Freshwater Crawfish Tail Meat From the People's Republic of China; Notice of Final Results of Antidumping Duty Administrative Review and Final Rescission of Review, in Part

AGENCY:

Import Administration, International Trade Administration, U.S. Department of Commerce.

SUMMARY:

On October 8, 2003, the Department of Commerce (the Department) published the preliminary results of its administrative review of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China (PRC). See Freshwater Crawfish Tail Meat from the People's Republic of China: Notice of Preliminary Results of Antidumping Duty Administrative Review; Final Rescission, in Part; and Intent to Rescind, in Part, 68 FR 58064 (Preliminary Results). The administrative review covers the period September 1, 2001, through August 31, 2002.

Based on our analysis of the comments received, we have made changes to our analysis. Therefore, the final results differ from the Preliminary Results. The final dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.”

EFFECTIVE DATE:

February 13, 2004.

FOR FURTHER INFORMATION CONTACT:

Doug Campau, Scot Fullerton or Matthew Renkey, Office of Antidumping/Countervailing Duty Enforcement VII, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; telephone (202) 482-1395, (202) 482-1386 or (202) 482-2312, respectively.

Background

On October 8, 2003, the Department published the preliminary results of its administrative review of the antidumping duty order on freshwater crawfish tail meat from the PRC. See Preliminary Results. The administrative review covers the period September 1, 2001, through August 31, 2002. The review covers the following companies: Shanghai Taoen International Trading Co., Ltd. (Shanghai Taoen); Weishan Fukang Foodstuffs Co., Ltd. (Weishan Fukang); Shouzhou Huaxiang Foodstuffs Co., Ltd. (Shouzhou Huaxiang); Qingdao Rirong Foodstuff Co., Ltd., aka Qingdao Rirong Foodstuffs (Qingdao Rirong); and Yangzhou Lakebest Foods Co., Ltd. (Yangzhou Lakebest).

Since the publication of the Preliminary Results, the following events have occurred. On November 7, 2003, we received timely filed case briefs from Shouzhou Huaxiang and from the Crawfish Processors Alliance, its members (together with the Louisiana Department of Agriculture and Forestry, Bob Odom, Commissioner), and the Domestic Parties (collectively, the Domestic Interested Parties). On November 12, 2003, we received a timely filed rebuttal brief from the Domestic Interested Parties. Based on new information obtained by the Department from U.S. Customs and Border Protection (CBP) concerning Shanghai Taoen, the Department issued a letter of inquiry to Shanghai Taoen on December 5, 2003. Shanghai Taoen responded to the Department's letter on December 16, 2003. We provided interested parties with the opportunity to comment on Shanghai Taoen's response. The Domestic Interested Parties submitted comments on Shanghai Taoen's response on January 5, 2004. Shanghai Taoen did not file rebuttal comments.

Final Rescission of Administrative Review, in Part

The Department's regulations provide that the Department “may rescind an administrative review, in whole or only with respect to a particular exporter or producer, if the Secretary concludes that, during the period covered by the review, there were no entries, exports, or sales of the subject merchandise, as the case may be.” See 19 CFR 351.213(d)(3). On December 11, 2002, Nantong Shengfa Frozen Food Co., Ltd. (Nantong Shengfa) informed the Department that it did not export or produce for export to the United States, nor did it produce and sell subject merchandise through others to the United States, during the period of review (POR). In addition, on January 2, 2003, Weishan Zhenyu Foodstuff Co., Ltd. (Weishan Zhenyu) informed the Department that it did not have any direct or indirect export sales of the subject merchandise to the United States during the POR. The Department reviewed data on entries under the order during the POR from CBP, and found no reportable U.S. entries, exports, or sales of subject merchandise by Nantong Shengfa or Weishan Zhenyu during the POR. In the Preliminary Results, we stated that no further evidence or information was submitted that indicated that the companies had reportable U.S. entries, exports, or sales of subject merchandise. We received no comments from any parties on our preliminary intent to rescind. The Department is therefore rescinding the administrative review with respect to these companies, in accordance with 19 CFR 351.213(d)(3).

