E7-18041. Certain Frozen Warmwater Shrimp from Ecuador: Final Results of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On March 9, 2007, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp (shrimp) from Ecuador. This review covers 23 producers/exporters of the subject merchandise to the United States. The period of review (POR) is August 4, 2004, through January 31, 2006.

Based on our analysis of the comments received, we have made certain changes in the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled “Final Results of Review.”

EFFECTIVE DATE:

September 12, 2007.

FOR FURTHER INFORMATION CONTACT:

David Goldberger or Gemal Brangman, 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] and [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

This review covers 23 producers/exporters. The respondents selected for individual review are OceanInvest, S.A. (OceanInvest) and Promarisco, S.A. (Promarisco). The respondents not selected for individual review are listed in the “Final Results of Review” section of this notice.

On March 9, 2007, the Department published in the Federal Register the preliminary results of administrative review of the antidumping duty order on shrimp from Ecuador. See Certain Frozen Warmwater Shrimp from Ecuador: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review, 72 FR 10658 (March 9, 2007) (Preliminary Results).

We issued a supplemental questionnaire to Promarisco on March 9, 2007, in order to clarify certain reported data in the sales listings. We received a response to this supplemental questionnaire on March 19, 2007.

We invited parties to comment on our preliminary results of review, as well as on the additional information noted above. In April and May 2007, we received case and rebuttal briefs from the petitioner (i.e., the Ad Hoc Shrimp Trade Action Committee) and the respondents (i.e., Promarisco and OceanInvest).

The Department has conducted this administrative review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).

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.

Period of Review

The POR is August 4, 2004, through January 31, 2006.

Application of Facts Available

In the Preliminary Results, we determined that, in accordance with section 776(a)(2)(A) of the Act, the use of facts available was appropriate as the basis for the dumping margins for the following producer/exporters: Doblertel, S.A. (Doblertel) and Sociedad Atlantico Pacifico, S.A. (Sociedad Atlantico Pacifico). See Preliminary Results, 72 FR at 10700-01.

Section 776(a) of the Act provides that the Department will apply “facts otherwise available” if, inter alia, necessary information is not available on the record or an interested party: 1) withholds information that has been requested by the Department; 2) fails to provide such information within the deadlines established, or in the form or manner requested by the Department; 3) significantly impedes a proceeding; or 4) provides such information, but the information cannot be verified.

Doblertel and Sociedad Atlantico Pacifico claimed that they made no shipments of subject merchandise to the United States during the POR. However, because we were unable to confirm the accuracy of these companies' claims with Customs and Border Protection (CBP), we requested further information/clarification from them. Doblertel and Sociedad Atlantico Pacifico failed to provide the requested information/clarification. By doing so, these companies withheld requested information and significantly impeded the proceeding. Therefore, as in the Preliminary Results, the Department finds that the use of total facts available for Doblertel and Sociedad Atlantico Pacifico is appropriate pursuant to sections 776(a)(2)(A) and (C) of the Act. See Preliminary Results, 72 FR at 10700-01.

Adverse Facts Available

In selecting from among the facts otherwise available, section 776(b) of the Act authorizes the Department to use an adverse inference if the Department finds that an interested party failed to cooperate by not acting to the best of its ability to comply with the request for information. See, e.g., Notice of Final Results of Antidumping Duty Administrative Review: Stainless Steel Bar from India, 70 FR 54023, 54025-26 (Sept. 13, 2005); see also Notice of Final Determination of Sales at Less Than Fair Value and Final Negative Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from Brazil, 67 FR 55792, 55794-96 (Aug. 30, 2002). 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 accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, Vol. 1, at 870 (1994) (SAA). Furthermore, “affirmative evidence of bad faith on the part of a respondent is not required before the Department may make an adverse inference.” See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27340 (May 19, 1997); see also Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003) (Nippon). We find that Doblertel and Sociedad Atlantico Pacifico did not act to the best of their abilities in this proceeding, within the meaning of section 776(b) of the Act, because they failed to respond to the Department's requests for information. Therefore, an adverse inference is warranted in selecting facts otherwise available. See Nippon, 337 F.3d at 1382-83.

