E9-24536. Certain Frozen Warmwater Shrimp From Thailand: Final Results of Antidumping Duty Changed Circumstances Review and Notice of Revocation in Part

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

DATES:

Effective Date: October 13, 2009.

SUMMARY:

On August 5, 2009, the Department of Commerce (the Department) published a notice of preliminary results of changed circumstances review of the antidumping duty order on frozen warmwater shrimp (shrimp) from Thailand. In that notice, we preliminarily determined that it was appropriate to treat the Rubicon Group inclusive of Phatthana Frozen Food Co., Ltd. (PFF) and Sea Wealth Frozen Food Co., Ltd. (Sea Wealth) as the successor-in-interest to the Rubicon Group as it operated during the period of investigation (POI) of the less-than-fair-value (LTFV) investigation. Further, we preliminarily determined that it was appropriate to revoke PFF and Sea Wealth from the antidumping duty order on shrimp from Thailand, effective as of January 16, 2009. See Certain Frozen Warmwater Shrimp From Thailand: Preliminary Results of Antidumping Duty Changed Circumstances Review and Notice of Intent to Revoke in Part, 74 FR 39042 (Aug. 5, 2009) (Preliminary Results). For these final results the Department continues to find that the current form of the Rubicon Group, inclusive of PFF and Sea Wealth, is the successor-in-interest to the Rubicon Group as it operated during the LTFV investigation. Accordingly, we are revoking PFF and Sea Wealth from the antidumping duty order on shrimp from Thailand, effective as of January 16, 2009.

FOR FURTHER INFORMATION CONTACT:

Henry Almond; AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

On February 1, 2005, the Department published in the Federal Register an antidumping duty order on certain frozen warmwater shrimp from Thailand. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From Thailand, 70 FR 5145 (Feb. 1, 2005) (Thai Shrimp Order).

Subsequent to the issuance of this order, the Thai Government challenged before the World Trade Organization (WTO) the Department's practice of not offsetting dumped sales with non-dumped sales in the LTFV investigation of shrimp from Thailand. In February 2008, the WTO dispute settlement panel found that the Department acted inconsistently with its international obligations when it performed average-to-average comparisons without providing offsets for comparisons where the export price was greater than normal value in the LTFV investigation. See United States—Measures Relating to Shrimp from Thailand, WT/DS343/R (February 29, 2008).

In November 2008, the Department initiated a section 129 proceeding to implement the findings of the WTO panel, and in January 2009 it issued a final determination in that proceeding which resulted in the revocation of the order related to shrimp produced and exported by two entities—Thai I-Mei and the Rubicon Group. See Implementation of the Findings of the WTO Panel in United States—Antidumping Measure on Shrimp From Thailand: Notice of Determination Under section 129 of the Uruguay Round Agreements Act and Partial Revocation of the Antidumping Duty Order on Frozen Warmwater Shrimp From Thailand, 74 FR 5638, 5638 (Jan. 30, 2009) (Section 129 Implementation). For purposes of the section 129 Implementation, the Department defined the Rubicon Group as consisting of the following nine companies, which were the group members existing at the time of the LTFV investigation: Andaman Seafood Co., Ltd., Chanthaburi Frozen Food Co., Ltd., Chanthaburi Seafoods Co., Ltd., Intersia Foods Co., Ltd., Phatthana Seafood Co., Ltd., S.C.C. Frozen Seafood Co., Ltd., Thailand Fishery Cold Storage Public Co., Ltd., Thai International Seafoods Co., Ltd., and Wales & Co. Universe Limited. See section 129 Implementation at 5639.

On February 5, 2009, the Rubicon Group requested that the Department conduct an expedited changed circumstances review under 19 CFR 351.221(c)(3)(iii) to consider also revoking PFF and Sea Wealth from the Thai Shrimp Order. According to the Rubicon Group, although these two companies were not included in the Department's margin calculations in the LTFV investigation, the Department has treated them as part of the Rubicon Group in subsequent segments of this proceeding. In this request, the Rubicon Group also asked that any revocation for PFF and Sea Wealth be made effective January 16, 2009, the effective date of the section 129 Implementation.

On March 24, 2009, the Department published a notice of initiation of a changed circumstances review to consider the Rubicon Group's request. See Certain Frozen Warmwater Shrimp from Thailand: Initiation of Antidumping Duty Changed Circumstances Review, 74 FR 12308 (Mar. 24, 2009) (Initiation Notice).

On August 5, 2009, the Department published the preliminary results of the changed circumstances review, where we preliminarily determined that it was appropriate to treat the Rubicon Group inclusive of PFF and Sea Wealth as the successor-in-interest to the Rubicon Group as it operated during LTFV investigation. Further, we preliminarily determined that it was appropriate to revoke PFF and Sea Wealth from the antidumping duty order on shrimp from Thailand. See Preliminary Results at 39044. Subsequent to the Preliminary Results we received no comments from interested parties.

Scope of the Order

The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off,^[1] deveined or not deveined, cooked or raw, or otherwise processed in frozen form.

The frozen warmwater shrimp and prawn products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTSUS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size. The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (Penaeus vannemei), banana prawn (Penaeus merguiensis), fleshy prawn (Penaeus chinensis), giant river prawn (Macrobrachium rosenbergii), giant tiger prawn (Penaeus monodon), redspotted shrimp (Penaeus brasiliensis), southern brown shrimp (Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern rough shrimp (Trachypenaeus curvirostris), southern white shrimp (Penaeus schmitti), blue shrimp (Penaeus stylirostris), western white shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus indicus).

Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this order. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this order.

Excluded from the scope are: (1) Breaded shrimp and prawns (HTSUS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the Pandalidae family and commonly referred to as coldwater shrimp, in any state of processing; (3) fresh shrimp and prawns whether shell-on or peeled (HTSUS subheadings 0306.23.00.20 and 0306.23.00.40); (4) shrimp and prawns in prepared meals (HTSUS subheading 1605.20.05.10); (5) dried shrimp and 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.

Final Results of Changed Circumstances Review

For the reasons stated in the preliminary results, the Department continues to find that the Rubicon Group in its current form, including PFF and Sea Wealth, is the successor-in-interest to the Rubicon Group as it existed during the POI of the LTFV investigation. Therefore, consistent with our preliminary results, we have revoked PFF and Sea Wealth from the Thai Shrimp Order, effective January 16, 2009 (the effective date of the section 129 Implementation). This revocation applies to merchandise produced by any Rubicon Group member and exported by PFF or Sea Wealth, as well as to merchandise produced by PFF or Sea Wealth and exported by any other Rubicon Group member.

Notification

We will instruct U.S. Customs and Border Protection (CBP) to terminate the suspension of liquidation for all shipments of frozen warmwater shrimp produced and exported by PFF or Sea Wealth, either singly or in combination with any other Rubicon Group member. Further, the Department will instruct CBP to liquidate without regard to antidumping duties (release all bonds and refund all cash deposits) entries of frozen warmwater shrimp produced and exported by these entities, entered, or withdrawn from warehouse, for consumption on or after January 16, 2009.

This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.306. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

We are issuing and publishing this notice in accordance with sections 751(b)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.216.

Dated: October 6, 2009.

Ronald K. Lorentzen,

Acting Assistant Secretary for Import Administration.

Footnotes

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