnaire responses, the
Department preliminarily finds affiliation between Hilltop and
Yangjiang City Yelin Hoitat Quick Frozen Seafood Co., Ltd. and Fuqing
Yihua Aquatic Food Co., Ltd., producers of subject merchandise, pursuant to section 771(33)(F) of the Act. Further, we preliminarily find Hilltop affiliated with Yelin Enterprise Co., Ltd., Ocean Beauty
Corporation, and Ever Hope International Co., Ltd., Taiwanese resellers of subject merchandise, pursuant to 771(33)(A) and (F) of the Act.
Lastly, we preliminarily find affiliation between Hilltop and Ocean
Duke Corporation, a U.S. importer of subject merchandise, pursuant to sections 771(33)(A) and (F) of the Act.
Based on the evidence presented in Hilltop's questionnaire responses, we preliminarily find that Hilltop, Yelin Enterprise Co.,
Ltd., Ocean Beauty Corporation, and Ever Hope International Co., Ltd., should be treated as a single entity for the purposes of this administrative review. This finding is based on our determination that
Yelin Enterprise Co., Ltd., Ocean Beauty Corporation, and Ever Hope
International Co., Ltd., are involved in the export of subject merchandise sold by Hilltop and that a significant potential for manipulation of price or production exists between these entities.\5\
For a detailed discussion of
Page 8340
this issue, see Memorandum to the File, through Catherine Bertrand,
Program Manager, Office 9, from Kabir Archuletta, Case Analyst, Office 9, ``Preliminary Determination of Affiliation/Single Entity Treatment of Hilltop International, Yelin Enterprise Co., Ltd., Ocean Beauty
Corporation and Ever Hope International Co., Ltd.,'' issued concurrently with this notice.
\5\ While Yelin Enterprise Co., Ltd., Ocean Beauty Corporation, and Ever Hope International Co., Ltd., are not producers of subject merchandise, we note that where companies are affiliated, and there exists a significant potential for manipulation of prices and/or export decisions, the Department has found it appropriate to treat those companies as a single entity. The Court of International Trade upheld the Department's decision to include export decisions in its analysis of whether there was a significant potential for manipulation. See Hontex Enterprises, Inc. v. United States, 248 F.
Supp. 2d 1323, 1343 (CIT 2003). In this case, not only are Yelin
Enterprise Co., Ltd., Ocean Beauty Corporation, and Ever Hope
International Co., Ltd. exporters of subject merchandise, but they are the sole intermediaries for all transactions of subject merchandise between Hilltop and its U.S. affiliate.
Preliminary Partial Rescission of Review
As discussed in the Background section above, several companies filed no shipment certifications indicating that they did not export subject merchandise to the United States during the POR. The
Department's practice concerning ``no-shipment'' respondents has been to rescind the administrative review if the respondent certifies that it had no shipments and the Department has confirmed through its examination of data from CBP that there were no shipments of subject merchandise during the POR. See Antidumping Duties; Countervailing
Duties, 62 FR 27296, 27393 (May 19, 1997).
On May 11, 2010, the Department sent an inquiry to CBP to determine whether CBP entry data is consistent with the statements of Allied
Pacific Aquatic Products Zhanjiang Co. Ltd. and Allied Pacific Food
(Dalian) Co., Ltd. See Memorandum to the File from Kabir Archuletta,
Analyst, Office 9, regarding ``U.S. Customs and Border Protection
Inquiries'' dated December 15, 2010 (``Customs Inquiries''). As stated above, Petitioner withdrew its request for an administrative review of
Allied Pacific Aquatic Products (Zhanjiang) Co., Ltd. and Allied
Pacific Food (Dalian) Co., Ltd., and on July 20, 2010, the Department published in the Federal Register a partial rescission notice with respect to these two companies. See Partial Rescission.
