Notice of Preliminary Results of Antidumping Duty New Shipper Review: Freshwater Crawfish Tail Meat from the People's Republic of China

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (the Department) is conducting a new shipper review of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China (PRC) in response to a request from Shanghai Ocean Flavor International Trading Co., Ltd. (Shanghai Ocean Flavor). The period of review (POR) is September 1, 2002 through February 28, 2003. The preliminary results are listed below in the “Preliminary Results of Review” section. Interested parties are invited to comment on these preliminary results.

EFFECTIVE DATE:

March 2, 2004

FOR FURTHER INFORMATION CONTACT:

Addilyn Chams-Eddine or Thomas Gilgunn, Office of AD/CVD Enforcement VII, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-0648 or (202) 482-4236, respectively.

Background

The Department published in the Federal Register an antidumping duty order on freshwater crawfish tail meat from the People's Republic of China 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. On March 31, 2003, the Department received a timely request for a new shipper review under the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China in accordance with section 751(a)(2)(B) of the Act and section 351.214(c) of the Department's regulations from Shanghai Ocean Flavor. In its request, Shanghai Ocean Flavor identified Jiangxi Quanfu Aquatic Food Co., Ltd. (Jiangxi Quanfu) as the sole company that produced the crawfish tail meat exported for its new shipper sales. On April 30, 2003, the Department initiated this new shipper review for the period September 1, 2002 through February 28, 2003. (See Freshwater Crawfish Tail Meat From the People's Republic of China: Initiation of Antidumping Duty New Shipper Review, 68 FR 23962 (May 6, 2003).)

On May 12, 2003 we issued a questionnaire to Shanghai Ocean Flavor. On June 17, 2002, we received its sections A, C, and D questionnaire response. On August 5, 2003, we issued a supplemental questionnaire to Shanghai Ocean Flavor. We received the response to this questionnaire on August 19, 2003. On November 7, 2003, we issued a second supplemental questionnaire to Shanghai Ocean Flavor. We received its response to the second supplemental questionnaire on November 18, 2003. We issued a third supplemental questionnaire to Shanghai Ocean Flavor on November 14, 2003. We received its response to the third supplemental questionnaire on November 20, 2003.

On August 22, 2003, we requested information from the U.S. importer of Shanghai Ocean Flavor's new shipper sales. We received its response to the questionnaire on September 11, 2003. We issued a supplemental questionnaire on November 7, 2003, to the U. S. importer of Shanghai Ocean Flavor's new shipper shipments. We received its response to the supplemental questionnaire December 4, 2003.

On September 15, 2003, the Department extended the preliminary results of this new shipper review by 120 days until February 24, 2004. See Freshwater Crawfish Tail Meat from the People's Republic of China: Extension of Time Limit of Preliminary Results of New Shipper Review, 68 FR 53960 (September 15, 2003).

SUPPLEMENTARY INFORMATION:

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 U.S. Customs Service in 2000, and HTS items 0306.19.00.10 and 0306.29.00, 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.

Verification

As provided in section 782(i) of the Act, we conducted verification of the questionnaire responses of Shanghai Ocean Flavor. We used standard verification procedures, including on-site inspection of the exporter's and manufacturer's facilities and the examination of relevant sales and financial records. Our verification results are outlined in the New Shipper Review of Freshwater Crawfish Tail Meat (tail meat) from the People's Republic of China (PRC) (A-570-848): Sales and Factors Verification Report for Shanghai Ocean Flavor International Trading Co., Ltd., dated February 19, 2004 (Shanghai Ocean Flavor Verification Report). A public version of this report is on file in the Central Records Unit (CRU) located in room B-099 of the Main Commerce Building.

Separate Rates

The Department has treated the PRC as a non-market-economy (NME) country in all past antidumping investigations and in prior segments of this proceeding. See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Bulk Aspirin From the People's Republic of China, 65 FR 33805 (May 25, 2000), and Notice of Final Determination of Sales at Less Than Fair Value: Certain Non-Frozen Apple Juice Concentrate from the People's Republic of China, 65 FR 19873 (April 13, 2000). A designation 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.

