[Federal Register Volume 77, Number 113 (Tuesday, June 12, 2012)]
[Notices]
[Pages 34935-34937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14438]


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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

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

SUMMARY: On May 30, 2012, 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, 807 F. 
Supp. 2d 1332 (CIT 2011) (``Amanda 2011'').\1\ 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, 626 F.3d 1374 (Fed. Cir. 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 
results 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, 2007 through January 31, 2008, with respect to 
the margins assigned to the following litigants: Amanda Foods (Vietnam) 
Ltd.; Bac Lieu Fisheries Joint Stock Company; Cadovimex Seafood Import-
Export and Processing Joint Stock Company; Cafatex Fishery Joint Stock 
Corporation; Cam Ranh Seafoods Processing Enterprise Company; Cuulong 
Seaproducts Company; Danang Seaproducts Import Export Corporation; Minh 
Hai Export Frozen Seafood Processing Joint Stock Company (``Minh Hai 
Jostoco''); Minh Hai Joint-Stock Seafoods Processing Company 
(``Seaprodex Minh Hai''); Minh Hai Sea Products Import Export Company 
(``Seaprimex Co''); Ngoc Sinh Private Enterprise; Nha Trang Seaproduct 
Company; Phu Cuong Seafood Processing and Import-Export Co., Ltd.; Sao 
Ta Foods Joint Stock Company; Soc Trang Aquatic Products and General 
Import Export Company; and UTXI Aquatic Products Processing Company.\2, 
3\
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    \1\ See Final Results Of Redetermination Pursuant To Court 
Remand, Court No. 09-00431, dated March 29, 2012, available at: 
http://ia.ita.doc.gov/remands/index.html (``Amanda 2011 Final 
Remand''); see also Amanda Foods (Vietnam) Ltd., et al. v. United 
States, Slip Op. 12-68 (CIT May 30, 2012) (judgment).
    \2\ See Certain Frozen Warmwater Shrimp From the Socialist 
Republic of Vietnam: Final Results and Final Partial Rescission of 
Antidumping Duty Administrative Review, 74 FR 47191 (September 15, 
2009) (``Vietnam Shrimp AR3 Final'').
    \3\ On March 8, 2012, the Court signed a stipulation of 
dismissal with respect to Coastal Fishery Development a.k.a. Coastal 
Fisheries Development Corporation; Thuan Phuoc Seafoods and Trading 
Corporation a.k.a. frozen seafoods factory 32 a.k.a. seafoods and 
foodstuff factory a.k.a. Frozen Seafoods Factory No. 32 a.k.a. 
Frozen Seafoods Fty; Investment Commerce Fisheries Corporation; Nha 
Trang Fisheries Joint Stock Company; Viet Foods Co., Ltd.; and Vinh 
Loi Import Export Co. Ltd. As a result, these companies are no 
longer parties in this litigation, are not subject to this remand, 
and we have not changed the rate originally assigned to them in 
Vietnam Shrimp AR3 Final.

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DATES: Effective June 11, 2012.

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 third administrative review of the antidumping duty order on 
frozen warmwater shrimp from the Socialist Republic of Vietnam, the 
Department

[[Page 34936]]