On May 17, 2010, the Department sent an inquiry to CBP to confirm the claims made by Yelin Frozen Seafood Co., Ltd. (d.b.a. Shantou Yelin
Quick-Freeze Marine Products Co., Ltd.); Yangjiang City Yelin Hoitat
Quick Frozen Seafood Co., Ltd.; Fuqing Yihua Aquatic Food Co., Ltd.; and Fuqing Minhua Trading Co., Ltd. See Customs Inquiries. Because CBP did not respond to the Department's inquiry \6\ and no party submitted comments, we are preliminarily rescinding the review with respect to
Shantou Yelin Frozen Seafood Co., Ltd. (d.b.a. Shantou Yelin Quick-
Freeze Marine Products Co., Ltd.); Yangjiang City Yelin Hoitat Quick
Frozen Seafood Co., Ltd.; Fuqing Yihua Aquatic Food Co., Ltd.; and
Fuqing Minhua Trading Co., Ltd. See, e.g., Certain Frozen Fish Fillets
From the Socialist Republic of Vietnam: Notice of Preliminary Results and Partial Rescission of the Third Antidumping Duty Administrative
Review, 72 FR 53527, 53530 (September 19, 2007), unchanged in Certain
Frozen Fish Fillets From the Socialist Republic of Vietnam: Final
Results of Antidumping Duty Administrative Review and Partial
Rescission, 73 FR 15479, 15480 (March 24, 2008).
\6\ CBP only responds to the Department's inquiry when there are records of shipments from the company in question. See 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); Certain Circular Welded Carbon
Steel Pipes and Tubes From Taiwan: Notice of Intent To Rescind
Administrative Review, 74 FR 3559, 3560 (January 21, 2009); and
Certain In-Shell Raw Pistachios From Iran: Rescission of Antidumping
Duty Administrative Review, 73 FR 9292, 9293 (February 20, 2008).
NME Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as an NME country. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign 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: 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 such treatment. Accordingly, we calculated NV in accordance with section 773(c) of the Act, which applies to NME countries.
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.
Accordingly, there is a rebuttable presumption that all companies within the PRC are subject to government control and, thus, should be assessed a single antidumping duty rate. See 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); 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. It is the
Department's policy to assign all exporters of the merchandise subject to review in NME countries a single rate unless an exporter can affirmatively demonstrate an absence of government control, both in law
(de jure) and in fact (de facto), with respect to exports. To establish whether a company is sufficiently independent to be entitled to a separate, company-specific rate, the Department analyzes each exporting entity in an NME country under the test established in Final
Determination of Sales at Less Than Fair Value: Sparklers From the
People's Republic of China, 56 FR 20588 (May 6, 1991), as amplified by
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).
However, if the Department determines that a company is wholly foreign- owned or located in a market economy, then a separate rate analysis is not necessary to determine whether it is independent from government control. See, e.g., Final Results of Antidumping Duty Administrative
Review: Petroleum Wax Candles From the People's Republic of China, 72
FR 52355, 52356 (September 13, 2007).
In this administrative review, Zhanjiang Regal (``Regal'') is the only company that submitted a separate rate certification. See Regal's
Separate Rate Certification dated May 10, 2010. Additionally, the
Department received completed responses to the Section A portion of the
NME antidumping questionnaire from Hilltop, which contained information pertaining to the company's eligibility for a separate rate. See
Hilltop's Section A response dated June 15, 2010. All other companies upon which the Department initiated an administrative review that have not been rescinded did not submit either a separate rate application or certification. Therefore, we have determined it appropriate to consider those companies that did not demonstrate their eligibility for separate rate status as part of the PRC-wide entity.
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Separate Rate Recipients
Wholly Foreign-Owned
Hilltop has reported that it is a Hong Kong based exporter of subject merchandise. See Hilltop's Section A response dated June 15, 2010, at 1. In its separate rate submission, Regal, the sole applicant for separate rate status in this administrative review, certified that it was 100 percent owned by foreign entity/entities located in
Singapore and Hong Kong. Therefore, there is no PRC ownership of
Hilltop or Regal, and because the Department has no evidence indicating that either of these companies are under the control of the PRC, a separate rate analysis is not necessary to determine whether it is independent from government control.\7\ Consequently, we preliminarily determine that Hilltop and Regal have met the criteria for a separate rate.
