[Federal Register Volume 70, Number 20 (Tuesday, February 1, 2005)]
[Notices]
[Pages 5156-5158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-373]


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DEPARTMENT OF COMMERCE

International Trade Administration

(A-331-802)


Notice of Amended Final Determination of Sales at Less Than Fair 
Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from 
Ecuador \1\
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    \1\ On January 21, 2005, the International Trade Commission 
(ITC) notified the Department of Commerce (the Department) of its 
final determination that two domestic like products exist for the 
merchandise covered by the Department's investigation: 1) certain 
non-canned warmwater shrimp and prawns; and 2) canned warmwater 
shrimp and prawns. The ITC determined that imports of canned 
warmwater shrimp and prawns from Ecuador were negligible; therefore, 
canned warmwater shrimp and prawns will not be covered by the 
antidumping duty order.
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AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

EFFECTIVE DATE: February 1, 2005.

FOR FURTHER INFORMATION CONTACT: David J. Goldberger or Terre Keaton, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230; telephone: (202) 482-4136, or (202) 482-1280, 
respectively.

SUPPLEMENTARY INFORMATION:

Amendment to Final Determination

    In accordance with sections 735(a) and 777(i)(1) of the Tariff Act 
of 1930, as amended, (the Act), on December 23, 2004, the Department 
published its notice of final determination of sales at less than fair 
value (LTFV) in the investigation of certain frozen and canned 
warmwater shrimp (shrimp) from Ecuador. See Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Frozen and 
Canned Warmwater Shrimp from Ecuador, 69 FR 76913 (Dec. 23, 2004) 
(Final Determination). On December 23, 2004, we received an allegation, 
timely filed pursuant to 19 CFR 351.224(c)(2), from the petitioners 
(i.e., Ad Hoc Shrimp Trade Action Committee, Versaggi Shrimp 
Corporation, and Indian Ridge Shrimp Company) that the Department made 
a ministerial error with respect to its exclusion of ``dusted'' shrimp 
from the scope if this investigation. On December 28, 2004, Eastern 
Fish Company, Inc., and Long John Silver's Inc., interested parties in 
this investigation, submitted a response to the petitioners' December 
23, 2004, ministerial error allegation. In addition, on December 30, 
2004, we received allegations, timely filed pursuant to 19 CFR 
351.224(c)(2), from the petitioners and the respondents (i.e., 
Exportadora de Alimentos S.A. and (Expalsa) and Promarisco S.A. 
(Promarisco)) that the Department also made ministerial errors in the 
final margin calculations.
    On January 6, 2005, Exporklore S.A. (Exporklore) submitted rebuttal 
comments to the petitioners' December 30, 2004, ministerial error 
allegation. On January 10, 2005, the petitioners submitted rebuttal 
comments to Expalsa's allegations, and Expalsa submitted rebuttal 
comments to the petitioners' allegations.
    After analyzing Expalsa's, Exporklore's, Promarisco's, and the 
petitioners' submissions, we have determined, in accordance with 19 CFR 
351.224(e), that we made the following ministerial errors in our 
calculations performed for the final determination:
 We made a ministerial error by using the wrong packing expense 
variable for weight-averaging U.S. packing expenses in Expalsa's margin 
program;
 We made a typographical error in the computer programming 
language intended to exclude substandard merchandise in Expalsa's final 
determination comparison market and margin programs;
 We made a ministerial error in Expalsa's comparison market 
program by incorrectly applying the returned sales expenses to all 
Italian sales made after a certain date, rather than to sales made only 
to a specific customer after that date;
 We made a ministerial error in revising Expalsa's raw material 
costs for certain shrimp products by applying the wrong yield factors 
in our adjustments for these products, thereby overstating Expalsa's 
raw material costs;

[[Page 5157]]

 We made a typographical error in the computer programming 
language intended to exclude substandard merchandise in Exporklore's 
final determination comparison market and margin programs;
 We made a ministerial error with respect to the programming 
language used in the comparison market and margin calculation programs 
to revise the count-size ranges for certain shrimp products Exporklore 
sold to Italian and U.S. customers;
 We made a ministerial error by incorrectly inputting an 
invoice number in Exporklore's comparison market program for the 
purpose of correcting a billing adjustment;
 We made a ministerial error by transposing two computer 
variable names for weight-averaging constructed value selling expenses 
in the Promarisco comparison market program;
 We made a ministerial error in the programming language for 
re-allocating U.S. commission and brokerage handling expenses on 
certain U.S. sales in the Promarisco margin calculation program;
 We made a ministerial error in the programming language in the 
Promarisco comparison market and margin calculation programs for re-
coding the count size for certain products.
    Correcting these errors results in revised margins for Expalsa, 
Exporklore, and Promarisco. The revised margin for Expalsa is de 
minimis; therefore, shrimp produced by Expalsa is excluded from the 
order. In addition, we have revised the calculation of the ``all 
others'' rate accordingly.
    For a detailed discussion of the ministerial errors alleged by the 
petitioners and the respondents, as well as the Department's analysis, 
see the January 24, 2005, memorandum to Louis Apple from the Team 
entitled ``Ministerial Error Allegations in the Final Determination of 
the Antidumping Duty Investigation on Certain Frozen Warmwater Shrimp 
from Ecuador.''
    Therefore, in accordance with 19 CFR 351.224(e), we are amending 
the final determination of sales at LTFV in the antidumping duty 
investigation of certain frozen warmwater shrimp from Ecuador. The 
revised weighted-average dumping margins are in the ``Antidumping Duty 
Order'' section, below.

