Court Decisions Not in Harmony with Final Results of Administrative Reviews, etc.:

Federal Register Volume 76, Number 93 (Friday, May 13, 2011)

Notices

Pages 27991-27993

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

FR Doc No: 2011-11822

DEPARTMENT OF COMMERCE

International Trade Administration

A-552-802

Certain Frozen Warmwater Shrimp From the Socialist Republic of

Vietnam: Notice of Court Decision Not in Harmony With Final Results of

Administrative Review and Notice of Amended Final Results of

Administrative Review Pursuant to Court Decision

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

SUMMARY: On April 14, 2011, the United States Court of International

Trade (``CIT'') sustained the Department of Commerce's (``the

Department'') results of redetermination pursuant to the CIT's remand order in Amanda Foods (Vietnam) Ltd., et al., v. United States, Consol.

Court No. 08-00301 (June 17, 2010).\1\

\1\ See Final Results Of Redetermination Pursuant To Court

Remand, Court No. 08-00301, dated December 3, 2010, available at: http://ia.ita.doc.gov/remands/index.html (``Amanda II remand redetermination''); see also Amanda Foods (Vietnam) Ltd., et al., v.

United States, Court No. 08-00301 (CIT April 14, 2011) Slip Op. 11- 39 (judgment).

Consistent with the decision of the United States Court of Appeals for the Federal Circuit (``CAFC'') in Timken Co. v. United States, 893

F.2d 337 (Fed. Cir. 1990) (``Timken''), as clarified by Diamond

Sawblades Mfrs. Coalition v. United States, F.3d, Court No. 2010-1024, 1090 (Fed. Cir. December 9, 2010) (``Diamond Sawblades''), the

Department is notifying the public that the final judgment in this case is not in harmony with the Department's final determination and is amending the final results of the administrative review of the antidumping duty order on certain frozen warmwater shrimp from the

Socialist Republic of Vietnam covering the period of review (``POR'') of February 1, 2006 through January 31, 2007, with respect to the separate rate margins assigned to Amanda Foods (Vietnam) Ltd.; C.P.

Vietnam Livestock Co. Ltd., Cadovimex Seafood Import-Export and

Processing Joint Stock Company; Cafatex Fishery Joint Stock

Corporation; Can Tho Agricultural and Animal Product Import Export

Company; Coastal Fishery Development; Cuulong Seaproducts Company;

Danang Seaproducts Import Export Corporation; Frozen Seafoods Factory

No. 32, Investment Commerce Fisheries Corporation; Kim Anh Co., Ltd.;

Minh Hai Export Frozen Seafood Processing Joint Stock Company; Minh Hai

Export Frozen Seafood Processing Joint-Stock Company; Minh Hai Joint-

Stock Seafoods Processing Company; Minh Hai Sea Products Import Export

Company (Seaprimex Co); Ngoc Sinh Private Enterprise; Nha Trang

Fisheries Joint Stock Company; Nha Trang Seaproduct Company; Phu Cuong

Seafood Processing and Import-Export Co., Ltd.; Phuong Nam Co. Ltd.,

Sao Ta Foods Joint Stock Company; Soc Trang Aquatic Products and

General Import Export Company; UTXI Aquatic Products Processing

Company; and Viet Foods Co., Ltd, (collectively, the ``23

Plaintiffs''). See Certain Frozen Warmwater Shrimp From the Socialist

Republic of Vietnam: Final Results and Final Partial Rescission of

Antidumping Duty Administrative Review, 73 FR 52273 (September 9, 2008) and accompanying Issues and Decision Memorandum (``Final Results'').

DATES: Effective Date: (April 24, 2011)

FOR FURTHER INFORMATION CONTACT: Irene Gorelik, Office 9, Import

Administration, International Trade Administration, U.S. Department of

Commerce, 14th Street and Constitution Avenue, NW., Washington, DC, 20230; telephone: (202) 482-6905.

SUPPLEMENTARY INFORMATION:

Background

In the second administrative review of the antidumping duty order on shrimp from Vietnam, the Department reviewed

Page 27992

63 companies. See Final Results, 73 FR at 52275. Of those 63 companies, two companies were selected for individual examination, 26 cooperative, non-individually examined respondents demonstrated eligibility for, and received, a separate rate, and 35 companies were considered part of the

Vietnam-Wide entity because they did not demonstrate eligibility for a separate rate. The Department explained in the Final Results that the statute and the Department's regulations do not directly address the establishment of a rate to be applied to companies not selected for individual examination where the Department has limited its examination in an administrative review pursuant to section 777(A)(c)(2) of the

