[Federal Register Volume 75, Number 48 (Friday, March 12, 2010)]
[Notices]
[Pages 11855-11862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5473]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-893]
Fourth Administrative Review of Certain Frozen Warmwater Shrimp
From the People's Republic of China: Preliminary Results, Preliminary
Partial Rescission of Antidumping Duty Administrative Review and Intent
Not To Revoke, In Part
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting an
administrative review of the antidumping duty order on certain frozen
warmwater shrimp (``shrimp'') from the People's Republic of China
(``PRC''), covering the period of review (``POR'') of February 1, 2008,
through January 31, 2009. As discussed below, the Department
preliminarily determines that certain respondents in this review made
sales in the United States at prices below normal value (``NV''). If
these preliminary results are adopted in our final results of review,
we will instruct U.S. Customs and Border Protection (``CBP'') to assess
antidumping duties on entries of subject merchandise during the POR for
which importer-specific assessment rates are above de minimis.
DATES: Effective Date: March 12, 2010.
FOR FURTHER INFORMATION CONTACT: Robert Palmer or Irene Gorelik, 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-
9068 and (202) 482-6905, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department received timely requests from both Petitioners,\1\
domestic interested parties (``DP''),\2\ and certain PRC companies, in
accordance with 19 CFR 351.213(b), during the anniversary month of
February, for administrative reviews of the antidumping duty order on
certain warmwater shrimp from the PRC. On March 26, 2009, the
Department initiated an administrative review of 483 producers/
exporters of subject merchandise from the PRC.\3\ See Notice of
Initiation of Administrative Reviews and Requests for Revocation in
Part of the Antidumping Duty Orders on Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam and the People's Republic of
China, 74 FR 13178 (March 26, 2009) (``Initiation''). However, after
accounting for duplicate names and additional trade names associated
with certain exporters, the number of companies upon which we initiated
is actually 477 companies/groups.\4\
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\1\ The petitioners are the members of the Ad Hoc Shrimp Trade
Action Committee (hereinafter referred to as ``Petitioners'').
\2\ The domestic interested parties are the American Shrimp
Processors Association and the Louisiana Shrimp Association.
\3\ See Initiation for a listing of these companies.
\4\ The duplicated companies were: Sanya Dongji Aquatic Products
Co., Ltd.; Sanya Shengda Seafood Co., Ltd.; Yangjiang Jiangcheng
Huanghai Marine Food Enterprises Co., Ltd.; Yangxi Add Host Aquatic
Product Processing Factory; Yantai Aquatic Products Supplying and
Marketing Co., Aquatic Products Haifa Food Branch; and Yantai
Aquatic Products Supplying and Marketing Co., Aquatic Products
Fazhan Branch.
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Between April 15, 2009, and April 27, 2009, the following companies
submitted ``no shipment certifications'' \5\: Allied Pacific Group,
Gallant Ocean (Lianjiang), Ltd.; Gallant Ocean (Nanhai), Ltd.; Shantou
Yelin Frozen Seafood Co., Ltd. (doing business as (``d.b.a'') Shantou
Yelin Quick-Freeze Marine Products Co., Ltd.); Fuqing Yihua Aquatic
Food Co., Ltd.; Fuqing Minhua Trade Co., Ltd.; and Yangjiang City Yelin
Hoitat Quick Frozen Seafood Co., Ltd.
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\5\ Companies have the opportunity to submit statements
certifying that they did not ship the subject merchandise to the
United States during the POR.
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On February 24, 2010, the Department received comments from DP
regarding certain surrogate values and the issue of duty adsorption.
However, because of the close proximity to the preliminary results, we
are unable to take DP's comments into consideration for the preliminary
results. DP's comments will be considered for purposes of the final
results of this review.
Respondent Selection
On May 29, 2009, in accordance with section 777A(c)(2) of the
Tariff Act of 1930, as amended (``Act''), the Department selected
Hilltop International (``Hilltop'') and Zhanjiang Regal Integrated
Marine Resources Co., Ltd. (``Regal'') for individual examination in
this review, since they were the two largest exporters by volume during
the POR, based on CBP data of U.S. imports. See Memorandum to James
Doyle, Director, Office IX, from Irene Gorelik, Senior International
Trade Analyst, Office IX, ``Antidumping Duty Administrative Review of
Certain Frozen Warmwater Shrimp from the People's Republic of China:
Selection of Respondents for Individual Review,'' dated May 29, 2009.
Questionnaires
On June 1, 2009, the Department issued its initial non-market
economy (``NME'') antidumping duty questionnaire to the mandatory
respondents Hilltop and Regal. Hilltop and Regal responded to the
Department's initial and subsequent supplemental questionnaires between
July 2009 and February 2010.
Surrogate Country and Surrogate Values
On July 10, 2009, the Department sent interested parties a letter
requesting comments on the surrogate country and information pertaining
to valuing factors of production (``FOPs''). On September 4, 2009,
Hilltop submitted surrogate value comments regarding various
[[Page 11856]]
Indian sources. No other interested party submitted comments on the
surrogate country or information pertaining to valuing FOPs.
