Third Administrative Review of Frozen Warmwater Shrimp from the People's Republic of China: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review, 10026-10034 [E9-4900]
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Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Notices
Respondent Selection
DEPARTMENT OF COMMERCE
International Trade Administration
A–570–893
Third Administrative Review of Frozen
Warmwater Shrimp from the People’s
Republic of China: Preliminary Results
and Partial Rescission of 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, 2007, through
January 31, 2008. As discussed below,
we preliminarily determine that certain
respondents in this review made sales
in the United States at prices below
normal value (‘‘NV’’). If these
preliminary results are adopted in our
final results of review, we will instruct
U.S. Customs and Border Protection
(‘‘CBP’’) to assess antidumping duties
on entries of subject merchandise
during the POR for which importer–
specific assessment rates are above de
minimis.
EFFECTIVE DATE:
March 9, 2009.
Paul
Walker, 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) 482–0413.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
dwashington3 on PROD1PC60 with NOTICES
Background
The Department received timely
requests from both Petitioners1 and
certain PRC companies, 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 7, 2008, the
Department initiated an administrative
review of 482 producers/exporters of
subject merchandise from the PRC.2 See
Notice of Initiation of Administrative
Reviews of the Antidumping Duty
Orders on Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam
and the People’s Republic of China, 73
FR 18739 (April 7, 2008) (‘‘Initiation’’).
1 The petitioners are the members of the Ad Hoc
Shrimp Trade Action Committee (hereinafter
referred to as ‘‘Petitioners’’).
2 See Initiation for a listing of these companies.
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On June 16, 2008, in accordance with
section 777A(c)(2) of the Tariff Act of
1930, as amended (‘‘Act’’), the
Department selected Hilltop
International (‘‘Hilltop’’) and Zhanjiang
Go–Harvest Aquatic Products Co., Ltd.
(‘‘Go–Harvest’’) for individual
examination in this review, since they
were the two largest exporters by
volume during the POR, based on CBP
data of U.S. imports. See Memorandum
to James Doyle, Director, Office IX, from
Susan Pulongbarit, International Trade
Analyst, ‘‘2007–2008 Antidumping Duty
Administrative Review of Certain
Frozen Warmwater Shrimp from the
People’s Republic of China: Selection of
Respondents for Individual Review,’’
dated June 16, 2008. On July 1, 2008,
the Department issued antidumping
duty questionnaires to Hilltop and Go–
Harvest.
On July 3, 2008, Hilltop withdrew its
request for review, and on July 7, 2008,
Petitioners withdrew their request for
review of Yelin Enterprise Co., Ltd.
Hong Kong (the predecessor in interest
to Hilltop International); Yangjiang City
Yelin Hoitat Quick Frozen Seafood Co.,
Ltd.; Fuqing Yihua Aquatic Food Co.,
Ltd.; and Fuqing Minhua Trade Co., Ltd.
(collectively referred to hereafter as
‘‘Hilltop/Yelin’’). Since both withdrawal
requests were timely, and no other party
requested a review of Hilltop/Yelin, in
accordance with section 351.213(d)(1) of
the Department’s regulations, the
Department is rescinding the
administrative review with respect to
Hilltop/Yelin. See the ‘‘Partial Recission
of Review’’ section below.
Consequently, on August 25, 2008, in
accordance with section 777A(c)(2) of
the Act, the Department selected
Zhanjiang Regal Integrated Marine
Resources Co., Ltd. (‘‘Regal’’) for
individual examination in this review,
because Regal was the next largest
exporter by volume during the POR,
based on CBP data of U.S. imports. See
Memorandum to James Doyle, Director,
Office IX, from Erin Begnal, Senior
International Trade Analyst, ‘‘2007–
2008 Antidumping Duty Administrative
Review of Certain Frozen Warmwater
Shrimp from the People’s Republic of
China: Selection of Additional
Mandatory Respondent,’’ dated August
25, 2008. On August 29, 2008, the
Department issued the antidumping
duty questionnaire to Regal.
Regal
Between October 3, 2008, and January
21, 2009, Regal responded to the
Department’s original and supplemental
questionnaires. Pursuant to 19 CFR
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351.307(b)(iv), from January 19–23,
2009, the Department conducted
verification of Regal’s questionnaire
responses. See Memorandum to the File
through Scot Fullerton, Program
Manager, Office IX, from Paul Walker,
Senior Case Analyst, ‘‘Third
Administrative Review of Frozen
Warmwater Shrimp from the People’s
Republic of China: Verification of
Zhanjiang Regal Integrated Marine
Resources Co., Ltd.,’’ dated concurrently
with this notice (‘‘Regal Verification
Report’’).
Go–Harvest
In response to the Department’s July
1, 2008, questionnaire, on August 8,
2008, Go–Harvest submitted a
certification to the Department stating
that it had no shipments of subject
merchandise during the POR. However,
as noted above in the ‘‘Respondent
Selection’’ section, the Department
placed information on the record
obtained from CBP which showed that
shipments of subject merchandise had
been made by Go–Harvest during the
POR. On October 22, 2008, the
Department issued a second
antidumping duty questionnaire to Go–
Harvest. On November 5, 2008, Go–
Harvest submitted a second no
shipment certification. On November
12, 2008, the Department issued Go–
Harvest a third questionnaire to resolve
the discrepancies between the CBP data
and Go–Harvest’s no shipment
certifications of August 8, 2008, and
November 5, 2008. On November 17,
2008, Go–Harvest submitted a letter
stating that it would not respond to the
Department’s questionnaire of
November 12, 2008. On November 19,
2008, the Department provided Go–
Harvest an additional opportunity to
respond to the Department’s November
12, 2008, questionnaire. Go–Harvest
made no response to this additional
opportunity.
Separate Rates
On May 30, 2008, we received a
separate rate application from Shantou
Longsheng Aquatic Product Foodstuff
Co., Ltd. (‘‘Shantou Longsheng’’). Go–
Harvest did not demonstrate eligibility
for a separate rate during the course of
this proceeding. Thus, Go–Harvest will
be considered part of the PRC–wide
entity for purposes of this review.
Rescission of Reviews
As noted above, on July 7, 2008, the
Petitioners made a timely withdrawal of
review request on Hilltop/Yelin.
Between April 17, 2008, and April 30,
2008, the following companies
submitted no shipment certifications:
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Allied Pacific Group (comprised of
Allied Pacific Food (Dalian) Co., Ltd.;
Allied Pacific Aquatic Products
(Zhanjiang) Co., Ltd.;3 Zhanjiang Allied
Pacific Aquaculture Co., Ltd.; Allied
Pacific (H.K.) Co., Ltd.; and King Royal
Investments Ltd.); Gallant Ocean
(Nanhai), Ltd.; Luk Ka Paper Industrial
Ltd.; Shantou Yelin Frozen Seafood Co.,
Ltd.; and Shantou Yuexing Enterprise
Company.
Surrogate Country and Surrogate
Values
On October 21, 2008, the Department
sent interested parties a letter requesting
comments on the surrogate country and
information pertaining to valuing factors
of production (‘‘FOPs’’). On January 16,
2009, Petitioners submitted surrogate
value comments regarding various Thai
sources. No other interested party
submitted comments on the surrogate
country or information pertaining to
valuing FOPs.
Case Schedule
On October 8, 2008, 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
March 2, 2008. See Certain Frozen
Warmwater Shrimp from Ecuador,
India, the People’s Republic of China,
and Thailand: Notice of Extension of
Time Limits for the Preliminary Results
of the Third Administrative Reviews, 73
FR 58931 (October 8, 2008).
Partial Rescission of Review
Final Partial Rescission
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Pursuant to 19 CFR 351.213(d)(1), the
Secretary will rescind an administrative
review, in whole or in part, if a party
who requested the review withdraws
the request within ninety days of the
date of publication of notice of initiation
of the requested review. Because the
Petitioner’s and Hilltop’s withdrawals of
requests for review were timely and no
other party requested a review of the
following companies, in accordance
with 19 CFR 351.213(d)(1), we are
rescinding this review with respect to
Hilltop/Yelin.
3 The Department in its initiation notice included
‘‘Allied Pacific Aquatic Products (Zhangjiang) Co.,
Ltd.’’ due to the Petitioners’ misspelling of the
company’s name in its review request. See Letter
from Dewey & LeBouef to the Secretary of
Commerce, ‘‘Request for Administrative Reviews,’’
(Feb. 29, 2008). In its April 17, 2008, letter, Allied
Pacific Aquatic Products (Zhanjiang) Co., Ltd.
clarified the correct spelling of its name. See Letter
from Trade Pacific to the Secretary of Commerce,
‘‘Frozen Warmwater Shrimp from the People’s
Republic of China.’’ The Department notes that the
review is preliminarily rescinded for both the
proper name and the misspelled name of this
company.
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Preliminary Partial Rescission
As discussed in the ‘‘Supplementary
Information’’ section above, several
companies indicated they did not export
PRC origin shrimp to the United States
during the POR. In order to corroborate
these submissions, we reviewed PRC
shrimp shipment data obtained from
CBP, and found no discrepancies with
the statements made by these firms.
Therefore, for the reasons mentioned
above, we are preliminarily rescinding
the administrative review with respect
to: Allied Pacific Group (comprised of
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.); Gallant Ocean
(Nanhai), Ltd.; Luk Ka Paper Industrial
Ltd.; Shantou Yelin Frozen Seafood Co.,
Ltd.; and Shantou Yuexing Enterprise
Company because each reported having
made no shipments of subject
merchandise during the POR, and the
Department found no information to
indicate otherwise. 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) (‘‘Third Fish Fillets Review’’).
Scope of the Order
The scope of this 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.
The frozen warmwater shrimp and
prawn products included in the scope of
this investigation, 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
4 ‘‘Tails’’ in this context means the tail fan, which
includes the telson and the uropods.
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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 this
investigation. 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 this
investigation.
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 this
investigation are currently classified
under the following HTS subheadings:
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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
this investigation
is dispositive.
Facts Available
Sections 776(a)(1) and 776(a)(2) of the
Act, provide that, if necessary
information is not available or on the
record, or if an interested party: (A)
withholds information that has been
requested by the Department; (B) fails to
provide such information in a timely
manner or in the form or manner
requested subject to sections 782(c)(1)
and (e) of the Act; (C) significantly
impedes a proceeding under the
antidumping statute; or (D) provides
such information but the information
cannot be verified, the Department
shall, subject to subsection 782(d) of the
Act, use facts otherwise available in
reaching the applicable determination.
