[Federal Register: March 6, 2008 (Volume 73, Number 45)]
[Notices]
[Page 12103-12115]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06mr08-33]
[[Page 12103]]
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DEPARTMENT OF COMMERCE
International Trade Administration
A-533-840
Certain Frozen Warmwater Shrimp from India: Preliminary Results
and Preliminary Partial Rescission of Antidumping Duty Administrative
Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting an
administrative review of the antidumping duty order on certain frozen
warmwater shrimp from India with respect to 201 companies.\1\ The
respondents which the Department selected for individual review are
Devi Sea Foods Limited (Devi) and Falcon Marine Exports Limited
(Falcon). The respondents which were not selected for individual review
are listed in the ``Preliminary Results of Review'' section of this
notice. This is the second administrative review of this order. The
period of review (POR) is February 1, 2006, through January 31, 2007.
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\1\ This figure does not include those companies for which the
Department is preliminarily rescinding the administrative review.
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We preliminarily determine that sales made by Devi and Falcon have
been made at below normal value (NV). In addition, based on the
preliminary results for the respondents selected for individual review,
we have preliminarily determined a weighted-average margin for those
companies that were not selected for individual review but were
responsive to the Department's requests for information. For those
companies which were not responsive to the Department's requests for
information, we have preliminarily assigned to them a margin based on
adverse facts available (AFA).
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 6, 2008.
FOR FURTHER INFORMATION CONTACT: Elizabeth Eastwood, 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) 482-3874.
SUPPLEMENTARY INFORMATION:
Background
In February 2005, the Department published in the Federal Register
an antidumping duty order on certain 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). Subsequently, on February 2,
2007, 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, 2006, through January 31, 2007. See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation;
Opportunity to Request Administrative Review, 72 FR 5007 (Feb. 2,
2007). 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 sales of certain frozen warmwater shrimp from numerous producers/
exporters of subject merchandise, the Department published a notice of
initiation of administrative review for 319 companies\2\ and requested
that each provide data on the quantity and value (Q&V) of its exports
of subject merchandise to the United States during the POR for
mandatory respondent selection purposes. These companies are listed in
the Department's notice of initiation. See Notice of Initiation of
Administrative Reviews of the Antidumping Duty Orders on Certain Frozen
Warmwater Shrimp From Brazil, Ecuador, India and Thailand, 72 FR 17100
(Apr. 6, 2007) (Notice of Initiation).
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\2\ We note that we incorrectly stated in the Notice of
Initiation that we were initiating administrative reviews for 313
companies for India.
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On April 5, 2007, the petitioner\3\ requested that the Department
determine whether antidumping duties had been absorbed by the
respondents that were to be required to participate in this review.
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\3\ The petitioner is the Ad Hoc Shrimp Trade Action Committee.
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During the period April through July 2007, we received responses to
the Department's Q&V questionnaire from numerous companies. We were
unable to locate 16 companies, and we did not receive properly filed
responses to this questionnaire from the remaining companies.\4\ For
further discussion of our treatment of this latter group of companies,
see the ``Application of Facts Available'' section of this notice.
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\4\ As discussed below, for certain of these companies, the
petitioner subsequently withdrew its request for review.
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On May 25, 2007, Surya Marine Exports (Surya), one of the companies
that responded to our Q&V questionnaire, notified us that it had
changed its name during the POR and is now doing business under the
name Suryamitra Exim Private Limited (Suryamitra). As a result, we
solicited information on this change from Suryamitra, which the company
supplied in June 2007 and February 2008. After analyzing this
information, we preliminarily find that Suryamitra is the successor-in-
interest to Surya Marine. For further discussion, see the ``Successor-
in-Interest'' section of this notice, below.
On July 5, 2007, the Louisiana Shrimp Association (LSA) withdrew
its request for an administrative review for 17 companies, with respect
to which the petitioner also withdrew its request on March 16, 2007.
Based upon our consideration of the responses received to the Q&V
questionnaire and 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. As a
result, on July 19, 2007, we selected the two largest producers/
exporters of certain frozen warmwater shrimp from India during the POR
(i.e., Devi and Falcon) as the mandatory respondents in this
proceeding. See the memorandum to Stephen J. Claeys, Deputy Assistant
Secretary for Import Administration, from James Maeder, Director,
Office 2, AD/CVD Operations, entitled, ``2006-2007 Antidumping Duty
Administrative Review of Certain Frozen Warmwater Shrimp from India:
Selection of Respondents for Individual Review,'' dated July 19, 2007.
On this same date, we issued the antidumping duty questionnaire to Devi
and Falcon.
On July 26, 2007, we issued a letter to a non-selected Indian
producer/exporter, Gajula Exim (P) Ltd. (Gajula), requesting that it
reconcile its claim made in response to the Q&V questionnaire that it
did not ship subject merchandise to the United States during the POR
with information obtained from CBP. Although Gajula responded to this
request for information in August 2007, it failed to properly file its
response with the Department, despite repeated requests that it do so.
Therefore, we have preliminarily assigned to Gajula a margin based on
AFA. For further discussion, see the ``Application of Facts Available''
section of this notice, below.
[[Page 12104]]
We received responses to sections A, B, and C of the questionnaire
from Devi and Falcon in August and September 2007. We also received a
response to section D of the questionnaire from Devi in September 2007.
On August 24, 2007, the petitioner submitted comments regarding
third country market selection with respect to Falcon, and on September
10, 2007, we determined that Japan is the appropriate third country
comparison market for this respondent. See the memorandum to James
Maeder, Director, Office 2, AD/CVD Operations, from The Team entitled,
``2006-2007 Antidumping Duty Administrative Review on Certain Frozen
Warmwater Shrimp from India - Selection of the Appropriate Third
Country Market for Falcon Marine Exports Limited,'' dated September 10,
2007 (Selection of Third County Markets Memo). See also the ``Home
Market Viability and Selection of Comparison Markets'' section of this
notice, below, for further discussion.
On September 24, 2007, we provided Devi and Falcon an opportunity
to submit proof that their unaffiliated purchasers will ultimately pay
any antidumping duties assessed in this administrative review on their
merchandise. Neither company responded to this request.
On September 25, 2007, we issued a letter to four Indian exporters/
producers participating in this review (i.e., Kadalkanny Frozen Foods
(Kadalkanny), Edhayam Frozen Foods Pvt. Ltd. (Edhayam), Diamond Seafood
Exports (Diamond), and Theva & Co. (Theva) (collectively, the
``Kadalkanny Group'')) regarding the companies' relationships with each
other.
On September 27, 2007, the petitioner requested that the Department
initiate a sales-below-cost investigation related to Falcon's sales to
Japan.
On October 11, 2007, we received a response to the Department's
September 25, 2007, letter from the Kadalkanny Group.
On October 16, 2007, we initiated a sales-below-cost investigation
for Falcon. See the memorandum to James Maeder, Director, Office 2, AD/
CVD Operations, from The Team entitled, ``The Petitioner's Allegation
of Sales Below the Cost of Production for Falcon Marine Exports
Limited,'' dated October 16, 2007 (Sales-Below-Cost-Memo for Falcon).
