[Federal Register Volume 74, Number 149 (Wednesday, August 5, 2009)]
[Notices]
[Pages 39042-39045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18724]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-549-822]


Certain Frozen Warmwater Shrimp From Thailand: Preliminary 
Results of Antidumping Duty Changed Circumstances Review and Notice of 
Intent to Revoke in Part

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

DATES: Effective Date: August 5, 2009.
SUMMARY: On March 24, 2009, the Department of Commerce (the

[[Page 39043]]

Department) published a notice of initiation of a changed circumstances 
review of the antidumping duty order on frozen warmwater shrimp from 
Thailand to consider whether it is appropriate to revoke the order in 
part with respect to two companies, Phatthana Frozen Food Co., Ltd. 
(PFF) and Sea Wealth Frozen Food Co., Ltd. (Sea Wealth), pursuant to 
section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), and 
19 CFR 351.216(b) and 351.222. See Certain Frozen Warmwater Shrimp from 
Thailand: Initiation of Antidumping Duty Changed Circumstances Review, 
74 FR 12308 (Mar. 24, 2009) (Initiation Notice). Upon analyzing the 
information provided by the two companies, we preliminarily determine 
that PFF and Sea Wealth should be revoked from the antidumping duty 
order on certain frozen warmwater shrimp from Thailand.

FOR FURTHER INFORMATION CONTACT: Henry Almond; AD/CVD Operations, 
Office 2, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230; telephone: (202) 482-0049.

SUPPLEMENTARY INFORMATION: 

Background

    On February 1, 2005, the Department published in the Federal 
Register an antidumping duty order on certain frozen warmwater shrimp 
from Thailand. See Notice of Amended Final Determination of Sales at 
Less Than Fair Value and Antidumping Duty Order: Certain Frozen 
Warmwater Shrimp From Thailand, 70 FR 5145 (Feb. 1, 2005) (Thai Shrimp 
Order).
    Subsequent to the issuance of this order, the Thai Government 
challenged the Department's practice of offsetting dumped sales with 
non-dumped sales in the LTFV investigation of certain frozen warmwater 
shrimp from Thailand before the World Trade Organization. In November 
2008, the Department initiated a Section 129 proceeding to reconsider 
this practice with respect to Thai shrimp, and in January 2009 it 
issued a final determination in that proceeding which resulted in the 
revocation of the order related to shrimp produced and exported by two 
entities--Thai I-Mei and the Rubicon Group. See Implementation of the 
Findings of the WTO Panel in United States--Antidumping Measure on 
Shrimp From Thailand: Notice of Determination Under Section 129 of the 
Uruguay Round Agreements Act and Partial Revocation of the Antidumping 
Duty Order on Frozen Warmwater Shrimp From Thailand, 74 FR 5638, 5638 
(Jan. 30, 2009) (Section 129 Implementation). For purposes of this 
determination the Department defined the Rubicon Group as consisting of 
the following nine companies, which were the group members existing at 
the time of the LTFV investigation: Andaman Seafood Co., Ltd., 
Chanthaburi Frozen Food Co., Ltd., Chanthaburi Seafoods Co., Ltd., 
Intersia Foods Co., Ltd., Phatthana Seafood Co., Ltd., S.C.C. Frozen 
Seafood Co., Ltd., Thailand Fishery Cold Storage Public Co., Ltd., Thai 
International Seafoods Co., Ltd., and Wales & Co. Universe Limited. See 
Section 129 Implementation, 74 FR at 5639.
    On February 5, 2009, the Rubicon Group requested that the 
Department conduct an expedited changed circumstances review under 19 
CFR 351.221(c)(3)(iii) to consider also revoking PFF and Sea Wealth 
from the Thai Shrimp Order. According to the Rubicon Group, although 
these two companies were not included in the Department's margin 
calculations in the LTFV investigation, the Department has treated them 
as part of the Rubicon Group in subsequent segments of this proceeding. 
In this request, the Rubicon Group also asked that any revocation for 
PFF and Sea Wealth be made effective January 16, 2009, the effective 
date of the Section 129 Implementation.
    On February 12, 2009, we requested that the Rubicon Group clarify 
its changed circumstances review request to identify the relevant 
statutory provision under which its request fell. On February 13, 2009, 
the Rubicon Group clarified its changed circumstances review request, 
stating that it would be appropriate for the Department to evaluate its 
request using either a ``collapsing'' analysis under 19 CFR 351.401(a) 
or the Department's ``successor-in-interest'' analysis, pursuant to 
section 751(b)(1) of the Act and 19 CFR 351.216(b).
    On February 18, 2009, we requested further information from the 
Rubicon Group with respect to the four factors examined by the 
Department in a successor-in-interest determination: Management; 
production facilities; supplier relationships; and customer base. On 
March 13, 2009, the Rubicon Group submitted the requested information.
    On April 29, 2009, we placed documents from the LTFV investigation 
relating to the corporate structure of the Rubicon Group as it existed 
during the LTFV investigation on the record of this changed 
circumstances review. On that date, we also requested additional 
information from the Rubicon Group. On May 27, 2009, the Rubicon Group 
submitted the requested information.

