E9-15831. Certain Frozen and Canned Warmwater Shrimp from Thailand: Notice of Court Decision Not in Harmony With Final Determination of Sales at Less Than Fair Value

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On June 24, 2009, the United States Court of International Trade (CIT) sustained the Department of Commerce's (the Department's) second redetermination pursuant to the CIT's remand in Thai I-Mei Frozen Foods Co., Ltd. v. United States, Court No. 05-00197 (Jun. 24, 2009) (Thai I-Mei III). See Final Results of Redetermination Pursuant to Court Remand, dated March 18, 2009 (found at http://ia.ita.doc.gov/​remands). 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), the Department is notifying the public that the final judgment in this case is not in harmony with the Department's final determination in the less-than-fair-value (LTFV) investigation of certain frozen warmwater shrimp from Thailand. See Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Frozen and Canned Warmwater Shrimp From Thailand, 69 FR 76918 (Dec. 23, 2004), as amended by the Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Thailand, 70 FR 5145 (Feb. 1, 2005) (Final Determination).

EFFECTIVE DATE:

July 6, 2009.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Eastwood, AD/CVD Operations, Office 2, Import Administration International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone [phone].

SUPPLEMENTARY INFORMATION:

Background

On February 5, 2005, the Department published its amended final determination in the LTFV investigation of certain frozen warmwater shrimp from Thailand. See Final Determination. In the Final Determination, we based the constructed value (CV) profit for one respondent, Thai I-Mei Frozen Foods Co., Ltd. (Thai I-Mei), on the weighted-average profits earned by the other respondents in the investigation, in accordance with our practice.

On August 26, 2008, the CIT held that the CV profit rate for Thai I-Mei was not determined according to a “reasonable method” as required by the Tariff Act of 1930, as amended (the Act), and remanded the issue to the Department to “redetermine a constructed value profit rate for Thai I-Mei that is in accordance with law.”¹ See Thai I-Mei II.

On March 18, 2009, the Department issued its final results of redetermination pursuant to Thai I-Mei II. In this remand redetermination, the Department recalculated the CV profit rate for Thai I-Mei using the weighted-average of the other respondents' profit on the third country sales of the foreign like product both within and outside the ordinary course of trade, because the CIT found this method reasonable. The Department's second redetermination changed the Final Determination dumping margin for Thai I-Mei from 5.29 percent to 1.88 percent.

Timken Notice

In its decision in Timken, 893 F.2d at 341, the CAFC 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 decision in Thai I-Mei III on June 24, 2009, constitutes a final decision of that court that is not in harmony with the Department's Final Determination. 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. In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will publish an amended final determination and exclude shrimp produced and exported by Thai I-Mei from the antidumping duty order on frozen warmwater shrimp from Thailand.

This notice is issued and published in accordance with section 516A(c)(1) of the Act.

Dated: June 29, 2009.

John M. Andersen,

Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.

Footnotes

1.  This was the second remand ruling by the CIT on this issue. Previously, the CIT required the Department to provide further explanation of its CV profit methodology. See Thai I-Mei Frozen Foods Co., Ltd. v. United States, 477 F. Supp. 2d 1332 (CIT 2007) (Thai I-Mei I). Although the Department complied with this order (see Final Results of Redetermination Pursuant to Court Remand, dated June 8, 2007, found at http://ia.ita.doc.gov/​remands),, the CIT rejected it in Thai I-Mei Frozen Foods Co., Ltd. v. United States, Court No. 05-00197 (Aug. 26, 2008) (Thai I-Mei II).