Notice of Amended Preliminary Antidumping Duty Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From the People's Republic of China

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Amended preliminary antidumping duty determination of sales at less than fair value.

EFFECTIVE DATE:

September 1, 2004.

FOR FURTHER INFORMATION CONTACT:

James C. Doyle or Alex Villanueva, NME Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-0159, or (202) 482-3208, respectively.

Scope of the Investigation

The scope of this investigation includes certain warmwater shrimp and prawns, whether frozen or canned, wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off, deveined or not deveined, cooked or raw, or otherwise processed in frozen or canned form.

The frozen or canned warmwater shrimp and prawn products included in the scope of the investigation, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTSUS”), are products which are processed from warmwater shrimp and prawns through either freezing or canning 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 investigation. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are included in the scope of the investigation.

Excluded from the scope are: (1) Breaded shrimp and prawns (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 (0306.23.00.20 and 0306.23.00.40); (4) shrimp and prawns in prepared meals (1605.20.05.10); and (5) dried shrimp and prawns.

The products covered by this scope are currently classifiable 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, 1605.20.10.30, and 1605.20.10.40. These HTSUS subheadings are provided for convenience and customs purposes only and are not dispositive, but rather the written description of the scope of this investigation is dispositive.

Background

On July 2, 2004, the Department of Commerce (the “Department”) preliminarily determined that certain frozen and canned warmwater shrimp from the People's Republic of China (“PRC”) are being, or are likely to be, sold in the United States at less than fair value (“LTFV”), as provided in section 733(a) of the Tariff Act of 1930, as amended (“the Act”). See Notice of Preliminary Determination of Sales at Less Than Fair Value, Partial Affirmative Preliminary Determination of Critical Circumstances and Postponement of Final Determination: Certain Frozen and Canned Warmwater Shrimp from the People's Republic of China (“Preliminary Determination”), 69 FR 42654 (July 16, 2004).

On July 13, 2004, Allied Pacific Food (Dalian) Co. Ltd., Allied Pacific (H.K.) Co., Ltd., King Royal Investments, Ltd., Allied Pacific Aquatic Products (Zhanjiang) Co., Ltd., Allied Pacific Aquatic Products (Zhongshan) Co., Ltd. (collectively, “Allied Pacific”), Yelin Enterprise Co. Hong Kong, Yangjiang City Yelin Hoitat Quick Frozen Seafood Co., Ltd., Fuqing Yihua Aquatic Products Co., Ltd., Shantou Yelin Frozen Seafood Co. (collectively, “Yelin'; both Yelin and Allied Pacific are collectively referred to as “the Mandatory Respondents”) timely filed allegations that the Department made ministerial errors in its Preliminary Determination.

On July 13, 2004, Zhejiang Cereals, Oils & Foodstuffs Import & Export Co., Ltd., (“Zhejiang Cereals”), ZJ CNF Sea Products Engineering Ltd., CNF Zhanjiang (Tong Lian) Fisheries Co., Ltd., Zhoushan Xifeng Aquatic Co., Ltd., Zhejiang Daishan Baofa Aquatic Product Co., Ltd., Zhejiang Taizhou Lingyang Aquatic Products co., Zhoushan Juntai Foods Co., Ltd., Zhoushan Zhenyang Developing Co., Ltd., Zhejiang Cereals, Oils & Foodstuffs Import & Export Co., Ltd., Zhoushan Diciyuan Aquatic Products Co., Ltd., Zhejiang Zhenglong Foodstuffs Co., Ltd., Zhejiang Evernew Seafood Co., Ltd., Jinfu Trading Co., Ltd., Taizhou Zhonghuan Industrial Co., Ltd., Shanghai Linghai Fisheries Economic & Trading Co., Ltd., Asian Seafoods (Zhanjiang) Co., Ltd., (“Asian”), Shantou Sez Xuhao Fastness Freeze Aquatic Factory Co., Ltd., (“Shantou Sez Xu”), Shantou Yuexing Enterprise Company (“Shantou Yuexing”), Shantou Shengping Oceanstar Business Co., Ltd. (“Shantou Oceanstar”) and Hainan Golden Spring Foods Co., Ltd., (“Hainan Golden”), (collectively “Section A Respondents”), timely filed allegations that the Department made ministerial errors in its Preliminary Determination.

