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Notice

Certain Frozen Warmwater Shrimp from Ecuador: Final Results and Partial Rescission of Antidumping Duty Administrative Review

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Information about this document as published in the Federal Register.

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On March 6, 2008, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from Ecuador. This review covers 43 producers/exporters of the subject merchandise to the United States. The period of review (POR) is February 1, 2006, through January 31, 2007. We are rescinding the review with respect to one company because this company made no shipments of the subject merchandise during the POR.

Based on our analysis of the comments received, we have made certain changes in the margin calculations for Promarisco S.A., one of the producer/exporters selected for individual review. Therefore, the final results for Promarisco S.A. differ from the preliminary results. We have made no changes to the margin calculation of OceanInvest S.A., the other producer/exporter selected for individual review. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.”

EFFECTIVE DATE:

July 11, 2008.

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FOR FURTHER INFORMATION CONTACT:

David Goldberger or Gemal Brangman, AD/CVD Operations, Office 2, Import Administration-Room 1117, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-3773, respectively.

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SUPPLEMENTARY INFORMATION:

Background

This review covers 43 producers/exporters.1 The respondents which the Department selected for individual review are OceanInvest, S.A. (OceanInvest) and Promarisco, S.A. (Promarisco). The respondents which were not selected for individual review are listed in the “Final Results of Review” section of this notice.

On March 6, 2008, the Department published in the Federal Register the preliminary results of administrative review of the antidumping duty order on shrimp from Ecuador. See Certain Frozen Warmwater Shrimp from Ecuador: Preliminary Results and Preliminary Partial Rescission of Antidumping Duty Administrative Review, 73 FR 12115 (March 6, 2008) (Preliminary Results). We invited parties to comment on those preliminary results. In April 2008, we received case briefs from the petitioner (the Ad Hoc Shrimp Trade Action Committee), the Louisiana Shrimp Alliance (an interested party in the proceeding), OceanInvest, and Promarisco, and rebuttal briefs from the petitioner, OceanInvest, and Promarisco.

The Department has conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).

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,2 deveined or not deveined, cooked or raw, or otherwise processed in frozen form.

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 Start Printed Page 39946shrimp (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 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.

Period of Review

The POR is February 1, 2006, through January 31, 2007.

Partial Rescission of Review

As discussed in the Preliminary Results, the Department received a no-shipment response from Exportadora del Oceano Pacifico OCEANPAC (Oceanpac) for which there appeared to be U.S. customs entries of subject merchandise. We requested data on the relevant entries from U.S. Customs and Border Protection (CBP) and determined that the entries were not reportable transactions for Oceanpac. See Memorandum to the File entitled “Reconciliation of Respondent No Shipment Statements to CBP Data,” dated February 6, 2008. Under these circumstances, we determine that Oceanpac satisfies the requirement under 19 CFR 351.213(d)(3) that it did not have “entries, exports, or sales of the subject merchandise,” and, consistent with the Department's practice, we are rescinding the review with respect to Oceanpac. See, e.g., Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination to Revoke in Part, 70 FR 67665, 67666 (November 8, 2005).

Cost of Production

As discussed in the Preliminary Results, we conducted a review to determine whether OceanInvest and Promarisco made third country sales of the foreign like product during the POR at prices below their costs of production (COP) within the meaning of section 773(b)(1) of the Act. For Promarisco, we performed the cost test for these final results following the same methodology as in the Preliminary Results, except as discussed in the decision memorandum accompanying this notice (the Decision Memo). For OceanInvest, we made no changes to the Preliminary Results calculation.

We found 20 percent or more of each respondent's sales of a given product during the reporting period were at prices less than the weighted-average COP for this period. Thus, we determined that these below-cost sales were made in “substantial quantities” within an extended period of time and at prices which did not permit the recovery of all costs within a reasonable period of time in the normal course of trade. See Sections 773(b)(2)(B) - (D) of the Act.

Therefore, for purposes of these final results, we find that OceanInvest and Promarisco made below-cost sales not in the ordinary course of trade. Consequently, we disregarded these sales for each respondent and used the remaining sales as the basis for determining normal value pursuant to section 773(b)(1) of the Act.

Analysis of Comments Received

All issues raised in the case briefs by parties to this administrative review, and to which we have responded, are listed in the Appendix to this notice and addressed in the Decision Memo, which is adopted by this notice. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room 1117, of the main Department building.

In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov/​frn/​. The paper copy and electronic version of the Decision Memo are identical in content.

Changes Since the Preliminary Results

Based on our analysis of the comments received, we have made certain changes in the margin calculations for Promarisco. These changes are discussed in the relevant sections of the Decision Memo. We have made no changes to the margin calculations for OceanInvest.

Final Results of Review

We determine that the following weighted-average margin percentages exist for the period February 1, 2006, through January 31, 2007:

Manufacturer/ExporterPercent Margin
OceanInvest, S.A.0.64
Promarisco, S.A.0.46 (de minimis)

