Freshwater Crawfish Tail Meat from the People's Republic of China: Notice of Preliminary Results of Antidumping Duty Administrative Review and Intent to Rescind, in Part

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

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) in response to requests from the Crawfish Processors Alliance and its members (together with the Louisiana Department of Agriculture & Forestry, and Bob Odom, commissioner), and the Domestic Parties (collectively, the Domestic Interested Parties) and from exporters Hubei Qianjiang Houhu Cold & Processing Factory (Hubei Houhu), Shouzhou Huaxiang Foodstuffs Co., Ltd. (Shouzhou Huaxiang), Qingdao Jinyongxiang Aquatic Foods Co., Ltd. (Qingdao JYX) and North Supreme Seafood. The period of review (POR) is from September 1, 2002 through August 31, 2003.

We preliminarily determine that sales have been made below normal value (NV). The preliminary results are listed below in the section titled “Preliminary Results of Review.” If these preliminary results are adopted in our final results, we will instruct U.S. Customs and Border Protection (CBP) to assess the ad valorem margins against the entered value of each entry of the subject merchandise during the POR. Interested parties are invited to comment on these preliminary results. See the “Preliminary Results of Review” section of this notice.

EFFECTIVE DATE:

June 14, 2004.

FOR FURTHER INFORMATION CONTACT:

Scot Fullerton or Matthew Renkey, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1386 or (202) 482-2312, respectively.

SUPPLEMENTARY INFORMATION:

Background

The Department published in the Federal Register an antidumping duty order on freshwater crawfish tail meat from the PRC on September 15, 1997. 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). Based on timely requests from various interested parties, the Department initiated an administrative review of the antidumping duty order on freshwater crawfish tail meat from the PRC for the period of September 1, 2002 through August 31, 2003 covering 30 companies. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 68 FR 60910 (October 24, 2003) (Notice of Initiation).

On May 13, 2004, based on the Domestic Interested Parties' timely withdrawal of their requests for review of a number of companies, as well as respondent North Supreme Seafood's withdrawal of its own request for review, we rescinded this administrative review with respect to 25 companies. See Freshwater Crawfish Tailmeat from the People's Republic of China: Notice of Rescission, in Part, of Antidumping Duty Administrative Review for the Period September 1, 2002 through August 31, 2003, 69 FR 29267 (May 21, 2004). This administrative review now covers the following companies: Hubei Houhu, Shouzhou Huaxiang, Qingdao JYX, Shanghai Ocean Flavor International Trading Co., Ltd. (Shanghai Ocean Flavor), and Nantong Shengfa Frozen Food Co., Ltd. (Nantong Shengfa). Due to the unexpected emergency closure of the main Commerce building on Tuesday, June 1, 2004, the Department has tolled the deadline for these preliminary results by one day to June 2, 2004.

Scope of the Antidumping Duty Order

The product covered by this 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 (HTS) under item numbers 1605.40.10.10 and 1605.40.10.90, which are the new HTS numbers for prepared foodstuffs, indicating peeled crawfish tail meat and other, as introduced by the CBP in 2000, and HTS numbers 0306.19.00.10 and 0306.29.00.00, which are reserved for fish and crustaceans in general. The HTS subheadings are provided for convenience and Customs purposes only. The written description of the scope of this order is dispositive.

Intent to Rescind 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 8, 2003, Shanghai Ocean Flavor informed the Department that, other than the sales which are currently subject to its new shipper review (NSR) for the period September 1, 2002 through February 28, 2003, it did not export, or produce for export, to the United States, nor did it produce and sell subject merchandise to the United States through other companies during the POR. The Department reviewed data on entries under the order during the period of review from CBP, and found no U.S. entries, exports, or sales of subject merchandise by Shanghai Ocean Flavor during the POR, other than those sales covered by its NSR. Therefore, absent the submission of any evidence that Shanghai Ocean Flavor had other U.S. entries, exports, or sales of subject merchandise during the POR, the Department intends to rescind the administrative review with respect to this company, in accordance with 19 CFR 351.213(d)(3).

