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 Pursuant to Court Decision

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On April 14, 2011, 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, Consol. Court No. 08-00301 (June 17, 2010).

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, F.3d, Court No. 2010-1024, 1090 (Fed. Cir. December 9, 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 determination 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, 2006 through January 31, 2007, with respect to the separate rate margins assigned to Amanda Foods (Vietnam) Ltd.; C.P. Vietnam Livestock Co. Ltd., Cadovimex Seafood Import-Export and Processing Joint Stock Company; Cafatex Fishery Joint Stock Corporation; Can Tho Agricultural and Animal Product Import Export Company; Coastal Fishery Development; Cuulong Seaproducts Company; Danang Seaproducts Import Export Corporation; Frozen Seafoods Factory No. 32, Investment Commerce Fisheries Corporation; Kim Anh Co., Ltd.; Minh Hai Export Frozen Seafood Processing Joint Stock Company; Minh Hai Export Frozen Seafood Processing Joint-Stock Company; Minh Hai Joint-Stock Seafoods Processing Company; Minh Hai Sea Products Import Export Company (Seaprimex Co); Ngoc Sinh Private Enterprise; Nha Trang Fisheries Joint Stock Company; Nha Trang Seaproduct Company; Phu Cuong Seafood Processing and Import-Export Co., Ltd.; Phuong Nam Co. Ltd., Sao Ta Foods Joint Stock Company; Soc Trang Aquatic Products and General Import Export Company; UTXI Aquatic Products Processing Company; and Viet Foods Co., Ltd, (collectively, the “23 Plaintiffs”). See Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 73 FR 52273 (September 9, 2008) and accompanying Issues and Decision Memorandum (“Final Results”).

DATES:

Effective Date: (April 24, 2011)

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 second administrative review of the antidumping duty order on shrimp from Vietnam, the Department reviewed 63 companies. See Final Results, 73 FR at 52275. Of those 63 companies, two companies were selected for individual examination, 26 cooperative, non-individually examined respondents demonstrated eligibility for, and received, a separate rate, and 35 companies were considered part of the Vietnam-Wide entity because they did not demonstrate eligibility for a separate rate. The Department explained in the Final Results 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 Act. The Department's 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. Because the Department calculated zero and de minimis rates, respectively, for the two mandatory respondents, the Department assigned to the non-individually examined respondents in this administrative review with no history of a calculated margin a separate rate of 4.57 percent, as a reasonable method reflective of the range of commercial behavior demonstrated by exporters of the subject merchandise during a very recent period in time. See Final Results, 73 FR at 52275 and Comment 6. For those respondents that were not selected for individual examination and received a calculated rate in a more recent or contemporaneous prior segment, we assigned that calculated rate as the company's separate rate in this review. See id.

In Amanda Foods (Vietnam) Ltd., et. al v. United States Court No. 08-00301 Slip Op. 09-106 (CIT September 29, 2009) (“Amanda I”), the Court remanded the separate rate assignment methodology to the Department to either assign to Plaintiffs the weighted-average rate of the mandatory respondents, or else provide justification, based on substantial evidence on the record, for using another rate. See Amanda I at 30. Consequently, in the Department's remand redetermination for Amanda I, we further explained the reasonableness of the methodology applied in the Final Results.

In Amanda Foods (Vietnam) Ltd., et al., v. United States, Consol. Court No. 08-00301 (June 17, 2010) (“Amanda II”), the Court disagreed with the Department's further justification for applying its separate rate methodology, and remanded the issue back to the Department a second time. On remand, the Court ordered the Department to employ a reasonable method {to assign a separate rate}, which may “ `include{e} 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 POR which are reasonable considering the evidence on the record as a whole; to do so, Commerce may reopen the evidentiary record if need be.” See Amanda II remand opinion and order at 26.

In our Amanda II remand redetermination, under respectful protest, the Department determined that, in this instance, it was necessary to reopen the evidentiary record to gather additional information, specific to each of the 23 Plaintiffs, in order to comply with the Court's order. As detailed within footnote 22 of Amanda II, we reopened the record to gather the quantity and value of Plaintiffs' sales to the United States during the period of review (“POR”) on a count-size specific basis to analyze the data to determine whether a reasonable separate rate assignment methodology is supported by the supplemented evidentiary record. See Amanda II at footnote 22. The 23 Plaintiffs provided the necessary data which the Department evaluated to determine whether there was evidence of dumping by the 23 Plaintiffs on the record. See Amanda II remand redetermination at 5.

After having conducted our analysis, the Department determined that the record, with the additional count-size specific quantity and value data, did not show evidence of dumping by the 23 Plaintiffs during this POR. Id., at 5-6. Thus, because the Department has not found any evidence of dumping by Plaintiffs during this POR based on the information currently on the record, we determined to assign, under protest, a separate rate to these 23 Plaintiffs equal to the simple average of the dumping margins calculated for the individually-examined companies. Id., at 6-7.

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 April 14, 2011 judgment sustaining the Department's remand redetermination constitutes a final decision of that court that is not in harmony with the Department's Final Results. 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 respondents were reviewed.

Amended Final Results

Because there is now a final court decision with respect to the 23 Plaintiffs named above, revised dumping margins are as follows:

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 23 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.