E9-21904. Third Administrative Review of Frozen Warmwater Shrimp From the People's Republic of China: Final Results and Partial Rescission of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On March 9, 2009, the Department of Commerce (the “Department”) published in the Federal Register the Preliminary Results of the third administrative review of the antidumping duty order on certain frozen warmwater shrimp from the People's Republic of China (“PRC”).^[1] We gave interested parties an opportunity to comment on the Preliminary Results. Based upon our analysis of the comments and information received, we made changes to the margin calculations for the final results. We continue to find that certain exporters have sold subject merchandise at less than normal value during the period of review (“POR”), February 1, 2007, through January 31, 2008.

DATES:

Effective Date: September 10, 2009.

FOR FURTHER INFORMATION CONTACT:

Paul Walker, AD/CVD Operations, Office 9, 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 April 7, 2008, the Department initiated an administrative review of 482 producers/exporters of subject merchandise from the PRC.^[2] In the Preliminary Results the Department rescinded the review with respect to Yelin Enterprise Co., Ltd. Hong Kong (the predecessor in interest to Hilltop International), Yangjiang City Yelin Hoitat Quick Frozen Seafood Co., Ltd., Fuqing Yihua Aquatic Food Co., Ltd. and Fuqing Minhua Trade Co., Ltd. (collectively named “Yelin/Hilltop”), in accordance with 19 CFR 351.213(d)(1), because of timely withdrawals of requests for review. Also, in the Preliminary Results the Department preliminarily rescinded the review with respect to 11 companies which submitted no shipment certifications: Allied Pacific Group (comprised of Allied Pacific Food (Dalian) Co., Ltd.; Allied Pacific Aquatic Products (Zhanjiang) Co., Ltd.; ^[3] Zhanjiang Allied Pacific Aquaculture Co., Ltd.; Allied Pacific (H.K.) Co., Ltd.; and King Royal Investments Ltd.); Gallant Ocean (Nanhai), Ltd.; Luk Ka Paper Industrial Ltd.; Shantou Yelin Frozen Seafood Co., Ltd.; and Shantou Yuexing Enterprise Company. Thus, 466 companies remain subject to this review.

As noted above, on March 9, 2009, the Department published the Preliminary Results of this administrative review.^[4] On March 25, 2009, the Petitioners ^[5] submitted additional surrogate value information. On March 30, 2009, Domestic Interested Parties ^[6] submitted additional surrogate value information. On April 2, 2009, Zhanjiang Regal Integrated Marine Resources Co., Ltd. (“Regal”) submitted additional surrogate value information.

On April 3, 2009, we extended the deadline for parties to submit the case briefs and rebuttal briefs to April 8, 2009 and April 17, 2009, respectively. On April 8, 2009, the Petitioners, DIP and Regal filed case briefs. On April 17, 2009, the Petitioners and DIP filed rebuttal briefs.

On June 4, 2009, the Department extended the deadline for the completion of the final results of this review until July 28, 2009.^[7] On July 22, 2009, the Department extended the deadline for the completion of the final results of this review until August 28, 2009.^[8]

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to these reviews are addressed in the “Administrative Review of Frozen Warmwater Shrimp from the People's Republic of China: Issues and Decision Memorandum for the Final Results,” which is dated concurrently with this notice (“I&D Memo”). A list of the issues which parties raised and to which we respond in the I&D Memo is attached to this notice as an Appendix. The I&D Memo is a public document and is on file in the Central Records Unit (“CRU”), Main Commerce Building, Room 1117, and is accessible on the Department's Web site at http://www.trade.gov/​ia. The paper copy and electronic version of the memorandum are identical in content.

Changes Since the Preliminary Results

Based on a review of the record as well as comments received from parties regarding our Preliminary Results, we have made revisions to Regal's margin calculation for the final results. For all changes to Regal's calculation, see I&D Memo and the company specific analysis memorandum.

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,^[9] 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 investigation, 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, white-leg 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 investigation. 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 investigation.

Excluded from the scope are: (1) Breaded shrimp and prawns (HTS subheading 1605.20.1020); (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 0306.23.0020 and 0306.23.0040); (4) shrimp and prawns in prepared meals (HTS subheading 1605.20.0510); (5) dried shrimp and prawns; (6) Lee Kum Kee's shrimp sauce; (7) canned warmwater shrimp and prawns (HTS subheading 1605.20.1040); (8) certain dusted shrimp; and (9) 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 pan-fried.

