[Federal Register Volume 74, Number 149 (Wednesday, August 5, 2009)]
[Notices]
[Pages 39042-39045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18724]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-549-822]
Certain Frozen Warmwater Shrimp From Thailand: Preliminary
Results of Antidumping Duty Changed Circumstances Review and Notice of
Intent to Revoke in Part
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
DATES: Effective Date: August 5, 2009.
SUMMARY: On March 24, 2009, the Department of Commerce (the
[[Page 39043]]
Department) published a notice of initiation of a changed circumstances
review of the antidumping duty order on frozen warmwater shrimp from
Thailand to consider whether it is appropriate to revoke the order in
part with respect to two companies, Phatthana Frozen Food Co., Ltd.
(PFF) and Sea Wealth Frozen Food Co., Ltd. (Sea Wealth), pursuant to
section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), and
19 CFR 351.216(b) and 351.222. See Certain Frozen Warmwater Shrimp from
Thailand: Initiation of Antidumping Duty Changed Circumstances Review,
74 FR 12308 (Mar. 24, 2009) (Initiation Notice). Upon analyzing the
information provided by the two companies, we preliminarily determine
that PFF and Sea Wealth should be revoked from the antidumping duty
order on certain frozen warmwater shrimp from Thailand.
FOR FURTHER INFORMATION CONTACT: Henry Almond; 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) 482-0049.
SUPPLEMENTARY INFORMATION:
Background
On February 1, 2005, the Department published in the Federal
Register an antidumping duty order on certain frozen warmwater shrimp
from Thailand. See Notice of Amended Final Determination of Sales at
Less Than Fair Value and Antidumping Duty Order: Certain Frozen
Warmwater Shrimp From Thailand, 70 FR 5145 (Feb. 1, 2005) (Thai Shrimp
Order).
Subsequent to the issuance of this order, the Thai Government
challenged the Department's practice of offsetting dumped sales with
non-dumped sales in the LTFV investigation of certain frozen warmwater
shrimp from Thailand before the World Trade Organization. In November
2008, the Department initiated a Section 129 proceeding to reconsider
this practice with respect to Thai shrimp, and in January 2009 it
issued a final determination in that proceeding which resulted in the
revocation of the order related to shrimp produced and exported by two
entities--Thai I-Mei and the Rubicon Group. See Implementation of the
Findings of the WTO Panel in United States--Antidumping Measure on
Shrimp From Thailand: Notice of Determination Under Section 129 of the
Uruguay Round Agreements Act and Partial Revocation of the Antidumping
Duty Order on Frozen Warmwater Shrimp From Thailand, 74 FR 5638, 5638
(Jan. 30, 2009) (Section 129 Implementation). For purposes of this
determination the Department defined the Rubicon Group as consisting of
the following nine companies, which were the group members existing at
the time of the LTFV investigation: Andaman Seafood Co., Ltd.,
Chanthaburi Frozen Food Co., Ltd., Chanthaburi Seafoods Co., Ltd.,
Intersia Foods Co., Ltd., Phatthana Seafood Co., Ltd., S.C.C. Frozen
Seafood Co., Ltd., Thailand Fishery Cold Storage Public Co., Ltd., Thai
International Seafoods Co., Ltd., and Wales & Co. Universe Limited. See
Section 129 Implementation, 74 FR at 5639.
On February 5, 2009, the Rubicon Group requested that the
Department conduct an expedited changed circumstances review under 19
CFR 351.221(c)(3)(iii) to consider also revoking PFF and Sea Wealth
from the Thai Shrimp Order. According to the Rubicon Group, although
these two companies were not included in the Department's margin
calculations in the LTFV investigation, the Department has treated them
as part of the Rubicon Group in subsequent segments of this proceeding.
In this request, the Rubicon Group also asked that any revocation for
PFF and Sea Wealth be made effective January 16, 2009, the effective
date of the Section 129 Implementation.
On February 12, 2009, we requested that the Rubicon Group clarify
its changed circumstances review request to identify the relevant
statutory provision under which its request fell. On February 13, 2009,
the Rubicon Group clarified its changed circumstances review request,
stating that it would be appropriate for the Department to evaluate its
request using either a ``collapsing'' analysis under 19 CFR 351.401(a)
or the Department's ``successor-in-interest'' analysis, pursuant to
section 751(b)(1) of the Act and 19 CFR 351.216(b).
