[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Notices]
[Pages 3446-3448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1070]



[[Page 3446]]

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-802]


Certain Frozen Warmwater Shrimp From the Socialist Republic of 
Vietnam: Preliminary Intent To Rescind New Shipper Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On February 1, 2005, the Department of Commerce (``the 
Department'') published in the Federal Register the antidumping duty 
order on certain frozen warmwater shrimp from the Socialist Republic of 
Vietnam (``Vietnam''). See Notice of Amended Final Determination of 
Sales at Less Than Fair Value and Antidumping Duty Order: Certain 
Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 70 FR 
5152 (February 1, 2005) (``VN Shrimp Order''). The Department is 
conducting a new shipper review (``NSR'') of the VN Shrimp Order, 
covering the period of review (``POR'') of February 1, 2008, through 
January 31, 2009. Because the sale made by Nhat Duc was not bona fide, 
we have preliminarily determined to rescind this new shipper review.

DATES: Effective Date: January 21, 2010.

FOR FURTHER INFORMATION CONTACT: Paul Walker or Toni Dach, 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-
0413 or (202) 482-1655, respectively.

SUPPLEMENTARY INFORMATION:

General Background

    On February 26, 2009, pursuant to section 751(a)(2)(B)(i) of the 
Tariff Act of 1930, as amended (``the Act''), and 19 CFR 351.214(c), 
the Department received a NSR request from Nhat Duc Co., Ltd. (``Nhat 
Duc''). On March 20, 2009, the Department initiated a new shipper 
review of Nhat Duc. See Certain Frozen Warmwater Shrimp from the 
Socialist Republic of Vietnam: Initiation of Antidumping Duty New 
Shipper Review, 74 FR 13416 (March 27, 2009).
    On April 7, 2009, the Department issued its non-market economy 
(``NME'') questionnaire to Nhat Duc. Nhat Duc responded to the 
Department's NME questionnaire and subsequent supplemental 
questionnaires between May and October 2009.

Extension of Time Limits

    On September 8, 2009, the Department extended the time limits for 
these preliminary results. See Certain Frozen Warmwater Shrimp from the 
Socialist Republic of Vietnam: Extension of Preliminary Results of 
Antidumping Duty New Shipper Review, 74 FR 47190 (September 15, 2009).

Surrogate Country and Surrogate Values

    On August 7, 2009, Nhat Duc submitted surrogate country comments, 
and on September 4, 2009, Nhat Duc submitted surrogate value data. No 
other party submitted surrogate country or surrogate value data.

Verification

    Pursuant to 19 CFR 351.307(b)(iv), we conducted verification of the 
sales and factors of production (``FOP'') for Nhat Duc between November 
16-18, 2009. See Memorandum to the File from Paul Walker, Senior Case 
Analyst and Toni Dach, Case Analyst through Scot T. Fullerton, Program 
Manager, Verification of the Sales and Factors of Production Response 
of Nhat Duc Co., Ltd. in the Antidumping Duty New Shipper Review of 
Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 
dated January 12, 2010.

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 (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) canned warmwater shrimp and prawns (HTS 
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

[[Page 3447]]

the written description of the scope of this order is dispositive.

