[Federal Register Volume 68, Number 33 (Wednesday, February 19, 2003)]
[Notices]
[Pages 7976-7980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3995]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-848]


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

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting a 
new shipper review of the antidumping duty order on freshwater crawfish 
tail meat from the People's Republic of China (PRC) in response to a 
request from Weishan Zhenyu Foodstuff Co., Ltd. (Weishan Zhenyu). The 
period of review (POR) is September 1, 2001, through February 28, 2002.
    The preliminary results are listed below in the section titled 
``Preliminary Results of Review.'' Interested parties are invited to 
comment on these preliminary results. (See the ``Preliminary Results of 
Reviews'' section of this notice.)

EFFECTIVE DATE: February 19, 2003.

FOR FURTHER INFORMATION CONTACT: Douglas Kirby or Thomas Gilgunn, 
Office of AD/CVD Enforcement VII, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
3782 or (202) 482-4236, respectively.

Background

    The Department published in the Federal Register an antidumping 
duty order on freshwater crawfish tail meat from the People's Republic 
of China on September 15, 1997. (See Notice of

[[Page 7977]]

Amendment to Final Determination of Sales at Less Than Fair Value and 
Antidumping Duty Order: Freshwater Crawfish Tail Meat from the People's 
Republic of China, 62 FR 48218.) On March 29, 2002 the Department 
received a properly filed request for a new shipper review, in 
accordance with section 751(a)(2)(B) of the Act and section 351.214(c) 
of the Department's regulations, from Weishan Zhenyu under the 
antidumping duty order on freshwater crawfish tail meat from the 
People's Republic of China.
    The new shipper request was made pursuant to section 751(a)(2)(B) 
of the Act and section 351.214(b) of the Department's regulations. 
Under these provisions, an exporter or producer of the subject 
merchandise may request a new shipper review stating that it did not 
export the merchandise to the United States during the period of 
investigation (POI) and that such exporter or producer has never been 
affiliated with any exporter or producer who exported the subject 
merchandise during that period, including those not individually 
examined during the investigation. If the exporter or producer makes 
the statements required by the regulations, the Department shall 
conduct a new shipper review to establish an individual weighted-
average dumping margin for such exporter or producer, if the Department 
has not previously established such a margin for the exporter or 
producer.
    The regulations require that the exporter or producer shall include 
in its request, with appropriate certifications: (i) The date on which 
the merchandise was first entered, or withdrawn from warehouse, for 
consumption, or, if it cannot certify as to the date of first entry, 
the date on which it first shipped the merchandise for export to the 
United States, or if the merchandise has not yet been shipped or 
entered, the date of sale; (ii) a list of the firms with which it is 
affiliated; (iii) a statement from such exporter or producer, and from 
each affiliated firm, that it did not, under its current or a former 
name, export the merchandise during the POI; (iv) a certification that 
since the investigation was initiated, such exporter or producer has 
never been affiliated with any exporter or producer who exported the 
subject merchandise to the United States during the POI and; (v) in an 
antidumping proceeding involving inputs from a non-market-economy (NME) 
country, a certification that the export activities of such exporter or 
producer are not controlled by the central government. (See generally 
section 351.214(b)(2) of the Department's regulations.)
    The request received from Weishan Zhenyu was accompanied by 
information and certifications establishing that it did not export the 
subject merchandise to the United States during the POI, and that it 
was not affiliated with any company which exported subject merchandise 
to the United States during the POI. Weishan Zhenyu provided 
information and certifications that demonstrated the date on which this 
company first shipped and entered freshwater crawfish tail meat for 
consumption in the United States, the volume of that and each 
subsequent shipment, and the date of first sale to an unaffiliated 
customer in the United States. In addition, Weishan Zhenyu certified 
that its export activities are not controlled by the central 
government.
    The Department determined that the request met the requirements 
stipulated in section 351.214 of the regulations. On April 30, 2002, 
the Department published its initiation of this new shipper review for 
the period September 1, 2001, through February 28, 2002. (See 
Freshwater Crawfish Tail Meat From the People's Republic of China: 
Initiation of New Shipper Antidumping Administrative Review, 67 FR 
21218 (April 30, 2002).)
    On May 8, 2002 we issued a questionnaire to Weishan Zhenyu. On June 
7, 2002, we received their section A questionnaire response. On June 
24, 2002 we received their sections C and D questionnaire responses. On 
September 23, 2002, we issued a supplemental questionnaire to Weishan 
Zhenyu. We received the response to this questionnaire on October 7, 
2002. On October 25, 2002, we issued a second supplemental 
questionnaire to Weishan Zhenyu. We received their response to the 
second supplemental on November 12, 2002. We issued a third 
supplemental questionnaire to Weishan Zhenyu on November 12, 2002. We 
received their response to the third supplemental questionnaire on 
November 18, 2002. On January 28, 2003, we requested information from 
the U.S. importer of Weishan Zhenyu's new shipper shipment. To date, we 
have not received a response to this request. Any information provided 
by the importer will be analyzed for purposes of the final results of 
this new shipper review.
    On September 26, 2002, the Department extended the preliminary 
results of this new shipper review by 33 days until November 22, 2002. 
(See Freshwater Crawfish Tail Meat from the People's Republic of China: 
Notice of Extension of Time Limit of Preliminary Results of New Shipper 
Review, 67 FR 60640 (September 26, 2002).) On November 1, 2002, the 
Department extended the deadline for completion of the preliminary 
results of this new shipper review for an additional 83 days until 
February 13, 2003. (See Notice of Extension of Time Limit for 
Preliminary Results of Antidumping Duty New Shipper Reviews: Freshwater 
Crawfish Tail Meat from the People's Republic of China, 67 FR 66613 
(November 1, 2002).)

