Circumvention and Scope Inquiries on the Antidumping Duty Order on Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Partial Affirmative Final Determination of Circumvention of the Antidumping Duty Order, Partial Final Termination of Circumvention Inquiry and Final Rescission of Scope Inquiry, 38608-38611 [E6-10662]
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Date
Requester
May 30, 2006 .........................................................
May 31, 2006 .........................................................
cprice-sewell on PROD1PC66 with NOTICES
On June 16, 2006, Weifan Hongqiao
submitted a revised public version of its
request. Xinboda, Shandong
Wonderland, and Tianma Freezing each
identified itself as the producer and
exporter of the fresh garlic on which it
based its request for a new shipper
review. Weifang Hongqiao identified
itself as the exporter and Jinxiang
Dingtai Garlic Production Co., Ltd.
(‘‘Jinxiang Dingtai’’) as the producer of
the fresh garlic on which it based its
request for a new shipper review.
As required by 19 CFR 351.214(b)(2)
and (b)(2)(iii)(A), Xinboda, Shandong
Wonderland, Tianma Freezing and
Weifang Hongqiao certified that they
did not export fresh garlic to the United
States during the period of investigation
(‘‘POI’’), and that each company has
never been affiliated with any exporter
or producer which exported fresh garlic
to the United States during the POI. In
addition, as required by 19 CFR
351.214(b)(2)(ii)(B) and (iii)(A), Jinxing
Dintai, Weifang Hongqiao’s producer,
certified that it did not export fresh
garlic to the United States during the
POI and that it has never been affiliated
with any exporter or producer which
exported fresh garlic to the United
States during the POI. Furthermore,
Xinboda, Shandong Wonderland,
Tianma Freezing, and Weifang
Hongqiao have also certified that their
export activities are not controlled by
the central government of the PRC,
satisfying the requirements of 19 CFR
351.214(b)(2)(iii)(B).
Pursuant to 19 CFR 351.214(b)(2)(iv)
each exporter submitted documentation
establishing: (A) the date on which the
subject merchandise was first entered,
or withdrawn from warehouse, for
consumption; (B) the volume of its first
shipment and any subsequent
shipments; and (C) the date of its first
sale to an unaffiliated customer in the
United States. The Department
conducted Customs database queries to
confirm that each company’s shipment
had officially entered the United States
via assignment of an entry date in the
Customs database by U.S. Customs and
Border Protection (‘‘CBP’’).
Initiation of Reviews
In accordance with section
751(a)(2)(B) of the Tariff Act of 1930, as
amended (‘‘the Act’’), and 19 CFR
351.214(d)(1), and based on information
on the record, we are initiating new
shipper reviews for Xinboda, Shandong
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Jkt 208001
Jinxiang Tianma Freezing Storage Co., Ltd. (‘‘Tianma Freezing’’)
Weifang Hongqiao International Logistic Co., Ltd. (‘‘Weifang Hongqiao’’)
Wonderland, Tianma Freezing, and
Weifang Hongqiao. See Memoranda to
the File titled ‘‘New Shipper Initiation
Checklist’’ for Xiboda, Shandong
Wonderland, Tianma Freezing, and
Weifang Hongqiao, dated June 27, 2006.
We intend to issue the preliminary
results of this review not later than 180
days after the date on which this review
was initiated, and the final results of
this review within 90 days after the date
on which the preliminary results are
issued. See section 751(a)(2)(B)(iv) of
the Act.
As noted above, pursuant to 19 CFR
351.214(g)(1)(i)(B), the POR for a new
shipper review initiated in the month
immediately following the semiannual
anniversary month will be the sixmonth period immediately preceding
the semiannual anniversary month.
Therefore, the POR for the new shipper
reviews of Xinboda, Shandong
Wonderland, Tianma Freezing, and
Weifang Hongqiao will be November 1,
2005, through April 30, 2006.
It is the Department’s usual practice
in cases involving non–market
economies to require that a company
seeking to establish eligibility for an
antidumping duty rate separate from the
country–wide rate provide evidence of
the absence of de jure and de facto
government control over the company’s
export activities. Accordingly, we will
issue questionnaires to Xinboda,
Shandong Wonderland, Tianma
Freezing, and Weifang Hongqiao
including a ‘‘separate rates’’ section.
The reviews will proceed if the
responses provide sufficient indication
that Xinboda, Shandong Wonderland,
Tianma Freezing, and Weifang
Hongqiao, are not subject to either de
jure or de facto government control with
respect to their exports of fresh garlic.
However, if the exporter does not
demonstrate the company’s eligibility
for a separate rate, then the company
will be deemed not separate from the
PRC–wide entity, which exported
during the POI, and its new shipper
review will be rescinded. See 19 CFR
351.214(b)(2)(iii)(A); see also Notice of
Preliminary Results of Antidumping
Duty New Shipper Review and
Rescission of New Shipper Reviews:
Freshwater Crawfish Tail Meat from the
People’s Republic of China, 69 FR 53669
(September 2, 2004) and Brake Rotors
from the People’s Republic of China:
Rescission of Second New Shipper
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Review and Final Results and Partial
Rescission of First Antidumping Duty
Administrative Review, 64 FR 61581
(November 12, 1999).
