Certain Frozen Warmwater Shrimp from Brazil: Final Results and Partial Rescission of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On March 9, 2007, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from Brazil. This review covers 11 producers/exporters of the subject merchandise to the United States. The period of review (POR) is August 4, 2004, through January 31, 2006. We are rescinding the review with respect to three companies. One company was inadvertently omitted from the list of companies for which the administrative review was rescinded in July 2006, and the other two companies were duplicate names for a company for which the administrative review was also rescinded in July 2006.

Based on our analysis of the comments received, we have made certain changes to the margin calculations. 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 Review.”

EFFECTIVE DATE:

September 12, 2007.

FOR FURTHER INFORMATION CONTACT:

Kate Johnson or Rebecca Trainor, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone (202) 482-4929 and (202) 482-4007, respectively.

SUPPLEMENTARY INFORMATION:

Background

This review covers 11 producers/exporters.¹ The respondents which the Department selected for individual review are Aquatica Maricultura do Brasil Ltda (“Aquatica”) and Comercio de Pescado Aracatiense Ltda. (“Compescal”). The respondents which were not selected for individual review are listed in the “Final Results of Review” section of this notice. On March 9, 2007, the Department published in the Federal Register the preliminary results of administrative review of the antidumping duty order on shrimp from Brazil. See Certain Frozen Warmwater Shrimp from Brazil: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review, 72 FR 10680 (March 9, 2007) (Preliminary Results).

We invited parties to comment on our preliminary results of review. On April 23, 2007, we received case briefs from the mandatory respondents (i.e., Aquatica and Compescal) and Valença da Bahia Maricultura (Valença), a respondent which was not selected for individual review. On May 7, we received a rebuttal brief from the petitioner (i.e., the Ad Hoc Shrimp Trade Action Committee). On May 31, 2007, we held a hearing at the request of Aquatica and Compescal.

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 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,² deveined or not deveined, cooked or raw, or otherwise processed in frozen form.

The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), 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, whiteleg 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 order. 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 order.

Excluded from the scope are: 1) breaded shrimp and prawns (HTSUS subheading 1605.20.10.20); 2) shrimp and prawns generally classified in the Pandalidae family and commonly referred to as coldwater shrimp, in any state of processing; 3) fresh shrimp and prawns whether shell-on or peeled (HTSUS subheadings 0306.23.00.20 and 0306.23.00.40); 4) shrimp and prawns in prepared meals (HTSUS subheading 1605.20.05.10); 5) dried shrimp and prawns; 6) canned warmwater shrimp and prawns (HTSUS subheading 1605.20.10.40); 7) certain dusted shrimp; and 8) 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 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 order are currently classified under the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this order is dispositive.

Period of Review

The POR is August 4, 2004, through January 31, 2006.

Partial Rescission of Review

In the Preliminary Results, we preliminarily rescinded this review with respect to Artico, Marine Maricultura do Nordeste SA, and Marine Maricultura Nordeste SA.

Artico was inadvertently omitted from the list of companies for which the administrative review was rescinded in July 2006. Artico has the same address as Ortico, which was included in our earlier rescission notice. Accordingly, we consider Artico and Ortico to be the same company.

In addition, as a result of additional research, we confirmed that Marine Maricultura do Nordeste SA, Marine Maricultura do Nordeste, and Marine Maricultura Nordeste SA are, in fact, the same company, and that the correct company name is Marine Maricultura do Nordeste SA, which is no longer in business. We rescinded the administrative review with respect to Marine Maricultura do Nordeste in July 2006, as a result of the petitioner's timely withdrawal of the request for review of this company.

For these reasons, we are rescinding this review with respect to Artico, Marine Maricultura do Nordeste SA, and Marine Maricultura Nordeste SA.

Facts Available

In the Preliminary Results, we determined that, in accordance with section 776(a)(2)(A) of the Act, the use of facts available was appropriate as the basis for the dumping margins for SM Pescados Industria Comercio E Exportacao Ltda. (SM Pescados) and Valenca da Bahia Maricultura S.A. (Valenca). See Preliminary Results at 10682-83.

Section 776(a) of the Act provides that the Department will apply “facts otherwise available” if, inter alia, necessary information is not available on the record or an interested party: 1) withholds information that has been requested by the Department; 2) fails to provide such information within the deadlines established, or in the form or manner requested by the Department; 3) significantly impedes a proceeding; or 4) provides such information, but the information cannot be verified.