Act. The Department's practice in this regard, in cases involving limited selection based on exporters accounting for the largest volumes of trade, has been to weight-average the rates for the selected companies excluding zero and de minimis rates and rates based entirely on facts available. Because the Department calculated zero and de minimis rates, respectively, for the two mandatory respondents, the

Department assigned to the non-individually examined respondents in this administrative review with no history of a calculated margin a separate rate of 4.57 percent, \2\ as a reasonable method reflective of the range of commercial behavior demonstrated by exporters of the subject merchandise during a very recent period in time. See Final

Results, 73 FR at 52275 and Comment 6. For those respondents that were not selected for individual examination and received a calculated rate in a more recent or contemporaneous prior segment, we assigned that calculated rate as the company's separate rate in this review. See id.

\2\ The 4.57 percent margin is the rate calculated for cooperative separate rate respondents in the underlying investigation.

In Amanda Foods (Vietnam) Ltd., et. al v. United States Court No. 08-00301 Slip Op. 09-106 (CIT September 29, 2009) (``Amanda I''), the

Court remanded the separate rate assignment methodology to the

Department to either assign to Plaintiffs the weighted-average rate of the mandatory respondents, or else provide justification, based on substantial evidence on the record, for using another rate. See Amanda

I at 30. Consequently, in the Department's remand redetermination for

Amanda I, we further explained the reasonableness of the methodology applied in the Final Results.

In Amanda Foods (Vietnam) Ltd., et al., v. United States, Consol.

Court No. 08-00301 (June 17, 2010) (``Amanda II''), the Court disagreed with the Department's further justification for applying its separate rate methodology, and remanded the issue back to the Department a second time. On remand, the Court ordered the Department to employ a reasonable method {to assign a separate rate{time} , which may ``

`include{e{time} averaging the estimated weighted average dumping margins determined for the exporters and producers individually investigated,' 19 U.S.C. 1673d(c)(5)(B) and* * *assign to Plaintiffs dumping margins for the second POR which are reasonable considering the evidence on the record as a whole; to do so, Commerce may reopen the evidentiary record if need be.'' See Amanda II remand opinion and order at 26.

In our Amanda II remand redetermination, under respectful protest, the Department determined that, in this instance, it was necessary to reopen the evidentiary record to gather additional information, specific to each of the 23 Plaintiffs, in order to comply with the

Court's order. As detailed within footnote 22 of Amanda II, we reopened the record to gather the quantity and value of Plaintiffs' sales to the

United States during the period of review (``POR'') on a count-size specific basis to analyze the data to determine whether a reasonable separate rate assignment methodology is supported by the supplemented evidentiary record. See Amanda II at footnote 22. The 23 Plaintiffs provided the necessary data which the Department evaluated to determine whether there was evidence of dumping by the 23 Plaintiffs on the record. See Amanda II remand redetermination at 5.

After having conducted our analysis, the Department determined that the record, with the additional count-size specific quantity and value data, did not show evidence of dumping by the 23 Plaintiffs during this

POR. Id., at 5-6. Thus, because the Department has not found any evidence of dumping by Plaintiffs during this POR based on the information currently on the record, we determined to assign, under protest, a separate rate to these 23 Plaintiffs equal to the simple average of the dumping margins calculated for the individually-examined companies.\3\ Id., at 6-7.

\3\ Minh Phu Seafood Export Import Corporation (and affiliated

Minh Qui Seafood Co., Ltd. and Minh Phat Seafood Co., Ltd.), Minh

Phu Seafood Corporation; Minh Phu Seafood Corp., Minh Qui Seafood

Co., Ltd., Minh Qui Seafood, Minh Phat Seafood Co., Ltd., Minh Phat

Seafood, (collectively, ``Minh Phu'') and Camau Frozen Seafood

Processing Import Export Corporation (``Camimex'').

Timken Notice

In its decision in Timken, 893 F.2d at 341, as clarified by Diamond

Sawblades, the CAFC has held that, pursuant to section 516A(e) of the

Act, the Department must publish a notice of a court decision that is not ``in harmony'' with a Department determination and must suspend liquidation of entries pending a ``conclusive'' court decision. The

CIT's April 14, 2011 judgment sustaining the Department's remand redetermination constitutes a final decision of that court that is not in harmony with the Department's Final Results. This notice is published in fulfillment of the publication requirements of Timken.

Accordingly, the Department will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision.

The cash deposit rate will remain the company-specific rate established for the subsequent and most recent period during which the respondents were reviewed.

Amended Final Results

Because there is now a final court decision with respect to the 23

Plaintiffs named above, revised dumping margins are as follows:

\4\ The separate rate margins for the 23 Plaintiffs are inclusive of the companies' names and trade names as they appeared in Vietnam Shrimp AR2 Final.