On February 18, 2009, we requested further information from the
Rubicon Group with respect to the four factors examined by the
Department in a successor-in-interest determination: Management;
production facilities; supplier relationships; and customer base. On
March 13, 2009, the Rubicon Group submitted the requested information.
On April 29, 2009, we placed documents from the LTFV investigation
relating to the corporate structure of the Rubicon Group as it existed
during the LTFV investigation on the record of this changed
circumstances review. On that date, we also requested additional
information from the Rubicon Group. On May 27, 2009, the Rubicon Group
submitted the requested information.
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.
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\1\ ``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 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
[[Page 39044]]
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.
Preliminary Results of Changed Circumstances Review
Pursuant to section 751(b)(1) of the Act and 19 CFR 351.216, the
Department will conduct a changed circumstances review upon receipt of
information concerning, or request from an interested party for review
of, an antidumping duty order which shows changed circumstances
sufficient to warrant review of the order. In this case, the Department
found that the information submitted by the Rubicon Group provided
evidence of changed circumstances sufficient to warrant a review. See
Initiation Notice, 74 FR at 12309. Thus, in accordance with section
751(b) of the Act, the Department initiated a changed circumstances
review to determine whether the current Rubicon Group is the successor-
in-interest to the Rubicon Group as it existed at the time of the LTFV
investigation. Id. In making a successor-in-interest determination, the
Department examines several factors including, but not limited to,
changes in the following: (1) Management; (2) production facilities;
(3) supplier relationships; (4) customer base. See Brake Rotors From
the People's Republic of China: Final Results of Changed Circumstances
Antidumping Duty Administrative Review, 70 FR 69941 (Nov. 18, 2005);
and Notice of Final Results of Changed-Circumstances Antidumping Duty
Administrative Review: Polychloroprene Rubber From Japan, 67 FR 58
(Jan. 2, 2002). While no single factor or combination of factors will
necessarily provide a dispositive indication of a successor-in-interest
relationship, the Department will generally consider the new company to
be the successor to the previous company if the new company's resulting
operation is not materially dissimilar to that of its predecessor. See
Fresh and Chilled Atlantic Salmon From Norway: Final Results of Changed
Circumstances Antidumping Duty Administrative Review, 64 FR 9979 (Mar.
1, 1999); and Industrial Phosphoric Acid From Israel: Final Results of
Antidumping Duty Changed Circumstances Review, 59 FR 6944 (Feb. 4,
1994). Thus, if the evidence demonstrates that, with respect to the
production and sale of subject merchandise, the new company operates as
the same business entity as the former company, the Department will
accord the new company the same antidumping treatment as its
predecessor.
The Rubicon Group has submitted information demonstrating that PFF
and Sea Wealth are fully integrated into the Rubicon Group by virtue of
being owned and controlled by other Rubicon Group companies and that
the two companies are strategically engaged with the other Rubicon
Group companies in the production and sale of subject merchandise to
the United States. See the July 29, 2009, memorandum from Henry Almond,
Analyst, to James Maeder, Director, entitled, ``Successor-In-Interest
Determination for the Rubicon Group in the Changed Circumstances Review
of Certain Frozen Warmwater Shrimp from Thailand'' at pages 3-6
(Successor Memo). Further, the addition of PFF and Sea Wealth to the
Rubicon Group has not altered the Rubicon Group's production capacity
or significantly changed the Rubicon Group's production facilities. See
the Successor Memo at page 5. Finally, the Rubicon Group continues to
source its shrimp from the same suppliers and sell its shrimp to the
same and similar customers as it did during the POI. See the Successor
Memo at pages 5-6.