Scope of the Antidumping Duty Order

The product covered by the antidumping duty 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, 1605.40.10.90, 0306.19.00.10 and 0306.29.00.00. The HTSUS subheadings are provided for convenience and CBP purposes only. The written description of the scope of this order is dispositive.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs as well as the comments filed by parties, as requested by the Department on Shanghai Taoen's December 16, 2003 submission, are addressed in the Issues and Decision Memorandum from Joseph A. Spetrini, Deputy Assistant Secretary for Import Administration, Group III, to James J. Jochum, Assistant Secretary for Import Administration: Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review of Freshwater Crawfish Tail Meat from the People's Republic of China: September 1, 2001 through August 31, 2002, dated February 5, 2004 (Decision Memo), which is hereby adopted by this notice.

A list of the issues which parties have raised and to which we have responded, all of which are in the Decision Memo, is attached to this notice as an appendix. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room B-099 of the main Commerce Building. In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov. The paper copy and electronic version of the Decision Memo are identical in content.

Changes Since the Preliminary Results

Based on our analysis of information obtained after the Preliminary Results, and of briefs and rebuttal briefs submitted by interested parties, we have changed our analysis for Shanghai Taoen. For these final results, we are basing the margin for Shanghai Taoen on adverse facts available (AFA). For a discussion of this change, refer to the Shanghai Taoen section of the Application of Facts Available section, below.

Application of Facts Available

• Yangzhou Lakebest, Weishan Fukang, and Qingdao Rirong

The Department received no comments on its preliminary determination to apply adverse facts available to Yangzhou Lakebest, Weishan Fukang, and Qingdao Rirong. Therefore, we have not altered our decision to apply total AFA to these companies for these final results, in accordance with sections 776(a)(2)(A) and (B), as well as section 776(b) of the Tariff Act of 1930, as amended (the Act). For a complete discussion of the Department's decision to apply total AFA, see Preliminary Results. Furthermore, these entities did not establish that they are eligible for separate rates. See Final Determination of Sales at Less than Fair Value: Certain Helical Spring Lock Washers from China, 58 FR 48833 (September 20, 1993); and Final Determination of Sales at Less than Fair Value: Certain Compact Ductile Iron Waterworks Fittings and Accessories Thereof from the People's Republic of China, 58 FR 37908 (July 14, 1993). As AFA, the Department is assigning these companies the PRC-wide rate of 223.01 percent'the highest rate determined in any segment of this proceeding. See Freshwater Crawfish Tail Meat from the People's Republic of China; Notice of Final Results of Antidumping Duty Administrative Review, and Final Partial Rescission of Antidumping Duty Administrative Review, 67 FR 19546 (April 22, 2002) (99-00 Final Results). As discussed below, this rate has been corroborated.

• Shanghai Taoen

As further discussed below, pursuant to sections 776(a)(2)(A) and (B) and section 776(b) of the Act, the Department determines that the application of total AFA is warranted for respondent Shanghai Taoen. Sections 776(a)(2)(A) and 776(a)(2)(B) of the Act provide for the use of facts otherwise available when an interested party withholds information that has been requested by the Department, or when an interested party fails to provide the information requested in a timely manner and in the form required.

For purposes of the Preliminary Results, the Department relied on Shanghai Taoen's questionnaire responses. Subsequent to the Preliminary Results, we obtained information and documentation from CBP which called into question the accuracy and completeness of responses submitted by Shanghai Taoen. We asked Shanghai Taoen to explain the inconsistency in its response and to demonstrate, with documentation, that the responses it submitted were accurate and complete. Based on our analysis of Shanghai Taoen's explanation regarding the documentation obtained by the Department from CBP, we find that Shanghai Taoen's explanation demonstrates that its questionnaire responses to the Department, and the responses to questions asked at verification of both Shanghai Taoen and and its reported producer, Lianyungang Yuzhu Aquatic Products Processing Co., Ltd. (Yuzhu), were inaccurate and incomplete. As such, we find that, pursuant to sections 776(a)(2)(A) and (B) of the Tariff Act of 1930, as amended (the Act), Shanghai Taoen withheld information and failed to submit information by the deadlines required. The information withheld by Shanghai Taoen was significant, and fundamental to the Department's calculation of an accurate dumping margin. As Shanghai Taoen withheld this information, we find that the application of facts available is warranted for Shanghai Taoen.

