[Federal Register Volume 69, Number 113 (Monday, June 14, 2004)]
[Notices]
[Pages 32979-32982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13327]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-848]


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

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting an 
administrative review of the antidumping duty order on freshwater 
crawfish tail meat from the People's Republic of China (PRC) in 
response to requests from the Crawfish Processors Alliance and its 
members (together with the Louisiana Department of Agriculture & 
Forestry, and Bob Odom, commissioner), and the Domestic Parties 
(collectively, the Domestic Interested Parties) and from exporters 
Hubei Qianjiang Houhu Cold & Processing Factory (Hubei Houhu), Shouzhou 
Huaxiang Foodstuffs Co., Ltd. (Shouzhou Huaxiang), Qingdao Jinyongxiang 
Aquatic Foods Co., Ltd. (Qingdao JYX) and North Supreme Seafood. The 
period of review (POR) is from September 1, 2002 through August 31, 
2003.
    We preliminarily determine that sales have been made below normal 
value (NV). The preliminary results are listed below in the section 
titled ``Preliminary Results of Review.'' If these preliminary results 
are adopted in our final results, we will instruct U.S. Customs and 
Border Protection (CBP) to assess the ad valorem margins against the 
entered value of each entry of the subject merchandise during the POR. 
Interested parties are invited to comment on these preliminary results. 
See the ``Preliminary Results of Review'' section of this notice.

EFFECTIVE DATE: June 14, 2004.

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

SUPPLEMENTARY INFORMATION:

Background

    The Department published in the Federal Register an antidumping 
duty order on freshwater crawfish tail meat from the PRC on September 
15, 1997. See Notice of Amendment to Final Determination of Sales at 
Less Than Fair Value and Antidumping Duty Order: Freshwater Crawfish 
Tail Meat from the People's Republic of China, 62 FR 48218 (September 
15, 1997). Based on timely requests from various interested parties, 
the Department initiated an administrative review of the antidumping 
duty order on freshwater crawfish tail meat from the PRC for the period 
of September 1, 2002 through August 31, 2003 covering 30 companies. See 
Initiation of Antidumping and Countervailing Duty Administrative 
Reviews, 68 FR 60910 (October 24, 2003) (Notice of Initiation).
    On May 13, 2004, based on the Domestic Interested Parties' timely 
withdrawal of their requests for review of a number of companies, as 
well as

[[Page 32980]]

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

Scope of the Antidumping Duty Order

    The product covered by this antidumping duty order is freshwater 
crawfish tail meat, in all its forms (whether washed or with fat on, 
whether purged or unpurged), grades, and sizes; whether frozen, fresh, 
or chilled; and regardless of how it is packed, preserved, or prepared. 
Excluded from the scope of the order are live crawfish and other whole 
crawfish, whether boiled, frozen, fresh, or chilled. Also excluded are 
saltwater crawfish of any type, and parts thereof. Freshwater crawfish 
tail meat is currently classifiable in the Harmonized Tariff Schedule 
of the United States (HTS) under item numbers 1605.40.10.10 and 
1605.40.10.90, which are the new HTS numbers for prepared foodstuffs, 
indicating peeled crawfish tail meat and other, as introduced by the 
CBP in 2000, and HTS numbers 0306.19.00.10 and 0306.29.00.00, which are 
reserved for fish and crustaceans in general. The HTS subheadings are 
provided for convenience and Customs purposes only. The written 
description of the scope of this order is dispositive.

Intent to Rescind Administrative Review, in Part

    The Department's regulations provide that the Department ``may 
rescind an administrative review, in whole or only with respect to a 
particular exporter or producer, if the Secretary concludes that, 
during the period covered by the review, there were no entries, 
exports, or sales of the subject merchandise, as the case may be.'' See 
19 CFR 351.213(d)(3). On December 8, 2003, Shanghai Ocean Flavor 
informed the Department that, other than the sales which are currently 
subject to its new shipper review (NSR) for the period September 1, 
2002 through February 28, 2003, it did not export, or produce for 
export, to the United States, nor did it produce and sell subject 
merchandise to the United States through other companies during the 
POR. The Department reviewed data on entries under the order during the 
period of review from CBP, and found no U.S. entries, exports, or sales 
of subject merchandise by Shanghai Ocean Flavor during the POR, other 
than those sales covered by its NSR. Therefore, absent the submission 
of any evidence that Shanghai Ocean Flavor had other U.S. entries, 
exports, or sales of subject merchandise during the POR, the Department 
intends to rescind the administrative review with respect to this 
company, in accordance with 19 CFR 351.213(d)(3).

