Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From the People's Republic of China 1, 5149-5152 [E5-371]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 70, Number 20 (Tuesday, February 1, 2005)]
[Notices]
[Pages 5149-5152]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-371]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-893]


Notice of Amended Final Determination of Sales at Less Than Fair 
Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From 
the People's Republic of China \1\

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

DATES: Effective Date: February 1, 2005.

FOR FURTHER INFORMATION CONTACT: Alex Villanueva, 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: (202) 482-3208.
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    \1\ On January 21, 2005, the International Trade Commission 
(``ITC'') notified the Department of its final determination that 
two domestic like products exist for the merchandise covered by the 
Department's investigation: (i) Certain non-canned warmwater shrimp 
and prawns, as defined above, and (ii) canned warmwater shrimp and 
prawns. The ITC determined that there is no injury regarding imports 
of canned warmwater shrimp and prawns from the PRC, therefore, 
canned warmwater shrimp and prawns will not be covered by the 
antidumping order.
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Amendment to the Final Determination

    In accordance with sections 735(d) and 777(i)(1) of the Tariff Act 
of 1930, as amended, (``the Act''), on December 8, 2004, the Department 
of Commerce (``the Department'') published its final determination of 
sales at less than fair value (``LTFV'') in the investigation of 
certain frozen and canned warmwater shrimp from the People's Republic 
of China (``PRC''). See Notice of Final Determination of Sales at Less 
Than Fair Value: Certain Frozen and Canned Warmwater Shrimp from the 
People's Republic of China, 69 FR 70997 (December 8, 2004) (``Final 
Determination'') and corresponding ``Issues and Decision Memorandum'' 
dated November 29, 2004; see also Memorandum from Julia Hancock, Case 
Analyst, through Alex Villanueva, Program Manager, to James Doyle, 
Office Director, Antidumping Duty Investigation of Certain Frozen and 
Canned Warmwater Shrimp from the People's Republic of China: Section A 
Respondents' Issue Memorandum, dated November 29, 2004 (``Section A 
Respondents Issue Memorandum'').
    Between December 7, 2004, and December 13, 2004, the following 
parties filed timely allegations that the Department made various 
ministerial errors in the Final Determination. On December 7, 2004, 16 
of the 18 Section A Respondents that had been denied a separate rate by 
the Department in Final Determination, filed timely comments alleging 
ministerial errors in the Final Determination: Shantou Sez Xuhao 
Fastness Freeze Aquatic Factory Co., Ltd., with respect to its denial 
of a separate rate on the basis of an untranslated sample sales 
package; ZJ CNF Sea Products Engineering Ltd., Zhoushan Xifeng Aquatic 
Co., Ltd., Zhejiang Daishan Baofa Aquatic Product Co., Ltd., Zhejiang 
Taizhou Lingyang Aquatic Products Co., Zhoushan Zhenyang Developing 
Co., Ltd., Zhejiang Cereals, Oils & Foodstuff Import & Export Co., 
Ltd., Zhoushan Diciyuan Aquatic Products Co., Ltd., Zhejiang Zhenlong 
Foodstuffs Co., Ltd., Jinfu Trading Co., Ltd., Taizhou Zhonghuan 
Industrial Co., Ltd., Zhoushan Haichang Food Co., Zhoushan Putuo Huafa 
Sea Products Co., Ltd., Zhoushan Industrial Co., Ltd., and Shanghai 
Linghai Fisheries Economic and Trading Co., with respect to their 
denial for separate rates on the basis of insufficient evidence of 
price negotiation; and Zhejiang Evernew Seafood Co., Ltd., with respect 
to its denial of a separate rate for insufficient evidence of price 
negotiation and discrepancies with its corporate affiliations.
    Also on December 7, 2004, Allied Pacific (H.K.) Co., Ltd., Allied 
Pacific Aquatic Products (Zhangjiang) Co., Ltd., Allied Pacific Food 
(Dalian) Co., Ltd., Allied Pacific Aquatic Products (Zhongshan) Co., 
Ltd., and King Royal Investments, Ltd. (collectively, ``Allied 
Pacific''), and Yelin Enterprise Co. Hong Kong (``Yelin'') filed timely 
allegations that the Department made ministerial errors in the Final 
Determination in the margin calculation of each respondent. On December 
8, 2004, Shantou Red Garden Foodstuff Co., Ltd. (``Red Garden'') filed 
a timely allegation that the Department made ministerial errors in the 
Final Determination with respect to its margin calculation and the use 
of partial adverse facts available.
    From December 7, 2004, to December 14, 2004, the Ad Hoc Shrimp 
Trade Action Committee, Versaggi Shrimp Corporation, and Indian Shrimp 
Company (collectively ``Petitioners'') filed timely allegations that 
the Department made ministerial errors in the Final Determination and 
rebuttal comments to ministerial error allegations made by the 
interested parties.
    On December 13, 2004, Allied Pacific, Yelin, Red Garden, and 
Zhanjiang Guolian Aquatic Products Co., Ltd. (``Zhanjiang Guolian''), 
hereinafter

