[Federal Register Volume 80, Number 29 (Thursday, February 12, 2015)]
[Notices]
[Pages 7840-7842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-02973]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Certain Frozen Fish Fillets From the Socialist Republic of 
Vietnam: Notice of Court Decisions Not in Harmony With Final Results of 
Administrative and New Shipper Reviews and Notice of Amended Final 
Results of Antidumping Duty Administrative Review

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

SUMMARY: On December 18, 2014, the United States Court of International 
Trade (``the Court'') issued final judgments in Catfish Farmers of 
America et al. v. United States, Consol. Court No. 11-00109 and Catfish 
Farmers of America et al. v. United States, Court No. 11-00110, 
sustaining the Department of Commerce's (``the Department'') AR6 Remand 
final results which included an aligned new shipper review.\1\ On 
December 19, 2014, the Court issued final judgment in Catfish Farmers 
of America et al. v. United States, Court No. 11-00252, sustaining the 
Department's NSR7 Remand final results.\2\ In the AR6 Remand, the 
Department recalculated the weighted-average dumping margin for Vinh 
Hoan Corporation (``Vinh Hoan'') using revised surrogate values for by-
products (fish waste, broken meat, and fish skin) and made adjustments 
for the inventory changes in the surrogate financial statements.\3\ 
Because Vinh Hoan's margin is now above de minimis, it also becomes the 
margin for those companies not individually examined but receiving a 
separate rate.\4\ The margins for the voluntary respondent Vinh Quang 
Fisheries Corporation (``Vinh Quang'') and the new shipper Cuu Long 
Fish Joint Stock Company (``CL-Fish'') did not change and remain de 
minimis.
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    \1\ See Final Results Of Redetermination Pursuant To Court 
Remand, Consol. Court Nos. 11-00109 and 11-00110, Slip Ops. 13-63 
and 13-64 (CIT May 23, 2013), dated January 17, 2014, (``AR6 
Remand'') available at http://enforcement.trade.gov/remands/13-63&64.pdf.
    \2\ See Final Results Of Redetermination Pursuant To Court 
Remand, Consol. Court No. 11-00252, Slip Op. 13-91 (CIT July 22, 
2013), dated January 17, 2014, (``NSR7 Remand'') available at http://enforcement.trade.gov/remands/13-91.pdf.
    \3\ See AR6 Remand at 41-46. As we explain below, the 
Department's recalculation of these surrogate values now yields an 
above de minimis weighted-average dumping margin for Vinh Hoan. 
Thus, consistent with our practice, the Department has amended the 
final results with respect to Vinh Hoan.
    \4\ These companies include: 1) An Giang Fisheries Import and 
Export Joint Stock Company (aka Agifish or An Giang Fisheries Import 
and Export); 2) East Sea Seafoods Limited Liability Company 
(formerly known as East Sea Seafoods Joint Venture Co., Ltd.) (``ESS 
LLC''); and 3) Southern Fishery Industries Co., Ltd. (``South 
Vina'').
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    In the NSR 7 Remand, the Department recalculated the weighted-
average dumping margin for IDI Corporation (``IDI'') and Thien Ma 
Seafood Company (``THIMACO'') using revised surrogate values for by-
products (fish waste, broken meat and fish skin).\5\ However, the 
margins for IDI and THIMACO did not change and remain de minimis.
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    \5\ See NSR7 Remand at 39-41.
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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 these cases is not in harmony with the 
Department's final results of the antidumping duty administrative and 
new shipper reviews of the antidumping duty order on certain frozen 
fish fillets from the Socialist Republic of Vietnam (``Vietnam'') 
covering the period of review August 1, 2008, through July 31, 2009 
(``AR6 POR''), and August 1, 2009, through February 15, 2010 (``NSR7 
POR''). With respect to the AR6 POR, the Department is amending the 
final results with respect to the weighted-average dumping margins for 
Vinh Hoan, Agifish, ESS LLC and South

[[Page 7841]]

Vina.\6\ As the rates did not change for the new shipper reviews, the 
Department is not amending those final results.
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    \6\ See Certain Frozen Fish Fillets from the Socialist's 
Republic of Vietnam: Final Results of the Sixth Antidumping Duty 
Administrative Review and Sixth New Shipper Review, 76 FR 15941 
(March 22, 2011) (``AR6 Final Results'') and the accompanying Issues 
and Decision Memorandum.

