[Federal Register Volume 72, Number 143 (Thursday, July 26, 2007)]
[Notices]
[Pages 41058-41061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14461]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-893]


Certain Frozen Warmwater Shrimp from the People's Republic of 
China: Preliminary Notice of Intent to Rescind Antidumping Duty New 
Shipper Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (``the Department'') is currently 
conducting the semi-annual 2006 new shipper review of the antidumping 
duty order on certain frozen warmwater shrimp (``shrimp'') from the 
People's Republic of China (``PRC''). We preliminarily determine that 
Maoming Changxing Foods Co., Ltd. (``Maoming Changxing'') has failed to 
demonstrate its eligibility for a separate rate in this new shipper 
review. Therefore, we have preliminarily determined that this new 
shipper review should be rescinded. Interested parties are invited to 
comment on this preliminary notice of intent to rescind.

EFFECTIVE DATE: July 26, 2007.

FOR FURTHER INFORMATION CONTACT: Anya Naschak, 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) 482-6375.

SUPPLEMENTARY INFORMATION:

Background

    The Department received a timely request from Maoming Changxing, in 
accordance with 19 CFR 351.214(c), for a new shipper review of the 
antidumping duty order on shrimp from the PRC.
    On September 22, 2006, the Department found that the request for 
review with respect to Maoming Changxing met all of the regulatory 
requirements set forth in 19 CFR 351.214(b) and initiated an 
antidumping duty new shipper review covering the period February 1, 
2006, through July 31, 2006. See Certain Frozen Warmwater Shrimp from 
the People's Republic of China: Initiation of New Shipper Review, 71 FR 
57469 (September 29, 2006) (``Initiation Notice'').
    On March 13, 2007, the Department extended the deadline for the 
preliminary results of the new shipper review until July 19, 2007. See 
Notice of Extension of the Preliminary Results of Antidumping Duty New 
Shipper Review: Certain Frozen Warmwater Shrimp from thePeople's 
Republic of China, 72 FR 11324 (March 13, 2007).
    On September 27, 2006, we issued an antidumping duty questionnaire 
to Maoming Changxing. See Letter to Maoming Changxing from Christopher 
Riker, dated September 27, 2006. On October 12, 2006, the Department 
placed on the record of this review U.S. Customs and Border Protection 
(``CBP'') documentation from Maoming Changxing's shipment to the United 
States during the period of review (``POR''). See Memorandum to the 
File: Certain Frozen Warmwater Shrimp from the People's Republic of 
China: Entry Package(s) from U.S. Customs and Border Protection 
(``CBP''), dated October 12, 2006 (``Entry Documents Memo''). On 
October 25, 2006, Maoming Changxing responded to section A of the 
Department's questionnaire. On November 21, 2006, the Department 
received Maoming Changxing's response to sections C and D, and 
importer-specific questionnaire response. Between December 5, 2006, and 
May 1, 2007, the Department issued supplemental section A, C, D, and 
importer-specific questions to Maoming Changxing, and received 
responses to these questionnaires between December 29, 2006, and May 
10, 2007.
    On April 2, 2007, the Department provided parties with an 
opportunity to submit publicly available information

[[Page 41059]]

on surrogate countries and surrogate values for consideration in these 
preliminary results. See Letter to All Interested Parties from 
Christopher D. Riker: Antidumping Duty New Shipper Review of Certain 
Frozen Warmwater Shrimp from the People's Republic of China: Letter 
enclosing the Office of Policy List of Economically Comparable 
Countries and Schedule for Comments on Surrogate Country, dated April 
2, 2007. The Department did not receive any comments on surrogate 
country or surrogate values from any interested party in this new 
shipper review.

Period of Review

    The POR for this new shipper review is February 1, 2006, through 
July 31, 2006.

Verification

    The Department conducted verification of Maoming Changxing's 
questionnaire responses between May 21, 2007, and May 23, 2007, at 
Maoming Changxing's facility in Maoming, Guangdong, PRC. We used 
standard verification procedures, including on-site inspection of the 
exporter's manufacturing and sales facilities, and examination of 
relevant sales and financial records. Our verification results are 
outlined in the verification report. For a further discussion, see 
Memorandum to the File from Anya L. Naschak and Michael Holton: 
Verification of the Questionnaire Responses of Maoming Changxing Foods 
Co., Ltd. in the Antidumping New Shipper Review of Certain Frozen 
Warmwater Shrimp from the People's Republic of China, dated July 19, 
2007 (``Maoming Changxing Verification Report''). The verification 
results are on file in the main Department of Commerce building, in the 
Central Records Unit, Room B-099.