In accordance with section
751(a)(2)(B)(iii) of the Act and 19 CFR
351.214(e), we will instruct CBP to
allow, at the option of the importer, the
posting, until the completion of these
reviews, of a single entry bond or
security in lieu of a cash deposit for
certain entries of the merchandise
exported by either Xinboda, Shandong
Wonderland, Tianma Freezing, or
Weifang Hongqiao. We will apply the
bonding option under 19 CFR
351.107(b)(1)(i) only to entries from
these four exporters for which the
respective producers under review are
the suppliers.
Interested parties that need access to
proprietary information in these new
shipper reviews should submit
applications for disclosure under
administrative protective orders in
accordance with 19 CFR 351.305 and
351.306.
This initiation and notice are in
accordance with section 751(a) of the
Act and 19 CFR 351.214 and
351.221(c)(1)(i).
Dated: June 27, 2006.
Stephen J. Claeys,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. E6–10575 Filed 7–6–06; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
[A–552–801]
Circumvention and Scope Inquiries on
the Antidumping Duty Order on Certain
Frozen Fish Fillets from the Socialist
Republic of Vietnam: Partial
Affirmative Final Determination of
Circumvention of the Antidumping
Duty Order, Partial Final Termination of
Circumvention Inquiry and Final
Rescission of Scope Inquiry
Import Administration,
International Trade Administration,
Department of Commerce.
AGENCY:
Final Determination
We determine that frozen fish fillets
produced by Lian Heng Trading Co. Ltd.
(‘‘Lian Heng Trading’’) and Lian Heng
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Investment Co. Ltd. (‘‘Lian Heng
Investment’’) (collectively, ‘‘Lian
Heng’’),1 are circumventing the
antidumping duty order on frozen fish
fillets from the Socialist Republic of
Vietnam (‘‘Vietnam’’), as provided in
section 781(b) of the Tariff Act of 1930,
as amended (‘‘the Act’’). See Notice of
Antidumping Duty Order: Certain
Frozen Fish Fillets from the Socialist
Republic of Vietnam, 68 FR 47909
(August 12, 2003) (‘‘Order’’). In
addition, we determine that frozen fish
fillets produced by Lian Heng are
covered by the antidumping duty order
on frozen fish fillets from Vietnam. We
are also terminating the circumvention
inquiry with respect to L.S.H.
(Cambodia) Pte. Ltd. (‘‘L.S.H.’’), and Sun
Wah Fisheries Co. Ltd. (‘‘Sun Wah’’),
and rescinding the concurrently
initiated scope inquiry. See
Memorandum from Stephen J. Claeys,
Deputy Assistant Secretary, Import
Administration to David M. Spooner,
Assistant Secretary, Import
Administration (‘‘Decision
Memorandum’’), dated June 16, 2006.
EFFECTIVE DATE: July 7, 2006.
FOR FURTHER INFORMATION CONTACT: Alex
Villanueva, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW,
Washington, DC, 20230; telephone (202)
482–3208.
SUPPLEMENTARY INFORMATION:
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Background
On February 22, 2006, the Department
published the preliminary
circumvention determination and
rescission of scope inquiry. See Notice
of Partial Affirmative Preliminary
Determination of Circumvention,
Preliminary Rescission of Scope Inquiry
and Extension of Final Determination,
71 FR 9068 (February 22, 2006)
(‘‘Preliminary Determination’’) . On
March 30, 2006, the Department was
notified by the International Trade
Commission (‘‘ITC’’) that consultations
pursuant to section 781(e)(2) of the Act
were not necessary. See Memorandum
to the File from Alex Villanueva,
Program Manager, dated April 3, 2006.
On April 5, 2006, Piazza Seafood World
LLC (‘‘Piazza’’) submitted new
information on the record. On April 6,
2006, the Department notified all
interested parties that it was retaining
1 Lian Heng Trading Co. Ltd. (‘‘Lian Heng
Trading’’) or Lian Heng Investment Co. Ltd. (‘‘Lian
Heng Investment’’) (collectively ‘‘Lian Heng’’). Lian
Heng Trading and Lian Heng Investment are two
separate entities. However, the two companies
share the same Chairman and Chief Executive
Officer, and both companies have exported subject
merchandise to the United States.
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Piazza’s April 5, 2006, submission in its
entirety and that additional information
could be placed on the record by C.O.B.
April 10, 2006. See Memorandum to the
File from Alex Villanueva, Program
Manager, dated April 6, 2006. The
Department also informed parties that
the deadline for submission of case and
rebuttal briefs would be extended until
April 19, 2006, and May 3, 2006,
respectively. See Id. On April 10, 2006,
Petitioners and Piazza submitted
additional new information. On April
19, 2006, Petitioners and Piazza filed
case briefs. On May 3, 2006, Petitioners
and Piazza filed rebuttal case briefs. On
June 9, 2006, the Department held a
public hearing.
Scope of the Antidumpng Duty Order
The product covered by this order is
frozen fish fillets, including regular,
shank, and strip fillets and portions
thereof, whether or not breaded or
marinated, of the species Pangasius
Bocourti, Pangasius Hypophthalmus
(also known as Pangasius Pangasius),
and Pangasius Micronemus. Frozen fish
fillets are lengthwise cuts of whole fish.