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DATES: Effective Date: December 29, 2014.

FOR FURTHER INFORMATION CONTACT: Javier Barrientos, AD/CVD Operations 
Office V, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
2243.

SUPPLEMENTARY INFORMATION:

Background

    On March 22, 2011, the Department issued AR6 Final Results.\7\ Vinh 
Hoan and Petitioners \8\ timely filed complaints with the Court and 
challenged certain aspects of the AR6 Final Results. On May 23, 2013, 
the Court remanded the Department's AR6 Final Results and instructed 
the Department to reconsider each of the following issues: (1) 
Surrogate country selection; (2) the surrogate values for by-products 
(fish waste, broken meat and fish skin); (3) alleged subsidies in one 
of the surrogate financial statements; and (4) ministerial allegations 
and effects on margins.\9\
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    \7\ Id.
    \8\ Catfish Farmers of America and the following individual U.S. 
catfish processors: America's Catch, Consolidated Catfish Companies, 
LLC dba Country Select Catfish, Delta Pride Catfish, Inc., Harvest 
Select Catfish, Inc., Heartland Catfish Company, Pride of the Pond, 
and Simmons Farm Raised Catfish, Inc. (collectively, 
``Petitioners'').
    \9\ See Catfish Farmers of America et al. v. United States, 
Court No. 11-00109, Slip Op. 13-63 (CIT May 23, 2013).
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    On June 17, 2011, the Department issued NSR7 Final Results.\10\ IDI 
and THIMACO and Petitioners timely filed complaints with the Court and 
challenged certain aspects of the NSR7 Final Results. On July 22, 2013, 
the Court remanded the Department's NSR7 Final Results and instructed 
the Department to reconsider each of the following issues: (1) 
Surrogate country selection; and (2) the surrogate values for by-
products (fish waste, broken meat and fish skin).\11\
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    \10\ See Certain Frozen Fish Fillets from the Socialist Republic 
of Vietnam: Final Results of the Antidumping Duty New Shipper 
Reviews, 76 FR 35403 (June 17, 2011) (``NSR7 Final Results'').
    \11\ See Catfish Farmers of America et al. v. United States, 
Court No. 11-00252, Slip Op. 13-91 (CIT July 22, 2013).
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    On January 17, 2014, the Department filed the AR6 Remand and NSR7 
Remand with the Court. With regard to the AR6 Remand and NSR7 Remand 
issues stated above, first, the Department maintained the selection of 
Bangladesh as the primary country. Second, the Department selected 
different surrogate values for the fish waste, broken meat, and fish 
skin by-products. With regard to the AR6 Remand only, the Department 
continued to use the same financial statements to calculate the 
surrogate financial ratios because the record did not contain evidence 
to provide a reason to believe or suspect that a countervailable 
subsidy was received during the relevant financial period. In addition, 
we accounted for all calculation changes as a result of the original 
ministerial error allegations and addressed the issues raised by the 
Court regarding the financial statements.
    As a result, there are calculation changes due to selecting 
different by-product surrogate values and making an adjustment for the 
inventory changes in the financial statements. With regard to the AR6 
Remand, after accounting for all such changes and issues, the resulting 
antidumping margin for the only mandatory respondent, Vinh Hoan, is 
$0.06 per kilogram. Because Vinh Hoan's margin is now above de minimis, 
it would also become the margin for those companies not individually 
examined, but receiving a separate rate. The margins for the voluntary 
respondent Vinh Quang and the new shipper CL-Fish did not change and 
remain de minimis. On December 18, 2014, the Court entered judgments 
sustaining the AR6 Remand.\12\
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    \12\ See Catfish Farmers of America et al. v. United States, 
Court No. 11-00109, Slip. Op. 14-144 (CIT December 18, 2014); and 
Catfish Farmers of America et al. v. United States, Court No. 11-
00110, Slip. Op. 14-145 (CIT December 18, 2014).
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    With regard to the NSR7 Remand, after accounting for all such 
changes and issues, the resulting antidumping margins for IDI and 
THIMACO remain de minimis. On December 19, 2014, the Court entered 
judgment sustaining the Remand.\13\
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    \13\ See Catfish Farmers of America et al. v. United States, 
Court No. 11-00252, Slip. Op. 14-149 (CIT December 19, 2014).
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Timken Notice