\7\ See Brake Rotors From the People's Republic of China:
Preliminary Results and Partial Rescission of the Fourth New Shipper
Review and Rescission of the Third Antidumping Duty Administrative
Review, 66 FR 1303, 1306 (January 8, 2001), unchanged in Brake
Rotors From the People's Republic of China: Final Results and
Partial Rescission of Fourth New Shipper Review and Rescission of
Third Antidumping Duty Administrative Review, 66 FR 27063 (May 16, 2001); Notice of Final Determination of Sales at Less Than Fair
Value: Creatine Monohydrate From the People's Republic of China, 64
FR 71104 (December 20, 1999).
In the Initiation, we instructed all companies requesting separate rate status in this administrative review to submit, as appropriate, either a separate rate status application or certification. See
Initiation. As discussed above, the Department initiated this administrative review with respect to 88 companies. On July 20, 2010, the Department published a partial rescission of this antidumping duty order with respect to Allied Pacific Aquatic Products Zhanjiang Co.
Ltd. and Allied Pacific Food (Dalian) Co., Ltd. See Partial Rescission.
Additionally, we are preliminarily rescinding this review with respect to four companies \8\ because we have preliminarily determined that they had no shipments of subject merchandise during the POR. Thus, including Hilltop and Regal, 82 companies remain subject to this review. While Hilltop and Regal provided documentation supporting their eligibility for a separate rate, the remaining companies under active review have not demonstrated their eligibility for a separate rate.
Therefore, the Department preliminarily determines that there were exports of merchandise under review from 80 PRC exporters that did not demonstrate their eligibility for separate rate status.\9\ As a result, the Department is treating these 80 PRC exporters as part of the PRC- wide entity, subject to the PRC-wide rate.
\8\ Those companies are: Shantou Yelin Frozen Seafood Co., Ltd., d.b.a. Shantou Yelin Quick-Freeze Marine Products Co., Ltd.;
Yangjiang City Yelin Hoitat Quick Frozen Seafood Co., Ltd.; Fuqing
Yihua Aquatic Food Co., Ltd.; and Fuqing Minhua Trading Co., Ltd.
\9\ Those companies are: Asian Seafoods (Zhanjiang) Co., Ltd.;
Beautiful Lighting Co., Ltd.; Beihai Qinguo Frozen Foods Co., Ltd.;
Capital Prospect; Century Distribution Systems (Shenz); Dafu Foods
Industry; Daishan Baofa Aquatic Product Co.; Elaite Group Co., Ltd.;
Everflow Ind. Supply; Flags Wins Trading Co., Ltd.; Fuchang Aquatic
Products; Fujian Haiding Global Foods; Fujian Provincial Meihua
Aquat.; Fuqing Maowang Seafood Development; Fuqing Xuhu Aquatic Food
Trdg.; Gallant Ocean (Nanhai), Ltd.; Geelong Sales; Guangdong
Jiahuang Foods; Guangdong Jinhang Foods Co., Ltd.; Guangdong Wanya
Foods Fty. Co., Ltd.; Hai Li Aquatic Co., Ltd.; Hainan Hailisheng
Food Co., Ltd.; Hainan Seaberry Seafoods; Hainan Siyuan Foods Co.,
Ltd.; Hainan Zhongyu Seafood Co., Ltd.; Huasheng Aquatic Pro.