Review-Specific Average Rate Applicable to the Following Companies:3

Manufacturer/ExporterPercent Margin
Agrol, S.A.0.64
Alquimia Marina S.A.0.64
Comar Cia Ltda0.64
Dunci S.A.0.64
El Rosario S.A.0.64
Empacadora Bilbo Bilbosa0.64
Empacadora Del Pacifico S.A.0.64
Empacadora Dufer Cia. Ltda.0.64
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Empacadora Gran Mar S.A.(Empagran)0.64
Empacadora Nacional0.64
Empacadora y Exportadora Calvi Cia. Ltda.0.64
Emprede0.64
Estar C.A.0.64
Exporklore, S.A.0.64
Exportadora Del Oceano Oceanexa C.A.0.64
Gondi S.A.0.64
Industria Pesquera Santa Priscila S.A.0.64
Inepexa S.A.0.64
Jorge Luis Benitez Lopez0.64
Karpicorp S.A.0.64
Luis Loaiza Alvarez0.64
Mardex Cia. Ltda.0.64
Mariscos del Ecuador c. l. Marecuador0.64
Marines C.A.0.64
Natural Select S.A.0.64
Negocios Industriales0.64
Novapesca S.A.0.64
Oceanmundo S.A.0.64
Oceanpro0.64
Operadora y Procesadora de Productos Marinos S.A. (Omarsa)0.64
Oyerly S.A.0.64
Pacfish S.A.0.64
PCC Congelados & Frescos S.A.0.64
Pescazul S.A.0.64
Peslasa S.A.0.64
Phillips Seafood0.64
Procesadora del Rio Proriosa S.A.0.64
Promarosa Productos0.64
Sociedad Nacional de Galapagos C.A. (SONGA)0.64
Tolyp S.A.0.64
Transcity S.A.0.64

Assessment

The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries.

Regarding OceanInvest, for those sales where it reported the entered value of its U.S. sales, we have calculated importer-specific ad valorem duty assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales for that importer. For those sales where OceanInvest did not report the entered value of its U.S. sales, we have calculated customer-specific per-unit duty assessment rates by aggregating the total amount of antidumping duties calculated for the examined sales and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates are de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we have calculated importer-specific or customer-specific ad valorem ratios based on the estimated entered value.

Regarding Promarisco, because it reported the entered value of all of its U.S. sales, we have calculated an importer-specific ad valorem duty assessment rate based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales for that importer. We have calculated a single importer-specific assessment rate for Promarisco, consistent with our practice in the final results of the 2004 - 2006 administrative review (see Certain Frozen Warmwater Shrimp from Ecuador: Final Results of Antidumping Duty Administrative Review, 72 FR 52070 (September 12, 2007)). See also Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and Singapore: Final Results of the Antidumping Administrative Reviews, Rescission of Administrative Review in part, and Determination Not to Revoke Order in Part, 68 FR 35623 (June 16, 2003), and accompanying Issues and Decision Memorandum at Comment 9B; and Notice of Final Results of Antidumping Duty Administrative Review and Notice of Final Results of Antidumping Duty Changed Circumstances Review: Certain Softwood Lumber Products From Canada, 69 FR 75921 (December 20, 2004), and accompanying Issues and Decision Memorandum at Comment 13.

For the responsive companies which were not selected for individual review, we have calculated an assessment rate based on the weighted average of the margin rates calculated for the companies selected for individual review excluding any which are de minimis or determined entirely on AFA.

We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above de minimis (i.e., at or above 0.50 percent). Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is de minimis (i.e., less than 0.50 percent). See 19 CFR 351.106(c)(1). The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review.

The Department clarified its “automatic assessment” regulation on May 6, 2003. See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003) (Assessment Policy Notice). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know that the merchandise they sold to the intermediary (e.g., a reseller, trading company, or exporter) was destined for the United States. This clarification will also apply to POR entries of subject merchandise produced by companies for which we are rescinding the review based on certifications of no shipments, because these companies certified that they made no POR shipments of subject merchandise for which they had knowledge of U.S. destination. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate established in the LTFV investigation if there is no rate for the intermediary involved in the transaction. See Assessment Policy Notice for a full discussion of this clarification.

Discontinuation of Cash Deposit Requirements

On August 15, 2007, in accordance with sections 129(b)(4) and 129(c)(1)(B) of the Uruguay Round Agreements Act (URAA), the U.S. Trade Representative, after consulting with the Department and Congress, directed the Department to implement its determination to revoke the antidumping duty order on certain frozen warmwater shrimp from Ecuador. See Final Results of the Section 129 Determination of Certain Frozen Warmwater Shrimp from Ecuador, 72 FR 48257 (August 23, 2007). Accordingly, the antidumping duty order on certain frozen warmwater shrimp from Ecuador was revoked effective August 15, 2007. As a result, we have instructed CBP to discontinue collection of cash deposits of antidumping duties on entries of the subject merchandise.

Notification to Importers

This notice serves as a final 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 review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

Notification to Interested Parties

This notice serves as the only reminder to parties subject to administrative protective order (APO) of Start Printed Page 39948their 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 these final results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

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Dated: July 3, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.

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Appendix - Issues in Decision Memorandum

General Comments:

Comment 1: “Zeroing” Methodology in Administrative Reviews

Comment 2: Selection of Mandatory Respondents

Company-Specific Comments:

Promarisco

Comment 3: Adjustment to Promarisco's Net Financial Expense Ratio

Comment 4: Use of Entry Date for Determining Promarisco's POR Sales

OceanInvest

Comment 5: Cost Reporting for Certain Value-Added Products

Comment 6: Acceptance of Billing Adjustment for Certain Third-Country Sales

Comment 7: Bonus Payment Adjustment Applicable to U.S. Sales

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Footnotes

1.  This figure does not include those companies for which the Department is rescinding the administrative review. In the notice announcing the preliminary results, this figure was incorrectly reported as 45 companies.

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2.  “Tails” in this context means the tail fan, which includes the telson and the uropods.

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3.  This rate is based on the weighted average of the margins calculated for those companies selected for individual review, excluding de minimis margins or margins based entirely on adverse facts available (AFA).

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[FR Doc. E8-15830 Filed 7-10-08; 8:45 am]

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