[Federal Register Volume 77, Number 69 (Tuesday, April 10, 2012)]
[Notices]
[Pages 21529-21532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8601]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-848]


Freshwater Crawfish Tail Meat From the People's Republic of 
China: Final Results of Antidumping Duty Administrative Review and 
Rescission of Review in Part

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

SUMMARY: On October 7, 2011, the Department of Commerce published the 
preliminary results of the administrative review of the antidumping 
duty order on freshwater crawfish tail meat from the People's Republic 
of China (PRC). The review covers five exporters. The period of review 
is September 1, 2009, through August 31, 2010.
    Based on our analysis of the comments received, we have made 
changes in the margin calculations for one company. Therefore, the 
final results differ from the preliminary results. The final weighted-
average dumping margins for the reviewed firms are listed below in the 
section entitled ``Final Results of the Review.''

DATES: Effective Date: April 10, 2012.

FOR FURTHER INFORMATION CONTACT: Dmitry Vladimirov or Minoo Hatten, AD/
CVD Operations, Office 1, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
0665 or (202) 482-1690, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On October 7, 2011, the Department of Commerce (the Department) 
published Freshwater Crawfish Tail Meat From the People's Republic of 
China: Preliminary Results of Antidumping Duty Administrative Review 
and Intent To Rescind Review in Part, 76 FR 62349 (October 7, 2011) 
(Preliminary Results),\1\ in the Federal Register. The administrative 
review covers Xiping Opeck Food Co., Ltd. (Xiping Opeck), Shanghai 
Ocean Flavor International Trading Co., Ltd. (Shanghai Ocean Flavor), 
China Kingdom (Beijing) Import & Export Co., Ltd. (China Kingdom), 
Xuzhou Jinjiang Foodstuffs Co., Ltd. (Xuzhou Jinjiang), and Nanjing 
Gemsen International Co., Ltd. (Nanjing Gemsen).
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    \1\ In publishing the Preliminary Results, the Federal Register 
distorted the title of the notice; the Federal Register thereafter 
published the correct title of the notice in 76 FR 65497 (October 
21, 2011).
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    On January 25, 2012, we published Freshwater Crawfish Tail Meat 
from the People's Republic of China: Extension of Time Limit for Final 
Results of Antidumping Duty Administrative Review, 77 FR 3730 (January 
25, 2012), in which we extended fully the deadline for the final 
results to April 4, 2012.
    On February 13, 2012, we determined a rate for Xiping Opeck, the 
sole mandatory respondent in this review, on the basis of adverse facts 
available (AFA). See memorandum to Paul Piquado, Assistant Secretary 
for Import Administration, entitled ``Freshwater Crawfish Tail Meat 
from the People's Republic of China--Post-Preliminary Analysis 
Memorandum--The Use of Adverse Facts Available,'' dated February 13, 
2012 (AFA Memo). We invited interested parties to comment on the 
Preliminary Results and the AFA Memo.
    We received case and rebuttal briefs from Xiping Opeck and the 
petitioner, the Crawfish Processors Alliance. No interested party 
requested a hearing.
    The Department has conducted this administrative 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 antidumping duty order is freshwater 
crawfish tail meat, in all its forms (whether washed or with fat on, 
whether purged or un-purged), 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,

[[Page 21530]]

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.

Rescission of Administrative Review in Part

    In the Preliminary Results, we preliminarily found that Shanghai 
Ocean Flavor, Xuzhou Jinjiang, and Nanjing Gemsen had no shipments of 
subject merchandise during the period of review and we stated our 
intent to rescind the administrative review with respect to these 
companies. See Preliminary Results, 76 FR at 62350. We have received no 
comments concerning our intent to rescind this administrative review in 
part. We continue to find that Shanghai Ocean Flavor, Xuzhou Jinjiang, 
and Nanjing Gemsen had no shipments of freshwater crawfish tail meat 
from the PRC during the period of review. In accordance with 19 CFR 
351.213(d)(3), we are rescinding the review of Shanghai Ocean Flavor, 
Xuzhou Jinjiang, and Nanjing Gemsen.

