Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Partial Rescission and Preliminary Results of the First New Shipper Reviews, 6119-6125 [E8-1899]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 73, Number 22 (Friday, February 1, 2008)]
[Notices]
[Pages 6119-6125]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-1899]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-801]


Certain Frozen Fish Fillets From the Socialist Republic of 
Vietnam: Partial Rescission and Preliminary Results of the First New 
Shipper Reviews

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting new 
shipper reviews (``NSRs'') of the antidumping duty order on certain 
frozen fish fillets from the Socialist Republic of Vietnam 
(``Vietnam'') that cover the period of review (``POR'') of August 1, 
2006, through January 31, 2007.\1\ See Notice of Antidumping Duty 
Order: Certain Frozen Fish Fillets from the Socialist Republic of 
Vietnam, 68 FR 47909 (August 12, 2003) (``Order''). On March 22, 2007, 
the Department initiated the semi-annual new shipper reviews for Vinh 
Quang Fisheries Corporation (``Vinh Quang''), Ngoc Thai Company (``Ngoc 
Thai''), and Anvifish Co., Ltd. (``Anvifish''). See Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam: Initiation of 
Antidumping Duty New Shipper Reviews, 72 FR 15653 (April 2, 2007).
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    \1\ On November 6, 2007, the Department sent a letter informing 
parties that the POR was extended until February 26, 2007. Upon 
further review of the record, the Department determines that an 
extension of the POR is unnecessary.
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    We are preliminarily rescinding the new shipper reviews of Vinh 
Quang and Ngoc Thai because at the time of their requests for a new 
shipper review, the deadline for such requests had passed, pursuant to 
section 351.214(c) of the Department's regulations. We preliminarily 
determine that Anvifish has made sales in the United States at less 
than normal value (``NV''). If these preliminary results are adopted in 
our final results of review, we will instruct U.S. Customs and Border 
Protection (``CBP'') to assess antidumping duties on entries of subject 
merchandise during the POR for which the importer-specific assessment 
rates are above de minimis.

DATES: Effective Date: February 1, 2008.

FOR FURTHER INFORMATION CONTACT: Julia Hancock and Nicole Bankhead, AD/
CVD Operations, Office 9, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
1394 and (202) 482-9068, respectively.

SUPPLEMENTARY INFORMATION: 

Case History

General

    On January 31, February 21, and February 28, 2007, the Department 
received requests for new shipper reviews from Vinh Quang, Ngoc Thai, 
and Anvifish, respectively. On April 5, 2007, after initiating the 
reviews, the Department issued antidumping duty questionnaires to the 
three companies participating in the new shipper reviews. The 
Department subsequently issued supplemental questionnaires to all 
companies under review between June 2007 and December 2007.

Extension of Preliminary Results

    On September 12, 2007, the Department extended the preliminary 
results of these new shipper reviews to December 21, 2007. See Certain 
Frozen Fish Fillets from the Socialist Republic of Vietnam: Extension 
of Time Limits for the Preliminary Results of the 2006-2007 Semi-Annual 
New Shipper Reviews, 72 FR 52048 (September 12, 2007). On December 21, 
2007, the Department extended the preliminary results of these new 
shipper reviews a second time to January 22, 2008. See Certain Frozen 
Fish Fillets from the Socialist Republic of Vietnam: Extension of Time 
Limits for the Preliminary Results of the 2006-2007 Semi-Annual New 
Shipper Reviews, 72 FR 72668 (December 21, 2007).

Surrogate Country and Surrogate Values

    On June 22, 2007, the Department sent interested parties a letter 
requesting comments on the surrogate country and information pertaining 
to valuing factors of production.
    On August 7, 2007, Ngoc Thai requested that the Department extend 
the deadline to submit information pertaining to valuing factors of 
production. On August 9, 2007, the Department extended the deadline to 
submit information pertaining to valuing factors of production by three 
weeks to August 31, 2007.
    On August 31, 2007, Catfish Farmers of America and individual U.S. 
catfish processors (collectively, ``Petitioners'') submitted comments 
on the surrogate country and information pertaining to valuing factors 
of production. No other party has submitted surrogate values or 
surrogate country comments on the record of this proceeding.

Scope of the 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 codes 1604.19.4000,\2\ 1604.19.5000,\3\ 0305.59.4000,\4\ 
0304.29.6033 \5\ (Frozen Fish Fillets of the species Pangasius 
including basa and tra) of the Harmonized Tariff Schedule of the United 
States (``HTSUS'').\6\ This Order

[[Page 6120]]

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 the Order is dispositive.
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    \2\ See Memorandum to the File, from Cindy Robinson, Senior Case 
Analyst, Office 9, Import Administration, Subject: Frozen Fish 
Fillets: Third Addition of Harmonized Tariff Number, (March 1, 
2007). This HTS went into effect on March 1, 2007.
    \3\ See Memorandum to the File, from Cindy Robinson, Senior Case 
Analyst, Office 9, Import Administration, Subject: Frozen Fish 
Fillets: Third Addition of Harmonized Tariff Number, (March 1, 
2007). This HTS went into effect on March 1, 2007.
    \4\ See Memorandum to the File, from Cindy Robinson, Senior Case 
Analyst, Office 9, Import Administration, Subject: Frozen Fish 
Fillets: Second Addition of Harmonized Tariff Number, (February 2, 
2007). This HTS went into effect on February 1, 2007.
    \5\ See Memorandum to the File, from Cindy Robinson, Senior Case 
Analyst, Office 9, Import Administration, Subject: Frozen Fish 
Fillets: Addition of Harmonized Tariff Number, (January 30, 2007). 
This HTS went into effect on February 1, 2007.
    \6\ 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. Until February 1, 2007, these products were classifiable 
under tariff article code 0304.20.60.33 (Frozen Fish Fillets of the 
species Pangasius including basa and tra) of the HTSUS.
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Verification