Application of Facts Available

1. Nantong Shengfa

    As further discussed below, pursuant to sections 776(a)(2)(A) and 
(B) and section 776(b) of the Tariff Act of 1930, as amended (the Act), 
the Department determines that the application of total AFA is 
warranted for respondent Nantong Shengfa. Sections 776(a)(2)(A) and 
776(a)(2)(B) of the Act provide for the use of facts available when an 
interested party withholds information that has been requested by the 
Department, or when an interested party fails to provide the 
information requested in a timely manner and in the form required. 
Nantong Shengfa failed to file its response to the Department's 
quantity and value questionnaire in a timely manner. See the 
Department's letter to Nantong Shengfa dated May 6, 2004.
    The Department sent a quantity and value questionnaire to Nantong 
Shengfa on November 28, 2003, via international express mail, with a 
response due by December 16, 2003. In the cover letter for the quantity 
and value questionnaire, we stated ``Please be advised that if you are 
non-cooperative (e.g., non-responsive) to the Department's request for 
information, the antidumping duty margin applied by the Department to 
your company may be based on adverse facts available.'' We also stated 
in the cover letter ``If you are unable to respond to these questions 
within the specified time limits or are unable to provide the 
information in the form requested, please contact Department officials 
immediately.'' We confirmed through the delivery service that Nantong 
Shengfa had received our correspondence on December 1, 2003. The 
Department did not receive any correspondence from Nantong Shengfa 
indicating that it needed additional time to respond to the quantity 
and value questionnaire, or that it was having difficulty responding.
    On March 18, 2004, more than three months after the due date, 
Nantong Shengfa submitted a response to our quantity and value letter. 
Nantong Shengfa stated that while it received the quantity and value in 
December 2003, it sent the document to a translation service since none 
of its staff reads English. Nantong Shengfa stated that it received the 
translation in March 2004, and then contacted counsel.
    Nantong Shengfa failed to provide information explicitly requested 
by the Department in a timely manner; therefore, we must resort to the 
facts otherwise available. As noted in the Department's May 6, 2004 
letter to Nantong Shengfa, the company has participated in prior 
antidumping duty reviews, so it was familiar with the Department's 
requirements for filing documents in a timely manner. Section 782(c)(1) 
of the Act does not apply because Nantong Shengfa did not indicate that 
it was unable to submit the information required by the Department.
    Section 776(b) of the Act provides that, in selecting from among 
the facts available, the Department may use an inference that is 
adverse to the interests of the respondent, if it determines that a 
party has failed to cooperate to the best of its ability. The 
Department finds that, by not providing a timely response to the 
quantity and value questionnaire issued by the Department, Nantong 
Shengfa failed to cooperate to the best of its ability.
    Therefore, in selecting from the facts available, the Department 
determines that an adverse inference is warranted. In accordance with 
sections 776(a)(2)(A) and (B), as well as section 776(b) of the Act, we 
are applying total AFA to Nantong Shengfa. As part of this AFA 
determination, we find that Nantong Shengfa did not demonstrate its 
eligibility for a separate rate, and have preliminarily determined that 
it is subject to the PRC-wide rate. As noted above, as AFA, and as the 
PRC-wide rate, the Department is assigning the rate of 223.01 percent, 
which is the highest rate determined in the current or any previous 
segment of this proceeding. See 1999-2000 Final Results. As discussed 
below, this rate has been corroborated.

2. Hubei Houhu, Shouzhou Huaxiang and Qingdao JYX

    As further discussed below, pursuant to sections 776(a)(2)(A) and 
(B) and

[[Page 32981]]