Based on the information submitted by the Rubicon Group, we
preliminary find that there have been no significant changes in any of
the four factors outlined above since the POI. Regarding its management
structure, the Rubicon Group has submitted information demonstrating
that PFF and Sea Wealth are fully integrated into the Rubicon Group by
virtue of being owned and controlled by other Rubicon Group companies
and that the two companies are involved with the other Rubicon Group
companies in the production and sale of subject merchandise to the
United States. Because the Rubicon Group has demonstrated that there
has been no change in the management of the Rubicon Group as a result
of the addition of PFF and Sea Wealth, we preliminarily find there has
been no significant change in the management of the Rubicon Group since
the POI. Regarding the Rubicon Group's production capacity and
facilities, although the Rubicon Group has closed one production
facility and opened one new facility since the POI, the group's overall
production capacity and production and packaging processes have not
changed since the POI. Thus, based upon the information submitted by
the Rubicon Group, we preliminarily find that there has been no
significant change in the Rubicion Group's production facilities since
the POI. Regarding the Rubicon Group's supplier relationships, the
Rubicon Group has submitted information demonstrating that its
suppliers and supplier relationships have not changed since the POI.
Accordingly, we preliminarily find that there has been no significant
change in the Rubicon Group's suppliers or supplier relationships since
the POI. Regarding the Rubicon Group's customer base, the Rubicon Group
submitted POI and current customer lists which demonstrate that there
has been no significant change in its customers since the POI. Based
upon this information, we preliminarily find that there has been no
significant change in the Rubicon Group's customer base since the POI.
For further discussion of the four factors, see the Successor Memo at
pages 3-6.
Accordingly, we preliminarily determine that the Rubicon Group in
its current form, including PFF and Sea Wealth, is the successor-in-
interest to the Rubicon Group as it existed during the POI of the LTFV
investigation. Thus, if these preliminary results are adopted in our
final results of this changed circumstances review, we will consider
PFF and Sea Wealth to be part of the Rubicon Group and, therefore,
revoke them from the Thai Shrimp Order.
This finding is consistent with our treatment of these companies as
a single entity in the 06-07 Final Results, the most recently completed
administrative
[[Page 39045]]
review. See Certain Frozen Warmwater Shrimp From Thailand: Final
Results and Final Partial Rescission of Antidumping Duty Administrative
Review, 73 FR 50933, 50937 (Aug. 29, 2008).
Finally, in its changed circumstances review request the Rubicon
Group requested that any resulting revocation for PFF and Sea Wealth be
effective as of January 16, 2009 (the effective date of the Section 129
Implementation). Consistent with our treatment of companies excluded
from antidumping duty orders which are subject to subsequent successor-
in-interest determinations, we will apply this successor-in-interest
determination retroactively to the dates PFF and Sea Wealth were formed
and became part of the Rubicon Group (i.e., August 31, 2005, for PFF
and July 24, 2003, for Sea Wealth). See, e.g., Stainless Steel Wire Rod
From Italy: Notice of Final Results of Changed Circumstances
Antidumping Duty Review, 71 FR 24643, 24644 (Apr. 26, 2006). Because
these dates are prior to January 16, 2009, we find that it is
appropriate to revoke the antidumping duty order with respect to frozen
warmwater shrimp produced and exported by PFF and Sea Wealth as of
January 16, 2009, consistent with our treatment of the other members of
the Rubicon Group.\2\ See Section 129 Implementation, 74 FR at 5639.
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\2\ We note that this revocation will apply to merchandise
produced by any Rubicon Group member and exported by PFF or Sea
Wealth, as well as to merchandise produced by PFF or Sea Wealth and
exported by any other Rubicon Group member.
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Public Comment
Parties wishing to comment on these results must submit briefs to
the Department within 30 days after the publication of this notice in
the Federal Register. Parties will have five days subsequent to this
due date to submit rebuttal briefs. Parties who submit comments or
rebuttal briefs in this proceeding are requested to submit with the
argument: (1) A statement of the issue, and (2) a brief summary of the
argument (no longer than five pages, including footnotes). Any requests
for hearing must be filed within 30 days of the publication of this
notice in the Federal Register. In accordance with 19 CFR 351.216(e),
the Department will issue its final results of review within 270 days
after the date on which the changed circumstances review was initiated
(i.e., no later than December 21, 2009).
We are issuing and publishing this notice in accordance with
sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR 351.216.
Dated: July 29, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-18724 Filed 8-4-09; 8:45 am]
BILLING CODE 3510-DS-P