E5-373. Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Ecuador 1

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

EFFECTIVE DATE:

February 1, 2005.

FOR FURTHER INFORMATION CONTACT:

David J. Goldberger or Terre Keaton, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone], or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Amendment to Final Determination

In accordance with sections 735(a) and 777(i)(1) of the Tariff Act of 1930, as amended, (the Act), on December 23, 2004, the Department published its notice of final determination of sales at less than fair value (LTFV) in the investigation of certain frozen and canned warmwater shrimp (shrimp) from Ecuador. See Notice of Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp from Ecuador, 69 FR 76913 (Dec. 23, 2004) (Final Determination). On December 23, 2004, we received an allegation, timely filed pursuant to 19 CFR 351.224(c)(2), from the petitioners (i.e., Ad Hoc Shrimp Trade Action Committee, Versaggi Shrimp Corporation, and Indian Ridge Shrimp Company) that the Department made a ministerial error with respect to its exclusion of “dusted” shrimp from the scope if this investigation. On December 28, 2004, Eastern Fish Company, Inc., and Long John Silver's Inc., interested parties in this investigation, submitted a response to the petitioners' December 23, 2004, ministerial error allegation. In addition, on December 30, 2004, we received allegations, timely filed pursuant to 19 CFR 351.224(c)(2), from the petitioners and the respondents (i.e., Exportadora de Alimentos S.A. and (Expalsa) and Promarisco S.A. (Promarisco)) that the Department also made ministerial errors in the final margin calculations.

On January 6, 2005, Exporklore S.A. (Exporklore) submitted rebuttal comments to the petitioners' December 30, 2004, ministerial error allegation. On January 10, 2005, the petitioners submitted rebuttal comments to Expalsa's allegations, and Expalsa submitted rebuttal comments to the petitioners' allegations.

After analyzing Expalsa's, Exporklore's, Promarisco's, and the petitioners' submissions, we have determined, in accordance with 19 CFR 351.224(e), that we made the following ministerial errors in our calculations performed for the final determination:

• We made a ministerial error by using the wrong packing expense variable for weight-averaging U.S. packing expenses in Expalsa's margin program;
• We made a typographical error in the computer programming language intended to exclude substandard merchandise in Expalsa's final determination comparison market and margin programs;
• We made a ministerial error in Expalsa's comparison market program by incorrectly applying the returned sales expenses to all Italian sales made after a certain date, rather than to sales made only to a specific customer after that date;
• We made a ministerial error in revising Expalsa's raw material costs for certain shrimp products by applying the wrong yield factors in our adjustments for these products, thereby overstating Expalsa's raw material costs;
• We made a typographical error in the computer programming language intended to exclude substandard merchandise in Exporklore's final determination comparison market and margin programs;
• We made a ministerial error with respect to the programming language used in the comparison market and margin calculation programs to revise the count-size ranges for certain shrimp products Exporklore sold to Italian and U.S. customers;
• We made a ministerial error by incorrectly inputting an invoice number in Exporklore's comparison market program for the purpose of correcting a billing adjustment;
• We made a ministerial error by transposing two computer variable names for weight-averaging constructed value selling expenses in the Promarisco comparison market program;
• We made a ministerial error in the programming language for re-allocating U.S. commission and brokerage handling expenses on certain U.S. sales in the Promarisco margin calculation program;
• We made a ministerial error in the programming language in the Promarisco comparison market and margin calculation programs for re-coding the count size for certain products.

Correcting these errors results in revised margins for Expalsa, Exporklore, and Promarisco. The revised margin for Expalsa is de minimis; therefore, shrimp produced by Expalsa is excluded from the order. In addition, we have revised the calculation of the “all others” rate accordingly.

For a detailed discussion of the ministerial errors alleged by the petitioners and the respondents, as well as the Department's analysis, see the January 24, 2005, memorandum to Louis Apple from the Team entitled “Ministerial Error Allegations in the Final Determination of the Antidumping Duty Investigation on Certain Frozen Warmwater Shrimp from Ecuador.”

Therefore, in accordance with 19 CFR 351.224(e), we are amending the final determination of sales at LTFV in the antidumping duty investigation of certain frozen warmwater shrimp from Ecuador. The revised weighted-average dumping margins are in the “Antidumping Duty Order” section, below.

Antidumping Duty Order

In accordance with section 735(a) of the Act, the Department made its final determination that certain frozen and canned warmwater shrimp from Ecuador is being, or is likely to be, sold in the United States at LTFV. See Final Determination. On January 21, 2005, the ITC notified the Department of its final determination pursuant to section 735(b)(1)(A)(I) of the Act that an industry in the United States is materially injured by reason of LTFV imports of subject merchandise from Ecuador. In its final determination, however, the ITC determined that two domestic like products exist for the merchandise covered by the Department's investigation:

1) certain non-canned warmwater shrimp and prawns; and 2) canned warmwater shrimp and prawns. The ITC determined pursuant to section 735(b)(1)(B) of the Act that imports of canned warmwater shrimp from Ecuador are negligible. Therefore, the ITC's affirmative determination of material injury covered all non-canned warmwater shrimp and prawns other than those specifically excluded in the “Scope of Order” section, below. Accordingly, the scope of the antidumping duty investigation has been amended as described above to reflect the ITC's distinction between certain non-canned warmwater shrimp and prawns and canned warmwater shrimp and prawns. Specifically, canned warmwater shrimp and prawns are excluded from the scope of the order.

