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Notice

Certain Frozen Warmwater Shrimp from India: Preliminary Results of Antidumping Duty Administrative Review, Partial Rescission of Review, Notice of Intent to Rescind Review in Part, and Notice of Intent to Revoke Order in Part

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Start Preamble

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (Department) is conducting an administrative review of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from India with respect to 159 companies.1 The respondents which the Department selected for individual examination are Devi Sea Foods Limited (Devi), Falcon Marine Exports Limited (Falcon), and the Liberty Group.2 The respondents which were not selected for individual examination are listed in the “Preliminary Results of Review” section of this notice. This is the fourth Start Printed Page 12176administrative review of this order. The period of review (POR) is February 1, 2008, through January 31, 2009.

We preliminarily determine that sales made by Devi have not been made at below normal value (NV), while those made by Falcon and the Liberty Group have been made at below NV, and, therefore, are subject to antidumping duties. In addition, based on the preliminary results for the respondents selected for individual examination, we have preliminarily determined a margin for those companies that were not individually examined. Finally, we have also preliminarily determined to revoke the antidumping duty order with respect to shrimp from India produced and exported by Devi.

If the preliminary results are adopted in our final results of administrative review, we will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries. Interested parties are invited to comment on the preliminary results.

EFFECTIVE DATE:

March 15, 2010.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

Henry Almond or Blaine Wiltse, 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 or (202) 482-6345, respectively.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Background

In February 2005, the Department published in the Federal Register an antidumping duty order on certain frozen warmwater shrimp from India. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from India, 70 FR 5147 (Feb. 1, 2005) (Shrimp Order). On February 4, 2009, the Department published in the Federal Register a notice of opportunity to request an administrative review of the antidumping duty order of certain frozen warmwater shrimp from India for the period February 1, 2008, through January 31, 2009. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 74 FR 6013 (Feb. 4, 2009). In response to timely requests from interested parties pursuant to 19 CFR 351.213(b)(1) and (2) to conduct an administrative review of the U.S. sales of shrimp by numerous Indian producers/exporters, the Department published a notice of initiation of administrative review for 332 companies. See Certain Frozen Warmwater Shrimp From Brazil, India and Thailand: Notice of Initiation of Administrative Reviews, 74 FR 15699 (Apr. 7, 2009) (Initiation Notice).

In the Initiation Notice, we indicated that the Department would select mandatory respondents for individual examination based upon CBP entry data, and that we would limit the respondents selected for individual examination in accordance with section 777A(c)(2) of the Tariff Act of 1930, as amended (the Act). See Initiation Notice, 74 FR at 15708. In April 2009, we received comments on the issue of respondent selection from the Marine Products Export Development Authority, the Seafood Exporters Association of India, and the Embassy of India, as well as from Devi, Falcon, the Domestic Processors,3 and the petitioner.4

In April and May 2009, we received statements from 46 companies that indicated that they had no shipments of subject merchandise to the United States during the POR. During these months, we also received requests from the petitioner and Domestic Processors requesting that the Department determine whether antidumping duties had been absorbed by the respondents that were to be required to participate in this review.

In May 2009, after considering the resources available to the Department, we determined that it was not practicable to examine all exporters/producers of subject merchandise for which a review was requested. See Memorandum to James Maeder, Director, Office 2, AD/CVD Operations, from Holly Phelps, Analyst, Office 2, AD/CVD Operations, entitled: “2008-2009 Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from India: Selection of Respondents for Individual Review,” dated May 13, 2009 (Respondent Selection Memo). As a result, we selected the three largest producers/exporters of certain frozen warmwater shrimp from India during the POR (i.e., Devi, Falcon, and the Liberty Group) for individual examination in this segment of the proceeding. Accordingly, we issued the antidumping duty questionnaire to these companies on May 14, 2009.

In June and July 2009, we received responses from Devi, Falcon, and the Liberty Group to section A (i.e., the section related to general information), sections B and C (i.e., the sections covering comparison market and U.S. sales, respectively), and section D (i.e., the section covering cost of production (COP)) of the questionnaire. Also in July 2009, the petitioner withdrew its requests for review of 144 companies, in accordance with 19 CFR 351.213(d)(1), and we issued a supplemental questionnaire to the Liberty Group regarding the products sold in its third country markets.

In August and September 2009, we issued supplemental sales and cost questionnaires to each respondent, and Devi and the Liberty Group responded to these questionnaires. Also, in September 2009, the Department requested that Devi submit proof that its unaffiliated purchasers paid the antidumping duties assessed on its POR entries in order to determine whether duty absorption occurred.

On October 20, 2009, the Department extended the preliminary results in the current review to no later than March 1, 2010. See Certain Frozen Warmwater Shrimp From India and Thailand: Notice of Extension of Time Limits for the Preliminary Results of the Fourth Administrative Reviews, 74 FR 53700 (Oct. 20, 2009).

From October through December 2009, the Department issued additional supplemental sales questionnaires to Devi and Falcon, as well as a supplemental cost questionnaire to Devi. Also, in these months each of the respondents submitted responses to each of the Department's outstanding requests for information, and Devi responded to the Department's duty absorption inquiry. From December 9 through 11, 2009, the Department verified the U.S. sales data reported by Devi's U.S. affiliate, Devi Seafoods, Inc. (Devi Inc.).

In January 2010, the Department issued a second supplemental sales questionnaire and a third supplemental cost questionnaire to the Liberty Group, and the Liberty Group responded to these questionnaires.

In February 2010, the Department verified the sales data reported by Devi in India and selected Japan as the appropriate third country comparison market for both Falcon and the Liberty Group. See the Memorandum to James Maeder, Director, Office 2, AD/CVD Operations, from Holly Phelps, Analyst, Office 2, AD/CVD Operations, entitled, “2008-2009 Antidumping Duty Administrative Review on Certain Frozen Warmwater Shrimp from India - Selection of the Appropriate Third Country Market for Falcon Marine Exports Limited,” dated February 26, 2010 (Third Country Market Memo). Start Printed Page 12177Also in this month, Falcon and the Liberty Group submitted updated sales information at the Department's request. In March 2010, the Department plans to verify the cost data reported by Devi in India.

As explained in the memorandum from the Deputy Assistant Secretary for Import Administration, the Department has exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from February 5, through February 12, 2010. Thus, all deadlines in this segment of the proceeding have been extended by seven days. The revised deadline for the preliminary results of this review is now March 8, 2010. See Memorandum to the Record from Ronald Lorentzen, DAS for Import Administration, regarding “Tolling of Administrative Deadlines As a Result of the Government Closure During the Recent Snowstorm,” dated February 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,5 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 shrimp (Penaeus brasiliensis), southern brown shrimp (Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern rough shrimp (Trachypenaeus curvirostri s), 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 ten 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.

Partial Rescission of Review

On July 6, 2009, the petitioner withdrew its requests for an administrative review for each of the following 133 companies within the time limits set forth in 19 CFR 351.213(d)(1):

1) A.S. Marine Industries Pvt Ltd.

2) Adani Exports Ltd

3) Aditya Udyog

4) Agri Marine Exports Ltd.

5) AL Mustafa Exp & Imp

6) Alapatt Marine Exports

7) All Seas Marine P. Ltd.

8) Alsa Marine & Harvests Ltd.

9) Ameena Enterprises

10) Amison Foods Ltd.

11) Amison Seafoods Ltd.

12) Anjani Marine Traders

13) Aqua Star Marine Foods

14) Arsha Seafood Exports Pvt. Ltd.