Scope of 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, 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 
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 1605.20.10.20); (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 0306.23.00.20 and 0306.23.00.40); (4) 
shrimp and prawns in prepared meals (HTS subheading 1605.20.05.10); (5) 
dried shrimp and prawns; (6) Lee Kum Kee's shrimp sauce; (7) canned 
warmwater shrimp and prawns (HTS subheading 1605.20.10.40); (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: 0306.13.00.03, 0306.13.00.06, 
0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 
0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 
1605.20.10.10, and 1605.20.10.30. 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.

Preliminary Intent to Rescind

    Concurrent with this notice, the Department is issuing a memorandum 
detailing our analysis of the information on the record of this 
proceeding with respect to Maoming Changxing's ownership and 
affiliations. See Memorandum to James C. Doyle: Intent to Rescind the 
New Shipper Review of Maoming Changxing Foods Co., Ltd. in the 
Antidumping New Shipper Review of Certain Frozen Warmwater Shrimp from 
the People's Republic of China, dated July 19, 2007 (``Prelim 
Rescission Memo'').
    We have considered whether Maoming Changxing is eligible for a 
separate rate. The Department's separate-rate test is not concerned, in 
general, with macroeconomic/border-type controls, e.g., export 
licenses, quotas, and minimum export prices, particularly if these 
controls are imposed to prevent dumping. Rather, the test focuses on 
controls over the investment, pricing, and output decision-making 
process at the individual firm level. See Notice of Final Determination 
of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel 
Plate from Ukraine, 62 FR 61754, 61757 (November 19, 1997), and Tapered 
Roller Bearings and Parts Thereof, Finished and Unfinished, From the 
People's Republic of China: Final Results of Antidumping Duty 
Administrative Review, 62 FR 61276, 61279 (November 17, 1997).
    To establish whether a firm is sufficiently independent from 
government control of its export activities to be entitled to a 
separate rate, the Department analyzes each entity exporting the 
subject merchandise under a test arising from the Final Determination 
of Sales at Less Than Fair Value: Sparklers from the People's Republic 
of China, 56 FR 20588 (May 6, 1991) (``Sparklers''), as amplified by 
Notice of Final Determination of Sales at Less Than

[[Page 41060]]