On this same date, we required Falcon to respond to section D of the
questionnaire. It submitted its response in December 2007.
On October 19, 2007, an Indian governmental agency, the Marine
Products Export Development Authority (MPEDA), requested that the
Department rescind the administrative review with respect to the
following Indian companies: 1) those exporters for which the review was
requested solely by either the petitioner or the LSA, based on the
claim that these requests did not meet the requirements of 19 CFR
351.213(b); and 2) any exporters which are not registered with MPEDA
and did not respond to the Department's request for information, based
on the claim that these companies are not permitted to export products
from India (and, thus, could not have shipped subject merchandise to
the United States during the POR). For further discussion of this
request, see the ``Partial Rescission of Review'' section of this
notice, below.
On October 26, 2007, the Department postponed the preliminary
results in this review until no later than February 28, 2008. See
Certain Frozen Warmwater Shrimp From Brazil, Ecuador, India, Thailand,
and the Socialist Republic of Vietnam: Notice of Extension of Time
Limits for the Preliminary Results of the Second Administrative
Reviews, 72 FR 60800 (Oct. 26, 2007).
On November 13, 2007, we again contacted the Kadalkanny Group
regarding the affiliation among the individual members of the Group. We
received its response in December 2007.
On December 10, 2007, we requested that Devi provide additional
information related to its reported comparison market sales.
On December 20, 2007, we determined that it was appropriate to
collapse the companies within the Kadalkanny Group and thus to treat
them as a single entity in this proceeding, in accordance with 19 CFR
351.401(f). For further discussion, see the ``Collapsing the Kadalkanny
Group'' section of this notice, below.
During the period October 2007 through February 2008, we issued to
Falcon and Devi several supplemental questionnaires regarding sections
A, B, C, and D of the original questionnaires. We received responses to
these questionnaires during the period November 2007 through February
2008.
On January 8, 2008, we notified interested parties of our intent to
rescind this administrative review with respect to a number of Indian
producers/exporters of subject merchandise. See the memorandum to the
File from Elizabeth Eastwood, Senior Analyst, entitled, ``Intent to
Rescind In Part the 2006-2007 Antidumping Duty Administrative Review on
Frozen Warmwater Shrimp from India,'' dated January 8, 2008 (Intent to
Rescind Memo).
On January 11, 2008, we received comments on the Intent to Rescind
Memo from a non-selected Indian producer/exporter participating in this
review, Asvini Fisheries Private Limited (Asvini). In its January 11
submission, Asvini notified us that it had changed its name during the
POR from Asvini Fisheries Limited to Asvini, and it requested that the
Department not rescind the review with respect to Asvini under its
former name.
On January 25, 2008, we published a notice rescinding the
administrative review with respect to 114 companies, based on: 1)
timely withdrawals of the review requests; 2) confirmed statements of
no shipments during the POR; 3) our inability to locate certain
companies; and/or 4) duplicated names in our notice of initiation. See
Certain Frozen Warmwater Shrimp from India; Partial Rescission of
Antidumping Duty Administrative Review, 73 FR 6125 (Feb. 1, 2008)
(Notice of Rescission). See also the Intent to Rescind Memo.
On February 5, 2008, we solicited information from Asvini regarding
its name change, which the company supplied on February 19, 2008. After
analyzing this information, we preliminarily find that Asvini Fisheries
Private Limited is the successor-in-interest to Asvini Fisheries
Limited. For further discussion, see the ``Successor-in-Interest''
section of this notice, below.
Finally, on February 28, 2008, we requested additional information
from Devi and Falcon regarding their reported U.S. sales of subject
merchandise. Because this information is not due until after the date
of these preliminary results, we will consider it for purposes of the
final results.
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
[[Page 12105]]
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 10 percent of
the product's total weight after being dusted, but prior to being
frozen; and 5) that is subjected to IQF freezing immediately after
application of the dusting layer. Battered shrimp is a shrimp-based
product that, when dusted in accordance with the definition of dusting
above, is coated with a wet viscous layer containing egg and/or milk,
and par-fried.
The products covered by this order are currently classified under
the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06,
0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18,
0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40,
1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided
for convenience and for customs purposes only and are not dispositive,
but rather the written description of the scope of this order is
dispositive.
Successor-in-Interest
In making a normal successor-in-interest determination, the
Department examines several factors including, but not limited to,
changes in: (1) management; (2) production facilities; (3) supplier
relationships; and (4) customer base. See Notice of Final Results of
Changed Circumstances Antidumping Duty Administrative Review:
Polychloroprene Rubber From Japan, 67 FR 58 (Jan. 2, 2002), and Brass
Sheet and Strip from Canada; Final Results of Antidumping Duty
Administrative Review, 57 FR 20460 (May 13, 1992). While no one of
these factors is dispositive, the Department will generally consider
the new company to be the successor to the previous company if its
resulting operation is not materially dissimilar to that of its
predecessor. See Industrial Phosphoric Acid from Israel; Final Results
of Antidumping Duty Changed Circumstances Review, 59 FR 6944 (Feb. 14,
1994); and Notice of Final Determination of Sales at Less Than Fair
Value and Affirmative Final Determination of Critical Circumstances:
Certain Orange Juice from Brazil, 71 FR 2183 (Jan. 13, 2006).
As noted above, during the course of this review, two Indian
producers/exporters of subject merchandise informed the Department that
they have changed their names and are now doing business under new
names. As a result, we are conducting investigations to determine
whether the new companies are successors-in-interest to the former
entities. Our findings are discussed below.
A. Asvini
In April 2007, Asvini submitted a consolidated response to the
Department's Q&V questionnaire on behalf of itself and Asvini Fisheries
Limited. In this submission, Asvini informed the Department that the
two companies are the same entity, and that, until March 2005, Asvini
had operated under the name Asvini Fisheries Limited. Asvini provided a
``Fresh Certificate of Incorporation Consequent on Change of Name''
demonstrating that Asvini Fisheries Limited was converted from a public
company to a private company at that time and renamed Asvini Fisheries
Private Limited.
In January 2008, based on Asvini's assertions in its April 2007
submission, the Department notified all interested parties that it
intended to rescind the review with respect to Asvini Fisheries Limited
because it considered this company name to be a duplicate of Asvini.
See the Intent to Rescind Memo. At that time, we afforded all
interested an opportunity to comment on this action. On January 11,
2008, Asvini requested that the Department not rescind the review for
Asvini Fisheries Limited because, although this company name no longer
legally existed during the POR, Asvini continued to use it to make
shipments of subject merchandise to the United States. According to
Asvini, this occurred because the customs bond required by CBP was
still in the name of Asvini Fisheries Limited and CBP insisted that the
company name on the entry documents conform to the bond. On February 5,
2008, we requested information related to Asvini's name change to
determine if Asvini is the successor-in-interest to Asvini Fisheries
Limited. Specifically, we requested that Asvini address any changes in
the four factors noted above (i.e., management, production facilities
for the subject merchandise, supplier relationships, and customer base)
in the former company and the reincorporated entity.
