[Federal Register Volume 86, Number 78 (Monday, April 26, 2021)]
[Notices]
[Pages 22021-22022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-08640]


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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 the Results of 
Antidumping Duty Administrative Review; Notice of Amended Final Results

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: On April 14, 2021, the U.S. Court of International Trade (CIT) 
issued its final judgment in Sao Ta Foods Joint Stock Company et al. v. 
United States, Consol. Court No. 18-00205, sustaining the Department of 
Commerce (Commerce)'s second remand results pertaining to the 
administrative review of the antidumping duty (AD) order on certain 
frozen warmwater shrimp (shrimp) from the Socialist Republic of Vietnam 
(Vietnam) covering the period February 1, 2016, through January 31, 
2017. Commerce is notifying the public that the CIT's final judgment is 
not in harmony with Commerce's Final Results of the administrative 
review, and that Commerce is amending the Final Results with respect to 
the separate rate (SR) status for Frozen Seafoods Factory No. 32 and 
Seafoods and Foodstuff Factory.

DATES: Applicable April 24, 2021.

FOR FURTHER INFORMATION CONTACT: Irene Gorelik, AD/CVD Operations, 
Office VIII, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-6905.

SUPPLEMENTARY INFORMATION:

Background

    On September 14, 2018, Commerce published its Final Results in the 
2016-2017 AD administrative review of shrimp from Vietnam.\1\ In the 
Final Results, Commerce determined in relevant part that Frozen 
Seafoods Factory No. 32 and Seafoods and Foodstuff Factory were not 
``aka'' or trade names of Thuan Phuoc Seafoods and Trading Corporation 
(Thuan Phuoc) such that they were entitled to Thuan Phuoc's SR.\2\ As a 
result, Commerce treated these two factories as part of the Vietnam-
wide entity and assigned them the Vietnam-wide rate of 25.76 
percent.\3\
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    \1\ See Certain Frozen Warmwater Shrimp from the Socialist 
Republic of Vietnam: Final Results of Antidumping Duty 
Administrative Review, 2016- 2017, 83 FR 46704 (September 14, 2018) 
(Final Results), and accompanying Issues and Decision Memorandum 
(IDM).
    \2\ See Final Results IDM at Comment 3A.
    \3\ Id.
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    Several interested parties, including Thuan Phuoc, appealed 
Commerce's Final Results. On January 16, 2020, the CIT found that 
Commerce's denial of SR status for Frozen Seafoods Factory No. 32 and 
Seafoods and Foodstuff Factory was unsupported by substantial evidence 
because Commerce failed to consider certain information contained in 
Thuan Phuoc's separate-rate certification (SRC) \4\ suggesting that the 
factories were divisions of Thuan Phuoc, rather than distinct 
entities.\5\ The CIT, thus, ordered Commerce to reconsider or further 
explain its determination with respect Frozen Seafoods Factory No. 32 
and Seafoods and Foodstuff Factory.
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    \4\ See Thuan Phuoc Seafoods and Trading Corporation Submission, 
``Separate Rate Certification,'' dated May 15, 2017.
    \5\ See Sao Ta Foods Joint Stock Co. v. United States, 425 F. 
Supp. 3d 1314, 1318 (CIT 2020). While interested parties challenged 
several aspects of Commerce's Final Results, the Court sustained the 
Final Results in all other respects. Id. at 1318.
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    In its first remand redetermination, issued on April 30, 2020, 
Commerce provided further explanation of its determination, in 
consideration of Thuan Phuoc's SRC, and continued to find that Frozen 
Seafoods Factory No. 32 and Seafoods and Foodstuff Factory were 
separate factories that produced and exported subject merchandise to 
the United States under their own licenses, rather than ``aka'' or 
trade names of Thuan Phuoc.\6\ The CIT remanded for a second time, 
finding that Commerce failed to explain how it distinguishes when an 
entity is a separate exporter as opposed to a trade name of another 
company, failed to address record evidence detracting from its 
position, and acted in an arbitrary and capricious manner by not giving 
parties reasonable notice of a change in practice regarding