15) ASF Seafoods

16) Ashwini Frozen Foods

17) Aswin Associates

18) Balaji Seafood Exports I Ltd.

19) Bell Foods (Marine Division)

20) Bharat Seafoods

21) Bhisti Exports

22) Bilal Fish Suppliers

23) Capital Freezing Complex

24) Cham Exports Ltd.

25) Cham Ocean Treasures Co., Ltd.

26) Cham Trading Organization

27) Chand International

28) Cherukattu Industries (Marine Div.)

29) Danda Fisheries

30) Dariapur Aquatic Pvt. Ltd.

31) Deepmala Marine Exports

32) Dhanamjaya Impex P. Ltd.

33) Dorothy Foods

34) El-Te Marine Products

35) Excel Ice Services/Chirag Int'l

36) Firoz & Company

37) Freeze Engineering Industries (Pvt. Ltd.)

38) Gajula Exim P. Ltd.

39) Gausia Cold Storage P. Ltd.

40) Global Sea Foods & Hotel Ltd.

41) Goan Bounty

42) Gold Farm Foods (P) Ltd.

43) Golden Star Cold Storage

44) Gopal Seafoods

45) Gtc Global Ltd.

46) HA & R Enterprises

47) Hanswati Exports P. Ltd.

48) HMG Industries Ltd.

49) Honest Frozen Food Company

50) India CMS Adani Exports

51) India Seafoods

52) Indian Seafood Corporation

53) Interfish

54) InterSea Exports Corporation

55) J R K Seafoods Pvt. Ltd.

56) Kaushalya Aqua Marine Product Exports Pvt. Ltd.

57) Keshodwala Foods

58) Key Foods

59) King Fish Industries

60) Konkan Fisheries Pvt. Ltd.

61) Lakshmi Marine Products

62) Lansea Foods Pvt. Ltd.

63) Laxmi Narayan Exports

64) Lotus Sea Farms

65) M K Exports

66) M. R. H. Trading Company

67) Malabar Marine ExportsStart Printed Page 12178

68) Mamta Cold Storage

69) Marina Marine Exports

70) Marine Food Packers

71) Miki Exports International

72) Mumbai Kamgar MGSM Ltd.

73) N.C. Das & Company

74) Naik Ice & Cold Storage

75) Nas Fisheries Pvt. Ltd.

76) National Seafoods Company

77) National Steel

78) National Steel & Agro Ind.

79) New Royal Frozen Foods

80) Noble Aqua Pvt. Ltd.

81) Nsil Exports

82) Omsons Marines Ltd.

83) Padmaja Exports

84) Partytime Ice Pvt. Ltd.

85) Philips Foods India Pvt. Ltd.

86) R K Ice & Cold Storage

87) R F. Exports

88) Rahul Foods (GOA)

89) Rahul International

90) Raj International

91) Ramalmgeswara Proteins & Foods Ltd.

92) Rameshwar Cold Storage

93) Ravi Frozen Foods Ltd.

94) Regent Marine Industries

95) Relish Foods

96) Royal Link Exports

97) Rubian Exports

98) Ruby Marine Foods

99) Ruchi Worldwide

100) S K Exports (P) Ltd.

101) SS International

102) Sabri Food Products

103) Salet Seafoods Pvt Ltd.

104) Samrat Middle East Exports (P) Ltd.

105) Sarveshwari Ice & Cold Storage P Ltd.

106) Satyam Marine Exports

107) Sea Rose Marines (P) Ltd.

108) Sealand Fisheries Ltd.

109) Seaperl Industries

110) Sharat Industries Ltd.

111) Shimpo Exports

112) Shipper Exporter National Steel

113) Siddiq Seafoods

114) Skyfish

115) SLS Exports Pvt. Ltd.

116) Sonia Fisheries

117) Sourab

118) Sreevas Export Enterprises

119) Sri Sidhi Freezers & Exporters Pvt. Ltd.

120) Star Fish Exports

121) Supreme Exports

122) The Canning Industries (Cochin) Ltd.

123) Torry Harris Seafoods Pvt. Ltd.

124) Tri Marine Foods Pvt. Ltd.

125) Trinity Exports

126) Tri-Tee Seafood Company

127) Ulka Seafoods (P) Ltd.

128) Upasana Exports

129) V Marine Exports

130) Varnita Cold Storage

131) Vijayalaxmi Seafoods

132) Winner Seafoods

133) Z A Food Products

Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an administrative review if a party that requested a review withdraws the request within 90 days of the date of publication of the notice of initiation. The petitioner's requests for administrative review were timely withdrawn for all 133 companies listed above, in accordance with 19 CFR 351.213 (d)(1). Therefore, because no other interested party requested a review for these companies, in accordance with 19 CFR 351.213(d)(1), the Department is rescinding this review on 133 of the companies for which the request for administrative review was withdrawn.6

Notice of Intent to Rescind Review in Part

Furthermore, in accordance with 19 CFR 351.213(d)(3), we preliminarily intend to rescind the review in part with respect to the following 35 companies because these companies7 certified that they had no shipments or sales of subject merchandise during the POR:

1) Abad Fisheries

2) Allanna Frozen Foods Pvt. Ltd.

3) Allansons Ltd.

4) Amulya Sea Foods

5) Anjaneya Seafoods

6) Baby Marine (Eastern) Exports

7) Baby Marine Exports

8) Baby Marine International

9) Baby Marine Products

10) Baby Marine Sarass

11) Baraka Overseas Traders

12) Blue Water Foods & Exports P. Ltd.

13) BMR Exports

14) Coreline Exports

15) Frigerio Conserva Allana Ltd.

16) G A Randerian Ltd.

17) G.K S Business Associates Pvt. Ltd.

18) Hiravata Ice & Cold Storage

19) Hiravati Exports Pvt. Ltd.

20) Hiravati International Pvt. Ltd. (located at Jawar Naka, Porbandar, Gujarat, 360 575, India)

21) Indian Aquatic Products

22) Innovative Foods Limited

23) Interseas

24) K R M Marine Exports Ltd.

25) K V Marine Exports

26) Kalyanee Marine

27) L. G Seafoods

28) Lewis Natural Foods Ltd.

29) Libran Cold Storages (P) Ltd.

30) Lourde Exports

31) Sanchita Marine Products P Ltd

32) Silver Seafood

33) Sterling Foods

34) Veejay Impex

35) Veraval Marines & Chemicals P Ltd.

We reviewed CBP data and confirmed that there were no entries of subject merchandise exported by any of these companies. Consequently, in accordance with 19 CFR 351.213(d)(3) and consistent with our practice, we preliminarily intend to rescind our review for the 35 companies listed above. See e.g., Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Preliminary Results, Preliminary Partial Rescission and Request for Revocation, In Part, of the Third Administrative Review, 74 FR 10009, 10011 (Mar. 9, 2009), unchanged in C ertain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 74 FR 47191 (Sept. 15, 2009); see also Certain Frozen Warmwater Shrimp from India: Partial Rescission of Antidumping Duty Administrative Review, 73 FR 77610 (Dec. 19, 2008).

Additionally, the Department initiated separate administrative reviews for the following companies with the same name but different addresses: 1) Devi Fisheries Limited; 2) Premier Marine Products; 3) Ram's Assorted Cold Storage Ltd.; 4) Satya Sea Foods Pvt. Limited; and 5) Usha Sea Foods. Specifically, these are companies for which we initiated multiple administrative reviews because the petitioner and/or the respondent listed separate addresses for the same company in their review requests. See Initiation Notice, 74 FR at 15700-15704. The Department sent letters asking for clarification of the multiple addresses and same company names. We received Start Printed Page 12179responses from the companies listed above verifying the correct addresses and indicating that the company names have been duplicated. Therefore, the Department is also preliminarily rescinding the review with respect to these duplicate company names (i.e., these companies will be included in the current administrative review only once).