Factory; Huian County Import & Export and Trading Co.; Innovative
Aluminum; Intecs Service; Jet Power International Ltd.; JetStar Co.;
Leizhou Yunyuan Aquatic Products Co., Ltd.; Liang Hsin Lighting
Shenzhen; Maoming Changxing Foods; Maoming Jiahui Foods Co., Ltd.;
New Peak Service; North Seafood Group Co.; Panasonic Mfg. Xiamen
Co.; Phoenix Intl.; Rizhao Smart Foods; Ruian Huasheng Aquatic
Products Fac.; Savvy Seafood Inc.; Sea Trade International Inc.;
Second Aquatic Food; Shandong Huashijia Foods; Shanghai Apa
International Trading; Shanghai Smiling Food Co., Ltd.; Shantou Jin
Cheng Food Co.; Shantou Longfen Foodstuff Co.; Shantou Longsheng
Aquatic Product Foodstuff Co., Ltd.; Shantou Red Garden Foodstuff
Co., Ltd. and/or Shantou Red Garden Food Processing Co., Ltd.;
Shantou Wanya Foods Fty. Co., Ltd. (Branch Factory); Shantou
Xinwanya Aquatic Product Ltd.; Shantou Yue Xiang Commercial Trading
Co., Ltd.; Shenzhen Pingyue Trading Co., Ltd.; SLK Hardware;
Sysgration; Thai Royal Frozen Food Zhanjiang Co., Ltd.; Tianjin
Dongjiang Food Co., Ltd.; Tongwei Hainan Aquatic Products Co., Ltd.;
Top One Intl.; Wenling Xingdi Aquatic Product; Yangcheng Seahorse
Foods; Yangjiang Wanshida Seafood Co., Ltd.; Zhangjiang Bo Bo Go
Ocean; Zhanjiang Evergreen Aquatic Products; Zhanjiang Fuchang
Aquatic Product Freezing Plant; Zhanjiang Go-harvest Aquatic
Products Co., Ltd.; Zhanjiang Haizhou Aquatic Product; Zhanjiang
Huibaoye Trading Co., Ltd.; Zhanjiang Jebshin Seafood; Zhanjiang
Jinguo Marine Foods Company Limited; Zhanjiang Longwei Aquatic
Product; Zhejiang Daishan Baofa Aquatic Products Co., Ltd.; Zhejiang
Industrial Group Co., Ltd.; Zhj Jinguo Marine Foods; Zhoushan Corp. for Intl. Economic and Technical Cooperation; Zhoushan Haohai
Aquatic Products; Zhoushan Putuo Huafa Sea Products Co., Ltd.; and
Zhoushan Qiangren Imp. & Exp.
Rate for Non-Selected Companies
In accordance with section 777A(c)(2)(B) of the Act, the Department employed a limited examination methodology, as it did not have the resources to examine all companies for which a review request was made.
As stated above, the Department selected Hilltop as the mandatory respondent in this review. In addition to the mandatory respondent, only Regal submitted timely information as requested by the Department and remains subject to review as a cooperative separate rate respondent.
We note that the statute and the Department's regulations do not directly address the establishment of a rate to be applied to individual companies not selected for examination where the Department limited its examination in an administrative review pursuant to section 777A(c)(2) of the Act. The Department's practice in cases involving limited selection based on exporters accounting for the largest volumes of trade has been to look to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance. Section 735(c)(5)(A) of the Act instructs 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.
Section 735(c)(5)(B) of the Act also provides that, where all margins are zero rates, de minimis rates, or rates based entirely on facts available, we may use ``any reasonable method'' for assigning the rate to non-selected respondents. In this instance, we have calculated a de minimis rate for the sole mandatory respondent, Hilltop.