Section 782(c)(1) of the Act provides
that if an interested party ‘‘promptly
after receiving a request from {the
Department} for information, notifies
{the Department} that such party is
unable to submit the information
requested in the requested form and
manner, together with a full explanation
and suggested alternative forms in
which such party is able to submit the
information,’’ the Department may
modify the requirements to avoid
imposing an unreasonable burden on
that party.
Section 782(d) of the Act provides
that, if the Department determines that
a response to a request for information
does not comply with the request, the
Department will inform the person
submitting the response of the nature of
the deficiency and shall, to the extent
practicable, provide that person the
opportunity to remedy or explain the
deficiency. If that person submits
further information that continues to be
unsatisfactory, or this information is not
submitted within the applicable time
limits, the Department may, subject to
section 782(e) of the Act, disregard all
or part of the original and subsequent
responses, as appropriate.
Section 782(e) of the Act states that
the Department shall not decline to
consider information deemed
‘‘deficient’’ under section 782(d) if: (1)
the information is submitted by the
established deadline; (2) the information
can be verified; (3) the information is
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not so incomplete that it cannot serve as
a reliable basis for reaching the
applicable determination; (4) the
interested party has demonstrated that it
acted to the best of its ability in
providing the information and meeting
the requirements established by the
Department; and (5) the information can
be used without undue difficulties.
Furthermore, section 776(b) of the Act
states that if the Department ‘‘finds that
an interested party has failed to
cooperate by not acting to the best of its
ability to comply with a request for
information from the administering
authority or the Commission, the
administering authority or the
Commission . . . , in reaching the
applicable determination under this
title, may use an inference that is
adverse to the interests of that party in
selecting from among the facts
otherwise available.’’ See also Statement
of Administrative Action accompanying
the Uruguay Round Agreements Act,
H.R. Rep. No. 103–316 at 870 (1994)
(‘‘SAA’’). Adverse inferences are
appropriate ‘‘to ensure that the party
does not obtain a more favorable result
by failing to cooperate than if it had
cooperated fully.’’ Id. An adverse
inference may include reliance on
information derived from the petition,
the final determination in the
investigation, any previous review, or
any other information placed on the
record. See section 776(b) of the Act.
Regal’s Water Consumption
For these preliminary results, in
accordance with sections 776(a)(1) and
776(a)(2)(B) of the Act, we have
determined that the use of facts
available is appropriate for Regal’s
consumption of water. As noted above,
consistent with section 782(c)(1) of the
Act, if an interested party promptly
notifies the Department that it is unable
to submit the information in the
requested form and manner, together
with a full explanation and suggested
alternative forms in which such party is
able to submit the information, the
Department will take into consideration
the ability of the party to submit the
information in the requested form and
manner and may modify such
requirements to the extent necessary to
avoid imposing an unreasonable burden
on that party.
Consistent with section 773(c)(1)(B) of
the Act, the Department values FOPs
that a respondent uses to produce the
subject merchandise. See, e.g., Third
Fish Fillets Review at Comment 8E. In
past cases the Department has
specifically stated that water which is
pumped from a well, regardless of
whether the respondent incurs a cost for
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that water, will be treated as a FOP and
valued accordingly. See, e.g., Fresh
Garlic from the People’s Republic of
China: Final Results and Partial
Rescission of the Eleventh
Administrative Review and New
Shipper Reviews, 72 FR 34438 (June 22,
2007) at Comment 8. In its questionnaire
responses, Regal stated that it used
water during the farming and processing
of shrimp. Regal also stated that it did
not track the amount of water used
because it incurred no cost for pumping
the water from either wells (at the
processing factory) or the ocean (at the
farms). At verification the Department
found no evidence that Regal tracks the
amount of water it consumes in its
normal course of business. See Regal
Verification Report at 2. However, at
verification Regal was able to provide
estimates of the water it consumed. Id.
Because information regarding the
actual amount of water consumed is not
available and Regal was unable to
provide the data regarding actual water
consumption, and in the form and
manner required, we are applying facts
available to Regal’s water consumption
in accordance with sections 776(a)(1),
776(a)(2)(B) and 782(c)(1) of the Act.
As noted above, Regal consumes
water at its shrimp farms. As facts
available, we are applying the average
amount of water consumed at the farms,
as estimated by Regal’s farming
production manager, to the NV. See
Regal Verification Report at 2. In
addition, Regal uses water at its
processing factory to make ice, to clean
the shrimp during the production
process, and to pack the shrimp. Also,
as facts available, to account for the ice
consumed by Regal at its processing
plant, we are applying the average
amount of ice reported by Regal5 in
transporting the shrimp form the farm to
the factory. See Regal’s October 23, 2008
submission. In addition, as facts
available, to calculate the water used to
pack the shrimp we are deducting from
the gross weight of the sale, the weight
of the shrimp and packing. Moreover,
we are using an average of these water
weights to estimate the amount of water
Regal used to wash the shrimp during
the production process. Because these
usage rates are proprietary, see
Memorandum to the File, through Scot
Fullerton, Program Manager, Office IX,
from Paul Walker, Senior Analyst,
‘‘Third Administrative Review of Frozen
Warmwater Shrimp from the People’s
Republic of China: Zhanjiang Regal
5 Regal purchases ice to keep the shrimp fresh as
they are transported from the farm to the factory.
Regal reported an FOP usage rate for this purchased
ice.
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Integrated Marine Resources Co., Ltd.,’’
dated concurrently with this notice
(‘‘Regal Analysis Memo’’) for further
details.
Moreover, we note that for future
reviews of this order, Regal must
comply with all requests for information
by the Department and should,
therefore, maintain the appropriate
records to comply with these requests.
If Regal, or any other Respondents, are
unable to comply with such requests,
the Department may resort to the use of
adverse facts available (‘‘AFA’’) absent
the information on the record that is
required by the Department to conduct
its proceedings in accordance with
section 776(b) of the Act.
Regal’s Unreported FOP and Movement
Expense
For these preliminary results, in
accordance with section 776(a)(2)(A) of
the Act, we have determined that the
use of facts available is appropriate for
Regal’s unreported consumption of
diesel oil and movement expenses it
paid for filing U.S. Food and Drug
Administration (‘‘USFDA’’) paperwork
in the United States for certain sales.
Regal did not report diesel oil
consumption or certain movement
expenses in its submissions of FOP and
sales data dated October 3, 2008,
December 16, 2008, and January 21,
2009. At verification, Regal attempted to
submit data regarding its diesel oil
consumption and other movement
expenses as minor corrections.
However, the Department did not accept
this new information as minor
corrections. See Regal Verification
Report at 2. Unlike water, the usage of
which is not currently recorded in
Regal’s books and records, we note
diesel oil consumption and this
particular movement expense are
recorded in Regal’s books and records
and were readily available to Regal.
Because Regal did not report this data
in a timely manner, and failed to report
its diesel oil consumption and the
movement expense to the Department,
despite multiple opportunities to
provide complete FOP and sales data,
we are applying facts available to
Regal’s unreported diesel oil
consumption and movement expense
pursuant to section 776(a)(2)(A) of the
Act.
As noted above, section 776(b) of the
Act states that if the Department ‘‘finds
that an interested party has failed to
cooperate by not acting to the best of its
ability to comply with a request for
information from the administering
authority or the Commission, the
administering authority or the
Commission , in reaching the applicable
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determination under this title, may use
an inference that is adverse to the
interests of that party in selecting from
among the facts otherwise available.’’
See also SAA accompanying the URAA
at 870. An adverse inference may
include reliance on information derived
from the Petition, the final
determination in the investigation, any
previous review, or any other
information placed on the record. See
section 776(b) of the Act.
In this instance, Regal failed to act to
the best of its ability to comply with the
Department’s repeated requests for
information regarding all of its FOPs
and sales expenses, i.e., diesel oil and
the movement expenses it paid for filing
USFDA paperwork. See, e.g., the
Department’s letter dated August 29,
2008, at c–25 and d–8, where we asked
Regal to report all U.S. movement
expenses and all energy inputs,
respectively. Only at verification did it
become clear that these two previously
unreported costs existed. As noted
above, these factors are reported in
Regal’s books and records and were
readily available to Regal. Regal did not
indicate that it was unable to submit
complete FOP and sales information in
the requested form and manner.
Therefore, we find that Regal failed to
cooperate to the best of its ability and
we are applying AFA to this FOP and
movement expense incurred by Regal in
these preliminary results, pursuant to
section 776(b) of the Act. As partial
AFA for Regal’s diesel oil FOP, we are
using the highest single monthly usage
rate for diesel oil and applying this
monthly usage rate to all months during
the POR. In addition, as partial AFA for
Regal’s movement expense, we are using
the highest single fee incurred by Regal
and applying this fee to all sales
invoices for which this fee was
incurred.
Go–Harvest/PRC–wide Entity
As noted above in the
‘‘Supplementary Information’’ section,
the Department selected Go–Harvest for
individual examination in this review,
based on CBP data of U.S. imports
which showed that Go–Harvest was one
of the largest exporters by volume
during the POR. Although Go–Harvest
submitted certifications that it had no
shipments, it refused to answer our
questions regarding the discrepancies
between its no shipments claims and
the CBP data. Accordingly, based on the
CBP data, and Go–Harvest’s failure to
refute that data, we find that Go–Harvest
made shipments of subject merchandise
during the POR, and consequently, as a
selected respondent, was required to
answer the full questionnaire. By not
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10029
responding to the Department’s
questionnaire, Go–Harvest failed to
demonstrate that it qualifies for separate
rate status. Accordingly, we consider
Go–Harvest to be a part of the PRC–wide
entity.
We find that the PRC–wide entity,
including Go–Harvest, withheld
requested information, failed to provide
information in a timely manner and in
the form requested, and significantly
impeded this proceeding. Moreover, by
refusing to answer the Department’s
questionnaire, the PRC–wide entity,
including Go–Harvest, failed to
cooperate to the best of its ability.