On August 3, 2004, the Department requested that the Mandatory Respondents resubmit their ministerial error comments in accordance with 19 CFR 351.224(d). On August 9, 2004, the Mandatory Respondents filed revised ministerial error comments.

Significant Ministerial Error

A ministerial error is defined in section 351.224(f) of our regulations as “an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial.” Section 351.224(e) of the Department's regulations provides that the Department “will analyze any comments received and, if appropriate, correct any significant ministerial error by amending the preliminary determination * * *” (emphasis added).

A significant ministerial error is defined as an error, the correction of which, singly or in combination with other errors, would result in (1) A change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original (erroneous) preliminary determination; or (2) a difference between a weighted-average dumping margin of zero or de minimis and a weighted-average dumping margin of greater than de minimis or vice versa. See 19 CFR 351.224(g). The Department is publishing this amendment to its Preliminary Determination pursuant to 19 CFR 351.224(e).

Ministerial Error Allegations From the Mandatory Respondents

The Department addresses allegations of ministerial error with regard to the Mandatory Respondents in its Memorandum to the File, dated August 20, 2004, from Paul Walker, Case Analyst through James C. Doyle, Program Manager, Regarding Antidumping Duty Investigation of Certain Frozen and Canned Warmwater Shrimp from the PRC: Allegations of Ministerial Error from Mandatory Respondents (“Mandatory Respondent Memo”). Specifically, these allegations concern the raw shrimp surrogate value and usage ratio, and Yelin's CEP profit and inland freight. For purposes of this amended preliminary determination we are not changing any findings in the preliminary determination for any of the Mandatory Respondents. For a detailed analysis of the allegations made by Mandatory Respondents, please see the Mandatory Respondent Memo.

Ministerial Error Allegations From the Section A Respondents

The Department addresses allegations of ministerial error with regard to Section A Respondents in its Memorandum to the File, dated August 18, 2004, from Julia Hancock and Irene Gorelik, Case Analysts through James C. Doyle, Program Manager, Regarding Antidumping Duty Investigation of Certain Frozen and Canned Warmwater Shrimp from the People's Republic of China: Allegations of Ministerial Error from Section A Respondents (“Section A Respondent Memo”). Specifically, these allegations concern the expiration of business licenses, the acceptance of certificates of incorporation in lieu of a business license, sales packages, price negotiations and illegible submissions.

Additionally, on July 13, 2004, July 28, 2004, and August 4, 2004, the Department received additional timely information from certain Section A Respondents. The Department will address these comments in the final determination. See Section A Respondent Memo.

Amended Preliminary Determination

Upon re-examining the record for Shantou Shengping Oceanstar Business Co., Ltd. and Shantou Yuexing Enterprise Company, the Department agrees it made ministerial errors and is, therefore, correcting the error and granting these Section A companies separate rates for this amended preliminary determination. As a result of our correction of ministerial errors in the Preliminary Determination, the Department has determined that the following weighted-average dumping margins apply:

Because the errors alleged for the Mandatory Respondents were not significant, the Department is not amending the weighted-average dumping margin listed in the Preliminary Determination. In addition, the PRC-wide rate remains unchanged. The Mandatory Respondents will, however, have the opportunity to address the issues raised in their ministerial error comments in their case brief, which will be considered by the Department at the final determination.

The collection of bonds or cash deposits and suspension of liquidation will be revised accordingly and parties will be notified of this determination, in accordance with section 733(d) and (f) of the Act.

International Trade Commission Notification

In accordance with section 733(f) of the Act, we have notified the International Trade Commission (“ITC”) of our amended preliminary determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of the preliminary determination or 45 days after our final determination whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports, or sales (or the likelihood of sales) for importation, of the subject merchandise.

This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.224(e).