E9-6438. Certain Frozen Warmwater Shrimp from Thailand: Initiation of Antidumping Duty Changed Circumstances Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

DATES:

Effective Date: March 24, 2009.

SUMMARY:

In February 2009, the Department of Commerce (the Department) received from several producers/exporters of frozen warmwater shrimp from Thailand a request to initiate a changed circumstances review to consider partially revoking the order with respect to two companies, pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.216(b) and 351.222. In response to this request, the Department is initiating a changed circumstances review.

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).

On January 30, 2009, the Department implemented its determination regarding the offsetting of dumped sales with non-dumped sales in the antidumping duty investigation of certain frozen warmwater shrimp from Thailand, challenged by Thailand before the World Trade Organization. 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 (Jan. 30, 2009) (Section 129 Implementation). As a result, the Department revoked the following nine companies, collectively known as the “Rubicon Group,” from the Thai Shrimp Order: 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, 74 FR 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 from the Thai Shrimp Order two additional companies (Phatthana Frozen Food Co., Ltd. (PFF) and Sea Wealth Frozen Food Co., Ltd. (Sea Wealth)), both of which became operational after the less-than-fair-value (LTFV) investigation. 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 additionally contended that any revocation for PFF and Sea Wealth should be effective January 16, 2009, the effective date of the Section 129 Implementation.

On February 12, 2009, we requested that the Rubicon Group clarify its request to identify the relevant statutory provision under which its request fell. On February 13, 2009, the Rubicon Group clarified its changed circumstances review request stating that it would be appropriate for the Department to evaluate its request using either a “collapsing” analysis under 19 CFR 351.401(a) or the Department's “successor-in-interest” analysis.

On February 18, 2009, we requested further information from the Rubicon Group with respect to the following four factors: Management; production facilities; supplier relationships; and customer base. On March 13, 2009, the Rubicon Group submitted the requested information.

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.

Initiation of Changed Circumstances Review

Pursuant to section 751(b)(1) of the Act, the Department will conduct a changed circumstances review upon receipt of information concerning, or a request from an interested party for a review of, an antidumping duty order which shows changed circumstances sufficient to warrant a review of the order. In accordance with 19 CFR 351.216(d), the Department finds there is sufficient information to warrant initiating a changed circumstances review. Therefore, pursuant to section 751(b)(1) of the Act and 19 CFR 351.216(d), we are initiating a changed circumstances review to determine whether PFF and Sea Wealth should be revoked from the

Thai Shrimp Order

Although the Rubicon Group has submitted documentation regarding the corporate structure of the Rubicon Group and its constituent companies, we require additional time to analyze these submissions. Accordingly, it would be inappropriate for the Department to expedite this action by combining the preliminary results of review with this notice of initiation, as permitted under 19 CFR 351.221(c)(3)(ii). As a result, the Department is not issuing preliminary results for this changed circumstances review at this time.

The Department will publish in the Federal Register a notice of preliminary results of changed circumstances review in accordance with 19 CFR 351.221(b)(4) and 351.221(c)(3)(i), which will set forth the Department's preliminary factual and legal conclusions. Pursuant to 19 CFR 351.221(b)(4)(ii), interested parties will have an opportunity to comment on the preliminary results. The Department will issue its final results of review in accordance with the time limits set forth in 19 CFR 351.216(e).

This notice is in accordance with section 751(b)(1) of the Act.

Dated: March 18, 2009.

John M. Andersen,

Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.

Footnotes

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