Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam: Notice of Court Decision Not in Harmony With Final Results of Administrative Review

AGENCY:

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

SUMMARY:

On February 19, 2019, the United States Court of International Trade (CIT or Court) issued its final judgment, sustaining the Department of Commerce's (Commerce's) final remand results pertaining to the tenth administrative review of the antidumping duty order on certain frozen warmwater shrimp from the Socialist Republic of Vietnam (Vietnam) covering the period of review (POR) of February 1, 2014, through January 31, 2015. Commerce is notifying the public that the final judgment in this case is not in harmony with the final results of the tenth administrative review, and that Commerce is amending the final results with respect to the surrogate value used to value frozen shrimp in the administrative review, which results in amended antidumping duties.

DATES:

Applicable March 1, 2019.

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 April 3, 2015, Commerce initiated an administrative review of 195 producers and exporters of certain frozen warmwater shrimp from Vietnam for the period February 1, 2014, through January 31, 2015. Commerce individually examined Soc Trang Seafood Joint Stock Company, also known as Stapimex. We issued the Final Results on September 12, 2016.

Because Vietnam continues to be a non-market economy (NME) country, pursuant to section 773(c)(1) of the Act, we based normal value on the NME producer's factors of production (FOPs), valued in a surrogate market economy country considered to be appropriate. Upon evaluating the surrogate country selection criteria, including the availability of surrogate value data on the record, we selected Bangladesh over other countries primarily due to data availability considerations. No interested parties challenged Commerce's surrogate country selection.

In the Final Results, among other issues, we addressed arguments regarding the frozen shrimp surrogate value and our denial of byproduct offsets for packing materials claimed as byproducts. We made no changes in the Final Results regarding these two issues. With respect to the frozen shrimp surrogate value, we explained that “{b}ecause our strong preference is to value all inputs from a single surrogate country, we valued frozen shrimp using the Bangladeshi UN Comtrade data.” We further explained that “{a}lthough the Indian GTA {data} are contemporaneous, whereas Bangladeshi UN Comtrade data are not, this consideration does not outweigh our preference to remain within the primary surrogate country.”

After the conclusion of the administrative review, several interested parties challenged various determinations made in the Final Results. The Court affirmed all the challenged determinations, but remanded two issues for further explanation or reconsideration. Specifically, in the Remand Opinion and Order, the Court ordered Commerce to reconsider or further explain: (1) its reliance on Bangladeshi UN Comtrade data to value purchased frozen shrimp using Harmonized Tariff Schedule (HTS) 0306.13 from among the other frozen shrimp surrogate value data on the record, namely the India Global Trade Atlas (GTA) surrogate value data under HTS 0306.17; and (2) its denial of a byproduct offset for the claimed byproduct related to “packaging.”

In the Remand Redetermination, and consistent with the Remand Opinion and Order, Commerce reconsidered the surrogate value used to value frozen shrimp and recalculated the sole mandatory respondent's dumping margin accordingly. Further, as directed by the Court, we explained our denial of the mandatory respondent's request for an offset of packing materials claimed as byproducts to the cost of manufacturing in determining normal value. The Court sustained our Remand Redetermination on both issues.

In the Final Results, we calculated a 4.78 percent weighted-average margin for the sole mandatory respondent Stapimex. Based on our remand recalculations, the final margin for Stapimex in this administrative review changes from 4.78 percent to 0.71 percent.

Timken Notice

In its decision in Timken, as clarified by Diamond Sawblades, the Court of Appeals for the Federal Circuit held that, pursuant to section 516A(e) of the Act, Commerce must publish a notice of a 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 February 19, 2019, Final Judgment sustaining Commerce's Remand Redetermination with respect to using the India GTA surrogate value data under HTS 0306.17 to value frozen shrimp constitutes a final decision of that court that is not in harmony with the Final Results.

This notice is published in fulfillment of the publication requirement of Timken. Accordingly, Commerce will continue the suspension of liquidation of the subject merchandise at issue in the Remand Redetermination pending expiration of the period of appeal or, if appealed, a final and conclusive court decision.

Amended Final Results

Because there is now a final court decision with respect to this case, Commerce is amending the Final Results. Based on the Remand Redetermination, as affirmed by the Court on February 19, 2019, the revised weighted-average dumping margin for Stapimex, for the period February 1, 2014, through January 31, 2015, is 0.71 percent. Further, as the rate assigned to companies that qualified for a separate rate in this review was based on Stapimex's calculated rate, we will accordingly apply Stapimex's revised margin as the rate applicable to the 27 separate-rate recipients which are parties to this litigation.

In the event that the CIT's ruling is not appealed or, if appealed, is upheld by a final and conclusive court decision, Commerce will instruct U.S. Customs and Border Protection to assess antidumping duties on unliquidated entries of subject merchandise based on: (1) the non-public importer-specific assessment rates recalculated in the Remand Redetermination for Stapimex and (2) the above-noted 0.71 percent revised rate for the non-individually examined respondents that received a separate rate in the Final Results and are subject to this litigation.

Cash Deposit Requirements

Mandatory Respondent

Because there have been no subsequent administrative reviews completed for mandatory respondent, Stapimex, the recalculated cash deposit rate of 0.71 percent will be the rate established for Stapimex in these amended final results.

Separate-Rate Companies

With respect to the 27 non-individually examined companies that qualified for a separate rate in the tenth administrative review and are subject to this litigation, there have been subsequent administrative reviews completed for the exporters listed below; thus, the cash deposit rate for these exporters will remain the rate established in the most recently-completed administrative review in which they received a cash deposit rate:

With respect to the non-individually examined companies listed below that qualified for a separate rate in the tenth administrative review and are subject to this litigation, there have been either: (1) No subsequent administrative reviews completed for these exporters because they were rescinded from review, or (2) these exporters certified they had no shipments in subsequent reviews; thus, the cash deposit rate of 0.71 percent, as recalculated in the Remand Redetermination, applies to these companies:

Notification to Interested Parties

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