E5-4768. Notice of Rescission of Antidumping Duty New Shipper Review: Freshwater Crawfish Tail Meat from the People's Republic of China

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On November 3, 2004, in response to requests from Dafeng Shunli Import & Export Co., Ltd., and Shanghai Blessing Trade Co. Ltd., the Department of Commerce (“the Department”) initiated new shipper reviews of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China. The period of review is September 1, 2003, through August 31, 2004. For the reasons discussed below, we are rescinding these new shipper reviews.

EFFECTIVE DATE:

August 31, 2005.

FOR FURTHER INFORMATION CONTACT:

Scot Fullerton or Bobby Wong, 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: [phone] and [phone], respectively.

SUPPLEMENTARY INFORMATION:

Scope of the Order

The product covered by this antidumping duty order is freshwater crawfish tail meat, in all its forms (whether washed or with fat on, whether purged or unpurged), grades, and sizes; whether frozen, fresh, or chilled; and regardless of how it is packed, preserved, or prepared. Excluded from the scope of the order are live crawfish and other whole crawfish, whether boiled, frozen, fresh, or chilled. Also excluded are saltwater crawfish of any type, and parts thereof. Freshwater crawfish tail meat is currently classifiable in the Harmonized Tariff Schedule of the United States (HTS) under subheadings 1605.40.10.10 and 1605.40.10.90, which are the new HTS subheadings for prepared foodstuffs, indicating peeled crawfish tail meat and other, as introduced by the U.S. Customs Service in 2000, and HTS subheadings 0306.19.00.10 and 0306.29.00, which are reserved for fish and crustaceans in general. The HTS subheadings are provided for convenience and customs purposes only. The written description of the scope of this order is dispositive.

Background

On September 15, 2004, and September 30, 2004, the Department received requests for new shipper reviews from Shanghai Blessing Trade Co., Ltd. (“Shanghai Blessing”) and Dafeng Shunli Import & Export Co., Ltd. (“Dafeng Shunli”) respectively. On November 3, 2004, the Department initiated both new shipper reviews for the period of review (“POR”) September 1, 2003, through August 31, 2004. See Freshwater Crawfish Tail Meat from the People's Republic of China: Initiation of Antidumping New Shipper Review, 69 FR 64028 (November 3, 2004). On November 9, 2004, we issued a questionnaire to Shanghai Blessing and Dafeng Shunli. In addition to Sections A, C, and D, the Department's questionnaire to both respondents included questions regarding each respondent's importer. On December 27, 2004, and January 5, 2005, we received Shanghai Blessing and Dafeng Shunli's respective responses to Sections A, C, and D of the Department's questionnaire, including a response regarding each respondent's importer.

We issued and received supplemental questionnaires from Shanghai Blessing and Dafeng Shunli in February, March, and April 2005. On March 23, 2005, the Department extended the time limit for the completion of the preliminary results of review by 66 days from the original April 25, 2005 deadline, in accordance with section 751(a)(2)(B)(iv) of the Tariff Act of 1930, as amended (“the Act”), and section 351.214(i)(2) of the Department's regulations. See Notice of Extension of the Preliminary Results of New Shipper Antidumping Duty Reviews: Crawfish Tail Meat from the People's Republic of China, 70 FR 14648 (March 23, 2005). On June 23, 2005, the Department further extended the time limit for the completion of the preliminary results of review until August 23, 2005. See Notice of Extension of the Preliminary Results of New Shipper Antidumping Duty Reviews: Crawfish Tail Meat from the People's Republic of China, 70 FR 37327 (June 29, 2005).

On June 8, 2005, and July 19, 2005, respectively, the Department completed its preliminary bona fides analysis for both Dafeng Shunli and Shanghai Blessing's single sales to the United States and stated the Department's preliminary intention to rescind the new shipper reviews of both companies. See Memorandum from James C. Doyle to Barbara E. Tillman: The Bona Fides Analysis for Dafeng Shunli Import & Export Co., Ltd.'s Sale in the New Shipper Review of Freshwater Crawfish Tail Meat from the People's Republic of China, (“DF Bona Fides Analysis Memo”), and Memorandum from James C. Doyle to Barbara E. Tillman: The Bona Fides Analysis for Shanghai Blessing Trade Co., Ltd.'s Sale in the New Shipper Review of Freshwater Crawfish Tail Meat from the People's Republic of China, (“SB Bona Fides Analysis Memo”). The Department allowed interested parties an opportunity to provide comments on the Department's bona fides analysis memos, as well as the new factual information placed on the record of review as attachments to the memo. Dafeng Shunli provided comments on the Department's DF Bona Fides Analysis Memo on June 24, 2005, and the Louisiana Crawfish Processors Alliance provided rebuttal comments on June 30, 2005. Shanghai Blessing provided comments on the Department's SB Bona Fides Analysis Memo on August 2, 2005, and the Louisiana Crawfish Processors Alliance provided rebuttal comments on August 5, 2005.