Scope of the Antidumping Duty Order

    The product covered by this review is freshwater crawfish tail 
meat, in all its forms (whether washed or with fat on, whether purged 
or unpurged), grades, and sizes; whether frozen, fresh, or chilled; and 
regardless of how it is packed, preserved, or prepared. Excluded from 
the scope of the order are live crawfish and other whole crawfish, 
whether boiled, frozen, fresh, or chilled. Also excluded are saltwater 
crawfish of any type, and parts thereof. Freshwater crawfish tail meat 
is currently classifiable in the Harmonized Tariff Schedule of the 
United States (HTS) under item numbers 1605.40.10.10 and 1605.40.10.90, 
which are the new HTS numbers for prepared foodstuffs, indicating 
peeled crawfish tail meat and other, as introduced by the U.S. Customs 
Service in 2000, and HTS items 0306.19.00.10 and 0306.29.00, which are 
reserved for fish and crustaceans in general. The HTS subheadings are 
provided for convenience and Customs purposes only. The written 
description of the scope of this order is dispositive.

Verification

    As provided in section 782(i) of the Act, we conducted verification 
of the questionnaire responses of Weishan Zhenyu. We used standard 
verification procedures, including on-site inspection of the 
manufacturers' facilities and the examination of relevant sales and 
financial records. Our verification results are outlined in the New 
Shipper Review of Freshwater Crawfish Tail Meat (tail meat) from the 
People's Republic of China (PRC) (A-570-848): Sales and Factors 
Verification Report for Weishan Zhenyu Foodstuff Co., Ltd., dated 
January 30, 2003. (Weishan Zhenyu Verification Report). A public 
version of this report is on file in the Central Records Unit (CRU) 
located in room B-099 of the Main Commerce Building.

Separate Rates

    Weishan Zhenyu requested a separate, company-specific rate. In its 
questionnaire response, the company

[[Page 7978]]