The fillet products covered by the scope
include boneless fillets with the belly
flap intact (‘‘regular’’ fillets), boneless
fillets with the belly flap removed
(‘‘shank’’ fillets), boneless shank fillets
cut into strips (‘‘fillet strips/finger’’),
which include fillets cut into strips,
chunks, blocks, skewers, or any other
shape. Specifically excluded from the
scope are frozen whole fish (whether or
not dressed), frozen steaks, and frozen
belly–flap nuggets. Frozen whole
dressed fish are deheaded, skinned, and
eviscerated. Steaks are bone–in, cross–
section cuts of dressed fish. Nuggets are
the belly–flaps. The subject
merchandise will be hereinafter referred
to as frozen ‘‘basa’’ and ‘‘tra’’ fillets,
which are the Vietnamese common
names for these species of fish. These
products are classifiable under tariff
article code 0304.20.60.33 (Frozen Fish
Fillets of the species Pangasius
including basa and tra) of the
Harmonized Tariff Schedule of the
United States (‘‘HTSUS’’).2 This order
covers all frozen fish fillets meeting the
above specification, regardless of tariff
classification. Although the HTSUS
subheading is provided for convenience
and customs purposes, our written
description of the scope of this
2 Until July 1, 2004, these products were
classifiable under tariff article codes 0304.20.60.30
(Frozen Catfish Fillets), 0304.20.60.96 (Frozen Fish
Fillets, NESOI), 0304.20.60.43 (Frozen Freshwater
Fish Fillets) and 0304.20.60.57 (Frozen Sole Fillets)
of the HTSUS.
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38609
proceeding is dispositive. See Order at
47909.
Final Rescission of Scope Inquiry
The Department continues to find that
rescission of the scope inquiry is
appropriate for the reasons stated in the
Preliminary Determination. See
Decision Memorandum at Comment 1.
Termination of the Circumvention
Inquiry for L.S.H. and Sun Wah
The Department continues to find that
it is appropriate to terminate
circumvention inquiry with respect to
L.S.H. and Sun Wah for the reasons
stated in the Preliminary Determination.
See Decision Memorandum at Comment
4. As a result, no action will be taken
with respect to exports of frozen fish
fillets to the United States from these
companies.
Statutory Provisions Regarding
Circumvention
Section 781(b)(1) of the Act provides
that the Department may find
circumvention of an antidumping duty
order when merchandise of the same
class or kind subject to the order is
completed or assembled in a foreign
country other than the country to which
the order applies. In conducting
circumvention inquiries of an
antidumping duty order under section
781(b) of the Act, the Department relies
upon the following criteria: (A)
merchandise imported into the United
States is of the same class or kind as any
merchandise produced in a foreign
country that is subject to an
antidumping duty order; (B) before
importation into the United States, such
imported merchandise is completed or
assembled in another foreign country
from merchandise which is subject to
the order or produced in the foreign
country that is subject to the order; (C)
the process of assembly or completion
in the foreign country referred to in (B)
is minor or insignificant; and (D) the
value of the merchandise produced in
the foreign country to which the
antidumping duty order applies is a
significant portion of the total value of
the merchandise exported to the United
States and (E) the administering
authority determines that action is
appropriate to prevent evasion of such
order or finding, the administering
authority, after taking into account any
advice provided by the Commission
under section 781(e) of the Act, may
include such imported merchandise
within the scope of the such order or
finding at any time such order or
finding is in effect.
Section 781(b)(2) of the Act provides
for the determination of whether the
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process is minor or insignificant. In
determining whether the process of
assembly or completion is minor or
insignificant under paragraph (1)(C), the
administering authority shall take into
account (A) the level of investment in
the foreign country, (B) level of research
and development in the foreign country,
(C) nature of the production process in
the foreign country, (D) extent of
production facilities in the foreign
country, and (E) whether the value of
the processing performed in the foreign
country represents a small proportion of
the value of the merchandise imported
into the United States.
Section 781(b)(3) of the Act further
provides that, in determining whether to
include merchandise assembled or
completed in a foreign country in an
antidumping duty order or a finding
under paragraph (1), the Department
shall take into account: (A) the pattern
of trade, including sourcing patterns; (B)
whether the manufacturer or exporter of
the merchandise described in
accordance with section 781(b)(1)(B) of
the Act is affiliated with the person who
uses the merchandise described in
accordance with section 781(b)(1)(B) to
assemble or complete in the foreign
country the merchandise that is
subsequently imported in to the United
States; and (C) whether imports into the
foreign country of the merchandise
described in accordance with section
781(b)(1)(B) have increased after the
initiation of the investigation which
resulted in the issuance of such order or
finding.
Analysis
We considered all of the comments
submitted by the parties and find that
application of adverse facts available, as
applied to the factors under section
781(b)(1) of the Act, is appropriate.
Specifically, with respect to section
781(b)(1)(A) of the Act, we find that the
product subject to the circumvention
inquiry and exported to the United
States by Lian Heng, frozen fish fillets,
is the same class or kind of merchandise
subject to the Order. With respect to
section 781(b)(1)(B)(ii) of the Act, we
find that, before importation, frozen fish
fillets are completed by Lian Heng in
Cambodia from Vietnamese–origin
whole, live fish. With respect to section
781(b)(1)(C) of the Act, we find that,
based on adverse facts available due to
Lian Heng’s failure to provide data that
could be verified, the processing of basa
and tra fish into frozen fish fillets with
respect to Lian Heng’s exports from
Cambodia is a minor or insignificant
process.3 The Department also
continues to find that under section
781(b)(1)(D) of the Act, based on
Petitioners’ record evidence, and as
adverse facts available due to Lian
Heng’s failure to provide data that could
be verified, the value of the
Vietnamese–origin whole, live fish is
significant compared to the value of the
frozen fish fillets. Therefore, pursuant to
section 781(b)(1)(E) of the Act, we affirm
our preliminary determination that
action is appropriate and necessary to
prevent Lian Heng from circumventing
the antidumping duty order on frozen
fish fillets from Vietnam. Additionally,
based on the additional factors to
consider under section 781(b)(3) of the
Act, we find that the patterns of trade
and the levels of Cambodian
importation of Vietnamese–origin
whole, live fish support an affirmative
finding of circumvention.