On February 19, 2008, Asvini responded to the Department's request.
In this submission, Asvini provided evidence that, in March 2005,
Asvini Fisheries Limited changed its name to Asvini Fisheries Private
Limited, and that the name change had no effect on the company's
operations. According to Asvini, there were no changes to Asvini
Fisheries Limited's management, production facilities for the subject
merchandise, supplier relationships, or customer base as a result of
the change in corporate structure. Specifically, Asvini maintained that
the only change as a result of the name change was to convert the
company from a public limited company under Indian law to a private
limited company.
Based on our analysis of Asvini's February 19, 2008, submission, we
preliminarily find that Asvini Fisheries Limited's organizational
structure, management, production facilities, supplier relationships,
and customers have remained essentially unchanged. Further, we
preliminarily find that Asvini operates as the same business entity as
Asvini Fisheries Limited with respect to the production and sale of
[[Page 12106]]
shrimp. Thus, we preliminarily find that Asvini is the successor-in-
interest to Asvini Fisheries Limited, and, as a consequence, the
Department has treated these companies as the same entity for purposes
of this proceeding. For further discussion, see the memorandum to James
Maeder, Office Director, from Henry Almond, Analyst, entitled,
``Successor-In-Interest Determination for Asvini Fisheries Private
Limited and Asvini Fisheries Limited in the 2006-2007 Antidumping Duty
Administrative Review of Certain Frozen Warmwater Shrimp from India,''
dated February 28, 2008.
B. Surya
In May 2007, Surya informed the Department that the company changed
its name at the beginning of the POR to Suryamitra, and it is now doing
business under this new name. As a result, on June 13, 2007, we
requested that Suryamitra address the four factors noted above (i.e.,
management, production facilities for the subject merchandise, supplier
relationships, and customer base) with respect to this change in name
in order to determine whether Suryamitra is the successor-in-interest
to Surya.
On June 27, 2007, Suryamitra responded to the Department's request.
In this submission, Suryamitra provided evidence that, in February
2006, Surya changed its name to Suryamitra, and that the name change
had no effect on the company's operations. According to this evidence,
Suryamitra explained that there were no changes to Surya's management,
production facilities for the subject merchandise, supplier
relationships, or customer base as a result of the change in corporate
structure. Specifically, Suryamitra maintained that the only change as
a result of the name change was to convert the company from a
partnership firm under Indian law to a private limited company. On
January 29, 2008, we requested additional documentation from Suryamitra
to support its statements that the name change did not affect its
production facilities, supplier relationships, and customer base.
Suryamitra provided this information on February 27, 2008.
Based on our analysis of Suryamitra's June 27, 2007, and February
27, 2008, submissions, we preliminarily find that Surya's
organizational structure, management, production facilities, supplier
relationships, and customers have remained essentially unchanged.
Further, we preliminarily find that Suryamitra operates as the same
business entity as Surya with respect to the production and sale of
shrimp. Thus, we preliminarily find that Suryamitra is the successor-
in-interest to Surya and, as a consequence, the Department has treated
these companies as the same entity for purposes of this proceeding. For
further discussion, see the memorandum to James Maeder, Office
Director, from Elizabeth Eastwood, Senior Analyst, entitled,
``Successor-In-Interest Determination for Surya Marine Exports and
Suryamitra Exim Pvt. Ltd. in the 2006-2007 Antidumping Duty
Administrative Review of Certain Frozen Warmwater Shrimp from India,''
dated February 28, 2008.
Collapsing the Kadalkanny Group
As noted above, on April 23, 2007, the Kadlakanny Group submitted a
consolidated response to the Department's Q&V questionnaire. In October
and December 2007, we received information from these companies
regarding their relationships with each other during the POR. After an
analysis of this information, we determined that, in accordance with 19
CFR 351.401(f), it is appropriate to collapse these entities for
purposes of this review because: 1) entities within the group are
affiliated and have production facilities for identical or similar
merchandise that would not require significant retooling in order to
restructure manufacturing priorities; and 2) a significant potential
for manipulation exists due to common ownership, overlapping management
and board of directors, and intertwined operations. For further
discussion, see the memorandum from The Team to James Maeder, Director,
Office 2, entitled ``Whether to Collapse Kadalkanny Frozen Foods,
Edhayam Frozen Foods Pvt. Ltd., Diamond Seafood Exports, and Theva &
Co. in the 2006-2007 Antidumping Duty Administrative Review of Certain
Frozen Warmwater Shrimp from India,'' dated December 20, 2007.
Preliminary Partial Rescission of Review
As noted above, in February 2007, the Department received timely
requests, in accordance with 19 CFR 351.213(b)(1), from the petitioner
and the LSA to conduct a review of the four Indian producers/exporters
of subject merchandise in the Kadalkanny Group. The Department
initiated a review of these four companies and requested that they
supply data on the quantity and value of their exports of shrimp during
the POR. In April 23, 2007, the Kadalkanny Group submitted a
consolidated response to the Department's Q&V questionnaire, in which
it indicated that only one of its members (i.e., Kadalkanny) exported
subject merchandise to the United States during the POR.
Both the petitioner and the LSA withdrew their administrative
review requests for Kadalkanny. Moreover, we confirmed with CBP the
claims made by two additional members of this group, Diamond and Theva,
that they had no shipments of subject merchandise during the POR.
Finally, on January 17 and February 7, 2008, we received information
from Edhayam which demonstrated that its sole entry of subject
merchandise during the POR was not a reportable transaction because it
was a free sample. Therefore, in accordance with 19 CFR 351.213(d)(3),
and consistent with the Department's practice, we are preliminarily
rescinding our review with respect to the Kadalkanny Group. See, e.g.,
Certain Steel Concrete Reinforcing Bars From Turkey; Final Results,
Rescission of Antidumping Duty Administrative Review in Part, and
Determination To Revoke in Part, 70 FR 67665, 67666 (Nov. 8, 2005).