It is the Department's standard 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 eligible for a separate, company-specific rate, the Department analyzes each exporting entity in an NME country under the test established in the Final Determination of Sales at Less than Fair Value: Sparklers from the People's Republic of China, 56 FR 20588 (May 6, 1991) (Sparklers), as amplified by the Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People's Republic of China, 59 FR 22585 (May 2, 1994) (Silicon Carbide). Under this policy, exporters in NMEs are eligible for separate, company-specific margins when they can demonstrate an absence of government control, in law and in fact, with respect to export activities. Evidence supporting, though not requiring, a finding of de jure absence of government control over export activities includes: 1) an absence of restrictive stipulations associated with an individual exporter's business and export licenses; 2) any legislative enactments decentralizing control of companies; and 3) any other formal measures by the government decentralizing control of companies. De facto absence of government control over exports is based on four factors: 1) whether each exporter sets its own export prices independently of the government and without the approval of a government authority; 2) whether each exporter retains the proceeds from its sales and makes independent decisions regarding the disposition of profits or financing of losses; 3) whether each exporter has the authority to negotiate and sign contracts and other agreements; and 4) whether each exporter has autonomy from the government regarding the selection of management.

Shanghai Ocean Flavor requested a separate, company-specific rate. Shanghai Ocean Flavor provided separate rates information in its questionnaire response. Accordingly, we performed separate-rate analysis to determine whether Shanghai Ocean Flavor is independent from government control. See Notice of Final Determination of Sales at Less than Fair Value: Bicycles From the People's Republic of China, 61 FR 56570 (April 30, 1996).

De Jure Control

With respect to the absence of de jure government control over the export activities of the company reviewed, evidence on the record supports the claim made by Shanghai Ocean Flavor that its export activities are not controlled by the government. Shanghai Ocean Flavor submitted evidence of its legal right to set prices independently of all government oversight. The business license of Shanghai Ocean Flavor indicates that the company is permitted to engage in the exportation of crawfish. We found no evidence of de jure government control restricting this company's exportation of crawfish.

There are no export quotas that apply to crawfish. Prior verifications have confirmed that there are no commodity-specific export licenses required and no quotas for the seafood category “Other,” which includes crawfish, in China's Tariff and Non-Tariff Handbook for 1996. In addition, we have previously confirmed that crawfish is not on the list of commodities with planned quotas in the 1992 PRC Ministry of Foreign Trade and Economic Cooperation document entitled Temporary Provisions for Administration of Export Commodities. See e.g., Freshwater Crawfish Tail Meat From The People's Republic of China; Preliminary Results of New Shipper Review, 64 FR 8543 (February 22, 1999) and Freshwater Crawfish Tail Meat From the People's Republic of China; Final Results of New Shipper Review, 64 FR 27961 (May 24, 1999).

Shanghai Ocean Flavor submitted a copy of the Company Law of the People's Republic of China (Company Law), adopted by the Fifth Meeting of the Standing Committee of the Eighth National People's Congress (effective July 1, 1994). The Company Law indicates a lack of de jure government control over privately-owned companies, such as Shanghai Ocean Flavor, and indicates that control over this enterprise rests with the enterprise itself. The Company Law states that, “a company shall enjoy the rights to the entire property of the legal person formed by the investments of the shareholders and shall possess civil rights and bear the civil liabilities in accordance with the law.” Additionally, Shanghai Ocean Flavor submitted, for the record of this review, the Foreign Trade Law of the People's Republic of China (Foreign Trade Law), adopted by the Seventh Meeting of the Standing Committee of the Eighth National People's Congress (effective on July 1, 1994). The Foreign Trade Law also indicates a lack of de jure government control over privately-owned companies, such as Shanghai Ocean Flavor. The Foreign Trade Law regulations state that “foreign trade operators shall in accordance with law enjoy full autonomy in their management and shall be responsible for their own profits and losses.” See Notice of Final Determination of Sales at Less Than Fair Value; Manganese Metal from the People's Republic of China, 60 FR 56045 (November 6, 1995). At verification, we examined the business license for Shanghai Ocean Flavor, which indicates that the license was granted in accordance with these laws. The results of verification support the information provided regarding the Company Law and the Foreign Trade Law. (See Shanghai Ocean Flavor Verification Report, at 2.) Therefore, we preliminarily determine that there is an absence of de jure control over export activity with respect to Shanghai Ocean Flavor.

De Facto Control

With respect to the absence of de facto control over export activities, the information submitted on the record and reviewed at verification indicates that the management of Shanghai Ocean Flavor is responsible for the determination of export prices, profit distribution, marketing strategy, and contract negotiations. Our analysis indicates that there is no government involvement in the daily operations or the selection of management for this company. In addition, we have found that the respondent's pricing and export strategy decisions are not subject to the review or approval of any outside entity, and that there are no governmental policy directives that affect these decisions.

