[Federal Register Volume 76, Number 93 (Friday, May 13, 2011)]
[Notices]
[Pages 27991-27993]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11822]
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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 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\
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\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).
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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.
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\2\ The 4.57 percent margin is the rate calculated for
cooperative separate rate respondents in the underlying
investigation.
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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.
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\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'').
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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:
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\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.
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Simple average
separate rate
Exporter name\4\ margin (de
minimis)
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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
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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