    Pursuant to 19 CFR 351.307(b)(iv), we conducted verification of the 
sales and factors of production (``FOP'') for Anvifish.\7\
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    \7\ The verification of Anvifish's sales and FOPs took place 
from November 5 through November 13, 2007. See Memorandum to the 
File through Alex Villanueva, Program Manager, Office 9, from Nicole 
Bankhead, Senior Case Analyst: Verification of the Sales and Factors 
Response of Anvifish Co., Ltd. (``Anvifish'') and its Affiliate D&T 
Food Company (``D&T'') in the Antidumping New Shipper Review of 
Frozen Fish Fillets from Vietnam (January 22, 2008) (``Anvifish's 
Verification Report'').
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Affiliation

    Section 771(33) of the Tariff Act of 1930, as amended, (``the 
Act''), provides that:
    The following persons shall be considered to be ``affiliated'' or 
``affiliated persons'':
    (A) Members of a family, including brothers and sisters (whether by 
the whole or half blood), spouse, ancestors, and lineal descendants.
    (B) Any officer or director of an organization and such 
organization.
    (C) Partners.
    (D) Employer and employee.
    (E) Any person directly or indirectly owning, controlling, or 
holding with power to vote, 5 percent or more of the outstanding voting 
stock or shares of any organization and such organization.
    (F) Two or more persons directly or indirectly controlling, 
controlled by, or under common control with, any person.
    (G) Any person who controls any other person and such other person.

Additionally, section 771(33) of the Act stipulates that: ``For 
purposes of this paragraph, a person shall be considered to control 
another person if the person is legally or operationally in a position 
to exercise restraint or direction over the other person.''

Vinh Quang

    Based on the record evidence in these new shipper reviews, we 
preliminarily find that Vinh Quang is affiliated with New Century 
Trading Company (``New Century''), pursuant to section 771(33) of the 
Act. For a detailed discussion of our analysis, please see Memorandum 
to James C. Doyle, Director, Office 9, through Alex Villanueva, Program 
Manager, Office 9, from Julia Hancock, Senior Case Analyst, Subject: 
New Shipper Review of the Antidumping Duty Order on Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam: Affiliation and 
Collapsing, (January 22, 2008) (``Vinh Quang Affiliation Memo''). In 
addition, based on the evidence presented in Vinh Quang's questionnaire 
responses, we preliminarily find that Vinh Quang and New Century should 
be treated as a single entity for purposes of this new shipper review. 
See 19 CFR 351.401(f)(1); see also Vinh Quang Affiliation Memo for a 
discussion of the proprietary aspects of this relationship.

Ngoc Thai

    Based on the record evidence in these new shipper reviews, we 
preliminarily find that Ngoc Thai is affiliated with Thai Tan Seafood 
Company (``Thai Tan''), Ngoc Thu Company Ltd. (``Ngoc Thu''), and Kim 
Anh Company (``Kim Anh''), pursuant to section 771(33) of the Act. For 
a detailed discussion of our analysis, please see Memorandum to James 
C. Doyle, Director, Office 9, through Alex Villanueva, Program Manager, 
Office 9, from Michael Holton, Senior Case Analyst, Subject: New 
Shipper Review of the Antidumping Duty Order on Certain Frozen Fish 
Fillets from the Socialist Republic of Vietnam: Affiliation and 
Collapsing of Ngoc Thai Company Ltd., (January 22, 2008) (``Ngoc Thai 
Affiliation Memo''). In addition, based on the evidence presented in 
Ngoc Thai's questionnaire responses, we preliminarily find that Ngoc 
Thai, Thai Tan, Ngoc Thu, and Kim Anh should be treated as a single 
entity for purposes of this new shipper review. See 19 CFR 
351.401(f)(1); see also Ngoc Thai Affiliation Memo for a discussion of 
the proprietary aspects of this relationship.