Rescission of Review

Concurrent with this notice, we are issuing two memoranda detailing our analysis of the bona fides of both Shanghai Blessing and Dafeng Shunli's U.S. sales and our decision to rescind the reviews for both companies based on the totality of the circumstances. See Memorandum from James C. Doyle, Director, Office 9, to Barbara E. Tillman, Acting DAS for Operations: Bona Fides Analysis and Rescission of New Shipper Review of Freshwater Crawfish Tail Meat from the People's Republic of China for Dafeng Shunli Import & Export Co., Ltd., dated August 23, 2005 (“DF Rescission Memo”) and Memorandum from James C. Doyle, Director, Office 9, to Barbara E. Tillman, Acting DAS for Operations: Bona Fides Analysis and Rescission of New Shipper Review of Freshwater Crawfish Tail Meat from the People's Republic of China for Shanghai Blessing Co., Ltd., dated August 23, 2005 (“SB Rescission Memo”).

In evaluating whether or not a single sale in a new shipper review is commercially reasonable, and therefore bona fide, the Department has considered, inter alia, such factors as (1) the timing of the sale; (2) the price and quantity; (3) the expenses arising from the transaction; (4) whether the goods were resold at a profit; and (5) whether the transaction was at an arms-length basis. See Tianjin Tiancheng Pharmaceutical Co., Ltd. v. U.S., Slip Op. 05-29, at 9 (CIT Mar. 9, 2005) (“TTPC”), citing Am. Silicon Techs. v. U.S., 110 F. Supp. 2d 992, 995 (CIT 2000). However, the analysis is not limited to these factors alone. The Department examines a number of factors, all of which may speak to the commercial realities surrounding the sale of subject merchandise. While some bona fides issues may share commonalities across various Department cases, each one is company-specific and may vary with the facts surrounding each sale. See Certain Preserved Mushrooms From the People's Republic of China: Final Results and Partial Rescission of the New Shipper Review and Final Results and Partial Rescission of the Third Antidumping Duty Administrative Review, 68 FR 41304 (July 11, 2003) and accompanying Issues and Decision Memorandum, at 20. The weight given to each factor investigated will depend on the circumstances surrounding the sale. See TTPC, at 39.

As discussed in detail in the Department's DF Rescission Memo, the Department has determined that the new shipper sale made by Dafeng Shunli was not bona fide because of, (1) the inconsistencies in the import documentation; (2) the circumstances surrounding payment for the single POR sale; (3) the aberrantly low quantity of the single sale, in comparison with other shipments from China; (4) the inconsistencies and irregularities regarding the information provided regarding Dafeng Shunli's importer as compared to information obtained by the Department; (5) information gaps regarding the actual capital investors in Dafeng Shunli; and (6) an unreported relationship between Dafeng Shunli and Yancheng Yaou Seafood Co., Ltd. As discussed in detail in the Department's SB Rescission Memo, the Department has determined that the new shipper sale made by Shanghai Blessing was not bona fide because, (1) the circumstances obscuring the identity of the producer of the subject merchandise; (2) the circumstances surrounding Shanghai Blessing's knowledge of the ultimate customer; (3) the atypical quantity of the single sale in comparison with other shipments during the POR and Shanghai Blessing's post-POR shipments; (4) the decreases in the entered value and sales price for post-POR shipments; (5) the inconsistencies and irregularities regarding the affiliations of the majority owner of Shanghai Blessing's producer; and (6) the incomplete and inaccurate responses in the information provided to the Department. Since the Department is rescinding the new shipper reviews, we are not making a determination as to whether Dafeng Shunli and Shanghai Blessing qualify for separate rates. Therefore, Shanghai Blessing and Dafeng Shunli will remain part of the PRC-wide entity.

Notification

The Department will notify the U.S. Customs and Border Protection that bonding is no longer permitted to fulfill security requirements for shipments by Shanghai Blessing and Dafeng Shunli of freshwater crawfish tail meat from the PRC entered, or withdrawn from warehouse, for consumption in the United States on or after the publication of this rescission notice in the Federal Register, and that a cash deposit of 223.01 percent ad valorem should be collected for any entries exported by Shanghai Blessing and Dafeng Shunli.

This notice also serves as the only reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO material or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanctions.

We are issuing and publishing this determination and notice in accordance with sections 751(a)(2)(B) and 777(i) of the Act.

Dated: August 23, 2005.

Barbara E. Tillman,

Acting Deputy Assistant Secretary for Import Administration.