[Federal Register Volume 79, Number 53 (Wednesday, March 19, 2014)]
[Notices]
[Pages 15310-15313]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-06081]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-802]
Certain Frozen Warmwater Shrimp From the Socialist Republic of
Vietnam: Notice of Reopening of the First Five-Year ``Sunset'' Review
of the Antidumping Duty Order
AGENCY: Enforcement and Compliance, formerly Import Administration,
International Trade Administration, Department of Commerce.
SUMMARY: On December 7, 2010, the Department of Commerce (``the
Department'') published the final results of the first sunset review of
the antidumping duty (``AD'') order on certain frozen warmwater shrimp
from the Socialist Republic of Vietnam (``Vietnam''). Certain
information has come to the Department's attention that may call into
question the integrity of the first sunset review and the information
on which the Department relied for its final results. The Department is
reopening the first sunset review to consider the new information and
invites the interested parties to comment on this information.
DATES: Effective Date: March 19, 2014.
FOR FURTHER INFORMATION CONTACT: Jerry Huang, AD/CVD Operations, Office
V, Enforcement and Compliance, U.S. Department of Commerce, 14th Street
and Constitution Avenue NW., Washington, DC, 20230; telephone: 202-482-
4047.
SUPPLEMENTARY INFORMATION:
Background
On December 7, 2010, the Department published the final results of
the first sunset review of the AD order on certain frozen warmwater
shrimp from Vietnam finding that revocation of the order would likely
lead to continuation or recurrence of dumping.\1\ On April 5, 2011, the
International Trade Commission (``the ITC'') published its
determination pursuant to section 751(c) of the Tariff Act of 1930, as
amended (``the Act'') that revocation of
[[Page 15311]]
the AD orders from Brazil, India, the People's Republic of China
(``PRC''), Thailand and Vietnam would be likely to lead to continuation
or recurrence of material injury to an industry in the United States
within a reasonably foreseeable time.\2\ On April 29, 2011, the
Department published the notice of continuation of these AD orders.\3\
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\1\ See Certain Frozen Warmwater Shrimp From the Socialist
Republic of Vietnam: Final Results of the First Five-year ``Sunset''
Review of the Antidumping Duty Order, 75 FR 75965 (December 7,
2010)(``Sunset Final Results'').
\2\ See Frozen Warmwater Shrimp From Brazil, India, the People's
Republic of China, Thailand and Vietnam, 76 FR 18782 (April 5,
2011).
\3\ See Certain Frozen Warmwater Shrimp From Brazil, India, the
People's Republic of China, Thailand and Vietnam: Continuation of
Antidumping Duty Orders, 76 FR 23972 (April 29, 2011).
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Subsequent to the publication of the Final Results, in a separate
proceeding concerning the AD order on certain frozen warmwater shrimp
from the PRC, Petitioners submitted to the Department certain
information released in conjunction with a federal criminal proceeding
before the United States District Court for the Central District of
California.\4\ This information may be relevant to the AD order on
shrimp from Vietnam. In particular, the information, which relates to
the time period considered in the sunset review, indicates that
Vietnamese exporters of shrimp may have engaged in a scheme to falsely
label seafood and evade payment of ADs.\5\ The Sentencing Report
states, among other things, that the ``scheme was undertaken to . . .
escape anti-dumping duties and/or scrutiny of possible circumvention of
anti-dumping duties. . . .'' \6\
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\4\ See Administrative Review of Certain Frozen Warmwater Shrimp
From the People's Republic of China: Final Results, Partial
Rescission of Sixth Antidumping Duty Administrative Review and
Determination Not to Revoke in Part, 77 FR 53856, 53857 (September
4, 2012) and the accompanying Issues and Decisions Memorandum at
Company Specific Issues (Hilltop) and Comments 1-2; see also Certain
Frozen Warmwater Shrimp From the People's Republic of China: Notice
of Final Reconsideration of a Changed Circumstances Review, 78 FR
76106 (December 16, 2013) and the accompanying Issues and Decisions
Memorandum at Comment 1. Petitioners also referenced this
information in a submission made in an administrative review of this
Vietnam shrimp proceeding, but did not place it on the
administrative record of that segment. See Certain Frozen Warmwater
Shrimp From the Socialist Republic of Vietnam; Final Results of Re-
conducted Administrative Review of Grobest & I-Mei Industrial
(Vietnam) Co., Ltd. and Intent Not to Revoke; 2008--2009, signed
March 13, 2014, publication pending.
\5\ See United States' Position with Respect to Sentencing, at
2, 5 (February 6, 2012) (``Sentencing Report'').