Finally, the Department also initiated separate administrative reviews for Calcutta Seafoods and Calcutta Seafoods Pvt. Ltd., two companies with the same address but different names. Subsequently, we received information from Calcutta Seafoods Pvt. Ltd. demonstrating that Calcutta Seafoods no longer exists, and that this entity is currently doing business as Calcutta Seafoods Pvt. Ltd. Consequently, we are also preliminarily rescinding our review with respect to Calcutta Seafoods, in accordance with our practice. See AR2 Rescission Notice, 73 FR at 6127.

Notice of Intent To Revoke Order, in Part

As noted above, on February 27, 2009, Devi requested revocation of the antidumping duty order with respect to its sales of subject merchandise, pursuant to 19 CFR 352.672(e). This request was accompanied by certifications, pursuant to 19 CFR 352.672(e)(1) that: 1) Devi has sold the subject merchandise at not less than NV during the current POR and that it will not sell the merchandise at less than NV in the future; and 2) Devi sold subject merchandise to the United States in commercial quantities for a period of at least three consecutive years. Devi also agreed to immediate reinstatement of the antidumping duty order, as long as any exporter or producer is subject to the order, if the Department concludes that, subsequent to its revocation, it sold the subject merchandise at less than NV.

Pursuant to section 751(d) of the Act, the Department “may revoke, in whole or in part” an antidumping duty order upon completion of a review under section 751(a) of the Act. In determining whether to revoke an antidumping duty order in part, the Department considers: 1) whether the company in question has sold subject merchandise at not less than NV for a period of at least three consecutive years; 2) whether the company has agreed in writing to its immediate reinstatement in the order, as long as any exporter or producer is subject to the order, if the Department concludes that the company, subsequent to revocation, sold the subject merchandise at less than NV; and 3) whether the continued application of the antidumping duty order is otherwise necessary to offset dumping. See 19 CFR 352.672(b)(2)(i); see also Certain Steel Concrete Reinforcing Bars From Turkey; Final Results of Antidumping Duty Administrative Review and New Shipper Review and Determination To Revoke in Part, 72 FR 62630, 62631 (Nov. 6, 2007). If, based on these criteria, the Department determines that the antidumping order as to that company is no longer warranted, pursuant to section 751(d) of the Act and 19 CFR 352.672(b)(2)(ii), the Department will revoke the order as it applies to that company.

We have preliminarily determined that the request from Devi meets all of the criteria under 19 CFR 352.672(e)(1). Our preliminary margin calculation confirms that Devi sold shrimp at not less than NV during the current review period. See the “Preliminary Results of the Review” section below. In addition, we have confirmed that Devi sold shrimp at not less than NV in the two previous administrative reviews in which it was individually examined (i.e., its dumping margins were de minimis). See Certain Frozen Warmwater Shrimp from India: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 74 FR 33409, 33411 (July 13, 2009) (2007-2008 Final Results); see also Certain Frozen Warmwater Shrimp from India: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 73 FR 40492, 40495 (July 15, 2008) (2006-2007 Final Results).

Based on our examination of the sales data submitted by Devi, we preliminarily determine that it sold the subject merchandise in the United States in commercial quantities in each of the consecutive years cited by Devi to support its request for revocation. See the Memorandum to the File, from Henry Almond, Analyst, Office 2, AD/CVD Operations, entitled, “Analysis of Commercial Quantities for Devi Sea Foods Limited's Request for Revocation,” dated March 8, 2010. Thus, we preliminarily find that Devi had de minimis dumping margins for its last three administrative reviews and sold subject merchandise in commercial quantities in each of these years. Also, we preliminarily determine, pursuant to section 751(d) of the Act and 19 CFR 351.222(b)(2), that the application of the antidumping duty order with respect to Devi is no longer warranted for the following reasons: 1) the company had a zero or de minimis margin for a period of at least three consecutive years; 2) the company has agreed to immediate reinstatement of the order if the Department finds that it has resumed making sales at less than NV; and, 3) the continued application of the order is not otherwise necessary to offset dumping. Therefore, we preliminarily determine that subject merchandise produced and exported by Devi qualifies for revocation from the antidumping duty order on frozen warmwater shrimp from India and that the order with respect to such merchandise should be revoked. If these preliminary findings are affirmed in our final results, we will revoke this order, in part, with respect to shrimp produced and exported by Devi and, in accordance with 19 CFR 351.222(f)(3), terminate the suspension of liquidation for any of the merchandise in question that is entered, or withdrawn from warehouse, for consumption on or after February 1, 2009, and instruct CBP to release any cash deposits for such entries.

Duty Absorption

On April 21, 2009, and May 7, 2009, the petitioner and the Domestic Processors, respectively, requested that the Department determine whether antidumping duties had been absorbed during the POR. Section 751(a)(4) of the Act directs the Department, if requested, to determine during an administrative review initiated two or four years after the publication of the order, whether antidumping duties have been absorbed by a foreign producer or exporter, if the subject merchandise is sold in the United States through an affiliated importer. In the current review, only one of the three respondents, Devi, sold to the United States through an importer that is affiliated within the meaning of section 751 (a)(4) of the Act.

Section 351.213(j)(1) of the Department's regulations provides that during any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping order, the Department will conduct a duty absorption review, if requested by a domestic interested party. The current administrative review was initiated four years after the publication of the Shrimp Order and the request was timely submitted to the Department by domestic interested parties. Accordingly, we are able to make a duty absorption determination in this segment of the proceeding.

In determining whether the antidumping duties have been absorbed by the respondents during the POR, we examine the antidumping duties calculated in the administrative review in which the absorbtion inquiry is requested. See 19 CFR 351.213(j)(3). The Department presumes that the duties Start Printed Page 12180will be absorbed for those sales that have been made at less than NV. This presumption can be rebutted with evidence (e.g., an enforceable agreement between the affiliated importer and unaffiliated purchaser) that the unaffiliated purchaser will pay the full duty ultimately assessed on the subject merchandise. See, e.g., Certain Stainless Steel Butt-Weld Pipe Fittings from Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Notice of Intent to Rescind, 70 FR 39735, 39737 (July 11, 2005).

On September 24, 2009, we issued a letter to Devi requesting proof that the company's unaffiliated purchasers would ultimately pay the antidumping duties to be assessed on entries during the POR. On October 9, 2009, Devi submitted a letter to the Department stating that it had zero antidumping duties in the previous two administrative reviews and it anticipated that the Department will determine it had a zero or de minimis antidumping duty margin during the current POR, and therefore, there will be no antidumping duties to absorb.

Our preliminary margin calculation shows that Devi sold shrimp at not less than NV during the current POR. See the “Preliminary Results of the Review” section below. Therefore, consistent with the Department's finding in Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan: Final Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Reviews, 65 FR 7492, 7494 (Feb. 15, 2000), we preliminarily find that there is no duty absorption applicable to Devi's U.S. sales because we have preliminarily determined that there is no dumping margin with respect to Devi's U.S. sales during the current administrative review.

Comparisons to Normal Value

To determine whether sales of shrimp from India to the United States were made at less than NV, we compared the export price (EP) or constructed export price (CEP) to the NV, as described in the “Constructed Export Price/Export Price” and “Normal Value” sections of this notice.