Section 776(b) of the Act provides that the Department may use as AFA information derived from: 1) the petition; 2) the final determination in the investigation; 3) any previous review; or 4) any other information placed on the record.

The Department's practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse “as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.” See, e.g., Certain Steel Concrete Reinforcing Bars from Turkey; Final Results and Rescission of Antidumping Duty Administrative Review in Part, 71 FR 65082, 65084 (November 7, 2006).

In order to ensure that the margin is sufficiently adverse so as to induce cooperation, we have assigned the highest transaction-specific rate calculated for a respondent in this review. As discussed in detail in the Preliminary Results, 72 FR at 10701, and the Memorandum to the File entitled “Procedures Conducted to Corroborate Data Contained in Petition for Assignment of Appropriate Adverse Facts Available Rate,” dated February 28, 2007, the Department preliminarily found that the highest transaction-specific rate of 48.61 percent was sufficiently high as to effectuate the purpose of the AFA rule (i.e., we found that this rate was high enough to encourage participation in future segments of this proceeding in accordance with section 776(b) of the Act), and that the information upon which this margin is based has probative value and thus satisfies the requirements of section 776(c) of the Act.

For the final results, we have applied the same AFA rate selection methodology for the same reasons as those articulated in the Preliminary Results. However, as a result of changes made to the respondents' margin calculations since the Preliminary Results, the highest transaction-specific rate calculated for a respondent in this review has changed. For the final results, the highest transaction-specific rate calculated is 35.00 percent. We find that this rate is sufficiently adverse so as to induce cooperation in future segments of this proceeding, in accordance with section 776(b) of the Act, and that the information upon which this margin is based also has probative value and thus satisfies the requirements of section 776(c) of the Act.

Cost of Production

As discussed in the Preliminary Results, we conducted an investigation to determine whether OceanInvest and Promarisco made third country sales of the foreign like product during the POR at prices below their costs of production (COP) within the meaning of section 773(b)(1) of the Act. We performed the cost test for these final results following the same methodology as in the Preliminary Results, except as discussed in the decision memorandum accompanying this notice (the Decision Memo).

We found 20 percent or more of each respondent's sales of a given product during the reporting period were at prices less than the weighted-average COP for this period. Thus, we determined that these below-cost sales were made in “substantial quantities” within an extended period of time and at prices which did not permit the recovery of all costs within a reasonable period of time in the normal course of trade. See Sections 773(b)(2)(B) - (D) of the Act.

Therefore, for purposes of these final results, we find that OceanInvest and Promarisco made below-cost sales not in the ordinary course of trade. Consequently, we disregarded these sales for each respondent and used the remaining sales as the basis for determining normal value pursuant to section 773(b)(1) of the Act.

Analysis of Comments Received

All issues raised in the case briefs by parties to this administrative review, and to which we have responded, are listed in the Appendix to this notice and addressed in the accompanying Issues and Decision Memorandum (the Decision Memo), which is adopted by this notice. Parties can find a complete discussion of all issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit, room B-099, of the main Department building.

In addition, a complete version of the Decision Memo can be accessed directly on the Web at http://ia.ita.doc.gov/​frn/​. The paper copy and electronic version of the Decision Memo are identical in content.

Changes Since the Preliminary Results

Based on our analysis of the comments received, we have made certain changes in the margin calculations. These changes are discussed in the relevant sections of the Decision Memo.

Final Results of Review

We determine that the following weighted-average margin percentages exist for the period August 4, 2004, through January 31, 2006:

Manufacturer/Producer/Exporter	Margin Percentage
OceanInvest, S.A.	3.69
Promarisco, S.A.	0.39 (de minimis)