The products covered by this investigation are currently classified under the following HTS subheadings: 0306.13.0003, 0306.13.0006, 0306.13.0009, 0306.13.0012, 0306.13.0015, 0306.13.0018, 0306.13.0021, 0306.13.0024, 0306.13.0027, 0306.13.0040, 1605.20.1010 and 1605.20.1030. 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 investigation is dispositive.

Final Partial Rescission

In the Preliminary Results, the Department preliminarily rescinded this review with respect to the following companies: Allied Pacific Group ^[10] ; Gallant Ocean (Nanhai), Ltd.; Luk Ka Paper Industrial Ltd.; Shantou Yelin Frozen Seafood Co., Ltd.; and Shantou Yuexing Enterprise Company. These companies reported that they had no shipments of subject merchandise to the United States during the POR.

Subsequent to the Preliminary Results, no information was submitted on the record indicating that the above companies made sales to the United States of subject merchandise during the POR. Thus, in accordance with 19 CFR 351.213(d)(3), and consistent with our practice, we are rescinding this review with respect to the above-named companies for the period of February 1, 2007, through January 31, 2008.

Separate Rates

In our Preliminary Results, we determined that Regal and Shantou Longsheng Aquatic Product Foodstuff Co., Ltd. (“Shantou Longsheng”) met the criteria for the application of a separate rate. We have not received any information since the issuance of the Preliminary Results that provides a basis for the reconsideration of these determinations. Therefore, the Department continues to find that Regal and Shantou Longsheng meet the criteria for a separate rate.

Facts Available

Section 776(a)(2) of the Act provides that if an interested party: (A) Withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and (e) of the Act; (C) significantly impedes a determination under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination.

Furthermore, section 776(b) of the Act provides that, if the Department finds that an interested party “has failed to cooperate by not acting to the best of its ability to comply with a request for information,” the Department may use information that is adverse to the interests of that party as facts otherwise available. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See Statement of Administrative Action (“SAA”) accompanying the URAA, H.R. Doc. No. 316, 103d Cong., 2d Session at 870 (1994). An adverse inference may include reliance on information derived from the petition, the final determination in the investigation, any previous review, or any other information placed on the record. See section 776(b) of the Act.

As noted in the Preliminary Results, the Department selected Zhanjiang Go-Harvest Aquatic Products Co., Ltd. (“Go-Harvest”) for individual examination in this review, however, Go-Harvest did not respond to any of the Department's requests for information.^[11] Because Go-Harvest did not respond to the Department's requests for information and failed to demonstrate that it qualifies for separate rate status, we consider Go-Harvest to be a part of the PRC-wide entity.^[12] Consequently, because the PRC-wide entity, including Go-Harvest, withheld requested information, failed to provide information in a timely manner and in the form requested, and significantly impeded this proceeding, we found in the Preliminary Results that the PRC-wide entity, including Go-Harvest, failed to cooperate to the best of its ability and applied adverse facts otherwise available in order to determine a margin for the PRC-wide entity, pursuant to section 776(a)(2)(A), (B), (C) and 776(b) of the Act.^[13]

In the Initiation, we requested that all companies listed therein wishing to qualify for separate rate status in this administrative review submit, as appropriate, either a separate rate status application or certification.^[14] As noted above, the Department initiated this administrative review with respect to 482 companies, and in the Preliminary Results rescinded the review on five of those 482 companies. Also as noted above, the Department is rescinding the review with respect to eleven other above-named companies due to the lack of shipments during the POR. Thus, including Regal and Shantou Longsheng, 466 companies remain subject to this review. We note that no other company listed in the Initiation, including Go-Harvest, has demonstrated its eligibility for separate rate status in this administrative review. In the Preliminary Results, the Department determined that 464 companies which did not demonstrate eligibility for a separate rate are properly considered part of the PRC-Wide entity.^[15] Since the Preliminary Results, none of the 464 companies, including Go-Harvest submitted comments regarding these findings.

Therefore, we continue to treat these entities as part of the PRC-Wide entity.

Final Results of Review

The weighted-average dumping margins for the POR are as follows:

Frozen Warmwater Shrimp From the PRC

Exporter	Weighted-average margin (percent)
Regal	9.08
Shantou Longsheng	9.08
PRC-Wide Entity 16	112.81
16 The PRC-wide entity includes the 464 companies currently under review that have not established their entitlement to a separate rate, including Zhanjiang Go-Harvest Aquatic Products Co., Ltd. and Shantou Yuexing Enterprise Company.