Anvifish

     Based on the record evidence in these new shipper reviews, we 
preliminarily find that Anvifish was not affiliated with its U.S. 
customer, D&T Food Company (``D&T''), within the meaning of section 
771(33) of the Act for the portion of the POR that Anvifish sold 
subject merchandise to D&T that were then resold by D&T. In their 
submissions, Anvifish reported that one of D&T's owners, Daniel Yet, 
was affiliated to Anvifish through his ownership in an investment 
company. Anvifish reported that this investment company was a 
shareholder of Anvifish during the POR. However, the Department finds 
that the record evidence demonstrates that Anvifish was not affiliated 
with D&T through this investment company's ownership in Anvifish during 
the portion of the POR that Anvifish sold subject merchandise to D&T 
that was then resold by D&T. See Honey from the People's Republic of 
China: Final Results and Final Rescission, in Part, of Antidumping Duty 
Administrative Review, 70 FR 38873 (July 6, 2005) and accompanying 
Issues and Decision Memorandum at Comment 8 (``Honey 2nd AR'') (the 
Department found that the respondents, Jinfu PRC and Jinfu USA, were 
not affiliated during the period of review because the purchase of 
stocks was not completed during the portion of the period of review 
that the sales occurred). In the Honey 2nd AR, the Department found 
that the respondents were not affiliated because the certificate of 
stock transfer was not dated within the portion of the period of review 
that the sales occurred and there was ``no reliable evidence that the 
original owner received payment for his interest'' prior to the 
issuance of the certificate of stock transfer. Id. In this case, the 
Department notes that the record does not contain a certificate of 
stock transfer or similar documentation that identifies that this 
investment company obtained shares in Anvifish during the portion of 
the POR that Anvifish sold subject merchandise to D&T and was then 
resold by D&T. Although it is the Department's practice to make 
affiliation determinations based on the context of the execution of a 
stock transfer and the purchase in a company, absent this information, 
the Department has relied upon payment documentation as the date for 
when the investment company transferred funds and thus became a part 
owner of Anvifish. See Honey 2nd AR, 70 FR 38873 at Comment 8; 
Anvifish's Verification Report, at 6.
    During the POR, Anvifish made multiple sales to D&T. See Memorandum 
to the File through Alex Villanueva, Program Manager, Office 9, from 
Nicole Bankhead, Senior Case Analyst: Preliminary Results of the 
Antidumping New Shipper Review of Frozen Fish Fillets from Vietnam: 
Preliminary Results Analysis Memo of Anvifish Co., Ltd. (``Anvifish'') 
(January 22, 2008) (``Anvifish's Preliminary Analysis Memo''), at 2. 
Out of these sales, all but one were made prior to the date the 
Department has determined as the appropriate date of affiliation, i.e., 
investment payment date. The one sale made after the Department finds 
Anvifish affiliated with D&T within the meaning of section 771(33) of 
the Act was subsequently not resold during the

[[Page 6121]]

POR. Therefore, for these preliminary results, the Department is 
treating all but one sale made between Anvifish and D&T on an export 
price (``EP'') basis. However, the Department finds that Anvifish is 
affiliated with D&T as of the date of the payment documentation, within 
the meaning of section 771(33) of the Act. See Anvifish's Preliminary 
Analysis Memo.

Preliminary Intent To Rescind

Vinh Quang

    Section 351.214(b)(2)(iv)(A) of the Department's regulations states 
that documentation establishing the date of first entry is: ``The date 
on which subject merchandise of the exporter or producer making the 
request was first entered, or withdrawn from warehouse, for 
consumption, or, if the exporter or producer cannot establish the date 
of first entry, the date on which the exporter or producer first 
shipped the subject merchandise for export to the United States.'' See 
19 CFR 351.214(b)(2)(iv)(A). Additionally, section 351.214(c) of the 
Department's regulations states: ``An exporter or producer may request 
a new shipper review within one year of the date referred to in 
paragraph (b)(2)(iv)(A) of this section.'' See 19 CFR 351.214(c).
    As discussed above, we preliminarily determine that Vinh Quang and 
New Century are a single entity. See Vinh Quang Affiliation Memo. 
Additionally, we find that as a single entity Vinh Quang and New 
Century shipped subject merchandise over a year prior to the POR of 
this new shipper review. As a result, at the time of Vinh Quang's 
request for review, the deadline for requesting a new shipper review of 
Vinh Quang and New Century's first entry of subject merchandise had 
passed, pursuant to sections 351.214(b)(2)(iv)(A) and 351.214(c) of the 
Department's regulations. Id. Accordingly, we find that Vinh Quang/New 
Century's request for a new shipper review is untimely, pursuant to 
sections 351.214(b)(2)(iv)(A) and 351.214(c) of the Department's 
regulations. See Vinh Quang Affiliation Memo. Therefore, the Department 
is preliminarily rescinding Vinh Quang's new shipper review.

Ngoc Thai

    Section 351.214(b)(2)(iv)(A) of the Department's regulations states 
that documentation establishing the date of first entry is: ``The date 
on which subject merchandise of the exporter or producer making the 
request was first entered, or withdrawn from warehouse, for 
consumption, or, if the exporter or producer cannot establish the date 
of first entry, the date on which the exporter or producer first 
shipped the subject merchandise for export to the United States.'' See 
19 CFR 351.214(b)(2)(iv)(A). Additionally, section 351.214(c) of the 
Department's regulations states: ``An exporter or producer may request 
a new shipper review within one year of the date referred to in 
paragraph (b)(2)(iv)(A) of this section.'' See 19 CFR 351.214(c).
    As discussed above, we preliminarily determine that the Kim Anh 
Group, including Ngoc Thai, is a single entity. See Ngoc Thai 
Affiliation Memo. Additionally, we find that as a single entity the Kim 
Anh Group shipped subject merchandise over a year prior to the POR of 
this new shipper review. As a result, at the time of Ngoc Thai's 
request for review, the deadline for requesting a new shipper review of 
the Kim Anh Group's first entry of subject merchandise had passed, 
pursuant to sections 351.214(b)(2)(iv)(A) and 351.214(c) of the 
Department's regulations. Id. Accordingly, we find that the Kim Anh 
Group's request for a new shipper review is untimely, pursuant to 
sections 351.214(b)(2)(iv)(A) and 351.214(c) of the Department's 
regulations. See Ngoc Thai Affiliation Memo. Therefore, the Department 
is preliminarily rescinding Ngoc Thai's new shipper review.