In cases where the ITC specifically excludes a product in its final injury determination, the Department may exclude that product from its final margin calculation. See Antidumping Duty Orders; Certain Stainless Steel Plate in Coils From Belgium, Canada, Italy, the Republic of Korea, South Africa, and Taiwan, 64 FR 27756 (May 21, 1999). However, because the respondents did not export or sell canned warmwater shrimp and prawns to the United States during the period of investigation (POI), no recalculation of the dumping margins is warranted, and therefore we are not amending the final determination calculations to exclude any sales of canned warmwater shrimp and prawn products.

Therefore, in accordance with section 736(a)(1) of the Act, the Department will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by the Department, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price of the merchandise for all relevant entries of certain frozen warmwater shrimp from Ecuador, except for entries of merchandise produced by Expalsa. These antidumping duties will be assessed on all unliquidated entries of certain frozen warmwater shrimp from Ecuador, except for entries of Expalsa merchandise, entered, or withdrawn from the warehouse, for consumption on or after August 4, 2004, the date on which the Department published its Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Certain Frozen and Canned Warmwater Shrimp from Ecuador, (“Preliminary Determination”), 69 FR 47091 (August 4, 2004).

On or after the date of publication of this antidumping duty order in the Federal Register, CBP will require, at the same time that importers would normally deposit estimated duties on this merchandise, a cash deposit equal to the estimated weighted-average dumping margins as listed below. The “all others” rate applies to all exporters of subject merchandise not listed specifically. We determine that the following weighted-average margin percentages exist for the POI:

Manufacturer/exporter	Original Final Margin	Amended Final Margin
Exportadora de Alimentos S.A. (Expalsa)	2.62%	1.97% (de minimis)
Exporklore S.A. (Exporklore)	2.35%	2.48%
Promarisco S.A. (Promarisco)	4.48%	4.42%
All Others Rate	3.26%	3.58%

Scope of Order

The scope of this order includes certain warmwater shrimp and prawns, whether frozen, 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 under the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (HTS), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.

The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, whiteleg shrimp (Penaeus vannemei), banana prawn (Penaeus merguiensis), fleshy prawn (Penaeus chinensis), giant river prawn (Macrobrachium rosenbergii), giant tiger prawn (Penaeus monodon), redspotted shrimp (Penaeus brasiliensis), southern brown shrimp (Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern rough shrimp (Trachypenaeus curvirostris), southern white shrimp (Penaeus schmitti), blue shrimp (Penaeus stylirostris), western white shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus indicus).

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

Excluded from the scope are: 1) breaded shrimp and prawns (HTS subheading 1605.20.10.20); 2) shrimp and prawns generally classified in the Pandalidae family and commonly referred to as coldwater shrimp, in any state of processing; 3) fresh shrimp and prawns whether shell-on or peeled (HTS subheading 0306.23.00.20 and 0306.23.00.40); 4) shrimp and prawns in prepared meals (HTS subheading 1605.20.05.10); 5) dried shrimp and prawns; 6) canned warmwater shrimp and prawns (HTS subheading 1605.20.10.40); 7) certain dusted shrimp; and 8) certain battered shrimp. Dusted shrimp is a shrimp-based product: 1) that is produced from fresh (or thawed-from-frozen) and peeled shrimp; 2) to which a “dusting” layer of rice or wheat flour of at least 95 percent purity has been applied; 3) with the entire surface of the shrimp flesh thoroughly and evenly coated with the flour; 4) with the non-shrimp content of the end product constituting between four and 10 percent of the product's total weight after being dusted, but prior to being frozen; and 5) that is subjected to individually quick frozen (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 investigation are currently classified under the following HTS 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 HTS 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.

Continuation of Suspension of Liquidation

In accordance with section 735(c)(1)(B) of the Act, we are directing CBP to continue to suspend liquidation of all entries of certain frozen warmwater shrimp from Ecuador, except for entries of merchandise produced by Expalsa, which has a de minimis margin and thus is excluded from the antidumping duty order. CPB shall require a cash deposit equal to the estimated amount by which the normal value exceeds the U.S. price as indicated in the chart above. CBP shall discontinue the suspension of liquidation on canned shrimp products, as well as on frozen warmwater shrimp produced by Expalsa, and refund any cash deposits made or bonds posted with respect to this merchandise. These instructions suspending liquidation will remain in effect until further notice. This amended determination and order is issued and published pursuant to sections 735(d), 736(a) of the Act, and 19 CFR 351.211.

Dated: January 26, 2005.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.

Footnotes

1.  On January 21, 2005, the International Trade Commission (ITC) notified the Department of Commerce (the Department) of its final determination that two domestic like products exist for the merchandise covered by the Department's investigation: 1) certain non-canned warmwater shrimp and prawns; and 2) canned warmwater shrimp and prawns. The ITC determined that imports of canned warmwater shrimp and prawns from Ecuador were negligible; therefore, canned warmwater shrimp and prawns will not be covered by the antidumping duty order.

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