[Federal Register Volume 76, Number 195 (Friday, October 7, 2011)]
[Notices]
[Pages 62349-62356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26069]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-848]


Preliminary Results Freshwater Crawfish Tail Meat From the 
People's Republic of China: of Antidumping Duty Administrative Review 
and Intent To Rescind Review in Part

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: In response to timely requests, 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). The period of review (POR) is 
September 1, 2009, through August 31, 2010.
    Although we have preliminarily determined that sales have not been 
made below normal value by Xiping Opeck Food Co., Ltd., our analysis of 
the applicable transactions requires additional information. See 
discussion below. We have preliminarily determined that sales have been 
made below normal value by China Kingdom (Beijing) Import & Export Co., 
Ltd.
    We invite interested parties to comment on these preliminary 
results. Parties who submit comments in this review are requested to 
submit with each argument (1) a statement of the issue and (2) a brief 
summary of the argument.

DATES: Effective Date: October 7, 2011.

FOR FURTHER INFORMATION CONTACT: Dmitry Vladimirov or Minoo Hatten, AD/
CVD Operations, Office 5, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
0665 and (202) 482-1690, respectively.

Background

    On September 15, 1997, the Department published in the Federal 
Register an amended final determination and antidumping duty order on 
freshwater crawfish tail meat from the PRC. 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). On September 1, 2010, the 
Department published in the Federal Register a notice of opportunity to 
request an administrative review of the order. See Antidumping or 
Countervailing Duty Order, Finding, or Suspended Investigation; 
Opportunity To Request Administrative Review, 75 FR 53635 (September 1, 
2010).
    On October 28, 2010, based on timely requests for an administrative 
review, the Department published in the Federal Register a notice of 
initiation of an administrative review of the antidumping duty order on 
freshwater crawfish tail meat from the PRC. See Initiation of 
Antidumping and Countervailing Duty Administrative Reviews, 75 FR 66349 
(October 28, 2010) (Initiation). The review was initiated with respect 
to China Kingdom (Beijing) Import & Export Co., Ltd. (China Kingdom), 
Shanghai Ocean Flavor International Trading Co., Ltd. (Shanghai Ocean 
Flavor), Xiping Opeck Food Co., Ltd. (Xiping Opeck), Xuzhou Jinjiang 
Foodstuffs Co., Ltd. (Xuzhou Jinjiang), Yancheng Hi-King Agriculture 
Developing Co., Ltd. (Yancheng Hi-King), and Nanjing Gemsen 
International Co., Ltd (Nanjing Gemsen).
    On November 18, 2010, we selected Xiping Opeck and Yancheng Hi-King 
for individual examination. See memorandum entitled ``Freshwater 
Crawfish Tail Meat from the People's Republic of China--Respondent 
Selection,'' dated November 18, 2010.
    The Department rescinded the review with respect to Yancheng Hi-
King in Freshwater Crawfish Tail Meat From the People's Republic of 
China: Rescission of Antidumping Duty Administrative

[[Page 62350]]

Review in Part, 76 FR 10879 (February 28, 2011).
    We extended the due date for the preliminary results of review by 
120 days to September 30, 2011. See Freshwater Crawfish Tail Meat From 
the People's Republic of China: Extension of Time Limit for Preliminary 
Results of Antidumping Duty Administrative Review, 76 FR 32357 (June 6, 
2011), and Freshwater Crawfish Tail Meat From the People's Republic of 
China: Extension of Time Limit for Preliminary Results of Antidumping 
Duty Administrative Review, 76 FR 43260 (July 20, 2011).
    We are conducting this review in accordance with section 751 of the 
Tariff Act of 1930, as amended (the Act).

Scope of the Order

    The product covered by the 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 (HTSUS) under item numbers 1605.40.10.10 and 
1605.40.10.90, which are the HTSUS numbers for prepared foodstuffs, 
indicating peeled crawfish tail meat and other, as introduced by U.S. 
Customs and Border Protection (CBP) in 2000, and HTSUS numbers 
0306.19.00.10 and 0306.29.00.00, which are reserved for fish and 
crustaceans in general. The HTSUS subheadings are provided for 
convenience and customs purposes only. The written description of the 
scope of the order is dispositive.

Intent To Rescind Review in Part

    In accordance with 19 CFR 351.213(d)(3), the Department may rescind 
an administrative review, ``in whole or only with respect to a 
particular exporter or producer, if {the Department{time}  concludes 
that, during the period covered by the review, there were no entries, 
exports, or sales of the subject merchandise * * *.'' Record evidence 
indicates that Shanghai Ocean Flavor, Xuzhou Jinjiang, and Nanjing 
Gemsen did not have any exports of subject merchandise during the POR. 
See the November 1, 2010, submissions from Shanghai Ocean Flavor and 
Nanjing Gemsen and the December 22, 2010, submission from Xuzhou 
Jinjiang. Moreover, we have reviewed the CBP entry data for the POR and 
found no evidence of exports from these three entities. See Memorandum 
to File entitled ``Freshwater Crawfish Tail Meat from the People's 
Republic of China--placing CBP data on the record of this review,'' 
dated November 3, 2010. Additionally, on January 10, 2011, we requested 
that CBP report any contrary information. To date, CBP has not 
responded to our inquiry \1\ and we have not received any evidence that 
these three entities had any shipments to the United States of subject 
merchandise during the POR. Therefore, pursuant to 19 CFR 
351.213(d)(3), the Department intends to rescind this review in part 
with respect to Shanghai Ocean Flavor, Xuzhou Jinjiang, and Nanjing 
Gemsen.
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    \1\ CBP only responds to the Department's inquiry when there are 
records of shipments from the company in question. See, e.g., 
Certain Hot-Rolled Flat-Rolled Carbon Quality Steel Flat Products 
From Brazil: Notice of Rescission of Antidumping Duty Administrative 
Review, 75 FR 65453, 65454 (October 25, 2010).
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Allegation of Middleman Dumping