Case Schedule
On October 27, 2009, in accordance with section 751(a)(3)(A) of the
Act, we extended the time period for issuing the preliminary results by
120 days, until February 28, 2010. See Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam and the People's Republic of
China: Extension of Preliminary Results of Antidumping Duty
Administrative Reviews, 74 FR 55192 (October 27, 2009). Additionally,
as explained in the memorandum from the Deputy Assistant Secretary for
Import Administration, the Department has exercised its discretion to
toll deadlines for the duration of the closure of the Federal
Government from February 5, through February 12, 2010. Thus, all
deadlines in this segment of the proceeding have been extended by seven
days. See Memorandum to the Record from Ronald Lorentzen, DAS for
Import Administration, regarding ``Tolling of Administrative Deadlines
As a Result of the Government Closure During the Recent Snowstorm,''
dated February 12, 2010. The revised deadline for the preliminary
results of this review is now March 7, 2010.\6\
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\6\ Where a statutory deadline falls on a weekend, federal
holiday, or any other day when the Department is closed, the
Department will continue its longstanding practice of reaching the
determination on the next business day. In this instance, the
preliminary results will be released no later than March 8, 2010.
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Scope of the 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,\7\ deveined or not deveined, cooked or raw, or
otherwise processed in frozen form.
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\7\ ``Tails'' in this context means the tail fan, which includes
the telson and the uropods.
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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 1605.20.1020); (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 0306.23.0020 and 0306.23.0040); (4) shrimp
and prawns in prepared meals (HTS subheading 1605.20.0510); (5) dried
shrimp and prawns; (6) Lee Kum Kee's shrimp sauce; (7) canned warmwater
shrimp and prawns (HTS subheading 1605.20.1040); (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: 0306.13.0003, 0306.13.0006,
0306.13.0009, 0306.13.0012, 0306.13.0015, 0306.13.0018, 0306.13.0021,
0306.13.0024, 0306.13.0027, 0306.13.0040, 1605.20.1010 and
1605.20.1030. 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.
Partial Rescission of Review
Preliminary Partial Rescission
As discussed in the ``Background'' section above, several companies
filed no shipment certifications indicating that they did not export
subject merchandise to the United States during the POR. In order to
corroborate these claims, we sent an inquiry to CBP to determine
whether CBP entry data is consistent with the statements of the Allied
Pacific Group; Gallant Ocean (Lianjiang), Ltd.; Gallant Ocean (Nanhai),
Ltd.; Shantou Yelin Frozen Seafood Co., Ltd.; and Shantou Yelin Quick-
Freeze Marine Products Co., Ltd. See Message from the Department to
CBP, dated January 8, 2010.
During the course of this review, Hilltop indicated that it was
affiliated with certain Chinese companies, including Yangjiang City
Yelin Hoitat Quick Frozen Seafood Co., Ltd., Fuqing Yihua Aquatic Food
Co., Ltd., and Fuqing Minhua Trading Co., Ltd.\8\ While, based on
Hilltop's submissions, we agree that they are affiliated with Hilltop
pursuant to section 771(33) of the Act, and as there is no basis at
this time to collapse those entities with Hilltop, we have reviewed the
no shipment certifications submitted by these firms. After a review of
the information on the record, we have not found any information that
contradicts the claims made by these firms. Accordingly, we are
preliminarily rescinding the review with respect to Yangjiang City
Yelin Hoitat Quick Frozen Seafood Co., Ltd., Fuqing Yihua Aquatic Food
Co., Ltd., and Fuqing Minhua Trading Co., Ltd.
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\8\ See Hilltop's Section A Questionnaire Response dated July 6,
2009, at Exhibit 2.
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With respect to Gallant Ocean (Lianjiang), Ltd., Gallant Ocean
(Nanhai), Ltd., Shantou Yelin Frozen Seafood Co., Ltd., and Shantou
Yelin Quick-Freeze Marine Products Co., Ltd., we reviewed PRC shrimp
data obtained from CBP and found no discrepancies with the statements
made by these firms. Additionally, in response to our no shipment
inquiry to CBP, CBP did not indicate these companies made
[[Page 11857]]
shipments to the United States during the POR.
On February 19, 2010, the Department received CBP documentation
which is at variance with the no shipment statement made on behalf of
the Allied Pacific Group.\9\ On February 19, 2010, the Department
requested comments regarding the CBP entry documentation. See
Memorandum to the File, from Bob Palmer, Analyst, Office IX, re:
Customs and Border Protection (``CBP'') Entry Documents, dated February
19, 2010. On February 26, 2010, DP submitted comments regarding the CBP
entry documentation. See Letter from DP, re: ASPA and LSA Comments on
No Shipment Inquiry, dated February 26, 2010. The information in the
CBP entry documents indicates that this was a sale by a third county
re-seller and not a sale for export to the United States by Allied
Pacific Group.\10\ Therefore we are preliminarily rescinding this
administrative review with respect to the Allied Pacific Group.
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\9\ The Allied Pacific Group consists of Allied Pacific Food
(Dalian) Co., Ltd.; Allied Pacific Aquatic Products (Zhanjiang) Co.,
Ltd.; Zhanjiang Allied Pacific Aquaculture Co., Ltd.; Allied Pacific
(H.K.) Co., Ltd.; and King Royal Investments Ltd.