In April 2006, the Department requested that all companies subject to review respond to the Department's quantity and value (Q&V) questionnaire for purposes of mandatory respondent selection. The original deadline to file a response was April 28, 2006. Because numerous companies did not respond to this initial request for information, in May 2006 the Department issued letters to these companies affording them a second opportunity to submit a response to the Department's Q&V questionnaire. However, both SM Pescados and Valenca failed to respond to the Department's second request for Q&V data. By failing to respond to the Department's Q&V questionnaire, these companies withheld requested information and significantly impeded the proceeding. Thus, pursuant to sections 776(a)(2)(A) and (C) of the Act, because these companies did not respond to the Department's questionnaire, the Department preliminarily found that the use of total facts available was warranted. See Preliminary Results at 10682-83.

By failing to respond to the Department's requests, these companies withheld requested information and significantly impeded the proceeding. Therefore, as in the Preliminary Results, the Department finds that the use of total facts available for SM Pescados and Valenca is appropriate for purposes of the final results, pursuant to sections 776(a)(2)(A) and (C) of the Act.

Application of Adverse Facts Available

In selecting from among the facts otherwise available, section 776(b) of the Act authorizes the Department to use an adverse inference if the Department finds that an interested party failed to cooperate by not acting to the best of its ability to comply with the request for information. See, e.g., Notice of Final Results of Antidumping Duty Administrative Review: Stainless Steel Bar from India, 70 FR 54023, 54025-26 (Sept. 13, 2005); see also Notice of Final Determination of Sales at Less Than Fair Value and Final Negative Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from Brazil, 67 FR 55792, 55794-96 (Aug. 30, 2002). Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, Vol. 1, at 870 (1994). Furthermore, “affirmative evidence of bad faith on the part of a respondent is not required before the Department may make an adverse inference.” See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27340 (May 19, 1997). See also, Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003) (Nippon). We find that SM Pescados and Valenca did not act to the best of their abilities in this proceeding, within the meaning of section 776(b) of the Act, because they failed to respond to the Department's requests for information. Therefore, an adverse inference is warranted in selecting the facts otherwise available. See Nippon, 337 F. 3d at 1382-83.

In the Preliminary Results, we assigned to the uncooperative companies an adverse facts available (AFA) rate of 349 percent, which is the highest rate alleged in the petition, and which we were able to corroborate against the preliminary transaction-specific margins calculated for the mandatory respondents in this administrative review. However, given the changes made to the margin calculations for the mandatory respondents since the Preliminary Results, we are no longer able to corroborate the petition margins using this method, as discussed below. Therefore, for the final results, we have applied an AFA margin of 67.80 percent, which is the highest rate calculated for any respondent in a prior segment of the proceeding (i.e., the less-than-fair-value (LTFV) investigation). The Court of International Trade (CIT) and the Court of Appeals for the Federal Circuit have consistently upheld this approach. See NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 1335 (CIT 2004) (upholding a 73.55 percent total AFA rate, the highest available dumping margin from a different respondent in an LTFV investigation).

Section 776(b) of the Act provides that the Department may use as AFA information derived from: 1) the petition; 2) the final determination in the investigation; 3) any previous review; or 4) any other information placed on the record. The Department's practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse “as to effectuate the statutory purposes of the AFA rule to induce respondents to provide the Department with complete and accurate information in a timely manner.” See, e.g., Certain Steel Concrete Reinforcing Bars from Turkey; Final Results and Rescission of Antidumping Duty Administrative Review in Part, 71 FR 65082, 65084 (November 7, 2006).

In selecting an appropriate AFA rate, the Department considered: 1) the rates alleged in the petition (see Notice of Initiation of Antidumping Duty Investigations: Certain Frozen and Canned Warmwater Shrimp From Brazil, Ecuador, India, Thailand, the People's Republic of China and the Socialist Republic of Vietnam, 69 FR 3876, 3879 (January 27, 2004)); 2) the rates calculated in the final determination of the LTFV investigation, which ranged from 9.69 to 67.80 percent (see Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Brazil, 70 FR 5143 (February 1, 2005) (LTFV Amended Final Determination and Order)); and 3) the rates calculated in the current administrative review. As discussed further below, we no longer find that the rates alleged in the petition have probative value for purposes of this review. In addition, we find that the rates calculated for the respondents in this review are not sufficiently high as to effectuate the purpose of the facts available rule (i.e., we do not find that these rates are high enough to encourage participation in future segments of this proceeding in accordance with section 776(b) of the Act). Therefore, we have assigned a rate of 67.80 percent as AFA, which is the highest margin determined for any respondent in any segment of the proceeding (i.e., the LTFV investigation).³ We consider the 67.80-percent rate to be sufficiently high so as to encourage participation in future segments of this proceeding.