    On June 7, 2011, the Crawfish Processors Alliance (CPA) made an 
allegation of middleman dumping. Between June 20, 2011, and August 19, 
2011, we received comments from Xiping Opeck and CPA concerning the 
allegation. As we explain in detail in the memorandum entitled 
``Freshwater Crawfish Tail Meat from the People's Republic of China--
Evaluation of an Allegation of Middleman Dumping and Nature of 
Transactions Pertaining to the Entries Under Review,'' dated 
concurrently with this notice, at this time we do not find a middleman 
dumping inquiry as such to be the appropriate vehicle by which to 
examine the transactions relevant to the entries subject to this 
review. The record evidence suggests, however, a lack of commercial 
soundness in the transactions reported by Xiping Opeck in this review 
and that another entity in the distribution channel plays a role in the 
pricing associated with the entries of subject merchandise in this 
review.\2\ Further inquiry and a determination on this issue is key in 
establishing whether another company in the distribution channel and/or 
Xiping Opeck is the entity properly subject to a dumping inquiry as an 
exporter of subject merchandise and ultimately responsible for the 
pricing of entries of crawfish tail meat into the United States at 
issue in this review. Consequently, we intend to issue a questionnaire 
to the entity alleged to be involved with entries subject to this 
review. After these preliminary results are published, we will issue 
our determination regarding the findings of our inquiry.
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    \2\ We are withholding the identity of the alleged middleman 
because Xiping Opeck's customer claimed business-proprietary 
treatment of this information.
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Non-Market-Economy Country Status

    The Department considers the PRC to be a non-market-economy (NME) 
country. In accordance with section 771(18)(C)(i) of the Act, any 
determination that a 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: Preliminary Results and Partial Rescission 
of the 2004/2005 Administrative Review and Preliminary Notice of Intent 
To Rescind the 2004/2005 New Shipper Review, 71 FR 26736 (May 8, 2006) 
(unchanged in 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 NME treatment for the PRC. Therefore, for these preliminary 
results of administrative review we have treated the PRC as an NME 
country and applied our current NME methodology in accordance with 
section 773(c) of the Act.

Surrogate Country

    In antidumping proceedings involving NME countries, pursuant to 
section 773(c)(1) of the Act, the Department generally bases normal 
value on the value of the NME producer's factors of production (FOP). 
In accordance with section 773(c)(4) of the Act, in valuing the FOP the 
Department uses, to the extent possible, the prices or costs of the FOP 
in one or more market-economy countries that are at a level of economic 
development comparable to that of the NME country which are significant 
producers of merchandise comparable to the subject merchandise. The 
Department has determined that India, Indonesia, the Philippines, Peru, 
Ukraine, and Thailand are countries that are at a level of economic 
development comparable to that of the PRC.\3\ 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. While none of the

[[Page 62351]]

countries the Department selected is a significant producer of 
freshwater crawfish tail meat,\4\ India has a seafood-processing 
industry that is comparable to the crawfish industry with respect to 
factory overhead, selling, general, and administrative (SG&A) expenses, 
and profit.\5\ Therefore, we have selected India as the primary 
surrogate country in which to value all inputs with the exception of 
live crawfish, the primary input, and the by-product, crawfish-shell 
scrap.
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    \3\ See Memorandum entitled ``Request for a List of Surrogate 
Countries for an Administrative Review of the Antidumping Duty Order 
on Freshwater Crawfish Tail Meat (``FCTM'') from the People's 
Republic of China (``PRC'')'' dated January 7, 2011.
    \4\ See Memorandum entitled ``Freshwater Crawfish Tail Meat from 
the People's Republic of China: Selection of a Surrogate Country,'' 
dated September 30, 2011 (Surrogate-Country Memo).
    \5\ Id.
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    As noted, India does not have a fresh-crawfish industry (although 
it has a sea-crawfish industry) and we have determined that other forms 
of seafood are not sufficiently comparable to crawfish to serve as 
surrogates for live crawfish. Accordingly, we have valued live crawfish 
using the only information available on the record with which to value 
live crawfish, data which was obtained from the same source that was 
used to value live crawfish in several previous segments of this 
proceeding, i.e., imports of live crawfish from Portugal into Spain as 
reported by Agencia Tributaria, the Spanish government agency 
responsible for trade statistics.\6\ Spain is a significant producer of 
comparable merchandise, i.e., whole processed crawfish,\7\ and there 
are publicly available import statistics for Spain.
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    \6\ For an example of a previous segment of the proceeding where 
this source was used, see Freshwater Crawfish Tail Meat From the 
People's Republic of China: Preliminary Results of Antidumping Duty 
Administrative and New-Shipper Reviews, 75 FR 34100 (June 16, 2010) 
(unchanged in Freshwater Crawfish Tail Meat From the People's 
Republic of China: Final Results of Antidumping Duty Administrative 
and New-Shipper Reviews, 75 FR 79337 (December 20, 2010)).
    \7\ See Surrogate-Country Memo.
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    We have selected Indonesia as a secondary surrogate country for 
purposes of valuing the crawfish shell by-product because there are no 
appropriate Indian surrogate values for crawfish shell by-product on 
the record of this review and because the Indonesian pricing data are 
the only information available on the record with which to value 
crawfish shells. In addition, we find that Indonesia is appropriate to 
use for the following reasons: (a) It is at a level of economic 
development comparable to the PRC; (b) it produces wet crab and shrimp 
shells which are merchandise comparable to the shell by-product; (c) it 
has publicly available data, i.e., a public price quote from an 
Indonesian company that has been used in prior segments of this 
proceeding.\8\
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    \8\ See Memorandum entitled ``Surrogate Valuation of Shell 
Scrap: Freshwater Crawfish Tail Meat from the People's Republic of 
China, 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, which has 
been placed on the record of this review.
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Separate Rates