reviewed 110 companies.\4\ Of those 110 companies, four companies 
certified they had no shipments, three companies were selected for 
individual examination, 25 cooperative, non-individually examined 
respondents demonstrated eligibility for, and received, a separate 
rate, and 78 companies were considered part of the Vietnam-Wide entity 
because they did not demonstrate eligibility for a separate rate.
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    \4\ See Certain Frozen Warmwater Shrimp from the Socialist 
Republic of Vietnam: Preliminary Results; Preliminary Partial 
Rescission and Request for Revocation, In Part, of the Third 
Administrative Review, 74 FR 10009 (March 9, 2009), unchanged in VN 
Shrimp AR3 Final, 74 FR at 47196-7.
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    The Department explained in the Vietnam Shrimp AR3 Final 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 
Tariff Act of 1930, as amended (``Act'').\5\ The Department further 
explained that its 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.\6\ However, in this case, with respect to the cooperative 
non-individually examined respondents, the Department determined that 
the circumstances regarding the separate rate calculation methodology 
were comparable to those of the preceding administrative review, in 
which the Department also calculated de minimis margins for each 
mandatory respondent. As a result, consistent with the methodology 
applied in the preceding administrative review, the Department assigned 
a separate rate of 4.57 percent, which is the margin calculated for 
cooperative separate rate respondents in the underlying investigation, 
to those non-individually examined respondents in this administrative 
review that did not have their own prior or concurrently calculated 
margin.\7\ Additionally, for those non-individually examined 
respondents for whom we calculated a rate in a more recent or 
contemporaneous segment, we assigned that calculated rate as the 
company's separate rate in this review.\8\ Specifically, for Viet Hai 
Seafoods Company Ltd. and Grobest & I-Mei Industrial (Vietnam) Co., 
Ltd., we assigned the rates most recently calculated for both companies 
(zero) as their separate rate in the third administrative review 
because these rates were more recent than the separate rate calculated 
in the underlying investigation and were based on the companies' own 
data. Additionally, for Minh Hai Joint-Stock Seafoods Processing 
Company, we assigned as a separate rate the most recent rate of 4.30 
percent, which we calculated for it in the underlying investigation 
based on the company's own data.\9\
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    \5\ See VN Shrimp AR3 Final, 74 FR at 47195.
    \6\ See id.
    \7\ See id.
    \8\ See id.
    \9\ See id.
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    This same separate rate assignment methodology was applied in the 
final results of the second administrative review of frozen warmwater 
shrimp from the Socialist Republic of Vietnam. In the litigation 
involving that proceeding, in Amanda Foods (Vietnam) Ltd., et al. v. 
United States, 647 F. Supp. 2d 1368 (CIT 2009) (``Amanda I''), the CIT 
remanded the separate rate assignment methodology to either assign to 
the plaintiffs the weighted-average rate of the mandatory respondents, 
or else provide justification, based on substantial evidence on the 
record, for using another rate. Consequently, in the Department's 
remand redetermination for Amanda I, we stated that ``the Department 
employed the correct analytical framework in its draft remand 
redetermination, in determining a reasonable method with which to 
assign a rate to non-individually examined respondents'' in the second 
administrative review.\10\
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    \10\ See Final Results of Redetermination Pursuant To Court 
Remand, dated March 3, 2010, at 21.
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    However, in Amanda Foods (Vietnam) Ltd., et al. v. United States, 
714 F. Supp. 2d 1282 (CIT 2010) (``Amanda II''), the CIT disagreed with 
the Department's justification for applying the selected separate rate 
assignment methodology in the Amanda I remand redetermination and 
remanded the issue back to the Department, ordering that the Department 
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 {period of review (``POR''){time}  which 
are reasonable considering the evidence on the record as a whole; to do 
so, Commerce may reopen the evidentiary record if need be.'' \11\
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    \11\ See Amanda II, 714 F. Supp. 2d at 1296.
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    In the Department's remand redetermination for Amanda II, the 
Department reopened the record to gather the quantity and value 
(``Q&V'') of the plaintiffs' sales to the United States during the POR 
on a count-size specific basis to conduct an abbreviated comparative 
exercise using this Q&V data and the mandatory respondents' weighted-
average normal values to determine whether the record contained 
evidence of dumping. Based on our analysis, we determined that there 
was no evidence of dumping on the record, and assigned, under protest, 
a separate rate to the 23 plaintiffs equal to the simple average of the 
dumping margins calculated for the two individually-examined 
companies.\12\ The CIT affirmed the Amanda II Remand Redetermination in 
Amanda Foods (Vietnam) Ltd., et al. v. United States, 774 F. Supp. 2d 
1286 (CIT 2011) (``Amanda III'').
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    \12\ See Amanda II Remand Redetermination at 6.
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    As noted above, in light of Amanda III, the Department requested a 
voluntary remand with respect to the separate rate calculation 
methodology applied in Vietnam Shrimp AR3 Final.\13\ Consequently, 
based on the exercise similarly conducted in Amanda II Remand 
Redetermination and affirmed in Amanda III, in the Amanda 2011 Final 
Remand, we analyzed the data collected from the 16 remaining plaintiffs 
and determined that the record does not contain substantial evidence to 
support the continued assignment of the separate rate applied in 
Vietnam Shrimp AR3 Final to these 16 plaintiffs.
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    \13\ See Amanda 2011, 807 F. Supp. 2d at 1338.
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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 May 30, 2012, judgment sustaining the Amanda 2011 Final Remand 
constitutes a final decision of that court that is not in harmony with 
the Vietnam Shrimp AR3 Final. 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