Therefore, the Department must rely on
adverse facts otherwise available in
order to determine a margin for the
PRC–wide entity, pursuant to section
776(a)(2)(A), (B), (C) and 776(b) of the
Act. See e.g., Non–Malleable Cast Iron
Pipe Fittings from the People’s Republic
of China: Final Results of Antidumping
Duty Administrative Review, 71 FR
69546 (December 1, 2006) and
accompanying Issues and Decision
Memorandum at Comment 1. See also
Certain Frozen Warmwater Shrimp from
the Socialist Republic of Vietnam:
Preliminary Results of the First
Administrative Review and New
Shipper Review, 72 FR 10689, 10692
(March 9, 2007) (decision to apply total
AFA to the NME–wide entity
unchanged in Certain Frozen
Warmwater Shrimp From the Socialist
Republic of Vietnam: Final Results of
the First Antidumping Duty
Administrative Review and First New
Shipper Review, 72 FR 52052
(September 12, 2007) (‘‘First Vietnamese
Shrimp Review’’). By doing so, we
ensure that the companies that are part
of the PRC–wide entity will not obtain
a more favorable result by failing to
cooperate than had they cooperated
fully in this review.
In deciding which facts to use as
AFA, section 776(b) of the Act and 19
CFR 351.308(c)(1) authorize the
Department to rely on information
derived from (1) the petition, (2) a final
determination in the investigation, (3)
any previous review or determination,
or (4) any information placed on the
record. In reviews, the Department
normally selects, as AFA, the highest
rate on the record of any segment of the
proceeding. See, e.g., Certain Steel Nails
from the People’s Republic of China:
Final Determination of Sales at Less
Than Fair Value and Partial Affirmative
Determination of Critical
Circumstances, 73 FR 33977 (June 16,
2008). The Court of International Trade
(‘‘CIT’’) and the Federal Circuit have
consistently upheld the Department’s
practice in this regard. See Rhone
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Poulenc, Inc. v. United States, 899 F.2d
1185, 1190 (Fed. Circ. 1990) (‘‘Rhone
Poulenc’’); NSK Ltd. v. United States,
346 F. Supp. 2d 1312, 1335 (CIT 2004)
(upholding a 73.55 percent total AFA
rate, the highest available dumping
margin from a different respondent in a
LTFV investigation); see also Kompass
Food Trading Int’l v. United States, 24
CIT 678, 689 (2000) (upholding a 51.16
percent total AFA rate, the highest
available dumping margin from a
different, fully cooperative respondent);
and Shanghai Taoen International
Trading Co., Ltd. v. United States, 360
F. Supp 2d 1339, 1348 (CIT 2005)
(upholding a 223.01 percent total AFA
rate, the highest available dumping
margin from a different respondent in a
previous administrative review).
The Department’s practice when
selecting an adverse rate from among
the possible sources of information is to
ensure that the margin is sufficiently
adverse ‘‘as to effectuate the purpose of
the facts available role to induce
respondents to provide the Department
with complete and accurate information
in a timely manner.’’ See Static Random
Access Memory Semiconductors from
Taiwan; Final Determination of Sales at
Less than Fair Value, 63 FR 8909, 8932
(February 23, 1998). The Department’s
practice also ensures ‘‘that the party
does not obtain a more favorable result
by failing to cooperate than if it had
cooperated fully.’’ See SAA at 870; see
also Final Determination of Sales at
Less than Fair Value: Certain Frozen
and Canned Warmwater Shrimp from
Brazil, 69 FR 76910, 76912 (December
23, 2004); D&L Supply Co. v. United
States, 113 F. 3d 1220, 1223 (Fed. Cir.
1997). In choosing the appropriate
balance between providing respondents
with an incentive to respond accurately
and imposing a rate that is reasonably
related to the respondent’s prior
commercial activity, selecting the
highest prior margin ‘‘reflects a common
sense inference that the highest prior
margin is the most probative evidence of
current margins, because, if it were not
so, the importer, knowing of the rule,
would have produced current
information showing the margin to be
less.’’ Rhone Poulenc, 899 F.2d at 1190.
Consistent with the statute, court
precedent, and its normal practice, the
Department has assigned the rate of
112.81 percent, the highest rate on the
record of any segment of the proceeding,
to the PRC–wide entity, which includes
Go–Harvest, as AFA. See, e.g., Certain
Frozen Warmwater Shrimp from the
People’s Republic of China: Notice of
Final Results And Rescission, In Part, of
2004/2006 Antidumping Duty
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Administrative and New Shipper
Reviews, 72 FR 52049 (September 12,
2007). As discussed further below, this
rate has been corroborated.
Corroboration of Facts Available
Section 776(c) of the Act requires that
the Department corroborate, to the
extent practicable, secondary
information on which it relies 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 the rate currently
applicable to all exporters subject to the
PRC–wide rate. The AFA rate in the
current review (i.e., the PRC–wide rate
of 112.81 percent) represents the highest
rate from the petition in the LTFV
investigation. See Notice of Amended
Final Determination of Sales at Less
Than Fair Value and Antidumping Duty
Order: Certain Frozen Warmwater
Shrimp From the People’s Republic of
China, 70 FR 5149 (February 1, 2005).
For purposes of corroboration, the
Department will consider whether that
margin is both reliable and relevant. The
AFA rate we are applying for the current
review was corroborated in the LTFV
investigation. See, e.g., Notice of Final
Determination of Sales at Less Than
Fair Value: Certain Frozen and Canned
Warmwater Shrimp From the People’s
Republic of China, 69 FR 70997
(December 8, 2004). No information has
been presented in the current review
that calls into question the reliability of
this information.
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,
6814 (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.
The information used in calculating this
margin was based on sales and
production data submitted by the
petitioner in the LTFV investigation,
together with the most appropriate
surrogate value information available to
the Department chosen from
submissions by the parties in the LTFV
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Sfmt 4703
investigation, as well as information
gathered by the Department itself.
Furthermore, the calculation of this
margin was subject to comment from
interested parties in the proceeding. 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 112.81 percent rate is both
reliable and relevant, we determine that
it has probative value. Accordingly, we
determine that the calculated rate of
112.81 percent, which is the current
PRC–wide rate, is in accord with the
requirement of section 776(c) that
secondary information be corroborated
to the extent practicable (i.e., that it
have probative value). We have assigned
this AFA rate to exports of the subject
merchandise by the PRC–wide entity.
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 Rate Determination
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.
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
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process by which exporters and
producers may obtain separate rate
status in NME investigations. 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 Notice of 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 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’’).
Absence of De Jure Control
The Department considers the
following de jure criteria in determining
whether an individual company may be
granted a separate rate: (1) an absence of
restrictive stipulations associated with
an individual exporter’s business and
export licenses; (2) any legislative
enactments decentralizing control of
companies; and (3) any other formal
measures by the government
decentralizing control of companies. See
Sparklers, 56 FR at 20589.
In this administrative review, only
Regal and Shantou Longsheng have
placed sufficient evidence on the record
that demonstrate an absence of de jure
control. See Regal’s submission of
October 3, 2008; see also Shantou
Longsheng’s submission of May 30,
2008. The Department has analyzed
such PRC laws as the ‘‘Foreign Trade
Law of the People’s Republic of China’’
and the ‘‘Company Law of the People’s
Republic of China’’ and has found that
they establish an absence of de jure
control. See, e.g., Preliminary Results of
New Shipper Review: Certain Preserved
Mushrooms From the People’s Republic
of China, 66 FR 30695, 30696 (June 7,
2001). We have no information in this
proceeding that would cause us to
reconsider this determination. Thus, we
find that the evidence on the record
supports a preliminary finding of an
absence of de jure government control
based on: (1) an absence of restrictive
stipulations associated with the
exporter’s business license; (2) the legal
authority on the record decentralizing
control over the respondent, as
demonstrated by the PRC laws placed
on the record of this review; and (3)
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15:28 Mar 06, 2009
Jkt 217001
other formal measures by the
government decentralizing control of
companies.
Absence of De Facto Control
As stated in previous cases, there is
some evidence that certain enactments
of the PRC central government have not
been implemented uniformly among
different sectors and/or jurisdictions in
the PRC. See Notice of Final
Determination of Sales at Less Than
Fair Value: Certain Preserved
Mushrooms from the People’s Republic
of China, 63 FR 72255 (December 31,
1998). Therefore, the Department has
determined that an analysis of de facto
control is critical in determining
whether respondents are, in fact, subject
to a degree of government control which
would preclude the Department from
assigning separate rates. The
Department typically considers four
factors in evaluating whether each
respondent is subject to de facto
government control of its export
functions: (1) whether the exporter sets
its own export prices independent of the
government and without the approval of
a government authority; (2) whether the
respondent has the authority to
negotiate and sign contracts, and other
agreements; (3) whether the respondent
has autonomy from the government in
making decisions regarding the
selection of its management; and (4)
whether the respondent retains the
proceeds of its export sales and makes
independent decisions regarding
disposition of profits or financing of
losses. See Silicon Carbide, 59 FR at
22587; Sparklers, 56 FR at 20589.
The Department conducted separate
rate analyses for Regal and Shantou
Longsheng, which have asserted the
following: (1) there is no government
participation in setting export prices; (2)
sales managers and authorized
employees have the authority to create
binding sales contracts; (3) they do not
have to notify any government
authorities of management selections;
(4) there are no restrictions on the use
of export revenue; and (5) they are is
responsible for financing their own
losses. The questionnaire responses of
Regal and Shantou Longsheng do not
indicate that pricing is coordinated
among exporters. During our analysis of
the information on the record, we found
no information indicating the existence
of government control of export
activities. See Regal’s submission of
October 3, 2008; see also Shantou
Longsheng’s submission of May 30,
2008. Consequently, we preliminarily
determine that Regal and Shantou
Longsheng have met the criteria for the
application of a separate rate.
PO 00000
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10031
In the Initiation, we requested that all
companies listed therein wishing to
qualify for separate rate status in this
administrative review 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 482 companies,
and is rescinding the review on five6 of
those 482 companies. In addition, we
are preliminarily rescinding the review
with respect to eleven7 other companies
due to the lack of shipments during the
POR. Thus, including Regal and
Shantou Longsheng, 466 companies
remain subject to this review. Only
Regal and Shantou Longsheng provided,
as appropriate, either a separate rate
application or certification. No other
company listed in the Initiation,
including Go–Harvest discussed above,
has demonstrated its eligibility for
separate rate status in this
administrative review. Therefore, the
Department preliminarily determines
that there were exports of merchandise
under review from PRC exporters that
did not demonstrate their eligibility for
separate rate status. As a result, the
Department is treating these PRC
exporters as part of the PRC–wide
entity, subject to the PRC–wide rate.
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 Scot Fullerton,
Program Manager, Office IX, from Paul
6 These include Yelin Enterprise Co., Ltd. Hong
Kong (the predecessor in interest to Hilltop
International); Yangjiang City Yelin Hoitat Quick
Frozen Seafood Co., Ltd.; Fuqing Yihua Aquatic
Food Co., Ltd.; and Fuqing Minhua Trade Co., Ltd.