    A designation of a country as an NME remains in effect until it is 
revoked by the Department. See section 771(18)(C) of the Act. In 
proceedings involving NME countries, the Department has a rebuttable 
presumption that all companies within the country are subject to 
government control and thus should be assessed a single antidumping 
duty rate. See, e.g., 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), and 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 process by which exporters and producers may obtain 
separate rate status in NME proceedings. See Initiation, 75 FR at 
66350. It is the Department's policy to assign all exporters of 
merchandise subject to a proceeding involving 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. The Department 
assigns separate rates in NME proceedings only if respondents can 
demonstrate the absence of both de jure and de facto government control 
over export activities under a test developed by the Department and 
described in Final Determination of Sales at Less Than Fair Value: 
Sparklers From the People's Republic of China, 56 FR 20588 (May 6, 
1991) (Sparklers), and 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).
    In this administrative review, Xiping Opeck and China Kingdom are 
the only companies that submitted a separate rate certification. 
Additionally, the Department received a complete response to the 
antidumping questionnaire from Xiping Opeck which contained additional 
information pertaining to the company's eligibility for a separate 
rate.

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; (3) any other formal 
measures by the government decentralizing control of companies. See 
Sparklers, 56 FR at 20589.
    Xiping Opeck and China Kingdom have both placed on the 
administrative record a copy of their business licenses and Foreign 
Trade Operator Registration Records. Xiping Opeck also placed on the 
administrative record a copy of the company's Articles of 
Incorporation. None of these documents contains restrictions with 
respect to export activities. In its separate rate certifications, 
Xiping Opeck and China Kingdom both certified the following concerning 
the companies during the POR: (1) As with the previous segment of the 
proceeding in which each firm was granted a separate rate (previous 
Granting Period), there were no government laws or regulations that 
controlled each firm's export activities; (2) the ownership under which 
the firm registered itself with the official government business 
license issuing authority remains the same as for the previous Granting 
Period; (3) the firm had a valid PRC Export Certificate of Approval, 
now referred to and labeled as a Registration Form for Foreign Trade 
Operator; (4) as in the previous Granting Period, in order to conduct 
export activities, the firm was not required by law or regulation at 
any level of government to possess additional certificates or other 
documents related to the legal status and/or operation of its business 
beyond those discussed above; (5) PRC government laws and legislative 
enactments applicable to Xiping Opeck and China Kingdom remained the 
same as in the previous Granting Period. In prior cases, we have found 
an absence of de jure control absent proof on the record to the 
contrary. See, e.g., Notice of Final Determination of Sales at Less 
Than Fair Value: Furfuryl Alcohol From the People's Republic of China, 
60 FR 22544 (May 8, 1995) (Furfuryl Alcohol). We have no information in 
this review that would cause us to reconsider this determination.
    Further, prior verifications have confirmed that there are no 
commodity-specific export licenses required and no quotas for the 
seafood category ``Other,''

[[Page 62352]]

which includes crawfish, in China's Tariff and Non-Tariff Handbook for 
1996 and 1997. See Freshwater Crawfish Tail Meat From The People's 
Republic of China; Preliminary Results of New Shipper Review, 64 FR 
8543 (February 22, 1999) (1999 Crawfish NSR Preliminary Results) 
(unchanged in Freshwater Crawfish Tail Meat From the People's Republic 
of China; Final Results of New Shipper Review, 64 FR 27961 (May 24, 
1999)).
    We have confirmed previously that freshwater crawfish tail meat 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 1999 
Crawfish NSR Preliminary Results, 64 FR at 8544.
    The Department has found previously that the Company Law of the 
People's Republic of China governing business activities of Xiping 
Opeck and China Kingdom, made effective on July 1, 1994, with the 
amended version promulgated on August 28, 2004, states that a company 
is an enterprise legal person, that shareholders shall assume liability 
towards the company to the extent of their shareholdings, and that the 
company shall be liable for its debts to the extent of all its assets. 
See Freshwater Crawfish Tail Meat From the People's Republic of China: 
Preliminary Results and Partial Rescission of the 2005-2006 Antidumping 
Duty Administrative Review and Preliminary Intent to Rescind 2005-2006 
New Shipper Reviews, 72 FR 57288 (October 9, 2007) (unchanged in 
Freshwater Crawfish Tail Meat From the People's Republic of China: 
Final Results and Partial Rescission of the 2005-2006 Antidumping Duty 
Administrative Review and Rescission of 2005-2006 New Shipper Reviews, 
73 FR 20249 (April 15, 2008)).
    Additionally, the Foreign Trade Law of the People's Republic of 
China also indicates a lack of de jure government control. 
Specifically, this document identifies the rights and responsibilities 
of organizations engaging in foreign trade, grants autonomy to foreign-
trade operators in management decisions, and establishes the foreign-
trade operator's accountability for profits and losses. Based on the 
foregoing, the Department has preliminarily determined that there is an 
absence of de jure governmental control over the export activities of 
Xiping Opeck and China Kingdom.

