Notice of Amended Preliminary Antidumping Duty Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Amended preliminary antidumping duty determination of sales at less than fair value.

EFFECTIVE DATE:

September 1, 2004.

FOR FURTHER INFORMATION CONTACT:

Alex Villanueva or James C. Doyle, NME Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-3208, or (202) 482-0159, respectively.

Scope of the Investigation

The scope of this investigation includes certain warmwater shrimp and prawns, whether frozen or canned, 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 or canned form.

The frozen or canned warmwater shrimp and prawn products included in the scope of the investigation, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTSUS”), are products which are processed from warmwater shrimp and prawns through either freezing or canning 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 the investigations. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are included in the scope of the investigation.

Excluded from the scope are (1) breaded shrimp and prawns (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 (0306.23.00.20 and 0306.23.00.40); (4) shrimp and prawns in prepared meals (1605.20.05.10); and (5) dried shrimp and prawns.

The products covered by this scope are currently classifiable 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, 1605.20.10.30, and 1605.20.10.40. These HTSUS subheadings are provided for convenience and customs purposes only and are not dispositive, but rather the written descriptions of the scope of these investigations is dispositive.

Background

On July 2, 2004, the Department of Commerce (“the Department”) preliminarily determined that certain frozen and canned warmwater shrimp from the Socialist Republic of Vietnam are being, or are likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733(a) of the Tariff Act of 1930, as amended (“the Act”). See 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 (“Preliminary Determination”) 69 FR 42672 (July 16, 2004).

On July 12, 2004, Camau Frozen Seafood Processing Import Export Corporation (“Camimex”), Kim Anh Co., Ltd. (“Kim Anh”), Minh Phu Seafood Corporation (“Min Phu”) and Minh Hai Joint Stock Seafoods Processing Company (“Seaprodex Minh Hai”), hereinafter collectively referred to as “the Mandatory Respondents,” timely filed allegations that the Department made ministerial errors in the preliminary determination. In addition, by July 12, 2004, certain Section A Respondents timely filed allegations that the Department made ministerial errors in the preliminary determination.

On July 19, 2004, the Ad Hoc Shrimp Trade Action Committee, Versaggi Shrimp Corporation, and Indian Ridge Shrimp Company, hereinafter referred to collectively as “Petitioners,” filed rebuttal comments to the Mandatory Respondents’ ministerial error allegations. Petitioners' July 19, 2004 submission was rejected as “the Secretary will not consider replies to comments submitted in connection with a preliminary determination.” See 19 CFR 351.224(c)(3). See Letter from James C. Doyle, Program Manager, AD/CVD Enforcement III to Petitioners Regarding Ministerial Error Allegation Rebuttal Comments, dated August 16, 2004.

In reviewing the ministerial error allegations of the Mandatory Respondents, the Department noted that the allegations were deficient. On August 3, 2004, the Department sent a letter to the Mandatory Respondents requesting that they (1) present the appropriate correction and (2) demonstrate how the alleged ministerial error is significant by illustrating the effect on the individual weighted-average dumping margin as required by 19 CFR 351.224(c). On August 6, 2004, the Mandatory Respondents submitted their revised ministerial error allegations and noted that the correction of these alleged errors were not significant as required by 19 CFR 351.224(g).

Significant Ministerial Error

The Department's regulations provide that the Secretary will correct any significant ministerial error by amending the preliminary determination. See 19 CFR 351.224(e). A ministerial error is an error in addition, subtraction or other arithmetic functions. A clerical error results from inaccurate copying, duplication, or any other similar type of unintentional error which the Secretary considers ministerial. See 19 CFR 351.224(f). A significant ministerial error is defined as an error, the correction of which, singly or in combination with other errors, would result in (1) a change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original (erroneous) preliminary determination; or (2) a difference between a weighted-average dumping margin of zero or de minimis and a weighted-average dumping margin of greater than de minimis or vice versa. See 19 CFR 351.224(g). We are publishing this amendment to the Preliminary Determination pursuant to 19 CFR 351.224(e). As a result of this amended preliminary determination, we have revised the rate for one Section A Respondent, Kien Giang Seaproduct Import Export Company.

Ministerial Error Allegations From Mandatory Respondents

The Department addresses allegations of ministerial error with regard to the Mandatory Respondents in its Memorandum to the File, dated August 20, 2004, from Nicole Bankhead, Case Analysts through James C. Doyle, Program Manager, Regarding Antidumping Duty Investigation of Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of Vietnam: Allegations of Ministerial Error from Mandatory Respondents (“Mandatory Respondent Memo”). Specifically, these allegations concern the by-product offset; headless shell-on conversion ratios; cold-storage, brokerage & handling and containerization expenses; post-sale price adjustments; and CONNUM-by-CONNUM comparisons. For purposes of this amended preliminary determination we are not changing any findings in the preliminary determination for any of the Mandatory Respondents. For a detailed analysis of the allegations made by Mandatory Respondents, please see the Mandatory Respondent Memo.

Ministerial Error Allegations From the Section A Respondents

The Department addresses allegations of ministerial error with regard to Section A Respondents in its Memorandum to the File, dated August 20, 2004, from Nicole Bankhead and Paul Walker, Case Analysts through James C. Doyle, Program Manager, Regarding Antidumping Duty Investigation of Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of Vietnam: Allegations of Ministerial Error from Section A Respondents. Specifically, these allegations concern price negotiations, the acceptance of an investment licence in lieu of a business license and the dating of submissions.

Amended Preliminary Determination

For the purposes of this amended preliminary determination, we are changing our finding in the Preliminary Determination and granting a separate rate to one additional Section A Respondent, Kien Giang Seaproduct Import Export Co. (“Kisimex”), based on the Department's re-examination of evidence on the record. As a result of our correction of ministerial errors in the Preliminary Determination, we have determined that the following weighted-average dumping margin applies:

Because the ministerial errors alleged for the Mandatory Respondents do not constitute significant ministerial errors under 351.224(g), we are not changing the weighted-average dumping margin listed in the Preliminary Determination. In addition, the Vietnamese-wide rate remains unchanged.

The collection of bonds or cash deposits and suspension of liquidation will be revised accordingly and parties will be notified of this determination, in accordance with section 733(d) and (f) of the Act.

International Trade Commission Notification

In accordance with section 733(f) of the Act, we have notified the International Trade Commission (“ITC”) of our amended preliminary determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of the preliminary determination or 45 days after our final determination whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports, or sales (or the likelihood of sales) for importation, of the subject merchandise.

This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.224(e).