Corroboration

Section 776(c) of the Act requires that the Department corroborate, to the extent practicable, secondary information used as facts available from independent sources reasonably at its disposal. The Department's regulations provide that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value. See 19 CFR 351.308(d); see also Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316 at 870 (1994) (SAA). With respect to consideration of the rates alleged in the petition, information from prior segments of the proceeding constitutes secondary information and to the extent practicable, the Department will examine the reliability and relevance of the information to be used.

For purposes of the final results, we did not use either of the two highest of the three petition rates (i.e., 320 percent and 349 percent) because we were unable to corroborate them with independent information reasonably at our disposal, i.e., the transaction-specific margins in the current administrative review. We did not use the remaining petition rate (i.e., 32 percent) because it was lower than the selected AFA rate, and as such would not accomplish the objectives of AFA, stated above. Moreover, we have an alternative that we find to be sufficiently adverse to effectuate the purpose of the AFA provision of the statute.

The reliability of the selected AFA rate was determined by the calculation of the margin for Norte Pesca, as published in the LTFV Amended Final Determination and Order. With respect to corroboration of a rate calculated in a segment of a proceeding, we note that, unlike other types of information, such as input costs or selling expenses, there are no independent sources from which the Department can derive dumping margins. The only source for calculated dumping margins is administrative determinations. Thus, in an administrative review, if the Department chooses as total AFA a calculated dumping margin from the current or a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period. See, e.g., Anhydrous Sodium Metasilicate from France: Preliminary Results of Antidumping Duty Administrative Review, 68 FR 44283, 44284 (July 28, 2003) and Anhydrous Sodium Metasilicate from France: Final Results of Antidumping Duty Administrative Review, 68 FR 60080 (October 21, 2003) (unchanged in final). Therefore, given that we are using the highest margin calculated for any respondent in any segment of the proceeding, it is not necessary to question the reliability of this rate. The Department has received no information to date that warrants revisiting the issue of the reliability of the rate calculation itself. However, because neither SM Pescados nor Valença submitted information to the Department or participated in a previous segment of this proceeding, we do not have information specific to the two companies to consider in determining whether the 67.80-percent margin is relevant to each of them. Therefore, to determine whether the 67.80-percent margin is relevant in this administrative review, we compared this rate to the transaction-specific rates calculated for each mandatory respondent in this review. Based on this comparison, we find that the selected AFA rate is relevant because it fell within the range of individual transaction margins calculated for one of the mandatory respondents. See Memorandum to The File from Kate Johnson and Rebecca Trainor entitled “Corroboration of Adverse Facts Available Rate for the Final Results in the 2004-2006 Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from Brazil,” dated September 5, 2007. See also Notice of Preliminary Results of Antidumping Duty Administrative Review; Partial Rescission and Postponement of Final Results: Certain Softwood Lumber Products from Canada, 71 FR 33964, 33968 (June 12, 2006).

The Department will, however, consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department may disregard the margin and determine an appropriate margin. See, e.g., Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22, 1996) (where the Department disregarded the highest calculated margin as AFA because the margin was based on a company's uncharacteristic business expense resulting in an unusually high margin). For the instant review, we examined whether any information on the record would discredit the selected rate as reasonable facts available and have found none. Because we did not find evidence indicating that the margin selected as AFA in this review is not appropriate, we have determined that the highest margin calculated for any respondent in any segment of the proceeding (i.e., 67.80 percent) is appropriate to use as AFA, and are assigning this rate to SM Pescados and Valenca in the final results of this review.

Aquatica's Affiliated Parties

Aquatica provided information regarding the relationship between Aquatica and its two affiliated producers/exporters of subject merchandise at issue during the POR.⁴ After an analysis of this information, as well as information obtained as a result of additional research, we preliminarily determined that, in accordance with 19 CFR 351.401(f), it is not appropriate to collapse these affiliated entities for purposes of this review because: 1) there is no common ownership among the companies; 2) no managerial employees or board members of one firm are associated with any of the other firms; 3) there is no sharing of sales information, involvement in pricing and production decisions, sharing of facilities or employees, or significant transactions between and among the affiliated producers. Thus, there is no potential for manipulation of price or production if Aquatica and its affiliates do not receive the same antidumping duty rate. See Preliminary Results, 72 FR at 10682.

Since the Preliminary Results, no party to this proceeding has commented on this issue and we have found no additional information that would compel us to reverse our preliminary finding. Thus, for purposes of these final results, we continue to find that it is not appropriate to collapse these entities for purposes of this review.