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 
Silicon Carbide, 59 FR at 22587. Therefore, the Department has 
determined that an analysis of de facto control is critical in 
determining whether the respondents are, in fact, subject to a degree 
of government control which would preclude the Department from 
assigning separate rates. The Department typically considers the 
following four factors in evaluating whether a respondent is subject to 
de facto government control of its export functions: (1) Whether the 
export prices are set by, or subject to the approval of, a government 
agency; (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 management; (4) whether the respondent retains the 
proceeds of its export sales and makes independent decisions regarding 
the disposition of profits or financing of losses. See Silicon Carbide, 
59 FR at 22586-87, and Furfuryl Alcohol, 60 FR at 22545.
    Xiping Opeck and China Kingdom have each made the following 
assertions: (1) It establishes its own export prices; (2) it negotiates 
contracts without guidance from any government entities or 
organizations; (3) it makes its own personnel decisions; (4) it retains 
the proceeds of its export sales, uses profits according to its 
business needs, and has the authority to sell its assets and to obtain 
loans.
    Based on the information on the record of this review, the 
Department has preliminarily determined that there is an absence of de 
facto governmental control over the export activities of Xiping Opeck 
and China Kingdom. Given that the Department has found that Xiping 
Opeck and China Kingdom operate free of de jure and de facto 
governmental control, we have preliminarily determined that Xiping 
Opeck and China Kingdom have satisfied the criteria for a separate 
rate.

Separate Rate for a Non-Selected Company

    In accordance with section 777A(c)(2)(B) of the Act, we selected 
Xiping Opeck and Yancheng Hi-King for individual examination because we 
did not have the resources to examine all companies for which a review 
was requested. See Memorandum entitled ``Freshwater Crawfish Tail Meat 
From the People's Republic of China--Respondent Selection'' dated 
November 18, 2010. China Kingdom is the only exporter of crawfish tail 
meat from the PRC that demonstrated its eligibility for a separate rate 
which was not selected for individual examination in this review.
    The statute and the Department's regulations do not address the 
establishment of a rate to be applied to individual companies not 
selected for examination when the Department limits its examination in 
an administrative review pursuant to section 777A(c)(2) of the Act. 
Generally we have looked to section 735(c)(5) of the Act, which 
provides instructions for calculating the all-others rate in an 
investigation, for guidance when calculating the rate for respondents 
we did not examine in an administrative review. Section 735(c)(5)(A) of 
the Act articulates a preference that we are not to calculate an all-
others rate using any zero or de minimis margins or any margins based 
entirely on facts available. Accordingly, the Department's usual 
practice has been to average the rates for the selected companies, 
excluding zero, de minimis, and rates based entirely on facts 
available. See Ball Bearings and Parts Thereof From France, Germany, 
Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty 
Administrative Reviews and Rescission of Reviews in Part, 73 FR 52823, 
52824 (September 11, 2008), and accompanying Issues and Decision (I&D) 
Memorandum at Comment 16. Section 735(c)(5)(B) of the Act also provides 
that, where all margins are zero, de minimis, or based entirely on 
facts available, we may use ``any reasonable method'' for assigning the 
rate to non-selected respondents, including ``averaging the estimated 
weighted-average dumping margins determined for the exporters and 
producers individually investigated.''
    In previous cases, the Department has determined that a 
``reasonable method'' to use when, as here, the rates of the 
respondents selected for individual examination are zero and de minimis 
is to apply to those companies not selected for individual examination 
(but eligible for a separate rate in NME cases) the average of the most 
recently determined rates that are not zero, de minimis, or based 
entirely on facts available (which may be from a prior administrative 
review or a new shipper review).\9\ If any

[[Page 62353]]