In exercising this discretion to determine a non-examined rate, the
Department considers relevant the fact that section 735(c)(5) of the
Act: (a) Is explicitly applicable to the determination of an all-others rate in an investigation; and (b) articulates a preference that the
Department avoid zero, de minimis rates or rates based entirely on facts available when it determines the all others rate. The statute's statement that averaging of zero/de minimis margins and margins based entirely on facts available may be a reasonable method, and the
Statement of Administrative Action's (``SAA'') indication that such averaging may be the expected method, should be read in the context of an investigation. See SAA accompanying the Uruguay Round Agreements
Act, H.R. Doc. No. 103-316 at 872 (1994), reprinted in 1994
U.S.C.C.A.N. 4040, 4200. First, if there are only zero or de minimis margins determined in the investigation (and there is no other entity to which a facts available margin has been applied), the investigation would terminate and no order would be issued. Thus, the provision necessarily only applies to circumstances in which there are either both zero/de minimis and total facts available margins, or only total facts available margins. Second, when such rates are the only rates determined in an investigation, there is little information on which to rely to determine an appropriate all-others rate. In this
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context, therefore, the SAA's stated expected method is reasonable: The zero/de minimis and facts available margins may be the only or best data the Department has available to apply to non-selected companies.
We note that the Department has sought other reasonable means to assign separate-rate margins to non-reviewed companies in instances with calculated zero rates, de minimis rates, or rates based entirely on facts available for the mandatory respondents. See Certain Frozen
Warmwater Shrimp From the Socialist Republic of Vietnam: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 74 FR 47191, 47194 (September 15, 2009) (``Vietnam Shrimp AR3 Final'').
In Vietnam Shrimp AR3 Final, the Department assigned to those separate rate companies with no history of an individually calculated rate the margin calculated for cooperative separate rate respondents in the underlying investigation. However, for those separate rate respondents that had received a calculated rate in a prior segment, concurrent with or more recent than the calculated rate in the underlying investigation, the Department assigned that calculated rate as the company's separate rate in the review at hand.
Thus, we find that a reasonable method in the instant review is to assign to the non-reviewed company, Regal, its most recent calculated rate. Pursuant to this method, we are preliminarily assigning a rate of zero to Regal, its calculated rate in the previous administrative review. See 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) (``PRC Shrimp AR4''). In assigning this separate rate, the Department did not impute the actions of any other companies to the behavior of the non-individually examined company, but based this determination on record evidence that may be deemed reasonably reflective of the potential dumping margin for the non- individually examined company, Regal, in this administrative review.
PRC-Wide Entity
We have preliminarily determined that 80 companies did not demonstrate their eligibility for a separate rate and are properly considered part of the PRC-wide entity. As explained above in the
Separate Rates section, all companies within the PRC are considered to be subject to government control unless they are able to demonstrate an absence of government control with respect to their export activities.
Such companies are thus assigned a single antidumping duty rate distinct from the separate rate(s) determined for companies that are found to be independent of government control with respect to their export activities. We consider the influence that the government has been found to have over the economy to warrant determining a rate for the entity that is distinct from the rates found for companies that have provided sufficient evidence to establish that they operate freely with respect to their export activities. See 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, 53080 (September 8, 2006).
Therefore, we are assigning as the entity's current rate 112.81 percent, the only rate ever determined for the PRC-wide entity in this proceeding.
Surrogate Country
When the Department investigates imports from an NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer's FOPs, valued in a surrogate market economy country or countries considered to be appropriate by the
Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market economy countries that are at a level of economic development comparable to that of the NME country and significant producers of comparable merchandise. The sources of the surrogate factor values are discussed under the Normal
Value section below and in the Memorandum to the File through Catherine
Bertrand, Program Manager, Office 9, from Kabir Archuletta, Case
Analyst, Office 9, ``Fifth Administrative Review of Certain Frozen
Warmwater Shrimp From the People's Republic of China: Surrogate Factor
Valuations for the Preliminary Results,'' dated concurrently with this notice (``Surrogate Value Memo'').