Assessment

Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific (or customer) ad valorem duty assessment rates based on the ratio of the total amount of the dumping margins calculated for the examined sales to the total entered value of those same sales. 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.

Cash Deposit Requirements

The following cash deposit requirements will be effective upon publication of these final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be the rate established in these final results of review (except, if the rate is zero or de minimis, i.e., less than 0.5 percent, a zero cash deposit rate will be required for that company); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 112.81 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.

Reimbursement of Duties

This notice also serves as a final 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 POR. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of doubled antidumping duties.

Administrative Protective Orders

This notice also serves as a reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. 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 violation which is subject to sanction.

We are issuing and publishing this administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.

Dated: August 28, 2009.

Ronald K. Lorentzen,

Acting Assistant Secretary for Import Administration.

Appendix I—Decision Memorandum

Comment 1: Surrogate Country

Comment 2: Zeroing

Comment 3: Surrogate Values

a. Purchased Ice

b. Ocean Water

c. Shrimp Feed

d. Salt

e. By-products

f. Fertilizer

g. Shrimp Larvae

Comment 4: Calculation of Surrogate Financial Ratios

a. Interest

b. Labor

c. Depreciation

Comment 5: Calculation of Diesel Oil Consumption

Comment 6: Self-Made Ice

Comment 7: Assessment Rates to Account for Misclassified Entries

Comment 8: Selection of Respondents

Footnotes

1.  See Third Administrative Review of Frozen Warmwater Shrimp from the People's Republic of China: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review, 74 FR 10026 (March 9, 2009) (“Preliminary Results”).

2.  See notice of Initiation of Administrative Reviews of the Antidumping Duty Orders on Frozen Warmwater Shrimp from the Socialist Republic of Vietnam and the People's Republic of China, 73 FR 18739 (April 7, 2008) for a listing of these companies.

3.  The Department in its initiation notice included “Allied Pacific Aquatic Products (Zhangjiang) Co., Ltd.” due to the Petitioners' misspelling of the company's name in its review request. See Letter from Dewey & LeBouef to the Secretary of Commerce, “Request for Administrative Reviews,” (Feb. 29, 2008). In its April 17, 2008, letter, Allied Pacific Aquatic Products (Zhanjiang) Co., Ltd. clarified the correct spelling of its name. See Letter from Trade Pacific to the Secretary of Commerce, “Frozen Warmwater Shrimp from the People's Republic of China.” The Department notes that the review is preliminarily rescinded for both the proper name and the misspelled name of this company.

4.  See Preliminary Results.

5.  The petitioners are the members of the Ad Hoc Shrimp Trade Action Committee (hereinafter referred to as “Petitioners”).

6.  These domestic parties are the American Shrimp Processors Association and Louisiana Shrimp Association (hereinafter referred to as “DIP”).

7.  See Certain Frozen Warmwater Shrimp from the People's Republic of China and the Socialist Republic of Vietnam: Notice of Extension of Time Limit for the Final Results of the Third Administrative Reviews, 74 FR 26839 (June 4, 2009).

8.  See Certain Frozen Warmwater Shrimp from the People's Republic of China and the Socialist Republic of Vietnam: Notice of Extension of Time Limit for the Final Results of the Third Administrative Reviews, 74 FR 36164 (July 22, 2009).

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

10.  Allied Pacific Group is comprised of: Allied Pacific Food (Dalian) Co., Ltd.; Allied Pacific Aquatic Products (Zhanjiang) Co., Ltd.; Zhanjiang Allied Pacific Aquaculture Co., Ltd.; Allied Pacific (H.K.) Co., Ltd.; and King Royal Investments Ltd.

11.  See Preliminary Results at 10026.

12.  Id.

13.  See e.g., Non-Malleable Cast Iron Pipe Fittings from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 71 FR 69546 (December 1, 2006) and accompanying Issues and Decision Memorandum at Comment 1. See also Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Preliminary Results of the First Administrative Review and New Shipper Review, 72 FR 10689, 10692 (March 9, 2007) (decision to apply total AFA to the NME-wide entity unchanged in Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Final Results of the First Antidumping Duty Administrative Review and First New Shipper Review, 72 FR 52052 (September 12, 2007) (First Vietnamese Shrimp Review).

14.  See Initiation.

15.  See Preliminary Results at 10029.