[Federal Register Volume 75, Number 49 (Monday, March 15, 2010)]
[Notices]
[Pages 12175-12188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5590]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-533-840]
Certain Frozen Warmwater Shrimp from India: Preliminary Results
of Antidumping Duty Administrative Review, Partial Rescission of
Review, Notice of Intent to Rescind Review in Part, and Notice of
Intent to Revoke Order in Part
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (Department) is conducting an
administrative review of the antidumping duty order on certain frozen
warmwater shrimp (shrimp) from India with respect to 159 companies.\1\
The respondents which the Department selected for individual
examination are Devi Sea Foods Limited (Devi), Falcon Marine Exports
Limited (Falcon), and the Liberty Group.\2\ The respondents which were
not selected for individual examination are listed in the ``Preliminary
Results of Review'' section of this notice. This is the fourth
[[Page 12176]]
administrative review of this order. The period of review (POR) is
February 1, 2008, through January 31, 2009.
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\1\ This figure does not include those companies for which the
Department is rescinding the administrative review.
\2\ The Liberty Group consists of the following companies: Devi
Marine Food Exports Private Limited, Kader Exports Private Limited,
Kader Investment and Trading Company Private Limited, Liberty Frozen
Foods Private Limited, Liberty Oil Mills Ltd., Premier Marine
Products, and Universal Cold Storage Private Limited (collectively,
``Liberty Group'').
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We preliminarily determine that sales made by Devi have not been
made at below normal value (NV), while those made by Falcon and the
Liberty Group have been made at below NV, and, therefore, are subject
to antidumping duties. In addition, based on the preliminary results
for the respondents selected for individual examination, we have
preliminarily determined a margin for those companies that were not
individually examined. Finally, we have also preliminarily determined
to revoke the antidumping duty order with respect to shrimp from India
produced and exported by Devi.
If the preliminary results are adopted in our final results of
administrative review, we will instruct U.S. Customs and Border
Protection (CBP) to assess antidumping duties on all appropriate
entries. Interested parties are invited to comment on the preliminary
results.
EFFECTIVE DATE: March 15, 2010.
FOR FURTHER INFORMATION CONTACT: Henry Almond or Blaine Wiltse, 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 or (202) 482-6345, respectively.
SUPPLEMENTARY INFORMATION:
Background
In February 2005, the Department published in the Federal Register
an antidumping duty order on certain frozen warmwater shrimp from
India. See Notice of Amended Final Determination of Sales at Less Than
Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp
from India, 70 FR 5147 (Feb. 1, 2005) (Shrimp Order). On February 4,
2009, the Department published in the Federal Register a notice of
opportunity to request an administrative review of the antidumping duty
order of certain frozen warmwater shrimp from India for the period
February 1, 2008, through January 31, 2009. See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation;
Opportunity to Request Administrative Review, 74 FR 6013 (Feb. 4,
2009). In response to timely requests from interested parties pursuant
to 19 CFR 351.213(b)(1) and (2) to conduct an administrative review of
the U.S. sales of shrimp by numerous Indian producers/exporters, the
Department published a notice of initiation of administrative review
for 332 companies. See Certain Frozen Warmwater Shrimp From Brazil,
India and Thailand: Notice of Initiation of Administrative Reviews, 74
FR 15699 (Apr. 7, 2009) (Initiation Notice).
In the Initiation Notice, we indicated that the Department would
select mandatory respondents for individual examination based upon CBP
entry data, and that we would limit the respondents selected for
individual examination in accordance with section 777A(c)(2) of the
Tariff Act of 1930, as amended (the Act). See Initiation Notice, 74 FR
at 15708. In April 2009, we received comments on the issue of
respondent selection from the Marine Products Export Development
Authority, the Seafood Exporters Association of India, and the Embassy
of India, as well as from Devi, Falcon, the Domestic Processors,\3\ and
the petitioner.\4\
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\3\ The Domestic Processors consist of the American Shrimp
Processors Association and the Louisiana Shrimp Association.
\4\ The petitioner is the Ad Hoc Shrimp Trade Action Committee.
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In April and May 2009, we received statements from 46 companies
that indicated that they had no shipments of subject merchandise to the
United States during the POR. During these months, we also received
requests from the petitioner and Domestic Processors requesting that
the Department determine whether antidumping duties had been absorbed
by the respondents that were to be required to participate in this
review.
In May 2009, after considering the resources available to the
Department, we determined that it was not practicable to examine all
exporters/producers of subject merchandise for which a review was
requested. See Memorandum to James Maeder, Director, Office 2, AD/CVD
Operations, from Holly Phelps, Analyst, Office 2, AD/CVD Operations,
entitled: ``2008-2009 Antidumping Duty Administrative Review of Certain
Frozen Warmwater Shrimp from India: Selection of Respondents for
Individual Review,'' dated May 13, 2009 (Respondent Selection Memo). As
a result, we selected the three largest producers/exporters of certain
frozen warmwater shrimp from India during the POR (i.e., Devi, Falcon,
and the Liberty Group) for individual examination in this segment of
the proceeding. Accordingly, we issued the antidumping duty
questionnaire to these companies on May 14, 2009.
In June and July 2009, we received responses from Devi, Falcon, and
the Liberty Group to section A (i.e., the section related to general
information), sections B and C (i.e., the sections covering comparison
market and U.S. sales, respectively), and section D (i.e., the section
covering cost of production (COP)) of the questionnaire. Also in July
2009, the petitioner withdrew its requests for review of 144 companies,
in accordance with 19 CFR 351.213(d)(1), and we issued a supplemental
questionnaire to the Liberty Group regarding the products sold in its
third country markets.
In August and September 2009, we issued supplemental sales and cost
questionnaires to each respondent, and Devi and the Liberty Group
responded to these questionnaires. Also, in September 2009, the
Department requested that Devi submit proof that its unaffiliated
purchasers paid the antidumping duties assessed on its POR entries in
order to determine whether duty absorption occurred.
On October 20, 2009, the Department extended the preliminary
results in the current review to no later than March 1, 2010. See
Certain Frozen Warmwater Shrimp From India and Thailand: Notice of
Extension of Time Limits for the Preliminary Results of the Fourth
Administrative Reviews, 74 FR 53700 (Oct. 20, 2009).
From October through December 2009, the Department issued
additional supplemental sales questionnaires to Devi and Falcon, as
well as a supplemental cost questionnaire to Devi. Also, in these
months each of the respondents submitted responses to each of the
Department's outstanding requests for information, and Devi responded
to the Department's duty absorption inquiry. From December 9 through
11, 2009, the Department verified the U.S. sales data reported by
Devi's U.S. affiliate, Devi Seafoods, Inc. (Devi Inc.).
In January 2010, the Department issued a second supplemental sales
questionnaire and a third supplemental cost questionnaire to the
Liberty Group, and the Liberty Group responded to these questionnaires.
In February 2010, the Department verified the sales data reported
by Devi in India and selected Japan as the appropriate third country
comparison market for both Falcon and the Liberty Group. See the
Memorandum to James Maeder, Director, Office 2, AD/CVD Operations, from
Holly Phelps, Analyst, Office 2, AD/CVD Operations, entitled, ``2008-
2009 Antidumping Duty Administrative Review on Certain Frozen Warmwater
Shrimp from India - Selection of the Appropriate Third Country Market
for Falcon Marine Exports Limited,'' dated February 26, 2010 (Third
Country Market Memo).
[[Page 12177]]
Also in this month, Falcon and the Liberty Group submitted updated
sales information at the Department's request. In March 2010, the
Department plans to verify the cost data reported by Devi in India.
As explained in the memorandum from the Deputy Assistant Secretary
for Import Administration, the Department has exercised its discretion
to toll deadlines for the duration of the closure of the Federal
Government from February 5, through February 12, 2010. Thus, all
deadlines in this segment of the proceeding have been extended by seven
days. The revised deadline for the preliminary results of this review
is now March 8, 2010. See Memorandum to the Record from Ronald
Lorentzen, DAS for Import Administration, regarding ``Tolling of
Administrative Deadlines As a Result of the Government Closure During
the Recent Snowstorm,'' dated February 12, 2010.
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,\5\ deveined or not deveined, cooked or raw, or
otherwise processed in frozen form.
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\5\ ``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 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 ten 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.
Partial Rescission of Review
On July 6, 2009, the petitioner withdrew its requests for an
administrative review for each of the following 133 companies within
the time limits set forth in 19 CFR 351.213(d)(1):
1) A.S. Marine Industries Pvt Ltd.
2) Adani Exports Ltd
3) Aditya Udyog
4) Agri Marine Exports Ltd.