There are no restrictions on the use of export earnings. The general manager of Shanghai Ocean Flavor has the right to negotiate and enter into contracts, and may delegate this authority to employees within the company. There is no evidence that this authority is subject to any level of governmental approval. Shanghai Ocean Flavor reported that its management is selected by a board of directors and there is no government involvement in the selection process. Finally, decisions made by the respondent concerning purchases of subject merchandise from suppliers are not subject to government approval. Consequently, because evidence on the record indicates an absence of government control, both in law and in fact, over the company's export activities, we preliminarily determine that a separate rate should be applied to Shanghai Ocean Flavor. For further discussion of the Department's preliminary determination regarding the issuance of separate rates, see Memorandum for Dana Mermelstein from Addilyn Chams-Eddine entitled Separate Rates in the 2002-2003 New Shipper Review of Freshwater Crawfish Tail Meat from the People's Republic of China, dated February 24, 2004. This memorandum is on file in the CRU.

Normal Value Comparisons

To determine whether the respondent's sales of the subject merchandise to the United States were made at a price below normal value, we compared its United States price to normal value, as described in the “United States Price” and “Normal Value” sections of this notice.

United States Price

Based on the information we have gathered to date, we preliminarily find Shanghai Ocean Flavor's sales to be bona fide. However, we will continue to analyze this issue for purposes of the final results of review. For a discussion of our analysis see Memorandum to the File through Dana Mermelstein from Addilyn Chams-Eddine entitled Bona Fide Nature of the New Shipper Review Sales of Shanghai Ocean Flavor International Trading Co., Ltd., dated February 24, 2004. A public version of this Memorandum is on file in the CRU.

We based the United States price on export price (EP), in accordance with section 772(a) of the Act, because the first sale to an unaffiliated purchaser was made prior to importation, and constructed export price (CEP) was not otherwise warranted by the facts on the record. We calculated EP based on the packed price from the exporter to the first unaffiliated purchaser in the United States. We deducted foreign inland freight, international freight and foreign brokerage and handling expenses from the starting price (gross unit price) in accordance with section 772(c) of the Act.

Normal Value

1. Surrogate Country

When investigating imports from an NME country, section 773(c)(1) of the Act directs the Department to base normal value, in most circumstances, on the NME producer's factors of production 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 factors of production, the Department shall use, to the extent practicable, the prices or costs of factors of production in one or more market-economy countries that are at a level of economic development comparable to the NME country and are significant producers of comparable merchandise. The sources of the surrogate factor values are discussed under the “Factor Valuations” section below.

We calculated normal value based on factors of production in accordance with section 773(c)(4) of the Act and section 351.408(c) of our regulations. Consistent with the original investigation and the subsequent administrative reviews of this order, we determined that India (1) is comparable to the PRC in level of economic development, and (2) is a significant producer of comparable merchandise. See Memorandum to the File from Addilyn Chams-Eddine through Dana Mermelstein: Surrogate Values Used for the Preliminary Results of the Antidumping Duty New Shipper Review of Freshwater Crawfish Tailmeat from the People's Republic of China, dated February 24, 2004 (Factor Values Memo). This Memorandum is on file in the CRU.

2. Factors of Production

Section 773(c)(1) of the Act provides that the Department shall determine normal value (NV) using a factors-of-production methodology if (1) the merchandise is exported from an NME country, and (2) available information does not permit the calculation of normal value using home-market prices, third-country prices, or constructed value under section 773(a) of the Act. Factors of production include the following elements: (1) hours of labor required, (2) quantities of raw materials employed, (3) amounts of energy and other utilities consumed, and (4) representative capital costs. We used the verified factors of production for materials, energy, labor, and packing. We valued all the input factors using publicly available information, as discussed in the “Surrogate Country"section of this notice.

With the exceptions of the whole live crawfish input and the crawfish shell scrap by-product, we valued the factors of production using publicly available information from India. We adjusted the Indian import prices by adding foreign inland freight expenses to make them delivered prices. For reasons which are discussed below in more detail, the live crawfish input was valued using Spanish import data and the crawfish shell scrap was valued using an Indonesian price quote. See Factor Values Memo.

In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of an administrative review and a new shipper review, interested parties may submit publicly available information to value the factors of production no later than 20 days following the date of publication of these preliminary results.