As discussed in the NME Country Status section, above, the
Department considers the PRC to be an NME country. The Department determined that India, Indonesia, the Philippines, Thailand, Ukraine and Peru are countries comparable to the PRC in terms of economic development. See the Department's letter to all interested parties, dated July 20, 2010. 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. The Department finds India to be a reliable source for surrogate values because India is at a comparable level of economic development pursuant to 773(c)(4) of the Act, is a significant producer of comparable merchandise, and has publicly available and reliable data. Furthermore, the Department notes that
India has been the primary surrogate country in past segments. As noted above, Hilltop and domestic parties submitted surrogate value data for
FOPs for India, and Petitioner submitted surrogate value data for certain FOPs for Thailand on September 10, 2010. Given the above facts, the Department has selected India as the primary surrogate country for this review. See Surrogate Value Memo.
U.S. Price
Constructed Export Price
For Hilltop's sales, we based U.S. price on constructed export price (``CEP'') in accordance with section 772(b) of the Act, because sales were made on behalf of Hilltop by its U.S. affiliate to unaffiliated purchasers in the United States. For these sales, we based
CEP on prices to the first unaffiliated purchaser in the United States.
Where appropriate, we made deductions from the starting price (gross unit price) for foreign movement expenses, international movement expenses, U.S. movement expenses, and appropriate selling expenses, in accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act, we also deducted those selling expenses associated with economic activities occurring in the United States. We deducted, where appropriate, commissions, inventory carrying costs, credit expenses, and indirect selling expenses. Where foreign movement expenses, international movement expenses, or U.S. movement expenses were provided by Chinese service providers or paid for in Chinese renminbi, we valued these services using surrogate values. See Surrogate Value Memo for details regarding the surrogate values for movement expenses. For those expenses that were provided by a market-economy provider and paid for in market- economy currency, we used the reported expense. Due to the proprietary nature of certain adjustments to U.S. price, for a detailed description of all adjustments made to U.S. price for Hilltop, see Surrogate Value
Memo.
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Normal Value
Methodology
Section 773(c)(1)(B) of the Act provides that the Department shall determine the NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. The Department bases
NV on the FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV based on FOP data reported by the respondents for the POR. To calculate
NV, we multiplied the reported per-unit factor-consumption rates by publicly available surrogate values (except as discussed below).
In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. We added to each Indian import surrogate value a surrogate freight cost calculated from the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory, where appropriate. See Sigma Corp. v. United
States, 117 F.3d 1401, 1407-1408 (Fed. Cir. 1997). Where we could not obtain publicly available information contemporaneous to the POR with which to value FOPs, we adjusted the surrogate values, where appropriate, using the Indian Wholesale Price Index (``WPI'') as published in the International Monetary Fund's International Financial
Statistics. See Surrogate Value Memo.
The Department used Indian import statistics from Global Trade
Atlas to value the raw material and packing material inputs that
Hilltop used to produce subject merchandise during the POR, except where listed below.
To value shrimp larvae, the Department used the 2008-2009 annual report of Sharat Industries Ltd. We find this to be the best source on the record because it is contemporaneous with the POR and is based on actual market prices. See Surrogate Value Memo.
We valued electricity using the updated electricity price data for small, medium, and large industries, as published by the Central
Electricity Authority, an administrative body of the Government of
India, in its publication titled Electricity Tariff & Duty and Average
Rates of Electricity Supply in India, dated March 2008. These electricity rates represent actual country-wide, publicly-available information on tax-exclusive electricity rates charged to small, medium, and large industries in India. Because the resulting value is not contemporaneous with the POR, we inflated the rates using the WPI.
See Surrogate Value Memo.
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), found that the ``{regression-based{time} method for calculating wage rates {as stipulated by 19 CFR 351.408(c)(3){time} uses data not permitted by {the statutory requirements laid out in section 773 of the Act (i.e., 19 U.S.C. Sec. 1677b(c)){time} .'' The
Department is continuing to evaluate options for determining labor values in light of the recent CAFC decision. However, for these preliminary results, we have calculated an hourly wage rate to use in valuing the respondents' reported labor input by averaging industry- specific earnings and/or wages in countries that are economically comparable to the PRC and that are significant producers of comparable merchandise.