In addition, also as noted above, in October 2007 MPEDA requested
that the Department rescind the administrative review with respect to
the following Indian companies: 1) those exporters for which the review
was requested solely by either the petitioner or the LSA, based on the
claim that these requests did not meet the requirement of 19 CFR
351.213(b); and 2) any exporters which are not registered with MPEDA
and did not respond to the Department's request for information, based
on the claim that these companies do not have export licenses and are
not permitted to export products from India (and, thus, could not have
shipped subject merchandise to the United States during the POR). After
considering these requests, we find that there is no basis to rescind
this administrative review for any companies other than those in the
Kadalkanny Group. Specifically, regarding MPEDA's first point, under 19
CFR 351.213(b), a party requesting an administrative review must list
the individual exporters or producers for which it is requesting
administrative reviews and state why it desires the Department to
review those particular exporters or producers. The review requests
submitted by both the petitioner and the LSA satisfied the requirements
of 19 CFR 351.213(b), and thus there is no basis to rescind the
administrative reviews requested by these parties. Regarding MPEDA's
second point, under the regulations the Department may only rescind
administrative reviews for which the
[[Page 12107]]
requester maintains its request if the Department concludes that the
respondent had no shipments during the POR pursuant to 19 CFR
351.213(d)(3). We have examined the evidence placed on the record by
MPEDA to demonstrate that certain respondents could not have shipped
subject merchandise during the POR and find that this information is
contradicted by information placed on the record by other parties to
this proceeding. Specifically, we note that certain of the companies
that MPEDA claims are prohibited from exporting subject merchandise
did, in fact, provide data on their exports of such merchandise to the
Department in their Q&V questionnaire responses, and thus the
information submitted by MPEDA is not reliable. See, e.g., the April
20, 2007, Q&V questionnaire response of Devi Sea Foods Limited; and the
April 23, 2007, Q&V questionnaire responses of Asvini Fisheries
Limited, Selvam Exports Private Limited, Asvini Exports, Devi Fisheries
Limited, Satya Seafoods Private Limited, Usha Seafoods, Five Star
Marine Exports Private Limited, Sagar Grandhi Exports Pvt. Ltd., GVR
Exports Pvt. Ltd., Star Agro Marine Exports Private Limited, Wellcome
Fisheries Limited, and Vinner Marine. Further, because our review
covers the first party in the commercial chain that had knowledge that
the merchandise was ultimately destined for the United States, the mere
fact that a company subject to the review did not have an export
license and was not the official exporter does not disqualify it from
the review or otherwise require that we rescind the review of these
companies. See Certain Frozen Warmwater Shrimp from India: Final
Results and Partial Rescission of Antidumping Duty Administrative
Review, 72 FR 52055 (Sept. 12, 2007), and accompanying Issues and
Decisions Memorandum at Comment 12 (citing Hyundai Elecs. Indus. Co. v.
United States, 342 F. Supp.2d 1141, 1146 (CIT 2004)); and Certain Cut-
to-Length Carbon-Quality Steel Plate Products From Italy: Final Results
and Partial Rescission of Antidumping Duty Administrative Review, 71 FR
39299 (July 12, 2006), and accompanying Issues and Decisions Memorandum
at Comment 1 (``[U]nder section 772(a) of the Act, the basis for export
price is the price at which the first party in the chain of
distribution who has knowledge of the U.S. destination of the
merchandise sells the subject merchandise, either directly to a U.S.
purchaser or to an intermediary such as a trading company. The party
making such a sale, with knowledge of the destination, is the
appropriate party to be reviewed.''). Consequently, we preliminarily
determine that it is not appropriate to rely upon the information
submitted by MPEDA or to partially rescind the review based on MPEDA's
October 19, 2007, request.
Application of Facts Available
Section 776(a) of the Tariff Act of 1930, as amended, provides that
the Department will apply ``facts otherwise available'' if, inter alia,
necessary information is not available on the record or an interested
party: 1) withholds information that has been requested by the
Department; 2) fails to provide such information within the deadlines
established, or in the form or manner requested by the Department,
subject to subsections (c)(1) and (e) of section 782 of the Act; 3)
significantly impedes a proceeding; or 4) provides such information,
but the information cannot be verified.
As discussed in the ``Background'' section above, in April 2007,
the Department requested that all companies subject to review respond
to the Department's Q&V questionnaire for purposes of mandatory
respondent selection. The original deadline to file a response was
April 23, 2007. Of the 319 companies initially subject to review,
numerous companies did not respond to the Department's initial requests
for information. Subsequently, in May 2007 and then again in June 2007,
the Department issued letters to these companies affording them
additional opportunities to submit a response to the Department's Q&V
questionnaire. However, 126 companies also failed to respond to the
Department's final requests for Q&V data.\6\ On February 25, 2008, the
Department placed documentation on the record confirming delivery of
the questionnaires to each of these companies. See the memorandum to
the File from Elizabeth Eastwood, Senior Analyst, entitled, ``Placing
Delivery Information on the Record of the 2006-2007 Antidumping Duty
Administrative Review on Certain Frozen Warmwater Shrimp from India,''
dated February 25, 2008. By failing to respond to the Department's Q&V
questionnaire, these companies withheld requested information and
significantly impeded the proceeding. Thus, pursuant to sections
776(a)(2)(A) and (C) of the Act, because these companies did not
respond to the Department's questionnaire, the Department preliminarily
finds that the use of total facts available is warranted.
---------------------------------------------------------------------------
\6\ These companies are listed in the ``Preliminary Results of
the Review'' section of this notice under the heading ``AFA Rate
Applicable to the Following Companies.''
---------------------------------------------------------------------------
Furthermore, one additional company, Gajula, claimed that it made
no shipments of subject merchandise to the United States during the
POR. However, because we were unable to confirm the accuracy of
Gajula's claim with CBP, we requested further information/clarification
from this exporter. Gajula responded to the Department's inquiry via e-
mail on August 16, 2007, but did not indicate if its submission
contained either public or business proprietary information. Therefore,
on August 16, 2007, we informed Gajula via e-mail of the Department's
filing requirements. See the memorandum to the File from Nichole Zink,
Analyst, entitled, ``Placing E-mail to Gajula Exim (P) Ltd. on the
Record in the 2006-2007 Antidumping Duty Administrative Review of
Certain Frozen Warmwater Shrimp from India'' (First Gajula E-Mail
Memo), dated August 16, 2007. On August 22, 2007, Gajula submitted a
hard copy of its response, but again failed to follow the Department's
filing requirements and failed to indicate if the submission contained
business proprietary or public information. On September 7, 2007, we
issued a letter to Gajula again informing the company of the
Department's filing requirements, providing information regarding the
treatment of proprietary information and the preparation of a public
version of a response, and requiring it to properly file its response.
On September 29, 2007, Gajula faxed a letter to the Department in which
it stated that the information contained in its August submission
should be treated as business proprietary information. However, Gajula
did not indicate the specific information in the August submission
which should be designated as business proprietary. As a result, on
October 1 and 17, 2007, we provided Gajula additional detailed
instructions regarding the treatment of proprietary information and the
preparation of a public version of a response, and we again required it
to properly file its submissions on the record of this proceeding. See
the memorandum to the File from Elizabeth Eastwood, Senior Analyst,
entitled, ``Placing October E-Mail Correspondence with Gajula Exim (P)
Ltd. on the Record of the 2006-2007 Antidumping Duty Administrative
Review of Certain Frozen Warmwater Shrimp from India'' (Second Gajula
E-Mail Memo), dated October 17, 2007. Gajula failed to respond to the
Department's October communications
[[Page 12108]]
and did not remedy the deficiencies in its August submission.
Although the Department afforded Gajula multiple opportunities to
correct the procedural deficiencies in its response, it failed to do
so. By failing to respond to the Department's requests, Gajula withheld
requested information and significantly impeded the proceeding.
Consequently, pursuant to sections 776(a)(2)(A) and (C) of the Act, the
Department preliminarily finds that the use of total facts available
for Gajula is appropriate.