Consequently, under sections
781(b)(1), (2), and (3) of the Act, we find
that Lian Heng has circumvented the
Order by importing Vietnamese–origin
whole live fish into Cambodia, where it
was subsequently processed and
completed into frozen fish fillets for
export to the United States. Thus,
pursuant to section 781(b) of the Act,
frozen fish fillets processed in
Cambodia by Lian Heng from
Vietnamese–origin whole, live fish for
export to the United States should be
included in the antidumping duty order
on frozen fish fillets from Vietnam.
Finally, because the Department
continues to find that AFA is
appropriate in this final determination,
the Department relied on the
information supplied by Petitioners, and
subsequently used for purposes of
initiating this inquiry, to corroborate the
secondary information used as adverse
facts available, pursuant to section
776(c) of the Act. We find that the
information supplied by Petitioners is
reliable and relevant because it is based
upon information from public sources
including government publications
regarding the processing of live fish into
fish fillets from Cambodia. In addition,
Petitioners provided information from
Agifish, the largest fish fillets exporter
from Vietnam, which the Department
verified in the underlying investigation
as well as information used by the ITC
in making its final injury determination.
Therefore, we find that the secondary
information used as adverse facts
available has probative value.
All issues raised by the interested
parties to which we have responded are
listed in the Appendix to this notice and
addressed in the Issues and Decision
3 To determine whether a process is minor or
insignificant pursuant to section 781(b)(1)(C) of the
Act, the Department must consider the factors in
section 781(b)(2) of the Act.
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15:46 Jul 06, 2006
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Memorandum, which is hereby adopted
by this notice. Parties can find a
complete discussion of the issues raised
in this inquiry and the corresponding
recommendation in this public
memorandum, which are on file in the
Central Records Unit (‘‘CRU’’), Room B–
099 of the main Department of
Commerce building. In addition, a
complete version of the Issues and
Decision Memorandum can be accessed
directly on the internet at https://
ia.ita.doc.gov/. The paper copy and
electronic version of the Issues and
Decision Memorandum are identical in
content.
Continuation of Suspension of
Liquidation
In accordance with section 733(d) of
the Act, the Department will continue to
direct CBP to suspend liquidation and
to require a cash deposit of estimated
duties, at the Vietnam–wide rate, on all
unliquidated entries of frozen fish fillets
produced by Lian Heng that were
entered, or withdrawn from warehouse,
for consumption from October 22, 2004,
the date of initiation of the
circumvention inquiry, through July 15,
2005.
For all entries of frozen fish fillets
produced by Lian Heng entered on or
after July 16, 2005, the Department will
direct CBP to allow Lian Heng to certify
that no Vietnamese–origin fish was used
in the production of the frozen fish
fillets. The Department will not request
that CBP suspend liquidation, or require
a cash deposit of estimated duties, at the
Vietnam–wide rate, for any entries of
frozen fish fillets accompanied by the
certification in Appendix II in this
notice. However, the Department will
direct CBP to suspend liquidation and
to require a cash deposit of estimated
duties, at the Vietnam–wide rate of
63.88 percent of any entries of frozen
fish fillets not accompanied by this
certification in Appendix II of this
notice.
The Department will not direct CBP to
take any action with respect to Sun Wah
and L.S.H. or any other Cambodian
exporter other than Lian Heng.
Future Administrative Reviews
If requested, the Department may
expand the third administrative review
period back to October 22, 2004, the
date of initiation of the circumvention
inquiry, to include all of Lian Heng’s
entries covered by this determination. In
addition, we hereby serve notice to Lian
Heng that any certified entries are
subject to verification by the
Department. If a review of these
certified entries is conducted, the
Department will, at a minimum,
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examine whole fish country of origin
documentation that Lian Heng is
required to maintain, as an exporter of
fish products to the United States, by
the United States Food and Drug
Administration’s Hazard Analysis
Critical Control Point (‘‘HACCP’’)4
program and by the Bioterrorism Act of
2002.5 The Department will also
examine any other records Lian Heng
maintains in its normal course of
business supporting its certifications
that no Vietnamese–origin fish was used
in the production of its frozen fish
fillets.
Notice to Parties
This notice also serves as the only
reminder to parties subject to the
administrative protective orders
(‘‘APO’’) of their responsibility
concerning the return or destruction of
proprietary information disclosed under
APO in accordance with section 351.305
of the Department’s regulations. Timely
written notification of the return/
destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and terms of an
APO is a violation which is subject to
sanction.
This final circumvention
determination is in accordance with
section 781(b) of the Act and 19 CFR
351.225.
Dated: June 30, 2006.
David M. Spooner,
Assistant Secretarystfor Import
Administration.
Appendix I
Comment 1: Rescission of Scope
Request
[FR Doc. E6–10662 Filed 7–6–06; 8:45 am]
BILLING CODE 3510–DS–S
Comment 2: Lian Heng Determination
A. Application of AFA and the
Criteria under Section 781(b) of the
Act
B. Corroboration of AFA
Comment 3: Certification Requirements
Comment 4: Partial Rescission of
Circumvention Inquiry
Appendix II
Certification of Lian Heng1
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CERTIFICATION TO U.S. CUSTOMS
AND BORDER PROTECTION
1. Lian Heng hereby certifies that the
frozen fish fillets being exported and
4 Hazard Analysis Critical Control Point. Details
regarding this program can be found at https://
www.cfsan.fda.gov/lrd/haccp.html.