Pursuant to sections 773(a)(1)(B)(i) and 777A(d)(2) of the Act, for Devi, Falcon, and the Liberty Group, we compared the EPs or CEPs of individual U.S. transactions, as applicable, to the weighted-average NV of the foreign like product in the appropriate corresponding calendar month where there were sales made in the ordinary course of trade, as discussed in the “Cost of Production Analysis” section below.

Product Comparisons

In accordance with section 771(16)(A) of the Act, we considered all products produced by Devi, Falcon, and the Liberty Group covered by the description in the “Scope of the Order” section, above, to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. Pursuant to 19 CFR 351.414(e)(2), we compared U.S. sales of non-broken shrimp to sales of non-broken shrimp made in the third country market within the contemporaneous window period, which extends from three months prior to the month of the first U.S. sale until two months after the month of the last U.S. sale. Where a respondent reported sales of broken shrimp in only its comparison market, we disregarded these sales because we found they were not comparable to products sold in the United States.

Where there were no sales of identical merchandise in the comparison market made in the ordinary course of trade to compare to U.S. sales, according to section 771(16)(B) of the Act, we compared U.S. sales to sales of the most similar foreign like product made in the ordinary course of trade. In making the product comparisons, we matched foreign like products based on the physical characteristics reported by Devi, Falcon, and the Liberty Group in the following order: cooked form, head status, count size, organic certification, shell status, vein status, tail status, other shrimp preparation, frozen form, flavoring, container weight, presentation, species, and preservative. Where there were no sales of identical or similar merchandise, we made product comparisons using constructed value (CV), as discussed in the “Calculation of Normal Value Based on Constructed Value” section below. See section 773(a)(4) of the Act.

Constructed Export Price/Export Price

For all U.S. sales made by Falcon and the Liberty Group, and for certain U.S. sales made by Devi, we used EP methodology, in accordance with section 772(a) of the Act, because the subject merchandise was sold by the producer/exporter outside of the United States directly to the first unaffiliated purchaser in the United States prior to importation and CEP methodology was not otherwise warranted based on the facts of record.

For the remaining U.S. sales made by Devi, we calculated CEP in accordance with section 772(b) of the Act because the subject merchandise was sold for the account of this company by its subsidiary in the United States to unaffiliated purchasers. We revised the data reported by Devi to take into account minor corrections found at verification.

A. Devi

We based EP on packed prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price for discounts in accordance with 19 CFR 351.401(c). We also made deductions from the starting price for foreign inland freight expenses, export inspection agency (EIA) fees, foreign brokerage and handling expenses, various foreign miscellaneous shipment charges, international freight expenses, terminal handling charges, marine insurance expenses, U.S. customs duties (including harbor maintenance fees and merchandise processing fees), U.S. brokerage and handling expenses, U.S. warehousing expenses, and U.S. inland freight expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act.

In accordance with section 772(b) of the Act, we calculated CEP for those sales where the merchandise was first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter, or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter. We based CEP on the packed delivered prices to unaffiliated purchasers in the United States. Where appropriate, we made adjustments for discounts in accordance with 19 CFR 351.401(c). We made deductions for movement expenses, in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight expenses, EIA fees, foreign brokerage and handling expenses, various foreign miscellaneous shipment charges, international freight expenses, terminal handling charges, marine insurance expenses, U.S. customs duties (including harbor maintenance fees and merchandise processing fees), U.S. brokerage and handling expenses, U.S. inland freight expenses (including both freight from port to warehouse and freight from warehouse to the customer), and U.S. warehousing expenses.

In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (i.e., imputed credit expenses, repacking Start Printed Page 12181expenses, and other direct selling expenses), sales and marketing allowance expenditures, and indirect selling expenses (including inventory carrying costs and other indirect selling expenses).

Pursuant to section 772(d)(3) of the Act, we further reduced the starting price by an amount for profit to arrive at CEP. In accordance with section 772(f) of the Act, we calculated the CEP profit rate using the expenses incurred by Devi and its U.S. affiliate on their sales of the subject merchandise in the United States and the profit associated with those sales.

B. Falcon

We based EP on packed prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price for discounts in accordance with 19 CFR 351.401(c). We also made deductions from the starting price for cold storage expenses, loading and unloading expenses, trailer hire expenses, foreign inland freight expenses, port charges, export survey charges, terminal handling charges, other miscellaneous shipment charges, foreign brokerage and handling expenses, international freight expenses, marine insurance expenses, U.S. customs duties (including harbor maintenance fees and merchandise processing fees), and U.S. brokerage and handling expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act.

C. Liberty Group

We based EP on packed prices to the first unaffiliated purchaser in the United States. Where appropriate, we made deductions from the starting price for discounts in accordance with 19 CFR 351.401(c). We made deductions from the starting price for cold storage charges, inland freight expenses, other shipment and movement expenses, foreign brokerage and handling expenses, international freight expenses, terminal handling charges, U.S. customs duties, and U.S. brokerage and handling expenses, where appropriate, in accordance with section 772(c)(2)(A) of the Act.

Normal Value

A. Home Market Viability and Selection of Comparison Markets

In order to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act.

We determined that the aggregate volume of home market sales of the foreign like product for each of the respondents was insufficient to permit a proper comparison with U.S. sales of the subject merchandise. For Devi, we used Canada as the comparison market because this was Devi's only viable comparison market during the POR. For Falcon and the Liberty Group, we selected Japan as the comparison market because, among other things, these companies' sales of foreign like product in Japan were the most similar to the subject merchandise. For further discussion, see the Third Country Market Memo. Therefore, as the basis for comparison market sales, we used sales to Canada for Devi, and sales to Japan for Falcon and the Liberty Group, in accordance with section 773(a)(1)(C) of the Act and 19 CFR 351.404.

B. Level of Trade

Section 773(a)(1)(B)(i) of the Act states that, to the extent practicable, the Department will calculate NV based on sales at the same level of trade (LOT) as the EP or CEP. Sales are made at different LOTs if they are made at different marketing stages (or their equivalent). See 19 CFR 351.412(c)(2). Substantial differences in selling activities are a necessary, but not sufficient, condition for determining that there is a difference in the stages of marketing. Id; see also Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate From South Africa, 62 FR 61731, 61732 (Nov. 19, 1997) (Plate from South Africa). In order to determine whether the comparison market sales were at different stages in the marketing process than the U.S. sales, we reviewed the distribution system in each market (i.e., the chain of distribution), including selling functions, class of customer (customer category), and the level of selling expenses for each type of sale.

Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs for EP and comparison market sales (i.e., NV based on either home market or third country prices),8 we consider the starting prices before any adjustments. For CEP sales, we consider only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Act. See Micron Tech., Inc. v. United States, 243 F.3d 1301, 1314-16 (Fed. Cir. 2001).

When the Department is unable to match U.S. sales of the foreign like product in the comparison market at the same LOT as the EP or CEP, the Department may compare the U.S. sale to sales at a different LOT in the comparison market. In comparing EP or CEP sales at a different LOT in the comparison market, where available data make it possible, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales only, if the NV LOT is at a more advanced stage of distribution than the LOT of the CEP and there is no basis for determining whether the difference in LOTs between NV and CEP affects price comparability (i.e., no LOT adjustment was possible), the Department shall grant a CEP offset, as provided in section 773(a)(7)(B) of the Act. See, e.g., Plate from South Africa, 62 FR at 61732-33.

In this administrative review, we obtained information from each respondent regarding the marketing stages involved in making the reported foreign market and U.S. sales, including a description of the selling activities performed by each respondent for each channel of distribution. Company-specific LOT findings are summarized below.