New Shipper Review Bona Fide Analysis

    Consistent with the Department's practice, we investigated the bona 
fide nature of the sale made by Anvifish for this new shipper review. 
We found that the new shipper sale by Anvifish was made on a bona fide 
basis. Based on our investigation into the bona fide nature of the 
sales, the questionnaire responses submitted by Anvifish, and our 
verification thereof, as well the companies' eligibility for a separate 
rate (see Separate Rates Determination section below) and the 
Department's preliminary determination that Anvifish was not affiliated 
with any exporter or producer that had previously shipped subject 
merchandise to the United States, we preliminarily determine that 
Anvifish has met the requirements to qualify as a new shipper during 
this POR. Therefore, for the purposes of these preliminary results of 
review, we are treating Anvifish's sales of subject merchandise to the 
United States as an appropriate transaction for this new shipper 
review.\8\
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    \8\ For more detailed discussion of this issue, please see 
Memorandum from Nicole Bankhead, Senior Case Analyst, Office 9, 
through Alex Villanueva, Program Manager, Office 9, to James C. 
Doyle, Director, Office 9: Bona Fide Nature of the Sale in the 
Antidumping Duty New Shipper Review of Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam: Anvifish Co., Ltd., (January 
22, 2008).
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Facts Available (``FA'')

    Section 776(a)(2) of the Tariff Act of 1930, as amended (``Act''), 
provides that, if an interested party: (A) Withholds information that 
has been requested by the Department; (B) fails to provide such 
information in a timely manner or in the form or manner requested 
subject to sections 782(c)(1) and (e) of the Act; (C) significantly 
impedes a proceeding under the antidumping statute; or (D) provides 
such information but the information cannot be verified, the Department 
shall, subject to subsection 782(d) of the Act, use facts otherwise 
available in reaching the applicable determination.
    Section 782(c)(1) of the Act provides that if an interested party 
``promptly after receiving a request from {the Department{time}  for 
information, notifies {the Department{time}  that such party is unable 
to submit the information requested in the requested form and manner, 
together with a full explanation and suggested alternative form in 
which such party is able to submit the information,'' the Department 
may modify the requirements to avoid imposing an unreasonable burden on 
that party.
    Section 782(d) of the Act provides that, if the Department 
determines that a response to a request for information does not comply 
with the request, the Department will inform the person submitting the 
response of the nature of the deficiency and shall, to the extent 
practicable, provide that person the opportunity to remedy or explain 
the deficiency. If that person submits further information that 
continues to be unsatisfactory, or this information is not submitted 
within the applicable time limits, the Department may, subject to 
section 782(e), disregard all or part of the original and subsequent 
responses, as appropriate.
    Section 782(e) of the Act states that the Department shall not 
decline to consider information deemed ``deficient'' under section 
782(d) if: (1) The information is submitted by the established 
deadline; (2) the information can be verified; (3) the information is 
not so incomplete that it cannot serve as a reliable basis for reaching 
the applicable determination; (4) the interested party has demonstrated 
that it acted to the best of its ability; and (5) the information can 
be used without undue difficulties.

[[Page 6122]]