\10\ Because the analysis is business proprietary, please see
Memorandum to the File, from Bob Palmer, Analyst, Office IX, re:
Analysis of Customs and Border Protection (``CBP'') Entry
Documentation for Allied Pacific Group, dated March 1, 2010.
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Furthermore, because the record indicates that Gallant Ocean
(Lianjiang), Ltd., Gallant Ocean (Nanhai), Ltd., Shantou Yelin Frozen
Seafood Co., Ltd., Shantou Yelin Quick-Freeze Marine Products Co.,
Ltd., Yangjiang City Yelin Hoitat Quick Frozen Seafood Co., Ltd.,
Fuqing Yihua Aquatic Food Co., Ltd., and Fuqing Minhua Trading Co.,
Ltd., did not export subject merchandise to the United States during
the POR, we are preliminarily rescinding this administrative review
with respect to these companies. See, e.g., Certain Frozen Fish Fillets
From the Socialist Republic of Vietnam: Notice of Preliminary Results
and Partial Rescission of the Third Antidumping Duty Administrative
Review, 72 FR 53527, 53530 (September 19, 2007), unchanged in Certain
Frozen Fish Fillets From the Socialist Republic of Vietnam: Final
Results of Antidumping Duty Administrative Review and Partial
Rescission, 73 FR 15479, 15480 (March 24, 2008) (``Third Fish Fillets
Review'').
Request for Revocation, In Part
On February 27, 2009, Regal, requested revocation of the Order. In
its request for revocation, Regal argued that it has maintained three
consecutive years of sales at not less than normal value. Regal argued
that, as a result of its alleged three consecutive years of no dumping,
sold the subject merchandise in commercial quantities, and its
submission of a certification of immediate reinstatement, it is
eligible for revocation under section 351.222(b)(2) of the Department's
regulations.
We preliminarily determine not to revoke the Order with respect to
Regal. Department regulation 351.222(b)(B)(ii)(2)(i) states that in
determining whether to revoke an antidumping duty order in part, the
Secretary will consider whether exporters or producers covered by the
order have sold the merchandise at not less than normal value for a
period of at least three consecutive years. See 19 CFR
351.222(b)(B)(ii)(2)(i)(A). In the Third Administrative Review of
Frozen Warmwater Shrimp from the People's Republic of China: Final
Results and Partial Rescission of Antidumping Duty Administrative
Review, 74 FR 46565 (September 10, 2009) (``China Shrimp Third AR''),
the Department determined that Regal sold the subject merchandise at
less than normal value and assigned Regal a weight-averaged dumping
margin. See China Shrimp Third AR. Therefore, as Regal had sales at
less than normal value in the third administrative review, we have
determined not to revoke the order with respect to Regal because it has
not met the regulatory criteria for revocation set forth in 19 CFR
351.222(b).\11\
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\11\ Regal submitted its request for revocation before the
publication of China Shrimp Third AR.
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Duty Absorption
On April 21, 2009 and April 24, 2009, Petitioners and DP,
respectively, requested that the Department determine whether
antidumping duties had been absorbed for U.S. sales of shrimp made
during the POR by the respondents selected for review. Section
751(a)(4) of the Act, provides for the Department, if requested, to
determine during an administrative review initiated two or four years
after publication of the order, whether antidumping duties have been
absorbed by a foreign producer or exporter, if the subject merchandise
is sold in the United States through an affiliated importer.
Because the antidumping duty order underlying this review was
issued in 2005, and this review was initiated in 2009, we are
conducting a duty absorption inquiry for this segment of the
proceeding. Pursuant to section 777A(c)(2)(B) of the Act, we selected
two exporters (i.e, Hilltop and Regal) as mandatory respondents in this
administrative review. In this case, only Hilltop has an affiliated
importer in the United States.
Petitioners and DP requested that the Department investigate
whether all companies listed in the Initiation had absorbed duties.
Because of the large number of companies subject to this review, the
Department only selected two companies as mandatory respondents in this
administrative review and thus only issued its complete questionnaire
to these two companies. In determining whether antidumping duties have
been absorbed, the Department requires certain specific data (i.e, U.S.
sales data) to ascertain whether those sales have been made at less
than NV. Since U.S. sales data is only obtained from the complete
questionnaire (i.e, only mandatory respondents submit U.S. sales data),
and no other companies in the Initiation were required to provide U.S.
sales data, we do not have the information necessary to assess whether
any other companies listed in the Initiation absorbed duties.
Accordingly, for those companies listed in the Initiation not selected
as mandatory respondents, we cannot make duty absorption determinations
with respect to those companies.
In determining whether the respondent has absorbed antidumping
duties, we presume the duties will be absorbed for constructed export
price (``CEP'') sales that have been made at less than NV. This
presumption can be rebutted with evidence (e.g., an agreement between
the affiliated importer and unaffiliated purchaser) that the
unaffiliated purchaser will pay the full duty ultimately assessed on
the subject merchandise. See, e.g., Certain Stainless Steel Butt-Weld
Pipe Fittings From Taiwan: Preliminary Results of Antidumping Duty
Administrative Review and Notice of Intent to Rescind in Part, 70 FR
39735, 39737 (July 11, 2005) (unchanged in final results). On January
28, 2010, the Department requested Hilltop to provide evidence to
demonstrate that its unaffiliated U.S. purchasers will pay any
antidumping duties ultimately assessed on entries of subject
merchandise.