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

De Jure Control

    With respect to the absence of de jure government control over the 
export activities of the company reviewed, evidence on the record 
supports the claim made by Weishan Zhenyu that its export activities 
are not controlled by the government. Weishan Zhenyu submitted evidence 
of its legal right to set prices independently of all government 
oversight. The business license of Weishan Zhenyu indicates that the 
company is permitted to engage in the exportation of crawfish. We found 
no evidence of de jure government control restricting this company's 
exportation of crawfish.
    In general, no export quotas apply to crawfish. Prior verifications 
have confirmed that there are no commodity-specific export licenses 
required and no quotas for the seafood category ``Other,'' which 
includes crawfish, in China's Tariff and Non-Tariff Handbook for 1996. 
In addition, we have previously confirmed that crawfish is not on the 
list of commodities with planned quotas in the 1992 PRC Ministry of 
Foreign Trade and Economic Cooperation document entitled Temporary 
Provisions for Administration of Export Commodities. (See Freshwater 
Crawfish Tail Meat From The People's Republic of China; Preliminary 
Results of New Shipper Review, 64 FR 8543 (February 22, 1999) and 
Freshwater Crawfish Tail Meat From the People's Republic of China; 
Final Results of New Shipper Review, 64 FR 27961 (May 24, 1999) (Ningbo 
New Shipper Review).)
    The Administrative Regulations of the People's Republic of China 
for Controlling the Registration of Enterprises as Legal Persons (Legal 
Persons Law), issued on June 13, 1988 by the State Administration for 
Industry and Commerce of the PRC and provided for the record of this 
review, indicates a lack of de jure government control over privately-
owned companies, such as Weishan Zhenyu, and that control over this 
enterprise rests with the enterprise itself. The Legal Persons Law 
provides that, to qualify as legal persons, companies must have the 
``ability to bear civil liability independently'' and the right to 
control and manage their businesses. These regulations also state that, 
as an independent legal entity, a company is responsible for its own 
profits and losses. (See Notice of Final Determination of Sales at Less 
Than Fair Value; Manganese Metal from the People's Republic of China, 
60 FR 56045 (November 6, 1995) (Manganese Metal).) At verification, we 
saw that the business license for Weishan Zhenyu was granted in 
accordance with this law. The results of verification support the 
information provided regarding the Legal Persons Law. (See Weishan 
Zhenyu Verification Report, at 6.) Therefore, we preliminarily 
determine that there is an absence of de jure control over export 
activity with respect to Weishan Zhenyu.

De Facto Control

    With respect to the absence of de facto control over export 
activities, the information submitted on the record and reviewed at 
verification, indicates that the management of Weishan Zhenyu is 
responsible for the determination of export prices, profit 
distribution, marketing strategy, and contract negotiations. Our 
analysis indicates that there is no government involvement in the daily 
operations or the selection of management for this company. In 
addition, we have found that the respondent's pricing and export 
strategy decisions are not subject to the review or approval of any 
outside entity, and that there are no governmental policy directives 
that affect these decisions.
    There are no restrictions on the use of export earnings. The 
company general manager of Weishan Zhenyu has the right to negotiate 
and enter into contracts, and may delegate this authority to employees 
within the company. There is no evidence that this authority is subject 
to any level of governmental approval. Weishan Zhenyu stated that its 
management is selected by a board of directors and there is no 
government involvement in the selection process. Finally, decisions 
made by the respondent concerning purchases of subject merchandise from 
suppliers are not subject to government approval. Consequently, because 
evidence on the record indicates an absence of government control, both 
in law and in fact, over the company's export activities, we 
preliminarily determine that a separate rate should be applied to 
Weishan Zhenyu. For further discussion of the Department's preliminary 
determination regarding the issuance of separate rates, see Separate 
Rates Decision Memorandum to Dana Mermelstein, Program Manager, Office 
of AD/CVD Enforcement VII, dated February 12, 2003. A public version of 
this memorandum is on file in the Department's Central Record Unit 
(CRU).

Normal Value Comparisons

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

United States Price

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

[[Page 7979]]

accordance with section 772(c) of the Act.