5) AL Mustafa Exp & Imp
6) Alapatt Marine Exports
7) All Seas Marine P. Ltd.
8) Alsa Marine & Harvests Ltd.
9) Ameena Enterprises
10) Amison Foods Ltd.
11) Amison Seafoods Ltd.
12) Anjani Marine Traders
13) Aqua Star Marine Foods
14) Arsha Seafood Exports Pvt. Ltd.
15) ASF Seafoods
16) Ashwini Frozen Foods
17) Aswin Associates
18) Balaji Seafood Exports I Ltd.
19) Bell Foods (Marine Division)
20) Bharat Seafoods
21) Bhisti Exports
22) Bilal Fish Suppliers
23) Capital Freezing Complex
24) Cham Exports Ltd.
25) Cham Ocean Treasures Co., Ltd.
26) Cham Trading Organization
27) Chand International
28) Cherukattu Industries (Marine Div.)
29) Danda Fisheries
30) Dariapur Aquatic Pvt. Ltd.
31) Deepmala Marine Exports
32) Dhanamjaya Impex P. Ltd.
33) Dorothy Foods
34) El-Te Marine Products
35) Excel Ice Services/Chirag Int'l
36) Firoz & Company
37) Freeze Engineering Industries (Pvt. Ltd.)
38) Gajula Exim P. Ltd.
39) Gausia Cold Storage P. Ltd.
40) Global Sea Foods & Hotel Ltd.
41) Goan Bounty
42) Gold Farm Foods (P) Ltd.
43) Golden Star Cold Storage
44) Gopal Seafoods
45) Gtc Global Ltd.
46) HA & R Enterprises
47) Hanswati Exports P. Ltd.
48) HMG Industries Ltd.
49) Honest Frozen Food Company
50) India CMS Adani Exports
51) India Seafoods
52) Indian Seafood Corporation
53) Interfish
54) InterSea Exports Corporation
55) J R K Seafoods Pvt. Ltd.
56) Kaushalya Aqua Marine Product Exports Pvt. Ltd.
57) Keshodwala Foods
58) Key Foods
59) King Fish Industries
60) Konkan Fisheries Pvt. Ltd.
61) Lakshmi Marine Products
62) Lansea Foods Pvt. Ltd.
63) Laxmi Narayan Exports
64) Lotus Sea Farms
65) M K Exports
66) M. R. H. Trading Company
67) Malabar Marine Exports
[[Page 12178]]
68) Mamta Cold Storage
69) Marina Marine Exports
70) Marine Food Packers
71) Miki Exports International
72) Mumbai Kamgar MGSM Ltd.
73) N.C. Das & Company
74) Naik Ice & Cold Storage
75) Nas Fisheries Pvt. Ltd.
76) National Seafoods Company
77) National Steel
78) National Steel & Agro Ind.
79) New Royal Frozen Foods
80) Noble Aqua Pvt. Ltd.
81) Nsil Exports
82) Omsons Marines Ltd.
83) Padmaja Exports
84) Partytime Ice Pvt. Ltd.
85) Philips Foods India Pvt. Ltd.
86) R K Ice & Cold Storage
87) R F. Exports
88) Rahul Foods (GOA)
89) Rahul International
90) Raj International
91) Ramalmgeswara Proteins & Foods Ltd.
92) Rameshwar Cold Storage
93) Ravi Frozen Foods Ltd.
94) Regent Marine Industries
95) Relish Foods
96) Royal Link Exports
97) Rubian Exports
98) Ruby Marine Foods
99) Ruchi Worldwide
100) S K Exports (P) Ltd.
101) SS International
102) Sabri Food Products
103) Salet Seafoods Pvt Ltd.
104) Samrat Middle East Exports (P) Ltd.
105) Sarveshwari Ice & Cold Storage P Ltd.
106) Satyam Marine Exports
107) Sea Rose Marines (P) Ltd.
108) Sealand Fisheries Ltd.
109) Seaperl Industries
110) Sharat Industries Ltd.
111) Shimpo Exports
112) Shipper Exporter National Steel
113) Siddiq Seafoods
114) Skyfish
115) SLS Exports Pvt. Ltd.
116) Sonia Fisheries
117) Sourab
118) Sreevas Export Enterprises
119) Sri Sidhi Freezers & Exporters Pvt. Ltd.
120) Star Fish Exports
121) Supreme Exports
122) The Canning Industries (Cochin) Ltd.
123) Torry Harris Seafoods Pvt. Ltd.
124) Tri Marine Foods Pvt. Ltd.
125) Trinity Exports
126) Tri-Tee Seafood Company
127) Ulka Seafoods (P) Ltd.
128) Upasana Exports
129) V Marine Exports
130) Varnita Cold Storage
131) Vijayalaxmi Seafoods
132) Winner Seafoods
133) Z A Food Products
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an
administrative review if a party that requested a review withdraws the
request within 90 days of the date of publication of the notice of
initiation. The petitioner's requests for administrative review were
timely withdrawn for all 133 companies listed above, in accordance with
19 CFR 351.213 (d)(1). Therefore, because no other interested party
requested a review for these companies, in accordance with 19 CFR
351.213(d)(1), the Department is rescinding this review on 133 of the
companies for which the request for administrative review was
withdrawn.\6\
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\6\ In addition to the 133 companies noted above, the petitioner
also withdrew its request for administrative review for the
following 11 companies: 1) Baby Marine (Eastern) Exports, 2) Baby
Marine Exports, 3) Baby Marine Products, 4) Baraka Overseas Traders,
5) Gajula Exim P. Ltd., 6) Kadalkanny Frozen Foods, 7) Premier
Exports International, 8) Premier Marine Foods, 9) Sagar Samrat
Seafoods, 10) Uniroyal Marine Exports Ltd., and 11) Vaibhav Sea
Foods. However, there are outstanding review requests from other
interested parties for each of these companies. Therefore, the
review cannot be rescinded with respect to these companies based on
the petitioner's withdrawal of its request for review. Nonetheless,
pursuant to 19 CFR 351.213(d)(3), we are preliminarily rescinding
the review for the first five companies listed above because they
reported that they had no shipments of subject merchandise during
the POR. See below for further discussion.
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Notice of Intent to Rescind Review in Part
Furthermore, in accordance with 19 CFR 351.213(d)(3), we
preliminarily intend to rescind the review in part with respect to the
following 35 companies because these companies\7\ certified that they
had no shipments or sales of subject merchandise during the POR:
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\7\ The Department also received statements of no shipment form
the following three companies: Diamond Seafood Exports, Edhayam
Frozen Foods Pvt. Ltd., and Theva & Company. However, the Department
collapsed the members of the Kadalkanny Group, which consists of
these three companies and Kadalkanny Frozen Foods. See Certain
Frozen Warmwater Shrimp from India: Partial rescission of Ntidumping
Duty Administrative Review, 73 FR 6125, 6126 (Feb. 1, 2008) (AR2
Rescission Notice). Therefore, because there remains an outstanding
request for review for Kadalkanny Frozen Foods, we are not
rescinding the review for the Kadalkanny Group collectively, or
these three companies individually.
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1) Abad Fisheries
2) Allanna Frozen Foods Pvt. Ltd.
3) Allansons Ltd.
4) Amulya Sea Foods
5) Anjaneya Seafoods
6) Baby Marine (Eastern) Exports
7) Baby Marine Exports
8) Baby Marine International
9) Baby Marine Products
10) Baby Marine Sarass
11) Baraka Overseas Traders
12) Blue Water Foods & Exports P. Ltd.
13) BMR Exports
14) Coreline Exports
15) Frigerio Conserva Allana Ltd.
16) G A Randerian Ltd.
17) G.K S Business Associates Pvt. Ltd.
18) Hiravata Ice & Cold Storage
19) Hiravati Exports Pvt. Ltd.
20) Hiravati International Pvt. Ltd. (located at Jawar Naka, Porbandar,
Gujarat, 360 575, India)
21) Indian Aquatic Products
22) Innovative Foods Limited
23) Interseas
24) K R M Marine Exports Ltd.
25) K V Marine Exports
26) Kalyanee Marine
27) L. G Seafoods
28) Lewis Natural Foods Ltd.
29) Libran Cold Storages (P) Ltd.
30) Lourde Exports
31) Sanchita Marine Products P Ltd
32) Silver Seafood
33) Sterling Foods
34) Veejay Impex
35) Veraval Marines & Chemicals P Ltd.