Fair Value: Silicon Carbide from the People's Republic of China, 59 FR 
22585 (May 2, 1994) (``Silicon Carbide''), 59 FR at 22586-87. In 
accordance with the separate-rates criteria, the Department assigns 
separate rates in NME cases only if respondents can demonstrate the 
absence of both de jure and de facto governmental control over export 
activities.
    In proceedings involving NME countries, the Department begins with 
a rebuttable presumption that all companies within the country are 
subject to government control and thus should be assessed a single 
antidumping duty rate. It is the Department's policy to assign all 
exporters of merchandise subject to investigation in an NME country 
this single rate unless an exporter can demonstrate that it is 
sufficiently independent so as to be entitled to a separate rate. As 
explained below, due to Maoming Changxing's failure to provide 
verifiable information with respect to its ownership and affiliations, 
it has not provided the information necessary for the Department to 
examine whether Maoming Changxing operates independently of de facto 
government control. Therefore, Maoming Changxing does not satisfy the 
standards for the assignment of a separate rate.
    In its questionnaire responses, Maoming Changxing provided 
information to the Department regarding its corporate structure, 
ownership, affiliations with other entities, and its export sales 
negotiation process. However, as discussed in detail in the Prelim 
Rescission Memo, critical information submitted on the record of this 
proceeding by Maoming Changxing could not be verified. Specifically, 
the Department could not verify the information submitted on the record 
of this new shipper review regarding Maoming Changxing's ownership due 
to its failure to document the transfer of incorporating capital into 
Maoming Changxing from its claimed parent companies or ultimate owners. 
Maoming Changxing also failed to provide the Department with a complete 
and official version of the capital verification report of one of its 
claimed parent companies. Further, Maoming Changxing withheld 
specifically requested information concerning the existence of an 
affiliated company. In addition, Maoming Changxing's statements on the 
record of this proceeding with respect to the source of Maoming 
Changxing's incorporating capital and the financial interests of 
various owners were found to be inaccurate at verification. See Maoming 
Changxing Verification Report and Prelim Rescission Memo. As a result, 
Maoming Changxing has not affirmatively proven that it is free from de 
facto government control. Specifically, Maoming Changxing's ownership 
could not be verified and the information submitted on the record with 
respect to Maoming Changxing's affiliations could not be verified, 
thereby precluding the Department from conducting an accurate separate 
rates analysis. Due to the proprietary nature of these issues, we 
cannot discuss them in detail in this notice. See Prelim Rescission 
Memo for a further discussion.\1\
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    \1\ In addition, the Department found at verification 
information contrary to Maoming Changxing's description of the sales 
negotiation and sales execution process, which, if a separate rates 
test were conducted, calls into question the de facto absence of 
government control over Maoming Changxing's export activities. 
However, due to Maoming Changxing's failure to substantiate its 
ownership and affiliations, these issues are not separately 
addressed in this notice. See also Prelim Rescission Memo.
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    Because of deficiencies between Maoming Changxing's responses and 
the information discovered at verification, the Department was unable 
to verify information concerning Maoming Changxing's formation and 
ownership. As a result, and consistent with the Department's 
determinations in prior cases, where the Department is unable to verify 
information submitted regarding a company's formation and ownership, 
that information cannot serve as the basis for the Department's 
determination regarding the company's eligibility for a separate rate. 
See Porcelain-on-Steel Cooking Ware from the People's Republic of 
China: Notice of Final Results of Antidumping Duty Administrative 
Review, 71 FR 24641 (April 26, 2006), and accompanying Issues and 
Decision Memorandum (``POS Cookware I&D Memo'') at Comment 1. 
Therefore, the Department is unable to conduct a separate rates test. 
Because Maoming Changxing chose not to disclose the existence of an 
affiliated company (see Prelim Rescission Memo), and because 
discrepancies in Maoming Changxing's disclosed corporate structure were 
not discovered until verification, the Department was not able to ask 
supplemental questions or consider this entity's relationship with the 
PRC government. In fact, as noted in the POS Cookware I&D Memo at 
Comment 1, ``it is fundamental that the Department be presented with 
all of the details of a respondent's corporate structure to adequately 
determine whether the entity qualifies for a separate rate.'' Further, 
in this case, despite numerous supplemental questions by the Department 
regarding Maoming Changxing's corporate structure and affiliation, 
Maoming Changxing failed to notify the Department of the existence of 
any inaccuracies in information it reported to the Department or seek 
guidance on the applicable reporting requirements, as contemplated in 
section 782(c)(1) of the Act.
    Therefore, because the Department was unable to determine the 
actual owners of Maoming Changxing, the Department was unable to 
determine: (1) whether the export prices are set by or are subject to 
the approval of a governmental agency; (2) whether the respondent has 
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 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; see also Notice of Final 
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol From 
the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
    Accordingly, as Maoming Changxing did not demonstrate that it was 
eligible for a separate rate, the Department will continue to consider 
Maoming Changxing part of the NME entity. Further, with respect to 
Maoming Changxing's qualifications as a new shipper, because the 
reported information with respect to its affiliated entities could not 
be verified, the Department was precluded from conducting a meaningful 
analysis to determine whether Maoming Changxing or its affiliated 
companies had not exported or produced the subject merchandise to the 
United States during the period of investigation pursuant to section 
751(a)(2)(B)(i)(II) of the Act. Consistent with the Department's 
practice, we have therefore determined that Maoming Changxing does not 
qualify as a new shipper under section 351.214(a) of the Department's 
regulations because it is part of an entity that shipped during the 
original period of investigation. Accordingly, we intend to rescind the 
new shipper review. See, e.g., Freshwater Crawfish Tail Meat From the 
People's Republic's of China: Rescission of New Shipper Reviews, 72 FR 
26782 (May 11, 2007); see also Brake Rotors from the People's Republic 
of China: Rescission of Second New Shipper Review and Final Results and 
Partial Rescission of First Antidumping Duty Administrative Review, 64 
FR 61581 (November 12, 1999).

[[Page 41061]]

Schedule for Final Results of Review

    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 19 CFR 351.309(c)(ii). 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. See 19 CFR 351.309(d).
    Any interested party may request a hearing within 30 days of 
publication of this notice in accordance with 19 CFR 351.310(c). 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. If a hearing is held, an 
interested party must limit its presentation only to arguments raised 
in its briefs. 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 or final rescission 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

    At the completion of this new shipper review, if a final rescission 
notice is published, a cash deposit of 112.81 percent ad valorem shall 
be collected for any entries produced and exported by Maoming 
Changxing. The Department intends to issue assessment instructions to 
CBP 15 days after the date of publication of these final results of 
review. Should the Department reach a final result other than a 
rescission, an appropriate antidumping duty rate will be calculated for 
both assessment and cash deposit purposes.
    This notice also serves as the only reminder to parties subject to 
administrative protective orders (``APO'') of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305(a)(3). Timely written 
notification of the return/destruction of APO material or conversion to 
judicial protective order is hereby requested. Failure to comply with 
the regulations and terms of an APO is a violation which is subject to 
sanctions.
    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: July 19, 2007.
Joseph A. Spetrini,
Deputy Assistant Secretary for Import Administration.
[FR Doc. E7-14461 Filed 7-25-07; 8:45 am]
BILLING CODE 3510-DS-S