[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.
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Weighted- average margin
Manufacturer/exporter (percent) (de minimis)
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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
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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 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