We reviewed CBP data and confirmed that there were no entries of
subject merchandise exported by any of these companies. Consequently,
in accordance with 19 CFR 351.213(d)(3) and consistent with our
practice, we preliminarily intend to rescind our review for the 35
companies listed above. See e.g., Certain Frozen Warmwater Shrimp from
the Socialist Republic of Vietnam: Preliminary Results, Preliminary
Partial Rescission and Request for Revocation, In Part, of the Third
Administrative Review, 74 FR 10009, 10011 (Mar. 9, 2009), unchanged in
Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam:
Final Results and Final Partial Rescission of Antidumping Duty
Administrative Review, 74 FR 47191 (Sept. 15, 2009); see also Certain
Frozen Warmwater Shrimp from India: Partial Rescission of Antidumping
Duty Administrative Review, 73 FR 77610 (Dec. 19, 2008).
Additionally, the Department initiated separate administrative
reviews for the following companies with the same name but different
addresses: 1) Devi Fisheries Limited; 2) Premier Marine Products; 3)
Ram's Assorted Cold Storage Ltd.; 4) Satya Sea Foods Pvt. Limited; and
5) Usha Sea Foods. Specifically, these are companies for which we
initiated multiple administrative reviews because the petitioner and/or
the respondent listed separate addresses for the same company in their
review requests. See Initiation Notice, 74 FR at 15700-15704. The
Department sent letters asking for clarification of the multiple
addresses and same company names. We received
[[Page 12179]]
responses from the companies listed above verifying the correct
addresses and indicating that the company names have been duplicated.
Therefore, the Department is also preliminarily rescinding the review
with respect to these duplicate company names (i.e., these companies
will be included in the current administrative review only once).
Finally, the Department also initiated separate administrative
reviews for Calcutta Seafoods and Calcutta Seafoods Pvt. Ltd., two
companies with the same address but different names. Subsequently, we
received information from Calcutta Seafoods Pvt. Ltd. demonstrating
that Calcutta Seafoods no longer exists, and that this entity is
currently doing business as Calcutta Seafoods Pvt. Ltd. Consequently,
we are also preliminarily rescinding our review with respect to
Calcutta Seafoods, in accordance with our practice. See AR2 Rescission
Notice, 73 FR at 6127.
Notice of Intent To Revoke Order, in Part
As noted above, on February 27, 2009, Devi requested revocation of
the antidumping duty order with respect to its sales of subject
merchandise, pursuant to 19 CFR 352.672(e). This request was
accompanied by certifications, pursuant to 19 CFR 352.672(e)(1) that:
1) Devi has sold the subject merchandise at not less than NV during the
current POR and that it will not sell the merchandise at less than NV
in the future; and 2) Devi sold subject merchandise to the United
States in commercial quantities for a period of at least three
consecutive years. Devi also agreed to immediate reinstatement of the
antidumping duty order, as long as any exporter or producer is subject
to the order, if the Department concludes that, subsequent to its
revocation, it sold the subject merchandise at less than NV.
Pursuant to section 751(d) of the Act, the Department ``may revoke,
in whole or in part'' an antidumping duty order upon completion of a
review under section 751(a) of the Act. In determining whether to
revoke an antidumping duty order in part, the Department considers: 1)
whether the company in question has sold subject merchandise at not
less than NV for a period of at least three consecutive years; 2)
whether the company has agreed in writing to its immediate
reinstatement in the order, as long as any exporter or producer is
subject to the order, if the Department concludes that the company,
subsequent to revocation, sold the subject merchandise at less than NV;
and 3) whether the continued application of the antidumping duty order
is otherwise necessary to offset dumping. See 19 CFR 352.672(b)(2)(i);
see also Certain Steel Concrete Reinforcing Bars From Turkey; Final
Results of Antidumping Duty Administrative Review and New Shipper
Review and Determination To Revoke in Part, 72 FR 62630, 62631 (Nov. 6,
2007). If, based on these criteria, the Department determines that the
antidumping order as to that company is no longer warranted, pursuant
to section 751(d) of the Act and 19 CFR 352.672(b)(2)(ii), the
Department will revoke the order as it applies to that company.
We have preliminarily determined that the request from Devi meets
all of the criteria under 19 CFR 352.672(e)(1). Our preliminary margin
calculation confirms that Devi sold shrimp at not less than NV during
the current review period. See the ``Preliminary Results of the
Review'' section below. In addition, we have confirmed that Devi sold
shrimp at not less than NV in the two previous administrative reviews
in which it was individually examined (i.e., its dumping margins were
de minimis). See Certain Frozen Warmwater Shrimp from India: Final
Results and Partial Rescission of Antidumping Duty Administrative
Review, 74 FR 33409, 33411 (July 13, 2009) (2007-2008 Final Results);
see also Certain Frozen Warmwater Shrimp from India: Final Results and
Partial Rescission of Antidumping Duty Administrative Review, 73 FR
40492, 40495 (July 15, 2008) (2006-2007 Final Results).
Based on our examination of the sales data submitted by Devi, we
preliminarily determine that it sold the subject merchandise in the
United States in commercial quantities in each of the consecutive years
cited by Devi to support its request for revocation. See the Memorandum
to the File, from Henry Almond, Analyst, Office 2, AD/CVD Operations,
entitled, ``Analysis of Commercial Quantities for Devi Sea Foods
Limited's Request for Revocation,'' dated March 8, 2010. Thus, we
preliminarily find that Devi had de minimis dumping margins for its
last three administrative reviews and sold subject merchandise in
commercial quantities in each of these years. Also, we preliminarily
determine, pursuant to section 751(d) of the Act and 19 CFR
351.222(b)(2), that the application of the antidumping duty order with
respect to Devi is no longer warranted for the following reasons: 1)
the company had a zero or de minimis margin for a period of at least
three consecutive years; 2) the company has agreed to immediate
reinstatement of the order if the Department finds that it has resumed
making sales at less than NV; and, 3) the continued application of the
order is not otherwise necessary to offset dumping. Therefore, we
preliminarily determine that subject merchandise produced and exported
by Devi qualifies for revocation from the antidumping duty order on
frozen warmwater shrimp from India and that the order with respect to
such merchandise should be revoked. If these preliminary findings are
affirmed in our final results, we will revoke this order, in part, with
respect to shrimp produced and exported by Devi and, in accordance with
19 CFR 351.222(f)(3), terminate the suspension of liquidation for any
of the merchandise in question that is entered, or withdrawn from
warehouse, for consumption on or after February 1, 2009, and instruct
CBP to release any cash deposits for such entries.
Duty Absorption
On April 21, 2009, and May 7, 2009, the petitioner and the Domestic
Processors, respectively, requested that the Department determine
whether antidumping duties had been absorbed during the POR. Section
751(a)(4) of the Act directs the Department, if requested, to determine
during an administrative review initiated two or four years after the
publication of the order, whether antidumping duties have been absorbed
by a foreign producer or exporter, if the subject merchandise is sold
in the United States through an affiliated importer. In the current
review, only one of the three respondents, Devi, sold to the United
States through an importer that is affiliated within the meaning of
section 751 (a)(4) of the Act.
Section 351.213(j)(1) of the Department's regulations provides that
during any administrative review covering all or part of a period
falling between the first and second or third and fourth anniversary of
the publication of an antidumping order, the Department will conduct a
duty absorption review, if requested by a domestic interested party.
The current administrative review was initiated four years after the
publication of the Shrimp Order and the request was timely submitted to
the Department by domestic interested parties. Accordingly, we are able
to make a duty absorption determination in this segment of the
proceeding.
In determining whether the antidumping duties have been absorbed by
the respondents during the POR, we examine the antidumping duties
calculated in the administrative review in which the absorbtion inquiry
is requested. See 19 CFR 351.213(j)(3). The Department presumes that
the duties
[[Page 12180]]
will be absorbed for those sales that have been made at less than NV.
This presumption can be rebutted with evidence (e.g., an enforceable
agreement between the affiliated importer and unaffiliated purchaser)
that the unaffiliated purchaser will pay the full duty ultimately
assessed on the subject merchandise. See, e.g., Certain Stainless Steel
Butt-Weld Pipe Fittings from Taiwan: Preliminary Results of Antidumping
Duty Administrative Review and Notice of Intent to Rescind, 70 FR
39735, 39737 (July 11, 2005).
On September 24, 2009, we issued a letter to Devi requesting proof
that the company's unaffiliated purchasers would ultimately pay the
antidumping duties to be assessed on entries during the POR. On October
9, 2009, Devi submitted a letter to the Department stating that it had
zero antidumping duties in the previous two administrative reviews and
it anticipated that the Department will determine it had a zero or de
minimis antidumping duty margin during the current POR, and therefore,
there will be no antidumping duties to absorb.