On February 12, 2010, Hilltop filed a response rebutting the duty-
absorption presumption with company-specific quantitative evidence that
its unaffiliated U.S. purchasers will pay the full duty ultimately
assessed on the subject merchandise. The quantitative evidence included
invoices and financial statements on the record showing that Hilltop
did not absorb duties during the POR. Moreover, we note that Hilltop's
antidumping duty
[[Page 11858]]
cash deposit and assessment rates have been de minimis in past
administrative reviews. See Certain Frozen Warmwater Shrimp from the
People's Republic of China: Notice of Final Results and Rescission, in
Part, of 2004/2005 Antidumping Duty Administrative and New Shipper
Reviews, 72 FR 52049 (September 12, 2007); Hilltop as the successor-in-
interest to Yelin Enterprise Co. Hong Kong in Certain Frozen Warmwater
Shrimp from the People's Republic of China: Notice of Final Results of
Changed Circumstances Review, 72 FR 33447 (June 18, 2007); and China
Shrimp Third AR. We conclude that this information sufficiently
demonstrates that the unaffiliated purchasers in the United States will
ultimately pay the assessed duties. Therefore, we preliminarily find
that Hilltop has not absorbed antidumping duties on U.S. sales made
through its affiliated importer. See Hilltop's Response to Duty
Absorption Inquiry dated February 12, 2010; see also Hilltop's Section
A questionnaire response dated October 20, 2009, at Exhibits 12 and 15.
NME Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as an NME country. In accordance with section
771(18)(C)(i) of the Act, any determination that a foreign country is
an NME country shall remain in effect until revoked by the
administering authority. See 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 such treatment. Accordingly, we calculated NV
in accordance with section 773(c) of the Act, which applies to NME
countries.
Separate Rate Determination
A designation as an NME remains in effect until it is revoked by
the Department. See section 771(18)(C) of the Act. Accordingly, there
is a rebuttable presumption that all companies within the PRC are
subject to government control and, thus, should be assessed a single
antidumping duty rate. See 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); 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 investigations. See Initiation. It is the
Department's policy to assign all exporters of the merchandise subject
to review in NME countries a single rate unless an exporter can
affirmatively demonstrate an absence of government control, both in law
(de jure) and in fact (de facto), with respect to exports. To establish
whether a company is sufficiently independent to be entitled to a
separate, company-specific rate, the Department analyzes each exporting
entity in an NME country under the test established in Notice of 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
Fair Value: Silicon Carbide from the People's Republic of China, 59 FR
22585 (May 2, 1994) (``Silicon Carbide'').
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; and (3) any other
formal measures by the government decentralizing control of companies.
See Sparklers, 56 FR at 20589.
In this administrative review, only Hilltop, Regal and Shantou
Yuexing have placed sufficient evidence on the record that demonstrate
an absence of de jure control. See Hilltop's submission of July 6,
2009; see also Regal's submission of July 7, 2009; see also Shantou
Yuexing's submission of April 23, 2009. The Department has analyzed
such PRC laws as the ``Foreign Trade Law of the People's Republic of
China'' and the ``Company Law of the People's Republic of China'' and
has found that they establish an absence of de jure control. See, e.g.,
Preliminary Results of New Shipper Review: Certain Preserved Mushrooms
from the People's Republic of China, 66 FR 30695, 30696 (June 7, 2001).
We have no information in this proceeding that would cause us to
reconsider this determination. Thus, we find that the evidence on the
record supports a preliminary finding of an absence of de jure
government control based on: (1) An absence of restrictive stipulations
associated with the exporter's business license; (2) the legal
authority on the record decentralizing control over the respondent, as
demonstrated by the PRC laws placed on the record of this review; and
(3) other formal measures by the government decentralizing control of
companies.
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
Notice of Final Determination of Sales at Less Than Fair Value: Certain
Preserved Mushrooms from the People's Republic of China, 63 FR 72255
(December 31, 1998). Therefore, the Department has determined that an
analysis of de facto control is critical in determining whether
respondents are, in fact, subject to a degree of government control
which would preclude the Department from assigning separate rates. The
Department typically considers four factors in evaluating whether each
respondent is subject to de facto government control of its export
functions: (1) Whether the exporter sets its own export prices
independent of the government and without the approval of a government
authority; (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 its 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; Sparklers, 56 FR at 20589.
The Department conducted separate rate analyses for Hilltop, Regal
and Shantou Yuexing, each of which have asserted the following: (1)
There is no government participation in setting export prices; (2)
sales managers and authorized employees have the authority to create
binding sales contracts; (3) they do not have to notify any government
authorities of management selections; (4) there are no restrictions on
the use of export revenue; and (5) they are responsible for financing
their own losses. The questionnaire responses of Hilltop, Regal and
Shantou Yuexing do not indicate that pricing is coordinated among
exporters or the existence of government control of export activities.
[[Page 11859]]
See Hilltop's submission of July 6, 2009; see Regal's submission of
July 7, 2009; see Shantou Yuexing's submission of April 23, 2009.
Consequently, we preliminarily determine that Hilltop, Regal and
Shantou Yuexing have met the criteria for the application of a separate
rate.
