Notice of Amended Preliminary Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp from Brazil

AGENCY:

Import Administration, International Trade Administration, U.S. Department of Commerce.

ACTION:

Notice of Amended Preliminary Determination of Sales at Less Than Fair Value.

EFFECTIVE DATE:

August 30, 2004).

FOR FURTHER INFORMATION CONTACT:

Kate Johnson or Rebecca Trainor, 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) 482-4007, respectively.

SUPPLEMENTARY INFORMATION:

Significant Ministerial Error

Pursuant to 19 CFR 351.224(g)(1) and (g)(2), the Department of Commerce (the Department) is amending the preliminary determination of sales at less than fair value in the antidumping duty investigation of certain frozen and canned warmwater shrimp from Brazil to reflect the correction of significant ministerial errors it made in the margin calculations regarding Empresa de Armazenagem Frigorifica Ltda. (EMPAF) and All Others. A ministerial error is defined as an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and 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 antidumping rates for EMPAF and All Others. See discussion below.

Ministerial Error Allegations

On July 28, 2004, the Department published its affirmative preliminarily determination in this proceeding. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Certain Frozen and Canned Warmwater Shrimp from Brazil, 69 FR 47081 (August 4, 2004) (Preliminary Determination).

On July 29, 2004, we disclosed our calculations for the preliminary determination to counsel for EMPAF, Central de Industrializacao e Distribuicao de Alimentos Ltda (CIDA), and Norte Pesca S.A. (Norte Pesca). On August 2, 2004, we disclosed our calculations for the preliminary determination to counsel for petitioners (i.e., Ad Hoc Shrimp Trade Action Committee, Versaggi Shrimp Corporation, and Indian Ridge Shrimp Company).

On August 3, 2004, CIDA and on August 4 and 11, 2004, Norte Pesca alleged that the Department made ministerial errors in calculating their respective margin for the preliminary determination. On August 3, 2004, the Brazilian Shrimp Farmers' Association (ABCC) alleged a ministerial error with respect to the Department's preliminary calculation of the All Others rate. On August 9, 2004, the petitioners filed ministerial error allegations regarding the preliminary margin calculation for EMPAF. Also, on August 9, 2004, the petitioners filed a reply to the respondents' and ABCC's ministerial error allegation submissions filed on August 3 and 4, 2004, but these comments were not considered by the Department in accordance with 19 CFR 351.224(c)(3).

The alleged ministerial errors are as follows. Also see Memorandum to Louis Apple and Neal M. Halper from The Team, dated August 20, 2004, for further discussion of the ministerial error allegations and the Department's analysis.

Norte Pesca

1. The Department inappropriately applied an adverse facts available adjustment to the reported material costs.

2. The Department erroneously included the profit and indirect selling expenses of EMPAF in the calculation of constructed value for Norte Pesca.

3. The Department disallowed certain credits received for taxes previously paid, and as a result, costs related to non-subject merchandise were erroneously and inadvertently treated as Norte Pesca's shrimp costs.

4. The Department failed to use Norte Pesca's most recently submitted database.

5. The Department inadvertently included broken shrimp in the dumping margin calculation of Norte Pesca, while excluding broken shrimp from the dumping margin calculation of CIDA.

CIDA

1. The Department mistakenly merged CIDA's cost and sales databases using the wrong control number variables.

ABCC

1. The Department incorrectly used Norte Pesca's dumping margin in the All Others rate calculation.

Petitioners

1. The Department made a programming error in EMPAF's preliminary margin program by incorrectly including an additional packing variable.

2. The Department made a programming error in the assignment of count size codes to EMPAF's sales of head-on shrimp.

The Department has reviewed its preliminary calculations and agrees that certain of the errors which the parties alleged are ministerial errors within the meaning of 19 CFR 351.224(f). After analyzing the submissions cited above, we have determined that ministerial errors were made in the preliminary determination margin calculation for EMPAF. Specifically, (1) we inadvertently included an additional packing variable in the margin program thereby preventing the correct assignment of values to a certain other variables; and (2) we inadvertently failed to convert the reported count sizes for EMPAF's head-on shrimp sales from a per-kilogram to a per-pound basis before assigning the appropriate per-pound count size codes specified in the Department's questionnaire. See Memorandum to Louis Apple and Neal M. Halper from The Team, dated August 20, 2004, for further discussion of the petitioners' ministerial error allegations and the Department's analysis. All of the other alleged errors described above with respect to the preliminary margin calculations for Norte Pesca, CIDA and All Others are not ministerial errors, as defined by 19 CFR 351.422(f), and therefore, no correction is warranted with regard to these items.

Pursuant to 19 CFR 351.224(g), the ministerial errors acknowledged above for EMPAF are significant. Therefore, we have recalculated the margin for EMPAF. The Department hereby amends its preliminary determination with respect to EMPAF to correct these errors. We have also amended the All Others rate calculation to reflect these corrections.

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 Tariff Act of 1930, as amended (the Act).

Amended Preliminary Determination

As a result of our correction of ministerial errors in the Preliminary Determination, the revised weighted-average dumping margins are as follows:

International Trade Commission Notification

In accordance with section 733(f) of the Act, we have notified the International Trade Commission (“ITC”) of the 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).