Preliminary Intent To Rescind

    Consistent with the Department's practice, we investigated the bona 
fide nature of the sale made by Nhat Duc for this new shipper review. 
In evaluating whether or not a sale in a new shipper review is 
commercially reasonable, and therefore bona fide, the Department 
considers, inter alia, such factors as: (1) The timing of the sale; (2) 
the price and quantity; (3) the expenses arising from the transaction; 
(4) whether the goods were resold at a profit; and (5) whether the 
transaction was made on an arms-length basis. See Tianjin Yiancheng 
Pharmaceutical Co., Ltd. v. United States, 366 F. Supp. 2d 1246, 1250 
(CIT 2005) (``TTPC''). Accordingly, the Department considers a number 
of factors in its bona fides analysis, ``all of which may speak to the 
commercial realities surrounding an alleged sale of the subject 
merchandise.'' See Hebei New Donghua Amino Acid Co., Ltd. v. United 
States, 374 F. Supp. 2d 1333, 1342 (CIT 2005) (``New Donghua'') (citing 
Fresh Garlic From the People's Republic of China: Final Results of 
Antidumping Administrative Review and Rescission of New Shipper Review, 
67 FR 11283 (March 13, 2002) and accompanying Issues and Decision 
Memorandum: New Shipper Review of Clipper Manufacturing Ltd.). Also, in 
TTPC, the court affirmed the Department's practice of considering that 
``any factor which indicates that the sale under consideration is not 
likely to be typical of those which the producer will make in the 
future is relevant,'' (See TTPC, 366 F. Supp. 2d at 1250), and found 
that ``the weight given to each factor investigated will depend on the 
circumstances surrounding the sale.'' See TTPC 366 F. Supp. 2d at 1263. 
Finally, in New Donghua, the CIT affirmed the Department's practice of 
evaluating the circumstances surrounding a NSR sale so that a 
respondent does not unfairly benefit from an atypical sale, and obtain 
a lower dumping margin than the producers usual commercial practice 
would dictate. Where a review is based on a single sale, exclusion of 
that sale as non-bona fide necessarily must end the review. See TTPC, 
366 F. Supp. 2d at 1249.
    In analyzing Nhat Duc's single POR sale to the United States, the 
Department preliminarily determines that this sale is not bona fide, as 
it is not typical of Nhat Duc's usual commercial practices or is it 
commercially reasonable. Further, the Department is unable to analyze 
whether the sale was conducted on an arm's-length basis. The Department 
reached this conclusion based on the totality of the circumstances, 
namely: (a) The atypical nature of Nhat Duc's POR pricing; (b) the 
timing and extent of payment receipt for Nhat Duc's single POR sale; 
(c) the existence of undisclosed sales subsequent to Nhat Duc's single 
POR sale; (d) the atypical nature of Nhat Duc's production timeline for 
its POR U.S. sale; (e) irregularities in Nhat Duc's sales negotiation 
correspondence and the unverifiable nature of this correspondence; and 
(f) the unverifiable nature of Nhat Duc's founding capital sources. 
Since much of our analysis regarding the evidence of the bona fide of 
the transaction involves business proprietary information, a full 
discussion of the bases for our decision to find Nhat Duc's single POR 
sale not bona fide is set forth in the Memorandum to the File from Toni 
Dach, Case Analyst, through Scot T. Fullerton, Program Manager, 
Regarding Antidumping Duty New Shipper Review of Certain Frozen 
Warmwater Shrimp from the Socialist Republic of Vietnam: Bona Fide 
Nature of the Sale Under Review for Nhat Duc Co., Ltd.
    Therefore, the Department is preliminarily rescinding the new 
shipper review for Nhat Duc, as Nhat Duc's single sale during the POR 
is not bona fide and, consequently, not subject to review.

Comments

    In accordance with 19 CFR 351.301(c)(1), for the final results of 
this new shipper review, interested parties may submit factual 
information to rebut, clarify, or correct factual information submitted 
by an interested party less than ten days before, on, or after, the 
applicable deadline for submission of such factual information. 
However, the Department notes that 19 CFR 351.301(c)(1) permits new 
information only insofar as it rebuts, clarifies, or corrects 
information recently placed on the record.\2\
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    \2\ See Glycine from the People's Republic of China: Final 
Results of Antidumping Duty Administrative Review and Final 
Rescission in Part, 72 FR 58809 (October 17, 2007), and accompanying 
Issues and Decision Memorandum at Comment 2.
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    Interested parties may submit case briefs and/or written comments 
no later than 30 days after the date of publication of these 
preliminary results of this new shipper review. See 19 CFR 
351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, 
limited to issues raised in such briefs or comments, may be filed no 
later than 5 days after the deadline for submitting the case briefs. 
See 19 CFR 351.309(d). The Department requests that interested parties 
provide an executive summary of each argument contained within the case 
briefs and rebuttal briefs.
    Any interested party may request a hearing within 30 days of 
publication of these preliminary results. See 19 CFR 351.310(c). 
Requests should contain the following information: (1) The party's 
name, address, and telephone number; (2) the number of participants; 
and (3) a list of the issues to be discussed. Oral presentations will 
be limited to issues raised in the briefs. If we receive a request for 
a hearing, we plan to hold the hearing seven days after the deadline 
for submission of the rebuttal briefs at the U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230.
    The Department intends to issue the final results of this new 
shipper review, which will include the results of its analysis raised 
in any such comments, within 90 days of publication of these 
preliminary results, pursuant to section 751(a)(2)(B)(iv) of the Act.

Cash-Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of the final results of this new shipper review for all 
shipments of subject merchandise from Nhat Duc entered, or withdrawn 
from warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) For subject 
merchandise produced and exported by Nhat Duc, the cash deposit rate 
will continue to be the Vietnam-wide rate (i.e., 25.76 percent; (2) for 
subject merchandise exported by Nhat Duc but not manufactured by Nhat 
Duc, the cash deposit rate will continue to be the Vietnam-wide rate 
(i.e., 25.76 percent); and (3) for subject merchandise manufactured by 
Nhat Duc, but exported by any other party, the cash deposit rate will 
be the rate applicable to the exporter. These cash deposit 
requirements, when imposed, shall remain in effect until further 
notice.

Notification to Importers

    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this POR. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the

[[Page 3448]]

subsequent assessment of double antidumping duties.
    We are issuing and publishing this determination in accordance with 
sections 751(a)(2)(B) and 777(i) of the Act, and 19 CFR 351.214(h) and 
351.221(b)(4).

    Dated: January 12, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-1070 Filed 1-20-10; 8:45 am]
BILLING CODE 3510-DS-P