In the Initiation, we requested that all companies listed therein
wishing to qualify for separate rate status in this administrative
review submit, as appropriate, either a separate rate status
application or certification. See Initiation. As discussed above, the
Department initiated this administrative review with respect to 477
companies, and we are preliminarily rescinding the review with respect
to eleven\12\ companies due to the lack of shipments during the POR.
Thus, including Hilltop, Regal, and Shantou Yuexing, 466 companies
remain subject to this review. Only Hilltop, Regal and Shantou Yuexing
provided, as appropriate, either a separate rate application or
certification. No other company listed in the Initiation, has
demonstrated its eligibility for separate rate status in this
administrative review. Therefore, the Department preliminarily
determines that there were exports of merchandise under review from PRC
exporters that did not demonstrate their eligibility for separate rate
status. As a result, the Department is treating these PRC exporters as
part of the PRC-wide entity, subject to the PRC-wide rate.
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\12\ These include Gallant Ocean (Lianjiang), Ltd.; Gallant
Ocean (Nanhai), Ltd.; Shantou Yelin Frozen Seafood Co., Ltd., d.b.a.
Shantou Yelin Quick-Freeze Marine Products Co., Ltd.; Yangjiang City
Yelin Hoitat Quick Frozen Seafood Co., Ltd.; Fuqing Yihua Aquatic
Food Co., Ltd.; Fuqing Minhua Trading Co., Ltd.; and the companies
of the Allied Pacific Group (comprised of Allied Pacific Food
(Dalian) Co., Ltd.; Allied Pacific Aquatic Products (Zhanjiang) Co.,
Ltd.; Zhanjiang Allied Pacific Aquaculture Co., Ltd.; Allied Pacific
(H.K.) Co., Ltd.; and King Royal Investments Ltd.).
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Rate for Non-Selected Companies
Based on timely requests from Petitioners, DP and certain PRC
exporters, the Department originally initiated this review with respect
to 477 companies/groups. In accordance with section 777A(c)(2)(B) of
the Act, as stated above, the Department employed a limited examination
methodology, as it did not have the resources to examine all companies
for which a review request was made. As stated previously, the
Department selected two exporters, Hilltop and Regal as mandatory
respondents in this review. In addition to the mandatory respondents,
only Shantou Yuexing submitted timely information as requested by the
Department and remains subject to review as a cooperative separate rate
respondent.
We note that the statute and the Department's regulations do not
directly address the establishment of a rate to be applied to
individual companies not selected for examination where the Department
limited its examination in an administrative review pursuant to section
777A(c)(2) of the Act. The Department's practice in this regard, in
cases involving limited selection based on exporters accounting for the
largest volumes of trade, has been to look to section 735(c)(5) of the
Act, which provides instructions for calculating the all-others rate in
an investigation, for guidance. Consequently, the Department generally
weight-averages the rates calculated for the mandatory respondents,
excluding zero and de minimis rates and rates based entirely on adverse
facts available (``AFA''), and applies that resulting weighted-average
margin to non-selected cooperative separate-rate respondents. See,
e.g., Wooden Bedroom Furniture From the People's Republic of China:
Preliminary Results of Antidumping Duty Administrative Review,
Preliminary Results of New Shipper Review and Partial Rescission of
Administrative Review, 73 FR 8273 (February 13, 2008) unchanged in
Wooden Bedroom Furniture from the People's Republic of China: Final
Results of Antidumping Duty Administrative Review and New Shipper
Review, 73 FR 49162 (August 20, 2008). In this instance, consistent
with our practice, we have preliminarily established a margin for the
separate rate respondent based on the rate we calculated for the
mandatory respondent whose rate was not de minimis. For the China-wide
entity, we have assigned the entity's current rate and only rate ever
determined for the entity in this proceeding.
Surrogate Country
When the Department investigates imports from an NME country,
section 773(c)(1) of the Act directs it to base NV, in most
circumstances, on the NME producer's FOPs, valued in a surrogate market
economy country or countries considered to be appropriate by the
Department. In accordance with section 773(c)(4) of the Act, in valuing
the FOPs, the Department shall utilize, to the extent possible, the
prices or costs of FOPs in one or more market economy countries that
are at a level of economic development comparable to that of the NME
country and significant producers of comparable merchandise. The
sources of the surrogate factor values are discussed under the ``Normal
Value'' section below and in the Memorandum to the File through
Catherine Bertrand, Program Manager, Office IX, from Bob Palmer, Case
Analyst, Office IX, ``Fourth Administrative Review of Certain Frozen
Warmwater Shrimp from the People's Republic of China: Surrogate Factor
Valuations for the Preliminary Results,'' dated concurrently with this
notice (``Surrogate Values Memo'').
As discussed in the ``NME Country Status'' section, the Department
considers the PRC to be an NME country. The Department determined that
India, Indonesia, the Philippines, Colombia, Thailand and Peru are
countries comparable to the PRC in terms of economic development. See
the Department's letter to all interested parties, dated July 20, 2009.
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. The Department finds India to be a reliable source for surrogate
values because India is at a comparable level of economic development
pursuant to 773(c)(4) of the Act, is a significant producer of
comparable merchandise, and has publicly available and reliable data.
