Certain Frozen Warmwater Shrimp From Thailand: Final Results and Partial Rescission of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On March 9, 2009, 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 Thailand. This review covers 135 producers/exporters of the subject merchandise to the United States. The POR is February 1, 2007, through January 31, 2008.

Based on our analysis of the comments received, we have made certain changes in the margin calculations for Andaman Seafood Co., Ltd. (Andaman), Wales & Co. Universe Limited, Chanthaburi Frozen Food Co., Ltd. (CFF), Chanthaburi Seafoods Co., Ltd. (CSF), Intersia Foods Co., Ltd. (formerly Y2K Frozen Foods Co., Ltd.), Phattana Seafood Co., Ltd. (PTN), Phattana Frozen Food Co., Ltd. (PFF), S.C.C. Frozen Seafood Co., Ltd., Thailand Fishery Cold Storage Public Co., Ltd. (TFC), Thai International Seafoods Co., Ltd. (TIS), and Sea Wealth Frozen Food Co., Ltd. (Sea Wealth) (collectively, the Rubicon Group), and Pakfood Public Company Limited and its affiliates, Asia Pacific (Thailand) Company, Limited, Chaophraya Cold Storage Company Limited, Okeanos Company Limited, Okeanos Food Company, Limited, and Takzin Samut Company, Limited (collectively, Pakfood), producer/exporters selected for individual review. Therefore, the final results for the Rubicon Group and Pakfood 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 16, 2009.

FOR FURTHER INFORMATION CONTACT:

Kate Johnson or David Goldberger, 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 or (202) 482-4136, respectively.

SUPPLEMENTARY INFORMATION:

Background

This review covers 135 producers/exporters. The respondents which the Department selected for individual review are the Rubicon Group and Pakfood. The respondents which were not selected for individual review are listed in the “Final Results of Review” section of this notice.

On March 9, 2009, the Department published in the Federal Register the preliminary results of the 2007-2008 administrative review of the antidumping duty order on shrimp from Thailand. See Certain Frozen Warmwater Shrimp from Thailand: Preliminary Results of Antidumping Duty Administrative Review, 74 FR 10000 (March 9, 2009) (Preliminary Results). We invited parties to comment on those preliminary results.

We conducted the cost verification of CFF, a member of the Rubicon Group, from February 9 through February 13, 2009, the sales verification of CFF from March 23 through March 25, 2009, and the verification of Rubicon Resources, the Rubicon Group's U.S. affiliate, from March 30 through April 1, 2009.

On April 8, 2009, the domestic processors of frozen warmwater shrimp (i.e., The American Shrimp Processors Association, hereafter “domestic processors”), an interested party in this proceeding, requested that a public hearing be held in this proceeding. On May 13, 2009, the domestic processors withdrew their hearing request.

In May 2009, we received case briefs from the domestic producers of the subject merchandise (i.e., the Ad Hoc Shrimp Trade Action Committee), the respondents selected for individual review, the Rubicon Group and Pakfood, the domestic processors, and Thai I-Mei Frozen Foods Co., Ltd. (Thai I-Mei), a producer/exporter not selected for individual review. Rebuttal briefs were received from the domestic producers, the Rubicon Group, Pakfood, and Thai I-Mei.

In May 2009, we extended the deadline for the final results, due no later than September 8, 2009. See Certain Frozen Warmwater Shrimp from Thailand: Notice of Extension of Time Limit for the Final Results of the Third Administrative Review, 74 FR 25705 (May 29, 2009).

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, 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 February 1, 2007, through January 31, 2008.

Partial Rescission of Review

In February 2007, the Department received a timely request, in accordance with 19 CFR 351.213(b)(1), from the domestic producers and the Louisiana Shrimp Association, a domestic interested party, to conduct a review of Euro-Asian. The Department initiated a review of this company on April 7, 2008. See Certain Frozen Warmwater Shrimp from Brazil, Ecuador, India, and Thailand: Notice of Initiation of Administrative Reviews, 73 FR 18754 (April 7, 2008). However, the Rubicon Group's July 14, 2008, Section A questionnaire response at pages A-27 A-28, indicates that Euro-Asian is not a producer and/or exporter of the subject merchandise. We confirmed that Euro-Asian had no shipments of subject merchandise during the POR using U.S. Customs and Border Protection (CBP) data. Therefore, because Euro-Asian had no shipments of subject merchandise to the United States during the POR, in accordance with 19 CFR 351.213(d)(3), and consistent with the Department's practice, we are rescinding our review with respect to this company. See, e.g., Certain Frozen Warmwater Shrimp from Thailand: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 72 FR 52065, 52067 (September 12, 2007); and Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination To Revoke in Part, 70 FR 67665, 67666 (November 8, 2005).