such non-selected company had its own calculated rate that is 
contemporaneous with or more recent than such prior determined rates, 
however, the Department has applied such individual rate to the non-
selected company in the review in question, including when that rate is 
zero or de minimis.\10\ In this case, there is only one non-selected 
company under review that is eligible for a separate rate and this 
company received its own calculated rate that is contemporaneous with 
or more recent than the most recent rates determined for other 
companies that are not zero, de minimis, or based entirely on facts 
available. Accordingly, we have concluded that in this case a 
reasonable method for determining the rate for the non-selected 
company, China Kingdom, is to apply its most recent individually 
calculated rate. Pursuant to this method, we are preliminarily 
assigning a rate of 18.87 percent to China Kingdom, its calculated rate 
in the previous administrative review. See Freshwater Crawfish Tail 
Meat From the People's Republic of China: Final Results of Antidumping 
Duty Administrative and New-Shipper Reviews, 75 FR 79337 (December 20, 
2010). In assigning this separate rate, we did not impute the actions 
of any other companies to the behavior of the company not individually 
examined but based this determination on record evidence that may be 
deemed reasonably reflective of the potential dumping margin for the 
non-individually examined company, China Kingdom, in this 
administrative review.
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    \9\ See Certain Frozen Warmwater Shrimp From the People's 
Republic of China: Preliminary Results and Preliminary Partial 
Rescission of Fifth Antidumping Duty Administrative Review, 76 FR 
8338, 8342 (February 14, 2011) (unchanged in Administrative Review 
of Certain Frozen Warmwater Shrimp From the People's Republic of 
China: Final Results and Partial Rescission of Antidumping Duty 
Administrative Review, 76 FR 51940 (August 19, 2011)); see also 
Administrative Review of Certain Frozen Warmwater Shrimp From the 
People's Republic of China: Final Results and Partial Rescission of 
Antidumping Duty Administrative Review, 75 FR 49460, 49463 (August 
13, 2010), and Amanda Foods (Vietnam) Ltd. v. United States, 2011 WL 
1423126 (CIT April 14, 2011).
    \10\ See Certain Frozen Fish Fillets From the Socialist Republic 
of Vietnam: Notice of Preliminary Results of the New Shipper Review 
and Fourth Antidumping Duty Administrative Review and Partial 
Rescission of the Fourth Administrative Review, 73 FR 52015 
(September 8, 2008), Certain Frozen Fish Fillets From the Socialist 
Republic of Vietnam: Final Results of the Antidumping Duty 
Administrative Review and New Shipper Reviews, 74 FR 11349 (March 
17, 2009) (changing rate for non-selected respondents because the 
final calculated rate for the selected respondent was above de 
minimis) (unchanged in Certain Frozen Fish Fillets from the 
Socialist Republic of Vietnam: Amended Final Results of the Fourth 
Antidumping Duty Administrative Review, 74 FR 17816 (April 17, 
2009)); see also Certain Frozen Warmwater Shrimp From the Socialist 
Republic of Vietnam: Final Results and Final Partial Rescission of 
Antidumping Duty Administrative Review, 74 FR 47191, 47195 
(September 15, 2009), and accompanying I&D Memorandum at Comment 16.
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U.S. Price

    In accordance with section 772(a) of the Act, we based Xiping 
Opeck's U.S. price on export price because the first sales to 
unaffiliated purchasers were made prior to importation and constructed 
export price was not otherwise warranted by the facts on the record. We 
calculated export price based on the packed Cost and Freight price to 
the first unaffiliated purchaser in the United States. In accordance 
with section 772(c) of the Act, we calculated net export price by 
deducting foreign inland-freight expenses, foreign brokerage and 
handling expenses, ocean-freight expenses, and cold-storage expenses 
from the starting price (gross unit price) charged to the first 
unaffiliated customer in the United States. We based all movement 
expenses on surrogate values because a PRC company provided the 
movement services for Xiping Opeck (see the ``Normal Value'' section of 
this notice for further details).

Normal Value

    Section 773(c)(1) of the Act provides that the Department shall 
determine normal value using an FOP methodology if the merchandise is 
exported from an NME country and the available information does not 
permit the calculation of normal value using home-market prices, third-
country prices, or constructed value under section 773(a) of the Act. 
The Department uses an FOP methodology because the presence of 
government controls on various aspects of NMEs renders price 
comparisons and the calculation of production costs invalid under its 
normal methodologies. See Tapered Roller Bearings and Parts Thereof, 
Finished or Unfinished, From the People's Republic of China: 
Preliminary Results of Antidumping Duty Administrative Review and 
Notice of Intent to Rescind in Part, 70 FR 39744, 39754 (July 11, 2005) 
(unchanged in Tapered Roller Bearings and Parts Thereof, Finished and 
Unfinished, from the People's Republic of China: Final Results of 2003-
2004 Administrative Review and Partial Rescission of Review, 71 FR 2517 
(January 17, 2006)).
    In accordance with section 773(c) of the Act, we relied on the FOP 
data reported by Xiping Opeck for the POR.\11\ We calculated normal 
value by adding together the value of the FOP, general expenses, 
profit, and packing costs. Specifically, we valued material, labor, 
energy, and packing by multiplying the reported per-unit rates for the 
factors consumed in producing the subject merchandise by the average 
per-unit surrogate value of the factor. In addition, we added freight 
costs to the surrogate costs that we calculated for material inputs. We 
calculated freight costs by multiplying surrogate freight rates by the 
shorter of the reported distance from the domestic supplier to the 
factory that produced the subject merchandise or the distance from the 
nearest seaport to the factory that produced the subject merchandise, 
as appropriate. This adjustment is in accordance with the decision by 
the United States Court of Appeals for the Federal Circuit in Sigma 
Corp. v. United States, 117 F.3d 1401, 1407-1408 (Fed. Cir. 1997). We 
increased the calculated costs of the FOP for surrogate general 
expenses and profit. See Memorandum to the File entitled ``Fresh 
Crawfish Tail Meat from the People's Republic of China: Surrogate-Value 
Memorandum,'' dated September 30, 2011 (Surrogate-Value Memo).
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    \11\ We based the values of the FOPs on surrogate values (see 
``Surrogate Values'' section).
---------------------------------------------------------------------------

Surrogate Values

    In selecting surrogate values, we considered the quality, 
specificity, and contemporaneity of the data. For these preliminary 
results, in selecting the best available data for valuing FOPs in 
accordance with section 773(c)(1) of the Act, we followed our practice 
of choosing publicly available 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)). We also considered the quality of the source of surrogate 
information in selecting surrogate values. See Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Cased Pencils 
From the People's Republic of China, 59 FR 55625, 55633 (November 8, 
1994). Where we could only obtain surrogate values that were not 
contemporaneous with the POR, we inflated the surrogate values using, 
where appropriate, the Indian Wholesale Price Index (Indian WPI), the 
Indonesian Wholesale Price Index (Indonesian WPI), or Spanish Wholesale 
Price Index (Spanish WPI), as