Application of Facts Available

1. Nantong Shengfa

As further discussed below, pursuant to sections 776(a)(2)(A) and (B) and section 776(b) of the Tariff Act of 1930, as amended (the Act), the Department determines that the application of total AFA is warranted for respondent Nantong Shengfa. Sections 776(a)(2)(A) and 776(a)(2)(B) of the Act provide for the use of facts 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. Nantong Shengfa failed to file its response to the Department's quantity and value questionnaire in a timely manner. See the Department's letter to Nantong Shengfa dated May 6, 2004.

The Department sent a quantity and value questionnaire to Nantong Shengfa on November 28, 2003, via international express mail, with a response due by December 16, 2003. In the cover letter for the quantity and value questionnaire, we stated “Please be advised that if you are non-cooperative (e.g., non-responsive) to the Department's request for information, the antidumping duty margin applied by the Department to your company may be based on adverse facts available.” We also stated in the cover letter “If you are unable to respond to these questions within the specified time limits or are unable to provide the information in the form requested, please contact Department officials immediately.” We confirmed through the delivery service that Nantong Shengfa had received our correspondence on December 1, 2003. The Department did not receive any correspondence from Nantong Shengfa indicating that it needed additional time to respond to the quantity and value questionnaire, or that it was having difficulty responding.

On March 18, 2004, more than three months after the due date, Nantong Shengfa submitted a response to our quantity and value letter. Nantong Shengfa stated that while it received the quantity and value in December 2003, it sent the document to a translation service since none of its staff reads English. Nantong Shengfa stated that it received the translation in March 2004, and then contacted counsel.

Nantong Shengfa failed to provide information explicitly requested by the Department in a timely manner; therefore, we must resort to the facts otherwise available. As noted in the Department's May 6, 2004 letter to Nantong Shengfa, the company has participated in prior antidumping duty reviews, so it was familiar with the Department's requirements for filing documents in a timely manner. Section 782(c)(1) of the Act does not apply because Nantong Shengfa did not indicate that it was unable to submit the information required by the Department.

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 the respondent, if it determines that a party has failed to cooperate to the best of its ability. The Department finds that, by not providing a timely response to the quantity and value questionnaire issued by the Department, Nantong Shengfa failed to cooperate to the best of its ability.

Therefore, in selecting from the facts available, the Department determines that an adverse inference is warranted. In accordance with sections 776(a)(2)(A) and (B), as well as section 776(b) of the Act, we are applying total AFA to Nantong Shengfa. As part of this AFA determination, we find that Nantong Shengfa did not demonstrate its eligibility for a separate rate, and have preliminarily determined that it is subject to the PRC-wide rate. As noted above, as AFA, and as the PRC-wide rate, the Department is assigning the rate of 223.01 percent, which is the highest rate determined in the current or any previous segment of this proceeding. See 1999-2000 Final Results. As discussed below, this rate has been corroborated.

2. Hubei Houhu, Shouzhou Huaxiang and Qingdao JYX

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 adverse facts available (AFA) is warranted for respondents Hubei Houhu, Shouzhou Huaxiang, and Qingdao JYX. 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.

On September 30, 2003, the Department received requests for review from Hubei Houhu, Shouzhou Huaxiang, and Qingdao JYX. On January 2, 2004, the Department sent each of the three companies a full questionnaire, including sections A, C, and D, which had a due date of February 9, 2004. In a letter dated February 6, 2004, counsel for Hubei Houhu and Shouzhou Huaxiang stated that it was withdrawing its representation of those two companies, but that Qingdao JYX intended to participate fully in this review. Neither Hubei Houhu nor Shouzhou Huaxiang had submitted a response to the Department's initial Section A, C and D Questionnaire. On February 20, 2004, we sent letters directly to Hubei Houhu and Shouzhou Huaxiang via both fax and international express mail, inquiring as to whether those companies still intended to participate in the review. We confirmed through the delivery service that both companies received our February 20, 2004 letter. We did not receive a response to our letter from either company. Thus, because Hubei Houhu and Shouzhou Huaxiang failed to respond to the Department's initial Section A, C and D 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.