7 These include Allied Pacific Group (comprised
of 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.); Gallant Ocean (Nanhai), Ltd.;
Luk Ka Paper Industrial Ltd.; Shantou Yelin Frozen
Seafood Co., Ltd.; and Shantou Yuexing Enterprise
Company.
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Walker, Senior Case Analyst, ‘‘Third
Administrative Review of Frozen
Warmwater Shrimp from the People’s
Republic of China: Surrogate Factor
Valuations for the Preliminary Results,’’
dated concurrently with this notice
(‘‘Surrogate Values Memo’’).
As discussed in the ‘‘NME Country
Status’’ section, the Department
considers the PRC to be an NME
country. The Department determined
that India, Indonesia, the Philippines,
Colombia, and Thailand are countries
comparable to the PRC in terms of
economic development. See the
Department’s letter to all interested
parties, dated October 21, 2008.
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, the Petitioner submitted
surrogate value data for certain, but not
all, FOPs for Thailand on January 16,
2009. However, we note that we are
placing Indian surrogate value
information for all FOPs on the record
of this review concurrently with this
notice, and that the FOPs which are
valued using Indian import statistics are
of a greater HTS specificity than the
Thai import statistics. See Surrogate
Values Memo. Given the above facts, the
Department has selected India as the
primary surrogate country for this
review.
U.S. Price
In accordance with section 772(a) of
the Act, we calculated the export price
(‘‘EP’’) for sales to the United States for
Regal. We calculated EP based on the
price to unaffiliated purchasers in the
United States. In accordance with
section 772(c) of the Act, as appropriate,
we deducted from the starting price to
unaffiliated purchasers foreign inland
freight, foreign brokerage and handling,
customs duties, domestic brokerage and
handling and other movement expenses
incurred. For the services provided by
an NME vendor or paid for using an
NME currency we based the deduction
of these movement charges on surrogate
values. See Surrogate Values Memo for
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15:28 Mar 06, 2009
Jkt 217001
details regarding the surrogate values for
movement expenses. For expenses
provided by a market economy vendor
and paid in U.S. dollars, we used the
actual cost per kilogram of the freight.
See Regal Analysis Memo.
Normal Value
Methodology
Section 773(c)(1) 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 FOP 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 Regal 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).
For these preliminary results, in
accordance with the Department’s
practice, we used data from the Indian
Import Statistics in order to calculate
surrogate values for most of Regal’s
material inputs. In selecting the best
available information for valuing FOPs
in accordance with section 773(c)(1) of
the Act, the Department’s practice is to
select, to the extent practicable,
surrogate values which are non–export
average values, most contemporaneous
with the POR, product–specific, and
tax–exclusive. See, e.g., Notice of
Preliminary Determination of Sales at
Less Than Fair Value, Negative
Preliminary Determination of Critical
Circumstances and Postponement of
Final Determination: Certain Frozen
and Canned Warmwater Shrimp From
the Socialist Republic of Vietnam, 69 FR
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Sfmt 4703
42672, 42682 (July 16, 2004), unchanged
in Final Determination of Sales at Less
Than Fair Value: Certain Frozen and
Canned Warmwater Shrimp From the
Socialist Republic of Vietnam, 69 FR
71005 (December 8, 2004). The record
shows that the Indian import statistics
represent import data that are
contemporaneous with the POR,
product–specific, and tax–exclusive.
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
OECD Stat by the Organization for
Economic Development and
Cooperation.
To value shrimp larvae for Regal,
which has an integrated production
process, the Department valued shrimp
larvae using an average of the price
derived from the Nekkanti Sea Foods
Ltd. financial statement for 04/2002 03/2003, and the price quoted in Fishing
Chimes, which is an Indian seafood
industry publication. However, because
the shrimp larvae prices are dated
before the POR, we inflated the price to
be contemporaneous with the POR
using WPI.
We valued electricity using price data
for small, medium, and large industries,
as published by the Central Electricity
Authority of the Government of India in
its publication titled Electricity Tariff &
Duty and Average Rates of Electricity
Supply in India, dated July 2006. These
electricity rates represent actual
country–wide, publicly–available
information on tax–exclusive electricity
rates charged to industries in India.
Since the rates are dated before the POR,
we inflated the values to be
contemporaneous with the POR using
WPI. See Surrogate Values Memo.
Consistent with 19 CFR 351.408(c)(3),
we valued direct, indirect, and packing
labor, using the most recently calculated
regression–based wage rate, which relies
on 2005 data. This wage rate can
currently be found on the Department’s
website on Import Administration’s
home page, Import Library, Expected
Wages of Selected NME Countries,
revised in May 2008, ia.ita.doc.gov/
wages/05wages/05wages–051608.html.
The source of these wage–rate data on
the Import Administration’s web site is
the Yearbook of Labour Statistics 2002,
ILO (Geneva: 2002), Chapter 5B: Wages
in Manufacturing. Because this
regression–based wage rate does not
separate the labor rates into different
skill levels or types of labor, we have
applied the same wage rate to all skill
levels and types of labor reported by
Regal.
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To value water, the Department used
data from the Maharashtra Industrial
Development Corporation
(www.midindia.orgwww.midcindia.org)
since it includes a wide range of
industrial water tariffs. This source
provides 386 industrial water rates
within the Maharashtra province from
June 2003: 193 of the water rates were
for the ‘‘inside industrial areas’’ usage
category and 193 of the water rates were
for the ‘‘outside industrial areas’’ usage
category. Because the value was not
contemporaneous with the POR, we
adjusted the rate for inflation.
We valued truck freight expenses
using a per–unit average rate calculated
from data on the Info Banc web site:
www.infobanc.com/logistics/
logtruck.htm. The logistics section of
this website contains inland freight
truck rates between many large Indian
cities. Since this value is dated after the
POR, we deflated the values to be
contemporaneous with the POR using
WPI. See Surrogate Values Memo.
We valued brokerage and handling
using a simple average of the brokerage
and handling costs that were reported in
public submissions that were filed in
three antidumping duty cases. See
Surrogate Values Memo. Specifically,
we averaged the public brokerage and
handling expenses reported by (a) Agro
Dutch Industries Ltd. in the
antidumping duty administrative review
of certain preserved mushrooms from
India, (b) Kejirwal Paper Ltd. in the
LTFV investigation of certain lined
paper products from India, and (c) Essar
Steel in the antidumping duty
administrative review of hot–rolled
carbon steel flat products from India.8
See Certain Preserved Mushrooms From
India: Final Results of Antidumping
Duty Administrative Review, 71 FR
10646 (March 2, 2006); Notice of
Preliminary Determination of Sales at
Less Than Fair Value, Postponement of
Final Determination, and Affirmative
Preliminary Determination of Critical
Circumstances in Part: Certain Lined
Paper Products From India, 71 FR 19706
(April 17, 2006) (unchanged in Notice of
Final Determination of Sales at Less
Than Fair Value, and Negative
Determination of Critical
Circumstances: Certain Lined Paper
Products from India, 71 FR 45012
(August 8, 2006)), and Certain Hot–
Rolled Carbon Steel Flat Products From
India: Preliminary Results of
Antidumping Duty Administrative
Review, 71 FR 2018, 2021 (January 12,
2006) (unchanged in Certain Hot–Rolled
8 These data have been placed on the record of
this case and can be found in attachments to the
Factors Memo.
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10033
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
Preliminary Results of the Review
for filing case briefs. See 19 CFR
351.309(d). The Department urges
The Department has determined that
interested parties to provide an
the following preliminary dumping
executive summary of each argument
margins exist for the period February 1,
contained within the case briefs and
2007, through January 31, 2008:
rebuttal briefs.
The Department will issue the final
HONEY FROM THE PRC
results of this administrative review,
which will include the results of its
Manufacturer/Exporter
Margin
analysis of issues raised in any such
Regal ............................
26.30% comments, within 120 days of
Shantou Longsheng .....
26.30% publication of these preliminary results,
PRC–wide Entity 9 ........
112.81% pursuant to section 751(a)(3)(A) of the
9 The PRC-wide entity includes the 464
Act.
Carbon Steel Flat Products From India:
Final Results of Antidumping
Administrative Review, 71 FR 40694
(July 18, 2006)). The Department
derived the average per–unit amount
from each source and adjusted each
average rate for inflation. Finally, the
Department averaged the average per–
unit amounts to derive an overall
average rate for the POR.
To value factory overhead, sales,
general and administrative expenses,
and profit, we relied upon publicly
available information in the 2007–2008
annual report of Falcon Marine Exports
Ltd., an integrated Indian producer of
subject merchandise. See Surrogate
Values Memo.
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.
companies currently under review that have
not established their entitlement to a separate
rate, including Zhanjiang Go-Harvest Aquatic
Products Co., Ltd.
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
PO 00000
Frm 00055
Fmt 4703
Sfmt 4703
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 Regal 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).
E:\FR\FM\09MRN1.SGM
09MRN1
10034
Federal Register / Vol. 74, No. 44 / Monday, March 9, 2009 / Notices
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 calculate an
assessment rate based on the weighted
average of the cash deposit rates
calculated for the companies selected
for individual review pursuant to
section 735(c)(5)(B) of the Act.
For those companies for which this
review has been preliminarily
rescinded,10 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.
For Yelin/Hilltop, antidumping duties
shall be assessed 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). The Department will
issue appropriate assessment
instructions directly to CBP 15 days
after publication of this notice.
Cash Deposit Requirements
dwashington3 on PROD1PC60 with NOTICES
The following cash–deposit
requirements will be effective upon
publication of these final results for
shipments of the subject merchandise
entered, or withdrawn from warehouse,
for consumption on or after the
publication date of these final results, as
provided by section 751(a)(2)(C) of the
Act: (1) for subject merchandise
exported by Regal and Shantou
10 These include Allied Pacific Group (comprised
of 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.); Gallant Ocean (Nanhai), Ltd.;
Luk Ka Paper Industrial Ltd.; Shantou Yelin Frozen
Seafood Co., Ltd.; and Shantou Yuexing Enterprise
Company.
VerDate Nov<24>2008
18:25 Mar 06, 2009
Jkt 217001
Longsheng the cash deposit rate will be
26.30 percent; (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 of 112.81
percent; 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.
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: March 2, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import
Administration.
[FR Doc. E9–4900 Filed 3–6–09; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–XN21
Endangered Species; File No. 14272
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; receipt of application.