Section 776(b) of the Act provides that, in selecting from among the facts available, the Department may use an inference that is adverse to the interests of a respondent, if it determines that a party has failed to cooperate to the best of its ability to comply with the Department's request for information. See, e.g., Notice of Final Determination of Sales at Less than Fair Value and Final Negative Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from Brazil, 67 FR 55792, 55794-96 (August 30, 2002). The Department finds that Shanghai Taoen has failed to cooperate to the best of its ability because it could have complied with the Department's request to respond accurately to the Department's initial questionnaire, requests for supplemental information, and questions asked at verification. Moreover, at no point in the administrative review, prior to or during verification, did Shanghai Taoen notify the Department of the existence of any inaccuracies in information it reported to the Department, or seek guidance on the applicable reporting requirements, as contemplated in section 782(c)(1) of the Act. Furthermore, Shanghai Taoen and its producer, Yuzhu, were the only parties that had access to this information and, therefore, the only parties that could have complied with the Department's request for information. In sum, despite the Department's detailed and very specific questionnaires and questions asked at verification, Shanghai Taoen gave insufficient attention to its statutory duty to reply accurately to requests for factual information. For all of the aforementioned reasons, the Department finds that Shanghai Taoen failed to cooperate to the best of its ability.

As AFA, the Department is assigning the rate of 223.01 percent—the highest rate determined in the current or any previous segment of this proceeding. See 99-00 Final Results. As discussed further below, this rate has been corroborated. As most of the information obtained by the Department from CBP, and subsequent submissions by Shanghai Taoen and the Domestic Interested Parties, consists of business proprietary information, a full analysis of the Department's AFA determination is contained in the Department's Treatment of Shanghai Taoen International Trading Co., Ltd. in the Final Results of the Administrative Review for the Period 9/1/01-8/31/02, dated February 5, 2004. (Shanghai Taoen AFA Memo).

• Shouzhou Huaxiang

As further discussed below, pursuant to sections 776(a)(2)(A), (B) and (D) and section 776(b) of the Act, the Department determines that the application of total adverse facts available is warranted for respondent Shouzhou Huaxiang. Sections 776(a)(2)(A) and 776(a)(2)(B) of the Act provide for the use of facts otherwise available when an interested party withholds information that has been requested by the Department, or when an interested party fails to provide the information requested in a timely manner and in the form required. Section 776(a)(2)(D) of the Act warrants the use of facts otherwise available in reaching a determination when information is provided, but cannot be verified. On August 6, 2003, Shouzhou Huaxiang requested an extension of the August 8, 2003 deadline for responding to the second supplemental questionnaire. See Letter from Shouzhou Huaxiang, at 1 (August 6, 2003). The Department granted a 12-day extension, to August 20, 2003. See Letter to Shouzhou Huaxiang, at 1 (August 8, 2003). However, Shouzhou Huaxiang never submitted its response. Because Shouzhou Huaxiang failed to respond to the Department's second supplemental questionnaire, pursuant to sections 776(a)(2)(A) and (B) of the Act, the Department determines that the application of facts otherwise available is warranted.

In addition, the Department finds that the application of facts available is warranted pursuant to section 776(a)(2)(D) of the Act because Shouzhou Huaxiang's questionnaire responses could not be verified. On July 30, 2003, Shouzhou Huaxiang submitted a letter to the Department in which it requested cancellation of verification due to flooding at Shouzhou Huaxiang (located in Shouxian Town, Anhui Province), and one of its two producers, Yancheng Yaou Seafoods Co. Ltd. (Yancheng Yaou) (located in Dafeng City, Jiangsu Province). See Memorandum to the File: Shouzhou Huaxiang Foodstuffs Co., Ltd.'s Refusal to Allow Verification, (September 29, 2003) (Shouzhou Huaxiang Memo), at 1. On August 15, 2003, the Department left messages with counsel for Shouzhou Huaxiang to convey the Department's continued willingness to try to work with Shouzhou Huaxiang, and to offer to consider any alternative proposals for conducting verification (such as by shuffling the order in which each of the three entities—Shouzhou Huaxiang, and its two producers—would be visited). Id. On August 18, 2003, Shouzhou Huaxiang informed the Department that “due [sic] the continuing impact of the recent flooding of the Huaihe river, Shouzhou Huaxiang, the company [sic] will not be able to participate in the verification scheduled to begin on August 29, 2003.” See Letter from Shouzhou Huaxiang, at 1 (August 18, 2003).

