[Federal Register Volume 74, Number 127 (Monday, July 6, 2009)]
[Notices]
[Pages 31911-31912]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15831]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-549-822]


Certain Frozen and Canned Warmwater Shrimp from Thailand: Notice 
of Court Decision Not in Harmony With Final Determination of Sales at 
Less Than Fair Value

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: On June 24, 2009, the United States Court of International 
Trade (CIT) sustained the Department of Commerce's (the Department's) 
second redetermination pursuant to the CIT's remand in Thai I-Mei 
Frozen Foods Co., Ltd. v. United States, Court No. 05-00197 (Jun. 24, 
2009) (Thai I-Mei III). See Final Results of Redetermination Pursuant 
to Court Remand, dated March 18, 2009 (found at http://ia.ita.doc.gov/remands). 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), the Department is notifying the 
public that the final judgment in this case is not in harmony with the 
Department's final determination in the less-than-fair-value (LTFV) 
investigation of certain frozen warmwater shrimp from Thailand. See 
Notice of Final Determination of Sales at Less Than Fair Value and 
Negative Final Determination of Critical Circumstances: Certain Frozen 
and

[[Page 31912]]

Canned Warmwater Shrimp From Thailand, 69 FR 76918 (Dec. 23, 2004), as 
amended by the Notice of Amended Final Determination of Sales at Less 
Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater 
Shrimp from Thailand, 70 FR 5145 (Feb. 1, 2005) (Final Determination).

EFFECTIVE DATE: July 6, 2009.

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

    On February 5, 2005, the Department published its amended final 
determination in the LTFV investigation of certain frozen warmwater 
shrimp from Thailand. See Final Determination. In the Final 
Determination, we based the constructed value (CV) profit for one 
respondent, Thai I-Mei Frozen Foods Co., Ltd. (Thai I-Mei), on the 
weighted-average profits earned by the other respondents in the 
investigation, in accordance with our practice.
    On August 26, 2008, the CIT held that the CV profit rate for Thai 
I-Mei was not determined according to a ``reasonable method'' as 
required by the Tariff Act of 1930, as amended (the Act), and remanded 
the issue to the Department to ``redetermine a constructed value profit 
rate for Thai I-Mei that is in accordance with law.''\1\ See Thai I-Mei 
II.
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    \1\ This was the second remand ruling by the CIT on this issue. 
Previously, the CIT required the Department to provide further 
explanation of its CV profit methodology. See Thai I-Mei Frozen 
Foods Co., Ltd. v. United States, 477 F. Supp. 2d 1332 (CIT 2007) 
(Thai I-Mei I). Although the Department complied with this order 
(see Final Results of Redetermination Pursuant to Court Remand, 
dated June 8, 2007, found at http://ia.ita.doc.gov/remands), the CIT 
rejected it in Thai I-Mei Frozen Foods Co., Ltd. v. United States, 
Court No. 05-00197 (Aug. 26, 2008) (Thai I-Mei II).
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    On March 18, 2009, the Department issued its final results of 
redetermination pursuant to Thai I-Mei II. In this remand 
redetermination, the Department recalculated the CV profit rate for 
Thai I-Mei using the weighted-average of the other respondents' profit 
on the third country sales of the foreign like product both within and 
outside the ordinary course of trade, because the CIT found this method 
reasonable. The Department's second redetermination changed the Final 
Determination dumping margin for Thai I-Mei from 5.29 percent to 1.88 
percent.

Timken Notice

    In its decision in Timken, 893 F.2d at 341, the CAFC 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 decision in Thai I-Mei III on 
June 24, 2009, constitutes a final decision of that court that is not 
in harmony with the Department's Final Determination. 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. 
In the event the CIT's ruling is not appealed or, if appealed, upheld 
by the CAFC, the Department will publish an amended final determination 
and exclude shrimp produced and exported by Thai I-Mei from the 
antidumping duty order on frozen warmwater shrimp from Thailand.
    This notice is issued and published in accordance with section 
516A(c)(1) of the Act.

    Dated: June 29, 2009.
John M. Andersen,
Acting Deputy Assistant Secretary for Antidumping and Countervailing 
Duty Operations.
[FR Doc. E9-15831 Filed 7-2-09; 8:45 am]
BILLING CODE 3510-DS-S