Scope of the Order

    The scope of this order includes certain frozen warmwater shrimp 
and prawns, whether wild-caught (ocean harvested) or farm-raised 
(produced by aquaculture), head-on or head-off, shell-on or peeled, 
tail-on or tail-off,\1\ deveined or not deveined, cooked or raw, or 
otherwise processed in frozen form.
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    \1\ ``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 order, regardless of definitions in the Harmonized Tariff 
Schedule of the United States (HTSUS), 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 order. 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 order.
    Excluded from the scope are: (1) Breaded shrimp and prawns (HTSUS 
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 (HTSUS subheadings 0306.23.00.20 and 0306.23.00.40); (4) 
shrimp and prawns in prepared meals (HTSUS subheading 1605.20.05.10); 
(5) dried shrimp and

[[Page 39044]]

prawns; (6) canned warmwater shrimp and prawns (HTSUS subheading 
1605.20.10.40); (7) certain dusted shrimp; and 8) 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 order 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, and 1605.20.10.30. 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 order is 
dispositive.

Preliminary Results of Changed Circumstances Review

    Pursuant to section 751(b)(1) of the Act and 19 CFR 351.216, the 
Department will conduct a changed circumstances review upon receipt of 
information concerning, or request from an interested party for review 
of, an antidumping duty order which shows changed circumstances 
sufficient to warrant review of the order. In this case, the Department 
found that the information submitted by the Rubicon Group provided 
evidence of changed circumstances sufficient to warrant a review. See 
Initiation Notice, 74 FR at 12309. Thus, in accordance with section 
751(b) of the Act, the Department initiated a changed circumstances 
review to determine whether the current Rubicon Group is the successor-
in-interest to the Rubicon Group as it existed at the time of the LTFV 
investigation. Id. In making a successor-in-interest determination, the 
Department examines several factors including, but not limited to, 
changes in the following: (1) Management; (2) production facilities; 
(3) supplier relationships; (4) customer base. See Brake Rotors From 
the People's Republic of China: Final Results of Changed Circumstances 
Antidumping Duty Administrative Review, 70 FR 69941 (Nov. 18, 2005); 
and Notice of Final Results of Changed-Circumstances Antidumping Duty 
Administrative Review: Polychloroprene Rubber From Japan, 67 FR 58 
(Jan. 2, 2002). While no single factor or combination of factors will 
necessarily provide a dispositive indication of a successor-in-interest 
relationship, the Department will generally consider the new company to 
be the successor to the previous company if the new company's resulting 
operation is not materially dissimilar to that of its predecessor. See 
Fresh and Chilled Atlantic Salmon From Norway: Final Results of Changed 
Circumstances Antidumping Duty Administrative Review, 64 FR 9979 (Mar. 
1, 1999); and Industrial Phosphoric Acid From Israel: Final Results of 
Antidumping Duty Changed Circumstances Review, 59 FR 6944 (Feb. 4, 
1994). Thus, if the evidence demonstrates that, with respect to the 
production and sale of subject merchandise, the new company operates as 
the same business entity as the former company, the Department will 
accord the new company the same antidumping treatment as its 
predecessor.
    The Rubicon Group has submitted information demonstrating that PFF 
and Sea Wealth are fully integrated into the Rubicon Group by virtue of 
being owned and controlled by other Rubicon Group companies and that 
the two companies are strategically engaged with the other Rubicon 
Group companies in the production and sale of subject merchandise to 
the United States. See the July 29, 2009, memorandum from Henry Almond, 
Analyst, to James Maeder, Director, entitled, ``Successor-In-Interest 
Determination for the Rubicon Group in the Changed Circumstances Review 
of Certain Frozen Warmwater Shrimp from Thailand'' at pages 3-6 
(Successor Memo). Further, the addition of PFF and Sea Wealth to the 
Rubicon Group has not altered the Rubicon Group's production capacity 
or significantly changed the Rubicon Group's production facilities. See 
the Successor Memo at page 5. Finally, the Rubicon Group continues to 
source its shrimp from the same suppliers and sell its shrimp to the 
same and similar customers as it did during the POI. See the Successor 
Memo at pages 5-6.
    Based on the information submitted by the Rubicon Group, we 
preliminary find that there have been no significant changes in any of 
the four factors outlined above since the POI. Regarding its management 
structure, the Rubicon Group has submitted information demonstrating 
that PFF and Sea Wealth are fully integrated into the Rubicon Group by 
virtue of being owned and controlled by other Rubicon Group companies 
and that the two companies are involved with the other Rubicon Group 
companies in the production and sale of subject merchandise to the 
United States. Because the Rubicon Group has demonstrated that there 
has been no change in the management of the Rubicon Group as a result 
of the addition of PFF and Sea Wealth, we preliminarily find there has 
been no significant change in the management of the Rubicon Group since 
the POI. Regarding the Rubicon Group's production capacity and 
facilities, although the Rubicon Group has closed one production 
facility and opened one new facility since the POI, the group's overall 
production capacity and production and packaging processes have not 
changed since the POI. Thus, based upon the information submitted by 
the Rubicon Group, we preliminarily find that there has been no 
significant change in the Rubicion Group's production facilities since 
the POI. Regarding the Rubicon Group's supplier relationships, the 
Rubicon Group has submitted information demonstrating that its 
suppliers and supplier relationships have not changed since the POI. 
Accordingly, we preliminarily find that there has been no significant 
change in the Rubicon Group's suppliers or supplier relationships since 
the POI. Regarding the Rubicon Group's customer base, the Rubicon Group 
submitted POI and current customer lists which demonstrate that there 
has been no significant change in its customers since the POI. Based 
upon this information, we preliminarily find that there has been no 
significant change in the Rubicon Group's customer base since the POI. 
For further discussion of the four factors, see the Successor Memo at 
pages 3-6.
    Accordingly, we preliminarily determine that the Rubicon Group in 
its current form, including PFF and Sea Wealth, is the successor-in-
interest to the Rubicon Group as it existed during the POI of the LTFV 
investigation. Thus, if these preliminary results are adopted in our 
final results of this changed circumstances review, we will consider 
PFF and Sea Wealth to be part of the Rubicon Group and, therefore, 
revoke them from the Thai Shrimp Order.
    This finding is consistent with our treatment of these companies as 
a single entity in the 06-07 Final Results, the most recently completed 
administrative