According to section 776(b) of the Act, if the Department finds
that an interested party fails to cooperate by not acting to the best
of its ability to comply with requests for information, the Department
may use an inference that is adverse to the interests of that party in
selecting from the facts otherwise available. Adverse inferences are
appropriate ``to ensure that the party does not obtain a more favorable
result by failing to cooperate than if it had cooperated fully.'' See
Statement of Administrative Action accompanying the Uruguay Round
Agreements Act, H.R. Rep. No. 103-316, Vol. 1, at 870 (1994) (SAA),
reprinted in 1994 U.S.C.C.A.N. 4040, 4198-99. Furthermore,
``affirmative evidence of bad faith on the part of a respondent is not
required before the Department may make an adverse inference.'' See
Antidumping Duties; Countervailing Duties, 62 FR 27296, 27340 (May 19,
1997); see also Nippon Steel Corp. v. United States, 337 F.3d 1373,
1382-83 (Fed. Cir. 2003) (Nippon). We preliminarily find that each of
the 127 companies listed under the heading ``AFA Rate Applicable to the
Following Companies'' in the ``Preliminary Results of the Review''
section of this notice, below, did not act to the best of their
abilities in this proceeding, within the meaning of section 776(b) of
the Act, because they failed to respond to the Department's requests
for information. Therefore, an adverse inference is warranted in
selecting from the facts otherwise available with respect to these
companies. See Nippon, 337 F.3d at 1382-83.
Section 776(b) of the Act provides that the Department may use as
AFA information derived from: 1) the petition; 2) the final
determination in the investigation; 3) any previous review; or 4) any
other information placed on the record.
The Department's practice, when selecting an AFA rate from among
the possible sources of information, has been to ensure that the margin
is sufficiently adverse ``as to effectuate the statutory purposes of
the adverse facts available rule to induce respondents to provide the
Department with complete and accurate information in a timely manner.''
See, e.g., Certain Steel Concrete Reinforcing Bars from Turkey; Final
Results and Rescission of Antidumping Duty Administrative Review in
Part, 71 FR 65082, 65084 (Nov. 7, 2006).
In order to ensure that the margin is sufficiently adverse so as to
induce cooperation, we have preliminarily assigned a rate of 110.9
percent, which is the highest rate alleged in the petition (as adjusted
at the initiation of the LTFV investigation). See Notice of Initiation
of Antidumping Duty Investigations: Certain Frozen and Canned Warmwater
Shrimp From Brazil, Ecuador, India, Thailand, the People's Republic of
China and the Socialist Republic of Vietnam, 69 FR 3876, 3880 (Jan. 27,
2004). The Department finds that this rate is sufficiently high as to
effectuate the purpose of the facts available rule (i.e., we find that
this rate is high enough to encourage participation in future segments
of this proceeding in accordance with section 776(b) of the Act).
Information from the petition constitutes secondary information and
section 776(c) of the Act provides that the Department shall, to the
extent practicable, corroborate that secondary information from
independent sources reasonably at its disposal. The Department's
regulations provide that ``corroborate'' means that the Department will
satisfy itself that the secondary information to be used has probative
value. See 19 CFR 351.308(d); see also SAA at 870. To the extent
practicable, the Department will examine the reliability and relevance
of the information to be used.
To corroborate the margins in the petition, we compared them to the
transaction-specific rates calculated for each respondent in this
review. We find that the highest rate alleged in the petition (as
adjusted at the initiation of the LTFV investigation), 110.9 percent,
is reliable and relevant because it is similar to a transaction-
specific margin calculated for a mandatory respondent and there is no
evidence on the record of this administrative review to indicate that
this transaction-specific margin is aberrational. See Notice of
Preliminary Results of Antidumping Duty Administrative Review; Partial
Rescission and Postponement of Final Results: Certain Softwood Lumber
Products from Canada, 71 FR 33964, 33968 (June 12, 2006). For the
company-specific information used to corroborate this rate, see the
memorandum to the File from Henry Almond, Analyst, entitled
``Corroboration of Adverse Facts Available Rate for the Preliminary
Results in the 2006-2007 Antidumping Duty Administrative Review of
Certain Frozen Warmwater Shrimp from India,'' dated February 28, 2008.
Therefore, we have determined that the 110.9 percent margin is
appropriate as AFA and are assigning it to the uncooperative companies
listed above.
Further, the Department will consider information reasonably at its
disposal as to whether there are circumstances that would render a
margin inappropriate. Where circumstances indicate that the selected
margin is not appropriate as AFA, the Department may disregard the
margin and determine an appropriate margin. See, e.g., Fresh Cut
Flowers from Mexico; Final Results of Antidumping Duty Administrative
Review, 61 FR 6812, 6814 (Feb. 22, 1996) (where the Department
disregarded the highest calculated margin as AFA because the margin was
based on a company's uncharacteristic business expense resulting in an
unusually high margin). Therefore, we examined whether any information
on the record would discredit the selected rate as reasonable facts
available. We were unable to find any information that would discredit
the selected AFA rate.
Because we did not find evidence indicating that the selected
margin is not appropriate and because this margin is similar to a
transaction-specific margins calculated for a mandatory respondent, we
have preliminarily determined that the 110.9 percent margin, as alleged
in the petition and adjusted at the initiation of the LTFV
investigation, is appropriate as AFA and are assigning this rate to the
127 companies listed under the heading ``AFA Rate Applicable to the
Following Companies'' in the ``Preliminary Results of the Review''
section of this notice, below.
Duty Absorption
On April 5, 2007, the petitioner requested that the Department
determine whether antidumping duties had been absorbed during the POR.
Section 751(a)(4) of the Act provides for 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. Although this review was initiated two years after the
publication of the order, Falcon, one of the two mandatory respondents,
made only
[[Page 12109]]
export price (EP) sales to unaffiliated parties during the POR, while
Devi, the other mandatory respondent, acted as the importer of record
for both its EP and constructed export price (CEP) sales during the
POR. Therefore, it is not appropriate to make a duty absorption
determination in this segment of the proceeding within the meaning of
section 751(a)(4) of the Act. See Agro Dutch Industries Ltd. v. United
States, 508 F.3d 1024, 1033 (Fed. Cir. 2007).
Comparisons to Normal Value
To determine whether sales of certain frozen warmwater shrimp from
India to the United States were made at less than NV, we compared the
EP or 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 and Falcon, 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 and Falcon 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 Canada (for Devi) and
Japan (for Falcon) 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 last U.S. sale. Where there were no sales of
identical non-broken 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. For
Devi and Falcon, where there were no sales of identical or similar
merchandise, we made product comparisons using constructed value (CV).
See section 773(a)(4) of the Act.
With respect to sales comparisons involving broken shrimp, we
compared Falcon's sales of broken shrimp in the United States to CV
because Falcon made no sales of broken shrimp in its comparison market.
In making the product comparisons, we matched foreign like products
based on the physical characteristics reported by Devi and Falcon 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.
Constructed Export Price/Export Price
For all U.S. sales made by Falcon, 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.