Normal Value

    Section 773(c)(1) of the Act provides that the Department shall 
determine normal value (NV) using a factors-of-production methodology 
if (1) the merchandise is exported from an NME country, and (2) 
available information does not permit the calculation of NV using home-
market prices, third-country prices, or constructed value under section 
773(a) of the Act.
    In every case conducted by the Department involving the PRC, the 
PRC has been treated as an NME country. Pursuant to 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. Weishan Zhenyu did not contest such treatment 
in this review. Accordingly, we have applied surrogate values to the 
factors of production to determine NV. See Factor Values Memo for the 
Preliminary Results of the Antidumping Duty New Shipper Reviews of 
Freshwater Crawfish Tail Meat from the People's Republic of China, 
dated February 12, 2003 (Factor Values Memo).
    We calculated NV based on factors of production in accordance with 
section 773(c)(4) of the Act and section 351.408(c) of our regulations. 
Consistent with the original investigation and the subsequent 
administrative reviews of this order, we determined that India (1) is 
comparable to the PRC in level of economic development, and (2) is a 
significant producer of comparable merchandise. With the exceptions of 
the whole live crawfish input and the crawfish scrap by-product, we 
valued the factors of production using publicly available information 
from India. We adjusted the Indian import prices by adding foreign 
inland freight expenses to make them delivered prices.
    We valued the factors of production as follows:
    To value the input of whole crawfish we used publicly available 
data showing Spanish imports of whole live crawfish from Portugal. We 
adjusted the values of whole live crawfish to include freight costs 
incurred between the supplier and the factory. For transportation 
distances used in the calculation of freight expenses on whole live 
crawfish, we added, to surrogate values from India, a surrogate freight 
cost using the shorter of (a) the distances between the closest PRC 
port and the factory, or (b) the distance between the domestic supplier 
and the factory. (See Notice of Final Determination of Sales at Less 
Than Fair Value: Collated Roofing Nails From the People's Republic of 
China, 62 FR 51410 (October 1, 1997) (Roofing Nails).)
    To value the by-product of wet crawfish scrap, we used a price 
quote from Indonesia for wet crab and shrimp shells. (See Surrogate 
Valuation of Shell Scrap: Freshwater Crawfish Tail Meat from the 
People's Republic of China (PRC), Administrative Review 9/1/00-8/31/01 
and New Shipper Reviews 9/1/00-8/31/01 and 9/1/00-10/15/01, dated 
August 5, 2002.)
    To value coal, we used the average 1996 total price of ``steam coal 
for industry'' as published in the International Energy Agency's 
publication, Energy Prices and Taxes, First Quarter, 2000. We adjusted 
the cost of coal to include an amount for transportation. To value 
electricity, we used the average of the 1997 total cost per kilowatt 
hour (KWH) for ``Electricity for Industry'' as reported in the 
International Energy Agency's publication, Energy Prices and Taxes, 
First Quarter, 2000. For water, we relied upon public information from 
the October 1997 Second Water Utilities Data Book: Asian and Pacific 
Region, published by the Asian Development Bank.
    To achieve comparability of energy and water prices to the factors 
reported for the crawfish tail meat processing period applicable to the 
company under review, we adjusted these factor values to reflect 
inflation to the applicable crawfish processing season during the POR 
using the Wholesale Price Index (WPI) for India, as published in the 
2002 International Financial Statistics (IFS) by the International 
Monetary Fund (IMF).
    To value packing materials (plastic bags, cardboard boxes and 
adhesive tape), we relied upon Indian import data for the period April 
2000 through January 2001 as reported in the Monthly Statistics of the 
Foreign Trade of India (Monthly Statistics). We adjusted these prices 
to reflect inflation to the crawfish processing season during the POR. 
We adjusted the values of packing materials to include freight costs 
incurred between the supplier and the factory. For transportation 
distances used in the calculation of freight expenses on packing 
materials, we added, to surrogate values from India, a surrogate 
freight cost using the shorter of (a) the distances between the closest 
PRC port and the factory, or (b) the distance between the domestic 
supplier and the factory. (See Roofing Nails.)
    To value factory overhead, selling, general, and administrative 
expenses (SG&A), and profit, we continued to use simple average derived 
from the publicly available 1996-97 financial statements of four Indian 
seafood processing companies. We applied these rates to the calculated 
cost of manufacture. (See Factor Values Memo, at 6.)
    For labor, we used the PRC regression-based wage rate at Import 
Administration's home page, Import Library, Expected Wages of Selected 
NME Countries, revised in September 2002, and corrected in February 
2003. Because of the variability of wage rates in countries with 
similar per capita gross domestic products, section 351.408(c)(3) of 
the Department's regulations requires the use of a regression-based 
wage rate. The source of these wage rate data on the Import 
Administration's web site is the Year Book of Labour Statistics 2000, 
International Labour Office (Geneva: 1998), Chapter 5: Wages in 
Manufacturing.
    We valued movement expenses as follows: To value truck freight 
expenses we used seventeen price quotes from six different Indian 
trucking companies which were used in the antidumping investigation of 
Bulk Aspirin from the People's Republic of China, 65 FR 33805 (May 25, 
2000). We adjusted the rates to reflect inflation to the month of sale 
of the finished product using the WPI for India from the International 
Financial Statistics (IFS) by the International Monetary Fund (IMF).