5 Details regarding the Bioterrorism Act of 2002
can be found at: https://www.fda.gov/oc/
bioterrorism/bioact.html.
1 Lian Heng Trading Co. Ltd. (‘‘Lian Heng
Trading’’) or Lian Heng Investment Co. Ltd. (‘‘Lian
Heng Investment’’) (collectively ‘‘Lian Heng’’)
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15:46 Jul 06, 2006
Jkt 208001
subject to this certification were not
produced from fish of Vietnamese origin
of the following species: Pangasius
Bocourti (commonly known as basa or
trey basa), Pangasius Hypophthalmus
(also known as Pangasius Pangasius and
commonly known as tra or trey pra), or
Pangasius Micronemus.
2. By signing this certificate, Lian
Heng also hereby agrees to maintain
sufficient documentation supporting the
above statement such as country of
origin certificates for all fish used to
process the exported frozen fish fillets.2
Further, Lian Heng agrees to submit to
verification of the underlying
documentation supporting the above
statement. Lian Heng agrees that failure
to submit to verification of the
documentation supporting these
statements will result in immediate
revocation of Lian Heng’s certification
rights and that Lian Heng will be
required to post a cash deposit equal to
the Vietnam–wide entity rate on all
entries of frozen fish fillets of the
species Pangasius Bocourti (commonly
known as basa or trey basa), Pangasius
Hypophthalmus (also known as
Pangasius Pangasius and commonly
known as tra or trey pra), or Pangasius
Micronemus. In addition, if the
Department of Commerce identifies any
misrepresentation or inconsistencies
regarding the certifications, it may
report the matter to U.S. Customs and
Border Protection for possible
enforcement action.
Signature:
Printed Name:
Title:
DEPARTMENT OF COMMERCE
International Trade Administration
[A–427–818]
Low Enriched Uranium from France:
Extension of Time Limit for Final
Results of Antidumping Duty
Administrative Review
Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: July 7, 2006.
FOR FURTHER INFORMATION CONTACT:
Mark Hoadley or Myrna Lobo, AD/CVD
Operations, Office 6, Import
AGENCY:
may include, but is not limited
to the records that (EXPORTER OF RECORD) is
required to maintain by the United States Food and
Drug Administration’s HACCP program and
Bioterrorism Act of 2002 and other documents kept
in the normal course of business.
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38611
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–3148 or (202) 482–
2371, respectively.
SUPPLEMENTARY INFORMATION:
Background
On March 7, 2006, the Department of
Commerce (the Department) published
the preliminary results of the
administrative review of the
antidumping duty order on low
enriched uranium from France for the
period February 1, 2004, through
January 31, 2005. See Low Enriched
Uranium from France: Preliminary
Results of Antidumping Duty
Administrative Review (71 FR 11386).
The current deadline for the final results
of this review is July 5, 2006.
Extension of Time Limit for Final
Results of Review
Section 751(a)(3)(A) of the Tariff Act
of 1930, as amended (the Act) requires
the Department to issue the final results
in an administrative review within 120
days after the date on which the
preliminary results were published.
However, if it is not practicable to
complete the review within this time
period, section 751(a)(3)(A) of the Act
allows the Department to extend the
time limit for the final results to 180
days from the date of publication of the
preliminary results.
The Department finds that it is not
practicable to complete the review
within the original time frame due to
the complex nature of the case. As this
case involves a unique cost calculation
methodology and the consideration of
requested cost information received
after the issuance of the preliminary
results, completion of this review is not
practicable within the original time
limit of July 5, 2006. Consequently, in
accordance with section 751(a)(3)(A) of
the Act and section 351.213(h)(2) of the
Department’s regulations, the
Department is extending the time limit
for the completion of the final results of
the review until no later than August 21,
2006, which is within 180 days from the
publication of the preliminary results.
This notice is issued and published in
accordance with section 751(a)(3)(A) of
the Act.
Dated: June 30, 2006.
Stephen J. Claeys,
Deputy Assistant Secretaryfor Import
Administration.
[FR Doc. E6–10663 Filed 7–6–06; 8:45 am]
BILLING CODE 3510–DS–S
E:\FR\FM\07JYN1.SGM
07JYN1
Agencies
[Federal Register Volume 71, Number 130 (Friday, July 7, 2006)]
[Notices]
[Pages 38608-38611]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-10662]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-801]
Circumvention and Scope Inquiries on the Antidumping Duty Order
on Certain Frozen Fish Fillets from the Socialist Republic of Vietnam:
Partial Affirmative Final Determination of Circumvention of the
Antidumping Duty Order, Partial Final Termination of Circumvention
Inquiry and Final Rescission of Scope Inquiry
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
Final Determination
We determine that frozen fish fillets produced by Lian Heng Trading
Co. Ltd. (``Lian Heng Trading'') and Lian Heng
[[Page 38609]]
Investment Co. Ltd. (``Lian Heng Investment'') (collectively, ``Lian
Heng''),\1\ are circumventing the antidumping duty order on frozen fish
fillets from the Socialist Republic of Vietnam (``Vietnam''), as
provided in section 781(b) of the Tariff Act of 1930, as amended (``the
Act''). See Notice of Antidumping Duty Order: Certain Frozen Fish
Fillets from the Socialist Republic of Vietnam, 68 FR 47909 (August 12,
2003) (``Order''). In addition, we determine that frozen fish fillets
produced by Lian Heng are covered by the antidumping duty order on
frozen fish fillets from Vietnam. We are also terminating the
circumvention inquiry with respect to L.S.H. (Cambodia) Pte. Ltd.