[[Page 62354]]

published in the International Financial Statistics of the 
International Monetary Fund. See Surrogate-Value Memo.
    As explained in the legislative history of the Omnibus Trade and 
Competitiveness Act of 1988, the Department continues to apply its 
long-standing practice of disregarding surrogate values if it has a 
reason to believe or suspect the source data may be subsidized.\12\ In 
this regard, we have found previously that it is appropriate to 
disregard such prices from India, Indonesia, South Korea, and Thailand 
because we have determined that these countries maintain broadly 
available, non-industry specific export subsidies.\13\ Based on the 
existence of these subsidy programs that were generally available to 
all exporters and producers in these countries at the time of the POR, 
the Department finds that it is reasonable to infer that all exporters 
from India, Indonesia, South Korea, and Thailand may have benefitted 
from these subsidies. Additionally, we disregarded prices from NME 
countries.\14\ Finally, imports that were labeled as originating from 
an ``unspecified'' country were excluded from the average value because 
the Department could not be certain that they were not from either an 
NME country or a country with generally available export subsidies.\15\
---------------------------------------------------------------------------

    \12\ Omnibus Trade and Competitiveness Act of 1988, Conf. Report 
to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd Sess. 
(1988) at 590, reprinted in 1988 U.S.C.C.A.N. 1547, 1623-24.
    \13\ See, e.g., Carbazole Violet Pigment 23 from India: Final 
Results of the Expedited Five-Year (Sunset) Review of the 
Countervailing Duty Order, 75 FR 13257 (March 19, 2010), and 
accompanying I&D Memorandum at 4-5, Certain Cut-to-Length Carbon-
Quality Steel Plate from Indonesia: Final Result of Expedited Sunset 
Review, 70 FR 45692 (August 8, 2005), and accompanying I&D 
Memorandum at 4, Corrosion-Resistant Carbon Steel Flat Products from 
the Republic of Korea: Final Results of Countervailing Duty 
Administrative Review, 74 FR 2512 (January 15, 2009), and 
accompanying I&D Memorandum at 17, 19-20, and Final Affirmative 
Countervailing Duty Determination: Certain Hot-Rolled Carbon Steel 
Flat Products from Thailand, 66 FR 50410 (October 3, 2001), and 
accompanying I&D Memorandum at 23.
    \14\ See, e.g., Certain Kitchen Appliance Shelving and Racks 
From the People's Republic of China: Preliminary Determination of 
Sales at Less Than Fair Value and Postponement of Final 
Determination, 74 FR 9591, 9600 (March 5, 2009) (unchanged in 
Certain Kitchen Appliance Shelving and Racks From the People's 
Republic of China: Final Determination of Sales at Less Than Fair 
Value, 74 FR 36656 (July 24, 2009)).
    \15\ Id.
---------------------------------------------------------------------------

    We used the following surrogate values in our margin calculations 
for these preliminary results of review. We valued coal and packing 
materials using September 2009-August 2010 weighted-average Indian 
import values derived from the Global Trade Atlas online (GTA). The 
Indian import statistics that we obtained from the GTA were published 
by the Directorate General of Commercial Intelligence & Statistics, 
Ministry of Commerce of India, and are contemporaneous with the POR.
    We valued whole live crawfish using the publicly available data for 
Spanish imports of whole live crawfish from Portugal during the 2008-
2009 POR and inflated this value using the Spanish WPI to make it 
contemporaneous with the POR.\16\ We valued the crawfish shell by-
product using a 2001 price quote from Indonesia for wet crab and shrimp 
shells and inflated this value using the Indonesian WPI to make it 
contemporaneous with the POR.
---------------------------------------------------------------------------

    \16\ We determined that it is not appropriate to use the 
contemporaneous Spanish import prices because the volume of 
shipments from Portugal during the POR does not appear to reflect 
the industry's typical commercial quantity. See, e.g., Freshwater 
Crawfish Tail Meat From the People's Republic of China: Notice of 
Preliminary Results of Antidumping Duty Administrative Review and 
Preliminary Partial Rescission of Antidumping Duty Administrative 
Review, 66 FR 52100, 52105 (October 12, 2001) (unchanged in 
Freshwater Crawfish Tail Meat From the People's Republic of China: 
Final Results of Antidumping Duty Administrative and New-Shipper 
Reviews, 75 FR 79337 (December 20, 2010)) (2008-2009 Crawfish 
Review); see also Surrogate-Value Memo for further details.
---------------------------------------------------------------------------