Cost of Production

As discussed in the Preliminary Results, we conducted a sales below cost investigation to determine whether Pakfood and the Rubicon Group made home market and third country 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. For both respondents, we performed the cost test for these final results following the same methodology as in the Preliminary Results.

We found 20 percent or more of each respondent's 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 find that Pakfood and the Rubicon Group made below-cost sales not in the ordinary course of trade. Consequently, we disregarded these sales for each respondent 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 Issues and Decision Memorandum (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, HCHB Room 1117, 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 for Pakfood and the Rubicon Group. These changes are discussed in the relevant sections of the Decision Memo.

In addition, we have changed our calculation of the cash deposit and assessment rates applicable to the companies not selected for individual examination to reflect the simple average of the margins calculated for the respondents selected for individual examination in this review, rather than the weighted average of these margins, excluding de minimis margins or margins based entirely on facts available (FA). This is consistent with our current practice with respect to the calculation of the cash deposit and assessment rates applicable to non-mandatory respondents in cases such as the instant one, where there are only two mandatory respondents with above de minimis margins, or margins based entirely upon FA. See Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom: Preliminary Results of Antidumping Duty Administrative Reviews and Intent to Rescind Reviews in Part, 73 FR 25654, 25655 (May 7, 2008); unchanged in Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews and Rescission of Reviews in Part, 73 FR 52823, 52824 (September 11, 2008).

Final Results of Review

We determine that weighted-average dumping margins exist for the respondents for the period February 1, 2007, through January 31, 2008, as follows:

Review-Specific Average Rate Applicable to the Following Companies:

Assessment

The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries.

For those sales where Pakfood and the Rubicon Group reported the entered value of their U.S. sales, we have calculated importer-specific ad valorem duty assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales for that importer. For those sales where the respondents did not report the entered value of their U.S. sales, we have calculated importer-specific or customer-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. With respect to the respondents' U.S. sales of shrimp with sauce, for which no entered value was reported, we have included the total quantity of the merchandise with sauce in the denominator of the calculation of the importer-specific or customer-specific rate because CBP will apply the per-unit duty rate to the total quantity of merchandise entered, including the sauce weight. 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 or customer-specific ad valorem ratios based on the estimated entered value.

For the companies which were not selected for individual review, we have calculated an assessment rate based on the simple average of the cash deposit rates calculated for the companies selected for individual review excluding any which are de minimis or determined entirely on FA.

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

The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: 1) the cash deposit rates for each specific company listed above will be the rates shown above, except if the rate is less than 0.50 percent, and therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; 2) for previously reviewed or investigated companies not participating in this review, 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, a prior review, or the original 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 be 5.34 percent, the all-others rate made effective by the Section 129 Determination. These requirements, when imposed, 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.

Appendix Issues in Decision Memo

General Comments:

Comment 1: Offsetting of Negative Margins

Comment 2: Using CBP Data for Respondent Selection

Comment 3: Restricting Count-Size Comparisons Under the Model-Matching Methodology

Comment 4: Assessment Rate Assigned to Companies Receiving the Review-Specific Average Rate

Company-Specific Comments:

Pakfood

Comment 5: Treatment of DDP Interest Income Earned by Pakfood

Comment 6: Application of Pakfood's Final Antidumping Duty Margin to its 100 Percent-Owned Subsidiaries

The Rubicon Group

Comment 7: Interest Income Offset to Financial Expenses

Comment 8: CEP Offset

Comment 9: Calculation of U.S. Warehousing and Inventory Carrying Costs

Comment 10: Inadvertent Errors in the Draft Cash Deposit and Liquidation Instructions