Qingdao JYX submitted its response to the Department's initial Section A, C and D Questionnaire on February 17, 2004, after having been granted an extension from the original due date of February 9, 2004. On March 14, 2004, the Department issued a supplemental questionnaire to Qingdao JYX, with a response due on March 30, 2004. Qingdao JYX twice requested extensions for the supplemental response due date, which were granted. On April 13, 2004, the date on which its supplemental response was due, Qingdao JYX informed the Department, via letter, that it did not intend to respond to the Department's supplemental questionnaire or participate in verification, and was, thus, terminating its participation in this review. Because Qingdao JYX failed to respond to the Department's 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.

These three companies failed to provide information explicitly requested by the Department; therefore, we must resort to the facts otherwise available. Section 782(c)(1) of the Act does not apply because none of the companies indicated that they were unable to submit the information required by the Department.

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. As noted above, Hubei Houhu and Shouzhou Huaxiang failed to provide any response to the Department's initial questionnaire, and Qingdao JYX failed to respond to the Department's supplemental questionnaire. Because the Department concludes that these three companies failed to cooperate to the best of their ability, in applying the facts otherwise available, the Department finds that an adverse inference is warranted, pursuant to section 776(b) of the Act. In the absence of verifiable information establishing these companies' eligibility for a separate rate, we have preliminarily determined that they are subject to the PRC-wide rate. As AFA, and as the PRC-wide rate, the Department is assigning the rate of 223.01 percent, which is the highest rate determined in the current or any previous 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) (1999-2000 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 1999-2000 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 1999-2000 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 1999-2000 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).

Separate Rates

As discussed above in the Facts Available section, only one company, Qingdao JYX, provided a response to the Department's initial Section A, C and D Questionnaire. Qingdao JYX subsequently stated that it would not respond to the Department's supplemental questionnaire and that it would not participate in verification. In the absence of verifiable information from any company in this review establishing its eligibility for a separate rate, we have determined that no company subject to this administrative review is eligible to considered for a separate rate.

Preliminary Results of Review

We preliminarily determine that the following dumping margins exist:

Cash Deposit Requirements

The following deposit rates will be effective upon publication of the final results of 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 publication date, as provided for 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.

Assessment Rates

Upon completion of this administrative review, the Department shall determine, and the U.S. Customs Service shall assess, antidumping duties on all appropriate entries. We will direct CBP to assess the resulting 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.

Comments and Hearing

Pursuant to 19 CFR 351.224(b), the Department will disclose to parties to the proceeding any calculations performed in connection with these preliminary results within five days after the date of publication of this notice. Pursuant to 19 CFR 351.309, interested parties may submit written comments in response to these preliminary results. Normally, case briefs are to be submitted within 30 days after the date of publication of this notice, and rebuttal briefs, limited to arguments raised in case briefs, are to be submitted no later than five days after the time limit for filing case briefs. Parties who submit arguments in this proceeding are requested to submit with the argument: (1) a statement of the issues, and (2) a brief summary of the argument. Case and rebuttal briefs must be served on interested parties in accordance with 19 CFR 351.303(f).

Also, pursuant to 19 CFR 351.310, within 30 days of the date of publication of this notice, interested parties may request a public hearing on arguments to be raised in the case and rebuttal briefs. Unless the Secretary specifies otherwise, the hearing, if requested, will be held two days after the date for submission of rebuttal briefs. Parties will be notified of the time and location. The Department will publish the final results of this administrative review, including the results of its analysis of issues raised in any case or rebuttal brief, not later than 120 days after publication of these preliminary results, unless extended.

Notification to Importers

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

This administrative review and this notice are published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213 and 351.221.