    We valued water using data from the Maharashtra Industrial 
Development Corporation (http://www.midcindia.org) because this source 
includes a wide range of industrial water tariffs. Specifically, this 
source provides numerous industrial water rates within the Maharashtra 
province for December 2009 (for the ``inside industrial areas'' usage 
category and for the ``outside industrial areas'' usage category). We 
excluded industrial areas where either no data were reported or a ``0'' 
was reported. We inflated the surrogate value for water using the 
Indian WPI to make it contemporaneous with the POR.
    To value electricity, we used March 2008 electricity price rates 
from Electricity Tariff & Duty and Average Rates of Electricity Supply 
in India, published by the Central Electricity Authority of the 
Government of India. As the rates listed in this source became 
effective on a variety of different dates, we are not adjusting the 
average value for inflation.
    We valued non-refrigerated truck-freight expenses using an average 
of the per-unit average rates for September 2009, December 2009, March 
2010, and June 2010 which we calculated from data at http://www.infobanc.com/logistics/logtruck.htm. The logistics section of this 
Web site contains rates for inland-freight trucking between many large 
Indian cities. We inflated (or deflated, depending on the month) the 
per-unit average truck-freight rates for the selected months of the POR 
using the Indian WPI to make it contemporaneous with the POR. We valued 
refrigerated-truck freight expenses based on price quotations for April 
2004 from CTC Freight Carriers of Delhi, India, placed originally on 
the record of the antidumping investigation of certain frozen warmwater 
shrimp from the PRC. We inflated this surrogate value using the Indian 
WPI.
    We valued brokerage and handling expenses using a price list of 
export procedures necessary to export a standardized cargo of goods in 
India. The price list is compiled based on a survey case study of the 
procedural requirements for trading a standard shipment of goods by 
ocean transport in India that is published in Doing Business 2011: 
India, published by the World Bank. Because these data were current 
throughout the POR, we did not inflate the value for brokerage and 
handling. See Surrogate-Value Memo for further details.
    We valued international freight using the data obtained from the 
Descartes Carrier Rate Retrieval Database (Descartes) which is 
available at http://descartes.com/. The Descartes database is a Web-
based service which publishes the ocean freight rates of numerous 
carriers. In prior administrative reviews the Department did not use 
the Descartes database as an ocean freight surrogate value source 
because the data did not appear to be publicly available. See, e.g., 
Fresh Garlic from the People's Republic of China: Final Results and 
Partial Rescission of Antidumping Duty Administrative Review and Final 
Results of New Shipper Reviews, 71 FR 26329 (May 4, 2006), and 
accompanying I&D Memorandum at Comment 7. Upon reexamination, however, 
we have found that this database is accessible to government agencies 
without charge in compliance with Federal Maritime Commission 
regulations and, thus, we now find that this is a publicly available 
source.
    In addition to being publicly available, the Descartes data reflect 
rates for multiple carriers, the Web site reports rates on a daily 
basis, the price data are based on routes that correspond closely to 
those used by the respondent, and they reflect merchandise similar to 
subject merchandise. Therefore, the Descartes data are product-
specific, publicly available, a broad-market average, and 
contemporaneous with the POR. Accordingly, we find that the Descartes 
database is the best available source for valuing international freight 
on the record of this review because it

[[Page 62355]]

provides rates that are representative of the entire POR and a broader 
representation of product-specificity.
    While we find that the Descartes database is the superior source on 
the record of the reviews for valuing international freight, to make 
the source less impractical, we had to define certain parameters in our 
selection of data. For example, we calculated the period-average 
international freight rate by obtaining rates from multiple carriers 
for a single day in each quarter of the POR. Further, we did not 
include rates in the period-average international freight calculation 
that we determined were from NME carriers. Additionally, we excluded 
from any individual rate calculation any charges that are covered by 
the brokerage and handling expenses that the respondent incurred and 
which are valued by the appropriate surrogate value. See Surrogate-
Value Memo for further details.
    For Xiping Opeck, we valued cold storage using a 2010-2011 long-
term lease price quote obtained from Snowman Frozen Foods Ltd., an 
Indian national company involved in the distribution and storage of 
frozen and chilled foods. Because data reported in this source were not 
contemporaneous with the POR, we deflated the surrogate value for cold 
storage using the Indian WPI. See Surrogate-Value Memo. This source was 
used in the 2008-2009 Crawfish Review. When the product is fully 
processed, packed, and then placed into a cold-storage facility not 
located at the production/processing facility prior to the date of 
shipment from the exporting country, our practice is to treat cold 
storage as a movement expense and deduct it from the U.S. price. See, 
e.g., Fresh Garlic From the People's Republic of China: Final Results 
of Antidumping Duty New Shipper Reviews, 69 FR 46498, 46500 (August 3, 
2004).
    Previously, with respect to valuation of labor inputs, the 
Department used regression-based wages that captured the worldwide 
relationship between per capita Gross National Income (GNI) and hourly 
manufacturing wages, pursuant to 19 CFR 351.408(c)(3), to value the 
respondent's cost of labor. On May 14, 2010, the Court of Appeals for 
the Federal Circuit (CAFC) in Dorbest Ltd. v. United States, 604 F.3d 
1363, 1372 (Fed. Cir. 2010) (Dorbest), invalidated 19 CFR 
351.408(c)(3). As a consequence of the CAFC's ruling in Dorbest, the 
Department no longer relies on the regression-based wage rate 
methodology described in its regulations. On February 18, 2011, the 
Department published in the Federal Register a request for public 
comment on the interim methodology and the data sources. See 
Antidumping Methodologies in Proceedings Involving Non-Market 
Economies: Valuing the Factor of Production: Labor; Request for 
Comment, 76 FR 9544 (February 18, 2011).
    On June 21, 2011, the Department revised its methodology for 
valuing the labor input in NME antidumping proceedings. See Antidumping 
Methodologies in Proceedings Involving Non-Market Economies: Valuing 
the Factor of Production: Labor, 76 FR 36092 (June 21, 2011) (Labor 
Methodologies). In Labor Methodologies, the Department determined that 
the best methodology to value the labor input is to use industry-
specific labor rates from the primary surrogate country. Additionally, 
the Department determined that the best data source for industry-
specific labor rates is Chapter 6A: Labor Cost in Manufacturing, from 
the International Labor Organization (ILO) Yearbook of Labor Statistics 
(Yearbook).
    For these preliminary results, we have calculated the labor inputs 
using the method described in Labor Methodologies. To value Xiping 
Opeck's labor inputs, we relied on data reported by India to the ILO in 
Chapter 6A of the Yearbook. We find further that the two-digit 
description under ISIC-Revision 3 (i.e., 15--``Manufacture of Food 
Products and Beverages'') is the best available information on the 
record because it is specific to the industry being examined and is 
therefore derived from industries that produce comparable merchandise. 
Specifically, this category captures class 1512--``Processing and 
Preserving of Fish and Fish Products.'' Accordingly, relying on Chapter 
6A of the Yearbook, we calculated the labor inputs using labor data 
reported by India to the ILO under Sub-Classification 15 of the ISIC-
Revision 3 standard in accordance with section 773(c)(4) of the Act. 
The ILO data reported under Chapter 6A of the Yearbook reflects all 
costs related to labor, including wages, benefits, housing, training, 
etc. A more detailed description of the wage-rate calculation 
methodology is provided in the Surrogate-Value Memo.
    We valued SG&A, factory overhead costs, and profit using the 2007-
2008 financial statements of Nekkanti Sea Foods Ltd., an Indian seafood 
processor. See Surrogate-Value Memo. Because the financial statements 
used to calculate the surrogate financial ratios do not include 
itemized detail of labor costs, we did not make adjustments to certain 
labor costs in the surrogate financial ratios. See Labor Methodologies, 
76 FR at 36093.