Furthermore, the Department notes that India has been the primary
surrogate country in past segments. As noted above, Hilltop submitted
surrogate value data for certain, but not all, FOPs for India on
September 4, 2009. Given the above facts, the Department has selected
India as the primary surrogate country for this review and placed
surrogate value data for certain FOPs not provided by Hilltop. See
Surrogate Values Memo.
U.S. Price
Export Price
In accordance with section 772(a) of the Act, we calculated the
export price (``EP'') for sales to the United States for Regal, because
the first sale to an unaffiliated party was made before the date of
importation and the use of constructed EP was not otherwise warranted.
We calculated EP based on the price to unaffiliated purchasers in the
United States. In accordance with section 772(c) of the Act, as
appropriate, we deducted from the starting price to unaffiliated
purchasers foreign inland freight, foreign brokerage and handling,
customs duties, domestic brokerage and handling and other movement
expenses incurred. For the services provided by an NME vendor or paid
for using an NME currency, we based the deduction of these movement
charges on surrogate
[[Page 11860]]
values. See Surrogate Values Memo for details regarding the surrogate
values for movement expenses. For expenses provided by a market economy
vendor and paid in U.S. dollars, we used the actual cost per kilogram
of the freight. See Regal Analysis Memo.
Constructed Export Price
For Hilltop's sales, we based U.S. price on constructed export
price (``CEP'') in accordance with section 772(b) of the Act, because
sales were made on behalf of the China-based company by its U.S.
affiliate to unaffiliated purchasers in the United States. For these
sales, we based CEP on prices to the first unaffiliated purchaser in
the United States. Where appropriate, we made deductions from the
starting price (gross unit price) for foreign movement expenses,
international movement expenses, U.S. movement expenses, and
appropriate selling adjustments, in accordance with section
772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act, we also deducted
those selling expenses associated with economic activities occurring in
the United States. We deducted, where appropriate, commissions,
inventory carrying costs, credit expenses, and indirect selling
expenses. Where foreign movement expenses, international movement
expenses, or U.S. movement expenses were provided by Chinese service
providers or paid for in Chinese Yuan, we valued these services using
surrogate values. See Surrogate Values Memo for details regarding the
surrogate values for movement expenses. For those expenses that were
provided by a market-economy provider and paid for in market-economy
currency, we used the reported expense. Due to the proprietary nature
of certain adjustments to U.S. price, for a detailed description of all
adjustments made to U.S. price for both mandatory respondents, see
Surrogate Values Memo.
Normal Value
Methodology
Section 773(c)(1)(B) of the Act provides that the Department shall
determine the NV using an FOP methodology if the merchandise is
exported from an NME and the information does not permit the
calculation of NV using home-market prices, third-country prices, or
constructed value under section 773(a) of the Act. The Department bases
NV on the FOPs because the presence of government controls on various
aspects of NMEs renders price comparisons and the calculation of
production costs invalid under the Department's normal methodologies.
Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on FOP data reported by the respondents for the POR. To calculate
NV, we multiplied the reported per-unit factor-consumption rates by
publicly available surrogate values (except as discussed below).
In selecting the surrogate values, we considered the quality,
specificity, and contemporaneity of the data. As appropriate, we
adjusted input prices by including freight costs to make them delivered
prices. We added to each Indian import surrogate value, a surrogate
freight cost calculated from the shorter of the reported distance from
the domestic supplier to the factory or the distance from the nearest
seaport to the factory, where appropriate. See Sigma Corp. v. United
States, 117 F. 3d 1401, 1407-1408 (Fed. Cir. 1997).
For these preliminary results, in accordance with the Department's
practice, we used data from the Indian Import Statistics in order to
calculate surrogate values for most of the respondent's material
inputs. In selecting the best available information for valuing FOPs in
accordance with section 773(c)(1) of the Act, the Department's practice
is to select, to the extent practicable, surrogate 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). The record shows that the
Indian import statistics represent import data that are contemporaneous
with the POR, product-specific, and tax-exclusive. Where we could not
obtain publicly available information contemporaneous to the POR with
which to value FOPs, we adjusted the surrogate values, where
appropriate, using the Indian Wholesale Price Index (``WPI'') as
published by the International Monetary Fund Financial Statistics. See
Surrogate Value Memo.
To value shrimp larvae for the respondents, which have an
integrated production process, the Department valued shrimp larvae
using an average of the price derived from the Nekkanti Sea Foods Ltd.
financial statement for 04/2002-03/2003, and the price quoted in
Fishing Chimes, which is an Indian seafood industry publication.
However, because the shrimp larvae prices are dated before the POR, we
inflated the price to be contemporaneous with the POR using WPI. See
Surrogate Value Memo.
We valued electricity using the updated electricity price data for
small, medium, and large industries, as published by the Central
Electricity Authority, an administrative body of the Government of
India, in its publication entitled Electricity Tariff & Duty and
Average Rates of Electricity Supply in India, dated March 2008. These
electricity rates represent actual country-wide, publicly-available
information on tax-exclusive electricity rates charged to small,
medium, and large industries in India. We did not inflate this value
because utility rates represent current rates, as indicated by the
effective dates listed for each of the rates provided. See Surrogate
Values Memo.
