[Federal Register Volume 69, Number 246 (Thursday, December 23, 2004)]
[Notices]
[Pages 76916-76918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28170]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-533-840]


Notice of Final Determination of Sales at Less Than Fair Value 
and Negative Final Determination of Critical Circumstances: Certain 
Frozen and Canned Warmwater Shrimp From India

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

EFFECTIVE DATE: December 23, 2004.
SUMMARY: On August 4, 2004, the Department of Commerce published its 
preliminary determination of sales at less than fair value of certain 
frozen and canned warmwater shrimp from India. 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: Elizabeth Eastwood or Jill Pollack, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230; telephone: (202) 482-3874 or (202) 482-4593, 
respectively.

SUPPLEMENTARY INFORMATION

Final Determination

    We determine that certain frozen and canned warmwater shrimp from 
India is being, or is likely to be, sold in the United States at less 
than fair value (LTFV), as provided in section 735 of the Tariff Act of 
1930, as amended (the Act). The estimated margins of sales of LTFV are 
shown in the ``Continuation of Suspension of Liquidation'' section of 
this notice. In addition, we determine that there is no reasonable 
basis to believe or suspect that critical circumstances exist with 
respect to imports of the subject merchandise from India.

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, Postponement of Final Determination, and 
Affirmative Preliminary Determination of Critical Circumstances: 
Certain Frozen and Canned Warmwater Shrimp from India, 69 FR 47111 
(Aug. 4, 2004) (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 companion 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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    From August through October 2004, we conducted verifications of the 
questionnaire responses of the three respondents in this case, Devi Sea 
Foods Limited (Devi), Hindustan Lever Limited (HLL), and Nekkanti 
Seafoods Limited (Nekkanti).
    In October 2004, we received case and rebuttal briefs from the 
petitioners, the respondents, and Xian-Ning Seafood Co., Ltd. (Xian-
Ning), an interested party in the companion investigation of frozen and 
canned warmwater shrimp from Thailand.\2\ The Department held a public 
hearing on November 3, 2004, at the request of Devi, HLL, Nekkanti, and 
the American Breaded Shrimp Processors, an interested party in this 
investigation. On November 23, 2004, the Department convened a public 
hearing on scope issues.
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    \2\ This brief related only to scope issues.
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    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.\3\
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    \3\ 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 this investigation, 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 (POI) 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 other 
issues raised in the case and rebuttal briefs by parties in this 
investigation are 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,\4\ deveined or not

[[Page 76917]]

deveined, cooked or raw, or otherwise processed in frozen or canned 
form.
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    \4\ ``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 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 
(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) 
certain dusted shrimp; and (7) 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 investigation 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, 1605.20.10.30, and 1605.20.10.40. 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 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.