    Furthermore, section 776(b) of the Act states that if the 
Department ``finds that an interested party has failed to cooperate by 
not acting to the best of its ability to comply with a request for 
information from the administering authority or the Commission, the 
administering authority or the Commission * * *, in reaching the 
applicable determination under this title, may use an inference that is 
adverse to the interests of that party in selecting from among the 
facts otherwise available.'' See also, Statement of Administrative 
Action (``SAA'') accompanying the Uruguay Round Agreements Act 
(``URAA''), H.R. Rep. No. 103-316, Vol. 1 at 870 (1994).
    Adverse inferences are appropriate ``to ensure that the party does 
not obtain a more favorable result by failing to cooperate than if it 
had cooperated fully.'' See SAA; Mannesmannrohren-Werke AG v. United 
States, 77 F. Supp. 2d 1302 (CIT 1999). The Court of Appeals for the 
Federal Circuit (``CAFC''), in Nippon Steel Corporation v. United 
States, 337 F.3d 1373, 1382 (Fed. Cir. 2003) (``Nippon Steel''), 
provided an explanation of the ``failure to act to the best of its 
ability'' standard, stating that the ordinary meaning of ``best'' means 
``one's maximum effort,'' and that the statutory mandate that a 
respondent act to the ``best of its ability'' requires the respondent 
to do the maximum it is able to do. Id. The CAFC acknowledged, however, 
that ``deliberate concealment or inaccurate reporting'' would certainly 
be sufficient to find that a respondent did not act to the best of its 
ability, although it indicated that inadequate responses to agency 
inquiries ``would suffice'' as well. Id. Compliance with the ``best of 
the ability'' standard is determined by assessing whether a respondent 
has put forth its maximum effort to provide the Department with full 
and complete answers to all inquiries in an investigation. Id. The CAFC 
further noted that while the standard does not require perfection and 
recognizes that mistakes sometimes occur, it does not condone 
inattentiveness, carelessness, or inadequate record keeping. Id.
    For these preliminary results, in accordance with section 
776(a)(2)(A) of the Act, we have determined that the use of facts 
available is appropriate for Anvifish's reported indirect labor usage 
and its unreported containerization.
A. Labor
    Under section 776(a)(2)(D) of the Act, the Department may use facts 
otherwise available in reaching the applicable determination if the 
respondent provides information but the information cannot be verified. 
In the original Section D questionnaire response, Anvifish stated that 
its reported indirect labor included supervisors, technical workers, 
and contract labor but that it did not keep daily records of its 
contract labor. See Anvifish's Section D Questionnaire Response, (May 
4, 2007) at D-12. The Department issued two supplemental questionnaires 
requesting that Anvfish provide supporting documentation for its 
reported technical and contract labor, which were based on estimated 
labor hours. In its supplemental Section D questionnaire response, 
Anvifish stated that it did not see the need to record the working 
hours of the contract labor as they were not paid by the hour. See 
Anvifish's Supplemental Section D Questionnaire Response, (August 13, 
2007) at 23 and Exhibit 27. In its second supplemental Section D 
questionnaire response, Anvifish stated that it reported its technical 
workers as indirect labor and provided a contract for the technical 
workers. See Anvifish's Second Supplemental Section D Questionnaire 
Response, (October 16, 2007) at 32 and Exhibit 28. However, at 
verification, Anvifish stated that they were unable to recreate the 
estimated hours reported for technical and contract labor in Anvifish's 
questionnaire responses because they did not track the actual hours. 
See Anvifish's Verification Report at 38-39 and Exhibit AV VE 15. 
Accordingly, the Department was unable to verify Anvifish's reported 
indirect labor hours for technical and contract labor. Id. Because 
Anvifish did not provide verifiable documentation for Anvifish's 
technical and contract labor, we applied facts available to Anvifish's 
consumption of indirect labor pursuant to section 776(a)(2)(D) of the 
Act.
    Pursuant to section 776(b) of the Act, the Department may use an 
inference that is adverse to the interests of that party in selecting 
from among the facts otherwise available when the party fails to 
cooperate by not acting to best of its ability. See Certain Welded 
Carbon Steel Pipes and Tubes from Thailand: Final Results of 
Antidumping Duty Administrative Review, 62 FR 53808 (October 16, 1997); 
Notice of Final Determination of Sales at Less Than Fair Value and 
Final Negative Critical Circumstances: Carbon and Certain Alloy Steel 
Wire Rod from Brazil, 67 FR 55792, 55794-96 (August 30, 2002). 
Additionally, the Department notes that the standard for using adverse 
facts available (``AFA'') does not condone ``inattentiveness, 
carelessness, or inadequate record keeping.'' See Nippon Steel Corp. v. 
United States, 337 F. 3d 1373, 1382 (Fed. Cir. 2003). Accordingly, 
adverse inferences are appropriate ``to ensure that the party does not 
obtain a more favorable result by failing to cooperate than if it had 
cooperated fully.'' See SAA, at 870. Furthermore, ``{a{time} ffirmative 
evidence of bad faith on the part of a Respondent is not required 
before the Department may make an adverse inference.'' See Antidumping 
Countervailing Duties: Final Rule, 62 FR 27296, 27340 (May 19, 1997).
    In this instance, Anvifish failed to act to the best of its ability 
to provide the Department with indirect labor hours that could be 
verified. Anvifish reported indirect labor hours for technical and 
contract labor. As a respondent, Anvifish had the responsibility to 
accurately report its indirect labor usage rates. However, it was only 
at verification that it became clear that the numbers provided by 
Anvifish had no basis in documentary evidence of actual consumption. 
Despite numerous opportunities, Anvifish did not act to the best of its 
ability to provide accurate, verifiable information. Contrary to 
Anvifish's pre-verification representations, at verification the 
Department discovered that the indirect labor usage rates reported by 
Anvifish were not representative of the actual use of that factor of 
production. Consistent with the Department's practice in other cases 
where a respondent fails to cooperate to the best of its ability, and 
in keeping with section 776(b) of the Act, the Department finds that 
the use of partial AFA is warranted for Anvifish's unverifiable labor 
usage rates. Therefore, for the preliminary results, the Department 
will apply as partial AFA, the single highest month of attendance days 
for the technical workers to calculate the AFA labor usage rate for 
Anvifish's total indirect labor for technical workers and contract 
labor. See Notice of Final Determination of Sales at Less than Fair 
Value: Tetrahydrofurfuryl Alcohol from the People's Republic of China, 
69 FR 34130 (June 18, 2004) and accompanying Issues and Decision 
Memorandum at Comment 1; Notice of Final Antidumping Duty Determination 
of Sales at Less than Fair Value and Affirmative Critical 
Circumstances: Certain Frozen Fish Fillets from the Socialist Republic 
of Vietnam, 68 FR 37116 (June 23, 2003) (``Vietnam Fish Fillets'') and 
accompanying Issues and Decision Memorandum at Comment 1.
B. Containerization
    Under section 776(a)(A) and (D) of the Act, the Department may use 
facts

[[Page 6123]]

otherwise available in reaching the applicable determination if the 
respondent withheld information that had been requested and provides 
information that cannot be verified. In its three Section C 
questionnaire responses, Anvifish did not report that it incurred 
containerization at the port as a sales expense for its sales of 
subject merchandise. However, at verification, the Department 
discovered that Anvifish did incur containerization at the port as a 
sales expense for certain of its sales of subject merchandise. See 
Anvifish's Verification Report, at 27 and GRO VE 9C. Because Anvifish 
withheld this data and failed to report containerization as a sales 
expense to the Department, despite the Department's giving Anvifish two 
additional opportunities to correct its U.S. sales data, we have 
applied facts available for Anvifish's containerization pursuant to 
section 776(a)(2)(A) and (D) of the Act. As partial facts available, 
the Department is deducting containerization using a surrogate value 
for those sales where Anvifish incurred this expense.