For the preliminary results of this administrative review, the
Department is valuing labor using a simple average industry-specific wage rate using earnings or wage data reported under Chapter 5B by the
International Labor Organization (``ILO''). To achieve an industry- specific labor value, we relied on industry-specific labor data from the countries we determined to be both economically comparable to the
PRC, and significant producers of comparable merchandise. A full description of the industry-specific wage rate calculation methodology is provided in the Surrogate Value Memo. The Department calculated a simple average industry-specific wage rate of $1.36 for these preliminary results. Specifically, for this review, the Department has calculated the wage rate using a simple average of the data provided to the ILO under Sub-Classification 15 of the ISIC-Revision 3 standard by countries determined to be both economically comparable to the PRC and significant producers of comparable merchandise. The Department finds the two-digit description under ISIC-Revision 3 (``Manufacture of Food
Products and Beverages'') to be the best available wage rate surrogate value on the record because it is specific and derived from industries that produce merchandise comparable to the subject merchandise.
Consequently, we averaged the ILO industry-specific wage rate data or earnings data available from the following countries found to be economically comparable to the PRC and significant producers of comparable merchandise: Ecuador, Egypt, Indonesia, Jordan, Peru, the
Philippines, Thailand, and Ukraine. For further information on the calculation of the wage rate, see Surrogate Value Memo.
To value water, the Department used data from the Maharashtra
Industrial Development Corporation (http://www.midcindia.org) since it includes a wide range of industrial water tariffs. This source provides industrial water rates within the Maharashtra province for ``inside industrial areas'' and ``outside industrial areas'' from April 2009 through December 2009. See Surrogate Value Memo.
We valued diesel using data from the International Energy Agency publication Energy Prices & Taxes, Quarterly Statistics (Fourth Quarter 2009), which uses 2008 data that is tax and duty exclusive. See
Surrogate Value Memo.
To value truck freight expenses, we used a per-unit average rate calculated from data on the Info Banc Web site: http:// www.infobanc.com/logistics/logtruck.htm. The logistics section of this
Web site contains inland freight truck rates between many large Indian cities.
We valued brokerage and handling 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 2010:
India, published by the World Bank.
To value factory overhead, sales, general and administrative expenses, and profit, we relied upon publicly available information in the 2008-2009 annual report of Falcon Marine Exports Ltd., an integrated Indian producer of subject merchandise. See Surrogate Value
Memo.
Where appropriate, 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.
Preliminary Results of the Review
The Department has determined that the following preliminary dumping margins exist for the period February 1, 2009, through January 31, 2010:
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Exporter
Margin
Hilltop International \10\................ 0.14% (de minimis)
Zhanjiang Regal Integrated Marine
0.00% (zero)
Resources Co., Ltd..
PRC-Wide Entity \11\...................... 112.81%
As stated above in the Rate for Non-Selected Companies section of this notice, Regal qualified for a separate rate in this review.
Moreover, as stated above in the Respondent Selection section of this notice, we limited this review by selecting the largest exporter and did not select Regal as a mandatory respondent. Therefore, we have preliminarily assigned to Regal a dumping margin based on its most recently calculated rate in PRC Shrimp AR4 because the mandatory respondent in this review received a de minimis rate and it is not the
Department's practice to assign separate rates based on rates that are de minimis or zero, or based entirely on facts available.
\10\ This rate shall also apply to the single entity consisting of Hilltop International, Yelin Enterprise Co., Ltd., Ocean Beauty
Corporation, and Ever Hope International Co., Ltd.
\11\ The PRC-wide entity includes the 80 companies under review that are referenced above in footnote 9, as well as any company that does not have a separate rate.