    In its decision in Timken, 893 F.2d at 341, as clarified by Diamond 
Sawblades, the CAFC held that, pursuant to section 516A(e) of the 
Tariff Act of 1930, as amended (``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 Court's December 18, 2014, 
judgment sustaining the AR6 Remand constitutes a final decision of the 
Court that is not in harmony with the Department's AR6 Final Results. 
In addition, the Court's December 19, 2014, judgment sustaining the NSR 
7 Remand constitutes a final decision of the Court that is not in 
harmony with the Department's NSR7 Final Results. This notice is 
published in fulfillment of the publication requirement of Timken.

Amended Final Results

    Because there is now a final court decision, the Department is 
amending the AR6 Final Results with respect to Vinh Hoan, Agifish, ESS 
LLC, and South Vina. The revised weighted-average dumping margins for 
these exporters during the period April 1, 2009, through March 31, 
2010, follow:

------------------------------------------------------------------------
                                              Weighted average  dumping
               Exporter name                    margin  (dollars per
                                                      kilogram)
------------------------------------------------------------------------
Vinh Hoan Corporation.....................                          0.06
An Giang Fisheries Import and Export Joint                          0.06
 Stock Company (aka Agifish or An Giang
 Fisheries Import and Export).............
East Sea Seafoods Limited Liability                                 0.06
 Company (formerly known as East Sea
 Seafoods Joint Venture Co., Ltd.)........
Southern Fishery Industries Co., Ltd......                          0.06
------------------------------------------------------------------------

    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. In the event the Court's ruling is not appealed or, if 
appealed, upheld by the CAFC, the Department will instruct U.S. Customs

[[Page 7842]]

and Border Protection to assess antidumping duties on unliquidated 
entries of subject merchandise exported by Vinh Hoan, Agifish, ESS LLC, 
and South Vina using the assessment rate calculated by the Department 
in the Remand and listed above.

Cash Deposit Requirements

    The cash deposit rate will remain the respondent-specific rate 
established for the subsequent and most-recent period during which the 
respondent was reviewed. The cash deposit rate for the Vietnam-wide 
entity, which is 2.39 U.S. dollars per kilogram, is the rate 
established for the subsequent and most-recent period during which the 
Vietnam-wide entity, including ESS LLC, was reviewed.\14\
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    \14\ See Certain Frozen Fish Fillets from the Socialist Republic 
of Vietnam: Final Results of Antidumping Duty Administrative Review; 
2012-2013, 80 FR 2394 (January 16, 2015). For ESS LLC prior to the 
publication of the final results of review on January 16, 2015 the 
cash deposit rate remained the rate established prior to losing its 
separate rate status, which was 1.20 U.S. dollars per kilogram. See 
Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: 
Amended Final Results of Antidumping Duty Administrative Review; 
2011-2012, 79 FR 37714 (July 2, 2014).
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Notification to Interested Parties

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

    Dated: February 3, 2015.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2015-02973 Filed 2-11-15; 8:45 am]
BILLING CODE 3510-DS-P