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, other miscellaneous shipment charges, foreign brokerage and
handling expenses, international freight expenses (including terminal
handling charges), marine insurance, U.S. customs duties, 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. We also made deductions for export taxes in
accordance with section 772(c)(2)(B) 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 and rebates 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, foreign warehousing
expenses, foreign inland insurance expenses, foreign brokerage and
handling expenses, ocean freight expenses, marine insurance expenses,
U.S. brokerage and handling expenses, U.S. customs duties (including
harbor maintenance fees and merchandise processing fees), U.S. inland
insurance expenses, U.S. inland freight expenses (i.e., 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., bank charges, export inspection agency (EIA) fees,
imputed credit expenses, and other direct selling expenses),
commissions, and indirect selling expenses (including inventory
carrying costs and other indirect selling expenses). For those sales
for which Devi had not received payment as of the date of its most
recent questionnaire response, we recalculated U.S. credit expenses
using the date of the preliminary results as the date of payment.
Finally, where commissions were paid in the U.S. market but not in the
comparison market, we offset these commissions by 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. We recalculated inventory carrying costs
using the manufacturing costs reported in Devi's most recent COP
database, adjusted as noted in the ``Calculation of Cost of
Production'' section of this notice, below.
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
[[Page 12110]]
expenses, loading and unloading expenses, trailer hire expenses,
foreign inland freight expenses, port charges, export survey charges,
terminal and 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. We also made deductions for export
taxes in accordance with section 772(c)(2)(B) 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 Devi and Falcon was insufficient to permit a
proper comparison with U.S. sales of the subject merchandise.
Therefore, we used sales to Canada and Japan as the basis for
comparison market sales for Devi and Falcon, respectively, in
accordance with section 773(a)(1)(C) of the Act and 19 CFR 351.404
because, among other things, sales of foreign like product in these
third country markets were the most similar to the subject merchandise.
See the Selection of Third Country Markets Memo for further discussion.
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),\7\ 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).
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\7\ 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 more remote from the factory than
the CEP LOT 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 did not
vary by channel of distribution. Devi reported performing the following
selling functions for its U.S. sales: handling of sales inquiries,
order processing, sales planning, personnel training, sales promotion,
warranty service, freight and delivery services (including pre-shipment
inspection, foreign transportation, export customs clearance, U.S.
import clearance, and U.S. transportation), inventory maintenance in
India, extension of credit to U.S. customers, and packing. These
selling activities can be generally grouped into four core 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 core selling
functions, we find that Devi performed sales and marketing, freight and
delivery services, inventory maintenance and warehousing, and warranty
and technical support for 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). We examined the selling activities performed
for third country sales and found that Devi performed the following
selling functions: handling of sales inquiries, order processing, sales
planning, personnel training, sales promotion, warranty service,
freight and delivery services (including pre-shipment inspection and
foreign transportation), inventory maintenance in India, extension of
credit to Canadian customers, and packing. Accordingly, based on the
core selling functions noted above, we find that Devi performed sales
and marketing, freight and delivery services, and 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 core selling functions performed for U.S. and third
country market customers do not differ. 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.
[[Page 12111]]
2. Falcon
Falcon reported that it made EP sales in the U.S. market to trading
companies and distributors. Because Falcon reported no difference in
the selling activities it performed for these two customer categories,
we find that there is only one channel of distribution for Falcon's EP
sales. We examined the selling activities performed for this channel
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; cold
storage and inventory maintenance; quality assurance related
activities; payment receipt; and packaging services. These selling
activities can be generally grouped into four core 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 core selling functions, 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, 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. 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; cold storage and inventory maintenance;
quality assurance related activities; payment receipt; and packaging
services. Accordingly, based on the core selling functions, we find
that Falcon 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 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 core selling functions performed for U.S. and third
country market customers do not differ. 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.
C. Cost of Production Analysis
We found that Devi had made sales below the COP in the LTFV
investigation, the most recently completed segment of this proceeding
as of the date the questionnaire was issued in this review, and such
sales were disregarded. See Notice of Preliminary Determination of
Sales at Less Than Fair Value, Postponement of Final Determination, and
Affirmative Preliminary Determination of Critical Circumstances:
Certain Frozen and Canned Warmwater Shrimp from India, 69 FR 47111,
47116-17 (Aug. 4, 2004); unchanged in 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) (LTFV Final Determination). Thus, in
accordance with section 773(b)(2)(A)(ii) of the Act, there are
reasonable grounds to believe or suspect that Devi made sales in the
third country market at prices below the cost of producing the
merchandise in the current review period.
Moreover, based on our analysis of the petitioner's allegation, we
found that there were reasonable grounds to believe or suspect that
Falcon's sales of frozen warmwater shrimp in the third country
comparison market were made at prices below their COP. Accordingly,
pursuant to section 773(b) of the Act, we initiated a sales-below-cost
investigation to determine whether Falcon's sales were made at prices
below their respective COPs. See the Sales-Below-Cost Memo for Falcon.
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 included hatchery expenses, as well as Devi's reported input
taxes, in the calculation of Devi's total cost of manufacture.
ii. We recalculated Devi's financial and G&A expense ratios to
include windmill power generation expenses and hatchery expenses in the
cost of goods sold used as the denominator of both ratios. In
calculating Devi's financial expense ratio, we also added interest on a
term loan for the windmill to net interest expenses.
For further discussion of these adjustments, see the memorandum from
Laurens van Houten, Senior 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 February 28, 2008.
b. Falcon
We relied on the cost database submitted by Falcon in its February
19, 2008, response.
2. Test of Comparison Market Sales Prices
On a product-specific basis, we compared the adjusted weighted-
average COP to the third country 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, rebates, direct and
indirect selling expenses and packing expenses, revised where
appropriate, as discussed below under the ``Price-to-Price
Comparisons'' section.
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
[[Page 12112]]
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
and Falcon'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
useable third country sales in the ordinary course of trade, we
compared CEPs or EPs, as appropriate, to the 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 made deductions for export taxes, in accordance with
section 773(a)(6)(B)(iii) of the Act. See Notice of Preliminary
Determination of Sales at Less Than Fair Value and Postponement of
Final Determination: Carbon and Certain Alloy Steel Wire Rod from
Brazil, 67 FR 18165, 18169 (Apr. 15, 2002) (Steel Wire Rod from Brazil
Preliminary Determination), unchanged in Notice of Final Determination
of Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat
Products From Brazil, 67 FR 62134 (Oct. 3, 2002) (Steel Wire Rod from
Brazil Final Determination). We also made deductions for foreign inland
freight expenses, other miscellaneous shipment charges, foreign
brokerage and handling expenses, 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, EIA fees, imputed credit expenses, and other direct selling
expenses), and commissions. 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 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.
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 (including bank charges, EIA fees, imputed
credit expenses, and other direct selling expenses), and commissions.
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 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.
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 delivered 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
made deductions from the starting price for export taxes, in accordance
with section 773(a)(6)(B)(iii) of the Act. See Steel Wire Rod from
Brazil Preliminary Determination, 67 FR at 18169, unchanged in Steel
Wire Rod from Brazil Final Determination. We also made deductions,
where appropriate, from the starting price for cold storage expenses,
loading and unloading expenses, trailer hire expenses, inland freight
expenses, port charges, export survey charges, other miscellaneous
shipment charges, foreign brokerage and handling expenses, and
international freight expenses (including terminal and 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, imputed credit expenses, bank fees, EIA fees, export
credit guarantee corporation premiums, outside inspection/lab expenses,
letter of credit amendment charges, and other miscellaneous selling
expenses. For those sales for which Falcon had not received payment as
of the date of its most recent questionnaire response, we recalculated
U.S. credit expenses using the date of the preliminary results as the
date of payment. 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 inventory carrying costs
using the manufacturing costs reported in Falcon's most recent COP
database.