[[Page 39045]]

review. See Certain Frozen Warmwater Shrimp From Thailand: Final 
Results and Final Partial Rescission of Antidumping Duty Administrative 
Review, 73 FR 50933, 50937 (Aug. 29, 2008).
    Finally, in its changed circumstances review request the Rubicon 
Group requested that any resulting revocation for PFF and Sea Wealth be 
effective as of January 16, 2009 (the effective date of the Section 129 
Implementation). Consistent with our treatment of companies excluded 
from antidumping duty orders which are subject to subsequent successor-
in-interest determinations, we will apply this successor-in-interest 
determination retroactively to the dates PFF and Sea Wealth were formed 
and became part of the Rubicon Group (i.e., August 31, 2005, for PFF 
and July 24, 2003, for Sea Wealth). See, e.g., Stainless Steel Wire Rod 
From Italy: Notice of Final Results of Changed Circumstances 
Antidumping Duty Review, 71 FR 24643, 24644 (Apr. 26, 2006). Because 
these dates are prior to January 16, 2009, we find that it is 
appropriate to revoke the antidumping duty order with respect to frozen 
warmwater shrimp produced and exported by PFF and Sea Wealth as of 
January 16, 2009, consistent with our treatment of the other members of 
the Rubicon Group.\2\ See Section 129 Implementation, 74 FR at 5639.
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    \2\ We note that this revocation will apply to merchandise 
produced by any Rubicon Group member and exported by PFF or Sea 
Wealth, as well as to merchandise produced by PFF or Sea Wealth and 
exported by any other Rubicon Group member.
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Public Comment

    Parties wishing to comment on these results must submit briefs to 
the Department within 30 days after the publication of this notice in 
the Federal Register. Parties will have five days subsequent to this 
due date to submit rebuttal briefs. Parties who submit comments or 
rebuttal briefs in this proceeding are requested to submit with the 
argument: (1) A statement of the issue, and (2) a brief summary of the 
argument (no longer than five pages, including footnotes). Any requests 
for hearing must be filed within 30 days of the publication of this 
notice in the Federal Register. In accordance with 19 CFR 351.216(e), 
the Department will issue its final results of review within 270 days 
after the date on which the changed circumstances review was initiated 
(i.e., no later than December 21, 2009).
    We are issuing and publishing this notice in accordance with 
sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 351.216.

    Dated: July 29, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-18724 Filed 8-4-09; 8:45 am]
BILLING CODE 3510-DS-P