Critical Circumstances

    In our preliminary determination, we found that critical 
circumstances existed with respect to HLL's exports of the subject 
merchandise, but not for exports made by Devi, Nekkanti, or the 
companies subject to the ``all others'' rate. See Preliminary 
Determination, 69 FR at 47118-47119. We received comments on our 
preliminary finding of critical circumstances from HLL, which argues 
that we should no longer find that critical circumstances exist for it 
because the increase in imports shown in the Department's critical 
circumstances analysis was the result of seasonality. We also received 
comments from the petitioners, who support the preliminary finding of 
critical circumstances for HLL.
    To determine whether there is a history of injurious dumping of the 
merchandise under investigation, in accordance with section 
735(a)(3)(A)(i) of the Act, the Department normally considers evidence 
of an existing antidumping duty order on the subject merchandise in the 
United States or elsewhere to be sufficient. See Preliminary 
Determination of Critical Circumstances: Steel Concrete Reinforcing 
Bars From Ukraine and Moldova, 65 FR 70696 (Nov. 27, 2000). With regard 
to imports of certain frozen and canned warmwater shrimp from India, 
the petitioners make no statement concerning a history of dumping. We 
are not aware of any antidumping order in the United States or in any 
country on certain frozen and canned warmwater shrimp from India. For 
this reason, the Department does not find a history of injurious 
dumping of the subject merchandise from India pursuant to section 
735(a)(3)(A)(i) of the Act.
    To determine whether the person by whom, or for whose account, the 
merchandise was imported knew or should have known that the exporter 
was selling the subject merchandise at less than its fair value and 
that there was likely to be material injury by reason of such sales in 
accordance with section 735(a)(3)(A)(ii) of the Act, the Department 
normally considers margins of 25 percent or more for export price (EP) 
sales or 15 percent or more for constructed export price transactions 
sufficient to impute knowledge of dumping. See Preliminary 
Determination of Sales at Less Than Fair Value: Certain Cut-to-Length 
Carbon Steel Plate from the People's Republic of China, 62 FR 31972, 
31978 (Oct. 19, 2001). Each of the respondents made only EP sales 
during the POI and the final dumping margin calculated for each 
respondent, including HLL, is less than 25 percent. Therefore, we 
determine that there is an insufficient basis to find that importers 
should have known that the respondents were selling the subject 
merchandise at less than its fair value and that there was likely to be 
material injury by reason of such sales pursuant to section 
735(a)(3)(A)(ii) of the Act.
    Because the requirements of section 735(a)(3)(A) of the Act are not 
met, we determine that critical circumstances do not exist for imports 
of subject merchandise from India. For further discussion, see the 
Decision Memorandum at Comment 20.

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

[[Page 76918]]

liquidation of all entries of certain frozen and canned warmwater 
shrimp from India 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. However, because we 
find that critical circumstances do not exist with regard to imports by 
HLL of certain frozen and canned warmwater shrimp from India, we will 
instruct CBP to terminate the retroactive suspension of liquidation for 
HLL between May 6, 2004 (90 days prior to the date of publication of 
the preliminary determination), and August 4, 2004, which was 
instituted due to the preliminary affirmative critical circumstances 
finding for this respondent. CBP shall also release any bond or other 
security, and refund any cash deposit required, under section 
733(d)(1)(B) of the Act with respect to HLL's entries of the 
merchandise the liquidation of which was suspended retroactively under 
section 733(e)(2) of the Act. For entries on or after August 4, 2004, 
CBP shall continue to require a cash deposit or the posting of a bond 
based on the estimated weighted-average dumping margins 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:

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                                                        Weighted-average
                Exporter/manufacturer                  margin percentage
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Devi Sea Foods Ltd...................................               5.02
Hindustan Lever Ltd..................................              13.42
Nekkanti Seafoods Ltd................................               9.71
All Others...........................................               9.45
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    In accordance with section 735(c)(5)(A), we have based the ``All 
Others'' rate on the weighted average of the dumping margins calculated 
for the exporters/manufacturers investigated in this proceeding.

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 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 this determination and notice in 
accordance with sections 735(d) and 777(i) of the Act.

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

Appendix--Issues in the Decision Memorandum

Comments

1. Offsets for Non-Dumped Sales
2. Methodology for Calculating the ``All Others'' Rate
3. Use of Container Weight as a Matching Characteristic
4. Position of Species in the Matching Hierarchy
5. ``As Sold'' Versus ``HLSO'' Product Comparisons
6. Use of Forward Exchange Contracts to Make Currency Conversions
7. Revenue from the Duty Entitlement Passbook Scheme
8. Export House Revenue
9. Ministerial Errors in the Preliminary Determination
10. Selection of Comparison Market for Devi
11. Credit Expenses for Devi
12. Third Country Sale Outside the Ordinary Course of Trade for HLL
13. Glazing Adjustment for HLL
14. Filler Adjustment for HLL
15. Bank Charges for HLL
16. General and Administrative Expenses for HLL
17. Level at Which Financing Expenses Are Calculated for HLL
18. Offset to Financing Expenses for HLL
19. Cost Reconciliation for HLL
20. Critical Circumstances for HLL
21. Additional Revenue for Nekkanti

[FR Doc. 04-28170 Filed 12-21-04; 10:32 am]
BILLING CODE 3510-DS-P