[[Page 5150]]

referred to collectively as ``the Mandatory Respondents,'' filed 
rebuttal comments to ministerial error allegations submitted by the 
Petitioners.
    On December 16, 2004, Eastern Fish Company, Inc. (``Eastern 
Fish''), an importer of frozen shrimp and interested party in these 
investigations, and Long John Silver's, Inc. (``LJS''), a purchaser of 
shrimp imported by Eastern Fish filed reply comments rebutting 
Petitioners' ministerial error allegations. On December 17, 2004, 
Petitioners filed a letter requesting the Department to reject Eastern 
Fish and LJS's untimely filing. On December 21, 2004, Eastern Fish and 
LJS filed additional reply comments to Petitioners' ministerial error 
allegations. Eastern Fish and LJS's December 16, 2004, and the December 
21, 2004, submissions were rejected as replies to comments ``must be 
filed within five days after the date on which the comments were filed 
with the Secretary.'' See Section 351.224(c)(3) of the Department's 
Regulations. See Letter from Alex Villanueva, Program Manager, China/
NME Unit, Office IX to Eastern Fish and LJS Regarding Ministerial Error 
Allegation Rebuttal Comments, dated January 26, 2005.
    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 Department considers 
ministerial. See 19 CFR 351.224(f).
    After analyzing all interested parties' comments and rebuttal 
comments, we have determined, in accordance with 19 CFR 351.224(e), 
that we made ministerial errors in the calculations we performed for 
the Final Determination. For a detailed discussion of these ministerial 
errors, as well as the Department's analysis, see Antidumping Duty 
Investigation of Certain Frozen Warmwater Shrimp from the People's 
Republic of China: Analysis of Allegations of Ministerial Error from 
the Mandatory Respondents and Section A Respondents, dated January 26, 
2005. Additionally, in the Final Determination, we determined that 
several companies qualified for a separate-rate. The margin we 
calculated in the Final Determination for these companies was 55.23 
percent. Because the rates of the selected Mandatory Respondents have 
changed since the Final Determination, we have recalculated the rate 
for the Section A Respondents which the Department determined to be 
entitled to a separate rate. The rate for Section A Respondents is now 
53.68 percent. See Memorandum to the File from John D. A. LaRose 
through Alex Villanueva Regarding the Calculation of Section A Rate, 
dated January 26, 2005.
    Therefore, in accordance with 19 CFR 351.224(e), we are amending 
the Final Determination of sales at LTFV in the antidumping duty 
investigation of certain frozen warmwater shrimp from the PRC. The 
revised weighted-average dumping margins are in the ``Antidumping Duty 
Order'' section, below.

