[Federal Register Volume 77, Number 214 (Monday, November 5, 2012)]
[Notices]
[Pages 66434-66436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27042]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-893]


Certain Frozen Warmwater Shrimp From the People's Republic of 
China: Notice of Court Decision Not in Harmony With the Final 
Determination and Amended Final Determination of the Antidumping Duty 
Investigation

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

SUMMARY: On October 23, 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 Shantou Red Garden Foodstuff Co., Ltd., v. United States, 
Slip Op. 12-133 (CIT 2012).\1\
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    \1\ See Final Results Of Redetermination Pursuant To Court 
Remand, Court No. 05-00080, dated April 26, 2012, available at: 
http://ia.ita.doc.gov/remands/12-7.pdf (``Red Garden 2012 Final 
Remand''); see also Shantou Red Garden Foodstuff Co., Ltd. v. United 
States, Consol. Court No. 05-00080, Slip Op. 12-07 (CIT 2012) 
(``Remand Opinion and Order'').
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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, 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 PRC Final Determination \2\ and PRC Amended Final 
Determination & Order \3\ and is amending those final and amended final 
determinations with respect to Shantou Red Garden Foodstuff Co., Ltd. 
(``Red Garden'').
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    \2\ See Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Frozen and Canned Warmwater Shrimp From the People's 
Republic of China, 69 FR 70997 (December 8, 2004) (``PRC Final 
Determination'').
    \3\ See Notice of Amended Final Determination of Sales at Less 
Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater 
Shrimp from the People's Republic of China, 70 FR 5149 (February 1, 
2005) (``PRC Amended Final Determination & Order'')

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DATES: Effective Date: November 2, 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:

[[Page 66435]]

Background

    On January 13, 2012, the CIT remanded to the Department five 
determinations made with respect to Red Garden in the PRC Final 
Determination and PRC Amended Final Determination & Order, two of which 
the Department requested for voluntary remand.\4\ Specifically, the CIT 
held that: (1) The Department erred in applying partial adverse facts 
available (``AFA'') for certain missing factors of production (``FOP'') 
information from one of the unaffiliated producers for Red Garden; (2) 
the Department must reconsider its determination of the surrogate value 
(``SV'') for fresh, raw, head-on, shell-on shrimp; (3) the Department 
must recalculate Red Garden's margin using the correct production 
volume for a certain Red Garden supplier; (4) the Department must 
redetermine the SV for labor expenses consistent with the CAFC's 
decision in Dorbest;\5\ and (5) the Department unlawfully refused to 
allow Red Garden to correct a miscalculation for its growth stage 
multiplier submitted prior to verification.
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    \4\ See Remand Opinion and Order.
    \5\ See Dorbest Ltd. v. United States, 604 F.3d 1363, 1372-73 
(Fed. Cir. 2010) (``Dorbest'').
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    Pursuant to the CIT's remand instructions, the Department re-
examined record evidence and made the following changes. First, as 
facts otherwise available, we substituted Shantou Jinyuan District 
Mingfeng Quick-Frozen Factory (``Mingfeng'') and Shantou Longfeng 
Foodstuff Co., Ltd. (``Longfeng'') FOPs for Red Garden's sales of 
subject merchandise supplied by Meizhou, as it did in the original 
Preliminary Determination \6\ using the most updated FOP database 
submitted by Red Garden. Second, the Department relied on the publicly 
ranged financial statement data for Devi Sea Foods Ltd. (``Devi''), 
rather than data for Nekkanti, as the basis for calculating the raw 
shrimp SV. Third, the Department determined that the correct production 
quantity of Mingfeng should be used to weight-average the FOP database 
because the correct quantity was on the record before verification, the 
Department used the correct amount in the Preliminary Determination to 
weight average the FOP database, and the Department eventually verified 
the correct amount. However, implementation of Mingfeng's production 
quantity was unnecessary in the Red Garden 2012 Final Remand because 
the Department had actually used the correct amount, as used in the 
Preliminary Determination, to weight average the FOP databases.\7\ 
Accordingly, no changes were required in the margin program specific to 
this issue as it already contains the result mandated by the Court. 
Fourth, following Dorbest, the Department requested a voluntary remand 
of its wage rate calculations for Red Garden in the Final 
Determination. The CIT granted that request and remanded the Final 
Determination with instructions that the labor wage value be 
recalculated in accordance with law, supported with substantial 
evidence, and to comply with Dorbest. Consequently, the Department 
revised its valuation of Red Garden's reported labor input in the Final 
Determination in accordance with the CAFC's interpretation of section 
773(c) of the Act as expressed in Dorbest. The Department, therefore, 
calculated an industry-specific hourly wage rate for the single, 
primary surrogate country, India. Lastly, in the Final Determination, 
the Department had not used the correct growth stage multiplier without 
explanation. The Department requested a voluntary remand for the 
purposes of considering Red Garden's supplier's growth stage multiplier 
and upon further review, the Department re-determined to use the 
revised growth stage multiplier collected at verification as there is 
no indication that the Department rejected it as a minor correction at 
verification or that it intended to reject it in the Final 
Determination.
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    \6\ See Notice of Preliminary Determination of Sales at Less 
Than Fair Value, Partial Affirmative Preliminary Determination of 
Critical Circumstances and Postponement of Final Determination: 
Certain Frozen and Canned Warmwater Shrimp From the People's 
Republic of China, 69 FR 42654 (July 16, 2004) (``Preliminary 
Determination'').
    \7\ See Red Garden 2012 Final Remand at 12-13; see also 
Memorandum to the File; RE: Red Garden Final Determination Analysis 
Memorandum dated November 29, 2004, at SAS LOG lines 552-612.
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    On April 5, 2012, the Department released the draft redetermination 
of remand and invited interested parties to comment. The Department 
received no comments on the draft redetermination.\8\ On October 23, 
2012, the CIT affirmed all aspects of the Department's remand 
redetermination.\9\
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    \8\ See Shantou Red Garden Foodstuff Co., Ltd. v. United States, 
Slip Op. 12-07, Court No. 05-00080, Draft Results of Redetermination 
Pursuant to Court Remand (April 5, 2012) and Red Garden Analysis 
Memorandum for the Draft Results of Redetermination (``Draft Results 
Analysis Memo'').
    \9\ See Shantou Red Garden Foodstuff Co., Ltd., v. United 
States, Slip Op. 12-133 (CIT 2012).
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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 October 23, 2012, judgment sustaining the Red Garden 2012 Final 
Remand constitutes a final decision of that court that is not in 
harmony with the PRC Final Determination and PRC Amended Final 
Determination & Order. 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 respondent was reviewed.

Amended Final Determination

    Because there is now a final court decision with respect to Red 
Garden, the revised dumping margin is as follows:

------------------------------------------------------------------------
                                                     Weighted- average
         Manufacturer                Exporter         margin (percent)
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Shantou Red Garden Foodstuff    Shantou Red                        7.20
 Co., Ltd.                       Garden Foodstuff
                                 Co., Ltd..
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[[Page 66436]]

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

    Dated: October 31, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-27042 Filed 11-1-12; 4:15 pm]
BILLING CODE 3510-DS-P