Non-Market Economy Country Status

    In every Vietnamese antidumping duty (``AD'') case conducted by the 
Department, Vietnam has been treated as a non-market economy (``NME'') 
country. In accordance with section 771(18)(C)(i) of the Act, any 
determination that a foreign country is an NME country shall remain in 
effect until revoked by the administering authority. See Final 
Determination of Sales at Less Than Fair Value: Certain Frozen and 
Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69 FR 
71005 (December 8, 2004); Certain Frozen Fish Fillets From the 
Socialist Republic of Vietnam: Final Results of the First 
Administrative Review, 71 FR 14170 (March 21, 2006) (``FFF1 Final 
Results''); Certain Frozen Fish Fillets from the Socialist Republic of 
Vietnam: Final Results of the Second Administrative, 72 FR 13242 (March 
21, 2007) (``FFF2 Final Results''). No party to this proceeding has 
contested such treatment. Accordingly, we calculated normal value 
(``NV'') in accordance with section 773(c) of the Act, which applies to 
NME countries.

Separate Rates Determination

    A designation of a country as an NME remains in effect until it is 
revoked by the Department. See section 771(18)(C) of the Act. 
Accordingly, there is a rebuttable presumption that all companies 
within Vietnam are subject to government control and, thus, should be 
assessed a single antidumping duty rate.
    It is the Department's standard policy to assign all exporters of 
the merchandise subject to review in NME countries a single rate unless 
an exporter can affirmatively demonstrate an absence of government 
control, both in law (de jure) and in fact (de facto), with respect to 
exports. To establish whether a company is sufficiently independent to 
be entitled to a separate, company-specific rate, the Department 
analyzes each exporting entity in an NME country under the test 
established in the Final Determination of Sales at Less than Fair 
Value: Sparklers from the People's Republic of China (``Sparklers''), 
56 FR 20588 (May 6, 1991), as amplified by the Final Determination of 
Sales at Less Than Fair Value: Silicon Carbide from the People's 
Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon Carbide'').
A. Absence of De Jure Control
    The Department considers the following de jure criteria in 
determining whether an individual company may be granted a separate 
rate: (1) An absence of restrictive stipulations associated with an 
individual exporter's business and export licenses; and (2) any 
legislative enactments decentralizing control of companies.
    Throughout the course of this proceeding, Anvifish has placed 
sufficient evidence on the record that demonstrate the absence of de 
jure control. Specifically, Anvifish has placed on the record a number 
of documents to demonstrate absence of de jure control including 
business licenses, financial statements, and narrative information 
regarding government laws and regulations on corporate ownership, and 
the companies' operations and selection of management. The evidence 
provided by Anvifish supports a finding of a de jure absence of 
governmental control over its export activities. Thus, we believe that 
the evidence on the record supports a preliminary finding of an absence 
of de jure government control based on: (1) An absence of restrictive 
stipulations associated with the exporter's business license; and (2) 
the legal authority on the record decentralizing control over the 
respondent.
B. Absence of De Facto Control
    The absence of de facto governmental control over exports is based 
on whether a company: (1) Sets its own export prices independent of the 
government and other exporters; (2) retains the proceeds from its 
export sales and makes independent decisions regarding the disposition 
of profits or financing of losses; (3) has the authority to negotiate 
and sign contracts and other agreements; and (4) has autonomy from the 
government regarding the selection of management. See Silicon Carbide, 
59 FR at 22587 and Sparklers, 56 FR at 20589; see, also, Notice of 
Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol 
From the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
    The Department conducted a separate-rates analysis for Anvifish. In 
its questionnaire responses, Anvifish submitted evidence indicating an 
absence of de facto governmental control over its export activities. 
Specifically, this evidence indicates that: (1) Anvifish sets its own 
export prices independent of the government and without the approval of 
a government authority; (2) Anvifish retains the proceeds from its 
sales and makes independent decisions regarding the disposition of 
profits or financing of losses; (3) Anvifish has a general manager, 
branch manager or division manager with the authority to negotiate and 
bind the company in an agreement; (4) the general manager is selected 
by the board of directors or company employees, and the general manager 
appoints the deputy managers and the manager of each department; and 
(5) there is no restriction on Anvifish's use of export revenues. The 
questionnaire responses of Anvifish do not suggest that pricing is 
coordinated among exporters. During our analysis of the information on 
the record, we found no information indicating the existence of 
government control. Therefore, the Department preliminarily finds that 
Anvifish has established prima facie that they qualify for separate 
rates under the criteria established by Silicon Carbide and Sparklers.

Surrogate Country

    When the Department is investigating imports from an NME country, 
section 773(c)(1) of the Act directs it to base NV, in most 
circumstances, on the NME producer's FOPs, valued in a surrogate market 
economy country or countries considered to be appropriate by the 
Department. In accordance with section 773(c)(4) of the Act, in valuing 
the FOPs, the Department shall utilize, to the extent possible, the 
prices or costs of FOPs in one or more market economy countries that 
are: (1) At a level of economic development comparable to that of the 
NME country; and (2) significant producers of comparable merchandise. 
The sources of the surrogate factor values are discussed under the 
``Normal Value'' section