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.
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 frozen warmwater shrimp products for which we could not determine
the NV based on comparison market sales, either because there were no
useable sales of a comparable product or 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
[[Page 12113]]
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)(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 those U.S. sales for which the respondents had not
received payment as of the date of their most recent questionnaire
responses, we recalculated U.S. credit expenses using the date of the
preliminary results as the date of payment. For comparisons to Devi's
CEP, we made circumstance-of-sale adjustments by deducting comparison
market direct selling expenses from CV. Id. We also made adjustments,
when applicable, for comparison market indirect selling expenses to
offset U.S. commissions in EP and CEP comparisons. See 19 CFR
351.410(e).
Currency Conversion
We made currency conversions into U.S. dollars for all spot
transactions by Devi and Falcon 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 the currency in which
certain sales transactions were made into 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
foreign currency in the forward sale agreement to convert the foreign
currency. See LTFV Final Determination and accompanying Issues and
Decisions Memorandum at Comment 6; see also Certain Frozen Warmwater
Shrimp from India: Preliminary Results and Partial Rescission of
Antidumping Duty Administrative Review, 72 FR 10658, 10667 (Mar. 9,
2007), unchanged in 2004-2006 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, 2006, through
January 31, 2007, as follows:
------------------------------------------------------------------------
Percent
Manufacturer/Exporter Margin
------------------------------------------------------------------------
Devi Sea Foods Limited...................................... 0.70
Falcon Marine Exports Limited............................... 1.69
------------------------------------------------------------------------
Review-Specific Average Rate Applicable to the Following Companies:\8\
---------------------------------------------------------------------------
\8\ This rate is based on the weighted average of the margins
calculation for those companies selected for individual review,
excluding de minimis margins or margins based entirely on AFA.
------------------------------------------------------------------------
Percent
Manufacturer/Exporter Margin
------------------------------------------------------------------------
Ananda Aqua Exports (P) Ltd................................. 1.09
Ananda Foods................................................ 1.09
Andaman Sea Foods Pvt. Ltd.................................. 1.09
Angelique International Ltd................................. 1.09
Apex Exports................................................ 1.09
Asvini Exports.............................................. 1.09
Asvini Fisheries Limited/Asvini Fisheries Private Limited... 1.09
Avanti Feeds Limited........................................ 1.09
Bhatsons Aquatic Products................................... 1.09
Bluepark Seafoods Pvt. Ltd.................................. 1.09
Calcutta Seafoods........................................... 1.09
Castlerock Fisheries Pvt. Ltd............................... 1.09
Choice Canning Company...................................... 1.09
Choice Trading Corporation Pvt. Ltd......................... 1.09
Coreline Exports............................................ 1.09
Devi Fisheries Limited...................................... 1.09
Digha Sea Food Exports...................................... 1.09
Five Star Marine Exports Private Limited.................... 1.09
GVR Exports Pvt. Ltd........................................ 1.09
Gayatri Sea Foods........................................... 1.09
Haripriya Marine Export Pvt. Ltd............................ 1.09
Hindustan Lever, Ltd........................................ 1.09
IFB Agro Industries Limited................................. 1.09
ITC Limited, International Business Division................ 1.09
Jaya Satya Marine Exports Pvt. Ltd.......................... 1.09
Jaya Lakshmi Sea Foods Pvt. Ltd............................. 1.09
K V Marine Exports.......................................... 1.09
Kings Marine Products....................................... 1.09
Konark Aquatics & Exports Pvt. Ltd.......................... 1.09
Magnum Estate Private Limited............................... 1.09
Magnum Export............................................... 1.09
Magnum Sea Foods Private Limited............................ 1.09
Mangala Marine Exim India Pvt. Ltd.......................... 1.09
Mangala Sea Products........................................ 1.09
NGR Aqua International...................................... 1.09
Navayuga Exports Ltd........................................ 1.09
Nekkanti Sea Foods Limited.................................. 1.09
Nila Sea Foods Pvt. Ltd..................................... 1.09
Penver Products (P) Ltd..................................... 1.09
RVR Marine Products Private Limited......................... 1.09
Raa Systems Pvt. Ltd........................................ 1.09
Raju Exports................................................ 1.09
Ram's Assorted Cold Storage Ltd............................. 1.09
S A Exports................................................. 1.09
Sagar Grandhi Exports Pvt. Ltd.............................. 1.09
Sai Marine Exports Pvt. Ltd................................. 1.09
Sandhya Marines Limited..................................... 1.09
Satya Seafoods Private Limited.............................. 1.09
Seagold Overseas Pvt. Ltd................................... 1.09
Selvam Exports Private Limited.............................. 1.09
Sprint Exports Pvt. Ltd..................................... 1.09
Sri Chandrakantha Marine Exports............................ 1.09
Sri Sakthi Marine Products P Ltd............................ 1.09
Star Agro Marine Exports Private Limited.................... 1.09
Sun-Bio Technology Limited.................................. 1.09
Surya Marine Exports/Suryamitra Exim Private Limited........ 1.09
Suvarna Rekha Exports Private Limited....................... 1.09
Suvarna Rekha Marines P Ltd................................. 1.09
The Liberty Group (Devi Marine Food Exports Private Limited/ 1.09
Kader Exports Private Limited/Kader Investment and Trading
Company Private Limited/Liberty Frozen Foods Private
Limited/Liberty Oil Mills Limited/Premier Marine Products/
Universal Cold Storage Private Limited)....................