Our preliminary margin calculation shows that Devi sold shrimp at
not less than NV during the current POR. See the ``Preliminary Results
of the Review'' section below. Therefore, consistent with the
Department's finding in Large Newspaper Printing Presses and Components
Thereof, Whether Assembled or Unassembled, From Japan: Final Results of
Antidumping Duty Administrative Review and Partial Rescission of
Antidumping Reviews, 65 FR 7492, 7494 (Feb. 15, 2000), we preliminarily
find that there is no duty absorption applicable to Devi's U.S. sales
because we have preliminarily determined that there is no dumping
margin with respect to Devi's U.S. sales during the current
administrative review.
Comparisons to Normal Value
To determine whether sales of shrimp from India to the United
States were made at less than NV, we compared the export price (EP) or
constructed export price (CEP) to the NV, as described in the
``Constructed Export Price/Export Price'' and ``Normal Value'' sections
of this notice.
Pursuant to sections 773(a)(1)(B)(i) and 777A(d)(2) of the Act, for
Devi, Falcon, and the Liberty Group, we compared the EPs or CEPs of
individual U.S. transactions, as applicable, to the weighted-average NV
of the foreign like product in the appropriate corresponding calendar
month where there were sales made in the ordinary course of trade, as
discussed in the ``Cost of Production Analysis'' section below.
Product Comparisons
In accordance with section 771(16)(A) of the Act, we considered all
products produced by Devi, Falcon, and the Liberty Group covered by the
description in the ``Scope of the Order'' section, above, to be foreign
like products for purposes of determining appropriate product
comparisons to U.S. sales. Pursuant to 19 CFR 351.414(e)(2), we
compared U.S. sales of non-broken shrimp to sales of non-broken shrimp
made in the third country market within the contemporaneous window
period, which extends from three months prior to the month of the first
U.S. sale until two months after the month of the last U.S. sale. Where
a respondent reported sales of broken shrimp in only its comparison
market, we disregarded these sales because we found they were not
comparable to products sold in the United States.
Where there were no sales of identical merchandise in the
comparison market made in the ordinary course of trade to compare to
U.S. sales, according to section 771(16)(B) of the Act, we compared
U.S. sales to sales of the most similar foreign like product made in
the ordinary course of trade. In making the product comparisons, we
matched foreign like products based on the physical characteristics
reported by Devi, Falcon, and the Liberty Group in the following order:
cooked form, head status, count size, organic certification, shell
status, vein status, tail status, other shrimp preparation, frozen
form, flavoring, container weight, presentation, species, and
preservative. Where there were no sales of identical or similar
merchandise, we made product comparisons using constructed value (CV),
as discussed in the ``Calculation of Normal Value Based on Constructed
Value'' section below. See section 773(a)(4) of the Act.
Constructed Export Price/Export Price
For all U.S. sales made by Falcon and the Liberty Group, and for
certain U.S. sales made by Devi, we used EP methodology, in accordance
with section 772(a) of the Act, because the subject merchandise was
sold by the producer/exporter outside of the United States directly to
the first unaffiliated purchaser in the United States prior to
importation and CEP methodology was not otherwise warranted based on
the facts of record.
For the remaining U.S. sales made by Devi, we calculated CEP in
accordance with section 772(b) of the Act because the subject
merchandise was sold for the account of this company by its subsidiary
in the United States to unaffiliated purchasers. We revised the data
reported by Devi to take into account minor corrections found at
verification.
A. Devi
We based EP on packed prices to the first unaffiliated purchaser in
the United States. Where appropriate, we made deductions from the
starting price for discounts in accordance with 19 CFR 351.401(c). We
also made deductions from the starting price for foreign inland freight
expenses, export inspection agency (EIA) fees, foreign brokerage and
handling expenses, various foreign miscellaneous shipment charges,
international freight expenses, terminal handling charges, marine
insurance expenses, U.S. customs duties (including harbor maintenance
fees and merchandise processing fees), U.S. brokerage and handling
expenses, U.S. warehousing expenses, and U.S. inland freight expenses,
where appropriate, in accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(b) of the Act, we calculated CEP for
those sales where the merchandise was first sold (or agreed to be sold)
in the United States before or after the date of importation by or for
the account of the producer or exporter, or by a seller affiliated with
the producer or exporter, to a purchaser not affiliated with the
producer or exporter. We based CEP on the packed delivered prices to
unaffiliated purchasers in the United States. Where appropriate, we
made adjustments for discounts in accordance with 19 CFR 351.401(c). We
made deductions for movement expenses, in accordance with section
772(c)(2)(A) of the Act; these included, where appropriate, foreign
inland freight expenses, EIA fees, foreign brokerage and handling
expenses, various foreign miscellaneous shipment charges, international
freight expenses, terminal handling charges, marine insurance expenses,
U.S. customs duties (including harbor maintenance fees and merchandise
processing fees), U.S. brokerage and handling expenses, U.S. inland
freight expenses (including both freight from port to warehouse and
freight from warehouse to the customer), and U.S. warehousing expenses.
In accordance with section 772(d)(1) of the Act and 19 CFR
351.402(b), we deducted those selling expenses associated with economic
activities occurring in the United States, including direct selling
expenses (i.e., imputed credit expenses, repacking
[[Page 12181]]
expenses, and other direct selling expenses), sales and marketing
allowance expenditures, and indirect selling expenses (including
inventory carrying costs and other indirect selling expenses).
Pursuant to section 772(d)(3) of the Act, we further reduced the
starting price by an amount for profit to arrive at CEP. In accordance
with section 772(f) of the Act, we calculated the CEP profit rate using
the expenses incurred by Devi and its U.S. affiliate on their sales of
the subject merchandise in the United States and the profit associated
with those sales.
B. Falcon
We based EP on packed prices to the first unaffiliated purchaser in
the United States. Where appropriate, we made deductions from the
starting price for discounts in accordance with 19 CFR 351.401(c). We
also made deductions from the starting price for cold storage expenses,
loading and unloading expenses, trailer hire expenses, foreign inland
freight expenses, port charges, export survey charges, terminal
handling charges, other miscellaneous shipment charges, foreign
brokerage and handling expenses, international freight expenses, marine
insurance expenses, U.S. customs duties (including harbor maintenance
fees and merchandise processing fees), and U.S. brokerage and handling
expenses, where appropriate, in accordance with section 772(c)(2)(A) of
the Act.
C. Liberty Group
We based EP on packed prices to the first unaffiliated purchaser in
the United States. Where appropriate, we made deductions from the
starting price for discounts in accordance with 19 CFR 351.401(c). We
made deductions from the starting price for cold storage charges,
inland freight expenses, other shipment and movement expenses, foreign
brokerage and handling expenses, international freight expenses,
terminal handling charges, U.S. customs duties, and U.S. brokerage and
handling expenses, where appropriate, in accordance with section
772(c)(2)(A) of the Act.
Normal Value
A. Home Market Viability and Selection of Comparison Markets
In order to determine whether there was a sufficient volume of
sales in the home market to serve as a viable basis for calculating NV,
we compared the volume of home market sales of the foreign like product
to the volume of U.S. sales of the subject merchandise, in accordance
with section 773(a)(1)(C) of the Act.
We determined that the aggregate volume of home market sales of the
foreign like product for each of the respondents was insufficient to
permit a proper comparison with U.S. sales of the subject merchandise.
For Devi, we used Canada as the comparison market because this was
Devi's only viable comparison market during the POR. For Falcon and the
Liberty Group, we selected Japan as the comparison market because,
among other things, these companies' sales of foreign like product in
Japan were the most similar to the subject merchandise. For further
discussion, see the Third Country Market Memo. Therefore, as the basis
for comparison market sales, we used sales to Canada for Devi, and
sales to Japan for Falcon and the Liberty Group, in accordance with
section 773(a)(1)(C) of the Act and 19 CFR 351.404.
B. Level of Trade
Section 773(a)(1)(B)(i) of the Act states that, to the extent
practicable, the Department will calculate NV based on sales at the
same level of trade (LOT) as the EP or CEP. Sales are made at different
LOTs if they are made at different marketing stages (or their
equivalent). See 19 CFR 351.412(c)(2). Substantial differences in
selling activities are a necessary, but not sufficient, condition for
determining that there is a difference in the stages of marketing. Id;
see also Notice of Final Determination of Sales at Less Than Fair
Value: Certain Cut-to-Length Carbon Steel Plate From South Africa, 62
FR 61731, 61732 (Nov. 19, 1997) (Plate from South Africa). In order to
determine whether the comparison market sales were at different stages
in the marketing process than the U.S. sales, we reviewed the
distribution system in each market (i.e., the chain of distribution),
including selling functions, class of customer (customer category), and
the level of selling expenses for each type of sale.
Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying LOTs
for EP and comparison market sales (i.e., NV based on either home
market or third country prices),\8\ we consider the starting prices
before any adjustments. For CEP sales, we consider only the selling
activities reflected in the price after the deduction of expenses and
profit under section 772(d) of the Act. See Micron Tech., Inc. v.
United States, 243 F.3d 1301, 1314-16 (Fed. Cir. 2001).
---------------------------------------------------------------------------
\8\ Where NV is based on CV, we determine the NV LOT based on
the LOT of the sales from which we derive selling expenses, general
and administrative (G&A) expenses, and profit for CV, where
possible.
---------------------------------------------------------------------------
When the Department is unable to match U.S. sales of the foreign
like product in the comparison market at the same LOT as the EP or CEP,
the Department may compare the U.S. sale to sales at a different LOT in
the comparison market. In comparing EP or CEP sales at a different LOT
in the comparison market, where available data make it possible, we
make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally,
for CEP sales only, if the NV LOT is at a more advanced stage of
distribution than the LOT of the CEP and there is no basis for
determining whether the difference in LOTs between NV and CEP affects
price comparability (i.e., no LOT adjustment was possible), the
Department shall grant a CEP offset, as provided in section
773(a)(7)(B) of the Act. See, e.g., Plate from South Africa, 62 FR at
61732-33.
In this administrative review, we obtained information from each
respondent regarding the marketing stages involved in making the
reported foreign market and U.S. sales, including a description of the
selling activities performed by each respondent for each channel of
distribution. Company-specific LOT findings are summarized below.
1. Devi
Devi reported that it made sales through two channels of
distribution in the United States (i.e., EP sales made directly to
unaffiliated customers and CEP sales via an affiliated reseller);
however, it stated that the selling activities it performed and the
relative level of intensity of each selling activity did not vary by
channel of distribution. Devi reported performing the following selling
functions for its U.S. sales: sales planning, personnel training, sales
promotion, packing, inventory maintenance in India, handling of sales
inquiries, order processing, freight and delivery services (including
pre-shipment inspection, foreign transportation, and export customs
clearance), extension of credit to U.S. customers, providing discounts
and rebates, and providing post-sale warranties and guarantees. These
selling activities can be generally grouped into four selling function
categories for analysis: 1) sales and marketing; 2) freight and
delivery; 3) inventory maintenance and warehousing; and, 4) warranty
and technical support. Accordingly, based on the selling function
categories, we find that Devi performed sales and marketing, freight
and delivery services, inventory maintenance and warehousing, and
[[Page 12182]]
warranty and technical support for all U.S. sales. Because Devi's
selling activities did not vary by distribution channel, we
preliminarily determine that there is one LOT in the U.S. market.
With respect to Canada, Devi reported that it made sales through a
single channel of distribution (i.e., sales made directly to
unaffiliated customers) and that all selling functions were performed
at the same levels of intensity as in the U.S. market. We examined the
selling activities performed for third country sales and found that
Devi performed the following selling functions: sales planning,
personnel training, sales promotion, packing, inventory maintenance in
India, handling of sales inquiries, order processing, freight and
delivery services (including pre-shipment inspection and foreign
transportation), extension of credit to Canadian customers, and
providing post-sale warranties and guarantees. Accordingly, based on
these selling functions noted above, we find that Devi performed sales
and marketing, freight and delivery services, inventory maintenance and
warehousing, and warranty and technical services for third country
sales. Because all third country sales are made through a single
distribution channel and the selling activities to Devi's customers did
not vary within this channel, we preliminarily determine that there is
one LOT in the third country market for Devi.
Finally, we compared the U.S. LOT to the third country market LOT
and found that the selling functions performed for U.S. and third
country market customers do not differ, as Devi performed the same
selling functions at the same relative level of intensity in both
markets. Therefore, we determine that sales to the U.S. and third
country markets during the POR were made at the same LOT, and as a
result, no LOT adjustment or CEP offset is warranted.
2. Falcon
Falcon reported that it made EP sales in the U.S. market to trading
companies and distributors. We examined the selling activities
performed for U.S. sales and found that Falcon performed the following
selling functions: customer contact and price negotiation; order
processing; arranging for freight and the provision of customs
clearance/brokerage services (in India and the United States); cold
storage and inventory maintenance; quality-assurance-related
activities; and banking-related activities. These selling activities
can be generally grouped into four selling function categories for
analysis: 1) sales and marketing; 2) freight and delivery; 3) inventory
maintenance and warehousing; and 4) warranty and technical support.
Accordingly, based on the selling function categories, we find that
Falcon performed sales and marketing, freight and delivery services,
and inventory maintenance and warehousing for U.S. sales. Because all
sales in the United States are made through a single distribution
channel (i.e., direct sales to unaffiliated customers) and the selling
activities to Falcon's customers did not vary within this channel, we
preliminarily determine that there is one LOT in the U.S. market.
With respect to the third country market, Falcon reported that it
made sales to trading companies and that all selling functions were
performed at the same levels of intensity as in the U.S. market. We
examined the selling activities performed for third country sales, and
found that Falcon performed the following selling functions: customer
contact and price negotiation; order processing; arranging for freight
and the provision of customs clearance/brokerage services (in India);
cold storage and inventory maintenance; quality-assurance-related
activities; and banking-related activities. Accordingly, based on these
selling functions noted above, we find that Falcon performed sales and
marketing, freight and delivery services, and inventory maintenance and
warehousing for all third country sales. Because all third country
sales are made through a single distribution channel and the selling
activities to Falcon's customers did not vary within this channel, we
preliminarily determine that there is one LOT in the third country
market for Falcon.
Finally, we compared the EP LOT to the third country market LOT and
found that the selling functions performed for U.S. and third country
market customers do not differ, as Falcon performed the same selling
functions at the same relative level of intensity in both markets.
Therefore, we determine that sales to the U.S. and third country
markets during the POR were made at the same LOT, and as a result, no
LOT adjustment is warranted.
3. Liberty Group
The Liberty Group reported that it made EP sales in the U.S. market
to trading companies. We examined the selling activities performed for
this channel and found that the Liberty Group performed the following
selling functions: customer contact and price negotiation; order
processing; arranging for freight and the provision of customs
clearance/ brokerage services; cold storage and inventory maintenance;
quality assurance related activities; and banking-related activities.
These selling activities can be generally grouped into four selling
function categories for analysis: 1) sales and marketing; 2) freight
and delivery; 3) inventory maintenance and warehousing; and 4) warranty
and technical support. Accordingly, based on the selling function
categories noted above, we find that the Liberty Group performed sales
and marketing, freight and delivery services, and inventory maintenance
and warehousing for U.S. sales. Because all U.S. sales are made through
a single distribution channel and the selling activities to the Liberty
Group's customers did not vary within this channel, we preliminarily
determine that there is one LOT in the U.S. market.
With respect to the third country market, the Liberty Group
reported that it made sales to trading companies. We examined the
selling activities performed for third country sales, and found that
the Liberty Group performed the following selling functions: customer
contact and price negotiation; order processing; arranging for freight
and the provision of customs clearance/brokerage services; cold storage
and inventory maintenance; quality assurance related activities; and
banking-related activities. Accordingly, based on these selling
functions noted above, we find that the Liberty Group performed sales
and marketing, freight and delivery services, and inventory maintenance
and warehousing for third country sales. Because all third country
sales are made through a single distribution channel and the selling
activities to the Liberty Group's customers did not vary within this
channel, we preliminarily determine that there is one LOT in the third
country market for the Liberty Group.
Finally, we compared the EP LOT to the third country market LOT and
found that the selling functions performed for U.S. and third country
market customers do not differ. Therefore, we determined that sales to
the U.S. and third country markets during the POR were made at the same
LOT, and as a result, no LOT adjustment was warranted.
C. Cost of Production Analysis
We found that Devi, Falcon, and the Liberty Group made sales in the
same comparison markets below the COP in the most recently completed
segment of this proceeding, as of the date of initiation of this
review, in which each respondent was examined, and such sales were
disregarded. See 2006-2007 Final Results, 73 FR at 40495 (finding
[[Page 12183]]
that Devi and Falcon made below-cost sales); see also Certain Frozen
Warmwater Shrimp from India: Final Results and Partial Rescission of
Antidumping Duty Administrative Review, 72 FR 52055, 52058 (Sept. 12,
2007) (finding that the Liberty Group made below-cost sales). Thus, in
accordance with section 773(b)(2)(A)(ii) of the Act, there are
reasonable grounds to believe or suspect that Devi, Falcon, and the
Liberty Group made sales in the third country market at prices below
the cost of producing the merchandise in the current review period.