SUMMARY: Notice is hereby given that
Lawrence Wood, Marinelife Center of
Juno Beach, 14200 U.S. Hwy. #1, Juno
Beach, Florida, 33408, has applied in
due form for a permit to take hawksbill
(Eretmochelys imbricata) sea turtles for
purposes of scientific research.
DATES: Written, telefaxed, or e-mail
comments must be received on or before
April 8, 2009.
ADDRESSES: The application and related
documents are available for review by
selecting ‘‘Records Open for Public
PO 00000
Frm 00056
Fmt 4703
Sfmt 4703
Comment’’ from the Features box on the
Applications and Permits for Protected
Species (APPS) home page, https://
apps.nmfs.noaa.gov/index.cfm, and
then selecting File No. 14272 from the
list of available applications. These
documents are also available for review
upon written request or by appointment
in the following offices:
Permits, Conservation and Education
Division, Office of Protected Resources,
NMFS, 1315 East-West Highway, Room
13705, Silver Spring, MD 20910; phone
(301)713–2289; fax (301)427–2521; and
Southeast Region, NMFS, 263 13th
Avenue South, St. Petersburg, FL 33701;
phone (727)824–5312; fax (727)824–
5309.
Written comments or requests for a
public hearing on this application
should be mailed to the Chief, Permits,
Conservation and Education Division,
F/PR1, Office of Protected Resources,
NMFS, 1315 East-West Highway, Room
13705, Silver Spring, MD 20910. Those
individuals requesting a hearing should
set forth the specific reasons why a
hearing on this particular request would
be appropriate.
Comments may also be submitted by
facsimile at (301)427–2521, provided
the facsimile is confirmed by hard copy
submitted by mail and postmarked no
later than the closing date of the
comment period.
Comments may also be submitted by
e-mail. The mailbox address for
providing e-mail comments is
NMFS.Pr1Comments@noaa.gov. Include
in the subject line of the e-mail
comment the following document
identifier: File No. 14272.
FOR FURTHER INFORMATION CONTACT:
Patrick Opay or Malcolm Mohead,
(301)713–2289.
SUPPLEMENTARY INFORMATION: The
subject permit is requested under the
authority of the Endangered Species Act
of 1973, as amended (ESA; 16 U.S.C.
1531 et seq.) and the regulations
governing the taking, importing, and
exporting of endangered and threatened
species (50 CFR 222–226).
The proposed research would
continue to describe the abundance and
movements of an aggregation of
hawksbill sea turtles found on the
barrier reefs of Palm Beach County,
Florida. Up to 75 animals would be
annually captured, measured, flipper
and passive integrated transponder
tagged, marked, photographed, tissue
and blood sampled, and released. Up to
10 of these animals would also have
satellite transmitters attached to their
carapace. The permit would be issued
for five years.
E:\FR\FM\09MRN1.SGM
09MRN1
]]>Agencies
[Federal Register Volume 74, Number 44 (Monday, March 9, 2009)]
[Notices]
[Pages 10026-10034]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-4900]
[[Page 10026]]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
A-570-893
Third Administrative Review of Frozen Warmwater Shrimp from the
People's Republic of China: Preliminary Results and Partial Rescission
of 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, 2007,
through January 31, 2008. As discussed below, we preliminarily
determine that certain respondents in this review made sales in the
United States at prices below normal value (``NV''). If these
preliminary results are adopted in our final results of review, we will
instruct U.S. Customs and Border Protection (``CBP'') to assess
antidumping duties on entries of subject merchandise during the POR for
which importer-specific assessment rates are above de minimis.
EFFECTIVE DATE: March 9, 2009.
FOR FURTHER INFORMATION CONTACT: Paul Walker, 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) 482-0413.
SUPPLEMENTARY INFORMATION:
Background
The Department received timely requests from both Petitioners\1\
and certain PRC companies, 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 7, 2008, the
Department initiated an administrative review of 482 producers/
exporters of subject merchandise from the PRC.\2\ See Notice of
Initiation of Administrative Reviews of the Antidumping Duty Orders on
Frozen Warmwater Shrimp from the Socialist Republic of Vietnam and the
People's Republic of China, 73 FR 18739 (April 7, 2008)
(``Initiation'').
---------------------------------------------------------------------------
\1\ The petitioners are the members of the Ad Hoc Shrimp Trade
Action Committee (hereinafter referred to as ``Petitioners'').
\2\ See Initiation for a listing of these companies.
---------------------------------------------------------------------------
Respondent Selection
On June 16, 2008, in accordance with section 777A(c)(2) of the
Tariff Act of 1930, as amended (``Act''), the Department selected
Hilltop International (``Hilltop'') and Zhanjiang Go-Harvest Aquatic
Products Co., Ltd. (``Go-Harvest'') for individual examination in this
review, since they were the two largest exporters by volume during the
POR, based on CBP data of U.S. imports. See Memorandum to James Doyle,
Director, Office IX, from Susan Pulongbarit, International Trade
Analyst, ``2007-2008 Antidumping Duty Administrative Review of Certain
Frozen Warmwater Shrimp from the People's Republic of China: Selection
of Respondents for Individual Review,'' dated June 16, 2008. On July 1,
2008, the Department issued antidumping duty questionnaires to Hilltop
and Go-Harvest.
On July 3, 2008, Hilltop withdrew its request for review, and on
July 7, 2008, Petitioners withdrew their request for review of Yelin
Enterprise Co., Ltd. Hong Kong (the predecessor in interest to Hilltop
International); Yangjiang City Yelin Hoitat Quick Frozen Seafood Co.,
Ltd.; Fuqing Yihua Aquatic Food Co., Ltd.; and Fuqing Minhua Trade Co.,
Ltd. (collectively referred to hereafter as ``Hilltop/Yelin''). Since
both withdrawal requests were timely, and no other party requested a
review of Hilltop/Yelin, in accordance with section 351.213(d)(1) of
the Department's regulations, the Department is rescinding the
administrative review with respect to Hilltop/Yelin. See the ``Partial
Recission of Review'' section below. Consequently, on August 25, 2008,
in accordance with section 777A(c)(2) of the Act, the Department
selected Zhanjiang Regal Integrated Marine Resources Co., Ltd.
(``Regal'') for individual examination in this review, because Regal
was the next largest exporter by volume during the POR, based on CBP
data of U.S. imports. See Memorandum to James Doyle, Director, Office
IX, from Erin Begnal, Senior International Trade Analyst, ``2007-2008
Antidumping Duty Administrative Review of Certain Frozen Warmwater
Shrimp from the People's Republic of China: Selection of Additional
Mandatory Respondent,'' dated August 25, 2008. On August 29, 2008, the
Department issued the antidumping duty questionnaire to Regal.
Regal
Between October 3, 2008, and January 21, 2009, Regal responded to
the Department's original and supplemental questionnaires. Pursuant to
19 CFR 351.307(b)(iv), from January 19-23, 2009, the Department
conducted verification of Regal's questionnaire responses. See
Memorandum to the File through Scot Fullerton, Program Manager, Office
IX, from Paul Walker, Senior Case Analyst, ``Third Administrative
Review of Frozen Warmwater Shrimp from the People's Republic of China:
Verification of Zhanjiang Regal Integrated Marine Resources Co.,
Ltd.,'' dated concurrently with this notice (``Regal Verification
Report'').
Go-Harvest
In response to the Department's July 1, 2008, questionnaire, on
August 8, 2008, Go-Harvest submitted a certification to the Department
stating that it had no shipments of subject merchandise during the POR.
However, as noted above in the ``Respondent Selection'' section, the
Department placed information on the record obtained from CBP which
showed that shipments of subject merchandise had been made by Go-
Harvest during the POR. On October 22, 2008, the Department issued a
second antidumping duty questionnaire to Go-Harvest. On November 5,
2008, Go-Harvest submitted a second no shipment certification. On
November 12, 2008, the Department issued Go-Harvest a third
questionnaire to resolve the discrepancies between the CBP data and Go-
Harvest's no shipment certifications of August 8, 2008, and November 5,
2008. On November 17, 2008, Go-Harvest submitted a letter stating that
it would not respond to the Department's questionnaire of November 12,
2008. On November 19, 2008, the Department provided Go-Harvest an
additional opportunity to respond to the Department's November 12,
2008, questionnaire. Go-Harvest made no response to this additional
opportunity.
Separate Rates
On May 30, 2008, we received a separate rate application from
Shantou Longsheng Aquatic Product Foodstuff Co., Ltd. (``Shantou
Longsheng''). Go-Harvest did not demonstrate eligibility for a separate
rate during the course of this proceeding. Thus, Go-Harvest will be
considered part of the PRC-wide entity for purposes of this review.
Rescission of Reviews
As noted above, on July 7, 2008, the Petitioners made a timely
withdrawal of review request on Hilltop/Yelin. Between April 17, 2008,
and April 30, 2008, the following companies submitted no shipment
certifications:
[[Page 10027]]
Allied Pacific Group (comprised of Allied Pacific Food (Dalian) Co.,
Ltd.; Allied Pacific Aquatic Products (Zhanjiang) Co., Ltd.;\3\
Zhanjiang Allied Pacific Aquaculture Co., Ltd.; Allied Pacific (H.K.)
Co., Ltd.; and King Royal Investments Ltd.); Gallant Ocean (Nanhai),
Ltd.; Luk Ka Paper Industrial Ltd.; Shantou Yelin Frozen Seafood Co.,
Ltd.; and Shantou Yuexing Enterprise Company.
---------------------------------------------------------------------------
\3\ The Department in its initiation notice included ``Allied
Pacific Aquatic Products (Zhangjiang) Co., Ltd.'' due to the
Petitioners' misspelling of the company's name in its review
request. See Letter from Dewey & LeBouef to the Secretary of
Commerce, ``Request for Administrative Reviews,'' (Feb. 29, 2008).
In its April 17, 2008, letter, Allied Pacific Aquatic Products
(Zhanjiang) Co., Ltd. clarified the correct spelling of its name.
See Letter from Trade Pacific to the Secretary of Commerce, ``Frozen
Warmwater Shrimp from the People's Republic of China.'' The
Department notes that the review is preliminarily rescinded for both
the proper name and the misspelled name of this company.
---------------------------------------------------------------------------
Surrogate Country and Surrogate Values
On October 21, 2008, the Department sent interested parties a
letter requesting comments on the surrogate country and information
pertaining to valuing factors of production (``FOPs''). On January 16,
2009, Petitioners submitted surrogate value comments regarding various
Thai sources. No other interested party submitted comments on the
surrogate country or information pertaining to valuing FOPs.
