[Federal Register Volume 69, Number 246 (Thursday, December 23, 2004)]
[Notices]
[Pages 76913-76916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28169]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-331-802]


Notice of Final Determination of Sales at Less Than Fair Value: 
Certain Frozen and Canned Warmwater Shrimp From Ecuador

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

EFFECTIVE DATE: December 23, 2004.
SUMMARY: On August 4, 2004, the Department of Commerce (the Department) 
published its preliminary determination of sales at less-than-fair-
value (LTFV) of certain frozen and canned warmwater shrimp from 
Ecuador. The period of investigation is October 1, 2002, through 
September 30, 2003.
    Based on our analysis of the comments received, we have made 
changes in the margin calculations. Therefore, the final determination 
differs from the preliminary determination. The final weighted-average 
dumping margins for the investigated companies are listed below in the 
section entitled ``Final Determination Margins.''

FOR FURTHER INFORMATION CONTACT: David J. Goldberger or Terre Keaton,

[[Page 76914]]

Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230; telephone: (202) 482-4136, or (202) 482-1280, 
respectively.

SUPPLEMENTARY INFORMATION:

Final Determination

    We determine that certain frozen and canned warmwater shrimp from 
Ecuador is being, or is likely to be, sold in the United States at 
LTFV, as provided in section 735 of the Tariff Act of 1930, as amended 
(the Act). The estimated margins of sales at LTFV are shown in the 
``Suspension of Liquidation'' section of this notice.

Case History

    The preliminary determination in this investigation was published 
on August 4, 2004. See Notice of Preliminary Determination of Sales at 
Less Than Fair Value and Postponement of Final Determination: Certain 
Frozen and Canned Warmwater Shrimp From Ecuador, 69 FR 47091 
(Preliminary Determination).
    Since the preliminary determination, the following events have 
occurred. During the period July through October 2004, various 
interested parties, including the petitioners,\1\ submitted comments on 
the scope of this and the concurrent investigations of certain frozen 
and canned warmwater shrimp.
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    \1\ The petitioners in this investigation are the Ad Hoc Shrimp 
Trade Action Committee (an ad hoc coalition representative of U.S. 
producers of frozen and canned warmwater shrimp and harvesters of 
wild-caught warmwater shrimp), Versaggi Shrimp Corporation, and 
Indian Ridge Shrimp Company.
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    In August and September 2004, we conducted sales and cost 
verifications of the questionnaire responses of the three respondents 
in this case, Exporklore S.A. (Exporklore), Exportadora De Alimentos 
S.A. (Expalsa), and Promarisco S.A. (Promarisco).
    On August 13, 2004, the respondents requested a public hearing. We 
received case briefs on October 28, 2004, from the petitioners and the 
respondents. Promarisco resubmitted its brief on November 3, 2004, at 
the Department's request, in order to exclude unsolicited new factual 
information. In addition, in October 2004, Xian-Ning Seafood Co., Ltd., 
an interested party in the companion investigation of frozen and canned 
warmwater shrimp from Thailand, and two interested parties in this 
investigation, Eastern Fish Company, Inc., and Long John Silver's, 
Inc., submitted case and rebuttal briefs with respect to scope issues.
    On November 5 and 10, 2004, pursuant to the Department's request, 
Exporklore and Expalsa, respectively, submitted revised sales and cost 
databases which incorporated certain changes discovered in preparation 
for and during verification.
    On November 23, 2004, the Department convened a public hearing on 
scope issues. On November 29, 2004, the Department made final scope 
determinations with respect to shrimp scampi and dusted and battered 
shrimp. See the November 29, 2004, Memoranda from Edward C. Yang to 
Barbara E. Tillman, Acting Deputy Assistant Secretary for Import 
Administration entitled ``Scope Clarification on Shrimp Scampi''; and 
``Scope Clarification on Dusted Shrimp and Battered Shrimp,'' 
respectively. See also the ``Scope of Investigation'' section of this 
notice, below, for further discussion.\2\
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    \2\ In addition to these scope determinations, the Department 
previously made five other scope determinations: (1) On May 21, 
2004, the Department declined to expand the scope of this 
investigation to include fresh (never frozen) shrimp; (2) on July 2, 
2004, pursuant to a request from Ocean Duke Corporation, an 
interested party in the companion investigation of frozen and canned 
warmwater shrimp from Thailand, the Department found that its 
``Seafood Mix'' is excluded from the scope of this investigation; 
(3) on July 2, 2004, the Department found that salad shrimp, sold in 
counts of 250 pieces or higher, are included within the scope of 
this investigation; (4) on July 2, 2004, the Department found that 
Macrobrachium rosenbergii and organic shrimp are included within the 
scope of this investigation; and (5) on July 2, 2004, the Department 
found that peeled shrimp are included within the scope of this 
investigation.
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    Also on November 29, 2004, the Department clarified that a shrimp 
sauce produced by a company in the companion investigation of frozen 
and canned warmwater shrimp from the People's Republic of China, Lee 
Kum Kee (USA) Inc., is not covered by the scope of that investigation. 
See the November 29, 2004, Memorandum from Edward C. Yang to Barbara E. 
Tillman, Acting Deputy Assistant Secretary for Import Administration 
entitled ``Scope Clarification on Lee Kum Kee's Shrimp Sauce.''

Period of Investigation

    The period of investigation is October 1, 2002, through September 
30, 2003.