1. Calculation of Cost of Production
In accordance with section 773(b)(3) of the Act, we calculated the
respondents' COPs based on the sum of their costs of materials and
conversion for the foreign like product, plus amounts for G&A expenses
and interest expenses (see ``Test of Comparison Market Sales Prices''
section, below, for treatment of third country selling expenses).
The Department relied on the COP data submitted by each respondent
in its most recently submitted cost database for the COP calculation,
except for the following instances:
a. Devi:
i. We adjusted Devi's reported G&A expenses to include a gain on the
sale of assets and income from sales of shrimp waste; and
ii. Devi reported a negative financial expense rate. In accordance with
the Department's practice, we have adjusted Devi's reported financial
expense rate to set it to zero. See Certain Steel Concrete Reinforcing
Bars From Turkey; Preliminary Results and Preliminary Partial
Rescission of Antidumping Duty Administrative Review, 74 FR 20911,
20913 (May 6, 2009), unchanged in Certain Steel Concrete Reinforcing
Bars From Turkey; Final Results and Final Partial Rescission of
Antidumping Duty Administrative Review, 74 FR 45611 (Sept. 3, 2009).
For further discussion of these adjustments, see the memorandum
from Frederick W. Mines, Accountant, to Neal M. Halper, Director,
Office of Accounting, entitled, ``Cost of Production and Constructed
Value Calculation Adjustments for the Preliminary Results - Devi Sea
Foods Limited,'' dated March 8, 2010.
b. Liberty Group:
Because the Liberty Group failed to report cost data for one
product, the Department has preliminary determined to apply facts
available for this COP, pursuant to section 776(a)(2)(A) and (B) of the
Act. As partial facts available, we have used the cost of the next most
similar product produced during the POR as a surrogate for the missing
COP information. See Memorandum to the File, from Holly Phelps,
Analyst, Office 2, AD/CVD Operations, entitled, ``Calculation
Adjustments for Devi Marine Food Exports Private Limited, Kader Exports
Private Limited, Kader Investment and Trading Company Private Limited,
Liberty Frozen Foods Private Limited, Liberty Oil Mills Ltd., Premier
Marine Products, and Universal Cold Storage (Collectively, ``the
Liberty Group'') for the Preliminary Results in the 2008-2009
Administrative Review of Certain Frozen Warmwater Shrimp from India,''
dated March 8, 2010 (Liberty Group Sales Calculation Memo).
2. Test of Comparison Market Sales Prices
On a product-specific basis, we compared the adjusted weighted-
average COP to the comparison market sales prices of the foreign like
product, as required under section 773(b) of the Act, in order to
determine whether the sale prices were below the COP. For purposes of
this comparison, we used COP exclusive of selling and packing expenses.
The prices (inclusive of billing adjustments, where appropriate) were
exclusive of any applicable movement charges, discounts, direct and
indirect selling expenses and packing expenses.
3. Results of the COP Test
In determining whether to disregard third country sales made at
prices below the COP, we examined, in accordance with sections
773(b)(1)(A) and (B) of the Act: 1) whether, within an extended period
of time, such sales were made in substantial quantities; and 2) whether
such sales were made at prices which permitted the recovery of all
costs within a reasonable period of time in the normal course of trade.
In accordance with section 773(b)(2)(C)(i) of the Act, where less than
20 percent of the respondent's third country sales of a given product
are at prices less than the COP, we do not disregard any below-cost
sales of that product because we determine that in such instances the
below-cost sales were not made within an extended period of time and in
``substantial quantities.'' Where 20 percent or more of a respondent's
sales of a given product are at prices less than the COP, we disregard
the below-cost sales when: 1) they were made within an extended period
of time in ``substantial quantities,'' in accordance with sections
773(b)(2)(B) and (C) of the Act; and 2) based on our comparison of
prices to the weighted-average COPs for the POR, they were at prices
which would not permit the recovery of all costs within a reasonable
period of time, in accordance with section 773(b)(2)(D) of the Act.
We found that, for certain products, more than 20 percent of
Devi's, Falcon's, and the Liberty Group's third country sales were at
prices less than the COP and, in addition, such sales did not provide
for the recovery of costs within a reasonable period of time. We
therefore excluded these sales and used the remaining sales as the
basis for determining NV, in accordance with section 773(b)(1) of the
Act.
For those U.S. sales of subject merchandise for which there were no
third country sales in the ordinary course of trade, we compared CEPs
or EPs, as appropriate, to CV in accordance with section 773(a)(4) of
the Act. See ``Calculation of Normal Value Based on Constructed Value''
section below.
D. Calculation of Normal Value Based on Comparison Market Prices
1. Devi
For Devi, we calculated NV based on delivered prices to
unaffiliated customers in Canada. We made adjustments to the starting
price, where appropriate, for discounts in accordance with 19 CFR
351.401(c). We also made deductions for foreign inland freight
expenses, foreign brokerage and handling expenses, various foreign
miscellaneous shipment charges and international freight expenses
(including terminal handling charges) under section 773(a)(6)(B) of the
Act.
For comparisons to EP sales, we made adjustments under section
773(a)(6)(C)(iii) of the Act and 19 CFR 351.410 for differences in
circumstances of sale for direct selling expenses (including bank
charges, Export Credit Guarantee Corporation (ECGC) fees, EIA fees,
imputed credit expenses, and other direct selling expenses), and
commissions. Because commissions were paid only in the comparison
market, we made an upward adjustment to NV for the lesser of: 1) the
amount of commission paid in the comparison market; or 2) the amount of
indirect selling expenses incurred in the U.S. market. See 19 CFR
351.410(e).
For comparisons to CEP sales, in accordance with section
773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, we deducted from NV
direct selling expenses (i.e., imputed credit expenses and other direct
selling expenses), commissions, sales and marketing allowance
expenditures, and indirect
[[Page 12184]]
selling expenses (including inventory carrying costs and other indirect
selling expenses). Because commissions were paid only in the comparison
market, we made an upward adjustment to NV for the lesser of: 1) the
amount of commission paid in the comparison market; or 2) the amount of
indirect selling expenses incurred in the U.S. market. See 19 CFR
351.410(e).
For all price-to-price comparisons, we made adjustments for
differences in costs attributable to differences in the physical
characteristics of the merchandise in accordance with section
773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We also deducted third
country packing costs and added U.S. packing costs in accordance with
sections 773(a)(6)(A) and (B) of the Act.
2. Falcon
We based NV for Falcon on prices to unaffiliated customers in
Japan. We made adjustments, where appropriate, to the starting price
for discounts in accordance with 19 CFR 351.401(c). We also made
deductions, where appropriate, from the starting price for cold storage
expenses, loading and unloading expenses, trailer hire expenses,
foreign inland freight expenses, port charges, export survey charges,
terminal and handling charges, foreign miscellaneous shipment charges,
foreign brokerage and handling expenses, and international freight
expenses, under section 773(a)(6)(B)(ii) of the Act.
In addition, we made adjustments under section 773(a)(6)(C)(iii) of
the Act and 19 CFR 351.410 for differences in circumstances of sale for
commissions, imputed credit expenses, bank fees, EIA fees, ECGC
premiums, outside inspection/lab expenses, letter of credit amendment
charges, and other miscellaneous selling expenses. For Falcon's U.S.
sales for which it had not yet received payment, we recalculated U.S.
credit expenses using the date February 25, 2010, as the date of
payment because this was the date of Falcon's last submission on the
record that contained payment date information. We also recalculated
Falcon's third country and U.S. credit expenses to use the simple
average of the POR U.S. Federal Reserve interest rates, as well as to
base the expense on gross unit price net of discounts. For further
discussion, see the Memorandum to the File, from Blaine Wiltse,
Analyst, Office 2, AD/CVD Operations, entitled, ``Calculation
Adjustments for Falcon Marine Exports Limited for the Preliminary
Results,'' dated March 8, 2010. Finally, where commissions were granted
in the U.S. market but not in the comparison market, we made a downward
adjustment to NV for the lesser of: 1) the amount of commission paid in
the U.S. market; or 2) the amount of indirect selling expenses
(including inventory carrying costs) incurred in the comparison market.
See 19 CFR 351.410(e). If commissions were granted in the comparison
market but not in the U.S. market, we made an upward adjustment to NV
following the same methodology. Id.
