Implementation of the Findings of the WTO Panel in United States-Antidumping Measure on Shrimp From Thailand: Notice of Determination Under Section 129 of the Uruguay Round Agreements Act and Partial Revocation of the Antidumping Duty Order on Frozen Warmwater Shrimp From Thailand

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On January 12, 2009, the Department of Commerce (the Department) issued a determination regarding the offsetting of dumped sales with non-dumped sales when making average-to-average comparisons of export price and normal value in the antidumping duty investigation of certain frozen warmwater shrimp challenged by Thailand before the World Trade Organization (WTO). On January 16, 2009, the U.S. Trade Representative (USTR) instructed the Department to implement in whole this determination under section 129 of the Uruguay Round Agreements Act (URAA). The Department is now implementing this determination.

DATES:

Effective Date: The effective date of this determination is January 16, 2009.

FOR FURTHER INFORMATION CONTACT:

Henry Almond or Shawn Thompson, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: (202) 482-0049 or (202) 482-1776, respectively.

SUPPLEMENTARY INFORMATION:

Background

On November 14, 2008, the Department advised interested parties that it was initiating a proceeding under section 129 of the URAA to issue a determination that would implement the findings of the WTO dispute settlement panel in United States—Measures Relating to Shrimp From Thailand, WT/DS343/R (Feb. 29, 2008). On November 21, 2008, the Department issued its preliminary results, in which it recalculated the weighted-average dumping margins from the antidumping investigation of frozen warmwater shrimp from Thailand by applying the calculation methodology described in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation; Final Modification, 71 FR 77722 (Dec. 27, 2006). The Department also invited interested parties to comment on the preliminary results. After receiving comments and rebuttal comments from the interested parties, the Department issued its final results for the section 129 determination on January 12, 2009.

On January 16, 2009, consistent with section 129(b)(3) of the URAA, the USTR held consultations with the Department and the appropriate congressional committees with respect to this determination. Also on January 16, 2009, in accordance with sections 129(b)(4) and 129(c)(1)(B) of the URAA, the USTR directed the Department to implement in whole this determination.

Nature of the Proceedings

Section 129 of the URAA governs the nature and effect of determinations issued by the Department to implement findings by WTO dispute settlement panels and the Appellate Body. Specifically, section 129(b)(2) provides that “notwithstanding any provision of the Tariff Act of 1930,” within 180 days of a written request from the USTR, the Department shall issue a determination that would render its actions not inconsistent with an adverse finding of a WTO panel or the Appellate Body. See 19 U.S.C. 3538(b)(2). The Statement of Administrative Action, URAA, H. Doc. 316, Vol. 1, 103d Cong. (1994) (SAA) variously refers to such a determination by the Department as a “new,” “second,” and “different” determination. See SAA at 1025, 1027. After consulting with the Department and the appropriate congressional committees, the USTR may direct the Department to implement, in whole or in part, the new determination made under section 129. See 19 U.S.C. 3538(b)(4). Pursuant to section 129(c), the new determination shall apply with respect to unliquidated entries of the subject merchandise that are entered, or withdrawn from warehouse, for consumption on or after the date on which the USTR directs the Department to implement the new determination. See 19 U.S.C. 3538(c). The new determination is subject to judicial review separate and apart from judicial review of the Department's original determination. See 19 U.S.C. 1516a(a)(2)(B)(vii).

Analysis of Comments Received

The issues raised in the case and rebuttal briefs submitted by interested parties to this proceeding are addressed in the Final Results of Proceeding Under Section 129 of the URAA. See the January 12, 2009, “Issues and Decision Memorandum for the Final Results” from Gary Taverman, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Acting Assistant Secretary for Import Administration, dated January 12, 2009 (Issues and Decision Memorandum), which is hereby adopted by this notice. The Issues and Decision Memorandum is on file in the Central Records Unit (CRU), room 1117 of the Department of Commerce main building and can be accessed directly at http://ia.ita.doc.gov/download/section129/full-129-index.html. The paper copy and electronic version of the Issues and Decision Memorandum are identical in content. A list of the issues addressed in the Issues and Decision Memorandum is appended to this notice.

Final Antidumping Margins

The recalculated margins, unchanged from the preliminary results, are as follows:

Implementation

On January 16, 2009, in accordance with sections 129(b)(4) and 129(c)(1)(B) of the URAA, the USTR directed the Department to implement this determination, effective January 16, 2009. Accordingly, we will instruct U.S. Customs and Border Protection (CBP) to terminate the suspension of liquidation for all shipments of frozen warmwater shrimp produced and exported by one or more of the members of the Rubicon Group (i.e., Andaman Seafood Co., Ltd., Chanthaburi Frozen Food Co., Ltd., Chanthaburi Seafoods Co., Ltd., Intersia Foods Co., Ltd., Phatthana Seafood Co., Ltd., S.C.C. Frozen Seafood Co., Ltd., Thailand Fishery Cold Storage Public Co., Ltd., Thai International Seafoods Co., Ltd., and Wales & Co. Universe Limited), as well as shipments of frozen warmwater shrimp produced and exported by Thai I-Mei Frozen Foods, Co., Ltd., entered or withdrawn from warehouse, for consumption on or after the effective date of this determination. Further, the Department will instruct CBP to liquidate without regard to antidumping duties (release all bonds and refund all cash deposits) entries of frozen warmwater shrimp produced and exported by these entities, entered, or withdrawn from warehouse, for consumption on or after the effective date of this determination. Additionally, the Department will instruct CBP to change the “all-others” cash deposit rate from 5.95 percent ad valorem to 5.34 percent ad valorem.

This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation. This determination is issued and published in accordance with section 129(c)(2)(A) of the URAA.

Appendix I

Issues Raised in the Issues and Decision Memorandum

Comment 1: Whether the Department of Commerce (the Department) Has the Authority to Implement a Determination Pursuant to Section 129 of the URAA

Comment 2: Whether the Preliminary Results are Consistent with U.S. Law

Comment 3: Alternative Calculation Methodologies

Comment 4: Effective Date of Implementation

Comment 5: The Rubicon Group Companies Subject to this Proceeding