The Department conducted independent research, and asked U.S. Embassy staff in Beijing to inquire with hotels in the vicinity of Shouzhou Huaxiang, and its producer Yancheng Yaou, to determine the extent of the flooding. See Shouzhou Huaxiang Memo. The information obtained via these inquiries and research efforts indicated that, while there had been some flooding near Shouzhou Huaxiang's headquarters in July, there was no longer an obstruction of roads, and that there was no flooding in the vicinity of Yancheng Yaou. Id. at 2. Also on August 18, 2003, prior to the extended deadline for responding to the second supplemental questionnaire, the Department again contacted counsel for Shouzhou Huaxiang, to convey the Department's continued willingness to try to work with Shouzhou Huaxiang, and to offer to consider any alternative proposals for conducting verification. The Department also asked whether Shouzhou Huaxiang's producers, Yancheng Yaou and Hubei Qianjiang Houhu Frozen & Processing Factory (Hubei Houhu), could still be verified. Id. at 3. Counsel for Shouzhou Huaxiang indicated that they would discuss the matter with Shouzhou Huaxiang, and then get back to the Department on August 19, 2003. Id.

On August 19, and again on August 20, 2003, the Department again contacted counsel for Shouzhou Huaxiang to find out whether they had received any feedback from Shouzhou Huaxiang concerning the Department's offer to consider any alternative proposals for conducting verification, or whether Shouzhou Huaxiang's producers, Yancheng Yaou and Hubei Houhu, would agree to be verified. Id.

Shouzhou Huaxiang never offered any alternative proposals for conducting verification, and never changed its position that it would not participate in verification. This decision prevented the verification of information placed on the record. Thus, the information submitted by Shouzhou Huaxiang cannot serve as a reliable basis for reaching a determination since verification provides the Department with an opportunity to check the accuracy of the information submitted by the respondent. Because Shouzhou Huaxiang did not respond to the Department's second supplemental questionnaire, and did not allow verification, sections 782(d) and (e) of the Act are not applicable.

Section 776(b) of the Act provides that, in selecting from among the facts available, the Department may use an inference that is adverse to the interests of a respondent, if it determines that a party has failed to cooperate to the best of its ability. See, e.g., Notice of Final Determination of Sales at Less than Fair Value and Final Negative Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from Brazil, 67 FR 55792, 55794-96 (August 30, 2002). To examine whether the respondent cooperated by acting to the best of its ability under section 776(b) of the Act, the Department considers, inter alia, the accuracy and completeness of submitted information and whether the respondent has hindered the calculation of accurate dumping margins. See e.g., Notice of Final Determination of Sales at Less than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon Quality Steel Products from Brazil, 65 FR 5554, 5567 (February 4, 2000); and Notice of Final Determination of Sales at Less than Fair Value: Polyvinyl Alcohol from the Republic of Korea, 68 FR 47540-47541 (August 11, 2003). Without verification, the Department could not establish the accuracy and completeness of the submitted information. Therefore, Shouzhou Huaxiang has hindered the calculation of an accurate dumping margin and impeded the proceeding within the meaning of section 776(a)(2)(C) of the Act.

Moreover, the Department finds that Shouzhou Huaxiang has failed to cooperate to the best of its ability because evidence on the record of this review indicates that it could have complied with the Department's request for supplemental information and could have participated in verification. As discussed above, information on the record indicates that the flooding referred to by Shouzhou Huaxiang was not so severe that verification could not proceed by August 29, 2003, or that the company could not respond to the Department's second supplemental questionnaire by the extended August 20, 2003 deadline. See Shouzhou Huaxiang Memo at 3-4. see also Memorandum to the File, dated January 13, 2004.

Furthermore, Shouzhou Huaxiang's main business is selling crawfish tail meat, and during the period of review, it dealt with a limited number of crawfish tail meat processors. With the limited number of processors, Shouzhou Huaxiang had a relatively small quantity of information to analyze and/or report to the Department. As such, Shouzhou Huaxiang was in a position to respond to the Department's supplemental questionnaire. The Department's determination that Shouzhou Huaxiang failed to act to the best of its ability is further supported by Shouzhou Huaxiang's failure to even propose any alternatives to the Department's request for verification.