We made adjustments for differences in costs attributable to
differences in the physical characteristics of the merchandise in
accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
We also deducted third country packing costs and added U.S. packing
costs, in accordance with sections 773(a)(6)(A) and (B) of the Act.
3. Liberty Group
We based NV for the Liberty Group on prices to unaffiliated
customers in Japan. We made deductions, where appropriate, from the
starting price for inland freight expenses from the plant to the port,
other shipment and movement expenses, clearing and forwarding agency
charges, shipment-related expenses, cold storage charges, international
freight expenses, and terminal handling charges, under section
773(a)(6)(B)(ii) of the Act.
In addition, we made adjustments under section 773(a)(6)(C)(iii) of
the Act and 19 CFR 351.410 for differences in circumstances of sale for
commissions, credit expenses, bank fees, EIA inspection fees, and
outside inspection/lab expenses. We recalculated the Liberty Group's
third country and U.S. credit expenses to use the simple average of the
POR U.S. Federal Reserve interest rates. For further discussion, see
the Liberty Group Sales Calculation Memo. Finally, where commissions
were granted in the U.S. market but not in the comparison market, we
made a downward adjustment to NV for the lesser of: 1) the amount of
commission paid in the U.S. market; or 2) the amount of indirect
selling expenses (including inventory carrying costs) incurred in the
comparison market. See 19 CFR 351.410(e). If commissions were granted
in the comparison market but not in the U.S. market, we made an upward
adjustment to NV following the same methodology. Id. We recalculated
indirect selling expenses to include a sales write-off recognized in
the company's financial statements. For further discussion, see the
Liberty Group Sales Calculation Memo.
We made adjustments for differences in costs attributable to
differences in the physical characteristics of the merchandise in
accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411.
We also deducted third country packing costs and added U.S. packing
costs, in accordance with section 773(a)(6)(A) and (B) of the Act.
E. Calculation of Normal Value Based on Constructed Value
Section 773(a)(4) of the Act provides that where NV cannot be based
on comparison market sales, NV may be based on CV. Accordingly, for
those shrimp products for which we could not determine the NV based on
comparison market sales because all sales of the comparable products
failed the COP test, we based NV on CV.
Section 773(e) of the Act provides that CV shall be based on the
sum of the cost of materials and fabrication for the imported
merchandise, plus amounts for selling, general, and administrative
(SG&A) expenses, profit, and U.S. packing costs. For each respondent,
we calculated the cost of materials and fabrication based on the
methodology described in the ``Cost of Production Analysis'' section,
above. We based SG&A and profit for each respondent on the actual
amounts incurred and realized by it in connection with the production
and sale of the foreign like product in the ordinary course of trade
for consumption in the comparison market, in accordance with section
773(e)(2)(A) of the Act.
We made adjustments to CV for differences in circumstances of sale
in accordance with section 773(a)(6)(iii) and (a)(8) of the Act and 19
CFR 351.410. For comparisons to EP, we made circumstance-of-sale
adjustments by deducting direct selling expenses incurred on comparison
market sales from, and adding U.S. direct selling expenses to, CV. See
19 CFR 351.410(c). For comparisons to Devi's CEP, we deducted
comparison market direct selling expenses from CV. Id. We also made
adjustments for Falcon and the Liberty Group, when applicable, for
comparison market indirect selling expenses to offset U.S. commissions
in EP comparisons. See 19 CFR 351.410(e).
Currency Conversion
We made currency conversions into U.S. dollars for all spot
transactions by Devi, Falcon, and the Liberty Group in accordance with
section 773A of the Act and 19 CFR 351.415, based on the exchange rates
in effect on the dates of the U.S. sales as certified by the Federal
Reserve Bank. In addition, both Devi and Falcon reported that they
purchased forward exchange contracts which were used to convert their
sales prices into
[[Page 12185]]
home market currency. Under 19 CFR 351.415(b), if a currency
transaction on forward markets is directly linked to an export sale
under consideration, the Department is directed to use the exchange
rate specified with respect to such currency in the forward sale
agreement to convert the foreign currency. See Notice of Final
Determination of Sales at Less Than Fair Value and Negative Final
Determination of Critical Circumstances: Certain Frozen and Canned
Warmwater Shrimp From India, 69 FR 76916 (Dec. 23, 2004) and
accompanying Issues and Decision Memorandum at Comment 6; see also
Certain Frozen Warmwater Shrimp from India: Preliminary Results and
Preliminary Partial Rescission of Antidumping Duty Administrative
Review, 74 FR 9991, 9998 (Mar. 9, 2009), unchanged in 2007-2008 Final
Results. Therefore, for Devi and Falcon we used the reported forward
exchange rates for currency conversions where applicable.
Preliminary Results of the Review
We preliminarily determine that weighted-average dumping margins
exist for the respondents for the period February 1, 2008, through
January 31, 2009, as follows:
------------------------------------------------------------------------
Manufacturer/Exporter Percent Margin
------------------------------------------------------------------------
Devi Sea Foods Limited......... 0.38 (de minimis)
Falcon Marine Exports Limited/ 0.89
KR Enterprises................
Liberty Group (Devi Marine Food 4.44
Exports Private Limited/......
Kader Exports Private
Limited/Kader
Investment and Trading
Company Private
Limited/Liberty Frozen
Foods Pvt. Ltd./......
Liberty Oil Mills Ltd./
Premier Marine
Products/Universal
Cold..................
Storage Private
Limited)..............
------------------------------------------------------------------------
Review-Specific Average Rate Applicable to the Following
Companies:\9\
---------------------------------------------------------------------------
\9\ This rate is based on the simple average of the margins
calculation for those companies selected for individual review,
excluding de minimis margins or margins based entirely on adverse
facts available (AFA).
------------------------------------------------------------------------
Manufacturer/Exporter Percent Margin
------------------------------------------------------------------------
Accelerated Freeze-Drying Co... 2.67
AMI Enterprises................ 2.67
Anand Aqua Exports............. 2.67
Ananda Aqua Exports (P) Ltd./ 2.67
Ananda Foods/.................
Ananda Aqua Applications.......
Andaman Seafoods Pvt. Ltd...... 2.67
Angelique Intl................. 2.67
Apex Exports................... 2.67
Asvini Exports................. 2.67
Asvini Fisheries Private 2.67
Limited.......................
Avanti Feeds Limited........... 2.67
Ayshwarya Seafood Private 2.67
Limited.......................
Bhatsons Aquatic Products...... 2.67
Bhavani Seafoods............... 2.67
Bijaya Marine Products......... 2.67
Bluefin Enterprises............ 2.67
Bluepark Seafoods Pvt. Ltd..... 2.67
Britto Exports................. 2.67
C P Aquaculture (India) Ltd.... 2.67
Calcutta Seafoods Pvt. Ltd..... 2.67
Capithan Exporting Co.......... 2.67
Castlerock Fisheries Ltd....... 2.67
Chemmeens (Regd)............... 2.67
Choice Canning Company......... 2.67
Choice Trading Corporation 2.67
Private Limited...............
Coastal Corporation Ltd........ 2.67
Cochin Frozen Food Exports Pvt. 2.67
Ltd...........................
Corlim Marine Exports Pvt. Ltd. 2.67
Devi Fisheries Limited......... 2.67
Digha Seafood Exports.......... 2.67
Esmario Export Enterprises..... 2.67
Exporter Coreline Exports...... 2.67
Five Star Marine Exports 2.67
Private Limited.............
Forstar Frozen Foods Pvt. Ltd.. 2.67
Frontline Exports Pvt. Ltd..... 2.67
Gadre Marine Exports........... 2.67
Galaxy Maritech Exports P. Ltd. 2.67
Gayatri Seafoods............... 2.67
Geo Aquatic Products (P) Ltd... 2.67
Geo Seafoods................... 2.67
Goodwill Enterprises........... 2.67
[[Page 12186]]
Grandtrust Overseas (P) Ltd.... 2.67
GVR Exports Pvt. Ltd........... 2.67
Haripriya Marine Export Pvt. 2.67
Ltd...........................
HIC ABF Special Foods Pvt. Ltd. 2.67
Hindustan Lever, Ltd........... 2.67
IFB Agro Industries Limited.... 2.67
Indo Aquatics.................. 2.67
International Freezefish 2.67
Exports.......................
ITC Limited, International 2.67
Business......................
ITC Ltd...................... 2.67
Jagadeesh Marine Exports....... 2.67
Jaya Satya Marine Exports...... 2.67
Jaya Satya Marine Exports Pvt. 2.67
Ltd...........................
Jayalakshmi Sea Foods Private 2.67
Limited.......................