(``L.S.H.''), and Sun Wah Fisheries Co. Ltd. (``Sun Wah''), and
rescinding the concurrently initiated scope inquiry. See Memorandum
from Stephen J. Claeys, Deputy Assistant Secretary, Import
Administration to David M. Spooner, Assistant Secretary, Import
Administration (``Decision Memorandum''), dated June 16, 2006.
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\1\ Lian Heng Trading Co. Ltd. (``Lian Heng Trading'') or Lian
Heng Investment Co. Ltd. (``Lian Heng Investment'') (collectively
``Lian Heng''). Lian Heng Trading and Lian Heng Investment are two
separate entities. However, the two companies share the same
Chairman and Chief Executive Officer, and both companies have
exported subject merchandise to the United States.
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EFFECTIVE DATE: July 7, 2006.
FOR FURTHER INFORMATION CONTACT: Alex Villanueva, Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue, NW, Washington, DC,
20230; telephone (202) 482-3208.
SUPPLEMENTARY INFORMATION:
Background
On February 22, 2006, the Department published the preliminary
circumvention determination and rescission of scope inquiry. See Notice
of Partial Affirmative Preliminary Determination of Circumvention,
Preliminary Rescission of Scope Inquiry and Extension of Final
Determination, 71 FR 9068 (February 22, 2006) (``Preliminary
Determination'') . On March 30, 2006, the Department was notified by
the International Trade Commission (``ITC'') that consultations
pursuant to section 781(e)(2) of the Act were not necessary. See
Memorandum to the File from Alex Villanueva, Program Manager, dated
April 3, 2006. On April 5, 2006, Piazza Seafood World LLC (``Piazza'')
submitted new information on the record. On April 6, 2006, the
Department notified all interested parties that it was retaining
Piazza's April 5, 2006, submission in its entirety and that additional
information could be placed on the record by C.O.B. April 10, 2006. See
Memorandum to the File from Alex Villanueva, Program Manager, dated
April 6, 2006. The Department also informed parties that the deadline
for submission of case and rebuttal briefs would be extended until
April 19, 2006, and May 3, 2006, respectively. See Id. On April 10,
2006, Petitioners and Piazza submitted additional new information. On
April 19, 2006, Petitioners and Piazza filed case briefs. On May 3,
2006, Petitioners and Piazza filed rebuttal case briefs. On June 9,
2006, the Department held a public hearing.
Scope of the Antidumpng Duty Order
The product covered by this order is frozen fish fillets, including
regular, shank, and strip fillets and portions thereof, whether or not
breaded or marinated, of the species Pangasius Bocourti, Pangasius
Hypophthalmus (also known as Pangasius Pangasius), and Pangasius
Micronemus. Frozen fish fillets are lengthwise cuts of whole fish. The
fillet products covered by the scope include boneless fillets with the
belly flap intact (``regular'' fillets), boneless fillets with the
belly flap removed (``shank'' fillets), boneless shank fillets cut into
strips (``fillet strips/finger''), which include fillets cut into
strips, chunks, blocks, skewers, or any other shape. Specifically
excluded from the scope are frozen whole fish (whether or not dressed),
frozen steaks, and frozen belly-flap nuggets. Frozen whole dressed fish
are deheaded, skinned, and eviscerated. Steaks are bone-in, cross-
section cuts of dressed fish. Nuggets are the belly-flaps. The subject
merchandise will be hereinafter referred to as frozen ``basa'' and
``tra'' fillets, which are the Vietnamese common names for these
species of fish. These products are classifiable under tariff article
code 0304.20.60.33 (Frozen Fish Fillets of the species Pangasius
including basa and tra) of the Harmonized Tariff Schedule of the United
States (``HTSUS'').\2\ This order covers all frozen fish fillets
meeting the above specification, regardless of tariff classification.
Although the HTSUS subheading is provided for convenience and customs
purposes, our written description of the scope of this proceeding is
dispositive. See Order at 47909.
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\2\ Until July 1, 2004, these products were classifiable under
tariff article codes 0304.20.60.30 (Frozen Catfish Fillets),
0304.20.60.96 (Frozen Fish Fillets, NESOI), 0304.20.60.43 (Frozen
Freshwater Fish Fillets) and 0304.20.60.57 (Frozen Sole Fillets) of
the HTSUS.
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Final Rescission of Scope Inquiry
The Department continues to find that rescission of the scope
inquiry is appropriate for the reasons stated in the Preliminary
Determination. See Decision Memorandum at Comment 1.
Termination of the Circumvention Inquiry for L.S.H. and Sun Wah
The Department continues to find that it is appropriate to
terminate circumvention inquiry with respect to L.S.H. and Sun Wah for
the reasons stated in the Preliminary Determination. See Decision
Memorandum at Comment 4. As a result, no action will be taken with
respect to exports of frozen fish fillets to the United States from
these companies.