1. Devi

Devi reported that it made sales through two channels of distribution in the United States (i.e., EP sales made directly to unaffiliated customers and CEP sales via an affiliated reseller); however, it stated that the selling activities it performed and the relative level of intensity of each selling activity did not vary by channel of distribution. Devi reported performing the following selling functions for its U.S. sales: sales planning, personnel training, sales promotion, packing, inventory maintenance in India, handling of sales inquiries, order processing, freight and delivery services (including pre-shipment inspection, foreign transportation, and export customs clearance), extension of credit to U.S. customers, providing discounts and rebates, and providing post-sale warranties and guarantees. These selling activities can be generally grouped into four selling function categories for analysis: 1) sales and marketing; 2) freight and delivery; 3) inventory maintenance and warehousing; and, 4) warranty and technical support. Accordingly, based on the selling function categories, we find that Devi performed sales and marketing, freight and delivery services, inventory maintenance and warehousing, and Start Printed Page 12182warranty and technical support for all U.S. sales. Because Devi's selling activities did not vary by distribution channel, we preliminarily determine that there is one LOT in the U.S. market.

With respect to Canada, Devi reported that it made sales through a single channel of distribution (i.e., sales made directly to unaffiliated customers) and that all selling functions were performed at the same levels of intensity as in the U.S. market. We examined the selling activities performed for third country sales and found that Devi performed the following selling functions: sales planning, personnel training, sales promotion, packing, inventory maintenance in India, handling of sales inquiries, order processing, freight and delivery services (including pre-shipment inspection and foreign transportation), extension of credit to Canadian customers, and providing post-sale warranties and guarantees. Accordingly, based on these selling functions noted above, we find that Devi performed sales and marketing, freight and delivery services, inventory maintenance and warehousing, and warranty and technical services for third country sales. Because all third country sales are made through a single distribution channel and the selling activities to Devi's customers did not vary within this channel, we preliminarily determine that there is one LOT in the third country market for Devi.

Finally, we compared the U.S. LOT to the third country market LOT and found that the selling functions performed for U.S. and third country market customers do not differ, as Devi performed the same selling functions at the same relative level of intensity in both markets. Therefore, we determine that sales to the U.S. and third country markets during the POR were made at the same LOT, and as a result, no LOT adjustment or CEP offset is warranted.

2. Falcon

Falcon reported that it made EP sales in the U.S. market to trading companies and distributors. We examined the selling activities performed for U.S. sales and found that Falcon performed the following selling functions: customer contact and price negotiation; order processing; arranging for freight and the provision of customs clearance/brokerage services (in India and the United States); cold storage and inventory maintenance; quality-assurance-related activities; and banking-related activities. These selling activities can be generally grouped into four selling function categories for analysis: 1) sales and marketing; 2) freight and delivery; 3) inventory maintenance and warehousing; and 4) warranty and technical support. Accordingly, based on the selling function categories, we find that Falcon performed sales and marketing, freight and delivery services, and inventory maintenance and warehousing for U.S. sales. Because all sales in the United States are made through a single distribution channel (i.e., direct sales to unaffiliated customers) and the selling activities to Falcon's customers did not vary within this channel, we preliminarily determine that there is one LOT in the U.S. market.

With respect to the third country market, Falcon reported that it made sales to trading companies and that all selling functions were performed at the same levels of intensity as in the U.S. market. We examined the selling activities performed for third country sales, and found that Falcon performed the following selling functions: customer contact and price negotiation; order processing; arranging for freight and the provision of customs clearance/brokerage services (in India); cold storage and inventory maintenance; quality-assurance-related activities; and banking-related activities. Accordingly, based on these selling functions noted above, we find that Falcon performed sales and marketing, freight and delivery services, and inventory maintenance and warehousing for all third country sales. Because all third country sales are made through a single distribution channel and the selling activities to Falcon's customers did not vary within this channel, we preliminarily determine that there is one LOT in the third country market for Falcon.

Finally, we compared the EP LOT to the third country market LOT and found that the selling functions performed for U.S. and third country market customers do not differ, as Falcon performed the same selling functions at the same relative level of intensity in both markets. Therefore, we determine that sales to the U.S. and third country markets during the POR were made at the same LOT, and as a result, no LOT adjustment is warranted.

3. Liberty Group

The Liberty Group reported that it made EP sales in the U.S. market to trading companies. We examined the selling activities performed for this channel and found that the Liberty Group performed the following selling functions: customer contact and price negotiation; order processing; arranging for freight and the provision of customs clearance/ brokerage services; cold storage and inventory maintenance; quality assurance related activities; and banking-related activities. These selling activities can be generally grouped into four selling function categories for analysis: 1) sales and marketing; 2) freight and delivery; 3) inventory maintenance and warehousing; and 4) warranty and technical support. Accordingly, based on the selling function categories noted above, we find that the Liberty Group performed sales and marketing, freight and delivery services, and inventory maintenance and warehousing for U.S. sales. Because all U.S. sales are made through a single distribution channel and the selling activities to the Liberty Group's customers did not vary within this channel, we preliminarily determine that there is one LOT in the U.S. market.

With respect to the third country market, the Liberty Group reported that it made sales to trading companies. We examined the selling activities performed for third country sales, and found that the Liberty Group performed the following selling functions: customer contact and price negotiation; order processing; arranging for freight and the provision of customs clearance/brokerage services; cold storage and inventory maintenance; quality assurance related activities; and banking-related activities. Accordingly, based on these selling functions noted above, we find that the Liberty Group performed sales and marketing, freight and delivery services, and inventory maintenance and warehousing for third country sales. Because all third country sales are made through a single distribution channel and the selling activities to the Liberty Group's customers did not vary within this channel, we preliminarily determine that there is one LOT in the third country market for the Liberty Group.

Finally, we compared the EP LOT to the third country market LOT and found that the selling functions performed for U.S. and third country market customers do not differ. Therefore, we determined that sales to the U.S. and third country markets during the POR were made at the same LOT, and as a result, no LOT adjustment was warranted.

C. Cost of Production Analysis

We found that Devi, Falcon, and the Liberty Group made sales in the same comparison markets below the COP in the most recently completed segment of this proceeding, as of the date of initiation of this review, in which each respondent was examined, and such sales were disregarded. See 2006-2007 Final Results, 73 FR at 40495 (finding Start Printed Page 12183that Devi and Falcon made below-cost sales); see also Certain Frozen Warmwater Shrimp from India: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 72 FR 52055, 52058 (Sept. 12, 2007) (finding that the Liberty Group made below-cost sales). Thus, in accordance with section 773(b)(2)(A)(ii) of the Act, there are reasonable grounds to believe or suspect that Devi, Falcon, and the Liberty Group made sales in the third country market at prices below the cost of producing the merchandise in the current review period.

1. Calculation of Cost of Production

In accordance with section 773(b)(3) of the Act, we calculated the respondents' COPs based on the sum of their costs of materials and conversion for the foreign like product, plus amounts for G&A expenses and interest expenses (see “Test of Comparison Market Sales Prices” section, below, for treatment of third country selling expenses).