3. Factor Valuations

We applied surrogate values to the factors of production to determine normal value. We valued the factors of production as follows:

Materials

Crawfish

To value the input of whole live crawfish, we used publicly available data on Spanish imports of whole live crawfish from Portugal. Based on our research in prior reviews we used Spanish import data because: (1) there is no crawfish industry in India or in any of the other countries identified in the list of countries at a level of economic development comparable to that of the PRC (see Antidumping New Shipper Review of Freshwater Crawfish Tailmeat from the People's Republic of China: Request for a List of Surrogate Countries, dated February 11, 2004, on file in the CRU (Surrogate Countries Memo)); and (2) Spain is the only country which the Department determined has both a comparable product and publicly available import statistics. See e.g., Notice of Preliminary Results of Antidumping Duty New Shipper Review: Freshwater Crawfish Tail Meat from the People's Republic of China, 68 FR 7976 (February 19, 2003) (Weishan Zhenyu Prelim). We adjusted the values of whole live crawfish to include freight costs incurred between the supplier and the factory. For transportation distances used in the calculation of freight expenses on whole live crawfish, we added a surrogate freight cost using the shorter of (a) the distances between the closest PRC port and the factory, or (b) the distance between the domestic supplier and the factory. See Notice of Final Determination of Sales at Less Than Fair Value: Collated Roofing Nails From the People's Republic of China, 62 FR 51410 (October 1, 1997) (Roofing Nails).

Crawfish Shell Scrap

To value the by-product of crawfish shell scrap, we used a price quote from Indonesia for wet crab and shrimp shells, because (1) there is no Indian data suitable for valuing the crawfish scrap factor and (2) Indonesia is among the countries identified as an appropriate surrogate. See Memorandum to Barbara E. Tillman, Director, Office of AD/CVD Enforcement VII, through Maureen Flannery, Program Manager, from Christian Hughes and Adina Teodorescu, Case Analysts: Surrogate Valuation of Shell Scrap: Freshwater Crawfish Tail Meat from the People's Republic of China (PRC), Administrative Review 9/1/00-8/31/01 and New Shipper Reviews 9/1/00-8/31/01 and 9/1/00-10/15/01 (August 5, 2002) and Memorandum to file from Barbara E. Tillman entitled Summary of Telephone Discussion with Official of Indo Chitosan International (July 15, 2002). These documents are included in Attachment 5 to the Factor Values Memo. See also Surrogate Countries Memo.

Energy

Coal

To value coal, we relied upon Indian import data for steam coal from the internet version of the online publication, World Trade Atlas. We adjusted the cost of coal to include an amount for transportation. To value electricity, we used the average of the total cost per kilowatt hour (KWH) for “Electricity for Industry” as reported in the International Energy Agency's publication, Key World Energy Statistics (2003). For water, we relied upon public information from the October 1997 Second Water Utilities Data Book: Asian and Pacific Region, published by the Asian Development Bank.

Water

To achieve comparability of water prices to the factor reported for the crawfish tail meat processing period applicable to the company under review, we adjusted this factor value to reflect inflation during the POR using the Wholesale Price Index (WPI) for India, as published in the International Financial Statistics (IFS) by the International Monetary Fund (IMF).

Packing Material

To value packing materials (plastic bags, cardboard boxes and adhesive tape), we relied upon the most recent Indian import data for the period as reported in the World Trade Atlas. We adjusted the values of packing materials to include freight costs incurred between the supplier and the factory. For transportation distances used in the calculation of freight expenses on packing materials, we used the the shorter of (a) the distances between the closest PRC port and the factory, or (b) the distance between the domestic supplier and the factory. (See Roofing Nails.)

Labor

For labor, we used the PRC regression-based wage rate found on Import Administration's home page, Import Library, Expected Wages of Selected NME Countries, revised in September 2003 (updated in February 2004). See http://www.ia.ita.doc.gov/wages/01wages/01wages.html Because of the variability of wage rates in countries with similar per capita gross domestic products, section 351.408(c)(3) of the Department's regulations require the use of a regression-based wage rate. The source of these wage rate data on the Import Administration's web site is the Year Book of Labour Statistics 2002, International Labour Organization (ILO), (Geneva: 2002), Chapter 5B: Wages in Manufacturing.

Factory Overhead, SG&A, and Profit

To value factory overhead, selling, general, and administrative expenses (SG&A), and profit, we continued to use a simple average derived from the publicly available financial statements of four Indian seafood processing companies. We applied these rates to the calculated cost of manufacture. See Factor Values Memo, at 6.