Statutory Provisions Regarding Circumvention
Section 781(b)(1) of the Act provides that the Department may find
circumvention of an antidumping duty order when merchandise of the same
class or kind subject to the order is completed or assembled in a
foreign country other than the country to which the order applies. In
conducting circumvention inquiries of an antidumping duty order under
section 781(b) of the Act, the Department relies upon the following
criteria: (A) merchandise imported into the United States is of the
same class or kind as any merchandise produced in a foreign country
that is subject to an antidumping duty order; (B) before importation
into the United States, such imported merchandise is completed or
assembled in another foreign country from merchandise which is subject
to the order or produced in the foreign country that is subject to the
order; (C) the process of assembly or completion in the foreign country
referred to in (B) is minor or insignificant; and (D) the value of the
merchandise produced in the foreign country to which the antidumping
duty order applies is a significant portion of the total value of the
merchandise exported to the United States and (E) the administering
authority determines that action is appropriate to prevent evasion of
such order or finding, the administering authority, after taking into
account any advice provided by the Commission under section 781(e) of
the Act, may include such imported merchandise within the scope of the
such order or finding at any time such order or finding is in effect.
Section 781(b)(2) of the Act provides for the determination of
whether the
[[Page 38610]]
process is minor or insignificant. In determining whether the process
of assembly or completion is minor or insignificant under paragraph
(1)(C), the administering authority shall take into account (A) the
level of investment in the foreign country, (B) level of research and
development in the foreign country, (C) nature of the production
process in the foreign country, (D) extent of production facilities in
the foreign country, and (E) whether the value of the processing
performed in the foreign country represents a small proportion of the
value of the merchandise imported into the United States.
Section 781(b)(3) of the Act further provides that, in determining
whether to include merchandise assembled or completed in a foreign
country in an antidumping duty order or a finding under paragraph (1),
the Department shall take into account: (A) the pattern of trade,
including sourcing patterns; (B) whether the manufacturer or exporter
of the merchandise described in accordance with section 781(b)(1)(B) of
the Act is affiliated with the person who uses the merchandise
described in accordance with section 781(b)(1)(B) to assemble or
complete in the foreign country the merchandise that is subsequently
imported in to the United States; and (C) whether imports into the
foreign country of the merchandise described in accordance with section
781(b)(1)(B) have increased after the initiation of the investigation
which resulted in the issuance of such order or finding.
Analysis
We considered all of the comments submitted by the parties and find
that application of adverse facts available, as applied to the factors
under section 781(b)(1) of the Act, is appropriate. Specifically, with
respect to section 781(b)(1)(A) of the Act, we find that the product
subject to the circumvention inquiry and exported to the United States
by Lian Heng, frozen fish fillets, is the same class or kind of
merchandise subject to the Order. With respect to section
781(b)(1)(B)(ii) of the Act, we find that, before importation, frozen
fish fillets are completed by Lian Heng in Cambodia from Vietnamese-
origin whole, live fish. With respect to section 781(b)(1)(C) of the
Act, we find that, based on adverse facts available due to Lian Heng's
failure to provide data that could be verified, the processing of basa
and tra fish into frozen fish fillets with respect to Lian Heng's
exports from Cambodia is a minor or insignificant process.\3\ The
Department also continues to find that under section 781(b)(1)(D) of
the Act, based on Petitioners' record evidence, and as adverse facts
available due to Lian Heng's failure to provide data that could be
verified, the value of the Vietnamese-origin whole, live fish is
significant compared to the value of the frozen fish fillets.
Therefore, pursuant to section 781(b)(1)(E) of the Act, we affirm our
preliminary determination that action is appropriate and necessary to
prevent Lian Heng from circumventing the antidumping duty order on
frozen fish fillets from Vietnam. Additionally, based on the additional
factors to consider under section 781(b)(3) of the Act, we find that
the patterns of trade and the levels of Cambodian importation of
Vietnamese-origin whole, live fish support an affirmative finding of
circumvention.
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\3\ To determine whether a process is minor or insignificant
pursuant to section 781(b)(1)(C) of the Act, the Department must
consider the factors in section 781(b)(2) of the Act.
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Consequently, under sections 781(b)(1), (2), and (3) of the Act, we
find that Lian Heng has circumvented the Order by importing Vietnamese-
origin whole live fish into Cambodia, where it was subsequently
processed and completed into frozen fish fillets for export to the
United States. Thus, pursuant to section 781(b) of the Act, frozen fish
fillets processed in Cambodia by Lian Heng from Vietnamese-origin
whole, live fish for export to the United States should be included in
the antidumping duty order on frozen fish fillets from Vietnam.
Finally, because the Department continues to find that AFA is
appropriate in this final determination, the Department relied on the
information supplied by Petitioners, and subsequently used for purposes
of initiating this inquiry, to corroborate the secondary information
used as adverse facts available, pursuant to section 776(c) of the Act.
We find that the information supplied by Petitioners is reliable and
relevant because it is based upon information from public sources
including government publications regarding the processing of live fish
into fish fillets from Cambodia. In addition, Petitioners provided
information from Agifish, the largest fish fillets exporter from
Vietnam, which the Department verified in the underlying investigation
as well as information used by the ITC in making its final injury
determination. Therefore, we find that the secondary information used
as adverse facts available has probative value.
All issues raised by the interested parties to which we have
responded are listed in the Appendix to this notice and addressed in
the Issues and Decision Memorandum, which is hereby adopted by this
notice. Parties can find a complete discussion of the issues raised in
this inquiry and the corresponding recommendation in this public
memorandum, which are on file in the Central Records Unit (``CRU''),
Room B-099 of the main Department of Commerce building. In addition, a
complete version of the Issues and Decision Memorandum can be accessed
directly on the internet at https://ia.ita.doc.gov/. The paper copy and
electronic version of the Issues and Decision Memorandum are identical
in content.