\6\ According to the Sentencing Report, the scheme involving
Vietnamese shrimp was originally uncovered when the NOAA Office of
Enforcement and Immigration and Customs Enforcement (``ICE'')
investigated several companies importing Vietnamese catfish, which
was subject to a separate antidumping duty order, in boxes labeled
as other species that were not subject to antidumping duties, such
as ``sole,'' ``grouper,'' ``carp,'' ``channa,'' etc. See Sentencing
Report at 19.
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According to the Sentencing Report, a U.S. importer, Ocean Duke,\7\
imported shrimp from countries subject to an AD order, ``particularly
from Vietnam'' and ``labeled it, falsely, as product of Cambodia (thus,
not subject to anti-dumping duties.).'' \8\ Moreover, the Sentencing
Report indicates that subsequent to the imposition of ADs on shrimp
from Vietnam in 2004,\9\ ``between May 2004 and July 2005 Ocean Duke
imported as product of Cambodia over 15 million pounds of aquacultured,
or farmed shrimp, with a declared value of over $42 million.'' \10\ The
Sentencing Report also states that ``during all of 2004 and 2005,
Cambodia produced only an estimated 385,000 pounds of aquacultured
shrimp.'' \11\ According to the Sentencing Report, internal emails and
statements of former employees confirm the existence of significant
shipments of ``Vietnamese shrimp through Cambodia, thus making possible
the export of 15 million pounds,'' i.e., many times greater than
Cambodia's entire aquacultured shrimp production.\12\
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\7\ Ocean Duke was found to be an affiliate of a Vietnamese
exporter during the time period. See e.g., Certain Frozen Warmwater
Shrimp From the Socialist Republic of Vietnam: Preliminary Results
of the First Administrative Review and New Shipper Review, 72 FR
10689, 10691-93 (March 9, 2007) (unchanged in final results, Certain
Frozen Warmwater Shrimp From the Socialist Republic of Vietnam:
Final Results of the First Antidumping Duty Administrative Review
and New Shipper Review, 72 FR 52052 (September 12, 2007)).
\8\ See Sentencing Report at 5.
\9\ The Department instructed U.S. Customs and Border Protection
to begin collecting duties as of July 16, 2004, the date of
publication of its affirmative preliminary determination of sales at
less than fair value. See Notice of Preliminary Determination of
Sales at Less Than Fair Value, Negative Preliminary Determination of
Critical Circumstances and Postponement of Final Determination;
Certain Frozen and Canned Warmwater Shrimp From the Socialist
Republic of Vietnam, 69 FR 42672, 42686 (July 16, 2004).
\10\ See Sentencing Report at 5.
\11\ Id. at 5 and at Attachments 1-3 (documenting Cambodian
shrimp production data).
\12\ Id. at 5.
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The Sentencing Report indicates that ``U.S. Customs records
establish that in 2002 and 2003, Ocean Duke imported shrimp from
Vietnam, Thailand, China, and occasionally Indonesia; but not
Cambodia.'' \13\ On January 27, 2004, the Department published in the
Federal Register the notice of initiation of AD investigations on
certain warmwater shrimp from various countries, including Vietnam.\14\
These investigations did not involve Cambodian shrimp.\15\
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\13\ Id. at 20 (emphasis in the original) and Attachments 7 and
8.
\14\ See Initiation of Antidumping Duty Investigations, 69 FR
3876 (January 27, 2004) (``Notice of Initiation'').
\15\ Id.
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Relying on U.S. Customs records, the Sentencing Report states that
in May 2004, i.e., within months from the initiation of the AD
investigation on shrimp from Vietnam, Ocean Duke ceased importing
shrimp from Vietnam and simultaneously began importing significant
quantities of shrimp from Cambodia.\16\ During the period from May
through December 2003, i.e., immediately prior to the initiation of the
AD investigation on shrimp from Vietnam, Ocean Duke imported 52
shipments of shrimp from Vietnam and none from Cambodia.\17\ In
contrast, during the same period in 2004, i.e., after the AD
investigation was initiated, Ocean Duke imported no shrimp from Vietnam
and 327 shipments of shrimp from Cambodia.\18\ The email correspondence
to the U.S. importer, dated May 13, 2004, states in part: ``We are
shipping some containers of [shrimp] . . . . from VN to Cambodia for
repacking. We really want to reuse all white cartons of Vietnam and
stick MC [master carton] labels in Cambodia.'' \19\
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\16\ See Sentencing Report at 20 and Attachment 10.
\17\ Id. at 20-21 and Attachments 9 and 10.
\18\ Id.
\19\ Id. at Attachment 14.