Transportation Expenses

We valued movement expenses as follows: to value truck freight expenses we used nineteen price quotes as reported in the February 14, 2000 issue of the Indian publication, The Financial Express, which was used in the antidumping duty investigation of certain circular welded carbon-quality steel pipe from the PRC. See Notice of Final Determination of Sales at Less than Fair Value: Certain Circular Welded Carbon-Quality Steel Pipe from the People's Republic of China , 67 FR 36570 (May 24, 2002). We adjusted the rates to reflect inflation to the month of the sales of the finished product using the WPI for India from the International Financial Statistics (IFS) by the International Monetary Fund (IMF).

Currency Conversion

We made currency conversions pursuant to section 351.415 of the Department's regulations at the rates certified by the Federal Reserve Bank.

Preliminary Results of Review

We preliminarily determine that the following dumping margin exists:

Cash Deposit Requirements

Upon completion of the review, bonding will no longer be permitted and cash deposits will be required. If the final results of the review remain the same as the preliminary results, the cash deposit rate for shipments exported by Shanghai Ocean Flavor that were produced by Jiangxi Quanfu will be the total amount of antidumping duties divided by the total quantity exported during the POR. See Memorandum to file dated February 24, 2002, which places on the record of this review the Memorandum to Barbara E. Tillman through Maureen Flannery, from Mark Hoadley: Collection of Cash Deposits and Assessment of Duties on Freshwater Crawfish from the PRC, dated August 27, 2001. This cash deposit rate will be effective upon publication of the final results of this new shipper review for all shipments of freshwater crawfish tail meat from the PRC exported by Shanghai Ocean Flavor that were produced by Jiangxi Quanfu and entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided for by section 751(a)(2)(C) of the Act. This per kilogram cash deposit rate will be equivalent to the company-specific dumping margin established in this review. For crawfish tail meat exported by Shanghai Ocean Flavor, but not produced by Jiangxi Quanfu, we will apply the PRC-wide rate, which is currently 223.01 percent, as the cash deposit rate.

Assessment Rates

Upon completion of this new shipper review, the Department shall determine, and the U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. The Department will issue appraisement instructions directly to the CBP upon completion of this review. For assessment purposes, we calculated importer-specific assessment rates for freshwater crawfish tail meat from the PRC. We divided the total dumping margins (calculated as the difference between NV and EP) for the importer by the total quantity of subject merchandise sold to that importer during the POR. Upon completion of this review, we will direct CBP to assess antidumping duties on a per kilogram basis equivalent to the company-specific dumping margin established in this review for each entry of subject merchandise made by the importer during the POR that was produced by Jiangxi Quanfu and exported by Shanghai Ocean Flavor during the POR. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of review.

Schedule for Final Results of Review

Pursuant to19 CFR 351.224(b), the Department will disclose calculations performed in connection with the preliminary results of this review within five days of the date of publication of this notice. Any interested party may request a hearing within 30 days of publication of this notice in accordance with section 351.310(c) of the Department's regulations. Any hearing would normally be held 37 days after the publication of this notice, or the first workday thereafter, at the U.S. Department of Commerce, 14th Street and Constitution Avenue N.W., Washington, DC 20230. Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the Federal Register to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Requests for a public hearing should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and, (3) to the extent practicable, an identification of the arguments to be raised at the hearing.

Unless otherwise notified by the Department, interested parties may submit case briefs within 30 days of the date of publication of this notice in accordance with 351.309(c)(ii) of the Department's regulations. As part of the case brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. Rebuttal briefs, which must be limited to issues raised in the case briefs, must be filed within five days after the case brief is filed. If a hearing is held, an interested party may make an affirmative presentation only on arguments included in that party's case brief and may make a rebuttal presentation only on arguments included in that party's rebuttal brief. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.

Unless the time limit is extended, the Department will issue the final results of this new shipper review no later than 90 days after the signature date of the preliminary results. The final results will include the analysis of issues raised in the briefs.

Notification to Importers

At the completion of this new shipper review, the Department will notify the CBP that bonding will no longer be permitted to fulfill security requirements for shipments exported by Shanghai Ocean Flavor and produced by Jiangxi Quanfu of freshwater crawfish tail meat from the PRC that are entered, or withdrawn from warehouse, for consumption in the United States on or after the publication of the final results in the Federal Register, and that a cash deposit should be collected for any entries exported by Shanghai Ocean Flavor.

This notice also serves as a preliminary reminder to importers of their responsibility under 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 these review periods. 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 new shipper review and this notice are published in accordance with sections 751(a)(2)(B) and 777 (I)(1) of the Act.