Adverse Facts Available

    In the Preliminary Results, we stated that the record evidence 
suggests a lack of commercial soundness in the transactions reported by 
Xiping Opeck in this review and that another entity (hereinafter, 
Company A) \2\ plays a role in the pricing associated with the entries 
of subject merchandise in this review. See Preliminary Results, 76 FR 
at 62350. For a detailed discussion on this issue, see 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 September 
30, 2011. In the Preliminary Results, we also stated that further 
inquiry on this issue is necessary. See Preliminary Results, 76 FR at 
62350. Consequently, on October 3, 2011, we issued a non-market economy 
questionnaire to Company A. Company A did not answer the non-market 
economy questionnaire, arguing that it was not required to submit a 
response. See AFA Memo at 2. We determined that Company A significantly 
impeded the proceeding because it did not provide any of the 
information which we determined to be critical and necessary for the 
completion of an administrative review of the entries and sales made by 
Xiping Opeck. See AFA Memo at 3. We found it necessary, pursuant to 
sections 776(a)(1), (2)(A) and (C) of the Act, to use facts otherwise 
available to calculate the dumping margin for Xiping Opeck in this 
review. See AFA Memo at 4. Because Company A did not cooperate to the 
best of its ability in this review, in relying on facts otherwise 
available, we found that pursuant to section 776(b) of the Act an 
adverse inference is warranted in determining a dumping margin for 
Xiping Opeck in this review. See AFA Memo at 4. In determining the AFA 
rate for Xiping Opeck in this review, we relied on primary information 
on the record. Using this information, we calculated an AFA rate of 
70.12 percent for Xiping Opeck in this review. See AFA Memo at 4.
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    \2\ We are withholding the identity of Company A because Xiping 
Opeck's U.S. customer claimed business-proprietary treatment of this 
information.
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    After our consideration of the comments on this issue, for the 
final results of this review, we continue to find that the use of AFA 
is warranted for Xiping Opeck in this review pursuant to sections 
776(a) (1), (2)(A) and (C) and 776(b) of the Act.

Non-Market-Economy Country Status

    In the Preliminary Results, we treated the PRC as a non-market-
economy (NME) country. See Preliminary Results, 76 FR at 62350. No 
interested party commented on our designation of the PRC as an NME 
country. Therefore, for the final results of review, we have continued 
to treat the PRC as an NME country in accordance with section 773(c) of 
the Act.

Separate Rates

    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 assigned a single 
antidumping duty deposit rate. It is the Department's policy to assign 
all exporters of merchandise subject to review 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.
    In the Preliminary Results, we found that Xiping Opeck and China 
Kingdom demonstrated their eligibility for separate-rate status. See 
Preliminary Results, 76 FR at 62351-62352. We received no comments from 
interested parties regarding the separate-rate status of these 
companies. Therefore, in these final results of review, we continue to 
find that the evidence placed on the record of this review by Xiping 
Opeck and China Kingdom demonstrates an absence of government control, 
both in law and in fact, with respect to these companies' exports of 
the subject merchandise. Thus, we have determined that Xiping Opeck and 
China Kingdom are eligible to receive a separate rate.

Separate Rate for a Non-Selected Company

    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 margins for the selected companies, excluding margins that 
are zero, de minimis, or based entirely on facts available.\3\ 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.''
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    \3\ 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.
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    In previous cases, the Department has determined that a 
``reasonable method'' to use when, as here, the rate of the respondent 
selected for individual

[[Page 21531]]

examination is based entirely on facts available 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).\4\ If any 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.\5\ 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 have assigned 
a rate of 18.87 percent to China Kingdom, its calculated rate in the 
previous administrative review.\6\ 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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    \4\ 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, 774 F. 
Supp. 2d 1286 (CIT April 14, 2011).
    \5\  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.
    \6\ 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).
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Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this administrative review are addressed in the I&D Memorandum which is 
hereby adopted by this notice. A list of the issues raised is attached 
to this notice as an appendix. The I&D Memorandum is a public document 
and is on file electronically via Import Administration's Antidumping 
and Countervailing Duty Centralized Electronic Service System (IA 
ACCESS). Access to IA ACCESS is available in the Central Records Unit 
(CRU), room 7046 of the main Department of Commerce building. In 
addition, a complete version of the I&D Memorandum can be accessed 
directly on the internet at http://www.trade.gov/ia/. The signed I&D 
Memorandum and the electronic versions of the I&D Memorandum are 
identical in content.

Changes Since the Preliminary Results

    We determined the margin for Xiping Opeck based on AFA.

Final Results of the Review

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

------------------------------------------------------------------------
                                                                Margin
                          Company                             (percent)
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Xiping Opeck Food Co., Ltd.................................        70.12
China Kingdom (Beijing) Import & Export Co., Ltd...........        18.87
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Assessment

    For Xiping Opeck and China Kingdom, we will instruct CBP to apply 
the rates listed above to all entries of subject merchandise exported 
respectively by these companies. 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 these final results of this 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 the rate 
established in this final results of review, as listed above, for each 
exporter; (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 shall remain in effect until further notice.

Notifications

    This notice also serves as a final 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 notice also serves as a reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the destruction of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305(a)(3). Timely notification of the 
destruction of APO materials or conversion to judicial protective order 
is hereby requested. Failure to comply with the regulations and terms 
of an APO is a sanctionable violation.
    We are issuing and publishing these results in accordance with 
sections 751(a)(1) and 777(i) of the Act.

    Dated: April 4, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.

Appendix

    1. Determination that Company A is an Interested Party
    2. Application of Adverse Facts Available

[[Page 21532]]

    3. Selection of Adverse Facts Available Rate
[FR Doc. 2012-8601 Filed 4-9-12; 8:45 am]
BILLING CODE 3510-DS-P