Simple average separate rate

Exporter name\4\

margin (de minimis)

Amanda Foods (Vietnam) Ltd..........................

0.01

C.P. Vietnam Livestock Co. Ltd., aka................

0.01

C P Vietnam Livestock Co. Ltd., aka

C P Livestock

Page 27993

Cadovimex Seafood Import-Export and Processing Joint

0.01

Stock Company (``CADOVIMEX'') aka..................

Cai Doi Vam Seafood Import-Export Company

(Cadovimex)

Cafatex Fishery Joint Stock Corporation (``Cafatex

0.01

Corp.'') aka.......................................

Cantho Animal Fisheries Product Processing Export

Enterprise (Cafatex), aka

Cafatex, aka

Cafatex Vietnam, aka

Xi Nghiep Che Bien Thuy Suc San Xuat Khau Can Tho, aka

Cas, aka

Cas Branch, aka

Cafatex Saigon, aka

Cafatex Fishery Joint Stock Corporation, aka

Cafatex Corporation, aka

Taydo Seafood Enterprise

Can Tho Agricultural and Animal Product Import

0.01

Export Company (``CATACO'') aka....................

Can Tho Agricultural Products aka

CATACO

Coastal Fishery Development aka.....................

0.01

Coastal Fisheries Development Corporation (Cofidec) aka

Coastal Fisheries Development Corporation (Cofidec)

Cuulong Seaproducts Company (``Cuu Long Seapro'')

0.01 aka................................................

Cuu Long Seaproducts Limited (Cuulong Seapro)

Danang Seaproducts Import Export Corporation

0.01

(``Seaprodex Danang'') aka.........................

Tho Quang Seafood Processing & Export Company, aka

Seaprodex Danang, aka

Tho Quang Seafood Processing And Export Company, aka

Tho Quang

Frozen Seafoods Factory No. 32, aka.................

0.01

Frozen Seafoods Fty, aka

Thuan Phuoc, aka

Thuan Phuoc Seafoods and Trading Corporation, aka

Frozen Seafoods Factory 32, aka

Seafoods and Foodstuff Factory

Investment Commerce Fisheries Corporation

0.01

(``Incomfish'')....................................

Kim Anh Co., Ltd....................................

0.01

Minh Hai Export Frozen Seafood Processing Joint

0.01

Stock Company, aka.................................

Minh Hai Jostoco, aka

Minh Hai Export Frozen Seafood Processing Joint-

Stock Company (``Minh Hai Jostoco''), aka

Minh Hai Export Frozen Seafood Processing Joint-

Stock Company, aka

Minh Hai Joint Stock Seafood Processing Joint-Stock

Company, aka

Minh Hai Export Frozen Seafood Processing Joint-

Stock Co.

Minh Hai Joint-Stock Seafoods Processing Company

0.01

(``Seaprodex Minh Hai'')...........................

Minh Hai Sea Products Import Export Company

0.01

(Seaprimex Co) , aka...............................

Ca Mau Seafood Joint Stock Company (``SEAPRIMEXCO'')

Ngoc Sinh Private Enterprise, aka...................

0.01

Ngoc Sinh Seafoods

Nha Trang Fisheries Joint Stock Company (``Nha Trang

0.01

Fisco'')...........................................

Nha Trang Seaproduct Company (``Nha Trang

0.01

Seafoods'')........................................

Phu Cuong Seafood Processing and Import-Export Co.,

0.01

Ltd................................................

Phuong Nam Co. Ltd., aka............................

0.01

Phuong Nam Seafood Co. Ltd.

Sao Ta Foods Joint Stock Company (``Fimex VN''), aka

0.01

Sao Ta Seafood Factory

Soc Trang Aquatic Products and General Import Export

0.01

Company (``Stapimex'').............................

UTXI Aquatic Products Processing Company, aka.......

0.01

UT XI Aquatic Products Processing Company, aka

UT-XI Aquatic Products Processing Company, aka

UTXI, aka

UTXI Co. Ltd., aka

Khanh Loi Seafood Factory, aka

Hoang Phuong Seafood Factory

Viet Foods Co., Ltd. (``Viet Foods'')...............

0.01

In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will instruct U.S. Customs and

Border Protection to assess antidumping duties on entries of the subject merchandise during the POR from the 23 Plaintiffs based on the revised assessment rates calculated by the Department.

This notice is issued and published in accordance with sections 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.

Dated: May 9, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

FR Doc. 2011-11822 Filed 5-12-11; 8:45 am

BILLING CODE 3510-DS-P

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