Case Schedule
On October 8, 2008, 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 March 2, 2008. See Certain Frozen Warmwater Shrimp from
Ecuador, India, the People's Republic of China, and Thailand: Notice of
Extension of Time Limits for the Preliminary Results of the Third
Administrative Reviews, 73 FR 58931 (October 8, 2008).
Partial Rescission of Review
Final Partial Rescission
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an
administrative review, in whole or in part, if a party who requested
the review withdraws the request within ninety days of the date of
publication of notice of initiation of the requested review. Because
the Petitioner's and Hilltop's withdrawals of requests for review were
timely and no other party requested a review of the following
companies, in accordance with 19 CFR 351.213(d)(1), we are rescinding
this review with respect to Hilltop/Yelin.
Preliminary Partial Rescission
As discussed in the ``Supplementary Information'' section above,
several companies indicated they did not export PRC origin shrimp to
the United States during the POR. In order to corroborate these
submissions, we reviewed PRC shrimp shipment data obtained from CBP,
and found no discrepancies with the statements made by these firms.
Therefore, for the reasons mentioned above, we are preliminarily
rescinding the administrative review with respect to: Allied Pacific
Group (comprised of 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.); Gallant Ocean (Nanhai), Ltd.; Luk Ka
Paper Industrial Ltd.; Shantou Yelin Frozen Seafood Co., Ltd.; and
Shantou Yuexing Enterprise Company because each reported having made no
shipments of subject merchandise during the POR, and the Department
found no information to indicate otherwise. 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) (``Third Fish
Fillets Review'').
Scope of the Order
The scope of this 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 this investigation, 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 this investigation. 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 this investigation.
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 this investigation are currently classified
under the following HTS subheadings:
[[Page 10028]]
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 this investigation
is dispositive.
Facts Available
Sections 776(a)(1) and 776(a)(2) of the Act, provide that, if
necessary information is not available or on the record, or if an
interested party: (A) withholds information that has been requested by
the Department; (B) fails to provide such information in a timely
manner or in the form or manner requested subject to sections 782(c)(1)
and (e) of the Act; (C) significantly impedes a proceeding under the
antidumping statute; or (D) provides such information but the
information cannot be verified, the Department shall, subject to
subsection 782(d) of the Act, use facts otherwise available in reaching
the applicable determination.
Section 782(c)(1) of the Act provides that if an interested party
``promptly after receiving a request from {the Department{time} for
information, notifies {the Department{time} that such party is unable
to submit the information requested in the requested form and manner,
together with a full explanation and suggested alternative forms in
which such party is able to submit the information,'' the Department
may modify the requirements to avoid imposing an unreasonable burden on
that party.
Section 782(d) of the Act provides that, if the Department
determines that a response to a request for information does not comply
with the request, the Department will inform the person submitting the
response of the nature of the deficiency and shall, to the extent
practicable, provide that person the opportunity to remedy or explain
the deficiency. If that person submits further information that
continues to be unsatisfactory, or this information is not submitted
within the applicable time limits, the Department may, subject to
section 782(e) of the Act, disregard all or part of the original and
subsequent responses, as appropriate.
Section 782(e) of the Act states that the Department shall not
decline to consider information deemed ``deficient'' under section
782(d) if: (1) the information is submitted by the established
deadline; (2) the information can be verified; (3) the information is
not so incomplete that it cannot serve as a reliable basis for reaching
the applicable determination; (4) the interested party has demonstrated
that it acted to the best of its ability in providing the information
and meeting the requirements established by the Department; and (5) the
information can be used without undue difficulties.
Furthermore, section 776(b) of the Act states that if the
Department ``finds that an interested party has failed to cooperate by
not acting to the best of its ability to comply with a request for
information from the administering authority or the Commission, the
administering authority or the Commission . . . , in reaching the
applicable determination under this title, may use an inference that is
adverse to the interests of that party in selecting from among the
facts otherwise available.'' See also Statement of Administrative
Action accompanying the Uruguay Round Agreements Act, H.R. Rep. No.
103-316 at 870 (1994) (``SAA''). Adverse inferences are appropriate
``to ensure that the party does not obtain a more favorable result by
failing to cooperate than if it had cooperated fully.'' Id. An adverse
inference may include reliance on information derived from the
petition, the final determination in the investigation, any previous
review, or any other information placed on the record. See section
776(b) of the Act.
Regal's Water Consumption
For these preliminary results, in accordance with sections
776(a)(1) and 776(a)(2)(B) of the Act, we have determined that the use
of facts available is appropriate for Regal's consumption of water. As
noted above, consistent with section 782(c)(1) of the Act, if an
interested party promptly notifies the Department that it is unable to
submit the information in the requested form and manner, together with
a full explanation and suggested alternative forms in which such party
is able to submit the information, the Department will take into
consideration the ability of the party to submit the information in the
requested form and manner and may modify such requirements to the
extent necessary to avoid imposing an unreasonable burden on that
party.
Consistent with section 773(c)(1)(B) of the Act, the Department
values FOPs that a respondent uses to produce the subject merchandise.
See, e.g., Third Fish Fillets Review at Comment 8E. In past cases the
Department has specifically stated that water which is pumped from a
well, regardless of whether the respondent incurs a cost for that
water, will be treated as a FOP and valued accordingly. See, e.g.,
Fresh Garlic from the People's Republic of China: Final Results and
Partial Rescission of the Eleventh Administrative Review and New
Shipper Reviews, 72 FR 34438 (June 22, 2007) at Comment 8. In its
questionnaire responses, Regal stated that it used water during the
farming and processing of shrimp. Regal also stated that it did not
track the amount of water used because it incurred no cost for pumping
the water from either wells (at the processing factory) or the ocean
(at the farms). At verification the Department found no evidence that
Regal tracks the amount of water it consumes in its normal course of
business. See Regal Verification Report at 2. However, at verification
Regal was able to provide estimates of the water it consumed. Id.
Because information regarding the actual amount of water consumed is
not available and Regal was unable to provide the data regarding actual
water consumption, and in the form and manner required, we are applying
facts available to Regal's water consumption in accordance with
sections 776(a)(1), 776(a)(2)(B) and 782(c)(1) of the Act.
As noted above, Regal consumes water at its shrimp farms. As facts
available, we are applying the average amount of water consumed at the
farms, as estimated by Regal's farming production manager, to the NV.
See Regal Verification Report at 2. In addition, Regal uses water at
its processing factory to make ice, to clean the shrimp during the
production process, and to pack the shrimp. Also, as facts available,
to account for the ice consumed by Regal at its processing plant, we
are applying the average amount of ice reported by Regal\5\ in
transporting the shrimp form the farm to the factory. See Regal's
October 23, 2008 submission. In addition, as facts available, to
calculate the water used to pack the shrimp we are deducting from the
gross weight of the sale, the weight of the shrimp and packing.
Moreover, we are using an average of these water weights to estimate
the amount of water Regal used to wash the shrimp during the production
process. Because these usage rates are proprietary, see Memorandum to
the File, through Scot Fullerton, Program Manager, Office IX, from Paul
Walker, Senior Analyst, ``Third Administrative Review of Frozen
Warmwater Shrimp from the People's Republic of China: Zhanjiang Regal
[[Page 10029]]
Integrated Marine Resources Co., Ltd.,'' dated concurrently with this
notice (``Regal Analysis Memo'') for further details.
---------------------------------------------------------------------------
\5\ Regal purchases ice to keep the shrimp fresh as they are
transported from the farm to the factory. Regal reported an FOP
usage rate for this purchased ice.
---------------------------------------------------------------------------
Moreover, we note that for future reviews of this order, Regal must
comply with all requests for information by the Department and should,
therefore, maintain the appropriate records to comply with these
requests. If Regal, or any other Respondents, are unable to comply with
such requests, the Department may resort to the use of adverse facts
available (``AFA'') absent the information on the record that is
required by the Department to conduct its proceedings in accordance
with section 776(b) of the Act.
Regal's Unreported FOP and Movement Expense
For these preliminary results, in accordance with section
776(a)(2)(A) of the Act, we have determined that the use of facts
available is appropriate for Regal's unreported consumption of diesel
oil and movement expenses it paid for filing U.S. Food and Drug
Administration (``USFDA'') paperwork in the United States for certain
sales.
Regal did not report diesel oil consumption or certain movement
expenses in its submissions of FOP and sales data dated October 3,
2008, December 16, 2008, and January 21, 2009. At verification, Regal
attempted to submit data regarding its diesel oil consumption and other
movement expenses as minor corrections. However, the Department did not
accept this new information as minor corrections. See Regal
Verification Report at 2. Unlike water, the usage of which is not
currently recorded in Regal's books and records, we note diesel oil
consumption and this particular movement expense are recorded in
Regal's books and records and were readily available to Regal. Because
Regal did not report this data in a timely manner, and failed to report
its diesel oil consumption and the movement expense to the Department,
despite multiple opportunities to provide complete FOP and sales data,
we are applying facts available to Regal's unreported diesel oil
consumption and movement expense pursuant to section 776(a)(2)(A) of
the Act.
As noted above, section 776(b) of the Act states that if the
Department ``finds that an interested party has failed to cooperate by
not acting to the best of its ability to comply with a request for
information from the administering authority or the Commission, the
administering authority or the Commission , in reaching the applicable
determination under this title, may use an inference that is adverse to
the interests of that party in selecting from among the facts otherwise
available.'' See also SAA accompanying the URAA at 870. An adverse
inference may include reliance on information derived from the
Petition, the final determination in the investigation, any previous
review, or any other information placed on the record. See section
776(b) of the Act.
In this instance, Regal failed to act to the best of its ability to
comply with the Department's repeated requests for information
regarding all of its FOPs and sales expenses, i.e., diesel oil and the
movement expenses it paid for filing USFDA paperwork. See, e.g., the
Department's letter dated August 29, 2008, at c-25 and d-8, where we
asked Regal to report all U.S. movement expenses and all energy inputs,
respectively. Only at verification did it become clear that these two
previously unreported costs existed. As noted above, these factors are
reported in Regal's books and records and were readily available to
Regal. Regal did not indicate that it was unable to submit complete FOP
and sales information in the requested form and manner. Therefore, we
find that Regal failed to cooperate to the best of its ability and we
are applying AFA to this FOP and movement expense incurred by Regal in
these preliminary results, pursuant to section 776(b) of the Act. As
partial AFA for Regal's diesel oil FOP, we are using the highest single
monthly usage rate for diesel oil and applying this monthly usage rate
to all months during the POR. In addition, as partial AFA for Regal's
movement expense, we are using the highest single fee incurred by Regal
and applying this fee to all sales invoices for which this fee was
incurred.