Antidumping Duty Order

    In accordance with section 735(a) of the Act, the Department made 
its final determination that certain frozen and canned warmwater shrimp 
from Ecuador is being, or is likely to be, sold in the United States at 
LTFV. See Final Determination. On January 21, 2005, the ITC notified 
the Department of its final determination pursuant to section 
735(b)(1)(A)(I) of the Act that an industry in the United States is 
materially injured by reason of LTFV imports of subject merchandise 
from Ecuador. In its final determination, however, the ITC determined 
that two domestic like products exist for the merchandise covered by 
the Department's investigation:
    1) certain non-canned warmwater shrimp and prawns; and 2) canned 
warmwater shrimp and prawns. The ITC determined pursuant to section 
735(b)(1)(B) of the Act that imports of canned warmwater shrimp from 
Ecuador are negligible. Therefore, the ITC's affirmative determination 
of material injury covered all non-canned warmwater shrimp and prawns 
other than those specifically excluded in the ``Scope of Order'' 
section, below. Accordingly, the scope of the antidumping duty 
investigation has been amended as described above to reflect the ITC's 
distinction between certain non-canned warmwater shrimp and prawns and 
canned warmwater shrimp and prawns. Specifically, canned warmwater 
shrimp and prawns are excluded from the scope of the order.
    In cases where the ITC specifically excludes a product in its final 
injury determination, the Department may exclude that product from its 
final margin calculation. See Antidumping Duty Orders; Certain 
Stainless Steel Plate in Coils From Belgium, Canada, Italy, the 
Republic of Korea, South Africa, and Taiwan, 64 FR 27756 (May 21, 
1999). However, because the respondents did not export or sell canned 
warmwater shrimp and prawns to the United States during the period of 
investigation (POI), no recalculation of the dumping margins is 
warranted, and therefore we are not amending the final determination 
calculations to exclude any sales of canned warmwater shrimp and prawn 
products.
    Therefore, in accordance with section 736(a)(1) of the Act, the 
Department will direct U.S. Customs and Border Protection (CBP) to 
assess, upon further instruction by the Department, antidumping duties 
equal to the amount by which the normal value of the merchandise 
exceeds the export price of the merchandise for all relevant entries of 
certain frozen warmwater shrimp from Ecuador, except for entries of 
merchandise produced by Expalsa. These antidumping duties will be 
assessed on all unliquidated entries of certain frozen warmwater shrimp 
from Ecuador, except for entries of Expalsa merchandise, entered, or 
withdrawn from the warehouse, for consumption on or after August 4, 
2004, the date on which the Department published its Notice of 
Preliminary Determination of Sales at Less Than Fair Value and 
Postponement of Final Determination: Certain Frozen and Canned 
Warmwater Shrimp from Ecuador, (``Preliminary Determination''), 69 FR 
47091 (August 4, 2004).
    On or after the date of publication of this antidumping duty order 
in the Federal Register, CBP will require, at the same time that 
importers would normally deposit estimated duties on this merchandise, 
a cash deposit equal to the estimated weighted-average dumping margins 
as listed below. The ``all others'' rate applies to all exporters of 
subject merchandise not listed specifically. We determine that the 
following weighted-average margin percentages exist for the POI:

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                Manufacturer/exporter                     Original Final Margin         Amended Final Margin
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Exportadora de Alimentos S.A. (Expalsa).............                         2.62%            1.97% (de minimis)
Exporklore S.A. (Exporklore)........................                         2.35%                         2.48%
Promarisco S.A. (Promarisco)........................                         4.48%                         4.42%
All Others Rate.....................................                         3.26%                         3.58%
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Scope of Order

    The scope of this 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,\2\ deveined or not deveined, cooked or

[[Page 5158]]

raw, or otherwise processed in frozen form.
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    \2\ ``Tails'' in this context means the tail fan, which includes 
the telson and the uropods.
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    The frozen warmwater shrimp and prawn products included under 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, 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 1605.20.10.20); 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 subheading 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) canned warmwater shrimp and prawns (HTS 
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 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 par-fried.
    The products covered by this investigation 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 this order is 
dispositive.

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we are 
directing CBP to continue to suspend liquidation of all entries of 
certain frozen warmwater shrimp from Ecuador, except for entries of 
merchandise produced by Expalsa, which has a de minimis margin and thus 
is excluded from the antidumping duty order. CPB shall require a cash 
deposit equal to the estimated amount by which the normal value exceeds 
the U.S. price as indicated in the chart above. CBP shall discontinue 
the suspension of liquidation on canned shrimp products, as well as on 
frozen warmwater shrimp produced by Expalsa, and refund any cash 
deposits made or bonds posted with respect to this merchandise. These 
instructions suspending liquidation will remain in effect until further 
notice. This amended determination and order is issued and published 
pursuant to sections 735(d), 736(a) of the Act, and 19 CFR 351.211.

    Dated: January 26, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. E5-373 Filed 1-31-05; 8:45 am]
BILLING CODE: 3510-DS-S