The Department relied on the COP data submitted by each respondent in its most recently submitted cost database for the COP calculation, except for the following instances:

a. Devi:

i. We adjusted Devi's reported G&A expenses to include a gain on the sale of assets and income from sales of shrimp waste; and

ii. Devi reported a negative financial expense rate. In accordance with the Department's practice, we have adjusted Devi's reported financial expense rate to set it to zero. See Certain Steel Concrete Reinforcing Bars From Turkey; Preliminary Results and Preliminary Partial Rescission of Antidumping Duty Administrative Review, 74 FR 20911, 20913 (May 6, 2009), unchanged in Certain Steel Concrete Reinforcing Bars From Turkey; Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 74 FR 45611 (Sept. 3, 2009).

For further discussion of these adjustments, see the memorandum from Frederick W. Mines, Accountant, to Neal M. Halper, Director, Office of Accounting, entitled, “Cost of Production and Constructed Value Calculation Adjustments for the Preliminary Results - Devi Sea Foods Limited,” dated March 8, 2010.

b. Liberty Group:

Because the Liberty Group failed to report cost data for one product, the Department has preliminary determined to apply facts available for this COP, pursuant to section 776(a)(2)(A) and (B) of the Act. As partial facts available, we have used the cost of the next most similar product produced during the POR as a surrogate for the missing COP information. See Memorandum to the File, from Holly Phelps, Analyst, Office 2, AD/CVD Operations, entitled, “Calculation Adjustments for Devi Marine Food Exports Private Limited, Kader Exports Private Limited, Kader Investment and Trading Company Private Limited, Liberty Frozen Foods Private Limited, Liberty Oil Mills Ltd., Premier Marine Products, and Universal Cold Storage (Collectively, “the Liberty Group”) for the Preliminary Results in the 2008-2009 Administrative Review of Certain Frozen Warmwater Shrimp from India,” dated March 8, 2010 (Liberty Group Sales Calculation Memo).

2. Test of Comparison Market Sales Prices

On a product-specific basis, we compared the adjusted weighted-average COP to the comparison market sales prices of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used COP exclusive of selling and packing expenses. The prices (inclusive of billing adjustments, where appropriate) were exclusive of any applicable movement charges, discounts, direct and indirect selling expenses and packing expenses.

3. Results of the COP Test

In determining whether to disregard third country sales made at prices below the COP, we examined, in accordance with sections 773(b)(1)(A) and (B) of the Act: 1) whether, within an extended period of time, such sales were made in substantial quantities; and 2) whether such sales were made at prices which permitted the recovery of all costs within a reasonable period of time in the normal course of trade. In accordance with section 773(b)(2)(C)(i) of the Act, where less than 20 percent of the respondent's third country sales of a given product are at prices less than the COP, we do not disregard any below-cost sales of that product because we determine that in such instances the below-cost sales were not made within an extended period of time and in “substantial quantities.” Where 20 percent or more of a respondent's sales of a given product are at prices less than the COP, we disregard the below-cost sales when: 1) they were made within an extended period of time in “substantial quantities,” in accordance with sections 773(b)(2)(B) and (C) of the Act; and 2) based on our comparison of prices to the weighted-average COPs for the POR, they were at prices which would not permit the recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act.

We found that, for certain products, more than 20 percent of Devi's, Falcon's, and the Liberty Group's third country sales were at prices less than the COP and, in addition, such sales did not provide for the recovery of costs within a reasonable period of time. We therefore excluded these sales and used the remaining sales as the basis for determining NV, in accordance with section 773(b)(1) of the Act.

For those U.S. sales of subject merchandise for which there were no third country sales in the ordinary course of trade, we compared CEPs or EPs, as appropriate, to CV in accordance with section 773(a)(4) of the Act. See “Calculation of Normal Value Based on Constructed Value” section below.

D. Calculation of Normal Value Based on Comparison Market Prices

1. Devi

For Devi, we calculated NV based on delivered prices to unaffiliated customers in Canada. We made adjustments to the starting price, where appropriate, for discounts in accordance with 19 CFR 351.401(c). We also made deductions for foreign inland freight expenses, foreign brokerage and handling expenses, various foreign miscellaneous shipment charges and international freight expenses (including terminal handling charges) under section 773(a)(6)(B) of the Act.

For comparisons to EP sales, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for direct selling expenses (including bank charges, Export Credit Guarantee Corporation (ECGC) fees, EIA fees, imputed credit expenses, and other direct selling expenses), and commissions. Because commissions were paid only in the comparison market, we made an upward adjustment to NV for the lesser of: 1) the amount of commission paid in the comparison market; or 2) the amount of indirect selling expenses incurred in the U.S. market. See 19 CFR 351.410(e).

For comparisons to CEP sales, in accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, we deducted from NV direct selling expenses (i.e., imputed credit expenses and other direct selling expenses), commissions, sales and marketing allowance expenditures, and indirect Start Printed Page 12184selling expenses (including inventory carrying costs and other indirect selling expenses). Because commissions were paid only in the comparison market, we made an upward adjustment to NV for the lesser of: 1) the amount of commission paid in the comparison market; or 2) the amount of indirect selling expenses incurred in the U.S. market. See 19 CFR 351.410(e).

For all price-to-price comparisons, we made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We also deducted third country packing costs and added U.S. packing costs in accordance with sections 773(a)(6)(A) and (B) of the Act.

2. Falcon

We based NV for Falcon on prices to unaffiliated customers in Japan. We made adjustments, where appropriate, to the starting price for discounts in accordance with 19 CFR 351.401(c). We also made deductions, where appropriate, from the starting price for cold storage expenses, loading and unloading expenses, trailer hire expenses, foreign inland freight expenses, port charges, export survey charges, terminal and handling charges, foreign miscellaneous shipment charges, foreign brokerage and handling expenses, and international freight expenses, under section 773(a)(6)(B)(ii) of the Act.

In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for commissions, imputed credit expenses, bank fees, EIA fees, ECGC premiums, outside inspection/lab expenses, letter of credit amendment charges, and other miscellaneous selling expenses. For Falcon's U.S. sales for which it had not yet received payment, we recalculated U.S. credit expenses using the date February 25, 2010, as the date of payment because this was the date of Falcon's last submission on the record that contained payment date information. We also recalculated Falcon's third country and U.S. credit expenses to use the simple average of the POR U.S. Federal Reserve interest rates, as well as to base the expense on gross unit price net of discounts. For further discussion, see the Memorandum to the File, from Blaine Wiltse, Analyst, Office 2, AD/CVD Operations, entitled, “Calculation Adjustments for Falcon Marine Exports Limited for the Preliminary Results,” dated March 8, 2010. Finally, where commissions were granted in the U.S. market but not in the comparison market, we made a downward adjustment to NV for the lesser of: 1) the amount of commission paid in the U.S. market; or 2) the amount of indirect selling expenses (including inventory carrying costs) incurred in the comparison market. See 19 CFR 351.410(e). If commissions were granted in the comparison market but not in the U.S. market, we made an upward adjustment to NV following the same methodology. Id.

We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We also deducted third country packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act.

3. Liberty Group

We based NV for the Liberty Group on prices to unaffiliated customers in Japan. We made deductions, where appropriate, from the starting price for inland freight expenses from the plant to the port, other shipment and movement expenses, clearing and forwarding agency charges, shipment-related expenses, cold storage charges, international freight expenses, and terminal handling charges, under section 773(a)(6)(B)(ii) of the Act.