Jinny Marine Traders........... 2.67
Jiya Packagings................ 2.67
Kanch Ghar..................... 2.67
Kay Kay Exports................ 2.67
Kings Marine Products.......... 2.67
Koluthara Exports Ltd.......... 2.67
Konark Aquatics & Exports Pvt. 2.67
Ltd...........................
Magnum Estate Private Limited.. 2.67
Magnum Export.................. 2.67
Magnum Sea Foods Pvt. Ltd...... 2.67
Malabar Arabian Fisheries...... 2.67
Malnad Exports Pvt. Ltd........ 2.67
Mangala Marine Exim India 2.67
Private Ltd...................
Mangala Sea Products........... 2.67
Meenaxi Fisheries Pvt. Ltd..... 2.67
MSC Marine Exporters........... 2.67
MTR Foods...................... 2.67
Naga Hanuman Fish Packers...... 2.67
Naik Frozen Foods.............. 2.67
Naik Seafoods Ltd.............. 2.67
Navayuga Exports............... 2.67
Navayuga Exports Ltd........... 2.67
Nekkanti Sea Foods Limited..... 2.67
NGR Aqua International......... 2.67
Nila Sea Foods Pvt. Ltd........ 2.67
Overseas Marine Export......... 2.67
Paragon Sea Foods Pvt. Ltd..... 2.67
Penver Products (P) Ltd........ 2.67
Pijikay International Exports P 2.67
Ltd...........................
Pisces Seafood International... 2.67
Premier Exports International.. 2.67
Premier Marine Foods........... 2.67
Premier Seafoods Exim (P) Ltd.. 2.67
Raa Systems Pvt. Ltd........... 2.67
Raju Exports................... 2.67
Ram's Assorted Cold Storage 2.67
Ltd...........................
Raunaq Ice & Cold Storage...... 2.67
Raysons Aquatics Pvt. Ltd...... 2.67
Razban Seafoods Ltd............ 2.67
RBT Exports.................... 2.67
Riviera Exports Pvt. Ltd....... 2.67
Rohi Marine Private Ltd........ 2.67
RVR Marine Products Private 2.67
Limited.......................
S A Exports.................... 2.67
S Chanchala Combines........... 2.67
S & S Seafoods................. 2.67
Safa Enterprises............... 2.67
Sagar Foods.................... 2.67
Sagar Grandhi Exports Pvt. Ltd. 2.67
Sagar Samrat Seafoods.......... 2.67
Sagarvihar Fisheries Pvt. Ltd.. 2.67
Sai Marine Exports Pvt. Ltd.... 2.67
Sai Sea Foods.................. 2.67
Sandhya Aqua Exports........... 2.67
Sandhya Aqua Exports Pvt. Ltd.. 2.67
Sandhya Marines Limited........ 2.67
Santhi Fisheries & Exports Ltd. 2.67
Satya Seafoods Private Limited. 2.67
Sawant Food Products........... 2.67
Seagold Overseas Pvt. Ltd...... 2.67
[[Page 12187]]
Selvam Exports Private Limited. 2.67
Shippers Exports............... 2.67
Shroff Processed Food & Cold 2.67
ZStorage P Ltd................
Sita Marine Exports............ 2.67
Sprint Exports Pvt. Ltd........ 2.67
Sri Chandrakantha Marine 2.67
Exports, Ltd..................
Sri Sakkthi Cold Storage....... 2.67
Sri Sakthi Marine Products P 2.67
Ltd...........................
Sri Satya Marine Exports....... 2.67
Sri Venkata Padmavathi Marine 2.67
Foods Pvt. Ltd................
SSF Ltd........................ 2.67
Star Agro Marine Exports 2.67
Private Limited...............
Sun Bio-Technology Ltd......... 2.67
Suryamitra Exim (P) Ltd........ 2.67
Suvarna Rekha Exports Private 2.67
Limited.......................
Suvarna Rekha Marines P Ltd.... 2.67
TBR Exports Pvt Ltd............ 2.67
Teekay Marine P. Ltd........... 2.67
Tejaswani Enterprises.......... 2.67
The Kadalkanny Group 2.67
(Kadalkanny Frozen Foods,
Edhayam.......................
Frozen Foods Pvt. Ltd.,
Diamond Seafoods
Exports, and..........
Theva & Company).......
The Waterbase Limited.......... 2.67
Triveni Fisheries P Ltd........ 2.67
Uniroyal Marine Exports Ltd.... 2.67
Usha Seafoods.................. 2.67
V.S Exim Pvt Ltd............... 2.67
Vaibhav Sea Foods.............. 2.67
Victoria Marine & Agro Exports 2.67
Ltd...........................
Vinner Marine.................. 2.67
Vishal Exports................. 2.67
Wellcome Fisheries Limited..... 2.67
------------------------------------------------------------------------
Disclosure and Public Hearing
The Department will disclose to parties the calculations performed
in connection with these preliminary results within five days of the
date of publication of this notice. See 19 CFR 352.674(b). Pursuant to
19 CFR 351.309(c), interested parties may submit cases briefs not later
than the later of 30 days after the date of publication of this notice,
or one week after the issuance of the cost verification report for
Devi. Rebuttal briefs, limited to issues raised in the case briefs, may
be filed not later than five days after the date for filing case
briefs. See 19 CFR 351.309(d). Parties who submit case briefs or
rebuttal briefs in this proceeding are encouraged to submit with each
argument: 1) a statement of the issue; 2) a brief summary of the
argument; and 3) a table of authorities. See 19 CFR 351.309(c)(2) and
(d)(2).
Pursuant to 19 CFR 351.310(c), interested parties who wish to
request a hearing, or to participate if one is requested, must submit a
written request to the Assistant Secretary for Import Administration,
Room 1870, within 30 days of the date of publication of this notice.
Requests should contain: 1) the party's name, address and telephone
number; 2) the number of participants; and 3) a list of issues to be
discussed. Id. Issues raised in the hearing will be limited to those
raised in the respective case briefs. Id. The Department will issue the
final results of this administrative review, including the results of
its analysis of the issues raised in any written briefs, not later than
120 days after the date of publication of this notice, pursuant to
section 751(a)(3)(A) of the Act.
Assessment Rates
Upon completion of the administrative review, the Department shall
determine, and CBP shall assess, antidumping duties on all appropriate
entries, in accordance with 19 CFR 351.212(b)(1). The Department will
issue appropriate appraisement instructions for the companies subject
to this review directly to CBP 15 days after the date of publication of
the final results of this review.
For Devi, Falcon, and the Liberty Group, we will calculate
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. See 19 CFR
351.212(b)(1). For the companies which were not selected for individual
review, we will calculate an assessment rate based on the simple
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 calculated in the final results of this review is above
de minimis. 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. The final results of this review
shall be the basis for the assessment of antidumping duties on entries
of merchandise covered by the final results of this review and for
future deposits of estimated duties, where applicable. See 751(a)(2)(C)
of the Act.
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) (Assessment
Policy Notice). 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
that the merchandise they sold to the intermediary (e.g., a reseller,
trading company, or exporter) was destined for the United States. In
such instances, we will instruct CBP to
[[Page 12188]]
liquidate unreviewed entries at the all-others rate if there is no rate
for the intermediary involved in the transaction. See Assessment Policy
Notice for a full discussion of this clarification.
Cash Deposit Requirements
The following cash deposit requirements will be effective for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date of the
final results of this administrative review, as provided by section
751(a)(2)(C) of the Act: 1) the cash deposit rate for each specific
company listed above will be that established in the final results of
this review, except if the rate is less than 0.50 percent and,
therefore, de minimis within the meaning of 19 CFR 351.106(c)(1), in
which case the cash deposit rate will be zero; 2) for previously
reviewed or investigated companies not participating in this review,
the cash deposit rate will continue to be the company-specific rate
published for the most recent period; 3) if the exporter is not a firm
covered in this review, or the original less-than-fair-value (LTFV)
investigation, but the manufacturer is, the cash deposit rate will be
the rate established for the most recent period for the manufacturer of
the merchandise; and 4) the cash deposit rate for all other
manufacturers or exporters will continue to be 10.17 percent, the all-
others rate made effective by the LTFV investigation. See Shrimp Order,
70 FR at 5148. These deposit requirements, when imposed, shall remain
in effect until further notice.
Notification to Importers
This notice also serves as a preliminary reminder to importers of
their responsibility under 19 CFR 351.402(f) 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.
This administrative review and notice are published in accordance
with sections 751(a)(1) and 777(i) of the Act and 19 CFR 352.671(b)(4).
Dated: March 8, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-5590 Filed 3-12-10; 8:45 am]
BILLING CODE 3510-DS-S