Currency Conversion

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

Preliminary Results of Review

    We preliminarily determine that the following dumping margin 
exists:

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                                                                                                      Margin
            Manufacturer and exporter                               Time period                      (percent)
----------------------------------------------------------------------------------------------------------------
Weishan Zhenyu Foodstuff Co., Ltd...............  9/1/01-2/28/02                                           0.00
----------------------------------------------------------------------------------------------------------------


[[Page 7980]]

Cash-Deposit Requirements

    If these preliminary results are not modified in the final results 
of this review, a cash deposit rate of zero will be effective upon 
publication of the final results of this new shipper review for all 
shipments of freshwater crawfish tail meat from the PRC produced and 
exported by Weishan Zhenyu and entered, or withdrawn from warehouse, 
for consumption on or after publication date, as provided for by 
section 751(a)(2)(C) of the Act. The cash deposit rate for shipments 
produced and exported by Weishan Zhenyu will be the total amount of 
antidumping duties divided by the total quantity exported during the 
POR. This per kilogram cash deposit rate will be equivalent to the 
company-specific dumping margin rate established in this review. For 
crawfish tail meat exported, but not produced, by Weishan Zhenyu, we 
will apply as the cash deposit rate the PRC-wide rate, which is 
currently 223.01 percent. (See memorandum to file dated August 5, 2002, 
which places on the record of this review the ``Memorandum to Barbara 
E. Tillman through Maureen Flannery, from Mark Hoadley: Collection of 
Cash Deposits and Assessment of Duties on Freshwater Crawfish from the 
PRC, dated August 27, 2001''.)

Assessment Rates

    Upon completion of this new shipper review, the Department shall 
determine, and the U.S. Customs Service shall assess, antidumping 
duties on all appropriate entries. The Department will issue 
appraisement instructions directly to the U.S. Customs Service upon 
completion of this review. For assessment purposes, we calculated 
importer-specific assessment rates for freshwater crawfish tail meat 
from the PRC. We divided the total dumping margins (calculated as the 
difference between NV and EP) for the importer by the total quantity of 
subject merchandise sold to that importer during the POR. Upon the 
completion of this review, we will direct Customs to assess the 
resulting quantity-based rates against the weight in kilograms of each 
entry of the subject merchandise by the importer during the POR. For 
crawfish tail meat produced and exported by Weishan Zhenyu, we will 
assess antidumping duties on a per kilogram basis equivalent to the 
company-specific cash deposit rate established in this review.

Schedule for Final Results of Review

    The Department will disclose calculations performed in connection 
with the preliminary results of this review within five days of the 
date of publication of this notice in accordance with 19 CFR 
351.224(b). Any interested party may request a hearing within 30 days 
of publication of this notice in accordance with Sec.  351.310(c) of 
the Department's regulations. Any hearing would normally be held 37 
days after the publication of this notice, or the first workday 
thereafter, at the U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230. Individuals who wish to 
request a hearing must submit a written request within 30 days of the 
publication of this notice in the Federal Register to the Assistant 
Secretary for Import Administration, U.S. Department of Commerce, Room 
1870, 14th Street and Constitution Avenue, NW., Washington, DC 20230. 
Requests for a public hearing should contain: (1) The party's name, 
address, and telephone number; (2) the number of participants; and, (3) 
to the extent practicable, an identification of the arguments to be 
raised at the hearing.
    Unless otherwise notified by the Department, interested parties may 
submit case briefs within 30 days of the date of publication of this 
notice in accordance with 351.309(c)(ii) of the Department's 
regulations. As part of the case brief, parties are encouraged to 
provide a summary of the arguments not to exceed five pages and a table 
of statutes, regulations, and cases cited. Rebuttal briefs, which must 
be limited to issues raised in the case briefs, must be filed within 
five days after the case brief is filed. If a hearing is held, an 
interested party may make an affirmative presentation only on arguments 
included in that party's case brief and may make a rebuttal 
presentation only on arguments included in that party's rebuttal brief. 
Parties should confirm by telephone the time, date, and place of the 
hearing 48 hours before the scheduled time.
    The Department will issue the final results of this new shipper 
review, which will include the results of its analysis of issues raised 
in the briefs, within 90 days from the date of the preliminary results, 
unless the time limit is extended.

Notification to Importers

    This notice also serves as a preliminary reminder to importers of 
their responsibility under 351.402(f) of the Department's regulations 
to file a certificate regarding the reimbursement of antidumping duties 
prior to liquidation of the relevant entries during these review 
periods. Failure to comply with this requirement could result in the 
Secretary's presumption that reimbursement of antidumping duties 
occurred and the subsequent assessment of double antidumping duties.
    This new shipper review and this notice are published in accordance 
with sections 751(a)(2)(B) and 777 (i)(1) of the Act.

    Dated: February 12, 2003.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 03-3995 Filed 2-18-03; 8:45 am]
BILLING CODE 3510-DS-P