Antidumping Duty Order

    In accordance with section 735(a) of the Act, the Department made 
its final determination that certain frozen and canned warmwater shrimp 
from the PRC is being, or is likely to be, sold in the United States at 
LTFV as provided in section 735 of the Act. See Final Determination. On 
January 21, 2005, the ITC notified the Department of its final 
determination pursuant to 735(b)(1)(A)(i) of the Act that an industry 
in the United States is materially injured by reason of LTFV imports of 
subject merchandise from the PRC. In its final determination, however, 
the ITC determined that two domestic like products exist for the 
merchandise covered by the Department's investigation: (i) Certain non-
canned warmwater shrimp and prawns, as defined below, and (ii) canned 
warmwater shrimp and prawns. The ITC determined pursuant to section 
735(b)(1) that a domestic industry in the United States is not 
materially injured or threatened with material injury by reason of 
imports of canned warmwater shrimp and prawns from the PRC. Therefore, 
the ITC's affirmative determination of material injury covered all 
certain non-canned warmwater shrimp and prawns other than those 
specifically excluded under the ``Scope of the Order'' section below. 
Accordingly, the scope of the antidumping duty order has been amended 
to reflect the ITC's distinction between certain non-canned warmwater 
shrimp and canned prawns warmwater shrimp and prawns. Specifically, 
canned warmwater shrimp and prawns are excluded from the scope of the 
order.
    In cases where the ITC specifically excludes a product in its final 
injury determination, the Department may exclude that product from its 
final margin calculation. See Antidumping Duty Orders; Certain 
Stainless Steel Plate in Coils From Belgium, Canada, Italy, the 
Republic of Korea, South Africa, and Taiwan, 64 FR 27756 (May 21, 
1999). However, because the Mandatory Respondents did not export or 
sell canned warmwater shrimp and prawns to the United States during the 
period of investigation (``POI''), no recalculation of the antidumping 
margins is warranted, and therefore we are not amending the final 
determination calculations to exclude any sales of canned warmwater 
shrimp and prawn products.
    In addition, the ITC notified the Department of its final 
determination that critical circumstances do not exist with respect to 
imports of subject merchandise from all producers and exporters from 
the PRC. Therefore, the Department will instruct U.S. Customs and 
Border Protection (``CBP'') to lift suspension and to release any bond 
or other security, and refund any cash deposit made, to secure the 
payment of antidumping duties with respect to entries of the 
merchandise entered, or withdrawn from warehouse, for consumption prior 
to the date of publication of the preliminary determination in the 
Federal Register. See Notice of Preliminary Determination of Sales at 
Less than Fair Value and Postphonement of Final Determination: Certain 
Frozen and Canned Warmwater Shrimp from the People's Republic of China, 
69 FR 42654 (July 16, 2004) (``Preliminary Determination'').
    In accordance with section 736(a)(1) of the Act, the Department 
will direct CBP to assess, upon further instruction by the Department, 
antidumping duties equal to the amount by which the normal value of the 
merchandise exceeds the export price of the merchandise for all 
relevant entries of certain frozen warmwater shrimp from the PRC. These 
antidumping duties will be assessed on all unliquidated entries of 
certain frozen warmwater shrimp and prawns from the PRC entered, or 
withdrawn from the warehouse, for consumption on or after July 16, 
2004, the date on which the Department published its Preliminary 
Determination, 69 FR 42672 (July 16, 2004).
    Section 733(d) of the Act states that instructions issued pursuant 
to an affirmative preliminary determination may not remain in effect 
for more than four months except where exporters representing a 
significant proportion of exports of the subject merchandise request 
the Department to extend that four-month period to no more than six 
months. At the request of exporters that account for a significant 
proportion of certain frozen and canned warmwater shrimp, we extended 
the four-month period to no more than six months. See Preliminary 
Determination. In this investigation, the six-month period beginning on 
the date of the publication

[[Page 5151]]

of the Preliminary Determination ended on January 12, 2005. Definitive 
duties are to begin on the date of publication of the ITC's final 
injury determination. See Section 737 of the Act. Therefore, in 
accordance with section 733(d) of the Act and our practice, we will 
instruct CBP to terminate the suspension of liquidation and to 
liquidate, without regard to antidumping duties, unliquidated entries 
of certain frozen and canned warmwater shrimp from the PRC entered, or 
withdrawn from warehouse, for consumption on or after January 12, 2005, 
and before the date of publication of the ITC's final injury 
determination in the Federal Register. Suspension of liquidation will 
continue on or after this date.
    On or after the date of publication of the ITC's notice of final 
determination in the Federal Register, CBP will require, at the same 
time as importers would normally deposit estimated duties on this 
merchandise, a cash deposit equal to the estimated weighted-average 
antidumping duty margins as listed below. The ``PRC-wide'' rate applies 
to all exporters of subject merchandise not listed specifically. 
Imports of the noted canned warmwater shrimp and prawns will not be 
covered by this order. We determine that the following percentage 
weighted-average margins exist for the POI:

          Certain Frozen and Canned Warmwater Shrimp From China
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                                                              Weighted-
                                                               average
                   Manufacturer/exporter                        margin
                                                              (percent)
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                          Mandatory Respondents
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Allied Pacific Group.......................................        80.19
Yelin Enterprise Co. Hong Kong.............................        82.27
Shantou Red Garden Foodstuff Co., Ltd......................        27.89
Zhanjiang Guolian Aquatic Products Co., Ltd................        0.07
PRC-Wide Margin............................................      112.81
             Section A--Respondents Receiving Separate Rate
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Asian Seafoods (Zhanjiang) Co., Ltd........................        53.68
Beihai Zhengwu Industry Co., Ltd...........................        53.68
Chaoyang Qiaofeng Group Co., Ltd.; (Shantou Qiaofeng               53.68
 (Group) Co., Ltd.); (Shantou/Chaoyang Qiaofeng)...........
Chenghai Nichi Lan Food Co., Ltd...........................        53.68
Dalian Ftz Sea-Rich International Trading Co., Ltd.........        53.68
Dongri Aquatic Products Freezing Plants....................        53.68
Fuqing Dongwei Aquatic Products Industry Co., Ltd..........        53.68
Gallant Ocean (Liangjiang) Co., Ltd........................        53.68
Hainan Fruit Vegetable Food Allocation Co., Ltd............        53.68
Hainan Golden Spring Foods Co., Ltd./Hainan Brich Aquatic          53.68
 Products Co., Ltd.........................................
Jinfu Trading Co., Ltd.....................................        53.68
Kaifeng Ocean Sky Industry Co., Ltd........................        53.68
Leizhou Zhulian Frozen Food Co., Ltd.......................        53.68
Pingyang Xinye Aquatic Products Co., Ltd...................        53.68
Savvy Seafood Inc..........................................        53.68
Shanghai Taoen International Trading Co., Ltd..............        53.68
Shantou Wanya Food Factory Co., Ltd........................        53.68
Shantou Jinyuan District Mingfeng Quick-Frozen Factory.....        53.68
Shantou Long Feng Foodstuffs Co., Ltd. (Shantou Longfeng           53.68
 Foodstuffs Co., Ltd.).....................................
Shantou Ocean Freezing Industry and Trade General                  53.68
 Corporation...............................................
Shantou Shengping Oceanstar Business Co., Ltd..............        53.68
Shantou Yuexing Enterprise Company.........................        53.68
Shantou Ruiyuan Industry Co., Ltd..........................        53.68
Shantou Freezing Aquatic Product Food Stuffs Co............        53.68
Shantou Jinhang Aquatic Industry Co., Ltd..................        53.68
Xuwen Hailang Breeding Co., Ltd............................        53.68
Yantai Wei-Cheng Food Co., Ltd.............................        53.68
Zhangjiang Bobogo Ocean Co., Ltd...........................        53.68
Zhangjiang Newpro Food Co., Ltd............................        53.68
Zhanjiang Go-Harvest Aquatic Products Co., Ltd.............        53.68
Zhanjiang Runhai Foods Co., Ltd............................        53.68
Zhanjiang Evergreen Aquatic Product Science and Technology         53.68
 Co., Ltd..................................................
Zhanjiang Universal Seafood Corp...........................        53.68
Zhejiang Cereals, Oils & Foodstuff Import & Export Co.,            53.68
 Ltd.......................................................
Zhoushan Xifeng Aquatic Co., Ltd...........................        53.68
Zhoushan Huading Seafood Co., Ltd..........................        53.68
Zhoushan Cereals, Oils and Foodstuffs Import and Export            53.68
 Co., Ltd..................................................
Zhoushan Lizhou Fishery Co., Ltd...........................        53.68
Zhoushan Diciyuan Aquatic Products Co., Ltd................        53.68
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[[Page 5152]]

Scope of the Order

    The scope of this order includes certain warmwater shrimp and 
prawns, whether frozen, 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.
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    \2\ ``Tails'' in this context means the tail fan, which includes 
the telson and the uropods.
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    The frozen warmwater shrimp and prawn products included in the 
scope of this investigation, regardless of definitions in the 
Harmonized Tariff Schedule of the United States (``HTS''), 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 investigation. 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 investigation.
    Excluded from the scope are: (1) Breaded shrimp and prawns ( HTS 
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 (HTS subheadings 0306.23.00.20 and 0306.23.00.40); (4) 
shrimp and prawns in prepared meals (HTS subheading 1605.20.05.10); (5) 
dried shrimp and prawns; (6) Lee Kum Kee's shrimp sauce; (7) canned 
warmwater shrimp and prawns (HTS subheading 1605.20.10.40); (8) certain 
dusted shrimp; and (9) 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 individually quick frozen (``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 investigation are currently classified 
under the following HTS 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 HTS subheadings are provided 
for convenience and for customs purposes only and are not dispositive, 
but rather the written description of the scope of this investigation 
is dispositive.

Continuation of Suspension of Liquidation

    Pursuant to 735(c)(1)(B) of the Act, we will instruct CBP to 
suspend liquidation of all entries of certain frozen warmwater shrimp 
and prawns from the PRC (except merchandise produced and exported by 
Zhanjiang Guolian because this company has a de minimis margin) 
entered, or withdrawn from warehouse, for consumption on or after July 
16, 2004, the date of publication of the Preliminary Determination. CBP 
shall continue to require a cash deposit or the posting of a bond equal 
to the estimated amount by which the normal value exceeds the U.S. 
price as shown above. These instructions suspending liquidation will 
remain in effect until further notice.
    With regard to canned warmwater shrimp and prawns, CBP shall 
discontinue suspension of liquidation of all shipments of this 
merchandise entered, or withdrawn from warehouse, for consumption on or 
after July 16, 2004. All estimated antidumping duties deposited on 
entries of the canned warmwater shrimp and prawns from the PRC shall be 
refunded and the bonds or other security released at the time of 
liquidation.
    This order is published in accordance with section 736(a) of the 
Act and 19 CFR 351.211.

    January 26, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. E5-371 Filed 1-31-05; 8:45 am]
BILLING CODE 3510-DS-P