section 776(b) of the Act, the Department determines that the 
application of total adverse facts available (AFA) is warranted for 
respondents Hubei Houhu, Shouzhou Huaxiang, and Qingdao JYX. Sections 
776(a)(2)(A) and 776(a)(2)(B) of the Act provide for the use of facts 
otherwise available when an interested party withholds information that 
has been requested by the Department, or when an interested party fails 
to provide the information requested in a timely manner and in the form 
required.
    On September 30, 2003, the Department received requests for review 
from Hubei Houhu, Shouzhou Huaxiang, and Qingdao JYX. On January 2, 
2004, the Department sent each of the three companies a full 
questionnaire, including sections A, C, and D, which had a due date of 
February 9, 2004. In a letter dated February 6, 2004, counsel for Hubei 
Houhu and Shouzhou Huaxiang stated that it was withdrawing its 
representation of those two companies, but that Qingdao JYX intended to 
participate fully in this review. Neither Hubei Houhu nor Shouzhou 
Huaxiang had submitted a response to the Department's initial Section 
A, C and D Questionnaire. On February 20, 2004, we sent letters 
directly to Hubei Houhu and Shouzhou Huaxiang via both fax and 
international express mail, inquiring as to whether those companies 
still intended to participate in the review. We confirmed through the 
delivery service that both companies received our February 20, 2004 
letter. We did not receive a response to our letter from either 
company. Thus, because Hubei Houhu and Shouzhou Huaxiang failed to 
respond to the Department's initial Section A, C and D questionnaire, 
pursuant to sections 776(a)(2)(A) and (B) of the Act, the Department 
determines that the application of facts otherwise available is 
warranted.
    Qingdao JYX submitted its response to the Department's initial 
Section A, C and D Questionnaire on February 17, 2004, after having 
been granted an extension from the original due date of February 9, 
2004. On March 14, 2004, the Department issued a supplemental 
questionnaire to Qingdao JYX, with a response due on March 30, 2004. 
Qingdao JYX twice requested extensions for the supplemental response 
due date, which were granted. On April 13, 2004, the date on which its 
supplemental response was due, Qingdao JYX informed the Department, via 
letter, that it did not intend to respond to the Department's 
supplemental questionnaire or participate in verification, and was, 
thus, terminating its participation in this review. Because Qingdao JYX 
failed to respond to the Department's supplemental questionnaire, 
pursuant to sections 776(a)(2)(A) and (B) of the Act, the Department 
determines that the application of facts otherwise available is 
warranted.
    These three companies failed to provide information explicitly 
requested by the Department; therefore, we must resort to the facts 
otherwise available. Section 782(c)(1) of the Act does not apply 
because none of the companies indicated that they were unable to submit 
the information required by the Department.
    Section 776(b) of the Act provides that, in selecting from among 
the facts available, the Department may use an inference that is 
adverse to the interests of a respondent, if it determines that a party 
has failed to cooperate to the best of its ability. As noted above, 
Hubei Houhu and Shouzhou Huaxiang failed to provide any response to the 
Department's initial questionnaire, and Qingdao JYX failed to respond 
to the Department's supplemental questionnaire. Because the Department 
concludes that these three companies failed to cooperate to the best of 
their ability, in applying the facts otherwise available, the 
Department finds that an adverse inference is warranted, pursuant to 
section 776(b) of the Act. In the absence of verifiable information 
establishing these companies' eligibility for a separate rate, we have 
preliminarily determined that they are subject to the PRC-wide rate. As 
AFA, and as the PRC-wide rate, the Department is assigning the rate of 
223.01 percent, which is the highest rate determined in the current or 
any previous segment of this proceeding. See Freshwater Crawfish Tail 
Meat from the People's Republic of China; Notice of Final Results of 
Antidumping Duty Administrative Review, and Final Partial Rescission of 
Antidumping Duty Administrative Review, 67 FR 19546 (April 22, 2002) 
(1999-2000 Final Results). As discussed further below, this rate has 
been corroborated.

