Notice2021-21405
Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Court Decision Not in Harmony With the Results of the Antidumping Duty Administrative Review; Notice of Amended Final Results
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 1, 2021
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
On September 20, 2021, the U.S. Court of International Trade (CIT) issued its final judgment in NTSF Seafoods Joint Stock Company and Vinh Quang Fisheries Corporation v. United States, Court No. 19- 00063, sustaining the Department of Commerce (Commerce)'s remand results pertaining to the administrative review of the antidumping duty (AD) order on certain frozen fish fillets from the Socialist Republic of Vietnam covering the period August 1, 2016, through July 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 dumping margins assigned to NTSF Seafoods Joint Stock Company (NTSF) and Vinh Quang Fisheries Corporation (Vinh Quang).
Full Text
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<title>Federal Register, Volume 86 Issue 188 (Friday, October 1, 2021)</title>
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[Federal Register Volume 86, Number 188 (Friday, October 1, 2021)]
[Notices]
[Pages 54432-54433]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-21405]
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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 Decision Not in Harmony With the Results of
the Antidumping Duty Administrative Review; Notice of Amended Final
Results
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On September 20, 2021, the U.S. Court of International Trade
(CIT) issued its final judgment in NTSF Seafoods Joint Stock Company
and Vinh Quang Fisheries Corporation v. United States, Court No. 19-
00063, sustaining the Department of Commerce (Commerce)'s remand
results pertaining to the administrative review of the antidumping duty
(AD) order on certain frozen fish fillets from the Socialist Republic
of Vietnam covering the period August 1, 2016, through July 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
dumping margins assigned to NTSF Seafoods Joint Stock Company (NTSF)
and Vinh Quang Fisheries Corporation (Vinh Quang).
DATES: Applicable September 30, 2021.
FOR FURTHER INFORMATION CONTACT: Javier Barrientos, AD/CVD Operations,
Office V, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-2243.
SUPPLEMENTARY INFORMATION:
Background
On April 29, 2019, Commerce published its Final Results.\1\ In the
Final Results, Commerce denied NTSF's reported fish meal and fish oil
by-product offsets based on NTSF's statements that it ``sold'' the head
and bone product (i.e., the inputs to fish meal/oil) to an unaffiliated
processor. Given these statements, Commerce concluded that the
downstream fish meal/oil products were not produced and sold by NTSF,
and, therefore, not eligible for by-product offsets.\2\ As a result,
Commerce only granted a by-product offset for the fish head and bone
product sold by NTSF, and not the downstream fish oil and fish meal
produced by the unaffiliated processor.\3\
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\1\ See Certain Frozen Fish Fillets from the Socialist Republic
of Vietnam: Final Results, and Final Results of No Shipments of the
Antidumping Duty Administrative Review; 2016-2017, 84 FR 18007
(April 29, 2019) (Final Results), and accompanying Issues and
Decision Memorandum (IDM).
\2\ See Final Results IDM at Comment 11.
\3\ Id.
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On December 21, 2020, the CIT issued its Remand Order.\4\ The
Remand Order addressed whether three aspects of the Final Results were
supported by substantial evidence: (1) Commerce's selection of
financial statements for its calculation of surrogate financial ratios;
(2) Commerce's calculation of surrogate values for NTSF's fingerlings;
and (3) Commerce's denial of by-product offsets for fish meal and fish
oil. The CIT affirmed Commerce's Final Results with respect to issues 1
and 2. With respect to issue 3, the CIT concluded that Commerce's
denial of by-product offsets for fish meal and fish oil was unsupported
by substantial evidence and, thus, remanded the decision to Commerce to
explain its analysis of the record evidence cited by NTSF or otherwise
change its determination.\5\
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\4\ See NTSF Seafoods Joint Stock Company and Vinh Quang
Fisheries Corporation v. United States, Court No. 19-00063, Slip Op.
20-180 (CIT December 21, 2020) (Remand Order).
\5\ Id.
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In its Final Remand Redetermination, issued in March 2021, Commerce
found that NTSF's fish meal and fish oil by-products were produced
pursuant to a tolling arrangement with an unaffiliated processor and
determined that NTSF later sold the by-products to unaffiliated
purchasers.\6\ Commerce, thus, found that by-product offsets for NTSF's
sales of fish meal and fish oil were warranted and, accordingly, made
changes to the margin calculations for NTSF.\7\
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\6\ See Final Results of Redetermination Pursuant to Court
Remand, NTSF Seafoods Joint Stock Company and Vinh Quang Fisheries
Corporation v. United States, Court No. 19-00063, Slip Op. 20-180
(CIT December 21, 2020), dated March 22, 2021 (Final Remand
Redetermination).
\7\ Id.
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Commerce also made changes to the rate assigned to a reviewed
company that it did not individually examine, but which demonstrated
its eligibility for separate rate and is a party to the litigation,
i.e., Vinh Quang.\8\
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\8\ Id.
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On September 20, 2021, the CIT sustained Commerce's Final Remand
Redetermination.\9\
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\9\ See NTSF Seafoods Joint Stock Company and Vinh Quang
Fisheries Corporation v. United States, Court No. 19-00063, Slip Op.
21-121, dated September 20, 2021.
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[[Page 54433]]
Timken Notice
In its decision in Timken,\10\ as clarified by Diamond
Sawblades,\11\ the Court of Appeals for the Federal Circuit held that,
pursuant to section 516A(c) 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 September
20, 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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\10\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir.
1990) (Timken).
\11\ See Diamond Sawblades Mfrs. 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
the Final Results with respect to NTSF and Vinh Quang as follows:\12\
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\12\ See Final Remand Redetermination at 16-17.
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Weighted-
average
dumping
Producer/exporter margin
(dollars/
kilogram)
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NTSF Seafoods Joint Stock Company........................... 1.28
Vinh Quang Fisheries Corporation............................ 1.28
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Cash Deposit Requirements
Because NTSF has a superseding cash deposit rate, i.e., there have
been 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 NTSF. For Vinh Quang, which does not have a superseding
cash deposit rate, Commerce will issue revised cash deposit
instructions to CBP.
Liquidation of Suspended Entries
At this time, Commerce remains enjoined by the CIT order from
liquidating entries that: were exported by NTSF and Vinh Quang and were
entered, or withdrawn from warehouse, for consumption during the period
August 1, 2016, through July 31, 2017. These entries will remain
enjoined pursuant to the terms of the injunction during the pendency of
any appeals process.
In the event that 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 NTSF and Vinh Quang in
accordance with 19 CFR 351.212(b). We will instruct CBP to apply the
per unit assessment rates listed above to all entries of subject
merchandise during the period of review which were exported by NTSF and
Vinh Quang.
For NTSF, we will instruct CBP to assess antidumping duties on all
appropriate entries covered by this review when the importer-specific
ad valorem assessment rate is not zero or de minimis. Where an
importer-specific ad valorem assessment rate is zero or de minimis,\13\
we will instruct CBP to liquidate the appropriate entries without
regard to antidumping duties. For entries of subject merchandise during
the period of review produced by NTSF for which it did not know its
merchandise was destined for the United States, we will instruct CBP to
liquidate unreviewed entries at the Vietnam-wide rate if there is no
rate for the intermediate company(ies) involved in the transaction.
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\13\ See 19 CFR 351.106(c)(2).
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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: September 27, 2021.
Christian Marsh,
Acting Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2021-21405 Filed 9-30-21; 8:45 am]
BILLING CODE 3510-DS-P
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