2011-10080. Certain Frozen Warmwater Shrimp From Brazil, India, the People's Republic of China, Thailand, and the Socialist Republic of Vietnam: Amended Antidumping Duty Orders in Accordance with Final Court Decision

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

DATES:

Effective Date: April 26, 2011.

SUMMARY:

On April 14, 2010, the U.S. Court of International Trade (“CIT”) sustained the remand redetermination ^[1] issued by the Department of Commerce (“Department”) pursuant to the CIT's remand order involving the antidumping duty investigations of certain frozen warmwater shrimp from Brazil, Ecuador, India, the People's Republic of China (“PRC”), Thailand, and the Socialist Republic of Vietnam (“Vietnam”).^[2] On March 30, 2011, the U.S. International Trade Commission (“ITC”) notified the Department of its final determinations in the five-year (sunset) reviews concerning the antidumping duty orders on frozen warmwater shrimp from Brazil, the PRC, India, Thailand, and Vietnam, in which it found that revocation of these orders would likely lead to a continuation or recurrence of material injury to an industry in the United States within a reasonably foreseeable time to a U.S. industry. The ITC also found the domestic like product to include dusted shrimp. See id. at footnote 22. In light of the CIT's final decision and the ITC's sunset determination, the Department is now issuing amended antidumping duty orders that include dusted shrimp within the scope of the orders.

FOR FURTHER INFORMATION CONTACT:

Emeka Chukwudebe or Matthew Renkey, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Ad Hoc IV arose out of the Department's final determinations ^[3] and amended final determinations ^[4] in the original investigations of certain frozen warmwater shrimp. In Ad Hoc III, the CIT remanded the issue of the Department's decision to exclude dusted shrimp from the scope of the antidumping duty investigations on certain frozen and canned warmwater shrimp.^[5] In the Final Redetermination submitted in response to Ad Hoc III, the Department found that dusted shrimp should be included within the scope of the investigations. On April 14, 2010, the CIT affirmed all aspects of the Department's remand redetermination. On September 2, 2010, the Department published in the Federal Register the amended final determinations of certain frozen warmwater shrimp from Brazil, Ecuador, India, the PRC, Thailand, and Vietnam.^[6]

At the time that the Department issued its Second Amended Final Determinations, it did not issue amended antidumping duty orders to include dusted shrimp absent an injury analysis from the ITC. On March 30, 2011, the ITC notified the Department of its final determinations, which addressed the injury analysis with respect to dusted shrimp. See Frozen Warmwater Shrimp from Brazil, China, India, Thailand, and Vietnam (Investigation Nos. 731-TA-1063, 1064, 1066-1068 (Review), USITC Publication 4221, March 2011 (“ITC Review Final”). Specifically, the ITC noted that:

“Dusted shrimp,” which is now expressly included in the scope definition, was expressly excluded from the scope during the original investigations. In September 2010, Commerce published a notice in the Federal Register amending the scope definition to include “dusted shrimp” pursuant to a court remand. “Dusted shrimp” has not been the subject of any domestic like product arguments in either the original investigations or these reviews.

See ITC Review Final at 5-6. In turn, the ITC found that it did not need to make a formal redetermination of its original injury determinations and further stated that “[b]ecause the scope definition now includes dusted shrimp, and the record provides no basis for treating dusted shrimp as a distinct like product, we define the domestic like product to include dusted shrimp.” See id. at footnote 22. As the ITC has found that the domestic like product includes dusted shrimp in its ITC Review Final, the Department is now issuing amended antidumping duty orders.

We also note that prior to Ad Hoc IV, the Second Amended Final Determinations, and the ITC Review Final, the Department revoked the antidumping duty order with respect to Ecuador.^[7] Thus, we are not including Ecuador in these amended antidumping duty orders pursuant to court decision.

Inclusion in the Amended Antidumping Duty Orders

As we now find that dusted shrimp is within the scope of the orders, we have included revised scope language below. We note that the original shrimp investigations also included canned warmwater shrimp. However, given that the ITC did not find injury with respect to canned warmwater shrimp in its original investigation and that the subsequent Shrimp AD Amended Finals and Orders did not include canned warmwater shrimp, we are similarly not including any reference to canned warmwater shrimp in the revised scope language. While the Department finds that dusted shrimp are no longer excluded from the scope of the orders, it has retained the five-step definition of the dusting process, as dusting is a necessary precursor for producing battered shrimp, which remains outside the scope.

Scope of the Orders

The scope of the orders 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,^[8] 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 these orders, 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 these orders. In addition, food preparations (including dusted shrimp), which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of these orders.

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 subheadings 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) Lee Kum Kee's shrimp sauce; ^[9] (7) canned warmwater shrimp and prawns (HTS subheading 1605.20.10.40); and (8) certain battered shrimp. Battered 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. When dusted in accordance with the definition of dusting above, the battered shrimp product is also coated with a wet viscous layer containing egg and/or milk, and par-fried.

The products covered by these orders 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 these orders is dispositive.

Collection of Cash Deposits

The Department will instruct U.S. Customs and Border Protection to collect cash deposits on all imports of the subject merchandise (including dusted shrimp) entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice.

This notice is issued and published in accordance with sections 735(d), 736(a), and 777(i)(1) of the Act.

Dated: April 18, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  See Final Results of Redetermination Pursuant to Court Remand, Court No. 05-00192 (October 29, 2009) (“Final Redetermination”), found at http://ia.ita.doc.gov/​remands/​09-69.pdf.

2.  See Ad Hoc Shrimp Trade Action Committee v. United States, 703 F. Supp. 2d 1330 (Ct. Int'l Trade 2010) (“Ad Hoc IV”).

3.  See Notice of Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From Brazil, 69 FR 76910 (December 23, 2004); Notice of Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From Ecuador, 69 FR 76913 (December 23, 2004); 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 (December 23, 2004); Notice of Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From the People's Republic of China, 69 FR 70997 (December 8, 2004); 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 Thailand, 69 FR 76918 (December 23, 2004); Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69 FR 71005 (December 8, 2004).

4.  See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Brazil, 70 FR 5143 (February 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Ecuador, 70 FR 5156 (February 1, 2005); 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 (February 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From the People's Republic of China, 70 FR 5149 (February 1, 2005); 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 (February 1, 2005); Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 70 FR 5152 (February 1, 2005)(collectively, the “Shrimp AD Amended Finals and Orders”).

5.  See Ad Hoc Shrimp Trade Action Committee v. United States, 637 F. Supp. 2d 1166 (Ct. Int'l Trade 2009) (“Ad Hoc III”).

6.  See Certain Frozen Warmwater Shrimp From Brazil, India, the People's Republic of China, Thailand, and the Socialist Republic of Vietnam: Notice of Amended Final Determinations of Sales at Less Than Fair Value Pursuant to Court Decision, 75 FR 53947 (September 2, 2010) (“Second Amended Final Determinations”).

7.  See Implementation of the Findings of the WTO Panel in United States Antidumping Measure on Shrimp from Ecuador: Notice of Determination Under section 129 of the Uruguay Round Agreements Act and Revocation of the Antidumping Duty Order on Frozen Warmwater Shrimp from Ecuador, 72 FR 48257 (August 23, 2007).

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

9.  The specific exclusion for Lee Kum Kee's shrimp sauce applies only to the scope in the PRC case.