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Scope of the Order \20\
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\20\ On April 26, 2011, the Department amended the antidumping
duty order to include dusted shrimp. See Certain Frozen Warmwater
Shrimp From Brazil, India, the People's Republic of China, Thailand,
and the Socialist Republic of Vietnam: Amended Antidumping Duty
Orders in Accordance with Final Court Decision, 76 FR 23227 (April
26, 2011). Because dusted shrimp were excluded from the scope of the
order during the sunset review period, dusted shrimp continue to be
excluded for purposes of this re-opened sunset review.
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The scope of the order includes certain frozen warmwater shrimp and
prawns, whether wild-caught (ocean harvested) or farm-raised (produced
by aquaculture), head-on or head-off, shell-on or peeled, tail-on or
tail-off,\21\ deveined or not deveined, cooked or raw, or otherwise
processed in frozen form.
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\21\ ``Tails'' in this context means the tail fan, which
includes the telson and the uropods.
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The frozen warmwater shrimp and prawn products included in the
scope of the order, regardless of definitions in the Harmonized Tariff
Schedule of the United States (``HTSUS''), are products which are
processed from warmwater shrimp and prawns through freezing and which
are sold in any count size.
The products described above may be processed from any species of
warmwater shrimp and prawns. Warmwater shrimp and prawns are generally
classified in, but are not limited to, the Penaeidae family. Some
examples of the farmed and wild-caught
[[Page 15312]]
warmwater species include, but are not limited to, whiteleg shrimp
(Penaeus vannemei), banana prawn (Penaeus merguiensis), fleshy prawn
(Penaeus chinensis), giant river prawn (Macrobrachium rosenbergii),
giant tiger prawn (Penaeus monodon), redspotted shrimp (Penaeus
brasiliensis), southern brown shrimp (Penaeus subtilis), southern pink
shrimp (Penaeus notialis), southern rough shrimp (Trachypenaeus
curvirostris), southern white shrimp (Penaeus schmitti), blue shrimp
(Penaeus stylirostris), western white shrimp (Penaeus occidentalis),
and Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed with marinade, spices or
sauce are included in the scope of the order. In addition, food
preparations, which are not ``prepared meals,'' that contain more than
20 percent by weight of shrimp or prawn are also included in the scope
of the order.
Excluded from the scope are: (1) Breaded shrimp and prawns (HTSUS
subheading 1605.20.10.20); (2) shrimp and prawns generally classified
in the Pandalidae family and commonly referred to as coldwater shrimp,
in any state of processing; (3) fresh shrimp and prawns whether shell-
on or peeled (HTSUS subheadings 0306.23.00.20 and 0306.23.00.40); (4)
shrimp and prawns in prepared meals (HTSUS subheading 1605.20.05.10);
(5) dried shrimp and prawns; (6) canned warmwater shrimp and prawns
(HTSUS subheading 1605.20.10.40); (7) certain dusted shrimp; and (8)
certain battered shrimp. Dusted shrimp is a shrimp-based product: (1)
That is produced from fresh (or thawed-from-frozen) and peeled shrimp;
(2) to which a ``dusting'' layer of rice or wheat flour of at least 95
percent purity has been applied; (3) with the entire surface of the
shrimp flesh thoroughly and evenly coated with the flour; (4) with the
non-shrimp content of the end product constituting between four and 10
percent of the product's total weight after being dusted, but prior to
being frozen; and (5) that is subjected to IQF freezing immediately
after application of the dusting layer. Battered shrimp is a shrimp-
based product that, when dusted in accordance with the definition of
dusting above, is coated with a wet viscous layer containing egg and/or
milk, and par-fried.
The products covered by the order are currently classified under
the following HTSUS subheadings: 0306.13.00.03, 0306.13.00.06,
0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18,
0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40,
1605.20.10.10, and 1605.20.10.30. These HTSUS subheadings are provided
for convenience and for customs purposes only and are not dispositive,
but rather the written description of the scope of the order is
dispositive.
Analysis
The Department determines that the information contained in the
Sentencing Report warrants a reopening of the first sunset review of
the AD order on certain frozen warmwater shrimp from Vietnam. In
accordance with requirements of the Act, in the sunset review, the
Department examined whether revocation of the AD order would be likely
to lead to a continuation or recurrence of dumping. Sections
752(c)(1)(A) and (B) of the Act provide that, in making this
determination, the Department shall consider both the weighted-average
dumping margins determined in the investigation and subsequent reviews,
and the volume of imports of the subject merchandise for the period
before and the period after the issuance of the AD order. The
information contained in the Sentencing Report was not available to the
Department at the time of the sunset review, and thus was not
considered by the Department in its likelihood determination.