Consistent with 19 CFR 351.408(c)(3), we valued direct, indirect,
and packing labor, using the most recently calculated regression-based
wage rate, which relies on 2007 data. This wage rate can currently be
found on the Department's Web site on Import Administration's home
page, Reference Material, Expected Wages of Selected NME Countries,
revised in December 2009, http://ia.ita.doc.gov/wages/07wages/final/final-2009-2007-wages.html. The source of these wage-rate data on the
Import Administration's web site is the 2006 and 2007 data in Chapter
5B of the International Labour Statistics. Because this regression-
based wage rate does not separate the labor rates into different skill
levels or types of labor, we have applied the same wage rate to all
skill levels and types of labor reported by Regal and Hilltop.
To value water, the Department used data from the Maharashtra
Industrial Development Corporation (http://www.midcindia.org) since it
includes a wide range of industrial water tariffs. This source provides
386 industrial water rates within the Maharashtra province from April
2009 through June 2009, of which 193 were for the ``inside industrial
areas'' usage category and the other 193 were for the ``outside
industrial areas'' usage category. Because the value was not
contemporaneous with the POR, we deflated the rate. See Surrogate
Values Memo.
[[Page 11861]]
We valued truck freight expenses using a per-unit average rate
calculated from data on the Info Banc Web site: http://www.infobanc.com/logistics/logtruck.htm. The logistics section of this
Web site contains inland freight truck rates between many large Indian
cities.
We continued our recent practice to value brokerage and handling
using a simple average of the brokerage and handling costs that were
reported in public submissions that were filed in three antidumping
duty cases. See Certain Preserved Mushrooms from India: Final Results
of Antidumping Duty Administrative Review, 71 FR 10646 (March 2, 2006);
Certain Lined Paper Products from India: Final Results of Antidumping
Duty Administrative Review, 74 FR 17149 (April 14, 2009); Certain Hot-
Rolled Carbon Steel Flat Products from India: Final Results of
Antidumping Duty Review, 73 FR 31961 (June 5, 2008); and Certain
Preserved Mushrooms from India: Final Results of Antidumping Duty
Administrative Review, 72 FR 5268 (February 5, 2007). Specifically, we
averaged the public brokerage and handling expenses reported by Navneet
Publications (India) Ltd. in the 2007-2008 administrative review of
certain lined paper products from India, Essar Steel Limited in the
2006-2007 antidumping duty administrative review of hot-rolled carbon
steel flat products from India, and Himalaya International Ltd. in the
2005-2006 administrative review of certain preserved mushrooms from
India. See Surrogate Values Memo. Since the resulting value is not
contemporaneous with the POR, we inflated the rates using the WPI. The
Department derived the average per-unit amount from each source and
adjusted each average rate for inflation. Finally, the Department
averaged the average per-unit amounts to derive an overall average rate
for the POR.
To value factory overhead, sales, general and administrative
expenses, and profit, we relied upon publicly available information in
the 2007-2008 annual report of Falcon Marine Exports Ltd., an
integrated Indian producer of subject merchandise. See Surrogate Values
Memo.
Where appropriate, 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.
Preliminary Results of the Review
The Department has determined that the following preliminary
dumping margins exist for the period February 1, 2008, through January
31, 2009:
Certain Frozen Warmwater Shrimp From the PRC
------------------------------------------------------------------------
Margin
Manufacturer/Exporter (percent)
------------------------------------------------------------------------
Hilltop International....................................... 0.01
Zhanjiang Regal Integrated Marine Resources Co., Ltd........ 1.36
Shantou Yuexing Enterprises Co.............................. 1.36
PRC-Wide Entity \13\........................................ 112.81
------------------------------------------------------------------------
\13\ The PRC-wide entity includes the 466 companies currently under
review that have not established their entitlement to a separate rate.
As stated above in the ``Rates for Non-Selected Companies'' section
of this notice, in addition to the mandatory respondents Hilltop and
Regal, Shantou Yuexing qualifies for a separate rate in this review.
Moreover, as stated above in the ``Respondent Selection'' section of
this notice, we limited this review by selecting the largest exporters
and did not select Shantou Yuexing as a mandatory respondent.
Therefore, Shantou Yuexing is being assigned the dumping margin based
on the calculated margin of the mandatory respondent whose calculated
rate is not zero or de minimis, in accordance with Department practice.
Accordingly, we have assigned Shantou Yuexing the calculated dumping
margin assigned to Regal, because Regal is the only mandatory
respondent with a rate that is not zero or de minimis.
The Department will disclose calculations performed for these
preliminary results to the parties within five days of the date of
publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
of this administrative review, interested parties may submit publicly
available information to value FOPs within 20 days after the date of
publication of these preliminary results. Interested parties must
provide the Department with supporting documentation for the publicly
available information to value each FOP. Additionally, in accordance
with 19 CFR 351.301(c)(1), for the final results of this administrative
review, interested parties may submit factual information to rebut,
clarify, or correct factual information submitted by an interested
party less than ten days before, on, or after, the applicable deadline
for submission of such factual information. However, the Department
notes that 19 CFR 351.301(c)(1) permits new information only insofar as
it rebuts, clarifies, or corrects information recently placed on the
record. The Department generally cannot accept the submission of
additional, previously absent-from-the-record alternative surrogate
value information pursuant to 19 CFR 351.301(c)(1). See Glycine from
the People's Republic of China: Final Results of Antidumping Duty
Administrative Review and Final Rescission, in Part, 72 FR 58809
(October 17, 2007) and accompanying Issues and Decision Memorandum at
Comment 2.