Analysis of Comments Received

    The various scope issues are discussed in the ``Case History'' 
section of this notice and the separate scope memoranda. All issues 
raised in the case briefs by parties to this proceeding and to which we 
have responded are listed in the appendix to this notice and addressed 
in the ``Issues and Decision Memorandum'' (Decision Memorandum) from 
Barbara E. Tillman, Acting Deputy Assistant Secretary for Import 
Administration, to James J. Jochum, Assistant Secretary for Import 
Administration, dated December 17, 2004, which is adopted by this 
notice. Parties can find a complete discussion of the issues raised in 
this investigation and the corresponding recommendations in this public 
memorandum, which is on file in the Central Records Unit, room B-099 of 
the main Commerce Building. In addition, a complete version of the 
Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/frn/index.html. The paper copy and electronic version of 
the Decision Memorandum are identical in content.

Scope of 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,\3\ deveined or not deveined, cooked or 
raw, or otherwise processed in frozen or canned form.
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    \3\ ``Tails'' in this context means the tail fan, which includes 
the telson and the uropods.
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    The frozen or canned warmwater shrimp and prawn products included 
in the scope of this 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 investigation. In addition, food 
preparations, which are not ``prepared

[[Page 76915]]

meals,'' that contain more than 20 percent by weight of shrimp or prawn 
are also 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); (5) dried shrimp and prawns; (6) dusted 
shrimp; and (7) 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 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 description of the scope of 
this investigation is dispositive.

Changes Since the Preliminary Determination

    Based on our analysis of the comments received and our findings at 
verification, we have made certain changes to the margin calculations. 
For a discussion of these changes, see the ``Margin Calculations'' 
section of the Decision Memorandum.

Verification

    As provided in section 782(i) of the Act, we verified the 
information submitted by the respondents for use in our final 
determination. We used standard verification procedures including 
examination of relevant accounting and production records, and original 
source documents provided by the respondents.

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we are 
directing U.S. Customs and Border Protection (CBP) to continue to 
suspend liquidation of all entries of certain frozen and canned 
warmwater shrimp from Ecuador that are entered, or withdrawn from 
warehouse, for consumption on or after August 4, 2004, the publication 
date of the preliminary determination in the Federal Register. CBP 
shall continue to require a cash deposit or the posting of a bond based 
on the estimated weighted-average dumping margin shown below. The 
suspension of liquidation instructions will remain in effect until 
further notice.

Final Determination Margins

    The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                                              Weighted-
                                                               average
                   Exporter/Manufacturer                       margin
                                                             percentage
------------------------------------------------------------------------
Exportadora De Alimentos S.A. (Expalsa)...................          2.62
Exporklore S.A............................................          2.35
Promarisco S.A............................................          4.48
All Others................................................          3.26
------------------------------------------------------------------------

ITC Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (ITC) of our determination. As our final 
determination is affirmative, the ITC will determine within 45 days 
whether these imports are causing material injury, or threat of 
material injury, to an industry in the United States. If the ITC 
determines that material injury or threat of injury does not exist, the 
proceeding will be terminated and all securities posted will be 
refunded or canceled. If the ITC determines that such injury does 
exist, the Department will issue an antidumping duty order directing 
CBP officials to assess antidumping duties on all imports of the 
subject merchandise entered, or withdrawn from warehouse, for 
consumption on or after the effective date of the suspension of 
liquidation.
    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
    We are issuing and publishing this determination and notice in 
accordance with sections 735(d) and 777(i) of the Act.

    Dated: December 17, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.

Appendix--Issues in the Decision Memorandum

Comments

Comment 1: Offsets for Non-Dumped Sales
Comment 2: Exclusion of Substandard Shrimp from the U.S. Sales 
Databases
Comment 3: ``Container Weight'' as Product Matching Characteristic
Comment 4: ``As Sold'' Versus HLSO Basis for Price and Quantity
Comment 5: ``Packaging'' Materials Versus ``Packing'' Materials
Comment 6: Expalsa's and Promarisco's Inland Freight and Testing 
Expense Methodology
Comment 7: Expalsa's Sales of Organic Shrimp
Comment 8: Grade as a Model-Matching Criterion for Expalsa Sales
Comment 9: Expalsa's Sales of ``Non-Standard Mixes''
Comment 10: Treatment of Expalsa's Expenses for Returned Shipments
Comment 11: Expalsa's Post-Petition Filing Billing Adjustments
Comment 12: Treatment of Certain Expalsa Sales to Italy as Samples
Comment 13: Rebates on Expalsa's Italian Sales
Comment 14: Cost Changes for Expalsa's Minor Corrections of 
Preservative Code
Comment 15: Payments to Exporklore's Sales Agent as Rebates or 
Commissions
Comment 16: Methodology for Calculating Exporklore's Payment to 
Agent for Italian Sales
Comment 17: Ocean Freight Revenue and Expense Treatment on 
Exporklore C&F Sales
Comment 18: Exporklore Bank Charges
Comment 19: Exporklore's Raw Material Costs
Comment 20: Currency Adjustment in Calculation of Exporklore's 
Financial Expense Ratio
Comment 21: Treatment of Commissions Paid to Affiliates in 
Exporklore's Labor Costs
Comment 22: Spain as the Appropriate Comparison Market for 
Promarisco
Comment 23: Classification and Exclusion of Certain Promarisco 
Spanish Sales as Samples
Comment 24: Billing Adjustments and Date of Sale for Certain 
Promarisco U.S. Long-Term Contract Sales
Comment 25: Bonus Payment to Promarisco's Spanish Sales Agent
Comment 26: Calculation of Promarisco's Indirect Selling Expense 
Ratio
Comment 27: Adjustment for Unreconciled Differences in Promarisco's 
Cost of Manufacture
Comment 28: Input Adjustment for Promarisco's Shrimp Purchases from 
Affiliated Farms

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Comment 29: Adjustment of Promarisco's G&A Expense Ratio to Exclude 
Packing Expenses

[FR Doc. 04-28169 Filed 12-21-04; 10:32 am]
BILLING CODE 3510-DS-P