[Federal Register Volume 72, Number 176 (Wednesday, September 12, 2007)]
[Notices]
[Pages 52070-52073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18041]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-331-802]


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 (202) 482-
4136 and (202) 482-3773, 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,

[[Page 52071]]

shell-on or peeled, tail-on or tail-off,\1\ deveined or not deveined, 
cooked or raw, or otherwise processed in frozen form.
---------------------------------------------------------------------------

    \1\ ``Tails'' in this context means the tail fan, which includes 
the telson and the uropods.
---------------------------------------------------------------------------

    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

[[Page 52072]]

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:

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

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

------------------------------------------------------------------------
                                                                Margin
                    Manufacturer/Exporter                     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:

------------------------------------------------------------------------
                                                                Percent
                    Manufacturer/Exporter                       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

[[Page 52073]]

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
[FR Doc. E7-18041 Filed 9-11-07; 8:45 am]
BILLING CODE 3510-DS-S