Go-Harvest/PRC-wide Entity
As noted above in the ``Supplementary Information'' section, the
Department selected Go-Harvest for individual examination in this
review, based on CBP data of U.S. imports which showed that Go-Harvest
was one of the largest exporters by volume during the POR. Although Go-
Harvest submitted certifications that it had no shipments, it refused
to answer our questions regarding the discrepancies between its no
shipments claims and the CBP data. Accordingly, based on the CBP data,
and Go-Harvest's failure to refute that data, we find that Go-Harvest
made shipments of subject merchandise during the POR, and consequently,
as a selected respondent, was required to answer the full
questionnaire. By not responding to the Department's questionnaire, Go-
Harvest failed to demonstrate that it qualifies for separate rate
status. Accordingly, we consider Go-Harvest to be a part of the PRC-
wide entity.
We find that the PRC-wide entity, including Go-Harvest, withheld
requested information, failed to provide information in a timely manner
and in the form requested, and significantly impeded this proceeding.
Moreover, by refusing to answer the Department's questionnaire, the
PRC-wide entity, including Go-Harvest, failed to cooperate to the best
of its ability. Therefore, the Department must rely on adverse facts
otherwise available in order to determine a margin for the PRC-wide
entity, pursuant to section 776(a)(2)(A), (B), (C) and 776(b) of the
Act. See e.g., Non-Malleable Cast Iron Pipe Fittings from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review, 71 FR 69546 (December 1, 2006) and accompanying Issues and
Decision Memorandum at Comment 1. See also Certain Frozen Warmwater
Shrimp from the Socialist Republic of Vietnam: Preliminary Results of
the First Administrative Review and New Shipper Review, 72 FR 10689,
10692 (March 9, 2007) (decision to apply total AFA to the NME-wide
entity unchanged in Certain Frozen Warmwater Shrimp From the Socialist
Republic of Vietnam: Final Results of the First Antidumping Duty
Administrative Review and First New Shipper Review, 72 FR 52052
(September 12, 2007) (``First Vietnamese Shrimp Review''). By doing so,
we ensure that the companies that are part of the PRC-wide entity will
not obtain a more favorable result by failing to cooperate than had
they cooperated fully in this review.
In deciding which facts to use as AFA, section 776(b) of the Act
and 19 CFR 351.308(c)(1) authorize the Department to rely on
information derived from (1) the petition, (2) a final determination in
the investigation, (3) any previous review or determination, or (4) any
information placed on the record. In reviews, the Department normally
selects, as AFA, the highest rate on the record of any segment of the
proceeding. See, e.g., Certain Steel Nails from the People's Republic
of China: Final Determination of Sales at Less Than Fair Value and
Partial Affirmative Determination of Critical Circumstances, 73 FR
33977 (June 16, 2008). The Court of International Trade (``CIT'') and
the Federal Circuit have consistently upheld the Department's practice
in this regard. See Rhone
[[Page 10030]]
Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed. Circ. 1990)
(``Rhone Poulenc''); NSK Ltd. v. United States, 346 F. Supp. 2d 1312,
1335 (CIT 2004) (upholding a 73.55 percent total AFA rate, the highest
available dumping margin from a different respondent in a LTFV
investigation); see also Kompass Food Trading Int'l v. United States,
24 CIT 678, 689 (2000) (upholding a 51.16 percent total AFA rate, the
highest available dumping margin from a different, fully cooperative
respondent); and Shanghai Taoen International Trading Co., Ltd. v.
United States, 360 F. Supp 2d 1339, 1348 (CIT 2005) (upholding a 223.01
percent total AFA rate, the highest available dumping margin from a
different respondent in a previous administrative review).
The Department's practice when selecting an adverse rate from among
the possible sources of information is to ensure that the margin is
sufficiently adverse ``as to effectuate the purpose of the facts
available role to induce respondents to provide the Department with
complete and accurate information in a timely manner.'' See Static
Random Access Memory Semiconductors from Taiwan; Final Determination of
Sales at Less than Fair Value, 63 FR 8909, 8932 (February 23, 1998).
The Department's practice also ensures ``that the party does not obtain
a more favorable result by failing to cooperate than if it had
cooperated fully.'' See SAA at 870; see also Final Determination of
Sales at Less than Fair Value: Certain Frozen and Canned Warmwater
Shrimp from Brazil, 69 FR 76910, 76912 (December 23, 2004); D&L Supply
Co. v. United States, 113 F. 3d 1220, 1223 (Fed. Cir. 1997). In
choosing the appropriate balance between providing respondents with an
incentive to respond accurately and imposing a rate that is reasonably
related to the respondent's prior commercial activity, selecting the
highest prior margin ``reflects a common sense inference that the
highest prior margin is the most probative evidence of current margins,
because, if it were not so, the importer, knowing of the rule, would
have produced current information showing the margin to be less.''
Rhone Poulenc, 899 F.2d at 1190. Consistent with the statute, court
precedent, and its normal practice, the Department has assigned the
rate of 112.81 percent, the highest rate on the record of any segment
of the proceeding, to the PRC-wide entity, which includes Go-Harvest,
as AFA. See, e.g., Certain Frozen Warmwater Shrimp from the People's
Republic of China: Notice of Final Results And Rescission, In Part, of
2004/2006 Antidumping Duty Administrative and New Shipper Reviews, 72
FR 52049 (September 12, 2007). As discussed further below, this rate
has been corroborated.
Corroboration of Facts Available
Section 776(c) of the Act requires that the Department corroborate,
to the extent practicable, secondary information on which it relies 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 the rate currently applicable to all exporters subject to the PRC-
wide rate. The AFA rate in the current review (i.e., the PRC-wide rate
of 112.81 percent) represents the highest rate from the petition in the
LTFV investigation. See Notice of Amended Final Determination of Sales
at Less Than Fair Value and Antidumping Duty Order: Certain Frozen
Warmwater Shrimp From the People's Republic of China, 70 FR 5149
(February 1, 2005).
For purposes of corroboration, the Department will consider whether
that margin is both reliable and relevant. The AFA rate we are applying
for the current review was corroborated in the LTFV investigation. See,
e.g., Notice of Final Determination of Sales at Less Than Fair Value:
Certain Frozen and Canned Warmwater Shrimp From the People's Republic
of China, 69 FR 70997 (December 8, 2004). No information has been
presented in the current review that calls into question the
reliability of this information.
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, 6814
(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. The information used in calculating this margin was based on
sales and production data submitted by the petitioner in the LTFV
investigation, together with the most appropriate surrogate value
information available to the Department chosen from submissions by the
parties in the LTFV investigation, as well as information gathered by
the Department itself. Furthermore, the calculation of this margin was
subject to comment from interested parties in the proceeding. 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 112.81 percent rate is both reliable and relevant, we
determine that it has probative value. Accordingly, we determine that
the calculated rate of 112.81 percent, which is the current PRC-wide
rate, is in accord with the requirement of section 776(c) that
secondary information be corroborated to the extent practicable (i.e.,
that it have probative value). We have assigned this AFA rate to
exports of the subject merchandise by the PRC-wide entity.
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 Rate Determination
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. 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
[[Page 10031]]
process by which exporters and producers may obtain separate rate
status in NME investigations. 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 Notice of 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 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'').
Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) an absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) any other
formal measures by the government decentralizing control of companies.
See Sparklers, 56 FR at 20589.
In this administrative review, only Regal and Shantou Longsheng
have placed sufficient evidence on the record that demonstrate an
absence of de jure control. See Regal's submission of October 3, 2008;
see also Shantou Longsheng's submission of May 30, 2008. The Department
has analyzed such PRC laws as the ``Foreign Trade Law of the People's
Republic of China'' and the ``Company Law of the People's Republic of
China'' and has found that they establish an absence of de jure
control. See, e.g., Preliminary Results of New Shipper Review: Certain
Preserved Mushrooms From the People's Republic of China, 66 FR 30695,
30696 (June 7, 2001). We have no information in this proceeding that
would cause us to reconsider this determination. Thus, we find that the
evidence on the record supports a preliminary finding of an absence of
de jure government control based on: (1) an absence of restrictive
stipulations associated with the exporter's business license; (2) the
legal authority on the record decentralizing control over the
respondent, as demonstrated by the PRC laws placed on the record of
this review; and (3) other formal measures by the government
decentralizing control of companies.
Absence of De Facto Control
As stated in previous cases, there is some evidence that certain
enactments of the PRC central government have not been implemented
uniformly among different sectors and/or jurisdictions in the PRC. See
Notice of Final Determination of Sales at Less Than Fair Value: Certain
Preserved Mushrooms from the People's Republic of China, 63 FR 72255
(December 31, 1998). Therefore, the Department has determined that an
analysis of de facto control is critical in determining whether
respondents are, in fact, subject to a degree of government control
which would preclude the Department from assigning separate rates. The
Department typically considers four factors in evaluating whether each
respondent is subject to de facto government control of its export
functions: (1) whether the exporter sets its own export prices
independent of the government and without the approval of a government
authority; (2) whether the respondent has the authority to negotiate
and sign contracts, and other agreements; (3) whether the respondent
has autonomy from the government in making decisions regarding the
selection of its management; and (4) whether the respondent retains the
proceeds of its export sales and makes independent decisions regarding
disposition of profits or financing of losses. See Silicon Carbide, 59
FR at 22587; Sparklers, 56 FR at 20589.
The Department conducted separate rate analyses for Regal and
Shantou Longsheng, which have asserted the following: (1) there is no
government participation in setting export prices; (2) sales managers
and authorized employees have the authority to create binding sales
contracts; (3) they do not have to notify any government authorities of
management selections; (4) there are no restrictions on the use of
export revenue; and (5) they are is responsible for financing their own
losses. The questionnaire responses of Regal and Shantou Longsheng do
not indicate that pricing is coordinated among exporters. During our
analysis of the information on the record, we found no information
indicating the existence of government control of export activities.
See Regal's submission of October 3, 2008; see also Shantou Longsheng's
submission of May 30, 2008. Consequently, we preliminarily determine
that Regal and Shantou Longsheng have met the criteria for the
application of a separate rate.