The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of this administrative review, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results. Interested parties must provide the Department with supporting documentation for the publicly available information to value each FOP. Additionally, in accordance with 19 CFR 351.301(c)(1), for the final results of this administrative review, interested parties may submit factual information to rebut, clarify, or correct factual information submitted by an interested party less than ten days before, on, or after, the applicable deadline for submission of such factual information. However, the Department notes that 19 CFR 351.301(c)(1) permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record. The Department generally cannot accept the submission of additional, previously absent-from-the-record alternative surrogate value information pursuant to 19 CFR 351.301(c)(1). See Glycine From the People's Republic of China: Final Results of Antidumping Duty
Administrative Review and Final Rescission, in Part, 72 FR 58809
(October 17, 2007) and accompanying Issues and Decision Memorandum at
Comment 2.
Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of review. See 19 CFR 351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments may be filed no later than five days after the deadline for filing case briefs. See 19 CFR 351.309(d). The Department urges interested parties to provide an executive summary of each argument contained within the case briefs and rebuttal briefs.
The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Assessment Rates
Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by these reviews. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. In accordance with 19 CFR 351.212(b)(1), for the mandatory respondent, we calculated an exporter/importer (or customer)-specific assessment rate for the merchandise subject to this review. Where the respondent has reported reliable entered values, we calculated importer (or customer)-specific ad valorem rates by aggregating the dumping margins calculated for all U.S. sales to each importer (or customer) and dividing this amount by the total entered value of the sales to each importer (or customer). See 19 CFR 351.212(b)(1). Where an importer (or customer)-specific ad valorem rate is greater than de minimis, we will apply the assessment rate to the entered value of the importer's/customer's entries during the POR. See 19 CFR 351.212(b)(1).
Where we do not have entered values for all U.S. sales, we calculated a per-unit assessment rate by aggregating the antidumping duties due for all U.S. sales to each importer (or customer) and dividing this amount by the total quantity sold to that importer (or customer). See 19 CFR 351.212(b)(1). To determine whether the duty assessment rates are de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer (or customer)- specific ad valorem ratios based on the estimated entered value. Where an importer (or customer)-specific ad valorem rate is zero or de minimis, we will instruct CBP to liquidate appropriate entries without regard to antidumping duties. See 19 CFR 351.106(c)(2).
For the companies receiving a separate rate that were not selected for individual review, we will assign an assessment rate based on the cash deposit rate calculated pursuant to section 735(c)(5)(B) of the
Act. Where the weighted average ad valorem rate is zero or de minimis, we will instruct CBP to liquidate appropriate entries without regard to antidumping duties. See 19 CFR 351.106(c)(2).
For those companies for which this review has been preliminarily rescinded,\12\ the Department intends to assess antidumping duties at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(2), if the review is rescinded for these companies in the final results.
\12\ These include Shantou Yelin Frozen Seafood Co., Ltd.
(d.b.a. Shantou Yelin Quick-Freeze Marine Products Co., Ltd.);
Yangjiang City Yelin Hoitat Quick Frozen Seafood Co., Ltd.; Fuqing
Yihua Aquatic Food Co., Ltd.; and Fuqing Minhua Trading Co., Ltd.
Cash Deposit Requirements
The following cash-deposit requirements will be effective upon publication of the final results for shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be that established in the final results of review
(except, if the rate is zero or de minimis, no cash deposit will be required); (2) for all other PRC exporters of subject merchandise which have not been found to be entitled to a separate rate and, thus, are a part of the PRC-wide entity, the cash-deposit rate will be the PRC-wide rate established in the final results of review; and (3) for all non-
PRC exporters of subject merchandise, the cash-deposit rate will be the rate applicable to the PRC supplier of that exporter. These deposit requirements shall remain in effect until further notice.
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Notification of Interested Parties
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 POR. 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 this notice are in accordance with sections 751(a)(1) and 777(i) of the Act, and 19 CFR 351.213 and 351.221(b)(4).
Dated: February 7, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
FR Doc. 2011-3246 Filed 2-11-11; 8:45 am
BILLING CODE 3510-DS-P