The information in the Sentencing Report suggesting the existence
of a multi-year transnational scheme to avoid payment of ADs on
Vietnamese shrimp is potentially relevant to the issues considered in
the sunset review, including whether dumping is likely to continue or
recur if the AD order is revoked. We are concerned that the record
examined in the sunset review may have been tainted by fraud, which may
have affected the completeness, accuracy and reliability of the
information considered by the Department. For example, a significant
portion of Vietnamese shrimp exporters to the United States
(collectively referred to as Vietnamese Shrimp Exporters) \22\ actively
participated in the sunset review, making joint submissions, in which
they argued in part that certain import volume declines occurred
because of supply and demand issues.\23\ In making its joint
submissions to the Department (and certifying to their accuracy),
however, the Vietnamese Shrimp Exporters (which included the affiliate
of Ocean Duke) did not present information to the Department related to
the findings in the Sentencing Report regarding the alleged scheme for
avoiding the payment of ADs by means of exporting Vietnamese shrimp as
the product of Cambodia.
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\22\ The Department received substantive responses to its notice
of initiation of the sunset review from Vietnamese Shrimp Exporters
and domestic interested parties within the 30-day deadline specified
in 19 CFR 351.218(d)(3)(i). 19 CFR 351.218(e)(1)(ii)(A) provides
that the Secretary normally will conclude that respondent interested
parties have provided an adequate response to a notice of initiation
where the Department receives complete substantive responses from
respondent interested parties accounting on average for more than 50
percent, by volume, or value, if appropriate, of the total exports
of the subject merchandise to the United States over the five
calendar years preceding the year of publication of the notice of
initiation of the sunset review. On March 2, 2010, the Department
determined that the Vietnamese Shrimp Exporters submitted an
adequate substantive response to the Department's notice of
initiation. See Memorandum to James C. Doyle: Adequacy Determination
in Antidumping Duty Sunset Review of Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam, dated March 2, 2010.
\23\ See Sunset Final Results, and accompanying Issues and
Decision Memorandum at Issue 1.
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The Court of Appeals for the Federal Circuit recognized the
Department's authority to ensure that our proceedings are not
undermined by fraud, holding that the Department has the ``inherent
authority'' to reopen and reconsider a previously conducted proceeding,
when new evidence of fraud calls into question the integrity of the
determination.\24\ Here, the information stemming from a separate
criminal proceeding raised serious questions regarding the integrity,
accuracy and completeness of the administrative record considered in
the sunset review of the AD order on shrimp from Vietnam. Accordingly,
we determine that the reopening of the first sunset review to consider
this information and its impact on the sunset review is warranted under
these circumstances.
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\24\ See Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d
1352, 1360-62 (Fed. Cir. 2008).
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Comments
Concurrently with the publication of this notice, the Department
intends to place the new information discussed above on the record of
this sunset review. The Department invites all interested parties to
comment on the new information. Interested parties may submit comments
no later than 30 days from the publication of this notice. Comments
must be limited to the new information and how the Department should
consider it in its analysis.
Filing Information
All submissions in this reopened segment must be filed in
accordance with the Department's regulations regarding format,
translation, and service of documents. These rules, including
electronic filing requirements
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via Enforcement and Compliance's AD and Countervailing Duty (``CVD'')
Centralized Electronic Service System (``IA ACCESS''), can be found at
19 CFR 351.303.\25\
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\25\ See also Antidumping and Countervailing Duty Proceedings:
Electronic Filing Procedures; Administrative Protective Order
Procedures, 76 FR 39263 (July 6, 2011).
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This notice serves as a reminder that any party submitting factual
information in an AD/CVD proceeding must certify to the accuracy and
completeness of that information.\26\
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\26\ See section 782(b) of the Act.
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Pursuant to 19 CFR 351.103(d), the Department will maintain and
make available a public service list for this sunset review. Because
changes to the representation of interested parties may have changed
since this sunset review was initially conducted, to facilitate the
timely update of the service list, it is requested that those seeking
recognition as interested parties to this reopened segment file an
entry of appearance within 10 days of the publication of this notice.
We urge interested parties to apply for access to proprietary
information under APO immediately following publication of this notice
in the Federal Register. The Department's regulations on submission of
proprietary information and eligibility to receive access to business
proprietary information under APO can be found at 19 CFR 351.304-306.
This five-year (``sunset'') review and notice are in accordance
with sections 751(c), 752(c), and 777(i) of the Act.
Dated: March 14, 2014.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2014-06081 Filed 3-18-14; 8:45 am]
BILLING CODE 3510-DS-P