In the Initiation, we requested that all companies listed therein
wishing to qualify for separate rate status in this administrative
review 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 482
companies, and is rescinding the review on five\6\ of those 482
companies. In addition, we are preliminarily rescinding the review with
respect to eleven\7\ other companies due to the lack of shipments
during the POR. Thus, including Regal and Shantou Longsheng, 466
companies remain subject to this review. Only Regal and Shantou
Longsheng provided, as appropriate, either a separate rate application
or certification. No other company listed in the Initiation, including
Go-Harvest discussed above, has demonstrated its eligibility for
separate rate status in this administrative review. Therefore, the
Department preliminarily determines that there were exports of
merchandise under review from PRC exporters that did not demonstrate
their eligibility for separate rate status. As a result, the Department
is treating these PRC exporters as part of the PRC-wide entity, subject
to the PRC-wide rate.
---------------------------------------------------------------------------
\6\ These include Yelin Enterprise Co., Ltd. Hong Kong (the
predecessor in interest to Hilltop International); Yangjiang City
Yelin Hoitat Quick Frozen Seafood Co., Ltd.; Fuqing Yihua Aquatic
Food Co., Ltd.; and Fuqing Minhua Trade Co., Ltd.
\7\ These include Allied Pacific Group (comprised of 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.); Gallant Ocean (Nanhai), Ltd.; Luk Ka Paper Industrial Ltd.;
Shantou Yelin Frozen Seafood Co., Ltd.; and Shantou Yuexing
Enterprise Company.
---------------------------------------------------------------------------
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 Scot
Fullerton, Program Manager, Office IX, from Paul
[[Page 10032]]
Walker, Senior Case Analyst, ``Third Administrative Review of Frozen
Warmwater Shrimp from the People's Republic of China: Surrogate Factor
Valuations for the Preliminary Results,'' dated concurrently with this
notice (``Surrogate Values Memo'').
As discussed in the ``NME Country Status'' section, the Department
considers the PRC to be an NME country. The Department determined that
India, Indonesia, the Philippines, Colombia, and Thailand are countries
comparable to the PRC in terms of economic development. See the
Department's letter to all interested parties, dated October 21, 2008.
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, the Petitioner
submitted surrogate value data for certain, but not all, FOPs for
Thailand on January 16, 2009. However, we note that we are placing
Indian surrogate value information for all FOPs on the record of this
review concurrently with this notice, and that the FOPs which are
valued using Indian import statistics are of a greater HTS specificity
than the Thai import statistics. See Surrogate Values Memo. Given the
above facts, the Department has selected India as the primary surrogate
country for this review.
U.S. Price
In accordance with section 772(a) of the Act, we calculated the
export price (``EP'') for sales to the United States for Regal. We
calculated EP based on the price to unaffiliated purchasers in the
United States. In accordance with section 772(c) of the Act, as
appropriate, we deducted from the starting price to unaffiliated
purchasers foreign inland freight, foreign brokerage and handling,
customs duties, domestic brokerage and handling and other movement
expenses incurred. For the services provided by an NME vendor or paid
for using an NME currency we based the deduction of these movement
charges on surrogate values. See Surrogate Values Memo for details
regarding the surrogate values for movement expenses. For expenses
provided by a market economy vendor and paid in U.S. dollars, we used
the actual cost per kilogram of the freight. See Regal Analysis Memo.
Normal Value
Methodology
Section 773(c)(1) 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 FOP 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 Regal 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).
For these preliminary results, in accordance with the Department's
practice, we used data from the Indian Import Statistics in order to
calculate surrogate values for most of Regal's material inputs. In
selecting the best available information for valuing FOPs in accordance
with section 773(c)(1) of the Act, the Department's practice is to
select, to the extent practicable, surrogate values which are non-
export average values, most contemporaneous with the POR, product-
specific, and tax-exclusive. See, e.g., Notice of Preliminary
Determination of Sales at Less Than Fair Value, Negative Preliminary
Determination of Critical Circumstances and Postponement of Final
Determination: Certain Frozen and Canned Warmwater Shrimp From the
Socialist Republic of Vietnam, 69 FR 42672, 42682 (July 16, 2004),
unchanged in Final Determination of Sales at Less Than Fair Value:
Certain Frozen and Canned Warmwater Shrimp From the Socialist Republic
of Vietnam, 69 FR 71005 (December 8, 2004). The record shows that the
Indian import statistics represent import data that are contemporaneous
with the POR, product-specific, and tax-exclusive. 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 OECD Stat by the Organization for Economic Development and
Cooperation.
To value shrimp larvae for Regal, which has an integrated
production process, the Department valued shrimp larvae using an
average of the price derived from the Nekkanti Sea Foods Ltd. financial
statement for 04/2002 - 03/2003, and the price quoted in Fishing
Chimes, which is an Indian seafood industry publication. However,
because the shrimp larvae prices are dated before the POR, we inflated
the price to be contemporaneous with the POR using WPI.
We valued electricity using price data for small, medium, and large
industries, as published by the Central Electricity Authority of the
Government of India in its publication titled Electricity Tariff & Duty
and Average Rates of Electricity Supply in India, dated July 2006.
These electricity rates represent actual country-wide, publicly-
available information on tax-exclusive electricity rates charged to
industries in India. Since the rates are dated before the POR, we
inflated the values to be contemporaneous with the POR using WPI. See
Surrogate Values Memo.
Consistent with 19 CFR 351.408(c)(3), we valued direct, indirect,
and packing labor, using the most recently calculated regression-based
wage rate, which relies on 2005 data. This wage rate can currently be
found on the Department's website on Import Administration's home page,
Import Library, Expected Wages of Selected NME Countries, revised in
May 2008, ia.ita.doc.gov/wages/05wages/05wages-051608.html. The source
of these wage-rate data on the Import Administration's web site is the
Yearbook of Labour Statistics 2002, ILO (Geneva: 2002), Chapter 5B:
Wages in Manufacturing. Because this regression-based wage rate does
not separate the labor rates into different skill levels or types of
labor, we have applied the same wage rate to all skill levels and types
of labor reported by Regal.
[[Page 10033]]
To value water, the Department used data from the Maharashtra
Industrial Development Corporation (www.midindia.orgwww.midcindia.org)
since it includes a wide range of industrial water tariffs. This source
provides 386 industrial water rates within the Maharashtra province
from June 2003: 193 of the water rates were for the ``inside industrial
areas'' usage category and 193 of the water rates were for the
``outside industrial areas'' usage category. Because the value was not
contemporaneous with the POR, we adjusted the rate for inflation.
We valued truck freight expenses using a per-unit average rate
calculated from data on the Info Banc web site: www.infobanc.com/
logistics/logtruck.htm. The logistics section of this website contains
inland freight truck rates between many large Indian cities. Since this
value is dated after the POR, we deflated the values to be
contemporaneous with the POR using WPI. See Surrogate Values Memo.
We valued brokerage and handling using a simple average of the
brokerage and handling costs that were reported in public submissions
that were filed in three antidumping duty cases. See Surrogate Values
Memo. Specifically, we averaged the public brokerage and handling
expenses reported by (a) Agro Dutch Industries Ltd. in the antidumping
duty administrative review of certain preserved mushrooms from India,
(b) Kejirwal Paper Ltd. in the LTFV investigation of certain lined
paper products from India, and (c) Essar Steel in the antidumping duty
administrative review of hot-rolled carbon steel flat products from
India.\8\ See Certain Preserved Mushrooms From India: Final Results of
Antidumping Duty Administrative Review, 71 FR 10646 (March 2, 2006);
Notice of Preliminary Determination of Sales at Less Than Fair Value,
Postponement of Final Determination, and Affirmative Preliminary
Determination of Critical Circumstances in Part: Certain Lined Paper
Products From India, 71 FR 19706 (April 17, 2006) (unchanged in Notice
of Final Determination of Sales at Less Than Fair Value, and Negative
Determination of Critical Circumstances: Certain Lined Paper Products
from India, 71 FR 45012 (August 8, 2006)), and Certain Hot-Rolled
Carbon Steel Flat Products From India: Preliminary Results of
Antidumping Duty Administrative Review, 71 FR 2018, 2021 (January 12,
2006) (unchanged in Certain Hot-Rolled Carbon Steel Flat Products From
India: Final Results of Antidumping Administrative Review, 71 FR 40694
(July 18, 2006)). The Department derived the average per-unit amount
from each source and adjusted each average rate for inflation. Finally,
the Department averaged the average per-unit amounts to derive an
overall average rate for the POR.
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\8\ These data have been placed on the record of this case and
can be found in attachments to the Factors Memo.
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To value factory overhead, sales, general and administrative
expenses, and profit, we relied upon publicly available information in
the 2007-2008 annual report of Falcon Marine Exports Ltd., an
integrated Indian producer of subject merchandise. See Surrogate
Values Memo.
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, 2007, through January
31, 2008:
Honey from the PRC
------------------------------------------------------------------------
Manufacturer/Exporter Margin
------------------------------------------------------------------------
Regal............................................... 26.30%
Shantou Longsheng................................... 26.30%
PRC-wide Entity \9\................................. 112.81%
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\9\ The PRC-wide entity includes the 464 companies currently under
review that have not established their entitlement to a separate rate,
including Zhanjiang Go-Harvest Aquatic Products Co., Ltd.
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
Regal 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).
[[Page 10034]]
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 calculate an assessment rate based on
the weighted average of the cash deposit rates calculated for the
companies selected for individual review pursuant to section
735(c)(5)(B) of the Act.
For those companies for which this review has been preliminarily
rescinded,\10\ 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.
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\10\ These include Allied Pacific Group (comprised of 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.); Gallant Ocean (Nanhai), Ltd.; Luk Ka Paper Industrial Ltd.;
Shantou Yelin Frozen Seafood Co., Ltd.; and Shantou Yuexing
Enterprise Company.
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For Yelin/Hilltop, antidumping duties shall be assessed 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). The Department will issue
appropriate assessment instructions directly to CBP 15 days after
publication of this notice.
Cash Deposit Requirements
The following cash-deposit requirements will be effective upon
publication of these final results for shipments of the subject
merchandise entered, or withdrawn from warehouse, for consumption on or
after the publication date of these final results, as provided by
section 751(a)(2)(C) of the Act: (1) for subject merchandise exported
by Regal and Shantou Longsheng the cash deposit rate will be 26.30
percent; (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 of 112.81 percent; 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.
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: March 2, 2009.
Ronald K. Lorentzen,
Acting Assistant Se
