2011-19388. Fourth New Shipper Review of Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Final Results of Antidumping Duty New Shipper Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On April 13, 2011, the Department of Commerce (the “Department”) published the preliminary results of the fourth new shipper review (“NSR”) on certain frozen warmwater shrimp (“shrimp”) from the Socialist Republic of Vietnam (“Vietnam”), covering the period of review (“POR”) of February 1, 2010-July 31, 2010.^[1] The Department received no comments on its Preliminary Results.

DATES:

Effective Date: August 1, 2011.

FOR FURTHER INFORMATION CONTACT:

Paul Walker, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: [phone].

Case History

The Department invited interested parties to comment on the Preliminary Results. On May 13, 2011, Quoc Viet Seaproducts Processing Trading and Import-Export Co., Ltd. (“Quoc Viet”) submitted a case brief.^[2] No other interested party submitted a case brief. On May 16, 2011 Quoc Viet withdrew its case brief.^[3] On June 23, 2011 the Department released a letter concerning labor wage rates.^[4] On July 7, 2011 Quoc Viet submitted comments on labor wage rates. On July 11, 2011 Quoc Viet withdrew its labor wage rate comments.^[5] As a consequence, there are no case briefs, comments or hearing requests since the Preliminary Results on the record of this NSR.

Scope of Order

The scope of the 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,^[6] 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 (“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 (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 this order.

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) canned warmwater shrimp and prawns (HTS subheading 1605.20.1040); and (7) 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 this order 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 order is dispositive.

Labor Wage Rate

Section 733(c) of the Tariff Act of 1930, as amended (the “Act”), provides that the Department will value the factors of production (“FOP”) in NME cases using the best available information regarding the value of such factors in a market economy (“ME”) country or countries considered to be appropriate by the administering authority. The Act requires that when valuing FOP, the Department utilize, to the extent possible, the prices or costs of factors of production in one or more ME countries that are (1) At a comparable level of economic development and (2) significant producers of comparable merchandise.^[7]

Previously, the Department used regression-based wages that captured the worldwide relationship between per capita Gross National Income (“GNI”) and hourly manufacturing wages, pursuant to section 351.408(c)(3) of the Department's regulations, to value the respondent's cost of labor. However, on May 14, 2010 the Court of Appeals for the Federal Circuit (“CAFC”), in Dorbest Ltd. v. United States, 604 F.3d 1363, 1372 (Fed. Cir. 2010) (“Dorbest”), invalidated section 351.408(c)(3) of the Department's regulations. As a consequence of the CAFC's ruling in Dorbest, the Department no longer relies on the regression-based wage rate methodology described in its regulations. On February 18, 2011 the Department published a request for public comment on the interim methodology, and the data sources.^[8]

On June 21, 2011 the Department revised its methodology for valuing the labor input in NME antidumping proceedings.^[9] In Labor Methodologies, the Department determined that the best methodology to value the labor input is to use industry-specific labor rates from the primary surrogate country. Additionally, the Department determined that the best data source for industry-specific labor rates is Chapter 6A: Labor Cost in Manufacturing, from the International Labor Organization (“ILO”) Yearbook of Labor Statistics (“Yearbook”).

As Bangladesh does not report labor data to the ILO, we are unable to use Chapter 6 data to value Quoc Viet's labor wage rate for these final results. However, the record does contain a labor value for shrimp processing in Bangladesh, published by the Bangladesh Bureau of Statistics. The Department finds this labor value to be the best available information on the record because it is specific to the industry being examined, and is therefore derived from industries that produce comparable merchandise. Because this value is not contemporaneous to the POR, we inflated it using the Consumer Price Index (“CPI”) rate for Bangladesh, as published in the International Financial Statistics of the International Monetary Fund. Thus, for the final results we valued labor using an industry-specific labor rate from the primary surrogate country. The calculated industry-specific wage rate is 16.71 Bangladeshi takas per hour. A more detailed description of the wage rate calculation methodology is provided in the Memorandum to the File, through Scot T. Fullerton, Program Manager, from Paul Walker, Case Analyst, “Fourth New Shipper Review of Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Surrogate Values for the Final Results,” dated concurrently with this memorandum.

As stated above, the Department valued Quoc Viet's labor using Bangladeshi government data. Because there is no record evidence as to whether this data contains all costs related to labor, including wages, benefits, housing, training, etc., we have made no adjustments to the surrogate financial ratios for the itemized detail of indirect labor costs, as noted in Labor Methodologies.

Final Results of Review

The Department finds that the following margin exists for Quoc Viet for the period February 1, 2010-July 31, 2010:

Certain Frozen Warmwater Shrimp From Vietnam

Manufacturer/Exporter	Margin percent
Quoc Viet	0.00 (de minimis.)

Assessment of Antidumping Duties

Upon issuance of the final results, the Department will determine, and U.S. Customs and Border Protection (“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 section 351.212(b)(1) of the Department's regulations, we will calculate importer-specific (or customer-specific) 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. In accordance with section 351.106(c)(2) of the Department's regulations, we will instruct CBP to liquidate, without regard to antidumping duties, all entries of subject merchandise during the POR for which the importer-specific assessment rate is zero or de minimis.

Cash Deposit Requirements

The following cash deposit requirements will be effective upon publication of the final results of this new shipper review for all shipments of subject merchandise by Quoc Viet, entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Tariff Act of 1930, as amended (the “Act”): (1) For subject merchandise produced and exported by Quoc Viet, the cash deposit rate will be zero; (2) for subject merchandise exported by Quoc Viet, but not manufactured by Quoc Viet, the cash deposit rate will continue to be the Vietnam-wide rate of 25.76 percent; and (3) for subject merchandise manufactured by Quoc Viet, but exported by any party other than Quoc Viet, the cash deposit rate will be the rate applicable to the exporter. These cash deposit requirements will remain in effect until further notice.

Notification to Importers

This notice serves as a final reminder to importers of their responsibility under section 351.402(f)(2) of the Department's regulations to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during the 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 final reminder to parties subject to the administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO, in accordance with section 351.305 of the Department's regulations, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or 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 this NSR notice in accordance with sections 751(a)(2)(b) and 777(i) of the Act.

Dated: July 25, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  See Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Preliminary Results of Antidumping Duty New Shipper Review, 76 FR 20627 (April 13, 2011) (“Preliminary Results”).

2.  See Quoc Viet's May 13, 2011 submission.

3.  According to Quoc Viet, because no other party submitted comments on the final results, and because the issues raised by Quoc Viet in its case brief would have no impact on the Preliminary Determination, which has already established that Quoc Viet is not dumping, Quoc Viet withdrew its case brief. See Quoc Viet's May 16, 2011 submission.

4.  See the Department's letter dated June 23, 2011.

5.  Quoc Viet reiterated its statements made in its May 16, 2011, submission, that that its comments would have no impact on the Preliminary Results, and thus, withdrew its comments. See Quoc Viet's July 11, 2011 submission.

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

7.  See section 773(c)(4) of the Act.

8.  See Antidumping Methodologies in Proceedings Involving Non-Market Economies: Valuing the Factor of Production: Labor, Request for Comment, 76 FR 9544 (Feb. 18, 2011).

9.  See Antidumping Methodologies in Proceedings Involving Non-Market Economies: Valuing the Factor of Production: Labor, 76 FR 36092 (June 21, 2011) (“Labor Methodologies”).