[Federal Register Volume 75, Number 123 (Monday, June 28, 2010)]
[Notices]
[Pages 36635-36637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15639]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-802]
Certain Frozen Warmwater Shrimp From the Socialist Republic of
Vietnam: Rescission of New Shipper Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting a
new shipper review of the antidumping duty order on certain frozen
warmwater shrimp from the Socialist Republic of Vietnam (``Vietnam'')
with respect to Nhat Duc Co., Ltd. (``Nhat Duc'') covering the period
of review (``POR'') of February 1, 2008, through January 31, 2009. See
Notice of Amended Final Determination of Sales at Less Than Fair Value
and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From the
Socialist Republic of Vietnam, 70 FR 5152 (February 1, 2005) (``Shrimp
Order''). We announced our preliminary intent to rescind the new
shipper review for Nhat Duc, finding that Nhat Duc's sole U.S. sale
during the POR was non-bona fide, and, therefore, Nhat Duc had no
reviewable sales during the POR. See Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam: Preliminary Intent to Rescind
New Shipper Review, 75 FR 3446 (January 21, 2010) (``Preliminary
Rescission''). We have analyzed the comments received, and we have made
no changes to the Preliminary Rescission.
DATES: Effective Date: June 28, 2010.
FOR FURTHER INFORMATION CONTACT: Toni Dach or Paul Walker, AD/CVD
Operations, Office 9, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
1655 or (202) 482-0413, respectively.
SUPPLEMENTARY INFORMATION:
Case History
On January 21, 2010, the Department published in the Federal
Register the Preliminary Rescission. On March 2, 2010, Nhat Duc filed
comments regarding the Department's Preliminary Rescission. On March 8,
2010, the Ad Hoc Shrimp Trade Action Committee (``domestic
producers''), filed comments regarding the Department's Preliminary
Rescission. On April 20, 2010, the Department extended the time limit
for the completion of the final results of
[[Page 36636]]
this new shipper review by 30 days. See Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam: Extension of Final Results of
Antidumping Duty New Shipper Review, 75 FR 20563 (April 20, 2010). On
May 18, 2010, the Department fully extended the time limit for the
completion of the final results of this new shipper review by an
additional 30 days. See Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam: Extension of Final Results of
Antidumping Duty New Shipper Review, 75 FR 27705 (May 18, 2010).
Scope of the Order
The scope of the 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 the 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 the 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 the 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 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 the 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 the order is
dispositive.
Analysis of Comments Received
Issues raised in the comments by Nhat Duc and domestic producers
are addressed in the concurrent Issues and Decision Memorandum
(``Issues and Decision Memo''), which is hereby adopted by this
notice.\2\ A list of the issues which Nhat Duc and domestic producers
raised and to which we respond in the Issues and Decision Memo is
attached to this notice as an Appendix. The Issues and Decision Memo is
a public document and is on file in the Central Records Unit, Main
Commerce Building, Room 1117, and is accessible on the Web at http://www.trade.gov/ia. The paper copy and electronic version of the
memorandum are identical in content.
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\2\ In addition, due to the proprietary nature of much of the
information involved in company specific discussions, the Department
has addressed certain issues in a separate proprietary memorandum.
See Antidumping Duty New Shipper Review of Certain Frozen Warmwater
Shrimp from the Socialist Republic of Vietnam: Bona Fide Nature of
the Sale Under Review for Nhat Duc Co., Ltd.: Price of the Sale and
Subsequent U.S. Sales.
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Rescission of Review
In evaluating whether or not a sale is commercially reasonable, and
therefore bona fide, the Department has considered, inter alia, such
factors as (1) The timing of the sale; (2) the price and quantity; (3)
the expenses arising from the transaction; (4) whether the goods were
resold at a profit; and (5) whether the transaction was at arms-length.
See e.g., Tianjin Tiancheng Pharmaceutical Co., Ltd. v. U.S., 366 F.
Supp. 2d 1246, 1250 (CIT 2005) (``TTPC''), citing Am. Silicon Techs. v.
U.S., 110 F. Supp. 2d 992, 995 (CIT 2000). However, the analysis is not
limited to these factors alone. Id. The Department examines a number of
factors, all of which may speak to the commercial realities surrounding
the sale of subject merchandise. While some bona fide issues may share
commonalities across various Department cases, each one is company-
specific and may vary with the facts surrounding each sale. See Certain
Preserved Mushrooms From the People's Republic of China: Final Results
and Partial Rescission of the New Shipper Review and Final Results and
Partial Rescission of the Third Antidumping Duty Administrative Review,
68 FR 41304 (July 11, 2003) and accompanying Issues and Decision
Memorandum at Comment 2. The weight given to each factor considered
will depend on the circumstances surrounding the sale. See TTPC at
1263.
As discussed in detail in the Issues and Decision Memo, the
Department has determined that the sale made by Nhat Duc was not bona
fide, as it is not typical of Nhat Duc's usual commercial practices or
commercially reasonable. Further, the Department is unable to analyze
whether the sale was conducted on an arm's-length basis. The Department
reached this conclusion based on the totality of the circumstances,
namely: (a) The atypical nature of Nhat Duc's POR pricing; (b) the
timing and extent of payment receipt for Nhat Duc's single POR sale;
(c) the existence of undisclosed sales subsequent to Nhat Duc's single
POR sale; (d) the atypical nature of Nhat Duc's production timeline for
its POR U.S. sale; (e) irregularities in Nhat Duc's
[[Page 36637]]
sales negotiation correspondence and the unverifiable nature of this
correspondence; and (f) the unverifiable nature of Nhat Duc's founding
capital sources.
Nhat Duc only made a single, non-bona fide sale during the POR.
Therefore, the Department is rescinding this review because there are
no reviewable sales during the POR. See TTCP at 1249. Because the
Department is rescinding the new shipper review, we are not making a
determination as to whether Nhat Duc qualifies for a separate rate.
Therefore, Nhat Duc will remain part of the Vietnam-wide entity.
Cash Deposit Rates
The following cash deposit requirements continue to apply for all
shipments of subject merchandise from Nhat Duc entered, or withdrawn
from warehouse: (1) For subject merchandise produced and exported by
Nhat Duc, the cash deposit rate will continue to be the Vietnam-wide
rate (i.e., 25.76 percent); (2) for subject merchandise exported by
Nhat Duc but not manufactured by Nhat Duc, the cash deposit rate will
continue to be the Vietnam-wide rate (i.e., 25.76 percent); and (3) for
subject merchandise manufactured by Nhat Duc, but exported by any other
party, the cash deposit rate will be the rate applicable to the
exporter. These cash deposit requirements shall remain in effect until
further notice.
Administrative Protective Orders
This notice also serves as a reminder to parties subject to
administrative protective orders (``APO'') of their responsibility
concerning the return or destruction of proprietary information
disclosed under APO in accordance with 19 CFR 351.305, which continues
to govern business proprietary information in this segment of the
proceeding. Timely written notification of the return/destruction of
APO materials or conversion to judicial protective order is hereby
requested. Failure to comply with the regulations and terms of an APO
is a violation which is subject to sanction.
We are issuing and publishing this determination in accordance with
sections 751(a)(2)(B) and 777(i) of the Act, and 19 CFR 351.214(h) and
351.221(b)(5).
Dated: June 18, 2010.
Paul Piquado,
Acting Deputy Assistant Secretary for Import Administration.
Appendix
List of Comments and Issues in the Issues and Decision Memorandum
Comment: Bona Fide Nature of Nhat Duc's POR Sale.
[FR Doc. 2010-15639 Filed 6-25-10; 8:45 am]
BILLING CODE 3510-DS-P