In addition, we made adjustments under section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in circumstances of sale for commissions, credit expenses, bank fees, EIA inspection fees, and outside inspection/lab expenses. We recalculated the Liberty Group's third country and U.S. credit expenses to use the simple average of the POR U.S. Federal Reserve interest rates. For further discussion, see the Liberty Group Sales Calculation Memo. Finally, where commissions were granted in the U.S. market but not in the comparison market, we made a downward adjustment to NV for the lesser of: 1) the amount of commission paid in the U.S. market; or 2) the amount of indirect selling expenses (including inventory carrying costs) incurred in the comparison market. See 19 CFR 351.410(e). If commissions were granted in the comparison market but not in the U.S. market, we made an upward adjustment to NV following the same methodology. Id. We recalculated indirect selling expenses to include a sales write-off recognized in the company's financial statements. For further discussion, see the Liberty Group Sales Calculation Memo.

We made adjustments for differences in costs attributable to differences in the physical characteristics of the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We also deducted third country packing costs and added U.S. packing costs, in accordance with section 773(a)(6)(A) and (B) of the Act.

E. Calculation of Normal Value Based on Constructed Value

Section 773(a)(4) of the Act provides that where NV cannot be based on comparison market sales, NV may be based on CV. Accordingly, for those shrimp products for which we could not determine the NV based on comparison market sales because all sales of the comparable products failed the COP test, we based NV on CV.

Section 773(e) of the Act provides that CV shall be based on the sum of the cost of materials and fabrication for the imported merchandise, plus amounts for selling, general, and administrative (SG&A) expenses, profit, and U.S. packing costs. For each respondent, we calculated the cost of materials and fabrication based on the methodology described in the “Cost of Production Analysis” section, above. We based SG&A and profit for each respondent on the actual amounts incurred and realized by it in connection with the production and sale of the foreign like product in the ordinary course of trade for consumption in the comparison market, in accordance with section 773(e)(2)(A) of the Act.

We made adjustments to CV for differences in circumstances of sale in accordance with section 773(a)(6)(iii) and (a)(8) of the Act and 19 CFR 351.410. For comparisons to EP, we made circumstance-of-sale adjustments by deducting direct selling expenses incurred on comparison market sales from, and adding U.S. direct selling expenses to, CV. See 19 CFR 351.410(c). For comparisons to Devi's CEP, we deducted comparison market direct selling expenses from CV. Id. We also made adjustments for Falcon and the Liberty Group, when applicable, for comparison market indirect selling expenses to offset U.S. commissions in EP comparisons. See 19 CFR 351.410(e).

Currency Conversion

We made currency conversions into U.S. dollars for all spot transactions by Devi, Falcon, and the Liberty Group in accordance with section 773A of the Act and 19 CFR 351.415, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank. In addition, both Devi and Falcon reported that they purchased forward exchange contracts which were used to convert their sales prices into Start Printed Page 12185home market currency. Under 19 CFR 351.415(b), if a currency transaction on forward markets is directly linked to an export sale under consideration, the Department is directed to use the exchange rate specified with respect to such currency in the forward sale agreement to convert the foreign currency. See 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, 69 FR 76916 (Dec. 23, 2004) and accompanying Issues and Decision Memorandum at Comment 6; see also Certain Frozen Warmwater Shrimp from India: Preliminary Results and Preliminary Partial Rescission of Antidumping Duty Administrative Review, 74 FR 9991, 9998 (Mar. 9, 2009), unchanged in 2007-2008 Final Results. Therefore, for Devi and Falcon we used the reported forward exchange rates for currency conversions where applicable.

Preliminary Results of the Review

We preliminarily determine that weighted-average dumping margins exist for the respondents for the period February 1, 2008, through January 31, 2009, as follows:

Manufacturer/ExporterPercent Margin
Devi Sea Foods Limited0.38 (de minimis)
Falcon Marine Exports Limited/KR Enterprises0.89
Liberty Group (Devi Marine Food Exports Private Limited/4.44
Kader Exports Private Limited/Kader Investment and Trading
Company Private Limited/Liberty Frozen Foods Pvt. Ltd./
Liberty Oil Mills Ltd./Premier Marine Products/Universal Cold
Storage Private Limited)

Review-Specific Average Rate Applicable to the Following Companies:9

Manufacturer/ExporterPercent Margin
Accelerated Freeze-Drying Co.2.67
AMI Enterprises2.67
Anand Aqua Exports2.67
Ananda Aqua Exports (P) Ltd./Ananda Foods/2.67
Ananda Aqua Applications
Andaman Seafoods Pvt. Ltd.2.67
Angelique Intl2.67
Apex Exports2.67
Asvini Exports2.67
Asvini Fisheries Private Limited2.67
Avanti Feeds Limited2.67
Ayshwarya Seafood Private Limited2.67
Bhatsons Aquatic Products2.67
Bhavani Seafoods2.67
Bijaya Marine Products2.67
Bluefin Enterprises2.67
Bluepark Seafoods Pvt. Ltd.2.67
Britto Exports2.67
C P Aquaculture (India) Ltd.2.67
Calcutta Seafoods Pvt. Ltd.2.67
Capithan Exporting Co.2.67
Castlerock Fisheries Ltd.2.67
Chemmeens (Regd)2.67
Choice Canning Company2.67
Choice Trading Corporation Private Limited2.67
Coastal Corporation Ltd.2.67
Cochin Frozen Food Exports Pvt. Ltd.2.67
Corlim Marine Exports Pvt. Ltd.2.67
Devi Fisheries Limited2.67
Digha Seafood Exports2.67
Esmario Export Enterprises2.67
Exporter Coreline Exports2.67
Five Star Marine Exports Private Limited2.67
Forstar Frozen Foods Pvt. Ltd.2.67
Frontline Exports Pvt. Ltd.2.67
Gadre Marine Exports2.67
Galaxy Maritech Exports P. Ltd.2.67
Gayatri Seafoods2.67
Geo Aquatic Products (P) Ltd.2.67
Geo Seafoods2.67
Goodwill Enterprises2.67
Start Printed Page 12186
Grandtrust Overseas (P) Ltd.2.67
GVR Exports Pvt. Ltd.2.67
Haripriya Marine Export Pvt. Ltd.2.67
HIC ABF Special Foods Pvt. Ltd.2.67
Hindustan Lever, Ltd.2.67
IFB Agro Industries Limited2.67
Indo Aquatics2.67
International Freezefish Exports2.67
ITC Limited, International Business2.67
ITC Ltd.2.67
Jagadeesh Marine Exports2.67
Jaya Satya Marine Exports2.67
Jaya Satya Marine Exports Pvt. Ltd.2.67
Jayalakshmi Sea Foods Private Limited2.67
Jinny Marine Traders2.67
Jiya Packagings2.67
Kanch Ghar.2.67
Kay Kay Exports2.67
Kings Marine Products2.67
Koluthara Exports Ltd.2.67
Konark Aquatics & Exports Pvt. Ltd.2.67
Magnum Estate Private Limited2.67
Magnum Export2.67
Magnum Sea Foods Pvt. Ltd.2.67
Malabar Arabian Fisheries2.67
Malnad Exports Pvt. Ltd.2.67
Mangala Marine Exim India Private Ltd.2.67
Mangala Sea Products2.67
Meenaxi Fisheries Pvt. Ltd.2.67
MSC Marine Exporters2.67
MTR Foods2.67
Naga Hanuman Fish Packers2.67
Naik Frozen Foods2.67
Naik Seafoods Ltd.2.67
Navayuga Exports2.67
Navayuga Exports Ltd.2.67
Nekkanti Sea Foods Limited2.67
NGR Aqua International2.67
Nila Sea Foods Pvt. Ltd.2.67
Overseas Marine Export2.67
Paragon Sea Foods Pvt. Ltd.2.67
Penver Products (P) Ltd.2.67
Pijikay International Exports P Ltd.2.67
Pisces Seafood International2.67
Premier Exports International2.67
Premier Marine Foods2.67
Premier Seafoods Exim (P) Ltd.2.67
Raa Systems Pvt. Ltd.2.67
Raju Exports2.67
Ram's Assorted Cold Storage Ltd.2.67
Raunaq Ice & Cold Storage2.67
Raysons Aquatics Pvt. Ltd.2.67
Razban Seafoods Ltd.2.67
RBT Exports2.67
Riviera Exports Pvt. Ltd.2.67
Rohi Marine Private Ltd.2.67
RVR Marine Products Private Limited2.67
S A Exports2.67
S Chanchala Combines2.67
S & S Seafoods2.67
Safa Enterprises2.67
Sagar Foods2.67
Sagar Grandhi Exports Pvt. Ltd.2.67
Sagar Samrat Seafoods2.67
Sagarvihar Fisheries Pvt. Ltd.2.67
Sai Marine Exports Pvt. Ltd.2.67
Sai Sea Foods2.67
Sandhya Aqua Exports2.67
Sandhya Aqua Exports Pvt. Ltd.2.67
Sandhya Marines Limited2.67
Santhi Fisheries & Exports Ltd.2.67
Satya Seafoods Private Limited2.67
Sawant Food Products2.67
Seagold Overseas Pvt. Ltd.2.67
Start Printed Page 12187
Selvam Exports Private Limited2.67
Shippers Exports2.67
Shroff Processed Food & Cold ZStorage P Ltd.2.67
Sita Marine Exports2.67
Sprint Exports Pvt. Ltd.2.67
Sri Chandrakantha Marine Exports, Ltd.2.67
Sri Sakkthi Cold Storage2.67
Sri Sakthi Marine Products P Ltd.2.67
Sri Satya Marine Exports2.67
Sri Venkata Padmavathi Marine Foods Pvt. Ltd.2.67
SSF Ltd.2.67
Star Agro Marine Exports Private Limited2.67
Sun Bio-Technology Ltd.2.67
Suryamitra Exim (P) Ltd.2.67
Suvarna Rekha Exports Private Limited2.67
Suvarna Rekha Marines P Ltd.2.67
TBR Exports Pvt Ltd.2.67
Teekay Marine P. Ltd2.67
Tejaswani Enterprises2.67
The Kadalkanny Group (Kadalkanny Frozen Foods, Edhayam2.67
Frozen Foods Pvt. Ltd., Diamond Seafoods Exports, and
Theva & Company)
The Waterbase Limited2.67
Triveni Fisheries P Ltd.2.67
Uniroyal Marine Exports Ltd.2.67
Usha Seafoods2.67
V.S Exim Pvt Ltd.2.67
Vaibhav Sea Foods2.67
Victoria Marine & Agro Exports Ltd.2.67
Vinner Marine2.67
Vishal Exports2.67
Wellcome Fisheries Limited2.67