Review-Specific Average Rate Applicable to the Following Companies:²

Manufacturer/Exporter	Margin Percentage
Agrol S.A.	3.69
Camarones (Camarones Del Mar COBUS S.A.)	3.69
Comercializadora del Mar COMAR Cia. Ltda.	3.69
Empacadora y Exportadora Calvi Cia. Ltda.	3.69
Emprede S.A.	3.69
Exportadora del Oceano Oceanexa C. A.	3.69
Fortumar Ecuador S.A.	3.69
Gambas del Pacifico	3.69
Hectorosa S.A.	3.69
Inepexa S.A.	3.69
Jorge Luis Benitez Lopez	3.69
Luis Loaiza Alvarez	3.69
Mardex Cia. Ltda.	3.69
Marines C.A.	3.69
Pacfish, S.A.	3.69
PCC Congelados & Frescos SA	3.69
Pescazul S.A.	3.69
Productos Cultivados del Mar “Proculmar” Cia. Ltda.	3.69
Promarosa S.A.	3.69

AFA Rate Applicable to the Following Companies:

Manufacturer/Exporter	Percent Margin
Doblertel S.A.	35.00
Sociedad Atlantico Pacifico, S.A.	35.00

Assessment

The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue liquidation and assessment instructions to CBP 15 days after the date of publication of these final results of review.

Pursuant to 19 CFR 351.212(b)(1), for OceanInvest, because this company reported the entered value for some of its U.S. sales, we calculated importer-specific ad valorem duty assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the sales for which entered value was reported. For OceanInvest's U.S. sales reported without entered values, we calculated importer-specific per-unit duty assessment rates by aggregating the total amount of antidumping duties calculated for the examined sales and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates are de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer-specific ad valorem ratios based on the estimated entered value.

For Promarisco, because it reported the entered value of all of its U.S. sales, we have calculated the importer-specific ad valorem duty assessment rate based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales for that importer. As discussed in the Memorandum to the File dated September 5, 2007, entitled “Supplementary Discussion of Promarisco Issues in Final Results,” we have calculated a single importer-specific assessment rate for Promarisco, consistent with our practice in Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and Singapore: Final Results of the Antidumping Administrative Reviews, Rescission of Administrative Review in part, and Determination Not to Revoke Order in Part, 68 FR 35623 (June 16, 2003), and accompanying Issues and Decision Memorandum at Comment 9B; and Notice of Final Results of Antidumping Duty Administrative Review and Notice of Final Results of Antidumping Duty Changed Circumstances Review: Certain Softwood Lumber Products From Canada, 69 FR 75921 (December 20, 2004), and accompanying Issues and Decision Memorandum at Comment 13.

For the responsive companies which were not selected for individual review, we have calculated an assessment rate based on the weighted average of the cash deposit rates calculated for the companies selected for individual review excluding any which are de minimis or determined entirely on AFA.

We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate is above de minimis (i.e., at or above 0.50 percent). Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is de minimis (i.e., less than 0.50 percent).

The Department clarified its “automatic assessment” regulation on May 6, 2003. See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results of review for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.

Discontinuation of Cash Deposit Requirements

Pursuant to the 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), effective August 15, 2007, we have revoked the antidumping duty order on frozen warmwater shrimp from Ecuador. Accordingly, we will instruct CBP to discontinue collection of cash deposits of antidumping duties on entries of the subject merchandise.

Notification to Importers

This notice serves as a final reminder to importers of their responsibility, under 19 CFR 351.402(f)(2), to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

Notification to Interested Parties

This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

We are issuing and publishing these final results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221.

Dated: September 5, 2007.

David M. Spooner,

Assistant Secretary for Import Administration.

Appendix - Issues in Decision Memorandum

General Issues

1. “Zeroing” Methodology in Administrative Reviews

Company-Specific Issues

2. Treatment of Sales and Certain Costs of Promarisco Ceviche Products

3. Third-Country Market Selection for Promarisco

4. Treatment of Certain Promarisco U.S. Sales

5. Allocation of Certain Promarisco Processing Costs

6. OceanInvest's Reported COP Methodology

7. CV Profit Rates for OceanInvest's Value-Added and Non-Value-Added Products

8. Treatment of OceanInvest's Commission Expenses

Footnotes

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

2.  This rate is based on the weighted average of the margins calculated for those companies selected for individual review, excluding de minimis margins or margins based entirely on AFA. As the final results rate for Promarisco is de minimis, the rate applicable to these companies is the final results rate calculated for OceanInvest.