Currency Conversion

    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. These 
exchange rates are available on the IA Web site at http://ia.ita.doc.gov/exchange/index.html.

Preliminary Results of Review

    As a result of the administrative review, we preliminarily 
determine that the following weighted-average percentage dumping 
margins exist for the period September 1, 2009, through August 31, 
2010:

------------------------------------------------------------------------
                                                             Margin
                        Company                             (percent)
------------------------------------------------------------------------
Xiping Opeck Food Co., Ltd............................              0.00
China Kingdom (Beijing) Import & Export Co., Ltd......             18.87
------------------------------------------------------------------------

Comments

    We will disclose the calculations used in our analysis to 
interested parties to this review within five days of the date of 
publication of this notice. See 19 CFR 351.224(b).
    Case briefs from interested parties may be submitted not later than 
seven (7) days after the date on which we issue our determination 
regarding the findings of our inquiry into the selling practices of the 
entity alleged to be involved with entries subject to this review. See 
19 CFR 351.309(c)(1)(ii). Rebuttal briefs from interested parties, 
limited to the issues raised in the case briefs, may be submitted not 
later than five days after the time limit for filing the case briefs or 
comments. See 19 CFR 351.309(d)(1).
    Any interested party may request a hearing no later than the date 
on which the case briefs are due. See 19 CFR 351.310. Interested 
parties who wish to request a hearing or to participate in a hearing if 
a hearing is requested must submit a written request to the Assistant 
Secretary for Import Administration. Requests should contain the 
following information: (1) The party's name, address, and telephone 
number; (2) the number of participants; (3) a list of issues to be 
discussed. See 19 CFR 351.310(c). Issues raised in the hearing will be 
limited to those raised in the case briefs. See 19 CFR 351.310(c).
    If requested, any hearing will be held two days after the scheduled 
date for submission of rebuttal briefs. See 19

[[Page 62356]]

CFR 351.310(d). Parties who submit case briefs or rebuttal briefs in 
this review are requested to submit with each argument a statement of 
the issue, a summary of the arguments not exceeding five pages, and a 
table of statutes, regulations, and cases cited. See 19 CFR 
351.309(c)(2).
    The Department intends to issue the final results of this 
administrative review, including the results of its analysis of issues 
raised in any such written briefs or at the hearing, if held, not later 
than 120 days after the date of publication of this notice. See section 
751(a)(3)(A) of the Act.

Assessment Rates

    The Department shall determine, and CBP shall assess, antidumping 
duties on all appropriate entries. In accordance with 19 CFR 
351.212(b)(1), we have calculated importer-specific (or customer-
specific) assessment rates for merchandise subject to this review. 
Based on these preliminary results, we will direct CBP to assess no 
dumping duties on each entry made by the sole importer Xiping Opeck 
reported as its customer.
    For China Kingdom, we will instruct CBP to apply the rate listed 
above to all entries of subject merchandise exported by this company.
    We intend to issue assessment instructions to CBP 15 days after the 
date of publication of the final results of review.

Cash-Deposit Requirements

    The following cash-deposit requirements will be effective upon 
publication of the final results of review for all shipments of the 
subject merchandise entered, or withdrawn from warehouse, for 
consumption on or after the publication date as provided by section 
751(a)(2)(C) of the Act: (1) For subject merchandise exported by Xiping 
Opeck and China Kingdom, the cash-deposit rate will be that established 
in the final results of review; (2) for previously reviewed or 
investigated companies not listed above that have separate rates, the 
cash-deposit rate will continue to be the company-specific rate 
published for the most recent period; (3) for all other PRC exporters 
of subject merchandise which have not been found to be entitled to a 
separate rate, the cash-deposit rate will be PRC-wide rate of 223.01 
percent; (4) for all non-PRC exporters of subject merchandise the cash-
deposit rate will be the rate applicable to the PRC entity that 
supplied that exporter. These deposit requirements, when imposed, shall 
remain in effect until further notice.

Notification to Importers

    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 351.402(f)(2) 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 review and notice are in accordance with sections 751(a)(1), 
751(a)(2)(B)(iv), 751(a)(3), and 777(i) of the Act.

     Dated: September 30, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-26069 Filed 10-6-11; 8:45 am]
BILLING CODE 3510-DS-P