Continuation of Suspension of Liquidation
In accordance with section 733(d) of the Act, the Department will
continue to direct CBP to suspend liquidation and to require a cash
deposit of estimated duties, at the Vietnam-wide rate, on all
unliquidated entries of frozen fish fillets produced by Lian Heng that
were entered, or withdrawn from warehouse, for consumption from October
22, 2004, the date of initiation of the circumvention inquiry, through
July 15, 2005.
For all entries of frozen fish fillets produced by Lian Heng
entered on or after July 16, 2005, the Department will direct CBP to
allow Lian Heng to certify that no Vietnamese-origin fish was used in
the production of the frozen fish fillets. The Department will not
request that CBP suspend liquidation, or require a cash deposit of
estimated duties, at the Vietnam-wide rate, for any entries of frozen
fish fillets accompanied by the certification in Appendix II in this
notice. However, the Department will direct CBP to suspend liquidation
and to require a cash deposit of estimated duties, at the Vietnam-wide
rate of 63.88 percent of any entries of frozen fish fillets not
accompanied by this certification in Appendix II of this notice.
The Department will not direct CBP to take any action with respect
to Sun Wah and L.S.H. or any other Cambodian exporter other than Lian
Heng.
Future Administrative Reviews
If requested, the Department may expand the third administrative
review period back to October 22, 2004, the date of initiation of the
circumvention inquiry, to include all of Lian Heng's entries covered by
this determination. In addition, we hereby serve notice to Lian Heng
that any certified entries are subject to verification by the
Department. If a review of these certified entries is conducted, the
Department will, at a minimum,
[[Page 38611]]
examine whole fish country of origin documentation that Lian Heng is
required to maintain, as an exporter of fish products to the United
States, by the United States Food and Drug Administration's Hazard
Analysis Critical Control Point (``HACCP'')\4\ program and by the
Bioterrorism Act of 2002.\5\ The Department will also examine any other
records Lian Heng maintains in its normal course of business supporting
its certifications that no Vietnamese-origin fish was used in the
production of its frozen fish fillets.
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\4\ Hazard Analysis Critical Control Point. Details regarding
this program can be found at https://www.cfsan.fda.gov/lrd/
haccp.html.
\5\ Details regarding the Bioterrorism Act of 2002 can be found
at: https://www.fda.gov/oc/bioterrorism/bioact.html.
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Notice to Parties
This notice also serves as the only reminder to parties subject to
the administrative protective orders (``APO'') of their responsibility
concerning the return or destruction of proprietary information
disclosed under APO in accordance with section 351.305 of the
Department's regulations. Timely written notification of the return/
destruction of APO materials or conversion to judicial protective order
is hereby requested. Failure to comply with the regulations and terms
of an APO is a violation which is subject to sanction.
This final circumvention determination is in accordance with
section 781(b) of the Act and 19 CFR 351.225.
Dated: June 30, 2006.
David M. Spooner,
Assistant Secretarystfor Import Administration.
Appendix I
Comment 1: Rescission of Scope Request
Comment 2: Lian Heng Determination
A. Application of AFA and the Criteria under Section 781(b) of the
Act
B. Corroboration of AFA
Comment 3: Certification Requirements
Comment 4: Partial Rescission of Circumvention Inquiry
Appendix II
Certification of Lian Heng\1\
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\1\ Lian Heng Trading Co. Ltd. (``Lian Heng Trading'') or Lian
Heng Investment Co. Ltd. (``Lian Heng Investment'') (collectively
``Lian Heng'')
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CERTIFICATION TO U.S. CUSTOMS AND BORDER PROTECTION
1. Lian Heng hereby certifies that the frozen fish fillets being
exported and subject to this certification were not produced from fish
of Vietnamese origin of the following species: Pangasius Bocourti
(commonly known as basa or trey basa), Pangasius Hypophthalmus (also
known as Pangasius Pangasius and commonly known as tra or trey pra), or
Pangasius Micronemus.
2. By signing this certificate, Lian Heng also hereby agrees to
maintain sufficient documentation supporting the above statement such
as country of origin certificates for all fish used to process the
exported frozen fish fillets.\2\ Further, Lian Heng agrees to submit to
verification of the underlying documentation supporting the above
statement. Lian Heng agrees that failure to submit to verification of
the documentation supporting these statements will result in immediate
revocation of Lian Heng's certification rights and that Lian Heng will
be required to post a cash deposit equal to the Vietnam-wide entity
rate on all entries of frozen fish fillets of the species Pangasius
Bocourti (commonly known as basa or trey basa), Pangasius Hypophthalmus
(also known as Pangasius Pangasius and commonly known as tra or trey
pra), or Pangasius Micronemus. In addition, if the Department of
Commerce identifies any misrepresentation or inconsistencies regarding
the certifications, it may report the matter to U.S. Customs and Border
Protection for possible enforcement action.
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\2\ Documentation may include, but is not limited to the records
that (EXPORTER OF RECORD) is required to maintain by the United
States Food and Drug Administration's HACCP program and Bioterrorism
Act of 2002 and other documents kept in the normal course of
business.
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Signature:
Printed Name:
Title:
[FR Doc. E6-10662 Filed 7-6-06; 8:45 am]
BILLING CODE 3510-DS-S