The Waterbase Ltd........................................... 1.09
Usha Seafoods............................................... 1.09
Veejay IMPEX................................................ 1.09
Vinner Marine............................................... 1.09
Wellcome Fisheries Limited.................................. 1.09
------------------------------------------------------------------------
AFA Rate Applicable to the Following Companies:
------------------------------------------------------------------------
Percent
Manufacturer/Exporter Margin
------------------------------------------------------------------------
A.S. Marine Industries Pvt. Ltd............................. 110.90
Adani Exports Ltd........................................... 110.90
Aditya Udyog................................................ 110.90
Agri Marine Exports Ltd..................................... 110.90
Al Mustafa Exp & Imp........................................ 110.90
Alapatt Marine Exports...................................... 110.90
All Seas Marine P. Ltd...................................... 110.90
Alsa Marine & Harvests Ltd.................................. 110.90
Ameena Enterprises.......................................... 110.90
Anjani Marine Traders....................................... 110.90
Aqua Star Marine Foods...................................... 110.90
Arsha Seafood Exports Pvt. Ltd.............................. 110.90
ASF Seafoods................................................ 110.90
Ashwini Frozen Foods........................................ 110.90
Aswin Associates............................................ 110.90
Balaji Seafood Exports I Ltd................................ 110.90
Baraka Overseas Traders..................................... 110.90
Bell Foods (Marine Division)................................ 110.90
Bharat Seafoods............................................. 110.90
Bhisti Exports.............................................. 110.90
Bilal Fish Suppliers........................................ 110.90
Capital Freezing Complex.................................... 110.90
Cham Exports Ltd............................................ 110.90
Cham Ocean Treasures Co., Ltd............................... 110.90
Cham Trading Organization................................... 110.90
Chand International......................................... 110.90
[[Page 12114]]
Danda Fisheries............................................. 110.90
Dariapur Aquatic Pvt. Ltd................................... 110.90
Deepmala Marine Exports..................................... 110.90
Dhanamjaya Impex P. Ltd..................................... 110.90
Dorothy Foods............................................... 110.90
El-Te Marine Products....................................... 110.90
Excel Ice Services/Chirag Int'l............................. 110.90
Firoz & Company............................................. 110.90
Freeze Engineering Industries (Pvt. Ltd.)................... 110.90
Gajula Exim (P) Ltd......................................... 110.90
Gausia Cold Storage P. Ltd.................................. 110.90
Goan Bounty................................................. 110.90
Gold Farm Foods (P) Ltd..................................... 110.90
Golden Star Cold Storage.................................... 110.90
Gopal Seafoods.............................................. 110.90
Gtc Global Ltd.............................................. 110.90
Hanswati Exports P. Ltd..................................... 110.90
HMG Industries Ltd.......................................... 110.90
Honest Frozen Food Company.................................. 110.90
India CMS Adani Exports..................................... 110.90
India Seafoods.............................................. 110.90
Indian Seafood Corporation.................................. 110.90
Interfish................................................... 110.90
J R K Seafoods Pvt. Ltd..................................... 110.90
Kaushalya Aqua Marine Product Exports Pvt. Ltd.............. 110.90
Keshodwala Foods............................................ 110.90
Key Foods................................................... 110.90
King Fish Industries........................................ 110.90
Konkan Fisheries Pvt. Ltd................................... 110.90
Lakshmi Marine Products..................................... 110.90
Lansea Foods Pvt. Ltd....................................... 110.90
Laxmi Narayan Exports....................................... 110.90
M K Exports................................................. 110.90
M.R.H. Trading Company...................................... 110.90
Malabar Marine Exports...................................... 110.90
Mamta Cold Storage.......................................... 110.90
Marina Marine Exports....................................... 110.90
Marine Food Packers......................................... 110.90
Miki Exports International.................................. 110.90
Mumbai Kamgar MGSM Ltd...................................... 110.90
N.C. Das & Company.......................................... 110.90
Naik Ice & Cold Storage..................................... 110.90
Nas Fisheries Pvt Ltd....................................... 110.90
National Seafoods Company................................... 110.90
New Royal Frozen Foods...................................... 110.90
Noble Aqua Pvt. Ltd......................................... 110.90
Omsons Marines Ltd.......................................... 110.90
Padmaja Exports............................................. 110.90
Partytime Ice Pvt Ltd....................................... 110.90
Philips Foods India Pvt Ltd................................. 110.90
Premier Exports International............................... 110.90
R K Ice & Cold Storage...................................... 110.90
Rahul Foods (GOA)........................................... 110.90
Rahul International......................................... 110.90
Raj International........................................... 110.90
Ramalmgeswara Proteins & Foods Ltd.......................... 110.90
Rameshwar Cold Storage...................................... 110.90
Ravi Frozen Foods Ltd....................................... 110.90
Regent Marine Industries.................................... 110.90
Relish Foods................................................ 110.90
Royal Link Exports.......................................... 110.90
Rubian Exports.............................................. 110.90
Ruby Marine Foods........................................... 110.90
Ruchi Worldwide............................................. 110.90
S K Exports (P) Ltd......................................... 110.90
SLS Exports Pvt. Ltd........................................ 110.90
S S International........................................... 110.90
Sabri Food Products......................................... 110.90
Sagar Samrat Seafoods....................................... 110.90
Salet Seafoods Pvt Ltd...................................... 110.90
Samrat Middle East Exports (P) Ltd.......................... 110.90
Sarveshwari Ice & Cold Storage P Ltd........................ 110.90
Satyam Marine Exports....................................... 110.90
Sea Rose Marines (P) Ltd.................................... 110.90
Sealand Fisheries Ltd....................................... 110.90
Seaperl Industries.......................................... 110.90
Sharat Industries Ltd....................................... 110.90
Shimpo Exports.............................................. 110.90
Shipper Exporter National Steel............................. 110.90
Siddiq Seafoods............................................. 110.90
Skyfish..................................................... 110.90
Sonia Fisheries............................................. 110.90
Sourab...................................................... 110.90
Sreevas Export Enterprises.................................. 110.90
Sri Sidhi Freezers & Exporters Pvt. Ltd..................... 110.90
Star Fish Exports........................................... 110.90
Supreme Exports............................................. 110.90
The Canning Industries (Cochin) Ltd......................... 110.90
Tony Harris Seafoods Ltd.................................... 110.90
Tri Marine Foods Pvt. Ltd................................... 110.90
Trinity Exports............................................. 110.90
Tri-Tee Seafood Company..................................... 110.90
Ulka Seafoods (P) Ltd....................................... 110.90
Uniroyal Marine Exports Ltd................................. 110.90
Upasana Exports............................................. 110.90
V Marine Exports............................................ 110.90
Varnita Cold Storage........................................ 110.90
Veraval Marines & Chemicals P Ltd........................... 110.90
Vijayalaxmi Seafoods........................................ 110.90
Winner Seafoods............................................. 110.90
Z A. Food Products.......................................... 110.90
------------------------------------------------------------------------
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 351.224(b). Pursuant to
19 CFR 351.309(c), interested parties may submit cases briefs not later
than 30 days after the date of publication of this notice. Rebuttal
briefs, limited to issues raised in the case briefs, may be filed not
later than 35 days after the date of publication of this notice. See 19
CFR 351.309(d). Parties who submit case briefs or rebuttal briefs in
this proceeding are requested 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. 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.
Where Devi and Falcon reported the entered value for their U.S.
sales, 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 for which entered value was reported. For Falcon's U.S. sales
reported without entered values, we will calculate importer-specific
per-unit duty assessment rates by aggregating the total amount of
antidumping duties calculated for the examined sales and dividing this
amount by the total quantity of those sales. See 19 CFR 351.212(b)(1).
To determine whether the duty assessment rates are de minimis, in
accordance with the requirement set forth in 19 CFR 351.106(c)(2), we
will calculate importer-specific ad valorem ratios based on the
estimated entered value.
For the responsive companies which were not selected for individual
review, we will calculate an assessment rate based on the weighted
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
[[Page 12115]]
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 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 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)(1) of the Act and 19 CFR 351.221.
Dated: February 28, 2008.
Stephen J. Claeys,
Acting Assistant Secretary for Import Administration.
[FR Doc. E8-4417 Filed 3-5-08; 8:45 am]
BILLING CODE 3510-DS-S