[[Page 6124]]

below and in the Memorandum to the File through Alex Villanueva, 
Program Manager, Office 9 from Julia Hancock, Senior Analyst, Office 9: 
Antidumping Duty Administrative Review of Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam: Surrogate Values for the 
Preliminary Results, (January 22, 2008) (``Factor Valuation Memo'').
    As discussed in the ``Separate Rates'' section, above, the 
Department considers Vietnam to be an NME country. The Department has 
treated Vietnam as an NME country in all previous antidumping 
proceedings. In accordance with section 771(18)(C)(i) of the Act, any 
determination that a foreign country is an NME country shall remain in 
effect until revoked by the administering authority. None of the 
parties to this proceeding contested such treatment. Accordingly, we 
treated Vietnam as an NME country for purposes of these reviews and 
calculated NV, pursuant to section 773(c) of the Act, by valuing the 
FOPs in a surrogate country.
    The Department determined that Bangladesh, Pakistan, India, 
Indonesia, and Sri Lanka are countries comparable to Vietnam in terms 
of economic development.\9\ Once it has identified economically 
comparable countries, the Department's practice is to select an 
appropriate surrogate country from the list based on the availability 
and reliability of data from the countries. See Department Policy 
Bulletin No. 04.1: Non-Market Economy Surrogate Country Selection 
Process (March 1, 2004). In this case, we have found that Bangladesh is 
a significant producer of comparable merchandise. We find Bangladesh to 
be a reliable source for surrogate values because Bangladesh is at a 
similar level of economic development pursuant to section 773(c)(4) of 
the Act, is a significant producer of comparable merchandise, and has 
publicly available and reliable data. See Memorandum to the File, 
through James C. Doyle, Office Director, Office 9, Import 
Administration, and Alex Villanueva, Program Manager, Office 9, from 
Julia Hancock, Senior Analyst, Re: New Shipper Reviews of Certain 
Frozen Fish Fillets from the Socialist Republic of Vietnam: Selection 
of a Surrogate Country, (January 22, 2008). Thus, we have selected 
Bangladesh as the primary surrogate country for this administrative 
review. However, in certain instances where Bangladeshi data was not 
available, we used data from Indian sources.
---------------------------------------------------------------------------

    \9\ See Memorandum from Ron Lorentzen, Director, Office of 
Policy, to Alex Villanueva, Program Manager, China/NME Group, Office 
9: Antidumping Administrative Review of Certain Frozen Fish Fillets 
(``Frozen Fish'') from the Socialist Republic of Vietnam: Request 
for a List of Surrogate Countries (May 23, 2007).
---------------------------------------------------------------------------

Fair Value Comparisons

    To determine whether sales of the subject merchandise made by 
Anvifish to the United States were at prices below NV, we compared 
Anvifish's export price (``EP'') to NV, as described below.

Export Price

    For Anvifish's EP sales, we used the EP methodology, pursuant to 
section 772(a) of the Act, because the first sale to an unaffiliated 
purchaser was made prior to importation and CEP was not otherwise 
warranted by the facts on the record. We calculated EP based on the 
cost and freight foreign port price to the first unaffiliated purchaser 
in the United States. For these EP sales, in accordance with section 
772(c) of the Act, we also deducted billing adjustments, foreign inland 
freight, foreign brokerage and handling, foreign cold storage, and 
international ocean freight from the starting price (or gross unit 
price), where appropriate.
    Where movement expenses were provided by NME-service providers or 
paid for in NME currency, we valued these services using either 
Bangladeshi or Indian surrogate values. See Factor Valuation Memo. 
Where applicable, we used the actual reported expense for those 
movement expenses provided by ME suppliers and paid for in ME currency.

Normal Value

    Section 773(c)(1) of the Act provides that, in the case of an NME, 
the Department shall determine NV using an FOP methodology if the 
merchandise is exported from an NME and the information does not permit 
the calculation of NV using home-market prices, third-country prices, 
or constructed value under section 773(a) of the Act. Because 
information on the record does not permit the calculation of NV using 
home-market prices, third-country prices, or constructed value and no 
party has argued otherwise, we calculated NV based on FOPs reported by 
Anvifish, pursuant to sections 773(c)(3) and (4) of the Act and 19 CFR 
351.408(c). As the basis for NV, Anvifish provided FOPs used in each of 
the stages for processing frozen fish fillets.
    To calculate NV, we valued Anvifish's reported per-unit factor 
quantities using publicly available Bangladeshi, Indian, and Indonesian 
surrogate values. In selecting surrogate values, we considered the 
quality, specificity, and contemporaneity of the available values. As 
appropriate, we adjusted the value of material inputs to account for 
delivery costs. Specifically, we added surrogate freight costs to 
surrogate values using the reported distances from the Vietnam port to 
the Vietnam factory, or from the domestic supplier to the factory, 
where appropriate. This adjustment is in accordance with the decision 
of the CAFC in Sigma Corp. v. United States, 117 F.3d 1401, 1407-1408 
(Fed. Cir. 1997).
    For those values not contemporaneous with the POR, we adjusted for 
inflation using data published in the International Monetary Fund's 
International Financial Statistics. Import data from South Korea, 
Thailand and Indonesia were excluded from the surrogate country import 
data due to generally available export subsidies. See China Nat'l Mach. 
Import & Export Corp. v. United States, CIT 01-1114, 293 F. Supp. 2d 
1334 (CIT 2003), aff'd 104 Fed. Appx. 183 (Fed. Cir. 2004), and Certain 
Cut-to-Length Carbon Steel Plate from Romania: Notice of Final Results 
and Final Partial Rescission of Antidumping Duty Administrative Review, 
70 FR 12651, and accompanying Issues and Decision Memorandum at Comment 
4 (March 15, 2005). Additionally, we excluded prices from NME countries 
and imports that were labeled as originating from an ``unspecified'' 
Asian country. The Department excluded these imports because it could 
not ascertain whether they were from either an NME country or a country 
with general export subsidies. We converted the surrogate values to 
U.S. dollars as appropriate, using the official exchange rate recorded 
on the dates of sale of subject merchandise in this case, obtained from 
Import Administration's Web site at https://www.ia.ita.doc.gov/exchange/
index.html. For further detail, see Factor Valuation Memo.
Preliminary Results of the Reviews
    As a result of our review, we preliminarily find that the following 
margins exist for the period August 1, 2006, through January 1, 2007:

                Certain Frozen Fish Fillets From Vietnam
------------------------------------------------------------------------
                                                               Weighted-
                                                               average
                    Manufacturer/exporter                       margin
                                                              (percent)
------------------------------------------------------------------------
Anvifish...................................................        34.33
------------------------------------------------------------------------

    The Department will disclose to parties of this proceeding the 
calculations performed in reaching the

[[Page 6125]]

preliminary results within five days of the date of publication of this 
notice in accordance with 19 CFR 351.224(b).
    In accordance with 19 CFR 351.301(c)(3)(ii), for the final results 
in an antidumping duty new shipper review, interested parties may 
submit publicly available information to value FOPs within 20 days 
after the date of publication of these preliminary results. Interested 
parties must provide the Department with supporting documentation for 
the publicly available information to value each FOP. Additionally, in 
accordance with 19 CFR 351.301(c)(1), for the final results of this new 
shipper review, interested parties may submit factual information to 
rebut, clarify, or correct factual information submitted by an 
interested party less than ten days before, on, or after, the 
applicable deadline for submission of such factual information. 
However, the Department notes that 19 CFR 351.301(c)(1) permits new 
information only insofar as it rebuts, clarifies, or corrects 
information recently placed on the record. 19 CFR 351.301(c)(1) does 
not envision the submission of additional, previously absent-from-the-
record alternative surrogate value information. Therefore, parties 
should take note that surrogate value data that are introduced as 
rebuttal to a surrogate value submission generally will not fall within 
the meaning and applicability of 19 CFR 351.301(c)(1). See Glycine from 
the People's Republic of China: Final Results of Antidumping Duty 
Administrative Review and Final Rescission, in Part, 72 FR 58809 
(October 17, 2007) and accompanying Issues and Decision Memorandum at 
Comment 2.
    Interested parties may submit case briefs and/or written comments 
no later than 30 days after the date of publication of these 
preliminary results of this new shipper review. See 19 CFR 
351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, 
limited to issues raised in such briefs or comments, may be filed no 
later than 5 days after the deadline for submitting the case briefs. 
See 19 CFR 351.309(d). The Department requests that interested parties 
provide an executive summary of each argument contained within the case 
briefs and rebuttal briefs.
    Any interested party may request a hearing within 30 days of 
publication of these preliminary results. See 19 CFR 351.310(c). 
Requests should contain the following information: (1) The party's 
name, address, and telephone number; (2) the number of participants; 
and (3) a list of the issues to be discussed. Oral presentations will 
be limited to issues raised in the briefs. If we receive a request for 
a hearing, we plan to hold the hearing seven days after the deadline 
for submission of the rebuttal briefs at the U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230.
    The Department intends to issue the final results of these new 
shipper reviews, which will include the results of its analysis raised 
in any such comments, within 90 days of publication of these 
preliminary results, pursuant to section 751(a)(3)(A) of the Act.

Assessment Rates

    Upon completion of the final results, pursuant to 19 CFR 
351.212(b), the Department will determine, and CBP shall assess, 
antidumping duties on all appropriate entries on a per-unit basis.\10\ 
calculate an assessment rate on all appropriate entries. The Department 
intends to issue assessment instructions to CBP 15 days after the date 
of publication of the final results of review. If these preliminary 
results are adopted in our final results of review, the Department 
shall determine, and CBP shall assess, antidumping duties on all 
appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we will 
calculate importer-specific (or customer) per-unit duty assessment 
rates. We will instruct CBP to assess antidumping duties on all 
appropriate entries covered by this review if any importer-specific 
assessment rate calculated in the final results of this is above de 
minimis.
---------------------------------------------------------------------------

    \10\ We divided the total dumping margins (calculated as the 
difference between NV and EP or CEP) for each importer by the total 
quantity of subject merchandise sold to that importer during the POR 
to calculate a per-unit assessment amount. We will direct CBP to 
assess importer-specific assessment rates based on the resulting 
per-unit (i.e., per-kilogram) rates by the weight in kilograms of 
each entry of the subject merchandise during the POR.
---------------------------------------------------------------------------

Cash-Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of the final results of this new shipper review for all 
shipments of subject merchandise from Anvifish entered, or withdrawn 
from warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) For subject 
merchandise produced and exported by Anvifish, the cash deposit rate 
will be that established in the final results of this review (except, 
if the rate is zero or de minimis, no cash deposit will be required); 
(2) for subject merchandise exported by Anvifish but not manufactured 
by Anvifish, the cash deposit rate will continue to be the Vietnam-wide 
rate (i.e., 63.88 percent); and (3) for subject merchandise 
manufactured by Anvifish, but exported by any other party, the cash 
deposit rate will be the rate applicable to the exporter. If the cash 
deposit rate calculated in the final results is zero or de minimis, no 
cash deposit will be required for those specific producer-exporter 
combinations. These cash deposit requirements, when imposed, shall 
remain in effect until further notice.

Notification to Interested Parties

     This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this POR. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    We are issuing and publishing this determination in accordance with 
sections 751(a)(1), 751(a)(2)(B), and 777(i) of the Act and 19 CFR 
351.214(h)(i).

    Dated: January 22, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
 [FR Doc. E8-1899 Filed 1-31-08; 8:45 am]
BILLING CODE 3510-DS-P