[[Page 34937]]

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 16 
Plaintiffs, revised dumping margins are as follows\14\:
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    \14\ All other rates determined in Vietnam Shrimp AR3 Final 
remain unchanged.

------------------------------------------------------------------------
                                                Weighted- average margin
             Manufacturer/exporter               (percent) (de minimis)
------------------------------------------------------------------------
Amanda Foods (Vietnam) Ltd....................  0.26
Bac Lieu Fisheries Joint Stock Company........  0.26
Cadovimex-Vietnam, aka Cadovimex Seafood        0.26
 Import-Export and Processing Joint Stock
 Company (``Cadovimex-Vietnam'').
Cafatex Fishery Joint Stock Corporation         0.26
 (``Cafatex 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.
Cam Ranh Seafoods Processing Enterprise         0.26
 Company (``Camranh Seafoods'') aka Camranh
 Seafoods.
Cuulong Seaproducts Company (``Cuu Long         0.26
 Seapro'') aka Cuu Long Seaproducts Limited
 (Cuulong Seapro) aka Cuulong Seapro, aka
 Cuulong Seaproducts Company (``Cuulong
 Seapro'') (``Cuu Long Seapro'').
Danang Seaproducts Import Export Corporation    0.26
 (``Seaprodex Danang'') aka Tho Quang Seafood
 Processing & Export Company, aka Seaprodex
 Danang, aka Tho Quang Seafood Processing And
 Export Company, aka Tho Quang, aka Tho Quang
 Co.
Minh Hai Export Frozen Seafood Processing       0.26
 Joint 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., aka Minh Hai Export Frozen
 Seafood Processing Joint-Stock Company Minh
 Hai Jostoco.
Minh Hai Joint-Stock Seafoods Processing        0.26
 Company (``Seaprodex Minh Hai'') aka Sea Minh
 Hai, aka Minh Hai Joint-Stock Seafoods
 Processing Company.
Minh Hai Sea Products Import Export Company     0.26
 (Seaprimex Co) , aka Ca Mau Seafood Joint
 Stock Company (``SEAPRIMEXCO'') aka
 Seaprimexco Vietnam, aka Seaprimexco, aka Ca
 Mau Seafood Joint Stock Company (Seaprimexco).
Ngoc Sinh Private Enterprise, aka Ngoc Sinh     0.26
 Seafoods, aka Ngoc Sinh Seafoods Processing
 and Trading Enterprise.
Nha Trang Seaproduct Company (`Nha Trang        0.26
 Seafoods'').
Phu Cuong Seafood Processing and Import-Export  0.26
 Co., Ltd.
Sao Ta Foods Joint Stock Company (``Fimex       0.26
 VN''), aka Sao Ta Seafood Factory.
Soc Trang Seafood Joint Stock Company.........  0.26
UTXI Aquatic Products Processing Corporation..  0.26
------------------------------------------------------------------------

    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 16 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: June 7, 2012.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. 2012-14438 Filed 6-8-12; 4:15 pm]
BILLING CODE 3510-DS-P