[[Page 22022]]

trade names.\7\ The CIT directed Commerce on remand to provide further 
explanation of its continued denial of SR status to Frozen Seafoods 
Factory No. 32 and Seafoods and Foodstuff Factory or reconsider its 
determination.\8\
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    \6\ See Final Results of Redetermination Pursuant to Court 
Remand, dated April 30, 2020 (Remand I), available at https://enforcement.trade.gov/remands/20-7.pdf.
    \7\ See Sao Ta Foods Joint Stock Company et.al. v. United 
States, 475 F. Supp. 3d 1283, 1289-93 (CIT 2020).
    \8\ Id. at 1293.
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    In its second remand redetermination, issued on December 4, 2020, 
Commerce complied with the CIT's order and, under respectful protest, 
reversed the Final Results determination wherein Commerce denied SR 
status to Frozen Seafoods Factory No. 32 and to Seafoods and Foodstuff 
Factory.\9\ As a result, Commerce assigned these factories Thuan 
Phuoc's SR of 4.58 percent as determined in the Final Results. The CIT 
sustained Commerce's second remand redetermination on April 14, 
2021.\10\
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    \9\ See Final Results of Redetermination Pursuant to Court 
Remand, dated December 4, 2020 (Remand II), available at https://enforcement.trade.gov/remands/20-135.pdf.
    \10\ See Sao Ta Foods Joint Stock Company et.al. v. United 
States, Consol. Court No, 18-00205, Slip. Op. 21-42 (CIT 2021).
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Timken Notice

    In its decision in Timken,\11\ as clarified by Diamond 
Sawblades,\12\ the Court of Appeals for the Federal Circuit held that, 
pursuant to section 516A(c) and (e) of the Tariff Act of 1930, as 
amended (the Act), Commerce must publish a notice of court decision 
that is not ``in harmony'' with a Commerce determination and must 
suspend liquidation of entries pending a ``conclusive'' court decision. 
The CIT's April 14, 2021 judgment constitutes a final decision of the 
CIT that is not in harmony with Commerce's Final Results. Thus, this 
notice is published in fulfillment of the publication requirements of 
Timken.
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    \11\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990) (Timken).
    \12\ See Diamond Sawblades Manufacturers Coalition v. United 
States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Results

    Because there is now a final court judgment, Commerce is amending 
its Final Results with respect to the SR status for Frozen Seafoods 
Factory No. 32 and Seafoods and Foodstuff Factory. Specifically, 
Commerce is granting SR status to Frozen Seafoods Factory No. 32 and 
Seafoods and Foodstuff Factory, as trade names of Thuan Phuoc, for 
purposes of the 2016-2017 administrative review. Consequently, we are 
revising the weighted-average dumping margin assigned to these two 
exporters, for the period February 1, 2016, through January 31, 2017, 
from the Vietnam-wide rate of 25.76 percent to 4.58 percent, which was 
the rate assigned to non-individually examined companies that qualified 
for a SR in the Final Results.\13\
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    \13\ See Final Results, 83 FR at 46705.
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Cash Deposit Requirements

    Because Frozen Seafoods Factory No. 32 and Seafoods and Foodstuff 
Factory have a superseding cash deposit rate, i.e., there has been a 
final results published in a subsequent administrative review, we will 
not issue revised cash deposit instructions to U.S. Customs and Border 
Protection (CBP). This notice will not affect the current cash deposit 
rate.

Liquidation of Suspended Entries

    At this time, Commerce remains enjoined by CIT order from 
liquidating entries that were exported by Thuan Phuoc, aka Frozen 
Seafoods Factory No. 32, aka Seafoods and Foodstuff Factory, and were 
entered, or withdrawn from warehouse, for consumption during the period 
February 1, 2016, through January 31, 2017. These entries will remain 
enjoined pursuant to the terms of the injunction during the pendency of 
any appeals process.
    In the event the CIT's ruling is not appealed, or, if appealed, 
upheld by a final and conclusive court decision, Commerce intends to 
instruct CBP to assess antidumping duties on unliquidated entries of 
subject merchandise exported by Frozen Seafoods Factory No. 32 and 
Seafoods and Foodstuff Factory at the above-noted 4.58 percent rate, in 
accordance with 19 CFR 351.212.\14\
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    \14\ Two injunctions have been filed in connection with this 
litigation, covering exporters other than Frozen Seafoods Factory 
No. 32 and Seafoods and Foodstuff Factory. Commerce also intends to 
issue appropriate instructions to CBP upon dissolution of these 
injunctions.
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Notification to Interested Parties

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

    Dated: April 20, 2021.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations.
[FR Doc. 2021-08640 Filed 4-23-21; 8:45 am]
BILLING CODE 3510-DS-P