Cost of Production

As discussed in the Preliminary Results, we conducted an investigation to determine whether Aquatica and Compescal made third country or home market sales, respectively, of the foreign like product during the POR at prices below their costs of production (COP) within the meaning of section 773(b)(1) of the Act. We performed the cost test for these final results following the same methodology as in the Preliminary Results, except as discussed in the Issues and Decision Memorandum accompanying this notice (the Decision Memo).

For both Compescal and Aquatica, we found that 20 percent or more of comparison market sales of a given product during the reporting period were at prices less than the weighted-average COP for this period. Thus, we determined that these below-cost sales were made in “substantial quantities” within an extended period of time and at prices which did not permit the recovery of all costs within a reasonable period of time in the normal course of trade. See sections 773(b)(2)(B) - (D) of the Act. Therefore, for purposes of these final results, we found that both respondents made below-cost sales not in the ordinary course of trade during the POR. Consequently, we disregarded these sales and used the remaining sales as the basis for determining normal value pursuant to section 773(b)(1) of the Act.

Analysis of Comments Received

All issues raised in the case briefs by parties to this administrative review, and to which we have responded, are listed in the Appendix to this notice and addressed in the Decision Memo, which is adopted by this notice. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room B-099, of the main Department building.

In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov/frn/. The paper copy and electronic version of the Decision Memo are identical in content.

Changes Since the Preliminary Results

Based on our analysis of the comments received, we have made certain changes in the margin calculations. These changes are discussed in the relevant sections of the Decision Memo.

Final Results of Review

We determine that the following weighted-average margin percentages exist for the period August 4, 2004, through January 31, 2006:

Assessment

The Department shall determine, and Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries.

Pursuant to 19 CFR 351.212(b)(1), for Aquatica and Compescal, because they did not report the entered value of their U.S. sales, we have calculated importer-specific per-unit duty assessment rates by aggregating the total amount of antidumping duties calculated for the examined sales and dividing this amount by the total quantity of those sales. 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 have calculated importer-specific ad valorem ratios based on the estimated entered value. For the responsive companies which were not selected for individual review, we have calculated an assessment rate based on the weighted-average of the cash deposit rates calculated for the companies selected for individual review excluding any which are de minimis or determined entirely on AFA.

We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above de minimis (i.e., at or above 0.50 percent). Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is de minimis (i.e., less than 0.50 percent). See 19 CFR 351.106(c)(1). The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.

The Department clarified its “automatic assessment” regulation on May 6, 2003. See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) (Assessment Policy Notice). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know that the merchandise they sold to the intermediary (e.g., a reseller, trading company, or exporter) was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the “All Others” rate established in the LTFV investigation if there is no rate for the intermediary involved in the transaction. See Assessment Policy Notice for a full discussion of this clarification.

Cash Deposit Requirements

Further, the following deposit requirements will be effective for all shipments of shrimp from Brazil entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: 1) the cash deposit rates for the reviewed companies will be the rates shown above, except if the rate is less than 0.50 percent, de minimis within the meaning of 19 CFR 351.106(c)(1), the cash deposit will be zero; 2) for previously investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; 3) if the exporter is not a firm covered in this review, or the LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and 4) the cash deposit rate for all other manufacturers or exporters will continue to be 7.05 percent, the “All Others” rate established in the LTFV investigation. These deposit requirements shall remain in effect until further notice.

Notification to Importers

This notice 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.

Notification to Interested Parties

This notice serves as the only reminder to parties subject to administrative protective order (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 return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

We are issuing and publishing these final results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).

Appendix Issues in Decision Memorandum

General Issues

1. Offset for Productivity Losses from Viral Infection

2. Zeroing Negative Margins

Company-Specific Issues

Compescal:

3. Calculation of Offset for Losses from Viral Infection

4. Calculation of Constructed Value Profit

5. Depreciation on Fixed Asset Revaluations

6. Treatment of Prime Quality Shrimp

Aquatica:

7. Adjustment Methodology for Losses from Viral Infection

8. Aquatica's Shrimp Cost Allocation Methodology

9. Changes in Inventories in Cost Calculation

10. Purchases from Affiliates

11. CV Profit and Selling Rates

12. Foreign Exchange Loss

13. Treatment of Broken Shrimp

Valença:

14. Adverse Facts Available Rate Assigned to Valenca da Bahia Maricultura S.A.

15. Corroboration of the Adverse Facts Available Rate Assigned to Valenca da Bahia Maricultura S.A.