Corroboration of Secondary Information Used As AFA

    Section 776(c) of the Act requires that the Department corroborate, 
to the extent practicable, a figure which it applies as facts 
available. To be considered corroborated, information must be found to 
be both reliable and relevant.We are applying as AFA the highest rate 
from any segment of this administrative proceeding, which is a rate 
calculated in the
    1999-2000 review. See 1999-2000 Final Results. Unlike other types 
of information, such as input costs or selling expenses, there are no 
independent sources for calculated dumping margins. The only sources 
for calculated margins are administrative determinations. The 
information upon which the AFA rate is based in the current review was 
calculated during the 1999-2000 administrative review. See 1999-2000 
Final Results. Furthermore, the AFA rate we are applying for the 
current review was corroborated in reviews subsequent to the 1999-2000 
review to the extent that the Department referred to the history of 
corroboration and found that the Department received no information 
that warranted revisiting the issue. See, e.g., Freshwater Crawfish 
Tail Meat from the People's Republic of China; Notice of Final Results 
of Antidumping Duty Administrative Review, 68 FR 19504, 19508 (April 
21, 2003). No information has been presented in the current review that 
calls into question the reliability of this information. Thus, the 
Department finds that the information is reliable.
    With respect to the relevance aspect of corroboration, the 
Department will consider information reasonably at its disposal to 
determine whether a margin continues to have relevance. Where 
circumstances indicate that the selected margin is not appropriate as 
AFA, the Department will disregard the margin and determine an 
appropriate margin. For example, in Fresh Cut Flowers from Mexico: 
Final Results of Antidumping Administrative Review, 61 FR 6812 
(February 22, 1996), the Department disregarded the highest margin in 
that case as adverse best information available (the predecessor to 
facts available) because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
margin. Similarly, the Department does not apply a margin that has been 
discredited. See D & L Supply Co. v. United States, 113 F.3d 1220, 1221 
(Fed. Cir. 1997) (the Department will not use a margin that has been 
judicially invalidated).
    The information used in calculating this margin was based on sales 
and production data of a respondent in a prior review, together with 
the most appropriate surrogate value information available to the 
Department, chosen from submissions by the parties in that review, as 
well as gathered by the Department itself. Furthermore, the calculation 
of this margin was subject to comment from interested parties in the 
proceeding. See 1999-2000 Final Results. Moreover, as there is no

[[Page 32982]]

information on the record of this review that demonstrates that this 
rate is not appropriately used as AFA, we determine that this rate has 
relevance. As the rate is both reliable and relevant, we determine that 
it has probative value. Accordingly, we determine that the highest rate 
from any segment of this administrative proceeding (i.e., the 
calculated rate of 223.01 percent, which is the current PRC-wide rate) 
is in accord with section 776(c)'s requirement that secondary 
information be corroborated (i.e., that it have probative value).

Separate Rates

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

Preliminary Results of Review

    We preliminarily determine that the following dumping margins 
exist:

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              Manufacturer and Exporter                     Period of Review              Margin (percent)
----------------------------------------------------------------------------------------------------------------
PRC-Wide Rate\1\....................................                9/1/02-8/31/03                        223.01
----------------------------------------------------------------------------------------------------------------
\1\ Shouzhou Huaxiang, Qingdao JYX, Hubei Houhu, and Nantong Shengfa are included in the PRC-wide rate.

Cash Deposit Requirements

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

Assessment Rates

    Upon completion of this administrative review, the Department shall 
determine, and the U.S. Customs Service shall assess, antidumping 
duties on all appropriate entries. We will direct CBP to assess the 
resulting ad valorem rates against the entered value of each entry of 
the subject merchandise during the POR. The Department will issue 
appropriate assessment instructions directly to CBP within 15 days of 
publication of the final results of review.

Comments and Hearing

    Pursuant to 19 CFR 351.224(b), the Department will disclose to 
parties to the proceeding any calculations performed in connection with 
these preliminary results within five days after the date of 
publication of this notice. Pursuant to 19 CFR 351.309, interested 
parties may submit written comments in response to these preliminary 
results. Normally, case briefs are to be submitted within 30 days after 
the date of publication of this notice, and rebuttal briefs, limited to 
arguments raised in case briefs, are to be submitted no later than five 
days after the time limit for filing case briefs. Parties who submit 
arguments in this proceeding are requested to submit with the argument: 
(1) a statement of the issues, and (2) a brief summary of the argument. 
Case and rebuttal briefs must be served on interested parties in 
accordance with 19 CFR 351.303(f).
    Also, pursuant to 19 CFR 351.310, within 30 days of the date of 
publication of this notice, interested parties may request a public 
hearing on arguments to be raised in the case and rebuttal briefs. 
Unless the Secretary specifies otherwise, the hearing, if requested, 
will be held two days after the date for submission of rebuttal briefs. 
Parties will be notified of the time and location. The Department will 
publish the final results of this administrative review, including the 
results of its analysis of issues raised in any case or rebuttal brief, 
not later than 120 days after publication of these preliminary results, 
unless extended.

Notification to Importers

    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 351.402(f) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    This administrative review and this notice are published in 
accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 
351.213 and 351.221.

    Dated: June 2, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 04-13327 Filed 6-10-04; 8:45 am]
BILLING CODE 3510-DS-S