Because the Department concludes that Shouzhou Huaxiang failed to cooperate to the best of its ability, in applying the facts otherwise available, the Department finds that an adverse inference is warranted, pursuant to section 776(b) of the Act. Since Shouzhou Huaxiang did not allow verification of its questionnaire responses, the Department was unable to examine Shouzhou Huaxiang's eligibility for a separate rate. In the absence of verifiable information establishing Shouzhou Huaxiang's eligibility for a separate rate, we have determined that it is subject to the PRC-wide rate. As AFA, and as the PRC-wide rate, the Department is assigning the rate of 223.01 percent—the highest rate determined in the current or any previous segment of this proceeding. See 99-00 Final Results. As discussed further below, this rate has been corroborated.

Corroboration of Secondary Information Used as AFA

Section 776(c) of the Act requires that the Department corroborate, to the extent practicable, a figure which it applies as facts available. To be considered corroborated, information must be found to be both reliable and relevant.We are applying as AFA the highest rate from any segment of this administrative proceeding, which is a rate calculated in the 1999-2000 review. See 99-00 Final Results. Unlike other types of information, such as input costs or selling expenses, there are no independent sources for calculated dumping margins. The only sources for calculated margins are administrative determinations. The information upon which the AFA rate is based in the current review was calculated during the 1999-2000 administrative review. See 99-00 Final Results. Furthermore, the AFA rate we are applying for the current review was corroborated in reviews subsequent to the 1999-2000 review to the extent that the Department referred to the history of corroboration and found that the Department received no information that warranted revisiting the issue. See, e.g., Freshwater Crawfish Tail Meat from the People's Republic of China; Notice of Final Results of Antidumping Duty Administrative Review, 68 FR 19504, 19508 (April 21, 2003). No information has been presented in the current review that calls into question the reliability of this information. Thus, the Department finds that the information is reliable.

With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in Fresh Cut Flowers from Mexico: Final Results of Antidumping Administrative Review, 61 FR 6812 (February 22, 1996), the Department disregarded the highest margin in that case as adverse best information available (the predecessor to facts available) because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin. Similarly, the Department does not apply a margin that has been discredited. See D & L Supply Co. v. United States, 113 F.3d 1220, 1221 (Fed. Cir. 1997) (the Department will not use a margin that has been judicially invalidated). The information used in calculating this margin was based on sales and production data of a respondent in a prior review, together with the most appropriate surrogate value information available to the Department, chosen from submissions by the parties in that review, as well as gathered by the Department itself. Furthermore, the calculation of this margin was subject to comment from interested parties in the proceeding. See 99-00 Final Results. Moreover, as there is no information on the record of this review that demonstrates that this rate is not appropriately used as AFA, we determine that this rate has relevance. As the rate is both reliable and relevant, we determine that it has probative value. Accordingly, we determine that the highest rate from any segment of this administrative proceeding (i.e., the calculated rate of 223.01 percent, which is the current PRC-wide rate) is in accord with section 776(c)'s requirement that secondary information be corroborated (i.e., that it have probative value).

Final Results of Review

For these final results we determine that the following dumping margin exists:

Cash Deposit Requirements

The following deposit requirements will be effective upon publication of these final results for this administrative review for all shipments of freshwater crawfish tail meat from the PRC entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) For previously-reviewed PRC and non-PRC exporters with separate rates, the cash deposit rate will be the company-specific rate established for the most recent period; (2) for PRC exporters which do not have a separate rate, including the exporters named in the footnote above, the cash deposit rate will be the PRC-wide rate, 223.01 percent; and (3) for all other non-PRC exporters of the subject merchandise, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit requirements shall remain in effect until publication of the final results of the next administrative review.

Assessment of Antidumping Duties

The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. For assessment purposes, we will direct CBP to assess the ad valorem rates against the entered value of each entry of the subject merchandise during the POR. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of review.

Notification to Importers

This notice serves as a final reminder to importers of their responsibility under section 351.402(f) of the Department's regulations 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 subsequent assessment of double antidumping duties.

This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with section 351.305(a)(3) of the Department's regulations. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

This administrative review and notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Appendix

List of Issues

Comment 1: Valuation of the Raw Crawfish Input.

Comment 2: Application of Adverse Facts Available to Shanghai Taoen International Trading Co., Ltd.

Comment 3: Application of Adverse Facts Available to Shouzhou Huaxiang Foodstuffs Co., Ltd.