Interested parties may submit case briefs and/or written comments
no later than 30 days after the date of publication of these
preliminary results of review. See 19 CFR 351.309(c)(ii). Rebuttal
briefs and rebuttals to written comments, limited to issues raised in
such briefs or comments may be filed no later than five days after the
deadline for filing case briefs. See 19 CFR 351.309(d). The Department
urges interested parties to provide an executive summary of each
argument contained within the case briefs and rebuttal briefs.
The Department will issue the final results of this administrative
review, which will include the results of its analysis of issues raised
in any such comments, within 120 days of publication of these
preliminary results, pursuant to section 751(a)(3)(A) of the Act.
Assessment Rates
Upon issuance of the final results, the Department will determine,
and CBP shall assess, antidumping duties on all appropriate entries
covered by these reviews. The Department intends to issue assessment
instructions to CBP 15 days after the publication date of the final
results of this review. In accordance with 19 CFR 351.212(b)(1), for
the mandatory respondents, we calculated an exporter/importer (or
customer)-specific assessment rate for the merchandise subject to this
review. Where the respondent has reported reliable entered values, we
calculated importer (or customer)-specific ad valorem rates by
aggregating the dumping margins calculated for all U.S. sales to each
importer (or customer) and dividing this amount by the total entered
value of the sales to each importer (or customer). See 19 CFR
351.212(b)(1). Where an importer (or customer)-specific ad valorem rate
is greater than de minimis, we will apply the assessment rate to the
entered value of the importer's/customer's entries during the POR. See
19 CFR 351.212(b)(1).
[[Page 11862]]
Where we do not have entered values for all U.S. sales, we
calculated a per-unit assessment rate by aggregating the antidumping
duties due for all U.S. sales to each importer (or customer) and
dividing this amount by the total quantity sold to that importer (or
customer). See 19 CFR 351.212(b)(1). To determine whether the duty
assessment rates are de minimis, in accordance with the requirement set
forth in 19 CFR 351.106(c)(2), we calculated importer (or customer)-
specific ad valorem ratios based on the estimated entered value. Where
an importer (or customer)-specific ad valorem rate is zero or de
minimis, we will instruct CBP to liquidate appropriate entries without
regard to antidumping duties. See 19 CFR 351.106(c)(2).
For the companies receiving a separate rate that were not selected
for individual review, we will assign an assessment rate based on the
cash deposit rate calculated for the Regal pursuant to section
735(c)(5)(B) of the Act. Where the weighted average ad valorem rate is
zero or de minimis, we will instruct CBP to liquidate appropriate
entries without regard to antidumping duties. See 19 CFR 351.106(c)(2).
For those companies for which this review has been preliminarily
rescinded,\14\ the Department intends to assess antidumping duties at
rates equal to the cash deposit of estimated antidumping duties
required at the time of entry, or withdrawal from warehouse, for
consumption, in accordance with 19 CFR 351.212(c)(2), if the review is
rescinded for these companies in the final results.
---------------------------------------------------------------------------
\14\ These include Gallant Ocean (Lianjiang), Ltd.; Gallant
Ocean (Nanhai), Ltd.; Shantou Yelin Frozen Seafood Co., Ltd.
(d.b.a., Shantou Yelin Quick-Freeze Marine Products Co., Ltd.);
Yangjiang City Yelin Hoitat Quick Frozen Seafood Co.; Ltd., Fuqing
Yihua Aquatic Food Co., Ltd.; Fuqing Minhua Trading Co., Ltd.; and
the companies of the Allied Pacific Group (comprised of Allied
Pacific Food (Dalian) Co., Ltd.; Allied Pacific Aquatic Products
(Zhanjiang) Co., Ltd.; Zhanjiang Allied Pacific Aquaculture Co.,
Ltd.; Allied Pacific (H.K.) Co., Ltd.; and King Royal Investments
Ltd.).
---------------------------------------------------------------------------
Cash Deposit Requirements
The following cash-deposit requirements will be effective upon
publication of the final results for shipments of the subject
merchandise entered, or withdrawn from warehouse, for consumption on or
after the publication date of the final results, as provided by section
751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash
deposit rate will be that established in the final results of review
(except, if the rate is zero or de minimis, no cash deposit will be
required); (2) for all other PRC exporters of subject merchandise which
have not been found to be entitled to a separate rate, and thus, are a
part of the PRC-wide entity, the cash-deposit rate will be the PRC-wide
rate of 112.81 percent; and (3) for all non-PRC exporters of subject
merchandise, the cash-deposit rate will be the rate applicable to the
PRC supplier of that exporter. These deposit requirements shall remain
in effect until further notice.
Notification of Interested Parties
This notice also serves as a preliminary reminder to importers of
their responsibility under 19 CFR 351.402(f) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this POR. Failure to comply with this
requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This administrative review, and this notice are in accordance with
sections 751(a)(1) and 777(i) of the Act, and 19 CFR 351.213 and
351.221(b)(4).
Dated: March 8, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-5473 Filed 3-11-10; 8:45 am]
BILLING CODE 3510-DS-P