Disclosure and Public Hearing

The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice. See 19 CFR 352.674(b). Pursuant to 19 CFR 351.309(c), interested parties may submit cases briefs not later than the later of 30 days after the date of publication of this notice, or one week after the issuance of the cost verification report for Devi. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs. See 19 CFR 351.309(d). Parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: 1) a statement of the issue; 2) a brief summary of the argument; and 3) a table of authorities. See 19 CFR 351.309(c)(2) and (d)(2).

Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration, Room 1870, within 30 days of the date of publication of this notice. Requests should contain: 1) the party's name, address and telephone number; 2) the number of participants; and 3) a list of issues to be discussed. Id. Issues raised in the hearing will be limited to those raised in the respective case briefs. Id. The Department will issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Act.

Assessment Rates

Upon completion of the administrative review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212(b)(1). The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP 15 days after the date of publication of the final results of this review.

For Devi, Falcon, and the Liberty Group, we will calculate 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 sales. See 19 CFR 351.212(b)(1). For the companies which were not selected for individual review, we will calculate an assessment rate based on the simple average of the cash deposit 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. 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. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable. See 751(a)(2)(C) of the Act.

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. In such instances, we will instruct CBP to Start Printed Page 12188liquidate unreviewed entries at the all-others rate if there is no rate for the intermediary involved in the transaction. See Assessment Policy Notice for a full discussion of this clarification.

Cash Deposit Requirements

The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: 1) the cash deposit rate for each specific company listed above will be that established in the final results of this review, except if the rate is less than 0.50 percent and, therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; 2) for previously reviewed or investigated companies not participating in this review, the cash deposit rate will continue to be the company-specific rate published for the most recent period; 3) if the exporter is not a firm covered in this review, or the original less-than-fair-value (LTFV) investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and 4) the cash deposit rate for all other manufacturers or exporters will continue to be 10.17 percent, the all-others rate made effective by the LTFV investigation. See Shrimp Order, 70 FR at 5148. These deposit requirements, when imposed, shall remain in effect until further notice.

Notification to Importers

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) 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.

This administrative review and notice are published in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 352.671(b)(4).

Start Signature

Dated: March 8, 2010.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

End Signature End Supplemental Information

Footnotes

1.  This figure does not include those companies for which the Department is rescinding the administrative review.

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2.  The Liberty Group consists of the following companies: Devi Marine Food Exports Private Limited, Kader Exports Private Limited, Kader Investment and Trading Company Private Limited, Liberty Frozen Foods Private Limited, Liberty Oil Mills Ltd., Premier Marine Products, and Universal Cold Storage Private Limited (collectively, “Liberty Group”).

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3.  The Domestic Processors consist of the American Shrimp Processors Association and the Louisiana Shrimp Association.

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4.  The petitioner is the Ad Hoc Shrimp Trade Action Committee.

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

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6.  In addition to the 133 companies noted above, the petitioner also withdrew its request for administrative review for the following 11 companies: 1) Baby Marine (Eastern) Exports, 2) Baby Marine Exports, 3) Baby Marine Products, 4) Baraka Overseas Traders, 5) Gajula Exim P. Ltd., 6) Kadalkanny Frozen Foods, 7) Premier Exports International, 8) Premier Marine Foods, 9) Sagar Samrat Seafoods, 10) Uniroyal Marine Exports Ltd., and 11) Vaibhav Sea Foods. However, there are outstanding review requests from other interested parties for each of these companies. Therefore, the review cannot be rescinded with respect to these companies based on the petitioner's withdrawal of its request for review. Nonetheless, pursuant to 19 CFR 351.213(d)(3), we are preliminarily rescinding the review for the first five companies listed above because they reported that they had no shipments of subject merchandise during the POR. See below for further discussion.

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7.  The Department also received statements of no shipment form the following three companies: Diamond Seafood Exports, Edhayam Frozen Foods Pvt. Ltd., and Theva & Company. However, the Department collapsed the members of the Kadalkanny Group, which consists of these three companies and Kadalkanny Frozen Foods. See Certain Frozen Warmwater Shrimp from India: Partial rescission of Ntidumping Duty Administrative Review, 73 FR 6125, 6126 (Feb. 1, 2008) (AR2 Rescission Notice). Therefore, because there remains an outstanding request for review for Kadalkanny Frozen Foods, we are not rescinding the review for the Kadalkanny Group collectively, or these three companies individually.

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8.  Where NV is based on CV, we determine the NV LOT based on the LOT of the sales from which we derive selling expenses, general and administrative (G&A) expenses, and profit for CV, where possible.

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9.  This rate is based on the simple average of the margins calculation 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. 2010-5590 Filed 3-12-10; 8:45 am]

BILLING CODE 3510-DS-S